Bombay High Court
State Of Maharashtra vs Kailas Walmik Gore And Ors on 23 June, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.81 OF 2000
The State of Maharashtra APPELLANT
[Ori.complainant]
VERSUS
1. Kailas s/o. Walmik Gore,
age: 26 yrs. Occ: Mason,
r/o. Shivnagar, Kannad,
Tq. Kannad, District Aurangabad
2. Jaishree w/o. Kailas Gore,
age: 18 yrs. Occ: & r/o. as above.
3. Chandrabhagabai w/o. Kisan Jadhav,
age: 50 yrs. r/o. as above.
4. Walmik s/o. Girajaba Gore,
age: 65 yrs. r/o. Andhaner,
Tq. Kannad, Dist. A'bad.
5. Jijabai w/o. Walmik Gore,
age: 53 yrs. R/o. as above.
6. Padmabai w/o. Damu Gayake,
Age: 20 yrs. r/o. Padali
Tq.Khultabad, District Aurangabad.
RESPONDENTS
[original accused]
...
Mr.S.D.Ghayal, APP for the Appellant - State.
Mr.N.S.Ghanekar, Advocate for the respondents
- accused.
...
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2
CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
Reserved on : 20.06.2017
Pronounced on : 23.06.2017
JUDGMENT: (Per S.S.Shinde, J.):
1. This Appeal is filed by the
appellant-State, challenging the judgment and
order of acquittal passed by the Additional
Sessions Judge, Aurangabad on 30th October,
1999 in Sessions Case No.241/1997.
2. The prosecution case in nutshell is
as under:
It is the case of prosecution that
deceased Mhalsabai, daughter of informant
namely Baburao Punjaba Gavli, was married
with accused no.1 prior to 4 years of the
incident. After the marriage, she was happily
maintained for the period of about 3 years.
Further, during the said period, she could
not give a birth to a child. Therefore, since
last 6 months prior to the incident, accused
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no.1 started ill-treating her on the ground
that, she was intending to perform a second
marriage. Prior to two months, the accused
had also given shock of iron to the deceased,
and informant came to know about it when she
had been to his house. Therefore, he
persuaded accused no.1 and requested not to
repeat such acts.
3. Prior to 20 to 25 days of the
incident, deceased Mhalsabai came at village
Deolana, and lateron she went to Mahalgaon to
visit relative, who was counting last days of
his life. At that time the tablets, which
were with the deceased Mhalsabai, were shown
to the informant. He took Mhalsabai to
Dr.Boralkar for check up, and during check-up
he came to know that the said tablets are
useful for abortion purpose, and because of
consuming said tablets, she aborted. Lateron
the elder brother of accused no.1 Kailash
i.e. son-in-law of the informant, maternal
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uncle of accused no.1 Kailas namely Kachru
Tupe, Kashinath Dadke requested the informant
to give permission to perform the second
marriage, and if not permitted, then accused
no.1 will perform the second marriage.
Because of receiving such threats, permission
was given to accused no.1 by the informant to
perform a second marriage. Further, two rooms
out of the residential house of the accused
were also given to the deceased Mhalsabai
under the registered partition deed.
4. It is further the case of the
prosecution that, on 24th June, 1997, accused
no.1 performed second marriage with the
daughter of Chandrabhaga Jadhav. On 27th June,
1997 at about 10.00 a.m. one unknown person
from Andhaner came to him, and informed that,
Mhalsabai was burnt. Therefore, the informant
himself came to Kannad along with his
relatives and went to the house of accused
no.1, and there he came to know that
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Mhalsabai died because of burn. The informant
suspected that the accused in furtherance of
their common intention have killed his
daughter Mhalsabai. He lodged complaint at
Kannad Police Station, on 27th June, 1997, at
about 5.00 p.m. and on the basis of it, an
offence was registered as Crime No.76/1997
for the offence punishable under Sections
302, 498-A, 306 r/w.34 of the IPC.
5. It is further the case of the
prosecution that, after the incident, the
dead body of deceased Mhalsabai was sent for
postmortem examination. The panchnama of the
spot of incident was also prepared in
presence of panchas, and after proper
investigation, the charge-sheet was submitted
against the accused persons in the Court of
Judicial Magistrate First Class, Kannad.
Considering the charges leveled against the
accused persons, the learned Judicial
Magistrate First Class has committed the
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case to the Court of Session for trial
according to law.
