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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.