1 cria233.97 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 233 OF 1997 1. Shivaji Bajirao Rokade, Aged : 30 years, Occ : Agri., R/o Narlad, Tq. Sailu, Dist. Parbhani. 2. Bajirao Tukaram Rokade, Aged : 62 years, Occ : and R/o as above. 3. Anusayabai W/o Bajirao Rokade, Aged : 60 years, Occ : and R/o as above. APPELLANTS -VERSUS- The State of Maharashtra RESPONDENT Mr. Swapnil S. Rathi, Advocate for appellants. Mr. S.G. Kendre, A.P.P. for respondent. CORAM : A.V. NIRGUDE, J. Date : 20th December, 2010 ORAL JUDGMENT : 1. This appeal is filed against the judgment and order passed by the learned Additional Sessions Judge, Parbhani, dated 28.07.1997, convicting the appellant and other two accused for the offence punishable under Sections 498-A, 306 r/w Section 34 of the Indian Penal Code, and sentencing the appellant to suffer rigorous imprisonment for two years and to pay fine of Rs. 50/- on each counts with a default clause. During the pendency of the appeal, other appellant nos.2 and 3 died. The appellant no.1’s appeal remained pending for disposal. 2. It is the prosecution case that the appellant and his 2 cria233.97 parents treated the appellant’s wife with cruelty during three years tenure of her marriage with the appellant and thereby abetted commission of her suicide. 3. The prosecution case depended on the depositions of 8 prosecution witnesses, out of which, the depositions of the prosecution witness nos.2 and 4 are important. It is common ground that the appellant got married to deceased Kalawatibai three years prior to her death, which occurred due to suicide on 30th September, 1993. It is also common ground that deceased Kalawatibai consumed poisonous substance while she was staying with the appellant. The prosecution witness no.2-Balbhau, the father of Kalawatibai is the complainant and has deposed that after marriage, Kalawatibai went to stay with the appellant. He said, Kalawatibai delivered a male child after one and half years of the marriage. He said, when Kalawatibai for the first time returned to his house after one and half month from her marriage, she told him that her parents in laws had ill-treated her and had beaten up her. She also stated to him that even her husband ill-treated her and used to beat up her. This witness then stated that Kalawatibai visited his house for celebration of Nagpanchami festival soon after her wedding and at that time, Kalawatibai told him that for “domestic reasons” her parents in laws had ill-treated her. He said, after Nagpanchami festival was over, the appellant came to his house to take her back but he said, he refused to send her back to the appellant's house because there was ill-treatment to his daughter. He said, thereafter his daughter stayed with him till Mahalaxmi festival. He said, at around that time, the appellant came to him to take his wife back and he said, this time he sent Kalawatibai back with the appellant. He then said, after 15 days thereafter he received a message that his daughter Kalawatibai 3 cria233.97 had committed suicide. He said, he went and saw her dead body. He said, at that time, Kalawatibai was pregnant for five months. 4. The prosecution witness no.4 similarly stated that her daughter Kalawatibai used to come to her house on occasions of festivals. She said, she used to tell her that the appellant and her parents in laws used to beat her. She said, on last occasion, Kalawatibai had come to her house at the time of Nagpanchami and even this time, she said, her daughter told her that the appellant and his parents were beating her. She said, after Nagpanchmi festival Kalawatibai was sent back to her matrimonial house. But she added that Kalawatibai came back to her house because this time Kalawatibai was sent back by the appellants. She said, even at that time Kalawatibai told her that the appellant and his parents had beaten up. She said, for a period of one month Kalawatibai stayed with her. She said, at the time of Mahalaxmi festival, Kalawatibai was sent back. Soon thereafter Kalawatibai committed suicide. 5. The learned Advocate appearing for the appellant contended that the evidence of these witnesses even without reading cross examination, is not sufficient to hold that Kalawatibai was treated with cruelty either by the appellant or his parents (deceased appellants). Indeed, both these parents of deceased Kalawatibai have failed to give details as to what they learnt from Kalawatibai in respect of ill-treatment which she had allegedly received at the hands of the appellant and his parents. All that they stated was in one line and that was Kalawatibai told them that she was beaten up by the appellant and his parents for domestic reasons. 