High Court

Legal Reasoning

{1} CR APPEAL NO. 820 OF 2003IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 820 OF 2003Balu Raghu SasaneAge: 30 years, Occu.: AgriculturalLabourer, R/o. Karjod, Taluka – Raver, District – Jalgaon.….Appellant (Ori. Accused No.1)VersusState of Maharashtra…..Respondent …..Advocate for Appellant : Mr. Joydeep ChatterjiAPP for Respondent: Mr.Rajdeep D.Raut ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 21 JUNE, 2024 PRONOUNCED ON : 01 JULY, 2024 JUDGMENT :- 1.Judgment and order passed by the learned II Ad-hocAdditional District Judge and Asstt. Sessions Judge, Jalgaon dated09-12-2003 in Sessions Case No.105 of 2002, is taken exception to byappellant by filing instant appeal on account of his conviction foroffence under Sections 498-A and 306 of the Indian Penal Code(IPC). {2} CR APPEAL NO. 820 OF 2003 PROSECUTION CASE IN BRIEF2. Crime was registered on the strength of report lodged by PW1Chagan alleging that, his daughter Radhabai was married withaccused no.1. For initial period of two years, everything wassmooth,. Thereafter, husband used to get drunk and beat deceased.Because of the said treatment, deceased used to come and stay withfather. She also reported about suspicion on her character byaccused no.1. Accused nos.2 and 3 used to instigate accused no.1husband to subject her to ill-treatment. Barely after 5-6 days fromthe date she was taken back by husband, she committed suicide byjumping in well. Therefore, father lodged report, which was made basis ofregistration of crime and finally it was investigated by PW6 Zade(PSI, S.D.P.O.) and accused came to chargesheeted and tried beforethe learned II Ad-hoc Additional District Judge and Asstt. SessionsJudge, Jalgaon in Sessions Case No.105 of 2002. 3.During trial, prosecution has adduced evidence of in all sixwitnesses and also relied on documentary evidence like FIR, inquestpanchanama, post mortem report etc. After appreciating oral anddocumentary evidence by the learned trial Court, case of prosecution {3} CR APPEAL NO. 820 OF 2003has been accepted as against accused no.1 husband for offence underSections 498-A and 306 of the Indian Penal Code (IPC), whereasaccused nos.2 and 3 stood acquitted.Appellant husband, who alone stood convicted, has nowpreferred instant appeal on various grounds raised in the appeal. SUBMISSIONSOn behalf of appellant :4. Criticizing the impugned judgment, learned Advocate for theappellant pointed out that there are general and omnibus allegationsabout beating after consumption of liquor. According to learnedCounsel, there is no convincing, cogent evidence in support of chargeunder Sections 498-A and 306 of the IPC. It is pointed out thattestimony of child has been considered by the learned trial Courtwithout appreciating the law regarding its evidentiary value. Hetook this Court through the evidence of child and submits thatapparently child has been tutored. It is pointed out that on onehand, child spoke about he to be sleeping and at the same time, healso deposed about seeing his mother going towards well alongwithaccused father. Thus, according to learned Counsel, testimony ofchild cannot be taken recourse to by prosecution. He pointed out that {4} CR APPEAL NO. 820 OF 2003circumstances at the scene of occurrence clearly suggests thatdeceased had been to fetch water. That the container and vesselstaken for water are also found near the well. According to him,possibility of accidental fall, while leaning and fetching water fromwell, cannot be ruled out. That there is no evidence as regards anyincident of ill-treatment before she left house. According to him,unfortunately learned trial Court has ignored such circumstancesemanating from the prosecution evidence. That in absence of cogent,reliable evidence about ill-treatment and abetment, guilt has beenrecorded. According to him, such judgment is not sustainable in theeyes of law and therefore, he prays to interfere in the impugnedjudgment. In support of his case, he seeks reliance on the judgment of thisCourt passed in Criminal Appeal No.112 of 2002 dated 19-06-2024in the case of Ijaj Ahmad Riyaz Ahmed Qureshi and others v. TheState of Maharashtra. On behalf of State :5. Per contra, learned APP for the State would submit thatevidence of informant / father of deceased is itself worthy ofcredence. That he has deposed about continuous beating after {5} CR APPEAL NO. 820 OF 2003getting drunk. That there was physical cruelty and therefore,deceased repeatedly left company of the husband and went to staywith her father. It is pointed out that informant father deposed aboutgiving understanding by indulging influential persons of the villageand only thereafter, he sent his daughter with accused husband butbarely a week there after, deceased died unnatural death. Learned APP pointed out that testimony of very child ofdeceased and accused no.1 is also clear, cogent and convincing aboutill-treatment given to his deceased mother. That child narrated aboutcontinuous beating by accused no.1 to deceased and that getting fedup with such beating, deceased committed suicide. That there wasno other reason for deceased to commit suicide. Therefore,according to learned APP, learned trial Court committed no error inaccepting case of prosecution as proved and thus, rightly convictedaccused. Therefore, he prays to dismiss the