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2016 Supreme(Bom) 1939
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. BADAR, J.
The State of Maharashtra - Appellant
Versus
Chagan Kannu Bankar, R/o. Rahtoli - Respondent
Criminal Appeal No. 99 of 1999
Decided on : 25-04-2016
Advocate Appeared:
For the Appellant : Mrs. M.M. Deshmukh, APP
For the Respondent:Mr. D.S. Sapkale, Advocate
Headnote:Indian Penal Code, 1860 - Section 498-A-Cruelty-Proof of.-Where cruelty as envisaged in Section 498-A of IPC requires constant harassment and torture with some persistence, causing reasonable apprehension in the mind of the wife that living with her husband will be harmful or injurious to her and said element was missing. Hence her evidence was held not sufficient to infer the act of legal cruelty by the respondent/accused.
It is thus clear that there should be harassment or ill-treatment of a married woman in order to coercing her to meet the unlawful demand by the husband or in-laws. In the case in hand, evidence of PW 2 shows that her husband demanded an amount of Rs. 10,000/- to her. She does not state that she was either coerced or harassed by her husband while demanding amount. On the contrary, she stated that when she disclosed to her husband that she is not in a position to bring that amount, her husband had. beaten her. Except this, there is no material in chief-examination of PW 2 to show that she was coerced, harassed ill-treated or tortured by her husband while making demand of money from her. Alleged beating given by her husband, PW 2, as seen from the from her evidence, is only once which has resulted in lodging report by her. Cruelty as envisaged in Section 498-A of the Indian Penal Code requires constant harassment and torture with some persistence, causing reasonable apprehension in the mind of the wife that living with her husband will be harmful or injurious to her. This element is missing from the evidence of PW 2. As such, her evidence is not sufficient to infer the act of legal cruelty by the respondent/accused.
Indian Penal Code, 1860 - Section 498-A-Cruelty-Meaning and scope of.-Bare reading of the term "cruelty" as explained in Section 498-A makes clear that the same may be mental as well as physical but the meaning of "cruelty" varies from the place to place and individual to individual.
The status of the parties is always relevant while determining whether the acts complained of can constitute `cruelty` as explained in Section 498-A of the Indian Penal Code. For determining this aspect, the Court is always required to consider the whole facts of relationship between the parties. Suffice to state that cruelty postulates such treatment as to cause reasonable apprehension in the mind of the wife that her living with the husband and in-laws will be harmful and injurious to her life. Torture alleged is required to be of such a nature that would drive a married lady to commit suicide or to cause grave injury or danger to her life. Needless to mention that normal pitfalls in the married life cannot constitute legal cruelty as envisaged by Section 498-A of the Indian Penal Code, keeping in mind this position of law, let Court examine whether informant `C` was subjected to cruelty by the accused constituting offence punishable under Section 498-A of the Indian Penal Code. Naturally, therefore, evidence of informant `C` would assume great importance.
It is in her evidence that she was treated nicely by the accused for a period of four months in the beginning and thereafter, the accused demanded Rs. 10,000/- from her. She further deposed that because of her poor financial condition, she was unable to satisfy the demand of Rs. 10,000/- by the respondent/ accused-husband. Her evidence further goes to show that when she informed the accused that she has not brought an amount of Rs. 10,000/-, the accused had beaten her and threatened to kill her. PW 2 `C` then concluded her chief-examination by stating that, therefore, she has lodged the report against the accused by going to the police station at the instance of her father.
Indian Penal Code, 1860 - Section 498-A-Criminal Procedure Code, 1973, Section 378- Cruelty-Proof of.-Where the evidence of PW 2 and PW 3 were not at all consistent and cogent to the cruelty and isolated overt act of the accused was also not sufficient to infer cruelty as defined by explanation to Section 498-A, IPC, acquittal order passed in favour of accused was justified and hence, it was affirmed.
