Mahesh S/O Laxman Gondane And 5 ... vs State Of ...
2017 Latest Caselaw 8662 Bom

 apeal582of02.odt                          1




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


                     CRIMINAL APPEAL NO.582 OF 2002


 1        Mahesh s/o. Laxman Gondane,
          aged 27 years,

 2        Vishnu s/o. Laxman Gondane,
          aged 18 years,

 3        Lokesh @ Lavkush s/o. Ganpat Dongre,
          aged about 39 years,

 4        Sau. Sarla w/o. Bandu Dongre,
          aged 24 years,

 5        Sau. Geeta W/o. Lokesh @ Lavkush Dongre,
          aged 32 years,

 6        Bandu s/o. Ganpat Dongre,
          aged 44 years,

          All residents of Chandramani Nagar, 
          Nagpur                                                     ...APPELLANTS


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


 The State of Maharashtra,
 Through Police Station Officer
 Kamptee, Nagpur                                                     ...RESPONDENT

 -------------------------------------------------------------------------------------------
     Ms. F.N. Haidri, Advocate h/f. Mr. R.M. Daga, counsel for the
                                       Appellants.
       Mrs. M.H. Deshmukh, Additional Public Prosecutor for the
                                  Respondent /State.
 -------------------------------------------------------------------------------------------



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  apeal582of02.odt                     2




                                       CORAM:      
                                                 ROHIT B. DEO, J. 

  DATE OF RESERVING THE JUDGMENT     
                                             
                                             :01.09.2017
  DATE OF PRONOUNCING THE JUDGMENT        
                                             :14.11.2017


 JUDGMENT:

Exception is taken to judgment and order dated

30.9.2002 in Sessions Trial 117 of 2002 delivered by 3 rd Adhoc

Additional Sessions Judge, Nagpur, by and under which, while

acquitting the appellants (hereinafter referred to as "the accused)

of offence punishable under section 304-A and 306 read with

section 34 of the Indian Penal Code ("IPC" for short), the learned

Sessions Judge has convicted the accused of offence punishable

under section 498-A of IPC and has sentenced the accused to

suffer rigorous imprisonment for a period of 3 years and to

payment of fine of Rs. 2000/- each.

2 Heard Smt. Haidri holding for Shri. R.M. Daga, the

learned counsel for the appellants and Smt. M.H. Deshmukh, the

learned Additional Public Prosecutor for the respondent / State.

3 The prosecution case as is unfolded during the course

of trial is thus:

The deceased Trishala who concededly committed suicide

on 4.9.2001, entered into matrimonial alliance with accused 1

Mahesh seven years or thereabout prior to her unfortunate death.

4 Accused 2 - Vishnu is the younger brother of accused

1 - Mahesh, accused 3 - Lokesh and accused 6 - Bandu are the

maternal uncles of Mahesh, accused 4 - Sarla and accused 5 Geeta

are the wifes of accused Bandu and accused Lokesh, respectively.

5 Complainant Jaibhim is the father of the deceased

Trishala. Jaibhim and the accused are neighbours. The marriage

between Trishala and Mahesh was not an arranged marriage and

was not taken kindly by the family of the deceased Trishala. The

families of the deceased Trishala and Mahesh were not on talking

terms.

6 Jaibhim was unhappy with the marriage. However,

after Trishala and Mahesh were blessed with daughter Sanjana,

the situation improved and Trishala started visiting the house of

Jaibhim.

7 PW 1 - Anita, is the second wife of complainant

Jaibhim. The case of the prosecution as is unfolded through the

evidence of PW 1 - Anita, PW 3 - Jaibhim and his son PW 2 -

Trinayan, is that during visits to Jaibhim's residence, Trishala used

to disclose, that she was subjected to harassment by the accused,

the accused did not behave properly, demanded money, assaulted

and taunted Trishala. Trishala once inflicted injury to her hand

with blade, is the case of the prosecution. Prior to the incident, on

3.9.2001, all the accused had a serious altercation with Trishala

and Anita whom the accused assaulted. Anita was admitted to

Mayo Hospital for treatment and on the next day on 4.9.2001

Trishala committed suicide.

8 Accused 2 - Vishnu reported the incident to the

police. Inquiry under section 174 of the Code of Criminal

Procedure was initiated. Spot panchanama was recorded on

5.9.2001. The dead body of Trishala was referred to autopsy, post

mortem report was received.

