Bombay High Court
Ratnakar Kawaduji Bhongade vs State Of Maharashtra on 1 September, 2017
Bench: Swapna Joshi
1 Judg.010917 apeal 417.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.417 of 2003
Ratnakar Kawaduji Bhongade,
Aged 36 years,
R/o-Katol Road, Nagpur (In Jail) .... Appellant.
-Versus-
State of Maharashtra. .... Respondent.
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Mr. N.H. Joshi, Additional Public Prosecutor for State.
None for the appellant.
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Coram : Mrs. Swapna Joshi, J.
st
Dated : 01
September, 2017.
ORAL JUDGMENT
This appeal has been directed against the judgment and
order passed by the learned 5th Ad hoc Additional Sessions Judge,
Nagpur in Sessions Trial No.408 of 1999 delivered on 19-06-2003, thereby
the learned trial Judge had convicted the appellant/accused under Section
498-A of the Indian Penal Code and sentenced to suffer rigorous
imprisonment for two years and to pay a fine of Rs.2000/-, in default, to
suffer rigorous imprisonment for one month. The appellant/accused further
convicted for the offence punishable under Section 304-B of the IPC and
sentenced to suffer rigorous imprisonment for seven years.
2 Judg.010917 apeal 417.03.odt
2] I have heard Mr. N.H. Joshi, the learned Additional Public
Prosecutor for the State. The appellant/accused and his counsel remained
absent. With the assistance of the learned APP, I have gone through the
record of the case.
3] The prosecution case, in nutshell, is that :-
Manda (deceased) was married with the appellant/accused
who was serving as a Constable, in the year 1997. After marriage, Manda
and the appellant/accused resided at Nagpur for sometime and thereafter
they started residing at Kamptee. It is the case of the prosecution that, the
appellant/accused used to consume liquor and under the influence of
liquor he used to beat Manda. About six months prior to the death of
Manda, Jagdish Narnaware who is the husband of sister of Manda,
visited the house of Manda. However, Jagdish was driven out of the
house by the appellant/accused and was not provided good treatment.
The appellant/accused did not allow the relatives of Manda to visit his
house. It is the case of the prosecution that, one year after the marriage
the appellant/accused had demanded the amount of Rs. 10,000/- from the
mother of Manda. Accordingly, the mother of Manda had paid the said
amount to the appellant/accused by borrowing it from her brother and
nephew. The appellant/accused used to doubt the fidelity of Manda. On
14-07-1999, at about 8.30 am, the Police visited the paternal house of
Manda and informed about her death.
4] So far as the death of Manda is concerned, as per the case
of the prosecution (PW-8) Sanjay who was the landlord of the house
3 Judg.010917 apeal 417.03.odt
where Manda was staying with the appellant/accused, heard the shout of
the appellant during the intervening night of 13-07-1999 to 14-07-1999.
The appellant/accused was shouting that his wife is burnt. He was
requesting to save her. Accordingly on hearing the shouts, PW-8 rushed
to the place of incident. He noticed that the appellant/accused was lying
on the bed as he had received fracture injury and his wife (deceased) was
in the bathroom in burnt condition. PW-8 reported the matter to the
Police. Initially accidental death bearing no.31 of 1999 was registered.
The Police reported about the death of Manda to her mother. In the
meantime, the spot panchanama was drawn on 14-07-1999. Similarly, the
inquest panchanama was also conducted on the same day. The dead
body of Manda was referred for post mortem. The Police took charge of a
kerosene can, match stick, towel and clothes of Manda which were also
smelling kerosene, from the place of incident. The investigating agency
recorded the statements of the relatives of Manda. On the basis of the
statement of Indubai i.e. mother of manda, to the effect that the
appellant/accused illtreated Manda (deceased) under the influence of
liquor, he used to demand money from her and therefore Manda had
committed suicide, the offence was registered under Sections 498-A, 306
and 304-B of IPC. The charge sheet was filed. The case was committed
to the Court of Sessions. The learned trial Judge framed the charge. After
conducting the trial and on analysis of the evidence, the learned trial
Judge was convicted the appellant/accused as aforesaid.
4 Judg.010917 apeal 417.03.odt
5] Mr. N.H. Joshi, the learned A.P.P. contended that the learned
trial Judge has rightly convicted the appellant/accused as Manda died in
unnatural circumstances and the appellant/accused failed to satisfy the
Court as to under what circumstances Manda was burnt and succumbed
to the injuries.
