Bombay High Court
The State Of Maharashtra vs Hanumant Sitaram Andhale And Ors on 27 June, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 202 OF 2000
The State of Maharashtra .. Appellant
through PSO of Police Station
Parali (Rural), Dist. Beed
Versus
1. Hanumant S/o. Sitaram Andhale, .. Respondents
Age-30 years, Occu-Agri, (Orig. accused)
R/o. Helamb, Tq. Parli, Dist. Beed
2. Shrirang S/o. Bapural Holambe
Age-60 years, Occu-Retired from service,
R/o. As above
Mr.P.G. Borade, APP for the appellant/State
Mr.S.S. Rathi, Advocate for respondent Nos. 1 and 2
CORAM : S.S. SHINDE &
S.M. GAVHANE, JJ.
DATED : 27.06.2017
J U D G M E N T [PER:S.M. GAVHANE, J.] :-
. This appeal is directed against the judgment and
order dated 18.02.2000 in Sessions Case No.67 of 1998
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passed by the Additional Sessions Judge, Ambejogai,
thereby acquitting both the accused of the offences
punishable under Sections 498-A and 302 r/w 34 of the
Indian Penal Code (for short "the IPC").
2. Shortly stated the facts of the prosecution
case, are as under:-
A. The informant Dattu Vaijinath Phad (PW-4) and
Bhimrao Vaijinath Phad (PW-5) are respectively uncle and
father of deceased Urmila. They were residing at Deokara,
Tq. Ahmedpur, Dist. Latur while accused No.1 and his
maternal uncle accused No.2 were residing at Helamba, Tq.
Parali, Dist. Beed at the time of incident.
B. The deceased was married to accused No.1 four
years prior to the incident and after marriage she
started cohabiting with accused No.1. After one year of
the marriage accused No.1 started making demand of Rs.
70,000/- for purchasing the jeep. He was insisting the
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deceased to bring the said amount from her parents.
Whenever the deceased used to visit her parents house,
she used to make such complaint to her parents and
others. When she had been to her parents house for
delivery, she disclosed that accused No.1 often insisted
her to bring the said amount and for fulfillment of the
same, he used to assault her. She stayed at her parents
house for one year. Six months prior to the incident
deceased Urmila had been to the house of her parents, and
complained that her husband demanded Rs.70,000/- for
purchasing the jeep and for fulfillment of the same, he
assaulted her. Therefore, she left the house of accused.
After some days accused Nos.1 and 2 came there and
demanded Rs.70,000/- for purchasing the jeep. They
assured the parents of deceased Urmila that if the amount
is paid they would not give any ill-treatment to the
deceased. In order to avoid such ill-treatment and for
the happy life of daughter, the father of deceased Urmila
paid Rs.50,000/- to accused Nos.1 and 2 in presence of
Sarpanch of the village Deokara namely Janardhan Phad
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(PW-10), Namdeo Gite and Shivram Gite, resident of same
village. Thereafter, the deceased went to her in-laws
house alongwith the accused.
C. Thereafter, accused No.1 and deceased went to
Bombay and stayed there for four to five months for their
earning. Thereafter, they returned from Bombay at their
village for about 15 days. The accused warned that she
should bring Rs.20,000/- and a cooler, from her parents
and for complying said demand accused No.1 assaulted
deceased. Then she left the house and went to the house
of her parents. Accused No.2 promised the parents of the
deceased that if the demand of a cash amount of Rs.
20,000/- and a cooler has been given up and in future
there would be no any ill-treatment to the deceased.
Thereafter, he took the deceased to the house of her
husband and at that time PW-5 father of the deceased had
also accompanied her.
D. The deceased was taken to her husband's house on
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09.06.1998 in the evening and on the same day there was
quarrel between her and accused No.1. On the next day
i.e. 10.06.1998 also there was quarrel between them and
accused No.1 told her that she should tell her father to
re-convey his land which was sold to her father for Rs.
70,000/- as accused No.1 was in need of said amount.
Further it is alleged that on 11.06.1998 early in the
morning at about 07.00 am the quarrel took place between
deceased and accused No.1. At that time also accused No.1
told her to tell her father to re-convey the land in his
name.
E. On 12.06.1998 while informant (PW-4) and PW-5
were at their village, one Prabhu Palvade from the
village of accused came to them and told them that the
deceased is killed in the field. Thereupon, PW-4 Uncle,
father (PW-5), mother of the deceased and other relatives
including Sarpanch came to field of accused No.1 in
Helamb Shivar which is known as Buruj field and they saw
dead body of the deceased lying under Moha tree. They saw
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axe lying near the dead body and deceased was stained
with the blood. They came to know that on 11.06.1998 in
the morning at 09.00 am the deceased and her husband
accused No.1 had gone to their field. It is alleged that
accused No.1 was demanding Rs.50,000/- for purchasing
jeep since last two years. So also, accused No.2 was
saying accused No.1 to take that amount. The father of
the deceased was not in a position to give the said
amount. Therefore, since last two years the accused were
harassing the deceased. It is alleged that on 11.06.1998
in the evening under Moha tree accused No.1 killed the
deceased by the axe by assaulting on her cheek and neck.
PW-4 uncle of the deceased lodged the complaint on
12.06.1998 against accused in the Police Station, Parali
(Rural) making above said allegations. Treating the said
complaint as FIR. PSI Chavan (PW-13) registered the Crime
No.186/1998 against the accused for the offences
punishable under Sections 498-A and 302 read with Section
34 of the IPC and commenced the investigation.
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F. During the investigation PSI Chavan on
12.06.1998 prepared the inquest panchanama in presence of
Panchas Balaji Andhale, Pralhad Andhale and Laxmibai
Murkute and panchanama of seizure of clothes on the
person of the deceased which are not disputed by the
accused. Then the dead body was sent to Primary Health
Center, Ghatnandur for postmortem examination and Dr.
