1 Appeal 516-93 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.516 OF 1993 Arvind Maganlal Mestri .Appellant Age:About 40 years, Occu:service Residing at 4 Halima Villa, Vakola Masjid, Nehru Road, Santacruz (East), Bombay  400 055. V/s. The State of Maharashtra .Respondent Mr.R.R.Salvi, Advocate, for the Appellant Mr.J.P.Kharge, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 6TH SEPTEMBER, 2011 ORAL JUDGMENT . This Appeal is directed against conviction of the appellant for the offences punishable under Sections 306 and 498A of the Indian Penal Code and sentence of rigorous imprisonment for three years with a fine of Rs.1000/- or in default imprisonment for further term of three months imposed upon the appellant by the learned Additional Sessions 2 Appeal 516-93 Judge, Greater Bombay after conclusion of Sessions Case No.698 of 1990 before him. 2. Facts which are material for deciding this appeal are as under :- The victim was married to the appellant on 13th July, 1980. She had two sons of the marriage. She had also won a sum of Rs.2,00,000/- in the Lottery and had invested the amount by starting a shop called Navjeevan stores in front side of their residential house. There used to be bickerings on account of domestic expenses. The elder son of the appellant was kept in boarding school at Matheran in the same year in which the incident took place. It was alleged that on 29th September, 1987 the appellant beat up the victim on account of some domestic quarrel. The victim telephoned her parents, who reside in Mumbai itself. They and other relations rushed to the victim's house. They were trying to pacify the appellant and his wife. 3 Appeal 516-93 Victim suddenly went inside the house, shut the door behind her and set herself on fire. It is the prosecution case that the appellant reluctantly produced the key of the door to enable the persons, who gathered to rush to the rescue of the victim. The victim was taken to Cooper Hospital at Mumbai where she succumbed to her injuries on 30th September, 1987 at about 3:00 a.m. 3. On a report by victim's father, an offence was registered on 5th October, 1987. Before that on 30th September, 1987 itself the appellant had reported that his wife had committed suicide. In course of investigation, it transpired that the appellant had sought to engage the services of PW-1 Smt Leela Laxman Patel, a person who claims to be possessed some super natural powers to eliminate the victim because he was allegedly in love with some other girl. In course of investigation police collected 4 Appeal 516-93 necessary medical papers concerning death of the victim, performed panchanama of the spot, recorded statements of the witnesses and on completion of investigation sent the charge sheet to the Court of learned Metropolitan Magistrate, who committed the case to the Court of Sessions at Mumbai. The learned Additional Sessions Judge to whom the case was made over charged the appellant of the offences punishable under Sections 306 and 498A of the Indian Penal Code. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all nine witnesses in its attempt to bring home guilt of the appellant. After considering the prosecution evidence in the light of defence of denial, the learned Additional Sessions Judge convicted and sentenced the appellant as mentioned earlier. Aggrieved thereby, the appellant has preferred this Appeal. 4. I have heard the learned Counsel for 5 Appeal 516-93 the appellant and the learned Additional Public Prosecutor for the respondent  State. With the help of both the learned Counsel I have gone through the entire evidence on record. It was alleged by the first informant, father of the victim that the investigation conducted by PW-8 Marutrao Yashwant Takale, API, was biased. Further investigation was, therefore, carried out by PW-9 Vikram Zaga Marathe, ACP, who was superior of Takale. Apart from these two investigating officers, the prosecution examined PW-1 Smt. Leela Laxman Patel, who claims to be possessed some super human powers and who had been approached by the appellant for elimination of the victim. PW-2 Ramesh Mancharam Bhatt is victim's father, who had given the report and who was also present in front of the victim's house when the victim rushed inside and committed suicide. PW-3 Rohit Arvind Mestry is the elder son of the victim and appellant, aged 11 years, when he 6 Appeal 516-93 was examined before the Court. He was staying with his grand father that is PW-2 Ramesh Bhatt. He came with a very queer statement that the appellant told the deceased that he was not the appellant's son but son of the victim's father, which does not appear to be anybody else's story. He too was present when the incident took place. PW-4 Nitin Ramesh Bhat is victim's brother, who states about tape recording appellant's conversation with PW-1 Smt. Leela Patel. He was also present at the time of incident. PW-5 Dr. Dhirendra Dhansukhlal Prajapati is the brother-in-law of the victim, who claims that the victim made an oral dying declaration to him and also seeks to support the case of the first informant that the investigating officer had not made any effort to have any dying declaration recorded through any Special Executive Magistrate. PW-6 Dr. Arunkumar Brishbhanu Sahu was the casualty medical officer, who had admitted the victim and sought to prove what 7 Appeal 516-93 the victim stated at the time of admission. PW-7 Shridhar Sakharam Narvekar is Special Executive Magistrate, who proved dying declaration of the victim at Exhibit 52. As already indicated PW-8 and PW-9 are the investigating officers. 5. The learned trial Judge had refused to give any weight to the tape recorded conversation between the appellant and PW-1. But he accepted oral account of the talk given by PW-1 Leela. First, though, the first informant and others had come to know of the appellant's evil design through the conversation which was tape recorded, they do not seem to have approached the police promptly. Even after the offence was registered, the tape was not seized by the police and no transcript was got prepared promptly. The tape was produced from the custody of the prosecution witnesses. Ironically the investigating officer PW-9 8 Appeal 516-93 Vikram Marathe stated that he did not realize the importance of the tape and therefore, did not seize it. In view of this, the alleged conversation of appellant with PW-1 Smt. Leela Patel and the evidence of PW-1 has to be discarded, in addition to the tape recorded conversation which had been rightly discarded done by the learned trial Judge. 