Bombay High Court
Sanjay @ Balu Shankar Thorat vs Satate Of Mah.Thr.Pso Buldana on 16 January, 2019
Author: V.M. Deshpande
Bench: V. M. Deshpande
1 APEAL271.05.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 271 OF 2005
APPELLANT : Sanjay alias Balu S/o Shankar Thorat
Aged 28 years, Occupation
R/o Sategaon, Bhusari, Tah. Chikhli,
Dist. Buldhana
VERSUS
RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Chikhali,
District Buldhana
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Mr. Anand S. Jaiswal, Senior Advocate with Mr. Shishir Dongre,
Advocate for the appellant
Mr. Nitin S. Rao, A. P. P. for respondent/State
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CORAM : V. M. DESHPANDE, J.
DATE : JANUARY 16, 2019.
ORAL JUDGMENT
1. By the present appeal, the appellant/original accused no.1, the husband of deceased Nitu, is before this Court since he stands convicted by the learned 1st Ad-hoc Additional Sessions Judge, Buldana on 16.4.2005 in Sessions Case No. 16/2003. By the impugned judgment, the Court below convicted the appellant for the offence punishable under Section 498-A of the Indian Penal Code ::: Uploaded on - 19/01/2019 ::: Downloaded on - 26/03/2020 10:46:01 ::: 2 APEAL271.05.odt and directed to suffer rigorous imprisonment for One year and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for Six months.
2. The appellant was charge-sheeted with his brother Rajendra, mother Vatsalabai and sister Ashabai for the offences punishable under Sections 306, 304-B, 498-A, 506 read with Section 34 of the Indian Penal Code and under Sections 3 and 4 of the Dowry Prohibition Act. Crime No. 180/2002 was registered with Police Station, Chikhali on the written complaint lodged by Tukaram Sakharam Pandhare (PW1). The said complaint is at Exh.41. PI Mohansingh Chavan (PW10) investigated the crime and filed Challan before the learned Jurisdictional Magistrate.
3. The learned Jurisdictional Magistrate found that the offence is exclusively triable by the Court of Sessions. Therefore, the case was committed to the Court of Sessions and after committal, it was registered as Sessions Case No. 16/2003. Appellant Sanjay along with his brother, mother and sister were charged by the learned 1st Ad-hoc Additional Sessions Judge, Buldhana for the offences punishable under Sections 304-B, 306, 498-A and 506 read ::: Uploaded on - 19/01/2019 ::: Downloaded on - 26/03/2020 10:46:01 ::: 3 APEAL271.05.odt with Section 34 of the Indian Penal Code. Though, the charge-sheet was filed for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act, the Charge was not framed for the said offence. All the accused persons abjured their guilt and claimed for their trial. After a full dressed trial conducted against the accused persons, by examining in all Ten witnesses, the Court below acquitted accused nos.2 to 4 from all the charges. Similarly, the learned Judge also acquitted the present appellant for the offences punishable under Sections 304-B, 306 and 506 read with Section 34 of the Indian Penal Code, however, convicted him for the offence punishable under Section 498-A of the Indian Penal Code. Hence, this appeal.
4. I have heard Mr. Anand Jaiswal, the learned senior counsel for the appellant and Mr. Nitin Rao, the learned Additional Public Prosecutor for the State. With their able assistance, I have gone though the record and proceedings and the notes of evidence.
5. The primary submission of Mr. Jaiswal, the learned senior counsel for the appellant is that the Court below has committed an error in convicting the appellant for the offence ::: Uploaded on - 19/01/2019 ::: Downloaded on - 26/03/2020 10:46:01 ::: 4 APEAL271.05.odt punishable under Section 498-A of the Indian Penal Code inasmuch as according to him, since on the same set of facts the learned Judge of the Court below has acquitted the remaining accused persons. He submitted that evidence of the prosecution witnesses is not reliable for convicting the appellant for the said offence. He submitted that evidence of PW1 Tukaram Pandhare does not corroborate the evidence of PW3 Ramrao Pandhare in respect of assault by iron plank on deceased. He also submitted that evidence of PW1 Tukaram and other prosecution witnesses is full of omissions and contradictions, which are brushed aside by the learned Judge of the Court below. He placed reliance on the judgments of the Hon'ble Apex Court in Mangat Ram .vs. State of Haryana, reported in (2014) 12 SCC 595 and in the case of Girdhar Shankar Tawade .vs. State of Maharashtra, reported in (2002) 5 SCC 177 and submitted that the appeal be allowed.
6. Per contra, it is the submission of Mr. Rao, the learned Additional Public Prosecutor for the State that though, the appellant was acquitted for the offences punishable under sections 304-B, 306 and 506 of the Indian Penal Code, the offence under Section 498-A being a distinct offence, the Court below has rightly convicted the ::: Uploaded on - 19/01/2019 ::: Downloaded on - 26/03/2020 10:46:01 ::: 5 APEAL271.05.odt appellant in view of the fact that the prosecution has proved demand of Rs.40,000/- in presence of his nephew Sanjay Pandhare (PW8). He, therefore, submitted that the appeal be dismissed.
7. The deceased was married with the appellant on 19.2.1998 and her dead body was found to be floating in a well situated in the agricultural field on 30.11.2002. During the matrimony, the couple was blessed with one son and one daughter.
8. The report is dated 01.12.2002. In the cross- examination, it is admitted by the first informant PW1 Tukaram, the father of deceased, that typed copy of the first information report was brought by Sanjay Pandhare (PW8), who disclosed to the informant that he brought the said typed copy of the report in consultation with Advocate and the said Advocate had prepared the first information report. It is the admission of PW1 Tukaram that thereafter he read the contents and submitted the report to the police station.
