High Court
Legal Reasoning
CriAppeal-169-2002-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 169 OF 2002Kailash s/o Venkati MoralwarAge 28 yrs, Occ. Business,R/o Juna Kautha, Tq. & Dist. Nanded.… AppellantVersusThe State of Maharashtra… Respondent…..Mr. Akash Gade, Advocate for the Appellant (appointed through HighCourt Legal Service Sub-Committee].Mr. S. M. Ganachari, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 06.09.2024Pronounced on: 18.09.2024JUDGMENT : 1.Instant appeal is by convict Kailash, husband of deceasedVanmala, who jumped along with her minor daughter in Godavaririver and committed suicide. Therefore, the conviction is for offenceunder Sections 498-A and 306 of the Indian Penal Code [IPC]recorded by learned IInd Adhoc Additional Sessions Judge, Nanded inSessions Case No. 15 of 1997.2.Deceased was married to appellant in 1993. After a period ofsix months, husband and in-laws put up demand of money for CriAppeal-169-2002-2- running shop and for coercing her to meet their demand, theysubjected her to maltreatment. Twice informant father (PW1) met thedemand by paying Rs.5000/-. However, still the demand continued,followed by cruelty. Deceased reiterated the demand and treatmentmeted out to her. Understanding was given through independentpersons to the accused, but they did not mend their ways. On01.10.1996, Vanmala went missing and on 02.10.1996, dead bodiesof Vanmala and her daughter were traced and fetched out of the riverwater. Therefore, father lodged report Exhibit 21, on the basis ofwhich, crime came to be registered and finally, investigated by PW10.Accused husband and in-laws came to be chargesheeted. At the timeof charge, father-in-law expired and therefore, only husband andmother-in-law faced trial before learned IInd Adhoc AdditionalSessions Judge, Nanded vide Sessions Case No. 15 of 1997 for offenceunder Sections 498-A and 306 r/w 34 of IPC. 3.In support of its case, prosecution adduced oral evidence of 10witnesses and also sought reliance on documentary evidence. Defencealso adduced evidence of in all 6 witnesses. After appreciating theevidence adduced by both sides, learned trial court vide judgment andorder dated 16.03.2002, acquitted accused no.3 mother-in-law, butconvicted husband for cruelty and abetment to suicide. Such
Legal Reasoning
CriAppeal-169-2002-3- judgment is the subject matter of appeal before this Court vide instantappeal.SUBMISSIONSOn behalf of the appellant :4.According to learned counsel for the appellant, here,prosecution had miserably failed to establish its case beyondreasonable doubt. He pointed out that there is no evidence, and evenrequired ingredients for attracting Sections 498-A or 306 of IPC arepatently missing in the evidence. However, still learned trial court hasconvicted husband alone and has acquitted accused no.3 i.e. on thesame set of evidence. He pointed out that there are general, vagueand omnibus allegations of cruelty. He pointed out that witnesses arenot consistent. Independent pancha witnesses, though speak aboutinformant giving Rs.5,000/- on two occasions, he submitted that infact it has also come in the evidence of very independent witness thatthey both being in business of grocery shop, had distinct financialtransactions between them. Therefore, such payments cannot beattributed to any demand. Learned counsel submitted that shop ofappellant husband was since much prior to marriage. That, report isout of annoyance. CriAppeal-169-2002-4- 5.He pointed out that defence witnesses, including relatives ofvery informant, speak about cordial relations and happy married life.On the contrary, it is submitted that defence taken in trial court wasthat deceased was upset for not getting admission in 11th standard inthe college of her desire. Therefore, there is possibility of committingsuicide. He further submitted that necessary ingredients for attractingSection 306 of IPC are patently missing. He further submitted thateven there is no evidence to suggest cruelty of such nature thatdeceased was forced to end up her life. No such case is put forth byprosecution, but according to learned counsel, learned trial court hasaccepted the prosecution version and has recorded guilt againsthusband alone. He submitted that learned trial court has merelyappreciated evidence of prosecution and has not dealt and discussedevidence of defence. Consequently, it is his submission that, there isno proper application of mind and rather, there is improperappreciation of available evidence and hence, he prays to allow theappeal by setting aside the impugned judgment.In support of his contentions, learned counsel for the appellantsought reliance on the following rulings : CriAppeal-169-2002-5- 1.Tukaram s/o. Trimbak Aaghav v. State of Maharashtra2024 All.M.R.