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2005 DIGILAW 1125 (BOM)

Atul s/o. Atmaram Sawale v. State of Maharashtra

2005-08-29

J.N.PATEL, R.C.CHAVAN

body2005
R.C. CHAVAN, J. :- Out of eight accused persons, who were tried before the learned Additional Sessions Judge, Buldhana, four were convicted by him for offences punishable under Sections 498-A and 306 read with Section 34 of the Penal Code and sentenced to suffer varying terms of imprisonment and fines. By preferring Criminal Appeal No.215 of 1994, these convicts have challenged their conviction and sentences. The State has preferred Criminal Appeal No.314 of 1994, taking exception to the lenient sentences awarded by the learned Additional Sessions Judge. This judgment disposes of both these appeals. 2. Facts, which led to prosecution of the convicts, are as under: 3. Victim Kaveri was married to accused Atul, son of accused Atmaram and Kusum and brother of accused Ashok, on 18-21990. Since her parents had been divorced, Kaveri had been brought up by her grandfather, an affluent landlord. The financial condition of the family of convicts was also good. They stayed at Village Dongarshewali, within the jurisdiction of Police Station Amdapur, District Buldhana. The convicts ill-treated Kaveri to coerce her to get a sum of Rs.20,000/- or motor cycle from her parents. She had reported this ill-treatment to her relations. On 18-8-1990, Kavari's dead body was found in a well situated in the field of Atmaram. On a report, police registered an accidental death and commenced investigation. After inquest and post-mortem, it was found that Kaveri had died due to drowning with some ante mortem injuries on her person. After an offence was registered, police recorded statements of witnesses, seized incriminating articles and on completion of investigation, sent charge-sheet to the learned Judicial Magistrate First Class, Chikhli, who committed the case to the Court of Sessions at Buldhana. 4. The learned Additional Sessions Judge, to whom the case was assigned, framed charge of offence punishable under Section 302 of the Penal Code or in the alternative, under Sections 304-B, 498-A and 201 read with Section 34 of Penal Code against all the eight accused sent up for trial. Subsequently, the charge was modified by adding charge of Section 306 read with Section 34 of Penal Code. Roznama of the proceedings dated 7-4-1994 shows that charge of Section 302 read with Section 34 of Penal Code was deleted by the learned Additional Sessions Judge. 5. In its attempt to bring home the guilt of the accused, the prosecution examined in all ten witnesses. Roznama of the proceedings dated 7-4-1994 shows that charge of Section 302 read with Section 34 of Penal Code was deleted by the learned Additional Sessions Judge. 5. In its attempt to bring home the guilt of the accused, the prosecution examined in all ten witnesses. Upon consideration of the prosecution evidence in the light of defence raised, the learned Additional Sessions Judge came to convict and sentence original accused No.1 to 4 of offences punishable under Sections 498-A and 306 read with Section 34 of Penal Code, as stated above. He, however, acquitted accused No.5 to 8 of the offences charged. He also acquitted accused no.1 to 4 of offences punishable under Section 304-B read with Section 34 of Penal Code. As already observed, aggrieved thereby, the convicts as well as the State have preferred these two appeals. 6. We have heard both the learned Additional Public Prosecutor for the State as well as the learned counsel for the convicts, in support of their respective appeals and also to oppose appeals of the adversaries. We have also gone through the grounds raised in the memoranda of appeals. 7. The learned counsel for the convicts submitted that an unfortunate mishap of a newly married girl falling in a well was sought to be blown out, to rope in all in-laws with as grave charges as possible. He submitted that eight persons from the family of convicts were initially made to stand trial before the Court for offence of murder and dowry death, which was later modified to abetment to commit suicide and cruelty to a married woman. He wanted the entire evidence to be scrutinized in the context of the conduct on the part of the victim's family~ When a young girl dies within a very short time from her marriage, the reaction of her parents and other relations can be exaggerative. This is not abnormal. Therefore, without allowing ourselves to be affected by the contentions of the learned counsel for the appellants/original accused, we have analyzed and re-appreciated the entire evidence on record with the help of both the counsel. 