Chandrakumar Sundardas Taneja vs State Of ...
2017 Latest Caselaw 4114 Bom

 apeal 144.2001                                  1        

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                      CRIMINAL   APPEAL NO.  144/2001


 Chandrakumar Sundardas Taneja,
 Aged about 33 years,
 Occupation-Business,
 R/o Sindhi Colony,Ramnagar,
 Chandrapur(MS)                                               ..... APPELLANT

       ...V E R S U S...

  
 State of Maharashtra,
 Through Police Station Officer,
 Police Station Ramnagar,
 Chandrapur(M.S.).                                           ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri Sahil S. Dewani, Advocate for appellant.
 Miss T.H.Udeshi,Addl.P.P. for State.
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :- JULY 6,2017

ORAL JUDGMENT

The present appeal is directed against the judgment

and order of conviction passed by learned Additional Sessions

Judge,Chandrapur in S.T.No.163/1996, by which the learned

Judge of the Court below convicted the appellant for the offence

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

Code.

In respect of conviction under Section 498-A of Indian

Penal Code, the appellant was directed to suffer R.I.for 1 year and

6 months and was directed to pay fine of Rs. 1000/- and in

default of payment of fine to suffer R.I. for 6 months.

So far as, his conviction under Section 306 of the

Indian Penal Code is concerned appellant was directed to suffer

R.I. for 3 years and to pay fine of Rs. 2000/- and in default of

payment of fine he was ordered to suffer further R.I. for one year.

2. The prosecution case as it is unfolded during the course

of trial, is as under:

Ashok Govindrao Kshirsagar(PW3) on 16/4/1996 was

attached to P.S.Ramnagar at Chandrapur as a police constable.

His duty hours were from 8.00 p.m. of 16/4/1996 to 8.00 a.m. of

17/4/1996. While he was discharging his duty at about 2.30 a.m.

he received a message from Police Control Room informing him

that fire has erupted at Sindhi Colony, Ramnagar. A direction was

given to him to visit spot alongwith duty officer. Accordingly duty

officer Shri Sheikh , this prosecution witness and other police staff

reached to the spot. During the course of their travel from police

station to Sindhi Colony, Ramnagar the factum of fire was

informed to Fire Brigade and also to police sub-inspector. When

this staff reached to the spot they noticed that fire brigade was

already reached there and steps were being taken to extinguish

fire. The fire broke in the house of present appellant and first

upper floor of the house was engulfed with such fire. Fire Brigade

extinguished the fire. The door of the room was chained from

inside. It was broken up. When P.C.Ashok(PW3) alongwith other

police staff entered the room they found dead body of woman in

complete charred condition and was lying along side the cot. The

dead body was identified as dead body of wife of appellant and

she was identified as "Harsha".

3. Gopal Hemchandra Rupani(PW1), the brother of

deceased Harsha reached to police station. That time Mohd. Hanif

Sk.Shabbir(PW9)was Police Sub-Inspector of P.S. Ramnagar.

Gopal (PW1) lodged his report (Exh.24). The gist of the FIR

lodged by first informant Gopal(PW1) is as under:

His sister whose maiden name was Maya Rupani was

married on 01/04/1994 with applicant. After 3-4 months of her

marriage appellant and his mother started causing illtreatment to

her in respect of dowry. She was beaten, she was abused by her

mother in law and the appellant. That because of the beatings at

the hands of the appellant and the mental harassment on the part

of her mother in law his deceased sister was suffering from

tremendous mental stress causing blood omitting. Though the

treatment was given to her by appellant, there was no

improvement. Resultantly, she was taken to K.E.M. Hospital,

Mumbai. No person from the appellant side came to Mumbai.

Thereafter first informant(PW1) and his sister came to Khamgaon,

the parental city of deceased Harsha. On 29/2/1995 his other

brother in law alognwith his sister dropped Harsha to her

matrimonial house at Chandrapur. The F.I.R. further recites that

thereafter again illtreatment started causing again blood omitting.

