1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.349 OF 1991 The State of Maharashtra ..Appellant Vs. 1. Balu Mahadeo Ballal, 2. Raju Mahadeo Ballal, 3. Dilip Mahadeo Ballal, 4. Smt. Parvatibai Mahadeo Ballal, 5. Sou.Rukminibai Prakash Palsande ..Respondents ......... Mr.H.J.Dedhia, for appellant. ......... CORAM : D.B.BHOSALE & R.G.KETKAR, JJ. DATE : 1st SEPTEMBER, 2010. JUDGMENT (PER R.G.KETKAR, J.) : This appeal is preferred by the State of Maharashtra challenging the judgment and order dated 13 th February, 1991 passed by the IInd Addl. Sessions Judge, Satara in Sessions Case No.185 of 1989. By that judgment, the learned Sessions Judge acquitted the accused of the offences punishable under Sections 304B, 498-A, 306, 504, 323 read with 34 Indian Penal Code, 1860 (for short “IPC”). 2 2] It is the case of prosecution that marriage between accused No.1 Balu with deceased Pramila, daughter of P.W.1 Shankar, was performed in the year 1989. It was second marriage of Pramila as well as accused No.1 Balu. According to PW 1 Shankar, he had spent Rs.3,000/- in the said marriage and one Dayaram Karande was the mediator who fixed the marriage. According to him, at the time of marriage it was agreed that PW 1 Shankar will give dowry of Rs.1,200/- as also will bear the expenses of marriage. After the marriage, Pramila went to reside at the house of the accused. After two months, she came back to her parents’ house and told that accused are demanding money and utensils for starting a hotel. On that count, accused used to keep Pramila without food and beat her. All the accused subjected Pramila to cruelty for fulfillment of their illegal demands. She was fed up with illtreatment and harassment given by accused to her and, thereafter, at about 1 pm. on 10 th July, 1989, she poured kerosene on her person and set her on fire and thereby committed suicide. The fire was extinguished and Pramila was taken to hospital. In the hospital, her dying declaration was recorded by the Executive Magistrate. Subsequently, her statement was also recorded by the Police Head Constable and the same was treated as the FIR. Offence was registered against the accused as Crime No.296 of 1989 under Sections 498-A, 323, 504 read with 34 IPC. Pramila died on 11 th July, 1989, therefore, the offence was converted into Section 498-A, 306, 304B read with 34 Indian Penal Code. The inquest panchnama on the dead body of Pramila was drawn and her dead body was sent for post mortem. Spot panchnama was also drawn in the presence of panchas. The statements of witnesses were recorded and after completion of investigation, Charge Sheet was filed against the 3 accused for offence punishable under Section 304-B, 498-A, 306, 323, 504 read with 34 IPC. The case was committed to the court of Sessions as the offence under Section 304-B, 306 read with 34 IPC were exclusively triable by the court of Sessions. 3] The Charge was read over and explained to the accused, to which they pleaded not guilty. Their defence was of denial. According to them, they were falsely implicated in the case by the parents of Pramila. In support of the case, prosecution examined in all 11 witnesses. After considering the evidence on record, by the judgment and order dated 13 th February, 1991 the learned Sessions Judge acquitted the accused. It is against this judgment and order, the State of Maharashtra has preferred the above appeal. 4] We have heard Mr.H.J.Dedhia, learned APP on behalf of the State, at length. With the assistance of the learned APP we have gone through the evidence on record minutely. 5] It is not in dispute that Pramila died on account of burn injuries. The question is whether the death of Pramila was caused due to illtreatment and harassment from the accused for demand of dowry. As per the definition of dowry given in the Dowry Prohibition Act, the dowry means any property or valuable security given or agreed to be given either directly or indirectly on or before the marriage or any time after the marriage in connection with marriage of the concerned parties. In view of this, dowry would include property or valuable security given or agreed to be given in connection with 4 marriage. It will not include the demands which were not agreed to be given at the time of marriage. PW 1 Shankar, father of deceased Pramila, deposed that at the time of marriage it was agreed that Rs.1,200/- should be paid by him as dowry and that he has to bear expenses of marriage. He, however, did not depose that the said amount of Rs.1,200/- was not paid by him and, therefore, to fulfill the demand of dowry, there was illtreatment and harassment to Pramila. 