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2017 DIGILAW 1708 (BOM)

Madan v. State of Maharashtra

2017-08-22

ROHIT B.DEO

body2017
JUDGMENT : 1. The appellant seeks to assail the judgment and order dated 11-2-2009 in Sessions Trial 80/1998, of the learned Ad hoc Additional Sessions Judge, Washim, by and under which the appellant is convicted for offence punishable under Section 498A of the Indian Penal Code and is sentenced to suffer simple imprisonment for thirty months and to additionally pay a fine of Rs.500/-. 2. The appellant (hereinafter referred to as the “accused”) was tried for offences punishable under Sections 306 and 498A read with Section 34 of the Indian Penal Code alongwith one Rameshwar, Gnyanba and Manjulabai, the younger brother, father and mother of the accused respectively. The other three accused have been acquitted by the learned Sessions Judge. The accused is acquitted of offence punishable under Section 306 of the Indian Penal Code and convicted for the offence punishable under Section 498A of the Indian Penal Code. 3. Shri R.P. Thote, leaned Counsel who is appointed to represent the accused is not present. His colleague informs that due to personal difficulty Shri R.P. Thote is not in a position to argue the appeal today. However, with the fair and painstaking assistance of the learned Additional Public Prosecutor Shri N.B. Jawade, I have given my anxious consideration to the entire record and I propose to decide the appeal on the basis of the record despite the absence of the learned Counsel for the appellant. 4. The case of the prosecution, as is discernible from the oral report Exhibit 21, the printed first information report Exhibit 22 and the oral evidence adduced during the course of the trial is thus: Jijabai, the sister of the informant married accused Madan in 1997. Jijabai died on 06-5-1998. Jijabai’s body was recovered from a well situated in close by proximity to the agricultural field of accused. An oral report was lodged by the brother of the deceased on 07-5-1998 (Exhibit 21) on the basis of which printed first information report was recorded (Exhibit 22). An offence punishable under Sections 306 and 498A read with Section 34 of the Indian Penal Code was registered at police station Washim against the accused, his younger brother Rameshwar, father Gnyanba and mother Manjulabai. The investigation culminated in presentation of charge-sheet. 5. An offence punishable under Sections 306 and 498A read with Section 34 of the Indian Penal Code was registered at police station Washim against the accused, his younger brother Rameshwar, father Gnyanba and mother Manjulabai. The investigation culminated in presentation of charge-sheet. 5. The learned Sessions Judge framed charge under Section 306 read with Section 498A read with Section 34 of the Indian Penal Code, the accused pleaded not guilty and claimed to be tried. 6. The defence of the accused as is evident from the statement recorded under Section 313 of the Criminal Procedure Code is of total denial and false implication. 7. The learned Sessions Judge, after appreciating the evidence on record, was pleased to record a finding that the prosecution has not proved the suicidal death beyond reasonable doubt. Several circumstances and facts proved on the record have been considered and appreciated by the learned Sessions Judge in holding that since it is not proved that the deceased committed suicide, the accused deserves to be acquitted of the offence punishable under Section 306 of the Indian Penal Code. The finding recorded by the learned Sessions Judge is unexceptionable and the State has rightly not challenged the said acquittal in appeal. 8. In the absence of the learned Counsel for the appellant, this Court has been ably assisted by the learned Additional Public Prosecutor, who as an officer of the Court, has fairly invited my attention to the entire evidence. With the assistance of the learned Additional Public Prosecutor Shri N.B. Jawade, I have carefully scrutinized the evidence on record in order to satisfy my judicial conscience that the guilt of the accused is established beyond reasonable doubt. Having done so, I am not persuaded to uphold the finding of guilt recorded by the learned Sessions Judge. 9. The evidence on record will have to be tested and appreciated on the anvil of the ingredients necessary to be established by the prosecution for bringing home the charge under Section 498A of the Indian Penal Code. The material witnesses are P.W.1, P.W.2 and P.W.3, the brother, mother and father of the deceased, respectively. P.W.1 has deposed that the accused started saying after three to four months of marriage with the deceased, that the deceased Jijabai was dark (black) in colour and he was also beating her. The material witnesses are P.W.1, P.W.2 and P.W.3, the brother, mother and father of the deceased, respectively. P.W.1 has deposed that the accused started saying after three to four months of marriage with the deceased, that the deceased Jijabai was dark (black) in colour and he was also beating her. P.W.1 further states that the accused refused to allow Jijabai to visit her parental home for the festival of Sankrant and the accused told P.W.1 that since agricultural work was on going, it would not be possible to send the deceased Jijabai to her parental home. P.W.1 states that when Jijabai visited her parental home eight days prior to the incident, she told P.W.1 that the accused Madan had asked her to bring Rs.10,000/- for sowing or else not to return to his house. P.W.1 deposes that he informed Jijabai that he would pay the money after sometime. The oral testimony of P.W.1 is marred by improvements. The version of P.W.1 that accused Madan was beating the deceased and the version that the deceased Jijabai told P.W.1 that accused had asked her to bring Rs.10,000/-, is inconsistent with the contents of the first information report and is an improvement, as is shown in the cross-examination. 