High Court

Legal Reasoning

{1} CRI APPEAL 409 OF 2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 409 OF 20041)Bansilal S/o Kautik MaliAge: 25 years, Occu.: Business/Panshop(As per Court order dated 13-08-2024, appeal is abated against appellant no.1)2)Pramelabai W/o Kautik MaliAge: 35 years, Occu.: Labourer3)Narmadabai W/o Kautik MaliAge: 49 years, Occu.: Labourer4)Ravindra S/o Kautik MaliAge: 23 years, Occu.: Labourer(As per Court order dated 18-11-2024, appeal is abated against appellant no.4)..Appellants (Orig. Accused) Versus.The State of Maharashtra ..Respondent …Advocate for Appellants : Mr.C.C.Deshpande h/f. Mr. C.R.Deshpande, APP for Respondent : Mr.K.K.Naik ... CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 12 DECEMBER, 2024 PRONOUNCED ON : 03 JANUARY, 2025 JUDGMENT :- 1. By invoking Section 374 of the Code of Criminal Procedure, {2} CRI APPEAL 409 OF 2004original convicts for offence under Section 498-A, 306, 304-B readwith Section 34 of the Indian Penal Code (IPC) and under Section 4of the Dowry Prohibition Act, are taking exception to the judgmentand order passed by learned 2nd Ad-hoc Assistant Sessions Judge,Dhule dated 14-06-2004.PROSECUTION CASE IN BRIEF 2.In all five accused were chargesheeted by Songir Police Station,Tq. and Dist. Dhule, which was inconsequence to Crime No.53 of2002 registered by informant PW2 Bhagwat. In short, charge wasframed on accusations that five accused, who were husband and in-laws of deceased Ashabai subjected her to harassment and ill-treatment in the backdrop of demand of money. Ashabai getting fedup of the same, committed suicide by jumping in the well. As it wasdowry demand and death had taken place within seven years ofmarriage, appellants were indicted of charge at exh.3 for the offenceunder Section 498-A read with 34, 304-B read with 34 and 306 readwith 34 of the Indian Penal Code (IPC).Trial was conducted by 2nd Ad-hoc Assistant Sessions Judge,Dhule vide Sessions Case No.167 of 2002 and learned trial Courtappreciated evidence of in all thirteen witnesses and also sought {3} CRI APPEAL 409 OF 2004reliance on documentary evidence. After appreciating oral anddocumentary evidence, learned trial Court accepted prosecution case,but only against accused nos.1 to 4 and by judgment and order dated14-06-2004, convicted accused nos.1 to 4 for offence under Sections498-A, 306, 304-B read with Section 34 of the IPC and under Section4 of the Dowry Prohibition Act. Accused no.5 came to be acquitted. Being aggrieved by above judgment and order, appeal has beenpreferred. SUBMISSIONSOn behalf of appellants :3. Learned Counsel for appellants pointed out that there is falseimplication. That case of prosecution has not been proved beyondreasonable doubt. According to him, there are general, vague andomnibus allegations are levelled. That witnesses are not consistentor supporting to each other. That their testimonies are full ofmaterial omissions, contradictions and variances. That there is noconvincing or legally acceptable evidence, however, learned trialCourt has accepted prosecution case. At the outset, learned Counsel for the appellants pointed outthat out of five accused, four were convicted, but during pendency ofappeal, appellant nos.1 and 4 expired and as such matter stood {4} CRI APPEAL 409 OF 2004abated against them. He further pointed out that he receivedinformation that appellant no.3 Narmadabai Kautik Mali is also nomore, however, he could not get her death certificate. But when theinformation is sought from Police, they got information fromGrampanchayat Kapadane, Tq. and Dist.Dhule that said appellantno.3 Narmadabai has expired, but there is no entry in the register tothat extent. According to him, now only surviving appellant no.2Pramelabai Kautik Mali is sister-in-law of deceased and she wasalready married, however, on account of divorce, she was put-upwith parents’ place. That merely because she was present in thehouse, she was named. That no specific allegations are raisedagainst her nor her role is crystallized by any of the witnesses andhence, he prays for allowing the appeal. On behalf of State :4. Learned APP objected on the ground that witnesses wereconsistent. That they were corroborated each other. That there wasdemand of money