Dada Eknath Amale vs State Of Maharashtra
2017 Latest Caselaw 9507 Bom

                                        1               Appeal 616 of 2002

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                       Criminal Appeal No. 616 of 2002

     Dada Eknath Amale,
     Age 24 years,
     Occupation : Agriculturist,
     R/o Shindewadi, Arangaon,
     Taluka and District Ahmednagar.               ..     Appellant.

             Versus

     The State of Maharashtra.                     .. Respondent.

                                ----
     Shri. Joydeep Chatterji, Advocate, for appellant.

     Shri. S.J. Salgare, Additional Public Prosecutor, for
     respondent.
                                  ----

                               Coram:       T. V. NALAWADE &
                                             A.M. DHAVALE, JJ.

                    Judgment reserved on     : 13 November 2017.

                   Judgment pronounced on : 12 December 2017.


     JUDGMENT (Per T.V. Nalawade, J.):

1) The appeal is filed against the judgment and

order of Sessions Case No.71/2000 which was pending in

the Court of the learned 3rd Ad-hoc Additional Sessions

Judge, Ahmednagar. The trial Court had convicted the

appellant-accused for offences punishable under sections

2 Appeal 616 of 2002

302, 201, 498-A of Indian Penal Code and imprisonment of

life is given to him. Both the sides are heard.

2) In short, the facts leading to the institution of

the present proceeding can be stated as follows :

3) The first informant, Sopan Bothe is resident of

Walki, Tahsil and District Ahmednagar. Deceased Tarabai

was his daughter and Tarabai was given in marriage to the

appellant about one and half years prior to the incident in

question. There are allegations that after one year of the

marriage, ill-treatment was given to the deceased by her

husband, present appellant and the parents of the

appellant. The husband was asking the deceased to bring

Rs.50,000/- from her parents as he wanted to purchase a

tempo. He was working as a driver. The appellant is

addicted to liquor and he used to give beating to the

deceased after consuming liquor. The deceased used to

disclose about the ill-treatment which she was receiving in

the matrimonial house from the husband and his parents

to her parents on the occasions when she used to visit the

house of her parents. The parents of the deceased and

others had tried to convince the appellant and his parents

3 Appeal 616 of 2002

to behave well and such attempts were made on 2 to 3

occasions. Even promise was given to give the amount

after making some arrangement.

4) Few days prior to Diwali festival of 1999 the

deceased had visited the house of her parents and at that

time she had injury near her left eye. She disclosed that

the husband had quarreled with her as she had not

brought Rs.50,000 and after taking liquor he had virtually

thrown a bucket at her and due to that she had sustained

injury. On that occasion the deceased had stayed in the

house of her parents for 5 to 6 days. The husband had

then taken the deceased back to the matrimonial house.

The deceased had visited the house of her parents at the

time of Diwali of 1999 and on that occasion she had

disclosed that the husband had warned her to come with

Rs.50,000 otherwise she should not return to the

matrimonial house. On that occasion she stayed in the

house of her parents for about a month but her parents

could not make arrangement of money. Then the appellant

visited the house of the parents of the deceased and he

took her to the matrimonial house.

                                       4             Appeal 616 of 2002

     5)               On 5-2-2000 at 6.00 p.m. a brother of the

appellant, namely Bapu visited the house of the parents of

the deceased and he inquired as to whether Tarabai had

come to their house. Tarabai had not come to the house of

her parents. Then the brother of the appellant informed

that on that day there was quarrel between Tarabai and

the appellant and the appellant had left Arangaon by

saying that he wanted to reach the deceased to Walki, to

the house of her parents. The brother informed that

appellant had returned alone but Tarabai was not in his

company.

6) After receiving this information, the parents

and other relatives of Tarabai started searching for

Tarabai. She was not traced on 5-2-2000 and 6-2-2000.

On inquiry the appellant and his sister expressed that she

would return but she did not return. On 8-2-2000 at 11.00

a.m. when the first informant, Sopan went to Arangaon

with his relatives, there he learnt that the dead body of

Tarabai was found in a well from Arangaon. The field

where the well is situated belongs to one Gahile.

                                          5                Appeal 616 of 2002

     7)               Somebody    from      Arangaon         informed          police

about the death and then police came to the spot. During

inquiry of unnatural death, police prepared inquest

panchanama and referred the dead body for post mortem

examination. The spot panchanama was also prepared.

