Bombay High Court State Of Maharashtra-vs-Ramesh Raghavji Shah And Ors. on 26 July, 2002
Equivalent citations:I (2003) DMC 197
Author: A Aguiar
Bench: D Deshpande, A Aguiar
A.S. Aguiar, J.
1. In this appeal, the State has impugned the order dated 27th January, 1987 passed by the Additional Sessions Judge, Pune acquitting all the accused of the offences punishable under Section 498A read with Section 34 of the Indian Penal Code, 1860 (“I.P.C.” for short) and acquitting accused No. 1 Ramesh Shah of the offence under Section 307 of I.P.C. The learned trial Judge has based his order of acquittal on the ground that the prosecution evidence on record is insufficient, discrepant and not credible enough to bring home the guilt to the accused. All the accused have been charged under Section 498A read with Section 34 of I.P.C. while accused No. 1, husband of the victim, has been separately charged under Section 307 of I.P.C.
2. Briefly, the prosecution case is that; The complainant Smt. Rashila Shah married the accused No. 1 Ramesh Shah in the year 1983. After the marriage, the complainant stayed in the matrimonial house with the accused persons. For some time, her married life was happy but thereafter marital relations soured up. There were allegations of ill-treatment of the complainant at the hands of the accused and also demands for Maruti Car, gold locket and diamond ring from the parents of the complainant. The harassment went on for 1 1/2 year i.e. till the complainant was forced to leave the matrimonial home and to live with her parents. Judicial proceedigs were instituted by accused No. 1 against complainant wife Rashila. However, through intervention and good offices of Oswal Chovisi Mahajan, a conciliation was brought about and the complainant was returned back to the matrimonial home on condition that she will not visit to her parental house at Bombay. However, the complainant alleged that she was again subjected to ill-treatment and beating and there were renewed demands for Maruti car, gold locket, diamond ring, etc.
3. On the evening of 4th May, 1986, after return of the entire family from an outing, at about 10.45 p.m., the complainant and accused No. 1 retired to their bed room. On the accused No. 1, the husband, asking the complainant to take off her clothes, she complied. Thereupon accused No. 1 inflicted a couple of blows on her chest and when she shouted for help; the accused No. 1 thrust the four fingers of his right hand deep into her mouth and pressed her neck with the other hand. In the course of struggle, the complainant’s head struck against a wooden cot resulting in bleeding injury above her right eye-lid. The father-in-law, accused No. 2 Raghavji, who was in the adjoining room, hearing the commotion forcefully opened the door and finding the complainant naked asked her to dress up and, thereafter, he asked her to wipe off the blood stains on the floor. Hearing the shouts of the complainant, several occupants of the building collected in the chowk and some of the them, namely, P.W. 3 Chandrakant Kamble, P.W. 4 Rashiklal Shah P.W. 6 Arvind Parkhe and others rushed to the flat and prevented the accused No. 1 from further assaulting the complainant. The P.W. 6 Arvind rang up Shaniwar Peth Police Chowki and Police Head Constable Narayan Bhalerao accompanied by another Constable came to the flat. Rashila Shah was taken to the police chowki on foot accompanied with some witnesses. The police then referred the complainant to Sasoon General Hospital, Pune, where she was first examined in the Casualty Ward at 1.50 a.m. i.e. on 5th May, 1986. The injury certificate from the Casualty Medical Officer is at Exh. 29. Thereafter Rashila Shah was again examined by P.W. 1 Dr. V.N. Agarwal, Chief Resident Medical Officer at 3.30 a.m. after being admitted in the Female Ward and the injury certificate at Exh. 7 was recorded which made note of other injuries which were not recorded in injury certificate Exh. 29, particularly, the abrasion at left anterior tonsillar pillar in the mouth and on palate. The complaint (Exh. 10) of Rashila Shah was recorded in the hospital by Police Head Constable Narayan Bhalerao (P.W. 10). Thereafter the complaint was sent to the Vishrambaug Police Station where Crime No. 138/ 1986 for offence under Section 498A of I.P.C. was registered at 12.05 p.m. on 5th May, 1986. On the same day the Investigating Officer P.W. 11, PSI Shri D.N. Pawar same day recorded statements of all six witnesses and all the three accused persons were placed under arrest and remanded to judicial custody on 7th May, 1986. On 8.5.1986 he recorded the statement of P.W. 8 Gomatiben Shah. On 9th May, 1986, a supplementary statement of Rashila Shah was recorded. On receipt of injury certificate from the Sasoon Hospital and reply of Dr. V.N. Agarwal to the query from the police, which is at Exh. 8, Section 307 of I.P.C. was added in substitution of Section 323 of I.P.C. On completion of investigation, accused were charge-sheeted under Sections 498A and 307 read with Section 34 of I.P.C. in the Court of Judicial Magistrate, F.C., Court No. 4, Pune.
4. In their statements under Section 313 of Cr.P.C, the accused No. 1 denied that he had subjected the complainant Rashila to cruelty or that there was any demand made for Maruti car, gold locket, diamond ring, etc. He contended that it was the complainant who left matrimonial home and was the root cause for the matrimonial discord. Accused No. 1 Ramesh blamed his wife complainant Rashila for starting the incident immediately after returning from the outing and alleged that she scratched him with nails and bit his fingers.
5. The learned trial Judge in an elaborate order, while observing that the entire evidence adduced by the prosecution sought to bring the case under Explanation (b) to Section 498A of I.P.C., held the same to be unsubstantiated and disbelieved the case of the complainant of demand of dowry or demand for Maruti car, gold locket, diamond ring, etc. by accused on the ground that evidence was insufficient, discrepant, not credible and suffered from improvements. The learned trial Judge has disbelieved the allegation that the complainant was required to do household chorus like cleaning of utensils the whole of the day since there was a maid servant in the matrimonial home and further the so-called ill-treatment of the complainant referred to by her in her testimony before the Court does not find place in the complaint Exh.
