High Court
Legal Reasoning
{1} CRI APPEAL 275 OF 2003IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 275 OF 2003Bhikan s/o Bhagaji KapseAge: 32 years, Occu.: Driver,R/o. Viramgaon, Tq.Phulambri,Dist.Aurangabad. ….Appellant (Orig. Accused No.1)VersusThe State of Maharashtra…..Respondent …..Advocate for Appellant : Mr. Ravindra S. ShindeAPP for Respondent : Mr.N.D.Batule ….. CORAM : ABHAY S. WAGHWASE, J. DATE : 18 JUNE, 2024 JUDGMENT :- 1. Appellant / convict is taking exception to the judgment andorder of conviction dated 05-04-2003 passed by II AdditionalSessions Judge, Aurangabad in Sessions Case No.300 of 2000 therebyholding appellant guilty for offence under Sections 498-A and 306 ofthe Indian Penal Code (IPC). PROSECUTION CASE IN TRIAL COURT 2. Deceased Nanda was married to appellant Bhikan {2} CRI APPEAL 275 OF 2003(original accused no.1) on 28-05-1996. Accused nos.2 and 4 areparents of accused no.1 whereas accused no.3 is his sister and shewas married and given at Dongargaon, Tq.Phulambri. On account ofdispute between accused no.3 and her husband, she had come toreside with accused nos.1, 2 and 4. For a period of two months after marriage, Nanda was treatedwell but thereafter, accused persons put up demand of Rs.50,000/-for purchase of Matador and started harassment of deceased Nanda.According to prosecution, she was beaten. Whenever deceased cameto the maternal house, she reported about demand and harassment.Even on 07-09-1999, deceased reported harassment to brother PW2Ramesh and on 08-09-1999 said brother came back. On theintervening night of 08-09-1999 and 09-09-1999 some persons cameto enquire the whereabouts of Nanda. She was searched for, but herdead body was found in the well of accused itself. Therefore, onreport of PW2 Ramesh, brother of deceased, crime was registered.On completion of investigation, accused were chargesheetedand tried before learned II Additional Sessions Judge, who onappreciating oral and documentary evidence of prosecution, heldappellant Bhikan alone guilty for offence under Sections 498-A and306 of the IPC and acquitted accused nos.2 to 4 from all charges.
Legal Reasoning
{3} CRI APPEAL 275 OF 2003Said judgment and order dated 05-04-2003 is questioned byappellant husband by filing instant appeal. SUBMISSIONSOn behalf of appellant :3. Asserting innocence and claiming false implication, learnedCounsel for appellant criticized both prosecution case as well asjudgment under challenge. Learned counsel took this Court throughthe prosecution evidence and submit that prosecution has miserablyfailed to establish the charges beyond reasonable doubt. Accordingto him, prosecution has failed to establish very cruelty as alleged asaccording to him, necessary ingredients for attracting said charge isnot available in the prosecution evidence. He pointed out thatwitnesses are merely speaking about harassment and demand ofRs.50,000/-, but according to him, none of the witnesses haveclarified as to in what form there was harassment. That there aremere allegations of teasing and taunting, but according to him, suchaccusations do not constitute ill-treatment as contemplated underSection 498-A of the IPC. 4.It is his further criticism that there are also baseless and false {4} CRI APPEAL 275 OF 2003allegation by brother of deceased regarding appellant husbandkeeping a mistress, and there is no evidence in that direction. Hepointed out that such allegations are even not made in the report onthe strength of which crime was registered. Rather for the first time,version is improved in the witness box to that extent. 5.It is his next submission that a day before incident, informantbrother had visited house of accused, but there was no allegation ofill-treatment or harassment and even no reporting or lodgingcomplaint to that extent. He took this Court through the testimonyof PW2 Gayabai and would point out that this relative has notuttered about any ill-treatment or demand. That even PW4Mainabai, mother of deceased, merely deposed about ill-treatmentand harassment without elaborating its form and nature or when saidinstances took place. Inviting attention to the testimony of sisterPW5 Ashabai, sister of deceased, learned counsel pointed out thatthis witness stated that whenever deceased came, she disclosed aboutill-treatment, but it is emphasized that when there was suchdisclosure to sister is not stated by her. It is pointed out that PW6Laddu, claimed to have accompanied PW2 Ramesh to the house ofaccused, but it is submitted that PW2 Ramesh has not deposed PW6 {5} CRI APPEAL 275 OF 2003accompanying him at any point of time. Therefore, according tolearned Counsel, evidence on the point of harassment and ill-treatment is not at all worthy of credence. On this point, learnedcounsel seeks reliance on ruling of Hon’ble Apex