1 criapl-36.01 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 36 OF 2001 01. Limbraj s/i Vishnu Dhakane, age 41 years, occup. Agriculture, r/o Sarul, Tq. Kaij, District Beed. 02. Bysakhu w/o Vishnu Dhakne, age 66 years, occupation : Agril. r/of Sarul, Tq. Kaij, District Beed. 03. Vishnu s/o Baburao Dhakne, age 71 years, occup. agriculture, r/of Sarul, Tq. and District Beed. 04. Youvraj s/o Vishnu Dhakne, age 36 years, occup. agriculture, r/o Sarul, Tq. Kaij, District Beed. 05. Dhanraj s/o Vishnu Dhakne, age 20 years, occup. agriculture, Appellants/ r/o Sarul, Tq. Kaij, District Beed. orig. accused. versus The State of Maharashtra, through Police Station Officer, Respondent/ Police Station, Kaij, Dist.Beed. orig. complainant ------- Shri S.P. Katneshwarkar, Advocate, for appellants. Shri V.G. Shelke, A.P.P. for the Respondent-State. 2 criapl-36.01 Coram : Shrihari P. Davare, J. Judgment reserved on : 23.3.2011 Judgment pronounced on: 06.4.2011 Judgment (Per : Shrihari P. Davare, J.) 01. Heard learned counsel for the parties. 02. This is an appeal, preferred by original accused Nos. 1 to 5, challenging the conviction and sentence inflicted upon them, by way of judgment and order dated 29.12.2000, rendered by learned II Additional Sessions Judge, Ambajogai, in Sessions Case No.59 of 1999, thereby convicting them for offence punishable under Section 498-A, read with Section 34, of the Indian Penal Code, and sentencing them to suffer rigorous imprisonment for one year, each and to pay fine of Rs.500/-, each, in default, to undergo further rigorous imprisonment for three months, each, and also convicting them for offence under Section 306, read with Section 34, of IPC, and sentencing them to suffer rigorous imprisonment for three years, each and to pay fine of Rs.1000/- each, in default to suffer further rigorous imprisonment for six months, and also directing the aforesaid substantive sentences to run concurrently. 3 criapl-36.01 03. Briefly stated, the facts of the case, which gave rise to the present appeal, are that the victim Chandrabhagabai, who was the daughter of PW-11 Maroti Kisan Choure, resident of village Jivachi Wadi, married to accused No.1, namely, Limbraj, resident of village Sarul, Taluka Kaij, District Beed, about 8 to 9 years back, and accused Nos. 2 Bysakhu and accused No. 3 Vishnu are her mother- in-law and father-in-law respectively, whereas accused No.4 Youvraj and accused No.5 Dhanraj are her brothers-in-law, who all were residing jointly. Out of the wedlock of Chandrabhagabai with accused No.1 Limbraj, two sons and one daughter were begotten. 04. It is alleged that the victim Chandrabahagabai was found to have consumed some poisonous substance and lying in unconscious condition in front of the cattle-shed of the accused at his field, on 26.2.1999, which was noticed by PW-10 Shrimant Dhakne, firstly, and hence, he called her and tried to make her sit, but she did not respond, and vomited. He smelled poison from her mouth, and therefore, he informed one Nilkanth and thereafter, she was taken to Primary Health Centre, Neknoor, firstly, in the bullock-cart, and thereafter to Civil Hospital, Beed, where she was declared dead. 4 criapl-36.01 Thereafter, inquest panchanama of the dead body was conducted in the Civil Hospital, Beed. Moreover, PW-6 Dr. Kailash Hiraman Dudhal conducted post mortem on the dead body of Chandrabhagabai, on 26.2.1999, whereafter her dead body was brought to village Sarul. Accordingly, A.D. No.16 of 1999 was registered with Police Station, Kaij, and then CR No.48 of 1999 was registered, on 1.3.1999 for offences punishable under Sections 498-A and 306 read with Section 34 of the IPC, by Police Head Constable Shri Dnyaneshwar Tukaram Pawar (PW-5). Head Constable H.Y. Munjal was assigned enquiry of the said A.D. case, and accordingly, he visited the spot of the incident in front of the cattle shed belonging to accused No.3 Vishnu and collected samples of soil of vomit and plain soil from the said spot and drew spot panchanama dated 27.2.1999 (Exh.19) in presence of Suryabhan Laxman Dhakne (PW-1) and one Babasaheb Dadarao Jadhav. 05. It is also the case of the prosecution that on 28.2.1999, Police Head Constable Babu Sidram Mhaske (PW-12) was the in charge of police out post, Nandurghat and on that day, at about 5.00 p.m., Suryakant Maroti Chaure (PW-8), the brother of the victim, lodged complaint, which was recorded by PW-12 Babu Mhaske, as per 5 criapl-36.01 narration of Suryakant.. Thereafter, PW-12 Babu Mhaske prepared occurrence report, which is produced at Exh. 26, and investigation papers were handed over to him. Accordingly, on 1.3.1999, he recorded statements of witnesses, namely, Janabai Maroti Chaure (mother of the victim Chandrabhagabai), Maroti Kishan Chaure (PW-11 and father of the victim), Ramchandra Maroti Chaure (PW-4) and Chanderrao Dnyanoba Dhakne (PW-9). On 2.3.1999, he recorded statements of the witnesses, namely, Gorakh Yedba Chaure (PW-7), who is cousin of the victim, Ambadas, Sajjanbai (PW-2), Nilkanth, and Shrimant Dhakne (PW-10) and others. Earlier, on 27.2.1999, he had recorded statement of PW-10 Shankar Dhakne, in connection with A.D. case No.16 of 1999, as aforesaid. Moreover, PW-12 Babu Mhaske also arrested the accused persons on 1.3.1999. 