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Judgment
S.S. SHINDE, J.
1.As all these three Criminal Appeals are arising out of one and the same Judgment and order passed by the trial Court, all these Appeals are being
decided by this common Judgment.
2.In Sessions Trial No.121 of 2001 there were in all five accused, namely, accused No.1Â Baliram s/o Mahadu Avhad, accused No.2Â Vaijinath s/o
Baliram Avhad, accused No.3 Â Bhagwan s/o Baliram Avhad, accused No.4 Â Sow. Gayabai w/o Baliram Avhad and accused No.5 Â Meerabai
w/o Bhagwan Avhad.
3.By Judgment and Order dated 7th January, 2003 in Sessions Trial No.121 of 2001, 4th Additional Sessions Judge, Parbhani convicted accused No.2
 Vaijinath Avhad and accused No.4 Gayabai Avhad for the offence punishable under Section 498ÂA and 304ÂB of the Indian Penal Code (for
short ""I.P. Code""). For the offence under Section 498ÂA of the I.P. Code, accused No.2Â Vaijinath is sentenced to suffer rigorous imprisonment for
one year and to pay fine of Rs.300/Â, in default, to suffer rigorous imprisonment for one month. For the offence under Section 304ÂB of the I.P.
Code accused No.2 Â Vaijinath is sentenced to suffer rigorous imprisonment for seven years. For the offence under Section 498ÂA read with 34 of
the I.P. Code, accused No.4Â Gayabai is sentenced to suffer simple imprisonment for three months and to pay fine of Rs.100/Â, in default, to suffer
simple imprisonment for fifteen days. For the offence punishable under Section 304ÂB read with 34 of the I.P. Code, accused No.4 Gayabai is
sentenced to suffer rigorous imprisonment for seven years. It is directed that both the sentences shall run concurrently. The trial Court acquitted
accused Nos.2 Vaijinath and accused No.4 Gayabai for the offence punishable under Section 306 read with 34 of the I.P. Code. The trial Court
acquitted accused No.1 Â Baliram Avhad, accused No.3 Â Bhagwan and accused No.5Â Meerabai for the offence punishable under Section 498Â‐
A, 306 and 304ÂB read with 34 of the I.P. Code.
4.Criminal Appeal No.50 of 2003 is filed by original accused No.2Â Vaijinath and accused No.4Â Gayabai, challenging their conviction and sentence
for the offence punishable under Sections 498ÂA and 304ÂB read with 34 of the I.P. Code.
5.Criminal Appeal No.326 of 2003 is filed by the State challenging the acquittal of original accused No.1 Â Baliram Avhad, accused No.3Bhagwan
Avhad and accused No.5Â Meerabai Avhad for the offence punishable under Section 498ÂA, 304 and 306 read with 34 of the I.P. Code.
6.Criminal Appeal No.329 of 2003 is filed by the State for enhancement of the sentence awarded by the trial Court to original accused No.2 Â‐
Vaijinath Avhad and accused No.4 Â Gayabai Avhad.
7.The prosecution case, in brief, is as under:
A)Ashamati was married with accused No.2 Â Vaijinath about two years prior to her death which occurred on 29th April, 2001. Accused No.1 Â‐
Baliram is father, accused No.3Â Bhagwan is the brother and accused No.4 Â Gayabai is the mother of accused No.2 ÂVaijinath. Accused No.5 Â‐
Meerabai is the wife of accused No.3 Bhagwan.
B)At the time of marriage, parents of Ashamati had agreed to pay an amount of Rs.20,000/Â and a golden ring weighing 5 grams towards dowry.
Parents of Ashamati paid Rs.10,000/Â and golden ring weighing 5 grams at the time of marriage. They had promised to pay balance dowry amount of
Rs.10,000/Â subsequently.
C)About one month after marriage accused persons started subjecting Ashamati to cruel treatment on account of balance dowry amount of
Rs.10,000/Â. Whenever Ashamati was visiting her parents house, she used to inform about cruel treatment at the hands of accused to her family
members. The father and brother of Ashamati had attempted to convince accused persons. As there was no improvement in the behaviour of
accused, Ashamati stayed with her parents for about 4 to 5 months. Thereafter Pandharinath, brother of deceased Ashamati, Balasaheb Wamanrao,
maternal uncle of Ashamati alongwith some other persons, had been to house of accused. Pandharinath and others requested accused persons to
maintain Ashamati properly with a promise to pay balance dowry amount at the earliest. Accused No.4 Gayabai gave threat that in case of failure to
pay balance dowry amount, Pandharinath and his family members could not see Ashamati.
