The State Of Maharashtra vs Pandurang Malhari Kagale And Ors
2021 Latest Caselaw 17584 Bom

Sherla V.


                                                              5_APEAL.173.2003 (J).doc


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CRIMINAL APPELLATE SIDE

                           CRIMINAL APPEAL NO.173 OF 2003

            State of Maharashtra                                     ... Appellant
                       Vs.
            1. Pandurang Malhari Kagale
            2. Malhari Sakharam Kagale
               (Appeal abated against Resp. No.2)
            3. Krishnabai Malhari Kagale
                                                                ... Respondents
            4. Sau. Shakuntala Babu Lamdade

            all residents of Miraj, Taluka Miraj, District
            Sangli



            Mr.V.B. Konde-Deshmukh, APP, for the Appellant - State
            None for Respondent Nos.1, 3 & 4

                                      CORAM: S.S. SHINDE &
                                             SANDIPKUMAR C. MORE, JJ.

             JUDGEMENT RESERVED ON: OCTOBER 22, 2021
            JUDGEMENT DELIVERED ON: DECEMBER 17, 2021

            JUDGEMENT (PER S.S. SHINDE, J.):

1. This Criminal Appeal is preferred by the State of

Maharashtra challenging the judgement and order dated

7th September, 2002 in Sessions Case No.49 of 1999 passed by

the learned II Adhoc Additional Sessions Judge, Sangli at Sangli,

whereby the respondents - accused were acquitted of the charges

under sections 498A, 304B read with section 34 of the Indian

5_APEAL.173.2003 (J).doc

Penal Code.

2. The prosecution case in brief is as under:

The complainant, namely, Kasappa Mali, is the father of the

deceased-Rukmini. Accused No.1 - Pandurang was the husband

of Rukmini. Accused No.2, who has expired, was the father of

accused No.2. Accused No.3 is the mother of accused No.1 and

accused No.4 is the sister of accused No.1. Rukmini died on

18.12.1998, after four years of her marriage with accused No.1.

It is the case of the prosecution that, about six months after

the marriage, the accused started ill treating the deceased on the

grounds that she was unable to cook properly and also that her

conduct was not good. They used to beat the deceased on said

counts. They used to torture the deceased by asking her to bring

money and gold from her parents. These facts were narrated by

the deceased to her father as well as her uncle, namely, Mhalsab,

whenever she used to meet them at Sangli. The complainant as

also his brother tried to pursue the accused not to ill treat the

deceased but the ill treatment continued. Therefore, the brother of

the deceased took her to their parents'

house at Thane. Thereafter, pursuant to the requests

5_APEAL.173.2003 (J).doc

and intervention of the relatives of the accused that the accused

will not ill treat the deceased, the complainant and his brother sent

the deceased back to the accused. At that time, the accused had

also addressed a letter to the Police Inspector, City Police Station,

Miraj, stating that they will not ill treat the deceased. Thereafter,

on 18th December, 1998, the complainant got information that

Rukmini had died. On these allegations, a complaint was lodged

against the accused with Miraj City Police Station, Miraj bearing

C.R. No.241 of 1998. During the course of investigation, the

accused came to be arrested and on completion of investigation,

chargesheet came to be filed against them before the learned

JMFC, Miraj. The case was then committed to Court of Sessions,

Miraj, who after framing the charge and completion of trial,

acquitted all the accused under sections 498A, 304B read with

section 34 of the Indian Penal Code. Hence, this Appeal.

3. At the outset, it needs to be mentioned that the Appeal has

already abated against Respondent No.2 - Malhari Sakharam

Kagale, vide order dated 21st January, 2020.

4. Mr.V.B. Konde-Deshmukh, the learned APP appearing for

the Appellant - State, has assailed the impugned judgment and

5_APEAL.173.2003 (J).doc

order of the learned Sessions Judge on the following grounds. He

submitted that the death of Rukmini occurred within 7 years from

the date of marriage. Therefore, presumption under section 113-B

of the Indian Evidence Act would arise. The prosecution witnesses

while deposing before the Court have made categorical statement

that the respondents herein used to harass and give ill treatment

to Rukmini. They have also stated that there was unlawful demand

from the accused. Since Rukmini died in the house of the

accused, the accused were obliged to give explanation since the

facts about the death of Rukmini was within the special knowledge

of the accused.

5. Although Vakalatnama for Respondents is filed by advocate

Ashok J. Chaugule, the learned Counsel is absent.

