Bombay High Court
Dhondiba Devrao Wadwale And Anr vs The State Of Maharashtr on 6 January, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 392 OF 2014
Madhav Dhondiba Wadwale
Age 25 years, Occ. Agriculture
R/o. Kapsi (Bk), Tq. Loha
District Nanded ...Appellant
Now in jail (Ori. Accused No.1)
versus
The State of Maharashtra
Through the Secretary Home Department
Mantralaya Mumbai
and
The Police Station Officer,
Osmannagar,
Tal. Kandhar, Dist. Nanded ...Respondent
.....
Mr. K. C. Sant, Advocate for the appellant
Mr. R. D. Sanap, A.P.P. for respondent-State
Mr. A.M. Gaikwad, assist to A.P.P.
.....
AND
CRIMINAL APPEAL NO. 294 OF 2014
1. Dhondiba Devrao Wadwale
Age 55 years, Occ. Agriculture
2. Chandrakalabai w/o Dhondiba Wadwale
Age 50 years, Occ. Household,
Both R/o. Kapsi (Bk), Tq. Loha
District Nanded ...Appellants
(Ori. Accused No.2 & 3)
versus
The State of Maharashtra
Through the Secretary Home Department
Mantralaya Mumbai
and
The Police Station Officer,
Osmannagar,
Tal. Kandhar, Dist. Nanded ...Respondent
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.....
Mr. Mukul Kulkarni h/f Mr. R.R. Sancheti, Advocate for the appellants
Mr. R. D. Sanap, A.P.P. for respondent-State
.....
CORAM : V. K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
Date of Reserving
the Judgment : 29.11.2021
Date of pronouncing
the Judgment : 06.01.2022
JUDGMENT (PER V.K. JADHAV, J.) :-
1. Being aggrieved and dissatisfied with the judgment and order
of conviction passed by the Additional Sessions Judge, Kandhar
dated 23.5.2014 in Sessions Case No.23 of 2004, the appellant -
original-accused No.1 Madhav Dhondiba Wadwale preferred criminal
appeal No. 392 of 2014 and appellants-accused No.2 and 3 i.e.
Dhondiba Devrao Wadwale and Chandrakalabai Dhondiba Wadwale,
respectively, preferred criminal appeal No. 294 of 2014.
2. Brief facts giving rise to the prosecution case are as follows:-
a) P.W.2 Savita (victim) is the wife of appellant-accused No.1
Madhav whereas the appellant accused Nos.2 and 3 i.e. Dhondiba
and Chandrakalabai, respectively, are the parents of appellant
accused No.1 Madhav. The marriage of P.W.2 Savita (victim) was
performed with appellant-accused No.1 Madhav on 26.3.2003. At
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the time of marriage, though dowry amount of Rs.1,21,000/- was
fixed, however, an amount of Rs.1,00,000/- was paid in cash
alongwith motor cycle and ornaments of two and half Tola gold were
also given and balance amount of dowry for Rs.21,000/- remained
unpaid. After the marriage, P.W.2 Savita (victim) had gone to her
matrimonial house at Kapsi (Bk), Tq. Loha, District Nanded. She
was treated well for a period of three months after the marriage.
Thereafter, she was subjected to ill-treatment on account of
remaining unpaid dowry amount for Rs.21,000/-. P.W.2 Savita
(victim) was also subjected to insulting treatment for the reason that
she is having black complexion. P.W.2 Savita (victim) has thereafter
became pregnant. However, there are various instances quoted by
P.W.2 Savita (victim) which indicate that she was also subjected to
ill-treatment for aborting foetus. There was an attempt to kill her in
her matrimonial home but she has fortunately saved herself.
b) On 20.01.2004 at noon when P.W.2 Savita (victim) was
cleaning the paddy rice grains in kitchen room, at that time appellant
accused No.1 Madhav entered in the room and by closing the door of
kitchen room from inside, had given two kicks on the abdomen of
P.W.2 Savita (victim). The parents of appellant accused No.1
Madhav i.e. accused Nos. 2 and 3, who are appellants in criminal
appeal No. 294 of 2014 also entered in the said kitchen room. The
appellant accused No.2 Dhondiba had given a nylon rope to
appellant accused No.1 Madhav and accused Madhav wrapped the
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said nylon rope around the neck of P.W.2 Savita (victim) and started
twisting it. The appellant accused No.2 Dhondiba caught hold of the
hands of P.W.2 Savita (victim) and appellant accused No.3
Chandrakalabai caught hold of her legs. The appellants accused
persons have attempted to strangulate P.W.2 Savita (victim). P.W.2
Savita (victim) had made efforts to loose the rope wrapped around
her neck. She was succeeded in removing the rope from her neck.
Thereafter, the appellants accused had taken her in another room.
The appellant accused No.1 Madhav given shock on her both the
buttocks by soldering machine. Though P.W.2 Savita (victim) had
raised shouts, but at that time the volume of TV was deliberately
increased by the accused persons. Further the appellant Madhav
had given electric shock on the thigh of P.W.2 Savita (victim) and she
became unconscious.
c) P.W.2 Savita (victim) was taken to Apex hospital at Nanded
on 20.1.2004 at 4.25 p.m. The concerned treating doctor has given
M.L.C. intimation to Vajirabad police station, Nanded. P.W.2 Savita
(victim) was unconscious when she was admitted in the said hospital.
Her condition was critical. There was bleeding from her nose and
ears. Blood was clotted in her eyes. Froth was coming from her
mouth. The treating doctor has noted one lenier contused wound on
her throat which was extending from right to left ear. The treating
doctor has noted another injury on her both hips and the third injury
was contused lacerted wound on left thigh. In the cross examination,
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the treating doctor has admitted that there was swelling on lungs.
P.W.2 Savita (victim) was all the while unconscious when admitted in
the Apex Hospital, Nanded. P.W.2 Savita (victim) thereafter was
referred to Apollo Hospital at Hyderabad and on 26.1.2004 P.W.2
she was admitted in the said Hospital at Hyderabad. She regained
her consciousness after 4/5 days of her admission in the said
hospital. On her examination, the treating doctor has noted that baby
in her womb was dead. In the said Apollo Hospital at Hyderabad,
external injuries on the person of P.W.2 Savita (victim) were also
noted. P.W.2 Savita (victim) was discharged from the said hospital
on 16.2.2004.
d) Meantime, P.W.1 Devidas Jadhav, father of P.W.2 Savita
(victim) had lodged complaint Exh.42 against the appellants accused
persons. On the basis of the said complaint, crime No. 14 of 2004
came to be registered against the appellants accused for the
offences punishable under Section 498-A, 307 r.w. 34 of I.P.C.
e) On the basis of the said complaint Exh.42, P.W. 8 A.S.I.
Sudhakar Shelke registered crime No. 14 of 2004 and investigation
was entrusted to P.W.10 P.I. Bhagwat Jaybhaye. Meanwhile, P.W.9
P.S.I. Ganesh Choure had repeatedly tried to record the statement of
P.W.2 Savita (victim) in the hospital at Nanded from 21.1.2004 to
23.1.2004, however, on every such occasion, the treating doctor had
given written opinion that P.W.2 Savita (victim) was not able to give
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her statement. P.W. 10 P.I. Bhagwat Jaybhaye has carried out
investigation in connection with the said crime. On 26.1.2004 he had
visited the spot and carried out spot panchanama Exh.84 in presence
of panchas. Though he had tried to find out accused persons but
they could not be traced out. He has recorded the supplementary
statement of P.W. 1 complainant Devidas Jadhav and further
recorded the statement of some other witnesses. On 15.2.2004 he
was transferred and therefore, further investigation was entrusted to
P.W.12 A.P.I. Milind Khodve. P.W. 12 A.P.I. Milind Kondve has
recorded the statement of P.W.2 Savita (victim) when they received
information that the victim had reached to Kedar Wadgaon and also
collected injury certificate from the Apex Hospital, Nanded. During
that period search of the accused was going on and accordingly the
accused persons were arrested by drawing arrest pancahnama
Exh.99 and 100 respectively. On 20.3.2004 the appellant accused
No.1 has disclosed certain information and on the basis of which
memorandum panchanama was prepared. The appellant accused
has pointed out the weapon used in the commission of offence
concealed in his field. Those weapons are soldering machine,
electric wire and one nylon rope. Memorandum panchanama was
drawn which is at Exh.101 and the said articles came to be seized at
the instance of accused No.1 by drawing recovery panchanama
Exh.102. Article 1 to 3 are those articles produced before the Court
during trial. He has further recorded the supplementary statement.