(Cri.)2107 : 2024 (3) Mh.L.J.(Cri.) 660.2.Naresh Kumar v. State of Haryana (2024) 3 SCC 573.3.Mangat Ram v. State of Haryana (2014) 12 SCC 595.4.Munshi Prasad and others v. State of Bihar (2002) 1 SCC351.On behalf of the respondent-State :6.In answer to above, learned APP would submit that after 6month of marriage, husband and in-laws had put up demand ofmoney for running shop. That, it was sort of capital to run the shop.That, she reported about such demand to her parents. That, herfather-informant twice met the demand in presence of independentwitnesses. Such witnesses are examined by prosecution. Therefore,there is corroboration to the testimony of informant. In spite ofmeeting demand, cruelty and harassment continued. That, it was ofsuch extent that deceased was constrained to commit suicide.Husband and in-laws are solely responsible and therefore, are rightlyheld guilty and hence, he prays not to interfere with the soundjudgment and to dismiss the appeal. CriAppeal-169-2002-6- BRIEF ACCOUNT OF THE EVIDENCE IN TRIAL COURTPW1Informant Kerba (father of deceased) at Exhibit 20 gaveevidence that after marriage of his daughter in 1993, she wasproperly treated for 6 months, but thereafter she wassubjected to cruelty on account of demand of money forcapital to run shop. Twice, through and in presence ofGyanoba Kadam and Govindrao Patil, he met the demand bygiving Rs.5,000/-. However, ill-treatment continued. On01.10.1996, husband came in search of Vanmala. Finally,dead bodies of Vanmala and her daughter were traced inGodavari river. According to him, husband and in-laws areresponsible. PW2Vimalbai, mother of deceased, also stated that for 5 to 6months after marriage, her daughter cohabited properly. Evenshe stated that on account of the demand of money for shop,twice Rs.5,000/- were paid. 20 days prior to the incident,daughter had come and stayed for 10 to 12 days and that timeshe had reported about cruelty and demand. Husband of thiswitness (PW1) had dropped Vanmala and her child to thehouse of accused. 5 to 6 days thereafter, they got news ofVanmala going missing and subsequently, dead bodies weretraced in the river water. According to this witness, herdaughter committed suicide by jumping in river due tointolerable cruelty by husband and in-laws. CriAppeal-169-2002-7- PW3Brother Rajeshwar, in his evidence at Exhibit 33, stated thatafter 6 months of marriage, there was ill-treatment on accountof demand of money. Whenever his sister came for festivals,she reported it. Their father paid Rs.5,000/-. On 01.10.1996,husband came in search of Vanmala. Dead bodies of his sisterand niece were found in Godavari river. According to thiswitness, his sister committed suicide by jumping in river dueto cruelty at the hands of husband and parents-in-law. PW4Dhondiba is the pancha to inquest panchanamas Exhibits 36and 37.PW5 Topaji is the pancha to spot panchanama Exhibit 39.PW6Gyanoba is an acquaintance of PW1. He stated that husbandof Vanmala went on raising demands of money. 5 to 6 yearsback, he had accompanied Kerba (PW1) to Kautha to meetdaughter and there, Kerba gave Rs.5,000/- to Venkati (father-in-law of deceased Vanmala). He claims that he persuadedVenkati to lead happy life and to treat daughter of Kerbaproperly.PW7Sister of deceased, namely, Shobha, testified that there wascruelty and ill-treatment to her sister on account of demand.Her sister had sent letter Exhibit 42 regarding ill-treatmentand demand.PW8Rajendra Kagne is the autopsy doctor, who conductedpostmortem on dead bodies of Vanmala and her daughter. CriAppeal-169-2002-8- PW9Govindrao, an acquaintance of informant, stated that he hadbeen to the house of Venkati with Kerba. That time, informantKerba gave Rs.5,000/- to Venkati. He further stated that theyhad some money transactions.PW10P.I. Rathod is the Investigating Officer.WITNESSES ON BEHALF OF THE DEFENCEDW1Devidas is the nephew of informant. He, in his evidence atExhibit 57, stated that Vanmala was married to Kailash 8 yearsprior. He claims that he visited her house and even she visitedtheir house. His mother was her aunt and she reported thatshe was leading happy married life. 15 days prior to theincident, she had met at Wadepuri and stayed for about 15days and at that time, had stated that she was to takeadmission in 11th standard at Sonkhed, but she did not getadmission. During her stay at Wadepuri, she did not reportanything about her married life.DW2Anusayabai claims that she knew both the families. Therewere cordial relations between accused and Vanmala. 