Anant Gite (PW-12) and Dr. Ghule conducted the postmortem
on 12.06.1998 between 04.00 to 05.00 p.m. and issued
postmortem report (Exh.36). They opined that the cause of
death was due to hemorrhagic shock secondary to rupture
of left common carotid artery due to incised neck
injuries. So also, they had issued the provisional
postmortem report (Exh.35). Thereafter, PSI Chavan
visited the spot of incident i.e. Buruj field of accused
No.1 on 12.06.1998 and prepared panchanama in presence of
the panchas Mr. Balaji Andhale and Mr. Pralhad Andhale.
He seized the axe, earth mixed with blood and simple
earth from the spot of incident under the same panchanama
with map. He recorded the statements of father, mother of
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the deceased and Sarpanch of village of father of the
deceased. He also recorded statements of uncle and
brother of accused No.1.
G. The Investigating Officer PIS Chavan on
30.06.1998 prepared memorandum of panchanama of accused
No.1 while said accused was in the police custody, in
presence of panchas Vitthal Phad and Madhukar Dahiphale
that he has hidden his shirt and pant along the canal and
said clothes were accordingly seized and panchanama (Exh.
39) was prepared. On the same day PSI Chavan prepared
memorandum of panchanama of accused No.1 that he would
show the spot where he had left the axe and accordingly
said memorandum of panchanama (Exh.40) was prepared in
presence of panchas Balaji Andhale and Pralhad Andhale.
He then sent the seized weapon and clothes of the
deceased and accused No.1 to the Chemical Analyzer for
analysis and collected the report of the Chemical
Analyzer. On completion of the investigation he submitted
charge-sheet in the Court of Judicial Magistrate, First
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Class, Ambejogai who committed the case to the Court of
Additional Sessions Judge, Ambejogai as the offence under
Section 302 of the IPC is exclusively triable by the
Sessions Court.
3. Learned Additional Sessions Judge, Ambejogai
framed the charge against the accused for the offences
punishable under Sections 498-A and 302 read with Section
34 of the IPC to which they pleaded not guilty and
claimed to be tried. Their defence as it appears from
the trend of cross-examination of the prosecution
witnesses and their statements under Section 313 of the
Code of Criminal Procedure is that accused No.1 was in
need of money therefore, he sold his land to PW-5 father
of deceased for Rs.70,000/- and accused No.1 is
cultivating said land. There is a dispute between him
and his step-brother in respect of land. As one of his
real brother is missing since long his step-brothers had
started claiming his (his brother's) share. On advise of
his father-in-law Bhimrao (PW-5) he transferred his land
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in the name of his (PW-5's) son. In order to grab the
property his father-in-law implicated him in this false
case. Accused No.2 in his statement under Section 313 of
the Code of Criminal Procedure stated that Shankar
Andhale, Ex-Police Patil is in inimical terms with him,
so he managed to implicate him falsely. There are civil
litigation pending between him and Shankar Andhale. In
order to take revenge, he implicated him falsely. It was
transpired during the investigation that the accused No.1
sustained injuries and on 12.06.1998 Dr. Ramgopal
Madanlal Biyani (PW-14) examined accused No.1 and issued
injury certificate (Exh.64).
4. To prove the charge against the accused, the
prosecution has examined as many as fourteen witnesses
and relied upon the above said panchanamas. On
considering the evidence adduced by the prosecution the
learned trial Court held that the prosecution has failed
to prove the offences under Sections 498-A and 302 r/w
Section 34 of the IPC against the accused and acquitted
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them of the said offences by the judgment and order dated
18.02.2000. Therefore, this appeal by the State against
the acquittal of the respondents/accused.
5. We have heard the learned APP appearing for the
appellant/State and counsel appearing for the
respondents/accused and with their able assistance we
have perused the evidence and we have gone through the
impugned judgment and order.
6. Learned APP appearing for the appellant/State
submitted that incident occurred within seven years of
marriage of the deceased with accused No.1. There is
evidence of father (PW-5), mother (PW-11), uncle (PW-4)
of the deceased and Sarpanch (PW-10) of the village of
PW-5 showing that the accused caused cruelty to the
deceased for demanding of Rs.70,000/- and the amount of
Rs.50,000/- was paid to the accused. There is evidence on
record that for remaining amount of Rs. 20,000/- accused
ill-treated the deceased. Therefore, the trial Court
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ought to have accepted evidence of these prosecution
witnesses to prove offence under Section 498-A against
both the accused. Learned APP further submitted that
there is evidence of PWs.6,7 and 8 that they had seen the
deceased in the company of accused No.1 on the day of
incident between 02.00 to 03.00 p.m. and then admittedly
dead body was found. As such, when deceased was lastly
seen in the company of accused No.1 he is responsible for
the death of deceased. Thus, learned APP has prayed to
allow the appeal and to convict the accused for the
offences with which they were charged.
7. On the other hand learned counsel appearing for
the respondents/accused submitted that there is no
consistency in the evidence of PWs.4,5,10 and 11 who have
been examined by the prosecution to prove the alleged
cruelty to the deceased by the accused. As regards the
evidence of PWs.6,7 and 8 they have not supported the
prosecution case and therefore, it cannot be said that
the deceased was lastly seen in the company of the
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accused No.1 and therefore, accused No.1 is responsible
for death of the deceased. Learned counsel appearing for
the accused further submitted that the view taken by the
trial Court is possible view and there is no error in
appreciating the evidence by the trial Court. As such
according to him there is no ground to infer with the
impugned judgment and order of acquittal of the accused
and accordingly he has claimed to dismiss the appeal.
