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Bhanudas Laxman Nepte And 3 Others vs State Of Mah.Thr.Pso Washim on 13 June, 2018

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

Criminal Appeal No.224 of 2005

1] Bhanudas Laxman Nepte,
Aged about 40 years, Occ.- Agriculturist,
R/o.-Village Warla, Tq.and Distt. Washim.

2] Smt. Neelabai w/o Laxman Napte
Aged 75 years, Occ.- Household,
R/o.-Village Warla, Tq.and Distt. Washim.

3] Vishnu Laxman Napte,
Aged 37 years, Occ.- Service, R/o.-Village Jaipur,
P.O. Jaipur, Distt. Washim.

4] Smt. Indubai w/o Vishnu Napte,
Aged 37 years, Occ.- Household, R/o.-Village Jaipur,
P.O. Jaipur, Distt. Washim. …. Appellants.

-Versus-

State of Maharashtra,
through Police Station Officer, Police Station Ansing,
Tq. and Distt. Washim. …. Respondent.

Shri R.M. Daga, Adv for appellants.
Shri Vishal Gangane, APP for State.

Coram : Manish Pitale, J.

Dated : 13
June, 2018.

th

ORAL JUDGMENT

The appellants herein have challenged their conviction under
Sections 498A and 306 read with Section 34 of the Indian Penal Code

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(for short, ‘IPC’) for which they have been sentenced to undergo rigorous
imprisonment for a period of one year and five years respectively and to
pay fine amounts of Rs. 1,000/- and 3,000/- respectively. By the
impugned judgment and order, the trial Court has found that the
prosecution was able to prove the charges levelled against the appellants
beyond reasonable doubt for having committed the aforesaid offences.
The appellant no.1 is the husband of deceased Kantabai, while appellant
no.2 is the mother-in-law, appellant no.3 is the brother-in-law and appellant
no.4 is the wife of appellant no.3.

2. In the present case, the prosecution was initiated against the
appellants as they were charged with being responsible for the death of
said Kantabai, who had hanged herself on a tree in a field which was
about three kilometers from the house where the appellants were residing
along with the deceased. The incident had occurred on 11-12-2003, in the
evening at about 7.50 pm. The report in respect of the incident was
lodged on the next day i.e. on 12-12-2003 at about 10.50 p.m, which was
more than 24 hours after the dead body of Kantabai was noticed hanging
on the tree. The report was lodged by Kantabai’s father, complainant
(PW-1) and it was a typed written report. A perusal of the report shows
that it was drafted in the form of an application to the concerned Police
Station.

3. On the basis of the said typed written report which bears the
thumb impression of complainant (PW-1), First Information Report (FIR)
was registered against the appellants for having committed the aforesaid
offences. The crux of the complaint was that the appellants had harassed

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the deceased Kantabai and that she was driven to commit suicide. It was
mentioned in the said report that a demand of Rs. 50,000/- was made by
appellant no.1 (husband of deceased) for expenses towards the
construction of new house that had been undertaken by appellant no.1
and that the deceased had been harassed by the appellants in connection
with the said demand. There were allegations made about the deceased
having been harassed by the appellants even prior to the said demand.

4. Post mortem was conducted on the body of the deceased and
the report demonstrated that she had died due to asphyxia caused by
hanging. It was noticed in the post mortem report that there was no injury
on the body of the deceased and that there was only one ligature mark
around the neck where fracture of thyroid cartilage was found. The
Investigating Officer (PW-4) undertook investigation on the basis of
registration of FIR against the appellants and submitted charge-sheet. The
appellants were charged with the aforesaid offences and they were put to
trial. The prosecution examined four witnesses in support of its case.
(PW-1) Punjaji, was the father of deceased, (PW-2) Janardan, was the
brother of deceased, (PW-3) Sopan was the son of PW-2 and (PW-4)
Maroti Awaghale was the Investigating Officer.

5. On the basis of the oral and documentary evidence on record,
the trial Court found that there were three reasons put forth by the
prosecution for ill-treatment and harassment allegedly meted out to
deceased Kantabai. These reasons were identified by the trial Court as :-

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(a) the deceased did not give birth to a male child,
(b) the deceased had improper eye sight and
(c) the deceased was asked to bring Rs, 50,000/- from her parents for
putting a slab on newly constructed house.

