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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, SURENDRA P. TAVADE, JJ.
The State of Maharashtra, Through the Police Inspector, Phaltan - Appellant
Versus
Dipak Kisan Bhongale & Ors. - Respondents
Criminal Appeal No. 1479 of 2003
Decided On : 23-12-2021
Indian Penal Code, 1860 - Sections 498-A, 34 and 304-B - Indian Evidence Act - Section 113B - Cruelty - Harassment - Dowry harassment - Death within seven years of marriage - Presumption under - Marriage of Dipali (deceased) with accused was solemnized in Dist - After marriage house members of in-laws of Dipali behaved and treated her properly - After about 10 months from her marriage Dipali came to her maternal home for delivery - At that time Dipali told her parents that accused are giving her ill-treatment - She further told her parents that accused had illicit relations with accused - Accused was demanding from Dipali. On Dipali gave birth to a child and thereafter for about 2 months nobody from house of her in-laws came to see her or her son - After a period of two months from her delivery Dipali was sent to her husband’s house - Accused started beating Dipali and was telling her to go from house - Whether Respondents were responsible for commission of suicide by Dipali - Accused was not supplying food to Dipali in time - She was giving stale food to Dipali. Accused No. 1 was also beating Dipali. accused and Dipali started residing separately at parents of Dipali had come to Phaltan to attend 2nd birth anniversary of son of Dipali - He told mother of Dipali to take Dipali to their home - father of Dipali tried to convince accused - Dipak started giving ill treatment to Dipali - one Mr. Shaikh Jahagirdhar came to house of complainant and intimated that Dipali is serious - Complainant and others went to Phaltan - They heard that Dipali hanged herself and as a result she died.
Finding of the Court: Court have considered entire evidence brought on record and Court find that prosecution has utterly failed to bring on record clear, cogent and convincing evidence to suggest that within proximate date and time of alleged incident of suicide by Dipali, there were possible overt acts on part of accused in instigating or aiding commission of suicide by Dipali - Court have carefully perused findings of acquittal recorded by trial Court and Court are of considered view that those findings are in consonance with evidence brought on record by prosecution - There is no perversity as such - Trial Court has taken a plausible view - Court have considered entire evidence brought on record and Court find that prosecution has utterly failed to bring on record clear cogent and convincing evidence to suggest that within proximate date and time of alleged incident of suicide by Dipali there were possible overt acts on part of accused in instigating or aiding commission of suicide by Dipali - As already observed prosecution has failed to prove demand of money of by Dipak and there are no positive acts brought on record by prosecution within proximate date and time of incident to attract ingredients of section 304B of Indian Penal Code and to invoke section 113B of Indian Evidence Act to presume that death has occurred otherwise than under normal circumstances with seven years from date of marriage usable view - Court have carefully perused contents of letter written by Dipali nowhere in said letter she has alleged against accused that they were demanding money or giving her ill-treatment. Neither there is a mention of demand of such amount nor that accused Dipak had illicit relations with wife of his brother, accused Court have also perused evidence of father of Dipali and also other prosecution witnesses - More or less, their evidence is similar to that of PW2.
Result: Appeal dismissed.
JUDGMENT :
S.S. Shinde, J.
1. This appeal is filed by the appellant-State challenging the judgment and order dated 30th August, 2003, passed by the Sessions Court, Satara in Sessions Case of 30 of 2003, thereby acquitting the accused for the offences punishable under Sections 498-A and 304-B read with section 34 of Indian Penal Code, 1860 (for short ‘IPC’).
2. The prosecution story in short can be summarized as under:-
The marriage of Dipali (deceased) with accused no. 1 was solemnized in the year 1999 at Kopargaon, Dist. Ahmednagar. After the marriage, the house members of in-laws of Dipali behaved and treated her properly. After about 10 months from her marriage, Dipali came to her maternal home for delivery. At that time, Dipali told her parents that accused no. 1 and 2 are giving her ill treatment. She further told her parents that accused no. 1 had illicit relations with accused no. 2. Accused No. 1 was demanding Rs. 50,000/- to Rs. 1,00,000/- from Dipali. On 17th December, 2000, Dipali gave birth to a child and thereafter, for about 2 months nobody from the house of her in-laws came to see her or her son. After a period of two months from her delivery, Dipali was sent to her husband’s house. Thereafter, accused no. 2 started beating Dipali and was telling her to go from the house. Accused No. 2 was not supplying food to Dipali in time. She was giving stale food to Dipali. Accused No. 1 was also beating Dipali. Thereafter, accused no. 1 and Dipali started residing separately at Kadam Chawl, Phaltan. The parents of Dipali had come to Phaltan to attend 2nd birth anniversary of son of Dipali. He told the mother of Dipali to take Dipali to their home. The father of Dipali tried to convince accused No.1. Thereafter, Dipak started giving ill treatment to Dipali.
On 9th June, 2002, one Mr. Shaikh Jahagirdhar came to the house of complainant at 5.30 a.m. and intimated that Dipali is serious. The complainant and others thereafter went to Phaltan. They heard that Dipali hanged herself and as a result she died.
3. An offence under Section 498-A read with section 34 of the Indian Penal Code came to be registered. After completion of investigation, charge-sheet came to be filed.
4. Charge under Section 498-A, 304-B read with Section 34 of IPC came to be framed. After a full fledged trial, the trial Court acquitted the accused for the offence punishable under sections 498-A and 304-B read with 34 of IPC. Hence, this appeal.
5. Heard the learned APP appearing for the Appellant – State and Mr. Kate, learned Counsel appearing for the Respondents. With the able assistance of the learned Counsel appearing for the parties, perused the entire evidence and also the findings recorded by the trial Court. It appears that charge was framed by the trial Court under sections 498A, 304B read with section 34 of the Indian Penal Code. The trial Court did not frame the charge under section 306 read with section 34 of the Indian Penal Code.
6. In order to find out whether the death of Dipali was homicidal, suicidal or accidental, it is necessary to discuss the evidence of Dr. Sudhakar Marutirao Bhokre (PW7), who was working as Medical Officer at the relevant time in Zilla Parishad Dispensary at Phaltan. In his deposition, he stated that when the patient (deceased Dipali) was brought to him at the hospital, she was unconscious. While she was under his treatment, she died at 1am on 9th June, 2002. On examination, he found that ‘saliva trippled out from mouth, mark is situated above thyroid cartilage between larynx and chin directed obliquely upward following line mandible shown irregular impression on right side behind ear. The length was 23 cms. and breadth was 1 cm. On dissection, subcutaneous tissue dry, white and glistening epiglottis congested. No fracture of larynx and trachea. Carotid artery C in normal limits’. He has also reported in the post-mortem report that all organs are congested. Stomach is empty. All injuries on the body were antemortem and that th
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