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C vs Ig on 18 June, 2010

Bombay High Court C vs Ig on 18 June, 2010Bench: Shrihari P. Davare

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD

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CRIMINAL APPEAL NO. 128 OF 1998

Jaihind s/o Sitaram Khale,

age 24 years, occ. Agril.,

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r/o Karti (Bk.), Tq. Omerga,

District Osmanabad …Appellant (Accused no.1)

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VERSUS

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The State of Maharashtra, …Respondent …..

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Shri M.P.Tripathi, advocate for appellant Smt. B.R.Khekale, A.P.P. for respondent …..

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CORAM : SHRIHARI P.DAVARE, J. ba

DATE OF RESERVING

THE JUDGMENT : 9.6.2010 DATE OF PRONOUNCING

THE JUDGMENT : 18.6.2010 om

J U D G M E N T :-

1 The challenge in this appeal is to the conviction and sentence B

inflicted upon the appellant by judgment and order dated 2.4.1998, rendered by learned Additional Sessions Judge, Osmanabad, in Sessions Case No. 69 of 1995, thereby convicting the appellant/accused no.1 herein under Section 498A of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for six months and to pay fine of Rs.500/- with default condition for non-payment of fine amount to suffer further ::: Downloaded on – 09/06/2013 16:02:02 ::: 2

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Rigorous Imprisonment for one month.

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2 At this juncture, it is to be noted that the appellant/accused no. 1-Jaihind Sitaram Khale, and accused no.2-Sitaram Maruti Khale and C

accused no.3-Padmawati Sitaram Khale faced the trial under Sessions Case No. 69 of 1995 for the offences punishable under Sections 498A, 304B r/w 34 of the Indian Penal Code and the appellant/accused no.1 as h

well as accused nos. 2 and 3 were not found guilty for the offence ig

punishable under Sections 304B r/w 34 of the Indian Penal Code; as well as accused nos. 2 and 3 were not found guilty for the offence punishable H

under Section 498A r/w 34 of the Indian Penal Code, and therefore, accused nos. 2 and 3 were acquitted of the said offence, but the y

appellant/accused no.1 was found guilty for the offence punishable under ba

Section 498A of the Indian Penal Code and was convicted and sentenced thereunder as afore said and the said conviction and sentence has been assailed by accused no.1 i.e. appellant in the present appeal. om

3 The factual matrix of the prosecution case, can be summarized B

as under :-

The appellant/accused no.1 Jaihind is the son of acquitted accused nos. 2 and 3 and appellant herein married with deceased Sunita on 14.5.1993 and after marriage Sunita went to her matrimonial home i.e. the house of the accused for cohabitation. Initially, she was treated well for ::: Downloaded on – 09/06/2013 16:02:02 ::: 3

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the period of two months. However, it is alleged that thereafter unlawful demand of amount of Rs. 5,000/-, allegedly unpaid balance amount of ou

dowry, was made to her by the accused persons, along with one tola gold, to be brought by her from her parental house, and she was subjected to C

cruelty due to non-fulfillment of the said demand. It is also alleged that PW3 Prakash Gadekar i.e. victim’s maternal uncle and PW4 Mohan Jagtap ie. cousin brother of victim Sunita had visited the matrimonial home h

of deceased Sunita on different times and at that time PW3 Prakash was ig

informed to bring Rs.5,000/- and one tola gold, otherwise Sunita would not be sent for cohabitation purpose and PW4 Mohan visited the house of H

Sunita, she informed him that accused demanded Rs.5,000/- and one tola gold and she was subjected to cruelty on that count. It is also alleged that y

PW3 Prakash went to the house of Sunita to bring her for Nagpanchami ba

festival and at that time also accused asked for Rs.5,000/- and one tola gold.

