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Kacharu S/O Bhausaheb Sonawane-vs-2 Shri Ravindra S/O Murlidhar on 29 April, 2011

Bombay High Court Kacharu S/O Bhausaheb Sonawane-vs-2 Shri Ravindra S/O Murlidhar on 29 April, 2011
Bench: Shrihari P. Davare

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

AURANGABAD BENCH, AURANGABAD

CRIMINAL APPEAL NO. 58 OF 2001

Kacharu s/o Bhausaheb Sonawane,

age 31 years, occ. Agriculture,

r/o Akolner, Tq. And District

Ahmednagar …Appellant (original accused no.1)

VERSUS

1 The State of Maharashtra,

2 Shri Ravindra s/o Murlidhar

Deshmukh, age 34 years,

occ. Service, r/o Daund,

Taluka Daund, District Pune …Respondent (No.2 complainant)

…..

Shri S.B.Jadhav, advocate holding for

Shri B.T.Bodkhe, advocate for appellant (original accused no.1) Shri S.G.Nandedkar, A.P.P. for respondent/State

…..

CORAM : SHRIHARI P.DAVARE, J.

DATE OF RESERVING

THE JUDGMENT : 18.4.2011

DATE OF PRONOUNCING

THE JUDGMENT : 29.4.2011

2 cra58.01

J U D G M E N T : –

1 Challenge in the present appeal is to the conviction and sentence, rendered by the learned Additional Sessions Judge, Ahmednagar, in Sessions Case No. 202 of 1999, by way of judgment and order, dated 22.1.2001, whereby appellant herein (original accused no.1) was convicted for the offence punishable under Sections 498-A and 306 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.1,000/-, in default to suffer simple imprisonment for three months, but no separate sentence was awarded under Section 306 of the Indian Penal Code and set off was directed to be given to appellant (original accused no.1) herein, as he was in Jail from 18.8.1999 to 29.10.1999.

2 The factual matrix and shorn of details, which gave rise to the present appeal, are as follows :-

The appellant i.e. original accused no.1 Kacharu Bhausaheb Sonawane and deceased Surekha married with each other about four years back from the date of incident i.e. 17.8.1999 and the original accused no. 2 – Bhausaheb Dattatraya Sonawane 3 cra58.01

and original accused no.3 – Hausabai Bhausaheb Sonawane are the parents-in-law of deceased Surekha. The appellant and his parents i.e. original accused nos. 2 and 3 faced the trial for the offences punishable under Sections 498-A and 306 r/w Section 34 of the Indian Penal Code, but only appellant herein was convicted and sentenced, as afore stated; whereas original accused nos. 2 and 3 were acquitted from the charges levelled against them by the judgment and order, dated 22.1.2001.

3 It is alleged that deceased Surekha was educated upto th

10 standard and after marriage, she went to her matrimonial home and was residing with the accused persons at Akolner, Taluka and District Ahmednagar. She was treated well for initial period of one year, but thereafter whenever she used to come to her parental house, she used to complain that the accused persons used to make unlawful demand of Rs.50,000/- to be brought by her from her parents and they used to assault her due to non-fulfillment of the said demand and even some times she was starved on the said count. 4 Complainant – Ravindra Murlidhar Deshmukh, resident of Arangaon, Taluka and District Ahmednagar is the brother of deceased Surekha and he has also another unmarried sister, namely Seema. Deceased Surekha used to make grievance about 4 cra58.01

illtreatment and harassment to her at the hands of accused persons before her brother i.e. the complainant and he used to convince her. He brought her to parental house for delivery purpose and accordingly, deceased Surekha gave birth to a female child. However, on the insistence of her father-in-law, namely Bhausaheb, she was sent back to her matrimonial home very soon after delivery. It is also alleged that after lapse of about six months, complainant Ravindra went to the house of accused persons to meet deceased Surekha and at that time also Surekha complained before him that the accused persons used to demand amount of Rs. 50,000/- from her and used to illtreat her and used to assault her on account of said unlawful demand. Hence, the complainant again requested the accused persons not to illtreat Surekha, but the accused persons stated that they would not illtreat her if amount is paid to them, otherwise they would not allow her to reside in the house. 5 It is also the case of prosecution that on 17.8.1999, when the complainant Ravindra was at Daund, he received a telephonic message from PW3 Kashinath Deshmukh i.e. uncle of Surekha at about 11.30 a.m. conveying that Surekha informed him on telephone from Sonewadi that she was driven out of her house on account of demand of amount of Rs.50,000/-. Thereafter, the complainant came to his house at Arangaon at about 7.00 p.m., but he did not 5 cra58.01

find Surekha there. Hence, he contacted PW4 Sangita Deshmukh i.e. distant sister of Surekha, who informed that Surekha left her house at about 11.00 a.m. on the same day. Hence, the complainant PW2 Ravindra contacted the neighbours of the accused at village Akolner on telephone, who informed him that Surekha and her daughter were expired. Accordingly, the complainant Ravindra, his uncle Kashinath, his mother Sulochana, sister Seema, his father and cousin brother Jalindar Gopal, Tabaji Deshmukh, Laxman Tabaji Deshmukh, etc. went to Akolner and saw the dead bodies of deceased Surekha and her daughter in the ambulance. Thereafter, the said dead bodies were taken to the Civil Hospital, Ahmednagar for postmortem and postmortem was performed by PW1 Dr. Prabhas Patil, Medical Officer. It is alleged by the complainant that deceased Surekha was illtreated by the accused persons and she was driven out of her matrimonial home, and therefore, she committed suicide by throwing herself and her small female child on Railway track, and accordingly, the accused persons abetted commission of the said suicide.

