1 cri appeal 482.99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 482 OF 1999 1. Radhakisan S/o Kachru Khandagale, Age : 30 Years, Occu. : Agril., R/o Yesgaon, Tq. Khultabad, District Aurangabad. 2. Kachru S/o Raghunath Khandagale, Age : 65 Years, Occu. : Agril., R/o Yesgaon, Tq. Khultabad, District Aurangabad. .. APPELLANTS (The appellant No. 2 died during the pendency of appeal, therefore, appeal abeted against appellant No. 2) Versus The State of Maharashtra, through Khultabad Police Station, Dist. Aurangabad. .. RESPONDENT Mrs. P. V. Langhe, Advocate for the Appellant. Mrs. Y. M. Kshirsagar, A.P.P. for the Respondent/State. CORAM : S. S. SHINDE, J. DATE : 10TH FEBRUARY, 2011. 2 cri appeal 482.99 ORAL JUDGMENT : . This appeal is filed challenging the judgment and order dated 22nd December, 1999 passed by the IVth Additional Sessions Judge, Aurangabad in Sessions Case No. 351 of 1996. There are two appellants in this appeal. However, counsel appearing for appellants informs this Court that, the appellant No. 2 is no more and he died four years back during the pendency of this appeal. She has made this statement on the basis of instructions given by the appellant No. 1, who is present in the Court hall. This position is not disputed by the learned Additional Public Prosecutor appearing for the State. Therefore, so far as, the appellant No. 2 is concerned, the appeal stands abated. 2. The prosecution case is that : The daughter of the complainant Uttam Ganpat Chavan was married with accused No. 1 on 13th February, 1996. After the marriage she went to the house of accused for cohabitation. The original accused No. 2 and 3 are the parents and the accused No. 4 is the brother of the accused No. 1. All the accused resided jointly in one and same house. 3 cri appeal 482.99 3. It is the case of the prosecution that, initially for a period of one month after marriage the deceased Meerabai was treated properly by the accused. However, subsequently all the accused persons started harassing her on the ground that she should bring money from her parents. The accused also threatened to do away with her life if she would not bring money. It is further case of the prosecution that, whenever Meera used to visit her parents home, she use to narrate about the harassment and ill- treatment meted out to her at the house of accused. The complainant had visited the house of accused persons with three/four respectable persons from his village and advised accused to give good treatment to Meerabai, however, accused did not listen. 4. On 01st September, 1996 accused No. 2 Kachru had come to village Kingaon at the house of complainant and he demanded Rs. 1,000/- from the complainant. The complainant showed inability to pay the amount. The accused Kachru then took away iron chain and neck rope (Jote) from the house of complainant. On the very next day i. e. on 03rd September, 1996 message was received by the complainant to the effect that his daughter Meerabai has consumed poison and she was admitted in Ghati 4 cri appeal 482.99 Hospital. Then they went to the Ghati Hospital and found that Meerabai was lying in unconscious condition. Subsequently on 05th September, 1996 Meerabai expired in hospital. On the above allegations report was lodged to Khultabai police station vide Exhibit 11 dated 06.09.1996. The police machinery was set in motion. The offence came to be registered vide Cr. No. I-170/1996 for the offence punishable U/Sec. 498-A, 304-B r/w Sec. 34 of the Indian Penal Code. The investigation was carried out. The postmortem examination was followed. The spot panchanama was drawn in the field of accused and one container of poisonous substance came to be seized from the spot. Statements of witnesses were recorded. The accused persons came to be arrested. Viscera and seized poisonous substance was sent to Chemical Analyser. On completion of investigation charge sheet came to be filed against the accused persons in the Court of Judicial Magistrate First Class, Aurangabad. The learned Magistrate on 20.11.1996 committed the case to the Court of Sessions as the alleged offence U/Sec. 304-B of the Indian Penal Code is exclusively triable by the Sessions Court. 