The fact of blood omitting was informed by the appellant

therefore, first informant came to Chandrapur and took his sister

to Khamgaon where she was administered some Ayurvedic

medicines with treatment. That treatment was continued about 2

and ½ months at Khamgaon. Thereafter, as per request made by

deceased she was taken to Chandrapur. It is stated in the F.I.R.

that, that time appellant and mother in law of deceased did not

allow her to enter into the house unless she gave in writing.

Subsequently, again the deceased was brought to Khamgaon and

she stayed at Khamgaon for 8 days. Thereafter again first

informant(PW1) and deceased came to her matrimonial house,

that time a panchayat was called. The respectable persons from

the community in the said panchayat ruled that deceased should

reside separately from her mother in law. Accordingly, appellant

and deceased started residing separately though in the same

house. It is further stated in the F.I.R. that in spite of living

separately harassment continued and therefore one Chandrakant

Adwani, a member of Sindhi Panchayat called first informant

(PW1) and his father to attend panchayat at Chandrapur. Hence,

on 16/4/1996, at Chandrapur panchayat took place in the night

hours. After panchayat was over first informant and his father

went to lodge for night stay,however in the night one person

informed them to accompany to the house of appellant and when

they reached there they noticed smoke was emitting from the

upper floor and on opening a door he noticed the dead body of his

sister.

4. Mohd. Hanif(PW9) noticed that since the report was

disclosing commission of cognizable offence, he registered the

offence vide Crime No.107/1996, for the offence punishable

under Sections 498-A and 306 of the Indian Penal Code against

the appellant and his mother Laxmibai Taneja. The printed F.I.R.

is at Exh.53. The investigating officer (PW9) thereafter made a

visit to the spot of occurrence and spot panchnama(Exh.26) was

drawn. In the meanwhile, inquest was also done on the dead body

by drawing inquest panchnama(Exh.28). Dead body was also sent

to post mortem. Mohd. Hanif(PW9) also seized the articles found

on the spot and he recorded statements of witnesses. Thereafter,

he handed over investigation to Kereubhai Dattatraya Kolhe

(PW7).

On being entrusted with the investigation,

Kerubhai(PW7) recorded seizure panchnama(Exh.44) under

which he seized one audio cassette and two stamp papers (Exhs.

33 and 34). A stamp dated 26/10/1995(Exh.33) which shows that

it was in a nature of the agreement executed by deceased and also

a kabuliyatnama (Exh.34). After conducting other usual

investigation he filed chargesheet before the Court of law.

Learned Magistrate after filing of final report under

Section 173 of Cr.P.C. before him noticed that the offence is

exclusively triable by the Court of Session therefore, he passed

committal order.

5. After committal order was passed, case landed in the

Court of Session and it was registered as S.T.No.163/1996.

6. A charge was framed against appellant and his mother

Laxmibai for the offence punishable under Sections 498-A and

306 of the Indian Penal Code. Both of them abjured their guilt

and claim for their trial.

7. During the pendency of the trial and even prior to the

commencement of the evidence of the prosecution case Laxmibai

died and therefore trial was abated.

8. In order to bring home guilt of the appellant the

prosecution examined in all 9 witnesses and also relied on the

various documents which were proved during the course of trial.

After full fledge trial, the Court below was of the view that

prosecution has successfully proved its case against the appellant,

therefore appellant was convicted as observed in the opening

paragraph of the judgment. Hence, this appeal.

9. I heard Shri Sahil S. Dewani, learned counsel for

appellant and Miss T.H.Udeshi,Addl.P.P. for State. With their able

assistance I have gone through the entire record and proceedings

and notes of evidence.