6. It is common ground that Kalawatibai stayed in her matrimonial house for three years. During this time, she had 4 cria233.97 delivered a male child. During these three years, she had ample occasions to meet her parents and to talk to them. Had there been serious ill-treatment at the hands of the appellant and his parents, Kalawatibai would have certainly stated about it, its reasons and its details with specific roles attributable to the appellant and his parents. But the witnesses made omnibus one line statement in respect of alleged ill-treatment and beating. 7. From the depositions and from the date of death of Kalawatibai, it is clear that a few days prior to her death, she had been to the house of these witnesses. At that time, she had made complaint to them about the ill-treatment. This time, she stayed with them for almost a month and if the complainant is to be believed, he refused to send Kalawatibai back with the appellant because she was subjected to cruelty. I think this was the most crucial period for these witnesses who had opportunity to know from the Kalawatibai as to what had happened with her at her matrimonial house. At that time, Kalawatibai was even pregnant for the second time. Obviously, the parents of a pregnant daughter would be more careful about her health as well as her well being. But these two witnesses made no disclosure as to what Kalawatibai told them. As indicated above, had she made serious complaint about the cruelty etc., she would have given details of conduct giving particulars of roles attributable to the appellant and his parents. 8. The learned Judge of the trial Court ignored this lapse in the prosecution case. He had recorded the depositions of the witnesses. It seems neither the Public Prosecutor nor he made any serious attempt to elicit details of the ill-treatment and cruelty from these two witnesses. The learned Judge, it seems, did not mind the terseness of the depositions of these two witnesses. He simply 5 cria233.97 said in the judgment that these witnesses are consistent to each other and so the cruelty is proved against the accused. I think this was rather a naive way to appreciate the evidence. 9. In order to understand as to how evidence is required to be appreciated one must read the the provisions of S.489A of the IPC. It reads as under: 498A. 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 purposes of this section, “cruelty” means (a) Any willful 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. 10. Analysis of the section shows that this law deals with four types of cruelty: Any conduct that is likely to drive a woman to suicide, Any conduct which is likely to cause grave injury to the life, limb or health of the woman, Harassment with the purpose of forcing the woman or her relatives to give some property, or Harassment because the woman or her relatives are either unable to yield to the demand for more money or do not give some share of the property. 6 cria233.97 In this case, the second part of the definition is not attracted because the prosecution witnesses did not say that the appellant and his parents harassed the victim for coercing her or the complainant for meeting their demands etc. In fact, the evidence does not indicate that the appellant or his parents made any demands. So we are left with first part of the explanation. 11. The first part of the explanation invariably requires the prosecution to prove that the in-laws or the husband of the married woman had willfully done such act/s that it/they would drive the married woman to commit suicide etc. In other words, the prosecution is expected to prove that the accused treated the victim so severally that it would drive her to commit suicide etc. A higher degree of cruelty thus is expected to be proved. When the prosecution tries to prove the factum of cruelty as expected, it is necessary that they should give details of the cruel conduct of the accused. In other words they should lead sufficient evidence which would convince the Court that willful conduct of the husband and/or in laws of the married woman was so severe that it was enough to drive the married woman to commit suicide. The evidence so brought on record would be subjected to scrutiny of the Court and the Court would then try to appreciate it and to decide as to whether the conduct so proved was sufficient for the married woman to commit suicide etc. The degree of severity varies from case to case. If they fail to give details of the conduct the court would not be able to appreciate its severity. In such as case they would fail to bring the case within the parameters of the term cruelty. 12. In this case the prosecution similarly failed to prove their case of cruelty against the appellant and his parents. Since they failed to prove the offence under Section 498-A against the 7 cria233.97 appellant, there is no possibility of appellant getting convicted under Section 306 IPC. Therefore the appeal succeeds. The appeal is allowed. The appellant stands acquitted. His bail bonds are discharged. (A.V. NIRGUDE) JUDGE gas/cria233.97/ok