IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 471 OF 1992
John Vasant Khandagale
age 28 years, staying during Anandwadi,Kalyan (East), Dist. Thane, presently,at Thane Central Prison.… Appellant (Orig. Accused)
The State of Maharashtra
at a instance of Kolsewadi Police Station, vide C.R. No.180/87, Sessions Case No.178/88.… Respondent (Orig. complainant)
None for a appellant.
Mrs. G.P.Mulekar, APP, for a respondent – State.
DATE : 1st March, 2011.
1. The appellant filed this interest severe a visualisation and sequence upheld by VII Addl. sessions Judge, Thane, in Sessions Case No.178/1988 whereby a appellant was convicted for a corruption underneath Section 304-B of IPC and condemned to bear R.I. for 7 years and was also convicted underneath Section 498-A of IPC and was condemned to bear R.I. for 3 years and to compensate excellent of Rs.200/-.
2. To state in brief, a assign box is that defunct Tai @ Urenica, daughter of PW-6 Vinayak and PW-7 Babanbai, was married to a accused- appellant about 5 years before her death. She always used to make censure before her relatives and sister PW-8 Margaret about a final of income by her father and quarrels on that count. On 18.12.1987 during about 1.30 a.m. her passed physique with series of gash and incised wounds was found nearby I.O.W. bureau during Kalyan. Police on patrolling avocation found a passed physique and after enquiry, her temperament was fixed. Immediately thereafter, inquisition panchnama was drawn and FIR was lodged by military and Crime No.81/1987 was purebred with Bazarpeth Police Station, Kalyan underneath Section 302 of IPC opposite opposite person. After that her relatives were contacted and it was suggested that a indicted used to kick and betray his mom on comment of approach of money. Therefore, a indicted came to be arrested on 7.1.1988. According to prosecution, on a basement of information given by a accused, a blade that was allegedly used as a arms of corruption and his garments were seized underneath a panchnama. The skill was sent to C.A. and news also received. After investigation, military filed charge-sheet for a offences underneath Sections 302, 304-B and 498A of IPC opposite a accused.
3. The indicted pleaded not guilty and he denied all a allegations about a approach of income and hurt to his wife.
4. On interest of prosecution, in all 9 witnesses were examined and several papers were also placed on record. The conference Court transparent a indicted for a corruption underneath Section 302 of IPC as there was no arguable justification to settle that a indicted had committed murder of his wife. However, a conference Court convicted a indicted for a offences underneath Sections 304B and 498A of IPC and condemned him as settled above.
5. At a outset, it competence be settled that initially, a indicted was in control from 7.1.1988 to 16.1.1989, when he was postulated bail. On 21.7.1992, he was again taken in control after a visualisation and sequence of self-assurance and as a box was not expected to be likely of in a brief time, he was expelled on his personal bond as per a sequence antiquated 18.10.1995. Thus, he was in jail for some-more than 4 years and 3 months when he was expelled by this Court. When a interest came adult for final hearing, nobody seemed for a accused-appellant. Even a aver released to him could not be executed. In these circumstances, a interest is taken adult for final hearing. we have left by a record and record with a assistance of a schooled APP.
6. PW-6 Vinayak, PW-7 Babanbai and PW-8 Margret are father, mom and elder sister of deceased. According to PW-6 Vinayak, indicted had demanded Rs.500/- that he had paid. According to him, he done that approach once or twice. He also deposed that whenever his daughter Urenica would come to parents’ place, she used to protest that her father used to argue and kick her. He also deposed that whenever there would be any quarrel, she used to come behind to parents’ place. According to him, in a month of August,1986, also she had come and complained that she was beaten by father and she was not prepared to go to his house. At that time, she stayed with relatives for about 15 days. Thereafter, she was taken behind by her husband. After Aug 1986, she had been to parents’ place twice or thrice and each time she was creation censure opposite her husband. PW-7 Babanbai deposed that they had given volume of Rs.500/- to him. Besides that, a bullion ring, utensils and saree were also given to her, yet he was not confident and used to make some-more final and each time he used to harass Urenica. She certified in a interrogate that after marriage, no income was paid to him. It indicates that volume of Rs.500/- was paid during a time of matrimony and not thereafter. PW-8 – Margret also spoke about a protest of her sister, about approach of income and quarrels.
7 PW-2 Subhadra was a landlady, in whose residence a indicted and his mom were vital as tenants. She herself was vital in a same building. According to her, she had never seen a indicted violence his wife. According to her, in her presence, indicted had never quarreled with or ill-treated his mom on comment of approach of money. She was announced antagonistic and was confronted with matter before a police. Anyhow, a landlady, in whose residence a indicted was vital with his wife, was an critical declare about their relationship, yet this declare did not support a prosecution.
