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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.548 OF 2004
Dinkar s/o Dnyandeo Parande,
Aged about 43 years, Labourer,
R/o Pimpalkhuta, Tq. Mangrulpir,
District Washim. ……. APPELLANT
…V E R S U S…
The State of Maharashtra
through PSO Police Station Mangrulpir,
District Washim. ……. RESPONDENT
——————————————————————————————-
Shri Ashish Girdekar, Advocate holding for Shri A.P.
Tathod, Advocate for Appellant.
Shri V.P. Gangane, APP for Respondent-State.
——————————————————————————————-
CORAM: ROHIT B. DEO, J.
DATE: th
25 JANUARY 2018.
ORAL JUDGMENT
1] The appellant seeks to assail the judgment and order
dated 29.07.2004 rendered by the learned Ad-hoc Additional
Sessions Judge, Washim in Sessions Trial 130/2002, by and under
which, the appellant is convicted for offence punishable under
section 498-A of the Indian Penal Code (‘IPC’ for short) and is
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sentenced to suffer rigorous imprisonment for one year and to
payment of fine of Rs.500/- and is further convicted for offence
punishable under section 306 of the IPC and is sentenced to suffer
rigorous imprisonment for five years and to payment of fine of
Rs.1500/-. The appellant faced trial along with his mother
Smt. Lilabai Parande, who is acquitted and his father Dnyandeo
Parande who is convicted and sentenced to suffer imprisonment
till rising of the court.
2] Heard Shri Ashish Girdekar, the learned Counsel for
the appellant and Shri V.P. Gangane, the learned Additional
Public Prosecutor for the respondent-State.
3] The genesis of the prosecution lies in the oral report
dated 01.11.2002 lodged by Prabhakar Ihare the brother of the
deceased (P.W.1) the gist of which is thus:
The marriage of the deceased Babibai was solemnized
with the accused Dinkar 17 to 18 years prior to her unfortunate
death. Babibai and accused are blessed with a son from the
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wedlock. Babibai was treated well by the accused and his parents
till the birth of the son. Thereafter, the accused and his parents
started harassing Babibai for trivial reasons. A written consent was
obtained from Babibai for the second marriage of the accused.
The accused married one Asha during the subsistence of marriage
with Babibai, ten years prior to the incident.
Babibai used to narrate to her family that she was
harassed. In view of the harassment, Babibai and her sons started
residing separately. The accused transferred two acres of
agricultural land in the name of Babibai’s son Rameshwar.
However, the accused continued to cultivate the field and to reap
the benefits thereof. Babibai was demanding the proceeds from
the cultivation, for her maintenance. The accused refused to do so
and used to abuse and taunt Babibai, she was beaten and
harassed.
On 27.10.2002 the informant received a telephonic
call conveying that Babibai was missing from home. He came to
Pimpalkhuta, searched for her sister in vain and after halting for
the night at Pimpalkhuta, he came to Mangrulpir on 20.10.2002.
At Mangrulpir, he came to know that Babibai died due to
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drowning in the well in her village and went to Pimpalkhuta.
The police formalities of recording of the panchnama were on
going. The informant lodged report that his sister committed
suicide due to the harassment suffered at the hands of the
accused.
4] On the basis of the report, offence punishable under
section 498-A, 306 read with section 34 of IPC was registered,
investigation ensued and upon completion thereof charge-sheet
was submitted in the court of Judicial Magistrate First Class,
Mangrulpir who committed the proceedings to the Sessions Court.
The learned Sessions Judge framed charge (Exh.13) for offence
punishable under section 498-A, 306 read with section 34 of the
IPC. The accused pleaded not guilty and claimed to be tried.
The defence is of total denial.
5] I have given my anxious consideration to the evidence
on record, the submissions of Shri Girdekar, the learned counsel
for the accused and Shri Gangane, the learned Additional Public
Prosecutor for the respondent-State and the reasons recorded by
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the learned Sessions Judge, and having done so, I am not
persuaded to hold that the prosecution has proved the offence
beyond reasonable doubt.
