Bombay High Court
Gulabrao Sakharamji Ingle vs The State Of Maharashtra on 14 September, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal118.00
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 118 OF 2000
Gulabrao s/o Sakharamji Ingle,
Aged about 48 years,
R/o Sawali, P.S. Ladkhed, Tq. Darwha,
District Yavatmal. .... APPELLANT
VERSUS
The State of Maharashtra,
through P.S.O. Police Station Ladkhed,
District Yavatmal. .... RESPONDENT
______________________________________________________________
Ms. F.N. Haidari, Advocate for the appellant,
Shri A.V. Palshikar, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 14
SEPTEMBER, 2017.
th
ORAL JUDGMENT :
The challenge is to the judgment and order dated 07-4-2000 in Sessions Trial 44/1999, delivered by the learned 3 rd Additional Sessions Judge, Yavatmal, by and under which the appellant (hereinafter referred to as the "accused") is convicted for offence punishable under Section 498-A of the Indian Penal Code and ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 ::: 2 apeal118.00 is sentenced to suffer rigorous imprisonment for three years and additionally to pay fine of Rs.2,000/-. The accused faced trial for offences punishable under Sections 304-B and 498-A read with Section 34 of the Indian Penal Code alongwith Kiran Gulabrao Ingle (son) and Smt. Vimal Gulabrao Ingle (wife).
2. The trial Court acquitted Kiran and Vimal (accused 1 and accused 3 respectively) of offences under Sections 304-B and 498-A read with Section 34 of the Indian Penal Code. The accused is, however, acquitted of offence punishable under Section 304-B of the Indian Penal Code and convicted for offence punishable under Section 498-A of the Indian Penal Code.
3. The prosecution case as is culled out from the first information report dated 17-11-1998 lodged by P.W.1 Anna Gaikwad is that his daughter Sarika married Kiran Ingle (accused 1) on 22-5-1998 at village Dudhgaon, Tahsil Darwha, District Yavatmal. P.W.1 states in the report that an amount of Rs.7,000/- was given to accused 1 Kiran and his relatives. P.W.1 further states in the report that after the marriage, the husband and the father and mother of husband were asking Sarika to bring an amount of Rs.10,000/- from ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 ::: 3 apeal118.00 P.W.1. He states that Sarika came to Dudhgaon on the occasion of Diwali festival and narrated that the accused beat her twice or thrice. Since Diwali, Sarika was in her parental house. On 06-11-1998 the mother-in-law of Sarika (Vimal accused 3) who is also the sister of the informant P.W.1, came to Dudhgaon with Panjab Ingle and requested P.W.1 and his wife that they be permitted to take Sarika to her matrimonial home. P.W.1 and his wife were not ready to send Sarika to her in-laws house. However, Sarika's daughter-in-law and Panjab Ingle assured that she would be taken at their risk. The first informant states that on 22-11-1998 he was informed that Sarika consumed poison. Sarika expired at 12-30 in the night. The first information report alleges that the three accused I.e. husband, father-in-law and mother-in-law subjected Sarika to physical and mental harassment and killed her by administering poison since Sarika did not bring Rs.10,000/- as dowry.
4. On the basis of the first information report, offences punishable under Sections 304-B and 498-A read with Section 34 of the Indian Penal Code was registered, investigation ensued and ultimately charge-sheet was submitted in the court of Judicial Magistrate First Class, Darwha who committed the case to the Sessions ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 ::: 4 apeal118.00 Court.
5. The learned Sessions Judge framed the charge vide Exhibit
6. The accused pleaded not guilty and claimed to be tried.
6. The prosecution has examined nine witnesses including P.W.1 Anna, who is the father of the deceased, P.W.2 Asha, who is the mother of the deceased, P.W.3 Kashinath Bhise a relative, P.W.4 Shrikant Ingle, cousin of accused 1 and P.W.5 Rekha Bhise, sister of the deceased. The defence as is discernible from the statement recorded under Section 313 of the Criminal Procedure Code is of total denial and false implication.
7. Heard Ms. Haidari, learned Advocate for the accused and Shri A.V. Palshikar, learned Additional Public Prosecutor for the respondent/State.
8. Ms. Haidari, learned Advocate for the accused submits that the evidence on record does not establish the necessary ingredients of Section 498-A of the Indian Penal Code. She would submit, that it is not sufficient to allege and prove an unlawful ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 ::: 5 apeal118.00 demand, the prosecution must prove beyond reasonable doubt that the accused subjected the woman to ill-treatment or harassment to coerce her or her family to fulfill the unlawful demand. The short submission of the learned Counsel for the accused is that the prosecution witnesses have vaguely and generally stated that the accused demanded Rs.10,000/- from the family of the deceased. However, there is no evidence on record to establish that the deceased Sarika was subjected to ill-treatment with the intention of coercing the deceased or her family to satisfy the alleged demand of Rs.10,000/-.