8. Evidence of PW-1 Head Constable Suresh Chavan shows that between 17th and 18th December, 1987, he and dual other constables were on patrolling duty. During that night, nearby a I.O.W. Office, nearby railway line, they saw passed physique of a woman. Immediately, information was given to military hire and he lodged a news Ex.21. Thereafter, inquisition panchnama and mark panchnama were prepared. PW-4 Dr. Vishwanath Jadhav achieved autopsy hearing on a passed physique of deceased. He found 6 gash wounds on opposite tools of a physique and, according to him, genocide has occurred due to hemorrhagic startle due to gash injuries. Accordingly he released autopsy news Ex.25. The autopsy hearing was conducted by him on 18.12.1987 during about 9 a.m. According to him, genocide had occurred within 12 hours. This indicates that Tai @ Urenica was murdered during a night between 17th and 18th December,1987. By this evidence, it is valid shawl she died savage death.
9. PW-3 – Babu Shaikh was a shop-keeper during Anandwadi area. According to him, on 17 December, 1987, he had hermetic his emporium during about 9.30 p.m. He deposed that on 17.12.1987, he had seen a indicted and his mom going from his emporium towards Kalyan side. At 1.30 a.m., military called him and he identified a passed physique of a mom of a accused. Ths declare was examned to uncover that a defunct was final seen together with a accused. However, it is element to note that in a justification of Babu Shaikh, he nowhere settled during what time he had seen a indicted and his mom on that day. Merely since a indicted and his mom were seen together on that day, that competence not be a business opposite a accused. In fact, if there would be justification that shortly before her murder, she was seen together with a indicted and after that her passed body, with so many gash wounds, was found, responsibility would be on a indicted to explain n what resources his mom was murdered. However, a justification of PW-3 Babu Shaikh is not sufficient to pull any deduction opposite a accused.
10. The assign relied on liberation of garments and arms on a basement of information given by a accused. The C.A. news shows that blood was found on a arms and a clothes. Pw-5 Vishnu Mandal was a panch declare about a information given by a indicted and a find formed on that information. However, PW-5 Vishnu Mandal did not support a prosecution. According to him, he was called during a military station. A that time, another panch Verma was also benefaction and he was asked to put his signature on a panchnama and he did pointer it. According to him, during that time, a indicted was not seen by him with military nor any matter was done by a indicted nor any find was made. Therefore, PW-5 Vishnu was announced hostile. The second panch Varma was not examined as a assign case. For a purpose of information and discovery, assign relies on a testimony of PW-9 PSI Krishna Mohale. According to him, a indicted was arrested on 7.1.1988. While in control on 9.1.1988 he done a matter before a panchas and himself that he would furnish a blade from a place famous to him and accordingly a chit Ex. 28 was recorded. Thereafter a indicted led a military and panchas to a place and constructed a blade Article 17 that was seized underneath a panchnama in delay of Ex.28. On a same day, a indicted done a matter that he would furnish a garments that were on his chairman on a date of a offence. That information was available as a chit Ex.29 and afterward a indicted led a military and panchas to his residence and constructed his garments that were seized underneath a panchnama in delay of a chit Ex.29. These articles were referred to C.A. with a covering minute Ex.38 and a C.A. news Ex. 8 39 was received. The C.A. news reveals that on a garments of a deceased, tellurian blood of Group “A” was found. On a blade and a garments of a indicted also tellurian blood of Group “A” was found.
11. On a basement of a C.A. report, a assign wanted to settle that a indicted contingency have committed a corruption of murder. However, on clever peruual of chit of panchamna Ex.28 regarding seizure of knife, it is suggested that yet PSI Krishna Mohale claims to have seized a knife, a panchnama nowhere shows that a blade was wrapped and hermetic during a spot. It indicates that blade was collected in open condition and therefore it was not formidable to be tampered with. Even yet a panchnama Ex.29 shows that a garments were wrapped and sealed, yet PSI Mohale nowhere deposed on promise that a blade or a garments were indeed wrapped and hermetic during a time of recording panchnama. As such, there is no arguable justification that these critical muddemal articles were hermetic during a spot, statute out any probability of tampering with a same. When there is no approach justification and there is also no other inconclusive justification small seizure of garments and blade and that too yet following due procession can't be sufficient to reason a indicted guilty of murder. The conference Court deliberate all these aspects and transparent a indicted of a assign underneath Section 302 of IPC.
