Bombay High Court

Sahebrao vs State Of Maharashtra on 28 September, 2012

Bench: T.V. Nalawade

                                               Cri. Revn. Appln. No. 241/08
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                   IN THE HIGH COURT AT BOMBAY
               APPELLATE SIDE, BENCH AT AURANGABAD




                                                 
          CRIMINAL REVISION APPLICATION NO. 241 OF 2008


           Sahebrao s/o. Dattu Mahajan,
           Age 53 years, Occu. Agri.,




                                                
           R/o. Sawkheda Khurd, Taluka Raver,
           District Jalgaon.                            ....Petitioner.
                                                  (Ori. Complainant).




                                    
                 Versus
                      
     1.    State of Maharashtra
                     
     2.    Haribhau Kashiram Mahajan,
           Age 54 years, Occu. Service,

     3.    Pramod @ Bhagwan Haribhau Mahajan,
      

           Age 30 years, Occu. Agriculture,
   



     4.    Vishnu Haribhau Mahajan,
           Age 27 years, Occu. Agriculture,

     5.    Sau. Kamalbai Haribhau Mahajan,
           Age 49 years, Occu. Agriculture,





     6.    Dinkar Shamrao Mahajan,
           Age 50 years, Occu. Service/
           Dy. S.P., CID Crime Amravati.





           All R/o. Vivare Khurd, Tq. Raver,
           Dist. Jalgaon.                                  ....Respondents.



     Mr. R.N. Chavan h/f. Vijay Sharma, Advocate for petitioner.
     Mr. N.B. Patil, APP for respondent No. 1/State.
     Mr. K.C. Sant, Advocate for respondent Nos. 2 to 6.




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                                               Cri. Revn. Appln. No. 241/08
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                             CORAM        :      T. V. NALAWADE, J.
                             DATED        :      28th September, 2012.




                                                
     JUDGMENT :

1. The revision is admitted. By consent, notice after

admission of revision was made returnable forthwith and both the

sides were heard for final disposal of the matter.

2. The proceeding is filed against judgment and order of

Sessions Case No. 153/2004, which was pending in the Court of

Sessions Judge, Jalgaon. In the Trial Court, the present respondent

Nos. 2 and 3 were charged for offence punishable under section

302 r/w. 34 of I.P.C. All the accused, including respondent Nos. 2

and 3 were charged for offences punishable under section 304-B,

498-A and 34 of I.P.C. All the accused are acquitted of these

offences. Original complainant has filed the present proceedings.

Heard the advocate for complainant, advocate for the accused

and the learned A.P.P. The learned A.P.P. supported the original

complainant. The original record is perused by this Court.

3. The deceased Suwarna was niece of the complainant.

The father of the deceased was a real brother of the complainant

and he had died 3-4 years prior to the date of incident. After the

death of the father of the deceased, the mother and brother of

Cri. Revn. Appln. No. 241/08

deceased had started living with the complainant in village

Saverkheda, Tahsil Raver. The deceased was given in marriage to

accused No. 2 about two years prior to the date of incident. The

accused No. 3 is the real brother of accused No. 2. Accused Nos. 1

and 5 are parents of accused No. 2. These accused were living

together in village Vivare, Tahsil Raver, District Jalgaon. Accused

No. 6 is a son of elder brother of accused No. 1 and the house of

accused No. 6 is situated adjacent to the house of accused No. 1.

The deceased had cohabited with the accused No. 2 in the house

where the accused Nos. 1 to 3 and 5 were living together. At the

relevant time, the deceased had a daughter aged about 9

months. Initially Suresh Gaikwad was working as a labourer on

yearly wages basis in the field of accused No. 1 and he was made

accused No. 4, but he came to be discharged. Suresh Gaikwad is

examined as a witness by prosecution.

4. It is contended that the family of accused No. 1 had

purchased agricultural land and due to that the family was in

need of money. It is contended that accused were asking the

deceased to bring Rs. one lac from the complainant as they were

in need of money. It is contended that accused No. 6 was

instigating other accused to make such demand. At the relevant

time, accused No. 6 was working as Dy. Superintendent of Police

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and he was posted in Buldhana district. The wife of the brother of

accused No. 6 had died unnatural death and it is contended that

accused No. 6 used to say that he would manage everything, if

something happens to the deceased, if the demand is not met

with. Allegations are made that deceased was mentally harassed

by the accused. Due to the threats given and the conduct of the

accused, the deceased had become frightened. She had disclosed

about the illtreatment, ig which she was receiving, to the

complainant and other relatives. The last disclosure was made

about one month prior to the date of incident, when the deceased

had visited the house of the complainant. Complainant had then

met accused and he had tried to convince them to behave well.

