1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO.415 OF 1999 The State of Maharashtra through P.P. High Court, .. Appellant/ori. Bench at Aurangabad. complainant. versus 1. Suryabhan Rangnath Kshirsagar 34, 2. Rangnath Bapurao Kshirsagar, 68, 3. Sou. Simintabai Rangnath Kshirsagar, 62, 4. Bapurao Rangnath Kshirsagar, 25. All r/o Kaban Sangvi, .. Respondents Tq.Chakur, District Latur. ori.accused ------------- Shri B.V.Wagh, A.P.P. for the Appellant-State. Shri V.D.Gunale, Advocate, for the Respondents. 2 Coram : P.R. Borkar, J. Date : December 07, 2009. ORAL JUDGMENT 01. This is an appeal filed by the State, being aggrieved by the order of acquittal of four accused persons-present respondents of the offences punishable under Section 304-B, 306 and 498-A read with Section 34 of the Indian penal Code, passed by the learned II Additional Sessions Judge, Latur, in Sessions Case No. 157 of 1996, decided on 12.5.1999. 02. The facts giving rise to this appeal are that Respondent No.1-Suryabhan was the husband of deceased Meena. Meena was the sister of PW-4 Ashok and PW-5 Bhagwan and daughter of PW-8 Nagesh who are residents of village Ujed, Taluka Nilganga District Latur. Respondent 1 is son of Respondent Nos. 2 and 3 (Rangnath and Simintabai) and brother of Respondent No.4- Bapurao. PW-6 Bajirao and PW-9 Rukmaji were the sons-in-law of PW-8 Nagesh and as such brothers- in-law of deceased Meena. PW-7 Ushabai is the wife of cousin of deceased Meena and PW-10 Chabubai is 3 neighbour of PW-8 Nagesh. PW-11 Shivaji Bhise is the Investigating Officer. PW-1 Dr. Kapse is the Medical Officer who carried out post mortem examination on the dead body of Meena. PW-2 Vijaykumar is the panch witness on the spot panchanama. PW-3 is the Police Patil who had filed report on 12.8.1996 with police regarding the death of Meena which is proved at Exhibit 23. 03. It is no more disputed that Respondent No.1 Suryabhan married the deceased Meenabai on 4.6.1994. After the marriage, she went to reside at the house of Respondents at village Kaban Sangvi, Taluka Chakur, District Latur. She was treated well till Diwali. It is also not in dispute that Respondent no.1 was serving in the District Central Cooperative Bank, Latur, branch at Chakur, where PW-9 Rukmaji was also serving. In September, 1995, Respondent No. 1 was terminated from his services in view of the circular issued by the said District Central Cooperative Bank. Respondent No.1 moved Labour Court and was reinstated after the period of two months. The Respondents- accused have also admitted post mortem notes and inquest panchanama and thus they have admitted that Meenabai died due to asphyxia as a result of drowning. 4 Her dead body was found floating in the public well situated in the land of one Madhav Maruti Sangwe of village Kaban Sangvi on the night of 11.8.1996 and, therefore, police were informed and the dead body was taken out in the morning of 12.8.1996 and was sent for post mortem. Post mortem was carried out by PW-1 Dr. Kapse, Medical Officer then attached to the Rural Hospital, Chakur. He proved post mortem notes at Exhibit 18. Paragraphs 17 and 18 of the post mortem notes make it clear that there was no external injury on the person of the deceased Meena. 04. On the basis of the complaint (Eh.26) that was lodged by PW-4 Ashok on 13.8.1996 with Rural Police Station, Udgir, crime was registered against the Respondents-accused for offences punishable under Sections 498-A and 306 read with section 34 of the Indian Penal Code. However, charge was also framed under Section 304-B read with Section 34 of I.P.C. 05. The prosecution in all examined eleven witnesses who are referred to herein above. The learned Sessions Judge ultimately came to the conclusion in paragraph 33 that the evidence was falling short of proving the offences and did not 5 inspire confidence to hold the accused persons guilty of offences with which they are charged. Possibility of the death being suicidal or accidental is there and therefore the accused are entitled to the benefit of doubt. The learned Judge also held that there was no dowry demand as such. In paragraph 31 of his judgment, the learned Judge observed that the amount of Rs. 30,000/= allegedly demanded by the accused, was for confirmation of Respondent No. 1 in the service and as such cannot be called to be demand of dowry within the meaning of Section 2 of the Dowry Prohibition Act, 1961. 06. First information about death of Meena was given by PW-3 Manik who was the Police Patil of village Kaban Sangvi and examined at Exhibit 22. Manik has stated that on 11.8.1996, at about 11.30 p.m. accused No.2 Rangnath came to his house and orally informed that at about 8.00 p.m., his daughter- in-law (deceased Meena) had gone out and did not return and after search, her dead body was found in one public well which is in the land of one Madhav. Thereafter PW-3 Manik went to the well and saw the dead body of Meena floating in the well. On the next day morning, he gave written information to the police 6 which is proved at Exh.23. In the report, it is stated that Respondent No.2 had informed the Police Patil that his daughter-in-law Meena had left the house for answering nature's call at about 8.00 p.m. on 11.8.1996, but she did not return and, therefore, search was made and ultimately her dead body was bound floating in the public well situated in the land of Madhav Maruti Sangve. 