[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.83 OF 2000 1. Mr.Avinash Gundhar Patil ] Age 28 years. ] 2. Sou.Malati Gundhar Patil ] Age 55 years, ] Both residents of New Vasahat ] Vadgaon, Taluka Hatkangale ] Dist.Kolhapur ]..Appellant Vs. State of Maharashtra ] at the instance of Peth Vadgaon ] Police Station ]..Respondent .... Mr.N.R.Agandsurve along with Mr.B.R.Patil advocate for appellants Mr.V.B.Konde-Deshmukh A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JUNE 12, 2008 DATE : JUNE 12, 2008 DATE : JUNE 12, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Through this Appeal, the appellants-original accused Nos.1 and 2 have challenged the judgment and order dated 21.1.2000 passed by the learned 3rd Addl. Sessions Judge, Kolhapur in Sessions Case No. 51 of 1996. By the said judgment and order, the learned Judge convicted both the appellants for the offence under Sections 498-A and 306 r.w. 34 of IPC. For the offence under Section 498-A r.w. 34 of IPC, appellant no.1 was sentenced to one and [-2-] half year RI and fine of Rs.500/- i/d RI for three months and appellant no.2 was sentenced to RI for one year and fine of Rs.500/- i/d RI for three months. For the offence under Section 306 r.w. Section 34 of IPC, the appellant no.1 was sentenced to RI for five years and fine of Rs.500/- i/d RI for three months and the appellant no.2 was sentenced to RI for three years and fine of Rs.500/- i/d RI for three months. The learned Judge directed that both the sentences of both the appellants shall run concurrently. 2. The case of the prosecution is that complainant PW 2 Babgonda Patil is father of Suvarna (deceased). On 3.6.1993, Suvarna was given in marriage to appellant no.1. Thereafter Suvarna was also called as Jyoti alias Rani. Appellant no.2 is the mother of appellant no.1. After the marriage, Suvarna went to reside with the appellants at Wadgaon. Thereafter, Suvarna became pregnant and in 7th month, she was brought by the complainant to his house for delivery. On 2.6.1994, Suvarna gave birth to a son. The further case of the prosecution is that when Suvarna went to her matrimonial house for delivery, the accused had [-3-] made demand for gold Bilwar of two tolas. Ten days prior to the incident, Suvarna informed the complainant that she was harassed and illtreated by the accused as "gold Bilwars" were not given. At that time, she also informed the complainant that her husband had purchased Tempo Trax on loan and for that purpose the complainant should provide him cash of Rs.60,000/-. Suvarna also told him that she was harassed and illtreated on account of demand of cash of Rs.60,000/-. On 7.4.1995 the complainant received letter from his daughter and on the next day i.e. on 8.4.1995 he received telephonic message from the appellant no.1 that they should come immediately. Hence, they left for Wadgaon. When they reached there, his relatives informed him that his daughter Suvarna had expired as she had committed suicide by hanging. After, the post mortem was conducted, the complainant performed funeral of Suvarna. Thereafter, he lodged the FIR against the accused persons. After completion of investigation, the charge sheet came to be filed. 3. Charge came to be framed against the appellants-original accused under Sections 498-A, [-4-] 304-B and 306 r.w. Section 34 of IPC. Appellants pleaded not guilty to the said charge and claimed to be tried. Their defence is that of total denial and false implication. Looking to the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced both the appellants as stated in para no.1 above. Hence, this appeal. 4. I have heard the learned counsel for the appellants and the learned APP for the State. I have perused the impugned judgment and order as well as the evidence in this case. After giving anxious consideration to the matter, I am of the opinion that this appeal deserves to be allowed. 5. In order to prove its case, the prosecution has examined 11 witnesses. PW 2 Babgonda Patil is the father of Suvarna, PW 4 Mangal is the mother of Suvarna, PW 3 Rajendra, PW 5 Prakash, PW 8 Laxmibai and PW 9 Ramesh are the relatives of Suvarna. 6. In the present case, Doctor who conducted the post mortem has not been examined. The post mortem notes did not show the cause of death. However, it is an admitted fact that though ligature mark was [-5-] found on the neck, no other injury was found on the body of the deceased. Based on this, it is the prosecution case that Suvarna committed suicide on account of illtreatment and harassment by the accused persons on account of demand of "gold bilwar" of two tolas and cash of Rs.60,000/- not being met. 7. I may state here that it is not the prosecution case that any of the accused persons were present in the house when the incident took place. 