Bombay High Court
Manik Shriram Bondare & Ors vs State Of Maha on 24 July, 2017
Bench: A. M. Dhavale
1 APEAL200.2003
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 200 OF 2003
1. Manik S/o Shriram Bondare,
Age : 25 years, Occu. Agriculture,
R/o. Omarga Yelladevi, Tq. Ahmedpur.
2. Gajrabai W/o Shriram Bondare (Died)
Age : 68 years, Occu. House-hold,
R/o. As above. ... Appellants
VERSUS
The State of Maharashtra ... Respondent
..........
Mr J. R. Patil, Advocate for the appellants
Mr M. B. Bharaswadkar, APP for respondent/State
.............
CORAM : A. M. DHAVALE, J.
DATE : 24TH JULY, 2017.
ORAL JUDGMENT:
1. This is an appeal by the accused from Sessions Case No.142
of 2001, before the Additional Sessions Judge, Udgir/Ahmedpur,
who were convicted for offences and sentenced as follows:
Sr. Offence Substantive Fine In default
No.
1 304B IPC RI 7 years
2 498A IPC - - -
3 306 IPC RI 7 years Rs. 500/- SI for three
months.
2 APEAL200.2003
2. The appellant's mother, who was accused No. 2, was also
convicted but she has expired during the pendency of the appeal.
Hence, the appeal stands abated as against appellant No.2 - Gajrabai.
3. Deceased Bhagyashri, who was sister of PW1-Hansraj and
daughter of PW2 - Mangalabai, was residing with them at
Babhalgaon, Tq. Ambajogai, Dist. Beed. On 15.05.2000, Bhagyashri
married to appellant No.1 - Manik, who was resident of Omerga
Yelladevi, Tq. Chakur, Dist. Latur. Both were belonging to farmer
families. Bhagyashri thereafter started cohabiting with appellant
No.1 - Manik. Appellant No. 2 - Mangalabai was also residing with
them. As per admitted facts, on 01.09.2000 at about 10:00 a.m.,
dead body of Bhagyashri was found in a public well at Omerga
Yelladevi. The post-mortem notes disclose that Bhagyashri died of
drowning.
4. According to the prosecution case, at the time of marriage,
there was agreement between the families of the appellant &
deceased-Bhagyashri to pay dowry of Rs. 75,000/- along with other
domestic articles. Out of agreed sum of Rs. 75,000/-, Rs. 65,000/-
was paid and balance amount of Rs. 10,000/- was agreed to be paid
within six months of marriage. The married life of Bhagyashri lasted
3 APEAL200.2003
hardly for three and half months. During the said period, she visited
maternal house twice. About 15 days after the marriage, when
Bhagyashri visited her maternal house, she told her parents and
maternal relatives that her husband and in-laws were abusing her for
non-payment of remaining amount of Rs. 10,000/- and there was
also additional demand of Rs. 1.00 Lakh for purchasing a Tractor.
She used to weep while narrating the story to her maternal relatives.
Her maternal relatives assured her to make some provision within 2-3
moths and persuaded her to resume cohabitation. Thereafter, PW-1
Hansraj had been to her house 15 days before Nagpanchami festival
to fetch her to her maternal house. That time, she wept before him
and reported that there were demands of balance dowry of
Rs.10,000/- and Rs. 1.00 Lakh for purchasing a tractor. Her husband
used to consume liquor and harass her. He requested Bhagyashri's
in-laws to send her with him for Nagpanchami festival but they
refused. Again 2-3 days before Nagpanchami he went to bring
Bhagyashri and she again told him about the dowry demand and
harassment meted out to her. Her in-laws unwillingly sent Bhagyashri
along with him but told her that while returning, she should bring
Rs.10,000/- of balance dowry and Rs.1.00 Lakh for purchasing a
tractor, otherwise she should not come. Then, after coming to her
maternal house, she narrated the incident of dowry demand and
4 APEAL200.2003
harassment to her maternal relatives. After Nagpanchami festival, she
was taken by her grand-father to her matrimonial house and he
requested her husband and in-laws not to ill-treat Bhagyashri. On
01.09.2000, maternal relatives of Bhagyashri received news that
Bhagyashri died of drowning in a well. According to them, she
committed suicide due to dowry demands and ill-treatment. After
post-mortem and funeral, on the same day PW1-Hansraj lodged FIR
(Exh. 20). On the basis of the information, crime was registered at
23:05 hrs as C.R. No. 120/2000 with Police Station Chakur and same
was investigated into by API-Chate (PW6). Before the investigation,
during inquiry of Accident Death Case No. 29/2000, inquest
panchanama & spot panchanama were drawn and the dead body of
deceased-Bhagyashri was sent for post-mortem. During the
investigation, statements of relatives of Bhagyashri were recorded.
