High Court
Legal Reasoning
CriAppeal-825-2003-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 825 OF 20031.Pradip s/o Nabha Daga Nerpagare (Patil)Age 30 yrs. Occ. Agri.2.Nabha Daga Patilage 59 yrs. Occ. Agri.[Appeal abated as against appellant no.2 vide order dated 16.06.2016]3.Lahyabai Nabha Patil,Age 53 years, Occ. Household,all above r/o Village Vadji,Tq. Bhadgaon, Dist. Jalgaon.… AppellantsVersus1.The State of Maharashtra… Respondent…..Mr. R. N. Dhorde, Senior Advocate a/w Mr. Sanjay S. Dudhane,Advocate i/by Mr. A. R. Rathod, Advocate for the Appellants.Mr. K. K. Naik, APP for the Respondent-State...… CORAM :ABHAY S. WAGHWASE, J. Reserved on: 09.07.2024Pronounced on: 11.07.2024JUDGMENT : 1.By this appeal, the appellants are taking exception to theirconviction for offence under Section 306, 498-A r/w 34 of the IndianPenal Code [IPC] recorded by the 4th Adhoc Additional Sessions CriAppeal-825-2003-2- Judge, Jalgaon by judgment and order dated 29.11.2003 passed inSessions Case No. 139 of 2002.FACTS IN BRIEF, LEADING TO TRIAL2.Deceased Varsha was married to accused appellant no. 1 on01.04.2002. After marriage, she went to reside with her husband andin-laws. After cohabiting for 15 days, when she came, she complainedabout demand of Rs.1,50,000/- made by accused persons forpurchase of plot. In such background, there was ill-treatment andthreat to kill. On 10.06.2002, deceased hanged herself while she wasin the house of accused persons. Therefore, on report of PW1 father,crime was registered and after completion of investigation, in all fouraccused were chargesheeted and were tried by 4th Adhoc AdditionalSessions Judge, Jalgaon vide Sessions Case No. 139 of 2002 forcommission of offence under Sections 304-B, 306, 498-A r/w 34 ofIPC. Trial concluded in conviction of appellants-accused nos. 1 to 3for offence under Sections 306, 498-A r/w 34 of IPC, which is thesubject matter of challenge in the instant appeal.3.During pendency of the appeal, appellant no.2 Nabha DagaPatil died and appeal is abated as against him vide order dated CriAppeal-825-2003-3- 16.06.2016. Hence appeal of appellant nos. 1 and 3 only remains forconsideration.SUBMISSIONSOn behalf of the appellants:4.Learned senior counsel Mr. R. N. Dhorde appraised this Courtabout the charge, status of the parties and nature of complaint againstthe accused persons. According to learned senior counsel, in this case,prosecution has miserably failed to establish any of the charges. Hetook this Court through the testimony of PW1 father, PW3 motherand PW5 uncle and would submit that these family members are notconsistent or lending support to each other and are merely levellinggeneral allegations of demand and ill-treatment, without specifyingthe instances or nature of ill-treatment. He invited attention of thisCourt event to the cross faced by these wientsses and would submitthat there are material omissions and contradictions which are provedthrough the Investigating Officer. Thus, according to the learnedsenior counsel, there is no convincing and trustworthy evidence onthe point of cruelty so as to attract Section 498-A IPC. CriAppeal-825-2003-4- 5.Learned senior counsel took this court through the testimony ofPW2 Shevale, who was a Police Patil, and pointed out that hisevidence clearly shows that deceased hanged herself after closing theroom, for the best reasons known to her. Learned senior counselfurther took this court through the cross faced by this witness andwould submit that relatives of deceased had, at the earliest point,refused to lodge any complaint, and learned senior counsel furtheradded that, his such testimony is indicative of the fact that there isconcocted, false version at subsequent point of time, only upon duedeliberation with relatives. Learned senior counsel emphasized thatall relatives connived and got postmortem done at other place and notat the place where death has taken place. That, there, they had alldecided to falsely implicate accused and as such, according to him,there is apparently deliberate implication.6.Learned senior counsel pointed out that police did not recordstatement of mother of deceased and according to him, her crossshows that there was no demand. Learned senior counsel furtherpointed out that there is no convincing evidence to attribute abetmentor inducement to commit suicide. He strongly submitted that defencetaken by appellants in trial court was that deceased herself was nothappy with the marriage and the marriage had been performed CriAppeal-825-2003-5- against her will and wish and even parents as well as uncle haveadmitted in cross that she was reluctant to cohabit and was requiredto be forced to go to cohabit with husband. Therefore, it is hissubmission that, marriage was against her wish. That, her parents andrelatives had forced her to go for cohabitation and probably out ofannoyance and frustration, she might have ended up her life. That,accused