SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Shri Sanjay Dagadu Naikawadi vs The State Of Maharashtra on 14 October, 2019

1 26.apeal675.1999.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.675 OF 1999

Sanjay Dagadu Naikawadi.
Age : 33 years, Occ. Labourer.
R/o. Dhamani, Tal. Patan,
Dist. Satara. ..Appellant.
v/s.
The State of Maharashtra. ..Respondent.

Mr. Prasanna Shahane i/b. Milind Deshmukh, advocate for
appellant.
Mr. S.R. Agarkar, APP for State.

CORAM : SMT. SADHANA S. JADHAV,J.

DATE : OCTOBER 14, 2019.

JUDGMENT :

1 The appellant herein is convicted for the offence
punishable under section 498A of the Indian Penal Code and

sentenced to suffer R.I. for one year and to pay fine of Rs. 200/-

in default to suffer R.I. for 15 days. The appellant is also

convicted for the offence punishable under section 306 of the

Indian Penal Code and sentenced to suffer R.I. for five years

andn to pay fine of Rs. 200/- I.d. to suffer R.I. for 15 days.

By the Additional Sessions Judge, Satara vide Judgment and

Order dated 21st April, 1999 in Sessions Case No. 246 of 1994.

Talwalkar

::: Uploaded on – 16/10/2019 16/10/2019 22:21:12 :::
2 26.apeal675.1999.doc

Hence, this appeal.

2 Such of the facts necessary to decide this appeal are as

follows :

(i) The appellant herein was married to Hausabai, resident

of village Kolekarwadi on 7th May, 1994. That on 30/9/1994

police patil of village Dhamani had lodged a report contending

therein that on that day in the morning at about 6 a.m. father
of the appellant had informed him that his daughter-in-law

Hausabai had left the house in the morning. When they were

searching for her, they had found her footwear near the public

well and therefore, he suspected that in all probabilities, she had

committed suicide.

(ii) The police patil had further reported that the well is

deep and therefore, dead body cannot be seen. On the basis of

the said report, A.D. No. 30/1994 was registered under section

174 of the Code of Criminal Procedure, 1973. The police patil

had accompanied the police to the spot and with the help of

police they had removed the dead body of Hausabai @Manisha

from the well.

(iii) On the same day, the brother of Hausabai @ Manisha

had lodged report at Dhebewadi police station alleging therein

Talwalkar

::: Uploaded on – 16/10/2019 16/10/2019 22:21:12 :::
3 26.apeal675.1999.doc

that on 10/9/1994 his sister had been to his house. She had

informed her brothers that she was being harassed and ill-treated

at the hands of appellant and his mother and that they were

insisting upon her to get money from her brothers in Mumbai.

The appellant, who was working as Coolie in Mumbai, had also

taken his wife to Mumbai. She had also been to her brother to

demand money. However, her brother had refused to give

money. She had further informed that on the same night they

had tied her legs and had assaulted her. She was insisting upon
them to send her to her brother’s house. However, they refused

and that she was forcibly brought to village Dhamani.

(iv) Thereafter, Shripati Gaikwad, who was resident of

Kolekarwadi and was working in Mumbai had also approached

the brothers of the deceased and informed them that on

8/9/1994 he had seen the appellant pushing Hausabai into S.T.

bus. After about one week, the appellant had been to the house

of the informant and assured that he would not harass or ill-

treat his wife and on the said assurance, she was sent to her

matrimonial house and within 3 weeks thereafter, she had

committed suicide.

(v) On the basis of the said report Crime No. 51 of 1994
was registered at Dhebewadi police station. Investigation was

Talwalkar

::: Uploaded on – 16/10/2019 16/10/2019 22:21:12 :::
4 26.apeal675.1999.doc

set in motion. The scene of offence panchanama was

conducted on the same day in A.D. enquiry. It is indicated that

the well in which she had fallen had parapet wall of about 4 to

5 feet above the ground level. That an electric motor was

installed. The water was deep. After completion of

investigation, charge-sheet was filed.

3 At the trial the prosecution has examined 6 witnesses

to bring home the guilt of the accused.

