Bombay High Court
Homraj S/O Balaji Thakre And Another (In ... vs The State Of Maharashtra, Through ... on 19 September, 2019
Author: V. M. Deshpande
Bench: V. M. Deshpande
1 212-J-APEAL-233-11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.233 OF 2011
APPELLANTS : 1. Homraj s/o Balaji Thakre,
Aged about : 40 years,
Occu - Cultivation.
2. Parvatabai w/o Balaji Thakre,
Aged about : 57 years,
Occu - Household,
Both R/o Rammandir Ward,
Sindewahi, Tah. Sindewahi,
Distt. Chandrapur.
(Presently in Jail).
// V E R S U S //
RESPONDENT : The State of Maharashtra,
Through Police Station Officer,
Police Station Sindewahi,
Distt. Chandrapur.
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Ms. Divya Joshi, Advocate h/f Shri S. V. Sirpurkar, Advocate for
appellants.
Shri M. J. Khan, Additional Public Prosecutor for respondent-State.
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CORAM:- V. M. DESHPANDE, J.
DATED : 19/09/2019.
ORAL JUDGMENT :
1. By the present appeal, the appellants are challenging the judgment and order of conviction passed by the learned Additional Sessions Judge, Chandrapur dated 28/04/2011 in Sessions Case No.89/2008. By the impugned Judgment and ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 01:00:37 ::: 2 212-J-APEAL-233-11 order, the appellants were convicted for the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment of two years and to pay a fine of Rs.500/- each and in default of fine, to suffer further simple imprisonment of one month. Insofar as their conviction under Section 304-B read with Section 34 of the Indian Penal Code is concerned, they were directed to suffer rigorous imprisonment of seven years and to pay a fine of Rs.1,000/- each, in default of payment of fine, to suffer further rigorous imprisonment of two months.
2. Initially, an intimation was given by the appellant No.2 (Exh.28) on the basis of which accidental death was registered with Police Station, Sindewahi on 15/01/2008 under Section 174 of the Code of Criminal Procedure. In enquiry, Shri Vinod s/o Tukaram Rokde (PW-12) went to the spot and prepared Spot Panchnama. As per the report, deceased - Uma w/o Homraj Thakre when went to answer the nature's call, she fell accidentally in a well. Investigating Officer took out body from the well and conducted inquest panchnama (Exh.30). He also seized articles as per the seizure panchnama (Exh.32). The dead body of Uma was ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 01:00:37 ::: 3 212-J-APEAL-233-11 sent for post-mortem and Dr. Sachin Sitaram Borkar (PW-9) conducted post-mortem and gave post-mortem report (Exh.36). As per the post-mortem report, the cause of death was asphyxia due to drowning. On 17/01/2008, father of deceased Laxman s/o Yashwant Bhajbhuje (PW-1) came and lodged oral report (Exh.14) on the basis of which, the offence was registered vide Crime No.6/2008 for the offence punishable under Sections 498-A, 304B and 306 r/w Section 34 of the Indian Penal Code. The printed first information report is at Exh.56. The Investigating Officer, thereafter recorded the statements of various witnesses and after completion of investigation, filed charge sheet.
3. The case was committed to the Court of Sessions. The learned Judge of the trial Court framed charge against both the appellants for the offences punishable under Sections 498-A, 304-B, 306 r/w Section 34 of the Indian Penal Code. The appellants denied the charge and claimed for their trial. In order to prove its case, prosecution has examined in all 12 witnesses. After appreciation of the prosecution case, the learned Judge of the Court below passed the impugned Judgment. ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 01:00:37 :::
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4. Heard Ms. Divya Joshi, learned counsel for the appellants and Shri M.J.Khan, learned Additional Public Prosecutor for the State. Both the learned counsel vehemently submitted their respective briefs and prayed for respective reliefs in their favour.
5. In view of the findings given by Dr. Sachin Sitaram Borkar (PW-9) in post mortem report (Exh.36) that the cause of death is due to asphyxia due to drowning, it is clear that the death of Uma is unnatural death. There is no dispute that the date of marriage of Uma with appellant No.1 is 13/05/2007 whereas Uma died on 15/01/2008. Thus, the death of Uma was within a span of seven years from the date of her marriage. According to learned counsel for the appellants, Uma met with accidental death whereas, as per the submission of learned Additional Public Prosecutor, death was suicidal one and the death being unnatural within a span of seven years, there is presumption in favour of prosecution, in view of Section 113-B of the Evidence Act.
6. The burden heavily lies on the shoulder of the prosecution to prove its case. As per the prosecution, Uma ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 01:00:37 ::: 5 212-J-APEAL-233-11 committed suicide due to ill-treatment and demand of money at the hands of appellants. To activate the legal presumption, the prosecution is required to prove that Uma was subjected to cruelty. Not only that the cruelty was of such a nature to drive her to commit suicide.
7. In the present prosecution case, Laxman Bhajbhuje (PW-1), the father of deceased Uma, who has lodged report, did not support the prosecution. The neighbours namely; Sau. Pushpa Ramdas Bharadkar (PW-4), Reena w/o Rajendra Bharadkar (PW5), Dipawali d/o Vishwanath Kawle (PW-6), Shalu w/o Keuram Karkade (PW-8) and Sindhu Ramchandra Sahare (PW-11) also did not support the prosecution.
8. The learned Judge of the Court below convicted both the appellants in view of evidence of PW-2-Madhukar s/o Yashwant Bhajbhuje, uncle of deceased; PW3 Kishor s/o Onkar Bhajbhuje, cousin brother of deceased primarily.
