1 criapl-36.01
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 36 OF 2001
01. Limbraj s/i Vishnu Dhakane,
age 41 years, occup. Agriculture,
r/o Sarul, Tq. Kaij, District Beed.
02. Bysakhu w/o Vishnu Dhakne,
age 66 years, occupation : Agril.
r/of Sarul, Tq. Kaij, District Beed.
03. Vishnu s/o Baburao Dhakne,
age 71 years, occup. agriculture,
r/of Sarul, Tq. and District Beed.
04. Youvraj s/o Vishnu Dhakne,
age 36 years, occup. agriculture,
r/o Sarul, Tq. Kaij, District Beed.
05. Dhanraj s/o Vishnu Dhakne,
age 20 years, occup. agriculture, Appellants/
r/o Sarul, Tq. Kaij, District Beed. orig. accused.
versus
The State of Maharashtra,
through Police Station Officer, Respondent/
Police Station, Kaij, Dist.Beed. orig. complainant
-------
Shri S.P. Katneshwarkar, Advocate, for appellants.
Shri V.G. Shelke, A.P.P. for the Respondent-State.
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Coram : Shrihari P. Davare, J.
Judgment reserved on : 23.3.2011
Judgment pronounced on: 06.4.2011
Judgment (Per : Shrihari P. Davare, J.)
01. Heard learned counsel for the parties.
02. This is an appeal, preferred by original accused Nos. 1 to 5,
challenging the conviction and sentence inflicted upon them, by
way of judgment and order dated 29.12.2000, rendered by learned
II Additional Sessions Judge, Ambajogai, in Sessions Case No.59 of
1999, thereby convicting them for offence punishable under Section
498-A, read with Section 34, of the Indian Penal Code, and
sentencing them to suffer rigorous imprisonment for one year, each
and to pay fine of Rs.500/-, each, in default, to undergo further
rigorous imprisonment for three months, each, and also convicting
them for offence under Section 306, read with Section 34, of IPC,
and sentencing them to suffer rigorous imprisonment for three
years, each and to pay fine of Rs.1000/- each, in default to suffer
further rigorous imprisonment for six months, and also directing
the aforesaid substantive sentences to run concurrently.
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03. Briefly stated, the facts of the case, which gave rise to the
present appeal, are that the victim Chandrabhagabai, who was the
daughter of PW-11 Maroti Kisan Choure, resident of village Jivachi
Wadi, married to accused No.1, namely, Limbraj, resident of village
Sarul, Taluka Kaij, District Beed, about 8 to 9 years back, and
accused Nos. 2 Bysakhu and accused No. 3 Vishnu are her mother-
in-law and father-in-law respectively, whereas accused No.4 Youvraj
and accused No.5 Dhanraj are her brothers-in-law, who all were
residing jointly. Out of the wedlock of Chandrabhagabai with
accused No.1 Limbraj, two sons and one daughter were begotten.
04. It is alleged that the victim Chandrabahagabai was found to
have consumed some poisonous substance and lying in unconscious
condition in front of the cattle-shed of the accused at his field, on
26.2.1999, which was noticed by PW-10 Shrimant Dhakne, firstly,
and hence, he called her and tried to make her sit, but she did not
respond, and vomited. He smelled poison from her mouth, and
therefore, he informed one Nilkanth and thereafter, she was taken
to Primary Health Centre, Neknoor, firstly, in the bullock-cart, and
thereafter to Civil Hospital, Beed, where she was declared dead.
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Thereafter, inquest panchanama of the dead body was conducted in
the Civil Hospital, Beed. Moreover, PW-6 Dr. Kailash Hiraman
Dudhal conducted post mortem on the dead body of
Chandrabhagabai, on 26.2.1999, whereafter her dead body was
brought to village Sarul. Accordingly, A.D. No.16 of 1999 was
registered with Police Station, Kaij, and then CR No.48 of 1999
was registered, on 1.3.1999 for offences punishable under Sections
498-A and 306 read with Section 34 of the IPC, by Police Head
Constable Shri Dnyaneshwar Tukaram Pawar (PW-5). Head
Constable H.Y. Munjal was assigned enquiry of the said A.D. case,
and accordingly, he visited the spot of the incident in front of the
cattle shed belonging to accused No.3 Vishnu and collected samples
of soil of vomit and plain soil from the said spot and drew spot
panchanama dated 27.2.1999 (Exh.19) in presence of Suryabhan
Laxman Dhakne (PW-1) and one Babasaheb Dadarao Jadhav.
05. It is also the case of the prosecution that on 28.2.1999, Police
Head Constable Babu Sidram Mhaske (PW-12) was the in charge
of police out post, Nandurghat and on that day, at about 5.00 p.m.,
Suryakant Maroti Chaure (PW-8), the brother of the victim, lodged
complaint, which was recorded by PW-12 Babu Mhaske, as per
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narration of Suryakant.. Thereafter, PW-12 Babu Mhaske
prepared occurrence report, which is produced at Exh. 26, and
investigation papers were handed over to him. Accordingly, on
1.3.1999, he recorded statements of witnesses, namely, Janabai
Maroti Chaure (mother of the victim Chandrabhagabai), Maroti
Kishan Chaure (PW-11 and father of the victim), Ramchandra
Maroti Chaure (PW-4) and Chanderrao Dnyanoba Dhakne (PW-9).
On 2.3.1999, he recorded statements of the witnesses, namely,
Gorakh Yedba Chaure (PW-7), who is cousin of the victim,
Ambadas, Sajjanbai (PW-2), Nilkanth, and Shrimant Dhakne
(PW-10) and others. Earlier, on 27.2.1999, he had recorded
statement of PW-10 Shankar Dhakne, in connection with A.D. case
No.16 of 1999, as aforesaid. Moreover, PW-12 Babu Mhaske also
arrested the accused persons on 1.3.1999.