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4 It is further the case of prosecution that PW3 Prakash brought Sunita to the house of her father, but her father-in-law took her back to B

matrimonial home. After lapse of about 8 days, father-in-law of victim Sunita came to the house of the complainant i.e. father of Sunita and informed that Sunita was sick and she was required to be taken to the hospital. Thereupon the complainant i.e. father of Sunita stated that he had no money, and therefore, her father-in-law went back and on the next day brought Sunita to the house of the complainant. Thereafter when ::: Downloaded on – 09/06/2013 16:02:02 ::: 4

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Sunita was residing with the complainant, she informed him about the assault to her at the hands of the appellant herein and also threats to her ou

that she would not be permitted to cohabit with the appellant unless demand is complied with. It is also alleged that Sunita was suffering from C

attacks of epilepsy, and therefore, the complainant took her to a mantrik at village Kaij in District Beed and while they were returning from Kaij, Sunita died at the S.T. stand Kaij, and hence, the complainant brought h

dead body of Sunita in the jeep to his house, and thereafter lodged the ig

complaint (Exh.43) with police station Bhada. H

5 It is also the case of the prosecution that PW5 PSI Abdul Hamid Khan Pathan was attached to Lohara police station on 1.9.1993 y

and he received the complaint Exh. 43 after registering the offence under ba

Zero number from Bhada police station, which was registered at C.R. No. 44 of 1993. PW5 PSI Abdul Hamid Khan Pathan also received the inquest panchanama Exh. 35 and provisional certificate of death and statements om

recorded. Accordingly he prepared the spot panchanama Exh. 36 and recorded the statements of witnesses and arrested the accused. Thereafter he sent Head Constable Shirsath to prepare panchanama of B

spot at Kaij and to record the statements of witnesses and said panchanama is at Exh. 37.

6 It is also the case of prosecution that PW1 Dr. Santosh Vedpathak was attached to the Primary Health Centre at Belkund, Taluka ::: Downloaded on – 09/06/2013 16:02:02 ::: 5

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Ausa on 1.9.1993 and he received the dead body of deceased Sunita with report of police. Accordingly, he performed autopsy and prepared the ou

postmortem report, which is produced at Exh. 39. He preserved the viscera for examination and same was sent to the office of Chemical C

Analyser and after receipt of report (Exh.40) from the Chemical Analyser and on going through the postmortem report, he gave the cause of death of Sunita as death due to epilepsy.

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It is further the case of prosecution that as it transpired during investigation that Sunita was subjected to cruelty by the accused persons, H

statements of several witnesses were recorded during the course of investigation. Accordingly, after completion of investigation, PW5 PSI y

Abdul Hamid Khan Pathan forwarded the chargesheet to the court of ba

Judicial Magistrate, First Class, Omerga and since the offence was exclusively triable by Court of Sessions, the said case was committed to the court of Sessions at Osmanabad.

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8 Learned Additional Sessions Judge, Osmanabad framed the B

charge (Exh.29) against the appellant and acquitted accused persons for the offences punishable under Sections 498A, 304B r/w 34 of the Indian Penal Code. The appellant/accused no.1 and acquitted accused nos. 2 and 3 faced the trial for the said charges under Sessions Case No. 69 of 1995 and to substantiate the said charges, the prosecution examined 5 witnesses as mentioned below :-

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(1) PW1 Dr. Santosh Dattatraya Vedpathak, who conducted ou

postmortem on the dead body of deceased Sunita. (2) PW2 Digambar Kundlik Jagtap, complainant, father of victim C

Sunita

(3) PW3 Prakash Gyanba Gadekar, maternal uncle of victim Sunita

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(4) PW4 Mohan Bhimrao Jagtap, cousin brother of deceased ig