On completion of investigation, on 23.4.2004 P.W. 12 A.P.I. Milind
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Khodve has submitted charge sheet against the appellants-accused.
f) The learned Additional Sessions Judge, Kandhar has framed
charge at Exh.4 under Section 498-A, 307, 316 r.w. 34 of I.P.C.
against the appellants. The contents of the charge were read over
and explained to the appellants-accused persons and the appellants-
accused pleaded not guilty to the said charge and claimed to be
tried. The defence of the accused is of total denial and false
implication. As per their defence, appellant accused No.1 Madhav
was suffering from diabetes and therefore, P.W.2 Savita (victim) was
under impression that the baby in her womb may also be the patient
of diabetic. The P.W.2 Savita (victim) therefore attempted to commit
suicide and in that attempt she fallen down and sustained injuries
and the baby in her womb was died. As per their defence, at the time
of alleged incident, they were not present at their house and they
have been falsely implicated in the case.
g) The prosecution has examined in all 12 witnesses to
substantiate the charges levelled against the appellants-accused.
After completion of prosecution evidence, statements of the
appellants-accused came to be recorded under Section 313 of
Cr.P.C. The appellants accused also examined one defence
witnesses viz. Gangadhar Uppalwad.
h) Learned Additional Sessions Judge, Kandhar by judgment and
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order dated 23.5.2014 has convicted the appellants accused for the
offence punishable under Sections 498-A r.w. 34, 307 r.w. 34, 316
r.w. 34 of I.P.C. The learned Additional Sessions Judge, Kandhar
has convicted all the appellants accused in the following manner.
The operative part of judgment and order of conviction reads as
under:-
ORDER
"01. Accused Nos.
01- Madhav Dhondiba Wadwale,
02- Dhondiba Devrao Wadwale,
03- Chandrakalabai Dhondiba Wadwale,
are hereby convicted for commission of offence
punishable u/sec, 498-A r.w. sec. 34 of IPC and they are
sentenced to suffer rigorous imprisonment for three years
each and to pay fine of Rs.10,000/- each, in default to
suffer further rigorous imprisonment for three months
each.
02. Accused Nos. 1 to 3 are also convicted for
commission of offence punishable u/sec. 307 r.w. sec. 34
of IPC and they are sentenced to suffer imprisonment for
life each and to pay fine of Rs.25,000/- each, in default to
suffer further rigorous imprisonment for six month each.
03. Accused Nos. 1 to 3 are also convicted for the
commission of offence punishable u/sec. 316 r.w. sec. 34
of IPC and they are sentenced to suffer rigorous
imprisonment for ten years each and to pay fine of
Rs.25,000/- each, in default to suffer further rigorous
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imprisonment for six month each.
04. The sentences awarded in above said sections
shall run concurrently.
05. Accused are entitled for set off according to
provisions of Section 428 of Cr.P.C.
06. On realizing of the fine amount Rs.1,50,000/- be
paid to victim as the compensation u/sec. 357(1) Cr.P.C.
07. Seized articles being worthless be destroyed after
the period of appeal is over.
08. Declared and pronounced in open Court."
3. Mr. Sant, learned counsel for the appellant in criminal appeal
No. 392 of 2014 submits that the prosecution has mainly relied upon
the evidence of P.W.1 father of P.W.2 Savita (victim), P.W.2 Savita
(victim), P.W.4 Dr. Shubhangi Patange, from Apex Hospital, Nanded
where the victim was initially admitted and P.W.11 Dr. Jaganmani
Vendantam from Apollo Hospital, Hyderabad. Learned counsel Mr.
Sant submits that as per the prosecution story, the appellants
accused persons have tried to electrocute the victim with an intention
to commit her murder. The appellants accused have used soldering
machine for causing injuries on the buttocks of victim and further they
tried to commit murder of victim by strangulation with nylon rope of
fertilizer gunny bag. The prosecution case rests upon three articles
i.e. article No.1 electric wire, article No.2 soldering machine and
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article No.3 Nylon rope prepared from fertilizer gunny bag.
4. Mr. Sant, learned counsel for the appellant-accused Madhav
submits that the evidence of P.W.1 Devidas, P.W.2 Savita (victim) is
full of omissions, contradictions and improvements. As per the
exerts evidence i.e. P.W.4 Dr. Shubhangi Patange and P.W.11 Dr.
Jaganmani Vendantam that no burn injuries were found on the
person of P.W.2 Savita (victim). Further, the allegations about giving
shock by electric wire are concerned, except oral evidence of P.W.2
Savita (victim), there is no corroboration. As per the medical
evidence, there are no injuries on the person of P.W.2 Savita (victim)
caused by electric current. Learned counsel for the appellant Madhav
further submits that P.W.4 Dr. Shubhangi Patange has deposed that
when P.W.2 Savita (victim) was admitted in Apex hospital at Nanded,
she did not notice any ligature marks, however, she noticed ligature
marks on second day. Whereas P.W.1 Devidas (father of P.W.2
Savita) deposed that he noticed such ligature marks on the day of
admission of P.W.2 Savita (victim) in the hospital. Learned counsel
submits that the prosecution has not even attempted to send all
these articles for chemical analysis to prove that those were used in
commission of crime. The prosecution has miserably failed to
establish that the ligature marks were present and as such, the case
falls under Section 307 of I.P.C. Though there are allegations by
P.W.2 Savita (victim) that the appellant accused Madhav has given
kicks on her abdomen, however, there is no corroboration for the
same. It is the prosecution story that appellant accused No.2
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Dhondiba and accused No.3 Chandrakalabai and one sister of the
appellant Madhav (who is no more) entered into kitchen from another
door is falsified by the contents of spot panchanama. Learned
counsel submits that evidence of P.W.1 Devidas is full of
improvement and omissions. Learned counsel submits that the
allegations that P.W.2 Savita (victim) was having black complexion
and therefore, accused did not like her and further she was all the
while ill-treated for non fulfillment of unpaid dowry amount, does not
inspire confidence.
5. Mr. Sant, learned counsel for the appellant accused Madhav
submits that P.W.4 Dr. Shubhangi Patange has deposed that the
injury and ligature marks can be caused by throttling whereas the
nature of article allegedly used suggests the case of strangulation.
Learned counsel submits that both the doctors have not deposed
about direction of ligature marks in injury No.1. Even P.W.4 Dr.
Shubhangi Patange has admitted in her cross examination that she
did not feel it necessary to inform the police as she suspected the
case to be of shooting of B.P. during the pregnancy and she noticed
the ligature marks on 21.01.2004. P.W.11 Dr. Jaganmani
Vendantam has deposed that the injury can be caused by throttling
and further admitted that he did not find any impression of rope
around the neck of P.W.2 Savita (victim). He has further deposed
that injury caused to ankle of mandible is not possible by Article
No.3. He has also accepted that in case of strangulation by article
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No.3 there should have been fracture of hyoid bone.
6. Mr. Sant, Learned counsel for the appellant accused Madhav
submits that the prosecution has utterly failed to establish the case of
strangulation and also throttling and further both the cases cannot go
together. The learned Additional Sessions Judge has expressed that
it was a case of throttling. There are no ligature marks around the
neck of P.W.2 Savita (victim) caused by rope. The use of rope is
also not proved by sending the same to chemical analysis. Further,
the length and width of ligature marks are not on record. Learned
counsel for the appellant Madhav submits that evidence of P.W.2
Savita (victim) is totally by way of improvement and full of omissions.
The appellant accused Madhav allegedly bolted the door of kitchen
from inside and thereafter the other accused persons came in the
kitchen cannot be believed as there is only one door to the kitchen.
Learned counsel submits that it is not possible to commit murder by
using soldering machine. Further the injuries caused were not on the
vital part of the body of P.W.2 Savita (victim). Learned counsel
submits that the said soldering machine, by any stretch of
imagination, cannot be said to be the weapon used for committing
murder of P.W.2 Savita (victim). Learned counsel submits that case
does not fall under Section 307 of IPC. In the alternate, at the most, it
can be a case under Section 323 or 325 of IPC. Learned counsel
submits that if at all there was an intention to kill P.W.2 Savita (victim),
the appellants accused would not carry P.W.2 Savita (victim) to the
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hospital. Learned counsel submits that so far as the charge under
Section 316 of I.P.C. is concerned, the prosecution has utterly failed
to prove the ingredients of Section 316 of I.P.C.
7. Mr. Sant, learned counsel for the appellant-accused Madhav
submits that the prosecution has failed to examine the material
witness i.e. Dr. Shirsath, who has examined P.W.2 Savita (victim) for
the first time in his dispensary, which is just opposite to the house of
the appellant. The said doctor Shirsath would have been the best
witness. The prosecution has further failed to examine witness
Gangadhar Uppalwad. Though said Gangadhar Uppalwad was cited
as prosecution witness, the prosecution has examined him as
defence witness. D.W. Gangadhar Uppalwad has deposed that the
appellant accused persons came from the field and thereafter the
appellants accused immediately took P.W.2 Savita (victim) to the
hospital in Rickshaw. The appellants accused gave information about
the victim to her parents and they were also present in the hospital.
