Praveen S/O Vasantrao Charjan vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 7534 Bom

                                      1                  Appeal59-14.odt        



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR


                   CRIMINAL APPEAL NO.59 OF 2014
                                ...

Praveen s/o Vasantrao Charjan,
Aged about 48 years,
R/o Malipura, Rahatgaon,
Amravati, Tq. & Dist. Amravati.               ..             APPELLANT


                               .. Versus ..

The State of Maharashtra,
Through Police Station Officer,
Police Station Nandgaon Peth,
Amravati, Tq. & Dist. Amravati.               ..          RESPONDENT


Mr. Subodh Dharmadhikari, Senior Advocate with
Mr. C.S. Dharmadhikari, Advocate for Appellant.
Mr. S.M.Ukey, Additional Public Prosecutor for Respondent.
Mr. Adwait Manohar, Advocate for Complainant, assist to
Prosecution.
                               ....


CORAM        : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON  : September 13, 2017
PRONOUNCED ON : September 26, 2017.


JUDGMENT (per Manish Pitale, J. )

By this appeal, the appellant has challenged the

judgment and order dated 23.01.2014 passed by the Court of

Session, Amravati, in Sessions Case No. 63 of 2006, whereby

2 Appeal59-14.odt

the appellant was convicted under Sections 302 and 498-A of

the Indian Penal Code (IPC), sentenced to suffer imprisonment

for life and rigorous imprisonment for 1 year, with the

sentences running concurrently and he was further sentenced

with amounts of fine to be paid in respect of the said

conviction.

2. The appellant has been charged with the murder of

his wife Vaishali and as per the prosecution, the incident in

question happened in the early morning of 12.10.2005. A

report of accidental death was submitted to the Police Station

in respect of the said incident, as a result of which spot

panchanama and inquest panchanama were prepared between

9.30 and 10.45 in the morning in the presence of panchas, by

the Police Sub Inspector K.Y. Apar.

3. It was recorded in the spot panchamama that the

body of the deceased -wife of the appellant, was found in the

bathroom having dimensions 41/2' X 6' which was attached to

the bedroom on the first floor of the house. It was recorded

that the appellant, being the husband of the deceased, had

shown the place where the dead body was lying. It was

recorded that a box of Livocin poisonous medicine was found

3 Appeal59-14.odt

near the dead body, beneath the wash basin and that the head

of the deceased was near the commode. It was recorded in the

inquest panchanama that there were injury marks on the right

wrist of the deceased from where some bleeding was seen and

that while the eyes and mouth were closed, there was white

froth coming from the nose of the deceased.

4. The body of the deceased was sent for post mortem

on the same day i.e. 12.10.2005 and the Doctor (PW3)

conducted the post mortem between 3.40 and 4.50 p.m. It was

recorded in the post mortem that the brain and other organs of

the body were found to be congested and that the mode of

death was asphyxia, although no definite opinion could be

given as to the probable cause of death. The viscera was sent

for chemical analysis.

5. It is the prosecution case that the father of the

deceased Manikrao Kale (PW1) was not informed by the

appellant and his family about the incident and that the said

PW1 came to know about the same from one of his relatives.

When PW1 reached the house of the appellant and saw the

body of his daughter, he suspected foul play. After the post

mortem and cremation, PW1 submitted a written report

4 Appeal59-14.odt

(Exh.182) dated 12.10.2005 before the Police Station

Nandgaon Peth regarding the death of his daughter. He

claimed that the appellant and his family were responsible for

the death of his daughter and that the appellant was having

an extra marital affair with one Vandana (accused No.7) and

that his daughter had also been harassed by the appellant and

his family for which offences were required to be registered

against them. This report (Exh.182) was received at 1.30 a.m.

on 13.10.2005 as it was claimed by PW1 that the concerned

Police officials were reluctant to receive the same.

