Bombay High Court 2 Chhagan S/O Punjaba Jadhav-vs-The State Of Maharashtra on 30 June, 2011
Bench: Shrihari P. Davare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPEAL NO. 43 OF 2001
1 Sanjay s/o Chhagan Jadhav,
age 30 yrs., occ. Private Service,
R/O Itava, Tq.Gangapur,
Dist. Aurangabad,
2 Chhagan s/o Punjaba Jadhav,
age 60 yrs., occ. Agril.,
r/o Itava,Tq. Gangapur,
Dist. Aurangabad (Abated) …Appellants
[Orig. Accused Nos. 1 & 3]
VERSUS
1 The State of Maharashtra …Respondent …..
Shri G.C.Nawandar, advocate for appellant no.1
Appellant no.2 already abated, as per order, dated 6.6.2011. Shri B.V.Wagh, A.P.P. for respondent
…..
CORAM : SHRIHARI P.DAVARE, J.
DATED : 30th JUNE, 2011
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J U D G M E N T : –
1 The challenge in this appeal is to the conviction and sentence imposed upon appellant no.1 by way of judgment and order, dated 21.12.2000, rendered by the learned Additional Sessions Judge, Aurangabad, in Sessions Case No. 135 of 1996, thereby convicting him for the offence punishable under Section 498A r/w Section 34 of the Indian Penal Code and sentencing him to suffer R.I. for one year and to pay fine of Rs.1,000/-, in default of payment of fine further to suffer R.I. for two months; and convicting him for the offence punishable under Section 306 r/w Section 34 of the Indian Penal Code and sentencing him to suffer R.I. for three year and to pay fine of Rs.3,000/-, in default of payment of fine further to suffer R.I. for six months.
2 It appears that by the said impugned judgment and order, appellant no.2, namely Chhagan Punjaba Jadhav was also convicted and sentenced for the afore said offences, but since he is expired during he pendency of present appeal, present appeal stands abated in respect of appellant no.2 (original accused no.3) as per order passed on 6.6.2011. Moreover, original accused no.2 Zelabai Chhagan Jadhav also faced the trial along with the appellants herein in the afore said Sessions Case No. 135 of 1996 for the above referred offences, but she was acquitted for the charges levelled against her by the impugned judgment and order, dated 21.12.2000.
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3 The facts and events giving rise to the present appeal are as follows :-
Deceased Mangal i.e. daughter of PW1 Surmabai, married with appellant no.1 i.e. original accused no.1, namely Sanjay Chhagan Jadhav about six years back prior to the occurrence of the incident and they were blessed with one son out of the said wedlock. The acquitted accused no.2 Zelabai Chhagan Jadhav is the mother of appellant no.1 herein; whereas appellant no.2, who expired during the pendency of appeal, namely Chhagan Punjaba Jadhav was the father of appellant no.1 herein.
4 It is alleged that the accused used to make unlawful demand of amount from victim Mangal to be brought by her from her parental house and she was harassed and illtreated by the accused persons due to non- fulfillment thereof. It is also alleged that Surmabai, who, in fact, was doing labour work, once paid the amount of Rs.5,000/- by selling her land. It is further alleged that appellant no.2 i.e. father-in-law of victim used to consume liquor and whenever deceased Mangal used to give him a cup of tea, he used to catch her hand and used to see towards her with bad intention. The prosecution case further recites that although amount of Rs. 5,000/- was paid by the complainant Surmabai, the accused demanded further amount of Rs.10,000/-, which she failed to pay. In the result, the incident occurred from 11.00 a.m. on 16.9.1995 till 4.00 p.m. on 18.9.1995, since victim Mangal committed suicide along with her son of two years by 4 cra43.01
jumping into their well.
