Bombay High Court
Rameshwar @ Ramesh S/O Dattu ... vs The State Of Maharashtra on 8 June, 2021
Bench: V. V. Kankanwadi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.997 OF 2021
IN
CRIMINAL APPEAL NO.233 OF 2021
1. Rameshwar @ Ramesh s/o Dattu
Pachpute and Ors. = APPLICANTS
VERSUS
The State of Maharashtra = RESPONDENT/S
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Mr.JV Deshpande and Mr. SN Dudhate, Advocates for
Applicant/s;
Mr.SB Narwade,APP for Respondent-State.
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CORAM : SMT.VIBHA KANKANWADI,J.
RESERVED ON : 06/05/2021
PRONOUNCED ON : 08/06/2021
PER COURT :-
1. Heard Advocates and learned APP,
appearing for the respective parties.
2. In this Criminal Application, the
applicants pray for suspension of substantive
sentences and releasing them on bail during
pendency and final hearing of the Criminal Appeal.
3. The applicants are original accused Nos.1
to 3 in Sessions Case No.29/2014, who have been
convicted and sentenced by learned Additional
Sessions Judge, Aurangabad, vide judgment and order
dated 9.4.2021, thus -
a) For the offence punishable under
Section 304(B) of IPC and sentenced to
suffer R.I. for ten years and to pay fine
of Rs.10,000/-, in default, S.I. for two
months each;
b) For the offence punishable under
Section 306 of IPC and sentenced to
suffer R.I. for seven years and to pay
fine of Rs.5,000/-, in default, S.I. for
one month each;
c) For the offence punishable under
Section 498A of IPC and sentenced to
suffer R.I. for one year and to pay fine
of Rs.5,000/-, in default, S.I. for one
month each; and
d) For the offence punishable under
Sections 3 and 4 of Dowry Prohibition Act
and sentenced to suffer R.I. for five
years and to pay fine of Rs.15,000/-, in
default, S.I. for two months.
. All the sentences are ordered to
run concurrently.
4. It is vehemently submitted on behalf of
the applicants that the applicants were on bail
throughout the trial. The witnesses admitted about
no demand of dowry and there was no agreement in
respect of it, which is material ingredient for the
offence under Section 304(B) of IPC. The demand,
as alleged and stated by PW 1 - Nivrutti, was not
relating to any demand for dowry. There is no
evidence by PW 1 that soon before death of
deceased Rani, she was subjected to cruelty. On
the contrary, he has no where disclosed about the
specific incident of cruelty or harassment
subjected to the deceased. The testimonies of PW
Nos.1 to 3 are inconsistent to each other in
respect of ill-treatment and alleged demand. In
absence of any ill-treatment, presumption under
Section 113-B of the Indian Evidence Act, is not
applicable as to the evidence brought by the
prosecution. There is no cogent evidence to prove
the ill-treatment to the deceased and, therefore,
the presumption is not applicable. The learned
Sessions Judge has misread and misconstrued the
evidence brought on record and erred in convicting
and sentencing the applicants. The prosecution has
utterly failed to prove the charges levelled
against the applicant/s by a cogent and reliable
evidence on record and the conviction is not
sustainable in law and facts of the case. The
learned Advocate further submits that the appeal
involves other legal points/issues, which the
applicants/appellants intend to agitate and address
them at the time of final hearing of the appeal and
they have every hope of success in the appeal.
Consequently, the applicants pray for releasing
them on bail by suspending the substantive sentence
awarded by the learned Sessions Judge on such terms
and conditions as this Court may deem fit and
proper.
5. Per contra, learned APP strongly resisted
the application and supported the reasons assigned
by the learned Sessions Judge while convicting and
imposing the sentences against the applicants. The
prosecution duly proved that soon before the death
of deceased Rani, she was subjected to the cruelty
for demand of dowry. The learned Sessions Judge has
properly scanned and scrutinized the evidence
brought on record and no interference is required.
It is, therefore, submitted that the application
being sans merit, deserves to be dismissed and it
be dismissed accordingly.
