Sunday 12 June 2016

When offence U/S 498A of IPC is made out against husband?

Thus, even a cursory glance to the notes written by Prachi,
few months before her death reveal the pathetic state of affair prevailing
between Prachi and the appellant.  The very fact that she has urged again
and again to the appellant not to beat her, not to abuse her and  get over
with his obsession for Preeti makes it clear that it was not merely a
marital discord between the parties but it was a clear case of harassment
and cruelty. Prachi was beaten, assaulted and abused in filthy language
by   appellant.   These   notes   also   make   it   clear   that   the   appellant   was
addicted to liquor and was having an affair with Preeti, the another
woman in his life.
41.  In   our   considered   opinion   if   this   is   not   cruelty   as
contemplated under Section 498A of Indian Penal Code, then nothing

can come in the purview of cruelty.   The trial Court has, therefore,
committed   an   error   in   discarding   this   evidence   of   physical   abuses,
harassment and cruelty, merely calling it as a 'marital discord' between
the spouses and acquitting the appellant of the charge under Section
498A of IPC. The trial Court has also committed grave error in rejecting
the evidence of Prachi's parents and sister on the ground of so called
inconsistencies, which are of very minor   nature.     Their evidence is
consistent interese and completely stand supported and   corroborated
from the hand written notes of Prachi. The finding of the trial Court of
acquitting the appellant, for offence under Section 498A of the IPC, is
therefore, required to be quashed and set aside holding the appellant

guilty for the same.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.656 OF 2005
Yogesh Dinesh Bharadwaj
    V/s.
State of Maharashtra  ]

CORAM  :  SMT. V.K. TAHILRAMANI, ACTING CJ &
DR. SHALINI PHANSALKAR­JOSHI, J.
  JUDGMENT PRONOUNCED ON : 5th FEBRUARY, 2016
Citation:2016 ALLMR(CRI)1895 BOM



1.   The appellant, who stands convicted by the judgment and
order   dated   16th  June,   2005,   of   Second   Additional   Sessions   Judge,
Thane, in Sessions Case No.142 of 2004, for the offence punishable
under Section 302 and 201 of Indian Penal Code, and sentenced to suffer
imprisonment for life and to pay fine of Rs.5,000/­, in default to suffer
rigorous imprisonment for one year and rigorous imprisonment for 3
years   and   to   pay   fine   of   Rs.3,000/­   in   default   to   suffer   rigorous
imprisonment for six months, respectively; by this appeal, challenges his
conviction and sentence.
2.  As by the said judgment and order itself, the appellant is
acquitted, for the offence under Section 498A of Indian Penal Code,

being aggrieved thereby the original complainant has preferred Revision
Application, for setting aside the said order of acquittal and also for
enhancement of sentence of appellant from life imprisonment to death
penalty.
3.  Brief facts of the appeal and Revision Application, can be
stated as follows:­
Appellant,   is   the   husband   of   P.W.2   Dinkar   Kausadikar's
daughter Prachi, since deceased.   It was a love marriage performed in
August, 2000 despite the parents of Prachi initially not willing for the
same to give consent and on her insistence gave consent.   Prachi was
Architect and appellant was in private service.   After marriage, they
resided with his parents for about three months. Thereafter they started
residing in a rented house at Flat No.4 at Anadam Co­operative Housing
Society   at   Koparkhairane.   Within   3   to   4   months,   P.W.2   Dinkar
purchased the said flat in the name of his  wife Sandhya and daughter
Prachi.   P.W.6 Rashmi, the elder sister of Prachi was also residing in the
same building, on the 4th floor. Within few days after the marriage, the
appellant became addicted to liquor and started illtreating   Prachi. He
also developed an affair with his ex­colleague Preeti Surange. She used
to visit his house in the absence of Prachi.   That created a rift in the

relationship between the appellant and Prachi. Her parents attempted to
persuade and convince the appellant, but it was in vain.
4.  In   August/September   2001,   in   the   midnight,   Prachi
informed   her   parents   on   phone   that   the   appellant   was   in   drunken
condition and beating her. They reached her home to find the appellant
under the influence of liquor. They took Prachi to their home. On the
next day, the appellant apologised toher for that incidence and therefore,
Prachi again returned to his house. However, there was no improvement
in the conduct of appellant. He was also arrested by Vashi Railway
Police, in connection with robbery. P.W.2 Dinkar, Prachi's father got
him released on bail. This conduct of the appellant ultimately drove the
parties to take decision of divorce by mutual consent. The petition to that
effect was filed in the Civil Court at Thane in April, 2002. On filing such
petition, Prachi shifted to the house of her parents; whereas appellant left
for Delhi. His girl friend Preeti followed him. The appellant's father then
approached     P.   W.2   Dinkar,   to   make   efforts   for   Prachi   to   resume
cohabitation with appellant. Hence Prachi went to  Delhi to convince the
appellant. In November, 2002, appellant returned to Navi Mumbai and
both of them started residing together on the assurance of appellant that
he will improve his conduct. 

