Vijay Mokale vs The State Of Maharashtra

Instant appeal is directed against Judgment and order dated 19-11-2016 rendered by learned Additional Sessions Judge, Vaijapur in Sessions Case No.17 of 2015 convicting appellant for offence under Sections 498-A, 306, 323 of the Indian Penal Code (IPC).

Prosecution was launched against present appellant on accusations that, after marriage with Kavita, he treated her properly for two years, but thereafter he took to liquor, kept a mistress and even taunted to deceased. That, he also assaulted her. That, deceased used to telephonically inform to his mother informant and other family members that husband as well as in-laws assaulted her. Getting fed up of said maltreatment, Kavita jumped in the well and committed suicide. On report to that extent by informant mother Exhibit 26, crime was registered, duly investigated by PW13 Investigating Officer and after gathering sufficient evidence, husband and parents-in-law of deceased were chargesheeted and even tried by learned Additional Sessions Judge, Vaijapur, who convicted appellant husband and was pleased to acquit parents-in-law. Hence, appellant husband now taken exception to Judgment of conviction by filing instant appeal.

Learned counsel for appellant would submit that, there is false implication. According to him, charges are not proved beyond reasonable doubt. That, allegations are vague and non-specific. That, evidence of witnesses are full of material omissions and contradictions. He specifically pointed out that, by virtue of order of this Court dated 18-04-2016 passed in Writ Petition No.543 of 2016, re-examination of relevant witnesses including minor was permitted and was also undertaken, wherein it has clearly come that whatever was stated in examination-in-chief, was material omission and contradiction. However, learned trial Court precisely failed to consider and appreciate said answers given in cross-examination and proceeded to convict the accused husband. Therefore, it is his submission that, impugned Judgment is perverse and illegall. He took this Court through evidence of prosecution witnesses and would submit that, their testimonies do not inspire confidence. That, necessary ingredients for attracting the offence are not available in their evidence, but still conviction has been rendered and relying on following rulings and Judgments of the Hon'ble Supreme Court and this Court, he prays to interfere by allowing the appeal.

Per contra, learned APP would support the Judgment of conviction. Learned APP also took this Court through evidence of informant, child witnesses, sister, father of deceased and he would submit that, they all are consistent about maltreatment. That, accused had bad vices and he also kept mistress and he, therefore, maltreated deceased, as a result of which, she committed suicide. He pointed out that, there was injury to the head of deceased and therefore, taking the same into account, learned trial Court has also convicted appellant for offence under Section 323 of the IPC. Resultantly, supporting impugned Judgment to be legal and correct, he prays to dismiss appeal for want of merits

PW1 Hirabai Rokde, informant and mother of deceased, in her evidence at Exhibit 25 deposed about marriage of her daughter with accused in 2004 and proper treatment for initial two years. According to her, thereafter, accused kept a mistress, got addicted to liquor and he also taunted her daughter on her complexion. That, he also drove her out of house. That, her daughter, on telephone, used to inform about assault and ill treatment. That, once in the evening time, accused husband told this witness that Kavita was missing and then from one Anna Badoge, she learnt that Kavita had fallen in the well and so she approached Shillegaon Police Station and lodged complaint, which she identified at Exhibit 26.

In cross-examination she denied that her daughter repeatedly visited her and that she was being repeatedly called. She admitted not filing complaint prior to 2010. She admitted that, accused had irrigated land. She admitted that, her daughter as well as accused were cultivating the land. Except admission that marriage was settled with mutual consent, rest is all denial.

It appears from the record that by virtue of order dated 18-04-2016 passed by this Court in Writ Petition No.543 of 2016, witness was recalled for further cross-examination and in the same, she admitted about not informing Police that, accused had kept a mistress, about Anna telling her to send her daughter and he assured that her daughter would be properly treated. Omission is brought to the extent that, before about one year when she called her daughter, she told that husband and accused in-laws assaulted her and that in the night time, there were telephonic talk. She is unable to state why above portion is not appearing in her complaint.

