1 cria326-98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO.326 OF 1998 1] Pandurang S/o Tukaram Mukhmahale Age 27 years, Occ-Agril. 2] Namdeo s/o Tukaram Mukhmahale Age 32 years, Occ-Agril 3] Nirmala w/o Namdeorao Mukhmahale Age 27 years, Occ-Agril. All R/o Metha, Tq. Aundha Dist.Parbhani. .. APPELLANTS [ORIG.ACCUSED NOS.1 TO 3] Vs 1] The State of Maha. through complainant Kanha s/o Tukaram Kurwade Age 57 years, Occ-Agril R/o Tusegaon, Tq. Shengaon Dist.Parbhani. Copy to be served on P.P. High Court of Judicature of Bombay, Bench at Aurangabad. .. RESPONDENT [ORIGINAL COMPLAINANT] ... Shri A.A.Nimbalkar,Adv. h/f Shri V.D.Salunke,for appellants. Shri G.R.Ingole,APP for R-State. ... CORAM : T.V.NALAWADE,J. DATE : 04/07/2011 2 cria326-98 ORAL JUDGMENT: 1] This appeal is filed against the judgment and order of Sessions Case No.45/96 which was pending in the Court of Additional Sessions Judge, Hingoli. By decision dated 29/9/98, the Additional Sessions Judge has convicted and sentenced the appellants for offence punishable under Section 498-A r.w. 34 of I.P.C. They are sentenced to suffer R.I. and to pay fine. In short, the facts leading to the institution of the appeal can be stated as follows : 2] Deceased Dropadabai was a daughter of complainant. She was given in marriage to accused no.1 Pandurang about 2 and ½ years prior to the date of incident. It is the case of complainant that after 2 months of the marriage, Pandurang started saying that Dropadabai was black in complexion and she was not able to do household work and so, he had no intention to cohabit with her. Complainant has contended that the deceased used to disclose that husband was giving beating to her by saying so. Complainant has contended that the deceased used to make allegations against Namdeo-brother of husband and wife of Namdeo also that they were giving beating to her. 3 cria326-98 3] Two months prior to the incident, deceased was brought to appellants house for celebration of one festival and at that time, she had stayed there for 10 days. Accused Namdeo had visited the house of the complainant to take back Dropadabai and on that occasion, he had given promise that they would give good treatment to Dropadabai. The incident took place on 10/9/95. Dropadabai died in the field of the accused. Father has made allegations that all the 3 accused- husband, his brother and wife of brother are responsible for the death of his daughter and they had given ill treatment to her. Crime came to be registered at C.R.No.53/95 for aforesaid offence in Kalamnuri police station. Report came to be given on 11/9/95. Post mortem was conducted on the dead body after preparing inquest panchanama. Doctor gave opinion that it was probably case of poisoning but viscera was preserved for giving the final opinion. During course of investigation, statements of witnesses came to be recorded and charge sheet came to be filed in the Court of J.M.F.C. Kalamnuri. J.M.F.C. committed the case to the Court of Sessions. Charge was framed against all the accused for aforesaid offence. Prosecution examined in all 6 witnesses. The trial Court has acquitted all the appellants of the offence punishable under Section 306 r.w. 34 of I.P.C. by holding that there is possibility of accidental death. Appellants are convicted only for offence punishable u/s 498-A r.w. 34 of I.P.C. 4 cria326-98 4] In the appeal, both the sides are heard. As the trial Court has come to the conclusion that there is possibility of accidental death and suicidal death is not proved by the prosecution, it needs to be kept in mind that the alleged disclosure made by Dropadabai to the witnesses cannot be admitted in evidence U/s 32(1) of Indian Evidence Act. On this point, 2 reported cases can be referred : [1] 2002(2) SCC 619 [M.Gananath Pattnaik V/s State of Orissa] and [2] Inderpal V/s State of M.P. [2003 Supreme Court Cases (Cri) 1049]. 5] For proving offence punishable U/s 498-A (a) of I.P.C., prosecution was required to show that there is direct evidence after excluding the so called disclosure of the deceased. The provision reads as under : “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 purposes of this section, ‘cruelty’ means- (a) any wilful conduct which is 5 cria326-98 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;” 6] In the case reported as Girdhar Shankar Tawade V/s State of Maharashtra 2003 Bom.C.R.(Cri) 575 the Apex Court has observed as follows : “3] The basic purport of the statutory provision is to avoid “Cruelty” which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” as is expressed by the legislatures; whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed in equally heinous to match 6 cria326-98 the physical injury; whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of “cruelty” in terms of section 498-A.” 7] In the case reported as 1990 Cri. L.J. 407 [Smt.Sarla Prabhakar Waghmare V/s State of Maharashtra and others], this Court has observed that for proving offence U/s 498-A of I.P.C., prosecution must establish that beating and harassing was with a view to force the wife to commit suicide. In view of the provision, prosecution is required to prove that the conduct of the accused was “Wilful”. This position of law needs to be kept in mind while