Mangesh S/O Deorao Kannake vs State Of Mah. Thr. Pso Ps ...
2022 Latest Caselaw 11725 Bom

                                                   1                    apeal260.21.odt


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

                   CRIMINAL APPEAL NO. 260 OF 2021

      Mangesh s/o Deorao Kannake (Accused No.1)
      Aged about 32 years, Occ: Labour,
      R/o Hanuman Ward, Gadchiroli,
      Tahsil and District Gadchiroli.
                                                                     ...APPELLANT

            ---VERSUS---

      State of Maharashtra,
      Through its Police Station Officer,
      Police Station, Gadchiroli,
                                                                     ...RESPONDENT
      Tahsil and District Gadchiroli.

 ----------------------------------------------------------------------------------------
 Shri Abdul Subhan, Advocate for the appellant.
 Shri M.J. Khan, APP for respondent/State.
 ----------------------------------------------------------------------------------------
                                   CORAM     : G.A. SANAP, J.
                                 RESERVED ON : SEPTEMBER 08, 2022.
                               PRONOUNCED ON : NOVEMBER 17, 2022.

 JUDGMENT :

1. In this appeal, the appellant challenges the judgment and

order dated 01.04.2021 passed in Sessions Case No.87 of 2016 by

the learned Sessions Judge, Gadchiroli, whereby the learned Judge

convicted the appellant (accused no.1) for the offence punishable

under Section 304B of the Indian Penal Code (for short, 'IPC') and

sentenced him to undergo rigorous imprisonment for ten years and

pay fine of ₹25,000/-, in default to undergo further simple

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imprisonment for six months.

The prosecution case, in short, is as follow:

2. Informant-Suresh Khobragade, who is father of deceased

Shefali lodged report on 19.06.2016 against the appellant and

remaining four accused. The learned Sessions Judge acquitted

accused nos.2,3 and 5. Accused no.4 died during pendency of the

trial and therefore prosecution abated against her. Acquitted accused

no.2 is the brother of the appellant. Acquitted accused no.3 is the

brother-in-law of the appellant. Deceased accused no.4 is the

mother of the appellant. Acquitted accused no.5 is the sister of the

appellant. There was love affair between the appellant and deceased

Shefali. Deceased Shefali and appellant on 05.06.2016 by

maintaining utmost secrecy performed the marriage at Markanda

temple. The appellant and the informant are the resident of

Gadchiroli. After marriage, deceased Shefali went to stay with the

appellant at the house of Pallavi (accused no.5). Informant and his

family members did not like the marriage and therefore severed all

ties with deceased Shefali.

3. It is the case of the prosecution that after 4 to 5 months of the

marriage, the appellant and the acquitted accused started ill-treating

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deceased Shefali. The appellant and his family members told the

deceased that if her father had performed her marriage, he would

have spent near about five to six lakh rupees. The love marriage has

saved the money of the father of deceased Shefali. Therefore, they

insisted deceased Shefali to bring five to six lakh rupees from her

father as dowry. The appellant and his family members wanted to

construct upper floor of the house therefore they needed money.

Deceased Shefali was caught in precarious position inasmuch as she

had married with appellant against wish of her parents. One day,

deceased Shefali made a phone call to her mother and informed her

that the appellant and other accused are making demand of five to

six lakh rupees towards dowry. She further informed that on

account of this demand she was subjected to ill-treatment and

cruelty. On 27.05.2016, the mother of the deceased called her to the

house of her neighbour Lalita Sonpipre. On 27.05.2016, there was

birthday celebration of the son of Lalita Sonpipre. Under the pretext

of attending birthday, deceased Shefali came to the house of Lalita

Sonpipre. Mother of the deceased and deceased Shefali met there.

The deceased told her mother that her in-laws are demanding five to

six lakh rupees towards dowry for construction of upper floor of the

house. On that count she was subjected to mental and physical

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harassment. She narrated this in presence of Lalita Sonpipre. After

sometime, husband of deceased went there and picked-up deceased

Shefali with him to his house. On 29.05.2016, the dead body of

deceased Shefali was found in the village pond. The police conveyed

this information to the informant and his family members. They

went to the hospital and saw the dead body.

4. The appellant on 29.05.2016 at about 15:00 hours went to the

Police Station and lodged the missing report of deceased Shefali.

