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Sanjay Vasantrao Nagmote vs State Of Mah. Thru. P.S.O on 17 February, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.555 OF 2007

Sanjay s/o Vasantrao Nagmote,
Aged about 29 years,
Occupation – Agriculturist,
Resident of Parsodi (Dixit), Tahsil-
Narkhed, District – Nagpur. …. APPELLANT

VERSUS

The State of Maharashtra,
through its Police Station Officer,
Police Station Jalalkheda, District –
Nagpur. …. RESPONDENT

__

Shri A.R. Sharma, learned Counsel holding for Shri Amol Mardikar,
Counsel for the appellant,
Shri N.H. Joshi, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATED : 17
FEBRUARY, 2018.

th

ORAL JUDGMENT :

Appellant Sanjay Nagmote faced trial for offence

punishable under Sections 306 and 498-A of the Indian Penal Code

(“IPC” for short) alongwith his brother Chandu Nagmote, who is

acquitted. The appellant is acquitted of offence punishable under

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Section 306 of the IPC and is convicted for offence punishable under

Section 498-A of the IPC and is sentenced to suffer rigorous

imprisonment for one year and to payment of fine of Rs.1,000/-. This

judgment dated 21-11-2007 rendered by the learned Ad hoc District

Judge-4 and Additional Sessions Judge, Nagpur is assailed herein.

2. Heard Shri A.R. Sharma, learned Counsel holding for Shri

Amol Mardikar, learned Counsel for the appellant-accused and Shri

N.H. Joshi, learned Additional Public Prosecutor for the respondent-

State.

3. Shri A.R. Sharma, learned Counsel for the accused

contends :

(i) The conviction is based on inadmissible evidence,

(ii) The delay of 15 days in lodging the first information report

is unexplained and renders the prosecution case suspect.

(iii) Even if arguendo, the evidence is held admissible, the

prosecution has not established cruelty within the meaning of

Explanation (a) or (b) of Section 498-A of the IPC.

(iv) The defence that the deceased Sou. Maya was suffering from

unbearable acute stomach pain which led her to commit suicide, is

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probablised on the touchstone of preponderance of probabilities.

Per contra, Shri N.H. Joshi, learned Additional Public Prosecutor

supports the judgment and order impugned.

4. The deceased Maya and accused Sanjay entered into

matrimonial alliance on 17-5-2005. Concededly, Maya died within

four month of the marriage on 10-9-2005 due to consumption of

insecticide. The oral report was lodged by P.W.1 Natthuji Zamde-the

father of the deceased on 25-9-2005. The explanation given by P.W.1

for lodging the oral report belatedly is that he was mentally disturbed.

The offence which is registered on the basis of the delayed oral report

is also belatedly registered on 25-10-2005. The explanation of the

Investigating Officer P.W.7 is that the offence was not registered

immediately because the accused and the father of the deceased

(P.W.1) were intending to compromise and the offence was registered

since the compromise did not materialise. Shri A.R. Sharma, learned

Counsel is justified in submitting that the explanation given for belated

lodging of the report and the registration of the offence is not

satisfactory.

5. The gist of the oral report lodged on 25-9-2005 (Exhibit

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17) is that deceased Maya was treated well for fifteen days. Thereafter

accused Sanjay used to come home under the influence of liquor and

used to harass Maya for demand of Rs.15,000/- and ring. Maya

disclosed to P.W.1 that accused Sanjay was addicted to liquor and

gambling and was not taking her to the hospital when she was ill.

6. In his deposition, P.W.1 states that Maya was treated well

for fifteen days and then the harassment began. Accused Sanjay

complained that inadequate dowry was given. On the eve of Rakhi

festival Maya and the accused visited P.W.1 and accused demanded

Rs.15,000/- and gold ring. P.W.1 states that he received the

information of the said demand from Maya. The evidence that Maya

and accused visited P.W.1 on the occasion of Rakhi festival and it was

then that the demand was conveyed by Maya, is inconsistent with the

contents of the oral report (Exhibit 17).

