The State Of Maharashtra vs Shriram Mahadev Nikam And Ors
2022 Latest Caselaw 970 Bom

            Digitally signed
            by LAXMIKANT
LAXMIKANT   GOPAL
GOPAL       CHANDAN
CHANDAN     Date:
            2022.01.27
                                                                                       apeal-130.03.odt
            13:19:18 +0530




                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                       CRIMINAL APPEAL NO. 130 OF 2003

             The State of Maharashtra                          ]..... Appellant(Orig.Complainant)
                   versus
             1]    Shriram Mahadev Nikam,                      ]
                   Age 24 yrs.                                 ]
                                                               ]
             2]       Sou Indumati Mahadev Nikam               ]
                      Age 46 yrs.                              ]
                                                               ].... Respondents.

3] Mahadev Saudagar Nikam ] (Orig.Accused Nos.1 to 3) Age 51 yrs. ]

Mr. S. S. Hulke, APP for the Appellant/State.

Mr. Sandeep S Salunkhe for the Respondents.

                                            CORAM :     S. S. SHINDE,
                                                        N. R. BORKAR, JJ
                                            Reserved on     : 10th JANUARY 2022
                                            Pronounced on : 27th JANUARY 2022

             JUDGMENT : [PER S. S. SHINDE, J.]

             1                 The Appellant-State has preferred this appeal against the

judgment and order passed by the learned II Ad-hoc Asstt. Sessions Judge,

Solapur in Sessions Case No.270 of 2001 thereby acquitting the Respondents -

Accused for the offence punishable under Sections 498-A, 306, 304B r/w 34 of

the Indian Penal Code (for short "IPC).

2 The case of the prosecution, in brief, can be stated thus :-

Deceased Rageshri was the daughter of Complainant - Sadashiv

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Agatrao Chowre (PW-1). She married to Accused No.1 on 25/11/1999. After

her marriage, the deceased went to her matrimonial home to cohabit with

Accused No.1 at village Belati. After marriage, for initially period of one year,

she was well treated by the accused persons. Thereafter the accused persons

started harassing the deceased for their demand of Rs.20,000/- for their

grocery shop. When the deceased came at the time of Diwali festival, she

informed her parents about the demand of Rs.20,000/- made by the accused

for their shop. At that time, no amount was paid by the complainant.

Therefore, the accused got angry and started harassing the deceased. It is

further the case of prosecution that, the accused directed the deceased to

deposit an amount of Rs.7,000/- for becoming member of AMWAY Company.

She accordingly informed her father. When the complainant-father refused to

deposit the said amount, the accused started harassing the deceased. It is

alleged that the Accused insisted the complainant to stand surety for his loan

from the bank, and as per their request, the complainant stood surety to the

loan amount. But Accused No.1 did not refund the said amount, and

therefore, the bank has detained pigmy account of the complainant's wife. It

is alleged by the complainant that two months prior to the incident, they had

received telephone call from the deceased informing them that her husband i.e.

Accused No.1 tried to kill her by seizing her throat and, also insisted her to

pour kerosene on her person and set herself to ablaze. The complainant went

to the accused and persuaded them. It is therefore alleged that all the accused

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were harassing the daughter of the complainant for their unlawful demand of

money.

As per prosecution story, on 03/09/2001, the complainant was

admitted in the hospital as he was sick. His daughter i.e. the deceased came to

see him and returned back at about 5.00 pm. At about 7.00 pm the

complainant was discharged from hospital and returned back to home.

Thereafter the complainant received a telephone message from village Belati

that his daughter sustained injury due to hot milk. Therefore, the complainant

sent his son and two other relatives by name Arvind Shinde and Rahul Bhosale

to see what had happened with his daughter. The said persons went to village

Belati. Thereafter the complainant received message from them on telephone

that his daughter died due to burn injuries. On the next day, in the morning,

the complainant went to the civil hospital where post-mortem was conducted

and the dead body of his daughter was handed over to the accused. Then all

of them went to village Belati and performed funeral on the dead body.

Thereafter complainant returned back to Solapur and lodged a report with the

police. On the basis of the report of complainant, crime being CR No.92/2001

came to be registered under Sections 498A, 306 r/w 34 of the Indian Penal

Code.

