1 Cri.Appeal No.262/99 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.262 OF 1999 Ashok Yashwant Sahane Since deceased through his legal heir Manda Ashok Sahane Age: 30 yrs., Residing at C/o. Pratap Bacchav, Masrul, Barade Galli, Shivaji Chowk, Nashik ...Appellant. v. The State of Maharashtra, (At the instance of Bhadrakali Police Station, Nashik) ...Respondent. Mr.Ganesh Gole, adv. For the Appellant. Smt.A.A.Mane, APP for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : AUGUST 3, 2010 ORAL JUDGMENT: 1 This appeal was filed by the original accused no.1 challenging the judgment and order passed by the 5th Additional Sessions Judge, Nashik in Sessions Case No.227/97 whereby he was convicted for the offences punishable under Section 498-A of the IPC and was sentenced to undergo R.I. , for one year and to pay fine of Rs.1,000/- 2 At the outset, it may be stated that pending the appeal, the original appellant/accused no.1 expired and technically appeal could be 2 Cri.Appeal No.262/99 disposed off as abated. However, on the application of one Manda, who claims to be wife of the deceased accused no.1 Ashok, she was allowed to prosecute the appeal possibly because the deceased was an employee of the Municipal Corporation and if the conviction is set aside, his widow may be entitled death cum retirement benefits. 3 Prosecution case in brief is that accused no.1 Ashok was married to one Sangita on 13th May 1994 and after marriage, she went to live with her husband. Accused No.2 shanta was mother of the accused no.1 and accused no.3 Alka was wife of the brother of the accused no.1. According to the prosecution, for about six months after the marriage, Sangita was treated well. However, thereafter, accused no.1 used to beat and ill treat her under the influence of liquor as he was addicted to liquor. He also started pressurizing her to bring an amount of Rs.15,000/- from her parents for purchase of motor cycle. Accused no.2 was also helping him and insisting Sangita to bring the money. Due to failure of her parents to meet the demands, she was being continuously ill treated. Meanwhile, she delivered a female child. After that accused no.1 snatched her child and drove her out from the house. About that a complaint was lodged with the police. Later on, accused no.1 returned the child to Sangita. Due to intervention of the relatives, she was also 3 Cri.Appeal No.262/99 taken back by the accused no.1. However, ill treatment continued. Finally on 21st July, 1997 she committed suicide by burning herself. In the incident, her minor child was also burnt, who also died after a few days due to burn injuries. It was also alleged that the accused no.1 and 3 had illicit relations and when Sangita objected to the same, she was harassed on that ground also. After investigation, police filed charge- sheet under Section 306 and 498-A read with Section 34 of the I.P.C., against all the three accused persons. Case was committed to the Court of Sessions for trial. 4 After trial, all the accused persons were acquitted of the charges punishable under Section 306 of the I.P.C., as the prosecution could not prove that she has committed suicide. The trial Court also acquitted accused nos.2 and 3 of the charges punishable under Section 498-A of the I.P.C. However, the accused no.1 was convicted and sentenced as stated above. 5 The learned counsel for the appellant vehemently contended that no statement of Sangita was recorded by the police and nor her evidence was available before the Court as she had died. According to him, prosecution relied on the statement of some witnesses, who had no personal knowledge about the cruelty meted out to Sangita. They relied 4 Cri.Appeal No.262/99 exclusively on what was allegedly conveyed to them by Sangita. He contended that as said information about the ill treatment did not pertain to the cause of or circumstances leading to her death, such evidence would not be admissible under Section 32 of the Evidence Act. On the other hand, it is contended on behalf of the prosecution that the evidence of some of the prosecution witnesses, particularly, P.W.2 Murlidhar father of the deceased, P.W.3 Kanta mother of the deceased and P.W.4 Suresh brother-in-law of the accused no.1 would go to show that they had personal knowledge and had actually intervened in the disputes and had tried to convince and pacify the accused no.1 against any ill treatment and demand of money and, therefore, their evidence cannot be brushed aside merely as hear-say. 6 P.W.2 Murlidhar, father of the deceased deposed that marriage had taken place on 13.5.94 and for about 5 or 6 months after the marriage, there was no grievance or complaint from Sangita. However, thereafter, she was being harassed on account of payment of Rs.15,000/- as the accused no.1 wanted to purchase a vehicle to attend his duty. For this purpose accused used to physically and mentally harass Sangita to pressurize her to bring money. Sangita told her parents about such demands. According to P.W.2 Murlidhar after getting such 5 Cri.Appeal No.262/99 information from his daughter, he tried to convince the accused and told him that he was not in good financial condition and would make the payment as and when his financial condition would improve. He also deposed that he had taken P.W.4 Suresh Dattatraya Shiledar, brother-in- law of the accused no.1 with him to convince the accused against such demands and ill treatment. Meanwhile, Sangita was pregnant and was taken to her parents place at Village: Derde where she gave birth to the female child, namely Komal, on 16.11.1995. He deposed that after the delivery he reached Sangita alongwith her daughter at the house of the accused at Nashik. At that time, accused no.1 was heavily drunk and he started abusing them in filthy language. Later on, on 3.7.1996 accused snatched minor daughter from Sangita and drove her from the house threatening her that she should come back only if she could bring an amount of Rs.15,000/-. On the same day Sangita went to the house of her parents and informed them about this incident. Therefore, her father P.W.2 lodged complaint dated 14.1.1997, Ex.22 at Bhadrakali Police Station by sending the same by registered post. It appears that thereafter due to intervention of police, matter was settled and accused no.1 returned the child to Sangita. Therefore, on 26.1.1997, P.W.2 Murlidhar gave in writing Ex.23 to the police that in view of the return of the child 6 Cri.Appeal No.262/99 and amicable settlement, he had no more complaints against anybody. 