Partly allowed

Kamal Shamrao Ghodake and Anr. v. the State of Mah

Bombay HC15 Mar 2012APEAL/403/2010

Case brief

AI extract

What is this about?

High Court benched by Patil and Nalawade examined appeals against conviction for murder and cruelty in a matrimonial dispute involving a child's death. The court acquitted the appellants of murder and cruelty due to unsatisfactory witness evidence and granted benefit of doubt, allowing the appeal against the Section 498-A conviction.

What did the court decide?

Criminal Appeal No.403/10 allowed; conviction and sentence under Section 498-A IPC of Kamal and Sunita quashed and they are acquitted. Criminal Appeal No.419/2010 dismissed.

Kamal Shamrao Ghodake and Anr. Vs the State of… — Child Custody and Guardianship | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.

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CRIMINAL APPEAL NO.403/2010

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1] Kamal W/o Shamrao Ghodake Aged 66 yrs. Occ-Household R/o Andoor, Tq. Tuljapur, Dist.Osmanabad.

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2] Sunita D/o Shamrao Ghodake Aged 24 yrs. Occ-Household R/o Andoor, Tq. Tuljapur, Dist.Osmanabad. .. APPELLANTS [ORIG.ACCUSED NO.2 & 3]

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VERSUS

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The State of Maharashtra, [Copy to be served on Public Prosecutor, High Court Aurangabad. .. RESPONDENT

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CRIMINAL APPEAL NO.419/2010

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Bhimrao S/o Shamrao Ghodake Aged 29 yrs, Occ-Teacher R/o Andoor, Tq. Tuljapur Dist.Osmanabad. .. APPELLANT [ORIG.ACCUSED NO.1]

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The State of Maharashtra [Copy to be served on Public Prosecutor, High Court, Aurangabad] .. RESPONDENT

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Shri S.S.Choudhari,Adv.for appellants. Smt.V.A.Shinde,APP for Respondent.

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CORAM : NARESH H.PATIL T.V.NALAWADE,JJ.

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DATE : 15/03/2012.

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ORAL JUDGMENT : [PER NALAWADE,J.]

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1] Both the appeals are filed against judgment and order of Sessions Case No.110/2009 which is decided by Additional Sessions Judge, Osmanabad. The appellant from Criminal Appeal No.419/10 is convicted and sentenced for offences punishable under Sections 302, 498-A of I.P.C. The appellants from Criminal Appeal No.403/10 are convicted and sentenced for offence punishable under Section 498-A r.w. 34 of I.P.C. Both sides are heard.

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2] Complainant Shridevi is the wife of appellant Bhimrao [from Appeal No.419/10]. Appellant Kamal from other appeal is the mother of Bhimrao and the appellant Sunita is a sister of Bhimrao. Sunita

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was unmarried at the relevant time. One Nandkumar, maternal uncle of Bhimrao and one Dhondiba, brother of Bhimrao were also made

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accused in the Sessions case but they are acquitted of all the offences. It was submitted that the State has not challenged that part of decision given by the trial Court.

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3] Shridevi was given in marriage to Bhimrao in the year 2006. After the marriage, Shridevi started cohabiting with Bhimrao in village Revalgaon, Tq. Ambad, Dist.Jalna, as Bhimrao was working as a teacher at Revalgaon. Other accused persons were living in village Andoor, Tq. Tuljapur, Dist.Osmanabad which is native place of Bhimrao. It is the case of prosecution that after 7 to 8 months of the marriage, accused Sunita went to Revalgaon and she started staying there with the family of Bhimrao and the trouble started after shifting of Sunita to Revalgaon.

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4] It is the case of prosecution that accused Sunita was instigating Bhimrao to ask complainant to bring Rs.1 lakh from her parents. She was also instigating to harass the complainant on that count. Due to such instigation, Bhimrao started asking complainant to bring money from her parents and he also started harassing her, which include giving beating to her. Complainant expressed that her parents were

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not in a position to give such amount but Bhimrao continued to make said demand.