6. It has come on record that PW1 was informed by

accused No.9- PSI Apar that the aforesaid report at Exh.182

was not in the proper legal form and that a proper report was

required to be submitted regarding the incident. As a result,

another report (Exh.183) was prepared at Police Station

Nandgaon Peth regarding the incident. In this oral report, it

was recorded that the marriage of the appellant and his wife

had taken place about 16 years ago. The facts pertaining to

the involvement of the appellant and his family in the death of

Vaishali and the extra marital affair of the appellant with the

accused no.7 Vandana were recorded and first information

report (FIR) dated 13.10.2005 (Exh.184) was registered at

5 Appeal59-14.odt

10.30 p.m. in the Police Station at Nandgaon Peth, Amravati,

for offences under Sections 304-B, 498-A and 34 of the IPC.

The registration of FIR by accused No.8 Mufiz Deshmukh

(Police Official) under Section 304-B of the IPC was surprising,

because as per the report submitted by PW1 at 1.30 a.m. on

13.10.2005 (Exh.182) and even as per the oral report dated

13.10.2005 (Exh.183), it was clearly stated that a period of

about 16 years had elapsed from the date of the marriage of

the appellant and his wife. Since the death had not occurred

within the period of 7 years of marriage, as required under

Section 304-B of the IPC, the registration of the FIR for an

offence under the said provision was obviously wrong and

unsustainable.

7. In this situation, as PW1 suspected involvement of

the Police personnel and there being an attempt at a botched

up investigation, he submitted a complaint to the Government

that the investigation was required to be transferred to the

Criminal Investigation Department (CID). By an order dated

21.02.2006, the investigation was transferred to the CID and a

fresh investigation was ordered, which was entrusted to the

Deputy Superintendent of Police of the CID Amravati i.e. PW8

Raghunath Waghmode. This was necessitated because,

6 Appeal59-14.odt

despite the Assistant Commissioner of Police questioning the

Police Officials i.e. Mr. Apar and Mr. Deshmukh of the Police

Station Nandgaon Peth, as to why offence is registered under

Section 304-B and not 302 of the IPC, the said officials of the

Police Station Nandgaon Peth proceeded to file a charge sheet

for offence under Section 304-B of the IPC.

8. The new investigating officer i.e. PW8 filed an

application before the Court for return of the investigation

papers and he sought permission for further investigation,

which was granted by an order dated 03.06.2006. As the fresh

investigation proceeded, the Police Officials of Police Station

Nandgaon Peth who had conducted the earlier investigation

and submitted charge sheet, were arrayed as accused Nos. 8

(Mufiz Deshmukh) and 9 (K.Y.Apar) for having committed

offences under Sections 217 and 218 of the IPC. The

Government was approached for grant of sanction to prosecute

the said accused Nos. 8 and 9, which was granted. As part of

the fresh investigation, the investigating officer PW8 sent

queries to the Doctor who had conducted the post mortem, as

regards opinion on cause of death of the wife of the appellant.

In the responses sent by the Doctor, it came on record that the

death of Vaishali did not seem to be natural and that the

7 Appeal59-14.odt

asphyxia leading to her death could be because of a quilt being

pressed on her face leading to suffocation and death. On this

basis, the investigating officer PW8 proceeded with further

investigation and a seizure panchanama dated 03.07.2006

(Exh.275) was prepared, under which the appellant led the

investigating officer to his house where a quilt was seized. On

the basis of the further investigation conducted by PW8, an

application was submitted before the Court for deleting Section

304-B of the IPC from the charge sheet and insertion of

Sections 302, 201, 498-A, 120-B and 109 of the IPC in the

charge sheet against the accused. The appellant was accused

No. 1 and the other accused Nos. 2 to 6 were his family

members. Accused No.7 Vandana was the person with whom

the appellant was allegedly having an extra marital affair. It is

relevant to mention here that during the pendency of the trial,

the appellant and the said accused No.7 got married. The

accused Nos. 8 and 9 were the Police Officials who earlier

investigated the matter and against whom offences under

Sections 217 and 218 of the IPC were registered. On

20.09.2007, charge was framed against all the accused Nos. 1

to 9. The prosecution recorded the evidence of 10 witnesses in

support of its case.

