Shivram Ganpat Gajbe vs State Of Maharashtra Thr.Pso ...
2018 Latest Caselaw 398 Bom

 apeal457.04.J.odt                         1




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

                     CRIMINAL APPEAL NO.457 OF 2004

          Shivram s/o Ganpat Gajbe,
          Aged about 44 years,
          Occ: Business, R/o Kasba
          Hingna, Tah. Hingna,
          District Nagpur.                                  ....... APPELLANT

                                   ...V E R S U S...

          State of Maharashtra,
          through P.S.O. Hingna
          Police Station, Nagpur.                            ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri P.M. Shukla, Advocate for Appellant.
          Shri A.V. Palshikar, APP for Respondent/State.
 -------------------------------------------------------------------------------------------


 CORAM:  ROHIT B. DEO, J. 

 DATE OF RESERVING THE JUDGMENT                                      :      21.12.2017
 DATE OF PRONOUNCING THE JUDGMENT                                    :      15.01.2018




 1]               The appellant is aggrieved by the judgment and order

dated 19.07.2004 passed by the 3rd Adhoc Additional Sessions

Judge, Nagpur in Sessions Trial 725/2001, by and under which,

the appellant (hereinafter referred to as 'the accused') is convicted

for offence punishable under section 498-A of the Indian Penal

Code ('IPC' for short) and is sentenced to suffer rigorous

imprisonment for two years and to payment of fine of Rs.1000/-

and is further convicted for offence punishable under section 306

of the IPC and is sentenced to suffer rigorous imprisonment for

five years and to payment of fine of Rs.2000/-. The co-accused

one Dhanraj Mahadeo Gajbe is however, acquitted.

2] Heard Shri P.M. Shukla, the learned counsel for the

appellant and Shri A.V. Palshikar, the learned Additional Public

Prosecutor for the respondent/State.

3] The case of the prosecution, as is unfolded during the

trial, is thus:-

The accused and the deceased Usha entered into

matrimonial alliance six years prior to the unfortunate incident.

The accused and Usha had two children and one son from the

wedlock. Indubitably, Usha committed suicide on 12.09.2001 by

jumping into a well along with her three children. Usha and her

two children Saurabh aged 5 years and Ku. Pratignya aged 3 years

died and the seven month old daughter miraculously survived.

Initially, accidental death inquiry was registered under section

174 of the Code of Criminal Procedure on the basis of report

Exh.34 lodged by one Sarangdhar Keshavrao Deshmukh.

The complainant Shantabai Gharat (P.W.5) the

mother of the deceased lodged a report on 14.09.2001 at Hingna

Police Station, the gist of which that her daughter Usha was

forced to commit suicide due to the ill-treatment meted out by the

accused inter alia to coerce Usha to fulfill an unlawful demand of

Rs.40,000/- for construction of house. On the basis of the report

Exh.36 offence punishable under section 498-A, 306 read with

section 34 of IPC was registered at the Hingna Police Station.

Investigation ensued and upon completion thereof charge-sheet

was filed in the Court of Judicial Magistrate First Class Court, 10 th

Court, Nagpur, who committed the case to the Sessions Court.

4] The learned Sessions Judge framed charge under

section 498-A, 306 read with section 34 of IPC, the accused

abjured guilt and claimed to be tried in accordance with law.

The trend and tenor of the cross-examination would suggest that

the defence is of total denial.

5] The prosecution examined seven witnesses including

P.W.1 Sunita Mangare, P.W.2 Asha Dhone, P.W.3 Vatsalabai

Sawsakale, P.W.4 Sarangdhar Deshmukh, P.W.5 Shantabai

Gharat, P.W.6 Shamrao Gharat and P.W.7 Haribhau Rajaramji

Parteki. The prosecution is substantially relying on the evidence of

P.W.2 Asha Dhone, P.W.3 Vatsalabai, P.W.5 Shantabai Gharat and

P.W.6 Shamrao Gharat to prove that the accused subjected the

deceased Usha to cruelty within the meaning of explanation (a)

and (b) of section 498-A of IPC. The suicide is irrefutably within

seven years of the marriage, with the result, that if the prosecution

is successful in establishing that the deceased was subjected to

cruelty, this court in its discretion would be entitled to draw

presumption under section 113-A of the Indian Evidence Act that

the suicide had been abetted by the accused. However, unlike

section 113-B, the words employed in section 113-A are 'may

presume' which implies that it is not obligatory or mandatory for

the court to invoke the presumption, and having regard to the

circumstances, the court may refrain from taking the aid of the

presumption.

