Bombay High Court Bhargav Kundalik Salunkhe-vs-State Of Maharashtra on 14 December, 1995
Equivalent citations:1996 CriLJ 1228
Bench: A Moorthy, G Majithia
1. Bhargav Kundalik Salunkhe, the accused-appellant, was charged for knowingly or intentionally causing the death of his wife Sou. Kantabai; for, knowing that an offence of murder has been committed, causing evidence of the commission of that offence to disappear, viz. gold ornaments; and for, being the husband of the said Sou. Kantabai, subjecting the said Sou. Kantabai to mental and physical harassment and cruelty. The charges having been proved, he was convicted and sentenced for the offences punishable under Sections 302, 201 and 498A of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 1,000/-; to suffer R.I. for 2 years and to pay a fine of Rs. 500/-, in default to undergo R.I. for one month; and to suffer R.I. for one year and to pay a fine of Rs. 300/-, in default to undergo R.I. for one month, respectively, by the III Additional Sessions Judge, Satara, by his judgment and order dated December 8, 1993, in Sessions Case No. 18/87. The accused was also charged under Section 404 of the I.P.C. for dishonestly misappropriating or converting to his own use certain gold ornaments of the said Sou Kantabai. He was, however, acquitted of this charge by the learned trial Judge.
2. The prosecution story, as is emerging from the evidence brought on record, briefly put, is as under :-
Sou. Kantabai (since deceased) was married to the accused in May 1985. In August 1986, she was serving as a primary school teacher at Umbraj. The accused served as a teacher in Mhalaskant Vidya Mandir, Pali from October 1985 to July 1986. Thereafter he was transferred and posted in the New English School, Kadave. He was, however, residing at Umbraj. The deceased and the accused had rented out two-room suite in the residential house owned by Ganpatrao Thorat (P.W. 2). It is alleged that the accused used to quarrel with his wife on the ground that her pay was insufficient; that she used to visit the houses of teachers; and that she worked in the school beyond school hours. It is also alleged that the accused took exception to the visit of the deceased to her parents’ house P.W. 3, Sampatrao Jadhav, uncle of the deceased, learned about the quarrels from the deceased and P.W. 2.
On August 23, 1986, at about 6.30 a.m., P.W. 2 noticed that the door of the rear side room in the possession of the accused and the deceased was open. He also noticed that the Luna vehicle of the accused was in the room. It was Saturday. On Saturdays, the school hours for the accused were from 7.00 a.m. onwards. P.W. 2 entered that portion of the house which was in the possession of the deceased and the accused and noticed that the deceased was lying in the bed. He did not find the accused in the house. He also noticed a chit (Ex. 54) near the bed. He read it and kept it at the same place where it was found. Thereafter P.W. 2 sent his son Ashok to give message to P.W. 3. The message was received by P.W. 3 at about 8.00 a.m. P.W. 3 immediately left for the house of the accused at Umbraj. He found Kantabai lying in the bed. He tried to pull the hand of the deceased so that she could get up but to no avail. He called the doctor who examined the deceased and it was then that P.W. 3 realised that the deceased was no more. He noticed marks of violence and swelling on and near the throat of the deceased. P. W. 3 suspected that the accused had caused the death of the deceased by throttling her. He lodged the F.I.R. at police station Umbraj at about 11.00 a.m. which came to be registered as C.R. No. 152/86. P.W. 3’s supplementary statements were recorded on August 24, 1986, and on August 27, 1986.
The investigation was conducted partially by P.W. 10, P.S.I. Kulkarni. He drew inquest panchanama, Ex. 12, panchanama of the scene of offence, Ex. 13, and the clothes of the deceased were attached under panchanama, Ex. 14. A note book, Article No. 9, and a letter, Article No. 8 (Ex. 54) were found at the site of offence. These were attached under panchanama, Ex. 13. The body of the deceased was sent for post-mortem examination. The memorandum of post-mortem examination was produced at the trial as Ex. 33. The Medical Officer conducting the post-mortem examination opined that the death of the deceased was due to asphyxia due to throttling. The accused was arrested on August 25, 1986.
