1 cria61-98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO.61 OF 1998 1] Sunil S/o Bhairuba Thorat [Appellant No.1 has expired,hence Appeal abated against Appellant No.1 as as per Court’s order dated 6/4/2011] 2] Tejabai W/o Bhairuba Thorat Age 47 years, R/o Dhanori, Tq. Omerga Dist.Osmanabad. .. APPELLANT Vs 1] The State of Maha. through Maruti Shrirang Hirave [R/o Murum, Tq. Omerga, Dist. Osmanabad] [Copy served on A.P.P. High Court of Bombay Bench at Aurangabad .. RESPONDENT ... Shri Abhay Rathod,Adv. for applicant. Shri G.R.Ingole,APP for R-State. ... CORAM : T.V.NALAWADE,J. DATE : 04/07/2011 ORAL JUDGMENT: 1] This appeal is filed against the judgment and order of Sessions Case No.155/95 decided by Sessions Judge, Osmanabad. By 2 cria61-98 decision dated 4/2/98, the Sessions Judge has convicted and sentenced appellant no.2 for offence punishable under Section 498-A r.w. 34 of I.P.C. Appellant no.1 husband of deceased died during pendency of the proceedings and by order dated 6/4/11, appeal in respect of appellant no.1 is already abated. In short, the facts leading to institution of the appeal can be given as follows : 2] Deceased Usha was daughter of complainant. Usha was given in marriage to appellant no.1 Sunil on 15/6/94. Usha died due to drowning in a well on 27/4/95. It is the case of complainant that he had given dowry of Rs.1500/- in the marriage when he had agreed to give Rs.2551/-. It is contended that as the remaining amount of Rs. 1000/- was not given, there was ill-treatment to Usha from her husband and mother-in-law, appellant no.2. It is the case of complainant that Usha used to visit house of Zumbarbai, maternal aunt of Usha and she used to disclose about ill-treatment to Zumbarbai. It is contended that accused were giving beating to the deceased and they were starving her. They were also teasing her by saying that she was not able to do routine household work and she was not able to cook food. It is contended that they were giving threat to Usha that they would set her on fire. 3 cria61-98 3] About 3 weeks prior to the date of incident, the complainant had taken Usha to his house from Pune. It is the case of complainant that Usha disclosed about ill treatment to him on that occasion. From there, appellant no.1 Sunil had taken Usha back to Dhanori matrimonial house of Usha. Usha died on 27/4/95 and her father gave report on 29/4/95. 4] Crime at C.R.No.30/95 came to be registered in Lohara police station on the basis of the report. After completion of the investigation, charge sheet came to be filed by Court of J.M.F.C. Omerga and J.M.F.C. committed the case to Court of Sessions. Charge was framed for offences punishable under Section 306, 498-A and 34 of I.P.C. Prosecution examined complainant and 3 relatives of complainant. Two police officers were also examined. The appellant admitted most of the documents like inquest panchanama, spot panchanama, and post mortem report. The accused took defence of total denial. The trial Court has held that Usha died due to accidental fall in a well. Sentence of imprisonment and fine is given by trial Court for offence punishable under Section 498-A r.w. 34 of I.P.C. In the appeal, this Court has heard both sides. 5] Before appreciating the evidence given by prosecution witnesses for offence punishable under Section 498-A of I.P.C., it needs to be kept in mind that the trial Court has acquitted the 4 cria61-98 appellant of the offence punishable under Section 306 of I.P.C. and it is held by the trial Court that Usha died accidental death. Almost all the evidence of prosecution witnesses is on the basis of disclosures allegedly made by Usha to them about the ill treatment given to her. For making the disclosures admissible in evidence under Section 32(1) of Indian Evidence Act, it was necessary for prosecution to prove that it was suicidal or homicidal death and the alleged conduct of the accused had direct relation to the cause of death. In the case reported as Indarpal V/s State of M.P. [2003 Supreme Court Cases (Cri) 1049, the Apex Court has made following observations : “Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstances of the transactions which resulted in her death.” The Apex Court has further observed as follows : 5 cria61-98 “By no stretch of imagination can the statements of the deceased contained in letters, where reference had been made by her regarding her life in the house of her in-laws, and the statements quoted by the witnesses, who had not spoken of anything which they had seen directly, be connected with any circumstance of the transaction which resulted in her death. Even that apart, the matter herein is concerned with an offence under Section 498-A I.P.C. disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.” 6] The evidence of Maruti [p.w.1] the complainant shows that he has tried to say that he had agreed to give dowry of Rs.2551/- and as he could given the amount of Rs.1551/- only at the time of marriage, there was ill treatment to Usha. The evidence of this witness shows that after the marriage, Sunil had taken Usha to Mumbai where they had continuously stayed for 3 to 4 months. There was cohabitation of around 10 months. The complainant has stated that Sunil returned 6 cria61-98 back to his native place Dhanori and there he started living with the deceased. The complainant was living in Pune at the relevant time and all the witnesses were living at different places and no witness from Dhanori is examined. The complainant has deposed that he learnt about the ill treatment first from Samtabai who used to go to the same market place where deceased used to go for weekly marketing. He has deposed that after learning about the ill treatment from Samtabai, he took the deceased to Pune and from there, Sunil took her back to Dhanori. He has deposed that Usha disclosed to him that