06. During the course of investigation, the sample of vomit soil and plain soil were sent to the Chemical Analyzer for analysis, vide forwarding letter dated 20.8.1999, which is produced at Exh. 41. Moreover, one letter was issued to the Civil Surgeon, Beed, on 19.4.1999, requesting him to hand over the viscera to Police Constable Bk. No.180 who was deputed for the said purpose, for 6 criapl-36.01 being forwarded to the Forensic Science Laboratory, Aurangabad, and the copy of the said letter is produced at Exhibit 42. It is alleged by the complainant Suryakant Chaure (PW-8) that the accused persons subjected the deceased Chandrabhagabai to cruelty to meet their unlawful demand of money and she was tortured and thereby they abetted Chandrabhagabai to commit suicide. 07. After receipt of post mortem report and the advanced certificate of cause of death, and on completion of investigation, charge-sheet was filed before the learned Judicial Magistrate, First Class, Kaij, on 13.4.1999, and thereafter the said case was committed to the Court of Sessions, Ambajogai, by the learned J.M.F.C., Kaij, on 21.6.1999. Accordingly, charge was framed againstaccused persons (Exh.10-C), on 18.8.2000 and their pleas were recorded, and they pleaded not guilty to the charges levelled against them and claimed to be tried. The defence of the accused is of total denial and they stated that they have been implicated in present case, falsely, and accordingly, they claimed to be innocent. 08. To substantiate its case, inasmuch as 12 witnesses have been examined by the prosecution, as mentioned below. 7 criapl-36.01 PW-1 Suryabhan Laxman Dhakne Panch to spot panchanama (Ex.19),regarding collection of soil samples. He turned hostile. PW-2 Sajjanbai Ramchandra Chaure Sister of the victim. PW-3 Kesharbai Ambadas Kendre Sister of the victim. PW-4 Ramchandra Maroti Chaure Brother of the victim. PW-5 Dnyaneshwar Tukaram Pawar Police Head Constable, who registered offence against the accused persons. PW-6 Dr.Kailash Hiraman Dudhal Medical Officer,who carried pm on the deceased. PW-7 Gorakh Yedba Chaure Cousin of the victim. PW-8 Suryakant Maroti Chaure Complainant and brother of the victim. PW-9 Chanderrao Dnyanoba Dhakne Cousin of the victim. PW-10 Shrimant Shankar Dhakne He noticed the victim lying in the field, in unconscious condition, firstly. PW-11 Maroti Kishan Choure Father of the victim. PW-12 Babu Sidram Mhaske Police Head Constable and Investigating Officer. 09. On the background of aforesaid oral evidence led by the prosecution, accused neither examined themselves on oath, nor examined any witness in defence. Accordingly, after assessing and 8 criapl-36.01 analyzing oral and documentary evidence, and considering the submissions advanced by the learned counsel for the parties, the learned Sessions Judge, Ambajogai, convicted and sentenced the accused persons, as mentioned hereinabove, by the impugned judgment and order dated 29.12.2000. Being aggrieved and dissatisfied by the said judgment and order of conviction and sentence, original accused have preferred present appeal, and prayed for quashment thereof. 10. Before adverting to the submissions advanced by the learned counsel for the parties, it is necessary to scrutinize and analyzing the evidence adduced and produced by the parties, and in the said context, coming to the deposition of PW-8 Suryakant Chaure, who is the complainant and brother of the victim, he stated that he, along with his parents and brother Ramchandra reside together and Kesharbai and deceased Chandrabhagabai are her sisters. He stated that Chandrabhagabai married with accused No.1. Limbraj about nine years prior to the incident and she gave birth to two sons and one daughter out of the wedlock with accused No.1. He further stated that since her marriage, deceased Chandrabhagabaii was illtreated and even food was not provided to her and she used 9 criapl-36.01 to be assaulted, and also compelled to do work in the field only. He further stated that her husband i.e. accused No.1, as well as parents-in-law and brothers in law, i.e. accused Nos. 2 to 5, illtreated her, and she had disclosed the same to her parents when she had visited to her parental house, at the time of festivals. He stated that he himself, his parents, and his brother used to go to matrimonial home of his sister Chandrabhagabai, and request her in-laws to treat her well, however, ill-treatment to the victim at the hands of her in-laws, continued. PW-8 Surykanat also stated that the victim Chandrakalabai disclosed him that her in-laws demanded Rs.25,000/= to purchase a flour mill, but he had expressed inability therefor. 