Partly allowed

Shrishail Bhimsha Ghale and Others v. the State of Maharashtra

Bombay HC27 Aug 2007APEAL/852/1990

Case brief

AI extract

What is this about?

High Court confirmed conviction for dowry death and abetment under IPC 304-B and 201. Principal accused sentenced; other two elderly appellants granted probation.

What did the court decide?

Conviction confirmed. Principal appellant sentenced. Two elderly appellants released on probation for two years.

What the court decided

Shrishail Bhimsha Ghale and Others Vs the State of… — Matrimonial and Divorce | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

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Criminal Appeal No.852 of 1990

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Shrishail Bhimsha Ghale

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Suglabai Bhimsha Ghale

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Bhimsha Malkappa Ghale

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Appellants

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Vs.

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The State of Mahrashtra

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Respondent

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Mr.P.M.Mengane for appellants. Mr.Y.M.Nadhawa, APP for State.

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CORAM : B.H.MARLAPALLE, J.

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Reserved on : July 19, 2007. Pronounced on : August 27, 2007.

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JUDGMENT:

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1.		This	appeal	arises from the order of
conviction		and		sentence passed by the	lea	rned	IInd
Addl.		Session	s	Judge at Solapur on	23/	11/1990	in
Sessions		Case	No.	115 of 1990 and for	th	e	offences
punishable		und	er S	ection 304-B read with	Se	ction	34
of	IPC	and	Section	201 read with Section	34	of	IPC.
On t	he	first	ch	arge the accused no	.1	has	been
sentenced		to	suffer	RI for ten years and	to	pay	a
fine	of	Rs	.500/-	whereas accused nos.2 an	d	3	have
been	se	ntenced	to	suffer RI for seven	years	and	to
pay	a	fine	of	Rs.100/-. For the seco	nd	charge	all
the	acc	used	have	been sentenced to suffer		RI for	one

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year and to pay a fine of Rs.100/-. All the accused have also been convicted for the offence punishable under Section 498-A read with Section 34 of IPC. However, no separate sentence has been awarded in view of the sentences already awarded as above. The substantive sentences have been directed to run concurrently. All the accused are held to be entitled to set off for the period of detention already undergone by each of them, if any. It appears, during the trial the accused were released on bail and they were also granted bail by this Court as per the order dated 5/12/1990. The accused were

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acquitted from the offence under Section 302 read

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with Section 34 of IPC.

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As per the prosecution case Mahadeo Mali,

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resident	of	village		Mule	gaon	ga	ve	his dau	ghter
Shevanta	in	marriage		to	the a	ccused	no.1,	the son	of
the acc	used	nos.2		and	3 and	re	sident	of v	illage
Mandrup	and	the	mar	riage	was	perform	ed on	17/5	/1989
at village	Mandr	up.	He	had	agre	ed to	give	a dowry	of
Rs.4000/-	and	out	of	the	same	he ag	reed to	pay	an
amount	of R	s.3000/-	at	the	time	of	marriage	and	the
remaining	amount	of	Rs.	1000/-	and	cot	and	mattress	be
given	after	marriage		and	accord	ingly	he ha	d paid	the

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amount	of Rs.3000/-. Shevanta	was	renamed	in		her
matrimonia	l home as Surekha.	She	was be	ing		harassed
and	ill-treated on the demand	of	remaining	amo	un	t of
Rs.1000/-	and the other artic	les as	promised			during
marriage.	Within eight days	of	marriage	she		was
brought	back to her parents’	house	and was		i	nformed
by	her mother-in-law that sh	e must	return	with		the
remaining	amount and the ar	ticles a	s promised.			On
3/8/1989	Somling Malleshi Ghale -	PW	10 and	cou	si	n of
the a	ccused no.1 went to	village	Mulega	on		and
informed	Surekha’s mother at	about	12-30 no	on		that
Surekha	died suddenly wh	ile	cooking.		S	urekha’s
parents,	brothers and other	relation	s reache	d		village
Mandrup	between 3 to 4 p.m.	They	saw that	the		dead
body	was kept in the inner	room	which	was		dark.
Around	5 p.m. the dead	body wa	s taken	ou	t	for
cremation	and at the cremati	on gro	und the			relations
of	the deceased objected on	the	ground that	i	n	their
community	(Mali) the dead bo	dies a	re buried	an	d	they
are	not cremated. The resi	dents o	f village			Mandrup
who	were present at the cre	matorium	and the			accused
insisted	that the deceased woul	d be	cremated	and		at
this sta	ge the mother of the	decease	d Sonabai	a	nd	her
aunt	Dhulabai insisted to see	at	least the	face		of
the	deceased but this was	avoided.	Howev	er,		these

