High Court
Facts
{1} CRI APPEAL 567 OF 2003IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 567 OF 2003Bhaskar s/o Namdeo SolunkeAge: 32 years, Occu.: Agri.,R/o. Nagapur, Tq.Parli – Vaijinath,Dist.Beed.….Appellant (Ori. Accused)VersusThe State of Maharashtra…..Respondent …..Advocate for Appellant : Ms. Ashwini Annasaheb Lomte APP for Respondent : Mrs.Chaitali Choudhari - Kutti….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 05 SEPTEMBER, 2024 PRONOUNCED ON : 12 SEPTEMBER, 2024 JUDGMENT :- 1. Convict for offence punishable under Sections 498-A and 306of the Indian Penal Code (IPC) is hereby taking exception to thejudgment and order of conviction passed by II Adhoc AdditionalSessions Judge, Ambajogai dated 05-08-2003 in Sessions Case No.33of 2001. PROSECUTION STORY IN BRIEF2. Deceased Sumitrabai was married to appellant in the year {2} CRI APPEAL 567 OF 20031997. For a period of 6-7 months of marriage, everything wassmooth, but thereafter husband and in-laws subjected her to cruelty.Harassment was on account of their demand of Rs.10,000/- and onetola gold. For coercing her to see that their demand is met, she wasbeaten and kept starved. She reported it to her parents. In duecourse, she also delivered a baby boy. Till the child grew upto 2years, in above backdrop of demand, Sumitrabai was subjected tocruelty. Prosecution claims that finally getting fed up of the same,she jumped in the well alongwith child and ended up her life. PW1Eknath, father of deceased Sumitrabai, after completing last rituals,lodged report with Parali Rural Police Station, Dist.Beed, on thestrength of which, crime was registered and also investigated by PW7Lamture, who after completing investigation and on gatheringsufficient evidence, chargesheeted accused husband and in-laws forcommission of offence under Sections 498-A and 306 read with 34 ofthe IPC.At trial, case of prosecution was rested on evidence of in all 7witnesses. Defence denied to lead any evidence. On appreciatingand analyzing the evidence, learned trial Judge, held charged asproved, but only as against appellant husband alone i.e for offenceunder Section 498-A and 306 of the IPC and consequently, by
Legal Reasoning
{6} CRI APPEAL 567 OF 2003(II) Judgment of this Court in case of Ram S/o Digambar Giri andOthers v. The State of Maharashtra dated 15-06-2022 in CriminalAppeal No.175 of 2002.5.Lastly, while concluding she submitted that in the light ofabove, when necessary ingredients for both charges being missingfrom prosecution evidence, she questions impugned judgment and itscorrectness and finally prays to set aside the same by allowing theappeal. On behalf of State :6.Supporting the judgment of learned trial Judge, learned APPpointed out that barely after one and half months of marriage,deceased was harassed and subjected to cruelty by husband and in-laws for meeting their demand of cash and gold. That Sumitrabaireported about demand and ill-treatment to her parents. That theyhad expressed their inability to meet the said demand, however, stillmal-treatment continued and it went to such an extent that deceasedwas compelled to end up her life with a small child. According tolearned APP, at the time of alleged suicide, deceased was in thecustody of appellant husband and in-laws. That they cannot escape {7} CRI APPEAL 567 OF 2003without offering explanation as to how Sumitrabai went towards welland further found dead. According to her, they are solely responsiblefor her suicidal death as well as death of the minor. That learnedtrial Court has correctly appreciated available evidence and hasfound testimonies of parents not only worthy of credence but evenconsistent and that there was no inconsistencies and materialcontradictions so as to disbelieve their versions. Consequently, shecanvassed in favour of the impugned judgment and prays not todisturb well reasoned and sound judgment. EVIDENCE IN TRIAL COURT 7.In support of its case, prosecution has adduced evidence of inall seven witnesses. Sum and substance of their evidence is asunder : PW1 Dr.Praveen Kachrulal Tapadiya, Autopsy Surgeon, whoconducted post mortem on the body of Sumitrabai and her child,opined death due to “cardio respiratory arrest because of drowning”.PW2 Kevalbai w/o Eknath Jadhav, mother of deceased deposed thatafter 5-6 months of marriage, there was harassment and cruelty at {8} CRI APPEAL 567 OF 2003the hands of accused. She was subjected to beating and kept