Full Judgment Text
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CASE NO.:
Appeal (crl.) 564 of 1997
PETITIONER:
Ashok Vishnu Davare
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 10/02/2004
BENCH:
N Santosh Hegde & B P Singh.
JUDGMENT:
JUDGMENT
SANTOSH HEGDE, J.
Being aggrieved by the judgment of the High Court of
Judicature at Bombay, the appellant has preferred this appeal.
By the said judgment said High Court confirmed the conviction
and sentence imposed on the appellant by the Court of Sessions
Judge at Nasik for offences punishable under sections 498A and
306 IPC. Brief facts necessary for the disposal of this appeal are
as follows :
The appellant herein was married to one Jayashree about
10-11 years before the death which took place on 8.5.1998. The
cause of death was suicide by consuming pesticides. It is the
prosecution case that about 15 days before the death of said
Jayashree she had visited her parents who were staying in
village Chitegaon which was a neighbouring village to the one
in which the appellant and Jayashree were staying with their
family namely village Konambe. During the abovesaid visit to
her parents, it is stated she told her brothers that she was sent by
her husband to bring a sum of Rs.5,000. It was also the case of
the prosecution that she did express that her husband was mal-
treating her and physically abusing her for bringing said money.
On such request being made by the deceased, it is stated that
her brothers told her that they will make arrangements for
sending the said money. Shortly thereafter Jayashree returned
to her husband leaving behind one of her sons whom she had
taken along with her. On 7.5.1988 it is stated Vilas PW-6 who
is the son of one of the brothers of the deceased visited village
Konambe along with the son of the appellant by name Kiran
whom the deceased had left behind in her parents’ house but he
did not bring the promised amount. It is stated that PW-6 stayed
overnight at Konambe, though not in the house of the appellant,
but visited the appellant’s house, which is a farm-house situated
in the lands belonging to the family of the appellant, on
8.5.1988 in the morning when this witness saw appellant
quarrelling with the deceased and even beating her. It is stated
that PW-6 then returned to his village Chitegaon and informed
PW-2 Ranganath one of the brothers of the deceased about what
he had seen in the house of the appellant. The prosecution
further alleges that at about 2 p.m. on that day some villagers of
Konambe came and told PW-2 that his sister had died. On
hearing this news PW-2 and another brother of his along with
some villagers went to Konambe and saw the dead body lying
on a cot in front of the farm-house. Suspecting some foul play it
is stated that PW-2 went to Police Station Sinnar and lodged a
complaint of unnatural death of his sister, pursuant to which a
case was registered and after investigation the appellant and his
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father by name Vishnu Anand Davare were charged for
offences punishable under sections 498A and 306 read with 34
IPC before the learned Sessions Judge, Nasik and after trial the
said court came to the conclusion that the prosecution while
failing to establish its case against A-2 the father of the
appellant herein, has established its case against the appellant,
therefore, punished him for an offence punishable under section
306 IPC and sentenced him to undergo RI for 2 years and
further to pay a fine of Rs.250. It further convicted the appellant
for an offence punishable under section 498A IPC and
sentenced him to undergo RI for one year and to pay a fine of
Rs.250. The substantive sentences were directed to run
concurrently.
As stated above, an appeal filed against the said
conviction and sentences in the High Court of Bombay came to
be dismissed.
Mr. Gaurav Agarwal, learned counsel appearing for the
appellant contended that though prosecution had examined
about eight witnesses and exhibited certain documents, it has
failed to establish that the appellant either abetted the suicide of
Jayashree or had in any manner subjected her to cruelty. The
prosecution evidence in this regard, according to learned
counsel, has failed to establish the required ingredients of
sections 306 and 498A. Learned counsel first pointed out that if
really there was any cruelty meted out to Jayashree by the
appellant then it would have been clearly mentioned in the
complaint filed by PW-2 on 8.5.1988 before the Sinnar Police.
