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The State Of Maharashtra vs Dattatraya Tukaram Kadam on 20 January, 2018

APPEAL-1098-2002.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1098 OF 2002

THE STATE OF MAHARASHTRA )…APPELLANT

V/s.

DATTATRAYA TUKARAM KADAM )…RESPONDENT

Mr.Prashant Jadhav, APP for the Appellant – State.

Mr.Sandeep Waghmare, Advocate for the Respondent.

CORAM : A. M. BADAR, J.

DATE : 20th JANUARY 2018

JUDGMENT :

1 By this appeal, the appellant/State is challenging the

judgment and order dated 30th March 2002 passed by the learned

1st Ad-hoc Additional Sessions Judge, Satara, in Sessions Case

No.127 of 2000, thereby convicting the respondent/accused of

offences punishable under Sections 498A and 306 of the Indian

Penal Code.

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2 Facts in nutshell leading to the prosecution of the

respondent/accused are thus :

(a) PW2 Saraswati Aangre is the First Informant in the instant

case. She is a resident of Pune. Her daughter Sujata

married respondent/accused on 28th April 1999. Thereafter,

she started cohabiting with the respondent/accused at Wai

in Satara district. They were residing in the tenanted

premises owned by PW4 Jaywant Mandhare. The

respondent/accused was serving in the Life Insurance

Company.

(b) It is case of the prosecution that the respondent/accused

was suspecting the character of Sujata and torturing her

mentally by stating that she has some affair at Pune and she

looks at strangers. According to prosecution case, on two

occasions, Sujata was aborted against her wish. Thus,

according to the prosecution case, the respondent/accused

used to subject his wife Sujata to cruelty by suspecting her

character as well as by forcing her to abort on two

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occasions. Fed up with constant ill-treatment, on 20 th March

2000, in the morning hours, Sujata committed suicide by

jumping in the canal. Her dead body was then fished out of

the canal. Report (Exhibit 30) of the accidental death of

Sujata was lodged by the respondent/accused on 20 th March

2000 itself.

(c) After receipt of intimation of death of Sujata, her parental

relatives went to Wai. Her mother PW2 Saraswati Aangre

lodged First Information Report (FIR) (Exhibit 24) against

the respondent/accused on 20th March 2000 itself. The

Investigating Officer then recorded statement of witnesses.

Dead body of Sujata was sent for autopsy and on completion

of routine investigation, charge-sheet for offences

punishable under Sections 498A and 306 of the Indian Penal

Code came to be filed against the respondent/accused.

(d) After framing charge, in order to bring home guilt to the

respondent/accused, the prosecution has examined in all

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seven witnesses. In order to prove abetment by the

respondent/ accused to deceased Sujata by subjecting her to

cruelty within one year of her marriage, the prosecution has

placed reliance on evidence of PW1 Sanjay Aangre – brother,

PW2 Saraswati Aangre – mother and PW3 Aatmaram

Aangre – cousin uncle and PW5 Tukaram Hovale – maternal

uncle of deceased Sujata. The prosecution has also

examined landlord cum neighbour of the respondent/

accused and deceased Sujata namely, PW4 Jaywant

Mandhare. Police Head Constable Jyotiram Bhosale is

examined as PW6 to prove suicidal death, whereas the

Investigating Officer Dipak Savant, Assistant Police

Inspector, is examined as PW7.

(e) After hearing the parties, the learned trial court concluded

that the prosecution has failed to prove that deceased Sujata

was subjected to cruelty by the respondent/accused or he

had abetted commission of suicide by Sujata by subjecting

her to cruelty. Accordingly, by the impugned judgment and

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order, the learned Ad-hoc Additional Sessions Judge was

pleased to acquit the respondent/accused.

6 I have heard the learned APP appearing for the

appellant/State. He vehemently argued that by clear and cogent

evidence of brother, mother and cousin uncle of deceased Sujata,

the prosecution has established cruel treatment by the

respondent/accused to deceased Sujata, who died within one year

from her marriage with the respondent/accused, and therefore,

offences alleged against the respondent/accused are proved. Per

contra, the learned advocate appearing for the respondent/

accused justified the impugned judgment and order.

