GANGADHAR TRAMBAK BHAMRE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal takes exception to the Judgment and order passed by the First Ad-hoc Additional Sessions Judge, Nashik dated June 21, 2002 in Sessions Case No. 143 of 2001. The appellant was charge-sheeted and tried for offence punishable under section 498 (A) as also section 302 of indian Penal Code on the allegation that he was responsible to cause death of his wife Kalpana @ Sunanda @ Sunita and for inflicting cruelty on her for not fetching amount as demanded by him, from her father, to enable him to settle debts, which were taken at the time of undertaking construction of his house.

(2.) The incident in question occurred on the night of 14th July, 2001 at about 9 p. m. At the relevant time, besides the appellant and his wife Kalpana their daughter Bharati (P. W. 3) , who is a child witness about 14 years of age, was present in the house. It is alleged that daughter Bharati (P. W. 3) rushed to her mother after hearing shouts of her mother and noticed that one kitchen knife was seen inserted in her belly. She attempted to remove the same but could not succeed. According to this witness, title appellant was sitting in another room and later came near Kalpana and helped in taking out the knife. Kalpana succumbed to the injury caused on account of knife blow. The prosecution case is that the said knife blow was inflicted by the appellant. However, the appellant's defence was that deceased Kalpana inflicted that wound herself and attempted to commit suicide, as she was suspecting that the appellant was having illicit relation with their neighbour Sangita who happened to be of the age of their daughter. Police arrived on the scene of offence on the basis of information received. After the police received the information regarding the incident, they gave intimation to the police-patil of village Tamkhed where the father of deceased was residing. It may be relevant to note here that the parties are closely related to each other. The deceased, who was the wife of the appellant is the daughter of maternal uncle of the appellant. The father of the deceased (P. W. 2) accordingly, reached on the scene along with other family members and friends. It is his case that on noticing the dead body of deceased Kalpana, he became sick and was required to take medicine. From the prosecution case it is seen that formal First Information report (FIR) regarding incident came to be registered on the next day with the local police station at the instance of P. W. 2-father of the deceased. In the First information Report (FIR) , it is alleged that the appellant had demanded the amount to enable him to complete construction work. That amount was paid to the appellant. However, the appellant demanded further amount which could not be arranged and on that account the appellant out of anger due to some exchange of hot words between the appellant and his wife deceased Kalpana, inflicted knife blow to Kalpana, to which iinjury she succumbed. On the basis of FIR, investigation commenced. Investigating Officer is stated to have recorded statement of about 20 persons, which formed part of the charge-sheet. Eventually, charge-sheet came to be filed and the appellant was charged for the offences punishable under sections 302 and 498a of Indian Penal Code and tried for the said offences. The trial Court on the basis of the evidence, accepted the prosecution case that the appellant caused death of Kalpana by inflicting wound by knife blow, which was fatal and Kalpana succumbed to the said injury. The lower Court has also accepted the prosecution version that the appellant committed the said offence as the demand of the appellant to pay further amount was not complied, on account of which there was exchange of hot words between the appellant and his wife Kalpana on the fateful night before the appellant gave the knife blow. The trial Court has also considered the defence case as put to the child witness that there was discordant relation between the appellant and deceased Kalpana on account of the fact that the appellant was having illicit relation with their neighbour Sangita who was of the same age of their daughter. This defence has been rejected by the trial Court. On analysing evidence on record, the trial Court proceeded to record finding of fact that the appellant was responsible for causing murder of deceased Kalpana. The trial Court however, then proceeded to observe that there was no intention of the appellant to cause such death and on that basis convicted the appellant for the offence punishable under section 304 (1). The trial Court has also convicted the appellant for the offence punishable under section 498a of Indian Penal Code. On this finding, the trial Court, by the impugned Judgment ordered that the appellant shall undergo sentence of rigorous imprisonment for seven years and to pay fine of Rs. 500/-i. d. to suffer R. I. for two more months for the offence under section 304 (1) and additionally sentenced to suffer R. I. for one year and to pay fine of Rs. 500/- i. d. R. I. for two more months for offance under section 498a of Indian Penal Code. The trial Court has further ordered that both the substantive sentences shall run concurrently. This decision is subject-matter of challenge in the present appeal. It is common ground that the State has not challenged the finding of the trial Court holding the appellant guilty for offence under section 304 (1) , instead of section 302 of Indian Penal Code. The trial Court has given tangible reasons to take that view. Accordingly, the challenge in this appeal is in relation to the finding of guilt for offences under section 304 (1) and 498a of Indian Penal Code

(3.) Counsel for the appellant made fervent effort to persuade this court that finding reached by the trial Court either in relation to the offence under section 304 (1) or for that matter offence under section 498a of Indian Penal Code cannot be sustained. According to him, finding reached is not consistent with the prosecution evidence, as has come on record. I shall straightway deal with this grievance of the appellant. I have gone through the evidence of the concerned witnesses and on careful analysis of the same I see no reason to take a different view than the one taken by the trial Court. In my opinion, the analysis done by the trial Court of the prosecution evidence and conclusion reached on that basis is a possible view. As it is a possible view, it is not open for this Court to overturn the same merely because on reappreciating the same evidence this court may take a different view. This legal position is well-established by catena of decisions. " To elaborate this aspect, I may note that the trial Court has accepted the evidence of p. W. 2 who was the father of deceased Kalpana, P. W. 6 who was the brother of deceased Kalpana, P. W. 4-maternal uncle of deceased Kalpana, as trustworthy to establish the guilt of the appellant-being responsible to cause death of Kalpana, as also regarding demand made by the appellant and inflicting cruelty on deceased Kalpana on account of the; fact that his demand was not fulfilled by kalpana by getting further sum of Rs. 40,000/- from her father. The evidence of these witnesses is consistent in this regard. No attempt has been made during the cross-examination to demolish the truthfulness of the version given by the concerned prosecution witnesses, except mere suggestion given that the evidence given by them was false. There is evidence of child witness (P. W. 3) examined by the prosecution, which supports the theory put forth by the prosecution that the appellant was responsible to cause death of deceased Kalpana-by establishing the circumstance that he was last seen together and was the only other person available in the house besides their child (P. W. 3). The prosecution has also established the nature and cause of injury by producing medical certificate (Exh. 20) and post-mortem report (Exh. 35) and examining Dr. Sonar (P. W. I). The trial Court has considered each of these evidence in detail and accepted the prosecution case. It is relevant to note that the prosecution evidence suggests that attempt on the life of Kalpana was made second time by the accused. On the earlier occasion he had drowsed Kalpana with Kerosene and threatened to kill her. Suffice it to observe that the opinion recorded by the trial Court is a possible view having regard to the material an record.