IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1457 OF 2003 1.Shri Sambhaji Mahadeo Kadam, age 25 years, occupation- Agriculturist 2.Mahadeo Khandu Kadam, age 83 years, occupation- Agriculturist 3.Smt.Shantabai Mahadeo Kadam, age 65 years, occu.Household and agriculture All residing at Laxmi Takli, ...Appellants/ Taluka Pandharpur, Dist.Solapur Ori.Accd.1 to 3 Versus The State of Maharashtra, (through Pandharpur Taluka Police Station) ...Respondent ...... Mrs.Poonam P.Bhosale for Appellants. Mr.Y.S.Shinde, A.P.P. for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. AUGUST 30, 2006. AUGUST 30, 2006. AUGUST 30, 2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Appeal takes exception to the : 2 : Judgment and Order passed by the IIIrd Additional Sessions Judge, Pandharpur dated November 19, 2003 in Sessions Case No.79 of 2000. The Appellants/accused Nos.1, 2 & 3 were charge-sheeted and tried for offence punishable under Sections 498-A, 304-B, 306 read with Section 34 of the Indian Penal Code (hereinafter referred to as the ‘IPC’). 2. The Trial Court on the analysis of evidence on record has found Appellants guilty of offence punishable under Sections 498-A, 306 read with Section 34 of the IPC. All the accused are acquitted of the offence punishable under Section 304 read with Section 34 of the IPC. The State has not challenged that part of the finding reached by the Trial Court. Accordingly, the scope of present Appeal revolves around the correctness of the view taken by the Trial Court with regard to offence under Sections 498-A, 306 read with Section 34 of the IPC. 3. Briefly stated, the prosecution case is that accused No.1 who is the son of accused Nos.2 : 3 : and 3 was married to Sujata on 5th February 1999. The marriage was settled only after the complainant (PW 4)-father of Sujata agreed to pay dowry amount of Rs.80,000/- (Rupees Eighty Thousand), two tola gold and other household articles such as cupboard, cot, utensils. It is alleged that as per the agreement, complainant (PW 4) paid Rs.70,000/- (Rupees Seventy Thousand) and also gave articles referred to above including two tola gold at the time of marriage to the accused. It is alleged that on account of outstanding amount of Rs.10,000/- (Rupees Ten Thousand), soon after fifteen days from the date of marriage, the accused started causing harassment to Sujata with a view to coercing her and in particular, the complainant (PW 4)-her father to comply with the unlawful demand. It is alleged that since the payment of balance amount of Rs.10,000/- was not made, the harassment continued, and being fed up with that harassment, Sujata left her matrimonial house and stayed with her parents. It is alleged that the complainant paid the balance dowry amount of Rs.10,000/-. Even after payment of the balance dowry amount of Rs.10,000/-, the harassment to Sujata continued. : 4 : It is alleged that the accused continued harassment even after receiving the dowry amount on the ground that unwarranted publicity was given of the fact that the accused were insisting for payment of balance dowry amount. It is also the prosecution case that accused continued with the harassment of Sujata, as they suspected her character and chastity. It is alleged that Sujata left her matrimonial house and started staying with her parents. Eventually on 13th May 2001, on receiving message from accused persons, the complainant (PW 4) along with other common friends and relatives went to the house of accused along with Sujata. In the meeting, there was discussion about the cohabitation of Sujata with accused. It is alleged that in the meeting, accused No.2 uttered some insulting words to the complainant (PW 4), which resulted in exchange of hot words. Thereafter, accused No.2 filed criminal complaint in Police Station against the informant. However, subsequently, the disputes were amicably settled. It is stated that accused Nos.1 and 2 agreed to execute undertaking on stamp paper to look after Sujata properly when she would be in her : 5 : matrimonial house. Similarly, Sujata executed undertaking on stamp paper that she will behave properly with the accused. On executing the undertakings, Sujata went back to her matrimonial house on 15th May 2000 in the evening at about 5.30 p.m. It is alleged that on 17th May 2000, complainant (PW 4) received message from Shri Rajaram Dhondiba Gore (PW 1) about the death of Sujata on account of consumption of some poisonous