Indian Penal Code, 1860 –¬†Section 498A – Cruelty – The statutorily defined cruelty must be of a graver nature and extent than the cruelty which is sufficient to be proved to obtain relief under the matrimonial law. The cruelty must be proved by unimpeachable evidence. Vague and general allegations of demand and illtreatment, bereft of particulars do not constitute proof of cruelty. Ordinarily, the conduct must be persistent and continuous. The proximity test is also of relevance. An aberration or stale incident cannot be pressed into service by the prosecution to prove cruelty. Demand per se is not sufficient to constitute cruelty unless the demand is accompanied by illtreatment or harassment.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

CORAM: ROHIT B. DEO, J.

09.02.2018

CRIMINAL APPEAL NO.411 OF 2004

Ashok s/o Haribhau Moon, Aged 34 years, Occ: Labourer, R/o Mandao, Tahsil Hingna, District Nagpur. ……. APPELLANT

…V E R S U S…¬†

State of Maharashtra through P.S.O. Police Station Selu, District Wardha. ……. RESPONDENT

Shri C.R. Thakur, Advocate for Appellant. Shri P.S. Tembhare, APP for RespondentState.

J U D G M E N T

1] The appellant is aggrieved by the judgment and order dated 28.05.2004 passed by the 3rd Adhoc Additional Sessions Judge, Wardha in Sessions Trial 78/2003, by and under which, the appellant is convicted for offence punishable under Section 498A 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.500/and is further convicted for offence punishable under Section 306 of the IPC and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.1000/. The appellant is however, acquitted of offence punishable under Section 304B of the IPC.

2] Heard Shri C.R. Thakur, the learned counsel for the appellant and Shri P.S. Tembhare, the learned Additional Public Prosecutor for the respondentState.

3] The prosecution case, as is unfolded during the trial, is thus: The marriage of deceased Sau. Sulekha and the accused was solemnized in April, 2001. However, Sulekha was compelled to leave the matrimonial home and to return to her parental home within 2 to 3 months of the marriage in view of the cruelty to which she was subjected by the accused. Concededly, Sulekha hanged herself at her parental house on 04.04.2003. An oral report Exh.27 was lodged by P.W.1 Udhav Laxman Kolhe on 04.04.2003 stating that the accused subjected Sulekha to cruelty to coerce her to fulfill an unlawful demand of Rs.50,000/, that Sulekha was physically assaulted by the accused who was habituated to consume liquor, that the accused visited the parental house of Sulekha 3 to 4 times and illtreated her under the influence of liquor during the said visits and that Sulekha disclosed to P.W.1 and his wife Asha Udhav Kolhe P.W.2 that the accused had illicit relationship with his sisterinlaw which he was refusing to end. On the basis of the said report, offence punishable under Section 498A and 304B of the IPC and Section 3 and 4 of Dowry Prohibition Act was registered at the Police Station Selu, District Wardha against the accused.

4] The prosecution essentially and substantially relied on the evidence of the father and mother of the deceased Sulekha, Udhav Laxman Kolhe and Asha Udhav Kolhe who are examined as P.W.1 and P.W.2 respectively and a suicide note Exh.53, to which I shall refer to some in detail, at a later stage in the judgment.

5] P.W.1 Udhav Kolhe has deposed that the deceased Sulekha cohabited with the accused at the matrimonial home for hardly 2 to 3 months. The accused was demanding an amount of Rs.50,000/and threatened Sulekha that should the amount not be given he would seek divorce. The accused, under the influence of liquor was physically assaulting Sulekha. Sulekha told P.W.1 that she was beaten to coerce her to fulfill the unlawful demand for money, is the deposition. P.W.1 further deposes that the accused used to visit his house to demand money and the accused assaulted Sulekha in the presence of P.W.1. The accused used to threaten Sulekha of seeking divorce, should the money not be paid, is the deposition. Prior to 2 to 3 months of the incident the accused had visited the house and agricultural field of P.W.1, is the deposition. P.W.1 has proved the report Exh.27. In the crossexamination, the statement that prior to 2 to 3 months of the incident the accused visited the agricultural field of P.W.1 is brought on record as an omission. P.W.1 denies the suggestion that Sulekha was insisting for divorce from the accused and that she was not willing to cohabit with the accused. P.W.1 further denies the suggestion that there was a quarrel between P.W.1 and Sulekha on the issue of she not being willing to cohabit with the accused.