9 On 13.9.2001, Jaibhim lodged report alleging that

Trishala was forced to commit suicide in view of the cruelty to

which she was subjected and on the basis of the said report

offence punishable under sections 498-A, 304-B and 306 read with

section 34 of the IPC was registered.

10 The statements of witnesses were recorded,

completion of investigation led to submission of charge-sheet in

the Court of Judicial Magistrate First Class who committed the

proceedings to the Sessions Court. The learned Sessions Judge

framed charge vide Exh. 4, the accused abjured guilt and claimed

to be tried. The defence of the accused, as is discernible from the

trend of the cross-examination and the statement recorded under

section 313 of the Code of Criminal Procedure, is of total denial.

The defence is that Trishala felt humiliated since her father

Jaibhim married PW 1 Anita at a late stage of life. It is also

suggested in defence that Jaibhim was insisting that Trishala avail

financial assistance, which she was not inclined to do.

11 Anita Borkar, who claims to be the second wife of

Jaibhim is examined as PW 1. She is the step-mother of the

deceased Trishala. PW 1 Anita married Jaibhim, 4 to 5 months

after the solemnization of marriage between deceased Trishala

and accused Mahesh.

Anita states that Trishala used to disclose that she was

harassed by the family members of accused Mahesh. Trishala used

to disclose that the family members of Mahesh did not behave

properly and that she was subjected to taunts insinuating that

nothing was given to her by her parents on the occasion of

marriage.

12 PW 1 Anita then states that accused 2 to 5 came to

her house, abused and threatened her and assaulted her.

The witness, however, states that Trishala did not

disclose about harassment for fulfillment of demand of Rs.

20,000/- or sewing machine and sofa-set. It is brought out in the

cross-examination of PW 1 that the statement that Trishala was

harassed since she was talking to Anita and the statement that

witness Anita became unconscious because of assault, is an

omission.

PW 2 - Trinayan is the brother of Trishala who states

that Trishala disclosed that her family members require money

and that her husband is not behaving properly. He has deposed

that on 3.9.2001 a quarrel took place between Trishala and her

family members. He has further deposed that Mahesh was beating

Trishala in his presence. He then states that at 8 pm in the

evening, Mahesh and Lokesh quarreled with the younger brother

of the witness and the step-mother PW 1 Anita who became

unconscious. In the cross examination, it is brought on record that

the statement that accused Mahesh was beating Trishala, is an

omission. The statement that Trishala came to her parental home

and disclosed that she was harassed, is again an omission. The

statement that the step-mother was beaten by Lokesh and she was

unconscious, is an omission. The witness admits that due to the

litigation between Jaibhim and the first wife Pushpakala, the

deceased Vishakha was always worried. The witness admits that

marriage between his father Jaibhim and mother Pushpakala was

not dissolved in accordance with law.

The complainant Jaibhim is examined as PW 3. PW 3

Jaibhim states that the accused started harassing Trishala since

dowry was not given in the marriage. Trishala visited Jaibhim's

house on the occasion of Rakhi festival and disclosed that the

accused are harassing her and that she apprehends danger to life.

Jaibhim further states that Trishala inflicted cut on her hand with

blade. Jaibhim has deposed that on 03-9-2001 PW 1 Anita was

assaulted by accused Vishnu, Bandu and Lokesh who came to the

house of the witness. Due to assault, PW 1 Anita fell unconscious

and next morning was taken to Mayo Hospital. In the night of

03-9-2001 accused Bandu, Lokesh and Vishnu threatened that

Trishala will not live. In the cross-examination, Jaibhim is not in a

position to offer any explanation for the delayed report. It is

brought on record that significant statements in the examination-

in-chief are omissions. Jaibhim admits that his marriage with

Pushpakala, the mother of Trishala, is not dissolved in accordance

with law and that maintenance proceedings instituted by

Pushpakala are pending. Jaibhim denies the suggestion that

Trishala fell humiliated due to Jaibhim's marriage with Anita, who

is much younger than Jaibhim. He also denies the suggestion that

he was insisting that Trishala avail financial assistance which

accused Mahesh did not approve of.

Sukeshani, the sister of the deceased Trishala is

examined as PW 4. Her version is that Trishala used to disclose

that her husband and the maternal uncles of the husband were not

behaving properly and that an amount of Rs.20,000/- was

demanded from her.

