Bombay High Court
Madhav Tukaram Kadam And Anr vs The State Of Mah on 8 December, 2009
Bench: P.V. Hardas
1 Cri. Appeal no.13.2008
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 13 OF 2008
1] Madhav S/o Tukaram Kadam,
Age : 25 years, Occu.: Driver,
R/o Shivni, Tq. Hadgaon,
District Nanded
2] Jijabai w/o Tukaram Kadam,
Age 67 years, Occu.: Household,
R/o as above ... Appellants
V E R S U S
1] The State of Maharashtra
Through Police Station Tamsa,
Tq. Hadgaon, District Nanded
(Copy to be served on Public
Prosecutor, High Court of
Bombay Bench at Aurangabad) ... Respondent
...
Shri S.S. Thombre, Advocate for appellants.
Shri V.D. Godbharle, A.P.P. for respondent-State.
...
CORAM : P.V.HARDAS AND
A.V.NIRGUDE, JJ.
DATED : 8TH DECEMBER, 2009
JUDGMENT (PER : P.V. HARDAS, J.)
1] The appellants who stand convicted for
offences punishable under section 498-A and 302 of
the Indian Penal Code r/w. section 34 of the
2 Cri. Appeal no.13.2008
Indian Penal Code and sentenced to R.I. for three
years and to pay fine of Rs.500/- in default of
payment of fine to undergo S.I. for one month and
imprisonment for life and to pay fine of Rs.1000/-
in default of which to undergo S.I. for two
months, respectively, by the Additional Sessions
Judge, Nanded by judgment dated 31.12.2007 in
Sessions case no. 168 of 2005, by this Appeal
question the correctness of their conviction and
sentence.
2] Such of the facts as are necessary for
the decision of this Appeal may briefly be stated
thus:-
. P.W. 8 A.P.I. Khodve was attached to the
Police Station, Tamsa. He had received
information from one Rohidas Narale that his niece
Varsha had been admitted in the hospital as froth
was oozing from her mouth and after admission
Varsha had died. Accordingly, A.D. no. 14 of 2005
came to be registered at the Police Station and
enquiry of the said A.D. was entrusted to P.W.8
A.P.I. Khodve. In the A.D. report at exhibit 34,
Rohidas Narale had stated that on 14.9.2005 dead
3 Cri. Appeal no.13.2008
body of his niece Varsha had been brought to his
house and when he had enquired from the accused,
the accused had informed him that since froth was
oozing from the mouth of Varsha she was admitted
in the hospital at Hadgaon. On way to the
hospital Varsha had expired. Pursuant to the
enquiry in respect of the accidental death of
Varsha, P.W.8 A.P.I. Khodve went to village Digras
on 15.9.2005 and drew the inquest panchanama of
dead body of Varsha. Dead body of deceased Varsha
was referred for post mortem examination.
Thereafter, scene of offence panchanama at exhibit
28 came to be drawn in the presence of P.W.6
Baburao. On 15.9.2005, P.W.1 Shobhabai had lodged
her report at exhibit 13 on the basis of which an
offence came to be registered against the accused.
P.W.8 A.P.I. Khodve took over the investigation of
the said crime. The accused came to be arrested
on the same day i.e. on 15.9.2005 at about 9:45
pm. On the next day statements of witnesses came
to be recorded. During custodial interrogation
accused no.1 Madhav expressed his willingness on
19.9.2005 to point out the bottle of poison which
had been hidden in a heap of waste material.
4 Cri. Appeal no.13.2008
Accordingly, memorandum of accused no.1 came to be
drawn at exhibit 26 in the presence of P.W.5
Ananta. Accused no.1 then produced the bottle of
poison which came to be seized at seizure memo at
exhibit 26-A. The seized articles and viscera
were referred to the Chemical Analyser, Aurangabad
through Police Constable Govind. The report of
the Chemical Analyser, is at exhibit 35. Further
to the completion of investigation a charge-sheet
against the accused came to be filed.
3] On committal of case to the Court of
Sessions, trial Court vide exhibit 8 framed a
charge against the appellants for offence
punishable under section 498-A r/w. 34 and 302
r/w. 34 of the Indian Penal Code. The accused
denied their guilt and prosecution in support of
it's case examined 8 witnesses. The entire case
of the prosecution rests on the testimony of P.W.1
Shobhabai mother of deceased P.W.2 Murhari father
of the deceased and P.W.3 Uttam-uncle. The
prosecution also placed reliance on the seizure of
the bottle of poison at the instance of the
accused. The trial Court accepted the evidence of
5 Cri. Appeal no.13.2008
the prosecution and convicted and sentenced the
accused as afore-stated.
4] In order to deal with the submissions
advanced before us by Shri S.S. Thombre learned
counsel for the appellants and learned A.P.P. for
the State, it would be useful to refer to the
facts of the prosecution witnesses. P.W.1
Shobhabai mother of Varsha states that Varsha was
married to the appellant no.1 about 3-1/2 months
prior to the incident. After marriage Varsha had
come to her house on the Panchami festival and at
that time Varsha had informed her that accused
were demanding Rs.2000/- for repairing auto-
rickshaw. Varsha had also informed her that her
mother-in-law and her brother-in-law were
insulting her by saying that her maternal family
was not enjoying good reputation and because of
marriage of Varsha the other people from the
community were not mixing with the accused.
