Criminal Appeal No. 126 of 2019 · Bombaybench High Court
Case Details
criappeal126.2019 chamber-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 126 OF 2019Santosh Asaram Rathod,Age; 27 years, Occ; Service,R/o; Ghonsi Tanda,Tq. Ghansawangi,District; Jalna. ...Appellant(Orig. Accused No. 1)VERSUSThe State of Maharashtra ...Respondents (Orig. Complainant) …Advocate for the appellant : Mr. Sudarshan J. Salunke APP for Respondent State : Mr. D.J. Patil... CORAM :ABHAY S. WAGHWASE, J. Date : 02.05.2024.JUDGMENT : 1.By consent of both the parties, appeal is taken upfor final hearing and disposal at the admission stage itself. 2. The correctness, legality and maintainability ofjudgment and order of conviction passed by learned AdditionalSessions Judge, Jalna, in Sessions Case No. 27 of 2013 dated
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criappeal126.2019 chamber-2- 11.01.2019, recording guilt of husband for offence underSection 498-A of the Indian Penal Code [IPC], is challengedherein by way of instant appeal.PROSECUTION STORY IN SHORT IS AS UNDER 3.Prosecution case in brief is as under :Deceased Ravina daughter of the informant PW-2Ashok, was married with present appellant Santosh sixmonths prior to the incident. At the time of marriage anamount of Rs. 1.5 Lakhs was decided to be given by way ofdowry and even an amount of Rs. 1 Lakh was duly paid.According to the prosecution for remaining amount ofRs.50,000/- husband and in-laws were ill-treating deceasedRavina. After one month of her co-habitation with accused,there was illegal demand of money for setting up a groceryshop and on account of non fulfillment of such demand, shewas subjected to cruelty.4.It has also the case of the prosecution that thehusband was suspecting fidelity of wife Ravina and harassedher both physically and mentally and precisely getting fed up
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criappeal126.2019 chamber-3- of the same, Ravina immolated herself and resultantlysuffered 89% burn. While under treatment her dyingdeclaration was recorded.5.However, she succumbed to the burns on02.10.2017 and after last ritual father her set the law intomotion.6.The husband and in-laws were charge sheeted andtried by the learned Additional Sessions Judge, Jalna, whoappreciated the oral and documentary evidence and acquittedin-laws from all offences i.e. from Section 304-B, 498-A, 323,504, 506 r/w 34 of the Indian Penal Code (IPC) and underSection 3 & 4 of the Dowry Prohibition Act, however, learnedtrial Judge held the appellant husband Santosh alone guiltyfor the offence punishable under Section 498-A of the IPC.Hence instant the appeal at his instance.SUBMISSIONS On behalf of the appellant : 7.On behalf of appellant, learned Counsel pointed criappeal126.2019 chamber-4- out that apparently there is false implication. According tohim, prosecution has miserably failed to establish its case andcharges beyond the reasonable doubt. He further pointed outthat necessary ingredients for attracting even offence underSection 498-A IPC are patently missing from the prosecutionevidence. He pointed out that on the same set of evidence,in-laws/parents of appellant are already acquitted butsurprisingly, on same evidence husband alone is held guilty.According to him, there is no proper reasoning by the trialJudge for doing so. He also pointed out that specific instancesand nature of ill-treatment are not stated by any of theprosecution witnesses. According to him, there was noprevious complaint of any nature and even no complaint waslodged on 26.09.2012 i.e. on the day of burns suffered byRavina. Rather according to him, false and afterthoughtcomplaint is lodged after due deliberation later on. He pointedout that police machinery recorded dying declaration on 26th SSeptember, itself. But on same day also FIR is not lodged forthe best reasons known to the investigating machinery.8.He pointed out that the grand father of Ravina criappeal126.2019 chamber-5- claimed to have received oral D.D. Informant father had notreceived any oral D.D. Moreover, grand-father did not lodgecomplaint on receipt of oral D.D. and therefore, it is hissubmission that there is apparently false implication out ofannoyance of loosing victim who immolated herself in anger. 