Bombay High Court
Dhananjay S/O Pralhadrao Deshmukh& 2 ... vs State Of Maharashtra Thr. Pso Ps Chandur ... on 25 April, 2018
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 764 OF 2004
APPELLANTS : 1] Dhananjay S/o Pralhadrao Deshmukh,
Aged about 41 years, Occu. Service,
R/o Virul Ronghe, Taq. Dhamangaon Rly.,
Dist. Amravati
2] Anil S/o Pralhadrao Deshmukh,
(Amol S/o Pralhadrao Deshmukh
as correctly stated in the copy of judgment)
Aged about 44 years, Occu. Service,
R/o Virul Ronghe, Taq. Dhamangaon Rly.,
Dist. Amravati
3] Sou. Sandhya W/o Anil Deshmukh,
(Sou. Sandhya W/o Amol Deshmukh
as correctly stated in the copy of judgment)
Aged about 36 years, Occu. Service,
R/o Virul Ronghe, Taq. Dhamangaon Rly.,
Dist. Amravati
VERSUS
RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Chandur Railway,
Tq. Chandur Rly., District - Amravati.
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Mr. R. M. Daga, Advocate for the appellants.
Mr. Amit A. Madiwale, Addl. Public Prosecutor for respondent/State
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CORAM : V. M. DESHPANDE, J.
DATE : APRIL 25, 2018.
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ORAL JUDGMENT
The present appeal is directed against the judgment and order of conviction passed by the learned 4th Ad-hoc Additional Sessions Judge, Amravati, dated 30.11.2004 in Sessions Trial No.138/1999. By the impugned judgment, the appellants are convicted for the offences punishable under Sections 498-A and 306 read with Section 34 of the Indian Penal Code. For conviction under Section 498-A of the Indian Penal Code, their sentence is sufferance of simple imprisonment for two years and payment of fine of Rs.1,000/- by each of them and in default of payment of fine to suffer further simple imprisonment for three months. The sentence imposed on them on account of conviction for the offence punishable under Section 306 of the Indian Penal Code is simple imprisonment for three years and payment of of fine of Rs.1,000/- by each of them and in default of payment of fine to suffer further simple imprisonment for three months.
2. I have heard Shri R. M. Daga, the learned counsel for the appellants and Mr. Amit A. Madiwale, the learned Additional Public Prosecutor for the respondent/State.
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3. Marriage of Smita was performed with appellant No.1 Dhananjay on 31.5.1997. She committed suicide on 13.9.1999 by pouring kerosene on herself. Appellant no.2 Anil and appellant no.3 Sandhya are husband and wife. They are brother-in-law and sister- in-law of deceased Smita.
4. One Pramod Ronghe, the Police Patil of village Virul Ronghe gave information about the unnatural death of Smita to Police Station authority, Chandur Railway on 13.9.1999. On receipt of such information, an accidental death proceeding was registered in the said police station vide A.D. No. 43/1999 (Exh.22). PW6 Nana Pimpale, A.P.I. made inquiries in the said AD proceedings. During the course of inquiry, he visited the spot. In the presence of panch witnesses, he conducted inquest over the dead body. The inquest panchanama is at Exh.20. Similarly, the spot of occurrence was also noted in the spot panchanama (Exh.21). Thereafter, he sent the dead body for conducting post mortem. The post mortem report is at Exh.30. The cause of death is mentioned in the post mortem report as shock from burns. Viscera was kept for chemical analysis. Though, the percentage of burn is not mentioned in column no.17 of the post mortem report (Exh.30), perusal of Exh.61, ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:27:02 ::: 4 APPEAL764.04.odt a query report, shows that the extent of burn injuries were of about 95%.
5. On 18.6.1999, Anil Ulhe (PW1), the brother of the deceased lodged a written complaint at Police Station, Chandur Railway (Exh.65). On the basis of said, PW6 API Pimpale registered the crime bearing Crime No. 139/1999 for the offences punishable under Sections 306, 498-A read with Section 34 of the Indian Penal Code. The printed first information report is at Exh.82. During the investigation of the said crime, PW6 API Pimpale recorded the statements of relatives of the deceased. The accused persons were arrested and after completion of other usual investigation, he filed the charge-sheet in the Court of law.