06. During the course of investigation, the sample of vomit soil
and plain soil were sent to the Chemical Analyzer for analysis, vide
forwarding letter dated 20.8.1999, which is produced at Exh. 41.
Moreover, one letter was issued to the Civil Surgeon, Beed, on
19.4.1999, requesting him to hand over the viscera to Police
Constable Bk. No.180 who was deputed for the said purpose, for
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being forwarded to the Forensic Science Laboratory, Aurangabad,
and the copy of the said letter is produced at Exhibit 42. It is
alleged by the complainant Suryakant Chaure (PW-8) that the
accused persons subjected the deceased Chandrabhagabai to cruelty
to meet their unlawful demand of money and she was tortured and
thereby they abetted Chandrabhagabai to commit suicide.
07. After receipt of post mortem report and the advanced
certificate of cause of death, and on completion of investigation,
charge-sheet was filed before the learned Judicial Magistrate, First
Class, Kaij, on 13.4.1999, and thereafter the said case was
committed to the Court of Sessions, Ambajogai, by the learned
J.M.F.C., Kaij, on 21.6.1999. Accordingly, charge was framed
againstaccused persons (Exh.10-C), on 18.8.2000 and their pleas
were recorded, and they pleaded not guilty to the charges levelled
against them and claimed to be tried. The defence of the accused is
of total denial and they stated that they have been implicated in
present case, falsely, and accordingly, they claimed to be innocent.
08. To substantiate its case, inasmuch as 12 witnesses have been
examined by the prosecution, as mentioned below.
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PW-1 Suryabhan Laxman Dhakne Panch to spot panchanama
(Ex.19),regarding collection
of soil samples. He turned
hostile.
PW-2 Sajjanbai Ramchandra Chaure Sister of the victim.
PW-3 Kesharbai Ambadas Kendre Sister of the victim.
PW-4 Ramchandra Maroti Chaure Brother of the victim.
PW-5 Dnyaneshwar Tukaram Pawar Police Head Constable, who
registered offence against
ig the accused persons.
PW-6 Dr.Kailash Hiraman Dudhal Medical Officer,who carried
pm on the deceased.
PW-7 Gorakh Yedba Chaure Cousin of the victim.
PW-8 Suryakant Maroti Chaure Complainant and brother
of the victim.
PW-9 Chanderrao Dnyanoba Dhakne Cousin of the victim.
PW-10 Shrimant Shankar Dhakne He noticed the victim lying
in the field, in unconscious
condition, firstly.
PW-11 Maroti Kishan Choure Father of the victim.
PW-12 Babu Sidram Mhaske Police Head Constable and
Investigating Officer.
09. On the background of aforesaid oral evidence led by the
prosecution, accused neither examined themselves on oath, nor
examined any witness in defence. Accordingly, after assessing and
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analyzing oral and documentary evidence, and considering the
submissions advanced by the learned counsel for the parties, the
learned Sessions Judge, Ambajogai, convicted and sentenced the
accused persons, as mentioned hereinabove, by the impugned
judgment and order dated 29.12.2000. Being aggrieved and
dissatisfied by the said judgment and order of conviction and
sentence, original accused have preferred present appeal, and
prayed for quashment thereof.
10. Before adverting to the submissions advanced by the learned
counsel for the parties, it is necessary to scrutinize and analyzing
the evidence adduced and produced by the parties, and in the said
context, coming to the deposition of PW-8 Suryakant Chaure, who
is the complainant and brother of the victim, he stated that he,
along with his parents and brother Ramchandra reside together
and Kesharbai and deceased Chandrabhagabai are her sisters. He
stated that Chandrabhagabai married with accused No.1. Limbraj
about nine years prior to the incident and she gave birth to two
sons and one daughter out of the wedlock with accused No.1. He
further stated that since her marriage, deceased Chandrabhagabaii
was illtreated and even food was not provided to her and she used
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to be assaulted, and also compelled to do work in the field only. He
further stated that her husband i.e. accused No.1, as well as
parents-in-law and brothers in law, i.e. accused Nos. 2 to 5,
illtreated her, and she had disclosed the same to her parents when
she had visited to her parental house, at the time of festivals. He
stated that he himself, his parents, and his brother used to go to
matrimonial home of his sister Chandrabhagabai, and request her
in-laws to treat her well, however, ill-treatment to the victim at the
hands of her in-laws, continued. PW-8 Surykanat also stated that
the victim Chandrakalabai disclosed him that her in-laws
demanded Rs.25,000/= to purchase a flour mill, but he had
expressed inability therefor.
11. PW-8 Suryakant further stated that the incident occurred on
26.2.1999, when he was at Bhaurao Co-operative Sugar factory,
Biloli. On 27.2.1999, PW-10 Shrimant Dhakne and PW-7 Gorakh
Choure came to him and informed him about the death of
Chandrabhagabai due to consumption of poisonous substance, and
hence, PW-8 Suryakant, PW-4 Ramchandra and PW-2 Sajjanbai
rushed and collected his father PW-11 Maroti, who was at
Shripatroi Wadi, and then all of them proceeded to village Sarola,
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to see the victim Chandrabhagabai. However, they found that last
rites of Chandrbhagabai were already performed prior to their
arrival. PW-8 Suryakant further stated that his mother was
weeping and asked him whether he had brought the amount of Rs.
25,000/= for which victim was harassed on the previous day and
she committed suicide due to harassment at the hands of her in-
laws to meet the demand of said money, and thereafter, they all
returned back to village Jivachi Wadi. He further stated that on
next day, he went to Police Station, Kaij, and his complaint was
recorded at 4.00 p.m. at Nandurghat police out post, as per his
narration, which is marked as Exh.32.
