Subhash Purandas Pawar vs State Of Maha
2016 Latest Caselaw 2843 Bom

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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 

                                   BENCH AT AURANGABAD




                                                  
                          CRIMINAL APPEAL NO.93 OF 2003




                                                 
     Subhash s/o Purandas Pawar,
     Age-26 years, Occu:Nil,
     R/o-Mordal Tanda, Dhule,




                                         
     Dist-Dhule.
                                     ...APPELLANT 
                                     (Orig. Accused) 
                             
            VERSUS             

     The State of Maharashtra  
                            
                                     ...RESPONDENT

                          ...
        Mr. N.S. Ghanekar Advocate for  Appellant.
      

        Mr. R.V. Dhasalkar, A.P.P. for Respondent. 
                          ...       
   



                   CORAM:   A.I.S. CHEEMA, J.





        DATE OF RESERVING JUDGMENT  : 7TH JUNE,2016.  

        DATE OF PRONOUNCING JUDGMENT: 15TH JUNE, 2016.
                                      





     JUDGMENT :

1. The Appellant - original accused has been

convicted in Sessions Case No.36 of 2002 by

Additional Sessions Judge, Jalgaon vide Judgment

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dated 16th January 2003, under Section 498-A of

the Indian Penal Code, 1860 ("IPC" in brief) and

has been sentenced to suffer rigorous imprisonment

for three years and to pay fine of Rs.2000/-. In

default of fine, he has been directed to suffer

further rigorous imprisonment for six months. The

accused came to be acquitted of offence under

Section 306 of IPC with which also he was charged.

2. In brief, the case of the prosecution is

as follows:

A). Contents of F.I.R. show that Sunita, the

daughter of PW-1 Changdeo Tulshiram Rathod (here

after referred as "victim") was married with the

accused on 18th April 2000. After marriage, she

went to reside with the accused at Mordad Tanda.

Later on accused was appointed as teacher at

Akadikheli, Tq-Nandurbar and the accused started

residing at place called Mhaswad-Pimpri. On

holidays he used to come down to Mordad Tanda. For

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some time victim was treated well. In April 2001

victim came to the place of her father,

complainant PW-1 Changdeo at Walthan Tanda. She

told her father that her husband is required to go

up and down between Mhaswad-Pimpri and Akadikheli

and has been asking for Rs.50,000/- to buy

motorcycle. She had come to her father for 2-3

times but did not ask for money and went back,

because of which the accused had beaten her and

was giving her physical and mental ill-treatment.

The complainant explained to her and sent her

back. Later on she came for delivery and at that

time also she told about this fact. She delivered

a son (Saurabh - another victim). When the accused

came to take back victim Sunita, he demanded money

from the complainant to buy motorcycle.

Complainant told him that he does not have the

money. As such the accused beat victim at his

house. One Kantilal Rathod was present at that

time. On 24th December 2001 victim Sunita along

with victim Saurabh and accused came to the place

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of the complainant Changdeo. On 25th December 2001

there was programme of "Nawas". Thereafter accused

again asked for Rs.50,000/- to purchase motorcycle

and picked up argument. Accused then started to go

with the victim to Mordad Tanda. At that time

complainant sent his son Sandeep PW-2 along with

them. After going back home, accused again beat

victim. On 26th December 2001 PW-2 Sandeep along

with victim Sunita and Saurabh started to come by

train to Walthan. Accused was also with them. At

that time victim jumped from the running train and

fell below bridge. In such act of hers, she and

the infant Saurabh died. Thus the complaint was

filed vide Exhibit 11.

B). Before the complaint was filed on 27th

December 2011, on 26th December 2001 after the

incident, Kotwal of village Jamada had filed

Accidental Death (A.D.) Report (Exhibit 13) and

A.D. 59 of 2001 was registered by PW-3 Yogiraj.

PW-3 Yogiraj had gone to the spot and did inquest

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panchnamas Exhibit 14 and 15 of the victims and

spot panchnama Exhibit 16 was recorded. When FIR

Exhibit 11 was filed, the offence came to be

registered on 27th December 2001 in the afternoon.

The offence was investigated by PW-3 A.P.I.

Yogiraj and after investigation, charge-sheet came

to be filed.

C).

Charge was explained to the accused under

Section 498-A and 306 of IPC. He pleaded not

guilty. His defence is of denial.

3. In the trial Court, the prosecution

examined complainant PW-1 Changdeo and his son

PW-2 Sandeep. The investigating officer PW-3

Yogiraj was also examined. The documents of AD

Report (Exhibit 13), inquest panchnamas Exhibit 14

and Exhibit 15, and spot panchnama Exhibit 16 were

admitted by the accused and thus the documents

were exhibited. The post-mortem reports were also

not disputed and are at Exhibit 17 and Exhibit 18.

