1 crapeal882-90.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.882 OF 1990 The State of Maharashtra ..Appellant Vs. 1. Mahadev Popat Garje, 2. Bhaskar Bajirao Garje, 3. Smt.Ramkavar Bhaskar Garje, 4. Popat Bajirao Garje ..Respondents ......... Mr.H.J.Dedhia, APP for appellant-State. None for the respondents. ......... CORAM : D.B.BHOSALE & R.G.KETKAR, JJ. DATE : 26th AUGUST, 2010. P.C. : This appeal is preferred by the State of Maharashtra challenging the judgment and order dated 31 st August, 1990 passed by the learned Addl. Sessions Judge, Greater Bombay in Sessions Case No.251 of 1989. By that judgment, the learned Sessions Judge acquitted all the accused of the charges leveled against them. 2] The respondents are the original accused and were charged with offence punishable under Sections 304B read with 34 Indian Penal Code, 2 crapeal882-90.sxw 1860 (for short “IPC”), Section 306 read with 34 IPC and Section 498-A read with Section 34 IPC. The case of the prosecution is that accused no. 1 Mahadeo married Kausalya, daughter of PW 1 Trimbak Vilas Vanve, on 21 st May, 1986 at village Karkhed, District Beed. An amount of Rs.5,000/- was given as dowry and a wrist watch was also given to him. It was an arranged marriage. As agreed, all the expenses of the marriage were also borne by the girl’s side. After the marriage, Kausalya resided with her inlaws at village Surdi. After about 8 months of marriage, Ramkisan, the cousin of accused no.4 Popat and Ramappa, brother in law of accused no.4 went to Karkhed village and met PW 1 Trimbak, father of deceased Kausalya. They inquired with PW 1 Trimbak as to whether Kausalya was with him. They had also informed him that accused no.4 Popat, father-in- law of Kausalya, had beaten her. Subsequently, Ramkisan, Ramappa and PW 1 Trimbak went out in search of Kausalya and came at Kerul village where PW 10 Shankar, brother of Trimbak resides. On reaching Kerul, PW 1 Trimbak found his daughter and noticed that her eye was swollen and she had some marks of injury on her forehead. Kausalya informed PW 1 Trimbak that one night while she was sleeping in a one room and her parents-in-law were sleeping in another room, at about 10 pm. or 11 pm., her father-in-law had come outside her room and told her to light a fire as he was feeling cold. She thereupon told him to tell his wife to light the fire. Thereupon he told her that she had become arrogant and she would have to be beaten. Then she went to light the fire, but, accused no.4 told her not to light the fire and to put the lantern off. On her asking him why he wanted the lantern to be put off, he told her that he wanted to have sexual intercourse with her. Thereupon she asked him as to why he had got his 3 crapeal882-90.sxw son married to her and why he had not married her. Accused no.4 Popat did not reply and beat her with Chappals and sticks and she started shouting and one person, who was a guest in the house, came there and pacified Popat. She left her inlaws’ house and gone to PW 10 Shankar’s house at Kerul. PW 1 Trambak brought Kausalya to his residence at Karkhed. Thereafter, her brother Vishwanath took her to Jallunder, where she was posted and stayed there for about six months. 3] It is the case of prosecution that while Kausalya was at Jallunder, accused No.1 Mahadev had come to Trimbak’s house along with Ramappa and asked PW 1 Trimbak to bury the past and assured that such episodes would not be repeated. Accused No.1 Mahadev also informed PW 1 Trimbak that he would be going to Mumbai and he wanted money to acquire a room and, on being asked, he demanded Rs.10,000/- from PW 1 Trimbak. However, PW 1 Trimbak expressed his inability to give that amount, whereupon Mahadev and Ramappa left Trimbak’s house. It is the further case of prosecution that after few days PW 2 Vishwanath and Kausalya came to the house of PW 1 Trimbak and after about 8 days, accused no.1 Mahadev and Ramappa came there once again and requested PW 1 Trimbak to forget the past and send Kausalya back to matrimonial home. PW 1 Trimbak asked for written guarantee that his daughter would be safe and would not be illtreated. Accused No.1 Mahadev assured him orally that she would not be illtreated, but, he did not give a written guarantee. Thereupon, PW 1 Trimbak declined to send his daughter and accused no.1 Mahadev and Ramappa left. 4 crapeal882-90.sxw 4] It is the further case of prosecution that at the instance of PW 1 Trimbak, PW 2 Vishwanath came to Mumbai to meet accused No.2 Bhaskar. Accused