Bombay High Court

Subhash Chandra Dube vs The State Of Maharashtra on 23 July, 2025

Author: Sarang V. Kotwal

Bench: Sarang V. Kotwal

2025:BHC-AS:31678



                        Gokhale                            1 of 23                         902-apeal-737-1997 (J)


                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                                            CRIMINAL APPEAL NO. 737 OF 1997

                      Subhash Chandra Dube                                                 ..Appellant
                           Versus
                      The State of Maharashtra                                             ..Respondent

                                                  __________
                      Ms. Ranjan J. Rajgor for the Appellant.
                      Mr. Pankaj P. Devkar, APP for State/Respondent.
                                                  __________

                                                      CORAM : SARANG V. KOTWAL, J.
                                                      DATE : 23 JULY 2025

                      JUDGMENT:

(PER SARANG V. KOTWAL, J.)

1. The Appellant has challenged the Judgment and order

dated 17.11.2017 passed by the learned Additional Sessions

Judge, Greater Bombay, in Sessions Case No.1216 of 1987.

Originally, there were four accused. The Accused No.2

Kamlaprasad A. Dubey and the Accused No.3 Smt.Gulabdevi K.

Dubey passed away during the pendency of the trial and,

therefore, the trial against them was abated. The trial was

proceeded only against the present Appellant who was the Accused

No.1 and one Taradevi Dubey who was the Accused No.4. The

Accused No.4 Taradevi was the wife of the Appellant's brother. The

Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2025.07.29 11:27:57 +0530

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learned Judge convicted the Appellant for commission of the

offence punishable U/s.498A and 306 of the I.P.C. and sentenced

him to suffer R.I. for one year and to pay a fine of Rs.8000/- and

in default to undergo further R.I. for one year.

The Appellant was acquitted from the charges of

commission of the offence punishable U/s.304-B of the I.P.C. The

other accused Taradevi was acquitted from all the charges. The

Appellant was granted set off for the period which he had already

undergone as under-trial prisoner.

2. The prosecution case is that, the Appellant had got

married with the victim in the year 1980. There are allegations

that, his family members demanded dowry from the victim's father.

Their demands were fulfilled but she was not treated properly in

the house of the appellant. There are allegations that the appellant

did not keep physical relations with the victim. On one occasion,

she had gone back to her parental house at Hyderabad and stayed

there for one and a half year. After that, because of a common

meeting between the elders from both the families, it was decided

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that the victim should go back to her matrimonial house. She was

reluctant, but she went back to stay with the Appellant's family. On

05.09.1986, she committed suicide by burning herself. The F.I.R.

was lodged by her father. The investigation was carried out. After

filing of the charge-sheet, the case was committed to the Court of

Session.

3. The prosecution examined seven witnesses including the

father, the brother and the relatives of the victim. One neighbour

of the victim was also examined. Besides them, pancha for the spot

panchanama, the Medical Officer who had proved the Postmortem

notes, and the investigating officers were examined.

4. The defence of the Appellant was of total denial. In

addition, he stated that, he was living with the victim as husband

and wife. She was insisting him for staying separately from his

parents, but he did not agree. She was insisting to go back to her

parent's house. On the day of the incident, he was not at home. He

had gone to donate blood. In addition, he examined a defence

witness Bateshwarnath Dubey who was his uncle.

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5. The learned Trial Judge after hearing the arguments,

held that, not keeping physical relations would amount to cruelty

within the meaning of Section 498A of the I.P.C.; and would

amount to abetment in connection to the offence U/s.306 of the

I.P.C. He also relied on the presumption U/s.113A of the Evidence

Act, because the incident had taken place within seven years of the

marriage. Based on this reasoning, the learned Judge convicted

and sentenced the Appellant. He showed leniency only because the

trial took quite a while, and in the meantime, the Appellant had

got married and he had two daughters and one son from that

marriage.

6. Heard Ms. Ranjan Rajgor, learned counsel for the

Appellant and Mr. Pankaj Devkar, learned APP for the State.

7. The F.I.R. in this case is lodged by PW-1 Sankataprasad

Dubey who was the father of the victim. He has stated that, he was

residing at Hyderabad. He had three sons and three daughters.

The victim was the second child. His native place was at Jaunpur.

