Revan Sudam Kanhere And Anr vs The State Of Maharashtra Adn Anr
2022 Latest Caselaw 8498 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.547 OF 2018

1. Revan Sudam Kanhere, &
2. Rajabai Sudam Kanhere.               ..... Appellants
      Versus
The State of Maharashtra
and another                        .... Respondents
                               -----
Mr. Jaydeep D. Mane, Advocate for the Appellants.
Smt. Veera Shinde, APP for the Respondent No.1-State.
                               -----

                                 CORAM :SARANG V. KOTWAL, J.

                                 DATE     : 29th AUGUST, 2022
ORAL JUDGMENT :

1. The appellants have challenged the judgment and

order dated 31.3.2018 passed by the Additional Sessions Judge,

Solapur in Sessions Case No.305/2018. Both the appellants were

convicted for commission of the offence punishable under Section

306 read with 34 of the Indian Penal Code. They were sentenced

to suffer RI for ten years each and to pay fine of Rs.1,000/- each

and in default to suffer further RI for three months each. They

were also convicted for commission of the offence punishable

under Section 498-A read with 34 of IPC and were sentenced to

suffer RI for three years each and to pay fine of Rs.500/- each and 1 of 22

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in default of payment of fine to suffer RI for 15 days each. Both

the sentences were directed to run concurrently. They were given

set off for the period undergone as under-trial prisoners under

Section 428 of Cr.P.C.. The appellant No.1 was directed to pay

compensation of Rs.1 Lakh to the parents of the deceased Rekha

under Section 357(3) of Cr.P.C. within a period of three months

from the date of the judgment and order. Learned trial Judge

directed that if the same was not tendered in the stipulated time,

the same was to be recovered in accordance with law after the

appeal period was over and if there was no stay by this Court.

respectively. There was one more accused i.e. accused No.2

Audumbar Kanhere. He was brother of accused No.1 and son of

accused No.3. He was acquitted from both these charges.

3. Heard Shri Jaydeep Mane, learned counsel for the

appellants and Smt. Veera Shinde, learned APP for the State.

4. The prosecution case is that the appellant No.1 got

married with Rekha on 15.6.2012. There was a demand of

Rs.50,000/- initially which Rekha's parents somehow managed to

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pay. Even after that there was demand of Rs.50,000/- for digging

a well. On both these counts, Rekha was continuously harassed

by both the appellants and other family members. On 21.5.2014,

the appellant No.1 left Rekha at her parental house. There was

continuous demand of Rs.50,000/-. Ultimately, Rekha committed

suicide by consuming poison on 26.5.2014. She was taken to

hospital but efforts to save her were in vain. She died in the

hospital. The FIR was lodged on 5.6.2014 at Kurduwadi police

station vide C.R. No.81/2014. The appellants were arrested on

6.6.2014. Statements of witnesses were recorded. After death of

the deceased immediately postmortem was conducted, viscera was

preserved and it was sent for chemical analysis. Opinion regarding

cause of death was reserved at the time of postmortem

examination. The C.A. report was received. However, no poison

was detected in the viscera. After that final opinion of the doctor

was sought. It was opined that she had died due to poison. The

investigation was completed. The charge-sheet was filed. The

case was committed to the Court of Sessions.

5. During trial, the prosecution examined eight witnesses

including the mother, uncle and a neighbour of the deceased, 3 of 22 :4: 201.apeal-547-18.odt

pancha for spot panchnama, the investigating officers, the medical

officers conducting the postmortem examination and one who had

treated the deceased. The defence of the appellants was of total

denial. Learned Judge after considering the evidence on record

and statements of the appellants recorded under Section 313 of

Cr.P.C. and after hearing the arguments, was satisfied that the

offence was committed. Therefore, he convicted and sentenced

the appellants as mentioned earlier.

