1 apeal244.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 244 OF 2002
State of Maharashtra,
through Police Station, Borakhedi,
District Buldhana. .... APPELLANT
VERSUS
Deleted as per
order dt.6-11-17 1) Dhonduji Rupchand Khakare,
Aged 49 years.
2) Sau. Shobhabai w/o Dhonduji Khakare,
Aged about 45 years,
3) Mahadeo Dhonduji Khakare,
Aged 23 years,
All r/o Murty, P.S. Borakhedi,
District Buldhana. .... RESPONDENTS
______________________________________________________________
Ms. Trupti Udeshi, Additional Public Prosecutor for the appellant,
Shri R.L. Khapre, Advocate for the respondents 2 and 3.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 6
DECEMBER, 2017
th
ORAL JUDGMENT :
The State is in appeal challenging the judgment and order dated 21-1-2002 passed by the learned Assistant Sessions Judge, ::: Uploaded on - 07/12/2017 ::: Downloaded on - 10/12/2017 01:36:04 ::: 2 apeal244.02 Buldana in Sessions Case 23/1996, by and under which the accused are acquitted of offences punishable under Sections 306 and 498A read with Section 34 of the Indian Penal Code.
2. Heard Ms. Trupti Udeshi, learned Additional Public Prosecutor for the appellant and Shri R.L. Khapre, learned Advocate for the respondents (hereinafter referred to as the "accused").
3. The accused faced trial on the charge that the deceased Sindhubai, who married accused 3 Mahadeo on 16-4-1994 at village Kothali, was subjected to ill-treatment to coerce her to satisfy the unlawful demand of Rs.10,000/- and thereby committed an offence punishable under Section 498-A read with Section 34 of the Indian Penal Code and that the accused in furtherance of common intention abetted Sindhubai to commit suicide.
4. Concededly, the deceased Sindhubai expired on 05-9-1995 due to consumption of poison. Ms. Trupti Udeshi, learned Additional Public Prosecutor submits that in view of the suicidal death within fifteen months of the marriage and the proof that Sindhubai was subjected to cruelty, presumption under Section 113-A of the Indian ::: Uploaded on - 07/12/2017 ::: Downloaded on - 10/12/2017 01:36:04 ::: 3 apeal244.02 Evidence Act, is activated. The learned Sessions Judge committed a serious error in not appreciating that the prosecution has established that the deceased was subjected to cruelty, is the submission.
5. Per contra, Shri R.L. Khapre, learned Counsel for the accused would submit that the prosecution has not proved that the death was suicidal and the finding of the learned Sessions Judge to the contrary is against the weight of the evidence on record. In any event, the possibility of an accidental consumption of insecticide is not excluded, is the submission. The learned Counsel for the accused would further submit that even if the death is assumed to be suicidal, the finding recorded that the prosecution has not established that the deceased was subjected to cruelty, is unexceptionable and is at any rate a possible view. The judgment and order impugned is not perverse, and this Court ought not to interfere in the judgment of acquittal, is the submission.
6. With the assistance of the learned Counsel, I have scrutinized the evidence on record closely, and having done so, I am inclined to agree with the submission of the learned Counsel for the accused that the view taken is a possible view. Neither the marshalling ::: Uploaded on - 07/12/2017 ::: Downloaded on - 10/12/2017 01:36:04 ::: 4 apeal244.02 of evidence nor the findings recorded suffer from any glaring error and in the absence of perversity this Court would be extremely slow in interfering with the judgment of acquittal.
7. The prosecution examined twelve witnesses. The accused Mahadeo, the husband of the deceased, has submitted a written statement under Section 313 of the Criminal Procedure Code. The accused Mahadeo also placed on record several documents, presumably to demonstrate that the allegation that the deceased Sindhubai was subjected to cruelty to coerce her to fulfill unlawful demand of Rs.10,000/-, is inherently improbable.
8. The informant Prakash Satav is the brother of the deceased who is examined as P.W.1. Vasudeo Satav, who is examined as P.W.2, is also the brother of the deceased. Kaduba Wade, who is examined as P.W.3, states that in the month of June 1995 he purchased pair of bullock from the informant Prakash for Rs.10,000/-. Damodhar Satav, who is examined as P.W.4, is the cousin brother of the deceased. Gopal Patil, who is examined as P.W.5, is also the cousin brother of the deceased. Bhagwan Satav, who is examined as P.W.6, is also the cousin brother of the deceased. Annapurnabai Khakre, who is ::: Uploaded on - 07/12/2017 ::: Downloaded on - 10/12/2017 01:36:04 ::: 5 apeal244.02 examined as P.W.7, did not support the prosecution. Kashiram Khakre, who is examined as P.W.8, is also a neighbour did not support the prosecution, Shakuntalabai Patil (Satav), who is examined as P.W.9, is the mother of the deceased. Prabhakar Khakre, who is examined as P.W.10, is a neighbour who did not support the prosecution. Sharad Rawale, who is examined as P.W.11, is the Judicial Magistrate First Class, Malkapur who recorded statements of witnesses under Section 164 of the Criminal Procedure Code. P.W.12 Kashinath Doifode is the Investigating Officer.
9. The evidence of the informant P.W.1 Prakash, P.W.2 Vasudeo and P.W.9 Shakuntalabai is that the deceased Sindhubai visited the parental house on the occasion of Diwali and conveyed that since the accused intended to dig well, money is required. P.W.1 Prakash states that Sindhubai requested him to give money. P.W.2 Vasudeo states that the deceased conveyed that the accused are ill- treating her and are demanding money for well and oil engine, which version is corroborated by P.W.9 Shakuntalabai.