8. Since this appeal is against the acquittal,
before examining the evidence adduced by the prosecution
to see whether the acquittal of the accused is proper and
the view taken by the trial Court was reasonable and
probable or otherwise it is necessary to bear in mind the
principle in this respect laid down by the Apex Court in
the case of Murlidhar alias Gidda and another Vs State of
Karnataka, 2014(4)Mh.L.J.(Cri)353 wherein in para No.12
the Apex Court has held thus:
"12. The approach of the appellate Court in
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the appeal against acquittal has been dealt with
by this Court in Tulshiram Kanu Vs State, AIR
1954 SC 1, Madan Mohan Singh Vs State of U.P.,
AIR 1954 SC 637, Atley Vs State of U.P., AIR
1955 SC 807, Aher Raja Khima Vs State of
Saurashtra, AIR 1956 SC 217, Balbir Singh Vs
State of Punjab, AIR 1957 SC 216, M.G. Agrawal
Vs State of Maharashtra, AIR 1963 SC 200, Noor
Khan Vs State of Rajasthan, AIR 1964 SC 286,
Khedu Mohton Vs State of Bihar, (1970) 2 SCC
450, Shivaji Sahabrao Bobade Vs State of
Maharashtra, (1973) 2 SCC 793, Lekha Yadav Vs
State of Bihar, (1973) 2 SCC 424, Khem Karan Vs
State of U.P., (1974) 4 SCC 603, Bisan Singh Vs
State of Punjab, (1974) 3 SCC 288, Umedbhai
Jadavbhai Vs State of Gujrat, (1978) 1 SCC 228,
K. Gopal Reddy Vs. State of A.P., (1979) 1 SCC
355, Tota Singh Vs State of Punjab, (1987) 2 SCC
529, Ram Kumar Vs State of Haryana, 1995 Supp
(1) SCC 248, Madan Lal Vs. State of J & K,
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(1997) 7 SCC 677, Sambasivan Vs State of Kerala,
(1998) 5 SCC 412, Bhagwan Singh Vs State of
M.P., (2002) 4 SCC 85, Harijana Thirupala Vs
Public Prosecutor, High Court of A.P., (2002) 6
SCC 470, C. Antony Vs K.G. Raghavan Nair, (2003)
1 SCC 1, State of Karnataka Vs K. Gopalkrishna,
(2005) 9 SCC 291, State of Goa Vs Sanjay
Thakran, (2007) 3 SCC 755 and Chandrappa,
Chandrappa Vs State of Karnataka, (2007) 4 SCC
415. It is not necessary to deal with these
cases individually. Suffice it to say that this
Court has consistently held that in dealing with
appeals against acquittal, the appellate Court
must bear in mind the following : (i) There is
presumption of innocence in favour of an accused
person and such presumption is strengthened by
the order of acquittal passed in his favour by
the trial Court, (ii) The accused person is
entitled to the benefit of reasonable doubt when
it deals with the merit of the appeal against
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acquittal, (iii) Though, the power of the
appellate Court in considering the appeals
against acquittal are as extensive as its powers
in appeals against convictions but the appellate
Court is generally loath in disturbing the
findings of fact recorded by the trial Court. It
is so because the trial Court had an advantage
of seeing the demeanor of the witnesses. If the
trial Court takes a reasonable view of the facts
of the case, interference by the appellate Court
with the judgment of acquittal is not justified.
Unless, the conclusions reached by the trial
Court are palpably wrong or based on erroneous
view of the law or if such conclusions are
allowed to stand, they are likely to result in
grave injustice, the reluctance on the part of
the appellate Court in interfering with such
conclusions is fully justified, and (iv) Merely
because of the appellate Court on re-
appreciation and re-evaluation of the evidence
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is inclined to take a different view,
interference with the judgment of acquittal is
not justified if the view taken by the trial
Court is a possible view. The evenly balanced
views of the evidence must not result in the
interference by the appellate Court in the
judgment of the trial Court."
9. We have carefully considered the submissions
made by the learned APP appearing for the appellant/State
and learned counsel appearing for the respondents/accused
and evidence adduced by the prosecution. As regards the
offence under Section 498-A of the IPC the prosecution
has mainly relied upon the evidence of PWs. 4,5,10 and
11. In his evidence PW-4 who is uncle of deceased has
stated that the deceased Urmila was married to accused
No.1 four years prior to the incident. After the marriage
she was continuously cohabiting with accused No.1 and
thereafter because of some differences she had been to
her parents house. After one year of the marriage
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accused No.1 started demanding an amount of Rs.70,000/-
for purchasing the jeep and often insisted the deceased
to bring that much amount from her parents. He deposed
that his brother (PW-5) told him that he paid Rs.
50,000/- to accused No.1. When amount was paid he was out
of station. After the amount was paid the deceased went
to her in-laws' house for cohabitation. Thereafter for
some days the accused gave good treatment to the
deceased. The incident took place after one and half
month of the amount was paid. He stated that Sarpanch of
their village, Namdeo Gutte and Narhari Gutte were
present when the amount was paid to accused No.1. Further
he deposed that the deceased had come to her parents
house for delivery and son was born to her. She did not
disclose him anything when she had come for delivery.
Four days prior to the incident the accused took the
deceased from their house. When the deceased had occasion
to meet him she complained that accused No.1 used to
assault her and used to ill-treat her.
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10. PW-4 stated that one Prabhu Palvade had been to
their house and informed that the deceased has been
killed in the field. Thereafter, he, his brother Bhimrao
(PW-5), wife of PW-5 and other relatives went to Helamb
village of the accused and they saw dead body under Moha
tree in the field. Axe was lying by the side of the dead
body. The deceased had bleeding injuries. His brother
(PW-5) became unconscious. Therefore, he went to police
station and made report to the police, it was reduced
into writing, as per Exh.24.
11. PW-4 further stated that when lastly the
deceased was taken to the house of her husband accused
No.1 and his maternal uncle accused No.2, at that time he
was out of station and his brother told the same to him.
So also, his brother told him that when he paid Rs.
50,000/- to accused No.1 he was accompanied by accused
No.2. He stated that when the deceased had come to
delivery she made a complaint that her husband used to
demand money and she did not disclose him that accused
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No.2 had also demanded Rs.70,000/- and for fulfillment of
the said demand he gave ill-treatment to her. The APP
cross-examined PW-4 and in the said cross-examination he
has denied that the deceased had also disclosed him that
accused No.2 gave her ill-treatment and he is deposing
false to save accused No.2.
12. In the cross-examination on behalf of accused
PW-4 stated that on the day he lodged the report. His
brother disclosed him that accused No.1 often demanded
Rs.50,000/- and he had also told him that accused No.1
demanded cash for purchasing the jeep. He stated that his
brother also disclosed him that he has no capacity to pay
amount and so amount was not paid. He also stated that he
has no personal knowledge and he narrated the facts to
the police as disclosed by his brother and denied that
his brother did not disclose anything to him and he is
deposing false.
