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Vishnu Limba Chavan & Ors vs State Of Mah on 7 March, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO. 180 OF 2005

1. Vishnu s/o Limba Chavan,
Age 35 years, Occ. Labour

2. Babibai @ Bibabai w/o Vishnu Chavan
Age 28 years, Occ. Labour

Both R/o. Harising Nain Tanda
Raniuachegaon,Tq. Ghansawangi, …Applicants
District Jalna (Ori. Accused)

versus

The State of Maharashtra
Copy to be served on APP
High Court at Aurangabad …Respondent

…..
Mr. V. D. Salunke, advocate for the applicant
Mr. B.V. Virdhe, A.P.P. for the respondent
…..

CORAM : V. K. JADHAV, J.

Date of Reserving
the Judgment :29.01.2019

Date of pronouncing
the Judgment : 07.03.2019

JUDGMENT :-

1. By way of this criminal revision application, the applicants-

accused challenge the judgment and order of conviction passed by

the 2nd Ad-hoc Assistant Sessions Judge, Jalna dated 3.9.2001 in

Sessions Case No. 84 of 1994 thereby convicting the applicants for

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the offences punishable under Section 306, 498-A r.w. 34 of I.P.C.

For the offence punishable under Section 306 r.w. 34 of I.P.C. the

applicants are sentenced to suffer R.I. for three years and to pay a

fine of Rs.500/- each i/d to suffer R.I. for two months. However, there

is no separate sentence of the offence under Section 498-A r.w. 34 of

I.P.C. The conviction and sentence awarded by the learned Assistant

Sessions Judge, Jalna in Sessions Case No. 84 of 1994 is modified

by the learned Sessions Judge, Jalna in Criminal appeal No. 16 of

2001 by judgment and order dated 3.6.2005 and instead of

sentencing to suffer R.I. for three years the applicants are sentenced

to suffer R.I. for two years each. The order of fine is maintained.

2. Brief facts giving rise to the present criminal revision

application are as follows:-

a) The complainant P.W.1 Pralhad Rathod was having three

daughters and one son. Deceased Yamuna was his eldest daughter

given in marriage to accused No.1 Vishnu prior to 14 to 15 years

before the incident dated 13.10.1993. Accused No.1 is resident of

Raniunchegaon, Taluka Ghansawangi, District Jalna, which is about

20 to 30 kilometers away from Nirkheda i.e. place of complainant

P.W.1 Pralhad. Accused No.2 Suratbai is mother of accused No.1

Vishnu and cousin of P.W.1 Pralhad Rathod. The accused No.3 i.e.

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the applicant No.2 herein is second wife of accused No.1 Vishnu.

After the marriage, deceased Yamuna started cohabiting with her

husband at Raniunchegaon and she was treated well by her in laws

for about two years. Thereafter her husband and mother-in-law i.e.

accused Nos. 1 and 2 started ill-treating her and assaulting her. Her

husband used to make taunts that deceased Yanuma was having

dark complexion and used to assault her. During her visit to her

maternal house, deceased Yamuna used to narrate such incidents to

her father i.e. P.W.1 Pralhad. Deceased Yamuna gave birth to two

daughters by name Chandrakala and Subhadra. The accused Nos.

1 and 2 started ill-treating deceased Yamuna with more severity as

she could not beget a male child. They used to make taunting about

her inability to deliver a male child and used to beat her and used to

ask her to go to her maternal house and not to stay with them. The

accused No.1 Vishnu performed second marriage with accused No.3

i.e. applicant No.2 herein and she also started cohabiting with

accused No.1 Vishnu simultaneously with Yamuna.

b) Deceased Yamuna fed up with the ill-treatment and beatings at

the hands of accused persons, she returned to her maternal house at

Nirkheda. She narrated the incident of assault on her to her parents

and thereafter she filed a petition for maintenance in the court of

J.M.F.C. at Jalna. The Court awarded to her monthly maintenance

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allowance of Rs.600/-. Thereafter, the father-in-law of deceased

Yamuna had taken deceased Yamuna to her matrimonial house and

also transferred his two acres lace in the name of deceased Yamuna.

