Bombay High Court
Nilesh S/O Karansingh Kokode (In Jail) vs State Of Maharashtra Through Police ... on 24 September, 2019
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.479 OF 2011
Nilesh s/o Karansingh Kokode,
R/o Kandri, Police Station Ramtek,
Dist. Nagpur.
...APPELLANT
...V E R S U S...
State of Maharashtra,
Through Police Station Officer,
Mohadi Police Station, Tahsil - Mohadi,
Dist. Bhandara. ...RESPONDENT
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Mr. R.M. Daga, Advocate for appellant.
Mr. N.B. Jawade, A.P.P. for respondents.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 24.09.2019
ORAL JUDGMENT
1. Appellant was convicted by learned Sessions Judge, Bhandara on 30.09.2011 in Sessions Trial No.58/2008. By the impugned judgment, appellant was convicted for an offence punishable under Sections 498-A and 306 of the Indian Penal Code (IPC). The appellant was sentenced to suffer rigorous imprisonment for three and half years and to pay fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months. Though the appellant was found to be guilt for an offence punishable under Section 498-A of the IPC, no separate punishment was awarded to him.
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2. Heard Mr. Daga, learned counsel for the appellant and Mr. Jawade, learned Additional Public Prosecutor for the State. According to the learned counsel for the appellant, charge under Section 498-A and conviction for the same ought not to have been there at the hands of the Court below inasmuch as according to him on the date of the incident, appellant and the deceased were not husband and wife. It is his submission that there is no iota of evidence available in the prosecution case by which one could reach conveniently to a conclusion that there was an abetment on the part of the appellant to the deceased to commit suicide. He submitted that the Court below has erred in placing reliance on testimony of Kamini Patil (PW3) in respect of the alleged demand of Rs.50,000/-. He, therefore, submitted that appeal be allowed.
Per contra, it is submission of learned Additional Public Prosecutor that marriage between appellant and deceased is an admitted position. There is no legal divorce in between them. Therefore, on the day of incident they were husband and wife. He supports the impugned judgment and prays for dismissal of the appeal.
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3. Appellant and one Nilkant were charged for an offence punishable under Sections 498-A and 306 read with Section 34 of the IPC. In order to prove its case, the prosecution has examined in all ten witnesses. They are; Tukaram Patil (PW1) father of the deceased Sujata. He has lodged report on 26.03.2008, resulting into registration of an offence against two accused. Shobha Gajbhiye (PW2), daughter of Tukaram Patil (PW1) and elder sister of deceased Sujata with whom the deceased used to reside at Ramtek. Kamini Patil (PW3) is sister in law of the deceased. As per her evidence, deceased disclosed her that about two days prior to the commission of suicide there was a demand from the appellant to the extent of Rs.50,000/-. Chudaman Gedam (PW4) is a panch on inquest panchanama (Exh.30). He is also a panch of seizure panchanama (Exh.31), under which a document of "Samzotanama" (Exh.38) was seized. Devidas Gajbhiye (PW5) is brother-in-law of the deceased and who was present at the time of execution of "Samzotanama" (Exh.38). Deorao Tarare (PW6) is a pancha on spot panchanama (Exh.-42) who proved the same. Purushottam Waghmare (PW7) is retired Naiab Tahsildar who went to the Government Hospital, Bhandara to record statement of the deceased, however he could not due to death of the deceased prior to his arrival. Dr. Dheeraj Lambat (PW8) gave ::: Uploaded on - 25/09/2019 ::: Downloaded on - 26/09/2019 01:00:07 ::: 4 apeal479.11.odt intimation (Exh.46) to the police station about death of Sujata. Dr. Avinash Bokade (PW9) has conducted autopsy over the dead body and proved postmortem report (Exh.50). Dinkar Bante (PW10) a panch in whose presence a tin containing Endosulphan, a poisonous substance was seized.
4. In spite of the efforts taken by prosecution, the prosecution could not procure presence of the investigating officer. Consequently, the learned Judge closed the case of the prosecution. In this case, investigating officer's evidence is not on record. After appreciation of the entire prosecution case, the Court below, by the impugned judgment acquitted accused Nilkant and convicted the appellant. Though, Nilkant was acquitted, State chose not to prefer any appeal.
