1 Cri.Appeal No.193/1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.193/1998. 1) Datta s/o Tukaram Karade Age: 23 Yrs., occu. Labour. r/o Jirona, Tq. Bhokar, District Nanded. 2) Tukaram s/o Bhimrao Karde Age: 60 Yrs., occu. Labourer, R/o Jirona, Tq. Bhokar, District Nanded. 3) Sow.Laxmibai Tukaram Karde Age: 50 Yrs., occu. Labourer, and Household, r/o Jirona Tq. Bhoka, Dist. Nanded. - APPELLANTS VERSUS The State of Maharashtra. - RESPONDENT ***** Mr.UB Bondar, Advocate for Appellants; Mr.NB Patil APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 2nd May, 2011. JUDGMENT: 1) Heard the learned Counsel for the Parties. 2) Conviction recorded in Sessions Case No. 2 Cri.Appeal No.193/1998 65/1996 by the learned 2nd Additional Sessions Judge, Nanded dated 10th July, 1998, for an offence under Section 498-A read with 34 of Indian Penal Code and Section 304-B r/w 34 of IPC, is impugned in the appeal, admitted on 17th July, 1998. 3) The appellant no.1-Datta married to Kisnabai daughter of the complainant, two years prior to later's death. It was alleged, marriage was settled on dowry of Rs.5,000/-, out of which, Rs.3,000/- was paid. There were no grievance for initial period of one year from Kisnabai. However, the appellants started demanding unpaid dowry and resultantly, started harassing Kisnabai. Before a month of the incident dated 29.11.1995, the appellants demanded balance amount of Rs.2,000/- to the complainant. The complainant assured to pay the same within two months, but he could not comply. He learnt of death of his daughter Kisnabai, suspecting foul play, he reported police, F.I.R. was registered against the appellants/accused. Inquest and post mortem was carried on the dead body, spot was visited. After completion of investigation, charge sheet came to be filed against the appellants. 4) Panchanama (Exhibit-20) speaks of the 3 Cri.Appeal No.193/1998 spot drawn on 30.11.1995. The room admeasures 6 ft. X 10 ft. having at eastern side household material with four tin sheets as the roof. In the room, nothing incriminating as to insecticides or poisonous substance was found. In the adjoining hut, admeasuring 6 X 10 ft., the re was a hearth. Nothing incriminating was taken charge by the Investigator. 5) PW 3 – Datta Boiwad, is father of Kisnabai; PW 4 – Ganpat Boiwad is son of Datta and brother of Kisnabai; PW 5 – Hanmant speaks of settling the marriage and paying Rs.3,000/- as dowry and the complainant told him, the accused started harassing his daughter for unpaid dowry. Resultantly, he accompanied to the house of the accused/appellants with Shankar Pawar and the complainant. PW 7 – Kisan Boiwad repeated assertion of PW Nos. 3 and 4. PW 6 – Jaipal was Medical Officer, carried post mortem. According to him, the contents of stomach were smelling of kerosene and the probable cause of death was cardio-respiratory failure due to organ compound poisoning. Viscera was preserved, however, no CA report of viscera was ever received nor filed in the Court. The death, according to the medical officer, might have occurred within two hours of taking of the meals. The contents of stomach and its pieces, kidney, lungs, brain, plees, heart 4 Cri.Appeal No.193/1998 were sent for chemical analysis to the office of CA. In another bottle, blood sample from heart chamber was also sent. PW 8 Sanjay Laxmanrao Pawar was Investigator attached to Umri police station. 6) Based on the above evidence, the learned Judge concluded to convict the accused for the above referred offences. 7) The marriage of appellant no.1 – Datta with Kisnabai was a Gandharva form marriage, known in the region (after customary severance of first marriage, without following rituals, the marriage is solemnized in a temple). Kisnabai could do well in her earlier marital life for two years. 