Bombay High Court
Bhagwan Ambadas Kanhere vs The State Of Mah And Ors on 1 September, 2015
Bench: S.S. Shinde
Appln5645.12+Apeal412.13.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.5645 OF 2012
WITH
CRIMINAL APPEAL NO.412 OF 2013
CRIMINAL APPLICATION NO.5645 OF 2012
The State of Maharashtra, through
Police Inspector, Kadim Jalna Police Station,
Jalna.
ig .. Applicant
(Original Complainant)
.. Versus ..
1. Sandeep Laxman Tirukhe, Age 30 years,
2. Chandrakala w/o Janardhan Tirukhe, Age 62 years,
3. Ganesh Janardhan Tirukhe, Age 31 years,
4. Laxman Agaji Tirukhe, Age 56 years,
5. Janabai w/o Laxman Tirukhe, Age 50 years,
6. Pradeep Laxman Tirukhe, Age 24 years,
7. Anita w/o Santosh Goje, Age 26 years,
Accused Nos.1 to 3, R/o. Daregaon,
Tahsil and District - Jalna,
Accused nos.4 to 7, R/o. Satara Parisar,
Aurangabad. .. Respondents
(Original Accused)
..........
Shri M.M. Nerlikar, APP for the Applicant,
Shri V.D. Sapkal, Advocate for the Respondent Nos.1 to 7.
..........
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Appln5645.12+Apeal412.13.odt 2
WITH
CRIMINAL APPEAL NO.412 OF 2013
Bhagwan s/o Ambadas Kanhere,
Age 52 years, Occupation-Agriculture,
R/o. Gevrai Bazar, Tah. Badnapur,
District - Jalna. .. Appellant
(Original Complainant)
.. Versus ..
1. The State of Maharashtra,
(Copy to be served on G.P. Of
High Court Bench at Aurangabad).
2. Sandeep Laxman Tirukhe,
Age 32 years,
3. Chandrakala w/o Janardhan Tirukhe,
Age 64 years,
4. Ganesh Janardhan Tirukhe,
Age 33 years,
5. Laxman Agaji Tirukhe,
Age 58 years,
6. Janabai w/o Laxman Tirukhe,
Age 52 years,
7. Pradeep Laxman Tirukhe,
Age 26 years,
8. Anita w/o Santosh Goje,
Age 28 years,
Accused Nos.1 to 3 resident of Daregaon,
Tahsil and District - Jalna,
Accused nos.4 to 7 r/o. Satara Parisar,
Aurangabad. .. Respondents
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Appln5645.12+Apeal412.13.odt 3
..........
Shri V.B. Jogdand, Advocate h/f Shri N.S. Ghanekar, Advocate for the
Appellant,
Shri M.M. Nerlikar, APP for Respondent No.1-State,
Shri V.D. Sapkal, Advocate for Respondent Nos.2 to 8.
..........
CORAM : S.S. SHINDE AND
A.I.S. CHEEMA, JJ.
RESERVED ON : 23.07.2015.
PRONOUNCED ON : 01.09.2015.
JUDGMENT : (Per : A.I.S. CHEEMA, J.)
1. Criminal Application No.5645/2012 has been filed by the
State under Section 378 (1)(3) of the Code of Criminal Procedure, 1973
seeking leave to file appeal against the judgment of acquittal passed in
Sessions Case No.200/2010 by the learned Sessions Judge, Jalna on
24.9.2012, wherein the respondents/accused nos.1 to 7 (hereinafter
referred to as 'accused nos.1 to 7) have been acquitted of the offence
punishable under Section 302 r/w 34 in alternative Section 304-B r/w
34 and Section 498-A r/w 34 of the Indian Penal Code, 1860 and
Sections 3 and 4 of the Dowry Prohibition Act.
2. Criminal Appeal No.412/2013 has been filed by the original
complainant PW-1 Bhagwan Ambadas Kanhere against the same
acquittal. The application for leave as well as the appeal for admission
have been heard finally.
