Bombay High Court
State Of Maha vs Vijay Kolhe And Ors on 11 March, 2021
Bench: R.V. Ghuge, B. U. Debadwar
CrApl-293-03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 293 OF 2003
The State of Maharashtra
Through Public Prosecutor
High Court Bench at
Aurangabad. ... Appellant
(Ori. Complainant)
Vs.
1. Vijay Dattatraya Kolhe
Age : 30 yrs., Occu. Labourer
2. Dattatraya Maruti Kolhe
Age : 58 yrs., Occu. Pensioner.
3. Jankabai w/o Dattatraya Kolhe
Age 48 yrs., Occu. Household work
(Abated since died)
4. Prakash Baburao Pawar,
Age : 39 yrs., Occu. Service
5. Sharda w/o Prakash Pawar
Age : 30 yrs., Occu. Household
All r/o Joshiwadi, Tq. Shirur, Dist. Pune ... Respondents
(Ori. Accused)
...
APP for Appellant - State : Shri R. V. Dasalkar
Advocate for Respondents No. 1, 2, 4 & 5 : Shri Amol Joshi
(Appointed)
...
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ.
RESERVED ON : 15TH FEBRUARY, 2021
PRONOUNCED ON : 11TH MARCH, 2021
JUDGMENT [PER: B. U. DEBADWAR, J.]:
1. This appeal has been directed under Section 378(1) of
Code of Criminal Procedure, 1973 (hereinafter referred to as
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"Cr.P.C."), against the judgment and order dated 26-12-2002
passed by the learned IInd Ad-hoc Additional Sessions Judge,
Ahmednagar in Sessions Case No.230 of 1999, whereby acquitted
all the five accused for the offences punishable under Sections
498-A, 304-B and 306 read with Section 34 of Indian Penal Code
(hereinafter referred to as "I.P.C.")
2. Facts giving rise to present appeal in nutshell are as
under :
a) Respondent No.2 Dattatraya Maruti Kolhe and
respondent No.3 Jankabai w/o Dattatraya Kolhe are the husband
and wife inter se. Respondent No.1 Vijay Dattatraya Kolhe and
Respondent No.5 Sharda w/o Prakash Pawar are their son and
daughter, respectively. Respondent No.4 Prakash Baburao Pawar is
the husband of respondent No.5 Sharda. All the respondents are
residents of Joshiwadi, Tq. Shirur, Dist. Pune.
b) Deceased Jyoti @ Kavita was the daughter of Haribhau
Laxman Karkhile and Shakuntala Haribhau Karkhile, resident of
Plot No.16, Shahu Nagar, Kedgaon, Dist. Ahmednagar. Karkhile
family and Kolhe family originally hail from Parner Taluka, District
Ahmednagar. The native place of Haribhau Karkhile was village
Ralegan Therpal, whereas native place of respondent No.2
Dattatraya Kolhe was village Loni Haveli.
c) With the intervention of close relatives of both the
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families, marriage of deceased Jyoti with respondent No.1 Vijay was
settled. As per the terms of settlement, marriage was to be
solemnized on 01-02-1998 at Kedgaon, which would be convenient
for both the families and their relatives. At the time of settlement
of marriage, respondents had expressed their desire that marriage
should be solemnized in a grand manner. Respondents did not
demand any gift or dowry. Haribhau and his family members
agreed for performance of marriage of deceased Jyoti and accused
No.1 Vijay at Kedgaon in the best of possible manner.
d) Upon settlement of marriage and fixing the date and
venue, Haribhau got printed and distributed wedding invitation
cards amongst relatives and well wishers.
e) Four to five days prior to 01-02-1998, respondent No.1
Vijay and respondent No.2 Dattatraya reached to Kedgaon, at the
house of Haribhau and said him that unless dowry of Rs.75,000/-
and ornaments of five tolas gold is given, the marriage of Jyoti
would not be performed with Vijay. Besides, they told Haribhau
that marriage should be performed at Ramling Temple of Shirur,
Pune and not at Kedgaon. After consulting with wife Shakuntala,
Haribhau accepted aforesaid conditions, put forth by respondent
No.1 Vijay and respondent No.2 Dattatraya. However, he expressed
his ability to pay dowry of Rs.50,000/- out of Rs.75,000/- and gold
ornaments of five tolas, at the time of marriage and sought
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permission to pay balance dowry amount of Rs.25,000/- after
marriage, in due course. Respondent No.1 Vijay and respondent
No.2 Dattatraya both agreed for the same.
f) Accordingly, on 01-02-1998, marriage of deceased Jyoti
was solemnized with respondent No.1 Vijay at Ramling Temple,
Shirur as per Hindu rites and customs prevailing in their
community.
g) After marriage deceased Jyoti went to her matrimonial
house situated at Joshiwadi, Shirur and started residing and
cohabiting with husband Vijay there, in joint family of all accused.
h) Matrimonial life of deceased Jyoti was normal for about
10 months after marriage. Thereafter, husband and father-in-law
started insisting her for bringing balance dowry amount of
Rs.25,000/- and subjecting her to cruelty for that, in the form of
beating and starving her. Respondent No.4 Prakash and respondent
No.5 Sharda, residing in their neighbourhood, also started taunting
Jyoti on account of remainder dowry amount of Rs.25,000/-.
Deceased Jyoti used to disclose about harassment and ill treatment
meted out by husband and in-laws on account of remainder dowry
amount of Rs.25,000/- to her parents and brothers, whenever she
visited her parental house.
i) Meanwhile, Jyoti became pregnant and gave birth to a
girl child Kranti. Three to four months prior to the delivery, Jyoti
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had been to her parental house. During her stay at parental house
before and after delivery, Jyoti reminded his father Haribhau for
arranging remainder dowry amount of Rs.25,000/-, for which her
husband and in-laws were harassing and ill treating her. Jyoti was
afraid of returning back to matrimonial house after delivery, without
the dowry amount of Rs.25,000/-. However, after getting
convinced and assured by Haribhau that soon he would arrange the
money and pay Rs.25,000/- to her husband and in-laws, she
agreed to go to her matrimonial house with the new born girl child
Kranti. By accompanying Jyoti to her matrimonial house at
Joshiwadi, Shirur, Haribhau assured accused regarding payment of
remainder dowry amount of Rs.25,000/- soon, and requested them
not to harass and ill treat Jyoti for that reason.
j) However, Haribhau could not arrange the money,
despite due efforts taken for the same. Consequently, accused
went on harassing and ill treating Jyoti on account of non payment
of remainder dowry amount of Rs.25,000/-. Jyoti disclosed the
same to her parents and brothers on her visiting to parental house
on the occasion of Rakhi Poornima.
k) On 06-09-1999, Babasaheb Karkhile and Arun Karkhile
came to Kedgaon and informed Haribhau and Shakuntala, parents
of Jyoti, that accused No.2 Dattatraya informed them, by coming to
their village Ralegan Therpal, that Jyoti along with daughter Kranti
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is missing. On receiving the said information, Haribhau rushed to
the house of accused situated at Joshiwadi, Shirur and inquired with
them about Jyoti and Kranti and conducted search for them.
