The State Of Maharashtra vs Rajkumar Chandrakant Kavade & Ors on 16 June, 2017

259-APPEAL-152-2003.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.152 OF 2003

THE STATE OF MAHARASHTRA )…APPELLANT

V/s.

1) RAJKUMAR CHANDRAKANT KAVADE )
2) SMT.SHANTABAI CHANDRAKANT KAVADE)
3) SMT.SHAILA SANJAY PATIL (MAGAR) )…RESPONDENTS

Mr.Ameet Palkar, APP for the Appellant – State.

None for the Respondent.

CORAM : A. M. BADAR, J.

DATE : 16th JUNE 2017

ORAL JUDGMENT :

1 By this appeal, the State is taking exception to

acquittal of respondents / original accused nos.1 to 3 of offences

punishable under Sections 498A and 306 read with 34 of the

Indian Penal Code recorded by the learned Ad-hoc Assistant

Sessions Judge, Solapur, on 17 th June 2002 in Sessions Case

No.245 of 2001.

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2 Case of the prosecution is thus :

(a) Ujwala Vitthal Pawar, resident of Jevali in Osmanabad

district, married respondent no.1 / accused Rajkumar

Chandrakant Kavade on 31st December 1990. Thereafter she

started cohabiting with him at village Boramani in Solapur

district. Respondent no.2 / accused Shantabai Kavade is

mother whereas respondent no.3 / accused Shaila Sanjay

Patil is married sister of respondent / accused no.1 Rajkumar

Kavade. According to the prosecution case, at and about the

time of the incident, respondent / accused no.3 Shaila was

at her parental house, though she is a resident of village

Boramani in Tulzapur taluka of Osmanabad district.

(b) It is the case of prosecution that after six months of

her marriage, married life of Ujwala started facing rough

weather. Accused persons started demanding Rs.25,000/-

from her for repayment of loan. They used to beat her,

abuse her and keep her without food on account of this

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demand. She was asked to work in the agricultural field and

they used to send her for grazing cattles. It is further alleged

that at the time of Choli ceremony, accused person

demanded a steel almirah and four tolas of gold from

Ujwala. As that demand was not complied, they started

threatening her.

(c) In the evening of 11th August 2001, PW1 Mangal

Vitthal Pawar – mother of Ujwala received message that her

daughter died due to drowning in the well. PW1 Mangal

then went to village Boramani. On the next date, dead body

of Ujwala was fished out from the well. On 15 th August

2001, PW1 Mangal lodged First Information Report (FIR)

against accused persons with Solapur Taluka Police Station,

Solapur, which resulted in registration of Crime No.92 of

2001 for offences punishable under Sections 498A and 306

read with Section 34 of the Indian Penal Code. Wheels of

investigation were then set in motion. Routine investigation

followed, on completion of which, accused persons were

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charge-sheeted. As the offence punishable under Section

306 of the Indian Penal Code is exclusively triable by the

Court of Sessions, the learned Magistrate was pleased to

commit the case to the Court of Sessions.

(d) In order to bring home the guilt of accused persons, the

prosecution has examined in all seven witnesses. Informant

Mangal Pawar – mother of the deceased Ujwala is examined

as PW1. PW2 Chandrakant Patil and PW3 Vinayak Patil are

neighbours of PW1 Mangal Pawar. PW4 Dr.Suryakant

Kambale is examined to prove report of postmortem

examination of dead body of Ujwala Rajkumar Kavade.

Channavir Kallaya Swami – panch witness to the spot

panchnama is examined as PW5. PW6 Abdul Rashid

Ibrahim Shaikh has recorded FIR lodged by PW1 Mangal.

PW7 P.S.I. Rajkumar Kendre had conducted investigation of

the crime in question. On completion of evidence of

prosecution and on recording of statement of accused under

Section 313 of the Code of Criminal Procedure, after hearing

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the parties, the learned trial court by the impugned

judgment and order was pleased to acquit all accused

persons of charges leveled against them by holding that

death of Ujwala Rajkumar Kavade was accidental and

prosecution has failed to prove that she was subjected to

cruelty by accused persons, and that, they abetted

commission of suicide by her.

