Akhilesh Kumar Krishna Kumar Sao vs State Of Maharashtra
2017 Latest Caselaw 3624 Bom

 apeal no.157.99                                 1        

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

                   CRIMINAL   APPEAL NO. 157  OF  1999


 Akhilesh Kumar S/o Krishna Kumar Sao,
 aged about 26 years,Occupation-Service,
 R/o M.I.D.C.Nagpur.                                          ..... APPELLANT

       ...V E R S U S...

  
 State of Maharashtra,
 Through Police Station Officer,
 Police Station M.I.D.C.Nagpur                                ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri   R.S.Akbani,Advocate for appellant.
 Smt.  T.H.Udeshi,Addl.P.P. for State. 
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :- JUNE 27,2017

ORAL JUDGMENT

The present appeal is directed against the judgment

and order of conviction passed by Learned Sessions Judge,Nagpur

dated 29/05/1999, by which learned Sessions Judge,Nagpur

convicted the appellant for the offence punishable under Section

306 of the Indian Penal Code and directed to suffer R.I. for 3 years

and to pay fine of Rs. 1000/- and in default of payment of fine to

undergo further R.I. for three months. The appellant is also

convicted for the offence punishable under Section 498-A of the

Indian Penal Code and sentenced to suffer R.I. for 3 years and to

pay fine of Rs. 1000/- and in default of payment of fine to suffer

further R.I. for 3 months.

2. Heard Shri R.S.Akbani,learned counsel for appellant

and Smt.T.H.Udeshi, learned Addl.P.P. for State. Learned counsel

Shri Akbani for appellant strenuously urged before me that the

judgment and order passed by the learned Trial Court is erroneous

in law . He invited my attention to the evidence of prosecution

witnesses in detail. So also, smt.T.H.Udeshi, learned Addl.P.P.

invited my attention on various documents which were fuly

proved during the course of trial. They both vehemently

submitted in respect of their respective prayers in the present

appeal.

3. Deceased is Archana. Her marriage took place with the

appellant in the year 1992. At the time of marriage, appellant was

taking education in engineering stream at Pusad where the

deceased used to reside with her parents. According to

prosecution, the appellant was in habit of chasing deceased and so

also indulged in teasing. However for such alleged acts on the part

of the appellant no offence at any point of time .

4. The evidence as brought on record by the prosecution

in order to bring home guilt of the appellant shows that ultimately

the deceased herself ran away with appellant at his native place at

Akaltara, District-Bilaspur. After getting the information Vijay

Ginnalwar(PW1) her father reached to said village where he got

knowledge that his daughter deceased Archana has already

performed marriage with the present appellant. Therefore, to give

sanctity to their relations both were brought at Pusad by Vijay

(PW1) and thereafter marriage was duly performed.

5. The incident in question has occurred on 3/8/1996. In

the said incident Archana received severe burn injuries and also

her toddler by name Gaurav also suffered burn injuries. They were

taken into hospital,however firstly Archana succumbed to her burn

injuries on 5/8/2016 and on 15/8/1996 Gaurav also succumbed

to his burn injuries.

6. Vijay(PW1) on 6/8/1996 approached to P.S.M.I.D.C.

Nagpur with a typed written complaint(Exh.21) wherein he

specifically alleged that he has a strong suspicion against

appellant that he must have poured kerosene on deceased Archana

and set her ablaze. Prior to lodging of the written complaint, since

the death of Archana was unnatural one an accidental death was

registered with P.S.M.I.D.C.Nagpur and it was registered under

Section 174 of Code of Criminal Procedure and it was registered as

AD No.25/1996.

7. Raosaheb Arjun Lokhande(PW7) Police Sub-Inspector

was entrusted with the enquiry of the said accidental detath.

During inquiry of the said he visited the spot of the incident where

he found a letter (chit) of deceased Archana reciting that she

could not bear anything more. The spot panchnama was prepared

by investigating officer Raosaheb Arjun Lokhande (PW7) on

6/8/1996 and it is at Exh.34. The chit which was seized during

the course of drawing panchnama is available at Exh.22. The

inquest was also done over the dead body of Archana by Raosaheb

Arjun Lokhande(PW7) and inquest panchnama is at Exh.20. In the

meanwhile, since he received the typed written complaint(Exh.21)

he registered an offence against appellant vide Crime

No.165/1996 for the offence punishable under Section 306 of the

Indian Penal Code. The printed F.I.R. is at Exh.35. Thereafter he

handed over the further investigation to P.I.Gedam.

8. After completion of usual investigation, chargesheet

was presented in the Court of law.

9. A charge was framed against the appellant by learned

Sessions Judge,Nagpur below Exh.6 for the offence punishable

under Sections 306 of the Indian Penal Code and also under

Section 498-A of the Indian Penal Code.

10. In order to bring home the guilt of the appellant in all

10 witnesses were examined.

