Bombay High Court
Dilip Vitthalrao Dhongale vs State Of Mah. Thr. Pso Ps Parva Tah. And ... on 29 July, 2022
Author: G. A. Sanap
Bench: G. A. Sanap
apeal.498.2020 judge.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 498 OF 2020
Dilip Vitthalrao Dhongale
Aged about 39 yrs, Occ. Agriculturist,
R/o. Kelzara Warthi, Tah. Arni,
District Yavatmal .. APPELLANT
...VERSUS...
State of Maharashtra,
Through Police Station Officer,
Police Station Parva,
Tah. And Dist. Yavatmal .. RESPONDENT
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Shri R. Sidhaarth, Advocate for the appellant
Shri N. S. Rao, APP for the respondent/State
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CORAM : G. A. SANAP, J.
DATE : 29/07/2022
ORAL JUDGMENT
1. In this appeal, challenge is to the Judgment and order, dated 06.07.2019, passed by the learned Additional Sessions Judge, Yavatmal whereby the appellant came to be convicted for the offences punishable under Sections 304-B, 306, 506 (II) and 498-A of the Indian Penal Code [for short 'IPC'] and under Section 4 of the Dowry Prohibition Act, 1961 [for short 'Dowry Act']. The sentences awarded to him on different counts are as follows:-
"a) Rigorous Imprisonment for 7 (seven) years under Section 304-B of the Indian Penal Code.
apeal.498.2020 judge.odt 2
b) Rigorous Imprisonment for 7 (seven) years and to pay fine of Rs.2,000/- (Rs.Two Thousand only), in default to further suffer Simple Imprisonment for 3 (three) months under Section 306 of the Indian Penal Code.
c) Rigorous Imprisonment for 2 (two) years and to pay fine of Rs.2,000/- (Rs.Two Thousand only), in default to further suffer Simple Imprisonment for 3 (three) months under Section 498-A of the Indian Penal Code.
d) Rigorous Imprisonment for 2 (two) years and to pay fine of Rs.2,000/- (Rs. Two Thousand only), in default to further suffer Simple Imprisonment for 3 (three) months under Section 506 (II) of the Indian Penal Code.
e) Rigorous Imprisonment for 1(one) year and to pay fine of Rs.2,000/-(Rs. Two Thousand only), in default to further suffer Simple Imprisonment for 1 (one) month under Section 4 of the Dowry Prohibition Act."
2. The facts, leading to this appeal, are as follows:
In this case, the crime has been registered against the appellant on the report of Sangita Wankhede (PW-1), who happens to be the sister of the deceased. The appellant and the deceased got married on 02.05.2013.
apeal.498.2020 judge.odt 3 The deceased for sometime cohabited with the appellant. For initial three months after the marriage, there was no ill-treatment. It is stated that the appellant and his relatives started demanding Rs.50,000/- from the parents of the deceased to buy Hero Honda Motorbike. The deceased disclosed this fact to her parents when she came to her parents house. The second reason for ill-treatment, narrated by the deceased to her parents, was the allegation of the appellant of her illicit relations with his brother. The deceased disclosed that on this ground the appellant would beat her. The deceased disclosed ill-treatment on this ground to her mother-in-law. However, her mother-in- law, instead of admonishing the appellant, scolded the deceased. On the occasion of her first Diwali, she came to her parents house. She narrated continuous ill-treatment meted out to her by the appellant and his parents. The parents of the deceased tried to convince the appellant and gave an understanding to him, when he went to fetch back the deceased from her parents house. After Diwali festival of the year 2013, there was no change in the attitude of the appellant and his parents. The appellant reiterated the demand of Rs.50,000/- from her parents to purchase a Hero Honda Motorbike. When the ill-treatment became unbearable, the deceased lodged report at Parva Police Station. The appellant was prosecuted for the offences apeal.498.2020 judge.odt 4 punishable under Section 498-A, 323, 504 and 506 of the IPC.
