Anandrao Janardan Hiware vs State Of Mah.Thr.P.S.O.Kothari on 11 July, 2017

Judgment

apeal278.01 31

1

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

CRIMINAL APPEAL NO.278 OF 2001

Anandrao s/o Janardan Hiware,
Aged about 35 years, Resident
of – Tohgaon, Police Station Kothari
District Chandrapur. ….. Appellant.

:: VERSUS ::

The State of Maharashtra, through
Police Station Officer, Kothari,
District Chandrapur. ….. Respondent.

Shri Anil S. Mardikar, Senior Counsel with Ms U.R. Tanna,
Adv. for the appellant.
Shri N.B. Jawade, Addl. P.P. for the respondent/State.

CORAM : V.M. DESHPANDE, J.
DATE : JULY 11, 2017.

ORAL JUDGMENT

1. Being aggrieved by judgment and order of

conviction passed by learned 3rd Additional Sessions Judge,

Chandrapur dated 13.9.2001 in Sessions Case No.150 of 1995,

…..2/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

2

the appellant is before this Court.

2. By the impugned judgment and order, the

appellant is convicted for the offence punishable under

Section 306 of the Indian Penal Code and for that he is

directed to suffer rigorous imprisonment for two years and to

pay a fine of Rs.1,000/- and in default of payment of fine

amount to suffer rigorous imprisonment for two months.

The appellant is also convicted for the offence

punishable under Section 498A of the Indian Penal Code and

for that he is directed to suffer rigorous imprisonment for one

year and to pay a fine of Rs.500/- and in default of payment of

fine amount to suffer rigorous imprisonment for one month.

3. The prosecution case as it disclosed during the

course of the Trial, is under:

PW7 Police Sub Inspector Subhash Anandrao

…..3/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

3

Shinde was posted at Police Station Kothari in the year

1994-95.

PW1 Ramchandra Fakira Bawane came to the

police station and lodged his oral report Exhibit 33. As per

the said oral report, PW1 Ramchandra was having 2 sons and

2 daughters. Deceased Sangeeta was eldest amongst

daughters. Her marriage was performed in the year 1993 with

appellant Anandrao s/o Janardan Hiware who is a resident of

same village. Out of wedlock, couple was blessed with one son

Swapnil. At the time of lodging of the report, his age was 9

months.

The report further recites that deceased Sangeeta,

her husband appellant Anandrao, and her mother-in-law

Sundarabai used to stay jointly. She was subjected to cruelty

at the hands of appellant Anandrao and mother-in-law

Sundarabai on some domestic issues and that was reported to

…..4/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

4

PW1 first informant Ramchandra. It is further stated in the

first information report that 2 months prior to lodging of the

report, appellant Anandrao poured kerosene on person of

deceased Sangeeta. That time, brother-in-law of deceased

Sangeeta took her to the house of police patil of village

Tohgaon. There it was decided not to lodge report about said

incident with the police. The first information report states

that an understanding was given at that time to appellant

Anandrao.

The report further states that on 18.5.1995 PW1

first informant Ramchandra and his wife had been to Rajura

for attending marriage ceremony. On 20.5.1995, one Vinayak

Tukaram Niwalkar came to him and informed that his

daughter is missing. On getting such information, PW1 first

informant Ramchandra came to village Tohgaon and searched

for his daughter. That time, it was informed by appellant

…..5/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

5

Anandrao that Sangeeta is missing from the time when she

had left the house for washing clothes. Therefore, PW1 first

informant Ramchandra went to a well and found clothes in a

basket. The police were informed and the police fished out

the body of deceased Sangeeta. As per the first information

report, deceased Sangeeta committed suicide due to ill-

treatment which she used to received for domestic reasons.

