State Of Maharashtra vs Arvind Dhnyaneshwar Gavhane And 3 ...
2017 Latest Caselaw 4736 Bom

                                                    1                      apeal62.03.odt

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

                        CRIMINAL APPEAL NO.62/2003

      State of Maharashtra through 
      PSO P.S. Arni, Dist. Yavatmal.                         .....APPELLANT
                         ...V E R S U S...

 1. Arvind Dhnyaneshwar Gavhane, 
    aged 26 years.

 2. Sau. Leelabai w/o Dhnyaneshwar
    Gavhane, aged about 50 years.

 3. Dhnyaneshwar Kisan Gavhane,
    aged 52 years.

 4. Prashant Dhnyaneshwar Gavhane,
      aged 23 years.
      All r/o Dolambwadi, Tq. Arni,
      Dist. Yavatmal.                                         ...RESPONDENTS
 -------------------------------------------------------------------------------------------
 Mr. R. S. Nayak, A.P.P. for appellant. 
 Mr. D. R. Upadhyay, Advocate for respondents. 
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- 19.07.2017

ORAL JUDGMENT

1. The State is before this Court since it is aggrieved by

the judgment and order of acquittal passed by the learned Ad hoc

Additional Sessions Judge, Pusad in Sessions Trial No.20/2001. By

the said judgment and order of acquittal, the learned Court below

acquitted the respondents of the offence punishable under Section

498A, 306 read with Section 34 of the IPC.

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2. I have heard Mr. R. S. Nayak, learned A.P.P. for the

appellant-State and Mr. D.R. Upadhye, learned counsel for the

respondents in extenso. With their able assistance, I have gone

through the record and proceedings.

3. The deceased is Nandabai. The respondent no.1 is her

husband. The respondent nos. 2 and 3 are mother in law and

father in law of the deceased. The respondent no.4 is brother in

law of the deceased. The marriage between respondent no.1 and

the deceased took place in the year 1996.

4. In 2001, when Jairam Chapriya (PW9) was discharging

his duties as PSI, Police Station, Arni, Maroti Dhangar (PW1)

father of the deceased approached the Police Station and lodged

his report that his daughter Nandabai committed suicide by

consuming poison due to the harassment at the hands of the

accused persons. The report is at Exh.-43. Crime was registered

on the basis of the said oral report by drawing printed FIR Exh.-

44. Prior to registration of the crime, an accidental death bearing

No.0/2001 was registered with Police Station, Yavatmal. In the

inquiry of the said accidental death proceedings, the spot

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panchanama was drawn at Exh.-46. No further spot panchanama

was recorded after registration of the crime.

5. The oral report Exh.-43 is dated 07.02.2001. As per the

said oral report, after marriage for a period of 1 year, the deceased

was nicely treated by the accused persons. When she was brought

during the summer for festival of "Rasali". She stayed with the

first informant for a period of 8 days and during her stay, it was

disclosed to him that she is being physically assaulted by her

mother in law and father in law on the pretext that she is unable

to cook food properly, she is not doing the agricultural works. It is

further stated in the FIR that on the demand for an ornament;

kada and for purchase of jeep, her husband used to assault her. It

is also stated in the FIR that her brother in law also used to assault

her. When her father in law had been to the house of the first

informant to bring her that time, the first informant gave a word

of understanding to him. On getting that promise from him, she

was sent to her matrimonial house. The FIR further states that

thereafter also for Diwali and for Rasali she used to come to her

matrimonial house and she used to disclose the treatment given to

her. The FIR further states that on 12.01.2001, the respondent

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no.1-Arvind came to his house and informed that he is purchasing

auto rickshaw and for that he demanded Rs.25,000/-. Rs.25,000/-

was given to the respondent no.1. The FIR further discloses that

on 02.02.2001, Murli Navghare (PW2) gave an information that

the deceased Nandabai is suffering from Malaria and she is

admitted in the hospital of Dr. Padmavar. Therefore, on the said

day, in between 3 to 4 p.m. the first informant had been to Arni.

That time, Murli Navghare took him to the General Hospital where

the deceased was an indoor patient. At that time the mother in

law, father in law and the husband of the deceased were present.

