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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,
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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:
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“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
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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
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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
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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
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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
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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
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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
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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
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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
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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 !!
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