1 APEAL532.2001
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 532 OF 2001
Yuvraj S/o Chango Kale,
Age : 28 years, Occu. Agriculture,
R/o. Moykheda Digar, Tq. Jamner,
Dist. Jalgaon. … the Appellants
VERSUS
The State of Maharashtra. … the Respondent
……….
Mr R. S. Shinde, Advocate for the appellant
Mr M. M. Nerlikar, APP for respondent/State
………….
CORAM : A. M. DHAVALE, J.
DATE : 12TH SEPTEMBER, 2017.
ORAL JUDGMENT :-
1. Vide the Judgment and Order dt. 09.11.2001 passed by the
learned IInd Adhoc Additional Sessions Judge, Jalgoan in Sessions
Case No. 10/1996, the appellant was convicted and sentenced for the
offences punishable under Sections 306 and 498A of the Indian Penal
Code (hereinafter referred to as “IPC”). For offence punishable u/s
306 of the IPC, he was sentenced to suffer rigorous imprisonment for
four years and to pay fine of Rs. 500/-, in default of payment of fine,
to suffer simple imprisonment for one month and for offence u/s
498A of the IPC, he was sentenced to suffer rigorous imprisonment
for one year and to pay fine of Rs. 500/-, in default of payment of
fine, to suffer simple imprisonment for one month.
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2. Deceased Yunubai was sister of the informant PW1-
Bhagwan. She had married to the appellant Yuvraj about five years
before the incident. As per FIR, dowry of Rs. 4,000/- was paid at the
time of marriage. Yunubai lived with her husband at Moykheda
Digar, Tq. Jamner, for two and half months. Thereafter, the
appellant complained about insufficient dowry and about his dislike
of Yunubai and made further demand of Rs. 5,000/-. As the maternal
relatives of the Yunubai were unable to meet the demand, Yunubai
was constrained to reside at her maternal house for a period of three
years. After Diwali in 1994, the maternal relatives of Yunubai took
help of some Mediators and reached Yunubai to her matrimonial
house. The informant Bhagwan and his mother had visited the
matrimonial house of Yunubai on 2-3 occasions and that time
Yunubai was complaining about ill-treatment to her and dowry
demand of Rs. 5000/- by her husband, parents in-laws and sisters-in-
law. In FIR, it is alleged that, on 26.05.1995 at 3:00 PM, Yunubai
came to her maternal house at Jamner and informed her brother that
her in-laws and husband had demanded dowry of Rs. 5,000/- from
her. PW1 Bhagwan persuaded her to resume cohabitation. It is
alleged that, her sisters-in-law i.e. Latabai Anita were visiting her
house and were scolding her on account of insufficient dowry and
were making dowry demands. On 06.10.1995 at about 4:30 pm
when PW1 was in the school, he received message that Yunubai has
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3 APEAL532.2001
died. When he went to her matrimonial house, he found that
Yunubai died due to consumption of poisonous insecticide. Froth was
oozing from her nostrils and mouth. PW1 accordingly lodged FIR on
the next date i.e. 07.10.1995 at Jamner Police Station and the crime
was registered at C.R. No. 280/95 u/s 306, 498A r/w 34 of the IPC.
The same was investigated into. The statements of material witensses
were recorded. Inquest spot panchanama was drawn. PM was
conducted on the dead body. After conclusion of trial, the charge-
sheet was submitted in the court. In due course, the case was
committed to the court of Sessions. Charge was framed at Exh. 53
against the appellant Yuvraj, his parents and his sisters for offences
u/s 306, 498A r/w 34 of IPC. The prosecution examined 7 witnesses.
The accused denied all the allegations and came with the case of
accidental death by inhaling the insecticide.
3. After considering the evidence on record, the learned IInd
Ad-hoc Addl. Sessions Judge, Jalgaon convicted accused No. 1 –
Yuvraj for the offences punishable u/s 306 and 498A r/w 34 of IPC
and awarded sentences as referred to above. Rest of the accused
were acquitted. Hence this appeal against conviction.
4. Shri. R. S. Shinde, learned counsel for the appellant argued
that, there is no evidence to show that the appellant had subjected
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4 APEAL532.2001
the deceased to cruelty or to dowry demands. The evidence of PW1,
3 5 in this regard is not reliable. There are vague allegations.
There is no material to show that the act of the appellant amounted
to abetment as defined u/s 107 of the IPC. It is also argued that, it
was not a case of suicide but it was accidental death by inhaling the
insecticide. He argued that the allegations are extremely vague and
those cannot be relied upon.
5. Per contra, Mr Nerlikar, learned APP strongly supported the
Judgment of the trial Court. He argued that there was persistent
dowry demand and ill-treatment which built pressure on the
deceased and she was left with no alternative but to commit suicide.
