Vitthalrao vs The State Of Maharashtra At The
2012 Latest Caselaw 161 Bom

                                     1

          IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                    
                     BENCH AT AURANGABAD




                                           
                     CRIMINAL APPEAL NO.6/2005
                                ---

     1.   Vitthalrao s/o Dattarao Kale,
          age 25 yrs, occ. Agriculture,




                                          
          r/o Maradga, Tq. Hadgaon,
          Dist. Nanded.

     2.   Sow. Kaushalyabai w/o Dattarao Kale,




                                  
          age 45 yrs, Occ. Household and Agri.
          R/o Maradga, Tq. Hadgaon,
                  
          Dist. Nanded.                        Appellants
                                    [orig. accused nos. 1 and 3]
                 
          VERSUS

          The State of Maharashtra at the
          instance of Uttamrao Gyanba Shinde,
          age 45 yrs, Occ. Agri,
      


          R/o Newari, Tq. Hadgaon,
          Dist Nanded.                        Respondent.
   



                                           [orig.complainant]

     ================================
     Mr. S. S. Choudhary, advocate for appellants.





     Mr. B.J. Sonwane APP for respondent/state.
     ================================
                             ...
                             CORAM : SHRIHARI P. DAVARE, J.

                             DATE      : 10.10.2012





                             ...

     JUDGMENT :-

1. Heard learned respective counsel for the parties.

2. Challenge in this appeal is to the conviction and

sentence imposed upon the appellant nos. 1 and 2 (original

accused nos. 1 and 3) (hereinafter referred to as per their original

status i.e. accused) by way of judgment and order dated

14.12.2004, rendered by learned 3rd Adhoc Additional Sessions

Judge, Nanded in S.C.No.86/2004, thereby convicting the

accused no.1 Vitthal Dattarao Kale for the offence p/u/s 498-A of

Indian Penal Code and sentenced him to suffer R.I. for six months

and to pay fine of Rs.500/-, in default to suffer R.I. for one month

and also convicting accused No.3 Kausalya Kale for the offence

p/u/s 498-A of Indian Penal Code and sentenced her to undergo

S.I. for ten days and to pay fine of Rs.500/-, in default to suffer S.I.

for ten days. In fact the accused nos. 1 and 3 faced trial in the

said sessions case alongwith co-accused i.e. accused no.2 for the

charges under section 498-A, 304-B r/w 34 of Indian Penal Code,

but the accused no.2 namely Dattarao Kale was acquitted of all

the charges and also accused nos. 1 and 3 were also acquitted for

the offence p/u/s 304-B r/w section 34 of Indian Penal Code

except conviction and sentence under section 498-A of Indian

Penal Code, as aforesaid.

3. Brief facts which can be summarized as under :-

Victim namely Vaishali married with the accused no.1

namely Vitthalrao in the year 2002 and after marriage she started

residing with the accused persons at her matrimonial home. The

accused no.2 Dattarao is her father in law, whereas accused no.3

Kausalya is her mother in law. It is alleged that the victim Vaishali

was subjected to cruelty by the accused persons on account of

non fulfillment of unlawful demand of Rs.50,000/- made by them to

her to be brought by her from her parental house for cleaning the

well in land and i.e. taking out mud out of well, which resulted into

committal of suicide by her by jumping into well on 12.08.2003. It

is also alleged that she was removed from the well, but she had

died and said incident was informed to Vaishali's parents and they

came to village Maradga. In the meantime, matter was reported

by Police Patil to police station Hadgaon. PW 8 PSI Dilip Jadhav

was working in the Police Station, Hadgaon and accidental death

was registered on 13.8.2003 at police station, Hadgaon on the

report lodged by Police Patil of village Maradga to police out post

Niwgha. Accordingly, PW 8 PSI Jadhav visited the spot and

conducted inquest panchnama of the dead body of the victim

Vaishali on 13.8.2003 at about 07.30 to 07.45 am (Exh.30).

