1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.249 OF 1997. 1. Kachru Maruti Jawale, Age 61 years, Occ.Pensioner, 2. Yamunabai Kachru Jawale, Age 55 years, Occ.Household, 3. Anil alias Dinkar Kachru Jawale, Age 25 years, Occ. Student. All R/o Bhimnagar, Patoda, Taluka Patoda, Dist.Beed. ... Appellants. Versus The State of Maharashtra ... Respondent. ... Mr.S.G.Chapalgaonkar, advocate for the appellants. Mrs.R.D. Reddy, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 03.08.2009. ORAL JUDGMENT 1. Challenge in this appeal is to judgment rendered by learned Additional Sessions Judge, 2 Beed, in Sessions Case No.121/1995, whereby, the appellants have been convicted for offences punishable U/s 498-A read with Section 34 of the I.P.C. and sentenced to suffer rigorous imprisonment for one (1) year and to pay fine of Rs.200/- (Rupees two hundred), in default to suffer rigorous imprisonment for three (3) months. 2. It is an admitted fact that marriage of appellant No.3 Anil @ Diwakar and deceased Kantabai, was performed on 24.6.1994. The appellant Nos.1 and 2 are his parents. They use to reside together under one roof in Krantinagar locality at Patoda, which is a small Taluka place. The appellant No.l was working as a School Teacher. The appellant No.3 was unemployed at the relevant time. The fact that Kantabai died as a result of drowning in the well situated in the agricultural land of the appellants is also not in dispute. She had gone to fetch water of the well in the early morning of 12.4.1995. The prosecution case before the Sessions Court was that she had committed suicide by jumping in the 3 well. The defence of the appellants was that it was a case of accident because she had slipped her legs while drawing water of the well and thus accidentally fell in the well. It is not necessary, however, to examine whether she died suicidal death or it was a case of accidental death. For, it is explicit that the appellants were not found guilty for offence U/s 304-B of the I.P.C. because the evidence pertaining to dowry demand was found scanty and untrustworthy nor they have been convicted for offence U/s 306 of the I.P.C. 3. Briefly stated, the prosecution case, as unfolded before the Sessions Court, is that the appellants were demanding amount of Rs. 10,000/- (Rupees ten thousand) from deceased Kantabai in order to secure employment for the appellant No.3. They were also demanding remaining amount of Rs.1,000/- (Rupees one thousand) towards part of the unpaid dowry. They use to harass and ill-treat her due to non fulfillment of such unlawful demands. They troubled her. The cumulative effect of such 4 harassment was that she ended her life by plunging herself in the farm well. Brother of deceased Kantabai approached the Police Station in the same evening and gave report about the incident. He narrated that Kantabai was subjected to matrimonial cruelty and hence, committed the suicide for which the appellants were responsible. 4. The appellants were tried before the learned Additional Sessions Judge, on charges framed below Exh.9. The appellants denied truth into the charges. It was categorically denied that the deceased was subjected to matrimonial cruelty. The appellants explained that deceased Kantabai was never harassed by either of them nor there was any demand for dowry. They submitted that deceased Kantabai as well as her husband i.e. the appellant No.3 were taking education during the relevant period. 5. At the trial, the prosecution examined in all ten (10) witnesses in support of its case. The learned Additional Sessions Judge held that 5 the offence of matrimonial cruelty punishable U/s 498-A read with Section 34 of the I.P.C. was duly proved against the appellants. The learned Sessions Judge, acquitted the appellants, however, for the offence punishable U/s 304-B of the I.P.C. There is no discussion about abetment of the suicide by the appellants nor there was any such charge levelled against them. 6. Heard learned counsel for the appellants and learned A.P.P. 7. The material points for determination are : "(i) Whether in the facts and circumstances of the present case, it is proved that deceased Kantabai was subjected to matrimonial cruelty by the appellants or any of them in the matrimonial home between 24.6.1994 till 12.4.1995 by their willful conduct which was such that she was likely to commit suicide or to cause 6 grievous injury to her person or that it was on account of non-fulfillment of unlawful demand put forth by them.? (ii) Whether it is proved that the appellants shared common intention in giving of cruel treatment to deceased Kantabai during the period of her consortium with them.?" 7A. The versions of P.W.1 Paru and P.W.2 Dattu are of formal character. They corroborate the inquest panchanama (Exh.18) and the seizure panchanama (Exh.20). The spot panchanama (Exh. 22) is corroborated by P.W.3 Ranjit. His version reveals that the well in question is situated in the agricultural land of the