Full Judgment Text
apeal 144.2001 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 144/2001
Chandrakumar Sundardas Taneja,
Aged about 33 years,
OccupationBusiness,
R/o Sindhi Colony,Ramnagar,
Chandrapur(MS) ..... APPELLANT
...V E R S U S...
State of Maharashtra,
Through Police Station Officer,
Police Station Ramnagar,
Chandrapur(M.S.). ...RESPONDENT
Shri Sahil S. Dewani, Advocate for appellant.
Miss T.H.Udeshi,Addl.P.P. for State.
CORAM: V. M. DESHPANDE, J.
DATED : JULY 6,2017
ORAL JUDGMENT
The present appeal is directed against the judgment
and order of conviction passed by learned Additional Sessions
Judge,Chandrapur in S.T.No.163/1996, by which the learned
Judge of the Court below convicted the appellant for the offence
punishable under Sections 498A and 306 of the Indian Penal
Code.
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 2
In respect of conviction under Section 498A of Indian
Penal Code, the appellant was directed to suffer R.I.for 1 year and
6 months and was directed to pay fine of Rs. 1000/ and in
default of payment of fine to suffer R.I. for 6 months.
So far as, his conviction under Section 306 of the
Indian Penal Code is concerned appellant was directed to suffer
R.I. for 3 years and to pay fine of Rs. 2000/ and in default of
payment of fine he was ordered to suffer further R.I. for one year.
2. The prosecution case as it is unfolded during the course
of trial, is as under:
Ashok Govindrao Kshirsagar(PW3) on 16/4/1996 was
attached to P.S.Ramnagar at Chandrapur as a police constable.
His duty hours were from 8.00 p.m. of 16/4/1996 to 8.00 a.m. of
17/4/1996. While he was discharging his duty at about 2.30 a.m.
he received a message from Police Control Room informing him
that fire has erupted at Sindhi Colony, Ramnagar. A direction was
given to him to visit spot alongwith duty officer. Accordingly duty
officer Shri Sheikh , this prosecution witness and other police staff
reached to the spot. During the course of their travel from police
station to Sindhi Colony, Ramnagar the factum of fire was
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 3
informed to Fire Brigade and also to police subinspector. When
this staff reached to the spot they noticed that fire brigade was
already reached there and steps were being taken to extinguish
fire. The fire broke in the house of present appellant and first
upper floor of the house was engulfed with such fire. Fire Brigade
extinguished the fire. The door of the room was chained from
inside. It was broken up. When P.C.Ashok(PW3) alongwith other
police staff entered the room they found dead body of woman in
complete charred condition and was lying along side the cot. The
dead body was identified as dead body of wife of appellant and
she was identified as “Harsha”.
3. Gopal Hemchandra Rupani(PW1), the brother of
deceased Harsha reached to police station. That time Mohd. Hanif
Sk.Shabbir(PW9)was Police SubInspector of P.S. Ramnagar.
Gopal (PW1) lodged his report (Exh.24). The gist of the FIR
lodged by first informant Gopal(PW1) is as under:
His sister whose maiden name was Maya Rupani was
married on 01/04/1994 with applicant. After 34 months of her
marriage appellant and his mother started causing illtreatment to
her in respect of dowry. She was beaten, she was abused by her
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 4
mother in law and the appellant. That because of the beatings at
the hands of the appellant and the mental harassment on the part
of her mother in law his deceased sister was suffering from
tremendous mental stress causing blood omitting. Though the
treatment was given to her by appellant, there was no
improvement. Resultantly, she was taken to K.E.M. Hospital,
Mumbai. No person from the appellant side came to Mumbai.
Thereafter first informant(PW1) and his sister came to Khamgaon,
the parental city of deceased Harsha. On 29/2/1995 his other
brother in law alognwith his sister dropped Harsha to her
matrimonial house at Chandrapur. The F.I.R. further recites that
thereafter again illtreatment started causing again blood omitting.
