The evidence of PW 1 – Mukunda and the evidence of PW 2 –
Sulbha only reveals that whenever Bharti had come to their house, Bharti
had only complained that she was “ill-treated” or “harassed”. Though
Bharti had occasions to come to the house of PW 1 – Mukunda and
Mukunda claims that Bharti had informed him, yet neither PW 1 –
Mukunda nor PW 2 – Sulbha depose about specific instances of cruelty.
The allegations regarding demand of money are so vague and there are
several material omissions in that regard. From the evidence of PW 1 –
Mukunda and the evidence of PW 2 – Sulbha, we do not find that the
prosecution has led any evidence which would indicate that the accused had
ill-treated Bharti and the ill-treatment was of such a degree as would drive
Bharti to either commit suicide or cause an injury to herself. In fact, PW 1
– Mukunda admits that the accused had advanced him loan for construction
of his own house and the accused had sent the DD immediately when a
request was made by PW 1 – Mukunda. Even in respect of the construction
of the house/hospital, PW 1 – Mukunda has admitted that the accused had
asked for a loan. The disputes between accused no.1 and deceased Bharti
were the normal differences which arise between husband and wife and
which would be the normal wear and tear of married life. The evidence
does not conclusively establish that deceased Bharti was ill-treated and the
ill-treatment was of such a degree as would amount to ill-treatment within
the meaning of Section 498-A of the IPC. The reluctance of the accused to
take Bharti to their house was obvious from the fact that deceased Bharti
was suffering from fits and the accused had apprehended that in the event
Bharti causes some injuries to herself, the accused would be blamed and for
that the accused were insisting PW 1 – Mukunda to execute a stamp paper
which would exonerate the accused in the event Bharti sustained some
injuries while suffering from fits. The evidence does not, in our opinion,
lead to an inference that Bharti was subjected to ill-treatment and the illtreatment
was on account of demand for payment of dowry or the illtreatment
was because of failure of PW 1 – Mukunda to meet the illegal
demands of the accused. There is no evidence that soon before her death,
Bharti was ill-treated. The instances, as narrated by PW 6 – Dr. Deepa in
her evidence, have been elicited by way of omission. PW 6 – Dr. Deepa
deposes about Bharti informing her that the accused was suspecting her
character and chastity. Curiously, if Bharti could inform PW 6 – Dr. Deepa,
we find it inexplicable as to why Bharti did not inform PW 1 – Mukunda or
PW 2 – Sulbha. None of them referred to any ill-treatment by the accused.
In any event the said statement of Bharti made to PW 6 -Deepa has been
elicited by way of omission. Thus, on a overall assessment of the evidence
of the prosecution witnesses, we find that apart from bald allegations that
Bharti was ill-treated or was harassed, in our opinion, would not amount to
cruelty within the meaning of Section 498-A of the IPC. The recitals in the
letters by themselves would not amount to proof that Bharti was indeed
subjected to cruelty without there being other corroborative evidence in the
form of disclosures being made by Bharti to other prosecution witnesses.
All the prosecution witnesses only depose about ill-treatment without
specifying nature of the ill-treatment which was given by the accused to
deceased Bharti.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 771 OF 1997
(Against Conviction)
Dr. Balwant Daulat Patil
Versus
The State of Maharashtra .. Respondent
CORAM: P. V. HARDAS &
A. S. GADKARI, JJ.
Pronounced On : APRIL 08, 2014
Citation;2014 ALLMR(CRI)1818
1. Criminal Appeal No. 771 of 1997 has been filed by the
appellant, Original Accused No. 1, who stands convicted for offence
punishable under Section 498-A of the Indian Penal Code and sentenced to
SI for six months and to pay a fine of Rs.1000/-, in default of which to
undergo further SI for two months, by the Additional Sessions Judge,
Nashik, by judgment dated 12/12/1997, in Sessions Case No. 49 of 1993.
Criminal Appeal No. 468 of 1998 has been filed by the
appellant-State against acquittal of respondent/original accused no.1 for
offence punishable under Sections 302, 306 and 304-B read with Section
34 of the IPC. Criminal Revision Application No. 21 of 1998 has been
filed by the applicant/original complainant against acquittal of
respondents/original accused nos.1 to 5. Since the proceedings before us
arise from the same judgment of the trial court, they are being disposed of
by this common judgment.
2. Facts, as are necessary for the decision of the appeals and the
revision application, may briefly be stated thus:-
PW 9 – PSI Rajendra Bhamare who, on 2/6/1989, was attached
to Satana Police Station, received the FIR which was registered as 0
number. On the basis of the said FIR lodged by PW 1 – Mukund Patil, he
registered an offence vide Crime No. 94 of 1989 under Sections 302, 498-A
read with Section 34 of the IPC. The aforesaid FIR had been scribed by
Head Constable Shinde of the Bhadrakali Police Station. On being
entrusted with the investigation, on the basis of the FIR at Exh. 90, he
visited the scene of the incident and drew the scene of the incident
panchanama on 3/6/1989 at Exh. 17. He recorded the statements of
witnesses. On 6th and 7th June, 1989, he recorded the statements of other
witnesses and while drawing the scene of the incident panchanama, he had
seized one match-box, kerosene plastic can, pieces of burnt clothes and half
burnt match-stick. The sketch of the incident was drawn by the Circle
Officer at Exh. 82. The inquest panchanama had also been received along
with the case papers from the Sakharda Police Station. The investigation
was thereafter entrusted to PSI Pardeshi. Meanwhile, the seized articles
were referred to C.A.
PW 10 – PSI Jaising Pardeshi, who was attached to the CID
Branch, was entrusted with further investigation of Crime No. 94 of 1989.
On 28/6/1989, he recorded the statements of witnesses and on 24/7/1989
recorded the supplementary statement of the complainant. On 26/6/1989
he had also recorded the supplementary statement of PW 2 – Sulbha. On
3/11/1989 he handed over the investigation to PSI Ahire. He had seized the
natural handwriting of deceased Bharti from Pachora College at Jalgaon.
PW 8 – Dy. S.P. Ramchandra Jadhav, who was Dy. S.P. CID,
State Crime at Nashik, was entrusted with the further investigation of
Crime No. 94 of 1989. He verified the statements of the witnesses which
had been recorded by the Investigating Officers. He referred the
questioned documents along with natural handwriting for comparison to
the Handwriting Expert, Pune on 18/11/1989. Further to the completion of
investigation, a charge-sheet against the accused was filed.
PW 5 – Dr. Sharad Wagh, who was serving as the Medical
Officer at the Cottage Hospital, examined Bharti, who had been brought by
a taxi at about 12.25 p.m. On examining her, he found that she had
sustained burns. Accused No.1 came to the Cottage Hospital after some
time on his motorcycle. PW 5 – Dr. Wagh gave tetanus toxoid injection to
Bharti, who, while giving the injection had remonstrated PW 5 – Dr. Wagh
as to why she was being injected. Saline was also administered and other
life saving drugs were also administered to Bharti. Since there was no
arrangement for treating the burnt patient at Satana, PW 5 – Dr. Wagh
advised that Bharti be taken to the Civil Hospital at Nashik. The history
which was recorded is at Exh. 80. The history at Exh. 80 reflects that
injured Bharti had been brought at about 12.45 p.m. and her general
condition was poor and pulse was not palpable at wrist. The history that
was given was burns due to flames and the history was given by persons
who had accompanied Bharti. Bharti had sustained 92% burns and was,
therefore, referred to the Civil Hospital.
Postmortem on the dead body of deceased Bharti was performed
by the Medical Officer at the Civil Hospital, Nashik. The postmortem
report is at Exh. 162. As per the postmortem report, Bharti had sustained
93% burns which were deep extensive burns. As per the postmortem report
at Exh. 162, the cause of death was deep extensive burns 93% with shock
with cardio respiratory failure.
