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A 498A conviction judgement from Mumbai HC

Bench: A Bhangale

1 apeal-524-96.doc

Ladda

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 524 OF 1996

(1) Ramchandra Kundalika Jadhav,

age 33 years, resident of Pusegaon,

Taluka Khatav, District Satara.

(2) Sau. Lata Ramchandra Jadhav,

age about 28 years, resident

of Pusegaon, Tal. Khatav,

District Satara.

(3) Sau.Subhadra Kundalika Jadhav,

age about 55 years, resident of

Pusegaon, tal.Khatav, District Satara.

(4) Shivaji Kundalika Jadhav,

age about 28 years, resident of

Pusegaon, Taluka Khatav,

District Satara. .. .. Appellants. versus

The State of Maharashtra .. .. Respondent. None for the Appellants.

Advocate Mr B.B.Rajput for the Appellants absent. Mr K.V. Saste, Additional Public Prosecutor for the RespondentState. 2 apeal-524-96.doc

CORAM: A. P. BHANGALE, J.

DATE : 29th NOVEMBER , 2010.

ORAL JUDGMENT.:

1. The challenge in this appeal is limited to conviction of the appellants under sections 498A read with section 34 of the Indian Penal Code recorded by learned Additional Sessions Judge, Satara on 17.8.1996 in Sessions Case No. 213/1992 whereby the appellants were acquitted for offence punishable under section 306 read with section 34 of I.P However, they were found guilty for an offence punishable .C.

under section 498A of I.P.C. and they were sentenced to suffer R.I. for six months and to pay fine in the sum of Rs.500/, payable by each of them, and in default to suffer R.I.for one month each, by each of them.

2. Advocate Mr B.B.Rajput who appears on record remained absent at final hearing of this appeal. It is the duty of Advocate accepting criminal brief to attend the case at final hearing. Negligence in this regard may amount to professional misconduct. Relavant 3 apeal-524-96.doc

observation of the Supreme Court in S. J. Chaudhary vs. State (Delhi Administration) AIR 1984 SC 618 wherein it has been observed thus :

“The trial before the Sessions Court must proceed and be dealt with continuously from it’s inception to it’s finish. It will be in the interest of both prosecution and the defence that the trial proceed from day today. Sessions cases must not be tried piecemeal. Once the trial commences, be must except for a very pressing reason which makes an adjournment inevitable, proceed de die in diem until the trial is concluded”. A criminal appeal is further continuation of trial proceedings and has same urgency to be concluded as early as possible by same analogy. An Advocate accepting criminal appeal must attend it at final hearing. His failure without any pressing or inevitable reason will amount to professional misconduct or breach of his professional duty. It is now well settled that criminal appeal cannot be dismissed on the ground of default in appearance, the court has to go through the record of the case even in the absence of the appellant or their counsel 4 apeal-524-96.doc

and decide the matter on merits [ See Parshuram and Anr Vs State of Orissa, (1994) 4 SCC 664].

3. I have heard the learned A.P . for the RespondentState. I have .P

also perused the appeal memo and the paper book. Learned A.P . took .P

me through the evidence on record. It appears that in all nine witnesses were examined by the prosecution. In order to prove its case pursuant to the charge framed against the appellants under section 306 as also under section 498A read with section 34 of I.P.C.

4. It is the case of the prosecution that on 10.6.1992 at about 9:30 p.m. at village Pusegaon Sau. Madhuri Jadhav committed suicide by consuming poison, instigated by her husband and relative of her husband, as a result of cruelty meted out to her after her marriage on the ground that she is unable to beget any issue calling her often as “Wanzoti” (woman who did not beget any child) and inflicting mental cruelty upon her.

5. An offence was registered at Pusegaon Police Station vide Crime No.39 of 1992. P.S.I. Shri Waykar (PW 9), took over the investigation. After completion of usual investigation, charge sheet came to be submitted in the court of learned Judicial Magistrate, First Class, Vaduj 5 apeal-524-96.doc

who committed the case to the Court of Session at Satara. Learned trial Court framed charge against the accused/appellants for the offences punishable under Sections 498A, 306 read with section 34 of I.P.C. to which the accused/appellants pleaded not guilty and claimed to be tried.

