Bombay High Court
The State Of Maharashtra vs Achyut Bhaskar Kale And Others on 15 September, 2021
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
1 CRI.APPEAL NOs.271-14 & 2 Ors
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 271 OF 2014
Achyut S/o. Bhaskar Kale,
Age -28 years, Occu: Labour,
R/o. Dhanegaon, Tal. Jamkhed,
Dist. Ahmednagar
(At present lodged at Yerawada Central
Prison, Pune, District Pune) ...Appellant
(Original Accused No. 1)
Versus
The State of Maharashtra,
Through Police Station Officer, Police
Station, Jamkhed, Tal. Jamkhed,
Dist - Ahmednagar ...Respondent
Mr Joydeep Chatterji, Advocate holding for
Mr A.R. Devakate, Advocate for Appellant
Mrs Preeti V. Diggikar, A.P.P. for Respondent-State
WITH
CRIMINAL APPEAL NO. 325 OF 2014
The State of Maharashtra, Through
PI Jamkhed Police Station,
Tq. Jamkhed, Dist. Ahmednagar ...Appellant
(Ori. Complainant)
Versus
1. Achyut Bhaskar Kale,
Age 26 years, Occu. Labour,
2. Shakuntala Bhaskar Kale,
Age 42 years, Occu. Household,
3. Bhaskar Laxman Kale,
Age 45 years, Occu. Agri.,
4. Satyashila @ Pinti Bapu Bhosale,
Age 30 years, Occu. Labour,
R/o Dhanegaon, Tq. Jamkhed,
Dist. Ahmednagar ...Respondents
(Ori. Accused)
Mrs Preeti V. Diggikar, A.P.P. for Appellant-State
Mr Joydeep Chatterji, Advocate holding for
Mr A.R. Devakate, Advocate for Respondents
::: Uploaded on - 15/09/2021 ::: Downloaded on - 16/09/2021 07:56:46 :::
2 CRI.APPEAL NOs.271-14 & 2 Ors
WITH
CRIMINAL APPEAL NO. 683 OF 2014
The State of Maharashtra, Through
PI Jamkhed Police Station,
Tq. Jamkhed, Dist. Ahmednagar ...Appellant
(Ori. Complainant)
Versus
1. Shakuntala Bhaskar Kale,
Age 42 years, Occu. Household,
2. Bhaskar Laxman Kale,
Age 45 years, Occu. Agri.,
3. Satyashila @ Pinti Bapu Bhosale,
Age 30 years, Occu. Labour,
R/o Dhanegaon, Tq. Jamkhed,
Dist. Ahmednagar ...Respondents
(Ori. Accused Nos. 2 to 4 )
Mrs Preeti V. Diggikar, A.P.P. for Appellant-State
Mr Joydeep Chatterji, Advocate holding for
Mr A.R. Devakate, Advocate for Respondents
CORAM : V.K. JADHAV AND
SHRIKANT D. KULKARNI, JJ.
RESERVED ON : 10.08.2021
PRONOUNCED ON : 15.09.2021
JUDGMENT : (PER SHRIKANT D. KULKARNI , J.)
1. These appeals are directed against the impugned Judgment
and order rendered by the Additional Sessions Judge, Ahmednagar in
Sessions Case No. 163 of 2012.
2. Feeling aggrieved and dissatisfied by the impugned Judgment
and order of conviction passed by the Additional Sessions Judge, accused
No.1 - Achyut Bhaskar Kale has preferred Criminal Appeal No. 271/2014.
Whereas, the State of Maharashtra has preferred Criminal Appeal No.
325/2014 against all the accused for enhancement of sentence for the
3 CRI.APPEAL NOs.271-14 & 2 Ors
offence punishable under section 498A read with section 34 of IPC and
also preferred another appeal vide Criminal Appeal No. 683/2014 against
the acquittal of accused Nos. 2 to 4 at the hands of the Additional
Sessions Judge, Ahmednagar from the charge of section 304(B) read with
section 34 of IPC. These appeals are heard together and being disposed
of by common Judgment and order.
3. Prosecution case in narrow compass is as under :-
(a) The marriage of Sunita (Since deceased) was solemnized with
accused - Achyut Bhaskar Kale on 07.03.2010. (As per marriage invitation
card on record, date of marriage is 08.03.2010) The parents of deceased
had given Rs. 1,00,000/- and two tola gold as a dowry in the marriage to
accused No. 1 in addition to valuable household articles. The marriage
expenses were borne by the parents of deceased Sunita. Sunita went to
matrimonial house at Dhanegaon for co-habitation.
(b) According to the prosecution case, Sunita was subjected to
mental and physical cruelty at the hands of her husband and in-laws
(accused Nos. 1 to 4). Accused - Satyashila happened to be married
sister-in-law of deceased Sunita but she was residing with co-accused as
she is widow. In the year 2010, at the time of Gudhi Padva, brother of the
deceased, Deepak Madhukar Londhe had been to the matrimonial house
of Sunita. The accused made unlawful demand of gold ring and cash
amount and they alleged to have abused Sunita in a filthy language in
presence of Deepak Londhe. Deepak tried to convince the accused and
further assured that after some days, he would make some arrangement
4 CRI.APPEAL NOs.271-14 & 2 Ors
to fulfill their demand. He also requested the accused to stop harassment
and cruelty which was being caused to Sunita.
(c) Accused - Achyut shifted to Pune, Kalewadi for some job with
wife Sunita and her sister-in-law - Satyashila. Accused - Achyut and
Satyashila alleged to have poured kerosene on her person and tried to set
her ablaze, but Sunita escaped from the hands of the accused. Sunita and
her husband again came back to Dhanegaon. The accused continued
their harassment and cruelty to Sunita to meet their unlawful demand.
Prior to eight days of the incident, Muktabai Madhukar Londhe (mother of
deceased) and Rupesh Londhe (another brother of deceased) had been to
Sunita's matrimonial house at Dhanegaon. Accused Shakuntala, Bhaskar
and Satyashila alleged to have threatened to mother of the deceased that
they would perform another marriage of Achyut with another girl, even if
Sunita met with death, they would get handsome amount of dowry.
Muktabai apprehended danger to the life of her daughter Sunita and asked
Sunita to accompany her, but Sunita refused to accompany her by stating
that she is pregnant and after delivery, the things would be alright.
(d) On 03.03.2012 at about 7.30 p.m. Deepak Londhe, first
informant received phone call from cousin father-in-law of Sunita to inform
that Sunita was no more. The first informant along with his parents rushed
to the house of the accused. They noticed that Sunita was lying dead in
one room having injuries on her neck. The accused were not present in
the house.
(e) On 03.03.2012, Ashok Gokul Chavan, Police Patil of village
5 CRI.APPEAL NOs.271-14 & 2 Ors
Dhanegaon, Tal. Jamkhed, Dist. Ahmednagar after visiting the spot,
rushed to the Police Station, Jamkhed and lodged report about death of
Sunita by consuming poison.
(f) On the basis of report submitted by Police Patil, A.D. No.
11/2012 came to be registered with Jamkhed Police Station. The Police
rushed to the spot. Inquest panchanama came to be prepared and dead
body was sent to hospital for post mortem examination.