3. On committal of the case to Court of Sessions, trial court vide
Exh. 43 framed charge against accused nos.1 to 5 for offence punishable
under Sections 304-B, 302 read with Section 34, 306 and 498-A of IPC.
The accused denied their guilt and claimed to be tried. Prosecution, in
support of its case examined 10 witnesses. The defence of the accused was
of denial. The trial court upon appreciation of the evidence of the
prosecution, convicted and sentenced the appellant/original accused no.1 as
afore-stated, while acquitting the other accused. The accused no.1 thus
being aggrieved by his conviction and sentence has filed Criminal Appeal
No. 771 of 1997, while the State has filed Criminal Appeal No. 468 of
1998 being aggrieved by the acquittal of the respondent/original accused
no.1 for offences punishable under Sections 302, 306 and 304-B read with
Section 34 of IPC. The complainant has filed Criminal Revision
Application No. 21 of 1998 questioning the acquittal of the
respondents/accused.
4. We have heard Mr. S. V. Marwadi, learned counsel for the
appellant in Criminal Appeal No. 771 of 1997, learned APP on behalf of
the appellant – State in Criminal Appeal No. 468 of 1998 and Mr. Nitin
Pradhan, learned counsel for the applicant in Criminal Revision
Application No. 21 of 1998.
5. In order to effectively deal with the submissions advanced
before us by the learned counsel for the parties, it would be useful to refer
to the evidence of the prosecution witnesses.
6. Prosecution has examined PW 1 – Mukunda, father of deceased
Bharti, who deposes that Bharti was married to accused no.1 – Balwant on
27/5/1984 at Pachora. Accused No.1 was a B.A.M.S. and was practicing at
Satara. PW 1 – Mukunda had spent for the marriage and had also agreed to
pay an amount of Rs.20,000/- for purchase of motorcycle and had also
agreed to give money for certain other purposes in the marriage.
According to PW 1 – Mukunda after about a month of the marriage he had
taken his daughter to the house of the accused. 4 to 5 days thereafter, he
and PW 2 – Sulbha had gone to the house of the accused. Certain other
articles were also gifted in the marriage. According to PW 1 – Mukunda,
accused no. 2- Narmadabai had pleaded with PW 1 – Mukunda that she
was in need of money for purchasing agricultural land and, therefore, PW 1
– Mukunda should advance the money. According to PW 1 – Mukunda, he
informed her that he would not be in a position to advance the money to the
accused for purchase of the land. According to PW 1 – Mukunda, the
accused had also requested that a dinning table be provided to deceased
Bharti. PW 1 – Mukunda did not promise to give the dinning table.
According to PW 1 – Mukunda, thereafter, Bharti was subjected to illtreatment.
Bharti addressed letters at Exhs. 69, 70, 71, 72, 73, 74, 75, 76,
77, 78 and 79. According to PW 1 – Mukunda on 15/10/1984, he had
received a letter informing him that Bharti had been assaulted by fist and
kick blows by accused no.1. Mukunda had requested Bharti to accompany
him to his house but Bharti had declined as there was examination and it
would be inappropriate on her part to accompany PW 1 – Mukunda.
According to PW 1 – Mukunda thereafter he had sent his son who had
brought Bharti to his house. According to PW 1 – Mukunda he had made
several attempts at ensuring that the accused had treated Bharti well. PW 1
– Mukunda further states that he along with one Shivaji Bhamare had gone
to the house of the accused at Satana. Accused No. 2, it appears, had said
that they would bring Bharti back to their house only in the event PW 1 –
Mukunda gave in writing that he would not complain if something went
wrong with Bharti as Bharti was suffering from fits. Accordingly, on
19/4/1985, PW 1 – Mukunda accompanied by his wife and Bharti went to
the house of accused no.1 at Satana. It appears that the accused had agreed
for getting Bharti medically examined at Nashik. Subsequently, Bapu
Bhamare informed PW 1 – Mukunda that they need not go to Nashik as the
accused had agreed to take Bharti to Vajirkhede. Accordingly, PW 1 –
Mukunda took Bharti to Nashik on 3/5/1985. They waited for accused no.1
to come, but accused no.1 did not come and, therefore, PW 1 – Mukunda
returned back to Pachora. It appears that the accused were not willing to
take Bharti because Bharti was suffering from fits. Accused No.2
specifically desired that she should be satisfied about health of Bharti. PW
1 – Mukunda was transferred to Dhule. It further appears that the accused
had requested Mukunda to advance loan to accused no.1 for constructing a
bungalow. PW 1 – Mukunda informed them that he did not have money
for giving loan to accused no.1. After about two days, accused no.1 came
to Dhule and pleaded with PW 1 – Mukunda to advance him money for the
purpose of construction of the bungalow. Accused No.1 further informed
PW 1 – Mukunda that he intended to sell the ornaments in order to raise
money for the construction of bungalow. PW 1 – Mukunda promised him to
advance money to him to be paid in convenient installments. Accused No.1
and Bharti thereafter went to Vajirkhede.
7. In October, 1985, Mukunda was invited to Vajirkhede as there
was a discussion in respect of construction of the hospital of accused no.1.
Due to pressure of work, PW 1 – Mukunda could not go to Satana. 15 days
thereafter the accused had come to Dhule but PW 1 – Mukunda was not
available. On his return, he was informed by PW 2 – Sulbha that accused
no.5 had asked for Rs.50,000/- for the purpose of construction of the
hospital. In Diwali of 1985, Bharti was brought to Dhule and at that time
he she was in the family way. According to PW 1 – Mukunda after Bharti
returned to the house of the accused for a period of two to three months,
there was no ill-treatment. On 23/4/1986 Bharti gave birth to a daughter.
After delivery, Bharti returned back to Vajirkhede and was residing with
accused no.1 at Satana. According to PW 1 – Mukunda, the accused used
to ill-treat Bharti.
8. The second daughter of PW 1 – Mukunda was married in May
1987 and in the marriage PW 1 – Mukunda gifted a colour T.V. to his
second daughter. According to PW 1 – Mukunda, accused no.1 was
aggrieved because colour T.V. had not been gifted to him. Bharti had
delivered a boy in June 1987. According to PW 1 – Mukunda, Bharti was
ill-treated on account of not giving of a colour T.V. Set. In Diwali of 1987,
the accused and Bharti had come to Nashik where PW 1 – Mukunda was
transferred and insisted on a colour T.V. Set being provided. PW 1 –
Mukunda assured accused no.1 that he would give them the amount equal
to the black and white T.V. set and the rest of the amount would be borne
by accused no.1. PW 1 – Mukunda, accordingly, purchased the colour
T.V. worth Rs.10,800/-. According to PW 1 – Mukunda the accused,
however, did not pay the amount as promised. According to PW 1 –
Mukunda, he had also not demanded the money from accused no.1. In
June 1988, accused no.1 visited Nashik and had requested PW 1 –
Mukunda to come to Satana in connection with the purchase of the plot.
PW 1 – Mukunda had accordingly gone to Satana and accused no.1 had
demanded the amount for purchasing of the plot. PW 1 – Mukunda
contacted his friend Mr. Kharote who advised that the plot chosen by
accused no.1 was not suitable and he would find out another suitable plot.
According to PW 1 – Mukunda, Bharti was ill-treated thereafter. PW 1 –
Mukunda also deposes that when Bharti and accused no.1 had visited him
at Nashik, Bharti had complained that she was ill-treated. According to PW
1 – Mukunda, in August, 1988, accused no.1 had come to Nashik and had
paid the difference of the price of the colour T.V. set and had offered
Rs.5000/- which PW 1 – Mukunda declined to accept. Accused No.1,
however, insisted and PW 1 – Mukunda thereafter accepted the amount of
Rs.5000/-.
