Bombay High Court
The State Of Mah. Thr. Pso Amravati vs Shivkant Parmeshwardayal Pandey ... on 22 November, 2017
Bench: I.K. Jain
1 Apeal540-03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.540 of 2003
...
The State of Maharashtra through
the Police Station Officer,
Police Station Dharni, District Amravati... APPELLANT
.. Versus ..
1. Shivkant s/o Parmeshwardayal
Pandey, Aged about 30 years,
R.o Tembhli, P.S. Dharni,
District Amravati.
2. Parmeshwardayal s/o Ramphal
Pandey, Aged about 64 years,
R/o Tembhli, Tq. Dharni,
Distt. Amravati.
(Respondent No.2 is reported to be
dead. Appeal against him stands
abated vide order dt. 22.11.2017).. RESPONDENTS
Shri R.S. Nayak, APP for Appellant-State
Shri P.S. Gavai, Advocate h/f Shri R.L Khapre, Advocate for
Respondent.
....
CORAM : Kum. Indira Jain, J.
DATED : November 22, 2017.
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ORAL JUDGMENT
1. This appeal is directed against the judgment and
order of acquittal recorded vide judgment and order dated
23.05.2003 by the learned First Ad-hoc Additional Sessions
Judge, Achalpur, acquitting the respondents- accused Nos. 1
and 4 of the offences punishable under Sections 498-A, 306
read with 34 of the Indian Penal Code in Session Trial No.
104/2000.
2. Prosecution case which can be disclosed from the
charge-sheet and connecting papers thereto may be stated in
brief as under:-
(A) Respondent No.1 a resident of village Tembhli in
tahsil Achalpur, was married to Rajani daughter of Harihar
Rajapath Mishra, resident of Paratwada on 11.05.1999. After
marriage, she went to the house of Harihar Mishra at village
Tembhli. Respondent No.2-accused No.4 was the father of
respondent no.1 and father-in-law of Rajani. Prosecution was
launched in all against seven accused. Accused Nos. 2,3 and 7
are the sons, accused No.5 is wife and accused No.6 is
daughter of respondent No.2-accused No.4.
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(B) According to the prosecution, accused persons were
residing jointly. After marriage, accused used to insist Rajani
to bring money from her father. She was being ill-treated and
harassed to meet with the demand of money. During her visits
to her matrimonial house, Rajani disclosed about the
harassment on money to her.
(C) It is contended that respondent no.2 also visited
house of complainant Harihar Mishra and insisted to pay
Rs.50,000/- for purchasing a field in the name of his another
son. He was asking for Rs.40,000/- for securing a job for his
son. As complainant could not pay the amount, respondent
No.2 threatened him that he would see to get share of Rajani
from the property of complainant.
(D) On 06.05.2000, accused No.3 Chandrakant informed
complainant Harihar on phone that Rajani consumed poison
and died.
(E) On 07.05.2000 Dilip Patel , Sarpanch of village, was
informed by Chandrakant that condition of Rajani was serious.
He visited the house of accused and saw Rajani dead. Being
Sarpanch, he informed Police Station Dharni about the death.
On receiving information, initially accidental death was
registered. Mr. R.N. Ghule, Police Station Officer, went to the
spot and recorded spot panchanama. Articles like a can
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bearing Endosulfan word, a post card and a pen lying on the
spot were seized at the time of recording spot panchanama.
Inquest panchanama was prepared and dead body was sent for
post mortem to Rural Hospital Dharni. Medical Officers on duty
performed post mortem and opined probable cause of death
due to asyphyxia due to organochlorine poisoning.
(F) On receiving information, father of the deceased and
other family members rushed to the house of accused. Harihar
Mishra father of Rajani, suspected that she committed suicide
due to cruel treatment given to her by her husband and his
relatives. Therefore, he lodged report to the Police Station on
07.05.2000. Crime No. 0080 of 2000 came to be registered
against the accused for the offences punishable under Sections
498-A, 306 read with 34 of the Indian Penal Code.
(G) PW8 API Ghule took over investigation. He arrested
the accused and obtained their specimen signatures.
Complainant had produced some letters signed by Rajani to
him. Those letters were seized under a seizure panchanama.
The letters were sent to handwriting expert. Viscera was
preserved by Doctors at the time of post mortem. The same
was also sent to Chemical Analyser for analysis. During
investigation, statements of several witnesses came to be
recorded. On completing investigation, charge-sheet was
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submitted to the Court of Judicial Magistrate First Class, Dharni,
who in turn committed the case for trial to the Court of Session.
3. On committal, Sessions Court framed charge vide
Exh.16. Accused pleaded not guilty and claimed to be tried.
The factum of relationship inter se between the parties is not
disputed. Regarding occurrence of incident, defence of the
accused was of total denial and false implication.
4. Prosecution examined in all eight witnesses to
substantiate the guilt of accused. Considering the evidence of
parents and Sarpanch and also relying upon the letters written
by Rajani to her father, trial Court came to the conclusion that
cruelty under Section 498-A of the Indian Penal Code is not
proved and the prosecution could not establish that accused
abetted commission of suicide by Rajani. In consequence
thereof, accused came to be acquitted as stated hereinabove
in paragraph 1.
5. The State of Maharashtra being aggrieved by the
order of acquittal has preferred this appeal against accused
No.1 and accused No.4 husband and father-in-law of Rajani.
During pendency of appeal, respondent No.2- accused No.4
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died and vide order dated 22.11.2017, appeal has been abated
against respondent No.2. The entire controversy is now
narrowed down and restricted to respondent No.1-accused
No.1.
