State Of Maharashtra vs Vaijinjath Lekroba Kendra & ...
2017 Latest Caselaw 2803 Bom

                                                    117.1999 Cri.Appeal.odt
                                         1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO.117 OF 1999 

          The State of Maharashtra         APPELLANT 

                     VERSUS

          1.       Vaijinath Lekroba Kendre,  
                   age 23 yrs.  

          2.       Lekroba Bhujang Kendre,  
                   age 55 yrs.  

          3.       Sow. Gundubai Lekroba Kendre, 
                   age 45 Yrs.  

          4.       Dhondiba Lekroba Kendre, 
                   age : 25 yrs. 

                   All r/o. Brahmawadi, 
                   Tq. Ahmedpur.                    RESPONDENTS 
                                                  [Ori. accused]
                                 ...
          Mr.S.J.Salgare, APP for the Appellant 
          Mr.S.V.Mundhe,   Advocate   for   Respondent   Nos. 
          1 to 4.  
                                 ...
                          CORAM:  S.S.SHINDE & 
                                   S.M.GAVHANE,JJ.      

Date : 06.06.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. This Appeal is filed by the

appellant - State, challenging the judgment

117.1999 Cri.Appeal.odt

and order of acquittal dated 19th November,

1998, passed by the Additional Sessions

Judge, Latur in Sessions Case No.181/1997.

2. The prosecution case in a nutshell

is as under:

The informant Datta Kondiba Chate is

resident of village Brahmawadi. His daughter

namely Vidyabai, when her age was

approximately 7 years, had married with

accused Vaijinath. It is further the case of

the prosecution that, an amount of

Rs.30,000/- was given by Datta towards dowry

to Vaijinath in addition to 5 grams of gold.

According to the prosecution case, Vidyabai

had not attained puberty at the time of

marriage, therefore she was not sent to the

matrimonial home, and resided at her parents

place. It is only after she attained puberty,

Vidyabai was sent to the matrimonial home for

cohabitation.

117.1999 Cri.Appeal.odt

It is further the case of the

prosecution that, accused Vaijinath and his

parents started asking Vidyabai to bring an

amount of Rs.10,000/- and television set from

her parents. They threatened her that failure

to bring Rs.10,000/- and television set would

be seriously viewed, whenever Vidyabai used

to visit parents house; she told about demand

of Rs.10,000/- and television set by the

accused persons.

3. On 1st September, 1996, the informant

Datta was at his home. At about 13.30 hours,

his young children informed him that Vidyabai

was being beaten by her in-laws at

matrimonial place. After receiving such

information, the informant Datta had been to

the place of the accused Vaijinath; there he

noticed that accused Lekroba and his wife

Mandubai were present in the door of the said

house armed with sticks. The accused

Vaijinath was beating Vidyabai with stick.

117.1999 Cri.Appeal.odt

When the informant and his wife tried to

enter in the house, they were prevented by

Lekroba and Mandubai from entering into the

house. There was scuffle between Datta and

Lekroba. Datta was assaulted with the help of

stick. Vidyabai started raising hue and cry

and was asking for help. The accused Lekroba

had threatened to Datta that he would burn

Vidyabai to death and would not allow Datta

to have a look at Vidyabai even when her dead

body is kept on pyre.

4. It is further the case of the

prosecution that, the informant Datta

returned to his house. He has consulted with

his relatives and on next day of the incident

i.e. on 2nd September, 1996, he had been to

Ahmedpur Police Station to lodge the First

Information Report being Crime No.102/1996

for the offences punishable under Sections

498-A, 323, 506, 342, 34 of IPC. An

investigation was entrusted to one

117.1999 Cri.Appeal.odt

Mr.Kulkarni working as Police Head Constable.

It was stated in the said FIR that, on 1st

September, 1996, after the aforementioned

incident had taken place, Vidyabai was

confined in the room. She was not provided

with food on that day. On the next day in the

morning at 11.00 O'clock, another incident

had taken place.

5. As per the prosecution case, accused

no.2 Lekroba stated that, Vidyabai should be

killed by administering poison. Pursuant to

such statement, Vidyabai was caught hold by

Lekroba and Mandubai and pesticides stored in

the house was given by Vaijinath to Vidyabai,

and she was asked to consume the same. The

said pesticides was readily stored in the

house of the Vaijinath for the purpose of

spraying it on cotton crop to save it from

insecticides. After administering poison to

Vidyabai, accused Vaijinath and Lakroba left

the house, leaving Vidyabai confined in a

117.1999 Cri.Appeal.odt

room. Thereafter, one Balaji and Geetabai had

rescued Vidyabai. Thereafter, she was taken

to the Hospital.

6. During the course of investigation,

it was revealed that the accused have

committed offence punishable under Section

307 of the Indian Penal Code. Further the

investigation was entrusted to the Police

Sub-Inspector Mr.Thorat. He recorded the

statement of the witnesses and procured

medico-legal certificate of Vidyabai.