5.    Flat   No.304   in   Konkan   Housing   Co­operative   Society,
Sector No.15, was taken on rent by them.  P.W.2 Dinkar, Prachi's father,
paid Rs.40,000/­ towards deposit of the said flat and appellant and Prachi
started residing there.   However, the conduct of the appellant did not
improve. He resumed his relationship with Preeti. Hence once again the
relations between the spouses became strained.   On 18th  March, 2003,
Preeti  was seen in the house of appellant by Rashmi, the elder sister  of
Prachi.  She informed Prachi about the same and then Preeti was driven
out of the house.
6.  In this backdrop, on 31st March, 2003 at odd hours of 4.00
a.m., Prachi's father P.W.2 Dinkar received two blank calls. Hence he
became worried and tried to contact Prachi on phone. Instead of Prachi
answering the said call, appellant responded and told that Prachi had
gone for her work in Intelenet Global Services for her shift hours from
5.30   p.m.   to   2.30   a.m.   However,   within   15   minutes   thereafter,   the
appellant made another phone call to her father and informed that Prachi
was no more; she was dead and put the phone down.  Prachi's parents,
then immediately contacted their daughter Rashmi who was residing
near her house and instructed her to go to Prachi's house. P.W.6 Rashmi,
then rushed to house of Prachi in  her car. The door of the house was

open and appellant was sitting in the hall. Prachi's body  was stuffed in
the cabinet which was within the wall of the hall below the window.
P.W.6 Rashmi,   in a frightened state of mind, urged appellant to take
Prachi out and to give her medical aid. Appellant was reluctant saying
that Prachi was already dead.  P.W.6 Rashmi, then threatened to contact
police, hence appellant took out Prachi's body from the cabinet   and
threw in the   backside of   Rashmi's car. They took her body to MGS
Hospital. The Doctor on duty, on examination, declared that Prachi was
dead.   In   the   meantime   Prachi's   parents   after   contacting   their   family
friend Dr. Motwani, rushed to the house of Prachi. On coming to know
that Prachi was already taken to the hospital, they also rushed there.
They found marks of violence and blood oozing from nostril and mouth
of dead body of Prachi.
7.  The information of the incident was given  by the hospital to
Turbhe police station. Initially A.D. No.46 of 2003 was registered on the
said information.  PSI   Kaldate,   then   conducted   inquest   panchnama
(Exh.15) and sent the dead body for postmortem. P. W. 4 Dr. Bhushan
Jain,  attached to Navi Mumbai Municipal Corporation Hospital, Vashi,
performed postmortem and found the cause of death as head injury with
attempted throttling. Within few hours after sending the dead body for

postmortem,   P.W.9   PSI   Nalavade,     conducted   spot   panchnama   vide
exh.46. On the spot, P.W. 10 API Surve found blood stains on the wall,
curtain   and   computer   cover.   The   metal   flower   pot   lying   there,   was
having dents and blood stains thereon. All these articles came to be
seized. Similarly some hair lying on the floor were also seized alongwith
hand   written   notes   (Exh.51   and   52)   which   were   found   below   the
mattress.
8.  On   the   same   day   P.W.2   Dinkar,   Prachi's   father,   lodged
complaint (Exh.17) against the appellant. On his complaint C.R.No.80 of
2003 came to be registered against appellant for the offence punishable
under Sections 498A, 302 and 201 of the Indian Penal Code. P.W.10
API   Nalavade   took   over   investigation   of   the   case.   He   arrested   the
appellant on the same day. On the next day, during police custody at the
instance of appellant, his blood stained clothes came to be recovered
under panchnama Exh.20 from the washing machine in his house. As a
part of further investigation, statements of witnesses were recorded. The
clothes of deceased Prachi were seized under panchnama. All the seized
Muddemal   articles   were   sent   to   Chemical   Analyzer.     The   Chemical
Analyzer's Reports are produced in the case vide Exh.26 to 28 and the
postmortem notes vide exh.25. Further to completion of investigation,

chargesheet is filed against the appellant in the court of J.M.F.C. Vashi. 
9.   On committal of the case to the Sessions Court, trial Court
framed charge against the appellant vide exh.5. The appellant pleaded
not   guilty   and   claimed   trial,   raising   defence   of   denial   and   false
implication.   
10.  In supports of it's case, prosecution examined  10 witnesses
including P.W.2 Dinkar, P.W.5 Sandhya and P.W.6 Rashmi, parents and
sister   of   Prachi,   respectively;   P.W.7Ashok,   the   panch   witness  to   the
inquest panchnama and recovery panchnama of the clothes of appellant;
P.W.4   Dr.   Bhushan   Jain,   who   conducted   postmortem,   P.W.8   Vilas,
friend of appellant and two police Officers namely, P.W.9 Nalawade and
P.W.10 API Surve.   Uttamkumar Mishra, the watchman of the society
where appellant and deceased were residing and Fatima Sayyed who was
working as Team Leader in Intelenet Global Services where  Prachi was
serving, were examined as Court witnesses.
11.  In the light of this evidence, statement of appellant under
Section 313 of  Code of Criminal procedure was recorded. The appellant
submitted   his   written   statement   to   substantiate   his   defence.   On
appreciation of this oral and documentary evidence on record, the trial
Court was pleased to hold the guilt of appellant to be proved beyond