Thereafter, said dead body was sent to Rural Hospital, Hadgaon

for post mortem purpose. Accordingly, PW 11 Dr. Haribhau

Gadekar conducted postmortem on the said dead body on

13.8.2003 between 12.00 to 01.00 p.m and said postmortem

notes are produced at Exh.29. PW 8 PSI Jadhav also conducted

the spot panchanama at the place of incident which is produced at

Exh.28. The report of Police Patil is also produced at Exh.32. PW

8 PSI Jadhav recorded statements of the witnesses and

neighborers on 13.8.2003 and 14.08.2003. DYSP Bhokar also

visited the scene of offence and supervised the investigation,

however, since no offence was disclosed, PW 8 PSI Jadhav

closed the inquiry by submitting the report to Taluka Inspector,

Hadgaon and said report is marked at Exh.33.

4. It is further alleged that, Vaishali's brother and father

tried to lodge the complaint with the police, but no cognizance was

taken hence, they lodged the complaint with Superintendent of

Police and Tahsildar, Hadgaon and, matter was referred to Police

Station, Hadgaon, however, since there was no progress in the

matter, father of Vaishali Uttamrao lodged the complaint with

Judicial Magistrate First Class, Hadgaon. Accordingly, learned

Judicial Magistrate F.C. Hadgaon took cognizance of said offence

and directed to issue process. Accordingly, after completion of

inquiry under section 202 of Code of Criminal Procedure, he

committed case under section 209 of Cr.P.C. to the Court of

Sessions, since the offences alleged against the accused were

exclusively triable by the Court of Sessions.

5. Accordingly, learned 3rd Adhoc Additional Sessions

Judge, Nanded framed charge against accused persons on

9.8.2004 for the offence p/u/s 498-A r/w 34 of Indian Penal Code

and also under section 306 r/w 34 of Indian Penal Code (Exh.7).

Moreover, the said charge was modified on 5.11.2004 and charge

under section 304-B r/w 34 of Indian Penal Code was also framed

against accused persons by the learned trial court. However,

accused pleaded not guilty to the said charges and claimed to be

tried. To substantiate the charges levelled against accused,

prosecution has examined 11 witnesses as mentioned below :-

1. PW 1 Uttamrao s/o Gyanbarao Shinde - father of victim

and complainant.

2. PW 2 Rohidas s/o Shivram Shinde uncle of victim.

3. PW 3 Kondiba Hanmant Puri friend of PW 1 Uttam.

4. PW 4 Pandit s/o Uttamrao Shinde brother of victim.

5. PW 5 Ushabai w/o Uttamrao Shinde mother of victim.

6. PW 6 Ramchandra s/o Gyanoba Shinde panch to inquest

panchnama -Turned hostile.

7.

PW 7 Dhulaji s/o Tukaram Nirmal panch to the spot panchnama.

8. PW 8 Dilip Prabhakarrao Jadhav Police Officer, who carried part of the investigation.

9. PW 9 Tukaram Kisanrao Kadam maternal uncle of victim.

10. PW 10 Ganpat Vikram Kadam grand father of victim.

11. PW 11 Dr. Haribhau Ganpatrao Gadekar, Medical Officer, who conducted postmortem report on the dead body of victim.

6. The defence of the accused was of total denial and,

they also denied about any ill treatment meted out by them to the

victim. They tried to explain the death of victim stating that on the

day of incident, Vaishali had been to field with her mother in law

i.e. accused no.3 for agricultural work and, while they were

working, Vaishali went to well for fetching water to drink it, but

while she was fetching water by rope, she fell in side the well.

Nearby people immediately rushed and took out her of the well

and, tried to save her life but, she could not be saved. According

to them, death of Vaishali is not suicidal but, it is accidental death.

They also asserted that there was no ill treatment to Vaishali at the

hands of the accused and, therefore, they contended that they

have not committed any offence and accordingly they claimed to

be innocent. However, they neither examined themselves on oath

nor examined any witness in support of them. After considering

the oral and documentary evidence on record, learned trial court

acquitted all the accused for the offence p/u/s 304-B r/w 34 of

Indian Penal Code and also acquitted the accused no.2 from both

the offences i.e. 498-A and section 304-B of Indian Penal Code,

whereas convicted the accused nos. 1 and 3 for the offence

punishable u/s 498-A of Indian Penal Code, as aforesaid. Being

aggrieved and dis-satisfied by the said conviction and sentence,

accused nos. 1 and 3 have preferred the present appeal assailing

the said conviction and sentence by impugned judgment and

order dated 14.12.2004 and, prayed for quashment thereof and

also urged for their consequent acquittal.