3. It is stated that after few months compromise took place between the appellant and the deceased. In view of the compromise, on 01.04.2014, the prayer made by them to compound the offence was granted by the learned Judicial Magistrate First Class at Ghatanji. After compromise and disposal of the criminal case against the appellant, she went back to the house of the appellant. It is stated that again the appellant and his mother started ill-treatment to the deceased on account of failure of her parents to meet their demand of Rs.50,000/-. It is stated that the appellant had illicit relations with his sister-in-law. The deceased on the date of the incident i.e. 14.05.2014 saw the appellant and his sister-in-law in compromising position. She got annoyed. She disclosed this fact to her mother-in-law, so that the mother-in-law would admonish the appellant. However, the mother-in-law instead of admonishing the appellant scolded the deceased by branding her a rascal. The appellant and the mother-in-law, on this count quarreled with the deceased. The appellant even extended threat to kill the deceased by hanging her from Neem tree. It is the case of the prosecution that after this incident, on 14.05.2014 in the morning, the deceased made a phone call to her sister, apeal.498.2020 judge.odt 5 who is the informant in this case and disclosed this fact to her. The informant at that time tried to convince the deceased. The informant told the deceased to wait till 12:00 noon and by that time, she would send her father and maternal uncle to the house of the deceased. The deceased, as can be seen from the record, consumed pesticide and tried to end her life.
4. On 14.05.2014 at about 3:00 p.m., as per the case of the prosecution, the appellant made a phone call to the informant i.e. PW-1 and informed her that deceased was taken to the Hospital at Yavatmal. The informant conveyed this information to her parents and maternal uncle. They all went to Government Hospital, Yavatmal. The deceased was brought there. The informant made inquiry with the deceased about the incident. The deceased disclosed the above stated incident to the informant. The deceased also informed the informant that even after settlement of the dispute the ill-treatment to her continued on account of failure of her parents to pay Rs.50,000/-. She informed her sister that the ill-treatment was unbearable and therefore, she consumed poison.
5. The deceased was admitted in Hospital on 14.05.2014. She died on 16.05.2014. On 20.05.2014, the informant lodged the report at apeal.498.2020 judge.odt 6 Parva Police Station and narrated the above incident to the police. On the basis of the report, a Crime bearing No. 69 of 2014 came to be registered for the above offences against the appellant, his mother and sister-in-law.
6. The intimation of the death of the deceased was conveyed to the police station from the Hospital. On the basis of said information, accidental death vide Marg No. 10 of 2014 was registered at Parva Police Station before lodging the report by the informant. The panchanama of the spot of the incident and inquest panchanama of the dead body was drawn. PSI Sanjay Shirbhate (PW-7) Investigating Officer conducted the investigation. He arrested the appellant, his mother and his sister-in-law. He obtained the postmortem report. He recorded the statements of the witnesses. He obtained the opinion of the CA with regard to the samples namely, vicera, contents of the pesticide and clothes of the appellant and the deceased. The investigation conducted by PW-7 revealed involvement of the appellant only, in commission of the crime. The investigation did not reveal involvement and complicity of the mother and sister-in-law of the appellant in the commission of the crime. They were, therefore, not chargesheeted in the crime.
7. On committal of the case to the Sessions Court, the learned apeal.498.2020 judge.odt 7 Additional Sessions Judge framed charge against the appellant at Exh. 29. The appellant pleaded not guilty to the charge. In order to bring home the guilt of the appellant, the prosecution has examined nine witnesses. The prosecution relied upon number of documents to substantiate its case. The learned Additional Sessions Judge, on analysis and consideration of the evidence adduced by the prosecution, found the appellant guilty of the above offences and sentenced him, as above. Being aggrieved by the Judgment and Order, the appellant has come before this Court in appeal.
8. I have heard the learned Advocate Mr. R. Siddhaarth for the appellant and the learned APP Mr. N. S. Rao, for the State. I have gone through the record and proceedings.
