1/15 apeal-966-03(211).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CRIMINAL JURISDICTION
CRIMINAL APPEAL NO. 966 OF 2003
The State of Maharashtra ) ….Appellant/Complainant
V/s.
1 Vijay Maruti Bombale )
Aged 23 yrs. )
2 Maruti Mhatarba Bombale )
Aged 70 yrs )
3 Rajendra Dnyaneshwar Bombale )
Aged 28 years, )
4 Dnyaneshwar Mhatarba Bombale )
Aged 50 years, )
5. Sou Janabai Dnyaneshwar Bombale )
Aged 45 years, )
Occupation of above all )
Agriculturists and )
R/o Dhamale Shivar – Kadus )
Tal Khed, District Pune )
6 Bapusaheb Mahadeo Bombale )
Aged 32 yrs., Occu-Service )
R/o Near Khandoba Mandir, )
Abhilyadevi Chowk, )
Rajgurunagar, Dist Pune ) ….Respondents/Accused
CORAM : K.R.SHRIRAM, J.
DATE : 19th DECEMBER 2019
ORAL JUDGMENT:
1 This appeal is filed impugning an order and judgment dated 29-
5-2003 passed by the learned Vth Adhoc Additional Sessions Judge, Pune,
acquitting 6 accused of offences punishable under Sections 498A, 306, 201
Meera Jadhav
::: Uploaded on – 21/12/2019 21/12/2019 20:28:59 :::
2/15 apeal-966-03(211).doc
read with Section 34 of the Indian Penal Code. Initially the prosecution had
charged the accused with offences punishable under Sections 498A
(husaband or relative of husband of a woman subjecting her to cruelty ), 302
(punishment for murder), 201 (causing disappearance of evidence of
offence, or giving false information to screen offender ) read with Section 34
(Acts done by several persons in furtherance of common intention ) of SectionIPC.
Prosecution later filed an application to reduce the charge from Section 302
to Section 306, since the postmortem report indicated that the death is by
committing suicide and not murder.
2 The case of prosecution in brief is that complainant Prabhakar
Padval (P.W.-1) had 6 daughters and 1 son. The 4 th daughter was Jayshree,
who was married to accused no.1 on 27-5-2001. Accused nos.4 and 5 were
the biological parents of accused no.1. Accused no.1 was given on adoption
to accused no.2 about 6 months before the marriage. Accused no.3 is the
son of accused nos.4 and 5 and accused no.6 is a relative, who was living in
Pune.
3 After marriage, Jayshree went to live in her matrimonial home.
Some days after marriage, it seems, Jayshree visited her parental home for 2
or 3 days and then again went back to her matrimonial home. During the
brief stay in the parental home, Jayshree is stated to have informed that she
was being harassed at her matrimonial home and that the accused were
beating her, not giving her enough food and also accused no.1 was
Meera Jadhav
::: Uploaded on – 21/12/2019 21/12/2019 20:28:59 :::
3/15 apeal-966-03(211).doc
demanding money for buying a Hero Honda Motor Cycle. After 15 days,
Jayshree went again to her parental home, at which time, she stayed for 4
or 5 days and during that stay also Jayshree mentioned about the ill
treatment and the demand for money to buy the Motor Cycle.
4 During Gokulashtmi, complainant (P.W.-1) along with his cousin
(P.W-4) Vitthal Padval, went to the matrimonial home of Jayshree, at which
time, Jayshree also complained to them about the ill treatment and demand
of money. It seems, P.W.-1 spoke to the in-laws of Jayshree and made them
realise that they should not ill treat Jayshree. On 18-8-2001 in the morning,
complainant (P.W.-1) received a message from one Dnyaneshwar Dhamale
(who has not been examined) that Jayshree was dead. Therefore, P.W.-1
went to the matrimonial home of Jayshree along with his nephew Namdeo
Padval (who also has not been examined) when he found Jayshree’s dead
body and P.W.-1 observed legature marks on her neck. Thereafter, P.W.-1
went to the police station and informed about the incident. Police visited
the spot and prepared inquest panchnama and sent body for postmortem.
Subsequently, police prepared spot panchnama and after postmortem, the
body of Jayshree was handed over to P.W.-1, who took the body to his village
and performed the final rites.