for setting up a Pan Stall. That for meeting suchdemand, there was cruelty and harassment. That only because ofharassment, deceased Ashabai committed suicide by jumping in thewell. That suicidal death is within seven years of marriage. That {5} CRI APPEAL 409 OF 2004offence under Section 304 got attracted. Thus, according to learnedAPP, learned trial Court has correctly appreciated the availableevidence and has come to the right conclusion. Therefore, he praysto dismiss the appeal for want of merits. STATUS AND ROLE OF PROSECUTION WITNESSES5.In support of its case, prosecution has examined as many asthirteen witnesses. The sum and substance of their evidence is asunder : PW1 Bhagwan Daga Pawar is Police Patil of village Kapadane. Hedeposed at exh.15 as under :1) Since 1-9-2000 I am working as Police Patil of village Kapadane tilltoday. I know the accused Nos. 1 to 5 before the court. They areresident of Kapadane village. Deceased Ashabai was the wife of theaccused No. 1 Bansilal Mali. On 22-6-2002 at about 9 a.m. I wasproceeding from my house towards the S.T. Stand. I noticed thecrowd near the well of water supply near the river of my village. Thepeople told me that, there is one dead body of a female in the well.Bandu Patil Dy. Sarpanch of my village, Naval Damu Mali, Bapu driverand Mandabai Shivram Mali were amongst the crowd. With the helpof the iron hooks known (Biladi) and with the help of abovementioned persons the dead body of the woman floating in the wellwas taken out of the well. Mandabal told me that, the dead bodyremoved from the well was of Ashabai w/o accused No.1. Thereafter Iwent to Songir Police Station in order to lodge First InformationReport, The police recorded First Information Report as stated by me. {6} CRI APPEAL 409 OF 2004The contents were read over to me. Thereafter I signed the said FirstInformation Report. Now I see the same before Court. It bears mysignature. The contents are true and correct. It is marked at Exh.16.”PW2 Bhagwat Mahadu Mali is father of deceased. At exh.17, hedeposed as under :“I have 4 daughters. My second daughter Ramabai has given inmarriage at Kapadane. Deceased Ashabai was the wife of accusedNo. 1. She is my fourth daughter. The marriage of Ashabai wassolemnized with accused No. 1 on 15 June 2001 at village Kapadane. 2.The accused treated Ashabai properly till the period of visit ofAshabai to my house for second time after her marriage. The accusedNo.1 thereafter started demanding Rs.15000/- to expand his shopand to purchase the material for the pan shop from deceased Ashabai.They started harassing her and assaulting the deceased Ashabai forthe said demand. Third time I went to the house of accused atKapadane. At that time my daughter Ashabai told me about thedemand of the accused and harassment subjected to her by theaccused. I also advised my daughter and the accused and told herthat, I am not in a position to fulfil the demand of the accused. At thattime I did not brought my daughter with me. At that time, theaccused told me that, after the ceremonies of annual deathanniversary of uncle of accused No.1 they will sent my daughterAshabai to my house for the eve of Akshay Tritiya. My daughtersAshabai and Ramabai came to my house after 10 to 12 days afterAkshay Tritiya. I had talk with Ashabai at that time. The deceasedAshabai told me at that time that, the accused are demandingRs.15,000/- for his panshop and that they are harassing her andadministering the beatings to her on the said count. I advised mydaughter Ashabai and expressed my inability to fulfill the demand ofthe accused. Thereafter, I sent my both daughters to the house of {7} CRI APPEAL 409 OF 2004their in-laws. 3.On 22-6-2002 at about 9 a.m. I was in house at villagePaladhi. At that time I received a phone call of Subhash Nimba Mali ofKapadane. He told me that. Ashabai fall in the well and died.Thereafter myself along with my relatives went to Kapadane. There Icame to know that, my daughter was removed to Civil Hospital Dhule,and therefore I went there. I saw the dead body of my daughterAshabai. Her hands were bent inside. Her face was blackish. The postmortem was conducted in the Civil Hospital Dhule. Thereafter thedead body was handed over to us. We brought the dead body toKapadane