Bombay High Court Vasant S/O Bhagwat Patil-vs-The State Of Maharashtra on 22 June, 2011
Bench: Shrihari P. Davare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPEAL NO. 82 OF 2001
Vasant s/o Bhagwat Patil,
age 35 years, occ. Service,
r/o Jalgaon, Tq. And Dist. Jalgaon …Appellant (Original Accused No.1)
VERSUS
The State of Maharashtra …Respondent …..
Shri S.M.Godsay, advocate holding
for Shri U.B.Bondar, advocate for appellant (original accused no.1) Smt. Y.M.Kshirsagar, A.P.P. for respondent
…..
CORAM : SHRIHARI P.DAVARE, J.
DATE OF RESERVING
THE JUDGMENT : 16.06.2011 DATE OF PRONOUNCING
THE JUDGMENT : 22.06.2011 J U D G M E N T : –
1 Challenge in this appeal is to the conviction and sentence, inflicted upon the appellant (original accused no.1) by way of 2 cra82.01
judgment and order, dated 16.2.2001, rendered by the learned rd
Additional 3 Additional Sessions Judge, Jalgaon, in Sessions Case No. 229 of 1995, thereby convicting the appellant for the offence punishable under Section 304B of the Indian Penal Code and sentencing him to undergo R.I. for 7 years and to pay fine of Rs. 500/-, in default to suffer R.I. for one month; and also convicting the appellant for the offence punishable under Section 306 of the Indian Penal Code and sentencing him to undergo R.I. for 5 years and to pay fine of Rs. 250/-, in default to suffer R.I. for 15 days; and further convicting the appellant for the offence punishable under Section 498-A of the Indian Penal Code and sentencing him to undergo R.I. for one year and to pay fine of Rs. 100/-, in default to suffer R.I. for eight days; and also further convicting the appellant for the offence punishable under Section 4 of the Dowry Prohibition Act and sentencing him to undergo R.I. for three months and to pay fine of Rs. 100/-, in default to suffer R.I. for eight days; and also directing that all the afore said substantive sentences imposed against the appellant (original accused no.1) to run concurrently. However, it appears that the other accused nos. 2 to 6 were acquitted of the said charges levelled against them.
2 The factual matrix of the prosecution case is as follows :- 3 cra82.01
The parties herein after are referred as per their original status as, “the complainant’ and ‘the accused’).
One Mr. Keshav Senu Nehete i.e. the complainant and Prosecution Witness No.1, who is the brother of victim Sunanda, lodged the report (Exh.56) on 14.7.1995 at 2015 hours at M.I.D.C. Police station, Jalgaon, alleging that he and his brother Bhagwat were serving in Raymond Woolen Company and they had one sister, namely Sunanda. He stated that the marriage of his sister Sunanda with accused Vasant took place in May, 1994 as Gandharv Vivah and at that time, the complainant paid Rs.45,000/- and 50 grams gold to the accused. The appellant i.e. original accused no.1 was in the employment of Jain Pipe Company and used to reside at Ayodhya Nagar at Jalgaon.
3 Accused no.2 Bhagwat and accused no.3 Narmadabai are the parents of accused no.1 Vasant; whereas accused no.4 Pramila, Juvenile accused no.5 and accused no.6 Shridhar are the relatives of accused no.1. It is alleged that after the marriage, Sunanda went to reside at Jalgaon with accused no.1. However, accused nos. 1, 2 and 4 used to illtreat her on account of demand of Rs.10,000/- and Sunanda conveyed the same to the complainant. Hence, the complainant approached the accused and paid Rs. 4 cra82.01
10,000/- and requested not to illtreat his sister Sunanda. Thereafter again accused illtreated Sunanda and demanded more amount of Rs.8,000/- after about two months. Hence, brother of complainant, namely Bhagwat paid Rs.8,000/- to accused no.1 and inquired what he did about the earlier amount of Rs.10,000/- which was already paid to them. Thereupon, it was stated that the said amount was spent for plastering to the house and by further amount of Rs.8,000/- they were to complete the electric fitting. It is also alleged that after lapse of about one month, accused no.1 again insulted and taunted the victim. Moreover, they also instructed the complainant to go out of their house and asked him not to visit their house again. It is further alleged that the accused threatened that they have not provided 20 tolas gold as demanded and only provided 5 tolas gold and that they would burn Sunanda for not providing the gold as demanded. According to the complainant, at that time, Ramkrishna Dagadu Patil of Turkheda and Shridhar Vithu Sawadekar of Asoda arrived there and the complainant along with them went inside the house of the accused and tried to persuade his sister. It is alleged that at that time his sister i.e. victim Sunanda disclosed that accused nos. 2 to 4 used to instigate accused no.1 to assault and abuse her, and therefore, accused no.1 used to assault Sunanda. 4 It is further alleged that on 10.7.1995 also victim Sunanda 5 cra82.01
disclosed before the complainant about the illtreatment at the hands of the accused and unlawful demand of Rs.20,000/- by them for completing remaining construction work of their house. She also stated that if the said amount was not paid within two days, the accused would make her life miserable and it would be impossible for her to live more. Hence, the complainant attempted for mediation through mediators Madhukar Roopchand Choudhari, r/o Jalgaon and Prabhakar Mitharam Chirmade, r/o Asoda and persuaded accused no.1 and his parents and other accused and assured to pay Rs. 20,000/- and requested not to illtreat her sister Sunanda. Thereafter on 11.7.1995 the complainant sent his brother, namely Bhagwat to fetch her, but accused did not send her with him. It is further alleged that on 14.7.1995 at about 5.30 a.m., one Rajendra Sonu Bhangale i.e. brother-in-law of the complainant approached him and informed that the condition of his sister Sunanda was serious. Hence, they came to Jalgaon at the house of the accused and found that Sunanda was dead due to burning and there was smell of kerosene in the house of the accused, and hence, the complainant inquired with accused no.1 how she expired and thereupon he informed that at about 2.45 (mid night) Sunanda poured kerosene on her person and committed suicide. Accordingly, it is the case of the prosecution that since August, 1994 the accused used to illtreat and harass victim Sunanda for demand of cash amount, and therefore, she 6 cra82.01
committed suicide on 14.7.1995 at 2.45 a.m., and it is further alleged that the accused persons are liable for her death. 5 Pursuant to the said incident, A.D. No. 27 of 1995 was registered and thereafter PW1 Keshav i.e. the complainant lodged report Exh. 56 with M.I.D.C. Police station, Jalgaon against the accused and C.R. No. 131 of 1995 was registered against them for the offences punishable under Sections 306, 304B and 498-A r/w 34 of the Indian Penal Code and also under Sections 3, 4 and 7 of the Dowry Prohibition Act at M.I.D.C. Police Station, Jalgaon, and consequently, PW6, P.S.I. Bhagwat Patil carried out the investigation in the crime and prepared the spot panchanama and inquest panchanama at Exhs. 60 and 61 respectively, and thereafter dead body was sent for postmortem examination to the Civil Hospital, Jalgaon along with the letter Exh.67, as well as inquest form Exh.68 was also submitted for conducting postmortem examination. Accordingly, PW3 Dr. Kavita Sontakke performed the postmortem on the said dead body and found that victim Sunanda had sustained 100 per cent burns and said burns were noted in column no.17 of the postmortem notes, which are produced at Exh.63 and the cause of death was shock due to extensive burns (100%).
