High Court
Facts
1 Cr.Appeal.163.2003IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.163 OF 20031.Gajanand S/o Madhukar Chavan,Aged 25 years, Occupation: Agriculture2.Radhabai W/o Madhukar Chavan,Aged 40 years, Occupation: Household,Both R/o. Satephal, Taluka Purna,District Parbhani.. Appellants (Ori. Accused Nos.1&3)Versus.State of Maharashtra.. Respondent...Advocate for Appellant: Mr. Vikram R. DhordeAPP for Respondent/State: Mrs. Chaitali Choudhari-Kutti...CORAM:ABHAY S. WAGHWASE, J.Reserved on:15.07.2024Pronounced on:20.07.2024JUDGMENT:1.Appellants who stood convicted for offence under section304-B read with Section 34 of the Indian Penal Code, 1860 (IPC) by thelearned Ad-hoc Additional Sessions Judge, Parbhani in S.T. No.72/2001are challenging their conviction by which they are sentenced to suffer 7years R.I. and to pay fine. 2 Cr.Appeal.163.2003FACTS LEADING TO TRIAL2.Deceased Ahilyabai was married to appellant. At the time ofmarriage it was settled between the parties to give Rs.51,000/- and 1Tola gold. Rs.50,000/- were already paid along with 5 Gram gold. Thus,amount of cash Rs.1000/- and 5 Gram gold was outstanding. For initialperiod of 2 months, she was treated well and, thereafter, husband and in-laws i.e. parents-in-laws subjected deceased to ill treatment. Wheninformant / father went to meet her, she reported the above treatmentmeted out to her i.e. when he went to Satephal. Eight to ten days afterhis visit news was received that dead body of Ahilyabai was found in thewell. Therefore, he lodged report Exhibit 27, on the basis of which, crimewas registered, investigated and after gathering evidence husband and in-laws were tried by S.T. No.72/2001 by Ad-hoc Additional Sessions Judge,Parbhani, for offence under Sections 306, 304-B, 498-A read with 34 ofthe IPC.On appreciating the oral and documentary evidence, learnedtrial judge reached to a finding that prosecution has succeeded inestablishing the charge against the accused husband and mother-in-law.But, prosecution failed to establish charges against accused no.2 father-in-law and by judgment and order dated 20.02.2003, husband andmother-in-law stood convicted, which is now subject matter of challengein this case.
Legal Reasoning
7 Cr.Appeal.163.2003Rs.1000/- and 5 Gram gold had remained to be paid. For 2 monthseverything was proper and thereafter husband and mother-in-lawill treated Ahilyabai. When he went to meet her she reported theabove conduct. Eight days thereafter, he learnt message that deadbody of Ahilyabai was traced in the well.PW-3 Maternal Uncle also stated about marriage to be settled forRs.51,000/- and 1 Tola gold, Rs.1000/- and 5 Gram gold hadremained and rest was paid. Ahilyabai was happy for 2 months.But, thereafter, when she was to the village, she told about illtreatment by husband and in-laws. According to him, she wentback to cohabit but due to ill treatment she committed suicide.PW-4 Police Officer, who carried out investigation.ANALYSIS6.Husband, mother-in-law and father-in-law were made to facetrial for commission of offence under Section 498-A, 306, 304-B readwith Section 34 of IPC. There is no dispute that all 3 are acquitted fromcharge under Section 306 read with Section 34 of IPC and father-in-law isacquitted from all charges but only husband and mother-in-law are heldguilty for offence under Section 304-B read with Section 34 of IPC. 8 Cr.Appeal.163.20037.Though, as many as 4 witnesses are examined, evidence ofinformant PW-2 father and PW-3 maternal uncle is of relevance andsignificance. They both in their evidence at Exhibit 26 and 28 deposedthat at the time of marriage it was decided to give Rs.51,000/- and 1 Tolagold, and out of it Rs.50,000/- were provided with 5 Gram Gold, and assuch only Rs.1000/- cash and 5 Gram gold had remained unpaid. That,after the period of 2 months of marriage, according to informant father,husband Gajanand and mother-in-law Radhabai were giving illtreatment. Informant father has stated that accused no.2 father-in-lawMadhukar was neutral.Maternal uncle PW-3 has attributed ill treatment to husbandas well as both the parents-in-law. It is noticed that except stating that there was ill treatmentand trouble, informant father has not stated the form of ill