5 It is also the case of the prosecution that A.D. No. 23 of 1995 (Exh.27) was registered on the information given by police station Itawa and the said A.D. Was given to PW5 P.I. Prakash Lagad, who was attached to M.I.D.C. Waluj police station for investigation purpose on 18.9.1995. Accordingly, PW5 P.I. Prakash Lagad visited the spot and saw the dead body of one lady and one child in the well water and said child was tied to the said lady. The said dead bodies were removed and inquest panchanama was prepared at Exh.13. The said dead bodies were identified by the father-in-law of deceased Mangal, to be of deceased Mangal and her son Pappu and thereafter spot panchanama was prepared at Exh.12 and both the dead bodies were sent for postmortem purpose. 6 PW4 Dr. Wakale, who was attached to the Medical College and Hospital, Aurangabad, performed the postmortem on the said dead bodies on 17.9.1995 and prepared the postmortem reports of the said dead bodies i.e. Mangal at Exh.14 and her son at Exh.24 and viscera was preserved for examination purpose and report of the Chemical Analyser is produced at Exh.15. Since, said dead bodies were decomposed, final cause of death was not given, but after verifying all the record it was stated that it was a drowning case.
7 Thereafter PW1 Surmabai i.e. complainant i.e. mother of victim 5 cra43.01
Mangal lodged the complaint against the accused on 18.9.1995 at Exh.19 and the offence was registered against the accused under C.R. No. 134 of 1999 under Sections 498A, 304B r/w 34 of the Indian Penal Code. Accordingly, PW5 P.I. Lagad carried out the investigation and recorded the supplementary statement of the complainant and arrested the accused. PW6 H.C. Kalyan Pawar, who was attached to M.I.D.C. Waluj police station at the relevant time, seized the clothes on the dead bodies under seizure panchanama Exh.32. Moreover, PW5 P.I. Prakash Lagad also recorded statements of six witnesses including Tarabai and Shilabai, as well as he sent the viscera for examination purpose to the Chemical Analyser through P.C. 773 along with his covering letter Exh.28. PW5 P.I. Prakash Lagad received the postmortem notes on 9.10.1995 and also received the report from the Chemical Analyser on 8.11.1995 at Exh.15 and received final cause of death on 12.1.1996 at Exh.29. Accordingly, after completion of investigation, PW5 P.I. Prakash Lagad filed the charge sheet against the accused.
8 The charge against the accused persons was framed by the learned Additional Sessions Judge, Aurangabad on 20.11.1997 at Exh.3 for the offence punishable under Section 498A r/w Section 34 of the Indian Penal Code and Section 306 r/w Section 34 of the Indian Penal Code. The accused pleaded not guilty to the said charge and claimed to be tried. 9 In order to prove the charges levelled against the accused, the 6 cra43.01
prosecution examined as many as six witnesses, as follows :- PW1 Surmabai Rambhau Navture – Complainant,
mother of victim Mangal
PW2 Tarabai Govind Gangavane, relative of complainant PW3 Shilabai Bhimrao Jadhav, neighbourer of the complainant PW4 Dr. Manohar Asaram Wakle, who conducted postmortem on the dead bodies
PW5 P.I. Prakash Lagad, investigating officer PW6 H.C. Kalyan Pawar, who prepared panchanamas of seizure of clothes of victims.
10 The defence of the accused is of total denial. It is contended that they treated victim Mangal as their own daughter and never demanded any money from her mother taking into consideration her poor financial condition, as well as it is contended that deceased Mangal was behaving as a mad and whimsical person, and therefore, appellant Sanjay took her to Mohta Devi and gave her medical as well as spiritual treatment and even she was taken to her parental house. Accordingly, the accused denied the prosecution case and claimed to be innocent and prayed for acquittal, but did not examine any defence witness.