In the year 1980, his daughter-the victim had got married with the

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Appellant. The marriage took place at Jaunpur. At that time, the

Appellant was studying in college. He was residing in Mumbai

with his parents, two brothers and the other accused who was the

wife of his brother. Two to three months prior to the marriage, the

Appellant's parents and his grand-mother had come to PW-1's

native place at Jaunpur to see his daughter-the victim. At that

time, the Appellant had not accompanied them. He further

deposed that, at that time, they demanded Rs.10000/- in cash, 15

tolas gold and one bullet motorcycle. PW-1 could not make any

arrangement for purchasing the motorcycle. The Appellant's

parents came to know about his inability. They informed PW-1

that, if the bullet motorcycle was not given, the marriage would

not take place. PW-1 then sent cash amount of Rs.13000/-.

However, it was not accepted and they demanded a Demand Draft

of Rs.13000/-. Even that demand was met by PW-1. He further

stated that, in the year 1983 gauna ceremony was performed.

Between the marriage and the gauna ceremony the Appellant

never visited PW-1's house at Jaunpur where the victim was

residing. After the gauna ceremony, the victim was taken to

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Mumbai by the Appellant and his father.

8. After six to seven months, PW-1 came to Mumbai on

some business trip. He met his daughter-the victim. She did not

look happy. On enquiry with her, she told him that she was being

assaulted by her in-laws and was not treated well. PW-1 came back

to Hyderabad. After about one and a half month, PW-1 sent his son

Jayprakash (PW-4) to Mumbai to bring her back to Hyderabad.

Accordingly, PW-4 Jayprakash brought the victim to Hyderabad.

The victim told them that she was not happy in her matrimonial

house. She was being assaulted by her father in law, mother in law

and the Accused No.2. She informed that, even the Appellant used

to assault her and did not keep physical relations with her. She

further informed them that she was suspecting that the Appellant

was having relations with the Accused No.2 and that he had told

the victim that, if she disclosed it to anyone else, she would be set

on fire.

9. On 24.04.1984, there was some ceremony in respect of

PW-1's new house. At that time, the Appellant's family members

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had attended that ceremony, but the Appellant had not

accompanied them. The Appellant's family complained to PW-1

that the victim could not cook properly, but there were some

pacifying talks and they took the victim to Mumbai. PW-4

Jayprakash was sent to Mumbai by PW-1 to see the victim's

welfare. At that time, PW-4 Jayprakash informed PW-1 that the

Appellant's family was demanding a flat at Bandra. PW-1 was not

in a position to fulfill that demand and, therefore, the victim was

again brought back to Hyderabad. She stayed there for one and a

half year. During that period, nobody from the Appellant's family

including the Appellant came to see or enquired about the victim.

10. In May 1986, both the families met in a marriage

ceremony at Banaras. But again, the Appellant was not present

there. His family agreed to take back the victim to Mumbai. Again

there was some discussion at Jaunpur. Since the Appellant was not

present, the victim's family was reluctant to send her with the

Appellant's family members. They wanted some assurance about

her well-being. On 13th June, the Appellant and his father came to

Jaunpur and took the victim to Mumbai. After that, PW-1's brother

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Mahendrapratap Dubey (PW-2) tried to meet the victim, but he

was not allowed to see the victim. PW-1 telephoned the victim, but

she did not say anything about her well-being; even though, PW-1

enquired with her.

11. On 6th September, he received a message that his

daughter-the victim was serious and was hospitalized. PW-1 called

the Appellant's father, who told PW-1 that the victim had burned

herself. He requested PW-1 to come to Mumbai. PW-1 was

informed that the victim had committed suicide by setting herself

on fire. PW-1 suspected some foul play and did not believe that his

daughter could have committed suicide. Therefore, he lodged the

F.I.R. with the police.

PW-1 was subjected to a lengthy cross-examination. He

was asked about his shop and his financial condition, as well as,

his family background. He stated that the victim was seen by the

Appellant's parents and his grand-mother at PW-1's residence at

Mujra, Jaunpur. When they liked the victim, they had given one

saree to mark their approval. Seven to eight days after that, the

9 of 23 902-apeal-737-1997 (J)

Appellant's parents met PW-1 at Jairampur for deciding the terms

of marriage. The Appellant had not come to their house after

marriage because the gauna ceremony as per the customs was not

performed. He admitted that, in his statement before the police, he

had not stated that the Appellant had assaulted or insulted the

victim. He also could not assign any reason as to why it was not

mentioned in his statement before the police that PW-4 Jayprakash

had informed him telephonically regarding the demand of a flat.

Importantly, he also admitted that the victim had not informed him

regarding the Appellant not keeping physical relations with her

and that he was having relations with the Accused No.2. PW-1

volunteered to state that the victim had given that information to

her mother i.e. PW-1's wife and then that information was

conveyed to him by his wife. Thus, as far as, this particular

allegation is concerned, it becomes a hearsay evidence, as far as,

PW-1 is concerned. PW-1 then denied the suggestion that the

victim wanted to stay separately and since the Appellant did not

agree, there used to be quarrels between PW-1 and the Appellant's

father.

