Bombay High Court
Vaijinath Baliram Avhad & Ors vs State Of Maha on 26 April, 2018
Author: S.S. Shinde
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.50 OF 2003
1) Vaijinath s/o Baliram Avhad,
Age-22 years, Occu:Agril.,
2) Sow. Gayabai w/o Baliram Avhad,
Age-55 years, Occu:Household,
Both R/o-Daithana,
Tq. & Dist-Parbhani
...APPELLANTS
VERSUS
The State of Maharashtras
...RESPONDENTS
...
Mr.S.J. Salunke Advocate for Appellants.
Mr.S.J. Salgare, A.P.P. for Respondent.
...
WITH
CRIMINAL APPEAL NO.326 OF 2003
The State of Maharashtra,
(Through, Police Station Daithana
Dist-Parbhani
...APPELLANT
VERSUS
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1) Baliram Mahadu Avhad,
Age-65 years, Occu:Agril.,
R/o-Dasithana, Tq. & Dist-Parbhani,
2) Bhagwan Baliram Avhad,
Age-27 years, Occu:Agril.,
R/o-As Above,
3) Meerabai Bhagwan Avhad,
Age-22 years, Occu:Household,
R/o-As Above.
...RESPONDENTS
...
Mr. S.J. Salgare, A.P.P. for Appellant.
Mr.A.S. Deshmukh Advocate for Respondent
Nos.1 to 3 (Absent).
...
WITH
CRIMINAL APPEAL NO.329 OF 2003
The State of Maharashtra,
(Through, Police Station Daithana
Dist-Parbhani
...APPELLANT
VERSUS
1) Vaijnath s/o Baliram Avhad,
Age-22 years, Occu:Agril.,
R/o-Daithana, Tq. & Dist-Parbhani,
2) Sow. Gayabai w/o Baliram Avhad,
Age-55 years, Occu:Agril.,
R/o-As Above
...RESPONDENTS
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...
Mr. S.J. Salgare, A.P.P. for Appellant.
Mr.A.S. Deshmukh Advocate for Respondent
Nos.1 and 2 (Absent).
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 19TH APRIL, 2018.
DATE OF PRONOUNCING JUDGMENT: 26TH APRIL, 2018.
JUDGMENT [PER S.S. SHINDE, J.]:
1. As all these three Criminal Appeals are
arising out of one and the same Judgment and order
passed by the trial Court, all these Appeals are
being decided by this common Judgment.
2. In Sessions Trial No.121 of 2001 there
were in all five accused, namely, accused No.1-
Baliram s/o Mahadu Avhad, accused No.2- Vaijinath
s/o Baliram Avhad, accused No.3 - Bhagwan s/o
Baliram Avhad, accused No.4 - Sow. Gayabai w/o
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Baliram Avhad and accused No.5 - Meerabai w/o
Bhagwan Avhad.
3. By Judgment and Order dated 7th January,
2003 in Sessions Trial No.121 of 2001, 4th
Additional Sessions Judge, Parbhani convicted
accused No.2 - Vaijinath Avhad and accused No.4
Gayabai Avhad for the offence punishable under
Section 498-A and 304-B of the Indian Penal Code
(for short "I.P. Code"). For the offence under
Section 498-A of the I.P. Code, accused No.2-
Vaijinath is sentenced to suffer rigorous
imprisonment for one year and to pay fine of
Rs.300/-, in default, to suffer rigorous
imprisonment for one month. For the offence under
Section 304-B of the I.P. Code accused No.2 -
Vaijinath is sentenced to suffer rigorous
imprisonment for seven years. For the offence
under Section 498-A read with 34 of the I.P. Code,
accused No.4- Gayabai is sentenced to suffer
simple imprisonment for three months and to pay
fine of Rs.100/-, in default, to suffer simple
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imprisonment for fifteen days. For the offence
punishable under Section 304-B read with 34 of the
I.P. Code, accused No.4 Gayabai is sentenced to
suffer rigorous imprisonment for seven years. It
is directed that both the sentences shall run
concurrently. The trial Court acquitted accused
Nos.2 Vaijinath and accused No.4 Gayabai for the
offence punishable under Section 306 read with 34
of the I.P. Code. The trial Court acquitted
accused No.1 - Baliram Avhad, accused No.3 -
Bhagwan and accused No.5- Meerabai for the offence
punishable under Section 498-A, 306 and 304-B read
with 34 of the I.P. Code.
4. Criminal Appeal No.50 of 2003 is filed by
original accused No.2- Vaijinath and accused No.4-
Gayabai, challenging their conviction and sentence
for the offence punishable under Sections 498-A
and 304-B read with 34 of the I.P. Code.
