apeal.328.03.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.328 OF 2003
Vidyadhar s/o Manikrao Nandurkar,
aged about 26 years,
R/o Hinganghat, Tahsil Hinganghat,
District Wardha. .... Appellant
-- Versus -
The State of Maharashtra,
through P.S.O. Hinganghat,
District Wardha. .... Respondent
Shri R.M. Daga, Advocate for the Appellant.
Shri N.H. Joshi, A.P.P. for the Respondent/State.
CORAM : KUM. INDIRA JAIN, J.
DATE : OCTOBER 4, 2017. ORAL JUDGMENT :-
This appeal is directed against the judgment and order dated 02/05/2003 passed by the learned 1st Ad hoc Additional Sessions Judge, Wardha in Session Trial No.63/2002 thereby convicting the accused of the offence punishable under Sections 498-A of the Indian Penal Code ('IPC' for short) and sentencing him to suffer rigorous imprisonment for one year with ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:39:45 ::: apeal.328.03.jud 2 fine of Rs.500/- in default, rigorous imprisonment for 30 days. Accused was, however, acquitted of the offence punishable under Section 306 of IPC.
02] For the sake of convenience, appellant shall be referred in his original status as accused as he was referred before the trial Court.
03] The facts giving rise to the appeal may be stated in brief as under :
i. Nana s/o Domaji Magar, a retired teacher, was resident of Kori within the jurisdiction of Samudrapur Police Station, District Wardha. Vaishali was his daughter. She was married to accused on 16/05/1994. The couple was blessed with a male child Kunal and a female child Shiwani.
ii. According to prosecution, accused used to consume liquor and beat Vaishali. He was raising quarrel and insisting his wife to bring money from her parents. In ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:39:45 ::: apeal.328.03.jud 3 February, 2000, quarrel took place between accused and Vaishali. As Vaishali was tired with the behaviour of accused, she had been to railway track to commit suicide. She could be anyhow saved and brought to her father's house. During her stay at her maternal house, she disclosed to her brother, sister-in-law, father and mother about ill-treatment at the hands of accused.
iii. On 08/05/2000, accused along with his friends visited the house of parents of Vaishali. That time, he threatened that in case she would not accompany him, she would never be allowed to enter the house. Vaishali then resumed the company of her husband and went to her matrimonial house.
iv. On 07/10/2001, at around 11:00 a.m., an information was received by her parents that Vaishali died. Death was reported to Police Station Hinganghat. A.D. No. 92/2001 came to be registered and inquiry was made under Section 174 of the Code of Criminal Procedure. ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:39:45 ::: apeal.328.03.jud 4 PW-5 PSI Arjun Raut recorded statement of the witnesses. Head Constable Badge reached the place of occurrence and recorded inquest-panchnama. Spot-panchnama was drawn at the same time. From the spot, a container of kerosene oil, lock, pieces of saree, vessel were seized. Dead body was sent for postmortem to Cottage Hospital, Hinganghat. Dr. M. Shrivastava performed postmortem. After performing postmortem, Medical Officer opined probable cause of death as 'Cardiorespiratory arrest due to asphyxia caused by burns'. It was also found that deceased sustained 100% burns.
v. It appears that on completion of inquiry, PW-5 PSI Arjun Raut lodged report on 01/11/2001. On the basis of the said report, Crime No.296/2001 came to be registered against the accused for the offences punishable under Sections 498-A and 306 of IPC. During investigation, statements of witnesses came to be recorded. Seized articles were sent to Chemical Analyzer for examination. After completion of ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:39:45 ::: apeal.328.03.jud 5 investigation, charge-sheet came to be filed before the learned Magistrate, who in turn committed the case for trial to the Court of Sessions. vi. On committal, Sessions Court framed charge against the accused vide Exh.11. Accused pleaded not guilty and claimed to be tried. The factum of marriage is not in dispute. Regarding alleged ill-treatment and cruelty, defence of accused was of total denied and false implication.
vii. In order to substantiate the guilt of accused, prosecution examined in all five witnesses. In addition to oral evidence, reliance came to be placed on several documents. Considering the oral and documentary evidence, trial Court came to the conclusion that offence under Section 306 of IPC has not been established against the accused. However, regarding offence under Section 498-A, trial Court found that accused being husband, subjected Vaishali to cruelty and liable for punishment under Section 498-A of IPC. In consequence thereof, accused came ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:39:45 ::: apeal.328.03.jud 6 to be sentenced for the offence under Section 498-A of IPC as stated hereinabove. Being aggrieved with the order of conviction, accused has preferred this appeal.
