(1) CRI. APPEAL 167.1998 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 167 OF 1998 Vijay S/o Jaiwanta Dhumal, Aged : 22 years, Occu.: Student, and Agriculture, R/o Khadgaon, Taluka Gangapur, Dist. Aurangabad .. Appellant VERSUS The State of Maharashtra (Copy to be served on A.P.P. High Court of Bombay, Bench at Aurangabad) .. Respondent ... Mr. H.F. Pawar, Advocate h/f. Mr. A.H. Kapadia, Advocate for the Appellant Mr. D.V. Tele, A.P.P. for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATE OF RESERVING THE JUDGMENT : 13TH DECEMBER, 2010 DATE OF PRONOUNCING THE JUDGMENT : 22ND DECEMBER' 2010 JUDGMENT:- 1] Challenges in this Appeal is to the judgment of the Sessions Court, Aurangabad, in Sessions Case no. 139 of 1997, whereby the appellant Vijay is convicted for offences punishable under section 498- (2) CRI. APPEAL 167.1998 A, 304-B and 306 of the I.P. Code and sentenced to suffer R.I. for two years on the first count, R.I. for seven years and fine of Rs.2000/- in default R.I. for six months on second count and R.I. for three years and fine of Rs.1000/- in default R.I. for six months on the third count. 2] The appellant was tried before the learned Sessions Judge alongwith his parents and other relatives who were original accused nos. 2 to 7, for the offences punishable under section 302, 498-A, 304-B and 306 r/w. section 34 of the Indian Penal Code. They were jointly charged for the offence of matrimonial cruelty meted out to wife of the appellant, namely, Sangita and also causing her homicidal death or causing her death under unnatural circumstances and/or abetment to her suicide. The learned Sessions Judge held that the charge for offences of murder was not established against the appellant and other co-accused. He also held that no case was made out against the other co-accused. However, the learned Sessions Judge came to the conclusion that the appellant subjected deceased (3) CRI. APPEAL 167.1998 Sangita to the matrimonial cruelty on account of her failure to meet out his unlawful demand and was responsible for her death which occurred under the abnormal circumstances within period of seven years of marriage and that she was subjected to matrimonial cruelty soon before her such death. The learned Sessions Judge further held that the appellant was guilty of offence of abetment of her suicide. In keeping with such finding, the appellant alone was convicted and sentenced as indicated hereinabove. 3] The prosecution case, stated briefly was that about 10 months before death of Sangita in the matrimonial home, her marriage with the appellant was performed in accordance with the realms and customs prevailing in the community. Her parents had given amount of Rs.40,000/- towards dowry and one tola (10 gm) gold to the appellant. Sangita was residing in the matrimonial home which was jointly under occupation of the appellant and his relatives. After about a couple of months of the marriage, the appellant put forth demand of Rs.25,000/- for the purpose of purchasing a motorcycle. He asked Sangita (4) CRI. APPEAL 167.1998 to fetch the amount from her parents. On her failure to meet the unlawful demand, he used to ill-treat and harass her. As and when she used to visit her maternal home, she used to narrate about the ill- treatment given to her by the appellant on account of failure to comply with the demand of Rs.25,000/-. Her father assured the appellant that the amount would be paid after the harvesting season. A couple of weeks prior to her death, Sangita visited her parents house. She told her parents that she was beaten up by the appellant due to non-fulfillment of the unlawful demand of Rs.25,000/-. About a week before her death, the appellant himself had demanded the amount from her father while taking her back to his house from her parents house. The parents of deceased Sangita were engaged in attending a religious function at village Murmi during period of three days between 29th to 31st January, 1997. In the morning of 31st January, 1997 they learnt that Sangita had received burn injuries. Consequently, they went to house of the appellant. They noticed that dead body of Sangita was transported to the Government Hospital at Wadgaon and lateron it was (5) CRI. APPEAL 167.1998 brought back since the hospital timing for post- mortem was over. In the next morning the dead body was subjected to post-mortem examination. It was found that Sangita had received 100% burns and was practically charred to death in the matrimonial home. Her father thereafter lodged F.I.R (Ex.18). He lodged a complaint against the Police Officer who expressed opinion that the death of Sangita was on account of her suicide. He