9. According to PW 1 – Mukunda in August, 1988, he started
construction of his house at Nashik and had asked loan of Rs.15,000/- from
the accused. Accused No.1 had accordingly sent the DD in the name of the
son of PW 1 – Mukunda in August 1988. After the loan for the
construction of the house of PW 1 – Mukunda was sanctioned, PW 1 –
Mukunda sent a draft for Rs.20,000/- along with his son to accused no.1.
The amount of Rs.20,000/- included the loan of Rs.15000/- given by
accused no.1 as well as the amount of Rs.5000/- paid by accused no.1
towards the difference in the cost of the colour T.V. Accused No.1,
however, declined to accept the DD for Rs.20,000/- and asked the son of
PW 1 – Mukunda that only Rs. 15000/- be paid. Accordingly, PW 1 –
Mukunda thereafter sent a DD for Rs.15000/- to accused no.1. According
to PW 1 – Mukunda, the accused thereafter again started ill-treating Bharti.
In one instance, Bharti had complained that accused no.1 used to say that
since her father was well-off, PW 1 – Mukunda should gift something to
the grandson. PW 1 – Mukunda deposes that on one occasion, the accused
had come and had demanded Rs.1,00,000/-. Mukunda had informed the
accused no.1 that he did not have that much money and would be willing to
give Rs.20,000/-. Accused No.1 got annoyed and went away. PW 1 –
Mukunda further deposes that on one occasion Bharti had telephoned and
had informed him that “she was manhandled by accused no.1 and,
therefore, she had not attended the marriage at Deola”. PW 1 – Mukunda
further deposes that when he had gone to the house of accused no.1, Bharti
had informed him that PW 1 – Mukunda should not pay the amount to
accused no.1.
10. In respect of the incident, PW 1 – Mukunda deposes that on
2/6/1989 at about 2.30 p.m. he had learnt that Bharti was admitted at Civil
Hospital, Nashik. Along with family members, he had gone to the Civil
Hospital and had learnt that Bharti had succumbed to her injuries. On the
same day, he lodged his report at Exh. 90.
11. In cross-examination, he has admitted that the letters at Exhs. 92
and 93 are in the handwriting of Bharti. He has also admitted that letter at
Exh. 94 dated 27/9/1988 is in the handwriting of Madhuri i.e. daughter of
accused no.3. He has admitted that the certificate issued by Dr. Wadia is at
Exh. 113. He has admitted that in December, 1982, he had gone to Dr.
Wadia for his examination. He has admitted that he had not got Bharti
examined by Dr. Sardesai. Bharti was examined by Dr. Gangwal from
Pune in 1982-83. He has admitted that Dr. Gangwal had advised him to get
Bharti examined by Dr. Waida. The medical case papers of examination of
Bharti by Dr. Wadia is at Exh. 114. The other documents are at Exhs. 115
and 116. The certificates issued by Dr. Gangwal is at Exhs. 118 and 119.
He has admitted that earlier marriage of Bharti was settled with a boy from
Aurangabad, but the marriage proposal was broken sometime in 1982. He
has admitted that cross-examination as true that the medical case papers
reveal that the temporal lobe was damaged. He has denied the suggestion
that because of this the earlier marriage of Bharti was broken. He has
admitted that the doctor had advised that the deceased was not serious and
there was no problem if Bharti was married. He has admitted that he had
informed the relatives of accused no.1 in respect of ailment of Bharti as
well as the break up of the proposed marriage of Bharti. He has further
admitted as correct that mother of accused no.1, as also the other relatives,
were demanding a writing from him on a stamp paper that he would not
complain in case Bharti get attack of fits and does something during those
fits. He has also admitted that the accused were demanding the written
document in order to safeguard their interest if Bharti suffers from some
serious injuries because of fits. He has also admitted as correct that Bharti
was not used to working in the agricultural land. He has further admitted as
correct that the accused were agriculturists who used to get the work done
through the labourers but used to supervise the agricultural operations.
12. Omission has been duly proved that he had not stated about
demand for a dinning table and other articles. He has admitted not to have
stated in the FIR about paying Rs.20,000/- for motorcycle and Rs.10,000/-
for other incidental purpose. He has admitted that at the time of
retirement, he was drawing salary of Rs.6000/-. Omission has also been
proved that he had not stated about money being demanded for construction
of bungalow for accused no.1. Omission has also been elicited that he had
not stated about accused no.1 informing him that he would sell the
ornaments of Bharti and about PW 1 – Mukunda advising him not to do so
and that Mukunda would pay him Rs.15,000/- to Rs.20,000/-. Omission
has also been duly proved that he had not stated about accused no.1
telephoning him to come to Satana for paying the money for the
construction of the hospital of accused no.1. Omission is also proved that
he had not stated that his wife had informed him that accused no.5 was
demanding Rs.50,000/-. Omission is also proved that he had not stated that
accused no.1 demanded colour T.V. from him. Omission is also proved
that he had not stated that accused no.1 had called him in June 1988 and
had asked him to give money for purchase of plot and that one Kharote had
informed that the plot was not suitable.
13. Prosecution has examined PW 2 – Sulbha, mother of deceased
Bharti. According to PW 2 – Sulbha, Bharti had disclosed that she was
assaulted by shoes by accused no.1 and that accused no.1 used to make her
sleep in the kitchen. In cross-examination, omission has been elicited that
she had not stated about accused no.2 demanding money for purchasing
agricultural field. Omission has also been elicited that she had not stated in
her previous statement that Bharti had informed her that she was assaulted
by accused no.1 by shoes. She has admitted that in none of the letters
addressed to accused no.1 they had made a grievance about ill-treatment or
the accused asking for money. Omission has been duly proved that she
had not stated in her previous statement about accused no.1 demanding
money for purchase of plot. She has admitted that in none of the letters
addressed by her, she had made any grievance about any ill-treatment being
given to Bharti or the accused making any demand for money.
14. Prosecution has examined PW 3 – Prabhakar who was present
when the demand for money for the construction of the hospital was made
by accused no.1 to PW 1 – Mukunda on phone. PW 3 – Prabhakar states
that PW 1 – Mukunda had informed him that accused no.5 was demanding
money for the purpose of construction of the hospital. The aforesaid
evidence is completely hear-say evidence as PW 1 – Mukunda does not
depose about informing PW 3 – Prabhakar about it.
15. Prosecution has examined PW 4 – Nayamanhali, who claims to
be present during the negotiations for taking deceased Bharti back to the
house of the accused. He has admitted in cross-examination that after
talking to accused no.1, he learnt that Bharti was suffering from fits. He
admits that he had also learnt that Bharti was suffering from fits from one
Hire, who was relative of PW 1 – Mukunda. He has also admitted that
during the meeting at Nashik, accused no.3 was complaining that Bharti
was suffering from fits. He has also admitted as correct that the accused
no.3 was demanding some writing on stamp paper.
16. Prosecution has examined PW 6 – Dr. Deepa Pawar who claims
that deceased Bharti was her friend since childhood. PW 6 – Dr. Deepa
Pawar further deposes that she used to meet Bharti frequently and had once
inquired as to why Bharti was nervous. According to PW 6 – Dr. Deepa
Bharti had disclosed to her that she was being harassed by accused no.1 and
her mother-in-law. She has also deposes that Bhati had informed her that
accused no.1 was demanding money for purchasing T.V. and a plot.
Bharti had also disclosed to her that accused no.1 was not giving her
ornaments for wearing. According to PW 6 -Dr. Deepa about two months
prior to death of Bharti, Bharti had disclosed to her that accused no.1 had
questioned her as to why Bharti was standing by putting hand on the
shoulder. According to Dr. Deepa, the accused no.1 was suspecting the
character of deceased Bharti. In cross-examination, omission has been
elicited that she had not stated in her previous statement that accused no.1
was not permitting to Bharti to wear ornaments. Similarly, omission has
been elicited that she had not stated about Bharti disclosing to her just two
months prior to the incident about accused suspecting her character and that
accused no.1 had questioned her as to why she was talking by keeping hand
on the shoulder. She has admitted that when she had met Bharti, Bharti
had disclosed to her that her father had purchased a T.V. set for accused
no.1.
