Prakash Bhanudas Mohite vs The State Of Maharashtra And ...
2023 Latest Caselaw 1823 Bom

                                                                      CriAppeal-266-2022.odt


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD

                            CRIMINAL APPEAL NO. 266 OF 2022

Prakash Bhanudas Mohite
Age-44 years, Occupation - Agril.,
R/o. Flat No. 404, Shree Sai Dev,
Survey No.19/1/3 & 4,
Near Bishops School,
Hole Wasti Chowk, Undri,
Pune, Dist. Pune.                                             . . . Appellant

                 Versus

1.      The State of Maharashtra

2.      Gangabai w/o Prakash Mohite,
        Age-45 years, Occupation-Household,
        R/o. Mandhani, Tq. Jintur,
        Dist. Parbhani.                                    . . . Respondents
                                                     (R. No.2 original accused)

                                      .....
     Miss Ashwini Lomte h/f Mr. S. J. Salunke, Advocate for the Appellant.
             Mrs. V. S. Choudhari, APP for Respondent No.1-State
                                      .....

                                     CORAM : SMT. VIBHA KANKANWADI AND
                                             ABHAY S. WAGHWASE, JJ.

                                     DATED   : 23 FEBRUARY 2023

ORDER (PER ABHAY S. WAGHWASE, J.) :

1. The appellant has instituted present appeal by invoking provisions of

Section 372 of the Code of Criminal Procedure (Cr.P.C.) assailing the judgment

and order passed by learned Additional Sessions Judge-2, Parbhani dated

04.12.2021 in Sessions Case No. 138 of 2012.

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FACTS OF THE CASE GIVING RISE TO THE SESSIONS CASE

2. Crime came to be registered at the instance of PW2 Police Head

Constable Sudhakar Kanke attached to Jintur Police Station, alleging that on

08.06.2012, present respondent no.2 attempted to commit suicide by jumping

in a well along with her three minor children. In the said incident respondent

no.2 and a minor daughter survived whereas other children i.e. Ajay aged six

years and Didi aged three months got drowned and died. On receipt of

information to that extent, Police Head Constable Sudhakar set law into

motion and crime bearing no. 100/2012 came to be registered and present

respondent came to be arrested. After investigation, present respondent was

chargesheeted for commission of offence punishable under Sections 302, 307

and 309 of the Indian Penal Code (IPC).

3. Trial was taken by learned Additional Sessions Judge-2, Parbhani, who

after appreciating the evidence on record, passed the impugned judgment and

order by which learned trial court held that prosecution failed to establish the

charges and thereby acquitted the accused i.e. present respondent no.2. It is

this judgment of acquittal which is now challenged.

4. Learned Advocate for the appellant would strenuously submit that

prosecution had come with cogent and reliable evidence against present

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respondent no.2 who, in spite of being mother of three innocent minor

children, had attempted to commit suicide along with them. She managed to

survive along with one child but rest two children unfortunately died. She was

solely responsible for their death. Therefore she was booked for above

offences.

5. Learned Advocate pointed out that after thorough investigation, finding

sufficient material against accused, she was duly chargesheeted and made to

face trial during which prosecution adduced evidence and in all five witnesses.

Appellant, who is husband of respondent no.2, himself stepped in the witness

box and has deposed about the acts and deeds of his own wife. Therefore,

there was sufficient cogent and reliable evidence and the same ought to have

been accepted and relied by learned trial court, but it failed to do so.

6. Learned Advocate for the appellant would also take us through the

medical evidence and evidence of other witnesses and submit that there was

support from independent witnesses, however, learned trial court failed to

consider and appreciate the same. That, respondent no.2 was solely

responsible for death of her own minor children but the same has not been

taken into consideration by learned trial Judge. According to him, required

ingredients for attracting charges under Sections 302, 307 and 309 were very

much available on record but learned trial Judge has failed to consider and

CriAppeal-266-2022.odt

appreciate the same and thereby has erred in acquitting respondent no.2

accused and hence, she prayed that, appeal deserved to be allowed.

7. Learned APP for the State also supported the submissions made by

learned Advocate for the appellant and submitted that indulgence and

interference at the hands of this Court is warranted in this case as respondent

no.2 is solely responsible for not only attempt to suicide but also for throwing

her own minor children in the well and committing their murder.

8. We have heard learned Advocate for the appellant as well as learned

APP for the State to their satisfaction. We have examined the record before us.

Prosecution came up with a case in trial court that present respondent no.2,

mother of three children, was annoyed with her husband PW4 Prakash i.e.

present appellant and therefore she went to the well along with three minor

children and jumped in the same along with all children. However, she and

one child survived while remaining two children seems to have got drowned

and died. Record shows that in all five witnesses were examined by

prosecution and therefore we propose to visit their testimonies to ascertain

whether there is substantive evidence suggesting commission of offence for

which respondent no.2 was chargesheeted and tried.

CriAppeal-266-2022.odt

9. On taking survey of entire evidence, it is emerging that PW1 Raju has

acted as pancha to spot panchanama and he supported prosecution by

identifying the same at Exhibit 25 dated 09.06.2012.

10. PW2 Sudhakar Kanke is the informant Police Head Constable. He in his

evidence at Exhibit 28 stated that while he was working at Jintur Police

Station, on 08.06.2012 a phone call was received from Police Patil about a

lady throwing her children in the well and committing suicide. Accordingly, he

reached to the spot. He stated that before he reached there, the villagers had

taken out the lady and one daughter. According to him, the well belonged to

one Punjare and it has come in his evidence that villagers also informed that

two children were in the well water and therefore to dead children were taken

out of the well with the help of villagers. He stated that on inquiry, lady

informed that her in-laws were ill-treating her on the ground that her parents

did not give ornaments to her younger daughter and did not pay dowry and

therefore she committed the above act. This witness stated that on the

strength of the same, he lodged the FIR and he identified it at Exhibit 29.

Above witness in cross-examination answered that he did not lodge

report against the in-laws of the lady. He denied that said lady lodged report

against her in-laws. He denied that accused lady stated that her in-laws had

driven her out of the house for not bringing ornaments and that the lady

CriAppeal-266-2022.odt

accused said that her husband and mother-in-law followed her and they

pushed her in the well with the children.

11. PW3 A.P.I. Gulam Patel seems to have carried out investigation during

which he visited the spot, drew panchanama, recorded statements of

witnesses, arrested accused and chargesheeted her. He stated that he can

identify the accused but she was not present in the court.

In cross-examination he admitted that he did not record statement of

Laxman Wawal as per his say and he denied filing false chargesheet.

12. According to PW4 Prakash i.e. the present appellant, he is an

agriculturist and accused is his wife. He stated that his parents, brother and

brother's wife looked after their agricultural land. His marriage was performed

with accused 11 years back. He stated that out of four children, one had died

in Pune. Rest of the children were Ajay, Poonam and Didi. He stated that

Gangabai threw Ajay and Didi in the well and they died. According to him, on

07.06.2012 he had been to Nanded for bringing motor and at that time his

wife told him that she was residing at Pune and not to spend money, to which

this witness alleged replied saying that their family was joint and his brothers

work under him. He stated that on 08.06.2012 when he was returning to his

agricultural field, one person told him that a lady had jumped in the well with

CriAppeal-266-2022.odt

her children. Even his sister-in-law called and told that Gangabai had jumped

in the well. So he went there and saw his wife present in the well and she was

holding one wire in her hand and daughter, namely, Poonam was with his

wife. He stated that his other two children died. Police came and carried out

panchanama. He also stated that his wife committed murder of his children.

While under cross-examination, he admitted that he did not lodge

report against his wife. He denied that there was quarrel with his wife and

hence he and his mother followed her and out of quarrel, he and his mother

pushed her in the well.

13. PW5 Rukmini is the sister-in-law of appellant Prakash Mohite. She

stated that Prakash was married with Gangabai. That, her brother-in-law

wanted money for purchasing motor and at that time accused Gangabai

objected, upon which her husband said that they had joint family and that

everyone would be benefited. She stated that she came to the house and went

to fetch water. At that time, Gangabai went with children and when this

witness returned home, she found one person shouting that a lady had jumped

in the well. Not finding Gangabai in the house she went towards the well. She

stated that Gangabai was holding a wire and her daughter. Therefore, she

called her husband. Villagers also came and they took accused Gangabai and

her daughter out of the well. She stated that two children died.

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In cross-examination she admitted that she did not lodge report. She

also denied that mother-in-law pushed Gangabai in the well or about

Gangabai lodging report.

14. The postmortem reports Exhibits 33 and 34, shows the cause of death of

two children i.e. Ajay and Didi as due to cardiopulmonary arrest due to

drowning.

15. Above is the only evidence on behalf of the prosecution. On minute

scrutiny of the entire evidence, more particularly that of PW4 appellant

husband, it is seen that it is not clear as to what prompted respondent no.2 to

jump in the well along with children. There is nothing on record as to what

preceded the alleged episode. PW4 appellant merely speaks that he had been

to Nanded for purchasing a motor and he heard one person saying about a

lady jumping in the well. Though it has come on record that villagers took out

the accused i.e. present respondent no.2 and a child out of the well, there is no

evidence about anybody seeing her going towards the well with intention to

commit suicide along with children. Unfortunately, the persons who allegedly

took out respondent no.2 from the well are not only not examined, but there is

no evidence to show as to how respondent no.2 fell in the well water. It is

surprising that PW4 appellant himself has admitted that he did not lodge

report.

CriAppeal-266-2022.odt

16. For attracting charge under Section 302, motive, intention and

knowledge are very necessary. There is no evidence in that direction. Even for

attracting act of attempt to commit suicide also, there has to be material

suggesting abetment to commit suicide. Even there is no material in that

direction in the trial court. Though there is evidence suggesting respondent

no.2 being taken out of water along with a child, what preceded alleged

occurrence is completely missing from the entire case of prosecution. Theory

and suggestions put up about respondent no.2 getting annoyed on account of

ill-treatment and demand of money by PW4 appellant and his mother are in

absence of any foundation. There is no person who has seen the present

respondent going towards well along with the children with intention to

commit suicide. Therefore, for want of evidence about attempt to commit

suicide along with minor children, guilt cannot be fastened. There are other

possibilities of alleged fall in the well and such possibilities are not ruled out

by prosecution. Therefore, with such quality of evidence, in our view, the view

taken by learned trial Judge is the only possible view that could emerge. No

case on merits being made out in the appeal, the same is hereby rejected.

(ABHAY S. WAGHWASE, J.)                       (SMT. VIBHA KANKANWADI, J.)


VRE