11 Considering the oral, documentary and medical evidence, adduced/produced by the prosecution and also considering the rival 7 cra43.01
submissions advanced by the learned Trial Judge, acquitted accused no.2, namely Zelabai Chhagan Jadhav, but convicted accused no.1 Sanjay i.e. appellant no.1 herein and accused no.3 Chhagan (deceased) for the offences punishable under Sections 498 and 306 r/w 34 of the Indian Penal Code and sentenced them as afore said. Being aggrieved and dissatisfied by the said conviction and sentence, appellants herein preferred the present appeal and prayed for quashment thereof. 12 In order to deal with the submissions advanced by the learned counsel for the appellant effectively, it is necessary to advert to the material evidence adduced/produced by the prosecution and in the said context,coming to the testimony of PW1 Surmabai Navture i.e. complainant, mother of victim Mangal, who stated that deceased Mangal was her daughter, who married with accused no.1 Sanjay about six years back and one son was born out of the said wedlock. She also stated that after said marriage Mangal suffered harassment for about six years. Her father-in-law used to consume liquor and when Mangal used to give him a cup of tea, he used to catch her hand. She further stated that they were demanding Rs.5,000/10,000/-. She paid amount at one time. Again they demanded the amount and she paid the amount to them by doing labour work. She also stated that the incident happened about five years back and accused no.1 Sanjay had come to her house and informed that Mangal was not in the house since 3.00 p.m. and requested her to accompany him. Then they searched for Mangal, but she was not found. 8 cra43.01
Then her father-in-law met her, and hence, she asked him about Mangal and thereupon he stated that she might have gone to relatives. Thereafter police personnel came to take her to Ghati Hospital. Mangal committed suicide in well on account of harassment along with her son. Thereafter, she stated that she filed complaint Exh.19 against the accused. 13 During cross-examination, she categorically stated that she cannot tell date of the marriage of Mangal, but stated that she was educated upto 8th standard. Her maternal uncle Dagdu settled the said marriage, but he is no more. Her nephew Govinda was also one of the mediators to settle the said marriage. She also stated that her maternal uncle took the responsibility of the said marriage and performed the same, but he died about 3-4 months back. She also stated that since she had no money, therefore, her maternal uncle performed the marriage. She further stated that she, her son, his wife and his two daughters are in her house and name of her son is Gautam and they reside in the rental premises and their livelihood is depended upon the labour work. She further stated that her husband expired when Mangal was about 1¼ years. She further stated that she used to visit matrimonial home of Mangal once or twice in a year and used to halt there. Her brother and maternal uncle used to visit her matrimonial home. However, no talk took place between herself and Mangal’s husband and father-in-law.
14 As regards the date of incident, she stated that at 9.00 p.m. 9 cra43.01
police jeep came and she went to Ghati Hospital and at that time her sister, namely Kasabai was with her. Her thumb impression was obtained on plain paper, but due to apprehension she did not ask the police for what purpose same was obtained. She further stated that what she stated before the court, same was stated by her before the police. She also admitted that Mangal did not file any complaint before police since beginning regarding harassment till her death. As regards her contention that Mangal’s father-in-law used to catch hand of Mangal while giving cup of tea, she stated that there is no such mention in her police station. She further stated that she learnt the said fact from Mangal during her visit to their house. Suggestion was given to her that accused never harassed Mangal and she was happy at her matrimonial home, but same was denied by her.
15 It is amply clear from the testimony of PW1 Surmabai that vague and ambiguous statements in respect of harassment have been made therein, even there is no specific case of PW1 in respect of alleged demand of amount whether it was Rs.5,000/- or Rs.10,000/- and even no purpose of said demand is mentioned therein. So also, there are no particulars, such as date, month and year in respect of the said alleged demands by the accused to Mangal. Pertinently, there is no specific allegation against the appellant no.1 herein in respect of unlawful demand and harassment due to non-fulfillment thereof. True it is, there are allegations against Mangal’s father-in-law, namely Chhagan Jadhav i.e. 10 cra43.01
appellant no.2 herein, who is already expired and appeal has been abated against him, and pertinently, there is nothing in the testimony of PW1 Surmabai to connect accused no.1/appellant no.1 herein with the alleged crime.
