259-APPEAL-152-2003.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.152 OF 2003
THE STATE OF MAHARASHTRA )…APPELLANT
V/s.
1) RAJKUMAR CHANDRAKANT KAVADE )
2) SMT.SHANTABAI CHANDRAKANT KAVADE)
3) SMT.SHAILA SANJAY PATIL (MAGAR) )…RESPONDENTS
Mr.Ameet Palkar, APP for the Appellant – State.
None for the Respondent.
CORAM : A. M. BADAR, J.
DATE : 16th JUNE 2017
ORAL JUDGMENT :
1 By this appeal, the State is taking exception to
acquittal of respondents / original accused nos.1 to 3 of offences
punishable under Sections 498A and 306 read with 34 of the
Indian Penal Code recorded by the learned Ad-hoc Assistant
Sessions Judge, Solapur, on 17 th June 2002 in Sessions Case
No.245 of 2001.
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2 Case of the prosecution is thus :
(a) Ujwala Vitthal Pawar, resident of Jevali in Osmanabad
district, married respondent no.1 / accused Rajkumar
Chandrakant Kavade on 31st December 1990. Thereafter she
started cohabiting with him at village Boramani in Solapur
district. Respondent no.2 / accused Shantabai Kavade is
mother whereas respondent no.3 / accused Shaila Sanjay
Patil is married sister of respondent / accused no.1 Rajkumar
Kavade. According to the prosecution case, at and about the
time of the incident, respondent / accused no.3 Shaila was
at her parental house, though she is a resident of village
Boramani in Tulzapur taluka of Osmanabad district.
(b) It is the case of prosecution that after six months of
her marriage, married life of Ujwala started facing rough
weather. Accused persons started demanding Rs.25,000/-
from her for repayment of loan. They used to beat her,
abuse her and keep her without food on account of this
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demand. She was asked to work in the agricultural field and
they used to send her for grazing cattles. It is further alleged
that at the time of Choli ceremony, accused person
demanded a steel almirah and four tolas of gold from
Ujwala. As that demand was not complied, they started
threatening her.
(c) In the evening of 11th August 2001, PW1 Mangal
Vitthal Pawar – mother of Ujwala received message that her
daughter died due to drowning in the well. PW1 Mangal
then went to village Boramani. On the next date, dead body
of Ujwala was fished out from the well. On 15 th August
2001, PW1 Mangal lodged First Information Report (FIR)
against accused persons with Solapur Taluka Police Station,
Solapur, which resulted in registration of Crime No.92 of
2001 for offences punishable under Sections 498A and 306
read with Section 34 of the Indian Penal Code. Wheels of
investigation were then set in motion. Routine investigation
followed, on completion of which, accused persons were
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charge-sheeted. As the offence punishable under Section
306 of the Indian Penal Code is exclusively triable by the
Court of Sessions, the learned Magistrate was pleased to
commit the case to the Court of Sessions.
(d) In order to bring home the guilt of accused persons, the
prosecution has examined in all seven witnesses. Informant
Mangal Pawar – mother of the deceased Ujwala is examined
as PW1. PW2 Chandrakant Patil and PW3 Vinayak Patil are
neighbours of PW1 Mangal Pawar. PW4 Dr.Suryakant
Kambale is examined to prove report of postmortem
examination of dead body of Ujwala Rajkumar Kavade.
Channavir Kallaya Swami – panch witness to the spot
panchnama is examined as PW5. PW6 Abdul Rashid
Ibrahim Shaikh has recorded FIR lodged by PW1 Mangal.
PW7 P.S.I. Rajkumar Kendre had conducted investigation of
the crime in question. On completion of evidence of
prosecution and on recording of statement of accused under
Section 313 of the Code of Criminal Procedure, after hearing
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the parties, the learned trial court by the impugned
judgment and order was pleased to acquit all accused
persons of charges leveled against them by holding that
death of Ujwala Rajkumar Kavade was accidental and
prosecution has failed to prove that she was subjected to
cruelty by accused persons, and that, they abetted
commission of suicide by her.