7. The learned counsel for the appellants/accused

canvassed that all the witnesses examined by the prosecution

except panchas, police officer and doctor are closely related with

the complainant PW 1 Uttam Shinde and accordingly, they are

interested witnesses whose testimonies are required to be

scrutinized closely. In the said context, it is further submitted by

learned counsel for the appellant that prosecution has not

examined any independent witness to substantiate the charges

levelled against the accused. Moreover, he asserted that even

Sahebrao Kale who allegedly informed the complainant about the

death of victim also has not been examined by the prosecution

although, he is a material witness. Moreover, even the

Investigating Officer who carried out further investigation and filed

charge sheet also has not been examined by the prosecution.

Moreover, panch witness to the inquest panchnama i.e. PW 6

Ramchandra Shinde turned hostile and did not support the case of

the prosecution. As regards testimony of PW 11 Dr. Haribhau

Gadekar who performed the postmortem on the dead body is

concerned, it is submitted that he has stated in his deposition that

death of victim may be accidental and he has not categorically

stated that death of victim is homicidal. It is further submitted that

said aspect has been strengthened by the spot panchnama and

the photographs which disclose that height of the wall is one and

half feet and one rope along with a pot was found floating on the

water of the well. As regards the alleged harassment/ill treatment

at the hands of the accused to the victim is concerned, it is

submitted that no specific details of alleged ill treatment and/or

manner of ill treatment allegedly given by the accused to the

victim has been narrated by any of the witnesses. Accordingly, the

witnesses do not spell out what type of ill treatment was given by

the accused to the victim and testimonies of prosecution

witnesses in that respect are vague and ambiguous. It is further

submitted that there are discrepancies in the testimonies of

prosecution witnesses in respect of arrival of victim to the parental

house at different festivals and even in respect of other particulars,

which go to the root of the matter and hampers the case of the

prosecution.

8. Besides, according to learned counsel for the

applicants, the statements of the complainant Uttam Shinde, his

wife Ushabai Shinde and brother of victim namely Pandit Shinde

were recorded on 13.8.2003 i.e. on the very next date of the

occurrence of incident and PW 8 PSI Jadhav has admitted that

PW 1 Uttam i.e. father of victim stated before him that his

daughter had no trouble from anybody and she was carrying eight

months pregnancy, and the said statements which are at Exh.34,

exh.35 and exh. 36 bring out truth on record which clarifies the

position.

Accordingly, learned counsel for the appellants

submitted that the learned trial court has not assessed the

evidence in proper perspective and committed glaring mistake

while convicting the accused by impugned judgment and order

dated 14.12.2004 and, further submitted that said judgment is

perverse and therefore, urged that present appeal be allowed and

conviction and sentence imposed upon the accused nos. 1 and 3

be quashed and set aside and they be acquitted for the offences

with which they were charged. Even the contents of A.D.R dated

12.8.2003 Exh.4 clarifies that victim Vaishali fell in the well and

met with death due to drowning and said contents of very report

which was recorded at the first point of time clarifies that victim

met with accidental death.

9. Learned APP countered the said argument and

opposed present appeal vehemently and submitted that victim

Vaishali was subjected to cruelty and ill treatment by the accused

within four walls and therefore, independent witnesses could not

be there and, hence, prosecution has examined the relatives of

the victim before whom she had disclosed the ill treatment meted

out to her by the accused. Hence, testimonies of the said

witnesses are relevant. He further submitted that PW 11 Dr.

Gadekar have stated that death of victim may be accidental,

suicidal or even somebody pushes living person in a well. He also

stated that according to him, he cannot opine whether deceased

was pushed or slipped due to accident or committed suicide.

