SSM 1 202.apeal.519.93.J IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 519 OF 1993 Tanaji Gulabarao Bhosale ] Age – 30 years, occ.-Service, ] Resident of Bombay ] .... Appellant (Org. Accused) Versus The State of Maharashtra. ] ....Respondent (Org. Complainant) ________ Mr. A. P. Mundargi, Sr. Counsel with Mr. Rupesh Nalawade for the appellant. Ms. Alpa T. Javeri, APP for the State. CORAM: R. C. CHAVAN, J. DATED : APRIL 25, 2011. ORAL JUDGMENT: 1. This appeal is directed against appellant's conviction for the offences punishable under Sections 498-A and 306 of the Indian Penal Code and sentence of R.I. of 1 year and 5 years with fine of Rs.500/- and Rs.1,000/- respectively on the two counts imposed by the 3 rd Additional Sessions Judge, Satara upon conclusion of Sessions Case No. 167 of 1991 before him. The learned Judge had acquitted appellant of offence punishable under SSM 2 202.apeal.519.93.J Section 304 B of the Indian Penal Code. The facts which are material for deciding this appeal are as under: 2. The appellant was married to the victim on 5 th June, 1990. The appellant was staying at Mumbai where he was employed as a conductor on the BEST Bus. He did not have any accommodation of his own either provided by the office or hired by him. He stayed at Mumbai with his brother. His parents resided at village Shirgaon. It is the prosecution case that the victim had not been taken to Mumbai for want of independent accommodation. The appellant was demanding a sum of Rs.25,000/- from the father of the victim in order to acquire some premises in Mumbai. The victim has conveyed this demand to her father and her father was supposed to have promised the victim that he would manage the requisite sum by the day of village fair at Shirgaon, which was to be held on 18 th May, 1991. Victim's father did not turn up on that day. The victim consumed insecticide known as Endosulphan. She was taken to Dr. Kaddu's SSM 3 202.apeal.519.93.J hospital on 19 th May, 1991 at about 6.45 p.m. She died while being treated by Dr. Kaddu. On the report by her brother, a complaint was registered and investigation was commenced. After performing inquest on the body, it was sent for postmortem examination. The postmortem examination revealed case of poisoning and report of analysis of viscera revealed Endosulphan in fatal quantity. In course of investigation, police performed necessary panchnamas, recorded statement of witnesses and on completion of investigation, sent chargesheet to the Court of Judicial Magistrate First Class, Wai, who committed the case to the Court of Sessions at Satara. 3. The learned Additional Sessions Judge to whom the case was made over, charged the appellant of the offences punishable under Sections 306, 304-B and 498A of the IPC. Since the accused pleaded not guilty, he was put on trial at which the prosecution examined in all seven witnesses in its attempt to bring home the guilt of the accused. Three witnesses were examined in SSM 4 202.apeal.519.93.J defence of the appellant, 4. After considering the prosecution and defence evidence in the light of defence of denial, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. Aggrieved thereby the appellant has preferred this appeal. 5. I have heard the learned Counsel for the appellant and the learned APP for the State. With the help of both the learned Counsel, I have gone through the evidence on record. P.W.4 -Dr. Kaddu had conducted post mortem examination on the dead body. The notes of the postmortem examination proved by him are at Exhibit-14. The report of Forensic Science Laboratory in respect of viscera at Exhibits 13 and 13A show presence of Endosuplhan in fatal quantity. P.W. 2-Hanmant Shinde is the panch at the spot panchanama. P. W.3- Shankar Genu Ithape is the brother of the victim who gave report which is at Exhibit-18. P.W.4-Dr. Kaddu had treated the victim and proved notes of his treatment. The victim died while being treated by Dr. Kaddu. P.W. 3-Shankar SSM 5 202.apeal.519.93.J -brother of victim and P. W.6- Genu Ithape, father of the victim speak about ill treatment given to the victim and the unlawful demands. P. W. 7- Mr. Chikhale conducted the investigation. 6. Girish Sabale D.W.1 is appellant's friend who states about the appellant's residence at Mumbai alongwith victim for some time. D. W.2 – Parvati appellant's sister in law who stays at Mumbai states that appellant had ample accommodation at her place at Mumbai. D. W.3-Shivaji appellant's another brother stayed at Shirgaon. 