The dispute between accused No.1 and deceased Yamuna came to

be compromised and P.W.1 Pralhad sent Yamuna to Raniunchegaon

for cohabitation.

c) On 12.10.1993 at 12.00 midnight P.W.1 Pralhad had received a

shocking message that his daughter Yamuna had expired. On the

next day he visited Raniunchegaon and saw the dead body of

Yamuna at the house of accused persons. There was blood and

froth oozing from her nostrils and the mouth was smelling of poison.

On the same day at about 9.15 p.m. P.W.1 Pralhad lodged F.I.R. at

Ambad police station specifically disclosing the names of all the three

accused persons alleging that his daughter Yamuna committed

suicide due to the ill-treatment caused by all the accused persons.

d) On the basis of his complaint, crime No. I-183 of 1993 came to

be registered with Ambad police station for the offences punishable

under Sections 498-A, 306 r.w. 34 of I.P.C. The investigating officer

has prepared inquest panchanama Exh.56 and also drawn spot

panchanama. On the same day between 2.00 p.m. to 3.30 p.m. post

mortem was carried out on the dead body of Yamuna. As per post

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mortem report Exh.58 there were no external injuries on the body of

deceased Yamuna.

e) After completion of investigation, the investigating officer

submitted charge sheet on 16.4.1994 against all three accused

persons for the offences punishable under Sections 498-A, 306 r.w.

34 of I.P.C. in the Court of learned J.M.F.C. Ambad. The case was

committed to the Court of Sessions. The learned Judge read over

and explained the charge to the accused. The accused pleaded not

guilty to the same and claimed to be tried. In order to substantiate the

charge levelled against the accused, the prosecution has examined

in all four witnesses. After completion of the evidence of prosecution

witnesses, the statement of accused persons under Section 313 of

Cr.P.C. came to be recorded. The defence of the accused was that

they did not ill-treat deceased Yamuna and she committed suicide

due to poverty of accused No.1. The accused No.1 has also

contended that he performed the second marriage with accused No.3

Babibai with the consent of deceased Yamuna as Yamuna was not

having a male child.

f) After hearing both sides, the learned 2nd Ad-hoc Assistant

Sessions Judge, Jalna convicted the applicants for the offences

punishable under Section 306, 498-A r.w. 34 of I.P.C. for the offence

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punishable under Section 306 r.w. 34 of I.P.C. the applicants are

sentenced to suffer R.I. for three years and to pay a fine of Rs.500/-

each i/d to suffer R.I. for two months. However, there is no separate

sentence of the offence under Section 498-A r.w. 34 of I.P.C.

However, the learned Judge has acquitted the accused No.2 of the

offences punishable under Sections 306 r.w. 34 and 498-A r.w. 34 of

I.P.C. The appeal preferred by the applicants-accused bearing

Criminal Appeal No. 16 of 2001 came to be partly allowed by

modifying the sentence and instead of three years the applicants are

sentenced to suffer R.I. for two years each. The order of fine is

maintained by the Sessions Judge, Jalna by the judgment and order

dated 3.6.2005. Hence, this criminal revision application.

3. Learned counsel for the applicants-accused submits that there

is no direct evidence in this case. The prosecution case entirely rests

upon the circumstantial evidence. The courts below have overlooked

the fact that all prosecution witnesses are interested witnesses and

thus conveniently brushed aside the inconsistencies in evidence of

witnesses and these are filled in by assumption and presumption.

No cruelty of whatsoever in nature is proved by the prosecution. The

evidence of the prosecution witnesses is unreliable and

untrustworthy and not believable. Learned counsel submits that the

witnesses have narrated only two incidents of taunting and assaults

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over the period of 15 years of married life and finding is arrived at

that deceased was subjected to cruelty as would drive her to commit

suicide which does not seem to be conduct of normal human being.