No.2 Bhaskar told PW 2 Vishwanath to send Kausalya to her in-law’s place at Surdi and that she would be brought to Mumbai. He further informed that her inlaws would not go to PW 1 Trimbak’s house to bring back Kausalya. PW 2 Vishwanath accordingly took Kausalya to her in-law’s place at Surdi. After about two months, some time in December, 1987, Trimbak had come to Mumbai to meet his daughter since he did not get any response to the four or five letters sent by him. He stayed in the house of Kausalya for about two days. During his stay, accused no.1 Mahadev was not in the house. Kausalya told PW 1 Trimbak that he should take her back to native place. It is the further case of prosecution that accused had demanded Rs.30,000/- from PW 2 Vishwanath and shortly before the death of Kausalya, she was treated with cruelty by her husband and her inlaws. There was demand for dowry and she was treated with cruelty and was harassed in connection with the said demand. On 12 th July, 1988, one Parubai Sakhare - PW 11, resident of the same locality where Kausalya used to reside, while returning from work to her home, peeped into Kausalya’s hut through a crevice and found that Kausaluya was hanging by her neck from the roof of the hut. On receiving message from Control Room, Police van went to the hut of Kausalya. PW 6 Narayan, who was in the wireless van then went to Kausalya’s hut and opened the latch of the door from inside after making hole a little bigger and putting his hand through that hole and found that Kausalya was hanging by her neck. PW 12 Ashok Naik and staff attached to Chembur Police Station went there and further investigation was carried out. 5 crapeal882-90.sxw 5] During the course of investigation, it was revealed that it was a case of suicide. As the police felt that no offence was committed, none was registered. Subsequently, PW 1 Trimbak got a complaint dated 16 th July, 1988 (exhibit 11) drafted by an advocate and sent it to police. In that complaint, PW 1 Trimbak alleged that Kausalya has been murdered and that there was demand of dowry and on that account she was treated with cruelty. He alleged that the investigation was not properly carried out. In view of this, papers were sent to Police Prosecutor, Kurla Court seeking his opinion. On 23 rd August, 1988 the Police Prosecutor opined that offence be registered under Sections 498-A, 304-B and 306 read with Section 34 IPC. Consequently, complaint dated 16 th July, 1988 at exhibit 11 was treated as FIR. Accused No.1 was arrested on 23 rd August, 1988. Accused Nos.2, 3 and 4 were arrested on 6 th September, 1988. They were, however, released as they had obtained anticipatory bail. The investigation Officer filed charge sheet in the court of the learned Addl. Chief Metropolitan Magistrate, 11 th Court, Kurla vide C.C. No.100/P/89 and by order dated 1 st February, 1989, the learned Magistrate committed the case to the court of Sessions. 6] The accused were charged with having a common intention, they treated Kausalya with cruelty and harassed for and in connection with demand of dowry, which resulted in commission of suicide on 12 th July, 1988 within seven years of marriage and caused her death and thereby committed offence punishase under Section 304B read with 34 IPC; with having harassed and treated Kausalya with cruelty and compelled her to commit suicide on 12 th July, 1988 and abetted the commission thereof within 6 crapeal882-90.sxw 7 years of the marriage and thus having committed an offence punishable under Section 306 read with Section 34 IPC; and also for treating Kausalya with such cruelty and/or harassment with a view to coercing her or her relatives to meet the unlawful demands for property or valuable security, by a willful conduct, as was likely to cause her injury or damage to limb and she therefore committed suicide and thereby having committed an offence punishable under Section 498-A read with Section 34 IPC. Charges were read over to the accused, who pleaded not guilty and claimed to be tried. 