12. During the course of cross examination, PW-8 stated that the
in-laws of Chandrabhagabai, started giving her ill-treatment after
about 1 to 1-1/2 months after the marriage and she was being ill-
treated on the ground that she was unable to cook the food,
properly. He visited matrimonial home of Chandrabhagabai for
about 8 to 9 times since her marriage until her death, and the ill-
treatment by in-laws was tolerated by her with the hope that they
would improve their behaviour and would treat her, properly. PW-8
Suryakant further stated that the amount of Rs.25,000/= for flour
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mill, was demanded about one year prior to the suicide by
Chandrabhagabai, and he had assured her in-laws that he would
meet their demand of money, after completion of season of
sugarcane. Moreover, the defence of the accused was put to PW-8
Suryakant that the victim Chandrabhagabai was suffering from
kidney disease since about 2-3 years prior to the incident, and she
was also weak and since she could not bear sufferings, she resorted
to end her life, but same was denied by him. As regards flour mill
of in-laws of victim Chandrabhagabai, he stated that he does not
know for how much period it was run, and he was unable to state
the period till when the accused ran the flour mill after marriage
of Chandrabhagabai, and hence, it was suggested to him that there
was no illtreatment or harassment to deceased Chandrabhagabai
with intend to meet the demand of Rs.25,000/= for flour mill, at
any time, but he denied the same. He was suggested that the
death of the victim was not caused on account of ill-treatment or
harassment to her, but he denied the same.
13. Thus, it is evident from the deposition of PW-8 Suryakant
that although the victim Chandrabhagabai was ill-treated since her
marriage for about 8-9 years, and even if the alleged incident of
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suicide by her took place on 26.2.1999, yet there appears to be no
immediate prior incident, having close proximity which could be
said to have led to committal of suicide by her. Moreover, the
alleged demand of Rs. 25,000/= for flour mill by the in-laws of the
victim Chandrabhagabai does not appear to have coerced
Chandrakalabai or her relatives to fulfill the said alleged unlawful
demand. In fact, it appears from the testimony of PW-8 Suryakant
that victim Chandrabhagabai was ill-treated for the reason that
she was not able to cook the food, properly, and it is apparent from
his testimony that the amount of flour mill was demanded about
one year prior to the incident, as stated earlier, and as such, there
is no close proximity in the alleged unlawful demand of money and
the suicide by victim Chandrabhagabai.
14. The defence put up its case to witness Suryakant that
Chandrabhagabai was suffering from kidney disease since 2-3 years
prior to the incident and had become weak and was unable to bear
suffering, and hence, she decided to end her life, by committing
suicide, but same was denied by him.
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15. That takes me to the deposition of PW-9 Chanderrao
Dnyanoba Dhakne, cousin of the victim Chandrabhagabai. He
stated that the marriage of Chandrabhagabai took place about 8 to
9 years prior to the incident, with accused No.1 Limbraj, and two
sons and two daughters were begotten out of the said wedlock. He
further stated that the in-laws of Chandrbhagabai used to beat her
and did not provide food to her, properly and Chandrabhagabai had
disclosed the same to him, and in turn, he disclosed the same to
her parents. He stated that he also persuaded in-laws of
Chandrabhagabai to treat her well, however, they continued to give
ill-treatment to her. He further stated that Chandrabhagabai had
disclosed him about 12 months prior to the incident that she was
harassed to meet the demand of Rs.25,000/= required for purchase
of flour mill, but her parents were unable to meet the said demand,
and hence, she was further harassed by her in laws. He further
stated that on 26.2.1999, he learnt that victim committed suicide
by consuming poison on account of ill-treatment and harassment by
her in-laws.
16. In the cross examination, PW-9 Chanderrao stated that
Chandrabhagabai was ill-treated and harassed for about 2 to 4
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years before the incident, to meet the unlawful demand of money
for flour mill which was run by her in-laws 4 to 5 years prior to the
incident. He further stated that the police did not record his
statement, nor he stated before the police, regarding ill-treatment
and harassment to victim Chandrabhagabai. However,
subsequently, he stated that police had interrogated with him and
he had stated to the police that prior to demise of
Chandrabhagabai, her in laws started ill-treating her for non
fulfillment of demand of Rs.25,000/= required for flour mill, but
same was not mentioned in his statement, amounting to omission.
Hence, suggestion was given to this witness that in-laws of the
victim Chandrabhagabai never illtreated or harassed her on
account of non-fulfillment of demand of Rs.25,000/=, but he denied
the same. He was also suggested that being the relative of victim
Chandrabhagabai, he was deposing falsely, but he denied the same.
17. It is apparent from the evidence of PW-9 Chanderrao Dhakne
that victim Chandrabhagabai was being harassed and ill-treated
for about 4 to 5 years prior to the incident, to meet the alleged
unlawful demand of money for flour mill and she disclosed the
same to him about 12 months back from the incident, which, in
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turn, was informed by him to her parents. Initially, he stated
that the police did not record his statement, but later on he
improved his version and stated that the police had interrogated
with him, but the very version of alleged ill-treatment to
Chandrabhagabai by her in-laws to meet the demand of Rs.25,000/-
for flour mill since 12 months prior to he demise, is under
omission, and hence, same diminishes credibility of his testimony.
18.
Coming to the deposition of PW-11 Maroti Kishan Choure,
father of the victim, who stated that his daughter
Chandrabhagabai married to accused No.1 Limbraj, about 7 to 8
years prior to the incident and she was ill-treated at the hands of
her husband and in laws, on the ground that she was not cooking
the food, properly, and hence, she was subjected to starvation and
also compelled to work in the field. He further stated that
Chandrabhagabai used to tell him about ill-treatment to her,
whenever she visited to his house, on account of festivals. At that
time, he and other relatives, used to persuade her husband and in
laws to treat her well, and accordingly, she used to be treated well
for some period, but again ill-treatment to her, used to be
continued. He stated that the in-laws and brother-in-laws of the
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victim were demanding Rs.25,000/- from him, about one year
prior to the incident, but he was unable to meet the said demand
and her in-laws iltreated her, since then. He also stated that
Chandrabhagabai was fade up with the ill-treatment meted out to
her, and hence, resorted to end her life, by committing suicide.