3           Thereafter API Dhanaji Baba Ombase (PW-6) investigated the


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matter, prepared inquest panchanama and panchnama of scene of offence,

recorded the statements of complainant and other witnesses and, arrested the

accused on 04/09/2001. During investigation, API Dhanaji Ombase (PW-6)

seized stove, iron rod, match box, kerosene and the ash of burnt clothes. He

sent the dead body to civil hospital for post mortem as also he sent muddemal

property to Chemical Analyzer for analysis. Then on 02/10/2001 API Dhanaji

Ombase came to be transferred and further investigation was done by Shri.

Ghoghardare, who sent charge-sheet on 23.11.2001.

4 The medical officer Dr. S. S. Sardar, of Dr. V M Medical College &

SCSM General Hospital, Solapur, conducted the autopsy over the dead body of

Rageshri, and, in column No.17 of PM Report he mentioned the percentage of

burn injuries on the person of deceased and found 100% burn injuries.

According to the doctor, the cause of death is, "shock as result of Burns".

Accordingly, the doctor issued post mortem notes (Exh.13).

5 On completion of investigation, charge-sheet came to be filed

before the Judicial Magistrate First Class, Solapur. However, the charge under

Section 306 of the IPC is exclusively triable by the Court of Sessions, the

learned Judicial Magistrate First Class, Solapur, committed the case to the

Court of Sessions.

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6           Thereafter the learned Additional Sessions Judge, Solapur framed

charge against the accused for the offences punishable under Sections 498-A,

306 and 304B of the IPC. The charge was read over and explained to the

accused. The accused pleaded not guilty and claimed to be tried. The defence

of the accused was of total denial. According to the accused, they never

harassed and illtreated and subjected to cruelty to the deceased, and therefore,

they are not responsible for the death of Rageshri.

7 To bring home the guilt of the accused, during the trial the

prosecution has examined in all six witnesses in support of its case. The Trial

Court has recorded statements of accused under Section 313 of the Criminal

procedure Code. The learned Sessions Judge, after considering the entire

evidence available on record, came to a conclusion that the circumstantial

evidence brought on record cannot be said to be sufficient to prove the guilt of

the accused, and therefore, the prosecution has failed to prove any of the

alleged offences against the accused beyond reasonable doubt. Hence this

Criminal Appeal filed by the State against the said order of acquittal.

8 We have heard the learned APP for the Appellant - State and the

learned counsel for the Respondents - Accused. With their able assistance

perused the grounds taken in the Appeal Memo, the evidence led by the

prosecution, as well as evidence led by the accused in their defence, the

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documents produced on record, and the reasons recorded by the learned

Sessions Judge in the impugned judgment.

9 It is submitted by the learned APP that the learned Sessions Judge

has erred in acquitting the accused and not taking into consideration the

material on record, and in discarding the evidence led on behalf of the

prosecution. He submits that the learned Sessions Judge has not applied his

mind in appreciating the oral as well as documentary evidence on record.

There is sufficient evidence to show that the accused persons demanded money

from the parents of deceased and, when the parents refused, the accused

started harassing and ill-treating the deceased. The prosecution, by adducing

sufficient evidence, has proved that the death of Rageshri was due to cruelty

and harassment on the part of the accused. The view taken by the trial court is

not a plausible view. The learned APP therefore submits that, the impugned

judgment and order passed by the learned II Ad-hoc Asstt. Sessions Judge, in

Sessions Case No.270/2001 acquitting the Respondents - Accused from the

offence punishable under Sections 498-A, 306 and 304B of the IPC is

erroneous and is liable to be quashed and set aside. He further submits that

the Appeal filed by the Appellant/State against the acquittal of the

Respondents/Accused may be allowed.

10          The learned counsel appearing for the Respondents/Accused


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submits that, the prosecution has failed to bring home the guilt of the accused.