6 During the course of investigation, PW6 P.S.I. Bhagwat 7 cra82.01
arrested accused persons on 15.7.1995 and recorded the statements of witnesses and after receiving the postmortem notes and after completion of investigation, he filed charge sheet against the accused before the learned Judicial Magistrate, First Class, Jalgaon. However, as the case was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions, at Jalgaon. 7 Thereafter, charge (Exh.35) was framed against the accused persons, except juvenile accused no.5, for the offences punishable under Sections 304B, 306, 498A r/w 34 of the Indian Penal Code and also under Section 4 of the Dowry Prohibition Act r/w 34 of the Indian Penal Code on 5.8.1999. However, the accused persons pleaded not guilty and claimed to be tried. 8 To substantiate the case of the prosecution, the prosecution examined as many as 6 witnesses as mentioned below :-
PW1 Keshav Senu Nehete, complainant – brother of victim Sunanda
PW2 Arvind Gangaram Patil, Panch to the Spot Panchanama Exh.60
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PW3 Dr. Kavita Satish Sontakke, who conducted postmortem and prepared postmortem notes Exh.63.
PW4 Subhadrabai Senu Nehete, mother of victim PW5 Prabhakar Mitharam Chirmade, neighbour of complainant PW6 Retired P.S.I., Bhagwat Parshuram Patil, investigating officer.
9 Apart from the afore said oral evidence adduced by the prosecution, the prosecution also produced documentary evidence, such as, complaint Exh.63, spot panchanama Exh.60, inquest panchanama 61, postmortem notes Exh. 63, memo issued to the Civil Hospital, Jalgaon by the investigating officer Exh.67 and police report sent for postmortem examination Exh.68.
10 The defence of the accused persons was of total denial and they never illtreated Sunanda or demanded any dowry amount from her and Sunanda died by accidental death when she was heating cooked food after arrival of accused no.1 from his duty in the night due to explosion of stove. However, the accused neither examined themselves on oath nor examined any defence witness on their behalf.
11 After considering the oral and documentary evidence 9 cra82.01
adduced and produced by the prosecution, and also after considering rival submissions advanced by the learned counsel for the parties, learned Trial Judge acquitted accused nos. 2 to 6, except juvenile accused no.5, for all the charges levelled against them, but convicted and sentenced accused no.1 Vasant Bhagwat Patil for the offences as afore stated. Being aggrieved and dissatisfied by the impugned judgment and order of conviction and sentence, rendered by Trial Court against the accused no.1 i.e. appellant herein, he has preferred the present appeal challenging the same and prayed for quashment thereof.
12 In order to deal with the submissions advanced by the learned counsel for the parties effectively, it is necessary to advert to the material evidence adduced/produced by the prosecution and in the said context, coming to the deposition of complainant PW1, Keshav Senu Nehete i.e. brother of deceased, who has stated that Sunanda was his sister and she performed marriage with accused no.1 about 8 to 9 months prior to the date of incident. According to him, it was settled that marriage would be performed by giving dowry of Rs.45,000/- in cash and gold of 50 grams and marriage was to be performed by the complainant’s side by incurring expenditure therefor. Accordingly, marriage of accused no.1 and Sunanda was performed as Sulagna i.e. Gandharva form at Asoda and since 10 cra82.01
accused no.1 was in service in Jain Pipes, he used to reside at Ayodhya Nagar along with accused no. 2, his sister’s daughter Hemlata and his son from first wife.
13 PW1 Keshav further stated that initially his sister was treated well after marriage for about three months, but thereafter the accused persons illtreated victim Sunanda and accused nos. 1 and 2 started demanding Rs.10,000/- from her, as disclosed by Sunanda. Hence, PW1 Keshav paid Rs.10,000/- to accused nos. 1 and 2 in person. However, he stated that again after lapse of 2 to 2½ months illtreatment was started to Sunanda by the accused and they again demanded amount of Rs.10,000/- for house. Hence, he further stated that his brother Bhagwan paid an amount of Rs.8,000/- to the accused. However, he further stated that again after lapse of 2 and 2½ months, accused demanded amount of Rs.20,000/-, and threatened that if the amount is not paid by Sunanda, she will be murdered by accused persons. Moreover, he further stated that after marriage, he used to meet his sister at her house and Sunanda used to disclose before him that if the demanded amount was not paid to the accused, they would commit her murder. He further stated that the information about subjecting victim Sunanda to illtreatment was given to the grand-father of accused no.1, namely 11 cra82.01
Shridhar Vishnu. Moreover, he also called to accused no.1 to solve their problems on 12.7.1995. It is further alleged that on 12.7.1995 accused no.1 did not attend the meeting, but thereafter on 14.7.1995 his brother-in-law Rajendra Sonu Bhangale came to convey him at about 5.00 a.m. at Jalgaon, informing him that his sister was serious. Hence, PW1 Keshav stated that he himself, his mother and his brother went to the house of accused no.1 at Jalgaon and found that his sister Sunanda was lying in dead condition. On inquiry, the accused disclosed him that Sunanda committed suicide by setting herself on fire. Thereafter, Sunanda was taken to the Civil Hospital, Jalgaon. However, PW1 Keshav stated that at that time, they were threatened by one Ramkrishna Dagadu Patil that no report be lodged against his brother i.e. original accused no.1 Bhagwat and report be lodged only against accused no.1. However, PW1 complainant Keshav lodged report on 14.7.1995 against the accused persons contending that his sister Sunanda was illtreated by the accused persons and she died due to the said illtreatment caused by the accused persons.
