High Court · 2024
Legal Reasoning
Cri.Appeal.124.2004-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 124 OF 2004Ankush S/o. Kashinath Shrikhande, Age : 33 years, Occu. : Agri., R/o. Kaygaon, Tq. Sillod, Dist. Aurangabad … Appellant (Orig. Accused No.1.)VersusThe State of Maharashtra… Respondent.….Mr. Abhaysinh K. Bhosale, Advocate for Appellant.Mr. K. K. Naik, APP for Respondent – State.…. CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 30 SEPTEMBER 2024 PRONOUNCED ON : 04 OCTOBER 2024 JUDGMENT :- 1.Convict Ankush is hereby taking exception to thejudgment and order passed by IIIrd Additional Sessions Judge,Aurangabad dated 21.02.2004 in Sessions Case No.265 of 2001recording guilt for offence punishable under section 498-A and306 of Indian Penal Code (For short, “IPC”). STORY OF PROSECUTION IN TRIAL COURT IS AS UNDER2.Deceased Anita was married to appellant on04.05.1998. For a period of one year, everything was smooth,however, thereafter husband and in-laws subjected deceased to Cri.Appeal.124.2004-2- ill treatment on account of demand of Rs.30,000/- forpurchasing a tractor. Deceased reported about ill treatment toher parents and her sister. On 10.04.2000, understanding wasgiven to accused. On 20.04.2000, news of Anita committedsuicide was received. After funeral, father PW1 Bhimraoapproached Wadod Bazar Police Station and lodged report, onthe basis of which crime was registered. After investigation and gathering sufficientevidence, husband and in-laws were charge-sheeted andultimately tried by learned IIIrd Additional Sessions Judge,Aurangabad vide Sessions Case No. 265 of 2001. The above sessions case came to be decided on21.02.2004, convicting appellant husband and acquitting in-laws i.e. vide judgment and order dated 21.02.2004. Feeling aggrieved by the above, husband has takenexception to by filing instant appeal. SUBMISSIONSOn behalf of Appellant :3.According to learned counsel, prosecution has failedto prove the charges beyond reasonable doubt. He submittedthat, there is no independent piece of evidence. That, only Cri.Appeal.124.2004-3- family members are examined. According to him, they aremaking general and vague allegations against all accusedwithout specifying role. He pointed out that, on same set ofevidence, accused nos.2 to 4 are acquitted, but only husbandalone is held guilty. Thus, according to him, there is improperappreciation. That, necessary ingredients for attracting thecharges were not available, still conviction is recorded andhence the same being erroneous and illegal, he seeksintervention at the hands of this court.On behalf of Respondent – State : -4.While opposing the above appeal, learned APPsubmitted that, barely after one year of marriage, there wasdemand. As the same was not met, husband and in-laws illtreated her. He pointed out that there was beating as well as notproviding food and according to him, it amounts to ill treatmentand cruelty. He pointed out that, Anita consumed insecticide.Her small child also died due to consumption. That, suicide wasonly because ill treatment and cruelty. That, husband beat herand therefore, according to learned APP, learned trial courtcommitted no error whatsoever in accepting prosecutionversion and he prays to dismiss the appeal. Cri.Appeal.124.2004-4- EVIDENCE ON RECORD5.Role and status of prosecution witnesses is asunder : PW1 Bhimrao is informant father of deceased. PW2 Anusayabai is mother of deceased. PW3 Sunita is elder sister of deceased. PW4 Vinayak is the pancha to spot panchanama. PW5 Sukhdeo, pancha to seizure panchanama didnot support prosecution. PW6 Shivaji another pancha did not supportprosecution. PW7 Chandrabhan, independent witness, who gaveinformation to police. PW8 A.P.I. Band is the Investigating Officer. PW9 Dr. Korale, the Medical Officer, who conductedautopsy.SUM AND SUBSTANCE OF PROSECUTION EVIDENCE6.PW1 Bhimrao informant father at Exh.20 deposedas under :- “Deceased Anita was my daughter. Her marriage hadtaken place on 04.05.1998 with accused no.1. After themarriage, Anita had been to the house of accused no.1for cohabitation at village Kaigaon, Tq. Sillod. Accusedno.1 was residing in a joint family alongwith accusednos.2 to 4. For a period of one year accused persons
Legal Reasoning