8. Complainant PW 2 Babgonda Patil has stated that he is father of Suvarna (deceased). He further stated that on 3.6.1993, Suvarna was given in marriage to appellant no.1. Appellant no.2 is the mother of appellant no.1. After the marriage, Suvarna went to reside with the appellants at Wadgaon. Thereafter, Suvarna became pregnant and in 7th month, she was brought by the complainant to his house for delivery. On 2.6.1994, Suvarna gave birth to a son. The further case of the prosecution is that when Suvarna came to her mother’s house for delivery, the accused had made demand for gold Bilwar of two tolas. Ten days [-6-] prior to the incident, Suvarna informed the complainant that she was harassed and illtreated by the accused as "gold Bilwars" were not given. At that time, she also informed the complainant that her husband had purchased Tempo Trax on loan and for that purpose the complainant should provide him cash of Rs.60,000/-. Suvarna also told him that she was harassed and illtreated on account of demand of cash of Rs.60,000/-. On 8.4.1995, the complainant received telephonic message from appellant no.1 that they should come immediately. Hence, they went to Wadgaon. When they reached there, his relatives informed him that his daughter Suvarna had expired as she had committed suicide by hanging. Thereafter, after the post mortem was conducted, the complainant performed funeral of Suvarna. Thereafter, he lodged the complaint against the accused persons. 9. In the present case, it is seen that there is delay in lodging FIR. The complainant received message on telephone in the morning. He reached Wadgaon in the after noon at about 2.30 p.m. The complainant admits that police were present there. He has also admitted that police had made enquiries [-7-] with them. However, they did not disclose anything to the police about any demand by the accused persons or about any torture or harassment by the accused persons to Suvarna. Complainant has specifically admitted that the police had enquired with them as to whether they have any grievance or complaint against the accused. However, the complainant stated that they did not lodge any complaint against the accused at that time. Thus it is seen that even though the police had approached them and made detail enquiries with them, complainant and his relatives did not inform the police about any demand by the accused or any illtreatment or harassment to Suvarna. They have in fact stated that they have no grievance or complaint against the accused and they did not lodge any complaint against them at that time. In such circumstances, lodging of FIR after funeral has taken place, creates grave doubt in the mind regarding the prosecution case. 10. The learned APP has submitted that besides the evidence of complainant, other witnesses who are relatives of the complainant, have also been examined by the prosecution. However, it is seen [-8-] that the statement of these witnesses came to be recorded only after recording of FIR about which I have already made observations above. However, I shall still deal with the evidence of the prosecution witnesses. 11. On perusal of the evidence of the witnesses, it is seen that demand was made only after Suvarna came to her mother’s house for delivery. P.W.3 Rajendra who is the maternal uncle of deceased, has stated that 4 to 5 days before Suvarna’s death, he met Suvarna when she was going to attend her computer class. At that time, Suvarna informed him that her husband and mother in law, were torturing her on account of cash. This witness has not enquired with Suvarna as to for what the cash was being sought or any other details. He has not made any enquiries at all with Suvarna regarding the demand or illtreatment to Suvarna. Not a single question has been asked by him to Suvarna and when Suvarna informed him about these facts, no conversation has taken place between this witness and Suvarna. This witness has admitted that this was for the first time he came to know about such demand by the accused persons. Looking to overall [-9-] conduct of this witness, I find his conduct to be unnatural and hence, I find it unsafe to rely on his testimony. It is also pertinent to note that there is no reference to any demand of gold bilwar. Looking to all the facts, I do not find his evidence to be reliable. The evidence of PW 5 Prakash and PW 8 Laxmibai is on similar line as that of PW Rajendra. 12. PW 4 Mangal who is the mother of Suvarna, has stated that there was demand of gold Bilwar. She has stated that after her daughter came to her parental house for delivery, her daughter informed her about demand of gold Bilwar. However, this witness has not specifically stated that her daughter informed her that there was any illtreatment or harassment to Suvarna on account of demand of gold Bilwar not being met. Thereafter PW 4 Mangal has stated that 8 to 10 days prior to the incident, her husband had been to the matrimonial house of Suvarna and when her husband came back, he informed her that accused were demanding cash of Rs.60,000/- for Tempo Trax and Bilwar of two tola gold and on account of this, the accused were torturing Suvarna. PW 4 Mangal also stated that [-10-] they received one letter Exh.18 from Suvarna. I have perused the said letter. The said letter is dated 31.3.1995 i.e. just a week prior to the incident. This letter was received by the complainant one day prior to the death of Suvarna. On perusal of the letter, it is seen that there is no whisper in the said letter of any demand of gold Bilwar or cash of Rs.60,000/-. So also, there is no whisper of any illtreatment or harassment to