pesticide. He was told that Sujata was admitted in Cottage Hospital, Pandharpur. The said information, in the first place, was received by Shri Rajaram Gore from one Chandan Shive, the neighbour of the accused. On receiving the information about death of Sujata, complainant rushed to the hospital. The dead body of Sujata was sent for post-mortem and on completing that formality, the body was handed over to the relatives. On the same evening, on 17th May 2000, funeral of Sujata was performed. Complainant (PW 4) went to the Police Station on 18th May 2000, at about 12.00 noon and registered First Information Report being Crime No.87 of 2000, alleging that Sujata committed suicide due to the harassment : 6 : caused to her by the accused persons with a view to coerce her and the complainant (PW 4) to meet unlawful demand and on account of failure to meet such demand. 4. The accused persons were arrested and after investigation, the case was committed to the Sessions Court. Charge came to be framed against the accused by the Trial Court, which reads thus: "C H A R G E I, S.W.Dhanokar, III Addl.Sessions Judge, Pandharpur, hereby charge you : 1) Sambaji Mahadeo Kadam, age 22 2) Mahadeo Khandu Kada, age 79, 3) Sou.Shantabai Mahadeo Kadam, age 62. All R/o.Laxmi Takli, Tal.Pandharpur, Dist.Solapur. As follows : That on or before 17.5.00, at village Laxmi Takli, Tal.Pandharpur, you accused no.1 being the husband, accused no.2 being the father-in-law and accused no.3 being the mother-in-law of deceased Sujata Sambhaji Kadam, in furtherance of your common intention, subjected her to harassment and cruelty, by saying that the deceased and her parents made a propaganda amongst the relatives that they were compelled to pay the Dowry settled at the time of marriage of deceased and thereby : 7 : committed an offence, p.u.s.498A R/W.34, I.P.C. That at the same time and place, the death of deceased Sujata Sambhaji Kadam was caused by poison otherwise than under normal circumstances, within 7 years of her marriage, and soon before her death, she was subjected to cruelty and harassment by you in connection with the demand of Dowry in furtherance of your common intention, and thereby you committed an offence, p.u.s. 304B r/w 34 I.P.C. That at the same time and place, you accused nos.1 to 3 in furtherance of your common intention, abetted the commission of suicide by deceased Sujata Sambhaji Kadam, by subjecting her to harassment and cruelty in pursuance of your unlawful demand of Dowry and by suspecting her character and, thereby you have committed an offence p.u.s. 306 R/w.34, I.P.C. within my cognizance. And I hereby direct that you be tried by me on the said charge." The accused denied the charge and claimed to be tried. 5. The prosecution in support of its case, examined complainant Harishchandra Adnyan Satpute (PW 4) as also Rajaram Dhondiba Gore (PW 1), Sukracharya Eknath Dethe (PW 3) and Kum.Ujwala Shivaji Ronge (PW 5) to prove the fact that Sujata : 8 : was subjected to cruelty by the accused, on account of which harassment, she committed suicide. 6. The Trial Court on analysing the evidence of these witnesses has found that their evidence was reliable and it was safe to accept the same to hold that the prosecution has established the fact that Sujata was subjected to cruelty by the accused persons, and that, on account of such harassment, she committed suicide. The fact that the death of Sujata was caused due to consumption of pesticide, has been proved in evidence by examining the doctor and producing the medical records. On the basis of evidence on record, the Trial Court ultimately recorded finding of guilt against the Appellants for offence punishable under Sections 498-A, 306 read with Section 34 of the IPC. The Trial Court passed the following operative order while deciding the concerned sessions case, which reads thus : "O R D E R 1. Under sec.235 Cr.P.C. each of accused is convicted for the offences punishable under sec.498A, 306 r/w 34 IPC. : 9 : 2. U/s.498A IPC accused no.1 is sentenced to suffer R.I. for two years and to pay fine of Rs.1000/- in default to suffer S.I. for three months. 3. U/s.498A r/w 34 IPC each of accused no.2 & 3 are sentenced to suffer S.I. for six months & to pay fine of Rs.500/- each & to pay fine of Rs.500/- each in default to suffer S.I. for one month. 4. U/s.306 IPC accused no.1 is sentenced to suffer R.I. for seven years and to pay fine of Rs.1000/- in default, to suffer R.I. for six months. 