Criminal Appeal No. 706 of 2002 · Bombaybench High Court
Case Details
2024:BHC-AUG:7664 CriAppeal-706-2002-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 706 OF 200201.Tukaram s/o Trimbak AaghavAge : 45 years, Occu : Agri.,R/o : Saradgaon, Taluka Parali,District Beed.02.Mandabai w/o Trimbak Aaghav.Age : 55 years, Occu : Household,R/o : As above.… Appellants[Orig. Accused]VersusThe State of Maharashtra… Respondents…..Mr. U. B. Bondar, Advocate for the Appellants.Mr. N. D. Batule, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J.Reserved on: 05.04.2024Pronounced on: 12.04.2024JUDGMENT : 1.Husband, mother-in-law and sister-in-law of deceased Tulsabai,who died unnatural death, were tried for commission of offencepunishable under Sections 302 and 498-A r/w 34 of the Indian PenalCode [IPC] vide Sessions Case No. 15 of 1997. Learned AdditionalSessions Judge, Ambajogai, vide judgment and order dated25.11.2002, acquitted accused no.2 Shobhabai from all charges, butconvicted present appellants, i.e. husband and mother-in-law of
Legal Reasoning
CriAppeal-706-2002-2- deceased, for commission of offence punishable under Section 498-Ar/w 34 of IPC and sentenced them to suffer rigorous imprisonment forthree years and to pay fine. Aggrieved by the same, instant appealhas been preferred.CASE OF PROSECUTION BEFORE TRIAL COURT2.Deceased Tulsabai was married to appellant/accused no1Tukaram. During their 13 years’ cohabitation, they had threedaughters and one son. According to prosecution, accused husbanddeveloped intimacy with accused no.2, i.e. wife of his younger brotherShivaji. Whenever Tulsabai went to her brother’s place, she dulyreported such relation. Informant brother and other villagers gaveunderstanding to accused to sever relation with accused no.2 and todiscontinue said relation. Further, according to prosecution, allaccused persons considered Tulsabai as a hurdle and they feared thatshe would broadcast such illicit relation and therefore they manuallystrangulated her. After funeral, brother set law into motion, on the strength ofwhich crime was registered and PW10, police officer posted at ParaliPolice Station, who was entrusted with the investigation, carried outthe same and on its completion, chargesheeted accused.
Legal Reasoning
CriAppeal-706-2002-3- 3.Trial was conducted by learned Additional Sessions Judge,Ambajogai, who, on appreciation of evidence, vide judgment dated25.11.2002, acquitted accused no.2 from all charges but convictedhusband and mother-in-law for commission of offence under Section498-A r/w 34 of IPC and acquitted them of charge under Section 302of IPC. Hence the appeal.SUBMISSIONSOn behalf of appellants : 4.Learned counsel for the appellants would submit that case ofprosecution has not been proved beyond reasonable doubt. Accordingto him, false allegations are levelled on mere suspicion of illicitrelation between accused nos. 1 and 2. He pointed out that in fact,accused husband was elder and accused no.2 was wife of his youngerbrother and moreover, they were all residing separately. Therefore,allegations of illicit relation are false, baseless and concocted. Hefurther pointed out that moreover, accused husband and deceasedTulsabai had cohabited for more than a decade and also havechildren. Therefore, accusations are patently false. 5.He next submitted that deceased went missing on 20.09.1996and after search when she was not found, husband himself reported CriAppeal-706-2002-4- missing to the police station on 22.09.1996. Dead body was found on23.09.1996 and till conducting postmortem and funeral, there was nolodgment of complaint. Even prior to that, there were no allegationsof illicit relation or ill-treatment. Such allegations are subsequentlyraised with ulterior motive on account of losing Tulsabai. FIR waslodged on 24.09.1996. Thus, according to him, there is inordinatedelay in lodging FIR and there is no plausible explanation for thesame. 6.Learned counsel took this court through the testimony of PW5informant brother Pandharinath and PW2 Mokind as crucial witnessesfor prosecution, but, according to him, the answers given by them incross patently show that their testimonies are full of materialomissions, contradictions and improvements. 