Cri. Appeal No. 218/98 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 218 OF 1998 Hanmant s/o. Jotiba Ghogare, Age 35 yrs., Occu. Agril., R/o. Kakramba, Tq. Tuljapur, Dist. Osmanabad. ....Appellant. Versus The State of Maharashtra through Gajendra s/o. Narsu Mane, age- major, Occu. Agril., R/o. Ruibhar, Tq. & Dist. Osmanabad. ....Respondent. Mr. B.R. Sontakke Patil, Advocate for appellant. Mr. A.K. Tiwari, Advocate for appellant (appointed). Mr. S.G. Nandedkar, APP for State/respondent. CORAM : T. V. NALAWADE, J. DATED : 1st August, 2011. JUDGMENT : 1. This appeal is filed against judgment and order of Sessions Case No. 136/1997, which was pending in the Court of Additional Sessions Judge, Osmanabad. The appellant is convicted and sentenced for offence punishable under section 498-A of the Cri. Appeal No. 218/98 2 Indian Penal Code (IPC) by the decision dated 1.8.1998. 2. In short the facts leading to the institution of the appeal can be stated as follows :- Deceased Laxmibai was a daughter of complainant Gajendra Mane. She was given in marriage to the appellant six years prior to the date of incident. From the marriage, the deceased has left behind one son aged about one and half year and she was carrying of few months at the time of incident. 3. The complainant has made allegations that as the appellant/ husband had kept one concubine, he was giving illtreatment to Laxmibai. Laxmibai had stayed in the house of parents for about two years due to the conduct of the appellant. The appellant and some persons from his village had fetched the deceased from the place of the parents by giving promise that no illtreatment will be given to the deceased. The parents of deceased used to visit matrimonial house of the deceased and they used to take deceased to the doctor as she was suffering from abdominal pain. The deceased used to disclose that the husband was still giving illtreatment to her. One day prior to the date of incident, the complainant had visited the house of the appellant and he had Cri. Appeal No. 218/98 3 stayed there for one day. On that occasion also, the deceased had disclosed that there was still illtreatment from the husband. On 28.4.1997 Laxmibai committed suicide by hanging herself in the house of the husband. The report came to be given on 29th and the crime came to be registered at Cr. No. 102/1997 in Tuljapur Police Station. 4. Prior to the registration of the crime, the husband gave report and on that basis AD No. 21/1997 was registered. During inquiry of AD, inquest panchanama came to be prepared and the dead body came to be referred for post mortem examination. The doctor gave opinion that it was case of hanging. During inquiry of AD, the complaint came to be given. PSI Devidas Patil made investigation of the case. He recorded statement of mother and other witnesses. The appellant came to be arrested and chargesheet came to be filed for offences punishable under sections 306 and 498-A of IPC. In the Sessions Court, charge came to be framed for these offences and the prosecution examined four witnesses. The Trial Court has held that it is the case of suicide. But the Trial Court has convicted and sentenced the appellant only for the offence punishable under section 498-A of IPC. Cri. Appeal No. 218/98 4 5. In the appeal both the sides are heard. It was submitted for the appellant that the Trial Court has not considered other probability that the deceased was suffering from abdominal pain and even after treatment, she could not get relief from the pains. It was submitted that the possibility that the deceased committed suicide due to the abdominal pain cannot be ruled out and pains had become severe as she was carrying of few months. APP supported the decision of the Trial Court. 6. Complainant Gajendra (PW 2) has given evidence that the deceased started disclosing about the illtreatment after the marriage. Though the complainant has not positively stated that the deceased had lived in his house for about two years after the marriage, he has given evidence that he sent the deceased back to matrimonial house as Sarpanch and other persons from the village of accused came to his house to take the deceased back to matrimonial house. Godawari (PW 3), the mother of the deceased, has given such evidence. She has stated that the deceased had stayed in the house of appellant for about 2 to 3 years. The incident took place after 6 years of the marriage and the only son left behind by the deceased was aged about one and half years on the date of incident. In view of these circumstances, inference needs to Cri. Appeal No. 218/98 5 be drawn that immediately after the marriage, the deceased stayed for two to three years in the house of her parents and after returning to her matrimonial house, she gave birth to a son and she was also carrying of few months. 