1 cra58.01 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 58 OF 2001 Kacharu s/o Bhausaheb Sonawane, age 31 years, occ. Agriculture, r/o Akolner, Tq. And District Ahmednagar ...Appellant (original accused no.1) VERSUS 1 The State of Maharashtra, 2 Shri Ravindra s/o Murlidhar Deshmukh, age 34 years, occ. Service, r/o Daund, Taluka Daund, District Pune ...Respondent (No.2 complainant) ..... Shri S.B.Jadhav, advocate holding for Shri B.T.Bodkhe, advocate for appellant (original accused no.1) Shri S.G.Nandedkar, A.P.P. for respondent/State ..... CORAM : SHRIHARI P.DAVARE, J. DATE OF RESERVING THE JUDGMENT : 18.4.2011 DATE OF PRONOUNCING THE JUDGMENT : 29.4.2011 2 cra58.01 J U D G M E N T : - 1 Challenge in the present appeal is to the conviction and sentence, rendered by the learned Additional Sessions Judge, Ahmednagar, in Sessions Case No. 202 of 1999, by way of judgment and order, dated 22.1.2001, whereby appellant herein (original accused no.1) was convicted for the offence punishable under Sections 498-A and 306 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.1,000/-, in default to suffer simple imprisonment for three months, but no separate sentence was awarded under Section 306 of the Indian Penal Code and set off was directed to be given to appellant (original accused no.1) herein, as he was in Jail from 18.8.1999 to 29.10.1999. 2 The factual matrix and shorn of details, which gave rise to the present appeal, are as follows :- The appellant i.e. original accused no.1 Kacharu Bhausaheb Sonawane and deceased Surekha married with each other about four years back from the date of incident i.e. 17.8.1999 and the original accused no. 2 – Bhausaheb Dattatraya Sonawane 3 cra58.01 and original accused no.3 – Hausabai Bhausaheb Sonawane are the parents-in-law of deceased Surekha. The appellant and his parents i.e. original accused nos. 2 and 3 faced the trial for the offences punishable under Sections 498-A and 306 r/w Section 34 of the Indian Penal Code, but only appellant herein was convicted and sentenced, as afore stated; whereas original accused nos. 2 and 3 were acquitted from the charges levelled against them by the judgment and order, dated 22.1.2001. 3 It is alleged that deceased Surekha was educated upto 10 th standard and after marriage, she went to her matrimonial home and was residing with the accused persons at Akolner, Taluka and District Ahmednagar. She was treated well for initial period of one year, but thereafter whenever she used to come to her parental house, she used to complain that the accused persons used to make unlawful demand of Rs.50,000/- to be brought by her from her parents and they used to assault her due to non-fulfillment of the said demand and even some times she was starved on the said count. 4 Complainant – Ravindra Murlidhar Deshmukh, resident of Arangaon, Taluka and District Ahmednagar is the brother of deceased Surekha and he has also another unmarried sister, namely Seema. Deceased Surekha used to make grievance about 4 cra58.01 illtreatment and harassment to her at the hands of accused persons before her brother i.e. the complainant and he used to convince her. He brought her to parental house for delivery purpose and accordingly, deceased Surekha gave birth to a female child. However, on the insistence of her father-in-law, namely Bhausaheb, she was sent back to her matrimonial home very soon after delivery. It is also alleged that after lapse of about six months, complainant Ravindra went to the house of accused persons to meet deceased Surekha and at that time also Surekha complained before him that the accused persons used to demand amount of Rs. 50,000/- from her and used to illtreat her and used to assault her on account of said unlawful demand. Hence, the complainant again requested the accused persons not to illtreat Surekha, but the accused persons stated that they would not illtreat her if amount is paid to them, otherwise they would not allow her to reside in the house. 