9. The learned Advocate for the appellant submitted that the evidence on record creates doubt about the case of the prosecution. The learned Advocate submitted that from the date of incident, which occurred on 14.05.2014, the report was not lodged till 20.05.2014. The learned Advocate submitted that the deceased died on 16.05.2014. The learned Advocate submitted that immediately after incident occurred on 14.05.2014, the report was not lodged. Similarly, after the death of the apeal.498.2020 judge.odt 8 deceased on 16.05.2014, the report was not lodged till 20.05.2014. The learned Advocate submitted that there is no iota of material to explain this inordinate delay. The learned Advocate submitted that the delay, in the facts and circumstance of this case, is fatal to the case. The learned Advocate submitted that there is hardly any evidence of ill-treatment and demand of dowry by the appellant, as sought to be made out. The evidence of PW-1, informant in this case, who happens to be the sister of the deceased, is not reliable. The learned Advocate for the appellant took me through the evidence of this witness and pointed out the inconsistencies in her evidence. The learned Advocate submitted that even if it is assumed for the sake of argument that any demand of money was made for purchase of Hero Honda Motorbike, the same, by no stretch of imagination, could be said to be a demand of dowry. The learned Advocate submitted that the neighbours, who had taken the deceased to the Hospital, have not been examined in this case by the prosecution. The learned Advocate pointed out from the evidence of the Investigating Officer that initially the deceased was carried to the Hospital by two neighbours. The learned Advocate submitted that after compromise of the first criminal case, filed on the report of the deceased, the incident in question has occurred within a period of 15 days. The learned Advocate apeal.498.2020 judge.odt 9 submitted that the learned Additional Sessions Judge took into consideration the allegations of cruelty which were made in the earlier report. The learned Advocate submitted that the said case was compounded and the appellant was acquitted in that case. The learned Advocate further submitted that the MLC record of the treatment of the deceased has not been placed on record. There are number of lacunae and defects in the case of the prosecution. The learned Advocate submitted that in absence of plausible explanation of those defects and lacunae, the appellant was entitled to get the benefit of doubt. The learned Advocate submitted that the cause for consumption of poison could be the mental trauma suffered by the deceased after having seen the appellant in compromising position with his sister-in-law. In the submission of the learned Advocate, if this was the reason for commission of suicide by consumption of poison, the appellant could not be held responsible for the same. In order to substantiate his submission, the learned Advocate for the appellant placed reliance upon the following reported decisions:
i] Aftab Alam Abdul Hamid Ansari .v/s. State of Maharashtra, reported in 2005 ALL MR (Cri.) 2636 ii] Ganesh Bhavan Patel and anr. .v/s. State of Maharashtra, reported in AIR 1979 SC 135 apeal.498.2020 judge.odt 10
10. The learned APP submitted that in this case the prosecution has adduced sufficient evidence and proved beyond doubt the guilt of the appellant. The learned APP submitted that the delay in this case for lodging the report was natural, inasmuch as the death of the sister of the informant would have been shock to her and her family members and would have disturbed the even tempo of their life for days together. The learned APP submitted that family members would have taken time to come out of the shock and trauma suffered by them. The learned APP submitted that this circumstance is sufficient to explain the delay. In the submission of the learned APP, in the facts and circumstances, the delay noticed in this case is not fatal at all. The learned APP submitted that on the basis of the cogent and reliable evidence, the prosecution has proved that the appellant and his parents had made demand of Rs.50,000/- from the parents of the deceased to purchase Hero Honda Motorbike. The learned APP submitted that the evidence on record is sufficient to prove that on account of failure of parents to meet the demand, the deceased was subjected to cruelty and ill-treatment. The learned APP submitted that the prosecution has proved that, even after compounding of the earlier criminal case, there was no change in the attitude and behavior of the appellant and the ill-treatment to the deceased continued. The apeal.498.2020 judge.odt 11 appellant and his family members continue to make demand to satisfy their greed. The learned APP further submitted that the appellant, in his statement recorded under Section 313 of the Code of Criminal Procedure, has placed on record false explanation for the incriminating circumstances put to him. The learned APP submitted that the evidence of PW-1, 3 and 4 is consistent and therefore, deserves acceptance. The learned APP submitted that on the basis of their evidence, the primary ingredients of Sections 304-B, 306 and 498-A of the Indian Penal Code are made out.
A case has been made out on the basis of the evidence to invoke the presumption provided under Sections 113-A and 113-B of the Indian Evidence Act, 1872 against the appellant. In short, the learned APP supported the judgment and order passed by the learned Additional Sessions Judge. In order to buttress his submission, the learned APP placed reliance on the judgment of the Hon'ble Supreme Court the case of Yashoda and Anr. .v/s. State of M.P., reported in, (2004) 3 SCC 98.
11. At the outset, the relevant facts need to be stated. The marriage between the appellant and the deceased took place on 02.05.2013. The criminal case instituted against the appellant under Sections 498-A, 323, 504 and 506 of the IPC was compounded on 01.04.2014 and he was apeal.498.2020 judge.odt 12 acquitted from the said case. Within 15 days from this date, the deceased consumed poison and committed suicide. The incident occurred on 14.05.2014 between 12:00 noon and 3:00 p.m. The deceased was admitted in the Hospital for treatment. She died on 16.05.2014. The report was lodged by the informant on 20.05.2014. The MLC case papers of the admission and treatment of the deceased in Government Hospital were neither collected nor produced before the trial Court. No plausible explanation has been placed on record for non production of such an important documentary evidence on record. In the ordinary circumstances, the history of assault/incident is inquired by the medical officer and recorded in the MLC report. Admittedly, initially the crime was registered against the mother-in-law and sister in law of the deceased as well. However, the investigation did not reveal their involvement and complicity in the commission of the crime. Perusal of the FIR would show that there is no explanation for the delay in lodging the report. It is to be noted that in the backdrop of the above stated admitted facts, the evidence of the prosecution witnesses would be required to be scrutinized minutely. It is further pertinent to note that if the evidence, on minute scrutiny and appreciation, creates doubt about credibility of the case of the prosecution, then as per the settled principles of criminal apeal.498.2020 judge.odt 13 jurisprudence, the appellant is required to be extended the benefit of the same.
