High Court of Bombay

Dinkar Vs. The State of Maharashtra

MANU/MH/0126/2018

25.01.2018

Criminal

Benefit of any alternate hypothesis which is reasonably discernible from record must necessarily be given to the accused

The Appellant seeks to assail the judgment rendered by the learned Ad-hoc Additional Sessions Judge, by and under which, the Appellant is convicted for offence punishable under Section 498-A of the Indian Penal Code, 1860 ('IPC') and is sentenced to suffer rigorous imprisonment for one year 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 five years and to payment of fine of Rs. 1500. The Appellant faced trial along with his mother, who is acquitted and his father who is convicted and sentenced to suffer imprisonment till rising of the Court.

The possibility of accidental death could not have been brushed aside by the learned Sessions Judge in a perfunctory manner. The prosecution failed to establish that, the death was the suicidal and not accidental. It is trite law that, the benefit of any alternate hypothesis which is reasonably discernible from record must necessarily be given to the accused.

The cruelty which is envisaged under Section 498-A of IPC may not be cruelty contemplated by other statutory provisions. Conduct which may constitute matrimonial cruelty or offence may not necessarily constitute cruelty within the meaning of explanation (a) or (b) of Section 498-A of IPC. Explanation (b) is concededly not attracted since it is not even the case of the prosecution that, deceased was subjected to ill-treatment or harassment in order to coerce her or her family to fulfill any illegal demand. In order to demonstrate that the conduct of the accused constitute cruelty within the meaning of explanation (a) the prosecution was obligated to prove (i) the conduct was willful (ii) the wilful conduct was of such a nature as was likely to drive deceased to commit suicide or (iii) the wilful conduct was of such a nature as is likely to cause grave injury or danger to life, limb or health (whether mental or physical) of deceased.

In order to prove cruelty, the prosecution has examined P.W.1 who is the informant and the brother of the deceased, P.W.3, the mother of the deceased and P.W.4 the cousin brother of the deceased. The evidence of the prosecution witnesses is absolutely vague and bereft of particulars. Neither P.W.1 nor P.W.3 nor P.W.4 have disclosed the month or the year in which the accused transferred two acres land to the deceased. The prosecution witnesses have not disclosed as to in which month or even year was the deceased subjected to cruelty. The evidence of the prosecution witnesses is sketchy and other than use of stereotyped expression like ill-treatment, torture and harassment no specific instance of cruelty or the nature and extent of cruelty is spoken by any of the prosecution witnesses.

The time line of the events and instances is not forthcoming from the prosecution. When was the land was transferred is left to imagination. When was the deceased subjected to cruelty is again in the realm of conjectures and surmises and in order to ascertain the nature and extent of the ill-treatment or harassment, all that is available on record are vague statements bereft of details that the deceased was harassed and ill-treated. In the teeth of evidence on record, the judgment and order impugned is manifestly erroneous. The judgment and order impugned is set aside. The accused are acquitted of offence punishable under Section 498-A, 306 read with Section 34 of IPC. The appeal is allowed.

Tags : Conviction Evidence Credibility

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