-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.180 OF 1990 APPEAL NO.180 OF 1990 APPEAL NO.180 OF 1990 1. Parvati Peera Atole 2. Machindra Parvati Atole 3. Smt.Namabai Parvati Atole ...Appellants vs. The State of Maharashtra ...Respondent Mr.Rahul Kate for the Appellants Mr.A.S.Shitole, A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : NOVEMBER 21 and 22,2006. : NOVEMBER 21 and 22,2006. : NOVEMBER 21 and 22,2006. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. This is a shocking case where a married woman died unnatural death within a span of six weeks from the date of her marriage. The Appellants are the accused. The first Appellant is the father-in-law of the deceased. The second Appellant is the husband of the deceased and the third Appellant is the mother in law of the deceased. By impugned Judgment and Order dated 19th march 1990 passed by the learned Additional Sessions Judge, Baramati, Pune, the Appellants have been convicted for offences punishable under sections 498-A read with section 34, section 306 read with section 34, 304-B read with section 34 of the Indian Penal Code (hereinafter referred to as the Penal Code) and sections 3 and 4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as the said Act of 1961). 2. The case of the prosecution can be summarised as under : (i) One Shri Rajaram Manikrao Nale, the father of the deceased -2- is the resident of village Karha-Wagaj, Taluka Baramati, District Pune. The name of the deceased was Venubai. One Gopinath had proposed the Accused No.2 as a match for deceased Venubai. On 6th December 1987, the Accused Nos.1 and 2, the maternal uncle of the accused No.2 and Gopinath came to the house of the complainant Rajaram. A meeting for settlement of the terms of the marriage was held at the residence of the complainant. The Accused No.1 at the first instance demanded a dowry of Rs.15,000/- and also made a demand that the complainant should bear the expenses of both the sides of the marriage ceremony. The complainant Rajaram did not agree for the figure of Rs.15,000/-. After discussion, it was agreed that Rajaram would pay a sum of Rs.10,000/- to the accused No.1 as dowry and he will also bear the marriage expenses. It was agreed that the marriage would be solemnised on 15th December 1987 in the village of the complainant. The agreed dowry amount was paid on or about 7th or 8th December 1987. The marriage was solemnised on 15th December 1987. The complainant also paid the expenditure incurred by the accused on the marriage ceremony. After the marriage ceremony, one Chandrabhagabai, the married sister of the complainant accompanied the deceased to her matrimonial home as her companion. After staying for two days at matrimonial home, the deceased Venubai along with said Chandrabhagabai came back to the Complainant’s home on 21st December 1987. The deceased told her father-the complainant that accused had demanded a -3- sum of Rs.5000/-, a golden ring and a cot with mattresses and had directed her to bring the articles while returning back to the matrimonial home. The deceased told him that if compliance with the demands was not made, the accused had told her that they would not maintain her. (ii) On 18th January 1988, the accused No.1 had visited the residence of the complainant for the purpose of taking back the deceased to her matrimonial home. On the instructions of the complainant, his sister Chandrabhagabai accompanied the deceased along with accused No.1 to the matrimonial home of the deceased. The Accused No.1 had brought a bullock Cart with him. While the deceased and Chandrabhagabai were leaving with accused No.1 by the bullock cart, the complainant handed over to them a cot along with mattresses and two pillows as well as some sweets. The complainant told his daughter that he would send Rs.5000/- and a golden ring in due course. On 21st January 1988, the complainant made an arrangement for Rs.5000/- as well as for purchase of a golden ring by selling his bullock. He came back at about 4.00 p.m. on 21st January 1988 to the village after selling his bullock. Two persons came to his house and informed him that his daughter Venubai has died due to drowning in the well. On receiving information, the complainant along with his relatives proceeded to the village where the accused were residing. He saw that the dead body of his daughter was kept on a platform -4- outside the house of the accused. After inquest panchanama was recorded, the dead body was shifted to Baramati Hospital for the purpose of post mortem. On 22nd January 1988, post mortem