8 Appeal59-14.odt

9. The facts that have emerged in the present case

show that the initial investigation into the death of the wife of

the appellant on 12.10.2005, was wholly unsatisfactory and

that vital evidence regarding the incident appeared to have

been either ignored or deliberately tampered with due to the

incompetence or connivance of accused Nos. 8 and 9. It was

only after the investigation was transferred to the CID and

further investigation was conducted that the investigation

seems to have proceeded in a more professional manner. Be

that as it may, the question as to whether the accused were

guilty of the charges levelled against them, has to be decided

on the basis of material and evidence on record.

10. The Sessions Court came to the conclusion that the

death of the wife of the appellant was homicidal and that the

offence under Sections 302 and 498-A of the IPC stood proved

only against the appellant. The family members of the

appellant i.e. accused Nos. 2,3,5 and 6 were acquitted, while

the prosecution against accused no.4 abated as she died

during the pendency of the trial. The accused No. 7 Vandana

was also acquitted, while the Police Officials i.e. accused Nos. 8

and 9 were convicted and sentenced for offences under

Sections 217 and 218 of the IPC.

9 Appeal59-14.odt

11. The Sessions Court found that the accused Nos. 8 and

9 had deliberately sought to misdirect investigation in order to

help the accused. The convicted accused were sentenced to

imprisonment of durations referred to above.

12. Mr. S.P. Dharmadhikari, learned senior counsel

appearing for the appellant-accused no.1, submitted that the

Sessions Court had committed a grave error in convicting and

sentencing the appellant and that the finding that the death

was homicidal in nature, was wholly unsustainable. He

vehemently submitted that the post mortem report and the

medical evidence on record, particularly evidence of the Doctor

i.e. PW3 was wholly insufficient to return the finding of

homicidal death in the present case. It was submitted that a

perusal of the deposition of PW3 demonstrated that no definite

conclusion regarding homicidal nature of death could be

reached in the present case. The learned senior counsel

appearing on behalf of the appellant made detailed references

to Modi's Medical Jurisprudence, pertaining to symptoms found

in cases of unnatural and homicidal death concerning asphyxia.

It was submitted that when there was insufficient evidence on

record to reach a positive finding regarding homicidal nature of

10 Appeal59-14.odt

death, the other factors taken into consideration by the

Sessions Court regarding presence of the appellant in the

house at the time of the incident etc. were wholly irrelevant. It

was submitted that conviction and sentencing of the appellant

on the basis of the evidence and material on record was

unsustainable and that the impugned judgment and order of

the Sessions Court deserved to be set aside.

13. On the other hand, Mr. S.M.Ukey, learned Additional

Public Prosecutor appearing for the respondent-State,

submitted that there was sufficient evidence on record to show

that the nature of death of the wife of the appellant was

homicidal. It was submitted that when the deceased was

shown to be in the custody and with the appellant at the time

of the incident, the onus was on him to explain as to how she

had died. It was further submitted that in the absence of any

explanation, the only conclusion that could be derived was that

the appellant was guilty.

14. Mr. Adwait Manohar, learned counsel appearing on

behalf of the complainant, to assist the prosecution, supported

the contentions raised on behalf of the respondent-State. He

vehemently submitted that when the entire investigation in the

11 Appeal59-14.odt

initial stages was improper and wholly unsatisfactory, it would

be unfair to place an extremely heavy and unjustified burden

on the prosecution to prove its case, particularly when it was a

case of circumstantial evidence wherein only the appellant was

with the deceased at the time of the incident in the four

corners of his bedroom. It was submitted that there were

sufficient circumstances brought on record to form a chain

which pointed towards only the guilt of the appellant.