3. The case of the prosecution, in brief, is as follows :
(a) Sapna, the daughter of PW-1 Bhagwan, was
married to accused no.1 Sandeep on 30.4.2007. The rest of the accused
are relatives of accused no.1. On 15.2.2010, PW1-Bhagwan filed FIR
Exh.42 with PW-14 API Rangnath Phule of Police Station, Sadar Bazar,
Jalna. The complaint is that his daughter Sapna, after marriage, was
treated well for about one year and, thereafter, the accused persons
started demanding Rs. 5 Lacs to get the same from her parents, so that
accused no.1 could acquire the job of Gramsevak. She was unable to
bring the money. She was mentally harassed and also beaten by accused
persons. The complainant brought her to his place in 2009 for Diwali,
as she was pregnant. Later on a female child was born to her. When the
complainant informed accused no.1 to take back Sapna and the child,
accused no.1 asked for Rs. 5 Lacs as the condition to take back Sapna.
In view of this, the complainant withdrew Rs. 2 Lacs from the bank and
the money was sent to accused no.1 on 19.12.2009 through his son PW-
7 Yogesh. PW-7 Yogesh went to Aurangabad with the amount and had
taken along PW-8 Shivaji Wagh and PW-9 Sambhaji Kanhere. After the
money was paid, accused promised to take back the victim in 2-3 days.
On 3.1.2010, accused no.1 came to take back Sapna, but he wanted
another Rs. 1 Lac. The amount was paid and the victim and the child
were taken by accused no.1. On 7.1.2010, accused no.1 again asked for
Rs.2 Lacs. On 7.2.2010, complainant received phone call from his
brother-in-law Narayan Golde informing that the victim was found
missing from Deepak Hospital, Jalna. Consequently, the complainant,
his family and relatives searched for the victim, but she was not traced
out. The complainant, on 10.2.2010 had filed report (Exh.41) with
Kadim Jalna Police Station. On 14.2.2010 dead body of the victim had
been recovered from well at Hanuman Tekdi. Therefore, complaint. In
Exh.41, it was claimed in the report that there was search for the
victim since 7.2.2010. On 9.2.2010, complainant had taken the phone
of accused no.1, when there was a call coming in and accused no.3
Ganesh not knowing that accused no.1 was not on the line stated on the
phone that he would come with the victim to the Railway Station, Jalna.
After five minutes, the accused no.3 again made call that he was
standing near Satkar Building with the girl i.e. Sapna. Due to this,
complainant expressed suspicion that the accused persons had
kidnapped the victim and she should be rescued.
(b) On 14.2.2010, one Bandu Devidas Nikalje (PW-2) filed
a report Exh.44 at Police Station, Sadar Bazar, Jalna of having seen a
dead body of a female in the well of one Ramesh Gaud behind Golden
Jubilee School. The information was registered at the Police Station as
A.D. No.4/2010 and PSI Mr. Phule enquired into it. He went to the spot
and the dead body was taken out from the well. The spot panchanama
Exh.45 was prepared as also inquest panchanama Exh.47 was also
prepared. There was a rope, article no.1 around the waist of the
woman. The body was in decomposed condition. It was sent for
postmortem to the Civil Hospital, Jalna. Postmortem was conducted by
PW-11 Dr. Prakash on 15.2.2010 at about 10.15 am treating the woman
as unknown female. Later, the dead body was identified by Yogita, the
aunt of PW-7 Yogesh as that of deceased Sapna. Thereafter, the
complainant PW1 Bhagwan filed report Exh.44 referred above. Offence
was registered as Crime No.35/2010 at Police Station, Sadar Bazar,
Jalna. The investigation was done by API Rangnath Phule. He recorded
the statements of the witnesses. The viscera of the victim was sent to
the Chemical Analyser. No poison was detected. Dr. Prakash (PW-11)
gave final report of the cause of death as head injury with corresponding
internal injury i.e. fracture of right parietal bone with rupture of brain
matter. The clothes of the victim had also been seized vide panchanama
Exh.51 as well as the rope which was found tied around her waist. The
clothes of the victim were also sent to Chemical Analyser. After the
investigation, the charge-sheet came to be filed by the Deputy
Superintendent of Police Shri Gujar.
4. The offence being sessions triable, it was committed to the
Court of Sessions. The charge came to be framed for the offences as
mentioned above and the accused pleaded not guilty. Their defence is
that of total denial.
5. The prosecution examined 14 witnesses to establish the case
against the accused persons. The accused persons examined one
defence witness.
Trial Court held....
