Shri Motiram S/O Kisan Shende vs State Of Maharashtra
2017 Latest Caselaw 6507 Bom

                                       1                                       apeal267.02




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 267 OF 2002


 Shri Motiram s/o Kisan Shende, 
 Aged about 22 years, 
 Occupation - Business, 
 R/o Sadak Arjuni, District Gondia.                            ....       APPELLANT


                     VERSUS


 State of Maharashtra                                          ....       RESPONDENT

 ______________________________________________________________

              Shri R.R. Bhure, Advocate for the appellant, 
            Shri N.B. Jawade, Addl.P.P. for the respondent.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 18-08-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 24-08-2017


 JUDGMENT : 

The appellant assails the judgment and order dated

22-5-2002 in Sessions Trial 67/1998 of the learned 1st Ad hoc

Additional Sessions Judge, Bhandara by and under which the appellant

is convicted for the offences punishable under Sections 304-B and 498-

A of the Indian Penal Code and is sentenced to suffer rigorous

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imprisonment for seven years and for the offence punishable under

Section 306 of the Indian Penal Code and is sentenced to suffer

rigorous imprisonment for two years.

2. Alongwith the appellant (hereinafter referred to as the

accused) his mother Kaushalyabai was also arrayed as a co-accused.

She has, however, been acquitted.

3. The deceased Kanchan married the accused on 19-5-1997

and the couple cohabited at village Sadak Arjuni. Kanchan met a

watery death between 19-2-1998 and 20-2-1998. Her body was

recovered from a well situated in close proximity to the residence of

the accused. The accused Motiram lodged a report at police station

Duggipar. An accidental case was registered under Section 174 of the

Criminal Procedure Code, 1973.

4. During the course of investigation, the police prepared the

spot and inquest panchanama and the dead body was sent for post

mortem. The case of the prosecution is that during the course of

investigation, the statements of witnesses were recorded which

revealed that the accused and his mother were ill-treating the deceased

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Kanchan to coerce her to accede to illegal demand of dowry. Since the

death occurred within seven years of the marriage and the death was

treated as suicidal, offences punishable under Sections 304-B, 306 and

498-A read with Section 34 of the Indian Penal Code were registered.

The completion of investigation led to presentation of the charge-sheet,

the trial Court framed charge Exhibit 13 on 09-8-2001, the accused

pleaded not guilty and claimed to be tried.

5. The charge Exhibit 13 framed by the learned Sessions

Judge reads thus :

"Charge

I, B.B. Yerlekar, 1st Ad hoc Assistant Sessions Judge, Bhandara do hereby charge you :

1. Motiram s/o Kisan Shende, Aged about 22 years,

2. Kaushalyabai wd/o Kisan Shede, Aged about 45 years.

Both r/o Sadak Arjuni, District Gondia as follows :

1. That, in between 19-2-1998 to 20-2-1998 you accused no.1 being husband of Kanchan w/o Motiram Shende and accused No.2 being her mother-in-law in furtherance of common intention, caused her death in well water other than normal circumstances, within seven years of marriage and thereby you both have committed an offence u/s 304-B read with section 34 of the Indian Penal Code and within my cognizance.

2. Secondly, on the same date, time and place at Sadak Arjuni you both the accused persons, in furtherance of

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common intention, abetted to Kanchan to commit suicide, for the demand of dowry and harassed her, and thereby you both have committed an offence under section 306 read with section 34 of the Indian Penal Code and within my cognizance.

3. Thirdly, on the aforesaid date, time and place, you both being in law of deceased Kanchan, in furtherance of common intention subject to cruelty to such Kanchan, harassed her and thereby you both have committed an offence under Section 498-A read with section 34 of the Indian Penal Code and within my cognizance.

And, I hereby direct that you both be tried by me on the aforesaid charges.

Dated : 09-8-2001. sd/-

(B.B. Yerlekar) st 1 Ad hoc Asstt. Sessions Judge, Bhandara

Charge is read over and explained to the accused persons in vernacular. They pleaded not guilty and claimed to be tried.