village. The dead body was cremated at village Kapadane.The same was performed at about 4 to 4.30 p.m. on that day.Thereafter I went to Songir police station. I lodged the complaint withthe police.” PW3 Vimal w/o Bhagwat Mali is mother of the deceased. Shedeposed at exh.19 as under :“I had 5 daughters. Out of them Ramabai and Ashabai weregiven in marriage at Kapadane. The marriage of Ashabai wasperformed with accused No.1. We met the expenses of Rs. 40,000/-for her marriage. After the marriage, Ashabai went to her husband'shouse at Kapadane. The accused 2 to 4 were also residing withaccused No. 1 at that time. The accused treated Ashabai properly forabout two religious ceremonies known as "Mul". Thereafter accusedstarted demanding Rs.15,000/- from Ashabai. The accused used todemand the said amount for the purchase of material of the panshop.The accused used to subject Ashabai to physical and mental cruelty,on the ground of said demand. My daughter Ashabai when used tovisit my house, she used to tell me about the demand of Rs. 15,000/-by the accused and the harassment subjected to her by the accused.Before the day of Akshay Tritiya, my husband went to the house of {8} CRI APPEAL 409 OF 2004accused to bring Ashabai to my house. At that time, the accused toldmy husband that, they will send my daughter Ashabai after theannual death anniversary of the uncle of Accused no. 1. After AkshayTritiya about 15 days latter, Ashabai with my another daughterRamabai came to my house. Ashabai started weeping as she came tomy house. My daughter Ashabai told me that, accused No.1 used tobeat her and subject her to harassment on the ground of demand ofRs. 15,000/-. My daughters Ramabai and Ashabai stayed at my housefor about 4 days and thereafter I sent them to their house of in-laws. Itold Ashabai that, we are not in a position to fulfil the demand ofmoney of the accused.2)On 22-6-2002 at about 9 a.m. when I was in my house, therewas a phone call from Kapadane, of Subhash Nimba Mali. He toldthat, Ashabai was found in the well. Therefore, we along with ourrelatives went to Kapadane. There we came to know that, Ashabaiwas removed to Dhule. Therefore we came to Dhule. I saw mydaughter in the hospital, she was dead.” PW4 Kashinath Daulat Mali is cousin brother of informant. Hedeposed at exh.21 as under :“The complainant is my cousin brother. PW-3 is the wife ofPW-2. Deceased Ashabai was the daughter of PW-2. The marriage ofAshabai was solemnized with accused No.1 at village Kapadane,about 2 years back. The marriage was solemnized at Kapadane andmy brother PW-2 spent Rs. 40,000/- for the marriage of Ashabai. Thesecond daughter of PW-2 is also given in marriage at Kapadane. Afterthe marriage, Ashabai went to the house of her husband at villageKapadane. The accused Nos. 2, 3 and 4 were also residing withaccused No. 1 at that time. Ashabai was visiting her parents houseafter her marriage. She used to meet me at that time. The accusedtreated the complainant properly for 2 years and thereafter started {9} CRI APPEAL 409 OF 2004demanding Rs. 15,000/- from Ashabai. The accused used to insistAshabai to bring Rs. 15,000/- from her parents for panshop business,and that, they used to harass her, as the demand was not fulfilled. Thedeceased Ashabai told me about the same, when she met me. I usedto coax the deceased Ashabai saying that, she is married and used tosend her to her husband's house after advice. The incident took placeabout 1 ½ years back. On that day at about 9 to 10 a.m. I was in myhouse. At that time PW-2 came to my house. She told me that a phonecall was received from Kapadane, saying that, his daughter Ashabaifell in the well and died. He also told me that, we have to go toKapadane. Thereafter we booked a matador and myself, PW-2 and 3and some people of our village went to Kapadane. There we came toknow that, Ashabai was removed to Civil Hospital Dhule. I stayed atKapadane, and my brother PW-2 went to Dhule. At about 2 to 2.30p.m. the dead body of Ashabai was brought from Civil Hospital Dhuleat Kapadane. The dead body of Ashabai was cremated at Kapadanethereafter. Thereafter my brother went to Songir police station andlodged the complaint with the police.”PW5 Ramabai w/o Rajendra Mali is sister of deceased. At exh.22 shedeposed as under :“ The complainant PW-2 is my father and PW-3 is my mother.PW-4 is my uncle. Ashabali was my younger sister. About 3 years backthe marriage of deceased Ashabai was solemnized. The marriage ofAshabai was solemnized with accused No. 1, at village Kapadane, butI do not know his name. I know accused Nos. 1 to 5 before the court.Accused No.2 is the sister of accused No.1. The accused No. 3 is themother of complainant. The accused No.4 is the brother of accusedNo. 