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nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 643 OF 2006
WITH
CRIMINAL APPLICATION NO. 626 OF 2012
Sachin Nagnath Satpute
Age. 26 yrs., Occ. : Agri.
R.o. : Patkul, Taluka Mohol,
District - Solapur ...Appellant
(At present at Central Jail, Solapur) (Orig.Accused no.1)
Vs.
The State of Maharashtra
(Notice to be served upon A.P.P.
High Court, Appellate Side, Bombay) ...Respondent
WITH
CRIMINAL APPEAL NO. 644 OF 2006
1) Nagnath Gajendra Satpute
Age : 51 yrs., Occ. : Nil.
R.o. : Patkul, Taluka Mohol,
District - Solapur
2) Nitin Nagnath Satpute
Age : 25 yrs., Occ. : Nil.
R.o. : Patkul, Taluka Mohol,
District - Solapur
3) Nagarbai Nagnath Satpute
Age : 36 yrs., Occ. : Household
R.o. : Patkul, Taluka Mohol, ...Appellants
District - Solapur (Orig.Accused no. 2 to 4)
Vs.
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The State of Maharashtra
(Notice to be served upon A.P.P.
High Court, Appellate Side, Bombay) ...Respondent
********
Mr. D.G. Khamkar, for the Appellants.
Mr. J.P. Yagnik, APP for the State.
********
CORAM: V.M. KANADE &
P.D KODE, JJ.
JUDGMENT RESERVED ON : 14.08.2012
JUDGMENT PRONOUNCED ON : 18.10.2012
JUDGMENT (PER. V.M. KANADE,J.)
1. Heard, Mr. D.G. Khamkar, Learned Counsel for the Appellant and Mr. J.P. Yagnik, Learned APP for the State.
2. The Appellant is aggrieved by the Judgment and Order passed by the Session Court who was pleased to convict the appellant for the offence punishable under Section 302 of the Indian Penal Code.
3. The prosecution case in brief is that the accused got married to Vaishali on 15th July, 2002 and one daughter was born out of the said marriage. The prosecution case is that the accused started demanding Rs. 50,000/- from his wife for installing water pipeline in the land. It is alleged that the appellant used to quarrel with the wife on account of non-payment of the said amount and used to assault ::: Downloaded on - 09/06/2013 19:17:45 ::: 3/7 apeal.643a.w644-06.doc her. The prosecution case is that on 10th February, 2005, Vaishali committed suicide by pouring kerosene on her person and setting herself on fire. Initially case of accidental death was registered vide A.D. no. 11 of 2005.
Thereafter the mother of the deceased-Vaishali lodged a complaint for the offence punishable under Sections 498-A 306 r/w 34 of the Indian Penal Code. The charge-sheet was accordingly filed after investigation was completed and the case was committed to the Court of Sessions. Charge for the offence punishable under Section 498A, 306 r/w 34 of the Indian Penal Code were framed.
4. Initially the prosecution examined the relatives of the deceased who stated in the evidence that the deceased committed suicide on account of harassment by the accused. The prosecution thereafter examined Dr. Santosh Nagnath Bhadakwad (PW.5). The said witness had performed the postmortem. The cause of death was reserved after the postmortem was performed by the Doctor. When his evidence was recorded in the court, he gave an opinion that the death of the deceased was caused due to asphyxia due to smothering. He further stated in his evidence that injury 17(a) was possible by keeping pillow on face and pushing it by hands. He further stated that if the patient is alive and then set on fire then smoke particles are noticed in nostrial, trachea and also in the stomach. However, no such smoke particles were noticed and therefore he gave an opinion that the case ::: Downloaded on - 09/06/2013 19:17:45 ::: 4/7 apeal.643a.w644-06.doc was of homicidal death. After the evidence of Doctor was recorded the trial court modified the charge and added the offence punishable under Section 302 r/w. 34 of the Indian Penal Code and Section 201 and an alternate charge under Section 306 of the Indian Penal Code r/w. 34 of the Indian Penal Code was also added.