there was ill treatment as remaining amount of Rs.1000/- was not given. It is already observed that Section 32(1) of Indian Evidence Act is of no use for prosecution in this case, as trial Court has held that it is accidental death. The evidence of Maruti [p.w.1] does not show that in his presence there was any incident from which he can say that there was ill treatment to Usha. 7] The evidence of Maruti shows that he does not own any landed property but the family of accused owns 9 acres of agricultural land and they also own a house. Though complainant has avoided to admit that the financial condition of the accused is comparatively sound, he has admitted that the expenses of the marriage were born by the accused. The complainant is working as a labour on a brick kiln. These admissions create doubt about the case of prosecution that there was agreement to pay dowry and there was ill treatment as 7 cria61-98 some amount of dowry was not given at the time of the marriage. He has admitted in clear terms in cross examination that he learnt about ill treatment from others. His evidence shows that Sunil had visited his house from Pune 3 weeks prior to the incident and at that time, he did not ask Sunil about the alleged ill treatment. This conduct of the complainant also creates doubt about his allegation that there was ill treatment to Usha. 8] As the complainant has taken name of his sister Samtabai, the evidence of Samtabai can be considered. Samtabai [p.w.4] has deposed that on one occasion, she had met Usha in the house of other relative and on that occasion, Usha had said that accused were demanding ornaments. Thus, altogether different version is given by Samtabai. The defence has brought on the record during her cross examination that she had stated before police that entire dowry amount of Rs.2551/- was given by complainant. In the evidence of investigating officer this contradiction is proved. Thus Samtabai has not given corroboration to the version of complainant. Further, in the report, Maruti had informed that Usha used to stay in the house of Zumbarbai after marriage on the occasion of festivals and so, not much weight can be given to the evidence of Samtabai. 9] Zumbarbai [p.w.3] has given evidence that Usha had stayed in the house of Malanbai and there she had met Usha and there she 8 cria61-98 learnt about ill treatment from Usha. Thus, probability is created that complainant had no knowledge as to where Usha was staying after the marriage. She was not visiting the house of her parents. Zumbarbai has given evidence that Usha disclosed that there was ill treatment to her from her husband and mother in law and they were saying that Usha was not able to do routine household work. Thus evidence of Zumbarbai does not show that Usha disclosed that accused were demanding Rs.1000/- remaining amount of dowry. This lady is resident of other place and not of Dhanori. Zumbarbai has deposed that when Tejabai had come to Mumbai, where this lady had met Usha, there was talk between this witness and Tejabai, appellant no.2. The witness has deposed that Tejabai had also stated that Usha was not able to do daily routine work but she had given promise to give good treatment to Usha. The evidence given by this lady also shows that she also does not know much about the relationship between Usha and the accused and about the stay of Usha after marriage at different places. 10] Hirkanbai [p.w.2] is grand mother of deceased and she has deposed that Usha stayed in her house at the time of Panchami festival, after marriage. She has deposed that Usha disclosed that accused no.2 had asked accused no.1 to cut nose and breast of Usha as dowry amount was not given. Her evidence shows that accused no.2 had stayed in her house for 1 day but she did not make enquiry 9 cria61-98 with accused no.2 Tejabai about alleged ill treatment. She deposed that she did not tell about this disclosure to anybody and she does not know whether Usha made similar disclosure to others. This creates doubt about evidence of this witness. In the evidence of investigating officer [p.w.6] it is proved that Hirkanbai had not stated before police that deceased had disclosed that accused no.2 had asked accused no.1 to cut nose and breast of Usha. Thus, everybody has tried to exaggerate the things. 11] The evidence of all the aforesaid witnesses shows that nobody had questioned either Sunil or his mother about the alleged ill treatment. On the other hand, the evidence shows that for first 3 to 4 months, this couple had stayed at Mumbai and after that, they had stayed at Dhanuri where no witness had occasion to go. Financial condition of the family of the accused is comparatively sound. Even statement was given before police by one witness that there was no dispute for dowry as dowry was already paid. The expenses of the marriage were born by family of the accused. All these circumstances show that the case of the prosecution is not at all probable in nature. The versions of the witnesses are not consistent with each other. These circumstances show that the trial Court has not properly appreciated the evidence. On the basis of such evidence conviction cannot be given for offence punishable under Section 498-A of I.P.C. It is already observed that so called disclosures cannot be accepted in 10 cria61-98 evidence under Section 32(1) of Indian Evidence Act. There is no direct evidence against the accused. Thus, Appeal deserves to be allowed and so the order. 12] The Appeal is allowed. Judgment and order of Sessions Case No.155/95 delivered by Sessions Judge, Osmanabad, convicting appellant no.2 Tejabai W/o Bhairuba Thorat stands set aside. This appellant stands acquitted of the offence punishable under Section 498-A r.w. 34 of I.P.C. Fine if any, deposited by the appellant is to be returned to her. [T.V.NALAWADE,J.] umg/cria61-98