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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.540 of 2003
...
The State of Maharashtra through
the Police Station Officer,
Police Station Dharni, District Amravati... APPELLANT
.. Versus ..
1. Shivkant s/o Parmeshwardayal
Pandey, Aged about 30 years,
R.o Tembhli, P.S. Dharni,
District Amravati.
2. Parmeshwardayal s/o Ramphal
Pandey, Aged about 64 years,
R/o Tembhli, Tq. Dharni,
Distt. Amravati.
(Respondent No.2 is reported to be
dead. Appeal against him stands
abated vide order dt. 22.11.2017).. RESPONDENTS
Shri R.S. Nayak, APP for Appellant-State
Shri P.S. Gavai, Advocate h/f Shri R.L Khapre, Advocate for
Respondent.
....
CORAM : Kum. Indira Jain, J.
DATED : November 22, 2017.
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2 Apeal540-03.odt ORAL JUDGMENT
1. This appeal is directed against the judgment and order of acquittal recorded vide judgment and order dated 23.05.2003 by the learned First Ad-hoc Additional Sessions Judge, Achalpur, acquitting the respondents- accused Nos. 1 and 4 of the offences punishable under Sections 498-A, 306 read with 34 of the Indian Penal Code in Session Trial No. 104/2000.
2. Prosecution case which can be disclosed from the charge-sheet and connecting papers thereto may be stated in brief as under:-
(A) Respondent No.1 a resident of village Tembhli in tahsil Achalpur, was married to Rajani daughter of Harihar Rajapath Mishra, resident of Paratwada on 11.05.1999. After marriage, she went to the house of Harihar Mishra at village Tembhli. Respondent No.2-accused No.4 was the father of respondent no.1 and father-in-law of Rajani. Prosecution was launched in all against seven accused. Accused Nos. 2,3 and 7 are the sons, accused No.5 is wife and accused No.6 is daughter of respondent No.2-accused No.4. ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:32:36 :::
3 Apeal540-03.odt (B) According to the prosecution, accused persons were
residing jointly. After marriage, accused used to insist Rajani to bring money from her father. She was being ill-treated and harassed to meet with the demand of money. During her visits to her matrimonial house, Rajani disclosed about the harassment on money to her.
(C) It is contended that respondent no.2 also visited house of complainant Harihar Mishra and insisted to pay Rs.50,000/- for purchasing a field in the name of his another son. He was asking for Rs.40,000/- for securing a job for his son. As complainant could not pay the amount, respondent No.2 threatened him that he would see to get share of Rajani from the property of complainant.
(D) On 06.05.2000, accused No.3 Chandrakant informed complainant Harihar on phone that Rajani consumed poison and died.
(E) On 07.05.2000 Dilip Patel , Sarpanch of village, was informed by Chandrakant that condition of Rajani was serious. He visited the house of accused and saw Rajani dead. Being Sarpanch, he informed Police Station Dharni about the death. On receiving information, initially accidental death was registered. Mr. R.N. Ghule, Police Station Officer, went to the spot and recorded spot panchanama. Articles like a can ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:32:36 ::: 4 Apeal540-03.odt bearing Endosulfan word, a post card and a pen lying on the spot were seized at the time of recording spot panchanama. Inquest panchanama was prepared and dead body was sent for post mortem to Rural Hospital Dharni. Medical Officers on duty performed post mortem and opined probable cause of death due to asyphyxia due to organochlorine poisoning. (F) On receiving information, father of the deceased and other family members rushed to the house of accused. Harihar Mishra father of Rajani, suspected that she committed suicide due to cruel treatment given to her by her husband and his relatives. Therefore, he lodged report to the Police Station on 07.05.2000. Crime No. 0080 of 2000 came to be registered against the accused for the offences punishable under Sections 498-A, 306 read with 34 of the Indian Penal Code. (G) PW8 API Ghule took over investigation. He arrested the accused and obtained their specimen signatures. Complainant had produced some letters signed by Rajani to him. Those letters were seized under a seizure panchanama. The letters were sent to handwriting expert. Viscera was preserved by Doctors at the time of post mortem. The same was also sent to Chemical Analyser for analysis. During investigation, statements of several witnesses came to be recorded. On completing investigation, charge-sheet was ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:32:36 ::: 5 Apeal540-03.odt submitted to the Court of Judicial Magistrate First Class, Dharni, who in turn committed the case for trial to the Court of Session.
3. On committal, Sessions Court framed charge vide Exh.16. Accused pleaded not guilty and claimed to be tried. The factum of relationship inter se between the parties is not disputed. Regarding occurrence of incident, defence of the accused was of total denial and false implication.
4. Prosecution examined in all eight witnesses to substantiate the guilt of accused. Considering the evidence of parents and Sarpanch and also relying upon the letters written by Rajani to her father, trial Court came to the conclusion that cruelty under Section 498-A of the Indian Penal Code is not proved and the prosecution could not establish that accused abetted commission of suicide by Rajani. In consequence thereof, accused came to be acquitted as stated hereinabove in paragraph 1.
5. The State of Maharashtra being aggrieved by the order of acquittal has preferred this appeal against accused No.1 and accused No.4 husband and father-in-law of Rajani.
