The State Of Maharashtra vs Jayprakash Krishna Mangaonkar, ...
2003 Latest Caselaw 48 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This appeal as well as the accompnaying Revision Application are directed against the judgment and order passed by the Sessions Court Sawantwadi at Sawantwadi, dated February 16, 1987, in Sessions Case No.50/1985. This appeal has been filed by the State of Maharashtra against the order of acquittal, whereas the Revision has been filed by Balkrishna Dhondu Parkar, father of the deceased. The Respondents-original accused Nos. 1 to 3 were tried for the commission of offence punishable under Section 306, 498-A read with 34 of the Indian Penal Code.

2. Briefly stated the accused No.1 is serving in Naval Dockyard at Bombay Since 1978, whereas the accused Nos. 2 & 3 are his parents who were residing in the village at Dhabole, Taluka Sawantwadi, Dist. Sindhudurg. Accused No.1 married Shubhangi of village Hindoli, Taluka, Deogad on 13th April 1984 and after the marriage she was christened as Shital. It is the prosecution case that the marriage suffered rough weather. In October 1984 accused No.1 filed divorce proceedings against his wife on account of the impotency of the wife. However, accused No.1 was persuaded to withdraw the said proceeding and, which were infact withdrawn. It is the case of the prosecution that since after the marriage the accused No.1 started harassing the said Shital by falsely complaining that she was not doing any house work properly. She was also denied proper meals and was required to work like a maidservant in the house. It has also come on record that there was misunderstanding between the accused No.1 and his wife Shital on account of marital bliss between them. The prosecution case is that the accused No.1 agreed to withdraw the divorce proceedings only after being assured that he would be paid a sum of Rs. 10,000/- towards the cost of litigation incurred by him and that accused No.1 had assured that he would look after Shital properly in future. However, soon thereafter on 27th February 1985 said Shital was reported to be unconscious having consumed poison and when taken to the hospital was declared already dead. It appears that necessary inquiry was undertaken by the local police officer who subsequently lodged F.I.R. Exh. 19. After the investigation was completed charge-sheet came to be filed and matter stood committed to the court of Sessions at Sawantwadi. The accused pleaded not guilty and claimed to be tried. The prosecution in order to establish its case examined in all eight witnesses, Besides, relied on some of the letters exchanged between the parties. The trail court after having analyzed the evidence f each of the prosecution witnesses and documentary evidence, by a well reasoned and detailed order recorded acquittal in favour of the respondents. The applicant in the accompanying revision application preferred revision before this court challenging the order of acquittal. Thereafter the State preferred the present appeal. Accordingly, both the appeal as well as revision application have been directed to be heard together and are being so decided together.

3. With the assistance of the Ld. A.P.P. as well as Mr. Sabnis, Advocate for the applicant in the Revision Application and Mr. Khandeparkar for the Respondents-accused, I have gone through the entire evidence and documents on record, including the judgments of the lower court.

4. According to the Ld. A.P.P. the trial court has glossed over the crucial aspect that the prosecution witnesses have clearly alleged that the deceased Shital was driven to commit suicide on account of the repeated demands made by accused to pay Rs. 10,000/- which was agreed to be paid during the meeting held between the parties. It is submitted that there was nothing evidence on record to support the said case of the prosecution of "demand" made by the accused. If that contention was to be accepted, contends Ld. APP that, then the finding of guilt against the accused and conviction for the alleged offence was inevitable L.d. A.P.P. next submits that there is evidence with regard to the "harassment" caused to the deceased by each of the accused, making false complaint against her of not doing house work properly and of not giving her proper meals and was being forced to do manial work in the house as a maidservant. According to him ample evidence is available on record so as to record finding of guilt of cruelty caused by the accused and of forcing the deceased to commit suicide. These are the only two submissions advanced by the Ld. A.P.P. before this court. Mr. Sabnis, Advocate for the applicant in the accompanying Revision Application has adopted the arguments advanced by the Ld. A.P.P. and he has not advanced any further arguments.