5 P.W.-1 has lodged the complaint in the intervening night
between 18-8-2001 and 19-8-2001 in the police station, alleging that the
accused have ill treated Jayshree on account of demand of money for
Meera Jadhav
::: Uploaded on – 21/12/2019 21/12/2019 20:28:59 :::
4/15 apeal-966-03(211).doc
purchase of Motor Cycle and made her life miserable and thereafter
murdered her. Based on that complaint, offence was lodged and charge
sheet for offences punishable under Sections 498A, Section302, Section201 and Section34 of IPC,
was filed before the JMFC, Khed. JMFC Khed, committed the case to the
court of Sessions, as the offence punishable under Section 302 of IPC was
exclusively triable by the court of Sessions.
6 In the light of these facts and circumstances, charge was framed
under Sections 498A, Section302, Section201 and Section34 of IPC, to which, all the accused
pleaded not guilty and claimed to be tried. Their defence is of total denial
and according to the accused, they are falsely implicated in the case.
7 During the pendency of trial, after recording the evidence of
three prosecution witnesses, which included P.W.-2 Dr. Sandip Sonawane,
the medical officer, who conducted the postmortem and gave the
postmortem report (Exhibit-20), the prosecution moved an application
under Section 216 of CrPC to alter the charge to 498A, 306, 201 and 34 of
SectionIPC, in view of the evidence of P.W.-2, who opined that the cause of death
was by hanging, i.e., suicide and not murder. Complainant himself moved a
separate application not to delete the charge under Section 302 of IPC, but
to keep it, as it is. The Trial Court after hearing the parties allowed the
application of the prosecution and dismissed the application of complainant
and altered the charge from Section 302 to Section 306 of IPC. The
modified charge was read over and again the accused pleaded not guilty
Meera Jadhav
::: Uploaded on – 21/12/2019 21/12/2019 20:28:59 :::
5/15 apeal-966-03(211).doc
and claimed to be tried. While the application for modification of charge
was pending, prosecution examined three more witnesses.
8 In support of its case, prosecution has examined in all 6
witnesses, i.e., Prabhakar Genbhau Padval -complainant/father of Jayshree
(P.W.-1), Dr. Sandip Sonawane, who perform postmortem (P.W.-2), one Jaya
Shelke, a cousin of Jayshree (P.W.-3), Vitthal Rakhma Padval, who is
neighbour of P.W.-1 (P.W.-4), Ramchandra Namdeo Pathare, Investigating
Officer (P.W.-5) and Jaywant Jijaba Chavan, retired Head Constable (P.W.-6).
9 The documents produced by the prosecution were all admitted.
During the course of recording of statement under Section 313 of CrPC by
way of defence, the accused also placed certain documents on record as per
the list at Exhibit 75. After hearing the parties, production of those
documents was also allowed and received in evidence. Documents at Sr.
Nos.1 to 3 of the list, pertains to Hero Honda Motor Cycle in the name of
accused no.1 and loan taken by him for its purchase. Document at Sr. No.4
pertains to ration card of the accused, in which one ration card had names
of accused nos.1, 3, 4 and 5 and the other ration card had name of accused
no.2 and the third ration card had the name of accused no.6, to indicate
that they were living separately.
10 After hearing the parties and considering the evidence, the Trial
Court pass the order of acquittal, which is impugned in this Appeal. The
Learned APP submitted that the accused were harassing and ill treating
Meera Jadhav
::: Uploaded on – 21/12/2019 21/12/2019 20:28:59 :::
6/15 apeal-966-03(211).doc
Jayshree by unlawfully demanding Hero Honda Motor Cycle. The Learned
APP invited court’s attention to the evidence of P.W.-1 and P.W.-4. The
Learned APP also relied on evidence of P.W.-3, who was married in the same
village as that of Jayshree and who lived just about 5 minutes away from
Jayshree. The Learned APP submitted that Jayshree could not bear the
harassment on the part of the accused and all the accused, therefore,
abetted the commission of suicide by Jayshree. To conclude, the Learned
APP submitted that the accused were harassing Jayshree by unlawfully
demanding money for purchase of the Motor Cycle and unable to bear the
constant harassment and demand, Jayshree committed suicide, abetted by
the accused and hence all the accused have to be convicted.
11 Mr. Patil, of course defended the impugned judgment and
submitted that the evidence of none of the witnesses can be taken to have
proved the offence under Sections 498A or 306 or 201 of SectionIPC.
Having considered the evidence, I am in agreement with Mr.
Patil.