6. Since the offence was exclusively triable by the Court of Sessions, the case was registered as Sessions Trial and the learned Additional Sessions Judge, Amravati framed the Charge against the appellants for the offences punishable under Sections 304-B, 306, 498-A read with Section 34 of the Indian Penal Code. The accused persons denied the Charge and claimed for their trial. In order to bring home the guilt of the accused persons, the prosecution has ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:27:02 ::: 5 APPEAL764.04.odt examined in all six witnesses. After the appreciation of the prosecution case, the learned Judge of the Court below, by the impugned judgment, acquitted all the appellants for the offence punishable under Section 304-B read with Section 34 of the IPC, however, convicted them for the offences punishable under Sections 306 and 498-A read with Section 34 of the Indian Penal Code.
7. The incident has occurred on 13.9.1999. The learned Additional Public Prosecutor for the respondent/State strenuously urged that since the death has caused within a span of seven years from the marriage, therefore, there is a statutory presumption available in favour of the prosecution under Section 113-A of the Indian Evidence Act, 1872. Needless to mention here that the statutory presumption under Section 113-B of the Act of 1872 is of no use for the State since, the appellants are already acquitted ofr the offence punishable under Section 304-B of the Indian Penal Code. The law on this aspect is well crystallized. For drawing the presumption under Section 113-A of the Act of 1872, initially the burden is on the prosecution to prove that the deceased was subjected to cruelty within the meaning of Section 498-A of the IPC and only on such successful exercise, the presumption under ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:27:02 ::: 6 APPEAL764.04.odt Section 113-A of the Act of 1872 can be drawn.
8. Though, the incident has occurred on 13.9.1999, the report is lodged on 18.9.1999. Thus, there is a delay of five days in lodging the report. Only because there is delay in lodging the report, that by itself is not sufficient to discard the case of the prosecution in toto. However, it is for the prosecution to supplement the explanation explaining the reasons resulting into lodging of the first information report at belated stage. The delay can be explained in the first information report itself or it can be explained during the course of the trial by adducing oral evidence in that behalf.
9. In the present case, the first information report (Exh.65) is totally silent as to why immediately the first information report could not be lodged. Similarly, none of the prosecution witnesses are offering any sort of explanation as to why they were deprived of lodging the first information report promptly. Lodging the first information report promptly always rules out embellishment and possibility of false implication.
10. On the contrary, perusal of the evidence of the ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:27:02 ::: 7 APPEAL764.04.odt prosecution witnesses shows that there was an opportunity for the prosecution witnesses to lodge and/or to report the acts of cruelty at the hands of the appellants to the police authorities.
PW1 Anil Ulhe, after getting the information about death of his sister Smita, had been to village Virul (Ronghe), the matrimonial place of the deceased along with his two brothers, one of whom is examined as PW2 Sunil Ulhe, sister Surekha (PW3), mother Pramila (PW5) and 2-3 other persons. Evidence of PW1 Anil Ulhe shows that even the mediator in the marriage one Appaji Deshmukh was also present in the house of the appellants. His evidence also shows that when the inquest and spot panchanamas were prepared, he and others were present. Not only that, he was also present at the time of post mortem in the hospital. In spite of the opportunity was being there to report the acts of cruelty or harassment to the deceased at the hands of the appellants, nothing was disclosed. In that behalf, the evidence of Investigating Officer PW6 Nana Pimpale shows that prior to registration of the crime, when he made inquiries with the various relatives of the deceased, none of them made any complaint regarding cruelty to the deceased. Thus, it is crystal clear that for the reasons best known to the prosecution witnesses, they did not complain against any of the ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:27:02 ::: 8 APPEAL764.04.odt appellants with the police authorities. It is to be noted here that PW1 Anil states in his evidence that one of his brother-in-law by name Pradeep Deshmukh is a Police Constable. This assumes importance and has its own impact on the prosecution case.
11. The first information report is never a substantive piece of evidence. It can be used for corroboration or for contradiction of the maker of the same. In the first information report, it is stated that whenever the deceased used to come to her maternal house, that time she used to disclose to him and his mother about the happening to her in her matrimonial home. It is also stated in the first information report that on 26.8.1999, on account of Raksha Bandhan, Sunil (PW2), the elder brother went to Virul (Ronghe) and at that time deceased disclosed the ill-treatment to him. Similarly, it is stated that deceased disclosed to Surekha (PW3) about the illicit relations.
12. From the witness box, PW1 Anil is silent that the deceased has disclosed to him or to his mother about the ill- treatment at the hands of appellant no.1. He is also silent in his evidence that the deceased disclosed to him about the illicit relations. ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:27:02 :::
9 APPEAL764.04.odt What is deposed from the witness box is that when his brother Sunil (PW2) went at Virul (Ronghe) for Rakhi Pournima, that time deceased disclosed to him that accused were giving trouble and she was beaten for Rs.50,000/- and informed about the illicit relations to sister Surekha (PW3). Thus, the evidence of PW1 Anil is of no use since it would be in the category of hearsay evidence.