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4. The trial Court considered the evidence

which was brought and recorded findings that the

prosecution failed to prove that the victim had

committed suicide or that the accused had abetted

the committing of suicide by the victim Sunita. It

also held that it was not proved that Sunita was

subjected to cruelty of such a nature which would

drive her to commit suicide or to cause grave

injury to herself. The trial Court, however, held

that between April 2001 to 26th December 2001

victim Sunita had been harassed by the accused

with a view to coerce her to meet unlawful demand

of Rs.50,000/-. In support of such findings, trial

Court recorded reasons and while trial Court

acquitted the accused for offence under Section

306 of IPC, it convicted the accused under Section

498-A of IPC.

5. I have heard learned counsel for the

Appellant-accused. According to the learned

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counsel, the trial Court found that the death of

the victim Sunita and infant Saurabh was due to

accidental fall. According to him, the evidence

did not show that the victim had jumped from the

train. Rather it was a case of accidental fall.

According to the counsel, when Section 306 of IPC

was held as not proved, the evidence of PW-1 and

PW-2, who were interested witnesses, regarding

what Sunita had told them, was not admissible and

on the basis of such evidence the trial Court

could not have held the accused guilty. The

learned counsel relied on the case of Bhairaon

Singh vs. State of M.P., AIR 2009 Supreme Court,

2603. Learned counsel submitted that if what

Sunita informed her father and brother was

ignored, what remains is evidence of the father

that the accused had at times asked for

Rs.50,000/- to buy motorcycle. According to the

counsel, only because money was asked would not be

reason to conclude that the same was being asked

as dowry or to brand it as illegal. According to

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him, PW-1 Changdeo did not depose that the victim

was harassed because the amount was not paid. The

evidence of PW-2 Sandeep claiming that the victim

was beaten at the house of her parents when the

amount was not paid, was not corroborated by PW-1

Changdeo. There was also delay in filing F.I.R.

Thus, according to the counsel, there was no

sufficient evidence to hold the accused guilty.

6. Against this, the learned A.P.P.

submitted that the trial Court itself in the

Judgment referred to the evidence of PW-2 Sandeep

along with the recitals in the spot panchnama

which showed that on 26th December 2001 itself

PW-2 Sandeep had told the police official that the

victim had committed suicide by jumping from the

train and still the police did not take down his

statement as FIR and thus delay in filing of the

FIR till 27th December 2001 was explained and

could not be said to be fatal to the prosecution.

According to the learned A.P.P., the trial Court

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has given sufficient reasons for holding the

accused guilty under Section 498-A of IPC. There

was evidence that the accused was asking for money

from his father in law. Thus, according to the

learned A.P.P., the Appeal deserves to be

dismissed.

7. Before discussing the evidence, it would

be appropriate to refer to the question which had

come up for consideration before the Hon'ble the

Supreme Court in the matter of Bhairaon Singh vs.

State of M.P. (supra). The question recorded by

the Hon'ble Supreme Court in the above Judgment in

Para 2 is as under:-

"2. The question that arises for consideration in this appeal by special leave is : in a case where accused has been acquitted of the offence punishable under Sections 304-B and 306, IPC, and the death of wife is neither homicidal nor

suicidal but accidental, whether the oral evidence of witnesses about what the deceased had told them against the accused about the treatment meted out to her is admissible under Section 32(1) of the Evidence Act to sustain conviction under Section 498-A IPC?"

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. The Hon'ble Supreme Court then dealt with

the provisions under Section 32(1) of the Indian

Evidence Act, 1872 and the concerned law on the

subject and after referring to the evidence of the

brothers of the victim in that matter, observed in

Para 11 as under:

"11. The moot question is: whether the

statements attributed to the deceased could be used as evidence for entering upon a finding that the accused subjected Ranjana Rani @ Raj Kumari to cruelty as contemplated under

Section 498-A, IPC. In our considered view, the evidence of PW-4 and PW-5 about what the deceased Ranjana Rani @ Raj Kumari had told them against the accused about the torture and harassment is inadmissible under Section 32(1)

of the Evidence Act and such evidence cannot be looked into for any purpose. Except Section

32(1) of Indian Evidence Act, there is no other provision under which the statement of a dead person can be looked into in evidence. The statement of a dead person is admissible

in law if the statement is as to the cause of death or as to any of the circumstances of the transactions which resulted in her death, in a case in which the cause of death comes into question. What has been deposed by PW-4 and PW-5 has no connection with any circumstance

of transaction which resulted in her death. The death of Smt. Ranjana Rani @ Raj Kumari was neither homicidal nor suicidal; it was accidental. Since for an offence under Section 498-A simpliciter, the question of death is not and cannot be an issue for consideration, we are afraid the evidence of PW-4 and PW-5 is hardly an evidence in law to establish such

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offence. In that situation Section 32(1) of

the Evidence Act does not get attracted."