Accused No.1 Vijay did not give proper response when PW7 Sudam
Dagadu Fatangare went to his flat at Pune for knowing whether
Jyoti had reached there.
l) Despite due search, Jyoti and her daughter Kranti could
not be traced out. Therefore, on 08-09-1999, Haribhau approached
Shirur Police Station and lodged the missing report. When, in spite
of lodging the missing report, Jyoti and her daughter Kranti were
not found, on 13-09-1999 Haribhau approached the Shirur Police
Station and submitted an application expressing doubt about
accused Nos. 1 to 3.
m) Meanwhile, on 15-09-1999, Balu Santaji Barde (PW6),
fisherman noticed two dead bodies in decomposed condition under
the shrubs in the Ghod river. Upon receiving such information,
Police Officers of Shirur Police Station proceeded to the said place,
and made arrangements for fishing out both the dead bodies from
the bed of the river with the help of PW6 Balu Barde. Accordingly,
inquest panchanama of the said dead bodies were drawn, then both
the dead bodies were sent to the Rural Hospital, Shirur for
postmortem with requisition. Thereafter, spot panchanama of the
place where dead bodies were found was drawn. After postmortem,
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dead bodies were given in the custody of Haribhau. On 16-09-1999
funeral and last rituals were performed on Jyoti and her daughter
Kranti at Shirur.
n) On 17-09-1999 Haribhau lodged the report narrating
over all conduct of the accused to Shirur Police Station. Treating
that report as FIR, S.H.O. of Shirur Police Station registered Crime
No. I-213/1999 against all the accused for the offences punishable
under Sections 498-A, 304-B and 306 read with Section 34 of I.P.C.
o) Investigation of the said crime was carried out by PW11
Kisan Bhagwan Gawali, Police Inspector. During the course of
investigation, papers of missing case and A.D. were collected.
Statements of material witnesses were recorded. Viscera,
preserved at the time of postmortem, was forwarded to the
Forensic Science Laboratory. All the accused were arrested and
after completion of investigation they were charge-sheeted for the
aforesaid offences.
p) After committal of the case, on 15-12-2001, learned II nd
Ad-hoc Additional Sessions Judge, Ahmednagar framed charge vide
Exhibit-21, conducted trial when accused pleaded not guilty, and
after trial, acquitted all the accused for the offences punishable
under Sections 498-A, 304-B and 306 read with Section 34 of I.P.C.,
vide Section 235(1) of Cr.P.C., holding that prosecution has failed to
prove demand of dowry and harassment of Jyoti by the accused for
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non-fulfillment of demand of remainder dowry amount. Being
aggrieved by the impugned judgment and order of acquittal, after
seeking leave, State has preferred the present appeal.
q) During the pendency of this criminal appeal, respondent
No.3 died, therefore, appeal was abated to her extent.
3. Heard Mr. R. V. Dasalkar, learned APP for State and Mr.
Amol Joshi, learned advocate for respondents No. 1, 2, 4 and 5.
4. Mr. Dasalkar, learned APP, wile taking us through the
oral and documentary evidence adduced by the prosecution,
vehemently argued that Jyoti @ Kavita, the unfortunate young girl,
died of unnatural death along with her tender aged daughter Kranti,
only after one and a half year of her marriage solemnized with
accused No.1 Vijay. It is evident from record that she was
subjected to cruelty on account of remainder dowry amount of
Rs.25,000/- by the accused persons, who happens to be her
husband and in-laws i.e. father-in-law, mother-in-law, sister-in-law
and husband of sister-in-law. Since the marriage, Jyoti used to
reside at her matrimonial house situated at Joshiwadi, Shirur along
with accused Nos. 1 to 3. The house of accused Nos. 4 and 5 was
also situated in the same locality. Jyoti along with daughter Kranti
was missing from 06-09-1999, and on 15-09-1999, their dead
bodies were found floating in the Ghod river within the limits of
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village Gavhanewadi, Tq. Shrigonda, Dist. Ahmednagar, near the
bridge on Pune Highway road.
5. Mr. Dasalkar, learned APP further argued that the
Inquest panchanamas and postmortem reports make it clear that
Jyoti had committed suicide by jumping into the Ghod river, after
tying her tender aged daughter Kranti on her chest by string.
6. It is pertinent to note that, after knowing about missing
of Jyoti along with daughter Kranti, instead of informing the same
directly to her father Haribhau, accused No.2 Dattatraya informed
the same to Babasaheb Karkhile and Arun Karkhile (nephews of
Haribhau), residents of village Ralegan Therpal, and in turn, they
informed the same to Haribhau, father of Jyoti, by approaching at
his house at Kedgaon. After knowing about the missing of daughter
Jyoti along with grand daughter Kranti, Haribhau rushed to Shirur,
met accused Nos. 2 and 3, and then conducted a search for
daughter Jyoti and grand daughter Kranti with his relatives
including Babasaheb and Arun.
7. Mr. Dasalkar, learned APP also agreed that, since the
efforts to trace out Jyoti and Kranti failed, on 08-09-1999 Haribhau
approached Shirur Police Station and lodged missing report. When
Jyoti and Kranti were not found, alive or dead, in spite of lodging
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the missing report, Haribhau once again approached the Shirur
Police Station on 13-09-1999, and lodged the report raising
suspicion against the accused.
8. According to Mr. Dasalkar, learned APP, on 17-09-1999,
after performing last rituals on the dead bodies of Jyoti and Kranti,
Haribhau approached to Shrigonda Police Station and lodged the
FIR Exhibit-72 against accused. Haribhau died after submission of
charge-sheet and before the commencement of trial, therefore, the
FIR Exhibit-72 came to be proved in the evidence of PW3 Mahadeo
Pathare, Police Head Constable, who recorded the same as per the
version of Haribhau. Ocular and documentary evidence on record
proves beyond doubt that only after one and a half year of marriage
with accused No.1 Vijay, Jyoti along with tender aged daughter
Kranti committed suicide after getting frustrated due to cruelty
meted out by accused, on account of non-fulfillment of remainder
dowry of Rs.25,000/-.
9. It is also submitted by Mr. Dasalkar, learned APP, that
the ocular evidence of PW2 Deepak Karkhile and PW5 Shakuntala
Karkhile, who happens to be the real brother and mother of Jyoti,
respectively, unequivocally established not only the demand of
dowry but also harassment meted out by the accused for fulfillment
of the same. They both have deposed in one voice that accused
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had demanded dowry of Rs.75,000/- and ornaments of five tolas
gold, out of which Rs.50,000/- and ornaments of five tolas gold
were given by them to accused at the time of marriage of Jyoti with
accused No.1 Vijay. Accused persons, only after five months of
marriage, started harassing Jyoti by way of abusing, taunting etc.,
so as to compel Haribhau to pay remainder dowry of Rs.25,000/-.
The evidence of PW2 Deepak and PW5 Shakuntala is consistent on
the material aspects of dowry demand and ill treatment meted out
by the accused persons to Jyoti for fulfillment of the same. Their
ocular evidence gets full support from the FIR Exhibit-72 lodged by
Haribhau.
10. According to Mr. Dasalkar, learned APP, there is no
reason to discard the evidence on record about suicidal death of
Jyoti along with her tender aged daughter Kranti and cruelty meted
out to her by the accused for non-fulfillment of demand of
remainder dowry of Rs.25,000/- and the nexus between the two.
The evidence of PW7 Sudam Dagadu Fatangare throws light on the
conduct of the accused persons. From his evidence, it is clear
enough that before commencement of the trial, accused No.1 Vijay
approached the mother and brother of Jyoti through Sudam, and
offered Rs.3 to 4 lakhs to them for settlement.
11. Lastly, Mr. Dasalkar, learned APP submitted that, the
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learned IInd Ad-hoc Additional Sessions Judge, Ahmednagar failed
to appreciate the evidence on record in proper perspective, and by
giving undue importance to minor omissions and contradictions,
discarded material evidence of PW2 Deepak and PW5 Shakuntala.
Besides, learned IInd Ad-hoc Additional Sessions Judge failed in
considering provisions of Sections 113-A and 113-B of the Evidence
Act and consequently acquitted all the five accused. Therefore,
appeal deserves to be allowed.
12. Per contra Mr. Joshi, learned advocate, vehemently
argued that Jyoti, an educated young woman, did not commit
suicide with her tender aged daughter Kranti. Upon close scrutiny
of the evidence on record, it can be gathered very well that on
06-09-1999, Monday, at about 11:00 a.m. Jyoti along with her
tender aged daughter Kranti left the matrimonial house situated at
Joshiwadi, Shirur, by applying lock to the door of the house, as
nobody from the family members was present in the house, and
had gone to the temple of God Shiva situated on hill side, for
performing Pooja and Darshan. While going upstairs, accidentally
she fell into the river and died due to drowning along with daughter
Kranti. According to Mr. Joshi, evidence adduced by the prosecution
is not at all sufficient to establish that Jyoti died of suicidal death,
but it gives scope to infer that Jyoti died of accidental death.