19. In cross examination, PW-11 Maroti stated that
Chandrabhagabai was harassed for about two years prior to her
death, on the ground that she was unable to cook the food,
properly, and do the domestic work. He further stated that he
used to visit matrimonial house of her daughter Chandrabhagabai
once or twice in a year. He also stated that the accused had a flour
mill which was run by them for two years after the marriage of
Chandrabhagabai, however, thereafter it was not functioning.
20. Pertinently, it is evident from the testimony of PW-11 Maroti,
that his daughter Chandrabhagabai, was ill-treated at the hands
of her husband and in laws, since she was unable to cook the food,
properly. As regards unlawful demand of Rs.25,000/=, he stated
that it was made by parents-in-law and brothers-in-law of
Chandrabhagabai, about one year prior to the incident, for the
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purpose of flour mill. Accordingly, there is no close proximity
between the said demand of money and occurrence of the incident
of alleged suicide by the victim, and there is huge gap of about one
year between the same. Moreover, he stated in the cross
examination that he used to visit matrimonial house of his
daughter once or twice a year, and therefore, it is apparent that he
was not in close contacts, personally; with Chandrabhagabai and
her husband and in-laws, to receive the first hand information
about the alleged treatment to her.
21. Moreover, PW-11 Maroti ambiguously stated that victim
Chandrabhagabai was illtreated by her husband, parents in law
and brothers in law, but he did not give specific name of any of the
accused, attributing any specific role to each of them in the alleged
illtreatment and harassment to his daughter Chandrabhagabai,
and therefore, it is not clear as to which of the accused played
which role in such ill-treatment and harassment on account of
alleged demand of Rs.25,000/= for flour mill.
22. That takes me to the testimony of PW-3 Kesharbai Ambadas
Kendre, sister of the victim Chandrabhagabai, who deposed that
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Chandrabhagabai used to meet her whenever they both used to
visit their parental house at Jivachi Wadi, and she used to
complain about her starvation and subjecting her to do hard work,
such as, removal of cow dunk from the cattle-shed, as well as about
her in-laws offering stale food to her. Kesharbai further stated that
the victim was harassed at the hands of her in-laws, with intend
to meet their unlawful demand of Rs.25,000/= required for flour
mill. Kesharbai further stated that harassment being intolerable,
Chandrabhagabai consumed poison and committed suicide, and she
identified the accused persons before the court.
23. In cross examination, Kesharbai stated that in-laws of
Chandrabhagabai started ill-treating her since birth of the first
child, a female child, and thereafter two male children were born.
She also stated that police had interrogated with her, but then
changed her version, saying that police did not interrogate with
her. Hence, suggestion was given to her that she deposed falsely
that Chandrabhagabai was subjected to cruelty with intent to meet
the demand of Rs.25,000/= for flour mill, but she denied the same.
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24. It appears from the testimony of witness Kesharbai that in-
laws of Chandrabhagabai were ill-treating her, since birth of the
first child, which was a female child, i.e. 2 to 3 years since
marriage, and therefore, a possibility of subjecting her to ill-
treatment by husband and in-laws on that count, cannot be ruled
out. As regards alleged demand of Rs.25,000/= and illtreatement
and harassment to victim Chandrabhagabai, at the hands of her in-
laws, due to non-fulfillment of the same, PW-3 Kesharbai
nowhere stated in her deposition as to which of the accused
harassed deceased Chandrabhagabai and in what manner, and a
bare statement in respect thereof without assigning any specific
role to each of the accused therein, would create suspicion about
the alleged ill-treatment and harassment to the victim, at the
hands of her husband and in-laws.
25. Coming to the deposition of PW-4 Ramchandra Maroti
Choure, brother of the victim Chandrabhagabai, it is seen from his
evidence that Chandrabhagabai had married with accused No.1
Limbraj, about 8 to 9 years prior to the incident and she had two
sons and a daughter out of the said wedlock, but the daughter was
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not alive. He further stated that Chandrabhagabai was residing in
her matrimonial house since marriage, and she used to meet him
whenever she visited his house, on account of festivals. He
further stated that Chandrabhagabai used to complain to him that
she was treated with cruelty and was compelled to do hard work in
the field and also cleaning of cattle-shed and she was being
assaulted and kept starved. He further stated that, he himself
and his parents and brother persuaded the in-laws of
Chandrabhagabai not to ill-treat her, but they did not pay any
heed, and continued to give illtreatment to her. He also stated
that at the time of Diwali, preceding the incident,
Chandrabhagabai repeated to them about the harassment and
insistence by her in-laws to meet the demand of Rs.25,000/=
required for the flour mill. Thereafter, they persuaded her and
assured to meet the demand within one year.
26. During the course of cross examination, the witness has
stated that the ill-treatment at the hands of in-laws of the victim
started three years after the marriage. He also stated that the
accused ran flour mill for about 4 to 5 years after marriage of
Chandrabhagabai. According to him, the said flour mill was not in
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working condition. Pertinently, he stated that the police recorded
his statement, but the very disclosure by Chandrabhagabai about
demand of amount of Rs.25,000/= at the time of Diwali and
assurance by witness and his parents to fulfill the same within one
year, come under the omission.
27. Considering the testimony of PW-4 Ramchandra, it is
apparent that there is vital omission, as mentioned hereinabove
and he has made general statement in respect of alleged
harassment and illtreatment to Chandrabhagabai, at the hands of
her in-laws, and no specific role has been attributed by him to any
of the accused in respect of the alleged illtreatment and
harassment, and therefore, in the absence of the same, liability
upon each of the accused cannot be fixed in respect of their
participation in the alleged ill-treatement and harassment to victim
Chandrabhagabai.