6. The trial court, after considering the material brought before
it discussed the evidence and found that there was no sufficient evidence
to hold that the deceased died of homicidal death. Even regarding
Sections 304-B and 306 of the Indian Penal Code and the sections under
the Dowry Prohibition Act, the trial court discussed the evidence of
alleged demands of money and the ill-treatment claimed by the
witnesses and came to the conclusion that it was not proved that there
was demand of dowry and that there was ill-treatment. The evidence
was weighed and the trial court found that it was not proved that soon
before the death the victim was subjected to cruelty for non payment of
dowry or that there was such cruelty so as to abet suicide.
Arguments
7. Against the acquittal, the State has filed this application for
leave and it is argued by the learned APP for the State that the evidence
in the matter was not properly appreciated. The victim was ill-treated
and physically assaulted for non fulfillment of the demand for Rs.5 Lacs.
There was corroborative evidence from PW-8 Shivaji and PW-9 Sambhaji
to the accused persons regarding payment of Rs.2 Lacs and similarly
there was evidence of PW-10 Ganesh supporting the complainant that he
had paid money to the complainant because he wanted to pay Rs. 1 Lac
to the accused no.1. The death occurred within seven years of the
marriage and it being unnatural death, the accused were liable to
explain and according to the learned APP, the offence was proved. The
learned counsel for the complainant also supported the learned APP.
According to the complainant, there was persistent demand for money
and victim was not being taken back by the accused as the money was
not paid and only when Rs.3 Lacs in instalments were paid, the victim
was taken and soon thereafter, she was stated to be missing from the
Hospital and lateron her dead body was found in suspicious
circumstances. PW-5 Paraji Tupe was wrongly disbelieved by the trial
court. He was the person, who had last seen the deceased in the
company of accused no.1 going on motorcycle on 7.2.2010 in the
morning around 11.15 to 11.30 am. In the afternoon, it was stated by
accused no.2 Chandrakala to this witness that the victim had gone down
stairs at the Hospital but did not return. According to the complainant,
the evidence has not been properly considered and the accused persons
should have been convicted.
Per contra, it has been argued by the learned counsel for the
respondents-original accused that the judgment of the trial court is well
reasoned and view taken is possible view which should not be interfered
with. According to the learned counsel, the evidence shows that the
accused no.1 and the victim only were residing together and other
accused were residing separate. Till the child was born to accused no.1,
the relations appear to be normal. Even after, the victim went missing,
accused no.1 made lot of efforts to trace her out. There is evidence that
accused no.1 used to take care of his wife and her health and her
education was improved because of efforts of the accused no.1. There is
no reliable evidence of alleged demands or that the victim was harassed
or ill-treated. The learned counsel submitted that the application filed
by the State and the appeal filed by the complainant deserve to be
rejected.
Victim goes missing
8. We have carefully gone through the oral and documentary
evidence as brought before the trial court and there is evidence of PW-1
Bhagwan, the complainant, that on 7.2.2010, his brother-in-law Narayan
Golde phoned him to inform that accused Sandip enquired from him and
had told him that deceased Sapna had gone to the ground floor from the
first floor of Deepak Hospital and she did not return. According to the
complainant, Narayan enquired if the victim had come to his house.
PW-7 Yogesh, the brother of the victim, has also deposed that on
6.2.2010 the female child of the victim came to be admitted at Deepak
Hospital, Jalna due to some illness. On 7.2.2010, Narayan Golde made
a phone call to him and informed that the victim had gone down stairs
of the hospital and, thereafter, did not come back. Evidence is that PW-
1 and PW-7 along with relatives as well as accused no.1 searched for the
victim and that she was not found.
Body found
9. There is a evidence of PW2 Bandu Nikalje. According to him,
on 14.2.2010 at about 3.30 pm, he had gone to the area where Golden
Jubilee School is situated. He noticed a crowd near the well in the field
of Ramesh Goud. He went there and saw the dead body of a female
floating on the water of well. The female was wearing red colour
blouse, red colour sari and black petticoat. He then went to the Police
Station, Sadar Bazar and gave information which was recorded as A.D.
4/2010. He proved document Exh.44 in this regard. He accompanied
the police back to the spot. Fire-brigade was called and with the help of
a rope, the body was taken out from the well. He saw a rope about 5 ft.
long which was around abdomen of the dead body. Police prepared
spot panchanama Exh.45 and this witness was one of the panchas. The
rope was also seized. According to this witness, the face of the dead
body was disfigured and to some extent decomposed. It was a well in
vacant land with trees around the place and cattle used to be there for
grazing purpose. At some distance, there were two temples and road
going towards Deoulgaon-raja. Inquest panchanama Exh.47, dated
14.2.2010 done at 4.30 pm does not contain name of the woman.