He had expressed that he was not in a position to meet their

demand.

5. The incident took place on 11.3.2004 after 12.00

noon. On that day, the accused No. 2 had taken the deceased and

his daughter, aged about 9 months, on a motorcycle towards his

agricultural land as he wanted to take them to temple of Lord

Munjoba which is situated towards the side of the agricultural

land. Suresh Gaikwad was present in the field. Accused No. 2

wanted to take his brother, accused No. 3 also to the temple, but

the accused No. 3 had gone to other field. Accused No. 2 left the

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deceased and his daughter in his field and he went to other field

to call accused No. 3. The deceased handed over her daughter to

Suresh Gaikwad and then she sat under a tree situated in their

field. Accused No. 2 returned with accused No. 3 after some time.

It is contended that accused Nos. 2 and 3 virtually lifted the

deceased and they threw her in to a nearby well. This incident

was witnessed by Suresh Gaikwad. It is contended that accused

Nos. 2 and 3 gave threat to Suresh and they warned him not to

disclose the incident to anybody.

6. At about 1.00 to 1.30 p.m. a person from village

Vivare informed to the complainant that Suwarna was missing.

The village of complainant is situated hardly at the distance of 9

k.m. from village Vivare and so he rushed to village Vivare with his

relatives. He reached Vivare village at about 2.00 p.m. Then he

learnt that accused No. 2 had taken the deceased and his

daughter towards field and since then the deceased was missing.

The persons from village Vivare and village Savarkheda, the

village of complainant, searched for Surwana. Ultimately they

found the dead body of Suwarna in the well of Nago Choudhary.

The accused No. 1 was working in a branch of District Bank and

he was immediately called by the persons from village Vivare. He

also searched for Suwarna. When the dead body was found, he

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gave A.D. report to Nimbhora Police Station. At about 6.00 p.m.

A.D. No. 6/2004 was registered on the basis of this report. Police

went to village Vivare and with the help of some persons, they

took out the dead body from the well. The dead body was referred

to Government Hospital for P.M. examination and the P.M. was

conducted on the dead body between 8.00 p.m. and 9.45 p.m.

The doctor, who conducted the P.M. examination on the dead

body, gave opinion that the death took place due to drowning.

7. The complainant gave report to police at about 9.45

a.m. on 12.3.2004. He expressed suspicion against Suresh

Gaikwad also, in addition to the husband and relatives of the

husband. Crime at C.R. No. 13/2004 came to be registered for

offences punishable under sections 304-B, 498-A and 34 o f I.P.C.

Suresh Gaikwad came to be formally arrested on 12.3.2004. Other

accused also came to be arrested.

8. On 16.3.2004, Suresh Gaikwad, original accused No.

4, gave statement to police in presence of panch witnesses. This

statement was recorded as "memorandum" and in the statement

the incident was disclosed by Suresh. On 19.3.2004 the

confessional statement of Suresh was recorded under section 164

of Cr.P.C. Section 302 of I.P.C. was then added to the crime as

Cri. Revn. Appln. No. 241/08

against accused Nos. 2 and 3.

9. During investigation, the spot panchanama came to

be prepared and statements of witnesses came to be recorded.

Chargesheet came to be filed for all the aforesaid offences. In the

Trial Court, the prosecution examined six witnesses. The accused

took the defence of total denial. The Trial Court has acquitted all

the accused by holding that the prosecution failed to prove that it

is a homicidal death. The Trial Court has held that the possibility

that Suwarna accidentally fell in to the well cannot be ruled out.

The Trial Court has not believed Suresh Gaikwad. Other witnesses,

relatives of the deceased are also not believed in respect of the

evidence given on illtreatment.

10. The death took place due to drowning and the

incident took place in the day time. The well is situated in the field

of other farmer. In view of the nature of allegations, the evidence

like spot panchanama, map of scene of offence and the P.M.

report need to be considered along with the evidence of Suresh

Gaikwad. The veracity of Suresh Gaikwad needs to be ascertained

on the basis of this circumstantial evidence and other

circumstances.

Cri. Revn. Appln. No. 241/08

11. In the evidence of one Umakant Mahajan (PW 3), the

spot panchanama is proved as Exh. 76. This evidence shows that

the well is situated in the field of Nago Choudhary. Nago

Choudhary is dead and this land is with his brother and other

relatives, whose names are taken by Suresh Gaikwad. The

evidence shows that the temple of lord Munjoba is situated at the

distance of 1 k.m. from the spot. It is on the eastern side of the

spot. The evidence shows that the well had no parapet wall. The

well had depth of 200 to 250 fts, but the water was at the level of

20 fts. from ground level. The well was constructed and one brick

of the wall at the ground level was found in detached condition.

