High Court
Legal Reasoning
1 Cr.Appeal.524.2003IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.524 OF 2003.Dattatraya s/o. Kerba Ghuge,Age: 26 Years, Occu.: Teacher,R/o.: House No.1-3-2954,Kranti Colony, Ambika Nagar,Beed, Dist.: Beed.. Appellant(Ori. Accused No.1)Versus.The State of Maharashtra.. Respondent…Advocate for Appellant: Mr. Joydeep ChatterjiAPP for Respondent/State: Mr. Rajdeep D. Raut...CORAM:ABHAY S. WAGHWASE, J.Reserved on:26.06.2024Pronounced on:02.07.2024JUDGMENT:1.Appellant who stood convicted by learned 3rd AdhocAdditional Sessions Judge, Beed for offence under sections 498-A, 306and 304-B of the Indian Penal Code, 1860 (IPC), is hereby takingexception to the judgment passed in Sessions Case No.51/2002, dated21.07.2003.FACTS LEADING TO TRIAL2.Deceased – Jyoti was married to present appellant, who alsowas a teacher. At the time of marriage, it was decided between the parties 2 Cr.Appeal.524.2003that amount of Rs.50,000/- would be given by way of dowry along with 2tola gold. As agreed, Rs.20,000/- was paid in advance and even half tolagold was decided to be given at the time of marriage and remainingamount of Rs.30,000/- and 1 ½ tola gold was decided to be given aftermarriage. After marriage, Jyoti came to reside with the appellant atBorfadi and after spending 1 ½ month there, she and present appellantrented a room in the very house of father-in-law i.e. father of Jyoti atGramsevak Colony, Beed. According to prosecution, subsequently, the appellanthusband started putting demand of remaining dowry amount andornaments i.e. 2 months prior to the incident in question. One and halfmonth prior to the incident, parents and brother of appellant raisedquarrel for the unpaid dowry and gold. One month prior to the incidentappellant also beat Jyoti. On 10.11.2001, getting fed up of the demandand ill treatment Jyoti consumed poison and she expired on 11.11.2001. Therefore her father PW-8 Arjun lodged report on the basisof which PW-9 and PW-10 carried out investigation at respective timesand chargesheeted accused husband as well as his parents and brother.Trial was conducted by the learned 3rd Adhoc AdditionalSessions Judge, Beed, vide Sessions Case No.51/2002 and on analysingand appreciating the original and documentary evidence adduced by theprosecution, learned trial judge held appellant husband alone guilty for
Legal Reasoning
3 Cr.Appeal.524.2003above offence and acquitted rest of the accused from all charges videjudgment and order dated 21.07.2003. Said judgment is now assailed byfiling instant appeal. SUBMISSIONS3.Sum and substance of the arguments put-forth by thelearned counsel for the appellant is that, there is false implication. Therewas no convincing, cogent, reliable evidence in support of any of thecharges for which appellant was tried. Learned counsel pointed out thatthere is no convincing evidence about any dowry being demanded and orpart dowry being paid and for remaining dowry there was any cruelty orharassment. Learned counsel pointed out that, in fact, the appellant wasresiding in a rented room of his father-in-law informant. Therefore,deceased daughter was very much in the house of informant itself. Hepointed out that there is no independent evidence about any quarrel inthe backdrop of remaining dowry. No independent witnesses wereexamined on the point of paid and unpaid dowry in spite of their namesgiven in the testimonies of prosecution witnesses. 4.He took this court through the testimonies of PW-2 andPW-3, who are immediate neighbours and he pointed out that even theirevidence, does not suggest anything concrete about demand or quarrel insuch backdrop. He pointed out that there is no evidence in support of 4 Cr.Appeal.524.2003charge of Section 498-A of IPC. According to the learned counsel,considering the prosecution evidence, learned trial court itself hasacquitted accused nos.2 to 4 from all the charges but husband alone isheld guilty for Section 498-A of IPC, even when there is no convincing,cogent and reliable evidence in that regard. He emphatically submittedthat the essential ingredients as contemplated in law for attractingSection 498-A of IPC being apparently missing, learned trial court oughtnot to have fastened the guilt for the said charge.5.As regards charges of Section 304-B of IPC is concerned, hesubmits that said provision contemplates cruelty or harassment beingmeted out soon before the death but here according to him, there is noevidence to show that there was any demand and ill treatment inproximity to alleged consumption