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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
V.M. DESHPANDE, J.
Anandrao s/o Janardan Hiware - Appellant
Versus
The State of Maharashtra - Respondent
CRIMINAL APPEAL NO. 278 OF 2001
Decided On : 11-07-2017
It is clear that one has to stand on a parapet wall of 1-1/2 feet from the ground level of the said well to fetch the water. The evidence of pancha witness shows that the well does not have any angle or pulley. However, evidence of PW 7 Police Sub-Inspector shows that one wheel is attached to the iron angle. There is nothing available on record to show that said wheel was in a working condition. The Court would attach much importance to the evidence of PW 4 since he is a resident of village Tohgaon itself to show that at the relevant time one was required to fetch water physically by both hands by standing on the parapet wall of the well.
In view of aforesaid evidences, possibility of slipping inside the well while fetching water is not completely ruled out. Once the material brought on record suggesting possibility of accidental death is not completely ruled out, benefit has to be extended in favour of the appellant.
Indian Penal Code, 1860 - Section 498-A-Cruelty.-Mere quarrels between husband and wife, not constitutes offence of cruelty under Section 498-A, IPC.
The prosecution has examined PW 2 a neighbour `S` who has turned hostile. However, his evidence shows that there used to be quarrels between accused No. 2 and deceased. PW 3 a Sarpanch, who also turned hostile, has stated that there used to be quarrels in between, appellant and his deceased wife.
From these evidences, it is clear that there was no demand from appellant. Quarrels were in the nature of domestic reasons. Merely because there were quarrels in between couple on domestic issues, that does not constitute an offence punishable under Section 498-A of the Indian Penal Code.
Indian Penal Code, 1860 - Section 498-A-Cruelty to wife.-In absence of any evidence to show that victim-wife committed suicide on account of ill-treatment by accused husband, offence of cruelty not made out against accused.
PW 1 first informant has admitted that no report was lodged with the police after resumption of co-habitation. Non-filing of report after resumption of co-habitation has its own importance. Exhibit 35 is not only signed by appellant deceased `S` and pancha witnesses but signed by PW 1 first informant `R` also. Exhibit 35 was required to be executed because according to the prosecution, deceased `S` was subjected to cruelty and only on execution of Exhibit 35 deceased was allowed to have cohabitation with appellant `A`.
Had there was any ill-treatment after execution of Exhibit 35 and prior to incident of drowning, it would have been a natural reaction on the part of PW 1 `R` to report the matter to the police or at least to Panchayat before whom Exhibit 35 was executed to point out them that in spite of execution of Exhibit 35, still appellant `A` is persistent in committing ill-treatment to deceased `S`. Nothing such has happened. Therefore, importance cannot be attached to bald statement made during the course of recording of evidence of PW 1 first informant `R` that after execution of Exhibit 35 ill-treatment continued. Therefore, Court reject the evidence of PW 1 first informant `R` that there used to be ill-treatment even after execution of document Exhibit 35.
Evidence Act, 1872 - Section 113-A-Indian Penal Code, 1860, Section 498- A- Presumption as to cruelty.-In absence of any evidence of proof of cruelty, unnatural death of married woman within 2 years of her marriage, not sufficient to raise presumption about cruelty.
It is the obligation on the part of the prosecution to prove that deceased `S` was subjected to cruelty within the meaning of Section 498-A of the Indian Penal Code. On such proof only, the prosecution can press into service statutory presumption as available to it under Section 113-A of the Evidence Act. In absence of proof of cruelty, merely because deceased `S` met with an unnatural death within a span of 2 years of her marriage, ipso facto the prosecution cannot take recourse to Section 113-A of the Evidence Act. Re-appreciation of the prosecution evidences shows that there was no ill-treatment after resumption of co-habitation after execution of document Exhibit 35 till the date of unfortunate incident on 20.5.1995.
Indian Penal Code, 1860 - Section 306-Abetment of suicide.-Since possibility of accidental death of victim-lady not completely ruled out hence accused entitled to benefit of doubt.
It is clear that one has to stand on a parapet wall of 1-1/2 feet from the ground level of the said well to fetch the water. The evidence of pancha witness shows that the well does not have any angle or pulley. However, evidence of PW 7 Police Sub-Inspector shows that one wheel is attached to the iron angle. There is nothing available on record to show that said wheel was in a working condition. The Court would attach much importance to the evidence of PW 4 since he is a resident of village Tohgaon itself to show that at the relevant time one was required to fetch water physically by both hands by standing on the parapet wall of the well.
In view of aforesaid evidences, possibility of slipping inside the well while fetching water is not completely ruled out. Once the material brought on record suggesting possibility of accidental death is not completely ruled out, benefit has to be extended in favour of the appellant.
Indian Penal Code, 1860 - Section 498-A-Cruelty.-Mere quarrels between husband and wife, not constitutes offence of cruelty under Section 498-A, IPC.
The prosecution has examined PW 2 a neighbour `S` who has turned hostile. However, his evidence shows that there used to be quarrels between accused No. 2 and deceased. PW 3 a Sarpanch, who also turned hostile, has stated that there used to be quarrels in between, appellant and his deceased wife.
From these evidences, it is clear that there was no demand from appellant. Quarrels were in the nature of domestic reasons. Merely because there were quarrels in between couple on domestic issues, that does not constitute an offence punishable under Section 498-A of the Indian Penal Code.
