Bombay High Court
Kailash Venkati Moralwar vs The State Of Maharashtra on 18 September, 2024
2024:BHC-AUG:21680
CriAppeal-169-2002
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 169 OF 2002
Kailash s/o Venkati Moralwar
Age 28 yrs, Occ. Business,
R/o Juna Kautha, Tq. & Dist. Nanded. ... Appellant
Versus
The State of Maharashtra ... Respondent
.....
Mr. Akash Gade, Advocate for the Appellant (appointed through High
Court Legal Service Sub-Committee].
Mr. S. M. Ganachari, APP for Respondent-State.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 06.09.2024
Pronounced on : 18.09.2024
JUDGMENT :
1. Instant appeal is by convict Kailash, husband of deceased
Vanmala, who jumped along with her minor daughter in Godavari
river and committed suicide. Therefore, the conviction is for offence
under Sections 498-A and 306 of the Indian Penal Code [IPC]
recorded by learned IInd Adhoc Additional Sessions Judge, Nanded in
Sessions Case No. 15 of 1997.
2. Deceased was married to appellant in 1993. After a period of
six months, husband and in-laws put up demand of money for
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running shop and for coercing her to meet their demand, they
subjected her to maltreatment. Twice informant father (PW1) met the
demand by paying Rs.5000/-. However, still the demand continued,
followed by cruelty. Deceased reiterated the demand and treatment
meted out to her. Understanding was given through independent
persons to the accused, but they did not mend their ways. On
01.10.1996, Vanmala went missing and on 02.10.1996, dead bodies
of Vanmala and her daughter were traced and fetched out of the river
water. Therefore, father lodged report Exhibit 21, on the basis of
which, crime came to be registered and finally, investigated by PW10.
Accused husband and in-laws came to be chargesheeted. At the time
of charge, father-in-law expired and therefore, only husband and
mother-in-law faced trial before learned II nd Adhoc Additional
Sessions Judge, Nanded vide Sessions Case No. 15 of 1997 for offence
under Sections 498-A and 306 r/w 34 of IPC.
3. In support of its case, prosecution adduced oral evidence of 10
witnesses and also sought reliance on documentary evidence. Defence
also adduced evidence of in all 6 witnesses. After appreciating the
evidence adduced by both sides, learned trial court vide judgment and
order dated 16.03.2002, acquitted accused no.3 mother-in-law, but
convicted husband for cruelty and abetment to suicide. Such
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judgment is the subject matter of appeal before this Court vide instant
appeal.
SUBMISSIONS
On behalf of the appellant :
4. According to learned counsel for the appellant, here,
prosecution had miserably failed to establish its case beyond
reasonable doubt. He pointed out that there is no evidence, and even
required ingredients for attracting Sections 498-A or 306 of IPC are
patently missing in the evidence. However, still learned trial court has
convicted husband alone and has acquitted accused no.3 i.e. on the
same set of evidence. He pointed out that there are general, vague
and omnibus allegations of cruelty. He pointed out that witnesses are
not consistent. Independent pancha witnesses, though speak about
informant giving Rs.5,000/- on two occasions, he submitted that in
fact it has also come in the evidence of very independent witness that
they both being in business of grocery shop, had distinct financial
transactions between them. Therefore, such payments cannot be
attributed to any demand. Learned counsel submitted that shop of
appellant husband was since much prior to marriage. That, report is
out of annoyance.
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5. He pointed out that defence witnesses, including relatives of
very informant, speak about cordial relations and happy married life.
On the contrary, it is submitted that defence taken in trial court was
that deceased was upset for not getting admission in 11 th standard in
the college of her desire. Therefore, there is possibility of committing
suicide. He further submitted that necessary ingredients for attracting
Section 306 of IPC are patently missing. He further submitted that
even there is no evidence to suggest cruelty of such nature that
deceased was forced to end up her life. No such case is put forth by
prosecution, but according to learned counsel, learned trial court has
accepted the prosecution version and has recorded guilt against
husband alone. He submitted that learned trial court has merely
appreciated evidence of prosecution and has not dealt and discussed
evidence of defence. Consequently, it is his submission that, there is
no proper application of mind and rather, there is improper
appreciation of available evidence and hence, he prays to allow the
appeal by setting aside the impugned judgment.