16 Coming to the deposition of PW2 Tarabai Govind Gangavane, who is maternal mother-in-law of PW1 Surmabai, she stated that Mangal married with accused no.1 Sanjay and after marriage accused started harassing her and Mangal used to disclose about the same before her. She also stated that her father-in-law used to drink at night time and used to ask water from her and whenever it is served to him he used to catch her hand with bad intention. She also stated that Mangal informed the same to her husband Sanjay when he came to house, but accused no.1 Sanjay did not pay any attention to the same, stating that he was unable to dissatisfy his parents. She further stated that mother of Mangal paid amount of Rs.5,000/- to Sanjay for digging well, but thereafter again he asked further amount of Rs.10,000/- to Mangal’s mother, but she was unable to pay the said amount. In the result, Mangal returned back to her matrimonial home and within 8 days thereafter the incident occurred i.e. Mangal was found along with her son dead in the well of the accused. 17 During cross-examination, she stated that she is uneducated and the incident occurred about 5 years back. She also stated that her statement was recorded by police. However, she did not state before 11 cra43.01
police that PW1 Surmabai received amount by selling her land. She also deposed that she did not state before police that PW1 Surmabai paid Rs. 5,000/- to Sanjay for digging well. She also stated before police that he asked further amount of Rs.10,000/- from PW1 Surmabai amounting to contradiction. She further stated that she did tell before police that Sanjay came to their house on Saturday for making inquiry about Mangal, but admitted that there is no such mention in her police statement amounting to omission therein and improvement in the testimony. She also stated that she never advised Mangal to file complaint in the police station. Suggestion was given to her that she knew nothing in respect of what she deposed, but same was denied by her. Suggestion was also given to her that she was deposing falsely at the instance of her mother, but same was also denied by her. She was also suggested that no harassment was given to Mangal by the accused, but same was also denied by her. 18 Considering the testimony of PW2 Tarabai, it appears that main allegations are against appellant no.2 Chhagan Jadhav, who is already expired. Moreover, there are no specific allegations against the appellant no.1 herein in respect of unlawful demand of money by him to deceased Mangal and harassment meted out to victim Mangal by him due to non-fulfillment thereof. Moreover, there are vital contradictions and omissions as mentioned herein above, which go to the root of the matter and diminishes the credibility of the testimony of PW2 Tarabai. In fact, she also admitted that she never advised Mangal to file complaint in the police 12 cra43.01
station and the said aspect speaks for itself.
19 Turning to the testimony of PW3 Shilabai Bhimrao Jadhav, wherein she stated that she knew PW1 Surmabai and also knew victim Mangal and she was knowing that Mangal married with accused no.1 Sanjay and Mangal used to come to Aurangabad to her mother’s house and at that time she used to call her for cup of tea and Mangal used to disclose about the harassment to her at the hands of the accused. She further stated that Mangal also disclosed before her that whenever she used to tell her husband about harassment, he used to say that he would keep some other woman. She also stated that Mangal further disclosed before her that accused no.1 Sanjay used to ask money from her. She further stated that 8 days prior to the date of incident, Mangal met her at her house and she asked amount from her mother as demanded by accused no.1 Sanjay. Hence, quarrel took place among themselves. Her mother ultimately failed to make the payment of the amount and thereafter within 8 days the incident of committal of suicide by Mangal along with her son on account of harassment occurred.
20 In cross-examination, she stated that since last 4-5 years PW1 Surmabai was her neighbourer, but she was not present in the marriage of Mangal. She also stated that she never visited Mangal’s matrimonial home and she does not know her maternal uncle, nor she knows her relatives. She further stated that the incident occurred about 4-5 years 13 cra43.01
back and PW1 Surmabai was residing near her house at the time of incident. She also stated that police recorded her statement after the incident. She admitted that she never stated before police that she used to call Mangal to her house for cup of tea, amounting to omission. Further she admitted that she never stated before police that accused no.1 Sanjay demanded money, amounting to vital omission. Hence, suggestion was given to her that she does not know about the incident, but same was denied by her. She also admitted that her relation with PW1 Surmabai was good being neighbourer. However, she denied that due to said relationship she deposed against the accused falsely.
