Shankar Pandurang Kaldhone And ... vs State Of Maharashtra
2002 Latest Caselaw 247 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard learned Advocate for the appellants and learned APP for the State.

2. All the four accused have been convicted by the Illrd Additional Sessions Judge, Sangli by his judgment dated 17.9.1991 for the offences under Sections 306 and 498-A of the Indian Penal Code. They have been sentenced to suffer R.I. for five years and fine under Section 306 of the Indian Penal Code and to suffer R.I. for three years and fine under Section 498-A of the Indian Penal Code.

3. Two girls Laxmi and Sharada, who were daughters-in-law of accused Nos. 3 and 4 and wives of accused Nos. 1 and 2 respectively, committed suicide on the same day by drowning themselves into the well. Laxmi and Sharada were married on the same day to accused No. 1 Shankar and accused No. 2 Rajaram respectively. Within fifteen months they committed suicide because of torture and demand of Rs. 20,000/-. This is the prosecution case.

4. The prosecution examined Hirabai - the mother of Laxmi as P.W. 1, Navsherkhan Pathan as P.W. 2 to prove the map, Krishanbai, who is related to the accused, as P.W. 3 for proving last day meeting and the complaints made to her by Laxmi and Sharada about the ill-treatment given to them by all the accused. One Kashibai was examined as P.W. 4 to prove that P.W. 3 along with Laxmi and Sharada had worked in her field. The next witness examined by the prosecution is one Shakuntala, the sister of Laxmi, as P.W. 5. Savanta, the brother of Sharada was examined as P.W. 6 to prove the narration of Sharada about the ill-treatment given to her and, another witnesses were Panchas and Investigating Officer, etc.

5. Challenging the aforesaid conviction by all the accused it was contended by Miss Manisha Patil, the Advocate for the accused that firstly, the prosecution has not been able to prove beyond reasonable doubt that both Laxmi and Sharada committed suicide. She also contended that there are circumstances on record and also the evidence on record to show that they might have died as a result of accident. Therefore, according to her, the conviction under Section 306 of the Indian Penal Code was wrong.

6. So far as ill-treatment under Section 498-A of the Indian Penal Code is concerned, she contended that the evidence of mother and sister of Laxmi was totally contradictory, full of improvements and not at all trustworthy. According to her, the evidence of brother of Sharada was also liable to be rejected because of the same reasons. The evidence of Krishnabai P.W. 3 to whom Laxmi and Sharada were alleged to have made complaints of ill-treatment and expressed their resolve not to go back to their house cannot also be believed because of unnatural behaviour of the said witness. Therefore, according to her, the accused were entitled for acquittal on all the counts.

7. On the other hand it was contended by learned APP for the State that the prosecution has succeeded in proving the case beyond reasonable doubt. The evidence on record amply proved that Laxmi and Sharada committed suicide. He also contended that the accidental death of brides on one and the same day and at the same time is highly impossible coupled with the narration made by both of them to Krishnabai and, therefore, it was according to him, a fool-proof case of suicide. He also contended that the so-called contradictions or omissions in the evidence of the witnesses were minor and in any case natural and they could be capitalized by the accused for the purpose of seeking acquittal.

8. The question is whether the judgment of the Trial Court is liable to be set aside. The admitted facts are that Laxmi was the wife of Shankar and Sharada was the wife of Rajaram. Their marriages took place on one and the same day in the same pendal and, they died within 14-15 months of their marriages. The relationship of the witnesses with the deceased wherever alleged? is also not disputed. The fact that both Laxmi and Sharada died as a result of drowning is also not disputed. The crucial question is, whether it was suicide or accident.

9. In this regard the learned Advocate for the accused contended that the well in which both Laxmi and Sharada died is a peculiar type of well and is a common well of Pandurang Chavan and others in land Gat No. 91. The well is round, squarish and slippery and length of the said well is 50 x 50 ft., depth is about 35 ft., water level is 12 ft. and all the four sides of the well are slippery. The stones and rubble are spread north side of the well and from east-west side there is a slippery way which goes to south and again to west and inside the well. The well is dug fully in the centre and from centre to east it is halfly dug and towards western side the earth is accumulated which is wet and dry both. The entire western side is slippery.

