cri apeal 105-99 .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 105 OF 1999
1. Nizar Razzakali Panjwani
2. Nadir Razzakali Panjwani (expired)
3. Roshanbhai Razzakali Panjwani (expired)
4. Parwin Nadir Panjwani
res. at Roshan Manzil
Bhoi Galli, House No. 3606,
Nasik, Maharashtra. .. Appellants
v/s.
State of Maharashtra .. ..Respondents
Mr.R.A.Shaikh a/w. Mrs. Swati Margi for the Appellants
Mr.P.H.Gaikwad APP for the respondent.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
JUDGMENT RESERVED ON : 25th September, 2017.
JUDGMENT PRONOUNCED ON : 12th JANUARY, 2018.
JUDGMENT:
1. The aforesaid appellants, who were the accused in Sessions
Case No.120 of 1996 and who shall be hereinafter referred to as the
accused, have challenged the judgment dated 7 th January, 1999
whereby the learned Additional Sessions Judge, Nashik has convicted
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and sentenced them for offence under Section 498A r/w. 34 of the
Indian Penal Code.
2. Factual matrix, as emerges from the record, is that the deceased
Rachana was married to the accused no.1 on 2 nd April, 1995. The
deceased, accused nos.2 and 3 and the accused no.4 are the family
members of the accused no.1. Rachana and the accused no.1
initially resided at Mumbai. They later shifted to Nashik and were
residing along with the other family members. Rachana and
accused no.1 were blessed with a baby girl on 4th January, 1996.
3. It is the case of the prosecution that Rachana had informed her
parents that she was being subjected to cruelty and that the accused
were demanding dowry. She had even addressed letters to her
parents informing them about such demands and cruelty. On 14 th
March, 1996 Rachana called her parents and informed them that
she was being harassed and requested them to take her back. On
receipt of the said information, PW3, PW11 who are the parents of
Rachana and her uncle-PW12 went to the house of the accused and
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brought her back to their house at Nashik. It is alleged that the
accused no.1 had refused to hand over the custody of the minor child
to Rachana.
4. It is alleged that on 18th April, 1996, said Rachana had gone to
meet the accused no.1 to bring back her two months old child. After
she returned home, she informed her grand-mother PW10 Kasturibai
that the accused no.1 had given her a soft drink mixed with poison.
Rachana was in critical condition and was taken to the hospital. She
expired on 19th April, 1996. PW6 Dr. Subhash conducted post-
mortem over the body of Rachana and opined that the death of
Rachana was due to asphyxia as a result of unknown poisonous
substance. Viscera was preserved and was forwarded for forensic
examination.
5. PW3 Dnyaneshwar More, the father of Rachana went to
Panchwati Police Station and lodged the FIR at Exhibit 45. The said
report was recorded by PW8 Shaikh Nazir, who at the relevant time
was the PSO on duty at Panchvati Police Station. He forwarded the
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said report to Bhadrakali Police Station since it pertained to their
jurisdiction. On receipt of the said report, API Choudhari registered
Crime No. 86 of 1996 against the accused for offences under Section
302, 498A r/w. 34 of IPC. Further investigation was conducted by
PW15 PSI Pandurang Sahane. He arrested the accused, recorded
statements of the witnesses and seized all the incriminating material
including three inland letters allegedly written by Rachana to her
parents. He obtained admitted handwriting of Rachana and
forwarded the said letters and the admitted writing to the
handwriting expert and the other incriminating material for chemical
analysis. The viscera of Rachana tested positive to Gafbamate
insecticide propoxur (baygon) and petroleum hydrocarbons. The
handwriting expert also opined that writing in the letters (disputed
writing) tallied with the writing on the pages, stated to be the
admitted handwriting of Rachana. Upon completion of investigation,
PW15 submitted the charge sheet against the accused for offences
under Section 302 and 498A r/w. 34 of IPC.
6. On the case being committed to the Court of Sessions, trial
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court framed the aforesaid charge to which the accused pleaded not
guilty and claimed to be tried. In support of its case, prosecution
examined 15 witnesses. The statements of the accused were
recorded under Section 313 of Cr.P.C. The trial court upon
appreciation of the oral as well as documentary evidence, acquitted
all the accused of offence under Section 302 r/w. 34 of IPC, but held
them guilty of the offence under Section 498A r/w. 34 of IPC. The
learned Sessions Judge sentenced the accused no.1 to undergo
imprisonment for three years with fine of Rs.2000/-. Deceased
accused nos.2 and 3 were sentenced to undergo imprisonment for
two years with fine of Rs.2000/- and three months with fine of
Rs.1000/- respectively, and the accused no.4 was sentenced to
undergo imprisonment for one year with fine of Rs.2000/-. Being
aggrieved by this conviction and sentence, the accused have
preferred this appeal.
7. The accused nos.2 and 3 have expired during the pendency of
the appeal. Hence, the appeal stands abated against these two
accused.
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8. I have perused the records and considered the submissions
advanced by Shri R.A.Shaikh,the learned Counsel for the accused and
Mr. Gaikwad Patil, the learned APP for the State. Before adverting to
the appreciation of evidence and submissions made by the learned
Counsels for the respective parties, it is necessary to state certain
undisputed facts. The deceased-Rachana and the accused no. 1, who
professed different religions, were in love with each other. Rachana
left her parental house and got married to the accused No.1 on 5 th
April, 1995 against the wishes of her parents and the other family
members. After the marriage, Rachana and the accused No.1 stayed
in Mumbai and a couple of months later they returned to Nashik and
started residing alongwith the other family members of the accused
No.1. Rachana and the accused No.1 were blessed with a baby girl
on 4th January, 1996. The parents of Rachana had brought Rachana
to her parental home on 14th April, 1996, while the two months old
child of Rachana continued to be with the accused No.1. Said
Rachana was admitted in the hospital on 18 th April, 1996 and she
expired on 19th April, 1996. The cause of death was stated to be
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asphyxia due to poison.
9. PW3 Dnyaneshwar More, the father of Rachana had alleged
that the accused had demanded money from Rachana and subjected
her to cruelty. There were specific allegations that the accused no.1
had administered poison to Rachana. The learned Trial Court
disbelieved the allegations made by the parents of Rachana that the
accused No.1 had administered poison to Rachana. The Trial Court
held that the prosecution had failed to establish that the death of
Rachana was homicidal. The learned Trial Court therefore acquitted
the accused of the offence under Section 302 of the IPC, to which
there is no challenge. The evidence of prosecution witnesses has to
be appreciated bearing in mind the background of marriage and
aforesaid circumstances.
10. It is the case of the prosecution that Rachana had phoned her
family members and informed them that the accused were
demanding dowry and were subjecting her to cruelty. It is further
alleged that Rachana had also addressed letters to her parents
informing them about such cruelty. On 14 th April, 1996, Rachana
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phoned her parents and informed them that she was being assaulted.
Rachana requested them to come and take her back. The parents and
the maternal uncle of Rachana (PW3, PW11 and PW12) went to the
house of the accused and brought her back. In support of the said
case, the prosecution principally relied upon the evidence of PW3
and PW11, the parents of Rachana, PW10 and PW12, the maternal
grandmother and uncle of Rachana. The prosecution has also relied
upon the testimony of PW2. Subhash Gulve, a neighbour, in addition
to the evidence of PW14 Vishwas Ranjangaonkar, the handwriting
expert.
11. PW3 had stated in his examination in chief that he had received
several telephone calls from Rachana demanding money varying
from Rs.10,000/- to Rs.60,000/- to purchase a rickshaw for the
brother of the accused No.1 and Rs.1,00,000/- for the marriage of
the sister of the accused No.1. However, in his cross-examination he
has stated that Rachana had never told him that the accused were
demanding money and were harassing her for not meeting the
demands.
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12. PW11 Sangita More, the mother of Rachana has deposed that
after Rachana had started residing at her matrimonial home at
Nashik, she had phoned her and told her to meet her near CBS,
Nashik. Rachana had come to meet her at CBS, Nsshik but the
accused No.1 followed her and took her back in a rickshaw. She has
stated that two days later Rachana once again phoned her and told
her that the accused were demanding Rs.15,000/- towards the
expenses of her delivery. Rachana also told her that the accused
were harassing her and demanding Rs.10,000/- to purchase a
rikshaw for the brother of the accused No.1 and Rs.1,00,000/- for the
marriage of the sister of the accused No.1. She has clarified that she
had received the first phone call about 2/3 days after Rachana had
returned to Nashik. PW11 has admitted that she had not stated in
her statement under section 161 Cr.P.C. that Rachana had called her
to CBS Nashik. She had also not stated that Rachana had come to
CBS to meet her and that the accused No.1 had quarreled with
Rachana and taken her back. She had also not stated that after the
said incident Rachana had once again phoned her and told her about
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the demand of money and ill-treatment meted out to her by the
accused. As rightly held by the learned trial judge these material
omissions are sufficient to discredit and discard the evidence of this
witness that Rachana had phoned her and told her about demand of
money and ill treatment.
13. PW11 had also stated that she and her mother i.e. PW10 had
visited Rachana in the hospital after her delivery and that Rachana
had told her that the accused were demanding money to purchase a
rickshaw for the brother of the accused No.1 and for the marriage of
the sister of the accused No.1. However, the evidence of PW11
indicates that the accused No.1 and his mother were present in the
hospital and hence, Rachana could not talk to them freely. The
evidence of PW11 does not corroborate that Rachana had
complained to her mother about any such demands or cruelty by the
accused.
14. PW10-Kasturbai Patil, the maternal grandmother of Rachana
also does not claim that Rachana had told her that the accused had
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demanded money from her or her family members. She has deposed
that Rachana had told her family that she was in need of Rs.15,000/-
for her delivery. Her statement that she had not talked to Rachana
prior to her delivery clearly indicates that she was not personally
aware about any such demands. She has deposed that parents of
Rachana were unable to pay the said amount. The testimony of this
witness therefore does not help the prosecution in proving that the
accused had compelled Rachana to demand money from her family
or that they had subjected Rachana to cruelty for not meeting the
said demand.
15. PW4-Nanak Rani, who is the neighbour of the first informant
claims that Rachana was staying with her parents about a month and
a half prior to her death. During the said period she had visited his
house. She appeared to be very quiet and on being questioned, she
told that her husband and his family members were harassing her
and were compelling her to bring money from her parents. The
evidence of this witness cannot be believed for a simple reason that
it is not the case of the prosecution that Rachana had stayed with her
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parents since about one and a half month prior to the incident. On
the contrary, the evidence on record reveals that Rachana having
married against the wishes of her parents had not been visiting their
house.
16. It is the case of the prosecution that Rachana had written letters
to her parents and informed that the accused were demanding
money and that they were ill treating her. PW3 had handed over
these three letters to PW15-Pandurang Shahane and the same were
attached under Panchanama at Exh.72 drawn in presence of PW-7
Ashok Gaikwad and Yasim Shaikh. PW15 also instructed PW3 to
provide writing of Rachana. Accordingly PW3 gave some pages from
a note book, which were allegedly the handwritten notes of Rachana.
The evidence of PW15 reveals that he had collected admitted
handwriting of Rachana from the first informant and forwarded the
same to the handwriting expert. The said disputed writing was
examined by PW14-Vishwas Ranjangaonkar and he has opined that
the disputed writing tallies with the writing forwarded to him as
admitted writing.
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17. The evidence of the expert witness at the most proves that the
letters (disputed document) and the handwritten notes, which were
stated to be admitted documents, were written by a same person.
The evidence of this witness does not carry forward the case of the
prosecution that these letters were written by Rachana. In order to
prove this fact, it was obligatory on the part of the prosecution to
prove that the writing in the letters tallied with the admitted writing
of Rachana. In other words, the comparison had to be between the
disputed handwriting and the admitted handwriting of Rachana. In
the instant case, the investigating officer had not attempted to
procure admitted handwriting of the deceased Rachana but he had
called upon the first informant to furnish admitted handwriting of
Rachana. The writing provided by the first informant (PW3) was
forwarded to the FSL for comparison without even verifying and
ascertaining that the said writing furnished by the first informant was
in fact the admitted hand writing of Rachana. This material
discrepancy is sufficient to discard the case of the prosecution that
the said letters were in the hand writing of Rachana. In such
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circumstances, the learned Trial Judge in my considered view has
erred in relying upon the said letters.
18. As stated earlier, the evidence on record clearly
reveals that Rachana had married the accused No.1 against the
wishes of her parents. Hence, there was no demand of dowry by the
accused No.1 and his family members either before the marriage or
at the time of the marriage. The complaints of ill-treatment and
demand for money were allegedly made after Rachana started living
with the accused at Nashik. It is to be noted that Rachana as well as
her parents were residing at Nashik despite which Rachana did not
visit her parents. The parents of Rachana also did not visit her after
receipt of the letters. They did not complaint to the police that the
accused were ill-treating Rachana. They did not feel the need to visit
her even during her pregnancy or to bring her home after her
delivery. The aforesaid circumstances indicate that all was not well
between Rachana and her parents and in this background; it is
difficult to believe that Rachana would write letters to her parents
and complain about the accused.
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cri apeal 105-99 .doc19. PW3 and PW11 have claimed that Rachana had phoned them
on 14th April, 1996 and told them that she was being assaulted and
requested them to take her back. Accordingly, PW3, PW11 and PW12
visited the house of the accused. PW3 claims that he had gone to the
house of the accused alongwith PW10 and PW12. He claims that
there was some altercation between them and the accused. He
further claims that the accused had snatched the child from the
hands of Rachana. PW3 has stated that he got an impression that
Rachana was severely assaulted; hence, he brought her home. It is
pertinent to note that PW3 had not lodged any complaint against the
accused for having assaulted Rachana. He had also not provided any
medical aid to Rachana. It is also to be noted that testimony of
PW11 and PW12 does not indicate that PW3 had entered the house
of the accused. The evidence of these witnesses is that PW3 and
PW11 had waited outside while PW12 had gone to the house of the
accused to bring Rachana. PW12 had stated that when he entered the
house, Rachana hugged him and told him that the accused were
assaulting her and requested him to take her back. He has admitted
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cri apeal 105-99 .docin his cross examination that he had not stated the said fact in his
statement under Section 161 of Cr.P.C. This is a material omission,
which is sufficient to discredit his version before the Court.
20. The charge against the accused is under section 498A IPC.
Having analyzed and appreciated the evidence, in my considered
view, the prosecution has failed to establish that the accused had
subjected the deceased Rachana to harassment or cruelty. The
prosecution has therefore failed to prove the essential ingredients of
the offence under Section 498 A of the IPC. Hence, the conviction
and sentence imposed against the accused by the impugned
judgment cannot be sustained.
21. Under the circumstances and in view of discussion supra, the
appeal is allowed. The impugned judgment is set aside. The
accused are acquitted of offence under Section 498 A r/w. 34 of the
IPC. Fine amount, if deposited be refunded to the accused. Their
Bail bond stand discharged.
(ANUJA PRABHUDESSAI, J.)
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