was performed in Silver Jubilee Hospital at Baramati. (iii) According to the case of the complainant, on 22nd January 1988, he visited to Baramati Police Station to file a complaint. However, the police did not take his complaint. Therefore, he filed an application on 23rd January 1988 with the Sub Inspector of Police, Baramati making allegations of commission of offence against the accused. On the same day, Shri Shirke, Police Sub Inspector attached to Baramati Police Station recorded a statement of the complainant. According to the case of the prosecution as the complainant was not satisfied with the investigation carried out by the police, he filed a complaint in writing on 19th February 1988 to the Minister of State, Department of Home, Government of Maharashtra. In the said complaint, a prayer was made for transfer of investigation to C.I.D. Crime Branch. Accordingly, the investigation was carried out by the authorities of C.I.D. Crime. 3. I have extensively heard the submissions of Shri Kate the learned Advocate for the Appellants. His main submission is that the evidence of the prosecution witnesses is not trustworthy and therefore the prosecution has not proved the -5- demand of dowry of Rs.10,000/- and the acceptance thereof by the accused No.1. He submitted that in any event, after the alleged payment of the said amount of Rs.10,000/-, there is absolutely no evidence on record to show that there was any demand for dowry made by any of the accused. He submitted that apart from the fact that the death of the deceased occurred due to accidental fall in the well while the deceased was trying to fetch water from the well, there is absolutely no evidence to show that after the marriage soon before her death Venubai was subjected to cruelty or harassment by the accused in connection with the demand for dowry. He submitted that thus none of the ingredients of offence under section 304-B were proved by the prosecution. He submitted that the evidence led by the prosecution witnesses as regards demands made by the Appellants-accused for a sum of Rs.5,000/-, a golden ring and a cot with mattresses is clearly an afterthought as the complainant has not come out with the case of such demands in the F.I.R. as well as in his police statement. He submitted that same is the case with other prosecution witnesses who have made improvement at the time of recording of the evidence by stating about aforesaid demands. He submitted that in any event, none of the witnesses deposed about any harassment or cruelty by the accused to the deceased after marriage. He submitted that the deceased stayed in her matrimonial home only for few days. There is absolutely no evidence to show any cruelty or harassment to the deceased. -6- He submitted that the conviction under section 304-B and section 498-A is uncalled for. Even the offence under section 306 is not at all proved. Without prejudice to the aforesaid submissions, he submitted that even assuming that the prosecution case is proved, the demand of dowry of Rs.10,000/- and the acceptance was only by the accused No.1 and therefore the conviction of the accused No.2 and 3 for the offences under section 3 of the said Act of 1961 was not at all established. 4. The learned Additional Public Prosecutor supported the impugned Judgment by pointing out that the demand for the sum of Rs.5,000/- along with a golden ring and a cot with mattresses was made immediately after marriage and the deceased was threatened that unless the said demands were complied with, she would not be allowed to stay with the Appellant No.2. He pointed out that after the deceased returned to her matrimonial home on 18th January 1988, accused persons harassed her for her failure to bring a sum of Rs.5000/- and a golden ring. He submitted that there is a clear evidence of harassment and mental cruelty. He submitted that the acts of cruelty and harassment have taken place immediately before the death of the deceased. He submitted that the circumstances clinchingly show that the death is not caused in the normal circumstances. He also placed reliance on various decisions of the Apex Court. -7- 5. With a view to appreciate the submissions made by the learned Advocate for the Appellants, it will be necessary to refer to the evidence of the prosecution witnesses. P.W.No.1 Rajaram Manikrao Nale is the father of the deceased. In the examination in chief, Rajaram described his relationship with other prosecution witnesses. He stated that he was working as a Typist in the office of Malegaon Sugar Factory since 1960 and he was holding