Bombay High Court
Sanjay Balaso Huzare & Ors vs The State Of Maharashtra on 31 March, 2016
Bench: S.S. Jadhav
Mhi 1 Appeal-352-1996.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 352 OF 1996
1. Sanjay Balaso Huzare )
)
2. Bbalaso Dnyanu Huzare )
3. Sou. Babutao Balaso Huzare )
All are residing at Kumbhoj, )
Taluka : Hatkanangale, )
District: Kolhapur. ) Appellants
vs. (Orig. Accused)
The State of Maharashtra ig ... Respondent
Mr. Sachin Chavan i/b. Mr. Sameer Tambekar,Advocate for the appellants.
Ms. A.A.Mane, APP, for the State.
CORAM: SMT. SADHANA S.JADHAV, J.
DATE : 31st March, 2016.
JUDGMENT :
The appellants herein are convicted for the offence punishable
under Sections 306 and 498A read with Section 34 of Indian Penal Code.
for the offence under Section 498A, each of the accused is sentenced to R.I.
for one year and fine of Rs.250/- in default S.I. for two months and for the
offence punishable under Section 306 read with Section 34 of IPC, the
accused are sentenced to undergo R.I. for two years and fine of Rs.250/- in
default S.I. For two months.
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2. Such of the facts necessary for the decision of this appeal are
as follows :-
(a) Accused No.1 had got married to Kamal five years prior to the
incident.
(b) On 11.4.1993, Pandurang Ganpati Powar lodged a report at the
police station alleging therein that on 16.5.1991, Kamal got married to
Sanjay son of Balaso Huzare, a resident of Village Kumbhoj. That he had
presented one tola gold ring, watch, clothes and household utensils to
Sanjay at the time of marriage. That Kamal was treated well for first four
months. However, thereafter, her in-laws and husband had ill-treated her on
account of demand of safe, gold chain and watch. At the time of visiting
Kamal had informed her parents about the said demand by the in-laws.
After they had persuaded her to return to her matrimonial house and that
due to financial difficulties, he could not fulfill the demand. He had
received a letter from his daughter dated 28.1.1993, wherein she had
disclosed ill-treatment meted out to her on account of demand. She had
threatened in the said letter that she does not wish to live any more. They
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had apprehended danger to her life and, therefore, he had rushed to her
matrimonial house and had persuaded the accused persons. They had
brought their daughter to her maternal house. She stayed in her maternal
house for about 1-1/2 month and thereafter her father-in-law had been to
fetch her. After 15 days, he had gifted a Sari for Kamal and went to her
husband Sanjay. On 9.4.1993, he had been to the house of his daughter and
at that time, he had again requested her in-laws to take care of her. On
10.4.1993, two persons from village Kumbhoj informed him that Kamal
had expired. He rushed to the house of his daughter along with his wife and
other relatives. He saw the dead body of his daughter. Upon enquiry, he
learnt that she committed suicide by hanging herself at about 1 to 1.30 p.m.
The police prepared inquest panchnama and handed over the dead body for
funeral. On the basis of which Crime No.42 of 1993 was registered against
the accused for the offence punishable under Sections 498A and 304B of
the Indian Penal Code. After completion of investigation, charge sheet was
filed on 24.6.1993. The case was committed to the Court of Sessions and
registered as Sessions Case No.126 of 1993.
3. PW-1 Pandurang Ganpati Powar happens to be the
complainant i.e. unfortunate father of deceased Kamal. He has deposed
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before the Court that 3 years after the marriage of Kamal he had received a
letter from his daughter in which she complained about the illegal demand
made by the accused. She had specifically written that since her parents
were unable to give her the gold chain, wrist watch, etc. she was harassed.
Kamal was of the opinion that her father had deceived her by settling the
said marriage. The letter dated 27.1.1993 is at Exhibit 23. He has deposed
before the Court that his daughter was called by name Gunita and the
accused had named her as Kamal. Since PW-1 was illiterate, the letter was
read over to him by Bajarang Chougale. He had been to Village Kumbhoj
and brought his daughter to the maternal house. He had also ventilated his
grievance against the accused. After 1-1/2 month the accused No.2 i.e.
father-in-law had been to their house to fetch Kamal. He had informed
accused No.2 that he would send Kamal after a fortnight and thereafter he
had been to the house of Kamal along with his relatives and had extended
gifts to his son-in-law i.e. accused No.1.