12. Dr. Sachin Gadge (PW-6) is the medical officer. He conducted the postmortem of the dead body on 17.05.2014. The postmortem report is at Exh. 88. The clothes on the dead body were seized by him. Similarly, viscera samples and blood samples were collected by him. It is pertinent to note that poison was not detected by the CA on analysis of the samples. Similarly, on the clothes of the deceased poison was not detected. PW-6 Medical Officer has stated that there were no external injuries over the dead body. He has stated that the provisional cause of death due to poisoning was recorded on the basis of examination of the dead body. PW-6 Medical Officer has denied the suggestion that the opinion as to the cause of death could not be confirmed and therefore, he reserved the final opinion. He has stated in the cross examination that based on the report of the CA, the findings as to the cause of the death can be modified, but it cannot be changed. In short, PW-6 has stated categorically that the symptoms noticed by him on the postmortem of the dead body led him to opine that death was due to poisoning. It is pertinent to note that in his cross examination, there is no suggestion as to apeal.498.2020 judge.odt 14 the cause of death other than poisoning. In my opinion, if the evidence of the Medical Officer is read together with the evidence of the other witnesses, namely PW-1, 3 and 4, it would show that the deceased had consumed poison to end her life. Perusal of cross of examination of the medical officer would show that there was no suggestion to the medical officer that the death was either accidental or natural etc. In order to accept such a theory, even if propounded by the appellant, there ought to have sufficient material. The facts stated by PW-6 and recorded in the postmortem report would clearly indicate that the cause of death in this case was due to poisoning. At this stage, it is pertinent to note that the tin container of the poison was seized during the course of investigation. It was sent to CA for analysis. The CA report is at Exh. 116. On analysis of the tin container, the CA detected Organo-Phosphorous- Insecticide "Monocrotophos" (Nuvacron) poison. It is to be noted that this pesticide container was found at the time of search of the house after lodging the report, on 19.05.2014, during the course of inquiry of accidental death case. The perusal of the cross examination of the investigating officer and other witnesses would show that there is no denial of this fact on behalf of the appellant. Since the pesticide container was found in the courtyard of the house of the appellant, the appellant could have offered the proper apeal.498.2020 judge.odt 15 explanation. It is further pertinent to note that possibility of planting this container is totally ruled out inasmuch as on 19.05.2014, the incident was not reported by the relatives of the deceased. In my opinion, therefore, this aspect of the recovery of the pesticide container from the courtyard of the house of the appellant is important circumstance to lend assurance to the evidence of the medical officer. The evidence of the medical officer, coupled with the evidence of recovery of pesticide container and other witnesses, would be sufficient to conclude that the deceased died due to consumption of poison.
13. It is submitted that in the viscera and blood samples, the poison was not detected. It is to be noted that there could be number of reasons for non detection of poison in the viscera and blood. The deceased was admitted in Hospital from 14.05.2014 to 16.05.2014. She was treated in the Hospital. The deceased being the case of poisoning, the medical officer would have treated her and flushed out the poisonous substances from her body. The deceased survived for three days from the time of consumption of poison. This fact would indicate that the deceased might have consumed small quantity of poison. Therefore, in my opinion, non detection of poison or poisonous substance in the viscera and blood apeal.498.2020 judge.odt 16 samples could not be a conclusive factor to discard the opinion of the medical officer, who had conducted the postmortem of the dead body. The opinion as to the cause of death was drawn on the basis of internal examination of almost all part of the dead body. I, therefore, agree with the finding recorded by the learned Additional Sessions Judge that in this case the cause of death was due to poisoning.
