Allowed

Anand Umashankar Mishra v. the State of Maharashtra

Bombay HC17 Jul 2014APEAL/1162/2008

Case brief

AI extract

What is this about?

High Court Criminal Bench acquitted appellant of abetment to suicide and attempt to commit suicide. Court quashed conviction due to uncorroborated, contradictory witness testimony insufficient to prove conspiracy and lack of direct evidence for suicide attempt.

What did the court decide?

Judgment and order dated 28th October 2002 setting aside conviction and acquitting accused from charges u/s 306 and 309 IPC.

Anand Umashankar Mishra Vs the State of Maharashtra — Cheating and Forgery | Bombay HC (2014)

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Appeal1162_2008

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Vidya amin

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 1162 OF 2008

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Anand Umashankar Mishra vs.	…	Appellant
The State of Maharashtra	…	Respondent

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Mr. Swapnil Ovalekar, Advocate appointed for the appellant. Ms. Alpa Javeri, APP for the State.

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CORAM : MRS. MRIDULA BHATKAR, J. DATE : 17^th July, 2014.

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ORAL JUDGEMENT

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This Appeal is directed against the judgment and order dated 28^th October, 2002 passed by the Additional Sessions Judge, Greater Bombay, thereby convicting the appellant for the offence punishable under section 306 of the Indian Penal Code and awarding sentence of R.I. for 10 years and to pay fine of Rs.10,000/- i/d. to suffer R.I. for 6 months. He is also convicted for the offence punishable under section 309 of the Indian Penal Code and is sentenced to suffer S.I. for one year and to pay fine of Rs.5,000/- and i/d. to suffer further S.I. for two months.

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At the outset, it is necessary to mention that after judgment of conviction, the appellant surrendered himself on 3^rd November, 2002 and he was imprisoned in Kalamba, Kolhapur Central Prison. He has undergone a full term sentence and with remission, he was released on

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20^th October, 2010 from the prison. During his stay in prison, he sent one application, however it is in torn condition and no date is found on the said application, in which he has requested that he had completed more than 5 years of his imprisonment. He did not prefer any criminal appeal against the judgment and order of the said Court, as he was not in a position to avail the service of any lawyer and moreover, he did not want to challenge the said judgment which he felt was just and fair, therefore, he prayed that as he is poor and could not pay the fine of Rs.15,000/-, that amount of fine should be reduced which he can afford to pay. Thereafter he filed another application on 11^th March, 2008 through prison where he has requested the Hon'ble Chief Justice of Bombay High Court to appoint advocate from Legal Aid on his behalf in the matter. Thereafter the department placed this matter before the Single Judge of this Court, who by an order dated 16^th April, 2009 condoned the delay of 5 years in lodging the appeal against the order of conviction dated 28^th October, 2002 and passed an order of appointment of an advocate to defend him and then admitted the Appeal. The said letter of the appellant was considered as an Appeal. It appears that due to huge pendency of the matters and paucity of time, this Appeal could not be heard till today and on 20^th October, 2010, the appellant completed his full term of sentence and was released.

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On 16^th July, 2014, Mr. Swapnil Ovalekar was appointed as amicus curiae and the matter was heard with the assistance of Mr. Ovalekar and APP.

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It is the case of the prosecution that deceased Ranjana was married to PW-2 Mahesh Laljiprasad Agarwal. Out of the wedlock, they were having three children. The appellant knew Ranjana. On 12^th July, 1991 the appellant/accused took her to Megha Hospital, Malad, as she has consumed some poisonous substance. She was treated there and was discharged on 13^th July, 1991. Thereafter on 14^th July, 1991 again she consumed poisonous substance and was taken to Coopar Hospital and was declared dead. Her body was sent to post-mortem, which was conducted by Dr. Baban Sripati Shinde on 15^th July, 1991 and he opined that the cause of her death was due to ingestion of Baygon poisoning and brain haemorrhage. The police of Kurar Police Station started investigating the matter. They conducted spot panchnama. At the time of panchnama, they found a suicide note (Exhibit 14) written by the deceased holding appellant responsible for her death, as he used to come at odd hours of night and threaten her. He used to attempt to outrage her modesty and demand money. Therefore, she committed suicide. On the same day i.e. 14^th July, 1991, the appellant also consumed ingested Baygon poison in large quantity and was brought to Mega Hospital. As his condition was very serious,

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he was transferred to Cooper Hospital. The offence was registered against him under section 309 of the Indian Penal Code. The police recorded the statements of husband, relatives and neighbours. After completion of the investigation, Investigating Officer filed charge sheet and the offence being under sections 306 and 309, the case was committed to the Sessions. The learned Sessions Judge framed charge. The appellant pleaded not guilty and the trial concluded in convicting the appellant/accused on both the counts.