In support of his contentions, learned counsel for the appellant
sought reliance on the following rulings :
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1. Tukaram s/o. Trimbak Aaghav v. State of Maharashtra
2024 All.M.R.(Cri.)2107 : 2024 (3) Mh.L.J.(Cri.) 660.
2. Naresh Kumar v. State of Haryana (2024) 3 SCC 573.
3. Mangat Ram v. State of Haryana (2014) 12 SCC 595.
4. Munshi Prasad and others v. State of Bihar (2002) 1 SCC
351.
On behalf of the respondent-State :
6. In answer to above, learned APP would submit that after 6
month of marriage, husband and in-laws had put up demand of
money for running shop. That, it was sort of capital to run the shop.
That, she reported about such demand to her parents. That, her
father-informant twice met the demand in presence of independent
witnesses. Such witnesses are examined by prosecution. Therefore,
there is corroboration to the testimony of informant. In spite of
meeting demand, cruelty and harassment continued. That, it was of
such extent that deceased was constrained to commit suicide.
Husband and in-laws are solely responsible and therefore, are rightly
held guilty and hence, he prays not to interfere with the sound
judgment and to dismiss the appeal.
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BRIEF ACCOUNT OF THE EVIDENCE IN TRIAL COURT
PW1 Informant Kerba (father of deceased) at Exhibit 20 gave
evidence that after marriage of his daughter in 1993, she was
properly treated for 6 months, but thereafter she was
subjected to cruelty on account of demand of money for
capital to run shop. Twice, through and in presence of
Gyanoba Kadam and Govindrao Patil, he met the demand by
giving Rs.5,000/-. However, ill-treatment continued. On
01.10.1996, husband came in search of Vanmala. Finally,
dead bodies of Vanmala and her daughter were traced in
Godavari river. According to him, husband and in-laws are
responsible.
PW2 Vimalbai, mother of deceased, also stated that for 5 to 6
months after marriage, her daughter cohabited properly. Even
she stated that on account of the demand of money for shop,
twice Rs.5,000/- were paid. 20 days prior to the incident,
daughter had come and stayed for 10 to 12 days and that time
she had reported about cruelty and demand. Husband of this
witness (PW1) had dropped Vanmala and her child to the
house of accused. 5 to 6 days thereafter, they got news of
Vanmala going missing and subsequently, dead bodies were
traced in the river water. According to this witness, her
daughter committed suicide by jumping in river due to
intolerable cruelty by husband and in-laws.
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PW3 Brother Rajeshwar, in his evidence at Exhibit 33, stated that
after 6 months of marriage, there was ill-treatment on account
of demand of money. Whenever his sister came for festivals,
she reported it. Their father paid Rs.5,000/-. On 01.10.1996,
husband came in search of Vanmala. Dead bodies of his sister
and niece were found in Godavari river. According to this
witness, his sister committed suicide by jumping in river due
to cruelty at the hands of husband and parents-in-law.
PW4 Dhondiba is the pancha to inquest panchanamas Exhibits 36
and 37.
PW5 Topaji is the pancha to spot panchanama Exhibit 39.
PW6 Gyanoba is an acquaintance of PW1. He stated that husband
of Vanmala went on raising demands of money. 5 to 6 years
back, he had accompanied Kerba (PW1) to Kautha to meet
daughter and there, Kerba gave Rs.5,000/- to Venkati (father-
in-law of deceased Vanmala). He claims that he persuaded
Venkati to lead happy life and to treat daughter of Kerba
properly.
PW7 Sister of deceased, namely, Shobha, testified that there was
cruelty and ill-treatment to her sister on account of demand.
Her sister had sent letter Exhibit 42 regarding ill-treatment
and demand.
PW8 Rajendra Kagne is the autopsy doctor, who conducted
postmortem on dead bodies of Vanmala and her daughter.
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PW9 Govindrao, an acquaintance of informant, stated that he had
been to the house of Venkati with Kerba. That time, informant
Kerba gave Rs.5,000/- to Venkati. He further stated that they
had some money transactions.