6. PW-1 Alka Garad was the mother of deceased Rekha.

She had lodged the FIR. She has deposed that Rekha had got

married with the appellant No.1 on 15.6.2012. She was residing

with the accused No.1, 2 & 3 in her matrimonial house. After

eight months from the marriage, the appellants' family shifted to a

village known as Masle Chaudhari. After that, the appellant No.2

and Rekha came to PW-1's village. Rekha told her that the

accused were harassing her and were demanding Rs.50,000/- for

construction of their house. PW-1 and her family told the

appellant No.2 that their financial condition was not good and

that they should not harass Rekha. Again after ten days, Rekha

and the appellant No.2 came to PW-1's house. Rekha repeated the 4 of 22 :5: 201.apeal-547-18.odt

demand made by her in-laws. She told her that she was being

harassed. Therefore, PW-1's family took loan of Rs.50,000/- from

one Sudhir Garad and gave that amount to the appellant No.2.

After about eight to nine months from that, the accused again

started demanding amount of Rs.50,000/- for digging well. They

used to harass her by starving, abusing and beating. Rekha told

about the harassment by making a phone call. After that, PW-1's

family told the accused that their financial condition was not

sound. Their previous loan was not repaid. But there was no

change in their attitude. On 21.5.2014, the appellant No.1

brought Rekha to PW-1's house. He told them that he would not

take back Rekha unless the amount of Rs.50,000/- was paid. He

then went back alone. Rekha was left at her parental house. After

that the appellant No.1 made a phone call on PW-1's sister-in-law's

phone. That time, Rekha had a conversation with the appellant

No.1 who told her that he would take her back for cohabitation

only if the amount was arranged. Rekha told PW-1 about this

conversation. Again on 25.5.2014 he made a phone call and

asked Rekha whether Rekha's parents had arranged for

Rs.50,000/-. He again repeated his resolve not to take her back

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until the said amount was paid to her. Rekha got disturbed. On

the next day, she went to a field of one Sakhubai Nalavade to

wash her clothes near a well. She had gone there with her friends

Bharti and Bhakti. After some time, Rekha became unconscious.

Bharti and Bhakti rushed to PW-1's house and informed them

about it. PW-1 and others went to that spot. They took Rekha to

hospital. PW-1 deposed that there was smell of poisonous

medicine from Rekha's mouth. During treatment in the hospital,

Rekha died at about 3.00 p.m.. The accused did not come to the

hospital or for funeral. The medical officer informed the police

about Rekha's death. PW-1 has specifically deposed that as her

family's state of mind was not proper, she lodged her FIR

afterwards. The FIR was lodged on 5.6.2014. It is produced on

record at Exhibit-39.

In the cross-examination, she deposed that Rekha was

educated upto 7th standard. Their village i.e. Laul village was a big

village in Madha Taluka. There was a police patil and sarpanch in

their village. The police station was half an hour away from

Kadam hospital where Rekha was treated. During her lifetime,

Rekha or PW-1's family had not lodged any complaint in the police 6 of 22 :7: 201.apeal-547-18.odt

station. PW-1 denied the suggestion that Masle Chaudhari was a

small village, and that the deceased always stayed at her parental

house. She further deposed that after the doctor had informed the

police, they enquired with her and had recorded her statement.

She admitted that the accused quarreled with her family as the

funeral was performed before their arrival. She volunteered that

since the accused did not come by 11.00 p.m., they waited for the

accused and thereafter they performed the funeral. She further

deposed that on 10th day from the death, at the time of performing

the rituals at Pandharpur, there was a quarrel between the accused

and PW-1's family and after that PW-1 came to Kurduwadi and

lodged the FIR.

The FIR lodged on 5.6.2014 corroborates the

deposition of PW-1.

7. PW-2 Namdeo Nalavade was a pancha for spot

panchnama. He has produced the spot panchnama at Exhibit-44.

It mentions that the incident of consumption of poison took place

in a hut in the land of Namdeo Nalavade that is the spot pancha

himself.

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8. PW-3 Sunil Garad was the paternal uncle of Rekha. He

has corroborated the version of PW-1. He had gone to the house

of accused to make them see reason. He was was a close relative

and he has deposed in the same manner as deposed by PW-1.