7.He further pointed out that, here, there are omnibus allegationsof ill-treatment and harassment without specifying in what form ill-treatment was inflicted to deceased Tulsabai. He pointed out that veryessential ingredients for attracting Section 498-A IPC being patentlymissing and there being little or weak evidence in support of suchaccusation, learned trial court ought not to have recorded guilt andhence he criticizes the judgment of trial court on such count. CriAppeal-706-2002-5- 8.Lastly, he submitted that evidence of prosecution was patentlyweak and prosecution having not proved its case beyond reasonabledoubt or by adducing convincing evidence, the judgment underchallenge being patently illegal, erroneous and not sustainable in theeyes of law, he prays to set aside the same by allowing the appeal. On behalf of the State :9.Per contra, learned APP fervently opposed by submitting thathere, though accused and deceased had cohabited for 13 years, butdeceased had noticed and realized illicit relation developed by herhusband with his own sister-in-law accused no.2. Learned APPsubmitted that she had personally seen both of them in compromisingposition and had promptly reported it to her brother and familymembers. According to learned APP, villagers who were appraisedabout such relation, had joined complainant in giving understandingto accused. However, he did not pay heed and moreover issuedthreats to kill and further, all accused persons subjected deceased tomaltreatment and harassment. That, she was considered as a hurdlein their said illicit relationship and therefore she was done to death bystrangulation and there is postmortem finding to that extent. Hepointed out that only because deceased had become obstacle in the CriAppeal-706-2002-6- illicit relationship, she was ill-treated and done to death. According tolearned APP, maintaining illicit relation amounts to mental cruelty.Lastly, supporting the findings and conclusion reached by learnedtrial court, he prays to dismiss the appeal.EVIDENCE BEFORE THE TRIAL COURT10.It seems that prosecution has adduced evidence of as many asten witnesses to establish its case. Their role and status as well as sumand substance of their evidence is as under:PW1 Yogiraj is the pancha to inquest panchanama Exhibit 18.PW2 Mokind is an acquaintance of informant. In his evidence atExhibit 20 he deposed that he knew deceased who was marriedto accused 13 years prior to the incident. According to him,deceased met him four to five months prior to the incident.Complainant had called him to his house after arrival ofdeceased at Nandnaj from Saradgaon and had informed aboutaccused no.1 maintaining illicit relation with accused no.2 andto get it personally confirmed from Tulsabai. According to him,Tulsabai disclosed that husband Tukaram was having illicitrelation with accused no.2 and she had personally witnessedthere relation. This witness claims that she further told himthat she was being harassed under the impression of disclosingsaid relation to others. According to him, two months prior tothe incident, he himself, pandhari, Nathrao, Ranba and others CriAppeal-706-2002-7- visited Saradgaon, i.e. village of accused, to given himunderstanding and convince him not to continue illicit relation,it being totally immoral. He further deposed that about twomonths back, he learnt from Pandhari that his sister Tulsabaihad disappeared the therefore, he accompanied complainant toSaradgaon, but she was reported to have gone for commonmeal at the village and had not returned. Later on, it was learntthat dead body of Tulsabai was found in the field of accused atSaradgaon. After postmortem, last rituals were performed.According to him, accused nos. 1, 2 and 3, in furtherance ofcommon intention, caused death of Tulsabai by manuallythrottling her.PW3 Sominath is pancha to memorandum of disclosure at theinstance of accused Tukaram regarding showing spot where theincident took place. The memorandum is at Exhibit 22 andpanchanama is at Exhibit 23.PW4 Nathrao deposed that he is Police Patil of village Nandnaj.According to him, he met Tulsabai at the time of Diwalifestival. When invited for tea, she told that she was not happyin matrimonial house and she being maltreated by her husbandand in-laws on account of her husband having illicit relationwith accused no.2. That, he himself, complainant Pandhari,Dattu, Mokinda and others went to Saradgaon to giveunderstanding to the accused. After two to three days, Tulsabaiwent missing and finally her dead body was found in the fieldof