17. Prosecution has examined PW 7 - Shivaji, who was also present
at the negotiations for taking Bharti back to the house of the accused. This
witness was declared hostile by the prosecution.
18. The evidence of PW 1 – Mukunda and the evidence of PW 2 –
Sulbha only reveals that whenever Bharti had come to their house, Bharti
had only complained that she was “ill-treated” or “harassed”. Though
Bharti had occasions to come to the house of PW 1 – Mukunda and
Mukunda claims that Bharti had informed him, yet neither PW 1 –
Mukunda nor PW 2 – Sulbha depose about specific instances of cruelty.
The allegations regarding demand of money are so vague and there are
several material omissions in that regard. From the evidence of PW 1 –
Mukunda and the evidence of PW 2 – Sulbha, we do not find that the
prosecution has led any evidence which would indicate that the accused had
ill-treated Bharti and the ill-treatment was of such a degree as would drive
Bharti to either commit suicide or cause an injury to herself. In fact, PW 1
– Mukunda admits that the accused had advanced him loan for construction
of his own house and the accused had sent the DD immediately when a
request was made by PW 1 – Mukunda. Even in respect of the construction
of the house/hospital, PW 1 – Mukunda has admitted that the accused had
asked for a loan. The disputes between accused no.1 and deceased Bharti
were the normal differences which arise between husband and wife and
which would be the normal wear and tear of married life. The evidence
does not conclusively establish that deceased Bharti was ill-treated and the
ill-treatment was of such a degree as would amount to ill-treatment within
the meaning of Section 498-A of the IPC. The reluctance of the accused to
take Bharti to their house was obvious from the fact that deceased Bharti
was suffering from fits and the accused had apprehended that in the event
Bharti causes some injuries to herself, the accused would be blamed and for
that the accused were insisting PW 1 – Mukunda to execute a stamp paper
which would exonerate the accused in the event Bharti sustained some
injuries while suffering from fits. The evidence does not, in our opinion,
lead to an inference that Bharti was subjected to ill-treatment and the illtreatment
was on account of demand for payment of dowry or the illtreatment
was because of failure of PW 1 – Mukunda to meet the illegal
demands of the accused. There is no evidence that soon before her death,
Bharti was ill-treated. The instances, as narrated by PW 6 – Dr. Deepa in
her evidence, have been elicited by way of omission. PW 6 – Dr. Deepa
deposes about Bharti informing her that the accused was suspecting her
character and chastity. Curiously, if Bharti could inform PW 6 – Dr. Deepa,
we find it inexplicable as to why Bharti did not inform PW 1 – Mukunda or
PW 2 – Sulbha. None of them referred to any ill-treatment by the accused.
In any event the said statement of Bharti made to PW 6 -Deepa has been
elicited by way of omission. Thus, on a overall assessment of the evidence
of the prosecution witnesses, we find that apart from bald allegations that
Bharti was ill-treated or was harassed, in our opinion, would not amount to
cruelty within the meaning of Section 498-A of the IPC. The recitals in the
letters by themselves would not amount to proof that Bharti was indeed
subjected to cruelty without there being other corroborative evidence in the
form of disclosures being made by Bharti to other prosecution witnesses.
All the prosecution witnesses only depose about ill-treatment without
specifying nature of the ill-treatment which was given by the accused to
deceased Bharti.
19. In respect of Section 302 of the IPC, we find that there is
absolutely no evidence in support of the said charge. The judgment of the
trial court reveals that even the Public Prosecutor in the trial court had
conceded that there was no evidence in respect of the offence punishable
under Section 302 of the IPC. In respect of the offence punishable under
Section 306 of the IPC, we find that there is no evidence of the accused
instigating deceased Bharti to commit suicide. We have earlier observed, in
our judgment, that there is no evidence in respect of an offence punishable
under Section 498-A of the IPC and consequently we find that there is no
evidence at all that the accused had instigated deceased Bharti to commit
suicide or had in any manner ill-treated Bharti thereby creating a situation
which would drive deceased Bharti to commit suicide.
20. In our opinion, therefore, the prosecution has miserably failed to
prove the offence alleged against the accused. There is no evidence that
soon before her death, Bharti was subjected to ill-treatment on account of
any demand being made for dowry. The trial court has appreciated the
evidence and has given reasons for acquitting the accused for offence
punishable under Sections 302, 306, 304-B of the IPC and acquitting the
other accused, except accused no.1, for offence punishable under Section
498-A of the IPC. With the assistance of the learned counsel for the parties,
we have minutely perused the findings recorded by the trial court. Upon
such perusal, according to us, the view taken by the trial court appears to be
a possible view to be taken on the basis of the evidence on record. We do
not notice any perversity in the reasoning of the trial court to warrant any
interference in an appeal against acquittal at the behest of the State. So far
as conviction of accused no.1 for offence punishable under Section 498-A
of the IPC is concerned, for the reasons stated above, according to us,
accused no.1 would be entitled to be acquitted by giving the benefit of
doubt as the evidence adduced by the prosecution is short of proving the
offence against the accused beyond reasonable doubt.
21. Mr. Nitin Pradhan, learned counsel for the original complainant
in Criminal Revision Application No. 21 of 1998 has urged before us that
PW 5 – Dr. Wagh had deliberately not informed the police about medicolegal
case when he had initially examined Bharti. According to
Mr. Pradhan since the investigation was completely flawed, the accused
would not be entitled to be given the benefit of doubt. According to us,
there is no material on record to record a finding that PW 5 – Dr. Wagh had
deliberately not informed the police. It is true that PW 5 – Dr. Wagh has
admitted that he had informed the police after four hours, but an
interference cannot be drawn that he had deliberately not informed the
police as accused no.1 was his friend. Mr. Pradhan has referred to the
judgment of the Supreme Court in State of M.P. vs. Mansingh and ors.
[(2003) 10 SCC 414]. The Supreme Court in the said judgment has held
that deficiencies in the investigation cannot be a ground for discarding the
prosecution version which was otherwise authentic, credible and cogent.
Mr. Pradhan has also referred to the judgment of the Supreme Court in
Allarakha K. Mansuri vs. State of Gujarat [(2002) 3 SCC 57]. In the said
judgment, the Supreme Court has held that defective investigation by itself
cannot be a ground for acquittal. Mr. Pradhan also referred to the judgment
of the Supreme Court in Chandrakant Luxman vs. State of Maharashtra
[(1974) 3 SCC 626]. The Supreme Court in the said judgment has also held
that laxity by the Investigating Officer in causing certain inconsistencies in
the prosecution case cannot inure to the benefits of the accused when the
story of the prosecution witnesses was consistent. The ratio of the aforesaid
judgments, in our opinion, is not applicable to the facts of the present case.
We have not given benefit of doubt to accused on the ground of infirmities
or deficiencies in the investigation. On a overall assessment of the
evidence of the prosecution, we have reached to a conclusion that the
prosecution has failed to prove the offence against the accused beyond
reasonable doubt. In that view of the matter, therefore, the ratio of the said
judgments would not apply to the facts of the present case.
22. Accordingly Criminal Appeal No. 771 of 1997 is allowed and
conviction and sentence of the appellant-original accused no.1 is hereby
quashed and set aside and he is acquitted of the offence with which he was
charged and convicted. Fine, if paid by the appellant, be refunded to him.
Bail bond of appellant/original accused no.1 stands cancelled.
Criminal Appeal No. 468 of 1998 filed by the appellant-State
against acquittal of respondent/original accused no.1 and Criminal Revision
Application No. 21 of 1998 filed by the applicant-original complainant
against acquittal of respondents/ original accused nos.1 to 5 are dismissed,
confirming the acquittal of the respondents/accused. Bail bonds of
respondents/accused stand cancelled.
(A. S. GADKARI, J.) (P. V. HARDAS, J.)