3 I have heard the learned APP appearing for the

appellant / State. He vehemently argued that the spot

panchnama does not show any marks to substantiate theory of

accidental death. According to the learned APP, the spot

panchnama does not reflect any floating vessel in the well water

and therefore, the learned trial court erred in concluding that

death of Ujwala was accidental. He further argued that evidence

of PW1 Mangal – mother of the deceased goes to show that

initially there was demand of Rs.25,000/- from deceased Ujwala

for repayment of loan and she was subjected to cruelty on account

of failure to meet with that demand. He further argued that

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evidence of PW1 Mangal further shows that on account of Choli

ceremony, there was demand of a steel almirah and four tolas of

gold from Ujwala and again she was subjected to cruelty on

account of this demand. With this, the learned APP argued that

prosecution has established cruelty to a married woman by

accused persons and therefore, their acquittal needs to be

reversed.

4 None appeared for respondents / accused persons.

5 I have perused the record and proceedings including

deposition of witnesses and documentary evidence adduced by the

prosecution. In the case in hand, Ujwala Kavade, a married

woman, undisputedly died within twenty months of her marriage

with accused no.1 Rajkumar Kavade. Section 113A of the

Evidence Act deals with presumption as to abetment of suicide by

a married woman. The presumption under Section 113A of the

Evidence Act can be drawn when it is proved that suicide has been

committed by a married woman within seven years of her

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marriage, and that, her husband and his relatives had subjected

her to cruelty. However, such presumption is required to be raised

by having regard to all other attending circumstances of the case.

This is a rebuttal presumption. It is required to be raised only

when the prosecution establishes its initial onus of proving cruelty

to a married woman by accused persons as defined by Explanation

to Section 498A of the Indian Penal Code. To establish cruel

treatment to a married woman, the prosecution is enjoined to

establish that married woman was subjected to such a treatment,

so as to drive her to commit suicide or to cause grave injury or

danger to her life, limb or health. Such conduct is required to be

wilful. Similarly, harassment of a married woman with a view for

coercing her or any person related to her to meet any unlawful

demand for property or valuable security also amounts to cruelty

as defined by Explanation to Section 498A of the Indian Penal

Code. Let us, therefore, examine whether evidence of the

prosecution meets this requirement.

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6 Considering the nature of charge and the witnesses

examined by the prosecution, fate of the prosecution case to a

large extent hinges on testimony of informant mother – PW1

Mangal Vitthal Pawar. She has stated in her evidence that after six

months of her marriage, accused no.1 Rajkumar Kavade and

accused no.2 Shantabai Kavade started demanding Rs.25,000/-

from Ujwala for repayment of loan and on this count, they used to

beat her, keep her without food and insisted her to work in the

field. The Informant further deposed that at the time of

Ganeshchaturthi of last year, accused persons decided to perform

Choli ceremony of her daughter Ujwala and at that time,

demanded a steel almirah and four tolas of gold. They were

informed that it is not possible to give those articles. PW1 Mangal

deposed that, then accused persons had threatened to “see her”.

Ujwala was then harassed by accused persons. As per version of

PW1 Mangal, four days thereafter, she received message that

Ujwala died due to drowning in the well, and therefore, she went

to Boramani. This witness further stated that she lodged FIR 2 – 3

days after the death of her daughter.

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7 Now let us see what the neighbours of PW1 Mangal

are stating about the incident of ill-treatment to Ujwala by

accused persons. As per version of PW2 Chandrakant, when

Ujwala came to village Jevali, he heard from Ujwala that accused

persons asked her to go to the field by carrying tiffin and she was

harassed for this work. This witness further heard that Ujwala

was making grievance that responsibility of household work was

kept on her by accused persons. As per version of this witness,

Ujwala told that she was harassed by accused persons on account

of demand of Rs.25,000/-, so also on account of demand of

cupboard and gold.

8 PW3 Vinayak - another neighbour of parental house

of Ujwala deposed that he heard from Ujwala that accused

persons were harassing her by abusing and by asking her to do

work of agricultural. He further deposed that accused persons

were asking her to bring one tola gold and cupboard at the time of

Choli ceremony and on this count, they were harassing her.