7 I have carefully considered the rival submissions and

also perused the record and proceedings including deposition of

witnesses and documentary evidence adduced by the prosecution.

8 Now let us examine whether Sujata Dattatraya Kadam

died homicidal death on 20th March 2000. Sujata was residing

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with her husband i.e. the respondent/accused at the house of PW4

Jaywant Mandhare. The house was comprising of six rooms and

the respondent/accused along with deceased Sujata was residing

in one of these six rooms. Evidence of PW4 Jaywant Mandhare

shows that on 20th March 2000, upon getting information in

respect of death of Sujata, he had been to the bank of canal and

found dead body of Sujata kept there.

9 Evidence of PW6 Jyotiram Bhosale, Police Head

Constable, shows that on 20th March 2000, the respondent/

accused came to the police station and lodged report Exhibit 30.

The report Exhibit 30 lodged by the respondent/accused is to the

effect that in the morning hours, he found Sujata missing and

when he searched for her in the vicinity, he saw her dead body in

the water of the canal. The respondent/accused reported to police

that Sujata committed suicide and that is how A.D.Case No.16 of

2000 came to be registered.

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10 The report at Exhibit 30 came to be lodged by the

respondent/accused when there was no offence registered at the

police station in respect of death of Sujata. It is neither a

confession nor a statement recorded during the course of

investigation. The report at Exhibit 30, as such, has relevance

under Section 21 of the Evidence Act, as an admission.

11 The certificate regarding cause of death Exhibit 13 and

postmortem report at Exhibit 14 shows that Sujata died because of

asphyxia caused due to drowning. There was no reason for her to

go to the canal in the morning hours and evidence on record does

not suggest that she had accidental fall in the canal. In this view

of the matter, I find no infirmity with the finding of the learned

trial court that Sujata died suicidal death on 20th March 2000.

12 Now let us examine whether evidence of prosecution

establishes cruelty as defined by explanation to Section 498A of

the Indian Penal Code and whether the prosecution can establish

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that by subjecting a married woman to cruelty, the respondent/

accused had abetted her to commit suicide.

13 For establishing cruelty, the prosecution had relied on

evidence of brother, mother and uncles of deceased Sujata. They

are PW1 Sanjay Aangre – brother, PW2 Sarawati Aangre – mother,

PW3 Aatmaram Aangre – cousin uncle and PW5 Tukaram Hovale

– maternal uncle. At this stage, it needs to be kept in mind that in

the offences of the present nature, allegations are very easily

made and once made, it is very difficult to dislodge them. Mostly

in such cases, prosecution witnesses are near and dear ones of the

deceased. Therefore, if the evidence fails to inspire confidence,

then it is advisable to look for corroboration from some

independent source. Evidence of neighbour in such matters

assumes great importance because they are eye witnesses to the

matrimonial life of the couple.

14 In the case in hand, PW1 Sanjay Aangre, PW2

Saraswati Aangre, PW3 Aatmaram Aangre and PW5 Tukaram

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Hovale have deposed in unison that after marriage, the

respondent/accused used to harass Sujata by suspecting her

character. He used to say that Sujata was having some affair with

somebody and was giving mental torture to her. PW5 Tukaram

Hovale claimed that four months prior to the incident of suicidal

death of Sujata, she had disclosed to him that the respondent/

accused was ill-treating her by suspecting her character, but this

witness has accepted the fact that he did not even persuade the

respondent/accused in the matter. In the like manner, PW1

Sanjay Aangre has also admitted in cross-examination that he had

not disclosed to his mother PW2 Saraswati Aangre about

narrations of Sujata regarding suspicion by her husband on her

character. That apart, evidence of all these witnesses is too vague

on this aspect. They have not spoken that deceased Sujata had

declared them name of a specific person with whom, according to

the respondent/accused, she was having some affair. What type of

ill-treatment the respondent/accused used to give her on this

pretext, is also not disclosed by any of these witnesses. Thus,

allegations are general in nature regarding suspicion and the

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manner in which she used to be ill-treated by the respondent/

accused because of this reason, is also not clarified by any of the

witnesses.

