Sheshrao Wasudeo Dange vs The State Of Mah. Thr. Its Pso Pso ...
2017 Latest Caselaw 2612 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                       Criminal Appeal No. 555 of 2003

 Sheshrao son of Wasudeo Dange,
 aged 24 years,
 occupation - Labour & Agriculturist,
 resident of Gram Deorda,
 Tq. Akot, Distt. Akola.                      .....           Appellant


                                   Versus


 The State of Maharashtra,
 through Police Station Officer,
 Police Station, Dahihanda,
 Tq. Akot,
 Distt. Akola.                                .....        Respondent.

                                    *****
 Ms. Kshirsagar, Adv., holding for Mr. Anil Mardikar, Sr. Adv., for
 the appellant.
 Ms. Shamsi Haidar, Addl. Public Prosecutor for the respondent.


                                    *****




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                                        CORAM :               A.S. CHANDURKAR, J.

                                        Date           :      24th May, 2017

 ORAL JUDGMENT:

01. The Appellant - Accused No.1 in Sessions Trial No. 109 of

2002 challenges his conviction for having committed offences

punishable under Sections 306 and 498-A of the Indian Penal Code. By

the impugned judgment dated 26th August, 2003, the appellant has

been directed to suffer Rigorous Imprisonment for a period of five

years for the offence punishable under Section 306 of the Penal Code

and for a period of one year for the offence punishable under Section

498-A of the Penal Code.

02. Case of the prosecution is that the appellant was married

with one Meena on 16th April, 2000. The couple had a male child out

of their wedlock. On 1st April, 2002, the appellant admitted his wife in

the Govt. Hospital for treatment. His wife expired on 7th April, 2002 at

11.00 a.m. The father of Meena lodged a report on 9th April, 2002,

alleging that on account of unlawful demand of money, his daughter

had committed suicide. After the crime was registered, the

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investigation was carried out. The appellant, his parents and his sister

were tried for the aforesaid offences. At the conclusion of the trial, the

appellant was convicted in the manner stated herein above, while the

other accused were acquitted.

03. Ms. Kshirsagar, learned counsel for the appellant, submitted

that there was no sufficient evidence on record brought by the

prosecution to prove beyond reasonable doubt that it was the

appellant who had committed an offence under provisions of Sections

306 and 498-A of the Penal Code. She submitted that though the

father of the deceased had been given the intimation that his daughter

was under treatment on 4th April, 2002, a report came to be lodged

only on 9th April, 2002 which was two days after her death. She

submitted that in his cross-examination, the appellant's father-in-law

had admitted that the amounts given by him earlier were as advance.

The deposition of PW 2 - Jagannath Katre could not be believed as in

his statement that was first recorded, there was an omission to state

that he had sold she-goats for raising the amounts. According to her,

in absence of any specific evidence as to abetment or harassment, the

appellant could not have been so convicted. In that regard, she placed

reliance upon the judgments of the Honourable Supreme Court in [a]

Ramesh Kumar Vs. State of Chhattisgarh [ (2001) 9 SCC 618],

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[b] Rajbabu & another Vs. State of Madhya Pradesh [ (2008) 17

SCC 526], and [c] Gurcharan Singh Vs. State of Punjab [ (2017) 1

SCC 433].

04. Ms. Shamsi Haidar, learned Addl. Public Prosecutor for the

respondent, supported the impugned judgment. She submitted that

the death occurred within seven years from the marriage of the

appellant and hence there was a presumption under provisions of

Section 113-A of the Evidence Act. There was evidence on record to

indicate demand of dowry and its payment. Merely because there was

some delay in lodging the report, that by itself was not fatal to the

case of the prosecution. He, therefore, submitted that the appellant

was rightly convicted by the trial Court.

05. With the assistance of the learned counsel for the parties, I

have perused the records of the case and I have given due

consideration to the respective submissions.

06. As the conviction of the appellant is for offence punishable

under Section 306 of the Penal Code, it would be necessary to refer to

the legal position in the light of the law laid down by the Honourable

Supreme Court. In Ramesh Kumar [supra], it was held that to attract

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the provisions of Section 306 of the Penal Code, there has to be

instigation to provoke, incite or encourage to do "an act". In Rajbabu

& another [supra], it has been held that the Court has to consider

whether alleged cruelty was of such nature that was likely to drive the

woman to commit suicide. Merely because suicide was committed

within seven years of the marriage, the same would not automatically

give rise to the presumption that suicide had been abetted by her

husband. In Gurucharan Singh [supra], it was observed that

continuity, culpability and complicity are various factors leading to

abetment.

07. In the light of the aforesaid legal position, if the evidence on

record is examined, it can be seen that PW 1 at Exh.31 has referred to

demand of Rs.5,000-00 by the appellant. According to him, he had

gone to PW 2 - Jagannath Katre for raising this amount which was then

given to the appellant. PW 2 - Jagannath Katre at Exh.34 has stated

that he raised the said amount by selling his she-goats. However, the

Investigation Officer [PW 6] was confronted with the omission of the

fact that no such statement was made by PW 2 with regard to sale of

she-goats. Another relevant aspect to be noted is that PW 1 in his

cross-examination has categorically stated that an amount of

Rs.5,000/- was given to the appellant in January, 2001 as an advance.

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On a subsequent occasion also, an amount was demanded as advance.

Thus, if, according to father of the deceased, the amount of Rs.5,000/-

was given as advance to the appellant, the same would not partake

the character of an unlawful demand. As far as this piece of evidence is

concerned, it hardly supports the case of the prosecution either with

regard to offence under Section 306 or Section 498-A of the Penal

Code.

08. Yet another aspect, which is required to be noted, is that the

father of deceased got information about the fact that his daughter

was undergoing treatment on 4th April, 2002. She expired on 7th

April, 2002 and the report came to be lodged only on 9th April, 2002.

There is no explanation coming on record for reason of delay. It is

admitted that the report at Exh.32 was lodged on 9th April, 2002 after

obtaining legal advice. The Investigating Officer has admitted that the

police personnel were available at the Govt. Hospital. Silence of PW 1

from 4th April, 2002 till 9th April, 2002 has gone unexplained.

The accused nos. 2 to 4, who were also charged with the

similar offence, have been acquitted. Thus, the evidence, which was

found to be insufficient against Accused Nos. 2 to 4, has been taken

into consideration for the purposes of convicting Accused No.1. This

approach is also not sustainable.

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09. In view of aforesaid material on record, it cannot be

concluded that the prosecution has proved its case beyond reasonable

doubt. The judgment of the trial Court, therefore, cannot be sustained.

In the result, the appeal succeeds. The judgment dated 26th August,

2003 in Sessions Trial No. 109 of 2002 is quashed and set aside. The

appellant stands acquitted of the aforesaid offences. Order

accordingly.

Judge

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