9. Ms. Haidari, learned Advocate invites my attention to Section 498-A of the Indian Penal Code, which 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 imprisonment for a term which may extend to three years and shall also be liable to file.
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 scrutiny or is on account of failure by her or any person ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 ::: 6 apeal118.00 related to her to meet such demand.)"
Section 498-A of the Indian Penal Code was inserted by Act 46 of 1983, with the object of preventing torture and ill-treatment to a woman by her husband or by relatives of her husband. In order to bring home the charge under Section 498-A of the Indian Penal Code, it would be necessary for the prosecution to prove that the woman was subjected to cruelty as defined in the explanation to Section 498-A of the Indian Penal Code. 'Cruelty' is defined to mean 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) and harassment of a woman whether such harassment is with view to coercing 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.
10. It is well settled that not every kind of cruelty constitutes an offence under Section 498-A of the Indian Penal Code. Cruelty for the purpose of Section 498-A of the Indian Penal Code may be different from cruelty envisaged under other statutory provisions ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 ::: 7 apeal118.00 including the cruelty necessary to establish a matrimonial misconduct or offence.
11. Ms. Haidari, learned Advocate would submit that if the evidence on record is tested and scrutinized on the touchstone of the articulation of the Hon'ble Apex Court, the alleged demand, even if it is assumed arguendo that such a demand was made, will not constitute cruelty within the meaning of Explanation (a) and (b) of Section 498-A of the Indian Penal Code.
12. The learned Additional Public Prosecutor Shri A.V. Palshikar for the respondent/State supports the judgment impugned. The learned Additional Public Prosecutor submits that the conviction of the accused is more than justified since the evidence on record clearly and cogently establishes that the accused subjected the deceased Sarika to cruelty.
13. The evidence on record will have to be tested on the anvil of the enunciation of law by the Hon'ble Supreme Court and the statutory definition of cruelty within the meaning of Explanation (a) and (b) of Section 498-A of the Indian Penal Code. The father of the ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 ::: 8 apeal118.00 deceased who is examined as P.W.1 has deposed that when Sarika visited the parental home on the occasion of Diwali, she complained that the accused was insisting that Rs.10,000/- be brought from her parental house and was harassing her to fulfill the said demand. The witness fairly admits that Sarika did not disclose anything else and the only complaint was that the accused was subjecting her to harassment. P.W.1 then deposes that he and Sarika's mother were reluctant to send Sarika to her matrimonial home. However, since accused 3, who is also the sister of P.W.1, and one Panjab Ingle the brother of the accused assured P.W.1 that Sarika will be treated properly, P.W.1 consented to sending Sarika to her matrimonial home. P.W.1 then deposes that he received the message after 5 to 7 days of Sarika returning to her matrimonial home that she consumed poison and was admitted in the hospital. P.W.1 states that he and Sarika did not have any conversation at the hospital and Sarika was not in a position to talk.
14. The learned Counsel for the accused would urge, that firstly there is only a bald statement that the accused asked Sarika to bring Rs.10,000/- and that according to Sarika, she was harassed. Such statement, in the absence of any evidence to show that the ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 ::: 9 apeal118.00 deceased was ill-treated to coerce her or her family to fulfill the demand, would not take the case of the prosecution any further, is the submission. The learned Advocate would further urge, that the statement attributed to deceased Sarika is not admissible even under Section 32(1) of the Indian Evidence Act, 1872. She would urge, that the trial Court having recorded a finding that charge under Section 304-B of the Indian Penal Code is not brought home, the only other charge was charge under Section 498-A of the Indian Penal Code simplicitor. The cause of death of Sarika or the circumstances leading to death, was not an issue in deciding whether the prosecution has proved the offence under Section 498-A of the Indian Penal Code. The learned Counsel for the accused would urge that statement attributed to the deceased are, therefore, hearsay and not saved by Section 32(1) of the Indian Evidence Act. Reliance is placed on the judgment of the Hon'ble Supreme Court in the case of Bhairon Singh Vs. State of Madhya Pradesh reported in 2010 ALL SCR 213.