on 10.11.2001. That, witnesses arespeaking about alleged demand raised since one and half month prior tothe incident and, therefore, according to him, by any stretch ofimagination such evidence can be applied to attract offence underSection 304-B of IPC.6.While criticizing learned trial court on the point of Section306 of IPC, learned counsel pointed out that deceased has allegedly leftthe house to attend her work at school and allegedly returned in thehouse at 03:45 p.m. That time husband was not in the house and there is 5 Cr.Appeal.524.2003no dispute to that extent by prosecution also. He pointed out thatdeceased consumed poison while her mother, sister-in-law were verymuch present in the house. Why she consumed poison is also not known.There is no evidence as to how she consumed poison. Therefore,according to learned counsel when very husband appellant is not shownto be around at the time of alleged consumption, he ought not to heldguilty for abetment or inducing the deceased. Resultantly, he questionsthe very finding recorded by the learned trial judge holding the appellantguilty for offence under Section 306 of IPC.Lastly, he submitted that testimonies of parents is full ofmaterial omissions and contradictions. Material witnesses are notexamined. There is no cogent, reliable, independent evidence in supportof any of the charges and, as such, according to him, the conclusionreached at by the learned trial court is being in absence of legallyacceptable evidence, prosecution had miserably failed to establish thecharges. For all above reasons, he questions the legality and sustainabilityof the impugned judgment and prays to set aside the same.7.Refuting the above submissions and supporting the judgmentof learned trial court, learned APP submits that prosecution hadestablished the case beyond reasonable doubt. That, parents areconsistent about dowry demand and cruelty and harassment by husband, 6 Cr.Appeal.524.2003he used to beat her. That, appellant and deceased resided in the veryhouse of informant as a tenant. They were aware of the treatment metedout to their daughter. That, both the parents have consistently deposedabout their daughter reporting demand and ill treatment given to her byher husband. Their evidence has remained unshaken. Learned APP further pointed out that the demand waspersistent and consistent. According to the learned APP on the day ofoccurrence also deceased had informed her mother about appellantmeeting her at Georai bus stand and abusing her in the backdrop ofdemand. Finally getting fed up of ill treatment she came home andconsumed poison. He is solely responsible. There is no other reason forcommitting suicide. Not only death has taken place within 7 years and,therefore, as all charges are cogently proved, according to the learnedAPP, trial court has committed no error in recording guilt of husbandalone and, hence, he prays to dismiss the appeal for want of merit.EVIDENCE ON RECORD8.PW-1 Indramohan, panch to spot panchanama Exhibit-25. Hedeposed about panchanama having drawn and in his presence policeseized bottle found in the front room.9.PW-2 Dwarka stated that she new informant, his daughter,son-in-law and the parents and brother of the son-in-law. That, the 7 Cr.Appeal.524.2003marriage being performed 6 months prior to the death of Jyoti and herhusband residing in the rented room owned by informant. According tothis witness, one and half month prior to the death there was quarrelbetween the deceased, her husband, brother of her husband and in-lawson the road itself. The reason behind the quarrel was dowry amount.Later on, she heard shouts of the mother of Jyoti and when she came outshe found Jyoti unconscious and strong smell emanating from her mouthand she having taken to the hospital and she expired on the next day.10.PW-3 Bhimabai neighbour deposed at Exhibit 29 aboutdeceased and her husband came to reside in the rented house ofinformant but in chief itself this witness stated that she was not knowinganything about the matrimonial relations between Jyoti and her husbandbut stated that there was quarrel between in-laws of Jyoti and parents ofJyoti.11.PW-4, PW-5 and PW-6 are colleagues and teachers ofdeceased who were working as teachers in the primary school atRajpimpri and they all deposed that on 10.11.2001, it was last workingday before Diwali. That day school was over by 12:00 noon. They all anddeceased travelled from Rajpimpri to Georai bus stand. 