High Court

Legal Reasoning

-1- Cri.Appeal.634.2005IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 634 OF 2005Pralhad S/o. Dagdu Thorat, Age : 45 years, Occu. : Rickshaw Driver, R/o. Plot No.93, Sonya Maruti Colony, Dhule, Tq. & Dist. Dhule.…. Appellant (Orig. Accused) VersusThe State of Maharashtra…. Respondent (Orig. Complainant)…Mr. N. L. Choudhari h/f. Mr. Ravindra Shinde, Advocate for AppellantMrs. Ashlesha S. Deshmukh, APP for Respondent – State.... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 10 OCTOBER, 2024PRONOUNCED ON : 17 OCTOBER, 2024JUDGMENT : 1.In this appeal, there is challenge to the judgment andorder dated 31.08.2005 passed by 4th Ad-hoc Additional SessionsJudge, Dhule in Sessions Case No. 6 of 2005, recording guilt ofappellant for offence punishable under section 307 of Indian PenalCode (IPC).FACTUAL MATRIX2.Appellant was charge-sheeted on accusations that, heused to beat and ill-treat his wife Rekhabai on trifle counts.Because of such treatment, mother had lodged complaint in thecourt of Jalgaon. Still, he continued to ill treat her to suspect her -2- Cri.Appeal.634.2005character. On 21.12.2004, he laced her glass of water with sometablets and made forcibly drink it, due to which she fell uneasinessand was taken to civil hospital, Dhule, where her statement wasrecorded by PW3 Virsing and made the basis for registration ofcrime bearing No.199 of 2004 for offence punishable undersections 498-A, 307 and 323 IPC, which was investigated by PW1PSI Sushir and after completing investigation and gatheringevidence, appellant was charge-sheeted. Appellant Pralhad was tried vide Sessions Case No.6 of2005 by 4th Ad-hoc Additional Sessions Judge, who accepted thecase of prosecution as regards to offence under section 307 IPConly and acquitted him of remaining charge of 498A and 323 IPC. Feeling aggrieved by the above judgment and order ofconviction, instant appeal has been preferred. SUBMISSIONSOn behalf of Appellant :- 3.Learned counsel would submits that there is falseimplication due to strained matrimonial relations. That, there wasalready matrimonial dispute. It is pointed out that, allegations arenow raised that poison was administered through drinking water,but it is pointed out that, there is no evidence about administration -3- Cri.Appeal.634.2005of poison. Learned counsel submitted that, there is CA report ofanalysis and stomach wash is negative and therefore this itself hadfalsified complainant’s version. 4.He further pointed out that, PW2 Priyanka daughterwas said to be in the house at the time of alleged incident. She hadnot seen appellant in the house at that time. That, in her evidenceshe merely spoke appellant leaving the house. Therefore, noconvincing and cogent evidence that, appellant administeredpoison. He pointed out that, even testimony of daughter PW2Priyanka is not supported by independent evidence. According tolearned counsel, medical expert admitted that, there was no threatto life and so he questions the finding of trial court for offenceunder section 307 IPC. He submitted that, except evidence of PW2Priyanka, there is no trustworthy evidence and therefore hequestions the findings and conclusions drawn by learned trial courtand prays to set aside the same.On behalf of Respondent :- 5.In answer to above, learned APP pointed out that,appellant husband mal-treated wife and beat her by suspecting hercharacter. Therefore, she had lodged case against him in the courtthat, on 21.12.2004, he forcibly administered poison in the form of -4- Cri.Appeal.634.2005tablets. Daughter PW2 Priyanka, who was in the house and shiftedher mother to the hospital has seeing appellant running away afteradministering poison. Medical experts, who examined Rekhabainoticed sedative being administered. She pointed out that, becausequantity was small, chemical analysis was negative. She pointedout that, there is direct eye witness in the form of PW2 Priyanka.That, there is no reason for false implicating father itself. That, shehas witnessed to the ill treatment and therefore learned APPsubmitted that learned trial Judge has correctly relied on theversion of PW2 Priyanka and has recorded the guilt and henceaccording to her, findings and judgments being infallible, the samemay not be interfered with.EVIDENCE BEFORE