PW2 Kachru Sakharam Navgire is the pancha to inquest panchanama Exhibit 28, which is not disputed.

PW3 Prachi is the daughter of accused and deceased and a child witness and she in her evidence at Exhibit 30 deposed that, in the evening of 16-10-2014, her father came home drunk, abused and assaulted her mother due to Meerabai. That, while they were sitting on platform, father assaulted her mother by means of grinder on the head as a result of which her mother fell. She deposed that, her father pulled her mother under tamarind tree and abused in filthy language. That, fed up with such ill treatment from husband and in-laws, her mother jumped in the well. She stated that, her father tutored and so she told police that they have done nothing. She further deposed that, previously also her father assaulted her mother and he used to say that he is of short height and he disliked her.

While under cross-examination, she admitted that she came with maternal uncle. She denied being tutored by him. Rest all was denial.

Record shows that again by virtue of order dated 18-04-2016 passed by this Court in Writ Petition No.543 of 2016, child witness was further cross-examined wherein she answered that she had not told Police that due to Meerabai, her father assaulted her mother. She admitted not telling that, at the time of assault, she was sitting in front of house on platform. Omission is brought to the extent that her father assaulted her mother with grinding stone on the back side of head. She admitted not stating that mother had fallen down and father had pulled her towards tamarind tree. Further omissions are brought on the point that due to ill treatment of accused, her mother jumped in the well and that her father was ill treating her mother as she was of less height.

PW4 Yash, brother of PW3 and son of appellant and deceased at Exhibit 31 deposed that his father did no job and assaulted his mother as she was not good looking, and that he consumed liquor. He used to visit Meerabai. That, all three accused assaulted his mother. That, incident happened on 16-10-2014 during which there was scuffle between his parents and his father beat her mother and he pulled his mother towards tamarind tree. Her mother got rescued from the hands of accused and jumped in the well.

While under cross-examination, he also admitted that he had come with his maternal uncle. Again he answered that mother herself ran and jumped in the well.

Even this witness was further cross-examined by virtue of order dated 18-04-2016 passed by this Court in Writ Petition No.543 of 2016 and this time he answered that he told Police that his father was not doing any job, his father said to his mother that she was not good looking and his father assaulted her. He admitted not telling that father used to meet Meerabai and that all accused assaulted his mother. He admitted not telling that father dragging her mother by pulling her hairs towards tamarind tree. He is unable to state why Police has not mentioned above facts in the statement.

PW5 Raju, cousin brother-in-law of deceased at Exhibit 34 deposed that, for initial 2 years, there was proper treatment to Kavita. According to him, accused was habituated to prostitution, he consumed liquor and beat Kavita and he used to taunt her on her complexion. He claims that, twice she came to him and after mediation, she was again sent for cohabitation. He claims that In 2014, in the evening, he learnt about her fall in the well.

While under cross-examination he is unable to state when Kavita told him that accused husband was habituated to prostitution. He is also unable to state when previous complaint was filed. Rest is all denial.

PW6 Sunita, cousin sister of deceased deposed at Exhibit 36 that after two years of marriage, ill treatment was started. That, Kavita was ill treated on the grounds of not doing work properly and on her complexion. That, accused husband used to consume liquor and ill treat Kavita and that, accused husband habituated to prostitution. That, Kavita was being assaulted and abused. That, on 26-03-2014, Kavita was driven out of house and children were kept with accused and Kavita had come to her. That, report was lodged with Shillegaon Police Station. That, thereafter, for about one month, Kavita was residing with her father. That, again Kavita came to her and then accused husband visited her house alongwith mediator Bhadole and took Kavita with him and he assured about better treatment to Kavita. That, on 16-10-2014, she got information that Kavita fell into well. While under cross-examination, Omissions are brought regarding Kavita after residing with her father for some days, Kavita again came to her and there, accused husband visited her house with mediator and took Kavita with him by assuring better treatment to her.

