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Judgment
Challenge is to the judgment and order dated
21.9.2002 rendered by the 1st Adhoc Additional Sessions Judge,
Nagpur in Session Trial 632 of 2000, by and under which, the
appellant - accused is convicted for offence punishable under
section 498-A of the Indian Penal Code (" IPC " for short) and is
sentenced to suffer rigorous imprisonment for three years and to
payment of fine of Rs. 300/-. The accused is acquitted of offence
punishable under section 306 of the IPC. The co-accused Sau.
Kavita Tirpude is acquitted of both the offences.
Heard Shri P.R. Agrawal, the learned counsel for the
appellant and Shri. N.R. Patil, the learned Additional Public
Prosecutor for the respondent / State.
The gist of the prosecution case is thus:
The accused and the deceased Gitabai entered into
matrimonial alliance 22 years prior to the incident. The couple
was blessed with two sons and one daughter from the wedlock.
The acquitted co-accused Kavita was residing in the house of the
accused since her childhood. She married one Pramod Tirpude
and within three months of the marriage delivered a child. The
case of the prosecution is that Kavita left her matrimonial home
and again started residing with the accused and both were in a
relationship.
Instigated by Kavita, the accused used to illtreat the
deceased Gitabai. The accused used to quarrel with the deceased
frequently. Gitabai used to disclose the illtreatment to her brother
Mahendrakumar (PW 8). The son of the accused PW 9 Vikas is a
witness to the persistent and continuous illtreatment. An
altercation took place between the accused and Gitabai in the
afternoon on 19.7.2000. The accused berated Gitabai and
assaulted her at night. On the next day, at 3.00 p.m. PW 10 -
Manish who is the son of Gitabai''s sister, and who was a guest in
the house since few days, came home after visiting the fair.
Manish asked Gitabai for a glass of water. Accused Kavita had
asked Gitabai to look after her daughter. Gitabai therefore asked
Kavita to give water to Manish. An altercation ensued and at the
instigation of Kavita, accused assaulted Gitabai who sustained
injury to head and tooth. Gitabai took out a bottle of insecticide
from the Almirah and consumed the insecticide, saying that it
would be better if she dies so that the day to day quarrels can be
avoided. Gitabai was admitted to Savner hospital, and expired on
20.7.2000 while undergoing treatment.
Inquiry under section 174 of the Code of Criminal Procedure
was initiated. Autopsy on the body was conducted. Spot
panchanama was prepared, completion of investigation led to
submission of the charge sheet in the court of Judicial Magistrate
First Class, Savner who committed the proceedings to the Sessions
Court. The learned Sessions Judge framed charge (Exh. 6) under
section 306 and 498-A read with section 34 of the IPC, accused
abjured guilt and claimed to be tried. The defence is of total
denial and false implication.
Section 498-A of the IPC reads thus:
"498-A. 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 file.
Explanation - For the purpose of this section, "cruelty" means-
(a) any wilful 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; 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 scrutiny or is on account of failure by her or any person related to her to meet such demand.)"
It is not the case of the prosecution that explanation (b) of
section 498-A of IPC is attracted. The case of the prosecution is
that the accused subjected the deceased Gitabai to cruelty within
the meaning of explanation (a) of section 498-A of the IPC. The
prosecution is obligated to prove that the conduct of the accused
was willful, and 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.
I have given anxious consideration to the evidence on
record in the light of the submissions advanced by Shri P.R.
Agrawal and the learned Additional Public Prosecutor and the
reasoning of the learned Sessions Judge, and having done so, in
my opinion, the prosecution has proved the offence under section
498-A of the IPC beyond reasonable doubt.
It is irrefutable that the acquitted co-accused Kavita
was residing with the accused and Gitabai. PW 8 Mahendrakumar
is the brother of the deceased and the informant. He has deposed
that since 5 years prior to the incident, the deceased was
perturbed due to the relationship between the accused and Kavita.
PW 8 states that the deceased narrated that she was subjected to
physical assault frequently. The testimony of PW 8 is substantially,
if not entirely, based on information received from the deceased.
