Uttam S/O Kisan Gawande & 2 Others vs State Of ...
2017 Latest Caselaw 2951 Bom

                  Judgment

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                                                         1

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

                                 CRIMINAL APPEAL NO.306 OF 2001

                  1. Uttam s/o Kisan Gawande,
                  Aged about 60 years.
 Dismissed as 
 abated as per 
     order 
Dtd.10.12.2015
                  2. Sanjay s/o Uttam Gawande,
                  Aged about 20 years.

                  3. Raju s/o Uttam Gawande,
                  Aged about 22 years.

                  All resident of Waghoda, Tahsil
                  Mangrulpir, District Washim.(In Jail)       ..... Appellants.

                                                  ::   VERSUS   ::

                  State of Maharashtra, through
                  P.S.O. Mangrulpir, District Washim.    ..... Respondent.
                  ==============================================================
                            Shri V.D. Muley, Counsel for the Appellants.
                            Mrs. T.H. Udeshi, Addl.P.P. for the Respondent/State.
                  ==============================================================


                                                CORAM : V.M. DESHPANDE, J.

                                                DATE     : JUNE 8, 2017.

                  ORAL JUDGMENT

1. The present criminal appeal is directed

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against judgment and order of conviction dated

11.10.2001 passed by learned Additional Sessions Judge,

Washim, in Sessions Trial No.10 of 2000, whereby

learned Judge of the Court below convicted appellant

No.1/original accused No.1 Uttam Kisan Gawande,

appellant No.2/original accused No.2 Sanjay Uttam

Gawande, and appellant No.3/original accused No.6 Raju

Uttam Gawande for the offence punishable under

Section 498-A read with Section 34 of the Indian Penal

Code and sentenced to suffer rigorous imprisonment for

two years and to pay a fine of Rs.500/-. Learned Judge

also convicted them for the offence punishable under

Section 304-B read with Section 34 of the Indian Penal

Code and are sentenced to suffer rigorous imprisonment

for eight years and to pay fine of Rs.1000/- by each of

them, in default of payment of fine, they are directed to

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suffer rigorous imprisonment for six months. The

remaining three accused were acquitted by learned

Judge of the Court below for which they were charged.

2. During the pendency of the present criminal

appeal, original accused No.2, who is appellant No.2,

Sanjay Gawande expired and, therefore, vide order

10.12.2015 his appeal was ordered to be abated.

3. Undisputedly, marriage of deceased Shila was

performed with Samadha Uttam Gawande, original

accused No.5, on 27.5.1996. Original accused Nos.1 and 4

Uttam Gawande and Sau. Chabutai Uttam Gawande are

the parents-in-law. Original accused Nos.2 and 6 Sanjay

Uttam Gawande and Raju Uttam Gawande are the

brothers-in-law of deceased Shila whereas original

accused No.3 Sau. Ujwala Shankar Tikar is sister-in-law

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of deceased Shila.

4. First Information Report is lodged by PW1

Pralhad Namdeorao Kadu. The same is at Exhibit 42.

As per the said report, deceased Shila is his youngest

sister and after her marriage, that was performed with

accused No.5 Samadhan Gawande on 27.5.1996, she

started residing with her matrimonial house. It is

stated in the first information report that after the

marriage, she was having harassment at the hands of

her father-in-law Uttam Gawande, mother-in-law

Chhabubai, brothers-in-law Sanjay and Raju, and sister-

in-law Sau. Ujwala and they used to demand money

from her. On the basis of disclosure about ill-treatment

to her, a report was lodged on 13.4.1997 for the offence

punishable under Section 498-A of the Indian Penal

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Code and that case was registered in the Court of

learned Judicial Magistrate First Class at Mangrulpir,

District Washim. After the said case was initiated, his

sister deceased Shila was staying along with first

informant for a period of six months. Thereafter, with

the intervention of the respectable persons from the

society, the matter was compromised. Deceased Shila

again returned to her matrimonial house. She stayed

there for a period of ten months. During this time,

when deceased Shila was brought back for 'Diwali-

Festival', that time also she disclosed about her ill-

treatment at the hands of her in-laws. Original accused

No.5 Samadhan reached to her parental house to fetch

her. That time, he was asked by the first informant that

there should not be an ill-treatment to her and on his

assurance, she was again sent to Waghoda. Thereafter,

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when the first informant had been to the matrimonial

house of deceased Shila, that time also she disclosed ill-

treatment to her by her father-in-law and in-laws. On

30.12.1998, he received an information about the death

of his sister deceased Shila. Thereafter, he and his

uncle PW2 Vithal Deobaji Kadu had been to Waghoda.