6] In order to substantiate the Charge of illtreatment and harassment, the prosecution examined PW 1 Shankar Laxmanrao Shede, father of deceased Pramila at exhibit 19; PW 2 Vishwanath Mahadev Khamkar, maternal uncle of deceased at exhibit 32; PW 5 Mahadev Shivram Shede, cousin of deceased at exhibit 38; PW 6 Amit Shankar Shede, brother of deceased at exhibit 39; and PW 7 Mansing Rajaram Jadhav at exhibit 43. None of the prosecution witnesses have stated that the dowry was agreed to be given at the time of marriage and, as the same was not given, the accused illtreated and harassed the deceased Pramila. The prosecution witnesses deposed that the accused used to ask the deceased to bring money and utensils as the accused no.1 Balu intended to start a hotel. It is also worthwhile to note that in her dying declaration at exhibit 34 as also in the statement recorded by police which was treated as FIR exhibit 50, Pramila did not state anything about the demand of dowry by any of the accused. Thus, the prosecution failed to bring on record sufficient evidence about the commission of offence by the accused under Section 304B Indian Penal Code. 5 7] In so far as offence under Section 498-A IPC is concerned, the prosecution has to establish that the accused subjected the deceased to cruelty. Cruelty means any willful conduct which is of such a nature as to likely to drive a woman to commit suicide or to cause grave injury or damage to life, limb or health (whether mental or physical) of the woman; or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security on account of failure by her or any person related to her to meet such demands. We have, therefore, to find out from the evidence on record as to whether the deceased Pramila was subjected to cruelty by the accused. The oral evidence was brought on record by the prosecution, as set out earlier, by examining the relatives of the deceased as also the neighborer. Perusal of the deposition of these witnesses will indicate that the accused were allegedly harassed Pramila and beaten her on the ground of not preparing good food or some other domestic reasons. These witnesses do not corroborate each other or the material particulars. 8] In so far the evidence of PW 1 Shankar is concerned, he did not depose that prior to two months of the death of Pramila, PW 2 Vishwanath left Pramila to the house of PW 1 Shankar. On the other hand, PW 2 Vishwanath deposed that prior to two months of the death of Pramila, she had came to his house at village Varul Sangarwadi as she was driven out from the house by the accused. Pramila stayed at his house and, eight days thereafter, came to the house of her parents. Thus, there is variance in the evidence of PW 1 Shankar and PW 2 Vishwanath. Even in her alleged dying declaration exhibit 34 and FIR exhibit 50, Pramila did not set 6 out that she was driven out by the accused from their house in the night and she went at the house of PW 2 Vishwanath. 9] In so far as the dying declaration exhibit 34 is concerned, perusal of the said statement indicates that the person who recorded the statement, initially wrote name as Bhagirathi at the top which was scored and, thereafter, name of Pramila was written. At the space of thumb impression of Pramila, said person shown to have written name as Sharmila which was, subsequently, corrected as Pramila. The correction at the top and at the bottom of the statement creates doubt about its genuineness. It is to be appreciated on the backdrop of the fact that Pramila received 100% burn injuries. Perusal of statement at exhibit 50 also creates doubt about its recording at 1:30 pm. PW 4 Dr.Avinash Ashtekar deposed that Pramila was admitted in the hospital at about 3 pm and, thereafter, he gave intimation to the police. Considering the cumulative effect of all these circumstances, the accused cannot be convicted on the basis of dying declaration exhibit 34 as also statement at exhibit 50. 10] During the course of evidence of PW 1 Shankar, he was shown various letters exhibit 22 to 27 written by him to accused No.1 Balu. In all these letters, PW 1 Shankar did not make any reference about the illtreatment to his daughter Pramila. On the contrary, said letters indicate that the relationship between the deceased Pramila and accused No.1 Balu was normal. PW 6 Anil Shende produced letter dated 13 th June, 1989 sent by him to accused no.1. Even in this letter, there is no reference to any 7 harassment or illtreatment to the deceased. It therefore cannot be said that the prosecution established that there was willful conduct on the part of the accused to harass and illtreat deceased Pramila with a view to coercing her to commit suicide. In so far as offence under Section 306 IPC is concerned, the prosecution has to establish that accused abetted commission of suicide by deceased Pramila. It is not disputed that the death of Pramila was caused due to 100% burns. The defence has not disputed the report of the chemical analyser exhibit 17. The said report shows that the residues of kerosene were detected on the burnt pieces of Saree and petticoat of the deceased Pramila and were also found on the earth on the spot where the incident occurred. Considering the material on record, it is clear that Pramila burnt herself by pouring kerosene and committed suicide. The prosecution has not brought on record sufficient and cogent evidence to prove that the accused subjected the deceased Pramila to cruelty as per Section 498-A IPC. There is no direct evidence on record by the prosecution to establish that accused forced Pramila to commit suicide. It therefore cannot be said that the evidence brought on record which establishes the guilt of the accused. 11] After considering the material on record, learned Sessions Judge acquitted the accused. After re-appreciating the evidence on record, we find that the prosecution has not brought on record sufficient and cogent evidence to establish the guilt of the accused. The view taken by the learned Sessions Judge is a possible and reasonable view. It cannot be said that the findings recorded by the learned Sessions Judge are perverse. 8 12] In the result, we find no merit in the appeal and the same is dismissed. [R.G.KETKAR, J.] [D.B.BHOSALE, J.]