6 It is also the case of prosecution that PW6 P.S.I. Uttam Eknath Tagade was attached to Nagar Rural police station on the relevant day i.e. 17.8.1999 and Police Station Officer Sonawane 6 cra58.01

registered A.D. No. 55 of 1999 in respect of complaint lodged by the complainant Ravindra Murlidhar Deshmukh and same was reduced into writing and the complaint is produced at Exh.19. Accordingly, PW6 P.S.I. Uttam Tagade registered the offence under Sections 498-A and 306 of the Indian Penal Code against the accused persons. He carried out the investigation into the matter. He recorded the statements of the witnesses during the course of investigation on 18.8.1999 and handed over the investigation to Deputy Superintendent of Police and again took the investigation into his hands on 30.8.1999. Accordingly, after completion of investigation, he filed the charge sheet against the accused persons on 22.10.1999. Thereafter, the said case was committed to the Court of Sessions by order dated 25.10.1999 by the learned Judicial Magistrate, First Class, Ahmednagar.

7 Accordingly, charge was framed against the accused persons on 5.12.2000 at Exh.3 for the offence punishable under Sections 306 and 498A r/w Section 34 of the Indian Penal Code. However, the accused persons pleaded not guilty to the said charges levelled against them and claimed to be tried.

8 To substantiate the charges levelled against the accused, the prosecution examined in as much as six witnesses, as mentioned 7 cra58.01

below.

PW1 Dr. Prabhas Patil, Medical Officer, who performed postmortem on deceased Surekha and her child

and produced the postmortem notes of child of

Surekha at Exh.13 and postmortem notes of

deceased Surekha at Exh. 14.

PW2 Ravindra Murlidhar Deshmukh, complainant i.e. brother deceased Surekha.

PW3 Kashinath Tabaji Deshmukh i.e. uncle of deceased Surekha.

PW4 Sangita Dhondiram Deshmuh, distant sister of deceased Surekha

PW5 Jalindar Gopal Deshmukh,

cousin brother of deceased Surekha

PW6 P.S.I. Uttam Eknath Tagade, Investigating Officer. 9 The accused persons neither examined themselves on oath nor examined any witness on their behalf. The defence of the accused persons is of total denial, contending that deceased Surekha was avoiding to work on Wit Bhatti and she used to go to her parents house frequently and she also performed abortion behind the back of the accused persons and she used to consume tablets and thereby she had pains in her legs, eyes and head, and 8 cra58.01

therefore, medical treatment was given to her in the hospital of Dr. Jadhav and Dr. Hoshing, but since she was consuming various tablets, she became hot tempered and was not doing any work. Besides, prior to 8 to 10 days of incident, she had gone to the house of her parents as her sister was ill and the accused have no connection with the alleged crime and they have been implicated in this crime falsely, and accordingly, they claimed to be innocent. 10 Considering the oral and documentary evidence, as well as the medical evidence produced by the prosecution on record and also considering the rival submissions advanced by the learned counsel for the parties, the learned Trial Judge convicted accused no.1 i.e. appellant herein for the offence punishable under Section 498-A and 306 of the Indian Penal Code and sentenced him as afore stated; whereas the accused nos. 2 and 3 were acquitted from the charges levelled against them.

11 Being aggrieved and dissatisfied by the said judgment and order, dated 22.1.2001, thereby convicting original accused no.1 i.e. appellant herein, the appellant has preferred the present appeal challenging the same and prayed for quashment thereof. 12 Before adverting to the submissions advanced by the 9 cra58.01

learned counsel for the parties, it is necessary to scrutinize the material evidence adduced and produced by the prosecution on record, and in the said context, coming to the deposition of PW2 complainant Ravindra Murlidhar Deshmukh i.e. brother of deceased Surekha, who stated that the marriage between Surekha and accused no.1 Kacharu was performed about 4 years back from the alleged incident at village Akolner, which is situated at a distance of 12 Kms. from village Arangaon and after the marriage she went to her matrimonial home at Akolner. Initially she was treated properly by the accused persons for about one year. He stated that some times Surekha used to come at her parental house and at that time she used to complain against the accused persons stating that they used to assault her and used to demand money i.e. Rs.50,000/- to be brought by her from her parents and even they were not giving food to her. He also stated that after the period of two years from marriage, she had come to the parental house for delivery purpose and delivered a female child, namely Tejaswi. However, after the lapse of ten days of delivery, her father-in-law came and insisted to send back Surekha to matrimonial home, and accordingly, she was sent to matrimonial home. He further stated that after six months of the said incident, he had gone to the house of accused persons to meet Surekha and even at that time also she disclosed before him that accused used to ask her to bring amount of Rs.50,000/- from her 10 cra58.01

parents and they used to assault and illtreat her due to non-fullfilment of the said demand. Hence, he stated that he convinced the accused persons not to illtreat her.