Ranjitsingh Chouhan, the investigating officer, is

examined as PW 6. The investigating officer admits that he

recorded the statements of the witnesses in the accidental death

enquiry, between 05-9-2001 and 12-9-2001. He, however, denies

the suggestion that the statements are not filed alongwith charge-

sheet since they do not support the prosecution. The omissions,

which are brought out in the cross-examination for the

prosecution witnesses, have not been proved through the

investigating officer, which is strange, to say the least.

13. Ms. F.N. Haidri, learned Counsel for the accused

submits that the evidence on record is suggestive of false

implication. The unexplained delay in lodging the first

information report, renders the prosecution case suspect, is the

submission. I am inclined to accept the submission of the learned

Counsel for the accused that the delay in lodging the first

information report is not explained, muchless satisfactorily.

Trishala committed suicide on 04-9-2000 and the first information

report was lodged only on 13-9-2000. The statements of witnesses

which are produced alongwith the charge-sheet are recorded only

thereafter. Although the investigating officer admits to have

recorded the statements of witnesses in the accidental death

enquiry, those statements are not produced on record.

Concededly, an incident involving PW 1 Anita and accused Bandu,

Lokesh and Vishnu occurred on 03-9-2000. The prosecution

witnesses are in unison stating that P.W.1 was assaulted and she

fell unconscious. In my opinion, the possibility of false implication

or over implication of the accused is a real possibility. It is obvious

from the evidence that the relationship between the family of the

deceased on one hand and accused Mahesh and his family

members on the other was strained, in view of the love marriage

between Trishala and accused Mahesh. The altercation between

P.W.1 Anita and some of the accused, which incident is, however,

blurred, to which the prosecution witnesses have testified may

have motivated the prosecution witnesses to falsely implicate the

accused, is a possiblity which cannot be excluded.

14. The evidence on record is grossly insufficient to

record a finding that the deceased Trishala was subjected to

cruelty within the meaning of Explanation (a) or (b) of Section

498-A of the Indian Penal Code. The evidence is absolutely vague

and inconsistent. Illustratively, PW 1 Anita vaguely states that

Trishala used to disclose that she was harassed and that the family

members of her husband Mahesh did not behave properly. PW 1

Anita, however, states that Trishala did not disclose anything

about harassment to coerce her to fulfill demand of Rs.20,000/- or

sewing machine of sofa-set.

PW 2 Trinayan again vaguely states that the

disclosure was that the family members of Trishala needed money

and that her husband did not behave properly. The solitary

statement in the evidence of Trinayan that Mahesh was beating

Trishala in his presence, must be discarded as untrustworthy since

it is not the case of any other family member that Trishala was

physically assaulted by her husband Mahesh. Be it noted, that

although in the cross-examination of Trinayan, it is brought on

record that the statement that accused beat Trishala, is an

omission, the omission is not proved in the cross-examination of

the investigating officer. Similarly, every significant statement in

Trinayan's evidence is brought on record as omission, but then the

omission is not proved. The evidence of PW 3 Jaibhim is again not

reliable and confidence inspiring. He generally states that his

daughter Trishala was harassed because, in view of the love

marriage, dowry was not given. The version that Trishala

apprehended danger to life or that Trishala inflicted injury on her

hand due to harassment, is not supported by the testimony of any

other witness. The evidence of PW 4 Sukeshani that according to

Trishala she was demanded Rs.20,000/- must be discarded as

untrustworthy. The said evidence is inconsistent with that of PW

1 Anita. Neither the brother (P.W.2) nor the father (P.W.3) have

testified as to the demand for Rs.20,000/-. The evidence on

record is marred by inter se discrepancies and is vague, sketchy

and bereft of particulars. I am not inclined to permit the

conviction to rest on the basis of the evidence on record. To my

mind, the strained relationship, the incident of assault involving

PW 1 Anita and some of the accused, an unexplained delay in

lodging the first information report, the inter se inconsistencies in

the evidence, the sketchy and vague allegations, cumulatively

would suggest false or over implication and the benefit of the

doubt must necessarily go to the accused.

15. The impugned judgment and order dated 30-9-2002

in Sessions Trial 117/2002 delivered by the learned 3 rd Ad hoc

Additional Sessions Judge, Nagpur is set aside. The accused are

acquitted of the offence punishable under Section 498-A read with

Section 34 of the Indian Penal Code. The bail bonds of the accused

shall stand discharged. The fine paid by the accused, if any, be

refunded to them.

JUDGE

belkhede/adgokar