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2015 DIGILAW 2485 (BOM)

State of Maharashtra v. Ramesh Lingram Mahajan

2015-11-21

S.V.GANGAPURWALA, V.K.JADHAV

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JUDGMENT : S.V. Gangapurwala, J. 1. The accused are prosecuted for the offences punishable U/Sec. 498A, 304B and 306 read with Sec. 34 of the Indian Penal Code (for short "I.P. Code"). The Sessions Court acquitted all the accused persons. The State has filed present appeal. Mr. Nerlikar, the learned Assistant Public Prosecutor submits that, the evidence on record is sufficient to convict the accused persons U/Sec. 498A of the I.P. Code. So also U/Sec. 304-B and 306 of the I.P. Code. The learned A.P.P. submits that, the death has occurred within seven years of the marriage. The death is unnatural death. The demand has been proved by the evidence of P.W. No. 1 to P.W. No. 6. All these witnesses are the parents of the deceased and the uncle of the deceased. They have consistently deposed about the demand of locket, ring and cash. The said evidence is not impeached in cross examination. Coupled with the said evidence, even the letters written by the deceased to the father at Exhibit 59 to 62 are on record, which establishes the ill-treatment caused to the deceased at the hands of the accused persons. The Sessions Judge has failed to consider the same in its correct perspective. The ill-treatment started after the birth of first child in the year 1989. The two of the uncles of the deceased were residing at Nanded. They had the knowledge about the ill-treatment being caused and they have deposed the same before the Court. There is nothing to disbelieve the evidence of these witnesses. 2. The learned A.P.P. further submits that, the accused have not been in a position to rebut the presumption U/Sec. 304B of the I.P. Code, when the demand and the ill-treatment has been proved. There are specific allegations of the demand and ill-treatment and the presumption U/Sec. 113A of the Indian Evidence Act would also apply. According to the learned A.P.P. the deceased was compelled to commit suicide because of the ill-treatment caused by the accused persons, so also of demand of dowry. All these facts are clearly established. Only because some things are not mentioned in the F.I.R. and have been deposed before the Court that would not be sufficient to negate the case of the prosecution. The F.I.R. is not conclusive proof, the totality of the evidence was required to be considered. 3. All these facts are clearly established. Only because some things are not mentioned in the F.I.R. and have been deposed before the Court that would not be sufficient to negate the case of the prosecution. The F.I.R. is not conclusive proof, the totality of the evidence was required to be considered. 3. With the assistance of learned A.P.P. we have gone through the record and the depositions of the witnesses. 4. There cannot be any dispute with the proposition that, if the death is an unnatural death and there is demand, presumption would arise as is laid down U/Sec. 113-A of the Indian Evidence Act. 5. Perusal of the evidence on record, it is manifest that, the witness Nos. 1 to 6 have contradicted themselves on material aspects. According to the prosecution witnesses, ill-treatment commenced after the birth of first child. The discrepancies in the evidence appear, as to where the naming ceremony had taken place or not. So also as to whom the demand was made. The uncle of the deceased has deposed that, the accused No. 1 had told him that as his demand is not being fulfilled, consequences would follow. Whereas the father and mother of the deceased have nowhere stated that, it is the accused No. 1 who has made demand. According to them, it was the deceased who was communicating with them. How the case has been improvised in the evidence has been discussed in detail by the Sessions Judge. The averments with regard to ill-treatment are too vague. The proximity of the ill-treatment with the death of the deceased has also not been established. It has nowhere come on record that prior to one or two years before the death of deceased, she was ill-treated. There is absolutely no evidence in this regard. The said aspect has been discussed by the Sessions Judge. 6. Much emphasis is laid by the prosecution on the letters said to have been written by the deceased in the year 1990. The Sessions Judge has rightly considered that the said letters are said to have been written in the year 1990. The same were not dispatched till the month of June and July 1991. The F.I.R/complaint does not make reference of the said letters, nor the same are referred in the supplementary statements, nor the same are recovered from the complainant. The Sessions Judge has rightly considered that the said letters are said to have been written in the year 1990. The same were not dispatched till the month of June and July 1991. The F.I.R/complaint does not make reference of the said letters, nor the same are referred in the supplementary statements, nor the same are recovered from the complainant. All these aspects have remained unexplained by the prosecution. Even the complainant in his statement nowhere deposed that on naming ceremony of child, there was demand of cash, locket and ring. The said fact does not find place in the complaint/F.I.R. It is also not case of P.W. Nos. 2 to 6 that the deceased herself disclosed that there was ill-treatment by the accused for the demand of cash, ring and chain. It is their case that, they have received the information from the complainant. The said evidence is hear say evidence. The said aspect has been rightly considered. Even the F.I.R. goes to show that the deceased use to visit house of Bhimrao/P.W. No. 2. She use to tell him about the harassment to her for the demand and then he gave understanding to the accused. This P.W. No. 2 nowhere states that, the deceased Vijaya personally told him about any ill-treatment to her at the hands of accused. 7. There is absolutely no evidence worth the name, even to remotely suggest that at the time when the deceased committed suicide, the deceased was subjected to ill-treatment. The defence witness i.e. the daughter-in-law of the accused Nos. 2 and 3 has deposed before the Court to suggest that the deceased was under depression. It has come on record through the said evidence that the deceased and D.W. No. 1 use to visit temple every Friday. 8. When the evidence of demand of dowry itself is not proved, the presumption available for an offence punishable U/Sec. 304B would not be attracted. 9. There is no panchanama of the recovery of the letters. The said letters are produced by complainant before the police. The prosecution has also not taken pains to collect other hand writing of the deceased so as to prove the writing of these letters to be that of the deceased. Even the assistance of an expert was not taken by the prosecution. 10. The said letters are produced by complainant before the police. The prosecution has also not taken pains to collect other hand writing of the deceased so as to prove the writing of these letters to be that of the deceased. Even the assistance of an expert was not taken by the prosecution. 10. There is also no explanation coming forth as to why these letters written by the deceased were not posted for six to seven months. The evidence of prosecution goes to show that, the deceased was on visiting terms with her uncle, who was residing in the same city. As such, the deceased could have posted those letters, if she would have written the same. At Exhibit 65 there are photographs of the deceased taken during 07th month of pregnancy at the time of second child. At Exhibit 64 there are twenty one photographs of accused No. 1 and deceased and her first daughter. This shows that the accused No. 1 and the deceased use to go on tour at various places after the birth of her first daughter. 11. The fact of the deceased having consumed poison was also communicated to the complainant by the accused No. 4 and accused No. 5 on 02.09.1994 at 3.00 p.m. These persons had been to the complainant and told that the deceased was suffering from motions and omitting and that was smelling of poison like Roger. Considering the aforesaid aspects of the matter, the Sessions Judge has taken plausible view. No case is made out for interference. As such, the criminal appeal is dismissed. No costs.