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2015 DIGILAW 2601 (BOM)

Keshao v. State of Maharashtra

2015-12-15

A.B.CHAUDHARI

body2015
JUDGMENT : A.B. Chaudhari, J. (Oral) – Being aggrieved by the judgment and order dated June 28, 2002 passed by the learned 2nd Additional Sessions Judge, Washim by which the appellant-Keshao Nigot was convicted for offence punishable under section 498A of the IPC and was sentenced to suffer R.I. for three years and to pay a fine of Rs. 300/-, in default, to suffer R.I. for three months; and also under section 306 of the IPC and sentenced to suffer R.I. for five years and to pay a fine of Rs. 300/-, in default, to suffer R.I. for three months, the present Appeal was filed in this Court. 2. In support of the Appeal, Mr. V.G. Wankhede, learned counsel for the appellant vehemently argued that the impugned judgment and order is illegal and is liable to be set aside. According to him, the learned trial Judge relied on the testimony of the prosecution witnesses, they being interested witnesses. He submitted that the trial Judge accepted the evidence of PW 1-Namdeo, the uncle of the deceased and PW 2- Janardhan, father of the deceased, who were admittedly the interested witnesses. He submitted that even the FIR was not lodged by PW 2 Janardhan, but was lodged by PW 1-Namdeo, her uncle and that by itself shows that PW 1-Namdeo was interested in prosecuting the appellant in a false case, because PW 1-Namdeo had demanded Rs. 1 lakh for not lodging the FIR against the appellant and that is the reason why the FIR was filed belatedly i.e. four days after the incident (i.e. incident of 11.8.1996 reported on 15.8.1996). He therefore submitted that there is reason to doubt the veracity of the evidence of these witnesses. He then submitted that there is no evidence whatsoever showing the live link so as to hold the appellant guilty for the offence punishable u/s 306 IPC. According to him, even the evidence as regards offence pertaining to section 498-A of the IPC was insufficient, inasmuch as there is no cruelty. Finally, in the alternative, he submitted that the sentence of five years for offence u/s 306 IPC is too harsh and it should be reduced. 3. Per contra, the learned A.P.P. supported the impugned judgment and order and submitted that there is no perversity whatsoever committed by the learned trial Judge inasmuch as there is no inconsistency between the evidence of the witnesses. 3. Per contra, the learned A.P.P. supported the impugned judgment and order and submitted that there is no perversity whatsoever committed by the learned trial Judge inasmuch as there is no inconsistency between the evidence of the witnesses. He therefore, prayed for dismissal of the Appeal. 4. I have gone through the impugned judgment and order and the reasons recorded therein by the learned trial Judge. I have gone through the entire evidence with the assistance of the learned counsel for the rival parties. 5. It is true that the conviction is based on the testimony of PW 1-Namdeo, the uncle of the deceased and PW 2- Janardhan, father of the deceased. 6. In the first place, the objection as to the delay in lodging the FIR will have to be considered. The FIR was lodged by PW 1 Namdeo, for which at the end of the FIR, he has given the reason. The reason being that since his brother Janardhan (PW 2) is impaired of hearing, he is lodging the report. In view of this statement which was found in the FIR itself, I am satisfied that there is nothing wrong if the PW1 Namdeo, the uncle of the deceased, had lodged the FIR. 7. The next objection about the delay in filing the FIR will have to be tested in the light of the cross-examination. The cross-examination nowhere shows that PW 1 was asked a single question as to the late lodgement of the FIR, by four days. It is then seen that the body was sent for post-mortem at Malegaon and thereafter last rites were performed at Malegaon and then parents of the deceased became sick due to shock and, therefore, the report was lodged late by four days. The explanation has been tendered by PW 1-Namdeo himself for which there is no serious challenge in the cross-examination. As such, I find the delay in lodging the FIR is properly explained. 8. The next question is about the evidence PW 1-Namdeo and PW 2-Janardhan and who according to the appellant, are the interested witnesses. It is indeed true that PW 1 and 2 are the close relatives of the deceased and it is a trite law that the evidence of such interested witnesses should be examined carefully and if found trustworthy and believed, it can be relied on. It is indeed true that PW 1 and 2 are the close relatives of the deceased and it is a trite law that the evidence of such interested witnesses should be examined carefully and if found trustworthy and believed, it can be relied on. Keeping in mind the said principle I have gone through the evidence of PW 1 Namdeo and PW 2-Janardhan so also cross-examination of these witnesses. The evidence of PW 1-Namdeo reads thus: "2. After marriage Seema started cohabiting with accused. She was treated properly for one month. After the marriage, Seema visited my house 5-6 occasions. However, when she come for Ashadi Ekadashi, she told that her husband some times beats her and in-laws harassed her and they all demand Rs. 15,000/-. 3. Thereafter she again came to me for Raksha bandhan along with her husband. That time also she told myself and my brother to arrange for Rs. 15,000/- as accused were harassing her too much. At that time, accused Keshav told myself and my brother to pay Rs. 15,000/- else he will not keep Seema with him. At that time we persuaded accused-Keshav to take Seema with him and we will arrange the money within 15 days. At that time Seema also told that as we have not paid money she will be ill-treated badly and her life was in danger. At that time I pacified Seema that I have given understanding to accused and it will not happen in future. However, if she is ill-treated, she should inform me. Seema was sent along with Keshav on 9.8.98. 4. On 11.8.1998 we received message of her death due to poisoning. Due to said message my brother and his wife became sick. On the next morning, myself, my nephew and other neighbourers went to village of accused. When we went there, we saw Seema lying dead in the house of accused. Froath had come from her mouth and some was spilled on the earth. Pungent smell of poison was coming from her mouth and in the entire room." 9. It is clear from the above evidence that deceased-Seema was sent along with Keshao, on 9.8.1998 with promise to fulfil the demand of the appellant for money i.e Rs. 15,000/- and after two days message was received about her death. Pungent smell of poison was coming from her mouth and in the entire room." 9. It is clear from the above evidence that deceased-Seema was sent along with Keshao, on 9.8.1998 with promise to fulfil the demand of the appellant for money i.e Rs. 15,000/- and after two days message was received about her death. Thus, there is a clear-cut live link between the cruelty that was committed by the appellant and her death. The evidence of PW 1-Namdeo is fully corroborated by his report (Exh.24). 10. The next is the evidence of PW 2-Janaradhan. He stated thus in paragraph nos.1,2, 3 and 4 of his examination-in-chief :- "1. Deceased Seema was my daughter. She was married accused Keshav on 12.5.98. After marriage, same came to me on 5-6 occasions. She did not made any grievance on first 2-3 visits. Then she told me that her husband and his parents ill-treats her and demands of Rs. 15000/-. She also told that they addressed her prickingly. I advised her that I have no money and her uncle has recently arranged her marriage, therefore,it is not proper to ask him also, about money. 2. Then she came for Akhadi and told that her husband and his parents demand money and harass her. Her husband beats her and in-laws address her prickingly. 3. Thereafter she came with accused Keshav for Rakshabandhan. That time also she told me that husband and in-laws harass her and demand money. Her husband asked her to bring the cooler lying idle at the house of her uncle and bring domestic flour mill lying with me. Accused keshav told me to give Rs. 15,000/- else he will not keep Seema with him. I had no money. I took accused Keshav and Seema to my brother Namdeo (PW 1) and told him to pay money, as accused were harassing Seema. Accused Keshav also told my brother to give Rs. 15000/- else he will not cohabit with Seema. Namdeo (PW 1) gave understanding to accused Keshav that he will arrange for money within 15-20 days and he should take Seema with him. Therefore, Seema was sent with accused Keshav. 4. Thereafter on 11.8.98 between 10 to 11 at night we received message of death of Seema, myself and wife became sick. ..." 11. Perusal in his evidence clearly shows that the appellant had demanded an amount of Rs. Therefore, Seema was sent with accused Keshav. 4. Thereafter on 11.8.98 between 10 to 11 at night we received message of death of Seema, myself and wife became sick. ..." 11. Perusal in his evidence clearly shows that the appellant had demanded an amount of Rs. 15,000/- and the he received the message of her death. The evidence also shows the ill-treatment given by the appellant to deceased Seema. Perusal of the cross-examination of this witness, to my mind, does not show any infirmity whatsoever. As such, the evidence of these two witnesses being trustworthy, I do not think that the trial Court has committed any error in accepting their evidence and recording the order of conviction. The story that demand of Rs. 1 lakh was made by PW 1-Namdeo, uncle of the deceased, and therefore he has lodged the FIR five days later is not even stated by the appellant accused in his statement recorded under section 313 Cr.P.C. Not only that PW 3-Gangubai, mother of the deceased, also corroborated the evidence of her husband and uncle of Seema. There is evidence of PW 4-Najmabee Pathan, a neighbour of Seema, who has fully supported the evidence of parents and uncle. I quote para no.18 from the impugned judgment regarding discussion of her evidence. "18. PW 4 Najmabi w/o Karimkha Pathan is the neighbourer of Seema's parents. She deposed that she has a daughter named Shabana of the age of Seema. Said Shabana was co-student in the same school with Seema and was also her classmate. They both used to go to school together. As such witness Najmabi is not only a neighbourer but Seema was friend of her daughter and used to go to her house with her daughter. According to her, Seema was married on 12.5.1998. After the marriage whenever Seema used to come to her parents' house, she was being called for tea by witness Najmabi. On initial 2/3 occasions, Seema expressed satisfaction about treatment of her inlaws. However, at the time of Akhadi, Seema told her that her husband and his parents asked her to bring Rs. 15,000/- and her husband beats her and his parents abuse her. She further deposed that at the time of Rakhi also, Seema had come to her house and told that her husband demands money, beats her and his parents abuse her." 12. 15,000/- and her husband beats her and his parents abuse her. She further deposed that at the time of Rakhi also, Seema had come to her house and told that her husband demands money, beats her and his parents abuse her." 12. The net result of the above discussion is that it was the appellant who committed the offence u/s 498A so also u/s 306 IPC is fortified and consequently, conviction will have to be confirmed. 13. The next question is the question about the sentence that was awarded by the trial Judge. The trial Judge awarded the sentence of five years for offence u/s 306 and three years for offence u/s 498A IPC. What I find is that the sentence deserved to be reduced from five years to three years looking to the circumstances, namely, the appellant undertaking to treat Seema well. At any rate, long period has already passed and, therefore, the sentence of five years deserves to be reduced to three years. That being so, I make the following order: ORDER (a) Criminal Appeal No. 387/2002 is partly allowed. (b) The judgment and order dated 28th June, 2002 passed by learned Second Additional Sessions Judge, Washim in Sessions Trial No.21/1999 convicting and sentencing the appellant of the offences punishable under sections 498-A and 306 of Indian Penal Code is confirmed. (c) The impugned judgment and order awarding sentence of rigorous imprisonment for five years and to pay a fine of Rs. 300/- in default, further rigorous imprisonment for three months for offence punishable us/306 Indian Penal Code is set aside and modified and, instead the appellant is sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 300.00 (rupees three hundred) in default, further rigorous imprisonment for three months. (d) All the sentences to run concurrently. (e) benefit of Section 428 Indian penal Code be given to the appellant.