1 Cri. Appeal No.359, 368/1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 359 OF 1991 The State of Maharashtra ] Appellant ] (Ori. complainant) Vs. 1. Laxman Kakadya Merya ] Age : 33 years ] ] 2. Pramila Laxman Merya ] Respondents Age : 28 years ] (Ori. Accused 1 & 2) ] Both r/o : Nikavli, ] Dhangadpada, Tal. Dahanu, ] District Thane. ] Mrs. PH. Kantharia, APP for appellant. Mrs. Sushila Goswami, Advocate for respondents. WITH CRIMINAL APPEAL NO.368 OF 1991 Laxman Kakadya Merya ] (At present in Jail) ] Appellant R/o : Nikavli, ] (Accused no.1) Dhangadpada, Tal. Dahanu, ] District Thane. ] The State of Maharashtra ] Respondent ] Mrs. Sushila Goswami, Advocate for appellant. Mrs. PH. Kantharia, APP for State. Coram : Smt. R.P. SondurBaldota, J. Date : 1st September, 2010 2 Cri. Appeal No.359, 368/1991 JUDGMENT : 1. This is a common order of appeal filed on behalf of original accused No.1 challenging his conviction under Section 498-A Indian Penal Code and the appeal filed by the State challenging acquittal of accused no.1 of the offence punishable under 306 Indian Penal Code. Heard the learned counsel for both the appellants in both the appeals. 2. The prosecution case in short is that, accused no.1 Laxman, is the husband of original accused No.2, Pramilabai and also deceased Mathibai. Mathibai was his second wife. He had married her about 3 years prior to the incident in a `Pat ceremony, as Pramilabai was unable to bear a ’ child. The parties belong to Adiwasi community. Parents of Mathibai reside in the adjoining village, Rankol. Both the accused persons used to harass and ill-treat Mathibai and beat her. On 11th May 1987, the appellant assaulted her and stood on her neck. Apprehending danger to her life, Mathibai ran away to the house of her uncle, Jivya Pardhi and narrated the incident to her aunt, Kamubai. After some time, accused no.1 went there in search of Mathibai, but she refused to return with him and hid herself on the loft of her parents house. On the next day, the appellant once again went to persuade Mathibai to return, then she returned with him at about 3.30 pm. However, on the same night when both the accused were sleeping in the house, Mathibai committed suicide by 3 Cri. Appeal No.359, 368/1991 hanging herself from the mango tree behind the house of accused. Then a complaint came to be filed against the appellant and his wife Pramilabai under Section 306 read with 498-A Indian Penal Code. 3. In order to prove its case against the accused, the prosecution has examined Kamubai Divya Pardhi, PW-2, who is aunt of Mathibai, Jivya Kakadya Pardhi- PW3, uncle of Mathibai and Venubai Ladakya Paradhi, PW-4, mother of Mathibai. There was no dispute that Mathibai had died a suicidal death. The few undisputed facts are that - Mathibai died a suicidal death, at that time, accused no.2- Pramila was pregnant. It was Mathibai s second marriage to the appellant, after she had been divorced ’ by her first husband. The defence of the accused was that of total denial. It was denied that they had caused any harassment to Mathibai. Instead it was their complaint that Mathibai was used to avoid work and often went to her parents house. Her divorce from the first husband was for the very reason that she was not working properly neither in the house nor in the field. This led to quarrels. It is also their defence that Mathibai was jealous of accused no.2, as she was pregnant. 4. The trial court on appreciation of evidence found that there was no evidence whatsoever of harassment against accused no.2- Pramilabai and acquitted her. As regards the appellant, the trial court was of the opinion that the evidence before the court supported only the charge under 4 Cri. Appeal No.359, 368/1991 Section 498-A Indian Penal Code and it did not establish the charge under Section 306 Indian Penal Code. Accordingly the appellant was convicted only for the offence punishable under Section 498-A Indian Penal and sentenced to suffer rigorous imprisonment for two yeas and pay fine of Rs.200/-. 5. The learned APP appearing for the State in its appeal submits that after appreciation of the entire evidence, the learned Sessions Judge has recorded his opinion at paragraph 12 of the judgment as, “ ” In my opinion, the evidence of the prosecution establishes “ that she was subjected to cruelty by accused no.2 and due to his ill-treatment, she committed suicide ” However, after recording this finding, the learned Sessions Judge convicted the appellant only for the offence under Section 498-A Indian Penal code and not for the offence under Section 306. This according to the learned APP exhibits perversity and hence, it is submitted that the appellant ought to have been convicted under Section 306 Indian Penal Code also. The learned counsel for the appellant in the other appeal submits on the other hand that the evidence before the court is insufficient to bring either of the charges. It is therefore, to be seen whether the evidence led by the prosecution in the case is sufficient to bring home the charges under Section 306 read with Section 498-A Indian Penal Code against the appellant. 5 Cri. Appeal No.359, 368/1991 6. The evidence of harassment or ill-treatment consisted of depositions of Kamubai, aunt of Mathibai, Jivraj Pardhi, her uncle and Venubai, her mother. It is the evidence of Kamubai and Jivraj that a day prior to the incident, Mathibai had come to the village of her parents, which is located at the distance of 2-3 kms. At that time, parents of Mathibai had gone for work. Mathibai informed Kamubai that she had quarreled with the appellant and after which the appellant assaulted her and had kept his foot on her neck. She complained that though accused no.2 was sleeping there, she did nothing to help Mathibai. It has been further evidence of Kamubai that on the same day at about 1 pm., the appellant came to her house looking for Mathibai Kamubai had offered him meal and told him that Mathibai was not ready to go along with him. She had hidden herself on the loft inside the house of parents. The appellant searched for Mathibai and when he could not trace her, he went to the house of her sister in the adjoining village Raykola. On the next morning again, the appellant again came looking for Mathibai. This time also, he was served meal by Kamubai and then at about 3 pm., Mathibai went along with him. At that time, Kamubai had requested the appellant not to quarrel with Mathibai. It is not her evidence that Mathibai was either reluctant to return to the matrimonial home or she was forced to return by anybody. It is also not the case of the prosecution that any 6 Cri. Appeal No.359, 368/1991 incident had occurred after the return of Mathibai. Evidence of Jivraj runs on the same lines as Kamubai. As regards evidence of Venubai, she does not refer to the incident of assault deposed by Kamubai as she was not aware of it. But she stated in general terms that the husband of Mathibai used to harass her. 7. In my opinion, the evidence led by the prosecution definitely brings home the charge under Section 498-A Indian Penal Code, but it is not sufficient to bring home the charge of 306 Indian Penal Code. This is because had there been a real threat to the live of Mathibai, she would not have returned with the appellant to his house. It is not the case of the prosecution or any of the witnesses that there was any force on the part of either the appellant or the relatives of Mathibai making her return to the house of husband. Therefore though there were incidents of quarrel and assault, at the hands of the appellant, it cannot be said that it was sufficient to drive Mathibai to commit suicide. The observations at paragraph 12 of the judgment of learned Sessions Judge, submitted by learned APP, in my opinion are absolutely loose observations in the judgment and hence must be ignored. In these circumstances, both the appeals are dismissed. (Smt. R.P. SondurBaldota, J) (Smt. R.P. SondurBaldota, J)