5. After framing the necessary charge, and after the due Trial, the Sessions Court after framing the points for its 5 cri appeal 482.99 determination and after appreciation of evidence brought on record and after hearing the parties convicted the appellants herein i. e. accused No. 1/Radhakisan Kachru Khandagale and original accused No. 2/Kachru Raghunath Khandagale for the offence punishable U/Sec. 498-A of the Indian Penal Code and both of them were sentenced to suffer R. I. for a period of two years each and to pay fine of Rs. 500/-. In default further R. I. for three months. Both the accused/appellants further convicted for the offence punishable U/Sec. 306 of the I. P. Code and both of them were sentenced to suffer R. I. for a period of five years each and to pay fine of Rs. 500/- each. In default further R. I. for three months. The Trial Court also directed both the sentences to run concurrently. However, both the accused were acquitted from the offences punishable U/Sec. 304-B of the Indian Penal Code. 6. Being aggrieved by the judgment and order dated 22.12.1999 passed by the IVth Additional Sessions Judge, Aurangabad in Sessions Case No. 351 of 1996 this appeal is preferred by two accused namely Radhakisan Kachru Khandagale and Kacharu Raghunath Khandagale. However, as stated earlier the appellant No. 2/Kachru Khandagale died during the pendency of this appeal. Therefore, this appeal 6 cri appeal 482.99 stands abeted, so far appellant No. 2 is concerned. 7. The learned counsel appearing for the appellant invited my attention to the evidence of the prosecution witnesses and also medical evidence and other evidence brought on record by the prosecution and submitted that, the allegations in the statement of the prosecution witnesses about the harassment and cruelty to deceased are vague, general in nature and no specific allegations are leveled against each of the accused and statements of the prosecution witnesses suffer from contradictions, omissions and improvements and those are not trustworthy. The learned counsel further submitted that, there is no direct or circumstantial evidence available against the appellant to sustain the conviction U/Sec. 498-A or 306 of the Indian Penal Code. There is no specific incident of ill-treatment or cruelty pointed out by any prosecution witness in their deposition before the Court. The prosecution has not examined any independent witness or neighbour of the adjoining field and, therefore, the prosecution case suffers from independent evidence. The prosecution witnesses 1 to 4 are close relatives of deceased. They are interested witnesses. No complaint was filed prior to funeral ceremony. The complaint is filed after one day. Said complaint 7 cri appeal 482.99 was filed after thought as it appeared from the evidence of prosecution witnesses. The counsel further submitted that, the relations of the deceased, in laws and parents of deceased were cordial prior to filing of complaint. The possibility of deceased poisoned due to insecticide used for the cotton crops cannot be ruled out. The tin of poison were closed from inner side. There was no any abetement, instigation brought on record by the prosecution to prove its case beyond the reasonable doubt that, soon before the death of the deceased, appellant No. 1 has instigated her to commit suicide. There is no any suicidal note or dying declaration which supports the prosecution case. The C. A. report is negative. No essential ingredients of abetment as stated in Section 107 of I. P. Code has been proved by the prosecution. There is no evidence to establish ingredients of Sec. 498-A and 306 r/w Sec. 34 of the Indian Penal Code. There was no intention, no motive, no meeting of mind. There was no pre- plan. Therefore, the whole approach of the Trial Court to convict the appellant with the aid of Section 34 was wholly misplaced in the facts of the case. The prosecution failed to prove its case beyond reasonable doubt. The learned counsel further submitted that the appellants 8 cri appeal 482.99 were instrumental in taking the deceased to hospital. The conduct of the appellants does show that they were not involved in the commission of any offence as alleged by the prosecution. 8. The learned counsel invited my attention to the contents of complaint and submitted that, on perusal of the contents of the complaint and deposition of P.W. 1 Uttam, it does appear that there is omission in the statement of the P.W. 1 Uttam. Though he has stated in the complaint that, the accused persons will not care for life of the deceased if amount is not brought from the parents. However, said portion is missing in the deposition of P.W. 1 before the Court. The learned counsel further submitted that, it has come in the evidence of complainant that, husband of the Meerabai i. e appellant herein came to the house of complainant and happily taken Meerabai along with him to matrimonial house. There was no demand of money. This indicates that there was no any incongenial atmosphere in the family or there was no demand such as stated by the prosecution. The learned counsel further submitted that, in original complaint allegation of demand of Rs. 1,000/- is stated by the complainant. However, there is no specific mention of the amount quo accused/appellant