The State Of Maharashtra vs Ramrao Kishanrao Chavan And Orrs
2018 Latest Caselaw 182 Bom

                                                        Cri.Appeal No.423/2002
                                       1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 423 OF 2002

The State of Maharashtra
Through Police Station Officer,
Police Station Kalamnuri,
Taluka Kalamnuri,
District Hingoli                                     ..Appellant

        Versus

1.      Ramrao Kishanrao Chavan
        Age 28 years, Occu. Agri.,
        R/o Nandapur, Taluka Kalamnuri,
        District Hingoli

2.      Rangrao s/o Kishanrao Chavan,
        Age 35 years, Occu. Agri.,
        R/o as above

3.      Santosh s/o Kisanrao Chavan,
        Age 26 years, Occu. Agri.,
        R/o as above

4.      Kishanrao s/o Vithalrao Chavan,
        Age 65 years, Occu. Agri.,

5.      Vithabai w/o Kishanrao Chavan,
        Age 60 years, Occu. Agri.,
        R/o as above                                 ..Respondents


Mr S.J. Salgare, APP for appellant
Mr Abhay Ostwal, Advocate for respondents


                                     CORAM : T.V. NALAWADE AND
                                             A.M. DHAVALE, JJ

                                     DATE OF RESERVING
                                     THE JUDGMENT : 8.12.2017

                                     DATE OF PRONOUNCING
                                     THE JUDGMENT : 9.1.2018

JUDGMENT (Per A.M. Dhavale, J.)

1. This is an appeal by the State aggrieved by the judgment of

acquittal of accused nos.1 to 5 for offences under Sections 498-A,

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304-B alternative 302 read with Sec.34 of Indian Penal Code delivered

by the learned Additional Sessions Judge, Hingoli dated 30.4.2002 in

Sessions Case No.62 of 2001.

2. The facts relevant for deciding this appeal may be stated as

follows:

The crime was registered at C.R. No.73/2001 under Sections

302, 304-B, 498-A read with Sec.34 of Indian Penal Code on the basis

of F.I.R. Exh.62 lodged by P.W.4 Ananda Patange, resident of Kondhur,

at Police Station Kallamnuri. As per the F.I.R., deceased Indubai was

sister of P.W.4 Ananda. Her marriage was solemnised with accused

no.1 Ramrao, residing at Nandapur, Taluka Kalamnuri on 13.5.1996.

Accused no.2 Rangrao and accused no.3 Santosh are brothers of

accused no.1 and accused no.4 Kishan and accused no.5 Vithabai are

their parents. They were residing together and were doing

agricultural work. Indubai was given good treatment for first six

months, but thereafter all the accused started ill-treating her and

assaulting her for petty reasons. They started demanding from her

dowry of Rs.1 lac for purchasing a field. When Indubai visited her

maternal house, she disclosed these facts to her maternal relatives.

She also wrote some letters, however, since her parents were poor,

they were unable to meet the demand. In order to preserve the

married life of Indubai, her maternal relatives persuaded her to

resume co-habitation. P.W.4 Ananda and his father had persuaded all

the accused that they should not assault and ill-treat Indubai.

However, ill-treatment to Indubai continued. When Indubai was

pregnant for two months, she was not provided food and was

Cri.Appeal No.423/2002

assaulted and she was told that if dowry of Rs.1 lac would be paid,

then only she would be maintained. On 26.4.2001, there was

marriage of P.W.4 Ananda, which was attended by Indubai. That time,

she told her maternal relatives that she was subjected to unbearable

harassment and they should pay Rs.1 lac to them, as she was unable

to bear the ill-treatment. Still, they persuaded Indubai to resume co-

habitation and sent her back to her matrimonial house. On 19.5.2001

at 3.00 p.m., one neighbourer Deorao gave a message that accused

no.1 Ramrao had called them in their field. Hence, P.W.4 Ananda and

his cousin Waman went to the field of the accused at 4.00 p.m.

Ramrao told P.W.4 Ananda that Indubai was not taking meals, as she

had sulked. P.W.4 Ananda noticed that there were signs of injuries on

her neck and Indubai was not talking. She was unconscious. There

were also injury marks on her person. All the accused were present

there. They did not allow them to minutely observe body of Indubai.

