1 cra82.01 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 82 OF 2001 Vasant s/o Bhagwat Patil, age 35 years, occ. Service, r/o Jalgaon, Tq. And Dist. Jalgaon ...Appellant (Original Accused No.1) VERSUS The State of Maharashtra ...Respondent ..... Shri S.M.Godsay, advocate holding for Shri U.B.Bondar, advocate for appellant (original accused no.1) Smt. Y.M.Kshirsagar, A.P.P. for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATE OF RESERVING THE JUDGMENT : 16.06.2011 DATE OF PRONOUNCING THE JUDGMENT : 22.06.2011 J U D G M E N T : - 1 Challenge in this appeal is to the conviction and sentence, inflicted upon the appellant (original accused no.1) by way of 2 cra82.01 judgment and order, dated 16.2.2001, rendered by the learned Additional 3 rd Additional Sessions Judge, Jalgaon, in Sessions Case No. 229 of 1995, thereby convicting the appellant for the offence punishable under Section 304B of the Indian Penal Code and sentencing him to undergo R.I. for 7 years and to pay fine of Rs. 500/-, in default to suffer R.I. for one month; and also convicting the appellant for the offence punishable under Section 306 of the Indian Penal Code and sentencing him to undergo R.I. for 5 years and to pay fine of Rs. 250/-, in default to suffer R.I. for 15 days; and further convicting the appellant for the offence punishable under Section 498-A of the Indian Penal Code and sentencing him to undergo R.I. for one year and to pay fine of Rs. 100/-, in default to suffer R.I. for eight days; and also further convicting the appellant for the offence punishable under Section 4 of the Dowry Prohibition Act and sentencing him to undergo R.I. for three months and to pay fine of Rs. 100/-, in default to suffer R.I. for eight days; and also directing that all the afore said substantive sentences imposed against the appellant (original accused no.1) to run concurrently. However, it appears that the other accused nos. 2 to 6 were acquitted of the said charges levelled against them. 2 The factual matrix of the prosecution case is as follows :- 3 cra82.01 The parties herein after are referred as per their original status as, “the complainant’ and ‘the accused’). One Mr. Keshav Senu Nehete i.e. the complainant and Prosecution Witness No.1, who is the brother of victim Sunanda, lodged the report (Exh.56) on 14.7.1995 at 2015 hours at M.I.D.C. Police station, Jalgaon, alleging that he and his brother Bhagwat were serving in Raymond Woolen Company and they had one sister, namely Sunanda. He stated that the marriage of his sister Sunanda with accused Vasant took place in May, 1994 as Gandharv Vivah and at that time, the complainant paid Rs.45,000/- and 50 grams gold to the accused. The appellant i.e. original accused no.1 was in the employment of Jain Pipe Company and used to reside at Ayodhya Nagar at Jalgaon. 3 Accused no.2 Bhagwat and accused no.3 Narmadabai are the parents of accused no.1 Vasant; whereas accused no.4 Pramila, Juvenile accused no.5 and accused no.6 Shridhar are the relatives of accused no.1. It is alleged that after the marriage, Sunanda went to reside at Jalgaon with accused no.1. However, accused nos. 1, 2 and 4 used to illtreat her on account of demand of Rs.10,000/- and Sunanda conveyed the same to the complainant. Hence, the complainant approached the accused and paid Rs. 4 cra82.01 10,000/- and requested not to illtreat his sister Sunanda. Thereafter again accused illtreated Sunanda and demanded more amount of Rs.8,000/- after about two months. Hence, brother of complainant, namely Bhagwat paid Rs.8,000/- to accused no.1 and inquired what he did about the earlier amount of Rs.10,000/- which was already paid to them. Thereupon, it was stated that the said amount was spent for plastering to the house and by further amount of Rs.8,000/- they were to complete the electric fitting. It is also alleged that after lapse of about one month, accused no.1 again insulted and taunted the victim. Moreover, they also instructed the complainant to go out of their house and asked him not to visit their house again. It is further alleged that the accused threatened that they have not provided 20 tolas gold as demanded and only provided 5 tolas gold and that they would burn Sunanda for not providing the gold as demanded. According to the complainant, at that time, Ramkrishna Dagadu Patil of Turkheda and Shridhar Vithu Sawadekar of Asoda arrived there and the complainant along with them went inside the house of the accused and tried to persuade his sister. It is alleged that at that time his sister i.e. victim Sunanda disclosed that accused nos. 2 to 4 used to instigate accused no.1 to assault and abuse her, and therefore, accused no.1 used to assault Sunanda. 