Mahadeo Ramchandra Gaikwad And ANR v. State Of Maha

2024:BHC-AUG:11293 {1} CR APPEAL NO. 496 OF 2003

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD CRIMINAL APPEAL NO. 496 OF 2003 1.

Mahadeo s/o Ramchandra Gaikwad Age: 23 yrs., Occu.: Agri.

2.

Gangabai s/o Ramchandra Gaikwad Age: 40 yrs., Occu.: Household, Both r/o. Vidoli, Tq.Mantha, Dist.Jalna.

....Appellants

Versus

.

The State of Maharashtra ....Respondent .....

Advocate for Appellants : Mr. Satej S. Jadhav APP for Respondent : Mr.N.D.Batule .....

CORAM : ABHAY S. WAGHWASE, J.

RESERVED ON : 12 JUNE, 2024 PRONOUNCED ON : 21 JUNE, 2024 JUDGMENT :- 1.

Aggrieved by the judgment of order passed by the II Ad-hoc Additional Sessions Judge, Jalna, in Sessions Case No.8 of 2003, dated 30-06-2003, convicting appellants for offence under Sections 306 read with 34 and 498-A read with 34 of the Indian Penal Code (IPC) and sentencing them to suffer rigorous imprisonment for five years and two years respectively and to pay fine, appellants preferred instant appeal.

{2} CR APPEAL NO. 496 OF 2003 BRIEF FACTS OF THE CASE 2.

Seetabai @ Parvatibai was married to accused no.1 Mahadeo on 30-05-2002. After marriage, she went to reside with her husband and mother-in-law at village Vidoli, Tq.Mantha, Dist.Jalna. As per customs, after 3-4 days, she was brought by father to his house, she stayed for two days and again went back when accused husband came to take her. After 15 days, brother of Seetabai visited her to ascertain her well being and he brought her back to the maternal house. She again stayed for four days and during her such stay, she informed that husband and mother-in-law are demanding Rs.20,000/- for purchasing agricultural land. She also told that if she fails to bring the amount, she would not be allowed to stay in the house. She also informed that they used to beat her and keep her starved. However, she was again sent back.

After 15 days, son of brother-in-law of informant went to bring her. On the way back, Seetabai weeped and informed about above demand. When she went back, eight days thereafter, a message was received that she was serious. When informant and others went, they learnt that Seetabai had hanged herself. After last rituals, PW1 Abasaheb, father of deceased, lodged report, which was made basis of registration of crime.

{3} CR APPEAL NO. 496 OF 2003 On investigation and gathering sufficient evidence, both accused were chargesheeted and tried before learned II Ad-hoc Additional Sessions Judge, who by judgment and order dated 30-06-2003 recorded guilt of both accused husband and mother-inlaw for offence under Sections 498-A and 306 read with 34 of the IPC and sentenced to suffer imprisonment and to pay fine. Aggrieved by above conviction, appellants have preferred instant appeal questioning legality, maintainability and sustainability of the impugned judgment.

SUBMISSIONS On behalf of appellants :

3.

Sum and substance of the argument of learned counsel for appellants is that there is false implication by father of deceased on account of annoyance of losing daughter. He pointed out that deceased was used to town and city life. She was brought up at Selu, whereas after marriage, she was required to live at Vidoli, which is a small village. He pointed out that her conduct of repeatedly going to parents' house itself shows that she was not happy and ready to stay in the village. He took this court to the cross-examination faced by parents of deceased and would submit that it is evident from the

{4} CR APPEAL NO. 496 OF 2003 answers given by them that victim was herself unhappy and unwilling to lead village life.

4.

He further pointed out that there was no demand as alleged. That there are no details as to where the land was supposed to be purchased. That infact there was no dowry demand and even mother of deceased has candidly admitted to that extent. Hence, according to learned Counsel allegation of demand of money are false and afterthought. He pointed out that apparently there are omnibus allegations of demand and beating. He pointed out that there are allegations of keeping her starved, but condition of body reflected in post mortem, indicates something else and contrary. 5.