28. That takes me to deposition of PW-10 Shrimant Shankar
Dhakne, who stated that while he was returning back from his
field, he noticed that Chandrabhagabai was lying in front of cattle
shed of accused No.3 Vishnu. He gave call to her, but she did not
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respond and he found that she had vomited due to consumption of
poisonous substance, and hence, she was taken to Sarula and
thereafter she was shifted to Civil Hospital, Beed, where she
breathed last.
29. PW-10 Shrimant was declared hostile, but nothing much
beneficial to the case of the prosecution could be elicited from his
cross examination conducted by the learned A.P.P. On the contrary,
in the cross examination conducted by learned counsel for the
accused, this witness stated that Chandrabhagabai had a kidney
trouble and swelling, and was suffering from illness ccontinuously
for 2-3 years prior to her demise, and the accused used to take her
for medical treatment, regularly. He further stated that
Chandrabhagabai had attempted to commit suicide, about 12
months prior to her death.
30. Accordingly, it is apparent from the testimony of witness
Shirmant that victim Chandrabhagabai was suffering from illness
continuously for 2-3 years due to kidney problem and swelling. It
is also material to note that she had attempted to commit suicide
by consuming poisonous substance, about 12 months prior to her
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death, and hence, there appears to be tendency of committal of
suicide, on the part of the victim Chandrabhagabai.
31. That takes me to testimony of PW-6 Dr. Kailash Hiraman
Dudhal, who was the Medical Officer and who performed post
mortem on the dead body of the victim Chandrabhagabai, on
26.2.1999 between 5.35 p.m. to 6.35 p.m. and stated that no ante
mortem injuries were noticed on the dead body, and there was
kerosene like smell to the stomach contents. In his opinion, the
cause of death was “cardio respiratory failure due to asphyxia,
secondary to insecticide poisoning.”. The witness stated that
viscera was preserved and that the same is still lying in the
mortuary room and is not collected by the concerned police station.
Therefore, according to the witness, no final report of analysis of
C.A. was received. He also stated that even they did not inform or
remind the concerned police station, to collect the viscera. Witness
was unable to assign any reason, why reminder was not issued to
the police station, till date. He further stated that even in the
absence of report of analysis of viscera, his final opinion is that the
cause of death of Chandrabhagabai was “cardio respiratory failure
due to asphyxia, secondary to insecticide poisoning.”. Post mortem
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24 criapl-36.01
notes are marked as Exhibit 29. According to him, cause of death
of the victim was consumption of poisonous insecticide.
32. In the cross examination, PW-6 Dr. Kailash Dudhal stated
that the provisional certificate of cause of death, has been issued to
the investigating agency, prior to collection of the post mortem
report. He further stated that it is correct that even in the
provisional certificate of cause of death, it has been mentioned that
viscera has been preserved, and according to him, it was the duty
of the investigating officer or the concerned police station to collect
it, for sending the same to Chemical Analyzer for analysis purpose.
33. Thus, it is apparent from the testimony of PW-6 Dr. Kailash
Dudhal that he conducted post mortem on the dead body of
Chandrabhagabai, and according to him, cause of her death was
“cardio respiratory failure due to asphyxia, secondary to insecticide
poisoning.”. It is curious to note that although viscera was
preserved, police did not collect and send the same to chemical
analyzer for analysis purpose, which amounts to vital lacuna in the
prosecution case.
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34. On the background of aforesaid evidence, learned counsel for
the appellants canvassed that there is inordinate delay in lodging
the FIR, inasmuch as the alleged incident is said to have taken
place on 26.2.1999, whereas the FIR came to be lodged on 1.3.1999
i.e. three days after the alleged incident, and the prosecution has
not given any plausible and convincing explanation therefor, and
therefore, said delay hampers the prosecution case, and hence,
possibility cannot be ruled out that the FIR was lodged by
complainant PW-8 Suryakant in consultation with the relatives
and after concocting a false story against the accused persons.
35. It is also canvassed by the learned counsel for the appellants-
accused that the witnesses examined by the prosecution are the
close relatives of the victim Chandrabhagabai and the prosecution
has failed to examine independent witnesses in respect of the
alleged cruelty to which the victim was allegedly subjected, and
therefore, the conviction against the accused persons cannot be
based on the testimonies of close relatives of the victim, they being
interested witnesses. According to learned counsel for the
appellants-accused, evidence of PW-8 Suryakant, is hearsay
evidence, since he has no personal knowledge and although mother
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26 criapl-36.01
of the victim, namely, Janabai reached to village Sarula, first in
point of time, and her statement under Section 161 of Code of
Criminal Procedure was recorded, and although complainant
Suryakant was informed by her about the incident, still
prosecution has chosen not to examine her for the reasons best-
known to it. Moreover, it is also submitted that the alleged
demand of Rs. 25,000/= made to Chandrabhagabai, for installation
of flour mill, was about one year prior to the incident and there is
no close proximity between the alleged demand and illtreatment
due to non fulfillment thereof and alleged committal of suicide by
the victim.
36. Moreover, it is further submitted that it is not the
prosecution case that there was any recent/immediate glaring
unlawful demand by the accused persons to the victim prior to the
date of incident, resulting into committal of suicide by the victim on
the date of the incident, and therefore, it is canvassed that there
was no immediate incitement to the victim, leading to committal of
suicide by her.
37. Further, it is also canvassed by the learned counsel for the
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27 criapl-36.01
appellants that about 8 to 9 years had passed from the date of
marriage of the victim Chandrabhagabai with accused No.1, and
even three children were begotten out of the said wedlock, and
considering the said passage of time after the marriage and also
birth of children during that period, it is not conceivable that the
victim was subjected to cruelty of such a nature which drove her to
commit suicide. Moreover, it is also submitted by the learned
counsel for the appellants-accused that even there was not a single
complaint of harassment/illtreatment by the victim or her parental
relatives against the accused persons since her marriage till the
date of incident, and asking to do household work, or work at own
field, cannot be termed as “cruelty”.