First informant made inquiry with him, on that they informed that

there is stomach problem to Nandabai. The FIR further states that

that time though he made an inquiry with Nandabai, as the

accused persons were present, nothing was disclosed to him. After

departure of the accused persons from the said place, it was

disclosed to him by Nandabai that due to the harassment given to

her, she has consumed poison. On 05.02.2001 at 6.30 Nandabai

had expired. With these allegations, the FIR was lodged.

6. During the course of investigation, statements of

various witnesses were recorded by the Investigating Officer. After

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completion of the further usual investigation, the charge-sheet was

filed in the court of law.

The learned Additional Sessions Judge framed charge

against the accused persons. They denied the charge and claimed

for trial.

7. In order to bring home the guilt of the accused persons,

in all 9 witnesses were examined by the prosecution. The defence

of the accused persons was that of denial. They also examined

one defence witness Eknath Gajbhiye, Executive Magistrate who

recorded dying declaration of the deceased.

After appreciating the case of the prosecution, the

learned Judge of the Court below noticed that the prosecution has

utterly failed to prove the charge against the accused persons and

therefore he acquitted the respondents.

8. From the FIR Exh.-43, it is clear that the report was

lodged on 07.02.2001. The information about the admission of

Nandabai was given to Maroti (PW1) on 02.02.2001. The FIR as

well as the substantive evidence of Maroti shows that after the

receipt of information about admission of his daughter, he

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immediately rushed to Arni. He had been to the Government

Hospital at Arni where Nandabai was an indoor patient. The FIR

and the evidence of Maroti (PW1) and his wife Leelabai (PW3)

corroborate each others on the said aspect. Not only that, they

corroborate each other in respect of the query made to the accused

persons about the illness. Upon that, it was disclosed to them that

due to stomach pain, she is being admitted in the hospital. Their

evidence further discloses that thereafter Maroti made an inquiry

with the Medical Officer about the cause of illness of his daughter.

His evidence shows that it was informed to him by the Medical

Officer that his daughter has consumed poison and therefore it

was advised that she should be shifted to the hospital at Yavatmal.

On getting this information, according to the evidence of Maroti

(PW1) and Leelabai (PW3), they asked the accused to leave the

said place. They obliged. Thereafter Maroti again made a query

about the cause of her illness to Nandabai and that time it was

disclosed to her parents by Nandabai that due to harassment, she

has consumed poison.

9. It is not in dispute that from Arni she was referred to

Yavatmal and she was an indoor patient there for 2-3 days.

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However in an unconscious state and ultimately she died on

05.02.2001. Her dead body was handed over and it was taken to

village of the respondents where funeral took place. Thereafter on

07.02.2001, the FIR was lodged.

10. On 02.02.2001 itself Maroti (PW1) and his wife

Leelabai (PW3) were knowing that the accused persons were

responsible for commission of suicide by their daughter Nandabai.

If the evidence of these two witnesses is to be accepted, it is clear

that in presence of the accused persons, Nandabai refused to

divulge anything. However, when they left the place, the cause

for committing suicide was revealed. Thus, the cause for

committing the suicide was well within the knowledge of Maroti

(PW1) and Leelabai (PW3). However, for the reasons best known

to them, they did not approach the police and lodged the report.

No explanation is given for lodging of the FIR at a belated stage.

Prompt lodging of the FIR always rules out the embellishment and

false implications. Here, the conduct of Maroti and Leelabai of

keeping mum for a period of 5 days and not disclosing the cause

for committing the suicide by Nandabai casts serious doubts about

the truthfulness of prosecution case itself. In my view, the said

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aspect is rightly considered by the learned Judge of the Court

below.

11. It is also established on record that the respondent no.1

used to reside separately from his parents with his wife.

12. The evidence of Maroti (PW1) shows that the

respondent no.1 had been to his house and demanded Rs.25,000/-

and the amount was paid by him in presence of Nathu (PW5) who

is maternal uncle of the deceased. However the said claim made

by Maroti (PW1) about handing over of Rs.25,000/- to the

respondent no.1 is not at all corroborated by Nathu (PW5).