10. The learned counsel for appellant strenuously urged

before this Court that the case of the prosecution is completely

destroyed by the version of the prosecution witness Meghraj

Dewandas Pabnani(PW5). He submitted that this Meghraj was

examined by the prosecution as its witness therefore the

prosecution cannot disown him. He further submitted that though

during examination in chief itself this prosecution witness (PW5)

has supported the version of the defence he was not declared

hostile and therefore in view of the law laid down by Hon'ble

Apex Court in the case of Mukhtiar Ahmed Ansari..vs..State

(NCT of Delhi),(2005)5SCC258, in paragraph no.29 in which

the Hon'ble Apex Court has ruled that, when the prosecution

never declared P.W.1 in the said reported case as hostile witness

when his evidence did not support the prosecution and it

supported defence accused has every right to rely on his evidence.

He also pointed out that the observation of Hon'ble Apex Court in

paragraph no.30 of the said reported decision that in absence of

declaring witness hostile his evidence is binding on the

prosecution.

11. His another limb of submission is that the prosecution

has utterly failed to prove the harassment. He invited my attention

to the eviddence of Gopal(PW1) and Hemchand (PW2) to point

out that their evidence is not corroborative with each other on

material aspect. He further submitted that the allegations against

the appellant are too general in nature and therefore he

submitted that the charge for the offence punishable under

Section 498-A of the Indian Penal Code is not proved at all.

In so far as offence under Section 306 of the Indian

Penal Code is concerned, it is his submission that there is no

evidence to show that the appellant has abetted the commission of

suicide. He invited my attention on the various reported cases of

Hon'ble Apex Court as well as this Court to point out that in

absence of any positive evidence to prove the ingredients of

Section 107 of the Indian Penal Code the appellant can not be

held liable for the offence punishable under Section 306 of the

Indian Penal Code.He further submitted that letter (Exh.37) dated

25/11/1995 which was considered by the learned Judge of the

Court below as dying declaration of deceased Harsha is erroneous

and therefore, in his submission the conviction cannot stand to the

scrutiny of the law.

12. Per contra, learned A.P.P. strenuously urged before me

that the evidence of Gopal(PW1) and Hemchand(PW2) shows

that there was no all well for the deceased after initial five months

period of her marriage. She further submitted that since the

unnatural death occurred within a span of 7 years the

presumption under Section 113-A of the Indian Evidence Act is

squarely applicable and therefore the appellant was rightly

convicted. She further pointed out that no lady will execute the

documents like Exhs. 33 and 34. Therefore, she submitted that

reliance placed by the learned counsel for the appellant on the

said documents is misplaced. She also relied on the evidence of

Raju Bhagchand Chawla(PW8). She therefore ultimately

submitted that appeal be dismissed.

13. The factum of death within a span of seven years is

not disputed in view of the date of marriage and date of death.

The dead body of Harsha was referred for post mortem to Dr.

Nitin Manoharrao Kallurwar(PW6). On 17/4/1996 when was

attached to Civil Hospital,Chandrapur as medical officer he

conducted post mortem over the dead body of Harsha. This

autopsy surgeon proved post mortem notes (Exh.47). As per post

mortem report (Exh.47) the deceased suffered 100% burn injuries

and cause of death was " shock due to superficial to deep burn

injuries 100%".

14. In view of the post mortem report(Exh.47) the

prosecution has proved that Harsha met unnatural death due to

burning.

Merely because a married woman met unnatural death

due to burn injuries that by itself is not sufficient to attract the

presumption as envisaged under Section 113-A of the Indian

Evidence Act. In order to attract the said provision the prosecution

is obliged to prove that the deceased was subjected to harassment

to such an extent that she is driven to commit suicide. Then and

then only the said presumption can be pressed into service.

15. Exh.24 is the oral report lodged by Gopal(PW1). F.I.R.

is not a substantive piece of evidence, same can be used either for

contradiction or corroboration of the maker of such document.

The evidence of Gopal(PW1) shows that his evidence is silent

about the harassment after first five months of the marriage

between appellant and Harsha. On the contrary, he stated that

after first five months there used to be quarrel in between Harsha

and appellant. Though Hemchand(PW2), the father of deceased

Harsha deposed from the witness box that the appellant used to

give cruel treatment both physical as well as mental on this

crucial aspect he could not found support from his son Gopal

(PW1). Though both these prosecution witnesses stated in

chorus that they used to receive letters from deceased intimating

them about the illtreatment at the hands of the appellant, for the

reason best known to the prosecution those letters were not

placed on record. The matrimonial place of deceased Harsha was

at Chandrapur and parental house of Harsha was at Khamgaon.