10 of 23 902-apeal-737-1997 (J)

12. PW-2 Mahendrapratap Dubey was the uncle of the

victim. PW-2 was residing in Mumbai and he occasionally used to

visit the victim's matrimonial house. He has deposed about the

demand of money by the Appellant's family. Whenever he used to

visit the victim's house, she used to tell him that she was being

illtreated by her in-laws and the Appellant. They started harassing

her on demand of a flat. PW-4 Jayprakash came to Mumbai and

took her to Hyderabad. PW-2 was also cross-examined about his

business and his financial status. He admitted that, when the

negotiation during the talks before the marriage was going on, he

was in Mumbai, therefore, he could not have had personal

knowledge about such demands. He further deposed in his cross-

examination that, when he used to visit the victim's house, at that

time, the Appellant, his father and some ladies used to prevent him

from talking with the victim. But he could not assign any reason as

to why this fact was not mentioned in his statement before the

police. Thus, there is an omission regarding that aspect. He also

could not explain as to why his statement before the police did not

mention that the victim was harassed and was unhappy.

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13. PW-3 Suresh Waher was a pancha for the spot

panchanama. He has described the spot after the incident of the

deceased setting herself on fire had taken place in the house of the

Appellant. The fact that the victim had suffered burn injuries is not

in dispute.

14. PW-4 Jayprakash Dubey was the brother of the victim.

His evidence proceeds exactly on the same lines as that of PW-1

Sankataprasad. He added that his father had informed him that

the victim was not happy in her matrimonial house. PW-4 came to

Mumbai in October 1983. At that time, the victim told him that the

Appellant's parents used to scold her, the Appellant was not

keeping physical relations with her and that she was suspecting

that the Appellant was having extra marital relations with the

Accused No.2 who was his sister in law. Seeing that the victim was

unhappy, PW-4 took her to Hyderabad. In April 1984, there was

some ceremony of PW-1 and PW-4's new house. The other family

members of the Appellant attended that function but the Appellant

had not come. PW-4 has stated that the Appellant was studying for

his examinations at that time. After some time, the Appellant's

12 of 23 902-apeal-737-1997 (J)

family started demanding a flat. PW-2 Mahendrapratap told PW-4

that, whenever PW-2 Mahendrapratap visited her house, he was

not allowed to have conversation with the victim. He then deposed

about the various meetings between both the parties. But he has

not deposed that the Appellant was present during any such

discussion.

In the cross-examination, he admitted that, he could

not recollect whether he had stated before the police that the

victim had told him that the Appellant's parents had scolded her,

that the Appellant was not keeping physical relations with her and

that she was suspecting that the Appellant was having extra

marital relations with his sister in law. According to him, the

Appellant and his father had agreed to take the responsibility of

the victim if she was sent to Mumbai, but he could not assign any

reason as to why this particular fact was not mentioned in his

statement before the police.

15. PW-5 Ms. Sumanlata Gupta is another important

witness. She was residing near PW-1 Sankataprasad's house at

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Hyderabad. She was knowing his family. When the victim had

come to reside at Hyderabad after her marriage, PW-5 visited her

house and asked her as to why the victim was not going to

Mumbai. At that time, the victim told her that she was not happy

as her husband was not keeping physical relations with her and

that he was having extra marital relations with his sister in law.

This witness has further deposed that for one and a half year the

victim stayed at Hyderabad. Thereafter the elders in both the

families decided that the victim should be taken back by the

Appellant and his family to Mumbai. Before she left Hyderabad,

PW-5 had called her for lunch. At that time, the victim was crying

and had told PW-5 that she was not inclined to go to her

matrimonial house and was scared that she could be harassed.

However, since the elders had taken the decision to send her, she

had to go to Mumbai. After three to four months from that, PW-5

received the news of the victim's death.

In the cross-examination, she admitted that, when she

asked the victim as to why she was not going to Mumbai, at that

time, her mother was also present.

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16. PW-6 P.I. Laxman Pimpalkar was the first investigating

officer. He deposed that on 05.09.1986 at about 7:50p.m., SI Malvi

received an information that the victim had committed suicide by

setting herself on fire. The F.I.R. was lodged by SI Malvi. PW-6

then recorded statements of a few witnesses. He arrested all the

four accused. After that, the investigation was taken over by Dy.S.P.

Deshpande of State CID.

In the cross-examination, he admitted that the persons

whose statements were recorded were not examined in the Court.

That means, the omissions put to the witnesses by the defence

counsel could not be proved through this witness's evidence. No

other investigating officer who had recorded those statements was

examined.