8. In this case, obviously, there was no eye-witness. Dead body of victim was noticed in the well. It was taken out and after performing inquest, sent for post-mortem examination. PW 1 Dr. 8. In this case, obviously, there was no eye-witness. Dead body of victim was noticed in the well. It was taken out and after performing inquest, sent for post-mortem examination. PW 1 Dr. Khasbage conducted post-mortem examination and found among other things that there were some minor injuries on the victim's genitals, lip and forehead. The police had sought to know whether the victim could have become unconscious on account of injuries on her person. The doctor had certified that his was not possible. Though the contused lacerated wound, 1h cm. x 1h cm. x 1h cm. on right labia majora with bleeding present is enigmatic, it does not necessarily point to any ill-treatment or torture, given the size and location of the injury. Dr. Khasbage had stated that due to menstruation, blood stains may occur on the clothes of the victim. He had also opined in cross-examination that injury to forehead is possible due to fall on hard and rough surface. Therefore, this injury could have been caused even by coming in contact with the hard surface while falling in the well. 9. PWs 4 Vitthal and 8 Narayan stated that the victim knew swimming. They, therefore, wanted to rule out the possibility of the victim having died of drowning. Just as a person, who could swim, would not drown if he fell accidentally in a well, he would not drown even if he is deliberately thrown in the well. Since it is not shown that the victim was tied up when she was thrown in the well, there is no question of her being made to drown. The finding of Medical Officer conducting postmortem examination that the victim had died of drowning, would be inconsistent with the story of PWs 4 and 8 that the victim knew swimming. 10. It is the contention of the learned counsel for the convicts that there is absolutely no evidence to indicate that the victim was subjected to any ill-treatment on account of demand of dowry. PW 4 Vitthal- victim's uncle - stated about the demand of Rs.25,000/- or motor cycle, conveyed by the victim to them. He stated that the victim used to tell them that the in-laws ill-treated her and she was beaten up and not given food in order to coerce her relations to comply with the demand. PW 4 Vitthal- victim's uncle - stated about the demand of Rs.25,000/- or motor cycle, conveyed by the victim to them. He stated that the victim used to tell them that the in-laws ill-treated her and she was beaten up and not given food in order to coerce her relations to comply with the demand. Vitthal states that he had told the in-laws that the demand of Rs.25,000/- or motor cycle would be met at Dipawali. Thereafter the victim was taken to her matrimonial home. If that he so, there seemed to be no dispute remaining between the parties, even if it is presumed for a while that the demand was made. In that case, there would be really no reason to ill-treat or torture the victim in order to provoke her to commit suicide. 11. PW 8 Narayan speaks only about the demand of Rs.25,000/- and not about motor cycle. However, he too stated that his granddaughter reported ill-treatment to him. He, however, gave a very strange story. He stated in cross-examination that before her death, she insisted on being taken to Pandharpur for the last darshan of Lord Vithoba, telling her grandfather that her husband and relatives would not allow her to live. It is indeed strange that after the victim had told such a thing to her grandfather, her grandfather should have sent her back to matrimonial home after return of Pandharpur. PW 8 Narayan had, however, admitted that he did not make any such statement before police. 12. Apart from this exaggerative tendency, which is detrimental to the credibility of these witnesses, it is worthy of note that both these witnesses had made two statements each before the police. The first was recorded on 29-8-1990 and the second one was three months thereafter, i.e. 28-11-1990. They curiously state that because the first Investigating Officer PI Patil was not conducting investigation properly, on compliant, the investigation was entrusted to one PSI Sheikh Rafiq, who recorded their subsequent statements. Thus, they imply that PI Patil had not recorded their statements properly. 