Narayan Vithoba Dhagare And Ors vs State Of Mah
2009 Latest Caselaw 37 Bom

                                       1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD




                                                                      
                  CRIMINAL APPEAL NO. 74 OF 2008




                                              
     1.    Narayan Vithoba Dhagare,
           Age 50 years, Occu.Labour,




                                             
     2.    Sakharbai w/o Narayan Dhagare,
           Age 40 years, Occu.Household

     3.    Ramesh @ Bandu s/o Narayan Dhagare,
           Age 21 years, Occu.Labour




                                  
           All R/o Muluk, Taluka and
                     
           District Beed                               .. APPELLANTS


                 VERSUS
                    
     -     State of Maharashtra                        .. RESPONDENT

Shri Joydeep Chatterji, Advocate for appellant No.1

Smt.S.S.Jadhav, Advocate for appellant Nos.2 and 3 Shri S.V.Kurundkar, Addl.Public Prosecutor for respondent-State

CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ

DATE : 8th December 2009

ORAL JUDGMENT (PER P.V.HARDAS, J.)

1. The appellants who stand convicted for offences

punishable under Section 302, 304-B, 498-A, 201 read with 34 of

the Indian Penal Code and under Section 4 of the Dowry

Prohibition Act and accused No.2 stands additionally convicted for

offence punishable under Section 323 of the Indian Penal Code

and sentenced to imprisonment for life and to pay fine of Rs.

5,000/- each in default of payment of fine to undergo further

simple imprisonment for three months and rigorous imprisonment

for three years and fine of Rs.3,000/- each with a default

condition of undergoing further rigorous imprisonment for three

months in the event of non-payment of fine, rigorous

imprisonment for six months and to pay fine of Rs.1,000/- with a

default stipulation of undergoing further simple imprisonment for

one month and rigorous imprisonment for seven years with fine of

Rs.2,000/- each with a default condition of undergoing further

simple imprisonment for six months in the event of non-payment

of fine and rigorous imprisonment for one year and to pay fine of

Rs.1,000/- each with a default condition of undergoing further

simple imprisonment for one month in the event of non-payment

of fine, with a direction that the substantive sentences against

the respective accused shall run concurrently, by the Additional

Sessions Judge-II, Beed, by judgment dated 20.2.2008, in

Sessions Case No.17/2007, by this appeal question the

correctness of their conviction and sentence.

2. Such of the facts as are necessary for the decision of

the appeal may briefly be stated thus.

P.W.6, A.S.I. Bhosale who was working in the Neknoor

Police Station recorded the complaint of P.W.5 Jijabai at Exh.23 on

20.12.2005. On the basis of the said complaint, P.W.6 A.S.I.

Bhosale registered an offence under Section 302, 201, 323, 498-A

read with 34 of the Indian Penal Code and under Section 3 and 4

of the Dowry Prohibition Act, vide Crime No.156/2005. The

investigation of the said crime was handed over to P.W.8 A.P.I.

Bhume. The post mortem on the dead body of deceased Ashwini

was performed by P.W.1 Dr.Shahane who noticed an incise wound

over left side of neck 3" x 1/2". He also noticed that the dead

body was damaged by aquatic animals. He, therefore, opined

that cause of death did not appear due to drowning. He

accordingly issued the provisional cause of death certificate at

Exh.16. The post mortem report is at Exh.15. The accused came

to be arrested and the seized property in the said crime was

referred to the Chemical Analyzer through P.W.7 Police Constable

Sudesh along with the requisition at Exh.39. Further to the

completion of investigation a charge-sheet against the accused

came to be filed.

3. On committal of the case to Court of Sessions, trial

Court vide Exh.7 framed a charge against the accused. The

appellants denied their guilt and claimed to be tried. Prosecution

in support of its case examined eight witnesses. The trial Court

accepted the evidence of the prosecution witnesses and

convicted and sentenced the accused as aforestated.

4. P.W.2 Gorakh, a witness to the scene of the offence

panchnama has admitted that the Well in which the dead body of

deceased Ashwini was found floating is not a constructed Well. He

has admitted that he did not notice as to whether steps had been

created for entering inside the Well. He has also acknowledged

that one orange coloured cap, used in Winter, was found at a

distance of 5 feet from the Well. We may at this juncture briefly

make a reference to the evidence of P.W.4 Henumant, uncle of

deceased Ashwini who admits that the Well was not constructed

above the water level. The scene of the offence panchnama is at

Exh.18.

5. P.W.5 Jijabai, mother of deceased Ashwini and the

first informant states that deceased Ashwini was married to

accused Ramesh on 18.11.2005. She states that during marriage

it was decided that dowry of Rs.30,000/- would be paid to

accused Ramesh and from the said amount, an amount of Rs.