5 It is also the case of prosecution that on 17.8.1999, when the complainant Ravindra was at Daund, he received a telephonic message from PW3 Kashinath Deshmukh i.e. uncle of Surekha at about 11.30 a.m. conveying that Surekha informed him on telephone from Sonewadi that she was driven out of her house on account of demand of amount of Rs.50,000/-. Thereafter, the complainant came to his house at Arangaon at about 7.00 p.m., but he did not 5 cra58.01 find Surekha there. Hence, he contacted PW4 Sangita Deshmukh i.e. distant sister of Surekha, who informed that Surekha left her house at about 11.00 a.m. on the same day. Hence, the complainant PW2 Ravindra contacted the neighbours of the accused at village Akolner on telephone, who informed him that Surekha and her daughter were expired. Accordingly, the complainant Ravindra, his uncle Kashinath, his mother Sulochana, sister Seema, his father and cousin brother Jalindar Gopal, Tabaji Deshmukh, Laxman Tabaji Deshmukh, etc. went to Akolner and saw the dead bodies of deceased Surekha and her daughter in the ambulance. Thereafter, the said dead bodies were taken to the Civil Hospital, Ahmednagar for postmortem and postmortem was performed by PW1 Dr. Prabhas Patil, Medical Officer. It is alleged by the complainant that deceased Surekha was illtreated by the accused persons and she was driven out of her matrimonial home, and therefore, she committed suicide by throwing herself and her small female child on Railway track, and accordingly, the accused persons abetted commission of the said suicide. 6 It is also the case of prosecution that PW6 P.S.I. Uttam Eknath Tagade was attached to Nagar Rural police station on the relevant day i.e. 17.8.1999 and Police Station Officer Sonawane 6 cra58.01 registered A.D. No. 55 of 1999 in respect of complaint lodged by the complainant Ravindra Murlidhar Deshmukh and same was reduced into writing and the complaint is produced at Exh.19. Accordingly, PW6 P.S.I. Uttam Tagade registered the offence under Sections 498-A and 306 of the Indian Penal Code against the accused persons. He carried out the investigation into the matter. He recorded the statements of the witnesses during the course of investigation on 18.8.1999 and handed over the investigation to Deputy Superintendent of Police and again took the investigation into his hands on 30.8.1999. Accordingly, after completion of investigation, he filed the charge sheet against the accused persons on 22.10.1999. Thereafter, the said case was committed to the Court of Sessions by order dated 25.10.1999 by the learned Judicial Magistrate, First Class, Ahmednagar. 7 Accordingly, charge was framed against the accused persons on 5.12.2000 at Exh.3 for the offence punishable under Sections 306 and 498A r/w Section 34 of the Indian Penal Code. However, the accused persons pleaded not guilty to the said charges levelled against them and claimed to be tried. 8 To substantiate the charges levelled against the accused, the prosecution examined in as much as six witnesses, as mentioned 7 cra58.01 below. PW1 Dr. Prabhas Patil, Medical Officer, who performed postmortem on deceased Surekha and her child and produced the postmortem notes of child of Surekha at Exh.13 and postmortem notes of deceased Surekha at Exh. 14. PW2 Ravindra Murlidhar Deshmukh, complainant i.e. brother deceased Surekha. PW3 Kashinath Tabaji Deshmukh i.e. uncle of deceased Surekha. PW4 Sangita Dhondiram Deshmuh, distant sister of deceased Surekha PW5 Jalindar Gopal Deshmukh, cousin brother of deceased Surekha PW6 P.S.I. Uttam Eknath Tagade, Investigating Officer. 9 The accused persons neither examined themselves on oath nor examined any witness on their behalf. The defence of the accused persons is of total denial, contending that deceased Surekha was avoiding to work on Wit Bhatti and she used to go to her parents house frequently and she also performed abortion behind the back of the accused persons and she used to consume tablets and thereby she had pains in her legs, eyes and head, and 8 cra58.01 therefore, medical treatment was given to her in the hospital of Dr. Jadhav and Dr. Hoshing, but since she was consuming various tablets, she became hot tempered and was not doing any work. Besides, prior to 8 to 10 days of incident, she had gone to the house of her parents as her sister was ill and the accused have no connection with the alleged crime and they have been implicated in this crime falsely, and accordingly, they claimed to be innocent. 10 Considering the oral and documentary evidence, as well as the medical evidence produced by the prosecution on record and also considering the rival submissions advanced by the learned counsel for the parties, the learned Trial Judge convicted accused no.1 i.e. appellant herein for the offence punishable under Section 498-A and 306 of the Indian Penal Code and sentenced him as afore stated; whereas the accused nos. 2 and 3 were acquitted from the charges levelled against them. 11 Being aggrieved and dissatisfied by the said judgment and order, dated 22.1.2001, thereby convicting original accused no.1 i.e. appellant herein, the appellant has preferred the present appeal challenging the same and prayed for quashment thereof. 