He pointed out that, deceased was deserted within 2.5 months after
the marriage on account of non payment of dowry and she had to
reside at her maternal house for three years. Thereafter, due to
persuasion of mediators she had resumed cohabitation but even
thereafter ill-treatment continued to her. Her mother had visited her
house and that time she had narrated the story about ill-treatment
being meted out to her at the instance of the appellant and her in-
laws. Besides, on 26.09.1995 i.e. 10 days before the incident, the
deceased had been to her brother’s house at Jamner and again
narrated the story about dowry demands and ill-treatment. The
accused have taken a false defence of accidental death which is ruled
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out by the evidence of Medical Officer. The deceased has committed
suicide within a period of 7 years from the date of marriage. The
appellant has not given satisfactory explanation for her committing
suicide. Hence, the evidence of PW1 PW5 should be believed and
the appeal should be dismissed.
6. The points for my consideration with my findings thereon
are as follows:
Sr. Points Findings
No.
(I) Whether the deceased committed suicide? In the Affirmative
(II) Whether the appellant abetted the In the Negative
deceased to commit suicide by
persistently subjecting her to cruelty and
ill-treatment?
(III) Whether the appellant subjected the In the Negative
deceased to ill-treatment and cruelty as
defined u/s 498A of IPC?
(IV) What order? As per final order.
REASONS
7. As to points No. 1: – There is evidence of brother and
mother of deceased that the deceased met with death due to
poisonous insecticide. Froth was oozing from her nostrils and mouth.
Her dead body was sent for post-mortem and PW2-Dr. Yusuf has
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6 APEAL532.2001
conducted the Post-mortem. He has found symptoms of poisoning by
insecticide. He found 50 ML of semi ductile fluid with mucus
mernrance conjested. The viscera was preserved and the stomach
contained organophosperous poison. CA report to that effect is at
Exh. 65. It was argued that, such poisoning is possible by
accidentally inhaling the poisonous substance. The Medical Officer
has not accepted this position. Besides, in accidental inhaling, there
could not have been any semi fluid found in the viscera as was found
in the stomach contents of the deceased – Yunubai. It is also to be
noted that, Yunubai was from a farmer’s family and after marriage
also, she was cohabiting with a farmer and it can be assumed that the
farmers and their relatives are aware about the dangerous effects of
the insecticide kept inside the house. Therefore, there is no possibility
of deceased accidentally inhaling the insecticide. I, therefore, find
that it was a case of committing suicide by deceased – Yunubai.
Admittedly, it is committed within 7 years of marriage. Point No. 1 is
thus answered in the affirmative.
8. As to points No. 2 3 : As per Section 113(A), the
presumption as to abetment of committing suicide by married woman
can be drawn when the bride has committed suicide within seven
years of the marriage and there is evidence to show that her husband
or relatives of her husband had subjected her to cruelty. Section
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113(A) discloses that it is a discretionary presumption and the court
has to take into consideration all the circumstances of the case for
drawing such presumption.
9. It is well settled that, mere death of a bride within seven
years of marriage or even within a very short period after the
marriage, is by itself not indicative of any dowry demands or ill-
treatment to her at the instance of the husband or in-laws. In State
of West Bengal v Orilal Jaiswal another 1994 CRI. L. J. 2104
(SC), it is held that, the prosecution has to rule out the possibility of
sensitive bride committing suicide on account of ordinary petulance
or discord in the married life of husband and wife occurring in day to
day activities.
10. Since there is no direct evidence, the prosecution has relied
on the fact that Yunubai was telling to her maternal relatives about
the dowry demands and ill-treatment to her by her husband and in-
laws.
11. The prosecution has examined seven witnesses, out of
which PW1 Bhagwan is the brother and the informant while PW5
Narmadabai is the mother of the deceased. From the nature of FIR
and the evidence on record, one can guess about the financial
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8 APEAL532.2001
condition of both the families. It is alleged that, dowry of Rs. 4,000/-
was demanded at the time of marriage but subsequently it has come
on record that this dowry was paid by consent and it included the
marriage expenses which were borne by the accused.
12. PW1 Bhagwan and PW5’s evidence show that after the
marriage Yunubai cohabited with her husband merely for 2 and ½
months. During this period, she was subjected to further demand of
Rs. 5,000/- and she was also subjected to taunting that she was not
liked by her husband and in-laws. After 2.5 months, she was brought
to her maternal house and the appellant declined to cohabit with her
unless the dowry was paid. Therefore, she resided at her maternal
house for three years. There is evidence of PW1 PW5 that, after
Diwali in 1994, with the help of Mediator Bhaskar Palve, Daulatrao
and Govind Kapse, the appellant and his relatives were persuaded
and deceased Yunubai resumed cohabitation. Thereafter she
cohabited with the appellant till her death on 06.10.1995 (for a
period of one year).
13. PW1 has stated that, during this cohabitation period, he
and his mother had visited the matrimonial house of deceased to
make inquiry of her well-being. At that time Yunubai told them
about the persistent dowry demands and about dislike by her
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9 APEAL532.2001
husband and in-laws. This fact was expressed by her to her brother
and mother. She also used to tell them that she was beaten. PW1
stated that, on 26.09.1995 about 10 days before suicide, at around
3.00 PM, deceased Yunubai had been to his house and told him that
her husband and in-laws were demanding dowry of Rs. 5,000/- and if
the amount would not be paid, she would not be allowed to stay.