However, by that time, dead body of deceased Shefali was found in

the pond. On the basis of this report, a Merg bearing No.30/2016

was registered. The police recovered the dead body of Shefali and

performed inquest panchanama of the dead body. The police

forwarded dead body of Shefali to Government Hospital for

postmortem. The Medical Officer on the basis of observations at the

time of postmortem reserved his opinion subject to the viscera

report.

5. The informant and his family members were not informed by

the appellant and his family members, when deceased Shefali

allegedly went missing. The informant and his family members,

therefore, became suspicious that deceased Shefali was killed by the

appellant and his family members. He therefore went to Police

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Station, Gadchiroli on 30.05.2016 to lodge report. The police

refused to take the report. On 31.05.2016, he forwarded the report

by speed post to Gadchiroli Police Station but there was no

response. Therefore, the informant went to the Superintendent of

Police, Gadchiroli on 06.06.2016. After great persuasion on

19.06.2016 his report was recorded at Gadchiroli Police Station. On

the basis of his report, a Crime bearing No.116/2016 came to be

registered for the offence punishable under Section 304B read with

Section 34 of the IPC against the appellant and the reaming

accused. The Investigating Officer recorded the statements of the

witnesses. He obtained the opinion of the Medical Officer. The

Medical Officer categorically stated that death was due to

strangulation with postmortem drowning. After investigation,

charge-sheet came to be filed. On committal of the case, the learned

Sessions Judge framed the charge against the appellant and other

accused for the offence punishable under Section 304B read with

Section 34 of the IPC. The alternate charge was framed under

Section 302 read with Section 34 of the IPC.

6. The prosecution examined in all 12 witnesses. The prosecution

relied upon number of documents. The learned Sessions Judge on

consideration of the evidence, found the appellant alone guilty for

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the offence punishable under Section 304B of the IPC. Remaining

accused were acquitted. Being aggrieved by conviction and sentence

the appellant is before this Court in appeal.

7. I have heard Shri Abdul Subhan, learned advocate for the

appellant and Shri M.J. Khan, learned APP for respondent/State.

Perused the record and proceedings.

8. The learned advocate for the appellant submitted that

prosecution has failed to establish the basic ingredients of Section

304B of the IPC. Learned advocate submitted that the evidence

adduced by the prosecution is not sufficient to prove the charge

against the appellant. Learned advocate pointed out that on the

basis of the identical evidence learned Sessions Judge has granted

benefit of doubt to the remaining accused and acquitted them.

Learned advocate submitted that on the basis of same evidence,

learned Judge should not have convicted and sentenced the

appellant. Learned advocate submitted that the informant and his

family members had grudge against the appellant and his family

members because daughter of the informant deceased Shefali had

eloped with the appellant and performed marriage against their

wish. The learned advocate took me through the evidence of the

informant and his wife i.e. mother of deceased Shefali and

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submitted that their evidence is not sufficient to prove the guilt of

the appellant. Learned advocate submitted that on material aspects

there are omissions, contradictions and inconsistencies in their

evidence. As far as the remaining witnesses are concerned, the

learned advocate submitted that their evidence is not sufficient to

corroborate the evidence of the informant (PW1) and mother of

deceased Shefali (PW3). Learned advocate took me through the

evidence of PW6 and submitted that this witness was brought on

scene to rope-in the appellant and his family members. The learned

advocate submitted that number of prohibition cases have been

registered against PW6 at Gadchiroli Police Station. It is therefore

submitted that in order to oblige the police for favour, PW6

concocted a story which is totally unbelievable. Learned advocate

while commenting on the evidence of the Medical Officer

submitted that initially the Medical Officer was not able to give

opinion as to the cause of death. Learned advocate submitted that

the opinion as to the cause of death obtained later on was in

connivance with the police and the informant. Learned advocate

submitted that the learned Sessions Judge has committed a mistake

in convicting the appellant.

9. Learned APP Shri M.J.Khan, submitted that the evidence

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adduced by prosecution is a cogent and reliable. He submitted that

on the basis of this evidence, the prosecution has proved guilt

against the appellant beyond reasonable doubt. Learned APP

submitted that there was no reason for deceased Shefali to make

false complaint against the appellant and his family members and so

for the informant to falsely implicate them. Learned APP submitted

that the cause of death namely strangulation with postmortem

drowning, indicates that the deceased was killed and her dead body

was thrown in the village pond. Learned APP submitted that

fortunately for the appellant he has escaped the dragnet of the

offence under Section 302 of the IPC. The learned APP submitted

that deceased Shefali died within 5 to 6 months of her marriage.