15. The mother of the deceased is examined as P.W.2. She states that Rs.7,000/- was paid as dowry to accused 2 before the marriage and that accused 2 was insisting that Sarika should bring Rs.10,000/- from her parental house. P.W.2 also states, consistent to ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 ::: 10 apeal118.00 what is deposed by P.W.1, that P.W.1 and P.W.2 were both reluctant to send Sarika to her matrimonial home and were persuaded to do so by accused 3 and the brother of accused Gulabrao. The learned Counsel for the accused contends that the evidence would reveal that Rs.7,000/- was the amount handed over to accused 2 to purchase the clothes for accused 1 Kiran and such amount cannot be considered as dowry. She would reiterate that the alleged demand for Rs.10,000/- is a vague and general allegation and that in any event, there is no evidence to suggest any ill-treatment to coerce the deceased and her family to fulfill the said demand.
16. P.W.3 Kashinath Bhise is the father-in-law of the sister of the deceased. He speaks of the payment of Rs.7,000/-. However, according to P.W.3, the said amount was paid to accused 1 Kiran. P.W.3 then states that he was informed by P.W.2 that Gulabrao was demanding Rs.10,000/- and that Sarika was not willing to go to marital home. The later statement is obviously hearsay and must be kept out of consideration.
17. P.W.4 Shrikant Ingle is the cousin of accused 1 and is examined only to bring on record that he took Sarika and accused 1 ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 ::: 11 apeal118.00 Kiran to the Primary Health Centre for medical treatment. The evidence of P.W.4 is not material in the contest of the issue for consideration. For the record, it may be noted, that, in the cross- examination, P.W.4 attempts to support the accused and states that P.W.4 and his family did not come to know of any quarrel in the Sarika's maternal home and ill-treatment meted out to Sarika.
18. Rekha, the elder sister of the deceased, is examined as P.W.5. She speaks of the payment of Rs.7,000/- given to accused 1 as dowry and that Sarika disclosed to her that she was being subjected to harassment by all the accused. P.W.5 states that accused 1 was demanding Rs.10,000/- and that accused 1 Kiran used to beat Sarika and accused 2 and accused 3 used to "intimidate" her. P.W.5 has further deposed that accused 2 and accused 3 had threatened Sarika that she would be administered poison in the event she fails to bring the money from her father. P.W.5 speaks of the complaint made by the deceased Sarika when she visited parental home on the occasion of Diwali. The evidence of P.W.5 is attacked on the ground that the same is not consistent with the evidence of other prosecution witnesses and more importantly the evidence is not consistent with the evidence of the father and mother of the deceased Sarika. The other criticism is ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 ::: 12 apeal118.00 that the evidence must be discarded as several omissions are brought on record and duly proved and the omissions are significant enough to tantamount to contradiction. Perusal of paragraph 5 of the cross- examination of P.W.5 persuades me to agree of the submission of the learned Advocate for the accused that the evidence of P.W.5, who incidentally is the only witness who is leveling serious allegations against all the accused, is not reliable or trustworthy.
19. Even de hors the submission of the learned Advocate for the accused that every statement which is attributed to the deceased Sarika would be hearsay and not saved or made admissible under Section 32(1) of the Indian Evidence Act since the cause of death or circumstances leading to death was not an issue, even if the evidence of the prosecution witnesses P.W.1 to P.W.4 is taken at face value, the necessary ingredient or sine qua non for constituting an offence under Section 498-A of the Indian Penal Code is not established. A vague allegation that Rs.10,000/- was demanded which is not supported by any evidence to suggest that any ill-treatment was meted out, is grossly inadequate to bring home the charge. The words "harassment" or "ill- treatment" or the "life" cannot be chanted as a mantra and in the absence of necessary details and particulars of harassment and proof ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 ::: 13 apeal118.00 thereof, it would be fallacious to record a finding that cruelty within the meaning of Section 498-A, Explanation (a) and (b) of the Indian Penal Code is established. I have already recorded a finding that the evidence of P.W.5 is not at all confidence inspiring and must be discarded.
20. I am afraid, I am not persuaded to agree with the learned Sessions Judge that the offence under Section 498-A of the Indian Penal Code is made out. The judgment and order dated 07-4-2000 delivered by the learned 3rd Additional Sessions Judge, Yavatmal in Sessions Trial 44/1999 is set aside. The accused is acquitted of the offence punishable under Section 498-A of the Indian Penal Code. Bail bond of the accused shall stand discharged. Fine paid by the accused, if any, shall be refunded to him.
The appeal is disposed of accordingly.
JUDGE adgokar ::: Uploaded on - 15/09/2017 ::: Downloaded on - 17/09/2017 02:33:51 :::