13. PW2 Sunil Ulhe states in his evidence that when he went to the house of Smita for Raksha Bandhan, that time he noticed that her health was not good and she was in tension and that time appellant no.3 was cooking food. He is silent in his evidence that Smita disclosed any type of ill-treatment at Virul (Ronghe).
14. Evidence of PW3 Surekha Deshmukh shows that she did not claim that deceased disclosed the fact of illicit relations. What she states in her evidence is about the household troubles. Therefore, the statement made in the first information report as well as in the evidence of PW1 Anil that Smita disclosed about illicit relations of her husband with appellant no.3 Sandhya is not supported by Surekha herself.
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15. PW4 Jaya Deshmukh is the other elder married sister of the deceased. She claims that Smita disclosed to her about the illicit relations of her husband. However, in her cross-examination, she admits that for the first time, she is stating about it before the police. We cannot forget that her husband is a police constable. She has admitted that she did not inform about the said fact to anybody except to police. Further, neither PW1 Anil nor PW2 Sunil state that they were informed by PW4 Jaya regarding said aspect. Further, the evidence in that behalf is also too general in nature.
16. Evidence of PW5 Smt. Pramila Ulhe, the mother of the deceased also do not support to the prosecution case. On the contrary, in her cross-examination, she admits that when she had been to the matrimonial house of Smita after her death, police made inquiries with her as to whether she has any complaint about the death of Smita and she disclosed that they don't have any complaint against the appellant.
17. PW1 Anil Ulhe states in his evidence that if there is any trouble then normally such thing has to be brought within the knowledge of the mediator to mediate in the matter and if the ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:27:02 ::: 11 APPEAL764.04.odt mediation fails, filing of the complaint with the police can be resorted to. From the evidence of prosecution, it is clear that one Appaji Deshmukh was mediator in the marriage of Smita. PW1 Anil has admitted that there was no problem or any difficulty in seeking help from Appaji Deshmukh, however no such steps were taken nor any complaint was lodged with the police.
18. From the post mortem report, it is crystal clear that Smita committed suicide. The question is whether the present appellants were responsible for driving Smita to such an extent where she was required to take the decision to cut short her life.
19. As observed in the preceding paragraphs of this judgment, it is crystal clear that the evidence of the prosecution witnesses is too short, too sketchy and too general in nature, by which a Court should come to the conclusion that deceased Smita was subjected to cruelty of any type. In this background the evidence of PW3 Surekha shows that deceased Smita was having skin problem. In fact (PW3) Surekha had been to Dr. Neeta, a Skin Specialist along with Smita. She has also admitted in her cross- examination that Smita was having problem of skin reaction and also ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:27:02 ::: 12 APPEAL764.04.odt she was having trouble from piles and therefore, for that one Vilasrao Deshumkh of village Kohala used to bring Ayurvedic medicine for her.
20. From the quality of evidence of the prosecution witnesses, in my view, the learned Judge of the Court below has committed a mistake in recording a finding that Smita was subjected to cruelty and since she committed suicide within a span of seven years of marriage, the presumption can be drawn against the appellants.
21. In that view of the matter, re-appreciation of the entire prosecution case, leads me to record a finding that the prosecution has utterly failed to prove that Smita was subjected to cruelty and due to such cruelty only, she committed suicide. Consequently, I pass the following order :
ORDER
1. The appeal is allowed.
2. The judgment and order of conviction passed by the learned 4th Ad-hoc Additional Sessions Judge, Amravati, dated 30.11.2004 in Sessions Trial No.138/1999 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:27:02 ::: 13 APPEAL764.04.odt convicting the appellants for the offences punishable under Sections 498-A and 306 read with Section 34 of the Indian Penal Code, is hereby quashed and set aside.
3. Appellants - (1) Dhananjay Pralhadrao Deshmukh (2) Anil Pralhadrao Deshmukh (Amol Pralhadrao Deshmukh) and (3) Sou. Sandhya W/o Anil Deshmukh (Sou. Sandhya W/o Amol Deshmukh) are hereby acquitted of the offences punishable under Sections 498-A and 306 read with Section 34 of the Indian Penal Code.
4. Bail bonds of appellants stand cancelled.
5. With this, the criminal appeal is allowed and disposed of.
JUDGE Diwale ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:27:02 :::