1. The accused No. 2 and 3 and myself also used to go to the landof accused No. 5 for work and therefore I know him.2) After the marriage Ashabai went to her husband's house at {10} CRI APPEAL 409 OF 2004Kapadane. The accused Nos. 2 to 4 were residing with accused No. 1at that time. After the marriage, Ashabai and her husband once cameto my house for meal. The accused 1 to 4 treated Ashabai properly till2 to 3 religious ceremonies known as “Mul". The accused Nos. 1 to 4used to demand Rs. 16,000/- from Ashabai for panshop of accusedNo. 1. They also used to harras her on the said count. The accusedNos. 1 to 4 also used to threaten her over her life and injuries to limbsand legs. The female members residing in the lane of the house ofaccused No.1 used to tell me about the harassment subjected toAshabai by accused Nos.1 to 4 when they used to meet me in the fieldat work. My father came to Kapadane in order to bring myself andAshabai for Akshay Tritiya. At that time, in my house and in the houseof Ashabai also there were religious ceremony of death anniversary ofour relative, and therefore we were not went to the house of ourfather at that time. After 8 days later of Akshay Tritiya, myself andAshabai went to our father's house at Paladhi. At that time, Ashabaitold myself, my parents, uncle and his wife that, the accused Nos. 1 to4 are demanding Rs. 15,000/- from Ashabai and that, they aremaltreating her on the said count. She also told us that, the accusedthreatened her saying that, in case she failed to bring the said amountfrom her parents they will not allow Ashabai to reside in their house.We resided for about 8 days at our parents house, and my parentsgave myself and Ashabai Garments and we were sent to our parentshouse.3) On 22-6-2002 at about 6 a.m. the accused No. 3 Narmadabai cameto my house. She enquired with me as to whether Ashabai has cameto my house. I told her that, she has not come to my house. I told myin-laws that, my sister Ashabai is not in the house of accused Nos. 1 to4, and asked them to enquire. Some boys told me that, Ashabai fell inthe well behind Mahadeo Temple and that, the slippers are also lyingnear the well. Thereafter myself, my in laws and some persons of thelane went near the well. I noticed the pair of slippers near the well. I {11} CRI APPEAL 409 OF 2004identify the said slippers. The same were of my sister Ashabai. Thepair of slippers is marked as Article No.1. The dead body of Ashabaiwas lifted outside with the help of hooks known as (Biladi), outsidethe well. I identified the dead body of Ashabai. Thereafter the deadbody was removed to Civil Hospital, Dhule. The dead body wasbrought to Kapadane, after post mortem. The dead body wascremated at Kapadane. Thereafter my father went to Songir policestation and lodged the complaint.”PW6 Pandit Vanji Mali is pancha to inquest panchanama exh.25. PW7 Mandabai Shivram Mali is resident of the same village. Shedeposed at exh.26 as under :“I know the accused Nos. 1 to 5 before the court. They are resident ofKapadane. I also know deceased Ashabai w/o. accused No. 1. I alsoknow Ramabai the elder sister of deceased Ashabai. Ramabai isresident of Kapadane. The parents of Ashabai are resident of Paladhi,Tal. Dharangaon, Dist. Jalgaon. The accused No. 1 is the husband ofdeceased Ashabai. The accused No. 12 is sister of accused No. 1. Theaccused Nos. 3 and 4 are mother and brother of accused No. 1.Ashabai was cohabiting with accused 1 to 4. The accused treatedAshabai properly till the first religious ceremony known as "Mul". Theaccused 1 to 4 thereafter started insisting Ashabai to bring Rs.15,000/- from her parents. The accused assaulted Ashabai andsubjected her to cruelty on that count. I also know PW2 complainant.I met PW2 when he visited Kapadane. He told