appeal for want of merits.EVIDENCE ON BEHALF OF PROSECUTION IN TRIAL COURT6.In support of its case, prosecution has adduced evidence of inall six witnesses. Sum and substance of their evidence is as under:PW1 Chagan Wana Tayade, informant is father of deceased {6} CR APPEAL NO. 820 OF 2003Radhabai. He deposed at exh.10 about marriage of his daughterwith accused no.1 and accused nos.2 and 3 to be elder brother andsister-in-law of accused. He deposed that for two years, deceasedRadhabai was treated properly. That thereafter, accused no.1husband, after consuming liquor, beat his daughter. That because ofit, she had come to stay with him for 10 to 12 occasions. She alsoinformed about suspicion on her character by accused and thataccused nos. 2 and 3 instigated husband. That attempt to giveunderstanding was made by involving villagers. That thereafter, shewas sent to cohabit with husband. That 5-6 days thereafter, messageof her death was received. That he went to said village and comeacross dead body of Radhabai in the well. That after rituals, helodged report. PW2 Santosh Balu Sasane is son of deceased Radhabai andaccused no.1 husband. He stated that accused no.1 is his father.That accused no.2 is brother of his father and accused no.3 is wife ofbrother of his father. He deposed that his father used to beat hismother. That he used to consume liquor. That on that day, in themorning, his father threw tea on the person of his mother, then shewent to bring water and there she jumped in the well. He deposed {7} CR APPEAL NO. 820 OF 2003that after his father threw tea on the person of his mother, hethreatened to beat her. Therefore, he himself, his younger brotherand his mother went to village Atawada. There his father beat hismother and threatened to beat her. From Atawada, they went tovillage Nachankheda, his maternal uncle’s village. That his fatherfollowed them there. That he again beat his mother. That afterreturning home, while he was sleeping, his father took his mother tothe well. That the next day morning some women saw his mother.That his grandfather arrived in the evening and he claims that he toldhis grandfather that his father ran away after killing his mother. PW3 Lalchand Lahanu Sasane is Pancha to inquestpanchanama. He did not support prosecution. PW4 Dr.Vijay Dinkar Gade is the Autopsy Doctor. Afternarrating the internal and external injuries noted by him, he opinedthat death was due to hemorrhagic shock due to laceration of thebrain, lungs, spleen and kidney. PW5 Waman Khandu Sasane is the Pancha to spotpanchanama. He did not support prosecution. {8} CR APPEAL NO. 820 OF 2003 PW6 Tanaji Karbhari Zade is the Investigating Officer, whonarrated all the steps taken by him during investigation. That afterinvestigation, he chargesheeted accused. ANALYSIS 7. On careful re-appreciation of the evidence, here though asmany as six witnesses are examined, crucial evidence is only ofinformant father PW1 Chagan and his son PW2 Santosh. Sum and substance of PW1 Chagan, informant’s evidence isthat after marriage of his daughter with accused no.1, everything wassmooth for two years but thereafter, after consuming liquor, accusedno.1 beat his daughter; on 10-12 occasions she came and informedhim; shed told him that he suspected her character and therefore,before sending her, a meeting was conducted involving 4-5 influentialpersons of the village to give understanding to the accused. However, in his initial cross-examination, he is unable toanswer which all times and during which year out of nine years’cohabitation, she had come to stay with him because of beating. Heis also found to be admitting that he has no personal knowledgeabout the matrimonial life lead by his daughter at Karjod. The above {9} CR APPEAL NO. 820 OF 2003evidence about consuming liquor and beating, 5-6 days before deathshe leaving father’s house and going to stay with accused only onunderstanding being given in presence of influential persons, isapparently an omission. These are material omissions going to theroot of the prosecution case. 8.Next crucial witness for prosecution is PW2 Santosh and he isson of appellant and deceased and a child witness. It is worth notingthat, while recording his evidence, learned trial Court does not seemto have followed the precedent of putting up preliminary questions toascertain the competence of the child witness to understand thepurport of his evidence in the Court and his capacity to answer thequestions posed to him. Apparently, merely it is noted that child isintelligent to answer rationally and so no oath is administered. Be itso.Before reanalyzing the child witness account, it would beprofitable to reproduce the relevant provisions and also give a briefaccount of the settled legal position on the point of evidentiary valueof a child witness account and manner of its appreciation. 