appreciating the evidence given by prosecution for proving offence U/s 498-A of I.P.C. 8] The main allegation against accused no.1 is that he did not like the deceased as she was black in complexion and she was not able to do household work. Allegations are made that husband and other 2 accused used to give beating to her. Report at Exh.27 which was given on the next date of the incident shows that the aforesaid disclosure against the accused was allegedly made by the deceased to her father. The report does not show that any accused had directly said so to the complainant or any accused had given beating or ill- 7 cria326-98 treatment of such kind to the deceased in the presence of the complainant. Though there is allegation in the report that accused Namdeo had promised to give good treatment to the deceased, from such allegation and evidence given by complainant accordingly in the Court, inference cannot be drawn that accused were saying so and there was discussion about such allegation made by deceased. It needs to be kept in mind that there was cohabitation of 2 to 3 years and probably it was arranged marriage. 9] The evidence of complainant [p.w.1] that accused Namdeo had come to his house for taking back Dropadabai to matrimonial house itself creates doubt about the allegation made that husband did not like Dropadabai. The evidence of complainant does not show that he had ever questioned the husband about so called disclosure made by deceased. Thus the evidence of Kanhu [p.w.1] shows that he has no personal knowledge regarding the ill treatment. Narayan [p.w.2] is a brother of deceased and his evidence is similar in nature. He has tried to say that deceased was brought for celebration of Akhad festival and at that time, Dropadabai was not ready to return to matrimonial house by saying that accused were giving beating to her. He has tried to say that Dropadabai had stayed in the house of appellants for about 2 months on that occasion. This is contrary to the version given by father of deceased that her stay was hardly for 10 to 12 days. The evidence of Narayan also shows that he has no personal knowledge regarding 8 cria326-98 ill treatment. 10] Dwarkabai [p.w.3] is maternal aunt of deceased. She has also deposed that the deceased used to make disclosure about the ill treatment to her. She has tried to say that deceased had met her 2 months prior to the date of incident when she had come to appellants house for Akhad festival. Her evidence in respect of visit of Namdeo to the house of deceased is similar in nature. Thus this witness has also no personal knowledge regarding the ill treatment. 11] Janardhan [p.w.4] is resident of Pusegaon but he has given evidence that for some time he had lived in Metha the village of the accused. His evidence is mostly on the so called disclosures made by deceased about the ill treatment. He has tried to say that he has personal knowledge about accused no.1 giving beating to Dropadabai as on 2 occasions he had seen such incident and that had taken place 6-7 days before death of Dropadabai. He has tried to say that he had informed about the incident to the parents of the deceased. No such evidence is given by complainant [p.w.1]. He is relative of the complainant. There is no record to show that he was living at any time in village Metha when his native place is different. He could not give the name of the neighbours of the accused in village Metha. He could not give name of police patil of village Metha, so also the name of Sarpanch of village Metha. These circumstances create doubt about 9 cria326-98 the entire evidence given by Janardhan [p.w.4]. 12] The aforesaid discussion shows that there was cohabitation of more than 2 and ½ years. Deceased had never stayed for long period in the house of her parents. There is only allegation that she had stayed for 10-12 days in the house of her parents 2 months prior to the date of incident. However, it is also case of the prosecution that accused Namdeo had come to [p.w.1] to take back the deceased to the matrimonial house. This circumstance creates doubt about the case of the prosecution that accused no.1 had no intention to cohabit with the deceased. Even if evidence is accepted as it is, it is not probable that the conduct of the accused was “wilful” as defined u/s 498-A of I.P.C. Trial Court has not considered aforesaid circumstance in proper perspective. The trial Court has held that the deceased was not ready to return to matrimonial house as probably there was ill treatment to her. It is not the case of prosecution that the deceased was driven out of matrimonial house and on the contrary it is the case of prosecution that she was brought to the house of appellants for celebration of festival. Thus, inference drawn by trial Court has no base. On the basis of aforesaid evidence, conviction is not possible U/s 498-A of I.P.C. Appeal deserves to be allowed. So the order. 13] Appeal is allowed. Judgment and order of Sessions Case No. 45/96 delivered by Additional Sessions Judge, Hingoli, on 29/9/1998, 10 cria326-98 is set aside. All the appellants are acquitted of the offence punishable under Section 498-A r.w. 34 of I.P.C. Fine if any, deposited by appellants, is to be returned to them. [T.V.NALAWADE,J.] umg/cria326-98