3 I have heard the learned APP appearing for the
appellant / State. He vehemently argued that the spot
panchnama does not show any marks to substantiate theory of
accidental death. According to the learned APP, the spot
panchnama does not reflect any floating vessel in the well water
and therefore, the learned trial court erred in concluding that
death of Ujwala was accidental. He further argued that evidence
of PW1 Mangal – mother of the deceased goes to show that
initially there was demand of Rs.25,000/- from deceased Ujwala
for repayment of loan and she was subjected to cruelty on account
of failure to meet with that demand. He further argued that
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evidence of PW1 Mangal further shows that on account of Choli
ceremony, there was demand of a steel almirah and four tolas of
gold from Ujwala and again she was subjected to cruelty on
account of this demand. With this, the learned APP argued that
prosecution has established cruelty to a married woman by
accused persons and therefore, their acquittal needs to be
reversed.
4 None appeared for respondents / accused persons.
5 I have perused the record and proceedings including
deposition of witnesses and documentary evidence adduced by the
prosecution. In the case in hand, Ujwala Kavade, a married
woman, undisputedly died within twenty months of her marriage
with accused no.1 Rajkumar Kavade. Section 113A of the
Evidence Act deals with presumption as to abetment of suicide by
a married woman. The presumption under Section 113A of the
Evidence Act can be drawn when it is proved that suicide has been
committed by a married woman within seven years of her
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marriage, and that, her husband and his relatives had subjected
her to cruelty. However, such presumption is required to be raised
by having regard to all other attending circumstances of the case.
This is a rebuttal presumption. It is required to be raised only
when the prosecution establishes its initial onus of proving cruelty
to a married woman by accused persons as defined by Explanation
to Section 498A of the Indian Penal Code. To establish cruel
treatment to a married woman, the prosecution is enjoined to
establish that married woman was subjected to such a treatment,
so as to drive her to commit suicide or to cause grave injury or
danger to her life, limb or health. Such conduct is required to be
wilful. Similarly, harassment of a married woman with a view for
coercing her or any person related to her to meet any unlawful
demand for property or valuable security also amounts to cruelty
as defined by Explanation to Section 498A of the Indian Penal
Code. Let us, therefore, examine whether evidence of the
prosecution meets this requirement.
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6 Considering the nature of charge and the witnesses
examined by the prosecution, fate of the prosecution case to a
large extent hinges on testimony of informant mother – PW1
Mangal Vitthal Pawar. She has stated in her evidence that after six
months of her marriage, accused no.1 Rajkumar Kavade and
accused no.2 Shantabai Kavade started demanding Rs.25,000/-
from Ujwala for repayment of loan and on this count, they used to
beat her, keep her without food and insisted her to work in the
field. The Informant further deposed that at the time of
Ganeshchaturthi of last year, accused persons decided to perform
Choli ceremony of her daughter Ujwala and at that time,
demanded a steel almirah and four tolas of gold. They were
informed that it is not possible to give those articles. PW1 Mangal
deposed that, then accused persons had threatened to “see her”.
Ujwala was then harassed by accused persons. As per version of
PW1 Mangal, four days thereafter, she received message that
Ujwala died due to drowning in the well, and therefore, she went
to Boramani. This witness further stated that she lodged FIR 2 – 3
days after the death of her daughter.
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259-APPEAL-152-2003.doc7 Now let us see what the neighbours of PW1 Mangal
are stating about the incident of ill-treatment to Ujwala by
accused persons. As per version of PW2 Chandrakant, when
Ujwala came to village Jevali, he heard from Ujwala that accused
persons asked her to go to the field by carrying tiffin and she was
harassed for this work. This witness further heard that Ujwala
was making grievance that responsibility of household work was
kept on her by accused persons. As per version of this witness,
Ujwala told that she was harassed by accused persons on account
of demand of Rs.25,000/-, so also on account of demand of
cupboard and gold.
8 PW3 Vinayak - another neighbour of parental house
of Ujwala deposed that he heard from Ujwala that accused
persons were harassing her by abusing and by asking her to do
work of agricultural. He further deposed that accused persons
were asking her to bring one tola gold and cupboard at the time of
Choli ceremony and on this count, they were harassing her.
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259-APPEAL-152-2003.doc9 Cross-examination of PW1 Mangal goes to show that
accused no.1 Rajkumar Kavade is an agriculturist by occupation.