4. PW7 Police Sub Inspector Subhash Shinde,

thereafter, registered an offence against appellant Anandrao

and his mother Sundarabai vide Crime No.12 of 1995 for the

offence punishable under Section 306 read with Section 34 of

the Indian Penal Code. The printed first information report is

at Exhibit 50. After recording the first information report,

PW7 Police Sub Inspector Subhash Shinde proceeded to the

spot of incident which was a well situated near bus stand of

village Tohgaon. The well belongs to Grampanchayat

…..6/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

6

Tohgaon. The said well was situated at a distance of about

300 feet from the road of Tohgaon. The well was surrounded

by shrubs. The spot panchanama of the spot of incident was

recorded in the presence of panchas and it is at Exhibit 38.

After fishing out dead body of deceased Sangeeta from the

well, the inquest was also done over the dead body vide

inquest panchanama Exhibit 27. The dead body of deceased

Sangeeta was also referred to the hospital for postmortem.

PW7 Police Sub Inspector Subhash Shinde also recorded

statements of various witnesses. On 22.5.1995 during the

course of investigation, PW1 handed over a complaint dated

10.5.1995 Exhibit 41. Also, on 24.5.1995 PW7 Police Sub

Inspector Subhash Shinde seized a Kararnama Exhibit 35.

The viscera was also sent to the chemical analyzer for its

chemical analysis. In the meanwhile, on 22.5.1995 appellant

Anandrao and his mother accused No.2 Sundarabai were

…..7/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

7

arrested on 22.5.1995. After completion of other usual

investigation, the final report was presented in the Court of

learned Judicial Magistrate First Class at Chandrapur who

noticed that the offence is exclusively triable by Court of

Session. Therefore, the committal order was passed. After

landing the case in the Court of learned Sessions Judge at

Chandrapur, it was registered as Sessions Case No.150 of 1995.

Learned Sessions Judge at Chandrapur, below Exhibit 17,

framed a charge against appellant Anandrao and his mother

Sundarabai for the offences punishable under Sections 498A

and 306 read with Section 34 of the Indian Penal Code. They

both denied the charge.

5. In order to bring home the guilt of the accused

persons, in all 8 witnesses were examined by the prosecution

and also relied upon the various documents duly proved

during the course of the Trial. After a full dressed Trial,

…..8/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

8

learned Sessions Judge at Chandrapur acquitted accused

Sundarabai from the offences. However, learned Sessions

Judge convicted appellant Anandrao and sentenced him as

observed in the opening paragraph of his judgment.

Though Sundarabai was acquitted, the State

preferred not to file appeal against her acquittal.

6. I have heard learned senior counsel Shri Anil S.

Mardikar with Ms U.R. Tanna for the appellant and learned

Additional Public Prosecutor Shri N.B. Jawade for the

respondent/State in extenso. With their able assistance, I

have gone through the notes of evidence and other proved

documents on record.

7. Learned senior counsel Shri Anil S. Mardikar for

the appellant submits that looking to evidences of PW4

Gajanan Krishna Khamankar and PW7 Police Sub Inspector

Subhash Shinde, possibility of an accident is not ruled out. He

…..9/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

9

further submits that reliance on Exhibit 35 a Kararnama

dated 19.3.1995 cannot be placed in view of the fact that by

virtue of the said agreement earlier ill-treatment as per the

prosecution stands condoned and there is no evidence to show

that after execution of the said Kararnama,

deceased Sangeeta was subjected to any cruelty. He placed

reliance to the reported decisions in the cases of Atmaram s/o

Raysingh Rathod ..vs.. State of Maharashtra, reported at

(2013)12 SCC 286 ; Sambhaji Soma Rupnavar ..vs.. The State of

Maharashtra, reported at 2013 ALL MR (Cri) 507, and Prakash

M. Adhau ..vs.. State of Maharashtra, reported at 2006 CRI L.J.

2226 to submit that even the prosecution has not proved that

appellant Anandrao is guilty of commission of offences

punishable under Sections 306 and 498A of the Indian Penal

Code.