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5] It is the case of prosecution that when the demand of Bhimrao was not met with by the complainant and her parents, Bhimrao shifted the residence of complainant to Andoor. It is contended that at Andoor, ill treatment was given to complainant by Bhimrao, his mother and his sister Sunita. It is contended that they continued to make their demand of Rs.1 Lakh. When the demand was not met with, they sent complainant to her parents house. It is the case of prosecution that the complainant was taken to matrimonial house by relatives of complainant on parents side and she was left there after convincing Bhimrao and his relatives that the parents of complainant were not in a position to meet the demand. Bhimrao and his relatives however, continued to give ill treatment to the complainant. Allegations were made against accused no.4 Nandkumar who is acquitted, that he had given beating to complainant after visiting Andoor and he he had said that he was ready to give his daughter in marriage to Bhimrao, if Bhimrao was ready to send complainant to her parents house.

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6] It is the case of prosecution that complainant was then sent to her parents house for delivery. Complainant gave birth to a female

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child, the deceased Pranjal. Eight days prior to the date of incident in question, Bhimrao went to the house of parents of complainant and he brought back complainant and Pranjal to Andoor. Bhimrao had promised the parents of complainant that he would not give ill treatment to complainant.

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7] The incident took place on 9/2/2009 at Andoor near the house of Bhimrao at about 12 noon. Complainant, Bhimrao and accused nos.2 and 3 were present in the house. It is the case of prosecution that Bhimrao and accused nos.2 and 3 picked up quarrel with complainant as their demand of Rs.1 Lakh was not met with. It is contended that during quarrel, instigation was given by accused nos.2 and 3 to Bhimrao and then Bhimrao said to complainant that he would finish Pranjal if the demand is not met with. It is contended that Bhimrao then snatched Pranjal who was aged about 4 months, from the hands of complainant and he started hitting the head of Pranjal on a stone, which was kept for washing clothes. It is contended that accused nos.2 and 3 prevented complainant from going towards the spot. Pranjal died on the spot.

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8] A.P.I. Kalaskar [p.w.10] who was attached to Naldurg police station Tq. Tuljapur, Dist.Osmanabad, learnt about the incident at

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about 1 p.m. and he rushed to the spot. During enquiry, complainant gave report to Kalaskar and on the basis of this report, crime at Cr.No.20/09 came to be registered in Naldurg police station. Kalaskar made investigation of the case. He prepared spot panchanama and inquest panchanama in the presence of panch witnesses and he referred the dead body for post mortem examination. Accused no.1 had gone to police station after the incident and he was arrested there. Accused nos.2 and 3 also came be arrested on the same day. Shirt of Bhimrao was taken over. There were blood stains on the shirt. Pieces of glass bangles of different colours were lying on the spot and they were taken over. Kalaskar recorded statements of some persons who had gathered there.

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9] The doctor who conducted post mortem examination on the

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dead body of Pranjal gave opinion that Pranjal died due to shock due to haemorrhage due to head injuries. The articles taken over during investigation by Kalaskar were sent to Chemical analyser’s office. Blood was detected on the clothes of accused no.1. As allegations of ill treatment were made against other accused also charge sheet came to be filed against all the five persons.

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10] In the trial Court, prosecution has relied on both direct and

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circumstantial evidence. The trial Court has believed the complainant to some extent and so only the accused no.1 Bhimrao is convicted for

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offence of murder of Pranjal. The trial Court has held that the prosecution has proved the ill treatment given by accused nos.1 to 3 and so they are convicted and sentenced for offence punishable u/s 498-A r.w. 34 of I.P.C.

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11] It was mainly submitted for appellants that the possibility that Pranjal accidentally fell from the hands of complainant cannot be ruled out and this possibility is not seriously considered by the trial Court. It was alternatively submitted that the evidence is sufficient to make out a case that there was quarrel and the incident took place during quarrel. It was submitted that in view of the evidence, at the most, accused no.1 can be held guilty for offence punishable u/s 304 Part II of I.P.C. It was submitted that accused no.1 and complainant were living separate from other accused and so there was no opportunity for other accused to give ill treatment. It was submitted that the reason for which the accused were allegedly demanding Rs.1 Lakh, is not given and so this case of prosecution also appears to be improbable in nature. The learned A.P.P. supported the decision of the trial Court.

