Bombay High Court

Shivaram Manohar Kalange vs The State Of Maharashtra on 4 May, 2016

Bench: S.S. Jadhav

    Mhi                                   1               Appeal-733-1996.sxw


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION




                                                                                         
                           CRIMINAL APPEAL NO. 733 OF 1996




                                                                 
          Shivaram Manohar Kalange                           )
          Age: 39 yrs., R/o Warne, Taluka &                  )




                                                                
          Dist. Satara.                                      )        Appellant
                        vs.                                      (Orig. Accused)
          The State of Maharashtra                  ...               Respondent

          Ms. Bhagyashri Gawas, Appointed Advocate, for the appellant.




                                                
          Mr.S.S.Pednekar, APP, for the State.
                                     ig   CORAM: SMT. SADHANA S.JADHAV, J.
                                          DATE : 4th May, 2016.
                                   
          JUDGMENT :

1. The appellant herein stands convicted for the offence

punishable under Section 306 of the Indian Penal Code and is sentenced to

suffer R.I. for five years and to pay fine of Rs.1,000/-, in default R.I. for

one year, he is also convicted for the offence punishable under Section

498A of IPC and is sentenced to suffer R.I. for one year and fine of

Rs.500/-, in default to suffer R.I. for six months by the Addl. Sessions

Judge, Satara in Sessions case No.110 of 1993 vide judgment and order

dated 28.11.1996. Hence, this appeal.

2. Such of the facts necessary for the decision of this appeal are

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as follows :-

(i) The appellant was married to Sitabai in the year 1988. The

couple was blessed with two children. At the time of settlement of

marriage, it was agreed between the parties that an amount of Rs.10,000/-

will be paid to the appellant towards dowry. Due to economic stringency,

the father of the bride could not pay whole amount of Rs.10,000/- and,

therefore, Rs.2,000/- was paid towards dowry on the assurance that the

balance would be paid at the earliest.

(ii) It is the case of the prosecution that after six months of the

marriage, Sitabai was being harassed and ill-treated by her husband under

the influence of alcohol. He insisted upon her to fulfill the demand of the

balance of the dowry amount. She had accordingly conveyed the message

to her parents. It is further the case of the prosecution that on 17.2.1993,

father of Sitabai had visited her. After his departure, Sitabai committed

suicide by drowning. She had jumped into the well along with her two

children at Village Warane. The dead bodies were found floating in the

well owned by one Bajrang Dnyanu. The Police Patil of the village reported

to the Satara Taluka Police Station on 18.2.1993. The case was

registered as A.D. No.10 of 1993. On 18.2.1993, Inquest panchnama was

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conducted on the dead bodies in A.D. No.10 of 1993. under Section 174 of

Cr.P.C. The inquest panchnama is at Exhibit 8.

(iii) On 19.2.1993, Sarjerao Jadhav had lodged a report at Satara

Taluka Police Station alleging therein that his daughter Sitabai was being

harassed, ill-treated and meted out with cruelty on account of non-fullment

of the balance amount of Rs.8,000/- towards dowry. According to him, on

17.2.1993, he had visited the house of Sitabai along with his younger

daughter Sunita. At that time, Sitabai was in the agricultural land. She had

informed him that for the past three weeks, she is being abused and

assaulted by her husband on account of dowry. The father had requested

her to accompany him. Sitabai had refused on the ground that she would be

assaulted after her return. Therefore, she refused to accompany her father.

On 18.2.1993, at about 10 a.m., brother-in-law of Sitabai had informed him

that Sitabai had committed suicide along with her two daughters. On the

basis of his report, the crime was initially registered at 0 number for the

offence punishable under Sections 498A, 306 and 304-B of IPC. The

matter was transferred to Borgaon Police Station for proper investigation

and it was registered as Crime No.18 of 1993. The accused was arrested on

19.2.1993. After completion of investigation, charge-sheet was filed on

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6.4.1993. The case was committed to the Court of Sessions and registered

as Sessions Case No.110 of 1993. The prosecution examined six witnesses

to bring home the guilt of the accused.