12 Going straight to the evidence of P.W.-3, there are material
omissions and improvements in her testimony. According to P.W.-3 Jaya
Shelke, who is the cousin of Jayshree, who got married on the same day and
venue as Jayshree and who went to reside in the same village at a walking
distance of 5 minutes away where Jayshree lived, has testified that
whenever she used to go to fetch water and wash clothes, Jayshree used to
Meera Jadhav
::: Uploaded on – 21/12/2019 21/12/2019 20:28:59 :::
7/15 apeal-966-03(211).doc
also come there and used to tell her about the ill treatment at the hands of
the accused. P.W.-3 in her testimony, had stated that Jayshree allegedly told
her that the members of Jayshree’s in-laws house were all ill treating her
and her husband, i.e., accused no.1 used to beat her and make demand of
money to buy a motor cycle. P.W.3 also says she met Jayshree on the day
prior to her death when she went to wash clothes and at that time also
Jayshree told her about the harassment and that Jayshree’s husband
threatened to kill her by hanging. In the cross-examination, P.W.-3 agrees
that in the statement recorded by the police, she has not informed the police
that Jayshree used to meet her when she used to fetch water and to wash
clothes and that she used to go to house of Jayshree and meet the family
members of Jayshree and explained to them not to harass Jayshree and that
on the day before her death Jayshree informed her that her husband
threatened to kill her. These are very serious omissions and it confirms that
P.W.-3 has only improvised her case. P.W.-3 also states that she had no
occasion to inform anybody about whatever Jayshree has informed her. This
is despite the fact that P.W.-4 and P.W.-1 have stated that they went to the
matrimonial home of Jayshree on Gokulashtmi and before going to
Jayshree’s house, have visited the house of P.W.-3 since their houses are near
to each other’s house. Even at that stage, P.W.-3 did not inform P.W.-1 or
P.W.-4 about what all Jayshree has informed her. Therefore, this evidence of
P.W.-3 is not credible.
Meera Jadhav
::: Uploaded on – 21/12/2019 21/12/2019 20:28:59 :::
8/15 apeal-966-03(211).doc
13 As regards P.W.-4, he has in his testimony stated that Jayshree
used to visit her parental home and when he inquired about her marital life,
she informed him that her in-laws were ill treating her and also making
demand of money to buy Hero Honda Motor Cycle. P.W.-4 says that police
did not record his statement and the incidence narrated by him in the
examination-in-chief was for the first time stated before the court and he
had no occasion to disclose that to anybody till his testimony was recorded.
Later, P.W.-4 says in his cross-examination that his statement was recorded
by the police. Strangely, that statement is not produced on record by
prosecution. P.W.-4 also says that when he went to the matrimonial home of
Jayshree on Gokulashtmi day, she was not present at home as she had gone
to the field and he also did not meet any members of her in-laws.
Significantly, P.W.-4 along with P.W.-1 had visited P.W.-3 before going to
Jayshree’s house, but P.W.-3 says she never informed P.W.-1 or P.W.-4 about
the alleged ill treatment to Jayshree. If there was any ill treatment to
Jayshree by the accused and P.W.-3 was aware of that, I see no reason why
P.W.-3 would not have disclosed it to P.W.-1, who is the father of Jayshree, as
well as P.W.-4, who is the neighbour of P.W.-1. Therefore, in my view, the
evidence of both these witnesses, i.e., P.W.-3 and P.W.-4, are full of
improvements, discrepancies and omissions. Evidence of P.W-4 also,
therefore, is not credible.
14 Coming to the prime witness, i.e., P.W.-1, who is the father of
Meera Jadhav
::: Uploaded on – 21/12/2019 21/12/2019 20:28:59 :::
9/15 apeal-966-03(211).doc
Jayshree, admittedly, P.W.-1 and his relatives were present when police was
preparing inquest panchnama of Jayshree and also spot panchnama.
According to P.W.-1, the procedure took about 3 to 4 hours when the police
also was there. P.W-1 was also present at Khed, when the dead body of
Jayshree was brought for postmortem and after postmortem, the body was
handed over to him for funeral. Even though P.W.-1 was in the company of
police for nearly 12 hours, he did not make any complaint to the police
about the ill treatment or the cause of death of Jayshree. Similarly, even on
inquiring by the police also, he did not make any complaint. Even his
relatives did not raise any sort of grievance about the unnatural death of
Jayshree. Even, while taking the dead body of Jayshree, P.W.-1 did not raise
any grievance. Therefore, the conduct of P.W.-1 raises or creates a doubt and
suspicion about so called harassment of Jayshree at the hands of the
accused.