appellants. The water level was of about 7 to 8 fts. and the distance between water level and the ground was of 10/12 fts. The well was dilapidated to some extent. It was possible to climb down in the well from eastern,western and southern side. It is admitted by P.W. Ranjit that if proper precaution was not taken, a person was likely to 7 fall down in the well. The topography of the well reveals that it is situated on southern side of the land on edge of a water tank. There was water bucket, a utensil and a pair of chappals by side of the well. The recitals of the spot panchanama (Exh.22) would show that Chappals were apparently removed by the deceased while going towards the well. Needless to say, the deceased must have gone towards the well for fetching drinking water in that morning. There is no eye witness account to definitely say that she committed suicide. The medical evidence also does not show that the death was of suicidal nature. 8. Coming to the evidence tendered by the prosecution in relation to the alleged matrimonial cruelty, it may be stated at the outset, that the prosecution did not examine anyone from the neighbourhood of the appellants. It has come in the evidence of P.W. 4 Yadav that his relatives viz. Dashrath Kachru Jawale and others are residing at Patoda. Those persons are sons of his paternal aunt. They are the co- 8 villagers of the appellants. It is probable that they were having knowledge about the manner in which deceased Kantabai was being maintained by the appellants in the matrimonial home. Neither of them came forward to spell out the nature of any harassment, ill-treatment or cruelty meted out to deceased Kantabai. On this score, there are testimonies of P.W.4 Yadav, P.W.5 Tulshiram, P.W.7 Janu and P.W.8 Manna Pathan. Out of these witnesses, first three are inter-related to each other. However, P.W.8 Manna is the only independent witness. The learned Sessions Judge has given much importance to the testimony of P.W.8 Manna on the ground that he is an independent witness and has no reason to speak lie. His testimony purports to show that in 1995, he was employed as a cleaner on a tempo vehicle. He narrated that somewhere about 2/3 moths prior to the death of Kantabai, he was returning in the tempo vehicle at about 5 p.m. from Naigaon. He noticed that Kantabai was standing by side of the road and had signalled to stop the tempo. He deposed that on inquiry she narrated to him that she was proceeding to 9 village Naigaon because there was a quarrel between herself and her mother-in-law in the morning time. She further told him that the appellants were harassing her for money and that she was driven out of their house. He gave lift to her. He admits that he was not on visiting terms to P.W. 4 Yadav. He further admits that his Police statement was recorded after about 34 days of the incident. He admits that in his Police statement there is omission regarding information given by deceased Kantabai that due to quarrel with the mother-in-law, she was driven out of the house by the appellant. If it is accepted that P.W. Manna was not on visiting terms with the family members of the parents of deceased Kantabai, then it goes without saying that she had no reason to repose confidence in him to disclose about the alleged cruel treatment meted out to her by the appellants. Secondly, there is a glaring material omission in his Police statement about the reason given by Kantabai to leave the house of the appellants. Thirdly, his police statement was recorded at belated stage after about 34 days of the incident. Fourthly, 10 the so-called incident had taken place before about 2/3 months prior to her death. Obviously, that incident of her going towards village Naigaon in the said evening could not have any proximate relation with the incident of her death. The version of P.W.Manna does not indicate any specific instances of harassment or ill-treatment meted out to deceased Kantabai by the appellants. 9. Coming to the version of P.W.Yadav, it may be gathered that after about 1-1/2 months of the marriage, Kantabai was brought to his house on eve of Nagpanchami festival. He states that he had gone to house of the appellants during sowing season for sowing Jawar. He stayed in the farm house of the appellants. He had noticed that the appellants were harassing Kantabai in connection with the remaining amount of dowry. On inquiry she narrated to him that they were demanding Rs.10,000/- (Rupees ten thousand) to secure employment for the appellant N.3 and remaining amount of Rs.1,000/- as unpaid dowry. He assured the appellants that he would pay the 11 amount after his return from sugarcane factory, where he was expected to go during sugarcane crushing season which was ahead. According to him, after about 8/10 days of such incident, he had gone to attend work at Panchganga Sugar Factory and remained there for about 5 months. He received message about death of Kantabai while he was in the premises of Panchganga