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The learned amicus curiae for the appellant has submitted that after going through the evidence, it appears that the appellant was innocent and he is not responsible for the death of deceased Ranjana. He submitted that whatever mentioned in the suicide note (Exhibit 14) even if accepted as true, it does not show that the appellant has abated in committing suicide.

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Learned APP supported the judgment of the trial Court. While arguing on the judgment of the trial Court, she has fairly taken me to the specific evidence of PW-2 Mahesh Agarwal/husband of the deceased. In the present case, the evidence of the husband of deceased is important, as he is the key witness of the incidents taken place on 11^th , 12^th , 13^th and 14^th July, 1991. He was the only one who is the narrator of all the incidents. There is no corroboration to his evidence.

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His evidence raised number of questions in the mind. He has stated that he saw the appellant for the first time on 12^th July, 1991, however, he has also stated in the evidence that he met him on 11^th July, 1991. When he met him for the first time, at that time, the appellant was threatening his wife and demanding money from him. The husband of the deceased did not do anything but after the appellant went from the spot, he asked his wife about the demand of money. According to his deposition, the deceased answered that she also did not know why appellant was demanding money from her and earlier also, he contacted her and demanded money. No complaint was lodged on that day, though the explanation given by the deceased in paragraph 11 of his evidence of not going to the police on the same day and lodging FIR against the appellant is found absolutely unacceptable.

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As per the case of the prosecution, on 12^th July, 1991 she consumed poisonous substance and was shifted to Mega Hospital. Exhibit 32 is a medical case papers of Mega Hospital which is proved by PW-6 Dr. Bharat Meghaji Mamania and there is a entry which is disclosed by the doctor that the lady was brought to the hospital and attended by the appellant. His signature is appearing on Exhibit 32. PW-2/Husband in his evidence has stated that he did not know who took his wife to Mega Hospital for treatment. She was treated on that day in the hospital and on 13^th July, 1991 she was discharged. She was

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brought home and whole day she was at home. However, as per evidence of PW-2 Mahesh Agarwal, the appellant came to their house. He again demanded money from the lady and threatened her that he would not excuse her and that she would face the consequence. PW-2 further stated on oath that while going away, the appellant took the papers of prescription of the doctor of his wife and then went away. On 14^th July, 1991 he has deposed that when he went out to purchase some bakery product and on his return, he found his wife lying on the floor and then she was shifted to Cooper Hospital by him. In the said hospital she was declared dead. Her post-mortem was performed by Dr. Baban Shinde on 15^th July, 1991, which is marked as Exhibit 36 disclosing that the cause of her death was due to ingested baygon poison and brain hemorrhage. He has further deposed that due to consumption of such poisonous substance, brain hemorrhage would have been caused.

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Evidence of PW-2/husband does not inspire confidence as to what he has stated were the true facts. When his wife was threatened by unknown persons on 11^th July why he did not questioned that person. When his wife was shifted to the hospital, he did not ask her what was the cause of consumption of poisonous substance and on 13^th July when she was discharged from the hospital, he did not try to find out the reason of her consumption of poisonous substance. The most

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unacceptable evidence is that on 13^th July the appellant arrived in their house and demanded money in his presence from his wife, who was serious and admitted in the hospital a day before, then why he still kept mum and as per his evidence, the appellant took away the papers of the prescription, why he didn't lodge any complaint against him though there was earlier instance of demanding money without any reason. The learned Sessions Judge should have discarded this evidence in toto. The learned Sessions Judge has erred in accepting this evidence as gospel truth and convicting the appellant under section 306. another glaring factor which is detrimental to the prosecution is delay in lodging the FIR. She lost her life on 14^th July, 1991, however, the FIR was lodged on 25^th July, 1991 by the husband. As per the evidence of PW-2/husband it appears that the suicide note was found on 14^th July, 1991 and the seizure panchnama (Exhibit 18) of the same was drawn by the Investigating officer in presence of two panchas.

