1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO.63 OF 1998 Sow. Anshabai w/o Nagan Dhage age 45 years,occup. household Appellant/ori. r/o Bitnal, District Nanded. accused No.1. versus The State of Maharashtra, through Public Prosecutor, High Court, Aurangabad. Respondent. ----- Smt. A.N. Ansari, Advocate, for the appellant. Shri K.M. Suryawanshi, A.P.P. for Respondent. ----- Coram : P.R.Borkar,J. Date : 05/01/2010. ORAL JUDGMENT 01. This is an appeal preferred by original accused No.1 being aggrieved by the judgment and order passed by the learned Joint District Judge and Additional Sessions Judge, Nanded, in Sessions Case No.121 of 1994 on 26.02.1998, whereby appellant and original accused No.2 Sow. Drupadabai w/o Uttam Kawle are convicted of the offences punishable under Section 498-A and 306 both read with Section 34 of Indian 2 Penal Code. Accused No.2, who was sister-in-law of the deceased Sulanbai, was released on probation of good behaviour on her executing a bond in the sum of Rs.3000/= for a period of two years, although found guilty of both the offences, whereas present appellant -accused No.1 is sentenced to suffer rigorous imprisonment for a period of two years and pay fine of Rs.1000/= for offence punishable under Section 498-A of IPC, and for offence punishable under Section 306 of IPC, she is sentenced to suffer rigorous imprisonment for a period of four years and to pay fine of Rs.1000/=. 02. Briefly stated, the case of the prosecution as unfolded in the complaint (Exh.38) lodged on 13.9.1993 by PW-1 Sopan Parasram Jogdand examined at Exh.37 is that 3-4 years prior to lodging of the complaint his sister Sulanbai had married Satwaji-the son of present appellant and brother of original accused No.2. Sopan has ten acres of land at village Hunda, Taluka Bhokar, District Nanded, where he resides jointly with his two brothers namely Keshav and Bajirao. It is further stated that Sulanbai was residing with her husband Satwaji with his parents and brother in joint family. About 1-1/2 months prior to 3 lodging of complaint, Sulanbai suffered abortion when she was pregnant for 2-3 months and, therefore, PW-1 Sopan went to the house of Satwaji at village Bitnal to meet her. He noticed that Sulanbai was unable to come out of bed due to weakness. At that time, both the accused told Sulanbai that if she wanted food and stay without working, she should bring Rs.5,000/= from her parents. They also abused her. PW-1 Sopan resided at the house of in-laws of his sister for two days and then brought her to his house at village Hunda where she told him that she was being harassed by her mother-in-law and sister-in-law. About eight days thereafter, Satwaji came to take away Sulanbai. He was requested by Sopan and others to persuade both the accused not to ill-treat Sulanbai and sent Sulanbai with Satwaji. 03. On 11.9.1993 at about 2.00 a.m. one Namdeo from village Bitnal came to the house of PW-1 Sopan and told him that Sulanbai consumed insecticide and that she was admitted in the Civil Hospital at Umari. Therefore, PW-1 Sopan along with his cousin Bhujang Jogdand (PW-2) went to the said hospital. Sulanbai told them that since she had come to her in-laws house with Satwaji, both accused had been ill-treating her 4 for not bringing Rs.5000/= and so she consumed insecticide which was in the house. She also told them that her husband and father-in-law had brought her in the hospital. On enquiry by PW-1 Sopan and PW-2 Bhujang, she told them that she consumed insecticide at about 5.00 p.m. on 10.9.1993. 04. On 12.9.1993 at about 3.00 p.m., doctors from Umari Civil Hospital referred Sulanbai to Civil Hospital, Nanded where she was admitted and during the course of treatment she died at about 5.00 p.m. on 12.9.1993. Thereafter, on 13.9.1993 complaint was lodged against both the accused with Police Chowki, Civil Hospital, Nanded on the basis of which crime No. 103 of 1993 was registered on 14.9.1993 for the offences punishable under Section 498-A and 304-B of the I.P.C. 05. The prosecution in all examined seven witnesses and relying upon their evidence, the order of conviction and sentence as stated above was passed which is under challenge in this appeal. 