Print Page
Sulbha only reveals that whenever Bharti had come to their house, Bharti
had only complained that she was “ill-treated” or “harassed”. Though
Bharti had occasions to come to the house of PW 1 – Mukunda and
Mukunda claims that Bharti had informed him, yet neither PW 1 –
Mukunda nor PW 2 – Sulbha depose about specific instances of cruelty.
The allegations regarding demand of money are so vague and there are
several material omissions in that regard. From the evidence of PW 1 –
Mukunda and the evidence of PW 2 – Sulbha, we do not find that the
prosecution has led any evidence which would indicate that the accused had
ill-treated Bharti and the ill-treatment was of such a degree as would drive
Bharti to either commit suicide or cause an injury to herself. In fact, PW 1
– Mukunda admits that the accused had advanced him loan for construction
of his own house and the accused had sent the DD immediately when a
request was made by PW 1 – Mukunda. Even in respect of the construction
of the house/hospital, PW 1 – Mukunda has admitted that the accused had
asked for a loan. The disputes between accused no.1 and deceased Bharti
were the normal differences which arise between husband and wife and
which would be the normal wear and tear of married life. The evidence
does not conclusively establish that deceased Bharti was ill-treated and the
ill-treatment was of such a degree as would amount to ill-treatment within
the meaning of Section 498-A of the IPC. The reluctance of the accused to
take Bharti to their house was obvious from the fact that deceased Bharti
was suffering from fits and the accused had apprehended that in the event
Bharti causes some injuries to herself, the accused would be blamed and for
that the accused were insisting PW 1 – Mukunda to execute a stamp paper
which would exonerate the accused in the event Bharti sustained some
injuries while suffering from fits. The evidence does not, in our opinion,
lead to an inference that Bharti was subjected to ill-treatment and the illtreatment
was on account of demand for payment of dowry or the illtreatment
was because of failure of PW 1 – Mukunda to meet the illegal
demands of the accused. There is no evidence that soon before her death,
Bharti was ill-treated. The instances, as narrated by PW 6 – Dr. Deepa in
her evidence, have been elicited by way of omission. PW 6 – Dr. Deepa
deposes about Bharti informing her that the accused was suspecting her
character and chastity. Curiously, if Bharti could inform PW 6 – Dr. Deepa,
we find it inexplicable as to why Bharti did not inform PW 1 – Mukunda or
PW 2 – Sulbha. None of them referred to any ill-treatment by the accused.
In any event the said statement of Bharti made to PW 6 -Deepa has been
elicited by way of omission. Thus, on a overall assessment of the evidence
of the prosecution witnesses, we find that apart from bald allegations that
Bharti was ill-treated or was harassed, in our opinion, would not amount to
cruelty within the meaning of Section 498-A of the IPC. The recitals in the
letters by themselves would not amount to proof that Bharti was indeed
subjected to cruelty without there being other corroborative evidence in the
form of disclosures being made by Bharti to other prosecution witnesses.
All the prosecution witnesses only depose about ill-treatment without
specifying nature of the ill-treatment which was given by the accused to
deceased Bharti.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 771 OF 1997
(Against Conviction)
Dr. Balwant Daulat Patil
Versus
The State of Maharashtra .. Respondent
CORAM: P. V. HARDAS &
A. S. GADKARI, JJ.
Pronounced On : APRIL 08, 2014
Citation;2014 ALLMR(CRI)1818
1. Criminal Appeal No. 771 of 1997 has been filed by the
appellant, Original Accused No. 1, who stands convicted for offence
punishable under Section 498-A of the Indian Penal Code and sentenced to
SI for six months and to pay a fine of Rs.1000/-, in default of which to
undergo further SI for two months, by the Additional Sessions Judge,
Nashik, by judgment dated 12/12/1997, in Sessions Case No. 49 of 1993.
Criminal Appeal No. 468 of 1998 has been filed by the
appellant-State against acquittal of respondent/original accused no.1 for
offence punishable under Sections 302, 306 and 304-B read with Section
34 of the IPC. Criminal Revision Application No. 21 of 1998 has been
filed by the applicant/original complainant against acquittal of
respondents/original accused nos.1 to 5. Since the proceedings before us
arise from the same judgment of the trial court, they are being disposed of
by this common judgment.
2. Facts, as are necessary for the decision of the appeals and the
revision application, may briefly be stated thus:-
PW 9 – PSI Rajendra Bhamare who, on 2/6/1989, was attached
to Satana Police Station, received the FIR which was registered as 0
number. On the basis of the said FIR lodged by PW 1 – Mukund Patil, he
registered an offence vide Crime No. 94 of 1989 under Sections 302, 498-A
read with Section 34 of the IPC. The aforesaid FIR had been scribed by
Head Constable Shinde of the Bhadrakali Police Station. On being
entrusted with the investigation, on the basis of the FIR at Exh. 90, he
visited the scene of the incident and drew the scene of the incident
panchanama on 3/6/1989 at Exh. 17. He recorded the statements of
witnesses. On 6th and 7th June, 1989, he recorded the statements of other
witnesses and while drawing the scene of the incident panchanama, he had
seized one match-box, kerosene plastic can, pieces of burnt clothes and half
burnt match-stick. The sketch of the incident was drawn by the Circle
Officer at Exh. 82. The inquest panchanama had also been received along
with the case papers from the Sakharda Police Station. The investigation
was thereafter entrusted to PSI Pardeshi. Meanwhile, the seized articles
were referred to C.A.
PW 10 – PSI Jaising Pardeshi, who was attached to the CID
Branch, was entrusted with further investigation of Crime No. 94 of 1989.
On 28/6/1989, he recorded the statements of witnesses and on 24/7/1989
recorded the supplementary statement of the complainant. On 26/6/1989
he had also recorded the supplementary statement of PW 2 – Sulbha. On
3/11/1989 he handed over the investigation to PSI Ahire. He had seized the
natural handwriting of deceased Bharti from Pachora College at Jalgaon.
PW 8 – Dy. S.P. Ramchandra Jadhav, who was Dy. S.P. CID,
State Crime at Nashik, was entrusted with the further investigation of
Crime No. 94 of 1989. He verified the statements of the witnesses which
had been recorded by the Investigating Officers. He referred the
questioned documents along with natural handwriting for comparison to
the Handwriting Expert, Pune on 18/11/1989. Further to the completion of
investigation, a charge-sheet against the accused was filed.
PW 5 – Dr. Sharad Wagh, who was serving as the Medical
Officer at the Cottage Hospital, examined Bharti, who had been brought by
a taxi at about 12.25 p.m. On examining her, he found that she had
sustained burns. Accused No.1 came to the Cottage Hospital after some
time on his motorcycle. PW 5 – Dr. Wagh gave tetanus toxoid injection to
Bharti, who, while giving the injection had remonstrated PW 5 – Dr. Wagh
as to why she was being injected. Saline was also administered and other
life saving drugs were also administered to Bharti. Since there was no
arrangement for treating the burnt patient at Satana, PW 5 – Dr. Wagh
advised that Bharti be taken to the Civil Hospital at Nashik. The history
which was recorded is at Exh. 80. The history at Exh. 80 reflects that
injured Bharti had been brought at about 12.45 p.m. and her general
condition was poor and pulse was not palpable at wrist. The history that
was given was burns due to flames and the history was given by persons
who had accompanied Bharti. Bharti had sustained 92% burns and was,
therefore, referred to the Civil Hospital.
Postmortem on the dead body of deceased Bharti was performed
by the Medical Officer at the Civil Hospital, Nashik. The postmortem
report is at Exh. 162. As per the postmortem report, Bharti had sustained
93% burns which were deep extensive burns. As per the postmortem report
at Exh. 162, the cause of death was deep extensive burns 93% with shock
with cardio respiratory failure.