TRIAL COURT6.PW1 PSI Sushir, Investigating Officer, who recordedstatement of victim (Exh.12) and on its basis registered the crimefor offence under sections 307 and 323 IPC. PW2 Priyanka, daughter of appellant and victim,claims to be present in the house on 21.12.2004 at 8:30 p.m. Sheclaims that after hearing noise, she went to the kitchen and sawappellant abusing her mother and later on heard noise of glassfalling on the ground and also saw father leaving the place from thebackdoor. On inquiry, her mother told that, her father put -5- Cri.Appeal.634.2005poisonous tablets in the water and administered it to her. Due towhich, her mother complained of uneasiness and giddiness and sheshifted her to civil hospital. PW3 Special Executive Magistrate, who recordedstatement of Rekhabai (Exh.17). PW4 API Vadnere, who conducted investigation andcharge-sheeted accused. PW5 Dr. Prashant Shinde, Medical Officer at Dhule CivilHospital, who prepared medical papers and gave treatment. Healso collected stomach wash and sent it to laboratory. He alsocertified fitness statement on being approached by police. ANALYSIS7. Here, out of five witnesses, two are police witnesses i.e.one who recorded statement and other who investigated crime.One is the Special Executive Magistrate and one is Medical Officerand remaining witness is daughter. Surprisingly, Rekhabai is notexamined by prosecution. 8.The substantive evidence of PW2 Priyanka, who is thestar witness is already dealt in aforesaid paragraph. Her evidenceis that, her father ill treated her mother, suspected her chastityand assaulted her and hence, her mother lodged complaint in -6- Cri.Appeal.634.2005court. Regarding the incident she stated that, around 8:30 p.m.while she was studying, her father was talking with her mother inthe kitchen and she claims to have heard filthy words uttered byher father. So she claims to have rushed towards the kitchen i.e.after hearing noise of glass falling on the floor and that time sheclaims she saw her father left the from the backdoor. She claimsthat she made inquiry with her mother, upon which mother toldthat her father put poisonous tablets in the water and forciblyadministered to her. Her mother complained of uneasiness andgiddiness and was taken to hospital. While under cross, in paragraph no.5, which is relevant,she answered that, on 18.05.2005 her mother committed suicideby hanging while she was residing with grandfather andgrandmother. She further admitted that, her father had filedH.M.P. No.37 of 2001 against her mother for restitution of conjugalrights. She denied quarrel between her parents on the ground ofpoor financial position of appellant. Omissions are brought inparagraph no. 7 to the extent that she heard noise of glass fallingon the ground and she rushing to the kitchen. She answered that,she does not remember whether she stated to police about hermother telling her that father forcibly administered the solution ofwater of poisonous tablets. She stated that, she does not remember -7- Cri.Appeal.634.2005the exact words she narrated to police allegedly uttered by herfather. She denied seeing statement of her mother. She stated thatpolice did not make any inquiry on 21.12.2004. Rest is all denial. 9.Statement of victim, which was recorded at Exh.12.She reported that, after quarreling, her husband beat her, mixedpoisonous tablets in glass of water and forcibly administered her. 10.Prosecution claims that, statement of Rekhabai wasrecorded by PW3 Virsing and the same is at Exh.17. The statementis in question answer form. Question no.7 is the relevant questionpertaining to occurrence and the answer to it in translated formare as under :- Question No.7 : Why occurrence took place ? Whether therewas trouble by family members ? Who all were present at thetime of incident and their names ?Answer : “Quarrel between husband and wife. Husband raisedsuspicion on character of wife. It appears that, her husbandPralhad forcibly administered water containing medicine andwas therefore brought by daughter to civil hospital, Dhule.Husband repeatedly put up demand of money for light bill andtroubled to her and to the children at late night.” While under cross PW3 Virsing admitted that he wasnewly appointed Special Executive Magistrate and therefore did -8- Cri.Appeal.634.2005not read over the statement back to her. He did not seekinformation as to how dying declaration is to be recorded. Headmitted that Medical Officer did not give endorsement ofconsciousness to record statement. Admittedly, remaining two witnesses are policewitnesses.11.PW5 Dr. Prashand Shinde, another important witness,who is a Medical Officer, in examination-in-chief itself stated that,when he was on duty, patient by name Rekhabai was admitted withhistory of some sort of sedative drugs administered by husbandforcibly on 21.12.2004 at 8:30 p.m.. He prepared case papers andtestified about giving treatment by way of antibiotic injection andinjection lasix (diuretics), antacid and injection hydrocole steroid.He collected stomach wash and sent it to laboratory. He alsocertified fitness to give dying declaration. While under cross he admitted that, when patient wasadmitted, her condition was not serious. He answered that stomachwash obtained for confirmation of poison on sedative. He admittedthat Investigating Officer has not sent him CA report. After goingthrough the same, he answered that according to CA report, nopoisonous substance was found . He denied that there was no drugspoisoning, however, he deposed that, there may be sedative drugs -9- Cri.Appeal.634.2005and being in minimum quantity, in C.A. report, such sedativepoison will not be detected. He again answered that after goingthrough the case papers and thereafter till she was discharged,there was no danger to the life of her. He answered that, SpecialExecutive Magistrate did not record dying declaration from 11.15to 11:30 p.m. of 21.12.2004 in his presence.12.Therefore, on appreciating the above evidence, here,two things are emerging, i.e. firstly, matrimonial discord betweenRekhabai and appellant. Secondly, allegation of forciblyadministering water containing poison. But, though admitted andtreated by PW5 Dr. Prashand Shinde, he is categorically statingthat, there was no danger to the life till she was discharged nor hercondition was serious. After going through the CA report, doctorhas admitted that no poison was detected. It is noticed that, whatdoctor deposes is that, history were reported was of administeringsedative drugs, but there is no evidence in that regards. 13.Only evidence is of PW2 Priyanka daughter and she hasstated about hearing abusive words and filthy language used by herfather with her mother that night and after hearing noise of fall ofglass, she ran to the kitchen and claims that, she saw accusedleaving from back door. Even, the so called glass in which water -10- Cri.Appeal.634.2005mixed with poisonous tables were forcibly administered is notseized by investigating machinery. 14.Law is fairly settled that, for attracting the chargeunder section 307 IPC, prosecution is duty bound to provefollowing essential ingredients :- “(1)The accused did some act;(2)Such act was done with intention or knowledge that hurtwas likely to be caused to the victim by the act.”15.From above discussion, what is emerging that therewere allegations of administering poison. But, stomach washanalysis ruled out poison which is evident from CA report atExh.10/C. PW5 Dr. Prashant Shinde categorically answered incross that condition of patient was not serious nor there was anydanger to life. Under such circumstances, required ingredientsunder section 307 IPC are patently missing. 16.Perused the judgment under challenge. Findings oflearned trial court from paragraph no.24, 25 and 26 are not inconsonance with the evidence. Resultantly, there is incorrectappreciation and reaching to erroneous conclusion. Hence,interference is called for. Accordingly, I proceed to pass thefollowing order :- -11- Cri.Appeal.634.2005ORDERI)The criminal appeal is allowed.II)The conviction awarded to appellant Pralhad S/o. DagduThorat in Sessions Case No.06 of 2005 by learned 4th Ad-hoc Additional Sessions Judge, Dhule on 31.08.2005 forthe offence punishable under section 307 of Indian PenalCode, stands quashed and set aside.III)The appellant stands acquitted of the offence punishableunder section 307 of Indian Penal Code.IV)The bail bonds of the appellant stands cancelled.V)The fine amount deposited, if any, be refunded to theappellant after the statutory period. (ABHAY S. WAGHWASE, J.) Tandale