15. Having heard the counsel for the parties and having

perused the evidence and material on record, central question

that arises for consideration in the present case is as to

whether the death of Vaishali in the early hours of the morning

on 12.10.2005 was homicidal in nature. In other words,

whether prosecution has been able to prove that it was a case

of homicidal death and whether there is sufficient evidence and

material on record to reach such a finding. It is only when a

finding of the death being homicidal in nature is reached that

the other aspects of this case become relevant, particularly

when there is no eyewitness to the incident and it is a case of

circumstantial evidence.

16. The question as to whether death is homicidal in

12 Appeal59-14.odt

nature, can be answered by circumstances brought on record

in respect of the occurrence of the incident and the medical

evidence on record. There is no doubt that the circumstances

in the present case do raise a strong suspicion regarding foul

play leading to the death of the wife of the appellant. But,

unless there is clinching evidence on record to show firstly,

that the death was unnatural and secondly, that it was

homicidal, the guilt of the appellant cannot be proved.

17. In order to reach a finding regarding homicidal death,

the medical evidence on record assumes great importance.

The post mortem report and the evidence of the Doctor i.e.

PW3 needs to be analysed on the basis of standard medical

jurisprudence to reach a positive finding regarding the nature

of death being homicidal.

18. The post mortem report (Exh.205) shows the

following features:-

(a) face congested.

(b) eyes closed.

(c) mouth closed.

(d) tongue inside mouth.

(e) watery fluid oozing from mouth and nose.

13 Appeal59-14.odt

(f) palms, soles and nails bluish.

(g) incised wounds on the right wrist with linear

abrasion and blood stains.

(h) brain congested.

(i) Larynx and trachea congested with whitish froth.

(j) Both lungs congested, froth present.

(k) All Chambers of the heart full of blood.

(l) Peritoneum and all organs congested.

19. It is also recorded in the post mortem report that the

mode of death is asphyxia. But, it is further recorded that no

definite opinion could be given as to the probable cause of

death. The viscera was sent for chemical analysis, as box of

poisonous medicine was found near the dead body. But, there

was no poison found in the viscera.

20. The evidence of the Doctor PW3 (Exh.204) shows that

the following statements have been made by the said witness:-

(a) No final opinion as to cause of death was formed

because the findings of external and internal examination

were not conclusive.

              (b)     Even after going through the report of viscera,



                                   14                     Appeal59-14.odt        

the witness was unable to form exact opinion as to cause of

death.

(c) The investigating officer continuously asked the

witness about the cause of death but till last he could not give

exact opinion regarding cause of death.

(d) Asphyxia was the mode of death and that

asphyxia could happen due to various causes.

(e) There cannot be natural death by asphyxia.

(f) As per Exh.210, i.e. opinion given by the witness

in response to query of the investigating officer, the death did

not seem to be a natural death.

(g) In asphyxia there could be unnatural death and

also natural death in case of some diseases.

21. An analysis of the aforesaid post mortem report

Exh.205 and the deposition of the Doctor i.e. PW3 (Exh.204)

would show that there were clear features on record showing

death by asphyxia. In this context, it would be relevant to

consider the medical jurisprudence regarding death due to

15 Appeal59-14.odt

asphyxia and symptoms that would show that such asphyxia

led to homicidal death of a person. Modi's Medical

Jurisprudence (Twenty Third Edition) in its chapter pertaining to

deaths from asphyxia states that in cases of death by

asphyxia bloody froth comes out of the mouth and nostrils and

that the right side of the heart is often full of dark fluid blood

and the left is empty. It is also stated that the brain is

generally congested and so are the abdominal organs. But, it

is further stated that in cases of homicidal death by asphyxia,

generally injuries on other parts of the body are seen and in

most cases on the mouth, nose , lips and other parts of the

face because homicidal suffocation leading to asphyxia is

forced upon the victim. Yet in another place, it is stated that

no local signs of violence are found if a soft cloth or pillow has

been used to block the mouth and nostrils.