13 He further stated that thereafter after lapse of about six months, he received the telephonic message from his uncle informing that he received a phone call from Surekha stating that she was driven out of the house by the accused persons after assaulting her on account of demand of money and even she was threatened to be killed. After receipt of the said message, he went to Arangaon and thereafter made inquiry with his uncle. Thereupon, he stated that he received the phone call from Surekha from Sonewadi. Hence, he contacted Ranjana Deshmukh at village Sonewadi and made inquiry about Surekha and thereupon she stated that Surekha had left her house at 11.00 a.m. Hence, PW2 Ravindra contacted the neighbours of the accused on phone and thereupon they informed him that Surekha and female child were expired. 14 PW2 Ravindra further stated that he along with his family members and relatives went to Akolner at the house of the accused and found the dead bodies of Surekha and small female child Tejaswi in ambulance, which was taken to Civil Hospital at Ahmednagar and postmortem was performed on the said dead 11 cra58.01

bodies on the next day and thereafter funeral was carried on. He then went to police station at about 8.30 p.m. and lodged the report (Exh.19) at the police station.

15 During cross-examination, he stated that no quarrel took place in the marriage of Surekha on account of dowry and same was performed without any obstruction. He also stated that there are houses of labourers near the house of the accused and the house of the accused is situated adjoining to Sarola-Akolner road, which is a busy road and Akolner is a big village. He also stated that the Wit Bhatti belonging to the accused is adjoining to the road known as Akolner Sarola road and deceased Surekha and Kacharu were residing near the said Wit Bhatti. He further stated that there is railway line going to Arangaon and the distance between Akolner and Arangaon is 7 to 8 Kms. However, he denied that the distance between Sonewadi and Akolner is about 2 to 3 Kms., but stated that Sonewadi was nearer to Arangaon than Akolner. He also stated that there is railway line at Akolner, which goes towards Daund from Nagar and same is visible from the house of accused, but he could not state the specific distance between the said railway line and the house of the accused.

16 He further stated in cross-examination that he did not 12 cra58.01

know about earning of accused from the business of Wit Bhatti and was also unaware whether the said business was in good condition at the relevant time, nor he knew that the accused persons purchased machine for making cement bricks, nor he knew that accused and deceased Surekha used to work personally on Wit Bhatti. He also admitted that he did not make inquiry with the panch at Akolner in respect of illtreatment and harassment meted out to his sister Surekha, nor he made grievance with the police patil or Sarpanch of the village in that respect, nor he discussed with the neighbours in that respect. However, he categorically stated in his testimony that his sister Surekha used to come to Arangaon at the th

time of festivals. Surekha was educated upto 10 standard. He further stated that two notices were issued by accused Kacharu calling upon her to come at matrimonial home for cohabitation. He also stated that he was not aware whether there was abortion when Surekha was carrying pregnancy of three months. However, he stated that accused no.1 Kacharu informed him that Surekha performed abortion when she was carrying pregnancy of three months and PW2 Ravindra stated to accused no.1 that it was their personal matter and he would not interfere therein. However, he stated that he was not aware whether his sister Surekha was getting pains in her head or his legs after abortion. He also stated that operation of eyes of Surekha was performed by Dr. Jadhav and that 13 cra58.01

he was unaware whether the said medical expenses were borne by accused no.1. Hence, suggestion was given to him that Surekha was taking medical treatment continuously and she was taking tablets continuously and due to said consumption of tablets, her mental condition was affected, but same was denied by him. He further stated that he was unaware whether one day prior to the date of incident there was festival of Panchami and could not tell whether deceased Surekha had come to her parental house prior to ten days of the incident. It was also suggested to him that Surekha was not willing to reside with accused no.1 Kacharu, but same was denied by him. He categorically stated that his parents desired that Surekha should stay along with the accused. His another sister Seema was unmarried at the time of incident. He also stated that he was not aware whether his parents were asking Surekha not to come to their house and she should reside along with her husband. He also admitted that he did not lodge complaint with the police station when he came to know about the illtreatment and harassment to his sister. 17 Further in the cross-examination he was shown three letters and PW2 identified signatures of Surekha thereon and said letters were marked Exhs. 20, 21 and 22 respectively. He further stated that he did not lodge complaint with the police on the day of incident. However, he stated that he felt to lodge complaint, but he 14 cra58.01

did not get occasion to lodge the same. He also admitted that he did not give any explanation regarding delay in lodging the complaint. He further stated that he was not aware whether there was quarrel between Surekha and his father. He also could not state whether his parents got annoyed against Surekha, who were allegedly saying her not to stay at their house, as their another daughter was to be married. He further stated that he does not know whether Surekha was driven out from the house by his parents on the date of incident, nor he knew that whether his sister left the parental house due to their annoyance against her and she went towards railway line. 18 Besides, suggestion was given to PW2 Ravindra that accused persons did not demand amount of Rs.50,000/-, but same was denied by him. Suggestion was also given to him that accused persons did not assault and illtreat Surekha at any point of time, but same was denied by him. It was further suggested to him that he did not go to Akolner after marriage of his sister Surekha, but same was denied by him. The defence put up its case to PW2 Ravindra that the alleged incident occurred as the mental condition of Surekha was affected, but same was denied by him.

19 Coming to the deposition of PW3 Kashinath Tabaji Deshmukh, who stated that Surekha was daughter of his brother and 15 cra58.01

accused no.1 Kacharu was son-in-law of his brother and he was residing by the side of house of his brother, namely Murlidhar at Arangaon. He stated that whenever Surekha used to come to Arangaon she used to visit his house and he used to make inquiry with her about her physical condition and she used to inform him that she was having illtreatment at the hands of his in-laws and husband on account of demand of Rs.50,000/-. She also informed him that accused were demanding Rs.50,000/- for business of Wit Bhatti and they used to ask her to bring the said amount from her parents. He further stated that she was taken to her parental house for delivery and after four days of delivery, her father-in-law insisted to send her to matrimonial home, and accordingly, after 7-8 days of delivery, she was taken to matrimonial home.