9. PW-5 Shrikant Kadam was a neighbour of PW-1. He

was told by Rekha about the demand made by the accused and

the harassment caused to her. He has also corroborated the

evidence of PW-1 and PW-2. He has deposed that on 21.5.2014

when he was at home he saw that the appellant No.1 had brought

Rekha to the house of PW-1. At that time he went to their house

and Rekha told him that her in-laws were harassing her on

demand of Rs.50,000/- and unless the amount was paid the

accused would not allow her to go back to her matrimonial house

for cohabitation.

10. PW-7 API Ankush Pawar was the first investigating

officer. He was informed that Rekha was admitted to Kadam

hospital, Kurduwadi and that she had died there. PW-7 then

conducted the inquest panchnama. He recorded the statements of

two witnesses. He recorded spot panchnama on 6.6.2014. He

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arrested both the appellants. He had arranged to send the dead

body for postmortem examination, he collected the postmortem

notes.

11. PW-6 PSI Dnyandeo Devkate took charge of the

investigation on 26.7.2014. He deposed that viscera was sent to

the chemical analyzer's office at Pune on 25.7.2014. PW-6 had

then filed the charge-sheet after completion of the investigation.

12. PW-4 Dr. Dineshkumar Kadam is an important witness.

Rekha was brought to his hospital on 26.5.2014. He observed that

her vital parameters were bad and inspite of his best efforts Rekha

could not survive. She died at about 3.00 p.m. on 26.5.2014. He

has deposed that she was brought with the history of having

consumed foret granules. When she was admitted to the hospital,

he informed the police and even after the death he again informed

the police. Significantly he has deposed that the treatment was

given according to symptoms of poisoning. In his prima facie

opinion the death was caused by organo phosphorous poisoning.

He has further deposed that if the poison is absorbed in blood, the

same may not be detected in viscera.

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In the cross-examination, he admitted that there was

no mention in the findings recorded by him that there was smell

of organo phosphorous poisoning from Rekha's mouth. He

produced the medical papers on record at Exhibit-62. As deposed

by him, Rekha was admitted to his hospital at 2.15 p.m. on

26.5.2014 and the history was given by her relatives that Rekha

had eaten foret granules about one hour before admission to the

hospital.

The postmortem notes were produced on record at

Exhibit-88. The defence had admitted that document. It was

mentioned in the postmortem notes that the opinion was reserved

and viscera was preserved for chemical analysis. The significant

feature of the postmortem notes was description of both the lungs.

It was mentioned that they were severely congested and

oedematous. Advance death certificate dated 26.5.2014 was

produced on record at Exhibit-84 This document was also

admitted by the defence. In that certificate also it was mentioned

that the opinion was reserved and the viscera was preserved for

chemical analysis. After leading this evidence, the prosecution

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had closed its case by tendering a pursis on 7.12.2017. The

appellants' statements under Section 313 of Cr.P.C. were recorded.

13. But after that, on 28.3.2018, PW-8 Dr. Santosh Adgale

was examined by the prosecution because the prosecution wanted

to produce the certificate regarding cause of death of the deceased

Rekha. PW-8 deposed that in his view the death was caused due to

severely congested lungs leading to respiratory failure and death.

In his opinion, this had happened because of the ingestion or

administration of poison or poison like substance. His final

opinion was produced on record at Exhibit-88A. He deposed that

he formulated this opinion after he had received the opinion of

chemical analyzer in respect of viscera. He was an important

witness but he was not cross-examined on behalf of the defence.

Only a suggestion was given to him that his opinion was

erroneous. He denied that suggestion.

14. After his evidence was led, additional statement of the

accused was recorded under Section 313 of Cr.P.C. on 28.3.2018

They were given an opportunity to answer the questions in respect

of evidence of PW-8. The appellant No.1 and appellant No.2 both

denied the evidence of PW-8 to be true. Learned Judge believed 11 of 22 : 12 : 201.apeal-547-18.odt

the evidence of the prosecution. He also relied on the evidence of

PW-8 to conclude that it was a case of suicide. He held that the

prosecution was able to prove the harassment caused to the

deceased Rekha, the involvement of both the appellants and then

convicted and sentenced both of them as mentioned earlier. He

however gave benefit of doubt to the original accused No.2 and

acquitted him because there were no specific allegations against

him compared to those against the present appellants.

