{"id":145402,"date":"2011-04-06T00:00:00","date_gmt":"2011-04-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/limbraj-si-vishnu-dhakane-vs-the-state-of-maharashtra-on-6-april-2011"},"modified":"2018-08-05T08:54:59","modified_gmt":"2018-08-05T03:24:59","slug":"limbraj-si-vishnu-dhakane-vs-the-state-of-maharashtra-on-6-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/limbraj-si-vishnu-dhakane-vs-the-state-of-maharashtra-on-6-april-2011","title":{"rendered":"Limbraj S\/I Vishnu Dhakane vs The State Of Maharashtra on 6 April, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Limbraj S\/I Vishnu Dhakane vs The State Of Maharashtra on 6 April, 2011<\/div>\n
Bench: Shrihari P. Davare<\/div>\n
                                          1                             criapl-36.01\n\n                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                            BENCH AT AURANGABAD\n\n\n\n\n                                                                          \n                          CRIMINAL  APPEAL NO.  36 OF 2001\n\n\n\n\n                                                  \n     01.   Limbraj s\/i Vishnu Dhakane,\n           age 41 years, occup. Agriculture,\n\n\n\n\n                                                 \n           r\/o Sarul, Tq. Kaij, District Beed.\n\n\n     02.   Bysakhu w\/o Vishnu Dhakne,\n           age 66 years, occupation : Agril.\n\n\n\n\n                                      \n           r\/of Sarul, Tq. Kaij, District Beed.\n                      \n     03.   Vishnu s\/o Baburao Dhakne, \n                     \n           age 71 years, occup. agriculture,\n           r\/of Sarul, Tq. and District Beed.\n      \n\n     04.   Youvraj s\/o Vishnu Dhakne, \n           age 36 years, occup. agriculture,\n   \n\n\n\n           r\/o Sarul, Tq. Kaij, District Beed.\n\n\n\n\n\n     05.   Dhanraj s\/o Vishnu Dhakne,\n           age 20 years, occup. agriculture,                  Appellants\/\n           r\/o Sarul, Tq. Kaij, District Beed.                orig. accused.\n                        versus\n\n\n\n\n\n           The State of Maharashtra, \n           through Police Station Officer,           Respondent\/\n           Police Station, Kaij, Dist.Beed.          orig. complainant\n                        -------\n           Shri S.P. Katneshwarkar, Advocate, for appellants.\n           Shri V.G. Shelke, A.P.P. for the  Respondent-State.\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 17:10:05 :::\n                                             2                              criapl-36.01\n\n\n                                        Coram :      Shrihari  P.  Davare,   J.\n<\/pre>\n
                                        Judgment   reserved   on : 23.3.2011
\n                                        Judgment pronounced on:  06.4.2011<\/p>\n
     Judgment (Per : Shrihari P. Davare, J.)<\/p>\n
     01.    Heard learned counsel for the parties.\n<\/p>\n
     02.    This is an appeal, preferred by original accused Nos. 1 to 5, <\/p>\n
     challenging   the   conviction   and   sentence   inflicted   upon   them,   by <\/p>\n
     way of judgment and order dated 29.12.2000, rendered by learned <\/p>\n
     II Additional Sessions Judge, Ambajogai, in Sessions Case No.59 of <\/p>\n
     1999, thereby convicting them for offence punishable under Section <\/p>\n
     498-A,   read   with   Section   34,   of   the   Indian   Penal   Code,   and <\/p>\n
     sentencing them to suffer rigorous imprisonment for one year, each <\/p>\n
     and to pay fine of Rs.500\/-, each, in default, to undergo further <\/p>\n
     rigorous imprisonment for three months, each, and also convicting <\/p>\n
     them for offence under Section 306, read with Section 34, of  IPC, <\/p>\n
     and   sentencing   them   to   suffer   rigorous   imprisonment   for   three <\/p>\n
     years, each and to pay fine of Rs.1000\/- each, in default to suffer <\/p>\n
     further rigorous imprisonment for six months, and also directing <\/p>\n
     the aforesaid substantive sentences to run concurrently.\n<\/p>\n
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                                             3                             criapl-36.01<\/p>\n
     03.   Briefly stated, the facts of the case, which gave rise to the <\/p>\n
     present appeal, are that the victim Chandrabhagabai, who was the <\/p>\n
     daughter of PW-11 Maroti Kisan Choure, resident of village Jivachi <\/p>\n
     Wadi, married to accused No.1, namely, Limbraj, resident of village <\/p>\n
     Sarul, Taluka Kaij, District Beed, about 8 to 9 years back, and <\/p>\n
     accused Nos. 2 Bysakhu and accused No. 3 Vishnu are her mother-\n<\/p>\n
     in-law and father-in-law respectively, whereas accused No.4 Youvraj <\/p>\n
     and accused No.5 Dhanraj are her brothers-in-law, who all were <\/p>\n
     residing   jointly.     Out   of   the   wedlock   of   Chandrabhagabai   with <\/p>\n
     accused No.1 Limbraj, two sons and one daughter were begotten.\n<\/p>\n
     04.   It is alleged that the victim Chandrabahagabai was found to <\/p>\n
     have consumed some poisonous substance and lying in unconscious <\/p>\n
     condition in front of the cattle-shed of the accused at his  field, on <\/p>\n
     26.2.1999, which was noticed by PW-10 Shrimant Dhakne, firstly, <\/p>\n
     and hence, he called her and tried to make her sit, but she did not <\/p>\n
     respond,   and   vomited.   He   smelled   poison   from   her   mouth,   and <\/p>\n
     therefore,  he informed one Nilkanth and thereafter, she was taken <\/p>\n
     to Primary Health Centre, Neknoor, firstly, in the bullock-cart, and <\/p>\n
     thereafter to Civil Hospital, Beed, where she was declared dead.\n<\/p>\n
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                                           4                             criapl-36.01<\/p>\n
     Thereafter, inquest panchanama of the dead body was conducted in <\/p>\n
     the Civil Hospital, Beed.   Moreover, PW-6 Dr. Kailash Hiraman <\/p>\n
     Dudhal   conducted   post   mortem   on   the   dead   body   of <\/p>\n
     Chandrabhagabai,   on  26.2.1999,   whereafter     her   dead   body   was <\/p>\n
     brought  to village  Sarul.   Accordingly,   A.D. No.16 of 1999 was <\/p>\n
     registered with Police Station, Kaij,   and then CR No.48 of 1999 <\/p>\n
     was registered,  on 1.3.1999 for offences punishable under Sections <\/p>\n
     498-A and 306 read with Section 34 of the IPC, by Police Head <\/p>\n
     Constable   Shri   Dnyaneshwar   Tukaram   Pawar   (PW-5).     Head <\/p>\n
     Constable H.Y. Munjal was assigned enquiry of the said A.D. case, <\/p>\n
     and accordingly,   he visited the spot of the incident in front of the <\/p>\n
     cattle shed belonging to accused No.3 Vishnu and collected samples <\/p>\n
     of soil of vomit and plain soil from the said spot and drew spot <\/p>\n
     panchanama dated 27.2.1999 (Exh.19) in presence of   Suryabhan <\/p>\n
     Laxman Dhakne (PW-1) and one Babasaheb Dadarao Jadhav.\n<\/p>\n
     05.   It is also the case of the prosecution that on 28.2.1999, Police <\/p>\n
     Head Constable Babu Sidram Mhaske (PW-12)  was the in charge <\/p>\n
     of police out post, Nandurghat and on that day, at about 5.00 p.m., <\/p>\n
     Suryakant Maroti Chaure (PW-8), the brother of the victim, lodged <\/p>\n
     complaint, which   was recorded by PW-12 Babu Mhaske, as per <\/p>\n
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\n                                               5                              criapl-36.01<\/p>\n
     narration   of   Suryakant..     Thereafter,   PW-12   Babu   Mhaske <\/p>\n
     prepared   occurrence   report,   which   is   produced   at   Exh.   26,   and <\/p>\n
     investigation   papers   were   handed   over   to   him.     Accordingly,   on <\/p>\n
     1.3.1999,   he  recorded   statements  of  witnesses,  namely,  Janabai <\/p>\n
     Maroti   Chaure   (mother   of   the   victim   Chandrabhagabai),   Maroti <\/p>\n
     Kishan   Chaure   (PW-11   and   father   of   the   victim),   Ramchandra <\/p>\n
     Maroti Chaure (PW-4) and Chanderrao Dnyanoba Dhakne (PW-9).\n<\/p>\n
     On   2.3.1999,   he   recorded   statements   of   the   witnesses,   namely, <\/p>\n
     Gorakh   Yedba   Chaure   (PW-7),     who   is   cousin   of   the   victim, <\/p>\n
     Ambadas,   Sajjanbai   (PW-2),   Nilkanth,   and   Shrimant   Dhakne <\/p>\n
     (PW-10)   and   others.     Earlier,   on   27.2.1999,   he   had   recorded <\/p>\n
     statement of PW-10 Shankar Dhakne,  in connection with A.D. case <\/p>\n
     No.16 of 1999, as aforesaid.   Moreover, PW-12 Babu Mhaske also <\/p>\n
     arrested the accused persons on 1.3.1999.\n<\/p>\n
     06.    During the course of investigation, the sample of vomit soil <\/p>\n
     and plain soil were sent to the Chemical Analyzer for analysis, vide <\/p>\n
     forwarding letter dated 20.8.1999, which is produced at Exh. 41.\n<\/p>\n
     Moreover,   one   letter   was   issued   to   the   Civil   Surgeon,   Beed,   on <\/p>\n
     19.4.1999,   requesting   him   to   hand   over     the   viscera   to     Police <\/p>\n
