High Court
Facts
-1- Cri.Appeal.54.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 54 OF 2004Bhimrao S/o. Bappaji Mundhe, Age : 31 years, Occu. : Agri., R/at. Lohigram, Tq. Sonpeth,Dist. Parbhani… Appellant(Orig. Accused No.1)VersusState of Maharashtra, Through Police Station Sonpeth, Tq. Sonpeth, Dist. Parbhani.… Respondent.…Mr. S. S. Rathi, Advocate for Appellant.Mr. A.A.A. Khan, APP for Respondent – State.... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 1st JULY, 2024PRONOUNCED ON : 5th JULY, 2024JUDGMENT : 1.In this appeal, there is challenge to the judgment andorder of conviction dated 06.01.2004 passed by 3rd AdditionalSessions Judge, Parbhani in Sessions Trial (S.T.) No. 57 of 2003,convicting appellant husband for offence punishable under section498A of Indian Penal Code (IPC).BRIEF BACKGROUND OF PROSECUTION CASE IN TRIAL2.Deceased Dnyaneshwari was married to appellant anddowry amount of Rs.45,000/-, ornaments, utensils, new clotheswere given to the groom appellant. That, everything was smooth -2- Cri.Appeal.54.2004for a period of two months. According to brother informant,accused persons entertained a wrong belief that, Dnyaneshwarihad received Rs.1,00,000/- after obtaining divorce from firsthusband. Rs.50,000/- were spent and remaining Rs.50,000/- werekept in the bank. For demand of said amount of Rs.50,000/-,accused persons started harassing Dnyaneshwari. She narratedabout it, when she visited on festival. Subsequently, there washarassment on account of demand of cot, cupboard, cooler, colourT.V. On 27.12.2002, message was received that Dnyaneshwariconsumed insecticide and she succumbed to the same. Therefore,PW2 Anant lodged report at Exh.33, which was made the basis ofregistration of crime, which was investigated by PW6 A.P.I.Bindusar Shinde, who after gathering evidence, charge-sheetedhusband and in-laws for commission of offence punishable undersections 498A and 302 of IPC. At trial, prosecution adducedevidence of in all six witnesses and also relied on documentaryevidence. On appreciation of oral and documentary evidence,learned trial Judge vide above judgment and order dated06.01.2004 acquitted all accused persons from charge of section302 of IPC, but convicted appellant husband alone that too foroffence punishable under section 498A of IPC, which is nowquestioned here by filing appeal. -3- Cri.Appeal.54.2004SUBMISSIONS On behalf of the Appellant :-3.Questioning the legality and maintainability of thejudgment, learned counsel for appellant pointed out that,prosecution has miserably failed to bring home the charge ofsection 498A of IPC beyond reasonable doubt. According to him,there are vague, general and bald allegations by merely allegingharassment without specifying or elaborating nature or instancesof such harassment. He pointed out that, apart from delayed FIR,testimonies of witnesses are found to be full of material omissions,which goes to the very root of the prosecution case itself. Insupport of such contention, learned counsel took this courtthrough the cross examinations faced by prosecution witnesses,more particularly, brother and brother-in-law of informant. Hewould submit that, only two such family members of Dnyaneshwariwere examined. According to him, independent witnesses, likePW5 Manik, immediate neighbour has also not supported theprosecution, and therefore, according to learned counsel,prosecution had no convincing or legally accepted evidence insupport of any of the charge and even evidence was lackingessential ingredients for attracting charge of section 498A of IPC.In support of above contention, learned counsel seeks reliance on
Legal Reasoning
-4- Cri.Appeal.54.2004ruling of this court in the case of Sharad Kondiba Walke v. State ofMaharashtra, 2010 All.M.R. (Cri.) 899; Ravindra Pyarelal Bidlanand Ors. v. State of Maharashtra, 1993 CRI. L.J. 3019. On behalf of Respondent – State :4.In answer to above, while supporting the judgment,learned APP would submit that, prosecution had established thecharges by adducing evidence of brother informant and hisbrother-in-law, to whom deceased Dnyaneshwari repeatedlydisclosed about the maltreatment at the hands of accused. That,whenever she came for festival, she promptly reported the acts ofaccused that only for demand of Rs.50,000/- and articles, therewas harassment. She was kept starved and kept out of the house.That, There is clear and convincing evidence to that extent. Thus,according to learned APP, cruelty being established in thebackdrop of above demand, learned trial Judge rightly convictedthe