14. In the above backdrop, it would be necessary to appreciate the evidence of the other witnesses. The important witnesses are PW-1, 3 and 4. The entire fate of case of the prosecution revolves around the evidence of PW-1, 3 and 4. The learned Additional Sessions Judge found the evidence of PW-1, 3 and 4 cogent, credible and reliable. Relying on the evidence of these witnesses, the learned Additional Sessions Judge found the appellant guilty of the above offences. The main issue that needs to be addressed on the basis of the evidence is whether the evidence is sufficient to prove that the deceased was subjected to mental and physical cruelty on account of failure of her parents to meet the demand of dowry and which ultimately drove her to commit suicide. I have minutely perused the evidence of PW-1, 3 and 4. PW-1 is the sister of the deceased. PW-3 is the maternal uncle of the deceased and PW-4 is apeal.498.2020 judge.odt 17 the brother of the deceased. The statement of the mother of the deceased was recorded, however, she was not examined. In the given set of facts and circumstances, examination of the mother of the deceased would have lend an assurance to the credibility of the evidence of PW-1, 3 and 4. It is for the simple reason that the daughter normally confides and share her joy, sorrow and difficulties with the mother. The fact, therefore, remains whether the evidence of PW-1, 3 and 4 is sufficient to prove the case of the prosecution.
15. Sangita Wankhede (PW-1), the informant, has deposed about her relations with the deceased. In her evidence, she has deposed about the demand of Rs.50,000/- from her parents by the appellant for purchasing Hero Honda Motorbike and the ill-treatment on that count caused to the deceased. In short, she has deposed about ill-treatment which culminated into filing of the report against the appellant by the deceased and compromise of the said dispute. She has stated that after about 15 days from 01.04.2014, she received a phone call of the deceased and on phone she told her that the appellant and his mother Shobha quarreled with her on account of failure of her parents to pay Rs.50,000/-. The deceased further told her that on that day she saw the appellant in compromising apeal.498.2020 judge.odt 18 position with her sister-in-law Sanjivani. She has stated that deceased told her that when she narrated this incident to her mother-in-law, the mother-in-law, instead of admonishing the appellant, scolded her by branding her a rascal. She has further stated that the deceased told her that the appellant blamed her for making false statement and threatened to hang her from Neem tree. She has stated that she gave understanding to the deceased and calmed her down. She has stated that on 14.05.2014, at about 3:00 p.m. she received a call from the appellant and the appellant informed her that due to domestic quarrel the deceased had consumed poison and they were taking her to the Hospital at Yavatmal. She has deposed that she narrated this fact to her parents. They went to Civil Hospital, Yavatmal. She has further stated that in the Hospital at Yavatmal she made inquiry with the deceased about the cause for consumption of poison. She has stated that the deceased informed her that she saw the appellant and Sanjivani in compromising position and when she disclosed this fact to her mother-in-law, the mother-in-law instead of admonishing the appellant scolded her. She has further stated that there was quarrel on account of her failure to bring the amount of Rs.50,000/-. This is the sum and substance of her evidence. Perusal of her evidence would show that it is not the case of the prosecution that the apeal.498.2020 judge.odt 19 incident of the appellant having found in a compromising position with his sister-in-law by the deceased would constitute the abetment of the commission of suicide by the deceased. Perusal of her evidence would further show that she has not narrated in her evidence any reason for delay in lodging the report. It is to be noted that if there was any explanation for delay in filing the FIR, the same could have been placed on record in the evidence of PW-1 before the Court. In my opinion, failure on the part of the prosecution to place on record the explanation for inordinate delay in reporting the incident to the police in FIR as well as in the oral evidence would be the significant circumstance against the prosecution. Perusal of her evidence would show that after compromise of the criminal case on 01.04.2014, there was no communication between PW-1 and the deceased. As can be seen from her evidence that when the deceased made a phone call to her on 14.05.2014, she narrated to her the incident which deceased saw in the house. It is her case that at that time the deceased told her that on account of failure to meet the demand of Rs.50,000/-, she was ill-treated. In my opinion, at the first blush, her evidence appears to be unbelievable. It is seen from evidence of PW-1 that the real cause for the deceased to take such an extreme step to end her life was not the so called ill-treatment or cruelty on account of failure apeal.498.2020 judge.odt 20 to meet the demand of money, but it was the incident when the deceased saw the appellant in compromising position with his sister-in-law. It is to be noted that the position of the deceased would have become precarious after having seen her husband in relation with his sister-in-law. The act of the appellant would have completely traumatized the deceased. The deceased would have felt at that point of time that her life with such an untrustworthy and disloyal husband would be meaningless. She would have realized that her husband was not faithful to her. The incident would have shaken her faith, dignity and honor. This act would have driven her on the brink to end her life. Perusal of the evidence on record justifies this conclusion inasmuch as the evidence would show that within few hours of the conversation with PW-1, the deceased consumed poison to end her life.