Tukaram. According to him, death of Tulsabai was caused byaccused nos. 1, 2 and 3 by strangulating or by throttling. CriAppeal-706-2002-8- PW5 Pandharinath, informant brother, at Exhibit 28 deposed aboutcohabitation of his sister with accused Tukaram for 13 years,they residing at Saradgaon and having three daughters and ason. According to him, one and half years prior to the incident,his sister visited village Nandnaj and disclosed that accusedhusband had developed intimacy with accused no.2, i.e. wife ofhis brother Shivaji, and that she had personally witnessed it.Therefore, accused nos. 1, 2 and 3 ill-treated her and harassedher on allegation of defaming them about having illicit relation.He further deposed that he gave understanding to the accusednot to behave in such manner and at that time accused gavethreats to finish Tulsabai if she continues defaming him.According to him, accused nos. 2 and 3 threatened to causedeath of Tulsabai if she continue disclosing illicit relation. Hedeposed that ill-treatment continued and she was even drivenout of the house 7 to 8 times. He also deposed that he tookNathrao, Mokind, Dnyanoba, Dattu, Ranba to giveunderstanding to accused. Accused did not pay heed to therequest and on the contrary, he gave threats to Tulsabai. On20.09.1996 accused husband and Dnyanoba came in search ofTulsabai. According to him, on that day itself accused no.3 hadcome to Nandnaj and had requested this witness to giveunderstanding to his sister to behave properly and on failure,they would direct husband to beat her. He stated that thereforehe suspected some foul play. On 22.09.1996, his sister wasreported to be missing. Her dead body was found on23.09.1996 in the field. He alleged that accused nos. 1, 2 and3, to remove hurdle in illicit relation between accused nos. 1 CriAppeal-706-2002-9- and 2 and to avoid defamation, finished his sister and after lastrituals, he lodged report with Parali police station on24.09.1996 vide Exhibit 29.PW6 Dr. Goli is the autopsy doctor, who conducted postmortem andissued postmortem report opining death to be due to manualstrangulation.PW7 Vitthal did not support prosecution as he denied Tulsabaidisclosing anything against her husband and mother-in-law.PW8 Dehu stated that accused are having field in hisneighbourhood. Two days back, Tulsabai had come along withAnusayabai and other labours in the field of Awalichamala.Two days thereafter, he had seen dead body of Tulsabai andhad reported it to the police patil.PW9 Dnyanoba also did not support prosecution as he deposed thatShivaji never told him about extra-marital relation between hiswife and his brother Tukaram.PW10 API Shaikh is the Investigating Officer.11.On conducting trial for offence punishable under Sections 302and 498-A of IPC, learned trial Judge, on conclusion, reached to thefinding that prosecution failed to establish the charge under Section302 IPC against all the accused and gave them clean chit. However, CriAppeal-706-2002-10- husband and mother-in-law of Tulsabai are held guilty for offenceunder Section 498-A of IPC and are accordingly sentenced. Therefore, the only point for consideration here is, whethercruelty as contemplated under Section 498-A of IPC has been metedout to deceased Tulsabai so as to upheld the conviction recorded bythe learned trial Judge. LEGAL POSITION12.Before adverting to the evidence and testing it, it would be aptto give a brief account of the settled law, judicial precedents as wellas essential requirements for attracting offence under Section 498-Aof IPC.Law is fairly settled that, for attracting the charge under section498A of IPC, prosecution is duty bound to prove following essentialingredients :- “(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; CriAppeal-706-2002-11- (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 :13.