Sunita

(5) PW5 PSI Abdul Hamid Khan Pathan, investigating officer H

9 The defence of the accused persons was of total denial and y

according to their defence, the death of Sunita was natural death and she ba

has not committed suicide, and therefore, according to the defence, they have not committed any offence as alleged and they have been om

implicated in this case falsely, and therefore, they claimed to be innocent. 10 After scrutinizing and alalysing the evidence adduced and B

produced by the prosecution on record, learned Additional Sessions Judge, Osmanabad convicted the appellant/accused no.1 under Section 498A of the Indian Penal Code and sentenced him to suffer Rigorous Imprisonment for six months and to pay fine of Rs. 500/- in default to suffer further Rigorous Imprisonment for one month; whereas the learned Trial Judge acquitted accused nos. 2 and 3 of the said offence. Learned ::: Downloaded on – 09/06/2013 16:02:02 ::: 7

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Trial Judge acquitted the appellant nos. 1 to 3 of the offence punishable under Sections 304B r/w 34 of the Indian Penal Code. However, since the ou

appellant/accused no.1 was convicted and sentenced as afore said under Section 498A of the Indian Penal Code and since the appellant/accused C

no.1 was aggrieved and dissatisfied by the said order of conviction and sentence, he filed the present appeal challenging the same and requesting for quashment thereof.

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To enable to advert to the submissions advanced by learned counsel for the parties, it is necessary to deal with the material evidence H

adduced/produced by the prosecution on record. In the said context, coming to the deposition of the complainant PW2 Digambar Jagtap, y

wherein he stated that Sunita was his daughter, who married with the ba

appellant Jaihind on 14.5.1993, but Sunita expired on 31.8.1993 i.e. hardly within the span of 3½ years of their marriage. He also stated that after the marriage, Sunita went to her matrimonial home and she was treated om

well there for initial period of two months. However, when PW3 Prakash i.e. maternal uncle of Sunita went to Sunita’s house, he was informed to bring Rs. 5,000/- and one tola gold by the accused persons, otherwise B

they would not allow Sunita for cohabitation. It is also alleged that accused demanded the said amount since they received lesser dowry in the marriage.

12 It is further alleged by PW2 Digamar that when his nephew, ::: Downloaded on – 09/06/2013 16:02:02 ::: 8

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namely PW4 Mohan went to the house of accused, Sunita informed him that accused demanded Rs. 5,000/- and one tola gold and she was ou

subjected to cruelty by the accused. PW2 Digambar stated that both the said incidents were narrated to him by PW3 Prakash and PW4 Mohan C

respectively.

13 Thereafter PW2 Digambar stated that PW2 Prakash brought h

Sunita to the house of Digambar, and at that time she informed PW2 ig

Digambar and his wife that accused demanded Rs. 5,000/- and one tola gold and she was subjected to cruelty by the accused. He also stated that H

Sunita informed him that she was not provided food and accused no.1 used to assault her and accused nos. 2 and 3 used to illtreat her. She y

further stated to PW2 Digambar that accused would not allow Sunita to ba

cohabit, unless their demands are complied with. He also deposed that at his residence, he found Sunita sustained attacks of epilepsy. Hence, she was taken to a mantrik, but he was out of station, and therefore, they om

started returning to his house, however, during said return journey, his daughter Sunita expired at S.T. stand Kaij. Hence, he brought her dead B

body in a jeep to his house and then lodged the report to the police station Bhada, which is marked at Exh. 43. Thereafter the dead body of Sunita was taken for autopsy at the Government Hospital i.e. Primary Health Centre, Belkund.

14 During cross-examination, PW2 Digambar stated that the ::: Downloaded on – 09/06/2013 16:02:02 ::: 9

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word, “Maheri” has been scored under his direction, as same was written inadvertently in the complaint Exh. 43. As regards the delay in lodging the ou

first information report, PW2 Digambar stated that he had been to the police station in the evening, but since nobody was present there, he C

lodged the report on the next day morning. He denied that Sunita was suffering from epilepsy prior to her marriage. Suggestion was given to him that accused treated Sunita well, but same was denied by him. He h

also stated that he does not know whether accused came for her funeral. ig

15 That takes me to the evidence of PW3 Prakash Gadekar, H

maternal uncle of victim, who deposed that Sunita was his niece and he had been to her matrimonial house to bring her for Nagpanchami festival. y

