2013 ALL MR (Cri) 2709
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.K. TAHILRAMANI AND S.S. JADHAV, JJ.

Vishnu Vithal Salgar & Ors. Vs. The State Of Maharashtra

Criminal Appeal No. 45 of 2007

9th January, 2013

Petitioner Counsel: Mr. P.R. ARJUNWADKAR
Respondent Counsel: Mrs. P.P. BHOSLE

Penal Code (1860), Ss.498A, 302, 304B, 34 - Dowry death - Evidence and proof - Harassment and ill treatment proved - Medical evidence showing possibility that victim had committed suicide by hanging and accused had not caused homicidal death - Prosecution established victim's coercion to fetch Rs.50,000/- - Having analysed entire evidence on record it can be held that deceased was subjected to cruelty by accused for payment of dowry - Conviction u/s.302 needs to be quashed but conviction u/s.304-B would be proper. (Paras 10, 13)

JUDGMENT

SMT. SADHANA S. JADHAV, J. :- The appellants herein are convicted for the offence punishable under Section 498A read with Section 34 of IPC and are sentenced to suffer R.I. For one year and to pay fine of Rs.1,000/- in default to suffer S.I. for three months. They are also convicted for the offence punishable under Section 304-B of IPC and are sentenced to suffer R.I. For seven years and to pay fine of Rs.1,000/- each in default to suffer S.I. for three months by the IV Adhoc Additional Sessions Judge, Solapur in Sessions Case No.304 of 2005 by a Judgment and order dated 10th November, 2006.

2. Being aggrieved by the said Judgment and order, the appellants have preferred the present Criminal Appeal.

3. Such of the facts, which are necessary for the decision of this Appeal, are as follows :-

The appellant No.3 happens to be the son of appellant Nos. 1 and 2. Ganesh was married to Gayatri on 5th May, 2003. At the time of settlement of the marriage, it was decided between the parties that Ganesh would be given jewellery of Rs.11,000/-, household utensils, clothes and one tola gold. That Gayatri was treated well for one year and thereafter all the accused started demanding dowry amount of Rs.11,000/- which was not paid at the time of marriage. That she was harassed on that account. She disclosed about her ill-treatment to Malappa Salgar, who happens to be the brother-in-law of Gayatri. In January, 2005, Rs.11,000/- were paid to the accused persons. Thereafter, Gayatri was being allegedly ill-treated and she could not conceive a child. She was humiliated on that count. She was further coerced to fetch Rs.50,000/-.

In Jan. 2005, Rs. 11000/- were paid to accused persons thereafter Gayatri was being allegedly ill-treated as she could not conceive a child. She was humiliated on that account. She was further coerced to fetch Rs. 50000/-. She was harassed on that count. Malappa Salgar met her in-laws and her husband and requested them not to ill-treat her. On 12/7/2005 Malappa was informed by rickshawala that Gayatri had vomited twice. She was ill and therefore admitted in hospital. The relatives rushed to the hospital. The police were present. Gayatri had expired. The relatives claimed that they have seen some marks on her neck. A.D. No. 26 of 2005 was registered. Investigation was set in motion after cremation of Gayatri. Malappa lodged a report to the police station and alleged that her family member i.e. present appellants had caused homicidal death of Gayatri. On the basis of the said report Crime No. 77 of 2005 was registered against the accused for offence punishable under Section 302 r/w 34 of Indian Penal Code. Investigation was completed and chargesheet was filed on 10/10/2005. The case was committed to the Court of Sessions and registered as Sessions Case No. 304 of 2005. The prosecution examined 13 witnesses to bring home the guilt to the accused.

4. P.W. 1 Balasaheb Patil was the panch for inquest panchanama. He has been declared hostile by the prosecution. P.W. 2 Iranappa Patil was a panch for the spot. He ha also declared hostile.

5. P.W. 3 Malappa Salgar is the brother in law of deceased Gayatri @ Manjula, who has set law into motion by filing FIR. However, he has resiled from his earlier statement and has been declared hostile.

P.W. 4 is Yuvraj Chafkarande. According to him, on 12/7/2005 he had been to funeral of father of sarpanch of that village. On the way he had learnt about Gayatri @ Manjula's death. He learnt from the people around that Manjula had vomited and she was brought home from the temple of Nagoba. Accused No. 3 had given information to police on 12/7/2005 about the incident.

6. P.W. 5 is the maternal aunt of Manjula. She had looked after the children after the demise of Meenabai i.e. the mother of deceased Manjula. According to her, Meenabai's husband was residing at Gujarat much prior to the death of Meenabai and therefore, she was looking after the children i.e. Gaytri @ Manjula, Jaya and Narendra. She had settled the marriage of Manjula as the whereabouts of father of Majula was not known. Accused No. 1 happens to be the cousin of P.W. 5 Champabai. She has deposed before the Court that Manjula was being harrassed by the accused persons as they were demanding Rs. 50,000/- and were asking her to bring that amount from her father from the sale proceeds of the land for purchasing an auto rickshaw. Manjula had also accordingly informed P.W. 5 about the same. However, P.W. 5 had consoled her and suggested to her that matrimonial affairs will be resolved by passage of time and that she should have patience. On 12/7/2005 she was telephonically informed that Manjula was serious. They had learnt that Manjula was admitted in Chidgupkar hospital and therefore, they went to the hospital but Manjula was taken back home as she had died. The accused persons were about to dispose of the dead body but P.W. 5 had objected. The attention of P.W. 5 was drawn to her previous statement and she has deposed that although she had stated to the police that the accused were about to dispose of the dead body, the said contention does not find place in her previous statement. There are material omissions in the depositions of P.W. 5.

7. P.W.6 Balbhim Gavde is the father of deceased Manjula. According to him, Manjula had informed him teldephonically that she was harrassed on account of demand of dowry and that the accused persons were demanding Rs. 50,000/- for purchasing auto rickshaw.

P.W.7 Satyabhama Khandekar has deposed before the Court that P.W. 6 had sold the land to her in order to fulfill the demands of the accused persons.

8. P.W. 8 Dr. Ujwala Kshitriya has performed autopsy on the dead body of Manjula. On external examination, she found that :

(1) There was a ligature mark of reddish black colour 15 cms. X 1 cm. at the level of thyroid cartilage obliquely running upwards back wards the nepe of neck, grooved, Subcutaneous tissue below the ligature is pale whitish pachment like with few patchael haemorrhage spots. Neck muscles conjested and oedematuos. Abrasion on chest near right costal margin 5 cms. X ½ cms brown.

9. P.W. 8 had issued the death certificate. The cause of death was asphyxia due to compression on neck. Post mortem notes are at Exh. 29. The cause of death certificate is at Exh. 30. P.W. 8 has specifically deposed that in case of handing, ligature mark is found oblique. In case of handing the subcutaneous tissues are found pale and whitish. Looking to the circumstances and the symptoms mentioned in the post mortem report, the possibility of hanging is more. The strangulation is mostly homicidal and hanging is mostly suicidal.

10. In view of the medical evidence, there is every possibility that Manjula had committed suicide by hanging and that the accused had not caused homicidal death of Manjula. Although there is recovery of rope at the instance of the accused No. 3, in view of the medical evidence, said recovery would lose its significance.

11. P.W.13 Haribhau Khade is the investigating officer. He has categorically stated that the accused No. 3 had lodged report to the police station contending therein that his wife fallen unconscious due to vomiting. Thereafter, accidental case was registered bearing A.D. No. 26 of 2005. P.W. 13 had investigated the A.D. According to him, at the time of inquest panchanama the relatives of the deceased had complaint that the death of Gayatri @ Manjula was suspicious. It was only after receipt of the cause of death certificate and after the cremation of Manjula, first information was lodged against the accused persons. P.W. 13 has proved the omissions and contradictions in the evidence of the prosecution witnesses. He has admitted in the FIR that till receipt of cause of death certificate, cause of death can not be ascertained, as there was nothing to suspect homicidal death.

12. Section 304-B contemplates where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have cause her death.

13. In the present case, the prosecution has established that Manjula was being coerced to fetch Rs.50,000/- for purchase of auto rickshaw. Her father had sold land to fulfill the demand and hence, it can be said that it is a case of dowry death and not homicidal death. The learned Counsel appearing for the appellants has rightly submitted that the appellants cannot be convicted for offence punishable under section 302 of Indian Penal Code as well as under Section 304 B of Indian Penal Code. The death of Manjula cannot be said to be said to be homicidal and also death due to hanging as opined by P.W. 8. The conviction of the appellants under Section 302 of Indian Penal Code therefore, needs to be quashed and set aside. By drawing presumption under Section 113 B of the Evidence Act, 1872, the appellants needs to be convicted for offence punishable under Section 304 B of Indian Penal Code. Having analysed entire evidence on record, it can be safely held that the deceased was subjected to cruelty by the appellants for payment of dowry since before her death for which she committed suicide, conviction of the appellants under Section 304 B of Indian Penal Code must therefore be upheld. Presumption of dowry death is inherent. Section 304 B of Indian Penal Code contemplates punishment of imprisonment which shall not be less than 7 years but which may extend to imprisonment for life. The Appellant herein are in jail since 13/7/2005. They have undergone actual imprisonment for more than 7 years and hence, they are sentenced to the period undergone.

14. Hence, we pass following order :

The Appeal is partly allowed.

(1) Judgment and Order dated 10/11/2006 by the IV Ad-hoc Additional Sessions Judge, Solapur in Sessions Case No. 304 of 2005 is hereby quashed and set aside.

(2) Conviction of the Appellants for offence punishable under Section 302 r/w 34 of Indian Penal Code is quashed and set aside. The appellants are convicted for the offence punishable under section 498A r/w 34 of Indian Penal Code and are sentenced to suffer R.I. for one year and to pay fine of Rs. 200/- each i.d. S.I. for 8 days.

(3) The appellants have undergone the substantive sentence as well as default sentence for offence punishable under Section 498A of Indian Penal Code. The Appellants are convicted for offence punishable under Section 304-B of Indian Penal Code. Substantive sentence awarded by the Sessions Court for offence punishable under Section 304B of Indian Penal Code is maintained. The appellants have undergone the substantive sentence as well as the default sentences in view of fine and hence they be released forthwith, if not required in any other offence.

Appeal partly allowed.