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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
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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
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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-
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.)
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