Service,R/o. C/o S v. Bedarkar, H. No. D-44, Sanjay Nagar, Old Jalna, District Jalna
Case Details
2024:BHC-AUG:30211 Cri Appeal No. 209.2004-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 209 OF 2004Ganesh Bhagwanrao Karhade,Age : 30 years, Occu : Service,R/o. C/o S. V. Bedarkar, H. No. D-44, Sanjay Nagar, Old Jalna, District Jalna …. Appellant VersusThe State of Maharashtra ….. Respondent …..Advocate for Appellant : Mr. Jaydeep ChatterjiAPP for Respondent-State : Ms. Chaitali Chaudhari-Kutti….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 28.11.2024 PRONOUNCED ON : 18.12.2024JUDGMENT : 1.By invoking Section 374 of Cr.P.C., original accused husband,who alone is convicted for offence under Sections 498A and Section511 r/w 313 of IPC, is hereby taking exception to judgment and orderdated 10.03.2004 passed by IInd Ad-hoc Additional Sessions Judge,Beed in Session Case No. 90 of 1997. Cri Appeal No. 209.2004-2- CASE OF PROSECUTION2.In nutshell, husband and in-laws of deceased Vaishali werechargesheeted on the premise that after one month of marriage,deceased was subjected to cruelty on account of failure to meet theirdemand of 10 tola gold agreed to be given at the time of fixingmarriage. She was driven out of the house as above demand was notmet. They were also keen in performing second marriage of husbandand expected handsome dowry thereupon. It is also the case ofprosecution that husband gave kick to deceased while she was inadvanced pregnancy, resulting into bleeding and consequently,abortion. Getting fed up of the same, finally Vaishali immolatedherself and hence the above implication by brother, resulting intoregistration of crime.3.PW11 PI Kendre carried out investigation and after gatheringevidence, charge-sheeted accused. At trial, prosecution adducedevidence of in all 12 witnesses. Defence also adduced evidence of 5witnesses in support of their stand. 4.Learned IInd Ad-hoc Additional Sessions Judge, Beedappreciated the oral and documentary evidence and by judgment andorder dated 10.03.2004, convicted accused appellant Ganesh for
Legal Reasoning
Cri Appeal No. 209.2004-3- offence under Sections 498A and 511 r/w 311 of IPC and he isacquitted from charge under Section 304-B of IPC. Rest of the accusedare acquitted from all the charges.Above judgment is now the subject matter of the appeal beforethis Court. SUBMISSIONSOn behalf of the Appellant:5.Learned counsel for appellant, pleading false implication,submitted that there are sweeping allegations without specifying orelaborating role of accused. He pointed out that on same set ofevidence, accused Nos. 2 to 6 are already acquitted, however, withoutassigning sound reasons, husband alone is held guilty for offencewhich is not proved against him also. That, allegations raised are notsubstantiated, not there is any foundation or material by prosecution.He pointed out that even husband and other accused are alreadyacquitted by learned Trial Court from charge under Section 304-BIPC. 6.Taking this Court through the evidence, more particularly thatof brothers, mother, neighbour and so called friend of deceased, hepointed out that necessary ingredients of Section 498-A are palpably Cri Appeal No. 209.2004-4- missing. He would submit that allegations are levelled in pluralmanner. Distinct roles are not defined by anyone. He pointed out thatthe answers given by these witnesses in cross-examination itself showthat implication is merely on account of annoyance of losingdeceased. General allegations are raised alleging harassment withoutspecifying its form. According to him, oral evidence falls short forattracting charge under Section 498-A of IPC. He also points out thatcharge of 511 r/w 313 itself gets disproved from prosecution’s ownwitness i.e. PW9, who admitted that abortion was necessary and thatdeceased herself had consented for the same.7.Lastly, he pointed out that admittedly, since January 1997,deceased was at her parents’ place at Aurangabad. There was nocommunication or contact between deceased or accused till theepisode of suicide by her on 19.02.1997. Therefore, for want ofcogent, reliable and convincing evidence, he questions findings oflearned trial court as regards to charge under Section 498-A isconcerned. Similarly, in view of evidence of PW9, he also questionsguilt recorded for Section 511 r/w 313 IPC. For all above reasons, heprays to allow the appeal. Cri Appeal No. 209.2004-5- On behalf of the Respondent-State :8.Strongly opposing the above and supporting the conviction,learned APP submitted that, merely after a month of marriage,deceased Vaishali was maltreated and harassed for not receiving goldornaments as per their expectations. Taking this court through theevidence of informant brother, other brother and mother, learned APPsubmitted that they are all consistent and supporting each other aboutharassment to Vaishali on above count and beating by husband oninstigation of mother-in-law. Learned APP further submitted that theyare all speaking about present appellant giving kick to deceasedVaishali during her pregnancy, which had resulted in bleeding andshe was required to be taken to hospital. The impact of kick resultedinto abortion. That, abortion was done against her wish. Therefore,offence of Section 511 IPC is squarely attracted. That, husband wasnot willing to have child