Sameer Changdev Kadam vs The State Of Maharashtra
2017 Latest Caselaw 5836 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                           CRIMINAL APPEAL NO.77 OF 1999

The State of Maharashtra                                ...Appellant
               Versus 
1. Subhash Shankar Phadtare
2. Shankar Dagadu Phadtare
3. Sou. Pingubai Shankar Phadtare
4. Sou. Malan Ankush Berge
5. Vasant Shankar Phadtare
6. Sou. Sunita Subhash Phadtare 

Nos.1 to 5 R/o. Vardhangad, Tal.- 
Khatav.
No. 6. R/o. Pathar Stataion,
Taluka.Koregaon, District-Satara.                     ...Respondents
                                  .....
Mr. Prashant Jadhav, APP for the Appellant-State.
Mr. Shailesh Chavan for the Respondent Nos.4 to 6.

 
                                    CORAM : SMT. ANUJA PRABHUDESSAI, J. 

DATED: 10th AUGUST, 2017.

JUDGMENT:-

By this appeal the State has challenged the judgment dated

14.10.1998 in Sessions Case No.62 of 1994 whereby the learned VI th

Additional Sessions Judge, Satara, acquitted the accused of offences

punishable under sections 498 A, 306 read with 34 of the Indian Penal

Code.

2. At the outset, it may be mentioned that Respondent Nos.1,

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2 and 3 have expired during the pendency of this appeal and the

proceedings against the Respondent Nos.1, 2 and 3 have abetted.

Present appeal is therefore, restricted only to the acquittal of the

Respondent Nos.4, 5 and 6.

3. The brief facts necessary to decide this Appeal are as

under:-

One Shaila, the daughter of PW1-Shankar Godse was

married to Subhash Phadtare(deceased) Respondent No.1. The

marriage of Shaila and Subhash was solemnised on 9.6.1990. The

deceased Respondent Nos.2 and 3 were the parents of Subhash

whereas the Respondent Nos.4 and 6 are his sisters and the

Respondent No.5 is brother of said Subhash. After the marriage said

Shaila was residing at her matrimonial house at Vardhangad. Said

Shaila went missing from 10.8.1993. Her body was retrieved from a

public well on 14.8.1993. Inquest panchanama was drawn and the

body was referred for the post mortem. The post mortem report

reveals that death of Shaila was due to drowning.

4. The report at Exhibit-22 was lodged alleging that Subhash

and his family members had demanded dowry and had subjected

Shaila to cruelty. PW1-Shankar Godse alleged that Shaila had

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committed suicide and that the husband of Shaila and his family

members had abetted the commission of suicide. Based on the said

FIR, the Investigating Officer PW-5 registered crime at Exhibit-22 for

offences punishable under Sections 304 (B), 306, 498 A, read with 34

of the Indian Penal Code. He conducted spot panchanama at Exhibit-

26 and recorded statements of the witnesses. After conclusion of the

investigation, he filed a charge sheet against these Respondents as well

as the deceased Respondents for offences under sections 304 (B), 306

and 498 A read with 34 of the IPC.

5. The case was committed to the Court of Sessions. The

learned Sessions Judge framed charge against the Respondents for

offences punishable under sections 304 (B), 306 and 498 A read with

34 of the IPC. Charge was explained to the Respondents. The

Respondents pleaded not guilty and claimed to be tried.

6. The prosecution in support of its case examined PW1-

Shankar Godse, father of the deceased, PW2- Dhondiram, uncle of the

deceased and PW4-Suresh Shankar Godse, brother of the deceased.

Prosecution also examined PW3-Sampat Sawant, who was a witness to

spot panchanama and the PW5-Vishnu Jagtap, Investigating Officer.

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7. The statement of the accused was recorded under section

313 of the Code of Criminal Procedure (for short 'Cr.P.C.'). The defence

of the accused was that of total denial. The accused also examined two

witnesses viz. DW1- Samindra and DW2-Dilip Ghorpade.

8. After appreciating the evidence on record, the learned

Additional Sessions Judge, Satara acquitted the accused of the offences

under Sections 498 A and 306 of the IPC. Aggrieved by the said order

the state has preferred this Appeal.

9. Heard Mr. Prashant Jadhav, the learned APP for the

Appellant-State and Mr. Shailesh Chavan, the learned counsel for the

Respondent Nos.4 to 6. I have perused the records and considered the

arguments advanced by the learned counsel for the respective parties.

10. This being the appeal against the acquittal, it would be

advantageous to refer to the case of Aruvelu & Anr. vs. State

represented by the Public Prosecutor dt. 7th October, 2005, wherein

the Apex Court has held as under:-

"39. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This

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Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:

1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.

3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

40. This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009(11) SCALE

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699 again examined judgments of this Court and laid down that "An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases."

41. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

11. I propose to decide this Appeal keeping in mind the

principles laid down in the aforesaid decision of the Apex Court.

