2014 ALL MR (Cri) 3680
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

M.L. TAHALIYANI, J.

Keshao s/o. Gajanan Mute Vs. State of Maharashtra

Criminal Appeal No.408 of 1998

18th June, 2014

Petitioner Counsel: Mrs. SUHASINI DESHPANDE
Respondent Counsel: Mr. A.K. BANGADKAR

Penal Code (1860), Ss.498A, 306 - Cruelty and abetment of suicide - Allegedly, deceased wife insisted accused husband to repay loan amount taken from her father - Quarrel arose - Suicide by consuming poison - Medical officer could not give definite cause of death due to advanced decomposition - Even chemical analysis report of viscera was not produced - Father of deceased was unable to say anything on relations of deceased and accused - Also, he could not state how deceased died - Evidence revealed that deceased suspected that accused had illicit relations with his brother's wife - However, accused suspected that deceased had illicit relation with her sister's husband - Prosecution was under obligation to prove that willful conduct on part of accused was of such nature which was likely to drive deceased to commit suicide or that there was harassment of deceased to meet any unlawful demand - No evidence to establish cruelty on part of accused - Also, not prosecution case that loan amount was demanded as dowry - Trial Court rightly acquitted accused u/s.306 - However, conviction u/s.498-A needs to be quashed. (Para 10)

JUDGMENT

JUDGMENT :- The appellant has been convicted for the offence punishable under Section 498A of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.One Thousand in default to undergo rigorous imprisonment for three months.

2. The appellant was chargesheeted by Hingna Police Station on the report lodged by father-in-law of the appellant. The charge under Section 306 and 498-A of the Indian Penal Code was framed. However, the appellant has been acquitted of the offence punishable under Section 306 of the Indian Penal Code.

3. The deceased committed suicide by consuming poison on 12th May, 1997. The matter was reported to police by the appellant himself. The accidental death was registered by police vide Exh.7. However, on 30th May, 1997 the complaint was lodged by father of the deceased vide First Information Report Exh.50. It was alleged that the relations of the deceased and the appellant were cordial for about two years from the date of marriage. The appellant had taken Rs.Ten Thousand from the complainant for purchase of the land. The deceased insisted that the said amount shall be repaid to her father. It is on account of the said dispute that there used to be quarrels between the deceased and the appellant. It is alleged that the appellant had illicit relations with the wife of his younger brother and therefore, he was illtreating the deceased. Further harassment was due to the fact that the deceased had no male child.

4. During the course of initial enquiry panchnama was drawn and inquest panchnama of the dead body was also conducted. The dead body of the deceased was sent to Mayo Hospital for post mortem examination. Viscera was preserved and it was sent to Chemical Analyzer for examination and report. The Medical Officer after completion of post mortem examination had opined that it was not possible to give any definite cause of death due to advanced decomposition. It is not known as to whether chemical analysis report was ever received.

5. Charge under Section 498A and 306 of the Indian Penal Code was framed against the applicant vide Exh.1. He pleaded not guilty and claimed to be tried. The prosecution had examined in all six witnesses in support of its case. After examination of the witnesses, statement of appellant under Section 313 of the Code of Criminal Procedure was recorded. As already stated, the appellant stood acquitted of the offence punishable under Section 306 of the Indian Penal Code. It appears that the acquittal came to be recorded for want of sufficient evidence. It further appears from the record and proceedings that even the Chemical Analyzer's report of viscera was not produced in the Court.

6. As far as charge under Section 498A Indian Penal Code is concerned, it will be apt to reproduce the provisions of Section 498A of the Indian Penal Code. The said Section runs as under:

"498A. 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 fine. Explanation - For the purpose of this section, "cruelty" means-

(a) any wilful conduct which is of such a nature as it 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 security or is on account of failure by her or any person related to her to meet such demand."

As such, the prosecution was under obligation to prove willful conduct on the part of the appellant of such a nature which was likely to drive the deceased to commit suicide or to cause grave injury or danger to her life or limb. In alternate, the prosecution was under obligation to establish that there was harassment of the deceased with a view to coercing her or her relative to meet any unlawful demand for any property or valuable security.

7. The prosecution has examined P.W. Nos. 1, 2 and 3 to establish 'cruelty' on the part of the appellant. P.W. 1 is father of the deceased. He has stated in his evidence that he had extended loan of Rs.Ten Thousand to the appellant for purchasing a land. The said amount was not returned to P.W. 1 by the appellant despite repeated demands. Relations of P.W. 1 and the appellant were strained due to the said dispute. It is further stated by this witness that the deceased and the appellant had a very happy married life during the initial stage and gradually their relations deteriorated. This witness was unable to say anything more on the relations of the deceased and the appellant. He has stated in his evidence 'I cannot say the relations between accused and my daughter. I cannot say how she died.'

8. P.W. 2 is co-brother of the appellant. He has also stated that the initial period of married life of the deceased and the appellant was very good and thereafter there were cracks in the relationship. The deceased suspected that the appellant had illicit relations with wife of his brother. This witness has further stated that the appellant wanted to divorce the deceased. This witness has made a vague statement that the appellant was causing harassment to the deceased. He has not given any details of alleged harassment. This witness has stated that the deceased had died due to consumption of poison.

9. P.W. 3 Maroti Bhanuse was neighbour of the appellant. He has stated that the appellant used to quarrel with the deceased if the deceased used to bring something from the neighbouring houses. P.W. 4 is cousin of the appellant. He has stated that the appellant used to quarrel with his wife because of her frequent visits to her sisters' house. The appellant suspected illicit relations between his wife and her sister's husband. Therefore, the relations between the deceased and the appellant were strained. P.W. 5 was present when inquest panchnama was drawn and P.W. 6 was the Investigating Officer.

10. Bare perusal of the evidence of P.W. Nos. 1, 2, 3 and 4 would show that there is no evidence at all of any nature to establish 'cruelty' on the part of the appellant. The evidence indicates that the appellant suspected that the deceased had illicit relations with her sister's husband and the deceased suspected that the appellant had illicit relations with his brother's wife. It appears that it was the most probable cause of quarrel between the deceased and the appellant. There is no evidence that the appellant had indulged into any willful conduct of the nature which was likely to drive the deceased to commit suicide. As far as demand of valuable property or security is concerned, there is no evidence of any nature. An amount of Rs.10,000/was taken by the appellant from his father-in-law by way of loan. It is not the case of prosecution that the amount was demanded or taken by way of dowry. As such, in my opinion, the learned trial Court could not have convicted the appellant for the offence punishable under Section 498A of the Indian Penal Code. The judgment of the learned trial Court needs to be set aside. Hence, I pass the following order.

i. The appeal is allowed.

ii. The Judgment and Order passed by Sessions Judge, Nagpur, dated 30th October, 1998 in Sessions Trial No.508/1997, is set aside.

iii. The appellant is acquitted of the offence punishable under Section 498A of the Indian Penal Code.

iv. His bail bonds shall stand cancelled.

v. Fine, if paid by the appellant, shall be refunded to him. The appeal stands disposed of accordingly.

Appeal allowed.