from Vaishali and was rather keen inperforming second marriage for greed of more dowry. Deceased hadreported about it to her brother and mother and even her close friendand they have deposed to that extent. That, deceased was driven outof the house as their demand was not met. Only because of suchtreatment at their hands, and for refusing to take her back, she was Cri Appeal No. 209.2004-6- constrained to commit suicide. According to learned APP, accusedbeing solely responsible for above offence, is rightly held guilty andhence, she prays to dismiss the appeal. She seeks reliance on twojudgments i.e. Kamalakar v. State of Karnataka [Criminal Appeal No.1485 of 2011 decided by the Hon’ble Apex Court on 12.10.2023] andSatish s/o Changdeo Kolhe and another v. State of Maharashtra[Criminal Appeal No. 453 of 2005 decided by this Court on19.11.2024].EVIDENCE BEFORE THE TRIAL COURT9.In support of its case, prosecution has examined in all 12witnesses. Their role and status and the sum and substance of theirevidence can be summarized as under:PW1 Dr. Arun Bapurao Shikhare, who is neighbourer of deceased,has deposed at Exhibit 55 as under.“1.…..2. I am knowing incident taken place in his house, Thesame was nearabout 5 years back. On that day I was present inmy house. The said incident taken placebetween 4 p.m. and 5p.m. when I came in the door of the house of ChandrakantraoKulkarni. After seeing the same, I went there. I made enquiriesto what happened there. At that time, it was informed to methat younger daughter of Chandrakantrao Kulkarni set fire to Cri Appeal No. 209.2004-7- hereself. Being the doctor it was requested to me to see her.Accordingly I entered into the said room and at that time therewas a smoke in the said room. At that time when I entered Ireceived smell kerosene from that place. At that time, it wasnoticed that the said room become blackish. At that time I sawthe said girl was lying in the corner of the room. I saw the saidgirl was lying in the corner of the room. I saw her. At that timeit was revealed that her body become blackish. Her legs andhands inside. I examined to her. At that time it was noticed tome that she is no more. Thereafter I came out of the said roomand I informed to her father and mother about her death. Atthat time after receiving information it was revealed that theyappeared in sad condition. At that time, she informed to methat there was harassment to their daughter at the hands offamily members of her in-laws…”PW2Sunil Chandrakant Kulkarni is the brother of deceased Vaishali.Relevant portion of his evidence at Exhibit 56 is as under :“1...... Vaishali is my younger sister. In the year 1999, marriage of Vandana was performed. In marriage, she is given to Aurangabad. Marriage of Vaishali was performed with Ganesh Bhagwanrao Karhade…….2. My sister Vaishali is no more. On 26th July, 1996, marriage of Vaishali was performed. The said marriage was performed at Aurangabad. As per the talks 8 tolas golden ornaments, all expenses of the marriage with salankrat borne by us. After marriage, Vaishali went to reside in the house of Cri Appeal No. 209.2004-8- her husband at Ambad. In Ambad, he husband and her mother-in-law was residing. Ganesh has got one brother and 4 sisters. Marriages of the sisters of the Ganesh performed. At the time ofincident brother Ganesh was unmarried. Initially for about one month there was good treatment to my sister Vaishali. Thereafter Ganesh her mother-in-law Sunita, sister of Ganeshand her husband and sister of Ganesh Shaila and her husband started harassing to Vaishali. At that time, they started saying to Vaishali that at the time of marriage as per the talks 10 tolas golden ornaments have not been given to them. They said at that time, “Amhala Fesvile. Dusryachi Mulgi Keli Asti Tar Amhala Ek Lakh Rupai Hunda Milala Asta”. At that time, mother-in-law of Vaishali used to say to Vaishali that she is not able to wear saree. She also said that Vaishali is not serving to her. Her mother-in-law used to instigate to Ganesh who is her husband. Thereafter, Ganesh used to beat her. When Vaishali used to visit Georai at that time, she used to inform about the harassment caused to her. 3. Thereafter, Vaishali become pregnant. Even thereafter the harassment at the instance of above said persons was going to Vaishali. Thereafter Ganesh gave a kick on the stomach of Vaishali. Thereafter Vaishali was taken to the Dawakhana from Jalna for the purpose of abortion without her consent. There was abortion of Vaishali. Prior to abortion, they forced her to walk as well as she was taken through bullock-cart. Due to that,there were severe pains to Vaishali. If there is a male issue to Vaishali then he will not be able to perform second marriage and he will not get dowry of Rs. 1 lakh. Cri Appeal No. 209.2004-9- 4. On 5th January 1997, Ganesh, husband of Vaishali alongwith Vaishali and his sister Sunita and husband of Sunita came towards the house of my brother at Aurangabad. At that time, they said to my brother that as per the agreement gold was not given to them. At that time they said that they will not allowed Vaishali to reside along with Ganesh. At that time, theydirected to my brother to look after and maintain Vaishali. I came to know to that effect as I was present there, 15 days thereafter my brother, my cousin brother