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Nizar Razzakali Panjwani And … vs The State Of Maharashtra on 12 January, 2018

cri apeal 105-99 .doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 105 OF 1999

1. Nizar Razzakali Panjwani
2. Nadir Razzakali Panjwani (expired)
3. Roshanbhai Razzakali Panjwani (expired)
4. Parwin Nadir Panjwani
res. at Roshan Manzil
Bhoi Galli, House No. 3606,
Nasik, Maharashtra. .. Appellants

v/s.

State of Maharashtra .. ..Respondents

Mr.R.A.Shaikh a/w. Mrs. Swati Margi for the Appellants
Mr.P.H.Gaikwad APP for the respondent.

CORAM : SMT. ANUJA PRABHUDESSAI, J.
JUDGMENT RESERVED ON : 25th September, 2017.
JUDGMENT PRONOUNCED ON : 12th JANUARY, 2018.

JUDGMENT:

1. The aforesaid appellants, who were the accused in Sessions

Case No.120 of 1996 and who shall be hereinafter referred to as the

accused, have challenged the judgment dated 7 th January, 1999

whereby the learned Additional Sessions Judge, Nashik has convicted

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and sentenced them for offence under Section 498A r/w. 34 of the

Indian Penal Code.

2. Factual matrix, as emerges from the record, is that the deceased

Rachana was married to the accused no.1 on 2 nd April, 1995. The

deceased, accused nos.2 and 3 and the accused no.4 are the family

members of the accused no.1. Rachana and the accused no.1

initially resided at Mumbai. They later shifted to Nashik and were

residing along with the other family members. Rachana and

accused no.1 were blessed with a baby girl on 4th January, 1996.

3. It is the case of the prosecution that Rachana had informed her

parents that she was being subjected to cruelty and that the accused

were demanding dowry. She had even addressed letters to her

parents informing them about such demands and cruelty. On 14 th

March, 1996 Rachana called her parents and informed them that

she was being harassed and requested them to take her back. On

receipt of the said information, PW3, PW11 who are the parents of

Rachana and her uncle-PW12 went to the house of the accused and

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brought her back to their house at Nashik. It is alleged that the

accused no.1 had refused to hand over the custody of the minor child

to Rachana.

4. It is alleged that on 18th April, 1996, said Rachana had gone to

meet the accused no.1 to bring back her two months old child. After

she returned home, she informed her grand-mother PW10 Kasturibai

that the accused no.1 had given her a soft drink mixed with poison.

Rachana was in critical condition and was taken to the hospital. She

expired on 19th April, 1996. PW6 Dr. Subhash conducted post-

mortem over the body of Rachana and opined that the death of

Rachana was due to asphyxia as a result of unknown poisonous

substance. Viscera was preserved and was forwarded for forensic

examination.

5. PW3 Dnyaneshwar More, the father of Rachana went to

Panchwati Police Station and lodged the FIR at Exhibit 45. The said

report was recorded by PW8 Shaikh Nazir, who at the relevant time

was the PSO on duty at Panchvati Police Station. He forwarded the

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said report to Bhadrakali Police Station since it pertained to their

jurisdiction. On receipt of the said report, API Choudhari registered

Crime No. 86 of 1996 against the accused for offences under Section

302, 498A r/w. 34 of IPC. Further investigation was conducted by

PW15 PSI Pandurang Sahane. He arrested the accused, recorded

statements of the witnesses and seized all the incriminating material

including three inland letters allegedly written by Rachana to her

parents. He obtained admitted handwriting of Rachana and

forwarded the said letters and the admitted writing to the

handwriting expert and the other incriminating material for chemical

analysis. The viscera of Rachana tested positive to Gafbamate

insecticide propoxur (baygon) and petroleum hydrocarbons. The

handwriting expert also opined that writing in the letters (disputed

writing) tallied with the writing on the pages, stated to be the

admitted handwriting of Rachana. Upon completion of investigation,

PW15 submitted the charge sheet against the accused for offences

under Section 302 and 498A r/w. 34 of IPC.

