High Court

Legal Reasoning

CriAppeal-126-2004-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 126 OF 20041.Vinod Shriram Dutte,aged 30 years, Occ. Agri.,2.Bablu @ Ravindra Shriram Dutte,aged 32 yrs, Occ. Agri.,3.Tulsabai Shriram Dutte,aged 50 years, Occ. Household,All R/o New Ghodasgaon, Taluka Muktainagar,District Jalgaon.… Appellants[Orig. accused nos. 1, 2 and 4]VersusState of Maharashtra… Respondent…..Mr. Joydeep Chatterji, Advocate for the Appellants.Mrs. Chaitali Chaudhari Kutti, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 04.09.2024Pronounced on: 20.09.2024JUDGMENT : 1.Judgment passed by IInd Adhoc Additional Sessions Judge,Jalgaon in Sessions Case No. 132 of 2002 rendering conviction foroffence under Sections 498-A r/w 34 and 306 r/w 34 of IPC is thesubject matter of challenge in this appeal. CriAppeal-126-2004-2- BRIEF FACTS OF PROSECUTION VERSION IN TRIAL COURT2.Deceased Yogita was married to appellant no.1 in June 1999.For six months after marriage, she was treated properly. During hersecond visit after six months of marriage, she reported informantfather that accused persons had put up a demand of Rs.75,000/- forlaying pipeline in the agricultural field. In the background of suchdemand, she was beaten, harassed and kept starved. According toprosecution, for not meeting demand, she was threatened not to beallowed to cohabit. Once, she was also given electric shock but shemanaged to survived. Ill-treatment continued to such extent thatfinally getting fed up of the same, she consumed insecticide andsuccumbed to the same on 31.01.2002.3.Informant father set law into motion. Crime was investigated byPW4 PSI Gawale and on gathering sufficient evidence, accusedpersons were chargesheeted.4.At trial, prosecution adduced evidence of in all six witnessesand relied on documentary evidence like FIR, spot panchanama,inquest panchanama, A.D. papers, postmortem report, CA report etc. CriAppeal-126-2004-3- 5.Defence also relied on testimony of DW1 Ashok Patil, Secretaryof a multipurpose cooperative society. 6.After appreciating above evidence, learned trial Judge acceptedthe case of prosecution as proved against accused nos. 1, 2 and 4 andrest of the accused stood acquitted from all charges.7.Feeling aggrieved by the above judgment and order ofconviction, by invoking Section 374 of the Code of CriminalProcedure [Cr.P.C.], the instant appeal has been filed.SUBMISSIONSOn behalf of the appellants :8.Learned counsel for the appellants submitted that there is noconvincing or legally acceptable evidence on behalf of the prosecutionand moreover, according to him, case of prosecution has not beenproved beyond reasonable doubt. As regards the allegation of offenceunder Section 498-A of IPC is concerned, he submitted that there areapparently vague, general and omnibus allegations. Specific roles arenot defined. He pointed out that allegation is of demand ofRs.75,000/- for laying agricultural pipeline, but at the time of FIR, oreven at the time of marriage, accused had already laid agricultural CriAppeal-126-2004-4- pipeline by raising loan from a co-operative society and witness tothat extent has been examined by defence and therefore, it is hissubmission that, allegation of demand of Rs.75,000/- is apparentlyfalse and afterthought and out of annoyance of losing Yogita, whomet with accidental death.9.Learned counsel for the appellants took this Court through thetestimony of informant and his wife and would point out that they arenot consistent with each other on material counts. Even theirtestimonies are full of material omissions and therefore, according tohim, it is unsafe to seek reliance on such testimonies.10.As regards the allegation of abetment to suicide is concerned,learned counsel would submit that there is evidence suggestingspraying of insecticide being in progress in the field. Therefore, thereis every possibility of accidental inhalation as victim had complainedof nausea in the evening and was taken to the hospital by husbandand in-laws. He pointed out that alleged incident is of night of31.01.2002. There are no allegations or material suggestingabetment, inducement or any active role played by any of theappellants in abetting suicide. He further pointed out that autopsydoctor has issued opinion even prior to receipt of CA report. He CriAppeal-126-2004-5- pointed out that there are several unanswered questions fromprosecution side and their evidence is not full-proof or cogent insupport of allegation of suicide. Consequently, he criticizes themanner of appreciation of evidence as well as finding recorded bylearned trial Judge and prays for