Post-mortem
10. Record shows that postmortem was conducted by PW-11 Dr.
Prakash on 15.2.2010 at about 10.15 am. Postmortem report Exh.64
was prepared. Doctor found (i) Contusion over right parietal region of
the scalp, size 3 x 2 x 1 cm (ii) Linear abrasion over the right leg
anterior aspect 10 cms long. The evidence of PW-11 Dr. Prakash is that
he found fracture of right parietal bone of scalp and secondly brain
matter at right parietal sided ruptured into small pieces. He preserved
the viscera for report of Chemical Analyser. The doctor referred it to the
C.A. The C.A. report is at Exh.65 and did not show that there was
poisoning. Thus, according to him, the death occurred due to head
injury corresponding to internal injury which was fracture of right
parietal bone with rupture of brain matter. The doctor gave his final
opinion as per Exh.67.
11. In the examination-in-chief, Dr. Prakash deposed that in his
opinion, the death was homicidal death. However, in the cross-
examination, he accepted that the injury was possible by hard and blunt
object. In cross-examination he further accepted that if there are steps
in the well for reaching to the water of the well and a person falls in the
well and if a part of the head comes in contact with the said steps in
stones, then injury no.1, mentioned in column no.17 of the postmortem
report, was possible.
The Well
12. Now, if we refer to the evidence of PW-13 HC Ramkisan
Mante, who prepared the spot panchanama Exh.45, he has admitted in
cross-examination that the well concerned had twelve steps in stone in
cross direction from the top of the well up to the level of the water in the
well. The spot panchanama shows that it was a constructed well with
stone steps going down.
Police were informed on 7.2.2010 itself
13. Keeping the above discussion in view, it would now be
appropriate to refer to the evidence of PW-12 ASI Sk. Gulam Dastagir
s/o Abdul Razzak. His evidence shows that on 7.2.2010 at about 1.00
pm, he was at Murgi Talav Police Chowky and was informed by PSI
Patil, who was then PSO at Sadar Bazar Police Station, on phone that in
the well situated behind temple of God Datta, a woman had jumped in
the well and that he should go to the spot and confirm the news.
According to him, he went to the spot along with one constable and
inquired with the person grazing cattle nearby the well, but he did not
find any woman in the well. The persons there did not say any such
thing. He informed this to PSI Patil on mobile. He deposed that even
fire-brigade was called and they had also searched in the water by
putting hook, but nothing was found. In the cross-examination, this ASI
was confronted with his statement recorded subsequently by PW-14 API
Phule. The evidence of PW12 read with the evidence of PW-14 makes it
clear that this PW12 had not told at the time of investigation that he had
made enquiry with the persons grazing cattle nearby the well and that
they had told that no woman had jumped in the well. He had also not
stated that fire-brigade people searched the body of the woman in the
well with the help of hook or that persons grazing cattle were present
near the well. This is material because subsequently on 14.2.2010 the
dead body came up in the same well.
14. The learned counsel for the accused has rightly argued that
on 7.2.2010 the police were informed about a woman falling in the well,
but police did not carefully look into the information and because of this
the dead body of the woman was in the water from 7.2.2010 to
14.2.2010. PW-12 had to admit in cross-examination that it was true
that he came to know that the said dead body of the woman which was
found on 14.2.2010 was the one who jumped into the well on 7.2.2010
and was same woman who had been reported as missing with Kadim
Jalna Police Station.