13. From the above evidence of PW-4 it appears that
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according to him after one year of the marriage accused
No.1 started demanding an amount of Rs.50,000/- for
purchasing jeep and often insisted the deceased to bring
that much amount from her parents. But he has not stated
that the deceased had told the same to him. On the
contrary he stated that when the deceased had came for
delivery to their house she did not disclose anything to
him. So also, it is clear from his evidence that an
amount of Rs.50,000/- which was allegedly paid to accused
No.1 by his brother (PW-5) was not paid in his presence
and PW-5 told him about the same. So also, it is clear
from his evidence that only on the day of lodging FIR
(Exh.20) his brother disclosed him that accused No.1
often demanded an amount of Rs.50,000/- for purchasing
the jeep and that his brother told him that he has no
capacity and so no amount was paid. So also, he stated
that he has no personal knowledge and he narrated the
facts to the police as disclosed by his brother. Thus, he
has no direct knowledge about the demand of money by
accused No.1 from the parents of the deceased. So also,
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as referred earlier he stated that deceased did not
disclose to him that accused No.2 demanded an amount of
Rs.20,000/- and for fulfillment of the same ill-treated
her. Thus the evidence of PW-4 uncle of the deceased is
not sufficient to infer that the accused caused cruelty
to the deceased for fulfillment of their demand of money.
14. PW-5- Bhimrao father of the deceased has also
stated that marriage of the deceased with accused No.1
was solemnized four years prior to the incident and about
relationship of accused No.1 with accused No.2 as per the
case of the prosecution. He stated that at the time of
incident the deceased had son aged 1 to 11/4 years. The
accused had given good treatment to the deceased upto one
year after the marriage. After one year accused No.1
started demanding Rs.70,000/- for purchasing jeep and
often insisted deceased for bringing the amount from her
parents. He stated that six months before the incident
deceased had been to his house. She complained to him
that her husband accused No.1 demanded Rs.70,000/- for
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purchasing jeep and for fulfillment of the same he
assaulted her. Therefore, she left her house. After some
days of her coming to his house both accused had come to
him. They demanded Rs.70,000/- for purchasing jeep. They
assured that if he gives the amount they would not ill-
treat the deceased. He stated that only to avoid ill-
treatment and that his daughter should live happy life,
he called two persons and in their presence paid Rs.
50,000/- to both the accused. That amount was paid in
presence of Janardhan Phad Sarpanch of their village,
Namdeo and Shivram. Thereafter, the deceased was sent to
her in-laws house alongwith accused.
15. PW-5 has further deposed that two years after
the marriage the deceased had been to his house and
stayed for one year. She stayed with him for one year
because accused No.1 often insisted her for bringing the
amount and for fulfillment of his demand he gave her ill-
treatment. The deceased had been to his house for her
delivery. When she had been to his house she complained
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him that at the time of leaving her in-laws house her
husband accused No.1 and his maternal uncle accused No.2
warned her that if she wanted to return back she should
bring Rs.20,000/- cash and one cooler. He did not give
any cash or a cooler to the deceased. Thereafter, the
deceased and her husband went to Bombay for earning and
stayed there for 4 to 5 months. From Bombay the deceased
directly came to his house. At that time she complained
that her husband told her to bring Rs.20,000/- and a
cooler and for fulfillment of said demand he gave ill-
treatment to her.
16. In the cross-examination PW-5 stated that he had
stated before police that when two years after the
marriage the deceased had been to him, she complained him
that both the accused used to demand Rs.70,000/- for
purchasing jeep and for this they gave ill-treatment to
her. So also, he stated that he had stated before police
that when the deceased had been to his house for delivery
she complained that the accused No.1 warned her that she
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should bring Rs.20,000/- and a cooler. So also, he stated
before the police that the deceased directly came to him
from Bombay and complained that her husband often
demanded Rs.20,000/- and a cooler and for this he gave
ill-treatment. He could not assign the reason of absence
of above all the facts in his statement before police.
Thus his evidence that the accused demanded Rs.70,000/-
and a cooler and caused ill-treatment to the deceased for
fulfillment of the said demand amounts to material
omissions in his statement before the police and
improvement while deposing before the Court. So also, it
is pertinent to note that PW-5 stated about demand of a
cooler by the accused while PW-4 uncle of the deceased
has not stated in respect of the said demand by the
accused.
17. It has further come in the evidence of PW-5 that
he got transfered 6-Acres land of accused No.1 in the
name of his son Ashruba. This transaction took place
three years before. Those days were of summer season. As
accused No.1 was indebted, he was intending to dispose of
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the property with an intention to retain property for
accused No.1 and his son he paid Rs.70,000/- to him
(accused No.1) and got the land transferred in the name
of his son. Both the accused were present at the time of
said transaction and they had told him that accused No.1
was indebted. They had also told him that accused No.1
raised the loan for marriage of his sister and he
intended to dispose of the property to others. He further
stated that he does not know for what purpose he (accused
No.1) spent that amount. He had paid Rs.70,000/- to
accused No.1 at his house. 10 to 15 days after payment he
got executed the registered document. Pandit Sopan Gutte
resident of Deokara, Namdeo Sitaram Palvade resident of
Helamb were present at the time of this document. These
persons attested the said document. Pandit Sopan is a
cousin of his wife. Narhari Gutte and Namdeo Gutte and
Pandit are brothers interse. He denied that said persons
are real brothers of his wife. He stated that he does not
re-collect the day, date, month and year of which the
amount was paid to accused No.1 for purchasing jeep. He
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stated that amount was with him and some was borrowed
from others. He denied that he deposed false that Rs.
50,000/- were paid to accused No.1 for purchasing jeep
and Rs.70,000/- were paid for discharging debt. Moreover,
he stated that he did not make enquiry with accused No.1
and deceased as to why he has not purchased the jeep.
When as per the evidence of PW-5 he paid Rs.50,000/- to
accused No.1 for purchasing jeep, in fact he should have
asked accused No.1 as to whether he has purchased the
jeep. But, admittedly he did not ask the same to accused
No.1. When as per his above evidence he got the land of
accused No.1 transferred in the name of his son and gave
Rs.70,000/- to accused No.1 as he was indebted
possibility that he paid only Rs.50,000/- out of said Rs.
70,000/- and an amount of Rs.20,000/- was due to him to
accused No.1 cannot be denied. But PW-5 is deposing that
he paid Rs.50,000/- to accused No.1 on his demand for
purchasing the jeep as alleged by the prosecution. In the
above circumstances the evidence of PW-5 is not
believable to hold that the accused caused cruelty to the
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deceased.
18. The next witness on cruelty is Janardhan Ramrao
Phad (PW-10) the Sarpanch of village of PW-5 father of
the deceased. He stated about marriage of the deceased
with accused No.1. He stated that the deceased complained
him that accused No.1 used to give ill-treatment to her
and used to demand cash amount for purchasing jeep and
she made such complaint some days prior to the incident.
Thereafter, PW-5 father of the deceased told him that
accused No.1 demanded Rs.70,000/- for purchasing jeep.
Thereafter, accused No.1 came to house of PW-5. PW-5
called him at his house. He went there and PW-5 disclosed
him that accused No.1 demanded Rs.70,000/- and he paid
Rs.50,000/-. According to him PW-5 paid Rs.50,000/- to
accused No.1. Accused No.2 was also there. After PW-5
paid Rs.50,000/- to accused both the accused assured that
in future no any harassment, ill-treatment would be
caused to the deceased. Thereafter, accused took Urmila
the deceased. After some days the deceased came back to
( 29 ) criapl202.00
her parents house. He had no occasion to meet her.
19. In the cross-examination PW-10 stated that he
was not present at the time of settlement of marriage of
the deceased with accused No.1. He does not remember the
day, date and month on which the amount was paid. Besides
the accused, he, PW-5 and Shivram were only present at
that time of payment and nobody else was there. According
to him that was rainy season when the payment was made to
the accused. As referred earlier it has come in the
cross-examination of PW-5 that an amount of Rs.50,000/-
was paid to the accused in Summer season while this
witness has stated that it was rainy season when amount
was paid. Thus, there is no consistency in the evidence
of PW-5 and PW-10 as to when amount of Rs.50,000/- was
paid to the accused. So also, as referred earlier it has
come in the evidence of father of the deceased that when
the amount was allegedly paid to the accused Janardhan
Phad (PW-10), Nandeo Gutte and Narhari were present and
he has not stated that Shivram was present at that time.
( 30 ) criapl202.00
Therefore, the evidence of PW-10 that except he, Bhimrao
Phad (PW-5) and Shivram nobody else was present at the
time of payment to accused, is not believable.
20. So also, in the cross-examination PW-10 has
stated that police recorded his statement 8 to 10 days
after the incident. He stated that he stated before
police that the deceased Urmila disclosed him that
accused used to demand cash for purchasing the jeep and
for that they used to give ill-treatment to her. So also,
he stated before police that PW-5 father of the deceased
disclosed that accused demanded Rs.70,000/- for
purchasing jeep. Moreover, he stated that he had stated
to police that two days prior to the incident both
accused had came to Deokara and assured that he will not
give any ill-treatment to the deceased in future. He
could not assign why above said facts are not appearing
in his statement before police. Moreover, he has stated
that he had not stated to police as per the portion
marked in his statement that PW-5 told him that accused
( 31 ) criapl202.00
No.1 demanded Rs.70,000/- but he had only Rs.50,000/-. So
also, he stated that he had not stated before police that
Narhari and Namdeo were not present when the amount was
paid to the accused. Thus, evidence of PW-10 referred to
above is amounting to material omission in his statement
before police and improvement while deposing before the
Court. Therefore he being a Sarpanch of village of PW-5
possibility of his supporting PW-5 without any knowledge
of cruelty to the deceased cannot be ruled out.
Therefore, his evidence is not sufficient to infer that
accused caused cruelty to the deceased on account of
demand of money as claimed by him.
21. The next evidence on cruelty is of Anusayabai
Phad (PW-11) mother of the deceased. Her evidence is that
marriage of the deceased was performed with accused No.1
before four years of the incident. Since two years prior
to the incident in-laws of the deceased had started ill-
treatment to the deceased. Two years prior to the
incident the deceased had came to her house for delivery
( 32 ) criapl202.00
at that time she disclosed to her that both the accused
used to give ill-treatment to her. She has also disclosed
that accused No.1 husband of deceased made a demand of
Rs.70,000/- for purchasing jeep. She stated that six
months prior to the incident they paid Rs.50,000/- to
both the accused. They had been to their house and
assured that they would not give ill-treatment to the
deceased in future and thereafter the amount was paid.
The said amount was paid in presence of Shivram and
Sarpanch Janardhan. Therefore, accused No.1 and deceased
went to Bombay for 5 to 6 months. After they returned
from Bombay they stayed at Helamb for 15 days.
Thereafter, both accused assaulted deceased and drove
away her. The deceased was driven out to 10 to 12 days
prior to the incident. The deceased came to their house
and complained that accused assaulted and drove away her
threatening that she should bring Rs.20,000/- and a
cooler. Three days prior to the incident accused No.2
came to their house and said that the demand of cash Rs.
20,000/- and a cooler is given-up and no such demand will
( 33 ) criapl202.00
be made and that good treatment would be given in future
and asked them to send the deceased. Thereafter, the
deceased was sent with both the accused and PW-5 also
accompanied them. She stated that for the first time two
years prior to the incident when the deceased had come to
their house complained that the accused made demand of
Rs.70,000/- for purchasing jeep and for that they
assaulted her. The deceased stayed at their house for one
year when she had come for delivery and she stayed at
their house, as there was demand of cash for purchasing
jeep. She has also stated that the deceased has one son.
Thereafter, she had stated about the message given by one
Prabhu Palvade about death of the deceased.
