Vijayshekhar Yadavrao Bopche vs State Of Maharashtra
2016 Latest Caselaw 2757 Bom

                                                 1




                                                                                     
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                             
                           NAGPUR BENCH, NAGPUR

                             CRIMINAL APPEAL NO.2 OF 2002.




                                                            
       APPELLANT:                  Shri Vijayshekhar s/o Yadavrao Bopche,   
                                   aged about 35 years, Occu: Cultivation,
                                   R/o Pandhari Rengepar, Distt.Gondia.




                                             
                             
                                                : VERSUS :

       RESPONDENT:       The State of Maharashtra,
                            
                                      through Police Station Officer,
                                      Police Station, Gondia, Railway,
                                      Distt.Gondia.    
                                     
      


       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Mr.A.Y.Sharma, Advocate (appointed) for the appellant.
   



       Mrs.Mayuri H.Deshmukh, Addl. Public Prosecutor for the State.
       =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                           CORAM:     V.M.DESHPANDE, J.

                                            DATE:     13st JUNE, 2016.


       ORAL JUDGMENT 

1. By this appeal, the appellant is challenging his

conviction at the hands of learned 2 nd Ad hoc Additional Sessions

Judge, Bhandara in Sessions Trial No.1 of 2000.

2. By the said judgment the appellant is convicted for the

offence punishable under Section 306 of the Indian Penal Code

and on that count the learned Judge of the Court below directed

that the appellant should suffer rigorous imprisonment for three

years and to pay a fine of Rs.3000/- and in default to suffer

rigorous imprisonment for six months.

The appellant is also convicted for the offence

punishable under Section 498-A of the Indian Penal Code and on

that count sentence awarded to him is rigorous imprisonment for

two years and fine of Rs.5000/- and in default of payment of fine

to suffer rigorous imprisonment for six months.

3. The charge was framed against the appellant and his

other four family members under Section 498-A of the Indian

Penal Code and under Section 306 for abetting the wife of the

appellant Gitabai to commit suicide. The learned Judge of the

Court below acquitted the original accused nos.2 to 5, the family

members of the appellant, from both the charges.

4. The prosecution case in nutshell is stated herein under:-

Prosecution witness PW 8 Panjabrao was attached to Gongle

Railway Police Station as A.S.I. in the year 1999. On 26/7/1999

he was on station diary duty. At 6.30 p.m., on the said day, he

received a message from Assistant Station Master, Gongle Railway

Station about the death of a woman and a child. Accordingly, he

registered an accidental death vide Exh.35 under Section 174 of

the Code of Criminal Procedure. On the next day, he along with

police party went to the Railway Station. He conducted inquest

on the dead bodies and also drawn the spot panchanama in the

presence of panchas. Exh.23 is inquest panchanama whereas

Exh.24 is the spot pancnhanama. He then sent dead bodies to

K.T.S. Hospital, Gondia for Post Mortem.

5. On 31st of July, 1999 Daulatram Bisen (PW1) along with

his wife Ramavali (PW 2) came to the police station and lodged

the oral report (Exh.18). He registered the offence vide Crime

No.25 of 1999. The printed FIR is at Exh.19. He also recorded

statement of Daulatram Bisen (PW 1) and Ambris John (PW 3), an

Engine Driver and other witnesses.

6. Exh.18 is the oral report lodged by Daulatram Bisen It

is dated 31st of July, 1999. The said report states that about four

years prior to the date of incident his daughter Gitabai was

married with the appellant. She was blessed with one son Mukul.

It is reported that the other accused persons were father-in-law,

mother-in-law, brother-in-law and sister-in-law of deceased

Gitabai. According to the First Information Report, Latabai

(original accused no.4) used to beat and ill treat Gitabai since last

two and half years. It is also stated in the First Information

Report that all the accused persons used to demand Rs.40,000/-

from her for construction of fish tank and to purchase a Hero

Honda motorcycle. According to the First Information Report, an

amount of Rs.12000/- was paid to the accused persons in small

instalments. It is further stated that in the month of May,

1999 appellant reached Gitabai to the house of the first informant,

that time deceased Gitabai asked first informant that remaining

amount should be paid else her life will be in danger. It is further

stated in the First Information Report that in June, 1999 the

appellant came to village Garra, the home place of the first

informant, that time the first informant told him that he would

give him money after Diwali festival. According to the First

Information Report since the amount was not paid, Gitabai was

mentally and physically harassed and therefore she committed

suicide.

7. After registration of the offence by A.S.I. Panjabrao

Kanhake (PW 8), the further investigation was handed over to

Arvind (PW 5). Said prosecution witness recorded statement of

the witnesses and after completion of usual investigation charge

sheet was filed in the Court of Law.

8. In order to substantiate the charge against all the

accused persons, in all eight witnesses were examined by the

prosecution and also relied upon various documents duly proved

during the course of the trial. The learned Judge of the Court

below acquitted accused Nos.2 to 4 from all the charges, however,

convicted the appellant as observed in the opening paragraph of

the judgment. It is to be noted that the State has not filed any

appeal against acquittal of those accused persons who were

acquitted by the Court below.