16. The minute perusal of evidence of PW-1, would support this conclusion. It is to be noted that if there was ill-treatment and cruelty, as stated by the PW-1, then the same would have been stated by the deceased to the medical officer, when she was admitted in the Hospital. If the ill-treatment had been stated to the medical officer, which was the cause of committing an attempt to suicide, it would have alerted the apeal.498.2020 judge.odt 21 medical officer and in turn the medical officer would have reported the same to the police immediately. The medical officer would have recorded the same in the MLC papers. Failure to produce MLC papers and examination of the medical officer, who had treated the deceased, in my opinion, would be the important circumstance against the case of the prosecution. PW-1 has stated that when they went to the Hospital, she talked to the deceased in the Hospital. The deceased narrated the incident to her. If the deceased was ill-treated on account of failure of the parents of the deceased to meet the demand, then the PW-1 would have immediately lodged the report to the Police and informed this fact to the treating medical officer. In my opinion, this is a very important aspect in this case. In her cross examination, she has stated that there is police chowki in the Hospital. She has categorically stated that the Police had come to meet the deceased in the Hospital. She has stated that at that time she did not make any complaint against the appellant, his mother and sister-in-law. She has stated that the deceased was in conscious condition. It is pertinent to note that this fact that the deceased was conscious and in a position to talk would have been recorded in the MLC papers. The police, as per the statement of PW-1, came to the Hospital to make inquiry with the deceased. The police would have made inquiry apeal.498.2020 judge.odt 22 with the deceased and the deceased would have narrated the cause behind the incident. In the facts and circumstances and in the teeth of the evidence, the reasonable judicial inference would have to be drawn that in the said inquiry the deceased would not have made any complaint against the appellant, his mother and sister-in-law. It is further pertinent to note that in such an inquiry by the police if the deceased had made any complaint against the appellant, his mother and sister-in-law, the police would have recorded the same in black and white. Similarly, in the teeth of such complaint, the police would have caused the statement of the deceased to be recorded through the Executive Magistrate so that the same could be used in the criminal case against the appellant. In my opinion, this inference is unavoidable in this case. Besides, the suppression of MLC papers and non examination of the medical officer, who had treated the deceased, would be another suspicious circumstance in this case and if it is appreciated in a juxtaposition with the evidence brought on record it would create a doubt in the mind of the Court about the case of the prosecution and ultimately, it would go against the case of the prosecution.
17. There is one more reason to discard and disbelieve the case of the prosecution and the evidence of PW-1, 3 and 4. Admittedly, PW-1 apeal.498.2020 judge.odt 23 lodged the report on 20.05.2014. PW-1 has stated that on 17.05.2014, they performed funeral of the deceased. She has stated that prior to lodging the report, she did not make inquiry with the deceased as to why she has consumed poison. In the very next breath she has stated that the deceased had told her cause for consumption of the poison. It has come on record in her cross-examination that on 20.06.2014, she had prepared one affidavit and gave it to the police. She was confronted with this affidavit in her cross examination. The said affidavit is at Exh. 37. The Investigating Officer has also stated about this affidavit. PW-1 has admitted that in the affidavit she has stated that the report was lodged on the basis of the information and on suspicion. In my opinion, if there was substance in the allegations made in the report as to the ill-treatment meted out to the deceased and the cause of ill-treatment, the PW-1 would have been the last person to support the appellant and his family members. Perusal of her affidavit, which was prepared one month after lodging the report, would show that she completely resiled from the facts stated in the FIR. It is to be seen that this was one of the reasons to give a clean cheat to the mother and sister-in-law of the appellant, before filing the charge-sheet against the appellant. It has further come on record in her cross examination that her supplementary statement was recorded on apeal.498.2020 judge.odt 24 24.06.2014 by the investigating officer. It is to be noted that this statement was recorded by the investigating officer on being confronted with this affidavit of the PW-1 dated 20.06.2014. In her cross examination, she has categorically admitted that at the time of her supplementary statement, she had stated that she was puzzled and confused and therefore, she stated the name of the mother and sister-in- law of the appellant in the report. This fact would prove beyond doubt that before filing the charge sheet, PW-1 on her own gave a clean cheat to the mother and sister-in-law of the appellant. In my opinion, the delay in lodging FIR, would assume great importance, in view of the facts stated by PW-1. If the facts and circumstances and evidence is read together, it would indicate that the PW-1 all throughout concealed certain vital facts. In my opinion, the delay in lodging FIR and subsequent turn around by PW-1, would make the case of the prosecution completely doubtful. It is seen that PW-1 is the star witness of the prosecution. As per her version, the deceased directly interacted with her in respect of the incident and the cause of the incident. If the evidence of PW-1 is discarded or kept out of the consideration, then the entire case of the prosecution would fall flat. Evidence of PW-1, is the foundation of the case of the prosecution. On minute scrutiny and appreciation of her evidence, I am not convinced that apeal.498.2020 judge.odt 25 her evidence is cogent, credible and reliable. The evidence creates a doubt about the genesis of the incident. The minute appreciation of her evidence indicates that the same would only be sufficient to prove the fact of so called illicit relations of the appellant with his sister-in-law.