07. PW-2 Vijaykumar examined at Exhibit 20 is the witness on the spot panchanama which is proved by him at Exhibit 21. However, he has specifically stated that one torch and pair of chappals were lying on the bank of the well and that one steel pot (tambya) was floating on the well water and somebody had picked up the same. He stated that battery of Everready make, steel tambya and one pair of slippers were seized in his presence. The witness was declared hostile as he denied the suggestion by prosecution that on southern side of the well at a distance of 4 feet, one pair of slipper and steel tambya full of water were lying. In his cross examination, witness stated that he signed the panchanama because its contents were true. He also admitted that on southern side of the well, at a distance of 4 feet the steel 7 tambya and pair of chappal were lying. He also stated that steel tambya was full of water, but then asserted that the same was empty. He identified those articles. In further cross examination, he stated that when he reached the well, he saw tambya and pair of sleeper floating on the well water. It is argued by the learned Advocate of respondents that said circumstance cledarly indicates that it was a case of accidental death. 08. It is argued by learned A.P.P. Shri B.V. Wagh that PW-2 panch witness Vijaykumar was not telling truth and since in the panchanama it is mentioned that steel pot (tambya) was full of water, ordinarily Meena would have no occasion to go back to the well and fall in it. PSI Shri Bhise (PW-11) examined at Exhibit 35 proved the spot panchanama prepared by him. He stated that he had seized sleepers, steel pot full of water and a torch. It was suggested that the sleeper and steel pot were in the well, but he denied the suggestion. It is also argued that the second panch witness on the spot panchanama is not examined and, therefore, benefit of doubt must go to the accused. Spot panchanama Exh.21 also shows that there was no parapet wall around the well and on 8 one side of the well there was stream (nallah) and there was water in the well 8 ft. in depth. 09. Post mortem notes at Exhibit 18, which are admitted under Section 294 of the Code of Criminal Procedure, 1973, specifically state that there was no external injury on the dead body of Meena. So, there was no sign of violence and as such, there was no circumstance to indicate that it was not an accidental death. The possibility of accidental death, therefore, is not ruled out beyond reasonable doubt. 10. So far as evidence regarding ill- treatment and demand of amount of Rs.30,000/= by accused is concerned, relevant witnesses are PWs-4 to 10. PW-4 Ashok is the complainant who is examined at Exhibit 25. He proved complaint at Exhibit 26. It is stated in the complaint that after marriage, Meena was treated well by the Respondents till Diwali. Thereafter, he brought her to his house for Diwali. She lived with her parents for 15-20 days and then she told him that her husband Suryabhan-Respondent No.1 was demanding Rs.30,000/= from her parents for confirmation of his service in the District Central Cooperative bank. It is further stated that she also 9 told PW-4 Ashok that on her expressing inability to bring the amount, she was beaten, driven out of house and was also not given food. At that time, PW 4 Ashok and PW-5 Bhagwan told Meena that they did not have money and they would pay the same as and when required by Respondent No.1. With this assurance, Meena was taken to her in-laws house by PW-4 Ashok. There, Ashok requested the Respondents not to harass Meena. Two months thereafter, Respondent No. 1 brought Meena back to her parents' house and told her not to come back without bringing Rs.30,000/= from her parents. When he was leaving, Meena told him that she wanted to come with him, but he started beating her. At that time, PW-4 and some neighbouring ladies intervened and rescued Meena. Respondent No. 1 went away in anger and thereafter nobody from his side came to take back Meena. Two days after Gudi Padva of 1996, PW-4 Ashok and PW-6 Bajirao had taken Meena to her husband and requested the Respondents to treat her well. It is further stated that thereafter Ashok used to go often to Meena, but she used to simply weep, without saying anything. At the time of Adhik Maas, PW-8 Nagesh, the father of Meena, had gone to her at her in-laws house, when she told him that she was being ill-treated by Respondents on account of non- 10 fulfillment of demand of Rs.30,000/= and they used to tell her to ask her brothers to pay the said amount. However, PW-4 Ashok could not arrange for the amount and thereafter he heard news regarding death of Meena. 