Bombay High Court Shivaji Janaba Patil, … vs State Of Maharashtra on 10 June, 2003Equivalent citations: I (2004) DMC 647, 2004 (1) MhLj 411 Author: J Chitre Bench: J Chitre
J.G. Chitre, J.
1. Both of them have been bear at length.
2. The petitioners are hereby taking exception to the judgment and order passed by the Additional Sessions Judge, Kolhapur at Kolhapur who dismissed Criminal Appeal No. 52 of 1990 by confirming the judgment and order convicting and sentencing the petitioners for the offences punishable under provisions of Section 498-A and 304-B read with Section 34 of IPC by which the petitioners have been sentenced to undergo various terms of sentence of imprisonment for respective offences. The petitioners are convicted for the offence punishable under Section 498-A and sentenced to undergo RI for 2 years and to pay a fine of Rs. 500/- in default to suffer further RI for three months. They have been convicted for the offence punishable under Section 304-B of IPC read with Section 34 and sentenced to undergo RI for five years.
3. The prosecution case in brief is that the petitioner No. 1 Shivaji was married with Prabhavati, daughter of PW Rahu Patil on 18.5.1987. At the time of marriage Rahu Patil had given golden Mangalsutra, silver toering (Jodavi) to Prabhavati and Rs. 2500/- in cash along with utensils, cloths, cot, etc, to Shivaji. The couple stayed together for six months and thereafter the petitioner Shivaji was invited for traditional “Divali Saan” (traditional visit of son-in-law to father-in-law’s house for celebrating Diwali along with the bride). Petitioner Shivaji, as per the prosecution case, wrote a letter Exhibit – 13 to Rahu Patil and demanded a golden chain weighing one tola and the cloth for a suit. On that Diwali visit, petitioner Shivaji and wife Prabhavati visited the house of Rahu Patil wherein Shivaji, the petitioner, was given a golden ring weighing half tola and a suit cloth by witness Rahu Patil, the father of Prabhavati. As per the prosecution case, Shivaji was annoyed and disappointed and left father-in law’s house earlier than schedule departure.
4. As per the prosecution case, after Diwali at some time PW Gundu, the brother of Prabhavati, visited the house of the petitioners for bringing Prabhavati to parental home to see her ailing mother who was suffering from Asthama. As per the prosecution case, the petitioners did not permit her to go to parents house. Thereafter Rahu Patil visited the house of the petitioner but he was not treated properly there. It is alleged by the prosecution that the petitioner Bayyakka abused and insulted him. He returned back.
5. It is the prosecution case that one Subrao, the friend and neighbour of the petitioners visited the house of Rahu Patil and during the visit he told Rahu Patil that his son-in-law was not happy on account of the present of golden ring which was less in weight than expected by Shivaji, the son-in-law.
6. After this, say about one year, Prabhavati was found dead floating on the water of the well which was 2 1/2 kms. away from the village.
7. A complaint was lodged by PW Rahu Patil, father of deceased Prabhavati against the petitioner which resulted in investigation and the charge in which the petitioners have been convicted and sentenced as mentioned above.
8. The first point which Mr. Gole submitted was that there is no evidence to show that Prabhavati was treated with cruelty. He made reference to the evidence on record. Shri Shringarpure, the Additional Public Prosecutor, also made reference to the evidence on record and submitted that there is abundant evidence of cruelty at the hands of the petitioners to Prabhavati. Both the Courts below have recorded a finding that the petitioners were illtreating Prabhavati and they were harassing her which was equivalent to cruelty as contemplated by the relevant provisions of IPC.
9. It has come in the evidence of Rahu Patil that Prabhavati had told him that she was treated with cruelty by the petitioners. Brother Gundu had also seen the harassment of Prabhavati at in-laws house. PW Subrao heard the quarrels which were taking place in the house. In addition to this, there is a letter on record i.e. Exhibit 13 which was sent by Petitioner No. 1 Shivaji to his father-in-law wherein he had demanded a chain of one tola for Diwali visit and had told him that he would not visit father-in-law’s house unless his demand was satisfied. It has also come in the prosecution evidence that Prabhavati was sent for doing agricultural work.
10. In so far as the evidence adduced by the prosecution on this point is concerned, what Gundu saw cannot be accepted because Gundu has not been examined. The quarrels which were heard by PW Subrao would be irrelevant to certain extent only. The evidence of PW Rahu Patil in context with Petitioner No. 2 and 3 is quite vague. He has not stated as to how the petitioner No. 2 and 3 were treating Prabhavati with cruelty. A general statement made and nothing more than that. However, the letter sent by petitioner No.1 Exhibit-13 and his early departure than scheduled one from father-in-law’s house will have to be considered along with evidence of PW Subrao. PW Subrao has stated that petitioner No. 1 Shivaji was very much disappointed by receiving only half tola golden ring from his father-in-law. Even Rahu Patil’s evidence shows that the said ring was returned by his mother to Rahu Patil. But there is no specific evidence on record to show that either petitioner Nos. 2 or 3 illtreated deceased illtreated Prabhavati. Though there is evidence on record that petitioner No. 1 by writing Exhibit-13 demanded golden chain weighing one tola and showed his disappointment as indicated by Subrao, there is no evidence on record to show that he illtreated Prabhavati. The prosecution is obliged to prove that the accused behaved with the deceased in such a way which amounted to cruelty as indicated by provisions of Sections 498A and 304B of IPC. There is no evidence on record to show that such a golden chain was agreed to be given at the time of marriage. Additionally, the son-in-law is well treated by his in-laws at their house during Diwali festival and some gifts are given to him according to the financial potential of said in-law. There may be happiness expressed by said son-in-laws or disappointment shown by him in respect of such Diwali festival gifts. But disappointment in that context unless connected with dowry related to the marriage and demand of it as dowry cannot be taken to be cruelty as contemplated by Section 498A or Section 304B of IPC.
