1 APEAL 96 OF 97 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.96 OF 1997 1. Anil Dhondiba Sabale, 2. Madhukar Dhondiba both residing at Sablewadi, Taluka Karveer, Dist.Kolhapur .. Appellants. Ori. accused Nos 1 and 2 -versus The State of Maharashtra .. Respondent. Mr. Sandesh Patil with Mr. Prashant Jadhav, for the Appellants. Mrs. S.D. Shinde, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 23rd February, 2011 Oral Judgment. 1. This appeal is directed against the conviction of the appellants for the offence punishable under Section 498-A read with 34 of the Indian penal Code and sentence to suffer R.I. for one year and to pay fine of Rs.500/- each or in default to suffer R.I. for two months, imposed upon them by the learned Additional Sessions Judge, Kolhapur, on completion of Sessions trial No.168 of 1996. 2 APEAL 96 OF 97 2. The facts which are material to decide this appeal are as under:- The appellant No.1 Anil was married victim Minakshi, on 21st May, 1991. Around same time, her brother Raju was also married. While Raju’s wife gave birth to a son within about one year and 9 months. Minakshi had not conceived. Minakshi and the appellant No.1 Anil were taking treatment from one Dr.Amte. Few days before 28th November, 1995, Minakshi was called by her parents. On 27th November, 1995, she returned her husband’s house. On 28th November, 1995, her dead body was found in a well near the house. On a report by her father, filed on 28th November, 1995, offence was registered and investigation commenced. 3. After performing inquest, police caused the dead body to be sent for postmortem examination which reveals that the victim had died due to drowning. The police recorded statement of witnesses and on completion of investigation sent the chargesheet to the Court of Judicial Magistrate First Class, Kolhapur, who committed the case to the Court of Sessions at Kolhapur. 4. Appellants had been chargesheet alongwith their mother, for the offences punishable under Sections 304 (B), 498-A, 504 read with 34 of the Indian Penal Code. The learned trial Judge charged appellants and their mother of these offences. Since they pleaded not guilty, they were put on trial 3 APEAL 96 OF 97 at which prosecution examined in all six witnesses in its attempt to bring home the guilt of the accused. 5. After considering the prosecution evidence, in the light of defence raised, the learned trial Judge proceeded to acquit all the accused persons for the offences under section 304-B & 504 of the Indian Penal Code, and also acquitted appellant’s mother of the offence under Section 498-A of the Penal Code. But he convicted both the appellants for offence punishable under section 498-A read with 34 of the Indian penal Code. 6. I have heard learned counsel for the appellants and learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the evidence on record. P.W.1 Madhukar Patil is the panch on the panchnama at Exhibit 17, which shows that the well was full of water upto the brim. Thus there could be possibility of slipping into the well accidentally due to slippery stones. P.W.2 is Shankar victim’s father. P.W.3 is Indubai victim’s mother, P.W.4 and 5 Dropada and Nirmala, are the neighbours of victim’s parents, who state about illtreatment meted out to the victim. P.W.6 Vidyadhar Shete, conducted investigation. 7. Though P.W.2 Shankar had given a report about the illteatment being meted out to his daughter, he admitted in his cross examination that his daughter Minakshi never complained about illtreatment at the hands of accused to him, 4 APEAL 96 OF 97 but had made such complaint to his wife. Therefore, the evidence of P.W.2 Shankar is utterly useless to connect appellants to the victim’s illtreatment or death. 8. P.W.3 Indubai stated that the appellants were not providing meal to her daughter during her stay and used to ask her to work continuously. She also stated about the demand of Rs.10,000/-, gold chain and gold ring. She claims that these facts were disclosed by her daughter during her visits. She stated that she used to convince her daughter and send her back to the matrimonial house. She stated that in the first year of marriage, her daughter was treated well and illtreatment started only when the victim did not have any issue when her brother Raju became father of a son. P.W.3, Indubai, thus given two causes for illtreatment, first is demand of Rs.10,000/-, gold chain and gold ring and second is about inability to conceive and giving birth to a child. As to the first cause, it appears to be a rhetoric in order to make out offence punishable under Section 304-B or 498-A of the Penal Code. There is nothing to show that any such demand had been made by the appellants. Even as regards illtreatment there is general statement that the accused used to ask the victim to work continuously and they were not providing meals to her daughter. It is not stated as to which in activities, which two appellants indulged. Curiously learned Judge has let off the mother in law, who should have been as the head of 5 APEAL 96 OF 97 the family in the control of the kitchen as also activities of the daughter in law. Therefore, this story about illtreament to the victim by two appellants appears suspicious. 