State Of Maha. Thru Pso Borgaon vs Sandip Laxman Sarkate & Anor on 1 June, 2017

Judgment apeal650.06

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO. 650/2006.

State of Maharashtra,
through Police Station,
Borgaon Manju, Tq. and
District Akola. ….APPELLANT.

VERSUS

1. Sandip Laxman Sarkate,
Aged adult.

2. Laxman Shivram Sarkate,
Aged about 66 years

All residents of Eklara,
P.S. Borgaon Manju,
Tq. and District Akola. ….RESPONDENTS
.

———————————–
Ms. Geeta Tiwari, A.P.P. for Appellant.
Mr. N.S. Warudkar, Advocate for Respondents.
————————————

CORAM : B.P. DHARMADHIKARI
AND Z.A. HAQ, JJ.

DATED : JUNE 01, 2017.

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ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)

By this appeal filed under Section 378 of the Criminal Procedure

Code, the Appellant – State Government questions judgment and order of

acquittal dated 24.08.2006, delivered by the 2nd Adhoc Additional Sessions

Judge, Akola in Sessions Trial No. 14/2005. The Sessions Court has

acquitted accused nos. 1 to 7 before it of offence punishable under Sections

498A, 304-B and 306 read with Section 34 of Indian Penal Code.

2. Facts show that deceased Sou. Varsha wife of Sandip – respondent

no.1 (accused no.1) died on 07.07.2004. Her marriage with Sandip was

performed on 22.05.2004. Her body was found hanging in residential house

of respondent no.1 Sandip and respondent no.2, who happens to be father of

respondent no.1. First Information Report was lodged on 09.07.2004 and

then offence as mentioned above, came to be registered under Sections

498A, 304-B, 306 read with Section 34 of Indian Penal Code.

3. Though there were total 8 accused persons, present appeal has

been preferred against husband – Sandip and father-in-law Laxman, of

deceased Varsha. Her father-in-law was accused no.3; her brother-in-law

and sisters of her husband or wife of said brother were other accused. Their

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acquittal has not been questioned in the present matter.

4. Learned A.P.P. appearing for the appellant State submits that

death has taken place in very short time after marriage and it being

unnatural, heavy burden was cast upon the accused persons to explain the

same. They point out that the prosecution witness specifically depose about

the demand and ill-treatment. Much stress is placed upon the fact that

though death occurred at 11 a.m., it has been reported at about 19.45 hours.

Learned A.P.P. submits that this time gap itself is sufficient to put heavy

burden upon respondents and their failure to discharge it is sufficient to

convict them.

5. Shri Warudkar, learned Counsel appearing for respondent nos. 1

and 2 submits that neither ill-treatment nor demand has been proved in the

matter. On the contrary, immediately after death was reported, spot

panchnama and inquest was carried out. Chits written by the deceased

exonerating her husband and in-laws were seized by the police. Deceased

was being harassed by her step mother and therefore, she committed

suicide. He submits that prosecution has not alleged any delay in submitting

report by respondents. As the deceased herself has exonerated her in-laws,

presumption prescribed either under Section 498-A or under Section 304-B,

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does not arise. The police authorities accepted that initially on 07.07.2004,

a marg was registered bearing No.27, but, then no proof in support thereof

has been produced. He contends that there is no delay in reporting the

death and an entry of accidental death was taken immediately by P.W.8

Digamber Ravrale, investigating officer. He points out that the prosecution

witness i.e. the relatives of Varsha on maternal side were very much present

on 07.07.2004 itself, and still did not file any police report complaining of

ill-treatment or demand of money till 09.07.2004. The report lodged on

09.07.2004 is belated and by way of an after thought.

6. Prosecution has examined Dadarao Dongre, uncle of deceased

Varsha as P.W.1. His evidence shows that after getting message of death of

Varsha all of them arrived at village Eklara at about 1 p.m. to 1.30 p.m.