6] In order to substantiate its contention, the prosecution has
heavily relied upon the testimony of Indubai (PW-1) who is the mother of
deceased Manda. According to PW-1, Manda got married with the
appellant/accused in the year 1997. The appellant/accused used to
consume liquor and beat Manda. About six months prior to the incident
her son-in-law Jagdish visited the house of Manda, however, he was not
allowed to enter inside the house. The appellant/accused drove him out
of the house and he did not provide good treatment to him. PW-1
deposed that she stayed in the house of Manda for a night. During that
night the appellant/accused said that he would kill Manda. On this, she
asked Manda whether she is ready to come with her. At that time Manda
told her that, the appellant/accused has met with an accident and
therefore she is unable to come with her. Manda also informed her that
the appellant/accused is addicted to consume liquor. PW-1 specifically
stated that, one year after the marriage the appellant/accused had come
to her and stayed for 10 days and demanded the amount of Rs.10,000/-
from her and said that if she does not pay the amount to him, he would
stay with his wife in her house. Somehow, PW-1 paid the amount of
Rs.10,000/- to the appellant/accused. She borrowed the amount of Rs.
5 Judg.010917 apeal 417.03.odt
7,000/- from her brother and Rs.3,000/- from her nephew. PW-1 stated
that the appellant/accused drove Manda out of the house and he used to
suspect her fidelity. On 14-07-1999, she came to know from Police that
Manda is lying in the bathroom of her house in burnt condition. During the
cross examination PW-1 admitted that, she had not stated before the
Police about the fact of going to the house of the appellant/accused and
about the appellant/accused driving her son-in-law out of his house. She
also admitted that she had stated to the Police that the appellant/accused
had had come to her and stayed for 10 days and demanded the amount of
Rs.10,000/- from her and said that if she does not pay the said amount to
him, he would stay with his wife in her house. She also admitted that she
had stated to the Police that the appellant/accused had threatened her
that he would kill Manda. All these statements of PW-1 are her improved
versions. The PW-1 made an improvement in her evidence before the
Court with regard to the fact that the appellant/accused had come to his
house after one year of the marriage and stayed for 10 days and
demanded the amount of Rs. 10,000/- from her and said that if she does
not pay the amount, he would stay with his wife in her house. Somehow,
she paid the amount of Rs.10,000/- to the appellant/accused. She
borrowed the amount of Rs. 7,000/- from her brother and Rs. 3,000/- from
her nephew. It is noticed that the statement of PW-1 is full of
discrepancies.
7] So far as the testimony of Pundalik (PW-2) is concerned,
who is the uncle of deceased Manda, deposed that the treatment given
6 Judg.010917 apeal 417.03.odt
by the appellant/accused to Manda was not good. The appellant/accused
did not send Manda to the house of her parents. Since her marriage with
the appellant/accused the appellant/accused used to doubt her character
and he used to beat Manda under the influence of liquor. The
appellant/accused only once visited to the house of parents of Manda. At
that time he was under the influence of liquor and he opposed PW-2.
PW-2 stated that once he had been to the house of the appellant/accused
to bring Manda with him, however, the appellant/accused did not send
Manda with him.
8] On going through the testimony of Devidas (PW-3) who is
the brother of deceased Manda, it is noticed that, no material can be
elicited from his testimony which would indicate that the appellant/accused
used to illtreat Manda. According to PW-3, the appellant/accused used
to return his house at late hours under the influence of liquor. He used to
beat Manda. According to PW-3, when he stayed with the
appellant/accused for six days, he came to know about this fact. PW-3
stated that he asked Manda to come to his house and take divorce from
the appellant/accused. However, Manda refused to do so. Significantly,
the testimony of PW-3 appears to be an improvement with regard to the
fact that he went to the house of the appellant/accused and stayed in his
house for 10 days and at that time he saw the appellant/accused
consuming liquor and assaulting Manda. PW-3 failed to state as to when
he has stated before the Police about asking Manda to come back with
him and seek divorce from the appellant/accused. The testimony of PW-3
7 Judg.010917 apeal 417.03.odt
does not inspire confidence due to the improvement in his version about
the illtreatment given by the appellant/accused to Manda.