18. Suresh Tidke (PW-3) is the maternal uncle of the deceased. He has narrated the incident with regard to the ill-treatment and cruelty on account of failure of the parents of the deceased to meet the demand of Rs.50,000/-. He has deposed about initiation of earlier prosecution against the appellant and the compromise arrived at between the parties in the said prosecution. In his evidence, he has stated that PW-1 informed them about consumption of poison by the deceased. He has stated that, therefore, they went to the Government Hospital at Yavatmal. He has stated that in the Hospital he met the deceased and at that time, the deceased told him that the appellant, mother of the appellant and the sister-in-law of the appellant were harassing her. She has further stated that her husband threatened to hang her from the Neem tree. In his evidence, he has not stated that the deceased told her that after compromise of the initial prosecution, any demand of money was made from her parents by the appellant. It is further seen that the deceased did not inform PW-3 about the incident of relation of the appellant with his apeal.498.2020 judge.odt 26 sister-in-law. The evidence of this witness, if read with the evidence of PW-1, would show that this witness had no occasion to talk to the deceased in the Hospital. Even if it is assumed for the sake of argument that this witness had an opportunity and occasion to talk to the deceased in the Hospital, this fact would indicate that deceased was in conscious condition. It further fortifies the inference that if the ill-treatment as stated was met out to the deceased, then she would have stated the same to the medical officer and the medical officer, in turn, would have informed it to the police. The police without wasting any time would have ensured the recording of statement/dying declaration of the deceased with the help of the Executive Magistrate. In my opinion, this is the weakest link and the drawback in the case of the prosecution. It creates a doubt about very foundation and genesis of the case of the prosecution. Therefore, the evidence of PW-3 does not stand on the better footing than the evidence of PW-1.
19. Rajesh Savekar (PW-4) is the brother of the deceased. In his evidence, he has narrated about the ill-treatment to the deceased and filing of the prosecution against the appellant. He has stated that on 01.04.2014, compromise took place between the appellant and the deceased in the Court at Ghatanji and the deceased went to the house of apeal.498.2020 judge.odt 27 the appellant. His evidence is silent about any ill-treatment to the deceased at the hands of the appellant and his family members on any ground and more particularly on the ground of failure of the parents to meet the demand of Rs.50,000/-. He has stated that after compromise, the deceased had informed him that her husband was ill-treating her by raising doubt about her character and chastity. He has stated that deceased told him that her husband would allege that the she had illicit relations with his brother and on that ground he would harass her. The evidence of PW-4 is contrary and inconsistent with the evidence of PW-1 and PW-3. It is not the case of the prosecution that this fact was disclosed by the deceased to PW-1 and PW-3 at any time after she went to the house of the appellant after compromise of the case. The answers given by PW-4 in cross examination would show that on material aspects his evidence is not convincing and reliable. His evidence, if appreciated in totality, would not take the case of the prosecution forward. On minute scrutiny and appreciation of the evidence of PW-1, 3 and 4, I am satisfied that their evidence do not inspire confidence. There are material lacunae and drawbacks in their evidence. The evidence of these witnesses, if appreciated in totality of the facts and particularly undisputed facts, would create a doubt about the very foundation and genesis of the case of the apeal.498.2020 judge.odt 28 prosecution. In my opinion, on the basis of such a shaky and doubtful evidence, the appellant cannot be convicted. It is a cardinal principle of criminal law that the guilt of the accused must be proved beyond reasonable doubt. If there is any doubt in the mind of the Court on appreciation of the evidence as to the credibility of the case of the prosecution, then the benefit of the same must be given to the appellant. In my opinion, this is a case where the accused deserves benefit of doubt. The primary ingredients of Sections 304-B, 306 and 498-A of the IPC have not been made out in this case on the basis of the evidence.
