The State Of Maharashtra vs Sadashiv Bodke & Ors
2017 Latest Caselaw 4235 Bom

                                                      Cri. Appeal No. 201/2000
                                          1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO. 201 OF 2000

       The State of Maharashtra
       Through Police Station Sonkhed,
       Tq. Kandhar, District Nanded.             ....Appellant.
                                                 (Ori. Complainant)

               Versus


1.     Sadashiv s/o. Ramchandra Bodke,
       Age 26 years, Occu. Agri.,

2.     Ramchandra alias Sopan Jalba
       Bodke, Age 65 years, Occu. Agri.,

       Both R/o. Vadepuri, Tq. Kandhar,
       Dist. Nanded.

3.     Madhukar s/o. Ramchandra Bodke,
       Age 30 years, Occu. Vadepuri.

4.     Sow. Gangabai w/o. Ramchandra
       Bodke, Age 55 years, Occu. Agri.,
       R/o. Vadepuri.

5.     Sow. Sangita w/o. Madhukar Bodke,
       Age 26 years, Occu. Agri.,
       R/o. Vadepuri.

6.     Baliram s/o. Khandu Bodke,
       Age 26 years, Occu. Agri.,
       R/o. Vadepuri, Tq. Nanded.                ....Respondents.
                                                 (Ori. Accused Nos.1 to 6)


Mr. P.G. Borade, APP for appellant/State.
Mr. S.S. Choudhari, Advocate for respondent Nos. 1 to 6.


                                CORAM     :   T.V. NALAWADE AND
                                              SUNIL K. KOTWAL, JJ.

                                DATED :       JULY 10, 2017.





                                                       Cri. Appeal No. 201/2000





JUDGMENT : [PER T.V. NALAWADE, J.]

.                 The appeal is filed by the State to challenge the

judgment and order of Sessions Case No. 77/1998 delivered by the

learned 2nd Additional Sessions Judge, Nanded. The respondents/

accused were chargesheeted and charged for the offences

punishable under sections 302, 304-B, 498-A and 34 of Indian Penal

Code ('IPC' for short). Only accused No. 1 - Sadashiv, husband of

deceased is convicted and sentenced for the offence punishable

under section 498-A of IPC. Other accused are acquitted of all the

offences and the husband is acquitted of the remaining offences. As

the State wants conviction for the offences punishable under section

302 or 304-B of IPC against husband and also against the other

accused, appeal is filed. Both the sides are heard.

2) Deceased - Devprayabai alias Savita was youngest sister

of first informant - Vasant Raut. Vasant Raut is a teacher. The

deceased was given in marriage on 28.5.1997 to accused No. 1 -

Sadashiv. Accused Nos. 2 and 4 are parents of accused No. 1.

Accused No. 3 is brother of accused No. 1. Accused No. 5 is wife of

accused No. 3. On the occasion of Diwali festival, the deceased had

visited her parents' house and on that occasion, she disclosed that

her husband was asking her to bring Rs. one lakh as he wanted that

Cri. Appeal No. 201/2000

money for getting employment. She complained that her husband

was asking her to terminate the pregnancy when she was carrying of

four months. She complained that on these two counts all the

accused were giving illtreatment to her. Due to this complaint,

Vasant Raut sent some relatives to the house of accused to convince

them to behave well. They returned and informed that accused were

not in a mood to listen to them.

3) After Diwali festival, deceased was sent back to

matrimonial house. On 25.11.1997 in the night time, Ramchandra,

father-in-law of deceased visited the residential place of Vasant Raut

and informed that deceased was missing since 11.00 a.m. He

informed that she had gone to the field with tiffin, but she had not

returned. The informant and his relatives went to Vadepuri, the

place of accused on that night. Search was made at the places of

relatives, but the deceased could not be traced.

4) On 26.11.1997 police search was made in the field of the

accused. There was standing hybrid crop and inside of the crop, they

noticed the dead body of the deceased. There was some smell of

poison to the substance which was oozing from the mouth of the

deceased. On 26.11.1997 Vasant gave report and on the basis of the

report, crime came to be registered for the offences punishable

Cri. Appeal No. 201/2000

under sections 302, 304-B, 498-A, 34 etc. of IPC.

