205.02crapl
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR
CRIMINAL APPEAL NO.205 OF 2002
Manohar s/o Vitthal Jadhao,
Aged about 38 years,
R/o. Daheli, Taluka Darwha,
District Yavatmal. ..APPELLANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station, Darwha,
Tq. Darwha, Dist. Yevatmal. ..RESPONDENT
Mr M.T. Dhatrak, Advocate for appellant;
Mr Vishal Gangane, Addl. Public Prosecutor,
Advocate for respondent
CORAM : N.W. SAMBRE, J.
DATE : 14th MARCH, 2017 ORAL JUDGMENT :
Learned Adhoc Additional Session Judge, Yavatmal, in Sessions Trial No. 149 of 1996, was pleased to convict the appellant vide judgment and order dated 12th March, 2002, for the offence punishable under Sections 498-A of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for two years with fine of Rs.1000/-, in default, further rigorous imprisonment for two ::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 19:41:36 ::: 205.02crapl (2) months, and under Section 306 of the Indian Penal Code, rigorous imprisonment for three years with fine of Rs.2000/-, in default to suffer rigorous imprisonment for two months. Against the said conviction, present appeal is preferred by the appellant-accused.
2. Balchandra Belorkar, P.S.I. attached to the police station, Darwha, PW-5, who is examined at Exhibit-36, received report from one Vishwanath, father of deceased Chhaya on 30th March, 1996. It is claimed that deceased Chhaya, who was married to the accused 15 to 20 years back, as is claimed by PW-1 Vishwanath, father of deceased and PW-2, mother of deceased claimed that, she was married 9 to 10 years, committed suicide, which was abetted by the appellant-accused resulting into registration of crime in question.
3. Deceased Chhaya died due to cardio- respiratory arrest due to asphyxia due to hanging and seizure panchnama qua rope used for hanging is carried out as per Exhibit-17, spot panchnama ::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 19:41:36 ::: 205.02crapl (3) Exhibit-16, inquest panchnama Exhibit 19, Murg Khabri Exhibit-32, Exhibit-20 body forwarding report for post mortem, seizure of the clothes is by virtue of panchnama Exhibit-23. Exhibit-29 is oral report given by the complainant against the accused i.e. by PW-1. Exhibit-30 is the first information report. In support of offence, as has been alleged, the Investigating Officer recorded statements of witnesses Vachchalabai Gadhe, Laxmibai Ghadge, Himmatrao Gadhe, Vishwanath along with other witnesses. Post mortem report is at Exhibit-24, request for C.A. report sending viscera to the Forensic Science Laboratory is at Exhibit-26.
4. After investigation in the matter is complete, charge sheet is filed, charge came to be framed against the accused at Exhibit-10 for offence punishable under Sections 306, 498-A of the Indian Penal Code.
5. In support of prosecution case, Vishwanath, father of deceased Chhaya is examined ::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 19:41:36 ::: 205.02crapl (4) at Exhibit-28, her mother Vachchalabai at Exhibit-31, her maternal aunt Laxmibai at Exhibit-34, her real brother Himmatrao at Exhibit-35 and the Investigating Officer at Exhibit-36 as PW-5.
6. PW-1 Vishwanath, father of deceased Chhaya, has stated that his daughter was married to accused for more than 15 to 20 years and was residing at Darwha. He has further claimed that there was harassment at the hands of accused. It is claimed that house mortgaged by accused was released upon making payment of Rs.10,000/- by PW-4 Himmatrao, brother in law of accused. In his cross examination, he has admitted that he was regularly visiting his daughter Chhaya and Chhaya was also frequently visiting his place at Digras. It is then claimed that he was also in visiting terms with the neighbour of deceased Chhaya whenever he used to visit Darwha, place of resident of Chhaya. It has also come on record that Himmatrao, son of appellant was serving in the Army and used to visit once in a year. The daughter in law was residing ::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 19:41:36 ::: 205.02crapl (5) with PW-1 & PW-2 and there used to be quarrel between said daughter in law and deceased Chhaya. It has also come on record that accused shifted from Darwha to Daheli along with deceased Chhaya in view of change in place of his employment. He without naming the lady has stated that accused has kept concubine, whereas accused has alleged that Chhaya has illicit relation with one Muslim boy.