Dated : 09-8-2001. sd/-

(B.B. Yerlekar) st 1 Ad hoc Asstt. Sessions Judge, Bhandara"

6. The prosecution examined nine witnesses including the

brother, mother and uncle of the deceased and a family friend of the

deceased to substantiate the allegation that the deceased Kanchan was

ill-treated and harassed with a view to coerce her to meet unlawful

demand for property and valuable security.

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7. The defence of the accused as evident from the statement

recorded under Section 313 of the Criminal Procedure Code is of total

denial and false implication. The learned Sessions Judge was pleased

to acquit the mother of the accused Kaushalybai recording a finding

that there was no evidence against her and that she was falsely

implicated. The accused was convicted for the aforestated offences.

8. Heard Shri P.R. Bhure, learned Counsel for the appellant

and Shri N.B. Jawade, learned Additional Public Prosecutor for the

respondent.

9. The learned Counsel for the appellant submits that the

learned Sessions Judge committed serious and grave error in holding

that the prosecution has proved the charge beyond reasonable doubt.

He would urge, by inviting my attention to the testimony of P.W.1

Jageshwar Lokhande and the spot panchanama, that the possibility

that the deceased met an accidental death is not ruled out or excluded

and the conviction under Sections 304-B and 306 of the Indian Penal

Code is, therefore, manifestly erroneous and unsustainable. He would

further urge that the prosecution failed to bring home the charge

under Section 498-A of the Indian Penal Code by adducing cogent

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evidence on record. The learned Counsel would urge that the evidence

is sketchy, vague, marred by material discrepancies and inter se

inconsistencies.

10. Per contra, learned Additional Public Prosecutor would

urge that the judgment of conviction is unexceptionable and the charge

is brought home by testimonies of the relatives of the deceased and a

family friend. The learned Additional Public Prosecutor would urge

that since the death occurred within seven years of the marriage in the

circumstances other than normal and it is shown that soon before the

death cognizance was subjected to cruelty or harassment in connection

with demand for dowry, the accused is rightly convicted for offences

punishable under Sections 304-B and 498-A of the Indian Penal Code.

The evidence on record, according to the learned Additional Public

Prosecutor, is cogent and sufficient to also bring home the charge

under Section 306 of the Indian Penal Code.

11. I have closely and minutely considered the evidence on

record and the reasoning of the learned Sessions Judge as is

discernible from the judgment impugned. The learned Sessions Judge

has convicted the accused for the offence punishable under Section

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304-B of the Indian Penal Code on the assumption that the death of

the deceased can only be suicidal or homicidal. The learned Sessions

Judge records thus in paragraph 9 of the judgment impugned

"her death is caused because of fall in the well water. The well is near to the house of the accused. It was a night time. Therefore, it is crystal clear that deceased Kanchan either committed suicide or she was killed and thrown in the well water".

12. I am afraid, the reasoning is both strange and fallacious.

Section 304-B of the Indian Penal Code reads thus :

"304-B.Dowry death. - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstance within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation - For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

8 apeal267.02

In view of the explanation, it would be apposite to

consider the definition of "dowry" in Section 2 of the Dowry

Prohibition Act, 1961, which reads thus :

"2. Definition of "dowry" - In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly -

(a) by one party to a marriage to the other party to the marriage, or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before (or any time after the marriage) (in connection with the marriage of the said parties, but does not include) dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies."

Section 113-B of the Indian Evidence Act which deals with

presumption as to dowry death reads thus :

"113-B. Presumption as to dowry death - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation - For the purposes of this section, "dowry death", shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860)

9 apeal267.02

13. Section 304-B is introduced in the Indian Penal Code by

the Dowry Prohibition (Amendment) Act, 1986, with the avowed

object of curing and curbing the menace of dowry death. Section 113-

B was also introduced in the Indian Evidence Act by the said Act of 43

of 1986.

The necessary ingredients of Section 304-B of the Indian

Penal Code are as follows :

(1) The death of the woman was caused due to burns, bodily

injury or due to unnatural circumstances.

(2) The death should be within seven years of marriage.