20 As regards the incident, he stated that he received telephone from Surekha from village Sonewadi, who informed him that she was assaulted by accused persons at night time and she was driven out of the house on account of demand of money and her husband i.e. accused no.1 had informed her that she should bring the amount from her parents, otherwise she should leave their house and she should take divorce from him. Moreover, on making inquiry with Surekha, she informed that she was talking from the house of Sangita Deshmukh of Sonewadi. She also informed him that her 16 cra58.01

husband i.e. accused no.1 informed her that she should not live in the premises of Akolner, otherwise her legs would be cut off. Hence, PW3 Kashinath told her that she should not leave the house of Sangita and he would send his son to take her. Thereafter, he informed to PW2 Ravindra on telephone regarding the phone message of Surekha, as well as informed that Surekha was assaulted by her husband and in-laws and had driven out of house. Accordingly, after receipt of his message, PW2 Ravindra came from Daund at Arangaon and thereafter he contacted on phone at Sonewadi to Sangita, who informed that Surekha had already left the house at about 11.00 a.m. Thereafter, on inquiry by PW2 Ravindra with neighbours at Akolner, he came to know that Surekha and her daughter were expired. After getting such knowledge, PW3 Kashinath accompanied with PW2 Ravindra and others came to Akolner and saw the dead bodies of Surekha and her child in ambulance, which was taken to Nagar for postmortem purpose, and thereafter funeral was performed at Arangaon.

21 In cross-examination, he stated that marriage of Surekha was settled by him and there was no quarrel in the marriage. He also stated that whenever accused no.1 used to visit the house of the parents of Surekha, he used to come to his house. He admitted in the cross-examination that he did not inform the police patil or 17 cra58.01

Sarpanch about the illtreatment meted out to Surekha at the hands of accused and even he could not tell the date and day of going to the house of the accused persons after knowing about the illtreatment. He further stated that on one or two occasions, Surekha had come to the house of parents for attending festivals and she had come 8 to 10 days prior to the date of incident for attending festival of Panchami and to meet her sister Seema. He further stated that he came to know that deceased Surekha performed abortion when he was carrying pregnancy of three months. He also stated that two notices were received by Surekha from advocate calling upon her to join accused no.1 for cohabitation, and accordingly, she was sent to her matrimonial home. He further stated that economic condition of parents of Surekha was sound. He further stated that he was unaware whether father of deceased Surekha was telling her to stay at the house of accused persons and he got annoyed against Surekha on that count. He also could not state whether deceased Surekha was consuming tablets and taking regular medical treatment for future delivery.

22 He categorically stated that he knew reading and writing and he received one letter from deceased Surekha regarding illtreatment, but could not file it on record. He also stated that he might have stated before police while recording his statement that 18 cra58.01

after 4 days of delivery, father-in-law of Surekha had come to the house of her parents and insisted them to send Surekha to her matrimonial home, and even PW6 P.S.I. Uttam Tagade, investigating officer, supported the same in his testimony, stating that he recorded the statement of said Kashinath, who did not state before him about the same while recording his police statement.

23 He also stated that he is not having phone facility and cannot tell the phone number on which he contacted with PW2 Ravindra. He further stated that after receipt of phone call from Sonewadi, he did not go to Sonewadi personally. He also stated that the distance between Sonewadi and Arangaon is about 2 to 3 Kms. He also stated that he did not make inquiry after receipt of phone from Surekha from 11.00 a.m. to 7.00 p.m. Even after receipt of phone call from Sonewadi, he did not go to Akolner nor did he make inquiry with accused persons regarding the incident. He further stated that PW4 Sangita is his relative, but he had not gone to her house after receipt of phone call from Sangita. He further stated that he did not state before police that deceased Surekha was assaulted by her husband in the night time, but no such contradiction was put to the investigating officer PW1 P.S.I. Uttam Tagade and alleged contradiction has not been proved by the defence. Suggestion was given to him that amount of Rs.50,000/- was not demanded by the 19 cra58.01

accused persons for starting the business of Wit Bhatti, but same was denied by him.

24 That takes me to the deposition of PW4 Sangita Deshmukh, who is distant sister of Surekha, who was with deceased Surekha soon before the incident, who stated that she was having phone facility at her house and on the date of incident, Surekha had come to her house at about 10.00 a.m. and she offered her water and both had meal at her house. Thereafter, Surekha contacted with her uncle i.e. PW3 Kashinath at Arangaon on phone, and she over heard one word from her mouth that her husband demanded divorce from her, and she talked to him for some time, but she could not hear the entire talk, as she was busy in her household work. She further stated that Surekha was at her house till 11.00 a.m. and thereafter she left her house. She further stated that her daughter was also along with her at the relevant time.