8. Per contra, learned Additional Public Prosecutor

…..10/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

10

Shri N.B. Jawade for the respondent/State submits that

Exhibit 35 clearly shows that appellant Anandrao was guilty

of committing atrocities on the deceased and, therefore, she

has committed suicide on 20.5.1995 by jumping into a well. He

submits that learned Judge of the Court below has

appreciated evidences of the prosecution witnesses in its

correct perspective and, therefore, the present appeal be

dismissed.

9. PW8 Dr. Priyadarshan Baburao Muthal was

medical officer on 22.5.1995 at General Hospital, Chandrapur.

On the said day, dead body of deceased Sangeeta was brought

to the hospital for postmortem. PW8 Dr. Priyadarshan and

Dr. Mrs. Shete conducted postmortem over the dead body of

deceased Sangeeta. The autopsy surgeons noticed that dead

body of deceased Sangeeta was in a state of decomposition.

Therefore, they could not give a definite opinion in respect of

…..11/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

11

cause of death However, viscera was preserved for its

chemical analysis. postmortem report is available on record

at Exhibit 64. No external injuries over the dead body of

deceased Sangeeta were noticed by the autopsy surgeons.

When PW8 Dr. Priyadarshan Muthal was in the witness box,

chemical analyzer’s report Exhibit 67 was brought to his

notice and as per the said chemical analyzer’s no poison was

detected. After perusing said chemical analyzer’s report, the

autopsy surgeons opined that death of deceased Sangeeta was

due to drowning.

10. The dead body of deceased Sangeeta was fished

out from the well of Grampanchayat, village Tohgaon. As per

the evidence of PW8 Dr. Priyadarshan Muthal, cause of death

of deceased Sangeeta is drowning. In view of this fact, there

cannot be any dispute that deceased Sangeeta died an

unnatural death. The marriage of deceased Sangeeta was

…..12/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

12

performed, as per the first information report, in the year

1993 whereas her dead body was fished out on 21.5.1995.

Thus, within a span of 2 years she met her an unnatural death.

11. Death can be homicidal, suicidal, or accidental

one. The prosecution is not launched against the present

appellant that death of deceased Sangeeta was homicidal and

he is responsible for homicidal death. Therefore, the question

of homicidal death is completely ruled out.

12. According to the prosecution, death of deceased

Sangeeta is suicidal one and she committed suicide due to ill-

treatment which she received at the hands of appellant

Anandrao. On the contrary, it is the defence of appellant

Anandrao that Sangeeta died accidental death.

13. There are no eyewitnesses in the prosecution case

to show that in their presence deceased Sangeeta jumped into

the well. From the evidences of PW1 Ramchandra Bawane

…..13/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

13

and PW4 Gajanan Khamankar, pancha witnesses to the spot

panchanama, it is clear that washed clothes were found in a

basket kept on parapet wall of the well. It would be useful to

reproduce version as appearing in the evidence of PW4

Gajanan Khamankar and also the version as appearing in the

evidence of PW7 Police Sub Inspector Subhash Shinde to

appreciate the contention of learned senior counsel Shri Anil

S. Mardikar for the appellant in respect of possibility of

accidental death. PW4 Gajanan Khamankar states as under:

“The well had a cement foundation or flooring
of about 1½ feet which is encircling it. The
foundation is laid with full cement plaster.
From this foundation level, the height of
parapet wall is 1½ feet. The well does not
have any angles or pullies for drawing of
water. It is correct to say that the water from
the well is required to be drawn up physically
both hands by standing on the parapet wall.”

PW7 Police Sub Inspector Subhash Shinde states

in his evidence in that behalf as under:

…..14/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

14

“It is true to sat that water used to be drawn
out from the said well directly by standing on
the parapet wall of the well as there was just
one wheel attached to the iron angle. It is true
to say that if one sleeped while drawing the
well water, in the said manner one could fall
down in the well.”