15 daysprior to the incident, she had been to the house of accused toattend birthday of daughter of Vanmala and Kailash. Duringher visit, Vanmala had told that she was keen in takingadmission in 11th standard.DW3Baliram deposed that he does not know about relationsbetween Kailash and his wife. CriAppeal-169-2002-9- DW4Shivaji Ladane, Assistant Teacher, stated that appellant beingphotographer and his student, was called to the school forfunctions. At that time, he heard from Kailash that his wifewas keen in taking admission in 11th standard and had madeinquiries regarding it.DW5Kailash – accused appellant, in his evidence at Exhibit 61stated that after marriage, relations were cordial. They had adaughter, namely, Maya. Vanmala expressed desire to appearfor 11th standard and he took efforts to seek admission inYeshwant College, but wife had expressed that she will seekadmission only at Sonkhed and so he had taken her there. Butshe did not get admission and so she was nervous. He told hiswife that he would take efforts to get her admission afterapproaching Ladane Sir (DW4). On 01.10.1996, he left houseand went to photo studio. Around 7.30 p.m. when he reachedhome, his wife was not in the house. She was searched butwas not found. Dead bodies of his wife and daughter werefound floating in the Godavari river. According to him, sheused to go for washing clothes regularly at river.PW6Uttam, a friend of DW5, also stated that wife of his friend waskeen in taking admission to 11th standard, but at Sonkhed. Butshe did not get admission. That, she met and told in painfulmanner that she did not get admission and dead bodies ofVanmala and her daughter were found in Godavari river. CriAppeal-169-2002-10- 7.Going by the prosecution version, here, husband and in-lawswere booked for commission of offence under Sections 498-A and 306r/w 34 of IPC. Before commencement of trial and framing charge,accused father-in-law reported to have died and therefore, onlyhusband and mother-in-law faced charges and also faced trial. Onappreciation of entire evidence, learned trial Judge has acquittedmother-in-law and held appellant husband alone guilty for both thecharges.8.It is further emerging that marriage of deceased and appellantis of 1993. Alleged suicide is of 01.10.1996. Therefore, apparently,cohabitation is for three years. Appellant and deceased had adaughter. Evidence of prosecution could be categorized as ; first setcomprising of family members i.e. parents, brother and sister ofdeceased ; second set comprising acquaintances and friends ofinformant i.e. PW6 Gyanoba and PW9 Govindrao ; and third set ofpanchas and Investigating Officer.APPRECIATION OF ORAL EVIDENCE9.PW1 father-informant at Exhibit 20 stated that after 6 monthsof marriage, his daughter was subjected to cruelty for demand of CriAppeal-169-2002-11- money i.e. towards capital for running shop. He claims that hisdaughter used to inform that money was for starting shop. He claimsthat twice, in presence of PW Gyanoba and PW Govindrao, he handedover Rs.5,000/-. But according to him, again after 6 months, therewas cruelty to his daughter. In para 2 of his examination-in-chief, heclarified that cruelty was in the form of beating and starvation.He was subjected to lengthy cross of which, the portion relevantto the prosecution case is that, in para 3, he answered that he soldhouse for giving money to the accused persons. He spentconsideration received from sale of house towards marriage expenses.He answered that son-in-law Kailash (appellant) was running a photostudio named as Maya Photo Studio at Dattanagar, Nanded. Then heanswered that said photo studio was started after birth of daughter ofdeceased and it was started in her name. He further answered thatKailash had his business of photography since his marriage with hisdaughter. He also answered that deceased father-in-law Venkati hadprovisions