Initially, the accused were arrested and were

produced before the Magistrate at about 3.30

p.m. on 3rd September, 1996. The accused were

remanded to the Magisterial custody. On the

same day, the accused were again produced

before the Court of Magistrate for the

offence punishable under Section 307 of the

IPC and their police custody was obtained.

Thereafter, the Investigating Officer

completed investigation and the charge-sheet

117.1999 Cri.Appeal.odt

came to be filed in the Court of Judicial

Magistrate First Class, Ahmedpur. Since the

case was triable by the Sessions Court, the

same was committed to the Court of Session at

Latur.

7. The learned Additional Sessions

Judge, Latur framed charge against the

accused for the offences punishable under

Sections 498-A, 307, 342, 323 and 506 r/w.34

of the IPC to which accused pleaded not

guilty and claimed to be tried. Their defence

is denial. In defence they examined Ujjwala

Kendre at Exh.36.

8. The prosecution in support of its

case has placed reliance on ocular as well as

documentary evidence, which is consisting of

spot panchnama [Exh.11], complaint [Exh.13],

case papers maintained by the Hospital [Exh.

21], Medico-legal certificate [Exh.22],

Remand reports [Exh.28 and 29], transfer

117.1999 Cri.Appeal.odt

certificate issued by the Primary Health

Centre, Ahmedpur [Exh.31], admission card of

Ambejogai Hospital [Exh.32] and the

certificate issued by Ambejogai Hospital

[Exh.33]. So far as ocular evidence is

concerned, it is consisting of testimonies of

complainant Datta [Exh.12], Vidyabai [Exh.

14], Balaji [Exh.15], Surekha [Exh.18],

Vishnu Padapure the Medical Officer [Exh.20],

Geetabai [Exh.26], Constable Vasant Kulkarni

[Exh.27], Dr.Suresh Lakhne [Exh.30], and

Bhaskar Thorat is the Investigating Officer

[Exh.34]. The trial Court, after full-fledged

trial, acquitted the accused. Hence this

Appeal preferred by the State of Maharashtra

against the order of acquittal.

9. We have heard the learned APP

appearing for the appellant-State, and the

learned counsel appearing for the respondents

- accused. The learned APP appearing for the

State submits that, ocular testimony of

117.1999 Cri.Appeal.odt

Vidyabai [PW2] ought to have been believed by

the trial Court. There was no reason to

disbelieve her deposition recorded before the

Court. She herself is a victim. She has

stated in detail the manner in which

harassment and ill-treatment was given to her

by the accused, so as to ensure fulfillment

of their unlawful demand of Rs.10,000/- and a

television set. He invites our attention to

her deposition before the Court and submits

that, same is trustworthy and inspires

confidence, and therefore, the judgment and

order of acquittal deserves to be quashed and

set aside.

10. It is submitted that, Vidyabai has

attributed specific overt act qua each of the

accused. An involvement of the accused in the

commission of offence was active, and due to

administering pesticides to Vidyabai, she was

unconscious for two days and treated as an

indoor patient. She was taken to the Hospital

117.1999 Cri.Appeal.odt

by Balaji and Geetabai. It is submitted that,

after she was compelled to consume the

pesticide, she was confined in one room of

the house, and the door of the said room was

latched from outside. One Geetabai and Balaji

rescued her from the said room and she was

taken to the Hospital. It is further

submitted that, father of Vidyabai namely

Datta is resident of same village i.e.

Brahmawadi. He invites our attention to the

evidence of Datta [PW-1] and submits that, he

has categorically stated in his deposition

about unlawful demand by the accused and also

harassment and ill-treatment given by the

accused to her on non-fulfillment of said

demand due to the poor financial condition of

Datta. Datta [PW-1] has stated in his

evidence that one day before the incident,

the accused assaulted Vidyabai. Datta [PW-1]

and his wife rushed to her house. However,

they were not allowed to enter inside the

117.1999 Cri.Appeal.odt

house by the accused and on second day, they

compelled her to consume pesticides. It is

submitted that, the evidence of other

prosecution witnesses also supports

prosecution case. He invites our attention to

the deposition of Geetabai and Balaji before

the Court and submits that, their evidence

clearly supports version of Vidyabai, and

therefore, the prosecution case deserves to

be accepted. He invites our attention to the

medical evidence and submits that, the

Medical Officer has deposed that, the

poisonous substance was found in stomach

during the medical examination of Vidyabai.

