Dinesh S/O Premlal Gautam vs The State Of ...
2017 Latest Caselaw 5316 Bom

                                                   1                                      jg.apeal.151.02.odt


                 THE HIGH COURT OF JUDICATURE AT BOMBAY
                        : NAGPUR BENCH : NAGPUR.

                           CRIMINAL APPEAL NO. 151 OF 2002

Dinesh s/o Premlal Gautam, 
aged about 34 years, resident 
of Maneri, Police Station, 
Bahela, District : Balaghat, 
M.P. [Accused]                                                                                   ... Appellant

           -  VERSUS  -

The State of Maharashtra,
through Police Station Officer, 
Police Station, Dawaniwada, 
District : Gondia.                                                                           ... Respondent
-------------------------------------------------------------------------------------------------
Shri Amol Mardikar, Advocate for the appellant 
Shri A. M. Joshi, A.P.P. for the State/respondent
-----------------------------------------------------------------------------------------------------------------------

                                                                CORAM :  M. G. GIRATKAR, J.

Date of reserving judgment : 14/07/2017.

Date of pronouncing judgment : 01/08/2017.

Judgment

Present appeal is against the judgment of 1st Adhoc

Additional Sessions Judge, Gondia dated 13-3-2002 by which appellant/

accused is convicted for the offence punishable under Section 304-B of

the Indian Penal Code and sentenced to suffer rigorous imprisonment

for seven years.

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2. The case of the prosecution against the appellant in short is

as under :

(i) Marriage of deceased Premlata was solemnized with

appellant/ accused on 19-6-1997. The appellant was demanding

dowry. After the marriage, deceased told her father that accused was

demanding sofa set, cupboard etc. therefore, her father purchased sofa

set etc. and paid Rs. 16,000/- to his daughter. When her father went to

see deceased, she told her father that accused demanded Rs. 40,000/- to

purchase motorcycle. Deceased delivered female child. In the rainy

season, father of accused asked him to pay Rs. 6,000/- for the purpose

of service of the accused. Before Diwali, accused informed father of

deceased that Premlata was serious, therefore, her father went to the

house of accused. He saw Premlata in good condition. Accused was

saying that he do not want to reside with deceased as she was abusing

to him and used to dance. On the next day, he brought deceased to his

house. In the night of incident, deceased committed suicide by jumping

in the well. Her father Vishwanath lodged report in the Police Station.

But in the report, he did not suspect anybody.

(ii) During the investigation, statements were recorded.

Offence punishable under Section 304-B of the Indian Penal Code came

3 jg.apeal.151.02.odt

to be registered. P.W. 1 Veena/sister-in-law of deceased produced one

chit and letter. Those were seized by the police. After complete

investigation, Investigating Officer filed the charge-sheet before the

Court.

(iii) Charge was framed by Adhoc Assistant Sessions Judge,

Gondia at Exhibit 10 for the offence punishable under Section 304-B of

the Indian Penal Code. Prosecution has examined in all total seven

witnesses. Statement of accused was recorded. Accused denied

material incriminating evidence against him and stated in his statement

that deceased Premlata went to her matrimonial home along with her

father as she was not keeping well. She was treated at Balaghat by Dr.

Harinkhede. He did not cause any cruelty for commission of suicide by

Premlata. She might have committed suicide under the state of

schizophrenia. After hearing the prosecution and defence, learned trial

Court convicted the accused for the offence punishable under Section

304-B of the Indian Penal Code and sentenced to suffer rigorous

imprisonment for 7 years.

3. Learned counsel Shri Mardikar has pointed out me material

evidence supporting the defence. Learned counsel Shri Mardikar has

submitted that deceased was under the treatment of Dr. Harinkhede.

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She was brought by her father P.W. 5 to his house because of her illness.

She was also getting medical treatment of Dr. Bahekar at Gondia.

Learned counsel has pointed out evidence of witnesses and submitted

that there are material omissions and contradictions. Investigating

Officer not examined by the trial Court, therefore, accused could not

prove omissions and contradictions and therefore, prejudice is caused

to the appellant/accused.

4. Learned counsel Shri Mardikar has submitted that Police

Inspector Shri Sapkal who investigated the crime was a material

witness. As per the report, complainant not suspected anybody for the

cause of death of his daughter. Therefore, it was for the prosecution to

show as to how the offence came to be registered.