7. Gajendra (PW 2) has not given evidence that appellant had illicit relations and due to that he had given illtreatment. The reason for the illtreatment is not given by PW 2. Godawari (PW 3) has, however, tried to say that she had seen the concubine in the matrimonial house of the deceased. Such statement was not given by Godawari before police and this omission is duly proved in the evidence of Devidas (PW 4). The evidence of PW 2 shows that on the previous day of incident, he had visited the matrimonial house of the deceased and he had stayed there for about one day. His evidence does not show that he had seen such concubine in the house of the appellant. Thus, the evidence given by Godawari (PW 3) for the reason of illtreatment has no support from her husband and this allegation also does not appear to be true as after resumption of cohabitation, the deceased had given birth to a son and she was carrying of few months for second time. On the first occasion, there was abortion as per the evidence given by the parents. Cri. Appeal No. 218/98 6 8. Gajendra (PW 2) has admitted that the deceased was suffering from severe abdominal pain. He has admitted that treatment of lady doctor was given to the deceased and she was taken to many doctors, but there was no relief from pains. At the relevant time, she was taking treatment of two lady doctors, of Tuljapur, but she was suffering from severe pains. She was carrying of four to five months at the relevant time. Suggestion is given that the deceased was insisting that pregnancy needs to be terminated as she was suffering from pain, but the father was against it. This suggestion is denied by the father. But the fact remains that he has admitted that deceased was suffering from severe abdominal pain. Similar statement was given by Godawari and the relevant portion is proved as contradiction in the evidence of Devidas Patil (PW 4) as Exh. 20. Thus, the mother is not ready to admit the truth. 9. AD was registered on the day of incident on the basis of report given by husband and the evidence shows that it is the husband, who had given news to both witnesses and then they had visited to matrimonial house. The evidence of father shows that police came to the house of the husband and they were preparing panchanama etc. in his presence, But immediately he did not give Cri. Appeal No. 218/98 7 report against the husband. These circumstances have created probability that the deceased was suffering from severe abdominal pain and as she was carrying of four to five months, there was increase in pains and the deceased committed suicide only due to the abdominal pains. Allegations made by the mother that appellant had kept illicit relations with a woman and due to that there was illtreatment, are vague in nature. The name of the lady or place or the period since when there was such illicit relations is not known to the mother of the deceased. The evidence of father shows that he never complained to others that the husband was giving ill- treatment. The probability which is created in favour of the accused needs to be accepted and benefit of doubt needs to be given to the appellant. So this Court holds that the appeal needs to be allowed by setting aside the judgment and order of conviction. 10. For the appellant some reported cases were cited like AIR 2000 SC 398 [ Ram Prasad Vs. State of Bihar), 1998 CRI. L. J. 630 [Niranjan Mohapatra and another vs. State of Orissa]. They are on the appreciation of the evidence. The facts and circumstances of each and every case are always different. There is no ratio as scuh laid down. In any case, this Court has come to the conclusion that the prosecution has not proved beyond reasonable doubt that the Cri. Appeal No. 218/98 8 appellant had kept concubine and on that count, he was giving illtreatment to the deceased and due to the illtreatment the deceased committed suicide. Hence, the order. O R D E R 1. Appeal is allowed. Judgment and order of 2nd Additional Sessions Judge, Osmanabad, convicting and sentencing the appellant for offence punishable under section 498-A of IPC is set aside. The appellant Hanmant s/o. Jotiba Ghogare stands acquitted of the offence punishable under section 498-A of IPC also. 2. Advocate Shri. Tiwari, who was appointed through legal aid, is entitled to fees as he has studied the matter and he argued in the matter. Registrar (Judicial) is to fix the fees and to pay Mr. Tiwari Advocate. Fine amount, if any, deposited is to be returned to appellant. [ T. V. NALAWADE, J.] ssc/cria218.98