5. Criminal Appeal No.326 of 2003 is filed
by the State challenging the acquittal of original
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accused No.1 - Baliram Avhad, accused No.3-
Bhagwan Avhad and accused No.5- Meerabai Avhad for
the offence punishable under Section 498-A, 304
and 306 read with 34 of the I.P. Code.
6. Criminal Appeal No.329 of 2003 is filed
by the State for enhancement of the sentence
awarded by the trial Court to original accused
No.2 - Vaijinath Avhad and accused No.4 - Gayabai
Avhad.
7. The prosecution case, in brief, is as
under:
A) Ashamati was married with accused No.2 -
Vaijinath about two years prior to her death which
occurred on 29th April, 2001. Accused No.1 -
Baliram is father, accused No.3- Bhagwan is the
brother and accused No.4 - Gayabai is the mother
of accused No.2 -Vaijinath. Accused No.5 -
Meerabai is the wife of accused No.3 Bhagwan.
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B) At the time of marriage, parents of
Ashamati had agreed to pay an amount of
Rs.20,000/- and a golden ring weighing 5 grams
towards dowry. Parents of Ashamati paid
Rs.10,000/- and golden ring weighing 5 grams at
the time of marriage. They had promised to pay
balance dowry amount of Rs.10,000/- subsequently.
C) About one month after marriage accused
persons started subjecting Ashamati to cruel
treatment on account of balance dowry amount of
Rs.10,000/-. Whenever Ashamati was visiting her
parents house, she used to inform about cruel
treatment at the hands of accused to her family
members. The father and brother of Ashamati had
attempted to convince accused persons. As there
was no improvement in the behaviour of accused,
Ashamati stayed with her parents for about 4 to 5
months. Thereafter Pandharinath, brother of
deceased Ashamati, Balasaheb Wamanrao, maternal
uncle of Ashamati alongwith some other persons,
had been to house of accused. Pandharinath and
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others requested accused persons to maintain
Ashamati properly with a promise to pay balance
dowry amount at the earliest. Accused No.4 Gayabai
gave threat that in case of failure to pay balance
dowry amount, Pandharinath and his family members
could not see Ashamati.
D) Subsequently, on 28th March, 2001, on
account of marriage of younger brother, Ashamati
had been to her parental house. On that occasion
also she informed about cruel treatment at the
hands of accused persons. Soon after marriage,
Pandharinath had gone to the house of accused
alongwith Ashamati. None of the accused had
attended the marriage, A table fan of "Cinny" make
was given to accused No.2 Vaijinath by way of
traditional present. All accused demanded balance
amount of dowry and accused No.4 Gayabai gave
threat of causing death of Ashamati on failure to
pay balance dowry amount of Rs.10,000/-.
E) On 21st April, 2001 Pandharinath, brother
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of Ashamati, had gone to Pokharni. All accused
persons and Ashamati were found in the temple at
Pokharni. Accused persons had arranged "Abhishek"
to Lord "Narsinha" and hosted meals for about 500
to 1000 people from village Pokharni. Pandharinath
had attempted to talk with Ashamati, but accused
persons had not permitted Ashamati to talk with
him.
F) On 29th April, 2001, Pandharinath and his
family members received a message from one Ananta
Manjulnath, that Ashamati was missing from the
house of accused since early morning. Immediately,
Pandharinath and others went to village Daithana.
Inspite of extensive search, Ashamati was not
found. At about 4.30 p.m., Pandharinath returned
back to his village Narsapur.
G) On 30th April, 2001, one Limbaji Rambhau
informed Pandharinath and his family members that
the dead body of Ashamati was found floating in
the well situate in the land of Eknath Sopan
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Avhad. At about 4.00 p.m. after receiving this
message, Pandharinath and other family members
went to Daithana. The dead body of Ashamati was
found in the well situate in the land of Eknath
Avhad.
H) On the very day, i.e. on 30th April,
2001, Pandharinath, elder brother of Ashamati,
filed First Information Report in Daithana police
station on the allegation that accused persons
subjected Ashamati to cruel treatment on account
of demand for balance dowry amount and because of
such cruel treatment, Ashamati committed suicide.
Crime No.26 of 2001 under Sections 498-A, 304-B
and 306 read with 34 of the I.P. Code was
registered in Daithana police station.
I) Investigation was entrusted to P.S.I.
Sampate. The dead body of Ashamati was referred
for post-mortem after inquest panchnama was drawn.
The panchnama of scene of offence was drawn.
Statements of witnesses were recorded. Viscera was
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forwarded to C.A. After receipt of post-mortem
report and report of C.A., charge-sheet came to be
filed against accused persons. Learned Magistrate
has committed the case to the Court of Sessions,
Parbhani in due course.