6. The trial Court framed charge for
the offences punishable under Sections 498-A,
306 and 302 r/w. 34 of the Indian Penal Code.
The accused pleaded not guilty and claimed to
be tried. Their defence is of total denial.
7. In order to substantiate the charge,
the prosecution has examined as many as 9
witnesses i.e. complainant Baburao Punjaba
Gavali at Exh.19 as PW-1, PW-2 Ashok Laxman
Jadhav at Exh.21, PW-3 Vithal Ramrao Shirse
at Exh.24, PW-4 Ramesh Baburao Gavali at Exh.
25, PW-5 Sahebrao Gahinaji Sonwane at Exh.26,
PW-6 Dr.Anil Shankarrao Boralkar at Exh.28,
PW-7 Somnath Khanderao Gavli at Exh.33, PW-8
Dr.Rajesh Sudam Gangurde at Exh.36 and lastly
the Investigating Officer Hanmant Wakle at
Exh.39. Besides this, the prosecution has
also relied on inquest panchnama, panchanama
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of seizure of the clothes, postmortem
examination notes etc.
8. After full-fledged trial, the trial
Court acquitted all the accused of the
offences punishable under Sections 498-A, 306
and 302 r/w. 34 of the I.P. Code. Hence this
Appeal filed by the appellant - State.
9. Learned APP appearing for appellant-
State submits that the marriage of deceased
Mhalsabai was solemnized with accused no.1
Kailas Walmik Gore on 9th May, 1993, and the
alleged incident had taken place on 27th June,
1997. Therefore, the death of Mhalsabai
occurred within 7 years from the date of
marriage, and therefore, presumption under
Section 113-A of the Evidence Act would apply
to the facts of the present case. It is
submitted that the medical evidence shows
that, there were 100% burns, and Mhalsabai
died at the spot of incident. Since the
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incident had taken place in the house of the
accused, the accused persons were obliged to
offer explanation under which circumstances
Mhalsabai died. It is submitted that, A.D.
was promptly registered. The spot panchnama
was carried out on the same day, and
incriminating material has been seized from
the house of the accused. It is submitted
that, the evidence of the prosecution
witnesses about ill-treatment given by the
accused on the ground that, Mhalsabai did not
conceive a child, has been stated by the
witnesses. Accused no.1 Kailas performed
second marriage on 24th June, 1997, with
daughter of Chandrabaga [accused no.3] namely
Jaishree [accused no.2] at Kalimath, and the
incident had happened on 27th June, 1997.
Therefore, within the proximity of such
incident, due to the second marriage
performed by accused no.1 Kailas with accused
no.2 Jaishree, an incident has taken place.
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It is submitted that, all the accused shared
common intention to ill-treat and harass the
deceased Mhalsabai on the ground that, she
did not conceive a child. Therefore, learned
APP submits that, an appeal deserves to be
allowed.
10. On the other hand, learned counsel
appearing for respondents-accused invites our
attention to the findings recorded by the
trial Court, and submits that the view taken
by the trial Court is a plausible, and
findings recorded are in consonance with the
evidence brought on record. There is no
perversity in the findings recorded by the
trial Court. It is submitted that, Mhalsabai
persuaded accused no.1 Kailas to perform
second marriage. Prior to the incident, an
immovable property i.e. three rooms were
given to Mhalsabai by a registered document.
The evidence of the prosecution witnesses
about the alleged period of ill-treatment and
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harassment is totally inconsistent. The
medical evidence would clearly show that the
medical treatment was given for fertility as
the Mhalsabai did not conceive a child. It is
submitted that, the evidence of Investigating
Officer clearly shows that the door of the
room where the incident had taken place was
locked from inside. The door was broke open.
The prosecution has not brought on record any
evidence, which would show that, the accused
persons were present at the time of alleged
incident in the said house or even nearby the
said house wherein the incident had taken
place. It is submitted that, the parents of
accused no.1 Kailas are residing at Andhaner,
and not at the place of incident. They have
been falsely implicated in the alleged
offences. It is submitted that, Baburao
Punjaba Gavli [PW-1] in his evidence stated
that, consent was given for second marriage
of accused no.1 with accused no.2 Jaishree.
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It has come on record that, accused no.1
performed second marriage with consent of
Mhalsabai. Therefore, there was no reason
for the alleged commission of murder of
Mhalsabai by the accused. It is submitted
that, the prosecution has not brought on
record the evidence, which would demonstrate
that, within the proximity of the date of
alleged incident there was positive acts on
the part of the accused by which there was
instigation or abetment or intentional aiding
in commission of suicide by Mhalsabai. It is
submitted that the accused never intended
that, Mhalsabai should commit suicide.
