1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO.83 OF 1998 Nilkanth s/o Ambaji Londhe age 31 years, occup. Labour, r/of Sastur, Taluka Omerga, Appellant/ori. District Latur. accused No.1. versus The State of Maharashtra Respondent ----- Shri M.P. Tripathi, Advocate, for the appellant. Smt. B.R. Khekale, A.P.P. for Respondent-State. Coram : P.R.Borkar,J. Date : 11/01/2010. ORAL JUDGMENT 01. This is an appeal preferred by original accused No.1 being aggrieved by the judgment and order passed on 16.1.1998 by the learned Additional Sessions Judge, Osmanabad, in Sessions Case No.66 of 1996, whereby appellant was convicted of the offence punishable under Section 498-A of Indian Penal Code and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/-, in default he was to suffer rigorous imprisonment for one month. However, appellant was acquitted of the offences 2 punishable under Sections 304-B and 306 read with Section 34 of I.P.C.. As far as accused No.2 Laxmibai (mother of the appellant) is concerned, she is acquitted of all the three offences charged. 02. Briefly stated, PW-1 Milind who is the brother of deceased Lalita who was wife of present appellant, filed complaint Exhibit 21 on 2.2.1996 with Police Station, Lohara, alleging that both appellant and Lalita before their marriage, were married earlier and each had one son from their earlier marriages. Lalita, after death of her first husband, was working in a school and 9 to 10 months before the complaint filed on 2.2.1996, marriage of Lalita with present appellant had taken place. After marriage, appellant and Lalita and original accused No.2 Laxmibai were residing jointly at Sastur. Lalita visited her parental house one month after the marriage. 03. About four months after the marriage, one Mr. Pawar then working in the hospital at Sastur gave message to PW-2 Padmini (mother of Lalita),that Lalita had an abortion and was ill and, therefore, she had immediately called PW-2 Padmini to Sastur. Thereafter PW-2 Padmini went to Sastur and lived there with 3 Lalita for about 5-6 days. Lalita was medically treated. Thereafter PW-2 Padmini came back to Kalamb and told PW-1 Milind that she had called appellant and Lalita to Kalamb. One month thereafter Lalita alone came to Kalamb. She was ill. She said that the appellant was saying that he had one son and he had one son and she should take pills for abortion and if she refused, he would beat her with kicks and fist blows and abort her. Lalita further said that the appellant lifted her and threw down and gave kicks on her abdomen, because of which she was ill. Thereafter PW-2 Padmini took Lalita to hospital at Beed where she was treated. So, case made out in the complaint proved by PW-1 Milind at Exhibit 21 is that there was already abortion because of beating by appellant to Lalita and she required medical treatment which was given in the hospital at Beed. It is further stated that Lalita complained that she was ill-treated by original accused No.2 Laxmibai, by alleging that in the first visit to in-laws, the appellant was not given necessary customary gifts. It is stated that thereafter Lalita was brought to Kalamb. Appellant came to Kalamb quarreled with PW-2 Padmini and took away Lalita to Sastur. 4 04. It is also stated in the complaint that at about 5 .00 p.m.on 1.2.1996 i.e. on earlier day of lodging the complainant, message was received by PW-1 Milind from Police Station, Kalamb that Lalita had died and, therefore, PW-1 Milind, his mother PW-2 Padmini and friend Datta Shendge went to Sastur and on enquiry, learnt that Lalita died of burn injuries. Complaint was made that both, appellant and his mother original accused No.2 Laxmibai, had killed Lalita and accordingly offences under Sections 498-A, 304-B and 306 all read with Section 34 of I.P.C. were registered. 05. After completion of investigation, police sent charge-sheet to the court. In all, six witnesses were examined by the prosecution. As stated earlier, on considering the evidence before it, the learned trial court convicted the appellant of offence punishable under Section 498-A of IPC and acquitted him of other two offences. Original accused No.2, who is mother of appellant, was acquitted of all the offences charged. 06. In this case, main evidence regarding ill- treatment to Lalita is that of PW-1 Milind, PW-2 5 Padmini and PW-3 Datta. PW-3 Datta is the neighbour of PW-1 Milind. PW-1 Milind in his statement on oath at Exhibit 20 has deposed that about 3 to 4 months after marriage of Lalita with appellant, one Mr. Pawar had given message that Lalita was sick at her in-laws' house at Sastur and, therefore, PW-2 Padmini went to Sastur. She stayed there for about 5-6 days and arranged for medical treatment to Lalita and requested the appellant to send Lalita with her to Kalamb. The appellant told that he would come to Kalamb with Lalita subsequently. Thereafter Lalita alone came to Kalamb. She was weak and pregnant. This falsifies statement in complaint Exhibit 21 reproduced earlier that Lalita had under gone abortion before message was received. In fact, message as per the complaint was that Lalita had undergone abortion and was ill. It has further come in the evidence of PW-1 Milind that the appellant was insisting Lalita for medical termination of pregnancy saying that both had sons and therefore there was no requirement of any more issue. However to this Lalita was not ready and so the appellant beat her. It is further stated that thereafter Lalita was taken to hospital at Kalamb, but on medical advice, she was taken to Beed for treatment where she was attended to by PW-2 mother Padmini. 