PW10 P.I. Rathod is the Investigating Officer.
WITNESSES ON BEHALF OF THE DEFENCE
DW1 Devidas is the nephew of informant. He, in his evidence at
Exhibit 57, stated that Vanmala was married to Kailash 8 years
prior. He claims that he visited her house and even she visited
their house. His mother was her aunt and she reported that
she was leading happy married life. 15 days prior to the
incident, she had met at Wadepuri and stayed for about 15
days and at that time, had stated that she was to take
admission in 11th standard at Sonkhed, but she did not get
admission. During her stay at Wadepuri, she did not report
anything about her married life.
DW2 Anusayabai claims that she knew both the families. There
were cordial relations between accused and Vanmala. 15 days
prior to the incident, she had been to the house of accused to
attend birthday of daughter of Vanmala and Kailash. During
her visit, Vanmala had told that she was keen in taking
admission in 11th standard.
DW3 Baliram deposed that he does not know about relations
between Kailash and his wife.
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DW4 Shivaji Ladane, Assistant Teacher, stated that appellant being
photographer and his student, was called to the school for
functions. At that time, he heard from Kailash that his wife
was keen in taking admission in 11 th standard and had made
inquiries regarding it.
DW5 Kailash - accused appellant, in his evidence at Exhibit 61
stated that after marriage, relations were cordial. They had a
daughter, namely, Maya. Vanmala expressed desire to appear
for 11th standard and he took efforts to seek admission in
Yeshwant College, but wife had expressed that she will seek
admission only at Sonkhed and so he had taken her there. But
she did not get admission and so she was nervous. He told his
wife that he would take efforts to get her admission after
approaching Ladane Sir (DW4). On 01.10.1996, he left house
and went to photo studio. Around 7.30 p.m. when he reached
home, his wife was not in the house. She was searched but
was not found. Dead bodies of his wife and daughter were
found floating in the Godavari river. According to him, she
used to go for washing clothes regularly at river.
PW6 Uttam, a friend of DW5, also stated that wife of his friend was
keen in taking admission to 11th standard, but at Sonkhed. But
she did not get admission. That, she met and told in painful
manner that she did not get admission and dead bodies of
Vanmala and her daughter were found in Godavari river.
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7. Going by the prosecution version, here, husband and in-laws
were booked for commission of offence under Sections 498-A and 306
r/w 34 of IPC. Before commencement of trial and framing charge,
accused father-in-law reported to have died and therefore, only
husband and mother-in-law faced charges and also faced trial. On
appreciation of entire evidence, learned trial Judge has acquitted
mother-in-law and held appellant husband alone guilty for both the
charges.
8. It is further emerging that marriage of deceased and appellant
is of 1993. Alleged suicide is of 01.10.1996. Therefore, apparently,
cohabitation is for three years. Appellant and deceased had a
daughter. Evidence of prosecution could be categorized as ; first set
comprising of family members i.e. parents, brother and sister of
deceased ; second set comprising acquaintances and friends of
informant i.e. PW6 Gyanoba and PW9 Govindrao ; and third set of
panchas and Investigating Officer.
APPRECIATION OF ORAL EVIDENCE
9. PW1 father-informant at Exhibit 20 stated that after 6 months
of marriage, his daughter was subjected to cruelty for demand of
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money i.e. towards capital for running shop. He claims that his
daughter used to inform that money was for starting shop. He claims
that twice, in presence of PW Gyanoba and PW Govindrao, he handed
over Rs.5,000/-. But according to him, again after 6 months, there
was cruelty to his daughter. In para 2 of his examination-in-chief, he
clarified that cruelty was in the form of beating and starvation.
He was subjected to lengthy cross of which, the portion relevant
to the prosecution case is that, in para 3, he answered that he sold
house for giving money to the accused persons. He spent
consideration received from sale of house towards marriage expenses.