Learned APP submitted that there is ample evidence to prove that

the demand of dowry was made by the appellant and his family

members. Learned APP in short supported the judgment and order

passed by the learned Sessions Judge.

10. In order to appreciate rival submissions, I have minutely

perused the evidence on record. Learned Sessions Judge, as can be

seen from the judgment and order has not at all considered the

charge framed under Section 302 read with Section 34 of the IPC.

No finding has been recorded one way or the other. There is no

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order of acquittal of the appellant and remaining accused for the

offence punishable under Section 302 read with Section 34 of the

IPC. It is seen that on the basis of materials compiled in the charge-

sheet and the medical evidence, charge under Section 302 read with

Section 34 of the IPC was framed as an alternate charge by the

learned Sessions Judge. The charge was framed on 12.01.2018. The

first witness was examined on 03.05.2018. The last witness was

examined on 21.08.2019. After examination of the last witness, on

04.11.2019, the incharge of the Gadchiroli Police Station had

forwarded postmortem notes, query report and viscera analysis

report to the Civil Surgeon, Gadchiroli with request to give final

opinion as to cause of death. The final opinion was given on

04.11.2019. The Panel of Doctors opined that the cause of death was

strangulation with postmortem drowning. On receipt of this

opinion, the prosecution made a request to recall the Medical

Officer. The application was allowed and Medical Officer was

examined. The accused persons by taking benefit of this order of

allowing prosecution to place on record the final opinion of cause of

death, cross-examined remaining witnesses. It is to be noted that

learned Sessions Judge at the time of granting application for taking

final opinion as to cause of death on record and granting the

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permission to examine the medical officer, was expected to modify

and/or alter the charge. In view of this concrete opinion the charge

under Section 302 of the IPC ought to have been a principal charge

against all the accused. It is seen from the record that learned

Sessions Judge, by exercising powers under Section 216 of the Code

of Criminal Procedure, did not alter or frame the additional charge

for principal offence under Section 302 of the IPC. It is seen that

the learned Sessions Judge completely ignored the opinion of the

medical officer as to the cause of death. The opinion of cause of

death clearly indicated that deceased Shefali was killed and

thereafter her dead body was thrown in the village pond.

11. It would be profitable in the above context to consider the

judicial pronouncement of the Hon'ble Supreme Court in the case

of Vijay Pal Sing and others Vs. State of Uttarakhand reported in

(2014) 15 SCC 163. Paragraphs 18, 19 and 20 would be important

and same reads thus:

"18.However, it is generally seen that in cases where a married woman dies within seven years of marriage, otherwise than under normal circumstances, no inquiry is usually conducted to see whether there is evidence, direct or circumstantial, as to whether the offence falls under Section 302 of IPC. Sometimes, Section 302 of IPC is put as an alternate charge.

11 apeal260.21.odt

In cases where there is evidence, direct or circumstantial, to show that the offence falls under Section 302 of IPC, the trial court should frame the charge under Section 302 of IPC even if the police has not expressed any opinion in that regard in the report under Section 173(2) Cr.PC. Section 304B IPC can be put as an alternate charge if the trial court so feels. In the course of trial, if the court finds that there is no evidence, direct or circumstantial, and proof beyond reasonable doubt is not available to establish that the same is not homicide, in such a situation, if the ingredients under Section 304-B IPC are available, the trial court should proceed under the said provision. In Muthu Kutty and another v. State, this Court addressed the issue and held as follows:

"20. A reading of Section 304-B IPC and Section 113-B, Evidence Act together makes it clear that law authorises a presumption that the husband or any other relative of the husband has caused the death of a woman if she happens to die in circumstances not normal and that there was evidence to show that she was treated with cruelty or harassed before her death in connection with any demand for dowry. It, therefore, follows that the husband or the relative, as the case may be, need not be the actual or direct participant in the commission of the offence of death. For those that are direct participants in the commission of the offence of death there are already provisions incorporated in Sections 300, 302 and

304. The provisions contained in Section 304-B IPC and Section 113-B of the Evidence Act were incorporated on the anvil of the Dowry Prohibition (Amendment) Act, 1984, the main object of which is to curb the evil of dowry in the society and to make it severely punitive in nature and not to extricate

12 apeal260.21.odt

husband's or their relatives from the clutches of Section 302 IPC if they directly cause death. This conceptual difference was not kept in view by the courts below. But that cannot bring any relief if the conviction is altered to Section 304 Part II. No prejudice is caused to the accused- appellants as they were originally charged for offence punishable under Section 302 IPC along with Section 304-B IPC."