7. PW-2 Vachchalabai has narrated same line of evidence. However, stated that marriage of Chhaya with accused took place 9 to 10 years back. It has also come on record that elder daughter of Chhaya is specially abled. In the cross examination, it is brought on record that accused made allegation against Chhaya of illicit relations with muslim boy. It is also brought during the cross examination of this witness that Chhaya never expressed that she wanted to commit suicide for allegations of adultery or cruelty practiced. If the evidence of both these witnesses are evaluated, it is required to be noted that issue qua cruelty practiced by the accused is non specific and is ::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 19:41:36 ::: 205.02crapl (6) vaguely narrated by witnesses. Neither specific instances nor any incident of such cruelty is narrated in the evidence of these two witnesses, who are father and mother of deceased Chhaya and father in law and mother in law of respondent- accused.
8. PW-3, who is examined at Exhibit-34, maternal aunt of deceased, in cross examination has stated that statement under Section 161 of the Code of Criminal was not read over to her by the police and police has taken her signature. She then claimed that police informed her about quarrels between accused and Chhaya, which does not appear to be the case of prosecution. There is hardly any substance, so as to infer from examination and cross examination of this witness to draw to the case of prosecution.
9. PW-4 Himmatrao, brother of deceased Chhaya and son of PW-1 and PW-2, who is examined at Exhibit-35, has stated that accused was addicted to liquor. According to him, there was harassment to ::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 19:41:36 ::: 205.02crapl (7) Chhaya by beating and he got release the house of respondent-accused from mortgage by making payment. He has stated that police has never recorded his statement. This witness has also not narrated any specific instance or any event so as to infer practice of cruelty and abetment of suicide of Chhaya.
10. From the cumulative effect of evidence of witnesses PW-1 to 4, there is hardly any material to infer that accused has practiced cruelty on deceased Chhaya, which has resulted into abetting suicide by said Chhaya. Even if, testimonies of these witnesses are analyzed independently, it has not come on record that ingredients of Section 306 of the Indian Penal Code are satisfied. None of the witness has stated that deceased Chhaya ever narrated to them that being frustrated because of approach of respondent-accused of having concubine and meting out cruelty to Chhaya, she will commit suicide. Rather from the evidence of PW-2, in law of respondent-accused and mother of deceased Chhaya, it has come on record that deceased Chhaya ::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 19:41:36 ::: 205.02crapl (8) never expressed any instance when respondent- accused had beaten her. This witness narrates that Chaya never explained to her of getting feeling like committing suicide because of the act of the accused.
11. In the background of above, it has to be inferred that there is hardly and material on record to infer that respondent-accused has committed offence punishable under section 306 (abetment to suicide) or under Section 498-A (causing cruelty) of the Indian Penal Code.
12. The cumulative effect of evidence of PW-1 Vishwanath, father of deceased Chhaya, PW-2, mother of deceased Chhaya, PW-3, paternal aunt and PW-4 Himmatrao, brother of deceased Chhaya does not repose confidence in the prosecution story, particularly in regard to the charge of cruelty and abetment of suicide. There are non specific and vague statement in the evidence alleging cruelty, keeping of concubine by appellant-accused, which has resulted into suicide by the deceased. In ::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 19:41:36 ::: 205.02crapl (9) addition, it is to be noted that cause of death of Chhaya is due to cardio-respiratory arrest because of hanging. There are no external injuries noticed on the body of deceased Chhaya. The allegations of concubine are also non specific as neither concubine is named nor any specific instance of the act attributed against the accused qua his behaviour so as to move away deceased Chhaya from his family could be noticed. In fact, PW-1 and PW-2 are non specific about date of marriage of deceased. However, having regard to the fact that couple was blessed with three children, spending togetherness for last more than 15 years, in my opinion, is the act which is required to be taken note of.
13. In view thereof, judgment of conviction delivered by learned Adhoc Additional Sessions Judge, Yavatmal, in Sessions Trial No. 149 of 1996, on 12th March, 2002 is hereby quashed and set aside. It is ordered that the appellant is acquitted of the offence punishable under Sections 498-A and 306 of the Indian Penal Code. He be set ::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 19:41:36 ::: 205.02crapl (10) forthwith, by cancelling his bail bonds, if not required in any offence. Fine amount, if any, be refunded back to the appellant-accused.
14. Criminal Appeal stands allowed in above terms.
(N.W. SAMBRE, J.) Tupe ::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 19:41:36 :::