11. PW-8 Suryakant further stated that the incident occurred on 26.2.1999, when he was at Bhaurao Co-operative Sugar factory, Biloli. On 27.2.1999, PW-10 Shrimant Dhakne and PW-7 Gorakh Choure came to him and informed him about the death of Chandrabhagabai due to consumption of poisonous substance, and hence, PW-8 Suryakant, PW-4 Ramchandra and PW-2 Sajjanbai rushed and collected his father PW-11 Maroti, who was at Shripatroi Wadi, and then all of them proceeded to village Sarola, 10 criapl-36.01 to see the victim Chandrabhagabai. However, they found that last rites of Chandrbhagabai were already performed prior to their arrival. PW-8 Suryakant further stated that his mother was weeping and asked him whether he had brought the amount of Rs. 25,000/= for which victim was harassed on the previous day and she committed suicide due to harassment at the hands of her in- laws to meet the demand of said money, and thereafter, they all returned back to village Jivachi Wadi. He further stated that on next day, he went to Police Station, Kaij, and his complaint was recorded at 4.00 p.m. at Nandurghat police out post, as per his narration, which is marked as Exh.32. 12. During the course of cross examination, PW-8 stated that the in-laws of Chandrabhagabai, started giving her ill-treatment after about 1 to 1-1/2 months after the marriage and she was being ill- treated on the ground that she was unable to cook the food, properly. He visited matrimonial home of Chandrabhagabai for about 8 to 9 times since her marriage until her death, and the ill- treatment by in-laws was tolerated by her with the hope that they would improve their behaviour and would treat her, properly. PW-8 Suryakant further stated that the amount of Rs.25,000/= for flour 11 criapl-36.01 mill, was demanded about one year prior to the suicide by Chandrabhagabai, and he had assured her in-laws that he would meet their demand of money, after completion of season of sugarcane. Moreover, the defence of the accused was put to PW-8 Suryakant that the victim Chandrabhagabai was suffering from kidney disease since about 2-3 years prior to the incident, and she was also weak and since she could not bear sufferings, she resorted to end her life, but same was denied by him. As regards flour mill of in-laws of victim Chandrabhagabai, he stated that he does not know for how much period it was run, and he was unable to state the period till when the accused ran the flour mill after marriage of Chandrabhagabai, and hence, it was suggested to him that there was no illtreatment or harassment to deceased Chandrabhagabai with intend to meet the demand of Rs.25,000/= for flour mill, at any time, but he denied the same. He was suggested that the death of the victim was not caused on account of ill-treatment or harassment to her, but he denied the same. 13. Thus, it is evident from the deposition of PW-8 Suryakant that although the victim Chandrabhagabai was ill-treated since her marriage for about 8-9 years, and even if the alleged incident of 12 criapl-36.01 suicide by her took place on 26.2.1999, yet there appears to be no immediate prior incident, having close proximity which could be said to have led to committal of suicide by her. Moreover, the alleged demand of Rs. 25,000/= for flour mill by the in-laws of the victim Chandrabhagabai does not appear to have coerced Chandrakalabai or her relatives to fulfill the said alleged unlawful demand. In fact, it appears from the testimony of PW-8 Suryakant that victim Chandrabhagabai was ill-treated for the reason that she was not able to cook the food, properly, and it is apparent from his testimony that the amount of flour mill was demanded about one year prior to the incident, as stated earlier, and as such, there is no close proximity in the alleged unlawful demand of money and the suicide by victim Chandrabhagabai. 14. The defence put up its case to witness Suryakant that Chandrabhagabai was suffering from kidney disease since 2-3 years prior to the incident and had become weak and was unable to bear suffering, and hence, she decided to end her life, by committing suicide, but same was denied by him. 13 criapl-36.01 15. That takes me to the deposition of PW-9 Chanderrao Dnyanoba Dhakne, cousin of the victim Chandrabhagabai. He stated that the marriage of Chandrabhagabai took place about 8 to 9 years prior to the incident, with accused No.1 Limbraj, and two sons and two daughters were begotten out of the said wedlock. He further stated that the in-laws of Chandrbhagabai used to beat her and did not provide food to her, properly and Chandrabhagabai had disclosed the same to him, and in turn, he disclosed the same to her parents. He stated that he