No. 1. The counsel further 9 cri appeal 482.99 submitted that, in complaint it is stated that amount of Rs. 1,000/- was demanded. However, in the deposition before the Court, the complainant has stated that, Rs. 2,000/- was demanded by accused Kachru. It is further submitted that, in deposition P.W. 1 Uttam stated that dead body of Meerabai was taken to Yesgaon village of accused. Funeral is performed at Yesgaon by accused persons. It is admitted by P.W. 2 Narsing in his examination in chief that, funeral is performed by the accused. Therefore, the counsel for the appellant would submit that, the conduct of the accused to perform the funeral also indicates that they were not involved in any kind of activities or offence as alleged by the prosecution. It is further submitted that, the prosecution witnesses have stated in their deposition that the marriage was peacefully settled. There was no dispute in the marriage whatsoever. What was agreed was duly complied. Therefore, counsel would submit that, there was no reason for the appellant/accused to demand any money after the marriage from the parents of the deceased Meerabai. It is further submitted that, P.W. 1 in his statement before the Court has stated that in the additional month when they brought the husband i. e. appellant and in-laws of Meerabai to their house at Kingaon, at that time their relations were good. However, P.W. 2 10 cri appeal 482.99 in her examination in chief stated that at the time of Adhik month her daughter informed that, accused use to harass and beat her. The counsel would submit that, there are major contradictions between the version of P.W. 1 and P.W. 2. Therefore, the prosecution case is not trustworthy. The learned counsel further invited my attention to the cross examination of the P.W. 2 and contended that, the P.W. 2 has stated that the relations with the accused were good and entire programme in additional month is happily performed. The learned counsel further submitted that, at the time of lodging the complaint not only the complainant went to the police station, but other persons namely Yeshwanta, Shivaji Chavan, Bhausaheb and complainant and also Kashinath went to the police station. The complaint was lodged after one day after thought as it appears from the version of the complainant. It is further submitted that, it was possible for the complainant to lodge the complaint immediately when he came to know that Meerabai consumed poison and hospitalized. However, no complaint was lodged. After the death of Meerabai, police did not go to the Ghati Hospital, no inquest panchanama was prepared. The learned counsel further submitted that, from the cross 11 cri appeal 482.99 examination of the P.W. 2 it clearly appears that, P.W. 2 visited Yesgaon for removing black magic on her daughter i. e. deceased Meerabai. Therefore, relying on this portion from the cross examination, the counsel for the appellant would submit that, the defence taken by the appellant that, Meerabai was suffering from some mental problems is a probable defence and same is required to be accepted. It is further submitted that, at any point of time no complaint was lodged by the complainant either with the Sarpanch or police Patil or with the police station about ill- treatment or harassment meted by the appellant/accused prior to the date of incident. The learned counsel further submitted that, the evidence of P.W. 3 Shankar, uncle of the deceased that while going away from Kingaon, accused No. 2/Kachru Patil had taken iron chain, neck rope and a tin of poison with him. This witness has stated that, the tin of poison was carried by Kachru Patil. It is further submitted that, so far statement of P.W. 3 that the Kachru Patil also carried tin of poison is not corroborated by the evidence of any other witness. The learned counsel invited my attention to the deposition of P.W. 4 and contended that, when he saw Kachru/accused No. 2 in the house of Uttam before the day of incident, at that time their relations were cordial. It is further submitted that, it is appearing in the evidence of P.W. 5 that at 12 cri appeal 482.99 the time of postmortem examination none of the persons from the matrimonial house were present. P.W. 6 has admitted in his evidence that, he did not record statement of any neighbourer or independent witness. The counsel further submitted that, in spot field, there were standing crop of cotton. The seized container was closed by inner cover. The learned counsel further invited my attention to the medical evidence. P.W. 7 has stated that, there are no external injuries to the dead body. The C. A. report is negative. The complication must have developed after elimination of the poison. Therefore, the counsel would