1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.145 OF 1991 1 Tarabai, wife of Gangadhar Taralkar, age about 50 years 2 Balabai d/o Gangadhar Taralkar aged about 20 years, resident of Jawaharnagar, Kabnur, District: Kolhapur ...Appellants. v. The State of Maharashtra ...Respondents. Mr. S.V.Marwadi i/by A.P.Mundargi, advs. For the Appellants. Mr.Y.M.Nakhwa, APP for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : NOVEMBER 30, 2010 ORAL JUDGMENT: 1 Appellants are original accused nos.1 and 2 in Sessions Case No.106 of 1990 before the Sessions Court at Kolhapur in which by the judgment and order dated 26.2.1991, the learned 5th Additional Sessions Judge convicted them for the offences punishable under Section 498A and Section 304-B r/w Section 34 I.P.C. and sentenced them on first count for S.I. for one year and to pay fine of Rs.1,000/- and on the second count to undergo S.I. For 7 years. The appellants have challenged the conviction and sentence in the present appeal. 2 2 To state in brief, deceased Krishnabai daughter of P.W.1 Malu and Bhagwan Dhavale, was married to Hanmant Taralkar in May, 1989. After marriage, she went to live with her husband and parents in law. Accused no.1 Tarabai is mother and accused no.2 is younger sister of Hanmant. At the time of incident, accused no.2 Balabai was young and unmarried girl aged about 18 years. According to the prosecution, accused persons used to treat Krishnabai with cruelty and used to pressurise her to bring gold, cash, new clothes, etc. On two or three occasions, her mother had been to the house of the accused to take her daughter to the parents place but she was not sent. On 26th February, 1990, in the evening her father-in-law Gangadhar reached her at her parents place. At that time, Krishnabai was weeping and told her mother that her mother-in-law and sister-in-law Balabai used to beat and ill treat her on the ground that she had not brought any gold ornaments, money or new clothes. Her husband would not pay attention to the ill treatment but he also did not say anything to his wife. A few days after that on the day of Amavasya, i.e., on 3rd March, 1990, her mother P.W.1 Malu and their neighbour P.W.2 Amirbi took Krishnabai to her husband’s place. When they reached the house accused no.1 Tarabai quarreled with them 3 and began to beat Krishnabai with chappal. At that time Gangadhar husband of accused no.1 obstructed her and asked her not to beat. On this accused no.1 pushed aside her husband also. P.W.2 Amirbi tried to advise accused no.1 but she was not willing to hear anybody. Then P.W.1 Malubai and P.W.2 Amirbi returned asking Krishnabai to live there. On 23.3.90 after 9 p.m. one unknown person went to the house of P.W.1 Malu and informed that her daughter Krishnabai was serious. After this Malubai and others immediately went to the house of the accused . Many peoples from the locality also assembled. The door of the room in which Krishnabai was lying was closed from outside. Then another daughter of Malubai asked Sharada to open the door and they found that Krishnabai was lying dead with burn injuries on her body. It appears that report of the said incident was lodged by Mhalaba, who happened to be uncle of deceased Krishnabai and also son-in-law of the accused no.1. He had reported that Krishnabai had committed suicide by immolating herself. Police treated it as accident death case. Dead body of Krishnabai was taken to the hospital where P.M. Examination was conducted and autopsy surgeon reported that she had died due to shock because of 100% burns. He also found that she had suffered 100% superficial to deep burns all over the body. P.W.1 Malubai lodged report at the police 4 station on 25.3.1990 making the allegations about the beating and ill treatment at the hands of the accused persons on account of demand of gold, cash, etc. After that police registered crime no.40/1990 under Section 498-A, 304-B r/w Section 34 of the I.P.C. After investigation charge-sheet was filed and in due course case was committed to the Court of Sessions. 3 Both the accused pleaded not guilty to the charges. According to them , they were falsely implicated in this case. On behalf of the prosecution in all five witnesses were examined and several documents were placed on record. Most of the documents were admitted on behalf of the accused. After hearing the parties the learned trial Court convicted and sentenced both the accused as stated above. 4 Heard the learned counsel for the accused/appellants and the learned APP. Perused the record and proceeding of the trial Court. 5 In view of the spot panchanama, Ex.11 and P.M. Report, Ex. 14, it is clear that she had died because of shock due to 100% burn injuries. Spot panchanama shows that there were can of kerosene and half burnt matchbox at the spot. Seizure panchanama of her clothes shows that clothes were smelling of kerosene. It appears that she had poured kerosene and had immolated herself. Therefore, there is no 5 dispute that Krishnabai had committed suicide by immolating herself. She was married on 12.5.1989 and on 23.3.1990, i.e. just after 10 months of marriage, she had committed suicide. P.M. Report reveals that she was pregnant for 10 weeks. 6 Prosecution relies on the testimony of P.W.1 Malubai, who is the mother of the deceased, P.W.2 Amirbi and P.W.3 Suvarna Kamble, who were neighbours of Malubai. From the evidence it appears that parents as well as in-laws of the deceased Krishnabai were residing in different localities at Kabnur in Kolhapur. According to Malubai, after the marriage, she had been to the house of the accused to take Krishnabai to her parents place but her in-laws had not sent her. On 26th February, 1990, she was reached at her parents place by her father-in-law Gangadhar. It was time of about 5.30 or 6 p.m., Krishnabai told her mother that her mother-in-law, i.e., accused no.1 and sister-in-law Balabai, i.e., accused no.2 used to beat and illtreat her and used to pressurise her to bring ornaments, cash, new clothes and also that she should not come back unless she would bring cash, ornaments, new clothes, etc. To this extent P.W.2 Amirbi and P.W.3 Suvarna have also supported the prosecution story. According to the P.W.2 Amirbi at about 6 p.m. She had been to the house of Malubai and she saw Krishnabai 6 weeping and embarrassing her mother. Krishnabai was telling her mother that her mother-in-law and sister-in-law were harassing her on account of demand of gold, cash and new clothes, etc. and that she should not come back unless these articles were brought. P.W.3 Suvarna also deposed that at about 5.30 or 6 p.m., she went to the house of Malubai where she saw Krishnabai weeping. She also embarrassed her mother. P.W.3 asked Krishnabai as to why she was weeping. Then she told her that her mother-in-law and sister-in-law used to harass her and they were demanding cash, gold ornaments, etc. and that she should not come back unless these things were also brought. 