1 cra50.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 50 OF 2011 1 Kailash s/o Baburao Pandit, age 23 years, occ. Labour, r/o Sonpeth, Tq. Sonpeth, Dist. Parbhani, 2 Baburao s/o Pralhad Pandit, age 43 years, occ. & r/o as above, 3 Sanjeevani w/o Baburao Pandit, age 40 years, occ. Household, r/o as above ...Appellants VERSUS 1 The State of Maharashtra, 2 Dinkar Namdeo Ghodke, age major, occ. Labour, r/o Shepwadi, Tq. Ambajogai, District Beed. ...Respondents (No.2 Orig. Complainant) ..... Shri S.T.Ghute, advocate for the appellants Shri B.V.Wagh, A.P.P. for respondent no.1 Shri A.A.Jagatkar, advocate for respondent no.2 (original complainant) ..... 2 cra50.11 CORAM : SHRIHARI P. DAVARE, J. DATE OF RESERVING THE JUDGMENT : 06.06.2011 DATE OF PRONOUNCING THE JUDGMENT : 10.06.2011 J U D G M E N T : - 1 Challenge in this appeal is to the judgment and order, dated 19.1.2011, rendered by the learned Ad hoc Additional Sessions Judge, Gangakhed, thereby convicting appellant nos. 1 to 3 herein (original accused nos. 1 to 3) for the offences punishable under Sections 306, 498-A r/w 34 of the Indian Penal Code and sentencing them for the offence punishable under Section 306 of the Indian Penal Code to suffer rigorous imprisonment for six years and to pay fine of Rs.1,500/- by each, in default to suffer rigorous imprisonment for 60 days by each of them; and also sentencing them for the offence punishable under Section 498-A r/w Section 34 of the Indian Penal Code to suffer rigorous imprisonment for three years and to pay fine of Rs.500/- by each, in default to suffer rigorous imprisonment for 20 days by each of them, and also directing that out of the total fine amount of Rs.6,000/-, an amount of Rs.5,000/- be 3 cra50.11 paid to the complainant i.e. respondent no.2 herein i.e. father of the victim as compensation under Section 357 (1) of the Code of Criminal Procedure and further directing that all the afore said sentences to run concurrently. 2 The facts and the events leading to the present appeal are briefly stated herein below. Victim Bhagyashri married with appellant no.1 Kailash in December, 2008 and appellant no.2 Baburao is her father-in-law and appellant no.3 Sanjeevani is her mother-in-law. After the marriage, deceased Bhagyashri started residing with appellant nos. 1 to 3 at her matrimonial home. Initially, appellants herein treated victim Bhagyashri well for the period of one month. However, it is alleged that thereafter they started making demand of Rs.2,00,000/- from her for purchase of plot. According to the complainant, appellant no.1 used to demand money even on phone, as well as they used to insist the deceased to bring money from her parental house. However, respondent no.2 i.e. original complainant could not comply with the said demand due to his poor financial condition, and therefore, the accused even left deceased Bhagyashri to his house. At that time, it is alleged that victim Bhagyashri informed that the appellants used to drive her out of house and they used to insult her on account of her 4 cra50.11 black complexion. Victim Bhagyashri remained pregnant, but accused nos. 2 and 3 were saying that they were not able to maintain three persons including her child, and hence, they insisted upon her to abort the child. According to the complainant, he tried to persuade the appellants, but they subjected victim Bhagyashri to mental and physical torture. It is alleged that appellant no.1 used to consume liquor and assault victim Bhagyashri. It is also alleged that even the appellants used to starve victim Bhagyashri. It is further alleged that the harassment, illtreatment and mental and physical torture, to which victim Bhagyashri was subjected at the hands of the appellants, ultimately culminated into committal of suicide by deceased Bhagyashri by hanging herself by means of nylon rope on 4.7.2009. 3 Accordingly, a report about suicidal death of married woman, namely Bhagyashri was lodged on 4.7.2009 by PW6 A.P.I. Deepak Shinde at Sonpeth police station and in pursuance of the registration of A.D. No. 14 of 2009 (Exh.27), under Section 174 of the Code of Criminal Procedure, inquiry was initiated in the matter. Accordingly PW6 A.P.I. Deepak Shinde along with the staff went to the spot of the incident and prepared the spot panchanama (Exh.18) and seized one white colour nylon rope from the spot. PW5 Head Constable Kejgir prepared the inquest panchanama (Exh.16) of the 5 cra50.11 dead body of the victim, which was sent for postmortem examination and on the same day, PW7 Dr. Siddheshwar Halge performed the postmortem on the dead body of victim Bhagyashri and issued the provisional death certiicate (Exh.31) mentioning the provisional cause of death, as cardio respiratory failure due to asphyxia due to hanging and viscera was preserved for chemical analysis. 