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C vs H on 25 February, 2010

Bombay High Court C vs H on 25 February, 2010Bench: R. S. Dalvi

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PGK

IN THE HIGH COURT OF JUDICATURE AT BOMBAY rt

CRIMINAL APPELLATE JURISDICTIION ou

Criminal Appeal No.1100 of 2009

The State of Maharashtra

(Through P.S.O. Police Station

C

Phaltan) … … Applicant (Orig. Complainant)

V/s.

1.Sharad Rambhau Khande

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2.Rambhau Yashwant Khande … Respondents ig (Orig. Accused Nos.1 & 2) Mrs.A.A. Mane, APP for State.

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Mr.D.S. Mhaispurkar for Res.Nos.1 & 2. —–

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CORAM : SMT.ROSHAN DALVI, J

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Date of reserving the judgment : 7th December, 2009 Date of pronouncing the judgment : 25th February, 2010 om

JUDGMENT :

1.This Appeal is filed by the State of Maharashtra challenging the judgment of acquittal passed by the B

learned Assistant Sessions Judge, Satara on 18.8.2008 in Sessions Case No.25 of 2008.

2.The accused are the son and father. They have been charged for having committed offence punishable under ::: Downloaded on – 09/06/2013 15:39:00 ::: 2

Sections 498A and 306 read with Section 34 of the Indian Penal Code (IPC). The wife of accused No.1 rt

(Respondent No.1 herein) was found to have been drowned in a well in the village where they lived. Upon the ou

complaint filed by her father, the Respondents came to be charged for having committed offence under the C

aforesaid sections. It has been the case of the prosecution that the deceased one Aruna, who was the wife of Respondent No.1, and the daughter-in-law of h

Respondent No.2 herein, got married on 18.7.2006. She died upon drowning on 7.9.2007 within about 14 months ig

of her marriage. Her death was unnatural and was caused by the cruelty and harassment to her by the H

Respondents. The evidence that has been led is that during about 14 months of her married life, she had y

visited her paternal home thrice i.e. on Diwali day, Sankrant day and Rakhi Pornima day. On each of these ba

days, she had informed her parents that her husband was demanding dowry and ill-treated and harassed her by om

abusing her after consuming liquor. She had further disclosed to her mother when she visited on Sankrant day that her father-in-law was seeing her with an evil eye when she was serving food to him and used to abuse B

her. She again disclosed to her parents on Rakhi Pornima day when she went to meet them that one day when she was in the field her father-in-law had caught her hand; she shouted upon which he went away. ::: Downloaded on – 09/06/2013 15:39:00 ::: 3

3.Soon thereafter on 9.7.2007, her maternal uncle brought rt

news that there was a quarrel between the deceased and the Respondents and they were called to her house. They ou

went there in a tractor. There was a commotion and when they inquired, they were told that she died due to fall C

in a well.

4.Her postmortem was carried out on the next day. Last h

rites were thereafter performed. Then a complaint came to be lodged by her father which was marked Exhibit-27 ig

in evidence. Upon the complaint, the inquest and spot panchanams were made and the Respondents were arrested H

on 8.9.2007. Upon the charge-sheet having been filed, the learned Judge recorded evidence of 7 witnesses. He y

raised six points for consideration. ba

5.The first point of consideration was whether the death of the deceased-Aruna was suicidal, which the learned om

Judge has answered in the affirmative. The second point of consideration was relating to the abetment of suicide on the dowry demands. The learned Judge has answered that point as not having been proved. The B

third point of determination was whether Respondent No. 2, her father-in-law, abused her and kept an evil eye on her. The learned Judge has answered that point also as not having been proved. The fourth point of ::: Downloaded on – 09/06/2013 15:39:00 ::: 4

consideration was whether the demand of dowry, if any, made was such as to drive her to commit suicide which rt

the learned Judge has answered as not proved. The fifth point of determination was whether the abuses of ou

Respondent No.2 and keeping an evil eye on her were also such as to drive her to commit suicide, which the C

learned Judge has answered as not having been proved. The learned Judge has accordingly acquitted the Respondents.

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6.It will have to be seen whether it is a possible view ig

that the learned Judge could have taken upon the evidence led by the prosecution. H

7.It may be mentioned that the point of determination y

relating to the suicidal death, which has been answered in the affirmative, has not been challenged by the ba

Respondents herein, though Mr.Mhaispurkar on behalf of Respondents Nos.1 and 2, did argue that the evidence om

shows that the death by drowning was an accident. That argument was also advanced before the learned Judge. The learned Judge considered the postmortem report showing whitish reddish froth coming from nostrils of B

the deceased and lungs of the deceased being swollen and shown to be balloon shaped. The death was, therefore, asphyxia due to drowning. The evidence showed that there were many wells also in the village. ::: Downloaded on – 09/06/2013 15:39:00 ::: 5

The deceased was found drowned in the well of one Jaysing Jadhav. There was another well of Chimanrao rt

