Back
BOMBAY HIGH COURT
Rohit B. Deo, J.
Motiram —Appellant
versus
State of Maharashtra —Respondent
Criminal Appeal No.267 of 2002
Decided on 24.8.2017
Counsel for the Parties:
For the Appellant:Shri R.R. Bhure, Advocate
For the Respondent: Shri N.B. Jawade, Addl. P.P.
IMPORTANT POINT
An accidental death, would not be a death otherwise than under normal circumstances. It would be necessary to exclude the possibility of accidental death before the accused can be convicted under Section 304B of the Indian Penal Code.
Headnote:Indian Penal Code, 1860—Sections 304B, 306 and 498A—Conviction of husband for offences—Deceases got married to appellant in 1997 died in 1998 when her body was found in a well—Investigation revealed that accused and his another were ill-treating deceased to coerce her to bring more dowry—Trial Court convicted appellant on assumption that death of deceased on assumption that death of deceased could only be suicidal or homicidal—Reasoning was fallacious and it was necessary for prosecution to exclude possibility of accidental death—Witness PW1 stated that well was parallel to earth which suggested there was no protective parapet wall—Well was situated at a distance of two and half feet from gate of compound of residence of accused and on fateful night there was darkness which would suggest the possibility of deceased having met with accidental death—Evidence on aspect of cruelty was neither adequate nor confidence inspiring—Conviction was liable to be set aside.
Held: I have closely and minutely considered the evidence on record and the reasoning of the learned Sessions Judge as is discernible from the judgment impugned. The learned Sessions Judge has convicted the accused for the offence punishable under Section 304B of the Indian Penal Code on the assumption that the death of the deceased can only be suicidal or homicidal. The learned Sessions Judge records thus in paragraph 9 of the judgment impugned
“her death is caused because of fall in the well water. The well is near to the house of the accused. It was a night time. Therefore, it is crystal clear that deceased Kanchan either committed suicide or she was killed and thrown in the well water”.
I am afraid, the reasoning is both strange and fallacious.
An accidental death, would not be a death otherwise than under normal circumstances. It would be necessary to exclude the possibility of accidental death before the accused can be convicted under Section 304B of the Indian Penal Code. Unfortunately the learned Sessions Judge erroneously assumed that since the deceased fell in the well, the death could only be suicidal or homicidal.
P.W.1 Jageshwar Lokhande who is witness to the spot panchanama Exhibit 38 states that the well is parallel to earth, which would suggest that there was no protective parapet wall. P.W.1 admits that on the fateful night there was darkness and that a cow had also fallen in the well situated behind the house of the accused. The spot panchanama Exhibit 38 records that the public well is situated behind the house of the accused at a distance of two and half feet from the gate of the thorny compound of the house of the accused. The spot panchanama records the height of the parapet wall from the ground as one and half feet. It is true that there is some inconsistency between the testimony of P.W.1 and the spot panchanama on the existence of the parapet wall. The spot panchanama records the existence of a parapet wall of one and half feet height while the witness to the spot panchanama P.W.1 asserts that the well is parallel to the earth.
However, even if the existence of one and half feet parapet wall is assumed, the fact that a cow fell in the well, that well is situated at a distance of two and half feet from the gate of the compound of the residence of the accused, that on the fateful night there was darkness, would suggest that the possibility of the deceased having met with an accidental death cannot be ruled out.
(Paras 11, 12, 14 to 16)
Result: Appeal allowed.
JUDGMENT
Rohit B. Deo, J.—The appellant assails the judgment and order dated 2252002 in Sessions Trial 67/1998 of the learned 1st Ad hoc Additional Sessions Judge, Bhandara by and under which the appellant is convicted for the offences punishable under Sections 304B and 498A of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven years and for the offence punishable under Section 306 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for two years.
2. Alongwith the appellant (hereinafter referred to as the accused) his mother Kaushalyabai was also arrayed as a coaccused. She has, however, been acquitted.
3. The deceased Kanchan married the accused on 1951997 and the couple cohabited at village Sadak Arjuni. Kanchan met a watery death between 1921998 and 2021998. Her body was recovered from a well situated in close proximity to the residence of the accused. The accused Motiram lodged a report at police station Duggipar. An accidental case was registered under Section 174 of the Criminal Procedure Code, 1973.
4. During the course of investigation, the police prepared the spot and inquest panchanama and the dead body was sent for post mortem. The case of the prosecution is that during the course of investigation, the statements of witnesses were recorded which revealed that the accused and his mother were illtreating the deceased Kanchan to coerce her to accede to illegal demand of dowry. Since the death occurred within seven years of the marriage and the death was treated as suicidal, offences punishable under Sections 304B, 306 and 498A read with Section 34 of the Indian Penal Code were registered. The completion of investigation led to presentation of the chargesheet, the trial Court framed charge Exhibit 13 on 0982001, the accused pleaded not guilty and claimed to be tried.
5. The charge Exhibit 13 framed by the learned Sessions Judge reads thus:—
“Charge
I, B.B. Yerlekar, 1st Ad hoc Assistant Sessions Judge, Bhandara do hereby charge you:—
1. Motiram s/o Kisan Shende, Aged about 22 years,
2. Kaushalyabai wd/o Kisan Shede, Aged about 45 years.
Both r/o Sadak Arjuni, District Gondia as follows:
1. That, in between 1921998 to 2021998 you accused no.1 being husband of Kanchan w/o Motiram Shende and accused No.2 being her mother-in-law in furtherance of common intention, caused her death in well water other than normal circumstances, within seven years of marriage and thereby you both have committed an offence u/s 304B read with section 34 of the Indian Penal Code and within my cognizance.
2. Secondly, on the same date, time and place at Sadak Arjuni you both the accused persons, in furtherance of common intention, abetted to Kanchan to commit suicide, for the demand of dowry and harassed her, and thereby you both have committed an offence under section 306 read with section 34 of the Indian Penal Code and within my cognizance.
3. Thirdly, on the aforesaid date, time and place, you both being in law of deceased Kanchan, in furtherance of common intention subject to cruelty to such Kanchan, harassed her and thereby you both have committed an offence under Section 498A read with section 34 of the Indian Penal Code and within my cognizance. And, I hereby direct that you both be tried by me on the aforesaid charges.
Dated: 0982001.
sd/-
B.B. Yerlekar)
1st Ad hoc Asstt. Sessions Judge,
Bhandara
Charge is read over and explained to the accused persons in vernacular. They pleaded not guilty and claimed to be tried.
Dated: 0982001.
sd/-
B.B. Yerlekar)
1st Ad hoc Asstt. Sessions Judge,
Bhandara”
6. The prosecution examined nine witnesses including the brother, mother and uncle of the deceased and a family friend of the deceased to substantiate the allegation that the deceased Kanchan was ill-treated and harassed with a view to coerce her to meet unlawful demand for property and valuable security.
7. The defence of the accused as evident from the statement recorded under Section 313 of the
