Sudhir Waman Bhosale v. The State Of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE CRIMINAL APPEAL NO.1219 OF 2007 Mr.Sudhir Waman Bhosale, aged 57 years, residing at Jairam Smriti, Ramchandra Pawaskar Road, Dahisar Gaothan, Dahisar (W), Mumbai - 400 068.

...

Appellant V/s.

The State of Maharashtra (at the instance of MHB Colony Police Station, Mumbai).

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Respondent .....

Mr.M.K.Kocharekar, Advocate for the Appellant. Mr.Deepak Thakre, APP for the Respondent/State. ....

CORAM :

ABHAY M. THIPSAY J.

DATED :

29TH JULY 2015 ORAL JUDGMENT :

1.

This appeal is directed against the Judgment and Order dated 19/09/2007 passed by the Additional Sessions Judge, Mumbai in Sessions Case No.833 of 2006 convicting the appellant, who was the accused in the said case, of offences punishable under Section 306 and Section 498A of the Indian Penal Code (For short, "the IPC). The learned Additional Sessions Judge sentenced the appellant to suffer Rigorous Imprisonment for seven years and to pay a fine of Rs.1,000/- with respect to the offence punishable 1/7

under Section 306 of the IPC and Rigorous Imprisonment for two years and to pay a fine of Rs.500/- with respect to the offence punishable under Section 498A of the IPC. The learned Additional Sessions Judge directed that the sentences would run concurrently.

Being aggrieved by his conviction and the sentences imposed upon him, the appellant has approached this Court by filing the present appeal.

2.

The appellant has passed away during the pendency of the appeal. However, since the sentences imposed upon him are also of fine, the appeal does not abate. It would be necessary to decide the legality, propriety and correctness of the conviction of the appellant and the sentences imposed by him, notwithstanding the death of the appellant.

3.

I have heard Mr.M.K.Kocharekar, the learned counsel for the appellant. I have heard Mr.Deepak Thakre, the learned Additional Public Prosecutor for the Respondent/State. With their assistance, I have gone through the entire evidence adduced during the trial. I have also carefully gone through the impugned Judgment.

4.

On 26/06/2006, the wife of the appellant -Suchitracommitted suicide in the matrimonial house by hanging herself. 2/7

She had not left any suicide note stating the reason for which, and the circumstance in which, she had taken that extreme step. After the death of Suchitra, the appellant's daughter Supriya, aged about 25 years, lodged a report with the police alleging that her mother was being treated with cruelty by the appellant and that due to the torments caused to her by the appellant, she had committed suicide. On the basis of this report, a case was registered against the appellant, investigation was carried out, and on completion thereof, appellant was prosecuted and convicted, as aforesaid.

5.

The prosecution examined nine witnesses during the trial. Supriya (PW1) the daughter of the appellant and Sameer (PW5) the son of the appellant were examined during the trial. Rashmi Bhosale -wife of the nephew of the appellant, was examined as the second witness for the prosecution. One Mahendra Mhatre the landlord of the appellant has been examined as the third witness for the prosecution. The fourth witness Kamlakar Mhatre is a person residing in the neighbourhood of the appellant. The sixth witness Ajit Bhosale is the nephew of the appellant. The seventh witness Dr.Manohar Mondkar is the one, who had examined Suchitra on 26/06/2006 in the house of the appellant and had found her dead. The eighth witness Prakash Bane is a Sub-Inspector of Police, who was attached to the MHB Colony Police Station, at the material time. 3/7

He had visited the spot of the incident on 26/06/2006 on learning about the suicidal death of Suchitra. He had also recorded the First Information Report made by Supriya. The ninth witness is Dr.Kiran Kalyankar, who had carried out the postmortem examination on the dead body of the Suchitra. He gave the probable cause of death as, 'asphyxial death due to hanging'. 6.

Mr.Kocharekar submitted that there was absolutely no evidence to prove the allegation of cruelty. He submitted that Suchitra had committed suicide about 25 years after the marriage and, therefore, the presumption under Section 113A of the Indian Evidence Act was not applicable to the facts of the present case. He also submitted that the assertions about the ill-treatment allegedly given by the appellant to the deceased are too general and vague. He also submitted that the evidence of Supriya and Sameer is not consistent. According to him, therefore, the appellant should have been acquitted.

7.

I have carefully gone through the evidence of Supriya, who, as aforesaid, is the daughter of the appellant. There can be no doubt that Suchitra indeed committed suicide by hanging herself. However, the evidence of Supriya does not show any specific instances of the alleged cruel treatment given by the appellant to Suchitra. It is stated that the appellant used to suspect the character of Suchitra and, therefore, used to harass her 4/7

'since about 10 to 12 years before the incident'. It was also stated by Supriya that the appellant used to pay meagre amount to Suchitra to meet the household expenses. Similar is the version of Sameer (PW5). In the cross-examination of these witnesses, however, it has been brought on record that they were leading a normal life. Both used to go to different tuition classes. The fees of the said tuition classes were being paid. The appellant was getting a monthly salary of Rs.4,500/-. The evidence reveals that the appellant's family including the deceased Suchitra used to celebrate festivals in a normal way.

8.

According to Supriya, a day prior to the suicide of Suchitra, there had been a quarrel between the appellant and Suchitra. She, however, had not given the details of the quarrel. 9.

Mahendra Mhatre (PW3), who is the landlord of the accused did speak about the quarrels between the appellant and the deceased, but the cause for the said quarrels as given by him is totally different.

10.

The evidence of Kamlakar Mhatre (PW4), inter alia, shows that the deceased was happy, and that she used to participate in festivals.

11.

After going through the evidence adduced during the trial, I do not find that any specific instances of alleged cruel 5/7

treatment meted out to the deceased by the appellant were given by any of the witnesses. It is, however, a fact that the deceased did commit suicide and there is no dispute on this. The learned Additional Sessions Judge has come to the conclusion of cruelty having been proved basically because the deceased had committed suicide. Thus, his conclusion about the deceased having been treated with cruelty by the appellant was based largely on the fact that the deceased indeed committed suicide.

12.

In my opinion, when the evidence was lacking any specific instances of cruelty, it was dangerous to arrive at such a conclusion only from the fact that the deceased committed suicide. This is particularly so, because the suicide had been committed after more than 25 years from the marriage.

13.

In my opinion, this was a case where the prosecution had failed to prove the guilt of the appellant beyond reasonable doubt. The appellant, therefore, should have been acquitted. 14.

The appeal is allowed.

15.

The impugned Judgment and order of conviction is set aside.

16.

The appellant is acquitted.

6/7

17.

Five, if paid, be refunded to his heirs and legal representatives.

(ABHAY M. THIPSAY J.) 7/7