is quite serious and which, if proved, would require consideration from
this Court for evaluating its impact on the conduct of the complainant.
This allegation is about bringing a second wife to his house by respondent
No.1. I must say it here that it is not every type of misconduct that has
been made punishable under section 498A of I.P.C. Cruelty has been
defined in section 498A to mean any willful conduct 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 physical or mental health of the woman or
harassment of the woman made with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable
security. So, it is clear that only those acts committed willfully and which
are in the nature of degrading treatment which qualify to be termed as
cruelty in law. In other words, cruelty is a conduct designed to produce
definite result in relation to physical or mental condition of a woman. In
order that the conduct is called willful, it must have been such as could be
said to be indulged in by the accused with an intention to cause or with
the knowledge that it is likely to cause degrading or humiliating or
injurious effect on the mind or conduct of the woman. It involves acts the
result of which causes hurt and oftentimes agony to the opposite party, be
it mental or physical, which in turn has further damaging consequences,
the most serious of which is an ultimate suicide, as held in the case of
Madhuri Mukund Chitnis v. Mukund Martand Chitnis, 1992 CRI.L.J.
111. Thus, the condemned act called cruelty must be accompanied by
mens rea. Having said so, it has to be seen whether the allegation that
the accused No.1 had brought one stranger lady to his house at Pune and
announced not only to the complainant but also to her father and uncle
that the stranger was his second wife was reasonably established or not.
Even if this allegation is proved, the matter would not end there, as it
cannot be presumed in every case that such conduct of husband would
create such an adverse impact on the mind of the wife as is sufficient to
drive her to commit suicide or cause grave injury to herself and hence a
willful conduct. There are instances where a second wife has been
accepted by first wife willingly or unwillingly but surely without losing
balance of mind by causing any injury to herself. So all depends on the
facts and circumstances of each case. The evidence as regards the said
allegation, therefore, needs to be assessed in the light of the law so
discussed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 571 OF 2001
State of Maharashtra. V/s. Sanjiv Bhimrao Kamble.
CORAM : S.B. SHUKRE, J.
DATED : 28th October 2015.
Citation: 2016 ALLMR(CRI)2058
By this appeal the State has challenged the legality and
correctness of the judgment and order dated 24th April 2001 passed in
R.C.C.No.23/1995 by Judicial Magistrate, First Class, Pimpri whereby the
respondents have been acquitted of the offence of cruelty punishable
under section 498A read with section 34 of Indian Penal Code (I.P.C.)
2. The respondent No.1 is the husband of the complainantSadhana
Sanjiv Kambale. Respondent Nos.2 and 4 are the sisters of
respondent No.1 and respondent Nos.3 and 5 are respectfully the
husbands of respondent Nos.2 and 4. By a complaint lodged on 11th July
1994, the complainant Sadhana alleged that respondent No.1 being her
husband and respondent Nos.2 to 5 being her inlaws subjected her to ill
treatment and cruelty on account of her failure to bring some amount of
money. Investigation was made and when it was found that there was
sufficient evidence available to proceed against the respondents, the Police
filed a chargesheet against all the respondents. The charge for an
offence punishable under section 498A read with section 34 of I.P.C. was
framed against the respondents to which they pleaded not guilty and
claimed to be tried. On merits of the case, learned Magistrate found that
the evidence adduced by the prosecution was insufficient to prove the
charge of cruelty against the respondents and, accordingly, by his
judgment and order dated 24th April 2001 the learned Magistrate
acquitted all the respondents of the charge of cruelty. Being not satisfied
with the same, the State is before this Court in the present appeal.
3. I have heard learned A.P.P. for the appellant State and
Mr.Desai, learned counsel for the respondents. Respondent No.1 accused
No.1 is also personally present in the Court in compliance with the
directions issued by this Court. I have gone through the record of the
case.
4. According to learned A.P.P., this is a fit case for interference
with the impugned judgment and order as there is improper appreciation
of evidence, which submission is opposed by learned counsel for the
respondents.
5. On going through the record of the case including the
judgment and order impugned in the present appeal, I find that there is no
merit in the argument of learned A.P.P. as the inference drawn by the
learned Magistrate in the present case is based upon appreciation of
evidence available on record and is the result of a view which could be
said to be plausible, and not impossible.
6. The record shows that there are four prosecution witnesses,
who are material, and careful scrutiny of evidence of these witnesses
would show that they have not come out with any consistent stand as
regards the illtreatment and cruelty allegedly meted out by the
respondents to the complainant. While the complainant Sadhana (PW1)
says that she was harassed by the respondents and was compelled to
withdraw an amount of Rs.13,000/ from Bank of Karad, the other
witnesses i.e. Vishnu Waghmare (PW2) father of the complainant and
Suhas Waghmare (PW4) brother of the complainant state that the
complainant withdrew an amount of Rs.15,000/ under compulsion not
from any bank but from the society. Madhukar Waghmare (PW3) uncle
of the complainant also states the same thing as said by father and
brother of the complainant. No explanation is forthcoming from the
prosecution side as regards inconsistency between the evidence of PW1
on one hand and evidence of the other witnesses i.e. PW2, PW3, PW4 on
the other in respect of alleged compulsion brought upon the complainant
for withdrawing the amount either from the bank or from the society.
Even otherwise, none of the witnesses have stated before the Court that
earlier there was any demand of money made by the accused from the
complainant and as it was not fulfilled by her she was harassed so much
that, ultimately, out of desperation or to save herself from further
harassment that she decided to withdraw sum of Rs.13,000/ or
Rs.15,000/ from the bank or the society. A person can be said to be
compelled to do something only when situation of a desperation by some
overt acts is created by the accused persons. In the instant case, no such
evidence regarding some acts of commission or omission, which ultimately
led to bring so much pressure upon the complainant that it resulted into a
feeling on her part that there was no other option left for her than to
withdraw the money from the bank or the society, has been adduced by
the prosecution. Therefore, it could not be said that the prosecution has
proved its case of handing out of cruelty to the complainant on the count
of demand of money as contemplated under section 498A of I.P.C.