D)Subsequently, on 28th March, 2001, on account of marriage of younger brother, Ashamati had been to her parental house. On that occasion also
she informed about cruel treatment at the hands of accused persons. Soon after marriage, Pandharinath had gone to the house of accused alongwith
Ashamati. None of the accused had attended the marriage, A table fan of ""Cinny"" make was given to accused No.2 Vaijinath by way of traditional
present. All accused demanded balance amount of dowry and accused No.4 Gayabai gave threat of causing death of Ashamati on failure to pay
balance dowry amount of Rs.10,000/Â.
E)On 21st April, 2001 Pandharinath, brother of Ashamati, had gone to Pokharni. All accused persons and Ashamati were found in the temple at
Pokharni. Accused persons had arranged ""Abhishek"" to Lord ""Narsinha"" and hosted meals for about 500 to 1000 people from village Pokharni.
Pandharinath had attempted to talk with Ashamati, but accused persons had not permitted Ashamati to talk with him.
F)On 29th April, 2001, Pandharinath and his family members received a message from one Ananta Manjulnath, that Ashamati was missing from the
house of accused since early morning. Immediately, Pandharinath and others went to village Daithana. Inspite of extensive search, Ashamati was not
found. At about 4.30 p.m., Pandharinath returned back to his village Narsapur.
G)On 30th April, 2001, one Limbaji Rambhau informed Pandharinath and his family members that the dead body of Ashamati was found floating in
the well situate in the land of Eknath Sopan Avhad. At about 4.00 p.m. after receiving this message, Pandharinath and other family members went to
Daithana. The dead body of Ashamati was found in the well situate in the land of Eknath Avhad.
H)On the very day, i.e. on 30th April, 2001, Pandharinath, elder brother of Ashamati, filed First Information Report in Daithana police station on the
allegation that accused persons subjected Ashamati to cruel treatment on account of demand for balance dowry amount and because of such cruel
treatment, Ashamati committed suicide. Crime No.26 of 2001 under Sections 498ÂA, 304ÂB and 306 read with 34 of the I.P. Code was registered in
Daithana police station.
I)Investigation was entrusted to P.S.I. Sampate. The dead body of Ashamati was referred for postÂmortem after inquest panchnama was drawn.
The panchnama of scene of offence was drawn. Statements of witnesses were recorded. Viscera was forwarded to C.A. After receipt of postÂ‐
mortem report and report of C.A., chargeÂsheet came to be filed against accused persons. Learned Magistrate has committed the case to the Court
of Sessions, Parbhani in due course.
8.A charge for an offence punishable under Sections 498ÂA, 304ÂB and 306 of the I.P. Code was framed against all the accused persons and the
same was read over and explained to them. All accused persons pleaded not guilty and claimed to be tried. As per the statements under Section 313
of the Code of Criminal Procedure, it is the defence of the accused that they never subjected Ashamati to cruel treatment. They had received entire
dowry amount at the time of marriage. Ashamati died accidentally due to fall in the well when she had gone for attending nature's call. Ashamati had
not committed suicide. On account of untimely death of Ashamati, accused are falsely involved.
9.After recording the evidence and conducting full fledged trial, the trial Court convicted accused No.2 Â Vaijinath and accused No.4 Â Gayabai for
the offence punishable under Sections 498ÂA and 304ÂB of the I.P. Code and sentenced them to suffer imprisonment and to pay fine, as aforeÂ‐
stated. Hence Criminal Appeal No.50 of 2003 is filed by accused Nos.2 and 4. The trial Court has acquitted accused Nos.1, 3 and 5 from all the
charges with which they were charged. Hence Criminal Appeal No.326 of 2003 is filed by the State challenging the acquittal of accused Nos.1, 3 and
5, as aforeÂstated. Criminal Appeal No.329 of 2003 is filed by the State for enhancement of sentence imposed by the trial Court on accused Nos.2
and 4, as aforeÂstated.
