Allowed

Suman Shivaji Nimbalkar v. the State of Maharashtra

Bombay HC19 Jul 2012APEAL/238/1994

Case brief

AI extract

What is this about?

In this appeal, the High Court of Bombay Criminal Appeal Jurisdiction reviewed a conviction for offences under Sections 498A and 306 IPC. The court found the prosecution evidence regarding dowry demand and cruelty asihist by the appellant`. naive`, leading to the victim’s suicide, insufficient due to lack of corroboration and verwoher eye-witness testimony.

What did the court decide?

Conviction and sentences under Sections 498A and 306 IPC of IPC were set aside; appellant acquitted.

Suman Shivaji Nimbalkar Vs the State of Maharashtra — Dowry and Cruelty | Bombay HC (2012)

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APEAL-OJ-238 OF 1994

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vks

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 238 OF 1994.

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Smt. Suman Shivaji Nimbalkar, age: 39 years, Occn. Housewife, residing at Gardi, Taluka: Khanapur, District: Sangli .. Appellant. Ori. Accused V/s. The State of Maharashtra .. Respondent

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Mr. Kedar Patil i/b Mr. Sachin Shetye, for the Applicant

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Mrs. S. V. Sonawane, Additional Public Prosecutor, for the Respondent – State.

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CORAM : R.C.CHAVAN, J. DATE : 19th July, 2012

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Oral Judgment

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This appeal is directed against appellant's emotional conviction for offence punishable under Section 498A and 306 read with section 109 of the Indian Penal Code and sentence of rigorous imprisonment for 3 years with fine of .1,000/- or in default rigorous imprisonment for six months, rigorous imprisonment for two years with fine of .1,000/- or in default rigorous imprisonment of six months, imposed respectively on

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APEAL-OJ-238 OF 1994

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the two counts, on conclusion of Sessions Case No.98 of 1991, by the learned Additional Sessions Judge, Sangli.

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Facts which are material for deciding this appeal are

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as under:-

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The victim had married the appellant's son, against the advise of her parents. It was a love marriage which took place somewhere in March, 1989. For about two months, couple stayed at Taluka place at Vita. In May, 1989, they returned back to their village Gardi. The houses of the appellant and the victim's parents are just adjacent. Till Diwali of 1989, the victim was residing with her in laws. For Diwali she seems to have gone to her parent's house. It is alleged that there was some demand because no presents were given in the marriage and, therefore, the victim had to reside at her parental house till about April, 1990. The demand seems to have been fulfilled by payment of `.5,000/-. Thereafter the the victim was residing with the appellant and other in laws. On 7^th November, 1998, the victim had gone with her husband to gynecologist to verify conception who found that there was no conception. On 11^th November, 1990 victim had possibly committed suicide by jumping in well. She had drowned. A report about the incident was given on 11^th November, 1990, whereupon an offence was registered. Investigation commenced. Inquest had already

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been performed on the body of the victim and it had been sent for postmortem examination. Police performed panchnama of spot, recorded statements of witnesses and on completion of investigation, sent the chargesheet to the Court of learned Judicial Magistrate First Class, Vita, who committed the case to the Court of Sessions at Sangli.

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The learned Additional Sessions Judge to whom the case was made over, charged the appellant of offence punishable under Sections 498A, 304B and 306 read with section 109 of the Indian Penal Code. Since appellant pleaded not guilty, she was put on trial at which the prosecution examined in all 10 witnesses in its attempt to bring home guilt of the appellant. After considering the prosecution evidence in the light of defence of denial, the learned Judge acquitted the appellant of offence punishable under Section 304B of the Indian Penal Code, but convicted her for offences punishable under Sections 498A and 306 of the Indian Penal Code and sentenced her as indicated earlier. Aggrieved, thereby the appellant is before this Court.

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I have heard learned counsel for the appellant and learned Additional Public Prosecutor (for short called as, “APP”) for the State. With the help of both I have gone through the

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APEAL-OJ-238 OF 1994

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evidence on record. There is no dispute about inquest panchnama, seizure of clothes of victim and certificate of cause of death. The notes of postmortem show that the victim died due to drowning.