However, in view of the acquittal of the accused for offence
punishable under section 306 of the IPC, the verbal statements of
the deceased are not admissible under section 32(1) of the Indian
Evidence Act since cause of death is not in issue as regards the
offence punishable under section 498-A of the IPC. It would be
necessary to scrutinize the other ocular evidence on record to
ascertain whether the deceased Gitabai was subjected to cruelty as
is statutorily defined for the purpose of section 498-A of the IPC.
The prosecution has examined the son of the accused
Vikas as PW 9. Vikas has deposed that Kavita was residing in the
house of the accused since childhood. Her marriage was
performed by the accused. She delivered a child within three
months of the marriage. Vikas has deposed that the accused and
Kavita were sleeping together in the house and the accused was
the father of the girl child born to Kavitra. After delivery of the
girl child, Kavita started residing with the family of the accused, is
the deposition. Vikas has testified as to the physical assaults to
which his mother Gitabai was subjected by the accused at the
instigation of Kavita. Gitabai was always depressed, is the
deposition. He has deposed that on 19.7.2000 the accused
assaulted his mother Gitabai. The accused and Kavita went to
sleep and Gitabai was weeping the whole night. The next day
when Vikas returned from school at 4.00 pm, he came to know of
the incident.
Few omissions are brought on record in the cross
examination. However, the omissions are not proved through the
Investigating Officer Mahadeo Ande (PW 11) whom the defence
declined to cross examine. Be it noted, that the testimony of Vikas
that the accused and Kavita were sleeping together, is not
challenged. Other than giving a general suggestion, there is no
serious challenge to the testimony that Geetabai was subjected to
physical assault. Testimony that the accused assaulted Geetabai
on 19.7.2000 and while the accused and Kavita retired to bed, the
deceased Geeta was weeping the whole night, is not challenged.
The suggestion that Vikas is testifying at the instance of the
brother of the deceased, is denied.
The other material witness is PW 10 Manish. He has
deposed that when he asked Gitabai, the maternal aunt of the
witness, for water, accused Kavita asked Gitabai to look after her
daughter. Geetabai asked Kavita to serve water to Manish, Kavita
did not serve the water and went to the courtyard and talked with
the accused. The accused came inside the house and started
assaulting Geetabai. Geetabai sustained injury to her head and
loss of tooth. It was then that Geetabai consumed poison saying
that in order to avoid the day to day quarrel it is better to die.
The omissions brought on record, are not proved. The core
and substratum of the testimony is not seriously challenged. The
evidence that Kavita refused to serve water, had a talk with the
accused and Gitabai was physically assaulted by the accused, is
not challenged.
The prosecution is successful in proving that the
accused and Kavita were in illicit relationship. The accused did
perform the marriage of Kavita. However, Kavita delivered a child
within 3 months of the marriage and after the delivery again
started residing with the accused. The accused and Kavita were
sleeping together. Nothing further needs to be established for a
judicial mind to hold that the illicit relationship is established.
Such brazen illicit relationship, with the other woman in the life of
the husband residing in the matrimonial home, is sufficient to
cause serious injury to the mental and emotional health of a
woman. The evidence on record is that, the deceased Gitabai and
the accused quarreled frequently. Gitabai was subjected to
physical abuse, she was assaulted not only a day prior to the
incident, the incident of consumption of poison occurred after over
trivial issue Geetabai was physically assaulted by the accused. The
conscious of this Court is satisfied, on a holistic appreciation of
evidence, that the conduct of the accused was willful and was such
as is likely to cause injury to the emotional health of the deceased.
The willful conduct was such as is likely to drive, even a woman of
normal sensitivity and sensibility to consider taking the extreme
step. The learned Sessions Judge, has correctly recorded a finding
that the conduct of the accused was such as is likely to drive the
deceased to commit suicide. The acquittal of the accused under
section 306 of the IPC, after recording the said finding, is rather
inexplicable. However, since the State has not challenged the
acquittal under section 306 of the IPC, I refrain from making any
further observation.
(i) The appeal is sans substance and is rejected.
(ii) The accused be taken into custody forthwith to serve
the sentence. The bail bond of the accused stand cancelled.
(iii) The accused shall be entitled to set of under section
428 of the Code of Criminal Procedure.
(iv) Fees of the appointed counsel are quantified at Rs.
5,000/-
(v) Police Station Officer, Police Station Savner, District
Nagpur is directed to file a compliance report in the Registry
of this Court within 15 days.