me that, the accusedare demanding Rs.15,000 from him, for panshop, and that he isunable to fulfil their Demand as he suffered a paralytic attack. Healso told me that, he is requesting the accused and that, they are notin a mood to listen the same. Thereafter, I went to the house ofaccused nos.1 to 4 in order to advice them. I told them that, am {12} CRI APPEAL 409 OF 2004elected from Ward No.3, and asked them as to why they are harassingAshabai . Ashabai used to tell me that, the accused are harassing herseverally, saying that, "Atyabai te malal Pharach Tras Detat". AfterAkshay Tritiya Ramabai and Ashabai went to their father's house.After 8 to 10 days, they returned to their husbands house. ThereafterAshabai met on the well when I was there to bring the water. Ashabaitold me that, the accused Nos. 1 to 4 are harassing her severely, as shefailed to bring Rs. 15,000/- from her parents, and requested me tovisit her house. Accordingly on 13-6-2002 I went to the house ofAshabai. I told the accused Nos. 1 to 4 not to harass Ashabai, but theytold me that, it is their domestic matter and that, if you are elected dothe work outside. I again enquired Ashabai as to why the accused areharassing her. She told me that, the accused Nos. 1 to 4 alongwithaccused No. 5 are insisting for the marriage of her sister Bharati, aged15 years, with the son of accused No. 5. She also told me that, she didnot want Bharati should be given to the son of accused No. 5 as hewas aged 25 years and mentally sick. The accused No. 5 instigate theaccused Nos. 1 to 4 on 21-6-2002 at about 8 to 8.30 p.m. and told theaccused 1 to 4 saying that, kill Ashabai or throw her in the well. I waspresent at that time in the courtyard of the house of Sakhawarbai,who is residing just near the house of accused Nos. 1 to 4. ThereafterI went to my house.2) On 22-6-2002 the people in the village told me that, Ashabai is notthere in the house of accused Nos. 1 to 4. The people told me that,near the well the slippers are lying. Therefore I Went to the well nearthe river behind Mahadeo temple. I noticed one while slipper pairnear the well. I can identify the slippers if shown to me. These are theslippers I saw near the well. The same are of Ashabai. The same are atarticle No. 1. The dead body was lifted upto water level with the helpof hook, and thereafter it was lifted and brought out with the help ofcot. I identify the dead body, it was of Ashabai w/o accused No. 1.Thereafter the father of Ashabai went to Songir Police station and {13} CRI APPEAL 409 OF 2004lodged the complaint.”PW8 Sakhwarbai Dattatraya Mali is a neighbour. She deposed atexh.28 as under :1) I know the accused in this case. They are residing near my house. Iwas also knowing deceased Ashabai. The accused No. 1 is thehusband of deceased Ashabai. Accused No. 2 is the sister of accusedno. 1 and accused No. 3 is the mother. The accused No. 4 is brother ofaccused No. 1. After the marriage, the accused 1 to 4 treated Ashabaiproperly for about 6 months. Thereafter the accused 1 to 4 startedabusing her and assaulting her. I tried to advice the accused 1 to 4 notto do so. The accused told me that, it is their personal matter andasked me to go to my house. After Akshay Tritiya about 15 days latter,Ashabai went to her parents house. She returned to husband's houseafter 3 days. The accused No. 1 used to insist Ashabai to bring Rs.15,000/- from her parents. He was insisting the same for his panshop.Ashabai brought Rs. 10,000/- from her father at the time of returningto her husband's house after Akshay Tritiya. Inspite of bringing theamount the accused Nos. 1 to 4 used to assault her saying that, as towhy she has not brought entire amount. 