AJN IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1074 OF 1988 State of Maharashtra ) ... Appellant (Orig. Complainant) Versus 1. Subhash Aba Bodke ) age 28 years, ) Occ. Agriculturist. ) 2. Kisabai Aba Bodke ) age 45 years, Occ. house-hold duties ) both residing at Ashta, Tal. ) Islampur, Dist. Sangli. ) ... Respondents (Orig. Accused 1 & 2) Ms. A.S. Pai, A.P.P. for the appellant-State. Mr. N.V. Pradhan with Smt. S.D. Khot for respondents. CORAM: CORAM: CORAM: SMT. RANJANA DESAI & SMT. RANJANA DESAI & SMT. RANJANA DESAI & A.S. A.S. A.S. OKA, JJ. OKA, JJ. OKA, JJ. DATED: DATED: DATED: 15TH OCTOBER, 2004. 15TH OCTOBER, 2004. 15TH OCTOBER, 2004. ORAL JUDGMENT:- (Per Smt. Ranjana Desai, J.) 1. The respondents (for convenience, "accused 1 and 2 respectively") were tried in the Court of Sessions Judge, Sangli at Sangli in Sessions Case No.128 of 1987 for the offences punishable under sections 498A, 304B and 306 read with section 34 of the Indian Penal Code (for short, "the IPC"). By the judgment and order dated 11/8/1988, : 2 : the learned Sessions Judge acquitted the accused. Being aggrieved by the said judgment and order dated 11/8/1988, the State of Maharashtra has preferred this appeal against acquittal. 2. At the trial, the case of the prosecution was as follows. The complainant PW-1 Keshav is the resident of Khandobachivadi from Village Bhilavadi. He is the father of deceased Bharati. He has two sons viz. Prakash and Gajanan. He has two more daughters viz. Jijabai and Shalan. Shalan and Jijabai are married. Accused 1 Subhash is the husband of the deceased. Their marriage took place on 29/5/1985. Accused 2 Kisabai is the mother of accused 1 Subhash. After marriage, the deceased started residing at the house of the accused, which is at a distance of about two miles from Ashta. 3. It is the case of the prosecution that after marriage, the deceased had come to her father’s place in Jestha month. She had also come to her father’s house in the month of Ashadha and then at the time of Divali festival. At the time of Divali festival, she stayed at her father’s house for about 7 days and then she went to the house of accused 1. At that time, her parents gave her one saree and one blouse. They had also given her : 3 : some sweetmeats. Thereafter, she again came to her father’s house in the month of Poushya. At that time, she stayed there for about one month. As per the case of the prosecution, at that time, the deceased told her father that accused 2 Kisabai had told her that the clothes which were given to her at the time of Divali festival were of inferior quality and the sweetmeats were given to the cattle by her. She also told him that accused 2 Kisabai was harassing her. 4. The deceased came to the house of her father during Padva festival. She stayed there for about 8 to 10 days. At that time, the deceased told her father that accused 1 used to tell her that she should bring money from her father as the other wives were bringing from their fathers. She also told him that her husband had told her to bring Rs.5,000/- from her father and had threatened her that in case she does not bring the amount, he would not maintain her. Then her father PW-1 Complainant Keshav collected Rs.5,000/- and handed over the said amount to the deceased for giving it to accused 1. Thereafter, he sent back the deceased to the house of accused 1 with his son PW-2 Prakash. In the month of Bhadrapada, the deceased was brought to his house by PW-1 Keshav for delivery. He had sent his son PW-2 Prakash : 4 : and his wife to the accused’s house for that purpose. She delivered a male child. For the naming ceremony of the child, accused 2 Kisabai and her elder daughter-in-law had gone to the house of PW-1 Keshav. They had brought one gold locket. The child was named Pramod. Accused 2 Kisabai and her elder daughter-in-law then went back to their house. At the time of Akshaya Trutiya, the father-in-law of the deceased came to the house of PW-1 Keshav and took the deceased and her child to his house. 5. At the time of Panchami festival, the deceased and the child were brought to his house by PW-1 Keshav. They stayed there for about 8 to 10 days. At that time, the deceased told him that her monther-in-law was harassing her and that they should make some ornaments for her son. Thereupon, PW-1 Keshav told her that it was not possible for him to make the ornaments as his financial condition was poor. Then PW-1 Keshav purchased some clothes for his grandson and sent the deceased and her child with his son PW-2 Prakash to the house of the accused. 6. About 2 to 3 weeks thereafter, PW-1 Keshav had gone to the house of the accused. At that time, the deceased told him that her husband was insisting for a locket of : 5 : half tola of gold for her child and a locket of two tolas of gold for himself. The deceased also told him that her husband had told her that in case these ornaments were not given to him, he would not maintain her. PW-1 Keshav told the deceased that he was not in a position to give these ornaments on account of his poor financial condition. He then returned to his house. 