6. We have given due consideration to the rival submissions,

with the able assistance of the learned APP appearing for the

Appellant. Perused the notes of evidence and also the other

material placed on record. The trial Court framed the charge

against the respondents. The first charge was that the

respondents in furtherance of their common intention subjected

Rukmini physically and mentally on the count that her behaviour

5_APEAL.173.2003 (J).doc

was not proper, she could not work properly in the house and did

not meet the demand of the accused to bring 1 tola gold from her

maternal house. Due to harassment and cruelty on the part of the

respondents, Rukmini died. The respondents have committed an

offence punishable under section 498A read with section 34 of the

Indian Penal Code.

7. The second charge was that on 18.12.1998 at or about

1900 hrs, at Miraj, the death of Rukmini had occurred otherwise

than under normal circumstances within 7 years of her marriage.

She was subjected to mental and physical cruelty and harassment

by the accused in connection with the demand of 1 tola golden

ornaments from her parents and on other counts and thereby the

respondents have committed offence punishable under section

304B read with section 34 of the Indian Penal Code.

8. In order to appreciate the allegation of harassment and ill-

treatment of Rukmini by the respondents on account of not

performing domestic work and bringing golden ornaments as

alleged by the prosecution witnesses, it would be appropriate to

discuss the evidence of the prosecution witnesses.

5_APEAL.173.2003 (J).doc

9. The prosecution had examined Kasappa Mali as PW1, who

is the father of the deceased Rukmini. In his deposition before the

Court, he stated that he has six daughters and Rukmini was elder

and got married to accused No.1. Initially, for six months, the

accused treated her properly, however, thereafter, they started

harassing and giving ill treatment to her. On her failure to fulfill

their unlawful demands to bring gold (Bormal) weighing 1 tola, the

accused persons used to ask her to give divorce to Respondent

No.1. This witness has, in detail, stated about the alleged

harassment and ill treatment given to Rukmini by the respondents.

He stated in his examination-in-chief that after some days of

marriage and when Rukmini left the matrimonial house and stayed

at Thane with the brother of PW1, the accused persons wrote one

letter expressing regret and requesting to send back Rukmini to

matrimonial home with assurance that they will treat the daughter

of PW1 properly. He further stated that his daughter Rukmini died

on 18.12.1998 at Miraj in Government hospital. One Ganpatrao

Mali intimated his brother at Jat about the death of his daughter

and he came to know about it from his brother. It is alleged by him

that he met accused No.1 on way to Sangli and accused No.1 told

him that his daughter died due to fever. He further stated that on

5_APEAL.173.2003 (J).doc

receiving the dead body of his daughter on 19.12.1998 at about

12pm to 1 pm, he registered the First Information Report with the

concerned police station.

10. It is important to note that during the cross-examination, a

suggestion was given to this witness by the defence Counsel that

he (PW1) used to visit Rukmini for supplying her medicines since

she was suffering from some mental ailment and was being

treated for her mental weakness. Further suggestion was given

that PW1 took Rukmini to school of mentally retarded persons at

Miraj. This suggestion was denied by PW1. He also denied the

suggestion that his brother took Rukmini to Thane for referring her

to mental hospital at Thane. He admitted that his daughter stayed

at Thane for four months and then, came back to Miraj.

11. The prosecution examined one Shankar Dhondiba Lamdade

as PW2. In his deposition before the Court, PW2 stated that

accused No.1 and the deceased Rukmini pulled down marital life

properly for about 1 to 2 years and thereafter, disputes started

between accused Nos.1 and 3 and Rukmini on account of cooking

that she was not cooking well. The accused used to beat Rukmini

on that count. In his deposition, he has not stated about unlawful

5_APEAL.173.2003 (J).doc

demand of 1 tola gold by the accused persons from Rukmini. He

stated that he scribed a letter to the uncle of Rukmini at Thane

which was received from accused No.2. He further stated that the

letter was scribed by Pandu, son of accused No.2 and after

receiving the said letter and due deliberations with PW1, Rukmini

was brought to the house of the accused by her father.

During his cross-examination, PW2 stated that Rukmini was

strongly built, however, she was mentally weak. He further stated

that it is true to say that Rukmini was taking treatment at her

matrimonial house as well as at the house of the accused but he

did not know her ailment.