P.W. 11, P.I. Chavan, took over the investigation from P.W. 10 on August 27, 1986. P.W. 3 on August 27, 1986, produced some letters or chits (proved at the trial as Exs. 28 to 30), before the investigating officer. On the same day, brother of the accused produced a hand bag, cap, shirt, pant, handkerchief and photo album containing two chits before the investigating officer and those were attached under panchanama, Ex. 17. P.W. 11 obtained specimen handwriting and signatures of the accused in the presence of panchas. The specimen handwriting and signatures were proved at the trial as Exs. 47 to 53. While in police custody, the accused made a statement in the presence of panchas leading to the discovery of gold bangles and gold bormal which allegedly belonged to the deceased. These ornaments were seized from the possession of the brother of the accused at the instance of the accused as per panchanama, Ex. 23. The investigating officer also collected the application and the written apology submitted by the accused to the Head Master. The chits, articles 27 and 28, proved at the trial as Exs. 55 and 32, respectively, were recovered from the house of the accused in the course of search on September 3, 1986 and these were attached under panchanama, Ex. 24. The disputed documents, viz. Exs. 30, 32, 34, and 55, allegedly written by the accused and his specimen handwriting and signatures Exs. 47 to 53, were sent to the Handwriting Expert for expert opinion. Jaising Landage, P.W. 9, Assistant State Examiner of Documents, gave opinion as per Ex. 46 that the disputed documents and the admitted documents were written by one and the same person. The investigating officer also got drawn the map of the scene of offence, Ex. 20.
3. After completion of the investigation, charge-sheet was filed for the offences punishable under Sections 302, 404 and 498-A of the I.P.C. in the Court of Judicial Magistrate, First Class, Karad. The Judicial Magistrate, First Class, committed the case to the Court of Session as the offence under section 302 of the I.P.C. was exclusively triable by the Court of Session.
4. The learned trial Judges framed the charges under Sections 302, 201, 404 and 498-A of the I.P.C. against the accused. The charges were read over and explained to the accused. He did not plead guilty to the charges and claimed to be tried.
5. The prosecution solely depended on the circumstantial evidence to prove the charges framed against the accused. The learned trial Judge, from the evidence brought on record, found that the following circumstances, namely, :-
“(1) The relations between the accused and his wife Kantabai were very strained and that provided the accused motive for committing the alleged offences.
(ii) The ornaments articles No. 25 and 26 were on the person of Kantabai on 22-8-86 and she wore those ornaments regularly.
(iii) Kantabai met death in the night of 22-8-86 and 23-8-86 in her own house.
(iv) None except the accused lived with Kantabai.
(v) The ornaments articles Nos. 25 and 26 only were removed from the person of Kantabai in the night of 22-8-86 and 23-8-86.
(vi) The accused and none else removed the ornaments articles Nos. 25 and 26.
(vii) The ornaments articles Nos. 25 and 26 belonging to Kantabai were recovered at the instance of the accused, from his brother.
(viii) The chit article No. 8 Ex. 54 was found near the cot in the room in possession of the accused in the morning of 23-8-86.
(ix) The chit Ex. 54 was written by the accused and it contains a confession by the accused.
(x) The accused was not in his house in the morning of 23-8-86 and he was arrested on 25-8-86.
(xi) The accused was absconding soon after the incident.
(xii) The accused wrote the disputed letters, which show that his relations with his wife were strained.
(xiii) The defence contention that ornaments articles 25 and 26 were entrusted by Kantabai to father of the accused on 22-8-86 is not proved. This indicates that defence is false.
were proved by the prosecution. He concluded that there circumstances established that the accused had caused the death of his deceased wife by throttling. He accordingly convicted and sentenced the accused as stated above.
6. Indisputably, the prosecution had depended on circumstantial evidence alone. It is no more open to dispute that in cases in which the evidence is purely, of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt, and the facts and circumstances should not only be consistent with the guilt of the accused, but they must be such in their effect as to be entirely incompatible with the innocence of the accused and must exclude very reasonable hypothesis, consistent with his innocence. In the light of these well-settled principles, we will now examine whether these well-settled principles were kept in view by the learned trial Judge while convicting the accused of the offences charged.