At that time, all the accused asked him that they would not send Sunita ba

unless their demand for Rs.5,000/- and one tola gold was fulfilled by them. He also stated that while coming to village Kawali, Sunita informed him that she has been subjected to cruelty by the accused because of om

non-compliance of said demand and she has been subjected to cruelty of unbearable nature. She further stated that accused used to tell her that B

she was of black mouth and she was not auspicious. Thereafter the father-in-law of Sunita took her back to her matrimonial home and PW3 Prakash again went to the house of accused while retuning from other village and found that Sunita was sick. Then her father-in-law demanded money, but PW3 Prakash stated that he did not have money and returned to village. Then Sunita came to his house and she was sick and ::: Downloaded on – 09/06/2013 16:02:02 ::: 10

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suffering from epilepsy.

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16 During cross-examination, PW3 Prakash denied that he took Sunita to his village while returning from other village. A contradiction was C

brought in the cross-examination in that respect. He stated that he did not state before police in respect of bringing Sunita while returning from other village. He also denied that Sunita was suffering from epilepsy prior to her h

marriage. He further denied that accused treated her medically. An ig

omission was brought in the cross-examination of PW3 Prakash that accused told him to pay Rs. 5,000/- and one tola gold and then to take H

Sunita to her parents’ house, amounting to improvement in his deposition and omission in his police statement, and the said omission is fatal and y

goes to the root of the matter in respect of alleged demand of Rs. 5,000/- ba

and one tola gold by the accused persons from PW3 Prakash. Another omission was brought on record in the cross-examination in respect of bringing Sunita to village Kawali by her father-in-law, but apparently same om

is a minor omission.

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17 Coming to the deposition of PW4 Mohan Jagtap, wherein he stated that Sunita was his cousin and he had been to her house. He also stated that Sunita told him that all the accused were demanding Rs. 5,000/- and one tola gold and Sunita requested him to inform the said aspect to her father. Accordingly, he stated that he informed the said fact to the father of Sunita. He further stated that accused told Sunita that she ::: Downloaded on – 09/06/2013 16:02:02 ::: 11

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would not be allowed to cohabit unless said demands are complied with. He further stated that she was subjected to cruelty on that count. Then he ou

persuaded Sunita. He further deposed that Sunita was not provided food, and therefore, became weak. An omission was bought in the cross- C

examination of PW4 Mohan in respect of not providing food to Sunita and thereby she became weak and same also is a material omission. He also stated in the cross-examination that he had been to the house of Sunita h

and she narrated him about the said demands and cruelty. Suggestion ig

was given to him that they decided to lodge the complaint against the accused, as Sunita died at Kaij, to avoid the complications, but same was H

denied by him. He further stated that there was no discussion before lodging the complaint.

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18 Turning to the testimony of PW1 Dr. Santosh Vedpathak, who conducted the postmortem, he stated that on 1.9.1993 he was posted as Medical Officer at Primary Health Centre at Belkund, Taluka Ausa and on om

1.9.1993 he received dead body of Sunita Jaihind Rawale with report of police. Accordingly, he performed autopsy and prepared postmortem B

report, which is produced at Exh. 39. He reserved the opinion regarding death of Sunita till the chemical analysis report was received, since she had preserved viscera. Accordingly, he stated that he received the report from the Chemical Analyser at Exh. 40 and on going through the said report, he opined the cause of death of Sunita as, “Sunita died due to epilepsy ” .