17. PW-7 Dr. Vitthal Vidurkar was attached to Cooper

Hospital. He produced the postmortem notes in respect of the

victim. The Postmortem notes show that the victim had suffered

99% burn injuries.

In the cross-examination, he stated that, it was not

15 of 23 902-apeal-737-1997 (J)

possible to ascertain whether the deceased had sexual intercourse

at any time, merely by examining her at the time of postmortem

examination.

18. The Appellant examined DW-1 Bateshwarnath Dubey. He

has deposed about the marriage between the Appellant and the

deceased. At that time, the Appellant was studying B.Com. He

deposed that, no specific demand for dowry was made. It was

agreed that on considering the status of both the parties, the

marriage should be performed and nothing was demanded by the

Appellant's family in the marriage. The Appellant's family had a lot

of property at Mumbai and at their native place.

This is the evidence led by the prosecution.

19. Learned counsel for the Appellant made the following

submissions:-

The prosecution has failed to prove its case beyond

reasonable doubt. The prosecution has failed to prove that the

Appellant was having extra marital relations with the Accused

No.2. There are no specific allegations against the Appellant that

16 of 23 902-apeal-737-1997 (J)

he had assaulted or harassed the victim at a particular time. He

was not present when the negotiations before the marriage took

place. He had not made any demand and, therefore, he was not

concerned with the allegations of harassment for not fulfilling the

demands. There was not a single statement by any of the witnesses

that the Appellant was harassing the victim for not fulfilling the

demand. There are important omissions from the deposition of the

witnesses.

Learned counsel submitted that the evidence shows

that the Appellant and the victim both were quite young. The

victim was not highly educated. She had studied only at the school

level. The Appellant had studied upto B.Com. Therefore, there

could be educational incompatibility between the couple, but that

would not mean that there was cruelty on the part of the

Appellant. She submitted that the allegations of the appellant not

keeping physical relations with the victim are not proved. PW-1

Sankataprasad was not told by the victim about such allegations.

He was informed by the victim's mother. PW-4 Jayprakash is an

unreliable witness. The victim had no reason to tell such intimate

17 of 23 902-apeal-737-1997 (J)

details to PW-4 Jayprakash. The victim's mother is not examined.

She would have been the most important witness. The victim's

suspicion about the Appellant having extra marital relations with is

own sister in law is unfounded. There is no such evidence. The

evidence of PW-5 Sumanlata, in fact, shows that the deceased was

very reluctant to go back to her matrimonial house and that could

be the reason she had committed suicide. She submitted that the

presumption U/s.113A of the Indian Evidence Act stands rebutted

by the evidence led by the prosecution itself.

20. Learned counsel for the Appellant relied on the

observations of a Single Judge bench of the High Court of

Karnataka, in the case of Aiyappa M.B. and others Versus State of

Karnataka and another1. She submitted that, not keeping physical

relations will not amount to cruelty within the meaning of Section

498A of the I.P.C., and also U/s.306 of the I.P.C.; as it would not

amount to abetment to commit suicide.

21. Learned APP opposed these submissions. According to

him, there is evidence to show that the Appellant used to assault

1 2023 SCC OnLine Kar 30

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the victim. The fact that the Appellant was not keeping physical

relations is proved by the fact that he had not visited PW-1's house

for one and a half year where the victim was residing. All this is in

consonance with the prosecution case that the victim was harassed

leading her to commit suicide. Therefore, the offences U/s.498A,

as well as, under Section 306 of the I.P.C. are made out.

22. I have considered these submissions. The prosecution

has heavily relied on the evidence of PW-1 Sankataprasad, PW-2

Mahendrapratap, PW-4 Jayprakash and PW-5 Sumanlata to prove

the offence U/s.498A of the I.P.C. The prosecution also relied on

the same evidence to show that there was abetment to commit

suicide and, therefore, according to the prosecution case, the

ingredients of Section 306 of the I.P.C. are also attracted. The

evidences of these witnesses show that, when the marriage talks

took place, at that time, the Appellant had not participated, in fact,

he was not even present at the native place of PW-1 Sankataprasad

at that time. The demand, if at all, was made by the Appellant's

parents. In the entire evidence, there is nothing to show that the

Appellant himself had demanded any specific articles or cash from

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the victim's family or on that ground he had harassed the victim.