12 Before adverting to the submissions advanced by the 9 cra58.01 learned counsel for the parties, it is necessary to scrutinize the material evidence adduced and produced by the prosecution on record, and in the said context, coming to the deposition of PW2 complainant Ravindra Murlidhar Deshmukh i.e. brother of deceased Surekha, who stated that the marriage between Surekha and accused no.1 Kacharu was performed about 4 years back from the alleged incident at village Akolner, which is situated at a distance of 12 Kms. from village Arangaon and after the marriage she went to her matrimonial home at Akolner. Initially she was treated properly by the accused persons for about one year. He stated that some times Surekha used to come at her parental house and at that time she used to complain against the accused persons stating that they used to assault her and used to demand money i.e. Rs.50,000/- to be brought by her from her parents and even they were not giving food to her. He also stated that after the period of two years from marriage, she had come to the parental house for delivery purpose and delivered a female child, namely Tejaswi. However, after the lapse of ten days of delivery, her father-in-law came and insisted to send back Surekha to matrimonial home, and accordingly, she was sent to matrimonial home. He further stated that after six months of the said incident, he had gone to the house of accused persons to meet Surekha and even at that time also she disclosed before him that accused used to ask her to bring amount of Rs.50,000/- from her 10 cra58.01 parents and they used to assault and illtreat her due to non-fullfilment of the said demand. Hence, he stated that he convinced the accused persons not to illtreat her. 13 He further stated that thereafter after lapse of about six months, he received the telephonic message from his uncle informing that he received a phone call from Surekha stating that she was driven out of the house by the accused persons after assaulting her on account of demand of money and even she was threatened to be killed. After receipt of the said message, he went to Arangaon and thereafter made inquiry with his uncle. Thereupon, he stated that he received the phone call from Surekha from Sonewadi. Hence, he contacted Ranjana Deshmukh at village Sonewadi and made inquiry about Surekha and thereupon she stated that Surekha had left her house at 11.00 a.m. Hence, PW2 Ravindra contacted the neighbours of the accused on phone and thereupon they informed him that Surekha and female child were expired. 14 PW2 Ravindra further stated that he along with his family members and relatives went to Akolner at the house of the accused and found the dead bodies of Surekha and small female child Tejaswi in ambulance, which was taken to Civil Hospital at Ahmednagar and postmortem was performed on the said dead 11 cra58.01 bodies on the next day and thereafter funeral was carried on. He then went to police station at about 8.30 p.m. and lodged the report (Exh.19) at the police station. 15 During cross-examination, he stated that no quarrel took place in the marriage of Surekha on account of dowry and same was performed without any obstruction. He also stated that there are houses of labourers near the house of the accused and the house of the accused is situated adjoining to Sarola-Akolner road, which is a busy road and Akolner is a big village. He also stated that the Wit Bhatti belonging to the accused is adjoining to the road known as Akolner Sarola road and deceased Surekha and Kacharu were residing near the said Wit Bhatti. He further stated that there is railway line going to Arangaon and the distance between Akolner and Arangaon is 7 to 8 Kms. However, he denied that the distance between Sonewadi and Akolner is about 2 to 3 Kms., but stated that Sonewadi was nearer to Arangaon than Akolner. He also stated that there is railway line at Akolner, which goes towards Daund from Nagar and same is visible from the house of accused, but he could not state the specific distance between the said railway line and the house of the accused. 16 He further stated in cross-examination that he did not 12 cra58.01 know about earning of accused from the business of Wit Bhatti and was also unaware whether the said business was in good condition at the relevant time, nor he knew that the accused persons purchased machine for making cement bricks, nor he knew that accused and deceased Surekha used to work personally on Wit Bhatti. He also admitted that he did not make inquiry with the panch at Akolner in respect of illtreatment and harassment meted out to his sister Surekha, nor he made grievance with the police patil or Sarpanch of the village in that respect, nor he discussed with the neighbours in that respect. However, he categorically stated in his