1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.243 OF 1998 Adinath s/o Apparao Bhojrao, Age 25 years, R/o Sayyed Hipperga, Taluka Omerga, District Osmanabad ..APPELLANT (Accused) VERSUS The State of Maharashtra ..RESPONDENT Mr.K.J.Ghute Patil, Advocate for appellant Mr.N.R.Shaikh, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS, J. DATE : 27th SEPTEMBER 2010 ORAL JUDGMENT 1. The appellant, who stands convicted for an offence punishable under Section 498-A of the Indian Penal Code and sentenced to rigorous imprisonment for one year and to pay fine of Rs.2,000/- in default of which to undergo further rigorous imprisonment for three months, by the Additional Sessions Judge, Osmanabad, by judgment dated 14.8.1998, in Sessions Case No. 84 of 1996, by this appeal questions the correctness of his conviction and sentence. 2. On the basis of the report lodged by P.W.1 Vaishnav at Exh. 21, an offence vide Crime No.48/1993 under Sections 498-A, 304- 2 B and 306 read with section 34 of the Indian Penal Code came to be registered against the appellant and other accused. P.W.6 Asif Ali Khan, a P.S.I., who was attached to Lohara Police Station was entrusted with the investigation. Prior to lodging of the report, it appears that one Head Constable Choure had registered an Accidental Death and had entrusted the inquiry of the Accidental Death to one Head Constable, Kazi. Accordingly, Head Constable Kazi had drawn the inquest panchnama at Exh.16 and scene of the offence panchnama at Exh.25 in the presence of witnesses. From the scene of the offence a plastic container of half a liter capacity came to be seized. The clothes and ornaments of deceased Surekha also came to be seized vide seizure memo at Exh.17 in the presence of witnesses. The dead body of deceased Surekha was referred for post mortem examination and post mortem on the dead body of deceased Surekha came to be performed by P.W.5 Dr.Vinayak Bhatkar. He did not notice any external injuries on the dead body of deceased Surekha. The viscera was referred for report of the Chemical Analyser and on the basis of the report of the Chemical Analyser at Exh.19, P.W.5 Dr.Bhatkar opined that cause of death was asphyxia due to poisoning. The poison which was detected in the report of the Chemical Analyser at Exh.19 was of Endosulphan i.e. a pesticide. Further to the completion of investigation a charge-sheet against the appellant-accused came to be submitted. 3 3. On committal of the case to Court of Sessions, trial Court vide Exh.10 framed charge against the appellant and original accused No.2 for offence punishable under Section 304-B read with section 34, section 306 read with sec.34 of the Indian Penal Code and section 498-A read with sec.34 of the Indian Penal Code. Prosecution in support of its case examined six witnesses and the trial court upon appreciation of their evidence acquitted original accused No.2 and also acquitted the present appellant for offence punishable under Sections 304-B and section 306 of the Indian Penal Code and convicted the appellant for offence punishable under Section 498-A of the Indian Penal Code. 4. In order to effectively deal with the submissions advanced before me by the learned Counsel for the appellant, it would be useful to refer to the evidence of the prosecution witnesses. 5. P.W.1 Vaishnav, father of deceased Surekha states that marriage of his daughter Surekha was solemnized with accused No.1 about 2 to 2 ½ years prior to her death. He further states that it was agreed that an amount of Rs.21,000/- and 1 ½ tola of gold was given to the accused as dowry. Accordingly, an amount of Rs.19,000/- and one tola of gold was given to the accused as dowry. He states that initially Surekha was treated well for a period of one year but after one year the accused started assaulting his daughter Surekha because of the unpaid dowry 4 amount of Rs.2,000/- and ½ tola of gold. He states that Surekha had narrated to him when she had come to his house for attending the festival of Nagpanchami and at that time Surekha had disclosed to him that she had been assaulted by accused No. 1 with a sickle on her head. Surekha had requested to P.W.1 Vaishnav to pay the aforesaid amount otherwise she would not go to the house of the accused for co-habitation. He accordingly states that he had gone along with Surekha and had told the grandfather of accused No.1 that he would pay balance amount of dowry after the agricultural produce