1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.275 OF 1998 Hurmoddin Shardul Shaikh, Aged 28 years, Occu.Agri., R/o Gandora, Taluka Tuljapur, District Osmanabad ..APPELLANT VERSUS The State of Maharashtra through the Police Station Officer, Police Station, Naldurg, District Osmanabad ..RESPONDENT Mr.S.S.Choudhari, Advocate for appellant Mr.K.B.Choudhari, Assistant Public Prosecutor for respondent- State CORAM : P.V. HARDAS, J. DATE : 27th SEPTEMBER 2010 ORAL JUDGMENT 1. The appellant, who stands convicted for an offence punishable under section 498-A and under Section 306 of the Indian Penal Code and sentenced to rigorous imprisonment for two years and to pay fine of Rs.1,000/- in default to undergo further rigorous imprisonment for three months and rigorous imprisonment for five years and to pay fine of Rs.2,000/- in default to undergo further rigorous imprisonment for six months, respectively by the Additional Sessions Judge, Osmanabad, by judgment dated 3.9.1998, in Sessions Case No.165 of 1995, by this appeal questions the correctness of his conviction and sentence. 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. Information at Exh.20 came to be lodged by Dagdu Kashiram Mulla, a Kotwal of the village intimating the finding of dead body of deceased Kaleemabee in the Well. Accordingly, accidental death was registered as A.D.No.4/1995. During the investigation of the said A.D., P.W.3 P.S.I. Hande proceeded to the scene of the offence and removed the two dead bodies from the Well i.e. the dead body of Kaleemabee and that of her child and drew the inquest panchnama at Exh.22. Both the dead bodies were referred for post mortem examination. Scene of the offence panchnama at Exh.21 came to be drawn and thereafter on the basis of the complaint of P.W.1 Ajmer at Exh.27, an offence vide Crime No.20 of 1995 came to be registered. Statements of witnesses came to be recorded and further to the completion of investigation a charge-sheet against the appellant came to be submitted. 3. On committal of the case to Court of Sessions, trial Court vide Exh.16 framed charge against the appellant and another accused for offence punishable under Section 306 read with 34, 304-B read with 34 and 498-A read with 34 of the Indian Penal Code. Prosecution in support of its case examined four witnesses and the trial Court upon appreciation of the evidence of the four 3 witnesses acquitted original accused No.1 of all the offences with which she was charged and also acquitted the appellant of offence punishable under Section 304-B and convicted and sentenced the appellant for an offence punishable under section 498-A and 306 of the Indian Penal Code. 4. In order to appreciate the submissions advanced before me by Mr.S.S.Choudhari, learned Counsel for the appellant and Mr.K.B.Choudhari, learned Assistant Public Prosecutor for respondent-State, it would be useful to refer to the evidence of the prosecution witnesses. According to P.W.1 Ajmer, father of deceased Kaleemabee, deceased Kaleemabee was married to the appellant five years prior to the incident. According to him Kaleemabee was treated well initially upto the birth of her second child. When Kaleemabee was pregnant on the second occasion, the appellant-accused had stated that in case the girl was born to Kaleemabee, Kaleemabee would kill her. Kaleemabee informed P.W.1 Ajmer that the accused were ill treating and beating her on account of one tola of gold not being given to the accused. He states that on account of drowning his daughter Kaleemabee died and he had lodged his report with Police. 5. P.W.2 Jamilabee, mother of deceased Kaleemabee states that Kaleemabee when was pregnant on the second occasion, the 4 accused told Kaleemabee that in case Kaleemabee gave birth to a girl, she should kill the girl. P.W.2 Jamilabee states that Kaleemabee had informed her that she was ill treated by the accused. According to Jamilabee, no oil for applying for her hair was provided to her and she was starved by the accused. 6. The evidence of P.W.1 Ajmer and P.W.2 Jamilabee in respect of ill treatment is entirely different. P.W.1 states that the accused was ill treating her by assaulting, while P.W.2 Jamilabee states that the accused was ill treating her by not providing oil for applying it to her hair and that the accused used to starve her. On the basis of such vague and discrepant evidence charge for offence punishable under Section 498-A of the Indian Penal Code cannot be sustained. 7. The evidence of P.W.3 Dr.Mahadeo Hande clearly indicates that both the deceased had died because of asphyxia due to drowning. Certain injuries were found on the body of Kaleemabee. P.W.3 Dr.Hande had admitted that he had opined that the injuries were possible due to fall in the Well. According to me the prosecution has miserably failed in establishing that deceased Kaleemabee had committed suicide on account of harassment or ill treatment of the accused. In fact, from the evidence on record, accidental fall in the Well also cannot be 5 ruled out. In such circumstances the appellant accused is entitled to be given the benefit of doubt. 8. Accordingly, this criminal appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which he was charged and convicted. Fine, if paid by the appellant be refunded to him. His bail bonds stand cancelled. ( P.V.HARDAS ) JUDGE (vvr/275.98criapeal)