He submitted that learned trial Court has not appreciated the evidence in the line of requirement of existence of essential ingredients of both Sections 498-A as well as 306 of the IPC. He pointed out that evidence of prosecution was lacking on the aspect of cruelty as contemplated under law. He further pointed out that even the elements of abetment, inducement, which are sine qua non for attracting offence under Section 306 of the IPC are explicitly missing from the prosecution evidence, but still according to him, learned

{5} CR APPEAL NO. 496 OF 2003 trial Court, returned the guilt probably because death has taken place in short span and surprisingly applied and invoked Section 113A of the Indian Evidence Act even when it was unwarranted and called for.

6.

He lastly pointed out that very approach taken by learned trial Court in applying presumption is also against law, as according to him, unless foundational facts had been proved beyond reasonable doubt by prosecution, and unless essential ingredients for each of the offences were cogently proved, it was not open for learned trial Judge to invoke provisions of Section 113A of the Indian Evidence Act. Consequently, he criticized the judgment both for improper appreciation of evidence and failure to apply correct law and thus, he prayed to interfere by setting aside impugned judgment. On behalf of State :

7.

Supporting the impugned judgment, learned APP would point out that barely after couple of weeks of marriage, accused husband and mother-in-law put up demand of Rs.20,000/-. That in the very second visit to the maternal house, victim promptly reported the above demand to her family members. That she was also beaten and

{6} CR APPEAL NO. 496 OF 2003 kept starved to coerce her to seek money from her parents. That brother and cousin brother of deceased, who went to fetch her, are also examined. That deceased had informed them too regarding demand and ill-treatment. That independent neighbour is also examined. According to learned APP, all witnesses are consistent and their testimonies have remained unshaken throughout. He submits that only because of ill-treatment and harassment, Seetabai hanged herself and there was no other reason. According to learned APP, unnatural death has taken place in the house of accused. Therefore, they being solely responsible and answerable, learned APP submits that learned trial Court rightly held them guilty and convicted them and hence, he prays to dismiss the appeal for want of merits. SUM AND SUBSTANCE OF PROSECUTION EVIDENCE 8.

In support of its case, prosecution has examined in all six witnesses in trial Court. Sum and substance of their evidence is as under :

PW1 Abasaheb s/o Gangadhar Kale is father of deceased and informant. His evidence is at exh.31. He deposed about date of marriage, his daughter going to reside at Vidoli to stay with husband and mother-in-law. He stated that for initial two days, everything

{7} CR APPEAL NO. 496 OF 2003 was smooth, but when his daughter came subsequently to maternal house, she reported about demand of Rs.20,000/- for purchase of land put up by husband and mother-in-law. That she reported beating and starvation. That his son and son of his brother-in-law, who went to fetch her, were also informed by his daughter about demand and ill-treatment. He deposed that finally on 29-07-2002, news of her serious condition was received and when they went to Vidoli, they learnt that Seetabai had hanged herself. According to him, accused husband and mother-in-law are responsible and so he lodged report.

PW2 Chandabai w/o Abasaheb Kale is mother of deceased. Her evidence is at exh.33. She stated that after marriage, Seetabai came and stayed for two days at maternal house and went back with her husband, who had come to take her. That after 15 days, when she was again brought, at that time, she informed while crying regarding demand of Rs.20,000/- for purchase of agricultural land, about harassment, she being kept starved and beaten. At that time, she stayed for three days. Thereafter, her son took her to matrimonial house. That after 15 days, they sent Vishnu Gunjkar to house of accused for seeing condition of my daughter. Vishnu brought

{8} CR APPEAL NO. 496 OF 2003 Seetabai to maternal house. Vishnu and her daughter told that accused persons were harassing her on account of demand of Rs.20,000/- for purchasing agricultural land. At that time, Seetabai stayed there for four days. That when she went back, after 8-10 days, they got the news. She deposed that she suspected that accused persons killed her daughter.

PW3 Narayan s/o Rambhau Dhavale is neighbour of PW1 Abasaheb and PW2 Chandabai. He is an independent witness. His evidence is at exh.34. He stated that when deceased came for tea at his house, she reported about accused asking her to bring Rs.20,000/- from her parents for purchase of agricultural land. She also stated about both accused harassing her. According to him, he was told by her to inform about this to her parents. She also told that she was not given food. He claims that he reported this to PW1. After 8-10 days, they got message that Seetabai was serious. PW4 Vishnu s/o Narayan Gunjkar is cousin brother of deceased. His evidence is at exh.35. He deposed that he was sent to Vidoli to make enquriy about Seetabai. According to him, when he reached there, Seetabai expressed her desire to accompany him to back to Selu. In return journey, she told about accused asking to

{9} CR APPEAL NO. 496 OF 2003 bring Rs.20,000/- for purchase of agricultural land. At such time, she was weeping and she told that both accused harassed her by beating and keeping her under starvation. After 15 days, the incident occurred. He deposed that on account of demand of Rs.20,000/- Seetabai died.