14 During cross-examination conducted by accused nos. 1 to 3, PW1 Keshav admitted that the word, “dowry” is not mentioned in the report Exh. 56 and he could not assign any reason why the said word “dowry” was not mentioned therein. He also stated that lump 12 cra82.01
sum amount of Rs.45,000/- was paid by him in lieu of articles to be provided to the accused, with a view that her marital life should be smooth and also with love and affection. As regards the payment of amount of Rs.8,000/-, there appears to be omission. However, he categorically stated that again after the period of 2½ months, illtreatment started for the demand of Rs.20,000/-, but there is again omission in that respect in his report Exh. 56 and improvement in his testimony. He also stated that he made inquiry with the accused how the amount of Rs.18,000/-, which was paid by him, was used by them and thereupon the accused replied that the said amount was used for plastering and colouring.
15 As regards earlier marital life of Sunanda, he stated that her previous husband resided at Igatpuri and he is in service of some company. Moreover, as regards earlier marriage of accused no.1, he stated that he does not know where first wife of accused no.1 resided, but he knew that accused no.1 was married prior to his marriage with Sunanda and he was having a son from his first wife. He admitted that regular ceremonies as per Vedic procedure were not followed at the time of marriage with accused no.1. He further stated that marriage of Sunanda with accused no.1 was also not performed by registered procedure.
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16 As regards the death of Sunanda, he stated that when he saw the dead body of Sunanda, only her legs were found burnt, but other part of her body was not found in burnt condition and he stated that at the time of lodging the report, i.e. on the second day of the incident, he stated before the police that Sunanda was murdered. However, police did not mention in the report that murder of Sunanda was committed. He further stated that the fact of committal of suicide by Sunanda, mentioned in the report Exh.56, is incorrect, but he denied that the other facts therein were incorrect. However, he admitted that he did not state to police that the fact of committal of suicide mentioned in the report was wrong. He also stated that he opposed the bail application filed by the accused by filing his affidavit, wherein he stated that accused committed murder of Sunanda by giving shock and strangulation. Hence, suggestion was given to him that accused never demanded any amount to Sunanda and they had not illtreated her for that purpose, but he denied the same. It was further suggested to him that at the time of marriage, no dowry amount of Rs.45,000/- and 50 grams of gold was given to the accused, but same was denied by him. It was also suggested to him that the marriage between accused no.1 and Sunanda was not a valid marriage, since their earlier spouses were alive, but same was also denied by him. The defence also put up its case to him that Sunanda died due to explosion of stove by way of accident when she 14 cra82.01
was cooking, but same also was denied by him.
17 In the cross-examination conducted by accused nos. 4 and 7, PW1 Keshav stated that the marriage by way of Sulagna procedure was performed with the mediation of accused no. 7 Shridhar and his father-in-law, and hence, PW1 Keshav used to inform them about the illtreatment suffered by Sunanda. He denied that when ceremonies of Sulagna were performed, Sunanda was having amount of Rs.1,15,000/-, which was kept in her name by her father. He also stated that amount of Rs.30,000/- was kept in fixed deposit in her name in Bahinabai Chaudhari Bank at Asoda. He denied that accused no.1 was the nominee to the said fixed deposit receipt. He volunteered that the said fixed deposit was obtained prior to marriage of Sunanda with accused no.1, but there is no cross-examination in respect of said voluntary statement. He also stated that accused were having income from agricultural land and they could maintain themselves properly. He further stated that when sulagna of Sunanda was performed with accused no.1, he was in service in Jain Pipes and he made inquiry about his monthly salary i.e. Rs.1,500/- per month. The defence put up its case to PW1 Keshav that prior to sulagna of Sunanda, she was taking treatment of Dr. Nemade, but same was denied by him. It was also suggested to him that Sunanda was not subjected to harassment by the accused, 15 cra82.01
but same was denied by him. Suggestion was also given to him that on the date of incident, accused no.1 returned from his duty in the mid night and at that time while providing meal to him by Sunanda, she met with accident and thereby died, but same was denied by him.
18 Coming to the evidence of PW3 Dr. (Sau) Kavita Satish Sontakke, wherein she stated that she was working as Medical Officer in Civil Hospital, Jalgaon in July 1995 and on 14.7.1995, dead body of Sunanda was brought by police personnel of M.I.D.C. Police station, Jalgaon for conducting postmortem. Accordingly, she st th
conducted postmortem on the said dead body and found 1 to 4 degree burns on her body and the total burns were 100 per cent and all the said burn injuries are mentioned in column no.17 of the postmortem notes. She also stated that during internal examination, she found no fracture to the skull bone, brain and meninges were congested, mucous larynx, trachea red and congested,soot particles seen in trachea; both lungs were congested; left side of heart was empty, right side was full of blood; stomach was empty, mucous membrane red and congested; small intestine and large intestine full of gases, lever, pancreas, spleen, kidney were congested. Bladder was empty. Organs of regeneration gravid uterus of about 28/30 weeks seen, still burn female child of about 28/30 weeks extracted. 16 cra82.01
According to her, cause of death was, shock due to extensive burns (100%). She prepared postmortem notes, which are produced at Exh. 63. She stated that said victim died before 24 hours prior to conducting the postmortem notes.
19 During cross-examination conducted by accused nos. 1 to 3, she stated that according to her opinion, the period of death can be extended up to 10.00 a.m. of 13.7.1995. She admitted that for fixation of time of death one of the factors is postmortem lividity, but she admitted that in postmortem Exh.63 she has not mentioned about postmortem lividity. She further stated that for calculating fixation of time, she considered the condition of rigor mortis and decomposition signs. She also stated that process of rigor mortis starts after about six hours and it continues upto 12 hours and remains constant thereafter for further 12 hours and then decreases. According to her opinion, deceased Sunanda might have died within 24 hours on 14.7.1995 from 11.00 p.m. and she might have also died at about 11.00 p.m. on 14.7.1995. She further categorically stated that deceased was pregnant. She agreed that after gestation(conception) till the end of lactation, some physiological metabolic changes used to happen in the body. She also agreed that in some cases, due to above changes some psychic changes may also happen in the pregnant lady, and she further agreed that 17 cra82.01
due to above changes, in some cases, suicidal tendency is likely to be developed in pregnant ladies.
