1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 325 OF 1997 1. Ramdas s/o Ambadas Zurale, Age 24 years, Occupation Agriculture, 2. Maruti s/o Ambadas Zurale, Age 30 years, Occupation Agriculture, 3. Parvatabai w/o Ambadas Zurale, Age 60 years, Occupation Agriculture, 4. Chandrabhagabai w/o Karbhari Borde, Age 85 years, Occupation Ni., All residents of Ekrukhe, Taluka Kopargaon, District Ahmednagar. APPELLANTS (Ori. Accused) V E R S U S The State of Maharashtra RESPONDENT Shri. S.T. Shelke, Counsel for appellants Shri. N.R. Shaikh, APP for respondent [ CORAM : V.R. KINGAONKAR, J. ] [Judgement reserved on : 16.09.2009 ] [Judgement pronounced on :14.10.2009 ] 2 JUDGMENT 1. Challenge in this appeal is to Judgment rendered by learned Additional Sessions Judge, Shrirampur, in Sessions Case No. 40 of 1997, whereby the appellants have been convicted for offences punishable under Section 498-A and 306 read with Section 34 of the I.P. Code and have been sentenced to suffer rigorous imprisonment for three (3) years and to pay fine of Rs.500/- each, in default to suffer rigorous imprisonment for one month, on the first count and to suffer rigorous imprisonment for three years and to pay fine of Rs.500/- each, in default to suffer rigorous imprisonment of one month more, on the second count. 2. The prosecution case, stated briefly, is that deceased Savita was the youngest daughter of PW Narayan Bhagwat Aher (complainant). He was having six daughters and a son. The marriage between deceased Savita and appellant No.1 Ramdas was solemnized on 8th May, 1996. After her marriage, Savita started residing with the appellants in the 3 matrimonial house. She was well treated for about four months after the marriage. Thereafter, appellant No. 1 Ramdas and appellant No. 3 Parwatabai started demanding amount of Rs.50,000/- from her to meet out expenditure required for digging a well. They also demanded a fan and water heater (Bumb). They used to beat her, abuse her and starve her. She visited house of her parents during the month of “Dhonda” i. e. additional month as per Hindu calender year which is regarded as auspicious period. At the relevant time, Savita narrated about the ill-treatment meted out to her by the appellants. She was accompanied by the appellant Nos. 1 and 3 at the relevant time. Her father convinced the appellant Nos. 1 and 3 to wait for some time because he was unable to fulfill the demand for money and the articles, due to financial crisis. He assured that a fan will be provided to them. Thereafter, Savita was sent with them for cohabitation. The fan was later on sent to the petitioners. She was sent to her parents’ house on 2-3 occasions in order to fetch the amount required for digging and construction of a well and to provide water heater (Bumb). He did not comply with the demand due to financial difficulties. He 4 convinced her on each occasion and sent her for cohabitation to house of the appellants. About a month before the incident of her suicide, they had beaten up her and had sent her to his house. She resided in the parental house for about 21 days. Eventually, appellant No.1 Ramdas and one of the relative visited his house for taking her back. He told them that she has been troubled, was suffering and was not feeling well. He told them that he would send her for cohabitation, but they shall not trouble her on account of demand for the money. After 2/3 days, he and one Babasaheb Zurale took Savita to house of the appellants. They gave word of advice to the appellants. They left Savita at house of the appellants and returned home. On 14th January, 1997 he received information from a policeman of Loni Police Station that Savita had died due to drowning in the well. He thereafter lodged First Information Report (Exh.25) alleging that she was subjected to matrimonial cruelty and therefore had committed suicide by plunging herself in the well. The police carried out certain investigation on basis of the First Information Report. The appellants were chargesheeted for the offences punishable under Sections 498-A and 306 read with 5 Section 34 of the I.P. Code. They were tried pursuant to the charge (Exh.03) framed against them. 3. The prosecution adduced oral evidence of 10 witnesses in support of its case besides some documents. The learned Sessions Judge held that the evidence on record is sufficient to infer that deceased Savita was subjected to matrimonial cruelty by the appellants on account of non-fulfillment of their unlawful demands of Rs.50,000/- and a water heater (Bumb). The learned Sessions Judge further held that presumption could be raised under Section 113-A of the Evidence Act regarding abetment of the appellants to her suicide. Consequently, the appellants were convicted and sentenced as described hereinabove. 4. Heard learned counsel for the appellants and learned A.P.P. for the State. 