The fact of blood omitting was informed by the appellant
therefore, first informant came to Chandrapur and took his sister
to Khamgaon where she was administered some Ayurvedic
medicines with treatment. That treatment was continued about 2
and ½ months at Khamgaon. Thereafter, as per request made by
deceased she was taken to Chandrapur. It is stated in the F.I.R.
that, that time appellant and mother in law of deceased did not
allow her to enter into the house unless she gave in writing.
Subsequently, again the deceased was brought to Khamgaon and
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 5
she stayed at Khamgaon for 8 days. Thereafter again first
informant(PW1) and deceased came to her matrimonial house,
that time a panchayat was called. The respectable persons from
the community in the said panchayat ruled that deceased should
reside separately from her mother in law. Accordingly, appellant
and deceased started residing separately though in the same
house. It is further stated in the F.I.R. that in spite of living
separately harassment continued and therefore one Chandrakant
Adwani, a member of Sindhi Panchayat called first informant
(PW1) and his father to attend panchayat at Chandrapur. Hence,
on 16/4/1996, at Chandrapur panchayat took place in the night
hours. After panchayat was over first informant and his father
went to lodge for night stay,however in the night one person
informed them to accompany to the house of appellant and when
they reached there they noticed smoke was emitting from the
upper floor and on opening a door he noticed the dead body of his
sister.
4. Mohd. Hanif(PW9) noticed that since the report was
disclosing commission of cognizable offence, he registered the
offence vide Crime No.107/1996, for the offence punishable
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 6
under Sections 498A and 306 of the Indian Penal Code against
the appellant and his mother Laxmibai Taneja. The printed F.I.R.
is at Exh.53. The investigating officer (PW9) thereafter made a
visit to the spot of occurrence and spot panchnama(Exh.26) was
drawn. In the meanwhile, inquest was also done on the dead body
by drawing inquest panchnama(Exh.28). Dead body was also sent
to post mortem. Mohd. Hanif(PW9) also seized the articles found
on the spot and he recorded statements of witnesses. Thereafter,
he handed over investigation to Kereubhai Dattatraya Kolhe
(PW7).
On being entrusted with the investigation,
Kerubhai(PW7) recorded seizure panchnama(Exh.44) under
which he seized one audio cassette and two stamp papers (Exhs.
33 and 34). A stamp dated 26/10/1995(Exh.33) which shows that
it was in a nature of the agreement executed by deceased and also
a kabuliyatnama (Exh.34). After conducting other usual
investigation he filed chargesheet before the Court of law.
Learned Magistrate after filing of final report under
Section 173 of Cr.P.C. before him noticed that the offence is
exclusively triable by the Court of Session therefore, he passed
committal order.
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 7
5. After committal order was passed, case landed in the
Court of Session and it was registered as S.T.No.163/1996.
6. A charge was framed against appellant and his mother
Laxmibai for the offence punishable under Sections 498A and
306 of the Indian Penal Code. Both of them abjured their guilt
and claim for their trial.
7. During the pendency of the trial and even prior to the
commencement of the evidence of the prosecution case Laxmibai
died and therefore trial was abated.
8. In order to bring home guilt of the appellant the
prosecution examined in all 9 witnesses and also relied on the
various documents which were proved during the course of trial.
After full fledge trial, the Court below was of the view that
prosecution has successfully proved its case against the appellant,
therefore appellant was convicted as observed in the opening
paragraph of the judgment. Hence, this appeal.
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 8
9. I heard Shri Sahil S. Dewani, learned counsel for
appellant and Miss T.H.Udeshi,Addl.P.P. for State. With their able
assistance I have gone through the entire record and proceedings
and notes of evidence.
10. The learned counsel for appellant strenuously urged
before this Court that the case of the prosecution is completely
destroyed by the version of the prosecution witness Meghraj
Dewandas Pabnani(PW5). He submitted that this Meghraj was
examined by the prosecution as its witness therefore the
prosecution cannot disown him. He further submitted that though
during examination in chief itself this prosecution witness (PW5)
has supported the version of the defence he was not declared
hostile and therefore in view of the law laid down by Hon'ble
Apex Court in the case of Mukhtiar Ahmed Ansari..vs..State
(NCT of Delhi),(2005)5SCC258 , in paragraph no.29 in which
the Hon'ble Apex Court has ruled that, when the prosecution
never declared P.W.1 in the said reported case as hostile witness
when his evidence did not support the prosecution and it
supported defence accused has every right to rely on his evidence.