7. P.W.2 Anusayabai who is the mother of the deceased,

states that after the initial period of marital life the accused started

harassing Maya for amount of Rs.15,000/- and gold ring. P.W.2 ropes

in the mother-in-law, who is not an accused, as the person who

alongwith accused Sanjay was harassing Maya. She then states that

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when Maya and accused visited her on the occasion of Rakhi Maya

complained about ill-treatment. P.W.2 Anusayabai Zamde states that

Maya conveyed that accused Sanjay used to beat her under the

influence of liquor and that Maya also disclosed the harassment to

P.W.1.

In the cross-examination, she denies the suggestion that

Maya was suffering from stomach ache. She admits that Maya visited

her in summer and on the occasion of Akhadi she did not make any

complaint. She admits that in the statement recorded on 11-9-2005

she did state before the police that Maya complained about her ill-

health. She admits that Rs.35,000/- was paid to the accused willingly.

8. P.W.3 Shyamao Zamde does not speak of ill-treatment or

demand and his evidence is of no assistance to the prosecution.

9. P.W.4 Nitin Tekade is the witness to the seizure

panchanama who did not support the prosecution.

10. P.W.5 Atul Zamde is the elder brother of the deceased. He

states that when Maya and the accused visited her parental home on

the occasion of Rakhi festival, Maya disclosed that she was having

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persistent stomachache and that the accused was not providing medical

treatment. He states that Maya also revealed that accused was

harassing her for money and gold ring.

11. P.W.6 Dr. Pankaj Karande conducted the autopsy on the

dead body of Maya and his opinion is that the cause of death is

poisoning. He has proved the post-mortem report (Exhibit 28). The

evidence of P.W.6 is corroborated by the report of the Chemical

Analyser (Exhibit 29) which confirms detection of organo-chloro

insecticide endosulfan (thiodan organophosphorous insecticide

quinalphos (Ekalux) and petroleum hydrocarbons.

12. P.W.7 Wasudeo Kapte is the investigating officer. He

admits that during the course of investigation, it was revealed that

Maya was suffering from stomach ache and that on the day of the

incident she suffered acute pain. It is elicited in the cross-examination

that investigation revealed that the accused did not have the money for

treatment and he went to other people to arrange for money and in the

meanwhile Maya committed suicide.

13. The accused is acquitted of offence under Section 306 of

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the IPC and the only offence left for consideration was Section 498-A of

the IPC. The cause of death was no longer in issue. The learned

Sessions Judge committed a serious error of law in relying on the

disclosure by the deceased Maya to her relatives. The verbal

statements of the deceased were not admissible under Section 32(1) of

the Indian Evidence Act since the cause of death or circumstances

leading to the transaction which resulted in death, was not in issue.

Suffice it to refer to the observations of the Hon’ble Apex Court in

Bhairon Singh Vs. State of Madhya Pradesh, 2000 SCC 80, which

read thus :

“3. The legal position relating to the admissibility of
evidence under section 32(1) has come up for consideration
before this court time and again. It is not necessary to
multiply the authorities in this regard as reference to a
three-Judge Bench decision of this court in Sharad
Birdhichand Sarda Vs. State of Maharashtra, (1984)4 SCC
116:[2009 ALL SCR(O.C.C.) 281], will suffice. Regarding
the application of rule under section 32(1) Evidence Act,
Fazal Ali, J. culled out the legal position as follows:

“(1) Section 32 is an exception to the rule of hearsay
and makes admissible the statement of a person who dies,
whether the death is a homicide or a suicide, provided the
statement relates to the cause of death, or exhibits
circumstances leading to the death. In this respect as
indicated above, the Indian Evidence Act, in view of the
peculiar condition of our society and the diverse nature and
character of our people, has thought it necessary to widen
the sphere of Section 32 to avoid injustice.

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(2) The test of proximity cannot be too literally
construed and practically reduced to a cut-and-dried formula
of universal application so as to be confined in a straitjacket.
Distance of time would depend or vary with the
circumstances of each case. For instance, where death is a
logical culmination of a continuous drama long in process
and is, as it were, a finale of the story, the statement
regarding each step directly connected with the end of the
drama would be admissible because the entire statement
would have to be read as an organic whole and not torn
from the context. Sometimes statements relevant to or
furnishing an immediate motive may also be admissible as
being a part of the transaction of death. It is manifest that
all these statements come to light only after the death of the
deceased who speaks from death. For instance, where the
death takes place within a very short time of the marriage or
the distance of time is not spread over more than 3-4 months
the statement may be admissible under Section 32.

