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2014 DIGILAW 1750 (BOM)

State of Maharashtra v. Kiran Sonu Ahire

2014-08-06

A.S.GADKARI, V.K.TAHILRAMANI

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JUDGMENT A.S. GADKARI, J. 1. The aforesaid Criminal Appeal No.659 of 1992 has been filed by the State of Maharashtra against the acquittal of the respondent Mr. Kiran Ahire i.e. the original accused in Sessions Case No.163 of 1991 under Section 307 and 506 of the Indian Penal Code by the impugn judgment and order dated 28.4.1992 passed by the Assistant Sessions Judge, Nashik in Sessions Case No.163 of 1991. The Respondent herein will be termed as “accused” hereinafter for the sake of brevity. The accused Kiran Ahire has preferred the Criminal Appeal No.382 of 1996 against his conviction under Section 498A and 506of the Indian Penal Code thereby sentencing him to suffer rigorous imprisonment of one year and to pay fine of Rs.1000/, in default of which to suffer simple imprisonment for 3 months by the impugned judgment and order dated 28.4.1992. It is to be noted here that, as the appeal preferred against acquittal of accused was admitted by this Court, the appeal preferred by the accused was thereafter transferred to this Court for hearing the same along with appeal preferred by the State. Criminal Revision Application No.164 of 1992 has been preferred by the original complainant Smt. Saroj Kiran Ahire, the wife of the accused Mr. Kiran Ahire, against the inadequacy of the sentence for the offence under Section 498A and against the acquittal of the accused from Section 307 and 506 of the Indian Penal Code. 2. The original accused Kiran was tried for offences under Sections 506, 307 and 498A of the Indian Penal Code by the learned Assistant Sessions Judge, Nashik in Sessions Case No.163 of 1991 and by the impugned judgment and order dated 28.4.1992, the learned Trial Court convicted the accused under Section 498A of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year and to pay fine of Rs.1000/, in default of which to suffer simple imprisonment for 3 months. As far as the charge under Section 506 of the Indian Penal Code is concerned, the learned Trial Court came to the conclusion that, it is found to be a part of the offence under Section 498A of the Indian Penal Code with respect to the original complainant Smt. Saroj and hence no separate sentence was awarded for the same. As far as the charge under Section 506 of the Indian Penal Code is concerned, the learned Trial Court came to the conclusion that, it is found to be a part of the offence under Section 498A of the Indian Penal Code with respect to the original complainant Smt. Saroj and hence no separate sentence was awarded for the same. The learned Trial Court was pleased to acquit the accused under Section 506 read with Section 307 of the Indian Penal Code. The aforesaid three matters arise out of the same judgment and order dated 28.4.1992 which is impugned herein and are decided by this common judgment. 3. The facts which can be enumerated from the record, may briefly be stated thus: (i) As per prosecution case, PW2 Smt. Saroj was daughter of PW13 Eknath Pawar. PW2 Saroj was married with accused Kiran on 16.2.1982. That PW13 Eknath Pawar was working as the Deputy Collector at Mumbai and was residing at Bandra. The accused was doing his postgraduation in surgery while PW2 Saroj had studied up to 12 standard at the time of her marriage. The accused could not succeed in his examination and therefore he had to stay with the parents of PW2 Saroj at Mumbai for some time. Even after passing of his examination, the accused had to reside at the residence of the parents of Smt. Saroj at Mumbai. During the said period, the accused Kiran started a feeling that his inlaws are not paying proper attention towards him and on that count he used to quarrel with PW2 Saroj. The accused was expecting that the father of Saroj i.e. PW13 should arrange for the funds for construction of a hospital where accused can set up his practice. PW13 Eknath Pawar used his own office and secured a job for the accused in E.S.I.S. Hospital at Worli. Eknath Pawar PW13 also arranged for a clinic at Linking Road, Mumbai for setting up a dispensary for the accused. However, accused was not satisfied with the said arrangement. The accused was expecting a wellfurnished and independent hospital to be constructed by the parents of Smt. Saroj and on this count there used to be quarrel between PW2 Saroj and the accused. In August 1984, PW2 Saroj gave birth to a son namely Swapnil (PW3). However, accused was not