6. On the case being committed to the Court of Sessions, trial

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court framed the aforesaid charge to which the accused pleaded not

guilty and claimed to be tried. In support of its case, prosecution

examined 15 witnesses. The statements of the accused were

recorded under Section 313 of Cr.P.C. The trial court upon

appreciation of the oral as well as documentary evidence, acquitted

all the accused of offence under Section 302 r/w. 34 of IPC, but held

them guilty of the offence under Section 498A r/w. 34 of IPC. The

learned Sessions Judge sentenced the accused no.1 to undergo

imprisonment for three years with fine of Rs.2000/-. Deceased

accused nos.2 and 3 were sentenced to undergo imprisonment for

two years with fine of Rs.2000/- and three months with fine of

Rs.1000/- respectively, and the accused no.4 was sentenced to

undergo imprisonment for one year with fine of Rs.2000/-. Being

aggrieved by this conviction and sentence, the accused have

preferred this appeal.

7. The accused nos.2 and 3 have expired during the pendency of

the appeal. Hence, the appeal stands abated against these two

accused.

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8. I have perused the records and considered the submissions

advanced by Shri R.A.Shaikh,the learned Counsel for the accused and

Mr. Gaikwad Patil, the learned APP for the State. Before adverting to

the appreciation of evidence and submissions made by the learned

Counsels for the respective parties, it is necessary to state certain

undisputed facts. The deceased-Rachana and the accused no. 1, who

professed different religions, were in love with each other. Rachana

left her parental house and got married to the accused No.1 on 5 th

April, 1995 against the wishes of her parents and the other family

members. After the marriage, Rachana and the accused No.1 stayed

in Mumbai and a couple of months later they returned to Nashik and

started residing alongwith the other family members of the accused

No.1. Rachana and the accused No.1 were blessed with a baby girl

on 4th January, 1996. The parents of Rachana had brought Rachana

to her parental home on 14th April, 1996, while the two months old

child of Rachana continued to be with the accused No.1. Said

Rachana was admitted in the hospital on 18 th April, 1996 and she

expired on 19th April, 1996. The cause of death was stated to be

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asphyxia due to poison.

9. PW3 Dnyaneshwar More, the father of Rachana had alleged

that the accused had demanded money from Rachana and subjected

her to cruelty. There were specific allegations that the accused no.1

had administered poison to Rachana. The learned Trial Court

disbelieved the allegations made by the parents of Rachana that the

accused No.1 had administered poison to Rachana. The Trial Court

held that the prosecution had failed to establish that the death of

Rachana was homicidal. The learned Trial Court therefore acquitted

the accused of the offence under Section 302 of the IPC, to which

there is no challenge. The evidence of prosecution witnesses has to

be appreciated bearing in mind the background of marriage and

aforesaid circumstances.

10. It is the case of the prosecution that Rachana had phoned her

family members and informed them that the accused were

demanding dowry and were subjecting her to cruelty. It is further

alleged that Rachana had also addressed letters to her parents

informing them about such cruelty. On 14 th April, 1996, Rachana

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phoned her parents and informed them that she was being assaulted.

Rachana requested them to come and take her back. The parents and

the maternal uncle of Rachana (PW3, PW11 and PW12) went to the

house of the accused and brought her back. In support of the said

case, the prosecution principally relied upon the evidence of PW3

and PW11, the parents of Rachana, PW10 and PW12, the maternal

grandmother and uncle of Rachana. The prosecution has also relied

upon the testimony of PW2. Subhash Gulve, a neighbour, in addition

to the evidence of PW14 Vishwas Ranjangaonkar, the handwriting

expert.