6] P.W.1 Sunita Mangare was a tenant in the house of

the accused. She has deposed that at 05:30 to 06:00 p.m. on

12.09.2001 the deceased told her that she is going to the hospital

along with her children since one of the children needed medical

treatment. In the cross-examination, it is extracted that the

accused has two shops, one situated in his house and the other in

Kasba locality. The accused used to attend to the shop at Kasba

and used to leave in the morning at 07:00 a.m. and the deceased

used to look after the shop situated in the house. P.W.1 states that

the relations between the deceased Usha and accused were good

and that on the day of the incident or prior to the incident there

was no quarrel between the deceased and accused. P.W.1, in

effect, has supported the defence.

7] P.W.2 Asha Dhone is the elder sister of deceased

Usha. Her deposition is that the accused and the Usha co-habited

well for the initial period of one year of the marital life. She states

that thereafter the accused started construction work of his house

and used to ask the deceased to bring money from her parents

and used to ill-treat her. She states that on the instigation of the

co-accused Dhanraj Mahadeo Gajbe, accused used to beat the

deceased Usha. She states that then she was residing in Nagpur

and three years prior to the recording of the evidence she shifted

residence to Bhusawal. Deceased Usha used to visit her when she

was residing in Nagpur and used to disclose the ill-treatment, is

the deposition. She states that once her father gave Rs.10,000/- to

the accused. She states that five months prior to the incident she

visited the deceased and saw the accused quarreling with and

abusing the deceased.

In the cross-examination, she denies that there was

blood relationship between her family and that of the accused and

that the accused did not wish to marry deceased Usha. She admits

that marriage was performed with the consent of both the families

and that there was no dispute at the time of marriage. She admits

that the accused has two shops although she denies the suggestion

that her deceased sister was looking after the shop situated in the

house. In the cross-examination, the statement that after one year

the accused started construction of his house and used to insist

that the deceased should bring money from her parents is shown

as an omission. The statement that at the instigation of the

co-accused Dhanraj Mahadeo Gajbe the accused used to abuse and

beat the deceased is again an omission. The statement that five

months prior to the date of the incident P.W.2 visited the house of

the deceased and saw the accused quarreling with and abusing

the deceased is again a proved omission. She admits that her sister

was visiting the parental house and that the family of her sister

was also on visiting terms with the accused. She denies the

suggestion that the deceased Usha was hot tempered and used to

pick up quarrel on trivial issue.

8] P.W.3 Vatsalabai, whose statement is recorded

belatedly on 10.10.2001, has deposed that the deceased Usha

used to disclose to her that the accused used to demand money

and used to beat her. She states that at the time of Rakhi festival

prior to her death it was disclosed by the deceased Usha that

accused demanded Rs.40,000/- for construction of house. P.W.3

deposed that the father of deceased Usha borrowed Rs.4000/-

from her and after arranging Rs.10,000 he gave Rs.14,000/- to the

accused. She states that one and half month thereafter the

incident occurred.

9] In the cross-examination, it is brought on record that

the statement that the deceased disclosed that the accused

demanded Rs.40,000/- for construction of house is an omission.

The statement that the father of the deceased gave Rs.14,000/- to

the accused after borrowing Rs.4000/- from P.W.3, is again an

omission.

10] P.W.5 Shantabai, the mother of the deceased is the

complainant. She has deposed that after marriage her daughter

used to come to her parental house and used to disclose that the

accused was insisting to bring Rs.40,000/- from her parents for

construction of house. She has deposed that when she visited the

house of the accused for the naming ceremony of the first child,

accused assaulted her daughter by stick and gave a kick blow on a

trivial issue of the quantity of mutton cooked for the guests falling

short. She has deposed that eight days after the said incident her

daughter came to her parental house asking for money and since

her father did not have the money she was sent back. She states

that thereafter her daughter came with her two sons, resided at

her house for 2 to 3 days and was given Rs.10,000/- by her father.

She states that her deceased daughter used to narrate that she will

commit suicide due to the ill-treatment meted out by the accused.

In the cross-examination, P.W.5 admits that there was no demand

of money or article made by the accused at the time of marriage.

She admits that the accused had two shops although she denies

the suggestion that her deceased daughter was looking after the

shop situated at her house. She admits that when she visited the

house of the accused she was treated well. She denies the

suggestion that her daughter was hot tempered and was treated

for some mental issues. She denies the suggestion that her

deceased daughter did not behave properly with the accused.

The statement that in the marriage the accused demanded money

and there was a quarrel on the issue is an omission. The statement

that after the marriage the deceased used to come to her house

and used to disclose the ill-treatment, is again an omission.

The incident of assault with stick and kick blow on the issue of the

quantity of non-veg food falling short, is again an omission.

