Bombay High Court

State Of ... vs Dhonduji Rupchand Khakare And 2 ... on 6 December, 2017

Bench: R. B. Deo

                                                            1                                  apeal244.02




                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                     

                                              NAGPUR BENCH, NAGPUR.


                    CRIMINAL APPEAL NO. 244 OF 2002


                    State of Maharashtra,
                    through Police Station, Borakhedi,
                    District Buldhana.                                         ....       APPELLANT


                                        VERSUS


 Deleted as per
order dt.6-11-17    1) Dhonduji Rupchand Khakare,
                        Aged 49 years.

                    2) Sau. Shobhabai w/o Dhonduji Khakare,
                        Aged about 45 years, 

                    3) Mahadeo Dhonduji Khakare,
                        Aged 23 years, 

                        All r/o Murty, P.S. Borakhedi,
                        District Buldhana.                                     ....       RESPONDENTS


                    ______________________________________________________________

                       Ms. Trupti Udeshi, Additional Public Prosecutor for the appellant,
                            Shri R.L. Khapre, Advocate for the respondents 2 and 3.
                     ______________________________________________________________

                                                 CORAM :    ROHIT B. DEO, J.

                                               DATED  :      6
                                                                  DECEMBER, 2017
                                                               th



                    ORAL JUDGMENT :

The State is in appeal challenging the judgment and order

dated 21-1-2002 passed by the learned Assistant Sessions Judge,

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Buldana in Sessions Case 23/1996, by and under which the accused

are acquitted of offences punishable under Sections 306 and 498A read

with Section 34 of the Indian Penal Code.

2. Heard Ms. Trupti Udeshi, learned Additional Public

Prosecutor for the appellant and Shri R.L. Khapre, learned Advocate for

the respondents (hereinafter referred to as the "accused").

3. The accused faced trial on the charge that the deceased

Sindhubai, who married accused 3 Mahadeo on 16-4-1994 at village

Kothali, was subjected to ill-treatment to coerce her to satisfy the

unlawful demand of Rs.10,000/- and thereby committed an offence

punishable under Section 498-A read with Section 34 of the Indian

Penal Code and that the accused in furtherance of common intention

abetted Sindhubai to commit suicide.

4. Concededly, the deceased Sindhubai expired on 05-9-1995

due to consumption of poison. Ms. Trupti Udeshi, learned Additional

Public Prosecutor submits that in view of the suicidal death within

fifteen months of the marriage and the proof that Sindhubai was

subjected to cruelty, presumption under Section 113-A of the Indian

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Evidence Act, is activated. The learned Sessions Judge committed a

serious error in not appreciating that the prosecution has established

that the deceased was subjected to cruelty, is the submission.

5. Per contra, Shri R.L. Khapre, learned Counsel for the

accused would submit that the prosecution has not proved that the

death was suicidal and the finding of the learned Sessions Judge to the

contrary is against the weight of the evidence on record. In any event,

the possibility of an accidental consumption of insecticide is not

excluded, is the submission. The learned Counsel for the accused

would further submit that even if the death is assumed to be suicidal,

the finding recorded that the prosecution has not established that the

deceased was subjected to cruelty, is unexceptionable and is at any rate

a possible view. The judgment and order impugned is not perverse,

and this Court ought not to interfere in the judgment of acquittal, is the

submission.

6. With the assistance of the learned Counsel, I have

scrutinized the evidence on record closely, and having done so, I am

inclined to agree with the submission of the learned Counsel for the

accused that the view taken is a possible view. Neither the marshalling

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of evidence nor the findings recorded suffer from any glaring error and

in the absence of perversity this Court would be extremely slow in

interfering with the judgment of acquittal.

7. The prosecution examined twelve witnesses. The accused

Mahadeo, the husband of the deceased, has submitted a written

statement under Section 313 of the Criminal Procedure Code. The

accused Mahadeo also placed on record several documents, presumably

to demonstrate that the allegation that the deceased Sindhubai was

subjected to cruelty to coerce her to fulfill unlawful demand of

Rs.10,000/-, is inherently improbable.

8. The informant Prakash Satav is the brother of the deceased

who is examined as P.W.1. Vasudeo Satav, who is examined as P.W.2,

is also the brother of the deceased. Kaduba Wade, who is examined as

P.W.3, states that in the month of June 1995 he purchased pair of

bullock from the informant Prakash for Rs.10,000/-. Damodhar Satav,

who is examined as P.W.4, is the cousin brother of the deceased.

Gopal Patil, who is examined as P.W.5, is also the cousin brother of the

deceased. Bhagwan Satav, who is examined as P.W.6, is also the

cousin brother of the deceased. Annapurnabai Khakre, who is

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examined as P.W.7, did not support the prosecution. Kashiram Khakre,

who is examined as P.W.8, is also a neighbour did not support the

prosecution, Shakuntalabai Patil (Satav), who is examined as P.W.9, is

the mother of the deceased. Prabhakar Khakre, who is examined as

P.W.10, is a neighbour who did not support the prosecution. Sharad

Rawale, who is examined as P.W.11, is the Judicial Magistrate First

Class, Malkapur who recorded statements of witnesses under Section

164 of the Criminal Procedure Code. P.W.12 Kashinath Doifode is the

Investigating Officer.