7. According to the prosecution, about 10 to 12 days thereafter at about 12 noon, the father of accused 1 Subhash had been to the house of PW-1 Keshav with some other persons. He told him that the deceased had gone away with her child. It appears that the father-in-law of the deceased had filed a missing complaint at about 7.00 p.m. at the Ashta police station, which is at Ex-22. 8. PW-1 Keshav then went to Ashta police station on 20/9/1987 at about 10.00 a.m. At that time, one person came to the police station and told him that his daughter Bharati was seen lying in a well. He then lodged a complaint at the Ashta police station at about 10.00 a.m., which is at Ex-16. 9. Thereafter, PW-5 PHC Phadatare, who was attached to : 6 : Ashta police station registered Crime No.96/1987 for the offences punishable under sections 498A, 304B and 306 read with section 34 of the IPC. On the basis of this complaint, the investigation began. 10. PW-6 PSI Shinde visited the place of incident and body of deceased Bharati was taken out from the well. Her seven month old child was found tied to her body by a chaddar. The deceased and her child were then separated. Inquest panchnama was drawn. After investigation was completed, the accused came to be charged as aforesaid. 11. In support of its case, the prosecution examined seven witnesses. The prosecution story basically rests on the evidence of the father of the deceased. PW-1 Keshav, who had lodged the complaint. The prosecution also examined PW-2 Prakash, the brother of the deceased. Two neighbours PW-3 Pratap and PW-4 Vijaykumar were also examined to prove the prosecution case of cruelty and harassment, meted out to the deceased. The details of investigation were given by PW-5 PHC Phadatare, PW-6 PHC Shinde and PW-7 PSI Sayyed. 12. The defence of the accused was one of denial. The accused filed their written statement, which is at Ex-26. : 7 : According to the accused, on the day of the incident, deceased Bharati and her mother-in-law were cooking food in the kitchen. At that time, the child of Bharati was crying. Therefore, accused 2 Kisabai told her to feed the child first. Hence, she went to the padavi with her child. Accused 2 Kisabai continued cooking the food in the kitchen. She thought that Bharati must be in the padavi feeding the child. Within a short time, accused 1 Subhash came to the house. He then asked accused 2 Kisabai about Bharati. She told him that Bharati is sitting in the padavi with her son. Accused 1 did not see Bharati in the padavi. So he enquired in the neighbouring areas. However, he could not find Bharati. Thereafter, the father of accused 1 came to the house. He was also informed about the fact that Bharati was not found in the house. He told them that he would go to the house of Bharati at Ashta to see whether she had gone there. He then went to the house of Bharati’s sister but, Bharati was not there. Then he went to the house of PW-1 Keshav to make enquiry. However, Bharati was not found there also. Then he went to Padvalwadi to the house of the other sister of Bharati. There also, Bharati was not found. Thereafter, father of Bharati informed the police. In short, the accused claimed to be innocent. The accused, however, led no defence evidence. : 8 : 13. After perusing the evidence on record, the trial court came to the conclusion that the prosecution had not proved its case beyond reasonable doubt and, acquitted the accused. Hence, this appeal. 14. We have heard, at considerable length, the learned counsel appearing for both sides and with their help, we have gone through the record of the case. 15. Ms. Pai, learned A.P.P. appearing for the State contended that the trial court erred in acquitting the accused. She submitted that the prosecution has clearly made out a case under sections 498A, 304B and 306 read with section 34 of the IPC. She submitted that the evidence of PW-1 Keshav inspires confidence. It is clearly established by the evidence of PW-1 Keshav that the deceased was ill-treated in the house of the accused and several demands were made on her to bring gold, money, lockets, etc. from her father. The learned counsel contended that the trial court has not considered the effect of presumptions under sections 113A and B of the Evidence Act. Relying on the judgment of the Kerala High Court in State of Kerala v. Rajayyan and others, 1995 Cri.L.J. 989, the learned A.P.P. contended that : 9 : the cruelty towards the wife or harassment of a lady are generally committed in the privacy of residential homes and in secrecy and, therefore, independent and direct evidence may not be easily produced before the court. She submitted that the evidence in this case may be appreciated keeping this aspect in mind. Relying on State of Himachal Pradesh v. Nikku Ram and others, AIR 1996 SC 67, she submitted that even if the demand for money or property is made long after the marriage, the same could constitute dowry. The learned A.P.P. also urged that an offence under section 306 of the IPC is made out as there is clear indication in the evidence of PW-1 Keshav that on his last visit to the house of the deceased she had told him that her husband was insisting for a locket of half tola of gold for the child and a locket of two tolas of gold for himself and that he had also told her that in case these ornaments were not given to him, he would not maintain her. The incident in question took place about 10 to 12 days thereafter. Therefore, section 306 of the IPC is clearly attracted. 