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Sunil Ashok Pawar & Anr vs State Of Maharashtra on 3 March, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.315 OF 1997
WITH
CRIMINAL APPLICATION NO.1275 OF 2009

1 Sunil Ashok Pawar
Age 28,

2 Sou. Kamalabai Ashok Pawar
Age 42 yrs.,

Both r/o. Mauli Bungalow,
Ramdas Swami Nagar, Gandhinagar,
Nashik 6. ….Appellants
V/s.
The State of Maharashtra ….Respondents

None for Appellants.
Mrs. A.A.Takalkar, APP for the Respondent-State.

******

CORAM :- SANDEEP K. SHINDE, J.

DATE :- 3RD MARCH, 2018.

ORAL JUDGMENT :-

The Appellants were convicted by the learned

Additional Sessions Judge, Nashik under Sections 498A, 307 read

with Section 34 of the Indian Penal Code and sentenced to suffer RI

for one year and three years respectively by the order dated

17.5.1997 in Sessions Case No.187 of 1996.

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2 That against the aforesaid conviction, this Appeal is

preferred. It appears since period of sentence was less than three

years, during the pendency of this Appeal, execution of sentence

was suspended and the appeal was admitted. It further appears from

the record that both the accused were in custody from 4.7.1996 to

17.7.1996.

3 The Appellant No.1 is the son of the Appellant No.2.

Marriage of the Appellant No.1 with Rekha (“Complainant” for

short) was performed on 26.2.1995. It is the Complainant’s case

that she was subjected to harassment by the Accused as parents of

the Complainant did not offer any customary present to husband in

‘Adhik Mas’ soon after the marriage. It is her case that on this count,

her husband and mother-in-law were taunting and asking her as to

why they were not invited by her parents and extended the

hospitality. It appears from the evidence of Complainant (P.W.2) that

she was disclosing the alleged ill-treatment caused to her to her

parents. However, on assurance given by her Parents that everything

would be normal in the short span of time, she lived and co-habited

with the Accused No.1. It is her evidence that she was beaten up by

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the Accused Nos.1 and 2 in the presence of her relatives on the

small incident in June, 1996.

4 It is the prosecution’s case that on 1.7.1996 when Rekha

was at home, her husband caught hold her hands, gagged her nose

and mother-in-law Kamlabai poured liquid in her mouth.

Resultantly, she became restless, as liquid dripped into her stomach.

It is her specific case that after the incident, Accused left the home

and latched the door of the house from outside. The Complainant

would depose that as the door was latched from outside, she could

not seek help. She would depose that in the circumstances, she

called for help of neighbour whose house was alongside her house

as could be seen from the map produced on record. It is the

prosecution’s case that neighbour, Mrs. Chavan (P.W.3), who heard

loud cry of Rekha, called for help of one P.W.4 Santosh Borade,

rickshaw driver. It further appears that Rekha, was removed by

Mrs. Chavan and rickshaw driver to the clinic of Dr. Vasaikar who

then advised to admit her in the Civil Hospital. It is the prosecution’s

case that she was admitted in the Civil Hospital at 11 am on

1.7.1996. That she was examined by Dr. Matha at 11.50 a.m. and,

thereafter by Dr. Vyavahare. The prosecution has examined Dr.

Ravindra Ashtaputre P.W.5 who had also an occasion to treat Rekha.

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It is his evidence that on 4.7.1996, she was discharged from the

hospital. He deposed as Prosecution Witness and said that it was

the case of poisoning. A sample of omit of Rekha was sent to

Chemical Analyser which resulted in detection of organo

phosphorous insecticides as is evident from the C.A.Report. He

would further depose that had Rekha been not treated in the

hospital within reasonable time, she would have died. He further

stated that he could not tell how much quantity of organic

phosphorous insecticides is sufficient in the ordinary course of

nature to cause death.

5 It also appears from the record that the statement of

Rekha was recorded by the Special Executive Magistrate. Besides

statements of parents were also recorded. That after completing

investigation, charge-sheet came to be filed and Accused were tried.

The learned Judge convicted the Accused of the offences punishable

under Sections 307, 498-A read with Section 34 of the Indian Penal

Code and were sentenced to suffer RI for three years and one year

respectively. It is against this order of conviction, this appeal is

preferred.

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6 Heard the learned APP for the State. None appears for

the Appellants though called out repeatedly.

7 With the assistance of the learned APP, I have gone

through the records and proceedings and the evidence of the

prosecution witnesses.

8 The only question which is required to be answered is;

"Whether the prosecution has proved beyond reasonable doubt that

on the given date whether the Accused administered poison to

Rekha and attempted to cause her death."

It is also required to be answered whether prosecution has

proved that the residue of the poison found on the body of Rekha

was sufficient in the ordinary couse of nature to cause her death.

In my view, second question would be incidental if this Court

comes to conclusion that the prosecution has proved beyond

reasonable doubt that the Accused forcibly attempted to administer

poison to Rekha with an intention to cause her death.

9 Mrs. Takalkar the learned APP has taken me through

the evidence of P.W.2-Rekha and the evidence of neighbour-Mrs.