15. Learned counsel for the appellants submitted that

there was unexplained delay of ten days in lodging the FIR. The

FIR was lodged only after the quarrel that had taken place at

Pandharpur after the 10th day ritual after the death. In the

meantime, there were no allegations of causing any harassment to

the deceased. The allegations of harassment are made only as an

afterthought and because of the quarrel between the two families.

The statements of PW-1 and her family members which were

recorded in the meantime were suppressed and the prosecution

has deliberately kept away that part of evidence and, therefore, an

adverse inference needs to be drawn against the prosecution.

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16. He further submitted that the prosecution has failed to

prove that it was a case of suicide. The viscera did not show

presence of any poison and, therefore, there was no proof that the

deceased had consumed poison and had committed suicide. The

deceased was staying with her parents on the date of incident and,

therefore, the appellants could not be held responsible for any

step taken by the deceased. The deceased did not like staying in

her matrimonial house which was in a village which was

comparatively much smaller than the village where here parents

were residing. Therefore, even if it is assumed that it was a case

of suicide it was not because of any harassment caused by the

appellants but it was because of her reluctance to stay in her

matrimonial house.

17. The two companions who had gone with the deceased

in the morning were not examined. Therefore, there is no cogent

evidence as to what exactly had happened in the hut in the field of

Namdeo Nalavade. The deceased was educated but she had not

left any suicide note. The prosecution examined only interested

witnesses. No independent witness was examined. He, therefore,

submitted that the prosecution has not proved its case beyond 13 of 22 : 14 : 201.apeal-547-18.odt

reasonable doubt and, therefore, benefit of doubt must go to the

appellant.

18. On the other hand, learned APP submitted that Rekha

had committed suicide within about two years from her marriage.

Therefore, under the provisions of Section 113-A of the Evidence

Act, presumption operated against the appellants because the

suicide was committed within a period of seven years from the

date of Rekha's marriage. The appellants have not rebutted this

presumption. She submitted that the medical evidence in the

form of PW-4 and PW-8 was sufficient to prove that Rekha had

committed suicide by consuming poison. It was not necessary that

in every case of poisoning, the poison must be detected in viscera.

In a given case though poison may not be detected, the expert's

opinion, as in the present case, carries more weight.

19. In the present case both the doctors had opined that

the death was due to poisoning and, therefore, the case of suicide

is clearly made out. She submitted that the evidence shows that

the deceased was continuously harassed for demand of

Rs.50,000/-. The demand was made on two occasions. On the

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first occasion, it was fulfilled but on the second occasion since the

demand was not fulfilled, she was left at her parental house. The

evidence shows that the husband had left her at parental house

and even after leaving her there he made telephonic calls

demanding money and telling her that she would not be taken

back until the amount was paid. All these instances of harassment

fall within the meaning of Section 498-A of IPC as well as under

Section 107 read with 306 of IPC and thus the prosecution case is

proved.

20. I have considered these submissions. First and

foremost, it is necessary to examine the prosecution evidence in

respect of the allegations of commission of suicide. Though it is

true that the chemical analyzer's report does not show any poison

in the viscera, some important features will have to be taken into

consideration. The record shows that the viscera was sent for

chemical analysis much belatedly i.e. on 25.7.2014. The viscera

was collected immediately on 26.5.2014 when the postmortem

was conducted. The viscera should have been sent for chemical

analysis immediately. Significantly the postmortem notes

recorded after the postmortem examination held on 26.5.2014 15 of 22 : 16 : 201.apeal-547-18.odt

had clearly noted that both the lungs were severely congested and

they were oedematous. This important aspect was taken into

consideration by PW-8 Dr. Adgale and based on this, his opinion

was that death was caused due to severely congested lungs

leading to respiratory failure and death. In his opinion it was due

to ingestion or administration of poison or poison like substance.

