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All R/O Pathare Bk vs The State Of Maharashtra on 23 July, 2014

Bombay High Court All R/O Pathare Bk vs The State Of Maharashtra on 23 July, 2014Bench: V.M. Deshpande

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD ou

CRIMINAL REVISION APPLICATION NO. 257 OF 2000 C

1] Savaleram Bhaurao Waghadkar, age 35 years,

2] Bahurao Gangaram Waghadkar, h

age 55 years,

3]

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Jaibai w/o Dadabhau Moharkar, age 40 years,

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4] Tulsabai w/o Bhaurao Waghadkar, All r/o Pathare Bk.,

Tq. Shrirampur, Dist. Ahmednagar …Applicants y

VERSUS

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The State of Maharashtra …Respondent …..

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Shri Pravin Patil, advocate h/f Shri A.D.Shinde, advocate for applicants Shri D.B.Bhange, A.P.P. for respondent …..

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CORAM : V.M.DESHPANDE, J. DATE OF RESERVING

THE JUDGMENT : 30.6.2014 DATE OF PRONOUNCEMENT

OF THE JUDGMENT : 23.7.2014 ::: Downloaded on – 28/07/2014 23:49:30 ::: 2 crra257.00 rt

J U D G M E N T : –

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1] Criminal law was set into motion by Kashinath Nathuji Vaikar by filing his first information report with police station Loni C

on 29.4.1992. Since the first information report was disclosing h

commission of cognizable offence, the police station officer ig

registered Crime No. 57 of 1992 against the present applicants for the offences punishable under Sections 498A, 304B, 323, H

504, 506 r/w 34 of the Indian Penal Code. y

2] Upon investigation, charge sheet was filed in the court ba

of law. Since the offence was triable exclusively by the court of om

Sessions, the Magistrate committed the said case to the court of Sessions. The learned 5th Assistant Sessions Judge, Ahmednagar framed the charge against the applicants for the B

offences punishable under Sections 306, 304B, 498A, 323, 504 r/w 34 of the Indian Penal Code. ::: Downloaded on – 28/07/2014 23:49:30 ::: 3 crra257.00 rt

3] From the first information report (Exh.21), it was ou

reported by Kashinath (PW 2) that he performed marriage of his daughter Shantabai with applicant no.1 about 4 years of the first C

information report. Though Shantabai received good treatment at the hands of the applicants for one year, however, thereafter h

on account of amount for purchase of she-buffalow there was a ig

demand of Rs.4,000/- to Shantabai from the applicants resulting into illtreatment at the hands of the applicants on that count. H

These illtreatments were disclosed by Shantabai when she used to come to her parental house. The first information report y

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further discloses that on 10-12 occasions Shantabai was driven out of her matrimonial house by giving beating. She was also om

denied food.

Maintenance proceedings were required to be filed B

against the applicants, however, since Shantabai was willing to cohabit with applicant no.1, compromise was arrived at and the said maintenance proceedings were withdrawn and since last 2½ months Shantabai was residing in her matrimonial house. ::: Downloaded on – 28/07/2014 23:49:30 ::: 4 crra257.00 rt

The first information report further discloses that about ou

one month of prior to the incident when the first informant had been to the matrimonial place of Shantabai, he found Shantabai C

nervous.

On 28.4.1992, he received intimation that one of the h

girl from his relation fell in the well, and therefore, he and his ig

brother Sahebrao went to the matrimonial place at Pathre. That time Tulsabai applicant no.4/mother-in-law of Shantabai was H

there in the house and she disclosed that Shantabai had been to the well for fetching water and accidentally she fell in the well, y

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and therefore, she was taken in the hospital for treatment. Thereafter when they reached to the hospital they found the om

dead body and therefore, report was lodged. B

4] During trial, the prosecuting agency examined following witnesses.

PW 1 Dnyandeo Aher He has drawn map of the scene. The map is at Exh.14.

PW 2 Chhabu Supekar She acted as panch for inquest panchanama Exh.16.

PW 3 Kashinath Vaikar Father of deceased and first informant

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PW 4 Sanjay Vaikar The brother of the deceased PW 5 Gulab Ahire He reduced the first information ou

report into writing given by Kashinath

PW 6 Dr.Shivendrakumar He has done autopsy and proved Shinghal postmortem Exh.28 C

PW 7 Rajendra Pagar He took investigation from the Head Constable Aher and filed the charge sheet.