indulgence by setting aside thejudgment by allowing the appeal.On behalf of the Respondent State :11.In support of the judgment, learned APP would submit thatcase has been proved beyond reasonable doubt. That, barely after fewmonths of marriage, accused persons put up demand of money forlaying pipeline in the agricultural field. In spite of being informedabout inability to meet the demand, the demand continued and for itsfulfillment, deceased was subjected to maltreatment. She promptlyreported about it on all occasions when she went to her parents’home. That, once attempt was made to give here electric shock. That,even when she was suffering from swelling to the thigh, no medicaltreatment was provided to her. Their such conduct and behaviour wasonly to pressurize her as well as parents to meet their demand. Thus,according to learned APP, there is ample evidence about commissionof offence under Section 498A of IPC. CriAppeal-126-2004-6- 12.As regards abetment to commit suicide is concerned, shesubmitted that false defence has been set up. Deceased had consumedinsecticide. CA report confirms detection of organo-phosphorousinsecticide on the articles as well as viscera. Consumption had takenplace in the house. Insecticide container was found in the house andtherefore she questions that, what more is required to hold appellantsresponsible for the consumption. According to learned APP, there wasno other reason for her to end up her life. They are solely responsibleand are therefore rightly held guilty. Consequently, she prays todismiss the appeal.13.Learned APP seeks reliance on the judgments of the Hon’bleApex Court in Paranagouda and another v. The State of Karnatakaand another [Special Leave Petition (Crl.) No. 12216 of 2022 decidedon 19.10.2023], Kamalakar v. State of Karnataka [Criminal AppealNo. 1485 of 2011 decided on 12.10.2023] and Siddaling v. The State,through Kalagi Police Station AIR OnLine 2018 SC 231. EVIDENCE ON RECORD14.Sum and substance of the six witnesses examined by theprosecution in support of its case, and their role and status is asunder: CriAppeal-126-2004-7- PW1Baburao is father of deceased. He stated that after six months,there was demand of Rs.75,000/- by accused persons for layingpipeline and in such backdrop, there was cruelty in the form ofbeating, harassment and starvation. His daughter consumedpoison and succumbed to the same and hence the complaint.PW2 Anusayabai, mother of deceased, also stated that after sixmonths, accused insisted her daughter to bring Rs.75,000/- forlaying pipeline. On non-fulfillment, husband and mother-in-lawdid not provide food and they beat her. On 31.01.2000, newsthat she consumed poison was received and she succumbed tothe same.PW3Bhaskarrao acted as pancha to spot panchanama Exhibit 28and seizure of clothes. PW4 PSI Gawale is the Investigating Officer.PW5Sk. Ibrahim acted as pancha to seizure of article. He did notsupport prosecution.PW6Dr. Girish Patil is the autopsy surgeon, who opined death dueto consumption of monocrotophos poison.Accused has also examined defence witness, i.e. DW1 AshokPatil, Secretary of Ghodasgaon Multipurpose Co-operative SocietyLtd., who deposed about accused no. 3 borrowing loan for layingpipeline on 18.03.2000. CriAppeal-126-2004-8- ANALYSIS15.Here, appellants were chargesheeted for commission of offenceunder Sections 498-A, 306 r/w 34 of IPC. Out of original five accused,accused nos.3 and 5 i.e. Shriram and Narendra were acquitted.However, husband Vinod, brother-in-law Ravindra and mother-in-lawTulsabai were held guilty for offence under Sections 498-A and 306 ofIPC. 16.Sum and substance of prosecution case is that all accusedpersons demanded Rs.75,000/- for laying pipeline in their agriculturalfield. For fulfillment of said demand, there was maltreatment todeceased. That, only because of cruelty and harassment at theirhands, she consumed poison and succumbed to the same. 17.Though case of prosecution is rested on testimony of sixwitnesses, crucial evidence is of parents PW1 and PW2, as rest of thewitnesses are panchas, police official and autopsy surgeon. Therefore,evidence of parents of deceased is required to be carefully analyzed toascertained whether prosecution has proved the charges beyondreasonable doubt. Relevant evidence of PW1 and PW2 is required tobe reproduced in verbatim. CriAppeal-126-2004-9- 18.PW1 Baburao initially deposed that after marriage of hisdaughter with appellant Vinod on 18.06.1999, she went to residewith her in-laws. First visit was paid by her after two months and atthat time, she reported that her matrimonial life was smooth. Hersecond visit