Bombay High Court
Tulshiram S/O Keshaorao Kotrange vs State Of Maharashtra,Thr.P.Stn.Aheri on 1 August, 2017
Author: V.M. Deshpande
Bench: V.M. Deshpande
Judgment
apeal9.03 4
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.9 OF 2003
Tulshiram s/o Keshaorao Kotrange,
Occupation Service, Aged about 34
Years, R/o Navegaon, Taluka Gadchiroli,
District Gadchiroli. ..... Appellant.
:: VERSUS ::
State of Maharashtra,
Through Police Station, Aheri,
Taluka Aheri, District Gadchiroli. ..... Respondent.
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Shri V.N. Morande, Counsel for the appellant.
Mrs. M.H. Deshmukh, Addl.P.P. for the respondent/State.
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CORAM : V.M. DESHPANDE, J.
DATE : AUGUST 1, 2017.
ORAL JUDGMENT
1. The appellant, who was convicted for the offences punishable under Sections 304-B and 498-A of the Indian Penal Code, 1860 by learned Additional Sessions Judge at .....2/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 2 Gadchiroli in Sessions Case No.38 of 1995 on 18.12.2002, is before this Court in this appeal. The sentence, that is awarded to the appellant by the impugned judgment, is rigorous imprisonment for 7 years for the offence punishable under Section 304-B of the Indian Penal Code, 1860 and rigorous imprisonment for 1 year for the offence punishable under Section 498-A of the Indian Penal Code and payment of fine of Rs.1,000/- and in default of payment of fine amount rigorous imprisonment for 2 months.
2. The prosecution case is in a narrow compass and it is stated as under:
On 13.9.1992, PW3 Parshuram Narayan Kawde lodged his report (Exhibit 25) with Aheri Police Station. It is asserted in the report that marriage of his daughter Chaya (deceased) was performed with appellant on 6.5.1992. She was .....3/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 3 in cohabitation with the appellant. When once first informant Parshuram had been to the place of appellant to fetch his daughter, appellant refused to send her to her parental house. Not only that, in his presence she was assaulted by belt. This incident, according to first informant Parshuram, occurred at the time of 'Akhadi Purnima.' The first information report further states that on the occasion of festival of 'Pola', first informant Parshuram sent his son Digambar to fetch Chaya. Chaya came to her parental house and had stayed there for about 8 days. During her stay at parental house, first informant Parshuram received a letter dated 5.9.1992 from appellant from which it has been revealed that since Chaya has gone for festival of 'Pola', he will not allow her to return to house and he will not provide her food and water. The first information report further states that on reading the said letter, they were .....4/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 4 intending to drop Chaya at her matrimonial house but since it was stated in the letter that on 7.9.1992 the appellant was to visit his in-laws house, they made wait for 2 days. However, the appellant failed to reach to house of first informant Parshuram. Thereafter, at the request of Chaya, Digambar took Chaya on 9.9.1992 to the house of appellant. It is also stated in the first information report that, that time the appellant did not allow Digambar to stay at his house. It is also stated in the first information report that there used to be a demand of Rs.25,000/- from the appellant and was subjected to assault and these facts were narrated by Chaya to her mother. It is also stated that the appellant poured kerosene on Chaya.
3. PW5 Police Sub Inspector Sunil Digambar Nandwalkar was informed about burning incident and, therefore, he went to the hospital at Aheri. There he got a .....5/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 5 knowledge that Chaya is dead. Therefore, he came to the police station and registered A.D. vide No.20 of 1992. He prepared spot panchanama Exhibit 20. Thereafter, in view of lodging of report Exhibit 25 by first informant Parshuram, an offence was registered against the appellant vide Crime No.95 of 1992 for the offences punishable under Sections 306 and 498-A of the Indian Penal Code, 1860. After completion of usual investigation, challan was presented.
4. The offence was exclusively triable by the sessions. Therefore, the case was committed to the Court of Sessions and was registered as Sessions Case No.38 of 1995.
5. Learned Additional Sessions Judge at Gadchiroli framed a charge against the appellant for the offences punishable under Sections 304-B and 498-A of the Indian Penal Code, 1860. The appellant denied the charge and .....6/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 6 claimed for his trial. The prosecution has examined in all 5 witnesses to prove the guilt of the appellant. Learned Judge of the Court below, after appreciation of evidences, found that the prosecution was successful in proving the guilt of the appellant.