5. Learned counsel Shri Mardikar submitted that chit and

letter proved by P.W. 7 (Handwriting Expert) Shri Ranjangaonkar do

not show any ill-treatment by the appellant. Prosecution has failed to

prove the guilt of the accused. Learned counsel has submitted that

suicide due to cruelty/demand of dowry should be soon before her

death. In support of his submission, Shri Mardikar, learned counsel

pointed out decision in the case of M. Srinivasulu Vs. State of A. P.

reported in (2007) 12 SCC 443.

5 jg.apeal.151.02.odt

6. Learned Additional Public Prosecutor Shri Joshi has

submitted that Dr. Bahekar not examined by the accused. Therefore,

accused failed to prove that deceased was mentally ill. Learned

Additional Public Prosecutor has submitted that evidence of P.W. 1 to

P.W. 5 show that accused was demanding dowry and due to his ill

treatment deceased committed suicide. Learned trial Court rightly

convicted the appellant, hence appeal is liable to be dismissed. Learned

Additional Public Prosecutor pointed out judgment in the case of

Amrutlal Liladharbhai Kotak and ors. Vs. State of Gujarat reported

in 2015(4) SCC 452.

7. Report was lodged by father of deceased. It is at Exhibit

29. As per the contents of report, deceased was married with appellant

before 3 years of the incident. His son-in-law is a teacher at Balaghat.

Deceased begotten a female child aged about 1½ years. Before 15 days,

his son-in-law named Dinesh Gautam (appellant) informed on

telephone that Premlata was not feeling well, therefore, he along with

his daughter-in-law Veena (P.W. 1) went to meet deceased.

Complainant and P.W. 1 stayed in the house of accused in the night.

Accused told them that Premlata was not well and so they shall take her

along with them to their village. Therefore, on the next day, her father

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and sister-in-law brought deceased Premlata to their village. That time,

she was taking medicine. His son-in-law Dinesh had come to village 8

days back and went back on the same day. In the night of 21-12-1999,

they were sleeping. In the morning of 22-12-1999, daughter of

Premlata was crying. Deceased was not found. They searched deceased

but not found. Umesh Turkar dropped the hook in the well situated at

the backside of his house and told that girl had fallen in the well. His

daughter Premlata died by drowning in the water in well. He do not

suspect anybody for death.

8. From perusal of the report, P.W. 5 Vishwanath, father of

deceased there is no any allegations about demand of dowry or ill-

treatment by the appellant. Therefore, it was necessary for the

prosecution to examine the Investigating Officer. PSI Sapkal

investigated the crime but he is not examined by the prosecution.

Therefore, material prejudice is caused to the accused/appellant.

9. In respect of evidence, P.W. 1 Veena has stated in her

evidence that after the marriage, accused demanded sofa set etc. and

her father-in-law paid Rs. 18,000/- to the accused. Accused was

demanding Rs. 40,000/- to purchase motorcycle. But her evidence is

not reliable because of her admission in the cross-examination. She

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has admitted in her cross-examination that accused never talk with her

about demand of cash amount. She did not know whether accused

demanded anything at the time of settlement of marriage. She has

stated that 15 days before she along with her father-in-law went to the

house of appellant, deceased was not well, therefore, they brought to

their house at Hudkyatola.

10. P. W. 1 has further stated that 8 days before the incident,

accused informed on phone that he was unable to do household work

and also go to school, therefore, requested them to send deceased but

deceased not returned to the appellant. In the cross-examination,

material omission is brought on record that she has stated to police in

her statement that accused did not take deceased for about one month

after the marriage because he was demanding cash amount. She has

admitted that this fact has not stated in her statement and for the first

time she stated before the Court. She has admitted that deceased was

getting medical treatment of Dr. Bahekar at Gondia. She has further

admitted that they brought deceased to Hudkyatola on 1 st December,

since then, she was in matrimonial home. She has stated that in the

night of incident, deceased committed suicide by jumping in the well.

In the morning they searched her but not found. She produced one

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letter and one chit before the police written by the deceased. Material

omission about the cruelty and demand of dowry is brought in cross-

examination.

11. P.W. 2 has stated about telephonic message given by the

accused/appellant. In his cross-examination, he has stated that he did

not know from which place Veena brought letter, that time, Veena

brought only single letter and police seized it. Veena told him that it

was a letter written by Guddi/deceased. Guddi never told him about

her grievance. Accused never demanded cash and motorcycle in his

presence.

12. P.W. 2 is grandfather of deceased. Therefore, it was natural

for him to know about the demand of money and cruelty by accused.

