Ginyandeo Shrirang Phad & Ors vs State Of Maha
2017 Latest Caselaw 4989 Bom

                                                           Cri.Appeal No.243/2003
                                        1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                         CRIMINAL APPEAL NO. 243 OF 2003

1.      Ginyandeo s/o Shrirang Phad,
        Age 53 years, Occu. Agri.,
        R/o Koyal, Taluka Majalgaon,
        District Beed

2.      Babu s/o Ginyandeo Phad,
        Age 33 years, Occu. and
        R/o as above

3.      Sumitrabai w/o Ginyandeo Phad,
        Age 48 years, Occu. Household,
        R/o Koyal, Taluka Majalgaon,
        District Beed                                   ..The Appellants

                Versus

1.      The State of Maharashtra,

2.      Sakharam Kondiba Mundhe,
        Age 35 years, Occu. Agri.,
        R/o Koyal, Taluka Dharur,
        District Beed                                   ..The Respondents

Mr P.B. Rakhunde with Mr A.P. Munde and S.A. Munde Advocates for
appellants
Mrs P.V. Diggikar, A.P.P. for respondent no.2
Respondent No.1
                                      CORAM : A.M. DHAVALE, J.

DATE : 25th July 2017

ORAL JUDGMENT

1. This is an appeal by three accused from Sessions Case

No.8/2000 in the Sessions Court at Beed, who were convicted and

sentenced as follows :

Section 306 r.w. Three years rigorous imprisonment and to Sec.34 of the I.P.C. pay fine of Rs.3,000/-, in default to suffer rigorous imprisonment Section 34 for six months.

Section 506 r.w. Six months rigorous imprisonment and to Sec.34 of the I.P.C. pay fine of Rs.500/-, in default to suffer rigorous imprisonment for one month.

Cri.Appeal No.243/2003

2. It was directed that substantive sentences shall run

concurrently and if the fine is paid, compensation of Rs.5,000/- should

be paid to P.W.1-Sakharam out of fine amount. The impugned

judgment was delivered by the IV Additional Sessions Judge, Beed in

Sessions Case No.8 of 2000 on 6th March 2003.

3. The prosecution case may be stated as follows :

4. On 28th April 1999, P.W.1-Sakharam lodged F.I.R. Exh.45 at

Shirsala Police Station, Taluka Dharur, District Beed. As per F.I.R., he

was having six sisters including accused No.3 - Sumitra. Deceased

Rahibai was his wife. He was having twelve acres agricultural land.

Accused No.1- Giyandeo is husband of his sister P.W.3-Sumitra, while

accused No.2 Babu is son of accused Nos.1 and 3. It is alleged in the

F.I.R. that accused Nos.1 and 2 were asking him and his wife to effect

partition of his agricultural land and to allot separate share of his

sister - accused No.3-Sumitra. On that count, they were abusing and

assaulting him. When they were trying to proceed to the Police

Station, they were obstructed. On 26th April 1999, at 11.00 a.m.,

accused Nos.1 and 2 came in front of their house and started abusing

him and his wife. Both of them again made demand for partition and

separate possession of share of accused No.3 - Sumitra and started

assaulting them. Due to fear, his wife Rahibai went inside the house,

latched the door. The accused started pelting stones on the door.

Hence, at about 12.00 noon, Rahibai consumed poisonous insecticide

and became unconscious. She was shifted to Civil Hospital at

Ambejogai, but on 28th April 1999, at 2.25 p.m. she died. Initially,

F.I.R. was filed only against accused Nos.1 and 2, but supplementary

statement shows allegations against accused No.3 as well. On the

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basis of this F.I.R., the crime was registered at C.R. No.45/1999 under

Sections 306 read with Sec.34 and 506 read with Sec.34 of the Indian

Penal Code at Shirsala Police Station and the same was investigated

into by P.W.5 A.P.I. Citikar. During investigation, spot panchnama was

drawn and a tin containing poisonous insecticide was seized from the

spot. The marks of pelted stones on the door were noted. Some

stones were found near the door. The Investigating Officer recorded

statements of material witnesses. The body was subjected to post

mortem and the viscera and tin of poisonous insecticide were sent for

chemical analysis. After completion of investigation, the charge-sheet

was submitted in the Court of Magistrate. In due course, the case was

committed to the Court of Sessions at Beed. The charge was framed

against all the accused at Exh.31, for offences punishable under

Sections 306 read with Sec.34, 504 read with Sec.34, 506 read with

Sec.34 and 341 read with Sec.34 of the Indian Penal Code. The

accused pleaded not guilty. The defence of the accused is of total

denial. The learned Additional Sessions Judge found the evidence

sufficient to hold the accused Nos.1 to 3 guilty under Sections 306

read with Sec.34 and 506 read with Sec.34 of the Indian Penal Code.

He then convicted and sentenced them as referred above.