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two	ladies went ahead and removed the saree from	the
face of	the deceased and noticed that around the	neck
of the	deceased there were injury marks. The	persons
from	Mandrup village returned from the cre	matorium
and t	he dead body was not cremated. Revansidha	son
of Maha	dev Mali - PW 3 and the brother of	the
deceased	went to Mandrup Police Station and	lodged
the c	omplaint which came to be registered as an	FIR
(Exh.19).	CR No.22/89 came to be registered	by
Damodhar	Gangaram Gaikwad, PSI - PW 11. He went	to
the	cremation ground and held the inquest pan	chanama
(Exh.17).	He was told that it was the dead body	of
Surekha	Ghale. Firewood and seized articles	were
recorded	in the panchanama at Exhibit 10 and on	the
next day	the accused were arrested. PSI Gaikwad	took
over	the investigation, sent the dead body for	post
mortem,	to Dr. V.M.Medical College, Civil	Hospital,
Solapur.	Dr.S.S.Sardar, Lecturer in	Forensic
Medicine	conducted the post-mortem on	4/8/1989
between	8 a.m. to 9 a.m. and filled in the	post
mortem	report at Exhibit 27 certifying the cause	of
death as	"asphyxia as a result of strangulation".	On
completion	of investigation the charge-sheet	was
filed	and charge was framed on committal of the	case
on 2	9/10/1990. All the accused pleaded not	guilty

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and took the defence of alibi i.e they were not

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present in the house when Surekha died on 3/8/1989.

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3.	As p	er the charge fra	med on 29/10/19	90 the
accused	were	charged	for the	o	ffences		punishable
under	Section	498-A	read with	Section	34	of	IPC,
Section	304-B	read with	Section 34	of	IPC	and	in the

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alternate under Section 302 read with Section 34 of

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IPC and Section 201 read with Section 34 of IPC.

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. The prosecution examined eleven witnesses i.e.

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PW 1 - Dr.Shivaji Shah, PW 2 - Kashibai Mhetre, PW 3 - Revansidha Mali, PW 4 - Gangadhar Gaikwad, PW 5 - Dr.S.S. Sardar, PW 6 - Daji Jadhav, PW 7 - Police Constable Machindra Laxman Kurle, PW 8 - Dhulabai Babusha Mali, PW 9 - Subhash Jodmote, PW 10 - Somling

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Ghale and PW 11 - Damodhar Gaikwad. The defence also

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examined one witness i.e. Malsidha Jodmote - DW 1.

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The trial Court in the impugned order of

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conviction	and	sentence	has	held	that	Surekha	@
Shevanta	died	a homicidal	death	but	the	accused	could
not	be held	to have	committe	d the	murder	of	Surekha
on	3/8/1989.	The	learned	counsel	for	the	appellants
submitted	that	the	finding	of the	trial	Court	is

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erroneous and the decea	sed in	fact committed			suicide.
Let it be noted at t	his stage	itself that th	e		accused
had though denied the	charges	framed against	them	,	in
the statement recorded	under Se	ction 313 of			Cr.P.C.
all of them have taken	the def	ence of alibi.	A	t	the
same time through the ev	idence of	PW 10 Som	ling		Ghale
and supported by the	evidence	of PW 3	Re	v	ansidha
Mali, the prosecution	initially	claimed that			Surekha
died while cooking	and thus	a case of	a	c	cidental
death but in the cross	-examination	of PW 3	Re	v	ansihda
Mali and the cross-ex	amination	of PW 9		S	ubhash
Jodmote as well as th	e defence	witness DW 1			alsidha
Jodmote, the prosecuti	on	pleaded that			Surekha
committed suicide as she	was not	happy to hav	e		been
married to the accused	no.1 who	was either bli	nd		by
one eye or he is a	squint eye	d person. It	woul	d	be,
therefore, necessary to	examine	the medical		e	vidence
regarding the cause of	death of	Surekha. Dr.S	hah		-
PW 1 was the Medica	l Officer	who had exami	ned		the
deceased on 3/8/1989.	He sta	ted before the			Court
that he was a practitio	ner at	village Mandrup	for		the
last five years and on	3/8/1989	at about 11 a.	m.		ST
Driver Subhash Jodmote	- PW	9 had come	to		his
dispensary and requested	him to	accompany him	to		see
a patient. Dr.Shah,	therefore,	went to the	hous	e	of

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the accused and f	ound that the patient was	lying
inside the room whic	h was dark and the patient	was
about 19 years old	female by name Surekha.	On
examination he found	that her pulse was not	found
recordable and there	was no respiration and hence	he
declared her dead.	He produced the relevant	case
papers at Exhibit 15	which is the death ce	rtificate
and it stated that	the patient was dead before	the
doctor arrived. In	his cross-examination he	stated
that he had not exa	mined the body of the patient	and
had only seen the	pulse and the heart beat	and,
therefore, could not s	ee any injuries on the body	of
the patient. After PW	3 - Revansidha Mali lodged	the
FIR at Exhibit 19 wit	h the Mandrup Police Station,	PW
11 D.G.Gaikwad, PSI	at Mandrup Police Station	had
visited the crematoriu	m and inquest panchanama	at
Exhibit 17 was held	and the same was proved by	the
evidence of PW 2	Kashibai Mhetre. She stated	that
she had, as a la	dy panch, seen the body of	the
deceased and had	noticed ligature marks in	reddish
colour around the neck.	She had signed the	inquest
panchanama at Exhibit	17 and the contents	therein
were correct. PW	7 Machindra Kurle Police C	onstable
had carried the dead	body of Surekha to the	Civil
Hospital at Solapur f	or post-mortem on 3/8/1989	and