10. P.W.2 Vatsalabai, the mother of the deceased does not state anything about the alleged beating. Indeed, the only allegation which is consistent with the version of P.W.1 is that of a demand of Rs.10,000/- for agricultural operations, and that the accused and the father and mother of the accused harassing the deceased due to her dark colour. P.W.2 states that the deceased was pregnant and that the deceased told her that the accused has asked her to terminate the pregnancy. P.W.1 who is the first informant has not spoken about the pregnancy or of the accused having asked the deceased to terminate the pregnancy. In the cross-examination, P.W.2 admits that the deceased was having good facial features and that the accused had seen and approved the deceased as wife. P.W.2 admits that the deceased was of light complexion. She further admits that the deceased was busy in cooking in the house of Kawale in the marriage ceremony throughout night and in the morning the deceased went to the field of the accused. 11. P.W.2 admits that the deceased was of light complexion. She further admits that the deceased was busy in cooking in the house of Kawale in the marriage ceremony throughout night and in the morning the deceased went to the field of the accused. 11. P.W.3 Sampatrao who is the father of the deceased states that after four months of the marriage the deceased told him that all the accused were teasing her due to black complexion. P.W.3 states that fifteen days prior to the death of the deceased she told P.W.3 that the accused, the parents of the accused and the younger brother of the accused were insisting that the pregnancy be terminated and were beating her and were physically assaulting the deceased in order to pressurize her to terminate the pregnancy. P.W.3 states when he reached to the house accused, he was told by the deceased that the accused demanded Rs.10,000/- for sowing operations. In the cross-examination, he admits that after the marriage, the deceased visited her parental house twice or thrice. He admits that the deceased stayed for two to four days on the first occasion and then again visited the parental house after one month. He admits that the deceased again visited her parents for the pola festival. P.W.3 states that he did not tell anybody from the village that the accused demanded Rs.10,000/-. He admits that he did not tell anybody else that the accused demanded that the pregnancy of the deceased be terminated. The defence has brought on record an omission in relation to the demand for Rs.10,000/- and termination of pregnancy, which however, is not proved in the cross-examination of the investigating officer. 12. The defence has examined the police patil Trimbak who has deposed that there was no ill-treatment to the deceased. He has also deposed that he asked the parents of the deceased to lodge a police report and the parents of the deceased were not inclined to do so since the death was accidental. 12. The defence has examined the police patil Trimbak who has deposed that there was no ill-treatment to the deceased. He has also deposed that he asked the parents of the deceased to lodge a police report and the parents of the deceased were not inclined to do so since the death was accidental. The learned Sessions judge has not given any importance to the testimony of D.W.1 Trimbak on the premise that the treatment meted out to the woman is within the four corners of the marital home and the version of the defence witness that the parents were not inclined to lodge a report is an improvement since in the report lodged by the police patil (D.W.1) on the basis of which 174 Criminal Procedure Code case was registered, this fact is not mentioned. 13. I am not persuaded to hold that the prosecution has proved beyond any reasonable doubt that the deceased was subjected to cruelty as is envisaged under Section 498A of the Indian Penal Code. 14. At the stage of the judgment, the learned appointed Counsel Shri R.P. Thote has appeared before this Court and has further assisted the Court. 15. The cruelty which is required to be established to bring home charge under Section 498A of the Indian Penal Code would be cruelty within the meaning of Explanation (a) or (b) thereof. It would not suffice for the prosecution to establish that the accused has misconducted himself or that his treatment to the wife is not idle. Cruelty which may be a matrimonial misconduct or which may be sufficient to constitute a matrimonial offence may not necessarily constitute an offence under Section 498A of the Indian Penal Code. I am satisfied, on a holistic view of the material on record that the prosecution has not established beyond reasonable doubt that the accused is guilty of wilful conduct of such a nature as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health nor would the allegation, the veracity of which is doubtful, that the accused asked the deceased to bring an amount of Rs.10,000/- for agricultural operations, constitute harassment envisaged under Explanation (b) to Section 498A f the Indian Penal Code. Nothing is brought on record to suggest that the deceased was physically or emotionally traumatized or depressed. Nothing is brought on record to suggest that the deceased was physically or emotionally traumatized or depressed. Au contraire, the prosecution version as is unfolded during the course of trial, would reveal that the deceased was going about her day to day routine in an unperturbed manner. She, till her death, was participating actively in social functions and was lending a helping hand in the agricultural operations of the field of her husband and in laws. Undoubtedly, death of Jijabai must have been traumatic for her family. Untimely death of young daughter may have caused immense hurt, anguish and may be a sense of anger due to a perception that the accused and his family may not have been ideal husband and in laws. It is not rare that such feelings impel the family members to indulge in blame game and exaggerations. However, the finding recorded by the learned Sessions Judge is that the deceased in every probability met an accidental death, which finding is unexceptionable, as I have already held. On overall appreciation of the evidence on record, I am not inclined to uphold the conviction. 16. The judgment and order of the learned Ad hoc Additional Sessions Judge, Washm in Sessions Trial 80/1998 on 11-2-2002 is set aside. The accused is acquitted of the offence punishable under Section 498A of the Indian Penal Code. Bail bond of the accused stands discharged. Fine, if any, paid by the accused be refunded to him. 17. Fees of appointed Counsel for the appellant shall be Rs.1,500/-. Criminal Application 570/2017. In view of the disposal of the appeal, no orders on the application are necessary. The application is disposed of accordingly.