5. Learned Advocate Mr P.B. Rakhunde for the appellants made

following submissions :

(I) The acts alleged against the appellants do not amount to

abetment to commit suicide;

(II) There are discrepancies in the evidence of witnesses and there

is no medical evidence or any complaint lodged about the previous

Cri.Appeal No.243/2003

incidents of assault and abusing. The allegations are vague and the

witnesses are not trustworthy;

(III) The suicide itself is not proved. The chemical analysis report

shows no poison detected in the viscera.

6. Learned A.P.P. Mrs Diggikar supported the judgment of the trial

Court. She relied on oral dying declaration of deceased Rahibai made

before P.W.1-Sakharam and the evidence about assault, abusing and

stone pelting by the accused. Besides, there was seizure of

insecticide tin from the spot. She submitted that the accused were

demanding partition and separate share of land of accused No.3 -

Sumitra, who is sister of P.W.1-Sakharam. Therefore, there was

motive for them to commit the crime. The acts of the accused if taken

together amount to abetment to commit suicide by Rahibai. Hence,

the conviction and sentence need no interference.

7. The points for determination and with my findings thereon are

as follows :

(I)     Whether Rahibai committed suicide ?             .. Not proved


(II)    Whether accused Nos.1 and 2 in
        furtherance of their common
        intention abetted Rahibai for
        committing suicide ?                            .. Not proved


        in furtherance of their common
        intention intimidated Rahibai
        and her husband ?                               .. Not proved





                                                           Cri.Appeal No.243/2003


(IV)    Whether any interference is
        necessary in the conviction
        and sentence ?                                  ..In the affirmative


(V)     What order ?                                    ..The accused are
                                                        acquitted of all the
                                                        offences

                                  REASONS

8. The prosecution has examined following witnesses :

1 P.W.1-Sakharam Husband of deceased Rahibai. He has proved F.I.R. Ex.45 2 P.W.2-Satyabhama Step mother of deceased Rahibai

3 P.W.3-Pandurang Panch witness to spot-cum-seizure panchnama Exh.52 4 P.W.4-Raghunath Father of deceased Rahibai

5 P.W.5-A.S.I. Citikar (Investigating Officer)

9. The following documents were produced and are marked as

Exhibits.

(a)     F.I.R. dated 28th April 1999 Exh.45

(b)     Post mortem notes Exh.47

(c)     Chemical Analyser's report dated 14th October 1999 Exhs.48, 49

(d)     Spot Panchnama Exh.52 where tin of poisonous insecticide was

        seized.

(e)     Inquest panchnama Exh.54




Point No.1 :

10. As per oral evidence on record, on 26 th April 1999, deceased

Rahibai, in the wake of attack by accused Nos.1 and 2 got herself

Cri.Appeal No.243/2003

confined in the house and consumed poisonous insecticide. The post

mortem Exh.47 shows that there are no surface wounds or internal

wounds. Her lungs as well as spleen and kidney were found

congested. Stomach contained 200 cc of drowsy fluid having

abnormal smell. The viscera was preserved and the opinion was

'suspected poisoning' subject to report of viscera. The reports of

Chemical Analysts are at Exhs.48 and 49. Though report Exh.49

shows that the tin found on the spot was containing a poisonous

insecticide "Organophosphorus insecticide Dimethoate", the viscera

testing did not reveal any poison. There is oral evidence to show that

on 26th April 1999, after consumption of poison, Rahibai was

immediately shifted to Civil Hospital, Ambejogai. The doctors might

have washed her stomach and might have removed the poison, but

the prosecution has not examined the Medical Officer, who has

treated her. She died on 28th April 1999 at 2.25 p.m. The absence of

medical evidence during the period of her treatment is a major lacuna

in the prosecution case. When the chemical analysis report does not

show any poison in the viscera, the only inference can be drawn that

death of Rahibai by commission of suicide has not been proved.

Hence, I answer point No.1 as not proved.

Points No.2 and 3:

11. The above evidence of absence of poisonous substance in the

viscera creates considerable doubt about the prosecution story

narrated by the witnesses who stated that Rahibai had committed

suicide by poisoning. It was utmost necessary to examine the Medical

Officer but the absence of medical evidence does not help the Court

to find out the veracity of the witnesses.

Cri.Appeal No.243/2003

12. Deceased Rahibai was wife of P.W.1 - Sakharam. It is not a

case of death of a bride. Accused No.3 - Sumitra is wife of accused

No.1 and accused No.2 is their son. They were residing separately.

P.W.1 - Sakharam deposed that the accused were demanding

partition and separate possession of share of P.W.3-Sumitra from him

and Rahibai. It is obvious that Rahibai had no role to play in the

partition claimed. Evidence of P.W.1 Sakharam shows that accused

Nos.1 to 3 since two months prior to Deewali festivel were coming to

his house and were assaulting him and his wife so that they should

effect partition. They were alleging that Rahibai was instigating

P.W.1-Sakharam not to effect partition. It is alleged that accused

Nos.1 to 3 assaulted her by pelting stones and slapping and when

P.W.1 - Sakharam and Rahibai were proceeding to Pollice Station to

report the matter, they were obstructed. There was continuous

assault and such obstructions for two months before the incident. On

the date of incident, all the three accused came there and started

pelting stones on the house of P.W.1-Sakharam. They had entered his

house and slapped him and his wife and due to fear, P.W.1-Sakharam

fled away while Rahibai confined herself in the house, bolted the door

and consumed poison. After sometime, P.W.1-Sakharam came to

house from backside. At that time, Rahibai told him that the accused

had assaulted her and him and, therefore, she had consumed poison.

