High Court
Legal Reasoning
1 Cr.A717&R.403.03IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 717 OF 20031.Sambhaji S/o Chudaman Patil,Age: 23 years, Occu.: Labour,2.Seetabai W/o Chudaman Patil,Age: 51 years, Occu.: Labour,3.Chudaman S/o Raghunath Patil,Age: 61 years, Occu.: Labour,4.Pintu @ Chintaman S/o Chudaman Patil,Age: 26 years, Occu.: Labour,All R/o. Nipane, Taluka Pachora,District Jalgaon .. Appellants (Ori. Accused Nos.1 to 4 respectively)Versus.State of Maharashtra .. Respondent …Advocate for Appellants: Mr. Joydeep ChatterjiAPP for Respondent/State: Mr. A. A. A. Khan…WITH…CRIMINAL REVISION APPLICATION NO. 403 OF 2003.Atmaram S/o Baliram Patil,Age: 60 years, Occu.: Agri.,R/o.: Don (digar), Tq.: Chalisgaon,Dist.: Jalgaon.. Petitioner(Ori. Compl.)Versus1.Sambhaji S/o Chudaman Patil,Age: 23 years, Occu.: Labourer, 2 Cr.A717&R.403.032.Seetabai Chudaman Patil,Age: 51 years, Occu.: Labourer,3.Chudaman S/o Raghunath Patil,Age: 61 years, Occu.: Labourer,4.Pintu @ Chintaman S/o Chudaman Patil,Age: 26 years, Occu.: Labour,All are R/o. Nipane, Tal-Pachora,District: Jalgaon5.The State of Maharashtra .. Respondents (Resp. Nos.1 to 4 are Org. Accused)…Advocate for Applicant: Mr. Paresh B. PatilAdvocate for Respondents No.1 to 4: Mr. Joydeep ChatterjiAPP for Respondent No.5/State: Mr. A. A. A. Khan…CORAM:ABHAY S. WAGHWASE, J.Reserved On:26.06.2024Pronounced on:03.07.2024JUDGMENT:1.Instant appeal arises out of judgment and order passed bylearned First Adhoc Additional Sessions Judge, Jalgaon, dated08.10.2003 in Session Case no. 119 of 2001 convicting present appellantsfor offence under Section 498-A read with Section 34 of the Indian PenalCode, 1860 (IPC) and sentencing them to suffer rigorous imprisonmentfor 3 years and to pay fine.Acquittal of accused from charge under Sections 304-B readwith Section 34 of IPC and 306 read with Section 34 of IPC is questionedby original complainant by filing above Revision. 3 Cr.A717&R.403.03FACTS LEADING TO THE TRIAL ARE AS UNDER2.In all 4 accused were charge-sheeted by Pachora PoliceStation on report lodged by PW-1 Atmaram at Exhibit 33 on the premisethat Vaishali was married to appellant / husband Sambhaji in the year2001. After 8 days when informant brought her, she complained aboutbeating and ill treatment by all accused and not providing food forremaining dowry of Rs.9,000/- and for demand of Rs.50,000/- for settingup grocery shop. As above demand was not met Vaishali was abused,beaten and ill treated. On 31.03.2001 Vaishali Vomitted and died and,therefore, father lodged report with Pachora Police Station againsthusband and in-laws resulting into registration of crime.After conclusion of investigation and on gathering sufficientevidence against accused, they were made to face trial for charge underSections 498-A, 304-B, 306 all read with Section 34 of IPC before FirstAdho Additional Sessions Judge, Jalgaon, who on appreciating theevidence of prosecution, by his judgment and order dated 08.10.2003convicted appellant Sambhaji, Seetabai, Chudaman and Pintu by holdingthem guilty for offence under Section 498-A read with 34 of IPC.However, they were acquitted for charge under Sections 304-B read withSection 34, 306 read with Section 34 of IPC.Above judgment is questioned by appellants convicts as wellas complainant who is aggrieved by acquittal of accused from charge 4 Cr.A717&R.403.03under Sections 304-B read with Section 34, 306 read with Section 34 ofIPC, preferred Revision. Both proceedings being arising from a commonjudgment, are dealt and decided together.SUM AND SUBSTANCE OF THE EVIDENCE IN TRAIL COURT3.It seems that prosecution has adduced evidence of in all 11witnesses. Their role and status and the sum and substance of theirevidence is as under : PW-1 Atmaram informant father deposed that marriage of Vaishali wasfixed with Sambhaji and dowry of Rs.32,000/- was fixed. Out of itRs.23,000/- was paid. For remaining Rs.9,000/- and foradditional Rs.50,000/- for setting up gorcery shop accused personill treated his daughter and she reported him, as well as his wifepersonally saw ill treatment. Vaishali died only due to illtreatment and cruelty meted out to her. PW-2 Ashok Panch to seizure of postcard Exhibit 38.PW-3 Mathurabai mother deposed that at the time of marriageRs.32,000/- was fixed by way of dowry and Rs.23,000/- weregiven at the time of marriage. Rs.9,000/- had remained by way ofbalance. After 2 to 4 days her daughter came and accused fatherin-law came to fetch her and at that time he demanded balance ofRs.9,000/- unpaid dowry and even demanded Rs.50,000/- forgrocery shop. She accompanied daughter to her matrimonialhouse and in her presence accused ill treated her daughter. After 7 5 Cr.A717&R.403.03to 8 days news was received that Vaishali was serious and shevomited blood. In the undergarment of her daughter postcard wasfound and her husband has handed it to police.PW-4 Dr. Ramkrishna Autopsy Doctor