6] Before I proceed to discuss the evidence on cruelty, it
is with some concern that I must record that the learned Sessions
Judge has dismissed the submission that the prosecution did not
prove that the possibility of accidental death is excluded, with
disdain. The approach and appreciation of evidence by the learned
Sessions Judge is not entirely satisfactory and the finding that
accidental death is not a real possibility is in the realm of surmises
and conjunctures. The spot panchnama reveals that when the
body of Babibai was taken out from the well, along with body a
rope and vessel ordinarily used for drawing water were also
recovered. This significant aspect has not been considered much
less appreciated by the learned Sessions Judge. The spot
panchnama does not reveal that the well was protected by a
parapet wall. The possibility of accidental death could not have
been brushed aside by the learned Sessions Judge in a perfunctory
manner. I am of the considered opinion, that the prosecution
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failed to establish that the death was the suicidal and not
accidental. It is trite law that the benefit of any alternate
hypothesis which is reasonably discernible from record must
necessarily be given to the accused.
7] Notwithstanding the finding recorded by me that
accidental death is a real possibility, and arguendo, even if the
death is assumed to be suicidal, I have no hesitation in recording a
finding that the prosecution has not proved cruelty within the
meaning of explanation (a) or explanation (b) of section 498-A of
the IPC and it is axiomatic that in the absence of such proof, the
accused could not have been convicted either under section 498-A
or 306 of the IPC.
8] Section 498-A of the IPC is the only section in chapter
XX-A introduced in the Indian Penal Code by the Criminal
Amendment Act, 1983. Section 498-A reads thus:
498-A. Husband or relative of husband of a
woman subjecting her to cruelty.– Whoever, being
the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with
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Explanation.– For the purpose of this section,
“cruelty” means–
(a) any wilful conduct which is of such a nature
as is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health
(whether 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
related to her to meet any 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.
9] The cruelty which is envisaged under section 498-A of
IPC may not be cruelty contemplated by other statutory
provisions. Conduct which may constitute matrimonial cruelty or
offence may not necessarily constitute cruelty within the meaning
of explanation (a) or (b) of section 498-A of IPC. Explanation (b)
is concededly not attracted since it is not even the case of the
prosecution that Babibai was subjected to ill-treatment or
harassment in order to coerce her or her family to fulfill any
illegal demand. In order to demonstrate that the conduct of the
accused constitute cruelty within the meaning of explanation (a)
the prosecution was obligated to prove (i) the conduct was wilful
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(ii) the wilful conduct was of such a nature as was likely to drive
Babibai to commit suicide or (iii) the wilful conduct was of such a
nature as is likely to cause grave injury or danger to life, limb or
health (whether mental or physical) of Babibai.
10] It would be apposite to refer to the following
observations of the Apex Court in Manju Ram Kalita v. State of
Assam reported in 2009 (2) SLJ SC 1036 and in particular on the
observations of the Apex Court in paragraph 19, 20, 21 and 22,
which read thus:
19. In Smt. Raj Rani v. State (Delhi Administration);
AIR 2000 SC 3559, this Court held that while
considering the case of cruelty in the context to the
provisions of Section 498A I.P.C., the court must
examine that allegations/accusations must be of a very
grave nature and should be proved beyond reasonable
doubt.
20. In Sushil Kumar Sharma vs. Union of India, AIR
2005 SC 3100, this Court explained the distinction of
cruelty as provided under Section 306 and 498A IPC
observing that under Section 498A cruelty committed
by the husband or his relation drive woman to commit
suicide etc. while under Section 306 IPC, suicide is
abated and intended. Therefore, there is a basic
difference of the intention in application of the said
provisions.
21. In Girdhar Shankar Tawade v. State of
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apeal548.04.J.odt 9Maharashtra, AIR 2002 SC 2078; this Court held that
“cruelty” has to be understood having a specific
statutory meaning provided in Section 498A I.P.C. and
there should be a case of continuous state of affairs of
torture by one to another.