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Autopsy surgeon has not denied the possibility of accidental death
of Jyoti by falling into the river. Therefore, it cannot be said that
prosecution has proved the nature of death of Jyoti as suicidal.
13. Mr. Joshi, further argued that matrimonial life of Jyoti
was happy and peaceful. Though her matrimonial house was
situated at Joshiwadi, Shirur, she used to reside with her husband
accused No.1 Vijay at Pune. Vijay was a press reporter. His
headquarter was at Pune. He used to reside at Pune along with
wife Jyoti. Since, elections of Lokasabha and Vidhan Parishad, 1999
were fast approaching, he had sent Jyoti and Kranti to Shirur at the
house of his parents, so that he would be able to stay away from
house for covering the news by moving place to place without any
botheration. Soon after knowing that Jyoti was missing, he rushed
to Shirur. Along with parents and relatives, he tried his level best
to trace out wife Jyoti and daughter Kranti. There was no reason for
the accused to harass or ill treat Jyoti. After dead bodies of Jyoti
and Kranti were found floating in Ghod river, parents and brothers
of Jyoti were annoyed very much, and out of that annoyance,
brother Sandip along with his friends committed attack not only on
their house but also burnt household articles and motorcycle of
accused, which was parked outside the house. The officials of
Shirur Police Station, suo motu took the cognizance of the said
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incident and lodged FIR against Sandip and others on 16-09-1999.
On the next day of lodging the said FIR, as a counter blast,
Haribhau, father of Jyoti, lodged false and afterthought FIR against
accused.
14. Mr. Joshi further argued that the evidence of two
material witnesses, viz PW2 Deepak and PW5 Shakuntala, is not at
all worthy of credence, as it is full of material omissions. All those
omissions are duly proved in the evidence of I.O. PW11 Kisan
Gawali. Since, the evidence on the aspect of demand of dowry and
harassment of Jyoti by accused for fulfillment of remainder dowry
becomes doubtful, accused cannot be convicted either for offences
under Section 498-A or for Section 304-B of I.P.C., by invoking the
presumptions contemplated in Section 113-A and 113-B of Evidence
Act.
15. Mr. Joshi has also strenuously submitted that accused
No.5 Sharda is the married sister of accused No.1 Vijay and
accused No.4 Prakash is the husband of accused No.5 Sharda.
Accused No.4 Prakash was in service of Forest Department. In
relevant period, he was posted at Madhegaon, Tq. Shrigonda.
Though accused Nos. 4 and 5 are permanent residents of Joshiwadi,
Shirur, they used to reside at Madhegaon, Tq. Shrigonda. Accused
Nos. 4 and 5 have adduced sufficient documentary evidence on this
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aspect during the course of their statements recorded under
Section 313(1)(b) of Cr.P.C. They both had no reason to harass or
ill treat Jyoti. Knowing well all these aspects, along with other
accused, they too have been falsely implicated in the crime.
16. According to Mr. Joshi, after having considered the
totality of evidence, including the fact that since marriage Jyoti
used to reside at Pune with her husband Vijay and not at Shirur
along with husband and parents-in-law, husband Vijay was
searching a suitable job for wife Jyoti, as she was qualified young
woman, there was no matrimonial discord between husband and
wife, lodging the FIR by Haribhau after police registered crime
against his son and other persons for serious offence of destruction
of property by fire, accused Nos. 4 and 5 having no concern with
the affairs of accused Nos. 1 to 3, and the fact that Jyoti neither
wrote letter to her father or brother, or lodged report of making
complaint of any kind against accused after marriage till her death,
learned IInd Ad-hoc Additional Sessions Judge, Ahmednagar rightly
acquitted the accused persons. Therefore, Mr. Joshi urged for
dismissal of appeal.
17. In the light of aforesaid submissions made at bar by the
learned advocates representing both the sides, we have carefully
gone through the record and proceedings. Before turning to the
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core issues, we would like to note down admitted facts and they are
as follows :
i) Accused Nos. 1 and 5, Vijay and Sharda are son and daughter
of accused Nos. 2 and 3, Dattatraya and Jankabai, respectively,
whereas accused No.4 Prakash is the husband of accused No.5
Sharda.
ii) Deceased Jyoti was the daughter of Haribhau Laxman
Karkhile and Shakuntala Haribhau Karkhile, residents of Shahu
Nagar, Kedgaon.
iii) Jyoti's marriage with accused No.1 Vijay was solemnized on
01-02-1998 at Ramling temple, Shirur, as per Hindu rites and
customs prevailing in their community.
iv) Kranti was the daughter of Jyoti and accused No.1 Vijay.
v) Birth of Kranti took place in December, 1998.
vi) Jyoti along with daughter Kranti found missing on
06-09-1999.
vii) On 08-09-1999, Haribhau, father of Jyoti, lodged missing
report at Shirur Police Station.
viii) On 13-09-1999, Haribhau submitted application to the Shirur
Police Station, raising doubt against the accused.
ix) Dead bodies of Jyoti and Kranti found floating in Ghod river,
within the jurisdiction of Shrigonda Police Station, District
Ahmednagar.
x) On 15-09-1999, at about 02:25 p.m. soon after fishing out
dead bodies of Jyoti and Kranti from the bed of Ghod river, A.D.
No.0/1999 under Section 174 of Cr.P.C. was registered at Shrigonda
Police Station.
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xi) During the course of inquiry of A.D., inquest panchanama of
dead bodies of Jyoti and Kranti were drawn.
xii) On 17-09-1999 at about 06:30 p.m. Haribhau lodged FIR
Exhibit-72, on the basis of which Crime No. I-213/1999 under
Section 498-A, 304-B read with Section 34 of I.P.C. was registered
against accused at Shrigonda Police Station.
xiii) Haribhau Karkhile died before commencement of trial.
18. The crux of the matter lies in the following issues :-
i) Whether Jyoti committed suicide, along with tender aged
daughter Kranti, by drowning into Ghod river;
ii) Whether, soon before the death, Jyoti was subjected to
cruelty or harassment by the accused in connection with demand of
dowry ;
OR
iii) Whether, by their willful conduct, accused had driven Jyoti to
commit suicide along with daughter Kranti.
19. To prove guilt of the accused, prosecution has examined
as many as 11 witnesses, out of which PW2 Deepak, PW5
Shakuntala, PW7 Sudam, PW10 Dr. Ravindra Sonar, Autopsy
Surgeon and PW11 Kisan Gawali, Investigating Officer are the
material witnesses.
20. According to the prosecution, Jyoti, along with Kranti
has committed suicide, whereas according to the accused, Jyoti
along with Kranti died of accidental death. To resolve this
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controversy about the nature of death of Jyoti, it would be
necessary to go through the inquest panchanama, postmortem
report and ocular evidence of PW1 Meera Parande, PW4 Janku
Vidhate, PW8 Sakharam Abaji Dalvi, PW10 Dr. Ravindra Sonar,
Autopsy Surgeon, PW11 Kisan Gawali, Investigating Officers.
21. Inquest panchanamas at Exhibit- 43 and 74, proved in
the evidence of PW1 Meera Parande and PW4 Janku Vidhate,
reveals that on 15-09-1999 dead bodies of Jyoti and Kranti were
found floating in the bed of Ghod river. Dead body of Kranti was
found tied on the chest of Jyoti, by a string as well as pallu of the
saree. After separating them, most of the parts of the dead bodies
were found eaten by marine life. Skin from the entire body found
almost loosened. However, both the dead bodies were identifiable.
22. It has come on record though cross examination of PW1
Meera that Jyoti was her niece. Merely for the reason that PW1
Meera was closely related with Jyoti from her parental side, her
evidence as to the inquest panchanama Exhibit-43, cannot be
discarded, when nothing is brought on record through her cross
examination indicating that she was not present when inquest
panchanama Exhibit-43 was drawn and she signed the same
thereafter.