9.Section 118 of the Indian Evidence Act deals with the {10} CR APPEAL NO. 820 OF 2003competence of child witness to adduce evidence. It is primarilyexpected of a Court recording child witness account to first getascertained whether the child understands the questions put to himand give rational answers and it is also further expected of a Court toget satisfied that the child witness account is free from tutoring andis truthful and worthy of credence. This is the fundamental principleto be borne in mind while appreciating child witness account. It is fairly established position that evidence of child witnessmust be evaluated with due care and caution. Though it is not a rulethat Court should seek corroboration before relying on childtestimony, but by way of prudence, supportive evidence should belooked upon. Child witnesses are susceptible and prone to tutoringand so their evidence has to be assessed with caution andcircumspection. When there is material suggesting the child beingtutored, the Court can reject his entire testimony or in part. It is alsoequally settled that if the child testimony inspires confidence, evensole testimony of the child can be taken recourse to to accept the caseof prosecution. However, it all depends on the facts andcircumstances of each case. Legal propositions to the above extent has been enunciated inthe following judgments: {11} CR APPEAL NO. 820 OF 2003Pradeep v. State of Haryana, 2023 SCC OnLine 777; Hari Om Alias Hero v. Stateof Uttar Pradesh, (2021) 4 SCC 345; Pramila v. State of Uttar Pradesh, (2021) 12SCC 550; State of Madhya Pradesh v. Rajaram Alias Raja, (2019) 13 SCC 516;State of Rajasthan v. Madan Alias Madaniya, (2019) 13 SCC 653; Bannareddy v.State of Karnataka, (2018) 5 SCC 790; Panchhi v. State of U.P., (1998) 7 SCC 177.10.In above backdrop and legal requirements, evidence of PW2Santosh is re-appreciated and reevaluated. The substance of histestimony at exh.12 is that, at the time of incident, he was residingwith his parents and younger brother at Karjod. In examination-in-chief, he gave the name of his mother and deposed that his fatherused to beat his mother. That his father used to consume liquor. Onthe day of incident, in the morning, his father threw tea on theperson of his mother, and threatened to beat her. His mother, hehimself and his brother went to village Atawada as his father beat hismother and threatened to beat her. From there, they went to villageNachankheda to his maternal uncle’s place. His father reached therein a Tractor. His father beat his mother there also and they allreturned back to Karjod. He deposed that while he was sleeping, hisfather took his mother to the well. Next day morning, some womensaw his mother. 11.The child is extensively cross-examined. Only relevant cross- {12} CR APPEAL NO. 820 OF 2003examination is dealt and discussed here. He answered that his mother died on Monday. He denied thaton the day of death of his mother, he was in the school throughoutday. He is unable to state what is meant by threat. He admitted thathe used to obey his grandparents and maternal uncle. He furtheranswered that none of his grandparents love him. He is unable tostate how many years back he lost his mother. He answered that hisgrandmother accompanied him to attend the Court but answeredthat she said nothing. In further cross-examination, he answered that he had been towell with his mother, which is a public well. He admitted that onehas to fetch water by standing on the steps inside the well. Heanswered that water was discharged from other tube-well into thewell and also admitted that unless one goes on the steps inside thewell, water cannot be drawn. He admitted that on the day on whichhis mother died, she was fetching water from the well. In further cross-examination, he denied that he falsely deposedthat his father beat his mother after consuming liquor i.e. on the sayof his maternal uncle. He also denied about he falsely deposingregarding his father throwing tea on the person of his mother. Hefurther answered that when his grandfather arrived, he disclosed that {13} CR APPEAL NO. 820 OF 2003his father killed his mother. 12.On carefully re-appreciating and reevaluating the child witnesstestimony discussed above, it is noticed that child claims that hisfather used to consume liquor and beat his mother. It is noticed thathis evidence suggests that one day prior to the incident, after hisfather allegedly threw tea on person of his mother and beat her, theyall went to Atawada and then to Nachankheda at his maternal uncle’splace. According to him, his father reached there also and beat hismother at maternal uncle’s place and brought them back to Karjod.But surprisingly, there is no distinct evidence in this regard. Thematernal uncle to whom they allegedly went that day, is notexamined by investigating machinery and prosecution for the bestreasons known to them so as to accept the version of child regardingfather beating his mother prior to one day of death. He is put upwith grandparents and grandmother brought him to Court. Therefore, in the light of above material, it is unsafe to givecredence to his testimony. 13.Here prosecution does not dispute that at the well there wereutensils and vessels like pitcher and pot. Child admitted that his {14} CR APPEAL NO. 820 OF 2003mother went to fetch water on well. Investigating Officer has alsoadmitted in cross-examination that one pitcher and small containerwas lying near the well. But surprisingly, Investigating Officeranswered that he did not seize the same as according to him, it wasnot necessary. Investigating Officer has also candidly admitted in cross-examination that there is scarcity of water in the village and water isrequired to be extracted from bore well and further let out in the wellby the use of pipe from outside. He admitted that one has to lean totake water. Thus, such circumstances creates possibility of deceasedleaning to fetch water and falling accidentally. Spot panchanama exh.21 carries description of surroundingsof the well as well as its length, breadth, depth till water. The well issaid to be constructed to some extent and there is concrete andangles extending from all sides. 