Further, though as per the evidence of Maroti (PW1), the

respondent no.1 and one Jyotisingh Ade had been to Yavatmal for

purchasing an auto-rickshaw, on this material aspect, for the

reasons best known to the prosecution, it has not examined the

said Jyotisingh Ade.

13. Though the prosecution has examined Amrut Bhaware

(PW4) and Prabhakar Lokhande (PW8) who are the residents of

village Dolamwadi as independent witnesses to show that the

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deceased was subjected to cruelty by the respondent no.1 on the

count of demand, their statements are recorded at a belated stage,

about 20 to 25 days after the death of Nandabai. After perusing

their evidence it appears that for about 20 to 25 days, they did not

disclose the fact to the police though in their presence the

respondent no.1 assaulted the deceased and thereafter

immediately she committed suicide. In view of the recording of

their belated statement, their introduction in the prosecution case

is not completely ruled out.

14. The prosecution has also examined one Vijay Mansal

(PW7) who is resident of Karanji and whose father in law is

resident of village Dolamwadi. According to this witness when he

had been to his father in law at village Dolamwadi, the respondent

no.1 invited him for tea in his house. He obliged the said request

and when he had been to his house for taking tea, as per the claim

of this prosecution witness, that time there was a request made by

respondent no.1 to convey his demand of Rs.25,000/- to Maroti

(PW1) for purchasing the auto-rickshaw. However, on this

material aspect, evidence of Vijay (PW7) finds no corroboration

from Maroti (PW1).

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15. In my view, the learned Judge of the Court below, after

appreciating the prosecution case has rightly reached to the

conclusion that there was no iota of evidence upon which the

respondent could be convicted for the offence punishable under

Section 498 A of the IPC.

16. Insofar as suicide is concerned, according to the

prosecution, Nandabai committed suicide due to ill treatment. As

observed in the preceding paragraphs, it is clear that in spite of

knowledge Maroti and Leelabai kept mum for a period of 5 days.

Further, the prosecution is not fair to the respondents. When

Nandabai was admitted in the hospital, Police Station Officer, Arni

asked Eknath Gajbhiye, Naib Tahsildar to record dying declaration

of the deceased Nandabai by giving requisition Exh.-74.

Accordingly Shri Eknath Gajbhiye had been to the Rural Hospital

at Arni. There he contacted the Medical Officer. The Medical

Officer in his presence examined Nandabai and gave an

endorsement, Exh.-75 that Nandabai is in a condition to give her

statement. In presence of the Medical Officer, Eknath Gajbhiye

recorded statement of Nandabai. It is at Exh.-76. The said dying

declaration shows that Nandabai accidentally came into contact

11 apeal62.03.odt

with the container which was used for keeping Endosulphan.

17. Though the dying declaration was recorded by Eknath

Gajbhiye, for the reasons best known to the prosecution, the said

dying declaration was not placed on record along with charge-

sheet. This, in my view, it is an intention to suppress material

facts from the Court. It is not expected from the prosecution or

the Investigating Officer to take a side either of the accused or the

complainant. It is the duty of the Investigating Officer to place on

record the collected material during the course of inquiry or the

investigation before the Court and it is the domain of the Court to

appreciate the documents or other evidence collected during the

course of investigation. However, when the prosecution suppresses

and withholds the material evidence collected during the course of

investigation that casts serious doubt about the very truthfulness

of the entire prosecution case.

18. Further, though it is the case of the prosecution that the

deceased committed suicide, the Investigating Officer was required

to cut sorry finger when he was cross-examined by the learned

cross-examiner and he stated that he has neither inquired as to

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what treatment was provided to the deceased Nandabai nor he has

seized the container containing the poisonous substance. All these

facts clearly show that the case against the respondents was not

truthful one and smacks of motive to extend help to the

complainant. The learned Judge of the Court below, in my view,

after appreciating the entire prosecution case has rightly reached

to the conclusion and correctly recorded a finding of acquittal of

the respondents.

19. On reappreciation of the prosecution case, as discussed

above, I have no hesitation in my mind that no error whatsoever is

committed by the learned Court below while acquitting the

respondents. No case is made out for upsetting the well reasoned

judgment recorded by the trial Court. The appeal is therefore

dismissed.

JUDGE

kahale