(3) It would be shown that soon before death the woman was

subjected to cruelty or harassment by her husband or any relative of

the accused.

(4) The cruelty or harassment was for or in connection with

any demand of dowry. It is axiomatic that since the presumption

under Section 113-B of the Indian Evidence Act is a presumption of

law, on the prosecution proving the essential ingredients, the Court is

obligated to raise a presumption that the accused caused the dowry

death as is held by the Hon'ble Supreme Court in Prem Kanwar vs.

State of Rajasthan, (2009) 3 SCC 726. The death can be categories

(1) natural (2) homicidal, (3) suicidal and (4) accidental.

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14. An accidental death, would not be a death otherwise than

under normal circumstances. It would be necessary to exclude the

possibility of accidental death before the accused can be convicted

under Section 304-B of the Indian Penal Code. Unfortunately the

learned Sessions Judge erroneously assumed that since the deceased

fell in the well, the death could only be suicidal or homicidal.

15. P.W.1 Jageshwar Lokhande who is witness to the spot

panchanama Exhibit 38 states that the well is parallel to earth, which

would suggest that there was no protective parapet wall. P.W.1 admits

that on the fateful night there was darkness and that a cow had also

fallen in the well situated behind the house of the accused. The spot

panchanama Exhibit 38 records that the public well is situated behind

the house of the accused at a distance of two and half feet from the

gate of the thorny compound of the house of the accused. The spot

panchanama records the height of the parapet wall from the ground as

one and half feet. It is true that there is some inconsistency between

the testimony of P.W.1 and the spot panchanama on the existence of

the parapet wall. The spot panchanama records the existence of a

parapet wall of one and half feet height while the witness to the spot

panchanama P.W.1 asserts that the well is parallel to the earth.

11 apeal267.02

16. However, even if the existence of one and half feet

parapet wall is assumed, the fact that a cow fell in the well, that well is

situated at a distance of two and half feet from the gate of the

compound of the residence of the accused, that on the fateful night

there was darkness, would suggest that the possibility of the deceased

having met with an accidental death cannot be ruled out. It would be

apposite to refer to the following observations of the Hon'ble Supreme

Court in the case of Sanjay Kumar Jain vs. State of Delhi, (2011) 11

SCC 733.

"49. On proper analysis of Section 304-B of the Indian Penal Code and Section 113-B of the Evidence Act, it shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution is under an obligation to rule out any possibility of natural or accidental death. Where the ingredients of Section 304-B of the Indian Penal Code are satisfied, the section would apply. If death is unnatural, either homicidal or suicidal, it would be death which can be said to have taken place in unnatural circumstances and the provisions of Section 304-B would be applicable".

I am not persuaded to agree with the learned Sessions

Judge that the fact that Kanchan fell in the well can only suggest

suicidal or homicidal death. The prosecution has not excluded the

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possibility of an accidental death and the conviction under Sections

304-B and 306 of the Indian Penal Code, is wholly unsustainable.

17. The learned Additional Public Prosecutor would urge that

in the teeth of the evidence on record, the finding of the learned

Sessions Judge that offence under Section 498-A of the Indian Penal

Code is made out, does not suffer from any legal infirmity. Section

498-A of the Indian Penal Code reads thus :

"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 file.

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 scrutiny or is on account of failure by her or any person related to her to meet such demand.)"

13 apeal267.02

Section 498-A of the Indian Penal Code was inserted by

Act 46 of 1983, with the object of preventing torture and ill-treatment

to a woman by her husband or by relatives of her husband. In order to

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

it would be necessary for the prosecution to prove that the woman was

subjected to cruelty as defined in the explanation to Section 498-A of

the Indian Penal Code. 'Cruelty' is defined to mean any willful

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) and harassment of a woman

whether such harassment is with view to coercing 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.

18. It is well settled that not every kind of cruelty constitutes

an offence under Section 498-A of the Indian Penal Code. Cruelty for

the purpose of Section 498-A of the Indian Penal Code may be

different from other statutory provisions including the cruelty

necessary to establish a matrimonial misconduct or offence.

