1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 211 OF 1997 Ambadas s/o Jeevanrao Patil, aged 25 years, Occupation Agriculture,r/o Bhutan happarga, Taluka Biloli, District Nanded APPELLANT (Ori. Accused) V E R S U S The State of Maharashtra RESPONDENT Mr. N. N. Shinde, Counsel for appellant Smt. A. V. Gondhalekar, APP for respondent [ CORAM : V.R. KINGAONKAR, J. ] [Judgement reserved on : 29th August, 2009] [Judgement pronounced on : 7th October, 2009] JUDGMENT 1. This appeal is directed against Judgment rendered by learned Additional Sessions Judge, Biloli, in Sessions Case No. 54 of 1995, whereby the 2 appellant has been convicted for offences punishable under Sections 498-A and 304-B of the I.P. Code and sentenced to suffer rigorous imprisonment of two years and to pay a fine of Rs.2,000/-, in default to suffer rigorous imprisonment for six months on the first count and to suffer rigorous imprisonment for seven years on the second count. 2. The prosecution case, in nutshell, is that the appellant ill-treated his deceased wife, namely, Shobhabai on account of her failure to fulfill unlawful demand of amount required to purchase a motorcycle or to provide the motorcycle to him. In the month of May, 1992, marriage between the appellant and Shobhabai was performed. She happily cohabited with the appellant for initial period of about six months. She became pregnant, and as such, was reached to house of her parents for the purpose of delivery. She delivered a male child. She resided with her parents and brothers for about one year. She was reached to house of the appellant by her brother - Suresh. The customary presents were given to the appellant and his relatives when she was reached to his house. After some period, he started demanding money for purchasing a motorcycle. 3 She narrated about his demands to her brother and others. They expressed financial difficulties to meet out such demand. However, he and his relatives continued to make such demand. They used to ill- treat Shobhabai because of non-fulfillment of the demand. He used to beat her due to her failure to fetch the required amount from her parents. On 8th July, 1995, the parents and brother received message regarding her death. They immediately went to house of the appellant at village Bhutan Happarga. They noticed some marks of violence on her body. They suspected that she was done to death some where in the night between 7th and 8th July, 1995 by the appellant and his relatives in the matrimonial home. Her brother (PW Girish) lodged a report at Markhel Police Station in the next evening. On basis of material collected during course of the investigation, the appellant along with his parents, brother and sister were chargesheeted for the offences punishable under Sections 498-A and 304-B of the I.P.Code. 3. At the trial, the appellant and other four co-accused persons denied truth into the charge (Exh.28). It was stated that deceased Shobhabai was 4 in 8th month of pregnancy at the relevant time. She had already suffered medial problem during the first delivery. She suffered from gynaecological problems in the relevant night and died as a result of prematured and obstructed delivery. They submitted that she was never harassed or ill-treated by either of them. They denied the allegations about unlawful demand of money for purchasing of a motorcycle. The appellant denied that Shobhabai was being beaten up by him. 4. At the trial, the prosecution examined in all 7 (seven) witnesses in support of its case. The prosecution also adduced certain documentary evidence. The learned Sessions Judge held that the original accused Nos. 2 to 5 were not proved to have ill-treated deceased Shobhabai and did not abet the appellant for his act of alleged unlawful demand of a motorcycle. The learned Sessions Judge acquitted them of the charges. The learned Sessions Judge however held that the appellant subjected deceased Shobhabai to matrimonial cruelty and she died under suspicious circumstances within period of seven years of the marriage, and soon before her death she was subjected to cruelty on account of her failure 5 to comply with the unlawful demand of the appellant. Consequently, he came to be convicted and sentenced, as described hereinabove. 5. Heard learned counsel Mr. N. N. Shinde for the appellant and learned A.P.P. Smt. A. V. Gondhalekar for the State. 6. The points which fall for consideration are: (i) Whether it is proved beyond reasonable realm of doubt that the appellant subjected deceased Shobhabai to matrimonial cruelty during the relevant period of about 1 ½ year before her death on account of non-fulfillment of his unlawful demand ? (ii) Whether it is proved that deceased Shobhabai died during night between 7th and 8th July, 1995 under the suspicious circumstances, and soon after her death she was subjected to matrimonial cruelty by the appellant on account of non-fulfillment of demand of dowry and therefore presumption 6 under Section 113-B of the Evidence Act could be raised ? 