Bombay High Court Ramdas S/O Kachru Wadkar And Anr.-vs-State Of Maharashtra And Anr. on 25 October, 2005
Equivalent citations:2006 CriLJ 1156, 2006 (1) MhLj 240
Author: S Kukday
Bench: S Kukday
S.P. Kukday, J.
1. Rule. Rule made returnable forthwith. With the consent of the respective Advocates, matter is taken up for hearing.
2. Applicants have impugned the order dated 8th July, 2005 passed by the learned 3rd Ad hoc Additional Sessions Judge (below Exh. 6) in Sessions Case No. 37/2005 dismissing the application for discharge of the accused.
3. The facts of the case in brief are that complainant Bansi Sukhlal Kuklare resides at Dongaon Tq. Gangapur, Dist. Aurangabad with his parents brother Ramlal and six sisters. Out of them, the youngest is Lalitabai who married applicant No. 1 Ramdas, about five years back. After marriage, deceased Lalita started living with her husband at Sillod. Applicant No. 1 was serving as a Teacher at Sillod. Two sons namely, Sachin, Aged 4 years and Akshay, aged 2 years are born within the wedlock. Relationship between the spouses was cordial for first two years. Thereafter, both the applicants started insisting that Lalita should reside at Gevrai Gungi to help the family in the cultivation of the field. Lalita was not willing to reside at Gevrai Gungi. Therefore, applicants started demanding Rs. 1 lakh for buying a motorcycle and a plot. Since the demand was not satisfied, deceased Lalita was subjected to ill-treatment. On 24-11-2004 complainant Bansi had been to matrimonial house of his sister for bringing her to the parental house on the auspicious occasion of Diwali. On that occasion, applicant No. 1 Ramdas, his brother Karbhari slapped Bansi and did not allow Lalita to accompany his brother. Ramdas told complainant that he should pay Rs. 1 lakh if he desires to take the deceased to her parental house. Bansi was also told that till the morning he will get a message that his sister has been killed. On the next day i.e. 25-11-2004 at about 6.30 a.m. indeed a message was received regarding the demise of Lalita. On receipt of the message, complainant, his parents and close relatives went to the Government Hospital at Phulambri. The last rites on the dead body of Lalita were performed at Gevrai Gungi. Bansi then lodged report with the police on the basis of which offence has been registered for offences punishable under Sections 498A and 306 read with Section 34, Indian Penal Code.
4. After filing of charge-sheet applicants filed application Exh. 6 for discharge on various grounds. This application came to be rejected by the 3rd Ad hoc ADJ Aurangabad on 8-7-2005. This order has been impugned in the present application.
5. Learned Counsel for the applicants contends that there are several contradictions between the statements of witnesses, so also the allegation in respect of demand of Rs. 1 lakh is not substantiated. It is contended that the deceased was living with her husband for five years. During this period, no complaint was filed against the husband, therefore merely because the death had occurred within seven years, it cannot be said that presumption under Section 113A of Evidence Act can be raised in favour of the prosecution. It is further contended that the possibility of deceased having met accidental death cannot be ruled out. Learned Counsel, therefore, submits that the application for discharge should have been allowed. Thus, impugned order deserves to be quashed.
6. Prosecution case is narrated by Bansi, brother of the deceased. In the FIR, Bansi has referred to the demand of Rs. one lakh, the ill-treatment of deceased Lalita and the incident which took place just prior to the demise of Lalita. Similar story is narrated by all other witnesses including father Sukhlai, mother Mumlabai and Sahebrao, Karbhari has stuck to the facts known to him. What is required to be ascertained at this stage is whether there are sufficient grounds for proceeding. At this stage the statements of witnesses are to be accepted as they are. It can be seen from the statement of witnesses that there is a consensus between them on the point of ill-treatment on account of inability of the parents of deceased to meet demand of Rs. one lakh. It can also be seen the applicant No. 1 and his brother slapped complainant and told him that his sister would be dead if money is not paid just few hours before the occurrence. There are no contradictions in the statements on this point. Having regard to the statement of these witnesses omission to refer to the demand of money by Karbhari cannot be magnified. Thus, there is sufficient material on record to proceed with the framing of charge.
7. Learned Counsel for the applicants contends that a possibility of accidental death cannot be ruled out. However, there is no material on record to substantiate this contention. During the course of arguments, learned Counsel placed reliance on the rulings of this Court reported in 2004(4) Mh.L.J. 366, Suresh Bhagwat v. State of Maharashtra. In that case marriage had taken place 12 years prior to the occurrence. Considering the evidence on record this Court observed that the defence of alleged accidental death due to fall in the well is possible. Facts of this case are totally different. In the present case, there is no material on record to justify the possibility of accidental death. Therefore, the applicants cannot derive any benefit from this ruling.
8. Learned Counsel for the applicants has also referred to the ruling of the Apex Court in the matter of Arun
Vyas and Anr. v. Anita Vyas and Anr. In that case it is observed in para No. 9 of the report that Section 239 has to be read with Section 240, Criminal Procedure Code. If the Magistrate finds that there is a prime facie evidence or the material against the accused in support of the charge (allegations) he may frame charge in accordance with Section 240, Criminal Procedure Code. But if he finds that the charge made against the accused do not make out a prima facie case and do not furnish basis for framing of charge. It will be a case of charge being groundless, so he has no option but to discharge the accused. There is no dispute about the proposition. It this behalf reference can be made to the ruling of the Apex Court in the
matter of State of Madhya Pradesh v. S.B. Johri. In para No. 4 of the report the Apex Court has observed that, “in our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the material on record for coming to the conclusion that that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that with the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence.
9. The settled principle is that the material on record has to be considered to arrive at the conclusion whether there are sufficient grounds for proceeding against the accused. At this stage, the statements are to be accepted as they are. If the statements would result in conviction if they remain unrebutted, then the charge can be framed against the accused. The enquiry envisaged at this stage is not a roving enquiry. The approach has to be pragmatic. Similar view is taken by the Apex Court in in the matter of Dilawar v. State of Maharashtra. In para No. 12 of the report the Apex Court has observed that in exercising powers under Section 227 of the Criminal Procedure Code the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out, where the material placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial, by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Criminal Procedure Code the Judge cannot act merely as a post office or mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court but should not have made a roving enquiry into the pros and cons of the matter and weighed the evidence as if he was conducting a trial.
10. Applying these principles to the present case, it can be seen that the complainant Bansi, his parents Mumlabai and Sukhlal and relative Sahebrao consistently make a statement that two years after the marriage there was a demand of Rs. 1 lakh for purchasing plot and motorcycle, the motorcycle was to be purchased so that spouses to visit Gevrai Gunji. However as the payment was not made deceased was subjected to cruelty. There is reference to the incident which took place just few hours before the death of Lalita when complainant had been to her house for bringing her for Diwali speaks volumes. In the face of the material on record, the contention that no case for ill treatment is made out and the allegation in respect of demand cannot be sustained. It is also pertinent to bear in mind that the presumption in respect of the dowry death has to be drawn as enjoined by law. For this purpose, learned trial Judge has rightly referred to the ruling of the Apex Court in the matter of R.S. Naik v.
A.R. Antulay to come to the conclusion that the presumptions can be raised for the purpose of framing of the charge.
11. Having regard to the material on record, there is no reason to interfere in the order passed by the learned Addl. 3rd Additional Sessions Judge, Aurangabad dated 8-7-2005. Application, therefore, fails and is rejected. Rule discharged.