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2012 DIGILAW 1768 (BOM)

Nitin Ganpat Jivade v. State of Maharashtra

2012-09-14

R.C.CHAVAN

body2012
JUDGMENT:- This appeal is directed against conviction of the appellant by the learned Additional Sessions Judge, Nashik for the offence punishable under Section 498A and sentence of rigorous imprisonment for one month with a fine of Rs.500/- or in default rigorous imprisonment for 15 days imposed upon the appellant on conclusion of Sessions Trial No.17 of 1996 before him. 2. Facts which are material for deciding this appeal are as under :- The victim was married to the appellant on 6th January, 1994. The appellant started demanding Rs.10,000/- for purchasing a new Auto Rickshaw. Since the victim refused to pass on demands to her parents, the appellant thrashed her by iron bar, stick, fist & kick blows. The victim's parents were informed and they took her to the hospital where she was admitted for seven days. She had miscarriage because of the injuries suffered. The matter was reported to the police and an offence was registered. In the course of investigation, police recorded statements of witnesses, collected other incriminating material and sent charge sheet to the Court of Judicial Magistrate F. C., Nashik, who committed the case to the Court of Sessions, Nashik. 3. The learned Additional Sessions Judge to whom the case was made over, charged the appellant for the offences punishable under Sections 316 and 498A of the Indian Penal Code. Since he pleaded not guilty, he was put on trial at which the prosecution examined in all four witnesses in its attempt to bring home guilt of the accused. After considering the prosecution evidence of those four witnesses, the learned Judge acquitted the appellant for the offence punishable under Section 316 of the Indian Penal Code but convicted and sentenced him for the offence punishable under Section 498A as aforementioned. Aggrieved thereby, the appellant is before this Court. 4. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent - State. With the help of both the learned counsel I have gone through the evidence on record. PW-l victim Mangala Nitin Jivade, proved her FIR at Exhibit No.10. The learned counsel for the appel1ant submitted that this FIR is delayed, since it was filed about 19 days after the incident. With the help of both the learned counsel I have gone through the evidence on record. PW-l victim Mangala Nitin Jivade, proved her FIR at Exhibit No.10. The learned counsel for the appel1ant submitted that this FIR is delayed, since it was filed about 19 days after the incident. He submitted that even if it is taken that the victim was in the hospital till 13th July, 1995, there was absolutely no reason why Fm was filed on 25th July, 1995. PW-2 Dr. Kalpana Sudhakar Vyavahare had treated the victim and proved her Certificate at Exhibit No.12. Since Dr. Kalpana Vyavahare stated that foetus come out naturally five days after admission, appellant's role in causing abortion was possibly ruled out. However, Dr. Kalpana Vyavahare had stated that the victim had come to the hospital with the history that she was beaten up on her back with sticks and on her abdomen with kick and fist blows. She had also observed that there was no external injury on the abdomen, but tenderness on the lower part of the abdomen was notified. PW-3 Babita Dagadu Sonawane, victim's mother and PW-4 Ranjana Balu Gangurde, her friend, support victim's version as far as demands and ill treatment are concerned. 5. The learned counsel for the appellant submitted that this evidence was hardly sufficient to establish a case of cruelty punishable under Section 498A of the Indian Penal Code. Relying on Judgment of Division Bench of this Court in Aftab Alam Abdul Hamid Ansari Vs. State of Maharashtra, reported in 2005 CR.L.J. 3634 : [2005 ALL MR (Cri) 2636], the learned counsel for the appellant submitted that demand for starting a new business cannot be equated to demand for dowry. In that case, the question came in the context of offence of dowry death. The explanation to Section 498A is in two parts while the second part refers to unlawful demand. The first part Clause (a) refers to other forms of cruelty. The learned counsel submitted that since there is nothing to show that the victim was driven to commit suicide, explanation (a) was not attracted. It is not necessary to prove cruelty under Section 498A that the victim must be driven to commit suicide. The first part Clause (a) refers to other forms of cruelty. The learned counsel submitted that since there is nothing to show that the victim was driven to commit suicide, explanation (a) was not attracted. It is not necessary to prove cruelty under Section 498A that the victim must be driven to commit suicide. The explanation provides that any willful conduct which is of such a nature as is 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 is sufficient. In this case, the evidence clearly shows that the victim had been beaten up when she was pregnant with kicks and fist blows and iron bars. These injuries eventually led to miscarriage. For a woman, motherhood is most important and miscarriage inflicts upon her mental injury. This is apart from the fact that the story of assault given by PW-1 Mangala Jivade is duly corroborated by PW-2 Dr. Kalpana Vyavahare. In view of this, it cannot be said that the learned trial Judge erred in holding the appellant guilty for the offence punishable under Section 498A of the Indian Penal Code. 6. The learned counsel for the appellant submitted that the appellant and victim have separated in the year 1996 and the appellant had paid a sum of Rs.10,000/- to the victim at the time of parting according to telephonic instructions received by him. He submitted that both are living with their respective spouses and have three children each. He submitted that the appellant was in jail from 25th July, 1995 to 31st July, 1995 i.e. for about seven days and therefore, may not be sent back to the prison now 16 years after his conviction. The learned APP submitted that the learned trial Judge had been too lenient and further leniency is not called for. There is no doubt that the learned Judge had been extremely lenient in sending the appellant to prison for only one month after having held him guilty for the offence punishable under Section 498A of the Indian Penal Code. All the same, short term prison sentences do not serve any purpose in reforming the prisoner. In this case, after 16 years asking the appellant to go back to prison for three weeks would, rather than serving any reformative purpose, disturb his family life. 7. All the same, short term prison sentences do not serve any purpose in reforming the prisoner. In this case, after 16 years asking the appellant to go back to prison for three weeks would, rather than serving any reformative purpose, disturb his family life. 7. Therefore, the appeal is partly allowed by reducing sentence to that already undergone whi1e increasing the fine to Rs.10,000/- or in default simple imprisonment for a period of one month. If the fine is deposited, the entire amount of fine shall be paid to the victim towards compensation. If the appellant does not deposit the fine within a period of four weeks, the learned Judge shall have the appellant arrested and committed to prison to serve his entire sentence. Appeal partly allowed.