apeal.358.2001 & rev.142.2001 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 358 OF 2001
The State of Maharashtra,
Through Police Station Officer
Police Station Umarkhed,Yavatmal ..... APPELLANT
...V E R S U S...
1. Gajanan Vishwanath Chincholkar,
aged about 23 years,
2. Vishwanath Tukaram Chincholkar,
aged about 52 years,
3. Sau. Kamlabai Vishwanath Chincholkar,
Aged about 47 years,
4. Shivraj Vishwanath Chincholkar,
Aged about 22 years,
5. Sau. Godawari W/o Sambhaji Warkad,
Aged about 55 years,
All R/o Sangam Choncholi,Umarkhed,
District-Yavatmal. ...RESPONDENTS
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Shri R.S.Nayak, Addl.P.P. for State.
Shri K.S.Narwade,Advocate for respondent nos. 1 and 3.
Respondent nos. 2 and 4 abated.
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WITH
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apeal.358.2001 & rev.142.2001 2
CRIMINAL REVISION APPLICATION NO. 142 OF 2001
Prakash S/o Shivshankar Narkhede,
R/o Khadki,Tq.Himatyatnagar,
District-Nanded. APPLICANT
...V E R S U S...
1. Gajanan Vishwanath Chincholkar,
aged about 26 years,
2. Vishwanath Tukaram Chincholkar,
aged about 56 years,
3. Sau. Kamlabai Vishwanath Chincholkar,
Aged about 49 years,
4. Ku.Jayrani D/o Vishwanath Chincholkar
(dead)
5. Shivraj Vishwanath Chincholkar,
Aged about 24 years,
6. Sau. Godawari W/o Sambhaji Warkad,
Aged about 58 years,
All R/o Sangam Choncholi,Tq.Umarkhed,
District-Yavatmal.
7. The State of Maharashtra,
Through Police Station Officer
Police Station Umarkhed,Yavatmal. ..NON-APPLICANTS
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Shri R.L.Khapre Advocate for applicant.
Shri K.S.Narwade,Advocate for non-applicant nos. 1 and 3.
Non-applicant nos. 2 and 5 abated.
Shri R.S.Nayak, Addl.P.P. for State.
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apeal.358.2001 & rev.142.2001 3
CORAM:- V. M. DESHPANDE, J.
DATED :- JUNE 28,2017 ORAL JUDGMENT This appeal as well as revision are disposed of by this common judgment since both arise out of judgment and order of acquittal passed by 2nd Ad-hoc Assistant Sessions Judge, Pusad dated 5/7/2001 in S.T.No.79/1998.
2. Initially, after the case was registered as S.T.No.79/1998 the learned trial Court framed a charge against 6 accused persons for the offence punishable under Sections 498-A and 306 r/w Section 34 of the Indian Penal Code. The accused persons were charged for causing harassment to deceased Surekha and abetting her to commit suicide.
3. I heard Shri R.S.Nayak,learned Addl.P.P. for State and Shri K.S.Narwade, learned advocate for respondents in criminal appeal and Shri R.L.Khapre for the appellant in revision. Shri R.L.Khapre, learned advocate appeared in this two matters and vehemently argued in support of the revision.
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4. Criminal revision is preferred by first informant Prakash Shivshankar Narkhede who was also examined as P.W.1 during the course of trial.
5. Learned 2nd Ad-hoc Assistant Sessions Judge-Pusad framed charge against respondents-accused under Exh.31. Respondents-accused denied charge and claimed for their trial. In order to bring home guilt of the respondents-accused the prosecution has examined in all 9 witnesses and also relied upon various documents
6. In the present appeal the respondents will be referred to by their original position in the trial.
7. Accused no.2 Vishwanath and accused no.3 Sau.Kamlabai are parents in law of deceased. Accused nos. 4 and 5 are sister in law and brother in law of deceased so also, accused no.6 Sau.Godawari was close relative of accused no.1 Gajanan.