21 The testimony of PW3 Shilabai reveals that the alleged disclosure made by deceased Mangal before her was stated by her in her deposition, but there are no specific allegations against the appellant no.1 herein and she has made general and vague statements. As regards the alleged demand made by Sanjay, there are no particulars, such as amount of the alleged demand, date, month and year of the said alleged demand, and therefore, general and vague statements in that respect, without particulars thereof, do not strengthen the prosecution case. Moreover, she also admitted that she has got cordial relations with PW1 Surmabai since they are neighbourers and the said aspect also cannot be overlooked. 22 That takes me to the deposition of PW4 Dr. Wakle, who has stated that he was attached to Medical College and Hospital, Aurangabad 14 cra43.01
at the relevant time i.e. 17.9.1995 and he and Dr.R.N.Kagne performed the postmortem on the dead body of deceased Mangalbai and the said postmortem reports in respect of Mangal and her son are produced at Exhs.14 and 24 respectively. He stated that no injury was found on her body and viscera was preserved and sent for examination purpose. He has received the chemical analysis reports at Exh.15. The statement of Chemical Analyser do not reveal any poison. He also stated that on account of decomposition of bodies they were unable to give final cause of death. However, after perusal of the entire record, he stated that it may be a drowning case. In cross-examination, he stated that drowning cases may be possible by accident.
23 Considering the testimony of PW4 Dr.Wakle, it is evident that he performed the postmortem on dead bodies of Mangal as well as her son on 17.9.1995, but he specifically stated that both the dead bodies were decomposed. Moreover, he categorically stated that there was no injury found on the dead body of deceased Mangal and said aspect speaks for itself and indicates that no physical harassment was meted out to victim Mangal by the accused. Moreover, said testimony also reflects that drowning cases may be possible by accident and possibility of accidental death of Mangal with her son cannot be ruled out. 24 On the afore said background, learned counsel Shri G.C.Nawandar for the appellant no.1 canvassed that there is absolutely no 15 cra43.01
evidence in respect of alleged cruelty against the appellant herein allegedly meted out by him to deceased Mangal and there is also no iota of evidence aiding or abetting by the accused no.1/appellant herein to the committal of suicide by her. Moreover, it is also submitted that there is no proximity between the alleged illtreatment and death of victim. Accordingly, it is canvassed that the ingredients of Section 498A and Section 306 of the Indian Penal Code are missing in the instant case, and there is no cogent and legal evidence to connect the appellant with the alleged crime. He further asserted that material accusations are against accused no.2, who is already expired and there are vague and baseless allegations against the appellant in respect of alleged illtreatment and harassment to the deceased Mangal, but no particulars thereof have been given, and hence, in the absence of such particulars, vague and ambiguous allegations cannot be accepted, and consequently, same cannot be believed. It is also canvassed that PW3 Shilabai had cordial relations with PW1 Surmabai and she is her neighbourer, and therefor, she is interested witness, and hence, her testimony cannot be believed.
25 As regards testimony of PW2 Tarabai, it is submitted that the said testimony suffers from vital contradictions and omissions, and hence, the credibility thereof diminishes. It is further submitted by learned counsel for the appellant that the testimony of PW1 complainant Surmabai is also vague and does not reflect any particulars in respect of harassment/illtreatment to Mangal and no specific instance of alleged 16 cra43.01
harassment has been stated by her, and therefore, it is submitted that such vague and ambiguous testimony cannot be construed trustworthy testimony to base conviction against the appellant/accused. 26 Moreover, learned counsel for the appellant also canvassed that the postmortem report discloses that there were no injuries on the dead body of deceased Mangal, which itself indicates that she was not meted with any violence/harassment/illtreatment before committal of suicide by her and that itself absolves the appellant herein from the charges levelled against him. Accordingly, learned counsel for the appellant urged that there is no cogent and incriminating legal evidence against the appellant herein to connect him with the alleged crime, and hence, present appeal deserves to be allowed by quashing and setting aside the conviction and sentence imposed upon him.
27 Learned counsel for the accused/appellant no.1 also canvassed that deceased Mangal was insane and she was under medical treatment, and hence, there is every possibility that she committed the suicide along with her minor son under phase of said insanity, and therefore, accused cannot be held liable and guilty therefor. 28 Learned counsel for the appellant relied upon the following observations made in the judicial pronouncement of this court in the case of Ravindra Pyarelal Bidlan and others -vs- State of Maharashtra, 17 cra43.01
reported in 1993 Cri.L.J. 3019.
