-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 274 OF 2006 APPEAL NO. 274 OF 2006 APPEAL NO. 274 OF 2006 Dist: Solapur 1. Dilip Dattatraya Gaikwad, age 42 years Occ. Agri.& Dhaba Business 2.Smt. Vijaya Dilip Gaikwad, age 32 years OCcu. Agri.& Household. All R/o Tungat, Tal. Pandharpur Dist. Solapur : Appellants (At present in Pandharpur Jail) (orig.accused no.1 & 4) v/s The State of Mahrashtra : Respondents Shri P.R. Arjunwadkar advocate for appellants Ms. Rajeshree Gadhvi A.P.P. Coram : R.S. Mohite,J Date:10.7.2008 P.C. 1. This is an appeal filed by Dilip Gaikwad and Vijaya D. Gaikwad (original accused nos. 1 and 4 respectively). The impugned judgment and order passed by additional sessions Judge Pandharpur on 27.2.2006 in Sessions case no. 28 of 2005. By the impugned judgment and order the trial court convicted original accused no. 1 and 4 for committing offence punishable under sec. 306 r/w 34 of Indian Penal Code and sentenced them to undergo R.I.for five years each and to pay a fine of Rs. 500/- each in default to undergo S.I. for three months. The aforesaid accused no. 1 and 4 were further convicted for the offence punishable under section 498A r/w 34 of I.P.C. and -2- sentenced to undergo R.I.for three years each and to pay fine of Rs. 500/- each in default to undergo S.I.for three months. The trial court acquitted accused no. 2,3 and 5 of committing the same offence. 2. The brief facts of the prosecution case were as under. (a) Accused no.1 Dilip D. Gaikwad was the husband of accused no.4 Vijaya Gaikwad. Accused no.2 Dattatray was his father, accused no.3 Hirkan was his mother and accused no.5 Avadumbar was his brother. The family of the accused was residing at village Tungat Tal Pandharpur, Dist. Solapur. (b) The deceased Bhageshri was the sister of PW4 Jitendra Sarde who is complainant in this case. While accused no.2 was married to accused no.4, her family through agreed arrangement got her married to accused no.1. The record indicates that the factum of the first marriage was known to the family of the deceased and in order to safeguard the interest of the deceased the permission of accused no.4 was taken for the marriage. The brother of the deceased Jitendra, at the time of settlement of marriage, obtained stamp paper from accused no.4 to the effect that Bhageshri -3- was to have half share in the estate of the accused no.1. Jitendra admitted in his cross examination that the marriage of accused no.1 with deceased was performed with the permission of accused no. 4 Vijaya. (c) That, after the marriage in 1998, for one year, Bhageshri was treated well. Sometime after her marriage i.e.in the year 1999 she started complaining that there was ill treatment from her husband, from her mother in law and brother in law. As per the evidence of her two uncles PW2 Bhalchandra, PW3 Babsaheb and PW4 Jitendra she told them about ill treatment. The most detail evidence in this regard is the evidence of her real brother PW4 Jitendra. One year after the marriage there was a demand of Rs. 2 lakhs for obtaining permit room of Dhaba. PW4 Jitendra states in his evidence that his sister told him about being ill treated, starved and bitten. She told him that she used to clean utensils of dhaba. The evidence indicates attempts to pursuit accused no.1 and family members 2 and 3 of the deceased properly. There was however no improvement and thus situation ultimately resulted in Bhageshri lodging complaint u/s 498A with the police station. This -4- complaint was filed on 12.3.2004. After the complaint Bhageshri came to her parental place and resided there for 2 months. Accused no.1 then came to her parental place and after seeking pardon took her back to his marital home. One month thereafter the deceased was treated properly and thereafter again harassment started and a demand for Rs. 2 lakhs was agin made. Bhageshri was sent bank to her parental place without children. The proceeding was filed in the Tuljapur court and court handed over custody of children to Bhageshri. Thereafter again accused came after about 1 1/2 months, sought pardon and took away the deceased and the children to the marital home. After 3-4 months there was again harassment and in such circumstances, according to the prosecution, on 16.9.2004, the deceased powered Kerosene on her and set herself on fire. (d) At the relevant time PW6 was a police officer attached to the Pandharpur police station. He recorded the complaint which was filed by PW5 Jitendra. He went to the spot and performed panchnama. From the spot he got one plastic can, match box, pieces of burned cloths and ash. The accused were arrested on same day under arrest panchnama ( Ex,16). He then recorded statement of -5- several witnesses on 20.4.2004. He arrested accused no.5 under separate panchnama. on 29.2.2004 he send an application for the certified copy of C.R. 56/04 which was registered against the accused previously. He sent a letter to Tahsildar for drawing sketch of spot. He sent request to C.A. and ultimately after completion of investigation he filed charge sheet, against accused in the court on 20.11.2004. 