2) On 21-6-2002 at about 9 p.m. I visited the house of the accused inorder to advice them as they were assaulting and beating Ashabai. On22nd in the morning one Monabai of our village went to the house ofAshabai to call her to go to work. Monabai told me that the motherin-law of Ashabai told that, Ashabai left her house at about 5 a.m. forthe natural call, and that she has not returned. Inspite of search shewas not found upto 8 a.m. Therefore the villagers tried to searchAshabai. Ashabai was found in the well which is behind the MahadeoTemple.” PW9 Minal Gangaram Mali is acquaintance of deceased Ashabai. At {14} CRI APPEAL 409 OF 2004exh.29, she deposed as under :“I know deceased Ashabai. I know Ashabai as myself and Ashabaiused to go to work in the same field. I know all the accused beforeCourt. They are resident of Kapadane. The accused No. 1 is thehusband of Ashabai. Accused No. 2 is her sister in law, accused No. 3is her mother in law and accused No. 4 is her bother in law. At thetime of incident accused No. 1 was running a panshop. On 23-6-2002Ashabai died. Prior to the death of Ashabai, 2 days earlier myself andAshabai went to the land of Yashwantrao Mali, resident of Kapadane,for work. On that day we were in the field for agricultural work ofremoving grass. Ashabai was weeping. She told me that, accused Nos.1 to 5 are assaulting her. Ashabai showed me the weal marks on herforehead, back and on her thies. The deceased Ashabal told me that,accused No. 1 insisting her for the marriage of the son of accused No.5 with her sister. 2) Ashabai was refusing for the marriage of her sister with the son ofaccused No. 5 stating that, she is very young and aged about 13 yearsonly. Therefore, all the accused were harassing her. On the next alsoshe met me in the field. On the next day also she told me that, theaccused beat her. We worked in the field upto 12.30 noon from themorning on that day. Ashabai also told me that on the next day, shedoes not know she will be in the field or in the well. On 23rd I wentto the house of Ashabai at about 6 a.m. as to enquire whether she iscoming to work. When I reached there the accused No. 2 was heatingthe water. I enquired with her about Ashanai. She told me thatAshabai is not there and that, she left the house at 5 a.m. itself fornatural call. Thereafter I went to the house of Sakhwarbai. I told herthat Ashabai is not in her house. She told me to inform to the womenin the lane in that regard. Thereafter I told my mother that, Ashabai isnot in her house. Thereafter, the accused No. 3 went to the house thesister of Ashabai, residing at Kapadane. Accused No. 3 enquired withher as to whether Ashabai had come to her house. Thereafter, accused {15} CRI APPEAL 409 OF 2004No. 3 returned to her house, as she was not there. I noticed thepeople were running towards the well near the river. Therefore, I alsowent there. I noticed the pair of chappal of Ashabai. It were slippers. Iknow in that regard because she was working with me. The samewere of Ashabai. The dead body from the well was removed with thehelp of hooks. I saw the dead body it was of Ashabai. PW10 Namdeo Parbat Mali is acquaintance of deceased Ashabai. Hedeposed at exh.31 as under:“I was knowing deceased Ashabai. I know the accused in this case.The accused are husband, sister in law, mother in law, brother in lawof deceased Ashabai and accused no. 5 belongs to the community ofother accused. The accused Nos. 1 to 4 reside adjacent to my house.They are my neighbour. She used to attend agricultural field work.The incident took place in the year 2002. On the day of incident I wassick. On that day at about 1.30 a.m. at night, I had been to naturalcall by the side of the play ground of the high school. It was dark. Inoticed 4 persons carrying most probably a lady, holding hands andlegs. I saw the person carried was wearing Sari. The said personswere moving from our lane and crossed the road. I do not identifyanybody due to the dark. When I was returning to my house, afternatural call, I noticed the backdoor of the house of the accused 1 to 4was open. I noticed accused Nos. 2 and 3 were sitting in their house.Thereafter I returned to my house and went to sleep. On the next dayat about 8 to 8.30 I came to know that, deceased Ashabai wife ofaccused No. 1 lying in the well and that, the people are removing herout from the well. Therefore, I went near the well. I noticed thepeople were trying to remove Ashabai with the help of hook from thewell. The dead body was removed out from the well. It was ofAshabai. {16} CRI APPEAL 409 OF 2004PW11 Deepak Santosh Mali is relative of deceased Ashabai. At exh.32he deposed as under :“Ashabai was the sister of Ramabai. Ramabai is the wife of my brotherRajendra. I know the accused Nos. 1 to 5 before the court. DeceasedAshabai was doing agricultural labour