Varsha further informed P.W.1 that the accused
were ill treating her saying that she could not
cook properly. An omnibus statement is alleged to
have been made by Varsha that the accused were
6 Cri. Appeal no.13.2008
beating and insulting her. P.W.1 Shobhabai
further states that after about 8-10 days the
accused no.1 had come to her house and requested
that arrangement for money be made. P.W.1
informed accused no.1 that she could not make any
arrangement. After 15 days Varsha called P.W.1 on
telephone and accordingly P.W.1 Shobhabai, her
mother Janabai and one Uttam went to village
Shivni i.e. to the house of Varsha. On seeing
them accused no.2 Jijabai left the house. P.W.1
Shobhabai was frightened and on enquiry with
Varsha, Varsha informed her that the accused had
administered some poison to her through the food
and Varsha complained of chest pain. Accordingly,
Varsha was taken to the hospital at Hadgaon where
Doctor declared her as dead. Shobhabai states
that on the next day dead body of Varsha was
referred for post mortem examination and funeral
was performed at village Digras. After funeral
she lodged her complaint at Police Station, Tamsa.
In cross-examination, she has admitted that the
accused were related to her prior to the marriage
of Varsha. She has admitted that accused no.1
Madhav had come to the hospital at Hadgaon. She
7 Cri. Appeal no.13.2008
has stated that on the next day morning at about
8:00 a.m. dead body of Varsha was taken to Tamsa.
She states that she had gone to Tamsa for lodging
her complaint after the funeral. She has admitted
that the funeral was performed at about 5:00 p.m.
- 5:30 p.m. She has admitted that the accused
no.1 owns an auto-rickshaw and Varsha was brought
to her house in the same auto-rickshaw.
5]
Prosecution has examined Murhari father
of deceased Varsha. He states that Varsha, after
her marriage, had come for the Nagpanchami
festival and had informed him that her mother-in-
law was stating that persons from her community
were not maintaining good relations as the
maternal family of Varsha did not enjoy good
reputation. Varsha had also stated that her
mother in law had stated that Varsha could not
cook well. Varsha also stated that she was ill-
treated for demand of Rs.2000/- for repairing of
auto-rickshaw. He states that Varsha had also
told him that she was assaulted and given
insulting treatment by the accused. P.W.2 Murhari
states that on 30.8.2005 accused no.1 had demanded
8 Cri. Appeal no.13.2008
Rs.2000/- from him and Murhari had told him that
he would arrange for the money. He further states
that on 13.9.2005 Varsha had told him on telephone
that she was being assaulted and ill-treated. He
states that on the next day he was informed that
Varsha was serious and had accordingly gone to a
private hospital at Hadgaon where he was informed
that Varsha was dead. He has stated that both the
appellants were sitting besides the dead body and
his wife Shobhabai and his mother-in-law Janabai
were already present there. He states that the
dead body of Varsha was taken to his house by the
accused no.1 and his brothers. He states that his
wife had informed him that Varsha had stated to
her that the accused had administered poison to
her and therefore, she was taken in a bullock cart
upto Walki and from there in an auto-rickshaw to
Hadgaon. He states that he accompanied his wife
to the Police Station for lodging report after the
funeral was performed. In the cross-examination,
he has denied to have stated at portion marked "A"
in his previous statement that his wife had
informed him that accused no.2 Jijabai had gone to
Ashti in the morning of the day of incident. He
9 Cri. Appeal no.13.2008
has denied to have stated that at portion marked
"B" in his statement that his wife told him that
Varsha was alone in the house when she had reached
Shivni at 2:00 pm. He has admitted that Rohidas
is brother of his wife Shobhabai and Rohidas had
informed about the incident to the Police on the
evening of 14.9.2005. He has also admitted that
dead body of Varsha was taken to Digras by accused
in his auto-rickshaw. He has admitted to have met
accused no.1 in the hospital at Hadgaon. He has
admitted that accused no.2 Jijabai was present at
his house during the night.
6] Prosecution has examined P.W.3 Uttam who
is brother of P.W.2 Murhari and therefore uncle of
deceased Varsha. He states that on the occasion
of Panchami festival Varsha had come to Digras and
had informed him that her husband and mother-in-
law were ill treating her and were alleging that
on account of marriage with Varsha the relations
with the members from their community were
strained. Varsha also told him that her in-laws
were alleging that the maternal family of Varsha
was not good and that Varsha could not cook
10 Cri. Appeal no.13.2008
properly. Varsha also informed him that accused
were demanding Rs.2000/- for repairing of auto-
rickshaw and that the accused were beating her on
account of money. He states that he had
accompanied P.W.1 Shobhabai to the house of
accused where Varsha had informed him that the
accused had administered poison to her in food.
