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Arun @ Arvind Namdeo Rathod vs State Of … on 12 July, 2018

Appeal.174.02
1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.

CRIMINAL APPEAL NO. 174/2002

Arun @ Arvind Namdeo Rathod
Aged 25 years , R/o Sakhara
Tah.Digras, Dist. Yavatmal ..APPELLANT

versus

State of Maharashtra
Through Police Station Officer
Digras, Dist. Yavatmal. ..RESPONDENT

……………………………………………………………………………………………………………………………..
None for the appellant
Mr. H.D.Dubey, APP for respondent
………………………………………………………………………………………………………………………………

CORAM: MRS.SWAPNA JOSHI, J.

DATED : 12th July, 2018

ORAL JUDGMENT:

1. The instant Appeal has been directed against the judgment and order

dated 26th March, 2002 in Sessions Trial No. 89/97 passed by the learned 1st Ad-hoc

Additional Sessions Judge, Pusad, convicting the appellant of the offences punishable

under section 498A of the Indian Penal Code and sentencing him to suffer RI for three

years and to pay a fine of Rs.1,000/-, in default, to suffer RI for one year. The appellant

was further convicted for offence punishable u/s. 306 IPC and sentenced to undergo RI

for seven years and fine of Rs.1,000/-, in default, to suffer RI for one year. The appellant

was also convicted for offence punishable u/s 304(B) of IPC and sentenced to suffer RI

for five years and to pay a fine of Rs.1000/-, in default, to undergo further RI for one

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year. The substantive sentences of the accused were ordered to be run concurrently.

2. The prosecution case in brief is that, the complainant-Punaram Chavhan

(PW1) was the resident of village Talegaon, Tq.Darwah, Dist.Yavatmal. Deceased-Kavita

was the daughter of complainant. She got married with the appellant on 6.5.1996 as per

the customs and traditions, at village Talegoan. During the marriage of Kavita, the in-laws

of Kavita demanded a sum of Rs.25,000/- as dowry. Accordingly, the complainant handed

over an amount of Rs.20,000/- to them, in cash, however, an amount of Rs.5,000/-

remained to be paid by him as he could not arrange for the same. After marriage,

Kavita started residing with her husband and in-laws at her matrimonial home at village

Sakhara. For initial few days, the appellant and in-laws of Kavita behaved properly with

her, however after a lapse of about six months they started harassing her for the amount

of Rs.5,000/- which remained to be paid at the time of marriage. Whenever Kavita used to

visit the house of her parental home, she used to complain about the ill-treatment bing

meted to her at the hands of the appellant and her parents. Lastly, Kavita visited the

house of complainant on the birth anniversary of Lord Hanuman along with her in-laws.

At that time, she made demand of money. The complainant told that he would pay the

amount as soon as he receives the sale proceeds of cotton. About 4 to 5 days after the

Hanuman Jayanti, the appellant visited the house of the complainant and took Kavita

with him. On 7.5.1997 at about 8.00 in the morning, the complainant received information

from his son-Prithviraj that Sakru Jadhav and Charan Jadhav who were residents of

Ghatkinhi, visited the house of Ravi Dhok and asked to enquire whether Kavita had

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come to her parents house. Therefore, Ravi Dhok visited the matrimonial house of

Kavita to enquire as to whether Kavita had come to stay with them and whether there

was a theft in her house. On receiving the information from his son the complainant

proceeded to the matrimonial house of Kavita and noticed that many people had gathered

in front of the house of one Sumanbai. He further noticed the dead body of his daughter

floating in the well. On the next day, the complainant lodged oral report (Exh.43) against

the appellant and in-laws of Kavita.