He has specifically stated that accused never demanded cash amount

and motorcycle in his presence.

13. P.W. 3 has stated in his evidence that he conducted post

mortem. As per his opinion, cause of death was asphyxia due to

drowning. Accordingly, he issued post mortem report, Exhibit 21.

P.W. 4 is the panch witness. He has proved spot panchanama and

inquest panchanama, Exhibit 23 and Exhibit 24.

9 jg.apeal.151.02.odt

14. P. W. 5 is father of deceased. He has stated that accused

demanded cupboard, sofa set etc. and he has given Rs. 16,000/- to

his daughter. His daughter told him that accused demanded

Rs. 40,000/- to purchase motorcycle. He has stated in his evidence

that deceased was getting medical treatment of Dr. Bahekar. Fifteen

days before the incident, he along with his daughter-in-law went to the

house of the accused. That time, accused told him that deceased was

not behaving properly. She was abusing and used to dance. Therefore,

P.W. 5 brought deceased to his house. Material omissions are brought

on record in his cross-examination.

15. P.W. 6 proved seizure panchanama, letters. P.W. 7

Shri Vishwas Ranjangaonkar proved the letters written by deceased.

Those are at Exhibit 13 and 15.

16. Accused examined Dr. Harinkhede at Exhibit 42. He has

stated in his evidence that accused brought deceased to his private

hospital. She was suffering from schizophrenia. She came to his

hospital for treatment on 4-3-1999, 4-9-1999, 20-9-1999, 29-11-1999

and lastly, on 1-12-1999. As per his evidence, patient of schizophrenia

used to loss mind control and it results in abnormal behaviour, so also,

there is possibility of irrelevant talk. On 29-11-1999, deceased came to

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his hospital for medical treatment. That time, he observed that

deceased Premlata was behaving abnormally and talkative. He

prescribed medicine to her. He has stated that there is tendency

of suicide in case of patient of schizophrenia. In the cross-examination

it is brought on record that he is qualified as M.D. (Medicine).

17. Evidence on record clearly show that deceased was

mentally ill. She was getting medical treatment of Dr. Harinkhede

(D.W. 1). As per his evidence, deceased was behaving abnormally.

There was tendency of committing suicide. As per his evidence, it is

clear that he gave long treatment. The prescriptions issued by

Dr. Harinkhede are proved on record, those are at Exhibit Nos. 50 to 53.

18. As per evidence of witnesses P.W. 1 and P.W. 5, it is clear

that deceased was also getting medical treatment of Dr. Bahekar at

Gondia. Therefore, it is clear that whenever she was residing with the

accused, she was getting medical treatment of Dr. Harinkhede at

Balaghat. Whenever she used to reside with parents at Hudkyatola, she

was getting medical treatment of Dr. Bahekar at Gondia.

19. Cross-examination of P.W. 1 clearly shows that accused

never demanded any articles or money in her her presence. P.W. 2 is

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grandfather of deceased. He has specifically stated in his cross-

examination that deceased never made any grievance to him. He has

further stated that accused never demanded cash amount and

motorcycle in his presence. It is natural for him to know about the

demand of husband of his granddaughter. But he has not stated

anything against the accused.

20. Only evidence of P.W. 5 which shows that there was some

demand of household articles, motorcycle etc. But his cross-

examination shows that he had given Rs. 16,000/- to his daughter to

purchase sofa set etc. He has stated in his evidence that his daughter

told him that accused demanded Rs. 40,000/- to purchase motorcycle.

His evidence is not reliable because at the first instance, he could have

made allegations against the accused. The report, Exhibit 29 was

lodged by this witness in the Police Station in which he has specifically

stated that "before 15 days, he brought deceased to his house.

Deceased was not feeling well, therefore, he brought her to his house.

That time, she was taking medicine. Thereafter son-in-law/ appellant

came to his house and returned back on the same date. In the night of

incident, she jumped in the well. In the morning, they searched her but

not found. He has stated in his report that his daughter Premlata died

12 jg.apeal.151.02.odt

by drowning in the water of well. He do not suspect anybody for her

death."

21. It is pertinent to note that how the incident of demand of

dowry, cruelty etc. stated by P.W. 5 related to the incident of death

by drowning. Therefore, it was natural for P.W. 5 to state everything in

his report but he has not made any allegation against the appellant/

accused stating that accused was demanding Rs. 40,000/- to purchase

motorcycle etc. It is pertinent to note that not a single witness has

stated before the Court that there was any kind of ill-treatment such as

beating etc.