6. Upon analysis of the material and evidence on record, the trial
Court found that the first two reasons for ill-treatment were not made out,
but the demand of Rs 50,000/- and harassment in that context meted out to
the deceased was clearly made out on the basis of the evidence of the
prosecution witnesses. On this basis, the trial Court concluded that the
appellants had indeed inflicted cruelty upon the deceased under
Section
498A of the IPC and that they had driven her to commit suicide, making
them liable under
Section 306 of the IPC also. On this basis, the trial Court
passed the impugned order convicting and sentencing the appellants.

7. Shri R.M. Daga, learned Counsel appearing for the appellants,
while assailing the findings of the trial Court, submitted that there was
insufficient material on record to prove that the appellants were guilty of
the offences for which they were charged. It was submitted that there was
hardly any evidence to show demand of Rs. 50,000/- from the deceased by
the appellants, as claimed by the prosecution. It was submitted that the
incident took place about 11 years after the marriage and that other than
vague statements made by the prosecution witnesses there was nothing to
show that there had been any incident of harassment against the
deceased during the subsistence of marriage for a long period of 11
years. It was contended that the allegations were made only after the
incident had occurred. Even in respect of alleged demand of Rs. 50,000/-,

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the prosecution witnesses had failed to bring on record any concrete
evidence. It was further submitted that such a demand was made for
part expenses towards the construction of house. Therefore, it could not
be said to be a demand as defined under explanation-(b) to
Section 498A
of the IPC. It was further submitted that there were material
improvements made in the evidence of the prosecution witnesses and a
perusal of the evidence of Investigating Officer (PW-4) demonstrated that
the crucial evidence that supported the defence was deliberately not
brought on record. On this basis, it was submitted that the impugned
judgment and order deserved to be set aside and the appellants
deserved to be acquitted.

8. On the other hand, Shri Vishal Gangane, learned APP,
submitted that the evidence and the prosecution witnesses particularly
(PW-2) Janardan demonstrated that the appellants had indeed made
demand of Rs. 50,000/- from Kantabai and that she was harassed in
connection with the said demand and even assaulted, driving her to
commit suicide. It was submitted that the trial Court had correctly
appreciated the evidence brought on record while convicting and
sentencing the appellants in the aforesaid manner. It was submitted that
the appeal deserved to be dismissed.

9. In the present case, the FIR was registered after more than 24
hours of the incident and it was registered on the basis of a typed written
complaint which bears the thumb impression of complainant (PW-1). In
cross examination, the said witness has clearly admitted that 4 to 5
persons of his village were with him, they brought the typed report and they

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obtained his thumb impression on the same, which was then lodged with
the Police Station. Thus, the very initiation of process of registration of
offence against the appellants appears to be an afterthought and the
manner in which the complaint has been drafted, shows that it was based
on consultation and with an intention to implicate the appellants by filing
false report after the deceased was found hanging from a tree. The
tenor of the report also suggests that it was well thought out and it does
not appear to be spontaneous. In any case, even in the said report specific
allegation is only pertaining to demand of Rs. 50,000/- just a few days
before the incident. The other allegations of harassment during the
subsistence of marriage between the appellant no.1 and deceased for a
long period of 11 years are vague and not specific.

10. Apart from this, a perusal of the evidence of prosecution
witnesses shows that PW-1 (father of the deceased), PW-2 (brother of the
deceased) and PW-3 (nephew of the deceased) have all made very
general and vague allegations about the harassment suffered by the
deceased at the hands of the appellants during 11 years of marriage
between appellant no.1 and the deceased. Even the trial Court has not
believed the allegations of harassment made against the appellants on
the basis that the deceased had failed to give birth to a male child and
that she had some defect in her vision in one her eye. Therefore, only the
allegation pertaining to illegal demand of Rs. 50,000/- by the appellants
from the deceased remains to be examined. The evidence of (PW-1)
Punjaji shows that his son (PW-2) Janardan informed him that the
appellant no. 1 was demanding Rs. 50,000/- for construction of slab in
respect of the construction of new house undertaken by him. Thus, his

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evidence is not direct and it is hearsay. In cross examination this witness
has conceded that he had never lodged report against the appellants in
respect of alleged domestic quarrels between the deceased and the
appellants. In fact, he has admitted that till the last moment of life of the
deceased, both the families were visiting each other.