3. On 7.5.1997, Police Inspector-Bhalchandra Mahajan (PW5) who was

attached to Digras Police Station recorded the complaint of the Police Patil (Exh.28). On

the basis of the said complaint, PW5 registered the marg report. On the same day, the

complainant PW1 lodged his complaint. On the basis of the said report, an offence

came to be registered vide C.R. No. 88/1997. PW5 then visited the place of the incident

and prepared spot panchnama (Exh.35). He prepared inquest panchnama of the dead

body of the deceased (Exh.31). He prepared a separate seizure panchnama in respect

of gold ornaments which were on the person of deceased-Kavita vide Exh.36. PW 5

then referred the dead body of Kavita for post-mortem on the same day. PW5 received

the PM report in due course (Exh.38). PW5 also recorded the statements of the

witnesses. After completion of investigation charge-sheet was filed. The case was

committed to the court of Sessions. On analysis of the evidence and after hearing both

sides, the learned trial Judge convicted the appellant, as aforesaid.

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4. I have heard learned APP Mr H.D. Dubey, for respondent-State. Learned

Advocate for the appellant remained absent. I have gone through the written notes of

arguments furnished by the Advocate for the appellant, which are on record. The defence

of the appellant as seen from the written notes of arguments appear to be of false

implication. It is submitted that due to the improvements in the version of the prosecution

witnesses, their testimony is not found to be reliable one. It is further submitted that all

the prosecution witnesses are related to each other and there are no independent

witnesses with regard to the alleged ill-treatment suffered by deceased-Kavita. The

learned APP has supported the impugned judgment and order.

5. In order to substantiate its case, the prosecution has heavily relied upon

the testimony of PW1-Punaram Chavan, who is the complainant and father of deceased

Kavita. The testimony of PW1 shows that the marriage of Kavita with the appellant took

place on 6th May 1996. PW1 agreed to pay dowry amount of Rs.25,000/- in the marriage.

Out of the said dowry amount of Rs.25,000/- PW1 paid an amount of Rs.20,000/- at the

time of marriage and the balance amount of Rs.5000/- remained unpaid by him due to

financial crunch. PW1 however promised to pay the said amount. He further submitted

that the accused persons treated his daughter nicely for the initial period, thereafter the

accused persons started demanding balance amount of dowry from Kavita. He stated

that the husband and mother-in-law of Kavita, started assaulting her daughter on account

of demand of dowry. All the accused started harassing and ill-treating Kavita. Whenever

Kavita used to visit her parental home, she used to disclose the fact of harassment at

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the hands of her husband and in-laws. She used to say that the accused had demanded

dowry and he should satisfy their demand. PW1 used to pacify her that he would pay

the said amount after selling cotton. PW1 then deposed that at the time of Hanuman

Jayanti in the year 1997, Kavita visited his house. thereafter the appellant came to his

house and at that time there was exchange of hot words between his daughter and the

appellant. He tried to pacify the appellant and his daughter saying that he would pay the

balance amount after receipt of amount of sale proceed of cotton. Kavita also said that

accused persons are harassing and assaulting her on account of demand of dowry. PW 1

stated that he sent the appellant and his daughter back to their house. After about 8 to 10

days the persons from village Sakhara by name Sakru Jadhav and Charandas visited his

village and they contacted one Ravi Dhok. Ravi Dhok informed the wife of PW1 that

Kavita is not seen in the house since last night and some gold ornaments were stolen.

The complainant then along with his brother and other persons from village Sakhara went

to the matrimonial house of Kavita. He noticed that some persons had gathered near the

well situated in front of the house of Sumanbai and the dead body of her daughter was

lying in the well. On the next day, i.e. 8.5.1997, PW1 proceeded to the Police Station

and lodged his complaint (Exh.43).

6. During cross-examination, PW1 denied that on enquiry he came to know

that while fetching water, his daughter fell down in the well and died. PW1 admitted that

in his community, there is a custom to give dowry. In the cross-examination PW1 stated

that the family members of the appellant and other relatives were present when the talks

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of marriage took place. He however stated that he does not remember the names of the

relatives of the appellant who were present at the time of the talk. He further stated that

he had paid an amount of Rs.20,000/- as dowry to the accused persons prior to the

marriage of his daughter. He however did not remember as to how many days prior to

the marriage the said amount was handed over to them. He stated that he had secured

the loan amount of Rs.30,000/- . He had arranged the amount by mortgaging his land to

one Pramod Joshi of village Talegaon. He stated that thereafter he paid the amount of

Rs.20,000/- to the appellant. PW1 did not remember the date of execution of the sale

deed. According to him, he paid the amount to accused no.2-Namdeo, father-in-law of

the deceased-Kavita at village Talegaon, in the presence of Govinda, Madhavrao,

Deosingh. PW1 further clarified this fact was not disclosed by him to the police.