06. So far as death of Sulanbai by consuming poison is concerned, there is evidence of PW-6 Dr. 5 Shrikrishyna Ramchandra Bhalchandra examined at Exhibit 54. He performed post mortem on the dead body of Sulanbai and proved the p.m. notes at Exh. 55. Dr. Bhalchandra has stated that death of Sulanbai was due to poison viz. organo phosphorus insecticide, dimethoate. In cross examination, Dr. Bhalchandra denied that there could be accidental inhaling of rogor (insecticide) and that would cause death. Dr. Bhalchandra ha s specifically stated that in case of accidental inhaling of rogor it would affect the upper parts of the body such as trachia and that the other symtoms which he had noticed during post mortem would not be possible by accidental inhalation. So, the possibility of accidental death is ruled out. 07. So far as ill-treatment to the deceased Sulanbai is concerned, there is evidence of only two witnesses, namely, PW-1 complainant Sopan and PW-2 Bhujang who is cousin of PW-1 Sopan and deceased Sulanbai. 08. PW-1 Sopan in his evidence did not refer to his visit to the house of Sulanbai after her abortion and to the incident of both the accused abusing and taunting Sulanbai for not bringing Rs.5000/- from her 6 parents if she wanted food without work. However, PW-1 Sopan did state in his evidence that after marriage, Sulanbai was cohabiting with her husband Satwaji and both accused were persisting with her to bring balance amount of dowry from her parents. They were beating Sulanbai, by saying how she could enjoy in the house without bringing unpaid dowry amount. 09. PW-1 Sopan in his examination-in-chief stated that in the marriage, amount of Rs.20,000/= was settled as dowry and out of it, an amount of Rs. 15,000/= was paid and balance amount of Rs.5000/= was to be paid. It may be noted that there is nothing in the F.I.R. to show that the amount of Rs.20,000/= was settled as dowry and out of it, amount of Rs.15,000/= was paid and balance of Rs.5000/= had remained to be paid. If the FIR is read as it is, it only mentions that because Sulanbai was not working, both the accused were telling her to work, else bring Rs.5000/= from her parents if she wanted to take food without working. It does not appear that the amount of Rs. 5,000/= was the the unpaid amount of dowry allegedly settled at the time of the marriage. 7 10. PW-2 Bhujang Jogdand has a different story to tell. He stated that dowry settled in the marriage was of Rs.10,000/= and out of it, only Rs.5000/= was paid and balance Rs.5,000/= was to be paid. So, the evidence of these two witnesses raises a serious doubt about the demand of Rs.5,000/= as unpaid dowry. 11. PW-1 Sopan further stated in his evidence that Sulanbai was brought by him to his house when she told him that her mother-in-law and sister-in-law were torturing her on account of dowry amount. After some days she was sent back with her father-in-law. Immediately eight days thereafter, it was informed that she had consumed insecticide. So, the story is inconsistent, inasmuch as, according to PW-1 Sopan, due to weakness as a result of abortion, he had brought Sulanbai to his house and soon thereafter her husband Satwaji had come to take her back. At that time Satwaji was told to persuade both the accused to desist from ill-treating Sulanbai. So, again we have difference in the oral evidence and the complaint. As per evidence before the court, Satwaji had not come to take Sulanbai and therefore there was no occasion for PW-1 Sopan to tell Satwaji to persuade accused persons to treat Sulanbai properly. 8 12. Both PW-1 Sopan and PW-2 Bhujan have deposed that immediately after receipt of information about Sulanbai having consumed insecticide and admitted in the hospital, Umari, both went to the hospital where, according to PW-1 Sopan, Sulanbai told them that she was tortured by both the accused for non payment of remaining amount of Rs.5000/= towards dowry and, therefore, she consumed poison. As against that, PW-2 Bhujang stated that Sulanbai told him in the hospital that she was beaten by accused persons on account of non payment of balance dowry amount. PW-1 Sopan does not say anything about beating by accused to Sulanbai as deposed to by PW-2 Bhujang. 