11. P.W.1Vijay S/o Ganpatrao Ginnalwar is the father of the

deceased while P.W.2 Arti W/o Vijayrao Innalwar is the mother of

deceased. P.W.3 Sirish Vijayrao Ginnalwar is brother of the deceased

whereas P.W.4 is one Satish S/o Krishnarao Sadan to whom

deceased use to call maternal uncle(mama). P.W.5 is Dr.Vinod

Raghunathdas Agrawal who has performed post mortem on the dead

body of deceased Gaurav and has proved the post mortem notes

(Exh.31). P.W.6 is Wasudeo Ghusiji Sidam who has conducted

investigation of Crime No.165/1996 and filed chargesheet. P.W.7

Raosaheb Arjun Lokhande has inquired accidental death proceeding

and seized chit (Exh.22) by drawing panchnama(Exh.24).Dr.Pradeep

Gangadhar Dixit (PW8) has performed post mortem on the dead

body of deceased Archana and proved post mortem notes (Exh.38),

P.W.9 is Dr.Sudanwar Sudhakarrao Bhoot and he has given a letter

that during the course of treatment Gaurav died on 6/8/1996.

P.W.10 is Manikrao Tarachand Rokde, a panch on sot

panchnama(Exh.34).

12. Though written complaint (Exh.21) filed on behalf of

Vijay(PW1), the father of deceased states that he has a strong

suspicion that appellant committed murder of his daughter Archana.

Neither the chargesheet nor charge was framed against the present

appellant for the offence punishable under Section 302 of the Indian

Penal Code. The chargesheet was presented against appellant for the

offence punishable under Section 306 of the Indian Penal Code. He

lso faced the charge for the offence punishable under Section 498-A

of Indian Penal Code in addition to this charge.

13. Looking to the inquest panchanma and post

mortem(Exh.38) conducted by Dr.Dixit there cannot be any doubt

that deceased met with unnatural death.

14. The unnatural death be I) homicidal one II) suicidal

one and III) accidental one. Since the appellant did not face the

charge of homicidal death the said possibility is completely ruled

out.

According to prosecution, deceased Archana committed

suicide due to harassment caused to her whereas as per the

defence Archana suffered burn injuries accidentally to which

ultimately she succumbed alongwith her son Gaurav.

15. The prosecution has not examined any person in whose

presence the deceased committed suicide nor it is expected also if

the suicide is committed in four walls of the house. The record

shows that when Archana was admitted in the hospital her

statement was recorded by police. From the evidence of Raosaheb

Lokhande(PW7) it is clear that her statement was recorded by

A.S.I.Waghare. Said statement was not filed on record alongwith

the chargesheet.

However, during the cross-examination of Satish(PW4)

the prosecution was required to place the said documents on

record. This prosecution witness Satish Sadan is having close

acquaintance with the family of deceased. Even according to Vijay

(PW1) he received information from Satish Sadan(PW4) to whom

he referred in examination in chief as deemed maternal uncle

about the burning incident. That shows this prosecution witness

was closely acquainted with the family of Vijay(PW1). This witness

was declared hostile by learned Addl.P.P. with the permission of

the Court and he was cross-examined by learned Addl.P.P. During

his cross-examination, he admitted that Archana was brought to

him by appellant himself and then he took Archana to Dr.Badjate

Hospital who advised him to admit her in Medical College. In his

cross-examination , it is further brought on record at the hands of

the defence that when Archana was admitted in the hospital in his

presence police recorded her statement and on the said statement

Satish Sadan(PW4) put his signature as one of the panchas. This

particular version of Satish Sadan(PW4) that in his presence

statement of Archana was recorded is duly corroborated by

Raosaheb Arjun Lokhande(PW7) who candidly admitted that

A.S.I.Waghare has recorded statement of deceased Archana.

16. The job of the prosecution and investigating officer is to

place the material collected during the course of investigation

before the Court. It is not expected either from investigating

officer or from the prosecution to take side of either complainant

or the accused. The fair investigation is the primary thing for

administration of criminal justice. If the prosecution or the

investigating officer is not placing the material collected or

obtained during the course of investigation, then there is always

possibility of polluting the stream of criminal administration. It is

the duty of the Court to appreciate the material collected and

placed on record during the course of investigation. The

investigating officer cannot decide as to which document he

should file on record for securing the conviction of accused against

whom the offence is registered. Let the Court should do its duty

by appreciating material brought on record.

Ultimately, during the course of cross-examination of

Satish Sadan(PW4) when he stated that in his presence statement

of deceased is recorded the prosecution was required to place the

said document on record. Thus, the statement recorded by

A.S.I.Waghare of deceased Archana reached on the record through

the prosecution side only. It is not placed on record by the defence

or by accused. Thus, it has its own sanctity. The said document

was duly exhibited by learned Judge in view of the evidence of

Satish Sadan(PW4) and it is available at Exh.27.