Ratnakar Kulkarni and Dilip Patil my cousin brother-in-law went to Ambad. In Ambad, there was no meeting of Ganesh to them. Thereafter my brother and the abovesaid persons went towards the house of Vishwasrao, Sunladevikar brother-in-law of Ganesh who is residing at Ambad. Elder sister of Ganesh is the wife of said Vishwasrao Gugladevikar. At that time my brother and other persons requested to said Vishwas not to harass to my sister and maintain to her. At that time, the reasons to inform to said Vishwas as he is the brother-in-law of Ganesh and he will convince to that effect to the said Ganesh. At that time, the saidVishwasrao informed that within 2-3 days alongwith Ganesh hewill come and will take Vaishali alongwith them. Thereafter they did not turn.5.Thereafter, on 11th February 1997, Vivek, his wife, sister Vandana alongwith Vaishali went to Ambad. At that time they requested to Ganesh and his family members to take Vaishali intheir house and not to harass to her. At that time, it was informed to my brother and other persons that as per the Cri Appeal No. 209.2004-10- agreement gold was not given to them and therefore they will not allow Vaishali in their house and accordingly, they driven my brother and other persons fro their house. Thereafter, Vaishali came to Georai. Vaishali always remain in tension. Shealways remains in worried condition. At that time, she was not taking the food in time and during whole night, she remains in wake up condition. 6. Incident of Vaishali taken place on 19th February, 1997.On that day, I was in Georai. I was present in agricultural land.At about 4 p.m., I returned towards the house from agriculturalland. At that time, my father informed to me that we have togo to Court. Thereafter, alongwith my father we went to Court.At about 5 p.m.,my neighbour Pralhad Patil came to Court. Heinformed to us to immediately come towards the house.Accordingly, we went towards the house. When we came nearthe house we saw full or rush near my house. After enteringinto the house, I saw my mother was weeping. Thereafter, Iwent towards inside room. At that time, I saw my sister inburning condition and she was dead…...PW3Mandakini Chandrakant Kulkarni, mother of deceased, isexamined at Exhibit 73. Her evidence is as under :“1.Vaishali was my daughter. On 26th July, 1996, marriageof Vaishali was performed. Her marriage was performed withGanesh Bhagwan Karhade. At the time of marriage it wasagreed to give 8 tolas Gold ornaments, two sides clothes, fare Cri Appeal No. 209.2004-11- of bus and besides that we have to also spend over the saidmarriage. The said marriage was performed in Utsav MangalKaryalaya, Aurangabad…... 2.…...After the marriage, Vaishali went to reside in her in-laws house at Ambad. Thereafter, four about 1 month shehappily resided in her in-laws house. Thereafter her husband,her mother-in-law, two sisters of her husband i.e. Shaila andSunita and their husbands started saying that at the time ofmarriage as per expectation gold ornaments have not beengiven to them. They insisted my daughter Vaishali to go to herparents house and bring more gold ornaments from them. Atthat time, they also used to say that if they would have performthe marriage of Ganesh with another girl then they would havereceived dowry of Rs. 1,00,000/-. By saying the above saidpersons started harassing and causing mental cruelty toVaishali. Vaishali when came to my house at that time sheinformed to me to that effect and therefore, I came to knowthat effect. Vaishali when came to my house at the time ofMangalagaur at that time she informed to me that effect. 3.In Ambad, Vaishali, her mother-in-law and her husbandused to reside. Two sisters of the husband of Vaishali alwaysused to visit her house at Ambad. At that time, their husbandsalso used to come alongwith them. After informing Vaishali, Ihave understanding to her. That after the marriage, such thingsused to happen. Thereafter Vaishali after some days becomepregnant. At that time, Ganesh do not want to have a child.The reason was that he did not like Vaishali. Ganesh always Cri Appeal No. 209.2004-12- used to quarrel with Vaishali. On one day, he gave a kick onthe stomach of Vaishali. Ganesh taken Vaishali throughbullock-kart and moved her. Due to the abovesaid reasonsblooding started to Vaishali. Thereafter, they taken Vaishali toJalna and in Jalna they have done the abortion of Vaishali. Icame to know to that effect when Vaishali was driven out ofthe house on 5th January, 1997 and brought her toAurangabad. 4. When Vaishali was brought to Aurangabad on 05-01-1997 at that time, she was brought by Ganesh Pradeep, Sunita,Umesh and Shaila. At that time, they will not allow Vaishali tocohabit with Ganesh. On that day, I was present inAurangabad. My husband was also present there. At that time,we were there as treatment was going on to my husband atAurangabad. Thereafter, for about 10 ti 15 dyas, we keepquited. 