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)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 : CriAppeal-706-2002-12- 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 anunlawful 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. CriAppeal-706-2002-13- 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.”ANALYSIS14.As stated above, here, evidence of PW2 Mokind, PW4 Nathraoand PW5 Pandharinath-informant brother is of relevance andsignificance as they are crucial witnesses on the point of 498-A of IPC.Let us analyze evidence evidence of PW5 informant brother first.15.According to PW5 Pandharinath, married life of his sisterTulsabai and accused Tukaram was of 13 years and they had threedaughters and a son. It is specific accusation that one and half yearsprior to the death, Tulsabai had come to his place at Nandnaj and haddisclosed that her husband Tukaram had developed intimacy with hissister-in-law accused no.2 Shobhabai i.e. wife of his own youngerbrother Shivaji. That, she had personally witnessed it. According tohim, accused nos. 1 to 3 therefore ill-treated and harassed Tulsabai on CriAppeal-706-2002-14- the allegation of defaming them about having illicit relation betweenaccused nos. 1 and 2. He claims that he personally approachedaccused and gave him understanding to him but according to thiswitnes, at that time, accused Tukaram gave threats to finish Tulsabaiif she continues defaming him for such relation. According to him,even Shobhabai and Mandabai both threatened to cause death ofTulsabai in case she continues to disclose defamatory relation.According to him, ill-treatment continued at the hands of accused. Hissister was driven out by beating 7 to 8 times. That, he along withNathrao, Mokind, Dnyanoba, Dattu, Ranba went to persuadeTukaram to treat Tulsabai well but he did not pay heed and on thecontrary, he gave threats to Tulsabai, and on 20.09.1996 she wentmissing and was finally found lying dead in the field on 23.09.1996and therefore he lodged report Exhibit 29.But while under cross, in para 10, following omissions arebrought :i)giving threats by Tukaram “in case Tulsabai has notstopped defaming him, then he would finish her off”.ii)That, Shobhabai and Mandabai giving threats ofcausing death of Tulsabai in case of defaming themabout illicit relation”. CriAppeal-706-2002-15- He is unable to state when there was ill-treatment or beating. Inpara 17, he admitted that he did not approach police on 20.09.1996and 21.09.1996. He even admitted that he did not lodge complainteither on 22.09.1996 or even on 23.09.1996 in spite of meetingpolice. He further admitted that even after seeing dead body he didnot immediately made complaint at the spot to the police up to thenight of 23.09.1996 and did not lodge report even in the morning of24.09.1996. In para 24, again omissions are brought to the following extentas regards the FIR is concerned :i)“even my sister Tulsabai has disclosed with me regardingpersonally witnessing the illicit affair of Shobhabai andTukaram”.ii)“request made by Tulsabai to advise Tukaram and to takeassurance of ceasing his relation with Shobhabai”.iii)“During visit along with others at Saradgaon, accused gavethreats since trying to advise him. 16.PW2 Mokind, who is examined at Exhibit 20, deposed that fourto five months prior to the incident, informant called him andinformed about illicit relation between accused nos. 1 and 2 and CriAppeal-706-2002-16- further asked him to get it confirmed from Tulsabai who had comehim. According to him, deceased disclosed him that accused no.1 washaving illicit relation with accused no.2 and she had personallywitnessed their relation. According to him, she further told that shewas harassed under impression of disclosing such relation to others.He claims that two months prior to the incident, he accompaniedinformant Pandhari, Nathrao, Ranba and others to give understandingto the accused. Then he claims that after two months, he learnt frominformant that his sister has disappeared and finally her dead bodywas found in the field. According to him, accused nos. 1 to 3, infurtherance of common intention, caused death of Tulsabai bythrottling. While under cross, PW2 answered that even prior to learningfrom informant, he was knowing about illicit relation betweenaccused nos. 1 and 2. He is unable to state on which festival or whichdate Tulsabai had come to village Nandnaj. In para 10 of his cross, headmitted that he did not disclose to police regarding ill-treatment todeceased Tulsabai by accused husband Tukaram, i.e. when he firstnoticed the dead body and when police were already present in thefield. He answered that police interrogated with him on 3rd day ofcremation. In further cross para 11, he admitted that on 25th CriAppeal-706-2002-17- September 1996, police were present at the time of last rituals but hehad not stated to the police about deceased disclosing him regardingillicit relation of her husband with accused