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5]

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After appreciation of the oral as well as documentary evidence, the learned 5th Assistant Sessions Judge, H

Ahmednagar acquitted the applicants for the offences punishable under Sections 304B and 504 of the Indian Penal y

Code.

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He convicted the applicant no.1 for the offence om

punishable under Section 306 of the Indian Penal Code and directed to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.5,000/-, in default he was directed to undergo rigorous B

imprisonment for 2 years.

The applicant no.1 was also convicted for the offence punishable under Section 498A of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for 3 years and ::: Downloaded on – 28/07/2014 23:49:30 ::: 6 crra257.00 rt

to pay a fine of Rs.1,000/-, and in default he was directed to ou

undergo rigorous imprisonment for 3 months. The applicant nos. 2 to 4 were convicted for the C

offence punishable under Sections 498A r/w 34 of the Indian Penal Code and were directed to suffer rigorous imprisonment h

for one year and to pay fine of Rs.1000/- each and in default to ig

undergo rigorous imprisonment for 3 months. They were also convicted for the offence punishable H

under Section 306 r/w Section 34 of the Indian Penal Code and were directed to suffer rigorous imprisonment for 3 years and to y

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pay fine of Rs.1,000/-, in default to undergo rigorous imprisonment for one year.

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Applicant nos. 2 to 4 were also convicted for the offence punishable under Section 323 r/w 34 of the Indian Pena B

Code and were directed to pay a fine of Rs.500/-, in default of payment of fine they were directed to undergo simple imprisonment for one year.

Needless to mention, all the sentences were directed to run concurrently.

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6] The applicants, being aggrieved by the said judgment ou

and order of conviction, filed an appeal before the Sessions court at Ahmednagar. The said appeal was registered as C

Criminal Appeal No.14 of 1995 and the said appeal was made over to the file of the Additional Sessions Judge, Shrirampur. h

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The learned Appellate Court vide judgment and order, dated 16.9.2000 was pleased to allow the appeal partly and H

acquitted all the applicants for the offences punishable under Sections 306, 323 r/w 34 of the Indian Penal Code. y

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The learned trial court, though convicted the applicant no.1 for the offence punishable under Section 498A of the om

Indian Penal Code, he reduced the quantum of sentence from 3 years to one year and the direction of fine was maintained. B

The learned Appellate Court also confirmed the conviction and sentence of the applicant nos. 2 to 4 for the offence punishable under Section 498A r/w 34 of the Indian Penal Code.

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8] Thus, the present Revision was filed by all the ou

applicants since they were aggrieved by their ultimate conviction under Section 498A of the Indian Penal Code and imposing of C

sentence of one year.

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9] The present Revision was pending for its final hearing ig

after its admission in the year 2000. H

10] I have heard Shri Pravin Patil, learned counsel appearing for the applicants and Shri A.S.Shinde, learned y

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Additional Public Prosecutor for the State. Both of them submitted their respective case in extenso before this court. om

11] At the time of admission of the present Revision, B

record and proceedings were called by this court. The learned counsel appearing for the applicants as well as the learned Additional Public Prosecutor took me through the entire record. ::: Downloaded on – 28/07/2014 23:49:30 ::: 9 crra257.00 rt

12] Though in the first information report it was alleged ou

that the marriage between applicant no.1 and deceased was solemnsized prior to 4 years of the incident, the learned trial C

court has disbelieved the said evidence on the part of the prosecution.

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13]

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Since for all major offences the applicants are already acquitted by the courts below, before this court the question is H

only as to whether there is sufficient evidence available on record to uphold the conviction of the applicants for the offences y

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

14] In order to prove the guilt against the applicants for the offence punishable under Section 498A of the Indian Penal B

Code, there is only evidence of PW 3 Kashinath and PW 4 Sanjay. PW 3 Kashinath is father of Shantabai; whereas PW 4 Sanjay is brother of Shantabai. ::: Downloaded on – 28/07/2014 23:49:30 ::: 10 crra257.00 rt

15] The evidence of PW 3 Kashinath would reveal that ou

after one year of the marriage illtreatment started to Shantabai. On 10-12 occasions she disclosed about the demand of money C

for purchasing buffalows to this witness. According to this witness, applicants drove away Shantabai from their house, and h

therefore, she was staying at his residence, requiring her to file ig

maintenance proceedings in the court of Judicial Magistrate, First Class, Shrirampur, however, upon the undertaking given by H

the applicants, the maintenance proceedings were withdrawn and Shantabai was sent to the house of the applicants. y

