( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 300 OF 1997 1. Bhagwan s/o Jagdeo Kashikar 2. Rajendra s/o Jagdeo Kashikar, Both r/o Kapurwadi, Taluka Jamner, Dist. Jalgaon. APPELLANTS VERSUS The State of Maharashtra RESPONDENT ..... Mr. P.R. Katneshwarkar, advocate for the appellants. Mr. N.R. Shaikh, A.P.P., for the respondent/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 9th September, 2009] ORAL JUDGEMENT : 1. This appeal is directed against judgement rendered by learned IInd Additional Sessions Judge, Jalgaon, in Sessions Case No. 318/1994 whereby the appellants have been convicted for offences punishable under section 306 and 498-A read with section 34 of the I.P. Code. They have been sentenced to suffer rigorous ( 2 ) imprisonment for five (5) years and to pay fine of Rs. 3000/- each, in default to suffer rigorous imprisonment for two (2) months on the first count and to suffer rigorous imprisonment for three (3) years and to pay fine of Rs. 1000/- each, in default to suffer rigorous imprisonment for one (1) month on the second count. 2. The appellants are real brothers interse. They alongwith their mother and other members of the joint family were residing together in a common house at village Kapuswadi under Jamner Tahsil. Somewhere in 1987, marriage between deceased Smt. Sunita and the appellant No. 1 was performed. She started residing with the family members of the appellants in their common house, after the marriage. Out of the wedlock, a daughter was born to her. Her daughter by name Meera was aged about three (3) years at the time of the alleged incident involving deceased Smt. Sunita. She was having an infant female child besides the daughter. 3. Briefly stated, the prosecution case is that the appellants used to illtreat her. She was illiterate. ( 3 ) The appellants and other members of their family used to frequently beat her and also used to psychologically harass and physically trouble her. On 25th July, 1993, she had visited house of her parents. She complained to her parents that she was beaten up by the appellants and the inlaws and was driven out of the matrimonial home. She further narrated to her father that they had threatened her that if she will not bring Rs. 5000/- from her parents, then she will not be kept alive. At that time, a report was lodged at Jamner Police Station. The criminal case instituted against the appellants and others was, however, settled between the parties. The husband (appellant No.1) executed an agreement to the effect that he would not trouble her any more. So, her parents sent her to reside with the appellants and other members of their family. The illtreatment, however, continued. ON 31st January, 1994 again, Smt. Sunita visited the house of her parents. She narrated to her parents that she was driven out of the matrimonial home and was directed to bring Rs. 3000/- from the parents. The parents were unable to pay due to paucity of funds. They sent her back to the matrimonial house on the next ( 4 ) day. On 05-02-1994, her father received telephonic information that Smt. Sunita died on the earlier day i.e. 04-02-1994 in the noon by consuming some poisonous substance. He visited the Government hospital at Jamner where her dead-body was seen. He noticed that the dead- body was kept in the mortuary. The mouth of deceased Smt. Sunita was smelling bitter. It was found that froth was emanating from her nostrils and the mouth. Her father – PW Supada lodged a report with the police. On basis of the FIR (Exh-36), the police carried out certain investigation. On the basis of material gathered during the course of the investigation, the appellants alongwith their another brother by name Ramchandra and parents were put up on trial for the offences punishable under section 306, 498A and 506 read with section 34 of the I.P. Code alongwith offence punishable under section 3 of the Dowry Prohibition Act. 4. At the trial, the prosecution examined in all five (5) witnesses in support of its case. The learned Sessions Judge held that there was sufficient evidence to infer complicity of the appellants for the offence of ( 5 ) matrimonial cruelty. The learned Sessions Judge held that deceased Smt. Sunita was harassed on account of non-fulfillment of the unlawful demands put forth by the appellants. The learned Sessions Judge held that she committed suicide by consuming some unknown poison and the and the suicide was the result of willful conduct of the appellants which drove her to do such act. Consequently, the appellants were convicted and sentenced as described hereinabove. 