(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. CRIMINAL APPEAL NO. 4 OF 2001 Vithal Mhasuji Gadhe, Age : 30 years, Occupation : Agriculture, R/o. Wadwali, Taluka : Paithan, .. Appellant District : Aurangabad. (Original accused no.1) versus The State of Maharashtra. .. Respondent. ....................... Mr. S.G. Chapalgaonkar, Advocate, for the appellant. Mr. B.V. Wagh, Additional Public Prosecutor, for the respondent. ........................ CORAM : SHRIHARI P. DAVARE, J. Date of reserving the judgment : 10th June 2011. Date of pronouncing the judgment : 17th June 2011. (2) JUDGMENT : 1. The challenge in the present appeal is to the judgment and order dated 7-12-2000, rendered by the learned IVth Additional Sessions Judge, Aurangabad, in Sessions Case No. 16 of 1998. 2. It appears that the accused nos.1 to 5 faced the trial under Sessions Case No. 16 of 1998 for the charges levelled against them under Sections 498-A, 306, 323, 504, read with Section 34 of Indian Penal Code, and the appellant herein i.e. original accused no.1 was convicted for the offences punishable under Sections 498-A, 306 and 323 of Indian Penal Code, and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1000/-, in default, to undergo further rigorous imprisonment for three months, for the offence punishable under Section 498-A of Indian Penal Code, and was also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 3000/-, in default, to undergo further rigorous imprisonment for six months, for the offence punishable under Section 306 of Indian Penal Code, was also sentenced to pay a fine of Rs. 500/-, in default, to undergo rigorous imprisonment for one month, for the offence punishable under Section 323 of Indian Penal Code, but was acquitted for the offence punishable (3) under Sections 504, 506, read with Section 34 of Indian Penal Code, whereas accused nos.2 to 5 were also acquitted for the aforesaid offences and, therefore, being aggrieved and dissatisfied by the said judgment and order of conviction and sentence in respect of appellant herein i.e. original accused no.1, present appeal is preferred. 3. The facts and events leading to the present appeal are as follows : (i) Accused no.1 i.e. appellant herein was married with the victim, namely, Surekha, about two years prior to her death and the accused nos.2 to 5 are relatives of accused no.1. Accused no. 2Sheshrao is her brother-in-law and accused no.3 Mhasuji is her father-in-law and accused no.4 Sow. Godabai is her mother-in- law, whereas accused no.5 Sau. Vandanabai is wife of accused no.2. It is alleged that after the marriage, deceased Surekha was treated well initially for a period of six months, but thereafter accused persons started to harass and illtreat her over demand of Rs. 25,000/- for the purchase of agricultural land. It is also alleged that when Surekha came to her parental house at the time of last Diwali, she disclosed about the unlawful demand of Rs. 25,000/- and illtreatment due to non-compliance thereof by the accused. But she was pacified and was sent back to her (4) matrimonial home. It is further alleged that Laxman (PW 2), father of Surekha i.e. complainant, had gone to the matrimonial home of Surekha to bring her for Nagpanchami festival. However, accused refused to send her and, therefore, he alone returned back. After some time, Surekha came to his house. At that time also, she disclosed that accused were demanding Rs. 25,000/- and threatened her that if the said amount was not brought, she should not return back. However, at that time, cousin brother of complainant, namely, Rameshwar, had expired and, therefore, she stayed back at parental house for some time. Thereafter, she was sent back to her matrimonial home. However, Surekha returned back on the same day and on inquiry, she disclosed that her husband i.e. accused no.1 had assaulted her with hunter as she had not brought the demanded amount. (ii) It is also case of the prosecution that on the next day, the complainant, namely, Laxman (PW 2) went to Grampanchayat office and called Nandu Kale (PW 5) and Sakharam Dhongade and narrated them about illtreatment sustained by his daughter Surekha at the hands of accused, in presence of accused nos.1 and 2 who were present there. Hence, both the said persons i.e. Nandu Kale (PW 5) and Sakharam Dhongade advised the accused, not to illtreat Surekha. Moreover, the complainant assured that he would pay the amount to the accused after sale of (5) sugarcane crop. Thereafter, the accused took Surekha to her matrimonial home with them. (iii) However, the prosecution case reveals that on 