Then, she was put in auto-rickshaw and she was brought to Dr. Kandi

at Hingoli. Dr. Kandi advised them to take her to Civil Hospital. They

took Indubai to Civil Hospital, Hingoli but doctors from Hingoli advised

them to take her to Civil Hospital, Nanded. When they reached near

Ardhapur, they realised that Indubai must have died. When she was

taken to the Civil Hospital, Nanded, she was examined and declared

dead. P.W.4 Ananda noticed injuries of assault on her neck, back, ribs

and elbow. He accordingly lodged F.I.R. on 21.5.2000 at 4.10 p.m.

P.W.14 P.I. Todase conducted the investigation. He drew spot

panchnama and inquest panchnama. He also got autopsy done on the

dead body. P.W.3 Dr. Suryakant in his post mortem notes recorded

cause of death by throttling. The statements of material witnesses

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were recorded. The chits purported to be written by deceased to her

maternal relatives were seized and school notebook of Indubai as a

specimen handwriting was also seized. Chits and the notebook were

sent to handwriting expert. The handwriting expert supported the

prosecution case. The accused came to be arrested. Viscera was

forwarded to Chemical Analyst. On completion of investigation, the

charge-sheet was submitted in the Court.

3. In due course, the case was committed to the Court of Sessions.

The Charge was framed at Exh.10 under Section 498-A, 302, 304-B

read with Sec.34 of Indian Penal Code in the alternative, 302 read with

Section 109 of Indian Penal Code. The accused pleaded not guilty.

The prosecution examined fourteen witnesses. The accused have

denied that Indubai died of throttling. The defence has examined

Medical Officer from Hingoli, who has stated that Indubai had

suspected meningitis and he had reported the matter to police and

forwarded the patient to Civil Hospital, Nanded.

4. After considering the matter on merits, the learned Additional

Sessions Judge acquitted all the accused of all the charges. Hence this

appeal.

5. Mr S.J. Salgare, learned A.P.P. for the State argued that there is

reliable evidence of relatives of Indubai that the accused had

subjected her to dowry demands and ill-treatment. She had written

letters, which are proved through examination of handwriting expert.

She had from time to time given information about her ill-treatment to

her maternal relatives, lastly on 26.4.2001 at the time of marriage of

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her brother P.W.4 Ananda. Within 15 to 18 days thereafter she has

met with a death. He relied on the evidence of P.W.3 Dr. Suryakant

and the post mortem notes showing that scratches were found on the

neck and two contusions were found in scapula and lumber region and

the doctor has given opinion that Indubai met with a death due to

asphyxia due to throttling. He argued that it is a case of custodial

death and, therefore, all the accused should be held guilty. Besides,

he argued that the death has occurred within seven years of marriage

and the presumption under Section 113-B of the Evidence Act will be

applicable. The accused can be held guilty under Section 304-B of

Indian Penal Code for dowry death.

6. Per contra, learned Advocate Mr Abhay Ostwal has argued that

in case of throttling, the death is instantaneous and Indubai could not

have survived for such a long time. He referred to the evidence of

defence to show that the opinion about death by throttling cannot be

accepted and Indubai has met with a natural death due to meningitis.

He also argued that the allegations about dowry demands and ill-

treatment are vague, not supported with any circumstantial evidence

and are unreliable. There were no previous complaints. There is

delay of two days in lodging the F.I.R. The letters sent by Indubai are

not proved to be in her handwriting. Her specimen handwriting is not

proved by examining the witness. P.W.4 Ananda brother of deceased

and accused no.1 Ramrao both were together in taking Indubai to Civil

Hospital, Hingoli and thereafter to Civil Hospital, Nanded. The

accused have given intimation about ill health of Indubai to the

informant. The conduct of the accused rules out the possibility that

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they had subjected her to ill-treatment. Hence, the learned trial Judge

has rightly acquitted the accused and no interference is called for. He

has relied on number of rulings on the point of proof of handwriting

evidence and scope of appellate Court in interfering with the

judgment of acquittal. On the basis of evidence on record, the points

for our consideration with our findings are as follows:

(I)     Whether Indubai met with
        homicidal death ?                   .. Not proved