During pendency of appeal, respondent No.2- accused No.4
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died and vide order dated 22.11.2017, appeal has been abated against respondent No.2. The entire controversy is now narrowed down and restricted to respondent No.1-accused No.1.
6. Heard Shri R.S. Nayak, learned Additional Public Prosecutor for the appellant and Shri P.S. Gavai, learned counsel for respondent No.1.
7. Sofar as factum of death is concerned, it is not in serious dispute that Rajani committed suicide and the death in question is a suicidal death. Accused have denied that they are responsible for the suicide committed by Rajani.
8. Needless to state that cruelty as contemplated under Section 498-A of the Indian Penal Code is willful conduct and harassment by husband and his relatives to a woman with a view to coerce her to meet with their unlawful demand. In the case on hand, PW1 Harihar, PW2 Vimbla, PW4 Ramesh, PW5 Sugrabi and PW6 Vijay Kumar Dube are the witnesses examined on the alleged harassment and cruelty on demand of money to Rajani.
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9. It can be seen from the evidence of parents and particularly PW1 Harihar that after marriage Rajani visited his house thrice. He stated that Rajani used to tell them that accused were insisting her to bring money. She was tortured on the ground that less dowry was given at the time of marriage. She also disclosed that accused were beating her. According to Harihar, father-in-law of Rajani used to visit his house and once he demanded Rs.50,000/- to purchase his uncle's field and for his son Chandrakant once he demanded money. When he expressed his inability to pay money, Parmeshwar and his family members got annoyed and threatened Harihar saying that he would see to get the share of Rajani in the property from Harihar.
10. The evidence of PW2 Vimbla, mother of the deceased, is on the same line. Sofar as PW4 and PW6 are concerned, their evidence would indicate that they were approached for share of Rajani in the property of her parents. Their evidence is not directly on the point of cruelty. PW5 Sugrabi is examined to show conduct and harassment by the accused to Rajani but her evidence indicates that Rajani never disclosed about cruel treatment to her at the hands of the accused.
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11. From the above it could be seen that the prosecution case regarding alleged cruelty and harassment on demand of money revolves around the evidence of PW1 Harihar and PW2 Vimbla i.e. parents of the deceased. The trial Court in paragraph 8 of the judgment recorded the reasons to discard the testimony of these two witnesses. It was found that the allegations of alleged demand are vague and omnibus and for want of specific instances, the testimonies of PW1 and PW2 cannot be relied on. Another reason to disbelieve the evidence of parents of Rajani is based on the letters (Exhs. 35 to 37) sent by Rajani to her father. There is no whisper in these letters regarding demand of money by the accused and harassment to Rajani on such demand. In this connection, learned counsel for respondent no.1 relied on judgment of the Hon'ble Supreme Court in State of Maharashtra .vs. Ashok Narayan Dandalwar (AIR 2000 Supreme Court 3568 (2)) and submitted that no assertion in any of the letters regarding cruelty or torture would be enough to refuse conviction on oral testimony of the interested witnesses. In paragraph 3 of the judgment, the Hon'ble Supreme Court observed thus:-
"3. Mr. Deshpande, appearing for the State vehemently contended that the oral evidence read with the letters supposed to have been written by the deceased to her brother as well ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:32:36 ::: 9 Apeal540-03.odt as other persons unequivocally indicates the treatment that was meted out to her by the accused and therefore, the order of acquittal is wholly unjustified. But, having gone through the letters produced by the prosecution, we do not find even a slightest assertion in any of the letters complaining against the husband either he was making any demand at any point of time or he has assaulted or treated the wife with cruelty or torture. In that view of the matter, when in so many letters (Exts. 11 to
17) the deceased has not reflected any cruelty alleged to have been meted out to her by the husband. It is difficult to maintain a conviction on the oral testimony of the younger brother of the deceased and, in our view, the High Court was fully justified in recording an order of acquittal. We see no merits in this appeal to interfere with the said order of acquittal."
The facts in the case on hand are identical. In the letters produced by PW1 Harihar written by Rajani, this Court does not find even a slightest assertion against the husband or his relatives on demand of money, alleged assault , cruelty or torture.
12. Another significant factor in the present case is that witnesses though initially denied that Rajani was suffering from pain in her abdomen and she was treated for the same by the Doctor, lateron admitted that Rajani was suffering from pain and was under treatment of Dr. Jawanjal. Accused have come with a specific defence that being tired of ailment, Rajani might ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:32:36 ::: 10 Apeal540-03.odt have committed suicide. Accused need not establish the defence beyond reasonable doubt. The test of preponderance of probabilities is applicable to the accused when it comes to the defence raised. In the instant case by extracting material admissions in the cross-examination of PW1 Harihar and PW2 Vimbla, accused could throw a doubt on the genuineness of the case of the prosecution regarding cause of death of suicide by Rajani. The Trial Court relying upon the admissions observed that possibility of Rajani committing suicide due to ailment is not ruled out. The observations and reasons are based on the facts brought on record in the cross-examination.
13. In the above premise, the reasons and findings recorded by the trial court cannot be said to be perverse or illegal. Appeal, therefore, deserves to be dismissed. Hence the following order:-
Criminal Appeal No.540 of 2003 is dismissed. Bail bonds of the accused shall stand cancelled. No order as to costs.
(Kum. Indira Jain, J. ) ...
halwai/p.s.
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