Manik Shriram Bondare & Ors vs State Of Maha on 24 July, 2017

1 APEAL200.2003

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.

CRIMINAL APPEAL NO. 200 OF 2003

1. Manik S/o Shriram Bondare,
Age : 25 years, Occu. Agriculture,
R/o. Omarga Yelladevi, Tq. Ahmedpur.

2. Gajrabai W/o Shriram Bondare (Died)
Age : 68 years, Occu. House-hold,
R/o. As above. … Appellants

VERSUS

The State of Maharashtra … Respondent
……….
Mr J. R. Patil, Advocate for the appellants
Mr M. B. Bharaswadkar, APP for respondent/State
………….

CORAM : A. M. DHAVALE, J.
DATE : 24TH JULY, 2017.

ORAL JUDGMENT:

1. This is an appeal by the accused from Sessions Case No.142

of 2001, before the Additional Sessions Judge, Udgir/Ahmedpur,

who were convicted for offences and sentenced as follows:

Sr. Offence Substantive Fine In default
No.
1 304B IPC RI 7 years
2 498A
IPC – – –
3 306
IPC RI 7 years Rs. 500/- SI for three
months.

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2 APEAL200.2003

2. The appellant’s mother, who was accused No. 2, was also

convicted but she has expired during the pendency of the appeal.

Hence, the appeal stands abated as against appellant No.2 – Gajrabai.

3. Deceased Bhagyashri, who was sister of PW1-Hansraj and

daughter of PW2 – Mangalabai, was residing with them at

Babhalgaon, Tq. Ambajogai, Dist. Beed. On 15.05.2000, Bhagyashri

married to appellant No.1 – Manik, who was resident of Omerga

Yelladevi, Tq. Chakur, Dist. Latur. Both were belonging to farmer

families. Bhagyashri thereafter started cohabiting with appellant

No.1 – Manik. Appellant No. 2 – Mangalabai was also residing with

them. As per admitted facts, on 01.09.2000 at about 10:00 a.m.,

dead body of Bhagyashri was found in a public well at Omerga

Yelladevi. The post-mortem notes disclose that Bhagyashri died of

drowning.

4. According to the prosecution case, at the time of marriage,

there was agreement between the families of the appellant

deceased-Bhagyashri to pay dowry of Rs. 75,000/- along with other

domestic articles. Out of agreed sum of Rs. 75,000/-, Rs. 65,000/-

was paid and balance amount of Rs. 10,000/- was agreed to be paid

within six months of marriage. The married life of Bhagyashri lasted

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3 APEAL200.2003

hardly for three and half months. During the said period, she visited

maternal house twice. About 15 days after the marriage, when

Bhagyashri visited her maternal house, she told her parents and

maternal relatives that her husband and in-laws were abusing her for

non-payment of remaining amount of Rs. 10,000/- and there was

also additional demand of Rs. 1.00 Lakh for purchasing a Tractor.

She used to weep while narrating the story to her maternal relatives.

Her maternal relatives assured her to make some provision within 2-3

moths and persuaded her to resume cohabitation. Thereafter, PW-1

Hansraj had been to her house 15 days before Nagpanchami festival

to fetch her to her maternal house. That time, she wept before him

and reported that there were demands of balance dowry of

Rs.10,000/- and Rs. 1.00 Lakh for purchasing a tractor. Her husband

used to consume liquor and harass her. He requested Bhagyashri’s

in-laws to send her with him for Nagpanchami festival but they

refused. Again 2-3 days before Nagpanchami he went to bring

Bhagyashri and she again told him about the dowry demand and

harassment meted out to her. Her in-laws unwillingly sent Bhagyashri

along with him but told her that while returning, she should bring

Rs.10,000/- of balance dowry and Rs.1.00 Lakh for purchasing a

tractor, otherwise she should not come. Then, after coming to her

maternal house, she narrated the incident of dowry demand and

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4 APEAL200.2003

harassment to her maternal relatives. After Nagpanchami festival, she

was taken by her grand-father to her matrimonial house and he

requested her husband and in-laws not to ill-treat Bhagyashri. On

01.09.2000, maternal relatives of Bhagyashri received news that

Bhagyashri died of drowning in a well. According to them, she

committed suicide due to dowry demands and ill-treatment. After

post-mortem and funeral, on the same day PW1-Hansraj lodged FIR

(Exh. 20). On the basis of the information, crime was registered at

23:05 hrs as C.R. No. 120/2000 with Police Station Chakur and same

was investigated into by API-Chate (PW6). Before the investigation,

during inquiry of Accident Death Case No. 29/2000, inquest

panchanama spot panchanama were drawn and the dead body of

deceased-Bhagyashri was sent for post-mortem. During the

investigation, statements of relatives of Bhagyashri were recorded.