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23. PW10 Dr. Sonar, vide his deposition at Exhibit-100,
deposed that on 16-09-1999, initially he along with Senior Medical
Officer Dr. Reddy conducted postmortem on the dead body of
deceased Jyoti and then Dr. Reddy alone conducted postmortem on
the dead body of Kranti. He identified his signature and the
signature of Dr. Reddy, appearing on the postmortem report of Jyoti
at Exhibit-101, and also the signature of Dr. Reddy appearing on
the postmortem report of Kranti at Exhibit-102. Besides, he has
identified his signature on Death Certificate of Jyoti at Exhibit-40
and Death Certificate of Kranti at Exhibit-41. According to him, the
probable cause of the death of Jyoti and Kranti, both, was asphyxia
secondary due to drowning.
24. It is evident from record that after postmortem, opinion
as to the probable cause of death of Jyoti was reserved till receipt
of C.A. report of viscera and subsequently after receiving the C.A.
report, PW10 Dr. Sonar gave his aforesaid opinion as to the cause
of death of Jyoti and Kranti vide Death Certificates at
Exhibit- 40 and 41.
25. Through the cross examination of PW10 Dr. Sonar, it has
come on record that dead body of Jyoti was completely
decomposed and some of the parts of the dead bodies were bitten
by marine life. In further cross examination he has admitted that
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asphyxia secondary due to drowning is possible if a person falls in
the water accidentally.
26. According to accused Jyoti was a religious woman. On
06-09-1999 she had been to temple of Lord Shiva for offering
Pooja. Through the cross examination of PW11 Kisan Gawali, I.O., it
has come on record that on 06-09-1999, deceased Jyoti had left the
house for Darshana of Lord Shiva by leaving key with Bharati
Awatade, neighbour. From the testimony of PW4 Janku Vidhate, it
can only be gathered that Panjarapol land was situated adjacent to
the south of Ghod river where dead bodies of Jyoti and Kranti were
found floating. However, he has very clearly denied that the portion
of the bed of Ghod river near the spot was properly constructed so
as to facilitate the devotees either to take bath or wash the feet.
Upon scrutiny of PW4 Janku Vidhate, it reveals that temple of Lord
Shiva was situated within the vicinity of bed of Ghod river where
dead bodies of Jyoti and Kranti found, but absolutely it cannot be
gathered from his evidence that the way to the said temple passes
from the spot of incident.
27. Though PW8 Sakharam Palvi, during his cross
examination, admitted about existence of temple of Lord Shiva in
the vicinity of spot, however, he has very clearly denied that the
temple of Lord Shiva was situated on hill side near the spot i.e. bed
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of Ghod river and devotees go to that temple by stairs which
connects the temple and Ghod river.
28. Thus, taking into considering the evidence on record in
its entirety as discussed above, it can only be gathered that Jyoti
along with Kranti committed suicide by drowning into Ghod river
and not at all fell accidentally therein. Therefore, we have no
hesitation to hold that Jyoti died of suicidal death.
29. Once it is proved that Jyoti along with her tender aged
daughter Kranti committed suicide by drowning into Ghod river, the
next question arises about the case of prosecution pertaining to
demand of remainder dowry of Rs.25,000/- and subjecting Jyoti to
cruelty by accused for coercing her to fulfill the said demand.
30. We have already stated in paragraph supra that PW2
Deepak, PW5 Shakuntala and PW7 Sudam are material witnesses to
prove the case of prosecution pertaining to demand of remainder
dowry of Rs.25,000/- and harassment of Jyoti by accused on that
count. Admittedly, these three witnesses are elder brother, mother
and uncle (maternal aunt's husband) of Jyoti, respectively. It is not
in dispute that Haribhau Karkhile, first informant and father of Jyoti,
died after submission of charge-sheet and before commencement of
the trial. Record speaks volumes that FIR Exhibit-72 has been
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proved by the prosecution in the evidence of PW3 Mahadeo Pathare,
Police Head Constable, who recorded the same. It is settled
position of law that FIR is not substantive evidence and it can only
be used either for contradiction or corroboration. On this backdrop,
we would proceed to consider the evidence of the aforesaid three
material witnesses, one by one.
31. PW2 Deepak vide his testimony at Exhibit-44 testified
that marriage of Jyoti with accused No.1 Vijay was solemnized on
01-02-1998 at Ramling Temple, Shirur. Initially, as per the desire
of the accused, marriage ceremony was to be solemnized in a
marriage hall at Kedgaon in a grand manner. After their proceeding
in that direction, when they printed and dispatched wedding cards
to some of the relatives living at the places far away from their
town Kedgaon, accused Nos. 1 and 2, Vijay and Dattatraya,
approached and told them that they want to perform the marriage
in a simple manner at Shirur and demanded Rs.75,000/- and
ornaments of five tolas gold. Besides, they told that if their
aforesaid demand is not fulfilled, then they would not be ready for
marriage of accused No.1 Vijay with Jyoti. Therefore, his father
Haribhau agreed to the aforesaid proposal made by the accused.
He agreed for payment of Rs.50,000/- and ornaments of five tolas
gold soon and sought time for payment of balance dowry amount of
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Rs.25,000/-. When accused shown their readiness for the same,
his father Haribhau gave Rs.50,000/- and ornaments of five tolas
gold to accused, at the time of marriage of Jyoti and Vijay.
32. After marriage Jyoti went to her matrimonial house at
Shirur and started cohabiting and living with husband and in-laws
there. The house of accused Nos. 4 and 5, Prakash and Sharda, is
situated adjacent to their house at Shirur. For about five to six
months after marriage, the matrimonial life of Jyoti was normal and
accused treated her with love and affection. However, thereafter
accused Nos. 1 and 2 i.e. Vijay and Dattatraya started demanding
balanced dowry amount and ill treating Jyoti for bringing the said
amount form us. They used to harass Jyoti by saying that "her
father has deceived them". Besides, they used to beat her. Jyoti
used to disclose about the harassment meted out by the accused
for fulfillment of demand of remainder dowry amount. Father
Haribhau used to give understanding and tell Jyoti that anyhow he
would arrange the amount and pay the same to the accused at the
time of Diwali festival. In the mean time, in the month of
December, 1998, Jyoti gave birth to a female child by name Kranti.
After giving birth to the female child, harassment of Jyoti by
accused aggravated. Accused Nos. 1 to 3 started saying that they
would not allow her to return back to their house, unless their
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demand of remainder dowry amount of Rs.25,000/- is fulfilled.
Accused No.5 Sharda used to interfere in the marital affairs of Jyoti
and Vijay and also used to harass Jyoti by taunting her for her
father's not paying remainder dowry amount of Rs.25,000/- to
accused Nos. 1 to 3.
33. Jyoti had been to their house lastly at the time of
festival of Rakhi Poornima of 1999. At that time also, Jyoti had
disclosed them about the harassment being meted out by the
accused for non-fulfillment of their demand of Rs.25,000/-. She
was telling them that she would not return back to her matrimonial
house without money. However, after convincing Jyoti, father
Haribhau reached her to her matrimonial house at Shirur after ten
to twelve days of the festival of Rakhi Poornima and informed
accused that he is in financial crises, however, assured him that he
would pay Rs.25,000/- as soon as arrangement of collecting the
same is made.
34. In cross examination, he has admitted that accused
Vijay stayed at Pune. However, he expressed his ignorance as to
whether accused No.1 owns a flat at Pune. In further cross
examination he has admitted that Jyoti stayed with Vijay for some
time at Pune but denied that she stayed at Pune till coming to their
house at Kedgaon for delivery. It has come on record through cross
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examination of PW2 Deepak that in the month of June, 1999,
election programme of Parliament and State Assembly Members
was declared. He has also admitted that accused persons own
agricultural land at Loni Haveli and the financial position of accused
was sound. However, again he said that the financial position of
accused was normal. It has come on record from further cross
examination of PW2 Deepak that the family of the accused was
leading normal happy life having no debts. PW2 Deepak, in his
cross examination, very clearly admitted that they fixed marriage of
Jyoti with accused No.1 Vijay after verifying the financial condition
of accused. The cross examination of PW2 Deepak also reveals that
accused wanted to perform registered marriage of Jyoti with
accused No.1 Vijay. However, his parents were interested in
performing marriage of Jyoti in a grand manner, as Jyoti was their
only daughter. Notice of intended marriage Exhibit-46, proved in
his evidence, makes it clear that accused were not interested in
grand performance of marriage ceremony, but they were interested
to perform registered marriage.