5. Learned Counsel appearing on behalf of the appellant submitted that firstly after the charge was modified, opportunity should have been given to the Investigating Officer to further investigate the case. However, without giving any such opportunity the trial court was pleased to alter the said charge. He further submitted that once a charge under Section 302 was framed an alternate charge of abatement to commit suicide under Section 306 could not have been framed by the trial court. He submitted that the relatives of the deceased, PW.1, PW.2 and PW.3 had deposed that the deceased had committed suicide and did not make any allegation that the accused had committed murder of his wife. It is submitted that the trial court erred in convicting the appellant only on the basis of the evidence of the Doctor who has given an opinion that the death of deceased-Vaishali was homicidal. It is submitted that in order to establish the charge of murder there was no evidence led by the prosecution.
6. Learned APP appearing on behalf of the State on the other hand supported the Judgment and Order passed by the ::: Downloaded on - 09/06/2013 19:17:45 ::: 5/7 apeal.643a.w644-06.doc trial court and submitted that the trial court had correctly assessed the evidence and had convicted the accused for the offence punishable under Section 302 r/w. 34 of the Indian Penal Code.
7. After having heard both the counsel at length, we are of the view that the prosecution has completely failed to establish the evidence against the accused beyond reasonable doubt. In the first place after the postmortem was performed and the Doctor reserved the cause of the death, it was the duty of the investigating officer to have first obtained the opinion of the Doctor and then to have completed the investigation. The investigating officer proceeded to investigate the case without obtaining the opinion of the Doctor regarding the cause of the death and as such entire evidence which was collected shows that the witness deposed that the deceased had committed suicide. The trial court thereafter on its own altered the charge after the evidence of the Doctor was recorded. The prosecution has not adduced any evidence to show that the appellant was present when the incident took place. One of the neighbour had seen the deceased after she was set on fire, however, the said neighbour was not examined. He could have thrown light on number of facts more particularly about the presence of the accused in the house either before the incident or after the incident in question took place.
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8. The trial court convicted the appellant though there was no direct or circumstantial evidence to establish the guilt of the accused. In our view the Sessions Court should have permitted the investigating officer to carry out further investigation. The learned Sessions Judge ought to have asked the Investigating Officer whether he would like to make further investigation. Instead of doing that the trial court proceeded with the trial and as a result no other witness could be examined by the prosecution to establish that the accused has committed the said offence. PW.3, Meera Ankush Gadekar in her evidence had only stated that she suspected that the accused must have murdered her daughter. It is not possible to convict the accused only on the basis of the suspicion. In the result we have no other option but to acquit the accused by giving them benefit of doubt.
9. Taking into consideration the evidence of PW.1, PW.2 and PW.3 in our view the trial court has rightly convicted the appellant for the offence punishable under Section 498-A r/w 34 of the Indian Penal Code. PW.1, PW.2 and PW.3 have established that the appellant used to harass and ill treat her and used to assault her physically and also cause mental cruelty on account of non-payment of Rs. 50,000/-
demanded by him. These three witnesses have corroborated each others testimony in respect of demand of dowry by the appellant. The prosecution therefore in our view has proved this fact beyond reasonable doubt.
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10. The trial court has also erred in framing alternate charge of 306 after the charge of murder was framed. Such an alternate inconsistent charge could not have been framed by the trial court.
11. The accused no. 1 is acquitted of the offence punishable under Section 302 and 201 of the Indian Penal Code.
12. The appellants are however convicted for the offence punishable under Section 498-A r/w 34 of the Indian Penal Code. The accused no. 1, is sentenced to suffer R.I for three years. The accused nos. 2 and 4 are sentenced to suffer R.I for 42 days and accused no. 3 is sentenced to suffer R.I for 50 days and they are directed to pay fine of Rs. 500/- each and in default to suffer R.I for three months. The appellant nos. 2, 3 and 4 were on bail, there bail bonds are cancelled. The accused no. 1 be released forthwith, if he has already undergone the sentence, unless he is required in any other case.
13. Both the appeals are accordingly partly allowed and disposed of. Criminal Application does not survive and is accordingly disposed of.
(P.D.KODE J.) (V.M. KANADE J.)
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