9. The evidence of the informant P.W.1 Prakash, P.W.2

Vasudeo and P.W.9 Shakuntalabai is that the deceased Sindhubai

visited the parental house on the occasion of Diwali and conveyed that

since the accused intended to dig well, money is required. P.W.1

Prakash states that Sindhubai requested him to give money. P.W.2

Vasudeo states that the deceased conveyed that the accused are ill-

treating her and are demanding money for well and oil engine, which

version is corroborated by P.W.9 Shakuntalabai.

10. Be it noted, that statement under Section 161 of the

Criminal Procedure Code of P.W.9 Shakuntalabai is recorded belatedly

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on 19-10-1995 and no explanation is forthcoming for the delay. The

learned Sessions Judge records a finding, and rightly so, that the

evidence of P.W.9 Shakuntalabai is suspect and not confidence

inspiring.

11. The evidence of the six witnesses are related to the

deceased Sindhubai is marred by inter se contradictions, improvements

and embellishments. Illustratively, the informant Prakash is silent

about the deceased Sindhubai narrating the ill-treatment on her visit to

the parental house on the occasion of Diwali, the report Exhibit 75 does

not make a reference to Sindhubai having conveyed that the accused

were demanding Rs.10,000/- for digging well. The version of P.W.1

Prakash that when Sindhubai visited the parental house on the

occasion of Sankrant, she narrated that the accused are demanding

money for construction of well, is again inconsistent and discrepant

with the evidence of P.W.4 Damodhar and P.W.9 Shakuntalabai. It is

not deposed by either P.W.4 Damodhar or P.W.9 Shakuntalabai that

during the said visit, the deceased Sindhubai visited Prakash alongwith

her husband and brother-in-law and pleaded with P.W.1 Prakash to

give money and that Prakash assured that he would give money to

Sindhubai after disposing of agricultural land. This version is again

7 apeal244.02

missing from the first information report Exhibit 75.

12. The evidence that accused Dhondu, the father-in-law of

deceased Sindhubai asked for Rs.10,000/- for sowing operations and

that an amount of Rs.5,000/- was paid by P.W.1 Prakash to accused

Dhondu after selling bullocks for Rs.10,000/-, is correctly appreciated

by the learned Sessions Judge. Such a request, even if it is assumed

that the prosecution has duly proved that financial assistance was

sought by the deceased-accused Dhondu, in the absence of any proof

that the request was preceded or accompanied by coercion, would not

attract Explanation (b) to Section 498-A of the Indian Penal Code.

13. Be it noted, that the allegations of ill-treatment are vague

and sketchy. True it is, that the witnesses who are related to the

deceased, have deposed in a parrot like manner that Sindhubai was

subjected to ill-treatment. But then, no specific or overt act is brought

on record and the manner and extent of ill-treatment is left by the

prosecution to the surmises and conjecture of the speculative mind,

which needless to say is not an exercise that can be done by the Court.

The evidence on record omnibus, vague as the evidence is, even

otherwise does not inspire confidence since the independent witnesses

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have not supported the prosecution and the relatives of the deceased

have spoken in different voices on material aspects.

14. Before parting with the judgment, I must record that the

finding of the learned Sessions Judge that accidental death is ruled out,

is debatable. The defence is that Sindhubai consumed insecticide

accidentally. It is not in dispute that the consumption of insecticide

was in the agricultural field of the family of the deceased. P.W.8

Kashiram, who has not supported the prosecution states that Sindhubai

and accused 3 Mahadeo were spraying insecticide on cotton. The

father-in-law of deceased accused Dhondu had sown cowpea (chawali)

and mug as intercrops in the cotton crop. The witness states that he

was told that Sindhubai had eaten corns of mug and cowpea (chawali).

It is brought on record in the cross-examination of the Investigating

Officer, that during investigation one Laxman Pralhad Ghule, who is

not examined, revealed that on the day of the incident Sindhubai was

plucking ponds of udid in the field and that insecticide was sprayed on

the crops. The learned Sessions Judge analysis the evidence thus :

"16. In P.M. 4eport (Exhibit 17), doctor has not opined the cause of death. However, as per column No.21 of P.M. report, it indicates that 150 ml. greenish think fluid smell of

9 apeal244.02

some poison was found in the stomach of deceased. From C.A. report of viscera of deceased, it is clear that organochloro insecticide Endosulfan (Thiodan) and petroleum hydrocarbon were detected. If deceased Sindhu was infected poison accidentally, then she would have shouted for help and accused nos. 1 and 3 would have turn to her. There is no evidence that deceased Sindhu shouted for help. Considering C.A. report and contents mentioned in P.M. report, it indicates that deceased Sindhubai committed suicide and there is no chance to say that it was accidental one."

15. It is too well settled, that the burden on the accused to

prove the defence is not comparable to the burden on the prosecution

which is to prove the offence beyond reasonable doubt, unless of

course there is a reverse burden statutorily mandated. The limited

burden on the accused is to create a reasonable doubt about the

veracity of the prosecution case. This can be done by bringing on

record material which would suggest an alternate hypothesis

incompatible with the guilt of the accused. Benefit of doubt, must

necessarily go to the accused. In the teeth of the evidence, in my

opinion, the possibility that Sindhubai consumed insecticide

accidentally, is not totally excluded.

16. In the light of the discussion supra, I do not find any