7. P.W. 2 Ganpatrao Thorat – is the landlord of the tenanted rooms in the possession of the deceased and the accused. On August 23, 1986, at about 6.30 a.m., he noticed that the door of the rear side room in the possession of the accused was open. He entered the room and found that the deceased was lying in the bed. He also found a chit (which was subsequently exhibited as Ex. 54) near the bed. He allegedly read the chit and placed the same at the place from where he had lifted it. This chit allegedly was written by the accused in his own handwriting (it is unsigned) and it is stated therein that he had caused the death of his wife. The chit is in Marathi and the English translation of the same as given by the Court Translator reads thus :-
“Shri Ganpatrao Anna, I have killed my killed my wife. You keep a note that I am the owner of the articles in the said room and tell that my wife had no connection whatsoever in respect of the said room (Your will receive my letter).
(a) . (a) (Thumb impression) Bhargav Salunkhe” (a) . (a)
(There is no thumb impression. The word ‘Thumb impression’ is written at this place in Marathi in the original.)
P.W. 2 immediately sent a message through his son to P.W. 3, uncle of the deceased. P.W. 2 in his examination-in-chief has further stated that the accused and the deceased were present in their tenanted portion at the relevant time. In cross-examination he stated thus :-
“In the night of 22-8-86, I did not go to the house of accused. However, there was electric light in the house of the accused in that night, and hence I say that the accused and his wife Kanta were present in their house in that night.”
The witness’s assertion in examination-in-chief that the accused and the deceased were present in the tenanted premises at the relevant time was shattered in cross-examination. The above statement in cross-examination also indicates that he only drew inference with regard to the presence of the accused in the tenanted premises from the fact that there was electric light in those premises and this led him to conclude that the deceased and the accused were present there. P.W. 2, after reading the chit (Ex. 54) and noticing that the deceased did not get up from the bed, sent a message through his son to P.W. 3, uncles of the deceased. P.W. 3 came to the house of the accused. He noticed that the deceased was lying in bed and did not get up. He called a doctor who examined her and declared her dead. The witness in his examination-in-chief has stated that the deceased has visited his house for the last time on August 21, 1986 and had conveyed to him that the accused had gone to Katar-knatav for official work. He further stated that the deceased has also told him that the accused had told her that she should go to her parents’ house whenever he was out of station. He further stated that the deceased returned to her house in the morning of August 22, 1986.
8. The evidence of P.W. 2 does not inspire confidence, inter alia, for the following reasons :-
(i) His statement that the accused was present in the house during the night intervening August 22, 1986 and August 23, 1986 is only inferential and, in fact, he has not seen the accused therein. He drew the inference that the accused was present in the house from the fact that light was burning in the tenanted premises in the possession of the accused during the night of August 22, 1986, and this led the witness to believe that the accused and the deceased were present in the premises.
(ii) The Chit, Ex. 54, allegedly written by the accused was read by P.W. 2 in the early hours of August 23, 1986. In the chit it is stated that the accused had killed his wife. After reading this chit, this witness keeps quite and does not tell anybody in the locality about the incident. Admittedly, near his house there is a big building called ‘Chal’ and several persons were residing therein. If it was a fact that the witness had read the chit and found truth therein by touching their body of the deceased, he would have informed the neighbours or at least conveyed to the uncle of the deceased that his niece was dead. The witness only sent a message through his son to P.W. 3 It is obscure on the file as to what was that message. The extraordinary behavior of this witness, who is the owner of the premises where the dead body was recovered, leads only to one inference that he has tried to conceal some material facts from the Court or he has tried to tow the line of the prosecution to assit it in securing conviction.
9. P.W. 3 did not know that the accused was present in the house during the night intervening August 22, and 23, 1986. He lodged the complaint on the basis of the information supplied to him by P.W. 2 and on that observed when he visited the spot of offence. P.W. 3 has made one candid admission in this evidence, namely, that the deceased had visited his house for the last time on August 21, 1986 and she had told him that the accused had gone to Katar-khatav for official work. The prosecution did not lead any evidence to show when the accused had returned to Umbraj. The prosecution could have examined an employee of the school where the accused was working who would have stated the nature of the work for which the accused was sent to Katar-khatav and when he was expected to return from the place. In the absence of this evidence, we are left guessing as to when the accused must have returned to Umbraj. The evidence of P.W. 3 does not throw any light whether the accused was present in the house on the fateful night.