made complaint against the Police Officer to the Collector and the D.S.P. The investigation was transferred, therefore, to the P.S.O. of Gangapur Police Station. Her father received information from P.W.5 Raosaheb and one Sarjerao who was not examined by the prosecution that the appellant had caused homicidal death of Sangita in the matrimonial home and, therefore, he persuaded the higher Police Officer for proper investigation in the context of the offence of her murder. The Police visited the spot and prepared a spot panchanama. The stove containing 100 ml kerosene, a match-box, and a pair of chappals came to be recovered from the spot. The Investigating Officer recorded statements of witnesses comprising of the mother and other (6) CRI. APPEAL 167.1998 relatives of deceased-Sangita as well as some of the villagers from village Dhanori where her matrimonial home was situated. On completion of the investigation, the appellant and his other relatives were put on trial for the offences of the murder, matrimonial cruelty, abetment of her suicide etc. 4] The appellant pleaded not guilty to the charge framed against him vide Exhibit no.3. He stated that on the day of incident he had gone to attend the agricultural work in his field where he had learnt that Sangita had received burn injuries. He admitted that she sustained 100% burn injuries while she was in the matrimonial home in the relevant morning. It was suggested, however, that she received the burn injuries due to the accidental bursting of stove while she was cooking the food. The appellant denied that he was present in the house when the incident, involving Sangita and her being caught by flames of fire, had occurred. He also denied the accusation that he had demanded amount of Rs.25,000/- from deceased-Sangita or her father. No specific defence as such was raised by him. (7) CRI. APPEAL 167.1998 5] At the trial, the prosecution examined in all 15 witnesses in support of its case. The learned Sessions Judge held that death of Sangita occurred within a short span of the matrimonial period i.e. within about 10 months of the marriage and that she was subjected to matrimonial cruelty by the appellant. The learned Sessions Judge further held that the appellant had made unlawful demand of Rs.25,000/- and gave cruel treatment to deceased Sangita due to her failure to comply with his demand. The learned Sessions Judge came to the conclusion that death of Sangita was under abnormal circumstances and she was subjected to cruelty soon before her death and, therefore, the appellant was liable for conviction under section 304-B of the I.P. Code. He was also held guilty of the abetment of the alleged suicide of Sangita. 6] Upon hearing learned counsel Mr. Pawar H.F. and learned A.P.P., and on consideration of the record and proceedings, the following points are formulated for the purpose of decision in this Appeal:- (8) CRI. APPEAL 167.1998 i) Whether, in the facts and circumstances of the present case, it is proved beyond reasonable realm of doubt that the appellant subjected deceased-Sangita to the matrimonial cruelty which answers either explanation (a) or (b) as appended to section 498-A of the I.P. Code? ii) Whether, in the facts and circumstances of the present case, it is proved that soon before her death Sangita was being subjected to the matrimonial cruelty by the appellant and it has no relation with her suicide or the death under the abnormal circumstances? iii) Whether the learned Sessions Judge committed error while holding the appellant guilty for offences of the abetment of the suicide of Sangita once it was found that he was liable to be convicted for the offences punishable under section 304-B of the I.P. Code? iv) Whether the impugned judgment of conviction and sentence is legal, proper and sustainable? 7] Before I proceed to embark upon scrutiny of the oral evidence tendered by the prosecution, it may be made clear that there is no dispute about the fact (9) CRI. APPEAL 167.1998 that marriage between the appellant and deceased Sangita was admittedly performed about 10 months of her marriage. The incident occurred, no doubt, within short span of the matrimonial life. There can be no manner of doubt that death of Sangita was under pathetic condition. Her dead body was recovered from the matrimonial home in charred condition. There is no dispute regarding cause of her death. The post- mortem notes (Exh.31) go to show that the skin over the body of Sangita was found blackened and there were extensive superficial as well as deep burns on her person. The post-mortem notes indicate that there was no external injury found on her person. The death of Sangita was caused due to the shock as a result of 100% burns. The recitals of the post- mortem notes are duly corroborated by P.W. 8 Madhukar Kirtikar. His version is not disputed or otherwise challenged by way of cross-examination. So also, the inquest panchanama Exhibit 14 is an admitted document. 