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19. I may now proceed to evaluate the evidence on record on

the basis of which the learned Sessions Judge has held that offence

under Section 498-A of the Indian Penal Code is conclusively made out

against the accused. P.W.2 Umesh Parve is the eldest amongst the six

brothers of the deceased. P.W.2 Umesh is married to Sharda, the sister

of the accused. P.W.2 admits that upon the death of Kanchan, he

reached (left) his wife at the house of the accused. In the cross-

examination, P.W.2 Umesh states that his wife Sharda, the sister of the

accused, had attempted suicide by consuming poison and hanging and

therefore, he left her at the house of the accused. The testimony of

P.W.2 would suggest that he did not have a healthy muchless cordial

or affectionate relationship with his wife who is sister of the accused.

P.W.2 further asserts in the examination-in-chief that he suspects that

her sister was killed and then thrown in the well. P.W.2 asserts in the

examination-in-chief that the deceased Kanchan addressed a letter to

him complaining of ill-treatment. The letter is, however, not produced

on record. The investigating officer who is examined as P.W.9 states

that although P.W.2 was asked to produce the letter, P.W.2 failed to

produce the same. It is not the version of any witness of the

prosecution that the letter allegedly written by the deceased was lost

or torn or otherwise unavailable. The cumulative effect of the

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aforesaid circumstances is that the evidence of P.W.2 Umesh must be

closely scrutinized on the anvil of caution. P.W.2 states that he fetched

the deceased from Sadak Arjuni to her parental house for Ashadi

festival. P.W.2 Umesh states that the deceased informed the family

that the accused-husband and mother-in-law were harassing her. He

states that the deceased told that "the accused pulled her down by

lifting". P.W.2 states that he visited the accused and his sister on the

occasion of Rakhi and the accused quarreled with him and beat his

sister. P.W.2 deposes that accused 2, who is acquitted, was taunting

her sister and was asking her to bring amount from parents. P.W.2

further deposes that when accused came to fetch the deceased after

Ashadi festival, the accused quarreled with P.W.2 under the influence

of liquor. P.W.2 deposes that the pregnancy of the deceased was

terminated due to the physical assault of the accused and his mother.

P.W.2 speaks of visiting village Sadak Arjuni to meet the deceased and

to have witnessed the accused beating the deceased. P.W.2 states that,

therefore, he brought the deceased to the parental house. P.W.2

speaks of the deceased having stayed at family house for a week and

then of the visit of the accused to escort the deceased to the

matrimonial home. P.W.2 states that the accused told him and the

family that the aunt of the accused is unwell and bedridden. P.W.2

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states in the examination-in-chief that the deceased told the family that

this was her last visit and she was weeping.

20. During the cross-examination, P.W.2 admits that he is

residing separate from the family after his marriage with the sister of

the accused. P.W.2 denies the suggestion that he habitually quarreled

with Sharda who was constrained to stay with the accused. He denies

the suggestion that deceased Kanchan did not complain about ill-

treatment or demand of articles. He denies the suggestion that the

accused and his mother were falsely implicated due to the strained

relationship between P.W.2 and the accused.

21. P.W.4 is Sangita Dongare who is the neighbour of the

parents of the deceased Kanchan. P.W.4 did not support the

prosecution, was declared hostile and cross-examined by the

prosecution. In the cross-examination by the prosecution, P.W.4

initially maintains that she did not remember that the police recorded

her statement. However, in further cross-examination, she admits the

contents of portions marked "A" and "B" as correct. She admits to

have stated to the police that the deceased Kanchan did talk to her

about beating and harassment. P.W.4 was also cross-examined on

17 apeal267.02

behalf of the accused during the course of which P.W.4 states that she

was not called to Duggipar police station and that her statement was

recorded at Nagpur.

22. Mandabai, mother of the deceased is examined as P.W.5.

In the examination-in-chief, she stated that she did not wish to say

anything. She stated that she did not remember the contents of the

statement recorded by the police. The prosecution sought permission

to refresh the memory of P.W.5 by reading to her statement, which

permission was granted by the trial Court. However, even after the

statement under Section 161 of the Criminal Procedure Code was read

over to P.W.5, she maintained that she is not in a position to say

whether the contents of the statement were recorded as per her say.