Suvarna by any of the accused persons. There is also no request made by Suvarna that her parents should give Rs.60,000/- or gold Bilwar. At the end of the letter, Suvarna has specifically stated that everything is fine at her end. Had there been any demand or illtreatment or harassment on account of demand not being met, the deceased would have definitely made a mention of the same in the letter which was written just a week prior to the incident. However, the said letter is an ordinary letter without any allegations against the accused or reference to any demand or illtreatment or harassment. This letter itself belies the case of the prosecution that soon before death of Suvarna there was demand by the accused persons and illtreatment and harassment to Suvarna as the [-11-] demand was not met. 13. The prosecution has also relied on Exhibit-20 which is a letter written by Suvarna. The said letter is dated 12.2.1995 i.e. it was written approximately one and half month prior to the incident. According to the prosecution, it is the suicide note written by Suvarna. The note is addressed to the appellant no.1. I have carefully perused the suicide note. In the said note, there is no reference of any demand by the accused persons of any kind. There is also no reference to illtreatment or harassment by the accused persons to her. In fact, in the said letter, the deceased has stated that hereafter she would not ask the accused to get her anything. This shows that in fact, it was not the accused persons who were making any demand but it was deceased who was making demand from her husband, due to which she felt that her husband was being troubled. Thus suicide note which has been strongly relied upon by the prosecution, does not support the prosecution case that there was any demand by the accused persons and as it was not met Suvarna was illtreated by the accused persons. [-12-] 14. The evidence on record also shows that a letter was written by the complainant to accused no.1. The said letter is dated 10.2.1995 i.e. about two months prior to the incident. The said letter is at Exhibit-23. In the said letter, no reference is made by the complainant to any demand by the accused persons or any illtreatment or harassment made to Suvarna by the accused. Exhibit-24 is a letter written by appellant no.1-accused no.1 to Suvarna at the time when she had gone to her matrimonial house after delivery. The case of the prosecution is that demand was made by the accused persons for gold Bilwar when Suvarna had gone to her parental house for delivery. Perusal of the letter Exh.24 shows that there is absolutely no demand made by the accused persons and in fact, the said letter exhibits great concern on the part of the appellant about the health of Suvarna. In the said letter, appellant no.1 i.e. husband of Suvarna has stated that she should take her medicines on time, she should not worry about anything, she should not take any trouble. Exhibit-28 is a letter which is written by brother of deceased to accused. In the said letter also, [-13-] there is no reference to any demand or any illtreatment or harassment to his sister by the accused persons. 15. Lastly, I may refer to letter Exhibit-29 which has been written by the complainant to the appellant no.2 the mother in law of deceased Suvarna. In the said letter also, there is no reference to any demand or illtreatment. However, on the other hand in the said letter, the complainant has stated that his daughter Suvarna was remembering them (appellants) ever day and that his daughter used to speak about appellants with great love and affection and she used to narrate with great happiness about her life in her matrimonial house. Looking to all these letters which are on record, it does not appear that there was any demand by the accused persons or any illtreatment or harassment by the accused persons to Suvarna as the demand was not being met. 16. As observed earlier when the complainant had been specifically asked by the police after the death of Suvarna, whether he had any grievance or complaint against the accused persons, the [-14-] complainant did not make any grievance or complaint and only after the funeral took place, he lodged the complaint against the accused persons. The delay in lodging the complaint has not been satisfactory explained. Delay in lodging the complaint raises serious doubt in the mind and this delay lends great credence to the case of the accused that they have been falsely implicated in the present case as an after thought. Looking to the evidence on record, I am of the opinion that the prosecution has not proved its case against the appellants. 17. In the result, the impugned judgment and order of conviction and sentence dated 21.1.2000 for the offence under Sections 498-A and 306 read with Section 34 of IPC imposed on both the appellants by the learned 3rd Addl. Sessions Judge, Kolhapur in Sessions Case No. 51 of 1996, is quashed and set aside. They are acquitted thereunder. The appellants are on bail. Their bail bonds shall stand cancelled. Fine if any paid by the appellants, shall be refunded to them. 18. Appeal is allowed. [-15-] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]