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12] For proving the offence of murder, prosecution has heavily relied on the evidence of Shridevi [p.w.2], the complainant. The evidence of Devidas Ghodake [p.w.3] who according to prosecution had come to the spot by chance is also given. Some witnesses are examined to corroborate the version of Shridevi [p.w.2] that there was ill treatment given to her by accused nos.1 to 3. Some witnesses have given evidence to prove the circumstances which support the version of Shridevi.

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13] Admittedly, the marriage between Bhimrao and complainant

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took place in the year 2006. The incident in question took place on 9/2/2009. On the date of the incident, deceased was aged about 4 months. Accused no.1 is an educated person and he was working as an Assistant Teacher. The complainant is also educated and she has passed 10^th standard examination. The incident took place near the house of accused no.1 in village Andoor at about 12 noon. These circumstances need to be kept in mind at the time of appreciation of the evidence. Though the map of scene of offence was not prepared by the investigating agency, there is the evidence of spot panchanama and some photographs were taken by investigating agency of the spot during the investigation. On the basis of this record, the evidence given by complainant and so called eye

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witnesses Devidas needs to be appreciated.

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14] Shridevi [p.w.2] has deposed that she was brought to matrimonial house with Pranjal about eight days prior to the incident in question. She has deposed that accused no.1 had promised not to give ill treatment. She has deposed that there was ill treatment to her from accused nos.1 to 3 as the demand of Rs.1 lakh made by them was not met with by her parents.

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15] Shridevi [p.w.2] has deposed that on the date of the incident, accused nos. 1 to 3 were at home. She has deposed that at about 12 noon, they picked up quarrel with her as the demand of Rs.1 lakh was not met with. She has deposed that during the quarrel, accused no.1 said to her that he would finish Pranjal if she was not ready to bring money from her parents. She has deposed that accused no.1 then snatched Pranjal from her hands and he threw Pranjal on floor to kill her. She has deposed that accused nos.2 and 3 then caught legs of Pranjal, they took her to a stone which was used by them for washing clothes and there, they hit the head of Pranjal on the stone. She has deposed that accused nos.1 to 3 thus killed Pranjal. She has deposed that after the incident, she started shouting and then some persons passing by the road came there. The report given by Shridevi is

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proved as Exh.38. She has given evidence that when police came to the house, she showed the spot of offence to them.

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16] In F.I.R. at Exh.38 Shridevi had not reported to police that accused nos.2 and 3 had held the legs of Pranjal and they had dashed the head of Pranjal on the stone. This omission in Exh.38 is a material omission and due to such omission, this evidence is not considered as against accused nos.2 and 3 by the trial Court. Further, there is no specific medical evidence to corroborate the version that all the three accused dashed the head of Pranjal on the stone. Though the accused nos.2 and 3 are given benefit by the trial Court of this material omission, the exaggeration made by complainant to involve accused nos.2 and 3 needs to be kept in mind at the time of appreciation of the evidence.

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17] Devidas [p.w.3] hails from village Gulhali. He has deposed that for taking medical treatment from a doctor he had gone to Andoor and by chance, he was present near S.T. stand of Andoor. S.T. stand of Andoor is situated in the vicinity of the house of accused. He has deposed that when he heard the shouting, he paid attention towards the house of the accused and then he noticed that one person was hitting a child by holding its legs on a stone. He has deposed that he

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then went to the spot and there he saw that there was blood on a stone. He has deposed that he noticed that a lady was held by two women and the lady who was held disclosed that that the child was her daughter and the act was done by her husband and the two ladies. He has deposed that the lady complainant further disclosed that the husband and his relatives were demanding Rs.1 Lakh from her parents and on that count, ill treatment was given to her.