     Constable Bk. No.180 who was deputed for the said purpose,   for <\/p>\n
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\n                                             6                              criapl-36.01<\/p>\n
     being forwarded to the Forensic Science Laboratory, Aurangabad, <\/p>\n
     and the copy of the said letter is produced at Exhibit 42.   It is <\/p>\n
     alleged   by  the   complainant   Suryakant   Chaure   (PW-8)     that   the <\/p>\n
     accused persons subjected the deceased Chandrabhagabai to cruelty <\/p>\n
     to meet their unlawful demand of money and she was tortured and <\/p>\n
     thereby they abetted Chandrabhagabai to commit suicide.\n<\/p>\n
     07.    After   receipt   of   post   mortem   report   and   the   advanced <\/p>\n
     certificate   of  cause   of  death,  and   on completion  of  investigation, <\/p>\n
     charge-sheet was filed before the learned Judicial Magistrate, First <\/p>\n
     Class,   Kaij,   on   13.4.1999,   and   thereafter   the   said   case   was <\/p>\n
     committed   to   the   Court   of   Sessions,   Ambajogai,   by   the   learned <\/p>\n
     J.M.F.C.,   Kaij,   on   21.6.1999.     Accordingly,   charge   was   framed <\/p>\n
     againstaccused  persons  (Exh.10-C),  on  18.8.2000  and   their  pleas <\/p>\n
     were recorded, and they pleaded not guilty to the charges levelled <\/p>\n
     against them and claimed to be tried.  The defence of the accused is <\/p>\n
     of total denial and they stated that they have been implicated in <\/p>\n
     present case, falsely, and accordingly, they claimed to be innocent.\n<\/p>\n
     08.    To substantiate its case, inasmuch as 12 witnesses have been <\/p>\n
     examined by the prosecution, as mentioned below.\n<\/p>\n
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                                               7                               criapl-36.01\n\n\n\n\n                                                                                \n             PW-1  Suryabhan Laxman Dhakne               Panch to spot panchanama\n                                                         (Ex.19),regarding collection\n                                                         of soil samples. He turned \n\n\n\n\n                                                        \n                                                         hostile.\n\n<\/pre>\n
            PW-2  Sajjanbai Ramchandra Chaure  Sister of the victim.\n<\/p>\n
             PW-3  Kesharbai Ambadas Kendre      Sister of the victim.\n<\/p>\n
              PW-4  Ramchandra Maroti Chaure     Brother of the victim.\n<\/p>\n
             PW-5  Dnyaneshwar Tukaram Pawar  Police Head Constable, who<\/p>\n
                                                 registered   offence  against
\n                          ig                     the accused persons.\n<\/p>\n
             PW-6 Dr.Kailash Hiraman Dudhal     Medical Officer,who carried
\n                                                 pm on the deceased.\n<\/p>\n
            PW-7  Gorakh Yedba Chaure                     Cousin of the victim.\n<\/p>\n
             PW-8  Suryakant Maroti Chaure       Complainant and brother
\n                                                  of the victim.\n<\/p>\n
             PW-9 Chanderrao Dnyanoba Dhakne  Cousin of the victim.\n<\/p>\n
             PW-10  Shrimant Shankar Dhakne   He noticed the victim lying
\n                                                in  the field, in unconscious
\n                                                condition, firstly.\n<\/p>\n
             PW-11 Maroti Kishan Choure          Father of the victim.\n<\/p>\n
            PW-12 Babu Sidram Mhaske                       Police Head Constable and
\n                                                           Investigating Officer.\n<\/p>\n
     09.     On   the   background   of   aforesaid   oral   evidence   led   by   the <\/p>\n
     prosecution,   accused   neither   examined   themselves   on   oath,   nor <\/p>\n
     examined any witness in defence. Accordingly, after assessing and <\/p>\n
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\n                                             8                              criapl-36.01<\/p>\n
     analyzing   oral   and   documentary   evidence,   and   considering   the <\/p>\n
     submissions advanced by the learned counsel for the parties, the <\/p>\n
     learned Sessions Judge,   Ambajogai, convicted and sentenced the <\/p>\n
     accused   persons,     as   mentioned   hereinabove,   by   the   impugned <\/p>\n
     judgment   and   order   dated   29.12.2000.     Being   aggrieved   and <\/p>\n
     dissatisfied   by   the   said   judgment   and   order   of   conviction   and <\/p>\n
     sentence,   original   accused   have   preferred   present   appeal,   and <\/p>\n
     prayed for quashment thereof.\n<\/p>\n
     10.    Before adverting to the submissions advanced by the learned <\/p>\n
     counsel for the parties, it is necessary to scrutinize and  analyzing <\/p>\n
     the evidence adduced and produced by the parties, and in the said <\/p>\n
     context, coming to the deposition of PW-8 Suryakant Chaure, who <\/p>\n
     is the complainant and brother of the victim, he stated that he, <\/p>\n
     along with his parents and   brother Ramchandra reside together <\/p>\n
     and Kesharbai and deceased Chandrabhagabai are her sisters. He <\/p>\n
     stated that Chandrabhagabai married with accused No.1.  Limbraj <\/p>\n
     about nine years prior to the incident and she gave birth to two <\/p>\n
     sons and one daughter out of the wedlock with accused No.1.  He <\/p>\n
     further stated that since her marriage, deceased Chandrabhagabaii <\/p>\n
     was illtreated and even food was not provided to her and she used <\/p>\n
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\n                                               9                              criapl-36.01<\/p>\n
     to be assaulted, and also compelled to do work in the field only.  He <\/p>\n
     further   stated   that   her   husband   i.e.   accused   No.1,   as   well   as <\/p>\n
     parents-in-law   and   brothers   in   law,     i.e.   accused   Nos.   2   to   5, <\/p>\n
     illtreated her, and she had disclosed the same to her parents when <\/p>\n
     she had visited to her parental house, at the time of festivals.  He <\/p>\n
     stated that he himself, his parents, and his brother used to go to <\/p>\n
     matrimonial home of his sister Chandrabhagabai, and request her <\/p>\n
     in-laws to treat her well, however, ill-treatment to the victim at the <\/p>\n
     hands of her  in-laws, continued. PW-8 Surykanat also stated that <\/p>\n
     the   victim   Chandrakalabai   disclosed   him   that   her   in-laws <\/p>\n
     demanded   Rs.25,000\/=   to   purchase   a   flour   mill,   but   he   had <\/p>\n
     expressed inability therefor.\n<\/p>\n
     11.    PW-8 Suryakant further stated that the incident occurred on <\/p>\n
     26.2.1999,   when   he   was   at   Bhaurao   Co-operative   Sugar   factory, <\/p>\n
     Biloli. On 27.2.1999, PW-10 Shrimant Dhakne and PW-7 Gorakh <\/p>\n
     Choure   came   to   him   and   informed   him   about   the   death   of <\/p>\n
     Chandrabhagabai due to consumption of poisonous substance, and <\/p>\n
     hence,  PW-8  Suryakant,  PW-4 Ramchandra  and   PW-2 Sajjanbai <\/p>\n
     rushed   and   collected   his   father   PW-11   Maroti,   who   was   at <\/p>\n
     Shripatroi Wadi, and then all of them proceeded to village Sarola, <\/p>\n
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\n                                             10                              criapl-36.01<\/p>\n
     to see the victim Chandrabhagabai.  However, they found that last <\/p>\n
     rites   of   Chandrbhagabai   were   already   performed   prior   to   their <\/p>\n
     arrival.     PW-8   Suryakant   further   stated   that   his   mother   was <\/p>\n
     weeping and asked him whether he had brought the amount of Rs.\n<\/p>\n
     25,000\/= for which victim was harassed on the previous day and <\/p>\n
     she committed suicide due to harassment at the hands of her in-\n<\/p>\n
     laws to meet the demand of said money, and thereafter, they all <\/p>\n
     returned back to village Jivachi Wadi.   He further stated that on <\/p>\n
     next day, he went to Police Station, Kaij,   and his complaint was <\/p>\n
     recorded at 4.00 p.m. at Nandurghat police out post, as per his <\/p>\n
     narration, which is marked as Exh.32.\n<\/p>\n
     12.    During the course of cross examination, PW-8 stated that the <\/p>\n
     in-laws of Chandrabhagabai,  started giving her ill-treatment after <\/p>\n
     about 1 to 1-1\/2 months after the marriage and she was being ill-\n<\/p>\n
     treated   on   the   ground   that   she   was   unable   to   cook   the   food, <\/p>\n
     properly.   He   visited   matrimonial   home   of   Chandrabhagabai   for <\/p>\n
     about 8 to 9 times since her marriage until her death, and the ill-\n<\/p>\n
     treatment by in-laws was  tolerated by her with the hope that they <\/p>\n