5. The points which arise for determination are : 6 (i) Whether it is proved that deceased Savita committed suicide in the early morning of 14th January, 1997 by jumping in a well situated in the agricultural land of the appellants ? (ii) Whether it is proved that the appellants subjected deceased Savita to matrimonial cruelty on account of non- fulfillment of their unlawful demands of Rs.50,000/- and a water heater (Bumb) ? (iii) Whether presumption under Section 113-A of the Evidence Act is attracted in view of the circumstances of the present case ? 6. The death of Savita occured within about 7 ½ months of the marriage. Her dead-body was found flouting in a well situated in the agricultural land of the appellants. On basis of report submitted by appellant No. 2 Maroti, A. D. No. 3 of 1997 was registered by the police. There is no dispute about the fact that the police visited the well in question after receiving such report pertaining to 7 accidental death of Savita. When parents and other relatives of Savita reached the agricultural land of the appellants, the dead-body of Savita was retrieved from the well. An inquest panchnama was drawn vide Exh.13. The recitals of the inquest panchnama would make it amply clear that there were no marks of violence on her person. The panchas noticed that she might have died due to drowning. The dead-body of Savita was thereafter sent for post mortem examination. 7. Let it be noted that there is absolutely no direct evidence to infer that she committed suicide by plunging herself in the well. The recitals of spot panchnama (Exh.17) purport to show that circumference of the well is of 18 feet. The panchas noticed that a pair of chappals was found on southern side of the well. It is pertinent to note that on western side of the well a canister filled with water was found. It was presumably the canister brought for cleaning the private part after easing out at the place. In other words, deceased Savita had apparently gone to that place for answering the call of nature. 8 8. From version of PW 2 Dada, it is quite clear that there is no brim with parapet wall around circumference of the well. The construction around the circumference of the well is up to the ground level. He corroborated recitals of the spot panchnama (Exh.17). He admits that a small platform is constructed under the water-cock fitted with the water pipe. He admits that the platform had become somewhat slippery at the relevant time. There was slope to the said platform from northern to southern side. That platform is adjoining the well on northern side thereof. It is obvious that probability of Savita’s going to the platform for fetching water after answering call of nature and accidental slipping from the platform in the well cannot be ruled out. The spot panchnama is further corroborated by PW 3 Shriram. He admits, unequivocally, that Savita was somewhat mentally retarded woman. He further admits that he used to see her sitting on the Ota of the house or beneath some tree. This admission of PW Shriram is totally ignored by the learned Sessions Judge. The topography of the spot would be further clear on perusal of the rough sketch (Exh.15) drawn by PW 1 Vasant, who is a Revenue Circle Inspector. He 9 prepared the map in the month of February, 1997. Ofcourse, he could not have come across the articles like pair of chappals and the canister, which were immediately noticed while preparing the spot panchnama. As stated before, there is no direct evidence to infer that Savita committed suicide by jumping in the well. The post-mortem notes (Exh.23) would show that Savita died as a result of drowning. There was no external injury found on her person. It is difficult to give any positive finding as regards nature of her death. The learned Sessions Judge failed to properly appreciate the evidence in the context of the nature of her death. Indeed, the circumstances would show that she had gone to the agricultural land for answering call of nature. It was morning time. It is probable that she had slipped from the platform annexed with the outer side of the circumference of the well in question. Consequently, it is unsafe to hold that she met with suicidal death. 9. So far as the allegations of matrimonial cruelty are concerned, the prosecution seeks to rely on versions of five witnesses, namely, PW 4 Ashok, PW 5 Dhrupadabai, PW 6 Meerabai, PW 7 Narayan and PW 10 8 Suman. They are close relatives of deceased Savita being brother, sisters and parents. No independent witness was examined in order to buttress the charge of matrimonial cruelty. The appellants are inhabitants of village Ekrukhe. Not a single witness from proximity of their house came forward to support the case of prosecution regarding the alleged matrimonial cruelty. It is true, no doubt, that versions of close relatives of deceased Savita cannot be discarded only because they happen to be her relatives. Still, however, it is necessary to scrutinize their versions with care and caution, before placing implicit reliance on the same. 10. The testimony of PW Ashok purports to show that for about four months after the