Thereafter they reached place of Varsha between 3 to 4 p.m. He could not

explain why in his police statement fact that Varsha was residing jointly with

her father-in-law and other family members did not appear. His cross

examination shows that he was very much aware when spot panchnama or

inquest was drawn and when dead both was sent to Civil Hospital. He has

deposed that he came back to the spot of incident from police station and

there panchnama was drawn by the police. Then in the night he brought the

dead body to Akola for post mortem. Thus, the investigation by police was

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within his knowledge even before post mortem, when he had gone to police

station to lodge report and investigation was going on. Why he could not

lodge a report expressing doubt on accused persons is not clear.

7. P.W.2 – Bhikabai is the neighbour of complainant i.e. father of

deceased. She could not explain why in her police statement fact of

deceased Varsha having trouble from her in-laws did not appear.

8. Perusal of evidence of investigating officer also reveals that he had

seized two chits from the spot of incidence during spot panchnama. Those

chits do not implicate any of the accused persons. This officer has also

seized specimen handwriting of deceased Varsha on 31.08.2004 at

Wadegaon, however, he did not prepare any panchnama about it and could

not explain why he did not prepare it. He could not tell the note book from

which page N-1 was taken out and it was of which standard. He could not

make any inquiry about it. He further accepted that seized specimen

handwriting Q1 and Q2 were not sealed by him. He also stated that he

obtained specimen writing of accused Sandip in 5 copies while he was in

custody.

9. Prosecution has examined as P.W.9 Ravindra Annaji Gole,

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Assistant examiner of document. He has examined the disputed writings.

He marked those documents at Exh.Q1 and Q2. He was given specimen

writing of Sandip [accused] and he marked them as S1 to S5. Admitted

writing of deceased Varsha was also given to him, which he marked as

Exh.N1 to N4. His opinion Exh.87 shows that red encircled writing marked

as Exh.Q2 is written by writer who wrote Exh.S1 to S5. He could not

express any definite opinion as regards identity or otherwise of red

encircled writing mark Exh.Q1 with Exh. S1 to S5 or N1 to N4 for want of

sufficient features for scientific examination. In document Exh.Q2 (Exh.90),

it is mentioned that deceased was unwilling to cohabit with Sandip. She

was asking for divorce. According to P.W.9 Ravindra, this exhibit is written

by writer who wrote Exh.S1 to S5. This document does not in any way

implicate accused persons. Exh.Q1 (Exh.89) in relation to which expert

could not express any definite opinion shows that she was not blaming

anybody and was committing suicide. This document therefore, exonerates

appellants.

10. Trial Court itself has found that no ill-treatment was established

and delay in lodging report (FIR) on 09.07.2004 has not been properly

explained, acquittal of appellants cannot be said to be perverse. Trial Court

has in paragraph nos. 20 and 21 of its judgment considered all these aspects

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and its finding that there was no ill-treatment appears to be just and proper.

11. Though the learned A.P.P. has pointed out that death has taken

place at about 11 a.m. and its report has been lodged at 19.45 hours.,

perusal of evidence of prosecution witness PW.1, itself shows that he was

aware of the death before 1 O’clock in the afternoon. Report on the basis of

which A.D. has been recorded is not proved to show that death took place at

11 O’clock in the afternoon on 07.07.2004. Death information report

(Exh.83) has been used to prepare police report to Civil Surgeon at Exh.79.

Post Mortem report (Exh.59) also mentions time of death as per police

report. Contention of learned A.P.P. that death has been reported late to

police has not been put to accused while recording their statement under

Section 313 of Criminal Procedure Code.

12. In this situation, considering the limited scope available to this

Court in appeals under Section 378 of Criminal Procedure Code, we are not

inclined to interfere in the matter. Hence the following order :

ORDER

(i) The appeal is dismissed.

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(ii) Bail bonds, if any, furnished by the respondents, are

cancelled.

(iii) Seized muddemal property be dealt with as directed by

the trial Court after appeal period is over.

JUDGE JUDGE

Rgd.

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