There was no intention to commit murder of P.W.2 Savita (victim).
8. Mr. Sant, learned counsel for the appellant accused Madhav
submits that so far as the sentence part is concerned, the case of the
prosecution is far stretched. There is no sufficient evidence to prove
the guilt of appellant-accused. The prosecution case clearly based
on the evidence of P.W.1 Devidas and P.W.2 Savita (victim). The
appellants accused have clearly made out a case that victim herself
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had tried to commit suicide. Thus, harsh punishment has been
imposed. The appellants accused Madhav has already undergone
the sentence of more than six and half years. Further the victim is
sufficiently compensated by directing the accused persons to make
payment of Rs.1,50,000/- to her and on this count also the
punishment needs to be reduced. Learned counsel thus submits
that criminal appeal No. 392 of 2014 deserves to be allowed and the
appellant Madhav may be acquitted by giving benefit of doubt. In the
alternate, the sentence may be reduced to the extent that appellant
accused No.1 Madhav as already undergone.
Learned counsel for the appellant accused Madhav, in order to
substantiate his contentions, placed reliance on the following cases:-
i) Sarju Prasad vs. State of Bihar, reported in AIR 1965 (1)
Cri.L.J. 766;
ii) Hari Kishan & State of Harayana vs. Sukhbir Singh and others,
reported in AIR 1988 SC 2127;
iii) Hari Mohan Mandal vs. State of Jharkhand, reported in AIR
2004 SC 3687;
iv) Jabbar and others vs. State, reported in 1965 SCC Online All
337.
9. Mr. Kulkarni h/f Mr. Sancheti, learned counsel for the
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appellants (original accused 2 and 3) in criminal appeal No. 294 of
2014 submits that as per the prosecution story P.W.2 Savita (victim)
was in the kitchen where she was assaulted. Learned counsel
submits that entire incident is in four stages, each with different
intention by different persons and at different locations within the
house. Those four stages are as follows:-
(I) So far as the first part of assault is concerned, the accused
No.1 husband i.e. the appellant in criminal appeal No. 392 of
2014 has entered in the kitchen and kicked P.W.2 Savita
(victim) twice on her abdomen. These appellants have no role
to play so far as this part of assault is concerned.
(II) So far as the second part of assault is concerned, P.W.2
Savita (victim) has deposed that the appellants herein
alongwith her sister-in-law, entered in the kitchen from another
door and the appellant accused Dhondiba (father-in-law) had
handed over one rope prepared from fertilizer gunny bag to
husband accused No.1 Madhav and Madhav put the rope
around her neck and tried to twist it. Learned counsel submits
that the prosecution has examined two doctors, who have
treated P.W.2 Savita (victim). P.W.4 Dr. Shubhangi Patange
has deposed that there was a linear contused wound on her
throat, which was extending from right to left ear. The size of
said injury was 1 ½ cm to 4.5 cm. According to P.W.4 Dr.
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Shubhangi, they have radiologically examined P.W.2 Savita
(victim) in the hospital. In the said examination, it was found
that there was swelling on lungs. The MRI of P.W.2 Savita
(victim) was also done. It reveals cerebral ischemic leision.
P.W.4 Dr. Shubhangi has stated in her cross examination that
she did not agree with the proposition that in case of throttling
the ligature marks will be around the neck. P.W.4 Dr.
Shubhangi volunteers that in such case the patient would die
certainly. P.W.4 Dr. Shubhangi has admitted that she has not
described the direction of injury No.1 Exh.82. P.W.4 Dr.
Shubhangi has further admitted that initially she was
suspecting about shooting of B.P. during pregnancy and
therefore, intimation was not given to the police. However,
when ligature marks were found, intimation was given to the
police. She has accordingly noted ligature marks on the
person of P.W.2 Savita (victim) on 21.01.2004.
Learned counsel for the appellants submits that P.W.11 Dr.
Vendantam has deposed that there was one red colour mark
on her neck below the angle of mandible. In his cross
examination, P.W.11 Dr. Vendantam has deposed that on
perusal of Exh.82, it reveals that it may be a case of throttling.
He has not found any impression of rope around the neck of
P.W.2 Savita (victim). P.W.11 Dr. Vendantam has further
agree with the proposition that in case of throttling marks
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around the neck of P.W.2 Savita (victim) are equal to the width
of ligature used. P.W.11 Dr. Vendantam has further admitted
in clear words that injury of 2 cm on angle of mandible is not
possible by Article 3 as he has not mentioned the width of
ligature marks on the person of P.W.2 Savita (victim). He has
accepted that if there is manual strangulation with Article 3
there is fracture of hyoid bone.
Mr. Kulkarni, learned counsel for the appellants submits that
the prosecution has failed to establish as to whether it was a
case of strangulation or throttling. Learned Additional
Sessions Judge has convicted the appellants by holding that it
is a case of throttling. There are no ligature marks around the
neck of P.W.2 Savita (victim). The direction of ligature marks is
not on record. Further, recovery of rope is not legally proved.
Length and width of the alleged rope is not on record. It is
thus not clear as to whether it is case of strangulation or
throttling. Thus, the conviction of the present appellants aiding
the offences is illegal and arbitrary. Learned counsel submits
that evidence of P.W.2 Savita (victim) is full with contradiction
and the medical evidence does not corroborate her version.
Learned counsel submits that it would not safe to rely upon
uncorroborated testimony of P.W.2 Savita (victim). Thus, only
on the basis of her evidence the conviction cannot be
maintained. Learned counsel submits that when there is only
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one door to the kitchen, it is not clear as to how the appellants
entered in the kitchen when the door of kitchen room was
closed from inside and these appellants were sitting in TV
room.
(III) Learned counsel for the appellants submits that so far as third
part of assault i.e. shock with soldering machine on buttocks
is concerned, as per the prosecution story the husband
accused gave shock while the appellants assisted him in the
said assault. Learned counsel submits that part of body where
the injury was inflicted and the nature of injury is not at all
sufficient to invoke the provisions of Section 307 of I.P.C.
(IV) Learned counsel for the appellants submits that so far as
fourth part of assault i.e. shock with electric wire on left thigh is
concerned, P.W.2 Savita (victim) has stated that the present
appellants have caught hold of her while the husband tried to
electrocute her. Learned counsel submits that nature of the
injury and further part of body is again not be sufficient to
convict the appellants under Section 307 of I.P.C.
10. Learned counsel for the appellants submits that so far as the
charge under Section 316 of I.P.C. is concerned, although the
appellants had no role to play so far as the first assault, still they are
convicted for 10 years for the offence punishable under Section 316
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of I.P.C. None of the acts allegedly committed by the appellants,
even if taken as it is, the case does not fall within the ambit of
Section 316 of I.P.C. against the present appellants. The
prosecution has not even alleged that the present appellants had
shared common intention of husband accused.
11. Learned counsel for the appellants submits that so far as
conviction under Section 498-A of I.P.C. is concerned, the allegations
are about unpaid dowry of Rs.21,000/-. Learned counsel submits
that on the face of it the version is so improbable and no man of
ordinary prudence would go to such extent for recovery of meager
amount of Rs.21,000/- which remained to be unpaid. There was no
complaint in respect of demand. The prosecution has not examined
any independent witness on the point of cruelty.
12. Learned counsel for the appellants submits that the
subsequent conduct of the accused is relevant. As per the
prosecution story, after the incident, an auto rickshaw was called
wherein P.W.2 Savita (victim) was taken to the neighbouring hospital
of Dr. Chondekar by the accused persons and thereafter as per the
advise of Dr. Chondekar, P.W.2 Savita (victim) was taken to the
Apex Hospital, Nanded for treatment. The father of P.W.2 Savita
(victim) was informed by the accused persons and the accused
persons also present in the hospital, where P.W.2 Savita (victim) was
admitted. Further during the course of investigation, statement of
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persons viz. Balu, who has called auto rickshaw for taking P.W.2
Savita (victim) to the hospital from Dr. Chondekar, who was the first
doctor to examine P.W.2 Savita (victim) after the incident. Further,
the statements of neighbourers of the appellants were not recorded.
Though during the course of investigation, investigating officer had
recorded the statement of auto rickshaw driver viz. Gangadhar, who
had carried P.W.2 Savita (victim) to the hospital, however, the
prosecution has not examined the said person as prosecution
witness and defence has examined him as defence witness. The
recovery of alleged articles used for commission of crime is itself
shrouded with doubts, as the recovered articles were never sent for
chemical analysis.