submit that, if C. A. report shows that no poison is detected, entire prosecution case has to fail. 9. The counsel relying on various judgments of this Court and the Hon'ble Supreme Court vehemently argued that in order to prove offence U/Sec. 306 of I. P. Code, there should be clinching evidence. Ingredients of abetment as stated in Sec. 107 are required to be met. The learned counsel placed reliance on the reported judgment of the Supreme Court in case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) reported in 2010 All M. R. (Cri) 1331 and submitted that, to convict the accused for offence punishable U/Sec. 306, the prosecution should 13 cri appeal 482.99 show that there is direct involvement of the accused by way of instigation or aid which led the victim to commit suicide. The learned counsel invited my attention to para 12 of the said judgment and submitted that, unless there is direct involvement demonstrated by the prosecution, no conviction can be given U/Sec. 498-A or U/Sec. 306 of the Indian Penal Code. The learned counsel for the appellant also relied on the judgment of the Hon'ble Supreme Court in case of Amalendu Pal @ Jhantu vs. State of West Bengal reported in 2010 AIR (SC) 512, and submitted that, the Hon'ble Supreme Court has held that, harassment must be coupled with some positive action proximate to time of occurrence. In absence of proof of such proximate positive action, on the part of the accused, accused cannot be convicted U/Sec. 306 of the Indian Penal Code. The counsel submitted that, in the instant case the prosecution has utterly failed to establish its case by bringing on record the positive evidence that the appellant herein had any positive act abating commission of suicide proximate to the time of occurrence. The counsel further invited my attention to the reported judgment of this Court in case of State of Maharashtra Vs. Harish Ramanna Shetty & others reported in 2008 All MR (Cri) 2711. Relying on the said judgment, the counsel would submit 14 cri appeal 482.99 that on vague allegations without mentioning any specific incident or incidents no conviction can be given either U/Sec. 498- A or U/Sec. 306 of the Indian Penal Code. The learned counsel has further placed reliance on various judgments of this Court in case of Vithal Sopanrao Kalbande Vs. State of Maharashtra reported in 2009(1) Bom.C.R.(Cri.) 13, Deepak S/o Bhimrao Bharne and others Vs. State of Maharashtra reported in 2004(2) Mh. L. J. 987, Ganesh Y. Bhutekar Vs. State of Maharashtra reported in 2005 Cri. L. J. 1221, Madhav Tukaram Kadam and another V. State of Maharashtra reported in 2010 Cri. L. J. 1464. Relying on all these judgments, the counsel for the appellant would submit that, when there is no convincing evidence available in the matter about ill-treatment or harassment in that case the Trial Court should not have convicted the appellants for the offences punishable U/Sec. 306, 498-A r/w Sec. 34 of the Indian Penal Code. The learned counsel at the cost of repetition submitted that, there was no intention or motive attributed to the appellant, except mere allegations in the evidence of prosecution witnesses that there was demand of Rs. 1,000/- by the accused No. 2. 10. The learned counsel further submitted that, the appellant 15 cri appeal 482.99 is acquitted for the offence punishable U/Sec. 304-B of the Indian Penal Code. The learned counsel submitted that, presumption U/Sec. 113-A of the Indian Evidence Act would arise when prosecution is able to show that (i) a woman has committed suicide (ii) the suicide has been committed within a period of seven years from the date of marriage (iii) the husband or his relatives have subjected her to cruelty, on availability of these circumstances, the Court may come to the conclusion that, the suicide has been abeted by her husband or by such relative of her husband. The learned counsel in support of her aforesaid contention placed reliance on the larger bench judgment of the Hon'ble Supreme Court in case of Ramesh Kumar vs. State of Chhattisgarh reported in AIR 2001 SC 3837. The learned counsel also invited my attention to the statement of the appellant recorded U/Sec. 313 of the Cr. P. C. and submitted that the defence taken by the appellant is that, the deceased Meerabai was mentally retarded. Two witnesses were examined on behalf of defence i. e. D.W. 1 and D.W. 2. They have stated in their evidence that Meerabai was mentally retarded. The learned counsel further submitted that, the cross examination of P.W. 2/mother of the deceased Meerabai would 16 cri appeal 482.99 show that Meerabai was mentally disturbed or retarded. Therefore, the learned counsel for the appellant would submit that, the prosecution has utterly failed to bring on record cogent evidence so as to meet the ingredients of Sec. 34, 107, 306 and 498-A of the Indian Penal Code. The learned counsel therefore, would submit that, this appeal deserves to be allowed. 