work.2) On 21-6-2002 I returned with my she goats at about 5 p.m. to myhouse. I kept the said she goats in the shade. Thereafter I went to S.T.Stand, in order to have a walk. At about 11 p.m. my father came overthere and told me that, one she goat is missing. I searched the shegoat in the vicinity of our community. It was about 1.45 a.m. at thattime, in the night, I was returning to my house from Bhilati. At thattime, I noticed 4 persons carrying one person, holding hands and legsand hanging and were proceeding from village to temple by the sideof river. I noticed the sari of the person carried was hanging down. Iwas on the other end of the river. I noticed the said persons threw theperson carried in the well. When I saw the same, I was frightened andtherefore I returned to my house. Thereafter I went to sleep. On thenext day I went to in the field to bring grass for my she goats. It was 7a.m. I returned to my house at about 8 to 8.30 a.m. There was nobodyin my house. From the people residing in my lane, I came to knowthat, the sister of my sister in law was thrown in the well, and all myfamily members had gone there. Therefore, I rushed near the well. Atthat time, I felt that, the lady carried in the night must have beenAshabai, when I noticed earlier night.”PW12 Sandeep Chhabu Patil was Lecturer at Civil Hospital Dhule. Heand Dr.Ajit Pathak conducted post mortem of the dead body of deceased Ashabai. {17} CRI APPEAL 409 OF 2004PW13 Sambhaji Sudam Sawant (API) is Investigating Officer, who carried out all necessary steps and chargesheeted accused.ANALYSIS6.Thus, here, in all five persons were chargesheeted and presentappellant no.2, who is said to be the sole surviving appellant, wassaid to be married sister-in-law of deceased and on account ofmarital discord with her husband, she was residing at her parents’place.7.Here, there are two sets of evidence i.e. one of family membersand secondly, acquaintances or neighbour of informant. In short,accusations are that there was demand of Rs.15,000/ for expansionof pan shop and on its non-fulfillment, there was said to be cruelty.This Court has already reproduced the sum and substance of allprosecution witnesses in aforesaid paragraphs. On placing evidenceof immediate family members in juxtaposition and on comparing thesame, the following is emerging :PW2 Bhagwat, informant and father of deceased, in paragraph2 gave evidence that accused no.1 demanded Rs.15,000/- to expandhis pan shop and to purchase material for pan shop. Then hedeposed that “they started harassing her and assaulting deceased {18} CRI APPEAL 409 OF 2004Ashabai for said demand and she reported about it”. Thus, informantfather names only husband for putting up demand, but further he isattributing harassment to all accused without specifying the form ofharassment. PW3 Vimal, mother of deceased and wife of PW2 informant, inparagraph 1 of her examination-in-chief, deposed that, “after tworeligious ceremonies, accused started demanding Rs.15,000/- fromAshabai”. She has not specified like her husband that accusedhusband put up demand of said amount. Her evidence is also silentto the extent that demand was made for expansion of pan stall or forpurchase of material. Even she alleges that Ashabai was subjected tophysical and mental cruelty, but she has not elaborated or specifiedas to which amongst the five accused performed what role and whatwas the act amounting to physical cruelty or mental cruelty. Herevidence is also distinct than that of her husband as according to her,accused husband beat Ashabai in the backdrop of demand, however,as regards to beating is concerned, her husband informant is silent. PW4 Kashinath, cousin brother of informant also claims thatdeceased was treated properly for two years but thereafter, accusedstarted demanding Rs.15,000/- and insisted her to bring from herparents and according to him, they used to harass. Again even this {19} CRI APPEAL 409 OF 2004witness does not specify the role of each of the accused. Like parentsPW2 and PW3, he does not name husband.PW5 Ramabai, sister of deceased Ashabai attributes demand ofRs.15,000/- to all four accused and even she merely allegesharassment without specifying its nature and who amongst the fiveharassed Ashabai and in which