However, he gave cause of death of victim as 'asphyxia due to

drowning'. Hence, he submitted that there is no clear opinion of

Medical Officer about accidental death of victim. Moreover, as

regards the alleged discrepancies and deformities in the

testimonies of prosecution witnesses, he submitted that there are

some minor discrepancies in the testimonies of prosecution

witnesses, but same do not go to the root of the matter and, do

not hamper the case of the prosecution. It is further submitted

that the complainant and his son ran from pillor to post to lodge

the complaint, but the police personnel did not take cognizance

thereof and ultimately, the complainant was required to approach

the learned Judicial Magistrate First Class, Hadgaon who took the

cognizance and set the criminal law into motion and said aspect

also cannot be ignored. According to learned APP, the learned

trial court has scrutinized and analyzed the evidence in proper

perspective and, thereafter convicted and sentenced the accused

nos. 1 and 3 and there is no glaring mistake therein and therefore,

no interference therein is called for in the present appeal and

hence, urged that present appeal be dismissed. Learned APP

also submitted that the marriage of accused no.1 Vitthal and victim

Vaishali took place in the year 2002 and victim Vaishali committed

suicide on 12.8.2003 due to harassment and ill treatment meted

out to her within span of seven years from the marriage and

hence, presumption under section 113 (A) of Evidence Act

deserves to be invoked against the accused.

10. I have perused the impugned judgment and order

dated 14.12.2004 and also perused the oral, documentary and

medical evidence adduced/produced by the prosecution and

heard rival submissions advanced by the learned counsel for the

parties anxiously.

11. In order to advert to the rival submissions advanced

by learned counsel for the parties, it is necessary to deal with the

material evidence adduced/produced by the prosecution and in

the said context, at the outset, coming to the testimony of PW 1

Uttamrao Shinde i.e. father of the victim and complainant stated

that deceased Vaishali was his daughter. She married with

accused no.1 Vitthal in May, 2002. After marriage she went to her

matrimonial home. Initially she was treated well for about 2-3

months, but there after accused started abusing and assaulting

her on account of less payment of dowry. He stated that he had

paid Rs.60,000/- dowry and when his daughter visited his house

on first Akhadi, she disclosed that accused were asking her to

bring Rs.50,000/- from him for the purpose of cleaning the well i.e.

taking out mud from the well, however, he was unable to pay the

amount. Hence, he advised his daughter that as dowry of Rs.

60,000/- was given to her by selling bullocks and agricultural land,

he was unable to pay the said amount. He also stated that again

victim visited his house at the time of festival of Nagpachami and

at that time, she also complained that she was subjected to

trouble by her mother in law and she was starving her. Hence, his

brother PW 2 Rohidas went with her to her matrimonial home and

convinced about their condition to the accused. He further stated

that victim did not come for first Rakhi Pournima after marriage but

by second Rakhi Pournima she expired on 12.8.2003 i.e. on the

very day of Rakhi Pournima. He came to know about her death

from one Sahebrao Kale, who informed him that his daughter

committed suicide by throwing herself into the well. Hence, he

went to Maradga alongwith his wife, brother and other persons

and he and his brother Ramchandra went to police station Niwgha

i.e. out post and informed about death of his daughter. Thereafter,

police came to village Maradga on the next day morning at about

11.00 am and police took dead body to Hadgaon for postmortem.

Thereafter he went to Hadgaon police station, but police did not

take any cognizance. Hence, he went to Nanded alongwith his

brother and visited the S.P. Office and gave application Exh.19

but, no action was taken by the S.P. Office. Hence, he lodged the

complaint with Tahsildar, Hadgaon who referred the said matter to

police Station, Mantha, however, as there was no progress in the

matter, he filed complaint before learned Judicial Magistrate First

Class, Hadgaon through his advocate Exh.1. Accordingly, he

stated that delay was caused in filing the said complaint due to

aforesaid reasons.

12.

During cross examination, he stated that, victim was

carrying pregnancy of eight months at the time of occurrence of

the incident. He also admitted that accused no.1 used to take his

daughter for periodical checkup and she was carrying pregnancy

for first time. He also stated that he along with his wife had been

to matrimonial home of his daughter on the festival of Mahalaxmi

and, had made halt there during night and, accused offered

clothes and saree to them and PW 1 also offered clothes and

saree to accused reciprocally. He further stated that his brother's

son namely Sudarhsan's marriage took place in the next year of

marriage of her daughter, that time daughter of complainant and

accused were called with protocols and they visited the marriage

and during said marriage clothes and saree were offered by PW 1

to accused. He also stated that after three months of marriage

Vaishali told that dowry was paid less. However, he further stated

that as agreed in settlement everything was paid and, nothing was

remained with them. Hence, suggestion was given that his

daughter complained about less dowry paid to him, but same was

denied. It was also suggested that his daughter complained to

him about ill treatment, but same was denied by him. The defence

of the accused was put to him in the cross examination that his

daughter had been to well to fetch water on the day of incident,

but, he stated that he was not aware of the same, however, he

further stated that it may be that his daughter had gone to fetch

water on well, but further denied that while fetching water, his

daughter fell in the well. However, he admitted that Vaishali was

not knowing swimming. He denied that Vaishali died accidentally

due to drowning and stated that she has committed suicide. It

was further suggested to him that the complainant demanded the

expenses incurred by him for marriage of the daughter i.e. Rs.

50,000/- and accused failed to meet the demand and therefore,

false case was lodged by the complainant against accused

persons, but same was denied by him.

13. The substance of the testimony of PW 1 Uttam

Shinde is that whenever his daughter Vaishali used to visit his

house at the time of festivals, she disclosed that the accused

demanded Rs.50,000/- from her for cleaning the well, since less

dowry was paid during the marriage and due to non fulfillment of

the said amount, she was subjected to ill treatment by her mother

in law since she starved her. However, it is material to note that,

there are no allegations against husband of the victim i.e. accused

no.1 Vitthal in respect of any ill treatment/harassment. Moreover,

as regards the alleged harassment by accused no.3 Kaushalya,

mother in law, he only stated that she was not giving food to victim

and not beyond that. Moreover, it is bald statement made by PW

1 Uttamrao against accused no.3 which was allegedly disclosed

by victim to him which is not being supported by any other

oral/documentary evidence and, therefore, such bald statement

cannot be believed. Apart from that, even assuming for the sake

of assumption without admitting that victim was not given food,

apparently, mere said inaction would not attract ingredients of

section 498-A of Indian Penal Code. It is also evident from the

testimony of PW 1 that accused no.1 had taken due care of victim

during her first pregnancy and he used to take her for periodical

check up. It appears from the testimony of PW 1 that there were

cordial relations between the accused and complainant and

complainant and his wife used to visit the matrimonial home of his

daughter on the occasions of festival and, even used to stay there

as well as offerings of clothes and saris used to be made by them

each other reciprocally on the various occasions. Hence, there do

not appear to be any strained relations between the complainant

and accused persons on account of ill treatment and harassment

by the accused to victim.

14. In so far as the defence put up by the accused is

concerned, it was suggested to PW 1 that his daughter had been

to fetch water from the well and, while fetching water his daughter

fell in the well and met to death by drowning accidentally. It is

necessary to advert to the testimony of PW 7 Dhulaji Nirmal i.e.

panch witness to the spot panchanama who stated that in the field

of Dattarao Kale, there was a well having cement fencing or

border and the said wall was constructed in cement ring which

was having water, but there were no steps in the well but it was

having steal rod for climbing in the hook type and there was 15'

deep water from ground level. Panchas found the pot tied with

rope in the well and rope was on surface, of the water whereas

the pot was inside the water. Accordingly, panchas conducted

panchnama on the spot. It is produced at Exh.28. In cross

examination, he stated that well was about 50 to 60 feet deep and

water was clear. The water column in the well must be more than

1 and ½ feet. Moreover, they were not able to see the bottom of

the well. He also stated that cement ring was about 1 foot in

height above ground level. He also stated that his house was

near the house of the accused and matrimonial life of Vaishali and

Vitthal was going on well. Financial condition of accused was

good. The said spot panchnama is marked at Exh.28.