7] The prosecution, in all, examined 12 witnesses. PW 1 Trimbak at exhibit 10, who is father of Kausalya and who made complaint on 16 th July, 1988 at exhibit 11. PW 2 Vishwanath at exhibit 12 who is brother of deceased. PW 3 Sadhu Ganpat Dhonde at exhibit 14, who was panch to spot panchnama dated 12 th July, 1988 exhibit 15 . PW 4 Vishnu Sitaram Pote at exhibit 16 who prepared map at exhibit 17. PW 5 Ashoba Waman Landge, neighbour at exhibit 18. PW 6 Narayan Pundlik Ghadge at exhibit 19, who is Police Constable and was at wireless duty. PW 7 Bhimrao Mathardeo Vanve at exhibit 20, cousin of PW 2 Vishwanath. PW 8 Dr.Prakash Dattatraya Ambekar at exhibit 21, who performed post mortem and prepared post mortem notes exhibit 22. PW 9 Vimal Ashoba Landge at exhibit 23, neighbour of PW 1 Trimbak. PW 10 Shankar Vilas Vanve at exhibit 24, who is brother of Trimbak. PW 11 Parubai Kashinath Sakhare at exhibit 25, is neighbour of accused. PW 12 Ashok Ganpat Naik at exhibit 26 is the Investigating Officer. 8] On the basis of material on record, the learned Sessions Judge came 7 crapeal882-90.sxw to the conclusion that Kausalya died unnatural death by committing suicide. He held that the prosecution failed to prove beyond reasonable doubt that the accused or any of them, with a common intention, subjected the deceased Kausalya to cruelty and harassment for and in connection with the demand for dowry with the result that she died by committing suicide on 12 th July, 1988. The learned Sessions Judge also held that the prosecution failed to prove beyond reasonable doubt that the accused with a common intention of all or any of them, subjected Kausalya to harassment and cruelty and thereby compelled her to commit suicide on 12 th July, 1988 and abetted the commission of the suicide. The learned Sessions Judge further held that the prosecution failed to prove beyond reasonable doubt that all the accused with a common intention of all or any of them subjected the said Kausalya to such cruelty and/or harassment with a view to coercing her of her relations to meet the unlawful demand for property or valuable security and she therefore committed suicide. 9] In order to establish the commission of offence under Section 304B read with Section 34 IPC, Section 305 read with Section 34 IPC and Section 498-A read with Section 34 IPC, the prosecution relied upon the evidence of PW 1 Trimbak, PW 2 Vishwanath, PW 7 Bhimrao, PW 9 Vimal, PW 10 Shankar, PW 11 Parubai. The prosecution also relied upon the evidence of PW 8 Dr.Prakash Ambekar who had performed post mortem on the body of deceased on 13 th July, 1988. PW 8 noted external and unnatural injuries. In so far as the internal injury No.(ii) is concerned, he recorded that there was no fracture of the byoid bone. He gave opinion that the deceased had committed suicide and it was not a homicidal death. 8 crapeal882-90.sxw 10] In so far as the oral evidence of PW 1 Trimbak and PW 2 Vishwanath is concerned, PW 1 Trimbak deposed that after about 4 or 6 months of marriage, he had gone to Surdi to visit his daughter. He did not make any allegations of cruelty and or demand of any amount. Likewise, PW 2 Vishwanath did not allege that the deceased illtreated or harassed or that any demand for any amount was made before December, 1986. In paragrah 2 of his evidence PW 2 Vishwanath, however, deposed that when he came to his village in December, 1986 he visited Kausalya at Surdi. She told him that the accused no.1 needed Rs.30,000/- to acquire a room in Wadala, Mumbai. It is the case of prosecution that since the demand made by accused no.1 was not met, accused had beaten Kausalya. However, in paragraph 4 of deposition PW 2 Vishwanath deposed that he used to write letters to his father PW 1 Trimbak asking him to meet Kausalya to know how she was. PW 1 Trimbak replied to his letters saying that Kausalya was all right. However, earlier part of demand as deposed in paragraph 2 of the deposition, of PW 2 Vishwanath is contradicted by him in paragraph 13 of the deposition wherein he stated that after he expressed his inability to pay Rs.30,000/-, accused no.1 told him that it was all right with him. He further deposed that it would be correct to say that none of the accused ever demanded any money from him. He, however, thereafter went on to depose that accused No.1 had not demanded money from him and demand was made to Kausalya. 