High Court

Legal Reasoning

-1- Cri.Appeal.681.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 681 OF 2004Rashid Mohammadsab Momin, Age : 40 years, Occu. : Business, R/o. Bhoom, Tal. : Bhoom,Dist. Osmanabad.… Appellant. VersusState of Maharashtra, Through P.S.I. Bhoom… Respondent…Mr. S. S. Shinde, Advocate for AppellantMr. K. K. Naik, APP for Respondent – State... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 10th SEPTEMBER, 2024PRONOUNCED ON : 24th SEPTEMBER, 2024JUDGMENT : 1.Judgment and order dated 01.10.2004 passed by IIndAd-hoc Additional Sessions Judge, Osmanabad in Sessions Case No.32 of 2000, rendering conviction of appellant for offencepunishable under section 498-A IPC is hereby assailed by filinginstant appeal. 2.Appellant Rashid was married to informant Fatemabeeand out of their wedlock they had three daughters. Rashid startedbeating Fatemabee since one and half year prior to the incident inquestion. He used to get drunk, beat Fatemabee and drive her out -2- Cri.Appeal.681.2004of the house. She reported it to her father and family members. On30.03.1993, he again subjected her to physical cruelty by beatingher and causing her injury. She gave report to that extent whileundergoing treatment. On the basis of which, police registeredcrime bearing No.24 of 1993. After investigation, accused came to be charge-sheeted.At trial, prosecution examined in all 08 witnesses. Accused alsoadduced evidence of 03 witnesses. After appreciating the aboveevidence, learned trial Judge accepted the case of prosecution asproved, but only for offence under section 498-A IPC and acquittedaccused of the rest of the charges. Hence, instant appeal.EVIDENCE IN THE TRIAL COURT 3.The prosecution has examined following nine witnessesin support of its case. Their role and status is as under : PW1 Fatemabee informant is the wife of appellant; PW2 Nafizbegam is the sister of complainant; PW3 Mohammad Abdul is the father of complainant;PW4 Sarjerao, PW5 Sahdev and PW6 Janumiya are thepanchas, did not support the prosecution; PW7 Dr. Sudhir Yermalkar is the Medical Officer;PW8 Dy.S.P. Nana Patil and PW9 P. I. Ashok Patil -Investigating Officers, respectively. -3- Cri.Appeal.681.2004SUBMISSIONS On behalf of Appellant : - 4.Learned counsel for appellant submitted that, chargeunder section 498-A IPC has not been proved by prosecution intrial court beyond reasonable doubt. He pointed out that, there aregeneral and vague allegations and instances are not quoted. Hewould submit that, complainant herself was held guilty forcommitting murder of two daughters and there is admission to thatextent. That, injury suffered by her was when she attempted tocommit suicide and no role whatsoever has been played byhusband. In fact, cruelty as contemplated has not been established.That, there was no demand or maltreatment. That, learned trialCourt has completely ignored the legal requirements and accordingto learned counsel, there is improper appreciation of both,evidence as well as law, and hence he prays to allow the appeal. On behalf of Respondent – State :-5.In answer to above, learned APP submitted that, sinceone and half year prior to the incident, appellant was beatinginformant mercilessly. That, she had quoted the period ofcontinuous beating from 28.03.1993 to 30.03.1993, and therefore,according to him, it is incorrectly submitted that no instances arequoted. Learned APP submitted that, beating was of such extent -4- Cri.Appeal.681.2004that she was hospitalized and unconscious. That, complainant haslodged report while taking treatment. That, apart from herevidence, there is supportive evidence of sister and father. That,they are all consistent and therefore, according to learned APP,there is no infirmity or error on the part of learned trial Judge inreturning guilt only for offence under section 498-A IPC as there islegally acceptable evidence and hence he prays to dismiss theappeal. ANALYSIS6.PW1 Fatemabee deposed that she had three daughters,namely Asma, Reshma and Guddi out of her wedlock withappellant husband. Sum and substance of her evidence is that,since one and half years, husband used to beat her on variouscounts like