Both the accused were arrested and after completing the

investigation, charge-sheet was submitted in the Court. In due

course, the case was committed to the court of Sessions.

5. Learned Additional Sessions Judge, Ahmedpur framed

charge against the appellant and his mother u/s 498A r/w 34, 304B

READ  State Of Mah.Thr.P.S.O.Sewagram vs Vilas Deoraoji Hiwanj on 16 June, 2017

r/w 34 306 r/w 34 of IPC at Exh. 4. Both the accused pleaded not

guilty. The prosecution examined six witnesses. The defence has

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5 APEAL200.2003

examined one witness. After considering the evidence on record, the

trial Judge held both the accused guilty for all the offences charged

and convicted them as referred above. Hence, this appeal.

6. Heard Shri. J. R. Patil, learned counsel for the appellants

and Shri. M. B. Bharaswadkar, learned APP for respondent/State.

7. Shri. Patil submitted that the allegations regarding ill-

treatment and abusing are vague. There are no independent

witnesses. PW1 to PW5 are relatives of Bhagyashri and are interested

witnesses. The appellant is having 10-12 acres agricultural land and,

therefore, it is not probable that he would demand Rs. 10,000/- or

Rs. 1.00 Lakh. The evidence on record shows that, there was petty

quarrel between accused No. 2 and Bhagyashri as Bhagyashri was

called in the field for agricultural operation of plucking legume of

mung. He argued that the water from the said well was being used

for drinking and the probability of death by accident has not been

ruled out. He relied on the evidence of defence witness. He

submitted that, there are discrepancies in the evidence of PW1 to

PW5 and their evidence is not credible and trustworthy. Hence, the

appeal should be allowed and the appellant be acquitted.

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6 APEAL200.2003

8. Per contra, learned APP argued that there is consistent

evidence of dowry demand by the appellant and his relatives. There

is circumstantial evidence to show that there was no possibility of

death by accident. There is no reason to disbelieve PW1 to PW5. The

learned trial Judge has rightly appreciated the evidence and therefore

the conviction sentence do not need any interference.

9. The points for my consideration with my findings thereon

are as follows:

Points Findings

1 Whether deceased – Bhagyashri
committed suicide? ..Proved.

2 Whether appellant/accused No. 1 and
his mother in furtherance of their
common intention abetted commission
of suicide by deceased-Bhagyashri?

..Proved.

3 In the alternative, the appellant and his
mother soon before death of Bhagyashri
subjected her to ill-treatment and dowry
demands and thereby caused her
unnatural death within 7 years from the
date of marriage and committed offence
u/s 304B r/w 34 of
IPC? ..Does not survive.

4 What order? The appeal is partly
allowed. Conviction u/s
306 of
IPC is upheld and
conviction u/s 304B of
IPC is set aside.

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7 APEAL200.2003

-: R E A S O N S :-

10. The prosecution has examined following witnesses:

PW1- Hansraj, brother of Bhagyashri and informant (Exh.20)
PW2- Mangalabai, mother of deceased-Bhagyashri.

Govind, Grampanchayat employee from Omerga, who first
PW3-

saw the dead body of Bhagyashri in the well.

PW4- Siddharam – Bhagyashri’s uncle (cousin of her father).

Rasikalabai – Bhagyashri’s paternal aunt (i.e. her father’s
PW5-

cousin’s wife).

PW6- API Chate.

11. The defence has examined DW1-Babru Somwanshi, who is

neighbour of accused No. 1.

12. As per admitted facts, Bhagyashri married to appellant on

15.05.2000 and thereafter she started cohabiting with him at Omerga

Yelladevi, Tq. Chakur, Dist. Latur. That time, mother of the appellant

No. 1 was also residing with them. Appellant was having 10-12 acres

of agricultural land. Bhagyashri has died of drowning on 01.09.2000

i.e. just three and half months after the marriage.