shop at Kautha. In further cross, he answered that firstRs.5,000/- were given after about two years of marriage of Vanmalaand Kailash. He further answered that when he gave first amount ofRs.5,000/-, accused Kailash had not come to his house. He is unableto give date on which he paid Rs.5,000/- to the accused persons. In CriAppeal-169-2002-12- further cross, he stated that he had received Rs.10,000/- from oneJankiram Dalve and therefore, he gave Rs.5,000/-. He furtheranswered that he had given Rs.10,000/- to Jankiram as hand loan forhis daughter’s marriage. He again answered that the amount ofRs.5,000/- handed by Jankiram was given to accused and at thattime, Gyanoba (PW6) handed the cash to accused. He furtheranswered that he placed the amount in the hands of Gyanoba andGyanoba handed it over to Venkati. In para 4 he further answeredthat he gave Rs.5,000/- on the second occasion after lapse of twomonths of giving Rs.5,000/- on the first occasion. He answered thathe did not inform his wife and sons and even Gyanoba about givingRs.5,000/- on the second occasion. He further answered that he alsodoes not remember the day, date and year when he gave the amountof Rs.5,000/- for the second time. He answered that he gave theamount through PW9 Govindrao. To a question, “whether Venkatihad demanded the money?”, he answered that his daughter haddemanded money and not Venkatrao.10.Now, if we visit the testimony of wife of informant, i.e. PW2Vimalbai (mother of deceased), who is examined at Exhibit 32, evenshe stated that after 5 to 6 months of marriage, accused nos. 1, 2 and3 started ill-treating her daughter by making illegal demand of money CriAppeal-169-2002-13- for their shop. According to her, accused persons used to beat andstarve her daughter. They gave Rs.5,000/- to accused. Again accuseddemanded money and again Rs.5,000/- were given. About 20 daysprior to the incident, accused husband had brought daughter and herchild to their house. She stayed for 10 to 12 days and during suchstay, she told that accused treated her with cruelty by demandingmoney. Thereafter husband of this witness (PW1 Kerba) took Vamalaand her child to accused persons. After 5 to 6 days, appellant came insearch of her daughter and when they all went, her dead body wasremoved from Godavari river.In cross, she denied that any letter was sent by deceased tothem but, according to her, it was sent to her another daughter i.e.sister of deceased. Then, she again stated that she did not seek theletter. Even she is unable to give dates on which amounts ofRs.5,000/-, on two occasions, were given to the accused. According toher, the amounts were given after lapse of one year from themarriage. She answered that she had not made inquiry with herhusband as to from which source he raised amount of Rs.5,000/- ontwo occasions to give it to accused. CriAppeal-169-2002-14- 11.PW3 Rajeshwar, brother of deceased, in his evidence at Exhibit33 deposed that after 6 months of marriage, there was ill-treatmenton account of demand. Whenever his sister visited for festivals, shereported ill-treatment by accused persons. According to this witness,his father told him that he had given Rs.5,000/- to the accusedpersons and such amount was given about one year prior to theincident, but again accused persons put up demand and his fathergave Rs.5,000/- without informing them. On 01.10.1996, his sisterwas missing and was found with daughter in Godavari river. Hestated that his sister jumped in the river only due to cruelty at thehands of husband and in-laws.In cross he stated that first amount of Rs.5,000/- was given byhis father to the accused after one year of marriage.12.PW7 Shobha is sister of deceased. She stated that aftermarriage, husband ill-treated Vanmala by demanding money fromher. That, her sister used to tell about ill-treatment on account ofdemand of money by husband, father-in-law and mother-in-law. Herfather gave Rs.5,000/- twice but husband and in-laws subjected her tocruelty to bring more money from parents. According to her, Vanmalahad also sent her a letter to her. In that letter dated 03.09.1996, her CriAppeal-169-2002-15- sister had conveyed that she was subjected to cruelty for demand ofmoney and had further requested her to convey the message to herfather. She identified the letter Exhibit 42.In cross, she stated that she handed over letter Exhibit 42 aftertwo days of death