1 APEAL 563of93­158of94. vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.563 OF 1993 1. Shri. Namdeo Babu Chougule, age about: 24 years. 2. Shri. Babu Bhau Chougule, age: 40 years, 3. Sou. Mathura Babu Chaugule, age: 45 years. All residing at Pimple-Tarf-Thane of village Bhacharwadi, Taluka:Panhala, District: Kolhapur. .. Appellants -versus The State of Maharashtra .. Respondent. WITH CRIMINAL APPEAL NO.158 OF 1994. The State of Maharashtra .. Appellant. versus 1. Shri. Namdeo Babu Chougule, age about: 24 years. 2. Shri. Babu Bhau Chougule, age: 40 years, 3. Sou. Mathura Babu Chaugule, age: 45 years. All residing at Pimple-Tarf-Thane of village Bhacharwadi, Taluka:Panhala, District: Kolhapur. .. Respondents. 2 APEAL 563of93­158of94. Mr. Prem Keshvani, advocate i/b Mr. A. P. Mundargi, Senior Counsel- for the Appellants in Appeal No.563 of 1993 and for respondents in Appeal NO.158 of 1994. Mrs. G.P. Mulekar, APP for the Respondent State in Appeal NO. 563 of 1993 and for appellant in Appeal No.158 of 1994. CORAM: R.C. CHAVAN, J. DATED: 7th April, 2011 Oral Common Judgment. 1. Criminal Appeal No.563 of 1993 is filed by accused persons questioning their conviction by the learned Additional Sessions Judge, Kolhapur, for offences punishable under Sections 498-A read with 34 of the Indian Penal Code and Criminal Appeal NO.158 of 1994 is filed by the State, questioning acquittal of the accused for offence punishable under Section 306 of the Indian Penal Code. Both these appeals are being disposed of by this common judgment. 2. Facts which are material for deciding these appeals are as under: Victim Laxmi was married in the year 1981 to accused No.1 Namdeo son of accused Nos 2 and 3. She had no issue from marriage. According to prosecution, she was treated well for the first year and thereafter her illtreatment began. The victim was beaten up and asked to go to her parental house because her husband did not like her. 3 APEAL 563of93­158of94. According to prosecution, victim used to narrate about her illtreatment to her brother. On 1st January, 1985, it is alleged that the victim was driven out the matrimonial home after being beaten up by three accused persons. The victim came to her sister’s house at village Kotoli from her in-law’s house which is situated at Bhacharwadi. Her brother was serving as Sub Post Master in the post office at Majgaon. From sister’s house alongwith her sister- P.W.7- Sonabai and the victim went to nearby post office to make a telephone call to her brother. She telephoned her brother informing him that she had been beaten up and driven out of house. Victim’s brother P.W.-1 Sudhakar told victim to stay at the sister’s place. The appellants are alleged to have marched at the sister’s house at about 4 to 5.00 p.m. and took away victim after giving her one or two slaps. When the brother reached his sister P.W.7 Sonabai’s house, he was told that the victim had already been taken by in laws. 3. On the next day i.e. on 2nd January, 1985 he visited the house of in laws and he was told that the victim had not at all returned to their house. Thereafter, he went in search for the victim and the dead body of the victim Laxmi was sighted in a well on the 3rd January, 1985. The victim’s brother gave report on 4thJanuary, 1985 at which offence was registered. The dead body was fished out on the well and 4 APEAL 563of93­158of94. after preparing panchnama, dead body was sent for postmortem examination which was conducted on 5th January, 1985. In course of investigation, police performed necessary panchnamas, recorded statement of witnesses and on completion of investigation, sent chargesheet to the Court of Judicial Magistrate First Class, Panhala, who committed the case to the Court of Sessions at Kolhapur. The accused were charged of the offences punishable under Sections 498-A and 306 read with Section 34 of the Indian Penal Code. Since the accused pleaded not guilty, they were put on trial at which prosecution examination as many as 14 witnesses in its attempt to bring home the guilt of the appellants. 4. After considering the prosecution evidence in the light of defence of denial raised, learned Additional Sessions Judge convicted and sentenced the accused for offences punishable under Sections 498-A read with 34 of the Indian Penal Code and sentenced them to suffer R.I. for one year and fine of Rs.1,000/-each or in default to R.I. for three months. He acquitted them of the offence punisbale under Section 306 of the Indian Penal Code. Aggrieved thereby both parties have appealed. 5. I have heard learned Additional Public Prosecutor for the State and learned counsel for the original accused. With the help of both the learned counsel, I have gone through the 5 APEAL 563of93­158of94. entire record. 6. Evidence about abetment to commit suicide which learned Additional Public Prosecutor pressed into service is in the form of evidence of about telephone call, tendered by P.W. 1- Sudhakar victim’s brother. P.W.2 is Rajaram Patil, working as Sub Post Master at Kotoli from where telephone call was made by victim and P.W.7 Sonabai victim’s sister. P.W.8 -Sakhubai is the neighbour of P.W.7’s Sonabai. Learned APP submits that since the victim was subjected to such humiliating treatment and was dragged from the house of P.W.7-Sonabai, she was left with no other alternative but to commit suicide and therefore had possibly jumped in the well. 7. Learned counsel for the accused is right in submitting that all that has been proved by the notes of postmortem examination prepared by P.W.4 Dr. Vatkar, who states that dead body of a female was fished out from the well, is that the person had possibly died of drowning. Learned counsel for the appellant further submits that P.W.4 Dr. Vatkar, did not conclude that victim had committed suicide attributing drowning to a voluntary act on the part of victim of jumping into the well. It could have been by an accidental fall. There is nothing to show that the victim had in fact committed suicide. Therefore, according him, learned Additional Sessions Judge was right in holding that if suicide was not proved, 6 APEAL 563of93­158of94. abetment to commit suicide was not proved. 