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18] The version given by Devidas [p.w.3] is inconsistent on material points with the version given by complainant. It is not in the evidence of the complainant that accused no.1 had hit the head of the child on the stone by holding the legs of the child. Such evidence is given by her as against accused nos.2 and 3. Exh.38 F.I.R. shows that there is no mention of Devidas in it. F.I.R. also does not show that there was opportunity to some persons like Devidas to see the incident from S.T. stand.

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19] The incident took place on 9/2/2009 and the statement of Devidas [p.w.3] was recorded by police on 12/2/2009. The cross examination of Devidas shows that he is an interested witness. The evidence in examination in chief shows that he had tried to show that he did not know the complainant or the accused prior to that date.

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Only during cross examination, he admitted that a sister of complainant is given in marriage to one Vilas Ghodake of his village. The maternal uncle of complainant who is [p.w.6] is resident of Gulhali and Vilas is real brother of [p.w.6]. Village Gulhali is situated at a distance of 15-16 Kms. from Andoor. The evidence of Devidas shows that he could have gone to any dispensary from Naldurg which is at much less distance from his village. Devidas has not given the name of the doctor of Andoor who was to give him treatment. His evidence shows that he had not received any treatment in Andoor. The evidence of Devidas about his presence in Andoor on that day is not supported by any record and he has tried to show that he travelled by a private vehicle. Further, the evidence of spot panchanama and the photographs show that the spot where the incident took place is not visible from S.T. stand Andoor.

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20] Nagnath [p.w.7] and Rajkumar [p.w.8] are examined by prosecution to prove the spot panchanama. Nagnath [p.w.7] is declared hostile. Rajkumar [p.w.8] has also given some admission favourable to defence in the cross examination. On the basis of these admissions, it can be easily inferred that Rajkumar also wanted to support the accused. It is already observed that there was no opportunity to others to see the actual incident, but these witnesses

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have tried to give some evidence in support of the accused. They have tried to say that people were saying that Pranjal accidentally fell from the hands of complainant. The police officer Kalaskar [p.w.10] has given evidence on spot panchanama and it is proved as Exh.47. The evidence of police officer shows that S.T. stand chowk is situated at the distance of ½ Km. from the spot. Though he has avoided to admit that there are many trees between the spot of the offence and the S.T. stand, there is other record like photographs to show that the spot of offence is not visible from S.T. stand. The photographs are proved by prosecution by examining Kalyan Karpe photographer [p.w. 12] and the photographs are at Exh.60. The photographs show that the incident took place near the house of accused and the house is situated at some distance from main road. There are trees on one side of the house. These circumstances and particularly the relation of Devidas with the complainant are sufficient to create reasonable doubt about his evidence. Though the trial Court has believed Devidas, this Court holds that in such a serious case, no reliance can be placed on the evidence of such a witness.

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21] The spot panchanama at Exh.47 and the evidence of Kalaskar [p.w.10] show that the house of persons like Barje and Ganpati Ghodake are situated on western side of the house of the accused.

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The investigating officer has deposed that at the relevant time, nobody from these two houses were present in their houses. In any case, in view of the photographs, spot panchanama and hand sketch map of the location prepared on the spot panchanama, it can be easily inferred that the outsiders like the persons from house of Barje or Ganpati had no opportunity to see the actual incident. Further the incident must have taken place within few minutes. Evidence is given by prosecution by examining two witnesses that immediately after the incident, accused no.1 went to police station. So if there is circumstantial check to the evidence of complainant [p.w.2], it can be believed and conviction can be given as against accused no.1 Bhimrao.