35. In further cross examination, PW2 Deepak has very
clearly admitted that they denied performance of registered
marriage of Jyoti and Vijay. He has also admitted that marriage
was agreed to be solemnized at Shirur as it was convenient for
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relatives of both the families. He has also admitted that the
expenses of the new clothes purchased for Jyoti were borne by the
accused. In next part of the cross examination, PW2 Deepak has
very clearly admitted that talks, in respect of customary gifts and
expenses of marriage, did not take place in his presence. He has
further very clearly admitted that money transaction did not take
place in his presence. He has very clearly stated in further cross
examination that the talks, pertaining to giving and taking dowry of
Rs.75,000/-, did not take place in his presence. He learnt about
the same through his father.
36. Following are the omissions brought on record through
his cross examination (either admitted by PW2 Deepak or proved in
the evidence of PW11 Kisan Gawali, I.O.) :
i) He did not state to the police that on the day of marriage his
father paid Rs.50,000/- to accused persons.
ii) His stating to the police about payment of Rs.50,000/- to the
accused persons by his father on the day of marriage.
iii) His not stating to the police that Jyoti committed suicide since
she was subjected to cruelty by the accused persons, over the
demand of dowry.
iv) His deposing for the first time in the Court that Jyoti
committed suicide.
v) His not disclosing to the police that after the marriage Jyoti
went to her matrimonial house at Shirur.
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vi) His disclosing to the police, about Jyoti's telling that Haribhau
gave her understanding that at present he has no money, however,
he would fulfill the demand of the accused at the time of Diwali
festival, when she disclosed them about insistence for payment of
Rs.25,000/- by accused.
vii) His not disclosing to police, about the cruelty meted out by
the accused to Jyoti was aggravated when she gave birth to a
female child Kranti.
viii) His not stating to the police that accused told Jyoti not to
come to their house without Rs.25,000/-.
ix) His stating before police that at the time of festival of Rakhi
Poornima, Jyoti told them that he would not return back to the
house of accused, if Rs.25,000/- is not arranged and paid.
x) His stating before the police that after ten to twelve days of
festival of Rakhi Poornima, father Haribhau reached Jyoti to the
house of accused and explained them about his financial condition.
xi) His not stating before the police that after conversation with
PW7 Sudam when he had been to the house of accused, accused
No.2 Dattatraya said to him that they should search for Jyoti as she
is their daughter.
xii) He had not stated before the police that on his contacting
Vijay on phone he refused to tell anything about Jyoti.
xiii) His not stating before the police about accompaniment of
Arun and Babasaheb with them when they were conducting search
of Jyoti in Ghod river in boat.
37. In the next part of the cross examination PW2 Deepak
has very clearly admitted that accused No.1 Vijay reached Jyoti to
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Shirur, at the time of elections of Parliament and Assembly
Members of 1999, as he was required to move out of the house at
Pune every day. This admission makes it clear that Jyoti used to
reside at Pune with husband Vijay and not at Shirur, along with
father-in-law and mother-in-law. It has also came on record
through the cross examination of PW2 Deepak that Jyoti was an
educated woman, having acquired B.A., B.Ed. qualifications. She
had completed graduation from Ahmednagar and did B.Ed. at Pune.
For the purpose of education, Jyoti used to reside at Ahmednagar
and Pune in a private hostel. Jyoti was strong headed and firm in
nature. He has also admitted in cross examination about the FIR,
for the offence of destroying household articles and motorcycle of
the accused by fire, registered at Shirur Police Station against his
brother Sandip and his friends on 16-09-1999, when dead bodies of
Jyoti and Kranti found floating in Ghod river.
38. Having considered evidence of PW2 Deepak in its
totality, it becomes clear enough that his evidence on material
aspects of agreement of giving and taking dowry of Rs.75,000/-
and ornaments of five tolas gold and giving and taking of
Rs.50,000/- and ornaments of five tolas gold by his father to
accused at the time of marriage, is hearsay. The aforesaid
omissions, which are either admitted by him or proved in the
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evidence of PW11 Kisan Gawali, I.O. are material omissions.
Therefore, those cannot be overlooked. Once the improved version
is separated, what remains from the testimony of PW2 Deepak
would not at all said to be sufficient to establish the case of demand
of dowry by accused and harassment of Jyoti by them for not
fulfillment of remainder dowry of Rs.25,000/-.
39. The evidence of PW5 Shakuntala, mother of Jyoti is
somewhat identical with the evidence of PW2 Deepak, on material
aspects of harassment of Jyoti by accused on account of non-
fulfillment of remainder dowry amount of Rs.25,000/-. PW5
Shakuntala in her evidence at Exhibit 81 stated that her husband
Haribhau took amount of Rs.50,000/- from her and gave the same
to accused by proceeding to their house, whereas PW2 Deepak
states that amount of Rs.50,000/- with ornaments of five tolas gold
were given to accused at the time of marriage. This inconsistency,
as to the payment of part amount of agreed dowry, cannot be
overlooked in the backdrop that the evidence of PW2 Deepak and
PW5 Shakuntala both is full of material omissions, amounting to
contravention. The evidence of PW5 Shakuntala that accused Nos.
1 and 2, Vijay and Dattatraya, used to suspect the character of
Jyoti and keep her starving for coercing her to bring remainder
dowry amount of Rs.25,000/-, is neither supported by evidence of
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PW2 Deepak nor by the FIR Exhibit-72. Therefore, it would be
difficult to rely on said version.
40. PW5 Shakuntala, though states in her evidence that
four to five days before 01-02-1998 accused Nos. 1 and 2 came to
their house and demanded dowry and change in venue of the
marriage, by that time their printing and distributing of wedding
cards to the relatives who are residing at a long distance was done,
but the same does not find place in her statement under Section
161 of Cr.P.C. This material omission has been proved in the
evidence of PW11 Kisan Gawali, I.O. Evidence of PW5 Shakuntala,
as to her husband collecting Rs.50,000/- from her and giving the
same to accused by proceeding to their house, is also in the form of
omission and the same is proved in the evidence of PW11 Kisan
Gawali, I.O. Evidence of PW5 Shakuntala reveals that Dnyandev
Karkhile, brother of Haribhau was accompanied with him when he
had been to the house of accused, for giving Rs.50,000/-. Since
Haribhau, the first informant and a star witness unfortunately died
before commencement of the trial, it would have been necessary on
the part of the prosecution to examine Dnyandev Karkhile to prove
the aforesaid aspect. His non examination, though available, is a
fatal lapse. It has also come on record through the cross
examination of PW5 Shakuntala that after birth of Kranti, accused
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Nos. 3 and 5 came to their house to see the newly born child with
customary articles / gifts.
41. Aforesaid evidence coupled with documentary evidence
brought on record by the accused showing that accused No.1,
father of Kranti, deposited Rs.50,000/- in her name with Bank of
Maharashtra, Ghorpadi Branch, completely rules out the possibility
of accused getting annoyed when Jyoti gave birth to a daughter and
started harassing Jyoti more. On the contrary, the aforesaid
evidence reflects that they were happy.