From these consistent evidences of the

prosecution witnesses, it is clear that one has to stand on a

parapet wall of 1½ feet from the ground level of the said well

to fetch the water. The evidence of pancha witness shows that

the well does not have any angle or pulley. However, evidence

of PW7 Police Sub Inspector Subhash Shinde shows that one

wheel is attached to the iron angle. There is nothing available

on record to show that said wheel was in a working condition.

This Court would attach much importance to the evidence of

PW4 Gajanan Khamankar since he is a resident of village

Tohgaon itself to show that at the relevant time one was

required to fetch water physically by both hands by standing

…..15/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

15

on the parapet wall of the well.

14. In view of aforesaid evidences, possibility of

sleeping inside the well while fetching water is not completely

ruled out. Once the material brought on record suggesting

possibility of accidental death is not completely ruled out,

benefit has to be extended in favour of the appellant.

15. Insofar as an offence punishable under Section

498A of the Indian Penal Code is concerned, the first

information report is totally silent that deceased Sangeeta

was subject to cruelty at the hands of appellant Anandrao on

account of any demand. What is stated in the first

information report is, that she was subjected to beating on

some domestic issues. Further, from the substantive evidence

of PW1 first informant Ramchandra Bawane, shows that there

were no demands from appellant Anandrao or on account of

any monetary demand deceased Sangeeta was subjected to

…..16/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

16

cruelty. In the last paragraph of his examination-in-chief he

has stated that at the time of marriage though amount of

Rs.20,000/- was given, appellant Anandrao used to demand

Rs.10,000/- from deceased Sangeeta. However, this particular

version is proved omission.

16. The prosecution has examined PW2 a neighbour

Sambha Budhaji Landage who has turned hostile. However,

his evidence shows that there used to be quarrels between

accused No.2 Sundarabai and deceased Sangeeta. PW3 a

Sarpanch Ramesh Sadashio More, who also turned hostile,

has stated that there used to be quarrels in between appellant

Anandrao and his deceased wife Sangeeta.

From these evidences, it is clear that there was no

demand from appellant Anandrao. Quarrels were in the

nature of domestic reasons. Merely because there were

quarrels in between couple on domestic issues, that does not

…..17/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

17

constitute an offence punishable under Section 498A of the

Indian Penal Code.

17. Learned Additional Public Prosecutor Shri N.B.

Jawade for the respondent/State heavily relies on Exhibit 35 a

Kararnama. This document is proved by PW5 Maroti

Sadashio Kadukar. He has turned hostile. Merely because the

witness has turned hostile, only on that count the evidence of

such witness cannot be discarded to the extent that evidence

of such witness is supportive of the prosecution, can be

considered, is the law laid down by the Honourbale Apex

Court in the case of Khujji @ Surendra Tiwari …vs… State of

Madhya Pradesh, reported at (1991) 3 SCC 627.

18. According to learned Additional Public Prosecutor

Shri N.B. Jawade for the respondent/State, Exhibit 35, which

is in the nature of Kararnama, shows that deceased Sangeeta

was subjected to cruelty. However, even the said document is

…..18/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

18

conspicuously silent that ill-treatment was on account of any

demand. This document is dated 19.3.1995. The evidence of

PW1 Ramchandra Bawane shows that after execution of this

document, deceased Sangeeta resumed her co-habitation with

appellant Anandrao. Picking up this thread from the

prosecution case, it is the submission of learned senior

counsel Shri Anil S. Mardikar for the appellant that by

execution of this document Exhibit 35 earlier ill-treatment

stands condoned and for that learned senior counsel, in my

view, has rightly relied on the law laid down by the

Honourable Apex Court in the case of Atmaram s/o Raysingh

Rathod ..vs.. State of Maharashtra cited supra. In Atmaram’s

case, an undertaking Exhibit 47 was executed on 17.4.1988

whereas drowning of deceased Purnabai took place on

15.7.1988 i.e. within a span of 3 months. It is the submission of

learned senior counsel for the appellant that after resumption

…..19/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

19

of co-habitation till unfortunate incident of drowning, there is

no evidence to show that during this period of 3 months the

deceased was subjected to cruelty except a bald statement of

PW1 Ramchandra Bawane.