(3) The second part of clause (1) of Section 32 is
yet another exception to the rule that in criminal law the
evidence of a person who was not being subjected to or given
an opportunity of being cross-examined by the accused,
would be valueless because the place of cross-examination is
taken by the solemnity and sanctity of oath for the simple
reason that a person on the verge of death is not likely to
make a false statement unless there is strong evidence to
show that the statement was secured either by prompting or
tutoring.

(4) It may be important to note that Section 32 does
not speak of homicide alone but includes suicide also, hence
all the circumstances which may be relevant to prove a case
of homicide would be equally relevant to prove a case of
suicide.

(5) Where the main evidence consists of statements
and letters written by the deceased which are directly
connected with or related to her death and which reveal a
tell-tale story, the said statement would clearly fall within
the four corners of Section 32 and, therefore, admissible. The
distance of time alone in such cases would not make the
statement irrelevant.”

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4. Varadarajan, J. on the other hand referred to the legal
position stated by Woodroffe and Amir Ali in their Law of
Evidence,(fourteenth edition) and Ratanlal and Dhirajlal in
their Law of Evidence (1982 Reprint). This is how A.
Varadarajan, J. dealt with the admissibility of evidence
under Section 32(1):(Sharad case, SCC pp. 206-08, Para

202)
“202…….The position of law relating to the
admissibility of evidence under Section 32(1) is well settled.
It is, therefore, not necessary to refer in detail to the
decisions of this Court or of the Privy Council or our High
Courts. It would suffice to extract what the learned authors
Woodroffe and Amir Ali have stated in their Law of Evidence,
Fourteenth Edn. and Ratanlal and Dhirajlal in their Law of
Evidence (1982 Reprint). Those propositions are based
mostly on decisions of courts for which reference has been
given at the end. They are these:

Woodroffe and Amir Ali’s Law of Evidence, Fourteenth
Edn.:

‘Page 937:

Hearsay is excluded because it is considered not
sufficiently trustworthy. It is rejected because it lacks the
sanction of the test applied to admissible evidence, namely,
the oath and cross- examination. But where there are special
circumstances which give a guarantee of trustworthiness to
the testimony, it is admitted even though it comes from a
second-hand source.

Page 941
What is relevant and admissible under clause (1) of
this section (Section 32) is the statement actually made by
the deceased as to the cause of his death or of the
circumstances of the transaction which resulted in his death.
Page 945-946:

A statement must be as to the cause of the declarant’s
death or as to any of the circumstances of the transaction
which resulted in his death i.e. the cause and circumstances
of the death and not previous or subsequent transaction,
such independent transactions being excluded as not falling
within the principle of necessity on which such evidence is

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received. When a person is not proved to have died as a
result of injuries received in the incident in question, his
statement cannot be said to be a statement as to the cause of
his death or as to any of the circumstances which resulted in
his death. Where there is nothing to show that the injury to
which a statement in the dying declaration relates was the
cause of the injured person’s death or that the circumstances
under which it was received resulted in his death, the
statement is not admissible under this clause.
Page 947:

Circumstances of the transaction resulting in his
death: This clause refers to two kinds of statements: (i) when
the statement is made by a person as to the cause of his
death, or (ii) when the statement is made by a person as to
any of the circumstances of the transaction which resulted in
his death. The words “resulted in his death” do not mean
“caused his death”. The expression “any of the circumstances
of the transaction which resulted in his death” is wider in
scope than the expression “the cause of his death”. The
declarant need not actually have been apprehending death.
Page 947:

The expression “circumstances of the transaction”
occurring in Section 32, clause (1) has been a source of
perplexity to courts faced with the question as to what
matters are admissible within the meaning of the expression.
The decision of Their Lordships of the Privy Council in
Pakala Narayana Swami v. Emperor (AIR 1939 PC 47) sets
the limits of the matters that could legitimately be brought
within the purview of that expression. Lord Atkin, who
delivered the judgment of the Board, has, however, made it
abundantly clear that, except in special circumstances no
circumstance could be a circumstance of the transaction if it
is not confined to either the time actually occupied by the
transaction resulting in death or the scene in which the
actual transaction resulting in death took place. The special
circumstance permitted to transgress the time factor is, for
example, a case of prolonged poisoning, while the special
circumstance permitted to transgress the distance factor is,
for example, a case of decoying with intent to murder…. But
the circumstances must be circumstances of the transaction

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and they must have some proximate relation to the actual
occurrence.