It can thus safely be gathered from the evidence of PW2 that

the alleged ill treatment and harassment of Rukmini started at the

hands of the accused after 1 to 2 years from the date of marriage

and Rukmini was suffering from some mental weakness and for

that, at the relevant time, she was being treated at Miraj. It has

also come in the evidence of PW2 that the said alleged letter was

signed by him. At this stage, it is relevant to mention that the

prosecution failed to bring on record cogent evidence to show that

the said alleged letter was written by the accused.

5_APEAL.173.2003 (J).doc

12. The prosecution examined Mahadevi Mahadeo Yesu Mali as

PW3. It appears that the deceased Rukmini was residing in her

neighbourhood. She stated that the accused treated Rukmini

properly for six months and on account of her non-performance of

work in the house so also in the field, the accused started ill

treating her. She tried to intervene in the dispute, however, she

could not succeed to resolve the dispute. She stated that Rukmini

went to reside with her uncle at Thane. A suggestion was given to

her in cross-examination that on account of some dispute between

the family of the accused and her family, she had deposed against

the accused. This has been denied by her, however, the fact

remains that she stated about visit of Rukmini to Thane.

13. The prosecution examined Ganapati Appa Mali as PW4. His

evidence is hearsay inasmuch as he stated that his son-in-law

used to tell him about the ill-treatment to Rukmini by the accused.

The evidence of PW4 is not important for the prosecution case.

14. The prosecution examined Dr.Deepak Shankar Amale, who

had performed postmortem on the dead body of Rukmini. He

stated that after studying the reports, they formed final opinion as

5_APEAL.173.2003 (J).doc

to the cause of death and in their opinion, the death has been

caused due to poisoning due to Organo Phosphorous compound

insecticide "Dimetheate (Rogor)".

However, in his cross-examination, PW5 stated that the

probable time and death is not mentioned in the postmortem report

(exhibit 34).

From his entire evidence, it is not clear that as to when the

death of Rukmini had occurred and he has not stated any injury

mark on Rukmini which would suggest overt acts on the part of the

accused.

15. PW7 Subhash Babu Kadam was the Investigating Officer,

who had stated in detail about the manner in which the

investigation was carried out.

16. If the evidence of the prosecution witnesses is considered in

its entirety, firstly, they are not consistent on the beginning point of

the alleged harassment or ill-treatment to Rukmini at the hands of

the respondents - accused. Secondly, it is deposed by PW2 that

Rukmini was being treated for mental illness, however, the other

witnesses are not consistent. There is a reasonable delay in

5_APEAL.173.2003 (J).doc

lodging the First Information Report which remains to be

unexplained by the prosecution. If the entire prosecution case is

viewed in the light of the evidence collected, it is difficult to

understand as to why accused No.4 Shakuntala Babu Lamdade

was added as an accused. At the relevant time, accused No.4

was already married and there was no any material to suggest any

overt act on behalf of accused No.4. We have carefully perused

the finding recorded by the trial Court. In our opinion, the

prosecution has utterly failed to bring on record positive acts on

the part of the accused within the proximate time and date of death

of Rukmini indicating their involvement in the alleged harassment

and ill treatment to Rukmini on account of non-fulfillment of

unlawful demand so as to attract the ingredients of sections 304B

and 306 of the Indian Penal Code. In that view of the matter, the

question of presumption under section 113B of the Evidence Act

would not arise. The prosecution was obliged to show specific

acts on behalf of the accused within the proximate date and time

of the alleged incident which would suggest the involvement of the

respondent accused. On the contrary, the prosecution witnesses,

in particular, PW2 had stated that Rukmini was suffering from

mental weakness. Therefore, the reasonable inference that can

5_APEAL.173.2003 (J).doc

be drawn is that she might have consumed poison on her own. In

our considered view, the findings recorded by the trial Court are

not perverse and those are in consonance with the evidence

brought on record. The view taken by the trial Court is a plausible

view in the light of the evidence brought on record. Even if

another view is possible, is no ground to interfere in the order of

acquittal. Hence, no case is made out to interfere with the finding

of acquittal.

17. For the reasons aforesaid, we are unable to persuade

ourselves to reverse the findings of acquittal and allow the appeal.

As a corollary, the Appeal shall fail and accordingly, the same

stands dismissed.

                 (SANDIPKUMAR C. MORE, J.)                  (S.S. SHINDE, J.)




              Digitally signed by
              VISHWANATH
VISHWANATH    SATYANARAYANA
SATYANARAYANA SHERLA
SHERLA
              Date: 2021.12.17
              15:08:14 +0530