10. The Counsel for the accused-specifically pointed out that the Panchanama in Maratia where, according to her, it is clearly and specifically mentioned that a footpath directly goes into the well, that it is slippery and all the surrounding area of the well is also slippery. She also contended that the theory of accident is thus fortified directly because the well is not fully constructed, that it had no parapet wall at all at any side and anyone could go into the well for drinking water directly by the footpath which was going into well.

11. Therefore, according to her, because the footpath was directly leading to the well, because it was all slippery and because it was a time of summer when the death of Laxmi and Sharada took place, it was very possible that they had accidentally fallen in the well one after the other. She drew my attention to the map drawn by P.W. 2 from which it was clear that the well was near the way. Further P.W. 4 Kashibai, in whose field Laxmi and Sharada and P.W. 3 had worked on that day, has admitted that the well is on the pathway of her field, the date of incident was the day of summer, besides this well there are other two wells on this pathway but those two wells are dry wells in summer days one gets thirsty repeatedly.

12. From the aforesaid circumstance as mentioned in the Panchanama Exhibit 11 and the admissions given by Kashibai P.W. 4 the Advocate for the accused contended that in the absence of any direct evidence of suicide coming from the prosecution these circumstances were sufficient to create doubt as to whether Laxmi and Sharada committed suicide or not. The learned APP in this regard urged that it was next to impossible that two daughters-in-law in the family would die on the same day and the same time by accident. He contended that even if there was a slippery road leading directly into the well, the possibility of both the girls falling in the well by an accident was highly impossible. If one girl had slipped into the well, the other would have raised hue and cry and at least would have saved the victim or herself. He further contended that the evidence of P.W. 3 Krishnabai is sufficient to come to the conclusion that both of the girls died because of suicide committed by them.

13. P.W. 3 Krishnabai has stated in her evidence that on the date of incident of suicide in the morning she went along with Laxmi and Sharada in Ghopade's jungle for labour work. They used to start the work in the morning and used to return home in the noon. On that day they sat together in that field for one hour, took rest and meals and again started the work as usual. Thereafter they drank the water and started back to their homes. P.W. 3 further stated that at that time she told the girls to go to their home, but both of them told her that they would not go to their home, that they were having trouble by all the accused and in no case they would go to the home. P.W. 3 Krishnabai persuaded them, but again both of them refused. Learned APP, therefore, contended that since immediately on the same day evening bodies of the girls found in the well, there is direct material available on record to prove that it was a case of suicide and not accidental case as alleged by the defence.

14. As against this, Counsel for the accused drew my attention to the cross-examination of P.W. 3 Krishnabai, where she admitted that for number of years she was not on visiting terms with the accused even though they were related to her, that when she came back from the field she did not tell anybody about the narration of Laxmi and Sharada. She also admitted that on that night itself the father of Laxmi and relations from his side came in the village but she did not tell anything to the father of Laxmi or anybody else in that night. She also stated that on the next day the relatives of Sharada also came but she did not tell anything to any person either related to Laxmi or to Sharada about the narration made by them to her on the earlier day. She also stated that even though the corpses of Laxmi and Sharada were brought, she did not tell anything to the police or did not go to the police of her own accord.

15. From this conduct of Krishnabai (PW. 3) the Counsel for the accused contended that it was full of suspicion and was liable to be rejected because in natural course of events, Krishnabai should have revealed the narration to somebody else at least after the bodies of Laxmi and Sharada were brought from the well.