There are improvements in the depositions of the witnesses as

compared to statement made under section 161 of Cr.P.C., as would

be evident from depositions of P.W.1 to 3 and P.W.4, who is

independent witness. The courts below have not considered the

admission of P.W.1 that deceased was treated nicely after birth of

second daughter and that she might have given consent to second

marriage of accused No.1. The learned counsel for the applicant

submits that no incriminating articles of whatsoever in nature were

found against he accused persons. The prosecution has also failed to

prove the mens-rea on the part of accused persons without which no

offence of abetment said to have been established. The learned

counsel for the applicants, thus submits that the criminal revision

application deserves to be allowed.

4. Learned A.P.P. for the respondent-State has supported the

judgment and order of conviction passed by the courts below. The

learned A.P.P. submits that the evidence of P.W. 1 and 2, who are

parents of deceased is consistent, reliable and trustworthy. They

have deposed about ill-treatment being extended to deceased

Yamuna by the present applicants for various reasons. The learned

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A.P.P. submits that just before 12 days of death of Yamuna, she had

been to parents house by leaving her two minor daughters at her

matrimonial home. The same speaks about the severity of ill-

treatment being extended to deceased Yamuna. She was subjected

to severe beatings by the husband i.e. applicant No.1 herein and

even applicant No.2 has assaulted her by showing her sickle. Both

the courts below have thus rightly convicted the applicants for the

offences punishable under Sections 306, 498-A r.w. 34 of I.P.C..

There is enough evidence to conclude that the present applicants

have abetted the commission of suicide by deceased Yamuna. The

prosecution has succeeded in proving the cruelty as defined under

Section 498-A of I.P.C. There is no substance in the criminal revision

application and the same is liable to be dismissed.

5. I have heard learned counsel for the applicants and the

learned APP for the respondent State. I have perused the memo of

revision application, annexures thereto and the record and

proceedings.

6. P.W.1 Pralhad, father of deceased Yamuna and P.W.2

Jhamabai, mother of deceased Yamuna, are the important witnesses.

According to P.W.1 Pralhad, deceased Yamuna was treated well by

her husband for 2 to 4 years and deceased Yamuna had begotten

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two daughters out of her marital wedlock. P.W.1 Pralhad has

deposed that four years after her marriage, deceased Yamuna came

to their house. She told them that her husband (applicant No.1

herein) was ill-treating and assaulting her for the reason that she had

dark complexion. The applicant No.1 husband had no interest in her.

He has further deposed that he allowed his daughter Yamuna to

reside with him for about 12 months. Thereafter, deceased Yamuna

had filed an application for grant of maintenance against her husband

in the Court at Jalna and an amount of Rs.600/- per month was

granted to Yamuna and her two daughters. P.W.1 Pralhad has further

deposed that 5 to 6 months thereafter, applicant No.1 Vishnu

(husband of deceased Yamuna) came to him and initiated the

compromise talks. He had also shown willingness to take Yamuna to

his house for further co-habitation. P.W.1 Pralhad showed his

willingness to settle the dispute amicably and sent deceased Yamuna

for co-habitation on the condition that the agricultural land

admeasuring two acres should be transferred in the name of

deceased Yamuna and that has been done accordingly. He has

further deposed that about one month and three weeks thereafter

deceased Yamuna returned to him and told him that she was

subjected to beating by both the applicants (original accused Nos. 1

and 3). However, the brother of applicant No.1 Laxman came to

parents house and informed Yamuna that her minor two daughters

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are weeping. Thus, deceased Yamuna was sent to the matrimonial

home. Some 8 to 10 days thereafter, deceased Yamuna had

consumed poison and died in her matrimonial home.

7. P.W.1 Pralhad had admitted in para 6 of his cross examination

that deceased Yamuna died about 14/15 years after her marriage. He

had also admitted that for about 4 years after the marriage, deceased

Yamuna did not come to him and he did not go to her. He has also

accepted the possibility that his daughter Yamuna might have asked

applicant No.1 Vishnu to perform second marriage for having son as

Yamuna could not begot a son. He had further admitted that after

Yamuna resumed for cohabitation in terms of compromise, she had

begotten second daughter. He also admitted in same para 6 of the

cross examination that applicant accused No.1 Vishnu was treating

deceased Yamuna well after birth of second daughter.