Page 948:

“Circumstances of the transaction” is a phrase no
doubt that conveys some limitations. It is not as broad as the
analogous use in “circumstantial evidence” which includes
the evidence of all relevant factors. It is on the other hand
narrower than `res gestae’. Circumstances must have some
proximate relation to the actual occurrence, though, as for
instance, in the case of prolonged poisoning they may be
related to dates at a considerable distance from the date of
actual fatal dose.

Page 948:

The Supreme Court in the case of Shiv Kumar v. State
of U.P.{1966 Cri.App.R (SC) 281} has made similar
observations that the circumstances must have some
proximate relation to the actual occurrence, and that general
expressions indicating fear or suspicion, whether of a
particular individual or otherwise and not directly to the
occasion of death will not be admissible.
Page 949:

The clause does not permit the reception in evidence of
all such statements of a dead person as may relate to matters
having a bearing howsoever remote on the cause or the
circumstances of his death. It is confined to only such
statements as relate to matters so closely connected with the
events which resulted in his death that may be said to relate
to circumstances of the transaction which resulted in his
death. “Circumstances of the transaction which resulted in
his death” means only such facts or series of facts which have
a direct or organic relation to death. Hence statement made
by the deceased long before the incident of murder is not
admissible.

[1974 Cri LJ 1200 (MP).] Law of Evidence by Ratanlal and
Dhirajlal (1982 Reprint)
“Page 94:

Circumstances of the transaction – General expressions
indicating fear or suspicion whether of a particular
individual or otherwise and not directly related to the
occasion of the death are not admissible.

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Page 95:

Circumstances must have some proximate relation to
the actual occurrence and must be of the transaction which
resulted in the death of the declarant. The condition of the
admissibility of the evidence is that the cause of the
declarant’s death comes into question. It is not necessary that
the statement must be made after the transaction has taken
place or that the person making it must be near death or
that the `circumstance’ can only include the acts done when
and where the death was caused….Dying declarations are
admissible under this clause.'”

11. The only evidence to bring home charge under Section
498A, IPC, is that of PW-4 and PW-5. In their deposition
PW-4 and PW-5 stated that their sister told them that
accused was torturing her as he wanted that her brothers
should arrange a job for him or the house at Ganj Basoda is
given to him or a cash of Rs.1 lac is given to enable him to
do some business. They deposed that as and when their sister
come to their house, she would tell them that accused used to
insert cloth in her mouth and give beatings for dowry.

12. The trial court as well as the High Court relied on the
evidence of PW-4 and PW-5 and held that charge under
Section 498A, IPC, against the accused was proved. Apart
from the statement attributed to the deceased, none of the
witnesses had spoken anything which they had seen directly
insofar as torture and harassment to Ranjana Rani @ Raj
Kumari was concerned.

13. The moot question is: whether the statements
attributed to the deceased could be used as evidence for
entering upon a finding that the accused subjected Ranjana
Rani @ Raj Kumari to cruelty as contemplated under Section
498A, IPC.

14. In our considered view, the evidence of PW-4 and PW-
5 about what the deceased Ranjana Rani @ Raj Kumari had
told them against the accused about the torture and
harassment is inadmissible under Section 32(1) of the

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Evidence Act and such evidence cannot be looked into for any
purpose.

15. Except Section 32(1) of the Indian Evidence Act, there
is no other provision under which the statement of a dead
person can be looked into in evidence. The statement of a
dead person is admissible in law if the statement is as to the
cause of death or as to any of the circumstance of the
transactions which resulted in her death, in a case in which
the cause of death comes into question. What has been
deposed by PW-4 and PW-5 has no connection with any
circumstance of transaction which resulted in her death.