5. U/s.306 r/w 34 IPC each of accused no.2 & 3 are sentenced to suffer R.I. for tow years & to pay fine of Rs.500/- each in default to suffer R.I. for three months. 6. All the sentences shall run concurrently. 7. All the accused persons are acquitted of the offence punishable under sec.304B r/w 34 IPC. 8. Accused to surrender their bail bonds. 9. U/s.428 Cr.P.C. set off is granted for the period from 18.5.2000 to 5.9.2000 during which accused persons were in Jail. 10. All the household article seized from the house of accused which were given to deceased Sujata at the time of her marriage be returned to Harischandra Satpute, after expiry of period of appeal. Rest of the property i.e. empty tin of Endosulphan be destroyed after expiry of period of appeal." The above decision is the subject matter of : 10 : challenge in this Appeal. 7. After having considered the rival submissions and going through the record with the assistance of Counsel appearing for the parties, the first question that arises for consideration is: whether the approach of the Trial Court in appreciating the prosecution evidence which has come on record is inappropriate or manifestly wrong? 8. Insofar as this question is concerned, I have no hesitation in taking the view that the ultimate conclusion reached by the Trial Court to record finding of guilt against the Appellants that they had subjected Sujata to continuous cruelty after the marriage, which drove Sujata to commit suicide by consuming poisonous pesticide, those findings reached by the Trial Court will have to be accepted. I shall advert to the relevant evidence of the respective witnesses in this behalf a little later. 9. It needs to be noted that the fact that : 11 : Sujata died on account of consuming poisonous pesticide and her death was suicidal death, that finding reached by the Trial Court has not been assailed, in fact is unassailable one. For, there is clinching medical evidence to support the fact that Sujata died due to consumption of poisonous pesticide. In other words, her death was suicidal death. It is also indisputable that Sujata died within one year three months of the marriage with accused No.1. In this fact situation, the legal presumption available under Section 113-A of the Indian Evidence Act 1872 will come into play. It reads thus: "113-A.Presumption as to abetment of "113-A.Presumption as to abetment of "113-A.Presumption as to abetment of suicide by a married woman.- suicide by a married woman.- suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation.-For the purposes of this section, "cruelty" shall have the same meaning as in Section 498-A of the Indian : 12 : Penal Code (45 of 1860)." 10. In other words, the fact of Sujata having committed suicide and that happened within a period of seven years from the date of her marriage is established from the record. The other ingredient that needs to be established by the prosecution is: whether Sujata was subjected to cruelty by the accused. If that fact is held against the accused, the legal presumption under Section 113-A of the Indian Evidence Act, 1872 will leave no option to this Court, but to hold that the accused had abetted Sujata in commission of suicide, which she committed due to the continuous harassment and cruelty meted out to her by the accused. The expression "cruelty" is defined in Explanation to Section 498-A of the IPC, which reads thus: "Explanation.- For the purposes of this section, "cruelty" means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such : 13 : harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." 11. Keeping these provisions in mind, I shall now proceed to analyse the prosecution evidence to ascertain whether the prosecution has proved that the accused being husband and in-laws of deceased Sujata were responsible for subjecting Sujata to cruelty, which drove her to commit suicide. 