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The evidence of this witness reveals that prior to 8-15 om

days of the death of Shantabai, he visited her matrimonial house and that time she was found to be nervous and he stayed there. B

PW4 Sanjay has also supported his father Kashinath about staying of Shantabai in her parental house and filing of application for maintenance and its settlement. ::: Downloaded on – 28/07/2014 23:49:30 ::: 11 crra257.00 rt

16] Whether the evidence of these two witnesses is ou

sufficient to record a finding of guilt against the applicants is the question posed before this court. C

17] In cross-examination PW 3 Kashinath has admitted h

that Shantabai was having intention to stay in the house of the ig

accused. He has further admitted that prior to filing of the first information report Exh. 21, he never complained about the H

illtreatment to the police.

What is important aspect in the evidence of PW 3 y

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Kashinath is that prior to 8-10 days of her death, Kashinath visited the matrimonial house of Shantabai. Not only he visited om

the house of Shantabai, but he stayed there over night. Had really there been continuance of the illtreatment at the hands of B

the applicants to Shantabai, Shantabai would have disclosed the said illtreatment to her father, who had been to her house. Non-disclosure of the illtreatment on that day to her father assumes importance, because on earlier occasions she did not hesitate to report about the illtreatment, which she received at ::: Downloaded on – 28/07/2014 23:49:30 ::: 12 crra257.00 rt

the hands of the accused, to her father. ou

The evidence of PW 4 Sanjay leads to this court nowhere about the illtreatment which Shantabai was receiving. C

18] Both the courts below, it appears, have reached to the h

conclusion to record a finding of guilt under Section 498A of the ig

Indian Penal Code on the basis of the piece of evidence, namely filing of maintenance proceedings in the court of Judicial H

Magistrate, First Class, Shrirampur. y

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19] Though in the evidence of PW 3 Kashinath, it is brought on record about the filing of the proceedings in the court om

of Judicial Magistrate, First Class, Shrirampur for maintenance, no details in that behalf are produced. Further, the applicants B

have denied filing of such proceedings against them in their statement recorded under Section 313 of the Code of Criminal Procedure. However, on the said aspect, there is hardly any cross-examination.

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20] Therefore, the premise can be in favour of the ou

prosecution that Shantabai was required to file the maintenance proceedings against the applicants, however, the said C

proceedings culminated in withdrawal and the deceased started cohabiting with the applicant no.1 in her matrimonial house. h

21]

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There is no evidence at all in the prosecution case that after Shantabai started residing again with applicant no.1 H

there was any illtreatment to her by the applicants. On the part of PW 3 Kashinath, when lastly he visited the matrimonial house y

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of Shantabai and stayed there for over night, there is no disclosure about any illtreatment then being meted out to om

Shantabai. Therefore, if any illtreatment that previously the deceased was receiving was condoned and deceased herself B

was leading happy life with the applicants, when the court below acquitted the applicants for the offences punishable under Sections 304B, 306 and 323 of the Indian Penal Code, the learned lower appellate court, in my view, has committed the serious mistake in convicting the applicants on the acts which ::: Downloaded on – 28/07/2014 23:49:30 ::: 14 crra257.00 rt

were already condoned and in absence of any illtreatment in ou

the proximity of the actual incident, the appellate court ought not to have convicted the applicants for the offence punishable C

under Section 498A of the Indian Penal Code. The learned lower appellate court on the very same piece of evidence has h

acquitted the applicants for the offence punishable under ig

Section 306 of the Indian Penal Code, and therefore, the conviction of the applicants for the offence punishable under H

Section 498A r/w 34 of the Indian Penal Code cannot sustain in law. Hence, I pass following order. y

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O R D E R

(i) The judgment and order of conviction, om

passed by the learned Additional Sessions Judge, Shrirampur, dated 16.9.2000 in Criminal Appeal B

No. 14 of 1995 is hereby quashed and set aside. (ii) All the applicants are acquitted for the offence punishable under Section 498A r/w 34 of the Indian Penal Code.

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(iii) Their bail bonds stand cancelled. ou

(iv) Fine amount paid by them shall be refunded to them.

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(v) Revision allowed.

(vi) Rule is made absolute. h

dbm/crra257.00

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(V.M.DESHPANDE, J.)

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