(g) After cremation, Deepak Londhe (brother of the deceased)
lodged F.I.R. with Jamkhed Police Station and on that basis C.R. No. I
23/2012 came to be registered under sections 304B, 498A, 323, 504, 506
read with section 34 of IPC. The investigation was entrusted to API
Raghunath Nachan. The Investigating Officer recorded statements of
witnesses and accused came to be arrested. The articles seized, were
sent for chemical analysis. The viscera was also sent to forensic
laboratory. After completion of investigation, API Raghunath Nachan
submitted the charge sheet and thereafter, JMFC, Jamkhed committed the
case to the Court of Sessions at Ahmednagar.
(h) The learned Additional Sessions Judge has framed the charge
against the accused Nos. 1 to 4 under section 498A and 304B read with
section 34 of IPC. They were put on trial.
(i) The prosecution machinery as well as defence has examined
the respective witnesses in support of their case. The learned Additional
Sessions Judge, after appreciating the evidence of prosecution witnesses
6 CRI.APPEAL NOs.271-14 & 2 Ors
and defence and considering the argument advanced by the learned
A.P.P. and defence counsel, was pleased to hold accused No. 1/Achyut
guilty for the offence punishable under sections 304B and 498A read with
section 34 of IPC and sentenced him to undergo life imprisonment for the
offence punishable under section 304B and to pay fine of Rs. 5,000/-
(Rupees Five Thousand), in default of payment of fine, to suffer rigorous
imprisonment for six months and to pay fine of Rs. 2,000/- (Rupees Two
Thousand) and also convicted him for the offence punishable under
section 498A of IPC and sentenced him to suffer rigorous imprisonment
for six months and to pay fine of Rs.2,000/- and in default of payment of
fine, to suffer rigorous imprisonment for one month.
(j) Accused Nos. 2 to 4 came to be acquitted of the charge of
dowry death punishable under section 304B read with section 34 of IPC.
However, learned Additional Sessions Judge convicted them for the
offence punishable under section 498A read with section 34 of IPC and
sentenced to undergo rigorous imprisonment for six months and to pay
fine of Rs. 2,000/- (Rupees Two Thousand) each and in default of
payment of fine, to suffer rigorous imprisonment for one month. The
sentences were directed to run concurrently.
4. Heard Mr Joydeep Chatterji, learned counsel for the
appellant/accused and Mrs Preeti V. Diggikar, learned A.P.P. for the State.
5. Perused the evidence produced by prosecution agency as well
as defence with able assistance of learned A.P.P. and learned counsel for
the appellant.
7 CRI.APPEAL NOs.271-14 & 2 Ors
Argument of learned counsel for the appellant/accused.
6. Mr Chatterji, learned counsel for the appellant/accused
submitted that the prosecution case is based upon circumstantial
evidence. There is no direct evidence to prove the alleged charges
levelled against the accused. He vehemently submitted that late Sunita
was never subjected to harassment and cruelty to satisfy unlawful demand
of gold ring and cash amount. It is afterthought story projected by the
prosecution by taking undue advantage of unfortunate death of Sunita. No
independent witness is coming forth to support case of prosecution that
deceased Sunita was subjected to harassment and cruelty at the hands of
the accused for the unlawful demand of dowry. He submitted that marriage
of Sunita was solemnized against her wish and she was not happy with
accused No. 1/Achyut. He submitted that there was delay of one day in
lodging of FIR. That itself shows cooked story narrated in the FIR to book
the accused.
7. Mr Chatterji, learned counsel submitted that at the time of
alleged incident, accused No. 1/Achyut was at work place Thergaon in
Pune District. He was not at Dhanegaon. After receiving message on
phone, he rushed to village Dhanegaon. Accused No. 1 has been falsely
implicated in this case. Accused Nos. 2 to 4 were behaving with Sunita in
a very good manner and Sunita never complained against them. So far as
alleged unlawful demand of dowry is concerned and fulfillment thereof, no
meeting between the families, much less about the alleged harassment
8 CRI.APPEAL NOs.271-14 & 2 Ors
which was caused to Sunita. It speaks that Sunita was never subjected to
harassment and cruelty to fulfill unlawful demand of dowry. She was
treated nicely by her husband and in-laws.
8. Mr Chatterji, the learned counsel took us through the evidence
of P.W. No. 1 - Deepak Madhukar Londhe, Exh. 22, P.W. No. 2 -
Muktabai Madhukar Londhe Exh. 23, P.W. No. 4 - Manik Abasaheb
Ghadge, Exh. 46 and P.W. No. 6 - Rupesh Madhukar Londhe, Exh. 52.
9. Mr Chatterji, the learned counsel pointed out how the evidence
of above said witnesses is felling short to prove the offence of dowry
death as well as offence under section 498A of IPC. Mr Chatterji, learned
counsel also invited our attention to the evidence of three defence
witnesses examined by the accused viz. D.W. No. 1 - Rashid Chand
Shaikh, Exh. 79, D.W. No. 2 - Santosh Shahaji Kale, Exh. 80 and D.W.
No. 3 - Tarabai Bharat Raut, Exh. 83 who is resident of same locality of
Dhanegaon where accused reside. Evidence of D.W. No. 3 - Tarabai
Raut, Exh. 83 discloses that marriage of Sunita was solemnized with
accused No. 1 against her wish. He further submitted that evidence of
D.W. No. 2 - Santosh Kale Exh. 80 discloses that at the time of alleged
incident, accused No. 1 - Achyut was at Thergaon and busy in his work.
The evidence of D.W. No. 1 - Rashid Chand Shaikh, Exh. 79 speaks that
he had heard from Sunita that her marriage was performed with accused
No. 1 - Achyut against her will.
9 CRI.APPEAL NOs.271-14 & 2 Ors
10. Mr Chatterji, learned counsel vehemently submitted that the
learned trial Judge has committed an error on facts in convicting husband/
Achyut under section 304B of I.P.C. and all accused under section 498A
read with section 34 of I.P.C. There is no sufficient evidence to arrive at
such positive conclusion. The learned trial Judge has not considered the
defence evidence in a proper perspective and not given equal treatment
like prosecution witnesses. Mr Chatterji submitted that accused
Achyut/husband needs to be free from the charge under section 304B of
I.P.C. as well as all the accused persons/in-laws under section 498A read
with section 34 of I.P.C. There is no merit in the appeal for enhancement
moved by the State as well as appeal against the acquittal of original
accused Nos. 2 to 3 from the charge under section 304B of I.P.C. in view
of above submissions made by him.
11. Mr Chatterji, learned counsel for the appellants has placed his
reliance on the following stock of citations in support of his argument :-
(i) Tomaso Bruno and Another Vs. State of Uttar Pradesh
reported in (2015) 7 SCC 178
(ii) Ashok Kumar Vs. State of Haryana reported in (2010) 12
SCC 350
(iii) Jumni and others Vs. State of Haryana reported in (2014)
11 SCC 355
(iv) Arvind Singh Vs. State of Bihar reported in (2001) 6 SCC
407.
10 CRI.APPEAL NOs.271-14 & 2 Ors
12. Mr Chatterji, learned counsel for the appellant/accused by way
of alternative submissions, urged that the sentence awarded against the
appellant/accused husband Achyut may be reduced to 10 years for the
offence punishable under section 304B of I.P.C. without disturbing the
sentence passed against all the accused under section 498A read with
section 34 of I.P.C. in view of the peculiar facts of the case on hand by
placing his reliance on the judgment of Division Bench of this Court
(Criminal Appeal No. 135/2014 with connected appeal) to which one of us
was party (V.K. Jadhav, J.).