5.Thereafter my son Vivek, son-in-law, Deelip Patil andnephew Dr. Ratnakar Kulkarni went to Ambad. At that time,the abovesaid persons met to Vishwasrao Jogdladevikar who isbrother-in-law of Ganesh, sister of Ganesh given to thisVishwas Jogladevikar. At that time they requested toVishwasrao Jogladevikar to take Vaishali back to the house ofGanesh. At that time, they also requested to him to give propertreatment to Vaishali in the house of her in laws. At that time,the said Vishwas said to them that he will given understandingto Ganesh to that effect. At that time, he also informed that hewill take Vaishali from my house for about 10-2 dayas we Cri Appeal No. 209.2004-13- waited. Nobody came to take Vaishali to her in-laws house.Thereafter, my husband decided to send Vaishali to her in-lawshouse. 6.My son Vivek, his wife Smita, my elder daughterVandana alongwith Vaishali went to Ambad on 11th February,1997. they went to Ambad. On that day, I was at Georai. InAmbad, Vaishali as well as my son Vivek requested to takeVaishali back to her in-laws house. At that time, Vaishali alsoaksed to inform whether she has committed any mistake. Atthat time, she also repeatedly requested that she want to residein her in-laws house. At that time, Ganesh, his mohter, his twosisters Shaila and Sunita and their husbands Pradeep andUmesh were present there. They refused to take Vaishali backand they drove Vaishali and other persons out of the house.Thereafter, Vaishali again came back to Georai. As Vaishali wasdriven out of the house, therefore, due to that she mentallydisturbed. Due to that, she always thinking. Due to that shewas also not taking food and she was also not taking sleepproperly during night time. During that period, she infrightened condition used to woke up out of sleep.7.When Vaishali was in my house at that time sheinformed to me. She informed that when she was in thekitchen at that time her husband started both the buttons ofgas and went out of the kitchen locking the door and at thattime he informed to her to ignite the said gas-stove. At thattime, she also informed to me that after sometime, Ganeshopened the door of the kitchen and said to her, “if she want to Cri Appeal No. 209.2004-14- die then go to her parents house and die there. If she died herethen he will loose his service”. At that time, Vaishali informedto me that at that time it was actually tried to kill her. 8.Incident of Vaishali taken place on 19th February, 1997.On that day, I was present in my house at Georai. My husbandwas present in the house in the morning. On that day, my sonSunil had been to the agricultural and on 19.2.1997, in thenoon, we have taken a meal when after meal, we see there atthat time, the issue of Grahashobhika of February was in thehouse. Vaishal read the said issue. At that time, there wasinformation about the Swadhar Kendra in the saidGrahashobhika issue. At that time, Vaishali informed to methat she wants to write a letter to the said Swadhar Kendra. Atthat time, I told her to write a letter. Thereafter, she wrote aletter. Thereafter, she informed to me to that effect. At thattime, I did not saw the letter. She read over the contents to me.I saw the said letter. The same was written on the letter pad ofher father in red colour ink. The said letter is at Exh. 58.Vaishali in the said letter have written about the ill-treatmentand harassment which was to her in her in laws house. At thattime, Vaishali was inside the house. I was cleaning the house.While cleaning the house, I came in the courtyard of the house.When I was cleaning the courtyard of the house, at that time,lneighbour Prahlad Patil and other 2-3 children while runningcame towards my house. At that time, they informed to me thatfull of smoke is coming out of my house. At that time, theinformed to me that the smoke is coming from the backsideroom of my house. Immediately we rushed into the house. We Cri Appeal No. 209.2004-15- went towards the said room. The siad room was locked frominside. At that time, the said Pralhad Patil gave fist blows andkicks on the door of the said room. Due to that the kondaremoved from its place and due to that the door of the saidroom opened. At that time, the sull smoke came out of the saidroom from the said door. At that time, I saw Vaishali was inburn condition. She was lying down there. At that time therewas full of rush of people in the house. At that time, I informedto Pralhad Patil to bring my husband from the Court.Thereafter, Doctor came there and he saw the said Vaishali andthen declared her dead. At that time, neighbouring DoctorShinkhare came there who saw to the said Vaishali. 9.Vaishali due to harassment and illtreatment at the handsof the people from her in-laws was mentally disturbed and dueto that she poured kerosene on her person and set fire toherself and committed suicide. PW4Vivek Chandrakant Kulkarni, brother of deceased, at Exhibit78, deposed as under :“1.…..Vaishali was my younger sister. I am the eldest in thefamily. When there was engagement of Vaishali at that time, Iwas present. At that time, it was agreed that we have to give 8tolas gold. It was also agreed to spend on the clothes of brideand bridegroom by ys. It was also agreed to give utensils etc byus and it was agreed to spend over the said marriage by us.Ganesh is an Engineer and at that time he was serving in ZillaParishad at Ambad. At the time of engagement, there were Cri Appeal No. 209.2004-16- negotiation. At the time of marriage of Vaishali as agreed wehave spend on it. 2.After the marriage for about 1 month, there was propertreatment to Vaishali. Thereafter, harassment started to her. Atthat time, it was started saying that it was agreed to give 10tolas gold but only 8 tolas gold was given. It was also startedsaying that if the marriage of Ganesh would have performedwith another girl then he would have get Rs. 1 lakh as dowry.At that time, Ganesh, his mother, his sisters Sunita and Shailaand their husbands used to harass and used to say to thateffect. I came to know about harassment when Vaishali cameto her parents house. At that time, she informed to me to thateffect.... 