5. Intimation (Exh.46) was given by Dr. Dheeraj Lambat (PW8) to the police station on 22.03.2008. At the relevant time, Dr. Lambat was attached to General Hospital, Bhandara as a Medical Officer. Patient by name Sunjata was brought to the hospital for medical treatment. According to his evidence, the said case was a case of pesticide poisoning and during the treatment Sujata died. Therefore, intimation (Exh.46) was given to Police ::: Uploaded on - 25/09/2019 ::: Downloaded on - 26/09/2019 01:00:07 ::: 5 apeal479.11.odt Station Officer, Bhandara. The intimation (Exh.46) would also show that the dead body was sent for postmortem. Postmortem was conducted by Dr. Avinash Bodke (PW9). The post mortem report (Exh.50) records a finding that, "Poisoning, however, viscera, blood sample, vaginal swab and pubic hairs preserved and send to Chemical Analyst, Nagpur. Uterus send for hystropathology to GMC, Nagpur." Accordingly, Chemical Analyser's (CA) reports are available on record. CA reports do not show semen or spermatozoa on the on the vaginal swab or pubic hair of deceased Sujata. CA reports show that the viscera i.e. stomach loops of intestine, pieces of liver, spleen, kidney (both), lungs (both), found to be containing Organochloro insecticide Endosulfan (Thiodan) and Petroleum Hydrocarbons. Even, the CA reports in respect of clothes of the deceased also found stains of insecticides. However, no poison was found in the blood sample of the deceased.
6. In view of the positive CA reports which show that viscera of the deceased as well as her clothes were found to be detected with Organochloro insecticide Endosulfan (Thiodan) and Petroleum Hydrocarbons, there cannot be any second opinion that death of Sujata was an unnatural one. According to the ::: Uploaded on - 25/09/2019 ::: Downloaded on - 26/09/2019 01:00:07 ::: 6 apeal479.11.odt prosecution, it is the appellant who abetted her to commit suicide and therefore she has consumed poisonous substance resulting into her death. The defence of the appellant is of total denied. The Court is posed with a queation in this appeal is as to whether the prosecution has proved the case beyond reasonable doubt that it is the appellant who has abetted the deceased to consume poisonous substance, therefore, could be said that the appellant is proved to be an abettor, beyond reasonable doubt?
7. Though in the evidence of Dr. Dheeraj Lambat (PW8) it has come on record that on 22.03.2008 he gave the intimation, in my view, the said appears to a typing mistake in respect of the date. Intimation (Exh.46) given by Dr.Dheeraj Lambat is undated. However, below the said intimation there was an endorsement from ASI Waghmare, Buckle No.39, dated 20.03.2008 at 19:00 hours. In addition to that, all other prosecution witnesses and the charge also show that deceased died on 20.03.2008.
8. Though Sujata took her last breath on 20.03.2008 and at the time of her death, her father, her sister, sister-in-law and brother-in-law were present and the inquest on her dead body was performed by police on 21.03.2008. However, none of the ::: Uploaded on - 25/09/2019 ::: Downloaded on - 26/09/2019 01:00:07 ::: 7 apeal479.11.odt relatives of the deceased lodged report against the appellant on the same day. The report was lodged by father of the deceased, Tukaram Patil (PW1) on 26.03.2008. Thus, there is delay of six days. A well explained delay is never the hurdle in the prosecution way. The delay can be explained at various stages i.e. at the time of inquiry, during investigation or even during the trial. In none of these three stages the delay was explained by the prosecution. Therefore, the case of the prosecution will have to be scrutinized with very closely and to see that whether there is an element of implication of the accused falsely.
9. It is an admitted position that the deceased was belonging to a caste, which is a backward class. At the same time, the appellant was belonging to a tribe which is a scheduled Tribe. In view of the marriage certificate (Exh.24) issued by Registrar of Marriage, Nagpur which was admitted by the appellant during the course of trial, it is clear that marriage between appellant and deceased was solemnized at Radhakrishna Mandir, Sitabuldi, Nagpur on 10.01.2008 and accordingly the said was registered. Therefore, prosecution has established that the deceased and the appellant were married with each other. According to the learned counsel for the appellant, their marital relations were snapped ::: Uploaded on - 25/09/2019 ::: Downloaded on - 26/09/2019 01:00:07 ::: 8 apeal479.11.odt mutually by the appellant and the deceased by executing a document "Samzotanama" on 14.03.2008 and therefore on the day of incident, the appellant was not husband of the deceased. Resultantly, neither a charge under section 498-A of the IPC could have been framed against the appellant nor the case could have been tried for that offence.
10. Marriage between appellant and deceased was legal one. Not only that, it was duly registered with the Registrar of Marriage, Nagpur. Admittedly, no proceedings before the competent Court were filed either by appellant or by deceased for securing either a declaration that their marriage a nullity or for a divorce. Learned counsel for appellant heavily relied on "Samzotanama" (Exh.38) which is dated 14.03.2008 to press that there was a divorce. There is nothing on record to show that a custom was prevailing either in the tribe of the appellant or in the caste of the deceased to obtain customary divorce. A party to the nuptial who claims severance of their marital ties on the basis of customary divorce, the burden heavily relies on such a person to prove that there exists such a custom to obtain a divorce in such a fashion or manner. In absence of proof thereof, the Courts will always be reluctant to give stamp of approval to such a divorce. In ::: Uploaded on - 25/09/2019 ::: Downloaded on - 26/09/2019 01:00:07 ::: 9 apeal479.11.odt the present case, there is no iota of evidence either in positive form or by any proof in that behalf. Therefor, in my view, merely by executing a document of " Samzotanama" a legal marriage cannot be dissolved. If that be so, on the day of the incident, status of the appellant and deceased was that of husband and wife and therefore invocation of provisions of Section 498-A of the IPC by the learned trial Court to frame charge for the said offence, in my view, was perfectly justified. Of course, it will be a different aspect as to whether the prosecution has proved charge or not.