7 Second incident is of 3rd March, 1990 at 8.30 p.m. when P.W.1 Malubai and P.W.2 Amirbi took Krishnabai to her husbands house. When they reached at the house of the accused, accused no.2 began to abuse Krishnabai and then her mother-in-law, accused no.1 began to beat Krishnabai with chappal. However, her father-in-law Gangadhar intervened and asked the accused no.1 as to what she was doing but the accused no.1 pushed her husband Gangadhar aside. Accused no.1 also pushed Malubai. She also asked Amirbi to go out of the house. P.W.2 Amirbi also supported this evidence. 8 As far as the incident of 26th February, 1990 is concerned, 7 evidence of P.W.1 Malubai, P.W.2 Amirbi and P.W.3 Suvarna appears to be consistent with minor discrepancies and omissions, which may be natural and can not be given much importance. As far as second incident of 3rd March, 1990 is concerned, there are material omissions as far as accused no.2 is concerned. First in the F.I.R. lodged by P.W.1 Malubai, there is no mention that on 3rd March, 1990 when she reached her daughter Krishnabai to her husband’s house, her sister-in-law, i.e., accused no.2 Balabai also abused or quarreled with her. Similarly, it is proved that P.W.2 Amirbi had not stated before the police that on 3rd March, 1990, accused no.2 Balabai had also abused Krishnabai. Therefore, there was material improvement in the evidence of both of these witnesses about the role of accused no.2 on 3rd March, 1990. These two witnesses were eye witnesses of the incident, which took place on 3rd March, 1990 and as per the F.I.R., and as per the statement of P.W.2 Amirbi before the police, accused no.1 alone had quarreled and beaten Krishnabai with chappal. The evidence shows that father-in-law of the deceased, Gangadhar had tried to intervene but accused no.1 pushed her aside and asked him not to intervene. Their evidence before the Court to this extent is consistent with the original story. However, their evidence before the Court involving accused no.2 in that incident and alleging that 8 accused no.2 had also abused is clearly an improvement over their stand before the police. It means that they have tried to falsely implicate the accused no.2 in the incident of 3rd March, 1990. As far as earlier beating or illtreatment of Krishnabai on account of payment of dowry, none of these witnesses was eye witnesses. Their evidence is based on what Krishnabai had told them in the evening of 26th February, 1990. If P.W.1 Malubai and P.W.2 Amirbi could make material improvement to implicate accused no.2 falsely in the incident dated 3rd March, 1990, it will be necessary to be cautious in accepting their version about the accused no.2, even in respect of what Krishnabai had told them on 26th February, 1990. Accused no.2 was a young girl aged about 18 years. She was unmarried. It is difficult to believe that she would have been interested in pressurising her brother’s wife to bring dowry from her parents. In view of this, in my opinion, accused no.2 deserves to be granted benefit of doubt. 9 As far as accused no.1, who is mother-in-law of the deceased I find that the evidence is consistent, there is no material contradiction, omission or improvement about her role in the whole episode. It is material to note that deceased was young girl aged about 19 years or so. In May, 1989 she was married and on 23rd March, 1990, she 9 committed suicide by immolating herself. On behalf of the accused, no explanation had come on record about the cause of her committing suicide. There is nothing on record to show that she was married to Hanmant against her desire. There is nothing to show that she did not like her husband. There is nothing to show that relations between the husband and wife were not cordial. In fact, even the evidence of P.W.1 Malubai shows that her husband was indifferent to it. It appears that he was not harassing her wife. On the other hand, her father-in-law appears to be considerate and he tried to desist accused no.1 from harassing and beating Krishnabai. It appears that accused no.1 did not even pay heed to the sensible advise given by her husband. Krishnabai was pregnant for 10 weeks. In these circumstances, it is impossible to believe that Krishnabai would have committed suicide by immolating herself without very strong reason and according to the prosecution evidence, that reason was beating and cruel treatment at the hands of mother-in-law on account of demand of gold, cash, etc. When such demand is made from newly married girl, it must be held that such a demand pertains to the marriage and it amounts to dowry. Therefore, in view of the given circumstances, it can be held that accused no.1 used to treat her daughter-in-law Krishnabai with cruelty on account of demand of dowry 10 and because of that cruel treatment finally she committed suicide on 23.3.1990. In view of these circumstances, I find no fault in conviction of accused no.1 for the offences punishable under Section 304-B as well as 498-A of the I.P.C. Offence under Section 304B Sub-section (2) provides that for the offence of dowry minimum sentence of imprisonment would be 7 years but it may extend to imprisonment for life. The learned trial Court awarded imprisonment of 7 years to the accused no.1. That sentence is minimum and, therefore, needs no interference. As far as accused no.2 is concerned, I have already stated that she deserves benefit of doubt. 10 For the aforesaid reasons, appeal is partly allowed. Conviction and sentence awarded to the accused no.1 is maintained. However, conviction and sentence in respect of accused no.2 is hereby set aside and she is acquitted of both the charges. Accused no.1 Tarabai to surrender before the trial Court within 15 days from this date to undergo sentence as per law. (J.H. BHATIA,J.)