Victim fell in well, was tried to be rescued
15. PW-14 API Rangnath Phule, who investigated the matter, has
deposed that on 19.2.2010 one Sultana Shaikh Quader had shown one
another piece of rope which also he seized. It appears that on 15.2.2010
when clothes of the victim were seized regarding which panchanama
Exh.51 was prepared and PW-5 Paraji and PW6-Dnyaneshwar are
examined, a piece of rope about 5 ft. long was seized from the waist of
the victim as it was in the form of a loop near her abdomen. PW-5 Paraji
was shown rope Art.1 which he accepted as seized under the
panchanama. Rope Art.6 he claimed was not the same which was
seized by the police under the panchanama. This confusion is cleared by
PW-14 Ranganath, who claimed that another piece of rope was seized
from one Sultana Shaikh Quader. In the cross-examination, this
investigating officer accepted that the dead body was found floating in
the water of the well along with rope. The remaining part of the rope
was lateron seized by him from witness Sultana. According to this
investigating officer, this Sultana was grazing cattle near the well on
7.2.2010 regarding which he recorded her statement. He had also
recorded the statement of one Hariappa Katkar, Santosh Aurange and
one Chhagan Katkar, who were also grazing cattle on 7.2.2010 near the
well. The Investigating Officer PW-14 Rangnath admitted that on
7.2.2010 information was given by one Babanappa Katkar and Santosh
Maruti Ujed regarding a woman taking jump in well for which station
diary entry 23 (Exh.83) was taken at about 1.15 pm at P.S. Sadar Bazar,
Jalna. The portion of fire-bridge, records the caller informing that
woman fell in well. One of the persons, who was grazing cattle near the
well, at that time was Chhagan Katkar. Although the prosecution
recorded his statement, he was not examined. The accused persons
examined this Chhagan as DW-1 and his evidence is that he was grazing
buffaloes near Gaitridevi Temple at about 12.30 pm. One Rajesh, who
was grazing his she-goats, shouted that a woman had fallen and
according to this witness, he and 5-6 persons ran towards the well. The
witness gave names of those persons also. As per DW-1 Chhagan, they
saw woman fallen in the well, who was then alive. He claimed that he
along with one Santosh got down into the well with the help of steps
and hooks. There was one bucket tied to the rope. They made the hook
of the rope and threw it towards the lady. They were successful in
putting the rope around her waist. However, when they tried to pull,
the rope broke and she fell down in the water and went down to bottom
and did not surface though they waited for 5 to 6 minutes. This DW-1
claimed that, thereafter, they came back to the houses and informed the
incident to others. He deposed that he returned the rope to a Muslim
girl to which it belongs. This explains the subsequent seizure of part of
rope from one Sultana Shaikh by PW-14 Ranganath. The above
evidence of DW-1 Chhagan is hardly challenged. The only question
asked to him in the cross-examination was that he was not there when
the dead body of that woman was taken out of the well. This would be
on 14.2.2010. With the unchallenged and unshattered evidence of the
DW-1 Chhagan, the position is clear which shows that the victim fell in
the well and was still alive and although DW-1 Chhagan and others tried
to help her and even succeeded in putting rope around her waist, they
could not save her when the rope broke and the victim went down in the
water and did not surface. Had the PW-12 Shaikh Gulam seriously
followed the information received at the Police Station, the body of the
victim could have been taken out on 7.2.2010 itself.
Last seen together ? Uninspiring
16. Prosecution examined PW5 Paraji Tupe, the brother-in-law of
the complainant Bhagwan. He claimed that on 7.2.2010, he was going
towards new Jalna via Gandhi Chaman (Garden) along with his brother-
in-law Rajeshwar Jarhad. He claimed that he saw the accused no.1
Sandeep along with victim proceeding on motorcycle and that they were
ahead of them. This was around 11.15 and 11.30 am. According to
him, lateron when at about 12.15-12.30 pm, they went to Deepak
Hospital, Jalna, when accused no.2 Chandrakala told him that minor
daughter of victim was with her (at the hospital) but the victim, who
had gone down stairs to answer the natures call did not return.
Prosecution has tried to rely on this evidence claiming that the accused
was last seen with the victim. In the cross-examination, the omission is
proved to the extent that PW-5 had not stated that the victim and
accused were ahead of them. However, the witness has to be discarded
for the reason that although he claims to have been concerned with the
victim missing from 7.2.2010 and for having even searched for her and
was panch in Exh.51 panchanama when clothes of the victim was seized
on 15.2.2010, he kept quiet and never stated seeing the victim and the
accused traveling on motorcycle ahead of him on 7.2.2010. In fact, the
statement of this witness was recorded by PW14 Rangnath only on
13.4.2010, which is after a period of two months. Thus, it would be
risky to rely on such evidence.
Culpable Homicide/Suicide - Not proved
17. Looking to the reasons recorded in earlier paragraphs, we
find ourselves in agreement with the trial court that culpable homicide is
not established looking to the spot and manner in which the victim died.
The prosecution has failed to prove beyond reasonable doubt that the
death was due to culpable homicide or suicide.