15 P.W.-5, Investigating Officer, says that on 19-8-2001 he recorded
the statements of Devidas Padwal and 10 others. Who are those 10 others,
has not been disclosed. In the charge sheet, 28 witnesses have been listed.
Even if we discard the need of panch witness to be examined in view of the
admission of documents by the accused, still that would leave at least 20
other witnesses. As against that, only 6 witnesses have been examined
including complainant (P.W.-1). P.W.-5 also says, on 21-8-2001, he recorded
the statements of 7 witnesses. Who they are, has not been mentioned and
Meera Jadhav
::: Uploaded on – 21/12/2019 21/12/2019 20:28:59 :::
10/15 apeal-966-03(211).doc
they have also not been called to depose. Similarly, P.W.-5 says, on 24-8-
2001, he recorded the statements of 4 witnesses. Who they are, is not
mentioned and they also have not been called to depose. In his cross-
examination, P.W.-5 says that P.W.-3 Jaya Shelke in her statement did not
state when she used to go to fetch the water and wash clothes Jayshree used
to meet her. P.W.-5 also says that P.W.-3 did not state that she used to go to
the house of Jayshree to pacify her. P.W.-5 also says that P.W.-3 has not
stated in the statement that on the day before Jayshree’s death, when she
went to wash clothes, Jayshree even met her. P.W.-5 also states that he had
even sent letter to the mother and sister of Jayshree, who despite reminders,
did not come forward to give their statements. P.W.-5 says that he has
recorded the statements of neighbours of Jayshree, i.e., Shantaram
Dhamale, Dattatray Dhamale, Dadabhau Dhamale and Sushila Dhamale and
some others. None of them have been called to depose. P.W.-5 also says that
the address of accused no.6 Bapusaheb is shown as Ahilyadevi Chowk,
Rajgurunagar, Dist Pune, which confirms that accused no.6 was not residing
in the matrimonial home of Jayshree or even in its close vicinity. There is
nothing on record as to why accused no.6 was included as an accused. All
allegations made are rather general. Role of each accused has not been
spelt out, except the demand by accused no.1 for money to buy a Motor
Cycle.
16 As regards the evidence put forth regarding demand of money
Meera Jadhav
::: Uploaded on – 21/12/2019 21/12/2019 20:28:59 :::
11/15 apeal-966-03(211).doc
for purchase of Motor Cycle, I am unable to accept the allegations. This is
because on record, are documents at Sr. Nos.1 to 3 in the list at Exhibit 75,
which shows that accused no.1 was having a Motor Cycle even before he got
married to Jayshree on 27-5-2001. The documents also indicate that
accused no.1 had taken a loan from Rajguru Nagar Sahakari Bank Ltd., to
purchase the Motor Cycle and the entire loan had been repaid even before
the marriage. P.W.-1 has also admitted in his cross-examination that accused
no.1 was using a Motor Cycle and he had agricultural land, which was good.
That also indicates that accused no.1 was financially sound.
17 As regards Section 306 of IPC, there is no evidence to speak off.
Here is the case of abetment by instigation. The word ‘instigate’ means to
goad or urge or forward or to provoke, incite, or encourage to do an
untoward act which that person would have otherwise not done. It is also
well settled that in order to amount to abetment, there must be mens rea.
Without knowledge or intention, there can be no abetment and the
knowledge and intention must relate to the act said to be abetted, i.e.,
suicide, in this case. In order to constitute ‘abetment by instigation’, there
must be a direct incitement to do the culpable act. The word ‘instigate’
denotes incitement or urging to do some drastic or unadvisable action or to
stimulate or incite. Presence of mens rea, therefore, is the necessary
concomitant of instigation.(Sanju alias Sanjay Singh Sengar V/s. State of
Meera Jadhav
::: Uploaded on – 21/12/2019 21/12/2019 20:28:59 :::
12/15 apeal-966-03(211).doc
Madhya Pradesh)1. There is no evidence to suggest or indicate that the
accused knew or had reason to believe that deceased would commit suicide.