She was shifted to Civil Hospital at Ambejogai but during treatment,

after two days, she succumbed to poisoning. He has proved F.I.R.

Exh.45. P.W.2 Satyabhama is step mother of Rahibai and wife of

P.W.4 Raghunath. She had also stated that accused Nos.1 to 3 were

asking her son-in-law to effect partition and used to quarrel and

Cri.Appeal No.243/2003

assault her daughter and son-in-law. Rahibai had visited four hours

before the incident and at that time, she and her husband had told her

about the assaults and demands of partition. So, she accompanied

Rahibai to her house. She stated that the accused pelted stones on

the house of her son-in-law. Her son-in-law ran away from backside of

the house. Rahibai latched the door. After some time she came out

of the house in search of her son-in-law, at that time Rahibai bolted

the door and consumed the poison. P.W.4 Raghunath was not present

at the time of incident. He is just the supporting witness. P.W.3 -

Pandurang is spot panch. He has deposed about drawing of

panchnama. He is residing in the same edifice in which P.W.1

Sakharam was residing. Police found one tin containing poisonous

insecticide on the spot. It was a tin of one litre in which there was

liquid of 100 ml. as per chemical analysis report.

13. The material witnesses P.W.1 - Sakharam, P.W.2 - Satyabhama

and P.W.4 - Raghunath were cross-examined. Their evidence shows

following facts :

14. The allegations regarding assault, abusing, demand of partition

are vague. There are no specific instances with date time or place or

who had assaulted whom, what was the nature of assault. Alleged

assault was only by hand and there was no weapon. There was no

complaint lodged about the previous assault. There is no medical

evidence to support the allegation of assault by accused Nos.1 to 3 as

against P.W.1-Sakharam and deceased Rahibai. P.W.1-Sakharam

stated that at the time of funeral of Rahibai, he did not discuss with

his father-in-law or with other sisters about the incident and about

Cri.Appeal No.243/2003

lodging of F.I.R. P.W.2-Satyabhama, step mother of Rahibai has

admitted that Rahibai was the only daughter of her father and was the

legal heir in case of his death. The accused and Rahibai had

demanded partition in the property of P.W.4 - Raghunath. At that

time P.W.2-Satyabhama, P.W.4-Raghunath had declined to effect

partition. On the contrary, they sold their four acres of land at

Rajewadi. Subsequently, she stated that the land was sold after death

of Rahibai. Their admissions disclose another reason for Rahibai to

commit suicide. Panch Pandurang though supported the prosecution,

he also supported the accused in cross-examination by stating that

the panchnama was already written. He signed the panchnama and

left the spot. Evidence of P.W.4-Raghunath is not very material.

P.W.2 is a chance witness. The post mortem report shows no injury on

body of Rahibai. P.W.1 - Sakharam has also not gone to any doctor

for treatment. Their vague evidence cannot be believed.

15. Even if the allegations against accused Nos.1 to 3 regarding

assault, abusing and pelting stones are accepted at its face value, still

these acts will not amount to instigation, aiding or entering into

conspiracy, which would amount to abetment, as defined under

Section 107 of the Indian Penal Code. Though such acts may be

offences under other Sections, those will not amount to abetment, as

contemplated under Section 306 of the Indian Penal Code.

16. Most material fact is that the viscera report shows that there

was no poison and there is no medical evidence. In the light of these

facts, the conviction of the accused under Section 306 read with

Section 34 of the Indian Penal Code is not sustainable. Once the

Cri.Appeal No.243/2003

witnesses are not believed on the major aspects, they cannot be

believed for minor offence under Section 506 read with Sec.34 of the

Indian Penal Code. The learned Judge of the trial Court has not

properly appreciated the evidence in the light of above facts. Hence, I

answer point Nos.2 and 3 as not proved and pass the following order:

ORDER

1. The appeal is allowed.

2. The conviction under Section 306 read with Sec.34 and Section 506

read with Sec.34 of the Indian Penal Code against accused Nos.1 to 3

(appellants) and the sentence passed thereunder by the IV Additional

Sessions Judge, Beed in Sessions Case No.8 of 2000 by judgment dated

6th March 2003 are set aside. The order regarding award of compensation

is also set aside.

3. The appellants are acquitted of all the charges. Their bail bonds

stand cancelled. The appellants shall furnish fresh bail bonds of

Rs.5,000/- each with one surety in the like amount under Section 437-A of

the Indian Penal Code.

( A.M. DHAVALE, J.)

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