Bombay High Court
Kishore S/O Namdeorao Karmore vs State Of Mah. Thru. Pso Arni on 12 December, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
CRI.APPEAL.706.08+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 706/2008
with
CRIMINAL REVISION NO. 248/2008
CRIMINAL APPEAL NO.706/2008
Kishore s/o Namdeorao Karmore
Aged about 34 years, occu: Agriculturist
R/o Jawala, Tq.Arni, Dist. Yavatmal. .. APPELLANT
versus
State of Maharashtra
Through Police Station Officer
Arni Dist. Yavatmal. .. RESPONDENT
....................................................................................................................................
Mr. Vinay Dahat, Adv.h/for Mr J B Kasat, Adv.for appellant
Mr. I.J. Damle, APP for respondent-State
.....................................................................................................................................
CRIMINAL REVISION NO. 248/2008
Lata w/o Kisan Karmore
Aged about 27 years , occu: housewife
R/o village Pusda, Tq.&Dist.Amrvati. .. APPLLICANT
versus
1) State of Maharashtra
Through P.o. Police Station
Arni Dist. Yavatmal.
2) Kishor s/o Namdeorao Karmore
Aged about 34 years
30 namdeo narayanrao karmore
Aged about 55 years
4) Prakash namdeorao Karmore
Aged about 40 years
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2
5) Sanjay namdeorao karmore
Aged about 29 years
6) Kamlabai namdeorao karmore
aged about 54 years
7) Usha Prakash Karmore
Aged about 36 years
All R/o Jawala, Tq. Arni Dist. Yavatmal. .. RESPONDENTS
....................................................................................................................................
Smt. S.W./R.J.Deshpande, Cousnel for applicant absent
Mr. I.J,.Damle., APP for respondent no.1
Mr. Vinay Dahat Adv.h/for mr J B Kasat,Adv.for res.nos. 2 to 7
.....................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 12. 12. 2019
ORAL JUDGMENT:
1. Since both matters arise from the same crime and the common judgment and order is delivered by learned trial Judge and since the paper-book is common, the same are being disposed by this common judgment and order.
2. Appeal No.706/2008 is preferred by original accused no.1-Kishore Karmore, whereas Revision No. 248/2008 is filed by complainant-Lata Karmore, both of which have been directed against the judgment and order dated 11th September 2008, delivered by learned Additional Sessions Judge, Darwha in Sessions ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 3 Trial No.282/2004, whereby the appellant/accused-Kishore Karmore has been convicted for offence punishable under section 498-A of the IPC, and sentenced to suffer R.I. for three years and to pay a fine of Rs.1,000/-, in default, to suffer further SI for one month. The appellant-Kishore, however, was acquitted of the offence u/s 307 r/ws. 34 of the IPC. The other accused in the Sessions Trial too were acquitted of the offence punishable u/ss. 498A , 307 r/ws. 34 of IPC.
3. The prosecution case in a nutshell can be summarized as under :-
The marriage between complainant-Lata (PW1) and the accused-Kishore Karmore was performed on 25.11.2000. After marriage, PW1 started cohabiting with the appellant and her in- laws at village Jawala. Nearly eight days after the marriage, the accused persons started ill-treating the complainant demanding an amount of Rs.25,000/- for setting up a Kirana (grocery) shop. For that purpose, they assaulted her. Four months after the marriage, her father handed over an amount of Rs. 25,000/- to the accused ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 4 persons. However, her sister-in-law A6-Usha tried to push her into the well so also the accused persons tried to kill her by administering poison on 28.7.2000. It is the case of the prosecution that when PW1 was at her parental home, the appellant-Kishor had issued a letter asking her to bring the amount of Rs. 25,000/- from her parents. Therefore she came to her matrimonial home on the same day. At that time, accused-Kishore asked her whether she had brought the amount of Rs. 25,000/- and thereafter suddenly he started assaulting her by means of an axe. Other accused too assaulted PW1 by means of fist and kick blows, due to which she received bleeding injury on her left hand. Therefore, on 25.11.2000, a complaint was lodged against the accused persons vide Exh.57. ASI-Baban Dahake (PW4) who was attached to Arni Police Station recorded the oral complaint of PW1 and on the basis of it, he registered the offence vide Cr. No. 171/2000. He visited the place of incident and recorded the spot panchnama Exh.17.
From the accused he seized one axe vide seizure panchnama Exh.71. Statements of the witnesses were recorded and after completion of investigation charge-sheet was filed in the Court of ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 5 learned JMFC. The learned JMFC framed the charge under sections 324 and 498A of IPC on 11.6.2001. An application for compounding of the offences i.e. u/ss 498A and as well as 324 IPC was filed by both the parties on 11.07.2001. However the compounding was allowed only for offence punishable u/s 324 r/ws.34 IPC. The evidence came to be recorded for offence u/s 498A of IPC. In the meantime, an application was moved by the State for alteration of charge, on the basis of the same allegations and Sec. 307 r/ws. 34 IPC was then added vide order dated 28.1.2004 (below Exh.53), by the learned JMFC. The case was then committed to the Court of Sessions. The learned Addl. Sessions Judge framed the charge u/s 498A r/ws.34 IPC , 324 r/ws.34 IPC and 307 r/ws.34 of IPC. The learned trial Judge after recording the evidence and hearing both sides, convicted and sentenced accused-Kishore, as aforesaid.
4. Mr. Vinayak Dahat, learned Advocate h/for Mr. J.B. Kasat, for the accused vociferously argued that the learned trial Judge has not assessed the evidence led by the prosecution witnesses in its proper perspective and has erroneously convicted ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 6 the accused. It is submitted that the learned trial Judge has failed to consider that the charge u/s 324 r/ws.34 IPC was already allowed to be compounded by leaned JMFC vide order dated 11.7.2001. In these circumstances, the application for alteration of charge u/s 307 IPC, on the basis of the same allegations which were made u/s 324, should not have been considered. He further submitted that even the conviction of the accused for the offence punishable u/s 498-A is erroneous inasmuch as the learned trial Judge has failed to consider the material discrepancies in the testimony of the all the concerned witnesses. He further submitted that it is not considered that after making allegations about assault PW1-Lata started cohabiting with the accused-Kishore meaning thereby that the act of the alleged ill-treatment and the assault was condoned by the PW1-lata. In these circumstances, it is submitted that the impugned judgment and order needs to be set aside.
5. Per contra, Mr. I.J. Damle, the learned APP contended that the learned trial Judge has properly assessed the evidence led by the prosecution witnesses and supported the impugned ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 7 judgment.
6. In order to consider the rival contentions of both sides, it would be advantageous to go through the testimony of the prosecution witnesses, who are the relatives i.e. PW1-complainant- Lata, PW2-Kamlabai, mother of complainant, PW3-Ramrao, father of the complainant, PW5 Dr. Vinu Divekar, Medical officer, Rural Hospital, Arni and PW4-Baban Dahake and PW6-Vasant Kale , Investigating Officers.
7. The testimony of PW1-Lata Karmore demonstrates that eight days after the marriage it had taken place on 9.3.2000, all the accused persons started ill-treating her. Her father had given Rs. 25,000/- to the accused persons. A6-Usha, who is her sister-in-law of PW1, tried to push her into the well. According to PW1, A1- Kishore i.e. her husband, has illicit relations with A6-Usha and hence she tried to push her into the well. Thereafter also, all the accused persons were physically and mentally torturing her. On 27.8.2000 all the accused persons administered poison to her and ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 8 thereafter they left her in her bed room. She was taken to the hospital at Yavatmal and admitted till 31.08.2000. On the message given by accused, her parents visited the hospital and she narrated the incident. Thereafter, the complaint was lodged in the Police Station. She told that she was discharged from the hospital on 31.08.2000 itself. The accused-Kishor brought her to his house. All the accused threatened her to set her ablaze. They also obtained signature on one blank paper and thereafter she continued to reside there till Diwali festival. She alleged that during the said period all the accused persons removed gold ornaments worth Rs. 40,000/-. On or before 25.11.2000 the accused sent her to her parental house for bringing an amount of Rs. 50,000/-. She stayed there for about 4 to 8 days. On 25.11.2000 she went to her matrimonial house as per the message given by A4-Sanjay, her brother-in-law, telephonically, that accused A1-Kishore had met with an accident. Thereafter the complainant was asked to bring an amount of Rs. 50,000/- from her parental house and as she had not brought the said amount, the accused persons assaulted her by means of fist and kick blows. She submitted that at that ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 9 point of time she was carrying pregnancy of two months. The accused also abused her. She stated that as A1-Kishore assaulted her by means of axe on her left hand, she lodged report in the Police Station vide Exh.57.
8. The evidence of PW1 further shows that after lodging her complainant, she filed an application before the Women Protection Cell of City Police Station, Amravati. During the pendency of the said application, A1-Kishore gave an undertaking on a stamp paper that he will not ill-treat PW1-Lata and would not demand amount from her. Thereafter she returned to Jawala for cohabitation and gave birth to a female child. According to PW1, thereafter, the accused persons again ill-treated her to make her insane. They gave medicines for that purpose. They also gave her powder of glass and and waste water. PW1 stated that the accused took her to Digras Court and the Court referred her to Mental Hospital. PW1 deposed that A1-Kishore then performed second marriage.
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9. At the cost of repetition, it is worthwhile to note that all the accused persons are acquitted of the offences punishable u/ss. 324 and 307 r/ws. 34 of the IPC, except A1-Kishore who was convicted u/s 498-A of IPC.
10. The cross-examination indicates that PW1 after the alleged ill-treatment at the hands of accused persons, had returned to her matrimonial house indicates that she had condoned all the misdeeds of accused persons in respect of the alleged ill-treatment; so also the assault at the hands of the accused. The only allegations then remained that the accused persons had given severe ill- treatment to her to make her insane after she returned to her matrimonial home after giving birth to a female child. According to PW1, the accused persons gave medicines to her for that purpose and also gave powder of glass and waste water. In this regard there is absolutely no convincing evidence on record. It appears that learned JMFC has observed the conduct of PW1 and therefore he referred her to the Mental Hospital.
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11. Significantly, the cross-examination of PW1 is full of exaggerations, improvements and embellishments. In the cross- examination, she had stated before the learned JMFC while recording her evidence that eight days after the marriage all the accused persons started ill-treating her for demand of money, A6- Usha tried to push her in the well as he had illicit relations with A1-Kishor on 27.8.2000; all the accused administered poison to her, after administration of the poison, the accused left her in the bed room and then admitted her in the hospital where she remained till 31.8.2000. She had given a message to her parents and her father had reported the matter to the police, after discharge from the hospital on 31.8.2000, A1-Kishore brought her to her matrimonial home; A4-Sanjay threatened her to set her on fire by pouring kerosene on her person and the accused persons obtained signature on one blank paper and she stayed at Jawala till Diwali festival and during that period all the accused removed her gold ornaments worth Rs. 40,000/-. It is also an improvement in her version that before 25.11.2000, the accused sent her to her parental home for bringing the amount of Rs. 50,000/-; she ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 12 received the message with regard to the accident of A1 and when she went to the matrimonial home, the accused asked whether she had brought the amount of Rs. 50,000/- and they assaulted her, due to which she received injuries on abdomen and at that time she was pregnant.
12. All these improvements made by PW1 in her testimony go to the root of the case and creates a serious doubt about the veracity of the witness. The testimony of PW1 is not found to be trustworthy and worthy of credence at all. It is not clear from the testimony of PW1 that when she had suffered ill-treatment at the hands of the accused then why she started residing with all the accused persons at Jawala. It is also not clear as to why the report was not lodged by her in the Police Station in respect of the said alleged ill-treatment at the hands of the accused persons. It appears that as her conduct was not appropriate in the Court, she was referred to the Mental Hospital for her treatment by learned JMFC In any case, PW1 is not found to be reliable. Her testimony itself shows that she had condoned the misdeeds of the accused persons ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 13 and therefore the application for condoning of the offence filed in the Court of learned JMFC and as narrated above, the offence u/s 324 r/ws.34 of IPC was compounded.
13. So far as the allegations u/s 307 r/ws.34 IPC are concerned, the allegations were that as the accused persons had administered poison to PW1, Sec.307 was framed by learned trial Judge. However as there was no evidence on record to show that the accused persons had administered poison to the PW1, all the accused were rightly acquitted by learned trial Judge.
14. No doubt, the evidence of PW5-Dinu Divekar shows following injuries on the person of PW1 when he examined her on 25.11.2000:-
1) Incise wound over left hand of length 5 inches x ¼ cm.
2) Contusion over scalp right side
3) Contusion over back lumber region with contusion over right scapular region of length of length 4cm. X 4 cm.
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15. As discussed above, the offence u/s 324 r/ws.34 IPC was compounded in the Court of learned JMFC on 11.7.2001. However PW1 on the point of alleged assault dated 25.11.2000 the testimony of PW1 makes it clear that after the said incident she had cohabited with the accused. She stayed there for a period of three months and then gave birth to a female child and thereafter on 11.7.2001 i.e. after a period of more than one year, an application for compounding of the offence was filed before learned JMFC and offence u/s 324 r/ws.34 of IPC was compounded. In view thereof, it can be inferred that the allegations u/s 498-A of IPC are not established from the testimony of PW1. So also the offence u/s 324 of IPC also does not stand as it was compounded before the Court of learned JMFC. Furthermore, the act of PW1 by cohabiting with A1 shows that she had condoned the act of A1 as well as other accused. On the point of allegations under section 307 of IPC i.e. administering poison to her, there is no convincing evidence at all, on record.
16. The testimony of PW2-Kamlabai, mother of Lata (PW1) ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 15 is on the same lines. She stated about the alleged ill-treatment at the hands of the accused persons to PW1. According to her, the accused persons demanded Rs. 25,000/- from her. She had given an amount of Rs. 25,000/- to the father of accused, A2-Namdeorao. According to PW2 while PW1 was in their house they received a message that A1 met with an accident therefore they went to the house of the accused persons. At that time, the accused asked PW1 whether she had brought the amount and assaulted her by means of an axe. Therefore, PW1 lodged report in the Police Station. Her cross examination shows that she had made material improvements about the alleged ill-treatment to PW1 for the demand of Rs. 50,000/- and that PW2 had given the amount of Rs. 25,000/- to A2-Namdeorao.
17. The testimony of PW3-Ramrao, father of PW1 also shows that there was a demand of Rs. 50,000/- and he had given the amount of Rs. 25,000/- to A2-Namdeorao. According to him on 27.8.2000 he had received message that PW1 was hospitalized. He went to the hospital and saw that she was serious as poison was ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 16 administered to her. She was was hospitalized till 31.8.2000. After regaining consciousness, she informed PW3 that she was administered poison by the accused persons namely, A2-Namdeo, A5-Kamlabai, A3-Prakash and A4-Sanjay but did not make any allegation against A1-Kishor. According to PW3, he had gone to lodge the complaint against the accused persons at the Arni Police Station, but they did not accept his report. It is not clear from the testimony of PW3 as to what action taken by the Police on that report. On 27.11.2000 he went to the house of accused along with PW1-Lata and PW2-Kamlabai. At that time, A1 asked her whether she had brought the amount and thereafter all the accused assaulted her by fist and kick blows and A1 assaulted her by means of an axe.
18. The cross-examination of PW3 shows that he has made material improvements in his testimony particularly with regard to the act of the A1 of blow of axe on the head of PW1. So also, there was an improvement in regard to the administration of poison to PW1. There were contradictions in his testimony in ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 17 respect of the fact that PW1 informed him that at the time of Diwali festival she was treated nicely. So also the contradiction was pointed in respect of the fact that he had given amount of Rs. 25,000/- to A1-Kishore. All these discrepancies in this testimony are material and goes to the root of the case and makes the prosecution case doubtful.
19. As discussed above, the prosecution has failed to prove it case beyond reasonable doubt. The ingredients of section 498A has not been proved against the accused persons. So also section 324 r/ws.34 IPC, as discussed above, was compounded before learned JMFC. There is no convincing evidence on record in that regard. Even the allegation of administration of poison to PW1 is not proved by the prosecution. The learned trial Judge should have properly assessed the evidence led by the prosecution witnesses. In view of the facts and circumstances, an interference at the hands of this Court in the impugned judgment, is warranted. Hence, the order.
ORDER:
(i) Criminal Appeal No.706/2008 is allowed. ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 ::: CRI.APPEAL.706.08+ 18 (ii) The judgment and order passed by learned Additional Sessions Judge,Darwha in Sessions Trial No.282/2004 on 11th
September, 2008 convicting the appellant/accused, is set aside and he is acquitted of the offence for which he was convicted.
(iii) The bail bonds of the appellant shall stand cancelled.
(iv) Fine amount if paid by the appellant/accused, be returned to him.
(v) Criminal Revision 248/2008 is dismissed.
JUDGE sahare ::: Uploaded on - 03/01/2020 ::: Downloaded on - 26/04/2020 03:17:31 :::