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2012 DIGILAW 2362 (BOM)

Sampat Narayan Hake v. State of Maharashtra

2012-12-17

ABHAY M.THIPSAY

body2012
JUDGMENT : The appellants were prosecuted on the allegation of having committed offences punishable under section 498A IPC, 306 IPC, 304 IPC, 201 IPC and section 176 of the IPC read with section 34 of the IPC. The learned Sessions Judge, Baramati who tried them, held the appellant no. 1 guilty of all the aforesaid offences and sentenced him as follows:- For Offence punishable u/s. 306 IPC RI for five years and fine of Rs.l,000/- in default to suffer RI for three months. For Offence punishable u/s. 498A IPC RI for three years and fine of Rs. 500/- in default to suffer RI for three months. For Offence punishable u/s. 201 IPC RI for one year and fine of Rs. 500/- in default to suffer RI for three months. 2. The learned Sessions Judge acquitted the appellant no. 1 of the offence punishable under section 304B of the IPC. 3. The learned Addl. Sessions Judge also held the other appellants guilty of offences punishable under section 201 IPC read with section 34 of the IPC, section 176 of the IPC read with section 34 of the IPC, and sentenced them to suffer Imprisonment till rising of the Court, and to pay a fine of Rs.250/- each, on each of the said counts, with default sentences of Imprisonment for one month. The learned Addl. Sessions Judge acquitted the appellant nos.2, 3, 4 and 5 of all the other offences i.e. 304B IPC, 306 IPC, 498A IPC read section 34 of the IPC. 4. Being aggrieved by the judgment arid conviction recorded by the learned Addl. Sessions Judge and the sentences imposed upon them, the appellants have approached this Court by filing the present appeal. 5. I have heard Mr. Rahul Kate, the learned counsel for the appellants. I have heard Mrs. M.R. Tidke, learned APP for the State. With the assistance of the learned counsel, I have examined the evidence adduced during the trial. I have carefully gone through the impugned judgment and order. 6. The case of the prosecution, as put forth before the Trial Court, was in brief, as follows:- 7. Ankita, daughter of the First Informant Gulab Mahadeo More married the appellant no. 1 Sampat on 10 May 2009. The appellant no.2 is the father, and the appellant no.3 the mother of the appellant no.1. 6. The case of the prosecution, as put forth before the Trial Court, was in brief, as follows:- 7. Ankita, daughter of the First Informant Gulab Mahadeo More married the appellant no. 1 Sampat on 10 May 2009. The appellant no.2 is the father, and the appellant no.3 the mother of the appellant no.1. The appellant nos.4 and 5 are the maternal aunt and maternal uncle, respectively, of the appellant no.1. After marriage, Ankita started residing in her matrimonial house at Village Palshi. The appellant nos.4 and 5 were residing at Chikhali, More vasti. That, the appellant no.1 is a vegetable vendor by profession, and had business ties with the appellant nos.4 and 5. That the appellant no. 1 demanded an amount of Rs.2,00,000/- ( Rupees Two lakhs) for purchasing gala/shop for residence from Ankita's father i.e. the First Informant- Gulab More. As this amount was not given, the appellant no. 1 used to assault and illtreat Ankita. Ankita had come to her parents house on the occasion of Diwali and other festivals, and at that time, she had told the members of her parental family about the demand of money by the appellant no.1 and the illtreatment and harassment caused to her by him. The members of the parental family of Ankita had admonished the appellant no.1 and had sent Ankita back to reside with him in the hope that Ankita would be treated properly. That, on 17 November 2009, a telephone call was received by Gulab More and the members of his family. It was from the appellants who asked as to whether Ankita had been to her parents house. Gulab answered in negative. On the same day, at about 4.00 to 5.00 pm, again Gulab and his family received a telephone call informing that chappals of Ankita were lying near a well. Gulab and the members of his family were asked to come to village Palshi. Gulab and others went there, and noticed the spot. The well was full of water. Many persons had gathered there. The dead body of Ankita was taken out from the well and taken to the matrimonial house. Funeral rites on the dead body were performed. Gulab and the members of his family were asked to come to village Palshi. Gulab and others went there, and noticed the spot. The well was full of water. Many persons had gathered there. The dead body of Ankita was taken out from the well and taken to the matrimonial house. Funeral rites on the dead body were performed. On 20 November 2009, Gulab lodged a report with the police which was treated as the First Information Report in respect of the said offences, pursuant to which the matter was investigated into, and resulted in the prosecution and conviction of the appellants as aforesaid. 