11. (PW-2) Janardan (brother of the deceased) has claimed in his
evidence that when he visited the deceased 4 to 5 days prior to the
incident, she had informed him that appellant no.1 was asking her to bring
Rs. 50,000/- for the aforesaid purpose. He claimed that appellant no.1
had slapped the deceased in his presence and threatened that if the
amount of Rs. 50,000/- was not paid, the in-laws of the deceased would
take her life. In cross examination, this witness has admitted that he could
not tell the exact month or year of ill-treatment suffered by the deceased
or when did the deceased inform him about it. He also conceded that the
construction work of new house undertaken by appellant no.1 was indeed
going on. In the cross examination, the said witness made a further claim
that appellant no.1 had assaulted him for not arranging the aforesaid
amount of Rs. 50,000/-. But, he has further conceded that he has not
informed his other relatives about the assault by appellant no.1. It has
also come in evidence that all the three daughters were residing with
appellant no.1.

12. (PW-3) Sopan (nephew of deceased and son of PW-2) is also
not direct witness for the alleged demand of Rs. 50,000/- made by
appellant no.1. But, he claims that on the date of incident, since he was
living in the same village where the deceased and the appellants were

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residing, while going to his school, he had seen at about 10.00 am that
the appellants were assaulting the deceased by fist blows. He claimed to
have gone to his school and that upon returning he was informed that the
deceased had hanged herself in a field. But, in cross examination this
witness admitted that his claim of having seen the appellants assaulting the
deceased in the morning on the date of incident has not been recorded in
the statement recorded by the Police, thereby showing that this aspect
was a clear improvement in his evidence.

13. PW-4 (Investigating Officer) has stated in his evidence that he
had recorded the statement of one Vatsala, who was the cousin sister of
deceased. This Vatsala had stated that on the date of incident at about
11.00 a.m. she had met the deceased and when Vatsala asked the
deceased whether there was any message for her parents as Vatsala was
to visit the village where the parents of the deceased were staying, the
deceased had stated that she should inform her parents that she was
happy. This Vatsala was never brought before the Court. Apart from this,
the Investigating Officer also recorded that there was construction of new
house being undertaken by the appellant no.1 and that two persons
working on the site had stated that appellant no.1 and his wife had come
to the construction site on the date of incident for supply of water. But,
these two persons were also not examined by the prosecution. Therefore,
it is evident that there was indeed construction of a new house undertaken
by appellant no.1 and that the deceased had also visited the said site even
on the date of incident and that nothing untoward was noticed by anyone.

14. In the statement under Section 313 of the Code of Criminal

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Procedure, 1973, the appellant no.1 has stated that the allegations of the
prosecution were unfounded and that there was even a property
purchased in the name of deceased, showing that there was no question of
harassment meted out by the appellants to the deceased. An incident of
deceased losing her temper on the eldest daughter is stated to be an
incident that occurred on the date of incident, due to which, according to
the appellant no.1, the deceased was agitated.

15. The aforesaid evidence brought on record by the prosecution
shows that for the entire period of 11 years of marriage between appellant
no.1 and the deceased, there was no material on record to show that the
deceased was made to face harassment in the context of any demand
made by the appellants. The trial Court has placed heavy reliance on the
alleged demand of Rs. 50,000/- just about four days prior to the incident
from the deceased, wherein the appellant no.1 allegedly had asked the
deceased to get the said amount from her parents for meeting expenses
towards putting a slab on the construction of new house undertaken by
appellant no.1. It is only (PW-2) Janardan (brother of deceased) who
claimed to be a direct witness of the said demand. The evidence of other
witnesses is clearly hearsay. But, even the evidence of (PW-2) Janardan
about the alleged demand of Rs. 50,000/- from the deceased and the
manner in which appellant no.1 had allegedly slapped the deceased in his
presence, appears to be an afterthought because, the same witness has
further stated that he was also assaulted by appellant no.1 in the presence
of deceased when such demand was made. He admits that he did not
inform such an alleged assault by appellant no.1 to any of his relatives,
while PW-1 (father of deceased) claims that PW-2 i.e his son did inform