was after six months. But that time, witness deposed that,she disclosed that all accused were demanding Rs.75,000/- for layingpipeline in their field. He could not give said amount because of hisfinancial position and so his daughter returned back to hermatrimonial home immediately. She was brought again after six toseven months and that time she disclosed that she was being“beaten”, “harassed” and “not provided with food” and being“pestered” for Rs.75,000/-. His daughter attributed ill-treatment tomother-in-law Tulsabai, brother-in-law Ravindra and husband Vinod.During visit of his sister-in-law Marabai to the matrimonial home ofhis daughter, she informed her that she was being beaten, ill-treatedby husband, mother-in-law and elder brother-in-law and she was notgiven proper food. During her stay for Diwali festival for seven toeight days, she repeated about same ill-treatment at the hands ofaccused for non-payment of Rs.75,000/-. When husband came to takeher back, he talked in insulting manner and abused this witness andwarned for not giving Rs.75,000/- by saying that Yogita will not liveand he would not allow her to live. Later on he learnt that she CriAppeal-126-2004-10- conceived, but her in laws decided to terminate her pregnancy. Threeto four days thereafter, he got news that Yogita suffered electric shockwhile drying clothes and fell. Witness claims that he went andquestioned accused about electric shock and at that time accusedVinod said that this time she survived, but will not in future. Yogitawas brought for delivery, she delivered girl child but none of theaccused came to see the newborn. During Ekadashi, when he and hiswife paid visit to their daughter at matrimonial home, they noticedswelling to her thigh and mother-in-law complained that she waspretending to avoid domestic work and therefore she was broughthome at Nimbhora and treated. According to him, treating doctorinformed that puss had developed due to poisonous injection.Husband came to take her but refused to take tea and meals. On31.01.2002, phone call was received that Yogita consumed poisonand brought to hospital at Muktainagar. When they went there, theysaw her dead body. He approached police and lodged report Exhibit25. Grand daughter Jayashree also expired. 19.There is extensive cross running into several pages andtherefore only relevant cross is reproduced herein. In para 10 he admitted that, one Shriram Taral had acted asmiddleman in settlement of marriage of Yogita. He denied that CriAppeal-126-2004-11- accused spent expenses of marriage. In para 11, he admitted that hewas working as Police Patil but was suspended. In para 12, headmitted that in two and half years matrimonial life, his daughter didnot send any letter to him. He is unable to state in whose name 15acres of agricultural land of accused was shown in the revenuerecorded. He admitted that some land was already having irrigationfacility. He admitted that at the time of incident, accused werereaping cash crops like banana, cotton and sugarcane. He denied thathis daughter and her mother-in-law laboured in the field. He deniedthat in January, insecticides are being sprayed on crops. In para 13,he denied that for the first time in April 2000 there was demand ofRs.75,000/- to Yogita. He later on volunteered that demand staredafter 6 months of her marriage. In further cross he admitted that allthree accused met Yogita and gave new clothes and one gold ringabout ½ gram to the newborn. In para 14, he expressed his ignoranceas to whether in February 2002 accused persons laid pipeline in theirfield at their own expenses by obtaining loan from a multipurposecooperative society at Muktainagar. In para 15, he admitted that aftertaking treatment for swollen thigh and staying for one to one and halfmonth, when she went back to her matrimonial house, till her death,he had no contact with her. In para 16, he admitted that Yogita wasbrought to the hospital at Muktainagar by the accused persons. CriAppeal-126-2004-12- Para 17 is full of omissions as he answered regarding statingthat six months after marriage, during her visit Yogita disclosed aboutaccused pestering her to bring Rs. 75,000/- and they were abusingher, beating her and not providing sufficient food; about Marabaivisiting matrimonial house of Yogita and such lady disclosed to himabout ill-treatment to Yogita; that, he visited her matrimonial house,and told her husband and father in law that he does not haveRs.75,000/-; that at the time of Diwali, when accused no.1 came totake her, he insulted and humiliated him and that he warned that ifamount of Rs.75,000/- is not paid, he