17. Perusal of Exh.27 clearly shows that the incident in

question has happened due to accident only.

18. Further, after receipt of information about the burning

incident Vijay(PW1) immediately reached to Nagpur and rushed

to Medical College where Archana was admitted as an indoor

patient. His evidence discloses that after reaching along side her

he asked about the incident. His evidence is completely silent that

on inquiry which he made with Archana she disclosed that she

committed suicide. His evidence only shows that she asked the

accused who was present there he should remove himself from

there. Thus, from the evidence of Vijay(PW1) it is crystal clear that

to him no oral dying declaration was made by deceased Archana.

19. The other facet of the prosecution case is that Archana

committed suicide due to illtreatment which used to receive at the

hands of the present appellant. In fact, appellant was also charged

for an offence punishable under Section 498-A of the Indian Penal

Code. In order to prove the said charge of harassment the

prosecution has examined the parents of the deceased and also

her brother.

20. Evidence of Arti shows that she belongs to caste known

as Panchal(goldsmith) whereas appellant belongs to Teli . Thus, it

is clear that the marriage between appellant and deceased was

intercaste marriage. Further even as per the evidence of

Vijay(PW1) his daughter, deceased ran away with the appellant

from Pusad to a place in district Bilaspur where the appellant was

having native place and there they performed marriage. That

shows the marriage between this couple was performed against

the wish of parents of Archana. Though as per the evidence of

Vijay(PW1) he brought back the couple in order to give sanctity to

their relations function was organised at Pusad. That by itself is

not sufficient to reach to the final conclusion that the parents has

given consent to appellant for performing intercase marriage.

21. According to evidence of Vijay(PW1),Arti(PW2) and

Sirish (PW3), the brother of deceased the appellant used to harass

deceased. For the harassment at no point of time the appellant

suffered any prosecution at the hands of the parents of deceased.

On the contrary, it is clear that after getting job at M.I.D.C.Nagpur

the appellant started residing with deceased at Nagpur and during

the course of their marital life Archana also delivered a male child.

The evidence in respect of harassment appears to be improved

version in the evidence of parents and brother. Further the

prosecution has not examined any neighbour pointing out that

they noticed at least any brickring in the marital life of the

couple.

22. Learned Addl.P.P. has heavily relied on Exh.22 which is

a chit which was seized from the house of appellant alone while

drawing spot panchnama. Exh.22 recites that it is written to Vijay

(PW1) by writing "baba" . The gist of Exh.22 is that she is unable

to bear anything and he should come and fetch her otherwise she

will take drastic step. It is the submission of learned Addl.P.P. that

due to this Exh.22 it is sufficient to prove the harassment at the

hands of the appellant was to such an extent that she was required

to write down the letter and ultimately she has short her life.

23. Chit (Exh.22) was seized by police police officer

Raosaheb (PW7) when he was inquiring in the AD proceeding by

drawing the spot planchnama(Exh.34). Manikrao(PW10) is one of

the panchas to the said spot panchnama(Exh.34). This witness is

chowkidar. His evidence shows that two police personnel and

father in law of the appellant came to the spot, entered into the

house of the appellant, not only that in his examination in chief

itself he has stated that when the spot panchnama was drawn the

appellant was not present. Thus, in absence of the appellant the

spot was search. It is to be noted that that day appellant was not

arrested. Appellant was arrested subsequently on 8/8/1996. Even

as per the prosecution case, deceased was well educated girl

therefore her handwriting must have been available either in the

marital house or in parental house. Chit (Exh.22) which questions

the behaviour of the appellant could have been compared with

other handwriting of deceased Archana. For the reasons best

known to the prosecution chit (Exh.22) was not sent to the

handwriting expert to reach to the conclusion that chit (Exh.22)

was in fact written by deceased Archana. The said document is

undated one and also it does not reflect her full name. In view of

the fact that the handwriting of chit (Exh.22) is not proved to be

handwriting of the deceased. I refrained myself from placing any

reliance on the said document to reach to the conclusion that she

was subjected to cruelty at the hands of the appellant.

24. Exh.27 shows that Archana suffered burn injuries due

to accident. Not only that Vijay (PW1), Arti(PW2) and Sirish

(PW3) are totally silent in their respective testimonies from the

witness box that to them any oral dying declaration was made by

Archana that she committed suicide. Thus, in my view, this is the

case wherein the prosecution has utterly failed to prove its case

beyond reasonable doubt warranting me to pass the following

order.

                               ORDER

 I)             Appeal is allowed.

 II)            Judgment and order of conviction passed by learned 

                Sessions Judge,Nagpur  dated 29/05/1999 in 

S.T.No.166/1997 is hereby quashed and set aside.

III) Appellant is acquitted from the charge of offence

punishable under Sections 306 and 498-A of the Indian

Penal Code .

 IV)            His bail bonds stand cancelled. 



                                                      JUDGE

 kitey