19. In a recent decision, this Court in Jasvinder Saini v. State (Government of NCT of Delhi), observed thus:

"15. It is common ground that a charge under Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial court in that view of the matter acted mechanically for it framed an

13 apeal260.21.odt

additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case. The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir case, but it would have been more appropriate to remit the matter back to the trial court for fresh orders rather than lending support to it in the manner done by the High Court."

20. Though in the instant case the accused were charged by the Sessions Court under Section 302 IPC, it is seen that the trial court has not made any serious attempt to make an inquiry in that regard. If there is evidence available on homicide in a case of dowry death, it is the duty of the investigating officer to investigate the case under Section 302 IPC and the prosecution to proceed in that regard and the court to approach the case in that perspective. Merely because the victim is a married woman suffering an unnatural death within seven years of marriage and there is evidence that she was subjected to cruelty or harassment on account of demand for dowry, the prosecution and the court cannot close its eyes on the culpable homicide and refrain from punishing its author, if there is evidence in that regard, direct or circumstantial."

12. It is apparent that there was confusion with regard to the

offence of murder and the offence of dowry death in the mind of

learned Sessions Judge. It is to be noted that the offence of dowry

death is different from the offence of murder. A case of dowry death

may not necessarily be a murder. However in case of murder there

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can be a dowry death. The ingredients of the offence of murder and

the ingredients of the offence of dowry death, as can be seen on

plain reading are totally different. The learned Sessions Judge as can

be seen has completely ignored this important aspect and proceeded

on the assumption that offence of dowry death would take in its fold

offence of murder.

13. It is seen on perusal of the judgment that the learne

Sessions Judge did not frame a point for determination with regard

to the charge under Section 302 read with Section 34 of the IPC.

He did not discuss this charge in the judgment. In my view, this was

totally contrary to the express provision of law. The witnesses were

recalled after granting permission for taking final opinion of cause of

death on record. It is further seen that learned Sessions Judge has

accepted the case of prosecution that deceased Shefali died

homicidal death. In my view, this was the crux of the matter. In this

view of the matter, charge for murder ought to have been a principal

charge. The learned Sessions Judge somehow or the other has

missed this crux of the matter and committed grave error.

14. It is to be noted that after re-examination of the medical

officer and bringing on record the final cause of death certificate, the

learned Judge was not only required to add or alter the charge but

15 apeal260.21.odt

consistent with the evidence on record put this important

circumstance to the accused persons in their examination under

Section 313 of the Code of Criminal Procedure statement. This

important evidence as to cause of death was not put to the accused

person in their examination under Section 313. It is seen that this

vital evidence has been made the basis of conviction and sentence of

appellant. It is to be noted that by way of precaution this Court has

recorded the statement of the appellant and put those circumstances

to him and sought his explanation at the stage of hearing of this

appeal.

15. It is seen that this error committed by the learned Session

Judge has further been compounded by the prosecution. It is seen

that prosecution has accepted the judgment and order passed by the

learned Sessions Judge without any demur. At the trial stage, learned

prosecutor incharge of the case before the Sessions Court did not

apply for alteration or addition of the charge after obtaining the final

opinion of cause of death. The learned APP submitted that the State

has neither proposed nor filed appeal against order of acquittal of

the remaining accused. Learned APP further submitted that the

State has not made any grievance with regard to the manner in

which the mater was proceeded and decided vis-a-vis charge under

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Section 302 of the IPC. The State has not filed any appeal for

enhancement of the sentence of the appellant. It is further pertinent

to note that during the pendency of this appeal no steps have been

taken to rectify the above position. This Court is therefore left with

no alternative but to decide this appeal being an appeal against

conviction and sentence for the offence under Section 304B of the

IPC.

16. Dr. Mangesh Bele (PW9) had conducted post mortem of

the body of deceased Shefali. He found following injuries on the

person of deceased Shefali:

"(i) abrasion of size 2 x 1 cm on left eyelid,

(ii) depressed contusion over right lateral side of neck of size

4 x 0.5 x 0.5 cm reddish in colour,

(iii) depressed contusion over right lateral side of neck of size 1

cm below injury no.2."