treatment oras to when such instances of ill treatment or harassment took place. Whatfather is found to be deposing is that during his visit to her, he noticed hisdaughter not wearing mangalsutra on her neck and on his query heclaims that she told that her mother-in-law did not provide threat to wearmangalsutra. As pointed out by learned counsel for the appellant if onevisits postmortem report, in column no.7 of the postmortem reportautopsy doctor has given description, that is pertaining to description ofclothes and ornaments on the body, by virtue of item no.1, mangalsutra is 9 Cr.Appeal.163.2003found on the very person of the deceased. Therefore, allegation of fatherseeing daughter without mangalsutra is rendered false. Testimony ofuncle is silent about above aspect. Testimony of father in witness boxabout absence of mangalsutra on the person of his daughter, is apparentlyomission, as is revealed from answers given by this witness in para 4.8.Again as pointed out, no distinct evidence is placed byprosecution about marriage settled and decided to be performed onpayment of Rs.51,000/- and 1 Tola gold. Cross of informant father showsthat Annarao Kadam from Katneshwar, who was a mediator, has not beenexamined by prosecution in support of such settlement. Again, as pointedout, further cross of informant, para 3, goes to show that talks ofsettlement of giving and taking dowry had taken place at residence ofAnnarao Kadam of Katneshwar but, contrary to it, maternal uncle incross, para 3, speaks of marriage negotiations taking place at his ownplace Dagadgaon. Therefore, witnesses are not consistent. Consequently, what is emerging from testimony of informantfather and maternal uncle is that there are vague, general, omnibusallegations of accused subjected deceased to ill treatment withoutmagnifying or amplifying it’s nature so as to hold that there was crueltyas contemplated under Section 498-A of IPC. 10 Cr.Appeal.163.20039.Second charge with which appellants have faced trial andare held guilty is Section 304-B of IPC i.e. causing dowry death anddeceased meeting unnatural death within 7 years of marriage. No doubt,in this unfortunate incident, deceased met unnatural death within a yearof marriage. It is now to be seen, whether as contemplated by the law,there is evidence suggesting cruelty and ill treatment being meted out inproximity to alleged unnatural death. It is expected of prosecution tosubstantiate that soon before death deceased was subjected to suchharassment and cruelty that too in the backdrop of dowry that she wasleft with no other alternative but to end up her life.10.On one hand, learned counsel for the appellants pointed outthat firstly prosecution failed to establish that there was dowry demandand secondly prosecution also further failed to prove beyond reasonabledoubt that death of Ahilyabai was only suicidal and not otherwise. On theother hand, learned APP strenuously submitted that 8 days prior to thedeath itself, deceased had reported to her father informant that there wasill treatment for remaining dowry.Again on this point, except testimony of informant there isno other evidence. As discussed above, nature and form of ill treatmenthas not come on record, neither roles of accused nos.1 and 3, who areheld guilty are defined by either informant father or maternal uncle. 11 Cr.Appeal.163.2003General allegations are levelled that there was ill treatment. This courthas already dealt in aforesaid para that father and uncle are contradictingeach other about place of initial talks and dowry. Informant father speaksof talks taking place at Katneshwar but his own brother contradicts himby stating that talks taking place at his own place at Dagadgaon.Mediator Annarao Kadam, as stated above, who was the main person forsettling talks, is not examined by prosecution for the best reasons knownto it. Therefore, firstly here, very case of prosecution about dowrydemand has comes under the shadow of doubt. 