     would improve their behaviour and would treat her, properly.  PW-8 <\/p>\n
     Suryakant further stated that the amount of Rs.25,000\/= for flour <\/p>\n
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\n                                             11                             criapl-36.01<\/p>\n
     mill,     was   demanded   about   one   year   prior   to   the   suicide   by <\/p>\n
     Chandrabhagabai, and he had assured her in-laws  that he would <\/p>\n
     meet   their   demand   of   money,   after   completion   of   season   of <\/p>\n
     sugarcane. Moreover, the defence of the accused was put to PW-8 <\/p>\n
     Suryakant   that the victim Chandrabhagabai was suffering from <\/p>\n
     kidney disease since about 2-3 years prior to the incident, and she <\/p>\n
     was also weak and since she could not bear sufferings, she resorted <\/p>\n
     to end her life, but same was denied by him. As regards flour mill <\/p>\n
     of in-laws of victim Chandrabhagabai, he stated that he does not <\/p>\n
     know for how much period it was run, and he was unable to state <\/p>\n
     the period till when the accused ran the flour mill  after marriage <\/p>\n
     of Chandrabhagabai, and hence, it was suggested to him that there <\/p>\n
     was no illtreatment or harassment to deceased Chandrabhagabai <\/p>\n
     with intend to meet the demand of Rs.25,000\/= for flour mill, at <\/p>\n
     any time, but he  denied  the same.    He  was  suggested that the <\/p>\n
     death of the victim was not caused on account of ill-treatment or <\/p>\n
     harassment to her, but he denied the same.\n<\/p>\n
     13.    Thus,   it is evident from the deposition of PW-8 Suryakant <\/p>\n
     that although the victim Chandrabhagabai was ill-treated since her <\/p>\n
     marriage for about 8-9 years, and even if the alleged incident of <\/p>\n
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\n                                              12                              criapl-36.01<\/p>\n
     suicide by her took place on 26.2.1999, yet there appears to be no <\/p>\n
     immediate  prior  incident,  having  close  proximity  which could  be <\/p>\n
     said   to   have   led   to   committal   of   suicide   by  her.    Moreover,  the <\/p>\n
     alleged demand of Rs. 25,000\/= for flour mill by the in-laws of the <\/p>\n
     victim   Chandrabhagabai   does   not   appear   to   have   coerced <\/p>\n
     Chandrakalabai or her relatives to fulfill the said alleged unlawful <\/p>\n
     demand.  In fact, it appears from the testimony of PW-8 Suryakant <\/p>\n
     that  victim  Chandrabhagabai was  ill-treated  for the  reason  that <\/p>\n
     she was not able to cook the food, properly, and it is apparent from <\/p>\n
     his testimony  that the amount of flour mill was demanded about <\/p>\n
     one year prior to the incident, as stated earlier, and as such,  there <\/p>\n
     is no close proximity in the alleged unlawful demand of money and <\/p>\n
     the suicide by victim Chandrabhagabai.\n<\/p>\n
     14.    The   defence   put   up   its   case   to   witness   Suryakant     that <\/p>\n
     Chandrabhagabai was suffering from kidney disease since 2-3 years <\/p>\n
     prior to the incident and had become weak and was unable to bear <\/p>\n
     suffering, and hence, she decided to end her life,   by committing <\/p>\n
     suicide, but same was denied by him.\n<\/p>\n
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                                            13                              criapl-36.01<\/p>\n
     15.    That   takes   me   to   the   deposition   of   PW-9   Chanderrao <\/p>\n
     Dnyanoba   Dhakne,   cousin   of   the   victim   Chandrabhagabai.     He <\/p>\n
     stated that the marriage of Chandrabhagabai took place about 8 to <\/p>\n
     9 years prior to the incident, with accused No.1 Limbraj,  and two <\/p>\n
     sons and two daughters were begotten out of the said wedlock. He <\/p>\n
     further stated that the in-laws of Chandrbhagabai used to beat her <\/p>\n
     and did not provide food to her, properly and Chandrabhagabai had <\/p>\n
     disclosed the same to him, and in turn, he disclosed the same to <\/p>\n
     her   parents.     He   stated   that   he   also   persuaded   in-laws   of <\/p>\n
     Chandrabhagabai to treat her well, however, they continued to give <\/p>\n
     ill-treatment to her.  He further stated that Chandrabhagabai had <\/p>\n
     disclosed him about 12 months prior to the incident that she was <\/p>\n
     harassed to meet the demand of Rs.25,000\/= required for  purchase <\/p>\n
     of flour mill, but her parents were unable to meet the said demand, <\/p>\n
     and hence, she was further harassed by her in laws.   He further <\/p>\n
     stated that on 26.2.1999, he learnt that victim committed suicide <\/p>\n
     by consuming poison on account of ill-treatment and harassment by <\/p>\n
     her in-laws.\n<\/p>\n
     16.    In   the   cross   examination,   PW-9   Chanderrao   stated   that <\/p>\n
     Chandrabhagabai   was   ill-treated   and   harassed   for   about   2   to   4 <\/p>\n
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\n                                               14                              criapl-36.01<\/p>\n
     years before the incident, to meet the unlawful demand of money <\/p>\n
     for flour mill which was run by her in-laws 4 to 5 years prior to the <\/p>\n
     incident.     He   further   stated   that   the   police   did   not   record   his <\/p>\n
     statement, nor he stated before the police, regarding ill-treatment <\/p>\n
     and   harassment   to   victim   Chandrabhagabai.     However, <\/p>\n
     subsequently, he stated that police had interrogated with him and <\/p>\n
     he   had   stated   to   the   police   that   prior   to   demise   of <\/p>\n
     Chandrabhagabai,   her     in   laws     started   ill-treating   her   for   non <\/p>\n
     fulfillment of demand of Rs.25,000\/= required for flour mill, but <\/p>\n
     same was not mentioned in his statement, amounting to omission.\n<\/p>\n
     Hence,  suggestion  was   given  to  this   witness  that   in-laws   of   the <\/p>\n
     victim   Chandrabhagabai   never   illtreated   or   harassed   her   on <\/p>\n
     account of non-fulfillment of demand of Rs.25,000\/=, but he denied <\/p>\n
     the same.  He was also suggested that being the relative of victim <\/p>\n
     Chandrabhagabai, he was deposing falsely, but he denied the same.\n<\/p>\n
     17.    It is apparent from the evidence of PW-9 Chanderrao Dhakne <\/p>\n
     that victim Chandrabhagabai was being harassed and ill-treated <\/p>\n
     for about 4 to 5 years prior to the incident,   to meet the alleged <\/p>\n
     unlawful   demand   of   money   for   flour   mill   and   she   disclosed   the <\/p>\n
     same to him about 12 months back from the incident, which, in <\/p>\n
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\n                                              15                              criapl-36.01<\/p>\n
     turn,   was informed by him to her parents.   Initially,   he stated <\/p>\n
     that   the   police   did   not   record   his   statement,   but   later   on   he <\/p>\n
     improved his version and stated that the police had interrogated <\/p>\n
     with   him,   but   the   very   version   of   alleged   ill-treatment   to <\/p>\n
     Chandrabhagabai by her in-laws to meet the demand of Rs.25,000\/-\n<\/p>\n
     for   flour   mill   since   12   months   prior   to   he   demise,   is   under <\/p>\n
     omission, and hence,  same diminishes credibility of his testimony.\n<\/p>\n
     18.<\/p>\n
            Coming to the deposition of PW-11 Maroti Kishan Choure, <\/p>\n
     father   of   the   victim,   who   stated   that   his   daughter <\/p>\n
     Chandrabhagabai married to accused No.1 Limbraj,   about 7 to 8 <\/p>\n
     years prior to the incident and  she was ill-treated at the hands of <\/p>\n
     her husband and in laws,  on the ground that she was not cooking <\/p>\n
     the food, properly, and hence, she was subjected to starvation and <\/p>\n
     also   compelled   to   work   in   the   field.     He   further   stated   that <\/p>\n
     Chandrabhagabai   used   to   tell   him   about   ill-treatment   to   her, <\/p>\n
     whenever  she visited to his house, on account of festivals.  At that <\/p>\n
     time, he and other relatives,  used to persuade her  husband and in <\/p>\n
     laws to treat her well, and accordingly, she used to be treated well <\/p>\n
     for   some   period,   but   again     ill-treatment     to   her,   used   to   be <\/p>\n
     continued.   He stated that the in-laws and brother-in-laws of the <\/p>\n
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\n                                               16                              criapl-36.01<\/p>\n
     victim   were   demanding     Rs.25,000\/-   from   him,     about   one   year <\/p>\n
     prior to the incident, but he was unable to meet the said demand <\/p>\n
     and   her   in-laws   iltreated   her,   since   then.     He   also   stated   that <\/p>\n