8. In view of the above observations of the

Hon'ble the Supreme Court, it is clear that what

victim told PW-1 and PW-2 against the accused

about the alleged demand and harassment would be

inadmissible evidence under Section 32(1) of the

Indian Evidence Act and the said evidence cannot

be looked into as here also death appears to be

accidental. In the present matter, the trial Court

recorded reasons and in Para 19 of the Judgment

came to the conclusion that the prosecution had

failed to disclose existence of any act which

would prompt victim Sunita to end her infant son's

life. Trial Court also concluded that

uncorroborated evidence of PW-2 Sandeep that the

victim jumped from the train and committed suicide

could not be believed. Trial Court found that

probability of accidental death of Sunita from the

door of the train cannot be ruled out. In Para 20

of its Judgment, trial Court held that the

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evidence adduced by the prosecution was not

sufficient to come to the only conclusion that the

victim Sunita committed suicide when the train was

passing over bridge. The prosecution has not

challenged these findings or the acquittal under

Section 306 of IPC by filing Appeal. Reasons

recorded by the trial Court for acquittal under

Section 306 of IPC appear to be in order. Thus

suicide has not been proved. This being so, I have

to proceed further to see if there is acceptable

evidence under Section 498-A of IPC.

9. The trial Court discussed the evidence

relating to cruelty from Para 21 of its Judgment.

It discussed the evidence of PW-1 and PW-2 and in

the process, discussed the evidence as to what the

victim had been telling regarding the alleged

cruelty. Keeping in view the Judgment in the

matter of Bhairaon Singh vs. State of M.P.,

discussed above, I proceed to refer to the

evidence of PW-1 and PW-2, but I will ignore what

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these witnesses stated as far as regards

information received from victim Sunita before the

incident relating to the train took place.

10. The evidence of PW-1 Changdeo earlier

refers to the marriage taking place and then there

is reference regarding what Sunita had been

telling. Then the evidence is that after delivery

of Sunita, accused had come to the house of PW-1

Changdeo and accused had told PW-1 that he

required money to purchase motorcycle. According

to PW-1, he told accused that he does not have

money and he requested accused to take victim

Sunita with him. PW-1 deposed that accused picked

up quarrel with him and told victim Sunita to

immediately proceed along with him. PW-1 has then

deposed that after about a month of delivery of

Sunita, she had gone to the house of the accused.

Later on, on 24th December 2001 she came to the

house of this witness along with child and the

accused. On 25th December 2001 it appears that

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there was a ceremony of the Nawas of the child of

the accused at the house of PW-1 Changdeo. The

evidence shows that for such Nawas (ceremony to

fulfill promise made to deity on fulfillment of

wish made earlier), the accused had arranged for

goat. According to PW-1, after the ceremony the

accused again asked for Rs.50,000/- for purchasing

motorcycle immediately. He deposed that he sent

the victim Sunita along with the accused, and his

son had also gone to the house of the accused.

Thus, regarding the alleged demand made by the

accused, this is the evidence of PW-1.

11. Now, if the evidence of PW-2 Sandeep is

considered, his evidence also refers to what

Sunita had been telling. He then deposed that

victim Sunita had come for delivery to their house

and after the delivery, the accused came.

According to this witness, accused told parents of

PW-2, to provide him money and his father (PW-1)

told accused that he is not having money. This

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witness deposed that while at his house, the

accused beat victim Sunita. The further evidence

of PW-2 is that after the Nawas on 25th December

2001, the accused again demanded money from

parents of PW-2 and that accused beat the victim

and also threatened father of the witness. The

learned counsel for the Appellant-accused has

rightly submitted that although PW-2 Sandeep

claims that on both the occasions when the accused

was at the house of his father-in-law and made

demand, accused beat the victim, the complainant

PW-1 himself did not depose that the accused had

beaten victim Sunita in the house of her own

parents or that accused had threatened the

father- in-law. PW-2 in fact in the cross-

examination even claimed that victim Sunita had

been beaten in presence of her parents. However,

PW-1 did not depose that the victim was beaten by

the accused in his presence.

12. Looking to the above evidence, the only

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material which was brought on record by the

prosecution which is admissible evidence, is that

the accused had made the demand of money. PW-1

claimed that the accused had, in this context

quarreled, but no particulars of the alleged

quarrel are mentioned by PW-1. No material has

been brought that for non-fulfillment of such

demand the victim was subjected to any particular

harassment in the presence of PW-1 and PW-2. This

being so, after ignoring the inadmissible

evidence, the evidence which can be relied on, is

not sufficient to conclude offence under Section

498-A of IPC. I thus find that I am not able to

maintain conviction as recorded by the trial

Court. The Judgment of the trial Court needs to be

interfered with as not maintainable. The same is

substantially based on inadmissible evidence.

13. For the reasons recorded above, I pass

the following order:-

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O R D E R

(I) The Appeal is allowed.

(II) The impugned Judgment and order of

conviction and sentence as passed against

the Appellant - accused under Section 498-

A of the Indian Penal Code, 1860 is

quashed and set aside.

(III) The Appellant - accused is

acquitted of the offence under Section

498-A of the Indian Penal Code, 1860.

(IV) The bail bonds of the Appellant are

cancelled.

[A.I.S. CHEEMA, J.] asb/JUN16