9] According to Jagdish Narnavare (PW-5) who is the sister's
husband of Manda, one year after the marriage he had visited the house
of Manda. At that time Manda disclosed him that, the appellant/accused
used to suspect her fidelity and not allow her relatives to visit her house.
Significantly, the said version in the form of improvement, hence, it cannot
be relied upon. The testimony of PW-5 does not inspire confidence.
10] According to Kawadoo (PW-6) who is the maternal uncle of
Manda, deposed that when Manda visited Anjangaon she disclosed that,
the appellant/accused used to consume liquor daily and beat her. The
appellant/accused was asking for an amount to purchase a vehicle and
he threatened that if the said amount is not brought he would kill Manda.
PW-6 stated that he requested PW-1 and PW-5 to go to the house of the
appellant/accused. However, when they went they were scolded by the
appellant/accused. According to PW-6, the appellant/accused used to
beat Manda under the influence of liquor and threaten her that if she
would not conceive he would pour kerosene on her body and set her
ablaze. He further stated that the appellant/accused used to visit their
house and that time he demanded the amount and also misbehaved
under the influence of liquor. According to PW-6, the appellant/accused
used to lock the premises from outside. He used to confine Manda in the
house while he was leaving for duty and he used to doubt her fidelity.
According to PW-6, the appellant/accused threatened PW-1 that he would
8 Judg.010917 apeal 417.03.odt
kill her some day or the other. Thereafter, PW-6 returned to his house.
PW-6 stated that after about six days he received a message about the
said incident. It is significant to note that, the testimony of PW-6 with
regard to the fact that the appellant/accused used to lock the premises
from outside while he was leaving for duty and confined Manda in the
house and he used to suspect her character and Manda requested PW-6
to remove her from the said confinement and also the fact that the
appellant/accused used to threat her that he would kill her some day or
the other are found to be improvements in the version of PW-6. Similarly,
PW-6 made an improvement about the fact that the appellant/accused
visited the Anjangaon and misbehaved under the influence of liquor with
him. There is also an improvement about the fact that Manda told him
that the appellant/accused used to confine her and lock the door of the
house from outside. As far as the testimony of PW-6 that Manda informed
him that the appellant/accused said that if she would not conceive he
would pour kerosene on her body and set her ablaze. It is not clear as to
why PW-6 has immediately not lodged the complaint against the
appellant/accused when he had given so serious threats to Manda. It is
noticed that the evidence of PW-6 is found to be full with discrepancies
which go to the root of the case and there is no convincing evidence on
record with regard to the fact that while the applicant was leaving for duty,
he confined Manda in the house and used to illtreat Manda. It is also not
clear as to why PW-6 has not informed the mother of Manda about the
said fact & why he has not lodged report immediately against the
9 Judg.010917 apeal 417.03.odt
appellant/accused when he had given so serious threats to Manda.
Similarly the testimony of PW-6 in this regard has no corroboration. The
evidence of PW-6 does not inspire confidence at all.
11] As far as the testimony of Udaybhan (PW-7) is concerned,
PW-7 deposed that PW-1 had come to him and told that there is always
dispute between the appellant/accused and Manda. She asked him to
hand over the amount of Rs. 7,000/- to her for giving it to the
appellant/accused. Thereafter PW-1 meet him. At that time PW-7 asked
her as to what she had done of the amount which he had handed over to
her. PW-1 informed to PW-7 that she had handed over the amount of
Rs.10,000/- to the appellant/accused. It is significant to note that in the
cross examination of PW-7 he has admitted that he does not remember
exactly as to when the amount of Rs. 7,000/- was given by him to PW-1.
There is also an improvement in his testimony about the fact that he asked
PW-1 as to what was happened with the said amount and PW-1 informed
that she had given the said amount to the appellant/accused. In view of
above, the version of PW-7 appears to be doubtful whether he had
handed over over the amount of Rs. 7,000/- to PW-1 and PW-1 has
informed him that she had handed over the said amount to the
appellant/accused. It is already discussed above, there is an improvement
in the version of PW-7 about the fact that PW-1 had handed over the
amount of Rs. 7000/- to the appellant/accused.
12] The testimony of Sanjay (PW-8) shows that the
appellant/accused and his wife were residing in the house owned by him.
10 Judg.010917 apeal 417.03.odt
During the intervening night of 13-07-1999 and 14-07-1999, at about 00.15
hours, he heard the shouts of the appellant/accused that his wife is
burning. He, therefore, rushed to the house of the appellant/accused.