3. Upon perusal of the substantive evidence adduced by the prosecution,

it appears that PW-1 Sarjerao Jadhav is the complainant. PW-1 has deposed

before the Court in consonance with the first information report lodged by

him. It is submitted before the Court that Sitabai used to visit her maternal

house 4 - 5 times in a year. She had gone to her maternal house for

delivery and at the time of second delivery, she had stayed with her parents

for about six months. At that time, she had complained about the ill-

treatment and cruelty meted out to her at the hands of her husband. It is

also admitted that after the second delivery, being fed up with cruelty,

Sitabai had demonstrated her reluctance to return to her matrimonial house.

However, PW-1 had reached to her matrimonial house and had also

convinced the accused that he would put in his best efforts to pay the

remainder amount at the earliest. He has also specifically stated on oath

that on 17.2.1993, when he met his daughter, she had informed him that she

was being harassed for 3 weeks. That the dead body of Sitabai was brought

to Satara for autopsy and, therefore, he had reported the matter to

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Satara Police Station. The first information report is marked at Exhibit 15.

4. PW-1 has admitted in the cross-examination that the accused

was serving at Bombay and was visiting his village once in a four months

or so. That Sitabai used to manage the agricultural land. He has denied the

suggestion that on 17.2.1993, he had demanded the same amount from his

daughter and there was a quarrel between them on that count and hence she

had committed suicide.

5. It is pertinent to note that the witness has not been shattered in

the cross-examination as far as cruelty and ill-treatment is concerned.

However, it needs to be noted that the accused was serving at Bombay and

used to pay a quarterly visit to his native village.

6. PW-2 Tukaram Jadhav is the maternal uncle of Sitabai. He

has deposed in consonance with PW-1.

7. PW-3 Shivaji Jadhav is the real brother of deceased Sitabai.

He has also deposed in consonance with PW-1. Certain omissions are

elicited in the cross-examination. However, since they are not material

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omissions, they do not deserve any discussions.

8. PW-4 Madhukar Kadam was working as a PSI at the Satara

Taluka Police Station. PW-4 has deposed before the Court that on

18.2.1993, PW-1 Sarjerao had lodged a report at the police station which

was recorded as per his narration and the same is marked at Exhibit 15.

PW-4 has deposed before the Court that the offence had taken place within

the jurisdiction of Borgaon Police Station and, therefore, he had registered

the same at 0 number. The cross-examination is declined by the deponent.

9. PW-5 Bapu Jadhav is the Police Head Constable of Borgaon

Police Station. On the basis of the communication by Satara Police Station,

PW-5 had registered Crime No.18 of 1993. The cross-examination is

declined.

10. PW-6 Gopal Thube who was officiating as Police Sub-

Inspector, was attached to Borgaon Police Station. He is the investigation

Officer of Crime No.18/1993. He has deposed before the Court that inspite

of steps taken y him in the course of investigation, the cross-examination is

declined.

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11. It appears from the records that spot panchnama at Exhibit 12

and the post-mortem report are admitted by the defence. It is an admitted

position that Sitabai had committed suicide along with her daughters and

the cause of death is Asphyxia due to drowning. Therefore, the suicide is

admitted.

12. The learned APP submits that in fact the accused ought not to

have been acquitted under Section 304B of the Indian Penal Code. Since

there is cogent evidence that on 17.2.1993, deceased Sitabai had disclosed

to her father that she was being harassed and ill-treated on account of

demand of dowry and hence it is dowry death. However, this submission

cannot hold ground after 20 years of admission of the appeal. The

prosecution has not filed any appeal against acquittal for the offence

punishable under Section 304-B of the Indian Penal Code.

13. The learned counsel for the appellant submits that till

18.2.1993, there was no complaint against the accused. Much emphasis is

laid upon the admission of PW-1 that the accused was residing at Mumbai

and, therefore, it cannot be said that there was continuous harassment and

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ill-treatment.

