Bombay High Court
Shri Kasam Fakir Mohammed Malim, vs The State Of Maharashtra . on 17 November, 2025
2025:BHC-AS:49701
Shubhada S Kadam 1-Apeal-532-1999 (Final).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 532 of 1999
1 Kasam Fakir Mohammed Malim, ...Appellant
Age : 53 years. (Orig.
R/o. Shailesh Nagar, Building No.3, Accused)
First Floor, Room No.102,
Mumbra, Tal. & District - Thane.
Versus
The State of Maharashtra ... Respondent
(At the instance of Mumbra Police Station,
Thane.)
Mr. Niranjan Mundargi along with Ms. Keral Mehta, Advocate for the
Appellant.
Mr. C. D. Mali, APP for Respondent-State.
CORAM : R. M. JOSHI, J.
DATED : 17th NOVEMBER, 2025.
Oral Judgment :
1. The appellant takes exception to the judgment and order dated
16th September 1999 passed in Sessions Case No.359 of 1995 whereby
he came to be convicted for the offence punishable under Section 498-A
of the Indian Penal Code 1860 (for short "IPC") and sentenced to suffer
Digitally rigorous imprisonment for a period of one year with fine of Rs. 500/-. By
signed by
SHUBHADA
SHUBHADA SHANKAR
SHANKAR KADAM the said judgment, however, the appellant came to be acquitted of offence
KADAM Date:
2025.11.19
15:01:15
+0530 punishable under Section 313 of the IPC.
1/8
::: Uploaded on - 19/11/2025 ::: Downloaded on - 19/11/2025 20:37:57 :::
Shubhada S Kadam 1-Apeal-532-1999 (Final).doc
2. The facts which led to the filing of this appeal are narrated in
brief as under:
It was the case of the prosecution before the Trial Court that
the accused was already married and had four children from his first wife.
After death of his first wife, he entered into the wedlock with informant -
Jainabi, who was a divorce. The said marriage was performed on
9th February 1994 and thereafter, their cohabitation started at Mumbra,
Thane. Jainabi became pregnant after about six months, and after getting
the knowledge about the same by accused, he started insisting her for
termination of the pregnancy. According to the accused, he had already
four children and was not intending to add one more child to the family.
The informant claims that she was insisted to terminate the pregnancy
and on that count, she was abused and beaten by him.
3. It is further case of the informant that on 1st March 1995,
accused took her to the hospital of Dr. Girija Sudarshan (PW2). It is her
claim that under the guise of examination, the accused took her there and
without paying heed to the objection, the pregnancy came to be
terminated. She further claims that the accused threatened her to
implicate her in false case, and therefore, she lodged report with the
police. An offence came to be registered vide Crime No.I-58 of 1995 with
Mumbra Police Station for offences punishable under Sections 498-A and
313 of the IPC. The investigation into the said crime was conducted by
PSI-Chavan. He arrested the accused on 7th March 1995. Statements of
2/8
::: Uploaded on - 19/11/2025 ::: Downloaded on - 19/11/2025 20:37:57 :::
Shubhada S Kadam 1-Apeal-532-1999 (Final).doc
witnesses were recorded. The documents were also collected during the
course of investigation and on completion of investigation, charge-sheet
came to be filed before the competent court.
4. Charge was framed at Exhibit -3. Accused denied the charge.
Prosecution examined five witnesses to prove the guilt of the accused.
The Trial Court found that the offence punishable under Section 313 of
the IPC has not been established and, hence, acquitted the accused,
however, convicted the accused for the offence punishable under Section
498-A of the IPC.
5. Learned counsel for the appellant submits that since in respect
of the offence punishable under Section 313 of the IPC, appellant is
acquitted, this indicates that the offence of causing miscarriage without
woman's consent has not been proved before the Trial Court. It is his
submission that if there was a consent of informant for the miscarriage,
the question would arise as to whether this could be treated as an act on
the part of the accused of wilful conduct which is likely to drive informant
to commit suicide or to cause grave injury or danger to her life or limb. He
drew attention of the Court to the evidence of informant who, except for
stating vaguely that the accused was beating her for termination of
pregnancy, there is no evidence to substantiate the charge. It is a
submission that there are material inconsistencies in the testimony of the
informant and her brother (PW3) and her brother-in-law (PW4).
3/8
::: Uploaded on - 19/11/2025 ::: Downloaded on - 19/11/2025 20:37:57 :::
Shubhada S Kadam 1-Apeal-532-1999 (Final).doc
6. It is argued that when the informant has not been able to state
about the harassment caused to her which may lead her to commit
suicide or create danger to her life or limb, the question of offence
punishable under Section 498-A and proof thereof does not arise. He
drew attention of the Court to the testimony of Dr. Girija Sudarshan
(PW2), who according to him has candidly stated about the termination of
pregnancy being done with the consent of the informant as well as
appellant/accused. It is his submission that this witness has not been
disowned by the prosecution, and as such, her evidence deserves to be
considered. It is his submission that once the compulsion or force for
termination of the pregnancy is ruled out, there remains no question of
sustaining the judgment of conviction recorded against the appellant for
the office punishable under section 498-A.