19. Though Exhibit 41 dated 10.5.1995 is available on

record, which shows that on 10.3.1993 appellant Anandrao

poured kerosene on deceased Sangeeta. According to the

prosecution, it is under the signature of deceased Sangeeta.

The said report was addressed to the Kothari Police Station.

However, record shows that actually the report was not

lodged with the Kothari Police Station. Said report Exhibit 41

is coming on record during the course of investigation by PW7

Subhasb Shinde. His evidence shows that during inquiry,

PW1 first informant Ramchandra handed over copy of Exhibit

41 to him. Learned Judge of the Court below, in my view, has

rightly discarded the said document since PW1 first informant

…..20/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

20

Ramchandra is totally silent about said report in his FIR

lodged against the appellant. and also evidence of PW1

Ramchandra does not have any reference about same.

20. PW1 first informant Ramchandra has admitted

that no report was lodged with the police after resumption of

co-habitation. Non-filing of report after resumption of co-

habitation has its own importance. Exhibit 35 is not only

signed by appellant Anandrao, deceased Sangeeta, and

pancha witnesses but signed by PW1 first informant

Ramchandra also. Exhibit 35 was required to be executed

because according to the prosecution, deceased Sangeeta was

subjected to cruelty and only on execution of Exhibit 35

deceased was allowed to have co-habitation with appellant

Anandrao.

Had there was any ill-treatment after execution of

Exhibit 35 and prior to incident of drowning, it would have

…..21/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

21

been a natural reaction on the part of PW1 Ramchandra to

report the matter to the police or at least to Panchayat before

whom Exhibit 35 was executed to point out them that in spite

of execution of Exhibit 35, still appellant Anandrao is

persistent in committing ill-treatment to deceased Sangeeta.

Nothing such has happened. In my view, therefore,

importance cannot be attached to bald statement made during

the course of recording of evidence of PW1 first informant

Ramchandra that after execution of Exhibit 35 ill-treatment

continued. Therefore, I reject the evidence of PW1 first

informant Ramchandra that there used to be ill-treatment

even after execution of document Exhibit 35.

21. It is the obligation on the part of the prosecution

to prove that deceased Sangeeta was subjected to cruelty

within the meaning of Section 498A of the Indian Penal Code.

On such proof only, the prosecution can press into service

…..22/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::
Judgment

apeal278.01 31

22

statutory presumption as available to it under Section 113A of

the Evidence Act. In absence of proof of cruelty, merely

because deceased Sangeeta met with an unnatural death

within a span of 2 years of her marriage, ipso facto the

prosecution cannot take recourse to Section 113A of the

Evidence Act. Re-appreciation of the prosecution evidences

shows that there was no ill-treatment after resumption of

co-habitation after execution of document Exhibit 35 till the

date of unfortunate incident on 20.5.1995. Further, the

evidences as are brought on record in this case show that

there is a possibility of accident and accidentally deceased

Sageeta sleeping inside the well is not completely ruled, that

leads me to pass the following order:

ORDER

i) The criminal appeal is allowed.

ii) Judgment and order passed by learned 3 rd

…..23/-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::

Judgment

apeal278.01 31

23

Additional Sessions Judge, Chandrapur dated

13.9.2001 in Sessions Case No.150 of 1995 is hereby

set aside.

iii) The appellant is acquitted of the offences

punishable under Sections 306 and 498A of the

Indian Penal Code.

iv) The Bail Bonds of the appellant stand cancelled.

JUDGE

!! BRW !!

…../-

::: Uploaded on – 15/07/2017 16/07/2017 00:04:13 :::

Leave a Comment

Your email address will not be published. Required fields are marked *