It is also submitted that the case of the prosecution is based on circumstantial

evidence as there is no eye witness to the incident. Rageshri was physically

weak and the accused were giving her medical treatment. Therefore, the trial

Court has rightly observed that Rageshri might be mentally sufferring on the

date of incident and therefore, she might have committed suicide. The

Respondents/Accused are not responsible for the death of Rageshri. The

Respondents - Accused have been falsely implicated in the commission of

alleged offence as there is no eye witness to the incident and, the witnesses

examined by the prosecution are interested witnesses, and therefore, the Trial

Court has rightly discarded their evidence. The evidence on record is not

sufficient and satisfactory to prove that all the accused were harassing and ill-

treating Rageshri for the unlawful demand or for any other reasons. He also

submits that there are contradictions and omissions in the evidence led by the

prosecution to prove its case. The trial Court after considering the evidence

and material on record has rightly acquitted the accused. He lastly submits

that the impugned order is well reasoned order and needs no interference at

the hands of this Court. He therefore submits that the Appeal filed by the State

may be dismissed.

11 There are certain undisputed facts which are required to be

mentioned before considering the evidence led by the prosecution as well as

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the evidence led by the accused in their defence. The relationship between the

complainant and the accused persons as also the marriage dated 25/11/1999

are not in dispute. It is also not in dispute that Rageshri died due to burn

injuries, and therefore, it is not a natural death. From the evidence it is crystal

clear that the incident had happened in a closed room. At the time of incident,

the deceased was alone in the room. There is no eye witness to the incident,

and the prosecution case is based on circumstantial evidence. During

investigation the police seized one stove, one match box ash of the burnt

clothes and one iron rod from the spot of incident. The PW-2 with the help of

iron rod broke open the door of the said room and they saw that the dead body

was lying on the ground and it was wholly burnt. The doctor who conducted

the post mortem found 100% burn injuries on the person of Rageshri and the

cause of death mentioned in the P M Notes is "shock as result of burns".

12 In order to prove the alleged offences levelled against the accused,

the prosecution has examined in all six witnesses, they are Complainant

Sadashiv Agatrao Chowre (PW-1) - the father of the deceased, Kumar Vasant

Kokate (PW-2) - the Panch witness to the panchanama of scene of offence,

Chaya Sadashiv Chowre (PW-3) - the mother of the deceased, Satyabhama

Ashok Gavakari (PW-4) - the neighbour of the complainant, Arvind Bhikaji

Shinde (PW-5) - the relative of the complainant and, API Dhanaji Baba

Ombase (PW-6) - the Investigating Officer.

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13          In their defence the accused stated that, they never harassed, ill-

treated and subjected the deceased to cruelty and that they are not responsible

for the death of Rageshri; to strength the aforesaid defence, the Accused

examined two witnesses. They are Rukmini Abhiman Badwane (DW-1) and

Sushila Dasut Bandgar (DW-2).

14 The Complainant (PW-1) in his depositions stated that for the

period of one year after marriage, the deceased was carried well and there

were no complaints and disputes between the couple and other accused during

the said period. Thereafter the accused have demanded Rs.20,000/- from him

for the grocery shop. They have also sent message through his daughter

(deceased) that after sanction of their loan, they will refund the money.

However, the complainant has not paid the said amount as per the demand of

the accused. He further deposed that, therefore, the accused started harassing

his daughter. Thereafter, the accused insisted the complainant to stand surety

for their loan amount of Rs.60,000/-, which has been borrowed by Accused

No.3, and as accused No.3 did not refund the said amount to the bank, the

bank issued notice to the complainant as he stood as surety for the said

amount. PW-1 further deposed that thereafter the accused started insisting

them through the deceased that complainant should take agency of AMAWY

company by depositing Rs.7000/-, and as he did not become the member of

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said company, they have started harassing to his daughter. He further deposed

that two months prior to the incident, he received telephone call from his

daughter informing him that her husband pressed her neck and gave her can of

kerosene and told her to set herself to fire by pouring kerosene. Then the

complainant and his wife went to the matrimonial house of their daughter. The

accused No.2 only was present in the house. The complainant and his wife

persuaded and requested the accused not to harass his daughter as they were

unable to comply the demand. The complainant further stated that when he

was admitted in the hospital on 03/09/2001, his daughter (deceased) came in

the hospital and met him at about 3.30 and then went back. The complainant

was discharged and returned back to his house at about 7.30 pm. Then he

received a telephone call that his daughter has received burn injuries as hot

milk fell on her person. He sent his son - Sheshraj Sadashiv Chavre, one Rahul

Bhosale and Arvind Shinde to Belati to see what had happened. All of them

went to Belati and informed the complainant that his daughter was severely

burnt and there is no possibility to save her. On next day in the morning, the

complainant went to civil hospital and came to know about the death of his

daughter. After post-mortem dead body was handed over in their custody. Then

all of them went to Belati, where at about 1.30 pm funeral was performed on

the dead body at Belati. Then the complainant went to Salgar Wasti Police

station and lodged a complaint against the accused.