10.Learned counsel appearing for original accused Nos.2 and 4 Â Appellants in Criminal Appeal No.50 of 2003 submits that accused Nos.2 and 4
have been falsely implicated in the present case. They never subjected to any cruelty to Ashamati. He submits that it is not the case of the
prosecution that Ashamati died homicidal death, but it is the case of the prosecution that Ashamati committed suicide. Referring to the evidence of
PWÂ1 Dr. Muna Afreen, who conducted postÂmortem on the dead body of Ashamati, learned counsel submits that PWÂ1 Dr. Muna Afreen
specifically stated in her crossÂexamination that, in such cases it cannot be ascertained whether the death caused is accidental or suicidal. Learned
counsel therefore submits that the prosecution has failed to establish conclusively that Ashamati had committed suicide. Learned counsel further
submits that Ashamati died accidentally due to fall in the well when, early in the morning, she had gone for attending nature's call. Learned counsel
further submits that accused Nos.2 and 4, both are innocent and they have not at all committed any offence. It is therefore submitted that Criminal
Appeal No.50 of 2003 deserves to be allowed.
11.As against this, learned A.P.P. appearing for the State submits that while settling the marriage, it was decided that parents of Ashamati would pay
an amount of Rs.20,000/Â towards dowry. However, due to financial difficulties, father of Ashamati had paid only Rs.10,000/Â and it was stated that
remaining dowry amount would be paid subsequently. Referring to the evidence of PWÂ2 Pandharinath, PWÂ3 Balasaheb and PWÂ4 Bhaurao,
learned A.G.P. submits that due to non payment of dowry amount, the accused persons subjected Ashamati to the illÂtreatment and therefore she
committed suicide. He further submits that the prosecution has proved beyond reasonable doubt that due to the illÂtreatment at the hands of all the
accused persons, Ashamati committed suicide and therefore the trial Court should not have acquitted the accused Nos.1, 3 and 5. He further submits
that though the trial Court has held accused Nos.2 and 4 guilty for the offence punishable under Sections 498ÂA and 304ÂB of the I.P. Code, the
sentence awarded to them is very less and therefore it is submitted that Appeal for enhancement of sentence deserves to be allowed. Learned A.P.P.
therefore prays that Criminal Appeal No.50 of 2003, filed by the accused Nos.2 and 4 may be rejected, and Criminal Appeal Nos.326 of 2003 filed
against acquittal of accused Nos. 1, 3 and 5, and Criminal Appeal No.329 of 2003 filed for enhancement of sentence imposed on accused Nos.2 and 4
may be allowed.
12.We have considered the submissions of the learned counsel appearing for the Appellants and learned A.P.P. appearing for the State. We have
carefully perused the entire original record. To prove its case, the prosecution has examined five witnesses.
13.The prosecution has examined PWÂ1 Dr. Muna Afreen d/o Abdul Gaffar. She deposed that on 1st May, 2001 she was serving as medical officer
in the Primary Health Centre, at Daithana. The dead body of Ashamati w/o Vaijinath Avhad was referred for postÂmortem on 1st May, 2001. PWÂ1
and Dr. Devale conducted postÂmortem on the dead body of Ashamati. Accordingly, they prepared postmortem report. She deposed that postÂ‐
mortem report Exhibit 19 bears her signature and the contents of the same are correct. She further deposed that as per their opinion, the cause of
death of Ashamati was due to asphyxia due to drowning. Viscera was preserved and forwarded to C.A. In the viscera, poison was not revealed as
per report of C.A..During the course of crossÂexamination, PWÂ1 Dr. Muna Afreen stated that, in such cases it cannot be ascertained whether the
death caused is accidental or suicidal.
14.It is the case of the prosecution that death of Ashamati was suicidal, as against this, it is the case of the accused that death of Ashamati was
accidental. It is clear from the evidence of the medical officer who has conducted postÂmortem on the dead body of Ashamati, that she was not sure
whether the death of Ashamati was accidental or suicidal.
15.The prosecution has examined PWÂ2 Pandharinath Gangadhar Jamare, who is an informant in this case. He deposed that the deceased Ashamati
was his real sister. About two years prior to her death, Ashamati was married with accused No.2 Vaijinath. Accused No.1 Baliram is the father,
accused No.4 Gayabai is mother, accused No.3 Bhagwan is brother of accused and accused No.4 Meerabai is the wife of accused No.3 Bhagwan..