marriage Savita was treated well by the appellants. Out of the matrimonial life of about 7 ½ months, for first four months there was absolutely no room for any complaint against the appellants. He deposed that after about four months, Savita had visited his house. At that time, she informed him and his parents that the appellants were demanding Rs. 50,000/- for digging a well and were also demanding 11 a water heater and fan. She narrated to him that the appellants had asked her to fetch said articles and cash amount from her father. She also narrated to him that the appellants used to beat her and did not give her food. He further narrated that in the month of “Dhonda” i. e. the additional month as per Hindu calendar, Savita and appellant No.1 Ramdas had been to his house. They were given new clothes by way of presents. His father told them regarding inability to pay the amount as demanded. Subsequently, a table fan was purchased and sent to the appellants. They left the house together after the festival of “Dhonda”. Thereafter, after about one month, Savita again visited his house and narrated about demand of Rs.50,000/-. She complained of beating at hands of the appellants. She stayed with her parents and brother for about 20/25 days. Appellant No. 1 Ramdas and one of his relative had come to take her back. A couple of days thereafter, she was reached to house of the appellants by PW Narayan (father). The incident of her death occured after about a week of such last visit of PW Narayan to her house. 11. It is admitted by PW Ashok that the 12 appellants own a wet land consisting of well therein. He further admitted that only on one occasion, after the marriage of Savita with appellant No.1 Ramdas, he had visited the house of the appellants. He had received a message from police regarding death of Savita due to drowning in the well. So, he transmitted the message to other relatives. He and his family members alongwith his some other relatives went to village Ekrukhe in the same morning. 12. Cross-examination of PW Ashok would show that he had not suspected that Savita might have committed suicide, after he examined her dead-body. He admits that when the dead-body was sent for post- mortem examination, the police had taken him and his relatives to the police station at Rahata. They were about 20 to 25 persons who visited the police station in the relevant noon. His father i. e. PW Narayan was also amongst the group. They waited outside the police station about 4/5 hours. He categorically admits : “We had talked there and decided that a report is to be given against the accused 13 persons. We had decided that accused are to be put in jail. It was decided that demand of Rs.50,000/-, water heater and fan etc. was to be written in the report. My father had accordingly given the report”. The above clear admission of PW Ashok goes to show that the F.I.R. was lodged after deliberations made by the relatives and others who had been waiting outside the police station to know the result of the post-mortem examination. They had decided to introduce the allegations regarding demands of Rs. 50,000/-, water heater and fan in the report which was to be lodged. Obviously, the F.I.R. lodged by PW 7 Narayan vide Exh. 25 is outcome of the deliberations which were made by him with other relatives. Indeed, when there was already a well in the agricultural land of the appellants, much before the alleged demand of Rs.50,000/-, there is no further clarification whether such amount was being demanded for construction of another well or for the purpose of renovation of the existing well or to discharge the financial liability which had accrued due to construction of the earlier well. Moreover, PW Ashok attempted to exaggerate the version 14 regarding incident of beating administered by the appellants to deceased Savita. He admits that no report was lodged at the police station about such beating. According to him, she was taken to Civil Hospital for medical treatment after she had complained of beating at hands of the appellants. There is no medical evidence regarding her examination as an injured patient in the Civil Hospital. His version reveals that when he and other relatives went to the place around the well in question, the police personnel were making inquiry. They had inquired with him and other relatives. At the first blush, when such opportunity was available, ordinarily, PW Narayan would have lodged the First Information Report. There was no reason for him to await till the deliberations with the relatives. There is yet another significant admission extracted through cross-examination of PW Ashok. He admits : “It is true that my father was telling that accused were not guilty and no report was to be given against them”. Obviously, it can be gathered that initially PW 15 Narayan gave clean chit to the appellants. He knew that they were not guilty, and therefore, no report was required to be given against them. Thus, it may be inferred that PW Narayan lodged the First Information Report (Exh.25) due to decision arrived at by the relatives of PW Ashok, himself and others. 