The State Of Maharashtra vs Bhimrao Gangaram Potdar & Anr on 15 May, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1244 OF 2002

State of Maharashtra ] … Appellant/
(Orig. Complainant)
Versus

1. Bhimrao Gangaram Potdar, ]
Age 32 yrs., Occu. Driver ] … Dead

2. Baban Gangaram Potdar. ]
Age 43 yrs., ] … Abated

3. Sou Chandra Eknath Bhamkar, ]
Age 36 yrs., Occu. Housewife. ]
All R/p. Kushire, Tal. Panhale, ]
Dist. Kolhapur. ] … Respondents

Mr. Deepak Thakare, PP for State – Appellant.
None for Respondents.

CORAM :- G. S. KULKARNI, J.

DATE :- 15 MAY 2017

JUDGMENT :-

1. This appeal by the State impugns the judgment and order
dated 09/07/2002 passed by the learned 2nd Ad-Hoc Additional Sessions
Judge, Kolhapur whereby the respondents – accused, stand acquitted of
the offences punishable under Sections 498A, 306, 504, 323 and 201
read with 34 of the Indian Penal Code (for short, ‘IPC‘).

2. Accused no.2 – Baban Potdar expired during the pendency
of the trial. By an order dated 25/07/2001, the proceedings against him
were held to be abated. The office report indicates that during the

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pendency of this appeal, accused no.1 – Bhimrao Potdar had also expired
and thus the appeal against him too stands abated. Accordingly, the
appeal is required to be adjudicated only against respondent no.3 /
accused no.3.

3. Facts necessary for adjudication of this appeal may stated
as under :-

Deceased Chhaya was the daughter of PW 1 Sonabai
Tukaram Sonar. The deceased was married to accused no.1 in the year
1991. The couple had two issues from the marriage, a son and a
daughter. The case of the prosecution is that the accused was ill-
treating deceased Chhaya on the ground of non-fulfillment of demand
for gold bangles weighing 5 tolas and Rs.50,000/- for repairing the
house. As and when deceased Chhaya visited the house of her mother
PW 1- Sonabai, she disclosed about the beating, abuses and the ill-
treatment to her. PW 1- Sonabai would console Chhaya and send to her
to the matrimonial house. PW 1- Sonabai also pleaded about the
financial condition to the accused persons stating that she was unable
to fulfill their demands.

4. Sometime prior to 24/04/2000, one evening, deceased
Chhaya had come to the house of her mother PW 1. She was
accompanied by her son and daughter. After dinner, deceased Chhaya
wept and informed PW 1 – Sonabai about the harassment meted out to
her by the accused persons and that it was unbearable and miserable
for her to survive. She told PW 1 that the accused had demanded gold
bangles weighing 5 tolas and Rs.50,000/- for construction of house and
had warned that she should not come back without them. However, on
the next day, PW 1 – Sonabai persuaded Chhaya to return to the house

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of accused no.1 and took her to the place where accused no.1 was
plying autorickshaw and left deceased Chhaya with her husband –
accused no.1 and returned to her village. On the following Friday, PW 1

– Sonabai had gone to the house of deceased Chhaya to see if things
were normal, at that time, children and husband of deceased Chhaya
were in the house. Deceased Chhaya, falling on the shoulders of PW 1,
told PW 1 that husband – accused no.1 and sister-in-law Chandrabai –
accused no.3 had beaten her at night and they also uprooted her hair
and threatened that she would not remain alive and they would kill her.
Even on such complaint of deceased Chhaya, PW 1 – Sonabai again
consoled her and asked deceased Chhaya to wait for good days, and
returned to her village.