PW7 Sunil, brother of deceased deposed at Exhibit 39 that, accused did no job and he was asking money from his sister. That, he used to abuse and assault her and he used to ask to bring money for manure and sowing. He also demanded money for liquor and household expenses. He taunted his sister on her looks. On 26-03-2014 in-laws assaulted his sister and drove her out of the house of which complaint was filed by her at Shillegaon Police Station. That, she was again taken back for cohabitation on assurance of proper treatment. That, on 16-10-2014 he learnt from his sister that there is dispute going on with her husband and in-laws. Thereafter, enquiry was made by accused Vijay regarding whereabouts of Kavita and later it was learnt that his sister was fallen in the well. He claims that after the funeral, he questioned the children as to what had happened on that day and the children allegedly told that there was quarrel between mother and father and mother was assaulted by kicks and fists blows and accused had demanded money. According to him, accused repeatedly ill treated his sister and he abetted her to commit suicide. While under cross-examination, she admitted that, she is unable to state when his sister told him about ill treatment. He admitted that prior to marriage, his sister was not habituated to agricultural work. He admitted that, there is well in their land but there is no electric motor. He admitted that, marriage was performed mutually. Rest is all denial.

PW8 Prakash Jadhav is the Police Station Officer, who noted N.C.

PW9 Kakasaheb is the father of deceased and he in his evidence at Exhibit 44 deposed that, for 2 years there was proper treatment, but later on accused husband was habituated to prostitution and liquor and he repeatedly demanding money, ill treated his daughter, assaulted her by taunting on her complexion. That, they used to give money to accused and accused used to ask them to sell the land. That, on 26-03-2010 accused assaulted his daughter and she had filed complaint. After one month, she went to cohabit as accused assured to treat her properly. That, for some days, she was treated properly but again she was assaulted. That, he learnt from Vijay that Kavita is not at home and therefore, she was searched and later on phone was received that Kavita had jumped in the well. He also claimed that the children fo Kavita told that accused husband assaulted Kavita and due to said ill treatment, Kavita died. While under cross-examination, he is unable to state when Kavita told him about ill treatment. He is unable to tell the date of demand of money. He admitted not reporting Police about occurrence dated 26-03-2010 and admitted not filing complaint against accused during life time of Kavita. He admitted knowing economical condition of each other. He answered that after one day of the incident, he learnt from children that accused assaulted Kavita. Rest is all denial.

PW10 Hiralal is the pancha to spot panchanama.

PW11 Vitthal is the acquaintance but he did not support prosecution.

PW12 Dr.Pramod Madhukar Alhad is Autopsy Surgeon, who opined death due to drowning.

PW13 Nimish Madhavrao Mhetre is the Investigating Officer, who narrated about all steps taken during investigation.

After hearing above submissions and on going through record as well as above evidence, it is emerging that there is no dispute that deceased Kavita was married with present appellant in 2004. Allegations are that after 2 years of marriage, accused kept a mistress and in that backdrop, he beat Kavita. PW1 Informant mother does not speak about appellant habituated to prostitution, which is stated by PW4 cousin brother-in-law, PW6 cousin sister and PW7 real brother of deceased PW9 father of deceased. Therefore, witnesses are not consistent on this count. Infact though informant has deposed that about one year back when she called her daughter, she told that husband had assaulted her, it is found to be an omission.

Similarly, though PW5 brother-in-law deposed that accused was habituated to prostitution and he used to consume liquor and beat Kavita and though he claims that she twice came to him, in cross-examination, he is unable to state when she came to him and told him about addiction and beating.

Similarly, PW6 cousin sister of deceased seems to have a very different version as she deposed that there was ill treatment for not doing work properly, which is even not accusation by informant mother or father of deceased. In her cross-examination paragraph 2 omission is brought about Kavita coming to their place, mediation taking place and he telling father of Kavita to file complaint. She is also unable to state when she learnt about ill treatment.