Hence, this appeal.
6. There is no dispute about the date of marriage which was performed on 6.5.1992. It is also not in dispute that incident of burning occurred on 13.9.1992 and she died within a span of 4 months of her marriage.
7. Postmortem report is at Exhibit 16. The same is duly proved by PW1 Dr. Vishnu Rambhau Tidke. Deceased Chaya received burn injuries to the extent of 100%. Cause of death was "Shock Due to Extensive Burns."
8. Section 304-B of the Indian Penal Code, 1860 deals .....7/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 7 with the dowry death and the same is as under:
"(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub- section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but .....8/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 8 which may extend to imprisonment for life.]"
In order to attract the said provisions, the prosecution is obliged to prove basic ingredients of offence those are, (i) death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances;
(ii) such death should have occurred within a period of 7 years of her marriage; (iii) she must have been subjected to cruelty or harassment by her husband or by any relative of her husband and, (iv) such cruelty or harassment should be for or in connection with the demand of dowry.
9. To attract the provisions of Section 304-B of the Indian Penal Code, 1860, by catena of decisions the Honourable Apex and this Court have ruled that main ingredient of the offence, which is required to be established, is that, "soon before her death" the deceased was subjected to .....9/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 9 cruelty or harassment for or in connection with the demand of dowry.
In the backdrop of above principles, let us scrutinize evidences as are brought on record by the prosecution.
10. In order to prove harassment and cruelty, though the prosecution has examined 3 witnesses, viz. PW2 Sheshrao Laxmayya Uplapwar, landowner in whose house the couple used to reside; PW3 Parshuram Narayan Kawde, father of deceased Chaya; and PW4 Vacchalabai Parshuram Kawde, mother of deceased, PW2 Sheshrao Laxmayya Uplapwar has not supported the prosecution. Now, left only with the evidences of PW3 Parshuram and PW4 Vacchalabai, father and mother of deceased Chaya close relatives of deceased Chaya being her parents. Merely because they are close .....10/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 10 relatives or interested witnesses, that by itself is not sufficient to discard their testimonies. If their evidences, otherwise, inspire confidence, it can be used irrespective of the fact that it is the testimony of the interested witnesses.
11. PW3 first informant Parshuram is not a rustic person. At the relevant time, he was discharging his duties as a head constable. So also, the appellant was working as a constable in the constabulary at Aheri. The evidence of PW3 first informant Parshuram discloses that when he had been to the house of the appellant on the occasion of festival of 'Akhadi Purnima' to fetch his daughter Chaya, the appellant refused to send her to her parental house on the ground of demand of money. It is also the evidence that, that time Chaya was beaten by belt by the appellant. The evidence of PW3 first informant Parshuram further states that Parshuram pleaded to appellant that he may not send Chaya along with .....11/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 11 him but should not beat her.
Insofar as this 'Akhadi' incident is concerned, neither in the first information report nor from the witness box this prosecution witness is stating as to what was the amount that was demanded by the appellant. Further, this incident of beating was not reported by PW3 first informant Parshuram either to the police station or to the higher authorities of the appellant. PW3 first informant Parshuram, at the relevant time, was Constable and not a rustic person. When in his presence his daughter was mercilessly beaten by the appellant by beans of belt, it appears rather unusual of not reporting the matter to the police or to the higher-ups. Not reporting the matter of the said incident, raises a doubt about the said incident itself. Further, during the course of cross-examination, this prosecution witness has admitted that when he reached to the house of the appellant, deceased .....12/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 12 Chaya was having slight temperature and when he enquired as to whether he can take Chaya along with him, he was not permitted. Thus, at the time of 'Akhadi' when PW3 first informant Parshuram had been to the house of the appellant to fetch his daughter, on the said day if Chaya was having slight temperature, on that count if permission was not granted, it cannot be termed as any objectionable act on the part of the appellant.