testimony that his sister Surekha used to come to Arangaon at the time of festivals. Surekha was educated upto 10 th standard. He further stated that two notices were issued by accused Kacharu calling upon her to come at matrimonial home for cohabitation. He also stated that he was not aware whether there was abortion when Surekha was carrying pregnancy of three months. However, he stated that accused no.1 Kacharu informed him that Surekha performed abortion when she was carrying pregnancy of three months and PW2 Ravindra stated to accused no.1 that it was their personal matter and he would not interfere therein. However, he stated that he was not aware whether his sister Surekha was getting pains in her head or his legs after abortion. He also stated that operation of eyes of Surekha was performed by Dr. Jadhav and that 13 cra58.01 he was unaware whether the said medical expenses were borne by accused no.1. Hence, suggestion was given to him that Surekha was taking medical treatment continuously and she was taking tablets continuously and due to said consumption of tablets, her mental condition was affected, but same was denied by him. He further stated that he was unaware whether one day prior to the date of incident there was festival of Panchami and could not tell whether deceased Surekha had come to her parental house prior to ten days of the incident. It was also suggested to him that Surekha was not willing to reside with accused no.1 Kacharu, but same was denied by him. He categorically stated that his parents desired that Surekha should stay along with the accused. His another sister Seema was unmarried at the time of incident. He also stated that he was not aware whether his parents were asking Surekha not to come to their house and she should reside along with her husband. He also admitted that he did not lodge complaint with the police station when he came to know about the illtreatment and harassment to his sister. 17 Further in the cross-examination he was shown three letters and PW2 identified signatures of Surekha thereon and said letters were marked Exhs. 20, 21 and 22 respectively. He further stated that he did not lodge complaint with the police on the day of incident. However, he stated that he felt to lodge complaint, but he 14 cra58.01 did not get occasion to lodge the same. He also admitted that he did not give any explanation regarding delay in lodging the complaint. He further stated that he was not aware whether there was quarrel between Surekha and his father. He also could not state whether his parents got annoyed against Surekha, who were allegedly saying her not to stay at their house, as their another daughter was to be married. He further stated that he does not know whether Surekha was driven out from the house by his parents on the date of incident, nor he knew that whether his sister left the parental house due to their annoyance against her and she went towards railway line. 18 Besides, suggestion was given to PW2 Ravindra that accused persons did not demand amount of Rs.50,000/-, but same was denied by him. Suggestion was also given to him that accused persons did not assault and illtreat Surekha at any point of time, but same was denied by him. It was further suggested to him that he did not go to Akolner after marriage of his sister Surekha, but same was denied by him. The defence put up its case to PW2 Ravindra that the alleged incident occurred as the mental condition of Surekha was affected, but same was denied by him. 19 Coming to the deposition of PW3 Kashinath Tabaji Deshmukh, who stated that Surekha was daughter of his brother and 15 cra58.01 accused no.1 Kacharu was son-in-law of his brother and he was residing by the side of house of his brother, namely Murlidhar at Arangaon. He stated that whenever Surekha used to come to Arangaon she used to visit his house and he used to make inquiry with her about her physical condition and she used to inform him that she was having illtreatment at the hands of his in-laws and husband on account of demand of Rs.50,000/-. She also informed him that accused were demanding Rs.50,000/- for business of Wit Bhatti and they used to ask her to bring the said amount from her parents. He further stated that she was taken to her parental house for delivery and after four days of delivery, her father-in-law insisted to send her to matrimonial home, and accordingly, after 7-8 days of delivery, she was taken to matrimonial home. 20 As regards the incident, he stated that he received telephone from Surekha from village Sonewadi, who informed him that she was assaulted by accused persons at night time and she was driven out of the house on account