1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 247 OF 1998 1. Prabhakar s/o Pandharinath Barbaile, age : 28 yrs., Occ.Agril., R/o Lamkana, Taluka Aurangabad 2. Mangalabai w/o Suresh Barbaile, age 31 yrs., Occ. Agril., r/o as above ..APPELLANTS (Ori. Accused) VERSUS * The State of Maharashtra ..RESPONDENT Through Police Station, (Complainant) Karmad Mr M.A. Jahagirdar, Advocate holding for Mr A.S. Bajaj for the appellants; Mr K.B. Chaudhari,A.P.P. for the respondent. CORAM : P.V. HARDAS, J. DATE : 28th September, 2010 ORAL JUDGMENT : The appellants, who stand convicted for offence punishable under section 498-A and 306 of the Indian Penal Code and sentenced to R.I. for one year and to each pay fine of Rs.500/-, in default of which to 2 undergo further R.I. for three months and R.I. for three years and to each pay fine of Rs.500/- in default of which to undergo further R.I. for three months, by the 4th Additional Sessions Judge, Aurangabad, by judgment dated 6.8.1998, in Sessions Case No.125 of 1997, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.7 Chatrabhuj Nagargoje, a Police Head Constable attached to the Karmad police station received a report from the Ghati Hospital to the effect that Rukhmanbai, wife of appellant no.1 died in Ghati Hospital. Accordingly P.W.7 Head Constable Nagargoje registered accidental death vide A.D. No.10/1997 under section 174 of the Code of Criminal Procedure and handed over the investigation of the A.D. to P.W.8 A.P.I. Raut. P.W.8 A.P.I. Raut was entrusted with the papers of the A.D. on 12.4.1997 and on the next day he drew the inquest panchnama of the dead body of Saguna @ Rukhmanbai in the presence of panchas at Exh. 9. Vide Exh.10 he seized the clothes of deceased in the presence of panchas. Thereafter in the presence of panchas he drew the scene of the offence panchnama at Exh.20 and seized a plastic container of poisonous substance. On 15.4.1997 viscera was referred to the Chemical Analyser for analysis along with the requisition at Exh.27. Statements of the neighbours came to be recorded and on 16.4.1997 he 3 registered an offence vide Crime No.51/1997 under section 498-A and 306 read with sec. 34 of the Indian Penal Code on the basis of complaint of P.W.1 Kadubai at Exh.12. On 16.4.1997 the accused came to be arrested. C.A. reports are at Exhs.17 and 18. Dead body of deceased Saguna was referred for post mortem examination and post mortem came to be conducted by P.W.4 Dr. Syed Hamid. He did not notice any injuries but noticed that the organs were congested and referred the viscera to Chemical Analyser. He, therefore, opined that deceased Saguna had died because of consumption of poisonous substance. The C.A. report discloses that the viscera contained organophospherous insecticide Monocrophos. The C.A. report is at Exh.16. Further to the completion of investigation a charge-sheet came to be filed against the appellants. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.3 framed charge against the appellants for offence punishable under section 498-A and 306 read with sec. 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined eight witnesses. 4. In order to effectively deal with the submissions advanced before me by the learned Counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses. 4 5. P.W.1 Kadubai, mother of deceased Saguna, states that Saguna was married to the appellant two years prior to the incident. She states that during Diwali Saguna had informed her that her husband and accused no.2, her sister-in-law, were having illicit relations. Thereafter Saguna had come to attend the 13th day religious ceremony after the death of her uncle and at that time had also disclosed to P.W.1 that her husband and his sister-in-law were having illicit relations and her husband used to assault her and accused no.2 used to harass her. Thereafter she learnt that Saguna had died and after the funeral she had lodged the report. In cross-examination she has admitted that after death of Saguna the police had come to her house after four days and thereafter she had lodged her report. She has admitted that immediately after the funeral she did not lodge the report at the police station. She has admitted that when she learnt about death of her daughter, she was annoyed with the accused and after returning home from the funeral she had discussed with her relatives and thereafter decided to lodge the report at the police station. She has further admitted as follows :- "At the time of my filing report, I felt that my daughter was dead and accused should be harassed so I have lodged my report to police." She has further admitted that her daughter had informed her orally about 5 the illicit relations and at both the times she was alone when her daughter had made that disclosure. In further cross-examination she has admitted that Saguna could not conceive and was taking treatment in the hospital at Aurangabad. An operation known as "curating" had also been performed and even thereafter Saguna could not conceive. She has admitted that Saguna was unhappy because of the aforesaid reason. 