1 Cri.Al.875.06 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 875 OF 2006 Narayan Namdeo Gande, Age: 25 Years, Occuption Agriculture, R/o Wadali, Taluka Gangapur, District Aurangabad. ... APPELLANT VERSUS State of Maharashtra ...RESPONDENT ..... Shri G.V.Wani, Advocate for the appellant (Appointed) Shri N.H.Borade, Assistant Public Prosecutor for respondent ..... CORAM : U.D. SALVI, J. DATED : 12 th SEPTEMBER, 2011. ORAL JUDGMENT : 1. This is an appeal preferred against the Judgment and Order of conviction under Section 307 of Indian Penal Code, 1860, passed by the learned 1st Ad-hoc Additional Sessions Judge, Aurangabad, on 05-12-2006. The Appellant/Accused was sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.2000/- in default of payment of fine, to suffer rigorous imprisonment for six more months, on his conviction as aforesaid. 2. It was the prosecution case that the complainant, Ashabai was married to appellant / accused some seven years prior to the 2 Cri.Al.875.06 date of lodging of the complaint. She cohabited with the appellant / accused at Village Wadali, Taluka Gangapur. The accused No. 2 Shantabai is mother-in-law of the complainant and she shared common house hold with the complainant and the appellant / accused No. 1 -Narayan Dande. According to the prosecution, the complainant was being ill-treated since her marriage on account of her black complexion, nevertheless the complainant gave birth to a daughter from appellant/ accused; and after three months of delivery of female child, she returned back to her matrimonial home, when the accused resumed ill-treatment to her. 3. According to the prosecution, the appellant/accused had demanded sexual intercourse and started quarreling with her on her rejection of the demand in the evening of 13.01.2006; and when she had gone out of the house for answering natures call, the appellant accused pushed the complainant in dry well nearby, at around about 3.00 hrs. in the night between 18th January 2006 and 19th January, 2006. The complainant become unconscious due to fall in the well and had sustained injuries. Local villagers took her out from the well and removed her to Government Hospital, Ghati situated at Aurangabad. She was medically examined and treated at the Government Hospital. ASI Borde recorded her statement at the hospital. A crime was registered against the appellant/accused 3 Cri.Al.875.06 and his mother Shantabai at Crime No. I-7/2006 under section 498-A, 307 read with section 34 of the Indian Penal Code 1960, at Shilegaon Police Station. 4. On completion of investigation, the charge-sheet was filed and the case was committed to the Court of Sessions in due course, and both appellants/accused were arraigned on the charges have been committed for the offence punishable under section 498-A and 307 read with section 34 of the Indian Penal Code 1860 before the Sessions Court. They denied their involvement in the crime. 5. The prosecution examined complainant P.W.1 Ashabai, local villager- P.W.2 Hukumchand Rajput, cousin of the complainant P.W.3- Subhash Nage, mother of the complainant P.W.4 Drupadabai Nage, ASI P.W.5 -Premnath Borde, PSO-P.W.6 Kashinath Rajguru, Investigating Officer-P.W.7 Sanjay Lohakare and Medical Officer P.W.8-Dr. Ravi Linganwad. 6. Learned trial Court acquitted the accused i.e. appellant and his mother of the offence punishable under section 498-A read with section 34 of the Indian Penal Code and recorded conviction of the appellant/accused under section 307 of the Indian Penal Code, 1860. The accused No.2, mother of the appellant-accused was also acquitted of the offence punishable under section 307 read 4 Cri.Al.875.06 with section 34 of the Indian Penal Code, 1860. The State has no grievance about the acquittal of the appellant/accused as well as his mother as recorded by the trial Court. Only question, therefore, before this Court is regarding worth of conviction of the applicant/accused under section 307 of the Indian Penal Code, 1860. 7. Considering the relations between the parties and the facts and circumstances of the present case a notice was issued to the victim Ashabai to explore happy end in the present case. In response to this notice, the prosecution has tendered statements of P.W.1 complainant /victim Ashabai W/o Narayan Gande and her cousin Ramesh Gangadhar Nage. It appears that the relations between the complainant and the appellant/accused are strained and there is hardly any possibility of restoration of conjugal relation. The statements are kept on record and marked as Exhibit “X” and the appeal proceeds. 