16. The learned A.P.P. also contended that the trial court has recorded the concession made by the learned public prosecutor that offence under section 304B is not made out. She drew our attention to the judgment of : 10 : division bench of this court to which one of us (Smt. Ranjana Desai, J.) is a party, in Criminal Appeal No.363 of 1988 delivered on 6th & 7th July, 2004, where a similar concession was made by the public prosecutor and this court has observed that when the evidence was led before the trial court, the trial court ought to have considered the entire evidence on record and not simply gone by the concession made by the public prosecutor unless the learned judge himself was satisfied that the concessions made by the public prosecutor were correctly made. She submitted that the concession in this case is wrongly made and, therefore, this court should ignore the concession and convict the accused. She further submitted that case against accused 1 and 2 is clearly made out from the evidence of PW-1 Keshav and, therefore, order of acquittal be set aside and the accused be punished in accordance with law. 17. Mr. Pradhan, the learned counsel appearing for the accused reminded us that we are dealing with an appeal against acquittal. He contended that unless the judgment of the trial court is perverse, it is not permissible for us to interfere with it. In this connection, the learned counsel relied upon the judgments of the Supreme Court in Sheo Swarup and others, v. King Emperor, AIR 1934 Privy : 11 : Council 227 (2), Surajpal Singh and others v. The State, AIR (39) 1952 SC 52, Shivaji Sahabrao Bobade and another v. State of Maharashtra, (1973) 2 SCC 793, Ganesh Bhavan Patel and another v. State of Maharashtra, AIR 1979, SC 135, Ajit Singh Thakur Singh and another v. State of Gujarat, (1981) 1 SCC 495, Chandra Kanta Debnath and others v. State of Tripura, (1986) 1 SCC 549, Tota Singh and another v. State of Punjab, AIR 1987 SC 1083, Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and Anil Kumar v. State of Punjab, (2000) 9 SCC 455. 18. Mr.Pradhan further submitted that the evidence of PW-1 Keshav does not give any particulars about the alleged ill-treatment or harassment or wilful conduct of the accused, which was likely to drive Bharati to commit suicide. He submitted that his evidence is totally vague. It is not stated by PW-1 Keshav that the deceased was beaten up and that she was not given food and clothes. He submitted that there is no perceptible nexus between the alleged cruelty and the death of Bharati. The learned counsel urged that the prosecution should have examined independent witnesses like some neighbours of the complainant to establish its case of cruelty. He submitted that though their statements were recorded, they were not examined by the prosecution which casts a : 12 : shadow of doubt on the prosecution story. He further submitted that the other evidence i.e. the evidence of the son and the neighbours of the complainant is also not sufficient to establish the allegations of cruelty and has been rightly discarded by the trial court. The learned counsel heavily relied on the judgments of the Supreme Court in Satvir Singh and others v. State of Punjab and another, (2001) 8 SCC 633 and Mungeshwar Prasad Chaurasia and another v. State of Bihar, (2002) 10 SCC 163. The learned counsel also placed reliance on the judgment of the Supreme Court in Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh, (2002) 5 SCC 371 to contend that offence under section 306 is also not made out because there is a gap between the last visit of the father to the house of the deceased and the date of the incident within which the lady could have thought over and reflected. The suicide by the deceased was not proximate to the last incident. Hence, the accused cannot be convicted under section 306 of the IPC. The learned counsel further contended that, in any event, no offence is made out against accused 2 Kisabai and, hence, her acquittal should be confirmed. 19. We are mindful of the fact that we are dealing with an appeal against acquittal. We have gone through : 13 : several judgments to which our attention has been drawn by Mr. Pradhan, the learned counsel for the accused. We will only refer to three of them because the principles are well settled. In Sheo Swarup’s case (supra) the Privy Council has held that "in an appeal against acquittal, the High Court has full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses". 20. In subsequent judgments, the Supreme Court has : 14 : consistently followed the above observations of the Privy Council. In Ganesh Bhavan Patel’s case (supra), the Supreme Court has further added that "where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the court below. In other words, if the main grounds on which the court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal". 