4 It is further alleged that on 10.7.1995 also victim Sunanda 5 cra82.01 disclosed before the complainant about the illtreatment at the hands of the accused and unlawful demand of Rs.20,000/- by them for completing remaining construction work of their house. She also stated that if the said amount was not paid within two days, the accused would make her life miserable and it would be impossible for her to live more. Hence, the complainant attempted for mediation through mediators Madhukar Roopchand Choudhari, r/o Jalgaon and Prabhakar Mitharam Chirmade, r/o Asoda and persuaded accused no.1 and his parents and other accused and assured to pay Rs. 20,000/- and requested not to illtreat her sister Sunanda. Thereafter on 11.7.1995 the complainant sent his brother, namely Bhagwat to fetch her, but accused did not send her with him. It is further alleged that on 14.7.1995 at about 5.30 a.m., one Rajendra Sonu Bhangale i.e. brother-in-law of the complainant approached him and informed that the condition of his sister Sunanda was serious. Hence, they came to Jalgaon at the house of the accused and found that Sunanda was dead due to burning and there was smell of kerosene in the house of the accused, and hence, the complainant inquired with accused no.1 how she expired and thereupon he informed that at about 2.45 (mid night) Sunanda poured kerosene on her person and committed suicide. Accordingly, it is the case of the prosecution that since August, 1994 the accused used to illtreat and harass victim Sunanda for demand of cash amount, and therefore, she 6 cra82.01 committed suicide on 14.7.1995 at 2.45 a.m., and it is further alleged that the accused persons are liable for her death. 5 Pursuant to the said incident, A.D. No. 27 of 1995 was registered and thereafter PW1 Keshav i.e. the complainant lodged report Exh. 56 with M.I.D.C. Police station, Jalgaon against the accused and C.R. No. 131 of 1995 was registered against them for the offences punishable under Sections 306, 304B and 498-A r/w 34 of the Indian Penal Code and also under Sections 3, 4 and 7 of the Dowry Prohibition Act at M.I.D.C. Police Station, Jalgaon, and consequently, PW6, P.S.I. Bhagwat Patil carried out the investigation in the crime and prepared the spot panchanama and inquest panchanama at Exhs. 60 and 61 respectively, and thereafter dead body was sent for postmortem examination to the Civil Hospital, Jalgaon along with the letter Exh.67, as well as inquest form Exh.68 was also submitted for conducting postmortem examination. Accordingly, PW3 Dr. Kavita Sontakke performed the postmortem on the said dead body and found that victim Sunanda had sustained 100 per cent burns and said burns were noted in column no.17 of the postmortem notes, which are produced at Exh.63 and the cause of death was shock due to extensive burns (100%). 6 During the course of investigation, PW6 P.S.I. Bhagwat 7 cra82.01 arrested accused persons on 15.7.1995 and recorded the statements of witnesses and after receiving the postmortem notes and after completion of investigation, he filed charge sheet against the accused before the learned Judicial Magistrate, First Class, Jalgaon. However, as the case was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions, at Jalgaon. 7 Thereafter, charge (Exh.35) was framed against the accused persons, except juvenile accused no.5, for the offences punishable under Sections 304B, 306, 498A r/w 34 of the Indian Penal Code and also under Section 4 of the Dowry Prohibition Act r/w 34 of the Indian Penal Code on 5.8.1999. However, the accused persons pleaded not guilty and claimed to be tried. 8 To substantiate the case of the prosecution, the prosecution examined as many as 6 witnesses as mentioned below :- PW1 Keshav Senu Nehete, complainant - brother of victim Sunanda PW2 Arvind Gangaram Patil, Panch to the Spot Panchanama Exh.60 8 cra82.01 PW3 Dr. Kavita Satish Sontakke, who conducted postmortem and prepared postmortem notes Exh.63. PW4 Subhadrabai Senu Nehete, mother of victim PW5 Prabhakar Mitharam Chirmade, neighbour of complainant PW6 Retired P.S.I., Bhagwat Parshuram Patil, investigating officer. 9 Apart from the afore said oral evidence adduced by the prosecution, the prosecution also produced documentary evidence, such as, complaint Exh.63, spot panchanama Exh.60, inquest panchanama 61, postmortem notes Exh. 63, memo issued to the Civil Hospital, Jalgaon by the investigating officer Exh.67 and police report sent for postmortem examination Exh.68. 10 The defence of the accused persons was of total denial and they never illtreated Sunanda or demanded any dowry amount from her and Sunanda died by accidental death when she was heating cooked food after arrival of accused no.1 from his duty in the night due to explosion of stove. However, the accused neither examined themselves on oath nor examined any defence witness on their behalf. 