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Criminal Appeal No. 133 Of 2010-vs-Tahsil Umrer, District Nagpur on 24 August, 2010

Bombay High Court Criminal Appeal No. 133 Of 2010-vs-Tahsil Umrer, District Nagpur on 24 August, 2010
Bench: A.P. Bhangale

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

Criminal Appeal No. 133 of 2010

Appellant : Naresh Ramkrushnaji Chikankar, aged about 35 years, occ: Labour, resident of Chargaon,

Tahsil Umrer, District Nagpur

versus

Respondent : State of Maharashtra, through Police Station Officer, Police Station, Bela,

District Nagpur

Mr J.M. Gandhi, Advocate for appellant

Ms A.R. Taywade, APP for State

Coram : A. P. Bhangale, J

Dated : 24th August 2010

Oral Judgment.

1. By this appeal, appellant is challenging judgment and order dated 26.2.2010 passed by the 5th Adhoc Additional Sessions Judge, Nagpur in Sessions Trial No. 263 of 2009 whereby appellant has been convicted for the offences 2

punishable under Sections 498A and 306 of the Indian Penal Code and on each count he is sentenced to suffer rigorous imprisonment for three years and pay a fine of Rs. 200/-, in default, to suffer simple imprisonment for one month.

2. Appellant was accused no.1 while accused no. 2 was his mother Parvatabai and accused no. 3 Suresh was his brother who have been acquitted.

3. Appellant no.1 was married to deceased Mangala on 15.4.2001. As per the report dated 1.8.2008 lodged by Ranjit Mukindrao Belekar, his sister Mangala was treated well for three years at the matrimonial home, but thereafter accused started asking Mangala to bring money from her mother and on that count, they used to beat her and torture her. Mangala had disclosed about the ill-treatment meted out to her when she had come to parental home in Diwali 2007. Efforts made by Manoj, younger brother of first informant and others to pursuade the accused, failed. On 31.7.2008 he came to know telephonically that his sister had died of drowning in a well. It was alleged in the report that Mangala had committed suicide owing to the ill-treatment at the hands of accused persons. After investigation, police filed charge-sheet against the accused for the offences punishable under Sections 3

498A and 306 read with Section 34 of the Indian Penal Code.

4. Learned trial Court framed charge on 16.9.2009 to which accused pleaded not guilty and claimed trial. The prosecution had examined five witnesses in support of its case. No defence evidence was led. After examination of evidence led and hearing the parties, learned trial Court acquitted accused nos. 2 and 3 and convicted accused no.1/ appellant and sentenced him, as aforesaid.

5. Learned counsel for the appellant contends that there was absolutely no evidence of ill-treatment meted out to deceased Mangala at the hands of appellant, as alleged. He submits that there is no documentary evidence, such as, letter addressed to her parents or brother by Mangala that she was subjected to ill-treatment for her failure to satisfy the demand of dowry by appellant or any other person of his family. Report was lodged only after the dead body of deceased Mangala was found floating and that there was not a single piece of evidence to infer that the appellant abeted commission of suicide by Mangala. He further contends that there is no medical evidence to corroborate the accusation made against the appellant. Learned counsel has taken me through the evidence of witnesses examined in the trial. 4

6. P.W. 1 Ranjeet deposed for about 1-2 years, Mangala was treated well, but thereafter she was complaining harassment at the hands of appellant and others for demand of dowry. During Diwali of 2007 Mangala had demanded Rs. 3000/- from him and he had given that sum to her. He had also deposed about his intervention and efforts of pursuation by other relatives. In cross-examination, this witness admits that accused did not demand any amount from him at any time. He further admitted that deceased Mangala used to come to his place once in a year on Diwali festival and that she used to get back voluntarily. This witness has made it clear that delivery of Mangala had taken place at his house when she had given birth to a son and thereafter for second time when she conceived, delivery had taken place in the house of accused. He admits that he used to receive phone calls from appellant; appellant complained to him that Mangala did not do household duties and that he had given understanding to Mangala. He had tried to convince Mangala for 5-6 times when he received complaint that she used to raise quarrels with her brother-in- law and mother-in-law. Prior to 15 days of the incident when he had gone to the place of appellant, he observed family atmosphere there was compatible and congenial.