7. Thus, so far as the evidence with regard to demand of dowry is

concerned, the testimony of PW1 does not show that the appellant or his relatives had

demanded dowry amount from PW1. The testimony of PW1 does not show particularly

that the appellant was present at the time of talks of his marriage and he has personally

demanded any amount. Even the testimony of PW1 shows that he himself had agreed to

pay the dowry amount of Rs.25,000/- at the time of marriage of his daughter Kavita.

Thus, there is no convincing evidence of PW1 on the point of demand of dowry of Rs.

25,000/- by the appellant at the time of his marriage. PW1 failed to state presence of the

appellant at the time of the said talk. Significantly, the persons in whose presence PW1

had allegedly paid the amount to accused no.2-Namdeo, i.e. father in law of the

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deceased, were not examined by the prosecution, in order to show that the alleged dowry

amount was paid to the accused persons, prior to the marriage of Kavita. Even PW1

has failed to state before the police while recording his complaint, with regard to the

presence of the persons when the dowry amount was handed over to the accused

persons.

8. The FIR is silent on the aspect of demand of remaining dowry amount of

Rs.5000/- by the appellant. The oral report (Exh.43) which is a contemporaneous

document, demonstrates that at the time of Hanuman Jayanti, Kavita was brought to

Talegaon by her in-laws and at that time, she made demand of money. PW1 told her

that he would pay the said amount as soon as the cotton sale proceeds will be received.

After about 4 to 5 days, his son-in-law came to Talegaon and took Kavita along with

him. Thus, the oral report (Exh.43) does not reveal that the appellant made any demand

of remaining amount of dowry to PW1. The evidence of PW1 shows that at the time of

Hanuman Jayanti, Kavita visited her parental house and thereafter the appellant also

joined her. At that time there was exchange of some hot words between deceased-

Kavita and the appellant. PW1 tried to pacify them and said that he would pay the

balance amount. Significantly, the said version particularly about the altercation between

Kavita and appellant, does not find place in the oral report (Exh.43). It appears to be an

improvement made by PW1 in that regard. PW1 has not categorically stated that the

said altercations were with respect to the balance amount of dowry. Significantly, the oral

report is also silent on the aspect of Kavita telling her father about the ill-treatment at the

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hands of the appellant, at the time of her visit and the occasion of Hanuman Jayanti. The

testimony of PW1 does not show that on the occasion of Hanuman Jayanti the appellant

demanded the balance amount of dowry to PW1. It is worthwhile to note that during the

cross-examination, PW1 failed to state the exact date on which his daughter disclosed

that the accused persons are harassing and assaulting her on account of non-fulfillment

of remaining amount of dowry.

9. Thus, the testimony of PW1 is not consistent on the point of demand of

dowry by the appellant. Significantly PW1 has, in terms, stated that he has not lodged

any complaint regarding the harassment of his daughter at the hands of the accused

persons with Police Station at any point of time before her death. PW1 had also not

tried to organize the meetings of Panchas of his community. It was suggested to PW1

that the father of appellant had selected Kavita as a match for his son, even through he

was poor only because Kavita was very beautiful. PW1 denied that his daughter had

been to the well for fetching water and she lost her balance and fell down in the well and

died due to drowning. Thus, the testimony of PW1 does not inspire confidence.