14. Upon perusal of evidence, it appears that the prosecution has

not brought on record any evidence to indicate that on 16 th or 17th February,

1993, the accused was in Village Warane and therefore it cannot be said

that there was abetment or instigation to commit suicide. It also cannot be

said that the accused-appellant had facilitated the commission of suicide

and, therefore, the conviction under Section 306 of IPC would not be

sustainable.

15.

The learned APP submits that in fact the appellant should be held

liable for the death of Sitabai. It is a unique case where the prosecution has

not brought on record any inquest panchnama or post-mortem notes as far

as the death of two children are concerned. Therefore, all that is before this

Court is the evidence of Sitabai having committed suicide by jumping into

the well along with her two children. The lacunas in the course of

investigation are writ large on the face of record. However, in an appeal,

this Court cannot go beyond the record and therefore, the same cannot be

considered. Therefore, the submission of the Prosecutor that the accused-

appellant should be held responsible for the death of two children cannot be

considered. The appellant cannot be held responsible for the death of two

children as it was Sitabai who had jumped into the well along with two

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children. This Court cannot be oblivious of the fact that deceased had not

led a peaceful marriage. She had apprehension that after her demise, her

children would not be looked after properly and to save them from a

disastrous future, she had committed suicide along with her two children.

In the absence of any evidence on record, to even remotely indicate that

soon before her death, the accused had meted her with such cruelty that she

had no other alternative but to commit suicide. It cannot be said that the

appellant could be convicted for the offence punishable under Section 306

of IPC.

It also cannot be said that the deceased had no other alternative for

the simple reason that her father PW-1 had offered her to accompany him to

her maternal house. It is not the case of the prosecution that because of

poverty in her maternal house, she had refused to go, but on the other

hand, it appears that she would be forced to cohabit with her husband some

time later on and at that stage she would be again harassed and therefore

she had declined to go along with PW-1.

PW-1,PW-2 and PW-3 also have not deposed before the Court that on the

date of incident, PW-1 had met her husband or even questioned him about

the treatment meted out to the deceased.It is in view of the above discussion

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that the accused-appellant stands acquitted of the offence punishable under

Section 306 of IPC.

16. This Court also cannot be oblivious of the fact that after six

months of marriage, deceased Sitabai had complained to her parents about

the ill-treatment meted out to her on account of demand of dowry. In all

probabilities, the ill-treatment was to such an extent that it was even

difficult for her to give a second thought of continuing the marital relations

along with the appellant. Hence, the conviction recorded by the learned

Addl. Sessions Judge, Satara for the offence punishable under Section 498A

of the Indian Penal Code deserves to be maintained. The sentence awarded

for the offence punishable under Section 498A of IPC is one year. The

accused-appellant was in custody from 19.2.1993 to 13.4.1993. After

recording of conviction, he was in custody from 20.11.1996 to 22,12,1996.

Hence, he has undergone the substantive sentence of two months and 25

days i.e. about 3 months and therefore, this Court is of the opinion that he

deserves to be sentenced for the period already undergone. The sentence

of fine for the offence punishable under Section 498A of the Indian Penal

Code needs to be maintained.

     Mhi                                    11       Appeal-733-1996.sxw

                                                ORDER




                                                                                 
          (i)     Appeal is partly allowed.




                                                         
          (ii)    The conviction of the appellant for the offence punishable under

Section 306 of the Indian Penal Code recorded by Additional Sessions

Judge, Satara, vide Judgment and Order dated 28.11.1996 is hereby

quashed and set aside.

(iii) The conviction of the appellant for offence punishable under Section

498A of the Indian Penal Code is maintained. Sentence of fine is also

maintained.

(iv) It appears from the record that appellant has undergone substantive

sentence of two months and 25 days approximately. Appellant is sentenced

to the period already undergone.

(v) Amount of fine for the offence punishable under Section 306 of the

Indian Penal Code be refunded.

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