State of Maharashtra and Others vs Rupchand and Others

B.P. Dharmadhikari, J—Both these appeals are against the judgment delivered by the 2nd ad hoc Additional Sessions Judge, Wardha on 28.10.2002 in Sessions Trial No. 44/2002, acquitting all 5 accused of the offences punishable under Section 302 read with Section 149 of Indian Penal Code, and punishing accused no.1 -husband -Rupchand Chopade for an offence punishable under Section 498A of Indian Penal Code and sentencing him to suffer R.I. for three years and to pay fine of Rs. 500/- or in default to undergo further imprisonment for four months. There were total 5 accused named in the crime, and accused no.1 Rupchand is husband of deceased Chandrama Chopade. Accused no.3 is his brother and accused no.4 is wife of accused no.3. Accused no.2 is father of Rupchand and accused no.5 is his mother.

Criminal Appeal No. 88/2003 is preferred by the appellant -State Government under Section 378(3) of the Criminal Procedure Code challenging the acquittal of accused from respective offences, while Appeal No. 624/2002 is preferred by husband - Rupchand challenging his conviction under Section 498-A of Indian Penal Code. Both the matters are heard together.

Briefly stating the case of prosecution is as under -

All the accused, in furtherance of their common intention subjected Chandrama to mental cruelty by willful conduct of such nature as likely to compel a woman to commit suicide and harassed her mentally and physically for illegal demand of money with a view to coerce her, thereby committed an offence punishable under Section 498-A read with Section 149 of the Indian Penal Code. On 15.11.2001 at Mouza Nagazari at about 14.30 hours, Rupchand committed murder of Chandrama by throttling her, while the other accused instigated him for it, intentionally or knowingly thereby committed an offence punishable under Section 302 read with Section 149 of the Indian Penal Code.

Marriage of Chandrama with Rupachand was performed on 07.06.2001. It was a registered marriage. Prosecution stated that after marriage Chandrama started resiting with her husband at Kondali and she was serving at Primary Health Center, Karanja, while her husband Rupchand was working as a teacher at Masod. He was not being paid salary therefor. Rupchand was raising demand of money from accused and was ill-treating her with the aid and help of other accused persons. On 13.11.2001, Chandrama had gone to Nagazari for Diwali and she died unnatural death on 15.11.2001. She was admitted to Primary Health Centre at Kondali and Medical Officer there informed that death to Kondali Police Station. A.D. was then registered under Section 174 of Criminal Procedure Code. After post mortem, the Doctor opined that the death was due to asphyxia on account of constriction over neck. P.S.I. Sukhdeo of Police Station Kondali initially carried out investigation. As the incident had occurred within the jurisdiction of Police Station Karanja, papers were forwarded there and P.S.I. Bhoyar, carried out further investigation.

Ms. N.P. Mehta, learned A.P.P. appearing on behalf of the State Government points out that 10 witnesses were examined by the prosecution to bring home the charge. According to her, evidence of P.W.5 -Sundrabai, P.W.6 -Govindrao and P.W.7-Bhimrao is cogent and convincing, as such the learned Trial Court could not have ignored that evidence. She has further pointed out that death took place, when the deceased was with the accused persons and the trial Court has accepted ill-treatment by her husband. The husband and family members therefore, needed to be punished not only under Section 498-A, but, also for an offence punishable under Section 302 of Indian Penal Code. She points out that the husband was not being paid salary and therefore, deceased wife was required to shoulder his entire expenditure.

Spot where body was found is within the house of the accused persons. Not only this, but the death is within short time after marriage and medical evidence shows throttling. Apart from this, there are eye witnesses. She therefore, submits that accused no.1 Rupchand needed to be punished for offence punishable under Section 302 of Indian Penal Code also, while the remaining accused persons ought to have been punished for offence under Section 302, as also Section 498-A of Indian Penal Code.