     Chandrabhagabai was fade up with the ill-treatment meted out to <\/p>\n
     her,  and hence, resorted to end her life,  by committing suicide.\n<\/p>\n
     19.    In   cross   examination,   PW-11   Maroti   stated   that <\/p>\n
     Chandrabhagabai was harassed for about two years prior to her <\/p>\n
     death,   on   the   ground   that   she   was   unable   to   cook   the   food, <\/p>\n
     properly,   and do the domestic work.   He further   stated that he <\/p>\n
     used to visit matrimonial house of her daughter Chandrabhagabai <\/p>\n
     once or twice in a year.  He also stated that the accused had a flour <\/p>\n
     mill which was run by them for two years after the marriage of <\/p>\n
     Chandrabhagabai,  however,  thereafter it was not functioning.\n<\/p>\n
     20.    Pertinently, it is evident from the testimony of PW-11 Maroti, <\/p>\n
     that his daughter  Chandrabhagabai,  was ill-treated  at the hands <\/p>\n
     of her husband and in laws, since she was unable to cook the food, <\/p>\n
     properly.   As regards unlawful demand of Rs.25,000\/=, he stated <\/p>\n
     that   it   was   made   by   parents-in-law   and   brothers-in-law   of <\/p>\n
     Chandrabhagabai,   about   one   year   prior   to   the   incident,   for   the <\/p>\n
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\n                                              17                              criapl-36.01<\/p>\n
     purpose   of   flour   mill.     Accordingly,   there   is   no   close   proximity <\/p>\n
     between the said demand of money and occurrence of the incident <\/p>\n
     of alleged suicide by the victim, and there is huge gap of about one <\/p>\n
     year   between   the   same.     Moreover,   he   stated   in   the   cross <\/p>\n
     examination   that   he   used   to   visit   matrimonial   house   of   his <\/p>\n
     daughter once or twice a year, and therefore, it is apparent that he <\/p>\n
     was not in close contacts, personally; with Chandrabhagabai and <\/p>\n
     her   husband   and   in-laws,   to   receive   the   first   hand   information <\/p>\n
     about the alleged treatment to her.\n<\/p>\n
     21.    Moreover,   PW-11   Maroti   ambiguously   stated   that   victim <\/p>\n
     Chandrabhagabai  was  illtreated  by  her  husband,  parents  in  law <\/p>\n
     and brothers in law, but  he did not give specific name of any of the <\/p>\n
     accused, attributing any specific role to each of them in the alleged <\/p>\n
     illtreatment   and   harassment   to   his   daughter   Chandrabhagabai, <\/p>\n
     and  therefore, it   is   not  clear  as  to  which  of  the   accused  played <\/p>\n
     which   role   in   such   ill-treatment   and   harassment   on   account   of <\/p>\n
     alleged demand of Rs.25,000\/= for flour mill.\n<\/p>\n
     22.    That takes me to the testimony of PW-3 Kesharbai Ambadas <\/p>\n
     Kendre, sister of the victim Chandrabhagabai, who deposed that <\/p>\n
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\n                                              18                              criapl-36.01<\/p>\n
     Chandrabhagabai  used   to   meet   her   whenever   they   both  used   to <\/p>\n
     visit   their   parental   house   at   Jivachi   Wadi,   and   she   used   to <\/p>\n
     complain  about her starvation and subjecting her to do hard work, <\/p>\n
     such as, removal of cow dunk from the cattle-shed, as well as about <\/p>\n
     her in-laws offering stale food to her.  Kesharbai further stated that <\/p>\n
     the victim was harassed at the hands of her in-laws,  with intend <\/p>\n
     to meet their unlawful demand of Rs.25,000\/= required for flour <\/p>\n
     mill. Kesharbai further stated that harassment being intolerable, <\/p>\n
     Chandrabhagabai consumed poison and committed suicide, and she <\/p>\n
     identified the accused persons before the court.\n<\/p>\n
     23.    In   cross   examination,   Kesharbai   stated   that   in-laws   of <\/p>\n
     Chandrabhagabai  started   ill-treating   her   since   birth  of   the   first <\/p>\n
     child, a female child,  and thereafter two male children were born.\n<\/p>\n
     She   also   stated   that   police   had   interrogated   with   her,   but   then <\/p>\n
     changed  her  version, saying that  police did  not interrogate  with <\/p>\n
     her.   Hence, suggestion was given to her that she deposed falsely <\/p>\n
     that Chandrabhagabai was subjected to cruelty with intent to meet <\/p>\n
     the demand of Rs.25,000\/= for flour mill, but she denied the same.\n<\/p>\n
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                                                19                              criapl-36.01<\/p>\n
     24.    It appears from the testimony of witness Kesharbai that in-\n<\/p>\n
     laws of Chandrabhagabai were ill-treating her, since birth of the <\/p>\n
     first   child,   which   was   a   female   child,   i.e.   2   to   3   years   since <\/p>\n
     marriage,   and   therefore,   a   possibility   of   subjecting   her   to   ill-\n<\/p>\n
     treatment by husband and in-laws on that count, cannot be ruled <\/p>\n
     out.   As regards alleged demand of Rs.25,000\/= and illtreatement <\/p>\n
     and harassment to victim Chandrabhagabai, at the hands of her in-\n<\/p>\n
     laws,   due   to   non-fulfillment   of   the   same,     PW-3   Kesharbai <\/p>\n
     nowhere   stated   in   her   deposition   as   to   which   of   the   accused <\/p>\n
     harassed deceased Chandrabhagabai and in what manner, and   a <\/p>\n
     bare  statement  in  respect  thereof   without  assigning  any  specific <\/p>\n
     role to each of the accused therein, would create suspicion about <\/p>\n
     the   alleged   ill-treatment   and   harassment   to   the   victim,   at   the <\/p>\n
     hands of her husband and in-laws.\n<\/p>\n
     25.    Coming   to   the   deposition   of   PW-4   Ramchandra   Maroti <\/p>\n
     Choure, brother of the victim Chandrabhagabai, it is seen from his <\/p>\n
     evidence   that   Chandrabhagabai   had   married   with   accused   No.1 <\/p>\n
     Limbraj, about 8 to 9 years prior to the incident and she had two <\/p>\n
     sons and a daughter out of the said wedlock, but the daughter was <\/p>\n
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\n                                              20                              criapl-36.01<\/p>\n
     not alive.  He further stated that Chandrabhagabai was residing in <\/p>\n
     her matrimonial house  since marriage, and she used to meet him <\/p>\n
     whenever   she   visited   his   house,     on   account   of   festivals.       He <\/p>\n
     further stated that Chandrabhagabai used to complain to him that <\/p>\n
     she was treated with cruelty and was compelled to do hard work in <\/p>\n
     the   field   and   also   cleaning   of   cattle-shed   and   she   was   being <\/p>\n
     assaulted and kept starved.   He further stated that,   he himself <\/p>\n
     and   his   parents   and   brother   persuaded   the   in-laws   of <\/p>\n
     Chandrabhagabai   not   to   ill-treat   her,   but   they   did   not   pay   any <\/p>\n
     heed,   and continued to give illtreatment to her.   He also stated <\/p>\n
     that   at   the   time   of   Diwali,     preceding   the   incident, <\/p>\n
     Chandrabhagabai     repeated   to   them   about   the   harassment   and <\/p>\n
     insistence   by   her   in-laws   to   meet   the   demand   of   Rs.25,000\/= <\/p>\n
     required   for   the   flour   mill.   Thereafter,   they   persuaded   her   and <\/p>\n
     assured to meet the demand within one year.\n<\/p>\n
     26.    During   the   course   of   cross   examination,   the   witness   has <\/p>\n
     stated that the ill-treatment at the hands of in-laws of the victim <\/p>\n
     started three years after the marriage.   He also stated that the <\/p>\n
     accused   ran flour  mill  for  about   4  to  5  years   after  marriage  of <\/p>\n
     Chandrabhagabai.  According to him, the said flour mill was not in <\/p>\n
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\n                                              21                              criapl-36.01<\/p>\n
     working condition. Pertinently, he stated that the police recorded <\/p>\n
     his statement, but the very disclosure by Chandrabhagabai about <\/p>\n
     demand   of   amount   of   Rs.25,000\/=   at   the   time   of   Diwali   and <\/p>\n
     assurance by witness and his parents to fulfill the same within one <\/p>\n
     year, come under the omission.\n<\/p>\n
     27.    Considering   the   testimony   of   PW-4   Ramchandra,   it   is <\/p>\n
     apparent that   there is vital omission, as mentioned hereinabove <\/p>\n
     and   he   has   made   general   statement   in   respect   of   alleged <\/p>\n
     harassment and illtreatment to Chandrabhagabai,  at the hands of <\/p>\n
     her in-laws,  and no specific role has been attributed by him to any <\/p>\n
     of   the   accused   in   respect   of   the   alleged   illtreatment   and <\/p>\n