13. In this matter, though it is the prosecution case that there was oral dying declarations by deceased Sulanbai to her brother Sopan and cousin Bhujang, it does not appear that any dying declaration was recorded either by the police or by any one else. Even no history, which is generally recorded by the doctors, is brought before the court. So, there is only oral evidence of PW-1 Sopan and PW-2 Bhujang to prove the alleged ill-treatment. 9 14. In the cross examination of PW-1 Sopan, it is stated at the beginning of paragraph No. 3 that accused No. 2 Drupadabai was married and was residing with her husband and two children at Yelgaon. Witness Sopan thereafter changed and stated in further part of paragraph 3 that accused No.2 was residing with her parents at Bitnal. It is, therefore, doubtful whether accused No.2 was really residing with her parents and therefore the story of accused No.2 ill-treating Sulanbai is doubtful. As per evidence of PW-1, Sulanbai was alive for one day in Civil Hospital. Sulanbai consumed insecticide on 10.9.1993 at about 5.00 p.m. Initially she was admitted in the Govt.Hospital, Umari and then was shifted to the Civil Hospital at Nanded at about 3.00 p.m. on 12.9.1993 and at 5.00 p.m. she died. It is not that the police had not visited the Govt.Hospital at Umari. PW-2 Bhujang admitted in cross examination, paragraph 2, that in the hospital police came and they were told by him and Sopan that Sulanbai had consumed insecticide due to ill-treatment at her matrimonial house. PW-1 Sopan gave complaint and statement of PW-2 Bhujang was recorded by police in the hospital. So, the question arises why statement of Sulanbai was not recorded in the hospital at Umrai and no explanation is coming 10 forward for the same. PW-2 Bhujang specifically admitted that Sumanbai was alive when his statement was recorded in the hospital at Umari. Omissions is brought on record in the evidence of both witnesses that they did not state before the police that particular amount was settled as dowry amount in the marriage and only part of it was paid and some amount remained to be paid. So, the said evidence regarding dowry amount is nothing but improvement over the police statements. No doubt, in cross examination, PW-1 Sopan while denying the suggestion that there was no ill-treatment to Sulanbai by accused, had volunteered that in his presence, Sulanbai was given kicks by mother-in-law. 15. In this case, there is no evidence available on record other than that of the two witnesses, namely, PW-1 Sopan and PW-2 Bhujang on the point of ill-treatment. PW-1 Sopan admitted that since his parents were not alive, he was taking all cares of his sister Sulanbai and giving fatherly treatment to her. Possibility of filing compliant due to bereavement on account of sudden death of sister, will have to be borne in mind. In this context on the point of psychology of relatives of victim, a reference to the 11 observations in the case of Sharad Birdhichand Sarda vs. State of Maha.AIR 1984 SC 1622 may be made. In para.48 of the said case,it has been observed:- "48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statement are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with great care and caution. Even if the witnesses were speaking a part of the truth, or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it. " 16. Therefore, considering the totality of the circumstances, in my opinion, evidence of PW-1 Sopan and PW-2 Bhujang is not sufficient to base conviction for offences under Section 498-A I.P.C. and under Section 306 of I.P.C.and the appellant is entitled to 12 benefit of doubt. 17. In the result, the appeal is allowed. The judgment and order of conviction and sentence passed by the learned Joint District Judge and Additional Sessions Judge, Nanded, in Sessions Case No.121 of 1994 on 26.02.1998, is hereby set aside. The bail bond of the appellant-accused stands cancelled. Fine amount, if deposited, be refunded to the appellant. pnd/criapl63.98 (P.R.BORKAR, J.)