Even if any acts or words uttered by the accused or their conduct are
sufficient to demean or humiliate the deceased and even to drive the
deceased to suicide, such acts will not amount to instigation or abetment of
commission of suicide, unless it is established that the accused intended by
their acts that the deceased must commit suicide. It is not enough if the acts
of the accused cause persuasion in the mind of the deceased to commit
suicide. As held by the Kerala High Court in Cyriac, S/o Devassia and
another V/s. Sub-Inspector of Police, Kaduthuruthy and another 2, it is not
what the deceased ‘felt’, but what the accused ‘intended’ by her act which is
more important in this context.
18 There are many other points, which have been raised by the
Trial Court Judge in the impugned judgment, which for the sake of brevity, I
am not reproducing.
19 In view of the above and having considered the evidence,
prosecution has failed to drive home the charge under either Section 498A
or Section 306.
20 I have to observe, prosecution has accepted blindly opinion of
the doctor (P.W.-2) that it was a case of suicide. I do not find anywhere, and
learned APP also agrees, that the prosecution has examined whether
1. (2002) 5 SCC 371
2. 2005 SCC Online Ker 346
Meera Jadhav
::: Uploaded on – 21/12/2019 21/12/2019 20:28:59 :::
13/15 apeal-966-03(211).doc
Jayshree could have committed suicide in the bathroom. Even if, one
accepts the statement of P.W.-5 that the bathroom was having an height of
5 ft x 10 inches and Jayshree’s height was only 4 ft x 7 inches, I ask myself,
was there a hook in the bathroom strong enough for somebody to hang from
that or take the weight of a full grown human adult ? Such hooks are
normally found in the rooms for hanging a ceiling fan. Secondly, Jayshree
has hung herself to death by a rope. I find no evidence, as to whether the
prosecution even bothered to check about the finger prints on the rope, how
was the rope tied to the hook or the ceiling from where Jayshree hung
herself to death.
21 As regards the charge under Section 201, in order to prove the
charge prosecution has to establish that the accused knowing or having
reason to believe that offence had been committed had caused the evidence
to disappear. Investigating Officer did not even point out that any evidence
had disappeared or when he prepared the panchnama of the spot bathroom,
where Jayshree was found hanging.
22 As regards accused no.3, who is alleged to have given false
information in his statement recorded under Section 313 of CrPC, he
submits that he went to the police station and only gave information that
Jayshree was dead.
23 The Apex Court in Chandrappa Ors. V/s. State of Karnataka 3
3. (2007) 4 SCC 415
Meera Jadhav
::: Uploaded on - 21/12/2019 21/12/2019 20:28:59 :::
14/15 apeal-966-03(211).docin paragraph 42 has laid down the general principles regarding powers of
the Appellate Court while dealing with an appeal against an order of
acquittal. Paragraph 42 reads as under :
"42. From the above decisions, in our considered view, the following
general principles regarding powers of appellate Court while dealing
with an appeal against an order of acquittal emerge;(1) An appellate Court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is founded;(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an appellate
Court on the evidence before it may reach its own conclusion, both on
questions of fact and of law;(3) Various expressions, such as, 'substantial and compelling reasons',
'good and sufficient grounds', 'very strong circumstances', 'distorted
conclusions', 'glaring mistakes', etc. are not intended to curtail
extensive powers of an appellate Court in an appeal against acquittal.
Such phraseologies are more in the nature of 'flourishes of language'
to emphasize the reluctance of an appellate Court to interfere with
acquittal than to curtail the power of the Court to review the evidence
and to come to its own conclusion.(4) An appellate Court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the the accused.
Firstly, the presumption of innocence available to him under the
fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the finding
of acquittal recorded by the trial court."24 There is an acquittal and therefore, there is double presumption
in favour of accused. Firstly, the presumption of innocence available to the
accused under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless they are proved guilty
Meera Jadhav
::: Uploaded on - 21/12/2019 21/12/2019 20:28:59 :::
15/15 apeal-966-03(211).docby a competent court of law. Secondly, accused having secured their
acquittal, the presumption of their innocence is further reinforced,
reaffirmed and strengthened by the trial court. For acquitting accused, the
Sessions Court in Appeal rightly observed that the prosecution had failed to
prove its case.
25 In the circumstances, in my view, the opinion of the Trial Court
cannot be held to be illegal or improper or contrary to law. The order of
acquittal, in my view, need not be interfered with.
26 Appeal dismissed.(K.R. SHRIRAM, J.)
Meera Jadhav
::: Uploaded on - 21/12/2019 21/12/2019 20:28:59 :::