form. Her evidence is also distinctthen her own parents as she alleges that they used to issue lifethreats and threats to injure her limbs and legs. Such is not theversion of her own parents. She also alleges that accused threatenedthat they will not allow Ashabai to cohabit unless their demand ismade. Again such is not the version of her parents i.e. PW2 and PW3and PW4 cousin brother of informant.8.The second set of evidence is of acquaintances i.e. PW7Mandabai, PW8 Sakhwarbai, PW9 Minal, PW10 Namdeo and PW11Deepak. They also all claim of hearing from Ashabai about demandof Rs.15,000/- for expansion of pan shop. Apparently they seem tohave hearsay information. Evidence of PW7 Mandabai appears to be improvised to theextent of accused persons saying that they would kill Ashabai bythrowing her in the well. Her cross-examination shows that there are {20} CRI APPEAL 409 OF 2004material omissions to the above extent. Similarly, PW8 Sakhwarbai, neighbour, though stated thataccused nos.1 to 4 started abusing and assaulting Ashabai, she claimsthat only accused no.1 used to insist her to bring Rs.15,000/- andthat Ashabai brought Rs.10,000/- from her father and gave it toaccused. Such is not stated by very parents or real sister of deceasedAshabai. Even her cross-examination shows that above is thematerial omission, which is not finding place in her statement beforepolice. Similarly, evidence of PW9 Minal, who is also a neighbour, isdistinct ad in her very examination-in-chief, she has not utteredabout demand of Rs.15,000/- for pan shop. She merely statesaccused nos.1 to 5 assaulted Ashabi, but her cross-examination showsthat whatever she stated in examination-in-chief is also improvedversion as it is same to be material omission which is brought in para3 of the cross-examination.PW10 Namdeo and PW11 Deepak claim about seeing 4persons carrying a lady on the dead-night and being taken towardsthe well, in the examination-in-chief itself they have stated that theycould not identify, who were the persons or the lady. Even they haveadmitted not reporting it to anyone till their statements were {21} CRI APPEAL 409 OF 2004recorded by Police at belated stage. SUMMATION9.Therefore, to sum up, as regards to sole surviving appellantNo.2 Pramelabai is concerned, none of the above witnesses hasdefined her role. Prosecution does not deny that she has come tostay with parents after being divorced. But as stated above, nospecific role is attributed to her of either putting up demand ofRs.15,000/- or in its backdrop, inflicting particular nature ofharassment. Allegation against all accused persons by prosecutionwitnesses are general and sweeping in nature. Therefore, with suchmaterial on record, it is unsafe to hold charge of Sections 498-A or306 or 304-B read with 34 of the IPC and charge of Section 4 of theDowry Prohibition Act, to be proved. For above reasons, appellantno.2 succeeds. 10.Perused the judgment under challenge. Learned trial Court hasadopted erroneous approach and has accepted the above versionwithout ascertaining the legal requirements or without ascertainingthe answers given by these witnesses while under cross-examination,which are full of material omissions. Therefore, it is a fit case forinterference at the hands of this Court. Accordingly, I proceed to pass {22} CRI APPEAL 409 OF 2004following order : ORDERI)Criminal Appeal No.409 of 2004 is allowed.II)The conviction awarded to appellant no.2 Pramelabai w/oKautik Mali in Sessions Case No.167 of 2002 by the learned2nd Ad-hoc Asstt. Sessions Judge, Dhule on 14-06-2004 for theoffence punishable under Sections 498-A, 306, 304-B r/w 34 ofthe Indian Penal Code and under Section 4 of the DowryProhibition Act, stands quashed and set aside. III)The appellant no.2 Pramelabai w/o Kautik Mali standsacquitted of the offence punishable under 498-A, 306, 304-Br/w 34 of the Indian Penal Code and under Section 4 of theDowry Prohibition Act.IV)The bail bonds of appellant no.2 stand cancelled. V)The fine amount deposited, if any, be refunded toappellant no.2 Pramelabai w/o Kautik Mali after the statutoryperiod.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. VII) Appeal stands abated against appellant no.3 - Narmadabaiw/o Kautik Mali. ( ABHAY S. WAGHWASE ) JUDGE SPT