Chavan (P.W.3). She has also taken me through the evidence of

P.W.4- Mr. Santosh Borade, Rickshaw Driver.

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10 That after going through the evidence of Rekha, it

transpires that soon after the alleged administration of poison to her

by the Accused, the Accused left the house and locked the house

from outside. In the circumstances, she was not able to seek help or

to go out of the house. It is her case that in the circumstances, she

called for help of neighbour, which was responded by Mrs. Chavan

(P.W.3). I have also gone through the evidence of P.W.3 who in her

evidence would state that after hearing her loud cry and sensing

something was serious and wrong with Rekha, she called for the

help of P.W.4-Santosh Borade and requested him to call Doctor. She

would further say that when she entered the house of the accused,

she found doors were not latched and nobody was present in the

house.

Thus, question which falls for consideration is as to whether

the prosecution has proved the fact that soon after the alleged

incident, the Accused left the house and locked the same from

outside so as to prevent Rekha from seeking any help.

11 To ascertain this fact, I have also gone through the

evidence of P.W.4-Santosh Borade, who in his evidence does not

throw any light on this issue. This witness would depose that at the

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request of Mrs. Chavan, he went to call Doctor. When he returned

home, he found Mrs. Chavan was inside the house. In the

circumstances, there is no evidence to hold that after the alleged

incident of administering poison, the Accused locked the house from

outside. It makes evidence of Rekha doubtful. Her evidence does not

inspire confidence. It is not corroborated by other evidence. Thus,

there is absolutely no evidence on record to accept the theory of

Rekha that soon after the alleged incident, Accused left the house

by locking the room from outside.

12 The learned APP has taken me through the evidence of

Investigating Officer as well as previous statements of Mrs. Chavan.

There was an attempt by the prosecution to contradict Mrs. Chavan

with her previous statement recorded by the Police. However, this

contradiction alone is not sufficient to hold that doors of the house

were locked by the Accused from outside after the incident so as to

prevent Rekha from seeking any help.

13 That even otherwise after going through the evidence of

witnesses and particularly that of P.W.4-Santosh Borade and

neighbour, Accused were not found in the house soon after the

incident. Evidence of Rekha (P.W.2) if read along with the evidence

of Dr. Ashtaputre (P.W.5), one more fact surfaces in the evidence is

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that Rekha appears to have not offered any resistance to the alleged

attempt by the Accused to administer poison to her. Her evidence is

silent on this aspect, which appears to be not a natural. More so,

map on record would indicate that house of the Accused was

surrounded by the other houses and at the given point of time also,

it appears window of the house was not closed. That as a natural

conduct, Rekha ought to have offered some resistance. However, she

did not whisper about such resistance in her evidence. More so,

there is no medical evidence on record to indicate or even suggest

remotely that Rekha had offered any physical resistance to the

Accused when they attempted to give poison to her.

14 Thus, after taking the survey of entire evidence on

record, the prosecution has not proved beyond reasonable doubt

that at the first place, there was an attempt by giving poison to

Rekha by the Accused. I hold so, because evidence of Rekha is not

reliable. It appears event of latching of door from outside was set-

up by Rekha to make the intention of Accused louder. Secondly,

there is no evidence to hold beyond reasonable doubt, that after the

incident, the Accused Nos.1 and 2 locked the house from outside.

More so, the evidence of Dr. Ashtapure does not show as to how

much quantity was allegedly given to Rekha by the Accused so as to

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cause her death in the natural course. Thus, in my view, the

prosecution has failed to prove that the Accused attempted to poison

Rekha and caused her death.

15 Accused were also prosecuted and convicted for the

offence punishable under Section 498A of the Indian Penal Code.

Rekha in her evidence would narrate only the incident of not

offering any customary present to her husband in 'Adhik Mas' by her

parents. She would say that on this count both the Accused were

unhappy and were taunting Rekha to extend the appropriate

hospitality to them by her parents. She would further depose that in

June, 1996, she was also beaten up by the Accused Nos.1 and 2 in

the presence of her relatives. In my view, evidence of Rekha is falling

short of requirement to hold that she was recurringly harassed and

was ill-treated at the hands of the Accused for not meeting unlawful

demands or otherwise. In view of these facts, I hold that the

prosecution has equally failed to prove that the Accused were ill-

treating Rekha for not meeting unlawful demands or otherwise so as

to hold them guilty for the offence punishable under Section 498-A

of the Indian Penal Code.

16 It appears from the record that parties had filed

proceedings under the Hindu Marriage Act being Petition No.25 of

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2006 wherein the disputes between the husband and wife has been

settled and marriage between the parties was dissolved.

17 In view of the discussion aforesaid and the reasons

recorded, the Appeal is allowed. Conviction and the sentence

recorded against them in Sessions Case No.187 of 1996 by the

Additional Sessions Judge, Nashik dated 17.5.1997 is hereby

quashed and set aside. Bail bonds executed by the Accused stand

cancelled. Muddemal property, if any, preserved may be disposed of

after three months.

18 The Appeal is allowed and disposed of accordingly and

Criminal Application No.1275 of 2009 therein does not survive and

stands disposed of accordingly.

(SANDEEP K. SHINDE, J.)

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