10. The prosecution has further examined PW2-Prakash Chavan and PW 4-

Deorao Rathod, uncles of deceased Kavita. PW2 -Prakash stated about the demand of

dowry amount of Rs.25,000/- by the accused persons at the time of marriage. He stated

that an amount of Rs.20,000/- was paid at the time of fixing the marriage and Rs.5,000

had remained to be paid. It is stated that initially good treatment was given to Kavita by

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her husband and in-laws, however, after about 4 to 6 months of the marriage, the

accused persons started ill-treating and harassing her on account of balance amount of

Rs.5,000/-. According to PW2 once or twice the amount of Rs.5000/- was demanded by

the appellant. The appellant was pacified that the balance amount would be paid after

receipt of the amount of sale of cotton. According to PW2 at the time of Hanuman

Jayanti, Kavita informed him that accused persons are harassing and giving cruel

treatment to her on account of non-fulfillment of balance amount of Rs.5,000/-.

Significantly, during the cross-examination, an improvement was pointed out in the

version of PW2 that at the time of Hanuman Jayanti he as well his brother-Punaram

(PW1) tried to pacify the appellant by telling that they will pay the balance amount of

Rs.5,000/- after receipt of sale-proceeds of cotton. The said improvement goes to the

root of the case and it creates doubt whether, in fact, the appellant had demanded the

said amount from PW2 at the time of Hanuman Jayanti.

11. The testimony of PW4-Deorao Rathod shows that he has stated in his

cross-examination that he does not remember the exact date on which amount of dowry

of Rs.20,000/- was handed over to the appellant. According to him, the amount of Rs.

20,000/- was not paid in his presence and he was not present at the time of settlement of

marriage.

12. The testimony of cousin sister of Kavita, namely, Sumanbai Chavan

(PW3) shows that for the balance amount of Rs.5000/-, the husband and in-laws of the

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Kavita, used to harass her and she used to disclose the said fact to her whenever

Kavita used to visit to the place of her parents. An improvement was pointed out in her

version that it was agreed to pay the dowry amount of Rs.25,000/- out of which an

amount of Rs.20,000/- was paid and Rs.5000/- remained to be unpaid. She has also

improved her version by saying that Kavita was harassed on account of demand and the

balance amount of dowry of Rs.5000. Thus, the testimony of PW3 also appears to be

doubtful.

13. In the case of Gurcharan Singh vs. State of Punjab reported in (2017)

1 SCC 433, it is held by the Hon’ble Apex Court that proof of the wilful conduct

actuating the woman to commit suicide or to cause grave injury or danger to life, limb

or health whether mental or physical, is the sine qua non for entering a finding of cruelty

against the person charged.

14. In 2012 CRI.L.J. 658 : [2012 ALL SCR 1138], the Hon’ble Apex Court has

observed that every quarrel between a husband and wife which results in a suicide

cannot be taken as an abetment by the husband and the standard of a reasonable and

practical woman as compared to a headstrong and over sensitive one has to be applied.

The Apex Court in the case of Amalendu Pal alias Jhantu .vs. State of W.B. reported in

AIR 2010 SC 512 : [2009 ALL MR (Cri) 3755 (S.C.), has categorically observed that

before holding accused guilty of offence u/s 306, the Court must scrupulously examine

the facts and circumstances of the case and also assess the evidence adduced before it

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in order to find out whether the cruelty and harassment meted out to the victim had left

the victim with no other alternative except to put an end to her life. Thus, there must be

proof of direct or indirect acts of incitement to the commission of suicide. Merely on the

allegation of harassment without their being any positive action proximate to the time of

occurrence on the part of the accused which led or compelled the person to commit

suicide, conviction in terms of Section 306 IPC is not sustainable. To attract offence u/s

306 of IPC, there must be positive act on the part of the person who is said to have

abetted the commission of suicide. The person must have played an active role either to

instigate or to facilitate the commission of suicide by the person committing suicide. In

the instant case, there is no iota of evidence even to remotely connect the accused to

infer that the accused committed such act with a view to abet the deceased to commit

suicide. Neither any act of instigation nor any act of facilitation to commit suicide by the

deceased can be inferred on the part of the accused in the light of the evidence on record.