11. On the other hand, the learned

counsel appearing for the respondents

[original accused] submits that, the evidence

of the prosecution witness suffers from the

serious infirmities, contradictions,

omissions and improvements. He submits that,

if really the incident of beating of Vidyabai

117.1999 Cri.Appeal.odt

had happened on 1st September, 1996, no

reasons are brought on record for not lodging

the FIR on very same day. He submits that,

there was inordinate delay in lodging the

FIR, and the same has not been explained by

the prosecution. It is submitted that, though

the FIR is lodged by the Datta [PW-1] on 2nd

September, 1996 at 3.00 p.m., there is no

mention in it of an alleged incident of

compelling Vidyabai to consume pesticides

even though according to the prosecution

case, incident of administering pesticides

has happened at about 12.30 p.m. on 2nd

September, 1996. He submits that, the

inferences drawn by the trial Court are on

the basis of the evidence on record. The

trial Court, upon appreciation of the entire

evidence, reached to the conclusion that,

ocular evidence of Vidyabai does not inspire

confidence, and therefore, does not deserve

acceptance. If really there would have been

117.1999 Cri.Appeal.odt

continuous harassment and ill-treatment on

account of non-fulfillment of demand of

Rs.10,000/- and television set, in that case

Datta [PW-1] or Vidyabai [PW-2] ought to have

lodged the FIR/complaint promptly. The

prosecution has not brought anything on

record to show that, either Datta [PW-1] or

Vidyabai [PW-2] lodged such FIR or complaint

prior to alleged incidents on 1st September,

1996 and 2nd September, 1996. It is submitted

that, nothing was recovered from the spot of

incident, and therefore, the prosecution case

that pesticides was readily available in the

house of the accused is not supported by

bringing any evidence on record. It is

submitted that, in absence of any cogent and

sufficient evidence available on record, the

trial Court has given benefit of doubt to the

accused, and therefore, the order of

acquittal deserves no interference.

12. The FIR was filed by Datta [PW-1].

117.1999 Cri.Appeal.odt

Upon careful perusal of his deposition before

the Court, he stated about incident dated 1st

September, 1996. Though the alleged incident

had happened on 1st September, 1996, he lodged

the FIR on 2nd September, 1996, at about 15.20

hours. As per the prosecution case, the

incident of compelling Vidyabai [PW-2] to

consume the pesticides had happened on 2nd

September, 1996, at about 12.00 noon. Upon

careful perusal of the contents of the FIR,

there is no whisper about the said incident,

though FIR came to be lodged at about 15.20

hours on 2nd September, 1996. There is delay

of one day in lodging the FIR about the

incident dated 1st September, 1996. The said

delay is not explained by the prosecution,

therefore, it creates serious doubt about

such alleged incident of assaulting Vidyabai

[PW-2] by her husband Vaijinath. Upon careful

perusal of the evidence of Medical Officer,

namely Vishnu Pandurang Padapure [PW-5], who

117.1999 Cri.Appeal.odt

examined Vidyabai, there is no whisper in his

evidence that, he noticed injuries or

contusions and any other marks, and

therefore, ocular evidence of PW-1 and PW-2

that, Vaijinath assaulted Vidyabai on 1st

September, 1996, by stick gets falsified.

Datta [PW-1] has admitted in his evidence

that, when Vidyabai was sent to the

matrimonial home, for initial one year there

was no any harassment or ill-treatment to

Vidyabai by the accused. If the ill-treatment

and harassment was started two years prior to

the alleged incident; it was but quite

natural for Datta or Vidyabai to lodge the

FIR / complaint. However, the prosecution has

not brought anything on record to suggest

that, prior to the alleged incident such FIR

or complaint was lodged alleging therein

harassment or ill-treatment by the accused.

It is also stated by Datta [PW-1] in his

deposition that, when he himself and his wife

117.1999 Cri.Appeal.odt

attempted to enter in the house, but they

were prevented by accused nos.2 to 4 and

Vaijinath was beating Vidyabai inside the

house. It is also stated by Datta [PW-1]

that, accused nos.2 to 4 assaulted him and

his wife. However, the prosecution has not

brought on record any medical evidence to

suggest that, as a matter of fact they were

assaulted. It appears that, Datta and

Vaijinath are resident of the same village,

and the house of the accused is at the

distance of about 100 to 200 feet from the

house of Datta [PW-1]. During cross

examination, Datta [PW-1] stated that, on 1st

September, 1996, when he witnessed the

incident at about 1.00 p.m., he felt that,

Vidyabai's life is in danger. If really

Vidyabai's life was in danger, Datta [PW-1]

should have immediately rushed to the Police

Station to lodge the FIR. However, he

candidly admitted in his cross examination

117.1999 Cri.Appeal.odt

that, he did not feel it necessary to go

immediately to the Police Station to lodge

the FIR. It further appears that, though he

has named Shantabai Sugriv Chate and Kushabai

Sangram Ghuge as eye witnesses to the alleged

incident of 1st September, 1996, nevertheless

the prosecution did not examine said two

witnesses.

