Judgment apeal-131-97
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 131 OF 1997
WITH
CRIMINAL BAIL APPLICATION No. 464 of 2011.
IN
CRIMINAL APPEAL NO. 131 OF 1997
Ratan Laxman Jagzap, ]
Age 25 years, residing at ]
Nashik City, Hanumanwadi, ]
Panchawati, Taluka and District ]
Nashik ]
.. APPELLANT.
Versus
The State of Maharashtra ] ..RESPONDENT.
Mr. Z.M. Avhad with C.T.Chandratre, Advocate for the Appellant.
Mrs P.P. Bhosale,A.P.P. for the State.
....
CORAM : A. R. JOSHI, J.
DATE OF RESERVING
THE JUDGMENT : 14th April, 2011
DATE OF PRONOUNCING
THE JUDGMENT: 4th May, 2011.
JUDGMENT:1.
Heard rival submissions at length on this appeal preferred by original
accused No.1 challenging the judgment and order dated 31.1.1997 passed
by Additional Sessions Judge, Nashik in Sessions Case No. 172 of 1996.
2. Originally four accused, including the present appellantaccused
No.
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Judgment apeal-131-97
1, were charged for the offence punishable under Sections 498A
and 306 of
the Indian Penal Code read with Section 34 of the I.P.C.
3. By the impugned judgment and order, original Accused Nos. 2,3 and
4 were acquitted of all the charges. Present appellant Accused No.1 was
also acquitted of the offence punishable under Section 306 read with section
34 of the I.P.C. However, he is convicted only for the offence punishable
under Section 498A
of I.P.C. and was sentenced to suffer rigorous
imprisonment for six months and to pay a fine of Rs.500/in
default of fine
to undergo imprisonment for one month.
4. Being aggrieved by the said judgment and order, the appellant
Accused No.1 preferred the present appeal. During the pendency of the
present appeal, he was released on bail. However, when the matter was
taken for final hearing before this Bench, he did not remain present, so also
his Advocate was not present. Hence, sometime in January, 2011, initially
bailable warrant was issued against the appellant and subsequently nonbailable
warrant was issued in February, 2011 and thereafter present
appellant was taken in custody and presently he is in jail. As such he had
preferred Criminal Application No. 464 of 2011 for bail. However, it was
thought fit under the circumstances of the case, considering the pendency of
the appeal since the year 1997, to decide the appeal itself on merits instead
of deciding the application for bail. Hence, the present order.
5. Certain factual position, as emerged out from the material available
before the learned Sessions Court, is required to be narrated in order to
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Judgment apeal-131-97
have the proper perspective of the matter and in order to appreciate the
arguments advanced on behalf of the appellantaccused
No.1. Such position
is as under:(
i) All the four accused were charged for the
offence punishable under Section 498A
and 306 of
I.P.C.read with Section 34 of I.P.C. for treating the
deceased Chandrakala wife of the appellant with
cruelty and subjected her to such harassment of such
a nature and to such an extent and was likely to
drive her to commit suicide.
(ii) Inspite of the charge for offence punishable
under Sections 498A
and 306 read with Section 34
of I.P.C.,charge under section 306 of I.P.C.was not
established against all the accused.
(iii) Charge of 498A
of I.P.C.was also not
established against accused Nos. 2 to 4 who are the
relatives of accused No.1. Only charge established
against the appellantaccused
is punishable under
Section 498A
of I.P.C.
(iv) Total eight prosecution witnesses were
examined during the trial and out of them material
witnesses are PW No. 1, father of the deceased PW
No.6, mother of the deceased and one Rajmal – PW
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Judgment apeal-131-97
No.4, the husband of one Smt. Ujawala, mistress of
the present appellantaccused
No.1. P.W.No.2 is the
Medical Officer whose evidence is on the aspect of
performing postpostmortem
report of 11th
November, 1995 on the dead body of the victim Smt
Chandrakala wife of present appellant.
(v) P.W.No.7 is brother in law of Accused No.1.
However, he did not support the case of the
prosecution and turned hostile. P.W.No.3 is one Smt
Kalpana, who is a tenant of the premises at Dhule
who deposed about the joint stay of the appellant
along with his mistress Ujawala staying in a house
along with brother of Ujawala and one son each of
the appellant and said Smt Ujawala. P.w.No.5 is
maternal uncle of deceawsed Chandrakala who
deposed as to – at one occasion the appellant
demaning Rs.500/from
him for repair of the motor
jeep purchased by the appellant. The last
prosecution witness No.8 is the Investigating Officer.
6. This Court has gone through the substantive evidence of above
prosecution witnesses, and mainly the evidence of P.W.Nos. 1 and 6.
According to them, their daughter Chandrakala used to tell them regarding
the illtreatment
meted out to her by present appellant – her husband.
5
Judgment apeal-131-97
7. Prior to discussing the evidence of said prosecution witnesses as to
applicability or otherwise of Section 498A
of the I.P.C., it must be said that
suicidal death of Chandrakala is not a disputable question and from the
evidence of medical witness P.W.No.2 this fact has been amply proved. Now,
the only question is, whether there was a cruelty practiced to Chandrakala.
On this aspect, what is contemplated by Section 498A
of I.P.C.is required to
be construed – Section 498A
reads :S.
498A.
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 fine.