12-10-1997, when complainant was near the bus stand, he received news that Surekha was ill and hospitalized in Government Hospital. Hence, complainant rushed to the Government Hospital and found that Surekha had already expired. Accordingly, information was given to Police personnel at Paithan Police Station about accidental death and on that basis, Head Constable, Kaduba Bankar (PW 6) registered under A.D. No. 46/1997. Police arrived in the hospital and drew inquest panchanama of the dead body of Surekha and forwarded it for post mortem examination. Dr. Ramesh Khobare (PW 1) performed post mortem on the said dead body on 13-10-1997 and prepared post mortem report which is produced at Exhibit 10 and probable cause of death ascertained was due to poisoning, and viscera was sent for C.A. examination. (iv) It is also case of the prosecution that after cremation of dead body of Surekha, complainant i.e. Laxman (PW 2), lodged complaint with the Police personnel at Paithan Police Station and offence was registered against the accused under Crime No. 125/1997 on 13-10-1997 under Sections 498-A, 306, read with (6) Section 34 of Indian Penal Code. (v) Accordingly, investigation was carried out and Head Constable Kaduba Bankar (PW 6) prepared the panchanama of the scene of offence which is produced at Exhibit 17. Moreover, Kaduba Bankar (PW 6) recorded statements of witnesses, namely, Laxman (PW 2), Sushilabai, Raju Dhonde (PW 3), Nandu Kale (PW 5) and others. (vi) Moreover, after completion of investigation, Head Constable Kaduba Bankar (PW 6) filed charge sheet against the accused before Judicial Magistrate (First Class), Paithan. Since offence punishable under Section 306 of IPC was exclusively triable by the Court of Sessions, learned Judicial Magistrate (First Class) committed the case to the Court of Sessions at Aurangabad. Accordingly, charge against the accused was framed on 17-6-2000 under Exhibit 3 for the offences punishable under Sections 498-A read with Section 34, 306 read with Section 34, 323, 504 read with Section 34 and 506 read with Section 34 of IPC. The accused pleaded not guilty to the charges levelled against them and claimed to be tried. 4. To substantiate the charges levelled against the accused, the prosecution examined as many as six witnesses, as (7) mentioned below : (1) Dr. Ramesh Khobare (PW 1) - Medical Officer. (2) Laxman (PW 2) - Father of victim Surekha (complainant). (3) Raju Dhonde (PW 3) - Brother of victim. (4) Sk. Nijam (PW 4) - Panch witness to spot panchanama Exhibit 17. (5) Nandu Kale (PW 5) - Independent witness, and (6) Kaduba Bankar (PW 6) - Head Constable & Investigating Officer. 5. The defence of the accused is of total denial and appellant stated that Surekha died because of vomitting and lose motions, in his statement recorded under Section 313 of Cr.P.C. and accused submitted that he has been implicated in this case falsely and claimed to be innocent. The accused neither examined himself on oath nor examined any defence witness. 6. After considering oral as well as documentary evidence produced by the prosecution on record and after considering rival submissions advanced by the learned Counsel for parties, learned trial court acquitted accused nos.2 to 5 for the (8) charges levelled against them under Sections 498-A, 306, 504, 506 read with Section 34 of IPC, and acquitted accused no.1 for the offences punishable under Sections 504 and 506 of IPC, but convicted him for the offences punishable under Sections 498-A, 306 and 323 of IPC and sentenced him as afore stated. Hence, the appellant i.e. original accused no.1 has challenged the order of conviction and sentence by filing present appeal and prayed for quashment thereof. 7. Before adverting to the submissions advanced by learned Counsel for the parties, it is necessary to scrutinize the material evidence adduced and produced by the prosecution and in the said context, coming to the deposition of Laxman (PW 2) i.e. father of the victim, who stated that his daughter Surekha was married with accused no.1 Vithal about two years prior to her death and they had given dowry amount of Rs. 25,000/- and 10 gms. finger ring in the marriage, and after marriage she went to reside with the accused at her matrimonial home. Initially she was treated well for about six months, but thereafter accused started assaulting and illtreat her on account of demand of Rs. 25,000/- for the purchase of agricultural land. His daughter used to disclose about the same whenever she used to go to her parental house. Laxman (PW 2) has further stated that he had assured his daughter that he would