8. A charge for an offence punishable under
Sections 498-A, 304-B and 306 of the I.P. Code was
framed against all the accused persons and the
same was read over and explained to them. All
accused persons pleaded not guilty and claimed to
be tried. As per the statements under Section 313
of the Code of Criminal Procedure, it is the
defence of the accused that they never subjected
Ashamati to cruel treatment. They had received
entire dowry amount at the time of marriage.
Ashamati died accidentally due to fall in the well
when she had gone for attending nature's call.
Ashamati had not committed suicide. On account of
untimely death of Ashamati, accused are falsely
involved.
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9. After recording the evidence and
conducting full fledged trial, the trial Court
convicted accused No.2 - Vaijinath and accused
No.4 - Gayabai for the offence punishable under
Sections 498-A and 304-B of the I.P. Code and
sentenced them to suffer imprisonment and to pay
fine, as afore-stated. Hence Criminal Appeal No.50
of 2003 is filed by accused Nos.2 and 4. The trial
Court has acquitted accused Nos.1, 3 and 5 from
all the charges with which they were charged.
Hence Criminal Appeal No.326 of 2003 is filed by
the State challenging the acquittal of accused
Nos.1, 3 and 5, as afore-stated. Criminal Appeal
No.329 of 2003 is filed by the State for
enhancement of sentence imposed by the trial Court
on accused Nos.2 and 4, as afore-stated.
10. Learned counsel appearing for original
accused Nos.2 and 4 - Appellants in Criminal
Appeal No.50 of 2003 submits that accused Nos.2
and 4 have been falsely implicated in the present
case. They never subjected to any cruelty to
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Ashamati. He submits that it is not the case of
the prosecution that Ashamati died homicidal
death, but it is the case of the prosecution that
Ashamati committed suicide. Referring to the
evidence of PW-1 Dr. Muna Afreen, who conducted
post-mortem on the dead body of Ashamati, learned
counsel submits that PW-1 Dr. Muna Afreen
specifically stated in her cross-examination that,
in such cases it cannot be ascertained whether the
death caused is accidental or suicidal. Learned
counsel therefore submits that the prosecution has
failed to establish conclusively that Ashamati had
committed suicide. Learned counsel further submits
that Ashamati died accidentally due to fall in
the well when, early in the morning, she had gone
for attending nature's call. Learned counsel
further submits that accused Nos.2 and 4, both are
innocent and they have not at all committed any
offence. It is therefore submitted that Criminal
Appeal No.50 of 2003 deserves to be allowed.
11. As against this, learned A.P.P. appearing
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for the State submits that while settling the
marriage, it was decided that parents of Ashamati
would pay an amount of Rs.20,000/- towards dowry.
However, due to financial difficulties, father of
Ashamati had paid only Rs.10,000/- and it was
stated that remaining dowry amount would be paid
subsequently. Referring to the evidence of PW-2
Pandharinath, PW-3 Balasaheb and PW-4 Bhaurao,
learned A.G.P. submits that due to non payment of
dowry amount, the accused persons subjected
Ashamati to the ill-treatment and therefore she
committed suicide. He further submits that the
prosecution has proved beyond reasonable doubt
that due to the ill-treatment at the hands of all
the accused persons, Ashamati committed suicide
and therefore the trial Court should not have
acquitted the accused Nos.1, 3 and 5. He further
submits that though the trial Court has held
accused Nos.2 and 4 guilty for the offence
punishable under Sections 498-A and 304-B of the
I.P. Code, the sentence awarded to them is very
less and therefore it is submitted that Appeal for
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enhancement of sentence deserves to be allowed.
Learned A.P.P. therefore prays that Criminal
Appeal No.50 of 2003, filed by the accused Nos.2
and 4 may be rejected, and Criminal Appeal Nos.326
of 2003 filed against acquittal of accused
Nos. 1, 3 and 5, and Criminal Appeal No.329 of
2003 filed for enhancement of sentence imposed on
accused Nos.2 and 4 may be allowed.
12. We have considered the submissions of the
learned counsel appearing for the Appellants and
learned A.P.P. appearing for the State. We have
carefully perused the entire original record. To
prove its case, the prosecution has examined five
witnesses.
13. The prosecution has examined PW-1 Dr.
Muna Afreen d/o Abdul Gaffar. She deposed that on
1st May, 2001 she was serving as medical officer
in the Primary Health Centre, at Daithana. The
dead body of Ashamati w/o Vaijinath Avhad was
referred for post-mortem on 1st May, 2001. PW-1
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and Dr. Devale conducted post-mortem on the dead
body of Ashamati. Accordingly, they prepared post-
mortem report. She deposed that post-mortem report
Exhibit 19 bears her signature and the contents of
the same are correct. She further deposed that as
per their opinion, the cause of death of Ashamati
was due to asphyxia due to drowning. Viscera was
preserved and forwarded to C.A. In the viscera,
poison was not revealed as per report of C.A.