12. Another incident, that occurred when Chaya had been to the house of PW3 first informant Parshuram, is on the festival of 'Pola.' As per the version of PW3 first informant Parshuram, his daughter Chaya stayed there for 4 to 5 days. However, as per PW4 Vacchalabai, her stay was for 8 days. Nothing turns on this. It is clear that for and on account of 'Pola', Chaya had been to her parental house. What is stated in the evidence that, that time deceased Chaya informed PW3 .....13/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 13 first informant Parshuram that the appellant is demanding Rs.25,000/-. It is further the evidence of PW3 Parshuram that, that time he disclosed that as to why the appellant is demanding money when nothing was demanded by him at the time of marriage. His evidence further shows that, thereafter, the appellant had been to the house of PW3 first informant Parshuram to fetch his wife. It is not the evidence of PW3 Parshuram that when appellant was at Parshuram's house, the appellant made any demand to Parshuram. PW4 Vacchalabai corroborates that Chaya disclosed that the appellant was demanding Rs.25,000/-. As per the version of PW4 Vacchalabai, except disclosing this aspect, nothing was stated to her. It is not a claim of PW3 Parshuram or PW4 Vacchalabai that Chaya disclosed to them that in respect of any demand Chaya was subjected to physical or mental cruelty.
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13. Though it is claimed in the first information report so also in the evidence of PW3 Parshuram that after the festival of 'Pola', PW3 Parshuram received a letter from the appellant wherein it was disclosed that Chaya should not come to his house and if she is coming to his house, she will not be provided food or water. In spite of receipt of such letter, for the reasons best known to PW3 Parshuram, the head constable, the same was not produced before the police.
On 9.9.1992, as per the evidence of PW3 Parshuram, Chaya was sent along with Digambar, her brother. At that time, PW3 Parshuram instructed Digambar to have a halt for one day in the house of the appellant and observe the situation. Though Digambar went to the house of the appellant, he was not permitted by the appellant to stay, is the claim of PW3 first informant Parshuram, however Digambar who would have been the best person to disclose .....15/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 15 about the said aspect is not examined by the prosecution.
14. Insofar as evidence of PW4 Vacchalabai is concerned, she states that after the marriage, when Chaya was sent for the first time to the house of the appellant, she was accompanied by Bebi, her younger sister and one lady by name Bagade at Navegaon, the parental house of the appellant. As per the evidence of PW4 Vacchalabai, after returning, Bebi disclosed to PW4 Vacchalabai that at the time of ceremony of 'Satyanarayan Puja' when Chaya tried to touch feet of her mother-in-law, mother-in-law refused to take bow from Chaya and uttered "ika< &;k ik;kph." As per the claim of PW4 Vacchalabai, even Chaya also narrated the said incident to her. The evidence, in this behalf of PW4 Vacchalabai, is a hearsay evidence. Bebi, in whose presence such incident has occurred, is not examined by the prosecution. Insofar as .....16/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 16 disclosure by Chaya, PW3 Parshuram is not corroborating PW4 Vacchalabai in that behalf.
15. From the quality of evidences, as adduced, in my view, the prosecution evidences are too short by which the Court could reach to the conclusion that there was harassment to such extent that fed up with such harassment, deceased Chaya has taken an extreme step of her life. Merely because the incident has occurred within a span of 7 years, that by itself is not sufficient to draw a presumption unless the prosecution proves that there was a demand and there was harassment at the hands of the appellant.
16. Exhibit 27 is a letter given by the appellant. The same is undated document and also not unsigned. Even reading of this particular letter though states about some dispute, it also reflects mental attitude on the part of deceased .....17/-
::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:29:22 ::: Judgment apeal9.03 4 17 Chaya.
17. To secure conviction, the prosecution must prove its case beyond reasonable doubt. In my view, looking to the quality of evidences, as are available on record, there is no hesitation in my mind to record a finding that the prosecution has utterly failed to prove its case beyond reasonable doubt. Therefore, the conviction awarded, against the appellant, in my view, cannot be sustained. Hence, I pass the following order:
ORDER
i) The criminal appeal is allowed and disposed of.
ii) Judgment and order passed by learned Additional Sessions Judge at Gadchiroli in Sessions Case No.38 of 1995 on 18.12.2002 is hereby .....18/-
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Judgment apeal9.03 4 18 quashed and set aside.
iii) The appellant is acquitted of the offences punishable under Sections 304-B and 498-A of the Indian Penal Code, 1860.
iv) Bail Bonds of the appellant stand cancelled.
JUDGE !! BRW !! ...../-
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