Both the accused were arrested and after completing the
investigation, charge-sheet was submitted in the Court. In due
course, the case was committed to the court of Sessions.
5. Learned Additional Sessions Judge, Ahmedpur framed
charge against the appellant and his mother u/s 498A r/w 34, 304B
r/w 34 & 306 r/w 34 of IPC at Exh. 4. Both the accused pleaded not
guilty. The prosecution examined six witnesses. The defence has
5 APEAL200.2003
examined one witness. After considering the evidence on record, the
trial Judge held both the accused guilty for all the offences charged
and convicted them as referred above. Hence, this appeal.
6. Heard Shri. J. R. Patil, learned counsel for the appellants
and Shri. M. B. Bharaswadkar, learned APP for respondent/State.
7. Shri. Patil submitted that the allegations regarding ill-
treatment and abusing are vague. There are no independent
witnesses. PW1 to PW5 are relatives of Bhagyashri and are interested
witnesses. The appellant is having 10-12 acres agricultural land and,
therefore, it is not probable that he would demand Rs. 10,000/- or
Rs. 1.00 Lakh. The evidence on record shows that, there was petty
quarrel between accused No. 2 and Bhagyashri as Bhagyashri was
called in the field for agricultural operation of plucking legume of
mung. He argued that the water from the said well was being used
for drinking and the probability of death by accident has not been
ruled out. He relied on the evidence of defence witness. He
submitted that, there are discrepancies in the evidence of PW1 to
PW5 and their evidence is not credible and trustworthy. Hence, the
appeal should be allowed and the appellant be acquitted.
6 APEAL200.2003
8. Per contra, learned APP argued that there is consistent
evidence of dowry demand by the appellant and his relatives. There
is circumstantial evidence to show that there was no possibility of
death by accident. There is no reason to disbelieve PW1 to PW5. The
learned trial Judge has rightly appreciated the evidence and therefore
the conviction & sentence do not need any interference.
9. The points for my consideration with my findings thereon
are as follows:
Points Findings
1 Whether deceased - Bhagyashri
committed suicide? ..Proved.
2 Whether appellant/accused No. 1 and
his mother in furtherance of their
common intention abetted commission
of suicide by deceased-Bhagyashri?
..Proved.
3 In the alternative, the appellant and his
mother soon before death of Bhagyashri
subjected her to ill-treatment and dowry
demands and thereby caused her
unnatural death within 7 years from the
date of marriage and committed offence
u/s 304B r/w 34 of IPC? ..Does not survive.
4 What order? The appeal is partly
allowed. Conviction u/s
306 of IPC is upheld and
conviction u/s 304B of
IPC is set aside.
7 APEAL200.2003
-: R E A S O N S :-
10. The prosecution has examined following witnesses:
PW1- Hansraj, brother of Bhagyashri and informant (Exh.20)
PW2- Mangalabai, mother of deceased-Bhagyashri.
Govind, Grampanchayat employee from Omerga, who first
PW3-
saw the dead body of Bhagyashri in the well.
PW4- Siddharam - Bhagyashri's uncle (cousin of her father).
Rasikalabai - Bhagyashri's paternal aunt (i.e. her father's
PW5-
cousin's wife).
PW6- API Chate.
11. The defence has examined DW1-Babru Somwanshi, who is
neighbour of accused No. 1.
12. As per admitted facts, Bhagyashri married to appellant on
15.05.2000 and thereafter she started cohabiting with him at Omerga
Yelladevi, Tq. Chakur, Dist. Latur. That time, mother of the appellant
No. 1 was also residing with them. Appellant was having 10-12 acres
of agricultural land. Bhagyashri has died of drowning on 01.09.2000
i.e. just three and half months after the marriage.
13. The post-mortem notes (Exh. 18) has been admitted by the
defence. It shows no post ante-mortem injuries. There are injuries
due to biting by water-born animals. The probable cause of death
recorded by Doctor is "Asphyxia due to Drowning". Consistent with
this opinion, other symptoms like swollen, edematous & congested
8 APEAL200.2003
lungs, liver, spleen & kidney were also found. The death of deceased
by drowning is not in dispute. Since there is no direct evidence, the
possibility of accidental death has to be ruled out. It was argued that,
the water of the said well was being used for drinking, however, spot
panchanama (Exh. 15) has been admitted by the defence. It shows
that the well was having a parapet wall of 4.00 ft. height and 2.5 ft.
width from all the sides. Besides, there was iron ladder for entering
into the well and there was also a pump house for fetching water. A
pair of slipper chappal was found near the well. The existence of
parapet wall around the well rules out accidental death of fall in the
well. The evidence shows that, deceased Bhagyashri left her house in
broad day light. The defence witness has also suggested that
deceased Baghyashri left the house in the morning. Since there was a
pump house and ladder, I find that there was hardly any possibility of
accidental drowning. The existence of pair of slipper chappal near
the well also indicates that it is a case of suicide and not a case of
accidental death.
14. Thus, it is certainly a case of unnatural death occurred
within three and half months after the marriage. Therefore, it is
necessary to consider whether she was subjected to ill-treatment soon
before her death.
9 APEAL200.2003
15. PW1 to PW5 are maternal relatives of deceased-Bhagyashri.
Their evidence shows that during the period of three and half months
of cohabitation, Bhagyashri visited her house twice, once about 15
days after the marriage and thereafter at the time of Nagpanchami.
Besides, her brother Hansraj-PW1 had been to her house twice and
on each occasion, Bhagyashri disclosed Hansraj and her maternal
relatives that there was demand of balance dowry of Rs. 10,000/-.
Their evidence shows that, there was agreement to pay Rs. 75,000/-
at the time of marriage but dowry of Rs. 65,000/- was paid and it
was also agreed that the balance amount would be paid within six
months of the marriage. Bhagyashri also used to tell them about
additional demand of Rs. 1.00 Lakh made for purchasing a tractor.
Bhagyashri used to weep before them. The evidence of PW1 to PW5
on this point is consistent. The FIR was lodged on the very day of
death of Bhagyashri immediately after the funeral was over.
Therefore, these allegations cannot be said to be concocted.
16. The evidence of these witnesses is not shaken in the cross-
examination. In cross, it was tried to be suggested that Bhagyashri
was interested in marrying to a person employed somewhere
whereas; the appellant No. 1 - Manik was doing agricultural work
10 APEAL200.2003
and therefore she was not happy. This cannot be a ground for
commission of suicide. Bhagyashri would have left his house and
resided at her maternal house. It is pertinent to note that Bhagyashri
was cohabiting with appellant No. 1 and was residing along with her
mother-in-law but both of them have given no explanation
whatsoever in their statements recorded u/s 313 of Cr.P.C. Their
defence is of simple denial of everything.
17. It was suggested to PW1 to PW5 and evidence was led
through defence witness that Bhagyashri was hardly having any
cohabitation with her husband. After the marriage, she went along
with her husband for taking darshan of their family gods. Thereafter,
she went to maternal house and stayed there for 14 days. When she
returned to her matrimonial house, she stayed there for one day and
again went to maternal house. It was suggested that she stayed at
her maternal house for 14 days and again she had gone to her
maternal house for traditional stay of bride in the month of Ashadh.
That time, she stayed there for 1 month and 21 days and she had
returned to her matrimonial house 4-5 days before the incident.
DW1 has led evidence to that effect, however, PW1 to PW5
categorically denied this fact and both the appellants have not stated
anything like that in their statement recorded u/s 313 of Cr.P.C.
11 APEAL200.2003
18. DW1 has stated that his house was abutting to the house of
the appellant with a common wall in between. Bhagyashri used to
visit his house and used to tell his wife that she wanted her husband
serving in a company but her husband was doing work in the field
and she was married to Manik against her will. He also stated that,
his mother told him that on one day before discovery of dead body of
Bhagyashri she had seen Bhagyashri wearing a new saree and all
ornaments, while leaving her house. Evidence of DW1 as to what his
wife & mother stated is hearsay. He was expected to be working in
fields during the day time. Therefore, his evidence is not trustworthy.