starvedregarding which she reported whenever she came maternal home.According to her, harassment and cruelty was in the backdrop ofdemand of Rs.10,000/- and one tola gold and because of the same,she jumped in the well with her son and succumbed to death. PW3 Eknath Narayan Jadhav, who is informant and father ofdeceased also in his evidence at exh.40 testified that Sumitrabai wasproperly maintained for 6-7 months after marriage. Thereafter,accused nos.1 to 5 started harassment and cruelty to Sumitrabai so asto bring one tola gold and Rs.10,000/- from her parents. There wasbeating and starvation. Whenever his daughter came, she reportedabout it. On 17-01-2001, a message was received about the suicide.After funeral, he lodged report. PW4 Prabhakar Digamberappa Tondare, Pancha to spot panchanamaidentified the same to be at exh.47.PW5 Shivaji Dhondiram Gund is Police Head Constable, whoentertained AD report received from Police Patil and subsequentlyregistered crime bearing no.7 of 2001. {9} CRI APPEAL 567 OF 2003PW6 Dattatraya Digamber Jadhav, cousin of deceased, stated that hiscousin sister died on 17-01-2001, who was married in 1997 withaccused no.1. She was properly maintained for 5-6 months.Thereafter, accused nos.1 to 5 started harassment and cruelty. Therewas beating to Sumitrabai for demand of Rs.10,000/- and one tolagold. When she came for festivals, she disclosed such facts tohim. On 17-01-2001 news of suicide was received. PW7 Basweshwar Ramlingappa Lamture, Investigating Officer, whonarrated all steps taken by him during investigation till filingchargesheet.ANALYSIS8. Here admitted facts could be summarized as under. Firstly,Sumitrabai was married to appellant husband in summer of 1997.Secondly, out of the wedlock they had two years old son. Thirdly,Dead body of Sumitrabai and her baby floating in the well belongingShivappa. 9.Here prosecution though examined seven witnesses, crucial {10} CRI APPEAL 567 OF 2003and relevant evidence is only of PW2 Kevalbai, PW3 Eknath and PW6Dattatraya i.e. parents and cousin of Sumitrabai. Meticulouslyanalyzed their testimonies. It is noticed that though consistent, theyall three are deposing about cruelty and harassment meted out toSumitrabai by all accused on account of demand of Rs.10,000/- andone tola gold. As pointed out none of them have spelt out or specifyas to what was the nature of cruelty either physical or mental andform of cruelty. They are unanimously using the word harassment,but in what form, is not stated by any of them. That apart none ofthem have specified as to when, where instances of cruelty orharassment took place. Out of three years cohabitation, it has comein the evidence of PW2 and PW3 parents that she spent 7-8 monthsin their house when she had come for delivery. If the child is of twoyears of age at the time of incident, then child was born within oneyear of marriage, but mother and father i.e. PW2 and PW3 are foundto be attributing harassment and ill-treatment after 7-8 months ofmarriage. Law contemplates that cruelty has to be proved beyondreasonable doubt. In umpteen judgments, essential ingredients forattracting offence under Section 498-A of the IPC are repeatedlydealt and discussed by the Hon’ble Apex Court. It is required to bedemonstrated that there was both physical and mental cruelty or {11} CRI APPEAL 567 OF 2003torture so as to attract charge under Section 498-A of the IPC. Hereit is conspicuously emerging that PW2 and PW3 parents and PW6cousin are deposing about cruelty and harassment, but they areneither giving instances or its details. The Hon’ble Apex Court in thecase of State of Andhra Pradesh v. M. Madhusudan Rao, (2008) 15SCC 582 observed that “Harassment simplicitor is not cruelty. Onlywhen such harassment is committed for the purpose of coercing awoman or any other person to meet an unlawful demand or propertyetc. alone would amount to cruelty punishable under Section 498-AIPC”.10.Here on visiting cross-examination of PW2 Kevalbai, moreparticularly paragraph 6, she is found to be answering thatSumitrabai never came to the house unless she was brought.According to her, first disclosure of harassment and cruelty was at thetime of first mango season after marriage. If marriage was of May1997 then first disclosure has to be during summer of 1998. She hasadmitted that one month prior to death of Sumitrabai, she hadattended ceremony of removal of hairs of child of deceasedcommonly known as “Jawal”. It