13. The post-mortem notes (Exh. 18) has been admitted by the

defence. It shows no post ante-mortem injuries. There are injuries

due to biting by water-born animals. The probable cause of death

recorded by Doctor is “Asphyxia due to Drowning”. Consistent with

this opinion, other symptoms like swollen, edematous congested

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8 APEAL200.2003

lungs, liver, spleen kidney were also found. The death of deceased

by drowning is not in dispute. Since there is no direct evidence, the

possibility of accidental death has to be ruled out. It was argued that,

the water of the said well was being used for drinking, however, spot

panchanama (Exh. 15) has been admitted by the defence. It shows

that the well was having a parapet wall of 4.00 ft. height and 2.5 ft.

width from all the sides. Besides, there was iron ladder for entering

into the well and there was also a pump house for fetching water. A

pair of slipper chappal was found near the well. The existence of

parapet wall around the well rules out accidental death of fall in the

well. The evidence shows that, deceased Bhagyashri left her house in

broad day light. The defence witness has also suggested that

READ  Sukumar Rajagopalan vs The State Of West Bengal & Ors on 19 July, 2017

deceased Baghyashri left the house in the morning. Since there was a

pump house and ladder, I find that there was hardly any possibility of

accidental drowning. The existence of pair of slipper chappal near

the well also indicates that it is a case of suicide and not a case of

accidental death.

14. Thus, it is certainly a case of unnatural death occurred

within three and half months after the marriage. Therefore, it is

necessary to consider whether she was subjected to ill-treatment soon

before her death.

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9 APEAL200.2003

15. PW1 to PW5 are maternal relatives of deceased-Bhagyashri.

Their evidence shows that during the period of three and half months

of cohabitation, Bhagyashri visited her house twice, once about 15

days after the marriage and thereafter at the time of Nagpanchami.

Besides, her brother Hansraj-PW1 had been to her house twice and

on each occasion, Bhagyashri disclosed Hansraj and her maternal

relatives that there was demand of balance dowry of Rs. 10,000/-.

Their evidence shows that, there was agreement to pay Rs. 75,000/-

at the time of marriage but dowry of Rs. 65,000/- was paid and it

was also agreed that the balance amount would be paid within six

months of the marriage. Bhagyashri also used to tell them about

additional demand of Rs. 1.00 Lakh made for purchasing a tractor.

Bhagyashri used to weep before them. The evidence of PW1 to PW5

on this point is consistent. The FIR was lodged on the very day of

death of Bhagyashri immediately after the funeral was over.

Therefore, these allegations cannot be said to be concocted.

16. The evidence of these witnesses is not shaken in the cross-

examination. In cross, it was tried to be suggested that Bhagyashri

was interested in marrying to a person employed somewhere

whereas; the appellant No. 1 – Manik was doing agricultural work

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10 APEAL200.2003

and therefore she was not happy. This cannot be a ground for

commission of suicide. Bhagyashri would have left his house and

resided at her maternal house. It is pertinent to note that Bhagyashri

was cohabiting with appellant No. 1 and was residing along with her

mother-in-law but both of them have given no explanation

whatsoever in their statements recorded u/s 313 of Cr.P.C. Their

defence is of simple denial of everything.

17. It was suggested to PW1 to PW5 and evidence was led

through defence witness that Bhagyashri was hardly having any

cohabitation with her husband. After the marriage, she went along

with her husband for taking darshan of their family gods. Thereafter,

she went to maternal house and stayed there for 14 days. When she

returned to her matrimonial house, she stayed there for one day and

again went to maternal house. It was suggested that she stayed at

her maternal house for 14 days and again she had gone to her

maternal house for traditional stay of bride in the month of Ashadh.

That time, she stayed there for 1 month and 21 days and she had

returned to her matrimonial house 4-5 days before the incident.

DW1 has led evidence to that effect, however, PW1 to PW5

categorically denied this fact and both the appellants have not stated

anything like that in their statement recorded u/s 313 of Cr.P.C.

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11 APEAL200.2003

18. DW1 has stated that his house was abutting to the house of

the appellant with a common wall in between. Bhagyashri used to

visit his house and used to tell his wife that she wanted her husband

serving in a company but her husband was doing work in the field

and she was married to Manik against her will. He also stated that,

his mother told him that on one day before discovery of dead body of

Bhagyashri she had seen Bhagyashri wearing a new saree and all

ornaments, while leaving her house. Evidence of DW1 as to what his

wife mother stated is hearsay. He was expected to be working in

fields during the day time. Therefore, his evidence is not trustworthy.