8. There was no demand whatsoever in any manner and it is not

the case of the prosecution that deceased Yamuna was subjected to

any ill-treatment on account of non fulfillment of any demand.

Deceased Yamuna was treated well for near about 2/4 years as

deposed by P.W.1 Pralhad. It is difficult to accept that for four years

the applicant accused No.1 Vishnu never complained about her dark

complexion. P.W. 1 Pralhad has also accepted that his daughter

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Yamuna might have asked accused-applicant No.1 Vishnu to perform

second marriage for having a son, as she could not begot a son. It

thus appears that deceased Yamuna had given consent for the

second marriage and she was not subjected to any physical or

mental harassment on account of performance of second marriage.

After four years of marriage, deceased Yamuna had complained her

parents against applicant accused No.1 Vishnu and told them that

her husband used to tell about her dark complexion and no interest in

her. Deceased Yamuna had stayed with her parents at their house for

about 12 months. However, after resuming cohabitation in terms of

the compromise, she went to her matrimonial home for further

cohabitation and thereafter gave birth to the second daughter. P.W.1

Pralhad had also admitted that there was no ill-treatment extended to

her of any kind after birth of the second daughter. Deceased

Yamuna died after 14/15 years of her marriage. She was treated well

for 2/4 years. She had stayed in her parents house for about 1½

years. It thus appears that she had cohabited with the applicant

original accused No.1 Vishnu for about 10 years after giving birth to

the second daughter. The prosecution has not given details of ill-

treatment being extended to deceased for such a long period of 10

years on account of her dark complexion etc.

9. P.W.2 Jhamabai, who happened to be mother of deceased

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Yamuna, has deposed that deceased Yamuna was treated well for 5

to 6 years after the marriage and thereafter, applicant No.1 accused

Vishnu started saying that deceased Yamuna was having dark

complexion. She has not given details as to in what manner

deceased Yamuna was subjected to ill-treatment. According to her,

deceased Yamuna stayed with her for about two years. On the other

hand, P.W.1 Pralhad has deposed that deceased Yamuna had stayed

in their house for one year. It appears that P.W.1 Pralhad and P.W.2

Jhamabai have deposed about one incident which has taken place

some 1 ½ months prior to death. Deceased Yamuna had been to

their house alone by leaving her minor daughters at her matrimonial

home. However, there is no satisfactory evidence as to what led

deceased Yamuna to leave her matrimonial home even by keeping

her two minor daughters in the house. P.W.2 Jhamabai has not

deposed about any incident as to what led the applicant to assault

deceased Yamuna.

10. P.W.3 Bakilal brother of P.W.1 Pralhad has brought altogether

different story. He had deposed that deceased Yamuna was

subjected to ill-treatment for the reason that she had begotten only

female child. P.W.1 Pralhad had admitted in his cross examination

that accused applicant No.1 Vishnu had been to his house to resume

for cohabitation even after the maintenance was granted to his wife

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by the Court. P.W.1 Pralhad has also admitted in his cross

examination that after birth of second daughter, deceased Yamuna

was not subjected to any ill-treatment.

11. It thus appears that P.W.1 Pralhad, P.W.2 Jhamabai and P.W.3

Bakilal have contradicted each other on material aspects. The

prosecution story is unbelievable. Furthermore, the presumption

under Section 113-A of Evidence Act is not attracted for two reasons.

Firstly, deceased Yamuna died after 14/15 years of her marriage and

secondly, the prosecution has miserably failed to prove the guilt as

defined in Section 498-A of I.P.C. So far as the applicant No.2 is

concerned, she has not played any role. It is not clear from the

judgment and order of conviction of the courts below as to why

applicant No.2, who happened to be the co-wife, came to be

convicted under Section 306 r.w. 498-A of I.P.C.

12. In the case of Ramu Shankar Wagh vs. State of

Maharashtra, reported in 2014 All M.R. (Cri) 1792, this Court has

held that the aspect of cruelty having not been proved, the penal

provisions of Section 498-A and 306 are not attracted.