9. I have heard Shri A.Y.Sharma, the learned counsel

appointed through Legal Aid and Mrs.Mayuri Deshmukh, the

learned Additional Public Prosecutor for the State. With their

able assistance, I have gone through the notes of the evidence and

record and proceedings.

10. It is the submission of Mr.Sharma, the learned counsel

for the appellant, that the prosecution has failed to prove that

there was any ill-treatment to the deceased on account of any

demand. He submitted that evidence of the prosecution witnesses

on the point of demand is general in nature and on the basis of

very same evidence the learned Judge of the Court below has

acquitted remaining accused. He further submitted that there is

no cogent evidence available on record to show that Gitabai

committed suicide. On the contrary, it is his submission that from

the evidence as available on record the possibility of the accident

cannot be completely ruled out. He, therefore, submitted that

benefit of doubt should be extended in favour of the appellant.

Per contra, learned Additional Public Prosecutor

submitted that in view of the evidence of PW 1 Daulatram, PW 2

Ramvali and PW 4 Tilakchand, the prosecution has established

that there was ill treatment to Gitabai resulting into the act on her

part to finish her life. She therefore submitted that the appeal be

dismissed.

11. Dr. Dilip Paunikar (PW 6) was Medical Officer at K.T.S.

Hospital, Gondia. He conducted Post Mortem on the dead body

and noticed following injuries.

i) There was total amputation of left leg.

ii) Crushed injury right ankle.

iii) Lacerated wound above left thigh 1"x ½" lateral to

left eye 1" x 1". Lacerated would above lip ½" x ½".

iv) Lacerated would forehead left side 1" x ½".

Lacerated wound right side forehead 1" x ½".

Lacerated wound at centre 2" x ½".

Lacerated wound verticle at centre size 2½ " x bone deep.

v) Contusion right shoulder 2" x 2".

On the same side contusion right shoulder 3" x 3". Contusion right lumber region 3" x 2".

Contusion right back lumber region 3" x 3".

vi) Contusion left infra scapular region 3" x 2".

vii) There were multiple contusions on left side chest of size

2" x ½ " and 1"x 1/2" it infra memory region. They were 10 in number.

He proved the Post Mortem report (Exh.29). From the evidence of

Dr.Paunikar, the Autopsy Surgeon, and in view of the injuries

mentioned herein above, it is clear that Gitabai died unnatural

death.

12. According to the prosecution, due to the ill treatment on

account of demand to deceased Gitabai, she committed suicide by

jumping in front of the running railway. On the contrary, it is the

submission of the learned counsel for the appellant that the

possibility of the accident is not completely ruled out.

In that view of the matter, firstly, it will have to be seen

as to whether the prosecution is successful in proving the charge

under Section 498-A of the Indian Penal Code against the

appellant. Section 498-A of the Indian Penal Code reads as

under :-

"498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may

extend to three years and shall also be liable to fine.

Explanation.- For the purpose of this section, "cruelty" means -

(a) any wilful conduct which is of such a nature as

is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or

health (whether mental or physical) of the

woman; or

(b) harassment of the woman where such

harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is

on account of failure by her or any person related

to her to meet such demand.

In that view of the matter, it is obligatory on the part of the

prosecution to prove that the deceased was subjected to cruelty to

such an extent that deceased was required to take extreme step.

13. To substantiate the charge against the appellant under

Section 498-A of the Indian Penal Code, evidence of three

witnesses is available. They are (i) PW 1 Daulatram, father of the

deceased, (ii) PW 2 Ramvali, mother of the deceased and (iii)

PW 4 Tilakchand, the maternal uncle of the deceased.

14. The evidence of PW 4, the maternal uncle of the

deceased, shows that for a period of one and half year Gitabai was

treated nicely, however, thereafter the appellant has asked PW 1

Daulatram to pay Rs.40,000/- for purchasing Hero Honda and for

constructing fish tank. Thus, Tilakchand is very specific in his

evidence that it is only the appellant who has demanded

Rs.40,000/-. In this context, if the First Information Report

(Exh.18) and the evidence of PW 1 Daulatram, from whom the

amount was demanded as per the evidence of Tilakchand, are to

be believed, the FIR and evidence of PW 1 Daulatram is

completely silent that an amount of Rs.40,000/- was demanded by

the appellant alone. On the contrary, as per the recitals in the

First Information Report and the evidence of PW 1 Daulatram all

the accused persons asked Gitabai to bring Rs.40,000/- for

purchasing motorcycle and for construction of fish tank.

Therefore, there is a variance in between evidence of these two

witnesses.