4 On the same day i.e. 4.7.2009, PW1 Dinkar Ghodke i.e. father of victim Bhagyashri lodged the complaint before the police personnel against the appellants, which was treated as the first information report (Exh.12) and offence was registered against the appellants under C.R. No. 45 of 2009 under Sections 306, 498-A r/w 34 of the Indian Penal Code. The complainant alleged in the said first information report that the appellants herein subjected his daughter, namely victim Bhagyashri to mental and physical torture and thereby abeted committal of suicide by her when she was pregnant. 5 During the course of investigation, PW6 A.P.I. Deepak Shinde arrested the appellants on 4.7.2009 and collected the memorandum of postmortem examination (Exh.30). Moreover, he recorded the statement of mother of deceased, namely PW2 Shakuntala, as well as he recorded the statements of other witnesses, residing at Shepwadi and also the witnesses at Patti 6 cra50.11 Wadgaon. Moreover, sample of viscera was sent to the office of Chemical Analyser for examination purpose and report thereof is produced at Exh.26. Accordingly, after completion of investigation, PW6 A.P.I. Deepak Shinde filed the charge sheet against the appellants. Since the offence under Section 306 of the Indian Penal Code was exclusively triable by the court of Sessions, the case was committed to the Court of Sessions, Gangakhed. Accordingly, learned Ad hoc Additional Sessions Judge, Gangakhed framed the charge (Exh.7) against the appellant under Sections 304, 498-A r/w 34 of the Indian Penal Code on 1.7.2010. However, the appellants pleaded not guilty to the charge and claimed to be tried. 6 To substantiate the charges levelled against the appellants, the prosecution examined in as much as 7 witnesses as mentioned below :- PW1 Dinkar Namdeo Ghodke – Complainant i.e. father of deceased Bhagyashri. PW2 Shakuntala Dinkar Ghodke – mother of victim. PW3 Rameshwar Baburao Shinde, panch to inquest panchanama (Exh.16). PW4 Ankush Rambhau Parve, panch to seizure panchanama (Exh.18). 7 cra50.11 PW5 Head Constable Subhash Ambaji Kejgir, who prepared inquest panchanama (Exh.16). PW6 A.P.I. Deepak Dnyanoba Shinde, investigating officer. PW7 Dr. Siddheshwar Shivraj Halge, Medical Officer, who conducted postmortem on dead body of victim Bhagyashri and proved postmortem notes at Exh.30. 7 The defence of the appellants was of total denial and appellant no.1 contended that deceased Bhagyashri and her father insisted upon him to leave home to go with her father to do job of Peon in a School, but he refused to the same. He stated that he was illiterate, and hence, victim Bhagyashri was not willing to reside with him. He also stated that he was not rich, so she wanted to reside with a rich person, and hence, she committed suicide under frustration and the witnesses being relatives have deposed against him falsely. However, the appellants neither examined themselves on oath, nor examined any defence witness. 8 Accordingly, after considering oral and documentary evidence, adduced and produced by the prosecution and also considering the rival submissions advanced by the learned counsel for the parties, the learned Ad hoc Additional Sessions Judge, Gangakhed convicted and sentenced the appellants for the offences 8 cra50.11 punishable under Section 306, 498-A r/w 34 of the Indian Penal Code, as afore stated. 9 Being aggrieved and dissatisfied by the said judgment and order of conviction, dated 9.1.2011, the appellants have preferred the present appeal challenging the same and prayed for quashment thereof. 10 In order to deal with the submissions advanced by the learned counsel for the parties effectively, it is necessary to advert to the material evidence, adduced and produced by the prosecution and in the said context, coming to the evidence of PW1 Dinkar Namdeo Ghodke i.e. the complainant, who is the father of deceased Bhagyashri, stated that marriage of his daughter, namely Bhagyashri was solemnized with accused no.1 Kailash and he gave Rs.50,000/0 dowry and articles necessary for marital life at the time of said marriage. After marriage, she started residing with her husband and in-laws together at Sonpeth. He also stated that they treated well to the victim for initial period of one month from the marriage and thereafter they started harassing her and they used to ask her to bring Rs.2,00,000/- from her parents for the purpose of purchasing plot. He also stated that his son-in-law i.e. accused no.1 gave threats on phone to him to bring Rs.2,00,000/- for the purchase of plot. 9 cra50.11 Thereupon PW1 Dinkar informed him that he was not able to give said