3.Thereafter, Vaishali went to the side in her in-lawshouse. When Vaishali was residing in Ambad at that time shebecome pregnant. At that time, accused used to say to Vaishalithat if she gave birth to a male then there will be heir to thefamily and due to that there will be harassment to her.Thereafter, Ganesh gave a kick on the stomach of Vaishali. Atthat time, Ganesh forced her to walk and also forced her to sitin a bullock-cart and he moved to her through bullock-cart.Due to the abovesaid acts, there was bleeding to Vaishali.Thereafter, she was taken towards the hospital at Jalna andforcibly there wa her abortion. The same happen at the time ofend of December 1996. Thereafter, on 4th January, 1997,Ganesh brought Vaishali to my house at Aurangabad and atthat time, his two sisters i.e. Shaila and Sunita and their Cri Appeal No. 209.2004-17- husbands were alongwith him. At that time, they said to takeour sister and also said when she was brought to my house atthat time she informed to me about the incident of herabortion….4.Thereafter, myself, my cousin brother Dr. RatnakarKulkarni, and my cousin brother-in-law Deelip Patil went toAmbad. In Ambad, we went towards Advocate RamraoDeshmukh who is very close to us. At that time, PralhadsinghThakur friend of Ramrao also came there. At that time, wesend a message to Vishwasrao Jogdladevikar who is brother-in-law of Ganesh and called him towards the house of AdvocateRamrao Deshmukh. Accordingly, Vishwasrao Jogladevikarcame there. At that time, we in detail informed to VishwasraoJogladeviakr. At that time, also informed to him how the saidVaishali was brought on 5th January 1997 to my house. At thattime, Vishwas Jogladevikar said that he also came to know toall the women are looking after the family business. At thattime, he also told that within 2-3 days he will send Ganesh tobring Vaishali back to his house. Thereafter, for some days, wewaited but nobody turn. 5.Thereafter, on 11th February, 1997, myself, my wife, andVaishali went to Ambad. We went towards the house ofGanesh. At that time, Ganesh, his mother, Shaila and Sunitaand their husbands were present in the house. At that time,they drove from the house and they did not allow us to enterinto the house. Thereafter, we returned from Ambad to Georai.Due to the abovesaid incident of Ambad, the said Vaishali was Cri Appeal No. 209.2004-18- mentally disturbed. Due to that, the said Vaishali was nottaking food and always remain in disturbed condition.Thereafter, from Georai, I went to Aurangabad. 6.Thereafter, on 19th August, 1997, I received telephoniccall from my brother Sunil. At that time, he informed to me ontelephone that Vaishali set fire to herself and committedsuicide. PW5Dr. Vijay Gopikisan Sikchi - Autopsy Surgeon, at Exhibit 79deposed that he conducted postmortem on 20.02.1997 in themorning at 7 a.m.. After deposing about external and internalinjuries noticed by him, he gave opinion that the probablecause of death is due to cardio respiratory failure due toperipheril circulatory failure due to 100% superficial to deepburn. He identified the postmortem report to be at Exhibit 80.PW6Kalpana Milind Khade, friend of deceased, at Exhibit 84,deposed as under :“1.….I am knowing Vaishali Chandrakant Kulkarnir. I amknowing to her as hse is my friend since childhood. I wasresiding in Saraswati Colony, Georai. Vaishali was also residingin the same colony. Myself and Vaishali studied together upto10th standard. In 11th and 12th standard, myself and as well asVaishali were in the same collage but our side were different. 2.Marriage of Vaishali was performed in July 1996. Inmarriage, she was given in Ambad. At the time of marriage, for Cri Appeal No. 209.2004-19- one day, I came in order to attend her marriage. Thereafter, atthe time of Diwali, I again came at that time, there wasmeeting of me and Vaishali. At that time, she informed to methat family members of her in-laws are harassing to her. At thattime, she informed to me that they are insisting in order tobring 2 tolas gold from her parents. At that time, I asked her asto whether she informed to her parents to that effect. At thattime, she informed to me that the parents are knowing to thateffect. At that time I came to Georai from Latur and I wasstudying in 3rd year of my M.B.B.S.3.Thereafter, in February, 1997, I again came to Georai. Atthat time, there was meeting of me and Vaishali. At that time,she informed to me that harassment is continued to her. Shealso informed to me that she is not taken to her in-laws house.At that time, she also informed to me that there was forciblyabortion to her. At that time, I was suppose to start my internalship. Thereafter, on 4th February, 19997, my internalshipstarted and I got posting at Beed. 4.I am knowing regarding the incident of Vaishali. Thesame taken place on 19.02.1997. At that time, I came to knowthat Vaishali poured kerosene on her person and set fire toherself. Police have recorded my statement regarding theincident of Vaishali….PW7Pralhad Sahebrao Patil, neighbourer of deceased is examined atExhibit 85. Relevant portion of his evidence is as under : Cri Appeal No. 209.2004-20- “1.