LAWS(SC)-2004-2-17

ASHOK VISHNU DAVARE Vs. STATE OF MAHARASHTRA

Decided On February 10, 2004
ASHOK VISHNU DAVARE Appellant
V/S
STATE OF MAHARASHTRA Respondents

JUDGEMENT

(1.) Being aggrieved by the judgment of the High court of Judicature at Bombay, the appellant has preferred this appeal. By the said judgment said High Court confirmed the conviction and sentence imposed on the appellant by the Court of sessions Judge at Nasik for offences punishable under sections 498a and 306 IPC. Brief facts necessary for the disposal of this appeal are as follows : the appellant herein was married to one Jayashree about 10-11 years before the death which took place on 8.5.1998. The cause of the death was suicide by consuming pesticides. It is the prosecution case that about 15 days before the death of said jayashree she had visited her parents who were staying in village chitegaon which was a neighbours village to the one in which the appellant and Jayashree were staying with their family namely village Konambe. During the abovesaid visit to her parents, it is stated she told her brothers that she was sent by her husband to bring a sum of Rs. 5,000. It was also the case of the prosecution that she did express that her husband was mal-treating her and physically abusing her for brining said money. On such request being made by the deceased, it is stated that they will make arrangements for sending the said money. Shortly thereafter jayashree returned to her husband leaving behind one of her sons whom she had taken along with her. On 7.5.1988 it is stated Vilas pw-6 who is the son of one of the brothers of the deceased visited village Konambe along with the son of the appellant by name Kiran whom the deceased had left behind in her parent's house but he did not bring the promised amount. It is stated that PW-6 stayed overnight at Konambe, though not in the house of the appellant, but visited the appellant's house, which is a farm-house situated in the lands belonging to the family of the appellant, on 8.5.1988 in the morning when this witness saw appellant quarreling with the deceased and even beating her. It is stated that PW-6 then returned to his village Chitegaon and informed PW-2 Ranganath one of the brothers of the deceased about what he had seen in the house of the appellant. The prosecution further alleges that at about 2 p. m. on that day some villagers of Konambe came and told pw-2 that his sister had died. On hearing this news PW-2 and another brother of his along with some villagers went to Konambe and saw the dead body lying on a cot in front of the farm-house. Suspecting some foul play it is stated that PW-2 went to Police station Sinnar and lodged a complaint of unnatural death of his sister, pursuant to which a case was registered and after investigation the appellant and his father by name Vishnu Anand davare were charged for offences punishable under section s 498a and 306 read with 34 IPC before the learned Sessions Judge, Nasik and after trial the said court came to the conclusion that the prosecution while failing to establish its case against A-2 the father of the appellant herein, has established its case against the appellant, therefore, punished him for an offence punishable under section 306 IPC and sentenced him to undergo RI for 2 years and further to pay a fine of Rs. 250. It further convicted the appellant for an offence punishable under Section 498a IPC and sentenced him to undergo RI for one year and to pay a fine of Rs. 250. The substantive sentences were directed to run concurrently.

(2.) As stated above, an appeal filed against the said conviction and sentences in the High Court of Bombay came to be dismissed.

(3.) Mr. Gaurav Agarwal, learned counsel appearing for the appellant contended that though prosecution had examined about eight witnesses and exhibited certain documents, it has failed to establish that the appellant either abetted the suicide of jayashree or had in any manner subjected her to cruelty. The prosecution evidence in this regard, according to learned counsel, has failed to establish the required ingredients of sections 306 and 498a. Learned counsel first pointed out that if really there was any cruelty meted out to Jayashree by the appellant then it would have been clearly mentioned in the complaint filed by PW-2 on 8.5.1988 before the Sinnar Police. He took us through the complaint and urged that nowhere in the complaint any allegation is made against the appellant in regard to he beating her on making any demand as sought to be made out subsequently in the evidence led before the court. Learned counsel submitted that if really PW-6 had noticed the appellant beating the deceased on the day she committed suicide, the said fact would certainly have been mentioned in the complaint since it is the prosecution case that pw-6 did mentioned this to PW-2 when he returned back from the village. Similarly he pointed out from the evidence of Sonabai pw-3, who was a neighbour of PW-2 residing in Konambe village, that the allegation of beating and the demand of Rs. 5000 as stated by her before the court was not stated by her when her statement was recorded during the course of investigation by the investigating agency, hence the same should be treated as an improvement. Similarly with reference to the evidence of PW-6, the nephew of the deceased, the learned counsel submitted that his evidence is also full of material contradictions, creating serious doubt as to his having witnesses the alleged assault by the appellant on the deceased. In these circumstances learned counsel submits that both the courts below have failed to notice these vital defects in the prosecution case hence they erred in coming to the conclusion that the prosecution has established its case against the appellant.