5. Question of significance is whether the charge pertaining to matrimonial cruelty meted out to deceased Smt. Sunita is duly proved. It is required to be examined whether the appellants by their willful conduct had subjected deceased Smt. Sunita to matrimonial cruelty on account of her failure to meet out their unlawful demands for Rs. 5000/- or Rs. 3000/-. It is further necessary to determine whether she committed suicide as a result of unbearable matrimonial cruelty and, therefore, it can be definitely said that they abetted the commission of her suicide. It is most important to notice that there is solitary version of ( 6 ) PW2 Supada in the context of alleged matrimonial cruelty meted out to deceased Sunita. Admittedly, there is no written demand draft. No-one from the proximity of the house of the appellants came to be examined by the prosecution. At the relevant time, deceased Smt. Sunita was blissed with two (2) daughters. One of the daughters was hardly aged about 9-10 months. Normally, the mother would not commit suicide when she was aware that the minor daughters would be left without support. The learned Sessions Judge appears to have been more impressed by the fact that the appellant No. 1 had executed an undertaking/agreement on the stamp paper (Exh-35). In fact, whatever may be the earlier incident of the matrimonial cruelty, which was previously reported by Smt. Sunita at the Police Station, Jamner, yet, it was of no much evidentiary value except and save to demonstrate the conduct of the deceased and the appellant No. 1. The agreement of compromise (Exh-35) dated 17-12-1993 would show that Smt. Sunita had recided in the matrimonial house without any harassment and trouble. She too stated in the terms of the settlement that due to misunderstanding and in a fit of anger, she ( 7 ) had filed the report at the Police Station for offence punishable under section 498A of the I.P. Code. She agreed to settle the matter and go back to the matrimonial house. The appellant No. 1 also expressed regrets about the errors committed in the past. The learned Sessions Judge misinterpreted the terms of the settlement (Exh-35) to draw inference that the appellant No. 1 admitted his guilt regarding the past instances of the matrimonial cruelty meted out to Smt. Sunita. Whatever stated in the terms of the compromise is that he regretted the previous error which culminated into filing of the criminal case. He had apologized for such mistake. This statement in the compromise petition dated 17-12-1993 cannot be, by any stretch of imagination, regarded as inculpatory statement of the appellant No.1. He did not state that he had illtreated and subjected Smt. Sunita to the matrimonial cruelty int he past. On the other hand, she stated that it was due to her misunderstanding that the said report was given by her at the Police Station. The learned Sessions Judge should not have considered the previous compromise between the spouses as admission of the appellant No. 1 of his guilt ( 8 ) regarding the past instances of the matrimonial cruelty. 6. The version of PW Supada purports to show that after the compromise was effected into vide Exh-35, Smt. Sunita went to reside at house of the appellants. Thus, the instances pertaining to alleged matrimonial cruelty after 17-12-1993 are required to be taken into account. For, the past instances were given a descent burial by the parties on account of the compromise terms arrived at between them vide Exh-35. The version of PW Sunita purports to show that after one and half months of such compromise i.e. somewhere at fag end of January, 1994, he brought Smt. Sunita to his house. He categorically states that at that time, she told him that her matrimonial life was going on smoothly. Needless to say, from 17-12-1993, till about last week of January, 1994, or to say around one and half month after the compromise, as stated by PW Supada, there was no grievance made by Smt. Sunita about any illtreatment at hands of the appellants or other members of their family. His version purports to show that after such a visit, she returned to the house of the appellants. He ( 9 ) deposed that after 15 days, again, she came to his house and told him that the appellants had sent her to bring Rs. 3000/- from him. He narrated that he could not pay her. Hence, she went back to house of the appellants. After about 15 days again, she visited his house and narrated to him that the appellants were beating her. She further narrated to him that if he would not pay the money as demanded, then they would kill her. After her such last visit, within about 4/5 days, he received the telephonic message about her death. He corroborated the recitals of the FIR (Exh-32). 