…...Incident of Vaishali taken place on 19.02.1997. Onthat day, after payment I was returning towards the house. Atthat time, I saw smoke was coming out of the northern sideroom of the bunglow of Chandrakantrao Kulkarni. Time was atabout 4-4.30 p.m. At that time, mother of Vaishali was cleaningin the varanda of the house. At that time, I informed to her thatsmoke is coming out of her house. Immediately, myself andmother of Vaishali rushed towards the said room. The door ofthe said room was closed from inside. At that time, we tried toopen the said door and for that purpose, gave a kick on it anddue to that upper side obstruction removed from its place andthe door of the room was opened. At that time due to that fullof smoke came out of the door of the said room. At that time, Isaw there and came to know that Vaishali was fallen down andwas dead.”PW8Ramrao Dattatraya Deshmukh, relative of deceased, isexamined at Exhibit 88. PW9Dr. Jyoti Magan Kalamkar, Medical Practitioner, who hadconducted abortion of deceased Vaishali in December 1996.Relevant portion of her evidence is as under:“1.…..I am having hospital by name Sushrusha Hospital. Iam M.D. D.G.O.2.On 24.12.1996, Vaishali Ganesh Karhade was admittedin my hospital. She was admitted in my hospital as she waspregnant and there was bleeding. As ther ws bleeding,therefore, there was her sonography. After sonography, it was Cri Appeal No. 209.2004-21- found that fetus was dead and the same was 14 weeks old. Atthat time, I advised to them for curetine. There are so manyreasons for the purpose of missed abortion. It is one of thepossibility that if the kick is given on the stomach of thepregnant woman then the trauma is developed and due to that,there is possibility of missed visible injury. Discharge cardshown to me is in my own handwriting. In the said card, I havementioned about the date of admission of the said Vaishali aswell as her discharge from my hospital. The contents of thesaid card are true and correct. The same is at Exh. 91.3.Police in connection of this case made inquiry with me.At that time, I have one letter to the police stating that whichtreatment I have provided to her when she was admitted in myhospital. The same was in writing informed by me. The saidletter now shown to me is the same. It bears my signature. Thecontents were written as per my instructions. Contents are trueand correct. The same is at Exh. 92. PW10Parshuram Dhote is the handwriting expert.PW11PW Pandit Kendre is the Investigating Officer.PW12Rajendra Deshmukh is the first Investigating Officer.ANALYSIS10.Including present appellant husband, in all six accused werechargesheeted and tried for commission of offence punishable under Cri Appeal No. 209.2004-22- Sections 498-A, 304-B, 313 r/w 34 of IPC. Learned trial Judge, oncomplete appreciation, already acquitted accused nos. 2 to 6 from allthe charges and even present appellant husband is acquitted fromcharge of 304-B IPC, but is held guilty, and so convicted for offenceunder Sections 498-A and 511 r/w of 313 IPC. 11.On going through the record, it transpires that case ofprosecution is rested on the evidence of in all 12 witnesses. Here,crucial evidence is of two brothers, out of whom, PW2 Sunil is theinformant and PW3 Mandakini is the mother of deceased. Otherwitnesses include neighbour, so-called friend of deceased, medicalexperts, pancha to spot panchanama, handwriting expert and theInvestigating Officer. Charge under Section 498-A IPC :12.PW2 informant Sunil, as regards to cruelty is concerned, hasdeposed in para 2 that, Ganesh, his mother, sister Sunita and herhusband, another sister Shaila and her husband “started harassing”Vaishali saying that they are cheated and 10 tola gold ornament wasnot given. According to him, mother-in-law used to say that she isunable to wear saree; she is not serving her; mother-in-law instigatedher husband and thereafter he beat her. Cri Appeal No. 209.2004-23- 13.PW3 Mandakini, mother of deceased, in her substantiveevidence at Exhibit 73 deposed that, after one month, husband,mother-in-law, two sisters and their husbands started saying that asper expectations, gold ornaments have not been given and theyinsisted Vaishali to go her parents’ house and bring more gold. Bysaying that had they performed marriage of Ganesh with another girl,they would have received dowry of Rs.1,00,000/-, they wereharassing her and causing mental cruelty. 14.PW4 Vivek, elder brother of deceased, in his substantiveevidence at Exhibit 78 deposed that after marriage, for about onemonth, there was proper treatment to Vaishali. Thereafter harassmentstarted. He said that, it was agreed to give 10 tola gold but only 8 tolawas given and it was also stated that if marriage of Ganesh wouldhave been performed with another girl, they would have gotRs.1,0,000- as dowry and this was said by husband, his mother, hissisters Sunita and Shaila, and their husbands used to harass.Therefore, above is the oral account in support of charge ofSection 498-A IPC, narrated by family members. Cri Appeal No. 209.2004-24- 15.PW6 Kalpana, close friend of deceased, who is examined atExhibit 84, deposed that when she met deceased at the time ofDiwali, at that time deceased told that family members of her in-lawsare harassing her and insisting her to bring 2 tola gold. Even inFebruary 1997, she informed that harassment is continued. 