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19 On the background of the afore said evidence, adduced and ou

produced by the prosecution on record, learned counsel for the appellant canvassed that the evidence led by the prosecution is not legal evidence C

and the testimonies of PW3 Prakash and PW4 Mohan are the testimonies amounting to hearsay evidence. He further submitted that victim Sunita died in the custody of the complainant and the appellant cannot be held h

responsible therefor, nor any cruelty/illtreatment to deceased Sunita can ig

be attributed towards the appellant. Moreover, it is also submitted by learned counsel for the appellant that there is one day delay in lodging the H

first information report, and the explanation given by the prosecution therefor that when the complainant went to the police station, no police y

were present there, is not digestible. It is also submitted by learned ba

counsel for the appellant that the contents of the first information report were dictated to the complainant by another person and the first information report is not the complainant’s own statement. om

20 As regards alleged illtreatment by the appellant to deceased B

Sunita, learned counsel for the appellant urged that the allegations regarding not providing food to Sunita are baseless, since the complainant himself stated in his deposition that Sunita was having good health. Moreover, it is also submitted that no specific instances of cruelty were cited by the prosecution witnesses to show the type of cruelty, physical or mental, that was alleged to have been extended to the victim Sunita, and ::: Downloaded on – 09/06/2013 16:02:02 ::: 13

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therefore, it is canvassed that there is no legal evidence in respect of alleged cruelty to which victim Sunita was allegedly subjected to by the ou

appellant herein.

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21 According to the learned counsel for the appellant, all witnesses are interested witnesses and the prosecution failed to adduce/produce the evidence in respect of cruelty sustained by victim h

Sunita at the hands of appellant and even no neibhbourers were examined ig

as witnesses in that respect. It is also canvassed that there are no specific allegations, nor there is direct evidence of cruelty adduced/produced H

against the appellant by the prosecution, and hence, there is no reliable legal evidence regarding the alleged cruelty on record. y

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22 Learned counsel for the appellant also canvassed that the appellant was admittedly acquitted from the charge under Section 304B of the Indian Penal Code. The appellant was tried for the offences om

punishable under Sections 304B and 498A of the Indian Penal Code for allegedly subjecting his wife i.e. Sunita to cruelty and causing her dowry B

death. However, admittedly the Trial Court acquitted the appellant of the charge under Section 304B of the Indian Penal Code for want of acceptable evidence, but convicted the appellant for the offence punishable under Section 498A of the Indian Penal Code and his acquittal for the offence punishable under Section 304B of the Indian Penal Code was not reportedly further challenged, but his conviction for the offence ::: Downloaded on – 09/06/2013 16:02:02 ::: 14

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punishable under Section 498A of the Indian Penal Code has been challenged by way of present appeal. Hence, it is the contention of the ou

learned counsel for the appellant that since the prosecution evidence did not constitute offence of cruelty under Section 304B of the Indian Penal C

Code against the appellant, same set of circumstances also do not constitute offence of cruelty under Section 498A of the Indian Penal Code against the appellant/accused no.1. Learned counsel for the appellant h

further contended that the findings recorded by the Trial Court were not ig

based on legal evidence. It is also canvassed that the concept of cruelty and its effect varies from individual to individual and depends upon social H

and economic status to which the parties belong. y

23 Learned counsel for the appellant relied upon the observations ba

made in the case of Gananath Pattnaik vs State of Orissa, reported at (2002) 2 SC 619, which are as follows :- om

” ………… …………. ……………. ………….. 10 ……….. ……………… B

Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304-B and such statement was admissible under clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section ::: Downloaded on – 09/06/2013 16:02:02 ::: 15

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498-A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an ou

exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement C

which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be h

relied upon for finding the guilt of the accused. …………

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………… …………… ………… ……….. 14 It follows, therefore, that there was no legal H

evidence tendered in the case which could be made the basis for returning a finding with respect to the alleged cruelty of the accused with the deceased. In the absence of any legal evidence produced in the case, we y

are of the opinion that the prosecution has failed to prove, beyond doubt, that the appellant had committed ba

the offence under Section 498-A of the Indian Penal Code and find that it is a fit case where he is entitled to be given the benefit of doubt.