pay the amount. He has also (9) stated that he had gone to her matrimonial home for bringing her for Nagpanchami festival, but accused refused to send her. However, on the next day, she came. On the third day, she was sent back. He has further stated that when his daughter had come for Panchami festival, his daughter had told him that accused were making demand of Rs. 25,000/- for the purchase of agricultural land and accused also threatened her that if the said amount was not brought, she should not come back. 8. Laxman (PW 2) has also stated that thereafter in Bhadrapad, his cousin brother Rameshwar expired and, therefore, Surekha stayed for about two days and during said visit, she disclosed that her husband and other inlaws were making demand of cash. However, Laxman (PW 2) did not give her any amount and sent her back to her matrimonial home. On the same day, she had gone to her agricultural field. However, accused no.1 assaulted her and told not to come unless she could bring Rs. 25,000/- and, therefore, accused no.1 had also assaulted her with hunter. Hence, she returned to her parental home on the same day and disclosed that accused no.1 had assaulted her and she showed weal marks on her back and, therefore, victim Surekha stayed at her parental home for some time. 9. Laxman (PW 2) has further stated that on the next day, (10) he went to Grampanchayat office and took two persons, namely Bandu Kale (PW 5) and Rakhmaji Dhongade. These persons had called accused no.1 Vithal in Grampanchayat office. At that time, accused no.2 came there. He has further stated that he told accused nos.1 and 2 that he would pay the amount after sale of sugarcane crop and that they should not illtreat his daughter Surekha. Accordingly, Surekha was sent back along with accused nos.1 and 2 to her matrimonial home. 10. Laxman (PW 2) has further stated that on the day of Ekadashi, he had gone to Paithan and while he was proceeding to bus stand, Vishnu Rakhmaji met him and told that his daughter was ill and requested to go to the hospital at Paithan. Accordingly, Laxman (PW 2) went to the hospital and saw that his daughter was already expired and body was handed over to him for cremation. Thereafter, he lodged complaint at Exhibit 13 after cremation took place. 11. During the cross examination, Laxman (PW 2) has admitted that all Bhonde belonged to Shivsena Party, whereas accused belonged to Congress Party. He has further stated that wife of Subhash Kale belonged to Shivsena Party and she was Sarpanch of said village at the relevant time. He has also admitted that there was regular dispute between both the political (11) parties. Laxman (PW 2) has further stated in the cross examination that he had 25 Acres of Bagayat land and he had taken loan from Society to lay pipeline in his field and, therefore, there was attachment of his land to the Society. He has also stated that he had taken money from Babasaheb Shinde from the same village and gave 3 Acres of land therefor. He has also stated that he had taken amount from a person, namely Mohan, from Jalgaon (Taluka : Shegaon), to whom he had given 5 Acres land. He has also admitted that maternal uncle of Surekha had spent the amount for the marriage and they had purchased 10 Gms. gold ring, but could not state the denomination in which he had paid dowry of Rs. 38,000/-. 12. Laxman (PW 2) has also stated in the cross examination that he sold his house about a month back and sells vegetable. He has also admitted that death of his daughter Surekha took place one day prior to Dasara festival. He has further admitted that accused no.2 got about 25 acres of Bagayat land. He has further admitted that he has not lodged any complaint agaist the accused nor he had informed Police or Sarpanch, that accused had assaulted his daughter with hunter. He has further stated that he and Bappaji had gone and questioned accused no.3 as to why his daughter was assailed with hunter. But at that time, accused questioned them as to why they (12) had entered into their land. He has also stated in the cross examination that the accused and he used to reside in the same village. He has further stated that deceased Surekha came back to his home and complained of assault and demand of accused no.1. She stayed at his house on that day but next morning he went to Grampanchayat office and took two persons, namely Nandu Kale (PW5) and Rakhmaji Dhongade and they called accused no.1 Vithal in Grampanchayat office. Few suggestions were given to Laxman (PW 2) putting the case of the accused to him, but the same were denied by him. 13. Coming to the testimony