Bombay High Court

Bhaskar Namdeo Solunke vs State Of Maha on 12 September, 2024

2024:BHC-AUG:21418


                                                   {1}         CRI APPEAL 567 OF 2003


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 567 OF 2003

                 Bhaskar s/o Namdeo Solunke
                 Age: 32 years, Occu.: Agri.,
                 R/o. Nagapur, Tq.Parli - Vaijinath,
                 Dist.Beed.                                     ....Appellant
                                                                (Ori. Accused)

                                    Versus

                 The State of Maharashtra                       .....Respondent

                                                 .....
                 Advocate for Appellant : Ms. Ashwini Annasaheb Lomte
                 APP for Respondent : Mrs.Chaitali Choudhari - Kutti
                                                 .....

                                      CORAM : ABHAY S. WAGHWASE, J.

                                      RESERVED ON   : 05 SEPTEMBER, 2024
                                      PRONOUNCED ON : 12 SEPTEMBER, 2024

                 JUDGMENT :

1. Convict for offence punishable under Sections 498-A and 306

of the Indian Penal Code (IPC) is hereby taking exception to the

judgment and order of conviction passed by II Adhoc Additional

Sessions Judge, Ambajogai dated 05-08-2003 in Sessions Case No.33

of 2001.

PROSECUTION STORY IN BRIEF

2. Deceased Sumitrabai was married to appellant in the year {2} CRI APPEAL 567 OF 2003

1997. For a period of 6-7 months of marriage, everything was

smooth, but thereafter husband and in-laws subjected her to cruelty.

Harassment was on account of their demand of Rs.10,000/- and one

tola gold. For coercing her to see that their demand is met, she was

beaten and kept starved. She reported it to her parents. In due

course, she also delivered a baby boy. Till the child grew upto 2

years, in above backdrop of demand, Sumitrabai was subjected to

cruelty. Prosecution claims that finally getting fed up of the same,

she jumped in the well alongwith child and ended up her life. PW1

Eknath, father of deceased Sumitrabai, after completing last rituals,

lodged report with Parali Rural Police Station, Dist.Beed, on the

strength of which, crime was registered and also investigated by PW7

Lamture, who after completing investigation and on gathering

sufficient evidence, chargesheeted accused husband and in-laws for

commission of offence under Sections 498-A and 306 read with 34 of

the IPC.

At trial, case of prosecution was rested on evidence of in all 7

witnesses. Defence denied to lead any evidence. On appreciating

and analyzing the evidence, learned trial Judge, held charged as

proved, but only as against appellant husband alone i.e for offence

under Section 498-A and 306 of the IPC and consequently, by {3} CRI APPEAL 567 OF 2003

judgment and order dated 05-08-2003, convicted appellant husband

but acquitted rest of the accused from all the charges.

Precisely there is challenge to above judgment and order of

conviction by husband by filing instant appeal.

SUBMISSIONS

On behalf of appellant :

3. Taking this court through testimonies of PW2 Kevalbai, PW3

Eknath (parents of deceased) and PW6 Dattatraya, cousin of

deceased, learned Counsel for the appellant submitted that going by

their testimonies, it is abundantly clear that parents and cousin are

levelling vague, general and omnibus allegations. She took this court

through evidence of all three witnesses and submitted that they all

merely speak about cruelty and harassment without specifying nature

of cruelty, manner of harassment or even when instances of cruelty

and harassment took place. She emphasized that deceased had 2

years old son and her marriage was of 1997. Therefore, for a period

of almost 3 years, there was no previous complaint of any sought

anywhere. Learned Counsel pointed out that vague allegations are

made that whenever deceased came to maternal home, she reported

harassment and cruelty, but exactly when she came and reported is {4} CRI APPEAL 567 OF 2003

not getting clear from anybody's evidence. She pointed out that

except parents and cousin, no other independent witness has been

examined. She even pointed out that PW2 Kevalbai, mother of

deceased named neighbours of accused i.e. Dagadu, Haribhau, Babu

etc, who were mediators, but even they are not examined by

investigating machinery. She further emphasized that there are

allegations of demand of Rs.10,000/- and one tola gold, but

allegations are attributed against all accused without specifying who

made demand and she also not stated for what demand was raised. It

is her submission that cruelty as contemplated under law is not

proved from the testimonies of PW2, PW3 parents and PW6 cousin of

deceased. Consequently, she questions very charge as well as guilt

recorded for offence under Section 498 of the IPC. She also posed a

question as to how when in-laws are acquitted from all charges, on

what basis husband alone held guilty, is not reasoned out by learned

trial Judge and therefore, she questions maintainability and

sustainability of the findings and judgment of guilt

4. As regards to offence under Sections 306 of the IPC is

concerned, she would point out that to attract said charge, it is

imperative for prosecution to positively establish beyond reasonable {5} CRI APPEAL 567 OF 2003

doubt that there was abetment, inducement or instigation to commit

suicide. Here according to her, none of such essential ingredients are

available in the prosecution evidence. She added that, at the first

count, prosecution has not proved beyond reasonable doubt that

death of Sumitrabai and her child was only and only suicidal and not

otherwise. On this count, she took this court through spot

panchanama wherein there is description of well and she pointed out

that it has come in evidence that it was a constructed well merely

two feet above ground level and has stairs to go down and therefore,

she expresses possibility of accidental fall while fetching water. She

further submitted that here there is no iota of evidence showing

deceased jumping with the child and therefore, according to her, it is

not open for prosecution to assume or presume death to be suicidal

one. She also posed a question that there is nothing in proximity to

17-01-2001 suggesting involvement of husband in either raising

alleged demand or subjecting deceased Sumitrabai to any mal-

treatment and it was of further such gravity that she was forced to

take extreme step of jumping that too with a minor. Consequently,

she seeks reliance on following decision.

(I) Judgment of Hon'ble Supreme Court in case of Kamalakar v. State

of Karnataka dated 12-10-2023 in Criminal Appeal No.1485 of 2011.

{6} CRI APPEAL 567 OF 2003

(II) Judgment of this Court in case of Ram S/o Digambar Giri and

Others v. The State of Maharashtra dated 15-06-2022 in Criminal

Appeal No.175 of 2002.

5. Lastly, while concluding she submitted that in the light of

above, when necessary ingredients for both charges being missing

from prosecution evidence, she questions impugned judgment and its

correctness and finally prays to set aside the same by allowing the

appeal.

On behalf of State :

6. Supporting the judgment of learned trial Judge, learned APP

pointed out that barely after one and half months of marriage,

deceased was harassed and subjected to cruelty by husband and in-

laws for meeting their demand of cash and gold. That Sumitrabai

reported about demand and ill-treatment to her parents. That they

had expressed their inability to meet the said demand, however, still

mal-treatment continued and it went to such an extent that deceased

was compelled to end up her life with a small child. According to

learned APP, at the time of alleged suicide, deceased was in the

custody of appellant husband and in-laws. That they cannot escape {7} CRI APPEAL 567 OF 2003

without offering explanation as to how Sumitrabai went towards well

and further found dead. According to her, they are solely responsible

for her suicidal death as well as death of the minor. That learned

trial Court has correctly appreciated available evidence and has

found testimonies of parents not only worthy of credence but even

consistent and that there was no inconsistencies and material

contradictions so as to disbelieve their versions. Consequently, she

canvassed in favour of the impugned judgment and prays not to

disturb well reasoned and sound judgment.

EVIDENCE IN TRIAL COURT

7. In support of its case, prosecution has adduced evidence of in

all seven witnesses. Sum and substance of their evidence is as

under :

PW1 Dr.Praveen Kachrulal Tapadiya, Autopsy Surgeon, who

conducted post mortem on the body of Sumitrabai and her child,

opined death due to "cardio respiratory arrest because of drowning".

PW2 Kevalbai w/o Eknath Jadhav, mother of deceased deposed that

after 5-6 months of marriage, there was harassment and cruelty at {8} CRI APPEAL 567 OF 2003

the hands of accused. She was subjected to beating and kept starved

regarding which she reported whenever she came maternal home.

According to her, harassment and cruelty was in the backdrop of

demand of Rs.10,000/- and one tola gold and because of the same,

she jumped in the well with her son and succumbed to death.

PW3 Eknath Narayan Jadhav, who is informant and father of

deceased also in his evidence at exh.40 testified that Sumitrabai was

properly maintained for 6-7 months after marriage. Thereafter,

accused nos.1 to 5 started harassment and cruelty to Sumitrabai so as

to bring one tola gold and Rs.10,000/- from her parents. There was

beating and starvation. Whenever his daughter came, she reported

about it. On 17-01-2001, a message was received about the suicide.

After funeral, he lodged report.

PW4 Prabhakar Digamberappa Tondare, Pancha to spot panchanama

identified the same to be at exh.47.

PW5 Shivaji Dhondiram Gund is Police Head Constable, who

entertained AD report received from Police Patil and subsequently

registered crime bearing no.7 of 2001.

{9} CRI APPEAL 567 OF 2003

PW6 Dattatraya Digamber Jadhav, cousin of deceased, stated that his

cousin sister died on 17-01-2001, who was married in 1997 with

accused no.1. She was properly maintained for 5-6 months.

Thereafter, accused nos.1 to 5 started harassment and cruelty. There

was beating to Sumitrabai for demand of Rs.10,000/- and one tola

gold. When she came for festivals, she disclosed such facts to

him. On 17-01-2001 news of suicide was received.

PW7 Basweshwar Ramlingappa Lamture, Investigating Officer, who

narrated all steps taken by him during investigation till filing

chargesheet.

ANALYSIS

8. Here admitted facts could be summarized as under. Firstly,

Sumitrabai was married to appellant husband in summer of 1997.

Secondly, out of the wedlock they had two years old son. Thirdly,

Dead body of Sumitrabai and her baby floating in the well belonging

Shivappa.

9. Here prosecution though examined seven witnesses, crucial {10} CRI APPEAL 567 OF 2003

and relevant evidence is only of PW2 Kevalbai, PW3 Eknath and PW6

Dattatraya i.e. parents and cousin of Sumitrabai. Meticulously

analyzed their testimonies. It is noticed that though consistent, they

all three are deposing about cruelty and harassment meted out to

Sumitrabai by all accused on account of demand of Rs.10,000/- and

one tola gold. As pointed out none of them have spelt out or specify

as to what was the nature of cruelty either physical or mental and

form of cruelty. They are unanimously using the word harassment,

but in what form, is not stated by any of them. That apart none of

them have specified as to when, where instances of cruelty or

harassment took place. Out of three years cohabitation, it has come

in the evidence of PW2 and PW3 parents that she spent 7-8 months

in their house when she had come for delivery. If the child is of two

years of age at the time of incident, then child was born within one

year of marriage, but mother and father i.e. PW2 and PW3 are found

to be attributing harassment and ill-treatment after 7-8 months of

marriage. Law contemplates that cruelty has to be proved beyond

reasonable doubt. In umpteen judgments, essential ingredients for

attracting offence under Section 498-A of the IPC are repeatedly

dealt and discussed by the Hon'ble Apex Court. It is required to be

demonstrated that there was both physical and mental cruelty or {11} CRI APPEAL 567 OF 2003

torture so as to attract charge under Section 498-A of the IPC. Here

it is conspicuously emerging that PW2 and PW3 parents and PW6

cousin are deposing about cruelty and harassment, but they are

neither giving instances or its details. The Hon'ble Apex Court in the

case of State of Andhra Pradesh v. M. Madhusudan Rao, (2008) 15

SCC 582 observed that "Harassment simplicitor is not cruelty. Only

when such harassment is committed for the purpose of coercing a

woman or any other person to meet an unlawful demand or property

etc. alone would amount to cruelty punishable under Section 498-A

IPC".

10. Here on visiting cross-examination of PW2 Kevalbai, more

particularly paragraph 6, she is found to be answering that

Sumitrabai never came to the house unless she was brought.

According to her, first disclosure of harassment and cruelty was at the

time of first mango season after marriage. If marriage was of May

1997 then first disclosure has to be during summer of 1998. She has

admitted that one month prior to death of Sumitrabai, she had

attended ceremony of removal of hairs of child of deceased

commonly known as "Jawal". It is pertinent to note that she has not

uttered a single word about hearing any ill-treatment either physical {12} CRI APPEAL 567 OF 2003

or mental during such visit to her daughter. Her son Govind

allegedly accompanied her to attend said ceremony but Govind is not

examined here. On the contrary, she answers that she returned back

to the house when present appellant allegedly started levelling

allegations against her. She even answers that she did not go to see

grandson, who was admitted due to some illness four moths prior to

the incident. Therefore, very aspect of harassment, cruelty in the

backdrop of any demand itself comes under shadow of doubt.

Further she claims that deceased daughter came to see when her

father i.e. informant was admitted in the hospital, but informant

himself denied visit of his daughter till her death. Therefore, parents

are not consistent.

Following omissions are brought in the testimony of PW2

Kevalbai, mother of deceased :

That she convinced accused persons that their demand would be

satisfied, however, their demand could not be met; that despite

convincing accused, they continued the act of harassment and

cruelty. In paragraph 16 of cross-examination, she has admitted that

accused nos.1 and 3 own a big wada having several rooms.

Likewise informant PW3 Eknath, father of deceased in cross-

examination admitted that he gave daughter to accused husband as {13} CRI APPEAL 567 OF 2003

he owned considerable land. He admitted that his daughter came

home only if she was brought. This suggests that there was no

contact by deceased herself at any point in any mode till she

allegedly visited parents house. In paragraph 14 of cross-

examination, father too has admitted that accused no.1 and 3 has big

wada consisting four rooms and present appellant and his daughter

resided separately and had separate cooking facility.

11. PW6 Dattatraya, cousin is resident of Musalewadi. He seems

to be son of uncle of deceased Sumitra. He merely stated that

accused nos.1 to 5 started harassment and cruelty and beating to

Sumitra to fulfill demand of Rs.10,000/- and one tola gold and she

was subjected to harassment and cruelty. He has also like his uncle

and aunt i.e. PW2 and PW3 not given detail of cruelty or harassment.

Consequently, in the considered opinion of this Court, evidence

on Section 498-A of the IPC is very weak and fragile in nature.

Allegations are apparently vague and general in nature.

12. No doubt unfortunate death of Sumitrabai alongwith the child

has taken place in the well water, however, dead body was traced on

17-01-2001. What preceded the jump or fall has not come on record.

                                  {14}            CRI APPEAL 567 OF 2003


There is no missing complaint.    When Sumitrabai left house and

company of husband and reached the well is not getting clear. What

made her to go towards well is a pure guesswork. There is no

material suggesting that in proximity to the jumping or fall, there

was any role played by appellant husband in either instigating,

abetting, or inducing her to commit suicide. Parents have attended

ceremony "Jawal" ceremony of child one month prior to the incident.

As stated above, there are no allegations or any information from

Sumitrabai. Witnesses directly speak about getting message on

phone about dead body of child seen floating in well water and

subsequently, dead body of Sumitrabai also traced in same well

water. When she went near the well, how did she fell, whether it was

accidental or suicidal, was expected to be demonstrated by

prosecution by leading cogent, convincing and legally acceptable

evidence or even circumstances. Here unfortunately, there is neither

direct or circumstantial evidence on the point of death of Sumitrabai

with the child. Therefore, it is not open for anyone to assume or

presume that it was a case of suicide or otherwise unless suicidal

jumping is cogently or firmly established. When there is no material

suggesting instigation, abetment, inducement to commit suicide,

charge of Section 306 cannot be said to be proved.

{15} CRI APPEAL 567 OF 2003

13. Perused the judgment under challenge. Learned trial Judge

seems to have got influenced by the submissions of the State that

there is death alongwith the child, but legal requirements for

attracting the charges are patently not available and even reasons for

accepting prosecution version are not assigned by the learned trial

Judge. Therefore, impugned judgment not being supported by

concrete findings and by assigning sound reasons, it cannot be

allowed to be sustained. Appellant succeeds. Accordingly, I proceed

to pass following order :

ORDER

I) Criminal Appeal No.567 of 2003 is allowed.

II) The conviction awarded to appellant - Bhaskar Namdeo Solunke in Sessions Case No.33 of 2001 by the learned II Adhoc Additional Sessions Judge, Ambajogai on 05-08-2003 for the offence punishable under Sections 498-A and 306 of the Indian Penal Code, stands quashed and set aside.

III) The appellant stands acquitted of the offence punishable under Sections 498-A and 306 of the Indian Penal Code.

IV) The bail bonds of appellant stand cancelled.

V) The fine amount deposited, if any, be refunded to the appellant after the statutory period.