Court in the case ofAmalendu Pal alias Jhantu v. State of W.B., AIR 2010 SC 512 andwould submit that here also out of the four accused, who demandedand who ill-treated and in what form, has not been established byprosecution and so according to him, there is apparently weakevidence in support of charge under Section 498-A of the IPC.However, according to him, still learned trial Court has erred inaccepting above evidence in recording guilt. Learned counsel hastento add that on same set of evidence, learned trial Court has refusedto accept case of prosecution against accused nos.2 to 4. Thus, hecriticized findings and conclusion reached at by learned trial Courton above charge of Section 498-A6.As regards to offence under Section 306 of the IPC isconcerned, he would strenuously submit that law enjoin prosecutionto first establish abetment or inducement to commit suicide. Hepointed out that, here there is nothing to show that there was ill-treated or cruelty, which was of such nature that deceased was forced {6} CRI APPEAL 275 OF 2003to end up her life. He pointed out that there is no iota of evidence inthat regard. On the contrary, he submits that there is everypossibility of deceased falling in the un-constructed and unprotectedwell when she went to fetch water. He pointed out that very essenceof abetment, inducement and mens rea, which are sine qua non forattracting charge under Section 306 are patently missing. Thus hecriticized the judgment and findings reached at by learned trial Courtwith regard to such charge also. Lastly, he submitted that there is apparently improperappreciation of evidence and non-consideration of legal requirementsand law. According to him, impugned judgment, being illegal andnot sustainable in the eyes of law, same is required to be set aside. On behalf of State :7.Canvassing in favour of judgment, learned APP pointed outthat barely after few months of marriage, accused persons put updemand of Rs.50,000/- for purchasing Matador for husband. Forfulfillment of said demand, deceased was subjected to harassmentand ill-treatment and she used to promptly report it to her familymembers. Learned APP pointed out that barely few days prior to thealleged incident, deceased had reported to her brother PW2 Ramesh {7} CRI APPEAL 275 OF 2003about the demand and harassment. That such brother has set lawinto motion. His testimony is supported and corroborated by his ownmother, sister and even independent witness i.e. neighbour. It ispointed out that all witnesses are consistent about demand andharassment. That their evidence has not remained doubtful. Thatonly because of ill-treatment and harassment, deceased committedsuicide. That there was no other reason for her to commit suicide.Therefore, according to learned APP, learned trial Court rightly heldhusband responsible and guilty. According to him, there beingcorrect appreciation of evidence as well as law and there being nomerit in the appeal, prayers are made to dismiss the same. EVIDENCE ON BEHALF OF PROSECUTION IN TRIAL COURT8.In support of its case, prosecution has adduced evidence of inall six witnesses in the trial Court. Sum and substance of theirevidence is as under : PW1 Baburao Bajrang Palode, Sub-Inspector, is theInvestigating Officer, who in his evidence at exh.49, narrated all thesteps taken by him like enquiring AD, preparing inquest, referringbody for post mortem, drawing panchanama and receiving complaint {8} CRI APPEAL 275 OF 2003from PW2 Ramesh and making it a base of registration of crime. Healso arrested accused on 13-09-1999, sent viscera for CA.PW2 Ramesh Murlidhar Jadhav, brother of deceased, in hisevidence at exh.53 stated that after marriage, his sister Nanda wentto resided with accused who resided with in-laws at Viramgaon.According to him, his sister was treated properly for two months, butthereafter, she was harassed by accused on account of demand ofRs.50,000/- for purchasing Matador. He stated that accused no.1beat his sister whereas accused nos.2 to 4 used to tease his sister onaccount of demand of money. That whenever his sister came, shedisclosed the harassment. That two days prior to the incident, hehad been to the house of accused, that time also she informed aboutharassment to her on account of demand of money. On interveningnight of 08-09-1999 and 09-09-1999, a Jeep came from Viramgaonwith full of persons in search of his sister. That she was searched forand her dead body was found in the well of accused and therefore,after funeral, complaint exh.51 was lodged.PW3 Gayabai w/o Dattu Khillare stated that her sisterSakhubai Narayan Kapse resides at Viramgaon and she is related to {9} CRI APPEAL 275 OF 2003accused. That 3-4 days prior to death of Nanda, when she went toViramgaon, deceased met her and asked her to give message to herbrother