21. In Tota Singh’s case (supra), the Supreme Court has further added that "where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous." 22. Keeping these principles in mind, we will appreciate the evidence. : 15 : 23. Before we deal with the evidence, we must refer to the inquest panchnama and postmortem notes. The inquest panchanama (Ex-8) notes that deceased Pramod was tied with a chadar to the stomach of deceased Bharati; that the police took out both the dead bodies from the well and that both the bodies were separated. It is specifically stated that blood had come out from the left eye to left ear of deceased Bharati due to nibbling by aquatic animals but, there were no other suspected marks. Her private parts were found to be intact. It is further noted that the eyebrows of both eyes of deceased Pramod were nibbled by aquatic animals but, there were no other suspected marks on his person. Post-mortem notes of deceased Bharati are at Ex-12. The post-mortem notes mention that there was small abrasion on left eyebrow. It is clearly stated that there were no other surface injuries. The cause of death is given as death due to asphyxia due to drowning. Post-mortem notes of deceased Pramod are at Ex-13. It is stated that there was abrasion over both eyebrows. It is clarified that there were no other injuries on his person. The cause of death is given as death due to asphyxia due to drowning. 24. The important witness of the prosecution is PW-1 Keshav. He has stated that the marriage of the deceased : 16 : and accused 1 took place in Jestha month. About 7 days after marriage, as per custom the deceased was brought to his house by his son PW-2 Prakash. She stayed there for about 5 to 7 days. She then went back to the house of her husband. She had again come to his house in Ashadha. She was sent back about 5 to 7 days thereafter. She was again brought to his house by his son PW-2 Prakash at the time of Divali festival. She stayed at his house for about 7 days i.e. till the festival was over. Then she was sent to the house of accused 1 with his son PW-2 Prakash. At that time, he had given a saree, a blouse and sweetmeats to the deceased. Then she was brought to his house in the month of Poushya. At that time, she stayed in his house for about one month. At that time, the deceased told him that her mother-in-law had told her that the clothes which were given to her at the time of Divali were of inferior quality and the sweetmeats brought by her were given by her to the cattle. She also told him that her mother-in-law was harassing her. PW-1 Keshav told her that everything will be alright after some days. Then, she was sent back to the house of her husband after Poushya month. 25. Then his son went to the house of the accused and brought the deceased to his house for Padva festival. At : 17 : that time, she stayed at his house for about 8 to 10 days. At that time, she told him that her husband used to say that she should bring money from her father as the other wives were bringing from their fathers. She told him that her husband had told her to bring Rs.5,000/- from her father. She also told him that her husband had told her that in case she does not bring the amount, he would not maintain her. According to PW-1 Keshav, he then collected Rs.5,000/- and handed over the said amount to the deceased for giving it to accused 1 and then she was sent back to the house of accused 1 with his son PW-2 Prakash. 26. Thereafter, in the month of Bhadrapada, the deceased was brought back to his house for delivery, by his son PW-2 Prakash and his wife. She then delivered a male child. For the naming ceremony of the child, accused 2 Kisabai and her elder daughter-in-law had come to his house. They had brought one gold locket. The child was named Pramod. Accused 2 and her elder daughter-in-law went back to their house. At the time of Akshaya Trutiya, the father-in-law of the deceased took the deceased and her child to his house. At the time of Panchami festival, the deceased and her child were brought back to his house by PW-1 Keshav. They stayed : 18 : there for about 8 to 10 days. At that time, she told him that her mother-in-law was harassing her and that he should make some ornaments for her child. Thereupon, he told her that it was not possible for him to make the ornaments as his financial condition was poor. He then purchased some clothes for his grandson and handed them over to the deceased. Then, he sent the deceased and her son with his son PW-2 Prakash to the house of the accused. 27. About 2 to 3 weeks thereafter, he had gone to the house of the accused. At that time, the deceased told him that her husband was insisting for a locket of half tola of gold for her son and a locket of two tolas of gold for himself. She also told him that her husband had told her that in case these ornaments were not given to him, he would not maintain her. He told her that he was not in a position to give those ornaments as his financial condition was poor. Ten to twelve days thereafter, at about 12 noon, the father of accused 1 had come to his house along with some other persons.