PW5 Prabhabai w/o Balaprasad Somani is Pancha to inquest panchanama exh.39. She is an independent witness. Her evidence is at exh.38. She deposed about panchanama to be drawn. She also deposed about hearing of demand and ill-treatment. She also deposed that deceased told her during first visit that she was living happily, during second visit, she told that she was living ordinary married life and during third visit, she told that accused beat her, kept her starved and asked her to bring Rs.20,000/-. PW6 Sandipan s/o Shankarrao Kamble is Investigating Officer. His evidence is at exh.48.

ANALYSIS 9.

Learned trial Court has recorded guilt of both appellants for offence under Sections 498-A and 306 read with 34 of the IPC.

{10} CR APPEAL NO. 496 OF 2003 FIRST CHARGE - SECTION 498-A :

10.

First let us deal with charge under Section 498-A of the IPC. Before appreciating the evidence in the case in hand, it would be profitable to give a brief account of settled legal position and legal requirements for attracting said charge.

Law is fairly settled that, for attracting the charge under Section 498-A of IPC, prosecution is duty bound to prove following essential ingredients :- "(1) A woman was married;

(2) She was subjected to cruelty;

(3) Such cruelty consisted in - (i) any lawful conduct as was likely to drive such woman to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical;

(ii) harm to such woman with a view to coercing her to meet unlawful demand for property or valuable security or on account of failure of such woman or any of her relations to meet the lawful demand ;

(iii) the woman was subjected to such cruelty by her husband or any relation of her husband."

JUDICIAL PRECEDENT :

11.

As to what actually constitutes cruelty has been lucidly and succinctly dealt in the landmark case of Giridhar Shankar Tawade v. State of Maharashtra (2002) 5 SCC 177, where the Court dwelling

{11} CR APPEAL NO. 496 OF 2003 upon the scope and purport of Section 498-A IPC has held as under: "The basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word 'cruelty' as is expressed by the legislatures : Whereas explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed in equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrance the attributes of 'cruelty' in terms of Section 498-A."

[emphasis added] Similar views are echoed in Gurnaib Singh v. State of Punjab (2013) 7 SCC 108, wherein it is held as under: "Clause (a) of the Explanation to the aforesaid provision defines "cruelty" to mean "any willful conduct which is of such a nature as is likely to drive the woman to commit

{12} CR APPEAL NO. 496 OF 2003 suicide". Clause (b) of the Explanation pertains to unlawful demand. Clause (a) can take in its ambit mental cruelty."

In State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582, the Hon'ble Apex Court has observed that, "Harassment simplicitor is not cruelty. Only when such harassment is committed for the purpose of coercing a woman or any other person to meet an unlawful demand or property etc. alone would amount to cruelty punishable under Section 498-A IPC".

In Bhaskar Lal Sharma v. Monica (2009) 10 SCC 604, the Hon'ble Apex court reiterated the essential ingredients for the said offence and pleadings which are necessary in that regard. Very recently in the case of K. Subba Rao v. The State of Telangana (2018) 14 SCC 452, following observations are made: "6.

The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out."

{13} CR APPEAL NO. 496 OF 2003 12.

Evidence of PW1 Abasaheb, informant / father of deceased, his wife PW2 Chandabai, mother of deceased and PW4 Vishnu, cousin brother of deceased is of relevance. Prosecution has also adduced evidence of immediate neighbour PW3 Narayan.

13.