14.PW4 Dr.Gade, Autopsy Doctor has enumerated as many as teninjuries, which are in the nature of CLW to right occipital part,lumbar region, right hand fingers, lower limbs, right foot, left footankle joint and several other abrasions over face, heap, knees, rightfoot, left foot, grazing abrasions on chest, right hand, wrist, palm, left {15} CR APPEAL NO. 820 OF 2003upper arm, back, right scapular and on spinal column etc. After narrating above injuries, Autopsy Doctor in examination-in-chief stated that cause of death was due to “hemorrhagic shockdue to laceration of the brain, lungs, spleen and kidney”. Inparagraph 4 of examination-in-chief itself, Autopsy Doctor hasopined that external as well as internal injuries may be possible byfall from height on some hard and blunt object i.e. if a person fell in afully constructed well having beams, iron angles, projecting outsidefrom RCC. 15.Here as stated above, spot panchanama exh.21 carriesdescription about existence of projections and angles. AutopsyDoctor further opined that sudden death may occur due to externaland internal injuries i.e. before touching the water level. Hereexh.21 indicates depth of water to be 8 to 10 feet only. According toAutopsy Doctor, water will not enter into body if death takes placedue to external and internal injuries while falling. He also deposed inexamination-in-chief itself that he did not find water in theabdominal cavity. Therefore, taking such material into consideration,the case does not appear to be of suicide by jumping. Number andnature of injuries noted by Autopsy Doctor, coupled with {16} CR APPEAL NO. 820 OF 2003circumstances inside the well could be responsible for the multipleinjuries. If suicide is planned to be committed, then a person wouldthrow himself into the water directly. Autopsy Doctor has notattributed death due to drowning. Consequently, in the light of above discussion, there is reasonto hold that Radhabai must have fallen accidentally while fetchingwater. 16.On complete re-appreciation of available evidence, moreparticularly that of PW1 Chagan and PW2 Santosh, material onrecord does not support prosecution version about deceased beingbeaten and only therefore, she getting fed up and deciding to end upher life by jumping in the well.17.PW Zade, Investigating Officer has placed on record Khabarexh.20 i.e. the first information received by Police and the sum andsubstance of the same in translated version is as under. “The informant reported that on 13.06.2002 at 16.15 hrs at thewell at Karjat Grampanchayat, Krishna Manohar Varade, awater supplier, informed and personally verified that the abovedeceased person fell into the well and sunk while filling water” (As translated by Sr. Translator, High Court, Aurangabad) 18.The person, who reported about a lady falling in the well while {17} CR APPEAL NO. 820 OF 2003fetching water, namely Krushna Manohar Warade, is also surprisinglyneither examined by Investigating Officer nor made witness in theCourt, for the best reasons known to the prosecution. It apparentlyseems an attempt to hold back material witness. It amounts tosuppression of material evidence and therefore, adverse inferencealso deserves to be drawn against prosecution. SUMMATION19.To sum up, here prosecution has not established beyondreasonable doubt that there was consistent harassment or mal-treatment to deceased and resultantly getting fed up of the incessantcruelty mated out to her, she committed suicide by jumping in thewell.The facts in the case Ijaj Ahmad Riyaz Ahmed Qureshi andOthers (supra) relied on by the appellant and facts in the case inhand are quite distinguishable and cannot be applied to the presentcase. 20.Perused the judgment under challenge. Learned trial Judgehas apparently relied only on the examination-in-chief of PW1Chagan and PW2 Santosh. Answers given by informant PW1 Chaganin cross-examination does not seem to have been appreciated and {18} CR APPEAL NO. 820 OF 2003considered. Child’s witness account has not been approached andappreciated cautiously and carefully. Even the settled law, whileappreciating child witness testimony, has not been taken into accountand findings seem to have been arrived at by the learned trial Court.Therefore, it is a fit case to interfere by allowing the appeal.Accordingly, I proceed to pass following order : ORDERI)Criminal Appeal No.820 of 2003 is allowed.II)The conviction awarded to appellant Balu Raghu Sasanein Sessions Case No.105 of 2002 by the learned II Ad-hoc Additional District Judge and Asstt. Sessions Judge, Jalgaonon 09-12-2003 for the offence punishable under Sections 498-Aand 306 of the Indian Penal Code, stands quashed and set aside.III)The appellant stands acquitted of the offence punishableunder Sections 498-A and 306 of the Indian Penal Code.IV)The bail bond of appellant stands cancelled. V)The fine amount deposited, if any, be refunded to theappellant after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. ( ABHAY S. WAGHWASE ) JUDGE SPT