to come to see her. That she passed said message andthereafter, message of death of Nanda was received.PW4 Mainabai w/o Murlidhar Jadhav, mother of deceased alsostated that after 3-4 months of marriage, her daughter madecomplaint against accused husband for remaining outside the housefor 3-4 months at a stretch. She also deposed that husband wasintending to purchase Matador for himself and for the same, husbanddemanded Rs.50,000/- and on such count, there was ill-treatment.That all accused were harassing her. That during her visit to house ofaccused, her daughter requested her to take her alongwith or else shewould do something to her life. That one day before death of Nanda,her son Ramesh visited Viramgaon and returned. That same nightpersons came making enquiry regarding whereabouts of Nanda. Thatnext day dead body of Nanda was noticed in the well. PW5 Ashabai w/o Kailash Chavan, sister of deceased alsostated that her sister was treated well for 2-3 months and thereafter,accused husband demanded Rs.50,000/- for purchase of Matador. {10} CRI APPEAL 275 OF 2003That accused no.1 said to her that she should not come from thehouse of her parents without bringing money. That in absence ofhusband, accused persons beat her sister for demand of money forpurchase of Matador. That whenever her sister came home, sheinformed about it. PW6 Laddu s/o Gulam Nabi Patel, friend of PW2 Ramesh,deposed that he attended marriage of Nanda and he used toaccompany PW2 Ramesh to the house of accused. According to him,when Nanda came to her parents’ house she disclosed about ill-treatment. He claims that he accompanied PW2 Ramesh to requestaccused to not to harass deceased. That at the time of Pola festival,they learnt that Nanda was missing. That she was searched and herdead body was found in the well of accused no.1.ANALYSIS9.On re-appreciating the entire evidence, it is emerging thataccused husband, parents-in-law, sister-in-law were charged foroffnece under Sections 498-A and 306 of the IPC. On conclusion oftrial, only appellant husband held guilty and rest all are acquitted.Case of prosecution rested on evidence of six witnesses, whose {11} CRI APPEAL 275 OF 2003testimonies are discussed above. On re-appreciation of evidence, it is noticed that according toinformant PW2 Ramesh, brother of deceased, all accused startedharassing his sister on account of demand of Rs.50,000/- forpurchasing Matador. But his mother PW4 Mainabai, attributesdemand of Rs.50,000/- only to accused no.1 - husband and not toother accused. PW5 Ashabai, sister of deceased also attributesdemand to only accused no.1 - husband and not to accused nos.2, 3and 4. Therefore, witnesses are not apparently consistent on thepoint of very demand. 10.Secondly, PW2 brother, PW5 mother and PW5 sister ofdeceased are merely deposing that there was harassment and ill-treatment. None of them have elaborated or clarified nature of ill-treatment or nature of harassment. General and omnibus allegationsare made about deceased Nanda being harassed and ill-treated. 11.PW2 Ramesh, brother / informant, in his substantive evidencedoes not speak about his brother-in-law accused no.1 leadingadulterous life. Though he claims to have visited house of accused tomeet his deceased sister, his evidence is silent about sister reporting {12} CRI APPEAL 275 OF 2003about accused husband maintaining a mistress. PW4 Mainabai,mother of deceased merely stated about hearing from her daughterthat accused no.1 husband used to stay out of house for monthstogether. Even sister PW5 Ashabai did not utter a single word aboutaccused husband maintaining a mistress. PW6 Laddu, friend of PW2 deposed about accompanying PW2to the house of accused to give understanding to accused persons tonot to harass deceased and therefore, for some period deceased wastreated well. But such version is not coming from the mouth of PW2brother. Two days prior to incident also brother allegedly visitedhouse of deceased and stayed, but he has not stated about PW6accompanying him to give any understanding to accused.12.Resultantly, here it is noticed that PW2 Ramesh, brother ofdeceased is alleging harassment and ill-treatment at the hands of allaccused, whereas PW4 mother and PW5 sister of deceased arealleging ill-treatment at the hands of accused no.1 on account ofdemand. From the FIR, it is emerging that accused persons already owna Matador, but still accusations are made for demand of Rs.50,000/-for purchasing a separate Matador. Even demand for Matador is {13} CRI APPEAL 275 OF 2003quoted for Rs.50,000/-. Nobody is elaborating as to whetherappellant husband intended to purchase second hand vehicle or abrand new one. Consequently, on taking overall survey of above evidence onthe point of charge of Section 498-A of the IPC, it is emerging thatthere are apparently