11] It is the case of the prosecution that accused no.4 made advances to Kausalya sometime prior to March, 1987. Though the prosecution came 9 crapeal882-90.sxw with the case that at the relevant time one guest was also present, the prosecution has neither given any details about so called guest nor examined him. It has also come on record in the evidence of PW 2 Vishwanath that accused no.1 has two residential premises, one in village Surdi and another in the field. The record shows that accused no.4 stays in the house in the field where there is only one room. PW 2 Vishwanath deposed that Kausalya told him that on the night in question, Kausalya was sleeping in the house in the field. Her mother-in-law was also there at that time when the incident took place. There was also a guest present in the house who allegedly intervened when the accused no.4 had beaten Kausalya. It is unbelievable that in the presence of so many persons the accused no.4 would dare to make advances to Kausalya and, on being rebuffed, beat her. 12] PW 10 Shankar Vilas Vanve deposed that after the alleged incident, deceased Kausalya told him that she had spent the night in the bushes. According to PW 2 Vishwanath, Trimbak had written letter to him wherein it was set out that Kausalya had told PW 1 Trimbak that she had passed the night in a temple. However, PW 10 Shankar deposed that there was no temple in the vicinity. Though PW 10 Shankar claims that Kausalya had told him about the alleged incident, inspite of reporting the incident to PW 1 Trimbak, he has alleged to have gone to Surdi and remonstrated with accused no.4 and had taken him to the Sarpanch in respect of the said incident. However, the prosecution has not examined the Sarpanch. Even Ramkisan, cousin of accused no.4 and Ramappa, brother-in-law of accused no.4 who informed the PW 1 Trimak about running away of deceased, were 10 crapeal882-90.sxw also not examined by the prosecution. The story set up by the prosecution is improbable. This has also to be appreciated on the backdrop of the fact that PW 1 lodged a complaint dated 16 th July, 1988 exhibit 11, which was drafted by an advocate. In the said complaint exhibit 11, there is no reference to this alleged incident of the accused no.4 making advances towards Kausalya. 13] It was tried to be contended that the statement of PW 1 Trimbak recorded by the Sub Inspector Naik on 14 th July, 1988, was not properly recorded. However, perusal of the deposition of PW 1 Trimbak clearly shows that the Sub Inspector Naik was helpful to him and after recording his statement at the Police Station, the same was read over and explained to him and he found that the same had been correctly recorded. The letters addressed by PW 1 Trimbak and PW 2 Vishwanath to the accused Nos.1 and 2 which are exhibits D-1 to D-5 did not make any reference to the alleged incident. Even PW 5 Ashoba, PW 9 Vimal, neighbours of PW Trimbak as also PW 7 Bhimrao did not depose about the said incident. It is also relevant to note that the statements of PW 5 Ashoba and PW 9 Vimal were recorded nearly after two years. Perusal of letter exhibit D-5 dated 5 th June, 1988 also indicates that the relations were cordial. In fact, perusal of this letter indicates that PW 2 Vishwanath had purchased a watch for accused no.1. 14] As far as demand of Rs.30,000/- is concerned, according to PW 1 Trimbak, accused no.1 had demanded Rs.10,000/- whereas, PW 2 Vishwanath deposed that accused no.1 had demanded Rs.30,000/-. In fact, 11 crapeal882-90.sxw it has come on record that the accused no.1 had already acquired one room in Mumbai and it was not the case of prosecution that either the said room was unsuitable or that the couple wanted to shift their accommodation. In view of this, it is difficult to accept that the prosecution has established the demand alleged to have been made by the accused no.1. Considering the totality of the circumstances of the case, we are of the opinion that the prosecution has not established the guilt of the accused beyond reasonable doubt. The learned Sessions Judge, on the basis of material on record, came to the conclusion that the prosecution has failed to establish the case against the accused by leading cogent evidence on record. The prosecution has failed to prove beyond reasonable doubt that the accused or anyone of them illtreated Kausalya or subjected her to cruelty or harassment and/or that any demand for money was made by anyone of the accused. This being the position there can be neither the question of Kausalya being compelled to commit suicide due to harassment or cruelty nor does arise the question of her harassment with a view to coercing her or her relations to meet any unlawful demand, was established by the prosecution. 15] Considering the material on record, we do not find that the learned Sessions Judge committed any error in acquitting the accused. The reasoning and conclusions of the learned Sessions Judge cannot be termed as perverse. The appeal, therefore, is devoid of any substance and the same is dismissed. [R.G.KETKAR, J.] [D.B.BHOSALE, J.]