also persuaded in-laws of Chandrabhagabai to treat her well, however, they continued to give ill-treatment to her. He further stated that Chandrabhagabai had disclosed him about 12 months prior to the incident that she was harassed to meet the demand of Rs.25,000/= required for purchase of flour mill, but her parents were unable to meet the said demand, and hence, she was further harassed by her in laws. He further stated that on 26.2.1999, he learnt that victim committed suicide by consuming poison on account of ill-treatment and harassment by her in-laws. 16. In the cross examination, PW-9 Chanderrao stated that Chandrabhagabai was ill-treated and harassed for about 2 to 4 14 criapl-36.01 years before the incident, to meet the unlawful demand of money for flour mill which was run by her in-laws 4 to 5 years prior to the incident. He further stated that the police did not record his statement, nor he stated before the police, regarding ill-treatment and harassment to victim Chandrabhagabai. However, subsequently, he stated that police had interrogated with him and he had stated to the police that prior to demise of Chandrabhagabai, her in laws started ill-treating her for non fulfillment of demand of Rs.25,000/= required for flour mill, but same was not mentioned in his statement, amounting to omission. Hence, suggestion was given to this witness that in-laws of the victim Chandrabhagabai never illtreated or harassed her on account of non-fulfillment of demand of Rs.25,000/=, but he denied the same. He was also suggested that being the relative of victim Chandrabhagabai, he was deposing falsely, but he denied the same. 17. It is apparent from the evidence of PW-9 Chanderrao Dhakne that victim Chandrabhagabai was being harassed and ill-treated for about 4 to 5 years prior to the incident, to meet the alleged unlawful demand of money for flour mill and she disclosed the same to him about 12 months back from the incident, which, in 15 criapl-36.01 turn, was informed by him to her parents. Initially, he stated that the police did not record his statement, but later on he improved his version and stated that the police had interrogated with him, but the very version of alleged ill-treatment to Chandrabhagabai by her in-laws to meet the demand of Rs.25,000/- for flour mill since 12 months prior to he demise, is under omission, and hence, same diminishes credibility of his testimony. 18. Coming to the deposition of PW-11 Maroti Kishan Choure, father of the victim, who stated that his daughter Chandrabhagabai married to accused No.1 Limbraj, about 7 to 8 years prior to the incident and she was ill-treated at the hands of her husband and in laws, on the ground that she was not cooking the food, properly, and hence, she was subjected to starvation and also compelled to work in the field. He further stated that Chandrabhagabai used to tell him about ill-treatment to her, whenever she visited to his house, on account of festivals. At that time, he and other relatives, used to persuade her husband and in laws to treat her well, and accordingly, she used to be treated well for some period, but again ill-treatment to her, used to be continued. He stated that the in-laws and brother-in-laws of the 16 criapl-36.01 victim were demanding Rs.25,000/- from him, about one year prior to the incident, but he was unable to meet the said demand and her in-laws iltreated her, since then. He also stated that Chandrabhagabai was fade up with the ill-treatment meted out to her, and hence, resorted to end her life, by committing suicide. 19. In cross examination, PW-11 Maroti stated that Chandrabhagabai was harassed for about two years prior to her death, on the ground that she was unable to cook the food, properly, and do the domestic work. He further stated that he used to visit matrimonial house of her daughter Chandrabhagabai once or twice in a year. He also stated that the accused had a flour mill which was run by them for two years after the marriage of Chandrabhagabai, however, thereafter it was not functioning. 20. Pertinently, it is evident from the testimony of PW-11 Maroti, that his daughter Chandrabhagabai, was ill-treated at the hands of her husband and in laws, since she was unable to cook the food, properly. As regards unlawful demand of Rs.25,000/=, he stated that it was made by parents-in-law and brothers-in-law of Chandrabhagabai, about one year prior to the incident, for the 17 criapl-36.01 purpose of flour mill. Accordingly, there is no close proximity between the said demand of money and occurrence of the incident of alleged suicide by the victim, and there is huge gap of about one year between the same. Moreover, he stated in the cross examination that he used to visit matrimonial house of his daughter once or twice a year, and therefore, it is apparent that he was not in close contacts, personally; with Chandrabhagabai