5. On the other hand, Mr. Khandeparkar for the accused contends that, it is possible to suggest that the trial court has not specifically considered the contentions as pressed not service before this court. But, according to him, that plea was never raised before the court below. He, further submits that the evidence on record would not support the plea taken on behalf of the appellant that the deceased was driven to commit suicide on account of suffering harassment or because of the repeated demands made by the accused to pay a sum of Rs. 10,000/-. He further submits that the trial court has considered each of the evidence on record very meticulously and has arrived at a finding, inter-alia, that evidence of the prosecution witnesses was untrustworthy. In such a case no interference would be warranted especially because this court is exercising jurisdiction of appeal against acquittal. He further submits that the court below has analyzed the oral as well as documentary evidence on record and has taken a view, which is a possible view. He submits that if this court was to re-appreciate the evidence-which it can obviously do in this appeal, but was to arrive at a different opinion other than the already found by the trial court, then that itself cannot be the basis for reversing the order of acquittal returned in favour of the accused.

6. At the outset, I have no hesitation in observing that the trial court was meticulously analyzed each of the prosecution evidence brought on record and then recorded its conclusion, as has been done in the impugned judgment. It would be appropriate to observe that this court could do no better than the meticulous analysis done by the trial court in the impugned judgment.

7. I shall now proceed to examine the two contentions pressed into service before this court. In so far as the first point argued on behalf of the appellant/applicant is that the judgment of the trial court cannot be sustained - for it has glossed over the crucial aspect of the prosecution case that the deceased was driven to commit suicide on account of the repeated "demands" made by the accused for Rs. 10,000/-. In support of this submission, reliance has been placed on the deposition of PW.3, mother of the deceased. In paragraph 4 of the evidence, PW.3 has deposed that in the month of Poush, the deceased was telling her that the harassment by accused Nos. 2 & 3, and they were telling that she has not brought Rs. 10,000/-, and accused No.1 was also making repeated demands for Rs. 10,000/. Soon thereafter the deceased consumed poison and died on 27th February 1985. Besides the evidence of Pw.3, reliance is also placed on the evidence of Pw.5 (Uncle of the deceased) who has stated in paragraph No. 2 of his examination-in-chief that deceased told him that she was being troubled, in that, the accused No.1 is not behaving properly with her, and wanted Rs. 10,000/- from her. He has further deposed that deceased told her that accused No.1 was not liking things from her and accused Nos. 2 & 3 were insulting her by using words of teasing and harassing her. Besides the above evidence, reliance is placed on letter purported to be written by the deceased before her death, Exh. 42.