Shri M.B. Naidu, learned Counsel appearing on behalf of the accused persons, submits that after due appreciation of evidence on record all accused persons have been acquitted of the offence punishable under Section 302 of Indian Penal Code, and the said finding is neither erroneous nor perverse. Similarly only because of evidence of P.W.6 -Govindrao, who happens to be the maternal uncle of the deceased Chandrama, husband Rupchand has been held guilty under Section 498-A of Indian Penal Code. The inconsistencies or omissions in evidence of said Govindrao and his unnatural conduct has been lost sight of in the process by the learned trial Court. He contends that P.W.5 -Sundarabai had a desire to marry her own daughter with Rupchand, and was frustrated as instead of her daughter, Rupachand married her niece Chandrama. He further submits that on a previous day Chandrama had a fall and was unwell. Sundarabai has given vague version, which is inconsistent and false. Police report lodged by her has not been produced by the prosecution and her statement under Section 161 of Criminal Procedure Code has been recorded almost after 24 days. Evidence of P.W.7 - Bhimrao is also assailed on same grounds. Shri Naidu, learned counsel argues that if Chandrama was like her sister, fact that he never visited her residence earlier cannot be digested. He contends that narration of Bhimrao militates with the story of Sundarabai.

Evidence of P.W.6-Govindrao also suffers from serious lacunae and on the basis of such evidence, offence under Section 498A of Indian Penal Code could not have been held to be proved. Evidence of P.W.1 - Subhadrabai (mother of deceased Chandrama) on harassment or demand of money is unsatisfactory. He has placed reliance upon judgments reported at (1) 2006 All M.R. (Cri) 975 (Pandurang Sadashiv Pimpalkar vrs. State of Maharashtra), (2) Pundalik Vishwanath Kale Vs. State of Maharashtra(2015) ALLMR(Cri) 852 , and (3) State of Maharashtra Vs. Ramesh Ambadas Joshi and Others(2015) ALLMR(Cri) 1856 : (2015) 2 BomCR(Cri) 126 , to buttress his submissions. He contends that scope of interference in such appeal against acquittal is very narrow and the appeal filed by the appellant- State Government is, therefore, liable to be dismissed. According to him the appeal of husband Rupchand deserves to be allowed.

There is no doubt about the date of marriage or date of death of Chandrama. Fact that death was unnatural is also sufficiently established on record. The charge framed against the accused persons at Exh.22 on 14.06.2002 is under Section 498-A and Section 149 of Indian Penal Code as also under Section 302 and Section 149 of Indian Penal Code. There is no other charge. Though in appeal memo the appellant State Government mentions Section 106 of Evidence Act, during arguments, it was not pressed into service.

In so far as the incident dated 15.11.2001 is concerned, there are two eye witnesses. One is P.W.5 -Sundarabai wife of Ramchandra Lade and other is P.W.7 -Bhimrao Bhaurao Chande.

Sundarabai during her cross examination in paragraph no.6 admits that there was loud shout that Chandrama had died and "small boys" came to her house. Her sister-in-law Leelabai rushed towards the house of the accused persons, but, in the next breath she has stated that "we did not go". She further stated that she met Chandrama''s mother Subhadrabai in the hospital and she did not tell anything about the incident to Subhadrabai at that time. At the end of paragraph no.5 in her cross examination, she accepts that what ever she has disclosed in the court on that day was never stated by her to the police. She accepted that she was deposing all the facts for the first time in the court. She also accepted that for the first time she was speaking about beating of Chandrama and that she herself (Sundarabai) was threatened. The prosecution has relied upon her evidence as an eye witness. This cross examination shows that she did not witnessed anything. Her sister-in-law Leelabai appears to be the first person who may have reached the house of accused persons after cries that Chandrama died. Said Leelabai has not been examined by the prosecution. Statement under Section 161 given by Sundarabai is recorded 24 days after the incidence.

The deposition given by Sundarabai in court shows that she had gone to the house of Chandrama at about 12 O''clock to invite her husband for diwali. Chandrama was at that time cleaning utensils in the court yard. Her husband Rupchand asked Sundarabai thrice to leave his house and he did not send Chandrama with her, therefore, Sundarabai returned back. She narrated the incidence to Bhimrao Charde, who is like brother of Chandrama. He therefore, asked Chandrama to accompany him to bring Chandrama. Accordingly she went to the house of Chandrama again. At that time one plank of the door of the house was open, while other was closed. She saw Rupchand throttling neck of Chandrama by means of hand on the cot. Her mother-in-law was holding hands of Chandrama, while accused Baby was thrusting cotton swab in the mouth of Chandrama. Baby was uttering that Chandrama had not died and she should be strangulated firmly. Sundarabai raised alarm. Accused Rupchand then gave dash to Sundarabai and ran away. Sundarabai came to the house, informed Suresh. She also informed this to his son Hukum and then again went to the house of Chandrama. She found Chandrama left in quilt. Hukum and Suresh brought a jeep. Accused Baldev asked them to send it back. Thereafter, Chandrama was taken to the hospital. It is important to note here that there is no accused by name Baldev in the matter. There is no material on record to show that some other accused was also known as Baldev.