satisfied with the said arrangement. The accused was expecting a wellfurnished and independent hospital to be constructed by the parents of Smt. Saroj and on this count there used to be quarrel between PW2 Saroj and the accused. In August 1984, PW2 Saroj gave birth to a son namely Swapnil (PW3). Subsequently the accused was transferred to a hospital at Andheri where he was provided with Government quarters for his residence. (ii) It is further the prosecution case that even at the Government quarters at Andheri, the accused continued with his demand for having an independent hospital and on that count he used to beat PW2 Saroj mercilessly. On one occasion when the accused was beating PW2 Saroj, PW6 Bharati Deshpande intervened in the said incident and the matter was reported to MIDC Police Station. However, it appears that due to mediation of the police, the matter was amicably settled between the husband and wife, and PW2 again went for residing with accused. (iii) The record further discloses that in the year 1986, the accused had passed Public Service Commission examination and thereafter was transferred to Public Health Center at Jawhar, District Thane. PW2 Saroj was continuously residing with the accused, but it appears that after some intervals, there used to be incident of beating at the hands of the accused to PW2 Saroj. According to PW2 Saroj, the said beating was arising out of the demand of money by the accused. Accused used to pressurise PW2 Saroj for bringing money from her parents for construction of the hospital. In the month of September 1987, again an incident reported by PW2 Saroj about merciless beating at the hands of the accused. Smt. Saroj informed PW13 Eaknath Pawar her father about the same. PW13 Eknath Pawar visited Jawahar along with PW14 Gangadhar Bagul. With the interference of the police and the Municipal Council Chairman Shri Tendulkar, the matter was amicably settled. However, it appears that Smt. Saroj did not had peaceful life and she used to write letters to her father. She used to disclose about arrogant, indecent and violent behaviour of accused. (iv) As per record on 26.1.1988, the accused bet Saroj on the ground that her father was not providing funds for constructing the hospital. However, it appears that Smt. Saroj did not had peaceful life and she used to write letters to her father. She used to disclose about arrogant, indecent and violent behaviour of accused. (iv) As per record on 26.1.1988, the accused bet Saroj on the ground that her father was not providing funds for constructing the hospital. At this time Saroj could not sustain the pressure and she approached the police and gave her application to A.S.I. Shri Jadhav. PW2 Saroj has stated that accused had tried to throttle her and she felt that she would be killed by accused. It further appears that due to intervention of the police, the matter was settled between the husband and wife and PW2 Saroj again started cohabiting with accused. (v) In the year 198889, the accused was transferred to Vani. The accused wanted to settle his practice at Nasik, so also PW2 Saroj i.e. the complainant wanted to establish her business of beautyparlor at the said place. The respondent accused approached PW13 Eknath Pawar, the father of the complainant and demanded a sum of Rs.2 lacs. PW13 after receipt of the letter from the respondent accused, paid a sum of Rs.10,000/. However, the respondent accused was not satisfied with the same. The respondent accused used to curse PW2 Saroj and used to beat her. (vi) The incident in question for which the offence under Sections 307 and 506 of the Indian Penal Code has been charged, took place on 18.11.1990. On that day, PW2 Saroj after returning from her aunt in the evening asked the respondent accused whether he had gone to see any plot for their house to which the respondent accused got offended and he confined Saroj in a room and bet her with kick and fists blows. When Swapnil their son tried to intervene in the matter, the respondent accused did not allow him to enter into the room. There was constant quarrel between the respondent accused and Saroj. Due to severe beating, the complainant Saroj was yelling and weeping up to 1.30 a.m. and woke up at 4.00 a.m., because of pain and again started yelling and crying. After hearing the cries of the complainant Saroj, the respondent accused went to her and had exchange of words. There was constant quarrel between the respondent accused and Saroj. Due to severe beating, the complainant Saroj was yelling and weeping up to 1.30 a.m. and woke up at 4.00 a.m., because of pain and