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P. W. 1 Satish Patil is a panch at the spot panchnama at Exh.10. Victim's father P. W. 2 Rajaram stated about the incidents leading to death of victim and also proved his report at Exh.12. He stated about the victim's marriage to the appellant's son Suresh in 1989. Suresh and victim were studying in the same school and had developed affinity for each other. He stated his wife informed him about love affair between Suresh and the victim and though he claims to have advised lovers to refrain, they did not. The lovers married in a temple possibly without the parents being present. They stayed at Vita a taluka place. On the advise of parents of Suresh, they shifted to Gardi. He stated that the victim was brought for the festival of Deewali, when the victim informed him that the appellant made demand of `.10,000/- since nothing was given at the time of marriage. The victim reiterated that the appellant had threatened that unless the victim brings the amount, victim would not be allowed to cohabit with the appellant's son at village Gardi. Therefore, the victim stayed with her mother for about 6 months after Deewali. P. W. 2 Rajaram claimed that he had approached

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APEAL-OJ-238 OF 1994

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one Shivaji Babar. As per advise of Shivaji Babar, he claimed to have paid .5,000/- to Shivaji Babar, who handed over that amount to victim's husband. Thereafter the victim returned to her matrimonial home and she was treated with love and affection for about 2 to 3 month, but harassment again continued because of non payment of balance of .5,000/-. He then stated about the incidents leading to finding of dead body of the victim in a well and about his giving report. He stated that his house and the house of appellant is separated only by a road between. He stated that his father-in-law and the father-inlaw of the appellant were cousins and therefore, the marriage between victim and the appellant's son was found inappropriate. He admitted that his wife and brother were opposing the marriage as also that it was the parents of the sonin-law who brought the victim and Suresh to reside again at village Gardi. He stated that the demand was not conveyed by the victim to him personally. He admitted that after the victim returned to her matrimonial home after Deewali, she did not come back to their house, but stated that she used to come to their house once in a day since houses were close.

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P. W. 7 Shivaji Babar is the person to whom Rajaram claims to have paid sum of `.5,000/-. Shivaji Babar turned hostile and did not support the story about he is having been

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APEAL-OJ-238 OF 1994

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instrumental in passing on sum of `.5,000/- to the appellant from Rajaram. He admitted that the appellant's husband is his driver. P. W. 3 Vidya Dekane, is the victim's cousin who began by saying that the victim was her friend. The fact that victim was her cousin was disclosed by her only in the cross examination. Her evidence corroborates substantially that of P. W. 2 Rajaram. She also stated that the victim had gone to doctor at Vita, who opined that the victim had not conceived. She stated that the victim's husband had taken the victim to hospital at Vita about 4 days prior to the incident which corresponds with the evidence of P. W. 4 Dr. Sunanda Patil. Dr. Patil stated that the victim was anxious to know whether she was conceived, but the doctor found that the victim was not pregnant.

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P. W. 5 Muktabai is the appellant's sister-in-law, who is on cross terms with the appellant. She stated about the unlawful demand of `.10,000/- and also harassment to the victim. But in the cross examination admitted that she had no personal knowledge as to what happened in the house of accused since she used to go for her work in the morning and come back in the evening. She had a grievance about the unequal partition in which she was given dry land, whereas husband of appellant got an orchard. She admitted that her brother had quarrel with the appellant's husband on account of

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APEAL-OJ-238 OF 1994

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unequal distribution.

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P. W. 6 Rukmini is the victim's aunt who states that the appellant is her mother-in-law by relation. She admitted that she was not on visiting terms with the appellant due to quarrel between the families. She admitted that she had not cared to see as to what was happening in the appellant's house. Thus, the evidence of P. W. 5 Muktabai and P. W. 6 Rukmini is absolutely of no use to connect the appellant to crime.

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P. W. 8 Sitabai is the victim's mother. She stated that the victim had told her about the demand of .10,000/when she had been brought for the festival of Deewali. She stated that sum of .5,000/- was paid to the accused through Shivaji Babar and thereafter the victim was treated well for about two months and the illtreatment started thereafter. She stated that the accused was abusing the victim and assaulting her and therefore, she had sent her younger son to enquire with Surekha as to what had happened. This is curious that since the houses of the families are just adjacent to each other. Younger son who was sent to enquire with Surekha, has not been examined at the trial. She admitted in her cross examination that since about 4 to 5 years, prior to the marriage of victim, her relations with the appellant were not cordial. She admitted

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that the victim was determined to marry Suresh inspite of her advice to the contrary. She admitted that she had not attended the marriage. She also admitted that during the first three months of the marriage, she did not visit Surekha. She admitted that she had not gone to call the victim or her husband for the festival of Deewali. She stated that she did not tell her daughter that her daughter could stay with her in case she was subjected to any severe cruelty. She admitted that even after her younger son told her about illtreatment, she did not visit the appellant's house to enquire about her daughter's well being.