Sugar Factory at Kolhapur. His cross-examination reveals that deceased Kantabai was educated upto matriculation. He admits that the original accused No.4 is his relative and he being common relative of his family and the appellant, the marriage was settled with his intervention as a middleman. He admits that the appellant No.1 had visited his house to take back Kantabai after the Nagpanchami festival. He admits further that she returned happily to the house of the appellants at that time. Thus, for about 2/3 months after the marriage all was well. What went wrong afterwards is not clearly established by the prosecution. The mere vague statement of P.W.Yadav that he noticed harassment of Kantabai during period of three (3) days stay in the farm 12 house is rather insufficient. He did not give specific instances of the ill-treatment or harassment meted out to decease Kantabai by the appellant. He admits that he did not tell anything about his conversion with the original accused No.4 Tulshiram to his son after returning to village Naigaon. 10. The version of P.W.5 Tulshiram purports to show that amount of Rs.1,000/- (Rupees one thousand) was unpaid part of the dowry amount settled in the marriage. He states that Kantabai resided happily with the appellants for about 4/5 months after the marriage. According to him, thereafter she was subjected to harassment by the appellants on acco9unt of non-payment of remaining amount of dowry. He narrated that about 1 - 1/2 months prior to the incident Kantabai was driven out of the matrimonial home by the appellants. He further narrated that she was given lift in the tempo vehicle of P.W. Manna Pathan. His version purports to show that in the same night, the appellant No.3 visited his house in a jeep vehicle and picked Kantabai while she 13 was in slumber. The appellant No.3 took her with him. It is pertinent to note that P.W. Tulshiram was a student at the relevant time and was aged about 19/20 years old. He states that after Nagpanchami festival, he reached her to the house of the appellant. As against this, P.W. Yadav, categorically states that the appellant No.1 had come to his house to fetch Kantabai after Nagpanchami festival. The single instance of visit of the appellant No.3 to house of P.W. Tulshiram in the night time and giving of a kick to Kantabai is not corroporated by any independent witness. It is explicit from cross- examination of P.W.Tulshiram that after the funeral on dead body of Kantabai, all the relatives sat together It is probable that they deliberated the issue regarding her untimely death. The FIR could be the out-come of such a meeting. He states that he scribed the complaint and handed it over to the Police. The recitals of the FIR (Exh.25) do not show that in the night time, the appellant No.3 visited his house and kicked Kantabai. The incident about giving of kick blow on person of Kantabai in the relevant 14 night is not corroborated by P.W.7 Janu, who is maternal uncle of P.W.Tulshiram and deceased Kantabai. His version reveals that after about one month of the visit of P.W. Yadav to the house of the appellant, Kantabai came to Naigaon and on inquiry, she narrated to him that if remaining amount of Rs.1,000/- (Rupees one thousand) towards dowry and Rs.10,000/- (Rupees ten thousand) for employment of the appellant No.3 would be given then there will be no harassment to her. His version shows that on next day, the appellant No.3 visited his house and asked Kantabai to accompany him. He admits that after Nagpanchami, the appellant No.1 had taken away deceased Kantabai with him. He states that thereafter she had not visited house of her parents. He states that his statement was not recorded by the Police during the investigation. It is pertinent to note that P.W. Tulshiram admits unequivocally that his maternal uncle is a Police Patil and was present at Patoda, when death of Kantabai was reported to them. It transpires that with the help of the Police Patil, as a result of deliberations amongst the 15 relatives, the FIR was drafted and submitted to the concerned Police Station. 11. Considering the foregoing reasons, I have no hesitation in holding that the so-called matrimonial cruelty is not spelt out with specific instances nor there is suffcient evidence to infer that the appellant intended to drive deceased Kantabai to commit the suicide. In the absence of reliable and proper evidence, they could not be convicted of the charge for offence U/s 498-A of the I.P.C. In this view of the matter, benefit of reasonable doubt must be extended to them. 12. In the result, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The appellants are acquitted for the offence punishable U/s 498-A read with Section 34 of the I.P.C. Their bail bonds be deemed as cancelled. Fine amount, if paid/recovered, be refunded to the appellants.The remaining part of the order regarding disposal of 16 the property articles is maintained. (V.R.KINGAONKAR,J.) asp/office/Crappeal24997