13. Learned counsel for the appellants submits that at present
appellant No.1 i.e. accused No.2 Dhondiba is 71 years whereas
appellant No.2 accused No.3 Chandrakalabai is 70 years of age,
approximately. The physical condition of both the appellants are as
such that they cannot bear the rigorous imprisonment for life in jail.
Considering this, the leniency may be shown. These appellants have
already undergone two years of imprisonment. The learned
Additional Sessions Judge has already awarded the compensation to
P.W.2 Savita (victim). Learned counsel for the appellants submits
that in the alternate without prejudice to the merits of the contentions,
the appellants are ready to give consent for increasing the
compensation to be paid to P.W.2 Savita (victim) instead of sending
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the appellants in jail.
14. Learned A.P.P. submits that the prosecution has proved the
case against appellants beyond doubt. The prosecution has proved
its case on the basis of evidence of P.W.1 Devidas Jadhav, P.W.2
Savita (victim), P.W.4 Dr. Shubhangi Patange from Apex Hospital,
Nanded and P.W.11 Dr. Jaganmani Vendantam from Apollo Hospital,
Hyderabad. P.W.2 Savita is the victim and she has deposed her
suffering in detail about the incident occurred on 20.1.2004. Her
evidence is consistent, reliable and trustworthy. There is no reason
for P.W.2 Savita (victim) to implicate falsely her husband and in laws.
P.W.2 Savita (victim) was subjected to cruelty for various reasons,
including the amount of unpaid dowry. She was forced to abort the
foetus under one or another pretext and also subjected to cruelty on
that count. Learned A.P.P. submits that even conviction of the
appellants accused is sustainable on the basis of testimony of P.W.2
Savita (victim) alone. However, her evidence is well corroborated by
P.W.1 Devidas Jadhav, who happened to be her father and also by
P.W.4 Dr. Shubhangi Patange and P.W.11 Dr. Vendantam. Learned
A.P.P. submits that there is direct evidence about strangulation with
the help of rope. Thus, even if any confusion arises due to
admission given by doctors, however, the ocular evidence would
always prevail, medical evidence is usually hypothetical. Learned
A.P.P. submits that P.W.11 Dr. Vendantam has given clear opinion
that external injuries on the person of P.W.2 Savita (victim) are
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sufficient in normal circumstances to cause her death if no immediate
medical help was given. The external injuries are dangerous to life in
normal circumstances. Learned A.P.P. submits that P.W.2 Savita
(victim) is suffering from various consequences of the said injuries
and as such the appellants are not entitled for any lenient view so far
as the quantum of sentence is concerned. Learned A.P.P. submits
that there is no substance in both these appeals. Both the appeals
are liable to be dismissed.
15. We have perused the material exhibits tendered by the
prosecution, the evidence of the prosecution witnesses; the
statement of the appellants-accused recorded under Section 313 of
Criminal Procedure Code and the impugned judgment.
16. In the instant case, the sole evidence was that of P.W.2 Savita
(victim) herself. No other person was present at the time of incident
to corroborate her statement. P.W.2 Savita (victim) was cohabiting in
her matrimonial home at the time of incident and apparently there
was no reason for her to falsely implicate the appellants. Thus,
conviction could be based on her sole testimony.
17. The marriage of P.W.2 Savita (victim) with the appellant-
accused Madhav was performed on 26.3.2003. According to P.W.2
Savita (victim) and P.W.1 Devidas (father of P.W.2 Savita (victim)),
the dowry amount of Rs.1,21,000/- was settled and out of the said
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amount, an amount of Rs.1,00,000/- with some other articles,
including golden ornaments were given to the appellant-accused
Madhav at the time of marriage. However, remaining unpaid dowry
was agreed to be paid at the time of harvesting of turmeric crop
during the month of March/April, 2004. P.W.2 Savita (victim) has
deposed that she was treated well for 2/3 months after the marriage
and thereafter she was subjected to ill-treatment by asking her to
bring the balance amount of dowry.
18. It appears from the evidence of P.W.2 Savita (victim) and
P.W.1 Devidas that P.W.2 Savita (victim) was subjected to cruelty for
following two reasons:-
(i) Non Payment of balance amount of dowry for Rs.21,000/-.
(ii) P.W.2 Savita (victim) was having black complexion.
(a) The appellants accused did not like P.W.2 Savita (victim)
because of her black complexion. P.W.2 Savita (victim)
has further deposed that the appellant accused Madhav
did not like her as she did not look a person befitting to sit
on motor cycle. She was subjected to teasing and
scolding for household works and also beatings. She was
being subjected to physical and mental torture. P.W.2
Savita (victim) has deposed about the instances. The
appellant accused Madhav took P.W.2 Savita (victim) to
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her parental house on account of Ashadi (a marathi
month) on motor bike. She was dropped there around 1
to 1.30 p.m. The appellant accused Madhav had taken
tea and left that place angrily. At that time, P.W.2 Savita
(victim) has disclosed to her mother about the ill-
treatment being extended to her on account of unpaid
dowry and that she is having dark complexion and
therefore, they did not like her. She has also disclosed
about the nature of ill-treatment being extended to her.
P.W.2 Savita (victim) had stayed with her parents for
about one month. Thereafter, her father and her uncle
dropped P.W.2 Savita (victim) to her matrimonial home.
At that time, they had convinced accused persons that
remaining amount of Rs.21,000/- will be paid in the month
of March/April, 2004 after harvesting of turmeric crop.
They also requested the accused persons not to ill-treat
P.W.2 Savita (victim) and treat her properly. However,
P.W.2 Savita (victim) was subjected to ill-treatment even
thereafter for the same reason continuously. The
appellants-accused were asking Savita as to why she has
not returned to their house with amount. At that time,
P.W.2 Savita (victim) was found pregnant and she was
carrying second month of her pregnancy.
(b) P.W.2 Savita (victim) was also subjected to cruelty for
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one another reason. P.W.2 Savita (victim) deposed that
20 days after she has come back to her matrimonial
home, accused appellant- Madhav took her to Nanded in
one Mauli Hospital on his motor cycle. The appellant
accused Madhav told her that he is diabetic patient and
their children would also be a diabetic patient and as
such, they would not be in a position to bear the
expenses of two diabetic patients. The appellant accused
Madhav thus insisted her that she should abort the foetus,
however, P.W.2 Savita (victim) has refused that proposal.
At Mauli Hospital, Nanded she was examined by Dr.
Shinde. He had opined that she should not abort the
foetus for the said reason. The appellant accused
Madhav thereafter took her to her cousin brother and
disclosed them about the same. Thus, the aunt of P.W.2
Savita (victim) took her to another hospital viz. Vinayak
Hospital. P.W.2 Savita (victim) was again subjected to
examination by Dr. Sangeeta Masare at Vinayak hospital
and said doctor also opined that there is no need for
abortion and there would be no adverse effect on the
foetus in view of the fact that the appellant accused
Madhav is diabetic. However, the appellant accused
Madhav left her in her cousin's room at Nanded and
returned from Nanded alone angrily. On the next day
morning, cousin brother of P.W.2 Savita (victim) viz.
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Ambadas took her to her matrimonial home.
(c) Some days after the aforesaid incident, in the morning
time the appellant accused Madhav has asked P.W.2
Savita (victim) to wash his handkerchief. In the bathroom,
a bucket full of water was kept. As soon as P.W.2 Savita
(victim) has tried to wash the handkerchief in the said
bucket, she got electric shock. She had seen one live
wire in the bucket. Thus, she had raised hue and cry.
Then her sister-in-law removed the said wire from the
bucket. P.W.2 Savita (victim) had made phone call to her
parents from S.T.D. booth. Thereafter her father and
uncle had been to her matrimonial home and assured that
they would pay the unpaid dowry amount in the month of
April, 2004. After they returned to their village, accused
persons again started pestering P.W.2 Savita (victim) as
to why her father and uncle did not bring the amount.
(d) P.W.2 Savita (victim) has further deposed that when she
was in 5th month of her pregnancy, her father took her to
Kedarwadgaon (parents home). At that time, she had
stayed with her parents for about 4/5 days. She has
again disclosed about the ill-treatment at the hands of
appellants-accused and the reasons thereof. Then there
was first Dipawali after the marriage. Her father invited
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her husband for Dipawali festival. Thus, P.W.2 Savita
(victim) went to her parents house with her father for
Dipawali festival. Her husband had been to her parents
house at the time of Padwa after Dipawali. The husband
was offered new clothes and P.W.2 Savita (victim) was
also offered new clothes and thereafter she returned to
her matrimonial home.
