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Tukaram Changdeo Kanade vs The State Of Maharashtra on 20 January, 2018

APPEAL-839-1998-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMNAL APPEAL NO.839 OF 1998

TUKARAM CHANGDEO KANADE )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Ms.Nasreen Ayubui, Appointed Advocate for the Appellant.

Mr.S.V.Gavand, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 20th JANUARY 2018

JUDGMENT :

1 By this appeal, the appellant/accused is challenging

the judgment and order dated 28 th September 1991 passed by the

learned 9th Additional Sessions Judge, Pune, in Sessions Case

No.319 of 1994, thereby convicting the appellant/accused for the

offence punishable under Section 498A of the Indian Penal Code.

He is sentenced to suffer rigorous imprisonment of 2 years apart

from directing him to pay fine of Rs.500/- and in default, to

undergo further rigorous imprisonment for 2 months. Rest of the

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three accused persons were acquitted by the learned trial court by

the said judgment and order.

2 Briefly stated, it is case of the prosecution that on 24 th

April 1993, Meera Kisan Illay, resident of Talegaon, Taluka

Sangamner, District Ahmednagar, married appellant/accused

Tukaram Kanade. It was an arranged marriage, which was

solemnized with consent of the bride as well as the bridegroom.

The appellant/accused, at the time of his marriage, was serving in

Telco Company, and was residing at Lonikand, Pune. After one

month of her marriage, Meera started cohabiting with

appellant/accused Tukaram Kanade at Lonikand, Pune. Co-

accused who are parents and relatives of the appellant/accused

were also residing with him. It is case of the prosecution that

after her marriage, accused persons including the

appellant/accused used to coerce Meera to bring an amount of

Rs.20,000/- from her parents and on account of that demand, he

used to beat Meera. Mother-in-law of Meera was not providing

food to her and she was insisting Meera to do much more physical

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work. She was insulting and mentally torturing Meera. Father-in-

law of Meera used to abuse her on trivial things and used to

threaten her that if she fails to bring the amount of Rs.20,000/-

from her parents, she will be divorced. The prosecution further

alleged that sister-in-law of Meera also used to subject her to

cruelty. Meera used to disclose all these happenings in her

married life to her parents when she used to visit her parental

house from time to time. Ultimately, according to the prosecution,

Meera committed suicide on 14th June 1994. Report of her death

(Exhibit 25) on 15th June 1994 was given by her father PW2 Kisan

Illay to Sangamner Police Station. Then on 16th June1994, her

brother Sukhdeo lodged First Information Report (FIR) Exhibit 20

with Sangamner Police Station. As the alleged offence took place

within territorial jurisdiction of Haveli Police Station, Pune, the

said FIR along with papers of accidental death case were sent to

Haveli Police Station, where Crime No.148 of 1994 came to be

registered against the accused persons including the present

appellant/accused Tukaram Kanade.

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3 After completion of routine investigation, the

applicant/accused along with three co-accused was charge-

sheeted for offences punishable under Sections 498A and 306

read with 34 of the Indian Penal Code. They were accordingly

charged. In order to bring home the guilt to the

appellant/accused, the prosecution has examined in all six

witnesses. PW1 Sukhdeo is the First Informant. He is brother of

deceased Meera Tukaram Kanade. Kisan Illay – father of deceased

Meera is examined as PW2. Dr.Shivaji Mahale, Autopsy Surgeon,

is examined as PW3. Exhibit 28 is report of postmortem

examination of dead body of Meera Kanade. Police Head

Constable Balkrushna Andbale, who recorded report of accidental

death case of deceased Meera is examined as PW4. Police

Constable Shivaji Joshi who had conducted part of the

investigation is examined as PW5. Investigating Officer Police Sub-

Inspector Hindurao Godse is examined as PW6. Defence of the

accused persons was that of total denial. They examined Heerabai

Kand, neighbour as DW1 and Dr.Nirmala Ganla as DW2.