22. In the instant case, a perusal of the aforesaid features

emerging from the post mortem and the deposition of the

Doctor would show that while the congestion of brain and

other organs of the body is found in the case of the deceased,

the froth oozing from the nose and mouth is not bloody, but it

is white. Furthermore, there are no injuries on the face or any

part thereof. There are also no injuries on any other part of the

16 Appeal59-14.odt

body except the incised wounds and linear abrasion on the

right wrist of the deceased. Even with regard to the said

injuries, the Doctor (PW3) has specifically stated in his letter

in response to a query by the investigating officer by letter

dated 31.10.2005 (Exh.208), that the said injuries cannot be

said to be injuries that were suffered during resistance offered

by the victim to any force used against her.

23. Thus, although there is material on record showing

that the death of the wife of the appellant was caused due to

asphyxia, there is absence of any clinching evidence to show

that such death was unnatural or homicidal in nature. Even if it

is taken that the death is unnatural, yet there is absence of

material on record that would clinchingly prove that the death

is homicidal.

24. The Court is required to reach a finding that there is

enough material on record to prove that the death is homicidal

in nature, even if it appears to be unnatural. An unnatural

death, apart from being homicidal in nature, could be

accidental or suicidal. But once the Court finds that the

material and evidence on record falls short of reaching a

finding that the death is homicidal in nature, it would not be

17 Appeal59-14.odt

safe to proceed further. It would not be appropriate to hold

against the accused, as submitted on behalf of the respondent,

that only because the material on record does not show that

the death is either accidental or suicidal in nature, it has to be

held to be homicidal because there is enough material to show

that it can be termed to be an unnatural death.

25. In the case of Subramanium .vs. State of Tamil

Nadu and another - (2009) 14 Supreme Court Cases

415, the Hon'ble Supreme Court has held that when death due

to asphyxia was not coupled with the marks of violence on the

body of the deceased, it would be difficult to convict the

accused-husband of the murder of his wife. In the said

judgment, the Hon'ble Supreme Court has quoted from and

relied upon the text of Modi's Medical Jurisprudence pertaining

to death by asphyxia and the question as to whether such

death could be said to be accidental, suicidal or homicidal. It

has been held by the Hon'ble Supreme Court that in the

absence of evidence of violence in the shape of external marks

surrounding the mouth and nostril or inside the mucosal

surface, it is not possible to come to a definite conclusion

about the nature of the death being homicidal. In the instant

case also, as stated above, there are no marks of injuries or

18 Appeal59-14.odt

violence on the face to indicate that the death due to asphyxia

could be homicidal in nature.

26. In the present case, the prosecution has come up

with the positive case that the deceased was suffocated by

means of a quilt which was recovered under the seizure

panchanama dated 03.07.2006 (Exh.275). But, such seizure

was made on 03.07.2006 while the incident took place on

12.10.2005. A quilt is an article that is usually found in

households and there is no material on record to connect the

seized quilt to the incident in question and the use of the same

by the appellant-accused to cause the death of his wife. The

medical evidence in the form of the deposition of Doctor (PW3)

only shows that causing death by pillow was not the opinion of

the said witness but it was only a response to the query of the

investigating officer as to whether death could be caused by

suffocation by means of pillow or quilt. Thus, the said positive

case of homicidal death sought to be made out by the

prosecution is clearly not proved.

27. The medical evidence on record is not conclusive and

there are doubts emerging from the record. A clear finding

regarding the nature of the death being homicidal cannot be

19 Appeal59-14.odt

given in the facts and circumstances of this case, in the

absence of clinching evidence. Therefore, the findings of the

trial Court that Doctor's evidence is clear and convincing that

the death of the wife of the appellant is homicidal death, is not

sustainable.