According to these prosecution witnesses (PW1 and PW2) the

letters were sent by Harsha from Chandrapur and they received

the same. Those letters must have been received by them at

Khamgaon and thus ordinarily those should be in their custody. It

was expected from these two witnesses when they disclose to the

Court that they gathered information about the illtreatment to

their near and dear at the hands of appellant through those letters

to place the same on record. Those letters in my view will be

primary evidence to show that really Harsha at any point of time

disclosed to her father (PW2)and her brother (PW1) about the

illtreatment. Not producing those letters on record in my view the

Court is required to draw adverse inference against the

prosecution to that extent.

16. It is not disputed by these prosecution witnesses that

when deceased was omitting blood that time treatment to her was

given by the appellant. Their evidence shows that since that

omitting continued therefore she was taken to K.E.M. Hospital,

Mumbai. As we all know that better medical facilities are available

at Mumbai than Chandrapur. Shifting Harsha from Chandrapur

to Mumbai for her medical treatment cannot be used against the

appellant. The evidence of Gopal(PW1) which is also supported by

Hemchand(PW2) shows that after treatment at Mumbai they

returned to Khamgaon. Thereafter they were called at Chandrapur

and the appellant has called a meeting of panchayat. It is an

admitted position that after returning from K.E.M. Hospital,

Mumbai till death of Harsha two meetings of panch committee

consisting of respectable persons from Sindhi community were

called at Chandrapur. Both these meetings were admittedly

attended by Gopal(PW1) and Hemchand(PW2).

17. In first meeting it was decided that the couple should

reside separately from the mother of appellant. In fact,the said

aspect is duly pointed out to the Court by Meghraj(PW5). His

version shows that in the first meeting there were no accusations

against the present appellant. What was stated during that

meeting by the deceased was against mother in law of the

deceased and therefore in the said meeting it was decided that the

appellant should reside separately alongwith his wife (deceased

Harsha) from his mother Laxmibai. It is also not in dispute that

the verdict of the said panch committee was accepted by the

appellant and the appellant started residing separately from his

mother with his wife though in the same house.

18. After lapse of three months second meeting was called

and that was dated 16/4/1996. This meeting was also attended by

Gopal (PW1) brother and Hemchand(PW2) father of deceased

Harsha and Meghraj(PW5).

It is established on record that this Meghraj(PW5) is

not related to the appellant. He belongs to Sindhi community to

which appellant and deceased belong. His house is situated about

400 houses away from the house of the appellant. His evidence

shows that when first meeting was held in that meeting nobody

from the complainant's side raised any finger against the appellant

that he has caused illtreatment or harassment of any nature.

Blame was put on deceased accused Laxmibai. Had really the

appellant was also responsible for causing any type of illtreatment

to the deceased then the brother and father of deceased would not

have missed this particular aspect in bringing to the notice of the

panchayat. Further evidence of Gopal (PW1) shows that appellant

was not responsible for any illtreatment. The evidence of Meghraj

(PW5) shows that document (Exh.33) was executed by Harsha

(deceased), her father Hemchand(PW2), Gopal(PW1), her

maternal uncle and brother in law. His evidence shows that while

executing this document (Exh.33) these persons were not

compelled to write the same. Another document which is brought

on record dated 22/6/1995 is Exh.34. What is important to note

that these documents which clearly absolve the appellant are not

coming on record from the custody of the accused persons but

those were seized during the course of investigation by

investigating officer. Careful reading of these two documents

(Exhs. 33 and 34) show otherwise. In Exh.33 it is admitted that

false allegations were made against the appellant and his family.

So also, Exh.34 is on the same line.

The incident of burning is early hours of 17/4/1996.

