IMPORTANT POINT
Second wife with newly born child - allowing the first wife to reside with her - not cruelty.

Judgment :-

A.K. Patnaik, J.

This is an appeal by way of special leave under Article 136 of the Constitution against the judgment and order dated 13.09.2007 of the Gujarat High Court in Criminal Appeal No.294 of 1994.

FACTS

2. The facts very briefly are that the appellant was married to Laxmiben in 1980. The appellant, who was a teacher, used to travel in a bus along with Amriben, who was also a teacher, for their work in their respective schools located at a distance of 2 kms. from each other. The appellant and Amriben fell in love and got married in 1990. A daughter was born to Amriben in 1991. The appellant, Laxmiben and Amriben were living together in different portions of one house of the appellant in village Dhuleta Palla. On 26.03.1992, a letter written by Amriben was received in Shamlaji Police Station. In this letter, Amriben alleged inter alia that the appellant was more interested in money and not in love and he had threatened and kidnapped her, although he had a wife and three children and the appellant had cheated her and persuaded her to have civil marriage on 21.08.1990. She further alleged in the letter that after marriage the appellant’s family was living on her salary and the appellant had started torturing her to a limit which was no longer tolerable by her and she was also not given meals and the appellant was threatening to kill her and for all this the appellant and his first wife Laxmiben and his other family members were involved. On 26.03.1992 in the afternoon, the appellant came to the school of Amriben and enquired from the Principal of the school and the teacher of Amriben as to whether Amriben had made a complaint to the Police Station. That evening, the appellant who usually took Amriben back from her school instead requested the Principal of her school, Ms. Timothibhai, to take seat on the scooter with him and as a result Amriben had to walk along with Lilavatiben, who was holding her little daughter, to the bus stand. During the night of 26.03.1992, the appellant slept with Laxmiben while Amriben slept with her new born daughter in another room of the house. On 27.03.1992, early in the morning, the appellant and Laxmiben heard the little daughter of Amriben crying and they found that Amriben had jumped into the well and had died.

3. A post mortem on the dead body of Amriben (for short ‘the deceased’) was conducted on 28.03.1992 at 2.30 p.m. and the cause of the death was found to be drowning. Initially, on the report of the appellant, the Shamlaji Police Station registered an accidental death case under Section 174 of the Criminal Procedure Code, (for short ‘the Cr.P.C.’). Subsequently, however, on 03.04.1992 an FIR was registered by Shamlaji Police Station under Sections 498A and 306 of the Indian Penal Code (for short ‘the IPC’) in view of the allegations made by the deceased in her letter dated 26.03.1992 to the police station. Investigation was carried out and a charge-sheet was filed against the appellant and Laxmiben under Sections 498A and 306, IPC.

4. At the trial, amongst other witnesses examined on behalf of the prosecution, Ms. Timothibhai, Principal of the school, was examined as PW-1, the doctor who carried out the post mortem was examined as PW-2, the mother of the deceased was examined as PW-3, Lilavatiben, co-teacher of deceased was examined as PW-4 and the Investigating Officer was examined as PW-10. The appellant also examined various witnesses in his defence. The trial court by its judgment dated 10.02.1994 in Sessions Case No.59/92 acquitted Laxmiben, but convicted the appellant under Sections 498A and 306, IPC, and sentenced him to simple imprisonment for one year and two years for the two offences respectively and also imposed a fine of Rs.100/- for each of the offences. Aggrieved, the appellant filed criminal appeal before the High Court, and by the impugned judgment, the High Court acquitted the appellant from the charge under Section 306, IPC, but maintained the conviction and