State Of Maha vs Ganesh Sukhdeo Marathe & Ors
2017 Latest Caselaw 8313 Bom

                                                              Cri. Appeal 35/2003
                                          1


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

                               CRIMINAL APPEAL NO. 35 OF 2003

       The State of Maharashtra
       (through, P.I. Vaijapur P.S.)                ....Appellant.

                Versus

1.     Ganesh Sukhdeo Marathe,
       Age 28 years, Occu. Driver,
       R/o. Laxmi Colony, Vaijapur.

2.     Sanjay Sukhdeo Marathe,
       Age 35 years, Occu. and
       R/o. As above.

3.     Sow. Nirmalabai Sanjay Marathe,
       Age 26 years, Occu. Household,
       R/o. As above.

4.     Sow. Sonabai Sukhdeo Marathe,
       Age 65 years, Occu. and
       R/o. As above.

       [Appeal is admitted only against
       respondent Nos. 1 to 4 as per
       Court order dated 29.4.2004.]

5.     Vijay Bhagwat Harkal,
       Age 20 years, Occu. Education,
       R/o. Saigaon, Tq. Vaijapur.

6.     Damodar Ramchandra Narwade,
       Age 50 years, Occu. Service,
       R/o. Samarthnagar, Aurangabad.

7.     Sow. Kundabai w/o. Damodhar Narwade,
       Age 45 years, Occu. Household,
       R/o. As above.                       ....Respondents.


Mr. S.J. Salgare, APP for appellant/State.

Mr. V.R. Dhorde Advocate h/f. Mr. R.N. Dhorde, Advocate for respondent
Nos. 1 to 4.




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                                                                     Cri. Appeal 35/2003
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                                    CORAM   :     T.V. NALAWADE AND
                                                  ARUN M. DHAVALE, JJ.

                                    DATED       : November 1, 2017


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

1)              The appeal is filed against judgment and order of Sessions

Case No.124/2000, which was pending in the Court of 1st Ad-hoc

Additional Sessions Judge, Aurangabad. The Trial Court has acquitted

the respondents of the offences punishable under sections 302, 498-A

and 506 r/w. 34 of Indian Penal Code ('IPC' for short). The case was

filed against seven persons, but the appeal is admitted only as against

accused Nos. 1 to 4. Accused No. 1 Ganesh is the husband of

deceased, accused No. 2 is brother of husband of deceased, accused

No. 3 is the wife of accused No. 2 and accused No. 4 is the mother of

husband. Both the sides are heard.

2) Deceased Sharda was daughter of first informant Devrao

Shejul. Devrao is resident of Vairagad, Tahsil Gangapur. Accused

persons are residents of Vaijapur. Sharada was given in marriage to

accused No. 1 Ganesh on 20.4.1999. The incident in question took

place on the night between 9.1.2000 and 10.1.2000 in the matrimonial

house of deceased. On 10.1.2000 accused No. 1 gave report to police

and on the basis of his report, A.D. was registered. Sharda was found

in hanging condition and she had used her Sari as ligature material.

Cri. Appeal 35/2003

3) During inquiry of A.D., inquest panchanama was prepared

and dead body was referred for post mortem ('P.M.' for short)

examination. On 10.1.2000 itself Devrao gave report against all the

accused persons. In the report, he contended that there was demand of

Rs.50,000/- from the husband as he wanted to purchase a jeep for his

transport business. He contended that the deceased used to disclose

about the demand and also the illtreatment which she was suffering in

the house of her husband. She had disclosed that her husband, her

brother in law, wife of brother in law and also mother in law were

harassing her and they were even giving beating to her. She had

informed that they had given threat to finish her by hanging her or by

giving shock of electricity. Brother of the husband was working in police

department and he used to say that he can manage anything.

4) Due to illtreatment, about six months prior to the date of

incident, the deceased had left the matrimonial house and she was

residing in the house of her parents. The father could not make

arrangement of money and ultimately few days prior to the date of

incident, he sent the deceased to matrimonial house. He made

allegations that as the demand of money was not met with and as the

husband of deceased had illicit relations with the wife of his brother, the

deceased was finished by them.

Cri. Appeal 35/2003

5) The doctor, who conducted P.M. gave opinion that the death

had taken place due to hanging. The spot panchanama showed that the

incident had taken place in a room of house where the deceased and

the husband were living. During the course of investigation, the

statements of some relatives on parents side of deceased were

recorded. As some chits were produced by the father of deceased

before police during investigation, the chits were sent to hand writing

expert along with the hand writing of deceased which was available in

her school. The report was received that there was no significant

difference in the two hand writings. Chargesheet was filed for aforesaid

offences.

6) The charge was framed only for aforesaid offences. The

accused pleaded not guilty. Prosecution examined the first informant,

Medical Officer who conducted the P.M. examination, the hand writing

expert and the Investigating Officer. The Trial Court has considered all

the evidence and has given benefit of doubt to the husband.

7) The husband has not disputed that the deceased committed

suicide and that can be seen from the A.D. report given by him on

10.1.2000. The inquest panchanama is not seriously disputed and the

evidence of Dr. Khillare (PW 5), who conducted P.M. examination and

the P.M. report prepared by him which is at Exh. 51 lead to only one

Cri. Appeal 35/2003

inference that the deceased died due to asphyxia, secondary to

hanging. This Court has carefully gone through the description of

ligature mark given by doctor in P.M. report and in substantive

evidence. Other than ligature mark, no injury was found on the dead

body. In view of this evidence, it is not possible to hold that it is

homicide. Thus, the prosecution has failed to prove that Sharda died

homicidal death.

