Shri Sambhaji S/O Motiram Dharle vs The State Of Maharashtra, ...
2003 Latest Caselaw 515 Bom

JUDGMENT

P.B. Gaikwad, J.

1. Original complainant - Sambhaji Motiram Dharle, resident of Nanded, being dissatisfied with the order passed by the Additional Sessions Judge, Nanded dated 23/12/1993 in Sessions Case No. 62/1993, acquitting the accused- present Respondents for the offence under Sections 498-A and 306 of Indian Penal Code, filed present petition.

2. The facts, in brief, leading to the present petition are that; Deceased Wanita was daughter of Complainant Sambhaji -present petitioner and her marriage was performed with the accused No. 1 i.e. Ganpati Vitthal Bhagat on 19/5/1992. It is further case of the prosecution that, after the marriage of Wanita with Accused No. 1 she started residing with the accused, however, there was ill-treatment to her as accused were demanding Rs. 5000/-. It is further alleged that the accused No. 2 who is mother of the accused No. 1, also ill-treated deceased on account of unlawful demand. They used to kept Wanita without food. During the visit of Wanita at her parents house she used to disclose about the ill-treatment to her at the hands of accused. It is further claimed that, when Wanita was residing with accused, the Complainant had been to the house of accused to take Wanita for Diwali festival, however, accused refused to sent Wanita to her parents house. It is claimed that, in the month of December, i.e. on 8/12/1992 Wanita committed suicide by consuming poison. The complainant then made report to the police, on the basis of which crime No. 148/1992 was registered for the offence under Sections 498-A and 306 of Indian Penal Code. During the course of investigation police visited the place, prepared spot panchanama held inquest over the dead body, recorded statements of certain witnesses and after completing investigation submitted charge sheet before the Judicial Magistrate (First Class) Bhokar on 29/1/1993.

3. The Judicial Magistrate (First Class) Bhokar passed order dated 18/2/1993 and committed case to the court of Sessions as offence being exclusively triable by the Court of Session. The Additional Sessions Judge, Nanded on 27/8/1993 framed charge against the accused for the offence under Sections 498-A, 306 read with 34 of Indian Penal Code. Accused pleaded not guilty to the charge and claimed to be tried.

4. The prosecution, to connect accused with the said crime examined P.W.1 Dr. Balaji Manoorkar, medical officer, who performed postmortem over the dead body of Wanita w/o Ganpati. The postmortem report is at Exh. 14. On internal examination he noticed congestion in brain, lung, stomach contents kerosene like smell, other organs i.e. liver, spleen, kidney found congested. Doctor has given opinion as regards cause of death as "asphyxia due to organo compound poisoning". P.W.2 is Complainant Shambhaji Dharle father of the deceased. His evidence is at Exh. 19. P.W.3 is Meerabai- mother of the deceased. P.W.4 is neighbour namely Kesharbai Banshode. P.W.5 is Vitthalrao More, a panch witness as regards one notebook. P.W.6 is Maheboob Ismile Shaikh, head constable who investigated said crime. P.W.7 is Kevalbai a neighbour residing adjacent to the house of accused. The Additional Sessions Judge after considering evidence on record acquitted accused for both the offences under Sections 498-A and 306 read with Section 34 of Indian Penal Code. Said order is being challenged by original Complainant by filing present petition.

5. In the petition, I heard Mrs. Chincholkar Advocate for Complainant and Shri P.V. Mandlik advocate for original accused- present respondents No. 2 and 3, and P.B. Patil, A.P.P. for State at length. It is submitted by Mrs. Chincholkar advocate for the petitioner that the order passed by the Additional Sessions Judge acquitting the accused is not proper. According to her in the present case evidence of Dr. P.W. No. 1 sufficiently makes it clear that Wanita met suicidal death. The evidence of P.W. 2,3, & 7 also sufficiently makes it clear that there was ill-treatment at the hands of accused to Wanita and, therefore the court below ought to have concluded that the accused abeted the commission of suicide by Wanita, however, wrongly discarded said evidence. Secondly, so far as regards offence under Section 498-A is concerned she further submits that the evidence of neighbour P.W.7, evidence of father, mother and one another relative of deceased - Wanita is satisfactory, convincing, but the court below wrongly discarded their evidence only because they are close relatives of the deceased, as in fact according to her Wanita is expected to disclose in respect of ill-treatment only to the relatives i.e. father, mother. However, this particular aspect has not been considered by the Court below. According to her, marriage was performed in the month of May, 1992, she died in the month of December 1992 i.e. within 7 months and when in the present case prosecution has succeeded in proving that Wanita met suicidal death and secondly there was ill-treatment to her, the presumption under Section 113-A is available to the prosecution. She therefore, requested to allow the petition and to set aside the order of acquittal.

6. On the other hand it is submitted by Shri Mandlik Advocate for the original accused that, the order of acquittal for both the offences is proper. Firstly, according to him, though prosecution has succeeded in proving that Wanita met suicidal death still the evidence on record is not satisfactory so as to conclude that accused abeted commission of suicide. For abetment of suicide it is necessary that there must some instigation by the accused or that they themselves have engaged in some act or that they have added something for the commission of said suicide. However, in the present case practically there is no evidence so as to conclude that the accused abeted commission of suicide by Wanita and court below has rightly considered this aspect. So far as regards offence under Section 498-A is concerned, according to him, in the present case the act on the part of present Respondents original accused does not fall under clause (a) or (b) of Section 498-A of I.P.C. Even, evidence on record is not satisfactory so as to conclude safely that there was ill-treatment or harassment on account of unlawful demand and thus, according to him, the order of acquittal is proper.

7. Considering the submissions made on behalf of parties to the petition it is necessary to see whether the order of acquittal is proper and justified. Firstly, in this respect a reference is necessary to the evidence on record, more particularly, that of Dr. Balaji Manoorkar P.W. 1 and from his evidence it is sufficiently clear that Wanita died on account of consuming poison and, therefore, it can be inferred legitimately that the prosecution succeeded in proving that Wanita met suicidal death. The evidence of Dr. if read together with Exh. 14 postmortem report, is satisfactory.

8. Another aspect is whether accused have abeted commission of suicide and on close scrutiny of evidence on record I find that, the court below is definitely justified in concluding that the prosecution failed to prove that the accused abeted commission of suicide by Wanita. It is further seen on close scrutiny of evidence of P.W. 2,3 & 7 that there is no evidence that the accused has in any way instigated, engaged themselve or there was any intentional aid on their part and, therefore the court below is definitely justified in concluding that the prosecution failed to prove that the accused committed any offence either under Section 306 or 498-A of Indian Penal Code. I further find that, the said order is proper and reasonable. Even on perusal of order passed by the Additional Sessions Judge it is further seen that, he has given proper reasoning at length and I do not find any infirmity in the said conclusion. Evidence of above witnesses, so far as offence under Section 498-A is again vague, not satisfactory and convincing. Even said evidence is not acceptable. And the court below has rightly discarded said evidence on the ground that it does not create confidence.

9. The State has not challenged the order of acquittal, however, by filing present revision Complainant challenged said order. The scope of revision is restricted in view of bar under Section 401(3) of the Criminal Procedure Code. Considering material on record , even there is no scope to remand the matter as finding of acquittal recorded by the court below is proper and justified, and I do not find any perversity in the said conclusion. Revision is without merit.

10. In the result revision petition is dismissed. Record and proceeding be sent to the lower court.