On southern side of the well, there was heap of earth and the

heap was found spread up to the distance of 20 fts. from the well.

Between this heap of earth and the well, there was foot path from

west to east. On western side of the well beyond one road, there

was land of accused No. 1. The distance between the well and the

land of accused No. 1 is not shown both in the spot panchanama

and in the map of scene of offence. In the spot panchanama, the

land of accused is shown towards southern side of the land of

Nago Choudhary. From the contents of the spot panchanama and

the map of scene of offence, it is not possible to infer that the well

is visible from any point from the field of accused No. 1. A Neem

tree is shown to be situated at the distance of 25 fts. from the well

Cri. Revn. Appln. No. 241/08

in the land of Nago Choudhary. No other tree is shown either in

the map of scene of offence or in the spot panchanama.

12. Suresh Gaikwad (PW 2) has deposed that at about

12.00 noon he was sitting under the aforesaid tree. He has

deposed that accused No. 2 came there with the deceased and

his daughter on a motorcycle. He has deposed that the accused

No. 2 left the field by saying that he would call his brother from

other field and the deceased and her daughter were left near him.

He has deposed that the deceased handed over her daughter to

him and then she went towards Badam tree where she sat. It is

already observed that no such tree is shown in the spot

panchanama and in the map of scene of offence. He has deposed

that when he was sitting under Neem tree, which is shown on the

southern side of the well, he heard a noice of falling of something.

He has deposed that when he turned towards backside, he

noticed that accused Nos. 2 and 3 pushed the deceased into a

well. He has again deposed that accused Nos. 2 and 3 virtually

lifted the deceased and they threw her in to the well. He has

deposed that accused Nos. 2 and 3 gave threat to him and

warned him not to disclose the incident to anybody. He has

deposed that he then went to the house of accused and he

handed over the daughter of deceased to accused No. 5 and then

he went to home. He has deposed that police arrested him on the

Cri. Revn. Appln. No. 241/08

same day, in the evening. He has admitted his statement

recorded under section 164 of Cr.P.C. and it is at Exh. 72. He has

admitted that another statement was recorded on 16.3.2004,

which is described as "memorandum" and which is at Exh. 88

(proved for proof of contradictions).

13. As per the record, Suresh (PW 2) was put under the

arrest on 12.3.2004. The previous statement of Suresh at Exh. 88

is titled as "memorandum". This document bears the signature of

Suresh (PW 2) and this document shows that it is signed by two

panch witnesses and also the police officer, who prepared the

memorandum. Nothing was recovered on the basis of this

statement, memorandum of Suresh (PW 2). In view of the

contents of this document, it can be said that the document does

not fall under section 27 of the Evidence Act and it needs to be

treated as a statement recorded under section 161 of Cr.P.C.

Suresh (PW 2) has admitted that such statement was recorded by

police. Salve (PW 6), the Investigating Officer, has given evidence

in respect of this document and the relevant portions are proved

as contradiction in the evidence of PW 6. Though there is a

signature of PW 2 on this document, in view of the object behind

the provisions of section 162 of Cr.P.C., the statement can be used

for the purpose mentioned in section 145 of the Evidence Act, for

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the purpose of contradicting Suresh. This Court holds that the

different portions at Exh. 88 duly proved as contradictions after

confronting Suresh with these portions, can be used to test the

veracity of PW 2.

14. On 16.3.2004 Suresh (PW 2) had stated before police

that after handing over the daugther to him, the deceased had

started towards temple of Lord Munjoba. He had stated that she

had started by foot path which passes by the side of well. He had

stated that he had started walking towards a mango tree situated

on the northern side. It needs to be mentioned that no such

mango tree is mentioned in the spot panchanama and in the map

of scene of offence. He had stated before police that on that day

he had heard sound of fall of somebody. He had stated before

police that on that day he had seen accused Nos. 2 and 3, who

came to him and they had made inquiry with him about the

deceased as they had not seen the deceased near the temple. He

had stated before police on 16.3.2004 that due to the conduct of

accused Nos. 2 and 3 he had suspicion against them that they

had thrown the deceased in to the well. He had stated before the

police that at about 2.00 to 2.30 p.m., on the day of incident, he

had told the parents of the deceased that he had heard the sound

of falling somebody in to the well. Thus, in the statement of

Cri. Revn. Appln. No. 241/08

16.3.2004, PW 2 had given different versions and he had not

stated that he had seen accused Nos. 2 and 3 throwing the

deceased in to the well.