22. “Cruelty” for the purpose of Section 498-A I.P.C. is
to be established in the context of S. 498-A IPC as it
may be a different from other statutory provisions. It is
to be determined/inferedby considering the conduct of
the man, weighing the gravity or seriousness of his acts
and to find out as to whether it is likely to drive the
woman to commit suicide etc. It is to be established
that the woman has been subjected to cruelty
continuously/persistently or at least in close proximity
of time of lodging the complaint. Petty quarrels cannot
be termed as ‘cruelty’ to attract the provisions of Section
498-A IPC. Causing mental torture to the extent that it
becomes unbearable may be termed as cruelty.
The cruelty, which is statutorily defined under section
498-A must be as a willful conduct which is likely to drive the
woman to commit suicide or which is likely to cause grave injury
or danger to life, limb or health (whether mental or physical) of
the woman. The willful conduct must be persistent and/or
continuous. The willful conduct, in order to constitute cruelty
within the meaning of explanation (a) of section 498-A must be,
at least in close proximity of time to the incident. An aberration or
stale incident, deplorable as the conduct or incident may be,
would not constitute cruelty as is statutorily defined.
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11] It would be relevant to refer to the enunciation of law
by the Apex Court in Girdhar Shankar Tawade v. State of
Maharashtra reported in AIR (2002) 5 SCC 177.
“3. The basic purport of the statutory provision is
to avoid “cruelty” which stands defined by attributing a
specific statutory meaning attached thereto as noticed
hereinbefore. Two specific instances have been taken
note of in order to ascribe a meaning to the word
“cruelty” as is expressed by the legislature: whereas
Explanation (a) involves three specific situations viz.
(i) to drive the woman to commit suicide or (ii) to
cause grave injury or (iii) danger to life, limb or health,
both mental and physical, and thus involving a physical
torture or atrocity, in Explanation (b) there is absence
of physical injury but the legislature thought it fit to
include only coercive harassment which obviously as
the legislative intent expressed is equally heinous to
match the physical injury; whereas one is patent, the
other one is latent but equally serious in terms of the
provisions of the statute since the same would also
embrace the attributes of “cruelty” in terms of Section
498-A.”
“17. As regards the core issue as to whether
charges under Sections 306 and 498-A of the Indian
Penal Code are independent of each other and acquittal
of one does not lead to acquittal on the other, as
noticed earlier, there appears to be a long catena of
cases in affirmation thereto and as such further
dilation is not necessary neither are we inclined to do
so, but in order to justify a conviction under the later
provision there must be available on record some
material and cogent evidence. Presently, we have on
record two inconsistent versions of the brother and the
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– the documentary evidence (namely, those three
letters), in our view, falls short of the requirement of
the statute: even on an assumption of the fact that
there is no contradiction in the oral testimony available
on record, the cousin goes to the unfortunate girl’s in
laws’ place and requests the husband to treat her well
– at best some torture and a request to treat her well.
This by itself would not bring home the charge under
Section 498-A. Demand for dowry has not seen the
light of day”.
If the evidence of the prosecution is tested on the
anvil of enunciation of law by the Apex Court, the conduct of the
accused which is branded as cruelty by the prosecution, and which
untenable contention of the prosecution found favour with the
learned Sessions Judge, cannot constitute cruelty as is statutorily
defined.
12] Concededly, the marriage was solemnized 17 to 18
years prior to the incident. The version of the prosecution is that
till the birth of the son Babibai was treated well. Why was Babibai
ill-treated after the birth of the son, is left to speculation. It is
however, not in dispute that after 7 to 8 years of marital life, the
accused married a second time with Asha. The evidence that
Babibai along with her son started residing separately, can take
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the case of the prosecution no further. Such a step is most natural
and is not necessarily suggestive of ill-treatment or harassment.
