Cr.Appeal/204/1994 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.204 OF 1994 The State of Maharashtra ..Appellant Versus Sow.Kamlabai Babusingh Thakur, age 40 years, Occupation Household, R/o Lohargalli, Nanded ..Respondent ... Shri V.D.Godbharale, APP for the appellant. None for respondent. ... CORAM : A.H.JOSHI & A.R.JOSHI, JJ. Reserved on : September 21, 2011 Pronounced on : September 26, 2011 JUDGMENT : (Per A.R.JOSHI, J.) :- 1. Heard rival submissions, on this Criminal Appeal, preferred by the State of Maharashtra, challenging the judgment and order of acquittal passed by the learned Additional Sessions Judge, Nanded, on 22.2.1994, in Sessions Case No.77 of 1991. By the impugned judgment and order, present respondent/original accused was acquitted of the offences punishable under Sections 302, 498-A of the Indian Penal Code ("IPC" for brevity). Cr.Appeal/204/1994 2 2. For the purpose of deciding the present appeal against acquittal, suffice it to say, the case as un-folded before the Sessions Court in the nut-shell, is as under:- Victim Varsha was married with one Omsingh about eleven months prior to the incident of death. After marriage, she started residing in the joint family, consisting of her husband, her mother-in-law (present respondent) and young daughter of Kamlabai. Said joint family was residing in a building owned by her husband, at Lohargalli, near Ganesh Talkies, Nanded. Stay of the family members was on second and third floors of the building. 3. Apparently, victim Varsha was of a fair complexion, whereas, her husband was not fair looking. Allegedly, there was harassment and ill- treatment meted out to victim Varsha, who was hardly 19 years of age, at the time of marriage. Such harassment and demands were from her mother-in-law i.e. present respondent/accused. Apparently, there were strained relations between victim Varsha and her husband and allegedly, victim Varsha was not Cr.Appeal/204/1994 3 allowed to meet her parents frequently. 4. The alleged incident of death of victim Varsha by strangulation, occurred on 19.11.1990 at her matrimonial house. It happened in the room on the third floor of the house. Prior to few hours of this incident, PW 3 Jayashri and PW 4 Tulajabai had been to the house of victim Varsha for inviting her for some religious function. However, there was some quarrel and exchange of hot words and present respondent/accused was not willing to send victim Varsha to her parents place for attending the religious function. After PW 3 Jayashri and PW 4 Tulajabai left the spot, the incident of victim Varsha found dead in the third floor room occurred. Intimation was given to the parents of victim Varsha by one Dharamsingh and as such, mother of victim Varsha reached at the spot. Intimation was given to father of victim Varsha. He also came at the spot and noticed some injuries and abrasions on the neck and cheek of the victim and that one earring of victim Varsha was missing. Suspecting the foul play and murder of his daughter, father of victim Varsha (PW 1 Sonusingh) lodged a complaint with the police. Cr.Appeal/204/1994 4 5. While dealing with the present appeal against the acquittal, we have gone through the substantive evidence of main prosecution witnesses i.e. PW 1 Sonusingh, PW 2 Pushpabai, PW 3 Jayashri and PW 4 Tuljabai. PW 1 Sonusingh is first informant and father of victim Varsha. PW 2 Pushpabai is mother of victim Varsha and PW 3 Jayashri and PW 4 Tuljabai are the relatives of victim Varsha. Apart from their evidence, other three witnesses were also examined and they are PW 1/A Dr.Digambar Joshi, who conducted the post mortem. PW 5 Sk.Jani, Police Photographer, who took various photographs and PW 6 Pandharinath Kedar, Investigating Officer. 6. The learned Additional Sessions Judge has critically discussed the substantive evidence of prosecution witnesses Nos.1 to 4, who are the main witnesses. We have seen various contradictions and omissions in the substantive evidence of PW 1, PW 2 and PW 3. We have also seen that there are certain admissions given by these witnesses and also PW 4 Tuljabai, which are mitigating to the case of Cr.Appeal/204/1994 5 prosecution, thus, prompting the learned Additional Sessions Judge to hold that the prosecution has failed to establish the case against respondent/ accused. The factual position, which is listed herein below, creates a doubt, whether it is a case of homicide and that too at the hands of present respondent/accused. 7. Prior to discussing the points as mentioned above, certain factual position is narrated as under:- (1) Initially, the first information report was lodged against the present respondent/accused Kamlabai, mother-in-law of victim Varsha and original accused No.2 Aarati, minor daughter of Kamlabai. Said Aarati, being minor, her case was separated and was taken before the Juvenile Court and as such in the Sessions Case No.77 of 1991 only present respondent was tried. (2) Initially charges framed against both the accused were for the offences punishable under Sections 306, 498-A read with 34 of IPC. After examination of PW 1 Sonusingh (complainant), an application Cr.Appeal/204/1994 6 was moved by the prosecution for substitution of Section 306 by Section 302 of IPC, alleging that it is a case of murder and not abettment to commit suicide. Said application was rejected by the learned Additional Sessions Judge. Said order was challenged before this Court and the matter was remanded back to the Court of Sessions to frame the appropriate charge and to dispose of the matter within six months. On this background, the matter was disposed of and ended in acquittal, as mentioned above 8. The points, which weighed with the learned Additional Sessions Judge for acquitting the respondent/accused, as mentioned earlier, are as under:- (1) During cross-examination of PW 1 complainant, it was brought on record that