8 Cr.Appeal.524.200312.PW-7 Gaulan mother testified that at the time of talks ofmarriage an amount of Rs.50,000/- was decided as dowry and 2 tola goldto be given to the husband. As per agreement Rs.20,000/- and half tolagold were given and remaining were agreed to be paid after marriage,which was performed on 06.04.2001. After spending one and half monthat Borfadi her daughter and son-in-law came to reside in her house itselfbut on rent basis and they went for attending services in the morning andreturned in evening. According to this witness, husband started harassingher daughter Jyoti over unpaid dowry and gold since 2 months prior tothe incident. 1 ½ month prior to the incident her daugher’s in-laws andbrother of husband had came to the house and at that time quarrel wasraised over unpaid dowry. One month prior to the incident her daughterwas beaten by her husband in the backdrop of unpaid dowry and gold.On 10.11.2001 around 03:45 p.m. while she and her daughter-in-lawwere on the terrace deceased Jyoti came and after uttering "मी जगत नाही"she fell unconscious and was taken to the hospital. According to thiswitness her daughter consumed poison and committed suicide.13.PW-8 Arjun informant father also stated about dowry ofRs.50,000/- being fixed, Rs.30,000/- and half tola gold given at the timeof marriage and remaining to be given after marriage. Even according tohim, after 2 months husband started demanding balance dowry amount 9 Cr.Appeal.524.2003and gold and harassed his daughter. One and half month prior to theincident parents and brother of his son-in-law came and demandedunpaid dowry amount and gold and abused in filthy language. On10.11.2001, when he returned home from outside, saw his daughterunconscious. She died because of consumption of poison and, therefore,after her death he lodged report.14.PW-9 and PW-10 are Investigating Officers who narratedabout respective steps taken by them at the time of investigation till filingof the charge-sheet.ANALYSISSection 498-A of IPC:15.Admitted position is that deceased Jyoti and presentappellant got married on 06.04.2001. Though both are by occupationteachers, but they are teaching in different schools. There is further nodispute that at the time of incident deceased and present appellant wereresiding in very property owned by informant but on rent. The incident ofconsumption also seems to have taken place in the very premises ofinformant.Prosecution came with the case that at the time of fixingmarriage, it was agreed that Rs.50,000/- by way of dowry amount and 2tola gold would be given. It was further agreed that at the time of 10 Cr.Appeal.524.2003marriage Rs.20,000/- cash and half tola gold was given to the husbandand remaining Rs.30,000/- and one and half tola gold was to be givenafter marriage. Here it is noticed that there is no independent witnesswho was party to the said meeting where above talks were agreed. Oncarefully reading evidence of mother PW-7, it is emerged that accordingto her, her daughter and son-in-law i.e. the appellant since about one andhalf month had come to stay in the room of her house on rent basis.According to her, appellant started harassing her daughter over unpaiddowry of Rs.30,000/- and half tola gold. One and half month prior to theincident parents and brother of appellant had come and raised quarrelover unpaid dowry. She gave names of neighbours as Abhiman Kate,Dwarka Sanap and other persons. Again she stated that appellant husband used to quarrel andharass her daughter. One month back he beat her and while Jyoti wasweeping inquiry was made with her and she told that husband beat herover unpaid dowry of Rs.30,000/-. Therefore, according to mother, 1 month prior to the deathof Jyoti, husband had beaten her for unpaid dowry. In cross, at paragraphno.15, mother had admitted that police did not record her statement. Shefurther candidly admitted that for the first time she was deposing that herdaughter after marriage went to reside at Borfadi and one and half 11 Cr.Appeal.524.2003month thereafter, there was harassment to her over Rs.30,000/- and oneand half tola gold and husband always used to harass over the same.16.Now, if we analyse evidence of informant father PW-8, thesum and substance of his evidence is also that two months after marriageeverything was smooth. Thereafter, according to him, appellant husbanddemanded balance dowry of Rs.30,000/- and one and half tola gold tohim, then he stated that over it husband started harassing his daughter.17.Firstly, his evidence shown that demand was made to himdirectly and not to his daughter. Secondly, he merely makes a vague