20. It is seen on perusal of the evidence of investigating officer that he gave benefit to the mother and sister-in-law of the appellant before filing the charge sheet. It is seen on perusal of the evidence and particularly the evidence of investigating officer that on arrest of the appellant, the investigating officer made a conscious efforts to show that clothes of the appellant had been discovered pursuant to the confession and at the instance of the appellant. In my view, this kind of story is totally unbelievable. It is not the case of the prosecution that either the blood of the deceased or any poison had fallen on the clothes of the appellant. He was arrested on 23.05.2014. It is apparent on the face of the record that apeal.498.2020 judge.odt 29 the investigating officer would have come across during the investigation that the appellant had not forced or made the deceased to consume poison. If this had been the case, then such type of attempt to collect the evidence would have been appreciated. Be that as it may, the very foundation of the case of the prosecution has been shaken. The prosecution in this case has failed to prove that there was ill-treatment and cruelty to the deceased at the hands of the appellant, which would drove her to take the extreme step of committing suicide. The material on record, apart from being not sufficient to prove the case of the prosecution, is sufficient to draw a reasonable judicial inference that the deceased on being confronted with the relation of the appellant with his sister-in-law made her to end her life. She would have realized that her life apart from being meaningless, would be without honor and dignity. She would have realized that throughout her life she would be required to face such people and uncomfortable atmosphere. I, therefore, conclude that the prosecution has failed to prove the case beyond reasonable doubt against the appellant.
21. The learned Advocate for the appellant relied upon the decision in the case of Aftab Alam (cited supra) and submitted that even if it is apeal.498.2020 judge.odt 30 assumed that the demand was made, the same could not be said to be a dowry demand. The learned Advocate submitted that the demand of money to buy a motorcycle could not be said to be demand of dowry. In this case, the Division Bench of this Court has held that if the demand of money is made by an accused to set up the business for himself and on account of the same, if there is ill-treatment, the same could not be said to be, at the first blush, the demand of a dowry and the ill-treatment and cruelty for non payment of dowry. In this case, the Division Bench of this Court relied on the decision of the Hon'ble Supreme Court in the case of Satvir Singh and ors. .v/s. State of Punjab and Anr, reported in 2001 (8)SCC 633.
22. The next judgment relied upon is in the case of Ganesh Bhavan Patel (cited supra), on the point of the consequences of delay in lodging FIR. In this case it is held that if there is a delay in lodging the FIR and further delay in recording the statement of the material witnesses, the same could be said to be an indicator that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubts and suspicion.
23. The learned APP, relying upon the decision in the case of apeal.498.2020 judge.odt 31 Yashoda (cited supra), submitted that basic legal ingredients have been proved and therefore, the presumption as contemplated under Section 113-B of the Indian Evidence Act would have to be drawn. In this case, before the Hon'ble Supreme Court the prosecution was successful in establishing the cruelty and ill-treatment on account of failure of the in- laws to meet the dowry demand, soon before the incident. It was, therefore, held that if these ingredients are satisfied on the basis of the evidence, then presumption would get attracted. In my view, in the teeth of the evidence led in this case and considered above, this decision would not be applicable to this case. The prosecution has failed to establish the foundation and genesis of this case and therefore, in the teeth of the evidence on record, the conviction and sentence cannot be maintained. The evidence is full of omissions and inconsistencies. It creates doubt about the very foundation of the case of the prosecution. The learned Judge, as can be seen from the reasons recorded in the judgment, has not taken all these facts into consideration while appreciating the evidence of the material witnesses namely PW-1, 3 and 4. In my view, if the learned Judge of the trial Court had juxtaposed all the circumstances, either admitted or undisputed, with the evidence on record, he would have extended the benefit of doubt to the appellant. In the reasons, I conclude apeal.498.2020 judge.odt 32 that appeal deserves to be allowed. Hence, the following order.
ORDER
1. The criminal appeal is allowed.
2. The judgment and order dated 06.07.2019 passed by learned Additional Sessions Judge in Sessions Trial No.85 of 2014, thereby convicting the appellant for an offences punishable under Sections 304-B, 306, 498-A and 506 (II) of the Indian Penal Code, and Section 4 of the Dowry Prohibition Act is quashed and set aside.
3. Appellant- Dilip Vitthalrao Dhongale is acquitted of all the offences punishable under Sections 304-B, 306, 498-A and 506 (II) of the Indian Penal Code, and Section 4 of the Dowry Prohibition Act.
4. The appellant, who is in jail, shall be released forthwith, if not required in any other case.
The criminal appeal stands disposed of, accordingly.
(G. A. SANAP, J.) Namrata Signed By:NAMRATA YOGESH DHARKAR P. A. High Court Nagpur Signing Date:05.08.2022 14:37