17. The viscera was preserved for chemical analysis (CA). The

opinion as to the cause of death was reserved. Postmortem report is

at Exh.71. The postmortem was conducted on 29.05.2016 at about

05:00 pm. According to PW9, the approximate time of death of the

deceased was between 24 to 36 hours prior to postmortem. The

uterus was gravid (6 to 8 weeks pregnant). The medical officer

17 apeal260.21.odt

(PW9) issued query report, which is at Exh.73. PW9 has

categorically stated in the query report that the death in question

was not due to drowning. All the injuries were antemortem in

nature. In my view, this opinion would assume great importance. As

stated above, the final opinion as to the cause of the death was not

called till the examination of all the witnesses. On 04.11.2019, that

request was made to the Medical Officer to give final opinion with

regard to the cause of death of deceased Shefali. Dr. Mangesh Bele,

Dr. Arvind Alam and Dr. Shambharkar (maiden name Vaidhya) on

going through the CA report, postmortem notes and query report,

gave final opinion as to the cause of death. According to PW9, the

cause of death was strangulation with postmortem drowning. On

the basis of this evidence, the learned Sessions Judge has recorded a

finding that deceased Shefali died unnatural homicidal death due to

bodily injuries and otherwise than under natural circumstance. The

observation of the learned Judge that deceased Shefali died

unnatural homicidal death due to bodily injuries seems to be

misconceived. On the basis of evidence on record, the finding ought

to have been that deceased Shefali died homicidal death due to

strangulation with postmortem drowning. Homicidal death cannot

be termed as unnatural homicide. The homicide means killing of a

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man by a man. Section 299 of the IPC defines culpable homicide.

Therefore, there cannot be unnatural homicidal death. It seems that

this finding as to the nature of death has been recorded to bring the

case within the ambit of Section 304B of the IPC. The learned

Judge ought to have recorded finding with regard to the nature of

death based on the oral evidence of PW9 and the postmortem

report, as well as the final opinion of cause of death. The deceased

had sustained three injuries to her neck. The injuries clearly

indicated that deceased was strangulated, killed and thereafter

thrown in the pond. Injuries were antemortem. It therefore goes

without saying that in this case the death was pure and simple

homicidal death.

18. PW9 was cross-examined on behalf of the accused

persons. Perusal of his cross-examination would show that not a

single admission has been elicited in his cross-examination to

discard the evidence of PW9 and postmortem report. Injuries found

on the dead body and condition of internal organs of the dead body

recorded in postmortem report clearly indicate that death was not

due to drowning. I have already mentioned that essential ingredients

of Section 304B (dowry death) and Section 302 (murder) are totally

different. It is therefore apparent that the charge in this case under

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Section 304B of the IPC could not have been substitute for a charge

of murder punishable under Section 302. In the facts and

circumstances, therefore, the cause of death coupled with the

evidence of medical officer is sufficient to record a concrete finding

that deceased Shefali died homicidal death due to strangulation with

postmortem drowning. In view of legal position discussed above and

the fact that death was homicidal, in the facts and circumstances of

this case, the Court can proceed to decide the case of prosecution on

merits for the offence under Section 304B of the IPC. In order to

make out offence under Section 304B the basic requirements are; (i)

demand of dowry and (ii) ill-treatment and harassment by her

husband or any relative in connection with demand of dowry. At

this stage, needless to state that due to the misconception as

mentioned above the appellant and remaining accused were not

made to face principal charge for the offence of murder. It is

apparent on the face of record that on account of this misconception

there is no whisper in the entire judgment about the charge under

Section 302 of the IPC.

19. Be that as it may, it would be necessary to appreciate the

evidence on record. PW1 is the father of deceased Shefali and PW3

is the mother of deceased Shefali. Evidence of PW1 is not a direct

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evidence on the point of the demand of dowry and harassment on

account of failure to pay the dowry. In absence of evidence of PW3

mother of deceased Shefali, evidence of PW1 could have been

termed as hearsay evidence. As per the case of the prosecution, PW3

came to know about the demand of money by the appellant and

remaining accused and due to the failure to meet the demand, the

deceased was subjected to ill-treatment and harassment. PW3 had

conveyed ill-treatment and demand of the money received by her

from deceased Shefali to PW1. Before appreciating their evidence, it

is necessary to state that initially there were five accused, in the case.

