apeal582of02.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.582 OF 2002
1 Mahesh s/o. Laxman Gondane,
aged 27 years,
2 Vishnu s/o. Laxman Gondane,
aged 18 years,
3 Lokesh @ Lavkush s/o. Ganpat Dongre,
aged about 39 years,
4 Sau. Sarla w/o. Bandu Dongre,
aged 24 years,
5 Sau. Geeta W/o. Lokesh @ Lavkush Dongre,
aged 32 years,
6 Bandu s/o. Ganpat Dongre,
aged 44 years,
All residents of Chandramani Nagar,
Nagpur ...APPELLANTS
...V E R S U S...
The State of Maharashtra,
Through Police Station Officer
Kamptee, Nagpur ...RESPONDENT
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Ms. F.N. Haidri, Advocate h/f. Mr. R.M. Daga, counsel for the
Appellants.
Mrs. M.H. Deshmukh, Additional Public Prosecutor for the
Respondent /State.
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apeal582of02.odt 2
CORAM:
ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
:01.09.2017
DATE OF PRONOUNCING THE JUDGMENT
:14.11.2017
JUDGMENT:
Exception is taken to judgment and order dated 30.9.2002 in Sessions Trial 117 of 2002 delivered by 3 rd Adhoc Additional Sessions Judge, Nagpur, by and under which, while acquitting the appellants (hereinafter referred to as "the accused) of offence punishable under section 304-A and 306 read with section 34 of the Indian Penal Code ("IPC" for short), the learned Sessions Judge has convicted the accused of offence punishable under section 498-A of IPC and has sentenced the accused to suffer rigorous imprisonment for a period of 3 years and to payment of fine of Rs. 2000/- each.
2 Heard Smt. Haidri holding for Shri. R.M. Daga, the learned counsel for the appellants and Smt. M.H. Deshmukh, the learned Additional Public Prosecutor for the respondent / State. 3 The prosecution case as is unfolded during the course of trial is thus:
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The deceased Trishala who concededly committed suicide on 4.9.2001, entered into matrimonial alliance with accused 1 Mahesh seven years or thereabout prior to her unfortunate death. 4 Accused 2 - Vishnu is the younger brother of accused 1 - Mahesh, accused 3 - Lokesh and accused 6 - Bandu are the maternal uncles of Mahesh, accused 4 - Sarla and accused 5 Geeta are the wifes of accused Bandu and accused Lokesh, respectively. 5 Complainant Jaibhim is the father of the deceased Trishala. Jaibhim and the accused are neighbours. The marriage between Trishala and Mahesh was not an arranged marriage and was not taken kindly by the family of the deceased Trishala. The families of the deceased Trishala and Mahesh were not on talking terms.
6 Jaibhim was unhappy with the marriage. However, after Trishala and Mahesh were blessed with daughter Sanjana, the situation improved and Trishala started visiting the house of Jaibhim.
7 PW 1 - Anita, is the second wife of complainant ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 02:04:25 ::: apeal582of02.odt 4 Jaibhim. The case of the prosecution as is unfolded through the evidence of PW 1 - Anita, PW 3 - Jaibhim and his son PW 2 - Trinayan, is that during visits to Jaibhim's residence, Trishala used to disclose, that she was subjected to harassment by the accused, the accused did not behave properly, demanded money, assaulted and taunted Trishala. Trishala once inflicted injury to her hand with blade, is the case of the prosecution. Prior to the incident, on 3.9.2001, all the accused had a serious altercation with Trishala and Anita whom the accused assaulted. Anita was admitted to Mayo Hospital for treatment and on the next day on 4.9.2001 Trishala committed suicide.
8 Accused 2 - Vishnu reported the incident to the police. Inquiry under section 174 of the Code of Criminal Procedure was initiated. Spot panchanama was recorded on 5.9.2001. The dead body of Trishala was referred to autopsy, post mortem report was received.
9 On 13.9.2001, Jaibhim lodged report alleging that Trishala was forced to commit suicide in view of the cruelty to which she was subjected and on the basis of the said report offence punishable under sections 498-A, 304-B and 306 read with ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 02:04:25 ::: apeal582of02.odt 5 section 34 of the IPC was registered.
