The State Of Maharashtra vs Dattatraya Narhari Ghule And Ors
2017 Latest Caselaw 7647 Bom

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                   CRIMINAL APPEAL NO.210 OF 2008

The State of Maharashtra,
through Police Station Officer,
Police Station, Majalgaon,
Tq.Majalgaon, Dist. Beed                    ..Appellant
                                            (prosecution)

              Vs.

1. Dattatraya s/o. Narhari Ghule,
   Age : 68 years, Occ. Pensioner
   r/o. Shahunagar, Majalgaon,
   Tq. Majalgaon, Dist. Beed.

2. Manohar s/o. Dattatraya Ghule,
   Aged : 31 years, Occ. Business,
   r/o. As above

3. Chandrashekhar s/o. Dattatraya 
   Ghule, Aged 28 years, 
   Occ. Photographer,
   r/o. As above 

4. Sau. Pramilabai w/o. Dattatraya 
   Ghule, Age : 60 years, 
   r/o. As above 

5. Swati w/o. Manohar Ghule,
   Age : 27 years, Occ. Household,
   r/o. As above                            ..Appellants
                                            (orig. accused.)
                         ----
Mrs.S.S.Raut, APP for appellant - State

Mr.Satej S. Jadhav, Advocate for respondents 




 ::: Uploaded on - 12/10/2017            ::: Downloaded on - 12/10/2017 23:30:01 :::
                                           2                       Cri.Appeal.210-08



                                  CORAM : SUNIL P. DESHMUKH AND
                                          SANGITRAO S. PATIL, JJ.

                                  DATE  : SEPTEMBER 28, 2017

JUDGMENT (PER SANGITRAO S. PATIL, J.)

Heard.

2. The State/prosecution has assailed the

judgment dated 25.10.2007 delivered in Sessions Case

No.3 of 2007 by the learned Ad-hoc Addl. Sessions

Judge, Majalgaon, whereby the respondents have been

acquitted of the offences punishable under Sections

498-A and 304-B of the Indian Penal Code ("I.P.C.",

for short).

3. The deceased Deepali was the daughter of the

informant namely, Ashabai Dilip Chopde, resident of

Jod-Hingni, Tq.Dharur, Dist.Beed. The deceased

Deepali and respondent no.3 got married on 11.02.2004

at village Jod-Hingni. From this wedlock, Deepali

delivered a daughter. She was pregnant for the second

time at the time of the incident, which took place on

3 Cri.Appeal.210-08

05.07.2006. Respondent no.1 is the father-in-law,

respondent no.2 is the brother-in-law and respondent

no.4 is the mother-in-law of the deceased Deepali

Respondent no.5 is the wife of respondent no.2.

4. It is alleged that the respondents used to

subject the deceased Deepali to cruelty with a view

to compel her to bring Rs.10,000/- and a motorcycle

from her maternal home. They were ill-treating her

because it was detected that she was developing a

female fetus. Being fed up with the illtreatment

meted out to her, the deceased Deepali set herself

ablaze on 05.07.2006 at about 3.00 a.m. when she was

residing at her matrimonial house.

5. On the report of respondent no.2, A.D. No.30

of 2006 was registered in Police Station, Majalgaon.

The spot panchnama was prepared. Inquest panchnama of

the body of the deceased was prepared. The burnt

pieces of the clothes i.e. petticoat and saree, of

the deceased Deepali, which were smelling of kerosene

4 Cri.Appeal.210-08

and one match box, were seized from the spot of the

incident. The dead body of Deepali was sent to

Government Hospital, Majalgaon, for post-mortem. The

Doctor opined that Deepali died of "cardio-

respiratory arrest due to hemorrhagic shock due to

100% burns".

6. The informant - Ashabai lodged report

against the respondents in Police Station, Majalgaon,

on the day of the incident at about 11.10 a.m. On the

basis of that report, Crime No.156 of 2006 came to be

registered against the respondents for the offences

punishable under Sections 498-A and 306-B of the

I.P.C. The investigation followed. The statements of

the witnesses were recorded and after completion of

the investigation, the respondents came to be

chargesheeted for the above-mentioned offences in the

Court of the learned Judicial Magistrate, First

Class, Majalgaon.