again started yelling and crying. After hearing the cries of the complainant Saroj, the respondent accused went to her and had exchange of words. As the complainant had got fed up with the apathetic treatment meted out to her at the hands of the respondent accused, she told him that it is better to die than to suffer such beating at the hands of the accused. On the said statement, the respondent accused dragged the complainant Saroj to the side of the toilet and took Begon insecticide and hold the jaw of Saroj and poured Begon insecticide in her mouth. The complainant did not had energy to resist the respondent accused, somehow, she spit out the said chemical out from her mouth. However, she had to consume some portion of the said insecticide. The respondent accused thereafter threw the complainant Saroj on a bed. After sometime the complainant Saroj started feeling nauseatic and therefore the respondent accused forcibly took the complainant to the hospital of Dr.Thakkar in the morning hours and from there she was taken to Nagji Memorial Hospital. As the complainant Saroj was reluctant to take any treatment in the private hospital, the respondent accused took Saroj to Nasik Civil Hospital where she was treated. In the evening of 20.11.1990, Saroj gain consciousness. The respondent accused had informed PW13 Eknath Pawar, the father of the complainant who also arrived at the hospital. Dr. D.N. Pawar (PW8) examined the complainant Saroj and gave her treatment. On 20.11.1990, the police recorded the complaint of PW2 Saroj and registered an offence against the respondent accused under Section 498A, 506 and 307 of the Indian Penal Code. PW8 Dr D.N. Pawar after extracting the gastric lavage from the stomach of the complainant Saroj, referred the same to the Chemical Analyzer wherein it was detected that the same was containing Carbemate insecticide (Begon). (vii) After completion of the investigation, PW16 Police Inspector Shri Anup Sankhe submitted chargesheet in the Court of Judicial Magistrate First ClassIII, Nashik. The Judicial Magistrate First Class subsequently committed the said case to the Court of Sessions and the same was placed for hearing before the Assistant Sessions Judge, Nashik. (vii) After completion of the investigation, PW16 Police Inspector Shri Anup Sankhe submitted chargesheet in the Court of Judicial Magistrate First ClassIII, Nashik. The Judicial Magistrate First Class subsequently committed the said case to the Court of Sessions and the same was placed for hearing before the Assistant Sessions Judge, Nashik. The learned Trial Court framed charge below Exhibit 5, to which the respondent accused pleaded not guilty. The defence of the respondent accused was of total denial. It was further defence of the respondent accused that PW2 Saroj being a daughter of a Revenue Officer was not interested to stay with him who belong to poor family and the evidence against him has been concocted at the behest of PW13 Eknath Pawar who used his financial influence on the Police machinery and the medical officers. The learned Trial Court after recording the evidence and after hearing the parties to the Sessions Case was pleased to convict the accused under Section 498A. However, was pleased to acquit him for offence under Sections 307 and 506 as stated herein above. 4. We have heard Mrs. A.S. Pai, the learned A.P.P. for the State and Mr. H.E. Palwe, the learned Counsel for the original accused. We have also heard at length Mr. Kalpesh Patil, the learned Counsel for the original complainant. 5. PW2 Saroj in her detailed examination-in-chief has given various instances of demand of money at the hands of the accused and also about the beating and other instances of cruelty which were caused at the hands of the accused to her. She has also stated that some of the demands of accused were fulfilled by her father PW13. She has also narrated about the incident dated 18.11.1990 wherein the accused forcibly put insecticide Begon in her mouth and the beating to her prior to the said incident. In the cross-examination of the complainant Saroj truthfulness about the cruelty meted out to her by the accused was not shaken at all. The complainant Saroj affirmatively answered all the questions put to her pertaining to the cruelty and demand of money at the hands of the accused. 6. The version of PW2 Saroj was corroborated by PW3 Swapnil i.e. son of PW2 Saroj and the accused, aged about 6 years at the time of his deposition. The complainant Saroj affirmatively answered all the questions put to her pertaining to the cruelty and demand of money at the hands of the accused. 