Some injuries were noticed on the face and on the neck of

the deceased. Post mortem was conducted on the dead

body on 9-2-2000. The doctor gave opinion that the death

had taken place due to throttling. After receipt of the

opinion, Sopan gave report against the appellant and his

parents and the crime came to be registered for the

aforesaid offences against the three accused.

8) The present appellant came to be arrested on

9-2-2000 itself. He was referred for medical examination

and two injuries like abrasions were found on his person.

Police recorded statements of the relatives of the

deceased on parents' side and after completion of the

investigation filed charge sheet against the appellant and

his parents for the aforesaid offences. charge was framed

for the aforesaid offences. All the accused pleaded not

guilty. They took defence of total denial. The prosecution

6 Appeal 616 of 2002

examined in all seven witnesses. The trial Court has

believed the oral evidence given by the relatives of the

deceased on parents' side and the trial Court has held that

only the appellant had the opportunity to finish the

deceased and there was motive for the crime.

9) The defence has admitted the documents like

inquest panchanama which is at Exhibit 19; the spot

panchanama which is at Exhibit 22 and the post mortem

report which is at Exhibit 29. It can be said that the

defence has not disputed seriously that it is a case of

homicide. Though in the inquest panchanama some

injuries were noted, the panchas were not in a position to

give definite opinion on the basis of those injuries. There

were scratches found on the neck.

10) Dr. Ashok Ghuge (PW-5) is examined by the

prosecution to prove the post mortem report. He

conducted the post mortem examination on 8-2-2000

between 3.45 p.m. and 5.30 p.m. He found following

surface wounds on the dead body.

7 Appeal 616 of 2002

"1. Four abrasion marks on left lateral side of neck below mandible 5 cm, 7 cm, 9 cm and 12 cm below mandible on neck all 1/2 x 1/2 cm in diameter and reddish in colour.

2. Two abrasions on right side of neck below right mandible 3 cm and 4 cm from mandible on neck. 1/2 x 1/2 cm in diameter both.

3. Left ear lobule is lost. White in colour.

4. Abrasion on left cheek 1/2 x 3 cm in white colour.

5. Small bite marks seen on both eye brows and both lips by watery animals."

The doctor has given evidence that injury Nos.1 and 2

mentioned above were ante mortem in nature but the

injuries Nos.3 to 5 were post mortem in nature. Dr. Ghuge

(PW-5) has given evidence that on internal examination he

found haematoma under scalp at left fronto parietal

region of the size of 4 x 6 inches. Brain was congested. He

noticed that subcutaneous haematoma was present on the

neck anteriorly and trachea was congested. Lung was also

congested and heart was empty. 400 ml semi digested

food was found in the stomach. Haematoma present in

small bowel wall at six places.

11) Dr. Ghuge (PW-5) has given specific reasons for

opinion that the death took due to throttling as follows :-

8 Appeal 616 of 2002

"Swollen subconjunctival haemorrhage present in both eyes with both eye balls protruding. Tongue in between teeth and teeth marks present on the tongue. Tongue tip cyanosed. Blood stained oozing present from nostrils. No any oozing from mouth and ears. The above features are features for throttling. Injury Nos.1 and 2 in col. No.17 of Exhibit 29 are possible if a person sitting on knee presses the neck of the other person with the help of fingers and he resists and if the first again pressed the neck with the help of fingers. The above symptoms are noticed on the dead body and the same are mentioned in column No.21 of post mortem notes. The symptoms mentioned in column No.20 are corresponding to the symptoms mentioned in column No.17 of the P.M. notes. The injuries 1 and 2 mentioned in column No.17 are sufficient in ordinary course to cause death of a person. If neck of the person is pressed with the help of fingers the death can be resulted within six minutes. I have not noticed any symptoms of drowning. After receiving the viscera report I am firm with my opinion regarding cause of death mentioned in the P.M. report Exhibit 29."

12) Thus, the doctor has given specific opinion that

death took place due to throttling. The post mortem report

at Exhibit 29 prepared by him is consistent with his oral

evidence. In the cross-examination, it was suggested to

the doctor that the injuries which were found on the dead

body can be caused to a woman if she resists for sexual

intercourse. This suggestion was hypothetical in nature.

As the defence has admitted the post mortem report and

as this suggestion is given, this Court holds that Tarabai

died homicidal death. Opinion is given that the death took

9 Appeal 616 of 2002

place within six hours of the last meals. The doctor could

not give opinion about the time of the death which had

passed prior to the post mortem examination and he has

deposed that he cannot tell fixed time whether the death

was caused prior to 6 to 7 hours of the post mortem

examination. Rigor mortis was absent on the dead body

and no sign of decomposition was found. These

circumstances need to be kept in mind as the case of the

prosecution rests mainly on the circumstantial evidence.