The mother of the appellant died during pendency of the trial. The

main allegation against the accused persons as can be seen from the

report at Exh.45 and the evidence of PW1 was that all the accused

insisted deceased Shefali to bring five to six lakh rupees as dowry

from her parents and on that count she was subjected to mental and

physical torture by all the accused. The learned Judge as can be seen

from his judgment observed that no direct role has been attributed

against the accused nos.2,3 and 5. It is observed that against them

there are general allegations of harassment and ill-treatment. In my

view, this observation is not factually correct. The identical role has

been attributed to all the accused in the matter of five to six lakh

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rupees and ill-treatment and harassment on that count. In my view,

learned Judge on the basis of the same evidence extended benefit to

the accused nos.2,3 and 5 and acquitted them. In my view, this is

very important aspect which would be required to be borne in mind

while appreciating the evidence of prosecution witnesses.

20. Before I appreciate the evidence of witnesses, it is

necessary to state that deceased Shefali was beloved and pampered

daughter of PW1. This fact has been admitted in evidence by PW1.

Deceased Shefali had love affair with the appellant. Deceased

Shefali eloped with appellant and secretly performed the marriage

with him. It has come on record in the evidence of PW1 that

because of this, they had grudge against the appellant and his family

members. It is pertinent to note that this marriage was performed on

05.01.2016 and Shefali died on 28 or 29.05.2016. It has come on

record that in their evidence when they came to know that deceased

Shefali married with the appellant behind the back, the family of the

PW1 severed all ties with deceased Shefali. This aspect could be

very important while appreciating the evidence of PW1 and PW3.

PW3 has stated that after 4 to 5 months of the marriage, deceased

Shefali made a phone call to her and informed her that the appellant

and his family members were asking her to bring five to six lakh

22 apeal260.21.odt

rupees from her parents for construction of upper-floor of the

house. PW3 has stated that the appellant and remaining accused

told deceased Shefali that if her parents had performed her marriage,

they would have spent five to six lakh rupees for marriage and

therefore the amount which has been saved should be given to the

accused persons. In the evidence it is stated that on 27.05.2016

PW3 called deceased Shefali to the house of her neighbor PW5-

Lalita Sonpipre. The deceased came there. She has stated that

deceased started weeping. The deceased told her that she was being

harassed for non-payment of five to six lakh rupees demanded by

the accused persons. So this is the only evidence with regard to

demand of money. She has stated that when deceased Shefali

requested her to the pay the amount, PW3 told her that since she

has married without their consent therefore they could not pay

money to her. PW3 was cross-examined. In her cross-examination,

sufficient material has been elicited to create doubt about the case of

prosecution vis-a-vis demand of money and ill-treatment on that

count. Perusal of her cross-examination would show that the

material statements in examination-in-chief have been proved to be

omission from her statement. It is seen that while recording her

statement by the police PW3 has stated that in April 2016 deceased

23 apeal260.21.odt

Shefali made a phone call to her and demanded five to six lakh

rupees for construction of upper floor of the house. Deceased

Shefali told to PW3 that if they had performed her marriage they

would have spent five to six lakh rupees. This shows that deceased

on her own demanded money. It therefore clearly indicates that

PW3 has improved her statement before the Court and stated that

deceased Shefali made this demand at the instance of the accused

persons. It is seen that first part of the story narrated by PW3 has

been found to be self-contradictory to her initial statement. It is

therefore not possible to place explicit reliance on the story narrated

by the PW3. The material improvement made by PW3 has made

evidence of PW3 doubtful.

21. In this context, it would be necessary to consider the

events occurred on 27.05.2016 when PW1 and deceased Shefali met

at the house of neighbor Lalita Sonpipre, who has been examined as

PW5. PW3 has stated that on the pretext of attending the birthday

of son of Laita Sonpipre deceased Shefali come to her house. PW3

went there when she received call from Sonpipre. She has stated that

there deceased Shefali started weeping and told her that she is being

harassed and ill-treated on account of failure to bring five to six lakh

rupees from her parents by all accused. This solitary statement has

24 apeal260.21.odt

been made the basis of the conviction of the appellant. Perusal of

the evidence of PW3 would clearly indicate that she has attributed a

specific role to all the accused persons with equal vehemence. It is to

be noted that when this evidence is found to be of general and

vague in nature against accused nos.2,3 and 5, I fail to understand

how the same evidence could diminish its general and vague

character against the appellant. In my view, the finding of the

learned Judge is self-contradictory. It cannot be sustained. On the

contrary, perusal of the evidence of PW3 would show that she had

attributed serious role to accused no.5-Pallavi, the sister-in-law of

deceased Shefali. It has come on record in evidence that after love

marriage, the appellant and deceased Shefali were staying at the

house of Pallavi. Pallavi is married to accused no.3. The appellant

and deceased Shefali, as can be seen from the evidence on record,

were provided shelter by accused no.5-Pallavi and therefore she was

in a dominant position. In the facts and circumstances, in my view,

the allegations are general and vague against the appellant as well

and therefore the learned Judge ought to have extended the benefit

to the appellant which he has extended to accused nos.2,3 and 5.