11.Informant and uncle have deposed that out of Rs.51,000/-substantial amount i.e. Rs.50,000/- were already given at the time ofmarriage and what had remained was only Rs.1000/- and 5 Gram gold.Father and uncle both speaks about assurance being given to meet thedemand, if this was so then question arises is, why at all there would beconsistent ill treatment or incessant ill treatment for just remainingRs.1000/- and 5 Gram gold. There is gap of 8 days between alleged visitof informant to the house of accused and death of his daughter. Whatexactly triggered and prompted deceased to jump in the well is not comein the record. No neighbour is examined. It is pertinent to note that very investigating officer PW-4while under cross, para 3, has admitted that he did not record the 12 Cr.Appeal.163.2003statement of the owner of the land wherein the well was situated. He didrecord statements of Narayan and Lalita, who were related, but theirstatements are not attached to the charge-sheet. He further answered incross, that in their statement, possibility of accidental fall of Ahilyabai inthe well were expressed by both these persons. Non-examination of suchwitness calls upon drawing adverse inference. In fact, it indirectlyamounts to suppressing of material facts and truth, which courts of laware expected to look for. Consequently, how and in what circumstances Ahilyabaiwent towards the well, what made her go to the well, what happened inthe house and whether both present appellants were present or not, wasexpected to be proved by prosecution in support of the charge of 304-B ofIPC, which contemplates cruelty, harassment, ill treatment immediatelyor soon before unnatural death. These essential requirements are notgetting met from the available prosecution evidence. Law to the extent ofcharge under Section 304-B of IPC has been dealt in series of judgment.As to when said charge can be said to be established is elaborately andsuccinctly dealt time and again in numerous judgments like Bansi Lal v.State of Haryana, (2011) 11 SCC 359; State of Rajasthan v. Girdhari Lal,(2013) 15 SCC 269; Manohar Lal v. State of Haryana, (2014) 9 SCC 645and Sher Singh v. State of Haryana, (2015) 3 SCC 724. 13 Cr.Appeal.163.200312.To sum up, here, there is little or weak evidence on both thecharges i.e. Sections 498-A and 304-B read with Section 34 of IPC.13.Perused the judgment under challenge, trial court has notconsidered the above legal requirements before accepting case ofprosecution and recording guilt. Therefore, it is the fit case to interferewith. Hence, following order.ORDERI)Criminal Appeal No.163 of 2003 is allowed.II)The conviction awarded to appellants Gajanand S/oMadhukar Chavan and Radhabai W/o Madhukar Chavan inS.T. No.72 of 2001 by the learned Adhoc Additional Sessions Judge,Parbhani, on 20.02.2003 for the offence punishable under Section304-B read with Section 34 of the IPC stands quashed and set aside.III)The appellants stand acquitted of the offence punishableunder Section 304-B read with Section 34 of the IPC.IV)The bail bonds of appellants stand cancelled. V)The fine amount deposited, if any, be refunded to theappellants after the statutory period. [ABHAY S. WAGHWASE, J.]marathe
Arguments
3 Cr.Appeal.163.2003ARGUMENTSOn behalf of the Appellants:3.At the outset, learned counsel pointed out that on same setof evidence accused no.2 has been already acquitted but husband andmother-in-law are singled out and held guilty. He pointed out thatgeneral, vague and omnibus allegations are made by father and unclewithout elaborating or specifying instances of so called ill treatment, it’sform or nature. He pointed out that even F.I.R. by father is a delayed one.Learned counsel took this court through the substantive evidence ofinformant PW-2 then to the cross faced by informant PW-2 and wouldpoint out that, apart from material omissions, there are variances andcontradictions between himself and PW-3 maternal uncle on the point asto whether actual talks and settlements of marriage had taken place. Hepointed out that even so called mediator through whom marriage wasfixed and talks were initiated, namely Annarao Kadam, who is none otherthan cousin brother-in-law of informant, has not been examined. That,material omissions are got proved through the cross of InvestigatingOfficer. He next took this court through the testimony of PW-3 andwould pointed out that even his testimony does not throw light as towhat was actual form of ill treatment. That, even his evidence is silentabout incident