. During the course of cross-examination,
PW-1 Dr. Muna Afreen stated that, in such cases it
cannot be ascertained whether the death caused is
accidental or suicidal.
14. It is the case of the prosecution that
death of Ashamati was suicidal, as against this,
it is the case of the accused that death of
Ashamati was accidental. It is clear from the
evidence of the medical officer who has conducted
post-mortem on the dead body of Ashamati, that she
was not sure whether the death of Ashamati was
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accidental or suicidal.
15. The prosecution has examined PW-2
Pandharinath Gangadhar Jamare, who is an informant
in this case. He deposed that the deceased
Ashamati was his real sister. About two years
prior to her death, Ashamati was married with
accused No.2 Vaijinath. Accused No.1 Baliram is
the father, accused No.4 Gayabai is mother,
accused No.3 Bhagwan is brother of accused and
accused No.4 Meerabai is the wife of accused No.3
Bhagwan.
. PW-2 Pandharinath further deposed in his
examination-in-chief that, at the time of
marriage, they had agreed to pay dowry amount of
Rs.20,000/- and the golden ring weighing 5 grams.
At the time of marriage, they paid Rs.10,000/- and
golden ring of 5 grams. It was agreed that the
balance amount shall be paid after harvesting
season. Soon after marriage, Ashamati started to
reside with accused at village Daithana. Within
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about one month soon after marriage, all accused
persons started insisting Ashamati for bringing
balance amount of dowry of Rs.10,000/- from her
parents. All the accused were subjecting Ashamati
to cruel treatment. Whenever Ashamati used to
visit their house on the occasions of festivals,
she was informing about cruel treatment at the
hands of the accused persons. Pandharinath himself
and his father used to convince the accused
persons that the balance amount shall be paid
after harvesting season. At the time of Panchami
festival, they had brought Ashamati to their
house. Ashamati stayed with them from Panchami
festival upto Makar Sankrati festival. Then she
went back to her matrimonial house along with
maternal uncle Balasaheb Wamanrao Punjare, Bhaurao
Shesherao and Devidas Marotirao Jambre.
Pandharinath had also gone to Daithana along with
Ashamati and other persons. On that occasion, all
the accused persons demanded balance amount of
Rs.10,000/-. Particularly accused No.4 gave threat
that if the balance amount of Rs.10,000/- is not
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paid, they shall not be able to see even the nail
of Ashamati.
. PW-2 Pandharinath further deposed that,
subsequently, on 28th March, 2001, marriage of his
younger brother was solemnized and on that
occasion, they had brought Ashamati to their
house. Ashamati informed them that accused persons
were subjecting her to cruel treatment because of
non-payment of balance amount of Rs.10,000/-.
Accused No.2 - Vaijinath used to beat Ashamati on
and often, whereas the remaining accused were
insisting Ashamati to bring balance amount of
Rs.10,000/-. PW-2 Pandharinath further deposed
that soon after the marriage of his younger
brother, he had gone to the house of accused along
with Ashamati, and they had given a table fan to
the accused. On that occasion, all the accused
persons were asking him about the balance dowry
amount of Rs.10,000/-. The accused had given
threat to end the life of Ashamati, if the balance
amount is not paid at the earliest.
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. PW-2 Pandharinath further deposed that on
21st April, 2001 he had gone to Pokharni for
offering his prayer to the temple situate at
Pokharni. There he met with Ashamati at Pokharni.
Ashamati attempted to talk with him but the
accused persons had not allowed Ashamati to talk
with her brother Pandharinath. He further deposed
that on 29th April, 2001 a person by name Ananda
from village Daithana had come to their village
and informed that Ashamati was missing from the
house of accused. Pandharinath himself, his
parents, younger brother went to village Daithana
and searched for Ashamati, but she was not found.
On 30th April, 2001 one Limbaji Rambhau Lokhande
informed that the dead body of Ashamati was found
in the well situate in the land of Eknath Sopanrao
Avhad. Immediately they went to the land of Eknath
Avhad. They found the dead body of Ashamati in the
well. On the same day, Pandharinath filed F.I.R.
in Daithana police station. He further deposed
that Ashamati committed suicide only because of
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the cruel treatment given by the accused persons,
as their demand for balance dowry amount was not
fulfilled.
16. During the course of cross-examination,
PW-2 Pandharinath has stated that, the marriage of
Ashamati was settled after Ashamati and accused
No.2 had approved each other. After the marriage
was settled, Pandharinath and his family members
had gone to the house of the accused for "Tila"
ceremony, and after said ceremony, the accused
persons came to his house for "Kunku" ceremony.
After these ceremonies, marriage was performed.