11. For bringing home the guilt in context with Section 498A or 304B of IPC there has to be a specific evidence to show that the bride was harassed, illtreated, treated with cruelty on number of occasions which was sufficient enough to prompt her to commit suicide. The Court cannot afford itself to be aloof or noninformative of normal human behaviour and humanly transactions which are being transacted in day to day routine life. There are petty quarrels or brushing or conflicts on number of counts in day to day life between a bride, her in-laws, her husband, the sisters or the brothers of the husband. Every such petty bickering or disagreement cannot be treated to be “cruelty” in parlance of law in respect of Section 498A, 304B of IPC. If they are to be taken into the sweep of the provisions of these two sections, then, it would be very difficult for the persons to survive in normal domestic life. Cruelty should be to such an extent which would make the bride fade up and to abandon the matrimonial life by committing suicide. The harassment, illtreatment or cruelty should be of such an extent which would make her disinterested in living in matrimonial tie or in matrimonial home and that would be sufficient enough to prompt her to commit suicide. There has to be a nexus between such harassment, illtreatment, cruelty and the death.
12. At the same time, the prosecution is obliged to prove, as law demands, that the death was not natural one, accidental one, but was all and all suicidal. For that purpose the surrounding circumstances will have to be seen in a proper perspective. The Court cannot allow itself to be noninformative of routine life of the people. In the present case, both the Judges, trial Judge as well as first appellate Judge gave unnecessary importance to not finding of pot floating on the after sufficient enough to indicate that she had not gone there for drinking water. They also pointed out that the said well was having an electric engine fitted to it. But they lost the sight of glaring fact that she had gone alone to said well. This fact cannot be all the time weighed against the petitioners, the accused, because the well as situated near the field of the petitioners themselves. Therefore, she must have been well acquainted with the said well and, therefore, she might have gone all alone to the said well for bringing water. Generally, the engine is not set to operation by a single person for drinking water, when there are steps made for a person to enter into the well and to draw the water. The criteria which is familiar to city dwellers cannot be applied to villagers. A city dweller takes some small utensil for the purpose of drawing water from well and drinking it in it. But villagers often drink water by using their palms. It has come in the evidence of PW-7 Shahu Bardeskar that a female had slipped through the said steps when she had gone to the said well for drinking water by using said steps. Therefore, possibility of deceased Prabhavati drowning in the said well by slipping from the said steps cannot be over ruled.
13. It is also to be kept in mind that when the dead body of Prabhavati was taken out of that well she was having ornaments on her body. A fade up woman who decided to commit suicide and to abandon her matrimonial life so soon would not commit suicide by wearing so many ornaments on her body. It is to be noted that she was having toerings on her fingers of the feet, she was having paijan “anklets” around her ankles. Normally these ornaments are used by women when they go out for other work or for attending some functions or for visiting any other places. Generally, the women folk would not commit suicide by wearing such ornaments, of course there cannot be hard and fast rule. Had she gone for committing the suicide, she would not have selected a well which was at the distance of 2 1/2 kms away from the village. She would have found wells in the village itself for doing away with her life which would have facilitated her for achieving her purpose. Keeping in view all these surrounding circumstances it cannot be definitely said that she committed a suicide. When two inferences are cropping up, the inference in favour of the accused has to be given preference which both the two courts below have not done. Therefore keeping in view these circumstances, it will have to be held that both the Courts below have committed the gross error in drawing a proper conclusion from evidence on record. It is a case of misreading of evidence on this point.
14. The death of deceased has to be connected with demand of dowry as contemplated by Section 304B of IPC. For proving the offence punishable under Section 498a of IPC the harassment, illtreatment, cruelty has to be proved as law requires. Small bickering, incidental accusations do not amount to illtreatment as contemplated by law. These are normal phenomenan of human life. Intention behind such quarrels, bickering and accusations has to be seen. Casual loss of temper and resultant accusations do not amount to cruelty in legal parlance. The evidence on record in this case is very insufficient to bring home the ingredients of Section 498A and Section 304B of IPC. There is no ground to draw an inference as indicated by Section 113 A and B of Indian Evidence Act, 1872. Both the Courts below have lost sight of this important aspect and, therefore, they landed in gross error of appreciation of evidence. They misread the evidence on this point also.
15. Thus, the trial Court committed the gross error of law in appreciating the evidence and drawing the conclusions. They misread the evidence and, therefore, failed in error of recording the finding of proving the offences punishable under Sections 498A and 304B of IPC. Resultantly, they committed the error in convicting and sentencing the petitioners for the offences mentioned above.
16. Thus, this petition is allowed. The order of conviction and sentence passed against the petitioners stands set aside and the petitioners are hereby acquitted. The bail bonds furnished by them stand cancelled. Fine if paid by them be refunded to them.
17. Parties to act on ordinary copy of the order duly authenticated by the Private Secretary of this Court.