38. It is also argued by the learned counsel for the appellants
that although the viscera of the victim was preserved at the time of
post mortem, it is curious to note that the same was not forwarded
to the chemical analyzer’s office for examination purpose, and
therefore, there is no final report in respect of cause of death of the
victim, and the said lacuna sustains fatal blow to the case of the
prosecution. It is canvassed by the learned counsel for the
appellants-accused that the defence taken by them that the victim
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28 criapl-36.01
Chandrabhagabai might have committed suicide due to intolerable
trouble of disease of kidney, cannot be overlooked since the accused
have probabilized the same, as PW-10 Shrimant Dhakne has also
stated about Chandrabhagabai suffering from said disease.
39. Besides, it is further canvassed that the prosecution has
failed to prove and establish the very ingredients of Section 498-A
of IPC, such as,
(i) Willful conduct of the accused driving the victim to
commit suicide, or
(ii) cause grave injury or danger to life, limb or health of
the woman, or
(iii) harassment of the woman with a view to coercing her
or any person related to her to meet any unlawful
demand for any property or valuable security, on
account of failure by her or any person related to her to
meet such demand.
Accordingly, it is submitted that the prosecution has failed to
establish nexus between the alleged cruelty and suicide by the
victim Chandrabhagabai.
40. Moreover, it is also canvassed by the learned counsel for the
appellants that the ingredients of Section 107 of the IPC, in respect
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29 criapl-36.01
of abetment, namely,
(i) instigate any person to commit an offence, or
(ii) engaging in a conspiracy for committing it, or
(iii) intentionally aiding a person to commit it;
are missing in the present case, considering the oral and
documentary evidence adduced and produced by the prosecution.
Hence, learned counsel for the appellants-accused urged that the
prosecution has failed to prove and establish the charges levelled
against the accused persons, beyond reasonable doubt, and
therefore, the accused deserve to be acquitted of the offence with
which they were charged, convicted and sentenced, by allowing the
present appeal.
41. Shri S.P. Katneshwarkar, learned Counsel for the appellants-
accused, in support of his contention that there was no cruelty,
illtreatment or harassment to the deceased Chandrabhagabai or
abetment by accused persons to commit suicide by her, relied upon
couple of judicial pronouncements. Firstly, he relied on the case of
Deepak s/o Bhimrao vs. State of Mah. 2004 (2) Mh.L.J. 987,
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30 criapl-36.01
more particularly on para 14 thereof which reads as follows;
“14. There is no doubt that; the concept of cruelty and its
effect varies from individual to individual and it also depends
on the social and economic status to which the parties belong.
It is also true that cruelty may not be physical and even
mental torture and abnormal behaviour may amount tocruelty, in the instant case, the father of deceased has
spoken of complaint; of beating by Sunita. However, asobserved above, his evidence is found to be exaggerating and
contradictory to the seizure memo. PW 5 Baby speaks bareminimum on the point of alleged cruelty. Moreover, she is a
married sister of deceased Sunita and is not expected to
possess knowledge in respect of alleged harassment to Sunita.
On the point of cruelty, evidence of PW 6 Vimal can also not
be accepted. In answer to a question, she has deposed in
cross-examination that Sunita had gone to Ghatanji prior to
2-3 days of the incident. However, according to PW 4Narayan, father of the deceased, the incident occurred on the
day on which Sunita returned from Ghatanji, place of her
husband. Thus, in absent of direct oral or documentaryevidence, the prosecution case cannot be accepted on the
basis of hear-say evidence.”
42. Learned Counsel for the appellants, also relied upon Kishori
Lal vs. State of M.P. 2007 DGL (Soft) 706 , more so on paras. 6
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31 criapl-36.01
and 7 which read thus;
“6. Section 107 IPC defines abetment of a thing. The
offence of abetment is a separate and distinct offenceprovided in the Act as an offence. A person, abets the doing
of a thing when (1) he instigates any person to do that thing;
or (2) engages with one or more other persons in anyconspiracy for the doing of that thing; or (3) intentionally
aids, by act or illegal omission, the doing of that thing.
These things are essential to complete abetment as a crime.
The word “instigate” literally means to provoke, incite, urge
on or bring about by persuasion to do any thing. The
abetment may be by instigation, conspiracy or intentional aid,as provided in the three clauses of Section 107. Section 109
provides that if the act abetted is committed in consequenceof abetment and there is no provision for the punishment of
such abetment, then the offender is to be punished with thepunishment provided for the original of offence. “Abetted” in
Section 109 means the specific offence abetted. Therefore, the
offence for the abetment of which a person is charged with
the abetment is normally linked with the proved offence.
7. In cases of alleged abetment of suicide there must be
proof of direct or indirect acts of incitement to the
commission of suicide. The mere fact that the husband
treated the deceased-wife with cruelty is not enough. [See::: Downloaded on – 09/06/2013 17:10:05 :::
32 criapl-36.01Mahinder Singh v. State of M.P.(1995 AIR SCW 4570) ].
Merely on the allegation of harassment, conviction in termsof Section 306 IPC is not sustainable. There is ample
evidence on record that the deceased was disturbed because
she had not given birth to any child. PWs. 8, 10 and 11 have
categorically stated that the deceased was disappointed dueto the said fact and her failure to beget a child and she was
upset due to this. ”
43. Learned Counsel for the appellants, also relied upon the case
of Baban vs. State of Mah. 2007 (Supp) Bom.C.R. 536, on para
9, wherein observations of the Hon’ble Apex Court in “Girdhar
Shankar Tayade vs. State of Maha. 1, 2002 DGLS 471, are
reproduced, and also on para 27, which read as under:
“9. The Apex Court in (“Girdhar Shankar Tayade vs. State
of Maharashtra”) 2002 DGLS 471 …………………………………….
has explained the purpose and meaning of expression
“cruelty” as defined in section 498-A of the Indian Penal
Code. The basic purport of the statutory provision is to avoid
“cruelty” as defined by attributing statutory meaning thereto.