16.Likewise, PW8 Ramrao, an acquaintance and friend ofdeceased’s father in his evidence at Exhibit 88 deposed that, oncedeceased had come to his house while paying visit to daughter ofVishwas Kulkarni to go to a beautician. At that time deceasedinformed that there was harassment for less gold. She informed thathusband beat and mother-in-law pulled her cheeks. Summation of charge of Section 498-A :17.On careful and meticulous re-appreciation of above evidence, itis patently emerging that both brothers and mother are merely usingphrase that there was “harassment” for not giving gold. It is pertinentto note that, such close relatives of deceased are merely speakingabout harassment without specifying form or nature of harassment.Here there are allegations against husband, mother-in-law, twosisters-in-law and their husbands also. However, distinct role of noneof them has been defined by any of the two brothers or their mother. Cri Appeal No. 209.2004-25- Brothers are not uttering about mental cruelty as alleged by mother.Thus, witnesses are not consistent. Though there are allegations ofharassment for not giving quantity of gold as agreed, however, thereis no evidence about any previous talks during which it was settledthat 10 tola gold was agreed and only 8 tola was given. PW8, whowas party to the process of match making and settling the marriage,has not uttered about any agreement of giving 10 tola gold.Therefore, there is no evidence for namesake as regards to agreementof giving 10 tola gold by way of dowry. Though brother-informantand friend of deceased PW6 have deposed about hearing fromdeceased that husband used to beat her, when such instances tookplace is not stated by either of them. It is not a case of prosecutionthat in the backdrop of demand of gold, husband beat her, as neitherof the witnesses specify about it. 18.There are series of judgments wherein Hon’ble Apex Court hasrepeatedly observed and held that in case of general, vague andomnibus allegations without specifying role or giving specificinstances of cruelty, charge of Section 498-A would not automaticallyget attracted. Such observations are reflected in Kans Raj v. State ofPunjab and others [Appeal (crl.) 688-90 of 1993 decided by theHon’ble Apex Court on 26.04.2000]; State of Andhra Pradesh v. M. Cri Appeal No. 209.2004-26- Madhusudhan Rao (2008) 15 SCC 582; Neelu Chopra and another v.Bharti (2009) 10 SCC 184; Geeta Mehrotra Vs. State of U.P. (2012)10 SCC 741; Bhaskar Lal Sharma and Anr. v. Monica and Ors AIR2014 SC (Supp) 1310; K. Subba Rao v. The State of Telangana ;(2018) 14 SCC 452 wherein, as to what constitutes offence underSection 498-A and when it can be said to be made out has been dealtand discussed. Even very recently, the Hon’ble Apex Court, in the case ofNaresh Kumar v. State of Haryana (2024) 3 SCC 573 observed that,to constitute offence of cruelty, there has to be incessant orcontinuous form of cruelty. Likewise, in the case of Yashodeep Bisanrao Vadode v. State ofMaharashtra (2024) SCC Online SC 2989, the Hon’ble Apex Courtobserved that, by way of evidence, specific acts and role of accusedhas to be demonstrated for attracting Section 498-A IPC. Again, in the most recent case of Dara Lakshmi Narayana andothers v. State of Telangana and another 2024 SCC Online SC 3682,the Hon’ble Apex Court obseved, “mere reference to the names offamily members in a criminal case arising out of matrimonial dispute, Cri Appeal No. 209.2004-27- without specific allegation, indicating their active involvement shouldbe nipped in the bud”. 19.Therefore, in the line of above settled precedents, here it isreiterated that both brothers and mother as well as close friend ofdeceased, whose evidence is discussed above, are merely speakingabout harassment to deceased. None of them has elaborated or giveninstances or nature of harassment. Marriage is of 1996. Deceased wasback with her parents and brother since 05.01.1997. thoughunfortunately she committed suicide on 19.02.1997, learned trialcourt has already acquitted all accused including husband fromcharge of Section 304 IPC. In the light of above discussion, here there is fragile and weakevidence in support of charge of Section 498-A IPC. Charge under Section 511 r/w 313 IPC :20.Section 511 and Section 313 of IPC, for ready reference, arereproduced as under :“Section 511. Punishment for attempting to commitoffences punishable with imprisonment for life or other Cri Appeal No. 209.2004-28- imprisonment.- Whoever attempts to commit an offencepunishable by this Code with imprisonment for life orimprisonment, or to cause such an offence to becommitted, and in such attempt does any act towardsthe commission of the offence, shall where no expressprovision is made by this Code for the punishment ofsuch attempt, be punished with imprisonment of anydescription provided for the offence, for a terms whichmay extend to one-half of the imprisonment for life or,as the case may be, one-half of the longest term ofimprisonment provided for that offence, or with suchfine as is provided for the offence, or with both.”