This criminal revision application challenges the acquittal of accused persons in a Section 306, 498-A IPC case. The High Court upheld the acquittal, finding the prosecution failed to prove a direct link between alleged cruelty and the deceased's suicide.
Revision application dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.90 OF 2005
Shivaji Kadu Chinchole,
Age-53 years, Occu:Service,
R/o-Arunodaya Colony, Chopda,
Tq-Chopda, Dist-Jalgaon.
...APPLICANT
(Orig. Complainant)
VERSUS
1) Champalal Bhagwan Borse, Age-26 years, Occu:Service,2) Bhagwan Bhoju Borse, Age-59 years, Occu:Agri.,3) Deepak Bhagwan Borse, Age-24 years, Occu:Agri.,4) Sou. Gangubai W/o Bhagwan Borse,
Age-54 years, Occu:Agri.,
All are resident of At Post-Gorgawale,
Tq-Chopda, Dist-Jalgaon.
(Ori. Accused)
5) The State of Maharashtra,
Through PSI Police Station,
Adawad, Tq-Chopda,
Dist-Jalgaon.
...RESPONDENTS
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...
Mr. Vijay B. Patil Advocate for Applicant.
Mrs. A.S. Jadhav Advocate appointed for
Respondent Nos.1 to 4, Absent.
Mr. S.Y. Mahajan, A.P.P. for Respondent No.5.
...
CORAM: V.M. DESHPANDE, J.
DATE : 19TH MARCH, 2019
ORAL JUDGMENT :
1.By this Revision, the complainant,
Shivaji, father of deceased Rekha is challenging
the Judgment and order of acquittal passed by
Ad-hoc Assistant Sessions Judge, Amalner on 21st
December, 2004, in Sessions Case No.35 of 2001. By
the said Judgment and order of acquittal, the
Court below acquitted Respondent Nos.1 to 4 for
the offence punishable under Section 498-A, 304-B
of the Indian Penal Code, and even alternatively
under Section 306 of the Indian Penal Code.
2.Against the acquittal, Respondent No.5 –
the State of Maharashtra chose not to prefer any
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appeal questioning the correctness of the Judgment
of acquittal.
3.I have heard Shri P.B. Patil, the learned
counsel for the Applicant and Shri S.Y. Mahajan,
the learned Additional Public Prosecutor for
Respondent No.5 – State. The learned counsel for
Respondent Nos.1 to 4 appointed by this Court vide
order dated 7th February, 2019 (CORAM: V.K. JADHAV,
J.), chose not to remain present before the Court.
Consequently, Respondent Nos.1 to 4 are not
represented before this Court during the course of
hearing of this Revision.
4.By now, the law is well crystallized in
respect of the powers of the appellate Court
exercising the appellate powers to interfere with
the Judgment and order of acquittal passed by the
trial Court. Merely because the another view is
possible, the appellate Court does not substitute
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its own view in place of the view taken by the
trial Court, unless it is observed by the
appellate Court that the approach of the learned
Judge of the Court below is perverse one and/or
the admissible evidence is not considered by the
Court below. Insofar as the powers of the
revisional Court are concerned, the scope is much
narrower than the appellate powers. Unless and
until glaring mistakes are noticed in the impugned
order and/or error apparent on the face of record
is noticed, the revisional Court will not step in
while upsetting the order passed by the Court
below.
5.Keeping the aforesaid principles in mind,
let us scrutinize the case of the prosecution, as
to whether this Court can exercise revisional
jurisdiction to upset the Judgment and order of
acquittal passed by the Court below.
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6.PW-7 Dagekha Tadavi, the ASI was attached
with police station Adawad in the year 2001. He
was discharging his duties at the said police
station from 20.00 hours of 13th May, 2001 till
8.00 hours of 14th May, 2001. During his duty
period, Shivaji Chinchole (PW-1) came to police
station and lodged his oral report. PW-7 Dagekha
recorded the complaint (Exhibit-46) as per the
narration of Shivaji. He registered the offence
vide C.R. No.22 of 2001 for the offence punishable
under Section 306, 498-A, 323, 504, 506 read with
34 of the Indian Penal Code. He handed over the
investigation to API Deshmukh, who conducted part
of the investigation. The part of the
investigation was done by PW-8 Ashok Sadare, and
after the completion of the investigation, he
presented final report under Section 173 of the
Code of Criminal Procedure, before the learned
jurisdictional Magistrate.