12. As a indicted was transparent for a corruption underneath Sec. 302, IPC, particularly speaking, it was not compulsory for this Court to re-appreciate and analyse a justification again, this Court has usually to find out possibly a self-assurance underneath Sec. 304-B can stand. In perspective of a justification led by a prosecution, it is transparent that during a night between 17th and 18th December, 1987, Tai @ Urenica was brutally murdered by somebody and her passed physique was found nearby a IOW Office. Prosecution has unsuccessful to infer that indicted had committed murder. Now a doubt is possibly a indicted can be hold guilty for a corruption underneath Sec. 304B merely since his mom had died assumed genocide and since there are allegations of violence and hurt by him on comment of some demands. Sub- territory (1) of Section 304-B defines “Dowry death” so :- “304-B. Dowry genocide (1) Where a genocide of a lady is caused by any browns or corporeal damage or occurs differently than underneath normal resources within 7 years of her matrimony and it is shown that shortly before her genocide she was subjected to cruelty or nuisance by her father or any relations of her father for, or in tie with, any approach for dowry, such genocide shall be called “dowry death”, and such father or relations shall be deemed to have caused her death.” Sub-section (2) provides for punishment. On examination of Section 304-B, it appears that a following resources or mixture contingency be established. (1) genocide of a lady should have been caused by any browns or corporeal damage or contingency have occurred differently than underneath normal circumstances; (2) genocide contingency have occurred within 7 years of marriage; (3) it contingency be shown that shortly before her genocide she was subjected to cruelty or nuisance by father or any relations of his her father and (4) such cruelty or nuisance was for or in tie with any approach of money. If such dowry genocide occurrs, a father or his relations shall be deemed to have caused her death.
13. “Dowry” is tangible in Section 2 of a Dowry Prohibition Act, 1961 so :
“2. Definition of “dowry” – In this Act, “dowry” means any skill or profitable confidence given or concluded to be given possibly directly or indirectly –ÿ(a) by one celebration to a matrimony to a other celebration to a marriage; orÿ(b) by a relatives of possibly celebration to a matrimony or by any other person, to possibly celebration to a matrimony or to any other person; during or before [or any time after a marriage] in tie with a matrimony of a pronounced parties, yet does not embody dower or mahr in a box of persons to whom a Muslim Personal Law (Shariat) applies.”
On a clever reading of a clarification of dowry, it appears that dowry means any skill or profitable confidence given or concluded to be given possibly directly or indirectly by one celebration to a matrimony to other celebration or by relatives of possibly of them. Such remuneration or agreement should be during or before or during any time after matrimony in John Vasant Khandagale vs The State Of Maharashtra on 1 March, 2011 tie with a matrimony of a parties. In a benefaction case, a justification of PW-7 Babanbai mom of a deceased, shows that during a time of marriage, volume of Rs.500/-, a bullion ring, some utensils and saree were given to Tai @ Urenica. The skill appears to be a traditinal benefaction done by a relatives to their daughter during a time of marriage. There is no justification to uncover that before, during a time of a matrimony or after a matrimony there was any approach of income or profitable skill in tie with a marriage. PW-6, father of a defunct deposed that indicted was perfectionist Rs.500/- and according to him, once or twice had paid. The justification of PW-6 Vinayak about remuneration once or twice is unsuitable with a justification of his wife, yet admits that a remuneration of Rs. 500/- was done usually during a time of marriage. It is probable that indicted competence have quarreled and beaten his wife, yet that does not meant that each argue or violence relates usually to approach of income or dowry alone. As per a justification of Vinayak, in a month of August, 1986, she had come to parents’ place. After 15 days, she was taken behind by a indicted and according to him, twice or thrice afterward she paid visits to parents’ place. He has not settled when she had final visited her parents’ place. Therefore, most there is no justification to settle that shortly before her genocide she was subjected to cruelty or nuisance for or in tie with approach of dowry.
14. Even yet genocide of Tai @ Urenica was not a healthy death, and was homicidal, unless it could be determined that genocide had occurred on comment of or in tie with a approach of dowry or her nuisance or woe was for approach of dowry. i t could not be treated as dowry death. Merely since a lady dies assumed genocide within 7 years after marriage, it can't be pronounced to be dowry genocide unless a genocide can be associated to approach of dowry. To explain this position, a few illustrations competence be given. Assuming that there was some approach and on that count a mom was ill-treated, however, if a genocide occurs in a engine collision or in an random glow in a residence or during a dacoity in a residence or if a lady is attacked, raped and afterwards murdered by some chairman unfriendly with a family of husband,, such genocide competence be unnatural, yet such genocide being not connected with a approach of dowry can't be treated as dowry death. To settle that it was a dowry death, it contingency be determined that genocide was connected with hurt or nuisance on comment of or in tie with approach of money.
15. In a benefaction case, as settled above, Tai @ Urenica died savage death, yet a assign has unsuccessful to settle that indicted had committed her murder and there is no element to bond her genocide with a lay approach or nuisance on that count. Therefore, it contingency be hold that a assign has unsuccessful to settle that a indicted had caused dowry genocide and therefore self-assurance of a indicted underneath Section 304-B of IPC can't be sustained.
16. For a aforesaid reasons, a Appeal is partly allowed. The self-assurance of a indicted underneath Section 498A of IPC and judgment thereunder is maintained. However, his self-assurance for a corruption underneath Sec. 304B and judgment thereunder is hereby set aside. As a indicted has already undergone judgment some-more than what was awarded for a corruption underneath Section 498A of IPC he will not be compulsory to be taken in control again.