He answered that son-in-law Kailash (appellant) was running a photo
studio named as Maya Photo Studio at Dattanagar, Nanded. Then he
answered that said photo studio was started after birth of daughter of
deceased and it was started in her name. He further answered that
Kailash had his business of photography since his marriage with his
daughter. He also answered that deceased father-in-law Venkati had
provisions shop at Kautha. In further cross, he answered that first
Rs.5,000/- were given after about two years of marriage of Vanmala
and Kailash. He further answered that when he gave first amount of
Rs.5,000/-, accused Kailash had not come to his house. He is unable
to give date on which he paid Rs.5,000/- to the accused persons. In
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further cross, he stated that he had received Rs.10,000/- from one
Jankiram Dalve and therefore, he gave Rs.5,000/-. He further
answered that he had given Rs.10,000/- to Jankiram as hand loan for
his daughter's marriage. He again answered that the amount of
Rs.5,000/- handed by Jankiram was given to accused and at that
time, Gyanoba (PW6) handed the cash to accused. He further
answered that he placed the amount in the hands of Gyanoba and
Gyanoba handed it over to Venkati. In para 4 he further answered
that he gave Rs.5,000/- on the second occasion after lapse of two
months of giving Rs.5,000/- on the first occasion. He answered that
he did not inform his wife and sons and even Gyanoba about giving
Rs.5,000/- on the second occasion. He further answered that he also
does not remember the day, date and year when he gave the amount
of Rs.5,000/- for the second time. He answered that he gave the
amount through PW9 Govindrao. To a question, "whether Venkati
had demanded the money?", he answered that his daughter had
demanded money and not Venkatrao.
10. Now, if we visit the testimony of wife of informant, i.e. PW2
Vimalbai (mother of deceased), who is examined at Exhibit 32, even
she stated that after 5 to 6 months of marriage, accused nos. 1, 2 and
3 started ill-treating her daughter by making illegal demand of money
CriAppeal-169-2002
for their shop. According to her, accused persons used to beat and
starve her daughter. They gave Rs.5,000/- to accused. Again accused
demanded money and again Rs.5,000/- were given. About 20 days
prior to the incident, accused husband had brought daughter and her
child to their house. She stayed for 10 to 12 days and during such
stay, she told that accused treated her with cruelty by demanding
money. Thereafter husband of this witness (PW1 Kerba) took Vamala
and her child to accused persons. After 5 to 6 days, appellant came in
search of her daughter and when they all went, her dead body was
removed from Godavari river.
In cross, she denied that any letter was sent by deceased to
them but, according to her, it was sent to her another daughter i.e.
sister of deceased. Then, she again stated that she did not seek the
letter. Even she is unable to give dates on which amounts of
Rs.5,000/-, on two occasions, were given to the accused. According to
her, the amounts were given after lapse of one year from the
marriage. She answered that she had not made inquiry with her
husband as to from which source he raised amount of Rs.5,000/- on
two occasions to give it to accused.
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11. PW3 Rajeshwar, brother of deceased, in his evidence at Exhibit
33 deposed that after 6 months of marriage, there was ill-treatment
on account of demand. Whenever his sister visited for festivals, she
reported ill-treatment by accused persons. According to this witness,
his father told him that he had given Rs.5,000/- to the accused
persons and such amount was given about one year prior to the
incident, but again accused persons put up demand and his father
gave Rs.5,000/- without informing them. On 01.10.1996, his sister
was missing and was found with daughter in Godavari river. He
stated that his sister jumped in the river only due to cruelty at the
hands of husband and in-laws.
In cross he stated that first amount of Rs.5,000/- was given by
his father to the accused after one year of marriage.
12. PW7 Shobha is sister of deceased. She stated that after
marriage, husband ill-treated Vanmala by demanding money from
her. That, her sister used to tell about ill-treatment on account of
demand of money by husband, father-in-law and mother-in-law. Her
father gave Rs.5,000/- twice but husband and in-laws subjected her to
cruelty to bring more money from parents. According to her, Vanmala
had also sent her a letter to her. In that letter dated 03.09.1996, her
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sister had conveyed that she was subjected to cruelty for demand of
money and had further requested her to convey the message to her
father. She identified the letter Exhibit 42.
In cross, she stated that she handed over letter Exhibit 42 after
two days of death of her sister. She handed over Exhibit 42 to her
father. She answered that her husband had read over the letter to her,
wherein it was stated that their father had given money on two
occasions. She admitted that in previous letters, her sister had not
mentioned about any ill-treatment at the hands of accused and the
demand of money.
