Smt. Pratibha Devendra Singh (In ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 3604 Bom

                                                        1                         apeal183.14.odt

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH AT NAGPUR




                                                                                        
                             CRIMINAL APPEAL NO.183/2014




                                                                
            Smt. Pratibha Devendar Singh,
            agedd 36 years, Occ. Labour,
            r/o Vikaspalli, Tq. Chamorshi,
            Dist. Gadchiroli, at present 




                                                               
            Hudco Colony, Qtr. No. B-19/228, 
            Jaripatka, Nagpur.                                   .....APPELLANT
                              ...V E R S U S...




                                                
            State of Maharashtra through
            Police Station Officer, P.S. Jaripatka,
                             
            Nagpur.                                               ...RESPONDENT
     -----------------------------------------------------------------------------------------------
     Ms F. N. Haideri, Advocate for appellant. 
                            
     Mr. T. A. Mirza, A.P.P. for respondents-State.
     -----------------------------------------------------------------------------------------------

                     CORAM:-  B. R. GAVAI &    V. M. DESHPAND E, JJ.
                     DATED :-   
                                JULY 5, 2016
      
   



     J U D G M E N T (Per : V. M. Deshpande, J.)

1. The appellant has been charged that she has committed

homicidal death of one Smt. Jaitula Pralhad Dongre on account of

vacating the rented room. The learned Additional Sessions Judge-5,

Nagpur in Sessions Trial No. 494/2012 found that the charge is

established by the prosecution and, therefore, convicted her for the

offence punishable under Section 302 of the IPC and directed that

she should suffer imprisonment for life and to pay a fine of Rs.500/-

and in default to suffer simple imprisonment for one month. Hence

this appeal.

2 apeal183.14.odt

2. Such of the facts, which are necessary for the appeal are

stated hereunder.

Shantaram Jadhav (PW11) was discharging his duties as

Police Sub Inspector at Police Station, Jaripatka. On 14.07.2012 at

around 11.30 pm. On 15.07.2015, Manoj Dongre (PW1) came to

Police Station and lodged a complaint. The said complaint is at

Exh.-20. On the basis of the said, Shantaram Jadhav registered

accidental death report No.64/2012.

As per the complaint Exh.-20, the deceased Jaitula was his

mother. He along with his wife Pradhnya (PW2) and son Diwakar

used to reside in quarter situated at HUDCO Colony, B-12/228,

which is owned by the deceased. In the said quarter, there are three

rooms. Manoj used to reside in hall and one room along with his

wife and deceased mother in the last room. The appellant used to

reside as tenant. She was residing there as a tenant since last one

year and she used to pay Rs.700/- towards rent.

The deceased orally asked the appellant for vacation of

the room. However, the appellant refused to vacate the room

immediately and, therefore, there was altercation in between the

deceased and the appellant, prior to one month of incident.

3 apeal183.14.odt

According to the report Exh.-20 on 14.07.2012, the

dispute arose in between the deceased and the appellant in between

11.30 to 12.00 pm. The noise of the quarrel was heard by Manoj

and, therefore, he reached there. That time he noticed that the

appellant was pressing her neck and was assaulting her by the fist

blows. In that behalf, Ratna Malode (PW8), made a phone call to the

police. According to the report itself, no injuries were there on the

person of the deceased.

3. After the accident death report was registered, Shantaram

Jadhav (PW11) visited the spot of occurrence. The spot panchanama

was drawn in presence of panchas which is at Exh.-31. He recorded

statement of Manoj and his wife Pradhnya.

4. Jagannath Jankar (PW10) registered the offence on the

basis of the report lodged by Jaipal Singh Ahirirao (PW3) who was

attached to Police Station, Jaripatka and he received the case diary of

ADR No.64/2012 for investigation. In that, he noticed that it is not

an accidental death case but it is the one punishable under Section

302 of the IPC. Jagannath (PW10) registered the FIR as stated

hereinabove. The printed FIR is at Exh.-29 whereas the complaint of

4 apeal183.14.odt

Jaipal Singh Ahirrao (PW3) is at Exh.28. The investigation was

ultimately entrusted to PSI Jayant Shirasao. He recorded the

statement of various witnesses including Ratna Malode (PW8),

Dinesh Dongre (PW5), Shital Meshram (PW7), etc. and filed the

charge sheet.

5. We have heard Ms F. N. Haideri, learned counsel for the

appellant and Mr. T. A. Mirza, learned A.P.P. for the respondent-

State. With their able assistance, we have gone through the notes of

evidence.

6. In view of the post mortem report Exh.-58 and the

evidence of Dr. Mulchand Gedam (PW12), the death of Jaitula was

homicidal one.