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4 After hearing the parties, by the impugned judgment

and order, the learned trial court came to the conclusion that the

prosecution has failed to prove that death of Meera Kanade, which

occurred on 14th June 1994, was suicidal death, and therefore, all

accused persons were acquitted of the offence punishable under

Section 306 read with 34 of the Indian Penal Code. It is also held

that the prosecution has failed to prove that accused nos.2 to 4,

who were in-laws and sister-in-law of deceased Meera, had

subjected her to cruelty. However, by the impugned judgment and

order, the learned trial court concluded that the evidence of the

prosecution is sufficient to prove that the present

appellant/accused Tukaram Kanade-husband subjected deceased

Meera to cruelty and accordingly, he is convicted of the offence

punishable under Section 498A of the Indian Penal Code and is

sentenced as indicated in the opening paragraph of this judgment.

5 I have heard Ms.Nasreen Ayubi the learned advocate

appearing for the appellant/accused. By drawing my attention to

the definition of term “cruelty” as stated in explanation to Section

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498A of the Indian Penal Code, Ms.Nasreen Ayubi vehemently

argued that even if evidence of the prosecution is accepted as it is,

then also it fails to meet the standard required by explanation to

Section 498A of the Indian Penal Code and therefore, the learned

trial court committed grave error in convicting the appellant/

accused of the offence punishable under Section 498A of the

Indian Penal Code.

6 Shri Gavand, the learned APP, supported the impugned

judgment and order of conviction by relying on evidence of PW1

Sukhdeo and PW2 Kisan Illay.

7 I have carefully considered the rival submissions and

also perused the record and proceedings including the deposition

of witnesses and documentary evidence adduced by the

prosecution.

8 The learned trial court by the impugned judgment and

order has come to the conclusion that deceased Meera Kanade

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died because of Hepatitis-B on 14 th June 1994, and her death is

not suicidal. All accused persons are acquitted of the offence

punishable under Section 306 read with 34 of the Indian Penal

Code. Now let us examine whether the appellant/accused

Tukaram Kanade – husband of deceased Meera had subjected her

to cruelty during her matrimonial life of about 13 months.

Explanation to Section 498A of the Indian Penal Code defines

“cruelty” and it reads thus :

“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 For establishing cruelty to deceased Meera, the

prosecution has relied on evidence of her near and dear ones

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namely, PW1 Sukhdeo – brother and PW2 Kisan Illay – father of

deceased Meera. There is no piece of disinterested evidence

coming on record from the side of prosecution to infer cruelty to

deceased Meera by her husband Tukaram Kanade. Therefore, let

us see what her brother and father are deposing in order to

ascertain whether the deceased was subjected to physical as well

as mental cruelty of requisite intensity and persistence in order to

bring home the guilt to the appellant/ accused for the offence

punishable under Section 498A of the Indian Penal Code. It is well

settled that trivial instances and normal wear and tear of married

life do not amount to legal cruelty required for convicting the

accused for the offence punishable under Section 498A of the

Indian Penal Code. PW1 Sukhdeo – brother of deceased Meera in

his evidence has stated that it was after one month of her

marriage, his sister Meera started cohabiting with the

appellant/accused by residing with him at Lonikand, Pune.

Accused nos.2 Changdeo Kanade and accused no.3 Godhabai

Kanade, who are parents of the appellant/accused Tukaram were

also residing with him. As per version of PW1 Sukhdeo, his sister

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Meera came to her parental house on four to five occasions and

during her visits, she disclosed to him that her husband and in-

laws are not treating her properly. PW1 Sukhdeo further deposed

that Meera disclosed to him that her husband and in-laws are

demanding an amount of Rs.20,000/-, so that her husband can get

a permanent job and they are harassing her for satisfying this

demand of Rs.20,000/-. Cross-examination of PW1 Sukhdeo

reveals that during initial period of six months of cohabitation of

Meera with the appellant/accused, there was no complaint of ill-

treatment. This witness candidly admitted that he himself had

visited house of the appellant/accused on five to six occasions and

on each occasion, he was treated properly.