19. The evidence on record shows that the appellant Manik

was having eight elder sisters. Daughter of one of the sisters by name

Baby was residing with him. He was very well known to the family

of parents of Bhagyashri before marriage. PW1 to PW5 had no reason

to falsely implicate both the appellants. The suggestions made by

defence and the evidence led by DW1 that Bhagyashri committed

suicide on account of marriage with appellant, who was not as per

READ  Kasmira Bibi vs The State Of West Bengal & Ors on 17 April, 2017

her liking, is not acceptable. It is not probable that she would have

committed suicide on this ground. Bhagyashri was residing in a small

village. Her father was also farmer and therefore there was no

reason for her to have disliking of farmer’s family. There is consistent

evidence that, there were persistent demands of dowry by both the

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12 APEAL200.2003

accused from Bhagyashri. She was threatened that she should not

resume cohabitation unless she brings the amount. She used to weep

whenever she was visiting her maternal house. The evidence on

record shows that the parents of Bhagyashri were not in a position to

meet the dowry demands, made by accused. Thus the appellants have

created a situation of extreme pressure where Bhagyashri was left

with no option but to commit suicide. In this regard, I rely on

Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) reported

in AIR 2010 SC 1446, wherein it is observed that “where the accused

had, by his acts or omission or by a continued course of conduct,

created such circumstances that the deceased was left with no other

option except to commit suicide, in which case, an ‘instigation’ may

have to be inferred”. I also rely on the judgment of the Hon’ble

Supreme Court in the case of Ramesh Kumar v. State of

Chhattisgarh reported in AIR 2001 SC 3837, wherein it is held that,

“a reasonable certainty to incite the consequences must be capable of

being spelt out. More so, a continued course of conduct is to create

such circumstances that the deceased was left with no other option

but to commit suicide”.

20. It must be, however, stated that the evidence regarding

harassment or ill-treatment is quite vague and cannot be believed but

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13 APEAL200.2003

it is well settled as held in Arvind Kumar Anr. v. State of M.P.

reported in AIR 2007 SC 2674 M. Narayan v. State of Karnataka

reported in AIR 2015 SC (Supp) 2001, that persistent demand of

dowry amounts to ill-treatment and such persistent demands have

driven Bhagyashri to commit suicide. I, therefore, find that the

finding of learned trial Judge that Bhagyashri committed suicide and

the appellants had abetted the commission of suicide is proper and

needs no interference.

21. However, the learned trial Judge committed error in

convicting the appellant for both the offences u/s 304B r/w 34 as

well as 306 r/w 34 of IPC. The charge could have been u/s 304B of

IPC, or in alternative, u/s 306 of IPC and conviction for single act

could have been only for one offence. The conviction for two

offences was certainly not justified. As far as offence u/s 498A r/w 34

of IPC is concerned, it is already included in the charge u/s 306 r/w

34 of IPC. Therefore, the judgment of conviction will have to be

altered to that much extent. I therefore hold the appellant No. 1

guilty for offence u/s 306 r/w 34 of the IPC only.

22. The appellant has been convicted u/s 306 r/w 34 of IPC

and sentenced to suffer rigorous imprisonment for seven years and to

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14 APEAL200.2003

pay fine of Rs. 500/-, in default to suffer simple imprisonment for

three months. In absence of specific evidence regarding ill-treatment

and harassment apart from the persistent dowry demand, this

punishment is disproportionately high and therefore it deserves to be

reduced.

23. Considering the facts circumstances, I deem it

appropriate to reduce the sentence to rigorous imprisonment for

three years and to pay fine of Rs. 500/-, in default to suffer simple

imprisonment for three months. The points formulated are answered

accordingly. Hence, the following order.

ORDER

1. The appeal presented by appellant No. 1 – Manik S/o

Shriram Bondare is partly allowed.

2. The order of conviction u/s 304B r/w 34 of the IPC is set

aside and conviction u/s 306 r/w 34 of IPC recorded

against the appellant No. 1 in Sessions Case No. 142 of

2001 on 21.02.2003 is maintained, however, the sentence

is reduced to rigorous imprisonment for three years and to

pay fine of Rs. 500/-, in default, to suffer simple

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15 APEAL200.2003

imprisonment for three months. The appeal of appellant

No. 2 is already abated.

3. The appellant No. 1 shall surrender before the learned trial

Court within four weeks from today.

[ A. M. DHAVALE ]
JUDGE

sgp

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