11 After considering the oral and documentary evidence 9 cra82.01 adduced and produced by the prosecution, and also after considering rival submissions advanced by the learned counsel for the parties, learned Trial Judge acquitted accused nos. 2 to 6, except juvenile accused no.5, for all the charges levelled against them, but convicted and sentenced accused no.1 Vasant Bhagwat Patil for the offences as afore stated. Being aggrieved and dissatisfied by the impugned judgment and order of conviction and sentence, rendered by Trial Court against the accused no.1 i.e. appellant herein, he has preferred the present appeal challenging the same and prayed for quashment thereof. 12 In order to deal with the submissions advanced by the learned counsel for the parties effectively, it is necessary to advert to the material evidence adduced/produced by the prosecution and in the said context, coming to the deposition of complainant PW1, Keshav Senu Nehete i.e. brother of deceased, who has stated that Sunanda was his sister and she performed marriage with accused no.1 about 8 to 9 months prior to the date of incident. According to him, it was settled that marriage would be performed by giving dowry of Rs.45,000/- in cash and gold of 50 grams and marriage was to be performed by the complainant’s side by incurring expenditure therefor. Accordingly, marriage of accused no.1 and Sunanda was performed as Sulagna i.e. Gandharva form at Asoda and since 10 cra82.01 accused no.1 was in service in Jain Pipes, he used to reside at Ayodhya Nagar along with accused no. 2, his sister’s daughter Hemlata and his son from first wife. 13 PW1 Keshav further stated that initially his sister was treated well after marriage for about three months, but thereafter the accused persons illtreated victim Sunanda and accused nos. 1 and 2 started demanding Rs.10,000/- from her, as disclosed by Sunanda. Hence, PW1 Keshav paid Rs.10,000/- to accused nos. 1 and 2 in person. However, he stated that again after lapse of 2 to 2½ months illtreatment was started to Sunanda by the accused and they again demanded amount of Rs.10,000/- for house. Hence, he further stated that his brother Bhagwan paid an amount of Rs.8,000/- to the accused. However, he further stated that again after lapse of 2 and 2½ months, accused demanded amount of Rs.20,000/-, and threatened that if the amount is not paid by Sunanda, she will be murdered by accused persons. Moreover, he further stated that after marriage, he used to meet his sister at her house and Sunanda used to disclose before him that if the demanded amount was not paid to the accused, they would commit her murder. He further stated that the information about subjecting victim Sunanda to illtreatment was given to the grand-father of accused no.1, namely 11 cra82.01 Shridhar Vishnu. Moreover, he also called to accused no.1 to solve their problems on 12.7.1995. It is further alleged that on 12.7.1995 accused no.1 did not attend the meeting, but thereafter on 14.7.1995 his brother-in-law Rajendra Sonu Bhangale came to convey him at about 5.00 a.m. at Jalgaon, informing him that his sister was serious. Hence, PW1 Keshav stated that he himself, his mother and his brother went to the house of accused no.1 at Jalgaon and found that his sister Sunanda was lying in dead condition. On inquiry, the accused disclosed him that Sunanda committed suicide by setting herself on fire. Thereafter, Sunanda was taken to the Civil Hospital, Jalgaon. However, PW1 Keshav stated that at that time, they were threatened by one Ramkrishna Dagadu Patil that no report be lodged against his brother i.e. original accused no.1 Bhagwat and report be lodged only against accused no.1. However, PW1 complainant Keshav lodged report on 14.7.1995 against the accused persons contending that his sister Sunanda was illtreated by the accused persons and she died due to the said illtreatment caused by the accused persons. 14 During cross-examination conducted by accused nos. 1 to 3, PW1 Keshav admitted that the word, “dowry” is not mentioned in the report Exh. 56 and he could not assign any reason why the said word “dowry” was not mentioned therein. He also stated that lump 12 cra82.01 sum amount of Rs.45,000/- was paid by him in lieu of articles to be provided to the accused, with a view that her marital life should be smooth and also with love and affection. As regards the payment of amount of Rs.8,000/-, there appears to be omission. However, he categorically stated that again after the period of 2½ months, illtreatment started for the demand of Rs.20,000/-, but there is again omission in that respect in his report Exh. 56 and improvement in his testimony. He also stated that he made inquiry with the accused how the amount of Rs.18,000/-, which was paid by him, was used by them and thereupon the accused replied that the said amount was used for plastering and colouring. 