13. Per contra, Mrs P.V. Diggikar, learned A.P.P. for the State
forcefully submitted that death of deceased - Sunita is within seven years
of her marriage and soon before her death, she was subjected to
harassment and cruelty to meet unlawful demand of dowry and it was
unnatural death. Therefore, presumption under section 113-B of the
Indian Evidence Act comes into picture. The prosecution has proved the
offences against the accused by producing cogent and impeachable
piece of evidence. The witnesses have categorically stated in respect of
harassment and cruelty to late Sunita to meet unlawful demand of dowry in
a cohesive manner. She submitted that the accused were absent from the
scene. It is brought on record through the evidence of Doctor that the
deceased has resisted the assault, and therefore, her fingers and nails
were blueished which speaks that accused had assaulted the deceased.
The conduct of the accused needs to be taken into account. They did not
inform to the Police and even to the relatives of the deceased soon after
the incident. They did not lodge any report. All these facts lead to the
11 CRI.APPEAL NOs.271-14 & 2 Ors
conclusion that death was caused due to throttling when Sunita was in the
custody of the accused. She was pregnant and hoping dream of happy life
after birth of a child. Her sudden death has caused shock and mental
agony to the parents of deceased.
14. Mrs Diggikar, learned A.P.P. submitted that Sunita met with
unnatural death in the matrimonial house. No explanation is coming forth
from the side of the accused as contemplated under section 106 of the
Indian Evidence Act, as to how the incident had occurred. She submitted
that even though there are minor inconsistencies in the evidence of related
witnesses, not any way fatal to the prosecution. The evidence of
prosecution witnesses is consistent, coherent and compact.
15. Mrs P.V. Diggikar, learned counsel submitted that the learned
trial Judge has convicted accused/Achyut (husband) of the deceased
under section 304B of I.P.C. but acquitted remaining three accused
persons/ in-laws without assigning any sufficient reasons. The error on the
facts committed by the learned trial Judge needs to be corrected by this
court by allowing the appeal preferred by the State against the acquittal of
original accused Nos. 2 to 4. It is a case of dowry death under section
304B of I.P.C. The deceased Sunita was residing in the matrimonial
house. At the time of incident, accused and her in-laws were present.
Sunita was subjected to cruelty and harassment to meet unlawful demand
of dowry soon before her death and as such, all of them need to be
convicted under section 304B of I.P.C. In view of evidence produced by
the prosecution machinery, original accused Nos. 2 to 4 need not be given
12 CRI.APPEAL NOs.271-14 & 2 Ors
different treatment on the same set of evidence and facts.
16. Mrs Diggikar, learned A.P.P. for the State invited our attention
to the sentence awarded by the learned trial Judge against all the accused
under section 498A read with section 34 of I.P.C. She submitted that the
sentence awarded by the learned trial Judge against the accused under
section 498A read with section 34 of I.P.C. is very much low having regard
to the nature of offence. It is an offence against the society and no
leniency should be shown to such culprits by awarding lessor punishment.
She urged that the appeal preferred by the State for enhancement of
sentence may be allowed and appropriate sentence may be awarded
against all the accused under section 498A read with section 34 of I.P.C.
17. To buttress the argument, Mrs Diggikar, learned A.P.P. for the
State has placed her reliance on following bunch of citations :-
(i) Trimukh Maroti Kirkan Vs. State of Maharashtra reported in
2006 AIR SCW 5300
(ii) Davinder Singh Vs. State of Punjab reported in 2014
Cri.L.J. 4065 (SC)
(iii) Harku Vs. State of Rajasthan reported in 1994 Cr.L.J. 2141
(Rajasthan High Court)
(iv) Ramesh Vithal Patil Vs. State of Karnataka and others
reported in 2014 (2) Crimes 227 (SC)
(v) M. Narayan Vs. State of Karnataka reported in 2015 Cri.L.J.
3302 (SC)
18. Before making exercise of appreciating the evidence of
prosecution witnesses and witnesses examined by defence side as well, it
13 CRI.APPEAL NOs.271-14 & 2 Ors
would be appropriate to place on record few admitted facts which are
material and important.
19. The marriage of accused No.1-Achyut was solemnized with
Sunita on 08.03.2010, and after marriage, she went to matrimonial house
for cohabitation at Dhanegaon. She was residing in matrimonial house
along with her husband and in-laws. Accused No. 4 - Satyashila @ Pinti
Bapu Bhosle is a married sister-in-law of deceased Sunita. Satyashila
being widow is residing with her parents and brother at Dhanegaon. After
some period of cohabitation at Dhanegaon, accused No. 1 along with his
wife Sunita and sister Satyashila went to Pune in search of job and started
residing there. Again, all of them came back to village Dhanegaon. At the
time of incident, deceased Sunita was residing along with her husband
and in-laws at village Dhanegaon. Her death took place in the matrimonial
house when she was jointly residing with her husband and in-laws. The
death of Sunita took place on 03.03.2012. After having necessary
calculation from the date of marriage of Sunita and date of her death, it is
noticed by us that her death occurred within two years from the date of her
marriage.
20. We have considered the submissions of Mr Chatterji, learned
counsel for the accused and Mrs Diggikar, learned A.P.P. for the State.
We have also gone through the record and proceedings of the trial court
as well as perused the evidence of prosecution witnesses and defence
witnesses as well with able assistance of defence and the prosecution
side.
14 CRI.APPEAL NOs.271-14 & 2 Ors
21. Deepak Londhe happened to be brother of the deceased, who
has lodged the FIR with Jamkhed Police Station about unnatural death of
his sister Sunita. On that basis, Crime bearing No.23/2012 came to be
registered at Jamkhed Police Station for the offences punishable under
section 304B, 498A, 323, 504 and 506 read with section 34 of I.P.C. It
would be appropriate to reproduce the names of accused with relation to
the deceased for convenience.
(i) Accused No. 1 - Achut Bhaskar Kale - Husband
(ii) Accused No. 2 - Shakuntala Bhaskar Kale - Mother-in-law
(iii) Accused No. 3 - Bhaskar Laxman Kale - Father-in-law
(iv) Accused No. 4 - Satyashila @ Pinti Bapu Bhosle - Sister-in-law
(widow)
22. On careful scrutiny of record and proceedings and evidence, it
is noticed that the prosecution machinery has examined in all nine
witnesses to prove the charges levelled against the accused. Whereas the
defence has examined three witnesses in support of defence put forthwith
by accused No. 1 regarding his so-called stay at Pune/workplace at the
time of death of his wife.