is pertinent to note that she has notuttered a single word about hearing any ill-treatment either physical {12} CRI APPEAL 567 OF 2003or mental during such visit to her daughter. Her son Govindallegedly accompanied her to attend said ceremony but Govind is notexamined here. On the contrary, she answers that she returned backto the house when present appellant allegedly started levellingallegations against her. She even answers that she did not go to seegrandson, who was admitted due to some illness four moths prior tothe incident. Therefore, very aspect of harassment, cruelty in thebackdrop of any demand itself comes under shadow of doubt.Further she claims that deceased daughter came to see when herfather i.e. informant was admitted in the hospital, but informanthimself denied visit of his daughter till her death. Therefore, parentsare not consistent. Following omissions are brought in the testimony of PW2Kevalbai, mother of deceased : That she convinced accused persons that their demand would besatisfied, however, their demand could not be met; that despiteconvincing accused, they continued the act of harassment andcruelty. In paragraph 16 of cross-examination, she has admitted thataccused nos.1 and 3 own a big wada having several rooms.Likewise informant PW3 Eknath, father of deceased in cross-examination admitted that he gave daughter to accused husband as {13} CRI APPEAL 567 OF 2003he owned considerable land. He admitted that his daughter camehome only if she was brought. This suggests that there was nocontact by deceased herself at any point in any mode till sheallegedly visited parents house. In paragraph 14 of cross-examination, father too has admitted that accused no.1 and 3 has bigwada consisting four rooms and present appellant and his daughterresided separately and had separate cooking facility. 11.PW6 Dattatraya, cousin is resident of Musalewadi. He seemsto be son of uncle of deceased Sumitra. He merely stated thataccused nos.1 to 5 started harassment and cruelty and beating toSumitra to fulfill demand of Rs.10,000/- and one tola gold and shewas subjected to harassment and cruelty. He has also like his uncleand aunt i.e. PW2 and PW3 not given detail of cruelty or harassment.Consequently, in the considered opinion of this Court, evidenceon Section 498-A of the IPC is very weak and fragile in nature.Allegations are apparently vague and general in nature. 12.No doubt unfortunate death of Sumitrabai alongwith the childhas taken place in the well water, however, dead body was traced on17-01-2001. What preceded the jump or fall has not come on record. {14} CRI APPEAL 567 OF 2003There is no missing complaint. When Sumitrabai left house andcompany of husband and reached the well is not getting clear. Whatmade her to go towards well is a pure guesswork. There is nomaterial suggesting that in proximity to the jumping or fall, therewas any role played by appellant husband in either instigating,abetting, or inducing her to commit suicide. Parents have attendedceremony “Jawal” ceremony of child one month prior to the incident.As stated above, there are no allegations or any information fromSumitrabai. Witnesses directly speak about getting message onphone about dead body of child seen floating in well water andsubsequently, dead body of Sumitrabai also traced in same wellwater. When she went near the well, how did she fell, whether it wasaccidental or suicidal, was expected to be demonstrated byprosecution by leading cogent, convincing and legally acceptableevidence or even circumstances. Here unfortunately, there is neitherdirect or circumstantial evidence on the point of death of Sumitrabaiwith the child. Therefore, it is not open for anyone to assume orpresume that it was a case of suicide or otherwise unless suicidaljumping is cogently or firmly established. When there is no materialsuggesting instigation, abetment, inducement to commit suicide,charge of Section 306 cannot be said to be proved. {15} CRI APPEAL 567 OF 200313.Perused the judgment under challenge. Learned trial Judgeseems to have got influenced by the submissions of the State thatthere is death alongwith the child, but legal requirements forattracting the charges are patently not available and even reasons foraccepting prosecution version are not assigned by the learned trialJudge. Therefore, impugned judgment not being supported byconcrete findings and by assigning sound reasons, it cannot beallowed to be sustained. Appellant succeeds. Accordingly, I proceedto pass following order : ORDERI)Criminal Appeal No.567 of 2003 is allowed.II)The conviction awarded to appellant – Bhaskar NamdeoSolunke in Sessions Case No.33 of 2001 by the learned IIAdhoc Additional Sessions Judge, Ambajogai on 05-08-2003 forthe offence punishable under Sections 498-A and 306 of theIndian Penal Code, stands quashed and set aside. III)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. {16} CRI APPEAL 567 OF 2003VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. ( ABHAY S. WAGHWASE ) JUDGE SPT