8] The death of Sangita was immediately reported by P.W. 1 Bhaurao, Village Police Patil to (10) CRI. APPEAL 167.1998 the P.S.O., Shillegaon vide report (Exh.16). The Police registered case of accidental death vide no. 2 of 1997 under section 174 of the Cr.P.C. on basis of such report. The report purports to show that P.W. Bhaurao was informed about the death of Sangita at about mid-day by son of Rangnath Kalaskar. It is amply clear, therefore, that the incident giving rise to the death of Sangita had occurred somewhere around the mid-day and inside the matrimonial home. 9] The main witness examined by the prosecution before the Sessions Court was P.W.2 Tukaram. He is father of deceased-Sangita. His version purports to show that amount of Rs.40,000/- was paid as dowry besides one tola (10gm) of gold at the time of marriage between deceased-Sangita and the appellant. Their marriage was performed before about 10 months of the alleged incident resulting into her death. He deposed that the appellant no.1 treated deceased Sangita quite well for about a couple of months. It was thereafter that demand of Rs.25,000/- was made in order to purchase a motorcycle. He does not refer to any particular instance of the matrimonial cruelty at (11) CRI. APPEAL 167.1998 hands of the appellant. He vaguely stated that the appellant, the mother-in-law and the sister in law were ill-treating Sangita. He deposed that during her visits to his house, Sangita used to cry and tell him that amount of Rs.25,000/- should be paid in order to comply the demand. He further deposed that about a fortnight prior to her death he had brought Sangita to his house. During her stay in his house she had narrated to him about the demand made by the appellant and his relatives and also regarding the ill-treatment given to her. There is a sweeping statement about the information given by her regarding the alleged ill-treatment though no particular instance was given. He vaguely states that she had also informed him that she was being beaten up. His version purports to show that about a week before the death, the appellant visited his house and took her back home. He categorically states that at that time the appellant demanded Rs.25,000/- for purchase of the motorcycle. He further deposed that he had assured the appellant to pay the amount after the harvesting season. He deposed that the appellant left with Sangita in angry mood. (12) CRI. APPEAL 167.1998 10] The testimony of P.W. Tukaram is, of course, in keeping with the recitals of the F.I.R. (Exh.18). It is important to note that the F.I.R. itself shows that on 31.1.1997 P.W. Tukaram and his wife had gone to village Murmi for attending a religious function and at about 3.00 pm. they were informed by the father of the appellant that in his house the untoward incident had taken place due to burning of raw cotton and, therefore, Sangita had received burns. It has come on record that parents of the appellant were in the company of P.W. Tukaram and his wife at village Murmi for attending the religious function. Even so, P.W. Tukaram named them as the accused persons who were demanding the amount and were subjecting deceased-Sangita to matrimonial cruelty. The conduct of P.W. Tukaram is worthy to be noted. He admits, unequivocally, that Sangita used to visit his house on the occasion of each festival and she was being brought to his house by the appellant. He admits that as and when he had gone to the house of the appellant, Sangita was readily sent by the appellant and his relatives, with him. He (13) CRI. APPEAL 167.1998 further admits that the appellant used to visit his house to take Sangita back to the matrimonial home. His version reveals that deceased-Sangita was his single female child. She had never sent any letter or chitthi to him in respect of the alleged ill- treatment or demand of the appellant. His version further reveals that he had visited house of the appellant on 7-8 occasions in the short span of 10 months of her matrimonial life. He admits unequivocal terms : " Whenever I went to the house of the appellant, I was respected and looked after by them." The above referred statement of P.W. Tukaram reveals that the appellant and his parents had maintained co- ordial relations with him. His version reveals that he had gone to the Police Station on 1st February, 1997 alongwith witness Sarjerao, Vitthal and Suryabhan, after the dead body of Sangita was cremated. Needless to say, the FIR was lodged after deliberations with other witnesses including Sarjerao and Raosaheb who are inhabitants of village Khadgaon, which is the native place of the appellant. It (14) CRI. APPEAL 167.1998 further appears that he made complaints against a Police Officer because the Police Officer was of the view that the death of Sangita could be of suicidal nature. On his complaint, the investigation was transferred to the P.S.O. of Gangapur. In other words, P.W. Tukaram is a person of complaining nature and was prompted to file the FIR on basis of hearsay information by P.W. 4 Sarjerao and one Raosaheb. 