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7. P.W. 2 Manoj, brother of first-informant deposed that Mangala used to complain that appellant was beating her under the influence of liquor and that he was demanding money which was paid by his family on one or two occasions. He admits that he had also received complaints from appellant about negligent attitude of Mangala towards household duties and that he had also asked Mangala to improve. Parvatabai, mother of Mangala deposed that she did not know as to why Mangala died; her sons Ranjit and Manoj compromised the inter-se disputes between appellant, his family members and Mangala. She admits that Rs. 3000/- were paid to Mangala, because there was need and that amount was paid prior to one and one & half years of the incident of death of Mangala. She further admits that Mangala’s behaviour was whimsical and that accused no.2 used to scold Mangala for her failure to do household duties. P.W. 4 Baby resides opposite the house of accused and she claimed that under the influence of liquor, appellant used to beat Mangala and all the accused use to raise quarrels with Mangala. In cross-examination, this witness states that she is away from house whole day and that there were quarrels between the accused and Mangala on household matters. She further admits that she never 6

intervened and that she was not on visiting terms with accused.

8. In the present case, it is clear from the evidence of prosecution witnesses that there was demand and some amount of money was given to accused through Mangala. However, P.W.3 Nirmalabai, mother of deceased Mangala admits that money was given because there was need and that too, it was given before 1/1 and half years prior to the death of Mangala. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for “dowry” as the said word is normally understood. It has been held by the Apex Court in Appasaheb & anr v. State of Maharashtra reported in AIR 2007 SC 763, pressed into service by learned counsel for the appellant, that giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential.

9. It is borne out on record through the cross- examination of prosecution witnesses that there were quarrels between accused and Mangala for her failure to do household 7

duties. P.W. 4 Baby also deposes that the quarrels were on household matters. P.W.1 and 2 Ranjeet and Manoj have admitted that in response to the complaint from the appellant, they intervened and persuaded Mangala not to pick up quarrels and do the household duties promptly. P.W. 3 Nirmalabai has deposed that Mangala was impulsive by nature and she did not know as to why she died.

10. Apart from the above, prosecution has not placed any documentary evidence in the form of letters etc. showing complaint of ill-treatment by Mangala on account of dowry demand so as to impute mens rea or criminal intention upon the appellant to constitute provocation or incitement compelling Mangala to end her life. There is no medical evidence to prove that there was physical assault on Mangala by the appellant. Had there been a persistent demand or continuous ill-treatment for that purpose, Mangala would have made complaints or would have visited her parental house for that purpose. However, there is evidence of P.W. 1 Ranjeet and P.W. 2 Manoj that Mangala used to come to parental home only on the occasion of Diwali and that she used to get back to her matrimonial voluntarily and without any demur. It is settled position of law that there must be legal evidence to establish 8

that victim was subjected to cruelty and that she died suicidal death in consequence as she was subjected to ill- treatment and cruelty. In the report lodged by P.W. 1 Ranjeet there was no allegation that appellant used to beat Mangala under the influence of liquor. Therefore, allegation made in the evidence by prosecution witnesses that Mangala was subjected to beating by appellant in an inebriated condition appears to be exaggerated and made-up one.

11. The net result of the above discussion, prosecution has failed to prove charge either under Section 498A or Section 306 of the Indian Penal Code beyond reasonable doubt against the appellant. Appellant ought to have been given benefit of doubt in the facts and circumstances of the case. Judgment and order of conviction and sentence impugned herein cannot be sustained and appellant deserves to be acquitted.

12. In the result, impugned judgment and order of conviction and sentence is set aside and the appellant is acquitted of the offences with which he was charged. He be released forthwith if not required in any other pending criminal case.

A.P. BHANGALE, J

hsj

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