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Exhibit 14 is the suicide note in which name of Ranjana Agarwal is mentioned. It is written on one page of notebook by a pencil. It is mentioned that name of the person which is mentioned in her suicide note i.e. Anand Mishra is responsible for her death. The address of Anand Mishra is also mentioned. She mentioned that the appellant used to knock the door at odd hours of 2 'O Clock at night and he used to attempt to outrage her modesty and demand money. It is to be

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noted that Ranjana was mother of three children. The reasons given in the suicide note appears very weard. She has mentioned the word “Hum” indicating plural, that means the appellant used to knock the door and they used to wake up. It shows that she, her children and husband also. If at all he used to go at odd hours in the night, then where the husband used to be and why Ranjana did not tell anything about attempt of the accused outraging her modesty to her husband, as according to the evidence of husband, the relations between the husband and wife were good. There are number of infirmities and contradictions in the evidence of the star witness and on whose evidence the conviction is passed. The appreciation of evidence is entirely erroneous and based on wrong proposition that the accused is guilty of the offence and finally the same conclusion is drawn. Under such circumstances, judgment of conviction is hereby quashed and set aside.

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The appellant is also convicted for the offence punishable under section 309, i.e., attempt to commit suicide. The evidence of PW-6 Dr. Bharat Meghaji Mamania who has attended the appellant in Mega Hospital is material. He was shifted to the hospital at around 5.45 p.m. by his friend. The doctor has deposed that his condition was serious and therefore he was transferred to Cooper Hospital at around 6.15 p.m. The notes and observations of Dr. Bharat Mamania is at Exhibit

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He has informed the police on phone about the admission of appellant in the Mega Hospital. Thus, he attended the appellant first in time and he has stated that he gave him primary treatment.

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In order to prove this offence, prosecution has relied on evidence of PW-8 P.I. Rajendra Kisanrao Chikhale, who has stated that during the course of investigation, it was transpired that appellant attempted to commit suicide after the death of Ranjana on 14^th July, 1991. Besides this, no other evidence is produced by the prosecution to prove the offence of attempt of commit suicide . The evidence of P.I. Chikale cannot be accepted for want of specific evidence as to how it was transpired. The police did not record statement of appellant's friend who has taken him to the hospital and who was the first to attend him. In the statement of accused under section 313 of Cr. P.C., while answering to the questions on this point, i.e. Q. Nos. 36 to 39, the appellant did not accept that he had consumedsome poisonous substance with intention to commit suicide but defence was taken that by mistake, the accused consumed poison. In the absence of any other specific evidence, the defence of the appellant is probable. Hence, the judgment is quashed and set aside.

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It is to be noted that it is most unfortunate case wherein the Appeal is heard and the appellant is found not guilty and acquitted

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from the offence, for which he had already undergone the entire sentence. The Registrar (Judicial) is directed to send the copy of this judgment to the appellant and also to the concerned police station and Sr. P.I. of the police station is directed to send a copy of the judgment to the appellant, if his address is found.

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This Appeal is a tragic and glaring example of how the most used and known comment, i.e., “Justice delayed is Justice denied” is apt and true. The appellant is convicted in the year 2002 for the offence of abatement to commit suicide for a period of 10 years. He has undergone the full term of his sentence and was released from jail in the year 2008 and in 2014 this Appeal is heard to clear the stigma of conviction on him. He is held not guilty and it's a deep agony that our judicial system has no answer that how his liberty and precious 8 years can be restored and compensated to him.

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Appeal is allowed. The judgment and order of conviction dated 28^th October, 2002 passed by the Sessions Judge in Sessions Case No. 536 of 1992 is hereby set aside and the accused is acquitted from the charges under sections 306 and 309 of the Indian Penal Code

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(MRS. MRIDULA BHATKAR, J.)

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Anand Umashankar Mishra v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Anand Umashankar Mishra v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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