Bombay High Court
Santosh Asaram Rathod vs The State Of Maharashtra on 2 May, 2024
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 126 OF 2019
Santosh Asaram Rathod,
Age; 27 years, Occ; Service,
R/o; Ghonsi Tanda,
Tq. Ghansawangi,
District; Jalna. ...Appellant
(Orig. Accused No. 1)
VERSUS
The State of Maharashtra ...Respondents
(Orig. Complainant)
...
Advocate for the appellant : Mr. Sudarshan J. Salunke
APP for Respondent State : Mr. D.J. Patil
...
CORAM : ABHAY S. WAGHWASE, J.
Date : 02.05.2024.
JUDGMENT :
1. By consent of both the parties, appeal is taken up
for final hearing and disposal at the admission stage itself.
2. The correctness, legality and maintainability of
judgment and order of conviction passed by learned Additional
Sessions Judge, Jalna, in Sessions Case No. 27 of 2013 dated
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11.01.2019, recording guilt of husband for offence under
Section 498-A of the Indian Penal Code [IPC], is challenged
herein by way of instant appeal.
PROSECUTION STORY IN SHORT IS AS UNDER
3. Prosecution case in brief is as under :
Deceased Ravina daughter of the informant PW-2
Ashok, was married with present appellant Santosh six
months prior to the incident. At the time of marriage an
amount of Rs. 1.5 Lakhs was decided to be given by way of
dowry and even an amount of Rs. 1 Lakh was duly paid.
According to the prosecution for remaining amount of
Rs.50,000/- husband and in-laws were ill-treating deceased
Ravina. After one month of her co-habitation with accused,
there was illegal demand of money for setting up a grocery
shop and on account of non fulfillment of such demand, she
was subjected to cruelty.
4. It has also the case of the prosecution that the
husband was suspecting fidelity of wife Ravina and harassed
her both physically and mentally and precisely getting fed up
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of the same, Ravina immolated herself and resultantly
suffered 89% burn. While under treatment her dying
declaration was recorded.
5. However, she succumbed to the burns on
02.10.2017 and after last ritual father her set the law into
motion.
6. The husband and in-laws were charge sheeted and
tried by the learned Additional Sessions Judge, Jalna, who
appreciated the oral and documentary evidence and acquitted
in-laws from all offences i.e. from Section 304-B, 498-A, 323,
504, 506 r/w 34 of the Indian Penal Code (IPC) and under
Section 3 & 4 of the Dowry Prohibition Act, however, learned
trial Judge held the appellant husband Santosh alone guilty
for the offence punishable under Section 498-A of the IPC.
Hence instant the appeal at his instance.
SUBMISSIONS
On behalf of the appellant :
7. On behalf of appellant, learned Counsel pointed
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out that apparently there is false implication. According to
him, prosecution has miserably failed to establish its case and
charges beyond the reasonable doubt. He further pointed out
that necessary ingredients for attracting even offence under
Section 498-A IPC are patently missing from the prosecution
evidence. He pointed out that on the same set of evidence,
in-laws/parents of appellant are already acquitted but
surprisingly, on same evidence husband alone is held guilty.
According to him, there is no proper reasoning by the trial
Judge for doing so. He also pointed out that specific instances
and nature of ill-treatment are not stated by any of the
prosecution witnesses. According to him, there was no
previous complaint of any nature and even no complaint was
lodged on 26.09.2012 i.e. on the day of burns suffered by
Ravina. Rather according to him, false and afterthought
complaint is lodged after due deliberation later on. He pointed
out that police machinery recorded dying declaration on 26 th S
September, itself. But on same day also FIR is not lodged for
the best reasons known to the investigating machinery.
8. He pointed out that the grand father of Ravina
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claimed to have received oral D.D. Informant father had not
received any oral D.D. Moreover, grand-father did not lodge
complaint on receipt of oral D.D. and therefore, it is his
submission that there is apparently false implication out of
annoyance of loosing victim who immolated herself in anger.