will not allow her to live. Whenhis complaint was confronted, he admitted that it is not appearingtherein and is also unable to assign any reason why police omittedsuch facts from his complaint. An omission is also brought about he stating to police thatYogita also informed that, when it was noticed that foetus of Yogitawas of female, accused decided to terminate pregnancy.Again omissions are brought about receiving phone call fromaccused Ravindra informing electric shock suffered by Yogita; that,when after delivery accused were invited to see the newborn and theyreplied that they were not interested; that, he saw Yogita lying in hermatrimonial house with swollen thigh and about her mother-in-law CriAppeal-126-2004-13- saying that she was avoiding her duties on one or other reason andtherefore he lifted her and brought her to his house and gavetreatment and treating doctor informed that the puss was due topoisonous injection. He is unable to state why above version is notfinding place in his complaint. 20.On visiting testimony of PW2 mother Anusayabai, she toodeposed that after 6 months, Yogita disclosed that her matrimonialrelations insisted to bring Rs.75,000/- for laying pipeline. As thedemand was not fulfilled, husband and mother-in-law were notproviding food regularly and they beat her. When Yogita came forfirst Diwali, she disclosed the above harassment. When accusedhusband came to take her, he put up demand of Rs.75,000/- or tokeep Yogita in their house. She too narrated about her daughtermaking disclosure of ill-treatment to Marabai, she suffering electricshock, during their visit to her, they coming across swollen thigh andshe being brought and treated. On 31.01.2002, they received callthat Yogita consumed poison. While under cross, she is unable to state total agriculturalholding of accused. According to her, accused no.1 Vinod was lookingafter the land. She also admitted that, it did happen that they first CriAppeal-126-2004-14- time came to know about demand of amount to Yogita in April 2000.She admitted that before delivery, when there were pains,information was passed to accused on phone and at that time accusedVinod and Tulsabai had come and thereafter, they both went back.She answered that after death of Yogita, police never interrogated herand that she never stated to police that after 6 months of marriageYogita told that she was ill-treated and pestered for Rs.75,000/-. Restis all denial.21.On carefully sifting the testimony of parents, it is emerging thatallegation of demand of Rs.75,000/- is raised by informant fatheragainst all accused, i.e. after six months of marriage, and there wasalleged to be beating, harassment and not providing food. Suchallegations are attributed to husband, mother-in-law and brother-in-law by informant. But PW2 mother attributed allegations of allegedmaltreatment only to husband and mother-in-law, and not brother-in-law. Who amongst the two beat her, or both beat her, and what wasthe form of harassment, is not clarified by both these witnesses. Whenexactly and who did not provide food is not made clear. Primaryaccusations by both are that Rs.75,000/- were demanded for layingpipeline i.e. after six months of marriage. Marriage is of 18.06.1999.Therefore, demand raised could be on December 1999. CriAppeal-126-2004-15- 22.In para 17 of the cross of informant, there are materialomissions about Yogita, after six months of marriage, disclosing thataccused were pestering her for Rs.75,000/-, abusing her, beating herand not providing food. There is also omission about accused no.1husband, during his visit at the time of Diwali, warning that if there isfailure to pay Rs.75,000/- he would not allow Yogita to live. Likewise, even PW2 mother, in cross para 3 stated that afterdeath of Yogita, police never interrogated her and she never statedbefore police that six months after marriage, Yogita disclosed that shewas ill-treated and pestered for Rs.75,000/-. Therefore, from abovematerial, it is explicit that, apart from material omission, there is clearattempt to improvise the version by both parents. 23.Here, specific defence is that loan was obtained for layingpipeline and even witness to that extent has been examined in theform of DW1. On visiting evidence of DW1, he has deposed in Exhibit44 about accused no.3 borrowing loan on 18.03.2000 from theirsociety to the tune of Rs.1,20,000/- i.e. for laying pipeline in the field.This witness has also placed on record loan sanction letter at Exhibit45. CriAppeal-126-2004-16- Consequently, testimony of DW1 goes to show that loan wasapplied for laying pipeline and it was also raised and got sanctionedthrough multipurpose society. Taking such evidence intoconsideration, accusation that there was maltreatment on account ofdemand of Rs.75,000/-, coupled with it to be material omissionproved through I.O., their versions come under shadow of doubt. 