11] At this juncture, I shall switch over to the version of P.W.7 Sindhubai, who is mother of deceased-Sangita. Her version would make it amply clear that the allegations regarding the matrimonial cruelty are of omnibus nature. Her version purports to show that Sangita had visited her parent's house on atleast 7-8 occasions. Thus, it is manifestly clear that Sangita was freely allowed to go to parent's home and moreover, P.W. Tukaram used to frequently visit her matrimonial home during the relevant period of 10 months of her matrimonial life. The testimony of P.W. Sindhubai does not show that the appellant returned back to his house with Sangita in angry mood. Her version does not show that he had (15) CRI. APPEAL 167.1998 demanded Rs.25,000/- from P.W. Tukaram during the last visit when he had been to house of the in-laws for the purpose of taking back Sangita to the matrimonial home. It is worthwhile to note that P.W. Sindhubai admits the fact that there is omission in her Police statement as regards visit of the appellant to her house before about 5-6 days of the death of Sangita. In fact, the versions of P.W. Tukaram and P.W. Sindhubai do not spell out any particular instance of the matrimonial cruelty nor their versions are sufficient to infer the alleged matrimonial cruelty meted out to deceased-Sangita by the appellant. It is true that they need not be dis- believed because they are parents (relatives) of deceased-Sangita. Even so, their sweeping and omnibus statements can not be readily accepted as gospel truth. 12] In the above background, version of P.W. 4 Raosaheb may be looked into. He did not support case of the prosecution. He had gone to the house of the appellant in the relevant noon at about midday. His version purports to show that his children informed (16) CRI. APPEAL 167.1998 him that smoke was emanating from the house of the appellant. He reached the house and noticed that the entrance door was open and dead body of Sangita was lying in the house. He categorically states that he had not seen the appellant present in the house. He was declared hostile but nothing of much importance could come out of his cross-examination. The prosecution examined P.W.5 Sarjerao on the same aspect. He too was declared hostile. His version also does not show that the appellant was present at the matrimonial house in the relevant noon. He admitted during the course of cross-examination that when the door was opened then they had seen charred dead body of Sangita inside the house. The learned Sessions Judge seems to have relied upon such part of the statement of P.W. Sarjerao, totally ignoring the earlier part of his version that he had not seen that the door of the house was latched from outside. In fact, there is no iota of evidence to infer that the house of the appellant was closed from outside while Sangita had been caught by fire flames. 13] P.W.6 Chandrabhan is the uncle of deceased- (17) CRI. APPEAL 167.1998 Sangita. His version also is of omnibus nature in sofar as the demand of Rs.25,000/- is concerned. He deposed that Sangita was being ill-treated and beaten by her in-laws on account of non-fulfillment of the said demand. He does not say anything about the so- called ill-treatment at hands of the appellant. He does not subscribe to the prosecution story that Sangita was brought to house of P.W.-Tukaram before about 15 days of her death. There is omission in his Police statement regarding the ill-treatment of Sangita and the demand made by the appellant which P.W.