Kadam also. However, nothing turns on that fact. The evidence further shows that there was one shed having ou

moong pods near the well where her body was found. It was argued by the defence that this showed that the C

deceased had done some work in the shed and then had gone to drink water when she might have fallen in the well. The learned Judge has rightly considered that h

since there was no eye witness account of the deceased having done any work on the moong pods, it was an ig

irrelevant circumstance. The lack of injuries on the body of the deceased was also brought to the notice of H

the learned Judge. He has rightly considered that a person committing suicide as well as person y

accidentally falling would have the same amount of fear at the time of the fall and may go into shock and that ba

any aspect of the body of the deceased reported in the postmortem report showing fear would not be a pointer om

to either accidental or suicidal death and these circumstances would not conclusively prove that the death was accidental. The learned Judge found that there was no obstruction in the well and hence in B

either event there may have been no injury on her body. The learned Judge also considered the defence contention that the pair of slippers of the deceased was found near the well. He rightly concluded that ::: Downloaded on – 09/06/2013 15:39:00 ::: 6

that was also an immaterial circumstance which would not show suicidal or accidental death. rt

8.The learned Judge further rightly considered that the ou

postmortem report showed that she had her last meal half an hour before she died and hence she would have C

taken food as well as water soon before her death and consequently, there was no reason for her to climb down in the well for drinking water. The reasoning of the h

learned Judge on this count is also a possible one and cannot be stated ig to be perverse and needs no interference in an Appeal from the order of acquittal. H

9.Consequently, upon the suicide committed by the deceased, it would have to be seen whether the y

Respondents could have been convicted for the offences punishable under Sections 498A and 306 of the IPC. The ba

prosecution would have to show that the Respondents subjected the deceased to such cruelty, as would drive om

her to commit suicide, to have been convicted under Section 498A. Further the prosecution would have to show that the Respondents abetted the commission of the suicide by the deceased.

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10.The evidence of the parents of the deceased relating to the demand of money made by Respondent No.1, the husband of the deceased, has no particulars of the ::: Downloaded on – 09/06/2013 15:39:00 ::: 7

demand. The evidence shows that information relating to this aspect was given by the deceased to her parents on rt

each of the 3 occasions she met them. No action was taken. No resolution of any dispute was also brought ou

about. The demand, per se, cannot be stated to be such as to drive her to commit suicide. Consequently, the C

second and the fourth points of determination with regard to the demand for money have been correctly held not to have been proved. That part of the judgment h

also needs no interference.

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11.The further evidence relates only to Respondent No.2, the father-in-law of the deceased. The evidence is H

that he used to abuse her under influence of liquor and kept an evil eye on her. That evidence has also been y

held to be not proved. That evidence deserves a second look. The learned Judge has considered the evidence of ba

the mother, father and the maternal uncle of the deceased who were examined as P.W. Nos.3, 5 and 6, om

respectively in that behalf. On the first visit by the deceased at Diwali time, she had informed her mother that Respondent No.2 was harassing her by consuming liquor and abusing her that she was spending more B

money. At the time of Sankrant festival, she informed her mother that Respondent No.2 was seeing her with an evil eye while she was serving food and used to abuse and harass her. Similarly at the time of Rakhi Pornima, ::: Downloaded on – 09/06/2013 15:39:00 ::: 8

she had disclosed to her mother that Respondent No.2, her father-in-law, caught her hand in the field and rt

when she shouted, he had run away. The father of the deceased, PW5, deposed that the deceased had informed ou

him that Respondent No.2 abused her under the influence of liquor. He admitted that before the Rakhi day, he C

did not know anything about the behaviour of Respondent No.2. PW3, her mother, deposed that when at Sankrant time the deceased had complained about Respondent No.2, h

she had disclosed that fact to her husband and her husband had replied that she should leave that incident ig

for that time and if such a thing happened again she must tell him.

H

12.The learned Judge considered that there was a material y

inconsistency in the evidence of the mother and the father, P.W.Nos.3 and 5, respectively. This ba

observation stands to reason. The deceased was married on 18.7.2006. The first disclosure about the conduct of om

Respondent No.2 was made at Diwali time. This would be in October / November 2006. The second disclosure is stated to have been made at Sankrant time. That would be in January 2007. The third disclosure is stated to B

have been made on Rakhi Pornima day. That would be in or about August 2007. Hence it can be seen that though the mother of the deceased deposed that she had disclosed to her husband in January 2007 about the ::: Downloaded on – 09/06/2013 15:39:00 ::: 9

conduct of her daughter-in-law, the father of the deceased claimed that he did not know about his conduct rt

until about August 2007. This is rather a material inconsistency.

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13.The evidence of cruelty and harassment against C

Respondent No.2 is only made out on the oral statement, essentially of the mother and the father of the deceased. These are the statements of what the h

deceased had told them on 2 or 3 specified days. Since the very first visit of Aruna after her marriage can be ig

seen to be at Diwali time, there is no evidence about the Rakhi Pornima festival, which may have taken place H

in or about July / August 2006. Consequently, the second visit is at Sankrant time. If what the mother y

deposed was disclosed to the father of the deceased, he would have known that fact from January 2007. Hence ba

his evidence that before the Rakhi day he did not know about the conduct of Respondent No.2, shows that om

evidence of the mother about the disclosure cannot be accepted as correct. If the evidence of the mother has to be accepted, then the evidence of the father about why he did not do anything despite knowing from January B

2007 would not stand to reason.