9. In the oral report (Exh.14), there is reference that at the time of settlement of marriage, the parents of deceased gave ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 01:00:37 ::: 6 212-J-APEAL-233-11 Rs.17,000/- through Omkar Vitthal Bhajbhuje and one Venudas Babaji Shahare. To prove this, it was expected from the prosecution to examine those persons. However, those two persons are not examined.
10. According to the prosecution, on two occasions, Uma came to her parental house, firstly on the occasion of "Akhadi" and secondly, on the occasion of "Bhaubij".
11. As per the evidence of Madhukar Yashwant Bhajbhuje (PW-2), he along with his wife and nephew Roshan had been to maternal house of Uma to fetch her for "Akhadi". At that time, it was told to him that since it is a paddy sowing period and operation of paddy crop is going on, she could be taken for the said work. As per the evidence of Madhukar, he, his wife and Roshan stayed for 8 days in the maternal house of Uma and during this period, as per the evidence of Madhukar, Uma disclosed that she was subjected to ill-treatment. If the evidence of Madhukar is believed, Uma told him that the appellants were not liking that Uma should speak to any of the neighbour and on that count, she was maltreated by her husband. According to Madhukar, after 8 ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 01:00:37 ::: 7 212-J-APEAL-233-11 days, Uma was brought to her parents' house and as per the evidence of Madhukar, Uma also narrated this fact to her parents. After "Akhadi" festival, Uma went back to her maternal house for cohabitation.
Mother of Uma is not examined. Laxman s/o Yashwant Bhajbhuje (PW-1) did not support the prosecution nor corroborates the claim of Madhukar Yashwant Bhajbhuje (PW-2) that Uma narrated about the ill-treatment.
As per the evidence of Madhukar, next visit of Uma was at the time of Bhaubij and at that time, it was disclosed by Uma that there was demand of Rs.25,000/-. If Madhukar's evidence is scanned, then it is clear that when he stayed for good 8 days in the maternal house, during that time, there was no demand to her or to the parents of Uma through him. Even his evidence is conspicuously silent that during those 8 days, he personally noticed ill-treatment.
In the cross-examination, Madhukar has deposed as under :-
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8 212-J-APEAL-233-11 "It is true that, when we stayed in the house of Uma, within that period Uma used to go in the field with the husband, mother-in-law and father-in-law and used to come with them. It is true that, thereafter all the persons used to take dinner and later on went to sleep. It is true that, at Sindewahi during those 8 days, no frankly talk was taken place between me and Uma. It is true that, during those 8 days, cohabitation of husband and wife was going on nicely."
12. From the aforesaid, it is clear that there should be a reasonable apprehension in the mind of any judicial person that when this prosecution witness stayed for 8 days, it would have been disclosed to him by Uma about ill-treatment. The learned Judge of the Court below has failed to attach and give weightage to this piece of admission brought on record during the course of cross-examination. In view of aforesaid admission, there is no doubt in my mind to reject the claim of Madhukar that when he stayed for those 8 days in maternal house of Uma, there was any disclosure to him about the ill-treatment.
13. Insofar as ill-treatment and demand as claimed by Madhukar is concerned, his evidence appears to be an improved version as he was silent on those aspects when his police statement was recorded. Cumulatively, therefore, I am of the view that it would be unsafe to rely on the testimony of Madhukar for recording conviction.
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14. The evidence of Kishor s/o Onkar Bjajbhuje (PW-3) and evidence of Madhukar are contrary to each other inasmuch as, as per Madhukar's evidence, he along with his wife and Roshan went to the house of Uma to fetch her for "Akhadi". He does not claim that at any point of time prior to one month of "Makar Sankrant", anybody went to the house of Uma to fetch her. As per the evidence of Kishor Bhajbhuje when he and the brother of Uma went to maternal house to bring her for "Makar Sankrant", at that time, accused persons demanded Rs.25,000/-. Thus, for the first time, the element of demand of Rs.25,000/- has been introduced through this witness at the time of "Makar Sankrant" which is inconsistent with the entire prosecution case. Therefore, there is no difficulty to reject this evidence.
15. The evidence of Dewaji s/o Sadashiv Laakde (PW-7) is hardly supportive to the prosecution case since, though it is claimed that Uma was subjected to ill-treatment, he was not knowing the reasons for ill-treatment. This witness claims that ill- treatment was disclosed to him by Uma herself. Neither Madhukar nor any other witness corroborates that when Uma was at parental house at Wadadha, that time she could meet this prosecution ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 01:00:37 ::: 10 212-J-APEAL-233-11 witness. The evidence of this prosecution witness is general in nature. That does not take the case of the prosecution anywhere. The evidence of Pundlik Vithoba Sahare (PW-10), a mediator also does not inspire confidence since none of the prosecution witness supports his claim that he called Uma for tea at his house when he was at Wadadha.
16. On re-appreciation of entire evidence on record, it is crystal clear that the prosecution has utterly failed to prove that there was ill-treatment to Uma and the demand and both were such that there was no option for Uma, but to commit suicide.
17. In this context, the defence of the accused persons has some force inasmuch as from the Spot Panchnama (Exh.29) clearly shows that the well in which drowning took place, was not having any para-pit wall. So accidental slip in the well is not completely ruled out.
18. On re-appreciation of the entire prosecution case, I pass the following order.
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ORDER
I) Appeal is allowed.
II) The Judgment and order dated 28/04/2011
passed by Additional Sessions Judge, Chandrapur in Sessions Case No.89/2008 is quashed and set aside. III) The appellants are acquitted of the offences punishable under Sections 498-A, 304-B read with Section 34 of the Indian Penal Code.
IV) The bail bonds of appellants who are on bail shall stand cancelled.
JUDGE Choulwar ::: Uploaded on - 20/09/2019 ::: Downloaded on - 21/09/2019 01:00:37 :::