no.2. He also admittedabout not disclosing to police that Tulsabai has disclosed aboutpersonally witnessing the illicit relation of accused Tukaram andShobhabai. He answered that he has stated to police that Tulsabai hasdisclosed that she was being harassed on the count of not to makedisclosure to anybody about illicit relation between her husband withShobhabai, but said material is not finding place in his statement. Heis unable to assign reason for the same.17.PW4 Nathrao, Police Patil, who has deposed that on theprevious Diwali, he had met Tulsabai when she had come to Nandnajand when she was invited for tea, she allegedly told him that she isnot happy in the matrimonial home, but is being ill-treated by her in-laws and husband on the count of her husband having illicit relationwith Shobhabai. He again claims that during second visit of Tulsabaito Nandnaj, she again complained about illicit relation beingcontinued. He claims that he had accompanied informant Pandhari,Dattu, Mokinda and others to given understanding to accused andthat, two to three days thereafter, Tulsabai went missing and herdead body was found in the field of accused. CriAppeal-706-2002-18- In cross, he admitted that deceased was his cousin sister. Headmitted that in his statement to police dated 25.09.1996, he has notstated the portion marked “B” regarding removal of dead body fromthe spot. In para 5, he admitted not informing police about they allgoing to village Saradgaon to convince Tukaram to cease illicitrelation., or about learning from Tukaram and Dnyanoba regardingTulsabai to be missing.18.On carefully sifting the evidence of PW5 informant, PW2 andPW4, it is noticed that they are merely making omnibus allegationsabout ill-treatment and harassment. Except PW5 informant, none ofthe other witnesses are consistent about ill-treatment so as toconstitute offence under Section 498-A IPC. Even brother does notspecify the nature of ill-treatment. PW2 Mokind has not statedanything except stating that she was harassed by accused. Moreover,evidence of PW2 and PW5 is found to be full of material omissionsand contradictions. Resultantly, there is no incessant ill-treatment ortormenting of such nature that it would amount to cruelty.19.PW2 in para 10 has candidly admitted about not disclosingpolice about ill-treatment to deceased at the hands of accused.Therefore, whatever he deposed in the witness-box is animprovement. Similarly, para 11 of his cross shows that there are CriAppeal-706-2002-19- material omissions about deceased informing him about shepersonally witnessing illicit relationship between her husband andShobhabai. It is also not disclosed in his statement that deceased washarassed for not disclosing anyone about said illicit relation betweenaccused nos. 1 and 2. 20.Likewise, brother PW5 alone is found to be deposing aboutaccused Tukaram giving threats to finish Tulsabai and evenShobhabai and Mandabai giving threats to cause death of Tulsabai, incase she continues to disclose defamatory relation. It is surprising thatin spite of hearing threats from accused persons, brother has notpromptly reported life threats to the sister by approaching police. Incross para 10, he has admitted that FIR is silent about threats givenby Tukaram that in case Tulsabai did not stop defaming him, hewould finish her. In para 17, he has admitted that in spite of learningabout deceased going missing on 20.09.1996, and in spite of arrival ofpolice at the spot at the time of inquest and last rituals, no allegationsabout illicit relation or ill-treatment was made to the police. Rather,complaint was lodged in the evening of 24.09.1996 i.e. after four daysof deceased going missing. Likewise, para 24 of his cross shows thatFIR Exhibit 29 is silent about his sister disclosing him regarding shepersonally witnessing illicit relation of Shobhabai and Tukaram. CriAppeal-706-2002-20- 21.Resultantly, evidence of brother PW5, PW2 and PW4 is notconvincing as regards commission of offence under Section 498-A ofIPC is concerned. Their testimonies are patently shown to be full ofmaterial contradictions, omissions and improvements.22.Learned APP would strenuously submit that deceased hadreported brother as well as PW2 Mokind about she personallywitnessing accused husband to be in compromising position withaccused no.2. On re-appreciating the testimonies, it is revealed thatthese witnesses are