and her husband and in-laws, to receive the first hand information about the alleged treatment to her. 21. Moreover, PW-11 Maroti ambiguously stated that victim Chandrabhagabai was illtreated by her husband, parents in law and brothers in law, but he did not give specific name of any of the accused, attributing any specific role to each of them in the alleged illtreatment and harassment to his daughter Chandrabhagabai, and therefore, it is not clear as to which of the accused played which role in such ill-treatment and harassment on account of alleged demand of Rs.25,000/= for flour mill. 22. That takes me to the testimony of PW-3 Kesharbai Ambadas Kendre, sister of the victim Chandrabhagabai, who deposed that 18 criapl-36.01 Chandrabhagabai used to meet her whenever they both used to visit their parental house at Jivachi Wadi, and she used to complain about her starvation and subjecting her to do hard work, such as, removal of cow dunk from the cattle-shed, as well as about her in-laws offering stale food to her. Kesharbai further stated that the victim was harassed at the hands of her in-laws, with intend to meet their unlawful demand of Rs.25,000/= required for flour mill. Kesharbai further stated that harassment being intolerable, Chandrabhagabai consumed poison and committed suicide, and she identified the accused persons before the court. 23. In cross examination, Kesharbai stated that in-laws of Chandrabhagabai started ill-treating her since birth of the first child, a female child, and thereafter two male children were born. She also stated that police had interrogated with her, but then changed her version, saying that police did not interrogate with her. Hence, suggestion was given to her that she deposed falsely that Chandrabhagabai was subjected to cruelty with intent to meet the demand of Rs.25,000/= for flour mill, but she denied the same. 19 criapl-36.01 24. It appears from the testimony of witness Kesharbai that in- laws of Chandrabhagabai were ill-treating her, since birth of the first child, which was a female child, i.e. 2 to 3 years since marriage, and therefore, a possibility of subjecting her to ill- treatment by husband and in-laws on that count, cannot be ruled out. As regards alleged demand of Rs.25,000/= and illtreatement and harassment to victim Chandrabhagabai, at the hands of her in- laws, due to non-fulfillment of the same, PW-3 Kesharbai nowhere stated in her deposition as to which of the accused harassed deceased Chandrabhagabai and in what manner, and a bare statement in respect thereof without assigning any specific role to each of the accused therein, would create suspicion about the alleged ill-treatment and harassment to the victim, at the hands of her husband and in-laws. 25. Coming to the deposition of PW-4 Ramchandra Maroti Choure, brother of the victim Chandrabhagabai, it is seen from his evidence that Chandrabhagabai had married with accused No.1 Limbraj, about 8 to 9 years prior to the incident and she had two sons and a daughter out of the said wedlock, but the daughter was 20 criapl-36.01 not alive. He further stated that Chandrabhagabai was residing in her matrimonial house since marriage, and she used to meet him whenever she visited his house, on account of festivals. He further stated that Chandrabhagabai used to complain to him that she was treated with cruelty and was compelled to do hard work in the field and also cleaning of cattle-shed and she was being assaulted and kept starved. He further stated that, he himself and his parents and brother persuaded the in-laws of Chandrabhagabai not to ill-treat her, but they did not pay any heed, and continued to give illtreatment to her. He also stated that at the time of Diwali, preceding the incident, Chandrabhagabai repeated to them about the harassment and insistence by her in-laws to meet the demand of Rs.25,000/= required for the flour mill. Thereafter, they persuaded her and assured to meet the demand within one year. 26. During the course of cross examination, the witness has stated that the ill-treatment at the hands of in-laws of the victim started three years after the marriage. He also stated that the accused ran flour mill for about 4 to 5 years after marriage of Chandrabhagabai. According to him, the said flour mill was not in 21 criapl-36.01 working condition. Pertinently, he stated that the police recorded his statement, but the very disclosure by Chandrabhagabai about demand of amount of Rs.25,000/= at the time of Diwali and assurance by witness and his parents to fulfill the same within one year, come under the omission. 27. Considering the testimony of PW-4 Ramchandra, it is apparent that there is vital omission, as mentioned hereinabove and he has made general statement in respect of alleged harassment and illtreatment to Chandrabhagabai, at the hands of her in-laws, and no specific role has