7. The case being triable by the Court of

5 Cri.Appeal.210-08

Session, the learned Judicial Magistrate, First Class

committed it to the Court of Session. The learned

Ad-hoc Addl. Sessions Judge, Majalgaon framed charges

against the respondents for the above-mentioned

offences vide Exh.21 and explained the contents

thereof to them in vernacular. The respondents

pleaded not guilty and claimed to be tried. Their

defence was that of total denial and false

implication.

8. The prosecution examined seven witnesses to

establish guilt of the respondents for the above-

mentioned offences. The learned Trial Judge

scrutinised the said evidence and held that no

offence is established against the respondents. He,

therefore, acquitted them of the said offences as per

the impugned judgment and order.

9. The learned A.P.P. submits that there is

sufficient, positive and dependable evidence on

record to show that the deceased Deepali was being

6 Cri.Appeal.210-08

ill-treated by the respondents with a view to compel

her to bring Rs.10,000/- and a motorcycle from her

material home. During her second pregnancy, a sex

determination test was conducted by the respondents,

which disclosed that she was carrying a female fetus.

On that count also, she was being ill-treated.

Ultimately, being fed up with the said ill-treatment,

Deepali committed suicide within a period of 2½

years of her marriage with respondent no.3. Since

Deepali died under unnatural circumstances, the

presumption under Section 113-B of the Indian

Evidence Act would be against the respondents and

they would be presumed to have committed dowry death

punishable under Section 304-B of the I.P.C.

According to the learned A.P.P., the learned Trial

Judge did not appreciate the facts as well as the

evidence on record properly and wrongly acquitted the

respondents.

10. As against this, the learned Counsel for the

respondents submits that a false case came to be

7 Cri.Appeal.210-08

lodged against the respondents. According to him,

there was no reason for the mother of the deceased

Deepali to lodge report against the respondents.

However, after demise of Deepali, the parents of the

deceased Deepali demanded money from them. Since they

refused to pay anything, a false report came to be

lodged against them. He submits that the financial

condition of respondent no.3 was quite sound. As

against this, the financial condition of the parents

of the deceased Deepali was poor. Therefore, there

was no question of demanding any money by the

respondents from the maternal house of the deceased

Deepali. There is absolutely no evidence to

establish that the deceased Deepali was ill-treated

by the respondents either on the day of the incident

or prior to that. The hearsay and afterthought

evidence coming through the interested witnesses, who

are the maternal relations of the deceased Deepali,

has rightly been disbelieved by the learned Trial

Judge. He submits that no offence was established

8 Cri.Appeal.210-08

against the respondents. He supports the impugned

judgment and order.

11. The informant - Ashabai (PW 1)(Exh.38) is

the mother, while Dilip (PW 3)(Exh,42) is the father

of the deceased Deepali. Pralhad (PW 2)(Exh.40) is

the brother, while Vijay (PW 5)(Exh.44) is the cousin

of the informant Ashabai. Dilip (PW 3)(Exh.42) is the

maternal cousin of Kishor (PW 4)(Exh.43) and Tukaram

(PW 6). Pralhad (PW 2)(Exh.40), Vijay (PW 5) and

Kishor (PW 4) are the residents of Majalgaon. The

respondents are also residents of Majalgaon.

12. It has come in the evidence of the

informant, Pralhad (PW 2), Dilip (PW 3), Kishor

(PW4), Vijay (PW 5) and Tukaram (PW 6) that the

amount of Rs.50,000/- was fixed as dowry at the time

of marriage of respondent no.3 and the deceased

Deepali. An amount of Rs.40,000/- was paid at the

time of the marriage and remaining Rs.10,000/- was to

be paid after one month of the marriage. According

9 Cri.Appeal.210-08

to these witnesses, whenever Deepali used to meet

them, she used to say that the respondents were ill-

treating her as the remaining amount of Rs.10,000/-

was not paid. It has come in the evidence of Dilip

(PW 3) and Pralhad (PW 2) that the remaining amount

of Rs.10,000/- was paid to the respondents in the

presence of Kishor (PW 4) on 21.04.2006. However,

Kishor (PW 4) states at Exh.43 that the said amount

of Rs.10,000/- was paid after one year of the

marriage i.e. in or about February, 2005. The

informant states at Exh.38 that the said amount was

paid to the respondents prior to about one year of

the death of Deepali i.e. in or about July, 2005.