reasonable doubt for the offence punishable under Section 302 and 201
of   Indian   Penal   Code   and   convicted   &   sentenced   him   as   aforesaid;
whereas acquitted him for the offence under Section 498A of IPC.
12.  This judgment and order of the trial Court is challenged in
this   appeal   by   learned   counsel   for   appellant;   whereas   supported   by
learned APP.  The finding of acquittal, as recorded by the trial Court in
respect   of   offence   punishable   under   Section   498A   of   the   IPC   is
challenged by learned counsel for the Revision Applicant and also asked
for  enhancement   of   sentence   of  appellant   from   life   imprisonment   to
death  penalty, considering the gravity of the offence. 
13.  In   our   considered   opinion,   before   adverting   to   the   rival
submissions advanced at bar by learned counsels and learned APP, it
would be useful to refer to the evidence on record. 
14.  In order to prove the homicidal death of Prachi, prosecution
has relied upon the inquest panchnama  Exh.15, proved through evidence
of   P.W.1   panch   Dinkar   Kale   which   shows   the   presence   of   various
abrasions and injuries on the dead body of Prachi with blood oozing
from nostril and mouth and the   black and red spots also seen on the
forehead, behind left ear, on the left side on neck.
15. P.W.4 Dr. Bhushan Jain has conducted postmortem on her

dead body.  On external examination, he found the following injuries.
 Injury No.1: Contusion (CT) over left forehead near middling 3 x
2 cm.
 Injury No.2 : Contusion over right forehead 2.5 x 2 cm.
 Injury No.3: Contusion over left occipital region involving left ear
upto left face in front  of tragus  10 x 6 reddish
 Injury No.4 : Abraded contusion (Ab.Ct) over tip of left shoulder
superiorly 3 x 2 cm reddish
 Injury No.5: Abrasion over left arm posteriorly near elbow joint 4
x 2.5 cm.
 Injury No.6:  Two abrasions over left elbow joint posteriorly and
medially of size 2 x 1 cm and 1 x 1 cm.
 Injury No.7 : Abrasion over dorsum of left hand medially and at
the base of little finger of size 1 x 1 cm.
 Injury No.8 : Contusion over left palm at  hypothermia region 5 x
3 cm.
 Injury No.9 Two parallel linear scars over left wrist anteriorly of
length 4 cm each.
 Injury No.10 Abrasion over right shoulder posteriorly 4 x 3 cm.
 Injury No.11: Abrasion over right elbow joint posteriorly 7 x 5
cm.
 Injury No.12 : Abrasion over right forearm postero­medially near
elbow joint 3.5 x 2 cm.
 Injury   No.13:   Multiple   Contusions   seen   over   right   forearm
involving dorsum of the hand of size ­varying from 1 x 1 cm to 3

x 2 cm.
 Injury No.14: Contusion over right palm over hypothenar region 5
x 3 cm. 
 Injury No.15: Two contusions seen over right thigh anteriorly near
knee joint one below another of size 3 x 3.
 Injury No.16: Abrasion over right leg anteriorly below knee joint
1 x 1 cm.
 Injury No.17: Contusion over right leg medially below knee joint
4 x 2.5 cm.
 Injury No.18 : Abrasion over right ankle joint antero laterally 1 x
0.5 cm.
 Injury No.19 :  Abrasion over dorsum of right foot at the base of
little toe 1 x 1 cm.
 Injury No.20 : Abrasion contusion dorsum of left foot laterally 1 x
0.5 cm.
 Injury No.21: Abrasion contusion left knee laterally 4 x 3 cm.
 Injury No.22 :  Ulcer seen over left back above gluteal region of
size 6 x 4 cm.
 Injury No.23 : Two abrasions seen over right back near mid­line
below thoracic cage one below another of size 1x 0.5 cm.
 Injury No.24: Abrasion over right back lat to above injury of size
1 x 0.5 cm. 
On internal examination, he found following injuries.

 Subgadial contusion seen over:­
1. Left frontal region of size 2 x 2 cm.
2. Right  occipital region of size 7x5 cm.
3. Lt. Temporo occipital region of size 11 x 7 cm.
Brain showed contusions over left temporal left parietal, right
parietal and right occipital lobe of size 2 x 1 cm, 1x1 cm and 2
x 1 cm each reddish.
In   thorax   walls   multiple   tiny   haemorrhagic   contusions   seen
over anterior walls in sternal in an area of 8 x 6 cm reddish on
internal   examination   of   neck   haemorrhagic   contusion     seen
over left side of the neck of size 5 x 3 cm in middle 1/3 rd
region   antero.   Laterally   strap   muscle   contused   irregularly
tracheal mucosa congested .
Both congested and edematous with petechial haemorrhage. 
16. In his opinion, the cause  of death  was head  injury with
attempted throttling.   The postmortem notes are prepared accordingly
vide Exh.25.  He is cross examined at length by learned defence counsel.
However,  nothing  worthwhile  is  elicited  in  his cross examination  to
challenge his opinion that it was a case of homicidal death. He has been
categorical about the fact that the injuries found to the head and trachea
were sufficient in the ordinary course of nature to cause death and those
injuries cannot be either self inflicted or accidental one. He has further

ruled out the possibility of these injuries being caused while body being
stuffed or pushed into cabinet. According to him, having regard to the
size of cabinet and gravity of the injuries, Injury Nos 1 to 3 as mentioned
in Column No.17 of the postmortem report could not be possible. He has
remained unequivocal and firm in his opinion about the cause of death
being   homicidal   and   has   thus,   totally   ruled   out   the   possibility   of
accidental or suicidal death. 
17. Even otherwise, from the fact that the dead body of Prachi
with antemortem injuries thereon was found in the cabinet   leaves no
manner of doubt about the death being homicidal.  There is no possibility
of person committing suicide by confining him or   her in the cabinet.
The presence of as many as 24 injuries on her person with the evidence
of attempted throttling, necessarily leads to irresistible inference that the
cause of her death was homicidal alone.
18.  Now  turning  to   the  marital  life   of   appellant  and   Prachi,
admittedly it was not   smooth one. As deposed by her father P.W. 2
Dinkar, her mother P.W.5 Sandhya and  P.W.6 her sister Rashmi, that it
was   a   love   marriage   between   the   appellant   and   Prachi     which   was
solemnized even despite initial resistance from her parents. After the
marriage, the relations between Prachi and appellant became strained as