8) For an offence under Section 304-B to be established the basic ingredients are, - i) death of a woman/wife should have occurred otherwise than under a normal circumstances within seven years of her marriage; ii) soon before her death, she should have subjected to cruelty or harassment by the accused in connection with any time for dowry, to presume that the accused has committed dowry death. Presumption under Section 113-B of the Evidence Act will operate if the prosecution is able to establish the 5 Cri.Appeal No.193/1998 circumstances set out in Section 304-B of IPC. 9) Death of Kisnabai, based on above evidence, is a fact. But, whether it was a suicide or death by accident is a misery. The viscera and other organs/parts of the body were transmitted to the office of CA on 7.12.1995, however, nobody bothered to collect the same though post mortem notes were received by PW 8 on 11.12.1995. The spot panchanama (Exhibit-20) does not indicate presence of any incriminating poisonous substance or even kerosene. The death of Kisnabai at this stage could also be attributed due to natural calamity of respiratory attack. The deceased had no visible or latent injuries of any assault, or forceful or self- consumption of poisonous substance. When the incident has taken place in a hut, the accused/appellant, the husband, was away in the agricultural field as a labour. On a message from a boy, he rushed to his hut. The prosecution does not dispute this position. 10) The worth of evidence of PW 3 – Datta, the father; PW 4 -, the brother Ganpat; PW 5 – Hanmant PW 7, nephew, if taken together, do not inform that soon before death of Kisnabai, there was any ill treatment or inhuman behaviour of the accused to make life of Kisnabai miserable to 6 Cri.Appeal No.193/1998 ensure that she succumbs to the pressure and terminate her precious life. The evidence of PW 5 – Hanmant indicates that he accompanied complainant and called Sarpanch of the village Jirona and a meeting was held in which the appellant – Datta was sermoned to behave properly. After fifteen days, according to him, Kisnabai died. PW 4 – Ganpat says in paragraph 2, " Kisnabai married with accused no.1 in Gandharva form of marriage, settling at village of the accused – Datta. After the marriage, Kisnabai used to visit her parental house for festivals. Kisnabai never told anybody about any ill treatment and demand by the accused prior to festival of Deewali. Accused no.1, after Deewali, had been to his house for taking Kisnabai and at such time, he was informed to behave properly. He could not point out that any time Kisnabai was driven out of the house by the accused/appellants. He could not give details of dates of settlement of such meeting. 11) The learned Sessions Judge felt that the report (Exhibit-23) lodged immediately on 30.11.1995 is in tune with the evidence of demand of left over amount of Rs.2,000/- and the ill treatment started for unpaid dowry amount. Reliance on such evidence, coupled with evidence of son and Hanmant would normally not catch 7 Cri.Appeal No.193/1998 coller of the accused/appellants to answer the charge. The presumptive burden in terms of Section 113-B has its limitation as initial ingredients of infraction of Section 304-B IPC, needs explanation. 12) It was suggested that in Gandharva form of marriage, dowry is not paid nor settled nor there was such eventuality having taken place in the given case. The assessment of evidence of pW 7 does not inform that he has personal knowledge of the accused/appellants, ill treating the deceased or harassing her for non-compliance of the demand. Kisnabai never informed PW 7 of any ill treatment from any of the appellants. Reliance by the learned Sessions Judge that the death has caused in a mysterious circumstance and immediately after fifteen days of the meeting, she has expired, gives elbow room, nidle of suspicion against the accused itself is a surmise. There was no material to substantiate of any demand, even if evidence was related to dowry, it was not so persistently and humiliatingly demanded and ellusion thereof to result in suicide. The harassment and cruelty is insupportable and indefensible. There was no material to substantiate the conclusion. It was the surmises and conjectures, conviction was recorded and hence same calls for interference. 8 Cri.Appeal No.193/1998 The appeal is allowed. The judgment and conviction is set aside. Fine amount, if deposited by the accused/appellants, be paid to them after sixty days. sd/- (K.U.CHANDIWAL) JUDGE bdv/ fldr.29.4.11 Authenticated copy (BD VADNERE,PS)