10. Now we switch over to the chit, Ex. 54, allegedly found near the bed of the deceased. The prosecution allegedly obtained specimen handwriting and signatures of the accused. The chit and the specimen handwriting and signatures were sent to the Handwriting Expert. The Handwriting Expert, Jaising Sadashiv Landage, was examined as P.W. 9. The witness admitted that his office is under the control of Special Inspector General of Police. C.I.D., Crimes. In the course of cross-examination with regard to the reasoning given in Ex. 56, for coming to the conclusion that the disputed chit, Ex. 54, tallies with the specimen handwriting and signatures of the accused, Exs. 47, to 53, he admitted thus :-
“It is true that in my reason Exh. 56, I did not mention the measurement of the letters. It is true that in the reasons at Exh. 56, I did not specifically mention about pen presentation. It is true that in the reason Exh. 56, I made no reference to pen pause on the writing. All the documents which were examined by me were written by ball pen. Hence, there is no reference to shading in the reason at Exh. 56. It is true that pen presentation, pen pause had measurement, shading are important consideration for forming opinion. A ball pen writing does not produce shading and pen presentation. The witness is shown enlarge photographs Q1 and S1 to S7. It is true that the loop component of letter Shri in the disputed document Q1 is nearer to the staff than the loop component of the same letter in specimen documents S1 to S7. It is true that the letter (A) in the disputed document Q1 has a loop at the bottom, but except the small loop in S. 1, the rest of the documents S1 to S6 do not have any loop for that letter. It is true that in the specimen handwriting the word is used whereas in the disputed documents, the word is. It is true that the letter in Q1 has well pronounced sper, but that letter in specimen handwriting does not have that much pronounced sper. It is true that the letter written in disputed documents, is written in one pen operation, whereas that letter in specimen writing is in two pen operation. It is true that the letter of the word ‘Malak’ in question document has first curve component of the staff. Whereas in the specimen handwriting, that letter in the word ‘Malak’ has the two curve horizontal the staff, except S5. It is true that Matra stroke above the letter in the letter is written with retress in question document, but in the specimen handwriting, there is angular loop for the letter. It is true that in the specimen handwriting, the letter in the word (khoushi) is written without loop, but in the disputed document that letter has loop or eyelet. It is true that there are no head lines except on 3 to 4 words in the letter Exh. 54. However, there are head lines on all the words, the letters Exh. 47 to 53. It is not true that the manner of writing letter in specimen handwriting is entirelly different than the handwriting of disputed document. It is true that the word in the disputed document Exh. 54 is not very clear. However, in the specimen handwriting that word is clear. It is true that Rafar Stroke in the letter in the word Bhargav in the disputed document ends on the top of the word but that is not the position so far word in specimen hand writing is concerned. It is true that the letter and word Varade in the document Exh. 54 are not clear, but those letters are clear, the word written specimen handwriting. The thing mentioned above are natural variation and not points of dissimilarity. It is true that science of handwriting is a progressing science and it is not perfect yet.
The witness further admitted that the book “Suspect Documents” by Wilson R. Harrison is one of the standard authorities on the subject. A reading of the cross-examination of this witness discloses that there is marked dissimilarity in the general features of the disputed handwriting and the admitted handwriting. Wilson Harrison in his renowned book “Suspect Documents” at page 343 stated thus :-
“The rule is simple – whatever features two specimens of handwriting may have in common, they cannot be considered to be of common authorship if they display but a single consistent dissimilarity in any feature which is fundamental to the structure of the handwriting, and whose presence is not capable of reasonable explanation.
The cross-examination of P.W. 9 is suggestive that the dissimilarity in the specimen handwriting and the disputed handwriting is consistent.
11. Even otherwise, it is well settled that the expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of handwriting expert. The prosecution, to probablise the evidence of P.W. 2, introduced the writing, Ex. 54. To establish that it was in the handwriting of the accused, they got specimen hand-writing and signatures of the accused and got the expert opinion of P.W. 9. The writing, Ex. 54, does not appear to be a genuine document. A reading of this document indicates that beneath the writing there is stated to be a thumb impression of Bhargav Salunkhe but the writing contains no thumb impression. Bhargav Salunkhe is part of the name of the accused. It is not known why he had to put his thumb impression on the writing. It is also not known why he had to address this writing to the owner of the tenanted portion in his possession. Inference is deducible that the prosecution thought that at some convenient moment they would obtain the thumb impression of the accused on the chit Ex. 54. Perhaps they did not succeed in doing so. This document, coupled with the evidence of P.W. 2, does not even remotely suggest that the accused was involved in the crime. Even otherwise this chit is highly suspicious. It is doubtful if it is in the handwriting of the accused. The cross-examination of P.W. 9 in unmistakable terms suggests that there are consistent dissimilarities in the general features of the disputed writing, Ex. 54, and the admitted signature and handwritings, Exs. 47 to 53.
