Vidyadhar S/O Manikrao Nandurkar vs The State Of Maharashtra
2017 Latest Caselaw 7770 Bom

apeal.328.03.jud                           1



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

                    CRIMINAL APPEAL NO.328 OF 2003

Vidyadhar s/o Manikrao Nandurkar,
aged about 26 years,
R/o Hinganghat, Tahsil Hinganghat,
District Wardha.                                                    .... Appellant

       -- Versus -

The State of Maharashtra,
through P.S.O. Hinganghat,
District Wardha.                                                .... Respondent


Shri R.M. Daga, Advocate for the Appellant.
Shri N.H. Joshi, A.P.P. for the Respondent/State.

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : OCTOBER 4, 2017.


ORAL JUDGMENT :-

This appeal is directed against the judgment and

order dated 02/05/2003 passed by the learned 1st Ad hoc

Additional Sessions Judge, Wardha in Session Trial No.63/2002

thereby convicting the accused of the offence punishable under

Sections 498-A of the Indian Penal Code ('IPC' for short) and

sentencing him to suffer rigorous imprisonment for one year with

fine of Rs.500/- in default, rigorous imprisonment for 30 days.

Accused was, however, acquitted of the offence punishable

under Section 306 of IPC.

02] For the sake of convenience, appellant shall be

referred in his original status as accused as he was referred

before the trial Court.

03] The facts giving rise to the appeal may be stated in

brief as under :

i. Nana s/o Domaji Magar, a retired teacher, was

resident of Kori within the jurisdiction of Samudrapur

Police Station, District Wardha. Vaishali was his

daughter. She was married to accused on 16/05/1994.

The couple was blessed with a male child Kunal and a

female child Shiwani.

ii. According to prosecution, accused used to consume

liquor and beat Vaishali. He was raising quarrel and

insisting his wife to bring money from her parents. In

February, 2000, quarrel took place between accused

and Vaishali. As Vaishali was tired with the behaviour

of accused, she had been to railway track to commit

suicide. She could be anyhow saved and brought to

her father's house. During her stay at her maternal

house, she disclosed to her brother, sister-in-law,

father and mother about ill-treatment at the hands of

accused.

iii. On 08/05/2000, accused along with his friends visited

the house of parents of Vaishali. That time, he

threatened that in case she would not accompany

him, she would never be allowed to enter the house.

Vaishali then resumed the company of her husband

and went to her matrimonial house.

iv. On 07/10/2001, at around 11:00 a.m., an information

was received by her parents that Vaishali died. Death

was reported to Police Station Hinganghat. A.D. No.

92/2001 came to be registered and inquiry was made

under Section 174 of the Code of Criminal Procedure.

PW-5 PSI Arjun Raut recorded statement of the

witnesses. Head Constable Badge reached the place

of occurrence and recorded inquest-panchnama.

Spot-panchnama was drawn at the same time. From

the spot, a container of kerosene oil, lock, pieces of

saree, vessel were seized. Dead body was sent for

postmortem to Cottage Hospital, Hinganghat. Dr. M.

Shrivastava performed postmortem. After performing

postmortem, Medical Officer opined probable cause of

death as 'Cardiorespiratory arrest due to asphyxia

caused by burns'. It was also found that deceased

sustained 100% burns.

v. It appears that on completion of inquiry, PW-5 PSI

Arjun Raut lodged report on 01/11/2001. On the basis

of the said report, Crime No.296/2001 came to be

registered against the accused for the offences

punishable under Sections 498-A and 306 of IPC.

During investigation, statements of witnesses came to

be recorded. Seized articles were sent to Chemical

Analyzer for examination. After completion of

investigation, charge-sheet came to be filed before

the learned Magistrate, who in turn committed the

case for trial to the Court of Sessions.

vi. On committal, Sessions Court framed charge against

the accused vide Exh.11. Accused pleaded not guilty

and claimed to be tried. The factum of marriage is

not in dispute. Regarding alleged ill-treatment and

cruelty, defence of accused was of total denied and

false implication.

vii. In order to substantiate the guilt of accused,

prosecution examined in all five witnesses. In addition

to oral evidence, reliance came to be placed on

several documents. Considering the oral and

documentary evidence, trial Court came to the

conclusion that offence under Section 306 of IPC has

not been established against the accused. However,

regarding offence under Section 498-A, trial Court

found that accused being husband, subjected Vaishali

to cruelty and liable for punishment under Section

498-A of IPC. In consequence thereof, accused came

to be sentenced for the offence under Section 498-A

of IPC as stated hereinabove. Being aggrieved with

the order of conviction, accused has preferred this

appeal.