11. The learned Sessions Judge compared the abovesaid complaint proved at Exh.26 with application given by PW-4 Ashok to the Rural Police Station, Udgir on 12.8.1996 which is at Exhibit 44. It is argued that the contents of the said application/complaint prepared on 12.8.1996 (Exh.44) are materially different from the contents of the complaint (Exh. 26). In application Exh.44,it is stated that Respondents killed Meena and threw her dead body into the well. It is also stated that she was always telling her brother and parents about illtreatment to her. Therefore, PW-4 Ashok and PW-6 Bajirao visited Kaban Sangvi and convinced the Respondents to treat Meena well. On enquiry, Respondent No.1 said that he wanted Rs.30,000/= for his services, since he was working on daily wages in District Central Cooperative Bank. He was harassing Meena for bringing money from her parents. It is further stated that Respondent No. 1 had taken Meena to Latur, kept her alone at the S.T. stand, then they stayed at the S.T. stand for night 11 and in the morning he brought Meena to the house of PW-4 and asked her to demand money. He also threatened Meena, if she comes back without money, she would be killed. Respondent No.1 quarreled with Meena and left her. About 15 days thereafter PW-6 Bajirao and PW-9 Rukmaji took Meena to house of Respondents and said that they would pay money to Respondent No.1 whenever (amount is) required and left Meena at her in-laws house at Kuban Sangvi. Thereafter, PW-4 Ashok used to personally go and meet Meena and she used to complain to him about beating to her by Respondent No. 1. Meena was thereafter brought at her parents' house for festival of Padva when also she narrated about ill-treatment and threat of killing by Respondents to her due to non fulfillment of their demand. 12. One thing that may be noted is that admittedly there are two different complaints on record, i.e. application dated 12.8.1996 (Exh.44) and the complaint dated 13.8.1996 (Exh.26). It is argued that the very demand of Rs.30,000/=is something which is unreliable. Evidence regarding same is doubtful. My attention was drawn to the evidence of PW-9 Rukmaji who is examined on at Exh.32. Rukmaji in his examination-in-chief stated that Respondent No.1 was 12 working in the Chakur Branch of the District Central Cooperative Bank, Latur on daily wages. In September 1995,Respondent No.1 was terminated from the services, in view of the circular issued by the District Central Cooperative Bank. Rukmaji has further deposed that Respondent No.1 personally met him at Chakur one year after his marriage and told him that he had left Meena at her parents' house for bringing Rs.30,000/= as he was in need of the same for the purpose of confirmation of his service in the said Bank. But, this witness has also admitted in the cross examination that because of the court orders, Respondent No.1 was reinstated in the service. It is also stated in paragraph 2 of his examination in chief that when the incident of death of Meena occurred place on 12.8.1996, Respondent No.1 was not in service.He had filed case in Labour Court. PW-4 Ashok, in paragraph 7 of his deposition at Exhibit 25, stated that Respondent No.1 was removed from service 5-6 months prior to death of Meena.So, the question arises what was the necessity of Rs.30,000/= at the time of first or second Diwali after marriage. PW-5 Bhagwan, the brother of deceased Meena who is examined at Exhibit 27, in paragraph 4 of his cross examination specifically stated that Respondent No.1 was 13 reinstated in service within two months from the date of his dismissal as per the order of the Labour Court. PW-9 Rukmaji, who was working in the same branch of District Central Cooperative Bank has not stated as to who demanded Rs.30,000/= to make Respondent No.1 permanent in service and why such an amount was really required. In fact, if such an amount was really demanded by anybody for confirming Respondent No.1 in service, Respondent No.1 would have been first to know that particular person was demanding amount for making Respondent No.1 permanent in the service. Evidence of PW-9 Rakhmaji indicates that by that time, Respondent No. 1 had served in the bank for 33 months. It may be noted that wives of Respondent No.1 and PW-9 Rukmaji were the real sisters and, therefore, any demand for money would have been known to PW-9 Rukmaji and he would have made complaint against the person demanding money to his superiors. It may be noted that PW-9 Rukmaji was working on higher post as Inspector. 13. The trial court has discussed the entire evidence in all details and has come to a conclusion that the evidence on the point of demand of money for making services of Respondent No. 1 14 permanent is unacceptable. It would have been another thing if it was the say of the prosecution that money was required for meeting expenses of court case filed by Respondent No.1 for setting aside his removal from service. But, in that case, the demand would not have been before first Diwali after the marriage. Admittedly, marriage had taken place on 4.6.1994. 14. There is also element of concoction and attempt to create false evidence, inasmuch as PW-7 Ushabai examined at Exh.30 and PW-10 Chabubai examined at Exhibit 33 have exaggerated the story told by PW-4 Ashok regarding beating by Respondent No. 1 to Meena in front of house of Ashok. Usha stated that about 1 or 2 months after Diwali, when she was fetching water, Respondent No.1 had brought Meena to the house of her parents and Respondent No. 1 started going back. At that time Meena was saying him that she also wanted to go back with him, but Respondent No. 1 told her to come only if she brings cash and thereafter assaulted her with stick. Usha stated that she and Chabubai intervened. The story of beating with stick by Respondent No.1 to Meena in front of house of PW-4 Ashok is not stated by Ashok himself. Usha admits that Nagesh is uncle of her husband. She also stated 15 that when Respondent No.1 beat Meena, members of the family of Nagesh were inside their house. From witness box, Usha pointed out Respondent No.4-the brother of Respondent No.1 Suryabhan, as the husband of Meena and son-in-law of Nagesh and as a person who had beaten Meena. This clearly shows that Usha is got-up witness and, therefore, cannot be believed. 15. So far as evidence of PW-10 Chabubai is concerned, she also deposed about the incident in the same manner as Usha narrated. According to Chabubai, Meena was left at her parent's house by Respondent No. 1 and he was going back. At that time, Meena was weeping and so PW-10 Chabubai enquired Respondent No. 1 as to why Meena was weeping and he said that it was their personal matter. At that time members of the family of parents of Meena were inside their house. According to Chabubai, Meena was asked by Respondent No. 1 to go in her parents' house, but she insisted to come with him, whereupon Respondent No. 1 told her to come with money. Thereafter, Respondent No. 1 beat Meena with stick and went away. As per Chabubai, only Usha and she herself were the persons present at the water tap. 16 16. PW-8 Nagesh, father of deceased Meena, in his cross examination stated that he gave statement to the police as told by his sons Ashok and Bhagwan. He also stated that at the time of his evidence in the court, Ashok was standing outside the court. He also stated that Ashok told him what was to be deposed in the court and accordingly, he had given his deposition on the basis of such instructions. Witness Nagesh is aged 70 years. In such circumstances, evidence of such tutored witnesses cannot be believed for basing conviction. 17. It is worth noting that it has come in the evidence of PW-8 Nagesh and PW-9 Rukmaji that Meena had to be operated for appendix at Latur one year after her marriage and at that time medical expenses were borne by PW-9 Rukmaji, but thereafter the amount of expenses was repaid to him by Respondent No.1. Not only that, thereafter Respondent No. 1 used to take Meena for regular medical check-up to the hospital at Latur every month. It has also come in evidence that after operation, Meena was taken to her parental house for rest and she lived there for sometime. So, it is not that for Diwali Meena was taken to her parents' house and immediately she 17 complained about ill-treatment. 18. It has also come in evidence that police recorded statement of PW-9 Rukmaji one month after the incident. Statement of PW-6 Bajirao was recorded eight days after the incident and not immediately. The trial court has discussed evidence of material witnesses PW-4 Ashok, PW-5 Bhagwan and PW-6 Bajirao with all details and noted the discrepancies and inconsistencies in their evidence. None claimed to be actual witness to actual cruelty. They all stated that Meena was complaining of ill- treatment. The Trial Court did not find their evidence reliable. 19. The limitations of the appellate court in appeal against the order of acquittal are summarized by the Supreme Court in the case of Arulvelu vs. State of Madras 2009 All MR (Cri.)(S.C.) 3396, which is relied upon by learned Counsel for the Respondents. I quote paragraphs 41 and 44 which are relevant for our purpose. "41. Careful scrutiny of all these judgments lead to the definite conclusion 18 that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law. "44......................................... Unquestionably,the Appellate Court has power to review and re-appreciate the entire evidence on record. The appellate court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial court is found to be perverse judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position crystalized by aforementioned judgment of this Court. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the trial 19 court." 20. After having given anxious consideration to the facts and evidence on record and detail reasons given by the learned Additional Sessions Judge for disbelieving the prosecution evidence, in my considered opinion, the view taken by the learned Judge is reasonable and plausible view based on appreciation of the evidence on record and therefore, cannot be called to be perverse. This, therefore, is not a case requiring interference in appeal against acquittal. 21. In the result, the judgment and order of acquittal passed by the learned Sessions Judge is confirmed. Appeal stands dismissed. pnd/criapl415.99 (P.R. BORKAR, J.)