About 8 to 10 days after marriage, for the first
time Ashamati came to their house, she stayed with
them for about eight days. By that time the
accused persons had not started demanding balance
dowry amount. He further stated that they had not
filed any complaint even when Ashamati was
informing them repeatedly at the time of her every
visit that she was subjected to cruel treatment.
He further stated that his family owns about 15
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acres land. The accused persons own about 10 acres
land. In the land of accused well is not situate.
When he had seen the well situate in the land of
Eknath Sopanrao, the water was at a level of
about 5 feet from ground level and there were
three steps upto the water level. He further
stated that, after going to the house of accused,
accused No.4 had informed that during morning
hours Ashamati had gone for attending nature's
call at about 5.00 a.m. and since then she had not
returned back to the house. On the next day
Limbaji Rambhau had come to their village and
informed that the dead body of Ashamati was found
in the well. He further stated that prior to the
incident, at Pokharni village, accused No.2 and
Ashamati had offered "Abhishek" to Lord Narsinha;
and they had hosted meals to entire village. The
further suggestions put to PW-2 Pandharinath, were
denied by him.
17. Thus, from careful perusal of the
evidence of the informant Pandharinath, it appears
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that he has not specifically stated the date and
time when alleged ill-treatment was given to
Ashamati by the accused persons. He has made
general allegations that for the non-payment of
balance amount of dowry all the accused were
subjecting Ashamati to cruel treatment.
18. The prosecution has examined PW-3
Balasaheb Wamanrao Punjare. He deposed that
deceased was his sister's daughter. She was
married with accused No.2 about two years prior to
her death. At the time when the marriage was
settled, parents of Ashamati had agreed to pay
dowry amount of Rs.20,000/- and golden ring
weighing 5 grams. About three months soon after
marriage, Ashamati had come to her parent's house.
When he had been to the house of parents of
Ashamati, she informed him that because of non-
payment of balance dowry amount of Rs.10,000/-
accused were subjecting her to cruel treatment.
PW-3 Balasaheb, informant Pandharinath and others
had gone to the house of accused along with
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Ashamati. On that occasion all the accused
insisted for payment of balance dowry amount and
on failure, they gave threat of causing death of
Ashamati.
19. During the course of cross-examination,
PW-3 Balasaheb stated that his village is at a
distance of about 15 Kms. from Parbhani town.
Village Daithana is at a distance of about 22 Kms.
from Parbhani town on opposite side. His statement
was not recorded by police. He had not stated
before the police that Ashamati had informed him
that the accused persons subjected her to cruel
treatment on account of balance dowry amount of
Rs.10,000/-. About 8 to 10 days after Makar
Sankrant, he had gone to village Daithana with
deceased Ashamati and others. Thereafter, he never
met Ashamati. He does not remember whether the
accused persons had come to the house of informant
prior to the marriage of Ashamati for "Kunku"
ceremony. He had not gone to the house of accused
at the time of "Tila" ceremony. As PW-3 Balasaheb
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was not present, he does not know as to how much
amount was given at the time of "Tila" ceremony to
the accused. PW-3 Balasaheb has further denied the
suggestion put to him by the counsel appearing for
the accused.
20. Thus, from careful perusal of the
evidence of PW-3 Balasaheb, it is clear that his
statement was not recorded by the police, nor he
himself has stated before the Police that Ashamati
had informed him that the accused persons
subjected her to cruel treatment on account of
non-payment of balance amount of dowry. For the
first time, PW-3 Balasaheb has deposed before the
Court that accused persons were ill-treating
Ashamati on account of alleged non-payment of
balance dowry amount. PW-3 Balasaheb was not
present either for "Kunku" ceremony or "Tila"
ceremony and therefore he had no personal
knowledge about exact amount which was agreed to
be given as dowry and how much amount of dowry was
paid and how much was remained to be paid.
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Therefore, in our opinion, the evidence of PW-3
Balasaheb is not trustworthy and reliable.
21. The prosecution has examined PW-4 Bhaurao
Sheserao Shinde. In his examination-in-chief PW-4
Bhaurao deposed that Ashamati was married with
accused No.2 about two years prior to her death.
At the time of marriage, an amount of Rs.20,000/-
was settled as dowry amount and a golden ring. Out
of the agreed amount, at the time of marriage
Rs.10,000/- were paid and golden ring was given.
The remaining amount of Rs.10,000/- was agreed to
be paid after one year. About three months after
marriage Ashamati returned to her parent's house.
Ashamati informed him that the accused persons
subjected her to cruel treatment because of non-
payment of balance amount of Rs.10,000/-.
Gangadhar, father of Ashamati had convinced her.