8. Learned counsel for the appellants further submits that in any case the illtreatment which is supposed to be the cause of victim being provoked to commit suicide is itself not proved. He pointed out that P.W.1 Sudhakar and P.W.2- Rajaram, who are the Sub Post Masters, have not been able to produce any record, about the telephone call made from one post office to another. In 1980s every call from one place to another was treated as trunk call and was normally recorded in the telephone exchange. Learned APP submitted that since both were Sub Post Masters, they might have allowed free call since called party was the Sub Post Master himself and therefore, call might have not been recorded. 9. Even if it is presumed for a while that call was not recorded, the facts which emerge from the evidence create a doubt about the reliability of story of illtreatment and beating. According to prosecution the victim had been driven from the house of her parents in law on the morning on 1st January, 1985. If that be so, it would be illogical for them to again come to the house of the sister of victim, for taking the victim back to their house. Victim’s brother P.W.1 Sudhakar, who had received telephone call, had gone to sister Sonabai’s house for taking the victim back to their house. P.W.7 Sonabai told him that the victim had been taken by the 7 APEAL 563of93­158of94. accused persons to the matrimonial home. P.W.7 Sonabai advised, her brother not to go alone to the house of accused persons but to carry panchas with him and therefore, he, accompanied by panchas, went to the house of accused person on 2nd January, 1985. Panchas have been examined as P.W.-3 Tukaram Chougule and P.W.5 Sarjerao Chougule. Both have not supported the account of P.W.1 Sudhakar. Presuming that Sudhakar had gone to the house of accused in presence of Panchas on 2nd January, 1985, it does not stand to reason that on their telling him that Laxmi had not at all come to their house, he would start search for Laxmi on his own, rather than approaching the police, since his own sister had told him on the previous day that accused persons had dragged Laxmi to their house. Therefore, ordinarily he would have rushed immediately to police, since he knew that the claim of the accused persons that Laxmi had not at all come to their house was false. He would have suspected foul play and would have approached police forthwith. But this did not happen. He claimed to have searched for Laxmi in the village, and on 3rd January, 1985, somebody found the dead body in a well at Bhacharwadi. Therefore, the story given by P.W.-1 Sudhakar, appears to be incredible . 10. Apart from this the account of victim being assaulted and dragged by the accused persons from the house 8 APEAL 563of93­158of94. of P.W.7, Sonbai is also difficult to digest. Both Sonbai and Sudhakar stated that Sonabai’s house is situated on a road where weekly market is held. 1st January, 1985, was weekly market day and P.W.8 Sakhubai stated that being bazar day, one could not hear even from a distance of 2 feet. It is, therefore, difficult to believe that in such a crowded place three accused persons would be able to drag the victim to their house inspite of protests by P.W.7 Sonabai and P.W.8 Sakhubai and none of the villagers would intervene or at least come forward to state that such an accident did take place. Therefore it seems that the story put up by P.W.7 Sonabai, P.W.8 Sakhubai that the victim had been illtreated by the accused persons before she met with her death is an after thought. 11. Even if it is presumed for a while that the victim was in fact slapped and taken by the accused persons to their house on 1st January, 1985 itself, there is nothing to show that she committed suicide or meet with her death soon thereafter as the dead body was found on 3.1.1985 with two days intervening. If the in-laws had driven out the victim, there would be absolutely no reason for them to pull the daughter in law to the matrimonial home. Therefore though the learned APP may be right in submitting that one of the accused persons had possibly slapped and dragged the victim 9 APEAL 563of93­158of94. and that victim was driven to commit suicide because of such humiliating treatment, that probability has not been turned into certainty by tendering unimpeachable evidence by the prosecution. On the other hand probability that entire story about victim having been slapped or dragged on the 1st January, 1985 is on shaky foundation and should not have been so readily accepted by the learned Additional Sessions Judge. 12. In the result, Criminal Appeal No.563 of 1993 is allowed. The conviction of the appellants therein for the offences punishable under Sections 498-A read with section 34 of the Indian Penal Code and sentence of R.I. for one year and fine of Rs.1,000/- each or in default of fine R.I. for three months, is set aside and they are acquitted of the said offences. 13. Criminal Appeal No.158 of 1994 is dismissed. (R. C. CHAVAN, J.)