Therefore, he submits that the appeal may be
dismissed thereby confirming the findings of
acquittal recorded by the trial Court.
11. We have given careful consideration
to the submissions of the learned APP
appearing for appellant-State, and the
learned counsel appearing for the respondents
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- accused. With their able assistance, we
have carefully perused the entire evidence
brought on record. The prosecution has
examined Baburao Punjaba Gavli as PW-1. In
his evidence he stated that, marriage of
Mhalsabai with accused no.1 took place on 9th
May, 1993, at Deolana. After 1½ years of the
marriage, accused started ill-treating her on
account of demand. He informed the said fact
to his relatives, and also told the accused
not to ill-treat Mhalsabai. However, accused
nos.4 to 6 started ill-treating her
immediately after 6 months of marriage. That
time also he told accused Kailas that, he
will extend necessary financial help to
accused, but they should not give an ill-
treatment or harassment to Mhalsabai.
However, the accused were insisting to allow
them to perform second marriage of accused
no.1. Because of pressure extended and
insistence by the accused, they allowed
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accused no.1 for contracting second marriage
just prior to 15 days of the incident. He had
been to the house of his daughter two months
prior to the incident, and found some
injuries on her hands, because of electric
shock given by the accused. He went to the
father of accused no.1 and maternal uncle of
accused no.1, Kashinath Dapke with his other
two relatives. All of them requested accused
not to give any ill-treatment. Even it was
told to the accused that, in case ill-
treatment is not stopped by them, the
complaint would be filed against them with
the Police.
He further stated that, Mhalsabai
came to Wadgaon prior to 1½ months of the
incident. Since she was not feeling well, he
took her to the Hospital of Dr.Boralkar. Then
Doctor told them that, the tablets which were
shown to him are useful for abortion, and
advised not to further consume the said
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tablets. Thereafter, he decided not to send
Mhalsabai to the matrimonial house. However,
on one day brother of the accused no.1 namely
Vilas and maternal uncle namely Kachru Dube
came to his house. Then he called some
persons from the village, and in their
presence it was decided to send her at
matrimonial place. Then three rooms were
given to Mhalsabai by executing registered
document by the accused, and on the very day
a written permission was given to accused
no.1 for performing second marriage.
Thereafter, deceased Mhalsabai was staying
with accused no.1 at Kannad. Then he came to
know that, on 24th June, 1997 accused no.1
performed second marriage with the daughter
of Chandrabhagabai [accused no.3] at
Kalimath. He further deposed that, On 27th
June, 1997, accused killed Mhalsabai by
putting her on fire. He came to know from
unknown person about the said incident. When
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he went to the place of an incident at about
12.30 p.m., already the dead body was
referred to P.M. examination. Then the Police
prepared panchnama of the spot. Looking to
the situation at the spot, he suspected that
Mhalsabai was mercilessly beaten by the
accused, and thereafter she was set on fire.
Then he went to the Police Station and lodged
the FIR.
12. During his cross examination, he
stated that, it is not mentioned in his FIR
that, after 1½ years, the accused started
ill-treating to his daughter. Though it was
stated to the Police that, ill-treatment
started after 1½ years of the marriage, he
cannot assign any reason as to why it is not
mentioned in his complaint by the police.
When he was confronted with his statement
made in the FIR that, Mhalsabai was properly
treated and maintained by the accused for the
period of three years from the date of
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marriage; he replied that, the said version
appearing in the FIR is not true. Therefore,
his oral testimony before the Court in
respect of the period of ill-treatment and
harassment at the hands of the accused, and
stated in the FIR, is inconsistent, and there
is considerable difference in two versions;
one given in the FIR and another before the
Court. He admitted in his evidence that,
accused no.6 got married, and stayed with her
husband at different place. He stated that,
he did not state before the Police that,
accused nos.4 to 6 were ill-treating and
harassing his daughter after 6 months of the
marriage. He cannot state the date and month
when he requested the accused not to ill-
treat Mhalsabai. He further stated in his
cross examination that, he took Mhalsabai to
Dr.Boralkar after two years of the marriage.
She did not tell in his presence to
Dr.Boralkar that, through over sight she was
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swallowed 12 to 13 tables of Mala D.