who conducted post mortemopined that death was due to poisoning.PW-5 Panch to Inquest Panchana Exhibit 44, Spot Panchana Exhibit 45and Seizure Panchanama of Vomit and earth Exhibit 46.PW-6 Second Panch to seizure of postcard and notebook Exhibit 48.PW-7 Gangubai Cousin of deceased deposed about Rs.32,000/- dowrybeing fixed , Rs.9,000/- remained unpaid and after 8-10 dayswhen her sister came she told about demand of remaining dowryand Rs.50,000/- for grocery shop and on such count there to be illtreatment. After residing 10-15 days Vaishali went back. After 8 to10 days thereafter message was received that Vaishali was serious.All went to Nipane and they found her dead body in Osari. PW-8, | Investigating Officers.PW-10| and| PW-11 |PW -9 Parshuram is Handwriting Expert, who issued opinion Exhibit 74.
Legal Reasoning
6 Cr.A717&R.403.03SUBMISSIONSOn behalf of the appellants:4.Criticizing the judgment learned counsel for the appellantspointed out that prosecution had failed to establish the charges beyondreasonable doubt. That, allegations of ill treatment made by prosecutionwitnesses, more particularly, informant father, mother, cousin are allvague, general and non specific on the point of ill treatment. He took thiscourt though the evidence of all such witnesses and also pointed out tothe cross faced by all these witnesses. According to him, there suchtestimony is firstly not consistent and secondly, there are variances andimprovements. According to him, cruelty as contemplated under law isnot shown to be meted out to deceased Vaishali. That, there are omnibusallegations without giving nature of ill treatment and without specifyinginstances of harassment. 5.He further submitted that though informant spoke aboutdowry amount fixed prior to marriage in presence of several persons andthough they are named, none of them is examined. As such, according tohim, there is no independent evidence to corroborate testimonies offamily members, who have implicated accused out of annoyance.6.It is his further submission that there is no clinching evidencethat only because of dowry demand or cruelty deceased consumed 7 Cr.A717&R.403.03poison. He pointed to the testimonies of the Autopsy Doctor and C.A.Report and would submit that no poison was detected in the vomit andtherefore, there is no convincing or legally acceptable evidence in supportof case of suicidal consumption. He pointed out that family membersattempted to foist postcard with deliberate intention to implicate accusedand even learned trial court rightly discarded such evidence ofprosecution. Consequently, it is his submission that when trial courtacquitted accused from charge under Section 304-B read with Section 34of IPC and Section 306 read with Section 34 of IPC, how charge ofSection 498-A read with Section 34 of IPC can be fastened. Thus, hequestions the findings, legality and sustainability of the impugnedjudgment and prays to allow the appeal by setting aside the same.On behalf of the State:7.Per contra, learned APP supported the judgment bysubmitting that for remaining dowry accused persons maltreated Vaishali.Barely after few days of marriage she reported demand and ill treatmentto her parents and cousin. That witnesses categorically and consistentlyspeak about visit of accused father in law putting demand of remainingdowry amount and even additionally demanding Rs.50,000/- for settingup grocery shop. That, in presence of mother there was ill treatment to 8 Cr.A717&R.403.03deceased Vaishali and thus according to the learned APP charges ofSection 498-A read with Section 34 of IPC are squarely proved.On behalf of the applicant in Criminal Revision Application:8.Learned counsel for original complainant took exception tothe acquittal of accused from charge under Section 304-B read withSection 34 of IPC and Section 306 read with Section 34 of IPC and wouldsubmit that learned trial court has failed to consider and appreciate theevidence in correct perspective and has not taken into account the factthat death has taken place due to harassment and ill treatment within 7years of marriage. It was apparently a dowry death. There was no otherreason for deceased to consume poison. Vaishali died while she was inthe company and custody of accused. They have abated the suicide and,therefore, all accused ought to have been held responsible for charge ofSection 304-B read with Section 34 of IPC as well as Section 306 readwith Section 34 of IPC, however, learned trial court having failed, heprays to allow the Revision and hold the accused guilty for the abovecharges and punish them as per law.JUDICIAL PRECEDENTS9.