1 APEAL 522 OF 1993 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.522 OF 1993 1. Rajaram Kisan Ghayal, age: 25 years, 2. Radhabai Kisan Ghayal, age: 50 years, Both resident of Vishnunagar, Pabalwadi, Taluka: Niphad, District: Nasik .. Appellants. -versus The State of Maharashtra .. Respondent. Mr. S.V. Kotwal, i/b Mr P. N. Joshi, for the Appellants Mrs. G. P. Mulekar, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 15th March, 2011 Oral Judgment 1. This appeal is directed against the conviction of the appellants for offences punishable under Section 306, 498-A read with section 34 of the Indian Penal Code, and sentence to suffer R.I. for one year and to pay fine of Rs.100/- or in default S. I. for one month on each count imposed upon appellant No. 1, and to suffer S.I. for three months and to pay fine of Rs. 100/- or in default S.I. for one month on each count imposed 2 APEAL 522 OF 1993 upon appellant No.2, by the learned Additional Sessions Judge, Nasik, upon conclusion of Sessions Case No.40 of 1993. 2. Facts which are material for deciding the appeal are as under:- The victim Sangita was married to appellant No.1 Rajaram on 20th April, 1992. She died of drowning in a well on 8th November, 1992. It was alleged that Sangita used to be illtreated by the appellants because of insufficient gifts given at the marriage and Sangita’s relations used to be called beggars. Sangita had returned to her matrimonial home on 1st November, 1992 just a week before the incident. On a report by maternal uncle Rangnath, an offence was registered and investigation commenced. 3. The police had already performed inquest and had caused postmortem examination to be conducted. Police then recorded statement of witnesses and on completion of investigation sent chargesheet to the Court of Judicial Magistrate First Class, Niphad, who committed the case to the Court of Sessions at Nasik. 4. The learned Additional Sessions Judge, to whom the case was made over, charged the appellants of the offences punishable under Section 498-A, 306 and 323 read with section 34 of the Indian Penal Code. Since appellants pleaded not guilty, they were put on trial at which prosecution examined in all six witnesses in its attempt to bring home the 3 APEAL 522 OF 1993 guilt of the appellants. 5. After considering the prosecution evidence in the light of defence of denial, learned Additional Sessions Judge, convicted and sentenced the appellants as mentioned above. Aggrieved thereby the appellants have preferred this appeal. 6. I have heard learned counsel for the appellants and learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the evidence on record. 7. P.W.1 Rangnath, the maternal uncle of the victim, stated that the victim was brought up by him and in fact he had performed her marriage with appellant NO.1 Rajaram. P.W.2, Changdeo Walmik is the victim’s uncle and P.W.3 Balu Shinde is the victim’s father. All of them stated that after marriage, victim used to report about her illtreatment at the hands of appellant to them. It was stated that around festival of Pola, victims right ear-lobe was torn because appellant No. 1 Rajaram had –beaten her with sickle. Rangnath P.W.-1, stated that he had requested the appellant No.2 Radhabai to tolerate the victim and condone her mistake if any since she was too young. P.W.4 Dr. Madhukar Kanade, who conducted postmortem examination stated that the death of victim was due to drowning. P.W.5, Head Constable Nimba Dagul, had conducted most of the investigation and P.W.6- Balwant Konde, API, had sent chargesheet. 4 APEAL 522 OF 1993 8. Learned counsel for the appellant submits that there was absolutely no demand on the part of appellants which could have been the cause for illtreatment to the victim. All that P.W. Nos 1 to 3, allege is that there was a grievance that the clothes given in the marriage were not proper and the gifts were meager. He submitted that this could not be equated to making of any unlawful demands. Learned Additional public Prosecutor submitted that humiliation of the victim because the gifts were not appropriate is one of the way of raising a demand and therefore, it cannot be said that merely because the gifts were not explicitly demanded, illtreatment of the victim had nothing to do with non fulfillment of unlawful demands or expectation of the appellants. All the same it cannot be lost sight of that there was no demand or signal to the victim that unless the demand was fulfilled, victim would not be allowed to live. 9. According to P.W.1 Rangnath, victim used to make grievance that her mother in law cursed her because the clothes in the marriage were not proper and utensils were meager. Sangita used to report to him that the appellant No.1 used to beat her. As soon as the appellant No.2 would start saying anything, the appellant No.1 used to say beat up the victim. P.W.1 Rangnath stated that they used to convince Sangita that she was just married and things will pass. He also stated about injury caused to Sangita’s right earlobe because 5 APEAL 522 OF 1993 of attack by sickle by the appellant No.1. He stated that Sangita told him that she did not want to go back. 10. Learned counsel for the appellant submits that this story about damage to the earlobe is a figment of imagination as inquest panchnama at exh.14 as also notes of postmortem examination at exh.17, make no reference to any such injury to earlobe. Learned Additional Public Prosecutor submitted that since this injury was allegedly inflicted around the time of Pola, it must have healed by the time of tragic incident and therefore failure of the