of Raju Dhonde (PW 3), brother of victim Surekha, who has deposed that Surekha was his sister and she was married with accused no.1 who belonged to the same village and during the marriage, they had given dowry of Rs. 38,000/- and 10 Gms. golden finger ring. He has also stated that she was treated well for about six months after the marriage and thereafter accused started illtreating her and was making demand of Rs. 10,000/- for purchase of land and his sister disclosed about the same when she had come at the time of festival. However, he has stated that they did not pay the said amount. Moreover, his father had gone to the house of accused to bring his sister for Nagpanchami festival but the accused did not send her along with him, but after some time, his sister (13) Surekha along came. At that time, his sister Surekha disclosed that accused had told her that she should not return until demand of Rs. 25,000/- is met. He has further stated that as his uncle Rameshwar had expired, his sister stayed at his house for about 2 - 4 days. Thereafter she left for house of the accused. However, she immediately returned back to parental house and disclosed that accused had assaulted her with hunter. Hence, he himself, his father Laxman (PW 2), his uncle and his brother immediately went to Grampanchayat office. Nandu Kale (PW 5) and Rakhmaji Dhongade met them in Grampanchayat office. Moreover, accused nos.1 and 2 were also called at the said office and a meeting was held at the Grampanchayat office in presence of villagers. He has further stated that accused nos.1 and 2 were assured that they would pay amount of Rs. 25,000/- after sale of sugarcane. Thereafter accused nos.1 and 2 took victim Surekha to her matrimonial home. He has also stated that after lapse of about 2 months from the said incident, his sister expired. However, he did not go to the house of accused to see her. He has also stated that on the next day, he saw his sister when her dead body was brought. 14. During the cross examination, he has admitted that he cannot state, exactly up to what date his sister was treated well. His brother Bappasaheb used to meet her whenever he went to (14) the village. He has also stated that his sister used to visit regularly at his house for festivals and holidays. However, she never used to come casually to meet them. He has also stated that he is educated up to 12th standard and he used to visit regularly to the house of the accused. However, he has further stated that for about two months from the date of alleged assault, he did not go to his sister. Few suggestions were given to him in the cross examination that there was no illtreatment to his sister and that he was deposing falsely at the instance of his father, but the same were denied by him. 15. That takes me to the testimony of Nandu Kale (PW 5), who has deposed that he knows Laxman Dhonde who is resident of village Wadwali, and his daughter was married with accused no.1 Vithal at the same village. He has also stated that after 8 days of Panchami, Laxman (PW 2) came to his house and told him that some quarrel was going on in the house of inlaws of his daughter over demand of money and he was called therefor. He has also stated that accused nos. 1 and 2 met them near Grampanchayat office. He has further stated that Laxman (PW 2) assured accused nos.1 and 2 that he would pay amount after sale of sugarcane crop, as well as, he told both the accused to settle the dispute as Laxman (PW 2) had agreed to pay the amount subsequently. Thereafter, victim Surekha went along (15) with accused nos.1 and 2 to her matrimonial home. However, he has stated that he learnt thereafter that daughter of Laxman had expired. 16. In the cross examination, he has admitted that one Mr. Hirale had lodged complaint against him for burning his hut, as well as, one Santram Jadhav had also lodged complaint against him and others in the court of J.M.F.C., Paithan, which was ended in compromise. He has also admitted that there was complaint against Arun Rustum Kale for having assaulted Education Officer of Zilla Parishad and he belonged to his relations. Hence, suggestion was given to him that he and Arun Kale belonged to Shivsena Party, but the same was denied by him. He has further stated that many people assembled near Grampanchayat office when he had talk with the accused, but people had not questioned Laxman (PW 2) about it in his presence, although they were standing near Grampanchayat office for about 15 minutes. He has further stated that he did not call Police Patil or Sarpanch of the village for settling the dispute. He