Ananda Baban Kokate and Others vs The State of Maharashtra

V.M. Deshpande, J.—By the present Appeal, appellants, who are original accused Nos. 1 and 2, are challenging the Judgment and Order of conviction dated 09/10/2000 passed by the learned 2nd Additional Sessions Judge, Ahmednagar in Sessions Case No. 111/1998.

Appellants will be referred to by their original position. Appellant No. 1 Ananda Baban Kokate is accused No. 1. Appellant No. 2 Baban Kashinath Kokate is accused No. 2. Accused No. 2 is father of accused No. 1.

Accused No. 1 Ananda Baban Kokate was convicted for the offence punishable u/s. 498-A of the Indian Penal Code and for that he was directed to suffer Rigorous Imprisonment for three years and to pay fine of Rs. 2000/- and in default to undergo Simple Imprisonment for four months. He was also convicted for the offence punishable u/s. 306 of the Indian Penal Code and on that count it was directed that he should undergo Rigorous Imprisonment for seven years and to pay fine of Rs. 2000/- and in default to undergo Rigorous Imprisonment for six months.

Accused No. 2 Baban Kashinath Kokate was convicted for the offence punishable u/s. 498-A of the Indian Penal Code and for that he was directed to suffer Rigorous Imprisonment for three years and to pay fine of Rs. 2000/- and in default to undergo Rigorous Imprisonment for four months.

On account of his conviction u/s. 306 of the Indian Penal Code, it was directed that he should undergo Rigorous Imprisonment for ten years and to pay fine of Rs. 2000/- and in default to undergo Rigorous Imprisonment for six months.

In the present Appeal, appellants were represented by Mr. Satej S. Jadhav, learned counsel, whereas State was represented by Mrs. S.G. Chincholkar, learned A.P.P. With the assistance of both the counsel, I have gone through the record and proceedings.

Prosecution case is as under:--

"Laxman Namdeo Pansare [P.W.4] is the father of deceased Asha. Her marriage was performed with accused No. 1 Ananda on 26/05/1997. According to the prosecution, Asha committed suicide by consuming poison. Complaint [Exh. 38] was lodged with police station Parner by Laxman Namdeo Pansare [P.W.4]. It is dated 13/06/1998. As per the Complaint, in the month of December, 1997, marriage of Tukaram, son of the complainant took place. That time, accused No. 1 Ananda demanded Locket and dress and also raised suspicion over the character of Asha and in presence of all the relatives, she was assaulted at the hands of accused No. 1 Ananda. She was taken to her matrimonial house. However, that time also, she was assaulted. According to the Complaint, thereafter Asha came in her parental house and stayed there for two months. Thereafter, compromise took place in between the parties and Asha again started cohabiting in her matrimonial house. On 13/06/1998, complainant received phone call that Asha took drug and, therefore, she expired. After postmortem, funeral took place. According to the complaint, after some time, Ganesh Shankarrao Jadhav [P.W.5] handed over one chit to him, in which it is stated that the father-in-law [accused No. 2] is having bad eye on her and accused No. 1 is also not listening. Therefore, as per the said chit, she should be taken away. Thus, according to the Complaint, accused persons, including the acquitted accused, instigated Asha to commit suicide."

Raosaheb Abaji Gavade [P.W.8], police head constable B. No. 1239, on 13/06/1998 was attending his duty as Police Station Officer at police station Parner. On the said date, Laxman Namdeo Pansare [P.W.4] approached him for filing Complaint. He recorded the Complaint [Exh. 38] as per the version of the complainant. He thereafter registered Crime No. 104/1998. He handed over the investigation to Dinkar Bhika Gaidhani [P.W.9]. After completion of investigation, he filed charge sheet before the Court of law.

After the case was committed to the Court of Sessions, learned Additional Sessions Judge framed Charge against accused Nos. 1 and 2 and acquitted accused Bhimabai, mother-in-law of deceased and Laxmibai, sister-in-law of deceased.

In order to bring home the guilt of the accused persons, prosecution examined in all ten witnesses and also relied upon various documents, which were duly proved during the course of the trial.

After full dressed trial, learned 2nd Additional Sessions Judge, Ahmednagar acquitted original accused No. 3 Bhimabai and accused No. 4 Laxmibai from all the offences, however convicted accused Nos. 1 and 2 as observed in the opening paragraph of this Judgment.

From the evidence, as appearing in the prosecution case, entire prosecution case revolves around the evidence of Laxman Namdeo Pansare [P.W.4], Ganesh Shankarrao Jadhav [P.W.5] and the ''note'' [Exh. 68].

From the Complaint [Exh. 38], after six months of Asha''s marriage, all the accused persons used to ask permission from her for the second marriage of accused No. 1 Ananda. In December, 1997 marriage of Tukaram, son of the complainant, took place. According to the Complaint, that time accused No. 1 demanded Locket and dress and also assaulted Asha in presence of all the relatives by taking suspicion over her character.

From the Complaint, prior to marriage of Tukaram, deceased was subjected to cruelty for demand of money and also for permission of second marriage of accused No. 1 Ananda. However, it is to be noted that the learned Judge of the Court below himself has discarded the said case of the prosecution. Learned Judge has also observed that the prosecution has not proved beyond reasonable doubt in respect of the illtreatment prior to the marriage of Tukaram.

Powers of the appellate Court u/s. 386 are wide enough. However, from the evidence, as available in the prosecution case, I see no reason to disturb the said finding of fact.

Learned trial Court has also not believed the prosecution case in respect of the compromise that took place according to the Complaint.

Further, it is really hard to believe that accused No. 1 Ananda will assault deceased Asha in presence of her relatives. What is important to note is that the matter was not reported to the police. In the marriage ceremony, if the girl is assaulted in presence of relatives, father, brother and other relatives of said girl will keep mum, is very hard to digest. Therefore, in my opinion, prosecution has utterly failed in respect of the said aspect, which goes to the root of the prosecution case.

Further, though it is the version of Laxman Namdeo Pansare [P.W.4], father of the deceased, that after the period of six months, she was illtreated on the ground of her character. He was unable to assign any reason as to why the said fact was not appearing in the Complaint. From the witness box, Laxman Namdeo Pansare [P.W.4] has stated that Asha resided with them for about two months. Thereafter, compromise took place and it was decided to reduce the same on the stamp. Relevant portion, as appearing in the Examination-in-Chief, can be narrated herein under:--

"The accused called us and told that they were ready to execute the stamp, if desired by us. The accused came to our village and they also brought stamp. Accused Nos. 1 and 2 executed the stamp. On execution of the stamp, they took Asha."

If the aforesaid version is to be believed, it was expected from the prosecution to produce the said writing on stamp on record. Since the compromise took place and it was reduced into writing, non production of the said document on record requires drawing of adverse inference against the prosecution.

Another evidence is of Ganesh Shankarrao Jadhav [P.W.5]. Deceased Asha was daughter of this witness'' father''s sister. According to the version of this witness, on 11/06/1998, after compromise, he along with Asha and accused Nos. 1 and 2 proceeded to the village of Asha. They proceeded by S.T. Accused No. 1 alighted from the bus at village Takli. Deceased Asha, accused No. 2 and this witness reached in the house of accused at about 10.30 - 11.00 p.m. House of the accused consisted two rooms. Asha and this witness slept in the inner room near each other. According to the evidence of this witness, after half an hour, accused No. 2 came and sat near the bed of Asha. He was there for half an hour. According to this witness, Asha got frightened and she slept facing to his side. In the morning, Asha asked accused No. 1 as to why her father-in-law sat near her. As per the version of this witness, that time accused No. 1 gave slap to Asha and asked Asha why she was suspicious.

It is the further version of this witness Ganesh that after the breakfast in the morning, both accused No. 1 and Ganesh went to the village to have round, though it was resisted by Asha. After returning to the house, she handed over one chit to Ganesh. According to the evidence of this witness, Asha told him that he should not read this chit and should hand it over to her father. As per the version of this witness, deceased told him that when she had gone to take bath, her father-in-law had been there. On the next day, he returned to his village.

If the version of this witness is to be believed, deceased Asha has narrated a serious fact to him, which has disturbed her mind. It appears from his evidence that this witness accompanied Asha after the compromise took place at the parental house of Asha, that fact demonstrates that Ganesh Jadhav [P.W.5] was man of confidence of Asha as well as her father Laxman, otherwise he would not have sent accompanied Asha. Natural re-action of this witness would have been to narrate immediately to Laxman Namdeo Pansare [P.W.4] as to what he has seen in the matrimonial house of Asha and what was narrated to him. Keeping mum, speaks volumes in respect of the conduct of witness Ganesh. Further, as per Ganesh, Asha asked him to hand over the chit to Tatya i.e. her father. She specifically asked not to read the said chit till it is handed over to Tatya, meaning thereby the chit contains important writing. Still, said chit was not handed over by Ganesh to Laxman Namdeo Pansare [P.W.4] till the funeral of deceased took place.

Further, even as per the evidence of Ganesh Jadhav [P.W.5], in the night when Ganesh was present in the house of Asha, accused No. 2 came and sat near the bed of Asha. Even as per Ganesh, that time he was sleeping along side of Asha. It is not the version of Ganesh that any misdemeanor was made by accused No. 2. Further, it is hard to believe that for committing any wrong, accused No. 2 will come and sat on the bed of Asha when her brother is sleeping aside her. This particular aspect can not be treated as an instigation to commit suicide, as claimed by the prosecution.

Further, chit [Exh. 68] is available on record. After reading the said chit also, it is clear that it is really hard to believe that it amounts to instigation on the part of the accused persons. As observed in preceding paragraph, delay in producing the said chit is fatal to the prosecution.

Upshot of the aforesaid leads me to pass the following order.

"(i) Present Criminal Appeal is allowed.

(ii) Judgment and Order of conviction dated 09/10/2000 passed by the learned 2nd Additional Sessions Judge, Ahmednagar in Sessions Case No. 111/1998 is hereby quashed and set aside.

(iii) Appellant No. 1 Ananda Baban Kokate and Appellant No. 2 Baban Kashinath Kokate are acquitted of the offences punishable u/s. 498-A and 306 of the Indian Penal Code.

(iv) Bail bonds of the appellants stand cancelled.

(v) Fine amount, if any, paid by the appellants, be refunded to them."