(e) After Dipawali festival, the appellants accused persons
continued to pester P.W.2 Savita (victim) for balance
amount of dowry for Rs.21,000/-. At that time, she was
carrying 7th month of her pregnancy. She was taken to
her parents home where she had stayed for about 15
days and she returned to her matrimonial home alongwith
her father. At that time also the father had tried to
convince the accused and assured that he would pay the
balance amount of dowry.
(f) Some 8 days thereafter the appellant accused Madhav
took P.W.2 Savita (victim) to Nanded on his motor cycle
to Vinayak Hospital. The appellant accused Madhav
again insisted her to abort the foetus. On the way, the
appellant accused also threatened her that if she did not
abort the foetus he would push her from bridge alongwith
all articles gifted to him by her parents. At Nanded, they
crapl392.14-
had been to the hospital of Dr. Masare for abortion. At
that time, doctor advised that it was not the stage to abort
as there would be danger to her life. Thus, they returned
to her matrimonial home on motor cycle. Thereafter the
main incident dated 20.1.2004 had taken place.
(g) We have carefully gone through the evidence of P.W.2
Savita (victim), as discussed above. We do not find any
exaggeration. P.W.2 Savita (victim) has plainly deposed
about the incident as taken place. It is well settled that
the cruelty for the purpose of offence under Section 498-A
of I.P.C. need not be physical. Even mental torture or
abnormal behaviour may amount to cruelty or harassment
in a given case. Mental cruelty, of course, varies from
person to person, depending upon intensity and the
degree of endurance. P.W.2 Savita (victim) was
continuously subjected to cruelty as defined under
Section 498-A of I.P.C. on account of her failure or failure
by her parents to meet the unlawful demand of unpaid
dowry. Further, she was subjected to taunting and
teasing for the reason that she was having dark
complexion and she does not match to the status of
appellant-accused Madhav. P.W.2 Savita (victim) was
also subjected to cruelty to abort the foetus under the
pretext that the appellant accused Madhav was diabetic
crapl392.14-
person. In our considered opinion, the appellants
accused persons did not like P.W.2 Savita (victim) a
woman with dark complexion and also because of failure
on her part and also on the part her family members to
meet the demand of unpaid dowry and as such, wanted to
abort the foetus. The said harassment/cruelty has gone
to such an extent that there was an attempt on her life by
keeping a live wire in the bucket of full of water. We are
of the opinion that ingredient of Section 498-A r.w. 34 of
I.P.C. are fully attracted. The trial court has thus rightly
found the appellants accused guilty of the offence
punishable under Section 498-A r.w. 34 of I.P.C.
19. So far as the charge under Section 307 r.w. 34 of I.P.C. is
concerned, P.W.2 Savita (victim) has deposed as follows:-
(a) On 20.1.2004 in the noon, she was cleaning paddy
grains by sitting in the kitchen. At that time, her father-in-
law, mother-in-law and sister-in-law (now she is no
more) were present in the T.V. room. At that time, her
husband came from outside in the kitchen where she
was sitting. He closed the door of kitchen and then
appellants accused Madhav kicked on two occasions in
her abdomen. Meanwhile, her father-in-law, mother-in-
law (the appellants in criminal appeal No. 294 of 2014)
crapl392.14-
and sister-in-law rushed to the kitchen. They entered in
the kitchen room from another door. At that time, her
father-in-law raised the volume of TV. The father-in-law
handed over one rope which was prepared by fertilizer
gunny bag. The appellant accused Madhav put the said
rope around her neck. Her father-in-law caught hold of
her both the hands and her mother-in-law caught hold of
her both the legs and her sister-in-law (now no more)
caught hold of her hairs. Her husband had started
twisting the rope around her neck. P.W.2 Savita (victim)
had tried to loose the ligature and also attacked on her
husband to save herself with her hands. Any how she
has removed the rope from her neck. However, she was
taken to another room by her husband, father-in-law and
mother-in-law, where the TV set was kept.
(b) P.W.2 Savita (victim) has further deposed that in the said
TV room, the appellants accused persons rolled her
saree upward and her husband given her shock on her
buttocks with electric solder which is used for soldering
the parts of radio. At that time, her father-in-law, mother-
in-law caught hold of her hands and legs. P.W.2 Savita
(victim) has further deposed that due to the said shock
her skin was burnt and pain developed at the said place
and therefore, she started raising hue and cry.
crapl392.14-
(c) P.W.2 Savita (victim) has further deposed that her
husband had given some shocks on her left thigh by
electric wire by putting current in it. She thereafter
become unconscious. She has regained her
consciousness at Apollo Hospital, Hyderabad. She was
unconscious for almost 15 days. After she regained the
consciousness she has narrated the incident to her
parents and uncle. She has further deposed that she
was operated in Apollo Hospital, Hyderabad and child
was taken out in still born condition as it was died in
stomach. She was in Apollo hospital for about one month
and thereafter she went to her parents home.
(d) P.W.2 Savita (victim) has deposed that after 20.1.2004
she was unable to do her daily routine work. She could
not walk and could not button her clothes so also comb
her hairs. She cannot eat the food as she has lost
control on her fingers. It is not out of place to mention
that the trial court has taken a note in her deposition
itself that P.W.2 Savita (victim) was brought in the court
hall by her father and other persons by lifting her in their
arms and kept her on the stool kept in the witness box as
the fingers of both of her hands and legs are flexed.
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(e) We have found the evidence of P.W.2 Savita (victim) as
consistent, reliable and trustworthy. There is no reason
for her to make exaggeration to falsely implicate the
appellants accused persons in the crime. Her evidence
is assailed on the ground that there is no corroboration
to her evidence. It is also submitted on behalf of the
appellants in both the appeals that the medical evidence
does not support the prosecution case.
(f) P.W.4 Dr. Shubhangi Patange attached to Apex
Hospital, Nanded has deposed that P.W.2 Savita (victim)
was admitted in her hospital on 20.1.2004 at about 4.25.
p.m. There is no reference in her evidence nor in the
medical papers of Apex Hospital, Nanded, as to who has
brought P.W.2 Savita (victim) in the Apex Hospital,
Nanded. Even in M.L.C. intimation Exh.81 there is no
reference as to who has brought P.W.2 Savita (victim) in
the hospital. P.W.4 Dr. Shubhangi has deposed that
P.W.2 Savita (victim) was unconscious when she was
admitted in the hospital. There was froth oozing from her
mouth and bleeding from her ears. The blood was also
found clotted in her eyes. P.W.4 Dr. Shubhangi has
noted following injuries on the person of P.W.2 Savita
(victim):-
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i) One lenier contused wound on her throat extending
from right to left ear, size 1 ½ cm to 4.5 cm.
ii) Contused lacerted wound on her both hips, size of first
injury 2x3 cm and second injury 3x3 cm.
iii) contused lacerted wound on left thigh size 3.3 cm.
(g) According to her, injury No.1 may be possible by rope.
Injury Nos. 2 and 3 may be caused by any blunt object. In
the hospital, P.W.2 Savita (victim) subjected to
radiological examination and it was found that there was
swelling on her lungs. Her M.R.I. was also done.
Cerebral ischemic leisin was revealed. It can be caused
by throttling and accordingly P.W.4 Dr. Shubhangi
Patange has issued certificate Exh.82, which bears her
signature. Thereafter, P.W.2 Savita (victim) was referred
to Apollo Hospital, Hyderabad. All the while, P.W.2
Savita (victim) was unconscious and even when she was
discharged from Apex Hospital, Nanded, she was
unconscious. P.W.4 Dr. Shubhangi has further deposed
that injury No.1 in Exh.82 is possible by rope article 3,
injury No.2 is possible by soldering machine and injury
No.3 is possible by electric current. In her opinion, injury
No.1 if not treated in time is sufficient to cause death. In
her opinion, oozing froth from mouth and bleeding from
ears may be possible due to throttling. In radiological
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examination, P.W.2 Savita (victim) was found pulmonary
edema, which is possible due to throttling. According to
her, due to throttling there is possibility of becoming the
person physically handicapped. In cross examination,
she had denied with proposition that injury No.1 in
Exh.82 is possible in an attempt to commit suicide. She
has further admitted that she has not described direction
of ligature marks of injury No.2. She has also admitted
that there was no burn injury on the person of P.W.2
Savita (victim) and she has also not noticed any injury on
the person of P.W.2 Savita (victim) live electric wire. She
has further admitted that if the electric shock is given to a
person there are two injuries, one injury at the place
where the electric shock with live wire is given and
second injury on that part from that electric current
discharges from his body. She however, denied that
injury No.3 is not possible if electric current is given.