8. However, on close examination of the above evidence as a whole, and as rightly contended by the counsel for the respondent-accused, the submission canvassed before this court is without any substance. In the first place, no such specific plea was taken before the trial court and that is the reason why the trial court must not have dealt with that aspect in the impugned judgment. If that plea was taken then, obviously, the trial court would have dealt with that aspect as it has dealt with all other relevant aspects meticulously. Be that as it may, counsel for the respondent has rightly brought to my notice relevant portions from the cross examination of Pw.3 as well as pw.5 to submit that the suggestion now made that deceased was driven to commit suicide by consuming poison on account of the repeated "demands" of Rs. 10,000/- made by the accused, is totally after thought and improbable. My attention has been drawn to paragraph No.9 of the evidence of Pw.3, where she has conceded that the deceased was a sensitive girl and used to get nervous if anybody harshly spoke to her. In the same paragraph, suggestion has been put to this witness that the deceased was feeling frustrated because she could not give marital bliss to accused No.1. This witness had admitted that the deceased was loving accused No.1 intensively. This witness was unable to explain the reason as to why the deceased in her letters written earlier to her, mentioned about the fact that she could not give martial bliss to accused No. 1. This witness has admitted in the same paragraph that, till September 1984 the deceased was telling that she felt that accused Nos. 2 & 3 were like her parents. In substance, the evidence of Pw.3 would indicate that things were more than normal and relations between the accused and the deceased were cordial till before the death of the deceased, upto 21st February 1985, which was evident from the letter sent by the deceased. What is relevant to note is that in paragraph 9 (at page 221) this witness admits that Shubhangi did not inform in writing about the harassment. She further admits that neither she nor her husband informed any respectable person about the harassment caused to Shubhagi. She also admits that for the first time in the court she has stated about the harassment to the deceased by accused persons. She further deposed that she did not remember whether police inquired with her whether any harassment was caused to Shubhangi by the accused. This admission clearly affects the testimony of Pw.3, in particular, about her case that harassment was caused to the deceased by any of the accused persons. If the cross examination is read as a whole, it would clearly indicate that this witness has been confronted with her case made out in the examination-in-chief. What is further relevant to note is that in paragraph No. 10 of her deposition Pw.3 admits that accused Nos. 2 & 3 were also unhappy over the differences between accused No.1 and his wife-Shital. It is further admitted by this witness that till 25th May 1984 she carried impression that accused Nos. 2 & 3 were godly persons. This witness has further admitted in paragraph No.10 that accused No. 1 had told her about the deficiency relating to the marital bliss and the impotency and advised her to approach proper medical practitioner for the treatment. It is admitted by this witness that pursuant to the said recommendation, medical treatment was offered to Shital from the local doctor and accused No.1 was also informed that he may take his wife to Bombay for further treatment, if required. My attention has also been drawn to the suggestion put to Pw.3 in paragraph No.11 that Shubhangi was taken to commit suicide because of unsuccessful married life with accused No.1. This witness has clearly admitted that in none of the letters written by Shubhangi she has no mentioned about the harassment by accused Nos. 1 to 3. In paragraph No. 11, Pw.3 has admitted that relations between the accused family and their family was cordial even till Sharadha ceremony of their father-in law, which occurred in February 1984, which is few days before Shubhangi consumed poison. It is also admitted by this witness that accused No.1 used to make attempts to improve strained relation between the families as a social worker. In paragraph No.13, Pw.3 has admitted that she has not stated before the police in any of her statements that accused nos. 2 & 3 were not providing food to Shubhangi and accused No.1 was not liking Shubhangi, Similar admission is given in paragraph No.14 by Pw.3 that she has not stated in her statement to the police that accused Nos. 1 to 3 caused mental agony to Shubhangi and did not give proper food and insult her and tease her and that accused Nos. 2 & 3 did not allow Shubhangi to talk with accused No.1 and that they did not approve the work of Shubhangi in the house; She has not stated in her statement that accused No.1 was not liking the food and tea offered by Shubhangi to him, thus he was causing mental troubles to her. In view of these admissions, to which my attention has been adverted and as would appear from the cross examination at different places, including in paragraph nos. 17 to 21 it would clear emerge that Pw. 3 had obviously improved her case. This clearly establishes the position that the defence taken by the accused that the deceased Shubhangi was disappointed about her physical incapability in offering marital bliss to the accused No 1 and since she was a sensitive girl, was unable to withstand that pressure and committed suicide. To put it differently, the defence is that Shubhangi did not commit suicide because of any "demand" or harassment by the accused but for the aforestated reason. And if that be so, no offence under Section 498-A can be said to have been made out against the accused. In other words, the Counsel for the Respondents-accused contends that on the preponderance of probability pressed into service on behalf of the accused, was good enough to sustain the order of the acquittal in their favour. In this context it will be necessary now to examine as to how the trial court has analyzed and evaluated the evidence of Pw.3. In paragraph no. 18, the trial court while analyzing the evidence of Pw.3, has observed thus. "It appears from the evidence of Sushma Parkar that her daughter Shubhangi was simple and obedient girl and she was respecting the elderly persons and she was also of a meek nature. Pw. 3 Sushma admitted in the cross that she feeling with the personality of accused No. 1 and his status was thing of pride for them and it is further admitted that after 20 days of the marriage, accused No. 1 went to Bombay while Sushma remained in this house and during this period of 15 to 20 days, accused No. 1 and Sushma had come to their house for Pachaparatavani ceremony which is generally performed after 10 to 12 days of the marriage and admittedly that ceremony was performed happily and thereafter accused No. 1 and Shubhangi went out to their house at Dhabhole. It further appears from the evidence of Pw. 3 Sushma that her daughter had appeared for the SSC examination in 1984 and she was brought up in good family condition in proper (SIC) and her daughter was a sensitive girl who used to get nervous if anybody harshly spoke to her. Pw.3 Sushma further admitted that after about a month and half before Tripura Pournima of 1984, Shubhangi came to know that accused No.1 had filed divorce petition in court but Pw.3 says that Shubhangi did not know on what ground accused No.1 had filed such divorce petition and even at the time of the meeting of Tripuri Pournima of 1984. She did not come to know whether accused No.1 had filed divorce petition on the ground of impotency of Shubhangi. It is true that Pw.3 Sushma denied that Shubhangi was feeling frustrated because she could not give marital bliss to accused No.1 and, therefore, Pw.3 Sushma was confronted with the letters written by Shubhangi to accused No.1 and in that letter it is made clear that till September 1984 Shubhangi was telling that she feeling that accused No.2 & 3 like her parents."