25 In cross-examination, she stated that prior to incident Surekha did not come to her house, nor she was in close relation with her, but Surekha was for about one hour at her house and there was no talk between them. Suggestion was given to her that she was not having phone facility at her house, but same was denied by her. Suggestions were given to her that Surekha did not contact her 20 cra58.01

on phone and she did not come to her house at any point of time, but same were denied by her. It was also suggested to her that she did not hear the word from the mouth of Surekha about husband of Surekha demanding divorce from her, but same was denied by her. However, she stated that one day prior to the date of incident there was Panchami festival. Hence, suggestion was given to her that she did not hear telephone of deceased Surekha as she was fetching water from the water tap, but same was denied by her. 26 Coming to the testimony of PW5 Jalindar Gopal Deshmukh, who is the cousin brother of Surekha, who stated that Surekha was his cousin sister and his field was situated near Arangaon-Sonewadi road. He also stated that prior to one month of the incident, accused no.1 Kacharu came to his field on bicycle and informed him that he asked deceased Surekha to give divorce, failing which she should be asked to provide money, otherwise he would kill her, as well as he informed him that Surekha was not listening to him. During cross-examination, suggestion was given to him that prior to one month of the alleged incident Kacharu did not come at his house at any point of time, but same was denied by him. He also stated that he did not go to the police station when accused no.1 Kacharu informed him that he should ask deceased Surekha to give divorce, otherwise he would kill her, nor he informed the police patil 21 cra58.01

or Sarpanch regarding the said talk of accused no.1 Kacharu. Moreover, he further stated that he cannot tell whether he felt it necessary to go to the house of accused to convince them as elder members were in his family. Hence, suggestion was given to him that accused no.1 Kacharu did not come to him at any point of time and did not give threat to the effect that he should ask deceased Surekha to give divorce or otherwise he would kill her, but same was denied by him. It was also suggested to him that he was giving false evidence before the court as deceased Surekha was his cousin sister, but same was denied by him.

27 Turning to the evidence of PW1 Prabhas Manikrao Patil, who carried out the postmortem examination on the dead bodies of deceased Surekha and her daughter, who stated that on 18.8.1999, he was attached to Civil Hospital, Ahmednagar and dead body of Surekha Kacharu Sonawane and dead body of Tejaswi were brought by Police Constable Kute to the hospital for postmortem on 18.8.1999. He conducted the postmortem examination on both the said dead bodies. He also stated that probable cause of death of deceased Tejaswi was due to cardio respiratory failure due to head injury with cervical spine injury and her postmortem report is proved at Exh. 13. He further stated that probable cause of deceased Surekha was due to hemorrhagic shock due to polytroma and head 22 cra58.01

injury and he proved her postmortem report at Exh. 14. During cross-examination, he stated that the stomach was empty in both the deceased Surekha and Tejaswi. He also stated that if any person consumes medicine i.e. tablets for several years it causes side effects. He further stated that in case of consuming tablets in excess quantity, it causes side effects on brain.

28 On the background of the afore said oral, documentary and medical evidence, adduced and produced by the prosecution on record, learned counsel for the appellant canvassed that since PW4 Sangita Deshmukh has stated in her deposition that Surekha came to her house on the day of incident and she offered her water and thereafter they both took meal at her house and thereafter Surekha left her house at 11.00 a.m., it is apparent that as per her contention, Surekha consumed food between 10.00 a.m. and 11.00 a.m. on the relevant day, but pertinently PW1 Dr. Prabhas Patil has categorically stated in his deposition that stomach of both i.e. deceased Surekha and her daughter Tejaswi was empty and even the postmortem reports at Exhs. 13 and 14 of both, Tajaswi and deceased Surekha, disclose that small intestines and its contents were empty, and therefore, the said medical evidence falsifies the testimony of PW4 Sangita in that respect. Hence, it is submitted that deceased Surekha never visited the house of PW4 Sangita on the relevant day 23 cra58.01

and whatever stated by her that she overheard the word from the mouth of Surekha while talking on telephone to PW3 Kashinath that her husband demanded divorce from her, did not take place, and consequently, there was no aiding and abetting on the part of accused no.1 asking divorce from deceased Surekha as alleged. 29 Moreover, it is also canvassed that the distance between houses of PW3 Kashinath and PW4 Sangita was about 2 to 3 Kms. and it is alleged that there was talk between PW3 Kashinath and deceased Surekha and PW3 Kashinath told her that he would send his son to take her back, but nothing of the sort has come on record, and therefore, the inaction on the part of PW3 Kashinath, in that respect, speaks volumes for itself, and consequently, it is submitted that there was no such talk between PW3 Kashinath and deceased Surekha prior to the occurrence of the incident. It is further canvassed by the learned counsel for the appellant that although it has come on record that PW2 Ravindra was in police department, it is curious to note that he did not speak anything about divorce claimed by accused no.1, as stated by PW3 Kashinath and PW4 Sangita. It is further argued that there are no specific allegations regarding illtreatment and cruelty at the hands of the accused persons to deceased Surekha. Admittedly two notices were sent by accused no.1 Kacharu to deceased Surekha asking her to come for 24 cra58.01

cohabitation. It is further submitted that the father and mother of Surekha, although were available, were not examined, and, in fact, mother would have been the first person before whom Surekha would have disclosed in respect of alleged illtreatment, but the prosecution has not examined the said material witnesses and no explanation has been given for non-examination of the said witnesses. It is further canvassed that the prosecution has examined the family members and close relatives to substantiate the charges levelled against the accused/appellant, but has not examined any independent witness and the family members and close relatives are interested witnesses, and therefore, it is unsafe to base the conviction against the accused on the basis of such interested testimonies.

30 Moreover, learned counsel for the appellant relied upon the judicial pronouncement in the case of Satish Fakira Dhangar and ors.-vs-State of Maharashtra, reported at 2009 Cri. L.J. 3216. Para 22 of the said judgment reads as follows :-

” . ….