are not at all concerned in any manner. However, accordingto learned senior counsel, all such aspects are not considered bylearned trial court. That, learned trial court also did not appreciatethe entire cross faced by prosecution witnesses. Thus, according tohim, the findings recorded and conclusion drawn is apparentlydiametrically opposite to the evidence. That, it was a case of noevidence and so he prays to interfere by allowing the appeal.On behalf of the State : 7.In answer to above, learned APP would submit that evidence ofparents and uncle of deceased clearly show that barely after 15 days,deceased came and reported about demand and ill-treatment. Therewas no other reason for her to falsely implicate accused personswithin a short span. According to him, there were clear threats to killfor non-fulfillment of demand. According to learned APP, accused had CriAppeal-825-2003-6- created circumstances and subjected her to cruelty, which was of suchdegree that deceased was left with no other alternative but to end herlife. That, finding convincing evidence, learned trial court correctlyapplied the law and finding all ingredients available, guilt has beenrecorded and as such, according to him, there is no reason to disturbthe well reasoned judgment.EVIDENCE ON RECORD 8.Prosecution has examined in all nine witness in support of theircase. Their role and status and the sum and substance of theirevidence can be summarized as under:PW1 Dilip is the informant-father of deceased. According to him,after 15 days of marriage, when his daughter came, shecomplained that accused demanded Rs.1,50,000/- forpurchasing plot and on such count, there was ill-treatment. On10.06.2002, message was received about death of his daughterVarsha. Therefore, he lodged report Exhibit 26.PW2Shevale, Police Patil, stated that on 10.06.2002, he receivedinformation about incident taking place in the house of accused.So he visited the house of accused, which was closed frominside. He peeped through the window and saw a lady hanging.He informed police vide khabar Exhibit 28. CriAppeal-825-2003-7- PW3Mangalabai, mother of deceased, stated that 15 days aftermarriage, when her daughter came, she told about demand andill-treatment. There was demand of Rs.1,50,000/- for purchaseof plot and there was ill-treatment and threat by accused that ifamount is not brought, she would be killed. Phone call wasreceived about Varsha hanging herself. PW4Arun has acted as pancha to spot panchanama Exhibit 31.PW5 Prithviraj is the uncle of deceased. He claims that at the time offestival of Akshay Tritiya, he learnt from deceased herself aboutdemand of Rs.1,50,000/- for purchase of plot and that therewere threats that if she failed, they would kill her. According tohim, therefore, Varsha was not willing to go for cohabitation.Message was received about her death and therefore allrelatives went. This witness has also acted as pacha to inquestpanchanama Exhibit 33.PW6ASI Kumawat, who noted the complaint and registered crimebearing no. 41 of 2002.PW7 Dr. Chavan was the autopsy doctor who opined death to be dueto asphyxia due to handing.PW8PSI Aher| are police officials who conducted investigation and| and AD inquiry, respectively.PW9PI Khillare| CriAppeal-825-2003-8- ANALYSISCharge of Section 498-A IPC9.As to what actually constitutes cruelty has been lucidly andsuccinctly dealt in the landmark cases of Giridhar Shankar Tawade v.State of Maharashtra (2002) 5 SCC 177; Gurnaib Singh v. State ofPunjab (2013) 7 SCC 108; State of Andhra Pradesh v. M.Madhusudhan Rao (2008) 15 SCC 582 ; Bhaskar Lal Sharma v.Monica (2009) 10 SCC 604 and K. Subba Rao v. The State ofTelangana (2018) 14 SCC 452.10.On critical analysis of testimonies of father, mother and unclei.e. PW1, PW3 and PW5, it is emerging that according to father PW1,after 15 days of cohabitation, when deceased came, she complainedthat all accused demanded Rs.1,50,000/- for purchase of plot. Forsaid purpose, there was ill-treatment. According to him, she also toldthat accused threatened that if she did not bring money, they wouldkill her. She further told that accused gave abuses and beating to her.However, it is noticed that here, there are as many as four accusedpersons. Who amongst them abused and in what manner, and who CriAppeal-825-2003-9- beat where, has not been stated by him. Therefore, allegations aregeneral in nature. In his testimony, he has stated that his sonSahebrao went to drop her and he convinced accused and assuredthat they would arrange the money. But such son of this witness i.e.brother of deceased, is not examined. As pointed out, his cross para 4shows that there are material omissions on the point of accused givingabuses and beating her, about son Sahebrao being told by accused tobring money and about Sahebrao convincing accused that he wouldarrange money. Para 5 of his cross, as pointed out, shows that fatherhas admitted that accused persons