Kamlakar Keshavrao Joshi vs State Of Maha & Ors
2016 Latest Caselaw 5064 Bom

                                          1       Cr. Revn. Appln. 34/2004



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD




                                                                            
               CRIMINAL REVISION APPLICATION NO. 34 OF 2004




                                                   
    Kamlakar S/o Keshavrao Joshi,
    Age : 60 years, Occu.: Business,
    R/o Plot No.14, N-8/E,




                                                  
    Vishwakarma Society,
    CIDCO, Aurangabad                                         .. Applicant

          Vs.




                                             
    1] The State of Maharashtra
       Through Police Station, Beedig
    2] Avinash S/o Balsaheb Wangikar,
       Age : 36 years, Occu.: Service,
                                 
    3] Balsaheb S/o Venkatrao Wangikar,
       Age : 64 years, Occu.: Pensioner,

    4] Sushilabai Balsaheb Wangikar,
      

       Age : 59 years, Occu.: Household,
   



       Nos. 2 to 4 R/o Shahunagar,
       Beed, District Beed                                .. Respondents

                                 ----





    Mr. K.M. Babhulgaonkar, Advocate for the applicant 
    Mr. R.V. Dasalkar, A.P.P. for the respondent/State
    Mr. Girish K. Naik Thigle, Advocate for respondent nos.2 to 4
                                 ----

                                           CORAM : N.W. SAMBRE, J.

DATE : 30/08/2016

ORAL JUDGMENT :

Heard.

2. In Sessions Case No. 93 of 2002, the

2 Cr. Revn. Appln. 34/2004

respondents/accused were acquitted of the offences

punishable under section 498-A, 306 r/w. 34 of the

Indian Penal Code by the learned II Adhoc Additional

Sessions Judge, Beed vide judgment and order dated

21/11/2003. As such, this revision by the complainant

seeking remand.

3. Shri Babhulgaonkar, learned counsel for the

applicant while trying to make out case for remand,

would urge that the presumption under section 113-A of

the Indian Evidence Act, is required to be considered,

as the incident in question has occurred on 9/4/2002,

resulting into suicide by the wife of accused no.1 -

Avinash within 7 years from the date of marriage, which

is 7/6/1995.

4. Apart from above, Advocate Shri Babhulgaonkar

would urge that the contents of the suicide note exhibit

56 confirms the only conclusion that the cause of death

of deceased Madhuri is the cruelty attributed by the

respondents accused for demand of dowry, which has

prompted the victim to commit suicide. He would then

submit that the evidence of PW1 - Prabhawati and PW2 -

3 Cr. Revn. Appln. 34/2004

Kamlakar, the complainant is dis-believed by the Court

below incorrectly and if the cumulative effect is given,

there is strong case for conviction of the

respondents/accused. According to him, therefore, the

matter needs to be remanded.

5. Learned A.P.P. supported the learned counsel

for the applicant/complainant and submits that the

acquittal ought not have have been ordered in the matter

by the learned Additional Sessions Judge.

6. Shri G.K. Naik Thigale, learned counsel for the

respondent nos.2 to 4 / accused persons would submit

that the acquittal, as is ordered, is based on the

testimony of the witnesses, who were examined by the

prosecution and the other documentary evidence.

According to him, even if the suicide note which is

relied on by the complainant at exhibit 56 does not

attribute any criminal intention to the accused persons.

He would then urge that the cause for deceased Madhuri,

wife of accused no.1 - Avinash, to commit suicide, is

her medical problem, for which, she was under treatment

since long and was unable to conceive for the second

4 Cr. Revn. Appln. 34/2004

time. According to him, the material available on

record depicts that there was co-ordial atmosphere at

the house of the accused persons, where deceased Madhuri

was cohabiting with accused - Avinash. According to

him, the revision needs to be rejected.

7. With the assistance of the respective learned

counsel, I have perused the original record in the

matter. The prosecution story, as appears from the

contents of the FIR and other investigation papers, is

that deceased Madhuri, daughter of PW1 - Prabhawati and

PW2 - Kamlakar was married to accused no.1 - Avinash on

7/6/1995.

8. Thereafter, it appears that she was having some

gynecological problem and was under treatment and as

such, gave birth to a female child in September, 2000.

After the birth of the child in 2000, Madhuri committed

suicide by leaving behind suicide note - exhibit 56 on

9/4/2002. Exhibit 56 - suicide note was addressed to

her husband i.e. the accused no.1, wherein she has not

attributed a specific role to each of the accused in the

commission of crime.