Further in paragraph 29 the trial Court has observed thus, "As already stated the star witness of the prosecution is Pw.3 Sushma Parkar the mother of the deceased and Pw.3 Sushma has stated that the work of Shital was not being

did not allow her to talk with accused No.1 and according to her, she had gone one day to accused's

that her daughter should be treated well as she is complaining. But in the cross examination it seems to be clear that Pw.3 Sushma has not referred to any harassment to her daughter either by accused Nos. 2 & 3 and in para 14 of her deposition she has stated that "I have not stated in my statement, to the

caused mental agony to Shubhangi and that they do not give proper food and insult her and tease her and that accused Nos. 2 & 3 do not allow Shubhangi to talk with accused No. 1 and that they do not approve the work of Shubhangi in the house. Similarly, she has not stated in his statement to the police that accused No.1 was not liking the food prepared and offered by Shubhangi to accused No. 1 and that all the accused were causing mental trouble to her." So these omissions on the part of Pw.3 are important and she has made improvement in her deposition in the Court and so her evidence cannot be relied upon."

And, in paragraph Nos. 40 & 41 at page 487 to 491 the trial court has observed thus"

"Pw. 3 is subjected to a detailed cross examination by the learned counsel for the accused and I have already referred to her admissions regarding the improvements and omissions in her evidence which are brought on record by confronting her with her statement to the police and in this respect the material portions at SI Nos. 7, 10, 13, 15, 18 of the letter Exh.

25, 30 of Exh. 29 are most material and all these letters go to indicate that there was sexual mal-adjustment between deceased Shubhangi and accused No.1 and although Shubhangi was having love and affection and also devotion to her husband she was unable to give marital bliss to accused No.1 and even deceased Shital herself as well as Pw.3 Sushma Parkar had advised accused No.1 to take the matter peacefully with cool head so that the matter should not go to worse and cordial relation should be maintained. But unfortunately even after medical treatment given to Shubhangi as suggested by accused No.1, still there was no improvement and Pw.3 has informed accused No.1 that Shubhangi has been cured after treatment and that even if Shubhangi is not cured still accused No.1 may take her to Bombay for better treatment. It further appears from the evidence of Pw.4 Shubhangi Parkar that she has written letter to one Kanohanmala that she may give advise to accused No.1 that accused No.1 should come back. It appears that the accuse No.1 had gone to Bombay as he was angry and dissatisfied on account of the fact that he realised that he is not getting sexual satisfaction from Shital since after the marriage. Pw.3 has also admitted that she has not mentioned about any harassment to Shubhangi by accused Nos. 1 to 3. In these letters even remotely and their relations with accused were cordial even when there was Shradha ceremony of Shital a grand-father in their house on chathurthi and her husband has written letter to accused No.2 vide Exh. 32 dated 13/12/1985 to send Shubhangi to their house for Shradha and accordingly Shubhangi had come for Shradha ceremony. It is also admitted by Pw.3 that accused No.1 used to make attempt to improve strain relations between the families as a social worker.