a bank account with Poona District Central Bank at Malegaon. He stated that one Gopinath had proposed the accused No.2 as a match for his daughter Venubai. The said Gopinath was working as a teacher in a nearby village and the accused no.2 was also working as a teacher in the same school in which Gopinath was employed. The school was at village Sabalewadi which is at distance of 8 to 9 kilometres from village Gojubavi where the accused have been residing. On 6th December 1987, the accused Nos.1 and 2 , the maternal uncle of the accused No.2 and the said Gopinath visited the house of the complainant for a meeting for settlement of the terms of the marriage. He stated the names of the persons who were present in the said meeting along with him. According to his case, the accused No.1 demanded a dowry of Rs.15,000/-. He also demanded that the entire expenses of the marriage should be borne by the complainant. According to the complainant, he expressed that the demand of Rs.15,000/- was on the higher side. Ultimately, after discussion, the amount -8- of dowry was settled at Rs.10,000/- and P.W.1-Rajaram agreed to bear the marriage expenses of both the sides. The marriage was solemnised on 15th December 1987 in the village Karha-Wagaj i.e. the village of the complainant. According to the case of the complainant, he withdrew certain amount from his bank account for paying the dowry and for meeting the expenses of marriage ceremony. According to him the dowry amount was paid by him on 7th December 1987. 6. The deceased daughter of P.W.No.1 went to reside at her matrimonial home and the sister of P.W.No.1 accompanied the deceased as her companion to the matrimonial home. Both of them came back to the house of the complainant on 21st December 1987. P.W.No.4 Ashok and P.W.No.8 had gone to bring the deceased. They brought deceased and Chandrabhagabai in the house of the P.W.No.1. The deceased told the first informant that the accused Nos.1 to 3 demanded a sum of Rs.5,000/-, a golden ring and a cot with mattresses and they directed her to bring the said articles while returning to the matrimonial home. She informed the complainant that the accused have threatened her that they would not maintain her if the said articles were not brought by her along with the amount of Rs.5000/-. According to him, he purchased a cot and mattresses on 14th January 1988. He produced a proof of cash memo issued by the shop for the price of the cot. The cash memo was admitted in the evidence at Exh.18. He stated that -9- he purchased mattresses and two pillows from Azad Gadi Karkhana on the same day. For purchasing the said articles, the complainant paid the price for which a cash memo was issued. The said cash memo was admitted in evidence at Exh.19. 7. The P.W.No.1 further stated that on 18th January 1988, the accused No.1 visited his house for taking Venubai back to her matrimonial home. The Accused No.1 had brought a bullock cart. The Accused No.1 took with him the deceased-daughter of the P.W.No.1 and the said Chandrabhagabai. At that time the P.W.No.1 handed over the cot with mattresses and two pillows to them. He went to Baramati on 21st January 1988 for attending bazar. We went there for selling his bullocks. He wanted to sell the bullock for raising the amount of Rs.5000/- and for purchasing a golden ring. He stated that he sold a bullock to one Tatyaram Virkar from Village Saval at the price of Rs.2650/-. The receipt allegedly issued by the said Tatyaram was admitted in evidence and marked as Exh.20. He stated that on the same day, he returned to his village. At about 4.00 p.m., two persons from village Gojubavi came to his residence and informed him that Venubai died due to drowning in the well. Immediately thereafter, the P.W.No.1 and other persons went to village Gojubavi where the matrimonial home of the deceased was located. He noticed that the dead body of his daughter was kept on a platform outside the house of the -10- accused. He stated that as he was a patient of high blood pressure, he was asked not to wait there for a long time and to return back to his village. Accordingly, he went to village Karha Wagaj. He stated that post mortem was performed on 22nd January 1988 at Baramati. On 21st January 1988, he enquired with the accused No.2 regarding the cause of death. The Accused No.2 unconvincingly stated that the deceased died due to drowning in the well. He stated that though he had approached the Baramati Taluka Police station to lodge the complaint, the police did not take the complaint and therefore, he filed an Application on 23rd January 1988 to the Police Sub Inspector making allegation of commission of offence by the Appellants. He stated that his statement was recorded by the Police Sub Inspector on 23rd January 1988. He stated that as he was not satisfied with the investigation carried out by the police, he applied for transfer of the investigation and accordingly investigation was transferred. In the cross examination, he admitted that in his community there is a custom to offer a cot with mattresses both to the bride and bridegroom. He stated that he incurred heavy expenses on the marriage ceremony. 