7. From the evidence of P.W.3-Shankar- brother of the victim and P.W.6 Genu Ithape -father of the victim as also F.I.R. at Exhibit-18 it is not clear as to whether the victim stayed with the appellant in Mumbai or she continued to stay with appellant's parents at Shirgaon. However, a suggestion made by the learned APP to the defence witnesses, shows that it is the prosecution case that victim never joined the appellant at Mumbai. Curiously, it is the appellant's case that the victim was with him in Mumbai for SSM 6 202.apeal.519.93.J some time. There are discrepancies as to whether the victim was in Mumbai from March, 1991 to May, 1991. But, it is clear from the evidence that the victim was not all along or continuously residing with the appellant at Mumbai. 8. The evidence of P.W.3-Shankar and P.W.6 Genu Ithape shows that in the 11 months of marriage, the victim had visited her parent's house on may occasions and seemed to have complained to her father about the ill treatment by her husband on account of non fulfilment of demand of Rs.25,000/-. It can be seen from the F.I.R. which is at Exhibit-18 that the victim had been promised that necessary arrangement would be made by the time of fair at Shirgaon. Though Shankar denied the suggestion that he was to attend Shirgaon fair, his father admitted that he had been asked by his daughter to attend the fair, but he did not attend the said fair and it is, thereafter, that the victim consumed poison. 9. The learned Counsel for the appellant submitted first that the conduct of the appellant in taking the victim immediately SSM 7 202.apeal.519.93.J for treatment to Dr. Kaddu's hospital would rule out any desire on the part of the appellant that the victim should commit suicide. The learned Counsel next submitted that there is no question, therefore, the applicant's case falling under Section 306 of the Penal Code for abetment to commit suicide. 10. He next submitted that the accommodation at Mumbai was sufficient and therefore there was no question of the applicant's making any demand from the victim that she should bring in a sum of Rs.25,000/- from her father. However, as rightly pointed out by the learned APP, the appellant did not have any accommodation of his own and therefore, it would be natural for the applicant to seek his own accommodation and therefore the probability, the appellant did demand of Rs.25,000/- from his father-in-law has not been ruled out. Even if it is taken for a while that the appellant was in need of Rs. 25,000/- and demanded it from his father-in-law, the learned Counsel for the appellant submitted that this could by no stretch of imagination amount to SSM 8 202.apeal.519.93.J any unlawful demand, and at worst it could be called an unwarranted solicitation for help. In any case, the learned Counsel for the appellant submitted that the possibility of the victim herself being frustrated because of separation with the husband for want of proper accommodation at Mumbai and having consumed poison on finding that her father, who had promised to come to the fair after arranging for money but did not turn up, cannot be ruled out. While the applicant undoubtedly had no business make any demand from his father-in-law but this does not imply that because there was a demand it was followed up by ill treatment or harassment, only because the victims brother and father have chosen to make such allegations after the unfortunate incident, when the victim was not staying with the applicant at Mumbai, and staying only intermittently, the question of applicant's harassment or ill treatment of the victim would not arise. In view this, the trial Judge should have considered this possibility of victim's own desire to end separation and SSM 9 202.apeal.519.93.J frustration on finding that the promised help by her father was not forthcoming and extended benefits of this possibility to the appellant. 11. In view of this, the appeal is allowed. Conviction of the appellant for the offences punishable under Sections 498-A and 306 of the Indian Penal Code and sentence of R.I. of 1 year and 5 year with fine of Rs.500/- and Rs. 1,000/- respectively is set aside. Appellant is acquitted of the said offence. (R. C. CHAVAN, J.)