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Complainant Sdashiv Chawre (PW-1) in his cross examination has

stated that health of his daughter was weak and her nature was sensitive, and

in order to improve her health, the persons from her matrimonial home were

insisting her to eat more for her health. The complainant (PW-1) in his cross

has categorically admitted that neither he has made any complaint with any

forum during the life time of his daughter that her husband pressed her neck

and that she should set herself ablaze by pouring kerosene, nor did he file any

complaint with police.

15 We have gone through the evidence of other prosecution witnesses

and find that they deposed more or less like the complainant (PW-1). Upon

careful perusal of the deposition of complainant and other prosecution

witnesses, we find that no particulars of alleged demands are mentioned in

their deposition. There are vague allegations without mentioning particular

dates or instances. The complainant himself has stated in his deposition that

there was no demand or ill-treatment and harassment for one year from the

date of marriage. He categorically admitted in his cross examination that

neither he has made any complaint with any forum during the life time of his

daughter that her husband pressed her neck and that she should set herself

ablaze by pouring kerosene, nor did he file any complaint with police. PW-3

and PW-5 admitted in their deposition that deceased was physically weak, and

therefore the accused were giving her medical treatment for improving her

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health. Even PW-5 in his cross examination admitted that he had not filed

complaint at anywhere in her life time, as also PW-5 could not state the date,

day and month when his maternal uncle i.e. the complainant informed him

about the harassment to her. The Investigating Officer - PW-6 stated in his

deposition that during investigation none of the witnesses stated before him

that there was harassment to Rageshri by the accused. During investigation

PW-6 recorded the statement of the boy Pravin Dattatray Bhosale who used to

go for tuition to deceased, and he has not stated anything about the quarrel

between the deceased and accused on that day.

16 In its entirety the prosecution case does not inspire confidence. It

appears that the incident in question had taken place in a closed room when

the deceased Rageshri was alone. The accused in their defence stated that they

never harassed and ill-treated and subjected to cruelty to the deceased, and

therefore, they are no responsible for the death of Rageshri. The witnesses

examined by the accused in their defence have stated that the accused were

treating deceased Rageshri in a well manner and, because Rageshri was weak,

they were giving medical treatment. Both the defence witnesses have

categorically stated that, the mother-in-law of Rageshri was treating her as her

own daughter and, the accused No.1 and deceased were residing happily and

carrying well, and it was the deceased Rageshri who insisted accused No.1 to

stay at Solapur city as she was not in habit to reside in village.

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17           The Trial Court in depth has scrutinized the evidence adduced by

the prosecution in support of its case as well as the evidence adduced by the

accused in their defence, and reached a conclusion that the evidence adduced

by the prosecution on record cannot be said to be sufficient and satisfactory to

prove that all the accused were harassing Rageshri or ill-treating her for their

unlawful demands or for any other reasons. The Trial Court further observed

that there are no allegations against the accused regarding physical harassment

to the deceased. On the basis of the evidence on record and the material

placed on record, the trial court come to the conclusion that the prosecution

has failed to prove any of the alleged offences against the accused beyond

reasonable doubt. We have noticed that the Trial Court has meticulously dealt

with the entire evidence of the prosecution and reached to a correct

conclusion. The law is well settled that the view taken by the Trial Court

thereby acquitting the accused cannot be lightly interfered into, unless the

Appellate Court on re-appreciation of evidence comes to a conclusion that the

findings recorded by the Trial Court are perverse and the view taken was not

plausible at all.

18 In the light of the discussion made in the foregoing paragraphs, we

are of the considered view that the Trial Court has taken a plausible view and

has rightly acquitted the Respondent - accused. No case is made out for

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interference in the impugned judgment and order. There is no merit in the

Appeal. Hence the following order :-

:ORDER:

Criminal Appeal No.130 of 2003 stands dismissed.

[N. R. BORKAR, J]                               [S. S. SHINDE , J]




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