Demand of Dowry - ill-treatment/Cruelty ?
18. Coming to the other evidence of demand of dowry,
ill-treatment and cruelty, there is evidence firstly of PW1 Bhagwan and
his son PW7 Yogesh. PW 1 and 7 in unison deposed that the marriage
took place on 30.4.2007 and that the victim was treated well for about
one year. According to them, thereafter the accused no.1 demanded
Rs.5 Lacs to the victim, so that he could procure service. The evidence is
that the victim asked her father (complainant) for the money but when
the complainant expressed inability to pay, the accused persons used to
beat the victim. These two witnesses have then deposed that at the time
of Diwali-2009 victim was brought to the place of complainant as she
was expecting. Lateron, a girl child was born. It appears from the
evidence of PW7 that the daughter was born on 3.11.2009. According
to the evidence of these witnesses, after the daughter was born and
when the message was given to accused no.1 Sandeep to take back the
victim as well as the baby, he insisted for the money of Rs.5 Lacs. The
further evidence brought on record by the prosecution is that on
19.12.2009, the complainant PW1 Bhagwan and his son PW7 Yogesh
withdrew some money from the bank and PW7 Yogesh was sent to
deliver Rs. 2 Lacs to the accused. He went along with PW8 Shivaji, who
is his friend and PW9 Sambhaji Kanhere, who is from the same
brotherhood of the complainant, to the place of the accused at
Aurangabad and Rs.2 Lacs were given.
19. There is further evidence of PW1 Bhagwan and PW7 Yogesh
that when Rs.2 Lacs were given, they asked the accused to take the
victim back and the accused stated that in a couple of days, she would
be taken. PW7 Yogesh has deposed that 7-8 days after 19.12.2009,
when the accused were asked to take back the victim, there was further
demand of Rs. 1 Lac. It is the evidence that after another 7-8 days,
accused no.1 Sandeep came to the place of the complainant. The
complainant took Rs.90,000/- from one of his friend PW 10 Ganesh
Lahane and added Rs.10,000/- from his pocket and gave it to accused
no.1 Sandeep, who thereafter, took the victim along with the Baby. To
corroborate, PW10 has been examined deposing that the complainant
had asked him Rs.90,000/- in 2010 as he wanted to give to his son-in-
law and he had the money from sale of cotton which was given. The
evidence of PW1 is that earlier when Rs.5 Lacs were demanded and
were not paid, the victim was subjected to "beating" by all the accused.
PW7 Yogesh in this regard stated that deceased Sapna had told him that
when the amount was not paid, she was "ill-treated" by all the accused.
Now this evidence regarding the demands and cruelty needs to be
examined.
If the evidence of PW1 Bhagwan and PW7 Yogesh if perused,
the picture which emerages is that after the marriage only for about a
month the victim and accused no.1 stayed at Aurangabad, where
accused nos.4 to 6 reside. Accused nos.2 and 3 are resident of
Daregaon. Accused no.7 got married long back and has been living with
her husband, who is government servant at Aurangabad. What appears
is that after the marriage, accused no.1 was serving in newspaper at
Latur and, thereafter, he joined another newspaper at Jalna. He was
residing in his house at Daregaon and from there he was coming to
Jalna as it is nearby. Accused nos.2 and 3 although reside at Daregaon
were residing separate. Thus, in fact, it was only accused no.1 and the
victim who were living together. Still the evidence has been lead in a
vague manner to show as if all the accused were making demands,
beating and ill-treating the victim. The prosecution did not bring on
record the evidence of any neighbour either from Latur or at Daregaon.
At Latur, the victim and accused no.1 were residing in the house of one
Govind More, but he has not been examined.