At the time of Panchami festival again Ashamati
came to her parent's house. Ashamati stayed at the
house her parents up-to Makar Sankarant. On that
occasion, Ashamati informed that the accused
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persons had directed her not to return to their
house unless and untill balance dowry amount of
Rs.10,000/- was paid. PW-4 Bhaurao further deposed
that his land and land of father of Ashamati are
adjacent to each other and so they are having
cordial relations. He further deposed that he
himself, Dasu, maternal uncle of Ashamati and
Pandharinath had gone to the house of accused
along with Ashamati. They tried to convince the
accused persons that the balance amount of
Rs.10,000/- shall be paid to them. However,
accused No.4 Gayabai gave threats that if the
balance amount of Rs.10,000/- is not paid, they
shall not be in a position to see even the nail of
Ashamati.
. PW-4 Bhaurao further deposed that,
subsequently, at the time of marriage of her
brother, Ashamati had come to her parent's house.
On that occasion also Ashamati informed that the
accused persons were subjecting her to cruel
treatment because of non-payment of balance dowry
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of Rs.10,000/-. About fifteen days thereafter he
came to know that Ashamati was missing from the
house of the accused after she had gone for
attending nature's call. Thereafter he came to
know that the dead body of Ashamati was found in a
well. He further deposed that he himself, Pandhari
and other villagers went to Daithana. The dead
body of Ashamati was found in the well.
22. During the course of cross-examination,
PW-4 Bhaurao has stated that informant or his
family members are not his relatives. The house of
informant is away from his house and it is situate
in Dhangar Galli. He is the member of village Gram
Panchayat. Bhanudas is the Sarpanch and they
belong to same party. Informant Pandhari and his
family members are the members of opposition
party, still their relations are cordial. He
further stated that police had recorded his
statement. He stated that contents of his
statement that Gangadhar, father of Ashamati had
informed him about the cruel treatment given to
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Ashamati by the accused, are correct. He was
unable to assign any reason as to why in his
statement before the Police it is not mentioned
that Ashamati had informed him about her cruel
treatment at the hands of the accused. He does not
remember the day or the date of marriage of
Ashamati. He also does not remember the year when
marriage was performed. He was present in the
meeting when the marriage was settled, the meeting
was held in the house of Gangadhar. But he does
not remember the date of meeting. The meeting was
held about one month prior to the marriage. He
does not remember the name of maternal uncle of
Ashamati. They had been to the house of the
accused along with Ashamati one day prior to Makar
Sankrant. He was unable to tell the year when he
had been to the house of the accused at the time
of Makar Sankrant, but he had gone about one and
half months back. PW-4 Bhaurao further denied the
suggestions put to him by the counsel appearing
for the accused.
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23. Thus, it is clear that the prosecution has
brought on record the contradictions, omissions
and improvements in the evidence of PW-4 Bhaurao.
Though in his examination-in-chief he has
specifically stated that Ashamati had informed him
that the accused persons subjected her to cruel
treatment, in his cross-examination, he has
specifically admitted that it is recorded in his
police statement that Gangadhar, father of
Ashamati had informed him about the cruel
treatment given to Ashamati by the accused. Thus,
it is clear that the evidence of PW-4 Bhaurao is
hear say, regarding the alleged ill-treatment
given to Ashamati by the accused persons. PW-4
Bhaurao had further admitted that contents in his
police statement were correct. PW-4 Bhaurao was
unable to tell the day and date of the marriage of
Ashamati. He further stated that though he was
present in the meeting when the marriage was
settled, however he was unable to state the date
of such meeting. Thus, oral testimony of PW-4
Bhaurao is not at all inspiring confidence.
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24. The prosecution has examined PW-5
Prashant Pandurang Sampate, A.P.I., who was the
investigating officer in this case. He has deposed
about the manner in which he has carried out the
investigation.
25. We have discussed the evidence of all the
witnesses, in detail. It is the case of the
prosecution that at the time of settlement of the
marriage, it was agreed that father of Ashamati
would pay an amount of Rs.20,000/- as a dowry. It
is further the case of the prosecution that out of
the said amount of dowry, only an amount of
Rs.10,000/- was paid at the time of marriage and
an amount of Rs.10,000/- was remained to be paid,
and on account of non-payment of the said amount,
the accused had given ill-treatment to Ashamati.
However, the prosecution has failed to prove that
due to non-payment of the dowry amount, the
accused persons had ill-treated to Ashamati. In
this regard, we have carefully perused the
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evidence of PW-2 Pandharinath who is informant and
real brother of the deceased, PW-3 Balasaheb, who
is the maternal uncle of deceased and PW-4 Bhaurao
who is the friend of father of deceased Ashamati.