3. On committal of the case to Court of Sessions, trial court vide
Exh. 43 framed charge against accused nos.1 to 5 for offence punishable
under Sections 304-B, 302 read with Section 34, 306 and 498-A of IPC.
The accused denied their guilt and claimed to be tried. Prosecution, in
support of its case examined 10 witnesses. The defence of the accused was
of denial. The trial court upon appreciation of the evidence of the
prosecution, convicted and sentenced the appellant/original accused no.1 as
afore-stated, while acquitting the other accused. The accused no.1 thus
being aggrieved by his conviction and sentence has filed Criminal Appeal
No. 771 of 1997, while the State has filed Criminal Appeal No. 468 of
1998 being aggrieved by the acquittal of the respondent/original accused
no.1 for offences punishable under Sections 302, 306 and 304-B read with
Section 34 of IPC. The complainant has filed Criminal Revision
Application No. 21 of 1998 questioning the acquittal of the
respondents/accused.
4. We have heard Mr. S. V. Marwadi, learned counsel for the
appellant in Criminal Appeal No. 771 of 1997, learned APP on behalf of
the appellant – State in Criminal Appeal No. 468 of 1998 and Mr. Nitin
Pradhan, learned counsel for the applicant in Criminal Revision
Application No. 21 of 1998.
5. In order to effectively deal with the submissions advanced
before us by the learned counsel for the parties, it would be useful to refer
to the evidence of the prosecution witnesses.
6. Prosecution has examined PW 1 – Mukunda, father of deceased
Bharti, who deposes that Bharti was married to accused no.1 – Balwant on
27/5/1984 at Pachora. Accused No.1 was a B.A.M.S. and was practicing at
Satara. PW 1 – Mukunda had spent for the marriage and had also agreed to
pay an amount of Rs.20,000/- for purchase of motorcycle and had also
agreed to give money for certain other purposes in the marriage.
According to PW 1 – Mukunda after about a month of the marriage he had
taken his daughter to the house of the accused. 4 to 5 days thereafter, he
and PW 2 – Sulbha had gone to the house of the accused. Certain other
articles were also gifted in the marriage. According to PW 1 – Mukunda,
accused no. 2- Narmadabai had pleaded with PW 1 – Mukunda that she
was in need of money for purchasing agricultural land and, therefore, PW 1
– Mukunda should advance the money. According to PW 1 – Mukunda, he
informed her that he would not be in a position to advance the money to the
accused for purchase of the land. According to PW 1 – Mukunda, the
accused had also requested that a dinning table be provided to deceased
Bharti. PW 1 – Mukunda did not promise to give the dinning table.
According to PW 1 – Mukunda, thereafter, Bharti was subjected to illtreatment.
Bharti addressed letters at Exhs. 69, 70, 71, 72, 73, 74, 75, 76,
77, 78 and 79. According to PW 1 – Mukunda on 15/10/1984, he had
received a letter informing him that Bharti had been assaulted by fist and
kick blows by accused no.1. Mukunda had requested Bharti to accompany
him to his house but Bharti had declined as there was examination and it
would be inappropriate on her part to accompany PW 1 – Mukunda.
According to PW 1 – Mukunda thereafter he had sent his son who had
brought Bharti to his house. According to PW 1 – Mukunda he had made
several attempts at ensuring that the accused had treated Bharti well. PW 1
– Mukunda further states that he along with one Shivaji Bhamare had gone
to the house of the accused at Satana. Accused No. 2, it appears, had said
that they would bring Bharti back to their house only in the event PW 1 –
Mukunda gave in writing that he would not complain if something went
wrong with Bharti as Bharti was suffering from fits. Accordingly, on
19/4/1985, PW 1 – Mukunda accompanied by his wife and Bharti went to
the house of accused no.1 at Satana. It appears that the accused had agreed
for getting Bharti medically examined at Nashik. Subsequently, Bapu
Bhamare informed PW 1 – Mukunda that they need not go to Nashik as the
accused had agreed to take Bharti to Vajirkhede. Accordingly, PW 1 –
Mukunda took Bharti to Nashik on 3/5/1985. They waited for accused no.1
to come, but accused no.1 did not come and, therefore, PW 1 – Mukunda
returned back to Pachora. It appears that the accused were not willing to
take Bharti because Bharti was suffering from fits. Accused No.2
specifically desired that she should be satisfied about health of Bharti. PW
1 – Mukunda was transferred to Dhule. It further appears that the accused
had requested Mukunda to advance loan to accused no.1 for constructing a
bungalow. PW 1 – Mukunda informed them that he did not have money
for giving loan to accused no.1. After about two days, accused no.1 came
to Dhule and pleaded with PW 1 – Mukunda to advance him money for the
purpose of construction of the bungalow. Accused No.1 further informed
PW 1 – Mukunda that he intended to sell the ornaments in order to raise
money for the construction of bungalow. PW 1 – Mukunda promised him to
advance money to him to be paid in convenient installments. Accused No.1
and Bharti thereafter went to Vajirkhede.
7. In October, 1985, Mukunda was invited to Vajirkhede as there
was a discussion in respect of construction of the hospital of accused no.1.
Due to pressure of work, PW 1 – Mukunda could not go to Satana. 15 days
thereafter the accused had come to Dhule but PW 1 – Mukunda was not
available. On his return, he was informed by PW 2 – Sulbha that accused
no.5 had asked for Rs.50,000/- for the purpose of construction of the
hospital. In Diwali of 1985, Bharti was brought to Dhule and at that time
he she was in the family way. According to PW 1 – Mukunda after Bharti
returned to the house of the accused for a period of two to three months,
there was no ill-treatment. On 23/4/1986 Bharti gave birth to a daughter.
After delivery, Bharti returned back to Vajirkhede and was residing with
accused no.1 at Satana. According to PW 1 – Mukunda, the accused used
to ill-treat Bharti.
8. The second daughter of PW 1 – Mukunda was married in May
1987 and in the marriage PW 1 – Mukunda gifted a colour T.V. to his
second daughter. According to PW 1 – Mukunda, accused no.1 was
aggrieved because colour T.V. had not been gifted to him. Bharti had
delivered a boy in June 1987. According to PW 1 – Mukunda, Bharti was
ill-treated on account of not giving of a colour T.V. Set. In Diwali of 1987,
the accused and Bharti had come to Nashik where PW 1 – Mukunda was
transferred and insisted on a colour T.V. Set being provided. PW 1 –
Mukunda assured accused no.1 that he would give them the amount equal
to the black and white T.V. set and the rest of the amount would be borne
by accused no.1. PW 1 – Mukunda, accordingly, purchased the colour
T.V. worth Rs.10,800/-. According to PW 1 – Mukunda the accused,
however, did not pay the amount as promised. According to PW 1 –
Mukunda, he had also not demanded the money from accused no.1. In
June 1988, accused no.1 visited Nashik and had requested PW 1 –
Mukunda to come to Satana in connection with the purchase of the plot.
PW 1 – Mukunda had accordingly gone to Satana and accused no.1 had
demanded the amount for purchasing of the plot. PW 1 – Mukunda
contacted his friend Mr. Kharote who advised that the plot chosen by
accused no.1 was not suitable and he would find out another suitable plot.
According to PW 1 – Mukunda, Bharti was ill-treated thereafter. PW 1 –
Mukunda also deposes that when Bharti and accused no.1 had visited him
at Nashik, Bharti had complained that she was ill-treated. According to PW
1 – Mukunda, in August, 1988, accused no.1 had come to Nashik and had
paid the difference of the price of the colour T.V. set and had offered
Rs.5000/- which PW 1 – Mukunda declined to accept. Accused No.1,
however, insisted and PW 1 – Mukunda thereafter accepted the amount of
Rs.5000/-.
9. According to PW 1 – Mukunda in August, 1988, he started
construction of his house at Nashik and had asked loan of Rs.15,000/- from
the accused. Accused No.1 had accordingly sent the DD in the name of the
son of PW 1 – Mukunda in August 1988. After the loan for the
construction of the house of PW 1 – Mukunda was sanctioned, PW 1 –
Mukunda sent a draft for Rs.20,000/- along with his son to accused no.1.