8. The prosecution examined only two witnesses, Gulab More - the First Informant (PW 1) and the Investigating officer Vijay Tukaram Patil (PW 2) during the trial. The appellants examined one Balasaheb Pore-Police Patil of village Palshi as a defence witness. 9. After having gone through the entire evidence, and the impugned judgment, I am of the opinion that this was not a case where there was sufficient and/or satisfactory evidence to hold the appellants guilty of any of the alleged offences. 10. The case of the prosecution rests solely on the testimony of Gulab More. Undoubtedly, in his evidence, Gulab has made allegations against the appellants of their having demanded an amount of Rs.2,00,000/-, and of their having harassed and ill-treated Ankita on account of non-fulfillment of such demands. However, considering that such allegations have leveled for the first time only after the death of Ankita, the evidence in that regard needs to be subjected to a thorough scrutiny. This is particularly so because there is no corroboration to the evidence of Gulab from any source not even from the other relatives of Ankita. 11. Before proceeding further, some undisputed facts which are relevant may be noted. It is revealed in the cross-examination of Gulab that the appellants and Gulab are related to each other. The appellant no.3 and the appellant no.4 are the daughter and son respectively of the sister of Gulab's mother. It also transpires that the sister of Ankita is given in marriage in the same village, and that the husband of Namrata is serving in armed forces. Apart from this, there are other persons who are close to both the families, but none of them have been examined as a witness. 12. It also transpires that the sister of Ankita is given in marriage in the same village, and that the husband of Namrata is serving in armed forces. Apart from this, there are other persons who are close to both the families, but none of them have been examined as a witness. 12. Gulab was admittedly present at the time when funeral rites were performed on the dead body of Ankita. It may be recalled that the body of Ankita was taken to her matrimonial house, and from there, it was taken to the place where the funeral took place. These facts indicate that, at that time, no objection was raised by Gulab, or any member of the parental family of Ankita, allowing Ankita's last rites to be performed by her husband and in-laws; which in turn indicates that no suspicion was felt by Gulab or other members of the parental family of Ankita, that Ankita was either killed by the appellants, or that she had committed suicide because of the cruel treatment given to her by the appellant no.1 and/or other appellants. 13. That no suspicion was felt at that time, is also clear from the fact that the First Information Report came to be lodged after three days from the incident. The delay in lodging the First Information report has not at all been explained. 14. The evidence of Vijay Patil the Investigating officer shows that the statements of a number of persons were recorded during the course of investigation, but as aforesaid, only one witness Gulab More came to be examined during the trial. The Investigating Officer also admitted that, so far as the First Information Report was concerned, the allegations were only against the husband of Ankita i.e. the appellant no.1. The Investigating Officer also admitted that the investigation revealed that the parents of Ankita and other relatives were present at the time of performing last rites on the dead body of Ankita. The evidence of the Investigating Officer also shows that in the course of investigation, he learnt that father of Ankita i.e. Gulab had refused to lodge any report to the police at that time. 15. The evidence of Balalsaheb Pore - Police Patil who, it may be recalled, was examined as a defence witness - shows that on 17 November 2009, he learnt that Ankita had died due to falling in well. 15. The evidence of Balalsaheb Pore - Police Patil who, it may be recalled, was examined as a defence witness - shows that on 17 November 2009, he learnt that Ankita had died due to falling in well. His evidence shows that he made inquiries with the parents of Ankita, and that they had told him that they did not want to report the matter to the police. According to this witness, the parents of Ankita had told him that the appellants were their relatives, and that they did not want to report the matter to the police, and that they also told this witness to avoid the postmortem examination of the dead body of Ankita. 16. The testimony of Gulab does not inspire confidence for a number of reasons. He has made an allegation of the appellant no.1 having illicit relations with some other woman and has put forth the same as a cause behind the alleged cruel treatment given to Ankita by the appellant no.1, and even the other appellants. However, no name of any such woman or any other details of her, have been mentioned by him in his evidence. Moreover, though the Investigating Officer opined the case to be of an offence punishable under section 306 of the IPC, Gulab had alleged that Ankita had been killed by the appellants, and that her body was thrown in the well thereafter. It is clear that this is only an inference drawn by Gulab, and the inference has been put forth as a 'fact' by him. There is no basis for claiming it to be a case of homicide. 