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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
…

CRIMINAL APPEAL NO. 250/2011

* Shri Jaideo Dattaraj Umak
Aged about 50 years, occu: Nil
R/o Bhogli, P.S. Khaparkheda. .. ..APPELLANT

versus

1) State of Maharashtra
Through PSO, Kanhan
Dist. Nagpur.

2) Mohan s/o Deorao Kohale
Aged about 34 years
occu: Driver

3) Malti Nivrutti Kohale
Aged about 49 years, occu: Labour

4) Roshni Kantiram Kohale
Aged about 27 years, occu: Labour

5) Nivrutti Deorao Kohale
Aged about 46 years, occu: Labour

6) Kantiram Deorao Kohale
Aged about 48 years occu: Labour

All R/o Wagholi, Tah. Parseoni
Dist. Nagpur. .. RESPONDENTS
……………………………………………………………………………………………………………………………..
Ms.Rani Nitnaware, Adv,h/for Mr.Y.B. Mandpe, Adv. for appellant
Mr. A.D. Sonak,, Additional Public Prosecutor for respondent no.1
Mr. R.B.Gaikwad, Advocate for respondent nos. 2 to 6
………………………………………………………………………………………………………………………………

CORAM: P.N. DESHMUKH
MRS.SWAPNA JOSHI, JJ.

DATE: 29.10.2018

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JUDGMENT: (PER MRS.SWAPNA JOSHI, J.)

1. At the instance of complainant-Jaideo Dattaraj Umak (appellant), the

instant Appeal has been directed against the judgment and order dated 8.2.2011

delivered by learned Assistant Sessions Judge-14, Nagpur in Sessions Trial No. 471/

2008 acquitting original accused nos.1 to 5 (respondents 2 to 6 : hereinafter referred to

as “the accused”) of the offences punishable under Sections 498A, 306 and 304B

read with Section 34 of the Indian Penal Code.

2. The prosecution case can be summarized as under :

The appellant is the father of deceased-Kavita. A2-Mohan is the

husband, whereas A3 to A6 are the in-laws of Kavita. The marriage between Kavita

and A2-Mohan was solemnised on 30th April 2008 at Koradi. In the said marriage gift

articles, such as, almirah, fridge, sewing machine, diwan, sofa, gas cooler etc. were

given. After marriage, Kavita started residing with her husband and in-laws at Wagholi.

Thereafter for about five to six occasions, Kavita visited her paternal home at Koradi.

At that time, Kavita used to complain against her husband and in-laws that they used

to beat her on the count that her father has not given dowry in the marriage. On

28.12.2008 there was a function of ‘Panchavatar’ and Kavita along with A2-Mohan

went to Koradi. On the next day, A2 returned to Wagholi; however Kavita stayed there

for six days. During the said period, Kavtia informed her parents that A2 Mohan and

her in-laws used to ask her to bring an amount of Rs. 50,000/- from her paternal

home and for that purpose they used to beat her. On 11.1.2009 Kavita

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telephonically contacted her father informing that her husband and in-laws are ill-

treating her for bringing amount of Rs. 50,000/- from her paternal home. Therefore,

the complainant along with his relatives proceeded to Wagholi. On the way, he came

to know that dead body of Kavita is in the Government Hospital at Kamptee.

According to the complainant, Kavita must have consumed some insecticide and as

such she died. The complainant then lodged the complaint (Exh.14) against the

accused. Formal investigation was conducted. PW2-Rajendra Kharbade, Head

Constable, recorded the complaint, on the basis of which he registered the offence.

The formal investigation was conducted by PSI Pendam (not examined). After

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

Court of Sessions. On analysis of the evidence on record and hearing both sides, the

learned trial Judge acquitted the accused. The said judgment and order is impugned in

the present Appeal.

3. Ms.Rani Nitnaware, learned Adv.h/for Mr. Y. B.Mandpe, learned counsel

for the appellant vehemently argued that the impugned order is illegal and perverse

inasmuch as the learned trial Judge has not evaluated the evidence led by the

prosecution in its right perspective and has erroneously acquitted the accused. It is

submitted that the evidence of father and relatives of deceased-Kavita shows that

Kavita was subjected to cruelty and, therefore, she committed suicide by consuming

poison. She submitted that the impugned judgment is erroneous and it be set aside

and the accused are liable for conviction.

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4. Per contra, Shri R.B. Gaikwad, learned counsel for respondent nos.2

to 6 vehemently argued that the learned trial Jude has rightly considered the evidence

led by the prosecution and supported the impugned judgment and submitted that the

learned trial Judge has rightly acquitted the accused as there was no cogent and

convincing evidence on record against them. It is submitted that the view taken by

the learned trial Judge is a possible view and no interference at the hands of this

Court is necessary.

5. Shri A.D. Sonak, learned APP for respondent no.1-State, adopted the

arguments put forth by learned counsel for respondents 2 to 6.

6. At the outset, it is necessary to note that the prosecution has not proved

as to what was the cause of death of Kavita. The PM report (Exh.25) does not reveal

any cause of death. The viscera of deceased was preserved and the opinion with

regard to the cause of death was reserved till obtaining the Chemical Analyser’s

report. It is worthwhile to note that the CA report (Exh. 16) does not reveal any poison

in viscera of Kavita. Thus, the cause of death is not proved by the prosecution. In view

thereof, one cannot come to the conclusion whether deceased died a suicidal or

homicidal death. Similarly, it cannot be concluded whether Kavita died otherwise than

under normal circumstances. Thus, the essential ingredients as required under section

304B and 306 of IPC have not been established by the prosecution.

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7. Now coming to the evidence led by the prosecution with regard to the

alleged cruelty meted out at the hands of accused is concerned, the prosecution relied

upon the testimony of PW3-Jaideo Umak (father of deceased), PW4- Meena Kale

(cousin sister of deceased), PW5-Bebibai Umak (mother of deceased) and PW6-

Vinod Umak (brother of deceased).

8. The testimony of PW3-Jaideo, who is father of the deceased,

demonstrates that after marriage, Kavita visited his house on as many as four times

and informed him that A2-Mohan beats her and asking her to bring an amount of Rs.

50,000/- from him. According to PW3 there was a function of “panchavatar”. At that

time, Kavita along with A2-Mohan visited his house. On the next day A2 returned

village Wagholi, however her daughter stayed for about four days at his house. At

that time, his daughter informed him that A2-Mohan was demanding an amount of

Rs. 50,000/-. However PW3 could not pay the said amount as he did not have

sufficient funds at his disposal. Thereafter A2-Mohan took Kavita with him. After four

days Kavita telephoned him informing that A2 is beating her and as such send

somebody to her house. Accordingly, PW3 along with his son went to village Wagholi

and found broken bangles lying in the house of Kavita, however, Kavita was not in

the house. PW3 came to know that Kavita was taken to hospital. Accordingly PW 3

went to Government Hospital, Kamptee. The dead body of Kavita was found in the

auto-rickshaw. PW3 then lodged complaint (Exh.14). An improvement was pointed

out in the cross-examination of PW3 to the effect that in the marriage he had given

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Ekdani, ear-rings and nose ring to kavita and A2 Mohan was beating Kavita for an

amount of Rs. 50,000/- and his daughter called him and informed telephonically that

accused is beating her and requested him to send someone to fetch her. An

improvement is also pointed out on the point that PW3 saw pieces of bangles in the

house of Kavita and he saw the dead body of Kavita in the auto-rickshwaw . Thus,

in view of the material improvement made by PW3 in his version before the Court, his

testimony cannot be relied upon as it does not inspire confidence. There is material

discrepancy in the testimony of PW3 with regard to the period as to when exactly his

daughter informed him about beating and A2-Mohan asking her to bring the amount

of Rs. 50,000/- from her father. So far as the allegation about payment of Rs. 50,000/-

when Kavita visited the house of PW3 on the eve of Panchavatar function is

concerned, it is a vague allegation and it is not clear as to when Kavita had

complained to her father. Similarly, immediately before death of Kavita PW3 stated

about A2 beating her for the amount of Rs. 50,000 and she asked to send someone

to her house, is an material improvement which goes to the root of the case. Thus,

the testimony of PW 3 does not inspire confidence.

9. The evidence of PW 5 Bebibai, who is the mother of deceased, shows

that when Kavita visited her house during Diwali, she informed that her husband

consumes liquor and beats her and that her husband and in-laws are demanding an

amount of Rs. 50,000/- and since no dowry was given to her they threatened to

drove her out of the house. According to PW5 an understanding was given to Kavita

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as they were not having sufficient funds. Kavita then returned to her matrimonial

home. According to PW5 on the eve of ‘panchavatar’ when Kavita visited her house

she did not inform anything to them. As against this, PW3, father of Kavita, stated

that Kavita complained against the accused and stated that they had demanded

Rs.50,000/- from her. PW5 stated that on 11.1.2009 Kavita made a phone call to

her son and informed that there are quarrels in her house and they should come

immediately. Accordingly, her husband proceeded to Wagholi. Thus, the testimony of

PW5, does not corroborate with the testimony of PW3. There is no consistent

evidence on record with regard to the demand of Rs. 50,000/- from the accused

persons. So also, according to PW5 on the date of incident, Kavita called her brother,

whereas according to PW3, Kavita called him and talked to him. There is also

discrepancy in the version of PW3 and PW5 as to what Kavita has stated on

telephone, in as much as according to PW3 she stated about the quarrels in her

house whereas as per the testimony of PW5 Kavita complained against her husband.

The testimony of PW5 thus does not inspire confidence.

10. The testimony of PW4, who is the cousin sister of Kavita, is also on

the same lines. According to PW4 at the time of Diwali, Kavita informed that her

husband is asking to bring an amount of Rs. 50,000 as dowry from her parents.

According to her, Kavita talked to her on telephone and informed that all the accused

used to beat her and discontinued the telephone. In her testimony, an improvement

was pointed out with regard to the fact that accused asked Kavita to bring money

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and all the accused used to beat her as she had not brought dowry. So also, material

improvement was pointed out on the aspect of Kavita telephonically informed her that

all the accused were beating her. In view of the material discrepancy in the testimony

of PW4 her testimony also does not inspire confidence.

11. The testimony of PW6-Vinod Umak, brother of deceased, reveals a

new fact that at the time of Diwali when Kavita visited her parental house, she

informed that both the wives of brothers of her husband were asking to bring an

amount of Rs. 50,000/- as dowry was not given to her in marriage and therefore they

used to quarrel with her. The evidence of PW6 further reveals that Kavita informed

him telephonically that brothers of her husband and their wives are quarreling with

her and they are beating her and saying that she was not providing to her father in law

meals and was not doing household works, and thereafter the phone was

discontinued. Thus, a new story is cropped up from the testimony of PW6.

Significantly, PW6 admitted that in his cross-examination that he had no personal talk

with Kavita. Thus, the evidence of PW6 is contrary to the testimony fo other witnesses

i.e. PW3 and PW5 which does not inspire confidence.

12. The overall assessment of the prosecution case indicates that the

prosecution has not proved the unnatural death of Kavita. It is not proved that death

of Kavita was caused otherwise than under normal circumstances and assuch, the

prosecution has failed to prove that soon before her death Kavita was subjected to

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cruelty by the accused. The learned trial Judge has rightly assessed the evidence

and acquitted the accused. In that view of the matter, in our considered opinion, no

interference is called for with the judgment passed by the learned trial Court.

13. In the case of Mahendra Pratap Singh vs. State of Uttar Pradesh,

reported in (2009) 11 SCC 334, the Hon’ble Apex Court has given a rule of prudence

that if on appraisal of evidence and on considering relevant attending circumstances, it

is found that two views are possible, one for acquitting accused and other for

convicting accused, in such a situation, rule of prudence should guide High Court not

to disturb the order of acquittal made by the trial court, unless conclusions of trial court

drawn on evidence on record are found to be unreasonable and perverse or

unsustainable, High Court should not interfere with the order of acquittal. In the case of

Harbeer Singh vs. Sheeshpal and others, reported in (2016) 16 SCC 418, it is

observed by the Hon’ble Supreme Court on the same facts that another view could

also have been taken on the evidence on record, is not a ground for reversing an order

of acquittal. In view of the aforesaid facts and circumstances, no interference is

warranted with the order of acquittal. Hence, the following order:-

ORDER

Criminal Appeal No.250/2011 is dismissed.

JUDGE JUDGE
sahare

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