PWÂ2 Pandharinath further deposed in his examinationÂinÂchief that, at the time of marriage, they had agreed to pay dowry amount of
Rs.20,000/Â and the golden ring weighing 5 grams. At the time of marriage, they paid Rs.10,000/Â and golden ring of 5 grams. It was agreed that the
balance amount shall be paid after harvesting season. Soon after marriage, Ashamati started to reside with accused at village Daithana. Within about
one month soon after marriage, all accused persons started insisting Ashamati for bringing balance amount of dowry of Rs.10,000/Â from her parents.
All the accused were subjecting Ashamati to cruel treatment. Whenever Ashamati used to visit their house on the occasions of festivals, she was
informing about cruel treatment at the hands of the accused persons. Pandharinath himself and his father used to convince the accused persons that
the balance amount shall be paid after harvesting season. At the time of Panchami festival, they had brought Ashamati to their house. Ashamati
stayed with them from Panchami festival upto Makar Sankrati festival. Then she went back to her matrimonial house along with maternal uncle
Balasaheb Wamanrao Punjare, Bhaurao Shesherao and Devidas Marotirao Jambre.Pandharinath had also gone to Daithana along with Ashamati and
other persons. On that occasion, all the accused persons demanded balance amount of Rs.10,000/Â. Particularly accused No.4 gave threat that if the
balance amount of Rs.10,000/Â is not paid, they shall not be able to see even the nail of Ashamati..PWÂ2 Pandharinath further deposed
that,subsequently, on 28th March, 2001, marriage of his younger brother was solemnized and on that occasion, they had brought Ashamati to their
house. Ashamati informed them that accused persons were subjecting her to cruel treatment because of nonÂpayment of balance amount of
Rs.10,000/Â. Accused No.2 Â Vaijinath used to beat Ashamati on and often, whereas the remaining accused were insisting Ashamati to bring
balance amount of Rs.10,000/Â. PWÂ2 Pandharinath further deposed that soon after the marriage of his younger brother, he had gone to the house of
accused along with Ashamati, and they had given a table fan to the accused. On that occasion, all the accused persons were asking him about the
balance dowry amount of Rs.10,000/Â. The accused had given threat to end the life of Ashamati, if the balance amount is not paid at the earliest..
PWÂ2 Pandharinath further deposed that on 21st April, 2001 he had gone to Pokharni for offering his prayer to the temple situate at Pokharni. There
he met with Ashamati at Pokharni. Ashamati attempted to talk with him but the accused persons had not allowed Ashamati to talk with her brother
Pandharinath. He further deposed that on 29th April, 2001 a person by name Ananda from village Daithana had come to their village and informed
that Ashamati was missing from the house of accused. Pandharinath himself, his parents, younger brother went to village Daithana and searched for
Ashamati, but she was not found. On 30th April, 2001 one Limbaji Rambhau Lokhande informed that the dead body of Ashamati was found in the
well situate in the land of Eknath Sopanrao Avhad. Immediately they went to the land of Eknath Avhad. They found the dead body of Ashamati in the
well. On the same day, Pandharinath filed F.I.R. in Daithana police station. He further deposed that Ashamati committed suicide only because of the
cruel treatment given by the accused persons, as their demand for balance dowry amount was not fulfilled.
16.During the course of crossÂexamination, PWÂ2 Pandharinath has stated that, the marriage of Ashamati was settled after Ashamati and accused
No.2 had approved each other. After the marriage was settled, Pandharinath and his family members had gone to the house of the accused for ""Tila
ceremony, and after said ceremony, the accused persons came to his house for ""Kunku"" ceremony. After these ceremonies, marriage was performed.
About 8 to 10 days after marriage, for the first time Ashamati came to their house, she stayed with them for about eight days. By that time the
accused persons had not started demanding balance dowry amount. He further stated that they had not filed any complaint even when Ashamati was
informing them repeatedly at the time of her every visit that she was subjected to cruel treatment. He further stated that his family owns about 15
acres land. The accused persons own about 10 acres land. In the land of accused well is not situate.When he had seen the well situate in the land of
Eknath Sopanrao, the water was at a level of about 5 feet from ground level and there were three steps upto the water level. He further stated that,
after going to the house of accused, accused No.4 had informed that during morning hours Ashamati had gone for attending nature's call at about 5.00
a.m. and since then she had not returned back to the house. On the next day Limbaji Rambhau had come to their village and informed that the dead
body of Ashamati was found in the well. He further stated that prior to the incident, at Pokharni village, accused No.2 and Ashamati had offered
Abhishek"" to Lord Narsinha; and they had hosted meals to entire village. The further suggestions put to PWÂ2 Pandharinath, were denied by him.