of demand of money and her husband i.e. accused no.1 had informed her that she should bring the amount from her parents, otherwise she should leave their house and she should take divorce from him. Moreover, on making inquiry with Surekha, she informed that she was talking from the house of Sangita Deshmukh of Sonewadi. She also informed him that her 16 cra58.01 husband i.e. accused no.1 informed her that she should not live in the premises of Akolner, otherwise her legs would be cut off. Hence, PW3 Kashinath told her that she should not leave the house of Sangita and he would send his son to take her. Thereafter, he informed to PW2 Ravindra on telephone regarding the phone message of Surekha, as well as informed that Surekha was assaulted by her husband and in-laws and had driven out of house. Accordingly, after receipt of his message, PW2 Ravindra came from Daund at Arangaon and thereafter he contacted on phone at Sonewadi to Sangita, who informed that Surekha had already left the house at about 11.00 a.m. Thereafter, on inquiry by PW2 Ravindra with neighbours at Akolner, he came to know that Surekha and her daughter were expired. After getting such knowledge, PW3 Kashinath accompanied with PW2 Ravindra and others came to Akolner and saw the dead bodies of Surekha and her child in ambulance, which was taken to Nagar for postmortem purpose, and thereafter funeral was performed at Arangaon. 21 In cross-examination, he stated that marriage of Surekha was settled by him and there was no quarrel in the marriage. He also stated that whenever accused no.1 used to visit the house of the parents of Surekha, he used to come to his house. He admitted in the cross-examination that he did not inform the police patil or 17 cra58.01 Sarpanch about the illtreatment meted out to Surekha at the hands of accused and even he could not tell the date and day of going to the house of the accused persons after knowing about the illtreatment. He further stated that on one or two occasions, Surekha had come to the house of parents for attending festivals and she had come 8 to 10 days prior to the date of incident for attending festival of Panchami and to meet her sister Seema. He further stated that he came to know that deceased Surekha performed abortion when he was carrying pregnancy of three months. He also stated that two notices were received by Surekha from advocate calling upon her to join accused no.1 for cohabitation, and accordingly, she was sent to her matrimonial home. He further stated that economic condition of parents of Surekha was sound. He further stated that he was unaware whether father of deceased Surekha was telling her to stay at the house of accused persons and he got annoyed against Surekha on that count. He also could not state whether deceased Surekha was consuming tablets and taking regular medical treatment for future delivery. 22 He categorically stated that he knew reading and writing and he received one letter from deceased Surekha regarding illtreatment, but could not file it on record. He also stated that he might have stated before police while recording his statement that 18 cra58.01 after 4 days of delivery, father-in-law of Surekha had come to the house of her parents and insisted them to send Surekha to her matrimonial home, and even PW6 P.S.I. Uttam Tagade, investigating officer, supported the same in his testimony, stating that he recorded the statement of said Kashinath, who did not state before him about the same while recording his police statement. 23 He also stated that he is not having phone facility and cannot tell the phone number on which he contacted with PW2 Ravindra. He further stated that after receipt of phone call from Sonewadi, he did not go to Sonewadi personally. He also stated that the distance between Sonewadi and Arangaon is about 2 to 3 Kms. He also stated that he did not make inquiry after receipt of phone from Surekha from 11.00 a.m. to 7.00 p.m. Even after receipt of phone call from Sonewadi, he did not go to Akolner nor did he make inquiry with accused persons regarding the incident. He further stated that PW4 Sangita is his relative, but he had not gone to her house after receipt of phone call from Sangita. He further stated that he did not state before police that deceased Surekha was assaulted by her husband in the night time, but no such contradiction was put to the investigating officer PW1 P.S.I. Uttam Tagade and alleged contradiction has not been proved by the defence. Suggestion was given to him that amount of Rs.50,000/- was not demanded by the 19 cra58.01 accused persons for starting the business of Wit Bhatti, but same was denied by him. 24 That takes me to