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22] Accused nos. 2 and 3 are acquitted of offence of murder. So, circumstantial evidence given against them need not be discussed. So the other circumstantial evidence can be considered if it gives corroboration to the case of prosecution as against accused no.1. The spot panchanama at Exh.47 and the photographs show that the stone on which blood was found was lying at the distance of 28½ ft. from the residential place of accused. It was noon time and there was no reason to take a child towards the stone at that time. The pieces of bangles were lying near the stone and in the courtyard of the

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house. It is suggested that complainant was to give bath and for that, oil was applied to the child and the child accidentally fell from the hands of complainant. The description given in the spot panchanama does not corroborate this suggestion. There is nothing in medical papers also in this regard.

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23] Dr.Diggikar [p.w.1] has given evidence that he conducted post mortem examination on the dead body of Pranjal between 4 and 5 p.m. on 2/9/2009. He found following injuries on the dead body :

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1] CLW on right side of forehead. 2.5 X 1 cm. bone deep with fracture of underlying frontal bone. Margine irregular, reddish in colour.

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2] Abrasion on right nostril 1 cm .in length 2 mm. side.

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3] Abrasion on right thigh lateral side 2 X 1 cm.

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4] Linear abrasion on right knee lateral side 2.5 cm. in length. Redish in colour.

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5] Abrasion on left cheek 2.5 X 2

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cm. size. Redish in colour.

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6] 4 imprint abrasion on right leg lower half anterior surface due to small stones about 0.3 to 0.4 cm. in diameter.

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The doctor found the following internal injuries on the dead body.

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1] Hematoma corresponding to injury on body. No.1 in column no.7.

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2] Hamatoma under scalp at 2 cm. lateral to Hematoma no.1.

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3] Hematoma under scalp left parietal region.

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The doctor also found following corresponding injuries on the dead body :

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Skull :- 1] Depressed fracture of frontal bone on right side corresponding to injury no.1 in no. 1 4.5 X 2.5 cm. in size.

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2] Fracture of left parietal

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bone. linear, 4 cm. in length.

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3] Depressed fracture of occipital bone on left side of 3 X 2 cm in size.

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Brain : Frontal lobe of brain on right side crushed. Occipital lobe of brain on left side crushed.

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24] The post mortem report at Exh.35 is consistent with the oral evidence of Dr.Digikar. The doctor has given opinion that such injuries can be caused if the head is hit on a stone. No evidence however is brought on the record to show as to whether the child was hit probably one time or many times. The doctor was however, sure that force was used for causing the injuries. The doctor has ruled out the possibility of sustaining of the injuries in accidental fall. Thus, the medical evidence is in support of the case of prosecution and it does not support the probability suggested by defence.

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25] In the cross examination, complainant has admitted that she used to give bath to child after applying oil. it can be said that the English version is not the correct translation of the Marathi version given by witness. Marathi version shows that in ordinary course she

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used to apply oil before giving bath and no admission as such is given by [p.w.3] that on that day also she had applied oil to the child and she was about to give bath to the child.

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26] Sonawane [p.w.9] was working as Police Station Officer in Naldurg police station on that day. He has given evidence that accused had come to the police station at about 1.30 p.m. to give report about the incident. Though Sonawane [p.w.9] has tried to say that accused admitted his guilt, no report was actually recorded and oral evidence of Sonawane [p.w.9] about admitting of the guilt by the accused to the police cannot be used. Kalaskar Investigating Officer [p.w.10] has given evidence that Sonawane [p.w.9] had contacted him when he was present on the spot to inform that accused had come to the police station. The F.I.R. shows that crime was registered at 14-15 hours on 9^th February 2009. No reason is given as to why the report given by accused no.1 was not recorded in the police station, if the accused had reached the police station at 1.30 p.m. However, this inaction on the part of police has not created reasonable doubt about the case of prosecution and it does not show that police did not act fairly.