appellant became addicted to liquor and beame jobless.  The evidence of
her father proves that 2 ½   months after the marriage, appellant and
Prachi   started   residing   in   a   rented   house   in   Anadam   Co­operative
Housing Society.   Within 3 to 4 months thereafter, he purchased the said
house   in   the   name   of   his   wife     P.W.5   Sandhya   and   Prachi.   After
purchase, he permitted Prachi and appellant to continue to reside in the
said flat. However, within 2 to 4 months thereafter he came to know
from Prachi that appellant was beating her often by drinking liquor.
19.  P.W.6 Rashmi who was residing  in the same society, on the
second floor, had also deposed that once she saw injury below left eye of
Prachi and Prachi told her that she has received it during quarrel with the
appellant. After some days, she again noticed some injury marks on  the
person of Prachi and asked her about it, at that time Prachi did not give
clear answer, but stated that it was her fate. P.W.6 Rashmi had also
deposed about providing at time food to Prachi as Prachi was not having
anything to eat in the house.  Further she has deposed about incident of
broken pieces of glass found in the house of Prachi and Prachi being
taken to hospital as she has sustained injury to her feet. According to
Rashmi, when the appellant's father   came to the house of Prachi, she
found that Prachi was informing him about beating  and harassment at

the   hands   of   the   appellant.   Prachi   had   also   come   to   know   about
appellant's having relations with his colleague Preeti Surange. She has
further deposed about the incident   when Prachi had called her   and
informed about severe beating at the hands of the appellant and feeling
danger to her life from him.
20.  It is undisputed fact, as admitted by appellant himself also
in his statement     recorded  under Section  313 of Code  of    Criminal
Procedure, that a petition for divorce by mutual consent was filed in the
Court. The reason for the same was on account of the marital discord
between the appellant and Prachi which went to such an extent due to
unruly conduct  of the appellant, of being drunk, beating her on several
occasions and having affair with Preeti, that ultimately a decision was
taken by Prachi and appellant to separate amicably by filing petition  for
divorce by mutual consent. Thereafter, as deposed by her father P.W.2
Dinkar and mother P.W.5 Sandhya, Prachi came to reside in their house.
21.    As per evidence of her father, just before the decision of
taking   divorce   by   mutual   consent   was   taken,   at   one   night   Prachi
informed him on phone that appellant was beating her and that  he would
kill her. Hence he alongwith his wife P.W.5 Sandhya, went there by
rickshaw.   When they reached her society, on the ground floor itself,

they heard cries for help from Prachi. When they went to the flat and
knocked the door, the appellant did not open the door.   They forcibly
got the door of the flat opened and found that the appellant was beating
Prachi with kicks and fists. Her   father intervened and took Prachi to
their   house   with   her   clothes   and   other   belongings   as   they   were
apprehending danger to her life. According to their evidence, at that time
appellant was in drunken condition. Prachi stayed   with them for two
days and thereafter the appellant apologised  to Prachi on mobile phone.
He also apologised to her mother P.W.5 Sandhya. Hence Prachi again
went to reside with him. However, thereafter also the appellant did not
improve his conduct and continued to beat and assault Prachi.
22.  This conduct of appellant of  harassment and beating and his
affair with Preeti, led ultimately Prachi to come to her parent's house by
the   end   of   April,   2002   and   express   her   desire   for   divorce.   As   per
evidence of her father, he called upon the appellant and persuaded him to
give divorce by mutual consent  as there was no improvement in their
relations. The appellant agreed and in May, 2002, divorce petition was
filed in the Court at Thane. Thereafter, Prachi started residing in the
house of her parents. However, on 29th May, appellant's father came to
P.W. 1 Dinakar Prachi's father and informed him that the appellant was

arrested by Railway Police, in connection with robbery and kidnapping,
he was in police custody. The appellant's father requested to provide
legal assistance and accordingly Prachi's father  got him released on bail.
Further, as a  result of this criminal case, appellant was removed from
the service and he went to Delhi. There, he stayed for three months.
However, as Preeti also followed him to Delhi and insisted on marrying
with him, his father again  came to the house  of Prachi's father and
requested to send Prachi to Delhi. Prachi went there and returned back.
23. Meanwhile   in   October   2002,   Prachi's   father   sold   his
property for Rs.55 lacs. Some of the amount was deposited by him in the
name of Prachi. As per his evidence, when appellant came to know about
it, he called upon Prachi on phone and expressed his repentance. In
November, 2002, he came to the house of Prachi's parents and stayed
with them, exhibiting his repentance in the conduct and hence Prachi
agreed to resume cohabitation.  
24.  Then Prachi and appellant started residing together in the
flat of his sister at Vashi. As per evidence of Prachi's parents, in January,
2003   Prachi's   father   took   one   flat   at   Konkan   Co­operative   Housing
society   on   rent   by   paying   deposit   of   Rs.40,000/­.   This   fact   is   also
admitted by appellant in his statement under Section 313 of Code of