7. Learned APP tried to support the impugned judgment of
conviction recorded against the appellant. He essentially drew attention of
the Court to the evidence of PW3 and PW4 in order to argue that there
were instances of the harassment being caused by the appellant against
the informant. It is also argued that accused used to give contraceptives
to informant Jainabi and used to beat her, when she did not take the
same. It is submitted that since it is the case of the informant that her
pregnancy is terminated forcibly, the Court must hold that the consent
recorded before the doctor was not voluntary. In this regard, reference is
made to the evidence of PW3, indicating that at the first instance when the
4/8
::: Uploaded on - 19/11/2025 ::: Downloaded on - 19/11/2025 20:37:57 :::
Shubhada S Kadam 1-Apeal-532-1999 (Final).doc
accused and informant went to another Doctor, there was no decision of
termination of pregnancy and, in fact, in the presence of independent
witnesses, the pregnancy was agreed to be continued. On these amongst
other submissions, he seeks sustainment of the conviction.
8. At the outset, it needs to be considered as to the ingredients
which are required to be satisfied to prove for offence punishable under
Section 498-A of IPC. It would be relevant to take note of the said
provision, which reads thus, Section 498-A:
498-A. Husband or relative of husband of a woman subjecting her
to cruelty.-- Whoever, being the husband or the relative of the husband
of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also
be liable to fine.
Explanation. -- For the purpose of this section, "cruelty" means -
(a) any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb
or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by her or
any person related to her to meet such demand.]
9. Perusal of the FIR does not indicate that there was any
harassment caused to the informant on the account of meeting any
unlawful demand for any property or valuable security and as such clause
(b) of Section 498-A has no application to the present case. The
5/8
::: Uploaded on - 19/11/2025 ::: Downloaded on - 19/11/2025 20:37:57 :::
Shubhada S Kadam 1-Apeal-532-1999 (Final).doc
prosecution therefore, was required to prove the wilful conduct on the part
of the accused, which is of such a nature as it is likely to drive the woman
to commit suicide or cause grave injury or danger to life, limb or health of
the woman.
10. Now it needs to be seen as to whether the evidence on
record proves the guilt of the accused for offence punishable under
Section 498-A. Needless to say that the burden shall entirely and at all
times remain upon the prosecution to prove the guilt of the accused
beyond the shadow of reasonable doubt. It is not permissible for the Court
to draw presumptions sans evidence.
11. The evidence of informant indicates that she was assaulted by
the appellant/accused and in one such incident, the son of the accused
intervened. As far as the said allegation is concerned, pertinently no other
charge has been framed against the appellant and except for the charge
for the offence punishable under Section 498-A of the IPC. As observed
above, in order to prove the said offence, there must be proof of wilful
conduct of the accused, which is of the nature which would likely to drive
the woman to commit suicide or cause grave injury or danger to her life or
limb. Here in this case, there is no such evidence forthcoming in this
regard.
13. Though brother (PW-3) of the first informant deposed about
accused beating her for not taking the contraceptives, the informant
herself never claims so in the substantial evidence recorded before the
6/8
::: Uploaded on - 19/11/2025 ::: Downloaded on - 19/11/2025 20:37:57 :::
Shubhada S Kadam 1-Apeal-532-1999 (Final).doc
Trial Court. It has come on record that the FIR came to be lodged by the
informant at the instance of PW3 and PW4. Since their evidence does not
get support from the testimony of the informant herself, this Court finds no
reason to accept the same for recording the conviction against the
applicant accused.
14. On the other hand, there is evidence of independent witness,
Dr. Girija (PW2), who has stated about the informant and accused coming
to her for termination of pregnancy and the pregnancy being terminated
by their consent. Though it is sought to be argued on behalf of learned
prosecutor that the said consent cannot be treated as voluntary, however,
there is absolutely no evidence on record to indicate so. If it was the case
of the informant that the consent was not voluntary, she was required to
state so before the Court, which she never claimed. It would be relevant
to note that the informant refused to undergo family planning operation
and this shows that, in case, she was not agreeable for termination of
pregnancy, she could have denied to do it. Moreover, the Trial Court has
also held that the termination of pregnancy has been done by consent of
the informant, and therefore the accused was acquitted for the offence
punishable under Section 313 of the IPC.
15. In the light of these facts, the evidence on record does not
prove the guilt of the accused for the offence punishable under Section
498-A of the IPC. Consequently, the appeal deserves to be allowed.
7/8
::: Uploaded on - 19/11/2025 ::: Downloaded on - 19/11/2025 20:37:57 :::
Shubhada S Kadam 1-Apeal-532-1999 (Final).doc
16. Hence, the following order :
ORDER
1. The appeal is allowed.
2. The judgment and order dated 16th September 1999 passed
in Sessions Case No.359 of 1995 by the Special
Judge(Atrocities of Women) and III Additional Sessions
Judge, Thane, is quashed and set-aside.
3. The appellant stands acquitted of all the charges.
4. The bail bonds of the appellant stands cancelled.
5. Fine, if any paid, be refunded to the appellant.
6. Record and proceedings be returned to the learned Trial
Court.
The appeal stands disposed of.
( R. M. JOSHI, J.)