He noticed that the deceased was in burnt condition in the bathroom of
the house and there was smell of kerosene from the house of the
appellant/accused. He lodged the complaint about the said incident to the
Police. PW-8 further stated that when he reached the house of the
appellant/accused he found the appellant/accused on bed and unable to
move as he had fracture injury. PW-8 specifically stated that he did not
witness or hear any kind of dispute between the appellant/accused and
his wife. He stated that the door of the bathroom was closed from inside.
He noticed the layer of kerosene oil in the bathroom. From the testimony
of PW-8 it appears that when PW-8 reached the place of incident, the
appellant/accused was on bed and he was unable to move from the bed
due to the fracture injury to his leg. It is also noticed that the door of the
bathroom was closed from inside which indicates that Manda committed
suicide inside the bathroom.
13] On careful scrutiny of all the witnesses, it is noticed that,
there is absolutely no convincing evidence on record to show that the
appellant/accused illtreated the victim and due to the said illtreatment at
the hands of the appellant/accused, she committed suicide. No about
the deceased died under unnatural circumstances within seven years of
her marriage.
11 Judg.010917 apeal 417.03.odt
14] In this regard it would be advantageous to go through the
provisions of Section 304-B of the IPC, which are reproduced below as
under :-
"[304-B. Dowry death.-(1) Where the death of a woman is
caused by an burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of her
marriage and it is shown that son before her death she was
subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with, any
demand for dowry, such death shall be called "dowry
death", and such husband or relative shall be deemed to
have caused her death.
Explanation- For the purposes of this sub-section, "dowry"
shall have the same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished
with imprisonment for a term which shall not be less than
seven years but which may extend to imprisonment for life.]
Ingredients of Section.- In order to seek conviction under
section 304-B, I.P.Code against a person for the offence of
dowry death, the prosecution is obliged to prove that :(a)
the death of a woman was caused by burns or bodily injury
or had occurred otherwise than under normal
circumstances; (b) such death should have occurred within
7 years of her marriage (c) the deceased was subject to
cruelty or harassment by her husband or by any relative of
her husband; (d) such cruelty or harassment should be for
or in connection with the demand of dowry; and (e) to such
cruelty or harassment the deceased should have been
subjected soon before her death."
15] The Hon'ble apex Court in the case of Rajinder Singh vs.
State of Punjab, 2016(1) Mh.L.J. (Cri.) (S.C.) 169 = AIR 2015 SC 1359 in
12 Judg.010917 apeal 417.03.odt
Para 23 observed as under :
"We endorse what has been said by these two
decisions. Days or months are not what is to be seen.
What must be borne in mind is that the word "soon"
does not mean "immediate". A fair and pragmatic
construction keeping in mind the great social evil that
has led to the enactment of section 304-B would make it
clear that the expression is a relative expression. Time
lags may differ from case to case. All that is necessary
is that the demand for dowry should not be stale but
should be the continuing cause for the death of the
married woman under section 304-B."
16] In the instant case the prosecution has established that, the
death of Manda was caused by burn injuries and the said death occurred
within seven years of her marriage. However, there is absolutely no iota
of evidence on record to show that deceased Manda was subjected to
cruelty or harassment by her husband i.e the appellant/accused and such
cruelty or harassment was in connection with the demand of dowry. It is
also not proved by the prosecution that the deceased was subjected to
cruelty or harassment soon before her death. The prosecution has
miserably failed to prove any of the charges levelled against the
appellant/accused. The learned trial Judge has failed to consider all the
above said aspects in the testimony of the witnesses which are discussed
above. Apparently, the judgment of the learned trial Judge appears to be
illegal and preserve and it needs to be set aside. Hence, the following
order:-
13 Judg.010917 apeal 417.03.odt
O r d e r
(a) Criminal Appeal No.417 of 2003 is allowed.
(b) The judgment and order dated 19-06-2003 delivered
by 5st Ad hoc Additional Sessions Judge, Nagpur
in Sessions Trial No.408 of 1999 is quashed and set
aside.
(c) The appellant is acquitted of the offences under
Sections 498-A and 304-B of I.P.C.
(d) The bail bond furnished by the appellant stands
cancelled.
(e) Muddemal property be dealt with as directed by Trial
Court after the appeal period is over.
JUDGE
Deshmukh