     harassment, and therefore, in the absence of the same,   liability <\/p>\n
     upon   each   of   the   accused   cannot   be   fixed   in   respect   of   their <\/p>\n
     participation in the alleged ill-treatement and harassment to victim <\/p>\n
     Chandrabhagabai.\n<\/p>\n
     28.    That   takes   me   to   deposition   of   PW-10   Shrimant   Shankar <\/p>\n
     Dhakne,  who  stated  that  while  he  was  returning back from his <\/p>\n
     field, he noticed that Chandrabhagabai was lying in front of cattle <\/p>\n
     shed of accused No.3 Vishnu.  He gave call to her, but she did not <\/p>\n
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\n                                             22                              criapl-36.01<\/p>\n
     respond and he found that she had vomited due to consumption of <\/p>\n
     poisonous   substance,   and   hence,   she   was   taken   to   Sarula   and <\/p>\n
     thereafter   she   was   shifted   to   Civil   Hospital,   Beed,   where   she <\/p>\n
     breathed last.\n<\/p>\n
     29.    PW-10   Shrimant   was   declared   hostile,   but   nothing   much <\/p>\n
     beneficial to the case of the prosecution could be elicited from his <\/p>\n
     cross examination conducted by the learned A.P.P.  On the contrary, <\/p>\n
     in   the   cross   examination   conducted   by   learned   counsel   for   the <\/p>\n
     accused, this witness stated that Chandrabhagabai   had a kidney <\/p>\n
     trouble and swelling, and was suffering from illness ccontinuously <\/p>\n
     for 2-3 years prior to her demise, and the accused used to take her <\/p>\n
     for   medical   treatment,   regularly.     He   further   stated   that <\/p>\n
     Chandrabhagabai   had   attempted   to   commit   suicide,     about   12 <\/p>\n
     months prior to her death.\n<\/p>\n
     30.    Accordingly,   it   is   apparent   from   the   testimony   of   witness <\/p>\n
     Shirmant  that victim Chandrabhagabai was suffering from illness <\/p>\n
     continuously for 2-3 years due to kidney problem and swelling.  It <\/p>\n
     is also material to note that she had attempted to commit suicide <\/p>\n
     by consuming poisonous substance, about 12 months prior to her <\/p>\n
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\n                                              23                              criapl-36.01<\/p>\n
     death, and  hence,  there  appears  to be tendency  of  committal of <\/p>\n
     suicide, on the part of the victim Chandrabhagabai.\n<\/p>\n
     31.    That takes me to testimony of PW-6 Dr. Kailash Hiraman <\/p>\n
     Dudhal,   who   was   the   Medical   Officer   and   who   performed   post <\/p>\n
     mortem   on   the   dead   body   of   the   victim   Chandrabhagabai,   on <\/p>\n
     26.2.1999 between 5.35 p.m. to 6.35 p.m. and stated that no ante <\/p>\n
     mortem   injuries   were   noticed   on   the   dead   body,   and   there   was <\/p>\n
     kerosene like smell to the stomach   contents.   In his opinion, the <\/p>\n
     cause   of   death   was   “cardio   respiratory   failure   due   to   asphyxia, <\/p>\n
     secondary   to   insecticide   poisoning.”.     The   witness   stated   that <\/p>\n
     viscera   was   preserved   and   that   the   same   is   still   lying   in   the <\/p>\n
     mortuary room and is not collected by the concerned police station.\n<\/p>\n
     Therefore, according to the witness, no final report of analysis of <\/p>\n
     C.A. was received.  He also stated that even they did not inform or <\/p>\n
     remind the concerned police station, to collect the viscera.  Witness <\/p>\n
     was unable to assign any reason, why reminder was not issued to <\/p>\n
     the police station, till date.   He further stated that even in the <\/p>\n
     absence of report of analysis of viscera, his final opinion is that the <\/p>\n
     cause of death of Chandrabhagabai was “cardio respiratory failure <\/p>\n
     due to asphyxia, secondary to insecticide poisoning.”.  Post mortem <\/p>\n
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\n                                               24                               criapl-36.01<\/p>\n
     notes are marked as Exhibit 29.  According to him, cause of death <\/p>\n
     of the victim was consumption of poisonous insecticide.\n<\/p>\n
     32.    In the cross examination, PW-6 Dr. Kailash Dudhal stated <\/p>\n
     that the provisional certificate of cause of death, has been issued to <\/p>\n
     the   investigating   agency,   prior   to   collection   of   the   post   mortem <\/p>\n
     report.     He   further   stated   that   it   is   correct   that   even   in   the <\/p>\n
     provisional certificate of cause of death, it has been mentioned that <\/p>\n
     viscera has been preserved, and according to him, it was the duty <\/p>\n
     of the investigating officer or the concerned police station to collect <\/p>\n
     it,  for sending the same to Chemical Analyzer for analysis purpose.\n<\/p>\n
     33.    Thus, it is apparent from the testimony of PW-6 Dr. Kailash <\/p>\n
     Dudhal   that   he   conducted   post   mortem   on   the   dead   body   of <\/p>\n
     Chandrabhagabai, and according to him, cause of her death   was <\/p>\n
     “cardio respiratory failure due to asphyxia, secondary to insecticide <\/p>\n
     poisoning.”.     It   is   curious   to   note   that   although   viscera   was <\/p>\n
     preserved,   police did not collect and send the same to chemical <\/p>\n
     analyzer for analysis purpose, which amounts to vital lacuna in the <\/p>\n
     prosecution case.\n<\/p>\n
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                                            25                              criapl-36.01<\/p>\n
     34.    On the background of aforesaid evidence, learned counsel for <\/p>\n
     the appellants canvassed that there is inordinate delay  in lodging <\/p>\n
     the FIR, inasmuch as the alleged incident is said to have taken <\/p>\n
     place on 26.2.1999, whereas the FIR came to be lodged on 1.3.1999 <\/p>\n
     i.e. three days after the alleged incident, and the prosecution has <\/p>\n
     not given any plausible and convincing   explanation therefor, and <\/p>\n
     therefore,   said   delay   hampers   the   prosecution   case,   and   hence, <\/p>\n
     possibility   cannot   be   ruled   out   that   the   FIR   was   lodged   by <\/p>\n
     complainant PW-8 Suryakant   in consultation with the relatives <\/p>\n
     and after concocting a false story against the accused persons.\n<\/p>\n
     35.    It is also canvassed by the learned counsel for the appellants-\n<\/p>\n
     accused that the witnesses examined by the prosecution are the <\/p>\n
     close relatives of the victim Chandrabhagabai and the prosecution <\/p>\n
     has   failed   to   examine   independent   witnesses   in   respect   of   the <\/p>\n
     alleged cruelty to which the victim was  allegedly subjected, and <\/p>\n
     therefore,   the   conviction   against   the   accused   persons   cannot   be <\/p>\n
     based on the testimonies of close relatives of the victim, they being <\/p>\n
     interested   witnesses.     According   to   learned   counsel   for   the <\/p>\n
     appellants-accused,   evidence   of   PW-8   Suryakant,   is   hearsay <\/p>\n
     evidence, since he has no personal knowledge and although mother <\/p>\n
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\n                                              26                              criapl-36.01<\/p>\n
     of the victim, namely, Janabai reached to village Sarula, first in <\/p>\n
     point of time, and   her statement under Section 161 of Code of <\/p>\n
     Criminal   Procedure   was   recorded,   and   although   complainant <\/p>\n
     Suryakant   was   informed   by     her   about   the   incident,   still <\/p>\n
     prosecution has chosen not to examine her for the reasons best-\n<\/p>\n
     known   to   it.     Moreover,   it   is   also   submitted   that   the   alleged <\/p>\n
     demand of Rs. 25,000\/=  made to Chandrabhagabai, for installation <\/p>\n
     of flour mill, was about one year prior to the incident and there is <\/p>\n
     no close proximity between the alleged demand and illtreatment <\/p>\n
     due to non fulfillment thereof and alleged committal of suicide by <\/p>\n
     the victim.\n<\/p>\n
     36.    Moreover,   it   is   further   submitted   that   it   is   not   the <\/p>\n
     prosecution   case   that   there   was   any   recent\/immediate   glaring <\/p>\n
     unlawful demand by the accused persons to the victim prior to the <\/p>\n
     date of incident, resulting into committal of suicide by the victim on <\/p>\n
     the date of the incident, and therefore, it is canvassed that there <\/p>\n
     was no immediate incitement to the victim, leading to committal of <\/p>\n
     suicide by her.\n<\/p>\n
     37.    Further, it is also canvassed by the learned counsel for the <\/p>\n
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\n                                             27                              criapl-36.01<\/p>\n