10 This evidence coming on record from the mouth of

PW1 Sukhdeo, thus, goes to show that out of short married life of

13 months of deceased Meera, she had not resided with the

appellant/accused for one month, and for further six months,

everything was well in her matrimonial life. Thus, now one will

have to ascertain whether in remaining six months period of

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married life of deceased Meera, whether she was subjected to

cruelty by the appellant/accused.

11 During cross-examination of PW1 Sukhdeo, the

defence has got proved letters at Exhibits 21 and 23 written by

PW1 Sukhdeo to his brother-in-law i.e. the appellant/accused

Tukaram Kanade. From all these three letters, it is seen that the

relation between PW1 Sukhdeo and his brother-in-law i.e. the

appellant/accused Tukaram Kanade were very cordial. The fact

that during life time of his sister Meera, this witness PW1 Sukhdeo

got proper treatment by the appellant/accused on all occasions

when he visited the house of the appellant/accused goes to show

that married life of Meera was going on smoothly. PW1 Sukhdeo,

who appears to be working in the school and teacher by

profession has not explained what he meant by “harassment” by

the appellant/accused to his sister Meera. Merely using the word

“harassment” is not sufficient to infer cruel treatment to a married

woman as envisaged by explanation to Section 498A of the Indian

Penal Code. That apart, though as deposed by PW1 Sukhdeo

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narrations of Meera to him regarding treatment given to her by

the appellant/accused as well as her in-laws i.e. original accused

no.2 Changdeo Kanade and original accused no.3 Godhabai

Kanade were same, strangely enough, with the same evidence

against all these accused persons, the learned trial court has

chosen to acquit the in-laws of deceased Meera but convict the

appellant/accused.

12 PW2 Kisan Illay, who is father of deceased Meera, has

deposed that during her four to five visits to parental house, his

daughter Meera disclosed to him that her husband demanded

Rs.20,000/- for securing permanent employment and for that

purpose, harasses her. This witness further deposed that eleven

days prior to her death, Meera had been to his house and told him

that her husband and father-in-law had threatened her by uttering

not to return, if she failed to bring the amount of Rs.20,000/-.

Here also, evidence of PW2 Kisan is as vague as it can be to

establish cruelty to a married woman. Losing of normal frame of

mind is required for establishing legal cruelty. For that purpose,

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the prosecution is enjoined to establish how a married woman was

treated by either her husband or in-laws. Using the word

“harassment” is not sufficient to enable the court to infer the

treatment given by the husband or in-laws to a married woman.

13 To crown this all, the defence has examined Heerabai

Kand as defence witness No.1, who is neighbour of deceased

Meera and appellant/accused Tukaram Kanade. Evidence of DW1

Heerabai Kand shows that everything was going on smoothly in

the married life of Meera with the appellant/accused. This

witness has spoken about illness of deceased Meera and the fact

that the appellant/accused had provided medical treatment to her.

This is also reflected from evidence of DW2 Dr.Nirmala Ganla.

Deceased Meera was suffering from Hepatitis-B and she was

admitted to the hospital of this witness by her husband.

14 The net result of foregoing discussion reveals that the

prosecution has failed to prove that the appellant/accused by his

willful conduct has subjected deceased Meera to cruelty as

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explained by explanation to Section 498A of the Indian Penal

Code. The learned trial court has failed to consider the matter in

proper perspective and ignored the requirement of law for

establishing the offence punishable under Section 498A of the

Indian Penal Code. The impugned judgment and order of

convicting the appellant/accused, as such, cannot be sustained,

and therefore, the order :

ORDER

i) The appeal is allowed.

ii) The impugned judgment and order dated dated 28 th
September 1991 passed by the learned 9th Additional
Sessions Judge, Pune, in Sessions Case No.319 of 1994,
thereby convicting the appellant/accused for the offence
punishable under Section 498A of the Indian Penal Code, is
quashed and set aside.

iii)The appellant/accused is acquitted of the offence punishable
under Section 498A of the Indian Penal Code. His bail
bonds stand cancelled.

iv)Fine amount, if any, imposed on the appellant/accused, and
paid by him, be refunded to him.

(A. M. BADAR, J.)

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