23. Following are the witnesses examined by prosecution
machinery -
(i) P.W. No. 1 - Deepak Madhukar Londhe vide Exh.22
( first informant/ brother of the deceased)
(ii) P.W. No. 2 - Muktabai Madhukar Londhe vide Exh.29
(mother of the deceased)
15 CRI.APPEAL NOs.271-14 & 2 Ors
(iii) P.W. No. 3 - Pandurang Sandipan Kokate vide Exh. 43
(Panch witness on inquest and panchnama of
scene of evidence)
(iv) P.W. No. 4 - Manik Abasaheb Ghadge Vide Exh. 46
(relative of accused, who played role for fixing
marriage of Sunita with Achyut)
(v) P.W. No. 5 - Mir Khan Pathan vide Exh. 47
(A.S.I./ Author of AD No.11/2012)
(vi) P.W. No. 6 -Rupesh Madhukar Londhe vide Exh. 52
(another brother of deceased)
(vii) P.W. No. 7 - Maruti Jadhav vide Exh. 54
(scribe of FIR)
(viii) P. W. No. 8 - Dr. Yuraj H. Kharade vide Exh. 57
(Medical Officer, who conducted postmortem
examination and issued postmortem report)
(ix) P.W. No. 9 - Raghunath Nachan vide Exh. 58
(A.P.I./ Investigating Officer)
24. Whereas, the defence has examined following three
witnesses :-
(i) D.W. No. 1 - Rashid Chand Shaikh vide Exh.79
(labour working in the field of accused)
(ii) D.W. No. 2 - Santosh Shahaji Kale vide Exh. 80
(colleague of accused No.1)
(iii) D.W. No. 3 - Tarabai Bharat Raut vide Exh. 83
(resident of same locality of Gharkul)
25. It is necessary to look into the medical evidence in order to find
out whether Sunita met with unnatural death though not much disputed by
the defence side.
26. P.W. No. 8 - Dr. Yuvraj Kharade, vide Exh. 57 is a Medical
Officer, who has conducted postmortem examination along with Dr. Sanju
16 CRI.APPEAL NOs.271-14 & 2 Ors
Mundhe on the dead body of Sunita on 04.03.2012. His evidence
discloses that he has noticed the injuries as described in column No. 17 of
the postmortem report. There were abrasion over lenier aspect of tongue,
CLW over lower lip 2 X 2 cm inner aspect, finger or thumb nail mark over
left and right side of midline of neck 2 X .2 cm., nail mark over hyorid
valve vertical line 2 X .02 cm., bruises below left and right eye 2 X .2 cm.,
bruises over right cheek 3 X 3 cm. He stated that all injuries were
antemortem. He further disclosed that when he opened trakia, he noticed
echymosis (blood block) over neck muscle due to the throttling the said
impact is noticed. Both hands/finger bluish and flexed which indicates that
deceased was defending assault before her death. Eyes were closed,
pupil semi-dilated fixed and not reacting to light, tongue was present inside
mouth. Blood coming through right side of mouth. Redish is discharged
through nostrils. The uterus congested and contents youlksac and fetal
poll and it was 10 weeks pregnancy. There was no smelling to the
contents of poison found in the stomach. According to the opinion
expressed by Dr. Yuvraj kharade and agreed by Dr. Sanju Mundhe that
death of deceased was due to throttling as per the observations made in
the post mortem report and opinion given in the provisional cause of
death certificate vide Exh.59 and post mortem report vide Exh. 58.
27. Dr. Yujraj Kharade has disagreed with the suggestions given by
the defence in the cross-examination that a person affected by mental
disorder if in the said inflection of throttling himself may result injuries as
described in column No. 17 of the post mortem report. As such, that
possibility has been ruled out in unambiguous words by Dr. Yuvraj
17 CRI.APPEAL NOs.271-14 & 2 Ors
Kharade. It was attempted by the defence to show that though dead body
was brought in the hospital during night by the Police at 12.00 midnight,
the post mortem was conducted on next day and there was delay in
postmortem examination. The key of the room where the dead body was
kept, was with the Police. There is medical protocol for conducting post
mortem examination in a medico legal case. The Government doctors
need to follow the medical protocol and circulars and the guidelines issued
by the Government from time to time. Therefore, we do not find any force
in that contentions raised by the defence side.
28. Having regard to the medical evidence discussed above, it is
very much clear that Sunita met with unnatural death within two years from
the date of her marriage. It is not disputed by the defence that Sunita was
found dead in her matrimonial house at Dhanegaon. In that background, it
is very much necessary to see the essential ingredients of section 304-B
of I.P.C.
29. Section 304B was incorporated in the I.P.C. by the Dowry
Prohibition (Amendment) Act, 1986 (Act 43 of 1986). In case of Preet
Pal Singh Vs. State of U.P. and Anr. reported in 2021 (4) Mh.L.J. Cri.
509, the Hon'ble Supreme Court has held as under :-
28. Section 304B was incorporated in the Indian Penal Code by
the Dowry Prohibition (Amendment) Act, 1986 (Act 43 of 1986).
The object of the amendment was to curb dowry death. Section
304B does not categorize death, it covers every kind of death
that occurs otherwise than in normal circumstances. Where the
other ingredients of Section 304B of the Code are satisfied, the
18 CRI.APPEAL NOs.271-14 & 2 Ors
deeming fiction of Section 304B would be attracted and the
husband or the relatives shall be deemed to have caused the
death of the bride.
29. The essential ingredients for attraction of Section 304B
are:
(i) the death of woman must have been caused in unnatural
circumstances.
(ii) the death should have occurred within 7 years of marriage.
(iii) Soon before her death the woman must have been
subjected to cruelty or harassment by her husband or his
relatives and such cruelty or harassment must be for or in
connection with the demand for dowry, and such cruelty or
harassment is shown to have been meted out to the woman
soon before her death.
30. The legislative intent of incorporating section 304-B was to curb
the menace of dowry death with a firm hand. In dealing with the cases
under section 304-B, the legislative intent must be kept in mind. Once
there is material to show that the victim was subjected to cruelty or
harassment before death, there is a presumption of dowry death and the
onus is on the accused in-laws to show otherwise.
31. The evidence of P.W. No. 1 - Deepak Madhukar Londhe
(brother of the deceased) vide Exh.22, P.W. No. 2 - Muktabai Madhukar
Londhe vide Exh. 29 (mother of deceased), P.W. No. 4, Manik Abasaheb
Ghadge vide Exh. 54, (relative of accused) and P.W. No. 6 - Rupesh
Madhukar Londhe vide Exh.52 (another brother of deceased) are the
important witnesses. In order to find out whether the deceased Sunita was
19 CRI.APPEAL NOs.271-14 & 2 Ors
subjected to harassment and cruelty to meet the unlawful demand of
dowry soon before her death.
32. On perusing the record and proceedings more particularly, the
occurrence report and Khabar vide Exh.48 and 49 and AD report vide Exh.
50, it is noticed that one Mr Ashok Chavan, Police Patil of village
Dhanegaon has informed the Police that deceased Sunita died after
consuming poison. On that basis, AD report vide Exh. 56 has been
registered. However, that reporting by Police Patil about death of Sunita by
consuming poison appears to be factually incorrect in view of medical
evidence produced by the prosecution agency through P.W. No. 8
Dr. Yuvraj Kharade. P.W. No. 8, Dr. Yuvraj Kharade has stated in
unambiguous words that it was not a case of death by poisoning. It was a
case of death by throttling. As such, no more weightage can be given to
khabar given by village Police Patil.