11. PW3 had stated in his examination in chief that he had received

several telephone calls from Rachana demanding money varying

from Rs.10,000/- to Rs.60,000/- to purchase a rickshaw for the

brother of the accused No.1 and Rs.1,00,000/- for the marriage of

the sister of the accused No.1. However, in his cross-examination he

has stated that Rachana had never told him that the accused were

demanding money and were harassing her for not meeting the

demands.

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12. PW11 Sangita More, the mother of Rachana has deposed that

after Rachana had started residing at her matrimonial home at

Nashik, she had phoned her and told her to meet her near CBS,

Nashik. Rachana had come to meet her at CBS, Nsshik but the

accused No.1 followed her and took her back in a rickshaw. She has

stated that two days later Rachana once again phoned her and told

her that the accused were demanding Rs.15,000/- towards the

expenses of her delivery. Rachana also told her that the accused

were harassing her and demanding Rs.10,000/- to purchase a

rikshaw for the brother of the accused No.1 and Rs.1,00,000/- for the

marriage of the sister of the accused No.1. She has clarified that she

had received the first phone call about 2/3 days after Rachana had

returned to Nashik. PW11 has admitted that she had not stated in

her statement under section 161 Cr.P.C. that Rachana had called her

to CBS Nashik. She had also not stated that Rachana had come to

CBS to meet her and that the accused No.1 had quarreled with

Rachana and taken her back. She had also not stated that after the

said incident Rachana had once again phoned her and told her about

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the demand of money and ill-treatment meted out to her by the

accused. As rightly held by the learned trial judge these material

omissions are sufficient to discredit and discard the evidence of this

witness that Rachana had phoned her and told her about demand of

money and ill treatment.

13. PW11 had also stated that she and her mother i.e. PW10 had

visited Rachana in the hospital after her delivery and that Rachana

had told her that the accused were demanding money to purchase a

rickshaw for the brother of the accused No.1 and for the marriage of

the sister of the accused No.1. However, the evidence of PW11

indicates that the accused No.1 and his mother were present in the

hospital and hence, Rachana could not talk to them freely. The

evidence of PW11 does not corroborate that Rachana had

complained to her mother about any such demands or cruelty by the

accused.

14. PW10-Kasturbai Patil, the maternal grandmother of Rachana

also does not claim that Rachana had told her that the accused had

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demanded money from her or her family members. She has deposed

that Rachana had told her family that she was in need of Rs.15,000/-

for her delivery. Her statement that she had not talked to Rachana

prior to her delivery clearly indicates that she was not personally

aware about any such demands. She has deposed that parents of

Rachana were unable to pay the said amount. The testimony of this

witness therefore does not help the prosecution in proving that the

accused had compelled Rachana to demand money from her family

or that they had subjected Rachana to cruelty for not meeting the

said demand.

15. PW4-Nanak Rani, who is the neighbour of the first informant

claims that Rachana was staying with her parents about a month and

a half prior to her death. During the said period she had visited his

house. She appeared to be very quiet and on being questioned, she

told that her husband and his family members were harassing her

and were compelling her to bring money from her parents. The

evidence of this witness cannot be believed for a simple reason that

it is not the case of the prosecution that Rachana had stayed with her

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parents since about one and a half month prior to the incident. On

the contrary, the evidence on record reveals that Rachana having

married against the wishes of her parents had not been visiting their

house.

16. It is the case of the prosecution that Rachana had written letters

to her parents and informed that the accused were demanding

money and that they were ill treating her. PW3 had handed over

these three letters to PW15-Pandurang Shahane and the same were

attached under Panchanama at Exh.72 drawn in presence of PW-7

Ashok Gaikwad and Yasim Shaikh. PW15 also instructed PW3 to

provide writing of Rachana. Accordingly PW3 gave some pages from

a note book, which were allegedly the handwritten notes of Rachana.

The evidence of PW15 reveals that he had collected admitted

handwriting of Rachana from the first informant and forwarded the

same to the handwriting expert. The said disputed writing was

examined by PW14-Vishwas Ranjangaonkar and he has opined that

the disputed writing tallies with the writing forwarded to him as

admitted writing.

