Bombay High Court
Age. 26 Yrs. vs The State Of Maharashtra on 18 October, 2012
Bench: V.M. Kanade, P. D. Kode
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nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 643 OF 2006
WITH
CRIMINAL APPLICATION NO. 626 OF 2012
Sachin Nagnath Satpute
Age. 26 yrs., Occ. : Agri.
R.o. : Patkul, Taluka Mohol,
District - Solapur ...Appellant
(At present at Central Jail, Solapur) (Orig.Accused no.1)
Vs.
The State of Maharashtra
(Notice to be served upon A.P.P.
High Court, Appellate Side, Bombay) ...Respondent
WITH
CRIMINAL APPEAL NO. 644 OF 2006
1) Nagnath Gajendra Satpute
Age : 51 yrs., Occ. : Nil.
R.o. : Patkul, Taluka Mohol,
District - Solapur
2) Nitin Nagnath Satpute
Age : 25 yrs., Occ. : Nil.
R.o. : Patkul, Taluka Mohol,
District - Solapur
3) Nagarbai Nagnath Satpute
Age : 36 yrs., Occ. : Household
R.o. : Patkul, Taluka Mohol, ...Appellants
District - Solapur (Orig.Accused no. 2 to 4)
Vs.
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The State of Maharashtra
(Notice to be served upon A.P.P.
High Court, Appellate Side, Bombay) ...Respondent
********
Mr. D.G. Khamkar, for the Appellants.
Mr. J.P. Yagnik, APP for the State.
********
CORAM: V.M. KANADE &
P.D KODE, JJ.
JUDGMENT RESERVED ON : 14.08.2012
JUDGMENT PRONOUNCED ON : 18.10.2012
JUDGMENT (PER. V.M. KANADE,J.)
1. Heard, Mr. D.G. Khamkar, Learned Counsel for the
Appellant and Mr. J.P. Yagnik, Learned APP for the State.
2. The Appellant is aggrieved by the Judgment and Order
passed by the Session Court who was pleased to convict
the appellant for the offence punishable under Section 302
of the Indian Penal Code.
3. The prosecution case in brief is that the accused got
married to Vaishali on 15th July, 2002 and one daughter
was born out of the said marriage. The prosecution case is
that the accused started demanding Rs. 50,000/- from his
wife for installing water pipeline in the land. It is alleged
that the appellant used to quarrel with the wife on account
of non-payment of the said amount and used to assault
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her. The prosecution case is that on 10th February, 2005,
Vaishali committed suicide by pouring kerosene on her
person and setting herself on fire. Initially case of
accidental death was registered vide A.D. no. 11 of 2005.
Thereafter the mother of the deceased-Vaishali lodged a
complaint for the offence punishable under Sections 498-A
306 r/w 34 of the Indian Penal Code. The charge-sheet
was accordingly filed after investigation was completed
and the case was committed to the Court of Sessions.
Charge for the offence punishable under Section 498A,
306 r/w 34 of the Indian Penal Code were framed.
4.
Initially the prosecution examined the relatives of the
deceased who stated in the evidence that the deceased
committed suicide on account of harassment by the
accused. The prosecution thereafter examined Dr.
Santosh Nagnath Bhadakwad (PW.5). The said witness
had performed the postmortem. The cause of death was
reserved after the postmortem was performed by the
Doctor. When his evidence was recorded in the court, he
gave an opinion that the death of the deceased was
caused due to asphyxia due to smothering. He further
stated in his evidence that injury 17(a) was possible by
keeping pillow on face and pushing it by hands. He further
stated that if the patient is alive and then set on fire then
smoke particles are noticed in nostrial, trachea and also in
the stomach. However, no such smoke particles were
noticed and therefore he gave an opinion that the case
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was of homicidal death. After the evidence of Doctor was
recorded the trial court modified the charge and added the
offence punishable under Section 302 r/w. 34 of the Indian
Penal Code and Section 201 and an alternate charge under
Section 306 of the Indian Penal Code r/w. 34 of the Indian
Penal Code was also added.