15 As regards earlier marital life of Sunanda, he stated that her previous husband resided at Igatpuri and he is in service of some company. Moreover, as regards earlier marriage of accused no.1, he stated that he does not know where first wife of accused no.1 resided, but he knew that accused no.1 was married prior to his marriage with Sunanda and he was having a son from his first wife. He admitted that regular ceremonies as per Vedic procedure were not followed at the time of marriage with accused no.1. He further stated that marriage of Sunanda with accused no.1 was also not performed by registered procedure. 13 cra82.01 16 As regards the death of Sunanda, he stated that when he saw the dead body of Sunanda, only her legs were found burnt, but other part of her body was not found in burnt condition and he stated that at the time of lodging the report, i.e. on the second day of the incident, he stated before the police that Sunanda was murdered. However, police did not mention in the report that murder of Sunanda was committed. He further stated that the fact of committal of suicide by Sunanda, mentioned in the report Exh.56, is incorrect, but he denied that the other facts therein were incorrect. However, he admitted that he did not state to police that the fact of committal of suicide mentioned in the report was wrong. He also stated that he opposed the bail application filed by the accused by filing his affidavit, wherein he stated that accused committed murder of Sunanda by giving shock and strangulation. Hence, suggestion was given to him that accused never demanded any amount to Sunanda and they had not illtreated her for that purpose, but he denied the same. It was further suggested to him that at the time of marriage, no dowry amount of Rs.45,000/- and 50 grams of gold was given to the accused, but same was denied by him. It was also suggested to him that the marriage between accused no.1 and Sunanda was not a valid marriage, since their earlier spouses were alive, but same was also denied by him. The defence also put up its case to him that Sunanda died due to explosion of stove by way of accident when she 14 cra82.01 was cooking, but same also was denied by him. 17 In the cross-examination conducted by accused nos. 4 and 7, PW1 Keshav stated that the marriage by way of Sulagna procedure was performed with the mediation of accused no. 7 Shridhar and his father-in-law, and hence, PW1 Keshav used to inform them about the illtreatment suffered by Sunanda. He denied that when ceremonies of Sulagna were performed, Sunanda was having amount of Rs.1,15,000/-, which was kept in her name by her father. He also stated that amount of Rs.30,000/- was kept in fixed deposit in her name in Bahinabai Chaudhari Bank at Asoda. He denied that accused no.1 was the nominee to the said fixed deposit receipt. He volunteered that the said fixed deposit was obtained prior to marriage of Sunanda with accused no.1, but there is no cross-examination in respect of said voluntary statement. He also stated that accused were having income from agricultural land and they could maintain themselves properly. He further stated that when sulagna of Sunanda was performed with accused no.1, he was in service in Jain Pipes and he made inquiry about his monthly salary i.e. Rs.1,500/- per month. The defence put up its case to PW1 Keshav that prior to sulagna of Sunanda, she was taking treatment of Dr. Nemade, but same was denied by him. It was also suggested to him that Sunanda was not subjected to harassment by the accused, 15 cra82.01 but same was denied by him. Suggestion was also given to him that on the date of incident, accused no.1 returned from his duty in the mid night and at that time while providing meal to him by Sunanda, she met with accident and thereby died, but same was denied by him. 18 Coming to the evidence of PW3 Dr. (Sau) Kavita Satish Sontakke, wherein she stated that she was working as Medical Officer in Civil Hospital, Jalgaon in July 1995 and on 14.7.1995, dead body of Sunanda was brought by police personnel of M.I.D.C. Police station, Jalgaon for conducting postmortem. Accordingly, she conducted postmortem on the said dead body and found 1 st to 4 th degree burns on her body and the total burns were 100 per cent and all the said burn injuries are mentioned in column no.17 of the postmortem notes. She also stated that during internal examination, she found no fracture to the skull bone, brain and meninges were congested, mucous larynx, trachea red and congested,soot particles seen in trachea; both lungs were congested; left side of heart was empty, right side was full of blood; stomach was empty, mucous membrane red and congested; small intestine and large intestine full of gases, lever, pancreas, spleen, kidney were congested. Bladder was empty. Organs of regeneration gravid uterus of about 28/30 weeks seen, still burn female child of about 28/30 weeks extracted. 