     appellants that about 8 to 9 years had passed from the date of <\/p>\n
     marriage of the victim Chandrabhagabai with accused No.1, and <\/p>\n
     even three children were begotten out of the said wedlock,   and <\/p>\n
     considering the said passage of time after the marriage and also <\/p>\n
     birth of children during that period, it is not conceivable that the <\/p>\n
     victim was subjected to cruelty of such a nature which drove her to <\/p>\n
     commit   suicide.     Moreover,   it   is   also   submitted   by   the   learned <\/p>\n
     counsel for the appellants-accused that  even there was not a single <\/p>\n
     complaint of harassment\/illtreatment by the victim or her parental <\/p>\n
     relatives against the accused persons since her marriage till the <\/p>\n
     date of incident, and asking to do household work, or work at own <\/p>\n
     field, cannot be termed as “cruelty”.\n<\/p>\n
     38.    It is also argued by the learned counsel for the appellants <\/p>\n
     that although the viscera of the victim was preserved at the time of <\/p>\n
     post mortem, it is curious to note that the same was not forwarded <\/p>\n
     to   the   chemical   analyzer’s   office     for   examination   purpose,   and <\/p>\n
     therefore, there is no final report in respect of cause of death of the <\/p>\n
     victim, and the said lacuna sustains fatal blow to the case of the <\/p>\n
     prosecution.     It   is   canvassed   by   the   learned   counsel   for   the <\/p>\n
     appellants-accused that the defence taken by them that the victim <\/p>\n
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\n                                             28                              criapl-36.01<\/p>\n
     Chandrabhagabai might have committed suicide due to intolerable <\/p>\n
     trouble of disease of kidney,  cannot be overlooked since the accused <\/p>\n
     have probabilized the same, as PW-10 Shrimant Dhakne has also <\/p>\n
     stated about Chandrabhagabai suffering from said disease.\n<\/p>\n
     39.    Besides,   it   is   further   canvassed   that   the   prosecution   has <\/p>\n
     failed to prove and establish the very ingredients of Section 498-A <\/p>\n
     of IPC, such as, <\/p>\n
            (i)    Willful conduct of the accused driving the victim to
\n                   commit suicide, or<\/p>\n
            (ii)   cause grave injury or danger to life, limb or health of
\n                   the woman, or<\/p>\n
            (iii) harassment of the woman with a view to coercing her <\/p>\n
                  or   any   person   related   to   her   to   meet   any   unlawful
\n                  demand   for   any   property   or   valuable   security,   on
\n                  account of failure by her or any person related to her to <\/p>\n
                  meet such demand.\n<\/p>\n
     Accordingly,   it   is   submitted   that   the   prosecution   has   failed   to <\/p>\n
     establish   nexus   between   the   alleged   cruelty   and   suicide   by   the <\/p>\n
     victim Chandrabhagabai.\n<\/p>\n
     40.    Moreover, it is also canvassed by the learned counsel for the <\/p>\n
     appellants that the ingredients of Section 107 of the IPC, in respect <\/p>\n
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\n                                           29                             criapl-36.01<\/p>\n
     of abetment, namely, <\/p>\n
           (i)    instigate any person to commit an offence, or\n<\/p>\n
           (ii)   engaging in a conspiracy for committing it, or<\/p>\n
           (iii) intentionally aiding a person to commit it;\n<\/p>\n
     are   missing   in   the   present   case,   considering   the   oral   and <\/p>\n
     documentary evidence adduced and produced by the prosecution.\n<\/p>\n
     Hence, learned counsel for the appellants-accused urged that the <\/p>\n
     prosecution has failed to prove and establish the charges levelled <\/p>\n
     against   the   accused   persons,   beyond   reasonable   doubt,   and <\/p>\n
     therefore, the accused deserve to be acquitted of the offence with <\/p>\n
     which they were charged, convicted and sentenced, by allowing the <\/p>\n
     present appeal.\n<\/p>\n
     41.   Shri S.P. Katneshwarkar, learned Counsel for the appellants-\n<\/p>\n
     accused,  in  support  of  his  contention that  there  was  no  cruelty, <\/p>\n
     illtreatment   or   harassment   to   the   deceased   Chandrabhagabai   or <\/p>\n
     abetment by accused persons to commit  suicide by her, relied upon <\/p>\n
     couple of judicial pronouncements.  Firstly, he relied on the case of <\/p>\n
     Deepak s\/o Bhimrao vs. State of Mah. 2004 (2) Mh.L.J. 987, <\/p>\n
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\n                                              30                              criapl-36.01<\/p>\n
     more particularly on para 14 thereof which reads as follows;\n<\/p>\n
           “14. There is no doubt that; the concept of cruelty and its
\n           effect varies from individual to individual and it also depends
\n           on the social and economic status to which the parties belong.\n<\/p><\/blockquote>\n
           It   is   also   true   that   cruelty   may  not   be   physical   and   even
\n           mental   torture   and   abnormal   behaviour   may   amount   to <\/p>\n
           cruelty,     in   the   instant   case,   the   father   of   deceased   has
\n           spoken   of   complaint;   of   beating   by   Sunita.     However,   as <\/p>\n
           observed above, his evidence is found to be exaggerating and
\n           contradictory to the seizure memo. PW 5 Baby speaks bare <\/p>\n
           minimum on the point of alleged cruelty.  Moreover, she is a
\n           married   sister   of   deceased   Sunita   and   is   not   expected   to
\n           possess knowledge in respect of alleged harassment to Sunita.\n<\/p><\/blockquote>\n
           On the point of cruelty, evidence of PW 6 Vimal can also not <\/p>\n
           be   accepted.   In   answer   to   a   question,   she   has   deposed   in
\n           cross-examination that Sunita had gone to Ghatanji prior to
\n           2-3   days   of   the   incident.     However,   according   to   PW   4 <\/p>\n
           Narayan, father of the deceased, the incident occurred on the
\n           day on which Sunita returned from Ghatanji, place of her
\n           husband.     Thus,   in   absent   of   direct   oral   or   documentary <\/p>\n
           evidence,   the   prosecution   case   cannot   be   accepted   on   the
\n           basis of hear-say evidence.”\n<\/p><\/blockquote>\n
     42.   Learned Counsel for the appellants, also relied upon Kishori <\/p>\n
     Lal vs. State of M.P. 2007 DGL (Soft) 706 , more so on paras. 6 <\/p>\n
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\n                                             31                              criapl-36.01<\/p>\n
     and 7 which read thus;\n<\/p>\n
          “6.    Section   107   IPC   defines   abetment   of   a   thing.     The
\n          offence   of   abetment   is   a   separate   and   distinct   offence <\/p>\n
          provided in the Act as an offence.  A person, abets the doing
\n          of a thing when (1) he instigates any person to do that thing;
\n          or   (2)   engages   with   one   or   more   other   persons   in   any <\/p>\n
          conspiracy   for   the   doing   of   that   thing;   or   (3)   intentionally <\/p>\n
          aids,   by   act   or   illegal   omission,   the   doing   of   that   thing.
\n          These things are essential to complete abetment as a crime.\n<\/p><\/blockquote>\n
          The word “instigate” literally means to provoke, incite, urge
\n          on   or   bring   about   by   persuasion   to   do   any   thing.     The
\n          abetment may be by instigation, conspiracy or intentional aid, <\/p>\n
          as provided in the three clauses of Section 107. Section 109
\n          provides that if the act abetted is committed in consequence <\/p>\n
          of abetment and there is no provision for the punishment of
\n          such abetment, then the offender is to be punished with the <\/p>\n
          punishment provided for the original of offence. “Abetted” in
\n          Section 109 means the specific offence abetted. Therefore, the
\n          offence for the abetment of which a person is charged with
\n          the abetment is normally linked with the proved offence.\n<\/p><\/blockquote>\n
          7.     In cases of alleged abetment of suicide there must be
\n          proof   of   direct   or   indirect   acts   of   incitement   to   the
\n          commission   of   suicide.     The   mere   fact   that   the   husband
\n          treated   the   deceased-wife   with  cruelty  is   not   enough.  [See <\/p>\n
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\n                                              32                              criapl-36.01<\/p>\n
           Mahinder   Singh   v.   State   of   M.P.(1995   AIR   SCW   4570)   ].