22. Learned trial Court has wrongly relied on the letters proved

by P.W. 7. Both the letters, if read as it is, then it is clear that both

letters do not show any kind of ill-treatment or demand of dowry by the

accused/appellant. As per the contention of P.W. 1, she found letter in

the bag after the incident and she handed over the same to the police.

Letter of so called suicide note shows that letter Exhibit 13 written as

under :

"I want to die at my own will. My (daughter) Shruti only will suffer

very much due to my death. What complaint a lady (like me) can make,

who is deserted by her own husband. I can neither tolerate tears of

13 jg.apeal.151.02.odt

everybody nor can I carry it along, therefore, I am taking this step."

Letter, Exhibit 13 does not show that there was any ill-treatment or

demand of dowry by her husband. Another letter, Exhibit 14 shows that

she was happy with her husband. There is nothing in the letter, Exhibit

14 to show there was any ill-treatment or demand of dowry by her

husband.

23. Letter, Exhibit 13 was written by her before committing

suicide. This letter, Exhibit 13 does not show any ill-treatment or

demand of dowry by her husband. Therefore, there is material

substance in the defence of the appellant that she was mentally ill. She

was suffering from schizophrenia as per the evidence of Dr. Harinkhede.

Therefore, she might have committed suicide. Defence appears to be

probable. The burden of proof on defence is not so heavy as like

prosecution. Accused has to prove his defence by preponderance of

probability. It is clear that accused/appellant has proved his defence by

examining Dr. Harinkhede.

24. As per the evidence of Dr. Harinkhede, for the first time on

4-3-1999, she was brought by appellant to his private hospital at

Balaghat for medical examination and treatment. She was suffering

14 jg.apeal.151.02.odt

from schizophrenia. In case of schizophrenia patients, they lost mind

control and it results in abnormal behaviour. There was possibility of

committing suicide. He gave treatment from 4-3-1999 up to 1-12-1999.

He observed that deceased Premlata was abnormal and talkative.

25. Learned Additional Public Prosecutor Shri Joshi has

submitted that Dr. Bahekar has not examined by the accused.

Dr. Harinkhede is not a Psychiatrist and, therefore, his evidence is not

reliable. It is pertinent to note that Dr. Harinkhede is qualified as

M.D. (Medicine), therefore, he is having sufficient knowledge to give

treatment to the patients of schizophrenia. Moreover, it is clear from

the evidence of prosecution witnesses that whenever she used to come

to matrimonial home, she was given treatment of Dr. Bahekar. Before

the incident also, she was residing with her parents and getting

treatment of Dr. Bahekar. Therefore, it was for the prosecution to

examine Dr. Bahekar, but prosecution has not examined Dr. Bahekar.

26. Evidence on record clearly show that deceased was

suffering from schizophrenia. There is nothing in the evidence of any of

the witness that there was any physical or mental cruelty to the

deceased. On the other hand her grandfather has stated in his evidence

that deceased never made any complaint about her husband. Accused/

15 jg.apeal.151.02.odt

her husband never demanded cash amount and motorcycle in his

presence. P.W. 1 also stated in her cross-examination that appellant

never demanded any amount in her presence.

27. The only evidence of P.W. 5 is not sufficient. There is

material omissions in his evidence. Moreover, P.W. 5 not stated

anything in his report about demand of dowry to purchase sofa set and

motorcycle. If it was a fact, then it was natural for him to write

everything in his report, Exhibit 29. But report, Exhibit 29 clearly show

that "his daughter fallen in the well and died by drowning in the water

of well. He do not suspect anybody for death of his daughter."

28. Learned Additional Public Prosecutor Shri Joshi pointed out

decision in the case of Amrutlal Liladharbhai Kotak and ors. Vs.

State of Gujarat reported in 2015(4) SCC 452. In the cited decision,

deceased was residing with her husband, father-in-law and mother-in-

law. P.W. 1, P.W. 8 and P.W. 9 stated that deceased used to complain

about the mental torture and harassment meted out to her by the

accused due to insufficient dowry provided during the marriage. This

evidence was supported by P.W. 7 who was friend of deceased who

stated that deceased informed her that she was subjected to frequent

mental torture and harassment by the accused for bringing less dowry.