(II)    Whether accused nos.1 to 5 in
        furtherance of their common
        intention committed murder of
        Indubai ?                           .. Not proved


(III)   Whether accused nos.1 to 5 in
        furtherance of their common
        intention subjected Indubai to
        cruelty by making dowry demands

and physical and mental ill-treatment? .. Proved

(IV) Whether accused nos.1 to 5 in furtherance of their common intention caused dowry death of Indubai ? .. Not proved

(V) What order ? .. Accused 1 to 5 are held guilty under Section 498-A r/w Sec.34 of IPC

Cri.Appeal No.423/2002

- REASONS -

7. The prosecution has examined fourteen witnesses and produced

number of documents, which may be conveniently grouped as follows:

(I) Custodial death

P.W.4 Ananda, brother of deceased. His F.I.R. dated 21.5.2001

Exh.62.

P.W.3 Dr. Suryakant and provisional death certificate Exh.55

Post Mortem notes Exh.56 showing death by throttling.

There is counter evidence by defence D.W.!. Dr Sudhir - case

papers Exh.93 maintained by him.

Reference letter to Government Medical College, Nanded

Exh.94. Intimation to P.S.I. Hingoli, Exh.98.

P.W.2 Nandabai, wife of brother-in-law of deceased Indubai, who

has given a statement before the police and before learned Judicial

Magistrate, First Class under Sec.164 of Cr.P.C. Exh.50 that accused

no.1 had committed murder of Indubai by throttling. She turned

hostile.

(II) Evidence of ill-treatment, dowry demand :

P.W.4 Ananda, brother of the deceased

P.W.12 Sambharrao, father of the deceased

P.W.9 Bhagwan, a neighbour of P.W.12 Sambharrao

P.W.10 Uttam, a neighbourer

P.W.11 Subhash, a neighbourer

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(III) Evidence of written complaints by Indubai :

P.W.4 Ananda, brother of the deceased

P.W.12 Sambharrao, father of the deceased

P.W.13 Sahebrao, seizure of note book

admitted handwriting Article 11 (panchnama Exh.82)

Seizure of three post cards and one letter on a paper,

panchnama Exh.67 proved by P.W.6 Laxman

P.W.5 Sanjay handwriting expert - his opinion Exh.65

and the xerox copies of disputed document produced at

A-1, A-2, A-3 and Articles A-3 A-4, A-6 to A-11

(IV) Panchas and other evidence:

P.W.1 Baburao - spot panch - panchnama at Exh.46

P.W.7 Sahebrao - panch to inquest panchnama Exh.70

P.W.8 Madhav - discovery of rope used for assault by

accused no.1 Ramrao (Panchnama at Exh.74)

P.W.14 Investigating Officer P.I. Shriram Todse

8. P.W.2 Nandabai, wife of brother-in-law of the deceased was

posed as eye witness, but she declined to support the prosecution. In

the cross-examination by learned Advocate for the accused, she has

completely admitted the defence story. The evidence shows that she

had given statement under Section 164 Cr.P.C. before the Magistrate,

which is at Exh.50. It is a cryptic statement nonetheless Nandabai had

stated before Magistrate that accused no.1 Ramrao, husband of

Indubai had committed her murder by throttling and she had

witnessed the incident on the date of incident at 10.00 a.m. at her

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matrimonial house. Her evidence before this Court is totally

contradictory to it. Besides, she had filed civil suit for partition.

Certified copy of the plaint therein also discloses that on 19.5.2001

(this certified copy ought to have been exhibited, but it is not

exhibited), accused no.1 Ramrao had ill-treated and assaulted Indubai

and committed her murder.

9. We also find that there were certain letters written by Nandabai

to her parents. Those were not got proved through Nandabai. We find

that the evidence of Nandabai will have to be discarded altogether.

Her statement under Section 164 or the plaint filed by her in the suit

disclosing certain material facts about the murder cannot be used as

substantive peace of evidence as she is not supporting the

prosecution.

10. The evidence of P.W.4 Ananda shows that he is material witness

on the point of murder of Indubai. As per his evidence, on 19.5.2001,

he received message from the accused at 3.00 p.m. that accused no.1

Ramrao had called him to his house. He and Deorao went to the

house of accused. Ramrao told them that Indubai was sulking and was

not talking. Then he, Waman and accused no.1 Ramrao went to

Nandapur at 4.00 p.m. He found Indubai sleeping on a wooden cot.