6. P.W.2 Lilabai, sister of deceased Saguna also deposes about Saguna informing her about the illicit relations between the accused and the disclosure which was made at the 13th day religious ceremony after the death of her uncle. In cross-examination she has stated that when Saguna had disclosed about the illicit relations between the accused she, her brother Ganpat, her uncle Gangaram, her cousin Prabhakar and her mother Kadubai were present. At the time of Diwali also when Saguna had made the disclosure same relatives were present. She has further admitted as true that Saguna used to be disappointed as she could not conceive even after two years of marriage. 7. P.W.3 Prabhu also deposes about Saguna disclosing about the illicit relations between the accused. In cross-examination he has admitted that Saguna had informed them about the relations between the accused when she had attended the 13th day religious ceremony after death of her uncle. He has admitted that prior to that he had no talk with Saguna. 6 8. P.W.6 Ganpat, brother of deceased Saguna states that he had taken his sister for treatment to the hospital of Dr. Bagadia and curating was performed by Dr. Bagadia. He also deposes about the disclosure made by Saguna about the illicit relations between the accused. In cross-examination he has admitted that Saguna had made the disclosure in the presence of her mother, sister and uncle. He has admitted to have stated to the police in his previous statement that Saguna had not made any disclosure to him. Omission has been duly proved that he had not stated to the police about any disclosure made by Saguna about the illicit relations between the accused. 9. Learned Counsel for the appellants has urged before me that no reliance whatsoever can be placed upon the testimony of the related witnesses in the light of the discrepancy on the material aspect in respect of the alleged disclosure made by Saguna. It is also urged before me that there is no evidence to hold that the accused had abetted commission of suicide. The learned A.P.P. has supported the judgment of the Trial Court. 10. P.W.1 Kadubai had categorically stated that when disclosure was made by Saguna she was alone with Saguna. P.W.2, P.W.3 and P.W.6 claim that the disclosure was made by Saguna in the presence of all. This is a material discrepancy and coupled with the admission of P.W. 1 Kadubai that she was annoyed with the accused on account of death of her daughter and had decided to lodge the report in order to harass the 7 accused, no reliance at all can be placed on the alleged disclosure of Saguna. Moreover, there is no evidence whatsoever that there were illicit relations between the accused. Even otherwise, the allegations about assault by the husband and harassment by accused no.2 are so vague that they do not amount to "cruelty" within the meaning of section 498-A of the Indian Penal Code. The appellants/accused, therefore, would be entitled to be given the benefit of doubt. If the illicit relations itself is not established, there is no question of the appellants abetting the commission of suicide. Moreover, illicit relations between the accused would not amount to abetting the commission of suicide by Saguna. While establishing the illicit relations it cannot be presumed that the accused intended that Saguna should commit suicide. Thus, there was no instigation or intentional aid to Saguna for committing suicide. It appears that since Saguna had not conceived even after two years of her marriage and despite the treatment which she was taking, Saguna was frustrated and, therefore, possibly in a frustration Saguna committed suicide, cannot be ruled out. In any event, the appellants would be entitled to be given the benefit of doubt. 11. Accordingly, this appeal is allowed and the conviction and sentence of the appellants is quashed and set aside and they are 8 acquitted of the offences with which they were charged and convicted. Their bail bonds stand cancelled. Fine, if paid by the appellants, be refunded to them. ( P.V.HARDAS, J.) amj/cria247.98