20 Turning to the deposition of PW4 Subhadrabai Senu Nahete i.e. mother of victim, wherein she stated that marriage of Sunanda was performed with accused no.1 prior to 14 months of the incident, and at the time of marriage 50 grams gold was given as dowry. She also stated that after marriage, some amount was given to Sunanda, since she was harassed and illtrated by the accused. She also stated that after marriage for about three months Sunanda was treated properly. In the said context, she stated that after marriage an amount of Rs.10,000/- was demanded in the beginning, which was given to the accused by his elder son i.e. the complainant PW1 Keshav. However, after payment of said amount of Rs.10,000/-, again she was illtreated by the accused for compliance of more amount for plastering the house, and hence amount of Rs.8,000/- was paid by his younger son Bhagwat to the accused. However, after payment of the said amount, accused used to illtreat Sunanda, which was disclosed by her to her brother. She also stated that Sunanda used to cry before her because of illtreatment at the hands of the accused sustained by her for the payment of cash amount. She also stated that she used to go to Sunanda. She further stated that even after payment of amount of Rs.18,000/- to the accused, the accused 18 cra82.01
used to demand more cash amount. However, she stated that after payment of Rs.18,000/- they did not pay more amount to the accused, and because of non-payment of the amount, the accused used to beat Sunanda and also used to harass her on that count. She further stated that after some days, she received information from Raju Sonu Bhangale about the death of Sunanda. Hence, she, her son i.e. complainant and another son and the relatives visited the house of the accused at Jalgaon and saw the dead body of Sunanda in burnt condition and there was smell of kerosene thereto. Accordingly, she categorically stated that Sunanda died due to harassment by the accused for demand of dowry amount. 21 While conducting the cross-examination by learned counsel for accused nos. 1 to 3, she admitted that the fact of giving 50 grams gold as dowry was stated by her for the first time before the court. She also stated that accused demanded Rs.10,000/- and Rs.8,000/- to her son as help for construction and repairs of the house, which was disclosed by her son. She also stated that her son paid the said amount to accused without any hesitation and willingly and she also did not raise any objection therefor. She further stated that Sunanda visited their house for about 5 to 6 times after the marriage till her death and the distance between Jalgaon and Asoda was about 2 to 2½ kms. Suggestion was given to her that Sunanda 19 cra82.01
was not illtreated by the accused persons, but same was denied by her. In the cross-examination conducted by learned counsel for respondent nos. 4 and 7, she admitted that accused had not personally demanded any amount when she met them. She also stated that she never spoke to accused when she visited their house at Jalgaon. She also stated that facts regarding illtreatment were narrated by Sunanda to her. However, she did not talk anything regarding the said illtreatment with the accused. She further stated that 50 grams gold was given to the accused as per their sweet desire. She believed that the matter regarding illtreatment to Sunanda would be patched up. She stated that she did not know whether Sunanda was taking medical treatment of one Dr. Nemade. 22 That takes me to the testimony of PW5 Prabhakar Mitharam Chirmade, who is the neighbourer of the complainant, who stated that Sunanda used to visit Asoda after the marriage and Sunanda used to meet him at that time and she used to disclose to him about the illtreatment caused by the family members of her house. She used to tell him that they used to demand cash amount from her. He also stated that prior to the incident he had gone with the complainant to the accused for persuading him. He also stated that accused no.1 used to demand cash amount for construction of the house and thereupon they told him that amount would be paid at 20 cra82.01
the time of harvesting season. He further stated that after the meeting, which took place with accused no.1, they received message that Sunanda was burnt. The said message was received by them after about 15 to 20 days of the said meeting. Hence, all of them came to Jalgaon to the house of accused no.1 and they saw that Sunanda was burnt and died due to causing of harassment by the accused.
23 During cross-examination conducted by learned counsel for respondent nos. 1 to 3, he stated that he was just like family member of the complainant, since the complainant was his brother- in-law. He also stated that when he met Sunanda, he inquired about the reason of her visit to Asoda and she disclosed that she came to take the amount from her maternal home because of the demand made by the accused. However, he stated that he did not inquire the purpose of the requirement of the amount by her or by them. He also did not make inquiry with the complainant whether any amount was paid or not by him to Sunanda and if paid how much amount he had paid to her. He further stated that Sunanda disclosed before him 2-3 times that she had come to take the amount. He inquired with the complainant regarding the reason of demand of cash amount by Sunanda to him, and the complainant told him that Sunanda demanded cash amount for complying the demand made by the 21 cra82.01
accused. In cross-examination conducted by accused nos. 4 and 7, he stated that he and complainant visited the house of the accused for 5 to 10 minutes and at that time they assured to the accused that they would pay the amount at the time of harvesting season. Suggestion was given to him that since the complainant was his brother-in-law, he deposed falsely, but same was denied by him. 24 On the afore said background of material evidence, learned counsel Shri Godsay appearing for accused no.1 i.e. appellant herein, canvassed that there was no valid marriage between deceased Sunanda and accused no.1 and deceased Sunanda was not legally wedded wife of accused no.1 and there is no positive evidence on record to prove and establish that valid marriage took place between accused no.1 and Sunanda, since their earlier spouses were alive and no divorce had taken place between them, and therefore, it is submitted that Section 498-A of the Indian Penal Code would not be applicable in the instant case and accused no.1, who is not legally wedded husband of deceased Sunanda cannot be arrayed under the ambit of Section 498-A of the Indian Penal Code, and hence, he cannot be found guilty thereunder and deserves to be acquitted therefrom.
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25 Learned counsel for the appellant also relied upon the observations made by this court at Bombay in judicial pronouncement in the case of Ranjana Gopalrao Thorat-vs-State of Maharashtra, reported at 2008 Bom.C.R. (Cri) 1 185, which are as follows :-
” 6 . …. It is thus clear that if at all there is any marriage between Baburao and the present applicant, it is void. If it is void, it is non est. In any case, therefore, second wife cannot assume a character as wife. It is no marriage in the eye of law. A person can become a relative only by blood or marriage and not otherwise. The word relative has been defined in the Chambers Dictionary ‘person who is related by blood or marriage’. The applicant cannot, therefore, be said to be related to Baburao either by blood or by marriage. Since she is not a relative, she does not fall within the scope of section 498-A of Indian Penal Code at all. She certainly deserves to be discharged as far as offence under section 498-A of Indian Penal Code is concerned. She is accordingly discharged as regards offence under section 498-A of the Indian Penal Code. As far as offence under section 306 of I.P.Code is concerned, that need not be considered at this stage since Mr.Mardikar, the learned counsel, does not desire to press that aspect here. Order accordingly. “
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26 Learned counsel for the appellant also further relied upon the observations made by this court at Bombay in judicial pronouncement in the case of Raghunath Shivram Damare -vs- State of Maharashtra, reported at 2009 Bom.C.R. (Cri) 1 254, which are as follows :-
” 6 The learned Sessions Judge has relied upon the decision of the Kerala High Court reported in 2005 Cri.L.J. 2925 (John Indiculla and anr.-vs-State of Kerala)2, to hold that the second wife is the relative of the husband. I respectfully disagree with the ratio of the Kerala High Court. Moreover, I am bound by the decision of this High Court. I find that in the instant case the deceased could not acquire status of the wife since the first marriage of the accused was still subsisting. The accused could not, therefore, be convicted under section 498-A of the Indian Penal Code.