of her sister. She handed over Exhibit 42 to herfather. She answered that her husband had read over the letter to her,wherein it was stated that their father had given money on twooccasions. She admitted that in previous letters, her sister had notmentioned about any ill-treatment at the hands of accused and thedemand of money.ANALYSIS OF EVIDENCE OF PARENTS, BROTHER AND SISTER13.On carefully sifting the above discussed evidence of parents,brother and sister of deceased, it is noticed that all of them are merelyspeaking about deceased being subjected to cruelty and accusedpersons putting up demand of money. Though informant claims thatthere was beating and starvation, who beat her or whether they alltogether beat her, who kept her starved and when, has not beenstated by either informant or his wife. Though informant claims thatmoney was for capital to run shop, in cross para 3, he has candidlyanswered that accused husband had his business of photography since CriAppeal-169-2002-16- his marriage with the daughter, i.e. since the beginning. Quantum ofamount demanded by way of capital for shop is not stated byinformant, or even for what purpose money was demanded has notcome in his evidence. It is pertinent to note that in para one ofexamination-in-chief he has deposed that when he went to drop hisdaughter, he gave her Rs.500/- for expenses, and he has stated that,he persuaded his daughter to stay properly. His such version givesdifferent and distinct meaning as it seems to be suggesting his owndaughter to cohabit properly. Though he claims that twice he gaveRs.5,000/-, when amount was paid has not been stated by him.According to him, he paid Rs.5,000/- after selling his house, but hehas not substantiated the sale transaction of house. In cross, heanswered that first time, payment was given by him after two years ofmarriage, whereas, his wife PW2 contradicts him as she speaks ofhanding Rs.5,000/- for the first time after one year of marriage. In hiscross, he has stated that Rs.5,000/- were paid to accused afteramount was received from one Jankiram, to whom he had extendedhand loan. But said Jankiram is not examined. On the one hand hestated that the amount of sale proceeds received by him was spent onmarriage expenses. Therefore, he has given contradictory versions. CriAppeal-169-2002-17- Likewise, when asked whether deceased Venkati had demandedmoney, informant has answered that his daughter had demanded themoney and not Venkati. Such answer also gives a distinct complexionto his version. 14.PW2 Mother also stated that there was beating and starvation,but amongst three accused, who did what has not been stated by her.In cross, she answered that she did not make inquiry with herhusband as to from which source he paid Rs.5,000/- on bothoccasions, to give it to accused. She does not depose, like herhusband, that amout of sale consideration and amount received backfrom Jankiram which was given by way of hand loan, was used to paythe demand. Therefore, both parents, who are residing under oneroof, are not found to be consistent. 15.As regards PW3 Rajeshwar is concerned, he also stated that hissister was ill-treated and there was cruelty on account of demand ofmoney. He claims that his father told him that he gave Rs.5,000/- tothe accused and even according to him, the amount was given oneyear before the incident. His such version is contrary to the version ofhis father. CriAppeal-169-2002-18- 16.PW7 Shobha claims that at the time of festivals, when her sisterused to come, she used to tell about ill-treatment meted out to her onaccount of demand by husband and in-laws. But her testimony issilent about nature of ill-treatment or quantum of amount demanded.She has not stated, like her parents, that there was beating orstarvation.17.Therefore, parents, brother and sister are not lending supportto each other. General allegations are levelled that there was demandand cruelty. Quantum of amount demanded has not been stated byany of then. Merely they are stating that amount was demanded byway of capital to run the shop. But there is no distinct evidence as tocapital in what form and for what purpose. SECOND SET OF EVIDENCE : ACQUAINTANCES/FRIENDS18.Second set of evidence comprises of PW6 Gyanoba and PW9Govindrao. They are said to be acquaintances of informant and wereparty to the alleged handing over of cash of Rs.5,000/- on two distinctoccasions.