12. The evidence on record reveals that Shaila was married to

Subhash, deceased accused No.1 on 9.6.1990. After her marriage, she

was residing at her matrimonial house at Vardhangad alongwith her

husband-Subhash and his family members. Said Shaila was missing

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from 11.8.1993 and her dead body was retrieved from a public well,

which is in the vicinity of her matrimonial house. The post mortem

report at Exhibit-18 reveals that the death of Shaila was due to

asphyxia as a result of drowning. The evidence thus indicates that

Shaila had died an unnatural death within three years of marriage.

The question is whether the death of Shaila was a dowry death or

whether accused had abetted the suicide.

13. The case of the prosecution is that Shaila had committed

suicide because she was subjected to ill treatment and cruelty by her

husband and his family members. The case of the prosecution rests

mainly on the evidence of PW1, PW2 and PW4 i.e. the family members

of the deceased.

14. PW1 is the father of the deceased Shaila. The evidence of

PW1-Shankar Godse indicates that after one year after the marriage

Shaila alongwith her husband Subhash came to her parental house at

Vaduj. PW1-Shankar Godse has deposed that Subhash demanded

Rs.40,000/- for purchasing tempo. He claimed that he was unable to

meet the said demand. PW1-Shankar Godse has further deposed that

Shaila and her husband Subhash had also demanded money from

Dhondiram for purchasing a tempo and said Dhondiram had not paid

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the said money. He has stated that about six months later he learnt

that Shaila had consumed B.S.C. Powder. He has further stated that

thereafter about a month and half after PW1-Shankar had come to

Vaduj and that she had told him that Subhash and family members of

her husband were ill-treating her due to non payment of Rs.40,000/-.

He claims that Shaila was not given meals in time and she was also

given stale food and was asked to do work as a labourer.

15. PW2-Dhondiram, uncle of the deceased Shaila has deposed

that about a year after the marriage of Shaila, Subhash had come to his

house and had demanded Rs.40,000/- for purchase of a tempo. He has

deposed that he did not have the said amount and he told Subhash

that he would give the money later. He had gone to the house of

Shaila during Diwali time and he learnt that Shaila has consumed

B.S.C. powder because her husband and family members were ill-

treating her.

16. PW4-Suresh, brother of deceased Shaila has deposed that

things were normal with Shaila for about one year after her marriage.

He has stated that about one and half year after the marriage on the

eve of Diwali, he had gone to Vardhangad to bring Shaila to her

parental home. He has deposed that Shaila had handed over him a

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note. Wherein she had written that she had consumed B.S.C. powder.

He claims that he threw the said note and thereafter took Shaila to

Waduj. Upon enquiry, Shaila told him that her husband Subhash and

his family members were ill-treating her since her father and uncle had

refused to fulfill his demand of Rs.40,000/-. PW4 further claims that

in the month of April, 1993 accused had come to his house at Pune and

had demanded Rs.10,000/- for purchasing land. He did not pay the

said amount to the said accused.

17. The testimony of PW1, PW2 and PW4 reveals that things

were normal between Shaila and her husband for about one year after

marriage. The alleged demand of dowry was made about one year

after the marriage. These witnesses have claimed that husband of

Shaila had subjected her to ill-treatment as her father-PW1, PW2-Uncle

and- her brother had refused to fulfill his demand.

18. It is to be noted that these witnesses claimed that Shaila

had consumed BSC powder because she was subjected to ill-treatment.

There is no medical evidence to indicate that deceased Shaila had

attempted to commit suicide about a year after her marriage. There is

nothing on record to indicate that these witnesses had reported the

matter to the police. It is also to be noted that PW4, who is brother of

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Shaila claims that Shaila had given a written note telling him that she

has consumed BSC powder. PW4 claimed that he had thrown the said

note. His evidence does not indicate that he has either taken Shaila to

the hospital or that he had reported the matter to police. Conduct of

PW4 is highly unnatural and cannot be believed.

19. Even otherwise, the evidence of PW1, PW2 and PW4 do not

indicate that accused Nos.4, 5 and 6 had at any time demanded dowry

or subjected Shaila to cruelty. It is also pertinent to note that accused

No.4, who is sister-in-law of the deceased was not residing alongwith

Shaila and her husband. Hence there was no question of ill treating

her. Consequently, the learned Judge was justified in acquitting these

accused of the offences punishable under Sections 498 A and 304 B of

the IPC.

20. As regards offence under Section 306 of the IPC, death by

suicide and abetment of suicide are the essential ingredients of this

Section. Section 107 of the IPC, which defines abetment reads as

under:-

107. Abetment of a thing.--A person abets the doing of a

thing, who--

(First) -- Instigates any person to do that thing; or

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(Secondly)--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) -- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.-- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

21. In the instant case, the factum of suicide is not disputed.

Neverthless the evidence of PW1, PW2 and PW4 does prove that the

accused had either instigated, conspired or intentionally aided Shaila

in committing suicide. Since the essential ingredients of the abetment

are not made out, the learned Judge was justified in acquitting the

accused of offence under Section 306 of the IPC.

22. In the facts and circumstances the findings recorded by the

learned Judge is neither perverse nor contrary to the legal provisions

and hence, there is absolutely no reason to interfere with the judgment

dated 14.10.1998.

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23. Under the circumstances and in view of discussion supra,

the Appeal is dismissed.

                                    (ANUJA PRABHUDESSAI, J.)




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