Sifted evidence of parents of deceased. Both PW1 Abasaheb and PW2 Chandabai, parents of deceased, deposed that deceased returned to their house after cohabiting with husband for 3-4 days. They both speak that she stayed at their place for two days. PW1 informant deposed in examination-in-chief itself that during first visit after marriage, she told him that her marital life is going smoothly. That accused husband came to take her and daughter was sent back with him. Both parents also further deposed that after 15 days, they sent their elder son Digamber to Vidoli and he brought his daughter to their house. According to informant, she stayed for four days and during her such stay, she told that both accused were asking her to bring Rs.20,000/- for purchasing agricultural land. According to him, she further told that accused persons said that if she fails to bring money, she would not be allowed to live in the house. That she also stated that they used to beat her and keep her starved. But he still sent his daughter with his

{14} CR APPEAL NO. 496 OF 2003 elder son to accused.

PW2 Chandabai deposed that their son Digamber brought her from Vidoli and after coming to house, her daughter started weeping saying that accused were demanding Rs.20,000/- for purchase of agricultural land, she was harassed on the account of such demand, she was kept starved and beaten.

Thus, informant father has stated that she reported about demand and further informed about accused asking her not to come without bringing money. Version to this extent is not stated by PW2 wife of PW1. PW2 merely speaks of hearing about harassment. This is general and omnibus allegation. There are allegations of beating but there is no clarification and elaboration about said episode. Even brother Digamber, who allegedly was sent and who brought victim from her matrimonial house, is not examined. Infact, such brother was a material witness.

14.

If testimonies of PW1 Abasaheb and PW2 Chandabai are further carefully analyzed and considered, then it is emerging that approximate stay of victim till she went back after reporting demand and ill-treatment is a period of only 51 days i.e. in the house of accused. She seems to have spent nine days at parents house. Out of

{15} CR APPEAL NO. 496 OF 2003 above 51 days, during her first visit, she has already reported her father that she was living happy married life. Therefore, apparently allegations of demand of Rs.20,000/- are reported only during second visit.

15.

Informant alone speaks that his daughter told him that she would not be allowed to come in house unless she brings amount. But she had been to the house of accused and also seems to have stayed for further 15 days i.e. till PW4 Vishnu went to verify her well being.

PW4 Vishnu has deposed in his examination-in-chief itself that he went to house of accused to make enquiry about Seetabai and during his such visit, deceased expressed her desire to return back to her parents' house at Selu and she even came back with PW4 Vishnu. He claims that in the journey, she told about demand and illtreatment. Even what was the nature of ill-treatment is not stated by him. Informant in his cross-examination has admitted that after marriage, his daughter came to the house thrice and eight days after her departure to stay with accused, the incident occurred. It is noticed that inspite of allegation of assault, there is no distinct complaint to that extent. Where she was beaten and whether or not

{16} CR APPEAL NO. 496 OF 2003 she suffered any injury is not clarified.

16.

Though there are allegation of keeping her starved, as pointed out by learned counsel for appellants, in post mortem report, Autopsy Doctor had noted condition of dead body as well nourished. Consequently, evidence of parents, about harassment in the backdrop of demand, cannot be readily accepted. Apparently, there is fragile and weak evidence on the point of ill-treatment as general allegations are raised about keeping her starved and beating without proper elaboration. Which of the two accused played what role is not categorically stated.

17.

As pointed out, PW2 mother has already admitted in crossexamination that there is no dowry demand. Her such answer inflicts severe blow to the prosecution version.

18.

PW3 Narayan, neighbour stated that deceased during her second visit, reported that accused asked her to bring Rs.20,000/- for purchase of agricultural land, according to him, she stated that both accused used to harass her. It is to be noted that he does not speak about being assaulted or beaten or even kept starved as is stated by

{17} CR APPEAL NO. 496 OF 2003 parents. Surprisingly he deposed that victim told him that he should inform such facts to her parents. He further claims to have given information to PW1. But PW1 Abasaheb and PW2 Chandabai, who are already informed, do not speak about PW3 also reporting them about disclosure allegedly made by victim to him. Therefore, apparently, this witness is a got up witness. Therefore, for above reasons, witnesses are not found to be consistent. There is absolutely no evidence on the point of cruelty. Neither instances of ill-treatment or its nature are coming on record except stating that there was demand and beating. With such material on record, it cannot be said that offence of cruelty is made out. None of the witnesses are speaking about incessant demand or continuous harassment, physical or mental so as to attract rigors of Section 498-A.