12. The complainant (PW 4)/father of Sujata in his evidence has in the first place deposed that the marriage of Sujata with accused No.1 was settled on complainant agreeing to pay dowry amount of Rs.80,000/-, two tola gold and other household articles at the time of marriage. This agreement was reached in the meeting preceding the marriage which was attended by common friends and relatives including Sukracharya (PW 3). Complainant (PW 4) has also deposed that he paid sum of Rs.70,000/- and gave two tola gold and other household articles at the time of marriage, that amount of Rs.10,000/- was outstanding. He has then deposed that soon : 14 : after marriage, after about one month, when Sujata did not arrive, he went to the house of the accused. On reaching the house of accused, all the accused insisted for payment of balance dowry amount of Rs.10,000/- before Sujata was taken with him. He has then deposed that he promised to pay balance dowry amount of Rs.10,000/- at the time of Deepawali. On that assurance Sujata was allowed to accompany with him to his house. He has then deposed that Sujata informed him that because of non-payment of balance dowry amount of Rs.10,000/-, the accused were not providing her food properly and regularly and she was subjected to cruel treatment. He has deposed that Sujata had disclosed to him that she was subjected to ill-treatment soon after fifteen days from the date of marriage. He has then deposed that Sujata lived with the family in his house for about one month. He has then deposed that thereafter, he along with his wife and Sujata visited the house of accused to convince them that they should not subject Sujata to cruel treatment and he would pay Rs.10,000/- in Deepawali. He has deposed that he promised to give Rs.10,000/- because the accused had demanded the : 15 : same after she had visited their house. He has then stated that 15 days prior to Deepawali, Sukracharya (PW 3) had informed him that Sujata was subjected to cruel treatment by the accused and he should bring her back to his house. He has then stated that he (PW 4) along with Sukracharya (PW 3) went to the house of accused and brought back Sujata to his house. He has stated that even on this occasion, Sujata informed that accused were beating her and subjecting her to cruel treatment because of non-payment of balance dowry amount of Rs.10,000/-. He has then deposed that during Deepawali festival, he had received message from accused to send back Sujata to their house and pursuant thereto, Sujata returned to the house of accused along with his son Shivaji. He has then deposed that thereafter, at the time of Gudipadva, Sanjay Bhosle, relative of the accused came to his house and informed him that Sujata was subjected to cruel treatment. On receiving information, he (PW 4) and Sukracharya (PW 3) went to the house of the accused but Sujata was not found in the house. On enquiry with the accused they were informed that Sujata had gone along with her maternal uncle. He : 16 : has further deposed that he then deputed his younger son to enquire with the maternal uncle at Magarwadi. On enquiry, it was revealed that Sujata had not gone to Magarwadi. On receiving this information in the evening, complainant (PW 4) went to the house of the accused at 6.00 p.m. At that time, Sujata was found in the house and on enquiry, she informed that she had gone to Village Palshi. He has then stated that he then brought Sujata along with him to his house. It is further informed that while returning home, Sujata informed him that accused were subjecting her to cruel treatment because of publicity of their demand for balance dowry amount of Rs.10,000/-. He has stated that at Deepawali Festival of 1999, he (PW 4) and Sukracharya (PW 3) had gone to the house of the accused and paid balance dowry amount of Rs.10,000/- to the accused. He has then deposed that Sujata also informed that accused used to beat her, doubting her character and chastity. He has then deposed that Sujata stayed with him up to 13th May 2005. On 13th May 2005, on receiving message from the accused to send back Sujata to settle the dispute, complainant along with another friends and : 17 : relatives went to the house of accused. In the meeting, exchange of hot words took place between the complainant (PW 4) and the accused No.2. Accused No.2 filed complaint in the Police Station. He has stated that in the Police Station, accused Nos.1 and 2 promised to maintain Sujata properly. The accused Nos.1 and 2 also expressed willingness to execute undertaking on stamp paper. Accordingly, on 15th May 2000, undertaking was executed by accused Nos.1 and 2 as well as Sujata to maintain cordial relations. The undertakings on stamp papers have been proved in evidence and exhibited as Exhibits 26 and 28. Then he has deposed about having received information about death of Sujata from one Shri Gore (PW 1) on 17th May 2000. The complainant has been extensively cross-examined. The cross-examination