(h) P.W.11 Dr. Jaganmani Vendantam attached to Apollo
Hospital, Hyderabad, who is physician, has deposed that
P.W.2 Savita (victim) was admitted in his hospital on
26.1.2004 in unconscious state. On examination, he
found that fotal heart sound were absent. He has also
observed that there was a red colour mark on her neck 2
cm below the angle of mandible. There was also
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abrasion below hyoid. There was also electrocuted
marks on the inner aspect of left thigh. During ultrasound
examination, he had noticed that foetus heart beats are
absent and there was over riding of the bones of the skull
of the baby. Therefore, he came to the conclusion that
baby was dead and thus he has removed the foetus.
P.W.2 Savita (victim) regained consciousness after 4/5
days of her admission in the hospital. P.W.11 Dr.
Vendantam discharged P.W.2 Savita (victim) in
haemodianamical stable condition. He has issued
discharge summary which is about 13 pages. It bears his
signature and which is marked Exh.96. According to
P.W.11 Dr. Vendantam external injuries on the person of
P.W.2 Savita (victim) are sufficient to cause death if not
treated immediately. These external injuries are
dangerous to life in normal circumstances. He has
further deposed that due to these injuries patient may
become handicap as nervous system was adversely
affected. The external injuries may have contributed to
death of foetus which was dead prior to 5 days of her
admission.
(i) The discharge summary as per admission and discharge
papers of the Apollo Hospital, Hyderabad produced by
P.W.11 Dr. Vendantam, marked at Exh.96 is re-produced
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herein-below, which speaks for itself:-
"22 years old lady, primigravida with 8 months amenorrhoea,
was allegedly throttled by her in-laws at Nanded on
21.01.2004 at 12.00 p.m. was brought to the emergency room
in an unconscious state. She was initially treated at a local
hospital and was shifted to Apollo for further management.
On admission, patient was unconscious, not responding to
pain, GCS - 3/15, bilateral subconjunctival hemorrhage
present. All limbs were flaccid grade 0/5. Tendor reflexes are
absent. Plantars mute. Per abdomen - Fundal height 28-30
weeks. FHS absent. Abrasions over front of neck, below
hyoid bone were noted. Electrocuted mark over inner aspect
of left thigh was noted. 3 days later patient expelled a dead
female foetus. Patient was in sepsis and pre-renal azotemia.
5-6 days after admission, patient began to respond to SVC.
Gradually began to move lower limbs and then upper limbs.
Speech was clear by next 1 week. She was being given
hematiric supplement for pallor. She was accepting oral feeds.
Physiotheraphy was being given. As she developed bed sore
over gluteal region, regular dressing was done. Patient was
discharged in a stable condition."
(j) In the cross examination, P.W.11 Dr. Vendantam has
admitted that he has not seen the impression of rope
around the neck of P.W.2 Savita (victim). On perusal of
Exh.82, in his opinion, it may be a case of throttling. In
his opinion, injury of 2 cm on angle of mandible is not
possible by Article 3, as he has not mentioned the width
of that ligature mark on the person of P.W.2 Savita
(victim). He has agreed that if there is manual
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strangulation with Article 3, there is fracture of hyiod
bone. However, he has not noticed fracture of hyoid
bones of P.W.2 Savita (victim). He was put a specific
question as to whether when P.W.2 Savita (victim) was
discharged she was not handicapped? To which P.W.11
Dr. Vendantam has answered that handicapped is a very
vague term and when he discharged P.W.2 Savita
(victim) she was haemodianamically stable but her
extremities were weak and the problems like this would
take a longer time for achieving partial recovery. Again
complete recovery may not be possible and this progress
would be periodically assessed by the neurologist and
physiotherapy.
(k) P.W.2 Savita (victim) has deposed that the appellant
accused Madhav has tried to constrict her neck with the
help of rope and at that time she was caught hold by her
father-in-law, mother-in-law. P.W.2 Savita (victim) has
explained as to how she has tried to resist the said
attempt and succeeded in removing the said ligature from
her neck. Even she had tried to assault her husband for
that purpose. In these circumstances, there may not be
any possibility of fracture of hyoid bone. Further, there
may not be any complete ligature around the neck. It is
well settled that the medical evidence cannot be allowed
crapl392.14-
to override the direct evidence about assault. Unless the
medical evidence in its term goes so far it completely
rules out the possibility whatsoever of the manner takes
place in the manner alleged by the victim. The testimony
of eye witnesses cannot be thrown out on the ground of
alleged inconsistency between it and the medical
evidence.
(l) There are following types of strangulation:-
(i) Ligature strangulation,
(ii) Throttling (manual strangulation-compressing with
hand),
(iii) Mugging (compressing with forearm or foot or wrist),
(iv) Bansdola (wooden stick is used to compress the
neck),
(v) Garrotting (a rope or a loincloth and a wooden stick as
a lever to tighten the ligation is used),
(vi) Accidental strangulation.
(m) So far as the ligature marks are concerned, in some
cases, the marks in the neck may not present at all or
may be very slight if the ligature is removed after some
time. Even if it is slight confusion as to whether it is case
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of throttling or strangulation, however, in the given set of
allegations, it may not be possible to give clear medical
opinion as to whether it is case of strangulation by ligature
or manual strangulation by throttling. The medical
evidence may corroborate the prosecution witnesses or in
some it may not. The court, however, cannot apply any
universal rule whether ocular evidence would be relied
upon or the medical evidence, as the same will depend
upon facts and circumstances of each case and no hard
and fast rule can be laid down therefor. In the instant
case, we believe the ocular evidence and we find no error
committed by the trial court in relying upon the ocular
evidence of P.W.2 Savita (victim).
(n) So far as the other external injuries on the person of
P.W.2 Savita (victim) are concerned, those injuries
corroborate her evidence. There were injuries on her
buttocks which might have been caused by soldering
machine as accepted by the experts. So far as injury on
thigh is concerned, which is allegedly caused by live
electric wire, however, it cannot be ignored that P.W.2
Savita (victim) was surrounded by four persons at the
time of incident i.e. three appellants-accused persons
before us and one accused, who died before filing of
charge sheet. So far as injuries on the buttocks are
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concerned, the same may not be resulted in the burn
injuries. Even P.W.4 Dr. Shubhangi has also deposed
that the same depends upon as to how long the soldering
machine is kept on the part of body.
(o) In the considered opinion of both the doctors i.e. P.W.4
Dr. Shubhangi Patange and P.W.11 Dr. Vendantam that
external injuries on the person of P.W.2 Savita (victim)
are sufficient to cause death if not treated immediately, as
the said injuries are dangerous to life in normal
circumstances.
(p) Learned counsel for the appellants in criminal appeal No.
294 of 2014 so also learned counsel for the appellant-
accused Madhav in criminal appeal No. 392 of 2014 have
vehemently submitted that the appellant accused
Madhav entered in the kitchen room and closed the door
from inside and as such, it was not possible for the
appellants accused i.e. father-in-law and mother-in-law to
enter in the kitchen room. There is no another door to the
kitchen room. We find no substance in the submissions
made on behalf of the appellants accused in this regard.
(q) We have carefully gone through the contents of spot
panchnama Exh.84. The house of the appellants
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accused is consisting of four rooms i.e. (I) kitchen, (ii)
Devghar, (iii) sleeping room and (iv) drawing room. It has
been specifically mentioned in the spot panchnama
Exh.84 that kitchen room is facing towards east and there
is one door towards eastern side. So far as the Devghar
is concerned, the same is towards western side of the
kitchen. It is also mentioned in the panchnama that
towards western side of the kitchen there is one another
door. It is thus clear from the contents of spot
panchnama Exh.84 that there are two entrances (doors)
to the kitchen room. One opens towards eastern side
and another opens towards western side. P.W.2 Savita
(victim) has deposed that when she was cleaning the
paddy grains by sitting in the kitchen room her husband
came from outside. It is not out of place to repeat here
that said kitchen room faces towards east and door
opens towards eastern side. There is no another room
towards eastern side of the kitchen room. Her husband
came to the kitchen when she was sitting and he closed
the door of kitchen room from inside. He had given two
kicks of blow on her abdomen. Meanwhile, her father-in-
law, mother-in-law and sister-in-law (now no more)
rushed to the kitchen room. They entered in the kitchen
from another door. She has also deposed that at that
time her father-in-law raised the volume of T.V. We
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have carefully gone through the map drawn of the spot
panchnama Exh.84. It appears that the drawing room is
towards southern side of the kitchen room and sleeping
room is also towards southern side adjacent to drawing
room and Devghar. The said drawing room has also door
opens towards eastern side. Thus, it appears that the
house faces towards east and as such, entrance of the
house is also towards east side for access to the drawing
room and also to the kitchen. It further appears that from
the drawing hall, there is door opens towards the
sleeping room and one another door to the sleeping room
opens towards Devghar. We have already discussed
that there is another door between Devghar and kitchen.