The word “cruelty” has to be understood in the context of
two explanations enumerated under section 498-A of the
Indian Penal Code. The first explanation (a) involves three
specific situations to wit : (i) willful conduct which would
drive the woman to commit the suicide or (ii) to cause grave
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33 criapl-36.01
injury to herself or (iii) danger to life, limb or health. Such
willful conduct may be mental and or physical as the case
may be. Another explanation (b) covers coercive harassment
on account of non-fulfillment of unlawful demand. It is well
settled that the charges of matrimonial cruelty and that of
abetment to the suicide of a married woman are distinct. Still
however, when both the charged are levelled then the
prosecution must establish nexus between cruelty and the
suicide of the married woman.
27.
The recitals of the said Chitthi (Article-8) have not
been duly proved. The handwriting expert did not corroborate
the case of prosecution regarding identity of the handwriting
of the Chitthi (Article-8). Even assuming that there was
some quarrel in the relevant morning, which could not be
tolerated by deceased Sau. Aruna, yet that by itself can not
be regarded as the act of “cruelty” within the meaning of
section 498-A of the Indian Penal Code. This Court in
(“Ravindra Pyarelal Bidan and others vs. State of
Maharashtra“) 1993 Cri.L.J. 3019 has held that the cruelty
established has to be of such gravity that was likely to drive
a woman to commit suicide. It is further observed that if
suicide is established then it has to be established that it
was occasioned on account of cruelty which was of sufficient
gravity so as to lead a reasonable person placed in similar
circumstances to commit suicide. This Court expressed view
that mere harassment by itself can not be regarded as
“cruelty”. The harassment has to be with a definite object,
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34 criapl-36.01
namely, to coerce the woman or any person related to her to
meet any unlawful demand. ”
44. Lastly, learned Counsel for the appellants, relied upon the
case of Supadu vs. State of Mah. [2006(2) Mh.L.J. (Cri.) 888],
especially on para 30 thereof which reads :-
“30. So far as the question of sentence is concerned, it may
be seen that appellant No.1 Supadu was aged about 65 yearsand appellant No. 2 Sarubai was aged about 58 years at the
relevant time. A period of about 13 years has elapsed afterthe impugned order of conviction and sentence. By now, the
appellant No.1-Supadu has become old aged person of about
78 years and appellant No.2 too has become quite old ofabout 71 years. In view of their advance age, some leniency
will have to be shown to them. The impugned order of
sentence will have to be modified, in keeping with the
circumstances and age of the appellants No. 1 and 2, thoughno modification is required insofar as the sentence awarded
to appellant No.3-Baban is concerned.)”
45. Learned A.P.P. Shri V.G. Shelke for the respondent-State
canvassed that the testimonies of PW-3 Kesharbai, PW-4
Ramchandra, PW-7 Gorakh, PW-8 Suryakant and PW-11 Maroti,
so also PW-2 Sajjanbai, are consistent in respect of illtreatment
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35 criapl-36.01
and harassment given by the accused persons to victim
Chandrabhagabai, due to non fulfillment of their demand for Rs.
25,000/= for flour mill, by her and her parents, which connect the
accused persons with the crime. It is further canvassed that
although the aforesaid witnesses are the family members/close
relatives of the victim, they have deposed fairly and put forth truth
before the court, and therefore, their testimonies deserve to be
believed and are required to be accepted. It is also canvassed that
since the victim Chandrabhagabai was subjected to cruelty by the
accused persons in the house, there cannot be any independent
witness, and therefore, the prosecution could not examine any
independent witness to the same, and absence of independent
witness cannot be construed as flaw in the prosecution case.
46. As regards delay of three days caused in filing the FIR,
learned APP submitted that the prosecution has explained the said
delay, properly and convincingly, in the testimony of PW-8
Suryakant i.e. the complainant, since, initially although he had
gone to police out post, Nadurghat, for lodging the complaint, he
was advised to lodge the same with police station at Kaij, which
consumed time, and accordingly, FIR was lodged on 1.3.1999 with
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36 criapl-36.01
Police Station, Kaij, and hence, the said delay cannot be said to be
fatal to prosecution case, as the same is properly explained.
47. Learned A.P.P. further submitted that the learned trial court
has scrutinized and assessed the evidence in proper perspective and
rightly sentenced the accused persons, and there are no glaring
defects or infirmities so as to interfere in the finding recorded by
the trial court, warranting reversal thereof, and accordingly, urged
that the present appeal bears no substance and same deserves to
be dismissed.
48. I have perused the oral, documentary, as well as medical
evidence adduced and produced on record by the prosecution, as
well as perused the impugned judgment and order dated
29.12.2000, and also considered the submissions advanced by the
learned counsel for the parties, anxiously, and perused the judicial
pronouncements cited by the learned counsel for the appellants-
accused, carefully, and I am inclined to accept the submissions
advanced by the learned counsel for the appellants-accused, since
there are infirmities, discrepancies and lacunae in the prosecution
case, and the prosecution has failed to prove and establish the guilt
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37 criapl-36.01
of the appellants-accused, beyond reasonable doubt, since, the
prosecution witnesses, and more particularly who are the family
members and close relatives of the victim Chandrabhagabai, have
not attributed specific role to each of the accused persons in respect
of the alleged harassment and ill-treatment or cruelty, to which the
victim Chandrabhagabai was allegedly subjected by them. Further,
the prosecution has not examined any independent witness to the
alleged illtreatment/harassment to victim Chandrabhagabai, nor
examined at least any neighbour, who could have thrown some
light on the alleged illtreatment to victim Chandrabhagabai.