15. A useful reference can be made of the case Sanju alias Sanjay Singh

Sengar .v. State of M.P. reported in (2002) 5 SCC 371 wherein a quarrel took place

between the appellant and the deceased. The appellant said to the deceased ‘to go and

die” and two days thereafter the deceased committed suicide. She made a suicide note.

The Hon’ble apex Court observed that “to go and die” itself does not constitute the

ingredient of instigation. The word “instigate” denotes incitement or urging to do some

drastic or inadvisable action or to stimulate or incite. It is further held that the presence of

mens rea is the necessary concomitant for instigation.

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16. In (2017) 1 SCC 433 in case of Gurcharan Singh v. State of Punjab, the

Hon’ble apex Court has observed in para 21 as under :-

“21. It is thus manifest that the offence punishable is one of abetment of the
commission of suicide by any person, predicating existence of a live link or
nexus between the two, abetment being the propelling causative factor. The
basic ingredients of this provision are suicidal death and the abetment
thereof. To constitute abetment, the intention and involvement of the
accused to aid or instigate the commission of suicide is imperative. Any
severance or absence of any of these constituents would militate against this
indictment. Remoteness of the culpable acts or omissions rooted in the
intention of the accused to actualise the suicide would fall short as well of the
offence of abetment essential to attract the punitive mandate of Section 306
IPC. Contiguity, continuity, culpability and complicity of the indictable acts or
omission are the concomitant indices of abetment. Section 306 IPC, thus
criminalises the sustained incitement for suicide.”

17. The Hon’ble apex Court in the case of S. S. Chheena .vs. Vijay Kumar

Mahajan and another, reported at 2010 Mh.L.J. Online (Cri.) (S.C.) 4 (2010) 12 SCC

190, in para 25 observed that, the abetment involves mental process of instigating a

person or intentionally aiding a person in doing of a thing. Without a positive act on the

part of the accused to instigate or aid in committing suicide, conviction cannot be

sustained. The intention the legislature and the ratio of the cases decided by this Court is

clear that in order to convict a person under section 306 of the Indian penal Code there

has to be a clear mens rea to commit the offence. It also requires an overt act or direct act

which led the deceased to commit suicide seeing no option and that act must have been

intended to push the deceased into such a position that he committed suicide.

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18. On overall assessment of the prosecution witnesses, it is noticed that

there is no convincing evidence of the prosecution witnesses on the point of demand of

dowry of Rs.25,000/- by the appellant and an amount of Rs.20,000/- was paid at the

time of the marriage to the appellant whereas balance amount of Rs.5000 remained to

be unpaid and on this count, the appellant used to ill-treat Kavita so much so that she

committed suicide by jumping into the well. It is not seriously disputed by the defence

that Kavita died a suicidal death. The spot panchnama does not show bucket or rope

near the well so that it can be presumed that Kavita had gone to the well to fetch water.

No doubt, Kavita died within the span of seven years of her marriage under unnatural

circumstances, however there is no convincing evidence on record to show that Kavita

was harassed by the appellant and due to the said harassment, she died in unnatural

circumstances. The prosecution has failed to prove that prior to death of Kavita, she was

subjected to cruelty or harassment at the hands of the appellant. Pertinently, the

learned trial Judge has acquitted the remaining accused except the appellant of the

allegations of cruelty and for unnatural death of Kavita. It is not clear when the allegations

were levelled against all the accused persons, why only the appellant was convicted.

Significantly, no injuries were found on the person of Kavita while conducting her post-

mortem.

19. The learned trial Judge ought to have considered the evidence led by

the prosecution in its right perspective. In view thereof the judgment and order passed

by learned trial Judge needs to be set aside. Hence the following order:

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ORDER

a) Criminal Appeal No.174/2002 is allowed.

b) The judgment and order of conviction and sentence passed by the learned 1st

Ad-hoc Additional Sessions Judge, Pusad, dated 26th February, 2002 is hereby quashed

and set aside.

c) The appellant is on bail. His bail bail bonds shall stand canceled.

JUDGE

sahare

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