not giving watermelon to his brother Yunus. He used toget drunk and beat her and even drive her out of the house. Once,he hit her causing bleeding injury to the head. He also beat her bykicks and fist blows for not preparing meat properly. Since28.03.1993 till 30.03.1993, he used to beat her under influence ofliquor. On 30.03.1993 he bolted the house door and beat her.Therefore, she lodged report while undergoing treatment. In cross, she has answered that, her relations with in-laws were sometime good and sometime strained. Again in cross -5- Cri.Appeal.681.2004she answered that, accused beat her from 28.03.1993 to30.03.1993, but no neighbour came to her rescue. She admittedthat, Bhoom Police registered criminal case against her forcommitting murder of daughters, Reshma and Guddi and also forattempting to commit suicide and she was arrested and charge-sheeted and she was on bail. She admitted that, she had filedmaintenance proceedings against husband. Rest is all denial. In paragraph 3 of cross, omission is brought thathusband beat her continuously from 28.03.1993. to 30.03.1993.Rest is all denial. 7.PW2 Nafizbegam sister stated that, prior to one andhalf year of the incident, her sister had come to her. When sheasked how she became so weak, her sister reported that herhusband beat her by consuming liquor. Witness stated that, whenshe learnt about admission of her sister in civil hospital, she wentthere and she found her sister to be unconscious and on beingshifted to Civil Hospital, Solapur, she accompanying her. Shestated that, after reaching Solapur, she learnt that two daughtersof her sister died. On 5th day, her sister regained consciousness andshe narrated her about the incident. -6- Cri.Appeal.681.2004 Sister in cross denied every suggestion exceptadmitting that after recording her statement by police, statementof her sister was recorded.8.PW3 Mohammad father stated that, he learnt aboutadmission of his daughter in Civil Hospital, Osmanabad and hewent there. His elder daughter was with complainant. He came toknow that two daughters of complainant died. After 5 to 6 days,complainant narrated the entire incident. According to him, priorto incident, accused was habitual of drinking liquor and beatingcomplainant and many times she came to his house and told himabout ill treatment. Even prior to one and half month of theincident, husband beat complainant due to which she suffered headinjury. While under cross, there is complete denial. 9.PW4 Srajerao, PW5 Sahdev and PW6 Janumiya,panchas have not supported prosecution.10.PW7 Dr. Sudhir Yermalkar, Medical Expert posted atcivil dispensary Bhoom, stated that, he examined two girls i.e.Reshma and Guddi as well as informant Fatemabee. -7- Cri.Appeal.681.200411.The girls had suffered stabs wound on abdomen andeven Fatemabee informant had suffered stab injury. He hadexamined appellant also, but did not notice any injury on hisperson. He identified injury certificates Exhs.48, 49 and 50 as wellas Article 4. In cross he answered that, Fatemabee was not willing totake treatment and was repeatedly saying to let her die. Headmitted that, injury suffered by Fatemabee could be suicidal.12.PW8 Dy.S.P. Nana Patil and PW9 P. I. Ashok Patil arethe Investigating Officers. DEFENCE WITNESSES13.DW1 Asma, another daughter of informant stated that,11 years back, her mother killed her sisters, namely Reshma andGuddi and also attempted to commit suicide. She stated that, hermother called her inside and asked her to tell her father to come toreside at Aurangabad. She refused and went out of the house. Shewas again called by mother and dragged, but she managed to runout of the house. Her mother forcibly closed the door. Then sheclaims that she saw through the door that her mother firstassaulted Reshma and then Guddi and then herself. Hergrandfather, grandmother and the wife of uncle came there andher mother was taken to the hospital. -8- Cri.Appeal.681.2004 In cross she answered that, her father was prosecuted.That, at the time of incident, she was studying in 4th standard.That, she came along with her uncle. Rest is all denial.14.DW2 Limbraj stated that, the incident took place whilehe was standing in Gandhi Chowk. One Gafar Quoreshi came andinformed that wife of accused killed her two daughters and alsoinflicted injury on herself. That time, accused Rashid proceeded tohis house. He also accompanied them to the hospital. In cross, he gave description of the clothes on theperson of accused and injured girls. 