49. Moreover, although Janabai, mother of the victim
Chandrabhagabai and PW-8 Suryakant, reached at Sarula, first in
point of time and who was the source of information to PW-8
Suryakant and whose statement under Section 161 of the Code of
Criminal Procedure was recorded, is withheld by the prosecution,
for the reasons best-known to it, and therefore, the submission
advanced by the learned counsel for the appellants-accused that the
testimony of the complainant PW-8 Suryakant is hear-say evidence,
cannot be overlooked. Moreover, sight also cannot be lost of the
aspect that the prosecution witnesses have consistently deposed
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38 criapl-36.01
that victim Chandrabhagabai was meted out harassment/ill-
treatment by accused persons on the ground that she did not know
cooking/domestic work, and it is also pertinent to note that it has
come in the evidence that the alleged demand by accused persons
for Rs.25,000/= for installation of flour mill, was made about one
year prior to the incident, and as such, there was no close
proximity between the alleged demand of said amount and the
alleged illtreatment/harassment to the victim, due to non
fulfillment thereof, and consequently; with the alleged suicide
committed by the victim, and the prosecution has apparently failed
to establish nexus among the said vital aspects. Moreover, it is not
the case of the prosecution that there was any recent/immediate
glaring incident or unlawful demand by accused to victim
Chandrabhagabai, resulting into incitement to her to commit
suicide.
50. Besides that, the fact cannot be ignored that almost 8 to 9
years had passed since marriage of victim Chandrabhagabai with
accused No.1 Limbraj and even three children were begotten out of
the said wedlock, and considering the said passage of time after
the marriage and birth of three children, it is not conceivable that
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39 criapl-36.01
she was subjected to such a cruelty which drove her to commit
suicide. It is also material to note that there was not a single
complaint of harassment/illtreatment, by victim Chandrabhagabai
herself or by her parental relatives against the accused persons
since last 8 to 9 years after her marriage till the date of the alleged
incident, and merely asking her to do household work or work at
own field cannot be termed as “cruelty” as contemplated under
Section 498-A of IPC.
51. Moreover, the chain of the prosecution case is also not
complete, since although viscera of the deceased Chandrabhagabai
was preserved at the time of post mortem, it was not sent to the
chemical analyzer for examination purpose, and therefore, there is
no C.A. report in that respect, and consequently; no final report
regarding cause of death of victim Chandrabhagabai, is on record,
and the same gives fatal blow to the case of the prosecution.
Hence, the defence taken by the accused persons that the victim
Chandrabhagabai might have committed suicide due to intolerable
trouble of kidney disease, which is apparently supported by PW-10
Shrimant Dhakne in his testimony, also cannot be ignored , since
the accused have probabilized the said defence.
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40 criapl-36.01
52. In substance, the prosecution has failed to prove and
establish the very ingredients of section 498-A of IPC, and also
failed to establish nexus between the alleged cruelty and the
suicide committed by Chandrabhagabai, to connect the accused
persons therewith, and consequently; with the alleged crime.
Moreover, having comprehensive view of the matter and considering
the totality of the testimonies of prosecution witnesses, the
ingredients of Section 107 of IPC in respect of abetment, such as,
(i) instigate any person to commit an offence, or
(ii) engaging in a conspiracy for committing it; or
(iii) intentionally aiding a person to commit it;
are absent in the present case and on that count also, prosecution
case fails.
53. Apart from that, there is also delay of three days in lodging
the FIR, since the alleged incident occurred on 26.2.1999, whereas
the FIR was lodged on 1.3.1999. In the said context, the
prosecution tried to give explanation that the complainant PW-8
Suryakant has stated in his deposition that initially he had gone to
Police Out Post, Nandurghat, but he was advised to lodge the
complaint with Police Station, Kaij, which consumed time, and
accordingly; he lodged FIR with Kaij Police Station, on 1.3.1999.
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41 criapl-36.01
However, it is worth noting that complainant PW-8 Suryakant was
advised on 27.2.1999 to lodge the FIR with Police Station, Kaij, and
hence, he could have approached Kaij Police Station on the same
day or at least on next day i.e. 27.2.1999, but admittedly, he did not
approach Kaij Police Station either on 27.2.1999 or on 28.2.1999, as
admittedly, he approached Kaij Police Station, only on 1.3.1999 for
which no justifiable reason is coming forward, which apparently
gave room to concoction and implication of the appellants in the
present case, falsely, and hence, the said delay is fatal to the case
of the prosecution and hampers its case, and the explanation given
by prosecution in that respect, is not plausible and convincing.
54. In the circumstances, having comprehensive view of the
matter, and also considering judicial pronouncements cited by
learned counsel for appellants in respect of Section 498 and Section
306 of IPC, it is amply clear that the prosecution has failed to bring
the guilt at home against the accused persons, and has failed to
prove and establish the charges levelled against them, beyond
reasonable doubt. Consequently, convictions and sentences inflicted
upon the appellants deserve to be quashed and set aside and they
deserve to be acquitted of the said charges, by allowing present appeal.
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42 criapl-36.01
55. In the result, present appeal is allowed, and the judgment
and order dated 29.12.2000, rendered by the learned II Additional
Sessions Judge, Ambajogai, in Sessions Case No. 59 of 1999,
thereby convicting and sentencing the present appellants-original
accused for the offences punishable under Sections 498-A and 306
read with Section 34 of Indian Penal Code, with which they were
charged and tried, is quashed and set aside, and the appellants-
accused stand acquitted of the said offences. Fine amount, if any,
paid by the appellants-accused, be refunded to them, and their bail
bonds stand cancelled.
pnd/criapl-36.01 (Shrihari P. Davare, J.)
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