“Sub-clause (b) of the explanation to S. 498A
provides that cruelty means 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. Sub-clause (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or, any person related to her to meet an unlawful demand. Hence, mere harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only where harassment is shown to have been committed
for the purpose of coercing a woman to meet the demands that is cruelty and this is made punishable under the Section. In other words, it is not every harassment or every type of cruelty that would attract Section 498A. It must be established that the beating or harassment was with a view to force the wife to commit suicide or to fulfill illegal demands of the husband or the in-laws. “
29 Learned counsel for the appellant also relied upon the following observations made in the judicial pronouncement of Full Bench of Punjab & Haryana High Court in the case of Krishna Lal and others -vs-Union of India and others, reported at 1994 Cri.L.J. 3472 ” Lastly Mr. Gaur contends that the provisions of Section 304B had done away with the mens rea to commit the
offence. Mens rea is essential requisite of a criminal offence. Thus, he contends that the provisions suffer from 18 cra43.01
the vagueness. There is no force in this contention as the requirement of proving that soon before her death the woman was subjected to cruelty or harassment by her husband or any relation of her husband for or in connection with any demand of dowry clearly shows that the Legislature had imbibed the necessary mens rea for offence of dowry death. ”
30 Learned counsel for the appellant further relied upon the following observations made by this court in the judicial pronouncement of this court in the case of Sarojakshan Shankaran Nayar and others-vs- State of Maharashtra, reported at 1995 Cri.L.J. 340.
” 3. . .
The expression cruelty postulates such a treatment as to cause reasonable apprehension in the mind of the wife that her living with the husband will be harmful and injurious to her life. Therefore, to decide the question of cruelty the relevant factors are the matrimonial relationship between the husband and wife, their cultural and temperament status in life, state of health, their interaction in their daily life which dominate the aspect of cruelty. “
31 Learned Additional Public Prosecutor countered the said argument vehemently and submitted that the prosecution examined as many as six witnesses to substantiate the charges levelled against the accused and PW1 Surmabai, who is the complainant has categorically stated about the illtreatment and harassment meted out to deceased Mangal by the accused. It is further submitted that PW2 Tarabai and PW3 Shilabai are the independent witnesses, who have narrated about the 19 cra43.01
illtreatment and harassment to deceased Mangal by the accused on account of non-fulfillment of unlawful demand of money, which ultimately led deceased Mangal to commit suicide along with her minor son and said very committal of suicide by deceased Mangal along with her son proves and establishes the degree of cruelty, to which she was subjected by the accused.
32 Learned Additional Public Prosecutor further submitted that PW1 Surmabai and PW3 Shilabai have categorically stated in their respective depositions that there was unlawful demand of Rs.5,000/Rs. 10,000/- by the accused to deceased Mangal and due to non-fulfillment thereof she was coerced to the harassment by them, which ultimately culminated into committal of suicide by her along with her son, and therefore, it is submitted that the prosecution has proved and established the ingredients of Section 498A and Sections 306 and 107 of the Indian Penal Code and proved the charges against the accused/appellant herein beyond reasonable doubt. Accordingly, learned Additional Public Prosecutor supported the impugned judgment of conviction, rendered by the trial court and urged that present appeal bears no substance and same is devoid of any merits, and therefore, same be dismissed. 33 I have perused the ocular, documentary and medical evidence adduced/produced on record and also perused the impugned judgment and order, dated 21.12.2000 and heard the submissions advanced by the 20 cra43.01
learned counsel for the parties anxiously and it is amply clear that there is no cogent and legal evidence against the appellant no.1 herein in respect of alleged cruelty allegedly meted out by him to deceased Mangal and there is absolutely no iota of evidence in respect of alleged aiding and abetting by him to the committal of suicide by her. PW1 Surmabai, mother of victim Mangal i.e. the complainant has made vague allegations that deceased Mangal suffered harassment for about six years after marriage and accused were demanding Rs.5,000/10,000/- from her and she paid amount at one time and again they demanded amount and besides that there is nothing in her testimony against the accused no.1, except she committed suicide in the well on account of harassment along with her son. Pertinently, there are no particulars of dates, month/year in respect of alleged harassment meted out by accused no.1 to deceased Mangal. Moreover, there are no particulars about date, month and year in respect of alleged unlawful demand of Rs.5,000/10,000/- as well as there are no specific particulars about the further demand by the accused. So also, there are no particulars when she paid the amount to accused and how much amount was paid by her. As regards the further payment, there are no particulars how much amount was demanded by accused further and on which date, month and year. Moreover, there is no proximity between the alleged illtreatment/harassment by the accused and death of the victim. Pertinently, there are some allegations against appellant no.2 (original accused no.3), but he is already expired and appeal in his respect has been already abated. Thus, it is apparently clear that ingredients of 21 cra43.01
Section 498A of the Indian Penal Code are missing in the present matter. 34 Besides, the evidence of PW2 Tarabai is hampered due to material omissions and contradictions and there are also vague and ambiguous allegations, which cannot be culminated into legal evidence and even there are no particulars about the alleged harassment/illtreatment therein, and therefore, the credibility of her testimony diminishes. So also the testimony of PW3 Shilabai also contains vague and baseless allegations and even there are no particulars about alleged harassment/illtreatment therein.
