The State Of Maharashtra vs Sou. Sumeeta Ashok Berde & Ors . … on 16 June, 2017

APPEAL-750-2001.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.750 OF 2001

THE STATE OF MAHARASHTRA )…APPELLANT

V/s.

1) SOU.SUMEETA ASHOK BERDE )
2) LAXMAN BALU MANDAVKAR )
3) KRISHNA LAXMAN MANDAVKAR )…RESPONDENT

Ms.Anamika Malhotra, APP for the Appellant – State.

None for Respondents.

CORAM : A. M. BADAR, J.

DATE : 16th JUNE 2017

ORAL JUDGMENT :

1 This is an appeal by the State challenging acquittal of

respondents / original accused of offences punishable under

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

Code recorded by the learned Additional Sessions Judge,

Ratnagiri, in Sessions Case No.102 of 2000 on 18 th July 2001.

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Respondent no.1 was original accused no.1. She is sister-in-law of

deceased Prabha alias Kalyani. Respondent no.2 Laxman is father-

in-law whereas respondent no.3 is husband of the deceased.

2 Facts leading to the prosecution of respondents/

accused persons projected from Police Report can be summarised

thus :

Prabha @ Kalyani was daughter of first informant Jaywanti

G. Shibe, resident of Village Shiravali in Khed Taluka of Ratnagiri.

On 12th March 1997, she married respondent / accused no.3

Krishna Laxman Mandavkar. Krishna used to stay at Tardeo area

of Mumbai as he was working at Mumbai for earning his

livelihood. After marriage, Prabha @ Kalyani started residing at

the house of accused persons at Village Rukhi in Dapoli Taluka of

Ratnagiri district. It is the case of prosecution that respondent /

accused no.1 Sumeeta used to ill-treat Prabha @ Kalyani in

respect of domestic reasons as well as agricultural work. The

prosecution further alleged that respondent / accused no.2

Laxman – father-in-law used to cast an evil eye on Prabha @

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Kalyani and on some occasions he had entered on the bed of

Prabha @ Kalyani. PW1 Ganpat Shibe is father of Prabha @

Kalyani. He also used to reside and work at Mumbai for earning

his livelihood. PW2 Jaywanti Shibe is mother of Prabha @

Kalyani and she used to reside at Village Shiravali in Khed Taluka

of Ratnagiri district. According to the prosecution case, Prabha @

Kalyani used to visit her parental house and used to disclose her

woes and sufferings to her mother as well as her father.

Ultimately, meetings were convened at Mumbai for settling

matrimonial dispute. At that time, Praba @ Kalyani, who by then

was staying with her mother, refused to go to Village Rukhi for

residing with accused sister-in-law and father-in-law. She stayed

at Mumbai with her husband i.e. accused no.3. Ultimately,

according to the prosecution, Prabha @ Kalyani committed suicide

by jumping in the well at Village Rukhi on 11th June 2000 because

of ill-treatment and cruelty to her by accused persons. On 13th

June 2000, her mother PW2 Jaywanti Shibe lodged First

Information Report (FIR) against accused persons which resulted

in registration of Crime No.53 of 2000 for offences punishable

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under Section 498A and 306 read with Section 34 of the Indian

Penal Code with Police Station Dapoli.

3 Routine investigation followed. Dead body of Prabha

@ Kalyani was fished out from well and was subjected to autopsy,

after recording inquest note. Statement of witnesses came to be

recorded and on completion of investigation, accused were

charge-sheeted before the learned Judicial Magistrate First Class.

As the offence punishable under Section 306 of the Indian Penal

Code is exclusively triable by the Court of Sessions, the case was

committed to the Court of Sessions at Ratnagiri.

4 The learned Additional Sessions Judge, Ratnagiri,

READ  Sri. Munikrishnappa vs State Of Karnataka on 20 April, 2017

framed Charge for offence punishable under Sections 498A and

306 read with 34 of the Indian Penal Code against respondents /

accused persons who abjured their guilt and claimed trial. In

support of its case, prosecution has examined in all three

witnesses. PW1 Ganpat Shibe – father of the deceased is

examined at Exhibit 19. The first informant – mother PW2

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Jaywanti Shibe is examined at Exhibit 20. Investigating Officer

Sanjay Kurudkar, P.S.I., Dapoli, is examined as PW3 at Exhibit 27.