7. Out of seven witnesses examined by the prosecution, PW 1 Girish is the brother and PW 3 Gangadhar is the father of deceased Shobhabai. It may be noticed that initially the case put forth by them was that Shobhabai was beaten up by the appellant in the relevant night and was done to death. The investigation was carried out on the footing that he had assaulted her by means of a wooden stick (khilli) which is used for supporting ends of the yoke. The Investigating Officer is said to have recovered wooden stick (khilli) at instance of the appellant, on the basis of his statement recorded vide Exh.51. The testimony of PW 4 Vyankatrao, who happens to be panch witness, purports to show that he signed the recovery panchnama (Exh.51). He deposed that the wooden stick (article-5) was seized in his presence. He stated that the appellant had produced the wooden stick from his house. He, however, admitted that the police had called him at the village Panchayat Office and told him that the panchnama regarding wooden stick was to be prepared. He further admitted that he had not seen as to from where the 7 wooden stick was produced before the police. He further admitted that the police had not read over the contents of the panchnama to him. He admitted that he had not seen the appellant putting his signature on memorandum panchnama (Exh.51). The wooden stick (khilli) did not appear to bear any stain of blood. Needless to say, the recovery of the wooden stick (khilli) is not proved nor identity of the same as weapon of the assault is established. In this context, version of PW 5 Vitthal is also not of much avail. He admitted that he was called at ‘baithak’ of another panch where memorandum panchnama was drawn. Thus, the alleged recovery of the wooden stick is of no avail to corroborate the allegation regarding assault mounted on deceased Shobhabai by the appellant by means of said wooden stick (khilli). 8. Coming to the versions of PW Girish and PW Gangadhar, it is manifestly clear that for about one year and eight months after the marriage there was no room for any grievance regarding matrimonial life of deceased Shobhabai. It is stated by PW Girish that Shobhabai was having ill-treatment for amount of the motorcycle or the motorcycle and for 5 Tolas 8 gold or alternatively for demand of bullocks and bullock-cart. The First Information Report (Exh.45) does not show anything about the demand of bullocks or bullock-cart. Nor there is reference in the First Information Report (Exh.45) regarding demand of 5 Tolas gold. He stated that after about three months of her joining company of the appellant, there was a marriage ceremony of his cousin sister and then Shobhabai alone attended the said function. According to him, at that time, she narrated to him and the parents that the appellant was giving ill- treatment to her due to non-fulfillment of demand of a motorcycle. They convinced her to go to his house and sent her with his another brother by name Suresh. Obviously, for about couple of years after the marriage, there was no grievance regarding the matrimonial cruelty. For, after about 6-7 months of the marriage, she became pregnant and might have been sent to house of her parents in the last month of the pregnancy some where in the month of March/April, 1993. Admittedly, she resided with her parents for about one year thereafter i. e. till about March/April, 1994. It is not clear as to what happened after her return to house of the appellant which could suddenly change his attitude towards 9 her. The prosecution has not examined Suresh so as to make it clear as to how she was received when he reached her to the appellant’s house. 9. The testimony of PW Gangadhar purports to show that only vague assertion is made by him that Shobhabai was being ill-treated at hands of the accused persons for motorcycle, bullock-cart and money. What was the nature of ill-treatment is not stated by him. What was the amount demanded is also unclear. As stated before, the First Information Report does not reveal anything about demand of a bullock-cart. The versions of both the witnesses do not specify the period of such unlawful demands, nor they have described the nature of alleged matrimonial cruelty meted out to Shobhabai at hands of the appellant. 