Criminal Procedure. As per their further evidence, Prachi and appellant
started residing in the said flat at Konkan Co­operative Housing Society,
but within 1 ½ months thereafter dispute started between them.   At that
time appellant was unemployed whereas Prachi was serving in Intelenet
Company, in the II nd shift from 5.30 p.m. to 2.30 a.m. The appellant
continued to beat Prachi and illtreat and harass her. Just few days before
incident, on the night of 18th March, 2003, the appellant and Prachi came
to the house of her parents, at that time, appellant was drunk. 
25.  There is also evidence relating to the incident of once Preeti
coming to the appellant's house in absence of Prachi, as deposed by
P.W.6 Rashmi.  When she saw Preeti coming to the house  of Prachi, she
immediately informed her mother and when her mother P.W.5 Sandhya
came   there,   they   obstructed   to   Preeti   remaining     in   the   house   and
removed her therefrom. They also called Prachi on phone.  The appellant
was present in the house. He gave abuses and became violent. On the
same day, Prachi came to the house of her parents and informed that she
was   receiving   frequent   calls   from   Preeti   on   her   mobile   in   obscene
language.
26.  As per evidence of her parents they made several attempts
again   to   improve   the   conduct   of   appellant,   but   it   was   of   no   use.

Ultimately it resulted into the incident dated 31st  March, 2003.   When
they received two blank calls at about 4.45 a.m. on their mobile phone
with the gap of 15 minutes.  Being apprehensive about safety of Prachi,
they   called   the   appellant   and   asked   him   where   Prachi   was.   Initially
appellant told that she was on duty. However, her mother asked him to
search for Prachi as her duty hours were over by 2.30 a.m. itself. She
instructed appellant to make enquiry about Prachi and make effort to call
upon her.
27. The evidence of Court Witness No.2 Fatima Sayyed reveals
that Prachi has not reported to duty on 31st  March in the night shift.
However, in the morning of 31st March at about 4.30 a.m. she received
phone call from her husband enquiring that Prachi has not returned to the
home. As per her evidence, she informed him on phone that Prachi  has
not come to the duty on that day. The appellant did not inform this fact
to her parents immediately and Prachi's mother again called appellant
after 10 to 15 minutes. At that time appellant told her simpliciter that
Prachi was no more and she was dead. The appellant then disconnected
the phone call. Immediately Prachi's mother made phone call to her elder
daughter P.W.6 Rashmi who was residing nearby and called upon her to
see what has happened.

28.  The evidence of P.W.6 Rashmi proves that on receipt of
phone call from her mother, she rushed to the house of appellant and
Prachi and found the door of the house to be open and the appellant was
present. She asked where Prachi was and he pointed to the cabinet in the
wall below window. She saw Prachi stuffed inside the cabinet.  With the
hope that Prachi may be alive, she urged the appellant to take her to
Doctor and to give her medical aid. However, the appellant was insisting
that Prachi was dead. Rashmi then threatened him that she will call
police, if Prachi was not taken to the hospital. Thereafter appellant took
out Prachi from the cabinet to downstairs and threw her body in the
backside of Rashmi's car. Prachi was then taken to MGM hospital where
she was declared dead. 
29.  The evidence of these three witnesses, who are naturally
close relatives of Prachi, is thoroughly cogent and consistent. There is
absolutely no reason to disbelieve them in any way as they have lost
their   daughter   and   sister   respectively.   As   to   the   evidence   of   P.W.6
Rashmi, she was very much residing near the house of appellant and
Prachi and she was witness to all major incidents or happenings in their
life.   The conduct of the appellant of becoming jobless, then getting
habituated to drinking, his involvement in criminal cases, having affair

with Preeti and on that count subjecting Prachi to beating and assaulting
is  sufficiently   proved   on   record   through   the  evidence   of  these   three
witnesses.
30. All these details of the harassment of Prachi at the hands of
appellant   are   also   found   reflected   in   the   complaint   which   is   lodged
immediately by her father on the very day at 1.30 p.m. after death of
Prachi was found to be homicidal one. The very fact that divorce petition
came to be filed in the Court, may be by mutual consent so as to avoid
bitterness and to help the parties to move ahead in their life, is also
sufficient   to   prove   that   this   decision   was   taken   not   easily,   but   only
because the life of Prachi has become miserable due to the conduct of the
appellant.
31. If   at   all   any   further   corroboration   is   required   to   this
evidence, then it is also sufficiently coming from the hand written notes
of Prachi which were found in the flat  at the time of spot panchnama
itself. These hand written notes of Prachi are totally 6 in number and
were marked as Exh.51. They are proved  through the evidence of P.W.6
Rashmi, who has identified the handwriting of Prachi thereon. There was
one more chit   Exh.52 which is in the handwriting of appellant. These
chits   were   seized   by   the   Investigating   Officer   at   the   time   of   spot

