Criminal Appeal No.309 of 1999,Criminal App. No.379 of 1999

3rd February, 2004

Petitioner Counsel: Shri. S. J. PATIL
Respondent Counsel: Ms. P. H. KANTHARIA

Cases Cited:
R. P. Vidhan Vs. State of Maharashtra, 1993 Cr.L.J. 3019 [Para 6]
Sharad B. Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 [Para 7]

JUDGMENT

KAKADE, J.:- Both these appeals can be disposed of by this common judgment as they arise out of the judgment and order passed by the Additional Sessions Judge, Sangli, in Sessions Case No.58 of 1998. Originally, all the 5 accused persons were prosecuted for commission of the offence punishable under Sec.498-A, Sec.302 read with 34 and Sec.201 read with 34 of the I.P.C. Accused Nos.1 & 2 were found guilty of commission of the offence under Sec.498-A, 302 and 201 read with 34 of the I.P.C., whereas accused Nos.3, 4 & 5 were acquitted of the charges under Sec.302 and Sec.201 read with 34 of the I.P.C. but were convicted for the offence punishable under Sec.498-A of the I.P.C. Accused Nos.1 & 2 were convicted and sentenced to suffer life imprisonment and to pay fine of Rs.15,000/- each in default to suffer R.I. for one year for offence of murder, whereas they were sentenced to suffer R.I. for 5 years and to pay fine of Rs.5,000/- each in default to suffer R.I. for six months for offence under Sec.201 of I.P.C. and they were sentenced to suffer R.I. for one year and to pay fine of Rs.1000/- each in default to suffer R.I. for one month for the offence punishable under Sec.498-A of the I.P.C. Accused Nos.3, 4, & 5 were sentenced to suffer R.I. for one year and in default to suffer R.I. for one month for offence punishable under Sec.498-A of the I.P.C. and, therefore, accused Nos.1 & 2 have filed one appeal, whereas remaining accused persons have filed separate appeal who have been convicted for offence punishable under Sec.498-A read with 34 of the I.P.C.

2. The facts giving rise to the present case, in short, are thus -

One Vilas Mahadeo Patil - the complainant, is the resident of village Nerle. His daughter Aparna - the deceased was studying in 10th Standard. One Ashok Patil, cousin brother of the complainant and wife gave a proposal for the marriage of Aparna with Pratap Hanmant Pol - accused No.1. Accused No.2 is the father of accused No.1. Accused No.3 is the brother of accused No.1. Accused No.4 is mother of accused No.1 and Accused No.5 is the sister of accused No.1.

Accused No.1 was earlier married but had no child from his first wife and hence he and his parents intended to perform his second marriage and, therefore, proposal of marriage to Aparna was accepted and accused No.1 was married to deceased Aparna. After the marriage, they were living together at their home happily till Diwali. Thereafter when the complainant and his brother used to visit the house of the accused, they noticed that Aparna was not living with proper manner but was not ready to talk anything. Four months prior to the incident, when Aparna had gone to her parental home, she complained that all accused are giving ill-treatment to her, such as beating and abusing due to the reason that first wife of accused No.1 had delivered a child. Aparna also informed her parents that accused was telling her that she was no more required. Even on the occasion of second Diwali when deceased Aparna was taken to her parents' home, she complained that the accused was not allowing her to eat food at proper time and abusing her.

On 5-12-1997 at 9.30 p.m. Ashok Patil told the complainant that he received a message through someone from Tasgaon that Aparna suffered an attack. Thereafter jeep was called by the complainant and in that jeep the complainant, his wife, his brother, Ashok Patil, other relatives and neighbour went to the house of the accused at about 11.30 p.m. to 12.00 midnight. All the accused persons were present in the house. On enquiry, they informed that Aparna had died and cremation had taken place. When accused were asked as to why the complainant and the relatives were not informed, they were told that persons were sent with messages but they could not contact them and therefore they could not attend the funeral. The complainant and others returned to their village. Thereafter, after consulting the relatives, the complainant went to Kasegaon Police Station for lodging the complaint, however, as the incident had taken place at Tasgaon, the complainant went to Tasgaon police station and at last the complaint was lodged against the accused persons on 7-12-1997 and crime was registered at Crime No.279 of 1997 under Secs.498-A, 302, 201 read with 34 of the I.P.C. on 7-12-1997 at 6.00 a.m. On 7-12-1997 investigation commenced in which course panchnama of the spot i.e. house of the accused was prepared. Statements of witnesses were recorded and accused persons were put under arrest. One stick was recovered at the instance of accused No.1. Clothes of the accused No.1 were also seized under panchnama. Bones from the spot of cremation were sent to the Expert and on completion of the investigation chargesheet came to be filed against the accused under law.

3. The learned Addl. Sessions Judge framed charge against the accused for the impugned offences to which they pleaded not guilty. Defence of the accused is that of total denial of any criminal liability. Prosecution led its evidence at length on which basis the learned Judge came to the conclusion that accused Nos.1 & 2 were guilty of commission of the offence under Secs.498-A, 302, 201 read with 34 of the I.P.C., whereas the accused Nos.3, 4 & 5 were guilty only of commission of the offence under Sec.498-A read with 34 and proceeded to pass order of sentence against them in aforesaid manner. Hence the appeal.

4. We have heard Mr. Sudatta Patil, learned counsel for the appellants and Ms. Kantharia, learned A.P.P. for the State at length. We have also perused the entire evidence on record.

5. At the outset, it must be noted that prosecution has relied upon the testimony of 14 witnesses, out of which two are police personnel. The remaining witnesses are either panch witnesses or neighbours of accused persons who are examined either on the point of harassment of Aparna or on the point of their attendance of funeral of Aparna when they came to know about her death on the fateful day. Apart from this evidence, the evidence of PW-11 Vilas Patil - the complainant and father of Aparna, PW-12 Prabhawati Patil is worthy to note which is relied upon by the learned Trial Judge. At this juncture itself, we must note that all the material witnesses except parents of Aparna have chosen not to support the prosecution case and, therefore, they were declared hostile by the learned Trial Judge in the course of the trial. The learned Trial Judge, as can be seen from the judgment, has thought it fit to rely upon the testimonies of hostile witnesses in order to come to the conclusion that guilt of the accused persons for the impugned offence is established, especially when it is corroborated by the testimonies of parents of deceased Aparna, duly supported by circumstantial evidence. Therefore, we thought it fit to critically peruse the testimonies of 10 hostile witnesses. Panch witnesses are declared hostile and, therefore, the panchnama remained unproved though referred to by the investigating officer. So far as other hostile witnesses are concerned, it is seen that majority of those are examined by the prosecution to propound its theory that Aparna was under harassment from the accused persons and she died on the fateful day under the suspicious circumstances to the knowledge of those witnesses who also attended her cremation rites. However, it is to be noted that perusal of the testimony does not support the prosecution case about the alleged harassment or circumstance giving rise to the suspicion against the accused when it is alleged that accused persons killed her during the night. Evidently, Aparna suffered death during night and she was cremated next day early in the morning by the accused persons which funeral was attended by the said witnesses. No doubt that the very manner in which the accused persons hastily cremated Aparna is sufficient to give rise to grave suspicion, however, this circumstance by itself cannot be said to be the foundation to jump to the conclusion that accused persons killed Aparna especially in absence of any direct or indirect material piece of evidence on record. The testimonies of hostile witnesses in this case are utterly useless for our purpose, either to conclude regarding guilt of the accused or otherwise and, therefore, in our considered view, it would be safe to discard the testimonies of hostile witnesses from consideration altogether. No doubt that their testimonies do show that they attended the funeral of Aparna, however, there is not a whisper of a suggestion which can be gathered from their testimonies either Aparna was subjected to harassment or assault immediately prior to her death or earlier, nor there is any indication to suggest that there was any foul play while Aparna was allegedly cremated in hasty manner. Be as it may, the fact remains that the evidence of hostile witnesses is of no use and, therefore, cannot be taken into account at all.

6. So far as offence under Sec.498-A is concerned, it must be noted that, the parents of Aparna have testified to the effect that Aparna was happy at her maternal home till first Diwali but thereafter there was gradual change in her behaviour and she finally complained that she was not properly treated by her husband and accused No.1 used to abuse and harass her because his first wife had given birth to a child. Now it is the prosecution theory that though accused was married already, he contracted second marriage with Aparna because his first marriage could not begotten any child and, therefore, Aparna entered his life. Thereafter first wife remained pregnant and accused persons expressed that Aparna was no more required in the house as a result she was subjected to harassment. This is the tenor of prosecution evidence regarding the theory of harassment at the hands of the accused as contemplated under Sec.498-A of the I.P.C.

Provision of Sec.498-A reads thus -

"498-A. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.- For the purposes of this section, "cruelty" means -

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand."

Therefore, it is clear that, in the present case, the charge of cruelty against the accused persons would be under Explanation (b) of the said definition because there is no case of suicide prepounded by the prosecution and, therefore, Explanation (a) cannot be considered. So far as Explanation (b) to Sec.498-A is concerned, it must be noted that wording thereof is very clear enough to show that it is not even harassment or other type of cruelty that would attract Sec.498-A. Complainant has to conclusively establish that the beating and harassment in question was with a view to force the lady either to commit suicide or to fulfill the illegal demands of dowry. The Apex Court in the case of R. P. Vidhan Vs. State of Maharashtra, reported in 1993 Cr.L.J. 3019, has categorically observed that mere harassment or mere demand of property, etc. is not cruelty, it is only where harassment is shown to have been caused for the purpose of coercing the woman to meet demands that would amount to cruelty which has been made punishable under the section. Therefore, the alleged harassment at the hands of the accused, even it is assumed for a moment it is proved, of Aparna, for the reason that first wife of accused No.1 had begotten a son, would not come within the ambit of Sec.498-A of the I.P.C. and, therefore, we have no doubt whatsoever that the learned Trial judge has totally misread the said provision in the context of available record. In view of this position, the charge for the impugned offence under Sec.498-A of the I.P.C. against the appellants cannot withstand and thus the conviction thereunder against them has to be set aside.

7. So far as the evidence of murder and alleged causing of disappearance of evidence by burning the body of Aparna against the accused Nos.1 & 2 is concerned, the only circumstances against accused persons are that alleged harassment of Aparna at the hands of accused persons on the ground that she was no more required because first wife has begotton a child, and secondly that, after her death she was hurridly cremated without informing her parents and other relatives. These circumstances, in our view, would not be sufficient to jump to the conclusion that accused persons, in furtherance of their common intention committed murder of Aparna and cremated her hastily in the early morning in order to cause disappearance of evidence of their crime. No doubt that second circumstance i.e. hasty cremation of Aparna without waiting for her parents is a circumstance giving rise to the grave and serious suspicion against accused persons. However, in absence of any corroborative and other circumstantial evidence, such suspicion remains suspicion and cannot be converted into hard proof so as to conclude that in all the probabilities the accused persons killed Aparna and caused disappearance of evidence by cremating her hastily without informing her parents and other relatives. The Apex Court in the case of Sharad B. Sarda Vs. State of Maharashta, reported in A.I.R. 1984 SC 1622, has laid down certain criteria for acceptance of circumstantial evidence. Five conditions are required to be fulfilled before accepting the circumstantial evidence on record. Those are-

"(i) The circumstance from which an conclusion of guilt was sought to be drawn, should be fully established. The circumstances concerned "must or should" and not "may be" should be established ;

(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) The circumstances should be of conclusive nature and tendency.

(iv) They should exclude every possible hypothesis except that one to be proved and;

(v) There must be chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

Therefore, in our considered view, the circumstances proved by the prosecution on record in this case are merely sufficient to raise grave and serious suspicion against accused persons but those are not sufficient to conclude that accused are the persons who have committed murder of Aparna and have caused disappearance of evidence by cremating her without informing her parents. We have critically perused the reasoning adopted by the learned Trial Judge and must note that he has relied more on surmises and conjectures than on hard proof of facts, which cannot be allowed in law.

8. In the result, we have no option but to set aside the order passed by the learned Trial Judge.

9. For the reasons recorded above, we hold that prosecution has failed to establish the guilt of the accused appellants for offences with which they were charged and, therefore, they are entitled to benefit of doubt.

10. In the result, both appeals are hereby allowed.

The impugned order dated 10-6-1999 passed by the 4th Addl. Sessions Judge, Sangli passed in Sessions Case No.58 of 1998 is hereby set aside. All the appellants involved in both appeals are hereby acquitted of all the charges levelled against them. They shall be set at liberty forthwith, if not required in any other case. The fine amount, if deposited, be refunded.

Appeals allowed.