ANALYSIS OF EVIDENCE OF PARENTS, BROTHER AND SISTER
13. On carefully sifting the above discussed evidence of parents,
brother and sister of deceased, it is noticed that all of them are merely
speaking about deceased being subjected to cruelty and accused
persons putting up demand of money. Though informant claims that
there was beating and starvation, who beat her or whether they all
together beat her, who kept her starved and when, has not been
stated by either informant or his wife. Though informant claims that
money was for capital to run shop, in cross para 3, he has candidly
answered that accused husband had his business of photography since
CriAppeal-169-2002
his marriage with the daughter, i.e. since the beginning. Quantum of
amount demanded by way of capital for shop is not stated by
informant, or even for what purpose money was demanded has not
come in his evidence. It is pertinent to note that in para one of
examination-in-chief he has deposed that when he went to drop his
daughter, he gave her Rs.500/- for expenses, and he has stated that,
he persuaded his daughter to stay properly. His such version gives
different and distinct meaning as it seems to be suggesting his own
daughter to cohabit properly. Though he claims that twice he gave
Rs.5,000/-, when amount was paid has not been stated by him.
According to him, he paid Rs.5,000/- after selling his house, but he
has not substantiated the sale transaction of house. In cross, he
answered that first time, payment was given by him after two years of
marriage, whereas, his wife PW2 contradicts him as she speaks of
handing Rs.5,000/- for the first time after one year of marriage. In his
cross, he has stated that Rs.5,000/- were paid to accused after
amount was received from one Jankiram, to whom he had extended
hand loan. But said Jankiram is not examined. On the one hand he
stated that the amount of sale proceeds received by him was spent on
marriage expenses. Therefore, he has given contradictory versions.
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Likewise, when asked whether deceased Venkati had demanded
money, informant has answered that his daughter had demanded the
money and not Venkati. Such answer also gives a distinct complexion
to his version.
14. PW2 Mother also stated that there was beating and starvation,
but amongst three accused, who did what has not been stated by her.
In cross, she answered that she did not make inquiry with her
husband as to from which source he paid Rs.5,000/- on both
occasions, to give it to accused. She does not depose, like her
husband, that amout of sale consideration and amount received back
from Jankiram which was given by way of hand loan, was used to pay
the demand. Therefore, both parents, who are residing under one
roof, are not found to be consistent.
15. As regards PW3 Rajeshwar is concerned, he also stated that his
sister was ill-treated and there was cruelty on account of demand of
money. He claims that his father told him that he gave Rs.5,000/- to
the accused and even according to him, the amount was given one
year before the incident. His such version is contrary to the version of
his father.
CriAppeal-169-2002
16. PW7 Shobha claims that at the time of festivals, when her sister
used to come, she used to tell about ill-treatment meted out to her on
account of demand by husband and in-laws. But her testimony is
silent about nature of ill-treatment or quantum of amount demanded.
She has not stated, like her parents, that there was beating or
starvation.
17. Therefore, parents, brother and sister are not lending support
to each other. General allegations are levelled that there was demand
and cruelty. Quantum of amount demanded has not been stated by
any of then. Merely they are stating that amount was demanded by
way of capital to run the shop. But there is no distinct evidence as to
capital in what form and for what purpose.
SECOND SET OF EVIDENCE : ACQUAINTANCES/FRIENDS
18. Second set of evidence comprises of PW6 Gyanoba and PW9
Govindrao. They are said to be acquaintances of informant and were
party to the alleged handing over of cash of Rs.5,000/- on two distinct
occasions.
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19. PW6 Gyanoba in his evidence stated that husband of daughter
of informant went on raising demands of money. 5 to 6 years back,
informant came to him and requested him to accompany him to
village Kautha. He accordingly went there i.e. Kautha. At Kautha,
informant gave Rs.5,000/- through him to Venkati. He further
deposed that he persuaded Venkati to lead happy life and to treat
daughter of Kerba properly.