16. I find considerable force in the submissions made by the Counsel for the accused. The conduct of Krishnabai (PW 3) in keeping silence over this vitally important aspect i.e. over the narration made to her by Laxmi and Sharada, even after their bodies were brought from the well creates grave doubt as to whether Laxmi and Sharada really narrated anything to her. Admittedly, she was related to the accused and also related to the father of Laxmi and relatives of Sharada, but she does not disclose anything to them, even after they were in the village to her knowledge, she did not disclose anything to the police on her accord. Since the entire case of the prosecution is about the suicide of Laxmi and Sharada, the evidence of Krishnabai (P.W. 3), which was otherwise material and vitally important for the prosecution, becomes full of suspicions because of lapses on her part. The theory of suicide gets support only from the narration made by Laxmi and Sharada to Krishnabai because it discloses their intention not to get back to their house i.e. the house of the accused. However, firstly, there is no corroboration to what Krishnabai says and, secondly her conduct is most unnatural. Therefore, vital link is missing in the theory of Krishnabai about the narration made to her by Laxmi and Sharada. There is, no doubt that both of them died by drowning in the well. The death is unnatural. However, the case of suicide has to be proved by the prosecution beyond reasonable doubt and, from the topography of the well, existence of slippery road directly leading to the well, all slippery area around the well, absence of any injuries on the body of Laxmi and Sharada and the doubt about the veracity of Krishnabai because of her unnatural conduct, are all sufficient to create doubt in the mind of the Court. Obviously in such case benefit of doubt has to be given to the accused.

17. So far as evidence of mother and sister of Laxmi and brother of Sharada is concerned, that evidence has to be independently considered regarding the case of the prosecution under Section 498 of the Indian Penal Code for proving abetment Jo suicide. Their evidence does not help the prosecution. This import?.".', aspect of the matter that is considered above about the suicide is left sight of the Trial Court and as such the conviction of the accused under Section 306 read with Section 34 of the Indian Penal Code cannot be maintained.

18. So far as conviction under Section 498-A of the Indian Penal Code is concerned, there is admittedly sufficient material on record for proving ill-treatment and demand of dowry of Rs. 20,000/-. The evidence of Hirabai (P.W. 1) - the mother of Laxmi, the evidence of Shakuntala (P.W. 5), the sister of Laxmi and the evidence of Savanta (P.W. 6) - the brother of Sharada are there on record. All of them have consistently narrated about the demand of Rs. 20,000/- by all the accused and the ill-treatment given by them to Laxmi and Sharada on that count. It is true that there are some contradictions in the evidence of P.W. 1 but they are not major in material. Her conduct appears to be most natural because being a poor she had to explain to her daughter Laxmi that she had not been in a position to meet the demand of Rs. 20,000/- made by the accused. She had also stated that she went to see Laxmi and returning back, accused No. 1 followed her and threatened her that he would break her leg if she again went to his home. This meeting of accused and P.W. 1 was 3/4 days before the death of Laxmi. The contradictions brought on record in the cross-examination of this witness are about the time when Laxmi narrated her misery to P.W. 1. These are not at all material contradictions. The Counsel for the accused contended that P.W. 1 has not stated anything about the accused beating Laxmi in her report Exhibit-18. Even if that part is excluded from her evidence because of the contradictions, the other evidence given by her is sufficient to prove the ill-treatment given by the accused to Laxmi.

19. P.W. 1 is corroborated by P.W. 4 Shakuntala that Laxmi narrated about the ill-treatment given to her by all the accused. Her evidence was challenged by the Counsel for the accused on the ground that Sharada was living separately with her husband from her in-laws and the conduct of this witness does not inspire confidence. The scrutiny of her evidence shows that Laxmi had been to her house 10/15 days before Laxmi's death. At that time tonsils of Laxmi were removed at Sangli and it is at this juncture Laxmi told her about the demand of Rs. 20,000/- by the accused and the ill-treatment given to her. She has further stated that the same things were repeated by Laxmi when she met her on Diwali and Sankrant days.

20. According to the accused, this witness is telling lies because even though Laxmi narrated all these things to her, she did not tell this to her mother or to her husband or to her in-laws. There are omissions by this witness with reference, to the allegations of beating by the accused to Laxmi. However, the evidence of this witness cannot be totally rejected on account of contradictions and omissions and, suffice to say that this witness generally supports and corroborates the evidence of P.W. 1.