33. The testimony of P.W. No. 1 - Deepak Londhe (brother of the
deceased and first informant) reveals that deceased was cohabiting in
house of accused Nos. 1 to 4, who were residing jointly. They had given
dowry of Rs. 1,00,000/- and two tola gold to the accused in marriage of
Sunita, but they were not satisfied. Accused started demanding cash
amount and gold ring. Whenever Sunita used to visit her parents house,
she was complaining about the harassment and cruelty, which was being
caused to her at the hands of accused to meet their unlawful demand of
cash amount and gold. He has further disclosed that after first festival of
Gudi Padva, when he visited the house of Sunita, all the accused made
20 CRI.APPEAL NOs.271-14 & 2 Ors
demand of gold ring and also abused Sunita in his presence. He tried to
convince to the accused that they have spent huge amount in the
marriage and unable to satisfy the demand. However, attitude of the
accused was not changed. He also disclosed about one incident when
deceased was residing along with her husband and sister-in-law
Satyashila at Pune when they tried to set Sunita on fire, but there was no
complaint. After that incident, all of them came back to Dhanegaon and
started residing there. He has disclosed that accused were giving mental
and physical torture to deceased Sunita. It is further evidence of P.W. No.
1 - Deepak Londhe that before 10 to 15 days of the incident, his mother
along with another brother (P.W. No. 6 - Rupesh Madhukar Londhe) had
been to the matrimonial house of Sunita. He has disclosed that accused
Nos. 2 and 4 scolded his mother and stated that what would happen if
Sunita would be killed. They would perform second marriage of accused
No. 1 Achyut and they would get more amount. As such, mother of Sunita
became afraid and requested Sunita to accompany her. But Sunita
refused to join her on the pretext that she was pregnant and after her
delivery, things would be alright and after 10 to 15 days, death of Sunita
had taken place.
34. P.W. No. 1- Deepak Londhe was tried to be questioned on
account of not lodging any complaint with the Police about harassment
and cruelty which was being extended to the deceased Sunita. We cannot
overlook that in matrimonial cases, parties do not want to rush to the
Police Station. There is always apprehension that if the matter is reported
to the Police, the family relations would be spoiled. As such, the testimony
21 CRI.APPEAL NOs.271-14 & 2 Ors
of P.W. No. 1 - Deepak Londhe cannot be doubted only because, he or
his family members did not lodge any complaint against the accused at the
relevant point of time though Sunita was subjected to harassment and
cruelty to meet the unlawful demand of money and gold ring. The defence
has further attempted to establish that the marriage of Sunita was
solemnized with accused No.1 against her wish and she was not happy.
No such material is coming forth through the cross-examination of
P.W.No. 1 - Deepak Londhe to support that line of defence. On careful
scrutiny of the evidence of P.W. No. 1 -Deepak, it is found that his
evidence is trustworthy and reliable. He has disclosed in clear words that
his sister Sunita was subjected to harassment and cruelty at the hands of
her husband and in-laws to meet unlawful demand of money and gold ring
soon before her death. He has disclosed in detail and supported to the
narration given in the FIR which is vide Exh. at 24.
35. Now, coming to P.W. No. 2 - Muktabai Madhukar Londhe
(mother of the deceased). Her evidence is supporting to P. W. No. 1 -
Deepak. She has corroborated the testimony of her son Deepak by stating
all the details as to how her daughter Sunita was subjected to harassment
and cruelty at the hands of her husband and in-laws to meet the unlawful
demand of money and gold ring. She has disclosed that her daughter
Sunita was subjected to beating and harassment for bringing less amount
of dowry in the marriage. She has even disclosed about her visit to
Sunita's matrimonial house just 8 days prior to the incident. She has
disclosed that mother-in-law and sister-in-law of Sunita asked her as to
what would happen if they would kill Sunita. They would perform second
22 CRI.APPEAL NOs.271-14 & 2 Ors
marriage of Achyut and may get enough dowry amount. P.W. No. 2 -
Muktabai apprehended danger to the life of her daughter Sunita and asked
Sunita to accompany her. But Sunita refused to join her as she was
pregnant. After 8 days, Sunita met with unnatural death in her matrimonial
house. By way of cross-examination, she has admitted that the family of
the accused is financially sound whereas economical condition of her
family is weak. That admission is not any way helpful to the defence in
absence of any further material so as to discard the evidence of P.W. No.
2 - Muktabai, who has stated in detail about harassment and cruelty
caused to her daughter Sunita for unlawful demand of money soon before
her death at the hands of accused. The testimony of P.W. No. 2 - Muktabai
is found consistent with the testimony of P.W. No. 1 - Deepak and goes
hand in hand.
36. P.W. No. 4 - Manik Ghadge vide Exh.46 happened to be
relative of the accused. He was present at the time of settlement of
marriage between Achyut and Sunita as well as present at the time of
wedding and at the time of funeral of Sunita. The testimony of P.W. No. 4 -
Manik Ghadge is therefore, important and crucial for both the sides. On
perusing the testimony of P. W. No. 4 - Manik Ghadge, it is evident that
marriage of Sunita was solemnized with accused No. 1 on 08.03.2010 as
per tradition. In the said marriage, dowry of Rs.1,00,000/- and two tolas
gold was given to the accused. Sunita went to matrimonial house after the
marriage and started cohabiting at village Dhanegaon. She was residing
with her husband - Achyut, parents, in-laws Shakuntala, Bhaskar and
sister in-law Satyashila. He was asking to Muktabai P.W. No. 2 (mother of
23 CRI.APPEAL NOs.271-14 & 2 Ors
the deceased) about the married life of Sunita and came to know that
accused were harassing to Sunita and she was subjected to cruelty and ill
treatment to meet the demand of money and gold. He was also asking
Sunita on phone about her married life and came to know that Sunita was
subjected to harassment at the hands of the accused to bring
Rs. 1,00,000/- and gold ring. She was subjected to beating at the hands of
the accused. He has also disclosed about one incident occurred at Pune
when Sunita was residing with her husband and sister-in-law. It was an
attempt to set Sunita ablaze after pouring kerosene, but she rescued
herself. He has further disclosed that even after returning back to
Dhanegaon from Pune, the accused continued their harassment and ill
treatment to Sunita to fulfill demand of gold and money. He has also
disclosed that he himself with other relatives held meeting with accused
and persuaded them to stop such kind of cruelty and harassment to
Sunita. He has also disclosed about the incident occurred just 8 days prior
to the incident when Sunita's mother - Muktabai had been to her house
and also corroborated the version of P.W. No. 2 - Muktabai. He has further
disclosed that he came to know from P.W. No. 1 - Deepak Londhe about
death of Sunita on 03.03.2012 and he rushed to Dhanegaon with his
relatives. He noticed that Sunita was lying dead in the house and there
were scratches on her neck, hairs were scattered.
37. While facing cross-examination, P.W. No. 4 - Manik Ghadge
has admitted that there was a discussion about the death of Sunita
amongsts themselves and they suspected that accused are responsible
for death of Sunita and they went to Jamkhed Police Station along with 25
24 CRI.APPEAL NOs.271-14 & 2 Ors
to 50 relatives when Deepak Londhe lodged the FIR. These admissions
are not any way sufficient to discard the testimony of P.W. No. 4 - Manik
Ghadge. It is obvious that when unnatural death takes place in the family
and that too a newly married daughter, the relatives and family members
would sit together and discuss. It is natural phenomenon and it cannot be
said to be plan to implicate the accused in a case.
38. It was attempted to show P.W. No. 4 - Manik Ghadge could not
tell month and year when Sunita disclosed him about her harassment at
the hands of the accused. He did not lodge complaint against the accused
when he came to know about ill treatment caused to Sunita. Again, these
answers are not any way fatal to take doubt on the testimony of P.W. No. 4
- Manik Ghadge. He is a witness right from the settlement of marriage up
to the wedding played role. He is relative of both the sides. There is no
enmity between the family of accused and this witness P. W. No. 4 -
Manik Ghadge. There is no reason for P.W. No. 4 - Manik Ghadge to
depose against the accused. The testimony of P.W. No. 4 - Manik Ghadge
appears to be trustworthy and reliable.