9.Lastly, he submitted that inspite of such weakevidence on record, learned trial Judge recorded guilt.According to him, there is improper appreciation of bothevidence as well as law and hence he seeks indulgence at thehands of this Court for setting aside the impugned judgment.On behalf of the State : 10.Learned APP strongly opposed the appeal bypointing out that barely six months after the marriage, therewas ill-treatment to the deceased, on account of demand ofdowry. He pointed out that on account of non fulfillment ofdemand, husband and in-laws ill-treated and harassed thevictim. She promptly reported it to her parents. The familymembers like father, grand-father are examined by theprosecution. He further pointed out that the husband even criappeal126.2019 chamber-6- suspected her character and thereby made her life miserable.According to him, precisely for such maltreatment andharassment, deceased poured kerosene on her person and sether on fire. Consequently, the husband is solely responsibleand therefore, he is correctly held guilty. According to him,the learned trial Court has correctly appreciated the evidenceand rightly convicted the appellant/husband. According tohim, there is no merit in the appeal and so he prays fordismissal of the appeal.GIST OF THE PROSECUTION EVIDENCE IN TRIAL COURT11.Prosecution has examined following eight witnessesto establish its case:PW-1 Vasant, who acted as pancha to spot panchanama,has not supported the prosecution case.PW-2 The informant/father, Ashok has examined at Exh.63. The sum and substance of his evidence is thathis daughter Ravina was married with presentappellant Santosh. He deposed that the dowryamount of Rs. 1.5 lakhs was fixed. Out of which criappeal126.2019 chamber-7- 1 lakh was paid. After one month husband and in-laws put up demand of remaining dowry for settingup a grocery shop. His daughter informed him aboutthe demand as well as ill-treatment by in-laws.According to him, on 26.09.2012, around 5.30 p.m. amessage was received about the burn by Ravina.They all went to the hospital. Ravina died on02.10.2012 and after her funeral, Ashok lodgedreport to the police station.PW-3 Uttam, the neighbour, who did not support theprosecution case.PW-4Rangrao, is Police Head Constable, who recordeddying declaration Exh. 74.PW-5Deshmukh, he also recorded dying declaration on theinformation given by the father of the deceasedAshok.PW-6Dr. Raut, who has issued endorsement of fitness ofpatient to give statement.PW-7Babu, is the grand father, who deposed that aftermarriage the in-laws and husband ill-treated andharassed the deceased Ravina on account of demand criappeal126.2019 chamber-8- of dowry. He further learnt from the father of Ravinathat Ravina herself set herself on fire. Thereafter,they all visited the hospital. According to him, in thehospital Ravina told him about the ill-treatmentmeted to her at the hands of in-laws and husbandand therefore, she herself set her on fire.PW-8Vitthal, is the Investigating Officer, who narrated thatall efforts have been taken by him during theinvestigation till filing of the charge-sheet.12.On appreciation of evidence of above eightwitnesses, learned trial Court acquitted in-laws from allcharges but recorded guilt and conviction of appellanthusband alone that too for charge of 498-A IPC only.13.Before re-appreciating and re-analyzing theevidence, it is desirable to give a brief account of the settledlegal requirements and position while appreciating evidencefor charge and offence under section 498-A of the IPC.14.Law is fairly settled that, for attracting the charge under section498A of IPC, prosecution is duty bound to prove following essential criappeal126.2019 chamber-9- ingredients :- “(1)A woman was married; (2)She was subjected to cruelty; (3)Such cruelty consisted in - (i)any lawful conduct as was likely to drive suchwoman to commit suicide or to cause grave injury ordanger to her life, limb or health whether mental orphysical; (ii)harm to such woman with a view to coercing herto meet unlawful demand for property or valuablesecurity or on account of failure of such woman or any ofher relations to meet the lawful demand ; (iii)the woman was subjected to such cruelty by herhusband or any relation of her husband.”JUDICIAL PRECEDENT :15.As to what actually constitutes cruelty has been