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2018 DIGILAW 479 (BOM)

State of Maharashtra, through Police Station Officer, Police Station Katol, Distt. Nagpur v. Sudhir S/o Keshaorao Bidakar

2018-02-17

MANISH PITALE, V.M.DESHPANDE

body2018
JUDGMENT : MANISH PITALE, J. By this appeal, the State has challenged the judgment and order dated 27-07-2006 passed by the Sessions Court at Nagpur in Sessions Trial Case No. 352 of 2004, whereby the respondents/accused have been acquitted of the offences punishable under Sections 498-A and 304-B r/w Section 34 of the Indian Penal Code (for short, ‘the IPC’). 2. The facts leading to filing of the instant appeal are; that on 28-05-2001, the marriage of respondent no. 1 and deceased Anita took place and they started cohabiting in the matrimonial home at Katol. On 23-02-2004, respondent no. 1 gave a report to the Police Station at Katol that on the said day he had left the house in the morning and that when he returned in the evening he found the dead body of his wife hanging from the ceiling with a dupatta. A report of accidental death was registered and upon preparation of inquest panchanama and spot panchanama, the dead body was sent for post mortem examination. The report of the post mortem examination shows that except ligature marks and abrasion on the neck, no other injuries were found on the body of the deceased. 3. On 24-02-2004, father of the deceased, caused an FIR to be registered in the Police Station at Katol against the respondents for offences punishable under Sections 498-A and 306 r/w Section 34 of the IPC. It was alleged that the respondents were demanding Rs.2 lakhs from the deceased and that they were asking her to bring the said amount from her parents. It was also alleged that the respondents physically and mentally harassed the deceased while making the said demand, which provoked her to commit suicide. 4. On the basis of the aforesaid FIR, investigation was conducted and chargesheet was submitted on behalf of the prosecution. Thereafter, on 07-12-2004, charge was framed against the respondents for the offences punishable under Sections 498-A and 304-B r/w Section 34 of the IPC. The respondents were arrayed as accused. Respondent no. 1 (accused no. 1) being the husband of deceased, respondent no. 2 (accused no. 2.) being the brother-in-law of deceased, respondent no. 3 (accused no. 3) being the mother-in-law of deceased and respondent no. 4 (accused no. 4) being the sister-in-law of deceased. The case was committed to the Sessions Court for trial. Respondent no. 1 (accused no. 1) being the husband of deceased, respondent no. 2 (accused no. 2.) being the brother-in-law of deceased, respondent no. 3 (accused no. 3) being the mother-in-law of deceased and respondent no. 4 (accused no. 4) being the sister-in-law of deceased. The case was committed to the Sessions Court for trial. The prosecution examined 14 witnesses to prove the aforesaid charge against the accused. The prosecution also brought on record two letters written by the deceased being Exhibits-59 and 60, in order to prove its case. The important witnesses for proving the prosecution case were PW-1-Haribhau Alaspurkar (father of deceased), PW-2-Tai Alaspurkar (mother of deceased) and PW-4-Abhay Alaspurkar (brother of deceased). 5. On the basis of the oral and documentary evidence on record, the prosecution sought to prove its case before the Sessions Court. But, by the impugned judgment and order, the Sessions Court held that the prosecution had failed to prove its case beyond reasonable doubt against the aforesaid accused. Accordingly, the Sessions Court acquitted the respondents/accused for the said offences. 6. Shri. T.A. Mirza, learned APP appearing on behalf of the appellant/State contended that the Sessions Court had failed to appreciate the oral and documentary evidence on record in proper perspective and that it had erred in acquitting the respondents/accused. 7. None has appeared on behalf of the respondents/accused. 8. The point to be determined in the present appeal is, as to whether the Sessions Court was justified in acquitting the respondents/accused by impugned judgment and order and whether the view taken by the Sessions Court was a possible view, on the basis of the oral and documentary evidence on record. 9. As stated above, the most important witnesses in support of the prosecution case were; PW-1-Haribhau Alaspurkar (father of deceased), PW-2-Tai Alaspurkar (mother of deceased) and PW-4-Abhay Alaspurkar (brother of deceased). A perusal of the evidence of these three witnesses shows that the allegations of physical and mental harassment made against the accused in the present case by these witnesses are in general terms. Their evidence does not give particulars as regards the alleged demand of money made by the accused from the deceased. A perusal of the evidence of these three witnesses shows that the allegations of physical and mental harassment made against the accused in the present case by these witnesses are in general terms. Their evidence does not give particulars as regards the alleged demand of money made by the accused from the deceased. It is on record that none of these witnesses ever made any complaint against the accused during the life time of the deceased, as regards the alleged physical and mental harassment meted out to her by the accused while making demands of money from her and her parents. There is lack of details in the evidence of these witnesses as regards the time period when the alleged physical and mental harassment was suffered by the deceased at the hands of the accused. 10. A perusal of two letters at Exhibits-59 and 60, relied upon by the prosecution, shows that the contents of the said letters do not refer to any specific demand by the accused from the deceased, which could be termed as ‘dowry demand’. In fact, the contents of the said letters show that the deceased was a person of strong opinion. At one point in the letter at Exhibit-59, the deceased has stated that she cannot tolerate the dominance of anyone in the household. This indicates that the deceased was not happy living in a joint family with her husband/respondent no. 1 and that she had a feeling that her husband was not having any self respect and that she was made to face dominance of other members of the family while living in the matrimonial house. The contents of letter Exhibit-60 show that respondent nos. 1 (husband) tried to pacify her to face the situation of conflict in the household and the attempts which he made to sort out such situation. The contents of these letters at Exhibits-59 and 60 are far from being any material to advance the case of the prosecution that illegal demands of money were being made by the respondents/accused and that the deceased was being physically and mentally harassed in connection with such demands. At worst, the said letters depict the mental state of the deceased as being a person who was unhappy in living in a joint family. At worst, the said letters depict the mental state of the deceased as being a person who was unhappy in living in a joint family. Since the charge framed against the respondents/accused pertains to Sections 498-A and 304-B of the IPC, the harassment, if any, felt by the deceased was required to be proved in connection with the demand of dowry. 11. A perusal of Section 304-B of the IPC would show that, in order to convict an accused for an offence under the said provision, it must be proved that the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, that such death has occurred within seven years of marriage, that soon before her death, the woman was subjected to cruelty or harassment by her husband or by relatives of her husband and that such cruelty or harassment was in connection with the demand of dowry. In the instant case, although the death of the wife of respondent no. 1 was otherwise than in normal circumstances and it had occurred within seven years of the marriage, but there was no material on record to show that soon before her death the deceased was subjected to cruelty or harassment by respondent no. 1/accused and that such cruelty or harassment was in connection with the demand of dowry. Therefore, the ingredients of the offence under Section 304-B of the IPC are clearly not satisfied in the present case. 12. Similarly, the prosecution has not been able to bring material on record to show that the respondents/accused had subjected the deceased to cruelty that drove her to commit suicide and that the harassment suffered by her was related to an unlawful demand by the respondents/accused. In fact, evidence of PW-4-Abhay Alaspurkar (brother of deceased) shows that he was treated with respect every time he visited the matrimonial house of his sister, the deceased. His deposition shows that he visited the deceased on the day of ‘Rakhi’ and thereafter on few occasions. This fact coupled with the fact that the parents or the brother of deceased never made any complaint against respondent no. 1/accused during the life time of deceased shows that there were normal relations between the families and that it was only after the incident in question that the allegations of harassment were levelled against the respondents/accused. 13. This fact coupled with the fact that the parents or the brother of deceased never made any complaint against respondent no. 1/accused during the life time of deceased shows that there were normal relations between the families and that it was only after the incident in question that the allegations of harassment were levelled against the respondents/accused. 13. As stated above, the tenor of the letters at Exhibits-59 and 60 written by the deceased to her parents shows that there was no reference to any demand of dowry against the respondents/accused. In fact, the letters show that the deceased was unhappy in the matrimonial house because she was not comfortable in living in a joint family and to make adjustment with other members of the family. She comes out as a person with strong opinions, who was not ready to face the perceived dominance of other members of the family. The contents of the said letters do not show that respondent no. 1 (husband) or other members of the family physically or mentally harassed the deceased, in connection with any dowry demand. 14. Therefore, it is evident that the prosecution has failed to prove the ingredients of offences under Sections 304-B and 498-A of the IPC. The Sessions Court, in the impugned judgment and order, has appreciated the oral and documentary evidence on record in the correct perspective, while acquitting the respondents/accused. 15. Even otherwise, the Hon'ble Supreme Court has laid down time and again that the appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible. In the case of Babu v. State of Kerala, reported at (2010) 9 SCC 189 , upon considering various judgments pertaining to the approach to be adopted by the appellate Court while considering an appeal against the acquittal, the Hon'ble Supreme Court has held as follows :— “19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.” 16. Thus, acquittal by the trial Court bolsters the presumption of innocence of the accused and the order of acquittal cannot be interfered with unless it is found to be perverse. In the present case, It is found that the Sessions Court has taken into consideration the entire oral and documentary evidence on record and upon a proper appreciation of the same, it has passed the order acquitting the respondents/accused in the present case. 17. In the light of above, this appeal is dismissed, the judgment and order of the Sessions Court is confirmed. Since the respondents/accused are on bail, their bail bonds are discharged.