All these three witnesses have made general
statements that, due to non-payment of dowry
amount all the accused persons were subjecting
Ashamati to cruel treatment. However, these
witnesses have not given any details or
particulars as to on which date and at which time
such ill-treatment was given to Ashamati. No
specific instances are quoted and only general and
vague statements are made. Further, regarding the
ill-treatment given to Ashamati by the accused
persons, the oral testimony of all these
prosecution witnesses i.e. PW-2 Pandharinath,
PW-3 Balasaheb and PW-4 Bhaurao, is same, similar
and stereo-type. All these witnesses have stated
that, all the accused were subjecting Ashamati to
cruel treatment, and nothing more than that is
deposed by these witnesses. Therefore, we are of
the considered opinion that the prosecution has
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failed to establish that accused persons have
committed an offence punishable under Section
498-A of the I.P. Code.
26. It is true that in the facts of the
present case, death of Ashamati occurred within
seven years from the date of marriage. However,
upon careful perusal of the evidence of PW-1 Dr.
Muna Afreen, the medical officer who has conducted
post-mortem on the dead body of Ashamati, she
has, in clear terms, stated in her cross-
examination that she was not sure whether the
death of Ashamati was accidental or suicidal. Thus
the prosecution has failed to establish that
Ashamati had committed suicide. As against this,
it is the defence of the accused that on the day
of incident, early in the morning Ashamati went to
the field, to attend nature's call and
accidentally she fell in the well. Thus, it
appears that the accused have taken a probable
defence. Therefore, the possibility of accidental
death of Ashamati cannot be ruled out.
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27. As observed earlier, there are various
contradictions, omissions and improvements in the
oral evidence of PW-3 Balasaheb and PW-4 Bhaurao.
We have carefully perused the findings recorded by
the trial Court. The trial Court, in Para 29 of
the Judgment, referred to the contradictions in
the evidence of PW-3 and PW-4 Bhaurao. Thereafter
in Para 30 of the Judgment, the trial Court has
observed as under:
"In view of these contradictions
appearing in the statements of PW.3
Balasaheb and PW.4 Bhaurao at the most
it can be said that these witnesses
have improved their versions to the
effect that Ashamati had informed them
about her cruel treatment at the hands
of accused persons. However, because of
these contradictions in the statements
of PW.3 Balasaheb and PW.4 Bhaurao
remaining part of their statements can
not be disbelieved."
28. The afore-said findings recorded by the
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trial Court are perverse. When the trial Court has
concluded that there were contradictions and
improvements in the oral testimony of PW-3
Balasaheb and PW-4 Bhaurao, the trial Court ought
to have discarded such untrustworthy and
unreliable evidence.
29. In Para 37 of the Judgment, the trial
Court has observed that, there is no convincing
evidence to prove beyond reasonable doubt that
Ashamati committed suicide and under such
circumstances, benefit of doubt must go to
accused. The trial Court has further observed that
prosecution has failed to prove that Ashamati
committed suicide. Thus, the trial Court has
concluded that Ashamati had not committed suicide.
Further, in Para 38 of the Judgment, the trial
Court has observed that, as prosecution has failed
to prove beyond reasonable doubt that Ashamati
committed suicide, consequently it cannot be said
that accused persons or any of them abetted
commission of suicide by Ashamati. The trial Court
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has further observed that, even otherwise there is
no cogent and reliable evidence to prove abetment
by instigation or intentional aiding. It is
further observed that, no cogent and reliable
evidence is adduced to show that accused persons
or any of them instigated Ashamati to commit
suicide or that they intentionally aided her to
commit suicide. Thus, the trial Court has
concluded that, the prosecution has failed to
prove that accused persons or any one of them
abetted in commission of suicide by Ashamati.
30. We have perused the First Information
Report Exhibit-24. The informant Pandharinath has
specifically stated in the First Information
Report that due to the ill-treatment given by the
accused persons, his sister Ashamati had committed
suicide by jumping in the well. However, as
observed earlier, the trial Court has concluded
that deceased Ashamati had not committed suicide.
The trial Court has further held that the
prosecution has failed to prove that accused
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persons or any one of them abetted in commission
of suicide by Ashamati. However, on the same set
of evidence, the trial Court has held that
accused No.2 - Vaijinath and accused No.4 -
Gayabai have committed the offence punishable
under Section 498-A and 304-B of the I.P. Code. On
the same set of evidence, the trial Court has
acquitted original accused Nos.1, 3 and 5 from all
the offences with which they were charged.