8. His attention was invited to his police statements dated 23rd January 1988 and 15th March 1988. He admitted that he had not mentioned the fact that accused demanded Rs.15,000/- as dowry and the matter was settled at Rs.10,000/-. He -11- admitted that he has not mentioned in the statement dated 15th March 1988 the fact that deceased informed that the accused persons were demanding Rs.5,000/- and a golden ring. He admitted that he had not stated in the said statement that the deceased had told him that the accused had threatened her that they would not maintain her if she failed to bring an amount of Rs.5,000/- and a golden ring. Various suggestions were put to the P.W.No.1. 9. P.W.No.2 Chandrabhagabai Baburao Ponkule is also an important witness. She is the sister of the complainant-Rajaram. It is stated that on the date of marriage, she accompanied the deceased to her matrimonial home as her companion . She stated that both of them were staying with the Appellants for about five days. She stated that the accused started asking Venubai as to why a cot along with mattresses and a golden ring and cash of Rs.5000/- was not given in marriage. It is alleged that the accused No.3 told the deceased that even a son of cobbler in the village had received a cot with mattresses in the marriage. She stated that all these talks took place in her presence. She stated that she accompanied the accused no.1 and the deceased to her matrimonial home on 18th January 1988. They carried a cot, mattresses and two pillows with one bed sheet in the same bullock cart. She stated that as per the custom of the community, the sweets carried with them were distributed -12- amongst various families. In the night on the very day, the accused No.2 asked the deceased as to why she did not bring a golden ring and a cash of Rs.5,000/-. The Accused No.2 also told the deceased that he did not like her and he had agreed for marriage only for receiving money. She specifically stated that she heard the said conversation in the house of the the accused. On the next day, she returned back to her house with her nephew Nivrutti Nale. After coming back, she informed the complainant-Rajaram and his wife to make an arrangement for a golden ring and a cash of Rs.5000/-. She informed Rajaram that the accused were demanding the same from the deceased. The P.W.No.2 was cross examined by the Advocate appearing for the Appellants. In the cross examination she stated that though she had told the police that she had informed her brother to make an arrangement for a golden ring and cash of Rs.5000/-, she cannot assign any reason why the police did not record the said facts in her statement. She also admitted that though she had told the police that on 25th January 1988 that accused No.2 had told the deceased Venubai that he did not like her and he had performed the marriage for the sake of money, she was unable to assign any reason as to why the police did not record the said aspect in her statement. She denied the suggestion that she was deposing falsely. -13- 10. P.W.NO.3 Gopichand Sarjerao Atole was working as a primary teacher in a school at Sabalewadi. He brought the proposal of the accused No.2 for Venubai. He stated that a meeting was held on 6th December 1987 and he attended the said meeting. He stated that the accused No.1 demanded a sum of Rs.15,000/- in cash and stated that marriage expenses shall be borne only by the P.W.No.1. He stated after the discussion between the persons who were present, P.W.No.1 Rajaram agreed to give a cash of Rs.10,000/- to the accused No.1 and he also agreed to bear the expenditure of both the sides. He stated that the marriage was solemnised on 15th December 1987. There is nothing relevant in his cross examination except the denials recorded at the instance of the Advocate for the Appellants. 