has also stated that he did not make inquiry with Laxman (PW 2) after the death of Surekha. Hence, suggestion was given to him that the complainant did not call him and there was no settlement at his instance, but the same was denied by him. It was also suggested to him that complainant never assured in his (16) presence to the accused that he would pay the amount of Rs. 25,000/- after sale of sugarcane crop, but the same was denied by him. 17. That takes me to the deposition of Dr. Ramesh Khobare (PW 1), who has stated that he was working as Medical Officer at Paithan since 1997 and on 13-10-1997, he himself and Dr. Killarikar performed post mortem examination on the dead body of Surekha Vithal Gade, between 8.15 a.m. to 9.05 a.m. Body was brought by K.K. Bankar of Paithan Police Station. He has also stated that it was dead body of female aged about 25 years, and clothes were stained with reddish froth and also with fical matter and there was fine bloody froth oozing from mouth and nostril. However, there was no evidence of external injury. He has also stated that on internal examination, brain, larynx, lungs and internal organs were congested. On opening, the stomach mucosa was highly congested and it contained about 200 Ml. of liquid material with black granules smelling kerosene. He has also stated that probable cause of death was due to poisoning. Accordingly, he has stated that he issued post mortem report which is produced at Exhibit 10, disclosing probable cause of death ascertained was poisoning. 18. Dr. Ramesh Khobare (PW 1) has further stated that he (17) preserved routine viscera and the same was sent through Police personnel to Chemical Analyser. He has stated that on perusal of C.A. report, it does not show that poison was detected in viscera. He has further stated that though C.A. report does not detect poison, he could ascertain that death was due to poisoning because (1) there was fine oozing froth from nose and mouth, (2) internal all organs were congested, (3) stomach containing black granules which suggested that it was unknown poison with kerosene as solvent. He has further stated that in addition to that, he did not detect any other reason which would draw a different conclusion than that of poisoning. As regards the negative C.A. report, he has stated that probability cannot be ruled out that because of less quantity of poison, C.A. report must not have been detected. 19. During cross examination, he has admitted that he did not preserve her fine froth for sending it for analysis. He has further stated that routinely they do not preserve the froth. He has further stated that in case of head injury and convulsion, there would be froth and blood even from nose and mouth. He has also stated that there is no such poison which cannot be detected by analysis. A suggestion was given to him, that by consumption of kerosene, there cannot be death, but the same was denied by him. It was also suggested to him, that he gave false opinion (18) regarding cause of death, but the same was denied by him. However, he has stated that he did not find that the body was smelling of kerosene. A suggestion was also given to him, that findings on column No.20, so far stomach and its contents are concerned, are false, but the same was denied by him. 20. On the background of the aforesaid evidence, Mr. S.G. Chapalgaonkar, learned Counsel for the appellant canvassed that prosecution has not examined any independent witness in respect of unlawful demand of money and harassment due to non- fulfillment thereof. As regards testimony of Nandu Kale (PW 5) who is allegedly independent witness, does not state about the alleged unlawful demand of money from victim Surekha by the accused persons and harassment to her due to non-fulfillment thereof. Moreover, said witness Nandu Kale (PW 5) does not state regarding assault on victim by hunter. It is also canvassed that there is no close proximity regarding matrimonial cruelty and the death of victim in suspicious manner by way of suicide and in fact, there is two months gap therein, and it is submitted that the prosecution has failed to establish the nexus between suicide by victim Surekha and the matrimonial cruelty at the hands of the accused to her. Accordingly, it is submitted that there is no matrimonial cruelty proved before the death, leading suspicious death of victim Surekha and hence it is urged that (19) prosecution has failed to prove the offence under Section 306 against accused no.1 beyond reasonable doubt in respect of abetment to suicide by victim Surekha. Besides as regards the alleged offence under