of ill treatment and or as to when it took place. Therefore, 4 Cr.Appeal.163.2003on the point of ill treatment and cruelty learned counsel ferventlysubmitted that there is little, no or weak evidence. He next pointed out that prosecution has not substantiatedas to whether Ahilyabai met suicidal death or accidental death. Hepointed out that even A.D. papers are not placed on record. According tohim, dead body of deceased Ahilyabai was traced in a well of adjoiningowner but said land owner has not been examined by prosecution. He further pointed out that though prosecution claims thatdeceased was not allowed to wear mangalsutra but according to him thevery findings noted by Autopsy Doctor at the time of postmortem clearlyshows that at the time of autopsy, mangalutra was found to be tied on theperson of deceased and, thus, according to him false, concocted andfabricated report and allegations are levelled by father. He also invited attention of this court to the cross faced byvery Investigating Officer and pointed out that material witnesses andindependent witnesses are not examined by the Investigating Officer. Learned counsel further invited attention of this court to thejudgment and would pointed out that there is apparently improperappreciation. Findings are not supported by sound reasons. He also strenuously submitted that learned trial court hasalready acquitted all accused from charges under Section 306 read withSection 34 of IPC and has held husband and mother-in-law guilty under 5 Cr.Appeal.163.2003Section 304-B read with Section 34 of IPC, and further submitted thatevidence of prosecution is patently lacking with regard to cruelty or illtreatment meted out by these 2 appellants immediately prior to allegedunnatural death of Ahilyabai. Thus, according to him, when there was noevidence suggesting cruelty in backdrop of dowry demand in proximity toalleged death he criticized the findings recorded by learned trial court.For all above reasons, learned counsel submits that judgment is perverseand not maintainable in the eyes of law and, hence, liable to be set aside.On behalf of the State:4.Supporting the judgment of the learned trial court, learnedAPP pointed out that marriage and cohabitation between the deceasedand appellant no.1 is purely of 8 to 9 months. She pointed out that after2 months of marriage deceased was subjected to both physical andmental cruelty. She had reported it to her father. For remaining dowrydemand accused husband and in-laws subjected deceased to cruelty.According to learned APP, there is convincing evidence of father anduncle of deceased. That, 8 days prior to the incident, when informant hadbeen to visit his deceased daughter, that time she had reported aboutdemand and ill treatment. Accused persons had not provided him mealseven when he stayed there for the night. According to her, such conductof accused is self explanatory and is sufficient to opine their behaviour 6 Cr.Appeal.163.2003towards deceased as well as informant. That, there was no other reasonfor her to end up her life. According to her, they even on their own havenot reported informant about deceased missing. Therefore, according toher, there is ample evidence against accused persons. Learned trial courthas correctly held husband and mother-in-law guilty under Section 304-Bread with Section 34 of IPC. According to learned APP, taking the testimony of fatherabout hearing from his daughter 8 days prior to the death about demandand ill treatment, essential ingredients for attracting Section 304-B of IPCare also available and, as such, it is her submission that trial courtcorrectly appreciated the evidence and has committed no errorwhatsoever in returning the guilty for said charges and, consequentially,she prays to dismiss the appeal for want of merits.EVIDENCE BEFORE THE TRIAL COURT5.Role and status of the prosecution witnesses and the sumand substance of their evidence is as under :PW-1 Autopsy Doctor, who reported and issued opinion that probablecause of death was due to asphyxia due to drowning.PW-2 Informant / father deposed that marriage of his daughter wasperformed 2 years back. That, it was settled to give Rs.51,000/-and 1 Tola. Rs.50,000/- were already paid along with 5 Gram gold.