amount, as his financial condition was poor. However, still accused used to insist upon his daughter and used to make demand of money from him on phone. He also stated that after lapse of about 2-3 months, appellant no.1 herein brought the deceased to the house of PW1 Dinkar and left her there. Thereupon, she informed PW1 Dinkar about harassment sustained by her at the hands of accused persons on account of payment of money. She also informed that accused used to assault and abuse her and they also used to drive her out of the house. She further informed that appellant no.1 used to consume liquor and used to drive her out of the house. She also informed that all the accused used to insult her saying that she was of dark complexion. 11 Moreover, Dinkar (PW 1) has also stated that his daughter was pregnant but accused used to say her to abort her child as they disliked her and they did not want child, as well as they had no capacity to maintain the child. He has further stated that his daughter had come to his house and resided for about 10-12 days. Thereafter his wife Shakuntala and father-in-law Kashinath went to Sonpeth to the house of accused and gave amount of Rs. 5,000/- and one nose ring (Nath) to the accused and requested the accused to give proper treatment to Bhagyashri and not to illtreat her. At that 10 cra50.11 time, Bhagyashri informed Kashinath, that accused were not behaving properly and they were harassing her. Hence, Dinkar's wife, namely, Shakuntala, and Kashinath persuaded the accused and returned back. He has also stated that on 4-7-2009, his wife Shankuntala had made a phone call to Bhagyashri and asked about whereabouts of Bhagyashri. But accused no.1 Kailash took the phone and demanded amount of Rs. 2,00,000/- from Shankuntala. But she expressed her inability to pay the said amount due to poor financial condition and her daughter Bhagyashri was weeping at that time. Accused no.1 Kailash then disconnected the said telephone call. He has further stated that at about 2 to 2.30 p.m., on the same day, maternal aunt of accused no.1 Kailash informed them on telephone, that their daughter hanged herself. Hence, Dinkar (PW 1) rushed to the hospital at Sonpeth and saw the dead body of his daughter. On inquiry, he came to know that his daughter had hanged herself by means of Nylon rope in the house of Madan Raut, maternal uncle of accused no.1 Kailash. Accordingly, he has stated that his daughter committed suicide on account of harassment by the accused. Hence, he lodged complaint at Sonpeth Police Station, on the same day, which is at Exhibit 12. 12 During cross examination, he has stated that he had given amount of Rs. 50,000/- towards dowry and thereafter marriage of 11 cra50.11 Bhagyashri was performed. He collected the said amount out of his income since he was doing job of cutting hair since last 26 years. He has also stated that he spent amount of about Rs. 1,50,000/- at the time of marriage of deceased Bhagyashri. He has further stated that accused nos.2 and 3 i.e. inlaws of deceased Bhagyashri used to do work in the field of others. He has admited that accused never compelled his daughter Bhagyashri to do labour work outside the house. He has also stated that after 2 days of marriage, his daughter had come back to his house. Dinkar (PW 1) has also admitted that after about 2 - 3 months after the marriage, accused had purchased a television set for entertainment of deceased Bhagyashri. He has also stated that the accused had knowledge about his economical condition. 13 As regards unlawful demands, Dinkar (PW 1) has stated that he was unable to specify when demand of Rs. 2,00,000/- was made by the accused. He has also stated that he did not give information to other relatives about harassment to deceased Bhagyashri at the hands of accused. Accused used to assault Bhagyashri and drive out of the house. He has further stated that after 3 and half months of marriage, his daughter remained pregnant. He had no information whether accused no.1 used to take deceased to doctor. He has also admitted that about 15 days prior to the 12 cra50.11 incident of death of his daughter, accused had called him and his family members to Sonpeth and offered clothes to them. 14 Considering the testimony of Dinkar (PW 1), it is apparent that the contention of Dinkar (PW 1), that his wife Shakuntala and his father-in-law Kashinath went to the house of accused, after his daughter Bhagyashri remained pregnant, and paid amount of Rs. 5,000/- and one nose ring (Nath) to the accused and requested the accused not to illtreat Bhagyashri, has gone unchallenged. Moreover, there is no cross examination in respect of further contention of Dinkar (PW 1), that on 4-7-2009, his wife Shakuntala