apeal499-95.sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 499 OF 1995 Prakash Trambak Wagh Zadi Shiwar, Taluka Malegaon Dist. Nashik. .. Appellants (Original Accused No.1) The State of Maharashtra .. Respondent Mr. Murtaza M. Najmi, amicus curiae for the appellant Mr. H.J. Dedhia, APP for the State CORAM : N . D. DESHPANDE, J. DATE : 23 rd March, 2011. ORAL JUDGEMENT 1. This appeal impugns the correctness of the judgment and order of conviction and sentence, dated 4th August, 1995 passed by the learned Additional Sessions Judge, Malegaon, Nasik in Sessions Case No.69 of 1990. 2. The Appellant was charged jointly with his mother Sarubai under sections 302, 498-A, 201 read with 34 of the Indian Penal Code. By the impugned judgment and order, the appellant/ accused alone has been held guilty only under Section 498-A of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay 1 apeal499-95.sxw fine of Rs.500/-, in default, to suffer I.R. for two months. However, the appellant- accused came to be acquitted of other charges under Section 302 and 201 read with 34 of I.P.C., in a joint trial held against him and his mother-original accused no.2. 3. The prosecution did not challenge the said findings of acquittal under Section 302 and 201 read with 34 of I.P.C recorded in favour accused No.1 so also the acquittal of his his mother accused no.2, Sarubai of all the charges. Therefore, the challenge in the present appeal and hearing is limited to an order of conviction and sentence under section 498-A of IPC recorded against accused No.1 who is husband of the deceased wife namely Chandrakala who was reported missing from the house and her body was found floating in the well water after two days on 23.7.1990. 4. Heard submissions of both the side. 5. At the threshold, the learned counsel for the appellant drew my attention to the findings recorded by the learned trial Court in favour of the original accused no.2-mother of the appellant who was acquitted, when both were tried jointly on the same charge vide Exh. 23 and on the basis of evidence and material on record proved during trial for their alleged common intention under Section 34 IPC. As such, the appellant therefore urged for equal treatment which was denied to him. It has been pointed out that the same evidence was appreciated but differently, without valid reason. 2 apeal499-95.sxw 6. Relevant facts briefly stated are thus: Undisputedly, the deceased Chandrakala was legally wedded wife of the appellant/accused No.1 and after their marriage, since 1987 they started residing in a village Zadi-Shiwar, Dist. Nashik, not far from village Kasarkheda where her parents used to reside. For a period of one year of their marriage, it is stated that her parents had no complaint against the in-laws subsequently they started ill treating the deceased. Two days prior to her death, Chandrakala was reported missing form the house and therefore, her husband informed to Sarpanch of the village. When the villagers started taking search, her dead body was found floating in the well water, in a nearby village Zadi-Shiwar. Information reached to the Taluka Police Station, Malegaon. P.I. Mr. Anniddin Shamshaddin Shaikh( PW-7) from the concerned Police station and PSI Mr. Kulkarni visited the spot. With the help of villagers, body was taken out of the well Police made inquest panchanama Exh. 40. It was sent for postmortem for further investigation. Postmortem was conducted by Dr. Mohammad Mohd. Yakub Ansari (PW-2) on 23.7.1990. Postmortem report is at Exh. 49 stating cause of her death as “ asphyxia due to throttling”. 7. Initially, on the report of Police Patil, Zadi it was registered as A.D. bearing No. 24 of 1990 (Exh.56) and on a complaint of Vitthal Tukaram Ghegade (PW-1) who is brother of the deceased criminal case came to be registered. During investigation, PI Shaikh(W-7) recorded statement of villagers and filed charge sheet against the appellant and his mother Sarubai under sections 302, 498-A, 201 read with 34 of the Indian Penal Code and both were committed to the Court of Sessions 3 apeal499-95.sxw for their joint trial. 8. With the assistance of Learned counsel I have carefully gone through the relevant evidence of the witnesses and the impugned judgment. Admittedly, there is no direct evidence to prove the charge of murder so also for the alleged harassment and ill treatment to deceased. Mostly, on such ground, the learned trial Court had given benefit to both and they were acquitted of the charges under sections 302 , 201 r/w 34 of IPC of murder. The original accused no.2 was held not guilty and was acquitted under Section 498-A because the evidence of cruelty or harassment was found inadequate. 