35 As regards the alleged offence under Section 306 of the Indian Penal Code, it is also important to note that ingredients of Section 306 and 107 of the Indian Penal Code are also lacking in the present case and there is no cogent and legal evidence to connect the appellant with the alleged crime, since there are vague and baseless accusations against the accused appellant no.1 herein in the testimony of PW1 Surmabai, the complainant.
36 Moreover, the testimony of PW2 Tarabai suffers from vital omissions and contradictions in respect of the alleged offence under Section 306 of the Indian Penal Code, and hence, same cannot be construed as the basis for conviction against the accused/appellant no.1 herein. Moreover, the testimony of PW3 Shilabai also does not reflect the 22 cra43.01
involvement of the accused/appellant no.1 in the committal of suicide by the victim.
37 Moreover, the evidence of PW4 Dr. Wakle and postmortem notes Exhs. 14 and 24 disclose that there were no injuries on the dead body of deceased Mangal and the very said aspect speaks for itself and indicates that she was not meted out with any violence/harassment/illtreatment before committal of suicide by her. Moreover, the prosecution has failed to establish the nexus between the alleged cruelty at the hands of the appellant and committal of suicide by victim Mangal. Hence, I have no hesitation to hold that there is no cogent and incriminating legal evidence against the accused to connect the accused/appellant no.1 with the alleged crime under Section 306 of the Indian Penal Code.
38 Although the accused has not examined any defence witness, but the defence put forth by the appellant herein that victim Mangal was insane and she was under medical treatment and there is every possibility that she committed suicide along with her minor child, under the phase of insanity, cannot be ignored.
39 Moreover, the judicial pronouncements cited by the learned counsel for appellant no.1 can be relied upon, since the ratios and observations therein apply to the present case.
23 cra43.01
40 In the circumstances, having the totality of the evidence and entire survey of the matter, and also considering the judicial pronouncements cited by the learned counsel for the appellant no.1, I am inclined to accept the submissions advanced by the leaned counsel for appellant no.1 and there is no clinching incriminating evidence against the appellant to connect him with the alleged crimes, and hence, the conviction and sentence imposed upon him by way of impugned judgment and order, dated 21.12.2000 renders erroneous and unsustainable, and therefore, same deserves to be quashed and set aside, acquitting the accused/appellant no.1 in respect of the charges levelled against him by allowing the present appeal.
41 In the result, Criminal Appeal No. 43 of 2001 is allowed and conviction and sentence inflicted upon appellant no.1 (original accused no.1) by the judgment and order, dated 21.12.2000, rendered by the Additional Sessions Judge, Aurangabad, in Sessions Case No. 135 of 1996, for the offence punishable under Sections 498A r/w 34 and 306 r/w 34 of the Indian Penal Code stands quashed and set aside. Appellant no.1 is acquitted thereof and his bail bond shall stand cancelled. Fine amount, if any paid by appellant no.1, be refunded to him.
(SHRIHARI P. DAVARE),
JUDGE.
dbm/cra43.01
