1 crapeal491-91.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.491 OF 1991 The State of Maharashtra ..Appellant Vs. 1. Ravindra Gajanan Mulay 2. Ratnakar Gajanan Mulay 3. Ashok Gajanan Mulay 4. Gajanan Baburao Mulay 5. Sau.Saraswati Gajanan Mulay. ..Respondents ......... Ms.U.V.Kejariwal, APP for appellant State. Ms.Varsha Palav, for respondent nos.1 to 3 and 5. ......... CORAM : D.B.BHOSALE & R.G.KETKAR, JJ. DATE : 3rd SEPTEMBER, 2010. JUDGMENT (PER R.G.KETKAR, J.) : This appeal is preferred by the State of Maharashtra challenging the judgment and order dated 1 st February, 1991 passed by the learned IIIrd Addl. Sessions Judge, Satara in Sessions Case No.100 of 1988. By that judgment, learned Sessions Judge acquitted all the accused of the offences punishable under Sections 498-A, 304-B and 306 read with 34 Indian Penal Code, 1860 (for short “IPC). The facts, giving rise to filing of present appeal 2 crapeal491-91.sxw by the State, are as under. 2] The case of the prosecution is that Nanda alias Nandini, daughter of PW 1 Dr.Ramchandra Eknath Gondkar married respondent no.1 Ravindra - original accused no.1. Respondent nos.2 and 3 (original accused nos.2 and 3) namely Ratnakar and Ashok are brothers of respondent no.1 and respondent no.4 (original accused no.4) and respondent no.5 (original accused no.5) are father and mother of respondent no.1. Respondents are hereinafter be referred as accused. PW 1 Dr.Ramchandra Gondkar had spent Rs.25,000/- towards the expenditure of marriage. Whenever Nanda used to come to her parents’ house, she used to inform PW 1 Dr.Ramchandra that she was asked to bring money from him and such demands were made by all the accused. She was not given food and was illtreated and tortured. 3] In the month of December, PW 1 Dr.Ramchandra went to bring Nanda for the month of `Paush’. At that time, Nanda told him that she was continuously illtreated. Nanda stayed with PW 1 Dr.Ramchandra for about 15 days and she was brought at the house of accused on 31 st December, 1987. At that time, PW 1 Dr.Ramchandra told accused to treat his daughter properly. After few days, he received letter dated 10 th January, 1988 from Nanda wherein she stated that the persons from the family of accused were trying to defame her. PW 1 Dr.Ramchandra claimed that accused no.1 had some love affair with one girl from Mumbai and this was reflected from some letters. Due to love affair of accused no.1, he did not like Nanda and was not treating her as his spouse. On 28 th January, 1988, 3 crapeal491-91.sxw PW 1 Dr.Ramchandra received a message that his daughter had died due to burns. He came to Karad with his wife, brothers, sisters and daughter and found dead body of Nanda. It was totally in burnt condition. In the morning of 29 th January, 1988 he lodged complaint with the police wherein it was set out that the marriage of Nanda and accused no.1 was performed six months back and she was illtreated for satisfying demands of money and ornaments. His daughter got fade up of the illtreatment. 4] On the basis of complaint, offences were registered against the accused and investigation was carried out. The dead body of Nanda was sent for post mortem. The Doctor, who conducted post mortem, opined that the death of Nanda was occasioned due to burns. The spot was visited and the articles from the person of deceased were seized and on completion of investigation charge sheet was presented in the court of Judicial Magistrate F.C., Karad. Since the offences were exclusively triable by the court of Sessions, learned Magistrate committed the case to the court of Sessions. The charge was read over to the accused. They pleaded not guilty to the charge. In order to establish the guilt of accused, the prosecution examined in all six witnesses as also documentary evidence. 5] The defence of the accused was that they never illtreated deceased Nanda. Right from the time of Nanda’s coming to her matrimonial home, Nanda used to sit idle and she did not use to speak with anyone. Due to her behaviour, accused were worried. They inquired that Nanda as to whether she should be referred to Doctor, however, Nanda did not speak freely or opened her mind with the accused. She appeared to be not happy. 4 crapeal491-91.sxw One anonymous letter in the name of Nanda was received which was a love letter. Accused also contended that when the incident took place, they all were not at home and, consequently, they are not responsible for the incident in question. 6] On the basis of material on record, learned Sessions Judge held that the prosecution established that the death of Nanda was suicidal one and that the prosecution proved that the death of Nanda was caused within seven years after her marriage. Learned Sessions Judge held that the prosecution failed to establish beyond reasonable doubt that Nanda was subjected to cruelty as per Section 498-A IPC. He also held that the prosecution failed to prove beyond reasonable doubt that Nanda was subjected to cruelty or harassment by the accused for or in connection with demands of dowry. Learned Sessions Judge held that the prosecution did not establish that accused abetted commission of suicide by Nanda and it was also not established that the accused acted in furtherance of their common intention to commit any criminal act. Consistent with these findings, the learned Sessions Judge acquitted all the accused. It is against this judgment and order, the State has preferred this appeal. 7] We have heard Ms.U.V.Kejariwal, learned APP for appellant State and Ms.Varsha Palav, learned counsel for respondent nos.1 to 3 and 5. During the pendency of appeal, respondent no.4 Gajanan Baburao Muley, father of accused no.1, died on 16 th September, 2000. Ms.Palav has tendered death certificate issued by the Chief Officer of Municipal Corporation, Karad to that effect. In view of this, appeal against 5 crapeal491-91.sxw respondent no.4 Gajanan, stands abated. 8] Ms.Kejariwal submitted that the prosecution has led cogent and reliable evidence to establish that accused have committed offence punishable under Section 498-A, 304-B and 306 read with 34 IPC. The prosecution has established that after marriage Nanda was subjected to cruelty which drove her to commit suicide. The evidence also establishes that Nanda was harassed with a view to coercing her to meet unlawful demand for money. The death of Nanda is caused by burns otherwise than under the normal circumstances within seven years of her marriage and the evidence on record clearly shows that soon before the death of Nanda, she was subjected to cruelty or harassment by accused in connection with demand of dowry. She, therefore, submitted that the order passed by learned Sessions Judge is perverse and is liable to be interfered with. 9] On the other hand Ms.Palav supported the impugned judgment and order and submitted that the view taken by learned Sessions Judge is a reasonable and possible view and no interference by this court is required. 