7 From his evidence, it becomes clear that prior to the delivery, not only Sangita had told her parents that she was being physically and mentally harassed on account of demand of Rs.15,000/-, her father had talked to accused no.1 to convince him against such harassment. After delivery when her father went to reach her at the house of the accused, accused no.1 abused them in filthy language. At that time, P.W.2 Murlidhar was present and was eye witness of that incident. After sometime when Sangita returned to her parents house with the grievance that her child was snatched away by the accused no.1, her father Murlidhar had to intervene. He approached the police and lodged an application. Due to intervention of police, child was returned by accused no.1 to Sangita. To that episode also, Murlidhar was witness, though he was not witness when child was actually snatched away by the accused from Sangita. 8 As per the evidence of P.W.2 Murlidhar about a month after the child was returned to Sangita, accused no.1 Ashok alongwith two- three persons had been to the house of her parents and persuade them to send Sangita back to his house. Therefore, P.W.2 Murlidhar agreed and sent his daughter alongwith the accused. He deposed that on 17.7.1997, 7 Cri.Appeal No.262/99 he had been to the house of the accused to meet his daughter. At that time, accused no.1 Ashok abused him under the influence of liquor and, therefore, he returned to his village. On the request of his wife, P.W.2 Murlidhar again went to the house of the accused on 20.7.1997 alongwith his wife to meet their daughter Sangita. When they went to the house of the accused, accused was under the influence of the liquor and he abused them in filthy language and also threatened that if the demand of money would not be fulfilled, consequences would be very bad. Naturally, when P.W.2 Murlidhar and his wife P.W.3 Kanta went to the house of the accused to meet their daughter, their daughter must be present in the house and at that time also accused had abused them on account of demand of money. Thus, Murlidhar and his wife were eye witnesses of that demand of money and abuses, which amounted to cruel treatment to Sangita. P.W.3 Kanta broadly supported the evidence of her husband. The learned counsel for the accused/appellant pointed out that in the cross-examination Murlidhar admitted that he had not stated before the police that on 17.7.1997 when he had been to the house of the accused, that accused no.1 was under the influence of liquor and again when he went to the house of accused no.1 on 20.7.1997, accused no.1 was under the influence of liquor and at that time, he had given 8 Cri.Appeal No.262/99 threats on account of demand of money. On careful perusal of his F.I.R., in the light of the admissions recorded in his cross-examination, it appears that he had not stated in the F.I.R., that accused was under the influence of liquor, on those two occasions. Thus, real omission was only in respect of statement that the accused was under the influence of liquor. If that part of his deposition is kept aside, there is no material omission in the evidence of Murlidhar. In view of this, it appears that on 17.7.1997 Murlidhar went to the house of the accused and accused no.1 had abused him and again on 20.7.1997, P.W.2 Murlidhar and his wife went to the house of the accused. At that time also accused no.1 had abused them and had threatened with serious consequences if the payment is not made. They had been to the house of the accused to meet their daughter and naturally their daughter Sangita must be present in the house when her parents were abused and demand was made. This act of accused no.1 amounted to cruelty to Sangita. 9 P.W.4 also deposed that about 4-5 months after the marriage , accused Ashok and his mother started harassing Sangita on account of demand of Rs.15,000/- for purchase of vehicle. He deposed that this was told to him by Sangita but then he had tried to convince the accused not to make such a demand but they did not accept his advice. It 9 Cri.Appeal No.262/99 is material to note that sister of the accused no.1 is wife of P.W.4 Suresh and thus, P.W.4 Suresh is close relative of the accused and still he deposed that his attempts to convince the accused persons against such a demand were not successful. This evidence also provides corroboration to the prosecution story. Not only this, P.W.4 Suresh also deposed that Sangita was driven out from the house by the accused after snatching her minor child and about that her father had approached the police. He deposed that thereafter the accused no.1 came to village:Derde and prayed for an apology and took back Sangita and their daughter to his house but as he again started harassing her, P.W.4 had been to the house of the accused at Nashik and tried to convince them against such an attitude. He also deposed that the accused no.1 was in the habit of drinking. If whole of the prosecution evidence is taken into consideration, it appears that P.W.2 Murlidhar, P.W.3 Kanta and P.W.4 Suresh came to know from Sangita about the harassment meted out to her at the house of the accused. To that extent, evidence of these witnesses could be treated as hear-say. If the case would be based on that hear-say statement only, prosecution could not succeed because that evidence could not be covered and be admissible under Section 32(1) of the Evidence Act as held by the Supreme Court in M. Gananath 10 Cri.Appeal No.262/99 Pattnaik v. State of Orissa 2002-Crimes(Sc)-1-309. However, in the present case, certain facts had taken place in presence of these witnesses. They had themselves intervened and interacted with the accused persons. The accused no.1 Ashok had abused P.W.2 Murlidhar and P.W.3 Kanta when they approached him and also pressed for payment of money. In view of this evidence, I am convinced that prosecution has proved that the accused no.1 had treated his wife Sangita with cruelty. Therefore, I do not find any fault with the conviction of accused no.1 Ashok for the offence punishable under Section 498-A of the I.P.C. 10 For the aforesaid reasons, appeal stands dismissed. (J.H. BHATIA,J.)