not speaking about seeing accused nos. 1 and 2 incompromising position. Rather, they are merely deposing abouthearing from deceased that she had personally witnessed theintimacy. This is omnibus allegation. What exactly she witnessed, hasnot come on record.According to learned APP, because of illicit relation, deceasedwas mentally harassed and was done to death. He seeks reliance onthe ruling of Hon’ble Madras High Court in Mrs. Pista Kanwar v. TheInspector of Police, M-6, Manali Police Station, Chennai[Crl.A.No.211 of 2022 decided on 25.09.2023]. CriAppeal-706-2002-21- 23.Therefore, precise allegation of prosecution is that illicitrelation between accused nos. 1 and 2 amounted to mental cruelty todeceased and also she was done to death for the said reason. Hence,Section 498-A is attracted. Admittedly, here, learned trial Judgealready acquitted all accused from charge under Section 302 of IPC.Accused no.2 sister in law of accused is already acquitted from 498-AIPC also. 24.In the line of above indictment, if evidence is put to minute andcareful scrutiny, it is emerging from informant brother’s evidence thatmarriage between accused husband and deceased was already 13years old. It is his evidence that one and half years prior to theincident, his deceased sister reported about illicit relation betweenaccused nos.1 and 2. Deceased allegedly went missing on 20.09.1996.Informant himself speaks about accused husband coming to informantin search of deceased. Missing has not been placed on record, whichis said to be lodged on 22.09.1996. Further, according to prosecution,deceased was found dead in the very field of accused on 23.09.1996.PW8 Dehu, an independent witness, has deposed that two days backdeceased had come along with Anusayabai. Said Anusayabai is notexamined for best reasons knows to the prosecution even when PW8deposed about deceased and Anusayabai rendering labour work in the CriAppeal-706-2002-22- field knows as Awalichamala, and dead body of deceased said to befound in said Awalichamala. According to PW8, two days thereafter,he had seen dead body of Tulsabai and he had given report to PolicePatil. Therefore, last person in the company of deceased was saidAnusayabai. But as stated above, she is not examined. There isnothing to show what investigation was carried out on missing reportallegedly lodged on 22.09.1996. How deceased reached the spotwhere she was found dead, is obscure. No incidence in proximity tothe day when dead body was noticed, about accused nos. 1 and 2continuing or indulging in affair, has apparently come on record. Inthe considered opinion of this court, it was essential in view of theprecise allegation of prosecution. 25.Similar situation was before the Hon’ble Apex Court in the caseof Pinakin Mahipatray Rawal v. State of Gujarat (2013) 10 SCC 48.The Hon’ble Apex Court, while dealing with the issue as to whetherrelationship in the form of extra-marital affair leads to cruelty withinthe meaning of Section 498-A IPC, held that, “mere fact that husbandhas developed some intimacy with another woman, duringsubsistence of marriage and failed to discharge his maritalobligations, as such would not amount to “cruelty”, but it must be ofsuch nature as is likely to drive the spouse to commit suicide to fall CriAppeal-706-2002-23- within the explanation to Section 498-A IPC”. The Hon’ble Apex Courtfurther elucidated that, harassment need not be in the form ofphysical assault and even mental harassment also would come withinthe purview of Section 498-A of IPC. Mental cruelty, of course variesfrom person to person, depending upon the intensity and degree ofendurance, some may meet with courage and some others suffer insilence, to some it may be unbearable and a weak person may think ofending one’s life.26.Likewise, in the case of Ghusabhai Raisangbhai Chorasiya v.State of Gujarat (2015) 11 SCC 753, the Hon’ble Apex Court opinedthat, even if illicit relationship is proven, unless some other acceptableevidence is brought on record to establish such high degree of mentalcruelty the explanation (a) to Section 498-A of the IPC which includescruelty to drive the woman to commit suicide, would not be attracted.The relevant para is reproduced hereunder :“True it is, there is some evidence about the illicitrelationship and even if the same is proven, we are of theconsidered opinion that cruelty, as envisaged under thefirst limb