5 Cr. Revn. Appln. 34/2004

9. So far as accusation against the present

respondents are concerned, charge came to be framed

against them at Exhibit 9.

10. In support of the prosecution case, Prabhawati

PW1, mother of Madhuri examined at Exhibit 16, Kamlakar,

father of deceased Madhuri - informant is examined at

Exhibit 24. PW3 - Asaram at Exhibit 42, ASI - Shivaji

Dhas examined at Exhibit 45 and hand-writing expert -

Parshuram Dhotre is examined at Exhibit 53,

Investigating Officer PSI Shere is examined at Exhibit

67. In addition to exhibit 25, the complaint, inquest

panchanama at Exhibit 43, the information tendered by

accused - Balsaheb at Exhibit 46, seizure panchanama of

inland letter exhibit 47, report of hand-writing expert

at exhibit 54, post-mortem note exhibit 48, inland

letters at exhibit 26. Exhibit 27 to exhibit 40 - the

letters written by PW1 - Prabhawati to accused persons

and deceased Madhuri.

11. While trying the case for conviction for the

offences punishable under section 498-A and 306 of the

Indian Penal Code, it is required to be first find out,

6 Cr. Revn. Appln. 34/2004

as to whether cruelty was practiced on deceased Madhuri

by accused persons or not and whether such cruelty was

of such a gravity, which had driven Madhuri to commit

suicide by causing danger to her life.

12. Apart from above, suicidal death and the

abetment by the present respondents/accused persons or

such act of cruelty practiced by respondents/accused

persons to drive Madhuri to commit suicide, is required

to be appreciated from the material on record.

13. Panch witness - Asaram has proved the spot

panchanama and the recovery of material, such as match

stick box, burn pieces of the clothes. Initially, the

accidental death case came to be registered in the crime

and the investigation was set in motion. The scene of

the offence is the matrimonial house of deceased

Madhuri, where she used to reside with the accused

persons. It is not in dispute that deceased Madhuri has

died of 100% burns. The cause of death, as is stated in

the post-mortem report Exhibit 48 speaks of superficial

to deep 100% burns and deep burns over the left thigh

present. She died of cardio respiratory arrest due to

7 Cr. Revn. Appln. 34/2004

superficial to deep 100% burns. As such, it was

established by the prosecution that Madhuri has

committed suicide by pouring kerosene on herself.

14. So as to find out whether deceased - Madhuri

was subjected to cruelty or the accused persons have

meted out any cruelty to Madhuri, the evidence of PW1 -

Prabhawati and PW2 - Kamlakar is required to be

appreciated.

15. Before discussing the same, it is to be noted

that the inland letter Exhibit 26 was noticed to have

been written by deceased - Madhuri to her father and the

said letter at Exhibit 26, suicide note Exhibit 56 a

diary written by Madhuri was also sent for the opinion

of hand-writing expert and the opinion given by the

hand-writing expert speaks that the letter and the

diary, both were written by the same person.

16. It is to be noted that PW1 and PW2 are the

parents of deceased Madhuri, who have deposed that after

the marriage in 1995, deceased Madhuri was treated well

initially for six months. It is then claimed that an

atmosphere was created that accused - Avinash was having

8 Cr. Revn. Appln. 34/2004

offers from about 3-4 persons with offer of dowry of

Rs.2-3 Lakhs, however, Madhuri was subjected to cruelty

for not fulfilling the demand of dowry. If the evidence

of PW1 - Prabhawati to that effect is appreciated, in

which she has admitted that she cannot tell, as to when

for the first time, she came to know about the demand of

dowry made by the accused persons. It is also brought

on record that there was no personal talk between these

witnesses with the accused persons qua the payment of

such dowry amount. Rather, the witness Prabhawati has

admitted that accused persons never complained about any

dowry issue to her and she never talked or discussed

about the said issue with the accused persons.

17. So far as the evidence of PW2 - Kamlakar is

concerned, he has also admitted that he has never talk

with the accused persons as regards their complaint

about dowry. It is then required to be noted that the

complainant/Kamlakar and Prabhawati and family members

of deceased Madhuri and herself visited the places of

each other number of times and the atmosphere, as is

reflected, as could be noted from the letters which were

recovered vide exhibit 26 to 40 speaks of a very

9 Cr. Revn. Appln. 34/2004

congenial atmosphere in between the parties. It is then

to be noted that the fact remains that Madhuri used to

frequently visit her parental house and while exchanging

the letters, also, at no point of time, orally or in

writing, she communicated about the cruelty based on the

non-fulfillment of demand of dowry. It is then to be

noted that Madhuri was having some gynecological problem

and was required to be under treatment of the Doctors at

Beed so also at Aurangabad. It is required to be noted

that accused - Avinash, at times, used to accompany

Madhuri to her parental house at Aurangabad for the

treatment purpose and even at that point also,

complainant or his wife never raised an issue as regards

the cruelty meted out to their daughter.