“Section 313. Causing miscarriage without woman’sconsent.- Whoever commits the offence defined in thelast preceding section without the consent of thewoman, whether the woman is quick with child or not,shall be punished with imprisonment for life, or withimprisonment of either description for a term whichmay extend to ten years, and shall also be liable tofine.” 21.Here, in support of above charge, case of prosecution is that,pregnancy of Vaishali was terminated against her wish and withouther consent. There are also allegations by brothers and mother thathusband gave kick on the stomach during her pregnancy, resultinginto bleeding and further resulting into abortion. In support of such Cri Appeal No. 209.2004-29- charge, apart from oral evidence of brothers and mother, prosecutionis also relying on evidence of PW9 Dr. Jyoti, a gynecologist, who wastreating deceased since her pregnancy till her abortion. This court hasalready reproduced examination-in-chief of PW9 in aforesaid para.Now, below is the answers given by this medical expert in cross.In cross PW9 admitted that carrying out abortion withoutconsent of married or unmarried woman is an offence. That, shebeing doctor of repute, never conducts illegal abortions in herhospital. She admitted that while carrying out curetine, writtenconsent was obtained form Vaishali and her husband Ganesh for thatpurpose. She admitted that at that time, Vaishali did not inform herthat there was any violence on her body. Then, in para 5, sheanswered that Vaishali prior to 24.12.1996 used to visit her hospitalfor various tests and used to take medicines from her and she furtheradmitted that since prior to 24.12.1996 she was knowing Vaishali andher husband Ganesh. That Vaishali obeyed instructions and tookmedicines prescribed by her. Para 6 contains general questions on thepoint of types of abortion. In para 7, she answered that in Exhibit 92,she opined that foetus was already dead and that if it was not takenout, there was danger to mother’s life and that such procedure iscalled as curetine. She further answered and admitted that in present Cri Appeal No. 209.2004-30- case, it was absolutely necessary to perform curetine and therefore,Vaishali and her husband consented for the said purpose andtherefore, she did the same.22.In the light of above evidence of PW9, it is evident that,deceased underwent curetine as foetus was dead. PW9 in cross hascandidly answered that she had obtained consent of Vaishali as wellas her husband. She further admitted that Vaishali did not inform thatthere was any violence on her body. Therefore, such prosecution’sown witness falsifies the versions of brothers and mother aboutbleeding due to kick by appellant husband. The very theory ofperforming abortion without her consent gets hit at the bottom itselfin view of answer given by PW9 that, procedure was done withconsent of Vaishali and rather, there being danger to the life ofmother in view of dead foetus. Taking above relevant testimony into account as regards tocharge of Section 511 and 313 IPC is concerned, even said chargefails. 23.To sum up, here, firstly, there is no evidence that there wasprior agreement of giving 10 tola gold, but only 8 tola being given, Cri Appeal No. 209.2004-31- resulting into discontent of husband and in-laws. Secondly, as regardsto Section 498-A is concerned, allegations by family members areregarding harassment without specifying or elaborating its form andwho amongst six accused inflicted it and when. Witnesses are merelyspeaking about hearing from deceased that husband beat, but onwhat count and when such instances took place is not stated byanyone. Visit of Vaishali to her parents’ house after marriage is at thetime of Mangalagaur and thereafter at the time of Diwali. Thus, thereare only two visits. Brother in cross has admitted that husbandaccompanied for Diwali and this festival was celebrated. Deceasedwas back in the company of parents and brother since 05.01.1997.She met unfortunate death on 19.02.1997 while in the house and incompany of parents and brother. 24.Likewise, evidence of PW9, an independent medical expert,more particularly her cross, inflicts severe dent to the prosecutionstory regarding commission of offence under Section 511 r/w 313 ofIPC. Hence, for above reasons, both charges fail. 25.Perused the judgment under challenge. It is noticed thatlearned trial Judge has, on same set of evidence, acquitted all in-lawsfrom all the charges. While recording guilt of husband alone,
Decision
Cri Appeal No. 209.2004-32- availability of legal requirements for attracting Section 498-A as wellas 511 r/w 313 of IPC has not been meticulously tested from theavailable evidence. Hence, for above reasons, interference is calledfor. Accordingly, following order is passed :ORDERI.The appeal is allowed.II.The conviction awarded to the appellant by learned IInd Ad-hocAdditional Sessions Judge, Beed in Session Case No. 90 of 1997under Sections 498-A and 511 r/w 313 of IPC on 10.03.2004stands quashed and set aside.III.The appellant stands acquitted of the offence punishable underSections 498-A and 511 r/w 313 of IPC.IV.The bail bonds of the appellant stand cancelled.V.Fine amount deposited, if any, be refunded to the appellant afterthe statutory period.VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre