SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Indrajit Dasharath Mohite vs The State Of Maharashtra on 29 October, 2018

1 REVN 365-03 Judgment.odt-6

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.365 OF 2003

Indrajit Dasharath Mohite. ]
Age – 28 yrs., Occupation – Agriculturist. ]
R/o. Sangvi, Mohite Vasti, Tal. Phaltan, ]
Dist. Satara. ] … Applicant /
Orig.Accd.No.1
Versus

The State of Maharashtra. ] … Respondent

Mr. Rahul S. Kate for Applicant.
Ms. S. S. Kaushik, APP for State – Respondent.

CORAM :- SARANG V. KOTWAL, J.
DATE :- 29 OCTOBER, 2018

JUDGMENT :-

1. The Applicant was one of the co-accused in Sessions Case

No.139 of 1996 before the learned V th Assistant Sessions Judge,

Satara. By the Judgment and Order dated 02/09/1997, the learned

trial Judge convicted the Applicant for the offence punishable under

Section 306 of the IPC and he was sentenced to undergo R.I. for five

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

to suffer S.I. for one month. The Applicant was further convicted for

URS 1 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
2 REVN 365-03 Judgment.odt-6

commission of offence punishable under Section 498A of the IPC and

was sentenced to undergo R.I. for one year and to pay a fine of

Rs.500/- and in default of payment of fine, to suffer S.I. for 15 days.

The substantive sentences were directed to run concurrently. The

Applicant was given set off for the period for which he was in jail.

Along with the Applicant, his mother Tanubai Mohite had faced the

trial. She was acquitted of both the charges.

2. The Applicant challenged his conviction and sentence by

preferring Criminal Appeal No.57 of 1997 before the Court of Sessions

at Satara. The IIIrd Additional Sessions Judge, Satara, vide the order

dated 30/08/2003, dismissed the Appeal and the Applicant’s

conviction and sentence were upheld. The Applicant has challenged

both these Judgments in the present Criminal Revision Application.

3. The prosecution case, in brief, is as under.

Deceased Asha was wife of the Applicant. She was

married to the Applicant on 08/06/1993. After marriage, the couple

started residing at the Applicant’s house at Sangvi, Taluka Phaltan,

District Satara. Asha was treated well for a few months and thereafter

URS 2 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
3 REVN 365-03 Judgment.odt-6

in January 1994, the Applicant and his mother Tanubai (original

accused no.2) started ill-treating her. It is alleged that the Applicant’s

mother Tanubai used to taunt Asha on account of not doing

household work and agricultural work properly. It is the prosecution

case that on Tanubai’s instigation, the Applicant used to beat Asha. It

was also alleged that Tanubai would harass Asha on the ground that

the dowry paid to them was not sufficient and gold ornaments were

no given in the marriage. It is further alleged that the accused started

demanding Rs.35,000/- from Asha. The accused were forcing Asha to

bring that amount from her parents. It is further alleged that after

Asha gave birth to two daughters, the harassment increased as Asha

did not deliver a male child. According to the prosecution case, in

January 1996, Asha had gone to her parental house after birth of her

second daughter Supriya. Asha narrated about the ill-treatment to

her parents. Thereafter, the Applicant’s brother went to Asha’s

parental house and returned with her to Applicant’s house. The

Applicant’s brother assured Asha’s parents that she would be treated

properly. It is the further prosecution case that in the month of June

1996, Asha had gone to her parental house as Zirapwadi to attend her

cousin’s wedding. Even at that time, she complained about the ill-

URS 3 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
4 REVN 365-03 Judgment.odt-6

treatment. She complained to her parents about the ill-treatment

meted out to her. On 16/07/1996, Asha and her young daughter

Supriya’s dead bodies were found in the well of the Applicant. Asha’s

father was informed. He came to Sangvi with his relatives. After

cremation of the dead bodies, Asha’s father lodged his FIR with

Phaltan Police Station vide C.R.No.117 of 1996 under Sections 498A

and 306 read with 34 of the IPC. The investigation was conducted.

Spot panchanama was carried out. The Applicant was arrested.

Statements of the witnesses were recorded and at the conclusion of

the investigation, charge-sheet was filed. The case was committed to

the Court of Sessions for trial.

4. The trial was held before the learned V Assistant Sessions

Judge, Satara, vide Sessions Case No.139 of 1996, against the

Applicant and his mother Tanubai. The charges were framed under

Sections 498A and 306 read with 34 of the IPC. During the course of

the trial, the prosecution examined 7 witnesses. PW 1 Bapurao

Jadhav was a pancha in whose presence the spot panchanama was

conducted. PW 2 Shamrao Gunjawate was Asha’s father who had

lodged the FIR. PW 3 Dadaso Gunjawate was Applicant’s nephew who

URS 4 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
5 REVN 365-03 Judgment.odt-6

had taken a milk bottle to the agricultural field where deceased Asha

was working. This witness had turned hostile and did not support the

prosecution case. PW 4 Baburao Gunjawate was PW 2’s brother who

has deposed about the cruelty suffered by deceased Asha. PW 5

Indubai Gunjawate was the mother of deceased Asha and PW 6

Manisha Bongane was Asha’s cousin. All these witnesses have

deposed about the cruel treatment meted out to the deceased. PW 7

PSI Bajirao Bhosale was the Investigating Officer.

5. I have heard Mr. Rahul S. Kate, learned Counsel for the

Applicant and Ms. S. S. Kaushik, learned APP for State. With their

assistance, I have read the entire evidence. I have gone through the

record and proceedings and I have read the impugned Judgments.

6. To substantiate the charges against the accused, the

prosecution examined PW 2, PW 4, PW 5 and PW 6. PW 2 Shamrao

Gunjawate was the father of deceased Asha who had lodged the FIR.

According to him, after marriage on 08/06/1993, Asha was treated

properly by the accused and after December 1994, they started

harassing her. He has deposed that after December 1994 whenever

URS 5 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
6 REVN 365-03 Judgment.odt-6

Asha came to his house, she told him that the accused no.2 Tanubai

had started making complaints that sufficient ornaments were not

given in marriage. PW 2 has further deposed that Asha used to tell

him that both the accused were demanding Rs.35,000/- and they were

telling Asha to bring this amount from PW 2 for purchasing land.

According to PW 2, this fact was narrated to him in the month of

January 1996. He has further deposed that the accused no.2 used to

taunt Asha and the Applicant used to beat her. He has further

deposed that after the birth of the second daughter, the accused

started harassing Asha more by beating her. He has further deposed

that because of his poor financial condition, he could not fulfill the

demand of Rs.35,000/-. According to PW 2, in the month of January

1996, Asha had come to his house because the accused had beaten her

and had ill-treated her. On that occasion, Asha resided with him for

15 days. She also reiterated the demand made by the accused for

Rs.35,000/-. At that time, the Applicant’s brother Ankush approached

him and took Asha with him on the assurance that she would be

treated properly. PW 2 has further deposed that on 28/06/1996,

Asha’s cousin got married at Zirapwadi and even at that time, Asha

told PW 2 about the ill-treatment. On 16/07/1996, one Dilip

URS 6 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
7 REVN 365-03 Judgment.odt-6

Gunjawate informed him that Asha had committed suicide and she

had jumped in a well with her daughter. He then went to Sangvi and

on 17/07/1996, he lodged his FIR.

7. PW 4 Baburao Gunjawate was Asha’s uncle and PW 2’s

brother. He has deposed that at the time of festival of Sankrant before

Asha’s death, the Applicant had sent her to her paternal house. At

that time, Asha had told him that the Applicant was demanding

Rs.35,000/- for purchasing land and was telling her to bring the said

amount from her father. On her refusal, the Applicant used to beat

her. In his cross-examination, he has deposed that two months prior

to death of Asha, for the first time, she told this witness that the

accused were demanding money from her. That means his version

that Asha told him about the ill-treatment during the festival of

Sankrant which is in the month of January, could not be true. Asha

met with her death in July 1996 and two months prior to July 1996

would be at the most April or May 1996. This witness has also stated

that when he visited Sangvi after Asha’s death, he found that the well

had almost filled up with water.

URS 7 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
8 REVN 365-03 Judgment.odt-6

8. PW 5 Indubai Gunjawate is the mother of the deceased

Asha. She has deposed on the same lines as those of PW 2. However,

in her cross-examination, she has stated that they learned about the

ill-treatment meted out to Asha on account of non-fulfillment of

demand for money and on account of not giving sufficient gold

ornaments and dowry at the time of marriage, for the first time when

after birth of Supriya, Asha had gone to their house at Zirapwadi. It is

important to note that Supriya was the second daughter of the

Applicant and Asha who was born about 7 months prior to the

incident. That means, Asha had informed her parents about her ill-

treatment for the first time mostly in the month of January 1996. This

version is directly contradictory to the prosecution case and in

particular, deposition of PW 2 who has stated that Asha had informed

him about the ill-treatment right from January 1994.

9. PW 6 Manisha who was Asha’s cousin, has deposed that

the Applicant used to beat Asha on instigation of the accused no.2.

She has deposed that Asha told her about the ill-treatment when she

had gone to Zirapwadi one year after her first daughter Gauri’s birth.

This witness has deposed that she had heard about the demand of

URS 8 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
9 REVN 365-03 Judgment.odt-6

Rs.35,000/- when Asha was telling the same to her father. That

means, Asha had not directly told her about the demand of

Rs.35,000/-. Importantly, this witness has admitted that the police

never recorded her statement.

10. PW 7 PSI Bhosale had conducted the investigation. He

had recorded the statements of two persons from Mohite Vasti around

the spot where the incident had occurred. However, none of these

witnesses was examined by the prosecution.

11. Apart from the oral evidence, the prosecution also

produced documentary evidence on record in the form of the post-

mortem notes in respect of the examination conducted on the dead

bodies of the deceased which are produced on record at Exh.15 and

Exh.16. The cause of death of both Asha and Supriya is given as

‘Asphyxia due to drowning’. There are no external injuries on either

of them. The spot panchanama is produced on record at Exh.20. PW

1 Bapurao Jadhav was the pancha in whose presence the spot

panchanama was done. This witness has admitted that deceased Asha

was his relative. The spot panchanama shows that the well is situated

URS 9 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
10 REVN 365-03 Judgment.odt-6

in the land of Applicant’s father. The well had a wall which was made

with stones. Importantly, the height of such wall is not mentioned

either in the panchanama or in the oral evidence. It is further

mentioned in the spot panchanama that at a distance of 4 ft. there

was a piece of cloth and two pairs of slippers in the field. It is also

mentioned in the spot panchanama that about 600 ft. on the eastern

side, a mat, a sickle and a milk bottle were lying in the crops. Beyond

this, the spot panchanama does not reveal much.

12. Mr. Kate, learned Counsel for the Applicant, submitted

that since the accused no.2 is acquitted on the basis of the same

evidence, both the Courts below should have extended the same

benefit to the Applicant herein. He further submitted that the

possibility of accidental death is not ruled out. According to him, the

prosecution witnesses are not consistent in deposing about the cruelty

and in any case, the cruelty alleged against them was not sufficient to

attract either Section 498A of 306 of the IPC. He further submitted

that the material witnesses from the locality were not examined and

Dilip Gunjawate who had pointed out the spot the police, was not

examined. He has emphasized that the allegations of demand was

URS 10 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
11 REVN 365-03 Judgment.odt-6

made against both the accused. The accused no.2 was acquitted and

since no appeal was filed by the State challenging her acquittal, it had

attained finality. He further submitted that even the present

Applicant was entitled to be given the same benefit of reasoning.

13. On the other hand, Ms. Kaushik, learned APP for State,

submitted that the prosecution witnesses have spoken about the ill-

treatment meted out to the deceased and there was no reason to

discard their evidence. She further submitted that both the Courts

below have properly considered their evidence. She further submitted

that since there are concurrent findings on fact, this Court should not

interfere. However, she conceded that the offence of Section 306 of

the IPC was not made out. She pressed for conviction only under

Section 498A of the IPC.

14. Having considered the reasons offered by both the Courts

below, it can be seen that both the learned Judges have come to a

conclusion that the prosecution witnesses’ deposition against the

accused no.2 were not sufficient to bring home guilt against her. As

far as the evidence of PW 2, PW 5 and PW 6 is concerned, they have

URS 11 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
12 REVN 365-03 Judgment.odt-6

made allegations against both the accused in equal measures. It is

their case that the Applicant was ill-treating the deceased on the

instigation of the accused no.2. The ill-treatment started as the

accused no.2 always taunted Asha that the dowry was not sufficient

and the ornaments offered in the marriage were not enough. The

accused no.2 had allegedly always scolded the deceased for not doing

the household work and agricultural work properly. On perusal of the

evidence, it can be seen that the allegations against the accused no.2

and accused no.1 i.e. the present Applicant, are inseparable and

therefore, if the benefit of doubt is given to the accused no.2, there is

no reason as to why the said benefit could not have been extended to

the Applicant as well.

15. The prosecution evidence is also not consistent as to when

exactly Asha had started informing her parents about the ill-treatment

meted out to her. PW 5 has deposed in her cross-examination that

they came to know about the ill-treatment to Asha for the first time

when after birth of Supriya, Asha had gone to their house at

Zirapwadi. Supriya was the second child who was born around

December 1995 and therefore from this admission, it appears that

URS 12 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
13 REVN 365-03 Judgment.odt-6

Asha made a grievance for the first time in and around January 1996.

This runs contrary to the prosecution case and in particular, the case

of PW 2 that right after December 1994, Asha was making grievance

about the ill-treatment.

16. Even PW 4 Baburao has deposed that two months prior to

Asha’s death, for the first time, she told him about the demand made

by the accused. That means, at around April or May 1996, for the first

time, they came to know about the ill-treatment. All this is

inconsistent and thus, the prosecution witnesses are not truthful in

deposing about the grievance made by Asha. PW 6 Manisha has

admitted that her statement was not recorded by the police. That

means, she was making the allegations against the Applicant for the

first time in August 1997 when her deposition was recorded. Thus,

the prosecution has not led reliable evidence in respect of the ill-

treatment meted out to Asha.

17. Another crucial aspect of the matter is whether the

prosecution has been able to prove that Asha had committed suicide

by jumping in the well along with her child Supriya. In this

URS 13 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
14 REVN 365-03 Judgment.odt-6

connection, the post-mortem notes show that both Asha and Supriya

had died because of ‘Asphyxia due to drowning’. The question

remains as to whether the drowning was accidental or suicidal. The

prosecution, in this case, has not led sufficient evidence to rule out the

possibility of accident. The spot panchanama was not conducted in a

clear manner. The nature of the wall surrounding the well and in

particular height of the wall, was not mentioned either in the spot

panchanama or in the deposition of PW 1 Bapurao who was the spot

pancha. The defence had requested the trial Judge to conduct

inspection of the well, however, that application was rejected. In my

opinion, considering the insufficient evidence led by the prosecution

in respect of the position of the well and in particular, the wall

surrounding the well, it would have served the interest of justice had

the spot inspection been carried out. Be that as it may, the evidence

led by the prosecution in respect of the spot of the incident does not

throw light on the possibility as to whether it was suicide or accident.

The record shows that the well was almost full with water and it was

just 4 ft. below the ground level. The spot panchanama shows that

the wall was made by stack of stones. According to the defence, there

was a small opening on the eastern side from where there was a

URS 14 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
15 REVN 365-03 Judgment.odt-6

possibility to fetch water for drinking purpose. Though the

Investigating Officer has denied the said position, the record itself

does not clearly spell out as to whether the water in the well was used

only for irrigating the field or was used for drinking purposes also.

The Applicant, in his written statement filed under Section 313 of the

Cr.P.C., has taken a defence that there was a possibility that Asha had

fallen accidentally in the well in an attempt to fetch water for drinking

purpose. The prosecution has not clearly established that the pair of

slippers which was near the spot, belonged to the deceased. The

sickle, the milk bottle and the mat found in the crop also does not

indicate anything to enable the Court to conclude that it was either

suicide or accident.

18. In this view of the matter, in my opinion, the prosecution

has failed to prove that the death was a result of suicide committed by

Asha. The prosecution has not ruled out the possibility of accidental

fall in the well. Asha had met her parents on 28/06/1996 as is

deposed by PW 2. There is no evidence as to what transpired from

28/06/1996 to 16/07/1996. Therefore, it is difficult to conclusively

hold that, firstly, Asha had committed suicide and secondly, she had

URS 15 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
16 REVN 365-03 Judgment.odt-6

committed suicide because of the ill-treatment meted out to her by the

accused.

19. Mr. Kate was right in his submission that since the accused

no.2 was acquitted on consideration of the same evidence, even the

present Applicant deserves to be treated in the same manner. The

evidence shows that all the allegations are made against both the

accused and therefore, if benefit was given to one of the accused,

there is no reason as to why the same benefit could not have been

extended to the present Applicant as well.

20. Though the incident had occurred during the 7 years of

marriage, the prosecution cannot take recourse to Section 113-A of

the Indian Evidence Act. It was necessary for the prosecution to show

that the deceased had committed suicide and then question arises

whether the suicide was committed as a result of ill-treatment at the

hands of the accused. Since the prosecution has not crossed the first

hurdle of proving the case of suicide, the said presumption does not

arise. Both the Courts below have not considered all these aspects

discussed above in their proper perspective and therefore, in my

URS 16 of 17

::: Uploaded on – 01/11/2018 02/11/2018 00:43:24 :::
17 REVN 365-03 Judgment.odt-6

opinion, this is a fit case calling for interference by extending benefit

of doubt to the Applicant. Hence, the following order.

ORDER

(i) The Revision Application is allowed in terms of prayer

clause (b).

(ii) The Applicant is acquitted from all the charges against

him.

(iii) The Applicant is on bail. His bail bonds shall stand

discharged.

(SARANG V. KOTWAL, J.)

URS 17 of 17

::: Uploaded on - 01/11/2018 02/11/2018 00:43:24 :::

Leave a Reply

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

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation