Shankar Ashok Gatkal vs State Of Maha
2023 Latest Caselaw 6948 Bom

                                                               revn-350-2004 judg.odt
                                     (1)


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

            CRIMINAL REVISION APPLICATION NO. 350 OF 2004

 Shankar s/o Ashok Gatkal
 Age 28 years, Occu. Agri.,
 R/o Karhetakli, Tq. Shevgaon,
 Dist. Ahmednagar                                      ...Applicant

          VERSUS

 The State of Maharashtra
 (Copy to be served on the
 Public Prosecutor, High Court of
 Bombay Bench at Aurangabad).                          ...Respondent
                                  ...
 Mr. V.D. Hon, Senior Counsel i/b Mr. A.D. Sonkawade, Advocate for
 the applicant.
 Mr. S.P. Deshmukh, APP for the respondent-State.
                                   ...

                                           CORAM : S.G. MEHARE, J.

RESERVED ON : JUNE 21, 2023 PRONOUNCED ON : JULY 13, 2023

JUDGMENT:-

1. Heard learned senior counsel for the applicant and

learned APP for the State.

2. Being dissatisfied with the Judgment and order of

conviction of the learned 4th Ad-hoc Assistant Sessions Judge,

Ahmednagar, passed in Sessions Case No. 52 of 2012 dated

27.07.2002 and confirmed by the learned Additional Sessions Judge,

Ahmednagar, by his Judgment and order in Criminal Appeal No.30 of

revn-350-2004 judg.odt

2002 dated 28.07.2004, the petitioner/accused has preferred the

present revision under Section 397 r/w 401 of Cr.P.C.

3. The appellant shall be referred to as "the accused"

hereafter.

4. The brief facts of the prosecution case were that the

accused married the deceased on 20.05.2001, and she went to cohabit

with him. She was treated well for about two months only.

Thereafter, the accused and his family started subjecting her to cruelty

for Rs.1 lac for purchasing the land. They were also taunting her that

her parents did not perform the marriage as per their wish and also

beating, abusing and starving her. The deceased was complaining

about her ill-treatment to her parents and brother when she was

going to their home. Her parents told the accused not to harass and

ill-treat her, but they did not listen. She was ill-treated for the demand

of a dowry for Rs.1 lac continuously. Lastly, she jumped into the Well

and finished her life.

5. Learned senior counsel for the accused has vehemently

argued that the prosecution has no evidence to prove the ill-treatment

and harassment caused to the deceased for the demand of dowry. Till

the incident happened, there were no complaints against the accused.

They consummated their marriage peacefully for about seven years;

however, she died accidentally. The spot panchnama is self-speaking.

The learned trial Court and the first appellate Court did not consider

revn-350-2004 judg.odt

the law that unless the prosecution discharges the burden to prove the

cruelty, the presumption under Section 113-A of the Indian Evidence

Act would not apply. The accused has satisfactorily explained the

burden on him under Section 106 of the Indian Evidence Act by

bringing the probabilities. The conduct of the complainant keeping

mum till the incident has also been completely ignored. The natural

conduct of the accused informing the parents has also not been

properly weighed. The findings have been recorded on whims and

surmises. There was no evidence of which land the accused wanted to

purchase. Hence, the prosecution case is unbelievable. The material

contradictions and omissions have also not been considered. He relied

on the case of Girdhar Shankar Tawade Vs. State of Maharashtra,

(2002) 5 SCC 177, Kuppili Surya Rao Vs. State of A.P., rep. by the

Public Prosecutor, Hyderabad, 2004 SCC Online AP 1368 and The

State of Maharashtra Vs. Santosh Chandrakant Khair and Others,

2015 SCC Online Bom 6921. Referring to the law on Sections 106

and 109 of the Indian Evidence Act, he has vehemently argued that

both Courts have erred in believing the witnesses and illegally held

the accused guilty. Therefore, the revision may be allowed, and both

judgments be quashed and set aside.

6. Per contra, learned APP for the State would submit that

the accused did not have the probable defence. He had suppressed the

fact of lodging the accidental death report from the Court. Since the

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deceased died within seven years of marriage, the accused did not

rebut the presumption under Section 113-A of the Indian Evidence

Act. Lastly, the deceased was in the custody of the applicant;

therefore, he was bound to explain how her company was detached.

In the ordinary course, the victim had no reason to go to fetch the

water at such a long distance Well. The immediate conduct of the

applicant after the incident is doubtful. There is limited scope in the

revision to warrant the interference. The evidence has been correctly

appreciated. There are no errors on the face of the record. The case

laws relied upon by the applicant do not apply to the present case.

Hence, the revision is liable to be dismissed.

7. In reply, learned senior counsel Mr. Hon would submit

that the accidental death report was given in brief. Hence, the accused

can not be doubted. Unless the suicide is proven, the presumption will

not attract.

8. There was no dispute that the deceased was found dead

in a well around 1 to 1 and ½ km from the house of the accused. The

applicant did not deny that the deceased was with him on the date of

the incident. It is also not in dispute that the deceased died within

seven years of her marriage.

9. The arguments have been advanced that it was an

accidental case. Considering the facts and circumstances of the case,

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it would be essential to examine first whether it was a suicide or

accidental death.

10. It's a case of drowning. The prosecution has a case, that

due to ill-treatment for the demand of dowry, deceased jumped into

the Well and the accused has a case that it was an accident. She went

to fetch water due to the failure of the electric power. In the absence

of eyewitnesses to such type of incident, to ascertain whether it was

an accident or suicide by drowning, the spot panchanama is the best

piece of evidence. The circumstantial evidence like the location and

condition of the Well, what was recovered from the Well, the

possibility of a woman going there to fetch the water, external injuries

etc., are relevant factors to be considered to decide the nature of

death.

11. The proven facts are that the Well was in field survey

no.38, which was about 2 to 3 km away from the residence of the

accused. It was not in a residential locality. The spot panchnama

Exhibit-33 reveals that the said well was constructed with stone. It

was used for fetching water for crops in the field. An electric motor

was also installed in the Well. One iron bucket, pressed at various

places and 20 feet long nylon wire was recovered from the Well. The

spot panchanama does not disclose that there were pots to carry the

water except a pressed bucket and a wire. The inquest panchanama

Exhibit-31 indicates that she had no injuries to her head and her body.

revn-350-2004 judg.odt

If she had fallen into the Well, she would have been injured. There are

no circumstances to believe that the deceased went to the Well

situated in a lonely place to fetch water due to electric power breaks

in the village. Even though it is believed that there was electric power

failure, he had to fetch the water by hand from the Well. Then she

did not need to go to the Well situated at such a long distance. In

natural course, she must have carried the pots to bring the water.

There were no pots on the spot of the incident. The said Well was not

used for fetching water by the villagers. All these circumstances

indicate that she did not go there to fetch water. Since she had no

injuries, it is difficult to believe she fell into the Well. The material on

record shows that the conduct of the applicant was suspicious.

12. There is nothing on record that there was no parapet wall

to the said Well. It was not suggested to the witnesses that the

deceased fell into the Well while fetching water from the Well, and

she died. It was not the case of the accused that she was not lastly

in his company. The burden was on him to offer a satisfactory

explanation as to her cause of death. The explanation of the applicant

that she went to fetch the water due to electric power failure does not

inspire confidence. Since the deceased died within seven years of

marriage, the presumption under Section 113-A of the Indian

Evidence Act would apply, provided the prosecution has to discharge

the initial burden to prove that she was ill-treated for money. The

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applicant could not satisfy the Court that the evidence of ill-treating

the deceased for the demand of money was unbelievable. Therefore,

the presumption under Section 113-A of the Indian Evidence would

apply.

13. Considering the circumstances and proven facts, there

appears, no force in the arguments of the learned senior counsel for

the accused that the prosecution did not discharge the burden to

prove that it was a suicide. In the absence of any circumstantial

evidence, it would be difficult to believe his defence which was not

even suggested to the witnesses that it was an accidental death. The

case laws relied upon by the applicant have been perused. However,

those do not apply to this case as those were on different facts. Both

Courts have correctly appreciated the facts and evidence and recorded

the correct conclusion.

14. After having gone through the impugned judgments and

orders, the Court is satisfied that both judgments and orders are free

from infirmities and illegalities. The accused did not satisfy the Court

that there were errors on the face of the record and that illegalities

had been committed in convicting the applicant. Hence the order :

ORDER

(i) The revision application stands dismissed.

(ii) The accused shall surrender before the learned trial Judge on or

before 03.08.2023.

revn-350-2004 judg.odt

(iii) The bail and surety bonds stand cancelled.

 (iv)         Rule stands discharged.




                                                (S.G. MEHARE, J.)




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