15. Thus, the testimony of PW 7 Dhulaji Nirmal spot

panch and contents of spot panchnama clarify that the well was

having cement fencing or ring and height thereof from ground

level was hardly about one foot to one and half foot and therefore,

there was every possibility of falling down the victim in the well

while fetching the water since the height of the said cement ring

was very short i.e. about one to one and half foot from ground

level. Moreover, it cannot be ignored that victim was pregnant for

about eight months and possibility of her falling in the well while

fetching water due to loss of balance also cannot be ruled out.

Moreover, it is apparent that said well was not having any steps

and there was deep water in the said well from ground level i.e.

above 15 feet. Pertinently, there was a pot tied with rope in the

well and rope was on the surface whereas the pot was inside the

water and rope was about 30feet and said very aspect

strengthens the defence of the accused that while fetching the

water from well, victim lost her balance and fell in the well and

therefore, the said rope having distance about 30feet and pot tied

thereto was found in the said well. Moreover, the testimony of

said panch witness further clarifies that he was residing near the

house of the accused and matrimonial life of victim Vaishali and

accused no.1 Vitthal was going on well and, also financial

condition of the accused was good which rules out the possibility

of demand of Rs.50,000/- by accused to victim for cleaning the

well and further rules out the possibility of harassment to victim by

accused on account of alleged non fulfillment of the said demand

as PW 7 Dhulaji is the independent witness and therefore, his

contention is required to be believed. Hence, further defence put

up to PW 1 that accused has been involved in this case falsely as

accused refused to reimburse the marriage expenses incurred by

PW 1 for marriage of her daughter appears to be probable.

16. That takes me to the testimony of PW 2 Rohidas i.e.

uncle of the victim, who stated that Vaishali used to tell him that

she has trouble from her husband and parents in law and they

were asking her to bring Rs.50,000/- for construction of well. He

further stated that, on the day of Rakhi Pournima of second year,

they came to know that Vaishali committed suicide by jumping into

well. In cross examination, suggestion was given to him that there

was no trouble to Vaishali and Vaishali was living peaceful life and

he deposed falsely to that effect, but same was denied by him.

However, he admitted that he has no personal knowledge how

Vaishali died whether accidentally or suicidally. As regards

allegations made by PW 2 Rohidas, it appears that according to

him, Vaishali disclosed him about harassment meted out to her by

the accused but, said alleged harassment was in the form of

trouble given by the accused to her, but PW 2 Rohidas has no

where narrated which type of trouble was given to Vaishali, but he

simply made a bald statement that Vaishali used to tell him that

she had trouble from accused. Besides, he stated that the

accused used to ask Rs.50,000/- from her for construction of well.

Significantly, P.W. 1 Uttamrao has alleged that his daughter

disclosed him that accused used to ask Rs.50,000/- from her for

the purpose of cleaning the well i.e. taking out mud from well,

whereas PW 2 stated that alleged amount was demanded for the

purpose of construction of well and accordingly and there is

discrepancy in respect of the very purpose of the alleged demand

and versions of both the said witnesses are contradictory to each

other. Pertinently, spot panchnama discloses that there was

already constructed well in the field of the accused and hence,

alleged demand for construction of well cannot be believed and

said contents of very spot panchnama falsifies the version of PW

2 Rohidas.

17. So is the position with the testimony of PW 4 Pandit

Uttamrao Shinde i.e. brother of victim and his deposition is on the

line of PW 1 Uttamrao, whereas, PW 5 Ushabai mother of victim

stated on the lines of PW 2 Rohidas Shinde as PW 4 Pandit

stated that accused demanded Rs.50,000/- for cleaning the well

whereas PW 5 Ushabai stated that alleged amount of Rs.50,000/-

was made from victim by the the accused for digging and

construction of the well. Hence, even testimonies of PW 4 Pandit

and PW 5 Ushabai are contradictory to each other on that count.

Moreover, testimony of PW 4 Pandit is the repetition of testimony

of PW 1 Uttamrao, whereas, testimony of PW 5 is the repetition of

testimony of PW 2 Rohidas and their testimonies do not assist the

prosecution case to take further ahead to connect the accused

with the crime.