5. Learned Counsel appearing on behalf of the appellant
submitted that firstly after the charge was modified,
opportunity should have been given to the Investigating
Officer to further investigate the case. However, without
giving any such opportunity the trial court was pleased to
alter the said charge. He further submitted that once a
charge under Section 302 was framed an alternate charge
of abatement to commit suicide under Section 306 could
not have been framed by the trial court. He submitted
that the relatives of the deceased, PW.1, PW.2 and PW.3
had deposed that the deceased had committed suicide
and did not make any allegation that the accused had
committed murder of his wife. It is submitted that the trial
court erred in convicting the appellant only on the basis of
the evidence of the Doctor who has given an opinion that
the death of deceased-Vaishali was homicidal. It is
submitted that in order to establish the charge of murder
there was no evidence led by the prosecution.
6. Learned APP appearing on behalf of the State on the other
hand supported the Judgment and Order passed by the
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trial court and submitted that the trial court had correctly
assessed the evidence and had convicted the accused for
the offence punishable under Section 302 r/w. 34 of the
Indian Penal Code.
7. After having heard both the counsel at length, we are of
the view that the prosecution has completely failed to
establish the evidence against the accused beyond
reasonable doubt. In the first place after the postmortem
was performed and the Doctor reserved the cause of the
death, it was the duty of the investigating officer to have
first obtained the opinion of the Doctor and then to have
completed the investigation. The investigating officer
proceeded to investigate the case without obtaining the
opinion of the Doctor regarding the cause of the death and
as such entire evidence which was collected shows that
the witness deposed that the deceased had committed
suicide. The trial court thereafter on its own altered the
charge after the evidence of the Doctor was recorded. The
prosecution has not adduced any evidence to show that
the appellant was present when the incident took place.
One of the neighbour had seen the deceased after she was
set on fire, however, the said neighbour was not
examined. He could have thrown light on number of facts
more particularly about the presence of the accused in the
house either before the incident or after the incident in
question took place.
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8. The trial court convicted the appellant though there was
no direct or circumstantial evidence to establish the guilt
of the accused. In our view the Sessions Court should
have permitted the investigating officer to carry out
further investigation. The learned Sessions Judge ought
to have asked the Investigating Officer whether he would
like to make further investigation. Instead of doing that
the trial court proceeded with the trial and as a result no
other witness could be examined by the prosecution to
establish that the accused has committed the said
offence. PW.3, Meera Ankush Gadekar in her evidence
had only stated that she suspected that the accused must
have murdered her daughter. It is not possible to convict
the accused only on the basis of the suspicion. In the
result we have no other option but to acquit the accused
by giving them benefit of doubt.
9. Taking into consideration the evidence of PW.1, PW.2 and
PW.3 in our view the trial court has rightly convicted the
appellant for the offence punishable under Section 498-A
r/w 34 of the Indian Penal Code. PW.1, PW.2 and PW.3
have established that the appellant used to harass and ill
treat her and used to assault her physically and also cause
mental cruelty on account of non-payment of Rs. 50,000/-
demanded by him. These three witnesses have
corroborated each others testimony in respect of demand
of dowry by the appellant. The prosecution therefore in
our view has proved this fact beyond reasonable doubt.
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10. The trial court has also erred in framing alternate charge
of 306 after the charge of murder was framed. Such an
alternate inconsistent charge could not have been framed
by the trial court.
11. The accused no. 1 is acquitted of the offence punishable
under Section 302 and 201 of the Indian Penal Code.
12. The appellants are however convicted for the offence
punishable under Section 498-A r/w 34 of the Indian Penal
Code. The accused no. 1, is sentenced to suffer R.I for
three years. The accused nos. 2 and 4 are sentenced to
suffer R.I for 42 days and accused no. 3 is sentenced to
suffer R.I for 50 days and they are directed to pay fine of
Rs. 500/- each and in default to suffer R.I for three months.
The appellant nos. 2, 3 and 4 were on bail, there bail
bonds are cancelled. The accused no. 1 be released
forthwith, if he has already undergone the sentence,
unless he is required in any other case.
13. Both the appeals are accordingly partly allowed and
disposed of. Criminal Application does not survive and is
accordingly disposed of.
(P.D.KODE J.) (V.M. KANADE J.)