made telephone call to Bhagyashri and asked her whereabouts. The said telephone call was attended by accused no.1 Kailash and he demanded amount of Rs. 2,00,000/- from her, however, Shakuntala expressed inability to pay the same due to poor financial condition and thereafter accused no.1 Kailash disconnected the phone call. 15 As regards alleged demand of unlawful amount, Dinkar (PW 1) has admitted in his cross examination, that he cannot give exact day when demand of Rs. 2,00,000/- was made by the accused. Accordingly, Dinkar (PW 1) could not give the particulars of the said alleged unlawful demand made by the accused to deceased Bhagyashri. Moreover, it has also come in the cross examination, 13 cra50.11 that deceased Bhagyashri was never compelled to do labour work outside the house and even accused had purchased a television set for her entertainment. Moreover, 15 days prior to the incident of death of Bhagyashri, accused had called Dinkar (PW 1) and his family members to Sonpeth and offered clothes to them. A suggestion was given to him in the cross examination, that accused never illtreated to deceased and never insisted upon her to terminate her pregnancy. But the same was denied by him. 16 Coming to the deposition of Shakuntala (PW 2), she has stated that deceased Bhagyashri was her daughter and her marriage was performed with accused no.1 Kailash and after marriage, she went to reside with her husband and inlaws at her matrimonial home. Initially, she was treated well for about one month and thereafter they started harassment to her. Accused used to tease her on account of black complexion and they were insisting her to bring Rs. 2,00,000/- from her parents for the purpose of purchasing plot. She has also stated that the accused used to assault deceased Bhagyashri and compel her to stay outside the door for whole night. She has also stated that accused used to consume liquor and used to assault her. She has also stated that whenever deceased Bhagyashri used to come to their house, she used to inform the same to her, as well as she used to inform them on telephone also. She has further stated 14 cra50.11 that her daughter remained pregnant. Accused nos.2 and 3 had told her, that accused no.1 Kailash was jobless and they were unable to maintain all of them. Thereafter, when accused no.1 Kailash brought deceased Bhagyashri to house of Shakuntala, they convinced accused no.1 not to illtreat deceased Bhagyashri. After the lapse of about 8 days, Bhagyashri was taken to her matrimonial home, but she informed Shakuntala (PW 2), after lapse of further 15 days, that accused were harassing her in severe manner. Hence, Shakuntala (PW 2) along with her father Kashinath went to the house of accused to Sonpeth and paid amount of Rs. 5,000/- and gave gold nose ring (Nath) to the accused. But accused nos.1 to 3 stated that less amount was brought and they demanded more money. Thereupon Shakuntala (PW 2) convinced the accused, stating that she was not in a position to give more money and requested not to harass deceased Bhagyashri. She has further stated that on 4-7-2009, she had a talk on telephone with her son-in-law i.e. accused no.1. Accused no.1 Kailash said that if they do not provide Rs. 2,00,000/- by evening time, see what would happen and thereafter accused no. 1 disconnected phone call before Shakuntala (PW 2) could talk further to him. She has further stated that thereafter at about 2.30 p.m., maternal aunt of accused no.1 gave information on telephone that their daughter had hanged herself. 15 cra50.11 17 During cross examination, Shakuntala (PW 2) has stated that deceased Bhagyashri was her elder daughter and in addition to deceased Bhagyashri, she had 3 daughters and one son. She has also stated that they paid amount of Rs. 50,000/- towards dowry as well as gave other household articles to the accused during marriage of deceased Bhagyashri. Moreover, 200 to 250 persons attended the said marriage. As regards the alleged unlawful demand, she was also unable to give exact date thereof and also stated that she did not inform other relatives about harassment at the hands of accused persons. She has also stated that after about 2 months after the marriage, her daughter remained pregnant. She has admitted that after 15 days prior to the incident, accused had offered clothes to all members and she has voluntarily stated that she had also offered clothes to them. A suggestion was given to her, that they did not give amount of Rs. 50,000/- and accused never illtreated or harassed the deceased and never compelled her to stay outside the house whole night. But the same was denied by her. It was also suggested to her, that on 4-7-2009, she did not have telephone call and talk with