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9 Cross-examination of PW1 Mangal goes to show that

accused no.1 Rajkumar Kavade is an agriculturist by occupation.

This witness accepted the fact that her daughter Ujwala and

accused no.1 Rajkumar Kavade were going to the agricultural field

daily and that Ujwala was also doing agricultural work in the field

of her husband. They both used to return back to the house in the

evening after working in the field for the whole day.

10 It is pertinent to note that in the case in hand,

evidence regarding cruelty and ill-treatment to the deceased

Ujwala is coming on record from the mouth of her mother as well

as her neighbours from the parental house. Her parental house is

situated at village Jevali in Osmanabad district whereas, her

matrimonial house was situated at a far off place i.e. at village

Boramani in Solapur district. Married life of deceased Ujwala was

hardly of twenty months. Evidence of prosecution is not

explaining as to on how many occasions Ujwala came to village

Jevali from her matrimonial house at village Boramani. This fact

assumes importance because her neighbours from parental house

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namely PW2 Chandrakant and PW3 Vinayak have categorically

accepted the fact that their statements were not recorded by

police under Section 161 of the Code of Criminal Procedure. Both

these witnesses have stated that whatever they had stated before

the court is their first version about the incident and their police

statements were never recorded. When statements of both these

witnesses were not recorded during the course of investigation,

evidence of both these witnesses and their statements before the

court on the very first occasion becomes doubtful. The learned

trial court has disbelieved version of both these witnesses and

rightly so, on this count. I do not find any illegality in disbelieving

version of both these witnesses by the learned trial court.

11 Now comes the question of appreciation of evidence of

PW1 Mangal. Though this witness has stated about ill-treatment

and cruelty to her daughter Ujwala on account of demand of

Rs.25,000/- for repayment of loan and on account of failure to

meet demand of four tolas of gold and a steel cupboard on

occasion of Choli ceremony, this witness is not giving any further

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details about such demand. In case of such a nature and in such

type of offence, it is very easy to level allegations and once they

are leveled, it is very difficult to dislodge them, as such allegations

are made by near and dear ones of the deceased. Therefore, the

court is expected to apply strictest scrutiny and evidence of such

witness is required to be considered strictly with close

circumspection. If really her daughter was used to be subjected to

such type of ill-treatment and cruelty by not providing food to her

and by beating her on account of illegal demand, then nothing

prevented PW1 Mangal to lodge report about such behaviour of

accused persons during lifetime of Ujwala. This did not happen.

Even after death of Ujwala, though PW1 Mangal immediately

went to her matrimonial house, the report was not lodged with

promptitude. The incident of death of Ujwala due to drowning

was made known to PW1 Mangal on 11 th August 2001. On next

day she had seen dead body of her daughter Ujwala. However,

the FIR came to be lodged by her on 15 th August 2001. A married

sister of accused no.1 Rajkumar Kavade - husband of the deceased

is also arraigned as an accused. If really Ujwala was subjected to

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ill-treatment by accused persons, then after coming to know about

her death because of cruel treatment by accused persons, nothing

prevented PW1 Mangal from lodging report against accused

persons. However, PW1 Mangal did not lodge report immediately

and waited for about three days for lodging report. This fact

coupled with her vague evidence regarding the ill-treatment,

prompted the learned trial court to hold that the prosecution has

failed to prove cruel treatment to deceased Ujwala by accused

persons and consequent abetment to her for committing suicide.

Such finding is perfectly in consonance with evidence on record

and needs no interference.

12 The learned trial court has also held that death of

Ujwala Rajkumar Kavade is accidental. However, considering the

fact that evidence of the prosecution does not establish any

provocation or incitement to the deceased to commit suicide and

as alleged cruel treatment to her is not established, I do not

propose to dwell upon this aspect of the matter. Suffice to state

that considering admission given by PW5 Channavir Swami -

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panch witness that a vessel was found floating in the well when

the spot panchnama was conducted as well as the fact that report

of accidental death registered by police shows that Ujwala had

gone for fetching water from the well having steps and she was

subsequently found missing, the learned trial court is perfectly

justified in coming to such conclusion.

13 In the result, the appeal fails, and therefore the order :

i) The appeal is dismissed.

(A. M. BADAR, J.)

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