6. At the outset, it is to be noted that, as
aforesaid, the present applicants are the original
accused Nos.1 to 3, who are the husband and
parents-in-law of deceased Rani. Rani and present
applicant No.1 - Rameshwar got married on 6.5.2013
and Rani died in unnatural circumstance on
13.9.2013. That means, within four months after her
marriage. It is to be noted that her dead body was
found in the well. It has come in the evidence of
PW 1 - Nivrutti, who is the informant/father of the
deceased, that applicant No.1 used to stay at
Aurangabad in connection with his job. However,
Rani was staying with her parents-in-law, i.e.
applicant Nos.2 and 3 at Jalgaon Mete Tq. Phulambri
District Aurangabad. It is not his case that
applicant No.1 used to go to and fro daily from
Jalgaon Mete for his work to Aurangabad. But then,
he says that at the time of Nagpanchami festival,
when she had come to the informant's house, it was
told by her that applicant No.1 is ready to take
her to Aurangabad, but applicant No.2 - father-in-
law was not ready and he has evil-eye on her.
Important point to be noted is that the informant
has not expressed as to what course of action he
had taken when such kind of disclosure was made by
his daughter to him. Thereafter, he says that the
accused persons were demanding an amount of
Rs.2,00,000/- for opening of a cloth shop. He had
promised that he would give the amount after
harvesting of cotton crop. This promise was given
around festival of Rakshabandhan and thereafter
the informant had given a phone call to the
deceased on 12.9.2013. He had corrected it later
on that deceased Rani had given call to him, by
concealing the fact from her husband, and then
informed him about the alleged harassment to her.
This is the evidence by the informant. PW 2 -
Bhausaheb is his brother and also appears that he
was also taken as a panch to the spot panchanama.
He says that the suicide note was recovered from
the edge of the well and it was only stated in the
said suicide note that father should pardon her
(दादा मला माफ करा. तुमची लाडकी रानी). The question that
arises, as to when she was able to write and she
was in fact writing, why she could not have
disclosed all the facts in the said suicide note
itself. Thereafter there are other witnesses, who
are the relatives of the deceased, who have been
examined and they have stated on the same line as
to how the deceased was allegedly harassed.
However, there appears to be improvements made by
them in their testimonies.
7. From the impugned judgment, it appears
that the presumption, under Section 113-B of the
Indian Evidence Act, has been invoked by the
learned Trial Judge. Prima facie, it can be said
that unless the harassment would have been proved
beyond reasonable doubt, question of raising the
presumption will not arise. Post mortem report
mentions six injuries on the person of the
deceased. In the cross-examination, the Medical
Officer (PW 6) Dr.Ninal has admitted that the
injuries are possible by fall in the water and may
also occur due to the accident. Therefore, with
this kind of evidence, which has to be revisited,
when the appeal is admitted, till the appeal is
finally disposed of, it can be said that a case is
definitely made out for releasing the applicants on
bail by suspending the substantive sentence.
Further, in view of the decision in the case of
Kiran Kumar Vs. State of M.P. - (2001) 9 SCC 211,
benefit will have to be extended to the applicants-
appellants when they have demonstrated that the
material and significant points raised by them in
the appeal are required to be considered at the
time of final hearing of the appeal. Further, the
applicants were on bail during the trial, they have
not misused their liberty. In view of the matter,
it can be said that a case is definitely made out
for releasing the applicants on bail by suspending
the substantive sentence during pendency and final
disposal of the appeal. Hence, following order,-
ORDER
i. The Criminal Application stands
allowed.
ii. The substantive sentence imposed
on the applicants by learned Sessions
Judge, Aurangabad, in Sessions Case No.
29/2014, vide judgment and order dated
9.4.2021, is hereby suspended till
hearing and final disposal of the appeal.
iii. The applicants - 1) Rameshwar @
Ramesh s/o Dattu Pachpute; 2) Dattu s/o
Rama Pachpute; and 3) Sau Bhimabai Dattu
Pachpute, be released on their executing
PR and SB of Rs.50,000/ (Rupees fifteen
thousand) with two sureties of
Rs.25,000/- each.
iv. The applicants shall not commit
any criminal activity.
v. The applicants shall remain
present before the learned Trial Judge
once in six months, till final hearing
and disposal of the appeal, commencing
from the date they tender bail papers
and, thereafter, the Trial Judge to fix
dates for their subsequent appearances.
vi. In case of two consecutive
defaults on the part of the applicants to
remain present before the Sessions Court,
the Sessions Court to inform this Court
about the same and in that eventuality,
the prosecution would be at liberty to
file an application for cancellation of
the bail granted to the applicants.
vii. Bail before the Sessions Court.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