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………… ………… …………… ………… ……….. ” 24 Learned counsel for the appellant also relied upon the B

observations made in the case of Deepak s/o Bhimrao Bharne and ors. Vs State of Maharashtra, reported at 2004 (2) Mh.L.J. 987, which are as follows :-

“………. ………… …………… ………… ………… 14 There is no doubt that; the concept of cruelty ::: Downloaded on – 09/06/2013 16:02:02 ::: 16

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and its effect varies from individual to individual and it also depends on the social and economic status to which ou

the parties belong. It is also true that cruelty may not be physical and even mental torture and abnormal behaviour may amount to cruelty, in the instant case, the father of deceased has spoken of complaint; of beating C

by Sunita. However, as observed above, his evidence is found to be exaggerating and contradictory to the seizure memo. PW5 Baby speaks bare minimum on the point of alleged cruelty. Moreover, she is a married sister of h

deceased Sunita and is not expected to possess knowledge in respect of alleged harassment to Sunita. ig

On the point of cruelty, evidence of PW6 Vimal can also not be accepted. In answer to a question, she has H

deposed in cross-examination that Sunita had gone to Ghatanji prior to 2-3 days of the incident. However, according to PW 4 Narayan, father of the deceased, the incident occurred on the day on which Sunita returned y

from Ghatanji place of her husband. Thus, in absence of direct oral or documentary evidence, the prosecution ba

case cannot be accepted on the basis of hear-say evidence.

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……….. ………… …………… ………… ……….. 17 It shall not be necessary to dilate upon this question in view of the fact that the very proof of cruelty B

either by primary or direct evidence has come forward in this case. In view of the discussion that I have made about type and quality of evidence that has come on record, I have no hesitation to arrive at a conclusion that the evidence as to ill-treatment or cruelty brought by the prosecution is not based on direct evidence. The nature of evidence is hearsay. It shall be unsafe to rely upon such evidence to base and uphold the conviction. There is absence of proof of cruelty due to dowry demand. ::: Downloaded on – 09/06/2013 16:02:02 ::: 17

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………… ………… …………… ………… ………… ou

19 In view of what is stated above, prosecution has failed to prove that the deceased Sunita was subjected to cruelty on account of demand of dowry and C

the accused/appellant abetted the commission of suicide.

……….. ………… …………… ………… ……….. ” h

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Learned Additional Public Prosecution Smt. B.R.Khekale for the respondent countered the argument advanced by the learned counsel H

for the appellant vehemently and submitted that Sunita married with the appellant on 14.5.1993 and her death took place within a span of about y

3½ months i.e. on 31.8.1993, which itself indicates the gravity of illtreatment and harassment, to which deceased Sunita was subjected to. ba

As regards the alleged demand, as per the first information report, the complainant stated that Sunita expired on 31.8.1993 at about 2.00 p.m. om

and the first information report came to be lodged on the next day i.e. on 1.9.1993 at 8.00 p.m. and considering the mental condition of the complainant, who is father of victim Sunita, after death of his daughter at B

S.T. stand Kaij, it is submitted that there is apparently no delay in lodging the first information report. Besides that, it is canvassed that the complainant has given explanation in his deposition in respect of the said delay that he had been to the concerned police station to lodge the first information report on the same day i.e on 31.8.1993, but nobody was present there to take his complaint. It is further submitted that even if it is ::: Downloaded on – 09/06/2013 16:02:02 ::: 18

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considered that there is delay of one day in lodging the first information report, same is not fatal to the case of prosecution. ou

26 Learned Additional Public Prosecutor further submitted that there are no material contradictions/omissions in the testimonies of C

prosecution witnesses to discard their depositions and the prosecution witnesses have withstood to the cross-examination and categorically stated that victim Sunita was subjected to the cruelty by the appellant. h

Learned Additional Public Prosecutor further stated that PW3 Prakash ig

and PW4 Mohan had personally visited the house of victim Sunita and witnessed the illtreatment sustained by Sunita at her matrimonial home. H

Accordingly, learned Additional Public Prosecutor submitted that the prosecution has proved the charge under Section 498A of the Indian Penal y