Both Gopal (PW1) and Hemchand(PW2) admitted that they

participated in meeting of panchayat on 16/4/1996 in night

hours. This meeting was also attended by Meghraj(PW5). His

evidence shows that in the said meeting Harsha told the

panchayat members that she was harassed. It would be useful to

reproduce the version of Meghraj as to what happened in the said

meeting.

" In that meeting Harsha was saying that these persons were harassing her. According to him these persons means mother in law of Harsha"

Thus, even in the second meeting nothing was attributed against

the present appellant. Every thing was attributed against mother

in law. Though Meghraj(PW5) has stated aforesaid he was not

declared hostile by the prosecution. He is a prosecution witness,

he was not supporting the prosecution, it was open for the

prosecutor to declare him "hostile". Therefore, in my view,

learned counsel for appellant has rightly relied on law laid down

by Hon'ble Apex Court in the reported case Mukhtiar Ahmed

Ansari (cited supra). Thus, even in the meeting dated 16/4/1996

there was no iota of accusation against the present appellant that

he caused any harassment. On the contrary, evidence of Meghraj

(PW5) further reveals that appellant played a cassette on cassette

player which was also seized during the investigation by the

investigating officer under seizure memo (Exh.44) and after

hearing the said cassette Gopal(PW1) and Hemchand(PW2) told

deceased Harsha that she proved them false. It would be useful

to reproduce the relevant portion of evidence of Meghraj(PW5):-

" It is true that in the meeting held on the day of incident after cassette was played , the father of Harsha says that she proved them false and defame them in the society".

His evidence further reads as under:

" He has no wish to see the face of Harsha, thereafter Harsha started weeping , thereafter all the members and father and brother of Harsha left meeting."

19. According to the prosecution this particular meeting

was finished at about 11.30 p.m. and the incident has occurred at

2.30 a.m. of 17/4/1996. Thus, it is quite possible that deceased

Harsha must have felt disgusted due to scolding of her own father

and must have taken the extreme step in her life.

20. The learned Court below in my view has incorrectly

placed reliance upon Exh.37. Exh.37 is written on 25/11/1995.

After letter (Exh.37) dated 25/11/1995 there were two

meetings. Thus, letter (Exh.37) was not written by deceased in

expectation of her death therefore the said cannot be considered

as dying declaration as considered by learned trial Court.

21. The evidence of Raju Bhagchand Chawla(PW8) on

which learned A.P.P. heavily relied, in my view is not well

founded in view of the fact that his evidence is found to be

improved version. Therefore, this Court is not giving any

importance to the improved version of the said witness Raju.

22. Re-appreciation of the entire prosecution case

according to this Court shows that there were no allegations that

this appellant made any demand from deceased. Deceased

Harsha was not subject to cruelty for any such demand from the

present appellant. Further in my view, there is no evidence

available on record by which it can be said that the appellant is

guilty of committing that type of harassment to deceased which

drives her to commit suicide. Therefore, in my view, the charge

under Section 498-A of the Indian Penal Code is not at all proved

against the appellant. In that view of the matter, presumption

under Section 113-A of the Indian Evidence Act is not available to

the prosecution.

23. As observed above, in a meeting dated 16/4/1996

which lasted till 11.30 p.m. cassette was played and after hearing

the cassette father Hemchand(PW2) scolded deceased Harsha and

declared that he will not see her face and thereafter immediately

she committed suicide. Therefore, in my view, it cannot be held

that appellant abetted deceased to commit suicide. The

reappreciation of the evidence of the prosecution case leads me

to pass the following order.

                               ORDER

 I)               Appeal is allowed.

 II)              The judgment and order of conviction passed by 

learned Additional Sessions Judge,Chandrapur dated 16/5/2001 in S.T.No.163/1996 is hereby quashed and set aside.

III) Appellant is acquitted of the offence punishable Sections 498-A and 306 of the Indian Penal Code.

 IV)              His bail bonds stand cancelled.  

                                         

                                                          JUDGE



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