\n           Merely on the allegation of harassment, conviction in terms <\/p>\n
           of   Section   306   IPC   is   not   sustainable.     There   is   ample <\/p>\n
           evidence on record that the deceased was disturbed because
\n           she had not given birth to any child.  PWs. 8, 10 and 11 have
\n           categorically stated that the deceased was disappointed due <\/p>\n
           to the said fact and her failure to beget a child and she was
\n           upset due to this. ”\n<\/p><\/blockquote>\n
     43.   Learned Counsel for the appellants, also relied upon the case <\/p>\n
     of Baban vs. State of Mah. 2007 (Supp) Bom.C.R. 536, on para <\/p>\n
     9,   wherein   observations   of   the   Hon’ble   Apex   Court   in  “Girdhar <\/p>\n
     Shankar   Tayade   vs.   State   of   Maha.   1,   2002   DGLS   471,   are <\/p>\n
     reproduced, and also on para 27, which read as under:\n<\/p>\n
           “9.    The Apex Court in (“Girdhar Shankar Tayade vs. State
\n           of Maharashtra”)  2002 DGLS 471 …………………………………….\n<\/p><\/blockquote>\n
           has   explained   the   purpose   and   meaning   of   expression
\n           “cruelty”   as   defined   in   section   498-A   of   the   Indian   Penal
\n           Code.  The basic purport of the statutory provision is to avoid
\n           “cruelty” as defined by attributing statutory meaning thereto. <\/p><\/blockquote>\n
           The word “cruelty”   has to be understood in the context of
\n           two   explanations   enumerated   under   section   498-A   of   the
\n           Indian Penal Code.   The first explanation (a) involves three
\n           specific   situations   to   wit   :   (i)   willful   conduct   which   would
\n           drive the woman to commit the suicide or (ii) to cause grave <\/p>\n
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\n                                       33                              criapl-36.01<\/p>\n
     injury to herself or (iii) danger to life, limb or health.  Such
\n     willful conduct may be mental and or physical as the case <\/p>\n
     may be.  Another explanation (b) covers coercive harassment <\/p>\n
     on account of non-fulfillment of unlawful demand.  It is well
\n     settled that the charges of matrimonial cruelty and that of
\n     abetment to the suicide of a married woman are distinct. Still <\/p>\n
     however,   when   both   the   charged   are   levelled   then   the
\n     prosecution   must   establish   nexus   between   cruelty   and   the
\n     suicide of the married woman.\n<\/p>\n
     27.<\/p>\n
            The   recitals   of   the   said   Chitthi   (Article-8)   have   not
\n     been duly proved. The handwriting expert did not corroborate <\/p>\n
     the case of prosecution regarding identity of the handwriting
\n     of   the   Chitthi   (Article-8).     Even   assuming   that   there   was
\n     some  quarrel in  the  relevant  morning, which  could  not  be <\/p>\n
     tolerated by deceased Sau. Aruna, yet that by itself can not
\n     be regarded as the act of “cruelty”   within the meaning of <\/p>\n
     section   498-A   of   the   Indian   Penal   Code.     This   Court   in
\n     (“Ravindra   Pyarelal   Bidan   and   others   vs.   State   of <\/p>\n
     Maharashtra<\/a>“) 1993 Cri.L.J. 3019 has held that the cruelty
\n     established has to be of such gravity that was likely to drive
\n     a  woman  to   commit   suicide.   It   is   further   observed  that   if
\n     suicide is established then   it has to be established that it <\/p>\n
     was occasioned on account of cruelty which was of sufficient
\n     gravity so as to lead a reasonable person placed in similar
\n     circumstances to commit suicide.  This Court expressed view
\n     that   mere   harassment   by   itself   can   not   be   regarded   as
\n     “cruelty”.   The harassment has to be with a definite object, <\/p>\n
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\n                                             34                              criapl-36.01<\/p>\n
           namely, to coerce the woman or any person related to her to
\n           meet any unlawful demand. ”\n<\/p>\n
     44.   Lastly, learned Counsel for the appellants, relied upon the
\n     case of Supadu vs. State of Mah. [2006(2) Mh.L.J. (Cri.) 888], <\/p>\n
     especially on para 30 thereof which reads :-\n<\/p>\n
           “30. So far as the question of sentence is concerned, it may
\n           be seen that appellant No.1 Supadu was aged about 65 years <\/p>\n
           and appellant No. 2 Sarubai was aged about 58 years at the
\n           relevant time.  A period of about 13 years has elapsed after <\/p>\n
           the impugned order of conviction and sentence.  By now, the
\n           appellant No.1-Supadu has become old aged person of about
\n           78   years   and   appellant   No.2   too   has   become   quite   old   of <\/p>\n
           about 71 years. In view of their advance age, some leniency <\/p>\n
           will   have   to   be   shown   to   them.     The   impugned   order   of
\n           sentence   will   have   to   be   modified,   in   keeping   with   the
\n           circumstances and age of the appellants No. 1 and 2, though <\/p>\n
           no modification is required insofar as the sentence awarded
\n           to appellant No.3-Baban is concerned.)”\n<\/p><\/blockquote>\n
     45.   Learned   A.P.P.   Shri   V.G.   Shelke   for   the   respondent-State <\/p>\n
     canvassed   that   the   testimonies   of   PW-3   Kesharbai,   PW-4 <\/p>\n
     Ramchandra, PW-7 Gorakh, PW-8 Suryakant and PW-11 Maroti, <\/p>\n
     so also PW-2 Sajjanbai, are consistent   in respect of illtreatment <\/p>\n
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\n                                              35                              criapl-36.01<\/p>\n
     and   harassment   given   by   the   accused   persons   to   victim <\/p>\n
     Chandrabhagabai, due to non fulfillment of their demand for Rs.\n<\/p>\n
     25,000\/= for flour mill, by her and her parents, which connect the <\/p>\n
     accused   persons   with   the   crime.     It   is   further   canvassed   that <\/p>\n
     although   the   aforesaid   witnesses   are   the   family   members\/close <\/p>\n
     relatives of the victim, they have deposed fairly and put forth truth <\/p>\n
     before   the   court,   and   therefore,   their   testimonies   deserve   to   be <\/p>\n
     believed and are required to be accepted.  It is also  canvassed that <\/p>\n
     since the victim Chandrabhagabai was subjected to cruelty by the <\/p>\n
     accused   persons   in   the   house,   there   cannot   be   any   independent <\/p>\n
     witness,   and   therefore,   the   prosecution   could   not   examine   any <\/p>\n
     independent   witness   to   the   same,   and   absence   of   independent <\/p>\n
     witness cannot be construed as flaw in the prosecution case.\n<\/p>\n
     46.    As   regards   delay   of   three   days   caused   in   filing   the   FIR, <\/p>\n
     learned APP submitted that the prosecution has explained the said <\/p>\n
     delay,   properly   and   convincingly,   in   the   testimony   of   PW-8 <\/p>\n
     Suryakant   i.e.   the   complainant,   since,   initially   although   he   had <\/p>\n
     gone to police out post, Nadurghat, for lodging the complaint,   he <\/p>\n
     was advised to lodge the same with   police station at Kaij, which <\/p>\n
     consumed time, and accordingly, FIR was lodged on 1.3.1999 with <\/p>\n
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\n                                             36                              criapl-36.01<\/p>\n
     Police Station, Kaij, and hence, the said delay cannot be said to be <\/p>\n
     fatal to prosecution case, as the  same is properly explained.\n<\/p>\n
     47.    Learned A.P.P. further submitted that the learned trial court <\/p>\n
     has scrutinized and assessed the evidence in proper perspective and <\/p>\n
     rightly sentenced the accused persons,   and there are no glaring <\/p>\n
     defects or infirmities so as to interfere  in the finding recorded by <\/p>\n
     the trial court,  warranting reversal thereof, and accordingly, urged <\/p>\n
     that the present appeal bears no substance and same deserves to <\/p>\n
     be dismissed.\n<\/p>\n
     48.    I   have   perused   the   oral,   documentary,   as   well   as   medical <\/p>\n
     evidence adduced and produced on record by the prosecution, as <\/p>\n
     well   as   perused   the   impugned   judgment   and   order   dated <\/p>\n
     29.12.2000, and also considered the submissions advanced by the <\/p>\n
     learned counsel for the parties, anxiously, and perused the judicial <\/p>\n
     pronouncements  cited by the learned counsel for the  appellants-\n<\/p>\n
     accused,   carefully,   and   I   am   inclined   to   accept   the   submissions <\/p>\n
     advanced by the learned counsel for the appellants-accused, since <\/p>\n
     there are  infirmities, discrepancies and lacunae in the prosecution <\/p>\n
     case, and the prosecution has failed to prove and establish the guilt <\/p>\n
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\n                                             37                              criapl-36.01<\/p>\n
     of   the   appellants-accused,   beyond   reasonable   doubt,   since,   the <\/p>\n
     prosecution witnesses, and more particularly who are the family <\/p>\n
     members and close relatives of the victim Chandrabhagabai, have <\/p>\n
     not attributed specific role to each of the accused persons in respect <\/p>\n
     of the alleged harassment and ill-treatment or cruelty, to which the <\/p>\n
     victim Chandrabhagabai was allegedly subjected by them.  Further, <\/p>\n
     the prosecution has not examined any independent  witness to the <\/p>\n