39. P.W. No. 6 - Rupesh Londhe is another brother of the
deceased. He has also corroborated the testimony of P.W. No. 1 - Deepak
and PW2 - Muktabai. He is a witness, who accompanied his mother
Muktabai, who visited house of Sunita just 8 to 10 days before the death of
Sunita. In the earlier part of his testimony, he has also stated that all the
accused persons started harassment and ill treatment to his sister Sunita
on account of short amount of dowry and gold quantity. So far as the
25 CRI.APPEAL NOs.271-14 & 2 Ors
incident prior to 8 to 10 days of the death of Sunita, he has categorically
stated what had happened and narrated by his mother P.W. No. 2 -
Muktabai. He has disclosed in the same words as to how accused
Shakuntala and accused Satyashila behaved with them and threatened to
kill Sunita. He has also disclosed about the incident which had occurred at
Pune when Sunita was attempted to set her on fire. The testimony of P.W.
No. 6 - Rupesh is put to question that he did not go personally to Pune and
his version on the point of incident of setting Sunita on fire appears to be
hearsay. Even if we discard that piece of evidence, we cannot discard his
entire testimony. His evidence on the point of harassment and cruelty
caused by the accused just before 8 to 10 days of the incident is found
trustworthy and goes hand in hand with the version of P.W. No. 2 -
Muktabai when both of them had been to the house of Sunita.
40. It was attempted by the defence to show that till funeral of
Sunita, no complaint was lodged against the accused about ill treatment
and cruelty to Sunita to meet unlawful demand. The FIR came to be
lodged after one day, and after discussion with the family members. Sunita
met with unnatural death on 03.03.2012 and FIR came to be lodged on
04.03.2012 after the funeral. The mental condition of family members need
to be considered. They had lost their dear daughter within two years of her
marriage. Certainly, they must be under shock and grief. It cannot be any
way termed as unnatural conduct on the part of the family of deceased to
lodge the FIR after the funeral. There is absolutely no delay in lodging of
FIR in the set of facts and circumstances of the case in hand.
26 CRI.APPEAL NOs.271-14 & 2 Ors
41. Upon careful scrutiny of the evidence above referred, four
important witnesses examined by the prosecution, it is very much clear
that deceased Sunita was subjected to harassment and cruelty at the
hands of her husband and in-laws to meet unlawful demand of dowry and
gold soon before her death. Sunita met with unnatural death in matrimonial
house within two years from the date of her marriage. Certainly, the
presumption under section 113-B of the Evidence Act would come into
picture. In case of Davinder Singh Vs. State of Punjab (supra), it is held
by the Hon'ble Supreme Court that if death of a married woman had taken
place within seven years of marriage due to burn injuries and not in normal
circumstances, the presumption under section 11-B of the Evidence Act
would come into picture.
42. The conjoint reading of section 113-B of the Evidence Act and
section 304-B of the I.P.C. shows that there must be material to show that
soon before her death, the victim was subjected to cruelty or harassment.
The prosecution has to rule out the possibility of a natural or accidental
death so as to bring it within the purview of "death occurring otherwise
than in normal circumstances". The expression "soon before" is very
relevant where section 113-B of the Evidence Act and section 304B of
I.P.C. are pressed into service.
43. Having regard to the above provisions, if evidence of above
referred four material witnesses is taken into account, the prosecution has
been successful in proving that deceased Sunita was subjected to cruelty
and harassment at the hands of the accused to meet unlawful demand of
27 CRI.APPEAL NOs.271-14 & 2 Ors
money and gold soon before her death and she met with unnatural death
within two years from the date of marriage. Her unnatural death took place
in the matrimonial house when she was cohabiting with the husband and
in-laws. Therefore, presumption available under section 113-B of the
Evidence Act needs to be invoked in this case against the accused.
44. Now coming to evidence of defence witnesses examined by the
accused.
45. Mr Chatterji, learned counsel for the appellant/accused
submitted that defence witnesses are entitled to get equal treatment with
those of the prosecution witnesses by placing reliance in case of Jumni
and others Vs. State of Haryana (supra). In case of Jumni and others
Vs. State of Haryana, the Hon'ble Supreme Court has held that the
approach of the court should not be such as to pick holes in defence case.
The defence evidence should be tested like any other testimony, always
keeping in mind that a person is presumed innocent until found guilty.
46. The Hon'ble Supreme Court has reiterated its view taken in
Jayantibhai Bhenkarbhai Vs. State of Gujarat reported in (2002) 8
SCC 165, wherein it is held as under :-
23. On the standard of proof, it was held in Mohinder Singh vs.
State that the standard of proof in regard to a plea of alibi must
be the same as the standard applied to the prosecution evidence
and in both cases it should be a reasonable standard. Dudh Nath
Pandy goes a step further and seeks to bury the ghost of disbelief
that shadows alibi witnesses, in the following words: (Dudh Nath
case, SCC p. 173, para 19)
28 CRI.APPEAL NOs.271-14 & 2 Ors
"19....Defence witnesses are entitled to equal treatment with
those of the prosecution. And, courts, ought to overcome their
traditional, instinctive disbelief in defence witnesses. Quite often,
they tell lies but so do the prosecution witnesses."
In view of the legal position made clear by the Hon'ble Supreme
Court, certainly, we have to give equal treatment to the witnesses
examined by the defence by applying reasonable standard.
47 D.W. No. 1 - Rashid Chand Shaikh seems to be an agricultural
labour working in the field of accused. He stated that he had an occasion
to talk with Sunita. He had heard from Sunita once that her marriage with
Accused/Achyut Kale was performed against her will. This piece of
evidence of D.W. No. 1 - Rashid Chand Shaikh, if assessed carefully, the
first question comes, how Sunita, a lady member of the family could tell
such family matters to agricultural labour working in her field. He is that
way an outsider for the family. The married lady would tell about her indoor
things to a person who could be close to her and not outsider, who is an
agricultural labour. By applying reasonable standard and common
prudence that piece of evidence of D.W. No.1 - Rashid Chand Shaikh
appears to be unworthy of credence.
48. He has further disclosed that on 03.03.2012 at about 2.00 p.m.
he had been to the shop of one Kale to purchase bidi when he noticed that
Sunita was talking with a person, who came on motorbike. He asked to
Sunita, who is that person with whom she is talking. She has replied that
said person is from her maternal village. Again the version of D.W. No. 1 -
29 CRI.APPEAL NOs.271-14 & 2 Ors
Rashid Chand Shaikh appears to be unreliable if reasonable standard is
applied. D.W. No. 1 Rashid Chand Shaikh is not a family member and as
such, he had no reason to ask any question to Sunita in this regard. The
testimony of D.W. No. 1 - Rashid Chand Shaikh is also questioned
whether he is a resident of Dhanegaon in absence of any documentary
evidence. He has also admitted that he has not narrated said fact to her
parents that Sunita informed him that her marriage was performed with
accused No.1/Achyut against her will. It raises serious doubt about his
credibility. We are not convinced to accept the testimony of D.W. No. 1 -
Rashid Chand Shaikh.