22. Evidence of PW1 is on the line of the evidence of PW3.

PW1 has stated that in the evening of 27.05.2016 PW3 had told

25 apeal260.21.odt

him about her meeting with deceased Shefali, the demand of five to

six lakh rupees and ill-treatment and harassment to her on that

count. PW1 has stated that deceased Shefali had made a phone call

to PW3 and told her that accused persons were making demand of

five to six lakh rupees, which they had saved due to her love

marriage. The statement made by PW3 on this count specifically

attributing the role to the accused persons in making demand of

money, has been proved to be an omission. In his evidence, he has

narrated the incident occurred at the house of PW5-Lalita Sonpipre.

It is seen that after this incident, PW1 neither took any action nor

contacted deceased Shefali. In the context of the chronology of

events, the case putforth with regard to the demand of money by the

appellant and the family members appears to be improbable. There

are material omissions and inconsistencies in the evidence of PW1

and PW3. Their evidence is self-contradictory. Their evidence

creates doubt about occurrence of incident as stated.

23. It would be necessary to consider the evidence of the

independent witnesses. PW5-Lalita Sonpipre's evidence would be

very relevant because so called meeting of the PW3 and deceased

Shefali took place at her house. It is the case of PW3 that when

deceased Shefali narrated the incident to her, PW5 was present

26 apeal260.21.odt

there. Perusal of evidence of PW5 does not support this fact. PW5

has stated that in her presence deceased Shefali told her mother that

accused treated her well for few days and now they are harassing her

for bringing the money. She has stated that her mother(PW3) told

deceased Shefali that since she had performed love marriage they

would not pay money to her. Her evidence is silent about weeping

of deceased Shefali at her house. Her evidence is also silent about

demand of particular sum of money and beating for dowry. In her

cross-examination, PW5 has stated that when she made enquiry

with deceased Shefali about her family life, she told her that they

were doing well. She has stated that when PW3 told deceased that if

she had performed marriage with their consent, they would have

performed her marriage well, the deceased became speechless and

started weeping. She has further stated that about the family life of

deceased, deceased Shefali told her that mother-in-law, sister-in-law

and husband are residing together. Deceased Shefali also told that

they are residing happily. PW5 has stated when this talk was going

on her neighbor Jambhule Tai came there. Perusal of evidence of

PW5 would show that on material aspect she has not corroborated

the version of PW3. It is to be noted that the main episode took

placed at the house of PW5 in her presence. In this backdrop, PW5

27 apeal260.21.odt

could be the proper witness to narrate all the facts narrated by PW3,

if incident as stated had occurred in her house. PW5 has admitted in

her cross-examination that her neighbor Jambhule Tai had also

made enquiry with deceased Shefali. The deceased told Jambhule

Tai that she was doing well. In my view, therefore, evidence of PW5

instead of supporting the case of prosecution creates the path

difficult for the prosecution. The combine reading of evidence of

PW1, PW3 and PW5 would show that their evidence is not

sufficient with regard to the demand of money as a dowry, ill-

treatment and harassment on that count. PW1 and PW3 have

categorically admitted that due to the marriage by the deceased

Shefali with the appellant they had grudge against the appellant and

his family members. It is to be noted that if the demand of dowry

and ill-treatment on that count was narrated by the deceased, then

PW1 without wasting time could have lodged the report. In my

view, this would reflect on their conduct. Their conduct in the facts

situation, appears to be contrary to the conduct of man of prudence

placed in a similarly situation.