Decision
CriAppeal-169-2002-19- 19.PW6 Gyanoba in his evidence stated that husband of daughterof informant went on raising demands of money. 5 to 6 years back,informant came to him and requested him to accompany him tovillage Kautha. He accordingly went there i.e. Kautha. At Kautha,informant gave Rs.5,000/- through him to Venkati. He furtherdeposed that he persuaded Venkati to lead happy life and to treatdaughter of Kerba properly.While under cross, he is unable to give day, date, month or yearof their visit to Kautha. He claims to have handed over bundle ofamount, but he answered that he did not count it. He answered thatthere was no discussion regarding the amount demanded by Venkati.That, when they visited Kautha, even Venkati did not demand anymoney in his presence on his own. He answered that even informantdid not express as to why Venkati was demanding money. He furtherdeposed that there was no exchange of words between informant, hisdaughter and Venkati when the amount of Rs.5,000/- was given.20.PW9 Govind, in his evidence at Exhibit 48, stated that he wascalled at the house of accused Venkati by informant while he was onthe way to the temple of Lord Maroti. He stated that at that time, CriAppeal-169-2002-20- informant gave Rs.5,000/- to Venkati. He further answered that theyhad some money transactions. While under cross, he again stated thatVenkati and Kerba had some money transaction between them andthey used to take and give money mutually. Both, informant andVenkati, had their grocery shop business. 21.On appreciating the evidence of these independent witnesses, itis emerging that, firstly, PW6, though claims to have accompaniedinformant to the house of accused, apparently, he has handed overRs.5,000/- to Venkati and not the appellant husband. His cross clearlyshows that he is unable to state the day, date and time or year of suchvisit and even his answers in cross show that he does not know thatthe amount given was towards any demand made by accused forrunning shop. Likewise, PW9 Govind has given totally differentversion as he has stated that in his presence, amount was given toVenkati and not husband. He further stated that there were moneytransactions between Venkati and informant Kerba. In cross hecandidly stated that Venkati and Kerba had money transactions inbetween them as they both run grocery shop.22.Another piece of evidence which prosecution seems to becatching hold of is the letter Exhibit 42 allegedly written by deceased CriAppeal-169-2002-21- Vanmala to her sister PW7 Shobha. PW7 Shobha has deposed aboutreceiving letter from her sister wherein it was alleged that there wasdemand and ill-treatment. However, it is noticed that Exhibit 42 ishanded over to police after two days and the same is not seized bydrawing any panchanama. Said letter was handed over by PW7 toinformant and informant further claims to have handed it to police.Apparently said Exhibit 42 is addressed to the husband of PW7 and heis not examined for the best reasons known to prosecution. Theinvestigating machinery does not seem to have taken pains to getauthorship of said letter proved by referring the said Exhibit 42 tohandwriting expert. All above aspects create doubt about Exhibit 42and cannot be straightway accepted.23.To sum up, here, unfortunate incident had taken place. Deadbodies of Vanmala and her minor daughter were traced and fetchedfrom the river water. What preceded the incident has unfortunatelynot come on record. How and why deceased went towards the river,is not getting clear. Unless there is material suggesting instigation,abetment or inducement or cruelty to be of such nature that deceasedwas left with no alternative but to end up her life, charge of Section306 IPC cannot be said to be attracted. In the light of above material,essential ingredients for attracting Sections 498-A and 306 of IPC are CriAppeal-169-2002-22- not available and so, it would be unjust to hold prosecution caseproved, as is held by the trial Judge.24.After going through the impugned judgment, in the consideredopinion of this Court, above aspects noticed on re-appreciation arenot considered by the trial court. The aspect of general and vagueallegations are given undue importance. Learned trial Judge has notjustified why Section 498-A of IPC gets attracted. In absence of anyevidence of abetment to commit suicide, charge of Section 306 IPCseems to have been applied. Above all, on same set of evidence,mother-in-law is acquitted, but husband alone is convicted withoutassigning any plausible or convincing reason. Hence, such judgmentcannot be allowed to be sustained. Accordingly, I proceed to pass thefollowing order:ORDERI.The appeal is allowed.II.The conviction awarded to the appellant Kailash s/o VenkatiMoralwar, by learned IInd Adhoc Additional Sessions Judge,Nanded in Sessions Case No. 15 of 1997 under Sections 498-Aand 306 r/w 34 of IPC on 16.03.2002 stands quashed and setaside. CriAppeal-169-2002-23- III.The appellant stand acquitted of the offence punishable underSections 498-A and 306 r/w 34 of IPC.IV.The bail bond of the appellant stands cancelled.V.Fine amount deposited, if any, be refunded to the appellant afterthe statutory period. [ABHAY S. WAGHWASE, J.]vre