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) 5 9 Cr.A717&R.403.03SCC 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.ANALYSIS10.Precise case of prosecution is that Vaishali was married toappellant Sambhaji and an amount of Rs.32,000/- was fixed as dowry. Atthe time of marriage cash of Rs.23,000/- was given and Rs.9,000/- hadremained unpaid. For said amount and for additional Rs.50,000/- to setup grocery shop Vaishali was subjected to cruelty.11.On carefully sifting the evidence of informant father atExhibit 28, it is noticed that according to him after marriage Vaishaliwent for cohabitation and after 8 days he himself went to fetch her andafter she was brought, she complained that all accused beat, ill treatedher and did not provide sufficient food for remaining dowry of Rs.9,000/-as well as demand of Rs.50,000/-. That, such complaint was made inpresence of Tulshiram, Vishram, Uttam Patil, Himmat Patil and GangubaiPatil. Thereafter, her father in law had come to fetch her and hedemanded unpaid dowry and Rs.50,000/- and further allegedly said thatif there is no money, then to give pair of bullocks. While taking hisdaughter he again said that if amount is not paid and bullocks are not 10 Cr.A717&R.403.03given, he would do whatever he want to. Therefore, he suspected andsent his wife along with his daughter and his wife stayed for 3 days at hermatrimonial house. During such 3 days in his wife’s presence accusedhusband beat her, ill treated her and rest of the accused abused her. Nextday when he himself went, his daughter complained about above unpaiddowry, Rs.50,000/- for shop or a pair of bullocks and she reported cruelty.He further stated that his daughter said that if amount is not givenaccused persons would kill his daughter.In cross he answered that he gave Rs.23,000/- at the time ofmarriage for clothes and for ornaments. He further admitted that it is theaccused persons who had borne the expenses of marriage. In para 6 ofcross he answered that accused no.3 has 25 Bigha land and that theyhave a bullock cart and their financial condition is sound, whereas hisfinancial condition is not much sound. Again in cross at para 7 heanswered that on the next day of marriage itself Vaishali had come to hisplace and had resided for 10 to 12 days and that time she did not madeany compliant and accused no.3 had come to fetch her and 10 daysthereafter he himself went and brought her. He admitted that he neverlodged report with police. Para 11 of the cross has following omissions, which are notfinding place in Exhibit 33, “Giving Rs.23,000/- to accused no.3 towardsdowry; accused persons not providing sufficient food to his daughter; 11 Cr.A717&R.403.03accused no.3 threatening that he will do anything if amount is not paidand bullocks is not given; daughter complaining that if the amount is notgiven accused persons would ill treat her”, these are material omissions. 12.PW-3 mother, stated about amount of Rs.32,000/- fixed asdowry and Rs.23,000/- paid and Rs.9,000/- remained unpaid. Accordingto her, after 2 to 4 days of marriage Vaishali came to their place andstayed for 3 to 4 days. That, when accused no.3 came to fetch her hedemanded unpaid dowry and Rs.50,000/- for shop. That, when he wastold that her financial condition was poor accused no.3 said that if shehas no money then give pair or bullocks and when the same was notgiven he said that he would do whatever he wanted to and, therefore,getting suspicious she accompanied her daughter to her matrimonialhouse, stayed for 2 days. In her presence all accused were ill treating her. 13.PW-7 cousin also stated about Rs.32,000/- dowry to be fixedat the time of marriage and Rs.9,000/- remained unpaid. When Vaishalicame to maternal house, she told that there was ill treatment forRs.9,000/- and Rs.50,000/- for grocery shop. Vaishali’s father-in-lawcame to fetch her and he demanded unpaid dowry and Rs.50,000/- forshop. 12 Cr.A717&R.403.0314.What can be culled out from testimony of parents and cousinis that as pointed out, they are all though consistent on the point ofRs.32,000/- dowry being fixed and Rs.9,000/- remained unpaid, they arefound to be not consistent as to when exactly Vaishali came back aftermarriage and reported ill treatment. According to informant father, after8 days he himself went to fetch her after marriage. But in cross para 7, heis found to be deposing that on the very next day of marriage itselfVaishali came as per customs and at that time she spent 10 to 12 daysand made no complaint of any sought. His wife PW-3 is found to be deposing that after 2 to 4 daysof marriage Vaishali came to their place. Whereas, cousin PW-7 testifiedthat after marriage Vaishali stayed for 8 to 10 days at matrimonial houseand, thereafter, her father went to fetch her. Therefore above materialshows that when exactly Vaishali came after marriage to her parents’place is not clear. Witnesses are giving different period of arrival. Further, they are all speaking about hearing from Vaishalithat there was ill treatment. None of them has elaborated the nature andform of ill treatment. Cross of informant, para 11, exposed his testimonyto be full of omissions and they are material omissions going to the veryroot of prosecution version about cruelty and ill treatment. It is surprisingto note that in spite of PW-3 mother claiming regarding her daughter tobe ill treated and beaten in her own presence, no further steps are taken 13 Cr.A717&R.403.03either to object or to give understanding or even lodge report. On whatcount there was ill treatment and beating is not elaborated. So calledindependent witnesses whose name are provided by PW-1 Fatherregarding demand by accused no.3, are not examined. Therefore, there isno supportive evidence from independent corner. General and omnibusallegations are raised that there was ill treatment without furtherelaboration. 