. . . 10 There is, in fact, therefore no evidence of instigation or aiding the accused to commit suicide. The learned Sessions Judge fell in error in holding the accused guilty of offences under sections 498-A and 306 of the Indian Penal Code. If the accused cannot be held guilty of above two offences, there is no question of accused causing disappearance of evidence of any offence at all. He, therefore, needs to be acquitted of the offence under section 201 of the Indian Penal Code. “
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27 As regards the conviction and sentence inflicted upon the appellant, it is canvassed by the learned counsel for the appellant that the vital ingredients of Section 304B of the Indian Penal Code are absent and lacking in the present case and the learned counsel for the appellant also invited my attention to the term ‘dowry’, which means some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies and it is canvassed that such payments are not enveloped within the ambit of ‘dowry’. It is further canvassed that the term ‘dowry’ mentioned in Section 304B of the Indian Penal Code should be any property or valuable security given or agreed to be given in connection with marriage, as well as it is canvassed that the definition of ‘dowry’ in the Dowry Prohibition Act is that ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person at or before, or any time after the marriage, in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom Muslim Personal Law (Shariat) applies, and in the said context, it is canvassed by the learned counsel for the appellant that at the time of marriage, there was no agreement of payment of dowry amount or any other articles and even the 25 cra82.01
amounts of Rs.10,000/- and Rs.8,000/- allegedly given by the complainant to accused no.1 through victim Sunanda also cannot be construed as dowry amount. According to the leaned counsel for the appellant even the allegation regarding further demand of Rs. 20,000/- also cannot be construed as dowry amount, since same does not come under the ambit of term dowry, as it is not the valuable security given or agreed to be given in connection with the marriage. It is further canvassed by the learned counsel for the appellant that there is no close proximity between the alleged illtreatment meted out to victim Sunanda and there is no cogent and legal evidence adduced/produced by the prosecution that soon before the death of Sunanda she was subjected to cruelty or harassment by the accused, and hence, it is submitted that the prosecution has miserably failed to prove the charge under Section 304B of the Indian Penal Code against the accused and the appellant deserves to be acquitted thereof.
28 Learned counsel for the appellant further relied upon the observations made by this court at Nagpur in judicial pronouncement in the case of Jayawantabai w/o Satyadeo Sadafale-vs- State of Maharashtra, reported at 2008 All MR (Cri) 189, which are as follows :-
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” 8 It is thus clear that the dowry is any property given or agreed to be given before or at the time of marriage or after the marriage in connection with the marriage. Thus, what is necessary is that one party must have agreed to give it in connection with the marriage. If it was not agreed to be given in connection with the marriage, that may become unlawful demand at the most, but cannot be treated as a demand for dowry.
. … 11 . .
It is, therefore, very clear that there was no
illtreatment or beating etc. prior to her death. It is not the case of the prosecution that she was being mentally harassed. It must, therefore, be shown that the physical harassment was such that any person would have preferred to put an end to the life instead of bearing the physical harassment. The evidence does not show that when deceased had come to the
house of PW1 twice or thrice she was required to be taken to any physician for treatment of any injuries. This also negatives the theory of alleged incident of beating and harassment. “
29 Learned counsel for the appellant also relied upon the observations made by Hon’ble Supreme Court, after quoting the essential ingredients of Section 304-B of the Indian Penal Code and Section 2 of the Dowry Prohibition Act, in judicial pronouncement in 27 cra82.01
the case of Appasaheb and Anr. -vs- State of Maharashtra, reported at 2007 All MR (Cri) 859 (S.C.), which are as follows :- ” 9 . ….. In view of the afore said definition of the
word ‘dowry’ any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the 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. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India-vs-Garware Nylons Ltd. AIR 1996 SC
3509 and Chemicals and Fibres of India-vs-Union of India, AIR 1997 SC 558). 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. The evidence adduced by the prosecution does not, therefore, show 28 cra82.01
that any demand for ‘dowry’ as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredients of Section 304-B, IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.
30 Learned counsel for the appellant further relied upon the observations made by the Supreme Court in the judicial pronouncement in the case of Bhagwan Das-vs-Kartar Singh and others, reported at 2007 Cr. R. 2 314, which are as follows :- ” 8 The only allegation against the appellant was that they harassed the deceased Shobha because she did not bring adequate dowry. Hence, it is submitted by the learned counsel for the appellant that this amounted to abetment to suicide and hence was covered under Section 306 IPC, read with Section
107.
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 vs. State of Punjab and others, (2000) 5 29 cra82.01
SCC 207, Satvir Singh and others vs. State of Punjab and another, (2001) 8 SCC 633, Smt. Shanti and another vs. State of Haryana, AIR 1991 SC 1261.”
31 Learned counsel for the appellant further relied upon the observations made by Hon’ble Supreme Court, in judicial pronouncement in the case of Tirath Kumari and Anr.-vs-State of Haryana, reported at 2005 ALL MR (Cri) 3121 (S.C.), which are as follows :-
” 5 It is contended by Mr. Jaspal Singh, learned senior counsel appearing for the appellants that in the present case both the trial court and the High Court have committed an error in law as well as in fact for recording the conviction of the appellants under Section 304-B as no demand of dowry or illtreatment in regard to the demand of dowry has been established soon before her death. We have been taken through the evidence of P.W.4 Om Prakash, P.W.5 Sham Lal Datta, P.W.7 Raj Rani and
P.W.10 Baldev Raj on which reliance has been placed by both the trial court and the High Court for recording the convictions of the appellants. Going through the evidence threadbare, we do not find any evidence to show that soon before her death she was subjected to cruelty by the husband or in-laws in connection with a demand of dowry.