The amount of Rs.20,000/- included the loan of Rs.15000/- given by
accused no.1 as well as the amount of Rs.5000/- paid by accused no.1
towards the difference in the cost of the colour T.V. Accused No.1,
however, declined to accept the DD for Rs.20,000/- and asked the son of
PW 1 – Mukunda that only Rs. 15000/- be paid. Accordingly, PW 1 –
Mukunda thereafter sent a DD for Rs.15000/- to accused no.1. According
to PW 1 – Mukunda, the accused thereafter again started ill-treating Bharti.
In one instance, Bharti had complained that accused no.1 used to say that
since her father was well-off, PW 1 – Mukunda should gift something to
the grandson. PW 1 – Mukunda deposes that on one occasion, the accused
had come and had demanded Rs.1,00,000/-. Mukunda had informed the
accused no.1 that he did not have that much money and would be willing to
give Rs.20,000/-. Accused No.1 got annoyed and went away. PW 1 –
Mukunda further deposes that on one occasion Bharti had telephoned and
had informed him that “she was manhandled by accused no.1 and,
therefore, she had not attended the marriage at Deola”. PW 1 – Mukunda
further deposes that when he had gone to the house of accused no.1, Bharti
had informed him that PW 1 – Mukunda should not pay the amount to
accused no.1.
10. In respect of the incident, PW 1 – Mukunda deposes that on
2/6/1989 at about 2.30 p.m. he had learnt that Bharti was admitted at Civil
Hospital, Nashik. Along with family members, he had gone to the Civil
Hospital and had learnt that Bharti had succumbed to her injuries. On the
same day, he lodged his report at Exh. 90.
11. In cross-examination, he has admitted that the letters at Exhs. 92
and 93 are in the handwriting of Bharti. He has also admitted that letter at
Exh. 94 dated 27/9/1988 is in the handwriting of Madhuri i.e. daughter of
accused no.3. He has admitted that the certificate issued by Dr. Wadia is at
Exh. 113. He has admitted that in December, 1982, he had gone to Dr.
Wadia for his examination. He has admitted that he had not got Bharti
examined by Dr. Sardesai. Bharti was examined by Dr. Gangwal from
Pune in 1982-83. He has admitted that Dr. Gangwal had advised him to get
Bharti examined by Dr. Waida. The medical case papers of examination of
Bharti by Dr. Wadia is at Exh. 114. The other documents are at Exhs. 115
and 116. The certificates issued by Dr. Gangwal is at Exhs. 118 and 119.
He has admitted that earlier marriage of Bharti was settled with a boy from
Aurangabad, but the marriage proposal was broken sometime in 1982. He
has admitted that cross-examination as true that the medical case papers
reveal that the temporal lobe was damaged. He has denied the suggestion
that because of this the earlier marriage of Bharti was broken. He has
admitted that the doctor had advised that the deceased was not serious and
there was no problem if Bharti was married. He has admitted that he had
informed the relatives of accused no.1 in respect of ailment of Bharti as
well as the break up of the proposed marriage of Bharti. He has further
admitted as correct that mother of accused no.1, as also the other relatives,
were demanding a writing from him on a stamp paper that he would not
complain in case Bharti get attack of fits and does something during those
fits. He has also admitted that the accused were demanding the written
document in order to safeguard their interest if Bharti suffers from some
serious injuries because of fits. He has also admitted as correct that Bharti
was not used to working in the agricultural land. He has further admitted as
correct that the accused were agriculturists who used to get the work done
through the labourers but used to supervise the agricultural operations.
12. Omission has been duly proved that he had not stated about
demand for a dinning table and other articles. He has admitted not to have
stated in the FIR about paying Rs.20,000/- for motorcycle and Rs.10,000/-
for other incidental purpose. He has admitted that at the time of
retirement, he was drawing salary of Rs.6000/-. Omission has also been
proved that he had not stated about money being demanded for construction
of bungalow for accused no.1. Omission has also been elicited that he had
not stated about accused no.1 informing him that he would sell the
ornaments of Bharti and about PW 1 – Mukunda advising him not to do so
and that Mukunda would pay him Rs.15,000/- to Rs.20,000/-. Omission
has also been duly proved that he had not stated about accused no.1
telephoning him to come to Satana for paying the money for the
construction of the hospital of accused no.1. Omission is also proved that
he had not stated that his wife had informed him that accused no.5 was
demanding Rs.50,000/-. Omission is also proved that he had not stated that
accused no.1 demanded colour T.V. from him. Omission is also proved
that he had not stated that accused no.1 had called him in June 1988 and
had asked him to give money for purchase of plot and that one Kharote had
informed that the plot was not suitable.
13. Prosecution has examined PW 2 – Sulbha, mother of deceased
Bharti. According to PW 2 – Sulbha, Bharti had disclosed that she was
assaulted by shoes by accused no.1 and that accused no.1 used to make her
sleep in the kitchen. In cross-examination, omission has been elicited that
she had not stated about accused no.2 demanding money for purchasing
agricultural field. Omission has also been elicited that she had not stated in
her previous statement that Bharti had informed her that she was assaulted
by accused no.1 by shoes. She has admitted that in none of the letters
addressed to accused no.1 they had made a grievance about ill-treatment or
the accused asking for money. Omission has been duly proved that she
had not stated in her previous statement about accused no.1 demanding
money for purchase of plot. She has admitted that in none of the letters
addressed by her, she had made any grievance about any ill-treatment being
given to Bharti or the accused making any demand for money.
14. Prosecution has examined PW 3 – Prabhakar who was present
when the demand for money for the construction of the hospital was made
by accused no.1 to PW 1 – Mukunda on phone. PW 3 – Prabhakar states
that PW 1 – Mukunda had informed him that accused no.5 was demanding
money for the purpose of construction of the hospital. The aforesaid
evidence is completely hear-say evidence as PW 1 – Mukunda does not
depose about informing PW 3 – Prabhakar about it.
15. Prosecution has examined PW 4 – Nayamanhali, who claims to
be present during the negotiations for taking deceased Bharti back to the
house of the accused. He has admitted in cross-examination that after
talking to accused no.1, he learnt that Bharti was suffering from fits. He
admits that he had also learnt that Bharti was suffering from fits from one
Hire, who was relative of PW 1 – Mukunda. He has also admitted that
during the meeting at Nashik, accused no.3 was complaining that Bharti
was suffering from fits. He has also admitted as correct that the accused
no.3 was demanding some writing on stamp paper.
16. Prosecution has examined PW 6 – Dr. Deepa Pawar who claims
that deceased Bharti was her friend since childhood. PW 6 – Dr. Deepa
Pawar further deposes that she used to meet Bharti frequently and had once
inquired as to why Bharti was nervous. According to PW 6 – Dr. Deepa
Bharti had disclosed to her that she was being harassed by accused no.1 and
her mother-in-law. She has also deposes that Bhati had informed her that
accused no.1 was demanding money for purchasing T.V. and a plot.
Bharti had also disclosed to her that accused no.1 was not giving her
ornaments for wearing. According to PW 6 -Dr. Deepa about two months
prior to death of Bharti, Bharti had disclosed to her that accused no.1 had
questioned her as to why Bharti was standing by putting hand on the
shoulder. According to Dr. Deepa, the accused no.1 was suspecting the
character of deceased Bharti. In cross-examination, omission has been
elicited that she had not stated in her previous statement that accused no.1
was not permitting to Bharti to wear ornaments. Similarly, omission has
been elicited that she had not stated about Bharti disclosing to her just two
months prior to the incident about accused suspecting her character and that
accused no.1 had questioned her as to why she was talking by keeping hand
on the shoulder. She has admitted that when she had met Bharti, Bharti
had disclosed to her that her father had purchased a T.V. set for accused
no.1.
17. Prosecution has examined PW 7 - Shivaji, who was also present
at the negotiations for taking Bharti back to the house of the accused. This
witness was declared hostile by the prosecution.
18. The evidence of PW 1 – Mukunda and the evidence of PW 2 –
Sulbha only reveals that whenever Bharti had come to their house, Bharti
had only complained that she was “ill-treated” or “harassed”. Though
Bharti had occasions to come to the house of PW 1 – Mukunda and
Mukunda claims that Bharti had informed him, yet neither PW 1 –
Mukunda nor PW 2 – Sulbha depose about specific instances of cruelty.
The allegations regarding demand of money are so vague and there are
several material omissions in that regard. From the evidence of PW 1 –
Mukunda and the evidence of PW 2 – Sulbha, we do not find that the
prosecution has led any evidence which would indicate that the accused had
ill-treated Bharti and the ill-treatment was of such a degree as would drive
Bharti to either commit suicide or cause an injury to herself. In fact, PW 1
– Mukunda admits that the accused had advanced him loan for construction
of his own house and the accused had sent the DD immediately when a
request was made by PW 1 – Mukunda. Even in respect of the construction
of the house/hospital, PW 1 – Mukunda has admitted that the accused had
asked for a loan. The disputes between accused no.1 and deceased Bharti
were the normal differences which arise between husband and wife and
which would be the normal wear and tear of married life. The evidence
does not conclusively establish that deceased Bharti was ill-treated and the
ill-treatment was of such a degree as would amount to ill-treatment within
the meaning of Section 498-A of the IPC. The reluctance of the accused to
take Bharti to their house was obvious from the fact that deceased Bharti
was suffering from fits and the accused had apprehended that in the event
Bharti causes some injuries to herself, the accused would be blamed and for
that the accused were insisting PW 1 – Mukunda to execute a stamp paper
which would exonerate the accused in the event Bharti sustained some
injuries while suffering from fits. The evidence does not, in our opinion,
lead to an inference that Bharti was subjected to ill-treatment and the illtreatment
was on account of demand for payment of dowry or the illtreatment
was because of failure of PW 1 – Mukunda to meet the illegal
demands of the accused. There is no evidence that soon before her death,
Bharti was ill-treated. The instances, as narrated by PW 6 – Dr. Deepa in
her evidence, have been elicited by way of omission. PW 6 – Dr. Deepa
deposes about Bharti informing her that the accused was suspecting her
character and chastity. Curiously, if Bharti could inform PW 6 – Dr. Deepa,
we find it inexplicable as to why Bharti did not inform PW 1 – Mukunda or
PW 2 – Sulbha. None of them referred to any ill-treatment by the accused.
In any event the said statement of Bharti made to PW 6 -Deepa has been
elicited by way of omission. Thus, on a overall assessment of the evidence
of the prosecution witnesses, we find that apart from bald allegations that
Bharti was ill-treated or was harassed, in our opinion, would not amount to
cruelty within the meaning of Section 498-A of the IPC. The recitals in the
letters by themselves would not amount to proof that Bharti was indeed
subjected to cruelty without there being other corroborative evidence in the
form of disclosures being made by Bharti to other prosecution witnesses.
All the prosecution witnesses only depose about ill-treatment without
specifying nature of the ill-treatment which was given by the accused to
deceased Bharti.
19. In respect of Section 302 of the IPC, we find that there is
absolutely no evidence in support of the said charge. The judgment of the
trial court reveals that even the Public Prosecutor in the trial court had
conceded that there was no evidence in respect of the offence punishable
under Section 302 of the IPC. In respect of the offence punishable under
Section 306 of the IPC, we find that there is no evidence of the accused
instigating deceased Bharti to commit suicide. We have earlier observed, in
our judgment, that there is no evidence in respect of an offence punishable
under Section 498-A of the IPC and consequently we find that there is no
evidence at all that the accused had instigated deceased Bharti to commit
suicide or had in any manner ill-treated Bharti thereby creating a situation
which would drive deceased Bharti to commit suicide.
20. In our opinion, therefore, the prosecution has miserably failed to
prove the offence alleged against the accused. There is no evidence that
soon before her death, Bharti was subjected to ill-treatment on account of
any demand being made for dowry. The trial court has appreciated the
evidence and has given reasons for acquitting the accused for offence
punishable under Sections 302, 306, 304-B of the IPC and acquitting the
other accused, except accused no.1, for offence punishable under Section
498-A of the IPC. With the assistance of the learned counsel for the parties,
we have minutely perused the findings recorded by the trial court. Upon
such perusal, according to us, the view taken by the trial court appears to be
a possible view to be taken on the basis of the evidence on record. We do
not notice any perversity in the reasoning of the trial court to warrant any
interference in an appeal against acquittal at the behest of the State. So far
as conviction of accused no.1 for offence punishable under Section 498-A
of the IPC is concerned, for the reasons stated above, according to us,
accused no.1 would be entitled to be acquitted by giving the benefit of
doubt as the evidence adduced by the prosecution is short of proving the
offence against the accused beyond reasonable doubt.
21. Mr. Nitin Pradhan, learned counsel for the original complainant
in Criminal Revision Application No. 21 of 1998 has urged before us that
PW 5 – Dr. Wagh had deliberately not informed the police about medicolegal
case when he had initially examined Bharti. According to
Mr. Pradhan since the investigation was completely flawed, the accused
would not be entitled to be given the benefit of doubt. According to us,
there is no material on record to record a finding that PW 5 – Dr. Wagh had
deliberately not informed the police. It is true that PW 5 – Dr. Wagh has
admitted that he had informed the police after four hours, but an
interference cannot be drawn that he had deliberately not informed the
police as accused no.1 was his friend. Mr. Pradhan has referred to the
judgment of the Supreme Court in State of M.P. vs. Mansingh and ors.
[(2003) 10 SCC 414]. The Supreme Court in the said judgment has held
that deficiencies in the investigation cannot be a ground for discarding the
prosecution version which was otherwise authentic, credible and cogent.
Mr. Pradhan has also referred to the judgment of the Supreme Court in
Allarakha K. Mansuri vs. State of Gujarat [(2002) 3 SCC 57]. In the said
judgment, the Supreme Court has held that defective investigation by itself
cannot be a ground for acquittal. Mr. Pradhan also referred to the judgment
of the Supreme Court in Chandrakant Luxman vs. State of Maharashtra
[(1974) 3 SCC 626]. The Supreme Court in the said judgment has also held
that laxity by the Investigating Officer in causing certain inconsistencies in
the prosecution case cannot inure to the benefits of the accused when the
story of the prosecution witnesses was consistent. The ratio of the aforesaid
judgments, in our opinion, is not applicable to the facts of the present case.
We have not given benefit of doubt to accused on the ground of infirmities
or deficiencies in the investigation. On a overall assessment of the
evidence of the prosecution, we have reached to a conclusion that the
prosecution has failed to prove the offence against the accused beyond
reasonable doubt. In that view of the matter, therefore, the ratio of the said
judgments would not apply to the facts of the present case.
22. Accordingly Criminal Appeal No. 771 of 1997 is allowed and
conviction and sentence of the appellant-original accused no.1 is hereby
quashed and set aside and he is acquitted of the offence with which he was
charged and convicted. Fine, if paid by the appellant, be refunded to him.
Bail bond of appellant/original accused no.1 stands cancelled.
Criminal Appeal No. 468 of 1998 filed by the appellant-State
against acquittal of respondent/original accused no.1 and Criminal Revision
Application No. 21 of 1998 filed by the applicant-original complainant
against acquittal of respondents/ original accused nos.1 to 5 are dismissed,
confirming the acquittal of the respondents/accused. Bail bonds of
respondents/accused stand cancelled.
(A. S. GADKARI, J.) (P. V. HARDAS, J.)
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