9. Lastly, he submitted that inspite of such weak
evidence on record, learned trial Judge recorded guilt.
According to him, there is improper appreciation of both
evidence as well as law and hence he seeks indulgence at the
hands of this Court for setting aside the impugned judgment.
On behalf of the State :
10. Learned APP strongly opposed the appeal by
pointing out that barely six months after the marriage, there
was ill-treatment to the deceased, on account of demand of
dowry. He pointed out that on account of non fulfillment of
demand, husband and in-laws ill-treated and harassed the
victim. She promptly reported it to her parents. The family
members like father, grand-father are examined by the
prosecution. He further pointed out that the husband even
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suspected her character and thereby made her life miserable.
According to him, precisely for such maltreatment and
harassment, deceased poured kerosene on her person and set
her on fire. Consequently, the husband is solely responsible
and therefore, he is correctly held guilty. According to him,
the learned trial Court has correctly appreciated the evidence
and rightly convicted the appellant/husband. According to
him, there is no merit in the appeal and so he prays for
dismissal of the appeal.
GIST OF THE PROSECUTION EVIDENCE IN TRIAL COURT
11. Prosecution has examined following eight witnesses
to establish its case:
PW-1 Vasant, who acted as pancha to spot panchanama,
has not supported the prosecution case.
PW-2 The informant/father, Ashok has examined at Exh.
63. The sum and substance of his evidence is that
his daughter Ravina was married with present
appellant Santosh. He deposed that the dowry
amount of Rs. 1.5 lakhs was fixed. Out of which
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1 lakh was paid. After one month husband and in-
laws put up demand of remaining dowry for setting
up a grocery shop. His daughter informed him about
the demand as well as ill-treatment by in-laws.
According to him, on 26.09.2012, around 5.30 p.m. a
message was received about the burn by Ravina.
They all went to the hospital. Ravina died on
02.10.2012 and after her funeral, Ashok lodged
report to the police station.
PW-3 Uttam, the neighbour, who did not support the
prosecution case.
PW-4 Rangrao, is Police Head Constable, who recorded
dying declaration Exh. 74.
PW-5 Deshmukh, he also recorded dying declaration on the
information given by the father of the deceased
Ashok.
PW-6 Dr. Raut, who has issued endorsement of fitness of
patient to give statement.
PW-7 Babu, is the grand father, who deposed that after
marriage the in-laws and husband ill-treated and
harassed the deceased Ravina on account of demand
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of dowry. He further learnt from the father of Ravina
that Ravina herself set herself on fire. Thereafter,
they all visited the hospital. According to him, in the
hospital Ravina told him about the ill-treatment
meted to her at the hands of in-laws and husband
and therefore, she herself set her on fire.
PW-8 Vitthal, is the Investigating Officer, who narrated that
all efforts have been taken by him during the
investigation till filing of the charge-sheet.
12. On appreciation of evidence of above eight
witnesses, learned trial Court acquitted in-laws from all
charges but recorded guilt and conviction of appellant
husband alone that too for charge of 498-A IPC only.
13. Before re-appreciating and re-analyzing the
evidence, it is desirable to give a brief account of the settled
legal requirements and position while appreciating evidence
for charge and offence under section 498-A of the IPC.
14. Law is fairly settled that, for attracting the charge under section
498A of IPC, prosecution is duty bound to prove following essential
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ingredients :-
"(1) A woman was married;
(2) She was subjected to cruelty;
(3) Such cruelty consisted in -
(i) any lawful conduct as was likely to drive such
woman to commit suicide or to cause grave injury or
danger to her life, limb or health whether mental or
physical;
(ii) harm to such woman with a view to coercing her
to meet unlawful demand for property or valuable
security or on account of failure of such woman or any of
her relations to meet the lawful demand ;
(iii) the woman was subjected to such cruelty by her
husband or any relation of her husband."
JUDICIAL PRECEDENT :
15. As to what actually constitutes cruelty has been lucidly and
succinctly dealt in the landmark case of Giridhar Shankar Tawade v.