Cri.Appeal.124.2004-5- have treated my daughter as usual at their house. Afterthe period of one year accused nos.1 to 4 made ademand of Rs.30,000/- to my daughter Anita forpurchasing a tractor. Thereafter my daughter deceasedAnita had delivered a male child named Akash. At thetime of incident Akash was aged six months. Whenevermy daughter used to come at my house at the time offestival she used to disclose us the said fact of demandof Rs.30,000/-. My daughter told me that on the accountof demand of Rs.30,000/- accused nos. 1 to 4 wereabusing, Accused nos.1 to 4 used to beat my daughterAnita and they were also not provided food to her intime. Thereafter my daughter had been to my house forHoli festival, at that time, she disclosed me the saidincident. When my daughter told me the fact of demandof Rs.30,000/- at that time I convinced my daughterand told her that I will give understanding to her herhusband. Thereafter I have understanding to theaccused no.1 about my inability to pay money and notto ill treat my daughter thereafter.At the time of Holi festival my daughter stayed at myhouse till Gudipadva. Her husband had been to fetchher on 10.04.2000. I gave understanding to herhusband and sent my daughter with him. On20.04.2000 at about 7:30 a.m. when I was atAurangabad Madhav Shrikhande R/o. Kaigaon came tomy house and informed me about the death of mydaughter by drowning into the well.After Post-mortem the funeral had taken place atKaigaon. After funeral, I went to my house at Dhanora.My family members were also present at the time offuneral. When dead bodies were taken to Kaigaon forfuneral at that time I had given a complaint to policestation Wadod-Bazar.” While under cross, he denied that there was no illtreatment. He admitted that funeral was over by 7:00 p.m. on Cri.Appeal.124.2004-6- 20.04.2000. He answered that, when he reached to the spot, hesaw the policemen available there and further admitted thatpolice made inquires with him. 7.PW2 Anusayabai mother at Exh.22 deposed asunder :- “Anita was treated well for about one year. Anita usedto come at my house at the time of festival. She wastelling us about the ill-treatment to her from theaccused on the account of demand of Rs.30,000/- forpurchasing tractor. We told to Anita that we could notpay Rs.30,000/- due to indeptness, we will convince tothe accused persons. Thereafter, at the time of Holifestival in the year 2000 my husband Bhimrao hadbeen to fetch deceased Anita. Deceased Anita came tomy house for Holi festival. Anita was at my house tillGudipadva. She had disclosed me the ill-treatmentabout beating to her and abusing by accused nos.1 to 4for Rs.30,000/-.At the time of Gudipadva festival accused no.1 came tomy house. We have given understanding to accusedno.1 not to ill-treat my daughter thereinafter and wecould not pay the money. Anita was sent with accusedno.1 for cohabitation. After 10 days we received amessage from some persons of village Kaigaon aboutthe death of my daughter Anita due to drowning in tothe well.” While under cross PW2 Anusayabai admitted that,Anita disclosed ill-treatment to her from accused when she wasfetched for Holi festival. That, said fact was not disclosed by herto anyone till her death. She too admitted that, police were Cri.Appeal.124.2004-7- present at Kaigaon before they reached the spot and thereafterpolice made inquiry with them. She answered that, after oneday of the funeral, she reported police about ill treatment.Omission is brought to the extent that, at the time of GudhiPadwa festival, they gave understanding to accused no.1 not togive ill treatment to deceased.8.PW3 Sunita sister at Exh.23 deposed as under :- “The marriage of Anita had taken place on 04.05.1998with accused no.1. Anita went to village Kaigaon withaccused no.1 for cohabitation. She was treated well forone year by accused no.1 at Kaigaon. Accused no.1 to 4were residing in joint family. During the wedlock Anitahad given birth to Akash. At the time of death of Anita,Akash was aged 8 months, and he is also died, inincident. Whenever Anita had been to the house of myparents, she was disclosing the ill treatment to her byaccused by beating on the count that accused no.1 to 4were making demand of Rs.30,000/- to her forpurchasing tractor. My father was convincingdeceased. Before Gudi padva festival my father hadbeen to fetch Anita. Anita stayed at my house for about8 days. Thereafter after Gudi Padva festival accusedno.1 had come to take her. My father gaveunderstanding to accused no.1 not to ill-treat Anita.Then she was sent to Kaigaon with accused no.1. Atthat time, my sister Anita was weeping. On20.04.2000, we received a message about death ofAnita by drowning into the well.”While under cross omission is brought that at thetime of Gudhi Padwa festival, accused no.1 was given Cri.Appeal.124.2004-8- understanding that not to ill-treat deceased Anita. At that