It is thus possible for the father-in-law, mother-in-law and
sister-in-law to use the said door to enter in the kitchen.
It is rather obvious to have internal access to all rooms
despite the access from outside to the drawing room and
the kitchen room.
(r) It is well settled that intention to cause death can be
gathered generally from a combination of a few or
several of the following, among other, circumstances.
(i) nature of the weapon used;
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(ii) whether the weapon was carried by the accused or
was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or
sudden right or free for all fight;
(vi) whether the incident occurs by chance or whether
there was any pre-meditation;
(vii) whether there was any prior enmity or whether the
deceased was a stranger;
(viii) whether there was any grave and sudden provocation,
and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue
advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several
blows.
(s) In the instant case, after considering all facts it appears
that assault was made on P.W.2 Savita (victim) with
premeditation and pre-planning. The appellant accused
Madhav has entered in the kitchen room from outside,
closed the door from inside and given two kicks blows on
the abdomen of P.W.2 Savita (victim). It is not out of
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place to repeat here that P.W.2 Savita (victim) was
subjected to cruelty on the count to abort the foetus under
the pretext that the appellant accused Madhav suffers
from diabetic and the baby in the womd would also the be
patient of diabetic. Immediately, thereafter, father-in-law,
mother-in-law and sister-in-law entered in the kitchen from
another door. The appellant accused Dhondiba (father-in-
law) brought with him a rope which he had handed over to
appellant accused Madhav. Thus, considering these facts
of entering simultaneously in the kitchen and assaulting
P.W.2 Savita (victim) in the manner as discussed above,
clearly indicates that the assault was made after
premeditation and pre-planning. There was prior concert
of mind for making the assault. P.W.2 Savita (victim) was
helpless. Though she was succeeded in removing the
ligature pressed around her neck, however, she could not
foil the other attempts on her life. She has become
unconscious when she was taken to another room and
subjected to further torture. The appellants accused have
acted in cruel and unusual manner. P.W.2 Savita (victim)
was carrying 7th month and some odd days of her
pregnancy. Even then appellant accused No.1 Madhav
kicked on her abdomen twice and all the appellants in
furtherance of their common intention tried to kill her. It is
a clear case of attempt to commit murder. There is no
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scope to draw any other inference. The court is bound to
consider the act, irrespective of its result, so done with an
intention or knowledge and under the circumstances
mentioned in Section 307 of I.P.C. So far as the injury is
concerned, it is on vital part and dangerous to life as
stated by both the doctors. Thus, the trial court has rightly
held that the appellants accused are guilty of the charge
for the offence punishable under Section 307 r.w. 34 of
I.P.C.
20. So far as the charge under Section 316 r.w. 34 of I.P.C. is
concerned, any act or omission of such a nature and done under
such circumstance as would amount to offence of culpable homicide,
if the sufferers were a living person, will, if done to a quick unborn
child whose death is caused by it, constitute the offence under
Section 316 of I.P.C. We have confirmed in the foregoing paras the
findings recorded by the trial court that assault on P.W.2 Savita
(victim) was done with intention or with knowledge, which brings it
within the purview of Section 299 of I.P.C. and in view of the same,
because of the death of a quick unborn child has resulted from an act
against P.W.2 Savita (victim) attracted the ingredients of Section 316
of I.P.C. It is well known that foetus gets life after 12 weeks of
conception. It is not disputed that P.W.2 Savita (victim) was carrying
28th week of her pregnancy. We would like to repeat here the opinion
expressed by P.W.11 Dr. Jaganmani Vendantam that external
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injuries on the person of P.W.2 Savita (victim) may have contributed
to the death of foetus, who died prior to five days of admission of
P.W.2 Savita (victim) in Apollo Hospital, Hyderabad. The incident had
taken place on 20.01.2004 whereas P.W.2 Savita (victim) was
admitted in Apollo Hospital, Hyderabad on 26.01.2004. It thus
appears that immediately after the incident, death of foetus was
occurred. We find no fault in the finding recorded by the trial court
that the appellants accused are guilty of the offence punishable
under Section 316 of I.P.C.
21. Though P.W.6 Vishwanath and P.W.7 Keshav, who are the
panch witnesses to memorandum pancahnama Exh.101 and
recovery panchnama Exh.102, have not supported the prosecution
case, however, P.W.12 Dy. S.P. Milind Khodve (the then A.P.I.) has
deposed about the statement made by the appellants accused
Madhav showing his willingness to point out the weapons used in the
commission of offence concealed in his field Gat No.247. On the
basis of the said disclosure statement, memorandum panchnama
Exh.101 was prepared in presence of panchas and the appellant
accused Madhav led the team towards one canal. As per his
direction, they have stopped the jeep and covered a distance of 1 to
2 furlong. The appellant accused Madhav led them to his field Gat
No.247. There was one heap of dried stems of Tur crop. The
appellant accused Madhav took out three articles. Those Articles are
soldering machine with wire attached to it, electric wire of yellow
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colour and one ligature which was about 9 feet in length made from
gunny bag of chemical fertilizer. Accordingly, seizure panchnama
was prepared vide Exh.102. Article No.1 is electric soldering
machine, Article No.2 is electric wire of yellow colour and Article No.3
is nylon rope prepared by fertilizer gunny bag. We find no substance
in the submissions made on behalf of the appellants-accused that
recovery at the instance of the appellants-accused is not proved.
Further, so far as the soldering machine and electric wire are
concerned, there is no reason to send those articles for chemical
analysis. Even Article No.3 rope prepared from fertilizer gunny bag
was also not required to be sent to the chemical analysis for any
purpose since P.W.2 Savita (victim) has succeeded in removing the
said nylon rope from her neck by resisting the attempt to kill her.
22. We are also not impressed by the submissions made on behalf
of the appellants accused to the effect that the evidence of P.W.2
Savita (victim) suffers from contradictions, omissions and
improvements. There are some minor contradictions and omissions,
however, those are not material. Furthermore, P.W.1 Devidas, father
of P.W.2 Savita (victim) and P.W.3 Shivaji, uncle of P.W.2 Savita
(victim) have duly corroborated her evidence about the ill-treatment
being extended to her as disclosed to them by P.W.2 Savita (victim).
23. In the case of Sarju Prasad vs. State of Bihar, (supra); relied
upon by learned counsel for the appellant in criminal appeal No. 392
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of 2014 in para Nos. 7, 9 and 10, the Supreme Court has made the
following observations:-
"7. Having said all this we must point out that the burden
is still upon the prosecution to establish that the intention of
the appellant in causing the particular injury to Shankar
Prasad was of any of the three kinds referred to in Section
300, Indian Penal Code. For, unless the prosecution
discharges the burden the offence under Section 307, I. P. C.
cannot possibly be brought home to the appellant. The state
of the appellant's mind has to be deduced from the
surrounding circumstances and as Mr. Kohli rightly says the
existence of a motive to cause the death of Shankar Prasad
would have been a relevant circumstance. Here, the
prosecution has led no evidence from which it could be
inferred that the appellant had a motive to kill the victim of his
attack. On the other hand he points out that as the appellant
had no enmity with Shankar Prasad that neither of them even
knew each other and that as the appellant inflicted the injury
on Shankar Prasad only to make him release the wrist of
Sushil while Sushil was in the act of stabbing Madan Mohan
he cannot be said to have had the motive to kill Shankar
Prasad and, therefore, no intention to cause murder or to
cause any injury which may result in death could be inferred.
Now, it is the prosecution case that about a week before the
incident Sushil, for certain reasons, had given a threat to
Madan Mohan to the effect that he would be taught a lesson
and according to the prosecution Sushil and the appellant
Sarju were lying in wait for Madan Mohan in the chowk on the
day in question with chhuras with the intention of murdering
him. The prosecution wants us to infer that these two persons
also had the intention of murdering any one who went to the
rescue of Madan Mohan. It seems to us that from the facts
established it cannot be said that the appellant had the
crapl392.14-
intention of causing the death of Shankar Prasad or of any
one who went to Madan Mohan's rescue. If such were his
intention then another significant fact would have possibly,
though not necessarily, deterred him and that is that Madan
Mohan and Shankar Prasad were not the only persons there
at that time but were accompanied by some other persons.
Moreover the incident occurred in broad day light in a chowk
which must be a well-frequented area. It is not easy to
assume that in such circumstances the appellant could have
intended to commit a crime for which the law has provided
capital punishment.
8.....