15.DW3 A.P.I. Rathod, Police Officer stated that, hecharge-sheeted present complainant. He stated that complaint wasfiled against Fatemabee.16.Here, though there was charge for offence undersection 498-A, 307 and 302 IPC, guilt is recorded by learned TrialJudge for offence under section 498-A IPC only. 17.As regards charge under Section 498-A IPC isconcerned, as to what actually constitutes cruelty has been lucidlyand succinctly dealt in the landmark cases of State of West Bengal -9- Cri.Appeal.681.2004v. Orilal Jaiswal [(1994) 1 SCC 73], Giridhar Shankar Tawade v.State of Maharashtra (2002) 5 SCC 177; State of Andhra Pradeshv. M. Madhusudhan Rao (2008) 15 SCC 582; Bhaskar Lal Sharmav. Monica (2009) 10 SCC 604 G. V. Siddaramesh v. State ofKarnataka (2010) 3 SCC 152 and Gurnaib Singh v. State of Punjab(2013) 7 SCC 108; K. Subba Rao v. The State of Telangana (2018)14 SCC 452.18.Here, evidence of informant and her sister is crucialand requires appreciation. The sum and substance of evidence of PW1 Fatemabeeis that, her marriage with appellant is seven years old. She hasalleged beating at his hands on the count of not giving watermelonto his brother Yunus, i.e. resulting into bleeding head injury. Shealleges beating on 28.03.1993 for not cooking meat properly andthird allegation is of beating on 30.03.1993 by fist blows and kickblows. Consequently, out of seven years cohabitation, she hasquoted above three instances. She has lodged complaint at policestation which is at Exh.31.19.The sum total of above discussed evidence is that, herversion that husband appellant beat her from 28.03.1993 to30.03.1993 is shown as a material omission. Therefore, except -10- Cri.Appeal.681.2004levelling bare allegations that husband beat her after getting drunki.e. during seven years married life, there is no independentsupportive evidence. Apparently, sister and father both havehearsay information. What law contemplates for attracting 498-AIPC is continuous, incessant harassment and cruelty i.e. both,physical and mental. Evidence of such requirement is patentlymissing in the case in hand. Though she suffered stab injury, it isemerging that, it is self inflicted one. Her own daughter DW1 Asmathrows light on the alleged episode of assault with knife.Therefore, said injury cannot be attributed to husband, whoadmittedly was not present in the house on the day of incident.With such quality of evidence, conviction for offence under section498-A IPC cannot be recorded. 20.Perused the impugned judgment. Learned trial Judgehas in paragraph no. 35 observed that, there is clear evidence thatappellant subjected PW1 Fatemabee to cruelty i.e. willful conductwhich was of such nature as was likely to drive her to commitsuicide or to cause grave injury or dangerous to the life, limb andhealth. However, when appellant is not present at the house at thetime of incident, the above findings are apparently incorrect.Evidence of DW1 Asma has not been appreciated by learned trialJudge and has completely ignored the same even when settled -11- Cri.Appeal.681.2004position is that defence witness also needs equal treatment as likethat of a prosecution witness. Hence, interference is called for.Accordingly following order is passed :-ORDERI)The criminal appeal stands allowed.II)The conviction awarded to appellant - RashidMohammadsab Momin in Sessions Case No. 32 of 2000by the IInd Ad-hoc Additional Sessions Judge, Osmanabadon 01.10.2004 for the offence punishable under section498-A of Indian Penal Code, stands quashed and setaside.III)The appellant stands acquitted of the offence punishableunder section 498-A of Indian Penal Code.IV)The bail bonds of the appellant stands cancelled.V)The fine amount deposited, if any, be refunded to theappellant after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. (ABHAY S. WAGHWASE, J.)Tandale