Reliance is placed on documentary evidence such as inquest notes,

postmortem reports, Chemical Analysis Report etc. After hearing

the parties, by the impugned judgment and order dated dated 18 th

July 2001 passed in Sessions Case No.102 of 2000, the learned

Additional Sessions Judge, Ratnagiri, was pleased to acquit

respondents / accused of alleged offences by holding that

evidence against them is vague and the prosecution has

suppressed the initial version about the incident. However,

dissatisfied by this acquittal, the State is in appeal.

5 Heard the learned APP appearing for the appellant /

State. She vehemently argued that evidence of first informant –

mother PW2 Jaywanti Shibe categorically states about the

harassment to a married woman at her matrimonial house by

accused persons. The learned APP submitted that accused no.2

Laxman – father-in-law was casting an evil eye on the deceased

who was residing at Village Rukhi in company of accused nos.1

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and 2. She drew my attention to the evidence of PW1 Ganpat

Shibe and PW2 Jaywanti Shibe in order to demonstrate that

because of ill-treatment and harassment to her, Prabha @ Kalyani

died suicidal death at her matrimonial village on 11 th June 2000.

With this, according to the learned APP, the prosecution is

successful in bringing home the guilt to accused persons, and

therefore, their acquittal needs to be upset by this court.

6 None appeared for respondents / accused.

7 With the assistance of the learned APP, I have carefully

perused the record and proceedings including deposition of

witnesses as well as the documentary evidence placed on record.

In the case in hand, Prabha @ Kalyani undisputedly died within

three years and three months from her marriage with

respondent / accused no.3 Krishna Mandavkar, and as such, if the

prosecution is successful in establishing cruelty to her by accused

persons, then considering the entire circumstances as brought on

record, a presumption as envisaged by Section 113A of the

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Evidence Act can be invoked in order to infer abetment to a

married woman to commit suicide. Let us, therefore, examine

evidence of prosecution in order to ascertain whether it has

proved that the deceased was subjected to cruelty by accused

persons. The term cruelty is defined in Explanation to Section

498A of Indian Penal Code which reads thus :

“Explanation — For the purpose of this section,

“cruelty” means–

(a) any wilful conduct which is of such a nature as is

likely to drive the woman to commit suicide or to

cause grave injury or danger to life, limb or health

(whether mental or physical) of the woman; or

(b) harassment of the woman 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.”

8 By now it is well settled that cruelty implies harsh and

READ  State Of H.P vs Raj Kumar Chopra on 19 April, 1994

harmful conduct of certain intensity and persistence. The routine

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bickering in married life and domestic quarrels does not amount

to cruelty. Keeping in mind these aspects, let us initially examine

what father of the deceased is stating in his evidence.

9 PW1 Ganpat Shibe has deposed that his daughter

Prabha @ Kalyani used to visit him after her marriage and she

used to tell him that accused no.1 Sumeeta and accused no.2

Laxman were ill-treating her on account of household and

agricultural work. He further deposed that, because of a letter

from his wife PW2 Jaywanti Shibe, he returned from Mumbai to

their house at Village Shiravali. As per his version, there he found

his daughter Prabha @ Kalyani present in his house. She

informed him that her husband was not ready to accept her

proposal to take her for cohabitation with him at Mumbai. PW1

Ganpat Shibe further deposed that, at that time, his daughter

Prabha @ Kalyani told him that accused no.2 Laxman (father-in-

law) keeps illicit relations with her, and therefore, she is not

willing to reside in the house of accused persons at village Rukhi

in Dapoli Taluka. PW1 Ganpat Shibe further deposed that, then a

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meeting was convened in which his daughter Prabha @ Kalyani

disclosed that accused no.2 Laxman used to commit sexual

intercourse with her, and therefore, she is not ready to go with

accused no.3 Krishna (husband). Cross-examination of this

witness reveals that mother of accused no.1 Sumeeta and accused

no.3 Krishna and wife of accused no.2 Laxman is very much alive

and she used to reside with accused persons at village Rukhi. This

witness further admitted that at village Rukhi, his daughter

Prabha @ Kalyani used to sleep in a room where accused no.1

Sumeeta – daughter of accused no.2 Laxman used to sleep. As per

version of this witness, on 12th June 2000 when he along with his

relative went to village Rukhi to see dead body of his daughter

Prabha @ Kalyani, police were present there and their statements

were recorded by police on 12th June 2000 itself. To appreciate

evidence of PW1 Ganpat Shibe in proper perspective, it is

necessary to put on record what his wife PW2 Jaywanti says

about the events of matrimonial life of her daughter i.e. deceased

Prabha @ Kalyani.