04] Heard Shri R.M. Daga, learned Counsel for appellant and Shri N.H. Joshi, learned Additional Public Prosecutor for the State. With the assistance of the learned Counsel for the parties, this Court has perused the impugned judgment and order, evidence of prosecution witnesses and documents on which reliance has been placed. On meticulous evaluation of the evidence, this Court for the below mentioned reasons finds that prosecution could not prove the guilt of accused beyond reasonable doubt for the offence punishable under Section 498-A of IPC.
05] It is not in dispute that marriage took place on 16/05/1994 and alleged incident occurred on 07/10/2001 i.e. after seven years of marriage. It is also not in dispute that for the initial 2-3 years, matrimonial life of Vaishali and accused was smooth. It is an admitted fact that couple was blessed with a son and a daughter.
::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:39:45 ::: apeal.328.03.jud 7 06] In order to prove the alleged guilt, prosecution examined PW-1 Nana Magar, father of the victim, PW-2 Pandurang Magar, her brother and PW-3 Archana Magar, sister- in-law of Vaishali and wife of PW-2. According to PW-1 Nana, Vaishali used to visit her maternal place and she disclosed that her husband was beating her on account of household affairs. She also disclosed that he was insisting her to bring money from her parents. It is stated by Nana that in February, 2000, his son brought Vaishali to his place. After about 8-15 days, accused came to his house and raised quarrel. That time, he met Vaishali. It is further stated by PW-1 Nana that Vaishali stayed at his house till May, 2000. Thereafter, accused came with his friends and took Vaishali back. According to Nana, on 07/10/2001, two persons came on motorcycle and informed that Vaishali was caught by fire. They immediately rushed to the house and found Vaishali dead.
07] The evidence of PW-2 Pandurang Magar and PW-3 Archana Magar is on the same line. They have also stated that whenever Vaishali was visiting their house, she disclosed that she was beaten by her husband and he was insisting her to bring money from her parents.
::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:39:45 ::: apeal.328.03.jud 8 08] From the facts elicited in cross-examination of these three important witnesses, it can be seen that their statements were recorded after a considerable time. Incident took place on 07/10/2001 and as indicated above, a report came to be lodged on 01/11/2001 i.e. after 24 days by PSI Raut. None from the family members complained till that time about the alleged ill- treatment and cruelty to Vaishali at the hands of accused. Investigating Officer has not assigned any reason and did not explain the belated recording of statements of witnesses. Inordinate unexplained delay in recording statements of PW-1, PW-2 and PW-3 would adversely affect the substratum of prosecution case.
09] Another significant factor to be noted in the present case is that evidence of these three witnesses is vague and omnibus statement has been made by them that Vailshali was ill- treated on account of demand of money. No specific instances have been quoted. From the evidence of PW-1 Nana PW-2 Pandurang, it can be seen that they were not aware about the happening between May, 2000 till 07/10/2001. So far as PW-3 Archana is concerned, she admits that matrimonial life of ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:39:45 ::: apeal.328.03.jud 9 Vaishali was smooth and they did not hear anything from her in the span of 1½ years. This clearly indicates that Vaishali was not subjected to harassment as alleged by the witnesses. Had it been so, natural conduct on their part would have been to rush to the Police Station and lodge report immediately. As evidence of father, brother and sister-in-law is vague and does not give specific instances of alleged demand of money, it would not be enough to prove the charge under Section 498-A of IPC. 10] It is significant to note that all the three witnesses have categorically admitted that once Vaishali had been to railway track to commit suicide and it was because of immediate step taken by accused that her life could be saved as he rushed to the spot and brought her back. This clearly states that Vaishali was of hot temperament. It is also to be noted that from marriage till the report was lodged by PSI Raut, no one had complained that Vaishali was ill-treated by accused on demand of money. All these facts together would show innocence on the part of accused and would disprove the case of prosecution regarding alleged harassment and cruelty to Vaishali at the hands of accused.
::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:39:45 ::: apeal.328.03.jud 10 11] In the light of the above, this Court on careful scrutiny of evidence finds that offence under Section 498-A of IPC has not been proved by the prosecution beyond reasonable doubt. In the result, judgment and order of conviction and sentence is unsustainable in law. Hence, the following order :
ORDER I. Criminal Appeal No.328/2003 is allowed. II. Impugned judgment and order dated 02/05/2003 passed by the learned 1st Ad hoc Additional Sessions Judge, Wardha in Session Trial No.63/2002 is quashed and set aside.
III. Appellant-accused Vidyadhar Manikrao Nandurkar is acquitted of the offence punishable under Section 498-A of IPC.
IV. His bail bonds shall stand cancelled forthwith.
*sdw (Kum. Indira Jain, J)
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