11. On the other hand, the learned Additional Public Prosecutor invited my attention to the evidence of prosecution witnesses and in particular evidence of P.W. 1 to P.W. 4 and contended that, the prosecution witnesses in their evidence have specifically stated about the ill-treatment and harassment which resulted in commission of suicide by the deceased Meerabai. The learned A.P.P. submitted that, there was specific demand. The witnesses have stated that, the amount of Rs. 2,000/- was demanded by accused No. 2. There are also allegations of harassment and beating by the accused persons to the deceased Meerabai. The medical evidence fully supports the prosecution case, as much as, the medical officer has stated that, the deceased Meerabai died due to poisoning. The learned A.P.P. further submitted that, the presumption U/Sec. 113-A of the Indian Evidence Act would arise in the present case, since the 17 cri appeal 482.99 deceased Meerabai died within seven months from the date of marriage. It is further submitted that, there was no reason for deceased Meerabai to commit suicide, when she was carrying pregnancy of 10 to 12 weeks. No woman ordinarily go for commission of suicide during such days. The learned A.P.P. therefore submitted that, if the evidence of the prosecution witnesses and also medical evidence and other evidence brought on record is read in its entirety, it would lead to only conclusion that the appellant was instrumental, instigated and intended commission of suicide by the deceased Meerabai. The learned A.P.P. further submitted that, there was ill-treatment and harassment to the Meerabai. Therefore, the Trial Court has also convicted the appellant for the offence punishable U/Sec. 498-A of the Indian Penal Code. Therefore, the learned A.P.P. would submit that, appeal is devoid of any merits and same deserves to be dismissed by confirming judgment and order of the Trial Court. 12. I have given due consideration to the rival submissions. I have also perused entire material placed on record by the parties and also the original record and proceedings made available. It is not necessary to refer in detail the evidence of the prosecution 18 cri appeal 482.99 witnesses on the point of cruelty and harassment. P.W. 1 Uttam Ganpat Chavan/complainant in his evidence has stated that, after two month of marriage his daughter came to his house. At that time she informed him about harassment by the accused. At that time she was alone. She informed that her husband has drove her out of the house for demand of money and so she has come to the house of complainant. This witness further in his examination in chief has stated that, in the next day morning, he took cup of tea with the accused Kachru, at that time accused Kachru demanded Rs. 2,000/- to the complainant. The complainant told him that he had no money and his financial position is week. At that time Kachru took away the iron chain and neck rope (JOTE) along with him. 13. In his cross examination he has stated that, there was no dispute at the time of marriage and the marriage was happily performed. It was only decided to perform the marriage and nothing else was agreed. He has further stated in his examination in chief that, after two months Meerabai visited his house at that time she informed him about the harassment by the accused. He further stated that, accused used to harass her, however, he could not remember the date when Meerabai visited 19 cri appeal 482.99 his house on second occasion. He has admitted in his cross examination that, he had no occasion to talk other neighbourers at Kingaon or police patil or any other person to tell about the harassment to his daughter from the accused. He has further admitted in his cross examination that, when Kachru demanded Rs. 2,000/- he could remember the date or month. Therefore, to the above extent the evidence of P.W. 1/complainant is relevant in the present case.(emphasis supplied) 14. So far P.W. 2 is concerned in her examination in chief, she stated that, the accused persons gave good treatment to Meerabai for about two months from the date of Marriage. Thereafter, all accused started harassing Meerabai. All the accused used to harass her. When the Meerabai visited the parental house at that time she stated about the ill-treatment by the appellant. It has come in the evidence of P.W. 2 that Meerabai told her that, all the accused asked her to bring money from the parents and they drove her out of the house. She has further stated that, father-in-law of Meerabai came to