9. It is true that the witnesses say that the appellant used
a chhura. It is also true that the injury was inflicted on a vital
part of the body but the fact remains that no vital organ of the
body was injured thereby. Again, we do not know how big the
chhura was and, therefore, it cannot be said that it was
sufficiently long to penetrate the abdomen deep enough to
cause an injury to a vital organ which, would in the ordinary
course of nature be fatal. The chhura could not be recovered
but the prosecution should at least have elicited from the
witnesses particulars about its size. We are, therefore,
unable to say with anything near certainty that the appellant
had such intention or knowledge. Incidentally we may point
out that Shankar Prasad does not say that after he released
the wrist of Sushil the appellant inflicted or even tried to inflict
any further injury on him.
10. In this state of the evidence we must hold that the
prosecution has not established that the offence committed
by the appellant falls squarely under Section 307, I. P. C. In
our opinion, it amounts only to an offence under Section 324,
crapl392.14-
I. P. C."
In the facts of the cited case, the Supreme Court has made
observations in para 9 as above. In the instant case, however, the
prosecution has proved beyond doubt the murderous intention of the
appellants accused to eliminate P.W. Savita (victim).
24. In the case of Hari Kishan & State of Harayana vs. Sukhbir
Singh and others (supra) relied upon by learned counsel for the
appellant in criminal appeal No. 392 of 2014 in para 7, the Supreme
Court has made the following observations:-
"7. On the first question as to acquittal of the accused
under s.3O7/149 IPC, some significant aspects may be borne
in mind. Under s.307 IPC what the Court has to see is,
whether the act irrespective of its result, was done with the
intention or knowledge and under circumstances mentioned in
that section. The intention or knowledge of the accused must
be such as is necessary (to) constitute' murder. Without this
ingredient being established, there can be no offence of
"attempt to murder". Under s. 307 the intention precedes the
act attributed to accused. Therefore, the intention is to be
gathered from all circumstances, and not merely from the
consequences that ensue. The nature of the weapon used,
manner in which it is used, motive for the crime, severity of the
blow, the part of the body where the injury is inflicted are some
of the factors that may be taken into consideration to
determine the intention."
It is well settled that the intention is to be gathered from all
crapl392.14-
circumstances and not merely from the consequences that ensue.
The ratio laid by the Supreme Court in the aforesaid case, cannot be
applied to the facts and circumstances of the instant case, as we find
murderous intention on the part of the appellants accused herein.
25. In the case of Hari Mohan Mandal vs. State of Jharkhand,
(supra) relied upon by learned counsel for the appellant in criminal
appeal No. 392 of 2014 in para No. 17 the Supreme Court has made
the following observations:-
"17. The first injury was certainly on a vital part and taking
into account the injuries on the various parts of the body.
Section 307 IPC has been rightly invoked. The accused has
been rightly convicted for offences punishable under Section
307, IPC. However, taking into account the fact that the
altercations took place at the time of husking paddy and there
was no pre-meditation or planning of the attack, custodial
sentence of five years would meet the ends of justice. It is to
be noted that scope for consideration in the appeal was limited
to the nature of offence and consequently the sentence."
26. In the case of Jabbar and others vs. State, (supra) relied
upon by learned counsel for the appellant in criminal appeal No. 392
of 2014 in para No. 12, the Supreme Court has made the following
observations:-
"12. It is clear that Section 316, I.P.C. can only apply if the
action resulting in a death was capable of amounting to
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culpable homicide. The section does not specifically state that
the action must be directed against the mother and not the
quick unborn child. From the illustration to the section, which
is intended to clarify the meaning of the "act", it appears that
the act must be of such a nature that the offence committed
against the mother herself would be culpable homicide if the
mother had died as a result of it. If the act is intended only to
cause miscarriage without the consent of the mother, it could
fall under Sections 312 and 313, I.P.C. or under Section 314,
I.P.C. If the act is intended to cause the death of the child
before its birth or to cause it to die after its birth it is an
offence punishable under Section 315, I.P.C. Hence, an
offence under Section 316, I.P.C. must be deemed to refer to
acts directed against the mother. And these acts have to be of
such a character that the offender would have been guilty of
culpable homicide if she had died. The resulting injury to the
child carried in the womb of the mother may be quite
unintended and yet an offence under Section 316, I.P.C.
would be made out. The action must be such that it results in
the death of a "quick unborn child" instead of the death of the
mother which could have been caused by the action."
So far as two cases i.e. Hari Mohan Mandal vs. State of
Jharkhand, (supra) and Jabbar and others vs. State, (supra) are
concerned, the ratio laid down in those cases is not disputed.
27. So far as the sentence part is concerned, we are not inclined to
reduce the sentence only for the reason that the appellants accused
persons are ready to give their consent to grant more compensation
to P.W.2 Savita (victim) for reducing the sentence. However, at the
same time, we cannot ignore that the trial court has given maximum
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punishment to all the appellants accused. The trial court has
observed that P.W.2 Savita (victim) was newly married girl and within
one year of her marriage, she was assaulted in a very brutal manner.
P.W.2 Savita (victim) cannot stand and walk herself. She was
actually brought in the court room by lifting her. The fingers of her
hands and legs are flexed. However, appellant accused No.1
Madhav was 23 years of age at the time of incident. Furthermore, the
appellant-accused Dhondiba and Chandrakalabai are at present
more than 70 years of age. Thus, on this backdrop reducing the
sentence appropriately passed against them would meet the ends of
justice.
28. Though we have given thoughtful consideration to the
submissions made on behalf of the appellant accused No.2
Dhondiba (father-in-law) and appellant accused No.3 Chandrakalabai
(mother-in-law) for reducing their sentence for the reason that the
main role has been attributed to appellant accused No.1 Madhav and
they have merely assisted him, however, it is clear case of pre-
meditation and common intention. The manner in which appellant
accused No.2 Dhondiba and appellant accused No.3 Chandrakalabai
alongwith their daughter (who is no more alive) entered in the kitchen
room from another door as soon as appellant accused No.1 Madhav
entered in the kitchen from outside door and given blows of kicks on
the abdomen of P.W. 2 Savita (victim) and further appellant accused
No.2 Dhondiba had handed over nylon rope prepared from fertilizer
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gunny bag to appellant accused No.1 Madhav, the case of the
appellant accused No.2 Dhondiba and appellant accused No.3
Chandrakalabao cannot be separated even for reducing the
sentence substantially by paying more compensation.
29. In view of the discussion and the observations made in the
foregoing paras, we proceed to pass the following order:-
ORDER
I. Criminal appeal Nos. 392 of 2014 and 294 of 2014 are hereby
partly allowed.
II. The impugned judgment and order passed by the Additional
Sessions Judge, Kandhar dated 23.05.2014 in Sessions
Case No.23 of 2004, convicting thereby appellant-original
accused No.1 Madhav Dhondiba Wadwale, appellant original
accused No.2 Dhondiba Devrao Wadwale and appellant
original accused No.3 Chandrakalabai Dhondiba Wadwale,
for the offences punishable under Sections 498-A r.w. 34, 307
r.w. 34 and 316 r.w. 34 of I.P.C. stands confirmed.
Instead of
III. The sentence to suffer imprisonment for life each under
Section 307 r.w. 34 of I.P.C. and sentence to suffer R.I. for 10
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years each under Section 316 r.w. 34 of I.P.C. the same is
reduced to the extent as follows;
(a) The appellant-original accused No.1 Madhav Dhondiba
Wadwale, appellant-original accused No.2 Dhondiba Devrao
Wadwale and appellant-original accused No.3
Chandrakalabai Dhondiba Wadwale are hereby sentenced to
suffer imprisonment for 10 years each and to pay fine of
Rs.25,000/- (Twenty five thousand) each i/d to suffer further
R.I. for six months each under Section 307 r.w. 34 of I.P.C.
(b) The appellant-original accused No.1 Madhav Dhondiba
Wadwale, appellant-original accused No.2 Dhondiba Devrao
Wadwale and appellant-original accused No.3
Chandrakalabai Dhondiba Wadwale are hereby sentenced to
suffer imprisonment for 05 years each and to pay fine of
Rs.25,000/- (Twenty five thousand) each i/d to suffer further
R.I. for six months each under Section 316 r.w. 34 of I.P.C.
IV. Rest of the order stands confirmed.
V. The bail bonds furnished by the appellants in criminal appeal
No. 294 of 2014 i.e. original accused No.2 Dhondiba Devrao
Wadwale and original accused No.3 Chandrakalabai
Dhondiba Wadwale in terms of order dated 08.01.2016
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passed by this Court while releasing them on bail, stands
cancelled. The appellant accused No.2 Dhondiba Devrao
Wadwale and appellant accused No.3 Chandrakalabai
Dhondiba Wadwale shall undergo remaining part of their
respective sentences in terms of the order passed in this
appeal.
VI. Criminal appeal Nos. 392 of 2014 and 294 of 2014 are
accordingly disposed of.
( SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)
rlj/