7. There is one more allegation which, according to prosecution,
is quite serious and which, if proved, would require consideration from
this Court for evaluating its impact on the conduct of the complainant.
This allegation is about bringing a second wife to his house by respondent
No.1. I must say it here that it is not every type of misconduct that has
been made punishable under section 498A of I.P.C. Cruelty has been
defined in section 498A to mean any willful conduct 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 physical or mental health of the woman or
harassment of the woman made with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable
security. So, it is clear that only those acts committed willfully and which
are in the nature of degrading treatment which qualify to be termed as
cruelty in law. In other words, cruelty is a conduct designed to produce
definite result in relation to physical or mental condition of a woman. In
order that the conduct is called willful, it must have been such as could be
said to be indulged in by the accused with an intention to cause or with
the knowledge that it is likely to cause degrading or humiliating or
injurious effect on the mind or conduct of the woman. It involves acts the
result of which causes hurt and oftentimes agony to the opposite party, be
it mental or physical, which in turn has further damaging consequences,
the most serious of which is an ultimate suicide, as held in the case of
Madhuri Mukund Chitnis v. Mukund Martand Chitnis, 1992 CRI.L.J.
111. Thus, the condemned act called cruelty must be accompanied by
mens rea. Having said so, it has to be seen whether the allegation that
the accused No.1 had brought one stranger lady to his house at Pune and
announced not only to the complainant but also to her father and uncle
that the stranger was his second wife was reasonably established or not.
Even if this allegation is proved, the matter would not end there, as it
cannot be presumed in every case that such conduct of husband would
create such an adverse impact on the mind of the wife as is sufficient to
drive her to commit suicide or cause grave injury to herself and hence a
willful conduct. There are instances where a second wife has been
accepted by first wife willingly or unwillingly but surely without losing
balance of mind by causing any injury to herself. So all depends on the
facts and circumstances of each case. The evidence as regards the said
allegation, therefore, needs to be assessed in the light of the law so
discussed.
8. Upon considering the evidence of PW1 Sadhana as well as
her father Vishnu (PW2) and uncle Madhukar (PW3), I am of the view
that the allegation of second wife has not been proved beyond reasonable
doubt by the prosecution. If the allegation has not been proved, hunger
for knowing what the allegation did to mental equilibrium of the
complainant would not be ignited. Reasons for such conclusion could be
seen in foregoing paragraphs.
9. According to PW1 Sadhana, on 26th June 1994, after making
an announcement to her that the stranger was his second wife the
respondent No.1 had told her to leave his house or he would finish her.
In her evidence, PW1 Sadhana does not say anything about command of
respondent No.1 regarding leaving of the house. PW2 Vishnu says that
respondent No.1 had asked him and his brother Madhukar (PW3) to take
back along with them PW1 Sadhana but without taking her, both of them
went back to their respective places. PW3 Madhukar also says that even
though respondent No.1 had asked him to take along with him PW1
Sadhana, he returned from the house of respondent No.1 without taking
Sadhana with him. In the FIR vide Exh.44, however, the complainant
PW1 Sadhana has alleged that on 26th June 1994 she was forcibly driven
out of house by the respondents and at that time all of them had hurled
abuses at her. This would mean that there is a material variance between
the version of the complainant, her father and her uncle before the Court
and version of the complainant before the Police when she lodged the
complaint at the Police Station on 11th July 1994. No explanation has
been provided in the prosecution case to enable the Court to ascertain as
to which of them is correct. Therefore, a serious doubt has arisen about
the trustworthiness of these important witnesses as regards their evidence
on the events of 26th June 1994 and some corroboration from other or
independent witnesses was necessary so as to clear the cloud of doubt on
their reliability. However, there is no corroboration provided by any other
witness in this regard.
10. The doubt about the trustworthiness of the prosecution
witnesses has been further deepened by the fact that there was inordinate
delay in lodging of FIR. From the evidence of the complainant as well as
her relatives and what has been alleged in the FIR, it appears that the
incident of 26th June 1994 proved to be a proverbial final nail in the coffin
marking a virtual snapping of matrimonial relations between the
complainant Sadhana and her husband Sanjiv Kamble. After this
incident, there was nothing which could have been done or even avoided
to be done by the complainant so as to keep her marriage with
respondent No.1 alive. So, it would have been her natural reaction, if she
had immediately lodged a police complaint against the respondents. But,
it is seen that even an attempt was not made to file any FIR against the
husband or inlaws or all of them in the evening of 26th June 1994 or
within a reasonable period of time thereafter. There was a delay of about
15 days in lodging of the FIR. The delay has not been explained at all.
The circumstances brought on record by the prosecution also do not
explain the delay. In the background of what has been discussed above,
especially the evidentiary worth of material prosecution witnesses and
absence of any independent or other corroboration, the delay in lodging of
FIR has become fatal to the prosecution case. It appears that the entire
story made up in the FIR was product of an afterthought on the part of the
complainant and her father as well as uncle who were admittedly in the
profession of advocacy at the relevant time.
11. With such evidence available on record, as stated earlier, the
view taken by the learned Magistrate cannot be said to be an impossible
view. I agree with him when he finds that the prosecution has failed to
prove beyond reasonable doubt the charge framed against the respondents
under section 498A of I.P.C. There is no scope for making any
interference in the impugned judgment and order. The appeal deserves to
be dismissed.
12. The appeal stands dismissed.
(S.B. SHUKRE, J.)
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