13. Upon careful perusal of the evidence

of Vidyabai, she stated that, for about one

year after she went for cohabitation, she was

happy in the matrimonial home. She has also

stated that, she was beaten by Vaijinath by

stick, and other accused were present in the

door of the house with sticks, and they did

not permit her parents to enter into the

house. Admittedly, the mother of Vidyabai is

not examined by the prosecution for the

reasons best known to it. Vidyabai [PW-2]

further stated that, her parents were

assaulted by the accused, however, as already

117.1999 Cri.Appeal.odt

observed, the prosecution has not brought on

record any medical evidence by way of

corroboration to lend support to ocular

evidence of Vidyabai or her parents. She

further stated in her evidence that, the

pesticide was available in the house, and her

husband poured pesticide in small pot, and he

compelled her to drink it. In the first

place, the Investigating Officer did not

recover anything incriminating material from

the house of the accused, and secondly, if

really Vidyabai was compelled to consume such

pesticides, in that case, it was incumbent

upon the prosecution to seek opinion of C.A.

14. It is true that, Vishnu Padapure,

Medical Officer [PW-5] in his evidence

deposed that, the poisonous substance was

found in the stomach of Vidyabai on medical

examination. However, the same was not sent

to C.A. so as to ascertain whether the

consumed substance was pesticides. When it

117.1999 Cri.Appeal.odt

was specific case of the prosecution that,

the pesticides, which was available in the

house of the accused, was consumed by

Vidyabai; it was but natural to seek report

from the expert, to ascertain whether the

said poisonous substance was pesticides or

not. Though PW-2 Vidyabai in her statement

stated that, she was unconscious for two

days, however, when in her deposition she

narrated history as to how she was taken to

Mogha, who admitted her in Government

Hospital, and thereafter, how the Doctor

examined her and she was taken for better

treatment in the Government Hospital at

Ambajogai, her statement that, she was

unconscious for two days does not inspire

confidence. Though she stated that she was

taken to Mogha by Geetabai and Balaji, the

Medical Officer, Vishnu Padapure [PW-5], in

his cross examination stated that, the

patient was brought to the Hospital by

117.1999 Cri.Appeal.odt

father-in-law of Vidyabai, as per the entry

in the M.L.C. register. He specifically

denied suggestion that, patient was admitted

in his Hospital by two ladies, and Lekroba

was brought to the Hospital by the Police. He

has specifically admitted in his cross

examination that, for analysis of contents,

the material has to be referred to the C.A.

office. The opinion of the C.A. is conclusive

in such cases. In the present case, the

stomach contents were not referred to C.A.

for analysis. No tests were taken by him for

finding out the contents in the stomach

fluid. Therefore, the admission given by PW-5

goes to the root of the matter inasmuch as

the prosecution has not proved that, the

stomach contents were removed from the

stomach of Vidyabai contained pesticides. It

is also necessary to make reference to the

evidence of the defence witness no.1 namely

Ujwala Kendre, who is the wife of the brother

117.1999 Cri.Appeal.odt

of Vaijinath. In her evidence, she stated

that, atmosphere in the house was happy,

healthy, and congenial and no such incident

had happened as alleged by the PW-1 or PW-2

in the matrimonial house. It is also relevant

to make reference to the evidence of

Geetabai [PW-6]; in her deposition, she

stated that Vidyabai was happy at the place

of her in-laws. She did not know anything

about the incident. She was told by a young

girl that, Vidyabai has consumed poison,

while she was proceeding towards the field at

about 11 O'clock in the morning. The name of

informant is Surekha. She had been to the

place of Vidya i.e. the house of the accused.

Vidya was present in the house. She did not

notice anything at the spot. She reached to

the Hospital. The mother in law of Vidyabai

was with her. She did not notice anything

containing poison at her house i.e. the house

of the accused.

117.1999 Cri.Appeal.odt

15. The prosecution examined Vasant

Anandrao Kulkarni - Investigation Officer as

PW-7. In his deposition he stated that, no

poison was found at the place of accused when

search was taken before drawing panchnama of

scene of offence.

16. Upon careful perusal of the evidence

of the prosecution witnesses. Their evidence

so far actual incident is concerned, does not

appear to be consistent, and the evidence of

PW-1 and PW-2 does not inspire confidence.

Upon careful perusal of the findings recorded

by the trial Court, those appears to be in

consonance with the evidence brought on

record. The view taken by the trial Court is

plausible. In that view of the matter, we do

not think that, this is a fit case to reverse

the order of acquittal.

17. In the light of the discussion in

the foregoing paragraphs, an inevitable

117.1999 Cri.Appeal.odt

conclusion is that, the appeal shall fail,

and accordingly, the same stands dismissed.

The bail bonds of the respondents-accused

stand cancelled.

              [S.M.GAVHANE]             [S.S.SHINDE]
                  JUDGE                     JUDGE  
          DDC