16. The death of Smt. Ranjana Rani @ Raj Kumari was
neither homicidal nor suicidal; it was accidental. Since for
an offence under Section 498A simpliciter, the question of
death is not and cannot be an issue for consideration, we are
afraid the evidence of PW-4 and PW-5 is hardly an evidence
in law to establish such offence. In that situation Section
32(1) of the Evidence Act does not get attracted.

17. We are fortified in our view by the decision of this
Court in Inderpal vs. State of M.P., wherein this Court
considered the matter thus SCC pp.738-39, paras 4-7):

“4. We will consider at first the contention as to
whether there is any evidence against the appellant which
can be used against him for entering upon a finding that he
subjected Damyanti to cruelty as contemplated in Section
498-A IPC. PW 1 father of the deceased and PW 8 mother of
the deceased have stated that Damyanti had complained to
them of her plight in the house of her husband and
particularly about the conduct of the appellant. PW 4 sister
of the deceased and PW 5 a relative of the deceased have also
spoken more or less on the same line. Exhibit P-7 and Exhibit
P-8 are letters said to have been written by Damyanti. In
those two letters reference has been made to her life in the
house of her in-laws and in one of the letters she said that
her husband had subjected her to beating.

5. Apart from the statement attributed to the deceased
none of the witnesses had spoken of anything which they had

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seen directly. The question is whether the statements
attributed to the deceased could be used as evidence in this
case including the contents of Exhibits P-7 and P-8 (letters).

6. Before deciding that question we have to point out
that the High Court came to a conclusion that the allegation
that she committed suicide was not substantiated. A dying
declaration was recorded by the Executive Magistrate in
which the deceased had stated that she got burns
accidentally from a stove. If that be so, death could not be
the result of either any harassment or any cruelty which she
was subjected to. In this context we may point out that the
State has not challenged the finding of the High Court that
death of Damyanti was not due to commission of suicide.

7. Unless the statement of a dead person would fall
within the purview of Section 32(1) of the Indian Evidence
Act there is no other provision under which the same can be
admitted in evidence. In order to make the statement of a
dead person admissible in law (written or verbal) the
statement must be as to the cause of her death or as to any
of the circumstances of the transactions which resulted in her
death, in cases in which the cause of death comes into
question. By no stretch of imagination can the statements of
Damyanti contained in Exhibit P-7 or Exhibit P-8 and those
quoted by the witnesses be connected with any circumstance
of the transaction which resulted in her death. Even that
apart, when we are dealing with an offence under Section
498-A IPC disjuncted from the offence under Section 306,
IPC the question of her death is not an issue for
consideration and on that premise also Section 32(1) of
the Evidence Act will stand at bay so far as these materials
are concerned.”

It would also be apposite to refer to the following observations in

Kantilal Martaji Pandor vs. State of Gujarat and another reported in

(2013) 8 SCC 781 and in particular to the following observations.

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“17. The question that we have, therefore, to decide is
whether the Court could have arrived at this finding that
the appellant has starved the deceased and committed
various acts of mental cruelty towards the deceased only on
the basis of the contents of the letter dated 26.03.1992
written by the deceased to the Police Station. The letter
written by the deceased on 26.03.1992 could be relevant
only under Section 32(1) of the Evidence Act, 1872, which
provides that a statement, written or verbal, of relevant
facts made by a person who is dead, is relevant when the
statement is made by a person as to the cause of his death,
or as to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that
person’s death comes into question. The High Court in the
present case has already held that the appellant was not
guilty of abetting the suicide of the deceased and was,
therefore, not guilty of the offence under Section 306, IPC.
As the cause of the death of the deceased is no more in
question in the present case, the statements made by the
deceased in the letter dated 26.03.1992 to the Police
Station cannot be taken to be proof of cruel acts committed
by the appellant for the purpose of holding him guilty under
Section 498-A, IPC.