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P. W. 9 S. D. P. O. Pradip Raskar and P. W. 10 PSI Sonawane conducted investigation in parts.

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Learned counsel for the appellant submitted first that there was a doubt about the victim having met with accidental death and there was nothing to show that she had committed suicide. He submitted that the story about unlawful demand of `.5,000/- surfaced only after the death of the victim and it should have been rejected by the learned trial Judge in view of refusal of independent witness P. W. 7 to support this story. He pointed out that there was no independent witness to state about any illtreatment of the victim at the hands of the

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appellant. According to learned counsel for the appellant, the possibility of the victim having felt lonely because lack of support from her parents, particularly from her mother, and dejected on doctor's opinion that she had not conceived, was not considered by the learned trial Judge. He submitted that even if it is presumed for a while the victim did commit suicide that could be on account of doctor's telling her that she had not conceived and failure on the part of her parents to give emotional support to her. In any case, learned counsel for the appellant submits that the victim was residing with the appellant for at least six months even after return from parental house and no incident of any sort was reported, though the houses of parties were nearby. Non examination of Yogesh, the younger son of P. W. 8 Sitabai, according to learned counsel for the appellant should have persuaded the learned trial Judge to reject the evidence of illtreatment.

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The learned APP on the other hand submitted that the evidence about illtreatment coming from the prosecution witnesses is consistent. That the victim met with unnatural death within two years of her marriage and that the victim had to stay with her parents for a period of six months after Deewali, of 1989 are a pointer to the fact that there was some unlawful demand which was not fulfilled and therefore, victim must have

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APEAL-OJ-238 OF 1994

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committed suicide only on account of harassment. The learned APP therefore, supported the judgment rendered.

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I have carefully considered the rival contentions. First it cannot be ignored that the victim's parents P. W. 2 Rajaram and P. W. 8 Sitabai did not approve of the victim's marriage with Suresh the appellant's son. They admit that the victim and her husband were brought to Gardi from Vita by parents of Suresh. P. W. 8 Sitabai admits that she had not called her daughter or son-in-law for the festival of Deewali. It is nobody's case that the victim had been driven out of her house for not fulfilling the unlawful demands. She had come to her parents house customarily for the festival of Deewali. Her stay with her parents for period of six months is suspicious because so called independent evidence of appellant's relations P. Ws. 5 Muktabai and P. W. 6 Rukmini, has to be rejected because of their hostility towards appellant and P. W. 3 Vidya, though victim's cousin, tried to hide that relation and posed as if she was victim's friend. Victim's mother's hostility due to marriage against her wishes is obvious and Yogesh victim's brother, who could have been the best witness on the point is not examined.

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Considering the nature of evidence tendered, there is doubt as to whether the victim in fact stayed with her parents

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for about 6 months particularly in the face of the victim's mother stating about her not visiting victim and not ascertaining from the victim as to what was happening. In any case since victim returned to matrimonial home in April, 1990 stayed till November, 1990, there is no evidence of any continued illtreatment. Yogesh who would have been the best witness has not been examined.

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Evidence of P. W. 4 Dr. Sunanda Patil shows that just four days prior to the incident she had examined the victim, who had gone to P. W. 4's Clinic with her husband and found that the victim had not conceived. This could be a trigger for the victim to take precipitate step. Therefore, it cannot be said that the appellant was guilty of any cruelty as defined under Section 498A of the Indian Penal Code. Except for generally stating that the victim was harassed, there is absolutely no word as to what type of harassment the victim was subjected to by the appellant. The prosecution had to show that some willful conduct on the part of the appellant which provoked the victim to commit suicide, not only in order to prove offence under Section 306 of the Indian Penal Code, but also offence under Section 498A of the Indian Penal Code, since otherwise there is absolutely no evidence about any unlawful demand of any dowry or cruelty which would be stated to have caused grave

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injury or danger to victim's life.

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In view of this the conviction of the appellant by the learned Additional Sessions Judge, can not be sustained. The appeal is allowed. The conviction of the appellant for offence punishable under Section 498A and 306 of the Indian Penal Code and sentences of rigorous imprisonment for 3 years with fine of .1,000/- or in default rigorous imprisonment for six months & rigorous imprisonment for two years with fine of .1,000/- or in default rigorous imprisonment of six months, respectively on the two counts, imposed are set aside and the appellant is acquitted of those offences.

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Suman Shivaji Nimbalkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Suman Shivaji Nimbalkar v. the State of Maharashtra

Case brief

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What did the court decide?

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