42. Through the further cross examination of PW5
Shakuntala, it has come on record that she did not tell any relative
that accused were ill treating Jyoti for insisting her to fulfill their
demand of remainder dowry amount of Rs.25,000/-. This conduct
of PW5 Shakuntala cannot be lost sight of. In normal course, every
mother shares such aspects with kith and kin or relatives. The
statement of PW5 Shakuntala, about her husband's immediately
proceeding to Shirur upon knowing that Jyoti is missing, is in the
form of omission. She has not stated the same to police when her
police statement was recorded. This omission and other omissions
brought on record through further cross examination of PW5
Shakuntala that, after festival of Rakhi Poornima, she along with
husband Haribhau reached Jyoti to her matrimonial house, gave
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understanding to all the five accused, promised them about
payment of money soon, Jyoti's visiting to their house at Kedgaon
three to four times and making complaint of ill treatment, after
seven to eight days of missing of Jyoti, somebody's informing them
on telephone that dead bodies of Jyoti and Kranti are seen floating
in Ghod river and thereafter her husband's reaching to Shirur along
with son and some villagers, Jyoti's resuming cohabitation with
husband Vijay at her matrimonial house at Joshiwadi, Shirur, Vijay's
demanding remainder dowry amount of Rs.25,000/-, Vijay and
Dattatray visiting to the matrimonial house of Jyoti intermittently
and reminding them about remainder dowry amount, harassment of
Jyoti went on increasing, Jyoti's asking them, on her visiting to their
house on the occasion of Diwali festival, as to when they would
arrange the remainder amount of dowry, Jyoti's disclosing them
that on account of non payment of remainder dowry amount,
accused were not giving her food and accused No.1 Vijay's burning
her educational certificates and B.Ed. degree certificate, and on her
visit to their house at the time of Diwali festival Jyoti disclosed her
that accused Nos. 4 and 5, Prakash and Sharda, also harassed her
by way of talking her in an offending manner for money, are fatal
omissions and creates every doubt about truthfulness of her
version.
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43. It has came on record through further cross-
examination of PW5 Shakuntala that after delivery, accused No.1
Vijay had been to their house at Kedgaon for fetching Jyoti.
However, PW5 Shakuntala states her ignorance as to the place
where Vijay taken Jyoti and Kranti, i.e. at Shirur or Pune. PW5
Shakuntala has conveniently avoided to state anything about the
criminal act done by her another son Sandip along with his friends
on 16-09-1999.
44. Thus, having regard to the totality of the evidence of
PW5 Shakuntala discussed above, we are of the view that the her
evidence, as to the demand of dowry and harassment of Jyoti by all
the accused, on account of remainder dowry amount of
Rs.25,000/-, is not worthy of credence.
45. PW7 Sudam, uncle of Jyoti (maternal aunt's husband) is
also the important witness. Admittedly, in the relevant period, he
was in Military Service and posted at Meerut, Uttar Pradesh. Neither
he attended the meeting, in which marriage of Jyoti with accused
No.1 Vijay was settled, nor attended the marriage of Jyoti with
accused No.1 Vijay, solemnized on 01-02-1998 at Shirur. His
evidence is important on two aspects, one is about Jyoti's disclosing
him pertaining to the conduct of accused, on his visit to Pune, and
another is about accused No.1 Vijay's proposing him to forget
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everything by accepting Rs. 3 to 4 lakhs, by visiting his house at
Pune, on 13-09-1999.
46. Vide his deposition at Exhibit-87 on aforesaid aspects,
PW7 Sudam deposed that after ten to twelve months of marriage,
when he had come to his house at Pune from Meerut, Jyoti came to
his house and disclosed him that all the accused harass and ill treat
her on account of remainder dowry amount of Rs.25,000/-, and
also, suspected her character. At that time, Jyoti had stayed at his
house for one day and on the next day he left Jyoti to her
matrimonial house at Joshiwadi, Shirur and informed Haribhau
about what Jyoti said to him, by visiting his house at Kedgaon.
47. PW7 Sudam had further stated that seven to eight
months after the aforesaid visit, again he visited Pune, by taking
leave for 20 days. At that time, he learnt about missing Jyoti from
Haribhau on telephone, then, as per the instructions of Haribhau,
on the next day at about 08.00 p.m., he rushed to the house of
accused No.1 Vijay situated at Mundwa Road, Pune, inquired Vijay
as to whether Jyoti has reached Pune, since yesterday she was
missing, in response, accused No.1 Vijay said him that, "You
conduct search of Jyoti". He informed about the aforesaid
conversation, that took place between him and accused No.1 Vijay,
to Haribhau on telephone, soon after coming out from the flat of
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accused Vijay.
48. PW7 Sudam has also stated in his evidence that on
13-09-1999 at about 04:00 p.m. accused No.1 Vijay visited his
house at Pune and put a proposal of compromise by accepting Rs. 3
to 4 lakh. On the next day, he informed the same to Haribhau by
coming to Kedgaon from Pune. He has also stated about fishing out
dead bodies of Jyoti and Kranti from Ghod river and shifting those
dead bodies to hospital by police officials, after drawing inquest
panchanama. It has also come in his evidence that Jyoti had tied
Kranti on her chest by pallu of saree and a string.
49. Like the evidence of PW2 Deepak and PW5 Shakuntala,
evidence of PW7 Sudam is also full of omissions. The material
omissions brought on record though his cross examination are as
under :
i) Haribhau's disclosing him on phone that accused Vijay and
Dattatray visited Haribhau's house at Kedgaon, four days prior to
the marriage of Jyoti with accused Vijay and demanded amount of
Rs.75,000/- and ornaments of five tolas gold as dowry, and also,
told him for changing the venue of marriage from Kedgaon to
Ramling Temple, Shirur.
ii) His stating to police about his disclosing to Haribhau whatever
Jyoti disclosed to him at Pune, by staying for one day at his house,
and then his proceeding to Kedgon at the house of Haribhau and
advised Haribhau to settle the matter.
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These omissions cannot be ignored while appreciating the evidence
of PW7 Sudam in totality.
50. During further cross examination, PW7 Sudam has
admitted that he did not state before police about his giving
understanding to Jyoti, when she visited his house at Pune, and his
proceeding to the flat of accused No.1 Vijay situated at Mundwa
Road, Pune and inquiring with him whether Jyoti had come to him
and in response, accused No.1 Vijay's telling him to search for Jyoti
as she is their daughter and he does not want Jyoti, and that he
disclosed aforesaid conduct of Vijay to Haribhau, immediately after
coming out from the flat of accused No.1 Vijay, and his asking
Haribhau as to why he has not lodged report. These admitted
omissions add to the suspicion about the truthfulness of the version
of PW7 Sudam.
51. It is pertinent to note that, like PW5 Shakuntala, PW7
Sudam has also avoided to state about the criminal act committed
by Sandip (younger son of Haribhau) along with his friends on
16-09-1999 and cognizance of the said act taken by the police.
Thus, having regard to the totality of evidence of PW7 Sudam,
discussed in para supra, we are not inclined to rely on his version.
52. It is evident from the record that on 08-09-1999 i.e.
after two days of missing of Jyoti, Haribhau lodged missing report
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Exhibit-39 upon which, Missing Case No.14/1999 was registered at
Shirur Police Station on. Thereafter, on 13-09-1999, second time
Haribhau visited Shirur Police Station and lodged the report at
Exhibit-93, inter alia contending that upon inquiring about Jyoti and
Kranti, accused Nos. 2 and 3 are giving evasive replies stating that
Jyoti being their daughter they should search for her and therefore,
he is suspecting accused Nos. 1 to 3 for causing death / harm to
Jyoti, and thereafter on 17-09-1999 Haribhau lodged the FIR at
Exhibit-72 at Shrigonda Police Station, on the basis of which all the
five accused were charge-sheeted.
53. When Haribhau, Deepak, Shakuntala and Sudam were
well aware about the fact that since more than one year accused
were harassing Jyoti, on account of non payment of remainder
dowry of Rs.25,000/-, in normal course it was expected on their
part to disclose the same to police immediately, however, they did
not disclose anything about the aforesaid conduct of the accused, to
police either on 08-09-1999, at the time of lodging missing report
or on 13-09-1999, at the time of one more missing report, and
disclosed the same for the first time on 17-09-1999, through the
FIR Exhibit-72.