P.W.5 was declared hostile and was cross-examined by the

prosecution. P.W.5 has admitted portions A, B, C and D in the

statement under Section 161 of the Criminal Procedure Code as having

been correctly recorded. She admits her previous statement that

according to her daughter, the accused ill-treated her since ornaments

were given in marriage. P.W.5 states that the deceased told her that

the accused used to speak and chitchat with a lady guest of a

neighbour. P.W.5 then speaks of termination of pregnancy of the

18 apeal267.02

deceased. She, however, does not attribute the termination of

pregnancy to the alleged ill-treatment. P.W.5 is also cross-examined

by the accused during the course of which she admits that she did not

make any enquiry from the neighbours of the accused in relation to the

death of Kanchan or in relation to the lady guest of the neighbour. She

states that she did not make any enquiry about the occupation of the

accused, before marriage. She denies any knowledge about the

accused earning between Rs.7,000/- and Rs.8,000/- per month. She

admits that Kanchan visited her parental house at least on four

occasions and denies the suggestion that Kanchan did not even tell her

about ill-treatment or harassment. She admits that when the accused

visited her house, she did not make any enquiry from the accused as to

why the accused beat her daughter. She admits that the sister of the

accused Sharda, who is married to P.W.2, did accompany her to Sadak

Arjuni. P.W.6 Pundlik Parwe is the uncle of the deceased Kanchan

who states in the examination-in-chief that Kanchan told her that the

accused ill-treated her for ring and chain of gold. P.W.6 states that

Kanchan met him six days before her death, at Nagpur. He claims that

it was then that Kanchan disclosed that the accused beat her for ring

and chain of gold. In the cross-examination, P.W.6 admits that the

family of Kanchan suspected that the accused and his mother

19 apeal267.02

murdered Kanchan and threw the body in the well. He admits that he

did not fetch Kanchan for Ashadi festival and that he did not halt at the

house of the accused. He states that he does not remember as to

whether he had told the police that Kanchan met him six days before

her death. P.W.8 Mainabai Shende is related to the accused and is a

resident of Tanda, Tahsil-Mouda, District-Nagpur. P.W.8 states that

the accused and the deceased visited her when she was ill. P.W.8

states that the couple stayed at her place for the night and left the next

day. The visit was four to five days prior to the death of Kanchan.

P.W.8 states that Kanchan did not speak about any ill-treatment by the

accused and the accused and Kanchan were happy when they stayed

with her.

23. The evidence on record on the aspect of cruelty as defined

in the explanation to Section 498-A of the Indian Penal Code is neither

adequate nor confidence inspiring for upholding the conviction of the

accused. The evidence is marred by inter se inconsistencies and

contradictions and embellishment. Except P.W.4 Sangita who is a

close friend of the family, P.W.2, P.W.5 and P.W.6 are the elder

brother, mother and uncle of deceased Kanchan. The investigating

officer initially admitted in the cross-examination that he did record

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the statements of the neighbours of the accused and then immediately

retracted the same by stating that he recorded the statements of only

the relatives. The close relatives of deceased Kanchan believed that

Kanchan was murdered and then her body was thrown in the well.

The possibility that traumatised by the death of Kanchan and hurt and

enraged due to the perception that the accused and his mother were

responsible for the death of Kanchan, and that too the perceived

homicidal death of Kanchan, the relatives of Kanchan may have,

during the course of investigation, falsely implicated the accused or

may have grossly exaggerated the behavioural flaws or misconduct of

the accused. The finding recorded by the learned Sessions Judge that

the mother of the accused is falsely implicated, would suggest that in

view of the unfortunate and shocking death of Kanchan and that too

due to fall in the well may have impelled the relatives of the deceased

to resort to exaggeration, embellishment and false implication due to

the trauma and sense of hurt. The fact that both the mother of

Kanchan and Sangita Dongare were not inclined to support the

prosecution, and indeed, P.W.5 mother of the deceased was not

inclined to support the case of the prosecution despite the prosecution

having read over her statement under Section 161 of the Criminal

Procedure Code to refresh her memory, cannot be ignored, although is

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true that in the cross-examination, both P.W.4 and P.W.5 have

