Bombay High Court
Prakash Shivshankar Narkhede vs Gajanan Vishwnath Chincholkar & 6 ... on 28 June, 2017
Bench: V.M. Deshpande
apeal.358.2001 & rev.142.2001 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 358 OF 2001
The State of Maharashtra,
Through Police Station Officer
Police Station Umarkhed,Yavatmal ..... APPELLANT
...V E R S U S...
1. Gajanan Vishwanath Chincholkar,
aged about 23 years,
2. Vishwanath Tukaram Chincholkar,
aged about 52 years,
3. Sau. Kamlabai Vishwanath Chincholkar,
Aged about 47 years,
4. Shivraj Vishwanath Chincholkar,
Aged about 22 years,
5. Sau. Godawari W/o Sambhaji Warkad,
Aged about 55 years,
All R/o Sangam Choncholi,Umarkhed,
District-Yavatmal. ...RESPONDENTS
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Shri R.S.Nayak, Addl.P.P. for State.
Shri K.S.Narwade,Advocate for respondent nos. 1 and 3.
Respondent nos. 2 and 4 abated.
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WITH
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apeal.358.2001 & rev.142.2001 2
CRIMINAL REVISION APPLICATION NO. 142 OF 2001
Prakash S/o Shivshankar Narkhede,
R/o Khadki,Tq.Himatyatnagar,
District-Nanded. APPLICANT
...V E R S U S...
1. Gajanan Vishwanath Chincholkar,
aged about 26 years,
2. Vishwanath Tukaram Chincholkar,
aged about 56 years,
3. Sau. Kamlabai Vishwanath Chincholkar,
Aged about 49 years,
4. Ku.Jayrani D/o Vishwanath Chincholkar
(dead)
5. Shivraj Vishwanath Chincholkar,
Aged about 24 years,
6. Sau. Godawari W/o Sambhaji Warkad,
Aged about 58 years,
All R/o Sangam Choncholi,Tq.Umarkhed,
District-Yavatmal.
7. The State of Maharashtra,
Through Police Station Officer
Police Station Umarkhed,Yavatmal. ..NON-APPLICANTS
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Shri R.L.Khapre Advocate for applicant.
Shri K.S.Narwade,Advocate for non-applicant nos. 1 and 3.
Non-applicant nos. 2 and 5 abated.
Shri R.S.Nayak, Addl.P.P. for State.
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apeal.358.2001 & rev.142.2001 3
CORAM:- V. M. DESHPANDE, J.
DATED :- JUNE 28,2017
ORAL JUDGMENT
This appeal as well as revision are disposed of by this
common judgment since both arise out of judgment and order of
acquittal passed by 2nd Ad-hoc Assistant Sessions Judge, Pusad
dated 5/7/2001 in S.T.No.79/1998.
2. Initially, after the case was registered as
S.T.No.79/1998 the learned trial Court framed a charge against 6
accused persons for the offence punishable under Sections 498-A
and 306 r/w Section 34 of the Indian Penal Code. The accused
persons were charged for causing harassment to deceased Surekha
and abetting her to commit suicide.
3. I heard Shri R.S.Nayak,learned Addl.P.P. for State and
Shri K.S.Narwade, learned advocate for respondents in criminal
appeal and Shri R.L.Khapre for the appellant in revision. Shri
R.L.Khapre, learned advocate appeared in this two matters and
vehemently argued in support of the revision.
4. Criminal revision is preferred by first informant Prakash
Shivshankar Narkhede who was also examined as P.W.1 during
the course of trial.
5. Learned 2nd Ad-hoc Assistant Sessions Judge-Pusad
framed charge against respondents-accused under Exh.31.
Respondents-accused denied charge and claimed for their trial. In
order to bring home guilt of the respondents-accused the
prosecution has examined in all 9 witnesses and also relied upon
various documents
6. In the present appeal the respondents will be referred to
by their original position in the trial.
7. Accused no.2 Vishwanath and accused no.3 Sau.Kamlabai
are parents in law of deceased. Accused nos. 4 and 5 are sister in law
and brother in law of deceased so also, accused no.6 Sau.Godawari
was close relative of accused no.1 Gajanan.