22. In the cross-examination PW-11 has stated that
fifteen days prior to the incident the deceased
complained that the accused made a demand of Rs.20,000/-
and a cooler. 2 to 4 days after payment of Rs.50,000/-
accused No.1 and the deceased left for Bombay. Narhari
and Namdeo her brothers were present while making payment
( 34 ) criapl202.00
and no any document was got executed from accused No.1 as
a security for payment of Rs.50,000/-. She stated that
she had not stated as per the portion marked-A in her
statement before police. She stated that it did not
happen that when her daughter the deceased had been to
her house for delivery she made a complaint that accused
demanded Rs.20,000/- and a cooler and for that accused
No.1 used to assault her. She stated that she had not
stated as per portion marked-B in her statement before
police. Both the portions marked-A and B have been proved
by the Investigating Officer PSI Chavan (PW-13).
23. Moreover PW-11 has stated that she had stated
before police that when the deceased had been to her
house for delivery the accused demanded Rs.70,000/- for
purchasing jeep. So also, she stated before the police
that six months prior to the incident Rs.50,000/- was
paid to the accused. So also, she had stated before
police that Bhimrao was present at the time of payment to
the accused. She had stated before police that at the
( 35 ) criapl202.00
time of payment to the accused, the accused assured that
they would not give ill-treatment to the deceased. She
stated that she had stated before police that the
deceased complained her that she was driven out by the
accused. So also, she stated that she had stated before
police that when the deceased had been to their house for
her delivery she complained that accused made a demand of
Rs.50,000/- for purchasing jeep. She could not assign
reason why the above facts are not mentioned in her
statement before police. Thus, the evidence of PW-11
regarding demand of Rs.50,000/- by the accused for
purchasing jeep, they had paid Rs.50,000/-, that at that
time Shivram was present, that at that time accused said
that they would not ill-treat the deceased and when the
deceased had come to their house (paternal house) for
delivery she complained about demand of Rs.50,000/- by
the accused for purchasing jeep amounts to material
omission in her statement before police and improvement
while deposing before the Court and hence the evidence of
PW-11 in all above respect is not believable.
( 36 ) criapl202.00
24. It has further come in the evidence of PW-11
that about 3 months before accused No.1's 6-Acres land
was got transferred in the name of her son Ashruba.
Accused No.1 is cultivating that land and mother of
accused No.1 was cultivating when the evidence of this
witness was recorded. Accused had come to them (witness
and others) and told that they are indebted to Rs.
70,000/- and that they are in need of money. So, to
discharge the debt, they put the land for sale, she and
her husband thought that if accused No.1 sold the land
there would not be any earning source to their daughter
the deceased and her son, therefore, they paid Rs.
70,000/- to the accused and got executed the sale deed of
6-Acres land of accused No.1 in the name of their son
Ashruba. After execution of sale deed so many times
accused No.1 had been to their house. She stated that he
did not disclose to whom he was indebted and how much
amount he applied for discharging the debt. She stated
that she does not recollect in which Marathi month the
( 37 ) criapl202.00
amount was paid. The amount was paid in the month of
Sankrant. From the above evidence of PW-11 it is clear
that as accused No.1 was indebted to Rs.70,000/- he
transferred his 6-Acres land in the name of his brother-
in-law Ashruba son of PW-5 & 11 and sale deed was
executed and PW-5 and 11 had paid Rs.70,000/- to accused
No.1. Therefore, it cannot be said that PW-5 and 11 in-
laws of accused No.1 had paid Rs.50,000/- to accused No.1
for purchasing jeep or that accused were making demand of
Rs.70,000/- for purchasing jeep as alleged by the
prosecution. As stated earlier PW-4 has stated that
alleged amount of Rs.50,000/- was paid to the accused in
Summer season while PW-5 stated that it was paid in Rainy
season and PW-11 states that said amount was paid in the
month of Sankrant which is usually in the month of
January. Therefore, the evidence of all these witnesses
as to when amount of Rs.50,000/- was paid to accused No.1
for purchasing jeep is not believable. Therefore, there
is substance in the defence of the accused that whatever
amount was paid by PW-5 to the accused was paid as
( 38 ) criapl202.00
accused No.1 was indebted and for the security of the
said amount accused No.1 had transferred his 6-Acre land
in the name of his brother-in-law Ashruba.
25. Another aspect to be noted is that admittedly
the prosecution has not examined witnesses Narhari and
Shivram in whose presence allegedly PW-5 father of the
deceased had given Rs.50,000/- to the accused for
purchasing jeep on their demand and as noted earlier
there is also no consistency in the evidence of PWs-4,5
and 11 as regards the presence of above witnesses at the
time of payment and about season when the said amount was
paid. Therefore, it cannot be said that accused caused
cruelty to the deceased for fulfillment of their unlawful
demand of Rs.70,000/- for purchasing jeep as alleged by
the prosecution. Therefore, we hold that the prosecution
has failed to prove offence under Section 498-A r/w
Section 34 of the IPC against the accused. Trial court
has rightly held so.
( 39 ) criapl202.00
26. The case of the prosecution is that death of the
deceased was homicidal. To prove the same the prosecution
has mainly relied upon the evidence of Dr.Anant Gite
(PW-12) and postmortem report (Exh.36) issued by him. Dr.
Anant Gite in his evidence stated that on 12.06.1998 a
dead body of deceased Urmila was brought for autopsy in
Primary Health Centre, Ghatnandur. He and Medical Officer
B.M. Ghule conducted postmortem between 04:00 to 05:00 pm
and following external injuries were found on the dead
body.
1. incised injury over left cheek in line
of L+ mandible having size 6x2x2cm causing
fracture of left mandible.
2. incised wound over neck anteriorly
extending from mid line to left side, size 4 x 2
x 2 cm causing fracture of hyoid bone and
causing rupture of left commoncariotid artery.
3. incised injury over neck a terioly
below injury No.2 3 x 2 x 2 cm.
4. Multiple abrasions and contusions over
( 40 ) criapl202.00
right upper extremity.
5. contusion over left arm posteriorly,
size 6 x 2 cm.
. Dr. Anant Gite further stated that above
injuries were ante mortem. Brain matter liquified.
Trachia was injured. Both lungs were congested. Stomach
found containing semi solid food, small intestine found
containing liquid food.The large intestine found
containing fecal matter. Vicera was not send for Chemical
Analyzer. According to him the cause of death was due to
hemorrhagic shock secondary to rupture of left common
cartiod artry due to incised wound. There is no
suggestion to the Doctor on behalf of the accused that
death of the deceased was accidental or suicidal.