49. Now coming to evidence of D.W. No. 2 - Santosh Shahaji Kale.
He stated that on 03.03.2012 i.e. on the date of incident, he along with
accused No. 1/Achyut were installing advertisement board and hoarding at
Thergaon. After returning to the home, Achyut received a phone from
Laxman Kale of Dhanegaon that his wife Sunita is suffering from illness
and he should start immediately. Accordingly, he along with accused No.1/
Achyut and other friends left by private vehicle and reached to Dhanegaon
at about 5.00 p.m. in the next day morning.
50. It is brought on record through the cross-examination of D.W.
No. 2 - Santosh Kale that no documentary evidence is produced by this
witness in order to corroborate his version that both of them were working
together and on the date of incident, they were at Thergaon and busy in
their work. There is no document to show that accused No.1/Achyut was
assisting in his work at Pune. In view of that quality of evidence of D.W.
30 CRI.APPEAL NOs.271-14 & 2 Ors
No. 2 - Santosh Kale, it would not be safe to rely upon that kind of
evidence.
51. D.W. No. 3 - Tarabai Raut is stated to be neighbour of accused
and resident of same Gharkul locality. She has stated that on the last
Sankrat festival, Sunita has informed her that her marriage was performed
with accused No.1/Achyut against her will. The same question poses, how
the married lady could tell her indoor things to an outsider, who has no
concern with her family. As such, that piece of evidence of D.W. No. 3 -
Tarabai Raut cannot be believable. She has further disclosed that on
03.03.2012 i.e. on the date of incident, she had seen Sunita while talking
with a person of about 25-30 years of age and heard that said person was
telling Sunita, Chal-chal, and thereafter, they went to Gharkul. This
evidence of D.W. No. 3 - Tarabai Raut is found inconsistent with the
evidence of D.W. No. 1 - Rashid Chand Shaikh. According to D.W. No.1 -
Rashid Chand Shaikh, he noticed Sunita while talking with a person near
the shop of one Kale whereas this D.W. No. 3 - Tarabai Raut is stating
that she had seen deceased Sunita while talking with a person near her
house. There is no connecting evidence that shop of Kale and house of
Sunita and this witness Tarabai Raut are close so that they could witness
the things. On careful scrutiny of evidence of D.W. No. 3 - Tarabai Raut,
her testimony is found unworthy credence. She is found to be a brought up
witness.
52. Having regard to the appreciation of above referred three
defence witnesses, it is clear that none of the witnesses examined by
31 CRI.APPEAL NOs.271-14 & 2 Ors
defence side are reliable and trustworthy. Their evidence is unworthy of
credence and cannot be acted upon.
53. P.W. No. 5 - Mir Khan Pathan vide Exh. 47 is an author of A.D.
lodged by village Police Patil Mr Ashok Chavan of Dhanegaon. P.W. No. 9
- Raghunath Nachan vide Exh. 58 is a A.P.I./Investigating Officer. He has
stated about his procedural part of investigation and filing of charge sheet
in view of the incriminating evidence collected against the accused.
54. In case of Tomaso Bruno and Anr. Vs. State of Uttar
Pradesh (supra), it is held by the Hon'ble Supreme Court that the
presumption under section 114 of the Evidence Act is only permissible
inference and not a necessary inference. In every case based upon
circumstantial evidence, the question that needs to be determined whether
the circumstances relied upon by the prosecution are proved by reliable
and cogent evidence and whether all the links in the chain of circumstance
are complete so as to rule out the possibility of innocence of the accused.
The conviction can be based solely on the circumstantial evidence, but it
should be tested on the touchstone of the law relating to the circumstantial
evidence.
55. In the above cited case, the CCTV footage and call records
which was the best of piece of evidence was withheld by the prosecution,
therefore, the Hon'ble Supreme Court was pleased to draw an adverse
inference against prosecution in view of section 114 (g) of the Evidence
Act, 1872 and pleased to acquit the accused from the charge of murder
under section 302 of I.P.C. The facts of the cited case and the facts of the
32 CRI.APPEAL NOs.271-14 & 2 Ors
case in hand are quite distinguishable.
56. In the case in hand, the prosecution has been successful in
proving that the deceased married woman met with unnatural death within
two years of her marriage. She was subjected to harassment and cruelty
to meet unlawful demand of dowry at the hands of the accused soon
before her death. The death of deceased Sunita falling in the category of
unnatural death occurred in her matrimonial house when she was
cohabiting with her husband and in-laws. No plausible explanation is
offered by the accused to explain under what circumstances, Sunita met
with that. It is a case of dowry death as defined under section 304B of
I.P.C. Such crimes are generally committed in complete secrecy inside
house. Nature and amount of evidence required to establish charge
cannot be of same degree as required in other cases of circumstantial
evidence. Silence of inmates of house about cause of death would
become an additional link in chain of circumstances.
57. In case of Trimukh Maroti Kirkan Vs. State of Maharashtra
(supra), the Hon'ble Supreme Court in para No. 11 has observed as under :-
11. The demand for dowry or money from the parents of the
bride has shown a phenomenal increase in last few years.
Cases are frequently coming before the Courts, where the
husband or in-laws have gone to the extent of killing the bride
if the demand is not met. These crimes are generally
committed in complete secrecy inside the house and it
becomes very difficult for the prosecution to lead evidence.
No member of the family, even if he is a witness of the crime,
would come forward to depose against another family
member. The neighbours, whose evidence may be of some
33 CRI.APPEAL NOs.271-14 & 2 Ors
assistance, are generally reluctant to depose in Court as they
want to keep aloof and do not want to antagonize a
neighbourhood family. The parents or other family members
of the bride being away from the scene of commission of
crime are not in a position to give direct evidence which may
inculpate the real accused except regarding the demand of
money or dowry and harassment caused to the bride. But, it
does not mean that a crime committed in secrecy or inside
the house should go unpunished.
12. If an offence takes place inside the privacy of a house
and in such circumstances where the assailants have all the
opportunity to plan and commit the offence at the time and in
circumstances of their choice, it will be extremely difficult for
the prosecution to lead evidence to establish the guilt of the
accused if the strict principle of circumstantial evidence, as
noticed above, is insisted upon by the Courts. A Judge does
not preside over a criminal trial merely to see that no innocent
man is punished. A Judge also presides to see that a guilty
man does not escape. Both are public duties. (See Stirland v.
Director of Public Prosecution 1944 AC 315 quoted with
approval by Arijit Pasayat, J. in State of Punjab Vs. Karnail
Singh (2003) 11 SCC 271). The law does not enjoin a duty
on the prosecution to lead evidence of such character which
is almost impossible to be led or at any rate extremely difficult
to be led. The duty on the prosecution is to lead such
evidence which it is capable of leading, having regard to the
facts and circumstances of the case. Here it is necessary to
keep in mind Section 106 of the Evidence Act which says that
when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.
Illustration (b) appended to this section throws some light on
the content and scope of this provision and it reads: 2003 AIR
SCW 4065
34 CRI.APPEAL NOs.271-14 & 2 Ors
(b) A is charged with traveling on a railway without ticket.
The burden of proving that he had a ticket is on him."