PW1 stated that, she also told that her two sisters in-law had visited
her matrimonial house and had taken away sarees given to her by her
brother and they were also complaining about insufficient dowry
received by their brother.
14. In cross-examination, it is brought on record that, during
the period of three years, when his sister was residing with him, no
notice was issued by the accused nor any complaint was made to the
police. His evidence that, with the help of Mediator i.e. Ramkrushna,
he had persuaded the accused in order to resume cohabitation with
his sister, is by way of omission.
15. PW5 Narmada has also deposed about her daughter
Yunubai returning to her house about 2.5 months after marriage and
about dowry demands of Rs. 5,000/- as a condition precedent to
resume cohabitation put by the appellant. She stated that, since the
amount was not paid, her daughter remained with her for three
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years. Thereafter, efforts were made to resume cohabitation and
Yunubai started cohabiting with the appellant. She stated that, once
about 2.5 months after the marriage, she had gone to the house of
the accused, that time Yunubai had told her that she was being ill-
treated, beaten and starved. There was demand of Rs. 5,000/- and
there was threat that she would be divorced. Her remaining evidence
is regarding the incidents after she received the news of death of
Yunubai.
16. PW3 is a panch witness and neighbour of PW5. Apart from
deposing facts about spot panchanama, he has also deposed that
deceased Yunubai was his maternal sister and he had met her at her
maternal house after her marriage and that time she was complaining
about ill-treatment to her at the hands of the accused. He had also
learnt about dowry demand of Rs. 5,000/- made from her which was
disclosed by him to Yunubai’s brother.
17. On careful consideration of the evidence, I find that the
allegations regarding ill-treatment are vague. The words like
abusing, beating are used without date, time and place. Even at
many places the names of persons who had beaten her are not
disclosed. The material fact is that, as per evidence of PW1, on
26.09.1995, Yunubai had been to the house of her brother and made
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complaint of ill-treatment, dowry demand etc. but her mother is
totally silent about the same. It was argued that, her mother was
residing at different place. Still in the light of the facts stated earlier,
PW1 ought to have given information to his mother and ought to
have discussed the further plan. The allegations further disclose that
she was taunted on account of her looks. There is also evidence that,
there was demand of dowry of Rs.5,000/-. PW5 stated that she had
gone to the house of Yunubai and that time Yunubai complained to
her about dowry demand ill-treatment.
18. The previous and subsequent conduct of the parties is very
much relevant to determine the credibility of the evidence. It is true
that, for three years, deceased stayed at her maternal house and
thereafter resumed cohabitation. Considering the fact that the dowry
of only Rs. 4,000/- was demanded at the time of marriage and that
too inclusive of the expenses of the marriage, it is difficult to accept
that the appellants were subjecting deceased to ill-treatment on
account of not meeting the dowry demands. I find that, the evidence
regarding ill-treatment is extremely vague. Such vague evidence does
not inspire confidence. The conduct of PW1, PW5 and deceased-
Yunubai is not in conformity with the allegations of dowry demand
ill-treatment. Unfortunately Yunubai has committed suicide within 7
years from the date of her marriage but the reason for her suicide
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remains shrouded in the mystery. In this situation, it cannot be said
that as the accused has failed to explain the reason of suicide, the
reason put forth by the maternal relatives of deceased can be
accepted.
19. If there was persistent dowry demand, there would have
been some efforts at least to pay some amount or there could have
been some attempt to persuade the appellant and his relatives by
expressing inability of PW1 PW5 to pay dowry, but the subsequent
conduct does not disclose any such situation. As far as stay of the
deceased at her maternal house for 3 years is concerned, surprisingly
PW1 PW5 did not take any steps for 3 years to resolve the dispute
and persuade the appellant to resume cohabitation. Even after the
incident dt. 26.09.2015, PW1 did nothing to safeguard the life of his
sister. I, therefore, find that the evidence regarding dowry and ill-
treatment does not inspire confidence. There was similar evidence
against the appellant as well his parents and sisters. The ld. trial
Judge for the reasons best known to her discarded the same evidence
as against the parents and sisters while accepted the same against the
appellant.
20. There is no material to show that the accused created a
situation for the deceased Yunubai whereby she was left with no
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option but to commit suicide. Therefore, the conviction of the
appellant is not sustainable. Hence, the points formulated by me are
answered in the negative. Hence, the following order.
ORDER
1. The appeal presented by appellant – Yuvraj S/o
Chango Kale is allowed.
2. The Judgment and Order dt. 09.11.2011 passed by the
learned IInd Adhoc Additional Sessions Judge, Jalgoan
in Sessions Case No. 10/1996 convicting and
sentencing the appellant for the offences punishable
under Sections 306 and 498A of the Indian Penal Code
is set aside.
3. The bail bonds of the appellant stand forfeited. The
appellant-accused shall furnish fresh bail bonds of Rs.
10,000/- with one surety in the like amount u/s 437A
of the Code of Criminal Procedure.
[ A. M. DHAVALE ]
JUDGE
sgp
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