This opinion is unambiguous and categorical. The defence had

not cross-examined PW-8 in respect of this particular opinion

noted by him.

21. As far as PW-4 Dr. Kadam is concerned, he has also

deposed that prima facie death was caused by organo

phosphorous poisoning. He has explained that if the poison is

absorbed in blood, the same may not be detected in the viscera. It

is also mentioned in the medical papers that Rekha was brought to

his hospital and at that time the history was given by relatives that

she had eaten foret granules. She was given treatment based on

the symptoms of poisoning. This evidence leads to a safe

conclusion that the deceased had consumed poison and the death

was because of poisoning. Hence, the prosecution theory that it

was a case of suicide is sufficiently proved.

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22. As far as harassment caused to Rekha is concerned, the

prosecution has examined PW-1, PW-3 and PW-5. Their evidence

is consistent. All of them have stated that there was demand of

Rs.50,000/- on two separate occasions. On the first occasion, the

family of the deceased had raised Rs.50,000/- by taking loan.

Even thereafter demand of further Rs.50,000/- was made and the

harassment continued. There is nothing in their evidence to doubt

their veracity. PW-1 had explained as to why the FIR was lodged

on 5.6.2014. She has deposed that their mental state was not

good because of Rekha's death and therefore there was some

delay in lodging the FIR. This explanation does not seem to be

unreasonable. In any case, the burden was on the appellants to

rebut the presumption under Section 113-A of the Evidence Act as

submitted by learned APP. Therefore, the prosecution has

sufficiently established that both the appellants had committed the

offence punishable under Section 498-A of IPC. All these

witnesses were natural witnesses and,therefore, it was not

necessary to examine any other witness to support their versions.

The act of the appellants falls within the explanation (b) of

Section 498-A of IPC. Hence, the conviction of both the

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appellants under Section 498-A read with Section 34 of IPC is

properly recorded.

23. The next important question would be as to whether

both the appellants can be said to have abetted commission of

suicide as required under Section 306 read with Section 107 of

IPC. In that context, the prosecution case differs for appellant

No.1 and appellant No.2. Though there are common allegations

that the deceased was harassed for the demand of money by all

the accused, as far as the case of suicide is concerned that is

directly attributable to the events which had taken place in May,

2014. It is the specific prosecution case brought on record

through the evidence of mother of the deceased that on 21.5.2014

Rekha was brought to her parental house by only the appellant

No.1. He had told them that he would not take Rekha back until

Rs.50,000/- was paid. He then left Rekha and went away. He did

not listen to anybody from the PW-1's family. Even after that, the

appellant No.1 had phoned PW-1's sister-in-law and had

conversation with Rekha. There again, he told her that unless the

amount was arranged he would not take her back for

cohabitation. Rekha had told PW-1 about that conversation. Even 18 of 22 : 19 : 201.apeal-547-18.odt

thereafter on 25.5.2014 he made another phone call and asked

Rekha whether her parents had arranged for Rs.50,000/- and

again repeated his threat that Rekha would not be taken back for

cohabitation unless the amount was paid. After all this, Rekha got

disturbed and on the next day i.e. on 26.5.2014 she committed

suicide. There was continuous harassment and demand from

21.5.2014. Thus, there is a direct connection between the acts of

appellant No.1 and commission of suicide by Rekha. His acts

would fall within the meaning of Section 107 read with 306 of

IPC. Therefore, the prosecution has proved its case against the

appellant No.1 alone as far as conviction under Section 306 of IPC

is concerned. To that extent benefit of doubt can be given to

appellant No.2.

24. Considering this discussion, it is held that appellant

No.1 has committed the offence punishable under Section 498-A

read with 34 of IPC and also has committed the offence

punishable under Section 306 of IPC whereas appellant No.2 has

committed the offence punishable under Section 498-A read with

34 of IPC only. She is acquitted from the charges of commission of

offence punishable under Section 306 read with 34 of IPC.