6. The version of PW2 Saroj was corroborated by PW3 Swapnil i.e. son of PW2 Saroj and the accused, aged about 6 years at the time of his deposition. The version of PW2 Saroj pertaining to cruelty and demand by the accused has been further corroborated by PW6 Bharati Deshpande who was the neighbour of the complainant Saroj at Mumbai and PW10 Bhagwan relative of PW13 Eknath Pawar. PW12 Gulabrao, a family friend of PW13 and Eknath Pawar PW13, the father of the complainant Saroj. The father of the complainant Saroj in his testimony has stated in detail about the cruelty meted out by the accused to the complainant Saroj, demand made by accused and the fulfillment of many of the demands by PW13. In his testimony, PW13 has in detail narrated about the various demand and its fulfillment at his instance. In the cross-examination of this witness, nothing fruitful has been elicited which would either discredit his testimony or which would snap the corroborative link between the evidence of PW2 Saroj and PW13 Eknath Pawar. 7. After taking into consideration the evidence of the aforesaid witnesses, we are of the considered opinion that the offence under Section 498A of the Indian Penal Code has been proved by the prosecution beyond reasonable doubt against the accused. The conviction and sentence awarded by the Trial Court to the accused on this count i.e. under Section 498A of the Indian Penal Code is just, right and proper. 8. As far as the charge under Section 307 and 506 of the Indian Penal Code is concerned, PW2 Saroj in her evidence has stated that on 18.11.1990 the accused bet her on account of their quarrel and due to the said beating, her body was paining. She was yelling and crying and was unable to speak. She was awaken at about 4 a.m. She was sleeping inside the room along with her son and the accused was sleeping on a diwan in the outer room. On hearing her cries and weeping, the accused came to her and inquired that had somebody died for which she was weeping. The complainant Saroj replied that it would have been better if she herself would have died. On hearing her cries and weeping, the accused came to her and inquired that had somebody died for which she was weeping. The complainant Saroj replied that it would have been better if she herself would have died. Thereafter, the accused caught hold her, dragged her into the toilet and after holding her jaw, poured Begon insecticide in her mouth. The complainant spit it out, but during the said process she gulped down some portion of the liquid. The accused then again caught hold of her and forcibly poured another lid full of Begon in her mouth and shut her mouth to which she had to gulp it down. Thereafter the accused brought her out and threw her on the bed. The complainant Saroj started feeling nauseatic. At that time, the accused woke up his maid servant Dwarka by saying that the complainant Saroj had consumed something herself. Thereafter the accused directed the complainant Saroj to change her clothes and forcibly put her in an autorickshaw and took her to the hospital of Dr. Thakkar. The complainant Saroj was thereafter shifted to Nagji Hospital on the advice of Dr. Thakkar. As the complainant was not ready to take treatment in the private hospital, she was thereafter taken to the Civil Hospital. The complainant Saroj felt unconscious. She gain consciousness on 20.11.1990 and thereafter the police recorded her statement. It appears to us from the testimony of PW2 Saroj that till the time she was taken to Nagji Hospital or rather to the Civil Hospital at Nashik, she was conscious and well oriented. 9. PW8 Dr. D.N. Pawar who was then attached to Nashik Civil Hospital had examined PW2 Saroj on 19.11.1990 at about 8 a.m. and found the following injuries on her person: 1. Contusion on left sided buttock around 3 x 3.6 cm with redness. 2. Abrasion on left side eyebrow lateral aspect of size 2 x 2 cms with bleeding. 3. Contusion on left side dorsal aspect of forearm 3 x 3 cm with redness. All injuries were within 24 hours caused due to hard and blunt object. 10. PW8 Dr. Pawar in his testimony has stated that as per his memory the husband of complainant brought her and thereafter he gave treatment to her. He gave the stomach wash to the complainant Saroj. The stomach wash (gastric lavage) was preserved. All injuries were within 24 hours caused due to hard and blunt object. 