panchnama, in the presence of P.W.7 panch Ashok.  The appellant in his
statement recorded under Section 313 of Code of Criminal Procedure
had admitted these hand written notes and not disputed the fact that notes
at Exh.51 are in the handwriting of Prachi and  note at Exh.52 is in his
handwriting.
32.    These hand written notes of Prachi are eloquent and self
speaking  to prove that Prachi was subjected to beating at the hands of
appellant; they also   also speak about the appellant's love affair with
Preeti,   which   was   a   cause   of   lot     of   mental   torture   and   physical
harassment to Prachi. These notes are written in short in the form of
SMS language and some portion of these notes can be reproduced as
under:­
33.    In one of the note, Prachi has written that, “Yogesh, I
really don't want me to feel that you are stuck with me.  You are under
no obligation from my side. If you are with me because of what my
parents have done for you and what I have done for you, please forget
all that. If you do not want to be  here, you are free to leave me. Only
remember that this time there could be no coming back. I will not
accept  you back ever.  I have done maximum possible for you. I have

accepted more than any normal person would”. 
34.  In  another  note,  written  on  26.01.2003,  just  two  months
before the incident, she has stated, “Something has happened between
her and him. ..   ..   …   what should I do? Should I let it go? I do not
understand.  Am I so ugly that he feels he needs her.   ..   ..  …  … She
has SMSed   me that she is the only one who can quench his sexual
hunger”.
35.  In   the   note   dated   30.1.2003,   she   has   written   that,  “Not
within 15 days into this house, he has hit me twice.  .. …    ...I have
totally lost interest in the marriage, in him.   …   …    He is definitely
seeing her. I know that”.
36.  In the note dated 16.1.2003, Prachi has written that, “I do
not feel this house is mine.   She haunts every moment. She is not
leaving me in piece even for a moment.  Keeps SMSing the whole day.
I have seen him get up at night just to check her SMS. I think he is
still obsessed.  I feel like a intruder.  …... I do not trust him.  Not even
a bit.  He lies a lot”..
37.  In   further   note   she   has   stated   that,  “It   is     getting

unbearable.  ..   …    …  It is my father who without hesitation made
this house in your name, paid deposit despite knowing that bitch spent
five nights in the house”...    ….    … Do not go behind my back and
talk to her.   Do not lie about it then.  ..   …    ..  As I saw the way you
stuck to her. You were talking  so nicely and sweetly to her. You were
saying please and all.  I am asking you, abuse her, you were not. You
do not need any excuse to abuse me”. 
38. In the next note, Prachi has written that,  “I have reached
saturation point, when it has  come to your drinking everyday and
beating me senselessly.   You really have no idea how hard and how
much. I mean please Yogesh, I am ready to jump from   the Kinetic
running   at   full   speed  rather   than   go   home   with   you   in   drunk
condition. Can you understand  what must have been my state of mind
that made me do  it? Just do not hit me any more”.
39. In the note dated 22nd January, 2003, Prachi has written that,
“I do not trust him about her. I know   he is obsessed with her.   He
actually looks forward to her calls and SMSes.  How do I know she
does not come here when I am not here.     He does not control his

drinking urge, but if he can't control his drinking, how do I know  he
can control himself about her?”..   …    …   Please change Yogesh.
Please do....   ..    Please God make him change.”  Please, please please
stop abusing me in the dirty language, nobody in my life has abused
me like you. I mean I am your wife not a sex worker. Do not abuse and
hit me.  It will only make the cracks deeper”. 
40.  Thus, even a cursory glance to the notes written by Prachi,
few months before her death reveal the pathetic state of affair prevailing
between Prachi and the appellant.  The very fact that she has urged again
and again to the appellant not to beat her, not to abuse her and  get over
with his obsession for Preeti makes it clear that it was not merely a
marital discord between the parties but it was a clear case of harassment
and cruelty. Prachi was beaten, assaulted and abused in filthy language
by   appellant.   These   notes   also   make   it   clear   that   the   appellant   was
addicted to liquor and was having an affair with Preeti, the another
woman in his life.
41.  In   our   considered   opinion   if   this   is   not   cruelty   as
contemplated under Section 498A of Indian Penal Code, then nothing

can come in the purview of cruelty.   The trial Court has, therefore,
committed   an   error   in   discarding   this   evidence   of   physical   abuses,
harassment and cruelty, merely calling it as a 'marital discord' between
the spouses and acquitting the appellant of the charge under Section
498A of IPC. The trial Court has also committed grave error in rejecting
the evidence of Prachi's parents and sister on the ground of so called
inconsistencies, which are of very minor   nature.     Their evidence is
consistent interese and completely stand supported and   corroborated
from the hand written notes of Prachi. The finding of the trial Court of
acquitting the appellant, for offence under Section 498A of the IPC, is
therefore, required to be quashed and set aside holding the appellant
guilty for the same.
42.  According   to   learned   counsel   for   the   appellant   the   hand
written notes of Prachi help the case of appellant as they depict Prachi's
deeply frustrated state of mind. An attempt is made to submit that the
notes are eloquent to prove that Prachi was on the verge of committing
suicide   and   therefore,  it   rules  out   the  possibility  of  her   death  being
homicidal in nature. 
43.  However, this argument cannot be accepted for the simple
reason that the manner in which dead body of Prachi was found in the