Where an offence like murder is committed in secrecy
inside a house, the initial burden to establish the case
would undoubtedly be upon the prosecution, but the
nature and amount of evidence to be led by it to establish
the charge cannot be of the same degree as is required
in other cases of circumstantial evidence. The burden
would be of a comparatively lighter character. In view of
Section 106 of the Evidence Act there will be a
corresponding burden on the inmates of the house to
give a cogent explanation as to how the crime was
committed. The inmates of the house cannot get away by
simply keeping quiet and offering no explanation on the
supposed premise that the burden to establish its case
lies entirely upon the prosecution and there is no duty at
all on an accused to offer any explanation.
58. Having regard to the recent citation of the Hon'ble Supreme
Court in case of Preet Pal Singh Vs. State of U.P. and Anr. (supra),
wherein it is held that where the ingredients of section 304B of I.P.C. are
satisfied, the deeming fiction of section of 304B would be attracted and the
husband or the relatives shall be deemed to have caused the death of the
bride/married woman.
59. In the foregoing paras, it is held by us that Sunita met with
unnatural death within two years of her marriage. It was a custodial death.
Soon before her death, she was subjected to cruelty at the hands of her
35 CRI.APPEAL NOs.271-14 & 2 Ors
husband and in-laws in connection with the demand for dowry. The
presumption as provided under section 113-B of the Evidence Act comes
into picture.
60. Having regard to the entirety of material and careful scrutiny of
the witnesses examined by the prosecution machinery and defence as
well, we arrived at conclusion that the prosecution machinery has been
successful in proving the guilty of all accused punishable under section
304B and 498A read with section 34 of I.P.C. It is a case of custodial
death. She was four weeks pregnant and dreaming happy life after having
baby, but unfortunately, met with unnatural death in matrimonial house.
The accused are responsible for such custodial death in view of section
304B of I.P.C. coupled with provisions of section 113B of the Evidence
Act, 1872.
61. On perusing the impugned judgment and order passed by the
Additional Sessions Judge, Ahmednagar whereby accused No. 1/Achyut
alone came to be convicted under section 304B of I.P.C. The finding
recorded by the Additional Sessions Judge to that effect appears to be
erroneous on facts in view of the above referred evidence of prosecution
witnesses discussed in detail. The learned trial Judge has acquitted
accused Nos. 2 to 4 on same set of facts and evidence without assigning
sufficient reasons for carving out them from charge under section 304B of
I.P.C. On perusal of para No. 34 of the impugned judgment, learned trial
Judge after appreciating the evidence of prosecution witnesses and
36 CRI.APPEAL NOs.271-14 & 2 Ors
defence held that case against the accused No.1/Achyut under section
304B of I.P.C. is proved and he alone needs to be convicted. There are no
reasons why remaining accused Nos. 2 to 4 are not liable to be convicted
on the same set of facts and evidence. It is an error committed by the
learned trial Judge while recording the finding against the charge under
section 304B of I.P.C. The appeal preferred by the State against the
original accused Nos. 2 to 4 for their acquittal out of charge under section
304B of I.P.C. is found worthy and needs to be allowed. Late sunita was
cohabiting in the matrimonial house along with the husband and in-laws/
accused Nos. 2 to 4 when she met with unnatural death within two years
of her marriage. She was subjected to harassment at their hands to fulfill
unlawful demand of dowry. Accused Nos. 2 to 4 are equally liable to hold
guilty for the offence punishable under section 304B read with section 34
of I.P.C. They must be dealt with the same way as like accused
No.1/Achyut. We find merit in the appeal preferred by the State against the
acquittal of original accused Nos. 2 to 4/in-laws whereby they were set at
free from the charge under section 304B of I.P.C.
62. Now, coming to the another appeal preferred by State regarding
enhancement of sentence awarded against accused Nos. 1 to 4 under
section 498A read with section 34 of I.P.C. All the accused have been
convicted for the offence punishable under section 498A read with section
34 of I.P.C. and sentenced to suffer rigorous imprisonment for six months
and pay fine of Rs. 2,000/- (Rupees Two Thousand) each with default
clause.
37 CRI.APPEAL NOs.271-14 & 2 Ors
63. Having regard to the nature of offence and in view of the earlier
part of discussion and considering the facts of the case entirety, we are of
the considered view to upheld the same. No need to enhance the
sentence awarded against all the accused under section 498A read with
section 34 of I.P.C. There is no merit in the appeal for enhancement of
sentence.
64. Mr Chatterji, learned counsel for the appellant by way of
alternative submission has urged to reduce the sentence up to 10 years by
placing reliance on the recent judgment of the Division Bench of this Court
in Criminal Appeal No. 135/2014 with connected appeal dated 07.07.2021.
The Division Bench of this Court by taking into considerion peculiar facts of
the case was pleased to reduce the sentence awarded against the
accused No.1 and restricted to undergo rigorous imprisonment for 10
years with fine of Rs.5,000/- (Rupees Five Thousand) with default clause.
We do not find such circumstances to reduce the sentence awarded
against the appellant/accused No.1 under section 304B of I.P.C. to
undergo imprisonment for life. However, if sentence of accused Nos. 2 to 4
is restricted for 10 years rigorous imprisonment, it would meet the ends of
justice, in view of facts of the case in hand.
65. Having regard to the above reasons and discussion, we arrived
at conclusion to dismiss the appeal preferred by accused No. 1- Achyut
Bhaskar Kale vide Criminal Appeal No. 271/20214. Whereas, we are
convinced to allow the Criminal Appeal No. 683/2014 preferred by the
38 CRI.APPEAL NOs.271-14 & 2 Ors
State against the acquittal of original accused Nos. 2 to 4 from charge of
dowry death punishable under section 304B of I.P.C. We are equally
convinced to dismiss the appeal preferred by the State for enhancement of
sentence awarded against all the accused punishable under section 498A
of I.P.C.
ORDER
(A) The Criminal Appeal No. 271/2014 preferred by the Appellant/
Achyut s/o Bhaskar Kale is dismissed.
(B) The Criminal Appeal No. 325/2014 preferred by the Appellant/
State of Maharashtra is also dismissed.
(C) The Criminal Appeal No. 683/2014 preferred by the Appellant/
State of Maharashtra against original accused Nos. 2 to 4 is
allowed.
(D) Resultantly, the impugned Judgment and order of conviction
passed in Sessions Case No. 163/2012 by the Additional
Sessions Judge, Ahmednagar is modified as under :-
(i) Accused Nos. 1 to 4 are convicted for the offence punishable
under section 304B read with section 34 of I.P.C.
(ii) The sentence awarded against the Appellant/Achyut s/o
Bhaskar Kale to undergo imprisonment for life is confirmed.
(iii) Accused Nos. 2 to 4 shall undergo rigorous imprisonment for
ten years and pay fine of Rs. 1,000/- (Rupees One Thousand)
each, and in default, rigorous imprisonment for one month for
the offence punishable under section 304B read with section 34
of I.P.C.
39 CRI.APPEAL NOs.271-14 & 2 Ors
(iv) The sentence awarded by the Additional Sessions Judge,
Ahmednagar against all the accused for the offence punishable
under section 498-A read with section 34 of I.P.C. is hereby
confirmed.
(v) Accused Nos. 2 to 4 are on bail and they shall surrender before
the trial court to undergo the sentence in above terms.
(vi) The learned trial Judge is directed to issue conviction warrant
accordingly.
(E) The Appeals are disposed of accordingly.
[ SHRIKANT D. KULKARNI, J. ] [ V.K. JADHAV, J. ]
mta