18. That takes me to the medical evidence i.e. testimony

of PW 11 Dr. Haribhau Gadekar, who stated in his deposition that

he received female dead body of Mrs. Vaishali Kale of village

Maradga from Police Station, Hadgaon for postmortem purpose

on 13.8.2003. Accordingly, he performed postmortem on the said

dead body between 12.00 noon to 01.00 p.m. on the said day. On

examination of the said dead body he found that there were no

ante mortem injuries. He noticed following internal injuries :-

Brain and its coverings were congested. Larynx,

Traches and Bronchia were congested. Right and left lungs were congested, on C/s section. Frothy secretion coming through cut section. Heart was congested. On cut section. Right chamber of heart contains blood. On stomach, it

was found congested on cut section 500 ml of partially food with liquid present. Mucosa was congested. No any organic smell found liver, pancreas spleen, kidneys were found congested.

Organs of generations : There was evidence of 28 weeks of pregnancy. ON cut section of uterus

found female baby still born, weight of 900 grams. Time of death and last meal according to contents of stomach, it was found before 6 hours

of last meal.

From all these findings, according to him, cause of death was

'asphyxia due to drowning'. He stated that accordingly be

prepared postmortem report which is produced at Exh.29.

19. During the course of cross examination, he stated

that death may be accidental. He also stated that injuries

mentioned in column no.17 may be possible while taking out the

dead body. In re examination, he further stated that this case may

be accidental, suicidal or somebody pushes living person in well.

However, from postmortem examination, he could not give any

opinion whether deceased was pushed or slipped due to accident

or committed suicide.

20. In substance, according to testimony of PW 11 Dr.

Gadekar, he performed postmortem on the dead body of victim

Vaishali and he did not find any ante mortem injuries thereon and

considering the internal injuries, he stated that death was due to

'asphyxia due to drowning' which may be accidental and injuries

on the dead body specified in column no.17 may be possible while

taking out dead body from well. He further stated that this may be

case of accidental, suicidal or even somebody pushes living

person in the well but, refrained from giving any concrete opinion

whether deceased was pushed or slipped due to accident or

committed suicide. The totality of evidence of said Dr. Gadekar

discloses that deceased Vaishali met with the unnatural death,

which may be accidental or suicidal. However, possibility of

suicidal death of victim Vaishali appears to be remote considering

the factors discussed herein above and hence, it appears that the

victim sustained accidental death as stated by PW 11 Dr.Gadekar

in the cross examination which finds support from the spot

panchnama and testimony of spot panch PW 7 Dhulaji Nirmal.

21. It is also material to note the contents of A.D.R Exh.

32 which was recorded at first point of time i.e. on 12.8.2003 from

the report made by Police Patil Pralhad Kale, independent witness

and the contents thereof reflect that victim Vaishali Kale met with

the death due to fall in the water in well in their village and said

ADR coupled with postmortem notes Exh.29 and testimony of PW

11 Dr. Gadekar lead to position that the victim Vaishali died due to

asphyxia due to drowning, which is unnatural.

22. In the circumstances, after having the survey of the

entire ocular, documentary and medical evidence, I am of the view

that there are inconsistencies and deformities in prosecution case,

and hence, the prosecution case does not inspire confidence to

connect the accused nos. 1 and 3 with the crime punishable under

section 498-A of Indian Penal Code and, therefore, the conviction

and sentence imposed upon them for the said offence is

erroneous and unsustainable and therefore, same deserves to be

quashed and set aside and accused nos. 1 and 3 deserve to be

acquitted thereof and fine amount, if any, paid by them is required

to be refunded to them and their bail bonds need to be cancelled.

23. In the result, present appeal is allowed and, the

conviction and sentence imposed upon the appellants i.e. original

accused nos. 1 and 3 by judgment and order dated 14.12.2004,

rendered by learned 3rd Adhoc Additional Sessions Judge, Nanded

stands quashed and set aside and, the appellants are acquitted

for the offence with which they were charged and convicted. Fine

amount, if any, deposited by them be refunded to them. Bail bonds

of the appellants stand cancelled.

( SHRIHARI P. DAVARE ) JUDGE.

***

aaa/