54. One can understand about not informing the police
about the said incident on 08-09-1999 while lodging the missing
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report, but the conduct of Haribhau not informing the police about
alleged conduct of the accused on 13-09-1999 while lodging the
report at Exhibit-93, when strong suspicion raised in his mind about
either killing or harming Jyoti by accused Nos. 1 to 3, appears to be
the abnormal conduct.
55. It is pertinent to note that during the course of
evidence, in addition to notice of intended marriage at Exhibit-46,
accused have also produced on record original degree certificate of
Bachelor of Arts issued in the name of Jyoti by the University of
Pune in December, 1975 at Exhibit-48, original passing certificate of
B.Ed. (Gen.) New Exam issued by University of Pune in April, 1997
at Exhibit-49, issued in the name of Jyoti, original mark memo of
B.Ed. Examination issued by University of Pune on 7 th May, 1997 at
Exhibit-50, original Higher Secondary Certificate issued by
Divisional Secretary, Maharashtra State Board of Secondary and
Higher Secondary Education in the name of Jyoti at Exhibit-51.
Prosecution witnesses have not disputed the genuineness of those
certificates. On the contrary, accused have admitted the same.
Existence of all these original certificates of Jyoti completely
negatives allegations made in the FIR Exhibit-72 and testimony of
PW5 Shakuntala that after birth of Kranti accused No.1 Vijay
destroyed the file containing all original certificates of Jyoti in front
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of her, by fire.
56. During the course of recording the statement under
Section 313 of Cr.P.C., accused No.1 not only stated that after birth
of daughter Kranti he deposited Rs.50,000/- in the Bank of
Maharashtra, Ghorpadi Branch, Pune, in the name of Kranti in fixed
deposit account, but also produced on record xerox copy of the said
fixed deposit receipt. Prosecution witnesses have not disputed
genuineness of the said receipt. Thus, the conduct of the accused
in taking care of future of Kranti, immediately after her birth, by
way of depositing substantial amount in her name in bank in fixed
deposit account, creates every doubt about the case set out in the
FIR and deposed by PW2 Deepak, PW5 Shakuntala and PW7 Sudam
that after the birth of Kranti gravity of harassment of Jyoti by
accused increased.
57. While appreciating the evidence of PW2 Deepak, PW5
Shakuntala and PW7 Sudam, we have already observed that the
case of the prosecution as far as Jyoti's continuously staying at
Shirur, is not worthy of acceptance. When ocular evidence of all
these three witnesses is clear enough and establish that accused
No.1 Vijay was a journalist, his headquarter was at Pune and he
used to reside in a flat situated at Mundhwa road Pune, contention
of Jyoti's continuously residing at Shirur appears to be not probable.
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On this backdrop, contention of the accused that Jyoti used to
reside with her husband Vijay at Pune and only few days prior to
the incident accused No.1 Vijay had reached Jyoti to his parent's
house at Joshiwadi, Shirur, as elections of Parliament and State
Assembly were fast approaching and he was required to stay away
from the house continuously to cover the news pertaining to said
elections, appears to be probable. From this angle also, physical
and mental harassment of Jyoti by accused Nos. 1 to 5, on account
of non payment of remainder dowry of Rs.25,000/-, appears
doubtful.
58. Moreover, the allegations of harassment of Jyoti by
accused are vague and omnibus. Nobody from three material
witnesses viz. PW2 Deepak, PW5 Shakuntala and PW7 Sudam had
deposed about the nature of harassment. When Jyoti was well
educated young woman, certainly, she should have taken effective
steps against the accused, had there been her harassment at the
hands of the accused. Admittedly, Jyoti did not write any letter to
her father or brother, either from Pune or from Shirur, complaining
that accused are insisting her for bringing remainder dowry of
Rs.25,000/- and consistently harassing her physically or mentally
on account of the same. PW2 Deepak and PW5 Shakuntala, both in
their evidence deposed that whenever Jyoti used to come to their
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house at Kedgaon, she used to disclose to them about the
harassment meted out by the accused, but no details of the visits of
Jyoti to their house found place in their evidence. No doubt, PW2
Deepak deposed in his evidence that Jyoti had been to Kedgaon on
the occasion of Rakhi Poornima festival and at that time she had
complained against accused that they are demanding remainder
dowry of Rs.25,000/- and harassing her on that account. Whereas,
PW5 Shakuntala deposed that Jyoti made complaint of aforesaid
nature against the accused when she had visited their house at the
time of Diwali and Rakhi Poornima festivals.
59. When the evidence as to the agreement of giving and
taking dowry of Rs.75,000/- and ornaments of 5 tolas gold, out of
which Haribhau agreed to pay dowry of Rs.50,000/- and ornaments
of five tolas gold to accused at the time of marriage of Jyoti with
accused No.1 Vijay, appears to be doubtful in nature for the various
reasons stated in paragraph supra, the evidence of PW2 Deepak,
PW5 Shakuntala and PW7 Sudam as to the demand of remainder
dowry of Rs.25,000/- and harassment of Jyoti by accused for
coercing her to fulfill the same, holds no water and cannot be
accepted.
60. Having regard to the facts that Haribhau, prior to
lodging FIR at Exhibit-72 on 17-09-1999, did not make complaint
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against accused to the police alleging harassment of Jyoti on
account of remainder dowry of Rs.25,000/-, though he had many
occasions to make the complaint. At least Haribhau could have
mentioned all these facts in missing report lodged on 08-09-1999,
or in the second report dated 13-09-1999 in which he raised
suspicion of causing harm to Jyoti by accused, but in vain. This
conduct of Haribhau and his family members creates every doubt
about allegations made in the FIR Exhibit-72 lodged on
17-09-2021.
61. It is evident from the record that, on the next day, on
finding dead bodies of Jyoti and Kranti floating in Ghod river and
fishing out the same by police with the aid of PW6 Balu, fisherman,
i.e. on 16-09-1999, Sandip, younger son of Haribhau and PW5
Shakuntala and younger brother of PW2 Deepak and Jyoti, got
furious and visited the house of accused at Joshiwadi, Shirur along
with his friends, broke opened the door with stone, entered therein,
and robbed the ornaments of Jyoti, thrown household articles
including telephone, clothes kept in cupboard, food grains, etc.
outside the house and set the same on fire, along with motorcycle
lying outside the house. Taking cognizance of the said act of
Sandip and his friends, police officials of Shirur Police Station
registered FIR bearing Cr. No.109/1999 against them for the
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offences punishable under Sections 143, 147, 148, 451, 435 and
427 of I.P.C.
62. Though PW5 Shakuntala and PW7 Sudam avoided to
admit the above, certified copy of the charge-sheet pertaining to
the said crime brought on record by the accused during the course
of their statement recorded under Section 313 of Cr.P.C, confirms
the same. Copy of the charge-sheet reveals that in pursuance of
the aforesaid FIR, police officials of Shirur Police Station carried the
investigation and after investigation charge-sheeted Sandip
Haribhau Karkhile and his friends namely Pappu Barase, Dattatray
Chaudhari, Raju Sole, Rajesh Kakade, have been charge sheeted for
commission of aforesaid crime on 16-09-1999 at about 05.00 p.m.
Admittedly, one day after registration of the aforesaid crime, that is
on 17-09-1999, at about 06:30 p.m. Haribhau lodged the FIR
Exhibit-72 against accused at Shrigonda Police Station on the basis
of which accused have been charge-sheeted and prosecuted under
Section 498-A, 304-B read with Section 34 of IPC.
63. Looking to the events that took place from 06-09-1999
onwards, discussed in para (supra), the defence of the accused that
Haribhau lodged FIR Exhibit-72 as a counter blast to the aforesaid
FIR, registered against his son Sandip and his friends on
16-09-1999 at Shirur Police Station, cannot be said to be wholly
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unsustainable and rejected outrightly.