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he stated	that	he carried the dead body in	a	tem	po at
about	8 p.m	. and after the post mortem	on	the	next
day, the	dead	body was handed over to	the	com	plainant
PW	3 for	last rites. PW 5 Dr.Subh	ashchan	dra	Sardar,
who	was	the Lecturer in Forensic Medici	ne	at	Dr.V.M.
Medical	Colle	ge and Civil Hospital at	Sola	pur	had
performed	the	post-mortem of the de	ad	body	of
Surekha.	He	stated that he was attached	to	the	Civil
Hospital	since	1979 and had conducted	abo	ut	5000
autopsies.		The dead body of Surekha was	bro	ught	by
the	Police	Constable of Mandrup Police	Sta	tion	on
3/8/1989	at	about 11.30 p.m. to the	Civil		Hospital
and	he co	nducted the post-mortem on the	said	bod	y on
4/8/1989	between	8 a.m. to 9 a.m. On	exa	minatio	n he
found	the	ligature marks in front of the	nec	k,	well
marked	below	the thyroid cartilage, ma	rked	co	mpletely
encircled	-	the neck, transversely more	pro	minent	on
the front	and	the side than back. He	noti	ced	bruises
immediately	abov	e and below the groove base	.	Bas	e of
the	groove	was dry, hard parchlike skin	abrad	ed.	On
dissection		of ligature marks he noticed		hae	morrhage
in tis	sue,	in and above the area of c	ompres	sed	and
adjacent	musc	le lacerated. There	were	e	xtensive
bruises	of	deep tissues, fracture of	hyoid		cartilage,
fracture	of	cricoid cartilage. He opin	ed	that	these

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injuries were ante mortem. The int	ernal	injuries
noticed by him were consisting of	sub	pleural
haemorrhage, fracture of both larynx	and	trachea,
haemorrhage in mucosa of the larynx	and	marked
congestion. The lungs were showing echym	osis and	had
subpleural haemorrhage. He had also	noticed	dark
colour blood exudate. As per his opinion	the	cause
of death of Surekha was "asphyxia as a	result	of
strangulation". The viscera preserved by	him	was
also sent to the Chemical Analyser	but	no
recognizable poison was detected on	analysis	as
revealed from Chemical Analyser’s report	at	Exhibit
26. In his cross-examination he	admitted	that
strangulation can also be suicidal.	However,	he
ruled out the possibility of suicidal ha	nging in	the
case of Surekha and denied such	a su	ggestion
categorically. He also admitted that in	order	to
cause hanging by suicide the ligature mark	s are	found
oblique and he stated that the ligature	marks in	the
present case were found transverse and	encircled	the
neck and transverse indicates horizontal.	He	also
made it clear that dry blood was present	near	mouth
and nostrils and opined that in the case	of h	omicidal
strangulation saliva is found absent. examination-in-chief he also admitted	In that	his the

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ligature marks on the dead body of Surekha noticed by him could be possible in case of use of rope (Article no.18) for strangulation and the strangulation in question must be homicidal and it must have been done by more than one person. Some suggestions were put to him in support of the theory of suicidal death and

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he stoutly rejected the possibility of suicidal death of Surekha.

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5.	It	is also	pertinent to note	that when Dr	.
Shah	visited	the	house of	the accu	sed	at	11 a.m.	on
the	date	of	the inci	dent, Surek	ha	was	not	seen
hanging	on	some	rope and	in fact	as	per	Dr.Shah	the
patient	was l	ying	in the i	nner room	.	He	was	informed
by	PW 9	and	as told to	him by	accu	sed	no.2 that	the
patient	was	un	conscious a	nd had	sudd	enly	taken	ill.
Accused	no.2		was presen	t when	Dr.Sha	h	visited	her
house	and	at	no point	of time	any	of	the	accused
reported	to	the	police	station	a	t	Mandrup	that
Surekha	com	mitted	suicide	by han	ging.		The	medical
evidence	of	Dr.	Sardar -	PW 5	unerri	ngly	proved	that
Surekha	died	a	homicidal	death and	as	per	him	the

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ligature marks noticed around her neck could be

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possible by a rope like article no.18.

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The learned Judge of the trial Court has

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acquitted th	e	accus	ed fro	m	the	alternate	charge
punishable	under	Se	ction 302	read	with	Section 34	of
IPC solely	on	the	ground	that	the r	ecovery of	article
18 made at	the	ins	tance of	the	accused	no.1 could	not
be conne	cted	to	the stran	gulation	of	Surekha and	the
chain of	c	ircums	tantial evi	dence	was	broken on	the
ground that	the	prese	nce of	any	of t	he accused	before
11 a.m.	on	the	date of	the	incident	could not	be
proved by	the		prosecution		and,	therefore,	the
prosecution	failed	to	prove	that	the ac	cused or	any
one of	them		had murde	red	Surekha	. Unfort	unately

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there is no appeal against this acquittal filed by

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the State before this Court.

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6.	Be th	at as it may, the	trial Cou	rt has upheld
the	prosecution	case	and	convicted	the accused	for
the	offence	punishable	under	Section	304-B read	with
Section	34	of IPC.	In	order to	convict an	accused

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for an offence punishable under Section 304-B of IPC,

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the following essentials must be satisfied,

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(a) the death of a woman must have been caused

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by burns or bodily injury or otherwise than

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under normal circumstances;

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(b) such death must have occurred within 7 years of her marriage;

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(c) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; and

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(d) such cruelty or harassment must be for or

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in connection with demand of dowry.