SECOND CHARGE - SECTION 306 :

19.

Guilt is also recorded by trial Judge for offence under Section 306 of the IPC.

Law is fairly settled that offence of 306 can be said to be proved only when prosecution demonstrates abetment to commit suicide. As to what amounts to abetment is also fairly settled.

{18} CR APPEAL NO. 496 OF 2003 Section 107 of the IPC deals with abetment. It reads thus: "107. Abetment of a thing- A person abets the doing of a thing, who - First. - Instigates any person to do that thing; or Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission lakes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing.

Section 306 of the IPC deals with abetment of suicide. Ingredients of this section are as under :

(1) There was suicide of a person;

(2) It was committed in consequence of abetment of the accused.

JUDICIAL PRECEDENT :

20.

In order to attract the charge of Section 306 of IPC, it is incumbent upon prosecution to establish incitement, instigation, aiding or abetment to commit suicide. Law to this extent has been fairly settled in series of cases. Scope of Sections 107 and 306 IPC has been time and again decided by the Hon'ble Apex Court in the cases viz; State of West Bengal v. Orilal Jaiswal (1994) 1 SCC 73; Ramesh Kumar v. State of Chhatisgarh reported in(2001) 9 SCC 618;

{19} CR APPEAL NO. 496 OF 2003 Sanju @ Sanjay Singh Sengar v. State of M.P. reported in(2002) 5 SCC 371; Chitresh Kumar Chopra v. State (2009) 16 SCC 605; Amalendu Pal alias Jhantu v. State of West Bengal (2010) 1 SCC 707; State of West Bengal v. Indrajit Kundu and others (2019) 10 SCC 188; Rajesh v. State of Haryana (2020) 15 SCC 359; V.P.Singh etc. v. State of Punjab and others 2022 SCC Online SC 1999 and very recently in the case of Kumar @ Shiva Kumar v. State of Karnataka [Criminal Appeal No. 1427 of 2011 decided on 01.03.

2024], In above series of cases, it has been held and reiterated that Court should be extremely careful in assessing the facts and circumstances of each case as well as the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. Principle that is culled out is that accused persons should specifically intend that deceased should end up her life. With that sole object in mind, they must have deliberately created circumstances, which are of such nature, that deceased is left with no other alternative but to end up her life. Only in such circumstances, charge of abetment to commit suicide can be said to be successfully brought home. 21.

Here in the case in hand, deceased allegedly hanged herself on

{20} CR APPEAL NO. 496 OF 2003 29-07-2002. Precisely what happened on that day or in immediate proximity of alleged hanging is not coming on record. There is no evidence to show that husband and mother-in-law were in the house at the time of incident. There is no evidence that in the backdrop of demand, there was cruelty, which was of such nature and gravity that deceased was forced to hang herself as it had become unbearable for her. Unless there is material to show that accused persons with mens rea abetted the suicide or induced deceased to commit suicide, law does not permit holding accused responsible for offence under Section 306 of the IPC.

22.

It is pointed out by learned counsel for appellants that inspite of no evidence either about cruelty or abetment, learned trial Court has recorded guilt by invoking section 113A of the Indian Evidence Act.

23.

No doubt Sections 113A and B of the Indian Evidence Act permits the Court to draw presumption regarding abetment to commit suicide and if accused fails to rebut the presumption, conviction can be recorded. However, the rider and pre-requisite is that required ingredients under Section 306 of the IPC are first to be

{21} CR APPEAL NO. 496 OF 2003 cogently and firmly established.

Here learned trial Judge, as is evident from paragraph 32 of judgment, seems to have invoked presumption under Section 113A of the Indian Evidence Act and held that accused abetted the suicide. 24.

Section 113A reads as under:

"113-A. Presumption as to abetment of suicide by a married woman. - When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."

Therefore, for invoking above provision, firstly it has to be demonstrated by the prosecution that husband or his relatives subjected victim to cruelty and secondly, she committed suicide within seven years of her marriage only because of such cruelty. Here no doubt death has taken place within barely two months of marriage, but as discussed above, here on re-appreciation of

{22} CR APPEAL NO. 496 OF 2003 evidence, this Court does not find any cogent, convincing or legally acceptable evidence on the point of ill-treatment or cruelty. The wording used in Section 113-A of the Indian Evidence Act is that the "the Court may presume". Therefore, it is open for the Court to apply and invoke above provision, but only when prosecution has established beyond reasonable doubt that deceased was subjected to cruelty and harassment.