64. Admittedly, as far as accused Nos. 5 and 4, Sharda and
Prakash, sister-in-law and husband of sister-in-law of Jyoti, are
concerned, it is evident from record that accused No.4 Prakash
Pawar was a Government Servant serving in Forest Department. In
relevant period, his posting was at Madhegaon, Tq. Shrigonda. His
own house was situated in Joshiwadi, Shirur near the house of
accused Nos. 1 to 3. It is the contention of accused Nos. 4 and 5,
Sharda and Prakash, that they along with their children used to
reside at Madhegaon, where accused No.4 was posted, and after
transfer from Madhegaon they left the Government quarter at
Madhegaon and shifted to Shirur in June, 2001. They never stayed
in their own house situated at Joshiwadi, Shirur and they had
rented out the same to Smt. Bharati Awatade.
65. Prosecution witnesses have not disputed genuineness of
papers brought on record by accused Nos. 4 and 5. The said
papers clearly reveal that from 1998 to June, 2001, accused No.4
was posted at Madhegaon, Tq. Shirur and from June, 2001 onwards
he was transferred to Shirur. He occupied Government Quarters at
Madhegaon as well as at Shirur. From the year 1999 to 2000, their
son Prashant Pawar was studying in 6 th standard at New English
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School, Madhegaon, Tq. Shrigonda. Having regard to all the papers
brought on record by accused Nos. 4 and 5, during the course of
their statement recorded under Section 313 of Cr.P.C., possibility of
arraying accused Nos. 4 and 5 in the case only because they are
son-in-law and daughter of accused Nos. 2 and 3 and brother-in-
law and sister of accused No.1 Vijay, cannot be ruled out. When
accused Nos. 4 and 5 were not residing in their own house at
Joshiwadi, Shirur in the relevant period and when there are no
allegations that, either they used to harass Jyoti at the time of their
visit to the house of accused Nos. 1 to 3 or they used to call Jyoti
on phone and taunt her for not paying remainder dowry by parents,
evidence of their complicity in the incident cannot be accepted.
66. Having regard to the totality of the evidence discussed
above, though it is clear enough that Jyoti had committed suicide
within seven years of marriage with accused No.1 Vijay, accused
cannot be held guilty, either for the offence punishable under
Sections 498-A, 304-B or 306 read with Section 34 of I.P.C., as
evidence on the aspect of subjecting her to cruelty by accused
persons on account of remainder demand of dowry of Rs.25,000/-
soon before her death or driving her to commit suicide by their
willful conduct, is doubtful for various reasons as stated in the
foregoing paragraphs.
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67. Since, evidence on the aspect of subjecting Jyoti to
cruelty on account of dowry demand is doubtful and not worthy of
credence as stated above, presumption contemplated in Section
113A or Section 113B of the evidence Act would not support the
prosecution, for holding the accused guilty, either for offences
punishable under Sections 498-A, 304-B or 306 read with Section
34 of the I.P.C., only on the ground that Jyoti with her daughter
Kranti committed suicide within seven years of marriage with
accused No.1 Vijay.
68. It is true that reason for committing suicide by Jyoti has
not come on record, but that alone cannot be a ground to hold
accused guilty for offences punishable under Sections 498-A, 304-B
or 306 read with Section 34 of I.P.C., on suspicion, when the
evidence as to the demand of dowry and harassment of Jyoti by
accused for the same, adduced by the prosecution is doubtful and
not worthy of credence.
69. In the matter of Smt. Shanti and another Vs. State of
Haryana [AIR 1991 Supreme Court 1226] , while discussing the
scope and ambit of Sections 304-B and 498-A of I.P.C., the Hon'ble
Supreme Court, in paragraph 6 of the said judgment, has held as
under :-
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"6. Now we shall consider the question as to whether the
acquittal of the appellants of the offence punishable under
Section 498-A makes any difference. The submission of the
learned counsel is that the acquittal under Section 498-A,
I.P.C. would lead to the effect that the cruelty on the part of
the accused is not established. We see no force in this
submission. The High Court only held that S. 304D and S.
498-A, I.P.C. are mutually exclusive and that when once the
cruelty envisaged in S.498-A, I.P.C. culminates in dowry
death of the victim, S. 304B alone is attracted and in that
view of the matter the appellants were acquitted under S.
498-A, I.P.C. It can therefore be seen that the High Court did
not hold that the prosecution has not established cruelty on
the part of the appellants but on the other hand the High
Court considered the entire evidence and held that the
element of cruelty which is also an essential of S. 304B,
I.P.C. has been established. Therefore the mere acquittal of
the appellants under S. 498-A, I.P.C. in these circumstances
makes no difference for the purpose of this case. However,
we want to point out that this view of the High Court is not
correct and Ss. 304B and 498-A cannot be held to be
mutually exclusive. These provisions deal with the two
distinct offences. It is true that "cruelty" is a common
essential to both the sections and that has to be proved.
The Explanation to S.498-A gives the meaning of "cruelty".
In S.304B there is no such explanation about the meaning of
"cruelty" but having regard to the common back-ground to
these offences we have to take the meaning of "cruelty or
harassment" will be the same as we find in the explanation
to S.498-A under which "cruelty" by itself amounts to an
offence and is punishable. Under S.304B as already noted,
it is the "dowry death" that is punishable and such death
should have occurred within seven years of the marriage.
No such period is mentioned in S.498-A and the husband or
his relative would be liable for subjecting the woman to
"cruelty" any time after the marriage. Further it must also
be borne in mind that a person charged and acquitted under
S.304B can be convicted u/S. 498-A without charge being
there, if such a case is made out. But from the point of view
of practice and procedure and to avoid technical defects it is
necessary in such cases to frame charge under both the
sections and if the case is established they can be convicted
under both the sections but no separate sentence need be
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awarded under S. 498-A in view of the substantive sentence
being awarded for the major offence under S.304B."
70. The facts of the case in hand are different. The
prosecution has proved only that Jyoti committed suicide within 7
years of marriage with accused No.1 Vijay, however, failed to prove,
by adducing cogent evidence, that accused Nos. 1 to 5 subjected
Jyoti to cruelty on account of remainder dowry amount of
Rs.25,000/-. Therefore, ratio led down by the Hon'ble Supreme
Court would not support the prosecution to hold the accused guilty
for the offences punishable under Sections 498-A, 304-B and 306
read with Section 34 of the I.P.C.
71. In the matter of State of Uttar Pradesh Vs. Satish [AIR
2005 SC 1000], the Hon'ble Supreme Court, while discussing law
pertaining to appeal against acquittal contemplated in Section 378
of Cr.P.C., has held as under :
"There is no embargo no the appellate Court reviewing the
evidence upon which an order of acquittal is based.
Generally, the order of acquittal shall not be interfered with
because the presumption of innocence of the accused is
further strengthened by acquittal. The golden thread which
runs through the web of administration of justice in criminal
cases is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the accused
and the other to his innocence, the view which is favourable
to the accused should be adopted. The paramount
consideration of the Court is to ensure that miscarriage of
justice is prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than from the
conviction of an innocent. In a case where admissible
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evidence is ignored, a duty is cast upon the appellate Court
to re-appreciate the evidence where the accused has been
acquitted, for the purpose of ascertaining as to whether any
of the accused really committed any offence or not."
72. In the case in hand, after re-appreciating the evidence,
we do not find that the view taken by learned Additional Sessions
Judge is incorrect or improbable. Therefore, we concur with his
view.
73 . In view of the above, we do not find any fault on the
part of learned IInd Ad-hoc Additional Sessions Judge, Ahmednagar,
granting acquittal to the accused by giving them the benefit of
doubt. Therefore, this appeal is liable to be dismissed.
74. Accordingly, this appeal is dismissed.
75. Since this Court has appointed Shri Amol Joshi to
represent respondent Nos. 1, 2, 4 and 5, his fees are quantified at
Rs.15,000/-(Rupees Fifteen Thousand Only) which is to be paid to
him through the High Court Legal Services Sub-Committee,
Aurangabad.
(B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
SVH
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