14.The maternal uncle of the deceased, PW6, deposed that at the time of Panchami, the deceased told him that ::: Downloaded on – 09/06/2013 15:39:00 ::: 10

Respondent No.2 used to consume liquor and his behaviour was not proper. The evidence of the maternal rt

uncle, PW6, is shown to be an improvement and consequently, cannot be relied upon. ou

15.Upon the aforesaid evidence, it cannot been said that C

the conduct of Respondent No.2 was such as would tantamount to such cruelty as would drive the deceased to commit suicide because of such conduct. Hence even h

if the deceased committed suicide, it cannot be stated to have been abetted by Respondent No.2. ig

16.Further the learned Judge has considered delay in H

lodging the complaint to be fatal. The delay is of but one day. Upon the father and the maternal uncle of the y

deceased had come to the house of the Respondents on the date of her death. An AD Report was lodged. The ba

Police were present at the site. The Police inquired with them. They had stated that they had no complaint om

against the Respondents when the Police were recording the statement. Thereafter the father of the deceased had gone where the postmortem was conducted. The Police Station is situate at that place. Even then no B

complaint was lodged. The learned Judge has considered that if the conduct of Respondent No.2 was brought to the notice of the mother as well as the father of the deceased before her death, they would have immediately ::: Downloaded on – 09/06/2013 15:39:00 ::: 11

reported to the Police about that fact; they would not have stated that they would have no complaint against rt

him.

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17.This observation needs to be considered in the light of human relationships and the actions based upon such C

relationships. The parents of the deceased would have been traumatised. Shed died an unnatural and a rather sad death. It must have come as a jolt to them. She h

was young and recently married. Even if the parents knew what had transpired between her and her father-in- ig

law, it was only a brief complaint. They would be more concerned about the fate of their daughter than about H

wrecking vengeance upon her in-laws or bringing them to book. They would not even know the legal procedures. y

At least they would not understand the promptness with which to deal with a criminal situation. The death by ba

drowning or burning or under such other circumstances may, at first, not manifest itself as a crime, which om

can be at once reported to the Police. It is only when the entire situation sinks in that the possible act of a party can be discerned and any charge of a criminal act can be made. Delay of a day or two under such B

circumstances would not be the result of a consorted action to falsely implicate any in-laws. The Court must view such a situation with empathy as also sentipathy. Hence mere delay can never merit the ::: Downloaded on – 09/06/2013 15:39:00 ::: 12

rejection of a case of abetment of suicide or cruelty when death or a near relative is the result that has rt

preceded the reason. It is for the Courts to appreciate the intrinsic evidence with the sensitivity and ou

humanistic approach to evaluate and appreciate nothing other than the merits of the case brought out by the C

prosecution, unfettered by technical and procedural requirements which may hold good in other criminal actions.

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18.The evidence shows that after the funeral was over, on ig

the next day the mother, father and the maternal uncle of the deceased had a discussion in which they decided H

to lodge the complaint as the maternal uncle of the deceased insisted upon the father of the deceased to y

lodge the complaint. The accused had been arrested upon the complaint on the very next day. The parents of the ba

deceased are seen not to have acted upon the grievance of their daughter during her life-time. They may not om

do so after her death. The maternal uncle may prevail over them to take recourse to law. Having seen the result, they may consider it appropriate not to observe only silence. Hence a complaint can be lodged after B

same thinking process. That itself cannot invalidate it under such circumstances. The learned Judge has concluded that this was an inordinate delay and such as to make out a false case against the Respondents upon ::: Downloaded on – 09/06/2013 15:39:00 ::: 13

deliberation. Such a conclusion is bereft of any sensitive analysis of human conduct. rt

19.It has been held in the case of State of U.P. vs. ou

Satish, (2005) 3 SCC 114, which was a case of rape and murder of a minor aged less than 6 years being held as C

a rarest of rare case that delayed examination of certain witnesses would not result in granting any advantage to the defence unless the Investigating h

Officer is categorically asked as to why there was delay in examination of the witnesses. ig It is held that it is not a rule of universal application that if there is such delay the prosecution version becomes suspect. H

It would depend upon several factors. If the explanation for the delay is plausible and acceptable, y

such delay would not be fatal. In this case, there is but one day s delay in lodging the FIR and recording ba

the statement of other witnesses. The chronology of what transpired on the date of the death of the om

deceased and the next day itself shows the plausible explanation for that much delay.

20.However, the learned Judge has concluded that since B

the cruelty as would drive the deceased to commit suicide under Section 498A of the IPC was not proved, the presumption under Section 113A of the Evidence Act that there was abetment of suicide could not be made ::: Downloaded on – 09/06/2013 15:39:00 ::: 14

since such cruelty, as would have driven her to commit suicide, was not proved. The evidence lands itself to rt

such a possible view.

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21.Consequently, the acquittal despite the suicidal death of the deceased cannot be interfered with. Hence the C

Appeal fails and is dismissed.

(SMT.ROSHAN DALVI, J.)

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