Thereafter, he did not take Mhalsabai to any
Doctor. She was aborted at home. The said
fact was stated by him in his complaint,
however, he cannot assign any reason why the
said fact is not mentioned in his complaint.
He admitted in his cross examination that,
they i.e. he himself and other family members
have signed the consent deed giving consent
for contracting second marriage by accused
no.1. He did inform the accused that the
marriage will be attended by them and clothes
would be offered by him to accused. After
execution of the consent deed, Mhalsabai went
to accused no.1 at matrimonial home. He
further stated that, he did not state in his
complaint that, he saw Mhalsabai in burning
condition. He cannot assign any reason as to
why the said fact is not mentioned in his
complaint.
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It appears that, suggestion was
given to him that, accused took Mhalsabai to
4-5 Doctors for treatment as she was not
conceiving a child. He also admitted that,
Mhalsabai was suffering from allergy, and
therefore, she was taken for treatment to the
various Doctor by the accused. He was telling
Mhalsabai that, one day she will begotten a
child. He stated that, he had gone through
the contents of consent deed allowing accused
no.1 to perform second marriage, which was
dictated by him. He further stated that, he
does not know whether Mhalsabai was insisting
accused no.1 to perform second marriage,
since she was not able to conceive a child.
He further admitted that, after marriage
Mhalsabai used to come to his house with
accused.
13. If the evidence of Baburao Gavli
[PW-1] is considered in its entirety, it
suffers from serious omissions and
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improvements. The period of alleged ill-
treatment and harassment stated by him is
substantially different than stated in the
FIR. He admitted that, they have given
consent for performing second marriage by
accused no.1 Kailas with accused no.2
Jaishree. The accused have also executed
registered document in favour of Mhalsabai
giving her premises consisting of three
rooms. Therefore, there was no reason for the
accused persons to kill Mhalsabai by setting
her on fire.
14. The prosecution did examine Vithal
Ramrao Shirse as PW-3. He stated that, he is
a reporter of Daily Lokmat. On the date of
incident, he had gone to Kannad in Shivnagar
area to see his friend Sanjay. But Sanjay did
not meet him as he had gone to Aurangabad.
After talking with the wife of Sanjay, he
was to go back, however at that time, he
heard hue and cry from the house of the
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accused no.1, Kailas. He further stated that,
somebody was saying that, there was short-
circuit of electricity supply, and due to
that, there is fire. He entered into the
house of accused no.1, and threw carpet on
the person of Mhalsabai and extinguished the
fire. Thereafter, the parents of the accused
came at the spot of incident. Upon careful
perusal of his deposition, he has nowhere
stated the presence of the accused at the
relevant time, either at the place of
incident or nearby the house where Mhalsabai
was used to reside.
15. The prosecution further examined
Ramesh Baburao Gawali [PW-4] and Sahebrao
Gahinaji Sonwane [PW-5] to prove ill-
treatment and harassment at the hands of the
accused to Mhalsabai. However, if the
evidence of Baburao Gavli [PW-1], Ramesh
Gawali [PW-4] and Sahebrao Sonwane [PW-5] is
considered conjointly, it suffers from
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contradictions, omissions and also from
exaggeration. It differs on the point of
alleged period of ill-treatment and
harassment.
16. The prosecution examined Dr.Anil
Bhaskarrao Boralkar [PW-6], who examined
deceased Mhalsabai. The prosecution also
examined Somnath Khanderao Gavli, cousin of
deceased, on the point of ill-treatment and
harassment. The prosecution further examined
Dr.Rajesh Gangurde [PW-8], who conducted
postmortem, and also the Investigating
Officer, namely Hanmant Wakade, who
investigated the crime.
17. Hanmant Wakade [PW-9] stated in his
deposition that, on 27th June, 1997, one
Police Head Constable Rathod registered an
offence as A.D., and the said was handed over
to PW-9 for further investigation. PW-9
visited the spot of incident and drew the
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panchnama in presence of two panchas. Seven
Articles, which were lying at the spot of
incident, were seized under the panchnama in
presence of panchas. Then he drew inquest
panchnama over the dead body in presence of
panchas. Then the dead body was referred for
postmortem examination. During the course of
enquiry of A.D., he recorded statements of 7
witnesses. Thereafter, the father of the
deceased gave FIR. On the basis of the said
FIR, an offence was registered as Crime No.