7. As stated earlier, there is solitary version of PW Supada in context of matrimonial cruelty meted out to deceased Smt. Sunita. The version of PW Supada would show that there is inherent contradiction as regards his statement pertaining to the two (2) visits of Smt. Sunita after the compromise between the spouses. In one breath, he deposed that after one and half month of the said settlement, he had brought Smt. Sunita to his house and that time, she told him that her matrimonial life was going on smoothly. How can it be that within ( 10 ) subsequent period of about a week or so, prior to her death, there was demand of Rs. 3000/- and for such purposes, she had visited his house on two (2) occasions at interval of 15 days each. His police statement shows that he stated about demand of Rs. 4000/-. There are omissions in his police statement as regards the complaint made by Smt. Sunita to him during her second visit to his house after settlement of matrimonial dispute. Though the terms of the compromise entered between the spouses indicated that deceased Smt. Sunita stated that she had lodged the earlier complaint for offence punishable under section 498A due to misunderstanding, yet, this fact is denied by PW Supada. His such denial necessarily gives rise to the inference that he has no regard for truth. 8. At this juncture, it may be stated that PW3 Supada Bavaskar is closely related to the complainant i.e. PW Supada. His version purports to show that PW Supada is his brother-in-law being husband of his sister. His version purports to show that deceased Smit. Sunita, who was his niece, never made any ( 11 ) complaint of illtreatment at hands of the appellants. He denied that she was being beaten up by the appellants on account of non-fulfillment of the demand for money. He was declared hostile by the prosecution and was subjected to cross-examination. He admitted that after death of Smt. Sunita, he had gone to the house of the appellants. He saw the dead-body of Smt. Sunita in the Government hospital. He admitted that the mouth of the dead-body was smelling of poisonous substance and froth was coming from her mouth. Obviously, the close relative of the complainant (PW Supada) did not subscribe to the accusations regarding the alleged matrimonial cruelty meted out to deceased Smt. Sunita. In this view of the matter, solitary version of PW Supada, which consists of inherent contradictions and omissions, cannot be safely vouched for. 9. The remaining evidence of the prosecution need not be elaborately discussed. The testimony of PW1 Onkar lends corroboration to the inquest panchanama (Exh-31) and the spot panchanama (Exh-32). He is inhabitant of the same village where Smt. Sunita used to ( 12 ) reside alongwith the appellants and other members of the matrimonial family. He admitted that deceased Smt. Sunita used to visit the agricultural land alongwith other women folks. He further admitted that there was no illtreatment meted out to her. At a times, he used to see the appellants and deceased Smt. Sunita while sitting on ota (platform) of their house. The version of PW4 Dr. Yusuf would corroborate the recitals of the post mortem notes (Exh-40). In his opinion, the death of Smt. Sunita was due to cardio respiratory failure on account of consumption of certain organo phosphorous substance. The viscera was preserved and was forwarded to the chemical analyser. The report of the chemical analyser (Exh-46) goes to show the organo phosphorous insecticide called “thimet” was found in the viscera. 10. Taking stock of the evidence discussed hereinabove and having regard to the circumstances brought on surface of the record, it will have to be said that the prosecution failed to prove the charge of matrimonial cruelty. It is proved that deceased Smt. Sunita died as a result of poisoning due to consumption ( 13 ) of the insecticide. It is, however, difficult to hold that within a short span of about 45 to 50 days after the settlement of the terms of compromise between the spouses, she was subjected to any serious mal-treatment while residing together with the appellants. True, the circumstances brought on the record go to show that there is strong suspicion about her death and the probability of something going amiss with the conduct of the appellant No. 1 in relation to Smt. Sunita. However, it is well settled that mere strong suspicion would not be sufficient to prove the criminal charge. The suspicion, howsoever strong it may be, cannot take place of the proof. There is no cogent evidence to establish the fact that Smt. Sunita was being subjected to matrimonial cruelty at hands of the appellants during the period between 17-12-1993 till 04-02-1993 and she committed suicide due to the unbearable cruelty. The judgement drafted by the learned Sessions Judge indicates lack of the application of judicial mind to the fact situation and proper appreciation of the evidence in the judicial perspective. Thus, I hold that the charge is not brought home to the appellants and, ( 14 ) therefore, the appeal deserves to be allowed. 11. In the result, the appeal is allowed. The impugned judgement of conviction and sentence is set aside. The appellants are acquitted of the charges for offence punishable under section 498-A read with section 34 and section 306 of the I.P. Code. Their bail bonds be deemed as cancelled. The fine amount, if any deposited, be refunded to them. [ V.R. KINGAONKAR ] JUDGE NPJ/criapl300-97