15.Learned trial judge has already acquitted accused fromcharges under Sections 304-B read with Section 34 of IPC and Section306 read with Section 34 of IPC . State had not preferred distinct appeal.16.However, complainant has preferred Revision questioningthe above acquittal of accused from above charges. Again, for attracting Section 304-B of IPC it is incumbentupon prosecution to establish that soon before death there was crueltyand ill treatment on the backdrop of dowry. Unnatural death should havetaken place within 7 years of marriage and such is the legal requirement.Here, above is the only evidence on record. Cross of very informant inpara 11 shows that he had not reported about Rs.32,000/- dowry fixed.No distinct evidence in that regard has come on record. There is omissionin FIR regarding payment of Rs.23,000/- being paid out of Rs.32,000/-and Rs.9,000/- remaining unpaid and for that there was ill treatment. As 14 Cr.A717&R.403.03discussed above, cruelty as contemplated under law has not been firmlyand cogently established by prosecution. It has not been demonstrated byprosecution that only in backdrop of unpaid dowry demand there wasmaltreatment and further cruelty and harassment was continuous innature and only therefore Vaishali committed suicide. 17.Here, at the outset , prosecution has not substantiated thatVaishali consumed poison. Though autopsy doctor has opined death dueto poisoning, analysis of the vomit did not yield any poison and it isevident from the very C.A. report issued by the analyser. Under such circumstances, what resulted death of Vaishalihaving remained unanswered, it cannot be said that death was unnaturalor it was due to suicide in the backdrop of any dowry demand. Whatexactly happened on 31.03.2001 is not getting clear. For the above saidreasons, no fault can be found in the conclusion drawn by the learnedtrial judge that prosecution failed to establish charge of Section 304-Bread with Section 34 of IPC and / or Section 306 read with Section 34 ofIPC.18.To sum up, here, there are general, omnibus, vagueallegations of ill treatment and harassment. None of the witnesselaborated form or gave instances of ill treatment or beating. Testimonyof very informant father apart from being full of material omissions, is 15 Cr.A717&R.403.03also not finding support from testimony of his own wife. Cousin’sevidence is silent about accused no.3 putting demand of unpaid dowry orin leave asking bullocks which is narrated by informant and his wife. Forabove reasons, family members are themselves not lending support toeach other on material count and so charges cannot be said to be provedbeyond reasonable doubt.19.After going through the judgment under challenge it isnoticed that learned trial judge has acquitted all accused from charges ofSection 304-B read with Section 34 of IPC and Section 306 read withSection 34 of IPC holding that said charges are not proved beyondreasonable doubt but at the same time, guilt has been fastened only foroffence under Section 498-A of IPC by relying on above inconsistenttestimonies, which are also full of material omissions. Therefore, there isapparent error on the part of the trial court in accepting such versions torecord guilty under Section 498-A read with Section 34 of IPC and,hence, interference is called for. Hence, I proceed to pass following order:ORDERI)Criminal Revision Application No.403 of 2003 is dismissed.Rule discharged.II)Criminal Appeal No.717 of 2003 is allowed. 16 Cr.A717&R.403.03III)The conviction awarded to appellants Sambhaji ChudamanPatil, Seetabai Chudaman Patil, Chudaman Raghunath Patil andPintu alias Chintaman Chudaman Patil in Sessions Case No.119 of2001 by the learned First Ad-hoc Additional Sessions Judge,Jalgaon, on 08.10.2003 for the offence punishable under Section498-A read with Section 34 of the Indian Penal Code, standsquashed and set aside. IV)The appellants stand acquitted of the offence punishableunder Section 498-A read with Section 34 of the Indian Penal Code.V)The bail bonds of appellants stand cancelled. VI)The fine amount deposited, if any, be refunded to theappellants after the statutory period.VII)It is clarified that there is no change as regards the order inrespect of disposal of muddemal. [ABHAY S. WAGHWASE, J.]marathe