State Of Maha vs Bapurao Sopanrao Waghmare And Ors
2022 Latest Caselaw 5357 Bom

                                                     Cri-Appeal-548 and 631-2003.odt




             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 548 OF 2003

 1.    Bapurao Sopanrao Waghmare
       Died through L.Rs.
 1-A. Vaishali Bapurao Waghmare,
       Age: 37 years, Occu. Household

 1-B. Abhijeet S/o Bapurao Waghmare
      Age: 27 years, Occu. Education,

 1-C. Yash S/o Bapurao Waghmare,
      Age: 15 years, Occu. Education,
      Since Minor u.g. of applicant no.1-A
      Mother Vaishali Bapurao Waghmare,

          All R/o Shivajinagar, TPS Road,
          Parli Vaijnath, Dist. Beed

 2.       Rukminibai W/o Sopanrao Waghmare             - abated
          Since Died

 3.       Narsabai W/o Ramrao Salunke
          Age: 45 years, Occu: Labourer
          R/o Primiyar gate Colony,
          Milindnagar Zopadpatti Ghatkopar,
          Mumbai

 4.       Antyabai W/o Namdeo Waghmare
          Age: 35 years, Occu: Labourer
          R/o old Bus Stand Adilabad (A.P.)

 5.       Shantabai W/o Mahadeo Aamlpure
          Age: 32 years, Occu: Labourer
          R/o Dharmapuri Tal. Ambajogai,
          Dist. Beed                                   ... Appellants

                  Versus

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 The State of Maharashtra                                 ... Respondent
                                  ....
 Mr. Sachin S. Deshmukh, Advocate for appellants
 Mr. S. P. Sonpawale, APP for respondent-State
                                  ....

                                    WITH
                        CRIMINAL APPEAL NO. 631 OF 2003

 The State of Maharashtra
 Through Police Station Parli City,
 Parli Vaijnath, Dist. Beed                               ... Appellant

          Versus

 1.       Bapurao s/o Sopanrao Waghmare
          Age: 32 years, Occupation Service
          R/o Station Road, Parli, Tal. Parli
          Vaijnath, Dist. Beed

 2.       Rukhminbai w/o Sopan Waghmare
          Age: 60 years, Occupation Household,
          R/o Lohara, Tal Udgir, Dist. Latur

 3.       Antyabai w/o Namdeo Waghmare
          Age: 32 years, Occupation Labour,
          R/o Old Bus Stand, Adilabad (A.P.)

 4.       Narsabai w/o Ramrao Salunke,
          Age: 33 years, Occupation Labour,
          R/o Primiyas Gate Company,
          Milind Nagar Zopadpatti,
          Ghatcopar, Mumbai

 5.       Shantabai w/o Mahadeo Aamlpure,
          Age: 32 years, Occupation: Labour,
          R/o Dharmapur, Tal. Ambajogai,
          District Beed                                   ... Respondents


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                                            (( 3 ))       Cri-Appeal-548 and 631-2003




 Mr. S. P. Sonpawale, APP for appellant - State
 Mr. Sachin S. Deshmukh, Advocate for respondents
                                 ....

                                        CORAM : R. G. AVACHAT, J.

RESERVED ON : 07th APRIL, 2022 PRONOUNCED ON : 14th JUNE, 2022

J U D G M E N T :-

. Both these appeals are being decided by this common

judgment and order since they are interconnected. The Appeal

(No.548 of 2003) has been preferred by the original accused Nos. 1

to 5 against the judgment and order dated 29.07.2003 passed by the

learned Additional Sessions Judge, Ambajogai in Sessions Case

No.83 of 1999, convicting them for the offences punishable under

Sections 498-A and 306 read with 34 of the Indian Penal Code and

resultant sentence. While, the Appeal (No.631 of 2003) has been

preferred by the State for enhancement of the sentence.

2. Pending the appeals, the appellant Nos.1 and 2 in Appeal

No.548 of 2003 passed away. The widow and son of the deceased

appellant No.1 came on record to pursue the appeal.

3. The facts in brief giving rise to both the appeals are as

follows.

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4. Jyoti (deceased) was the daughter of PW1 - Rohidas.

She had married the deceased appellant No.1 - Bapurao in 1993. On

01.12.1998, Jyoti committed suicide by setting her ablaze. PW1

Rohidas therefore lodged FIR (Exh.53) alleging her husband

Bapurao, mother-in-law Rukhminbai (deceased appellant No.2) and

the sisters-in-law (Appellant Nos. 2 to 5) to have had harassed and

ill treated the deceased Jyoti in connection with unlawful demand of

dowry and thereby driven her to commit suicide.

5. Pursuant to the First Information Report (FIR) (Exh.53),

a Crime vide CR No.189 of 1998 for the offences punishable under

Sections 498-A, 306, 304-B r.w. Section 34 of the Indian Penal Code,

came to be registered with Parali Vaijnath Police Station. The

investigation of the crime took place. Statements of persons

acquainted with the facts and circumstances of the case were

recorded. Scene of offence panchanama was drawn. The dead body

of Jyoti was subjected to post mortem examination. On completion

of the investigation, the appellants were proceeded against by filing

charge-sheet. The learned J.M.F.C. committed the case to the Court

of Sessions for trial in accordance with law. The learned Additional

Sessions Judge, Ambajogai, framed the charge. The appellants

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pleaded not guilty. The prosecution examined six witnesses and

produced in evidence certain documents to bring home the charge.

The learned Additional Sessions Judge, on appreciation of the

evidence in the case, convicted the appellants for the offence

punishable under Sections 498-A and 306 I.P.C. and therefore,

sentenced to suffer two years rigorous imprisonment and pay fine of

Rs.500/- each on both counts. In default of payment of fine, they

were directed to undergo rigorous imprisonment for six months.

6. The learned Advocate for the appellants would submit

that the deceased did not leave behind any suicide note nor did she

made oral dying declaration. The deceased had happy married life.

She was hyper sensitive. On the given day, the deceased wanted to

visit her parental house. Her husband (deceased appellant No.1) was

opposed to her proposal. She, therefore, got annoyed and set herself

ablaze. The learned Advocate took me through the evidence on

record to ultimately submit that the impugned judgment and order is

unsustainable on facts and law as well.

7. The learned APP would, on the other hand, submit that

the deceased committed suicide within seven years of her marriage.

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                                      (( 6 ))       Cri-Appeal-548 and 631-2003

The evidence of the father of the deceased coupled with the evidence

of the independent witnesses would undoubtedly suggest that the

deceased was subjected to ill treatment in connection with the

payment of outstanding dowry amount and illegal demand of

motorbike. The learned APP reiterated the reasons given by the trial

Court in support of the judgment of conviction. He, ultimately, urged

for dismissal of the appeal against the conviction. He, even urged for

enhancement of sentence.

8. Considered the submissions advanced. Perused the

evidence relied on. Gone through the documents referred to. Let us

appreciate the evidence let in by the prosecution.

Admittedly, the deceased Jyoti had married Bapurao

(deceased) in 1993. She had started residing at her matrimonial

home since the day of her marriage. On 01.12.1998, the deceased

committed suicide by setting her ablaze. No suicide note was left

behind by the deceased nor did she make any dying declaration (oral

or documentary). In absence of such kind of evidence, we have to

appreciate the oral evidence of the prosecution witnesses. PW-1

Rohidas - father of the deceased testified that at the time of

settlement of the marriage, he had agreed to pay Rs.50,000/- as

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dowry, besides 10 gram gold and a wrist watch. For want of funds,

he agreed to pay Rs.25,000/- (part of dowry amount) two years after

the marriage. Since he could not pay the outstanding amount of

Rs.25,000/-, her husband Bapurao, his mother and the sisters-in-law

(appellants) started ill-treating her. It is in his evidence that deceased

Bapurao had beaten up Jyoti and dropped her at his residence. He

had asked him not to send Jyoti back to the matrimonial home

unless he was paid Rs.25,000/- and a motorbike. He had tried to

convince Bapurao, but in vail. His son Deepak had therefore been to

the house of appellant Bapurao along with Jyoti. Both of them were

not allowed to enter the matrimonial home. Bapurao assaulted both

of them. Deceased Jyoti had therefore to take shelter at the house of

one Nagnath Waghmare in the same village. PW1 Rohidas

accompanied by his friend Prakash (PW2) went to the house of the

appellants to convince them. It is further in his evidence that

deceased Jyoti and her husband Bapurao thereafter started residing

at Parali. He also ill-treated Jyoti at Parali. Jyoti would relate her

woes to him. It is further in his evidence that just two days before,

Jyoti set herself ablaze, he had been to her residence. Jyoti related

him that time that the appellant Bapurao was ill-treating her. She

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therefore requested him to meet the demand of Rs.25,000/- and a

motorbike.

9. PW2 - Prakash tried to corroborate PW-1's evidence. He

testified to have had accompanied his friend Rohidas to the house of

deceased Bapurao. It is in his evidence that he had pursuaded the

parents-in-law of Jyoti. As a result thereof, they took Jyoti back to

her matrimonial home. He did not speak anything more. Then we

have evidence of PW4 Narayan - brother of the deceased. He gave

his evidence on the lines of evidence given by his father PW1 -

Rohidas. PW5 Manik testified that he was present at the time of

settlement of marriage. Dowry amount was fixed at Rs.50,000/-,

besides one tola of gold. Rs. 25,000/- were paid and the balance was

agreed to be paid later on. It is further in his evidence that Jyoti had

told him to have been harassed and ill-treated by her husband

Bapurao, over the demand of dowry amount. On the same lines, is

the same evidence of PW3 Rasoolsaheb. He too testified in

consonance with the evidence of PW1.

10. All these five witnesses were subjected to a searching

cross examination. PW1 - Rohidas - father of the deceased admitted

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that he was illiterate. He could sign only, but was unable to read

properly. It is in his evidence that after the funeral of the deceased,

he had discussion with his brother over the cause of death and then

a complaint was got typed at village Chapoli, taluka Ahmedpur. He

lodged the same with the concerned Police Station. He was

confronted with his oral evidence viz-a-viz FIR Exh.53. It is in his

evidence that Jyoti's marriage took place at Lohara, the place of her

in-laws. Local expenditure was borne by deceased Bapurao. His

evidence indicate that only for about 1 ½ years, Jyoti had stayed at

her matrimonial home at village Lohara along with her parents and

sisters-in-law. Thereafter, both, Jyoti and her husband had started

residing at Parali. There is nothing in the evidence to indicate that

the mother and sisters-in-law had ever been staying at Parali for a

long. As such, a bare statement in the evidence that the sisters-in-law

(appellant Nos. 3 to 5) would ill-treat her in connection with

demand of dowry is of no consequence to uphold their conviction.

There is no other evidence against the sisters-in-law. The husband

Bapurao and mother-in-law (Rukminibai) passed away pending the

appeals.

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                                      (( 10 ))       Cri-Appeal-548 and 631-2003

11. The couple, deceased Jyoti and Bapurao was blessed

with a baby boy. Admittedly, pre-delivery ceremony (Dohal-Jevan)

was held at Parali. The Parents of Jyoti and all her relations had

attended the said function. Admittedly, Jyoti got married while she

had passed 9th standard examination. Post marriage, she successfully

passed matriculation. Deceased appellant Bapurao, allowed her to

take further education. She was, however, unsuccessful in H.S.C.

examination. Bapurao was serving as a Lecturer with a local college.

PW1 Rohidas admitted in no uncertain terms that the FIR is silent to

state that the balance amount of dowry was agreed to be paid two

years after the marriage. The FIR is also silent to state that deceased

Bapurao had driven Jyoti out of her house and asked her to come

back only if his demand was satisfied. The FIR is also silent to state

that PW1 Rohidas had been to the house of Jyoti at Parali just two

days before she did end her life. The FIR is also silent to state that

while his son had been to the house of the appellants, he was beaten

up. His evidence would further indicate that deceased Bapurao took

Jyoti to Lohara for celebrating Diwali festival.

12. As such, the evidence of PW1 Rohidas undoubtedly

indicate that the FIR is a product of deliberations and imaginations,

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(( 11 )) Cri-Appeal-548 and 631-2003

as well. The FIR is silent to state all the material facts that would

connect the appellants with the crime in question. Whatever

incriminating has been deposed to by PW1 in his examination-in-

chief was found to be improvement, since the same do not find place

in the FIR. PW2 - Prakash did not attribute anything incriminating

to any of the appellants. His evidence indicate that the parents-in-

law of the deceased were requested to be kind enough with the

deceased. PW3 - Rasoolsaheb - a friend of the informant had

attended pre-delivery ceremony (Dohal-Jevan) of Jyoti. The same

suggests that such a ceremony was held with fanfare. He is none

other than a close friend of the informant. Evidence of PW4 -

Narayan indicates that deceased Bapurao had left Jyoti at her house

2 ½ years after her marriage on account of non payment of dowry.

Even if we accept his evidence as it is, it was the incident that took

place 2 ½ years before the deceased committed suicide. Admittedly,

the deceased did not leave behind any suicide note or made any

dying declaration. It is therefore difficult to connect the said

incident with the cause of death of Jyoti. This witness has

unequivocally testified that instead of giving gold ornaments to

Bapurao, it was given to deceased Jyoti. Deceased Bapurao had

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(( 12 )) Cri-Appeal-548 and 631-2003

offered Mangalsutra. His police statement was silent to state that

after 2 ½ years of marriage, appellant Bapurao had left Jyoti at his

house.

13. Appreciation of the evidence of the aforesaid witnesses

would undoubtedly leads this Court to observe that except their bare

words, there is nothing to suggest that the deceased had committed

suicide on account of ill-treatment meted out to her with a view to

satisfy demand of dowry and motorbike. The evidence undoubtedly

indicate that the sisters-in-law (appellants No. 3 to 5) have

unnecessarily been roped in. The evidence on the other hand suggest

that after the deceased Jyoti stayed at her matrimonial home for a

year or two, she started residing separately along with her husband

at Parali, husband's service place. Neither the mother, nor the sisters-

in-law had been staying with them at parali. The deceased was

permitted to continue with her education. She was therefore

admitted to junior college. She had successfully passed S.S.C.

examination post marriage and attended the classes for H.S.C., but

was not successful. The couple was blessed with a baby boy. Pre-

delivery ceremony (Dohal-Jevan) was held at Parali with all the

celebrations. All her relations from parental side had attended the

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function. The evidence indicate that the deceased appellant Bapurao

was serving as a Lecturer. His work hours were from 9.00 a.m. To

12.00 noon and 2.00 p.m. to 5.00 p.m. On the fateful day, he had

just returned home. It is his case that the deceased had expressed

her desire to visit her parents home. He had politely refused. She

therefore committed suicide. There is no investigation on these lines.

The Investigating Officer had recorded the statements of the

neighbours of the deceased. None of them was examined as a

witness. The Investigating Officer has admitted that while inquiry

with the neighbours, it was revealed that the deceased was not

subjected to ill-treatment.

14. Section 306 and 498-A of I.P.C. are reproduced below:

"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

"498A. Husband or relative of husband of a woman subjecting her to cruelty - whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation - for the purpose of this section, cruelty means -

1. Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury

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or danger to life, limb or health (whether mental or physical) of the woman; or

2. Harassment of the women where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

15. There has to be some evidence to indicate the deceased

to have been ill-treated. It has further to be shown that such ill-

treatment was with a view to drive her to commit suicide. True, in

view of Section 113-A of the Evidence Act an inference of the

abetment of suicide could be drawn. For drawing such inference

there has to be nexus between the ill-treatment and the factum of

death. The FIR was the product of imagination and deliberations.

The FIR is silent to state material facts which have been narrated in

examination in chief. The evidence on the other hand indicate that

the deceased was treated well. Whatever dispute or quarrel had

between the couple that dates back to 2 ½ years before, the

deceased committed suicide. Based on such evidence, the trial Court,

was not justified in convicting the appellants. In view of this Court,

there is no evidence to connect the appellants with the crime in

question. The appeal (Criminal Appeal No.548 of 2003), therefore,

deserves to be allowed. The State's appeal fails.

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                                         (( 15 ))       Cri-Appeal-548 and 631-2003

16. The appeal (Criminal Appeal No.548 of 2003), thus,

succeeds. Hence, following order.

ORDER

(i) Criminal Appeal No.631 of 2003 filed by the State is dismissed.

(ii) Criminal Appeal No.548 of 2003 is allowed.

(iii) The conviction and sentence passed against the appellants vide impugned judgment and order dated 29.07.2003 by the learned Additional Sessions Judge, Ambajogai in Sessions Case No.83 of 1999, is hereby quashed and set aside.

(iv) The appellants are acquitted of the offences punishable under Sections 498-A and 306 read with 34 of the Indian Penal Code.

(v) Since the appellants are on bail, their bail bonds shall stand cancelled.

(vi) Fine amount, if paid, be refunded to the appellants.

[ R. G. AVACHAT, J. ] SMS

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