6. I have gone through the evidence of nine witnesses, particularly, evidence of PW 3 Maya, (sister of the deceased), PW 4 Hanumant, (fa ther of the deceased) and PW 5 Amrut (uncle of the deceased). It ap pears that learned trial Judge appreciated their evidence cumulatively and found that through out their evidence there were no contradictions or improvements or material variations. They were close relatives of de ceased Madhuri. During visit of Madhuri at her maternal home for about three weeks, she had complained about mental cruelty inflicted upon her by her husband and relatives of her husband on account the fact that she had no issue from her marriage.It is necessary to consider the relevant penal provision at this stage. Section 498A. Husband or relative of husband of a woman subjecting her to cruelty:

Whoever, being the husband or the relative of the hus band of a woman, subjects such woman cruelty shall 6 apeal-524-96.doc

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;

(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 or is on account of failure by her or any person related to her to meet such demand. It is relevant to note that it was by the Criminal Law (Second Amendment) Act No. 46 of 1983, which re ceived the President’s assent on 25th December 1983, that Section 498A was inserted in the Penal Code. The Statement of Objects and Reasons of the said amending Act referred to the increasing number of dowry deaths, which was a matter of serious concern. The extent of the evil was commented upon by the Joint Committee of both the Houses to examine the working of the Dowry Prohibition Act, 1961. It was found that cases of cruelty by the husband and relatives of the husband 7 apeal-524-96.doc

which culminate in suicide by, or murder of, the hapless woman concerned, constitute only a small fraction of cases involving such cruelty. An offence in the nature of abetment to commit suicide may also attract the provi sions of Section 306, l.P which was already on the .C.

statute book. It was, therefore, proposed’ to suitably amend the Indian Penal Code, Code of Criminal Proce dure, 1973 and the Indian Evidence Act, 1872 to effec tively deal with not only the cases of dowry deaths, but also the cases of cruelty to married women by their in laws. It was with a view to achieving this object that, in ter alia, Section 498A was inserted in the Penal Code. The other amendments effected by Criminal Law (Amendment) Act, 1983 were to Sections 174 and 176 of the said Criminal Procedure Code and the insertion of Section 198A in the Cr. P. C. The necessary amend ment in the First Schedule to the Code of Criminal Pro cedure, inserting Section 498A, was also made. As far as the Indian Evidence Act, 1872 is concerned, after Section 113, Section 113A was inserted raising a pre sumption against the husband that he or his relative had abetted the suicide by the married woman. If husband and other close relatives of married woman fequently call her as “Wanzoti” to blame her for her inability to beget any child 8 apeal-524-96.doc

out of marriage it does constitute illtreatment,blame or insult amounting to mental cruelty. It appears that learned trial Judge also examined documentary evidence such as post card (Exh.30) in the light of oral evidence of PW 3 to 5. The trial Court observed thus : “20. To my mind, when Sau. Madhuri, who was an educated, recently married girl, had absolutely no cause to make false allegations against her husband and inlaws and the evidence of all the prosecution witnesses is absolutely uniform on the point of the complaint of ill treatment narrated by the deceased Sau.Madhuri to them, I hold that the prosecution has proved the charge of cruelty beyond reasonable doubt. The accused persons could not bring on record as to what was the enmity between the accused persons and Narayan Appa of Pusegaon that taking advantage of the unnatural death of Sau, Madhuri, Narayan Appa insisted the complainant to lodge a false report against the accused persons.”

7. Learned trial Judge found testimonies of prosecution witnesses worthy of credence to find appellants accused guilty of offence punishable under section 498A of I.P.C. In the course of statement of the appellant recorded under section 313 of Cr.P.C. when questioned about the sentence to be imposed, the appellants prayed for mercy and 9 apeal-524-96.doc

expressed their readiness to pay fine instead of sentence of imprisonment.

8. Having scrutinized the evidence led, it does appear that the learned trial Judge found the appellants guilty of inflicting mental cruelty upon the the deceased, in furtherance of their common intention, on the pretext that the deceased was unable to beget the child, which amounts to an offence punishable under section 498A read with section 34 of I.P.C. After cumulative evaluation of evidence of witnesses examined no fault can be found with the findings recorded by the trial Court regarding guilt of the appellants under section 498A read with section 34 of I.P.C. I do not find any infirmity to set aside the conviction recorded by the trial court.

9. In the result, the appeal being sans merits, it is dismissed. The bail bonds of the appellants stand cancelled. The appellants shall surrender before the trial Court within a period of four weeks in order to undergo remaining sentence imposed against the appellants by the trial Court.

(A. P. BHANGALE, J.)

10 apeal-524-96.doc

http://indiankanoon.org/doc/931072/

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