andgeneral allegations that husband started harassing his daughter. Whatwas the nature of harassment has not been clarified by him. As pointedout by the learned counsel for the appellant, if we visit his cross, moreparticularly, para 12, following omissions are brought on record and thesame are got proved through Investigating Officer; “that, his familymembers and family members of accused were present for the initial talksof marriage; that it was agreed to give Rs.50,000/- and 2 tola gold asdowry; Rs.20,000/- cash and half tola gold given at the time of marriage;that unpaid dowry was decided to be paid after marriage; that aftermarriage his daughter went to reside at Borfadi and stayed there for oneand half month”. He answered that while lodging report he had stated tothe police that his daughter told him to give Rs.30,000/- and one half 12 Cr.Appeal.524.2003tola gold to her husband. But he is unable to state why police did nottake note of it. He also answered that while lodging FIR he had reportedthat one and half month prior to the incident parents of appellant andbrother of appellant had came to the house and had demandedRs.30,000/- and 1 ½ tola gold to them. He is unable to assign reason whyit is not appearing in the report. Omission is also brought as regard toappellant breaking watch of deceased Jyoti in paragraph no.13. Hecandidly answered and admitted that accused has not demandedRs.30,000/- for the purpose of grape garden at any time but such versionis finding place in his report Exhibit 52. Remaining cross is on otheraspect. Therefore testimonies of his mother and father of deceasedare apparently full of material omissions, which are going to the very rootof prosecution case. Mother has candidly admitted about first timedeposing about decided dowry part of it being paid and for remainingunpaid dowry and gold there was harassment. Informants evidence alsois shown to be full of material omissions. Therefore very testimonies ofparents of deceased, is falling short of essential requirements forattracting Section 498-A of IPC. They merely used word harassment andill treatment without elaborating it’s nature and only mentioning aboutthere daughter being beaten once that too one month prior to the deathof Jyoti. 13 Cr.Appeal.524.200318.That, PW-2 and PW-3 are examined by prosecution who areacquaintance and neighbour. PW-2 merely stated that there was quarrelover dowry amount. However, this witness in cross para 7, she stated thatone and half month prior to the death of Jyoti her husband, brother ofher husband and her in-laws were quarreling on the road, the same is notfinding place in the statement of police and she is unable to assign why itis not finding place in her statement. In cross she admitted that for thefirst time that she had stated to the police that there used to be quarrelbetween the deceased and her husband. Likewise PW-3 in chief itself hasstated that she does not know on what count there used to be quarrelbetween Jyoti and her husband or quarrel between in-laws of Jyoti andparents of Jyoti. Therefore, considering the evidence of parents ofdeceased, PW-2 and PW-3, prosecution evidence is weak and falling shortto attract rigors of Section 498A of IPC.19.In umpteen cases the Hon’ble Apex Court has time and againdealt and discussed the requirements for attracting Section 498-A i.e. inthe cases like Giridhar Shankar Tawade v. State of Maharashtra (2002) 5SCC 177; Gurnaib Singh v. State of Punjab (2013) 7 SCC 108; State ofAndhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582; BhaskarLal Sharma v. Monica (2009) 10 SCC 604 and K. Subba Rao v. The Stateof Telangana (2018) 14 SCC 452. 14 Cr.Appeal.524.2003Considering the law settled in such cases and comparingwith the above discussed testimonies of prosecution witnesses in theconsidered opinion of this court there is weak and fragile evidence on thepoint of Section 498-A of IPC.Sections 304-B and 306 of IPC:20.Conviction is also recorded for offence under Sections 304-Band 306 of IPC. According to prosecution, on 10.11.2001, appellant husbandharassed deceased in the backdrop of demand of unpaid dowry ofRs.30,000/- and one and half tola gold and, therefore, precisely for thesaid reason she consumed poison. Prosecution has adduced evidence of PW-4, PW-5 and PW-6Teachers, but their evidence is absolutely of no avail to the prosecution.From their testimonies it has merely come on record that on 10.11.2001after the school was over by 01:00 p.m., deceased had reached up toGeorai bus stand. When it is a case of