11. Tukaram Patil (PW1) is a resident of Mansar. His elder daughter Shobha (PW2) is a teacher and she used to stay at Ramtek. At the relevant time, the deceased was residing with Shobha at Ramtek and she was pursuing her education in Arts faculty and she was a student of B.A. final at Ramtek.
12. Though the marriage between appellant and deceased took placed on 10.01.2008, till her death they were not residing jointly at any place as husband and wife. The prosecution could not bring on record any circumstance or evidence in that behalf. On the contrary, a positive evidence is coming on record that on 20.03.2008 in the morning hours Sujata was present in the house ::: Uploaded on - 25/09/2019 ::: Downloaded on - 26/09/2019 01:00:07 ::: 10 apeal479.11.odt of Shobha, however in the evening when she came she cannot find her presence.
13. "Samzotanama" (Exh.38) also shows that their decision to marry was not good one looking to the different communities from which they are hailing and therefore by the said document, they decided to part their ways. That also shows, therefor even in future they will not reside jointly.
14. By now, by numerous judicial pronouncements, the law of abetment is well crystallized. To prove the charge of abetment, a sterling quality of evidence is required and is expected from the prosecution. In the present case, Kamini (PW3) whose evidence is relied upon by the learned Judge of the Court below to draw the legal presumption under Section 113A of the Indian Evidence Act, shows that prior to two days of the incident, the deceased met her at her house and that time she disclosed that the appellant is demanding Rs.50,000/- and on failure to pay the amount, he was demanding divorce and also he gave a threat to kill, if divorce is not given to him and therefore she was under tension. According to the prosecution, this is an element of abetment to the deceased to commit suicide.
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11 apeal479.11.odt Barring Kamini, neither father of the deceased nor her sister Shobha and Devidas (PW5) speak about the aforesaid aspect. On the contrary, it is the claim of Kamini that she divulged the demand from the appellant as narrated to her by deceased, to her father-in-law i.e. father of the deceased, mother-in-law and sister-in-law. But, they are conspicuously silent on the said issue. Therefore, it would be very difficult to place reliance on uncorroborated version of Kamini. Further, there is an unexplained delay of recording of her police statement.
15. Shobha (PW2), with whom deceased used to reside, does not speak that any time she noticed that deceased was leading life under tension. Had the deceased was leading a tense life due to the execution of Samzotanama (Exh.38), it would not have been missed by her elder sister Shobha who was having ample opportunity to watch the day-to-day behavioral pattern of the deceased. In that view of the matter, in my view uncorroborated version of Kamini that she has noticed that the deceased under tension not only loses importance but also cannot be relied upon.
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16. Devidas (PW5) was present at the time of execution of Samzotanama (Exh.38). The contents were scribed by acquitted accused. His evidence would show that before putting her signature, Sujata read the contents and thereafter signed on the same. Had really Sujata was not ready for executing the document or she was under pressure from the appellant to execute the said document, she would have immediately narrated the said fact her close relative, Devidas who was present at the time of execution of the said document itself.
17. It is also to be mentioned here that it is not the prosecution case that at any point of time there were physical relations between appellant and deceased. The scientific evidence also shows that there was no physical relations between them.
18. The prosecution case is totally silent at which place and at what point of time the demand was made by the appellant to the deceased. As observed, except evidence of Kamini, the entire prosecution case is blissfully silent regarding the demand. There is no evidence available on record to show that the deceased was subjected to any type of cruelty leading her to take the extreme step of life.
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19. On re-appreciation of the entire prosecution as aforesaid, in my view benefit of doubt has to be extended in favour of the appellant inasmuch as the prosecution could not prove its case beyond reasonable doubt that the appellant has indulged in the act which could be termed as abetment to the deceased to commit suicide. Consequently, I pass following order.
ORDER
(1) The appeal is allowed.
(2) The judgment and order dated 30.09.2011
passed by learned Sessions Judge, Bhandara in Sessions Trial No.58/2008 is quashed and set aside.
(3) Appellant is acquitted of the offence punishable under Sections 498-A and 306 of the Indian Penal Code.
(4) The appellant is on bail. His bail bonds
stand cancelled.
JUDGE
srwagh/kahale
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