While under cross, he is unable to give day, date, month or year
of their visit to Kautha. He claims to have handed over bundle of
amount, but he answered that he did not count it. He answered that
there was no discussion regarding the amount demanded by Venkati.
That, when they visited Kautha, even Venkati did not demand any
money in his presence on his own. He answered that even informant
did not express as to why Venkati was demanding money. He further
deposed that there was no exchange of words between informant, his
daughter and Venkati when the amount of Rs.5,000/- was given.
20. PW9 Govind, in his evidence at Exhibit 48, stated that he was
called at the house of accused Venkati by informant while he was on
the way to the temple of Lord Maroti. He stated that at that time,
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informant gave Rs.5,000/- to Venkati. He further answered that they
had some money transactions. While under cross, he again stated that
Venkati and Kerba had some money transaction between them and
they used to take and give money mutually. Both, informant and
Venkati, had their grocery shop business.
21. On appreciating the evidence of these independent witnesses, it
is emerging that, firstly, PW6, though claims to have accompanied
informant to the house of accused, apparently, he has handed over
Rs.5,000/- to Venkati and not the appellant husband. His cross clearly
shows that he is unable to state the day, date and time or year of such
visit and even his answers in cross show that he does not know that
the amount given was towards any demand made by accused for
running shop. Likewise, PW9 Govind has given totally different
version as he has stated that in his presence, amount was given to
Venkati and not husband. He further stated that there were money
transactions between Venkati and informant Kerba. In cross he
candidly stated that Venkati and Kerba had money transactions in
between them as they both run grocery shop.
22. Another piece of evidence which prosecution seems to be
catching hold of is the letter Exhibit 42 allegedly written by deceased
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Vanmala to her sister PW7 Shobha. PW7 Shobha has deposed about
receiving letter from her sister wherein it was alleged that there was
demand and ill-treatment. However, it is noticed that Exhibit 42 is
handed over to police after two days and the same is not seized by
drawing any panchanama. Said letter was handed over by PW7 to
informant and informant further claims to have handed it to police.
Apparently said Exhibit 42 is addressed to the husband of PW7 and he
is not examined for the best reasons known to prosecution. The
investigating machinery does not seem to have taken pains to get
authorship of said letter proved by referring the said Exhibit 42 to
handwriting expert. All above aspects create doubt about Exhibit 42
and cannot be straightway accepted.
23. To sum up, here, unfortunate incident had taken place. Dead
bodies of Vanmala and her minor daughter were traced and fetched
from the river water. What preceded the incident has unfortunately
not come on record. How and why deceased went towards the river,
is not getting clear. Unless there is material suggesting instigation,
abetment or inducement or cruelty to be of such nature that deceased
was left with no alternative but to end up her life, charge of Section
306 IPC cannot be said to be attracted. In the light of above material,
essential ingredients for attracting Sections 498-A and 306 of IPC are
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not available and so, it would be unjust to hold prosecution case
proved, as is held by the trial Judge.
24. After going through the impugned judgment, in the considered
opinion of this Court, above aspects noticed on re-appreciation are
not considered by the trial court. The aspect of general and vague
allegations are given undue importance. Learned trial Judge has not
justified why Section 498-A of IPC gets attracted. In absence of any
evidence of abetment to commit suicide, charge of Section 306 IPC
seems to have been applied. Above all, on same set of evidence,
mother-in-law is acquitted, but husband alone is convicted without
assigning any plausible or convincing reason. Hence, such judgment
cannot be allowed to be sustained. Accordingly, I proceed to pass the
following order:
ORDER
I. The appeal is allowed.
II. The conviction awarded to the appellant Kailash s/o Venkati
Moralwar, by learned IInd Adhoc Additional Sessions Judge,
Nanded in Sessions Case No. 15 of 1997 under Sections 498-A
and 306 r/w 34 of IPC on 16.03.2002 stands quashed and set
aside.
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III. The appellant stand acquitted of the offence punishable under
Sections 498-A and 306 r/w 34 of IPC.
IV. The bail bond of the appellant stands cancelled.
V. Fine amount deposited, if any, be refunded to the appellant after
the statutory period.
[ABHAY S. WAGHWASE, J.]
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