time,deceased Anita was weeping. Rest is all denial.Above is the evidence of parents and sister. ANALYSIS9. On careful scrutiny of above substantive evidenceand answers given in cross examination, it is noticed that, thereare allegations of demand of Rs.30,000/- for purchase oftractor. Apparently, all above family members are attributingdemand as well as ill treatment to all four accused. As pointedout, there are only allegations of beating. When such instancestook place since marriage, is not getting clear. Even theirevidence shows that, disclosure was only once that too duringvisit for Holi festival. Second allegation by informant father isthat, accused did not provide her food “in-time”. Therefore, itdoes not amount to keeping her starved or not giving food at all.Mother and sister are silent about this. Consequently, evidenceon the point of section 498-A IPC is apparently general andweak. As stated above, only one incident reported during entirecohabitation.10.It seems that, unfortunately deceased died due todrowning in well. Parallel case is that, insecticide was detectedin viscera of both deceased Anita as well as her child. What Cri.Appeal.124.2004-9- father and mother speak is that she had come for Holi festivaland her husband has come to fetch her on 10.04.2000 and after10 days Anita seems to have met death. What happenedimmediately in proximity to 20.04.2000 has not come onrecord. PW7 Chandrabhan, independent witness, who gaveinformation (khabar) to police, deposed that, on the interveningnight of 19.04.2000 and 20.04.2000 around midnight, presentappellant visited him and informed that Anita was missing.Therefore, search was undertaken of both, mother and son.Dead bodies were found on 20.04.2000. This witness has givenkhabar. Again he has reported that, on 19.04.2000, Anita hadbeen to the field in the afternoon. She had taken meals and leftthe house around 2:30 to 2:45 p.m., but she did not returnhome. What exactly happened since afternoon of 19.04.2000 tilldead bodies were noticed after fetch out of well water, is notgetting clear. 11.Defence case is that, insecticide is used as they beingagriculturist. Therefore, inference about whether it wasaccidental consumption or otherwise, can not be drawn unlessthere is material suggesting any occurrence pertaining to mal-treatment taking place previously up to she going missing. Cri.Appeal.124.2004-10- 12.Learned APP submitted that, death has taken placewithin a year of marriage and therefore, according to him,section 113A of Indian Evidence Act comes into play. It is truethat, section 113A of Evidence Act can be used to drawpresumption, but the view of settled law is that, initiallyprosecution has to discharge its primary burden establishingthe foundational facts. Only then as an accessory section 113Aof Evidence Act can be invoked. There are catena of judgmentson the point of section 113A Evidence Act, presumption as toabetment of suicide by a married woman in the cases like Stateof H.P. v. Nikku Ram and Ors., (1995) 6 SCC 219; Lakhjit Singhand Anr. v. State of Punjab, 1994 Supp (1) SCC 173; State ofPunjab v. Iqbal Singh and Ors, (1991) 3 SCC 1. Here, above discussion shows that there is weakevidence on the point of mal-treatment or it to be of such natureor to be so consistent and incessant that deceased was left withno other alternative, but to end up her life. As stated above onlysolitary incident of beating and demand is said to be informed atthe time Holi festival. 13.Perused the judgment under challenge. As pointedout, learned trial Judge on same set of evidence has acquitted Cri.Appeal.124.2004-11- accused nos. 2 to 4 and only husband alone is held guilty byapplying presumption under section 113A of Evidence Act.Therefore, apparently erroneous approach has been adoptedand hence it is a fit case to interfere. Accordingly, I proceed topass the following order : - ORDERI)The criminal appeal is allowed.II)The conviction awarded to appellant - Ankush S/o.Kashinath Shrikhande in Sessions Case No.265 of2001 by IIIrd Additional Sessions Judge, Aurangabadon 21.02.2004 for the offence punishable undersections 498-A and 306 of Indian Penal Code, standsquashed and set aside.III)The appellant stands acquitted of the offencepunishable under sections 498-A and 306 of IndianPenal Code.IV)The bail bonds of the appellant stands cancelled.V)The fine amount deposited, if any, be refunded to theappellants after the statutory period.VI) It is clarified that there is no change as regards theorder in respect of disposal of Muddemal. [ABHAY S. WAGHWASE, J.]Tandale