4. PW-1 had been to her house 15 days thereafter and had
enquired about her well-being. She had informed him that she was not
happy with her husband and her in-laws as they were ill-treating her. He
had requested her in-laws not to ill-treat his daughter. He has deposed
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before the Court that on the 3rd day of Kamal's death, he had received a
letter which had a postal stamp dated 13.4.1993. He had received the
information about the death of his daughter. He has deposed in consonance
with the first information report which is marked at Exhibit 25. It is also
admitted before the Court that the accused are relatives of PW-1.
5. The learned counsel for the appellants submits that there are
inherent omissions and contradictions in the substantive evidence of PW-
1.
6. Post-mortem was conducted and the dead body was cremated
at Kumbhoj by the accused. PW-1 had not attended the funeral. They had
returned to their village. After discussion with the relatives, they had
decided to lodge the complaint. He has admitted that he had not given the
notebooks of Kamal to the police. That he had given the letter to the police
on the day on which he lodged the report. He had not drawn the insurance
police in the name of his daughter.
7. PW-2 - Bajarang Chougale is the friend of PW-1. He has
deposed before the Court that her marriage was settled and a list was
prepared which would show the exchange of articles between both the
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families. The list is at Exhibit 21. Immediately after settlement of the list,
marriage was performed in front of the house of PW-1. PW-1 had gifted
golden articles to his daughter and his son-in-law. On one occasion, when
Kamal had been to her maternal house, he had enquired with her about
welfare and at that time she had categorically stated that she was not happy
in her matrimonial house as she was being ill-treated. That he has further
proved that he had read out the letter written by Kamal to her father as her
father was an ill-iterate.
8. PW-3 Sambha Powar is the brother of deceased Kamal. Before
the Court he has reiterated the allegations and contentions of PW-1. He has
deposed before the Court that he had informed the police that he can
identify the handwriting of his sister and that the letters are in her
handwriting. After her death, they had received the second letter. The
learned counsel submits that there are inherent omissions in the deposition
of PW-3.
9. PW-4 Balwant Patil was working as Primary teacher in Kanya
Vidya Mandir at Village Savarde. He was acquainted with PW-1 and his
daughter Kamal a she was studying in Kanya Vidya Mandir from 1st to 7th
Mhi 7 Appeal-352-1996.sxw
Standard. PW-4 was teaching the subjects Marathi and Social Studies. He
can identify her handwriting. He was confronted with the letters at Exhibits
23 and 24 and he has admitted them to be written by the deceased Kamal.
In the cross-examination, he has stated that there were 263
students in that school. He has admitted that he has not taken any special
training in graphology. It is admitted that there is variance in the
handwriting in both the letters. That he had not produced any notebook
before the police.
10. PW-5 Nandkumar Chavan was attached to Hatkanangale
Police Station as API. He has deposed before the Court that initially
accidental death was registered under Section 174 of Cr.P.C. On 10.4.1993
vide A.D. No.28/1993. On 11.4.1993, the father of the deceased had
lodged a report at the police station. That inquest panchnama and spot
panchnama had been conducted in the A.D. Enquiry and that charge-sheet
was filed on 24.6.1993. He has admitted in the cross-examination that he
had not enquired as to whether the statements of the witnesses was
recorded in the A.D. Enquiry. He has also admitted that he had not
conducted the panchnama at the time of recovery of the said letters at the
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instance of the complainant. He has further admitted that he had not sent
the letters to the handwriting expert. That it had transpired in the
investigation that on 9.4.1993, Pandurang Powar had been to the
matrimonal house of deceased Kamal and that on the day of incident, her
elder sister Kamal was in her company. That she had been to the
agricultural field to call the accused persons and when she returned she saw
the dead body of Kamal.
11.
It is a matter of record that A.D.No.28 of 1993 was registered
on the basis of the information given by accused No.2 on 10.4.1993. The
accused No.2 had informed the police that on 9.4.1993, Kamal's father had
been to their house to see her. That on 9.4.1993, at about 12 noon his
cousin Rajakka had been to the agricultural land along with his daughter
Sunita. He continued to work in the agricultural field along with his wife.