However, para 13 and 14 of the cross-examination of Pw.3 Sushma Parkar clearly indicates that she has not stated anything about the trouble alleged to have

to Shital about not giving of food or not allowing Shubhangi to talk with accused No.1 or that all the accused caused mental agony to Shubhangi. Similarly Pw. 3 has not stated to the police that Shubhangi told her that accused No.1 used to say that he does not get marital bliss from her even though he was having it. It further appears that Pw.3 first visited accused's house before writing letter dated 22.5.1984 but at that time accused No.1 was not in the village but was not present in the house. But Pw.3 did not inform any male person in her family to see accused Nos. 2 &

3. Similarly Pw. 3 has not stated before the police that Shubhangi was telling her that accused Nos. 2 & 3 are still teasing her and accused No.1 is demanding the amount. So from all these evidence of PW.3 Sushma Parkar it is clear that her evidence does not inspire confidence regarding the harassment by the accused persons to her daughter Shubhangi so as to show that such harassment has driven Shubhagi to commit suicide."

9. To my mind, there is no reason to take a different view in the matter. The trial court has rightly analyzed each of the aspects and has concluded that evidence of Pw.3 was untrustworthy. It is not in dispute that Pw.3 is the star witness of the prosecution, being the mother of the deceased. This evidence as is required to be disorder, the entire prosecution case should naturally fall to the ground. However, reliance has been placed on the evidence of Pw.5 by the Ld. A.P.P. to support his argument that the deceased committed suicide because of harassment of repeated demands for Rs. 10,,,/-. My attention was drawn to paragraph Nos. 1 & 2 of the examination-in-chief of the witness. However, Ld. counsel for the respondent-accused has rightly drawn my attention to the admissions of Pw. 5 in paragraph No.6 during the cross-examination. This witness has admitted that it is not mentioned in his statement before the police that Shubhangi told him about her trouble at the hands of accused No.1 and demand of Rs. 10,000/- by him, and that accused No.1 had not behaved properly, when she had come for Shradha ceremony. This witness has clearly admitted that he had asked Shital as to what kind of trouble was given to her. But in response she had simply told that she was troubled. To put it differently, no details of harassment has been supplied by the witness. Inspite of this the Ld.A.P.P. contends that specific instance of repeated demands of Rs. 10,000/- has been made out by the prosecution witness and the matter could proceed against the accused on that basis. However, as observed earlier. it is not possible to countenance that plea. The trial court has rightly disoarded even this witness. In paragraph 27 & 28, the trial court has analyzed the evidence of this witness and has found that the same cannot be relied upon the record the finding of guilt against the accused. Paragraph 27 & 28 read thus,

"The prosecution has tried to rely upon the evidence of the uncle of deceased-Shital, viz., Ramchandra Parkar Pw.5, Exh. 38 to show that after 4 to 5 months of the marriage Shubhangi started telling them that accused No.1and his parents are causing trouble to shital and accused demanded money from her and Shubhangi committed suicide by consuming poison because she was troubled by accused persons and that is what he learnt subsequently.

In the cross examination Pw.5 Ramchandra Parkar has stated that he told whatever information he had to the police when his statement was recorded and police had asked him about the reasons as to why Shital committed suicide and he was also asked about the trouble which Shital had from the accused and in further cross he has stated that he had asked Shital as to what kind of trouble is given to her by accused Nos.2 & 3 but she simply told that she is trouble. Further in para 6 of his deposition in cross, Pw.5 Ramchandra states that he was praying about the fact of

to Shital when police had come for investigation and int he FIR meeting with Shital, he had asked her about for which purpose accused are demanding money and Shital told him that accused wanted to purchase a room at Bombay but in his statement to the police Pw.5 Ramchandra has not made any mention even remotely that accused Nos. 2 & 3 were also troubling Shital and Shital told him accordingly.