04] Heard Shri R.M. Daga, learned Counsel for appellant

and Shri N.H. Joshi, learned Additional Public Prosecutor for the

State. With the assistance of the learned Counsel for the parties,

this Court has perused the impugned judgment and order,

evidence of prosecution witnesses and documents on which

reliance has been placed. On meticulous evaluation of the

evidence, this Court for the below mentioned reasons finds that

prosecution could not prove the guilt of accused beyond

reasonable doubt for the offence punishable under Section 498-A

of IPC.

05] It is not in dispute that marriage took place on

16/05/1994 and alleged incident occurred on 07/10/2001 i.e.

after seven years of marriage. It is also not in dispute that for

the initial 2-3 years, matrimonial life of Vaishali and accused was

smooth. It is an admitted fact that couple was blessed with a

son and a daughter.

06] In order to prove the alleged guilt, prosecution

examined PW-1 Nana Magar, father of the victim, PW-2

Pandurang Magar, her brother and PW-3 Archana Magar, sister-

in-law of Vaishali and wife of PW-2. According to PW-1 Nana,

Vaishali used to visit her maternal place and she disclosed that

her husband was beating her on account of household affairs.

She also disclosed that he was insisting her to bring money from

her parents. It is stated by Nana that in February, 2000, his son

brought Vaishali to his place. After about 8-15 days, accused

came to his house and raised quarrel. That time, he met Vaishali.

It is further stated by PW-1 Nana that Vaishali stayed at his

house till May, 2000. Thereafter, accused came with his friends

and took Vaishali back. According to Nana, on 07/10/2001, two

persons came on motorcycle and informed that Vaishali was

caught by fire. They immediately rushed to the house and found

Vaishali dead.

07] The evidence of PW-2 Pandurang Magar and PW-3

Archana Magar is on the same line. They have also stated that

whenever Vaishali was visiting their house, she disclosed that

she was beaten by her husband and he was insisting her to bring

money from her parents.

08] From the facts elicited in cross-examination of these

three important witnesses, it can be seen that their statements

were recorded after a considerable time. Incident took place on

07/10/2001 and as indicated above, a report came to be lodged

on 01/11/2001 i.e. after 24 days by PSI Raut. None from the

family members complained till that time about the alleged ill-

treatment and cruelty to Vaishali at the hands of accused.

Investigating Officer has not assigned any reason and did not

explain the belated recording of statements of witnesses.

Inordinate unexplained delay in recording statements of PW-1,

PW-2 and PW-3 would adversely affect the substratum of

prosecution case.

09] Another significant factor to be noted in the present

case is that evidence of these three witnesses is vague and

omnibus statement has been made by them that Vailshali was ill-

treated on account of demand of money. No specific instances

have been quoted. From the evidence of PW-1 Nana PW-2

Pandurang, it can be seen that they were not aware about the

happening between May, 2000 till 07/10/2001. So far as PW-3

Archana is concerned, she admits that matrimonial life of

Vaishali was smooth and they did not hear anything from her in

the span of 1½ years. This clearly indicates that Vaishali was not

subjected to harassment as alleged by the witnesses. Had it

been so, natural conduct on their part would have been to rush

to the Police Station and lodge report immediately. As evidence

of father, brother and sister-in-law is vague and does not give

specific instances of alleged demand of money, it would not be

enough to prove the charge under Section 498-A of IPC.

10] It is significant to note that all the three witnesses

have categorically admitted that once Vaishali had been to

railway track to commit suicide and it was because of immediate

step taken by accused that her life could be saved as he rushed

to the spot and brought her back. This clearly states that

Vaishali was of hot temperament. It is also to be noted that from

marriage till the report was lodged by PSI Raut, no one had

complained that Vaishali was ill-treated by accused on demand

of money. All these facts together would show innocence on the

part of accused and would disprove the case of prosecution

regarding alleged harassment and cruelty to Vaishali at the

hands of accused.

11] In the light of the above, this Court on careful scrutiny

of evidence finds that offence under Section 498-A of IPC has not

been proved by the prosecution beyond reasonable doubt. In

the result, judgment and order of conviction and sentence is

unsustainable in law. Hence, the following order :

ORDER

I. Criminal Appeal No.328/2003 is allowed.

II. Impugned judgment and order dated 02/05/2003

passed by the learned 1st Ad hoc Additional Sessions

Judge, Wardha in Session Trial No.63/2002 is quashed

and set aside.

III. Appellant-accused Vidyadhar Manikrao Nandurkar is

acquitted of the offence punishable under Section

498-A of IPC.

IV. His bail bonds shall stand cancelled forthwith.

*sdw                                          (Kum. Indira Jain, J)