17.Thus, from careful perusal of the evidence of the informant Pandharinath, it appears that he has not specifically stated the date and time when
alleged illÂtreatment was given to Ashamati by the accused persons. He has made general allegations that for the nonÂpayment of balance amount
of dowry all the accused were subjecting Ashamati to cruel treatment.
18.The prosecution has examined PWÂ3 Balasaheb Wamanrao Punjare. He deposed that deceased was his sister's daughter. She was married with
accused No.2 about two years prior to her death. At the time when the marriage was settled, parents of Ashamati had agreed to pay dowry amount
of Rs.20,000/Â and golden ring weighing 5 grams. About three months soon after marriage, Ashamati had come to her parent's house. When he had
been to the house of parents of Ashamati, she informed him that because of nonpayment of balance dowry amount of Rs.10,000/Â accused were
subjecting her to cruel treatment. PWÂ3 Balasaheb, informant Pandharinath and others had gone to the house of accused along with Ashamati. On
that occasion all the accused insisted for payment of balance dowry amount and on failure, they gave threat of causing death of Ashamati.
19.During the course of crossÂexamination, PWÂ3 Balasaheb stated that his village is at a distance of about 15 Kms. from Parbhani town. Village
Daithana is at a distance of about 22 Kms. from Parbhani town on opposite side. His statement was not recorded by police. He had not stated before
the police that Ashamati had informed him that the accused persons subjected her to cruel treatment on account of balance dowry amount of
Rs.10,000/Â. About 8 to 10 days after Makar Sankrant, he had gone to village Daithana with deceased Ashamati and others. Thereafter, he never
met Ashamati. He does not remember whether the accused persons had come to the house of informant prior to the marriage of Ashamati for
Kunku"" ceremony. He had not gone to the house of accused at the time of ""Tila"" ceremony. As PWÂ3 Balasaheb was not present, he does not
know as to how much amount was given at the time of ""Tila"" ceremony to the accused. PWÂ3 Balasaheb has further denied the suggestion put to
him by the counsel appearing for the accused.
20.Thus, from careful perusal of the evidence of PWÂ3 Balasaheb, it is clear that his statement was not recorded by the police, nor he himself has
stated before the Police that Ashamati had informed him that the accused persons subjected her to cruel treatment on account of nonÂpayment of
balance amount of dowry. For the first time, PWÂ3 Balasaheb has deposed before the Court that accused persons were illÂtreating Ashamati on
account of alleged nonÂpayment of balance dowry amount. PWÂ3 Balasaheb was not present either for ""Kunku"" ceremony or ""Tila"" ceremony and
therefore he had no personal knowledge about exact amount which was agreed to be given as dowry and how much amount of dowry was paid and
how much was remained to be paid. Therefore, in our opinion, the evidence of PWÂ3 Balasaheb is not trustworthy and reliable.
21.The prosecution has examined PWÂ4 Bhaurao Sheserao Shinde. In his examinationÂinÂchief PWÂ4 Bhaurao deposed that Ashamati was
married with accused No.2 about two years prior to her death. At the time of marriage, an amount of Rs.20,000/Â was settled as dowry amount and a
golden ring. Out of the agreed amount, at the time of marriage Rs.10,000/Â were paid and golden ring was given. The remaining amount of
Rs.10,000/Â was agreed to be paid after one year. About three months after marriage Ashamati returned to her parent's house. Ashamati informed
him that the accused persons subjected her to cruel treatment because of nonpayment of balance amount of Rs.10,000/Â. Gangadhar, father of
Ashamati had convinced her. At the time of Panchami festival again Ashamati came to her parent's house. Ashamati stayed at the house her parents
upÂto Makar Sankarant. On that occasion, Ashamati informed that the accused persons had directed her not to return to their house unless and untill
balance dowry amount of Rs.10,000/Â was paid. PWÂ4 Bhaurao further deposed that his land and land of father of Ashamati are adjacent to each
other and so they are having cordial relations. He further deposed that he himself, Dasu, maternal uncle of Ashamati and Pandharinath had gone to
the house of accused along with Ashamati. They tried to convince the accused persons that the balance amount of Rs.10,000/Â shall be paid to them.
However, accused No.4 Gayabai gave threats that if the balance amount of Rs.10,000/Â is not paid, they shall not be in a position to see even the nail
of Ashamati..PWÂ4 Bhaurao further deposed that, subsequently, at the time of marriage of her brother, Ashamati had come to her parent's house.