12. The Apex Court in the case of Magan Bihari Lal v. State of Punjab, , has held that it is unsafe to base the conviction solely on the expert opinion without substantial corroboration. In that case it was alleged that the handwriting on the Railway Receipt was of the same person who wrote the specimen handwriting. The appellant in that case was charged for forging a Railway Receipt on the strength of which some iron sheets were retired from the railway station. The Apex Court did not sustain the conviction on the basis of this evidence and held thus :- (Para 7)
“It is true that B. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt Ex.P.W. 10/A was that of the same person who wrote the specimen handwritings Ex. P.W. 27/37 to 27/57, that is the appellant, but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P., , that it is unsafe
to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad v. Md. Isa, , that expert evidence
of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, , where it was pointed out by this
Court that expert’s evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P., AIR 1967 SC 1326, and if uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of handwriting expert and before acting upon such evidence the Court must always try to see whether it is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the judgments of English and American Courts. Vide Gurney v. Longlands, (1822) 5B & Ald 330, and Matter of Alford Foster’s Will, 34 Mich 21. The Supreme Court of Michigan pointed out in the last mentioned case :
“Every one knows how very unsafe it is to rely upon any one’s opinion concerning the niceties of penmanship – Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil.” We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself form the basis for a conviction. We must, therefore, try to see whether, in the present case, there is, apart from the evidence of the handwriting expert B. Lal, any other evidence connecting the appellant with the offence.
13. The prosecution has also relied upon the recovery of gold ornaments, Articles 25 and 26, at the instance of the accused. The accused was in police custody since August 25, 1986. He is stated to have made a statement before the police on September 2, 1986, Memorandum of the statement was drawn in the presence of independent witnesses. It is at Ex. 22. It commenced at 7.00 a.m. and concluded at 7.15 a.m. as is evidenced by Ex. 22. The memorandum does not bear the signature of the accused or that of the P.S.I. before whom the statement was made. The memorandum of the alleged statement of the accused reads thus :-
“Panchanama dated 2-9-86.
I. Bhargav Kundalik Salunkhe, aged 27, Occ. teacher, r/o Varade, Tal. Karad. Now at Umbraj in custody.
Memorandum giving in writing that on 22-8-86 at about 12.00 in the night. My wife Sou Kantabai Bhargav Salunkhe opposed me to fall semen at the time of penetration and pushed me over her body. Hence enraged I kill her by pressing neck. By killing her at the time of going. I had taken golden bangles and golden bormal of my deceased wife. Thereafter, before appearing on 25-8-86 to police station these ornaments were given to brother Pralhad Kundalik Salunkhe. Let’s go, I shall find out that ornaments.
This memorandum is given. Place police station, Umbraj.”
Pursuant to this statement, the police took him to Varade and the accused got recovered the ornaments from his brother. The panchanama of recovery is marked as Ex. 22 and it is stated to have commenced at 7.15 a.m. and concluded at 8.30 a.m. It passes our comprehension as to how, when the memorandum of the statement of the accused commenced at 7.00 a.m. and concluded at 7.15 a.m., immediately thereafter the recovery panchanama was commenced. Admittedly, the recovery was effected from the residential house of the accused at his native village Varade. P.W. 2 has stated that Varade is about 5/6 kms. from Umbraj. The police accompanied by the accused cannot reach Varade at 7.15 a.m. The panchanama, Ex. 23, is witnessed by P.W. 1, Shivaji Tukaram Jadhav, and by Baban Jagannath Patil, who was not examined. P.W. 1 is the panch witness of most of the panchanamas. A perusal of the evidence of this witness indicates that he is a convenient witness. His evidence cannot be relied upon in the light of the indisputable facts which have emerged from the perusal of Ex. 2, memorandum of the statement of the accused and the recovery panchanama. As observed by us earlier, the memorandum of the statement of the accused was prepared between 7.00 a.m. and 7.15 a.m. and immediately thereafter the recovery panchanama was begun. The recovery panchanama is drawn after affecting recovery and not prior thereto. The reading of the panchanama suggests that the memorandum of the statement of the accused and the recovery panchanama were prepared at the same time. The other witness to the panchanama was not produced for reasons undisclosed. Apart from this, the accused was in custody since August 25, 1986 and it is not disclosed as to under what circumstances he volunteered to make the statement under Section 27 of the Evidence Act on September 2, 1986. The statement which led to the recovery and the recovery itself are highly doubtful and cannot be relied upon.