State of Maharashtra (2002) 5 SCC 177, where the Court dwelling
upon the scope and purport of Section 498-A IPC has held as under:
"The basic purport of the statutory provision is to avoid
'cruelty' which stands defined by attributing a specific
statutory meaning attached thereto as noticed herein
before. Two specific instances have been taken note of in
order to ascribe a meaning to the word 'cruelty' as is
expressed by the legislatures : Whereas explanation (a)
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involves three specific situations viz., (i) to drive the
woman to commit suicide or (ii) to cause grave injury or
(iii) danger to life, limb or health, both mental and
physical, and thus involving a physical torture or atrocity,
in explanation (b) there is absence of physical injury but
the legislature thought it fit to include only coercive
harassment which obviously as the legislative intent
expressed in equally heinous to match the physical injury :
whereas one is patent, the other one is latent but equally
serious in terms of the provisions of the statute since the
same would also embrance the attributes of 'cruelty' in
terms of Section 498-A." [emphasis added]
Similar views are echoed in Gurnaib Singh v. State of Punjab
(2013) 7 SCC 108, wherein it is held as under:
"Clause (a) of the Explanation to the aforesaid provision
defines "cruelty" to mean "any willful conduct which is of
such a nature as is likely to drive the woman to commit
suicide". Clause (b) of the Explanation pertains to unlawful
demand. Clause (a) can take in its ambit mental cruelty."
In State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15
SCC 582, the Hon'ble Apex Court has observed that, " Harassment
simplicitor is not cruelty. Only when such harassment is committed
for the purpose of coercing a woman or any other person to meet an
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unlawful demand or property etc. alone would amount to cruelty
punishable under Section 498-A IPC".
In Bhaskar Lal Sharma v. Monica (2009) 10 SCC 604, the
Hon'ble Apex court reiterated the essential ingredients for the said
offence and pleadings which are necessary in that regard.
Very recently in the case of K. Subba Rao v. The State of
Telangana (2018) 14 SCC 452, following observations are made:
"6. The Courts should be careful in proceeding against
the distant relatives in crimes pertaining to matrimonial
disputes and dowry deaths. The relatives of the husband
should not be roped in on the basis of omnibus allegations
unless specific instances of their involvement in the crime
are made out."
ANALYSIS
16. PW-1 is the panch to the spot panchanama.
17. On studying evidence of father PW-2, who is
examined at Exh. 63, the sum and substance is that six
months prior to the incidence his daughter was married to
appellant. According to him, out of 1.5 lakhs dowry as agreed,
1 lakh was paid and for remaining Rs. 50 thousand the
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husband beat her. His daughter informed him about it and he
gave understanding. Then he speaks of receiving message of
burns to his daughter on 26.09.2012, that while under going
treatment she expired on 02.10.2012. After P.M., funeral, he
lodged report Exh. 64.
18. On visiting his cross he seems to have answered
that, matrimonial house of his other daughter Meera is 200
feet away from the house of Ravina. While fixing marriage,
people of Ghonsi Tanda were present but he is unable to give
their names. According to him, his daughter talked to him on
phone. He admitted that since 26.09.2012 up to 02.10.2012,
he was in the hospital but till her death he did not lodge
complaint of ill-treatment. He stated that he informed in the
report about accused/husband raising suspicion on Ravina,
but he is unable to assign any reason as to why it is not
written in the report.
19. PW-3, neighbour did not support prosecution.
20. PW-4 is the constable who recorded dying
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declaration Exh. 74. According to him, she narrated that
husband suspected her, beat her. That, on 26.09.2012, when
she was with her in-laws, husband beat her and therefore,
due to anger she poured kerosene on herself and set her on
fire.
In cross he admitted that he is unable to state
whether victim appended thumb impression of right hand or
left hand. He admitted that as per Exh. 75, Kadim Jalna
Police Station received statement on 27.09.2012.