accused no.1 and accused no.1 did not warn to bring Rs. 2,00,000/-. But the same was denied by her. 18 It is apparent from the testimony of Shakuntala (PW 2), that deceased Bhagyashri was subjected to illtreatment by the 16 cra50.11 accused, more particularly, by accused no.1 due to non-fulfillment of unlawful demand of Rs. 2,00,000/- by her or by her relatives. Moreover, accused no.1 used to consume liquor and used to assault her and pertinently there is no cross examination in that respect. Moreover, the contention raised by Shakuntala (PW 2), that she along with her father Kashinath went to the house of accused at Sonpeth and gave gold ring (Nath) to the still, still the accused demanded more amount, has gone unchallenged in the cross examination. Pertinently, Shakuntala (PW 2) has stated in the cross examination itself, that amount of Rs. 50,000/- was given towards dowry at the time of marriage. Few suggestions were given in the cross examination, that amount of Rs. 50,000/- was not paid to the accused and accused never illtreated or harassed deceased Bhagyashri. But the same were denied by her. It is pertinent to note that on 4.7.2009 i.e. soon before the incident, PW2 Shakuntala made a phone call to her daughter, victim Bhagyashri, which was taken by accused no.1 and he made categorical demand of Rs. 2,00,000/- from PW2 Shakuntala on telephone till evening, and also threatened to face the consequence, if the said demand is not complied with, and thereafter disconnected the phone call, and hence, PW2 Shakuntala could not talk to the victim. It was suggested to her, that on 4-7-2009 she did not have any phone call and talk with accused no.1 and accused no.1 did not warn to bring Rs. 2,00,000/- 17 cra50.11 on telephone, but same was denied by her. 19 Coming to the testimony of Rameshwar Shinde (PW 3), Panch to the inquest panchanama, he has stated that Panchanama, Exhibit 16, was prepared in the house but his signatures were taken thereon outside the house. He has also stated that he did not observe any beating or injury on the dead body of Bhagyashri. Moreover, Ankush Parve (PW 4), Panch to seizure panchanama, has stated in his deposition that the rope was seized from one house at Kumbhar Galli and he had seen the rope in the Police Station for the first time and it was not seized from the house and when his signature was obtained on Panchanama, Exhibit 18, it was not written. Moreover, Subhash Kejgir (PW 5), Head Constable, has stated in his deposition that he prepared Inquest Panchanama, Exhibit 16, and except marks around neck, no other marks or injuries were seen on the dead body of deceased Bhagyashri. 20 The testimony of Deepak Shinde (PW 6), API, pertains to the procedural compliances in the investigation and the same does not take the prosecution case furthermore in constructive manner to connect the accused with the alleged crime. Moreover, he has admitted in the cross examination, that he did not record statement of witnesses residing in the vicinity of spot of incident as they were 18 cra50.11 not ready to give truth, as well as, he did not record statement of witnesses residing near the house of accused as they were not ready to cooperate. He has also stated in the cross examination, that he seized nylon rope from the spot but did not make inquiry about owner of the rope. He has also stated that he did not seize aluminum pot as referred in the panchanama. 21 That takes to the testimony of Siddheshwar Halge (PW 7), Medical Officer, who has stated that on 4-7-2009, he was working as Medical Officer at Primary Health Centre, Sonpeth and he conducted post mortem on the dead body of Bhagyashri. The post mortem notes are produced at Exhibit 30. He has also stated that in column no.17 thereof, he had mentioned ligature marks around the neck extending from anterior to posterior up to back side of neck. It was ante mortem injury. He had also observed fracture of hyoid. He has further stated that deceased was pregnant of 16 weeks and he had observed uterus gravid in the column of organ of generation. According to him, death was due to cardio respiratory failure due to hanging. He preserved viscera for chemical analysis and prepared certificate as to cause of death which is marked as Exhibit 31. He has further stated that in column no.17, fracture of hyoid bone are possible due to hanging by such kind of rope and it must be resulted in death. 19 cra50.11 22 During cross examination, Siddheshwar Halge (PW 7) has stated that according to Modi hanging is usually suicidal. He has denied that usually the hyoid bone is fractured in case of strangulation. As regards contents of stomach, he has stated that he observed fresh meal of Sabudana and Alu (Potato) which indicates