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7.The learned jurisdictional Magistrate
found that the offence is exclusively triable by
the Court of Sessions, therefore, he committed the
case to the Court of Sessions. After the case was
committed to the Sessions Court, it was registered
as Sessions Case No.35 of 2001 and it was made
over to the file of Ad-hoc Assistant Sessions
Judge, Amalner. The said learned Judge framed the
charge against Respondent Nos.1 to 4 herein for
the offence punishable under Section 498-A, 304-B
of the Indian Penal Code, and in the alternative,
he also framed charge under Section 306 of the
Indian Penal Code. The accused persons abjured the
guilt and prayed for their trial. In order to
bring home the guilt of the accused persons, the
prosecution examined in all eight witnesses, and
also relied on various documents duly proved
during the course of the trial. After the full-
fledged trial, the Court below passed the impugned
Judgment.
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8.As observed in the opening paragraphs of
this Judgment, though the accused persons were
acquitted, State chose not to prefer any appeal
and it is the complainant who has preferred the
present Revision.
9.During the course of the trial, one of
the defence of the accused persons was that
deceased Rekha met with accidental death.
According to them, when she was in agricultural
field, and when she was spraying insecticides, she
felt giddiness, therefore she was taken by
accused Nos.2 to 4 to the house and thereafter she
was taken to the hospital and gave some
preliminary treatment, however, before she was
taken to hospital at Chopda, she expired. No
defence witness was examined by the accused
persons.
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10.The learned Judge of the Court below
disbelieved the theory of accidental death and has
recorded specific finding that death of Rekha, on
12th October, 2001, was suicidal in nature.
11.The learned counsel for the Applicant
submits that since the defence of Respondent Nos.1
to 4 was disallowed, therefore, the Court below
ought to have convicted the accused persons for
abetting Rekha to commit suicide. In my view, such
submission cannot be accepted. It is open for the
accused persons to take as many defences as they
want. However, the burden is firmly rest upon the
shoulder of the prosecution to prove its case
beyond reasonable doubt against the accused
persons. Therefore, it will have to be seen by the
Court, as to whether the prosecution has proved
its case beyond reasonable doubt, that due to
cruelty and/or there was any abetment on the part
of the accused persons to deceased Rekha, due to
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which she has taken extreme step of her life.
12.Dr. Vijay Pawar (PW-6) has conducted
autopsy over the dead body of Rekha. He has proved
post-mortem notes (Exhibit-54). In his opinion,
death was due to “Cardio-respiratory arrest due to
Organophosphorus like compound poisoning”. He
preserved the Viscera. The C.A. Report is at
Exhibit-55.Itshowsthattracesof
Organophosphorus insecticide were found in the
Visera of the deceased. In that view of the
matter, there cannot be any doubt in mind that the
deceased died unnatural death.
13.Though it was suggested on the part of
the accused persons that death is due to accident,
the said was not accepted by the trial Court, and
those findings are not challenged by the accused
persons. Therefore, it is clear that the findings
recorded by the Court below that deceased
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committed suicide, has attended its finality.
14.Now, the question is, whether the
prosecution has proved that the accused have
abetted the said act on the part of the deceased
to commit suicide.
15.According to the prosecution case, there
was ill-treatment at the hands of the accused
persons on the point of demand to deceased Rekha,
due to which she has committed suicide.
16.The marriage of deceased was performed
with accused No.1 – Champalal on 29th January, 2001
and Rekha met with unnatural death on 12th May,
2001. The learned counsel for the Applicant would
submit that there is a legal presumption against
the accused persons, in view of provisions of
Section 113-B of the Indian Evidence Act, in view
of the fact that within a span of seven years
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there occurred unnatural death of Rekha, from her
marriage. The law on this issue is well
crystallized. Merely because the death is caused
within a period of seven years from the date of
marriage, ipso facto the said statutory
presumption under Section 113-B of the Indian
Evidence Act does not get activated. To press into
service the said presumption, it is bounden duty
of the prosecution to prove that deceased was
subjected to cruelty. Only on successfully showing
that aspect, the prosecution can place reliance on
the said statutory presumption.
17.To prove the aspect of cruelty, the
prosecution has examined three witnesses, they are
Shivaji Chinchore (PW-1), father of the deceased,
Latabai Chinchore (PW-2), mother of the deceased
and Pramilabai Patil (PW-3), neighbour of Latabai.
18.The First Information Report is not the
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substantive piece of evidence. It can be used
either for corroboration or contradiction of its
maker.