16 cra82.01 According to her, cause of death was, shock due to extensive burns (100%). She prepared postmortem notes, which are produced at Exh. 63. She stated that said victim died before 24 hours prior to conducting the postmortem notes. 19 During cross-examination conducted by accused nos. 1 to 3, she stated that according to her opinion, the period of death can be extended up to 10.00 a.m. of 13.7.1995. She admitted that for fixation of time of death one of the factors is postmortem lividity, but she admitted that in postmortem Exh.63 she has not mentioned about postmortem lividity. She further stated that for calculating fixation of time, she considered the condition of rigor mortis and decomposition signs. She also stated that process of rigor mortis starts after about six hours and it continues upto 12 hours and remains constant thereafter for further 12 hours and then decreases. According to her opinion, deceased Sunanda might have died within 24 hours on 14.7.1995 from 11.00 p.m. and she might have also died at about 11.00 p.m. on 14.7.1995. She further categorically stated that deceased was pregnant. She agreed that after gestation(conception) till the end of lactation, some physiological metabolic changes used to happen in the body. She also agreed that in some cases, due to above changes some psychic changes may also happen in the pregnant lady, and she further agreed that 17 cra82.01 due to above changes, in some cases, suicidal tendency is likely to be developed in pregnant ladies. 20 Turning to the deposition of PW4 Subhadrabai Senu Nahete i.e. mother of victim, wherein she stated that marriage of Sunanda was performed with accused no.1 prior to 14 months of the incident, and at the time of marriage 50 grams gold was given as dowry. She also stated that after marriage, some amount was given to Sunanda, since she was harassed and illtrated by the accused. She also stated that after marriage for about three months Sunanda was treated properly. In the said context, she stated that after marriage an amount of Rs.10,000/- was demanded in the beginning, which was given to the accused by his elder son i.e. the complainant PW1 Keshav. However, after payment of said amount of Rs.10,000/-, again she was illtreated by the accused for compliance of more amount for plastering the house, and hence amount of Rs.8,000/- was paid by his younger son Bhagwat to the accused. However, after payment of the said amount, accused used to illtreat Sunanda, which was disclosed by her to her brother. She also stated that Sunanda used to cry before her because of illtreatment at the hands of the accused sustained by her for the payment of cash amount. She also stated that she used to go to Sunanda. She further stated that even after payment of amount of Rs.18,000/- to the accused, the accused 18 cra82.01 used to demand more cash amount. However, she stated that after payment of Rs.18,000/- they did not pay more amount to the accused, and because of non-payment of the amount, the accused used to beat Sunanda and also used to harass her on that count. She further stated that after some days, she received information from Raju Sonu Bhangale about the death of Sunanda. Hence, she, her son i.e. complainant and another son and the relatives visited the house of the accused at Jalgaon and saw the dead body of Sunanda in burnt condition and there was smell of kerosene thereto. Accordingly, she categorically stated that Sunanda died due to harassment by the accused for demand of dowry amount. 21 While conducting the cross-examination by learned counsel for accused nos. 1 to 3, she admitted that the fact of giving 50 grams gold as dowry was stated by her for the first time before the court. She also stated that accused demanded Rs.10,000/- and Rs.8,000/- to her son as help for construction and repairs of the house, which was disclosed by her son. She also stated that her son paid the said amount to accused without any hesitation and willingly and she also did not raise any objection therefor. She further stated that Sunanda visited their house for about 5 to 6 times after the marriage till her death and the distance between Jalgaon and Asoda was