6. Heard Shri R.S. Nayak, learned Additional Public
Prosecutor for the appellant and Shri P.S. Gavai, learned
counsel for respondent No.1.
7. Sofar as factum of death is concerned, it is not in
serious dispute that Rajani committed suicide and the death in
question is a suicidal death. Accused have denied that they
are responsible for the suicide committed by Rajani.
8. Needless to state that cruelty as contemplated under
Section 498-A of the Indian Penal Code is willful conduct and
harassment by husband and his relatives to a woman with a
view to coerce her to meet with their unlawful demand. In the
case on hand, PW1 Harihar, PW2 Vimbla, PW4 Ramesh, PW5
Sugrabi and PW6 Vijay Kumar Dube are the witnesses
examined on the alleged harassment and cruelty on demand
of money to Rajani.
7 Apeal540-03.odt
9. It can be seen from the evidence of parents and
particularly PW1 Harihar that after marriage Rajani visited his
house thrice. He stated that Rajani used to tell them that
accused were insisting her to bring money. She was tortured
on the ground that less dowry was given at the time of
marriage. She also disclosed that accused were beating her.
According to Harihar, father-in-law of Rajani used to visit his
house and once he demanded Rs.50,000/- to purchase his
uncle's field and for his son Chandrakant once he demanded
money. When he expressed his inability to pay money,
Parmeshwar and his family members got annoyed and
threatened Harihar saying that he would see to get the share of
Rajani in the property from Harihar.
10. The evidence of PW2 Vimbla, mother of the
deceased, is on the same line. Sofar as PW4 and PW6 are
concerned, their evidence would indicate that they were
approached for share of Rajani in the property of her parents.
Their evidence is not directly on the point of cruelty. PW5
Sugrabi is examined to show conduct and harassment by the
accused to Rajani but her evidence indicates that Rajani never
disclosed about cruel treatment to her at the hands of the
accused.
8 Apeal540-03.odt
11. From the above it could be seen that the prosecution
case regarding alleged cruelty and harassment on demand of
money revolves around the evidence of PW1 Harihar and PW2
Vimbla i.e. parents of the deceased. The trial Court in
paragraph 8 of the judgment recorded the reasons to discard
the testimony of these two witnesses. It was found that the
allegations of alleged demand are vague and omnibus and for
want of specific instances, the testimonies of PW1 and PW2
cannot be relied on. Another reason to disbelieve the evidence
of parents of Rajani is based on the letters (Exhs. 35 to 37) sent
by Rajani to her father. There is no whisper in these letters
regarding demand of money by the accused and harassment to
Rajani on such demand. In this connection, learned counsel for
respondent no.1 relied on judgment of the Hon'ble Supreme
Court in State of Maharashtra .vs. Ashok Narayan
Dandalwar (AIR 2000 Supreme Court 3568 (2)) and
submitted that no assertion in any of the letters regarding
cruelty or torture would be enough to refuse conviction on oral
testimony of the interested witnesses. In paragraph 3 of the
judgment, the Hon'ble Supreme Court observed thus:-
"3. Mr. Deshpande, appearing for the State
vehemently contended that the oral evidence
read with the letters supposed to have been
written by the deceased to her brother as well
9 Apeal540-03.odt
as other persons unequivocally indicates the
treatment that was meted out to her by the
accused and therefore, the order of acquittal is
wholly unjustified. But, having gone through
the letters produced by the prosecution, we do
not find even a slightest assertion in any of the
letters complaining against the husband either
he was making any demand at any point of
time or he has assaulted or treated the wife
with cruelty or torture. In that view of the
matter, when in so many letters (Exts. 11 to
17) the deceased has not reflected any cruelty
alleged to have been meted out to her by the
husband. It is difficult to maintain a conviction
on the oral testimony of the younger brother of
the deceased and, in our view, the High Court
was fully justified in recording an order of
acquittal. We see no merits in this appeal to
interfere with the said order of acquittal."
The facts in the case on hand are identical. In the letters
produced by PW1 Harihar written by Rajani, this Court does not
find even a slightest assertion against the husband or his
relatives on demand of money, alleged assault , cruelty or
torture.
12. Another significant factor in the present case is that
witnesses though initially denied that Rajani was suffering from
pain in her abdomen and she was treated for the same by the
Doctor, lateron admitted that Rajani was suffering from pain
and was under treatment of Dr. Jawanjal. Accused have come
with a specific defence that being tired of ailment, Rajani might
10 Apeal540-03.odt
have committed suicide. Accused need not establish the
defence beyond reasonable doubt. The test of preponderance
of probabilities is applicable to the accused when it comes to
the defence raised. In the instant case by extracting material
admissions in the cross-examination of PW1 Harihar and PW2
Vimbla, accused could throw a doubt on the genuineness of the
case of the prosecution regarding cause of death of suicide by
Rajani. The Trial Court relying upon the admissions observed
that possibility of Rajani committing suicide due to ailment is
not ruled out. The observations and reasons are based on the
facts brought on record in the cross-examination.
13. In the above premise, the reasons and findings
recorded by the trial court cannot be said to be perverse or
illegal. Appeal, therefore, deserves to be dismissed. Hence
the following order:-
Criminal Appeal No.540 of 2003 is dismissed. Bail
bonds of the accused shall stand cancelled. No order as to
costs.
(Kum. Indira Jain, J. )
...
halwai/p.s.