13. In the instant case, I find no satisfactory evidence about the ill-

treatment. Sub-section (b) of Section 498-A, which is relevant for the

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present discussion, is reproduced herein below:

” 498-A(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 is on account of failure by her or any
person related to her to meet such demand.”

14. In a case of Ravindra Pyarelal Bidlan and others vs. State

of Maharashtra, reported in 1993 Cri.L.J. 3019, this Court at its

principal seat at Bombay has in para 26 made the following

observations:

“26. Sub-clause (b) of the explanation to S. 498A provides that
cruelty means harassment of the woman where such
harassment is with a view to correcting 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. Sub-clause (b)
does not make each and every harassment cruelty. The
harassment has to be with a definite object, namely to coerce
the woman or any person related to her to meet an unlawful
demand. Hence, mere harassment by itself is not cruelty. Mere
demand of property etc. by itself is also not cruelty. It is only
where harassment is shown to have been committed for the
purpose of coercing a woman to meet the demands that is
cruelty and this is made punishable under the section. In other
words, it is not every harassment or every type of cruelty that
would attract Section 498-A. It must be established that the
berating or harassment was with a view to force the wife to
commit suicide or to fulfill illegal demands of the husband or

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the in-laws”

15. In the case of Balaji Vithal Kinhale vs. The State of

Maharashtra, reported in 2018 ALL MR (Cri) 4038, this Court in

para 18 of the judgment, has made the following observations:-

“18. As regards the offence punishable under Section 306 of
IPC, a perusal of the said provision shows that there ought
to be material on record to prove that the appellant abetted
commission of suicide by deceased Narmada. As the death
of Narmada occurred within seven years of marriage, the
presumption under Section 113-A of the Act of 1872, would
come into operation in the present case. But, such
presumption coming into operation would be subject to the
condition that the prosecution was able to prove that the
appellant had subjected Narmada to cruelty. Such cruelty, as
per the explanation given in the said provision has the same
meaning as given in
Section 498-A of the IPC. Thus, merely
because death of Narmada took place within seven years of
marriage, the presumption under Section 113-A of the Act of
1872 would not operate against the appellant. As regards
the proof of cruelty under
Section 498-A of the IPC, cruelty
has been specifically defined in the explanation to the said
provision which is relevant.
Section 498-A of the IPC reads
as follows :

“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 imprisonment for a term which
may extend to three years and shall also be liable to fine.

Explanation.-For the purposes of this section, “cruelty”,

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means-

(a) any willful 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.”

16. In view of the observations made by this Court in the above

cited cases, the judgment and orders of conviction impugned in this

criminal revision application are not sustainable in the eyes of law. In

the result, the criminal revision application deserves to be allowed.

Hence, I proceed to pass the following order.

ORDER

I. The criminal revision application is hereby allowed.

II. The judgment and order of conviction dated 3.9.2001
passed by the 2nd Ad-hoc Assistant Sessions Judge,
Jalna in Sessions Case No. 84 of 1994 under
Sections
306,
498-A r/w 34 of IPC, sentencing thereby the
applicants/accused to suffer R.I. for three years and to
pay fine of Rs.500/- each, in default to suffer R.I. for two
months and the judgment and order dated 3.6.2005 in
Criminal Appeal No. 16 of 2001 passed by the Sessions
Judge, Jalna thereby modifying the sentence to suffer

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R.I. for two years instead of three years, are hereby
quashed and set aside.

III. The applicant/accused no.1 Vishnu Limba Chavan and
the applicant/accused no.3 Babibai @ Bibabai w/o
Vishnu Chavan are hereby acquitted of the offences
under
Sections 306, 498-A r/w 34 of IPC in Sessions
Case No. 84 of 1994.

IV. The fine amount, if deposited by the applicants/accused,
shall be refunded to them.

V. The criminal revision application is accordingly disposed
of. Rule made absolute.

( V. K. JADHAV, J.)

rlj/

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