Similarly, Pw.5 Ramchandra admits that he has not mentioned in his statement to the police that in the first meeting with Shubhangi she told him that accused are troubling her and demanding money from her and Pw.5 Ramchandra has not stated in his statement to the police that Shubhangi had told him about her trouble at the hands of accused No.1 and taken Rs. 10,000/- by him and that he has not behaved properly when Shubhangi had come for Shradha ceremony and for finally Pw.5 admits that "it correct that the only complaint Shubhangi made with him was that accused No.1 was seeing that he is not getting sufficient marital bliss from Shubhangi," But he did not ask Shubhangi as to what was the dissatisfaction complained of by accused No.1. Moreover, even if he is uncle of the deceased Shubhangi, Pw. 5 does not know as to on what ground accused No.1 issued notice of divorce to Shubhangi. So from all this evidence on record, it is clear that accused Nos. 2 & 3 are not shown to have caused a specific trouble or harassment to deceased Shital so s to drive her to commit suicide by consuming poison."

To my mind, there is no reason to take a different view than the one taken by the trial court for discarding even this witness.

10. That brings me to the letter Exh. 42, which is pressed not service.

It is not possible to examine the contents of that letter in isolation, as has been rightly observed by the trial court. The Trial court has rightly considered that letter along with the other letters of deceased; and having examined all the letters together, has recorded its opinion that deceased Shital was a frustrated woman and had become desperate on account of her feeling that she was unable to give complete sexual satisfaction and marital bliss to accused No.1 and she being a sensitive woman brought up in good family condition may have felt that the luck was against her and she is unfortunate in the consummation of the marriage with accused No.1 and in that state of mind she has committed suicide on that fateful day. That aspect has been discussed in paragraph No. 21 of the impugned judgment.

11. Having considered the above materials which were pressed into service by the Ld. A.P.P., I have not even a slightest doubt that the prosecution has miserably failed to establish the ingredients of Section 498-A of Indian Penal Code. On plain language of Section 498-A, it was necessary on the part of the prosecution to bring on record sufficient evidence regarding subjecting the wife of cruelty. In the present case, that evidence is not forthcoming. On the other hand, the defence taken by the accused seems to be more probable. During the course of argument, attempt was made by the Ld.A.P.P. to contend that the demand of rs. 10,000/- for expenses incurred towards litigation cost would come within the purview of Clause-b of explanation of the said Section. Assuming that the prosecution can be said to have established the fact of demand of Rs. 10,000/- for expenses incurred by the accused No.1 towards litigation cost, even then the same will be of no relevance and no conviction can be based on that basis for the offence under Section 498-A of the I.P.C. In asmuch as, Explanation-b, reads as follows:

"harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her of any person related to her to meet such demand."

12. On the other hand, the trial court has dealt with the matter in extenso and I find no reason to take a different view of the matter. It is relevant to note that the trial court has rightly observed that there is absolutely no satisfactory evidence against the accused Nos.2 & 3, for having indulged in the act of harassment being meted out to the deceased Shubhangi. Even the Pw. 4 has clearly admitted this position in paragraph No.5, during the cross-examination that Shital had no harassment from her father-in-law accused Nos. 2 & 3, as per her opinion till 27th February 1984. As was observed while analysing the evidence of Pw.3, the mother of the deceased has admitted that accused Nos. 2 & 3 were godly persons and both the families had cordial relations. Taking overall view of the matter, I have no hesitation in observing that there is no infirmity either in the approach or in the conclusion reached by the trial court in recording the order of acquittal in favour of the accused. Needless to mention that since the prosecution has failed to prove beyond reasonable doubt the allegation of any harassment or demand coupled with the finding recorded that the deceased was a sensitive girl and must have committed suicide due to frustration that she was not able to offer marital bliss to her husband, the charge under Section 306 of I.P.C. would necessarily fail.

Accordingly the order of acquittal as returned by the trial court on all the counts will necessarily have to be affirmed.

13. While parting I amy record that I have not analysed the evidence of other prosecution witnesses, as no submissions were made criticising the conclusion reached by the trial court in that behalf. Even if I were to examine the same. I have no hesitation in observing that the trial court has scrutinised the evidence of those witnesses as well as the documentary evidence. In my opinion, there is no infirmity either in the approach or in the conclusion arrived at by the trial court while analysing that evidence. To put it differently, I have no hesitation in affirming that view of the trial court.

14. Hence both the appeal as well as revision fail and same are dismissed. Ordered accordingly.