4 P.W. 1 Khashaba Kolekar happens to be the brother of

deceased Hausabai @ Manisha. He has deposed before the

Court in consonance with the first information report which is

marked at Exh. 19. He had categorically stated that the

economic condition of their family was also poor and therefore,

they could not fulfill the demands of the appellant. He has also

stated that when the dead body of Hausabai was carried to

Cottage Hospital, Karad, he enquired with the appellant as to

why and when she had committed suicide. However, he had

maintained silence. There is no effective cross-examination,

which would shatter the witness. It appears from the tenor of

the cross-examination that the defence of the accused was that

the villagers used to go to the well in question for fetching
water and that she must have fallen in the well while fetching

Talwalkar

::: Uploaded on – 16/10/2019 16/10/2019 22:21:12 :::
5 26.apeal675.1999.doc

water.

5 P.W. 2 Shripati Gaikwad is the person who had

witnessed the appellant pushing Hausabai in S.T. Bus of Mumbai

on 8/9/1994. He had even intervened and questioned the

appellant as to why Hausabai was being assaulted and

thereupon, the appellant was of the opinion that he has no

business to intervene between them. According to him,

Hausabai was reluctant to board the bus and her husband and

mother-in-law were forcing her to board the bus. The witness

was also travelling in the same bus and he had disclosed to

P.W. 1 immediately on the same day. That he had seen the

appellant pushing her into the bus. The appellant had followed

her to the village and in his presence, she had disclosed that she

is being harassed and ill-treated at the hands of the appellant.

She had stayed there for a week.

6 It is pertinent to note that in the cross-examination

the witness was being suggested that his statement is not

recorded under section 161 of the Code of Criminal Procedure,

1973. However, upon perusal of charge-sheet, it can be seen

that his name is at Sr. No. 11 in the list of witnesses and the

very fact that he has been cross-examined would sufficiently
indicate that his statement under section 161 of the Code of

Talwalkar

::: Uploaded on – 16/10/2019 16/10/2019 22:21:12 :::
6 26.apeal675.1999.doc

Criminal Procedure, 1973 was recorded. The accused has failed

to shatter the testimony of the witness despite lengthy cross-

examination.

7 P.W. 3 Ramesh Kolekar is the brother of the

deceased who is residing at Mumbai and is engaged in

embroidery work. He had visited his sister on Rakshabandhan

festival and his sister had disclosed to him at that time also that

she is being harassed by her husband and according to her

husband, they were aggrieved by the fact that the brothers had

offered artificial ornaments in marriage and that she was

demanding golden ornaments for peaceful married life.

According to P.W. 3, demand was also made to another brother

who is residing in Mumbai prior to Rakshabandhan. On that

day, she had disclosed to the witness that she was brutally

assaulted by tying her hands and legs, because both the brothers

had refused to fulfill the demand. That she had been to her

house alongwith her husband and the witness had also attempted

to pacify the couple. His sterling testimony has not been

shattered in cross-examination.

8 P.W. 4 Kisan is another brother of deceased who is

residing in Goregaon, Mumbai and he has corroborated the
evidence of P.W. 3.

Talwalkar

::: Uploaded on – 16/10/2019 16/10/2019 22:21:12 :::
7 26.apeal675.1999.doc

9 P.W. 5 Dattu Gaikwad is police patil of village

Dhamani, on the basis of whose report, A.D. was registered and

has set law into motion. He has specifically stated that there is

water tap connection in every house, since water supply scheme

was introduced in the said village 20 years ago and therefore,

there was no question of going to the well to fetch water. In

the cross-examination, he has specifically stated that the

provision of “Rahat” is made applicable, whenever there was a

failure of water supply. It was only when there was failure of

electricity that the villagers had to go to well to fetch water. In

any case , it is not the defence of the accused that there was no

electricity on that day and therefore, she had to go to the well

to fetch the water.

10 P.W.6 Kashinath Krishnaji Katte is the Investigating

Officer. He has deposed before the Court about the steps taken

by him in the course of investigation.

11 It is pertinent to note that in the statement under

section 313 of the Code of Criminal Procedure, 1973, the

accused/appellant has stated that his wife was not behaving

properly. She used to leave house without his permission and

that he is innocent. In fact, charge was framed under section

Talwalkar

::: Uploaded on – 16/10/2019 16/10/2019 22:21:12 :::
8 26.apeal675.1999.doc

304(B) of the Indian Penal Code, since the wife of the

accused/appellant had died within 6 months after her marriage

and the Court had rightly drawn presumption under section

113(A) of the Indian Evidence Act.