10. In view thereof, the learned trial Judge held that no case under Section 498A Explanation (b) of I.P.C. was made out.
6. So far as the charge under Section 307 of I.P.C. is concerned, the learned trial Judge has disbelieved the testimony of the complainant on the ground that the medical evidence does not support the prosecution case that accused No. 1 attempted to strangulate or throttle his wife Rashila Shah. Moreover Rashila Shah in her testimony has not even remotely referred to any attempt made by accused No. 1 to strangulate her and it is only when she was called to explain the circumstances in which she sustained injuries, she stated that her husband had pressed her neck and consequently the neck injuries were caused. Further, reference is made by the learned trial Judge to the statement of the complainant at Exh. 10, wherein, the complainant has stated that the injury alone was to the right eye consequent upon her fall on the cot in the course of grappling with her husband i.e. accused No. 1. In view thereof her testimony before the Court that the accused No. 1 caused her eye injury by dashing her against the cot is an improvement. Furthermore, the learned trial Judge seems to have been swayed to believe that it was the complainant who was aggressor in view of the fact that accused No. 1 husband had suffered nail scratches at the hands of the complainant which has been borne out by the medical certificate at Exh. 38 and also “from the surrounding circumstances it was clear that things happened on the spur of the moment”.
7. We find that the learned trial Judge has rightly come to the conclusion that the evidence brought on record does not support the case of the complainant against the accused under Explanation (b) to Section 498A of I.P.C. However, it is beyond doubt that there was a quarrel between the husband, accused No. 1, and the complainant. The quarrel became physical when accused No. 1 delivered fist blows on the chest of the complainant wife which caused her to shout for help and her shouts attracted not only the father-in-law, who was in the adjoining room, but also the other residents of the building who collected in the chowk and came into the flat and prevented accused No. 1 from causing any further injuries to the complainant. Undoubtedly, the complainant suffered injuries to her person as set out in the injury certificates Exh. 7 and Exh. 29. Injury certificate at Exh. 29 was recorded by the Casualty Medical Officer where the complainant was first taken and examined at 1.50 a.m. and thereafter was admitted in the Female Ward where she was again thoroughly examined by the Chief Resident Medical Officer Dr. V. N. Agarwal who issued the injury certificate Exh. 7 which was recorded at 3.30 a.m. The case of the prosecution that the husband accused No. 1 thrust the four fingers of his right hand deep into the complainant’s throat is clearly borne out by the injury certificate Exh. 7. The injury No. 4 mentioned in the certificate Exh. 7 refers to abrasion to the ‘anterior tonsillar pillar’ in the mouth and on palate which is also described as “dangerous injury”. Dr. V.N. Agarwal has proved the injury certificate Exh. 7. Dr. Agarwal in his testimony before the Court pointed out that the injury Nos. 2 and 3 are due to nail marks and these injuries are possible in the course of attempt at strangulation. That injury No. 1 abrasion contusion with CLW right upper eye-lid was possible when the victim fell and hit her head against the cot, and that injury Nos. 4 and 5 are possible by fingers thrust deep in the mouth. Further Dr. Agarwal has opined that due to injury Nos. 3,4 and 5 the life of the complainant was in danger but for the fact that she was rescued promptly.
8. However, in his cross-examination Dr. Agarwal has admitted the possibility of injury Nos. 2 and 3 being self-inflicted. On the basis of the aforesaid admission in the cross-examination of Dr. Agarwal, the learned trial Judge has rejected the prosecution case of attempt by accused No. 1 to murder the complainant. We do not find any reason to interfere with the conclusion of the learned trial Judge. However, even if the aforesaid physical assault on the complainant by accused No. 1, which is established beyond doubt, cannot be considered to be attempt by accused No. 1 on the life of the complainant so as to amount to offence under Section 307 of I.P.C, nevertheless the said injuries set out in the injury certificate (Exh. 7) clearly fall within the definition of cruelty as set out in Explanation (a) to Section. 498A of I.P.C. Therefore, the offence under Section 498A is attracted. Explanation (a) to Section 498A reads as follows :
“Explanation-For the purposes 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.”
The injury, particularly, injury No. 4, clearly establishes that accused No. 1 had thrust his fingers deep into the throat of the complainant and albeit he might have done in the heat of the moment, nonetheless, this act was serious enough to cause grave injury and danger to the life and health of the complainant. Although the. learned Trial Judge might be justified in acquitting accused No. 1 of the offence under Section 307 of I.P.C., nevertheless, the facts of the case clearly attract Section 498A Explanation (a) of I.P.C. The learned trial Judge, therefore, ought to have convicted accused No. 1 of cruelty as set out in Explanation (a) to Section 498A of LP.C
9. We may hereby point out that pending this appeal, accused Nos. 2 and 3 expired and hence the appeal against them stands abated. We pass the following order:
Appeal is allowed.
The order of acquittal of accused No. 1 is set aside. Accused No. 1 is convicted under Section 498A of I.P.C. and sentenced to suffer R.I. for one month and to pay fine of Rs. 5,000/- and in default fro undergo R.I. for further two weeks. If the fine is deposited the same shall be paid to the victim.
Accused No; 1 to surrender before the Trial Court within six weeks from the date of the order to suffer the sentence. On his surrendering the bail bond furnished by him to stand cancelled.
Accused Nos. 2 and 3 are dead. Therefore, appeal against them stands abated.
The order be immediately communicated to the office of the concerned Sessions Judge who will seek enforcement of the order as provided by law.