9. P.W.3, Indubai had stated that her daughter was given treatment by Dr. Padma Patil. P.W.2 the husband of P.W.1 Shankar stated that appellant No.1 as well as Minakshi were examined by Dr. Amte, who was treating them for about 5 to 6 months. He denied that Dr. Padma Patil was giving any treatment to the victim. Therefore, it appears rather difficult to believe that the victim was being illtreated because of inability to conceive, since even appellant No.1 had been examined by Dr. Amte and both husband and wife were taking treatment from Dr. Amte for 5 to 6 months. 10. While P.W.2 Shankar states that his daughter Minakshi had been to the parental home for marriage of his son Sanjay and also for taking treatment. P.W.3 Indubai was categorical that her daughter was staying at her house for the marriage of Sanjay, but there is no discord in the four witnesses examined that till the previous day of incident, victim was in the house of parents and victim had left a day prior to the incident. P.W.3 Indubai stated that her daughter had gone by State Transport Bus, after receiving a call from the appellant No.1, to her matrimonial home, after staying with the parents for about 10 to 12 days. 11. P.W.4 Dropadi who is neighbour of the parents of 6 APEAL 96 OF 97 victim, denied that victim was stayed with her parents for about 10 to 12 days, but stated that she stayed there only for two days. Witness who claims to be just like complainant’s sister and was in the know of the family affairs denied that the victim had any complaint about headache and/or pain in the stomach prior to her departure, or was taking treatment for that. P.W.5 Nirmala, is another neighbour and also a friend of the victim. She stated that the appellant No.1 had himself been to the house of parents of victim a day prior to the victim’s death and claims that appellant No.1 had shown willingness to accept the victim should she leave parental home with him which is nobody else’s case. Thus, the evidence of these witnesses, who are neighbours appears to be just got up. Even P.W.5 Nirmala denies that victim was stayed with her parents for about 10 to 12 days. 12. However, most importantly it has to be noted that evidence of P.W.3 Indubai, who is only person claims the illetreatment meted out by victim, is silent about any illtreatment by any of the two appellants in any particular form except saying that she was sometimes not given meals by accused or put to work continuously. These general allegations surfacing after the incident, should not have been persuaded the learned Trial Judge to hold the appellants guilty of the offence punishable under section 498-A of the Penal Code, especially when he had chosen to acquit the mother in 7 APEAL 96 OF 97 law for all the offences, aware of the fact that the mother in law as the head of the family, would be in-charge of the kitchen and would decide as to whether the victim was to be fed or not. However, the very fact that just a day before the incident, victim left her parental home on a call made by the appellant No.1 would rule out any reluctance on the part of victim to return matrimonial home. It is nobody’s case that she was forcibly taken by her father to her matrimonial home. Therefore, the allegations about illtreatment which have surfaced after the unfortunate incident, should not have persuaded the learned trial Judge to hold that the victim was subjected to any illtreatment or that the appellants were guilty of subjecting her to cruelty. 13. Learned Trial Judge seems to have held that victim has committed suicide. He should have seen that well in which victim fell was upto brim filled with water. Evidence of P.W.1, Madhukar, would indicate that stones were slippery. Therefore, the possibility of victim incidentally slipping into well had not been entirely ruled out. 14. In view of this, the conviction of the appellants for offences punishable under Sections 498-A read with 34 of the Indian Penal Code and the sentence to suffer R.I. for one year and fine of Rs.500/- cannot at all be upheld. The appeal is allowed. The conviction of the appellants for the offences punishable under Section 498-A and sentence to suffer R.I. for 8 APEAL 96 OF 97 one year and to pay a fine of Rs.500/- each in default to suffer further R.I. for two months is set aside, instead they are acquitted of the said offences. Their bail bonds stand cancelled. Fine if paid be refunded to the appellants. (R. C. CHAVAN, J.)