10] We have considered the rival submissions made by learned counsel for the parties. With their assistance we have gone through the evidence on record. In order to bring home the guilt of accused, prosecution has examined PW 1 Dr.Ramchandra, father of deceased who had made complaint on 29 th January, 1988 exhibit 42. In his evidence, he deposed that he spent Rs.25,000/- in the marriage of Nanda. After the marriage, she went to her matrimonial home and stayed with the accused for seven 6 crapeal491-91.sxw days. At that time, Shakuntala, wife of brother of PW 1 Dr.Ramchandra also went with Nanda. After seven days, both Nanda and Shakuntala returned and stayed at her parents’ house for two weeks. After two weeks, accused no.2 Ratnakar came and took Nanda to her matrimonial home. She stayed at her matrimonial home till Diwali. 11] PW 1 Dr.Ramchandra went to the matrimonial home of Nanda at Karad for bringing her back for Diwali festival. At that time, accused no.5 Saraswati, mother-in-law of deceased, complained that Nanda do not know house hold matters namely, sweeping and cooking. She also complained that Nanda could not cook on Burshan gas. She also complained that they had spent more amount in marriage as compared to the amount spent from girl’s side. Accused no.5 further told him that more ornaments and clothes are to be given to accused no.1. Accused no.4 (now deceased) told him to provide all these articles otherwise, Nanda will be divorced. 12] PW 1 Dr.Ramchandra further deposed that when Nanda was brought to her parents’ house, she stayed there for about one month. At that time, Nanda informed him that she was asked to bring money and for that she was subjected to illtreatment. She told him that all accused used to illtreat her and also she was not provided food. He thereafter brought Nanda to her matrimonial home. However, accused asked him as to why he had brought Nanda without their asking him to bring her to matrimonial home. When he went to Karad in December, 1987, Nanda told him that accused were not giving food to her and were illtreating. They also asked her to bring golden and silver ornaments. 7 crapeal491-91.sxw 13] In the cross-examination, PW 1 Dr.Ramchandra admitted that he never made any allegations about illtreatment or demand for money in the letters sent by him to the accused. He further admitted that Nanda had received information that accused received two letters from her paramour. However, it was Nanda’s say that these letters were bogus and false. He admitted that in his complaint exhibit 42, he did not point out that accused informed him that Nanda was not able to cook food and could not sweep and he demanded ornaments or clothes, failing which Nanda will be divorced. He also did not mention in the complaint that when he took Nanda to her matrimonial home after Diwali, accused asked him as to why he brought Nanda back to her matrimonial home without their letter. He further admitted that there were no letters wherein demand was made by accused for clothes, money or golden ornaments. The demand was also not specific in figure. He denied that since Nanda was having some love affair, she used to sit silent or idle and did not mix with accused after her marriage. Perusal of evidence of PW 1 Dr.Ramchandra clearly indicates that it suffers from material omissions as also contradictions. 14] The prosecution also examined PW 2 Nirmala, mother of deceased. In the cross-examination she admitted that she had not gone to the house of accused except at the time of her marriage and after her death. When Nanda came to her parents’ house in the month of `Paush’, she was wearing duplicate ornaments. Nanda told her that accused have taken out her golden ornaments and replaced them with duplicate ornaments. She however admitted that she had not stated this fact to the police. She could not assign any reason as to why she had not stated to police that deceased 8 crapeal491-91.sxw Nanda was confined by accused in a room. She admitted that she could not assign any reason as to why it was not reflected in the statement of police that Nanda told her in the month of Paush that she was illtreated by not supplying food. 15] Though PW 3 Dhondiram deposed about the illtreatment, he also expressed inability to remember whether he had stated before the police about Nanda’s telling about her illtreatment. PW 4 Parvati admitted in the cross-examination that she did not know as to what PW 2 Dr.Ramchandra told her about the demand of money. PW 5 Vijaya made statement in the cross-examination that deceased Nanda informed that accused used to illtreat her by way of showing some letters, but, did not actually permit her to read those letters. However, PW 5 Vijaya could not assign any reason as to why the said statement was not recorded by the police in her statement. 16] Considering the evidence of these witnesses on the aspect of illtreatment, harassment and demand of dowry, the learned Sessions Judge came to the conclusion that the story of the prosecution, as deposed by the witnesses, was not believable. On the other hand, it has come on record that the deceased used to sit idle and she had no interest in living with accused. There is no direct evidence on the point of illtreatment by accused. The evidence of the witnesses on the point of illtreatment suffers from material omissions and, consequently, the conviction cannot be based upon such evidence. Learned Sessions Judge, accordingly, acquitted all the accused. 9 crapeal491-91.sxw 17] After hearing learned counsel for the parties and in the light of evidence on record, we are satisfied that the learned Sessions Judge has not committed any error in acquitting the accused. The view taken by the learned Sessions Judge is a reasonable and possible view. We are also of the opinion that it cannot be said that the findings and conclusions reached by the learned Sessions Judge should be termed as perverse, unsustainable and unreasonable. 18] In the result, Appeal fails and the same is dismissed. [R.G.KETKAR, J.] [D.B.BHOSALE, J.]