18. The delivery of Madhuri after about 4-5 years

from her date of marriage and the celebration to that

effect, as is reflected in the evidence of both these

witnesses, speaks of manner and mode in which Madhuri

was treated by the accused persons. It will not be out

of place to mention that Madhuri, a Science Graduate was

well versed with the communication skills and as such

absence of any opportunity to communicate, Madhuri could

10 Cr. Revn. Appln. 34/2004

not have informed about the cruelty meted out by the

accused persons to her, to her parents, is out of

question.

19. The other issue, as regards the demand of

amount of Rs.1,50,000/- for the purpose of construction

of house made by the accused persons, it is required to

be noted that accused no.2 Balsaheb was retired from the

Government service as a Live Stock Officer and received

about Rs.6 Lakhs as his retirement benefits. During the

evidence, it is brought on record that certain amount

was put into fixed deposit in the name of deceased

Madhuri by the accused persons. Apart from above, it is

in the year 1998, or even prior to that, two storied

house was already constructed by all the accused persons

and the fact remains that the family of accused persons

consist of only 4 persons including that of Madhuri and

as such, the demand of dowry for the purpose of

construction of house and the financial instability of

the accused persons, if required to be assessed from the

evidence, the prosecution story to that effect, in my

opinion, is required to be disbelieved and is rightly

disbelieved by the learned Additional Sessions Judge.

11 Cr. Revn. Appln. 34/2004

20. This takes me to the further consideration as

regards the suicide note left by the deceased Madhuri

which is at Exhibit 56. The plain reading of the said

document, which is written on April 9, 2002 gives an

feeling that the same was written out of frustration by

the deceased. It is to be noted that in the background

of the fact that the medical problem faced by deceased -

Madhuri, her attempt to become a mother for the second

time and the fact that she was required to undertake the

medical aid time and again for that purpose, perhaps, is

the cause for frustration, which has prompted her to

take the extreme step of committing suicide. It is then

to be noted that it was not brought on record during the

evidence that any cruelty was practiced on deceased

Madhuri for demand of dowry and such cruelty was of such

a high gravity, which has prompted her to commit

suicide. Rather, it could be inferred from the record

that the offence under section 498-A of the Indian Penal

Code was at all not proved.

21. The next charge, which is required to be faced

by the respondents/accused, is in relation to section

12 Cr. Revn. Appln. 34/2004

306 of the Indian Penal Code. Once it is brought to my

notice that deceased Madhuri was not subjected to

cruelty and the atmosphere at home was rather healthy

and the important background of the story that deceased

Madhuri was required to undertake medical aid/treatment

for the major gynecological issue, has prompted her to

commit suicide, in any case, cannot be stretched to the

extent of the offence punishable under section 306 of

the Indian Penal Code. The day on which deceased

Madhuri committed suicide, if is to be assessed in the

background of the prosecution story, the accused no.1

Avinash on the said day, had gone to his bank for duty

purpose, accused no.2 - Balsaheb and accused no.3 -

Sushilabai went to the place of brother-in-law -

Kalyanrao for certain celebration and it is at that

point of time, at around 3.00 pm, a call was received by

one Mr. Joshi, informing him about some serious issue

and calling him to be at his place. All this

eventuality depicts that no inference could be drawn qua

the attempt on the part of the accused persons to drive

deceased Madhuri to commit suicide.

22. So far as the presumption under section 113-A

13 Cr. Revn. Appln. 34/2004

of the Indian Evidence Act is concerned, it is required

to be noted that the marriage of deceased with accused -

Avinash took place on 7/6/1995, whereas Madhuri died on

9/4/2002. The death is within the period of 7 years

from the date of the marriage. Once it is held that

Madhuri has committed suicide and the offence punishable

under section 498-A of the Indian Penal Code was not

proved as against the accused persons, in my opinion,

the presumption, as to the abetment of suicide under

section 113-A of the Indian Evidence Act, is not

available and is rightly held so by the learned

Additional Sessions Judge.

23. As such, no case for consideration in the

revisional jurisdiction of this Court, is made out. The

revision as such fails and is rejected. Rule stands

discharged.

[N.W. SAMBRE] JUDGE arp/