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27] The panch witness Gangadhar [p.w.5] is examined by

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prosecution to prove that on the same day, the shirt of accused having blood stains was taken over by police. The panchanama is at Exh.43. His evidence in cross examination shows that he is always in contact with police and he had visited the police station atleast on 20 occasions prior to acting as a panch witness in the present case. His evidence shows that police visit to his shop and call him to act as panch witness. This evidence shows that Gangadhar is a stock witness. Kalaskar [p.w.10] has also given evidence on seizure of shirt which was on the person of accused no.1. Accused no.1 came to be arrested on the same day at about 3 p.m. The arrest panachanama at Exh.24 is admitted by defence. In view of these circumstances, not much can be inferred against the prosecution for using stock panch witnesses. This Court holds that the evidence is sufficient to prove that shirt of accused no.1 which was having blood stains was seized by police on the same day.

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28] Thakur [p.w.11] carrier constable is examined by prosecution to prove that the property taken over in the present case was sent to C.A. office in sealed condition on 12/9/2009. Office copy of covering letter is produced at Exh.53. The C.A. report at Exh.29 shows that blood of “O” group was detected on the shirt. The C.A. report shows that the blood group of accused no.1 and deceased was the same

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viz. “O” which is at Exh.29. Though in other cases, this circumstance could not have been given much importance, due to aforesaid circumstances, this Court holds that the existence of blood stains on the shirt of the accused no.1 corroborates the version of the complainant. The arrest panchanama does not show that accused no.1 had sustained any injury. He was working as a teacher. Further accused no.1 has not disputed his presence on the spot at the relevant time.

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29] The F.I.R. was immediately given by complainant. The evidence

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shows that there was no room for concoction. The incident took place near the house of accused and the evidence is sufficient to infer that there was no relative of complainant on parents’ side near her. Police made inquiry with her immediately after the incident. The falsehood from the evidence of complainant which is in the form of exaggeration made as against accused nos.2 and 3 is easily separable. This Court holds that aforesaid direct and circumstantial evidence is sufficient to prove that it is the accused no.1 who caused the injuries found on the dead body of Pranjal. Considering the act of the accused, his occupation, the age of deceased and the injuries actually caused to Pranjal, this Court holds that there was intention to finish Pranjal. Doctor has given evidence that these injuries were sufficient in

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ordinary course of nature to cause the death. So even if there was no intention of murder, the evidence is sufficient to infer that the accused intentionally caused the injuries and the injuries were sufficient in ordinary course of nature to cause the death. Thus, the offence committed by accused is of murder.

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30] For proving the offence of cruelty, as defined under Section 498-A of I.P.C., the prosecution is relying on the evidence of complainant, and the evidence of Vishnu Ghodake [p.w.6] maternal uncle. The complainant has deposed that the ill treatment was started to her after 7-8 months of the marriage when accused no.3 shifted to Revalgaon for stay. Complainant has deposed that for few months accused no.3 stayed with them and then, accused no.1 shifted residence of complainant to Andoor. She has deposed that accused no.3 was instigating accused no.1 to make demand of Rs.1 lakh and she was also instigating to give ill treatment to the complainant. She has deposed that due to instigation, accused no.1 was giving beating to her. She has deposed that from Andoor she was sent to the village of her parents as the demand of Rs.1 lakh was not met with. She has deposed that her maternal uncle [p.w.6] and others took her to matrimonial house and when they convinced the accused, she was accepted in the matrimonial house. She has deposed that even after

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this incident, ill treatment was given to her.

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31] Vishnu [p.w.6] has given evidence that he visited Andoor with father of complainant and other persons to convince the accused no.1 to behave well. He has deposed that he had learnt that there was ill treatment to the complainant from accused. He has given more evidence by saying that he had visited the house of accused 3 days prior to the incident of murder of Pranjal and on that occasion also, complainant had disclosed that there was ill treatment and accused were saying that they would kill her. There is no whisper about the visit of p.w.6 to the house of accused 3 days prior to the murder of Pranjal in the evidence of complainant.

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32] It is already observed that Devidas so called eye witness and Vishnu [p.w.6] hail from the same village. A sister of complainant is given in marriage to Vilas, brother of p.w.6. This Court has also observed that Devidas cannot be believed. Prosecution has avoided to examine the parents of the complainant to prove offence of cruelty. The nature of evidence given by Devidas and P.W.6, Vishnu show that P.W.6 took lead when the statements were given to police. In view of these circumstances, and his relation with the complainant, it is not possible to rely on his evidence.