He states that Varsha was taken to the hospital at
Hadgaon where she was declared dead. In cross-
examination he has admitted that accused no.2
Jijabai was present when he had gone to the house
of Varsha. He has also admitted that dead body of
deceased Varsha was brought to Digras in the auto-
rickshaw of accused Madhav. He has admitted that
dead body of Varsha was at the house of P.W.1
Shobhabai for the entire night. He has admitted
that the accused were present for the funeral and
accused no.2 was present in the house during the
night.
7] Perusal of the aforesaid evidence would
clearly indicate that the accused had demanded
Rs.2000/- for repairing auto-rickshaw. The other
allegations against the accused certainly do not
11 Cri. Appeal no.13.2008
fall within the definition of cruelty under
section 498-A of the Indian Penal Code. There is
no convincing evidence that deceased Varsha was
ill treated in respect of the demand for Rs.2000/-
for repairing of the auto-rickshaw. Varsha was
humiliated on account of the fact that she could
not cook properly and that her family did not
enjoy good reputation. There is vague reference
to the fact that Varsha had informed her relatives
that she was assaulted. Apart from such vague and
omnibus allegations, no other particulars are
disclosed in the evidence of these witnesses. The
evidence tendered by the prosecution, according to
us, is wholly insufficient for arriving at a
conclusion that Varsha was ill-treated and the
ill-treatment would amount to an offence within
the meaning of section 498-A of the Indian Penal
Code.
8] The evidence relating to death of Varsha
and the administration of poison is based upon the
oral dying declaration of deceased Varsha that the
accused had administered poison to her. The
poison which was detected in the viscera was
12 Cri. Appeal no.13.2008
imidachloprid which is an insecticide. The
aforesaid insecticide has an obnoxious and
repulsive smell and it is difficult to imagine
that Varsha would consume food which was mixed
with this poisonous substance. In any event the
prosecution has utterly failed to prove any motive
for the accused to commit murder of deceased
Varsha. The marriage was barely 3-1/2 months old
and there were no expectations which remained to
be fulfilled by the parents of Varsha. The
prosecution does not allege that the relations
between Varsha and her husband were strained on
any count. In such circumstances, it is difficult
to believe that the appellants would administer
poison to Varsha.
9] Prosecution has examined P.W.5 Ananta a
panch witness in whose presence the accused had
discovered a bottle of poison which was hidden
under the heap of waste material. He is related
both to P.W.1 Shobhabai as well as the accused.
He has admitted that accused no.1 Madhav is an
agriculturist. Assuming therefore that the
accused had produced the bottle of poison which as
13 Cri. Appeal no.13.2008
per the report of the Chemical Analyser at exhibit
35 was imidachloprid and that accused was in
possession of the poison but that would not prove
or advance the prosecution case that the accused
had administered poison. Mere availability of
poison in the house would not lead to an inference
that the accused had administered the poison. We
do not find the alleged dying declaration of
deceased Varsha to be reliable. Firstly no
report came to be lodged immediately when the
disclosure was made by Varsha. The report could
have been lodged after Varsha had died in the
evening. P.W.1 waited till the funeral was
performed for lodging the report. If at that
point of time, the parents of Varsha were aware
that it was the accused who had administered the
poison, we find it un-believable that they would
permit the accused to participate in the funeral
rites. The delay in lodging the F.I.R. has gone
un-explained. In fact a report ought to have been
lodged at the nearest Police Station immediately
when Varsha disclosed that the accused had
administered poison to her. As we have pointed
out above, no motive exists for the accused to
14 Cri. Appeal no.13.2008
have administered the poison and mere availability
of poison in the house of the accused who is an
agriculturist would not lead to an inference that
it was the accused who had administered the
poison.
10] Thus considering the entire prosecution
evidence, according to us, the prosecution has
utterly failed to prove that poison had been
administered to Varsha by the accused. In fact
since the accused had humiliated Varsha by stating
that Varsha could not cook properly and that the
family of her parents was not of good reputation,
possibility of Varsha committing suicide by
consumption of the poison can-not be ruled out.
The poison which is alleged to have been
administered to Varsha was an insecticide and by
the very repulsive odour the said insecticide
can-not be consumed accidentally. Varsha would
have noticed the obnoxious or the repulsive odour
if it was mixed in food and given to her.
Therefore, according to us, the possibility that
Varsha committed suicide can-not be ruled out. In
the face of evidence, therefore, according to us
15 Cri. Appeal no.13.2008
the appellants are entitled to be given the
benefit of doubt.
11] Accordingly this Criminal Appeal is
allowed. Conviction and sentence of the
appellants for offence punishable under section
498-A read with 34 of the Indian Penal Code and
section 302 read with 34 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 appellant no.1
Madhav S/o Tukaram Kadam is in jail he be released
forthwith, if not wanted in any other case. Bail
bond of appellant no.2 Jijabai w/o Tukaram Kadam
stands cancelled. Fine, if paid by the appellants
be refunded to them.
Sd/- Sd/-
(A.V.NIRGUDE, J.) (P.V.HARDAS, J.)
arp