16 jg.apeal.151.02.odt

In the cited decision, prosecution has proved demand of dowry and

cruelty by her husband and in-laws. She was residing with her husband

and in-laws at the time of incident. Due to cruelty, she hanged herself.

Since then, her husband and in-laws were absconding for a period of 36

days and ultimately, they surrendered at Morbi City Police Station.

29. Facts in the cited decision is very much different. She was

in the custody of husband and in-laws. Demand of dowry and cruelty

by her husband and in-laws are proved, therefore, they were convicted

and conviction was upheld by the Hon'ble Supreme Court. Facts in the

cited decision are very much different and thus, not applicable to the

case in hand.

30. Learned counsel Shri Mardikar placed reliance on the

judgment of the Supreme Court in the case of M. Srinivasulu Vs. State

of A. P. reported in (2007) 12 SCC 443. Hon'ble Apex Court has

observed as under :

Section 304-B of IPC

"The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential

17 jg.apeal.151.02.odt

ingredients are as follows :

(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.

(ii) Such a death should have occurred within seven years of her marriage.

(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

(iv) Such cruelty or harassment should be for or in connection with demand of dowry.

(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths."

Further it is observed by the Hon'ble Apex Court that :

"As per the definition of 'dowry death' in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been 'soon before her death' subjected to cruelty or harassment 'for or in connection with the demand for dowry'. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials :

"(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.

18 jg.apeal.151.02.odt

(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death."

31. In the present case, deceased not stated in her letter,

Exhibit 13 or Exhibit 14 about the ill-treatment or demand of dowry by

her husband/appellant. P.W. 1 and P. W. 2 have not stated anything

about ill-treatment or demand of dowry by the appellant in their

presence. P.W. 2 has specifically stated that deceased never stated

anything to him about the grievance of her husband. He has specifically

stated that accused never demanded any amount to purchase

motorcycle etc.

32. P.W. 5, father of deceased has stated in his examination-in-

chief in respect of demand of dowry but he has not stated a single

instance of any cruelty by accused. P.W. 5 not stated anything about

demand of dowry or cruelty in his report, Exhibit 29. He has made

much more improvement in his evidence before the Court. Deceased

was not residing with her husband/ appellant at the time of incident.

Prosecution has miserably failed to prove that soon before her death,

there was demand of dowry by the appellant/accused. Hon'ble Apex

Court in the case of M. Srinivasulu Vs. State of A. P. (cited supra) has

19 jg.apeal.151.02.odt

observed that :

"suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."

33. In the present case, at the time of incident deceased

was residing with her parents. She was getting medical treatment of

Dr. Bahekar. It is specifically stated in the report, Exhibit 29 that

nobody was responsible for her death. Not a single allegation in respect

of demand of dowry or cruelty by the husband of deceased are made

in the report. P.W. 1, P.W. 2 and P.W. 5 not stated any instance of any

physical or mental cruelty by the appellant in their presence. Deceased

herself could have written about the physical or mental cruelty or

demand of dowry by her husband in the letter, Exhibit 13 or Exhibit 14.

She has simply stated in the letter/chit, Exhibit 13 that "she was

deserted by her husband and, therefore, she did not want to live."

34. It is pertinent to note that she was brought by her father

and sister-in-law (P.W. 5 and P.W. 1) to their house. As per their

20 jg.apeal.151.02.odt

versions and report, she was getting medical treatment of Dr. Bahekar.

It is pertinent to note that 8 days before the incident, appellant visited

her. If there was really any cruelty to her, then she would have

disclosed to her grandfather or sister-in-law. Therefore, it is clear that

she was suffering from schizophrenia. In the attack of schizophrenia,

she might have committed suicide.

35. Defence is proved by the appellant/accused by the evidence

of Dr. Harinkhede. Prosecution has not proved the guilt of accused

beyond reasonable doubt. On the other hand accused/appellant has

proved that deceased was suffering from schizophrenia and under the

attack of mental illness, she has committed suicide. All these material

evidence are not considered by the trial Court and wrongly convicted

the appellant. Hence, impugned judgment is liable to be quashed and

set aside. Hence, the following order.

(i) Appeal is allowed.

(ii) Impugned judgment of conviction of appellant is hereby

quashed and set aside.

(iii) Accused/appellant is hereby acquitted of the offence

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

21 jg.apeal.151.02.odt

(iv) Bail bond of accused/appellant stands cancelled.

         (v)     R & P be sent back to the trial Court. 



                                                                        JUDGE

wasnik