22 The Apex Court in Rajbabu and another v.

State of M.P. (2008 ALL MR (Cri) 2894 : (AIR 2008

SC 3212) (SC) observed :

25 cra58.01

“The mere fact that a woman committed

suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. ”

. . . ” 31 Learned counsel for the appellant also relied upon the judicial pronouncement in the case of Bhagwan Das v. Kartar Singh and Ors., reported at AIR 2007 SC 2045. In para nos. 15 and 16 thereof, it is observed as follows :-

” . .

15 In our opinion the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws. This, however, in our opinion, would not by itself and without something more attract Section 306 IPC read with Section 107 IPC.

26 cra58.01

16 However, in our opinion mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 IPC, if the wife commits suicide. Hence, we agree with the view taken by the High Court, We, however, make it clear that if the suicide was due to demand of dowry soon before her death then Section 304B IPC may be attracted, whether it is a case of homicide or suicide. Vide Kans Raj v. State of Punjab and Ors. 2000 (5)

SCC 207, Satvir Singh and Ors. v. State of Punjab

and Anr. 2001(8) SCC 633, Smt. Shanti and Anr. v.

State of Haryana AIR 1991 SC 1261.

. . “

32 Accordingly, learned counsel for the appellant submitted that there are variances in the testimonies of prosecution witnesses, as well as the said testimonies suffer from infirmities, contradictions and discrepancies, and therefore, the conviction based upon the appellant, upon such shaky evidence, shall not sustain, and hence, same deserves to be quashed and set aside by allowing the present appeal.

33 Learned Additional Public Prosecutor countered the said arguments and opposed the present appeal vehemently and submitted that death of Surekha occurred within the period of three 27 cra58.01

years from the date of marriage and committal of suicide by Surekha along with her small child Tejaswi within the said span of three years, raises presumption under Section 113-A of the Evidence Act against the appellant herein and leads to the position that the appellant is responsible for the said deaths. Therefore, the appellant herein is to explain the cause of said deaths, which the appellant has failed to explain, and therefore, said presumption involves and connects the appellant with the crime. It is also canvassed that PW4 Sangita is the witness, who was in the company of deceased Surekha and her child soon before the occurrence of death of Surekha and Tejaswi, who has categorically stated in her deposition that she overheard talk of Surekha with PW3 Kashinath on telephone, wherein Surekha stated that her husband was demanding divorce from her, which resulted into committal of suicide by her along with her minor child, involving the appellant herein in the said crime, and therefore, the testimony of PW4 Sangita carries much weightage, since it is the testimony of the witness who was in the company of deceased Surekha soon before the incident and connects the appellant with the crime.

34 It is further canvassed by learned Additional Public Prosecution that the prosecution witnesses i.e. PW2 Ravindra, brother of deceased Surekha, PW3 Kashinath, uncle of deceased 28 cra58.01

Surekha, PW4 Sangita, distant sister of Surekha and PW5 Jalindar, cousin brother of Surekha, have categorically stated in their respective depositions that the appellant subjected Surekha to illtreatment and harassment due to non-fulfillment of unlawful demand and even PW5 Jalindar has categorically stated that the appellant herein claimed divorce from her and the said testimonies prove and establish the cruelty, to which deceased Surekha was subjected to, which drove her to commit suicide along with her minor child. It is also canvassed that otherwise there was no reason for Surekha to commit suicide along with her minor child and the demand of divorce by appellant herein from deceased Surekha amounts to cruelty under section 498-A of the Indian Penal Code, which led to committal of suicide by Surekha along with her minor child. According to the learned Additional Public Prosecutor, the family members and relatives are the persons who are aware about the occurrences and events in family and rarely there could be independent witnesses, and therefore, it is submitted that there is no substance in the arguments canvassed by the learned counsel for the appellant in that respect. It is further submitted that the letters Exhs. 20, 21 and 22 written by Surekha are self-explanatory and which establish that deceased Surekha was always ready and willing to reside at her matrimonial home in spite of illtreatment. Accordingly, learned Additional Public Prosecutor submitted that the 29 cra58.01

Trial Court has assessed, scrutinized and analysed the evidence before it and convicted the appellant rightly and there is no glaring defect so as to reverse the said findings and learned Additional Public Prosecutor supported the impugned judgment and submitted that no interference therein is warranted in the present appeal, and consequently, urged that present appeal be dismissed. 35 I have perused oral, documentary and medical evidence, adduced and produced by the prosecution on record, as well as perused the impugned judgment and order, dated 22.1.2001 and heard the submissions advanced by the parties anxiously, as well as perused the judicial pronouncements cited by the learned counsel for the appellant carefully and at the out set, coming to the aspect of cruelty, to which deceased Surekha allegedly was subjected on account of demand of money of Rs.50,000/- by the accused persons, learned Trial Court has discussed the evidence of PW2 Ravindra i.e. brother of deceased Surekha and the testimony of PW3 Kashinath i.e. uncle of deceased Surekha in that respect and observed that it is short of proof of cruelty under Section 498-A of the Indian Penal Code. Admittedly, the prosecution has not examined the parents of deceased Surekha, who would have been the best witnesses to throw light on the aspect of alleged unlawful demand of Rs.50,000/- by the accused from deceased Surekha to be brought by her from 30 cra58.01

her parental house and the prosecution also has not given any plausible explanation regarding non-examination of the said material witnesses and due to such non-examination of such important witnesses, the prosecution case is hampered in respect of proof of the cruelty under Section 498-A of the Indian Penal Code on the count of unlawful demand of Rs.50,000/-, and non-fulfillment thereof. 36 The Trial Court also considered the letters Exhs. 20, 21 and 22 and observed that deceased Surekha was having desire to reside at her matrimonial home and deceased Surekha was requesting her husband to come to her parental house. The recitals of the letter further reveal that when her husband came to Arangaon, he did not go to the house of her parents and she also requested the accused persons to inform her about their condition. She also had desire to meet the accused i.e. her husband whenever he had come to Arangaon, but she was not allowed to meet by her father. Consi dering the totality of the evidence, the learned Trial Judge observed that it cannot positively be said that deceased Surekha was subjected to cruelty on account of unlawful demand of Rs.50,000/- and the said finding appears to be proper and reasoning adopted therefor cannot be faulted with.