18. For taking this view, we are supported by the decision
of this Court in Inderpal v. State of M.P. In this case,
Inderpal was charged and tried for the offence under Section
306, IPC, and convicted by the trial court for the said
offence of abetment of suicide. In the appeal filed by
Inderpal, the High Court found that the offence under
Section 306 IPC, was not made out as it could not be held
that death of the deceased was due to commission of suicide,
but the High Court held the appellant guilty of the offence
under Section 498-A, IPC. This finding of the High Court
was based on the evidence of the father, mother, sister and
another relative of the deceased who deposed on the basis of
inter alia the two letters (Exhibits P-7 and P-8) written by
the deceased Damyanti that Inderpal, her husband, had
subjected her to beating. This Court found that apart from
the statement attributed to the deceased, none of the

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witnesses had spoken of anything which they had seen
directly and the question that this Court had to decide was
whether the statement attributed to the deceased could be
used as evidence including the contents of Exts.P-7 and P-8
and this Court held that the contents of Exts. P-7 and P-8
written by the deceased could not be treated as proof of the
acts of cruelty by Inderpal for the purpose of offence under
Section 498-A IPC. The reasons given by this Court in
paragraph 7 of the judgment as reported in the SCC are as
follows (Inderpal case, SCC p. 739):

“7. Unless the statement of a dead person
would fall within the purview of Section 32(1) of the
Evidence Act there is no other provision under which
the same can be admitted in evidence. In order to
make the statement of a dead person admissible in
law (written or verbal) the statement must be as to
the cause of her death or as to any of the
circumstance of the transactions which resulted in
her death, in cases in which the cause of death comes
into question. By no stretch of imagination can the
statements of Damyanti contained in Exhibit P-7 or
Exhibit P-8 and those quoted by the witnesses be
connected with any circumstance of the transaction
which resulted in her death. Even that apart, when
we are dealing with an offence under Section 498-A
IPC disjuncted from the offence under Section 306
IPC the question of her death is not an issue for
consideration and on that premise also Section 32(1)
of the Evidence Act will stand at bay so far as these
materials are concerned.”

14. Shri A.R. Sharma, learned Counsel is justified in the

submission that the conviction is based on inadmissible evidence. Even

if arguendo, the evidence is considered, the prosecution has failed to

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establish that the deceased Maya was subjected to cruelty within the

meaning of Explanation (a) or (b) of Section 498-A of the IPC. It is

only P.W.2 Anusayabai who states that Maya disclosed that she was

beaten by the accused under the influence of liquor. This evidence is

not supported or corroborated by any other relative. P.W.1 Nathuji,

who has lodged the report belatedly after 15 days of the death, states

that it was when Maya and the accused visited him on the occasion of

Rakhi festival that Maya made disclosure that the accused was

demanding Rs.15,000/- and gold ring. Other than this bare statement,

P.W.1 has not disclosed the nature and extent of harassment to which

the deceased was allegedly subjected to by the accused. The version of

P.W.2 that Maya was beaten is unreliable since P.W.1 to whom

according to the witness the disclosure was made by Maya, does not

speak of the accused having beaten Maya muchless for demand of

dowry. The evidence of P.W.2 that Maya disclosed that accused used

to assault Maya under the influence of liquor, is not corroborated by

P.W.1 who makes no reference whatsoever to the consumption of

liquor or muchless beating under the influence of liquor. The only

other witness examined to prove cruelty, P.W.5 Atul states that Maya

disclosed that she was having persistent stomach ache and that she was

not provided medical treatment. However, this is not the version of

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P.W.1. The only other statement is that Maya complained that accused

was harassing her for money and gold ring. Again, the evidence is

bereft of particulars and the nature and extent of harassment is left to

speculation.

15. It is trite law, that cruelty which must be established to

bring home charge under Section 498-A of the IPC is of graver and

sterner degree than the concept of cruelty in matrimonial law. 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 must be proved beyond

reasonable doubt. The harassment envisaged by Explanation (b) to

Section 498-A must be proved to be wilful and intended to coerce the

women or her family members to satisfy an unlawful demand. The

evidence on record falls woeful short of the requisite degree of proof.

16. The judgment and order impugned is unsustainable and is

set aside. The accused is acquitted of offence punishable under Section

498-A of the IPC.

17. Bail bond of the accused shall stand cancelled.

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19 apeal555.07

18. Fine paid by the accused, if any, be refunded to him.

19. The appeal is allowed and disposed of accordingly.

JUDGE
adgokar

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