of complainant (PW 4) was firstly directed as to the circumstances in which Sujata was married to accused No.1. He has stated that before the marriage was settled between the accused No.1 and Sujata, he had not proposed Sujata to any other person. He has stated that the family of accused owns about 30 to 40 acres of land at Village Takli. : 18 : The accused persons were related to him (complainant PW 4) through his co-brother Bhishmacharya. He has then stated that the accused No.1 is the only son of accused Nos.2 and 3 and for this reason, he preferred to settle the marriage of Sujata with accused No.1. In the cross-examination, he has spoken about the relations with Chandrakant Sawant, Mahadev Dethe and Sukracharya, who are the common relatives between the parties. He was then asked as to whether written list of articles to be given at the time of marriage was prepared, to which, he answered in the negative. He was asked whether he had furnished detailed information to the Police as to how he had collected Rs.70,000/-, to which, he answered in the negative. He was also asked whether he had furnished details to police as to from where he had collected balance dowry amount of Rs.10,000/- to which, he answered in the negative. He has deposed that on the household articles which were given in marriage by him or received by way of presents, name was inscribed. Paragraph 6 of the cross-examination is directed in respect of talks taken place before marriage for reaching agreement : 19 : of dowry amount of Rs.80,000/- and other articles. He has then admitted that no one from his family had gone to bring Sujata after initial period of one month from the marriage. It is stated that he had gone to the house of the accused after about one month to bring back Sujata to his house. On his request accused allowed Sujata to accompany him. Thereafter, Sujata lived with him and his family for one month. Suggestion was given to him that accused No.1 used to visit his house to meet Sujata during the said period of one month, which he has denied. He has deposed that during this period of one month, he did not make any attempt to meet accused Nos.1 or 2. He has then stated that when accused were repeatedly demanding balance dowry amount of Rs.10,000/-, he felt it necessary to arrange meeting of respectable persons. But except the meeting held on 13th May 2000, no other meeting was arranged to resolve the dispute. On questioning, he has deposed that on the next day after Sukracharya (PW 3) had informed him about cruel treatment given to Sujata by the accused, he had gone to the house of the accused. He has deposed that he was unable to tell the exact date : 20 : on which he paid Rs.10,000/- to the accused. He has also stated that he was unable to tell as to after how many days after Deepawali, he brought back Sujata to his house. He stated that Sujata was sent back to the house of the accused after receiving their message to send Sujata back. Thereafter, Sujata lived with accused till Gudipadva festival. During the stay of Sujata in the house of the accused, he had deputed his son to the house of the accused on two or three occasions. He stated that from Gudipadva up to the meeting held on 13th May 2000 Sujata lived with him and his family. Indeed, this witness has admitted that he has not mentioned in the Police complaint that accused used to beat Sujata by suspecting her character and chastity. Suggestion was also given to him that he was deposing false that deceased Sujata and Sukracharya (PW 3) informed him about cruel treatment given by accused on account of non-payment of balance dowry amount of Rs.10,000/-, which he has denied. Suggestion is also given to him that he was deposing false that inspite of payment of Rs.10,000/-, Sujata informed him that she was subjected to cruel treatment on the ground : 21 : as to why publicity was given to the demand made by the accused for balance dowry amount, which has been denied. Suggestion is also given to him that because of untimely death of his daughter, only with a view to harass the accused, he is deposing false. This is the tenor of the cross-examination. There is no serious challenge to this witness in the cross-examination to doubt his credentials. The only aspect that can be answered in favour of the accused is that this witness has accepted that in the police complaint, he did not mention that accused used to beat Sujata by suspecting her character