76/1997 for the offence punishable under
Section 498-A, 302, r/w. 34 of the IPC. Then
the statements of the witnesses were recorded
on the very day. The manner in which further
investigation was carried out has been stated
by him. After investigation, he filed charge-
sheet.
During his cross examination, he
stated that, he reached at the spot of
incident at about 11.00 to 11.30 a.m., nobody
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was present in the room where the incident
took place. When he reached at the place of
incident, the door of the room was closed.
First he drew the panchnama of the spot of
incident. Some mark of violence were found on
the door from outside. Further, the inner
latch was also broke as the screw was lying
there. A carpet was found below the dead
body, and one sari was covered on the said
body. He further stated that, he recorded the
statement of one Mistri, and he stated that,
he gave a blow of spade on the door to open
the same and accordingly door was opened.
PW-9 further recorded the statement of Kachru
Dapke. He also recorded the statements of
persons residing in the said vicinity.
It can be gathered from his evidence
that, at the relevant time the accused
persons were not present at the spot of
incident or nearby the spot of incident.
Secondly, the latch of the door was lying
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inside the room. He recorded the statement of
one Mistri, who stated that, he gave a blow
of spade on the door, and then the door was
broke open, and Mhalsabai was found alone in
the burnt condition in the said room.
Therefore, in absence of any cogent evidence
on record showing the presence of the accused
at the spot or nearby the spot, the charge
against the accused that they set Mhalsabai
on fire, and killed her cannot sustain.
18. If the evidence of PW-1, PW-4, PW-5
and PW-7 is considered in its totality, it
does not inspire confidence about what type
of ill-treatment and harassment was given by
the accused persons to Mhalsabai, and
further, time stated by these witnesses of
alleged harassment and ill-treatment is also
different. Admittedly, no any complaint or
FIR was lodged by PW-1 or any relative of
Mhalsabai with the Police Station about the
alleged ill-treatment and harassment prior to
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the date of alleged incident. It appears from
the evidence of PW-1 that, the consent was
given by them for performing second marriage
by accused no.1 Kailas with accused no.2
Jaishree, and therefore, there was no reason
for the accused to kill Mhalsabai, or for
aiding or abetting or instigating Mhalsabai
with an intention that, she should commit
suicide. There are no positive acts brought
on record by the prosecution within the
proximity of the alleged commission of
suicide by Mhalsabai, which would connect
them with the alleged commission of offence
so as to prove offence punishable under
Section 306 of the IPC. In order to prove the
charge for the offence punishable under
Section 306 of the IPC, the prosecution was
obliged to bring on record evidence showing
that, within the proximity of alleged
incident, there was instigation or
intentional aiding or abetment or conspiracy,
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which led to commission of suicide by
Mhalsabai, and Mhalsabai had no any option
but to commit suicide.
19. The Supreme Court in the case of
S.S.Cheena Vs. Vijay Kumar Mahajan and
another1, in para 25 observed that, the
abetment involves mental process of
instigating a person or intentionally aiding
a person in doing of a thing. Without a
positive act on the part of the accused to
instigate or aid in committing suicide,
conviction cannot be sustained. The intention
of the legislature and the ratio of the cases
decided by this Court is clear that in order
to convict a person under Section 306 of the
I.P. Code there has to be a clear mens rea to
commit the offence. It also requires an
active act or direct act which led the
deceased to commit suicide seeing no option
and that act must have been intended to push
1 [2010] 2 SCC 190
81.2000 Cri.Appeal.odt
the deceased into such a position that he
committed suicide.
20. The defence taken by the accused of
false implication appears to be probable.
Accused no.1 in his defence stated that,
Mhalsabai herself encouraged him to get
married for second time, and also persuaded
accused no.2 for getting married with accused
no.1 Kailas. Mhalsabai has also attended
second marriage of accused no.1. Just one day
before the incident, Mhalsabai went to
village Shivner.
21. The trial Court upon appreciation of
the entire evidence brought on record found
that, the prosecution has not proved the
charge against the accused. The trial Court
has made in depth scrutiny of the evidence,
and to that effect there is discussion from
para 11 to 16 of the impugned judgment. Upon
independent scrutiny of the evidence, we are
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of the opinion that, the findings recorded by
the trial Court are in consonance with the
evidence brought on record. There is no
perversity as such. The view taken by the
trial Court is plausible, and therefore, no
interference is warranted in the impugned
order of acquittal. Hence the appeal stands
dismissed. Bail bonds, if any, shall stand
cancelled.
[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