21. Therefore, the evidence of P.W. 1 Hirabai and P.W. 5 Shakuntala is sufficient for proving the offence under Section 498-A of the Indian Penal Code so far as it relates to the ill-treatment given to Laxmi.

22. The prosecution then examined P.W. 6 Savanta - the brother of Sharada. He has also stated that Sharada told him twice about the ill-treatment given to her by all the accused and their demand of Rs. 20,000/-. The Counsel for the accused contended that from the evidence of Savanta it was clear that Rajaram - the husband of Sharada was admitted in Sangli in the hospital for operating upon his appendix. At the same time Laxmi was admitted for operation of tonsils. According to the learned Counsel for the accused, therefore, it was impossible that Rajaram was giving any ill-treatment to Sharada. She also pointed out that Rajaram and Sharada had lived at Pune and, therefore, during this time there could not be any ill-treatment from her mother-in-law and father-in-law. She also pointed out that it has come on record that the father-in-law of Sharada i.e. accused No. 3 was suffering from breathing problems. The Counsel for the accused also pointed out that RW. 6 Savanta has admitted that Sharada never came to his house after her marriage. Therefore, according to her, there was no occasion to Sharada to make any such complaints. Further he has admitted that except his visit with Rajaram, he had not visited Rajaram, since the marriage of her sister with him and, further there is material omission in his evidence regarding Sharada's telling him about the demand of Rs. 20,000/- and beating by the accused. That part is totally absent in the police statement of this witness Savanta. Therefore, the Counsel for the accused contended that so far as ill-treatment to Sharada is concerned, there is absolutely no evidence because Savanta was the only witness examined by the prosecution in that regard and since Savanta's uncorroborated evidence, which is full of contradictions and material omissions and improbabilities, was liable to be rejected, then the accused were entitled for acquittal.

23. The learned APP however relied upon the evidence of Suvarna (P.W. 9) for the purpose of proving the ill-treatment to Laxmi and Sharada. This witness Suvarna is next door neighbour of Laxmi and Sharada. She was knowing both of them. She has stated that all these accused vised to give trouble to Laxmi and Sharada. They used to beat them - Laxmi and Sharada, with the sticks and with their hands and their husbands also used to beat them. She has also stated about the demand of Rs. 20,000/- by Shankar and Rajaram.

24. Counsel for the accused pointed out that this witness has admitted that she had personally not seen the beatings to Laxmi and Sharada with her own eyes and in her presence. There is no demand of Rs. 20,000/- by any of the accused at any time. Further there was important omission amounting to contradiction about the demand of Rs. 20,000/- in the evidence of this witness. Therefore, she contended that her evidence was liable to be totally rejected.

25. Considering, therefore, the entire evidence of all the important witnesses of the prosecution for proving 498-A it is clear that their evidence cannot be totally rejected. The evidence of four witnesses gets corroboration from each other's testimony. Even if the contradictions and material omissions are accepted, there are no grounds for total rejection of their evidence.

26. Learned Counsel for the accused ultimately urged that the incident is of 1990, accused No. 3 is about 69 years of age, accused No. 4 Sakhubai is now 63 years of age and, therefore, even under Section 498-A. the Indian Penal Code, their sentence was required to be reduced by taking lenient view in this matter.

27. Considering therefore, all these facts i.e. the age of accused Nos. 3 and 4 being more than 69 and 63 at present, the passage of 12 years, I pass the following order.

ORDER

The appeal filed by the accused is partly allowed. The conviction of all the accused under Section 306 read with Section 34 of the Indian Penal Code is set aside and they are acquitted of the charges.

The conviction of the accused under Section 498-A of the Indian Penal Code/ is maintained. The sentence of accused No. 1 Shankar and accused No. 2 Rajaram is reduced to two years and sentence of accused No. 3 Pandurang and accused No. 4 Smt. Sakhubai is reduced to six months. The sentence of fine of all the accused under Section 498-A is maintained.

Rest of the judgment of the Trial Court to remain same.

The accused are on bail. Their bail bonds shall stand cancelled and all of them to surrender before the Trial Court within four weeks from today.