15. The statement of PW 2 was recorded under section

164 of Cr.P.C. on 19.3.2004. It can be said that the contents of

statement under section 164 are consistent with the substantive

evidence given by the PW 2 on material points.

16. The evidence of PW 2 that he was taken in custody by

police on 11.3.2004 in the evening, creates probability that there

was suspicion against PW 2 himself even before the registration of

the crime. Here it needs to be kept in mind that the A.D. report

was given at about 6.00 p.m. on 11.3.2004 by accused No. 1 and

it was given on the basis of information received from Suresh

(PW 2). Thus, on 11.3.2004 Suresh Gaikwad was suspect for police

and he was taken in custody. This circumstance needs to be kept

in mind at the time of appreciation of the evidence of Suresh

Gaikwad.

17. It is brought on record that on 15.3.2004 Suresh

(PW 2) while in custody had complained to J.M.F.C. that police had

assaulted him on 14.3.2004. He was represented by an advocate

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and his advocate had moved an application before J.M.F.C. and

even the request was made for medical treatment. This allegation

of Suresh was not believed by J.M.F.C., but this circumstances

cannot be ignored at the time of appreciation of the circumstance

that Suresh gave statement under section 164 of Cr.P.C. on

19.3.2004 to J.M.F.C. When the incident took place on 11.3.2004,

it can be said that there is a probability that Suresh had the

knowledge about something with regard to the incident, but he

did not disclose anything to police till 16.4.2004 and he came

forward to give statement under section 164 of Cr.P.C. first time

on 19.3.2004. In view of the delay caused and statement dated

16.3.2004, the statement under section 164 of Cr.P.C. needs to be

looked with doubt. Further, the contradictions on material points

in relation to the statement at Exh. 88 are proved by the defence.

In view of the circumstances and also the circumstances which

are being discussed afterwards, this Court holds that the evidence

of Suresh (PW 2) is not free from doubt. He changed his versions

from time to time.

18. One Jagdish (PW 4), husband of elder sister of

deceased, has tried to say that on 11.3.2004 Suresh (PW 2) had

disclosed to him that accused Nos. 2 and 3 had pushed Suwarna

in to the well. This witness gave statement to police on 15.3.2004.

Cri. Revn. Appln. No. 241/08

Further, in the statement given on 15.3.2004 this witness had not

stated before police such disclosure was made by Suresh to him.

This omission is duly proved by the defence in the evidence of

Investigating Officer (PW 6). Further, no such evidence is given by

Suresh. In view of these circumstances, there is no need to

discuss more evidence of Jagdish (PW 4) on this point.

19. In the evidence of Dr. Gade (PW 5), P.M. report is

proved as Exh. 81. It is not disputed that Suwarna died due to

drowning. The medical evidence shows that four anti mortem

injuries were noticed on the dead body and they were

contemporary with the finding of death due to drowning. Those

injuries were :-

(i) Contused lacerated wound on right elbow joint

posteriorly of the size of 1/2" x 1/2" x bone deep,

oblique, clotted blood was noticed.

(ii) Abrasion on left forearm posteriorly below

elbow, 1.1/2" x 1/2" in size, dark brown in colour.

(iii) Graze (abrasions) on right buttock. 6x4" in size,

verticle in direction, dark brown in colour.

(iv) Left eyelid blackened and swollen.

The first three injuries were found on posterior aspect. There was

verticle graze (abrasion) over right buttock. The direction of the

Cri. Revn. Appln. No. 241/08

injury on buttock creates a probability that the deceased fell on

back side and she slept towards downward direction. These

injuries are not consistent with the version of Suresh that Suwarna

was either pushed or she was thrown in to the well. One injury

was found on one eye, but such injury can be caused by fall also

and nothing is said by Suresh about the assault, if any, made on

the deceased by accused Nos. 2 and 3. No evidence that

deceased shouted or offered resistance.

20. The evidence on record has created a probability that

the deceased had not gone to that side in the past. Due to heap

of earth on one side of the well and as the road was passing

between the heap of earth and the well, the possibility of

accidental fall of the deceased into the well cannot be ruled out. It

can be said that the conduct of Suresh (PW 2) was also doubtful

and due to that conduct, it can be said that other probability like

some other incident took place and involvement of Suresh cannot

be ruled out. Thus, the medical evidence and the evidence of spot

panchanama is consistent with the probability of accidental fall.

