Jeeja Prakash Khandarkar vs State Of Mah.Thr.P.S.O.Shirkhed
2017 Latest Caselaw 7560 Bom

                                                                                                            CRI.APPEAL.768.03
                                                                       1


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

                                                 CRIMINAL APPEAL NO.768/2003

            Sau. Jeeja Prakash Khandarkar
            Aged about 40 years,
            R/o Shirlas, Tq.Morshi
            Dist. Amravati.                                                           ..           APPELLANT

                        versus

            The State of Maharashtra
            Through Police Station Officer, Shirkhed,
            Tq. Morshi, Dist. Amravati                                                 ..         RESPONDENT

...............................................................................................................................................
            Mr. Kuldip Mahalle, Advocate for the appellant
            Mr. S.B.Bissa, Additional Public Prosecutor for respondent -State
................................................................................................................................................

                                                                           CORAM: MRS.SWAPNA JOSHI, J.

DATED: 26th September, 2017

ORAL JUDGMENT:

Being aggrieved by the judgment and order dated 29.11.2003 in

Sessions Trial No. 186/1998 delivered by the learned 3rd Ad-hoc Additional Sessions

Judge, Amravati, convicting the appellant (hereinafter referred to as 'the accused') for

the offence punishable under section 323 of the Indian Penal Code and sentencing her

to suffer R.I. for three months and to pay a fine of Rs.500/-, in default, to suffer R.I. for

fifteen days, the present Appeal is filed.

2. I have heard Mr. Kuldip Mahalle, learned counsel for the appellant, and

Mr. S.B.Bissa, learned Additional Public prosecutor for the Respondent-State. With

CRI.APPEAL.768.03

their assistance, I have gone through the record and proceedings of the case, minutely.

3. Brief facts giving rise to the instant Appeal may be summarized as

under:-

The complainant-Shalikramn Choudhary (PW1) was residing at village

Shirlas, Tq.Morshi, Dist. Amravati, along with his wife, one daughter, namely, Rekha

(deceased) and two sons. On the day of incident i.e. on 21.5.1998, the complainant

along with his wife proceeded to the field to work as Labourers for doing agricultural

work, whereas his sons had gone out for grazing she-goats. Rekha was alone at

home. At about 1.30 p.m. when the complainant returned home along with his wife

they did not find their daughter in the house. On enquiry from their neighbour-

Smt.Venubai Hivrale (PW3) they came to know that Jija Prakash Khandarkar (accused)

assaulted Rekha by fists, kick blows and foot-wear and she was saying that she wont

keep her alive till arrival of her parents and said that Rekha was having illicit

relationship with her husband Prakash. Venubai (PW3) narrated the entire incident to

the complainant and said that the said incident had occurred at about 9.00 am in the

morning and since then Rekha had gone somewhere. On 22.5.1998 the dead body

of Rekha was found in the well belonging to one Madhukar Choudhari. The matter was

reported to the Police. Complainant-PW1 lodged his complaint against the accused

(Exh.21).

4. At the relevant time, PSI Madhukar Shendokar (PW 4) was attached

to Shirkhed Police Station. He recorded the complaint of PW1. On the basis of the

said complaint, he registered the offence. ASI, PW 6-Vasantrao Kadu visited the place

CRI.APPEAL.768.03

of incident and prepared the spot panchnama. He also prepared the inquest

panchnama and sent the dead body for autopsy to the Hospital. ASI Shrikrishna

Dhigar (PW 7) recorded the statements of various witnesses and on completion of

investigation, submitted the charge-sheet in the Court. The case was committed to the

court of Sessions. The learned trial Judge framed the charge and on analysis of the

evidence and after hearing both sides, convicted the accused, as aforesaid. Hence this

Appeal.

5. Mr. Kuldip Mahalle, the learned counsel for the appellant vehemently

argued that the learned trial Judge has failed to consider the important aspect that

there is an inordinate delay in lodging the complaint by PW1, who is the father of the

deceased. He submitted that there is no explanation on record as to why there is

delay in lodging the complaint as such. He further submitted that the learned trial Judge

has erroneously convicted the accused without considering the material facts. Mr. S.B.

Bissa, the learned APP, on the other hand, contended that the learned trial Judge after

considering the entire evidence in its right perspective, has rightly convicted the

accused.

6. After going through the rival contentions of the respective counsels, it

would be beneficial to go through the the prosecution case. The prosecution has mainly

relied upon the testimony of PW 3-Venubai Hivrale, PW 5-Rajkanya Wakode, PW1-

Shalikram Choudhari and PW2-Prabha Choudhari, who are the parents of the

deceased.

7. It is not disputed by the defence that Rekha died a suicidal death by

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jumping into the well. P.M. report (Exh.17) reveals the cause of death as "drowning".

At this juncture, it would be worthwhile to note that the accused has been acquitted of

the offence punishable u/s 306 and 506 of the IPC.