10. What transpires from the versions of both the above witnesses is that they noticed some injury marks on thighs and breasts of Shobhabai, and therefore, it was decided that report shall be lodged at the police station. It is stated by PW Girish that he scribed the First Information Report (Exh.45). He deposed that he has told the police 10 while giving the report that his sister was assaulted by means of a wooden stick and fist blows by the appellant. There is material omission in the First Information Report in this context. However, he explained that he could not mention the said fact in the First Information Report (Exh.45) because he was in hurry. It is explicit that after the post mortem examination was conducted and on noticing some marks of violence on her body, PW Girish and his relatives decided to lodge the First Information Report. The recitals of the First Information Report (Exh.45) would show that he suspected that she was done to death by the appellant, her in-laws and the brother-in-law. It is pertinent to notice that though she was pregnant and the foetus of stillborn child was found protruding outside the vulva, PW Girish flatly denied that she was pregnant at the relevant time and died due to gynaecological complications. His conduct shows that he has no much regard for truth. He admitted that the panch witnesses on the inquest panchnama are closely related to him. Inquest panchnama (Exh.36) was drawn with the help of his close relatives. 11. No one from the proximity of the 11 residential house of the appellant was put in the witness box in order to shed some light on the matrimonial relationship between deceased Shobhabai and the appellant. The versions of PW Girish and PW Gangadhar are insufficient to make out a reliable case regarding the alleged matrimonial cruelty meted out to deceased Shobhabai. Not because they are the close relatives of Shobhabai that their versions are unacceptable, but neither of them could specify the nature of alleged ill-treatment as well as the period of such ill-treatment meted out to deceased Shobhabai. She had visited their house during marriage of her cousin in or about may, 1995. What was the matrimonial relationship between the appellant and deceased Shobhabai between the first week of May, 1995 till first week of July, 1995 is not on record. The recitals of the inquest panchnama (Exh.36) would show that no marks of assault were found on the person of deceased Shobhabai. There were blackish marks on her thighs. It was noticed that she had purged. It was noticed that her tongue was bitten and trapped between the teeth. 12. Now, I shall advert to version of PW 6 Dr. Malshetwar. He conducted the post mortem examination 12 on the dead body of Shobhabai. His version purports to show that there were four contusions on her person including the two contusions, each on her both thighs. They were the ante mortem injuries. He deposed that she was pregnant. The dead-body was highly decomposed. It was noticed that there was gravid uterus with its content i. e. foetus of a dead male child with placenta. It was prolapsed and present at vulva. Thus, a part of the stillborn child was found protruding outside the vagina. He clearly stated that she might have died about 36 to 40 years before the post mortem examination and he was unable to express any opinion regarding probable cause of her death. He admitted that if a patient of toxemia is pregnant of more than eight months, it is called Pre Eclamptic toxemia. He admitted that during the life time if the body is firmly held by other persons, then such contusions may occur during course of convulsions. The post mortem notes were sent to Civil Surgeon to ascertain the cause of death. It appears that the cause of death could not be asserted by the Civil Surgeon too. 13. The first delivery of Shobhabai had taken place in a Hospital at Degloor and the appellant had 13 taken her to that hospital. The version of PW Dr. Malshetwar would indicate that part of the head of the stillborn male child had protruded out of the vagina. It was attached with placenta that was visible outside the vulva. This appears to be case of third degree inversion of the uterus. In the text book on “Obstetrics” (By D. C. Dutta – Page No. 421) it is opined that such is an extremely rare but a life threatening complication in third degree stage in which the uterus is turned inside out partially or completely. One cannot be oblivious of the fact that medical complications did occur in the odd hours of night between 7th and 8th July, 1995 at small residential house of the appellant in the village locality. Obviously, there is possibility of her suffering from medical complications. It is probable that she had suffered from conversions and some of the women might have firmly held her or pressed her thighs so as to control her. That could be the reason for presence of pressure marks on both her thighs. 14. All said and done, in absence of reliable and tangible evidence about the matrimonial cruelty meted out to deceased Shobhabai, particularly, at 14 hands of the appellant, he should not have been convicted for the offences punishable under Sections 498-A and 304-B of the I.P. Code. He deserves benefit of reasonable doubt. Hence, the appeal is allowed. The impugned Judgment rendered in Sessions Case No. 54 of 1995 is set aside and appellant Ambadas s/o Jivanrao Patil is acquitted of the charges. His bail bonds be deemed as cancelled. The fine amount, if is deposited, be refunded to him. [ V.R. KINGAONKAR ] JUDGE srm/criapl211.97