11. P.W.No.4 Ashokrao Balasaheb Gadhve is the relative of P.W.No.1 Rajaram. He stated that Rajaram’s wife is his wife’s cousin. He stated that he attended the meeting held on 6th December 1987 for discussing the terms of marriage. He deposed about the demand of Rs.15,000/- as a dowry by the accused No.1 and a demand made by him that expenses on marriage by both the parties should be borne by the P.W.No.1 Rajaram. He stated that Rajaram expressed that a sum of Rs.15,000/- was on the higher side. He deposed that ultimately it was agreed that the P.W.No.1 Rajaram should pay Rs.10,000/- as dowry and he will bear the expenses of both the -14- sides on the marriage. He stated that after two-three days after the meeting, an amount of Rs.10,000/- was paid by the P.W.No.1 to the accused No.1. He stated that on 21st December 1987 he along with Nivrutti Nale went by two motor cycles to bring back Chandabhagabai-P.W.No.2 and Venubai. He stated that Venubai occupied the pillion seat on his motor cycle and Chandrabhagabai occupied the pillion seat on the motor cycle of Nivrutti. Venubai informed him on the way that the accused Nos.1 to 3 were demanding a cash of Rs.5000/- and a golden ring and a cot with mattresses. He stated that Venubai was asked to bring the same at the time of her return otherwise accused would not maintain her. On 21st January 1988, when he attended the Bazar at Baramati, he met P.W.No.1 Rajaram in the afternoon. P.W.No.1 informed him that for meeting the demand of Rs.5000/- he had sold one of his bullocks at the price of Rs.2650/- and he would make arrangement for raising rest of the amount. Thereafter, he described as to how information was received as to death of Venubai. 12. In the cross examination he admitted that he did not state before the police that Rajaram told him about the demand of Rs.5000/- by the accused persons when he met Rajaram at Baramati. He stated that when he along with Rajaram reached village Gojubavi at about 6.00 p.m. on 21st January 1988, many persons had assembled including Police Patil and Village Kotwal. Police had also came there. He stated that he -15- attended the funeral on next day. He stated that on 22nd January 1988, he along with P.W.No.1 Rajaram visited Baramati Taluka Police Station. 13. P.NO.5 Azij Mubarak Shaikh was examined to prove the purchase of mattresses and pillows by P.W.No.1 from Azad Gadi Karkhana. In his evidence he proved the receipt at Exh.19 issued to P.W.No.1 regarding the purchase of one mattress and two pillows. In the cross examination he stated that P.W.No.1 Rajaram was a new customer and he had not purchased any article from his shop earlier. 14. P.W.No.6 Abbasbhai Abdul Kadir the Proprietor of Maharashtra Machinery Stores, Baramati was examined to prove the purchase of iron cot by P.W.No.1 Rajaram. He proved the bill at Exh.18 as well as Marathi translation of the bill which was in Gujrati language. In the cross examination he admitted that the bill at Exh.18 does not carry any serial number and that he had not maintained a carbon copy of the said bill. He denied the suggestion that Rajaram had not purchased a cot from him. 15. P.W.No.7 Tatyaba Namdeo Virkar is the person who allegedly purchased one bullock on 21st January 1988 from the P.W.no.1 at the price of Rs.2650/-. He proved the receipt executed by P.W.No.1 Rajaram which is at Exh.20 in the -16- evidence. In the cross examination he admitted that he is dealing in business of purchase and sale of the bullocks. He proved the receipt at Exh.20 issued in respect of the said transaction. He admitted that a receipt is issued by the market committee in respect of each transaction. However, for the transaction with P.W.No.1, a receipt of the market committee was not obtained. He denied the suggestion that the receipt at Exh.20 must have prepared afterwards. 16. P.W.No.8 Nivrutti Nale stated that Venubai was his cousin. He stated that on 21st December 1987 he had gone along with P.W.No.4 Ashok by two motor cycles to bring back Venubai from her matrimonial home. He stated that Venubai occupied the pillion seat of the motor cycle driven by Ashok and Chandrabhagabai occupied the pillion seat of his motor cycle. He stated that on his arrival in the house of P.W.No.1 Rajaram, Venubai told all of them that her in-laws and husband were demanding a sum of Rs.5,000/- and a golden ring and a cot and mattresses. She also stated that if the said articles were not supplied, accused told her that they would not maintain her. He stated that on 19th January 1988 the accused No.1, Venubai and Chandrabhagabai went to the matrimonial home of the accused along with a cot and mattresses and two pillows provided by Rajaram. He stated that on 20th January 1988 he went to