8. So far as the allegations of assault by the accused on deceased-Rekha

are concerned, the prosecution relied upon the testimony of PW3-Venubai. According

to Venubai (PW3) on 21.5.1998 at about 9.00 am. When she was present in her

house, he heard some commotion in the house, therefore, she came out and saw that

a quarrel was going on between Rekha and the accused. The accused was beating

Rekha by fists, kicks and also by means of footwear. The accused said to Rekha as

to why she used to talk with Prakash Khandarkar. PW3 stated that at the relevant time

the accused was residing with Prakash as his wedded wife. The accused suspected

that there was illicit relationship between deceased Rekha and Prakash and on that

count, accused assaulted Rekha. PW3 then interfered in the quarrel which was going

on between deceased and accused and separated them from each other. Thereafter

Rekha returned to her house and accused also went to her house. PW3 also returned

to her house. PW3 stated that at about 1.30 pm, the parents of Rekha came to her

house. At that time, she narrated the incident to the parents of Rekha. The parents of

Rekha searched Rekha at the houses of their near relatives however she was not

traced out and, on the next day, the dead body of Rekha was found in the well of one

Madhukar Choudhari.

9. The testimony of Venubai (PW 3) is well-supported by the testimony of

PW5-Rajkanya Wakode. PW5 stated that on the day of the incident that there was

CRI.APPEAL.768.03

quarrel between Rekha and the accused. The accused was abusing Rekha in a filthy

language saying that Rekha had illicit relationship with the husband of the accused.

No doubt, the testimony of PW3-Venubai as well as PW5-Rajkanya is not shaken in

the cross-examination.

10. So far as the testimony of PW1-Shalikram is concerned, according to

PW1 when he returned home with his wife after finishing his work in the field at about

1.30 pm, he came to know from Venubai (PW3) that there was a quarrel between the

accused and his daughter Rekha and accused mercilessly beat Rekha by kicks, fist

blows and footwear and the accused said to Rekha that she was having illicit

relationship with her husband. PW1 then made enquiry about his daughter and he

came to know that she was missing form the house. PW1 made search of Rekha in

the village, however, in vain in as much as she was not traced out. PW1 stated that on

the same day, he proceeded to the Police Station and informed the police about the

incident. On the next day, he found the dead body of Rekha in a well belonging to

one Madhukar Choudhari. PW1-Shalikram stated that he lodged his complaint against

the accused. According to PW1, he reported the incident to the police on 21.5.1998

itself.

11. On careful scrutiny of the testimony of all the witnesses, it is noticed

that the complainant had reported the matter to the police on 21.5.1998. However there

is no such complaint placed on record by the prosecution. It is the specific case of the

prosecution, as reflected from the testimony of PW 4-Madhukar that on 22 nd May

1998, one Vinayakrao Choudhari has given his oral report in respect of a girl namely,

CRI.APPEAL.768.03

Rekha, and about finding her dead body in the well of Madhukar Choudhari.

Accordingly, Marg No. 19/1998 was registered u/s 174 of Cr.P.C. It is thus clear that

there was a simple missing complaint and report about the accidental death of

deceased Rekha recorded in the Police Station and accordingly an accidental death

was registered.

12. According to PW1 he had lodged the complaint (Exh.21) on 7.6.1998 i.e.

at belated stage. The said complaint reveals that as the complainant was mentally

disturbed and was not knowing the exact the reason of the quarrel, he could not report

the incident to the police. Thus, the complaint (Exh.21) which is a contemporary

document, reveals the explanation forwarded by the complainant while lodging his

complaint (Exh. 21), which is not convincing. There is no satisfactory explanation on

record as to why the complainant kept mum for sixteen days and did not report the

alleged incident of assault to the police. There is no other complaint on record.

Significantly, in the evidence before the Court, PW1-Shalikram has not given any

explanation for delay in lodging his complainant (Exh.21). Thus, there is delay of about

16 days in lodging the complaint by PW1. Similarly, the statements of the witnesses

were recorded by the police four months after the incident. According to Venubai (PW3)

her statement was recorded on 1.10.1998, whereas the statement of PW4-Madhukar

was recorded on 28.9.1998. Thus, the statements of the witnesses were recorded at

the belated stage. The testimony of PW4-Madhukar makes amply clear that the

complainant never attended the Police Station on 21.5.1998 and the report was lodged

by one Vinarayakrao Choudhari, which was about accidental death of Rekha, is not

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placed before the court and even Vinayakrao is not examined by the prosecution in

that regard. The case put forth by the prosecution appears to be afterthought.

12. Thus, on going through the entire evidence on record it is noticed that

the prosecution has miserably failed to prove its case beyond reasonable doubt. The

learned trial Judge has failed to consider the above-referred aspect and erroneously

convicted the accused. The judgment and order passed by the learned trial Judge

therefore, needs to be quashed and set aside. Hence the order.

                                          ORDER

i)        Criminal Appeal No.768/2003 is allowed.

ii)       The judgment and order dated 29.11.2003 in Sessions Trial No.186/1998

delivered by the learned 3rd Ad-hoc Additional Sessions Judge, is hereby set aside.

Iii) The appellant/accused is acquitted of the offence punishable under section 323

of the IPC.

iv)       Her bail bonds shall stand cancelled.

                                                      JUDGE

sahare