Again PW7 real brother seems to have different narratives as according to him, accused did no job. Infact parents have admitted that accused was doing agriculture work and even deceased Kavita had joined him in such activities. He claims that, accused demanded money from his sister and they used to provide money accordingly, but this is not stated by informant mother. His version is also different from others on the count that, accused demanded money for household expenses. Neither of the parents of Kavita deposed to that extent. Even regarding assault by parents-in-law as stated by him, is not stated by other witnesses. Therefore, on several counts, above discussed prosecution witnesses are not consistent.

PW7 brother and PW9 father of deceased both speak of learning from children of accused and deceased that accused assaulted deceased. Therefore, apparently though they have hearsay information, there is also evidence of both the children of deceased i.e. PW3 and PW4 who are examined at Exhibit 30 and 31 respectively. Though they both deposed that in their presence their father assaulted their mother by means of grinding stone, stone is apparently not seized. No doubt in their examination-in-chief they both did depose that their father abused their mother in filthy language, dragged her by pulling her hairs towards tamarind tree, and their mother jumped in the well, as pointed out, in the initial cross-examination, they have simpliciter denied that they were tutored. However, on orders of this Court, when they again faced cross-examination, material omissions and contradictions are brought in their testimonies on 30-06-2016 about father assaulting mother due to Meerabai, they sitting on the platform and in their presence seeing assault by father, their mother falling down, she being pulled by catching her hairs and only due to ill treatment, their mother jumped in the well. Apparently thus, both child witnesses seem to have improvised their story in examination-in-chief, which is shown to be material omissions in their cross-examination which even PW13 Investigating Officer admits.

In order to attract offence under Section 498-A of the IPC, it is incumbent upon prosecution to demonstrate the following essential ingredients.

As regards to offence of abetment is concerned, there is nothing to show, except testimonies of child witnesses, which appear to be improvised one and also full of material omissions, to hold that accused abetted the suicide. Though child witnesses speak about assault to their mother by means of grinding stone, the same is not seized.

Learned counsel for appellant pointed out that infact prior to lodging of report by their mother, statements of child witnesses were recorded, but as nothing incriminating was therein, there is suppression to that extent. Learned counsel invited attention of this court to the cross-examination of PW13 Investigating Officer recorded on 03-09-2016 and would submit that, learned trial Court has failed to consider and appreciate the material omissions proved through PW13 Investigating Officer.

Indeed on going through the cross-examination of PW13 Investigating Officer recorded on 03-09-2016, it appears that he has admitted that daughter PW3 Prachi had not stated that her father assaulted her mother by grinding stone nor had she stated that due to ill treatment at the hands of accused husband, her mother jumped in the well and she had also not stated that prior to incident, her father assaulted her mother and taunted her on her looks.

PW13 Investigating Officer also admitted that PW4 Yash had not stated that his father did no job and his father taunted on looks of his mother and used to assault in that backdrop. Investigating Officer admits that PW4 has also not stated that there was fight between his parents on 18th. Investigating Officer denied that there was suppression of statements of children as they were favouring accused.

Consequently, what is emerging from above evidence is that even in proximity to alleged suicide dated 16-10-2014, there is no convincing material to attribute any positive role to the accused husband in abetment of suicide by Kavita. There is nothing to show that he instigated or induced her to end up her life. Therefore, even to attract charge of Section 306 of the IPC, there is weak evidence. Apart from this, the charge of Section 323 of the IPC is also not cogently proved.

After going through the impugned judgment, as pointed out, it is emerging that learned trial court has failed to appreciate and discuss the cross-examination of witnesses, more particularly child witnesses, which is heavily relied by learned trial court for recording guilt, which is subsequently recorded by virtue of order of this Court. Resultantly, there is incorrect appreciation and non-consideration of material evidence. Hence, interference in the impugned Judgment and order is called for. Accordingly, following order is passed :