10 The statements of witnesses were recorded, completion of investigation led to submission of charge-sheet in the Court of Judicial Magistrate First Class who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge vide Exh. 4, the accused abjured guilt and claimed to be tried. The defence of the accused, as is discernible from the trend of the cross-examination and the statement recorded under section 313 of the Code of Criminal Procedure, is of total denial. The defence is that Trishala felt humiliated since her father Jaibhim married PW 1 Anita at a late stage of life. It is also suggested in defence that Jaibhim was insisting that Trishala avail financial assistance, which she was not inclined to do. 11 Anita Borkar, who claims to be the second wife of Jaibhim is examined as PW 1. She is the step-mother of the deceased Trishala. PW 1 Anita married Jaibhim, 4 to 5 months after the solemnization of marriage between deceased Trishala and accused Mahesh.
Anita states that Trishala used to disclose that she was harassed by the family members of accused Mahesh. Trishala used ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 02:04:25 ::: apeal582of02.odt 6 to disclose that the family members of Mahesh did not behave properly and that she was subjected to taunts insinuating that nothing was given to her by her parents on the occasion of marriage.
12 PW 1 Anita then states that accused 2 to 5 came to her house, abused and threatened her and assaulted her.
The witness, however, states that Trishala did not disclose about harassment for fulfillment of demand of Rs. 20,000/- or sewing machine and sofa-set. It is brought out in the cross-examination of PW 1 that the statement that Trishala was harassed since she was talking to Anita and the statement that witness Anita became unconscious because of assault, is an omission.
PW 2 - Trinayan is the brother of Trishala who states that Trishala disclosed that her family members require money and that her husband is not behaving properly. He has deposed that on 3.9.2001 a quarrel took place between Trishala and her family members. He has further deposed that Mahesh was beating Trishala in his presence. He then states that at 8 pm in the evening, Mahesh and Lokesh quarreled with the younger brother of the witness and the step-mother PW 1 Anita who became ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 02:04:25 ::: apeal582of02.odt 7 unconscious. In the cross examination, it is brought on record that the statement that accused Mahesh was beating Trishala, is an omission. The statement that Trishala came to her parental home and disclosed that she was harassed, is again an omission. The statement that the step-mother was beaten by Lokesh and she was unconscious, is an omission. The witness admits that due to the litigation between Jaibhim and the first wife Pushpakala, the deceased Vishakha was always worried. The witness admits that marriage between his father Jaibhim and mother Pushpakala was not dissolved in accordance with law.
The complainant Jaibhim is examined as PW 3. PW 3 Jaibhim states that the accused started harassing Trishala since dowry was not given in the marriage. Trishala visited Jaibhim's house on the occasion of Rakhi festival and disclosed that the accused are harassing her and that she apprehends danger to life. Jaibhim further states that Trishala inflicted cut on her hand with blade. Jaibhim has deposed that on 03-9-2001 PW 1 Anita was assaulted by accused Vishnu, Bandu and Lokesh who came to the house of the witness. Due to assault, PW 1 Anita fell unconscious and next morning was taken to Mayo Hospital. In the night of 03-9-2001 accused Bandu, Lokesh and Vishnu threatened that Trishala will not live. In the cross-examination, Jaibhim is not in a ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 02:04:25 ::: apeal582of02.odt 8 position to offer any explanation for the delayed report. It is brought on record that significant statements in the examination- in-chief are omissions. Jaibhim admits that his marriage with Pushpakala, the mother of Trishala, is not dissolved in accordance with law and that maintenance proceedings instituted by Pushpakala are pending. Jaibhim denies the suggestion that Trishala fell humiliated due to Jaibhim's marriage with Anita, who is much younger than Jaibhim. He also denies the suggestion that he was insisting that Trishala avail financial assistance which accused Mahesh did not approve of.
Sukeshani, the sister of the deceased Trishala is examined as PW 4. Her version is that Trishala used to disclose that her husband and the maternal uncles of the husband were not behaving properly and that an amount of Rs.20,000/- was demanded from her.
Ranjitsingh Chouhan, the investigating officer, is examined as PW 6. The investigating officer admits that he recorded the statements of the witnesses in the accidental death enquiry, between 05-9-2001 and 12-9-2001. He, however, denies the suggestion that the statements are not filed alongwith charge- sheet since they do not support the prosecution. The omissions, which are brought out in the cross-examination for the ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 02:04:25 ::: apeal582of02.odt 9 prosecution witnesses, have not been proved through the investigating officer, which is strange, to say the least.