15 The next allegation in order to establish cruelty is two

forced abortions of deceased Sujata by the respondent/accused.

On this aspect, cross-examination of PW2 Saraswati Aangre –

mother, becomes relevant. In paragraph 7 of her cross-

examination, PW2 Saraswati Aangre has stated thus :

“7 In July, 1999 Sujata was taken to the
hospital of Dr.Saigaonkar at Wai for her per vagina
bleeding. At that time the dilatation and evacuation
was done by Dr.Saigaonkar. Then in October, 1999
Sujata was again pregnant. At that time also Sujata
was taken to Dr.Purohit for P.V.bleeding. Dr.Purohit
is our family doctor, therefore Sujata had suggested
to go to Dr.Purohit. There again evacuation was
done by Dr.Purohit. Thereafter, Sujata never
remained pregnant till her death. It is not true that
Dr.Purohit had told that Sujata will not retain, if
conceived.”

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16 PW3 Aatmaram Aangre, who is cousin uncle of

deceased Sujata, has stated in his cross-examination that the first

evacuation of Sujata was done by Dr.Saigaonkar at Wai. She

again remained pregnant and then she was taken to Dr.Purohit.

At that place, evacuation was done. This witness has candidly

accepted the fact that he has not stated to police while recording

his statement that deceased Sujata had disclosed to him that her

abortions were done against her will.

17 The prosecution has placed on record medical

certificates at Exhibits 16 and 17 in respect of medical termination

of pregnancy of deceased Sujata. These certificates reveal that

initially on 9th July 1999, Sujata was found to be a patient of

incomplete abortion and she was bleeding per vagina. Therefore,

evacuation was done under general anesthesia by Dr.Saigaonkar.

Another certificate reveals that on 24th October 1999, Sujata was

admitted to hospital of Dr.Purohit as a patient of vaginal

bleeding, pain in hypogastrium as well as fever. The certificate at

Exhibit 17 shows that evacuation was done for inevitable abortion

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due to pelvic infection. This evidence adduced by the prosecution

indicates that there were no forced abortions on deceased Sujata

done against her will or consent by the respondent/accused.

Thus, the very substratum of the prosecution case is shaken from

the evidence adduced by the prosecution itself.

18 The term "cruelty" implies harsh and harmful conduct

with certain intensity and persistence. It covers act causing both

physical and mental agony as well as torture or tyranny.

Harassment though not defined in Section 498A of the Indian

Penal Code, amounts to subjecting a person with unbearable,

continuous or repeated unprovoked vexatious attacks causing

harm or pain. Section 498A of the Indian Penal Code does not

come into play in every case of harassment and / or cruelty. The

prosecution is required to prove willful conduct of such a nature

as is likely to propel or compel to commit suicide or to cause grave

injury or danger to her life, limb or health. In the case in hand,

allegations coming on record from the mouth of near and dear

ones of the deceased are not of such a nature which could drive

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Sujata to commit suicide. They are not of sufficient gravity. No

grave or sudden provocation to deceased Sujata to end her life can

be found from the evidence of the prosecution. To crown this all,

evidence of PW4 Jaywant Mandhare, who is next door neighbour,

as well as landlord of the deceased goes to show that everything

was well in matrimonial life of deceased Sujata. Thus, I am

unable to find out any instigation, provocation, incitement or

encouragement by the respondent/accused to deceased Sujata to

end her life by subjecting her to cruelty as defined by explanation

to Section 498A of the Indian Penal Code.

19 No infirmity, as such, can be found in the impugned

judgment and order of acquittal of the respondent/accused

recorded by the learned trial court.

20 In the result, the appeal is devoid of merits and the

same is dismissed.

(A. M. BADAR, J.)

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