-Tukaram agreed to fulfill after the harvesting season. In any case, such omnibus and general statements of the close relatives of deceased-Sangita could not have been implicitly relied upon to infer complicity of the appellant in sofar as the offence of matrimonial cruelty is concerned. It is pertinent to notice that P.W. 9 Suryabhan is also uncle of deceased-Sangita. He does not refer to demand of Rs.25,000/- in particular though he made a sweeping statement that she was being ill-treated by accused persons over demand of a motorcycle. No particular instances are spelt out by him in regard to the (18) CRI. APPEAL 167.1998 manner of alleged ill-treatment meted out to deceased-Sangita. His version purports to show that since P.S.O. Shri Bhosale expressed the opinion that death of Sangita was of suicidal nature, he had lodged the complaint with the D.S.P. The prosecution case has not been corroborated by P.W.10 Vijay, who was examined as a witness being native of village Khadgaon. He denied that he had seen the appellant while quarreling with Sangita on that day. The testimony of P.W.13 Vilas reveals that he also narrated about the matrimonial cruelty at hands of the sister-in-law of Sangita. He is brother of deceased-Sangita. He narrated that he had seen that sister-in-law of deceased-Sangita used to break the cup and saucers and used to manipulate accusations of causing damage to the articles by the deceased- Sangita. He went a step ahead and narrated that the appellant used to instigate other accused persons to burn Sangita by pouring kerosene on her person or to kill her by administering insecticide called "endrine". The version of P.W. Vilas is not short of deviation from the recitals of the F.I.R. and the story put forth by his parents. (19) CRI. APPEAL 167.1998 14] It is not necessary to elaborately discuss the remaining evidence. For, most of the remaining evidence is of formal character or that of the investigating officer who took up the investigation after the FIR was lodged. P.W. 3 Sanjay corroborates the spot panchanama (Ex.20). The spot panchanama goes to show that the electric wiring was damaged, there were pieces of burn clothes and raw cotton stored by side of the walls found burnt. The condition of the plastic strips used for concealing the electric wiring would show that the strips were melted alongwith the electric wire and were found hanging. This is a material fact. It reveals that there was probability of catching of fire by the stock of raw cotton due to the short-circuit and accidental flow of the electric current upto the stock of the raw-cotton. Nobody will deny that there is also possibility of suicide by deceased-Sangita. There cannot be any two opinion about the fact that her death was under the mysterious circumstances or the circumstances otherwise than natural. 15] Taking overall view of the matter, it is (20) CRI. APPEAL 167.1998 amply clear that except omnibus statements of the parents and uncles of deceased-Sangita, there is no tangible material to infer that she was subjected to matrimonial cruelty by the appellant nor there is a reliable evidence to show that soon before her death she was subjected to matrimonial cruelty on account of her failure to meet the unlawful demand of the appellant. The presence of the appellant in the proximity of his residential house in the relevant noon is also not duly proved and, therefore, he could not be held responsible for her death. The learned Sessions Judge committed patent error while convicting the appellant for the offences punishable under section 304-B as well as section 306 of the Indian Penal Code. The appellant could be held responsible for death of Sangita as abettor to her suicide only if the main charge of the matrimonial cruelty could be regarded as duly proved. 16] In "State of Maharashtra Vs. Chandrakant Dagadu Sherkhane 2005 B.C.I. 22" a Division Bench of this Court, held that there ought to have been some evidence of third person in respect of the additional (21) CRI. APPEAL 167.1998 demand made by the husband or his relatives. It is further held that to attract section 304-B of the Indian Penal Code, it was necessary to show connection with the demand of dowry and the matrimonial cruelty soon before the death. In "Durga Prasad and anr. Vs. State of M.P. 2010 AIR (SCW) 3673", the Apex Court observed: "15. As has been mentioned hereinbefore, in order to hold an accused guilty of an offence under Section 304-B IPC, it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her marriage, it has also to be shown that soon before, her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. Only then would such death be called "dowry death" and such husband or relative shall be deemed to have caused the death of the woman concerned." 17] The cumulative effect of the discussion made hereinbefore, and the settled legal position, is that (22) CRI. APPEAL 167.1998 the charge could not be said to be proved against the appellant. In any case, he deserve benefit of reasonable doubt in view of the nature of evidence adduced by the prosecution. Consequently, the Appeal is allowed.