37 However, it has come in the evidence that deceased 31 cra58.01

Surekha terminated her three months pregnancy behind the back of the accused persons, and therefore, accused no.1 Kacharu made grievance about the same to PW2 Ravindra i.e. brother of deceased Surekha and thereupon PW2 Ravindra stated to accused no.1 Kacharu that it was his personal matter, and therefore, PW2 Ravindra did not interfere therein. Moreover, accused no.1 Kacharu also issued notices to deceased Surekha mentioning therein that she had terminated her three months pregnancy and he called upon her for cohabitation at her matrimonial home. Moreover, the language in the letter Exhs. 20, 21 and 22 reveals that deceased Surekha had desire to reside at her matrimonial home. 38 On the backdrop of the afore said termination of three months pregnancy by deceased Surekha behind the back of the accused persons, it is material to note that PW4 Sangita is the witness, who saw deceased Surekha lastly before committal of suicide by her and she was the witness who met deceased Surekha soon before the incident of committal of suicide by Surekha and said PW4 Sangita stated in her deposition that when deceased Surekha had come to her residence at about 10.00 a.m., both of them took meal and thereafter Surekha contacted Arangaon with her uncle on telephone i.e. PW3 Kashinath and PW4 Sangita overheard one word from the mouth of deceased Surekha that her husband was 32 cra58.01

demanding divorce from her and thereafter she left her house along with her daughter. Hence, it is apparently clear that the termination of pregnancy by Surekha behind the back of the accused persons triggered the issue, which led to demand of divorce by accused no. 1 Kacharu from deceased Surekha.

39 The aspect of demand of divorce by accused no.1 Kacharu from deceased Surekha has been substantiated by PW5 Jalindar i.e. cousin brother of Surekha, in his deposition, wherein he stated that his field is situated near Arangaon-Sonewadi road and prior to one month of the incident, the accused Kacharu came to his field on bicycle and informed him that he should ask deceased Surekha to give divorce, failing which she should be asked to provide money, otherwise he would kill her. PW5 Jalindar stated in the cross- examination that he did not go to police station when Kacharu informed him about asking deceased Surekha to take divorce from him, nor he informed about the same to the police patil or Sarpanch regarding the said talk and said inaction on the part of PW5 Jalindar will not totally dislodge the statement made/information given by Kacharu to PW5 Jalindar about demanding divorce by Kacharu from deceased Surekha, failing which she should be asked to provide money, otherwise he would kill her.

33 cra58.01

40 Moreover, PW3 Kashinath, the uncle of deceased Surekha, also stated in his deposition that he received telephone call from Surekha from village Sonewadi informing him that she was assaulted by accused persons at the night time and she was driven out of the house asking her to bring money from her parents, otherwise she should leave her matrimonial home and she should take divorce from accused no.1 Kacharu and further stated that on inquiry, she further stated that she was talking from the house of PW4 Sangita and further she informed him that her husband stated to her that she should not live in the premises of Akolner, otherwise her legs will be cut. Accordingly, the testimonies of PW3 Kashinath, PW4 Sangita and PW5 Jalindar corroborate with each other in respect of demand of divorce by accused no.1 Kacharu from deceased Surekha and also PW3 Kashinath and PW4 Sangita corroborate each other regarding the aspect of telephone conversation between deceased Surekha and Kashinath on the relevant day, and more particularly, soon before the incident of committal of suicide by Surekha.

41 In the circumstances, there is no dispute that the alleged termination of pregnancy by deceased Surekha behind the back of accused persons was the cause for demanding divorce by accused no.1 Kacharu from deceased Surekha and she was subjected to 34 cra58.01

illtreatment and even she was threatened to leave the matrimonial home and even to cut her legs due to not responding to the said demand, which consequently resulted and led to the committal of suicide by her along with her small child Tejaswi and considering the over all circumstances in the present case, such demand of divorce by accused no.1 from deceased Surekha certainly amounts to mental cruelty under Section 498-A of the Indian Penal Code, and apparently, there is no flaw in the finding given by the learned Trial Judge in that respect.

42 Moreover, it is material to note that the death of Surekha occurred within the period of three years from the marriage of accused no.1 with her and the committal of suicide by her along with her small child Tejaswi took place within the period of seven years from her marriage, which certainly raises presumption under Section 113-A of the Evidence Act against the appellant herein, and therefore, considering the entire circumstances, it can be said that the appellant herein abetted commission of suicide by deceased Surekha and such presumption involves and connects the appellant with the crime.