panchas at the inquest to note injury cannot be equated to absence of injury. She submitted that postmortem notes cannot be used to discredit the evidence of P.W.1 Rangnath, and victim’s earlobe was indeed cut. Since inquest panchnama recites that both the ear rings and earlobe were found intact, it is difficult to believe that the victim might have suffered injury by sickle. P.W.1 Rangnath had stated in para 6 of his deposition that victim had told him that the appellant No.1 charged at her with sickle which got entangled in the victim’s earlobe and injured her earlobe vertically. Even if it is taken that the injury could have healed at the time of victim drowning, there is no reason for the Medical Officer not to notice any scar of healed injury. Therefore, possibility that no such injury was caused, cannot be said to have been ruled out. 11. Learned Additional Public Prosecutor points out that 6 APEAL 522 OF 1993 presence of injury on earlobe is admitted by the appellant No. 2, in answer to question No.4, in the statement under section 313 of Criminal Procedure Code. The appellant was asked about evidence of P.W.1. Rangnath about injury by the sickle to the earlobe. Appellant No.2 stated that due to constant use of earrings and because of weight of the earrings, the hole in the earlobe had expanded and the earring of Sangita was lost in the hut. Therefore, accused No.2 had told Sangita that they could get her ear stitched. If the hole in the earlobe gets expanded, it would not resemble an injury by a sickle. Therefore, possibility that the victim’s relations were trying to take an advantage of expanded hole of the earlobe to allege that the appellants had inflicted an injury with sickle on her earlobe cannot be ruled out. 12. The evidence about ill treatment is scanty and has surfaced only after incident. As rightly pointed out by the learned counsel for the appellant, even this evidence is doubtful since P.W.1 Rangnath has stated that he had entreated Sangita, the victim, to bear with things and that the things will get sorted. He stated that he prayed to the appellants to accommodate Sangita as she was too young. P.W.2 Changdeo stated in his cross examination that it was true that Rangnath and even he himself had entreated to appellant No.2 to accommodate Sangita, if Sangita committed any error. 7 APEAL 522 OF 1993 13. The evidence of father of victim Balu Shinde is not of much help since it was Rangnath, who had brought up the victim. Therefore, it is difficult to conclude on the basis of this evidence that the victim was subjected to any cruelty as defined in explanation (b) to section 498 of the Indian Penal Code. Even the learned Additional Sessions Judge in paragraph 18 of the judgment has observed that the case would fall under explanation (a), without referring to explanation (b) because evidence about demands and resultant illtreatment was inadequate. 14. The conclusion that the case attracted explanation (a) was drawn by the learned Judge, because he felt that the victim had committed suicide. Therefore, it would be necessary to examine whether victim could be held to have committed suicide. P.W.5 Head Constable Nimba, who had conducted inquest and spot panchnama was categorical that the well in question did not have parapet wall. The place from where victim drowned was slippery. P.W.5, Head Constable Nimba stated that one Kesharbai was working with victim in the field just before the incident. Kesharbai’s statement was recorded, but she has not been examined as witness. Kesharbai was not a partisan witness, who was likely to favour the appellant, since even according to P.W. 1 Rangnath, Kesharbai is related to him as she is wife of Bhaskar Bhadange. So non examination of Kesharbai, who had 8 APEAL 522 OF 1993 occasion to see the victim just before the incident would lead to the inference that she was not examined because her evidence was unlikely to help prosecution. If Kesharbai was working with victim just before her death, she could have stated as to whether the victim was likely to commit suicide or had simply gone to fetch drinking water and accidentally fell in the water. The reasoning given by the learned Judge unfortunately exhibits lot of imagination rather than assessment of what was on record, which was before him. He has observed in para 13 that the foot mark should have been visible at the spot which was missing, and possibility of the victim trying to hold objects whichever she could hold if she slipped etc. Learned Judge in para 14 of his judgment has observed about the absence of mud, stones in the clenched fists of victim. It is not clear how the learned Judge could hold that in accidental death mud must be found in the hands of the dead body. He has further observed that a human body will keep its mouth shut when it commits suicide because it determines to “die”. The source of this observation is not cited and therefore, it is clear how learned judge makes this observation. Therefore, learned counsel for the appellants is right in submitting that the conclusions about suicide drawn by the learned Judge are based more on imagination, conjectures and surmises, when the evidence before him was enough to indicate possibility of accidental fall. 9 APEAL 522 OF 1993 15. In view of the foregoing observations, the conviction of the appellants for offences punishable under Section 498-A and 306 read with section 34 of the Indian Penal Code can not at all be sustained. Appeal is, therefore, allowed. The appellants are acquitted of the said offences. Fine if paid be refunded to the appellants. (R. C. CHAVAN, J.)