     alleged   illtreatment\/harassment   to   victim   Chandrabhagabai,   nor <\/p>\n
     examined at least any neighbour,   who could have thrown some <\/p>\n
     light on the alleged illtreatment to victim Chandrabhagabai.\n<\/p>\n
     49.    Moreover,   although   Janabai,   mother   of   the   victim <\/p>\n
     Chandrabhagabai and PW-8  Suryakant, reached at Sarula, first in <\/p>\n
     point   of   time   and   who   was   the   source   of   information   to   PW-8 <\/p>\n
     Suryakant and whose statement under Section 161 of the Code of <\/p>\n
     Criminal Procedure was recorded, is withheld by the prosecution, <\/p>\n
     for   the   reasons   best-known   to   it,   and   therefore,   the   submission <\/p>\n
     advanced by the learned counsel for the appellants-accused that the <\/p>\n
     testimony of the complainant PW-8 Suryakant is hear-say evidence, <\/p>\n
     cannot be overlooked.   Moreover, sight also cannot be lost of the <\/p>\n
     aspect   that   the   prosecution   witnesses   have   consistently   deposed <\/p>\n
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\n                                             38                              criapl-36.01<\/p>\n
     that     victim   Chandrabhagabai   was   meted   out   harassment\/ill-\n<\/p>\n
     treatment by accused persons on the ground that she did not know <\/p>\n
     cooking\/domestic work, and it is also pertinent to note that it has <\/p>\n
     come in the evidence that the alleged demand by accused persons <\/p>\n
     for Rs.25,000\/= for installation of flour mill, was made about one <\/p>\n
     year   prior   to   the   incident,   and   as   such,   there   was   no   close <\/p>\n
     proximity   between   the   alleged   demand   of   said   amount   and   the <\/p>\n
     alleged   illtreatment\/harassment   to   the   victim,   due   to   non <\/p>\n
     fulfillment   thereof,   and   consequently;   with   the   alleged   suicide <\/p>\n
     committed by the victim, and the prosecution has apparently failed <\/p>\n
     to establish nexus among the said vital aspects. Moreover, it is not <\/p>\n
     the case of the prosecution that there was any recent\/immediate <\/p>\n
     glaring   incident   or   unlawful   demand   by   accused   to   victim <\/p>\n
     Chandrabhagabai,   resulting   into   incitement   to   her   to   commit <\/p>\n
     suicide.\n<\/p>\n
     50.    Besides that, the fact cannot be ignored that almost 8 to 9 <\/p>\n
     years had passed since marriage of victim Chandrabhagabai with <\/p>\n
     accused No.1 Limbraj and even three children were begotten out of <\/p>\n
     the said wedlock,   and considering the said passage of time after <\/p>\n
     the marriage and birth of three children, it is not conceivable that <\/p>\n
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\n                                             39                              criapl-36.01<\/p>\n
     she  was  subjected  to  such a  cruelty which  drove  her  to  commit <\/p>\n
     suicide. It is also material to note that   there was not a single <\/p>\n
     complaint of harassment\/illtreatment,  by victim Chandrabhagabai <\/p>\n
     herself   or  by  her   parental   relatives   against   the   accused   persons <\/p>\n
     since last 8 to 9 years after her marriage till the date of the alleged <\/p>\n
     incident,  and merely asking her to do household work or work at <\/p>\n
     own   field   cannot   be   termed   as   “cruelty”   as   contemplated   under <\/p>\n
     Section 498-A of IPC.\n<\/p>\n
     51.    Moreover,   the   chain   of   the   prosecution   case   is   also   not <\/p>\n
     complete, since although viscera of the deceased  Chandrabhagabai <\/p>\n
     was preserved at the time of post mortem, it was not sent to the <\/p>\n
     chemical analyzer  for examination purpose, and therefore, there is <\/p>\n
     no C.A. report in that respect, and consequently; no final report <\/p>\n
     regarding cause of death  of victim Chandrabhagabai, is on record, <\/p>\n
     and the same   gives fatal blow   to the case of the prosecution.\n<\/p>\n
     Hence, the defence taken by the accused persons that the victim <\/p>\n
     Chandrabhagabai might have committed suicide due to intolerable <\/p>\n
     trouble of kidney disease, which is apparently supported by PW-10 <\/p>\n
     Shrimant Dhakne in his testimony, also cannot be ignored , since <\/p>\n
     the accused have probabilized the said defence.\n<\/p>\n
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                                             40                              criapl-36.01<\/p>\n
     52.    In   substance,   the   prosecution   has   failed   to   prove   and <\/p>\n
     establish the very ingredients of section 498-A of IPC, and also <\/p>\n
     failed   to   establish   nexus   between   the   alleged   cruelty   and   the <\/p>\n
     suicide   committed   by   Chandrabhagabai,   to   connect   the   accused <\/p>\n
     persons   therewith,   and   consequently;   with   the   alleged   crime.\n<\/p>\n
     Moreover, having comprehensive view of the matter and considering <\/p>\n
     the   totality   of   the   testimonies   of   prosecution   witnesses,   the <\/p>\n
     ingredients of Section 107 of IPC in respect of abetment, such as, <\/p>\n
             (i) instigate any person to commit an offence,  or\n<\/p>\n
            (ii) engaging in a conspiracy for committing it; or<\/p>\n
            (iii) intentionally aiding a person to commit  it;\n<\/p>\n
     are absent in the present case and on that count also, prosecution <\/p>\n
     case fails.\n<\/p>\n
     53.    Apart from that, there is also delay of three days in lodging <\/p>\n
     the FIR, since the alleged incident occurred on 26.2.1999, whereas <\/p>\n
     the   FIR     was   lodged   on   1.3.1999.   In   the   said   context,   the <\/p>\n
     prosecution tried to give explanation that the complainant PW-8 <\/p>\n
     Suryakant has stated in his deposition that initially he had gone to <\/p>\n
     Police   Out   Post,   Nandurghat,   but   he   was   advised   to   lodge   the <\/p>\n
     complaint   with   Police   Station,   Kaij,   which   consumed   time,   and <\/p>\n
     accordingly; he lodged FIR with Kaij Police Station, on 1.3.1999.\n<\/p>\n
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                                            41                             criapl-36.01<\/p>\n
     However, it is worth noting that complainant PW-8 Suryakant was <\/p>\n
     advised on 27.2.1999 to lodge the FIR with Police Station, Kaij, and <\/p>\n
     hence, he could have approached Kaij Police Station on the same <\/p>\n
     day or at least on next day i.e. 27.2.1999, but admittedly, he did not <\/p>\n
     approach Kaij Police Station either on 27.2.1999 or on 28.2.1999, as <\/p>\n
     admittedly, he approached Kaij Police Station, only on 1.3.1999 for <\/p>\n
     which  no   justifiable  reason  is   coming  forward,  which  apparently <\/p>\n
     gave room to concoction and implication of the appellants in the <\/p>\n
     present case, falsely, and hence, the said delay is fatal to the case <\/p>\n
     of the prosecution and hampers its case, and the explanation given <\/p>\n
     by prosecution in that respect, is not plausible and convincing.\n<\/p>\n
     54.   In   the   circumstances,   having   comprehensive   view   of   the <\/p>\n
     matter,   and   also   considering   judicial   pronouncements   cited   by <\/p>\n
     learned counsel for appellants in respect of Section 498 and Section <\/p>\n
     306 of IPC, it is amply clear that the prosecution has failed to bring <\/p>\n
     the  guilt at home against  the accused persons,  and has failed to <\/p>\n
     prove   and   establish   the   charges   levelled   against   them,   beyond <\/p>\n
     reasonable doubt. Consequently, convictions and sentences inflicted <\/p>\n
     upon the appellants deserve to be quashed and set aside and they <\/p>\n
     deserve to be acquitted of the said charges, by allowing present appeal.\n<\/p>\n
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                                            42                              criapl-36.01<\/p>\n
     55.   In the result, present appeal is allowed, and the judgment <\/p>\n
     and order dated 29.12.2000, rendered by the learned II Additional <\/p>\n
     Sessions   Judge,   Ambajogai,   in   Sessions   Case   No.   59   of   1999, <\/p>\n
     thereby convicting and sentencing the present appellants-original <\/p>\n
     accused for the offences punishable under Sections 498-A and 306 <\/p>\n
     read with Section 34 of Indian Penal Code, with which they were <\/p>\n
     charged and tried, is quashed and set aside, and the appellants-\n<\/p>\n
     accused  stand acquitted of the said offences.  Fine amount, if any, <\/p>\n
     paid by the appellants-accused,  be refunded to them, and their bail <\/p>\n
     bonds stand cancelled.\n<\/p>\n
     pnd\/criapl-36.01                                  (Shrihari P. Davare,  J.)\n   \n\n\n\n                                  \n\n\n\n\n\n                                                  \n\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 17:10:06 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Limbraj S\/I Vishnu Dhakane vs The State Of Maharashtra on 6 April, 2011 Bench: Shrihari P. Davare 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-145402","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nLimbraj S\/I Vishnu Dhakane vs The State Of Maharashtra on 6 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/limbraj-si-vishnu-dhakane-vs-the-state-of-maharashtra-on-6-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Limbraj S\/I Vishnu Dhakane vs The State Of Maharashtra on 6 April, 2011 - 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