Postmortem report (Exh.36) issued by above said Doctors
also shows the above said cause of death as deposed by
Dr. Gite. Thus, on the basis of above evidence we hold
that death of the deceased was homicidal. The trial Court
has rightly held so.
( 41 ) criapl202.00
27. Now the question arises whether the accused are
responsible for death of the deceased. There is no direct
evidence to connect the accused with the death of the
deceased and the case is based on circumstantial
evidence. Before considering the circumstances relied
upon by the prosecution to connect the accused with the
crime in question, it is necessary to refer settled legal
position as regards appreciation of circumstantial
evidence, laid down by the Apex Court, in the case of
Sharad Badrichand Sarda Vs State of Maharashtra (AIR
1984 Supreme Court 1662) which has been reiterated by the
Apex Court in Kishore Chand VS State of Himachal Pradesh
(1990 Cr.L.J. 2289 (SC)), wherein it was held as under:-
"(i) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established. The circumstances concerned
'must or should' not 'may be' established.
(2) the facts so established should be
consistent only with the hypothesis of the guilt
( 42 ) criapl202.00
of the accused, that is to say, they should not
be explainable on any other hypothesis except
that the accused is guilty.
(3) the circumstances should be of a
conclusive nature and tendency.
(4) they should exclude every possible
hypothesis except that one to be proved, and
(5) There must be a chain of evidence so
complete as not to leave any reasonable ground
for the conclusion consistent with the innocence
of the accused and must show that in all human
probability the act must have been done by the
accused."
28. Now coming to the circumstantial evidence, the
prosecution has relied upon the following circumstances,
to connect the accused with the death of the deceased.
1. On 11.06.1998 the deceased was lastly
seen in the company of accused No.1 and on the
next day she was found dead.
( 43 ) criapl202.00
2. Finding of injury on the person of
accused No.1
3. Seizure of axe from the spot of
incident and seizure of clothes of deceased and
accused No.1.
4. Finding of the human blood on clothes
i.e. Sari, Blauz and petticoat of the deceased
seized as per panchanama (Exh.18) and the
clothes i.e. shirt and pant of the accused as
per panchanama (Exh.39).
29. Now we shall proceed to consider whether the
prosecution has proved the above said four circumstances
and established chain of the said circumstances. As
regards the first circumstance that the deceased was
lastly seen in the company of accused No.1, to prove the
said circumstance the prosecution has relied upon the
evidence of PWs.-6,7 and 9. Allegedly Balaji Holambe
(PW-6) is having land adjacent to the land of accused No.
1 and on the day of incident i.e. 11.06.1998 in the
( 44 ) criapl202.00
morning he was in his field. He saw the deceased and
accused No.1 collecting the woods in their field and
thereafter at about 02.00 to 03.00 pm he had seen them
taking meal under a Moha tree standing in the field of
Vaijanath Andhale (PW-7) under which tree the dead body
of the deceased was found. This witness has only stated
that on the day of incident in the morning he was in his
field and on that day till 10.00 am he was plying pali
operation in his field. He has not supported the
prosecution case as he has denied portion marked-A in his
statement before police that on the day of incident he
saw accused No.1 and the deceased collecting wood in
their field and that he saw them taking meal under a Moha
tree at about 02.00 to 03.00 pm. The said portion marked-
A in his statement before police is of course proved by
PSI Chavan (PW-13) as per Exh.48. However, as PW-6 has
not supported the prosecution case the truth of the said
portion marked at Exh.48 is not proved.
30. Next witness on the last seen theory is Dattu
( 45 ) criapl202.00
Andhale (PW-9) who is brother of accused No.1. Allegedly
on the day of incident accused No.1 and the deceased
alongwith their meal had gone to the field for collecting
the woods, this witness had seen the same and also axe
found in the field was showed to him and identified the
same. He has not supported the prosecution case as he has
denied portion marked A,B and C in this respect in his
statement before police. These portions marked A,B and C
have been proved by PSI Chavan as per Exh. 45,46 and 47.
But as this witness has not supported the prosecution
case truth of portion marked Exh.45,46 and 47 has not
proved.
31. Third witness on the last seen theory is
Vaijanath Andhale (PW-7) who is uncle of accused No.1.
Allegedly on the day of incident he had been to Parli and
after he returned he came to know that the accused No.1
and the deceased had gone to their field for collecting
wood and the deceased Urmila did not return from the
field. This witness has also not supported the
( 46 ) criapl202.00
prosecution case as he has denied portions marked-A and B
in this respect in his statement before police. The said
portions marked-A and B have been proved by PSI Chavan
and marked at Exh. 49 and 50. However, as this witness
has not supported the prosecution case the truth of the
said portion marked at Exh. 49 and 50 has not been
proved.
32. For the reasons discussed above the evidence of
PWs. 6,7 and 9 and portion marked noted above in their
statements before police are of no help to the
prosecution to prove that the deceased was lastly seen in
the company of accused No.1. Therefore, we hold that the
prosecution has failed to prove circumstance No.1 in this
respect.
33. As regards the second circumstance, it is the
case of the prosecution that the injuries were noticed on
the person of accused No.1 and therefore, he is
responsible for causing injuries to the deceased and
( 47 ) criapl202.00
death of the deceased. To prove this circumstance the
prosecution has relied upon the evidence of Dr. Biyani
(PW-14) and injury certificate (Exh.64) of accused No.1
issued by the said Doctor. Dr. Biyani in his evidence
stated on 12.06.1998 at 11.00 am the injured who
disclosed his name as Vishnu Andhale came to rural
hospital, Gangakhed. After words the injured told his
name as Hanumant Andhale i.e. accused No.1. He examined
the said injured-accused No.1 and found following
injuries on his person.
1. Abrasion 7 x 6 cm over right side of
the chest in mid axillary line, red in color
tenderness over the part was present. I took x-
ray of the chest and found fracture of ribs No.
3,4 and 5 of right side. Injury was grievous.
2. Abrasion size 5 x 3 cm over supra
scapular region red in colour, nature of injury
was simple.
3. Abrasion 2 x 1 cm over left ankle
joint later side red colour.