5. On 24/04/2000 at 8.00 a.m. when PW 1 – Sonabai was in her
house, the nephew of accused no.1 – Bhimrao and other two unknown
persons came to her house in a vehicle and informed that deceased
Chhaya was admitted at the Civil Hospital, Kolhapur, as she was
suffering from vomiting and dysentery and informed PW 1 – Sonabai and
others should immediately accompany them. PW 1 – Sonabai and her
two sons Vasant and Ashok, her brother Vithoba Potdar, brother-in-law
Balkrishna and his wife and son-in-law Ravindra came to the C.P.R.
Hospital, Kolhapur. When they alighted from the vehicle, Bhimrao told
them that deceased Chhaya had consumed poison on the earlier day and
she died when being treated. They were informed that the dead body
was kept in the post-mortem room. Thereafter, post-mortem of the dead
body was performed. On the same day, PW 1 – Sonabai lodged a report
at 17.15 hours at Kodoli Police Station. An offence under
C.R.No.24/2000 came to be registered against the accused under
Sections 498A, 306, 323 and 504 read with 34 of IPC.

READ  Umeshbhai Jagjivanbhai Pithva & 4 vs State Of Gujarat & on 1 August, 2017

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6. The investigation was handed over to Mr. Sampatrao Patil,
API – PW 7 attached to Kodoli Police Station. PW 7 visited the spot of
incident and prepared a spot panchanama. He also recorded the
statements of witnesses. On 24/04/2000 at 21.15 hours, he arrested
accused nos.1 and 2 and recorded the statements of seven witnesses
from village Fejivade. On 25/04/2000, PW 7 arrested accused no.3. On
10/05/2000, API Patil received the post-mortem report. On 15/05/2000,
he forwarded the viscera to the Chemical Analyzer (for short, ‘CA’),
Pune. After completion of investigation, a charge-sheet came to be filed
against the accused on 13/06/2000 before the J.M.F.C., Panhala. The
offences being exclusively triable by the Court of Sessions, the learned
J.M.F.C. committed the case for a trial before the Sessions Court at
Kolhapur. However before framing of the charge, accused no.2 died on
02/04/2001. By an order dated 25/06/2001 passed by the learned
Sessions Judge, the proceedings against accused no.2 were ordered to
have abated. Accused nos.1 and 3 pleaded not guilty and claimed to be
tried.

7. To bring home the guilt of the accused, 7 witnesses were
examined on behalf of the prosecution. Also, the statements of accused
under Section 313 of Code of Criminal Procedure (for short, ‘Cr.P.C.’)
came to be recorded. Accused Bhimrao had taken the defence of total
denial. Accused no.3 – Chandrabai had taken a defence that she was
staying at Mumbai and she had no concern with the case and that she
being the sister of accused no.1 – Bhimrao, a false case was lodged
against her. On behalf of the accused, it was urged that except the
testimony of PW 1 – Sonabai, there was no other evidence on record as
also the report of the CA was in favour of the accused. According to the
report of the CA, no poison was detected in the samples sent by the

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police and thus, there was no evidence about cause of death of
deceased Chhaya and therefore, the accused cannot be convicted. The
learned trial Judge, examining the evidence, has come to a conclusion
that none of the offences charged against the accused were proved and
accordingly has acquitted the accused of the offences punishable under
Sections 498A, 306, 504, 323 and 201 read with 34 of the IPC.

8. I have heard Mr. Thakare, learned PP for State. With his
assistance, I have perused the evidence and record as also I have gone
through the impugned judgment.

9. PW 1 – Sonabai Tukaram Sonar, in her evidence, has stated
that after her marriage, deceased Chhaya, joined the house of the
accused. At that time, her brother-in-law accused no.2 – Baban and her
sister-in-law accused no.3 – Chandra were staying with her deceased
daughter Chhaya. She further deposed that accused no.3 was staying
separately from her husband and she was staying along with accused
no.1 – Bhimrao. PW 1 – Sonabai further deposed that she visited the
house of deceased Chhaya on the said friday to see how Chhaya was
pulling on. At that time, Chhaya fell on her and told her that on the
previous night, ‘accused persons had beaten her and uprooted her hair
and she was told to bring gold bangles weighing 5 tolas and Rs.50,000/-
and that they would kill her if she would not fulfill her demands. At that
time, PW 1 – Sonabai pleaded with the accused and told him that she
was unable to fulfill their demands and thereafter returned to her
village. In the cross-examination, as against accused no.3 – Chandra,
PW 1 – Sonabai has stated as under :-