5) During the course of investigation, spot panchanama was

prepared and post mortem was conducted on the dead body. Viscera

was sent to C.A. Office. C.A. Office gave report that insecticide

deltamethrine was detected. Ultimately, opinion was given that the

death took place due to poisoning. Statements of some mediators,

who had tried to settle the dispute and the statement of Vasant Raut

along with statement of one of friend of the deceased came to be

recorded. After few days, two persons like Nagorao Bapurwade of

village Vadepuri and Trimbak Dalve of the same village came forward

and gave statements that they had witnessed the incident in which

poison was administered by the accused to the deceased in the field.

Chargesheet came to be filed and during trial, the charge came to be

framed for aforesaid offences against all the accused.

6) Prosecution examined in all fourteen witnesses to prove

the offences. The accused took the defence of total denial. There

was no charge for the offence punishable under section 306 of IPC,

though the charge was framed for offence punishable under section

304-B r/w. 34 of IPC.

7) The prosecution heavily relied on the evidence of two eye

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witnesses namely Nagorao Bapurwade (PW 3) and Trimbak Dalve

(PW 5), so called eye witnesses. When the crime was registered on

26.11.1997, the statement of these two witnesses before police

came to be recorded on 3.12.1997 i.e. after about eight days. No

reason is given by these witnesses as to why they did not approach

police immediately after the incident when police were making

investigation in the village. They have not explained as to how the

police learnt that they have witnessed the incident. Thus, the delay

in disclosing the incident is not at all explained by these two

witnesses.

8) Map of scene of offence is prepared during investigation.

This record at Exh. 76 shows that the field where allegedly Nagorao

is working is situated at long distance from the spot of offence.

Similarly, the field of Trimbak is also situated at long distance and

there are many fields between their fields and the field in which the

incident took place. Further, there was standing crop of hybrid,

which was ready for harvesting in the field. These circumstances are

sufficient to create a probability that there was no possibility that

even if there was shouting, these two persons could have heard the

shouting and could have rushed to the spot of incident. Even police

were required to take search in the standing crop to trace the dead

body.

Cri. Appeal No. 201/2000

9) The evidence of these two witnesses shows that the

story given by them is not probable in nature. On one hand, they

say that they witnessed the incident of administering poison, but

Trimbak said that he thought that it was trivial quarrel and he left

the place. They did not disclose the incident to anybody prior to

3.12.1997. These circumstances are sufficient to create a probability

that they are got up witnesses and they had no opportunity to see

the incident in which poison was consumed or administered.

10) The medical evidence is not consistent with the case of

prosecution that poison was forcibly administered. No surface wound

was found on the dead body. The medical evidence of Dr. Devidas

Kanote (PW 9) shows that abdomen was distended, there was

peeling of skin at places, chest was also swollen, rigor mortis had

developed over lower extremities, but decomposition had not

started. This evidence is not consistent with the versions of the two

so called eye witnesses which shows that they had witnessed the

incident at about 4.00 p.m., before about 24 hours of P.M.

examination. In view of these circumstances, this Court holds that

the Trial Court has rightly refused to believe these two so called eye

witnesses.

Cri. Appeal No. 201/2000

11) So far as the evidence for the offence punishable under

section 498-A of IPC is concerned, it can be said that the allegations

made by the relatives and one friend of the deceased are not that

specific and believable. Vague allegations are made that on the

occasion of Diwali festival, first disclosure was made by the deceased

that there was demand of Rs. one lakh by the husband and the

husband was asking the deceased to terminate the pregnancy. One

friend of deceased has given evidence that deceased had disclosed

to her that the husband had probably illicit relations with one close

relative. However, there is no evidence of close relatives of the

deceased including the first informant, brother of the deceased that

such possibility was expressed by the deceased to them. In any

case, that conduct was of husband and not of other relatives of

husband. The allegation of illtreatment is very vague and what kind

of illtreatment was given by the relatives of the husband is not

mentioned by the relatives. In view of the specific allegations

against the husband made by the relatives, the Trial Court has

convicted the husband for the offence punishable under section 498-

A of IPC. Thus, the prosecution could not prove the offences against

the relatives of the husband beyond reasonable doubt and the

offence punishable under section 302 of IPC could not be proved

against the husband beyond reasonable doubt. There was clear

possibility of suicide committed by the deceased. The death took

Cri. Appeal No. 201/2000

place within one year from the date of marriage. But, in view of the

aforesaid circumstances, the Trial Court has held that even the

husband cannot be blamed for the death of Devpriyabai alias Savita.

This Court sees no reason to interfere in the decision given by the

Trial Court. In the result, the appeal stands dismissed.

       [SUNIL K. KOTWAL, J.]            [T.V. NALAWADE, J.]



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