The statement that her deceased daughter was given Rs.10,000/-

is again an omission. However, it must be borne in mind that

some omissions are only qua the statement recorded under section

161 of the Criminal Procedure Code. In the First Information

Report dated 14.09.1991, the incident of the quantity of non-veg

food falling short and the assault with stick is disclosed.

The demand of Rs.40,000/- for construction of house is also

disclosed, although in the First Information Report it is stated that

the disclosure of the demand of Rs.40,000/- was made by

deceased Usha when she along with her two children visited her

parental house. It is also stated in the F.I.R. that her husband took

Rs.10,000/- to give to the accused and reached Usha to her

matrimonial house.

11] P.W.6 Shamrao Gharat, is the father of the deceased

Usha who has deposed that there was a quarrel on the issue of

dowry in the marriage. He states that Usha used to come after 2 -

3 months and used to disclose that the accused used to demand

dowry and on her failure to bring the dowry used to beat her.

P.W.6 has deposed that accused demanded Rs.40,000/- for

construction of house, he was having only Rs.10,000/- and

therefore, after borrowing Rs.4000/- from neighbor Vatsalabai

gave accused Rs.14,000/-. He has referred to the incident of the

quantity of non-veg preparation falling short.

In the cross-examination, P.W.6 admits that there was

no demand of dowry in the marriage. P.W.6 admits that deceased

Usha visited her parental house at least on ten occasions till her

death. The statement that in the marriage itself there was a

quarrel in the issue of dowry, is an omission. The statement that

the deceased Usha disclosed that she was beaten by the accused

on the issue of dowry, is again an omission. The statement that he

borrowed Rs.4000/- from Vatsalabai and gave Rs.14,000/- to the

accused, is an omission. The incident of the non-veg preparation

falling short, is an omission. The statement that whenever the

family members used to visit accused he was not treating them

well, as an omission. The most vital admission extracted reads

thus:

It is true that the accused No. 1 did not demand money for construction of house.

12] P.W.7 is the Investigating Officer. In the

cross-examination, it is proved that the statement of P.W.2 Asha

Dhone that accused was used to ask the deceased to bring money

for construction of house is proved as omission. The omission in

the evidence of P.W.3 Vatsalabai that at the time of Rakhi festival

the deceased disclosed the demand of Rs.40,000/- for

construction of house is duly proved to the limited extent that the

disclosure was made on the occasion of Rakhi festival.

The statement in the evidence of P.W.3 Vatsalabai that after

borrowing Rs.4000/- from her P.W.6 paid Rs.14,000/- to the

accused is proved as omission. The statement in the evidence of

P.W.5 Shantabai that the accused demanded money in the

marriage and quarrel is proved to be an omission. The statement

in the evidence of P.W.6 Shamrao Gharat that accused quarreled

in the marriage demanding dowry, is proved to be an omission.

The statement that the marital life of deceased was not happy and

that the accused used to beat her on the issue of dowry is proved

to be an omission. The statement in the evidence of P.W.6 that he

arranged Rs.4000/- from P.W. 3 Vatsalabai is proved to be an

omission.

13] The incident is indeed unfortunate, disturbing and

heart rending. The deceased Usha not only ended her own life,

but intended to put an untimely end to the lives of her three

children. Two children died and the seven month old baby

survived. That the deceased Usha, chose to jump in the well along

with her three children per se leads to a reasonable inference that

Usha was not an emotionally well adjusted personality, is the

submission of the learned counsel for the accused. Why would a

mother commit suicide and seek to kill her innocent children, is

the question posed by the learned counsel, who further submits

that the question must be answered in the backdrop of the fact

that the nature and extent of cruelty, even if the entire evidence is

taken at face value, would not have driven a normal and well

adjusted woman to take such a drastic and horrendous step.

14] The question posed by the learned counsel for the

accused defies an answer with any degree of certainty or

conviction. The human mind is too complex and the thought

process too inscrutable for this court to venture an answer. It is

asserted since centuries that the thoughts of man are not triable,

for the Devil himself knows not the thoughts of man. However, I

do agree with the submission of the learned counsel for the

accused, that the evidence must be subjected to close scrutiny to

ascertain whether cruelty is conclusively established and if yes, the

statutory presumption under section 113-A needs to be taken aid

of.

15] P.W.1 Sunita Mangare, who is the tenant of the

accused has asserted that the relations between Usha and the

accused were good and that there was no quarrel between the two

on the day of the incident or prior thereto.

16] The substratum of the prosecution case is that the

deceased Usha was ill-treated to coerce her or her family to satisfy

an unlawful demand of Rs.40,000/- made by the accused when he

undertook the construction of the house. The evidence of the

prosecution witnesses on the demand for Rs.40,000/- is marred by

serious inter se inconsistencies. The prosecution witnesses are

speaking in different voices as to when the demand was made.