19. The evidence on record shows that the appellant Manik
was having eight elder sisters. Daughter of one of the sisters by name
Baby was residing with him. He was very well known to the family
of parents of Bhagyashri before marriage. PW1 to PW5 had no reason
to falsely implicate both the appellants. The suggestions made by
defence and the evidence led by DW1 that Bhagyashri committed
suicide on account of marriage with appellant, who was not as per
her liking, is not acceptable. It is not probable that she would have
committed suicide on this ground. Bhagyashri was residing in a small
village. Her father was also farmer and therefore there was no
reason for her to have disliking of farmer's family. There is consistent
evidence that, there were persistent demands of dowry by both the
12 APEAL200.2003
accused from Bhagyashri. She was threatened that she should not
resume cohabitation unless she brings the amount. She used to weep
whenever she was visiting her maternal house. The evidence on
record shows that the parents of Bhagyashri were not in a position to
meet the dowry demands, made by accused. Thus the appellants have
created a situation of extreme pressure where Bhagyashri was left
with no option but to commit suicide. In this regard, I rely on
Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) reported
in AIR 2010 SC 1446, wherein it is observed that "where the accused
had, by his acts or omission or by a continued course of conduct,
created such circumstances that the deceased was left with no other
option except to commit suicide, in which case, an 'instigation' may
have to be inferred". I also rely on the judgment of the Hon'ble
Supreme Court in the case of Ramesh Kumar v. State of
Chhattisgarh reported in AIR 2001 SC 3837, wherein it is held that,
"a reasonable certainty to incite the consequences must be capable of
being spelt out. More so, a continued course of conduct is to create
such circumstances that the deceased was left with no other option
but to commit suicide".
20. It must be, however, stated that the evidence regarding
harassment or ill-treatment is quite vague and cannot be believed but
13 APEAL200.2003
it is well settled as held in Arvind Kumar & Anr. v. State of M.P.
reported in AIR 2007 SC 2674 & M. Narayan v. State of Karnataka
reported in AIR 2015 SC (Supp) 2001, that persistent demand of
dowry amounts to ill-treatment and such persistent demands have
driven Bhagyashri to commit suicide. I, therefore, find that the
finding of learned trial Judge that Bhagyashri committed suicide and
the appellants had abetted the commission of suicide is proper and
needs no interference.
21. However, the learned trial Judge committed error in
convicting the appellant for both the offences u/s 304B r/w 34 as
well as 306 r/w 34 of IPC. The charge could have been u/s 304B of
IPC, or in alternative, u/s 306 of IPC and conviction for single act
could have been only for one offence. The conviction for two
offences was certainly not justified. As far as offence u/s 498A r/w 34
of IPC is concerned, it is already included in the charge u/s 306 r/w
34 of IPC. Therefore, the judgment of conviction will have to be
altered to that much extent. I therefore hold the appellant No. 1
guilty for offence u/s 306 r/w 34 of the IPC only.
22. The appellant has been convicted u/s 306 r/w 34 of IPC
and sentenced to suffer rigorous imprisonment for seven years and to
14 APEAL200.2003
pay fine of Rs. 500/-, in default to suffer simple imprisonment for
three months. In absence of specific evidence regarding ill-treatment
and harassment apart from the persistent dowry demand, this
punishment is disproportionately high and therefore it deserves to be
reduced.
23. Considering the facts & circumstances, I deem it
appropriate to reduce the sentence to rigorous imprisonment for
three years and to pay fine of Rs. 500/-, in default to suffer simple
imprisonment for three months. The points formulated are answered
accordingly. Hence, the following order.
ORDER
1. The appeal presented by appellant No. 1 - Manik S/o
Shriram Bondare is partly allowed.
2. The order of conviction u/s 304B r/w 34 of the IPC is set
aside and conviction u/s 306 r/w 34 of IPC recorded
against the appellant No. 1 in Sessions Case No. 142 of
2001 on 21.02.2003 is maintained, however, the sentence
is reduced to rigorous imprisonment for three years and to
pay fine of Rs. 500/-, in default, to suffer simple
15 APEAL200.2003
imprisonment for three months. The appeal of appellant
No. 2 is already abated.
3. The appellant No. 1 shall surrender before the learned trial
Court within four weeks from today.
[ A. M. DHAVALE ]
JUDGE
sgp