10. PW8 Dr. Pawar in his testimony has stated that as per his memory the husband of complainant brought her and thereafter he gave treatment to her. He gave the stomach wash to the complainant Saroj. The stomach wash (gastric lavage) was preserved. He thereafter sent those bottles under requisition to the Chemical Analyzer and in due course of time, the Chemical Analyzer gave his report which is at Exhibit 36, stating that the gastric lavage was containing carbemate insecticide. In the cross-examination, this witness has admitted that the Chemical Analyzer had referred back the sample of gastric lavage since PW8 had not used proper form and proper sealing procedure was not followed. The specimen bottles were again referred to the Chemical Analyzer after using proper form. He has further admitted that he had not sealed the said bottles himself, but they were sealed by wardboy or by the clerk. He has further admitted that when the bottles were referred back from the Chemical Analyzer, he had not changed the sealing of the bottle. 11. Thus it is clear from the cross-examination of this witness that the samples which were sent to the Chemical Analyzer were not sealed at the first instance and therefore the possibility of tampering of the same cannot be ruled out during the said process. The learned Counsel for the accused has relied on a judgment of this Court in the case of Balasaheb Sukhdev Navlikar (Kamble) Vs. State of Maharashtra, reported in 2014 (1) ABR (Cri) 595, wherein it has been held that in the absence of requisite sealing, no reliance can be placed on the report of the Chemical Analyzer. As we have noted herein above, PW8 has admitted in his cross-examination that the samples which were sent to the Chemical Analyzer were not sealed which gives room to the possibility of tampering with the said samples and hence we refrain ourselves from placing reliance on the report of the Chemical Analyzer. The version of PW2 Saroj is therefore not supported by cogent legal medical evidence to substantiate the administration of Begon. After excluding the report of Chemical Analyzer from consideration, what remains are the injuries mentioned herein above which were received by the complainant Saroj. The version of PW2 Saroj is therefore not supported by cogent legal medical evidence to substantiate the administration of Begon. After excluding the report of Chemical Analyzer from consideration, what remains are the injuries mentioned herein above which were received by the complainant Saroj. Taking into consideration the nature of injuries which were received by Saroj, it is clear that the said injuries were not of serious nature, because of which the life of the complainant Saroj was put in danger. We therefore of the considered opinion that the offence under Section 307 read with Section 506 of the Indian Penal Code has not been proved at all by the prosecution beyond reasonable doubt. 12. The criminal intimidation which has been caused by the accused to the complainant Saroj was caused during the course of committing offence under Section 498A of the Indian Penal Code and therefore separate sentence for the same is not required. 13. After scrutinizing the entire evidence on record and the judgment and order passed by the Trial Court, we are of the opinion that there is no legal infirmity at all in the impugned judgment and order 28.4.1992 passed by the learned Trial Court. 14. In the result, we pass the following Order: (i) The Criminal Appeal No.659 of 1992 preferred by the State against acquittal of the accused is dismissed and the judgment and order dated 28.4.1992 passed by the learned Trial Court in Sessions Case No.163 of 1991 is hereby confirmed. (ii) As we have upheld the conviction and sentence of the accused under Section 498A of the Indian Penal Code, the Criminal Appeal No.382 of 1996 preferred by the accused against conviction is dismissed. (iii) We also dismiss the Criminal Revision Application No.164 of 1992 preferred by the original complainant Saroj as the same sans of any merits. 15. After the judgment is pronounced, Mr. Palwe, the learned Counsel appearing for the original accused prayed before this Court that the present judgment and order may kindly be stayed for a period of 6 weeks from today with a view to enable his client to approach the Hon'ble Supreme Court. The learned A.P.P. for the State and the learned Counsel for the original complainant opposed the said prayer. However, in the interest of justice we accede to the prayer of Mr. The learned A.P.P. for the State and the learned Counsel for the original complainant opposed the said prayer. However, in the interest of justice we accede to the prayer of Mr. Palwe, and stay the effect and implementation of the present judgment and order for a period of 6 weeks from today.