31. Learned counsel appearing for original
accused Nos.2 and 4, has rightly placed reliance
upon the exposition of law by the Supreme Court
in the case of Bakshish Ram and another vs. State
of Punjab1, in Para 13 of the Judgment, held as
under:
"13. As discussed above, a perusal of
Section 113B of the Evidence Act and
Section 304B, I.P.C. shows that there must
be material to show that soon before her
death the victim was subjected to cruelty
or harassment. In other words, the
1 A.I.R. 2013 S.C. 1484
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prosecution has to rule out the possibility
of a natural or accidental death so as to
bring it within the purview of the "death
occurring otherwise than in normal
circumstances". The prosecution is obliged
to show that soon before the occurrence,
there was cruelty or harassment and only in
that case presumption operates. As observed
earlier, if the alleged incident of cruelty
is remote in time and has become stale
enough not to disturb the mental
equilibrium of the woman concerned, it
would be of no consequence. In the case on
hand, admittedly, the prosecution heavily
relied on the only evidence of Sibo (PW-2)-
mother of the deceased which, according to
us, is a hearsay, in any event, a very
general and vague statement which is not
sufficient to attract the above provisions.
In such circumstances, as argued by the
learned counsel for the appellants,
accidental death cannot be ruled out."
32. In the present case in hand, the
prosecution failed to establish that soon before
the death of Ashamati, she was subjected to
cruelty or harassment by the accused persons in
connection with any demand for dowry. Further, so
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far as the ill-treatment is concerned, the
prosecution witnesses have made general and vague
statements which are not sufficient to attract the
provisions of Section 304-B of the I.P. Code.
33. Thus, we are of the considered view that
the findings recorded by the trial Court so far as
convicting and sentencing accused Nos.2 and 4 for
the offence punishable under Section 498-A and
304-B read with 34 of the Indian Penal Code are
perverse and the same are liable to be quashed and
set aside.
34. So far as the findings recorded by the
trial Court thereby acquitting accused No.1 -
Baliram, accused No.3- Bhagwan and accused No.5 -
Meerabai from all the offences with which they
were charged are concerned, the same are in
accordance with the evidence brought on record.
The prosecution has failed to establish that
accused Nos.1, 3 and 5 have committed any of the
offences with which they were charged.
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35. For the reasons afore-stated we are of
the opinion that Criminal Appeal No.50 of 2003
filed by original accused No.2 - Vaijinath Avhad
and accused No.4 - Gayabai Avhad, deserves to be
allowed.
36. For the reasons afore-stated Criminal
Appeal No.326 of 2003 filed by the State
challenging the acquittal of original accused No.1
- Baliram Avhad, accused No.3- Bhagwan Avhad and
accused No.5- Meerabai Avhad for the offences with
which they were charged is liable to be dismissed.
So also Criminal Appeal No.329 of 2003 filed by
the State for enhancement of the sentence awarded
by the trial Court to original accused No.2 -
Vaijinath Avhad and accused No.4 - Gayabai Avhad
also deserves to be dismissed.
37. In the light of discussion in foregoing
paragraphs, we pass the following order:
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O R D E R
(I) Criminal Appeal No.50 of 2003 is allowed.
(II) The impugned Judgment and order dated 7th January, 2003, in Sessions Trial No.121 of 2001, passed by 4th Additional Sessions Judge, Parbhani thereby convicting and sentencing accused No.2 - Vaijinath Avhad and accused No.4 Gayabai Avhad for the offence punishable under Section 498-A and 304-B of the Indian Penal Code, is quashed and set aside.
(III) Appellants in Criminal Appeal No.50 of 2003 i.e. original accused No.2 - Vaijinath Avhad and accused No.4 Gayabai Avhad are acquitted of the offence punishable under Sections 498-A and 304-B of the Indian Penal Code. ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:38 :::
cria50.03+ 42 (IV) The impugned Judgment and order dated 7th January, 2003 in Sessions Trial No.121 of 2001, passed by 4th Additional Sessions Judge, Parbhani thereby acquitting original accused No.2 Vaijinath Avhad and accused No.4- Gayabai Avhad of the offence punishable under Section 306 read with 34 of the Indian Penal Code, is hereby confirmed. (V) The bail bonds of both the Appellants i.e. Vaijinath Avhad and Gayabai Avhad shall stand cancelled. (VI) The Appellants - Vaijinath Avhad and Gayabai Avhad shall furnish the Personal Bonds of Rs.15,000/- each and surety of like amount each, under Section 437-A of the Code of Criminal Procedure, before the concerned trial Court at Parbhani.
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cria50.03+ 43 (VII) The impugned Judgment and order dated 7th January, 2003 in Sessions Trial No.121 of 2001, passed by 4th Additional Sessions Judge, Parbhani, thereby acquitting original accused No.1 - Baliram Avhad, accused No.3 - Bhagwan Avhad and accused No.5- Meerabai Avhad of the offences punishable under Sections 498-A, 306 and 304-B read with 34 of the Indian Penal Code is also confirmed. (VIII) Criminal Appeal No.326 of 2003 and Criminal Appeal No.329 of 2003 are hereby dismissed.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/APR18 ::: Uploaded on - 26/04/2018 ::: Downloaded on - 27/04/2018 01:52:38 :::