He also pointed out that the observation of Hon'ble Apex Court in
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 9
paragraph no.30 of the said reported decision that in absence of
declaring witness hostile his evidence is binding on the
prosecution.
11. His another limb of submission is that the prosecution
has utterly failed to prove the harassment. He invited my attention
to the eviddence of Gopal(PW1) and Hemchand (PW2) to point
out that their evidence is not corroborative with each other on
material aspect. He further submitted that the allegations against
the appellant are too general in nature and therefore he
submitted that the charge for the offence punishable under
Section 498A of the Indian Penal Code is not proved at all.
In so far as offence under Section 306 of the Indian
Penal Code is concerned, it is his submission that there is no
evidence to show that the appellant has abetted the commission of
suicide. He invited my attention on the various reported cases of
Hon'ble Apex Court as well as this Court to point out that in
absence of any positive evidence to prove the ingredients of
Section 107 of the Indian Penal Code the appellant can not be
held liable for the offence punishable under Section 306 of the
Indian Penal Code.He further submitted that letter (Exh.37) dated
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 10
25/11/1995 which was considered by the learned Judge of the
Court below as dying declaration of deceased Harsha is erroneous
and therefore, in his submission the conviction cannot stand to the
scrutiny of the law.
12. Per contra, learned A.P.P. strenuously urged before me
that the evidence of Gopal(PW1) and Hemchand(PW2) shows
that there was no all well for the deceased after initial five months
period of her marriage. She further submitted that since the
unnatural death occurred within a span of 7 years the
presumption under Section 113A of the Indian Evidence Act is
squarely applicable and therefore the appellant was rightly
convicted. She further pointed out that no lady will execute the
documents like Exhs. 33 and 34. Therefore, she submitted that
reliance placed by the learned counsel for the appellant on the
said documents is misplaced. She also relied on the evidence of
Raju Bhagchand Chawla(PW8). She therefore ultimately
submitted that appeal be dismissed.
13. The factum of death within a span of seven years is
not disputed in view of the date of marriage and date of death.
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 11
The dead body of Harsha was referred for post mortem to Dr.
Nitin Manoharrao Kallurwar(PW6). On 17/4/1996 when was
attached to Civil Hospital,Chandrapur as medical officer he
conducted post mortem over the dead body of Harsha. This
autopsy surgeon proved post mortem notes (Exh.47). As per post
mortem report (Exh.47) the deceased suffered 100% burn injuries
and cause of death was “ shock due to superficial to deep burn
injuries 100%”.
14. In view of the post mortem report(Exh.47) the
prosecution has proved that Harsha met unnatural death due to
burning.
Merely because a married woman met unnatural death
due to burn injuries that by itself is not sufficient to attract the
presumption as envisaged under Section 113A of the Indian
Evidence Act. In order to attract the said provision the prosecution
is obliged to prove that the deceased was subjected to harassment
to such an extent that she is driven to commit suicide. Then and
then only the said presumption can be pressed into service.
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 12
15. Exh.24 is the oral report lodged by Gopal(PW1). F.I.R.
is not a substantive piece of evidence, same can be used either for
contradiction or corroboration of the maker of such document.
The evidence of Gopal(PW1) shows that his evidence is silent
about the harassment after first five months of the marriage
between appellant and Harsha. On the contrary, he stated that
after first five months there used to be quarrel in between Harsha
and appellant. Though Hemchand(PW2), the father of deceased
Harsha deposed from the witness box that the appellant used to
give cruel treatment both physical as well as mental on this
crucial aspect he could not found support from his son Gopal
(PW1). Though both these prosecution witnesses stated in
chorus that they used to receive letters from deceased intimating
them about the illtreatment at the hands of the appellant, for the
reason best known to the prosecution those letters were not
placed on record. The matrimonial place of deceased Harsha was
at Chandrapur and parental house of Harsha was at Khamgaon.