23. At one place, PW-1 Sankataprasad had stated that the

Appellant used to assault the deceased. However, his cross-

examination shows that, he had not stated so in his statement

before the police i.e. in the F.I.R. PW-4 Jayprakash had not deposed

that the Appellant was assaulting the victim. Therefore, these

allegations regarding the assault by the Appellant are not proved

by the prosecution. The only allegations which are seriously relied

upon by the learned APP are about the Appellant not keeping

physical relations with the deceased; thereby causing mental

cruelty to her. As far as these allegations are concerned, though

PW-4 Jayprakash had deposed about these allegations, his cross-

examination shows that he had not stated so in his statement

recorded by the police. This particular omission may not have been

asked to PW-6 I.O. Laxman because he has not stated that he had

recorded the statement of PW-4. In fact, he has stated that the

witnesses whose statements he had recorded were not examined

by the prosecution. As far as, PW-1 is concerned, he has admitted

that the victim had not told him directly about these allegations

20 of 23 902-apeal-737-1997 (J)

that the Appellant was not keeping physical relations with him, but

he got this information from his wife i.e. the mother of the victim.

Therefore, as far as, PW-1 Sankataprasad is concerned, he was not

told directly by the victim about these allegations and, therefore,

this version, as far as, he is concerned, is a hearsay evidence and,

therefore, it is not admissible.

24. As mentioned earlier, there is no evidence to show that

the Appellant was having any illicit relations with the accused

No.2. It was only a suspicion entertained by the victim. In this

respect, I find force in the submission of the learned counsel for

the Appellant that these allegations would not fall within the

meaning of 'cruelty' U/s.498A of the I.P.C. These allegations are

not proved beyond a reasonable doubt by the prosecution

witnesses. Learned counsel for the Appellant rightly relied on the

Judgment of the High Court of Karnataka in Aiyappa's case.

Paragraph-19 of this Judgment is relevant which reads thus:

"19. Insofar as the husband/1st petitioner is concerned, the complaint narrates several grievances and those grievances are trivial in nature. It is the averment that the complainant knew about the attitude of the husband. Even then, she gets married

21 of 23 902-apeal-737-1997 (J)

due to the force of elders of the family thinking that the husband would become alright and stayed only for 28 days in the matrimonial house. In those 28 days, neither the complaint nor the summary charge sheet narrates any factum/incident that would become an ingredient of Section 498A of the IPC. The only allegation is that, he is a follower of Brahmakumari; always was watching videos of one sister Shivani, a Brahmakumari; gets inspired by watching those videos, always told that love is never getting physical, it should be soul to soul. On this score, he never intended to have physical relationship with his wife. This would undoubtedly amount to cruelty due to non- consummation of marriage under Section 12(1)(a) of the Hindu Marriage Act and not cruelty as is defined under Section 498A of the IPC. It is on the basis of such cruelty a decree of divorce is granted to the complainant and on the same basis, criminal proceedings cannot be permitted to be continued. Finding no ingredient even against the husband, the proceedings if permitted to continue would degenerate into harassment, become an abuse of the process of law and ultimately result in miscarriage of justice."

25. As far as, PW-5 Sumanlata is concerned, though she

claims that the victim had told her about the Appellant not keeping

physical relations with her, the victim's mother was present at that

time. She is not examined. She would have been the best person to

depose about it. There is no explanation forthcoming from the

prosecution as to why PW-1 Sankataprasad's wife and the victim's

mother could not be examined.

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26. PW-5 Sumanlata's evidence shows that the victim was

very reluctant to go back to Mumbai to stay with the Appellant's

family in her matrimonial house. In fact, that may be the reason

for the commission of suicide by her. Though, the learned Judge

took recourse to rely on the presumption U/s.113A of the Indian

Evidence Act, the same presumption in this case stands rebutted

on the basis of the evidence led by the prosecution itself.

27. Considering the above discussion, it can be seen that the

prosecution has failed to prove its case beyond reasonable doubt.

The prosecution has not proved that the Appellant had acted in

any manner as to bring his act within the meaning of 'cruelty' as

defined U/s.498A of the I.P.C. There is no single specific instance

mentioned by any of the witnesses in connection with the

Appellant which would attract the offence U/s.498A of the I.P.C.

28. Similarly, there is no evidence on record to show that the

Appellant had acted in any manner which would amount to

'abetment' as defined U/s.107 of the I.P.C.. Consequently, even the

offence U/s.306 of the I.P.C. is not proved by the prosecution

23 of 23 902-apeal-737-1997 (J)

against the Appellant.

29. As a result of the above discussion, the benefit of doubt

will have to be given to the Appellant and the Appeal must

succeed.

30. Hence, the following order:

ORDER

i) The Appeal is allowed.

ii) The Judgment and order dated 17.11.2017 passed by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No.1216 of 1987, convicting and sentencing the Appellant, are set aside.