Indian Penal Code, 1860 - Section 498-A-Cruelty to wife.-In absence of any evidence to show that victim-wife committed suicide on account of ill-treatment by accused husband, offence of cruelty not made out against accused.
PW 1 first informant has admitted that no report was lodged with the police after resumption of co-habitation. Non-filing of report after resumption of co-habitation has its own importance. Exhibit 35 is not only signed by appellant deceased `S` and pancha witnesses but signed by PW 1 first informant `R` also. Exhibit 35 was required to be executed because according to the prosecution, deceased `S` was subjected to cruelty and only on execution of Exhibit 35 deceased was allowed to have cohabitation with appellant `A`.
Had there was any ill-treatment after execution of Exhibit 35 and prior to incident of drowning, it would have been a natural reaction on the part of PW 1 `R` to report the matter to the police or at least to Panchayat before whom Exhibit 35 was executed to point out them that in spite of execution of Exhibit 35, still appellant `A` is persistent in committing ill-treatment to deceased `S`. Nothing such has happened. Therefore, importance cannot be attached to bald statement made during the course of recording of evidence of PW 1 first informant `R` that after execution of Exhibit 35 ill-treatment continued. Therefore, Court reject the evidence of PW 1 first informant `R` that there used to be ill-treatment even after execution of document Exhibit 35.
Evidence Act, 1872 - Section 113-A-Indian Penal Code, 1860, Section 498- A- Presumption as to cruelty.-In absence of any evidence of proof of cruelty, unnatural death of married woman within 2 years of her marriage, not sufficient to raise presumption about cruelty.
It is the obligation on the part of the prosecution to prove that deceased `S` was subjected to cruelty within the meaning of Section 498-A of the Indian Penal Code. On such proof only, the prosecution can press into service statutory presumption as available to it under Section 113-A of the Evidence Act. In absence of proof of cruelty, merely because deceased `S` met with an unnatural death within a span of 2 years of her marriage, ipso facto the prosecution cannot take recourse to Section 113-A of the Evidence Act. Re-appreciation of the prosecution evidences shows that there was no ill-treatment after resumption of co-habitation after execution of document Exhibit 35 till the date of unfortunate incident on 20.5.1995.
1. Being aggrieved by judgment and order of conviction passed by learned 3rd Additional Sessions Judge, Chandrapur dated 13.9.2001 in Sessions Case No.150 of 1995, the appellant is before this Court.
2. By the impugned judgment and order, the appellant is convicted for the offence punishable under Section 306 of the Indian Penal Code and for that he is directed to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default of payment of fine amount to suffer rigorous imprisonment for two months.
The appellant is also convicted for the offence punishable under Section 498A of the Indian Penal Code and for that he is directed to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- and in default of payment of fine amount to suffer rigorous imprisonment for one month.
3. The prosecution case as it disclosed during the course of the Trial, is under:
PW7 Police Sub Inspector Subhash Anandrao Shinde was posted at Police Station Kothari in the year 1994-95.
PW1 Ramchandra Fakira Bawane came to the police station and lodged his oral report Exhibit 33. As per the said oral report, PW1 Ramchandra was having 2 sons and 2 daughters. Deceased Sangeeta was eldest amongst daughters. Her marriage was performed in the year 1993 with appellant Anandrao s/o Janardan Hiware who is a resident of same village. Out of wedlock, couple was blessed with one son Swapnil. At the time of lodging of the report, his age was 9 months.
The report further recites that deceased Sangeeta, her husband appellant Anandrao, and her mother-in-law Sundarabai used to stay jointly. She was subjected to cruelty at the hands of appellant Anandrao and mother-in-law Sundarabai on some domestic issues and that was reported to PW1 first informant Ramchandra. It is further stated in the first information report that 2 months prior to lodging of the report, appellant Anandrao poured kerosene on person of deceased Sangeeta. That time, brother-in-law of deceased Sangeeta took her to the house of police patil of village Tohgaon. There it was decided not to lodge report about said incident with the police. The first information report states that an understanding was given at that time to appellant Anandrao.
The report further states that on 18.5.1995 PW1 first informant Ramchandra and his wife had been to Rajura for attending marriage ceremony. On 20.5.1995, one Vinayak Tukaram Niwalkar came to him and informed that his daughter is missing. On getting such information, PW1 first informant Ramchandra came to village Tohgaon and searched for his daughter. That time, it was informed by appellant Anandrao that Sangeeta is missing from the time when she had left the house for washing clothes. Therefore, PW1 first informant Ramchandra went to a well and found clothes in a basket. The police were informed and the police fished out the body of deceased Sangeeta. As per the first information report, deceased Sangeeta committed suicide due to ill-treatment which she used to received for domestic reasons.
4. PW7 Police Sub Inspector Subhash Shinde, thereafter, registered an offence against appellant Anandrao and his mother Sundarabai vide Crime No.12 of 1995 for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code. The printed first information report is at Exhibit 50. After recording the first information report, PW7 Police Sub Inspector Subhash Shinde proceeded to the spot of incident which was a well situated near bus stand of village Tohgaon. The well belongs to Grampanchayat Tohgaon. The said well was situated at a distance of about 300 feet from the road of Tohgaon. The well was surrounded by shrubs. The spot panchanama of the spot of incident was recorded in the presence of panchas and it is at Exhibit 38. After fishing out dead body of deceased Sangeeta from the well, the inquest was also done over the dead body vide inquest panchanama Exhibit 27. The dead body of deceased Sangeeta was also referred
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