That time, they noticed the dead body of deceased Shila

was lying in the agricultural field of the accused

persons and they noticed ligature marks on her neck.

Therefore, they lodged the report.

5. The records show that initially on 31.12.1998

Police Patil Govindrao Baxiram Chauhan gave a report

to Police Station at Magnrulpir. The said report is at

Exhibit 49. On the basis of the said report, an

accidental death was registered vide A.D. No.69 of 1998

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by Police Head Constable Gaffar.

6. PW6 Police Sub Inspector Deorao s/o

Chintaman Khanderao was discharging his duties in the

Police Station at Mangrulpir. Accidental death, A.D.

No.69 of 1998, was referred to him for inquiry. During

the inquiry of said accidental death, he visited the place

of incident and prepared panchanama of the spot of

occurrence. The same is at Exhibit 51. The inquest was

also conducted over dead body of deceased Shila. The

inquest panchanama is at Exhibit 52. Thereafter, he

referred the dead body of deceased Shila to the

Municipal Hospital at Karanja with a requisition letter

for the postmortem. The Autopsy Surgeon conducted

autopsy over the dead body of deceased Shila and the

postmortem reports are available on record at Exhibit

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54.

In the meanwhile, PW1 Pralhad Kadu lodged

a report Exhibit 42. The report was disclosing

commission of cognizable offence. Therefore, the

investigating officer registered offences punishable

under Sections 302 and 498-A read with Section 34 of the

Indian Penal Code vide Crime No.219 of 1998. He

arrested accused No.1 Uttam Gawande and accused No.5

Samadhan Gawande, the husband of deceased Shila, on

31.12.1998. Subsequently, he arrested accused No.2

Sanjay Gawande and accused No.6 Raju Gawande on

6.1.1999. When accused No.1 Uttam was in police

custody remand, he voluntarily made a disclosure

statement to the investigating officer in the presence of

PW4 Pramod Atmaram Patil and agreed to show the

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place where the rope, which was used in commission of

offence, is kept. The proceeding of his voluntary

statement is recorded and found at Exhibit 59.

Consequent to recording of the disclosure statement,

the investigating officer was led by accused No.1 Uttam

to the spot where from the rope was recovered and it

was seized. Recovery panchanama is at Exhibit 60.

After completion of other usual investigation, the

investigating officer filed the charge-sheet in the Court

of learned Judicial Magistrate Fist Class at Mangrulpir,

District Washim.

Learned Magistrate found that the offence is

exclusively triable by the Court of Sessions and,

therefore, he committed the case to the Court of

Sessions.

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7. Learned Additional Sessions Judge at

Washim, on whose file Sessions Trial No.10 of 2000 was

allotted, framed a charge against the present appellants

and other accused persons for the offence punishable

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

Penal Code so also for the offence punishable under

Section 302 read with Section 34 of the Indian Penal

Code. All the accused persons abjured their guilt and

claimed for their Trial.

8. In order to bring home the guilt of the

appellants, the prosecution examined in all six

witnesses and also relied upon the documents which

were duly proved during the course of the Trial.

9. After appreciation of the prosecution case,

learned Judge of the Court below acquitted all the

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accused persons for the offence punishable under

Section 302 read with Section 34 of the Indian Penal

Code. Learned Judge of the Court below also acquitted

original accused No.3 Sau. Ujwala Tikar, accused No.4

Sau. Chhabutai Gawande, and accused No.5 Samadhan

Gawande for all the offences. However, learned Judge

of the Court below convicted accused No.1 Uttam,

accused No.2 Sanjay, and accused No.6 Raju for the

offence punishable under Section 498-A read with

Section 34 of the Indian Penal Code so also for the

offence punishable under Section 304-B read with

section 34 of the Indian Penal Code and passed the

sentence as observed in the opening paragraph of the

judgment. Hence, this appeal.

10. It is to be noted here that the State did not

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prefer any appeal against acquittal of all the accused

persons for the offence punishable under Section 302

read with Section 34 of the Indian Penal Code. The

State also did not prefer any appeal against the

acquitted accused even for the offence punishable

under Section 304-B read with Section 34 of the Indian

Penal Code.

11. I have heard learned counsel Shri V.D. Muley

for the appellants and learned Additional Public

Prosecutor Mrs. T.H. Udeshi for the respondent/State in

extenso.