20,000/- had been paid to Ramesh and balance of Rs.10,000/-

remained to be paid. After marriage, Ashwini went to reside with

her husband and returned to her maternal home after four days

of her marriage and resided there for a day. After about 8 to 10

days she returned back to her parents' house and informed P.W.5

Jijabai that she was sent to bring Rs.10,000/-. P.W.5 Jijabai

noticed that Ashwini was weeping at that time. She informed

Jijabai that she was assaulted by her husband and his parents.

Jijabai accordingly advised her that at present she was not having

the money and the amount would be paid subsequently. She

then states that mother-in-law of Ashwini came to her house at

about 2.00 p.m. and she asked Ashwini as to why she had come

to her parents' house and what type of harassment was caused to

her. She accordingly gave Ashwini 2 to 4 slaps. The mother-in-

law of Ashwini informed Jijabai that she had come to fetch

Ashwini. Jijabai told her that Ashwini was not ready to go with her

mother-in-law but she sent her at about 5.00 p.m. On

16.12.2005, accused No.1 and accused No.3 had come to her

house along with one person and they had asked Jijabai if Ashwini

had come to her house. Jijabai answered in the negative. She

noticed that both of them appeared to be frightened and they

returned immediately. On that day Jijabai along with Rahibai

went to Muluk to the house of the accused. All the three

appellants were present in the house and the accused informed

her that Ashwini was missing. Accordingly, search was taken.

Accused had also searched for Ashwini and had also inspected

the Well of one Vishnu Kumbhar. Since whereabouts of Ashwini

were not traced, P.W.5 Jijabai returned home on the next day

morning. She states that on 20.12.2005 she had received a

message on phone and learnt that the dead body of Ashwini was

found in the Well of one Vishnu. She along with her relatives

reached to village Muluk at about 10.00 to 10.30 a.m. She

proceeded to the Well and noticed the dead body of Ashwini

flaoting on water. The dead body was removed from the Well by

the villagers. According to her the accused were not present and

were absconding. She noticed that the aquatic animals had

damaged the dead body. She states that thereafter she had

lodged her complaint at Exh.23. In cross-examination she has

admitted as true that when Ashwini had come on the second

occasion, Jijabai had told her that Ashwini should not complaint

about such trivial cause as she was a newly married girl. Jijabai

also informed her that such trivial matters were likely to crop up

in her married life and advised her to ignore such things. She has

admitted as true that when she had first gone to Muluk for

searching for Ashwini, the accused had also searched for Ashwini

but Ashwini was not found and later on in the same Well her dead

body was noticed. She states that she was at Muluk till the dead

body was brought to Muluk. She has admitted that after the

funeral she had gone to village Neknoor. Omission has been duly

proved that she had not stated that amount of Rs.30,000/- was

agreed to be given as dowry and Rs.20,000/- had been paid.

Omission has been duly proved that she had not stated that she

had agreed to pay the remaining amount. Omission has been duly

proved that she had not stated that when the dead body of

deceased Ashwini was removed from the Well, the accused were

not present and were absconding. Similarly, omission has been

proved that she had not stated in her report that Ashwini was not

prepared to go with her mother-in-law but Jijabai had sent her

with her mother-in-law. Similarly, she had not stated in her report

that the accused were noticed to be frightened when they had

come to her.

6. Prosecution has examined P.W.4 Hanumant, uncle of

deceased Ashwini. He states that Ashwini, after her marriage

used to come to her parents' house after interval of about 4

months. He states that on 16.12.2005 she had come to the

house of her parents and at that time he was standing outside the

house. Ashwini started weeping and told P.W.4 Hanumant that

she was subjected to cruelty and was beaten. She further stated

that she had not been provided food and also informed him that

her husband was demanding the remaining amount of dowry of

Rs.10,000/-. He states that Ashwini was advised by P.W.5 Jijabai,

her brother Navnath and by P.W.4 Hanumant to keep quiet. He

states that mother-in-law of Ashwini had come to her house and

had asked him whether Ashwini had come to his house. Mother-

in-law then went inside the house and slapped Ashwini. He states

that Ashwini started weeping and was sent with her mother-in-law

at about 5.00 p.m. He then states that after two days the

accused had come to his village and had asked him whether

Ashwini had come to his house. Mother of Ashwini had replied

that she had not come to her house. The accused informed

mother of Ashwini that since last two days Ashwini was missing.

He states that thereafter he had gone along with P.W.5 Jijabai to

village Muluk and had joined the search of the accused but could

not trace Ashwini. He states that he had received a phone

message that the dead body of Ashwini was found in the Well at

village Muluk and accordingly he had gone there. He states in

examination-in-chief that the Well had no parapet wall and the

electric motor was installed in the Well. In cross-examination he

has admitted that the Well was not constructed above the water

level. Omission has been duly proved that he had not stated in

his statement that when Ashwini had come to his house he was

standing outside and Ashwini had started weeping and had

informed him that the accused were not providing her food.