In the instant case, all evidence available against the accused as far as alleged cruelty is concerned, is coming from the near and dear once of the informant. There is not a single piece of any independent evidence and as such, in order to gain corroboration, the testimony of PW 3 `M` is required to be compared with that of PW 2 `C`. Whatever is stated by PW 3 `M` is not vouched by PW 2 `C` in her deposition. She has not stated that her father came to her matrimonial home to see her, she was bleeding from ear. Evidence of PW 2 `C` and PW 3 `M` is not at all consistent and cogent to infer cruelty. Isolated overt act of the accused is not sufficient to infer cruelty as defined by explanation to Section 498-A of the Indian Penal Code. Therefore, even though PW 5 Medical Officer has deposed that upon examination of PW 2 `C` 29th April, 1998, he found contusion on the intra-scapular region and bleeding from ear of PW 2 `C`, it cannot be said that the prosecution has made out an offence under Section 498-A of the Indian Penal Code.
It can be said that the view adopted by the trial Court while acquitting the accused of the offence punishable under Section 498-A of the Indian Penal Code, is a plausible view requiring no substitution at the hands of the Court. In the result, the appeal fails and the same is hereby dismissed.
A.M. Badar, J.
1. By this appeal, the appellant-State is challenging the judgment and order passed by the learned 5th Jt. J.M.F.C., Ulhasnagar on 19th November, 1998 in Regular Criminal Case No.135/1998 thereby acquitting the respondent/accused for the offence punishable under section 498A of the Indian Penal Code, 1860.
2. Facts leading to the institution of the present appeal can be summarised thus :-
(a) The respondent/accused Chhagan Bankar married informant Chandabai Chhagan Bankar on 16th March, 1997. Thereafter, informant Chanda started co-habiting with the respondent/accused at Village Rahtoli, Taluka Ulhasnagar, District Thane. According to the prosecution case, after initial nice treatment for four months, married life of Chanda had seen rough weather. Her husband Chhagan started subjecting her to cruelty by asking her to bring golden necklace from her mother. She was reached to her maternal house thereafter. When she returned to her matrimonial home after stay of eight months with her parents, the accused again subjected her to cruelty by assaulting her. Thereafter, informant Chanda was again required to take shelter at her parental home. Then, she was again reached to her matrimonial house. Thereafter, her husband Chhagan questioned her as to why she had not brought an amount of Rs.10,000/- from her father. Then accused is stated to have assaulted Chandabai. Fed-up with the constant ill-treatment and harassment at the hands of her husband/accused, Chanda lodged report against her husband on 30th April, 1998 resulting in registration of crime No.I-6/1998 against the respondent/accused at Kulgaon police station, Badlapur, Taluka Ulhasnagar, District Thane. In pursuance to the investigation of the said offence, charge-sheet was filed against the respondent/accused and ultimately Regular Criminal Case No.135/1998 was registered against him.
(b) Charge for the offence punishable under section 498A of the Indian Penal Code was framed against the respondent/accused, who pleaded not guilty. In support of the charge, the prosecution has examined in all five witnesses. Neibhourer Vishnu Ramchandra Pawar came to be examined as PW1 at Exhibit-7. Informant Chanda Bankar was examined PW2 at Exhibit-8. Report lodged by her is at Exhibit- 9. Father of Chanda, Motiram Daji Mhase came to be examined as PW3 at Exhibit-13. Investigating Officer Madhukar Dhiga Patil was examined as PW4 at Exhibit-15. Medical Officer Dr.Bhausaheb Shankar Bhondve was examined as PW5 at Exhibit-17 and medical certificate issued by him is at Exhibit-18.
(c) After hearing the parties, by the impugned judgment and order the learned trial Court came to the conclusion that evidence on record does not show that accused has subjected the informant to cruelty and, therefore, he came to be acquitted.
3. Heard the learned Additional Public Prosecutor appearing for the State. She vehemently argued that the evidence of informant Chanda coupled with that of her father PW3 Motiram as well as the evidence of the Medical Officer PW5 Bhausaheb Bhondve is sufficient to hold that the informant was subjected to cruelty by her husband and, therefore, the learned trial Court erred in acquitting the accused.
4. As against this, the learned counsel appearing for the respondent/accused argued that if it is assumed that there was some ill-treatment to the informant at the hands of the accused, the same does not amount to cruelty as defined in the explanation to section 498A of the Indian Penal Code and, therefore, the learned trial Court correctly acquitted the accused of the offence alleged against him.
5. Now, let us examine whether the learned trial Court has taken a probable view based on evidence on record. It will have to be seen whether there are compelling and substantial reasons to interfere with the judgment of acquittal.
6. At the outset, it would be appropriate to quote the definition of the term 'cruelty'. The Explanation to section 498A defined the term 'cruelty in