6 The aforesaid ingredients having not been established the appellants are entitled to the benefit of 30 cra82.01
doubt The conviction and sentence recorded by the
trial court and affirmed by the High Court are set aside. They are acquitted of all the charges. Accused No. 4 Tirath Kumari is on bail, her bail bond and surety shall stand discharged. Accused No. 1 Vimal Kumar is in custody, he shall be set at liberty forthwith if not required in connection with any other case. ” 32 Moreover, it is also submitted by learned counsel for the appellant that even Section 4 of the Dowry Prohibition Act will not be attracted, since the alleged demand of amount is not in connection with the marriage or the alleged demanded amount is not the amount which was agreed to be given to the accused at the time of marriage, and hence, it is submitted that there is no application of Section 4 of the Dowry Prohibition Act and conviction and sentence inflicted against the appellant herein thereunder is unsustainable and erroneous, and therefore, same deserves to be quashed and set aside acquitting accused no.1 therefrom.
33 Besides, it is submitted that the oral evidence adduced by the prosecution and the medical evidence as well as documentary evidence on record clearly spells out that victim Sunanda died by accidental burns and she did not succumb to the suicidal burns. According to the learned counsel for the appellant, victim Sunanda died due to accidental burns and burns sustained by her are not 31 cra82.01
suicidal burns, since the cause of death of victim given by PW3 Dr.Kavita Sontakke is, shock due to extensive burns (100%). 34 Alternatively, it was canvassed that as stated by PW3 Dr.Kavita, since Sunanda was pregnant for 4 to 4½ months, after gestation i.e. conception till the end of lactation, some physiological metabolic changes do take place in the body and due to above changes some psychic changes may also do take place in the pregnant lady, which may be the cause of death of Sunanda. Accordingly, it is canvassed that due to change in harmons for about 4 to 4½ months, the suicidal tendency developed in her body, which resulted in ending of her life by Sunanda by committal of suicide. 35 It was further canvassed by learned counsel for the appellant that there is no legal evidence before the court that in the instant case, matrimonial cruelty to deceased Sunanda took place soon before committal of suicidal by Sunanda on 14.7.1995, and accordingly, there is no close proximity between the matrimonial cruelty and alleged suicide committed by Sunanda, and therefore, it is canvassed that there is no nexus between the death of Sunanda and alleged cruelty, and therefore also, present case does not come under the purview of Section 498-A and 306 of the Indian Penal Code. It is further canvassed that except alleged demand, there is no 32 cra82.01
cogent evidence regarding the alleged harassment, to which Sunanda was subjected by the accused. Moreover, it is further submitted that amount allegedly demanded cannot be construed as dowry, since there was no promise at the time of marriage or in connection with marriage. Moreover, it is further canvassed that no specific dates, particulars or instances have been given by the prosecution in respect of the alleged cruelty, to which deceased Sunanda was allegedly subjected by accused, and hence, in the absence of such particulars, it cannot be construed that accused no. 1 subjected deceased Sunanda to cruelty and further it cannot be held that accused no.1 instigated and abetted deceased Sunanda for committal of suicide, and as such, present case does not come under the purview of Sections 498-A and 306 of the Indian Penal Code.
36 In support of his argument, learned counsel for the appellant relied upon the observations made by this court in judicial pronouncement in the case of Radhakisan s/o Kachru Khandagale and anr.-vs-State of Maharashtra, reported at 2001 ALL MR (Cri) 1413, which are as follows :-
” 22. Upon perusal of the judgments of the Hon’ble Supreme Court cited supra, it is required to be borne in mind that in cases of alleged abetment of 33 cra82.01
suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegations of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Sec. 306 of I.P. Code is not sustainable. Therefore, what is required is that, unless there is any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide conviction U/Sec. 306 is not sustainable. ” 37 Learned counsel for the appellant also relied upon the observations made by Hon’ble Supreme Court, in judicial pronouncement in the case of Hazarilal-vs-State of M.P., reported at 2010 (1) SCC (Cri) 1247, which are as follows :- ” 8 The evidence of P.Ws. 1 and 2 show that they spoke about the dowry to be the basis for suicide. The High Court came to the conclusion that because the deceased had given birth to a child there was no reason for her to commit suicide. The evidence of the parent’s of the deceased P.Ws. 1 and 2 was only relatable to dowry. The High Court held that there was no question of demand of dowry, and in fact, appellant was financing the father of the deceased P.W.1. There being no other material to show as to how the deceased was being harassed or subjected to cruelty, the conclusion of the High Court that because the deceased committed suicide there must be some harassment and cruelty is insupportable and 34 cra82.01
indefensible. There was no material to substantiate this conclusion. Merely on surmises and conjectures the conviction could not have recorded. There is a vast difference between “could have been”, “must have been” and “has been”. In the absence of any material, the case falls to the first category. In such a case conviction is impermissible. “
38 Accordingly, the learned counsel for appellant urged that the convictions and sentences inflicted upon the appellant are erroneous and unsustainable, and therefore, same be quashed and set aside by allowing the present appeal.
39 Learned Additional Public Prosecutor appearing on behalf of the respondent/State, countered the said arguments vehemently and submitted that the argument canvassed by the learned counsel for the appellant that deceased Sunanda was not legally wedded wife of accused no.1, and therefore, provisions of Sections 498-A of the Indian Penal Code will not be applicable in the instant case, cannot be said to be proper and legal argument, since the said Section refers to the word, “woman” and not to, “wife”, and therefore, it is canvassed that by the said Section, protection to married woman was contemplated and not to the legally wedded wife. Moreover, it is also canvassed by learned Additional Public Prosecutor that it has clearly come in the evidence that marriage by sulagna procedure 35 cra82.01
took place between deceased Sunanda and accused no.1, which is one of the approved forms of marriage, and therefore also, it is submitted that there is no substance in the argument canvassed by the learned counsel for the appellant in that respect, and hence, the conviction inflicted upon the appellant under Sections 498-A of the Indian Penal Code has no legal bar. Moreover, it is further submitted that even till the death of Sunanda, her marriage with accused no.1 was not disputed by the accused persons, and such attempt is being made after her death to escape from legal punishment under Sections 498-A of the Indian Penal Code.