3. In due course the case was filed to the court of Sessions of trial and was numbered sessions no. 28/05. The trial court framed charges and trial commenced to prove the prosecution case. The police examined 6 witnesses. Of these PW1 was one inspector of spot panchnama(Ex.9), PW2 was uncle of deceased, PW3 was another uncle of the deceased, PW4 was brother of the deceased, PW5 was the investigating officer of previous offence, PW6 investigating officer in the present offence. After taking into account the oral and documentary evidence, the trial court convicted the accused persons as aforesaid. 4. I have heard both the sides and perused entire record. At the very outset it is fairly conceded that there is absolutely no overtact of any kind of harassment or cruelty right against accused no. 4 -6- Vijaya who is wife of accused. The conviction under 498A must be set aside on legal ground that accused no.1 was not the husband of the deceased. It is admitted by the brother of the deceased they wee aware that accused no.1 had first wife Vijaya. The second marriage is not permitted by law and therefore in law the accused no.1 was never the husband of deceased Bhageshri. On this ground alone conviction u/s 498A must be set aside. 5. In so far as conviction u/s 306, the evidence of cruelty is rather vague. No specific acts as against the appellants has been given by either PW2 Bhalchandra , PW3 Babsaheb, PW4 Jitendra. No date of alleged act of harassment is to be in their evidence. The net result of this is there is nothing on record to show that the harassment was proximate to the commission of suicide it is well settled that for conviction under 306 harassment and ill treatment which would amount to abatement to suicide must be proximate to the actual suicide. This being the situation, it will not be possible to sustain the conviction u/s 306 also. 6. As regards the allegations of cruelty PW2 talks about the deceased telling him that the accused -7- asked him to clean utensils, starve her and confine her in a room. This was told to him one year after the marriage i.e.in the year 1999. These allegations cannot be said to be proximate to the death. PW3 Babasaheb talks about the disclosure in 1998. According to him the deceased told him that there was ill treatment to her from husband, mother in law and brother in law and also told him that they told him that they were demanding Rs. 2 lakhs for permit room. These disclosures are also not proximate to the suicide committed in the year 2004. PW4 Jitendra Sarde has no doubt give more detail account but as regards disclosure of his sister pertaining to being starved, being bitten there is no particular incident referred to and allegations are general in nature. It thus appear from the record that there was serious marriageable discard and that the deceased was unhappy and depressed. To some extent it appears that her own people got her married and after making certain property arrangement with full knowledge that accused no.1 had wife who was living with. The record also indicates that the deceased was being treated for depression from 2001 till 2003. The defense have examined psychiatric under whom the deceased was receiving treatment. This witness was DW2 Dr. Dilip Shankar Burte. The doctor has given detailed account -8- of her medical history which continued from 2001 till 16.8.2003. The deceased was also given Shock treatment on 6 dates. 7. In the aforesaid back ground, at the highest it can be said that there must be a degree of ill treatment which may amount to cruelty on occasion however as held by apex court in the recent judgment of Sohan Raj Sharma vs State of Haryana 2008(3) Supreme 89, "The mere fact that the husband treated the deceased wife with cruelty is not enough." In para 11 of the said judgment, the Apex court, following the ratio of earlier judgment of Apex court in the case of Mohinder Singh vs State of M.P. (1995 AIR SCW 4570) observed as under, "In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough." In the present case there is absolutely no evidence to show any direct or indirect acts from allegations of harassment and cruelty. There is no evidence whatsoever to indicate that the appellants had committed any direct or indirect act of incitement tot he commission of suicide. 7. In the result the appeal is allowed. The -9- impugned judgment and order is quashed and set aside and the appellants are acquitted of all charges. Find if any paid by the accused will have to be refunded. Appellant no.1 will be released forthwith unless required in some other defense. Appeal stands dismissed. (R.S. Mohite, J)