12. Learned counsel Shri V.D. Muley for the

appellants has urged before me that the conviction of

the accused persons for the offence punishable under

Section 304-B is not sustainable in the eyes of law in

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view of the fact that they were never charged for the

offence punishable under Section 304-B of the Indian

Penal Code. He has also submitted that at no point of

time any opportunity was given o them to explain their

case vis-a-vis the charge under Section 304-B of the

Indian Penal Code. He relied on the Apex Court

decision in the case of Shamnsaheb M. Multani ..vs..

State of Karnataka, reported at (2001)2 SCC 577. He has

also submitted that looking to the quality of the

evidences, adduced during the course of the Trial, it is

crystal clear that the ingredients of Section 304-B of the

Indian Penal Code are not at all attracted. He has also

submitted that the allegations against the appellants

are vague and general in nature and, therefore, on such

type of evidences they cannot be convicted. Further, it

is his submission that on very same evidence one set of

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accused persons are acquitted by learned Judge of the

Court below and, therefore, same evidence cannot be

used for convicting the present appellants. Therefore,

he has submitted that the appeal be allowed and the

appellants be acquitted.

13. Per contra, learned Additional Public

Prosecutor Mrs. T.H. Udeshi for the respondent/State

has seriously challenged the submissions made by

learned counsel Shri V.D. Muley for the appellants. She

has submitted that in view of the evidences of PW1

Pralhad Kadu, PW2 Vithal Kadu, and PW3 Arun Kadu, it

is clear that the prosecution has established harassment

caused to deceased Shila at the hand of the present

appellants and, therefore, learned Judge of the Court

below was justified in recording the finding of guilt

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against the appellants.

14. Exhibit 49 is report by Police Patil Govindrao

Baxiram Chauhan by which un-natural death was

pointed out to the police. On the basis of this report, the

police Authorities at Mangrulpir registered the

proceedings under Section 174 of the Code of Criminal

Procedure vide A.D. No.69 of 1998. That inquiry was

entrusted to PW6 Police Sub Inspector Deorao

Khanderao.

Exhibit 49 recites that when Police Patil

Govindrao Chauhan was in his house, accused No.1

Uttam came to his house and informed that his

daughter-in-law deceased Shila, who went to the

agricultural field in the morning, failed to return the

house till evening and, therefore, he went to the

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agricultural field and noticed deceased Shila lying in a

dead condition.

15. PW6 Police Sub Inspector Deorao Khanderao

immediately visited the spot of the incident where the

dead body of deceased Shila was lying. After having

minute inspection of the entire agricultural field, he

prepared the spot panchanama Exhibit 51. The said

panchanama is totally silent about noticing any

incriminating article.

16. As per the prosecution, after six days in

police custody remand, appellant No.1/original accused

No.1 Uttam Gawande made his disclosure statement

which led the prosecution to recover the rope, which

according to the prosecution was used in commission of

offence. PW4 Pramod Patil did not support the

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prosecution. Even, during the course of his cross-

examination, at the hands of learned Additional Public

Prosecutor, who was Incharge of the brief, he was

unable to bring any admission or anything on record by

which it could be said that it is helpful to the

prosecution. The memorandum statement of appellant

No.1/original accused No.1 Uttam Gawande is proved by

PW6 Police Sub Inspector Deorao Khanderao. Perusal

of said proved document shows that the statement is not

disclosing that the rope is concealed. Further, recovery

panchanama Exhibit 60 shows that the said rope is

recovered from the agricultural field which was already

visited by the investigating officer on 31.12.1998.

Therefore, the place was already known to the

investigating officer. Further, cross-examination of

PW6 Police Sub Inspector Deorao Khanderao read as

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under:

"In the memorandum Exhibit 59 the word concealed is not written. The Muddemal article No.1 rope was found lying in the rows of 'Tur-Crop' on open land."

In that view of the matter, the said piece of

evidence cannot be termed as an incriminating material

even against appellant No.1/original accused No.1

Uttam.

17. Thus, only evidences available against the

appellants are, evidences of PW1 Pralhad Kadu, PW2

Vithal Deobaji Kadu, and PW3 Arun Kadu. PW1 Pralhad

Kadu is brother of deceased Shila whereas PW2 Vithal

Kadu and PW3 Arun Kadu are uncles of deceased Shila.

Thus, they are close-relatives of deceased Shila. Merely

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because they are close-relatives of deceased Shila, that

by itself their evidences do not earn disqualification

from consideration. However, it is the duty of the Court

to scrutinize such close-relative witnesses with a

greater caution and also seek corroboration from the

other available piece of evidence to support their

version.

18. PW1 Pralhad Kadu is Author of Exhibit 42.

The first information report is not a substantive piece of

evidence. However, the said can always be used for the

purposes of corroboration or contradiction of the maker

of the said document.