8. This appeal was admitted only against original accused
no.1 Gajanan, the husband, accused no.2 Vishwanath, the father in
law and accused no.3 Sau. Kamlabai, the mother in law.
9. During the pendency of the present appeal accused no.2
Vishwnath expired and vide order dated 25/11/2014 this Court
ordered that appeal shall abated against accused no.2 Vishwanath.
Thus, by the said order it was observed by this Court now the appeal
will only proceed against original accused no.1 Gajanan and accused
no.3 Sau.Kamlabai.
10. F.I.R.(Exh.61) is lodged by Prakash(PW1). He is the
brother of deceased. His evidence shows that for initial period the
relations between deceased and all accused persons were coordial
and such relations continued till Diwali. However, thereafter
harassment was started on the demand for motorcycle, television and
on account of less dowry was paid. The evidence of this prosecution
witness shows that the allegations about the illtreatment against all
accused persons were very vague and general in nature.
11. It is the further evidence of this prosecution witness that
his deceased sister informed his wife on 13/5/1998 that prior to 15
days of the said date original accused no.2 Vishwanath tried to
molest deceased. The evidence of Prakash(PW1) shows that this fact
was not disclosed to him by deceased. Even as per the claim of this
prosecution witness this fact was intimated to him by his wife,
however the prosecution has not examined the wife of
Prakash(PW1). Therefore, the fact that the incident occurred 15 days
prior to 13/5/1998 about molestation at the hands of original
accused no.2 Vishwanath(deceased) is not proved at all.
12. Rajaram Gangaram Sakhare(PW2) is a panch witness. He
was examined by prosecution to prove spot panchnama(Exh.64). The
evidence of Kailas Ramrao Nawade(PW3) who is brother in law of
deceased reveals that he got all information about the illtreatment
from his wife Seema(PW8). Therefore the evidence of Kailash (PW3)
is also a hearsay evidence. Shivdansingh Devisingh Chavan(PW5)
and Ambadas Raoji Jadhao(PW6) are the panch witnesses in respect
of the memorandum statement recorded by investigating officer
Baburao Rayaji Khandare(PW9) by which investigating officer seized
the endosulpfan poison at the behest of accused no.2 Vishwanath.
This Court need not dilate on the issue of discovery and recovery of
endosulfan at the behest of original accused no.2 since the appeal
abated against him due to his death. Evidence of Rajaram Bhujanga
Adkine(PW7) reveals all the allegations against deceased Vishwanath
only. The evidence of Seemabai Kailash Nawade (PW8), the other
sister of deceased who also used to reside in the same village also
shows that her evidence is too general in nature in respect of the
allegation of harassment against the surviving respondents-accused.
13. Dr.Prakash Baburao Shingam(PW4) has conducted post
mortem and proved the same which is at Exh.68. Though he stated
that the cause of death is aspyxia due to organo phosperus
compound, he has admitted that in case of diphtheria froth can also
come out from the mouth and nostrils. This autopsy surgeon never
claims that he has preserved viscera of the deceased. Further, though
P.W.9 claims that he sent viscera to the chemical analyser the said
report is not coming on record. Consequently, it is crystal clear that
the prosecution has utterly failed to prove that the cause of death
was due to consumption of "organo phosperus compound".
14. Further the Court below in my view has rightly noticed
that there is delay in lodging F.I.R. Though F.I.R. (Exh.61) is lodged
on the very same day at 6.00 p.m. Prakash(PW1), the first informant
who was the panch also on the inquest panchnama(Exh.62) which
was performed at about 10.00 a.m. in the morning has failed to give
any explanation.
15. Since there are no allegations against accused no.1
Gajanan or any other specific allegations against original accused
no.3 Sau.Kamlabai I see no reason to upset the well reasoned
judgment given by the learned Judge of the Court below. As
observed, all the allegations in the testimony of Kailas (PW3) against
original accused no.2 Vishwanath that he molested deceased,
however the Court is not testing that evidence in respect of the same
incident since accused no.2 Vishwanath is already expired.
16. In that view of the matter appeal fails. Consequently, the
revision is also required to be rejected in view of the dismissal of
State appeal. Hence, both the appeal and revision are dismissed.
JUDGE
(kitey)