She was not talking and was unconscious. He stated that accused

no.1 Ramrao and in-laws of Indubai did not allow him to closely

observe Indubai's body. She was carried in auto-rickshaw from

Nandapur to Hingoli. They first went to the hospital of Dr. Kandi, but

he did not examine her. P.W.4 Ananda stated that he had seen marks

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on throat and marks of violence on her body. Dr. Kandi saw her from

a distance and proposed them to take her to government hospital.

She was brought to Government Hospital, Hingoli. The doctor from

Government Hospital, Hingoli referred her to Government Hospital,

Nanded. At 7.00 p.m., they left Hingoli for proceeding to Nanded by a

private jeep. P.W.4 Ananda, contrary to his previous statement stated

that Indubai was dead at Nandapur and he felt so while leaving

Nandapur, but his previous statement disclosed that he had stated

that when they reached near Ardhapur, Indubai showed symptoms of

her death. When Indubai was taken to the Civil Hospital at 9.00 p.m.,

she was declared dead. He stated that there were marks of violence

on her throat, rib cage and shoulder. He stated that he was not aware

whether Indubai was examined or not in Civil Hospital, Hingoli, but he

admitted that they had reached Civil Hospital, Hingoli at 5.45 p.m.

11. P.W.7 Sonbarao Dathikar is panch to the inquest panchnama

Exh.70. He stated that in the hospital at Nanded, he had seen the

dead body of a woman. There were marks of violence on the right

side of neck, right ear and right scapular region and blood was oozing

from the mouth. He has proved inquest panchnama Exh.70.

12. In the cross-examination, it was brought on record that he was

returning after attending a movie, but that is not much relevant.

13. The main evidence is of P.W.3 Medical Officer Dr. Suryakant. He

along with Dr. Paliwal conducted post mortem on the dead body on

20.5.2001 at 2.30 to 3.30 p.m. He noticed following facts :

Cri.Appeal No.423/2002

1) Rigor mortis present

2) Following three surface wounds :

(I) two contusions on left scapula admeasuring 2 cms

in circumference one below the other

(II) A contusion on right lumber region admeasuring

4 cm x 2 cm rectangular in shape

(III) Scratches on neck. There were two finger nail

marks in the center over the marks in the center over

thyroid cartilage. There were two nail marks on (1) left

side and (2) nail marks on right side below the above

scratches. Subcutaneous tissue was found congested.

He stated that all the three injuries were ante mortem and there

was congestion in brain, serous pleura, both lungs, pericardium, large

vessels, esophagus, stomach and its contents, small intestine, large

intestine, liver, pancreas, spleen and kidney. He had preserved the

viscera but Chemical Analyst's report disclosed that there was no

poisoning. He, therefore, confirmed his opinion that probable cause of

death was due to asphyxia due to throttling. His provisional post

mortem certificate is at Exh.55 and post mortem report is at Exh.56.

He stated that injury no.3 was possible due to forceful throttling by

both the hands and injury nos.1 and 2 were possible by rope Court

article no.10.

Cri.Appeal No.423/2002

14. Dr.Paliwal initially denied, but after referring to Dr. Modi's

jurisprudence, agreed that throttling means constriction produced by

the pressure of the fingers and palms on the throat. He admitted that

injury no.3 is scratches caused by finger nails. Those were superficial

in nature. In further cross-examination, he admitted that there were

no contusions on the neck showing thumb marks or finger marks on

the neck. He had opened the respiratory track. He found no fracture

of hyoid bone. No fracture of larynx, trachea and thyroid cartilages.

He admitted that no damage to the trachea and larynx. He had stated

that walls of thorax ribs cartilages were found intact. He admitted

that in case of epileptic attack, there is arrest of breathing and oozing

of froth but such froth is not reddish in colour. He admitted that in

case of throttling, the death is instant (this opinion does not seem to

be sound). Throttling may cause obstruction in supply of oxygen,

which can cause internal damage and the death may be delayed, but

learned A.P.P. has not cross-examined him on this point.