lucidly andsuccinctly dealt in the landmark case of Giridhar Shankar Tawade v.State of Maharashtra (2002) 5 SCC 177, where the Court dwellingupon the scope and purport of Section 498-A IPC has held as under: “The basic purport of the statutory provision is to avoid‘cruelty’ which stands defined by attributing a specificstatutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of inorder to ascribe a meaning to the word ‘cruelty’ as isexpressed by the legislatures : Whereas explanation (a) criappeal126.2019 chamber-10- involves three specific situations viz., (i) to drive thewoman to commit suicide or (ii) to cause grave injury or(iii) danger to life, limb or health, both mental andphysical, and thus involving a physical torture or atrocity,in explanation (b) there is absence of physical injury butthe legislature thought it fit to include only coerciveharassment which obviously as the legislative intentexpressed in equally heinous to match the physical injury :whereas one is patent, the other one is latent but equallyserious in terms of the provisions of the statute since thesame would also embrance the attributes of ‘cruelty’ interms of Section 498-A.” [emphasis added]Similar views are echoed in Gurnaib Singh v. State of Punjab(2013) 7 SCC 108, wherein it is held as under:“Clause (a) of the Explanation to the aforesaid provisiondefines “cruelty” to mean “any willful conduct which is ofsuch a nature as is likely to drive the woman to commitsuicide”. Clause (b) of the Explanation pertains to unlawfuldemand. Clause (a) can take in its ambit mental cruelty.”In State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15SCC 582, the Hon’ble Apex Court has observed that, “Harassmentsimplicitor is not cruelty. Only when such harassment is committedfor the purpose of coercing a woman or any other person to meet an criappeal126.2019 chamber-11- unlawful demand or property etc. alone would amount to crueltypunishable under Section 498-A IPC”. In Bhaskar Lal Sharma v. Monica (2009) 10 SCC 604, theHon’ble Apex court reiterated the essential ingredients for the saidoffence and pleadings which are necessary in that regard. Very recently in the case of K. Subba Rao v. The State ofTelangana (2018) 14 SCC 452, following observations are made:“6.The Courts should be careful in proceeding againstthe distant relatives in crimes pertaining to matrimonialdisputes and dowry deaths. The relatives of the husbandshould not be roped in on the basis of omnibus allegationsunless specific instances of their involvement in the crimeare made out.”ANALYSIS 16.PW-1 is the panch to the spot panchanama.17.On studying evidence of father PW-2, who isexamined at Exh. 63, the sum and substance is that sixmonths prior to the incidence his daughter was married toappellant. According to him, out of 1.5 lakhs dowry as agreed,1 lakh was paid and for remaining Rs. 50 thousand the criappeal126.2019 chamber-12- husband beat her. His daughter informed him about it and hegave understanding. Then he speaks of receiving message ofburns to his daughter on 26.09.2012, that while under goingtreatment she expired on 02.10.2012. After P.M., funeral, helodged report Exh. 64.18.On visiting his cross he seems to have answeredthat, matrimonial house of his other daughter Meera is 200feet away from the house of Ravina. While fixing marriage,people of Ghonsi Tanda were present but he is unable to givetheir names. According to him, his daughter talked to him onphone. He admitted that since 26.09.2012 up to 02.10.2012,he was in the hospital but till her death he did not lodgecomplaint of ill-treatment. He stated that he informed in thereport about accused/husband raising suspicion on Ravina,but he is unable to assign any reason as to why it is notwritten in the report.19.PW-3, neighbour did not support prosecution. 20.PW-4 is the constable who recorded dying criappeal126.2019 chamber-13- declaration Exh. 74. According to him, she narrated thathusband suspected her, beat her. That, on 26.09.2012, whenshe was with her in-laws, husband beat her and therefore,due to anger she poured kerosene on herself and set her onfire. In cross he admitted that he is unable to statewhether victim appended thumb impression of right hand orleft hand. He admitted that as per Exh. 75, Kadim JalnaPolice Station received statement on 27.09.2012.21.PW-5 is the PSO, who entertained report of PW-2father on 02.10.2012 and registered crime bearing No. 104 of2012 for offences punishable under section 304-B, 498-A,323, 504, 506, 34 of IPC and 3 and 4 of the Dowry ProhibitionAct.22.PW-6 is the Medical Officer, who gave endorsementof fitness of patient to give statement after PW-4 approached.23.PW-7, grant-father also stated that 1.5 lakhs wasfixed as dowry. 