8) Chargesheet was filed against as many as seven persons

and in view of this circumstance, it was necessary for the prosecution

to prove that all the seven persons had the opportunity to commit the

offence viz. they were living in the same house where the incident took

place. There is no such evidence on record. The A.D. report and the

spot panchanama do not show that any other person except the

husband was living in that house with deceased. The house had three

rooms. The front room was being used as bed room. After the front

room, there was one kitchen and on one side of the kitchen, there was

room in which the incident had taken place. No neighbour is examined

to prove that any other accused was present in the house on 9th or

10th January 2000. Due to these circumstances, it was not possible for

prosecution to prove the offence of murder against the accused Nos. 2

to 7.

Cri. Appeal 35/2003

9) There was no separate charge for the offence punishable

under section 306 of IPC. But, there was charge for the offence

punishable under section 498-A of IPC. For proving that offence, the

prosecution is relying on the evidence of mother of deceased

Sakharabai (PW 1) and father Devrao (PW 7). Both of them have given

evidence that the deceased had disclosed to them that there was

demand of Rs. 50,000/- from accused as accused No. 1 wanted to

purchase a jeep for his transport business. Admittedly, accused No. 1

was earning the livelihood by plying taxi. In the cross examination,

Devrao (PW 7) has admitted that accused No. 1 was already having

jeep. Further, the evidence of PW 1 and PW 7 shows that financial

condition of accused persons was more sound than the financial

condition of the complainant.

10) Even if other circumstances are ignored and the so called

chits written by the deceased are read in evidence, it can be said that

in those chits, the deceased had not contended that there was demand

of Rs.50,000/- from accused and accused wanted to collect such

amount for purchasing jeep. In those chits, there is also no mention

that accused No. 1 had illicit relations with the wife of his brother. In

the evidence of Investigating Officer and also Devrao, it is brought on

the record that accused No. 2 was working in Police Department and he

was posted at other station where he was living with his family.

Cri. Appeal 35/2003

11) In the chits at Exhs. 69 and 70, the dispute and quarrels

which took place in between husband and wife and between relatives of

husband and newly wedded wife are mentioned and the incidents which

took place right from the date of marriage are also mentioned. From

the contents of chits, it cannot be said that there was harassment to

wife as defined in section 498-A of IPC. Further, these chits do not bear

the date and so, it is not possible to ascertain or infer as to when the

chits were written by the deceased. The P.M. report and the evidence of

father of deceased show that the deceased was pregnant of three

months. If the chits were written immediately prior to the date of

incident, the deceased would have definitely mentioned about her

pregnancy in the chits. As there is no such mention, it can be said that

if the chits were really written, they were written long back and there is

no proximity in the disclosures which can be found in the chits and the

death of deceased.

12) The evidence of prosecution which include the evidence of

Investigating Officer shows that Investigating Officer had collected

hand writing of deceased from her school. Nobody from school is

examined to prove that this hand writing was available in the school, it

was of deceased and it was supplied by the school to police. The

aforesaid chits were produced after about one month of the incident by

Cri. Appeal 35/2003

first informant before police. No explanation is given with regard to

delay caused in production of documents and there is further one more

circumstance like absence of evidence of Head Master or other teacher,

who could have given substantive evidence on hand writing of the

deceased which was allegedly collected from the school. Such lacuna

cannot be ignored in a case like present one.

13) Devrao (PW 7), father of deceased has exaggerated the

things. He had not mentioned in F.I.R. that he had lastly visited the

house of accused four days prior to the date of incident when he has

given such substantive evidence. The evidence on oral disclosures

made by the deceased is very vague in nature and for the reasons

already given, it does not look probable that the deceased had made

disclosures of the nature mentioned by this witness. On the other hand,

it is brought on the record in the cross examination of Devrao (PW 7)

that he is employed in one cooperative institution of which accused No.

6 is the Chairman. There was allegation of misappropriation against PW

7 and he had committed defalcation in the capacity of Secretary of the

said institution. A criminal case was also filed due to initiative taken by

accused No. 6 against PW 7. Accused No. 6 and his wife were not that

close relatives of the husband of the deceased and they were never

lived together with the husband of deceased. In spite of that, father of

the deceased had implicated these accused persons in the case. This

Cri. Appeal 35/2003

circumstance cannot be ignored as it shows possibility of false

implication of all accused due to trouble which the first informant was

facing due to action taken by accused No. 6.

14) The prosecution has not examined any neighbour of the

husband. On the other hand, the husband gave A.D. report

immediately, on the next morning when he saw the dead body. The

deceased was carrying of three months and this circumstance also

needs to be kept in mind. There can be many reasons for committing

suicide for Indian lady. Only because she committed suicide, inference

is not possible that there was illtreatment to her from the husband.

Due to these circumstances, this Court holds that it is not possible to

convict the respondents for any offence. The Trial Court has rightly

given benefit of doubt to the respondents and this Court sees no reason

to interfere in the decision given by the Trial Court. In the result, the

appeal stands dismissed.

           [ARUN M. DHAVALE, J.]                          [T.V. NALAWADE, J.]




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