13. Ms. F.N. Haidri, learned Counsel for the accused submits that the evidence on record is suggestive of false implication. The unexplained delay in lodging the first information report, renders the prosecution case suspect, is the submission. I am inclined to accept the submission of the learned Counsel for the accused that the delay in lodging the first information report is not explained, muchless satisfactorily. Trishala committed suicide on 04-9-2000 and the first information report was lodged only on 13-9-2000. The statements of witnesses which are produced alongwith the charge-sheet are recorded only thereafter. Although the investigating officer admits to have recorded the statements of witnesses in the accidental death enquiry, those statements are not produced on record. Concededly, an incident involving PW 1 Anita and accused Bandu, Lokesh and Vishnu occurred on 03-9-2000. The prosecution witnesses are in unison stating that P.W.1 was assaulted and she fell unconscious. In my opinion, the possibility of false implication or over implication of the accused is a real possibility. It is obvious from the evidence that the relationship between the family of the ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 02:04:25 ::: apeal582of02.odt 10 deceased on one hand and accused Mahesh and his family members on the other was strained, in view of the love marriage between Trishala and accused Mahesh. The altercation between P.W.1 Anita and some of the accused, which incident is, however, blurred, to which the prosecution witnesses have testified may have motivated the prosecution witnesses to falsely implicate the accused, is a possiblity which cannot be excluded.
14. The evidence on record is grossly insufficient to record a finding that the deceased Trishala was subjected to cruelty within the meaning of Explanation (a) or (b) of Section 498-A of the Indian Penal Code. The evidence is absolutely vague and inconsistent. Illustratively, PW 1 Anita vaguely states that Trishala used to disclose that she was harassed and that the family members of her husband Mahesh did not behave properly. PW 1 Anita, however, states that Trishala did not disclose anything about harassment to coerce her to fulfill demand of Rs.20,000/- or sewing machine of sofa-set.
PW 2 Trinayan again vaguely states that the disclosure was that the family members of Trishala needed money and that her husband did not behave properly. The solitary statement in the evidence of Trinayan that Mahesh was beating ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 02:04:25 ::: apeal582of02.odt 11 Trishala in his presence, must be discarded as untrustworthy since it is not the case of any other family member that Trishala was physically assaulted by her husband Mahesh. Be it noted, that although in the cross-examination of Trinayan, it is brought on record that the statement that accused beat Trishala, is an omission, the omission is not proved in the cross-examination of the investigating officer. Similarly, every significant statement in Trinayan's evidence is brought on record as omission, but then the omission is not proved. The evidence of PW 3 Jaibhim is again not reliable and confidence inspiring. He generally states that his daughter Trishala was harassed because, in view of the love marriage, dowry was not given. The version that Trishala apprehended danger to life or that Trishala inflicted injury on her hand due to harassment, is not supported by the testimony of any other witness. The evidence of PW 4 Sukeshani that according to Trishala she was demanded Rs.20,000/- must be discarded as untrustworthy. The said evidence is inconsistent with that of PW 1 Anita. Neither the brother (P.W.2) nor the father (P.W.3) have testified as to the demand for Rs.20,000/-. The evidence on record is marred by inter se discrepancies and is vague, sketchy and bereft of particulars. I am not inclined to permit the conviction to rest on the basis of the evidence on record. To my ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 02:04:25 ::: apeal582of02.odt 12 mind, the strained relationship, the incident of assault involving PW 1 Anita and some of the accused, an unexplained delay in lodging the first information report, the inter se inconsistencies in the evidence, the sketchy and vague allegations, cumulatively would suggest false or over implication and the benefit of the doubt must necessarily go to the accused.
15. The impugned judgment and order dated 30-9-2002 in Sessions Trial 117/2002 delivered by the learned 3 rd Ad hoc Additional Sessions Judge, Nagpur is set aside. The accused are acquitted of the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code. The bail bonds of the accused shall stand discharged. The fine paid by the accused, if any, be refunded to them.
JUDGE belkhede/adgokar ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 02:04:25 :::