15. In the present case, P.W.4 Ananda was along with Indubai right

from 4.00 to 9.00 p.m. Indubai was unconscious, but alive. She was

brought to Civil Hospital, Hingoli. She was examined there and D.W.1

Dr. Sudhir Bhagat had attended to her. His evidence that he had

examined her and prepared case papers and given treatment does

not appear to be correct. As per case papers, Indubai was in the

hospital from 5.50 to 6.00 p.m. It is impossible for D.W.1 Dr. Bhagat

to examine her, note down all the symptoms including vital

parameters and then provide her medical treatment in the form of

I.V.fluid, injectable ampicillin, gentamicin, Soda Bicarb Oxygen

Cri.Appeal No.423/2002

inhalation Dexamethazone etc. as deposed by him. Dr Bhagat has

produced case papers running into six pages. We find that his

evidence is not reliable and trustworthy regarding the treatment given

by him and preparation of case papers as time of ten minutes is too

short for writing such lengthy symptoms and treatment, but he has

produced copy of his intimation letter to the Police about bringing

Indubai Ramrao Chavan in unconscious condition to the police station

and referring her to expert management. We find the evidence of Dr.

Bhagat reliable to the extent that when Indubai was brought to him,

she was unconscious and serious, but alive.

16. The evidence of Dr. Suryakant discloses that besides scratches

on the neck, no other symptoms causing internal damage to the

respiratory system were noted by him. The death was not instant.

There was no internal damage to larynx, trachea, hyoid bone and

thyroid cartilage, bronchus walls of thorax and ribs. The evidence of

doctor that there was froth oozing from the mouth and scratches were

found on the neck is insufficient to hold that deceased Indubai met

with a homicidal death by throttling. P.W.3 Dr. Suryakant's admission

that the death could have been instant, either favours the prosecution

or throws doubt about his expert knowledge.

17. There are three contusions noticed on the body, two are circular

(with diameter of 2 cm) and one is rectangular 4 x 2 cm. These

contusions are not possible by a rope (tarata). The opinion of Dr.

Suryakant that these contusions were possible by rope Article 10 is

not medically sound and cannot be believed. Learned A.P.P. Mr

Salgare relied on :

Cri.Appeal No.423/2002

1) Appasaheb and anr. Vs. State of Maharashtra (2007) 9 SCC 721 ( Para 11 with regard to definition of dowry)

2) Hira Lal and ors. Vs. State (Govt. of NCT), Delhi (2003)8 SCC 80 (Expression "soon before" before her death)

3) Satvir Singh and Ors. Vs. State of Punjab and anr.

(2001) 8 SCC 633 (with regard to presumption under Sec113-A of the Evidence Act )

4) K. Prema S. Rao & anr.Vs.Yadla Shrinivasa Rao & anr.

(2003) 1 SCC 217 (with regard to the interpretation of provisions of Section 304-B IPC - dowry death)

5) Magan Bihari Lal Vs. The State of Maharashtra (1977) 2 SCC 210 (The expression opinion on the point of handwriting should be received with great caution. It cannot be sole basis of conviction. The corrororation is required for such opinion)

In the present case, the evidence on record creates a doubt

whether deceased Indubai met with unnatural death or not. There is a

possibility that she might have died naturally. In the light of this

possibility, no presumption of dowry death can be drawn though the

allegations of ill-treatment for dowry are established. We find that

there is no reliable and trustworthy evidence to show that deceased

Indubai met with a homicidal death. In the light of these facts, the

conviction under Section 302 of Indian Penal Code is certainly not

sustainable. Points no.1 and 2 are answered accordingly.

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18. Proof on subjecting Indubai to cruelty :

P.W.4 Ananda (brother) and P.W.12 Sambharrao (father) are the

main witnesses to the charge of Section 498-A read with Sec.34 of

Indian Penal Code. As per admitted facts, Indubai married to accused

no.1 Ramrao on 13.5.1996 and thereafter started co-habiting with

him. The other accused were also residing with them. P.W.4 Ananda

has stated that dowry of Rs.91,000/- was settled before marriage.

Rs.66,000/- was paid at the time of marriage and Rs.25,000/- could

not be paid due to poverty. Indubai was treated well for a period of

six months after marriage, but thereafter her husband and in-laws

started ill-treating on petty grounds. They were asking her to bring

Rs.1 lac for purchasing land and were beating her on that count.