Arguments
{3} CRI APPEAL 567 OF 2003judgment and order dated 05-08-2003, convicted appellant husbandbut acquitted rest of the accused from all the charges.Precisely there is challenge to above judgment and order ofconviction by husband by filing instant appeal.SUBMISSIONSOn behalf of appellant :3. Taking this court through testimonies of PW2 Kevalbai, PW3Eknath (parents of deceased) and PW6 Dattatraya, cousin ofdeceased, learned Counsel for the appellant submitted that going bytheir testimonies, it is abundantly clear that parents and cousin arelevelling vague, general and omnibus allegations. She took this courtthrough evidence of all three witnesses and submitted that they allmerely speak about cruelty and harassment without specifying natureof cruelty, manner of harassment or even when instances of crueltyand harassment took place. She emphasized that deceased had 2years old son and her marriage was of 1997. Therefore, for a periodof almost 3 years, there was no previous complaint of any soughtanywhere. Learned Counsel pointed out that vague allegations aremade that whenever deceased came to maternal home, she reportedharassment and cruelty, but exactly when she came and reported is {4} CRI APPEAL 567 OF 2003not getting clear from anybody’s evidence. She pointed out thatexcept parents and cousin, no other independent witness has beenexamined. She even pointed out that PW2 Kevalbai, mother ofdeceased named neighbours of accused i.e. Dagadu, Haribhau, Babuetc, who were mediators, but even they are not examined byinvestigating machinery. She further emphasized that there areallegations of demand of Rs.10,000/- and one tola gold, butallegations are attributed against all accused without specifying whomade demand and she also not stated for what demand was raised. Itis her submission that cruelty as contemplated under law is notproved from the testimonies of PW2, PW3 parents and PW6 cousin ofdeceased. Consequently, she questions very charge as well as guiltrecorded for offence under Section 498 of the IPC. She also posed aquestion as to how when in-laws are acquitted from all charges, onwhat basis husband alone held guilty, is not reasoned out by learnedtrial Judge and therefore, she questions maintainability andsustainability of the findings and judgment of guilt4.As regards to offence under Sections 306 of the IPC isconcerned, she would point out that to attract said charge, it isimperative for prosecution to positively establish beyond reasonable {5} CRI APPEAL 567 OF 2003doubt that there was abetment, inducement or instigation to commitsuicide. Here according to her, none of such essential ingredients areavailable in the prosecution evidence. She added that, at the firstcount, prosecution has not proved beyond reasonable doubt thatdeath of Sumitrabai and her child was only and only suicidal and nototherwise. On this count, she took this court through spotpanchanama wherein there is description of well and she pointed outthat it has come in evidence that it was a constructed well merelytwo feet above ground level and has stairs to go down and therefore,she expresses possibility of accidental fall while fetching water. Shefurther submitted that here there is no iota of evidence showingdeceased jumping with the child and therefore, according to her, it isnot open for prosecution to assume or presume death to be suicidalone. She also posed a question that there is nothing in proximity to17-01-2001 suggesting involvement of husband in either raisingalleged demand or subjecting deceased Sumitrabai to any mal-treatment and it was of further such gravity that she was forced totake extreme step of jumping that too with a minor. Consequently,she seeks reliance on following decision.(I) Judgment of Hon’ble Supreme Court in case of Kamalakar v. Stateof Karnataka dated 12-10-2023 in Criminal Appeal No.1485 of 2011.