15. Secondly, it is the evidence of Tilakchand (PW 4) that

on 27th of February, 1999 the appellant came along with Gitabai to

his village for attending 13th day function and on 28th of February,

1999 Gitabai went to the house of his grand-father and informed

him about the ill treatment and demand of dowry worth

Rs.40,000/-. It is the further evidence of Tilakchand that his

grand-father called him, one Gajendra Tembhare and Nipatram

Tembhare and told them about the demand of dowry made by the

appellant. It is the further claim of Tilakchand from witness box

that thereafter he called appellant and PW 1 Daulatram and at

that time he has asked Daulatram as to whether he can pay

Rs.40,000/- to the appellant to which Daulatram shown his

inability.

The evidence of Tilakchand in that behalf cannot be

accepted. Even according to the evidence of Tilakchand, the

demand was not made in his presence. Further, Gajendra

Tembhare and Nipatram Tembhare in whose presence it was

disclosed to Tilakchand by his grand-father about the demand of

appellant are also not examined.

Further, Daulatram is completely silent from the witness

box and also the First Information Report does not contain this

aspect. Thus, there is no corroboration on this vital issue from

Daulatram or his wife PW 2 Ramvali. It is to be noted that the

statement of Tilakchand is recorded belatedly. This clearly shows

that PW 4 Tilakchand is an got-up witness and necessarily his

evidence is required to be kept aside to reach to the conclusion in

respect of the offence punishable under Section 498-A of the

Indian Penal Code.

16. Evidence of father and mother of deceased if perused

shows that it is most general in nature. Their evidence would

show that every time it is the appellant who has taken back the

deceased when she visited her parental house. It is not the case

of the parents of Gitabai that at any point of time Gitabai resisted

and/or shown reluctance to go to the matrimonial house.

According to the evidence of mother Ramvali, during the last stay

of Gita at her parental house was for about one month.

Thereafter appellant came and took her back. What is important to

note that the evidence of Ramvali is completely silent that during

this period it was disclosed to her that appellant is demanding the

amount and on that count she is receiving ill treatment from the

appellant and his other family members.

It is stated by the first informant that in June, 1999

appellant came to his house at Garra for taking Gitabai along with

him. The First Information Report is silent that, that time there

was any demand from the appellant. Though PW 1 Daulatram has

claimed that he has paid Rs.12000/- to the appellant, his evidence

is san of any detail. Therefore, such bald statement cannot be

accepted.

17. Looking to the nature of the evidence in respect of the

cruelty, this Court is of the view that the relevant prosecution

witnesses are most general in nature. Those were made against

the other accused persons also and the said evidence was not

accepted viz-a-viz those accused persons. Therefore, I am of the

considered view that the prosecution has utterly failed to prove

the charge under Section 498-A of the Indian Penal Code even

against the appellant and therefore, he is required to be acquitted

from the said charge.

18. There is nothing available on record that Gita was

suffering from any other ailment so as to commit suicide. If she

was not subjected to any cruelty whatsoever in nature, there was

no reason to this young lady to commit suicide.

19. PW 3 is Ambris John. He is an Engine Driver. Before

declaring him hostile he stated before the Court that when his

train was reaching to Gongle Railway Station, one woman along

with a child was trying to cross the railway line but she could not

cross. In the cross-examination at the hands of APP, he stated

that the woman jumped in front of the running train. Again in

the cross-examination at the hands of the learned counsel for the

accused persons it is stated by him that the woman met with an

accident while she was crossing the railway line. The nature of his

evidence only shows that he is unable to point out as to whether

she jumped or was trying to cross railway line.

20. PW 1 Daulatram Bisen has admitted in his cross-

examination that railway track is behind the house of the accused

and adjacent to the field of accused. The contemporaneous

document (Exh.24), the spot panchanama, recites that the field of

appellant Vijayshekhar Bopche is visible towards West of the

railway line. Thus, it is clear that the place is just near to the

agricultural field of the appellant.

PW 3 Ambris John was required to intimate to the

Railway Station Authorities. PW 3 has stated in his evidence that

in Exh.22, the Memo, he did not specifically mention that a

woman along with her child jumped in front of the running train.

If really Gita had made a jump in front of the running train then

the said aspect would not have been missed in the Memo (Exh.22)

which was given immediately after the occurrence. In that view

of the matter and looking to the fact that the prosecution has not

proved the charge under Section 498-A of the Indian Penal Code,

it is crystal clear that there is a possibility of accident. Further,

there is no clear evidence that deceased jumped before train. The

upshot of the aforesaid discussion leads me to pass following

order.

ORDER

Criminal Appeal No.2 of 2002 is allowed.

Judgment and order of conviction convicting the

appellant for the offence punishable under Sections 306 and 498-

A of the Indian Penal Code is hereby set aside. The appellant is

acquitted of the said offences.

Bail bonds shall stand cancelled.

Shri A.Y.Sharma, learned counsel appointed for the

appellant by the legal Aid Committee shall be entitled for

remuneration of Rs.5000/- (Rupees Five thousand only).

                              ig                                      JUDGE.
                            
       chute