On that occasion also Ashamati informed that the accused persons were subjecting her to cruel treatment because of nonÂpayment of balance dowry
of Rs.10,000/Â. About fifteen days thereafter he came to know that Ashamati was missing from the house of the accused after she had gone for
attending nature's call. Thereafter he came to know that the dead body of Ashamati was found in a well. He further deposed that he himself, Pandhari
and other villagers went to Daithana. The dead body of Ashamati was found in the well.
22.During the course of crossÂexamination, PWÂ4 Bhaurao has stated that informant or his family members are not his relatives. The house of
informant is away from his house and it is situate in Dhangar Galli. He is the member of village Gram Panchayat. Bhanudas is the Sarpanch and they
belong to same party. Informant Pandhari and his family members are the members of opposition party, still their relations are cordial. He further
stated that police had recorded his statement. He stated that contents of his statement that Gangadhar, father of Ashamati had informed him about the
cruel treatment given to Ashamati by the accused, are correct. He was unable to assign any reason as to why in his statement before the Police it is
not mentioned that Ashamati had informed him about her cruel treatment at the hands of the accused. He does not remember the day or the date of
marriage of Ashamati. He also does not remember the year when marriage was performed. He was present in the meeting when the marriage was
settled, the meeting was held in the house of Gangadhar. But he does not remember the date of meeting. The meeting was held about one month prior
to the marriage. He does not remember the name of maternal uncle of Ashamati. They had been to the house of the accused along with Ashamati
one day prior to Makar Sankrant. He was unable to tell the year when he had been to the house of the accused at the time of Makar Sankrant, but he
had gone about one and half months back. PWÂ4 Bhaurao further denied the suggestions put to him by the counsel appearing for the accused.
23.Thus, it is clear that the prosecution hasbrought on record the contradictions, omissions and improvements in the evidence of PWÂ4 Bhaurao.
Though in his examinationÂinÂchief he has specifically stated that Ashamati had informed him that the accused persons subjected her to cruel
treatment, in his crossÂexamination, he has specifically admitted that it is recorded in his police statement that Gangadhar, father of Ashamati had
informed him about the cruel treatment given to Ashamati by the accused. Thus, it is clear that the evidence of PWÂ4 Bhaurao is hear say,
regarding the alleged illÂtreatment given to Ashamati by the accused persons. PWÂ4 Bhaurao had further admitted that contents in his police
statement were correct. PWÂ4 Bhaurao was unable to tell the day and date of the marriage of Ashamati. He further stated that though he was
present in the meeting when the marriage was settled, however he was unable to state the date of such meeting. Thus, oral testimony of PWÂ4
Bhaurao is not at all inspiring confidence.
24.The prosecution has examined PWÂ5 Prashant Pandurang Sampate, A.P.I., who was the investigating officer in this case. He has deposed about
the manner in which he has carried out the investigation.
25.We have discussed the evidence of all the witnesses, in detail. It is the case of the prosecution that at the time of settlement of the marriage, it was
agreed that father of Ashamati would pay an amount of Rs.20,000/Â as a dowry. It is further the case of the prosecution that out of the said amount
of dowry, only an amount of Rs.10,000/Â was paid at the time of marriage and an amount of Rs.10,000/Â was remained to be paid, and on account of
nonÂpayment of the said amount, the accused had given illÂtreatment to Ashamati. However, the prosecution has failed to prove that due to nonÂ‐
payment of the dowry amount, the accused persons had illÂtreated to Ashamati. In this regard, we have carefully perused the evidence of PWÂ2
Pandharinath who is informant and real brother of the deceased, PWÂ3 Balasaheb, who is the maternal uncle of deceased and PWÂ4 Bhaurao who
is the friend of father of deceased Ashamati. All these three witnesses have made general statements that, due to nonÂpayment of dowry amount all
the accused persons were subjecting Ashamati to cruel treatment. However, these witnesses have not given any details or particulars as to on which
date and at which time such illÂtreatment was given to Ashamati. No specific instances are quoted and only general and vague statements are made.