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25. Learned counsel for the appellants submitted that both

the appellants were arrested on 6.6.2014. They were released on

bail on 12.8.2014. Thus they were in custody before conviction

for about two months and six days. They were convicted and

sentenced on 31.3.2018. The appellant No.2 was released on bail

after conviction on 28.9.2018. Thus, she had undergone

imprisonment of eight months and six days as of today. As far as

appellant No.1 is concerned, after his conviction on 31.3.2018 he

was taken into custody. Learned APP submitted that for a few

months he was on COVID-19 parole. The incident had taken place

in May, 2014. Thus, more than eight years have passed. There are

no allegations that either of the appellants have misused the

liberty when they were on bail during trial or even after their

conviction. They do not have any other criminal antecedent.

Therefore, taking overall view of the nature of offence committed

by them, the period undergone by the appellant No.2 in custody

till today will be sufficient substantive sentence. The sentence

imposed on both of them can be reduced. Reducing the sentence

of the appellant No.1 from ten years to four year will meet ends of

justice. The other portion of the operative part of the judgment of

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directing appellant No.1 to pay compensation of Rs.1 Lakh can be

retained. Hence, the following order :

:: O R D E R ::

i.       The appeal is partly allowed.

ii.      The appellant No.2 Rajabai Sudam Kanhere is acquitted from the

charges of commission of offence punishable under Section 306 read with 34 of IPC. The sentence for offence under this section is set aside.

iii. The appellant No.2 Rajabai Sudam Kanhere's conviction under Section 498-A read with 34 of IPC is maintained. However, the substantive sentence imposed on her for this offence is reduced to the period which she has already undergone. In addition, she is sentenced to pay fine of Rs.500/- (Rupees Five Hundred Only) and in default of payment of fine, she shall undergo further RI for 15 days.

iv. The appellant No.1 Revan Sudam Kanhere's conviction under Section 498-A read with 34 of IPC is maintained. However, the substantive sentence imposed on him shall be covered for the period which he has already undergone and no further substantive sentence survives against him for Section 498-A read with 34 of IPC. In addition, however, he is directed to pay Rs.500/- (Rupees Five Hundred Only) and in default of payment of fine he shall undergo RI for 15 days.

v. The appellant No.1 Revan Sudam Kanhere's conviction under Section 306 read with 34 of IPC is altered to that under Section 306 of IPC. He is sentenced to suffer RI for four years instead of ten years. In addition, he is sentenced to pay fine of Rs.1,000/- (Rupees 21 of 22 : 22 : 201.apeal-547-18.odt

One Thousand Only) and in default of payment of fine, he is directed to undergo RI for one month.

vi. All the substantive sentences are directed to run concurrently. vii. Clause (7) of the operative part of the impugned judgment reads thus :

"7] The accused No.1 Revan shall also pay compensation at Rs.1,00,000/- to the parents of the deceased Rekha viz. Alka Dilip Garad and Dilip Madhukar Garad, R/o. Laul, Taluka Madha, District Solapur u/s. 357(3) of CrPC within a period of three months. If the same is not tendered in the stipulated time, then the same may be recovered in accordance with law of course after appeal period is over and if there is no stay by the Hon'ble High Court."

. This clause is modified as follows :

"The accused No.1 Revan shall also pay compensation at Rs.1,00,000/- to the parents of the deceased Rekha viz. Alka Dilip Garad and Dilip Madhukar Garad, R/o. Laul, Taluka Madha, District Solapur u/s. 357(3) of CrPC within a period of three months from the date of judgment and order passed in this appeal. If the same is not tendered in the stipulated time, then the same may be recovered in accordance with law."

viii. The appellants are given benefit of Section 428 of Cr.P.C.. ix. With these directions, the appeal is disposed of.

(SARANG V. KOTWAL, J.) Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date:

2022.08.30

Deshmane (PS) 18:45:24 +0530

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