Whenever she was visiting her maternal house, she was narrating

these instances of ill-treatment to them. She had also written letters

to them, but still they persuaded her to resume co-habitation and

persuaded the accused not to beat her. Still, the ill-treatment was

continued and Indubai was not provided food, even when she was

pregnant. He deposed that lastly on 26.4.2001, Indubai attended his

marriage and that time she again narrated to them about ill-treatment

by her husband and family members. She deposed about unbearable

beatings on account of non-payment of Rs.1 lac. Still, P.W.4 Ananda

and family members of Indubai persuaded her to resume co-habitation

and on 19.5.2001 they received news about her death.

19. The cross-examination of P.W.4 Ananda shows that there is no

reference in his F.I.R. Exh.62 about agreement to pay dowry of

Rs.91,000/-, payment of dowry amount of Rs.66,000/- and outstanding

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amount of Rs.25,000/-. His evidence regarding ill-treatment is very

vague. He admitted that no demand of Rs.1 lac was made directly

from them, but through Indubai. Such demand was made for the first

time on 26.12.2000 and Indubai intimated to them by a letter. He did

not make enquiry about the details of the land to be purchased. His

evidence shows that Indubai's cousin Ranjana was also residing in

Nandapur. They did not make any enquiry with her. Unfortunately,

though he had carried handwritten letter of Indubai, the same was not

shown to him and was not got it proved.

20. P.W.12 Sambharrao is father of deceased Indubai. He has

deposed about dowry demands and ill-treatment as per evidence of

P.W.4 Ananda. His evidence is again vague with regard to allegations

of beating. He deposed that he had made payment of Rs.25,000/- to

the accused after Shimga and before Gudipadwa of 1998. That time,

the accused had assured that they would not ill-treat Indubai, but

again there was demand of Rs.1 lac and ill-treatment on account of

not meeting the demand.

21. He has proved the handwriting of Indubai in two letters and one

chit. One letter is dated 17.4.1999, another is dated 26.12.2000 and

the chit was brought by his son Ananda. These muddemal articles 3,

5 and 6 were shown to him and he identified them, but those were not

exhibited at that time. Subsequently, those are marked as Exhs.97,

98 and 99. In cross-examination, he deposed that at the time of

marriage, one Vijayrao Deshmukh was mediator. Amount of

Rs.66,000/- was paid fifteen days before the marriage. He had not

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received any letter from his daughter Indubai from 1997-98. He

deposed that on 26.4.2001, for the first time he learnt about demand

of dowry of Rs.1 lac. He admitted that the two letters did not disclose

about demand of Rs.1 lac for purchasing a land.

22. With regard to the letters Exh.97, 98 and 99 there is evidence of

handwriting expert Sanjay Hathkar. He had compared these letters

along with notebook, but there is no evidence that the notebook

contained specimen handwriting of Indubai. Neither P.W.4 nor P.W.12

have deposed to prove admitted handwriting of Indubai in the said

notebook. Therefore, the evidence of handwriting expert is of no use.

However, there is categorical evidence of P.W.12 that he had received

two letters sent by post. Letter Exh.97 bears the postal endorsement

dated 17.4.1999. It is addressed to P.W.12 Sambharrao. It shows that

Indubai reported about use of very bad language by her mother-in-law

and lot of harassment and beating to her. The husband was

demanding Rs.1 lac and as she could not bring the money, her

husband, mother-in-law and brother-in-law were assaulting her. Her

brother-in-law was calling her as 'wife'. Father-in-law was also

scolding her and due to ill-treatment her brain was not working and

her father should pay the money immediately and the ill-treatment

was unbearable to her.

23. Letter Exh.98 is also received by P.W.12 Sambharrao. It bears

stamps dated 10.1.2000 and 18.1.2000 (of Kondhur the place of

P.W.12 Sambharrao). In this letter also there is complaint that she

was subjected to heavy ill-treatment. Her brother-in-law did not allow

her to sleep throughout the night and her bedding was torn by him.

Cri.Appeal No.423/2002

Her husband was instigating him to assault her and used to say that

his wife was dead for him. All persons were scolding her and were

saying that she was curse to their family, nobody was supporting her.

