Rajendra S/O Shrikrushna Thakre vs State Of ...
2017 Latest Caselaw 2399 Bom

 CRI. APPEAL NO.501.02 (VJ).odt                1
   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                    CRIMINAL APPEAL NO.501 OF 2002


 Rajendra s/o Shrikrushna Thakre,
 Aged about 37 years,
 R/o. Sawali, Police Station Ladkhed,
 District-Yavatmal.                                 ..               APPELLANT


                               .. VERSUS ..


 State of Maharashtra, through Police
 Station Officer, Ladkhed,
 District-Yavatmal.                   ..                         RESPONDENT




                    ..........
 Shri H.D. Dangre, Advocate for Appellant,
 Shri N.B. Jawade, APP for Respondent-State.
                    ..........


                               CORAM : KUM. INDIRA JAIN, J.

DATED : MAY 08, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and order dated 13.9.2002 passed by the learned Adhoc

Additional Sessions Judge, Yavatmal in Sessions Trial

No.41/1999 thereby convicting the appellant of the offences

punishable under sections 498-A and 306 of the Indian Penal

Code and sentencing him as under :

  Sr.         Conviction under                 Punishments
  No.            sections
  1.        498-A, IPC                Rigorous imprisonment for 2
                                      years and fine of Rs.1000/-
                                      in-default Simple Imprisonment
                                      for one month.
  2.        306, IPC                  Rigorous imprisonment for 4
                                      years and fine of Rs.2000/-
                                      in-default Simple Imprisonment
                                      for 2 months.



 2]             For the sake of convenience, appellant shall be

referred in his original status as an accused as he was

referred before the trial court.

3] Prosecution case which can be revealed from the

chargesheet and connecting papers thereto may be stated

in brief as under :

(a) Deceased Malti was married to accused

some were in April, 1993. The couple was blessed

with a male and a female child. They were residing

at Sawali within the jurisdiction of Police Station

Ladkhed, District-Yavatmal.

(b) On 2.1.1999, Malti committed suicide by

consuming poison. PW-1 Kalawatibai, mother of

Malti, lodged oral report on 6.1.1999 at Ladkhed

Police Station alleging therein that after the birth of

daughter Pratiksha, Malti was illtreated by

accused, as he had extra marital relations with

another woman of the village. On the oral report,

Crime No.4/1999 was registered against the

accused for the offences punishable under sections

498-A and 306 of the Indian Penal Code. PW-5 PSI

Prakash Taklikar took over investigation. He visited

the place of occurrence of incident and recorded

spot panchanama.

(c) It appears that after the death of Malti on

2.1.1999 A.D. No.1/1999 was registered at

Yavatmal City Police Station. During enquiry,

inquest panchanama was drawn. Dead body was

sent for postmortem. After postmortem, viscera

was forwarded to chemical analyser and it was

found that death occurred due to poisoning.

(d) On 6.1.1999, investigating officer

recorded statements of mother and father of the

deceased. The clothes of deceased were forwarded

by the medical officer to Police Station. The same

came to be seized and its seizure panchanama was

drawn. Accused was arrested on 8.1.1999.

Statements of Nalini, sister of deceased and other

witnesses were recorded. After completing

investigation, chargesheet was filed before Judicial

Magistrate, First Class, Darwha, who in turn,

committed the case for trial to the Court of

Sessions.

4] On committal, charge came to be framed against

the accused vide Exh.8. He pleaded not guilty and claimed

to be tried. Accused raised a specific defence that his wife

was raising suspicion about his character and he disclosed

the same to her parents. He also requested the parents of

Malti to pacify her but she was a hot tamper lady and took

extreme step to put an end to her life. Accused submitted

that he is innocent and is not responsible in any way for

suicide committed by his wife.

5] Prosecution examined in all five witnesses to

substantiate the guilt of the accused. Considering the

evidence of prosecution witnesses, submissions made on

behalf of the parties and relying upon the presumption

under section 113-A of the Indian Evidence Act, trial court

came to the conclusion that offences punishable under

sections 498-A and 306 of the Indian Penal Code have been

established against the accused. In consequence, accused

came to be convicted as stated in paragraph 1 above.

Being aggrieved thereof, accused has preferred the present

appeal.

6] Heard Shri Dangre, learned counsel for Appellant

and Shri Jawade, learned Additional Public Prosecutor for

Respondent-State. With the assistance of the learned

counsel for the parties, this court has carefully scrutinized

the evidence of prosecution witnesses. Taking into

consideration the evidence, reasons recorded by the trial

court and submissions made on behalf of the appellant and

the respondent-state, this court, for the below mentioned

reasons, is of the view that prosecution could not prove guilt

of the accused beyond all reasonable doubt and accused

ought to have been acquitted.

7] PW-1 Kalawatibai and PW-2 Nalini are the star

witnesses for prosecution. Kalawatibai is mother of Malti

and Nalini is her elder sister. It is stated by Kalawatibai that

after marriage till the birth of daughter Pratiksha, Malti was

treated well by the accused. The evidence of Kalawatibai

clearly indicates that Pratiksha was born 1¼ years before

the incident.

According to Kalawatibai Malti had been to her

parental house on two occasions (i) during mango season

that is in summer and (ii) during diwali festival. It is stated

by Kalawatibai that at the time of mango season, Malti

disclosed to her that she was illtreated by the accused as he

was addicted to liquor and womanizing. That time she

stayed for a month at her parents house.

Regarding diwali festival, Kalawatibai states that

accused illtreated Malti and he used to beat her by D.P. wire.

She disclosed about illtreatment to her and that time she

also stated that he was coming late in the night and he had

extra marital relations with another woman. From the facts

elicited in the cross-examination of Kalawatibai, it is

apparent that illtreatment, as stated by her during summer

season and diwali festival, is an omission in her statement

recorded by police. So story of illtreatment built up in

examination-in-chief has been demolished in her cross-

examination and in view of material and vital omissions, no

reliance could have been placed on the testimony of

Kalawatibai.

Another significant factor to discredit her

testimony is an unexplained and inordinate delay in lodging

FIR. Incident took place on 2.1.1999. Report was lodged on

6.1.1999. Even in oral report, there is no whisper about the

alleged incident of illtreatment which took place at the time

of mango season.

8] PW-2 Nalini is the elder sister of Malti. She stated

that since beginning of marriage, Malti was illtreated. This is

contrary to the evidence of her mother, who admits in

unequivocal terms that till the birth of Pratiksha, Malti was

treated well by the accused. Even evidence of Nalini suffers

from material contradictions and the fact of illtreatment

which she narrated in her evidence does not find place in

her statement recorded during investigation. As testimonies

of PW-1 Kalawatibai and PW-2 Nalini are inconsistent on

manner of incident, no reliance can be placed on their

evidence.

9] A futile attempt was made on behalf of prosecution

to prove the alleged illtreatment and torture through the

evidence of PW-3 Shashikalabai and PW-4 Subadrabai.

These two witnesses were working in the field of father of

the deceased on daily wages. From the evidence of PW-3

Shashikalabai and PW-4 Subadrabai, it can be revealed that

except a solitary instance, where Malti disclosed about

illtreatment to them, there is nothing to show that they had

relations of trust or confidence to the extent that Malti chose

to disclose about illtreatment to them. Since both these

daily wage workers were working with the father of Malti,

they had a strong reason to side the prosecution and in any

case their vague evidence will not help the prosecution in

any manner.

10] Investigating Officer PW-5 PSI Prakash Taklikar

admitted in cross-examination that he did not examine the

neighbours of the accused. It is needless to state that

neighbours of the accused were the best available witnesses

who could have thrown light on the alleged illtreatment or

torture to the deceased by the accused. No reason is

assigned for their non examination during investigation.

11] Another serious draw back in the investigation is

non examination of Kalawatibai, who disclosed about extra

marital relations of accused with another lady of village.

Investigating Officer admitted that he did not enquire about

extra marital relations of the accused with another woman.

This clearly indicates that investigation was conducted half

way. According to prosecution, accused used to illtreat the

deceased, as he had illicit relations with a woman.

Investigating Officer, in his wisdom, did not think it proper to

investigate into the main cause of illtreatment to the

deceased and this inaction on the part of investigating

agency raises a serious doubts about the prosecution case.

12] The next serious lapse in the case of prosecution is

absence of evidence on the nexus between alleged

illtreatment and suicide. There is nothing on record to show

that after Diwali festival, Malti was illtreated at any time.

The absence of proximity is enough to take away the

prosecution case out of the purview of Section 306 of the

Indian Penal Code.

13] So far as presumption under Section 113-A of the

Indian Evidence Act is concerned, the same would not be

attracted in the facts of the present case, though death

occurred within seven years of marriage. It is a settled law

that prosecution has to prove its case beyond reasonable

doubt. It is only after case is legally proved, question of

presumption would arise. In the case on hand, as discussed

supra, prosecution failed to prove the charge and, therefore,

presumption under Section 113-A of the Evidence Act would

not come into play.

14] In the above premise, appeal succeeds. Hence,

the following order :

ORDER

(i) Criminal Appeal No.501 of 2002 is allowed.

(ii) Impugned judgment and order of conviction and

sentence dated 13.9.2002 passed by the learned Adhoc

Additional Sessions Judge, Yavatmal in Sessions Trial

No.41/1999 is quashed and set aside.

(iii) Accused is acquitted of the offences punishable

under sections 498-A and 306 of the Indian Penal Code.

(iv) His bail bond stands cancelled forthwith.

(v) Fine, if paid, shall be refunded to the appellant-

accused.

(Kum. Indira Jain, J.)

Gulande, PA