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10 PW2 Jaywanti – informant mother deposed that after

marriage, her daughter Prabha @ Kalyani used to come to her at

village Shiravali and used to tell her that accused no.1 Sumeeta

and accused no.2 Laxman are ill-treating her. As per version of

PW2 Jaywanti, Prabha @ Kalyani disclosed her that at the time of

Dassera festival accused no.2 Laxman had been to her bed.

Evidence of this witness shows that for some period her daughter

Prabha @ Kalyani stayed at parental house and then she started

cohabiting with accused no.3 Krishna at Mumbai.

11 PW2 Jaywanti had lodged report of the incident on

13th June 2000. In this FIR at Exhibit 21, averments are to the

effect that accused no.2 Laxman had entered on the bed of Prabha

@ Kalyani on two occasions.

12 This is the evidence recording cruelty and harassment

to a married woman by accused persons. At the outset itself, it

needs to be put on record that PW1 Ganpat and PW2 Jaywanti

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have not spoken about any cruel treatment to deceased Prabha @

Kalyani by her husband accused no.3 Krishna. So far as accused

READ  Mukesh vs State on 28 July, 2014

no.1 Sumeeta (sister-in-law) is concerned, the evidence is to the

effect that she used to trouble Prabha @ Kalyani over the issue of

domestic and agricultural work. As far as accused no.2 Laxman –

father-in-law is concerned, averments are regarding casting an evil

eye on his daughter-in-law i.e. deceased Prabha @ Kalyani. PW1

Ganpat has exaggerated his version by deposing that his daughter

Prabha @ Kalyani disclosed him that accused no.2 Laxman was

keeping illicit relations with her. However, PW2 Jaywanti – the

first informant has only stated that her daughter Prabha @

Kalyani has disclosed to her that accused no.2 Laxman had

entered in her bed at the time of Dassera festival. Cross-

examination of both these witnesses goes to show that wife of

accused no.2 Laxman, who according to the charge-sheet, is an

old aged person of 70 years, used to reside with him at village

Rukhi. Cross-examination of PW1 Ganpat further goes to show

that deceased Prabha @ Kalyani used to sleep with accused no.1

Sumeeta – her sister-in-law, in a separate room. With this

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evidence, the learned Additional Sessions Judge was pleased to

hold that evidence against accused persons is discrepant and

vague. Evidence on record also shows that deceased Prabha @

Kalyani was not happy in staying at her matrimonial house at

village Rukhi, as her husband accused no.3 Krishna was staying at

Mumbai. She was desirous of joining company of her husband at

Mumbai.

13 On this factual backdrop, the learned Additional

Sessions Judge has held that the prosecution has failed to

establish cruelty as envisaged by Explanation to Section 498A of

the Indian Penal Code. Upon re-appreciation of the entire

evidence adduced by the prosecution, it is not seen that the

prosecution has established cruel treatment by accused persons to

a married woman which resulted in commission of suicide by her.

So far as evidence of Investigating Officer is concerned, it explains

the line of investigation conducted by him, and as such, is of no

assistance to infer cruelty.

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14 Record shows that the FIR came to be lodged on 13 th

June 2000. Evidence of PW1 Ganpat - father of the deceased,

shows that he rushed to village Rukhi on 12 th June 2000 itself

when he came to know that his daughter Prabha @ Kalyani died.

His cross-examination candidly shows that on 12 th June 2000 itself

police recorded his statement. His cross-examination indicates

that statement of his wife, his brother and other persons from

village Shiravali were also recorded on that day i.e. on 12 th June

2000. With this evidence on record, learned Additional Sessions

Judge observed that statements of these material witnesses

recorded on 12th June 2000 are suppressed by the prosecution

prohibiting the trial court from ascertaining what was the first

version of the incident by prosecution witnesses who are near and

dear ones of the deceased. On this count also, evidence of the

prosecution was rightly rejected by the learned Additional

Sessions Judge.

15 It is well settled that when two views are equally

probable, one which leans in favour of acquittal and one which

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leans in favour of conviction, then a probable view leaning

towards acquittal taken by the court below cannot be interfered

with.

16 In the result, the appeal is devoid of merit and the

same is dismissed.

(A. M. BADAR, J.)

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