general and omnibus allegations that there washarassment and ill-treatment. Allegations are made against husbandfor beating, but only informant speaks to that extent. His mother andsister are silent about it. Therefore, it is unsafe to rely on suchinconsistent evidence.13.Deceased allegedly committed suicide by jumping in well.Prosecution evidence is absolutely silent as to when deceased lefthouse to commit suicide by jumping in the well. PW2 Brother, PW4Mother speak about persons in a vehicle coming from Viramgaon tomake enquiry regarding whereabouts of deceased Nanda. Informantclaims that persons came in the intervening night of 08-09-1999 and09-09-1999, but he himself has deposed that he had been toViramgaon i.e. to the house of accused on 07-09-1999 and he stayedthere upto 08-09-1999 and came to back his own Village Janephal.He claims that during his stay at house of accused, his sister {14} CRI APPEAL 275 OF 2003requested him to take her away to their house, but he convinced her.He alleges that she told that he should consider it as his last visit withher, however, surprisingly PW2 Ramesh, her brother, has not broughther home and he alone came back to Janephal on 08-09-1999. Whathappened after he left the house of accused till the intervening nighti.e. when persons from Viramgaon coming in search of Nanda is notexplained by prosecution. There is no evidence as to what transpiredprior to deceased going missing. PW2 Ramesh does not speak aboutaccused husband also coming in search of deceased. Case of defenceis that he was driver and used to stay out of house for days together.Even PW4 Mainabai, has deposed that he used to stay out of housefor a longer period. Therefore, with such material and in absence ofconcrete evidence about presence of accused husband in the house inproximity to the alleged missing of deceased Nanda, it is unsafe toinfer his presence in the house and to further connect him to allegedsuicide. Therefore, what exactly happened on 08-09-1999 after PW2brother allegedly left, is not clear. At what time, Nanda left thehouse is not clear. Exh.50 which is got exhibited through PW1Palode goes to show that Nandabai left her house at around 05:30p.m. on 08-09-1999, but her dead body is noticed in the well on at {15} CRI APPEAL 275 OF 200311:00 a.m. of 09-09-1999. Autopsy Surgeon has not notedapproximate time since death. 14.What prompted deceased Nanda to go towards the well hasapparently not been established by prosecution. There is no iota ofevidence in that direction. In view of charge under Section 306 ofthe IPC, it was essential on the part of the prosecution to adducereliable evidence so as to connect appellant husband for said suicide.At the first count, there is no concrete evidence that death of Nandawas only and only suicidal and not otherwise. 15.It is worth noting that on same set of evidence, accused nos.2to 4 are already set at liberty and acquitted from all charges.However, in absence of any evidence to show that accused no.1husband was at his house on entire day of 08-09-1999, learned trialCourt has held him alone guilty for abetment. What act he played isnot explained by prosecution. This Court has not noticed any distinctevidence i.e. in the entire evidence of prosecution to infer abetment,inducement in the backdrop of demand of Rs.50,000/-. Mens rea isessential part, but same is also missing from prosecution evidence. {16} CRI APPEAL 275 OF 200316.Consequently, in the light of above discussed material, there isweak evidence on the point of charge of Section 498-A of the IPC andfurther weak or no evidence on the point of abetment to commitsuicide i.e. charge of Section 306 of the IPC. Hence, in theconsidered opinion of this Court, both charges fail. 17.On going through the impugned judgment, it is apparent thatwhile appreciating evidence adduced by prosecution, essentialrequirements for establishing charges and settled law has not beencorrectly applied by the learned trial Judge. Therefore, saidjudgment cannot be allowed to be sustained necessitating indulgenceat the hands of this Court. Accordingly, I proceed to pass followingorder : ORDERI)Criminal Appeal No.275 of 2003 is allowed.II)The conviction awarded to appellant – Bhikan s/oBhagaji Kapse in Sessions Case No.300 of 2000 by thelearned II Ad-hoc Additional Sessions Judge, Aurangabad on05-04-2003 for the offence punishable under Sections 498-Aand 306 of the Indian Penal Code, stands quashed and set aside. {17} CRI APPEAL 275 OF 2003III)The appellant stands acquitted of the offence punishableunder Sections 498-A and 306 of the Indian Penal Code.IV)The bail bonds of appellant stand cancelled. V)The fine amount deposited, if any, be refunded to theappellant after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. ( ABHAY S. WAGHWASE ) JUDGE SPT