28. The counsel appearing for the State and the

Complainant have placed emphasis on judgments of the

Hon'ble Supreme Court in the case of Trimukh Maroti

Kirkan .vs. State of Maharashtra - (2006) 10 Supreme

Court Cases 681 and Babu .vs. State of Tamil Nadu -

(2013) 8 Supreme Court Cases 60, for the proposition that

when an offence like murder is committed in secrecy inside a

house, the initial burden to establish the case would

undoubtedly be upon the prosecution, but the nature and

amount of evidence to be led by it to establish the charge

cannot be of the same degree as is required in other cases of

circumstantial evidence and that the burden would be of a

comparatively lighter character. It is the contention raised on

behalf of the respondent-State and the complainant that when

the appellant as the husband of the deceased was expected in

the normal course of human conduct to be with his wife in the

early hours of the morning in the bedroom, it was for him to

20 Appeal59-14.odt

explain as to how the death of his wife had occurred. The

counsel placed reliance on Section 106 of the Evidence Act,

1872, which pertains to the burden of proving facts especially

within the knowledge of any person.

29. It was contended that the death of the wife of the

appellant had occurred in suspicious circumstances that were

brought on record by the prosecution and that the failure of the

defence to show that the death was either accidental or

suicidal, would lead to a reasonable inference that the death of

the deceased was homicidal in nature. It was contended that if

the death of the deceased wife of the appellant had been either

accidental or suicidal, there would have been injuries on her

body due to fall on the floor, considering the fact that her body

was found lying in a bathroom with dimensions of 41/2' X 6',

which was cramped due to wash basin and commode in the

bathroom. The contention was that when no such injuries were

found on the body of the deceased, it was for the appellant to

explain how the death had occurred and that in such a

situation it could be reasonably inferred that the case was of

homicidal death.

30.           The       aforesaid    judgments    relied       upon          by      the





                                21                  Appeal59-14.odt        

respondent-State and the complainant i.e. Trimukh Maroti

Kirkan .vs. State of Maharashtra (supra) and Babu .vs.

State of T.N. (supra) are cases where there were multiple

external physical injuries found on the bodies of the deceased.

It was in such a situation that the Hon'ble Supreme Court held

that the failure on the part of the defence to explain the

manner in which the injuries were suffered by the deceased led

to the reasonable inference that the death was homicidal in

nature. But, in the present case, there are no external injuries

indicating that the suffocation and asphyxia suffered by the

deceased was due to any external force applied. There is no

evidence to show either smothering or throttling. There are no

ligature marks or any external marks on the body showing

pressure being applied to suffocate the victim.

31. In this backdrop it would be unsafe to hold that a

reasonable inference could be drawn about the death of the

wife of the appellant being homicidal in nature. The contention

raised on behalf of the respondent-State and the complainant

that it was for the appellant to explain the circumstances

leading to the death of his wife cannot be stretched to an

extent that a finding of homicidal death is given even when

there is no medical evidence to support such a finding. In fact,

22 Appeal59-14.odt

in the case of Subramanium .vs. State of T.N. (supra), a

case of death by asphyxia, the Hon'ble Supreme Court has

held that even if the husband has to explain the circumstances

in which his wife has died within the four walls of a house, we

cannot lose sight of the fact that although the same may be

considered to be a strong circumstance, but that alone in the

absence of evidence of violence on the deceased cannot be

held to be conclusive.

32. It has been also held by the Hon'ble Supreme Court in

the case of Madho Singh .vs. State of Rajasthan - (2010)

15 Supreme Court Cases 588 that in the absence of proof

of homicidal death, the accused cannot be convicted merely

on the theory of last seen and that conviction cannot be

maintained merely on suspicion, however, strong it may be. In

the case of Sujit Biswas .vs. State of Assam - (2013) 12

Supreme Court Cases 406, the Hon'ble Supreme Court has

held that suspicion, however grave it may be, cannot take the

place of proof and that there is a large difference between

something that "may be" proved and something that "will be

proved".

33.           In    the        present     case,   it    is    evident         that         the





                                23                  Appeal59-14.odt        

circumstance heavily relied upon by the prosecution that the

appellant being the husband of the deceased was supposed to

be with her in the bedroom in the early hours, could be used

against the appellant only if there was other evidence to link

the appellant with the death of his wife. As discussed above,

there is absence of clinching evidence to reach a finding

regarding homicidal death of the wife of the appellant and the

claim of the prosecution that the appellant might have used

quilt to suffocate his wife, is in the realm of speculation and

conjecture.

