Bombay High Court
Bhaiyalal Kawadu Pustode And 3 Others vs State Of ... on 3 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. 595 OF 2002
APPELLANTS : 1] Bhaiyalal Kawadu Pustode,
Aged about 45 years, R/o Girola (Heti)
2] Damodhar Sukhadeo Sangrame,
Aged 28 years, R/o Girola (Heti)
3] Mansaram Sampat Kapse,
Aged 37 years, R/o Girola (Heti),
4] Ramchandra Jagan Kapse,
Aged 33 years, R/o Girola (Heti)
VERSUS
RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Sakoli,
Dist. Bhandara
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Mr. Mohammad Ateeque, Advocate for the appellants.
Mr. A. D. Sonak, A. P. P. for the respondent/State.
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CORAM : V. M. DESHPANDE, J.
DATE : APRIL 03, 2018.
ORAL JUDGMENT
The present appeal is directed against the judgment and order of conviction passed by the learned 3 rd Additional Sessions ::: Uploaded on - 13/04/2018 ::: Downloaded on - 14/04/2018 00:17:48 ::: 2 APPEAL595.02.odt Judge, Bhandara, dated 03.10.2002 in Sessions Trial No. 92/1999. By the impugned judgment, the appellants are convicted for the offence punishable under Section 306 read with section 34 of the Indian Penal Code and they are directed to suffer rigorous imprisonment for three years and shall pay fine of Rs.500/- and in default of payment of fine, to suffer rigorous imprisonment for one month by each of them.
2. I have heard Shri Mohammad Ateeque, the learned counsel for the appellants and Shri A.D. Sonak, the learned Additional Public Prosecutor for the State in extenso. Both of them took me through the notes of evidence and the record and proceedings.
3. On 16.1.1999, Dattu Bhanarkar, the cousin brother of deceased Sanjay Dighore gave a report (Exh.21) to Police Station, Sakoli. By the said, it was reported that deceased Sanjay, who was a Teacher at village Girola was missing from 10.01.1999 and in fact missing report dated 15.01.1999 was also filed. During his search on 16.1.1999, Sanjay was found in hanging condition in Girola (Heti) jungle.
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4. Report of Dattu Bhanarkar was registered as accidental death vide A.D. No. 2/1999 with Police Station, Sakoli. PW7 Madhukar Kumbhare, Police Sub-Inspector of the said police station made inquiry in the said A.D. He prepared inquest-cum-spot panchanama (Exh.47). He sent the dead body for post mortem. Thereafter, he and other police personnel went to the room of the deceased at the house of Yashwant Kapgate where deceased was residing as tenant. From there, he seized certain articles under seizure panchanama (Exh.56). Thereafter, they came to Sakoli Cottage hospital. He seized the clothes on the person of the dead body vide seizure panchanama (Exh.23). Then the dead body was handed over to Waman Dighore (PW6), the father of deceased. During the investigation, it was revealed to him that deceased Sanjay Dighore was having love affair with Sandhya Mansaram Kapse, the daughter of appellant no.3. It is to be noted here that on 18.1.1999, said Sandhya also committed suicide and the crime was registered against Waman Dighore and others.
5. Be that as it may. The prosecution has examined in all nine witnesses to prove the guilt of the appellants that they have abetted Sanjay Dighore to commit suicide. Out of them, PW4 ::: Uploaded on - 13/04/2018 ::: Downloaded on - 14/04/2018 00:17:49 ::: 4 APPEAL595.02.odt Purushottam Lanje is a panch, PW7 Madhukar Kumbhare is the Investigating Officer, who has conducted major part of the investigation, PW9 is Girish Totode, who has filed charge-sheet, PW6 Waman Dighore is the father of deceased and PW8 Hemraj Dighore is the brother of the deceased. Their evidence is hardly material to prove instigation and/or abetment at the hands of the accused persons.
6. PW1 is Ramkrushna Gaidhane. He is the Head Master of the school where deceased Sanjay was Assistant Teacher. His evidence shows that on 09.1.1999 when he was present in the house, a rented premises of Sukhdeo Sangrame, the father of Damodar (appellant no.2), one Vimal Kapse came there and asked about Damodhar. She asked to the wife of Damodhar about his whereabouts. There was some altercation between Vimalbai and the wife of Damodhar. Evidence of PW1 Ramkrushna further shows that after 15 minutes, Vimalbai came to the house of Damodhar and she told the wife of Damodhar that Damodhar called her daughter Sandhya and was taken to Sanjay Dighore (deceased). After 35-40 minutes, accused/appellant no.2 Damodhar came along with Sanjay (deceased) on motorcycle. Damodhar asked his wife to provide meal ::: Uploaded on - 13/04/2018 ::: Downloaded on - 14/04/2018 00:17:49 ::: 5 APPEAL595.02.odt to deceased. She declined by stating that Vimalbai has levelled allegations against him that he took her daughter to Sanjay Dighore. Therefore, deceased Sanjay and appellant/accused Damodhar returned from the kitchen. After this, Damodhar gave slaps on Sanjay saying that he has been defamed because of him. Thereafter, appellant no.2 Damodhar rushed towards well to commit suicide, however, his wife, his sister and Sarpanch Shriram Pustode caught him and taken back to the house and he was locked inside the room.