9. From the aforesaid piece of evidence as available on record, it is clear that it is not the version of PW1 Tukaram that he ::: Uploaded on - 19/01/2019 ::: Downloaded on - 26/03/2020 10:46:01 ::: 6 APEAL271.05.odt directed and/or disclosed the happening to his nephew Sanjay and on his instructions, Sanjay got it typed in consultation with an Advocate. In my view, this itself brought the entire case of the prosecution in the mist of doubts.
10. In the first information report (Exh.40), it is alleged that Vatsalabai and Ashabai, the mother and sister of the appellant used to abuse the deceased. It is also stated in the report that the appellant used to regularly beat deceased for demand of Rs.50,000/- for purchasing agricultural field and therefore, in the year 1999, the first informant paid Rs.40,000/- to the appellant. In spite of that, all the accused persons continued their acts of causing ill-treatment to the deceased. Resultantly, deceased herself gave a report, however, the matter was compromised and deceased again started residing with the appellant and his other family members. It is also stated in the typed copy of the report (Exh.40) that on 17.11.2002, the appellant came Lakhanwada and met one Onkar Bhandu Chaudhari, to whom it was disclosed by the appellant that if his wife fails to bring the amount, he will kill his wife. It is also stated that on 20.11.2002, the appellant disclosed to Ramrao Pandhare (PW3) that if the amount is not paid, he will finish Nitu. These are the ::: Uploaded on - 19/01/2019 ::: Downloaded on - 26/03/2020 10:46:01 ::: 7 APEAL271.05.odt allegations in the first information report.
11. The first information report is never a substantive piece of evidence. It can be used either for contradicting or supporting maker of the document.
12. In the present case, in respect of the cruelty, according to the learned senior counsel, no independent witness is examined. However, in my considered view, merely because independent witnesses are not examined, the prosecution case need not be viewed under tainted glasses inasmuch as the atrocities on a woman are always within the four walls of the house.
13. In the present case the question that this Court is required to answer is as to whether the prosecution has proved its case against the appellant that he subjected deceased Nitu with cruelty especially when on very same set of facts and set of evidence, the Court below has acquitted other accused persons.
14. From the evidence of PW1 Tukaram, it could be seen that his sister Parvatabai is step mother of the appellant and from the ::: Uploaded on - 19/01/2019 ::: Downloaded on - 26/03/2020 10:46:01 ::: 8 APEAL271.05.odt time of marriage of deceased with the appellant, she was residing with the appellant and his other family members. Not only that, he admitted that even at the time of death of Nitu, Parvatabai was one of the family member of appellant's family. In my view, she being the sister of the first informant, could have been the best witness for the prosecution to throw light as to really there was any ill-treatment to the decesaed as alleged in the prosecution case. However, Parvatabai is not examined by the prosecution.
15. Evidence of PW1 Tukaram is full of omissions in respect of the separate residence and the fact that to Onkar Choudhari it was disclosed by the appellant that if the amount is not paid, he will kill Nitu. In addition to that, Onkar Choudhari is not examined by the prosecution.
16. Though, in the first information report it is stated that it was disclosed to PW3 Ramrao that if the amount is not paid, the appellant will see that Nitu is finished and though, it is the version from the witness box of PW3 Ramrao that such threat was disclosed to him, however, it was found to be improved version since it does not find place in his previous statement recorded during the course ::: Uploaded on - 19/01/2019 ::: Downloaded on - 26/03/2020 10:46:01 ::: 9 APEAL271.05.odt of the investigation. Insofar as the evidence of other prosecution witnesses are concerned, those evidences are of stereo type.
17. No doubt true, it appears from the record that on earlier occasion on 17.7.2001, deceased Nitu had lodged a complaint with Police Station, Chikhali. The said is at Exh.47. Perusal of the said report reveals that it is conspicuously silent about any type of demand. Not only that, deceased Nitu herself submitted an application (Exh.39) to Police Station Officer, Chikhali on 31.7.2001, thereby it was stated that she does not wish to press her own complaint.
18. After 31.7.2001, the prosecution has utterly failed to bring any single instance by which it could be said that the deceased was subjected to cruelty.
19. When on same set of facts and evidence, the other accused persons are acquitted, what shall be the effect of such on the conviction of remaining accused is dealt with by the Hon'ble Apex Court in Mangat Ram's case (cited supra). In my view the said case is fully applicable to the present case.
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20. On re-appreciation of the entire prosecution case and especially when the Court below has acquitted even the appellant for the offences punishable under Sections 304-B, 306 and 506 of the Indian Penal Code, in my view, the Court below has committed an error in convicting the appellant for the offence punishable under Section 498-A of the Indian Penal Code. Consequently, I pass the following order :
ORDER
1. The criminal appeal is allowed.
2. The judgment and order of conviction passed by the learned 1st Ad-hoc Additional Sessions Judge, Buldana on 16.4.2005 in Sessions Case No. 16/2003 against the appellant is set aside.
3. Appellant Sanjay alias Balu S/o Shankar Thorat is acquitted of the offence punishable under Section 498-A of the Indian Penal Code.
4. The appellant, who is on bail, his bail bonds shall stand cancelled.
5. With this, the appeal is allowed and disposed of.
V.M. Deshpande, J.
Diwale ::: Uploaded on - 19/01/2019 ::: Downloaded on - 26/03/2020 10:46:01 :::