Further, regarding the illÂtreatment given to Ashamati by the accused persons, the oral testimony of all these prosecution witnesses i.e. PWÂ2
Pandharinath, PWÂ3 Balasaheb and PWÂ4 Bhaurao, is same, similar and stereoÂtype. All these witnesses have stated that, all the accused were
subjecting Ashamati to cruel treatment, and nothing more than that is deposed by these witnesses. Therefore, we are of the considered opinion that
the prosecution has failed to establish that accused persons have committed an offence punishable under Section 498ÂA of the I.P. Code.
26.It is true that in the facts of the present case, death of Ashamati occurred within seven years from the date of marriage. However, upon careful
perusal of the evidence of PWÂ1 Dr. Muna Afreen, the medical officer who has conducted postÂmortem on the dead body of Ashamati, she has, in
clear terms, stated in her crossexamination that she was not sure whether the death of Ashamati was accidental or suicidal. Thus the prosecution has
failed to establish that Ashamati had committed suicide. As against this, it is the defence of the accused that on the day of incident, early in the
morning Ashamati went to the field, to attend nature's call and accidentally she fell in the well. Thus, it appears that the accused have taken a probable
defence. Therefore, the possibility of accidental death of Ashamati cannot be ruled out.
27.As observed earlier, there are various contradictions, omissions and improvements in the oral evidence of PWÂ3 Balasaheb and PWÂ4 Bhaurao.
We have carefully perused the findings recorded by the trial Court. The trial Court, in Para 29 of the Judgment, referred to the contradictions in the
evidence of PWÂ3 and PWÂ4 Bhaurao. Thereafter in Para 30 of the Judgment, the trial Court has observed as under:""In view of these
contradictions appearing in the statements of PW.3 Balasaheb and PW.4 Bhaurao at the most it can be said that these witnesses have improved their
versions to the effect that Ashamati had informed them about her cruel treatment at the hands of accused persons. However, because of these
contradictions in the statements of PW.3 Balasaheb and PW.4 Bhaurao remaining part of their statements can not be disbelieved.
28.The aforeÂsaid findings recorded by the trial Court are perverse. When the trial Court has concluded that there were contradictions and
improvements in the oral testimony of PWÂ3 Balasaheb and PWÂ4 Bhaurao, the trial Court ought to have discarded such untrustworthy and
unreliable evidence.
29.In Para 37 of the Judgment, the trial Court has observed that, there is no convincing evidence to prove beyond reasonable doubt that Ashamati
committed suicide and under such circumstances, benefit of doubt must go to accused. The trial Court has further observed that prosecution has failed
to prove that Ashamati committed suicide. Thus, the trial Court has concluded that Ashamati had not committed suicide. Further, in Para 38 of the
Judgment, the trial Court has observed that, as prosecution has failed to prove beyond reasonable doubt that Ashamati committed suicide,
consequently it cannot be said that accused persons or any of them abetted commission of suicide by Ashamati. The trial Court has further observed
that, even otherwise there is no cogent and reliable evidence to prove abetment by instigation or intentional aiding. It is further observed that, no
cogent and reliable evidence is adduced to show that accused persons or any of them instigated Ashamati to commit suicide or that they intentionally
aided her to commit suicide. Thus, the trial Court has concluded that, the prosecution has failed to prove that accused persons or any one of them
abetted in commission of suicide by Ashamati.
30.We have perused the First Information Report ExhibitÂ24. The informant Pandharinath has specifically stated in the First Information Report that
due to the illÂtreatment given by the accused persons, his sister Ashamati had committed suicide by jumping in the well. However, as observed
earlier, the trial Court has concluded that deceased Ashamati had not committed suicide. The trial Court has further held that the prosecution has
failed to prove that accused persons or any one of them abetted in commission of suicide by Ashamati. However, on the same set of evidence, the
trial Court has held that accused No.2 Â Vaijinath and accused No.4 Â Gayabai have committed the offence punishable under Section 498ÂA and
304ÂB of the I.P. Code. On the same set of evidence, the trial Court has acquitted original accused Nos.1, 3 and 5 from all the offences with which
they were charged.