7. In face of the evidence of P.W.4 Hanumant and P.W.5

Jijabai, we are constrained to observe that the prosecution has

utterly failed to establish that the accused had subjected

deceased Ashwini to such harassment or cruelty as would have

driven Ashwini to commit suicide. P.W.4 Hanumant speaks about

an incident on 16th while P.W.5 Jijabai speaks about the incident

prior to 16th. In fact, P.W.5 Jijabai states that on 16th, the accused

had come and had informed her that Ashwini was missing.

Moreover, omission has been duly proved that Jijabai had not

stated that an amount of Rs.30,000/- was decided to be paid to

the accused as dowry and Rs.20,000/- had been paid to the

accused. If that be the case, the entire edifice of the prosecution

that the accused were harassing deceased Ashwini on account of

non-payment of the remaining dowry amount falls to the ground.

Thus, there is absolutely no reliable evidence in respect of the

demand for dowry and harassment of Ashwini on account of its

non-payment. There is no consistency in the evidence of P.W.4

Hanumant and P.W.5 Jijabai in respect of the mother-in-law

slapping Ashwini. In the light of such discrepant evidence,

therefore, according to us no reliance whatsoever can be placed

on the testimony of these two witnesses.

8. The next question arises is whether the accused had

committed murder of deceased Ashwini by inflicting an incise

wound on her neck. Evidence of P.W.1 Dr.Shahane is material on

this point. Dr.Shahane refers to finding an incise wound on the

left side of the neck 3" x 1/2". According to him cause of death is

due to cardio-respiratory arrest due to Hypovolumic shock

secondary to injury over neck. He has further opined that victim

could have died 72 hours before the dead body was examined by

him. In cross-examination he has admitted as correct that

because of decomposition, the wound became invisible and

because of that it becomes difficult to opine as whether the injury

was an abrasion, contused laceration or incise wound. He has

further admitted that if a person falls in the Well and before his

body comes into contact with water he may die and in that case

water may not enter his body. He has further admitted that in

the event the water which is entered the body in a state of

decomposition the water may not be present in the body. He has

further agreed that if the body is taken out of water after a lapse

of time there may not be symptoms of death due to drowning.

He then opines, " Therefore, remote possibility of death due to

drowning can not be ruled out." He further admits, " I used the

word death does not appear due to drowning because I was not

confirm about the cause. Cardiac respiratory arrest may appear

to a person because of fall, getting water in body through the

mouth and nostrils or stoppage of heart." He further agrees, " I

agree that if a person while falling in the Well for his neck came in

touch with sharp rock, such injury may cause. I do agree that

because the body was decomposed and maggots eat some parts

of body it was not in my competence to give opinion about the

cause of death" (Emphasis supplied).

Thus, perusal of the evidence of P.W.1 Dr.Shahane

clearly indicates that he could not positively state as to the cause

of death i.e. deceased Ashwini died as a result of the injury to the

neck or whether she died as a result of drowning. P.W.1

Dr.Shahane in no uncertain terms states that death by drowning

could not be ruled out. In such circumstances, therefore,

according to us the possibility that deceased Ashwini may have

committed suicide or may have accidentally fallen in the Well as

the Well has no parapet, cannot be ruled out. In such situation,

therefore, according to us the accused are entitled to be given

the benefit of doubt. In the earlier part of the judgment we have

held that there is no evidence in respect of harassment or cruelty

to Ashwini on account of failure to pay the agreed amount of

dowry and, therefore, according to us the prosecution has failed

to prove the circumstance of motive for the accused to have

committed the crime. There is absolutely no evidence worth the

name to arrive at a conclusion that it was the appellants and the

appellants alone who had committed the crime of deceased

Ashwini. In such situation, therefore, the conviction of the

appellants is wholly unsustainable and the appeal deserves to be

allowed.

9. Accordingly, this Criminal Appeal is allowed and

conviction of the appellants for offence punishable under Section

302 read with 34 of the Indian Penal Code, 304-B read with 34 of

the Indian Penal Code and 498-A read with 34 of the Indian Penal

Code, 201 read with 34 of the Indian Penal Code, Section 4 of the

Dowry Prohibition Act and conviction of accused No.2 Sakharbai

w/o Narayan Dhagare for offence punishable under Section 323 of

the Indian Penal Code is hereby quashed and set aside and the

appellants are acquitted of the offences with which they were

charged and convicted.

Since accused No.2 Sakharbai w/o Narayan Dhagare and

accused No.3 Ramesh @ Bandu s/o Narayan Dhagare are said to

be in jail, they be released forthwith, if not wanted in any other

case. Accused No.1 Narayan Vithoba Dhagare is said to be on

bail and his bail bonds stand cancelled. Fine, if paid by the

appellants be refunded to them.

          ( A.V. NIRGUDE )                    ( P.V. HARDAS )





                JUDGE                              JUDGE




     (vvr/criapeal74.08)