43 Moreover, the mental condition of dismay and frustration of deceased Surekha is required to be assessed , since her husband 35 cra58.01

accused no.1 Kacharu demanded divorce from her due to termination of pregnancy by her behind the back of the accused persons and he threatened her not to reside in the matrimonial home and leave his house and even threatened her to cut her legs, as well as her father also was not happy when she went to parental house, since her younger sister was to be married and even she called her uncle PW3 Kashinath on the day of incident on telephone and narrated the afore said facts to him, but still there was no help to her from his end also, and the cumulative effect of the such distressful facts and circumstances took her to extreme end, feeling herself helpless, which drove her to commit suicide along with her small child and that too the mode of committal of suicide was of so disastrous manner i.e. throwing her child and herself on the railway track while committing the suicide, which itself reflects her mental agony, distress and and hatred for life, that too at the young age. 44 As regards the argument canvassed by the learned counsel for the appellant that the medical evidence of PW1 Dr. Prabhas Patil and the postmortem notes of Tejaswi at Exh. 13 and Surekha at Exh.14 falsifies the testimony of PW4 Sangita that she and deceased Surekha had meals together between 10.00 a.m. to 11.00 a.m., as the small intestines of both deceased were found empty at the time of postmortem, PW1 Dr. Prabhas Patil stated in 36 cra58.01

his deposition that the said dead bodies of deceased Tejaswi and Surekha were brought to the Civil Hospital for postmortem purpose on 18.8.1999 and it is apparent from the said postmortem reports that they were conducted between 9.00 a.m. to 10.00 a.m. and 10.00 a.m. to 11.00 a.m. respectively on the said date and no specific time has been brought on record in respect of deaths of Surekha and Tejaswi on 17.8.1999, and hence, even if the stomachs of both the deceased were found empty, although PW4 Sangita stated in her deposition that she and Surekha had meals between 10.00 a.m. to 11.00 a.m. on 17.8.1999, it cannot be construed that the testimony of PW4 Sangita can be falsified totally as canvassed by the learned counsel for the appellant, since there was no reason for her to state so falsely. Hence, the further argument canvassed by the learned counsel for the appellant that whatever stated further by PW4 Sangita in her deposition that she overheard the word from the mouth of Surekha while talking on telephone with PW3 Kashinath that accused demanded divorce from her, did not take place, and consequently, there was no aiding and abetting on the part of the accused asking divorce from deceased Surekha, cannot be accepted only on the alleged ground that the stomachs of both deceased Surekha and Tejaswi were found empty, although PW4 Sangita stated that she and Surekha had meals between 10.00 a.m. to 11.00 a.m. on 17.8.1999, and accordingly, the said argument canvassed by 37 cra58.01

the learned counsel for the appellant is far fetching, and hence, deserves to be discarded.

45 As regards the defence of the appellant that deceased Surekha was consuming the tablets and as a result, her mental condition was affected, which resulted into possibility of committal of suicide by her, it is also canvassed that the father of Surekha was annoyed since she used to visit her parental house frequently and used to stay there and since their second daughter Seema was unmarried, which led Surekha to commit suicide. However, in the evidence, it has nowhere come on record that as to what sort of tablets Surekha used to consume and what was the name of the tablets. It has also not come in evidence that the mental condition of Surekha was affected by consumption of such tablets. It is even not the case of the defence that Surekha was mentally derailed. Moreover, the defence has not substantiated the contention that the father of Surekha prevented Surekha from coming to her parental house, since his second daughter was yet to be married as allegedly Surekha used to visit parental house frequently. Moreover, there is no evidence on record that on the date of occurrence of the incident i.e. committal of suicide, Surekha had visited the parental house and her father was annoyed with her. Hence, considering the afore said lacunae, the defence put forth by the accused/appellant is not 38 cra58.01

convincing and digestible.

46 As regards the judicial pronouncements cited by the learned counsel for the appellant, considering the foregoing facts, as discussed herein above, in the instant case, it is apparent that the facts and circumstances in the present case and the facts and circumstances in the cases cited by the learned counsel for the appellant differ from each other and considering the totality of the circumstances, in the instant case, I am of the view that the observations made in the said judicial pronouncements (supra) cannot be of any aid and assistance to the case of appellant herein. 47 Moreover, after scrutinizing, assessing and analysing the evidence on record, the learned Trial Judge arrived at the conclusion that the prosecution has proved and established the charges levelled against the appellant herein for the offence punishable under Section 498-A and Section 306 of the Indian Penal Code and held the appellant/accused no.1 guilty thereof and convicted him thereunder and sentenced for the offence punishable under Section 498-A of the Indian Penal Code, but no separate sentence was awarded under Section 306 of the Indian Penal Code against him, and there appears to be no glaring defect warranting the reversal of the said judgment, nor the said view appears to be perverse, as well as the reasoning 39 cra58.01

adopted therefor also cannot be faulted with. I am not inclined to accept the submission advanced by the learned counsel for the appellant, and hence, no interference therein is called for in the present appeal, and therefore, the present appeal deserves to be rejected.

48 In the result, present appeal stands dismissed and the conviction and sentence imposed upon the appellant herein, by way of judgment and order, dated 22.1.2001, rendered by the learned Additional Sessions Judge, Ahmednagar in Sessions Case No. 202 of 1999, stands confirmed. Appellant viz. Kacharu Bhausaheb Sonawane to surrender before the Trial Court i.e. learned Additional Sessions Judge, Ahmednagar, within the period of three weeks to undergo the sentence as directed therein, failing which the Trial Court to take suitable steps against the appellant, in accordance with law. Bail bond of the Appellant stands cancelled. Office to communicate the afore said order to the learned Additional Sessions Judge, Ahmednagar forthwith. Present appeal stands disposed of accordingly.

(SHRIHARI P. DAVARE),

JUDGE.

dbm/cra58.01

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