31.Learned counsel appearing for original accused Nos.2 and 4, has rightly placed reliance upon the exposition of law by the Supreme Court in the
case of Bakshish Ram and another vs. State of Punjab , in Para 13 of the Judgment, held as under:""13. As discussed above, a perusal of Section 113B
of the Evidence Act and Section 304B, I.P.C. shows that there must be material to show that soon before her death the victim was subjected to
cruelty or harassment. In other words, the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview
of the ""death occurring otherwise than in normal circumstances"". The prosecution is obliged to show that soon before the occurrence, there was
cruelty or harassment and only in that case presumption operates. As observed earlier, if the alleged incident of cruelty is remote in time and has
become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. In the case on hand, admittedly,
the prosecution heavily relied on the only evidence of Sibo (PWÂ2)mother of the deceased which, according to us, is a hearsay, in any event, a very
general and vague statement which is not sufficient to attract the above provisions. In such circumstances, as argued by the learned counsel for the
appellants, accidental death cannot be ruled out.
32.In the present case in hand, the prosecution failed to establish that soon before the death of Ashamati, she was subjected to cruelty or harassment
by the accused persons in connection with any demand for dowry. Further, so far as the illÂtreatment is concerned, the prosecution witnesses have
made general and vague statements which are not sufficient to attract the provisions of Section 304ÂB of the I.P. Code.
33.Thus, we are of the considered view that the findings recorded by the trial Court so far as convicting and sentencing accused Nos.2 and 4 for the
offence punishable under Section 498ÂA and 304ÂB read with 34 of the Indian Penal Code are perverse and the same are liable to be quashed and
set aside.
34.So far as the findings recorded by the trial Court thereby acquitting accused No.1 Â Baliram, accused No.3Â Bhagwan and accused No.5 Â‐
Meerabai from all the offences with which they were charged are concerned, the same are in accordance with the evidence brought on record. The
prosecution has failed to establish that accused Nos.1, 3 and 5 have committed any of the offences with which they were charged.
35.For the reasons aforeÂstated we are of the opinion that Criminal Appeal No.50 of 2003 filed by original accused No.2 Â Vaijinath Avhad and
accused No.4 Â Gayabai Avhad, deserves to be allowed.
36.For the reasons aforeÂstated Criminal Appeal No.326 of 2003 filed by the State challenging the acquittal of original accused No.1 Â Baliram
Avhad, accused No.3Â Bhagwan Avhad and accused No.5Â Meerabai Avhad for the offences with which they were charged is liable to be
dismissed. So also Criminal Appeal No.329 of 2003 filed by the State for enhancement of the sentence awarded by the trial Court to original accused
No.2 Â Vaijinath Avhad and accused No.4 Â Gayabai Avhad also deserves to be dismissed.
37.In the light of discussion in foregoing paragraphs, we pass the following order:
O R D E R
(I)Criminal Appeal No.50 of 2003 is allowed.
(II)The impugned Judgment and order dated 7th January, 2003, in Sessions Trial No.121 of 2001, passed by 4th Additional Sessions Judge, Parbhani
thereby convicting and sentencing accused No.2 Â Vaijinath Avhad and accused No.4 Gayabai Avhad for the offence punishable under Section
498ÂA and 304ÂB of the Indian Penal Code, is quashed and set aside.
(III)Appellants in Criminal Appeal No.50 of 2003 i.e. original accused No.2 Â Vaijinath Avhad and accused No.4 Gayabai Avhad are acquitted of the
offence punishable under Sections 498ÂA and 304ÂB of the Indian Penal Code.
(IV)The impugned Judgment and order dated 7th January, 2003 in Sessions Trial No.121 of 2001, passed by 4th Additional Sessions Judge, Parbhani
thereby acquitting original accused No.2 Vaijinath Avhad and accused No.4Â Gayabai Avhad of the offence punishable under Section 306 read with
34 of the Indian Penal Code, is hereby confirmed.
(V)The bail bonds of both the Appellants i.e. Vaijinath Avhad and Gayabai Avhad shall stand cancelled.
(VI)The Appellants  Vaijinath Avhad and Gayabai Avhad shall furnish the Personal Bonds of Rs.15,000/ each and surety of like amount each,
under Section 437ÂA of the Code of Criminal Procedure, before the concerned trial Court at Parbhani.
(VII)The impugned Judgment and order dated 7th January, 2003 in Sessions Trial No.121 of 2001, passed by 4th Additional Sessions Judge, Parbhani,
thereby acquitting original accused No.1 Â Baliram Avhad, accused No.3 Â Bhagwan Avhad and accused No.5Â Meerabai Avhad of the offences
punishable under Sections 498ÂA, 306 and 304ÂB read with 34 of the Indian Penal Code is also confirmed.
(VIII)Criminal Appeal No.326 of 2003 and Criminal Appeal No.329 of 2003 are hereby dismissed.