6. This takes me to the question as to what is the evidence to show that the appellant treated the victim with cruelty. Apart from the evidence of PW-2, PW-3 and PW-4 about bickerings in the family, there are three complaints of non-cognizable offence made by the victim during her life time to the police station concerned which are at Exhibits 58 to 60. One of the complaints does not refer to any beating, while two other complaints refer to beating by hand. The victim had stated that the causes of quarrels were about household expenses and ornaments. 9 Appeal 516-93 The learned APP sought to suggest that since the victim had won the Lottery, the appellant wanted the victim to give him her money. This does not seem to be the prosecution case put forth in the trial Court. None of the complaints at Exhibits 58 to 60 show that the appellant had indulged in any serious violence or caused any serious injuries to the victim. The learned Counsel for the appellant is right in submitting that for proving cruelty, the conduct concerned has to be as defined in explanation to Section 498A of the Indian Penal Code. The alleged conduct was obviously not for coercing the victim or any person related to her to meet any unlawful demand. Therefore, explanation (b) is not at all attracted. As far as explanation (a) is concerned, it was necessary for the prosecution to prove that the conduct was of such a nature as was likely to drive the victim to commit suicide or to cause grave injury or danger to her life, limb or health 10 Appeal 516-93 (whether mental or physical). Simple injury is not covered by the definition of cruelty. It has to be a grave injury or something which causes danger to life. Such is not the conduct attributed to the appellant in complaints at Exhibits 58 to 60, as also in the evidence of the three witnesses who have been examined. 7. As for the question as to whether the conduct was of such a nature as was likely to drive the victim to commit suicide, the prosecution should have shown that the conduct attributed to the appellant was of such a nature. The evidence of persons present when the victim committed suicide does not show that the appellant was alleged to have committed any such conduct. There is an allegation that the appellant had tried to strangulate his wife. There is nothing on record to show that the medical officer had noticed any injury which could be indicative 11 Appeal 516-93 of any such strangulation. 8. The victim's dying declarations recorded by PW-7 Shridhar Narvekar categorically show that the victim went inside the house and set herself on fire because she found that her parents were also taking side of her husband, rather than supporting her in her quarrel with the appellant. The prosecution tried to show that no such statement was recorded. As rightly pointed out by the learned Counsel for the appellant, in the evidence of PW-4 Nitin Bhat he was confronted with his statement before the investigating officer. PW-9 Vikram Marathe, ACP where he had allegedly stated that his father had remarked to the victim that both the victim and her husband were alike, whereupon the victim said that her father gets angry at her only and then she went inside the house and bolted the door. The contradiction was duly proved by PW-9 Marathe, ACP. 12 Appeal 516-93 Therefore, it is not that the story of the victim committing suicide because her father did not support her is surfacing only in the cross examination. It was a very much part of the prosecution case. The victim had stated so before PW-7, the Special Executive Magistrate and there is no reason to disbelieve the word of PW-7 Narvekar. 9. In any case, even if it is presumed that her parents did not take side of her husband and supported her, the victim does not seem to have decided to go to police against her husband. It has to be noted that PW-2 had asked the victim to go to the police station and give a report. He also stated that his driver in fact had taken the victim in car, but instead of going to police station and giving report, she came back. This would not be consistent with the victim being provoked to commit suicide by any conduct on the part of the appellant. 13 Appeal 516-93 10. After the victim came back without going to the police station, there was allegedly some talk between the victim and appellant which was not heard by the family members and therefore, it cannot be said for sure that the incident which triggered the commission of suicide by the victim was any act on the part of the appellant. It is not that victim was alone with the appellant when she took precipitate step. She was with her father and brother. Provocation, if any, before parents arrived must have subsided, by their arrival. Therefore, the learned Judge should have seen that the prosecution failed to prove any abetment to commit suicide on the part of the appellant. In view of this, conviction of the appellant for the offences punishable under Sections 306 and 498A of the Indian Penal Code and sentence of rigorous imprisonment for three years with a fine of Rs.1000/- or in default the further imprisonment for further term of three months 14 Appeal 516-93 imposed upon the appellant by the learned Additional Sessions Judge cannot be sustained. 11. The Appeal is, therefore, allowed. Conviction for the offences punishable under Sections 306 and 498A of the Indian Penal Code and sentence of rigorous imprisonment for three years with a fine of Rs.1000/- or in default the further imprisonment for further term of three months imposed upon the appellant on each of the two counts is set aside. The appellant is acquitted of the said offences. (R.C.CHAVAN, J.)