13) The aforesaid evidence has ruled out the

possibility of suicide, death due to drowning. The spot

panchanama at Exhibit 22 shows that the well is situated

in village Arangaon and the land belongs to one Gahile.

The well was constructed in stones but it was not having

parapet wall. Water was having depth of 11 feet and there

were steps to the well for getting into the well. The water

was at the level of 2 feet from the last step of the well. At

the distance of 50 feet from this well there was Arangaon -

Shindewadi kaccha road. Nobody has brought on record

as to whether the well is 1situated towards side of Walki

or this well is situated at other side of village Arangaon.

10 Appeal 616 of 2002

Even the distance between the well and the residential

place of the accused is not brought on the record.

14) Sopan (PW-4), father of the deceased, has given

evidence that the deceased was cohabiting with the

accused in village Arangaon. Similar evidence is given by

other relatives of the deceased like Bajirao (PW-3) cousin

brother and Jalindar (PW-1) real brother of the deceased.

In the statement given under section 313 of the Criminal

Procedure Code the accused has stated that the deceased

was cohabiting with him at the relevant time.

15) Jalindar (PW-1), Bajirao (PW-3) and Sopan

(PW-4) have given evidence that on Saturday (5-2-2000)

the day since when the deceased was not traced, a

brother of the appellant by name Bapu had come to them

and he had made inquiry as to whether the deceased had

come to them. This evidence was put to the accused in the

statement under section 313 of the Cr.P.C. and the

accused had admitted that his brother had gone to the

house of these witnesses to make such inquiry. Sopan (PW-

4) has given evidence that the brother of the appellant

11 Appeal 616 of 2002

had informed that there was quarrel between the

deceased and the appellant and then the appellant had

left village Arangaon with the deceased by saying that he

would reach the deceased to Walki. The brother of the

accused, appellant is not examined in Court and so the

evidence of the aforesaid nature has become hearsay. In

view of provision of Sections 6 and 8 of the Evidence Act

only some part of the evidence given by Sopan (PW-4) and

other relatives can be used and it can be inferred that the

appellant had sent his brother to Walki or his brother had

come to Walki in search of the deceased. Inference is not

possible on the basis of this evidence that the deceased

had left Arangaon with accused on 5-2-2000.

16) The accused-appellant has admitted that he had

given missing report to police on 6-2-2000. That report is

given Exhibit 18. In that report also the accused had

informed to police that the deceased had left his house at

4.00 p.m. on 5-2-2000 and since then she was missing.

The trial Court has used this document to hold that the

deceased was lastly in the company of the accused. The

trial Court has committed serious error in using the

12 Appeal 616 of 2002

portion of the report and presuming that the deceased

was lastly in the company of the accused in his house. It

needs to be kept in mind that the dead body was found in

a well from Arangaon and it is not certain as to what is the

distance between the well and the residential place of the

accused. The report can be used only as a circumstance

under section 8 of the Evidence Act but the dead body was

not recovered on the basis of the information supplied by

the appellant and so only for limited purpose and under

section 8 of the Evidence Act the report can be used. On

the basis of this report it can be held that it is the accused

who had informed police that the deceased was missing

since 5-2-2000.

17) Shaikh Anwar (PW-2) and Uttam Tangade (PW-

6), the investigating officer are examined by the

prosecution to prove recovery of weapon, knife. They have

given evidence that on 11-2-2000 the accused gave

statement under section 27 of the Evidence Act and after

giving statement he took police and panchas to a spot and

from a tree he produced a knife before police. It is not the

case of the prosecution that blood was detected on this

13 Appeal 616 of 2002

knife. Though there is this evidence and the documents

like Exhibit 21 and Exhibit 22 are there, even the doctor

(PW 5) has not given evidence that knife was used against

the deceased. The doctor has given opinion that it is a

case of throttling. Thus, the aforesaid evidence on the

statement recorded is not the incriminating circumstance

in the present matter.

18) Dr. Laxman Pawar (PW-7) is examined by the

prosecution to prove that on 9-2-2000 when the doctor

examined the accused he found following two injuries on

the person of the accused.

"1. Abrasion below left elbow joint 1 x 1 cm brown black in colour.

2. Three abrasions over left side chest region below left clavicle 5 x 25 cm each. brown black in colour with scab formed."