Code beyond reasonable doubt and conviction and sentence inflicted upon ba

the appellant thereunder is appropriate and proper and no interference therein is warranted in the present appeal, and hence same is dismissed. 27 With the assistance of learned counsel for the appellant and om

the learned Additional Public Prosecutor for the respondent, I have perused the impugned judgment dated 2.4.1998 convicting and sentencing B

the appellant for the offence punishable under Section 498A of the Indian Penal Code and also scrutinized the oral and documentary evidence on record. Considering the submissions advanced by the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent anxiously, I am inclined to accept the submissions advanced by the learned counsel for the appellant, since “cruelty” as defined under ::: Downloaded on – 09/06/2013 16:02:02 ::: 19

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Section 498A of the Indian Penal Code, is mentioned below :- ou

” Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which C

may extend to three years and shall also be liable to fine. Explanation :- For the purpose of this section, “cruelty” means :-

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(a) any willful conduct which is of such a nature as is ig

likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether H

mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person y

related to her to meet any unlawful demand for any property or valuable security or is on account of failure by ba

her or any person related to her to meet such demand. ” om

28 Keeping in mind the definition of Section 498A of the Indian Penal Code and explanation thereto and applying the parameters thereof to the evidence on record i.e. the testimonies of PW2 complainant B

Digambar Jagtap, PW3 Prakash Gadekar, maternal uncle of deceased Sunita, and PW4 Mohan Jagtap, cousin brother of victim Sunita, it does not appear that victim Sunita was subjected to cruelty by the appellant amounting to willful conduct of such nature as was likely to drive Sunita to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of deceased Sunita, as well as it does not ::: Downloaded on – 09/06/2013 16:02:02 ::: 20

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appear that harassment allegedly caused to Sunita by the appellant was with a view to coercing her or any person related to her to meet any ou

unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. C

Moreover, the afore said witnesses have made general and omnibus allegations in respect of harassment and illtreatment given to deceased Sunita by the accused persons, but there are no specific instances of h

cruelty sustained by deceased Sunita at the hands of appellant narrated ig

by the said witnesses, which comes within the four corners of the definition of cruelty under Section 498A of the Indian Penal Code, as referred in H

afore said both the Explanations thereunder. Besides that, the prosecution has not examined any independent witness nor even y

neighbourer to substantiate the allegations in respect of cruelty at the ba

hands of appellant to deceased Sunita and no explanation has been given in that respect.

29 Apart from that the concept of cruelty and its effect varies from om

individual to individual and depends upon social and economic status to which the parties belong and reliance can be very well placed on the B

observations made by Hon’ble Supreme Court in the case of Gananath Pattnaik (cited supra). Moreover, it is also material to note that since the prosecution evidence did not constitute the offence of cruelty under Section 304B of the Indian Penal Code against the appellant, as he is acquitted thereunder, it is under suspicion whether same set of circumstances would

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constitute offence of cruelty under Section 498A of the Indian Penal Code against the appellant.

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30 In the circumstances, it is amply clear that there is no legal C

evidence to connect the appellant with the alleged crime under Section 498A of the Indian Penal Code and the appellant is entitled for the benefit of doubt, and hence, the conviction and sentence, awarded to the h

appellant by the learned Trial Judge, shall not sustain and same deserves ig

to be quashed and set aside by allowing the present appeal. H

31 In the result, present appeal is allowed and the conviction and sentence inflicted upon the appellant under Section 498A of the Indian y

Penal Code by way of judgment and order rendered by learned Additional ba

Sessions Judge, Osmanabad in Sessions Case No. 69 of 1995, dated 2.4.1998 stands quashed and set aside. The appellant/accused is acquitted of the offence with which he was charged and convicted. Fine, if om

any paid by the appellant, be refunded to him. The appellant is on bail. His bail bond shall stand cancelled.

B

(SHRIHARI P. DAVARE),

JUDGE.

dbm/cra128.98

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