21. PW-5 is the PSO, who entertained report of PW-2
father on 02.10.2012 and registered crime bearing No. 104 of
2012 for offences punishable under section 304-B, 498-A,
323, 504, 506, 34 of IPC and 3 and 4 of the Dowry Prohibition
Act.
22. PW-6 is the Medical Officer, who gave endorsement
of fitness of patient to give statement after PW-4 approached.
23. PW-7, grant-father also stated that 1.5 lakhs was
fixed as dowry. 1 lakhs was paid and 50,000/- was remained.
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Husband and in-laws demanded remaining dowry and ill-
treated her. After getting news he visited hospital, where she
narrated to him that due to ill-treatment of family members
she set herself on fire.
24. PW-8 is the I.O, who carried the investigation and
filed the charge-sheet.
25. On analyzing the above evidence it is emerging that
the exact date of marriage has not been stated by the father or
grant-father. Informant father speaks about marriage taking
place prior to the incident dated 26.09,2012. Neither he, nor
his father i.e. PW-7 are giving exact nature of ill-treatment or
instances of ill-treatment. They merely speak of harassment
or ill-treatment for remaining dowry. There is no independent
witness about fixed dowry or part payment. According
informant, husband demanded money for setting grocery shop
but grand-father does not speak about it. Cross of informant
shows the version about suspicion of character by husband is
not reported in FIR. Resultantly version to that extent in
witness box is improvised. Evidence of grant-father
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is only about demand and ill-treatment. His evidence is silent
about suspicion on character. Even otherwise, such
accusation is general in nature as both of them are not
clarifying on whom husband suspected his wife had relations
with. Therefore, there is weak and fragile evidence about 498-
A of the IPC.
26. Though police machinery took steps to record
dying declaration on 26.09.2012, there is no lodgment of FIR
on said D.D. Deceased died on 02.10.2012. After P.M. and
ritual, father seems to have lodged report i.e. regarding
occurrence which took place on 26.10.2012. Consequently FIR
apparently delayed.
27. On going through the contents of D.D., Exh. 74, it
is emerging that deceased narrated that on 26.09.2012, when
all family members were in the house, husband beat her by
raising suspicion, but on what suspicion was raised is unclear
and obscured. She does not specifically state regarding what
or with whom she was tried to be related to hold that there
was suspicion of her character. She merely speaks of pouring
kerosene and igniting herself in the rage of anger. Solitary
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instance of beating that day seems to have triaged the
incident. Even otherwise, husband is acquitted from charge
under Sectikon 304 or 306 of IPC. There is no material
suggesting consistent or incessant cruelty to gravitate to
attract Section498-A of IPC.
SUMMATION
28. On critical analysis of above evidence, there is little
weak or no evidence on the point of ill-treatment or cruelty.
FIR is apparently delayed one. On same set of evidence,
parents-in-law are already acquitted. Nature and instances of
ill-treatment are not coming on record. Hence in the
considered opinion of this Court, with such quality of evidence
and in the light of above discussion, charge under Section
498-A of the IPC cannot be recorded and upheld.
29. In the considered opinion of this Court, there is
apparently improper appreciation of evidence as well as law by
the trial Court. Hence the indulgence at the hands of this
Court becomes necessary. Hence the following order
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ORDER
I) Criminal Appeal stands allowed.
II) The conviction awarded to appellant-
Santosh Asaram Rathod in Sessions Case No.
27 of 2013 by the learned Additional Sessions
Judge, Jalna on 11.01.2019 for the offence
punishable under Sections 498A of Indian
Penal Code, stands quashed and set aside.
III) The appellant stands acquitted of the
offence punishable under Sections 498A of
Indian Penal Code.
IV) Bail bonds furnished by the appellant
stands cancelled.
V) The fine amount deposited, if any, be
refunded to the appellant after the statutory
period is over.
VI) It is clarified that there is no change as
regards the order in respect of disposal of
muddemal.
[ ABHAY S. WAGHWASE ]
JUDGE
mahajansb/