7. In order to bring home the guilt of the appellant, the

prosecution has examined Manoj Dongre (PW1), Shital Meshram

(PW7) and Ratna Malode (PW8) as eye witness. Whereas, Dinesh

Dongre (PW5) and Ajay Ramteke (PW6) were examined as the

persons before whom extra judicial confession was made by the

appellant. Narendra Gajbhiye (PW9) and Pawan Kumar Arora

5 apeal183.14.odt

(PW13) were examined as panch witness for recovery of certain

articles whereas Anil Ramteke (PW4) was examined as pancha

witness on spot panchanama.

Eye witness Shital Meshram (PW7) has turned hostile.

Similarly, Ajay Ramteke (PW6) the witness in whose presence extra

judicial confession was made by the appellant has also not supported

the prosecution. The panch witnesses Narendra (PW9) and Pawan

Kumar (PW13) on recovery also did not support the prosecution.

8. Insofar as the extra judicial confession to Dinesh (PW5) is

concerned, from his evidence, it is clear that Dinesh, who is son of

the deceased was residing separately at Sarasvati Nagar, Nagpur. He

received telephone call from Ratna Malode. Therefore, he reached to

the house of his mother. According to the evidence of this witness,

police were already there and the appellant was in the police vehicle

and that time the appellant told him that since his mother has

quarreled with her, she has committed murder of his mother.

From the aforesaid evidence, it is clear that the extra

judicial confession was made when the appellant had been in police

custody in the police van. Though immediately after the incident the

extra judicial confession was made, the statement of this witness

6 apeal183.14.odt

Dinesh (PW5) is recorded on 11.08.2012 by Jayant Shirsat (PW14)

and there is no explanation for such an inordinate delay in view of

the fact that the incident in question occurred on 14.07.2012.

In view of the aforesaid discussion, we are discarding the

extra judicial confession.

9. Manoj Dongre (PW1) is the son of the deceased who has

lodged the complaint Exh.-20. According to his evidence, on the date

and time of the incident, the appellant came from outside and went

towards the room wherein his mother was residing and asked his

mother to open the door. His mother refused to open the door.

Therefore, she extended shouts to his mother that if the door is not

opened then she will break the door. From the evidence of this

witness, it is clear that the mother was residing in one room whereas

this witness was residing in another room adjacent to her. His

evidence is completely silent in respect of the steps which he has

taken on receiving the threats from the appellant.

From his evidence, it is brought on record that on the date

of the incident, it was raining and the lights were off. Following

statements made by this witness in his cross-examination, in our

view, make his evidence as susceptible and does not inspire

7 apeal183.14.odt

confidence;

"(i) It is true that due to dark, I do not know the place where

the accused was present at the time of incident.

(ii) It is true that at the time of incident, due to darkness I

could not identify the assailant who had beaten my mother."

In our view, as observed above, therefore his evidence

does not inspire confidence that he has actually seen the assault as

claimed by him in Exh.-20.

10. Pradhnya (PW2) wife of Manoj (PW1) is completely silent

on the aspect of assault. She only throws light that her mother in

law was lying and accused was standing near her. We cannot forget

that the appellant was also resident of the same house, therefore,

mere presence itself is not sufficient to hold her guilty.

11. Insofar as Ratna (PW8) is concerned, though she claims

that she has seen the actual incident, her statement is recorded on

30.07.2012, which is at belated stage and no explanation is coming

for recording of her belated statement.

According to this witness, she resides in the

neighborhood. She claims that she has seen the incident in the light

8 apeal183.14.odt

and through the window. She further states that she made a phone

call to police and police came to the spot.

Though, this witness claims that she has seen the incident

through the window of the room of Jaitula, the deceased, the spot

panchanama Exh.-31 is completely silent about the same. It does not

show that there was any window to the said room. Further, both the

prosecution witnesses Manoj (PW1) and Pradhnya (PW2) son and

daughter-in-law of the deceased are also completely silent in respect

of the existence of window.

Though, Ratna (PW8) claims that she has seen the

incident through light, she is belied by Manoj (PW3) whose

statements are already reproduced in the present judgment in the

preceding paragraphs. Further, though she claims that she has made

a phone call to police, that is also not corroborated by Manoj since as

per his evidence one Ratnakar Sakhare made phone call to the police.

12. The incident has occurred in the intervening night of

14.07.2015 and 15.07.2015. The Police immediately reached to the

spot. According to Dinesh (PW5), the appellant was shouting that

she has committed murder of the deceased. The complaint, Exh.-20

also shows that it is the appellant who is responsible for the death of

9 apeal183.14.odt

Jaitula in spite of that the crime was registered on 15.07.2012 at

16.30 hrs. and no explanation whatsoever is coming on record for

such a belated recording of the said FIR.

13. The aforesaid discussion leads us to reach to the

conclusion that the prosecution has not proved the case against the

appellant beyond reasonable doubt warranting passing of the

following order.

The appeal is allowed. The order of conviction for the

offence punishable under Section 302 of the Indian Penal Code is set

aside. The appellant is acquitted of the charges charged with. The

appellant is directed to be set at liberty forthwith, if not required in

any other crime.

                          (V. M. Deshpande)                      (B. R. Gavai)



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