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him about the alleged demand of Rs. 50,000/- by appellant no.1. There is
no mention of the claim made by PW-1 that the deceased and his son
were assaulted by appellant no.1 while making such a demand. It is
unnatural that PW-2 did not inform such a serious incident involving
physical assault upon himself and his sister to his father. This coupled with
the fact that the report in the present case in a typed written form was
submitted to the Police beyond 24 hours creates a serious doubt about
the prosecution story and it appears that the allegations were made by the
prosecution witnesses only as an afterthought. It is significant to note that
PW-1 has admitted in the cross examination that the typed written report
was brought by 4 to 5 persons of his village upon which they obtained his
thumb impression and then it was lodged in the police Station. This clearly
shows that the initial report was itself not on the instructions of PW-1
(complainant) and that therefore, a serious doubt is created about the very
initiation of investigation and the prosecution lodged against the appellants.

16. The trial Court has held against the appellants only on the
basis of the aforesaid alleged demand of Rs. 50,000/- for meeting
expenses towards putting a slab on the construction of the new house
undertaken by appellant no.1. Even if, such a demand is said to have
been made by appellant no.1, there is nothing to show that the other
appellants had anything to do with the same. An examination of the
purpose for which the alleged demand was made shows that it could not
be termed as an unnatural demand. It does happen that when projects
like construction of new house etc. are undertaken by a family, due to
financial crisis, persons in situations like the appellants do seek certain
amounts from their relatives and friends. Such a demand per se would

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not qualify to be an unlawful demand as defined under explanation-(b) to
Section 498A of the IPC, particularly when in the present case there is lack
of evidence to show any harassment of the deceased at the hands of the
appellants in connection with such a demand. It is also apparent from the
evidence on record that such a demand, even if accepted to be true, was
only a solitary demand made by appellant no.1. In this connection, learned
Counsel appearing for the appellants is justified in relying upon a recent
judgment of this Court in the case of Santosh s/o Jairam Phusande vs
State of Maharashtra (Criminal Appeal No.224 of 2004) where, in similar
circumstances, this Court has held as follows :-

“19. Further, in the first information report and even
from the evidence, demand for Rs. 10,000/- was a
solitary demand and even according to the witnesses,
it was for household purposes ” ?kjxqrh dkj.kkdfjrk”. In my
view, if the husband is pleading with his in-laws for
extending some financial help, it will be rather difficult
to term it as an unlawful demand, as mentioned in the
definition of ‘cruelty’.”

17. Applying the said position of law to the present case, it
becomes evident that even appellant no.1 cannot be held liable under
Section 498A of the IPC in the present case.

18. In respect of the charge under Section 306 of IPC, as
observed above, there is no evidence at all to show that the deceased was
made to face harassment by the appellants during her married life of 11
years with the appellant no.1. The allegations made by the prosecution
witnesses are absolutely vague and there is no specific incident of

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harassment pointed out in the said evidence and admittedly, there is not a
single complaint made in respect of such alleged harassment during the
entire period of 11 years of married life. In fact, PW-1 (father of deceased)
has admitted in cross examination that it was true that till the last moment
of life of the deceased both the families were visiting each other. This
shows that there could not have been such normal state of affairs of
relationship between the families, if there had been incidents of repeated
harassment and domestic quarrels involving appellants, as claimed by the
prosecution. Therefore, there is no material on record to show that the
appellants had driven the deceased to hang herself on the date of the
incident. The trial Court has failed to appreciate the evidence and material
on record in the correct perspective while rendering findings against the
appellants and convicting and sentencing them in the aforesaid manner.

19. In the light of the above, the instant appeal is allowed. The
impugned judgment and order passed by the trial Court is quashed and
set aside. The appellants are acquitted of the charges levelled against
them. Consequently, the bail bonds of the appellants shall stand
cancelled.

JUDGE
Deshmukh

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