Perusal of Exhibit 42 shows that allegations,

in respect of harassment, are made against the present

appellants and acquitted original accused No.3 sister-in-

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law Sau. Ujwala Shankar Tikar of deceased Shila and

original accused No.4 mother-in-law Sau. Chabutai

Uttam Gawande of deceased Shila. The first

information report is totally silent in its entire body in

respect of acquitted original accused No.5 husband

Samadhan Gawande of deceased Shila. However, in the

last lines of the said document it is reported by PW1

Pralhad Kadu that for the death of deceased Shila,

accused No.5 husband Samadhan of deceased Shila is

also responsible along with other accused persons.

The statements made in the first information

report are if closely scrutinized, show that the

allegations not only general in nature but also they are

vague.

19. From the witness box, PW1 Pralhad Kadu has

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made a general statement of allegation against all the

accused persons. His evidence shows that after the

marriage when his sister deceased Shila started

residing with original accused Nos.1 to 6 at village

Waghoda, all the accused persons used to ill-treat, beat,

and ask her bringing Rs.20,000/- from him. It is his

further evidence that after deceased Shila again started

residing with her matrimonial house, when she came to

her parental house for 'Diwali-Festival', that time also

she disclosed that all the accused persons are still ill-

treating and beating her by demanding Rs.20,000/-. She

was sent to her matrimonial house after 'Diwali-

Festival' with original accused No.5 her husband

Samadhan. Thereafter, when PW1 Pralhad Kadu had an

occasion to visit matrimonial house of deceased Shila,

that time also it was disclosed to him by deceased Shila

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that all the accused persons are ill-treating and beating

her by demanding Rs.20,000/-, is the version of PW1

Pralhad.

Thus, from the aforesaid evidence of PW1

Pralhad Kadu it is clear that the allegations against all

the accused persons are general and vague in nature.

Similar are the evidences of PW2 Vithal Kadu

and PW3 Arun Kadu.

20. Exhibit 74 postmortem report shows that

deceased Shila died un-natural death.

The question is whether the present

appellants are responsible for causing un-natural death.

To attract the provisions of Section 304-B of

the Indian Penal Code, the prosecution must establish

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(i) death of a woman otherwise than the normal

circumstances, if it is not burn injuries, (ii) it should be

within seven years of marriage, (iii) it should also be

shown that soon before the death she was subjected to

cruelty or harassment by the husband or relative of her

husband, (iv) such harassment or cruelty should be

pertained to demand of dowry.

21. From the evidences of the prosecution

witnesses it is clear that their evidences are vague in

respect of the demand of dowry or harassment. There is

nothing on record to show that soon before the death

the deceased was subjected to harassment or cruelty

and or she was pestered for dowry. If that is the

position that is culled out on the basis of the available

evidence on record, in my view, merely because the

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deceased met with un-natural death within a span of

seven years of her marriage, presumption under Section

113-B of the Evidence Act cannot be pressed into

service.

Further, on the basis of the same evidence,

learned Judge of the Court below has acquitted original

accused No.3 sister-in-law Sau. Ujwala, original accused

No.4 mother-in-law Sau. Chabutai, and original accused

No.5 husband Samadhan of deceased Shila. Not only

that, learned Judge of the Court below himself has

recorded the finding that the evidences of PW1 Pralhad,

PW2 Vithal, and PW3 Arun are exaggerated so far as the

acquitted original accused are concerned. In my view,

learned Judge of the Court below has committed a

mistake in not recording a finding that the evidences of

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these three witnesses are nothing but exaggeration in

respect of all the accused persons.

22. Since this Court is of the view that there is no

evidence at all in respect of ill-treatment, I feel that

conviction under Sections 304-B and 498-A of the Indian

Penal Code itself is not sustainable.

Therefore, in my view, the conviction against

the appellants cannot be sustained and it is required to

be set aside. Hence, I pass the following order :

ORDER

1. Criminal Appeal No.306 of 2001 is allowed.

2. Judgment and order of conviction dated

11.10.2001, passed by learned Additional

Sessions Judge, Washim, in Sessions Trial

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No.10 of 2000, is hereby quashed and set aside.

3. Appellant No.1/original accused No.1 Uttam

Kisan Gawande, appellant No.2/original accused

No.2 Sanjay Uttam Gawande, and appellant

No.3/original accused No.6 Raju Uttam Gawande

are acquitted of the offence punishable under

Section 498-A read with Section 34 of the Indian

Penal Code so also of the offence punishable

under Section 304-B read with Section 34 of the

Indian Penal Code.

4. Bail Bonds of the appellants stand cancelled.

JUDGE

!! BRW !!

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