In her cross examination, she accepted that house of accused persons is in square and there are two temples at that square. Those temples are visible from the house of Rupchand and about 50 persons sit in those temples. Her house is away from house of Rupchand. Her son who works in the shop of a Chemist at Wardha had come to Nagazari for three days for Diwali. She further accepts that Chandrama arrived at village on preceding day. She was not feeling well and hence, Rupchand has called her and her son Hukum. She accepted that Chandrama had fallen down due to giddiness and she had become unconscious. Sundarabai volunteered that Chandrama became unconscious due to beating. She denied that Hukum provided any medicine. She accepted that there are 50 to 60 houses in the village and one Sahebrao Ramchandra was police patil. She did not approach the police patil and did not inform about the incident to him. She did not send her son or nephew to police patil or to police station, Karajna. She was not aware whether police came to her village in the same night or on next day. Police had been to her. She accepted that she did not go to police on her own. She volunteered that she was threatened by the accused. She stated that she had gone to police station Karanja to lodge a report 8 to 10 days after the incident. Police scribed her report on the incident as per her say and they obtained her thumb impression. She was not called at Karanja thereafter. She denied that police recorded her statement 24 days after the incidence. She accepted that police did not interrogate her at Karanja. She accepted that she had cordial relations with Chandrama and her mother. She also accepted that house of accused persons consisted of two rooms and there was open shed in front of their house. Thus, her evidence, in the backdrop of cross stated supra, apparently shows that she is not an eye witness at all, and her version about throttling, therefore, cannot be accepted. Her conduct about not going to police patil or in not reporting the crime to the police station, not informing events to mother of Chandrama, all show that belatedly she has attempted to help the relatives of Chandrama. If accused persons did not want Chandrama to visit Sundarabai, they would not have called Sundarabai and her son Hukum on the previous day when Chandrama had become unconscious and fallen down.

Bhimrao is another eye witness, as per prosecution. According to Sundarabai, Bhimrao asked her to accompany him again to the house of Chandrama. Bhimrao deposed that on 15.11.2001, he had gone to Nagazari to bring Chandrama. As house of Sundarabai was first on way, he went to Sundarabai. Sundarabai informed him that Rupchand was not ready to send Chandrama. Sundarabai expressed that they should again request Rupchand and hence, he along with Sundarabai went to the house of accused. When he reached there, one plank of door of the house was open and other plank was closed. Volume of television was high. He heard voice of Baby that Chandrama had not died and she should be forcefully strangulated. Hence, he saw inside the house. He saw Rupchand strangulating neck of Chandrama. Accused Baby had thrusted cotton ball in her mouth. Accused Manjulabai was holding her hands and accused Baldev was sitting on legs of Chandrama. Again as already mentioned above, there is no accused person by name Baldev in the matter. On seeing them, Rupchand fled away by pushing his Aunt i.e. Sundarabai. They made hue and cry by coming outside. People gathered there. P.W.8 Suresh Ladke brought a jeep and in that jeep they brought Chandrama to Kondhali Public Health Centre. When they were carrying Chandrama in jeep, accused -Baldev threatened them not to tell about the incident. He deposed that the incident had occurred between 3 to 3.30 p.m.