12 In fact, this is a case of custodial death and it was

incumbent upon the appellant/accused to dislodge the onus

under section 106 of the Indian Evidence Act, which reads as

under :

“106. Burden of proving fact especially within knowledge
When any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.”

It is a matter of record that at the threshold itself father of the

appellant had expressed that Hausabai had committed suicide.

Moreover, her footwear were found near the well. Even when

the witnesses had enquired with the appellant about the

suspicious circumstances in which Hausabai had purportedly

committed suicide. He had maintained his silence.

13 Learned Counsel for the appellant has vehemently

submitted that the prosecution has failed to prove all the

ingredients of section 306 of the Indian Penal Code and
therefore, the accused deserves to be acquitted of the charge

under section 306 of the Indian Penal Code.

Talwalkar

::: Uploaded on - 16/10/2019 16/10/2019 22:21:12 :::
9 26.apeal675.1999.doc

14 The deceased was married to the appellant hardly 6

months before incident. She was taken to Mumbai. She was

forced to demand money and ornaments from both of her

brothers who were residing in Mumbai. P.W. 2 has stated that

just 3 weeks prior to the incident, he had seen the accused

persons forcing her into the bus. He had travelled in the same

bus and as soon as she returned to her village, she had disclosed

in the presence of her husband that she is being ill-treated at
the hands of her husband and mother-in-law. She had even

tried to leave her matrimonial house on 2 occasions. However,

due to poverty, her brothers could not fulfill the demands and

she was sent back to her matrimonial house on assurance given

by the appellant. Moreover, in the morning at 6 a.m. itself,

her father-in-law was sure that she had committed suicide. All
circumstances, if taken cumulatively, would clearly establish the

fact that Hausabai had no other alternative, but to commit

suicide since she could not take the harassment and ill-treatment

beyond a particular point. Sub-clause (a) of Section 498A of the

Indian Penal Code reads thus :

"498A. Husband or relative of husband of a woman
subjecting her to cruelty.--Whoever, being the husband
or the relative of the husband of a woman, subjects

Talwalkar

::: Uploaded on - 16/10/2019 16/10/2019 22:21:12 :::
10 26.apeal675.1999.doc

such woman to cruelty shall be punished with
imprisonment for a term which may extend to three
years and shall also be liable to fine. Explanation.--For
the purpose of this section, "cruelty" means--

(a) any willful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or"

15 The learned Counsel for the appellant upon instructions

submits that the appellant has got remarried in the year 1999
itself and he has 3 children to look after and there is nobody to

look after them. He has therefore, prayed for leniency. The

appellant was in custody from 30/9/1994 to 21/10/1994. He

was taken into custody on 21st April, 1999 i.e. on the date of

the Judgment and was enlarged on bail under section 389 of the

Code of Criminal Procedure, 1973 by this Court vide order dated

17/1/2000. The appeal was not being attended by the learned
Counsel for the appellant and therefore, the Court was

constrained to issue non-bailable warrant, which could not be

served for a long time and thereafter, he was arrested and

produced before this Court on 3rd October, 2019 and he was sent

to judicial custody on the same day. It is not a case where

leniency can be shown. However, since the appellant has

undergone approximately 10 months in custody, he deserves

some leniency in the sentence.

Talwalkar

::: Uploaded on - 16/10/2019 16/10/2019 22:21:12 :::
11 26.apeal675.1999.doc

16 Hence, following order is passed :

ORDER

(i) The appeal is partly allowed.

(ii) The conviction of the appellant for the offence

punishable under section 498A and 306 of the Indian Penal
Code passed vide Judgment and Order dated 21 st April, 1999 in
Sessions Case No. 246 of 1994 by additional Sessions Judge,
Satara is hereby maintained. However, order of sentence is
modified. The appellant is sentenced to suffer R.I. for 4 years.
Sentence of fine is maintained.

(iii)         Writ be issued forthwith.

17 The appeal is disposed of accordingly.

[SMT. SADHANA S. JADHAV, J.]

Talwalkar

::: Uploaded on - 16/10/2019 16/10/2019 22:21:12 :::

Leave a Reply

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


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

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