Bombay High Court
Bharat Sahebrao Magar And Another vs State Of Maharashtra on 29 March, 2016
Bench: I.K. Jain
This Order is modified/corrected by Speaking to Minutes Order dated 04/04/2016
28.CRAP.464.01.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 464 OF 2001
1. Bharat Sahebrao Magar
Age: 24 years, Occu.: Agriculture,
R/o Magar Savangi, Tq. Pathri,
Dist. Parbhani.
2. Prayagbai Sahebrao Magar
(Appeal abated as against Appellant No.2
as per Court's order dated 26.02.2016) ..APPELLANTS
VERSUS
State of Maharashtra
(Copy served on the Public Prosecutor,
High Court, Bench At Aurangabad) ..RESPONDENT
....
Mr. S.J. Salunke, Advocate for appellant.
Mr. D.R. Kale, APP for respondent.
....
CORAM : INDIRA K. JAIN, J.
DATED : 29th MARCH, 2016
ORAL JUDGMENT :
. This appeal takes an exception to the judgment and order
dated 31.10.2001 passed by the learned Ad-hoc Additional Sessions
Judge, Parbhani in Sessions Case No. 39/1998. By the said judgment
and order the learned Additional Sessions Judge convicted both the
accused of the offences punishable under Sections 306, 498A read with
34 of the Indian Penal Code and sentenced each of them as under -
S.S.DESHPANDE 1 / 8
This Order is modified/corrected by Speaking to Minutes Order dated 04/04/2016
28.CRAP.464.01.doc
Accused No.1 Bharat Sahebrao Magar :
Conviction under Sentence
Section
306 Rigorous Imprisonment for seven days and
fine of Rs.2,000/- in default Rigorous
Imprisonment for six months.
498-A Rigorous Imprisonment for two years and
fine of Rs.1,000/- in default Rigorous
Imprisonment for three months.
Accused No.2 Prayagbai Sahebrao Magar :
Conviction under
Section
ig Sentence
306 Rigorous Imprisonment for three years and
fine of Rs.1,000/- in default Rigorous
Imprisonment for three months.
498-A Rigorous Imprisonment for one year and fine
of Rs.1,000/- in default Rigorous
Imprisonment for three months.
2. Appellant No.2 died during pendency of appeal and so appeal
at the behest of Appellant No.2 abated.
3. The prosecution case in brief can be stated as under:
Accused No.1 Bharat is the husband of Deceased Saraswati.
Their marriage was performed in March 1995. Saraswati died on
09.12.1995 due to poisoning at the house of Accused.
S.S.DESHPANDE 2 / 8
This Order is modified/corrected by Speaking to Minutes Order dated 04/04/2016
28.CRAP.464.01.doc
4. Eknath Nagorao Khapare is the Complainant. He is resident
of village Redaj, Tq. Jintur, Dist. Parbhani. On 09.12.1995 itself he
lodged FIR with Manwat Police Station alleging therein that his daughter
Saraswati was harassed by accused persons as she was not good
looking and not liked by Accused No.1. Saraswati disclosed about
harassment and beating to her parents during her visits to her maternal
place. On 09.12.1995 Kashinath son of sister of complainant informed
him that Saraswati was admitted to hospital at Manwat. On receiving
message complainant, his son and other relatives rushed to the hospital.
They found Saraswati dead. He then stated that due to continuous ill-
treatment at the hands of accused persons his daughter was compelled
to commit suicide and accused abetted commission of suicide by
Saraswati. On the basis of the report Crime No. 131/1995 was
registered against the accused. Investigation was conducted. It
appears that before FIR A.D. No. 45/1995 was registered and inquiry
was made in A.D.. After completing investigation, charge sheet was
submitted before learned Judicial Magistrate First Class, Pathri who in
turn committed the case for trial to the Court of Sessions.
5. Charge was framed against the accused vide Exhibit 8. They
pleaded not guilty and claimed to be tried. It appears from the cross
examination of witnesses that accused tried to raise three fold defence
S.S.DESHPANDE 3 / 8
This Order is modified/corrected by Speaking to Minutes Order dated 04/04/2016
28.CRAP.464.01.doc
(i) Saraswati was suffering from Epilepsy. (ii) Marriage was performed
against her desire and (iii) The death in question might be accidental.
6. To substantiate the guilt of accused, prosecution examined in
all four witnesses. After considering the evidence of prosecution
witnesses, Trial Court found that deceased was being ill-treated by
accused and so she committed suicide. It was further held that accused
were responsible for abetting the deceased to commit suicide. In
consequence accused were convicted as indicated in paragraph no.1
above. Being aggrieved by the judgment and order of conviction present
appeal has been preferred.
7. According to appellant there is no sufficient evidence to prove
the offence punishable under Section 498A of the Indian Penal Code
and if charge under Section 498A of Indian Penal Code fails then
Accused could not be convicted for the offences punishable under
Sections 498A and 306 of the Indian Penal Code. Learned Counsel for
appellant submitted that accused raised probable defence which could
falsify the case of prosecution and prays that in the absence of clinching
evidence judgment and order of conviction and sentence be set aside.
8. On the other hand learned APP contended that prosecution
has proved that death occurred within 9 months of marriage. Through
S.S.DESHPANDE 4 / 8
This Order is modified/corrected by Speaking to Minutes Order dated 04/04/2016
28.CRAP.464.01.doc
the evidence of father prosecution could also prove that Saraswati was
ill-treated by the accused and this would attract presumption under
Section 113A of the Indian Evidence Act. Learned APP submitted that
accused has not rebutted presumption under Section 113A and no
interference is warranted in this appeal.
9. With the assistance of learned Counsel for the parties this
Court has gone through the evidence of prosecution witnesses. PW 1
Dr. Kankute was attached to Rural Hospital, Manwat as medical officer.
On 09.12.1995 on receiving the dead body of Saraswati he performed
Post Mortem and opined cause of death due to poisoning. In cross
examination Dr. Kankute admitted that if person accidentally consumes
poison result and symptoms given in the Post Mortem report Exhibit 19
would be the same.
10. Accused has not disputed cause of death. What is disputed
by him is the mode of death. He submits that Saraswati might have
consumed poison accidentally. It is significant to note that incident
occurred on 09.12.1995 in the wee hours of the day. Inquest
panchnama shows that Saraswati was found dead at 4.30 a.m. Spot
panchnama does not indicate that any article containing poison was
found on the spot though it mentions that there was smell of poison or
S.S.DESHPANDE 5 / 8
This Order is modified/corrected by Speaking to Minutes Order dated 04/04/2016
28.CRAP.464.01.doc
kerosene in the room. Prosecution could not prove mode of death as
suicidal by cogent and convincing evidence.
11. On cruelty prosecution relied upon evidence of PW 2
Complainant Eknath Khapare father and PW 3 Kundalik Khapare uncle
of deceased. It would not be out of place to mention here that evidence
of PW 3 Kundalik Khapare has not been relied upon by the Trial Court
and this Court does not find any reason to take a view different than
taken by Trial Court regarding appreciation of evidence of PW 3.
12. If evidence of PW 3 is discarded then remains the evidence of
Complainant PW 2 Eknath Khapare. According to him at the time of
marriage dowry of Rs.55,000/- and 121/2 tolas gold was given. He stated
that after marriage his daughter Saraswati visited his house 2-3 times.
At the time of Diwali she disclosed to him that her husband and mother-
in-law used to beat her. Her husband was saying that she was not liked
by him and on that count she was being ill-treated by her husband and
mother-in-law.
13. The crucial question here is whether sole testimony of PW 2
Eknath Khapare could be relied upon. According to investigating officer
PW 4 API Sangram Sangle he enquired from neighbours but they did not
S.S.DESHPANDE 6 / 8
This Order is modified/corrected by Speaking to Minutes Order dated 04/04/2016
28.CRAP.464.01.doc
disclose regarding any ill-treatment to Saraswati. It is pertinent to note
that Kashinath Magar is the son of sister of complainant residing in the
same vicinity in which Saraswati and her husband were residing.
Investigating officer also enquired from Kashinath regarding harassment
to Saraswati but he too did not disclose anything to him. With these
admitted facts it is difficult to rely upon the sole testimony of Complainant
Eknath Khapare.
14.
Trial Court has observed that evidence of complainant is
consistent with FIR Exhibit 22. Needless to state that FIR cannot be a
substantive evidence and it can be used at the most for corroboration.
In the absence of independent corroboration this Court finds that it would
be risky to place reliance on the sole testimony of complainant.
15. In the light of the above and for want of legal, cogent and
convincing evidence this Court is of the view that judgment and order of
conviction and sentence needs to be interfered. Hence following order:
ORDER
I) Criminal Appeal No. 464 of 2001 is allowed.
II) Judgment and order of conviction and sentence in
Sessions Case No. 39/1998 passed by the learned
S.S.DESHPANDE 7 / 8
This Order is modified/corrected by Speaking to Minutes Order dated 04/04/2016
28.CRAP.464.01.doc
Ad-hoc Additional Sessions Judge, Parbhani dated
31.10.2001 is hereby quashed and set aside.
III) Appellant is acquitted of the offences punishable
under Sections 306, 498A read with 34 of the
Indian Penal Code.
IV) The bail bonds of appellant/accused shall stand
cancelled forthwith.
( INDIRA K. JAIN, J. )
S.S.DESHPANDE 8 / 8