10. Be it noted, that statement under Section 161 of the Criminal Procedure Code of P.W.9 Shakuntalabai is recorded belatedly ::: Uploaded on - 07/12/2017 ::: Downloaded on - 10/12/2017 01:36:04 ::: 6 apeal244.02 on 19-10-1995 and no explanation is forthcoming for the delay. The learned Sessions Judge records a finding, and rightly so, that the evidence of P.W.9 Shakuntalabai is suspect and not confidence inspiring.
11. The evidence of the six witnesses are related to the deceased Sindhubai is marred by inter se contradictions, improvements and embellishments. Illustratively, the informant Prakash is silent about the deceased Sindhubai narrating the ill-treatment on her visit to the parental house on the occasion of Diwali, the report Exhibit 75 does not make a reference to Sindhubai having conveyed that the accused were demanding Rs.10,000/- for digging well. The version of P.W.1 Prakash that when Sindhubai visited the parental house on the occasion of Sankrant, she narrated that the accused are demanding money for construction of well, is again inconsistent and discrepant with the evidence of P.W.4 Damodhar and P.W.9 Shakuntalabai. It is not deposed by either P.W.4 Damodhar or P.W.9 Shakuntalabai that during the said visit, the deceased Sindhubai visited Prakash alongwith her husband and brother-in-law and pleaded with P.W.1 Prakash to give money and that Prakash assured that he would give money to Sindhubai after disposing of agricultural land. This version is again ::: Uploaded on - 07/12/2017 ::: Downloaded on - 10/12/2017 01:36:04 ::: 7 apeal244.02 missing from the first information report Exhibit 75.
12. The evidence that accused Dhondu, the father-in-law of deceased Sindhubai asked for Rs.10,000/- for sowing operations and that an amount of Rs.5,000/- was paid by P.W.1 Prakash to accused Dhondu after selling bullocks for Rs.10,000/-, is correctly appreciated by the learned Sessions Judge. Such a request, even if it is assumed that the prosecution has duly proved that financial assistance was sought by the deceased-accused Dhondu, in the absence of any proof that the request was preceded or accompanied by coercion, would not attract Explanation (b) to Section 498-A of the Indian Penal Code.
13. Be it noted, that the allegations of ill-treatment are vague and sketchy. True it is, that the witnesses who are related to the deceased, have deposed in a parrot like manner that Sindhubai was subjected to ill-treatment. But then, no specific or overt act is brought on record and the manner and extent of ill-treatment is left by the prosecution to the surmises and conjecture of the speculative mind, which needless to say is not an exercise that can be done by the Court. The evidence on record omnibus, vague as the evidence is, even otherwise does not inspire confidence since the independent witnesses ::: Uploaded on - 07/12/2017 ::: Downloaded on - 10/12/2017 01:36:04 ::: 8 apeal244.02 have not supported the prosecution and the relatives of the deceased have spoken in different voices on material aspects.
14. Before parting with the judgment, I must record that the finding of the learned Sessions Judge that accidental death is ruled out, is debatable. The defence is that Sindhubai consumed insecticide accidentally. It is not in dispute that the consumption of insecticide was in the agricultural field of the family of the deceased. P.W.8 Kashiram, who has not supported the prosecution states that Sindhubai and accused 3 Mahadeo were spraying insecticide on cotton. The father-in-law of deceased accused Dhondu had sown cowpea (chawali) and mug as intercrops in the cotton crop. The witness states that he was told that Sindhubai had eaten corns of mug and cowpea (chawali). It is brought on record in the cross-examination of the Investigating Officer, that during investigation one Laxman Pralhad Ghule, who is not examined, revealed that on the day of the incident Sindhubai was plucking ponds of udid in the field and that insecticide was sprayed on the crops. The learned Sessions Judge analysis the evidence thus :
"16. In P.M. 4eport (Exhibit 17), doctor has not opined the cause of death. However, as per column No.21 of P.M. report, it indicates that 150 ml. greenish think fluid smell of ::: Uploaded on - 07/12/2017 ::: Downloaded on - 10/12/2017 01:36:04 ::: 9 apeal244.02 some poison was found in the stomach of deceased. From C.A. report of viscera of deceased, it is clear that organochloro insecticide Endosulfan (Thiodan) and petroleum hydrocarbon were detected. If deceased Sindhu was infected poison accidentally, then she would have shouted for help and accused nos. 1 and 3 would have turn to her. There is no evidence that deceased Sindhu shouted for help. Considering C.A. report and contents mentioned in P.M. report, it indicates that deceased Sindhubai committed suicide and there is no chance to say that it was accidental one."
15. It is too well settled, that the burden on the accused to prove the defence is not comparable to the burden on the prosecution which is to prove the offence beyond reasonable doubt, unless of course there is a reverse burden statutorily mandated. The limited burden on the accused is to create a reasonable doubt about the veracity of the prosecution case. This can be done by bringing on record material which would suggest an alternate hypothesis incompatible with the guilt of the accused. Benefit of doubt, must necessarily go to the accused. In the teeth of the evidence, in my opinion, the possibility that Sindhubai consumed insecticide accidentally, is not totally excluded.
16. In the light of the discussion supra, I do not find any ::: Uploaded on - 07/12/2017 ::: Downloaded on - 10/12/2017 01:36:04 ::: 10 apeal244.02 compelling reason to interfere with the judgment of acquittal.
17. The appeal is sans merit and is rejected. The bail bonds of the accused shall stand discharged.
JUDGE adgokar ::: Uploaded on - 07/12/2017 ::: Downloaded on - 10/12/2017 01:36:04 :::