Explanation.For
the purposes 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 security is on account of
failure by her or any person related to her to meet
such demand.
8. There are two modes of cruelty mentioned in the Section. Apparently,
the present case was considered by the trial Court as establishment of a
6
Judgment apeal-131-97
mental cruelty on the wife i.e. deceased Chandrakala due to the actions on
the part of the present appellant – accused No.1 and this is more so in view
of he having extra marital relations with one Smt Ujawala wife of P.W.No.4 –
Rajmal. The trial Court has discussed this aspect in detail and which is also
the case of the prosecution, inasmuch as the appellant – accused No.1
developed a love affair with one Ujawala, a married woman who was the
wife of P.W.No.4 Rajmal. Said love affair was started on account of the
business transactions between P.W.No.4 Rajmal and the present appellant.
Rajmal P.W.No.4 was using the transport services of the present appellant for
the purpose of transporting the goods manufactured in the factory of Rajmal
and for that purpose initially the appellant had hired one tempo and
subsequently purchased his own jeep. In such business relation the
appellant came in contact with Ujawala, wife of Rajmal, and as such
subsequently Ujawala left her matrimonial house and went to Dhule and
started residing along with the appellant accused
No.1 in one house along
with son of the appellant and also the son of Ujawala from her marriage
with Rajmal. This extra marital relation of the appellant was known to the
deceased Chandrakala and she tried to divert the mind of the appellant
when he used to visit his house. Deceased Chandrakala tried to stop her
husband having illicit relations with Ujawala but in vain. This conduct of
the appellantaccused
is considered as mainly cruelty to his wife deceased
Chandrakala and for this reason punishment was awarded against the
appellant for the offence punishable under Section 498A
of I.P.C. But,
considering the material deficient of bringing home the charge for the
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Judgment apeal-131-97
offence punishable under Section 306 of the I.P.C., the Trial Court acquitted
appellant Accused No.1 for the said charge.
9. On carefully examining the substantive evidence of P.W.No.4 –
husband of Smt Ujawala, it transpires that the deceased Chandrakala had
been to the house of said witness for making enquiry regarding her husband
– the appellant having extra marital relations with the wife of P.W.No.4.
Further the evidence of P.W.No.4 reveals that his wife Ujawala had left the
matrimonial house and initially went to her parents at Pune and
subsequently left Pune and instead coming back to matrimonial home went
at some other place and subsequently found at Dhule where she was staying
with present appellant along with her son from her marriage with P.W.No.4.
Said stay of the appellant with Ujawala at Dhule is fortified by the
substantive evidence of P.W. No.3 Kalpana, who was neighbour of the
accused appellant, residing at Dhule. Substantive evidence of said P.W.No.3
reveals that once Smt Ujawala had told her in casual talk that the appellant
was her husband. Said P.W. No.3 Kalpana had identified the appellant
during her substantive evidence of the trial Court. Nothing was extracted
from her crossexamination
as to doubt her evidence as to accused No.1 and
Smt Ujawala staying as husband and wife at Dhule.
10. Considering the substantive evidence of these witnesses, Rajmal and
Kalpana, trial Court came to the conclusion regarding the truth in the
complaint of Chandrakala, made in November, 1995 prior to the incident of
she committing suicide, such complaint was made to her parents that the
appellant was living with his mistress in Dhule and he intends to marry with
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Judgment apeal-131-97
her.
11. Apart from the above, trial Court has also discussed the another
circumstance as to substantive evidence of Rajmal that Chandrakala had
been to his place inquiring regarding her husband. Trial Court has also
placed reliance on the factual position as to the evidence of Kamalbai that
accused No.1 returned back to his house only a couple of days prior to the
occurrence of the incident which took place on 11th November, 1995 when
she consumed insecticide and committed suicide. In the opinion of this
Court, the trial Court has rightly appreciated the evidence of prosecution
witnesses and mainly that of Rajmal P.W.No.4, Kalpanabai P.W.No.3 and also
of the parents of deceased Chandrakala, inasmuch as the proof of the
offence under Section 498A
is concerned regarding mental cruelty due to
illicit relations of the appellant with another woman and this fact was
known to the victim. However, the trial Court did not take into consideration
the mental cruelty as sufficient for Smt Chandrakala to end her life by
consuming poison mentioning that Chandrakala became over sentimental
after knowing that her husband had kept a mistress and out of desperation
she had taken extreme steps of committing suicide. In the opinion of this
Court, in the absence of any appeal against the acquittal of the appellantaccused
No.1 for the offence punishable under Section 306 of the I.P.C. what
is construed is whether the conviction for the offence punishable under
Section 498A
of I.P.C. is sustainable or not.
12. In view of the above discussion and the merit of the substantive
evidence of the witnesses mentioned above, in the opinion of this Court,
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Judgment apeal-131-97
there is nothing to interfere with the impugned judgment and order
regarding conviction of the appellant for the offence punishable under
Section 498A
of I.P.C. more so, considering the quantum of punishment
inflicted i.e. for six months and fine of Rs.500/.
In the result, there is no
substance in the present criminal appeal. Hence, same is disposed of with
the following order.
: O R D E R :
(i) Criminal Appeal No. 131 of 1997 is dismissed.
ii) In view of disposal of the main appeal, Criminal
Application No. 464 of 2011 does not survive and same is
disposed of accordingly.
(A. R. JOSHI, J.)
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