cabinet, with injuries  to her head and attempted throttling, does not in
any   way   probabilise   the   theory   of   suicide.   The   person   committing
suicide   will   not   cause   24   injuries   to   oneself,   including   attempt   of
throttling and head injuries and thereafter put body in the cabinet. We
have already held that the presence of these multiple injuries on her body
and   presence   of   evidence   proving   attempted   throttling,   coupled   with
unequivocal opinion of P.W.4 Dr. Bhushan Jain, leaves no manner of
doubt that her death was homicidal one. The motive for the same may be
because of Prachi's mentally disturbed condition and resistance which
was     coming   in   the   way   of   appellant's   relations   with   Preeti.   Her
constantly objecting his relations with Preeti and his unruly conduct
must have prompted the appellant to eliminate her from his life. These
hand   written   notes,   thus,   also   explain   the   cause   and   motive   for   the
appellant to commit murder.
44.  Much argument   is advanced by learned counsel for the
appellant as to the timing of death. It is urged that according to P.W.4
Dr. Bhushan Jain, who has conducted postmortem on the dead body of
Prachi, the  death might have occurred 12 to 24 hours prior to time of
postmortem. As the postmortem was conducted in between 11.40 a.m. to
1.30 p.m. on 31.3.2003, it is urged that the death might have taken place

at any time much prior to 4.30 a.m. when her dead body was found by
appellant and Rashmi. Reliance is placed on the fact that Dr. Jain has
found rigor mortis was well marked all over the body and the abdomen
was found to be empty.
45.  Learned counsel for appellant has, by placing reliance on
the observations, in  Medical Jurisprudence, Forensic Medicine and
Toxicolony, submitted that the presence and extent of rigor mortis  puts
the   approximate   time   of   her   death   after   11.30   a.m.   on   30.3.2003.
According to him, therefore, contents of the charge framed against the
appellant  that the offence was committed in the night between 30th and
31st March, 2003 prior to 4.00 a.m. is not giving the correct particulars of
the offence. The death of Prachi might have occurred much prior to the
night of 30th, might may, be in the day time also. As per evidence of P.
W.8 Vilas, a friend of appellant, appellant was with him on that night
from 9.30 p.m. to 10.30 p.m; whereas evidence of the Court witness
No.1 watchman  Uttamkumar Mishra, proves that the appellant has left
the house on that day at 2.30 p.m. itself and he returned home in the next
morning at 4.00 a.m. Thus, as per learned counsel for the appellant, the
presence of appellant in the house at the approximate time of Prachi's
death is not proved to implicate him with charge of her murder. 

46. It is urged by learned counsel for appellant that in a case
based on circumstantial evidence, prosecution has to prove each and
every   circumstance,   by   brining   convincing   and   reliable   evidence   on
record. To substantiate his submission, learned counsel for appellant  has
relied upon the cases of Gambhir ­vs­ State of Maharashtra (1982) 2
SCC   351,  and    Shankarlal   Gyarasilal   Dixit   ­vs­   State   of
Maharashtra,   (1981)   2   SCC   35,    which   lay   down   the     guiding
principles   for   appreciation   of   evidence   when   the   case   rests   on
circumstantial evidence. The tests laid down are to the effect that  (i) the
circumstances from which inference of guilt is sought to be drawn must
be cogently and firmly established; (ii) those circumstances should be of
a definite tendency and unerringly pointing towards guilt of the accused;
(iii)   the   circumstances,   taken   cumulatively,   should   form   a   chain   so
complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and none
else. 
47.  As per   learned   counsel for appellant, here circumstances
established by prosecution are not such, so as to exclude the possibility
of any other person committing the murder. In his written statement

under Section 313 of Code of Criminal Procedure, the appellant has
urged possibility of some intruder coming to the house in his absence
and Prachi hiding herself in the cabinet out of fear of injuries from that
person. He has stated that, such person might have come to their flat to
commit certain theft or for some other reason. However, to say the least,
in our opinion this possibility is totally ruled out from the evidence of
Prachi's parents, who have deposed that after the incident on 7th  April,
when they visited the flat of Prachi and appellant, they found that none
of the articles in the flat, including gold ornaments was missing or stolen
therefrom.  Therefore, the possibility of some third person entering into
the house with the intention of committing theft is totally ruled out. 
48.  Secondly, if at all any intruder has entered into flat, Prachi
would  have   raised   hue   and  cry,   called  watchman   or  tried  to   escape
herself   from   the   flat,   instead   of   confining   herself   in   the   cabinet.
Moreover, in that case she would not have antemortem injuries on her
person like attempted  throttling. Thus, this defence is so farfetched that
it hardly deserves any merit.
49. Indisputably the incident had taken place in the house where
the appellant and Prachi were cohabiting together. The spot panchnama
Exh.46, proved through the evidence of P.W.7 panch Ashok, reveals that

the blood stains were seen on the curtain, on the floor, wall and also on
the  cover of keyboard of computer. Hair were also seen on the floor. All
these articles including cigarette butt were seized  by the police  under
panchnama. The flower­pot with dents thereon was also seized under
panchnama. Therefore, when the incident has taken place very much in
the house where the appellant and Prachi were residing together and
nothing is brought on record to show that during this span of 12 to 24
hours   in   which   Prachi's   death   might   have   occurred,   there   was   no
possibility of the appellant not being in the house, the onus naturally was
shifted on the appellant to explain the circumstances under which her
homicidal death has occurred; especially in the light of the fact that when
her dead body was found, he was very much present there and in the
light of  his conduct, as deposed by Rashmi and her parents that he was
confirmed   that   Prachi   was   already   dead.     On   phone   itself,   he   has
informed   her   parents   that   Prachi   was   no   more   and   she   was   dead.
Thereafter even  when  Rashmi  urged  appellant  that  Prachi  should  be
taken to the Doctor, the reluctance on the part of the appellant to do so
makes it very clear that he was aware and certain about her death. If it is
so, then it was for him to explain the circumstances in which her death
has occurred.