13. PI Patil was examined as PW 9. He stated that on 27-11-1990, since he was proceeding on 15 days' leave, he handed over the charge of investigation to PSI Sheikh Rafiq and on resumption of duty on 7 -12-1990, he took over the investigation also from PSI Sheikh Rafiq. 13. PI Patil was examined as PW 9. He stated that on 27-11-1990, since he was proceeding on 15 days' leave, he handed over the charge of investigation to PSI Sheikh Rafiq and on resumption of duty on 7 -12-1990, he took over the investigation also from PSI Sheikh Rafiq. PSI Sheikh Rafiq, who was examined as PW 10, stated that he had taken charge of the investigation after the PSO had gone on leave. He, however, claimed that the Superintendent of Police had orally directed him to investigate into the matter, since there were complaints against PI Patil. He admitted that after return of PI Patil from leave, he handed over the charge of Police Station as well as the charge of investigation of the case to PI Patil. Therefore, improvements, if any, made in the statements recorded on 28-11-1990 could be said to be an afterthought. 14. The evidence of other witnesses examined is of a formal nature. PW 2 Sheikh Sardar is a panch on inquest and spot panchanama. In cross-examination, he admitted that the victim was related to Advocate Bahekar and also stated that Advocate Bahekar's wife used to visit a shrine in the Village frequently and the victim used to accompany Smt. Bahekar during her visits. Thus, 1he victim had enough opportunity of disclosing ill-treatment, if any to Advocate Bahekar's wife, who was not examined as a witness. 15. In presence of PW 5 Tukaram Chandrabhan Bajad and PW 7 Baliram Bhavsan Bajad, a letter was seized by the Police. This letter, the contents whereof are re-produced in Exhibit 56, appears to be at the root of entire prosecution case. It recites that sound of crying was heard from the house of the accused on the night of 27-3-1990, which later subsided. On the next day, the victim was found dead. It was alleged that PSI Dukare was influencing the investigation and so was the local MLA. It was alleged that Kaveri was first killed and then thrown in the well, which is inconsistent with the post-mortem notes. 16. PW 6 Sudhakar Yashwantrao Awachar is a Police Constable who carried samples to Forensic Science Laboratory and as already observed, PWs 9 PI Patil and 10 Sheikh Rafique conducted the investigation in part. 17. It was alleged that Kaveri was first killed and then thrown in the well, which is inconsistent with the post-mortem notes. 16. PW 6 Sudhakar Yashwantrao Awachar is a Police Constable who carried samples to Forensic Science Laboratory and as already observed, PWs 9 PI Patil and 10 Sheikh Rafique conducted the investigation in part. 17. Upon re-appraisal of the entire evidence, we find that the account given by PWs 4 Vitthal Bajad and No.8 Narayan Bajad about any ill-treatment on account of demand of money or motorcycle, does not inspire confidence. It seems to be a story imagined after the event. In any case, even according to them, when amount or the motorcycle was promised to be delivered at Dipawali, there should have been no occasion for any ill-treatment. It seems that in six month's period after marriage, the victim visited to her parental home at least once or twice and her relations too were visiting her once in a while. The story about the victim's desire to have last darshan of Lord Vithoba at Pandharpur, is totally inconsistent, with sending the victim to matrimonial home after after return from Pandharpur. We, therefore, feel that the learned Trial Judge should not have relied upon the testimonies of PWs.4 Vitthal and 8 Narayan in order to conclude that the victim was subjected to any cruelty or was provoked to commit suicide by the convicts. 18. In the above view of the matter, we allow Criminal Appeal No.215 of 1994, set aside the conviction of the appellants for offences punishable under Sections 498-A and 306, both read with Section 34 of the Penal Code and resultant sentences imposed upon them and acquit the appellants of those offences. Consequently, we find no merit in the appeal of the State bearing No.314 of 1994 for enhancement of the sentence, which, therefore, fails and is dismissed.