17. The very fact of the First, Information Report having been lodged after three days from the incident, creates a doubt about the truth of the prosecution version. It is well recognized that delay in reporting the matter to the police gives scope to various embellishments and manipulations rendering the truth of the version reflected in such report, doubtful. 17. The very fact of the First, Information Report having been lodged after three days from the incident, creates a doubt about the truth of the prosecution version. It is well recognized that delay in reporting the matter to the police gives scope to various embellishments and manipulations rendering the truth of the version reflected in such report, doubtful. In the instant case, it is particularly so because Gulab More was already aware - if his version is to be believed - that Ankita was being treated with cruelty by the appellants; and when, in spite of this knowledge, he remains present for the funeral, and does not object to the appellants performing the last rites, and still does not report the matter to the police, it clearly indicates that the allegations levelled against the appellants are an afterthought. 18. It may be observed that in case of offences punishable under section 498A IPC and 306 IPC, the allegations are generally levelled against the husband and in-laws of the deceased for the first time after the death of the victim. It is true that the parents of a girl would try to see that their daughter lives happily with her husband and in-laws and, therefore, would not report the matter to the police immediately even if the incidents of cruelty and illtreatment are reported to them earlier; and that, therefore, their evidence cannot be discarded only on the ground that such allegations have been levelled for the first time, after the death of the victim. At the same time, it also ought not to be forgotten, that such allegations can easily be made after the victim is dead. It ought to be remembered that the 'grief reaction' of the victim's parents can lead them to think that something must have been done by the husband and/or the 'in-laws' of their daughter due to which their daughter died. They may suspect that she has been murdered, or that she has committed suicide, and in that case they would think that the suicide must have been committed due to the cruel treatment given to her by her husband and in-laws. Such inferences are often put forth as positive statements of facts. However, while evaluating the evidence, the Court needs to distinguish the mere inferences drawn by witness and the facts stated by witness. 19. Such inferences are often put forth as positive statements of facts. However, while evaluating the evidence, the Court needs to distinguish the mere inferences drawn by witness and the facts stated by witness. 19. In such cases, often the fact of suicide is put forth as a piece of evidence supporting the allegation of cruelty; and the allegation of cruelty is put forth to support the theory that the unnatural death was suicidal (and not accidental). However, when neither the cruelty is satisfactorily proved, nor suicide is satisfactorily proved, they cannot lend assurance to each other. In the instant case, that the death of Ankita was suicidal, is itself not satisfactorily established. It could very well be accidental. In fact, from the facts disclosed by the Investigating Officer and the defence witness, it is clear that at the material time, the death was thought to be accidental. The vague allegations of cruelty and illtreatment cannot lend support to the theory that Ankita indeed committed suicide. 20. The conviction of the appellants as recorded by the learned Addl. Sessions Judge is not proper or legal. This was a case where there existed a doubt about the truth of the prosecution case. The appellants were, therefore, entitled to be acquitted. 21. Before parting, one more error committed by the Addl. Sessions Judge be mentioned here. It is of taking cognizance of the offence punishable under section 176 of the IPC. The cognizance of the offence punishable under section 176 of the IPC could not have been taken in the absence of a complaint in writing made by the public servant concerned, in view of the specific bar created by subsection (1) of section 195 of the Code of Criminal Procedure. 22. The Appeal succeeds. 23. The Appeal is allowed. The impugned judgment and order of conviction of the appellants is set aside. 24. The appellants are acquitted. 25. The appellant no.1 be set at liberty forthwith, unless required to be detained in connection with some other case. 26. Fine if paid, be refunded to the appellants respectively. 27. The Appeal is disposed of in the aforesaid terms. Appeal allowed.