“7. I have stated before the police while lodging the report
that, Chandrabai was staying with accused Bhimrao till the

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death of my daughter Chaya. I have stated before the police that
accused Chandrabai was not living with her husband and she
was staying with accused Bhimrao. I cannot assign any reason
as to why said fact is not mentioned in my report. It is not true
to say that accused Chandrabai is staying in Mumbai since 1987
along with her husband. I have stated before the police that my
daughter Chaya told me that I should give Rs.50,000/- and
golden bangles to the accused or else the accused would kill her.
It is not true to say that, I deposed falsely that on Friday I had
gone to meet my daughter Chaya and at that time, she made
complaint to me against the accused. It is not true to say that, I
deposed falsely that prior to the incident, on Tuesday, my
daughter came to me and at that time also, she made complaint
to me against the accused-persons.”

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Apart from the above version, there is no other material in the evidence
of PW 1 – Sonabai against accused no.3 – Chandra.

10. PW 7 – Sampatrao Shamrao Patil is the API attached to
Kodoli Police Station, Kolhapur and was the I.O. He has stated in his
evidence that on 24/04/2000, he received a telephone message from
C.P.R. Police Station that the deceased had died due to consuming
poison and there was complaint of her relatives about her death. He
accordingly, after making station diary entry, went to the C.P.R. Hospital
at Kolhapur. Thereafter he went to C.P.R. Hospital Police Chowky where
mother of deceased Chhaya orally lodged a report before him. It was
reduced into writing. On the basis of this report, he registered an
offence vide C.R.No.24/2000 and conducted the investigation. He
prepared spot panchanama. He recorded statements of seven witnesses
of village Kushire. On 24/04/2000, at 21.15 hours, he arrested accused
nos.1 and 2. On 25/04/2000, he arrested accused no.3. On receiving

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the post-mortem report on 10/05/2000, he included the said report in
the case-papers and on 15/05/2000, he sent the viscera to CA at Pune.
On 13/06/2000, on completion of investigation, he filed the charge-sheet
under his signature. In the cross-examination, he has deposed that it
was revealed that accused no.3 was married and her husband was
staying at Mumbai.

11. PW 2 – Ashok Tukaram Sonar is the brother of deceased
Chhaya. His evidence is similar to the evidence of PW 1 – Sonabai. He
has deposed that after marriage of deceased Chhaya, for about two
years, there was no ill-treatment to deceased Chhaya. Thereafter
accused Bhimrao and accused Chandrabai started abusing and beating
his sister Chhaya on the ground that she should bring golden bangles
weighing 5 tolas and Rs.50,000/- for construction of the house. He
deposed that whenever Chhaya used to come to his village, she would
tell them about the ill-treatment to her. The rest of the testimony of PW
2 is not different from what PW 1 – Sonabai has deposed. However, he
does not attribute or make a specific reference of any role of accused
no.3 – Chandrabai to connect her to the crimes in question.

12. PW 3 – Dhondiram Krishna Sonar is the cousin brother of
deceased Chhaya who was residing in a house adjacent to the house of
PW 1 – Sonabai. The testimony of PW 3 – Dhoniram is not different from
what has been deposed by PW 1 and PW 2 that initially after marriage,
for a period of two years, Chhaya was leading a happy marital life and
thereafter she was ill-treated by her husband Bhimrao for a demand of
gold bangles weighing 5 tolas. However, in his evidence, he does not say
anything about the demand of Rs.50,000/- as stated by PW 1 – Sonabai.
PW 3 – Dhondiram has deposed that deceased Chhaya was coming to

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the village after marriage and used to inform about the ill-treatment and
harassment and that it was going for about 8 to 9 years.

