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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.315 OF 1997
WITH
CRIMINAL APPLICATION NO.1275 OF 2009
1 Sunil Ashok Pawar
Age 28,
2 Sou. Kamalabai Ashok Pawar
Age 42 yrs.,
Both r/o. Mauli Bungalow,
Ramdas Swami Nagar, Gandhinagar,
Nashik 6. ….Appellants
V/s.
The State of Maharashtra ….Respondents
None for Appellants.
Mrs. A.A.Takalkar, APP for the Respondent-State.
******
CORAM :- SANDEEP K. SHINDE, J.
DATE :- 3RD MARCH, 2018.
ORAL JUDGMENT :-
The Appellants were convicted by the learned
Additional Sessions Judge, Nashik under Sections 498A, 307 read
with Section 34 of the Indian Penal Code and sentenced to suffer RI
for one year and three years respectively by the order dated
17.5.1997 in Sessions Case No.187 of 1996.
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2 That against the aforesaid conviction, this Appeal is
preferred. It appears since period of sentence was less than three
years, during the pendency of this Appeal, execution of sentence
was suspended and the appeal was admitted. It further appears from
the record that both the accused were in custody from 4.7.1996 to
17.7.1996.
3 The Appellant No.1 is the son of the Appellant No.2.
Marriage of the Appellant No.1 with Rekha (“Complainant” for
short) was performed on 26.2.1995. It is the Complainant’s case
that she was subjected to harassment by the Accused as parents of
the Complainant did not offer any customary present to husband in
‘Adhik Mas’ soon after the marriage. It is her case that on this count,
her husband and mother-in-law were taunting and asking her as to
why they were not invited by her parents and extended the
hospitality. It appears from the evidence of Complainant (P.W.2) that
she was disclosing the alleged ill-treatment caused to her to her
parents. However, on assurance given by her Parents that everything
would be normal in the short span of time, she lived and co-habited
with the Accused No.1. It is her evidence that she was beaten up by
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the Accused Nos.1 and 2 in the presence of her relatives on the
small incident in June, 1996.
4 It is the prosecution’s case that on 1.7.1996 when Rekha
was at home, her husband caught hold her hands, gagged her nose
and mother-in-law Kamlabai poured liquid in her mouth.
Resultantly, she became restless, as liquid dripped into her stomach.
It is her specific case that after the incident, Accused left the home
and latched the door of the house from outside. The Complainant
would depose that as the door was latched from outside, she could
not seek help. She would depose that in the circumstances, she
called for help of neighbour whose house was alongside her house
as could be seen from the map produced on record. It is the
prosecution’s case that neighbour, Mrs. Chavan (P.W.3), who heard
loud cry of Rekha, called for help of one P.W.4 Santosh Borade,
rickshaw driver. It further appears that Rekha, was removed by
Mrs. Chavan and rickshaw driver to the clinic of Dr. Vasaikar who
then advised to admit her in the Civil Hospital. It is the prosecution’s
case that she was admitted in the Civil Hospital at 11 am on
1.7.1996. That she was examined by Dr. Matha at 11.50 a.m. and,
thereafter by Dr. Vyavahare. The prosecution has examined Dr.
Ravindra Ashtaputre P.W.5 who had also an occasion to treat Rekha.
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It is his evidence that on 4.7.1996, she was discharged from the
hospital. He deposed as Prosecution Witness and said that it was
the case of poisoning. A sample of omit of Rekha was sent to
Chemical Analyser which resulted in detection of organo
phosphorous insecticides as is evident from the C.A.Report. He
would further depose that had Rekha been not treated in the
hospital within reasonable time, she would have died. He further
stated that he could not tell how much quantity of organic
phosphorous insecticides is sufficient in the ordinary course of
nature to cause death.
5 It also appears from the record that the statement of
Rekha was recorded by the Special Executive Magistrate. Besides
statements of parents were also recorded. That after completing
investigation, charge-sheet came to be filed and Accused were tried.
The learned Judge convicted the Accused of the offences punishable
under Sections 307, 498-A read with Section 34 of the Indian Penal
Code and were sentenced to suffer RI for three years and one year
respectively. It is against this order of conviction, this appeal is
preferred.
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* 5/10 * 904-APEAL-315-1997.doc6 Heard the learned APP for the State. None appears for
the Appellants though called out repeatedly.
7 With the assistance of the learned APP, I have gone
through the records and proceedings and the evidence of the
prosecution witnesses.
8 The only question which is required to be answered is;
"Whether the prosecution has proved beyond reasonable doubt that
on the given date whether the Accused administered poison to
Rekha and attempted to cause her death."
It is also required to be answered whether prosecution has
proved that the residue of the poison found on the body of Rekha
was sufficient in the ordinary couse of nature to cause her death.
In my view, second question would be incidental if this Court
comes to conclusion that the prosecution has proved beyond
reasonable doubt that the Accused forcibly attempted to administer
poison to Rekha with an intention to cause her death.
9 Mrs. Takalkar the learned APP has taken me through
the evidence of P.W.2-Rekha and the evidence of neighbour-Mrs.
Chavan (P.W.3). She has also taken me through the evidence of
P.W.4- Mr. Santosh Borade, Rickshaw Driver.
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* 6/10 * 904-APEAL-315-1997.doc10 That after going through the evidence of Rekha, it
transpires that soon after the alleged administration of poison to her
by the Accused, the Accused left the house and locked the house
from outside. In the circumstances, she was not able to seek help or
to go out of the house. It is her case that in the circumstances, she
called for help of neighbour, which was responded by Mrs. Chavan
(P.W.3). I have also gone through the evidence of P.W.3 who in her
evidence would state that after hearing her loud cry and sensing
something was serious and wrong with Rekha, she called for the
help of P.W.4-Santosh Borade and requested him to call Doctor. She
would further say that when she entered the house of the accused,
she found doors were not latched and nobody was present in the
house.
Thus, question which falls for consideration is as to whether
the prosecution has proved the fact that soon after the alleged
incident, the Accused left the house and locked the same from
outside so as to prevent Rekha from seeking any help.
11 To ascertain this fact, I have also gone through the
evidence of P.W.4-Santosh Borade, who in his evidence does not
throw any light on this issue. This witness would depose that at the
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* 7/10 * 904-APEAL-315-1997.docrequest of Mrs. Chavan, he went to call Doctor. When he returned
home, he found Mrs. Chavan was inside the house. In the
circumstances, there is no evidence to hold that after the alleged
incident of administering poison, the Accused locked the house from
outside. It makes evidence of Rekha doubtful. Her evidence does not
inspire confidence. It is not corroborated by other evidence. Thus,
there is absolutely no evidence on record to accept the theory of
Rekha that soon after the alleged incident, Accused left the house
by locking the room from outside.
12 The learned APP has taken me through the evidence of
Investigating Officer as well as previous statements of Mrs. Chavan.
There was an attempt by the prosecution to contradict Mrs. Chavan
with her previous statement recorded by the Police. However, this
contradiction alone is not sufficient to hold that doors of the house
were locked by the Accused from outside after the incident so as to
prevent Rekha from seeking any help.
13 That even otherwise after going through the evidence of
witnesses and particularly that of P.W.4-Santosh Borade and
neighbour, Accused were not found in the house soon after the
incident. Evidence of Rekha (P.W.2) if read along with the evidence
of Dr. Ashtaputre (P.W.5), one more fact surfaces in the evidence is
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* 8/10 * 904-APEAL-315-1997.docthat Rekha appears to have not offered any resistance to the alleged
attempt by the Accused to administer poison to her. Her evidence is
silent on this aspect, which appears to be not a natural. More so,
map on record would indicate that house of the Accused was
surrounded by the other houses and at the given point of time also,
it appears window of the house was not closed. That as a natural
conduct, Rekha ought to have offered some resistance. However, she
did not whisper about such resistance in her evidence. More so,
there is no medical evidence on record to indicate or even suggest
remotely that Rekha had offered any physical resistance to the
Accused when they attempted to give poison to her.
14 Thus, after taking the survey of entire evidence on
record, the prosecution has not proved beyond reasonable doubt
that at the first place, there was an attempt by giving poison to
Rekha by the Accused. I hold so, because evidence of Rekha is not
reliable. It appears event of latching of door from outside was set-
up by Rekha to make the intention of Accused louder. Secondly,
there is no evidence to hold beyond reasonable doubt, that after the
incident, the Accused Nos.1 and 2 locked the house from outside.
More so, the evidence of Dr. Ashtapure does not show as to how
much quantity was allegedly given to Rekha by the Accused so as to
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* 9/10 * 904-APEAL-315-1997.doccause her death in the natural course. Thus, in my view, the
prosecution has failed to prove that the Accused attempted to poison
Rekha and caused her death.
15 Accused were also prosecuted and convicted for the
offence punishable under Section 498A of the Indian Penal Code.
Rekha in her evidence would narrate only the incident of not
offering any customary present to her husband in 'Adhik Mas' by her
parents. She would say that on this count both the Accused were
unhappy and were taunting Rekha to extend the appropriate
hospitality to them by her parents. She would further depose that in
June, 1996, she was also beaten up by the Accused Nos.1 and 2 in
the presence of her relatives. In my view, evidence of Rekha is falling
short of requirement to hold that she was recurringly harassed and
was ill-treated at the hands of the Accused for not meeting unlawful
demands or otherwise. In view of these facts, I hold that the
prosecution has equally failed to prove that the Accused were ill-
treating Rekha for not meeting unlawful demands or otherwise so as
to hold them guilty for the offence punishable under Section 498-A
of the Indian Penal Code.
16 It appears from the record that parties had filed
proceedings under the Hindu Marriage Act being Petition No.25 of
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* 10/10 * 904-APEAL-315-1997.doc2006 wherein the disputes between the husband and wife has been
settled and marriage between the parties was dissolved.
17 In view of the discussion aforesaid and the reasons
recorded, the Appeal is allowed. Conviction and the sentence
recorded against them in Sessions Case No.187 of 1996 by the
Additional Sessions Judge, Nashik dated 17.5.1997 is hereby
quashed and set aside. Bail bonds executed by the Accused stand
cancelled. Muddemal property, if any, preserved may be disposed of
after three months.
18 The Appeal is allowed and disposed of accordingly and
Criminal Application No.1275 of 2009 therein does not survive and
stands disposed of accordingly.
(SANDEEP K. SHINDE, J.)
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