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It is only when the aforementioned ingredients

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are	established by	acc	e	ptable e	vidence	such		death
shall	be called "dowry	dea	th	" and	such h	usband	or	his
relative	shall be	deeme	d	to h	ave caused	her		death.
In	the case of	an		offence	punishable	under		Section
304-B	of IPC an	exc	ep	tion is	made by	a		deeming
provision	as to nat	ure	of	death	as "do	wry	death"	and
that	the husband or	his	r	elative,	as the	case	may	be,
is	deemed to ha	ve ca	us	ed such	death, ev	en	in	the
absence	of evidence	to		prove th	ese aspects		but	on
proving	the existence	of		the	ingredients	of	the	said
offence	by convincing	evid	en	ce.	Under Se	ction	4	of
the	Evidence Act w	heneve	r	it is	directed	by	the	said
Act	that the Court	shall		presume	the fa	ct, i	t	shall

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record	such	fact as proved unless and until i	t is
disproved.	Th	e Court has no option but to	presume
the	accused	have caused dowry death unless	the
accused	disprov	ed it. It is a statutory c	ompulsion
on	the Court.	However, it is open to the acc	used to
adduce	such	evidence for disproving such c	ompulsory
presumptio	n as	the burden is unmistakably on him	to
do	so and	he can discharge that burden either	by
eliciting	answ	ers through cross-examination of	the
witnesses	of	the prosecution or by adducing	evidence
on the	defence	side or by both. Section 113-B	of the
Evidence	Act	is also relevant while examining	the
charge	under Se	ction 304-B of IPC as the said	Section
deals	with the	presumption as to the dowry death.	It
would	be,	therefore, necessary to examine for	the
Court	whether	the accused have committed the	dowry
death	of	Surekha. The conjoint reading of	Section
113-B	of t	he Evidence Act and Section 304-B of	IPC
shows	that th	ere must be material to show that	soon
before	her	death the victim was subjected to	cruelty
or	harassment.	The prosecution has to rule out	the
possibility	of	natural or accidental death so as	to
bring	it w	ithin the purview of death	"occurring
otherwise	than	in normal circumstances".	The
expression	"soon	before" is very relevant	where

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Section	113-B of the	Evidence	Act	and	Se	ction	304-B
of IPC	are pressed	into s	ervice.		The	prosecuti	on is
obliged to	show that	soon	before	the	o	ccurrence	there
was crue	lty or harassme	nt and	only	in	that	case	the
presumption	operates.	The	evidence		in	that	regard
has to be	led by the	prosecu	tion.	"S	oon	before"	is a
relative t	erm and	it	would	dep	end	upon	the
circumstances	of each	case	and		no	st	rait-jacket
formula	can be laid	down	as to	w	hat	would	constitute
a period	of "soon befo	re occ	urrence"	as	has	been	well
settled.	The expression	"soon	before		her	death"	used
in Section	304-B of	IPC	and Secti	on	113-B	of	the

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Evidence Act is present with the idea of proximity test.

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Let us, therefore, examine the prosecution case of dowry death on the basis of the evidence of PW 3 Revansidha, PW 6 Daji Jadhav and PW 8 Dhulabai. PW 3 in his examination-in-chief before the trial Court stated that the deceased Surekha was married to the accused no.1 on 17/5/1989 and the said marriage was arranged on settled payment of dowry at Rs.4000/out of which an amount of Rs.3000/along with some utensils was paid during the marriage and the remaining amount of Rs.1000/along with a bed was

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agreed	to be given to the accus	ed within	two	months
of	the marriage i.e. du	ring the	festiv	al of
Nagpancha	mi. The marriage was	performed	at	village
Mandrup	and he is the resident	of villag	e	Mulegaon.
As per	him after marriage the	deceased w	ent to	reside
with	her husband at Mandrup and	PW 8	had ac	companied
her.	She came back to village	Mulegaon on	19th	May
1989	along with PW 8. The	brother of	accused	no.1
had	thereafter come to Mulegaon	to take	Surekha	to
Mandrup	and she had gone along	with him.	She	stayed
there	for few days and was aga	in dropped	back	by her
brother-in-l	aw after 8-10 days. A	s per PW	3,	the
brother-in-l	aw told that the bal	ance amoun	t of	dowry
and	cot and bed as agreed was	required to	be	sent
when	Surekha would return to	the matrim	onial	home.
Surekha	also told the complain	ant that	her	in-laws
and	husband were insisting for	giving	the	balance
amount	and other articles. They	were abu	sing h	er and
expressing	displeasure against her	for	not	fulfilling
the	promise. Surekha stayed	at Mulegaon	for	one
month	and thereafter complainant	and	his	cousin
Chandu	Mali took her to village	Mandrup.	He	stated
that	he had requested the ac	cused not	to	ill-treat
Surekha	and he would fulfil thei	r demand	of	remaining
amount	and the articles within	a short s	pan of	time.

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He	went	back to his village and	eight days t	hereafter
two	persons	from Mandrup came to	his village and	told
his	mother	that Surekha was dead.	He had	returned
from	Solapur	at about 2 p.m. and	his mother told	him
about	the	death of Surekha.	All the	relations
reached	Man	drup at about 4 p.m.	on the date	of
incident	and	found that dead body	of Surekha was	kept
in	the	inner room, which was dark	. The persons	from
village	Ma	ndrup did not allow his	party to go	near
the	dead	body and the dead body	was given bath	after
sometim	e.	They had asked to bring	the dead body	in
the	front	room but the accused	persons did not	agree
for	the	same. At about 6 p.m.	the dead body	was
taken	to	cremation ground where	he noticed	that
arrangem	ent	was made for cremation	and he and	his
party	object	ed for the same. At	that stage	his
mother	So	nabai and aunt Dhulabai	told the	accused
persons	th	at they should be shown	at least the	face
of	the	deceased Surekha and,	therefore, they	removed
the	saree	from her face. They	noticed ligature	marks
on	the	neck and shouted that they	were deceived.	He
also	saw	the face of Surekha and	noticed the	ligature
marks	on	neck. The accused pers	ons and the	villagers
from	Mandrup	left the cremation groun	d and he we	nt to
the	polic	e station and lodged the	complaint. In	the

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cross-examination he denied	tha	t Surekh	a had not	seen
accused no.1 before her	m	arriage.	He pointed	out
that the engagement had	take	n place	during the	Diwali
festival and there was a	g	ap of m	ore than six	months
till the marriage was per	forme	d. H	e also pointed	out
that accused no.1 had visit	ed	his house	on one or	two
occasions before the	marria	ge to	ok place	on
17/5/1989. He denied	that	the accus	ed no.1 was	a
blind person. However,	he	admitted	that he was	a
squint eyed person.	He	denied	the suggestion	that
there was no agreement	to	pay Rs.4	000/- as dowry	and
other articles and that	Rs.3	000/- wer	e to be pa	id at
the time of marriage and	th	e balance	was to be	paid
within two months. He	de	nied the	suggestion that	the
performance of marriage	was	delayed	because	Surekha
was not ready to marry	the	accused	no.1. He	admitted
that Subhash Jodmote,	Mal	sidha Jodm	ote of	village
Mandrup were present for	ma	rriage an	d also denied	the
suggestion that he asked	Sur	ekha to	marry the	accused
no.1 otherwise they wou	ld	be defam	ed in the	society.
The defence in its	cross-	examination	tried to	point
out contradictions / impro	veme	nts in	his testimony	as
compared to the FIR	at	Exhibit	19 and	more
particularly regarding hi	s	request to	the	accused
persons not to ill-treat	the	deceased	on account	of

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dowry	and	tha	t	he wo	uld	arrange	to pay the		balance
amount	wit	hin sh	ort	time		and	that Sur	ekha	was
ill-treated		and		harassed	on	acco	unt of the		balance
amount	of	dowry.		Though	th	ese	statements do	not	find
place	in	the	FIR	at	Exhibit	19,	however it	was	not
put	to	the I.O.		PW	11	durin	g his cr	oss-exam	ination
by	the	defence.		The	FIR	was	filed immed	iately	he
left	the	cremator	ium	on	the	date	of incident	and	his

¶84

mental framework at that point of time must be kept

¶85

in mind while scanning the FIR.

¶86

.	PW	6 Daji is a neighbour of PW 3 and he	was
one	of the	persons who was also	present	when	the
marriage	of	Surekha was fixed with	accused	no.1	by
negotiations	at	village Mandrup. H	e stated	in	his
depositions	that	he had gone to vi	llage Man	drup	along
with	Tamma	Mali, Sidhu Mali, Appa	Mali,	Re	vansidha
Mali	as well	as the father and	mother	of	the
deceased.	He	had gone to the hou	se of th	e	accused
persons	and	the marriage was settled	on pay	ment	of
Rs.4000/-	dowry	, cot, bed, clothes,	utensils.		He
also	stated	that before settlement	of	the	said
marriage	the a	ccused persons had also	come	to	village
Mulegaon	to	see Shevanta @ Surekha.	One	month	after
the	settlement	of marriage accused	no.1	and	his

¶87

¶88

friend had	had c visited	ome to Mule the house	gaon to of the	see Shevanta and complainant at	he that
time.	All	of them had	taken	lunch together and	they
left	Mandrup	at about 4	p.m. H	e had attended	the
marriage	ceremony	of Shevanta	and	accused no.1 and	he
stated	that	at the time	of mar	riage, the father	of
Shevanta	told	accused no.3	that he	had brought	only
Rs.3000/-	and	would give	the	balance amount	of
Rs.1000/-	afterw	ards along	with	cot and	bed.
Rs.3000/-	were	paid to	accused	no.3. He	further
stated	that	after the	marriage	ceremony S	hevanta
stayed	in the	house of	the accused	along with PW	8
Dhulabai	for	two days	and she	returned to	village
Mandrup.	10	-12 days	thereafter	brother-in-law	of
Shevanta	had	brought She	vanta to	village Mulegaon	in
the	month of	Ashadh	and that	time she	started
complainin	g that	she w	as being	ill-treated for	non
fulfilment	of	balance amou	nt and	articles. The	same
was tol	d to him	by PW 3	Revansidha.	After a mon	th or
so	Revansidha	and his	cousin Cha	ndu Mali had	taken
Shevanta	to	the house o	f accused	no.1 and told	the
accused	persons	that the	balance	amount of dowry	and
articles	would	be given	within one	or two	months.
This further	was discl stated	osed to him that on th	by Revan e date	sidha PW 3. of the incident	He when

¶89

¶90

the messenger from village Mandrup cam	e to	village
Mulegaon to give the news of Shevanta	’s demise,	they
were told that Shevanta became faint	suddenly	and
while cooking she died before the doc	tor reached	the
house. The testimony of PW 8 on the p	oint of	dowry
demand and ill-treatment to Surekha	suffers	from
improvisations / contradictions and,	therefore,	it
would not be safe to rely upon the sam	e. H	owever,
the testimony of PW 3 Revansidha and	PW 6	Daji
clearly established the prosecution case	that	just
about 8-10 days before the death of	Shevanta	@
Surekha there was a demand of dowry	that is	the
balance amount of Rs.1000/- and other	articles	made
by the accused persons and she was bein	g harassed	and
ill-treated on that count. Revansidha	had	assured
the accused persons that the said demand	will be	met
during the festival of Nagpanchami. The	marriage	had
taken place on 17/5/1989, the deceased	had r	eturned
to her parental home on 19/5/1989 and	within	8-10
days therefrom she was taken back to	village M	andrup
by her brother-in-law. She stayed in	the matr	imonial
home for more than a week and was brough	t back by	her
brother-in-law to village Muleg	aon.	The
brother-in-law had also conveyed the	demand	of
remaining amount and articles to the bro	ther of	the

¶91

¶92

deceased when	he drop	ped	the	deceased back	to
Mulegaon.	Within a	span o	f abou	t 2 and 1/2	months
from marriage	Surekha	met	hom	icidal death.	The
demand of	dowry and	the	ill-treat	ment on account	of
the same	was proved	to be	soon	before her death	as
per the	prosecution	evidence	.	The accused	through
the evidence	of PW	9	and	more particularly	his
cross-examination	by the	defe	nce	after he	was
declared hosti	le by	the	prosecu	tor, tried to	put
forth the	defence that	Shev	anta	was unhappy with	the
marriage, sh	e did not	like	the	accused no.1 and	that
she committed	suicide.	Through	the	evidence of D	W 1,
the defence	tried to	demolish	the	prosecution case	of
dowry demand	and this	witne	ss ha	s been found to	be
unreliable by	the tria	l	Court.	Similarly	the
cross-examination	of PW 9	as	cond	ucted by the	defence
counsel was	also fou	nd to	be	suffering from	the
contradictions as	is clear	from	the	depositions of	PW
11, the I.O	. Having	regards	to	the evidence of	PW 3
and PW	6 the pros	ecution	unerri	ngly proved the	dowry
death of	Surekha and	the	defen	ce failed to d	ischarge
its burden	against	the	presump	tion under	Section
113-B of	the Evidenc	e Act,	in	this regard.	The
findings of	the trial	Court	on	the offence pu	nishable

¶93

under Section 304-B read with Section 34 of IPC are,

¶94

¶95

therefore, required to be upheld.

¶96

Now coming to the offence punishable under

¶97

Section 498-A of IPC, it has two parts defining the

¶98

terms "cruelty" as follows:

¶99

	(a)	any	wilful	condu	ct	which	is	of suc	h a
nature	as	is	likely	to	dr	ive the		woman	to
commit	s	uicide	or to	ca	use	grave		injury	or
danger	to	life,	limb	or		health	(	whether	mental
or	physi	cal)	of	the		wom	an;		or

¶100

(b) harassment of the woman where such

¶101

harassment is with a view to coercing her or

¶102

any person related to her to meet any unlawful

¶103

demand for any property or valuable security

¶104

or is on account of failure by her or any

¶105

person related to her to meet such demand.

¶106

On sifting the evidence of PW 3 and PW 6, it

¶107

is	clear	that	claus	e (a) o	f	Section	498	-A of	IPC is
not	attrac	ted	in	the inst	ant	case	but	surely	clause
(b)	of	the	said	Section	do	es stan	d	established.	It
would	be	eno	ugh	if such	ha	rassment	is	with a	view to
coercing	the		marrie	d wom	an	by in-l	aws	or	by the

¶108

¶109

husband	or their	relations	to	mee	t	any	unlawful
demand	for any	property or	valu	able	sec	urity and	it
is not	necessary	that as a	co	nseque	nce	of the	said
harassment,	she s	hould be d	riven	to	c	ommit	suicide.
There is	enough	evidence bro	ught	on	reco	rd by	the
prosecution	through	the testimony	of	PW	3	and PW	6
that the	deceased	was haras	sed	for	the	demand	of
remaining	dowry	amount of	Rs.1	000/-		and the	articles
like cot	and bed	etc. while	she	wa	s	staying in	the
company	of the	accused after	the	marri	age.	She	was
ill-treated	by	giving abuses	an	d		expressing	their
displeasure	on ac	count of	non	fu	lfilm	ent of	the
promise	of do	wry and this	ill-	treatme	nt	was by	all
the accus	ed.	Hence the	trial	C	ourt	has	rightly

¶110

convicted the accused for the offence punishable

¶111

under Section 498-A read with Section 34 of IPC.

¶112

11.	The tr	ial Court	has held all th	e accus	ed
guilty of		screening	the		evidence re	garding	the
homicidal	death	of	Surekha.	The	evidence of	PW	3
Revansidha,	PW	6	Daji and	PW	8 Dhulabai	clearly	went
to show t	hat	the d	ead body	of	Surekha was	kept	inside
the dark	room	and	around 5	p.m.	it was	brought	out
and given		bath by	the accu	sed	party. None	of	the
relations	of	the	complainant	wer	e allowed	to see	the

¶113

¶114

dead body	till it	reached crematori	um.	At	the
crematorium	the co	mplainant party	opp	osed	the
cremation on	the gro	und that in their	com	munity	the
married woma	n’s body	is buried and	no	t	cremated.
When the	accused	party were insisting	to	crema	te the
dead body	of Surekh	a, the mother of	the	deceas	ed and
PW 8 Dhu	labai remov	ed the saree from	the	face	of the
deceased an	d noticed	ligature marks aro	und	her	neck
and they	shouted sa	ying that they we	re d	eceived.	It
has also com	e in the	evidence of PW 3,	PW 6	and	PW 8
as well as	DW 1,	PW 9 and PW 10	that	the	accused
party and	the village	rs of Mandrup wh	o we	re	present
at the	crematorium	left the crematoriu	m	after	the
dead body	was seen	by the complainant	party	and	the
complainant	proceeded	to file his c	omplaint	wit	h the
Mandrup pol	ice station.	It has come	in	the	evidence
of PW 10	Somling	Ghale that he	was	sent	as a
messenger	to village	Mulegaon to in	form	that	Surekha
had expired	suddenly	while cooking.		In	their
statements record	ed under	Section 313 of	Cr.	P.C.	the
accused no.1	stated t	hat on the day	of t	he	incident
he had go	ne to	Solapur to dist	ribute	milk	and
returned between	4 to	4.30 p.m. Ac	cused	no.2	claimed
that she had	taken the	cows for grazing	and	one	woman
residing in	her	lane told that h	er	daug	hter-in-law

¶115

¶116

had	fallen	down in the house. This woman	m	es	senger
has	not	been examined before the trial Court	by		the
defence.		The accused no.3 stated that on	the da	y	of
the	incident	he had left his home and gone	to		do
labour	wor	k and on his way back he learnt	about		the
death	of	his daughter-in-law. When the ple	a of		alibi
was	taken	it was necessary for them to prove	the		same
and t	he acc	used failed to do so. When Dr.Shah	-	P	W 1
visited	the	house of the accused at about 11	a.m.		on
the	date	of the incident, he was never	informed		that
the	patient	was unconscious but on checking	the		pulse
Dr.		Shah realised that the patient was	already		dead
before	he	reached the house of the accus	ed.		The
evidence		placed on record by the prosecutio	n		proved
the	char	ge punishable under Section 201 ag	ainst		the
accused	col	lectively beyond any doubt and	, t	he	refore,
the	order	of conviction for the offence	pu	n	ishable

¶117

under Section 201 read with Section 34 of IPC calls

¶118

for no interference in this appeal.

¶119

12.		On	the point of senten	ce, the learned	couns	el
for	the		appellant	submitted	that	the	o	ffen	ce	had
taken		place	about 18	years b	ack	and	the	acc	used	have
been	on	bail	all along.	The	accu	sed	no.3	is	close	to
80	years		whereas t	he accused	no.2	is	close		to	70

¶120

¶121

years.	Accu	sed no.1 h	as subsequently married and	his
children	to	support. If	he is taken in custody	now
his	family	members will	be thrown on the streets	and
that	in any	case he is	blind by one eye. As per	the
learned	counsel	it would	be too harsh for the a	ccused
to	undergo	sentence at	this stage and, therefore,	he
prayed	that	all the	accused should be given	the
protection	of	Section 4	of the Probation of Off	enders
Act,	if th	is Court co	nfirms the order of con	viction
impugned	in	the appeal	. In the case of State	of
Karnataka	v.	M.V.	Manjunathegowda and anr.	[AIR
2003	SC 809]	the question	of quantum of punishment	in
the	case	of "dowry	death" fell for consid	eration

¶122

before the Apex Court and Their Lordships observed in

¶123

para 23 as under:

¶124

¶125

which the punishment is, imprisonment for a
terms which shall not be less than seven years
but which may extend to imprisonment for life.
As would reveal from the various amendments as
noticed above, despite stringent law, the evil
practice of giving and taking of dowry remains
unabated. On the contrary, it is menacingly
on the increase. ... ... ... The practice
of giving and demanding dowry is a social evil
giving deleterious effect on the entire
civilized society and has to be condemned by
the strong hands of judiciary. Despite
various amendments providing deterrent
punishment with a view to curb the increasing
menace of dowry deaths, the evil practice of
dowry remains unabated. The Court cannot be
oblivion to the intendment of the legislature
and the purpose for which the enactment of the
law and amendment has been effected. Every
Court must be sensitized to the enactment of
the law and the purpose for which it is made
by the legislature. Keeping in view the evil
practice of giving and taking dowry, which is
having a deleterious effect on the civilized
society, it must be given a meaningful

¶126

¶127

interpretation so as to advance the cause of interest of the society as a whole. No leniency is warranted to the perpetrator of the crime against the society...."

¶128

. It has come in the evidence of PW 5 Dr. Sardar that the strangulation on account of which Surekha died must be by more than one persons. None of the accused went to the police station which was located in their own village Mandrup to file a complaint that Surekha died an accidental death or she committed suicide. Even after PW 1 Dr.Shah declared Surekha dead, accused no.2 or neither of the accused have taken any steps to file a complaint with Mandrup Police Station and on the contrary every attempt was made to screen the evidence regarding the homicidal death of Surekha. At the first instance the complainant’s party was communicated that Surekha died suddenly and while cooking. When they reached the house of the accused between 2 to 3 p.m. on the date of the incident, they were not allowed to see the deceased and it was only at the place of crematorium that her mother and aunt opened her covered face and noticed the ligature marks. If the accused party had agreed to bury the dead body, there

¶129

¶130

was	every p	ossibility that	the	cri	me could have	gone
unnoticed	and	the accused	would	go	scot free.	These
are	the ag	gravating	circumst	ances	as against	the
mitigating	circu	mstances poi	nted	out	by the	learned
counsel	for the	accused.	On	acco	unt of this	appeal
having	been p	ending for	more	than	17 years, once	the
order	of conv	iction has	be	en	confirmed for	the
offence	punishable	under	Sec	tion	304-B read	with
Section	34 of	IPC, the	period	of	sentence cannot	be
reduced	below	seven years	by	the	trial Court or	the
Appellate	Court	but th	e sent	ence	period for	the
offence	punishable	under	Sectio	n	201 read	with

¶131

Section 34 of IPC can be reduced having regards to

¶132

the advanced age of accused nos.2 and 3.

¶133

ground to extend to him the benefit of Section 4 of

¶134

the Probation of Offenders Act, 1958.

¶135

. At the same time the case of accused nos.2 and

¶136

¶137

advanced	age o	f both	of	them. In		my co	nsidered
opinion	they d	eserve	to	be given	the	benefit	of
Section	4 of th	e Proba	tion	of Offenders	Ac	t, 1958	and
rather	than	sending	them	to suffer	the	sentence	at
once,	it would	be ex	pedien	t to release	both	of	them
on	probation of	good	cond	uct. The	bar	under	Section
4	of the Pr	obation	of	Offenders Act	does	not	operate
in th	eir case.	At	the	same time it	would	not	be
expedient	to	call for	a	report from	t	he P	robation
Officer	concerned	in	respe	ct of these	t	wo	accused
having	regards	to their	ad	vanced age	and	that	there
is	nothing on	record	to	show that	they	were	involved
in	some ot	her case	or	they are	habitua	l o	ffenders.
However,	they	could	be	directed to	report	to	the
Probation	Officer	concern	ed,	once in a	mo	nth so	that

¶138

he has the supervision over the behaviour of these

¶139

two accused.

¶140

In the premises, the order of conviction and

¶141

sentence	passed	b	y	the		learne	d I	Ind	Additional
Sessions	Judge	at	So	lapur	in	Sessio	ns Ca	se	No.115 of
1990	for the		offen	ces	punish	able	under	Sec	tion 304-B
read	with Sect	ion	34,	Sec	tion	201	read	with	Section
34	and Section	498	-A	read	with	Sectio	n 34	of	IPC is
hereby	confirmed	aga	inst	the	a	ccused	no.1		- Shrishail

¶142

¶143

Bhimsha Ghale. The substantive sentences to run concurrently. He shall be entitled to set off for the period of sentence already undergone by him, if

¶144

any. He shall surrender forthwith to undergo the

¶145

sentence.

¶146

The order of conviction passed in Sessions

¶147

. Case	No.11	5 of	1990 for the	offences	punisha	ble	under
Section		304-B	read with Section	34,	Section	201	read
with	Se	ction	34 and Section 49	8-A read	with		Section
34	of	IPC	is hereby confirmed	against	accused		nos.2
and	3.		However, instead of	sentenci	ng accu	sed	nos.2
and	3,	they	are hereby directed	to be	relea	sed	on
probation		under	Section 4 of	the	Probatio	n	of
Offenders		Act,	1958 and they	shall	be	kept	on
probation		for	a period of tw	o years	during		which
period	each	one	of them shall	report	to the	P	robation
Officer	o	f	their District i.e.	Solapur	once	in	a
month		and	if the Probation	Officer	notices	or	learns
anything		advers	e against their be	haviour	or any		one
of th	em,	then	at the first insta	nce he	shall	adv	ise /
warn	them	and	thereafter shall re	port the	same	to	the

¶148

learned Principal District and Sessions Judge at

¶149

Solapur.

¶150

¶151

. The appeal is partly allowed in the above

¶152

terms.

Shrishail Bhimsha Ghale and Others v. the State of Maharashtra

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Shrishail Bhimsha Ghale and Others v. the State of Maharashtra

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