8. Learned Advocate for the appellant/accused did not dispute the fact of fall of P.W.1 Ashabai, complainant in the well in between the night of 18th January, 2006 to 19th January, 2006 and her subsequent removal to the Government Hospital, Ghati at Aurangabad. Only material question, which survives is as regards 5 Cri.Al.875.06 the manner and cause for fall of P.W.1 Ashabai in the well. Only direct evidence on this point is testimony of P.W.1 Ashabai. 9. P.W.1 Ashabai deposed that after three months of delivery of female child, she returned back to her matrimonial home at Wadali and on the next day there was quarrel over her refusal to sleep with accused No.1-Appellant. She added that, she had refused to sleep with her husband-appellant-accused saying that she was having some post natal problem, as she had undergone surgery at the time of delivery and she slept in the house separately. She further deposed that she went out of the house for toilet early in the morning and when she was returning, her husband- appellant/accused pushed her inside the well and she became unconscious when she fell in the well without water. She further deposed that she had sustained injuries on head, hands and legs and when she regained consciousness in the hospital at Aurangabad, she lodged oral complaint (Exh.27). 10. In her cross-examination, she disclosed certain material facts. She admitted that when appellant-accused used to go early in the morning to the residence of P.W.1 Hukumchand Rajput situated at about 50 feet from their residence for milking the cattle and her husband appellant/accused did not go to the house of P.W. 2 Hukumchand Rajput. She further disclosed in her cross- 6 Cri.Al.875.06 examination that the well is situated at a distance of 25 to 30 feet from their land, it had no parapet wall. She denied the suggestion that she fell in the well by accident due to failure of judgment about well. 11. The evidence of P.W.8 Dr.Ravi Linganwad corroborates the fact of fall of P.W.1 Ashabai in the well by medical evidence. He deposed that on examination of P.W.1 Ashabai, he noticed six injuries on her person. (i) Contused lacerated wound over forehead, 10 cms X 1 cms, (ii) Contused Lacerated wound over frontal bone, 6 cm X 2 cms in size. (iii) Contused lacerated wound over upper lip 3 cms X 2 cms in size, (iv) Contused lacerated wound over nosal bridge 1cm X 1 cm in size. (v) Abrasion over left forearm, 1cm X 1 cm in size and (vi) Traumatic injury over upper jaw. 7 Cri.Al.875.06 12. According to him, such injuries are possible due to fall in the well. Scene of offence panchnama (Exh.21), which is undisputed piece of evidence, gives dimensions and situation of the well. One fact which can be clearly seen from the evidence is that the appellant/accused had not taken/dragged P.W.1 Ashabai to the well and then pushed her in the well. On the contrary, it can be clearly seen from the evidence that P.W.1 Ashabai while returning back from toilet fell in the well, which was situate on back of her matrimonial home. The evidence also reveals that there always used to be dark around the well and there was no parapet wall to the well. Possibility of accidental fall in the well therefore cannot be ruled out from evidence on record. Except, a lone and bald averment of P.W.1 Ashabai that her husband pushed her inside the well, there is nothing in the evidence to throw light to show from where the appellant/accused came to the spot and how the appellant/accused could be seen by P.W.1 Ashabai in dark. P.W.1 Ashabai has not been believed by the learned trial Court as to her version regarding her illtreatment at the hands of her husband-appellant/accused. This fact demonstrates that P.W.1 Ashabai is not a wholly reliable witness and as such needs corroboration on material aspects. However, as discussed above there is lack of corroboration in evidence to the testimony of P.W.1 Ashabai on material aspect. 8 Cri.Al.875.06 13. On this back ground, the appellant/accused needs to be given the benefit of reasonable doubt. The appeal is allowed. The appellant accused Narayan Namdeo Gande, is acquitted of the offence punishable under section 307 of the Indian Penal Code and he is ordered to be set at liberty unless required in any other case. Learned Advocate Mr. Wani made sincere efforts to assist the Court in conducting the appeal. Learned counsel appointed on behalf of the appellant be paid fees quantified at Rs.5000/-(Rupees Five Thousand). Sd/- ( U.D. SALVI, J. ) MTK