The certificate of the injury is proved at Exhibit 41 in the

evidence of this doctor. The doctor has given evidence

that such injury can be caused if a person wants to assault

other person and he rests his knees on the ground at that

time. This opinion has no basis and this is 100%

14 Appeal 616 of 2002

hypothetical opinion. Injury No.1 was found on the left

elbow and injury No.2 was found on left side of the chest.

In the statement given under section 313 of the Cr.P.C. the

accused has contended that he jumped from tree and due

to that he had sustained these injuries. The size of the

three abrasions mentioned in injury No.2 shows that

apparently such injuries cannot be caused due to use of

nails if the deceased had offered resistance. Further the

doctor has given evidence that the age of the injury was 2

to 7 days. Thus, this evidence is also not that convincing

and it cannot become incriminating circumstance against

the accused.

19) In case of throttling, the examination of nail

clippings of the accused was essential as some part of the

skin of the deceased could have been found in the nail

clippings of the accused if he had throttled her, but no

such evidence has been collected.

20) The circumstance of last seen or custody needs

to be proved convincingly so that Court is satisfied that

provisions of Sections 106 and 114 of Evidence Act need

15 Appeal 616 of 2002

to be used against the accused. If other probability is left

due to the nature of prosecution evidence, the Court is not

expected to use these provisions of Evidence Act. In the

present matter other probabilities are available.

21) The prosecution has examined aforesaid three

witnesses to give evidence on ill-treatment. Evidence is

given for offence punishable under section 498-A IPC and

this evidence could have been used as evidence on

motive. Evidence is given that there was demand of

Rs.50,000/- from the accused-appellant as he wanted to

purchase a tempo for transport business. This demand

was made one year after the marriage and the incident in

question took place after one year and 9 months of the

marriage. Evidence of the father of the deceased shows

that on every occasion it is the accused who had taken the

deceased from the house of the parents to the matrimonial

house. The evidence does not show that on any occasion

the accused-appellant had put condition to give amount of

Rs.50,000 first for taking the deceased back to the

matrimonial house. Further, if there was such ill-treatment

then in ordinary course the father of the deceased would

16 Appeal 616 of 2002

have given report against the accused. When he learnt

about missing of the deceased on 5-2-2000 itself the

father did not approach police till 9-2-2000 till the receipt

of the opinion of the doctor who conducted the post

mortem examination. This creates a clear possibility that

the allegations made in the F.I.R. and the allegations made

by these three witnesses on ill-treatment are afterthought

in nature. The evidence on the record shows that the

deceased used to visit the house of her parents almost as

per her desire and the accused had never prevented the

deceased to visit the house of her parents. The distance

between Arangaon and Walki was hardly 8 kilometers.

Thus, evidence on motive is very weak and on the basis of

aforesaid evidence it is not possible to convict the

appellant-accused for offence punishable under section

498-A of the IPC.

22) The aforesaid evidence shows that the case of

the prosecution rests entirely on circumstantial evidence.

As the death took place away from the residential place

and nobody had seen the accused-appellant in the

company of the deceased at that time i.e. on 5-2-2000, and

17 Appeal 616 of 2002

as the doctor is not certain about the time of the death of

the deceased, it is difficult to believe that the deceased

was lastly in the company of the accused only. The

conduct of the accused of giving of the report, informing

the brother and taking steps to search the deceased was

not consistent with the guilt. It can be said that due to the

aforesaid circumstances a strong suspicion is created

against the accused but the suspicion cannot take place

of the evidence. On the basis of such pieces of evidence

which are not convincing, conviction for such serious

offence is not possible. The trial Court has considered and

used some circumstances which could not have been used

as the incriminating circumstances against the accused

and due to that the trial Court has committed error in

giving conviction. If the prosecution is not able to prove

the offence punishable under section 302, IPC, there is no

question of convicting the accused for offence punishable

under section 201 of the IPC. Similarly the evidence on

demand is based mainly on the so called disclosures made

by the deceased. As the prosecution has failed to link the

accused with the homicide, the so called disclosures also

cannot be used under section 32 of the Evidence Act

18 Appeal 616 of 2002

against the accused. Thus, conviction for the offence

punishable under section 498-A IPC is also not possible.

23) In the result, the appeal is allowed. The

judgment and order of the trial Court convicting the

accused, appellant for offences punishable under sections

302, 201, 498-A of the Indian Penal Code is hereby

quashed and set aside. The appellant is acquitted of these

offences. The bail bonds stand cancelled. Fine amount, if

paid, is to be returned to him.

                 Sd/-                              Sd/-
     (A.M. DHAVALE, J.)                    (T.V. NALAWADE, J.)


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