She could not conceive how she could reside in such house. She

warned that her maternal relatives should not visit their house. Her

father-in-law was telling her husband to leave her to her maternal

house. She warned that if something would happen to her, her father

should not spare anybody. These letters are sent by post, whereas

letter Exh.99 stands on a different footing, as it is brought by hand

delivery. P.W.4 Ananda has not proved this letter. Therefore,

evidence of P.W.12 that this letter was sent by post to him cannot be

believed. However, as far as postal letters are concerned, those are

relevant as per Section 32 (2) of the Evidence Act. Illustration (g) to

Section 32 reads as follows:

"(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant."

Illustration (c) to Section 21 of the Evidence Act reads as follows:

"(c) A is accused of a crime committed by him at Calcutta.

He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day.

The statement in the date of the letter is admissible, because, if A were dead, it would be admissible under section 32, clause (2)."

Cri.Appeal No.423/2002

Thus, the postal endorsements on the post cards ensure the

communication as those cannot be manipulated and those were

actually written. The handwriting is proved by P.W.12 Sambharrao.

He being father must be aware of her handwriting. These two letters

clearly disclosed that deceased Indubai was subjected to ill-treatment

by all the accused for non-payment of money. There is no specific

reference of amount in one letter but there is reference that the ill-

treatment and beatings was on account of non-payment of dowry.

We, therefore, find that these letters corroborate the evidence of

P.W.4 Ananda and P.W.12 Sambharrao on the point of ill-treatment.

Besides, there is evidence of P.W.9 Bhagwan, P.W.10 Uttam and

P.W.11 Subhash, neighbours who have deposed about payment of

dowry of Rs.25,000/- in their presence. We, therefore, hold that

accused nos.1 to 4 had subjected Indubai to cruelty and, therefore,

they are guilty for the offence punishable under Section 498-A read

with Sec.34 of Indian Penal Code. Learned Advocate Mr Abhay Ostwal

for the appellant relied upon following rulings :

1) State of U.P. Vs. Ram Sajivan and ors., (2010) SCC 529

(Paragraphs 47 to 59)

2) Mohammed Ankoos and ors. Vs. Public Prosecutor,

High Court of A.P. Hyderabad (2010) 1 SCC 94

( Paragraphs 15 and 37 )

3) Ghurey Lal Vs. State of U.P. (2008) 10 SCC 450

( Paragraph 3 and 69 to 73)

Cri.Appeal No.423/2002

4) Tota Singh and anr. Vs. State of Punjab (1987) 2 SCC 529

( Paragraph 6)

5) Sheo Swarup and ors. Vs. Kind Emperor

AIR 1934 (Privy Council 227 (2)

6) Zwinglee Ariel Vs. State of M.P. AIR 1954 SC 15

( Paragraph 9)

7) State of Goa Vs. Sanjay Thakran and anr.

(2007) 3 SCC 755 ( Paragraph 16)

In all these cases, it is laid down that though the appellate Court

has vast powers to reappreciate the entire evidence, the finding

recorded by the trial Judge in case of acquittal should be considered

and when two views are probable, the one in favour of the accused

should be preferred. The finding of the trial Court of acquittal should

not be set aside without compelling reasons. In this case, we find that

the learned trial Judge has not considered the letters written by the

deceased to her father, which are admissible in evidence in view of

postal endorsements thereon and identification of the handwriting by

her father. Those letters are written by the deceased, just within a

short period before her death. If these letters would have been

considered, there was no scope for acquitting the accused of offence

punishable under Section 498-A/34 of Indian Penal Code. Hence, the

finding of the learned trial Judge to the extent of acquittal under

Section 498-A of Indian Penal Code needs to be interfered. In the

result the appeal deserves to be allowed.

Cri.Appeal No.423/2002

24. Accused nos.1 to 4 are held guilty for offence punishable under

Section 498-A read with Sec.34 of the Indian Penal Code and not

guilty under Section 302 read with Sec.34 of Indian Penal Code. They

shall be heard on the point of sentence.

25. Registrar (Judicial) is directed to send intimation to the

concerned Police Station to keep the accused present before this

Court on 16th January 2018, for hearing them on the point of

sentence.

        ( A.M. DHAVALE, J.)                ( T.V. NALAWADE, J.)




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