It is the further evidence of PW1 Ramkrushna Gaidhane that thereafter appellant/accused no.1 - Bhaiyalal Pustode came there and he accused deceased Sanjay and asked him as to how many girls he has molested. Thereafter, he beat him by burning wood stick. This prosecution witness snatched the same from him. The quarrel between appellant no.1 Bhaiyalal and the deceased was pacified by this prosecution witness. He asked the deceased to go to his residence, however, appellant no.1 Bhaiyalal stopped him and directed that till arrival of Police Patil, he should not leave the house. Thereafter, appellant/accused no.3 Mansaram and appellant/accused no.4 Ramchandra came there. They also beat deceased Sanjay. At that time, Police Patil Vitthal Tagde came there and he separated Sanjay, the deceased from them. Thereafter, he left the said place ::: Uploaded on - 13/04/2018 ::: Downloaded on - 14/04/2018 00:17:49 ::: 6 APPEAL595.02.odt for his residence.
Evidence of this prosecution witness shows that on Monday, he did not notice Sanjay in the school. Thereafter, he made inquiries about him. That time it was revealed to him that he gave application for leave for three days. Even after three days, Sanjay failed to join his duties. Thereafter, he reported the matter to his superior.
7. PW2 Vithoba Tagde is the Police Patil. He deposed that on 09.1.1999 i.e. Saturday, when he was present in his house, Ramchandra Kapse came to him and informed him that he is called by Sarpanch. It was revealed to him by Ramchandra (PW1) about love affair of Sandhya with deceased. His evidence shows that when he reached to the residence of Gaidhane (PW1), deceased was abusing Sarpanch Shriram Pustode. Even he tried to assault on the person of Shriram Pustode. Appellants/accused Ramchandra Kapse and Mansaram Kapse tried to intervene. Evidence of PW2 Vithoba Tagde shows that at that time deceased was under the influence of liquor. Due to excessive drinking, according to PW2 Tagde, Sanjay fell down and thereafter, deceased took his motorcycle and went away. Thus, there is material variance about happening in the house ::: Uploaded on - 13/04/2018 ::: Downloaded on - 14/04/2018 00:17:49 ::: 7 APPEAL595.02.odt of PW1 Ramkrushna, if the evidence of PW1 Ramkrushna Gaidhane and PW2 Vithoba Tagde is scrutinized.
8. PW3 is Yashwant Kapgate. He is the landlord of deceased Sanjay. His evidence states that he went to the house of Damu Sangrame (appellant no.2) and thereafter deceased Sanjay went to his room on his motorcycle.
9. During the investigation, love letter of Sanjay is seized. It is at Exh.30. Perusal and reading of the contents of the said letter shows that he was in deep love with Sandhya. The said letter recites that since Sandhya was not talking to him, he turned to drinking and is habituated to the same. It is also recited in the said letter that he can end his life for her. From the said, one can guess and gauge the personality of deceased.
10. The law for the offence punishable under Section 306 of the Indian Penal Code is well crystalised by the Hon'ble Apex Court in various pronouncements. It is a settled law that the word "instigate" denotes incitement or urging to do some drastic or ::: Uploaded on - 13/04/2018 ::: Downloaded on - 14/04/2018 00:17:49 ::: 8 APPEAL595.02.odt inadvisable action or to stimulate or incite. Presence of mens rea is, therefore, necessary concomitant for instigation.
11. In the present case, it completely lacks. It appears that the deceased was in love with Sandhya, which was objected by her parents and other villagers on the ground that as Sandhya was his student, it does not look good. Insofar as assault on Sanjay is concerned, as noticed in the earlier paragraph of the judgment, there is material variance in between the evidence of PW1 Ramkrishna and PW2 Vithoba. The post mortem report is at Exh.58. Except ligature mark and the depressed wound surrounding neck, there were no external injuries found by the doctor. Therefore, the evidence of PW1 Ramkrushna is also not corroborated by the medical evidence.
12. In view of above, I am of the view that the case of the prosecution must fail against the appellants. Consequently, I pass the following order :
ORDER
1. The appeal is allowed.
2. The judgment and order of conviction passed by the ::: Uploaded on - 13/04/2018 ::: Downloaded on - 14/04/2018 00:17:49 ::: 9 APPEAL595.02.odt learned 3rd Additional Sessions Judge, Bhandara, dated 03.10.2002 in Sessions Trial No. 92/1999 is hereby quashed and set aside.
3. Appellants - (1) Bhaiyalal Kawadu Pustode ; (2) Damodhar Sukhadeo Sangrame ; (3) Mansaram Sampat Kapse ; and (4) Ramchandra Jagan Kapse are hereby acquitted of the offence punishable under Section 306 read with Section 34 of the Indian Penal Code.
4. Their bail bonds shall stand cancelled.
5. With this, the criminal appeal is allowed and disposed of.
JUDGE Diwale ::: Uploaded on - 13/04/2018 ::: Downloaded on - 14/04/2018 00:17:49 :::