was sold. He states that some days thereafter he received a message that Surekha had died and had accordingly gone to the house of the accused and thereafter lodged his report. In cross-examination, he has admitted as true that the family of the accused were possessing 60 to 70 acres of irrigated land and the financial position of the accused was sound. He has admitted that his daughter Surekha used to come to his house for attending festival of Nagpanchami. For Diwali festival she had stayed for about 8 to 10 days. He then states that in the Nagpanchami festival of 1993 she had resided for 15 days at his house. He has further admitted in cross- examination that as he was ready to pay the balance amount of dowry, he had never persuaded the accused. He has admitted that the Police were present in the house of the accused for the entire day. 5 6. Prosecution has examined P.W.2, Bhagwan an uncle of deceased Surekha, who also like P.W.1 states that Surekha was illtreated and the illtreatment was disclosed to him by Surekha when she had come to the house of her father for attending the festival of Nagpanchami. He states that Surekha had disclosed to him that her husband had assaulted her with a sickle on her head and Surekha had pointed out the injury sustained by her. He states that he had persuaded Surekha that the balance amount of dowry would be paid to the accused. In cross-examination he has admitted not to have stated in his previous statement that an amount of Rs.21,000/- and 1 ½ tola of gold was agreed to be given to the accused as dowry. He has admitted not to have stated in his previous statement that an amount of Rs.19,000/- and one tola of gold was given to the accused as dowry at the time of marriage. He claims to have stated to the Police in his previous statement about Surekha informing him that Surekha had been assaulted by her husband and she had pointed out the injury sustained by her. The aforesaid statement has been duly proved as omission in evidence of cross-examination of the Investigating Officer. 7. Prosecution has examined P.W.3 Sudhakar, maternal uncle of deceased Surekha, who states that Surekha had disclosed to him that she had been assaulted on her head by a sickle on 6 account of non payment of the balance amount of dowry. In cross-examination omission has been duly proved that he had not stated in his previous statement that Surekha had informed him that she would not go for co-habitation unless the remaining amount of dowry was paid to the accused. 8. Thus, from the evidence of the prosecution it appears that in order to establish that dowry was agreed to be paid, prosecution had examined P.W.1, P.W.2 and P.W.3. P.W.1 states about the agreed amount of dowry and what was paid. P.W.2 also states about the agreed amount of dowry and what was paid to the accused as dowry and about Surekha being illtreated on account of failure to pay the remaining amount of dowry. However, the aforesaid facts are proved as omissions. P.W.3 Sudhakar, maternal uncle of deceased Surekha does not state as to what was the amount of dowry, which was agreed and what was the amount of dowry which was given to the accused. He only states Surekha informing him about her husband assaulting Surekha by a sickle. It would thus be seen that the evidence in respect of the agreed amount of dowry and what was paid to the accused as dowry and about illtreatment of Surekha on account of failure to pay the dowry is extremely vague and discrepant. The trial Court had acquitted the accused of an offence punishable under Section 304-B of the Indian Penal Code on 7 account of the fact that the prosecution had not been able to establish that deceased Surekha was illtreated soon prior to her death. If that be the case, the prosecution at the most had been able to prove a case of assault by the accused to Surekha beyond that there are no instances of cruelty. In that light of the matter, therefore, according to me the prosecution has miserably failed to establish cruelty within the meaning of Section 498-A of the Indian Penal Code and thus, the accused is entitled to be given the benefit of doubt. 9. Accordingly, this criminal appeal is allowed. The conviction and sentence of the appellant for offence punishable under Section 498-A of the Indian Penal Code is quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant be refunded to him. His bail bonds stand cancelled. ( P.V.HARDAS ) JUDGE (vvr/243.98criapeal) 8