14. The prosecution has also led evidence about the motive of the crime. It is alleged that the accused had doubt about the fidelity of his deceased wife. The prosecution, in this context, relied upon the evidence of P.W. 2 and P.W. 3. P.W. 2 stated that the deceased had complained to him that the accused suspected her character. To the same effect is the evidence of P.W. 3. Curiously enough, this important fact does not find a place in the F.I.R. The F.I.R. is a detailed document. In the F.I.R. it is stated that P.W. 3 learned from his neice and the owner of the tenated premises in the occupation of the deceased and the accused that there were quarrels between the accused and the deceased over her less salary, her taking extra periods in the school and her going to the house of other lady teachers. This so-called motive appears to be an afterthought.
15. There is no other evidence for sustaining the conviction under Section 201 of the I.P.C. except the recovery of the gold ornaments at the instance of the accused. We have already observed that the recovery is highly doubtful.
16. The prosecution, in order to sustain the conviction under Section 498-A of the I.P.C., has solely relied upon the evidence of P.W. 3. P.W. 3 stated that the accused had asked him for money for purchasing a Luna vehicle and he gave Rs. 3,000/- in cash to the deceased for meeting the demand of the accused. The accused thereafter purchased a Luna vehicle. P.W. 3. in his deposition at the trial stated thus :-
“The accused had asked Kantabai to bring money from her father, as he wanted to purchase Luna vehicle. The accused had also asked me for money for purchasing Luna vehicle. I handed over cash of Rs. 3000/- to Kantabai towards the demand of the accused. The accused thereafter purchased Luna vehicle.
Section 498A of the I.P.C. was introduced in the Code by the Criminal Law (Amendment) Act, 1983. By the same Act, Section 113-A has been added to the Indian Evidence Act to raise a presumption regarding abetment of the suicide by a married woman. Section 498A envisages that where a husband or his relative subjects the wife to cruelty, he or that relative shall be punished with imprisonment for a term which may extend to 3 years and fine. Explanation (b) to Section 498A says that ‘cruelty’ means harassment of the woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security, is on account of failure by her or any person related to her to meet such demand. A perusal of this provision indicates that it is not every harassment or every type of cruelty that would attract Section 498A. The complainant has conclusively to establish that the beating and harassment in question was with a view to force her to commit suicide or to fulfill the illegal demand of dowry. In the instant case, it is not the prosecution case that the deceased was harassed by the accused for reason that her relatives failed to meet this unlawful demand of money. There is no proof that the accused had demanded money from the parents of the deceased and because of the failure to meet his demands, he harassed the deceased. The evidence of P.W. 3 does not receive any corroboration. Even this fact does not find a mention in the F.I.R. The conviction under Section 498A of the I.P.C. cannot be sustained.
17. The inferences drawn by the learned trial Judge, reproduced supra, are not deducible from the evidence present on record. These are not inferences but assumptions. Conviction cannot be based on assumptions. The circumstantial evidence brought on record, reproduced and discussed above, is not consistent with the guilt of the accused and does not exclude every reasonable hypothesis, consistent with his innocence.
18. The prosecution having failed to substantiate the charges, it is unnecessary to deal with the defence of the accused regarding his plea of his insanity and his defence that the gold ornaments were given by the deceased to his father.
19. For the reasons stated above, the appeal succeeds and is allowed. The conviction and sentences recorded against the appellant-accused on all the charges are set aside. The appellant-accused be set at liberty forthwith unless required in connection with any other case.
20. Appeal allowed.