50.  The   plea   taken   by   him   of   Prachi   committing   suicide   is
proved to be false.   The another plea taken by him that some intruder
might have entered into the house is also falsified.  Therefore, as held in
Rajkumar Prasad Tamarkar ­vs­ State of Bihar and anr (2007) SCC
(Cri) 716  and  Dnyaneshwar ­vs­ State of Maharashtra, (2007) 10
SCC 445,  relied upon by learned counsel for Revision Petitioner, an
irresistible inference has to be drawn about the involvement of   the
appellant husband in the cause of her death. He cannot escape from the
liability.   As   held   in  Trimukh   Maroti   Krkan   ­vs­   State   of
Maharashtra (2007) 10 SCC  681, “where accused is alleged to have
committed murder of his wife and the prosecution succeeds in leading
evidence to show that shortly before commission of crime they were
seen together or the offence takes place in dwelling home where the
husband   also   normally   resides,   it   has   been   consistently   held   that   if
accused does not offer any explanation, how wife received injuries or
offers explanation which is found to be false,  it is strong circumstance
which indicate that he  is responsible for commission of the crime”. Here
in the case, having regard to the entire facts and circumstances and
evidence on record, no other hypothesis except that of the guilt of the

appellant can be drawn.  The circumstances are consistent only with his
guilt and inconsistent with his innocence.
51. The last plea raised by learned counsel for the appellant is
about alleged error in framing of charge by the trial Court. It is submitted
that in the charge, time of the offence is mentioned as, “In the night
between 30th  and 31st March, 2003 prior to 4.00 a.m.”. According to
learned   counsel   for   appellant,   the   evidence   on   record   does     not
necessarily prove that incident has taken place in the night and therefore,
this error in framing of charge has resulted in violation of justice.
52.  Learned counsel for appellant in this respect relied on Main
Pal ­vs­ State of Haryana (2010) 10 SCC 130.   However, the facts of
this authority clearly prove that the appellant was charged with offence
of trespassing  the house of “P” with intent to assault “P” and for having
assaulted   her   by     outraging   her   modesty.   However,   appellant   was
convicted for outraging modesty of “S”, who was also present at the time
of   alleged   incident.   In   the   said   fact   situation,   it   was   held   that   the
appellant was misled by error in charge which caused prejudice  to him,
thereby resulting in failure of justice. 
53.  Here in the case the charge nowhere specify the exact time.
It merely says prior to 4.00 a.m. of 31st March. Even if the words, “night

in  between  30th  and  31st  March”   are  there   in  the   charge,    the  cross
examination conducted on behalf of appellant and the evidence adduced
in   the   case   including   written   statement   filed   by   the   appellant   under
Section 313 of Code of Criminal Procedure, nowhere shows that he has
been in any way misled by the said words in the charge or it has caused
prejudice to the appellant. He was fully aware of what prosecution case
is against him and has led evidence accordingly. In the above referred
authority also, it was held that “there will be no prejudice or failure of
justice, where there was any error in the charge and accused was aware
of the error. Such knowledge can be inferred from the defence of the
accused and if defence of accused showed that he was defending himself
against real and actual charge and not erroneous charge, it will not result
into causing any prejudice to him”. It was further held that, “In  judging
the question of prejudice, as of guilt, the courts must act with a broad
vision and look to the substance and not to the technicalities.  The Court
has to see whether accused   knew for what he was being tried for,
whether the main facts sought to be established against accused were
explained to him and whether he was given full and fair chance to defend
himself”. All these conditions are clearly satisfied in the instant case and
therefore, this last leg of argument advanced by learned counsel for

appellant  also fails.
54. The net result of our discussion is that the prosecution has
succeeded in proving its case against the appellant beyond reasonable
doubt. The trial Court, has therefore, rightly convicted and sentenced
him, for the offence under Section 302 and 201 of the Indian Penal Code.
As to the acquittal of the appellant, for the offence punishable under
Section 498A of IPC, by the trial Court, we find that said acquittal needs
to be altered into conviction as the finding recorded by the trial Court to
that effect falls in the category of “perverse”.
55.  Learned   counsel   for   the   original   complainant   in   the
Revision also made a prayer to the effect that the life imprisonment
awarded by trial Court be converted into death penalty.     We are not
inclined to grant the said prayer because the facts  of this case do not fall
in the category of “rarest or rare” and in the parameters laid down by the
Apex Court from time to time.  
56.  Consequently, appeal stands dismissed.
57.  The Criminal Revision Application filed by complainant is
allowed partly to the extent of quashing   and setting aside appellant's
acquittal for the offence punishable under Section 498A of the Indian
Penal   Code.     The   appellant   is   convicted   for   the   said   offence   and

sentenced to suffer rigorous imprisonment for three years and to pay fine
of Rs.10,000/­ in default to rigorous imprisonment for six months.  The
substantive sentences for all the offences to run concurrently.  
58.  The bail bonds of the appellant stand cancelled and   the
appellant is directed to surrender before the trial Court  within 10 weeks
from today, failing which the trial Court to take appropriate steps to have
him arrested to serve the sentence. 
                                  [ACTING CHIEF JUSTICE.]
                                  [DR. SHALINI PHANSALKAR­JOSHI, J.]
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