20. There is evidence that after the baby girl was delivered,
accused no.1 along with accused nos.4 to 7 had visited the house of the
complainant at Gavrai Bazar to see the baby. According to the
complainant, at that time, he offered then clothes and "happily made a
see off". There is substance in the argument of the learned counsel for
the accused that this itself shows that till that point of time there were
no grievances. The cross-examination of the complainant shows that on
15.1.2010 the accused Sandeep had again gone to the house of the
complainant to see the victim as well as his baby. The complainant
admitted that after the birth of the baby, the baby was sick and,
therefore, brought in the hospital named as Om Hospital, Jalna from the
village of the complainant. The cross-examination of complainant
further shows that when the victim was pregnant and residing along
with the accused no.1 Sandeep at Latur and she was operated there for
some abdominal problems, complainant admits that he did not visit her
at that time. The learned counsel for the accused argued that this
showed that there were no problems as the complainant was aware that
the accused would take care. The cross-examination of complainant
further brought on record the fact that accused no.1 had tried to secure
employment at Latur for the victim and she had also appeared for the
Bank Recruitment Examination at that time; that the accused no.1 had
arranged to get the victim admitted to D.Ed. course and that he got her
admitted to MS-CIT course in an institute and had himself incurred the
expenses. The victim had even passed the said examination and got a
certificate. The complainant accepted that in 2009-10, victim took
admission in Nath Krishi Tantra Vidyalaya, at village Galle Borgaon,
Taluka- Khultabad, District-Aurangabad. The complainant pleaded
ignorance, whether the accused had paid the fees in two instalments of
Rs.6,500/- and Rs.4,960/- for the purpose. The complainant admitted
that when the victim was admitted in the hospital at Latur for medical
treatment before her pregnancy and even after she was carrying
pregnancy, the expenses of medical treatment were borne by the
accused no.1. If this is not enough evidence to show that accused no.1
was concerned for his wife and was not after money, there is further
evidence. The complainant denied that accused no.1 had transferred a
cash amount of Rs.1,75,000/- to the account of his son Yogesh to help
him to purchase a car. It appears that PW7 purchased a car in 2009. In
the cross-examination of PW7, however, had to admit that he had
purchased swift maruti car and before the same was purchased, accused
no.1 had transferred an amount of Rs.1,75,000/- into his bank account.
PW7 Yogesh tried to depose that he did not to accept that amount for
the purchase of car and even volunteered in further cross-examination
that he had returned the money. However, the material brought on
record makes the evidence of PW1 and PW7 doubtful, that the accused
no.1 was clamouring for money. Had it been so, he would not have
been lending such huge amount to his brother-in-law Yogesh. The
evidence shows that he was a concerned husband who wanted his wife
to study further, that she should get a job and was taking care of her
when she was ill.
21. The cross-examination of complainant shows that after the
victim went missing on 7.2.2010, accused no.1 had on 9.2.2010 given
proclamation in daily newspaper in 'Sakal' and daily 'Punaynagari' at
Jalna. The accused no.1 continuously for three days advertised in the
local channel of cable network at Jalna about the victim. Although the
complainant denied that the accused no.1 submitted missing report to
Police Station on 7.2.2010, there is evidence of PW5 Paraji that when he
went to the hospital and came to know that the victim had gone down
stairs and did not return, he along with accused no.1 and others had
gone to Kadim Police Station Jalna and accused no.1 had lodged missing
report. Although PW1 and PW7 have been supported by PW7 to PW10,
if the cross-examination of these witnesses is perused and is read along
with the evidence of PW14 API Rangnath, there are various material
contradictions and omissions. This can be seen from para nos.8, 10 and
11 of the cross-examination of PW14. The complainant had not stated in
his complaint that he had taken Rs.90,000/- from one of his friend. PW
10 Ganesh, who had lent Rs.90,000/- to the complainant, gave his
statement to the police only on 21.2.2010. PW8 Shivaji had not stated
in his statement to the police that PW7 Yogesh had told him that they
wanted to go to Aurangabad for giving cash amount. This PW8 Shivaji,
a photographer having his shop, claimed in his evidence to have closed
his shop just to accompany. If it does not show his interest, it would be
unnatural. Looking to the various contradictions and omissions in the
evidence of these witnesses, the trial court has rightly not relied on this
evidence.
Trial Court view possible
22. We have carefully gone through the whole evidence and the
reasons recorded by the trial court. The trial court has taken a view
from the evidence that the offence is not established. On going through
the material available, we also do not find that the prosecution has
established the offence. The view taken by the trial court is possible
view. In fact, looking to the material available, the view taken by the
trial court is correct view of the evidence.
23. For the above reasons, there is no reason to grant leave to file
appeal to the State or to allow the appeal and the appeal filed by the
complainant also is not worth admitting or allowing.
24. For the above reasons, the application filed by the State as
well as the appeal filed by the complainant, both are dismissed, with no
order as to costs.
(A.I.S. CHEEMA, J.) (S.S. SHINDE, J.)
Gulande