According to these prosecution witnesses (PW1 and PW2) the
letters were sent by Harsha from Chandrapur and they received
the same. Those letters must have been received by them at
Khamgaon and thus ordinarily those should be in their custody. It
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 13
was expected from these two witnesses when they disclose to the
Court that they gathered information about the illtreatment to
their near and dear at the hands of appellant through those letters
to place the same on record. Those letters in my view will be
primary evidence to show that really Harsha at any point of time
disclosed to her father (PW2)and her brother (PW1) about the
illtreatment. Not producing those letters on record in my view the
Court is required to draw adverse inference against the
prosecution to that extent.
16. It is not disputed by these prosecution witnesses that
when deceased was omitting blood that time treatment to her was
given by the appellant. Their evidence shows that since that
omitting continued therefore she was taken to K.E.M. Hospital,
Mumbai. As we all know that better medical facilities are available
at Mumbai than Chandrapur. Shifting Harsha from Chandrapur
to Mumbai for her medical treatment cannot be used against the
appellant. The evidence of Gopal(PW1) which is also supported by
Hemchand(PW2) shows that after treatment at Mumbai they
returned to Khamgaon. Thereafter they were called at Chandrapur
and the appellant has called a meeting of panchayat. It is an
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 14
admitted position that after returning from K.E.M. Hospital,
Mumbai till death of Harsha two meetings of panch committee
consisting of respectable persons from Sindhi community were
called at Chandrapur. Both these meetings were admittedly
attended by Gopal(PW1) and Hemchand(PW2).
17. In first meeting it was decided that the couple should
reside separately from the mother of appellant. In fact,the said
aspect is duly pointed out to the Court by Meghraj(PW5). His
version shows that in the first meeting there were no accusations
against the present appellant. What was stated during that
meeting by the deceased was against mother in law of the
deceased and therefore in the said meeting it was decided that the
appellant should reside separately alongwith his wife (deceased
Harsha) from his mother Laxmibai. It is also not in dispute that
the verdict of the said panch committee was accepted by the
appellant and the appellant started residing separately from his
mother with his wife though in the same house.
18. After lapse of three months second meeting was called
and that was dated 16/4/1996. This meeting was also attended by
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 15
Gopal (PW1) brother and Hemchand(PW2) father of deceased
Harsha and Meghraj(PW5).
It is established on record that this Meghraj(PW5) is
not related to the appellant. He belongs to Sindhi community to
which appellant and deceased belong. His house is situated about
400 houses away from the house of the appellant. His evidence
shows that when first meeting was held in that meeting nobody
from the complainant's side raised any finger against the appellant
that he has caused illtreatment or harassment of any nature.
Blame was put on deceased accused Laxmibai. Had really the
appellant was also responsible for causing any type of illtreatment
to the deceased then the brother and father of deceased would not
have missed this particular aspect in bringing to the notice of the
panchayat. Further evidence of Gopal (PW1) shows that appellant
was not responsible for any illtreatment. The evidence of Meghraj
(PW5) shows that document (Exh.33) was executed by Harsha
(deceased), her father Hemchand(PW2), Gopal(PW1), her
maternal uncle and brother in law. His evidence shows that while
executing this document (Exh.33) these persons were not
compelled to write the same. Another document which is brought
on record dated 22/6/1995 is Exh.34. What is important to note
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 16
that these documents which clearly absolve the appellant are not
coming on record from the custody of the accused persons but
those were seized during the course of investigation by
investigating officer. Careful reading of these two documents
(Exhs. 33 and 34) show otherwise. In Exh.33 it is admitted that
false allegations were made against the appellant and his family.
So also, Exh.34 is on the same line.
The incident of burning is early hours of 17/4/1996.
Both Gopal (PW1) and Hemchand(PW2) admitted that they
participated in meeting of panchayat on 16/4/1996 in night
hours. This meeting was also attended by Meghraj(PW5). His
evidence shows that in the said meeting Harsha told the
panchayat members that she was harassed. It would be useful to
reproduce the version of Meghraj as to what happened in the said
meeting.
“ In that meeting Harsha was saying that these persons
were harassing her. According to him these persons
means mother in law of Harsha”
Thus, even in the second meeting nothing was attributed against
the present appellant. Every thing was attributed against mother
in law. Though Meghraj(PW5) has stated aforesaid he was not
declared hostile by the prosecution. He is a prosecution witness,
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 17
he was not supporting the prosecution, it was open for the
prosecutor to declare him “hostile”. Therefore, in my view,
learned counsel for appellant has rightly relied on law laid down
by Hon'ble Apex Court in the reported case Mukhtiar Ahmed
Ansari (cited supra). Thus, even in the meeting dated 16/4/1996
there was no iota of accusation against the present appellant that
he caused any harassment. On the contrary, evidence of Meghraj
(PW5) further reveals that appellant played a cassette on cassette
player which was also seized during the investigation by the
investigating officer under seizure memo (Exh.44) and after
hearing the said cassette Gopal(PW1) and Hemchand(PW2) told
deceased Harsha that she proved them false. It would be useful
to reproduce the relevant portion of evidence of Meghraj(PW5):
“ It is true that in the meeting held on the day of
incident after cassette was played , the father of Harsha
says that she proved them false and defame them in
the society”.
His evidence further reads as under:
“ He has no wish to see the face of Harsha, thereafter
Harsha started weeping , thereafter all the members
and father and brother of Harsha left meeting.”
19. According to the prosecution this particular meeting
was finished at about 11.30 p.m. and the incident has occurred at
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 18
2.30 a.m. of 17/4/1996. Thus, it is quite possible that deceased
Harsha must have felt disgusted due to scolding of her own father
and must have taken the extreme step in her life.
20. The learned Court below in my view has incorrectly
placed reliance upon Exh.37. Exh.37 is written on 25/11/1995.
After letter (Exh.37) dated 25/11/1995 there were two
meetings. Thus, letter (Exh.37) was not written by deceased in
expectation of her death therefore the said cannot be considered
as dying declaration as considered by learned trial Court.
21. The evidence of Raju Bhagchand Chawla(PW8) on
which learned A.P.P. heavily relied, in my view is not well
founded in view of the fact that his evidence is found to be
improved version. Therefore, this Court is not giving any
importance to the improved version of the said witness Raju.
22. Reappreciation of the entire prosecution case
according to this Court shows that there were no allegations that
this appellant made any demand from deceased. Deceased
Harsha was not subject to cruelty for any such demand from the
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 19
present appellant. Further in my view, there is no evidence
available on record by which it can be said that the appellant is
guilty of committing that type of harassment to deceased which
drives her to commit suicide. Therefore, in my view, the charge
under Section 498A of the Indian Penal Code is not at all proved
against the appellant. In that view of the matter, presumption
under Section 113A of the Indian Evidence Act is not available to
the prosecution.
23. As observed above, in a meeting dated 16/4/1996
which lasted till 11.30 p.m. cassette was played and after hearing
the cassette father Hemchand(PW2) scolded deceased Harsha and
declared that he will not see her face and thereafter immediately
she committed suicide. Therefore, in my view, it cannot be held
that appellant abetted deceased to commit suicide. The
reappreciation of the evidence of the prosecution case leads me
to pass the following order.
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::
apeal 144.2001 20
ORDER
I) Appeal is allowed.
II) The judgment and order of conviction passed by
learned Additional Sessions Judge,Chandrapur dated
16/5/2001 in S.T.No.163/1996 is hereby quashed and
set aside.
III) Appellant is acquitted of the offence punishable
Sections 498A and 306 of the Indian Penal Code.
IV) His bail bonds stand cancelled.
JUDGE
kitey
::: Uploaded on - 13/07/2017 ::: Downloaded on - 02/06/2024 02:58:26 :::