8. This appeal was admitted only against original accused no.1 Gajanan, the husband, accused no.2 Vishwanath, the father in law and accused no.3 Sau. Kamlabai, the mother in law. ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:00:10 ::: apeal.358.2001 & rev.142.2001 5
9. During the pendency of the present appeal accused no.2 Vishwnath expired and vide order dated 25/11/2014 this Court ordered that appeal shall abated against accused no.2 Vishwanath. Thus, by the said order it was observed by this Court now the appeal will only proceed against original accused no.1 Gajanan and accused no.3 Sau.Kamlabai.
10. F.I.R.(Exh.61) is lodged by Prakash(PW1). He is the brother of deceased. His evidence shows that for initial period the relations between deceased and all accused persons were coordial and such relations continued till Diwali. However, thereafter harassment was started on the demand for motorcycle, television and on account of less dowry was paid. The evidence of this prosecution witness shows that the allegations about the illtreatment against all accused persons were very vague and general in nature.
11. It is the further evidence of this prosecution witness that his deceased sister informed his wife on 13/5/1998 that prior to 15 days of the said date original accused no.2 Vishwanath tried to molest deceased. The evidence of Prakash(PW1) shows that this fact was not disclosed to him by deceased. Even as per the claim of this prosecution witness this fact was intimated to him by his wife, ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:00:10 ::: apeal.358.2001 & rev.142.2001 6 however the prosecution has not examined the wife of Prakash(PW1). Therefore, the fact that the incident occurred 15 days prior to 13/5/1998 about molestation at the hands of original accused no.2 Vishwanath(deceased) is not proved at all.
12. Rajaram Gangaram Sakhare(PW2) is a panch witness. He was examined by prosecution to prove spot panchnama(Exh.64). The evidence of Kailas Ramrao Nawade(PW3) who is brother in law of deceased reveals that he got all information about the illtreatment from his wife Seema(PW8). Therefore the evidence of Kailash (PW3) is also a hearsay evidence. Shivdansingh Devisingh Chavan(PW5) and Ambadas Raoji Jadhao(PW6) are the panch witnesses in respect of the memorandum statement recorded by investigating officer Baburao Rayaji Khandare(PW9) by which investigating officer seized the endosulpfan poison at the behest of accused no.2 Vishwanath. This Court need not dilate on the issue of discovery and recovery of endosulfan at the behest of original accused no.2 since the appeal abated against him due to his death. Evidence of Rajaram Bhujanga Adkine(PW7) reveals all the allegations against deceased Vishwanath only. The evidence of Seemabai Kailash Nawade (PW8), the other sister of deceased who also used to reside in the same village also shows that her evidence is too general in nature in respect of the ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:00:10 ::: apeal.358.2001 & rev.142.2001 7 allegation of harassment against the surviving respondents-accused.
13. Dr.Prakash Baburao Shingam(PW4) has conducted post mortem and proved the same which is at Exh.68. Though he stated that the cause of death is aspyxia due to organo phosperus compound, he has admitted that in case of diphtheria froth can also come out from the mouth and nostrils. This autopsy surgeon never claims that he has preserved viscera of the deceased. Further, though P.W.9 claims that he sent viscera to the chemical analyser the said report is not coming on record. Consequently, it is crystal clear that the prosecution has utterly failed to prove that the cause of death was due to consumption of "organo phosperus compound".
14. Further the Court below in my view has rightly noticed that there is delay in lodging F.I.R. Though F.I.R. (Exh.61) is lodged on the very same day at 6.00 p.m. Prakash(PW1), the first informant who was the panch also on the inquest panchnama(Exh.62) which was performed at about 10.00 a.m. in the morning has failed to give any explanation.
15. Since there are no allegations against accused no.1 Gajanan or any other specific allegations against original accused ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:00:10 ::: apeal.358.2001 & rev.142.2001 8 no.3 Sau.Kamlabai I see no reason to upset the well reasoned judgment given by the learned Judge of the Court below. As observed, all the allegations in the testimony of Kailas (PW3) against original accused no.2 Vishwanath that he molested deceased, however the Court is not testing that evidence in respect of the same incident since accused no.2 Vishwanath is already expired.
16. In that view of the matter appeal fails. Consequently, the revision is also required to be rejected in view of the dismissal of State appeal. Hence, both the appeal and revision are dismissed.
JUDGE (kitey) ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:00:10 :::