40 Learned Additional Public Prosecutor further canvassed that death of deceased Sunanda took place on 14.7.1995 at about 2.45 a.m. in the house of the accused persons due to sustaining 100 per cent burns, and therefore, said death occurred under the special knowledge of the accused persons, since it is the custodial death in the custody of the accused persons, and hence, it was incumbent upon the accused persons to explain the same invoking the provisions of Section 106 of the Indian Evidence Act, but the accused persons have miserably failed to give any plausible and convincing explanation therefor, and hence, learned Trial Court has rightly convicted and sentenced accused no.1 and no interference therein is called for.
36 cra82.01
41 Learned Additional Public Prosecutor further canvassed that considering the position that the death of deceased Sunanda took place within the span of 8 to 9 months from the marriage and also considering the evidence adduced and produced by the prosecution on record, as well as considering the other circumstances of the case, presumption under Section 113A of the Indian Evidence Act deserves to be raised against accused no.1 and it is required to be held that accused no.1 herein abetted to the suicide committed by victim Sunanda due to illtreatment and harassment sustained by her at the hands of accused no.1. 42 It is further submitted that on 10.7.1995 i.e. soon before the incident of committal of suicide by Sunanda on 14.7.1995, the deceased Sunanda was subjected to cruelty by the accused persons, and as disclosed by Sunanda, she was subjected to cruelty by the accused persons on 10.7.1995 due to non-fulfillment of unlawful demand of Rs.20,000/- and she was threatened that her life would be in danger if the said demand was not complied with by her within two days and she was not sent along with her brother on 11.7.1995 i.e. soon before the incident of committal of suicide by Sunanda on 14.7.1995. It is amply clear that there is incriminating evidence against accused no.1, and therefore, learned Trial Court 37 cra82.01
rightly convicted him therefor and no interference therein is called for in the appellate jurisdiction. Accordingly, learned Additional Public Prosecutor supported the impugned judgment and order. 43 It is canvassed that according to the medical evidence, deceased Sunanda met with the suicidal death and the prosecution has established nexus between the suicidal death of victim Sunanda and illtreatment meted out to her by accused no.1, and hence, it is canvassed that there is no application of judicial pronouncements cited by the learned counsel for the appellant and the prosecution has proved and established the charges levelled against accused no. 1 under Sections 304B, 498-A, and 306 of the Indian Penal Code, and the learned Trial Judge has rightly convicted him therefor and there is no glaring defect therein, and hence, no interference is called for therein.
44 Besides, it is further pointed out by learned Additional Public Prosecutor that admittedly victim was pregnant, but still she committed suicide, which itself speaks for the degree of cruelty, to which Sunanda was subjected to by accused no.1, and hence, it is submitted that the said aspect cannot be ignored and present appeal deserves to be dismissed.
38 cra82.01
45 I have perused the oral, the documentary and the medical evidence adduced/produced by the prosecution and also considered the submissions advanced by the learned counsel for the parties anxiously, as well as perused the judicial pronouncements cited by the learned counsel for the appellant, and at the out set, it is to be borne in mind that accused no.1 was convicted and sentenced for the offences punishable under Sections 304B, 306 and 498-A of the Indian Penal Code and also for the offence punishable under Section 4 of the Dowry Prohibition Act. I shall deal with the conviction and sentences inflicted upon accused no.1 as per the said Sections one by one.
46 As regards the conviction and sentence inflicted upon accused no.1 for the offence punishable under Section 304B of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, it is necessary to note the ingredients of Section 304B of the Indian Penal Code. As enunciated by Apex Court in the case of Kans Raj -vs-State of Punjab, reported at AIR 2000 SC 2324, in order to seek conviction under Section 304B of the Indian Penal Code against a person for the offence of dowry death, the prosecution is obliged to prove that :-
(a) the death of woman was caused by burns 39 cra82.01
or bodily injury or had occurred otherwise than under normal circumstances;
(b) such death should have occurred within 7 years of her marriage;
(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
(d) such cruelty or harassment should be for or in connection with the demand of dowry; and
(e) to such cruelty or harassment, the deceased should have been subjected soon before her death,
47 Keeping in mind the said ingredients of Section 304B of the Indian Penal Code and coming to the term, ‘dowry’, which means that some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of ‘dowry’. Hence, the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with marriage, as clarified by Apex Court in the case of Satvir Singh-vs- State of Punjab, reported at AIR 2001 SC 2828.
48 Moreover, definition of ‘dowry’ given in the Dowry 40 cra82.01
Prohibition Act, 1961 is that :
‘Dowry’ means any property or valuable security given or agreed to be given either directly or indirectly, (a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person.
at or before, or any time after the marriage, in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom Muslim Personal Law (Shariat) applies.
Explanation I :- Omitted by Act 63 of 1984, S.2
(w.e.f.) 2.10.1985.
Explanation II :- The expression, ‘valuable security’ has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).
49 Moreover, what is the periphery of word, ‘dowry’ was considered by the Hon’ble Supreme Court in the decision in the case of Pawan Kumar-vs-State of Haryana, reported in (1998) 3 SCC 309 and in the teeth of the extended definition and meaning of the term as brought about by the Dowry Prohibition (Amendment) Act, 41 cra82.01
1986 with effect from 19.11.1986, the earlier meaning confining and limiting the same to the time at or before the marriage got enlarged and extended even to the period after the marriage and that there be no need to also show any agreement for the payment of such dowry to make it punishable as an offence. (Vidhya Devi-vs- State of Haryana, AIR 2004 SC 1757).
50 Applying the afore said parameters in the instant case, admittedly the marriage of Sunanda was performed with accused no. 1 prior to about 9 months of the date of incident and she went to reside to her matrimonial home in Ayodhya Nagar, Jalgaon and the said marriage was performed by providing Rs.45,000/- cash and 50 grams gold by the complainant. It was also admitted that at the time of marriage there was no agreement of payment of dowry amount or any other articles, but thereafter the demand of cash amount of Rs. 10,000/- as well as Rs.8,000/- were allegedly made by the accused persons. PW1 Keshav and PW4 Subhadra categorically stated in their respective depositions that deceased Sunanda disclosed before them that the accused persons used to demand cash amount from her to be brought from her parents for construction of house at Ayodhya Nagar, Jalgaon and used to harass and illtreat her due to non-fulfillment thereof and to avoid the said illtreatment, PW1 Keshav complainant paid amount of Rs. 10,000/- after three months of 42 cra82.01
marriage, as well as his brother Bhagwat paid amount of Rs.8,000/- to victim Sunanda totaling Rs.18,000/-.