At 2 p.m., Deepak Nikam informed him that Kamal has expired. They
rushed to the house only to see that dead body of Kamal was lying on the
cot. He then learnt that his daughter-in-law had committed suicie.
12. Upon perusal of the evidence adduced by the prosecution, it
can be said that this is a case of circumstantial evidence. The prosecution
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has not examined Rajakka or any other witness to substantiate as to how the
dead body of Kamal was lying on the cot when it was first seen by accused
No.2. It is the case of the prosecution that she had committed suicide by
hanging. The learned Sessions Court has acquitted the accused of the
charge under Section 304B of the Indian Penal Code. It appears that the
post-mortem notes are at Exhibit 19. The opinion of the medical officer is
as follows :-
"Probable cause of death : Asphyxia due to hanging"
It is a matter of record that at the stage of admission, no notice of
enhancement was issued nor the prosecution has challenged the acquittal
under Section 304B of IPC. There are letters on record which would show
that the deceased had lost hope in life due to the ill-treatment meted out to
her. However, there was no panchnama recorded at the time of seizure of
the said letters. The said letters were not sent to the handwriting expert to
ascertain as to whether the deceased was the scribe of the said letters. This
Court has seen the postal stamps on the said letters and it appears that they
had been sent from village Kumbhoj. However, for want of evidence to
establish the authorship of the letters, there is no substantive evidence to
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establish that the deceased was the author of the said letters. The
investigation was carried out in a casual manner. In fact, there was
documentary evidence to show that an young girl had died in her
matrimonial home after informing her parents (by letters) that she felt
cheated. That due to harassment and ill-treatment, she had lost hope to live.
However, the said letters were not proved in accordance with law since the
I.O. had not investigated the case seriously.
13. The Court has to exercise constraints and cannot travel beyond
the papers of investigation or the evidence adduced by the prosecution. The
Court record record a moral conviction. There is no evidence on record to
indicate that the accused-appellant had aided, abetted or faciliated the
commission of suicide.
14. As far as Section 498A of Indian Penal Code is concerned,
there is ample evidence to show that the accused have committed an
offence punishable under Section 498A of IPC. Section 498A of IPC
contemplates as follows :-
"498-A. Husband or relative of husband of a woman
subjecting her to cruelty - Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine.
Explanation - For the purpose of this section "cruelty"
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means -
"(b) 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 or is
on account of failure by her or any person related to her to meet
such demand."
There is no doubt that PW-1 visited the house of Kamal on 9.4.1993 and at
that time she had disclosed that she was not happy in her matrimonial house
and, therefore, it is apparent that the willful act and conduct of the accused
is in proximity to the cause of her death. Moreover, father of Kamal
received the letter two days after her funeral. It can be safely inferred that
the letter was written just a day prior to her commission of suicide. The
letters by itself depict reprehensible conduct of the accused persons. That
since she had died in her matrimonial house, it is incumbent upon the
accused No.1 to offer an explanation under Section 106 of Indian Evidence
Act.
15. Upon appreciation of evidence, it can be safely said that the
accused-appellants deserve to be acquitted of the offence punishable under
Section 306 of IPC. However, their conviction for the offence punishable
under Section 498A of Indian Penal Code needs to be maintained.
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16. Accused No.1 was arrested on 11.4.1993 and was enlarged on
bail by an order dated 11.11.1993. The appellants are convicted by a
judgment and order dated 15.5.1996 and sentenced to R.I. for one year for
the offence punishable under Section 498A of IPC. Hence, the following
order :-
ORDER
(i)
The appeal is partly allowed.
(ii) The appellants are acquitted of the offence punishable under
Section 306 of IPC read with Section 34 of IPC. However, their conviction
for the offence punishable under Section 498A of IPC is maintained.
(iii) The accused-appellants are sentenced to the period already
undergone. However, the sentence of fine is enhanced to Rs.500/- each.
The amount to be deposited before the Sessions Court within eight weeks
from today. The accused shall deposit collectively an amount of Rs.1500/-
in the Sessions Court.
(iv) Amount of Rs.250/- deposited towards fine be deducted from
the quantum of fine.
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(v) Their bail bonds stand cancelled.
Appeal stands disposed of.
(SMT.SADHANA S.JADHAV, J.)