Thus, this person mentions that T.V. was being played with high volume and Baldev was sitting on legs of Chandrama. He does not say that Rupchand fled away after they made hue and cry. This is not deposed by Sunderabai. His cross examination reveals that accused Baldev had accompanied them in the jeep. He further stated that he did not inform the Doctor about the incident on his own. He did not accept that the Medical Officer after examining Chandrama provided some medicine to Chandrama. He accepted that Doctor called police at hospital. He did not tell police anything at that time. He did not inform mother of Chandrama or anybody else about the incident. He accepted that considering his relations with Chandrama and gravity of the incident, he should have lodged report. He also accepted that he did not inform the incident to anybody for about 24 days. He had not decided not to tell about it to anybody. Karanja Police did not come to Kondali in his presence. He (Bhimrao) was taken to Karanja Police Station for recording his statement by brother-in-law of deceased Chandrama. He states that his name was not disclosed as witness to said brother-in-law by anybody. He accepted that even after 24 days, he was not voluntarily ready to go to police. He accepted that he had seen the house of the accused only once i.e. on the date of incidence and had not seen it before. He also accepted the geographical description of the house, its boundaries and presence of 25-50 persons in the temple. He accepted that he did not inform police that as house of his Aunt falls on the way, firstly he went to her house. He did not tell to police that he had been to the shed of the house of the accused. He could not assign any reason as to why these facts were not mentioned in his statement.

In paragraph no.7 of the cross examination, Bhimrao has accepted that he did not make any hue and cry. He did not immediately rush inside the house after seeing the incident. He touched body of Chandrama to find out whether she was alive. He stated that he did not tell the police that after making hue and cry, people gathered there and they left the house of accused persons. He deposed that the portion marked "A" on this line was not correct. He stated that he may have stated the fact wrongly, and therefore, police may have recorded it wrongly. He accepted that he did not inform the police that accused Baldev had threatened him. He denied that he had not gone to village of Chandrama on that day.

Thus both these witnesses who claim to be eye witnesses and close to Chandrama do not disclose incidence to anybody for over 24 days. Admission given by Sundarabai in her cross examination mentioned at the beginning, reveals that she did not witness the incidence at all and fabricated the story. If her admission in cross examination is correct, deposition of Bhimrao also cannot be accepted. Leelabai who reached the spot first i.e. prior to Sundarabai and Bhimrao, has not been examined by the prosecution.

The prosecution has produced two spot panchnamas on record. First panchnama is at Exh.38. It is titled as "Panchnama of spot of occurrence" dated 15.11.2001. It is prepared at Camp P.H.C. Kondali. It mentions that spot of occurrence is situated in primary health centre, Kondali. Immediately little later is it mentioned that inquest panchnama of deceased was prepared separately. At Exh.44 there is another panchnama of spot of occurrence which is dated 16.11.2001. One Harishchandra Panduji Lade and P.W.6 Govind Dhore are witness to it. This spot panchnama mentions that Chandrama had committed suicide by consuming poison. Spot was shown by the nephew of deceased namely Chhatrapal Vishwasrao Chopde aged about 18 years, who appears to be son of accused nos. 3 and 4. It mentions spot of occurrence as house and it contains description of house. It mentions that one country made cot was found standing and a mattress and quilt used for sleeping, were kept on trestle. Mattress and pillow on the cot which were spread on the cot were not in proper order. It is recorded that on making enquiry in this respect and after inspection of the articles kept in front verandah, no suspicious articles or chit etc. was found and no article to be used as evidence was also found.

In short, the spot where death occurred or location of cot or the door as per abovementioned two eyewitnesses, cannot be ascertained on the strength of this spot inspection.

Subhadrabai, who is mother of the deceased or P.W.6 Govindrao, who happens to be her maternal uncle have not witnessed the incident at all, and as such their evidence is not useful for the purpose of finding out commission of offence under Section 302 of Indian Penal Code.

On the strength of the above evidence it cannot be said that any of the accused persons throttled or killed Chandrama in their house at Nagazari. P.W.8 Suresh Lade has deposed that on 15.11.2001 he was sitting outside when his Aunt Sundarabai came there making alarm. She informed that Chandrama was killed by strangulation. He rushed to the house of Chandrama and went to bring jeep. Along with his aunt, Bhima, Hukum, Sundarabai and Baldev he brought the deceased to Kondali. He has accepted that brother in law of deceased Chandrama came from Pulgaon on 9th December and took him to police station. He did not inform police about the facts till 9th December. He also did not tell police that he had brought the deceased Chandrama in jeep or that Sundarabai had come making alarm.

This evidence therefore, shows that there is no scope to take recourse to even Section 106 of Indian Evidence Act in the matter. Judgment of trial Court acquitting all accused persons for offence punishable under Section 302 of Indian Penal Code, therefore, cannot be faulted with. Apparently, husband of Chandramma was not in house when her body was found. Leelabai, the first person who may have reached the house of accused persons after cries that Chandrama died, has not been examined by the prosecution. So the identity of persons present in the house or of Baldeo is uncertain.

In so far as the offence under Section 498A of Indian Penal Code is concerned, there are only two witnesses. First one is P.W.1 -Subhadrabai, who is mother of deceased. P.W.1 has deposed that Rupchand and her daughter were residing with her (P.W.1) at Kondali after marriage. They used to go to house of other accused persons at Nagazari. Accused no.1 was working as teacher at Masod and her daughter was clerk in Primary Health Centre Karanja. All accused persons were demanding money from her daughter frequently and Rupchand was also raising doubts about chastity of her wife. Quarrel used to take place and Rupchand used to beat her. At the time of Diwali, Rupchand had asked Chandrama to make preparations for going to Nagazari. After preparations were made, accused no.1 abruptly asked her to go alone, as he wanted to go to Nagpur. Subhadrabai asked her daughter to go by evening bus, but, she went in the afternoon. On the next day, accused no.1 had come to her house at Kondali at about 12 to 1 p.m. and after taking tea, he left for Nagazari. On the next day she learnt that her daughter was beaten and admitted at Kondali Primary Health Centre. In cross examination, she accepted that earlier Chandrama was engaged to one Vijay Dhone, who was serving at Karanja and invitation cards were also prepared and clothes were purchased. Vijay was residing near her earlier house at Karanja. She accepted that she did settle engagement of Chandramma with Vijay and cancelled on her own. She denied that engagement was with Chandrama''s approval. She denied that due to cancellation of engagement Chandrama was remaining gloomy. She denied that Vijay had threatened her with action. She accepted that accused no.1 Rupchand had gone to Nagpur on 13.11.2001. She accepted that police recorded her statement on 2/3 occasions. She denied that as she wanted husband of Chandrama to reside with her at Kondali, she cancelled Chandrama''s engagement with Vijay. She accepted that Rupchand was doing his job without any remuneration and Chandrama was helping him financially. She further stated that she had informed police that after marriage her daughter went to Nagazari to reside with accused no.1 and that they were visiting Nagazari on holidays. She had informed police that accused no.1 had asked Chandrama to prepare for going to Nagazari on Diwali occasion, and then abruptly asked her to go alone as he wanted to go to Nagpur. She also disclosed to police that she had asked Chandrama to go to Nagazari by evening bus, but, she alone went by afternoon bus. She could not explain as to why all these facts do not figure in her police statement and she accepted that her daughter Chandrama has given amount to accused no.1 as he wanted to give donation to the school. She denied that there were no demand and there was no ill-treatment or then,

Thus, her evidence does not speak of any particular instance or demand, on the contrary it shows that accused no.1 Rupchand was dependent on services of deceased Chandrama.