9. In the light of the above stated facts and circumstances from record, I have further examined the impugned findings and the relevant discussion. No doubt, reappraisal or re-appreciation of evidence is permissible in appeal, especially when it is based on indirect evidence and circumstantial evidence. The learned Trial Court placed reliance on the testimony testimony of Vitthal (PW-1) brother of deceased so also Tukaram (PW-1) father of the deceased on the point of alleged cruelty to which the deceased was subjected after one year of her marriage and in the light of unnatural death in suspicious circumstances within a period of three years of her marriage. From record it is seen that for such death of Chandrakala, it is categorically held that accused No.2 including appellant-accused no.1 was not at all responsible. Therefore, in order to constitute offence under Section 498A, it is necessary to see its ingredients and whether they are attracted to the present case. Section 498-A reads thus: 4 apeal499-95.sxw 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 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. Admittedly is not a case of any demand of any money or property or valuable security. Therefore, the prosecution has simply relied on the ingredients of cruelty. Cruelty, which is punishable under Section 498-A of IPC, is a 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. On the point of physical cruelty, witness Namely PW-1 Vitthal and PW-3 Tukaram stated that the appellant used to beat deceased Chandrakala. However, on the point of beating there is no direct evidence brought on record. It is for the first time come on record only after the death of Chandrakala when her brother lodged a complain. None of the witnesses including brother is said to have witnessed any injury sustained by her when she had allegedly complained them of beating. So far mental cruelty is concerned, witnesses namely PW-1 Vitthal, PW-3 Tukaram PW-4 Jaychand Kasliwal, who are close relatives of the deceased, have 5 apeal499-95.sxw deposed that the appellant and his mother hated the deceased because she was black colour. The deceased was abused, in the words of PW-1 Vithal that ” the accused used to harass my sister saying that you are black in colour, Nakati and Kapal-Karanti. Whenever she used to come to our residential house, she used to tell about harassment”. Such complaint is also for the first time found in the report lodged after death of Chandrakala. Thus, these witnesses did not say that the appellant or his relative uttered such words to her in their presence. 11. Offence of cruelty physical or mental can be presumed if some untoward incident happened to the woman within a period of seven years of the marriage. However, in the present case, the cruelty as is defined defined under section 498-A is not established on record beyond reasonable doubt. The witnesses are the near/close relatives of the deceased who had lost their dear one, might have doubted the accused person responsible for her death and reported the matter to the police about the conduct and behaviour of the husband and members of the family. However these accusations need to be proved to constitute a willful conduct of such a nature which would likely to drive a woman to commit suicide or to cause grave injury or damages to her health. There is no nexus brought on record to show that because of such utterance or abuses to the deceased she was found dead, either by committing suicide or alleged homicide for which the appellant was indicated in the charge. Thus there is no sufficient, reliable evidence even for holding the appellant guilty for sole charge under Section 498-A. Therefore in the said circumstances and facts, both of the accused have been acquitted 6 apeal499-95.sxw of the charges u/s 302 and 201- IPC and therefore the findings recorded by the learned trial Court holding the appellant guilty under Section 498-A IPC cannot sustain in law. To sum up, there is no evidence of cruelty and harassment established against the appellant accused and the appeal therefore, deserves to be allowed for the reasons stated herein above. Hence, I proceed to pass the following order: O R D E R i. Criminal Appeal No. 499 of 1995 is allowed. ii. The impugned judgment and order of conviction and sentence is quashed and set aside and the Appellant is acquitted of the offence under section 498-A of I.P.C. iii. Bail bond of Appellant-Prakash Trambak Wagh who is on bail shall be cancelled. iv. Fees to the learned Advocate Mr. Murtaza M. Najmi appointed for the appellant shall be paid as per rules. ( N. D. DESHPANDE, J. ) 7