( 48 ) criapl202.00
. Dr. Biyani further stated that above three
injuries are possible by hard and blunt object. Age of
the injuries was within 24 hours and accordingly he
issued injury certificate Exh. 64. He also stated that
accused No.1 before the court is the same person to whom
he had examined on that day and found the above injuries.
He stated that by jump in cannal such injuries are
possible. He stated that injury No.3 is possible if a
person assaulted another and while doing so there was
resistance. In the cross-examination he stated that
injury No.2 is not possible if he has fallen from front
side. He stated that he does not agree with the
suggestion that by single fall injury Nos. 1 and 2 are
not possible at a time. He stated that all these injuries
are possible by assault with hard and blunt object.
34. The injury certificate (Exh.64) shows that it is
a certificate of Vishnu Andhale and said patient after
words told his name as Hanumant Andhale. The certificate
( 49 ) criapl202.00
also shows three abrasions on the person of accused No.1
as deposed by Dr. Biyani. In the statement under section
313 of Code of Criminal Procedure accused No.1 has
admitted in answers to the questions Nos. 31 to 34 that
Dr. Biyani examined him and noticed above injuries and
issued certificate (Exh.64) and at that time only under
wear was on his person and then as there was chest
injury he was referred to SRTR Medical College Hospital,
Ambejogai for further treatment. It is the case of the
prosecution that on 30.06.1998 when the accused No.1 was
in the police custody he made statement in presence of
Panchas Vitthal and Madhukar (PW-3) and PSI Chavan
(PW-13) that he would show the spot where he had kept the
clothes on the bank of cannal and jumped in the cannal.
Then at his instance said spot was discovered and so also
his clothes Shirt and Pant having blood stains were
seized. Panch (PW-3) has not supported the prosecution
case. PW-13 Investigating Officer PSI Chavan has stated
in respect of preparing this panchanama and seizure of
clothes i.e. shirt and pant of accused No.1 at his
( 50 ) criapl202.00
instance as alleged by the prosecution. Thus it is seen
that after putting pant and shirt on the bank of the
cannal accused No.1 jumped in the cannal. In the
examination-in-chief itself Dr. Biyani has stated that
by jumping in the cannal such injuries i.e. injuries
noticed on the person of accused No.1 are possible. In
the absence of evidence that the deceased resisted the
accused at the time of alleged incident by hard and blunt
object, it cannot be said that the injuries on the person
of accused No.1 were caused to him in the alleged
incident. Therefore, we hold that the prosecution has
proved circumstance No.3 regarding finding of injuries on
the person of accused No.1. But said circumstance is of
no help to the prosecution to connect accused No.1 with
the death of the deceased.
35. The third circumstance relied upon by the
prosecution is seizure of axe from the spot of incident
and seizure of clothes of deceased and accused No.1 by
PSI Chavan in presence of panchas. PW-1 Panch has stated
( 51 ) criapl202.00
that on 12.06.1998 dead body of the deceased was near
Moha tree and one axe was near the dead body. It was
having blood stains. That axe was having handle. It was
seized as per panchanama (Exh.20) which bears his
signature and signature of another panch. PW-2 has not
supported the prosecution case. PW-13 PSI Chavan has
stated about seizure of axe from the spot of incident as
per panchanama (Exh.20) as well as seizure of clothes of
deceased as per Panchanama (Exh.18) and seizure of
clothes of accused as per panchanama (Exh.39). On the
basis of his evidence it can be said that prosecution has
proved circumstance No.4 regarding seizure of axe,
clothes of the deceased and clothes of the accused.
36. The forth and last circumstance is regarding
finding of human blood on the seized axe, the clothes
i.e. Sari, Blouse and petticoat of the deceased and
clothes i.e. full shirt and full pant of the accused as
per report (Exh. 43) of the Chemical Analyzer. This
report shows that blood detected on Exh.1,2,3,4 and 6
( 52 ) criapl202.00
i.e. Sari, Blouse, petticoat, axe was human as well as
it shows that no blood was detected on Exh. 7 and 8 i.e.
full shirt and full pant of the accused. There is no
report of Chemical Analyzer showing blood group of the
deceased or the accused. Therefore, mere finding of human
blood on the clothes of the deceased and seized axe is of
no help to the prosecution to prove that the accused used
the axe in assaulting the deceased. Another reason to
hold this is that the axe was seized from the spot of
incident which is open space and it is not the case of
the prosecution that it was seized at the instance of
the accused. Therefore, the report of Chemical Analyzer
(Exh.43) is of no help to the prosecution to connect the
accused with the death of the deceased.
37. For the reasons discussed above, we hold that
the prosecution has not proved the circumstances No.1
that the deceased was lastly seen in the company of
accused No.1 and it has proved circumstance Nos. 2,3 and
4. But for the reasons discussed above, mere finding of
( 53 ) criapl202.00
injuries on the person of accused No.1 and finding of
human blood on the seized axe and seized clothes of
accused No.1 and deceased as per the Chemical Analyzer's
report (Exh.43) is not sufficient to connect the accused
with the death of the deceased as the prosecution has not
established the chain in the circumstances relied upon by
it. So also, as observed earlier the prosecution has
failed to prove cruelty under Section 498-A of the IPC
against the accused which was alleged motive behind
committing murder of deceased. Therefore, we hold that
the accused are not responsible for death of the
deceased. As such, the prosecution has failed to prove
offence under Section 302 r/w Section 34 of the IPC
against the accused.
38. On re-appreciation of the entire evidence on
record, we find that the learned trial judge on carefully
considering the evidence adduced by the prosecution held
that the death of the deceased is homicidal and the
prosecution has failed to prove that the accused in
( 54 ) criapl202.00
furtherance of their common intention caused cruelty to
the deceased and committed her murder and failed to prove
the offences punishable under Sections 498-A and 302 r/w
Section 34 of the IPC. The said view taken by the trial
Court is reasonable and possible view. We find that there
is no reason to take other view than the view taken by
the trial Court. Therefore, appeal being devoid of
merits the same is liable to be dismissed. Accordingly we
dismiss the same. The bail bonds, if any of the accused,
shall stand cancelled.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
VishalK/criapl202.00