This witness accepted the fact that her daughter Ujwala and
accused no.1 Rajkumar Kavade were going to the agricultural field
daily and that Ujwala was also doing agricultural work in the field
of her husband. They both used to return back to the house in the
evening after working in the field for the whole day.
10 It is pertinent to note that in the case in hand,
evidence regarding cruelty and ill-treatment to the deceased
Ujwala is coming on record from the mouth of her mother as well
as her neighbours from the parental house. Her parental house is
situated at village Jevali in Osmanabad district whereas, her
matrimonial house was situated at a far off place i.e. at village
Boramani in Solapur district. Married life of deceased Ujwala was
hardly of twenty months. Evidence of prosecution is not
explaining as to on how many occasions Ujwala came to village
Jevali from her matrimonial house at village Boramani. This fact
assumes importance because her neighbours from parental house
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259-APPEAL-152-2003.docnamely PW2 Chandrakant and PW3 Vinayak have categorically
accepted the fact that their statements were not recorded by
police under Section 161 of the Code of Criminal Procedure. Both
these witnesses have stated that whatever they had stated before
the court is their first version about the incident and their police
statements were never recorded. When statements of both these
witnesses were not recorded during the course of investigation,
evidence of both these witnesses and their statements before the
court on the very first occasion becomes doubtful. The learned
trial court has disbelieved version of both these witnesses and
rightly so, on this count. I do not find any illegality in disbelieving
version of both these witnesses by the learned trial court.
11 Now comes the question of appreciation of evidence of
PW1 Mangal. Though this witness has stated about ill-treatment
and cruelty to her daughter Ujwala on account of demand of
Rs.25,000/- for repayment of loan and on account of failure to
meet demand of four tolas of gold and a steel cupboard on
occasion of Choli ceremony, this witness is not giving any further
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259-APPEAL-152-2003.docdetails about such demand. In case of such a nature and in such
type of offence, it is very easy to level allegations and once they
are leveled, it is very difficult to dislodge them, as such allegations
are made by near and dear ones of the deceased. Therefore, the
court is expected to apply strictest scrutiny and evidence of such
witness is required to be considered strictly with close
circumspection. If really her daughter was used to be subjected to
such type of ill-treatment and cruelty by not providing food to her
and by beating her on account of illegal demand, then nothing
prevented PW1 Mangal to lodge report about such behaviour of
accused persons during lifetime of Ujwala. This did not happen.
Even after death of Ujwala, though PW1 Mangal immediately
went to her matrimonial house, the report was not lodged with
promptitude. The incident of death of Ujwala due to drowning
was made known to PW1 Mangal on 11 th August 2001. On next
day she had seen dead body of her daughter Ujwala. However,
the FIR came to be lodged by her on 15 th August 2001. A married
sister of accused no.1 Rajkumar Kavade - husband of the deceased
is also arraigned as an accused. If really Ujwala was subjected to
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259-APPEAL-152-2003.docill-treatment by accused persons, then after coming to know about
her death because of cruel treatment by accused persons, nothing
prevented PW1 Mangal from lodging report against accused
persons. However, PW1 Mangal did not lodge report immediately
and waited for about three days for lodging report. This fact
coupled with her vague evidence regarding the ill-treatment,
prompted the learned trial court to hold that the prosecution has
failed to prove cruel treatment to deceased Ujwala by accused
persons and consequent abetment to her for committing suicide.
Such finding is perfectly in consonance with evidence on record
and needs no interference.
12 The learned trial court has also held that death of
Ujwala Rajkumar Kavade is accidental. However, considering the
fact that evidence of the prosecution does not establish any
provocation or incitement to the deceased to commit suicide and
as alleged cruel treatment to her is not established, I do not
propose to dwell upon this aspect of the matter. Suffice to state
that considering admission given by PW5 Channavir Swami -
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259-APPEAL-152-2003.docpanch witness that a vessel was found floating in the well when
the spot panchnama was conducted as well as the fact that report
of accidental death registered by police shows that Ujwala had
gone for fetching water from the well having steps and she was
subsequently found missing, the learned trial court is perfectly
justified in coming to such conclusion.
13 In the result, the appeal fails, and therefore the order :
i) The appeal is dismissed.
(A. M. BADAR, J.)
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