Perusal of evidence of Govindrao Dhore (P.W.6) shows that he is younger brother of P.W.1. He during visit found that Rupchand and Chandrama were staying at the house of his sister Subhadrabai. He deposed that Chandramma'' informed him that Rupchand was raising doubts about her chastity and at times beat her. She also informed him that Rupchand was expressing that he had performed marriage for money. He tried to convince her that situation would undergo change. On 18.10.2001 Rupchand and Chandrama came to him at Wardha regarding her transfer. He states that even at that time Chandrama reiterated the same grievance. At that time Rupchand was present. She also informed him that Rupchand had threatened to kill her. After about two days, they left for the village. He then speaks about the message received by him at about 9.30 in the night of 15.11.2001 about events are Nagazari. His cross examination shows that he is teacher and has put in about 18 years service. His relations with his sister are cordial. After reaching Kondali, he had made enquiry about the incident, but, nobody informed him and no police report was lodged. On next day at 12 O''clock, he went to Nagazari with Harishchandra Ladke and met police at about 12.30 p.m. He did not inform police that he was maternal uncle of the deceased or about the incident. He accepted that Harishchandra Ladke happens to be uncle of deceased Chandrama and resides at village Nagazari. He also accepted that he did not inform the police about ill-treatment to Chandrama by Rupchand. He, in next sentence, stated that when he had gone to police station with sister Subhadrabai, after last rites, he informed them that Chandrama was suffering ill-treatment. Police did not record his statement. At that time he did not ask police to take his statement. He contacted police on 17.11.2001 at Kondali. He informed police that he learnt from Chandrama that Rupchand married with her for money and about Chandrama reiterating the same on 18.10.2001. He also informed police about threat given to Chandrama by Rupchand. He could not explain why all these facts were not mentioned in his police statement. Thus, conduct of this teacher witness and omissions in his police statement raise serious doubt about his credibility. Trial Court has in paragraph no.20 of its judgment, rightly refused to accept evidence of P.W.1 Subhadrabai on ill-treatment by accused nos. 2 and 3. However, in next paragraph it is recorded that Subhadrabai''s evidence on ill-treatment at the hands of accused no.1 Rupchand who was raising doubts about her chastity was not shattered in cross examination. It is further found that this evidence was corroborated by P.W.6 -Govinda. Conduct of Chandrama in reposing confidence in her maternal uncle is found to be just, natural and probable. Trial Court has found that thus, there was clinching evidence against Rupchand. It found that the fact that Rupchand was not getting any salary and Chandrama gave money to Rupchand for paying donation to the school, were events indicating demand of money by Rupchand from Chandrama. The previous engagement with Vijay and its cancellation is also looked into in paragraph no.22 to conclude that Rupchand must be using it to blackmail his wife. It is in this light that the learned trial Court has convicted the accused no.1 Rupchand for offence under Section 498-A of Indian Penal Code.

We therefore, find substance in the submission of Shri Naidu, learned Counsel for the accused that material omissions in evidence of maternal uncle Govind have been lost sight of by the Trial Court. Rupchand was residing with his wife at her maternal place i.e. in the house of his mother-in-law. Though he had employment, he was not being paid any salary. Chandrama was earning member and helping him financially. She also gave him money for paying donation to the school, perhaps to secure proper employment. These facts do not establish any quarrel or discord between the couple. Subhadrabai has not given any specific instance about any such quarrel or beating. Govindrao has not disclosed why the couple came to him for transfer and what was the occasion for seeking such transfer. There is no investigation into all these facts. Neighbours who could have thrown light on the ill-treatment or quarrel or beating are also not examined. Therefore, thet conviction of accused no.1 Rupchand under Section 498-A of Indian Penal Code is legally unsustainable.

At this juncture, it will be appropriate to briefly mention the medical evidence on record. Dr. Manish Shirigirwar has been examined as P.W.3 and he found four antemortem injuries. He found one internal injury and according to him cause of death was asphyxia due to constriction over neck. All 4 external injuries are on neck. His cross examination also does not throw any light on the case of prosecution and does not help it to establish that Rupchand throttled her. This Doctor has stated that in case of strangulation by means of hands, finger marks and nail marks are possible over the neck of the victim. He also accepted that he did not find any nail marks over neck of the deceased. He also accepted that hyoid bone and thyroid cartilage are delicate or weak type of bones and can get fractured if pressure is applied by means of hand. He also expressed that they may be left intact. He accepted that if throttling is caused by fingers, then finger marks are seen on both the sides of wind pipe and are easily identifiable. His PM report does not mention finding of any such finger marks. This medical evidence, therefore, militates with evidence of two eyewitnesses who saw Rupchand throttle Chandramma with his hands.

In this situation, taking over all view of the matter, we find that no case warranting interference in Criminal Appeal No. 88/2003, filed by the appellant State Government is made out. The same is accordingly dismissed.

Criminal Appeal No. 624/2002, filed by the appellant/ accused no.1 - Rupchand is allowed. His conviction and sentence for offence punishable under Section 498-A of Indian Penal Code vide judgment and order dated 28.10.2002 in Sessions Trial No. 44/2002 by the 2nd ad hoc Additional Sessions Judge, Wardha is quashed and set aside, and he is acquitted of the said charge.

Bail bonds furnished by him and other accused persons are hereby cancelled.