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17. The evidence of the expert witness at the most proves that the

letters (disputed document) and the handwritten notes, which were

stated to be admitted documents, were written by a same person.

The evidence of this witness does not carry forward the case of the

prosecution that these letters were written by Rachana. In order to

prove this fact, it was obligatory on the part of the prosecution to

prove that the writing in the letters tallied with the admitted writing

of Rachana. In other words, the comparison had to be between the

disputed handwriting and the admitted handwriting of Rachana. In

the instant case, the investigating officer had not attempted to

procure admitted handwriting of the deceased Rachana but he had

called upon the first informant to furnish admitted handwriting of

Rachana. The writing provided by the first informant (PW3) was

forwarded to the FSL for comparison without even verifying and

ascertaining that the said writing furnished by the first informant was

in fact the admitted hand writing of Rachana. This material

discrepancy is sufficient to discard the case of the prosecution that

the said letters were in the hand writing of Rachana. In such

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circumstances, the learned Trial Judge in my considered view has

erred in relying upon the said letters.

18. As stated earlier, the evidence on record clearly

reveals that Rachana had married the accused No.1 against the

wishes of her parents. Hence, there was no demand of dowry by the

accused No.1 and his family members either before the marriage or

at the time of the marriage. The complaints of ill-treatment and

demand for money were allegedly made after Rachana started living

with the accused at Nashik. It is to be noted that Rachana as well as

her parents were residing at Nashik despite which Rachana did not

visit her parents. The parents of Rachana also did not visit her after

receipt of the letters. They did not complaint to the police that the

accused were ill-treating Rachana. They did not feel the need to visit

her even during her pregnancy or to bring her home after her

delivery. The aforesaid circumstances indicate that all was not well

between Rachana and her parents and in this background; it is

difficult to believe that Rachana would write letters to her parents

and complain about the accused.

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19. PW3 and PW11 have claimed that Rachana had phoned them

on 14th April, 1996 and told them that she was being assaulted and

requested them to take her back. Accordingly, PW3, PW11 and PW12

visited the house of the accused. PW3 claims that he had gone to the

house of the accused alongwith PW10 and PW12. He claims that

there was some altercation between them and the accused. He

further claims that the accused had snatched the child from the

hands of Rachana. PW3 has stated that he got an impression that

Rachana was severely assaulted; hence, he brought her home. It is

pertinent to note that PW3 had not lodged any complaint against the

accused for having assaulted Rachana. He had also not provided any

medical aid to Rachana. It is also to be noted that testimony of

PW11 and PW12 does not indicate that PW3 had entered the house

of the accused. The evidence of these witnesses is that PW3 and

PW11 had waited outside while PW12 had gone to the house of the

accused to bring Rachana. PW12 had stated that when he entered the

house, Rachana hugged him and told him that the accused were

assaulting her and requested him to take her back. He has admitted

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in his cross examination that he had not stated the said fact in his

statement under Section 161 of Cr.P.C. This is a material omission,

which is sufficient to discredit his version before the Court.

20. The charge against the accused is under section 498A IPC.

Having analyzed and appreciated the evidence, in my considered

view, the prosecution has failed to establish that the accused had

subjected the deceased Rachana to harassment or cruelty. The

prosecution has therefore failed to prove the essential ingredients of

the offence under Section 498 A of the IPC. Hence, the conviction

and sentence imposed against the accused by the impugned

judgment cannot be sustained.

21. Under the circumstances and in view of discussion supra, the

appeal is allowed. The impugned judgment is set aside. The

accused are acquitted of offence under Section 498 A r/w. 34 of the

IPC. Fine amount, if deposited be refunded to the accused. Their

Bail bond stand discharged.

(ANUJA PRABHUDESSAI, J.)

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