accused husband and so he prays to dismiss the appeal forwant of merits.SUM AND SUBSTANCE OF THE EVIDENCE ON RECORD5.PW1 Dr. Sidheshwar Halge, autopsy doctor, whodeposed and opined death to be due to consumption oforganophosphorous insecticide. -5- Cri.Appeal.54.2004 PW2 Anant informant, brother of deceased deposedabout his sister’s initial marriage with one Bapurao, but as he wasaddicted to liquor and he was beating, his sister obtained divorcefrom him and then her marriage performed with present appellantBhimrao. Dowry and articles were given in marriage. For two andhalf months, there were harmonious relations, but thereafterhusband and in-laws had misunderstanding that at the time ofdivorce from first husband, Rs.1,00,000/- were taken, out of which,Rs.50,000/- were spent and Rs.50,000/- were kept in bank and forsaid Rs.50,000/-, his sister harassed by all accused. She was beatenand kept out of the house. She reported when she came forfestivals. She also reported while weeping about demand of articleslike cot, cupboard, cooler and colour T.V. On 27th December,message of consumption or administering poison was received andtherefore, they all went. His sister has succumbed to the same.Therefore, after last rituals, he lodged report at Exh.33. PW3 Ramdas, brother-in-law of deceased, stated that,everything was smooth for one or two months. Somebody gavewrong information to accused that Rs.1,00,000/- were taken at thetime of first divorce, out of it Rs.50,000/- were spent andRs.50,000/- were remaining and precisely for the same, she washarassed by husband and in-laws. According to him, he came to -6- Cri.Appeal.54.2004know about this, when he had been to her parent’s house at thetime of Panchami festival and Diwali festival. Dnyaneshwarinarrated about ill treatment and harassment for cupboard, T.V.and fan. They beat her and kept her starved. Thereafter, on27.12.2002 telephonic message was received that Dnyaneshwari isdead. He claims that, he noticed black and bluish marks on herperson and further according to him, cause of death ofDnyaneshwari was beating, all accused holding her andadministering poison. He also acted as pancha to inquest (Exh.41),pancha to spot panchanama (Exh.42) and also pancha to seizure ofclothes (Exh.43). PW4 Pandurang, pancha to memorandum of seizure oftin box, did not support the prosecution. PW5 Manik a neighbour, deposed that, he had noknowledge as to what happened after second marriage. PW6 API Bindusar is the Investigating Officer, whonarrated all steps taken during investigation till filing charge-sheet.ANALYSIS6.Though appellant husband and in-laws were charge-sheeted for commission of offence punishable under sections 302and 498A of IPC, learned trial Judge, acquitted all accused -7- Cri.Appeal.54.2004including husband from charge under section 302 of IPC and in-laws are also acquitted from charge under section 498A of IPC.However, husband alone is held guilty for section 498A of IPC andis sentenced to suffer imprisonment.7.As seen above, there are testimonies of informantbrother PW2 Anant and PW3 Ramdas brother-in-law. PW5 Manikimmediate neighbour has not supported the prosecution.Therefore, entire case of prosecution hinges on the testimonies ofPW2 Anant brother and PW3 Ramdas brother-in-law. On carefully re-appreciating the informant’s evidence,it is emerging that, according to him, for two and half monthseverything was smooth. Thereafter, husband and in-laws, whoentertained a wrong belief that, Rs.50,000/- out of Rs.1,00,000/-received from previous divorce, were in the bank, his sister washarassed by all accused. According to him, when his sister came forfestival of panchami, she reported about harassment, beating andbeing kept out of the house for the amount. At the time of Diwali,when she came, she wept and reported about harassment forbringing cot, cooler, cupboard and colour T.V. Thus, what brotherinformant is repeatedly deposing is that, there was harassment todeceased by all accused. What was the form of harassment, when -8- Cri.Appeal.54.2004and by which of the accused is not elaborated by him. Apparently,thus, allegations are omnibus in nature implicating entire family.He has already admitted that, only parents of accused husbandresided with him, whereas accused nos.4 and 5 resided separately.When they all came together to inflict harassment is not clear.When there were instances of beating and by which of the accusedand also when she was kept out of the house, is not clarified byinformant brother. Mere term used is that, there was harassmentto his sister. In