24.Therefore, to summarize as regards to offence under Section498-A of IPC is concerned, there are allegations of abuses withoutelaborating nature of abuses ; secondly, beating, and its instances arenot quoted nor specific role is attributed ; and thirdly, not providingfood. During entire cohabitation of two years, when above treatmentis meted out has not been stated by either PW1 or PW2. In view ofevidence of DW1, allegation of demand of Rs,75,000/- for layingpipeline comes under shadow of doubt. Answers given by informantin para 15 show that there was no contact between deceased andparents for a considerable gap. Therefore, there is no material toshow that there was continuous or incessant harassment or cruelty inthe backdrop of alleged demand. Hence, in the considered opinion ofthis Court, there is weak or fragile evidence as regards to Section 498-A of IPC is concerned. CriAppeal-126-2004-17- 25.Second accusation of prosecution is that because of the ill-treatment, Yogita consumed insecticide on 31.01.2002. Case ofdefence is that there is possibility of accidental consumption. 26.In order to attract offence of 306 IPC, it is incumbent uponprosecution to establish abetment, inducement or instigation tocommit suicide. Apart from mens rea, it is further required to beshown that there is positive or active role played by accused inabetment of such suicide. Deceased and accused resided at NewGhodasgaon, Taluka Muktainagar, District Jalgaon. 27.On close scrutiny of informant’s evidence, it is emerging thatdeceased had come for delivery in 7th month and after two months ofdelivery, she returned back to her matrimonial house. Exactly inwhich month she went, has not come on record. Visit of parents wassaid to be during Ekadashi festival which fell in July. After beingbrought home, on noticing swelling to the thigh, deceased stayed fortwo months. If this is so, then her stay at parents’ place should be upto September/October. During her such cohabitation there does notseem to be specific allegation of any sort. News of consumption seemto have been received by PW1 and PW2 on 31.01.2002. Going bysuch dates and period, again, there is no instance or incidence in the CriAppeal-126-2004-18- backdrop of demand, or any abetment, inducement or instigation atthe hands of appellants, i.e. more particularly in proximity to31.01.2002. There is nothing suggesting or attributable to theappellants to show that they are responsible for alleged consumption.28.Perused the judgment impugned herein. In the consideredopinion of this Court, there is improper appreciation of both, evidenceas well as law. It is noticed that, judgment, more particularly para 17and 18 is full of conjectures and surmises. Omissions which havecropped up in the very informant’s evidence in para 17, which arematerial in nature, are apparently lost sight of and even answers byPW2 mother in cross are not properly appreciated. In spite of holdinginformant to be a Police Patil, he is branded as a rustic villager andthe vital omissions are overlooked. Trial court was expected toascertain whether necessary ingredients for attracting Section 498-Aas well as 306 of IPC are available in the evidence of PW1 and PW2.Merely because death had taken place within seven years, learnedtrial Judge seems to have drawn presumption under Section 113-A ofthe Evidence Act and applied it, i.e. without first getting convincedand satisfied that initial burden and primary case of prosecution is atall proved or not. Consequently, there is erroneous approach and as CriAppeal-126-2004-19- such, impugned judgment cannot be allowed to be sustained. Hence, Iproceed to pass the following order :ORDERI.The appeal is allowed.II.The conviction awarded to the appellants, i.e. appellant no.1Vinod Shriram Dutte, appellant no.2.Bablu @ Ravindra ShriramDutte and appellant no.3. Tulsabai Shriram Dutte, by learned IIndAd-hoc Additional Sessions Judge, Jalgaon in Sessions Case No.132 of 2002 for offence under Sections 498-A and 306 r/w 34 ofIPC on 21.02.2004 is hereby quashed and set aside.III.The appellants stand acquitted of the offence punishable underSections 498-A and 306 r/w 34 of IPCIV.The bail bonds of the appellants stand cancelled.V.Fine amount deposited, if any, be refunded to the appellantsafter the statutory period.VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre