Bombay High Court
Chhaya W/O. Prakash Kosalge And Others vs The State Of Maharashtra And Anr on 18 September, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:23662-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2218 OF 2020
1. Chhaya w/o Prakash Kosalge, (Mother-in-law)
Age: 60 years, Occu.: Household,
R/o: In front of Government Ayurvedic College,
Near S.P. Office, Nanded,
Taluka and District: Nanded.
2. Prakash s/o Purushottam Kosalge (Father-in-law)
Age: 67 years, Occu.: Business,
R/o: As above.
3. Anil s/o Pandharinathrao Manathkar, (Family friend
Age: 64 years, Occu.: Business, Mediator)
R/o: Chikhalwadi Corner, Near Forest Office,
Nanded, Taluka & Dist. Nanded.
4. Dilip s/o Pandharinathrao Manathkar (Family friend
Age: 67 years, Occu.: Legal Practitioner, Mediators)
R/o: As above.
5. Sourabh s/o Prakash Kosalge, (Brother-in-law)
Age: 27 years, Occu.: Medical Practioner,
Original R/o: In front of Government
Ayurvedic College, Near S.P. Office, Nanded,
Taluka and District: Nanded,
Presently residing at Government Medical
Quarter Campus (Ghati Hospital),
Aurangabad, Taluka and District: Aurangabad. ..Applicants
Versus
1. The State of Maharashtra,
through the Officer Incharge,
Vazirabad Police Station, Nanded,
Taluka and District: Nanded.
2. Digambar s/o Baburao Lamshetwar,
Age; 56 years, Occu.: Business,
R/o: House No.81, Padmaja City,
Asarjan Road, Kautha, Nanded,
Taluka and District: Nanded. Non-Applicants
(No.2-Original informant)
...
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Mr. Rajendra Deshmukh, Senior Advocate i/by Mr. D. R.
Deshmukh, Advocate for the Applicants.
Mr. A. V. Lavte, APP for Respondent No.1.
Mr. A. B. Shinde, Advocate for Respondent No.2.
...
CORAM : SMT. VIBHA KANKANWADI AND
S. G. CHAPALGAONKAR, JJ.
DATED : 18th SEPTEMBER, 2024.
JUDGMENT (Per S. G. Chapalgaonkar, J):
-
1. The applicants have approached this Court under Section
482 of the Criminal Procedure Code thereby praying to quash and
set aside FIR in Crime No.391/2020 dated 14.08.2020 registered
with Vazirabad Police Station, Tq. and Dist. Nanded for offences
punishable under Sections 498-A, 323, 504, 506 r/w 34 of the
Indian Penal Code as well as charge-sheet/final report bearing
no.50/2021 dated 22.02.2021 and consequential criminal proceeding
in RCC No.230/2021 pending before Chief Judicial Magistrate at
Nanded.
2. The non-applicant no.2 filed report dated 14.08.2020 with
Vazirabad Police Station alleging that his daughter Shraddha was
married with Swapnil Prakash Kosalge on 07.05.2019. The
marriage was mediated by applicant nos.3 and 4. After marriage
Shraddha resided in matrimonial home alongwith her in-laws.
During her short stay, her father-in-law asked her to bring amount
of Rs.5,00,000/- for medical shop and Rs.20,00,000/- for office
purchase at Pune from parents so also demanded travel expenses
towards air tickets for Chicago, United States of America. The
Shraddha told her mother about such demands raised within a
period of seven days of marriage. The mediators i.e. applicant
nos.3 and 4 were given idea about such demand and ill-treatment.
Thereafter, on visit of informant to matrimonial house of Shraddha
alongwith mediators, she disclosed about ill-treatment meted to
her and expressed apprehension to life. The mediators also
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supported the demand of in laws. After two days amount of
Rs.1,00,000/- was handed over to Swapnil. On 17.05.2019 the
Swapnil and Shraddha left to Unites States. However, within
short stay in USA, Shraddha came to know about extra marital
affair of Swapnil and the fact that Swapnil had performed
marriage with her only with intention to extract money. She had
also informed that she had been subjected to assault by Swapnil
and he made her to suffer starvation. Further, she was asked to
consume pills as advised by brother-in-law i.e. Dr. Sourabh.
3. Since, Shraddha suffered ill-treatment, on 11.09.2019 her
mother and brother had been to USA. They noticed ill-treatment
suffered by Shraddha. The mother and brother of Shraddha
attempted conciliation of disputes and requested Swapnil to care
for Shraddha. On 25.10.2019, Shraddha's mother and brother
returned Nanded. Thereafter, Shraddha informed that Swapnil
was asking for expenses towards stay of her mother and brother.
On 27.10.2019 Shraddha informed that she has apprehension of
life. On 01.11.2019 Shraddha informed that her health has been
deteriorated, since she was administered pills as advised by Dr.
Sourabh. On 04.11.2019 when Shraddha's mother made phone call
to Swapnil, he informed that Shraddha needs medical treatment.
In afternoon, he informed that Shraddha lost life due to negligence
of doctors. On 08.11.2019 dead body of Shraddha was brought to
Nanded. The medical papers regarding her medical treatment in
USA were not provided by in-laws. Thereafter, last rites were
performed on dead body of Shraddha.
4. It is accordingly alleged that Shraddha died of ill-treatment
as well as administration of pills. Consequently, Crime
No.391/2020 came to be registered with Vazirabad Police Station
against in all six accused persons including applicants. The
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investigation progressed. Finally charge-sheet has been filed
against applicants for aforesaid offences.
5. Mr. R. S. Deshmukh, learned Senior Advocate appearing for
the applicants submits that applicants have been falsely implicated
in aforesaid crime. The deceased Shraddha suffered natural death
in USA due to congenital cardiac disorder. After her death, non-
applicant no.2 had initiated proceeding for issuance of succession
certificate to claim terminal benefit of life insurance policy,
claiming himself to be only successor of Late Shraddha. In said
proceeding, applicant no.2 filed objection through applicant no.4,
who is a reputed Advocate. Enraged by said fact, present FIR has
been lodged. He would point out that Shraddha died 04.11.2019,
her dead body was brought to Nanded on 08.11.2019, present FIR
has been lodged on 14.08.2020. The inordinate delay of nine
months in lodging FIR is unexplained. He would invite attention of
this Court to the postmortem report and death certificate of
Shraddha depicting her natural death, on account of ruptured
aortic dissection.
6. Mr. Deshmukh would further point out that applicant nos.1
and 2 are mother-in-law and father-in-law of deceased. The
applicant nos.3 and 4 are family friends and mediators of marriage.
Applicant no.5 is brother-in-law of deceased, who is post graduate
medical student at Aurangabad. Applicant nos.1 to 4 are resident
of Nanded. Applicant no.5 is resident of Government Hospital at
Aurangabad. The allegations about ill-treatment towards
Shraddha are omnibus and afterthought. The Shraddha resided at
her matrimonial house in Nanded hardly for a period of nine days
before she departed to USA on 17.05.2019. He would, therefore,
urge that demand and ill-treatment towards Shraddha at the
hands of applicants is a concocted story and cannot be entertained
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for prosecution of applicants. He urges to quash and set aside FIR
and consequential criminal proceeding against applicants.
7. Mr. Lavte, learned APP appearing for the respondent-State
and and Mr. Shinde, learned Advocate appearing for respondent
no.2 vehemently opposes the prayers in the application contending
that stipulations in the FIR and material in the charge-sheet is
sufficient to constitute triable case against accused persons.
8. We have considered submissions advanced on behalf of
learned Advocates appearing for the respective parties. We have
minutely considered the contents of FIR as well as material in the
charge-sheet. It can be observed that the daughter of non-
applicant no.2 namely Shraddha married with son of applicant
nos.1 and 2 on 07.05.2019. After short stay in the matrimonial
house at Nanded, the couple departed to USA on 17.05.2019. On
11.09.2019 Shraddha's mother and brother traveled to USA and
resided with her till 25.10.2019. The Shraddha expired on
04.11.2019. The charge-sheet contains report of postmortem
examination issued by Assistant Medical Examiner, Office of the
Medical Examiner, County of Cook, Illinois, Chicago, United
States. The postmortem examination finds cause and manner of
death, which states as under:
"POSTMORTEM EXAMINATION FINDINGS
1. Ruptured aortic dissection
a. Hemoperitoneum
b. Hemopericardium
c. Microscopic examination: confirms aortic dissection
2. STAT vitreous drug screen dipsticks: Negative for cocaine,
opiates, fentanyl, methamphetamine, and amphetamine
CAUSE AND MANNER OF DEATH
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Based on the postmortem examination findings and
investigation reports, this 25-year-old female died of ruptured
aortic dissection. The manner of death is natural."
9. The certification of death record issued by Cook County Clerk
Vital Records, Chicago Illinois dated 11.05.2019 certifies manner of
death to be "natural". Taking into account aforesaid documentary
evidence, it can be evidenced that death of Shraddha was natural.
However, applicants are charged for offence punishable under
Section 304-B of Indian Penal Code, hence, it would be apposite to
refer to the wordings of Section 304-B of the Indian Penal Code,
which reads as under:
"304B. Dowry death --
(1) Where the death of a woman is caused by any burns or
bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is
shown that soon before her death she was subjected to cruelty
or harassment by her husband or any relative of her husband
for, or in connection with, any demand for dowry, such death
shall be called "dowry death", and such husband or relative
shall be deemed to have caused her death."
10. Plain reading of aforesaid penal provision depicts that to
constitute offence under Section 304-B of the Indian Penal Code,
the death of a woman shall be caused by any burns or bodily injury
or otherwise than under "normal circumstance" within seven
years of marriage and soon before death of woman, she is subjected
to cruelty or harassment by her husband or any relative of her
husband for or in connection with any demand of dowry. In
present case, from the contents of the charge-sheet, observations in
postmortem examination report, particularly cause of death
mentioned, it is evident that death of Shraddha was natural, owing
to congenital aortic dissection. There is nothing to depict that
death was otherwise than under normal circumstance. Secondly,
contents of FIR do not show that at the time of marriage, the dowry
was fixed and there was demand of such dowry by the in-laws.
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Thirdly, there is nothing to show that soon before death, Shraddha
was subjected to cruelty or harassment in connection with demand
of dowry.
11. The Supreme Court of India in case of Satbir Singh and
Another Vs. State of Haryana 1 while interpreting the term
dowry observed that the dowry mentioned in Section 304-B should
be any property or valuable security given or agreed to be given in
connection with marriage. In present case, the contents of FIR or
charge-sheet nowhere depicts any such agreement. Further in case
of Kans Raj Vs. State of Punjab2 the Supreme Court of India laid
down five essential ingredients to make out offence under Section
304-B of the Indian Penal Code, which can be stipulated as under:
"(i) the death of a woman should be caused by burns or
bodily injury or otherwise than under a 'normal
circumstance';
(ii) such a death should have occurred within seven years of
her marriage;
(iii) the deceased was subjected to cruelty or harassment by
her husband or any relative of her husband;
(iv) such cruelty or harassment should be for or in
connection with demand of dowry; and
(v) such cruelty or harassment is shown to have been meted
out to the woman soon before her death."
12. On consideration of aforesaid elaboration of essential
ingredients explained by Supreme Court of India, we find that in
facts of present case, three important ingredients are missing.
Firstly, death of Shraddha is not occurred otherwise than under
normal circumstance. Secondly, there is nothing to depict demand
of dowry and harassment or cruelty in pursuance of such demand.
Thirdly, there is nothing to depict that soon before death of
1 (2021) 6 SCC 1.
2 (2000) 5 SCC 207.
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Shraddha she was subjected to such harassment or cruelty, when
she died in USA.
13. It is pertinent to note here that applicants before us are
resident of Nanded. The Shraddha died in USA, while she was
residing alongwith her husband. Admittedly, she resided at her
matrimonial home at Nanded only for the period of nine days
before her departure immediately after marriage to USA. The
mother and brother of Shraddha had been to USA and resided with
her from 11.10.2019 to 25.10.2019. At no point of time, complaint
was lodged by informant regarding ill-treatment to Shraddha by
her in-laws. Even present FIR has been lodged after 10 months of
death of Shraddha. No explanation is given for the inordinate
delay in lodging the FIR. On other hand, there is room to believe
that immediately after objection by applicant no.1 in proceeding
instituted by non-applicant no.2 for succession certificate to receive
terminal benefits of life insurance policy, the present FIR has been
lodged. Interestingly, applicant no.4, who is legal practitioner
engaged by applicant no.1 to defend proceeding of succession
certificate is also made as an accused alongwith other applicants.
14. At this stage reference can be given to the judgments of the
Supreme Court of India in following cases:
1. Preeti Gupta and Another Vs. State of Jharkhand and
Another3.
2. Kahkashan Kausar @ Sonam and Another vs The State
Of Bihar and Others4.
3. Sushil Kumar Sharma Vs. Union of India and Others5
4. Neelu Chopra and Another Vs. Bharati6.
3 AIR 2010 SC 3363.
4 (2022) 6 SCC 599.
5 (2005) 6 SCC 281.
6 (2009) 10 SCC 184.
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Wherein Supreme Court expressed need curb / guard
misuse of proceedings instituted under criminal law in
matrimonial disputes and false implication of relatives of
husband to wreak vengeance against them.
15. If aforesaid position of law is considered in the facts of the
present case, it is apparent that the applicants who were residing
in India and had short company of only nine days with Shraddha
immediately after marriage are falsely implicated in present
proceeding. The applicant nos.3 and 4 are not even family
members or relatives of deceased Shraddha. The applicant no.5 is
a student of Post Graduate Medical Course and resides at
Government Hospital at Aurangabad. In no case applicants could
have ill-treated Shraddha, who died in USA. Considering the
nature of allegations employed in FIR and material in the charge-
sheet, we have no hesitation to hold that there is no triable case
against the applicants. The FIR and criminal proceeding is abuse
of process of law. Applying the principles of law espoused in case of
State of Haryana and Ors. Vs. Ch. Bhajan Lal and Ors. 7, we
find that this is a fit case to exercise jurisdiction under Section 482
of the Criminal Procedure Code. Hence, we proceed to pass
following order:
ORDER
a. Criminal Application is allowed.
b. The FIR in Crime No.391/2020 dated 14.08.2020 registered
with Vazirabad Police Station, Tal. and Dist. Nanded for offences
punishable under Sections 498-A, 323, 504, 506 r/w 34 of the
Indian Penal Code as well as charge-sheet/final report bearing
no.50/2021 dated 22.02.2021 for offences punishable under Sections
304-B, 498-A, 323, 504, 506 r/w 34 of the Indian Penal Code and
7 AIR 1992 SC 604.
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consequential criminal proceeding in RCC No.230/2021 pending
before Chief Judicial Magistrate at Nanded are hereby quashed
and set aside.
c. Criminal Application is disposed of.
(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI)
JUDGE JUDGE
Devendra/September-2024
