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The State Of Maharashtra vs Vijay Maruti Bombale & Ors on 19 December, 2019

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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in 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

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by 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.)

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