19.Evidence of Shivaji and Latabai would
show that, after marriage on 29th January, 2001,
deceased started residing at her matrimonial place
situated at village Gorgawale. As per the evidence
of Shivaji, after her marriage on two occasions
Rekha visited her parental house. Evidence of
Shivaji would show that during her visit, Rekha
disclosed to him that she was ill-treated
physically and mentally by the accused persons on
account of household work. His evidence is
conspicuously silent that Rekha was ill-treated on
account of any type of demand. However, Latabai,
the mother of deceased Rekha gives altogether
different account from the witness box. She would
state that when Rekha visited her parental house,
she disclosed that she is being ill-treated on the
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demand of her ornaments. Thus, there is variance
on the part of these two important prosecution
witnesses on the point of reason for giving ill-
treatment to Rekha.
20.Even according to Shivaji, though certain
ornaments were offered to deceased at the time of
her marriage, those ornaments were kept in her
parental house only. Further, though according to
his evidence, it is stated to him by deceased that
accused were demanding her ornaments, he is not
stating that while for such demand of those
ornaments or for demanding those ornaments, she
was subjected to cruelty at the hands of the
accused persons. Though, it is claimed by Shivaji
in his examination-in-chief that Rekha disclosed
that Champalal, her husband, demanded watch and
clothes and accordingly he paid Rs.1500/- cash for
purchasing a watch and clothes, in his cross-
examination, he was required to admit that in the
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region of Khandesh, there is tradition that on the
day of Akshay Tritiya, the son-in-law is offered
clothes and certain gift articles, and on the day
of Akshay Tritiya when Champalal was invited, an
amount of Rs.1500/- was given to purchase clothes
and the watch. In view of this, it does not lie in
the prosecution case that, there was any demand of
clothes and watch, because those were offered by
way of tradition to Champalal.
21.Though Latabai has also stated that her
husband has given Rs.1500/- to Champalal, in my
view, for the reasons stated herein above, her
evidence to that effect is of no use for the
prosecution.
22.One independent witness is examined by
the prosecution and she is Pramilabai Patil
(PW-3). She is mother of Kavita, friend of
deceased Rekha. According to said witness,
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deceased Rekha and her daughter Kavita came to
Chopda for preparation of second year B.A.
examination. The said examination was conducted in
April, 2001. According to Pramilabai's evidence,
when Rekha was visiting her house, that time, on
her inquiry, she disclosed that her in-laws ill-
treated her. Her evidence is totally silent that
on account of any demand, Rekha was subjected to
cruelty at the hands of the accused persons.
23.The learned Judge of the trial Court, in
my view, has correctly appreciated the evidence
brought on record by the prosecution. In my view,
no fault can be found with the findings recorded
by the Court below on the aforesaid evaluation of
the prosecution case, that the Court below has
committed any mistake in law to record the finding
that the prosecution has failed to prove ill-
treatment at the behest of the accused persons.
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24.Further, in the cross-examination, it is
admitted by Shivaji that the deceased was staying
with him from 30th March, 2001 to 28th April, 2001.
The commission of suicide is on 12th May, 2001. The
entire prosecution case is totally silent that
after 28thApril, 2001 till the time Rekha
committed suicide, there was any type of ill-
treatment on any account. Therefore, there is no
live link in between the alleged ill-treatment,
with the act of commission of suicide.
25.Since the prosecution has not adduced any
evidence worth to say that it shows that there was
any act or omission on the part of the accused
persons suggestive of abetment to the deceased to
commit suicide, in the limited revisional
jurisdiction, it will not be open for this Court
to upset the well considered view taken by the
learned Judge of the trial Court on the basis of
available evidence on record. Consequently, the
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Revision fails and accordingly it is dismissed.
26.Since the counsel appointed to represent
Respondent Nos.1 to 4 did not appear before this
Court, the counsel is not entitled for any fees
from the Legal Aid Committee.
asb/MAR19
3 issues framed by the court
Whether the prosecution proved cruelty and abetment of suicide under Section 306 IPC within seven years of marriage triggering Section 113-B of the Evidence Act.
Whether there was a live link between alleged ill-treatment by the accused and the death of the deceased.
Whether the trial court erred in acquitting the accused persons by failing to consider the prosecution case.
3 provisions across 2 enactments
Shivaji Kadu Chinchole
Champalal Bhagwan Borse
Bhagwan Bhoju Borse
Deepak Bhagwan Borse
Gangubai
The State of Maharashtra
V.M. Deshpande
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court