13. The other witnesses examined on behalf of the prosecution
are PW 4 – Subhash Tayappa Banage who is the Police Constable
attached to Shahupuri Police Station, Kolhapur. He has prepared the
inquest panchanama as witnessed by two panchas. PW 5 – Sanjay Arjun
Chavare is a Police Constable attached to Shahupuri Polilce Station. He
had recorded the statement of PW 2. The prosecution also examined Dr.
Ganesh Prabhakar Dhovalshank – PW 6 who was working at the C.P.R.
Hospital at the relevant time when deceased Chhaya came to be
admitted on 24/04/2000 at 12.50 a.m. as brought by her husband. He
has deposed that he examined deceased Chhaya on her admission to the
hospital and was informed that the patient had consumed poison half an
hour before she was brought to the hospital, as disclosed to him by the
relatives of the deceased. He has stated that deceased Chhaya was in a
semi-conscious condition and her general condition was poor and that
she was not responding to any painful stimuli. Her pulse was feeble.
He has stated that Chhaya died at 1.10 a.m. He also performed post-
mortem on the dead body and found foul smelling white coloured liquid
in the stomach and intestine. Post-mortem report was prepared by him
and issued under his signature. He states that the viscera was
preserved and the opinion was reserved. He has deposed that the
report of the CA, it did not show presence of poisonous substance in the
viscera. Nothing of any further relevance is elicited from the cross-
examination.

READ  Bhagwan Swarup And Anr vs State Of Rajasthan on 28 August, 1991

14. On the above evidence, it can surely be concluded that
there is no evidence to bring about any incriminating connection of

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accused no.3 – Chandrabai to the crimes in question and to conclude
that accused no.3 – Chandrabai is guilty of committing the charged
offences punishable under Sections 498A, 306, 504, 323 and 201 of the
IPC. What is significant is that,y it has clearly come in the evidence of
the cousin brother of deceased Chhaya PW 3 – Dhondiram, that the ill-
treatment to deceased Chhaya was going on for a period of 8 to 9 years
for the demand of golden bangles weighing 5 tolas not being fulfilled. It
is explicit from the evidence of PW 1 – Sonabai, PW 2 – Ashok and PW 3 –
Dhondiram, that deceased Chhaya was being harassed on account of
non-fulfillment of demand of golden bangles weighing 5 tolas and
Rs.50,000/- this on the backdrop that initially for about two years,
everything was fine and all this trouble started only after the initial two
years of marriage. In her statement recorded under Section 313 of
Cr.P.C., accused no.3 has denied the prosecution story to be false. When
asked that why the witnesses are deposing against her, her answer is
that being the relative of deceased Chhaya, the witnesses are deposing
falsely against her. Also when asked in Question No.21 as to what she
wanted to say about the case by the prosecution, she has stated that
being the sister of accused no.1, false case has been lodged against her.
She has stated that she is staying at Mumbai and had no concern with
this case. This version of accused no.3, cannot be discarded in the
absence of any contrary incriminating evidence to connect accused
no.3 to the crimes in question.

15. Thus, it needs to be concluded that there is no evidence to
show that accused no.3 – Chandra was residing along with accused
nos.1 and 2. There is no evidence to show the specific instances of any
harassment by accused no.3 or any other acts pointing out to the guilt
of accused no.3 to have committed the offences in question. Thus, the

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very background that for 8 to 9 years, no complaint whatsoever was
made by deceased Chhaya or any of her relatives including PW 1 –
Sonabai against accused no.3, also becomes a relevant factor. Mere
assertion of PW 1 and probably the mechanical repetition of the same
by PW 2 and PW 3, certainly would not be sufficient to bring home the
guilt of accused no.3 to have committed the offences in question. The
learned PP is also not in a position to show anything which would
require this Court to displace and interfere with the findings of the trial
Court to come to a different conclusion. I therefore do not find any
perversity or illegality in the findings of the learned Trial Judge against
accused no.3 – Chandra as in my opinion, the same are correctly
recorded by the learned Trial Judge and considering the case of the
prosecution against accused no.3 – Chandra, the evidence of PW 1 –
Sonabai, mother of deceased Chhaya, and the evidence of PW 7 – API
Sampatrao Patil, the Investigating Officer, are relevant.

16. Resultantly, the appeal needs to fail. It is accordingly
dismissed.

17. Bail bond of accused no.3 – Chandra shall stand cancelled.

(G. S. KULKARNI, J.)

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