Court:Bombay High Court
Bench: JUSTICE T.V. Nalawade
State of Maharashtra Vs. Hanmant & Ors. On 21 January 2013
Law Point:
Indian Penal Code, 1860 — Sections 498A, 304B, 306, 34 — Evidence Act, 1872 — Sections 113A, 113B — Cruelty — Dowry Death — Abetment of Suicide — Common Intention — Presumption — Appeal against acquittal — No case of interference made out — Case of prosecution that after 1 year of marriage, demand was made and continued till end, does not appear to be probable in nature — Reasons given for alleged ill-treatment does not appear to be true — Conduct of accused No. 1 not consistent with his guilt — He was giving her treatment for infertility — No wilful conduct on part of accused No. 1 or his relatives which can be defined in Section 498A, IPC — Presumption under Sections 113A, 113B of Evidence Act cannot be drawn — Impugned order upheld.
JUDGEMENT
1. The appeal is filed against the judgment and order of Sessions Case No. 14/2003 which was pending in the Court of Ad hoc Assistant Sessions Judge, Latur. The respondents are acquitted of the offences punishable under Sections 498A, 304B, 306 read with Section 34 of the Indian Penal Code.
2. Both the sides are heard. The original papers are perused by this Court.
3. In short, the facts leading to the institution of the proceeding can be stated as follows:
Deceased Sunita was the daughter of complainant Madhukar Bodkhe. Madhukar is resident of Kanheri, Tq. Ausa District Latur. Sunita was given in marriage to accused No. 1 Hanmant, about four years prior to the incident in question. Accused No. 2 is the mother of accused No. 1, accused No. 3 is the brother of accused No. 1, accused Nos. 4 and 5 are sisters of accused No. 1 and accused No. 6 is other relative of accused No. 1. For initial one year, there was no ill-treatment to Sunita.
4. After one year of the marriage, the husband and relatives started harassing Sunita by saying that she was not able to do household work and she was not able to even cook food. Then they started asking Sunita to bring T.V., half tola gold and cash amount of Rs. 30,000. They wanted the amount for business of accused No. 1. Due to poor financial condition, the complainant could not meet this demand and so ill-treatment was continued to Sunita. Sunita used to disclose about ill-treatment to complainant and other relatives. The complainant and others tried to convince the accused to behave well but their conduct did not improve.
5. Sunita lastly visited the house of complainant on 14.8.2002 when the paternal aunt of complainant died. On that occasion also Sunita disclosed about ill-treatment. Sunita committed suicide on 26.10.2002 in the evening in the house of the accused by hanging herself. Accused No. 1 gave report about the death to Police and A.D. was registered.
6. Inquest was prepared and spot Panchanama was prepared by Police. Post-mortem was conducted on the dead body and it transpired that Sunita died due to asphyxia due to hanging. On the next day, Madhukar gave report against the accused and crime came to be registered for aforesaid offences. During investigation, Police recorded statements of relatives of deceased and others and filed charge-sheet for aforesaid offences.
7. To the charge, all the accused pleaded not guilty. The prosecution examined eight witnesses. The accused took defence of total denial. One defence witness was examined by the accused to show that the deceased was taking treatment in respect of her infertility. The Trial Court has not believed the witnesses and has held that ill-treatment as defined in Section 498A of the Indian Penal Code is not proved by the prosecution.
8. Learned A.P.P. submitted that Sunita committed suicide by hanging herself in the house of accused No. 1 within four years of marriage and so in view of facts and circumstances of the case, the Trial Court ought to have used the provision of Sections 113A and 113B of the Evidence Act. Learned Counsel for respondents submitted that the entire evidence has been correctly marshalled and appreciated by the Trial Court and view taken by the Trial Court is possible view.
9. Almost all the witnesses stuck to the story given to investigating agency. Madhukar (P. W.2) has deposed that even at the time of marriage, he had given dowry of Rs. 25,000. He has deposed that after one year of the marriage, the accused made demand of Rs. 30,000, one T.V. set and half tola gold and on that count ill-treatment was given to Sunita. He has given evidence that, there was ill-treatment also on the ground that the accused were not happy with the work which Sunita was doing in the house. He has given evidence that Sunita used to disclose about ill-treatment during her visits to his house and he had attempted to convince accused to behave well. He has given evidence that on the occasion of the death of his aunt, Sunita had lastly visited his house and on that occasion last disclosure was made by Sunita. The report given by Madhukar (P.W.2) is proved at Exh. 25 and is consistent with the substantive evidence given in the Court.
10. Mukund (P.W.3) is relative of the complainant and his evidence is similar to the evidence of Madhukar (P.W. 2). He was mediator for settling marriage of Sunita with accused No. 1. He has tried to say that there was illtreatment on aforesaid counts to Sunita. During cross-examination, he has admitted that he had no direct talk with Sunita and he learnt about ill-treatment from his wife. His wife is not examined as witness.