Vijay (PW 5) deposes that Dilip (PW 3) paid the

amount of Rs.10,000/- to the respondents before about

2 to 4 months of the death of Deepali. Thus, the

evidence of these witnesses about payment of the

alleged remaining amount of Rs.10,000/-, out of dowry

fixed at the time of the marriage, is not at all

consistent. Even if it is accepted that the amount of

10 Cri.Appeal.210-08

Rs.10,000/- was paid by Dilip (PW 4) to the

respondents, then the very reason for subjecting the

deceased Deepali to cruelty for that amount of

Rs.10,000/- would not survive anymore and

consequently, there would be no illtreatment to the

deceased Deepali on that count.

13. The informant has come with two more reasons

prompting respondent no.3 to harass/illtreat the

deceased Deepali. She states that all the respondents

started ill-treating the deceased Deepali for want of

motorcycle and that she was carrying a female fetus

in the womb.

14. Had the deceased Deepali been subjected to

cruelty on the ground that she was carrying a female

fetus, the said fact certainly would have been

conveyed either by the deceased Deepali or the

informant to Dilip (PW 3), being father of the

deceased Deepali. Dilip (PW 3) does not state that

the respondents were ill-treating the deceased

11 Cri.Appeal.210-08

Deepali on the ground that she was carrying a female

fetus. When the said fact was not even disclosed by

the deceased Deepali to Dilip (PW 3), the version of

Pralhad (PW 2), who is a distant relative as compared

to Dilip (PW 3), that the deceased Deepali told him

that the respondents were suspecting that she would

deliver a female child and therefore, they were

insisting for abortion and subjecting her to cruelty,

does not stand to reason. Kishor (PW 4), Vijay (PW5),

who were also the close relatives of the deceased

Deepali, did not at all state that the deceased

Deepali was being illtreated by the respondents on

the ground that she was about to deliver one more

female child. Tukaram (PW 6) states that the parents

of the deceased Deepali told him that she had

conceived a female child again and therefore, the

respondents had again started ill-treating her. This

is totally a hearsay evidence. Moreover, when Dilip

(PW 3) himself does not state about this ground, the

version of this witness that the parents of the

12 Cri.Appeal.210-08

deceased Deepali informed him about that ground of

illtreatment cannot at all be accepted.

15. So far as the demand of motorcycle on the

part of the respondents is concerned, the evidence of

the informant and Dilip (PW 3) is not corroborated by

the evidence of Pralhad (PW 2), Kishor (PW 4), Vijay

(PW 5) and Tukaram (PW 6), who were residing at

Majalgaon, where the deceased Deepali also was

residing. They state that the deceased Deepali used

to tell them about the harassment given to her by the

respondents. They do not state that the respondents

were ill-treating the deceased Deepali in order to

fulfil their demand for motorcycle. Moreover, the

evidence of the informant and Dilip (PW 3) in respect

of the demand of motorcycle, is not at all natural

and probable. It has come in the evidence of Dilip

(PW3) that he is working as a casual Ward-boy in

Government Hospital at Ambejogai and earning Rs.100/-

per day. He has no other source of income. This

shows the poor financial condition of the parents of

13 Cri.Appeal.210-08

the deceased Deepali. The informant deposes that

respondent no.1 is a retired teacher, respondent no.2

is running a cloth shop at Majalgaon since long and

respondent no.3 (husband of the deceased Deepali) is

running a photo studio since prior to his marriage.

She further deposes that respondent nos.2 and 3 are

having their own motorcycles. The family of the

respondents own a FIAT car. The informant admits that

the financial condition of the respondents is better

than that of Dilip (PW 3) and herself. She further

states that respondent no.3 had come to her house in

FIAT car to take the deceased Deepali after she

delivered for the first time. If this evidence is

considered, the version of the informant and Dilip

(PW 3), which is not supported by any independent

evidence, that the deceased Deepali was being

harassed in connection with the demand of a

motorcycle, cannot at all be accepted.

16. None of the above-named six witnesses,

states that either of the respondents ever ill-

14 Cri.Appeal.210-08

treated the deceased Deepali in their presence at any

particular point of time. They state that whenever

Deepali used to meet them, she used to tell them

about the alleged illtreatment meted out to her by

the respondents. The prosecution, thus, has relied

on the hearsay evidence of these witnesses to

establish the fact that the deceased was subjected to

cruelty by the respondents in connection with the

demand for money or motorcycle and on the ground that

she was going to deliver one more female child. This

evidence would not come within the ambit of sub-

section (1) of Section 32 of the Evidence Act, since

it does not pertain to the cause of her death or to

any of the circumstances which resulted in her death.