his relations with the husband of victim Varsha were good, inasmuch as husband Omsingh had stood surety to the loan obtained by PW 1 Sonusingh, so also, he was attesting witness to the sale deed executed by PW 1 Sonusingh. (2) Within 7-8 days of the incident, ornaments of victim Varsha were given back Cr.Appeal/204/1994 7 to PW 1 Sonusingh by the husband of the victim and this fact was accepted by PW 1. A suggestion was given to PW 1 that he was asking for ornaments immediately on the date of the incident, however, he was asked to wait and this infuriated him to lodge a false complaint. (3) Admittedly, sister of Omsingh had passed away a week prior to the incident and as such it was the cause for respondent/accused not to send victim Varsha to her parents to attend the religious function. (4) Material omissions were brought on record from the evidence of PW 1- complainant, as to missing of one earring and one anklet of victim Varsha and finding injuries around the neck and cheek of victim Varsha. These omissions were proved through the Investigating Officer, as PW 1 Sonusingh had not stated anything to that effect while giving his complaint to the police. (5) In the post mortem report, there is no such specific mention as to nail marks on the neck of victim Varsha and this has been admitted by Medial Officer Dr.Joshi - PW 1/A. Cr.Appeal/204/1994 8 (6) An omission was brought on record from the substantive evidence of PW 2 - mother of victim as to she telling her husband about demand of Rs.25,000/- or Rs. 10,000/- by the husband of victim Varsha. This omission was also proved through the Investigating Officer, inasmuch as said PW 2 Pushpabai did not mention anything to that effect while giving her statement to the police. (7) Two contradictions were brought on record from the evidence of PW 2 Pushpabai, which were proved through Investigating Officer as Exhibits 53 and 54. First one is to the effect that one Dharamsingh told PW 2 Pushpabai that victim Varsha was brought from the third floor to the second floor of the building, where she was staying. The second one is that PW 2 Pushpabai told police that victim Varsha committed the suicide. Though PW 2 Pushpabai denied having said so before the police, these portions as appeared in her statement recorded under Section 161 of the Criminal Procedure Code, were proved through the Investigating Officer. (8) An omission was brought on record from the evidence of PW 2 Pushpabai as to accused Kamlabai used to beat the victim. Cr.Appeal/204/1994 9 (9) Two contradictions were brought on record from the substantive evidence of PW 3 Jayashri and those were proved through the Investigating Officer as Exhibits 55 and 56. First one is to the effect that victim Varsha's parents came to her and went away after the quarrel. Second one is to the effect that Dharamsingh telling PW 3 Pushpabai that dead body of victim Varsha was brought to second floor from the third floor of the building. (10) An admission has been given by PW 4 Tuljabai, another relative of victim Varsha that she had not seen any injury on victim Varsha. From her evidence, a contradiction was brought on record and it was proved through the Investigating Officer as Exhibit 57 to the effect that victim Varsha hanged herself. Said portion was appearing in her statement recorded by the Police. However, she denied having mentioned so to the Police. 9. After scrutinising the above factual position, learned Additional Sessions Judge came to the conclusion that the substantive evidence of main prosecution witnesses Nos. 1 to 4 cannot be taken as sufficient to establish the guilt of the Cr.Appeal/204/1994 10 respondent / accused. Apart from above, it has been discussed by the learned Additional Sessions Judge that it was not possible for the accused, a lady of thin built, to strangulate and hang the victim and then carry her dead body, without being noticed by anybody, from third floor to second floor of the building. In arriving at this conclusion, the learned Additional Sessions Judge has discussed the factual position of physical stature of victim Varsha as she was a young lady of 19 years and having strong and stout physic. What weighed with the learned Additional Sessions Judge, more prominently, was the factual circumstance that the third floor room door had a broken latch from inside and this was in consonance with the story of the defence that the door was broken open from outside by the neighbours, thus causing damage to the wooden latch, which was fixed to the door from inside. Apparently, these circumstances prompted the learned Additional Sessions Judge to come to the conclusion that it was a case of suicide and not of homicide. This decision was further fortified by other circumstances that there was no eye witness to the incident, no independent witnesses were examined and Cr.Appeal/204/1994 11 that all the four witnesses were relatives of victim Varsha. 10. We have also seen that the learned Additional Sessions Judge had critically discussed the above circumstances and had considered that though it was a case of custodial death, the evidence led by the prosecution was deficient to bring home guilt to accused Kamlabai. 11. Considering the effect of substantive evidence as discussed above and considering the reasoning given by the learned Additional Sessions Judge, in our view, the learned Additional Sessions Judge has not fallen in an error in coming to the conclusion as to non-establishment of the guilt of respondent Kamlabai. This is more so, considering the scope of this Court while dealing with the appeals against acquittal. 12. In the result, there is no merit in the present appeal and the same is disposed of with the following order. Cr.Appeal/204/1994 12 ORDER Criminal Appeal No.204 of 1994 (State of Maharashtra Vs. Kamlabai Babusingh Thakur) stands dismissed. (A.R.JOSHI, J.) (A.H.JOSHI, J.) ... akl