admitted that the police did correctly record the statements under

Section 161 of the Criminal Procedure Code as per their say. The

evidence of P.W.6 who is the uncle of the deceased is not trustworthy

and his version that he met Kanchan six days prior to her death and

that Kanchan told him about the demand for ring and chain of gold

does not inspire confidence. P.W.2 Umesh, in my opinion, is not a

reliable witness. Indisputably, he did not have cordial or affectionate

relationship with his wife, who happens to be the sister of accused.

P.W.2 did not waste any time in leaving his wife at the residence of the

accused, upon the death of Kanchan. P.W.2 states in the cross-

examination that he was impelled to do so since his wife Sharda, who

is sister of the accused, attempted suicide. P.W.2 deposes that

Kanchan wrote to him complaining of ill-treatment but then the

alleged letter/s are neither produced nor is any explanation given for

the non-production. P.W.2 claims to have been witness to ill-treatment

when he and his brother Om visited the residence of the accused on

the occasion of Rakhi festival. Om is, however, not examined.

The holistic consideration of the evidence would suggest that no

material particulars or details are disclosed by four witnesses who are

examined to prove harassment intended to coerce Kanchan or her

22 apeal267.02

relatives to fulfill unlawful demand. The evidence is too sketchy and

omnibus to be of any assistance to the prosecution in bringing home

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

24. In the testimony of P.W.2 Umesh, there is absolutely no

whisper that the accused ill-treated or assaulted the deceased with a

view to coerce her or her family to satisfy any unlawful demand. All

that is alleged by P.W.2 against the mother of accused who is

acquitted, is that she asked the deceased to bring amount from her

parents. The version of P.W.2 that Kanchan's pregnancy was

terminated due to physical assault by the accused, appears to be

palpable false. The treating doctor is not examined to substantiate the

allegation. More importantly neither P.W.5 who is the mother of the

deceased nor P.W.6 who is uncle of the deceased attributes the

termination of pregnancy to the alleged physical assault. I am

convinced that P.W.2 Umesh is not a reliable and credible witness.

P.W.2 has resorted to exaggeration, distortion and falsehood in an

anxiety to somehow or the other implicate the accused. The evidence

of P.W.5 the mother of the deceased is not sufficient to conclusively

hold that the accused subjected the deceased to cruelty within the

meaning of the explanation to Section 498-A of the Indian Penal Code.

23 apeal267.02

P.W.5 initially refused to depose, her statement under Section 161 of

the Indian Penal Code was read over to her to refresh memory, P.W.5

even thereafter maintained that she is not in a position to say whether

statement under Section 161 of the Criminal Procedure Code was

recorded as per her say. True it is that having been declared hostile,

she has admitted every suggestion given to her by the prosecution, she

has admitted portions marked A,B,C and D in her statement under

Section 161 of the Criminal Procedure Code. It is a settled position of

law that merely because the witness is declared hostile, the testimony

is not totally effaced or washed out. However, I am not persuaded to

hold that the testimony of P.W.5 is confidence inspiring.

Even otherwise, there are two many discrepancies, inconsistencies and

inter se contradictions in the versions of the witnesses to come to the

conclusion that the prosecution has proved the offence beyond any

reasonable doubt. The salutary requirement of proof beyond

reasonable doubt cannot be sacrificed at the alter of suspicion,

however, strong may be the suspicion.

25. The judgment and order passed by the learned 1 st Ad hoc

Additional Sessions Judge, Bhandara in Sessions Trial 67/1998 on

22-5-2002 is set aside. The accused stands acquitted of the offences

24 apeal267.02

punishable under Sections 304-B, 306 and 498-A of the Indian Penal

Code. His bail bond shall stand discharged. Fine paid, if any, by the

appellant shall be refunded to him.

The appeal is disposed of accordingly.

JUDGE adgokar