25.

The Hon'ble Apex Court in its recent judgment in the case of Naresh Kumar v. State of Haryana (2024) 3 SCC 573 has succinctly and lucidly summarized law on Section 306 of the Indian Penal Code as well as Section 113-A of the Indian Evidence Act and the observations in the above judgment are as under : "Held, basic ingredients to constitute an offence under S. 306 are suicidal death and abetment thereof. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Thus, without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Thus, in order to convict a person under S. 306 there has to be a clear mens rea to commit the offence and mere harassment, cannot be sufficient to hold an accused guilty of abetting the commission of suicide. Prosecution

{23} CR APPEAL NO. 496 OF 2003 has to prove an active act or direct act which led the deceased to commit suicide. Ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous."

It is further held, "mere fact that the deceased committed suicide within a period of seven years of her marriage, the presumption under S. 113-A would not automatically apply - Because as per the legislative mandate, presumption under S. 113-A may be raised only when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty.

It is further observed that " the court may presume having regard to all other circumstances of the case that such suicide had been abetted by her husband", the presumption, held discretionary, unlike the presumption under S. 113-B of the Evidence Act, which is mandatory - Therefore, before raising presumption under S. 113-A, prosecution, held, must show evidence of cruelty or incessant harassment in that regard.

Further held, the court should be extremely careful in assessing evidence under S. 113-A for finding out if cruelty was meted out and, thus, if it transpires that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite

{24} CR APPEAL NO. 496 OF 2003 common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court would not be satisfied for holding that the accused charged of abetting the offence of suicide was guilty." It is thus summarized on re-appreciation and re-analysis of evidence on record that here in the case in hand, on the first count, except general and omnibus allegations of beating and starvation, which are not supported by distinct evidence, there is no trustworthy and reliable evidence. Cruelty as contemplated under Section 498-A is not finding place in the prosecution evidence.

Secondly, what exactly prompted deceased to hang herself is also not getting clear for want of evidence. Presence of accused at that relevant point of time is not proved beyond reasonable doubt. Further as required by law, here there is nothing to show that there was consistent, persistent or incessant demand and on failure to meet demand, there was cruelty, which was further of such nature that life of deceased was made so miserably that she was left with no other alternative but to end up her life. There is no live link between demand, cruelty and suicide. Evidence to connect death to cruelty is not forthcoming.

{25} CR APPEAL NO. 496 OF 2003 cannot be said to be proved.

26.

Resultantly, Prosecution evidence on re-appreciation is falling short of necessary ingredients to attract both the charges i.e. under Section 498-A and 306 of IPC.

27.

Perused the judgment under challenge. On going through the judgment, it is noticed that there is improper appreciation of evidence on record. Answers given by parents and other witnesses while under cross-examination are not taken into consideration. Learned trial Court directly proceeded to apply and invoke provisions under Section 113-A of the Indian Evidence Act without getting satisfied as to whether cruelty and suicide is satisfactorily proved beyond reasonable doubt. Consequently, interference at the hands of this Court is called for. Accordingly, I proceed to pass following order:

ORDER

I) Criminal Appeal No.496 of 2003 is allowed.

{26} CR APPEAL NO. 496 OF 2003 II) The conviction awarded to appellant no.1 - Mahadeo Ramchandra Gaikwad and appellant no.2 - Gangabai Ramchandra Gaikwad in Sessions Case No.8 of 2003 by the learned II Ad-hoc Additional Sessions Judge, Jalna on 30-06-2003 for the offence punishable under Section 306 read with 34 and under Section 498-A read with 34 of the Indian Penal Code, stands quashed and set aside.

III) The appellants stands acquitted of the offence punishable under Section 306 r/w 34 and under Section 498-A r/w 34 of the Indian Penal Code.

IV) The bail bonds of appellants stand cancelled. V) The fine amount deposited, if any, be refunded to the appellants after the statutory period.

VI) It is clarified that there is no change as regards the order in respect of disposal of muddemal.

( ABHAY S. WAGHWASE ) JUDGE SPT