51 However, they have stated in their respective cross- examinations that they paid the said amount by way of help, and hence, it appears that the said amount was paid voluntarily or without any demand by the accused. It has also come in evidence of PW1 Keshav that after the lapse of about 2 and 2½ months, the accused persons, more particularly accused no.1 demanded further amount of Rs.20,000/- from deceased Sunanda and threatened her that if the said amount was not paid, victim Sunanda would be murdered by them. However, it is material to note that none of the prosecution witnesses stated in their respective depositions that the said demand of amount was in connection with the marriage or the alleged demanded amount was agreed to be given to the accused at the time of the marriage.
52 Accordingly, it has nowhere come in evidence on record that alleged demanded amount by accused no. 1 was the property or valuable security, and was agreed to be given in connection with the marriage. Hence, the alleged demand of Rs.20,000/- by the accused, more particularly accused no.1, cannot be construed as dowry and alleged cruelty or harassment, to which deceased 43 cra82.01
Sunanda was subjected/threatened, cannot be construed as such cruelty or harassment in connection with the demand of dowry, and therefore, the said vital ingredient of Section 304B of the Indian Penal Code is missing in the present case. Hence, learned Trial Judge committed patent error while convicting and sentencing accused no.1 for the offence punishable under Section 304B of the Indian Penal Code and also for the offence punishable under Section 4 of the Dowry Prohibition Act, and hence, same deserves to be quashed and set aside. Therefore, I am inclined to accept the arguments advanced by the learned counsel for the appellant in that respect based upon the judicial pronouncements (cited supra) by him.
53 As regards the conviction and sentence imposed upon accused no.1 by the Trial Court for the offences punishable under Sections 306 and 498-A of the Indian Penal Code, after considering the oral, documentary and medical evidence on record, adduced/produced by the prosecution and also considering the reasoning adopted by the Trial Court therefor, as well as considering the judicial pronouncements cited in that respect, there does not appear to be any error in the reasoning adopted and findings given in that respect by the learned Trial Judge and submissions made by learned advocate for the appellant in that respect do not bear any 44 cra82.01
substance and I am not inclined to accept the same. 54 Moreover, the observations made by the learned Trial Court in respect of death of Sunanda as a suicidal death and not accidental death, since occurred during wee hours i.e. at 2.45 a.m. by pouring kerosene on her person and setting her ablazed, also cannot be faulted with and the argument canvassed by the learned counsel for the appellant in that respect that deceased Sunanda sustained accidental death, do not bear substance and same cannot be accepted.
55 Besides, the argument advanced by the learned counsel for the appellant that deceased Sunanda was not the legally wedded wife of accused no.1 and there is no positive evidence on record to prove and establish that valid marriage took place between accused no.1 and deceased Sunanda, since their earlier spouses were alive and no divorce had taken place between them, and therefore, provision of Section 498A of the Indian Penal Code will not be applicable to accused no.1 and he cannot be found guilty thereunder, also bears no substance, since said Section 498-A of the Indian Penal Code refers to word ‘woman’ and not to ‘wife’ and by the said Section protection was contemplated to married woman and not to the legally wedded wife. Moreover, it has also clearly come in 45 cra82.01
evidence that marriage of accused no.1 and Sunanda took place by Sulagna procedure, and accordingly, there is no substance in the said argument canvassed by learned counsel for the appellant and there is no flaw in the reasoning given by the Trial Court in discarding the said argument.
56 Moreover, it also cannot be ignored that accused no.1 and Sunanda were residing at Ayodhya Nagar, Jalgaon and other accused persons were residing separately and death of Sunanda took place on 14.7.1995 at about 2.45 a.m. in the house of accused no. 1 due to sustaining 100 per cent burns in suspicious manner. Moreover, it also cannot be overlooked that death of deceased Sunanda took place between 8 to 9 months from her marriage and also considering the evidence adduced/produced by the prosecution on record, as well as considering the other circumstances of the case, the presumption raised by the Trial Court under Section 113A of the Indian Evidence Act against accused no.1 also cannot be faulted with, and it is required to be held that accused no.1 herein abetted to the committal of suicide by victim Sunanda due to harassment and illtreatment sustained by her at the hands of accused no.1 and pertinently accused no.1 has failed to rebut the said presumption, as rightly observed by the learned Trial Judge. 46 cra82.01
57 Moreover, it is also amply clear that the prosecution has succeeded to establish the nexus between the suicidal death of victim Sunanda and illtreatment meted out to her by accused no.1, and therefore, Trial Court has rightly convicted and sentenced accused no.1 for the offence punishable under Sections 306 and 498-A of the Indian Penal Code and no interference therein is called for in the appellate jurisdiction.
58 Besides, it cannot be lost sight of the aspect that victim Sunanda was pregnant for 4 to 4½ months, but still she committed suicide, which speaks itself for the degree of cruelty to which she was subjected by accused no.1 and there cannot be any dispute that cumulative effect of the afore said instances led to the position that there is cogent, legal and incriminating evidence against accused no. 1 in respect of the offences punishable under Section 306 and 498-A of the Indian Penal Code, and hence, Trial Court has rightly convicted and sentenced accused no.1 thereunder, and no interference therein is called for, and consequently, present appeal fails to that extent.
59 In the result, present appeal is allowed partly and the conviction and sentence inflicted upon accused no.1 i.e. appellant herein for the offence punishable under Section 304B of the Indian 47 cra82.01
Penal Code and for the offence punishable under Section 4 of the Dowry Prohibition Act stands quashed and set aside and accused no.1 is acquitted thereof and fine amount, if any paid by the appellant in that respect, be refunded to him.
However, present appeal stands dismissed to the extent of conviction and sentence inflicted upon accused no.1 i.e. appellant herein for the offence punishable under Sections 306 and 498-A of the Indian Penal Code and said conviction and sentence, rendered by the learned Trial Court to that extent stands maintained and confirmed. The bail bond of accused no.1 stands cancelled and he is directed to surrender before the Trial Court within the period of two weeks to undergo substantive sentences for the offences punishable under Sections 306 and 498-A of the Indian Penal Code, according to the impugned judgment and order, dated 16.2.2001, and if the accused no.1 i.e. appellant herein fails to surrender within stipulated period as afore said, the Trial Court to take suitable steps, in accordance with law.
Copy of the present judgment be sent to Trial Court forthwith.
(SHRIHARI P. DAVARE),
JUDGE.