6 Thereafter, appellant came to Kalamb and took away Lalita. PW-1 Milind also stated that Lalita complained that both accused were making illegal demands and ill- treating Lalita. However, it is argued that this is improvement. It is not stated what demands were made. It is stated in the complaint that for not giving customary gifts, original accused No. 2 was unhappy. But, that was when the appellant first visited Kalamb to the house of PW-1 Milind. 07. PW-2 Padmini, mother of Lalita stated that Lalita was pregnant and appellant was asking her to take medicine for terminating pregnancy and on refusal by Lalita, appellant had beaten her with kick blows. One Mr Pawar had told PW-1 Milind and Padmini that Lalita was ill and they should come to see her at Sastur. So she went to Sastur, stayed there for 5-6 days and treated Lalita. PW-2 Padmini insisted on Lalita to come to Kalamb, but the appellant told that he and Lalita would come to Kalamb subsequently. One month thereafter, Lalita came and she was taken to hospital at Kalamb when doctor advised that Lalita was pregnant and expert treatment was required. So, Lalita was taken to the hospital at Beed and was treated for 7-9 days. At that time there was abortion. 7 08. It is argued on behalf of the Respondent that if really there was any beating, particularly kicks on the abdomen of Lalita, abortion would have been immediate and it would not have been more than one month after alleged beating to Lalita. If we see the complaint as it is, the same is to the effect that already there was abortion because of which Lalita was ill and, therefore, she was first taken to Kalamb and on medical advice she was taken to Beed where she was treated. But, evidence of PW-2 Padmini shows that Lalita was pregnant when she was taken to Kalamb. So, the question arises whether there was medical termination of pregnancy or it was natural abortion due to ill-treatment. In such circumstances, evidence of the doctor who treated Lalita at Beed, would have been helpful and in absence of the same and in view of the nature of the evidence before us, question arises whether there is any truth in the prosecution case that Lalita was ill-treated and the appellant had given kick blows on her abdomen and therefore she had aborted. Advocate Shri Tripathi, Advocate Shri Tripathi has rightly argued that in case it was a medical abortion, the doctor would have taken written consent of the patient. In this case, admittedly no one from the side of appellant was 8 present at Beed and there is no reason to hold that the doctors from hospital at Beed did not follow the procedure laid down by law for taking consent of the women for before termination of her pregnancy. Even if it was a natural abortion, the prosecution could have led evidence regarding the same and could have examined the doctor to show under what circumstances abortion had taken place. 09. In cross examination of PW-2 Padmini, omissions were brought on record that she did not state before police that Lalita was pregnant; that the doctor had advised for medical treatment to her by expert. It is also brought on record that she did not state before the police that there was abortion of Lalita in the hospital. 10. PW-3 Datta Shendge is the neighbour of PW-1. He deposed that when Lalita had come to Kalamb, she had told him that her husband had subjected her to cruelty on account of refusal by her to termination of pregnancy. Datta Shendge is a boy aged 25 years and question arises whether he would be told such thing by Lalita, unless there are close or intimate relations between him and the family of PW-1 Milind. 9 11. In the above circumstances, the possibility of PW-1 Milind lodging complaint due to sudden death of Lalita canot be ruled out. There is no evidence in the nature of dying declaration or independent corroboration from any source. Therefore, in the facts and circumstances of the case, the appeal deserves to be allowed. 12. Consequently, appeal is allowed. The conviction and sentence recorded by the learned Additional Sessions Judge, Osmanabad vide his judgment and order passed on 16.1.1998 in Sessions Case No.66 of 1996, is hereby set aside. The appellant is acquitted of the offence punishable under Section 498- A of I.P.C. Bail bond executed by the appellant- accused stands cancelled. Fine amount, if deposited, be refunded. Record be sent to the trial court. pnd/criapl83.98 (P.R.BORKAR, J.)