24. The prosecution has examined three important witnesses

to seek corroboration to the case of prosecution. PW6 is one of

28 apeal260.21.odt

those witnesses. He has deposed that on 28.05.2016 when he was

sleeping in his courtyard, at about 2 to 2:30 am he woke-up for

urination and at that time, he saw two vehicles coming towards his

house from filter by-pass road. He has stated that Vijay Barapatre

was on one motor bike and accused Mangesh Kannake was driving

another motor bike and Pallavi was holding Shefali on that motor

bike. He thought that they were taking Shefali to hospital. He has

stated that after half an hour they returned from the same road but

Shefali was not seen with them. This witness seems to have been

examined to prove that in the night intervening of 27 and

28.05.2016 at 02.00 to 02.30 a.m. deceased Shefali was carried by

those accused and thrown in pond. It is pertinent to note that this

witness was under the thumb of the police. Several crimes registered

against him at the same police station. It is further pertinent to note

that his evidence is directly contradictory to the evidence of PW7

and PW8. PW7 has stated he saw Shefali on 28.05.2016 in front of

his house. It means that during the day time of 28.05.2016, he saw

deceased Shefali. He has stated that deceased Shefali was going to

her house carrying bread packet. PW8 has stated that on

28.05.2016 he saw deceased Shefali and the appellant going towards

market on motorcycle. Therefore, evidence of PW6 is contradictory

29 apeal260.21.odt

to the evidence of PW7 and PW8. If deceased Shefali was killed or

carried on the motorcycle as stated by the PW6 on 28.05.2016 at

about 02.00 to 02:30 am then there was no question of PW7 and

PW8 having seen deceased Shefali alive during day time of

28.05.2016. PW6 seems to be a got-up witness. Their evidence is

not the direct evidence on the point of ill-treatment and demand of

money.

25. There is one more circumstance which goes against the

case of the prosecution. PW12 has stated that CDR and SDR of the

phone carried by deceased Shefali was obtained. He has

categorically stated that the last location of deceased Shefali, as per

CDR, was near the bus stand. It is the case of the appellant that this

CDR has been suppressed despite making repeated requests for

production of the same by the prosecution. Perusal of the record

would show that the accused had made an application seeking

direction to the prosecution to produce the CDR and SDR. The

learned Sessions Judge rejected the said application. It has come on

record that house of the PW1, father of deceased Shefali is in the

vicinity of the bus stand. PW12 has admitted that after obtaining

the CDR and SDR of the mobile, it was handed over to PSI

Lasanthe. In my view, this aspect would assume importance in view

30 apeal260.21.odt

of the categorical admission by PW1 and PW3 that they had grudge

against the appellant and his family members. They have stated that

their reputation was spoiled due to the marriage performed by

deceased Shefali with the appellant. In my opinion, therefore, failure

to produce CDR and SDR despite repeated requests by the accused

is one more circumstance to create doubt about the prosecution case

against the appellant. No plausible explanation has been placed on

record for such non-production.

26. On minute perusal and appreciation of evidence, I am of

the opinion that the prosecution has failed to prove the charge

under Section 304B particularly with regard to the demand of any

amount as dowry and ill-treatment on that count. In the facts and

circumstances, therefore, merely because of the evidence of the

doctor as to the cause of death the appellant cannot be held guilty of

the offence punishable under Section 304B of the IPC.

27. It is to be noted that the learned Sessions Judge has not

properly considered the case of the prosecution vis-a-vis charge of

the murder under Section 302 is concern. It is seen that in the entire

judgment there is no even cursory observation about the charge of

murder of deceased Shefali and the evidence adduced by the

prosecution. In the teeth of the specific opinion as to the cause of

31 apeal260.21.odt

death i.e. strangulation with postmortem drowning, the learned

Judge ought to have amended and made charge under Section 302

as a principal charge against appellant and other accused. In that

event circumstances relevant to the point of homicidal death

brought on record would have been of some assistance to the case of

prosecution. In this case, therefore the basic two ingredients of

section 304B have not been made out namely; demand of dowry

and the ill-treatment or harassment on that count. Therefore, in my

view, the judgment and order passed by the learned Judge cannot be

sustained. The appellant would be entitled to get benefit which has

been extended to the accused nos.2,3 and 5 by the learned Sessions

Judge. The appeal deserves to be allowed. Hence, following order:

ORDER

(i) The criminal appeal is allowed.

(ii) The judgment and order of conviction and sentence

passed by the Sessions Judge, Gadchiroli dated 01.04.2021

passed in Sessions Case No.87/2016 is set aside.

(iii) Appellant - Mangesh s/o Deorao Kannake (accused

no.1) is acquitted of the offence under Section 304B of the

Indian Penal Code.

                                            32                   apeal260.21.odt


         (iv)    The appellant be set at liberty forthwith, if not required

in any other crime. Fine amount, if any, deposited by the

appellant be refunded to him.

JUDGE

Wagh