1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1031 OF 2010 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2010 The State of Maharashtra ..Applicant [Ori. Complainant] Vs. Nilesh Jagannath Vartak and three others ..Respondents [ Ori.Accused 1 to 4 ] .... Ms. P.H.Kantharia APP for the Applicant-State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : JULY 07, 2010 ORAL ORDER: [PER SMT.V.K.TAHILRAMANI,J.]: 1 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 18.12.2009 passed by the learned Additional Sessions Judge, Palghar in Sessions Case No.173 of 2007. By the said judgment and order, the respondents i.e. original accused nos.1 to 4 came to be acquitted of the offences under Section 304-B r.w. 34 of the IPC. 2 2 The prosecution case briefly stated is as under: The marriage of accused no.1 Nilesh with Sheetal d/o PW 1 took place in the year 2000. Accused no.2 Vikas is the brother of accused no.1, accused no.3 Jankibai is the mother of accused no.1 and accused no.4 Shalini is the sister of accused no.1. After the marriage, the accused started harassing Sheetal on account of dowry, hence, on 1.12.2006, Sheetal consumed insecticide and she died due to consumption of poison. 3 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Additional Sessions Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Additional Sessions Judge does not call for any interference. 4 It is pertinent to note that the only offence with which respondents-accused persons have been charged is under Section 304- B of IPC i.e. dowry death. One of the necessary ingredients of this 3 offence is that soon before death there should be ill treatment or harassment in connection with any demand for dowry. Keeping this in mind, we have proceeded to evaluate the evidence in this case. 5 PW 1 Deepika Vartak is the mother of Sheetal (deceased). She has admitted that in their community, there is no custom of dowry. In her entire evidence, she has not made any reference to any amount being demanded by the accused persons for or in connection with dowry. According to Deepika, upto the birth of son to Sheetal, there was no illtreatment to Sheetal. The son was born 13 months after the marriage. From this piece of evidence, it is clear that for about 13 months, there was no illtreatment to Sheetal. Deepika has admitted that about 1 year from the marriage of Sheetal with accused no.1, there was no harassment to Sheetal. She has admitted in her cross examination that since one year after the marriage, each of the family members of accused no.1 started residing separately as they got separate share in the landed property. It is also admitted that the financial transactions were also separate. Thus, as far as accused nos.2 to 4 are concerned, it is seen that they were not residing with accused no.1 and Sheetal after they got separated that is since about 1 year after the marriage of Sheetal with accused no.1. According to Deepika, illtreatment to Sheetal 4 started only after 13 months after the marriage of Sheetal, this means that at that time accused nos.2 to 4 were residing separately. 5 Even as far as the date of the incident is concerned, no allegations have been made against any of the accused nos.2 to 4. The allegations if at all, they can be said to be so, were against the accused no.1. This allegation was that on 1.12.2006 Sujal i.e. son of accused no. 1 and Sheetal had broken a kerosene lamp, due to this, accused no.1 scolded and beat Sheetal. Hence, Sheetal rang up her mother at about 7.45 p.m. and told that she would not stay with the accused and she would return back to the house of Deepika. According to PW 1 Deepika at about 8.30 p.m. she again rang up Sheetal. At that time, phone was picked up by accused no.1 who told her that Sheetal was sleeping. The same night at about 11 p.m. accused no.1 informed Deepika that Sheetal had consumed thymate and was admitted in the hospital. Hence, Deepika along with her husband went to the house of Sheetal and they found that Sheetal was already dead. 6 As far as the evidence of Deepika who is mother of Sheetal is concerned, it is noticed that she has not stated anything about any demand of dowry by any of the accused including accused no.1 and that 5 there was any illtreatment or harassment to Sheetal as demand for dowry was not met. However, the learned APP has tried to place reliance on the evidence of PW 3 Damodar who is father of Sheetal. He has stated that accused no.2 asked Sheetal to bring amount of Rs. 50,000/- from her parents for purchasing tractor. However, he has not stated that as the demand was not met, any illtreatment or harassment was caused to Sheetal. This witness has also admitted that due to load shedding there was kerosene lamp in the house of accused. Son of Sheetal and accused no.1 who was two to two and half years old, broke the lamp. This witness has admitted that accused no.1 asked Sheetal to pay attention to Sujal as it was possible that because of breaking of lamp, there was possibility of accidental burns. It is seen that as the lamp was broken by Sujal, accused no.1 scolded Sheetal. PW 3 Damodar has admitted that it is true that thereafter, due to annoyance, Sheetal went to sleep and it is true that she consumed poison due to such annoyance. He has admitted that since accused no.1 realized that Sheetal had consumed poison, he immediately called Dr.Sonawane for treating her. Thus from the evidence of Damodar, who is the father of Sheetal, it is seen that the cause for Sheetal consuming poison was not due to any harassment relating to dowry but because accused no.1 scolded her in relation to breaking of lamp by their son Sujal. 6 7 Accused have been acquitted of the offence under Section 304-B r.w. 34 of IPC. We have already reproduced above that one of the necessary ingredients of Section 304-B is that soon before death there should be harassment or cruelty in relation to demand for dowry. There is no reliable or credible evidence on record to that effect. 8 In this view of the matter, we are of the opinion that the view taken by the learned Additional Sessions Judge is a reasonable and possible view. Hence, we are not inclined to interfere with the same. Leave to appeal is refused. Application rejected. Consequently, appeal is dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]