1 lakhs was paid and 50,000/- was remained. criappeal126.2019 chamber-14- Husband and in-laws demanded remaining dowry and ill-treated her. After getting news he visited hospital, where shenarrated to him that due to ill-treatment of family membersshe set herself on fire.24.PW-8 is the I.O, who carried the investigation andfiled the charge-sheet.25.On analyzing the above evidence it is emerging thatthe exact date of marriage has not been stated by the father orgrant-father. Informant father speaks about marriage takingplace prior to the incident dated 26.09,2012. Neither he, norhis father i.e. PW-7 are giving exact nature of ill-treatment orinstances of ill-treatment. They merely speak of harassmentor ill-treatment for remaining dowry. There is no independentwitness about fixed dowry or part payment. Accordinginformant, husband demanded money for setting grocery shopbut grand-father does not speak about it. Cross of informantshows the version about suspicion of character by husband isnot reported in FIR. Resultantly version to that extent inwitness box is improvised. Evidence of grant-father criappeal126.2019 chamber-15- is only about demand and ill-treatment. His evidence is silentabout suspicion on character. Even otherwise, suchaccusation is general in nature as both of them are notclarifying on whom husband suspected his wife had relationswith. Therefore, there is weak and fragile evidence about 498-A of the IPC.26.Though police machinery took steps to recorddying declaration on 26.09.2012, there is no lodgment of FIRon said D.D. Deceased died on 02.10.2012. After P.M. andritual, father seems to have lodged report i.e. regardingoccurrence which took place on 26.10.2012. Consequently FIRapparently delayed.27.On going through the contents of D.D., Exh. 74, itis emerging that deceased narrated that on 26.09.2012, whenall family members were in the house, husband beat her byraising suspicion, but on what suspicion was raised is unclearand obscured. She does not specifically state regarding whator with whom she was tried to be related to hold that therewas suspicion of her character. She merely speaks of pouringkerosene and igniting herself in the rage of anger. Solitary criappeal126.2019 chamber-16- instance of beating that day seems to have triaged theincident. Even otherwise, husband is acquitted from chargeunder Sectikon 304 or 306 of IPC. There is no materialsuggesting consistent or incessant cruelty to gravitate toattract Section498-A of IPC.SUMMATION 28.On critical analysis of above evidence, there is littleweak or no evidence on the point of ill-treatment or cruelty.FIR is apparently delayed one. On same set of evidence,parents-in-law are already acquitted. Nature and instances ofill-treatment are not coming on record. Hence in theconsidered opinion of this Court, with such quality of evidenceand in the light of above discussion, charge under Section498-A of the IPC cannot be recorded and upheld.29.In the considered opinion of this Court, there isapparently improper appreciation of evidence as well as law bythe trial Court. Hence the indulgence at the hands of thisCourt becomes necessary. Hence the following order criappeal126.2019 chamber-17- ORDERI)Criminal Appeal stands allowed.II) The conviction awarded to appellant-Santosh Asaram Rathod in Sessions Case No.27 of 2013 by the learned Additional SessionsJudge, Jalna on 11.01.2019 for the offencepunishable under Sections 498A of IndianPenal Code, stands quashed and set aside.III) The appellant stands acquitted of theoffence punishable under Sections 498A ofIndian Penal Code.IV) Bail bonds furnished by the appellantstands cancelled.V) The fine amount deposited, if any, berefunded to the appellant after the statutoryperiod is over.VI) It is clarified that there is no change asregards the order in respect of disposal ofmuddemal. [ ABHAY S. WAGHWASE ] JUDGEmahajansb/