I have noted earlier, that P.W.6 Shamrao Gharat, who is the father

of the deceased has admitted in the cross-examination that no

such demand was made by the accused. In so far as P.W.2 Asha

Dhone is concerned, all that is stated is that accused started

construction work of his house and used to ask the deceased to

bring money from her parents. P.W.2 does not speak of demand

for Rs.40,000/- nor does she specify the year or the month in

which the demand was allegedly made. However, she says that

the accused started construction work after one year of the

marriage. This evidence is also a proved omission. P.W.3

Vatsalabai says that it was at the time of Rakhi festival prior to her

death that the deceased disclosed that the accused was

demanding Rs.40,000/- for construction of the house. She says

that the father of the deceased borrowed Rs.4000/- from her and

after arranging further amount of Rs.10,000/-, paid the accused

Rs.14,000/-, one and half month prior to the death of the

deceased. The disclosure that the accused was demanding

Rs.40,000/-, therefore, was one and half month prior to the death,

according to P.W.3 Vatsalabai. P.W.5 Shantabai says that the

demand for Rs.40,000/- was after the marriage and her evidence

would suggest that the said demand for Rs.40,000/- was made

prior to the first delivery. In the First Information Report, P.W.5

Shantabai states that the demand for Rs.40,000/- was made after

the delivery of the second child. P.W.6 in the

examination-in-chief, does not come forth with a time line but

then states that he borrowed Rs.4000/- from P.W.3 Vatsalabai and

gave Rs.14,000/- to accused which would mean that P.W.6 the

demand was made few months before the death. However, in

view of the admission in the cross-examination that the accused

did not demand money for construction of house, the assertion in

the examination-in-chief must be taken with a pinch of salt.

If the evidence of the prosecution witnesses is

minutely scrutinized, the demand of Rs.40,000/- for construction

of house appears to be highly improbable. The accused concededly

owns two shops and the prosecution witnesses broadly agree that

no demand for dowry was made in the marriage. The time line

given by the prosecution witnesses ranges from few months after

the marriage to few months before the death, which is a time line

ranging over a span of nearly six years. None of the prosecution

witnesses has given any specific year much less month or day as

the time of the demand of Rs.40,000/- for construction of house.

The prosecution version that the deceased was ill-treated since she

did not fulfill the demand of Rs.40,000/- for construction of

house, is not confidence inspiring.

17] P.W.5 Shantabai, the mother of the deceased does

speak with conviction about an incident which occurred when she

visited the house of the accused on the occasion of the naming

ceremony of the first born. She has deposed that accused

assaulted her daughter by stick and gave a kick blow since the

quantity of the non-veg preparation fell short. Be it noted, that

this incident has occurred, even according to P.W.5 Shantabai

more than four and half years prior to the death. It is true that

even this solitary misdemeanor is deplorable, but then it would be

difficult to hold that this incident, which could be a matrimonial

misconduct, is sufficient to establish cruelty within the meaning of

sub-section (a) of section 498-A of IPC.

18] The evidence of the prosecution on the ill-treatment

meted out to coerce the deceased to bring Rs.40,000/- from her

parents, as I have already held, is not confidence inspiring.

The evidence on the payment of Rs.14,000/- by P.W.6 to the

accused cannot be considered in isolation. According to P.W.5 and

P.W.6 the said amount was paid to accused since they did not

have Rs.40,000/- which was demanded by the accused for the

construction of the house. The version of the prosecution

witnesses is inconsistent on the amount paid to the accused.

While P.W3 asserts that Rs.14,000/- was paid to the accused,

P.W.2 and P.W.5 say that an amount of Rs.10,000/- was paid to

the accused. P.W.6 states that he paid Rs.14,000/- to the accused.

However, the evidence of P.W.6 that he borrowed Rs.4000/- from

P.W.3 Vatsalabai and gave Rs.14,000/- to the accused is a proved

omission. In any event, the admission of P.W.6 Shamrao in the

cross-examination, which is reproduced supra, renders the version

of the prosecution, that since the accused demanded Rs.40,000/-

for construction of house, which amount P.W.6 did not have,

Rs.14,000/- was paid to the accused, is rendered suspect.

19] The evidence on record is not sufficient and cogent

enough to hold that the guilt of the accused is proved beyond

reasonable doubt.

20] The judgment and order impugned is set aside and

the accused is acquitted of the offence punishable under section

498-A, 306 read with section 34 of IPC.

21] The bail bond of the accused shall stand discharged,

and fine paid by the accused, if any, shall be refunded.

  22]              The appeal is allowed.




                                                     JUDGE



NSN