13. On persual of the versions of PW 5 Dhrupadabai and PW 7 Narayan, who are parents of deceased Savita, it emerges that the demands for Rs.50,000/- and a water heater (Bumb) by the appellants have been stated by them. It is important to notice that deceased Savita and appellant No.1 Ramdas had come to house of PW Dhrupadabai and PW Narayan at the time of festival of “Dhonde”. According to them, they informed the appellants that the demands may be fulfilled after obtaining finance in future. It is admitted by PW Dhrupadabai that Savita died due to falling in the well. She admits in unequivocal manner that because Savita had died, she and her husband as well as other relatives were annoyed and they decided to teach a lesson to the appellants, and therefore, PW Narayan lodged the First Information Report. She was unable to disclose date and calendar month of 16 the visit of deceased Savita to her house. The version of PW 7 Narayan makes vague reference about earlier incident of beating and driving away Savita from the matrimonial home. He did not locate the period of such ill-treatment, nature thereof and the details of harassment meted out to Savita. He admits that distance between village Loni and village Ekrukhe is approximately 7 miles. If that is so, immediately after the incident of death of Savita, he or his parents could have approached the police for lodging of the report. According to PW Narayan, he had seen contusion marks on back of Savita and secured medical treatment for her. He has not produced any document in support of such medical treatment. 14. The versions of PW 6 Meerabai and PW 8 Suman go to show that vague allegations regarding demand of Rs.50,000/- was being made by the appellants. It is significant to notice that PW Meerabai and PW Suman are the married daughters of PW Narayan. Their marriages were performed prior to the marriage of deceased Savita. They state that during the additional month they had been to house of PW Narayan and PW Dhrupadabai (their parents) for 17 attending festival of “Dhonda”. At that time, they were informed by deceased Savita regarding the unlawful demands of the appellants. The versions of both these witnesses do not show as to what kind of ill-treatment was given to Savita due to non- fulfillment of the alleged demand. They gave vague account regarding the information given by Savita regarding the unlawful demands. It is stated by PW Meerabai that she had urged the appellants to properly look after Savita. Nobody else however says that PW Meerabai had adviced the appellant No.1 to properly look after welfare of Savita. 15. Considering the vague and omnibus account of alleged cruelty meted out to deceased Savita by the appellants, it is difficult to accept the versions of the parents, brother and sisters of Savita. It need not be reiterated that Savita died within period of about 7 ½ months of the marriage. For about four months, there was no room for any grievance and she was residing happily with the appellants. What happened during the last 3 ½ months is not clearly borne out from the record. The admission of PW Shriram that Savita was somewhat mentally derailed woman is indicative of the 18 possibility that she could not take care of herself while drawing water from the well in the relevant morning, and, therefore, accidentally had fallen in the well. Considering this aspect, the impugned Judgment of conviction and sentence appears to be on shaky foundation. 16. In Rajababu and another v. State of M. P. (2008 AIR SCW 5435) the Apex Court held that mere facts of suicide by woman within 7 years and cruelty by husband does not automatically give rise to presumption under Section 113-A of Evidence Act. In the given case, deceased Shanti Bai had immolated herself within two years of the marriage. It was noticed that she was unhappy as her husband was illiterate and poor. This Court in Satish Fakira Dhangar and others v. State of Maharashtra (2009 All MR (Cri) 2083) held that conviction cannot be rendered on basis of sweeping allegations about the matrimonial cruelty. Considering the legal position, it will have to be said that presumption under Section 113-A of Evidence Act cannot be drawn in the present case because it is not duly proved that deceased Savita was subjected to matrimonial cruelty 19 on account of non-fulfillment of the unlawful demands. 17. For the reasons stated hereinabove, I am of the opinion that the impugned Judgment of conviction and sentence is unsustainable. Hence, the appeal is allowed. The impugned Judgment of conviction and sentence rendered in Sessions Case No. 40 of 1997 is set aside. The appellants are acquitted for the offences under Section 498-A and 306 read with Section 34 of the I.P. Code. Their bail bonds be deemed as cancelled. The fine amount, if has been deposited, be refunded to each of them. [ V.R. KINGAONKAR ] JUDGE srm/criapl325.97