cross examination, he has admitted that, accusedhad irrigated land and his family was financially well off. Hisfurther cross examination carries material omissions, which aremissing from the report lodged by him i.e. regarding his sisterarriving for Nagpanchami festival and reporting harassment andbeing kept out of the house; his sister coming from Diwali festivaland weeping and reporting about demand and articles andharassment in that regard. Nature of articles demanded is also notfindings place in FIR. He admitted that, in spite of spending timehalf to hours in the police station and in spite of visit of police for¾inquest and spot panchanama, he did not lodge report. Apparently,in spite of occurrence taking place on 27.12.2002, report is lodgedon next day i.e. on 28.12.2002, without assigning reason fordelaying FIR. -9- Cri.Appeal.54.20048.On carefully re-appreciating and analyzing theevidence of PW3 Ramdas also, it is emerging that, he is resident ofZola, Tq. Gangakhed, Dist. Parbhani, whereas informant is residentof Waghbet, Tq. Parali, Dist. Beed and accused are shown to beresident of Lohigram, Tq. Sonpeth. Which all times he had occasionto go to informant’s place or to meet deceased, has not beenclarified by him. He too deposed that, Dnyaneshwari was harassedby her husband, parents-in-law accused nos.2 and 3 and accusednos.4 and 5. He claims that, he came to know about it, when he hadbeen to Waghbet during Panchami and Diwali festival and thattime, she herself narrated that there was ill treatment forRs.50,000/- and harassment for articles like cupboard, T.V. andfan. As like brother informant, he does not speak about demand ofcooler and cot being demanded. He also alleged that, there wasbeating and she was kept starved, but even such allegations areapparently vague and general in nature without quoting instancesas to when it had happened. 9.Even his cross examination exposes that, he made noinquiry as to who informed accused about Rs.50,000/- receivedfrom previous divorce. There is omission regarding he visiting herparents house at the time of panchami festival and learning from -10- Cri.Appeal.54.2004Dnyaneshwari about harassment for Rs.50,000/-. There is alsoomission about she informing him at the time of Diwali festival tothat extent. 10.Therefore, the sum total of testimonies of PW2 Anantand PW3 Ramdas is that, their versions are vague and general innature accusing husband and in-laws for harassing Dnyneshwari.They both are merely using the word of “harassment” withoutspecifying the form and when there was beating to her and whenshe was kept out of the house.11.Learned counsel for appellant has placed on recordjudgment of this court in the case of Ravindra Pyarelal Bidlan(Supra), wherein this Hon’ble Court had observed and held that,‘mere harassment’ or ‘mere demand’ is not cruelty. Likewise, theHon’ble Apex court in the landmark cases of Giridhar ShankarTawade v. State of Maharashtra (2002) 5 SCC 177, Gurnaib Singhv. State of Punjab (2013) 7 SCC 108, State of Andhra Pradesh v. M.Madhusudhan Rao (2008) 15 SCC 582, Bhaskar Lal Sharma v.Monica (2009) 10 SCC 604 and K. Subba Rao v. The State ofTelangana (2018) 14 SCC 452, has succinctly to dealt with thescope and object of section 498A of IPC. Bearing the said settledlegal position in mind and applying the same to the facts in the case -11- Cri.Appeal.54.2004in hand, apparently, there are vague, general and omnibusallegations of harassment. Cruelty as contemplated under law isnot forthcoming from the prosecution evidence. Above all on same evidence, learned trial court hasacquitted accused Nos.2 to 5 from all the charges including section498A of IPC, but in absence of concrete role of husband, he is solelysingled out and held guilty and sentenced. Consequently, thejudgment under challenge cannot be allowed to be sustained.Hence, appellant succeeds and this court accordingly proceed topass following order :-ORDERI)Criminal Appeal stands allowed.II)The conviction awarded to appellant - Bhimrao S/o.Bappaji Mundhe in S.T. No. 57 of 2003 by 3rd AdditionalSessions Judge, Parbhani on 06.01.2004 for the offencepunishable under Sections 498A of Indian Penal Code,stands quashed and set aside.III)The appellant stands acquitted of the offence punishableunder Section 498A of Indian Penal Code.IV)Bail bonds furnished by the appellant stands cancelled.V)The fine amount deposited, if any, be refunded to theappellant after the statutory period. -12- Cri.Appeal.54.2004VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. (ABHAY S. WAGHWASE, J.)Tandale