He took us through the complaint and urged that nowhere in the
complaint any allegation is made against the appellant in regard
to he beating her or making any demand as sought to be made
out subsequently in the evidence led before the court. Learned
counsel submitted that if really PW-6 had noticed the appellant
beating the deceased on the day she committed suicide, the said
fact would certainly have been mentioned in the complaint
since it is the prosecution case that PW-6 did mention this to
PW-2 when he returned back from the village. Similarly he
pointed out from the evidence of Sonabai PW-3, who was a
neighbour of PW-2 residing in Konambe village, that the
allegation of beating and the demand of Rs.5000 as stated by
her before the court was not stated by her when her statement
was recorded during the course of investigation by the
investigating agency, hence the same should be treated as an
improvement. Similarly with reference to the evidence of PW-
6, the nephew of the deceased, the learned counsel submitted
that his evidence is also full of material contradictions, creating
serious doubt as to his having witnessed the alleged assault by
the appellant on the deceased. In these circumstances learned
counsel submits that both the courts below have failed to notice
these vital defects in the prosecution case hence they erred in
coming to the conclusion that the prosecution has established its
case against the appellant.
Mr. S.S. Shinde, learned counsel appearing for the State
of Maharashtra, per contra, contended that from the evidence
led by the prosecution as accepted by the two courts below, it is
clear that the prosecution has established beyond all reasonable
doubt that the appellant was demanding money from the family
of the deceased and was also physically ill-treating her to bring
the money. He submitted that the concurrent finding of the two
courts below does not require any interference by this Court.
We will now examine whether the prosecution in this
case has established beyond all reasonable doubt that the
appellant in any manner abetted the suicide of the deceased so
as to make his act punishable under section 306 and whether he
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had subjected the deceased to such a degree of cruelty or
harassment to meet the monetary demand made by him as to
hold him guilty of an offence punishable under section 498A
IPC.
As noted above, to bring these ingredients of the two
sections with which the appellant was charged, the prosecution
relies on the evidence of PWs.2 to 7.
So far as PW-2 is concerned, we notice that in his
evidence before the court he did say that the appellant used to
make demand for money through the deceased which the
deceased’s family was meeting. He also says that 15 days prior
to her death, deceased Jayashree had asked for Rs.5,000 since
her husband was demanding the same. He further states that
since the family did not have sufficient money at that point of
time, he promised to send the money 4 or 5 days later. He also
says on 7.5.1988 he sent Kiran son of the deceased who was
left behind in their house by the deceased during her last visit,
with his nephew PW-6 to Konambe village and when PW-6
returned from the said village on 8.5.1988 in the afternoon PW-
6 did tell him that the appellant had beaten the deceased.
Therefore, it is clear this witness had the knowledge of the fact
that the appellant was making the demand for money and about
15 days prior to the death of the deceased, she had come to her
parental home and asked for the money which could not be paid
and on the day of her death PW-6 had come to him and told
him that the appellant had beaten the deceased. In spite of the
same we find that in the complaint given by this witness to the
Police on the very day of the death of the deceased, none of
these facts has been mentioned. If really, these facts were
known to PW-2, he would not have failed to mention these
facts in his complaint. On the contrary in the complaint all that
is stated is that two persons from the village Konambe had
come to him in the afternoon of 8.3.1988 and told him that
Jayashree had died. On hearing it he and his relatives went to
Konambe and saw the dead body. The failure to mention any
one of these facts which might have been the cause of his
sister’s suicide indicates that at that point of time when he gave
the complaint he did not have any knowledge either of the
demand for money or of harassment meted out to his sister
including the beating. Further during his cross-examination he
even denies the fact that PW-6 had gone to Konambe on
6.5.1988 accompanying Kiran the son of the deceased. In such
circumstances we think it not safe to place reliance on the
evidence of this witness.
The next witness examined by the prosecution to
establish its case of harassment and demand for money is PW-3
Sonabai, a resident of Chitegaon and a neighbour of PW-2. This
witness does mention the fact that whenever the deceased
visited Chitegaon she used to come to her house and used to
complain that her husband was beating her. She also states
about 8 days prior to the death of the deceased she had come to
her and told her that deceased’s father-in-law was demanding
Rs.5,000. From her evidence it is not clear when exactly the
beating referred to in her evidence had taken place. Obviously,
it cannot be the beating referred to by PW-6 because PW-6 had
never met her and told her about it therefore if at all her
evidence is true, it could be with reference to some beating
earlier during the subsistence of 11 years’ marriage between the
appellant and the deceased. Therefore, this part of her evidence
cannot be treated as the evidence indicating the harassment
meted out to the deceased. It is also to be noticed that in her
evidence, she states that deceased had told her about 8 days
before her death that her father-in-law had demanded Rs.5,000
which is not the case of the prosecution. According to the
prosecution the demand was being made by the husband-
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appellant herein. In the cross examination a suggestion is put to
her that she had not told the I.O. when her statement was
recorded under section 161 Cr.P.C. of these facts of harassment
and demand which of course she denied. But from the above
discussion as noticed by us it is clear that the evidence of this
witness is insufficient to hold that the appellant had
immediately prior to the death of deceased on 8.3.1988 had
either beaten her or had made a demand of Rs.5,000 unless
there is an acceptable corroboration on these aspects from other
sources.
PW-4 is a neighbour of the appellant. He says that he had
scribed two letters dated 22.1.1986 and 6.1.1987 at the instance
of the deceased to her parents. According to this witness these
have been exhibited as Ex. 29 and 30. A perusal of these two
letters does not indicate that there was any demand for money
by the appellant or for that matter from anybody from his side
or about any harassment meted out to her. The letter merely
states that she wanted a blouse piece and a good blanket. The
letter as per Ex. 29 only states and makes a complaint that she
has not been receiving any letters from her family in Chitegaon.
Even in Ex.30 there is no allegation as to any harassment or
demand. This letter states that she has been sick for about 8 or
10 days but not to worry about the same. But in that letter she
did request one of her brothers to visit her. In our opinion,
neither the evidence of PW-4 nor the two letters Ex.29 and 30
support the prosecution case in any way.
PW-5 is the wife of one of the brothers of the deceased
who states in her evidence generally that the husband of the
deceased was demanding money and her family was paying
money from time to time. She also states that about 8 days prior
to the incident in question deceased had come to their house
and asked for Rs.5,000 since the same was being demanded by
her husband, but the money could not be given. She further
states that on his return PW-6 did tell her that there was some
dispute going on between the husband and the wife. She does
not state that PW-6 told her that he saw the appellant beating
deceased on 8.5.1988. In our considered opinion the statement
of this witness in regard to harassment and the demand for
money is too general in nature to base a conviction or to treat
the same as corroborating any other acceptable evidence led by
the prosecution.
PW-6 is the nephew of the deceased who according to
the prosecution visited the house of the appellant on 7.5.1988
with a view to drop the appellant’s son Kiran who was staying
for a few days with his grand-parents at Konambe. According
to this witness he stayed overnight in Konambe though not in
the house of the appellant. He further states that he visited the
farm-house of the appellant on 8.5.1988 when he saw the
appellant beating the deceased. He further states that on his
return he told his father and uncle about this incident of beating.
But in his cross examination this is what the witness stated :
"\005 At that time, Jayashri was present out of
the hut and our talk taken place out of the
hut. The quarrel was going on between
husband and wife before I reached there. I
am unable to give reason for the quarrel.
Accused Ashok had beaten her before I
reached there. Accused again beat her in my
presence. I did tell before police "accused
Ashok beat his wife because I did not take
money or there was a talk about money,
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between myself and Jayashri and he assured
Jayashri that he would send the money and
Jayashri replied I should send money
immediately."
This part of the statement of PW-6 clearly shows that his
evidence in regard to having seen the beating of the deceased
by the appellant and the demand for money is an improvement
from his previous statement made to the Police. This coupled
with the fact that in the complaint no such allegation has been
made makes us feel that it is not safe to rely on the evidence of
this witness.
PW-7 in his evidence has stated that on one or two
occasions the deceased was driven out of the house because she
did not bring money which is not even the case of the
prosecution. The evidence of PW-7 shows that the demand for
money was made by the appellant’s father who was A-2 before
the trial court hence we do not think it would assist the
prosecution in any manner to implicate the appellant.
From the evidence of PW-8, the I.O. it is seen that PW-3
Sonabai, the neighbour of PW-2 did not tell him that the
deceased had told her about the demand of Rs.5,000 and that
she had heard about it. Therefore, this part of the evidence of
PW-3 becomes an improvement.
From the above evidence, in our opinion, it is not
possible to come to the conclusion that the prosecution has
established its case beyond all reasonable doubt in regard to the
charges alleged against the appellant. In our opinion, the courts
below have not properly appreciated the evidence and failed to
notice the glaring improvements made by the witnesses in their
evidence given before the court. These improvements in our
opinion materially affect the creditworthiness of the prosecution
case hence it is not safe to base a conviction.
For the reasons stated above, this appeal succeeds and the
same is allowed. We set aside the judgments of the two courts
below, setting aside the conviction and sentence imposed on the
appellant. His bail-bonds shall stand discharged.