34. In this regard, the judgment of the Hon'ble Supreme

Court in the case of Dhanajaya Reddy .vs. State of

Karnataka - (2001) 4 Supreme Court Cases 9, is relevant.

In similar circumstances, wife of the deceased was charged

with murder of her husband, who was found dead in their

bedroom. But, she was acquitted and it was held by the

Hon'ble Supreme Court that the circumstance of the wife being

last seen with her deceased husband or that she was supposed

to be with him in the house, could not lead to the irresistible

inference of her guilt, as there was lack of other circumstantial

evidence to link her with the murder of her husband. Thus, in

the instant case also it cannot be inferred that the appellant is

24 Appeal59-14.odt

guilty of the murder of his wife, particularly in the absence of

clear and cogent evidence to give a finding that the death was

homicidal in nature.

35. As regards the offence under Section 498-A of the

IPC, the Sessions Court has found only the appellant guilty and

other accused have been acquitted. The Sessions Court has

convicted the appellant under Section 498-A of the IPC,

primarily on the basis that he was having an extra marital and

illicit relationship with accused No.7 Vandana and that this

caused harassment and cruelty to the deceased. In this

regard the Sessions Court relied upon the evidence of PW1

Manikrao (father of the deceased) and PW2 Manish (husband of

the sister of the deceased). Both these witnesses have stated

about the alleged extra marital and illicit relationship between

the appellant and accused No.7 and they have claimed that

this caused harassment to the deceased. But, their evidence

shows that the details about such harassment and illicit

relationship were not stated in their statements before the

Police or in their evidence before the Court. In fact, no report

was ever lodged regarding such harassment allegedly suffered

by the deceased. The allegation made by PW1 regarding

demand of money was disbelieved by the Sessions Court. It

25 Appeal59-14.odt

was also stated by PW1 in his deposition that after the birth of

child Adhiraj, the appellant was treating the deceased properly.

36. There does not appear to be any detailed evidence in

respect of the allegation of harassment meted out by the

appellant to the deceased. The said witnesses have

emphasized on the extra marital and illicit relationship

between the appellant and accused no.7 being the main cause

of harassment to the deceased. But, the Sessions Court in its

judgment has given finding that the prosecution failed to show

any material regarding exchange of SMS between the appellant

and accused no.7 and it only records that the call details show

that there were exchange of calls on mobile between the

appellant and accused No.7. Even before this Court, the

counsel appearing for the respondent-State and the

complainant were unable to show anything against the

appellant on the basis of mobile call records. Thus, there does

not appear to be sufficient evidence and material on record to

prove that the appellant subjected the deceased to cruelty that

was likely to cause any danger to her life or that she was

harassed by the appellant in relation to any unlawful demand.

Therefore, the conviction of the appellant under Section 498-A

of the IPC is also not sustainable.

26 Appeal59-14.odt

37. In view of the above, upon considering the entire

evidence and material on record, particularly the medical

evidence on record, we find that it is not possible to sustain the

conclusion of the Sessions Court regarding homicidal nature of

death of the wife of the appellant. Consequently, the other

circumstances relied upon by the prosecution to prove the

charge of offence under Section 302 of the IPC do not lead to

any conclusion against the appellant. Therefore, the impugned

judgment and order of the Sessions Court deserves to be set

aside as against the appellant.

38. Accordingly, we allow this appeal and set aside the

judgment and order of the Sessions Court dated 23.01.2014

and we acquit the appellant of the charges framed against him.

The appellant be released from custody forthwith if not

required in any other case. The amount of fine, if any paid, be

refunded to the appellant.

      (Manish Pitale, J. )               (R.K. Deshpande, J.)
                                 ...
halwai/p.s.