11. Shakuntala (P.W.4) is mother of deceased and her evidence is similar to the evidence of Madhukar (P.W.2). Lata (P.W.5) is sister of the deceased and her evidence is also similar to the evidence of Shakuntalabai. Surekha (P.W. 6) is the first wife of accused No. 1 and she has tried to say that similar illtreatment was given to her by accused No. 1 and so she left company of accused No. 1. Suryakant (P.W.7) is uncle of deceased and his evidence is also similar to the evidence of Madhukar (P.W.2).
12. The evidence on record shows that it was the second marriage of accused No. 1. Madhukar (P.W.2) has avoided to admit and he knew that accused No. 1 was already married and his first wife was not cohabiting with him. The evidence of Mukund (P.W.3), mediator shows that the first marriage of accused No. l was known to him. His evidence shows that his sister was given in marriage to Uddhav Pawar, accused No. 3, many years prior to the marriage of Sunita. His evidence shows that as his sister was happy in the house of the accused, he took lead in settling marriage of accused No. 1 with Sunita. Thus, the complainant and his relatives have tried to hide many things. The evidence of Mukund (P.W.3) in cross-examination shows that financial condition of complainant was not sound and he thought that there will be no need to give dowry amount and so the marriage was settled. He has given specific admission that both the parties had decided to fix marriage without making demand of dowry amount. The evidence in cross-examination of Mukund (P.W.3) is inconsistent with the evidence given in examination in-chief. His evidence further shows that the financial condition of the accused No. 1 was sound in comparison to the financial condition of the complainant. The evidence shows that at the relevant time, the accused were having 15 acres irrigated agricultural land and accused No. a Hanmant was possessing 3 or 4 machines in respect of his business. This evidence falsified the story given by the complainant and his relatives that for purchasing machines accused No. 1 wanted some money.
13. The case of the prosecution that after one year of the marriage, demand was made and it was continued till the end, does not appear to be probable in nature. The evidence on the record shows that right from beginning, accused No. 1 was in the same business and he was having machines. Thus, the reason given for alleged illtreatment does not appear to be true.
14. As per the evidence, deceased Sunita had lastly visited house of her parents on 14.8.2002. The incident took place on 26.10.2002. There is no evidence with the prosecution as to what happened between these two dates. All witnesses examined by the prosecution are interested witnesses and nobody from the village of the accused is examined. In the evidence of the Investigating Officer, it is brought on record that on the date of the incident, accused No. 1 was not at home. After learning about the incident, accused No. 1 immediately approached police and gave A.D. report. In view of these circumstances, it was necessary for prosecution to show as to what exactly happened on that day and that could have done by examining some neighbours. In such a case, when there is other probability, the absence of independent evidence cannot be taken lightly.
15. Sunita did not conceive child during four years of the cohabitation. Her sister has tried to say that accused No. 1 was asking her to use tablets for avoiding pregnancy. But such version is not given by any other person and this version is against the defence version. The father of deceased has avoided to admit that the deceased was receiving treatment in respect of infertility. The complainant has admitted that the deceased was not happy as she could not conceive during the four years cohabitation. This background needs to be kept in mind at the time of appreciation of the evidence of defence witness.
16. Dr. Vohra (D.W. 1) has given evidence that the deceased and accused No. 1 were receiving treatment from her in respect of infertility. The relevant record is at Exhs. 38 to 45. This record is from year 2000 to 2002. Indian lady may have many reasons to commit suicide and infertility can be one of such reason. She was housewife. Thus, the probability created by the evidence of the Doctor and other witnesses in this regard cannot be ignored.
17. The conduct of accused No. 1 was also not consistent with the guilt. The evidence on the record shows that he was taking proper care of wife. He was giving her treatment in respect of her infertility. The incident was informed to the relatives of parents side. He gave report to Police immediately after learning about the incident. He never prevented the deceased from visiting the house of her parents side, relatives and the deceased used to visit the relatives of parents side almost on all the festive occasions. In view of these circumstances, it does not look probable that there was any “wilful conduct” on the part of accused No. 1 or his relatives due to which their conduct can be called as cruelty defined in Section 498A of the Indian Penal Code. It is already observed that the case of the prosecution that there was demand of dowry of Rs. 30,000, does not appear to be probable in nature. In view of these facts and circumstances of this case, it was not possible to draw presumption under Sections 113A and 113B of the Evidence Act. Thus, the view taken by the Trial Court is possible view. For the respondents, reliance was placed on a case reported as 2013 All.MR (Cr.) 205 (Bom.) Dinesh Shankarrao Deshmukh v. State of Maharashtra and Others. Scope of appellate jurisdiction is discussed. There cannot be dispute on the scope. The view taken by the Trial Court is a possible view. This Court holds that interference is not possible in the decision of the Trial Court. In the result, the appeal stands dismissed.
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