Therefore, the evidence of these witnesses would not

be helpful to establish that the respondents

subjected the deceased to cruelty in connection with

any illegal demand for money or motorcycle.

17. The contents of the memorandum (Exh.30) of

post mortem of the deceased Deepali have not been

15 Cri.Appeal.210-08

disputed on behalf of the respondents. Column no.17

thereof shows that she had sustained 100% of burns.

There is specific mention in the said column that

there was no evidence of injury around neck or other

parts of the body. This fact shows that there was no

physical torture to the deceased Deepali prior to her

death. This fact also negatives the case of the

prosecution that the deceased Deepali was subjected

to cruelty on the day of the incident.

18. As seen from the evidence of Tukaram (PW 6)

and the spot panchnama (Exh.46), the incident took

place in the kitchen in the house of the respondents.

The map of the house of the respondents shows that it

is comprising of a sitting room, a bed room, an

additional room, kitchen, varandah and open space.

Respondent nos.1 to 5 are residing jointly in that

house. There is nothing on record to show that the

deceased Deepali was in the company of any particular

respondent out of respondent nos.1 to 5 in the

kitchen of the house at the time of the incident.

16 Cri.Appeal.210-08

Since it was not the place where respondent no.3

would have gone to sleep, Deepali cannot be said to

be in the custody of respondent no.3 at the time of

the incident. In the circumstances, even the

presumption under Section 106 of the Evidence Act

would not come to the help of the prosecution for

placing burden on the respondents to explain the

circumstances under which Deepali got burnt.

19. There is absolutely no independent evidence

coming before the Court to show that the respondents

ever illtreated the deceased Deepali on any count. No

neighbor has been examined to show that they ever

heard or watched any quarrel between the deceased

Dipali on one hand and the respondents on the other

at any point of time. The above-named witnesses

examined by the prosecution are interested witnesses.

Here, reference may be made to the evidence of Dilip

(PW 3), wherein he admits that when he saw the dead

body of Deepali, he got annoyed against the

respondents. There was a specific suggestion put to

17 Cri.Appeal.210-08

him by the learned Counsel for the respondents before

the trial Court, that after seeing the dead body of

Deepali, he got annoyed and at the instance of his

relatives from Majalgaon, he lodged a false report

against the respondents in the name of his wife

Ashabai. The learned trial Judge recorded the

demeanor of Dilip (PW 3). It is stated that though

this question was again and again asked to Dilip

(PW3), he did not reply. This demeanor of Dilip (PW3)

indicates probability in the suggestion that was put

to him on behalf of the respondents.

20. As stated above, there is no evidence to

establish that the respondents subjected the deceased

Deepali to cruelty in connection with any unlawful

demand for money or any other Article (i.e. dowry).

Therefore, the presumption under Section 113-B of the

Evidence Act would not get attracted to the facts of

the present case. On the same ground, the presumption

under Section 113-A of the Evidence Act also would

not be helpful to the prosecution, even if it is to

18 Cri.Appeal.210-08

be assumed that the deceased Deepali committed

suicide by pouring kerosene on her person and setting

herself ablaze. The prosecution has totally failed to

establish the existence of proximity between the

effect of cruelty based on dowry demand and her

death. It seems that being annoyed after seeing the

dead body of the deceased Deepali, her mother i.e.

Ashabai (PW 1) lodged the report against the

respondents merely on suspicion.

21. The prosecution failed to establish guilt of

the respondents for the above-mentioned offences. The

learned trial Judge rightly appreciated the facts of

the case as well as the evidence on record and

rightly held the respondents not guilty of the said

offence. The view taken by the learned trial Judge is

quite plausible and acceptable one. We concur with

the findings recorded by the learned trial Judge.

The impugned judgment and order need no interference.

The appeal is devoid of any substance. It is liable

to be dismissed. In the result, we pass the

19 Cri.Appeal.210-08

following order:-

O R D E R

(i) The appeal is dismissed.

(ii) Bail bonds of the respondents are cancelled.

They are set at liberty.

(iii) The appeal is accordingly disposed of.

[SANGITRAO S. PATIL, J.] [SUNIL P. DESHMUKH, J.]

kbp