This evidence creates doubt about the version of Suresh (PW 2).

In view of these circumstances, the Trial Court has held that there

is the possibility of accident fall. As it is a possible view, no

interference is possible in the view taken by the Trial Court.

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21. For proving the offence punishable under section

498-A and 304-B of I.P.C., the prosecution was required to prove

that there was illtreatment, cruelty against the deceased and that

was on account of illegal demand of money. The main allegation is

that there was the harassment to force the demand. The case of

the prosecution of demand of Rs. one lac from the accused for

paying the price of land purchased by the accused is falsified by

the sale deed, the copy of which was collected by the police

during investigation. The evidence of Salve (PW 6), the

Investigating Officer, shows that he collected the copy of sale

deed which is at Exh. 94. This document shows that the

transaction took place on 20.12.2002. The land was purchased in

the name of accused No. 5, the wife of the accused No. 1, for

consideration of Rs. 2.25 lacs. The document shows that the

entire amount was received by the vendor prior to the date of

transaction. To Falsify this portion of sale deed and to show that

some amount remained to be paid, it was necessary for the

investigating agency to record the statement of vendor and then

to give the substantive evidence of vendor. The absence of such

evidence gives opportunity to the defence to say that no such

amount was required. The evidence on record shows that

accused No. 1 was employed in a branch of District Bank. There

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is no evidence on record to show that the accused were facing

financial crunch. In view of the nature of evidence on record, it is

not possible to believe that the accused were in need of money

and so they were asking the deceased to bring Rs. one lac from

the complainant.

22. The evidence of complainant, PW 1, does not show

that at the time of settlement of the marriage, there was any

demand of dowry or any amount was required to be given to the

accused for the marriage. The father of deceased was already

dead. These circumstances are not certainly in favour of the case

of the prosecution. No evidence is given by the complainant to

show that he had capacity to meet such demand. The

complainant has given evidence that the demand was made after

purchase of the land i.e. after December 2002. The incident took

place on 11.3.2004. In view of these circumstances, the case of

the prosecution that the demand was made for purchase of the

land does not appear to be probable in nature.

23. The so called evidence on cruelty given by

prosecution is mostly in the form of disclosures allegedly made by

the deceased to the prosecution witnesses. The evidence is given

that the last disclosure was made about one month prior to the

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date of incident. No evidence is given by PW 1, complainant, that

he had contacted accused and he had questioned them about the

disclosure allegedly made by the deceased. The evidence of

Jagdish (PW 4) is similar in nature. He has not given particulars as

regards time, date, place, month etc. about the disclosures.

Similarly, the evidence on illtreatment given by PW 2 Suresh is

very vague. This Court has already observed that Suresh cannot

be believed on any point. As the prosecution has failed to prove

that the death of Suwarna is suicidal in nature, in view of the

provision of section 32 of the Evidence Act, the evidence given by

the prosecution on alleged disclosures made by Suwarna is not

admissible as dying declaration under section 32 of Evidence Act.

Thus, there is nothing wrong in the findings given by the Trial

Court in respect of offences punishable under section 304-B and

498-A of I.P.C. also.

24. For respondents, reliance was placed on two reported

cases. In the case reported as AIR 2010 SC 1140 [Sheetala

Prasad and Ors. Vs. Sri Kant and Anr.], the Apex Court has

discussed the extent of power of this Court under section 401 (3)

of Cr.P.C. The Apex Court has observed that such power cannot be

exercised lightly when invoked by private complainant against the

order of acquittal. The Apex Court has made following

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observations :-

"Without making the categories exhaustive,

revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial Court has

wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside

as inadmissible, (3) where the trial Court has no jurisdiction to try the case and has still

acquitted the accused, (4) where the material evidence has been overlooked either by the

trial Court or the appellate Court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the

compounding of the offence which is invalid under the law. By now, it is well settled that the

revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it

can be exercised only in exceptional cases where the interest of public justice require interference for correction of manifest illegality

or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered."

25. In the case reported as 2008 CRI.L.J. 1627

Cri. Revn. Appln. No. 241/08

SUPREME COURT [Johar and Ors. Vs. Mangal Prasad and

Anr.] it is observed by the Apex Court that for interference in the

decision of the Trial Court, the High Court is required to point out

any error of law on the part of the learned Trial Judge. It is

observed that the High Court is expected to point out that any

relevant evidence has been left out of its consideration by the

Trial Court or irrelevant material has been taken into

consideration. It is observed that if such things are absent, the

High Court is not expected to enter in to the merits of the matter.

26. In view of the observations made by the Apex Court in