have irrigated land, a big house ina prime locality and appellant husband is the sole son. His suchanswer, as rightly pointed out, does indicate that accused persons arefinancially well-off.11.On careful scrutiny of mother’s evidence, i.e. PW3 Mangalabai,on the point of cruelty, it is noticed that as like her husband, she hasalso deposed about deceased informing about demand ofRs.1,50,000/-. Even her cross shows that she did not give anystatement to police, nor police made her inquiry and recorded herstatement. In para 3 of the cross, mother has admitted that it was notascertained from accused regarding the demand. CriAppeal-825-2003-10- 12.Likewise, PW5 uncle has not stated in his examination-in-chiefregarding any ill-treatment. Rather, his testimony is about his nieceinforming that accused used to demand Rs.1,50,000/- for purchasingplot. Para 4 of his cross shows that there are omissions about accusedthreatening to kill if she fails to bring the amount, about his niece wasreluctant to go for cohabitation with accused and about hearing fromdeceased regarding demand of Rs.1,50,000/-.13.Therefore, the sum total of testimonies of parents and maternaluncle, clearly shows that firstly, there are general and vagueallegations about ill-treatment. Secondly, there is omission on theirpart in the statements to police about threat to kill if demand is notmet. Neither of the parents have specified the nature and manner ofill-treatment or when it took place.14.Learned senior counsel was very categorical and emphatic inhis submissions that deceased was not happy with the marriage itselfsince the beginning. That, marriage was against her will and wish.There is force in above submission, as father informant himself incross para 6 has admitted that on 09.06.2002, i.e. one day prior to thealleged suicide, Varsha was reluctant to go to the house of accused CriAppeal-825-2003-11- and she was required to be send by giving understanding and yet shewent to accused reluctantly. Mother in para 2 of her cross, hasadmitted that when daughter came twice, she was required to giveunderstanding that it is not good for a newly married woman to cometo her parents frequently. Therefore, answers given by very parents ofdeceased, in a way support appellants’ contention that deceased wasnot happy with the marriage and was reluctant to cohabit.Resultantly, there is weak evidence on the point of cruelty so as toattract Section 498-A IPC.Charge of Section 306 of IPC :15.As regards the charge under Section 306 of IPC is concerned,admittedly Varsha hanged herself. Police Patil PW2 and even parentsof deceased speak about the room in which deceased hanged herselfto be locked from inside. There is no independent evidence to showpresence of accused at that point of time in the house so as to connectthem with the alleged hanging. Unless there is evidence suggestinginducement, abetment or that there was harassment to such extentthat deceased was left with no other alternative but to end up her life,it is unsafe to hold the charge of Section 306 IPC as proved. CriAppeal-825-2003-12- 16.Lastly, to sum up, here, there is no legally acceptable orconvincing evidence on any of the charge. Complainant admits thatthere was deliberation amongst relatives at Bhadgaon, where allrelatives came together and it was decided to lodge report. Even PW2Police Patil in cross has admitted that there was no complaint andrather relatives had refused to lodge complaint i.e. on the day onwhich occurrence came to light. Therefore, there is material clearlysuggesting and indicating that subsequently, only on due deliberation,an afterthought complaint has been lodged.17.Perused the judgment. Learned trial court seems to haveinvoked Section 113-A of the Indian Evidence Act. However, beforeinvoking said provision, prosecution is duty bound to first prove thefoundational facts and prosecution is not discharged from the burdenof proving the main charge. There are numerous citations of theHon’ble Apex Court on this point that, only when prosecution clearlyand cogently establishes the main charge and foundational facts, onlythen Section 113-A of the Evidence Act can be taken aid of. 18.Hence, here, for above discussed reasons, appellants succeed.Accordingly, I proceed to pass the following order:
Decision
CriAppeal-825-2003-13- ORDER I.The appeal is allowed.II.The conviction awarded to the appellants Pradip s/o Nabha DagaNerpagare (Patil) and Lahyabai Nabha Patil, by learned 4thAdhoc Additional Sessions Judge, Jalgaon in Sessions Case No.139 of 2002 under Sections 306 and 498-A r/w 34 of IPC on29.11.2003 stands quashed and set aside.III.The appellants stand acquitted of the offence punishable underSections 306 and 498-A r/w 34 of IPC.IV.The bail bonds of the appellants stand cancelled.V.Fine amount deposited, if any, be refunded to the appellantsafter the statutory period.VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre