Malti Thaokar vs The State Of Maharashtra & Anr.

(PER: ROHIT W. JOSHI, J.)

The appellant in the present appeal is mother of deceased, Archana, who died on 05.05.2009. According to the appellant, Archana was murdered by her husband/accused, by administering poison to her. The appeal is preferred by the appellant as a victim under Section 2 (wa) of the Code of Criminal Procedure, 1973 (CrPC) since she is mother of the deceased. The appellant had lodged a report with respect to demise of her daughter with Sakkardara Police Station Nagpur on 05.05.2009 on the basis of which the offence under Section 302 of the Indian Penal Code, 1860 (IPC) came to be registered against the accused vide FIR No.127 of 2009.

After completing the investigation, charge sheet came to be filed and since the case was found to be exclusively triable by Court of Sessions, the learned Magistrate committed the case to the learned Sessions Court. The learned Sessions Court framed charge against the accused for offence punishable under Section 302 of IPC, vide Exhibit 2. In order to bring home the charge, the prosecution examined the appellant/informant who is mother of the deceased as P.W. 1, sister of the deceased as P.W. 2, cousin of the deceased as P.W. 3, the doctor who conducted post-mortem as P.W. 5 and the investigation officer as PW6.

As per the prosecution case, the marriage of the deceased and accused was solemnised on 20.04.2009. The prosecution case is that on 05.05.2009 at around 6.50 pm, the accused murdered the deceased by administering poison to her. In the post-mortem report, the cause of death was not immediately mentioned. However, upon receiving Chemical Analyser’s Report, the cause of death is recorded as consumption of insecticide.

P.W.1, the mother of the deceased has stated in her deposition that marriage of the deceased was solemnised with the accused on 20.04.2009. She has stated that on 21.04.2009, the relatives of the deceased on her parental side had been to the house of the accused for Satyanarayan Puja and had returned on the night of 21.04.2009. It is stated that on 22.04.2009, there was Satyanarayan Puja in the parental house of the deceased and the accused had been to their house for Satyanarayan Puja. Thereafter, the accused had taken his wife, the deceased, to the marital home. According to P W. 1, on 24.04.2009, her husband had been to the house of the accused to bring back his daughter at parental home where she stayed till 30.04.2009. It is stated that on 30.04.2009, the deceased was taken by her father to her marital home in the evening. According to P.W.1, on 30.04.2009, Radhika, sister of the accused had called her at around 12 midnight informing that the deceased had shouted from her room. P.W.1 has stated that she asked Radhika to solve the problem. She also states that she had asked Radhika to give phone to the accused. However, the accused told her that he was not able to talk on phone. According to P.W.1, on the next day, she had again called Radhika to make enquiries about what had transpired in the night. She says that the deceased informed her that the accused had caught her by both hands and had put his leg on her neck and therefore she had shouted. P.W. 1 states that the sister of the accused, Radhika, informed her that there was quarrel between the husband and wife in relation to a gold chain. The P.W. 1 has stated that she had been to the house of the accused on 02.05.2009 and stayed there for two days till 04.05.2009 and returned to her home in the evening on 04.05.2009. The fateful incident has occurred on 05.05.2009. According to P.W.1, the deceased had called her at around 11 am ON 05.05.2009 and said that the accused had threatened to kill her and that in the fit of rage, he had broken glass of an almirah and also gone to throw a cooler. P.W.1 has stated that she had again made a phone call to the deceased to enquire as to whether her husband/accused had returned home. She states that the deceased informed her that her husband/accused had returned home and a short time thereafter, the deceased had again called her mother/informant/P.W. 1, stating that the accused had forcibly administered some poisonous substance to her. P. W. 1 has stated that the deceased had also informed about administration of poison to one Bandu Lute, son of informant's sister. She states that she, her daughter P. W. 2, and the said Bandu went to the house of the accused and found that a large number of persons had gathered there. P. W. 1 has stated that on making enquiries with Radhika, she was informed that deceased was suffering from epilepsy and that one Shankararao, son of sister of informant, took her to hospital. P. W. 1 has thereafter stated that the doctor at the hospital had advised to take the deceased to Medical College Hospital, since it was a case of administration of poison. She has alleged that the accused had forcibly administered poison to her daughter and had accordingly committed murder of her daughter.

In her cross-examination, suggestions were given that the deceased did not want to marry the accused and was not happy with the marriage. Suggestions were given that she was in love with some other boy whom she wanted to marry. However, the parents did not agree and forcibly married her to the accused. It was suggested that the marriage was not consummated. A suggestion is also given that the deceased consumed poison since she did not want to marry the accused. She has denied all these suggestions.

The sister of the deceased/P. W. 2, has deposed on similar lines. However, she has also stated in the examination-in-chief that during the course of conversation on 01.05.2009, the deceased informed the family members that the accused was demanding a gold chain. She has also stated that on 02.05.2009, the accused had called her demanding an amount of Rs.50,000/- and had threatened that if the demand was not met, he would kill his wife/sister of P. W. 2. She has stated that on 02.05.2009, she and her mother had been to the house of the accused and accused told them that the demand of gold chain was not met and therefore he had assaulted the deceased. She has also stated that on 05.05.2009, the deceased had called her stating that if the amount is not paid, her husband would kill her. She has stated that on 05.05.2009 at around 8.45 to 9 pm, they had received a phone call from the deceased informing that the accused had administered poison to her.

During the course of cross-examination, omissions with respect to alleged monetary demand of Rs.50,000/- was brought on record. Likewise, omissions with respect to this witness visiting the house of the accused along with her mother on 02.05.2009 is also brought on record. The statement that on 05.05.2009, she had received a phone call from the deceased asking to pay the amount to the accused otherwise she will be eliminated is not recorded in the police statement. This omission is also brought on record.

Mr. R. M. Daga, the learned advocate for the appellant vehemently argues that although there are allegations with respect to demand of dowry, charge under Section 498-A is not framed. The learned advocate further contends that charge ought to have been framed under Section 304-B of the IPC as well in view of allegations of demand for dowry.

Perusal of evidence of P.W. 1 and P.W. 2 will demonstrate that the allegations of demand of amount of Rs.50,000/- do not find place in the examination-in-chief of the P.W. 1/mother. These allegations are made for the first time in the evidence of P.W. 2. The evidence of P.W. 2 indicates that even P.W. 1 was aware about the alleged monetary demand. It is also relevant to state that in the oral report lodged by P.W. 1 also there is no reference to any demand for money. With respect to demand for gold chain as well, perusal of evidence of P.W. 1 will indicate that she has not specifically deposed that the accused ever demanded a gold chain to her. She has only stated that the sister of the accused, Radhika, informed her that there was quarrel between the accused and the deceased in the night intervening 30.04.2009 and 01.05.2009 in relation to gold chain. Radhika is not examined by the prosecution.

Perusal of the evidence of P.W. 1/mother will further demonstrate that although she has stated that she has stayed in the house of the accused and deceased from 02.05.2009 to 04.05.2009, the accused did not make any demand for gold chain. The allegations with respect to demand for gold chain and amount of Rs 50,000/- clearly appear to be an afterthought.

Perusal of the evidence of P.W. 1 will further indicate that the deceased had stayed with the accused only for a few days after her marriage. The marriage was solemnized on 20.04.2009. On 22.04.2009, there was Satyanayan Puja in the house of parents of the deceased. On 24.04.2009, the father of deceased took her back to the parental home and she returned to the marital matrimonial home on 30.04.2009. On 02.05.2009, the mother of the deceased had come to reside in the matrimonial house and stayed there till 04.05.2009. The incident has occurred on 05.05.2009.

It is the case of prosecution that the deceased had called her mother complaining about forcible administration of poison by the husband/accused. However, the learned Sessions Judge has recorded a specific finding on the basis of call details record of the deceased which is at Exhibit 37 that on 05.05.2009 there was only one phone call on the mobile phone of P.W. 1. The said phone call was received on 05.05.2009 at 8.43 pm. The learned Sessions Court has recorded a specific finding that except for that one call, there were no incoming or outgoing call to or from the cell phone number of P.W. 1. The learned Sessions Court has therefore disbelieved the prosecution case that the deceased had informed her mother that the accused had administered poisonous substance to her.

The prosecution case also appears to be unbelievable for the reason that if a person wants to eliminate another by administering poisonous substance, he would not leave the cell phone of the person to whom the poison is administered so that the person can call others for help or inform about the incident to others.

The learned Sessions Court has also recorded proper findings that if any poisonous substance was forcibly administered with him/her to the deceased, the deceased would try to offer some resistance, she would raise a hue and cry, she would have alerted other people about the said incident. However, nothing of the sort is done. The learned Sessions Court has further observed that although the deceased did not seek help or offer any resistance, she had called her mother who resides at Kamptee and such conduct of the deceased is unnatural. Apart from this, the learned Sessions Court has also recorded that prosecution did not collect any evidence regarding purchase of the insecticide by the accused.

The learned Sessions Court has also referred to the post-mortem report which recorded that there were no signs of old sexual intercourse on examination of the deceased. The learned Sessions Court has observed that it is the case of accused that the deceased was not happy with her marriage with the accused since she had a love affair with some other boy. Consistently, suggestions to prosecution witnesses in this regard have been given. The learned Sessions Court found the defence of the accused probable in view of the post-mortem report that the marriage was not consummated since the deceased was not happy with the marriage. The learned Sessions Court has also referred to evidence of P.W. 3 which indicated that the accused was present in the hospital along with the deceased.

Perusal of the evidence of the prosecution will indicate that that the mother did not make any statement with respect to demand for amount of Rs 50,000/-. The sister for the first time made this allegation in her examination-in-chief. Likewise, evidence of mother does not indicate that there was a demand for gold chain although there is a reference that there was dispute between the accused and deceased in relation to gold chain. However, this statement of P. W. 1 is not based on her personal knowledge. She has also not stated that her daughter informed her that the accused was demanding a gold chain. P. W. 1 has stated that the sister of accused informed her about quarrel between accused and the deceased in relation to gold chain.

The evidence of daughter of P. W. 1 clearly indicates an attempt to implicate the accused in relation to demand for dowry. It is surprising that allegations which have not appeared in the evidence of the mother or even in the police complaint lodged by her are appearing for the first time in the evidence of P. W. 2. This indicates an attempt to implicate the accused in the offence. Merely because the Chemical Analyzer’s report reveals that the death is due to consumption of an insecticide, it cannot be held that the accused has administered the said substance to the deceased.

Although Mr. Daga contends that in view of unnatural death within a period of seven years from the date of marriage, there is a statutory presumption that the death is a dowry death, in our considered opinion, the said contention cannot be accepted in the facts of the present case, since the evidence on record does not reveal that the deceased was subjected to cruelty or harassment by the accused or any relative of the accused in relation with any demand for dowry. The presumption under section 304-B arises only when cruelty or harassment to the wife by the husband or any relative of the husband in relation to demand for dowry is proved. Such evidence in the present case is missing in the deposition of P. W. 1, mother of the deceased and has come for the first time in the evidence of the sister of the deceased. However, the sister of the deceased also does not state that she alone was aware about the alleged demand. According to her, the mother was also aware about the demand for amount of Rs.50,000/- and gold chain by the accused. The defence of the accused that the marriage was not consummated since the deceased was not happy with the marriage appears to be probable as is rightly recorded by the learned Sessions Court.

Having regard to the evidence that has come on record, in the considered opinion of this court, no case is made out for interference with a well-reasoned judgement delivered by the learned Sessions Court. The prosecution has completely failed to make out a case either of subjecting the deceased to cruelty in relation to demand for dowry or Section 302 or Section 304-B of the IPC. Appeal is, therefore, dismissed.