prosecution that appellant husbandmet her on bus stand and put up demand and quarrel being taken to thatextent at the bus stand, then it was expected by prosecution to adduceevidence in that regard. Unfortunately there is no distinct evidence aboutappellant and deceased meeting at Georao bus stand after she returnedfrom school. Though the Investigating Officer in cross has admitted that 15 Cr.Appeal.524.2003he made investigation at bus stand, there is no distinct and independentevidence about both the appellant and deceased together at the bus standand, further, no evidence about talks or conversation taking placebetween them at the bus stand.21.According to mother PW-7, she and her other daughter-in-law were on the terrace at about 03:45 p.m. That time her deceaseddaughter arrived and informed that she had met the appellant husbandon the bus stand. Thereafter this witness deposed that she allegedlyinformed deceased that she would come down. But deceased herselfcame on the terrace and said that " मीजगतनाही" (she will not survive)and she fell unconscious and was therefore taken to hospital. On analysing the said evidence on record it is emerging thatfrom bus stand deceased had reached her own house as there wasconversation between deceased and PW-7, however, what exactlyhappened at the bus stand or even after reaching the house till deceasedherself climbed to the terrace is a mistery. There is no evidence to showthat on that day after deceased alighted at Georai bus stand and shereached her own house, accused had come in her contact. What madedeceased to consume poison is unclear. Unless it is shown that accusedsubjected deceased to such cruelty that she is left with no otheralternative but to go and consume poison or that accused after meeting 16 Cr.Appeal.524.2003deceased abated and induced her to consume poison, guilt cannot befastened against him. Admittedly, deceased alone had reached her placefrom Georai bus stand and consumed poison in her own house. Presenceof accused is not established at Georai bus stand. What happened at busstand is not conveyed by deceased and she merely informed PW-7 thatshe met her husband at Georai bus stand but what exactly had happenedat Georai bus stand, is not known to any one and there is no clearevidence in that regard. Therefore, unless there is material showing thatappellant husband subjected deceased to such cruelty on 10.11.2001 thatshe was left with no other alternative but to end up her life or he inducedand abated her and, only due to it, she consumed poison, it is unsafe tofasten guilt on appellant. Consequently, in the considered opinion of thiscourt, when there is no evidence to show either presence of accused atthe bus stand or on the way to her house or at the place whereconsumption was made, he cannot be held responsible for herconsumption. From where poison was brought is also not surprisinglyinvestigated by the Investigating Officer.22.Therefore in the light of available material on record, itcannot be said that charge of Section 306 of IPC is brought home. Evencharge of Section 304-B of IPC cannot be fastened for the simple reasonthat what this provision contemplates is that cruelty and ill treatment 17 Cr.Appeal.524.2003being meted out in the backdrop of dowry demand soon before saidconsumption. But prosecution witnesses are speaking about accusedhusband putting up demand since 2 months prior to the incident.Therefore, even charge of Section 304 of IPC fails.23.Perused the judgment under challenge.24.In the considered opinion of this court, learned trial courthas not appreciated the evidence on record. Only examination-in-chief ofparents seems to be taken into consideration. Cross which carriedmaterial omissions has not been taken into account and even notdiscussed while arriving to the finding and drawing conclusion.Resultantly, there is improper appreciation and hence needs interference.Accordingly, I proceed to pass following order : ORDERI)Criminal Appeal No.524 of 2003 is allowed.II)The conviction awarded to appellant Dattatraya Kerba Ghugein Sessions Case No.51 of 2002 by the learned III Ad-hoc AdditionalSessions Judge, Beed, on 21-07-2003 for the offence punishableunder Sections 498-A, 306, 304-B of the Indian Penal Code, standsquashed and set aside. III)The appellant stands acquitted of the offence punishableunder Sections 498-A, 306, 304-B of the Indian Penal Code. 18 Cr.Appeal.524.2003IV)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 order inrespect of disposal of muddemal. [ABHAY S. WAGHWASE, J.]marathe