13] The ill-treatment or harassment was allegedly meted
out to Babibai since she demanded the fruits of cultivation of two
acres agricultural land which according to the prosecution the
accused transferred in favour of either Rameshwar or Babibai. It is
not in dispute that the family owns five acres agricultural land
which is not partitioned by metes and bounds. Accused Dnyandeo
has five sons including accused Dinkar. The prosecution has not
produced any evidence to prove that as a fact two acres land was
transferred, or indeed could have been transferred, in the name of
either Rameshwar or Babibai. The prosecution story that two acres
of land was transferred by the accused and since despite the
transfer Babibai was deprived of the fruits of the agricultural land,
has gaping holes. The evidence of the prosecution witnesses that
since Babibai was insisting on share in the proceeds of the
cultivation, she was ill-treated, is of doubtful veracity.
14] In order to prove cruelty, the prosecution has
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examined Prabhakar Ihare P.W.1 who is the informant and the
brother of the deceased, P.W.3 Shantabai Ihare the mother of the
deceased and P.W.4 Subhash Ihare the cousin brother of the
deceased. The evidence of the prosecution witnesses is absolutely
vague and bereft of particulars. Neither P.W.1 nor P.W.3 nor
P.W.4 have disclosed the month or the year in which the accused
transferred two acres land to the deceased. The prosecution
witnesses have not disclosed as to in which month or even year
was the deceased subjected to cruelty. The evidence of the
prosecution witnesses is sketchy and other than use of stereotyped
expression like ill-treatment, torture and harassment no specific
instance of cruelty or the nature and extent of cruelty is spoken by
any of the prosecution witnesses.
15] The evidence of P.W.1 Prabhakar and P.W.3
Shantabai is not consistent. P.W.3 Shantabai states that the
accused did not deliver possession of two acres of agricultural
land to Babibai and she was insisting that possession be
handed-over to her. However, there is not even whisper of the
evidence of P.W.3 that Babibai was ill-treated or harassed since
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she was insisting on possession. P.W.4 Subhash Ihare has a
different story to tell. P.W.4 states that the accused transferred
two acres agricultural land in the name of Rameshwar the son of
Babibai and the accused were demanding the two acres land back
from Babibai, which she was reluctant to do. P.W.4 states that
since she was reluctant to give the land back to the accused but
she was ill-treated and tortured.
16] It must be noted that the time line of the events and
instances is not forthcoming from the prosecution. When was the
land was transferred is left to imagination. When was the
deceased subjected to cruelty is again in the realm of conjectures
and surmises and in order to ascertain the nature and extent of
the ill-treatment or harassment, all that is available on record are
vague statements bereft of details that the deceased was harassed
and ill-treated.
17] In the teeth of evidence on record, the judgment and
order impugned is manifestly erroneous.
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18] The judgment and order impugned is set aside.
19] The father Dnyandeo Parande of the present
appellant chose not to prefer an appeal presumably since he was
sentenced only to imprisonment till rising of the court.
In Gurucharan Kumar vs. State of Rajasthan, 2003 2 SCC 698 the
Apex Court observes thus:
32. As noticed earlier the accused Parvin
Kumar, husband of the accused Geetu has not preferred
an appeal before this Court, on account of the fact that
he has already served out the sentence imposed against
him. However, though we cannot obliterate the
sufferings of Parvin Kumar, we can certainly obliterate
the stigma that attaches to him on account of his
conviction for a heinous offence under Section 304-B
IPC. This Court has laid down a judicious principle that
even in a case where one of the accused has not
preferred an appeal, or even if his special leave petition
is dismissed, in case relief is granted to the remaining
accused and the case of the accused, who has either not
appealed or whose special leave petition has been
dismissed, stands on the same footing, he should not be
denied the benefit which is extended to the other
accused.
20] The accused Dinkar Parande and Dnyandeo Parande
are acquitted of offence punishable under section 498-A, 306 read
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with section 34 of IPC.
20] The bail bond of the accused shall stand discharged
and fine paid, if any, shall be refunded.
21] The appeal is allowed.
JUDGE
NSN
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