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33] Vishnu [p.2.6] is exposed in the cross examination. He could not give the details like particulars of stay of complainant at various places like Andoor, Revalgaon or in the place of her parents. He could not state as to when first time demand was made by accused of Rs.1 lakh and as to when complainant was sent to parent’s house by accused when demand was not met with. There is possibility that only after murder of Pranjal, Vishnu [p.w.6] took interest and he helped the complainant.

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34] In cross examination, complainant has admitted that she was taken to Revalgaon after 7-8 days of the marriage. She has tried to say that at Revalgaon itself ill treatment was started to her due to instigation given by accused no.3. It does not look probable that accused no.1 who is educated person and who was working as a teacher, acted on the instigations given by his younger unmarried sister. The evidence of complainant in cross examination further shows that when she was staying in Andoor, she was allowed to visit village of her parents. She has however, stated that she lived there only for 1 day and then she returned to Andoor. Considering the period for which accused no.1 cohabited with the complainant and the period which must have been spent in the house of her parents by the

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complainant, it is difficult to believe that accused no.2 mother of Bhimrao had any opportunity to give ill treatment to the complainant. It also does not look probable that accused no.1 gave ill treatment due to instigation of accused no.2. There is no direct allegation against accused nos.2 and 3 that they were giving ill treatment, beating etc. to the complainant. The evidence of the two witnesses examined by the prosecution show that the reason for which the amount was required is not at all given. The defence has given suggestions that the complainant did not want to live in Andoor and so she was creating dispute.

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35] Some suggestions are given by defence to the complainant and to the maternal uncle that the complainant used to visit Kalyan to see her sister who is staying there and she used to stay there for many days. Suggestions are also given that due to this conduct of the complainant ,there was dispute between the complainant and the accused no.1. No witness has however, admitted suggestions given on that line.

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36] The evidence as a whole shows that only accused no.1 can be held responsible for whatever happened on 9^th February 2009 and for the dispute which was there prior to 9^th . Accused no.1 is educated

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person and his act shows that he had some grudge against the complainant. Prosecution has proved that accused no.1 virtually threw his daughter on the ground, stone and he used force for causing injuries to his daughter who was aged about 4 months. This conduct of the accused no.1 shows that there was really some dispute that gives corroboration to the complainant that accused no.1 was demanding Rs.1 lakh. So this Court holds that the evidence given on ill treatment as against accused no.1 can be safely relied upon. However, in view of the discussion already made, this Court holds that benefit of doubt needs to be given to accused nos.2 and 3. This Court has no hesitation to observe that in view of the aforesaid circumstances, accused nos. 2 and 3 had no voice in any matter of the house and it is accused no.1 who was controlling the things. For giving benefit of doubt to the appellants from Appeal No.403/10, said Appeal needs to be allowed. So the following order :

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[i] The Criminal Appeal No.403/10 is allowed. The judgment and order dated 13/9/2010 passed by the Additional Sessions Judge, Osmanabad in Sessions Case No.110/2009 convicting the appellants – (1) Komal W/o Shamrao Ghodake and (2) Sunita D/o Shamrao Ghodake, for an offence under Section 498-A r.w. 34 of I.P.C. and sentencing them to suffer rigorous imprisonment for two years and to pay a fine of Rs.10,000/- (Rs.Ten Thousand only) with default clause is quashed and set aside. The appellants – Kamal and Sunita are acquitted of the said charge. Fine amount, if paid, be refunded to the appellants. Their bail bonds stand cancelled.

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cria403-10.odt

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[ii] Criminal Appeal No.419/2010 stands dismissed.

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(T.V.NALAWADE,J.) (NARESH H.PATIL,J.)

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umg/cria403-10

Kamal Shamrao Ghodake and Anr. v. the State of Mah

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Kamal Shamrao Ghodake and Anr. v. the State of Mah

Case brief

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