of Section 498-A IPC would not get attracted. Itwould be difficult to hold that the mental cruelty was ofsuch a degree that it would drive the wife to commitsuicide. Mere extra-marital relationship, even if proved, CriAppeal-706-2002-24- would be illegal and immoral, as has been said in PinakinMahipatray Rawal (supra), but it would take a differentcharacter if the prosecution brings some evidence onrecord to show that the accused had conducted in such amanner to drive the wife to commit suicide. In the instantcase, the accused may have been involved in an illicitrelationship with the appellant no.4, but in the absence ofsome other acceptable evidence on record that canestablish such high degree of mental cruelty, theExplanation to Section 498-A which includes cruelty todrive a woman to commit suicide, would not be attracted.” 27.Similarly, in the recent case of K. V. Prakash Babu v. State ofKarnataka [Criminal Appeal No(s). 1138-1139 of 2016 decided on22.11.2016], the Hon’ble Apex Court in para 16 observed as under:“16. The concept of mental cruelty depends upon themilieu and the strata from which the persons come fromand definitely has an individualistic perception regardbeing had to one’s endurance and sensitivity. It is difficultto generalize but certainly it can be appreciated in a set ofestablished facts. Extra-marital relationship, per se, or assuch would not come within the ambit of Section 498-AIPC. It would be an illegal or immoral act, but otheringredients are to be brought home so that it wouldconstitute a criminal offence. There is no denial of the factthat the cruelty need not be physical but a mental torture CriAppeal-706-2002-25- or abnormal behaviour that amounts to cruelty orharassment in a given case. It will depend upon the facts ofthe said case……” [emphasis laid]28.Keeping above settled legal position in mind, as stated above,here, firstly the alleged disclosure by deceased to brother and PW2about personally witnessing illicit relationship, is shown to bematerial omission and it is got proved through the InvestigatingOfficer. It is not finding place in the FIR as well as their statement topolice under Section 161 of Cr.P.C. Therefore, the allegation ofpersonally witnessing extra-marital relation between accused nos. 1and 2 has no supporting evidence. It seems to be a mere suspicionentertained by deceased. Brother has not specified exactly when ill-treatment was given or when deceased was beaten. He speaks of shebeing driven out of the house 7 to 8 times. But this is not coming fromthe testimony of PW2 and other witnesses.29.PW2 has admitted that he has not disclosed to the police at anypoint of time about ill-treatment at the hands of accused. Therefore,taking such circumstances into consideration, there is no evidence onthe point of subjecting deceased to cruelty so as to attract Section498-A IPC. CriAppeal-706-2002-26- 30.Went through the judgment in Mrs. Pista Kanwar (supra) reliedby learned APP and referred in para 22 above. However, in that case,facts were distinct. Moreover, observations of the Hon’ble Apex Courtreferred to in forgoing paras 25 to 27 would obviously prevail. 31.To sum up, here, there is no convincing and legally acceptableevidence to accept the prosecution case as regards the charge underSection 498-A is concerned. The essential ingredients to attract thecharge are patently missing and therefore, in the considered opinionof this Court, guilt so recorded by the trial court for said offencecannot be allowed to be sustained.32.Learned trial court has failed to appreciate the evidence and thematerial contradictions, improvements and omissions and even failedto apply correct law before reaching to the conclusion. Henceappellants succeed. Accordingly, I proceed to pass the followingorder:ORDERI.The appeal is allowed. CriAppeal-706-2002-27- II.The conviction awarded to the appellants i.e. 1)Tukaram s/oTrimbak Aaghav and 2) Mandabai w/o Trimbak Aaghav, bylearned Additional Sessions Judge, Ambajogai in Sessions CaseNo. 15 of 1997 under Section 498-A r/w 34 of IPC on25.11.2002 stands quashed and set aside.III.Both the appellants stand acquitted of the offence punishableunder Section 498-A r/w 34 of IPC.IV.The bail bonds of the appellants stand cancelled.V.Fine amount deposited, if any, be refunded to the appellantsafter the statutory period.VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre