Bombay High Court
Dnyaneshwar Balu Dukare vs The State Of Maharashtra on 28 November, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:25562-DB
appeal-576.18+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.576 OF 2018
Dnyaneshwar Balu Dukare,
Age-28 years, Occu:Agri.,
R/o-Hanuman Vasti, Akola,
Tq-Pathardi, Dist-Ahmednagar.
...APPELLANT
(Ori. Accused No.1)
VERSUS
The State of Maharashtra,
Through Police Station Pathardi,
Tq-Pathardi, Dist-Ahmednagar.
...RESPONDENT
...
Mr. Joydeep Chatterji Advocate h/f. Mr. Prashant R. Nangare
Advocate for Appellant.
Ms. Uma Bhosale, A.P.P. for Respondent - State.
Mr. N.B. Narwade Advocate for assist to P.P.
...
WITH
CRIMINAL APPEAL NO.884 OF 2022
The State of Maharashtra,
Through the Police Station Officer,
Pathardi Police Station,
Dist-Ahmednagar.
...APPELLANT
VERSUS
appeal-576.18+
2
1) Dnyaneshwar S/o Balu Dukare,
Aged-28 years, Occu:Agriculture,
R/o-Hanuman Wasti, Akola,
Tq-Pathardi, Dist-Ahmednagar,
2) Balu S/o Natha Dukare,
Aged-55 years, Occu:Agriculture,
R/o-Hanuman Wasti, Akola,
Tq-Pathardi, Dist-Ahmednagar,
3) Baburao @ Mithu Balu Dukare,
Aged-26 years, Occu:Agriculture,
R/o-Hanuman Wasti, Akola,
Tq-Pathardi, Dist-Ahmednagar,
4) Smt. Nanda W/o Balu Dukare,
Aged-50 years, Occu:Household,
R/o-Hanuman Wasti, Akola,
Tq-Pathardi, Dist-Ahmednagar.
...RESPONDENTS
(Ori. Accused Nos. 1 to 4)
...
Ms. Uma Bhosale, A.P.P. for Appellant - State.
Mr. Joydeep Chatterji Advocate h/f. Mr. Prashant R. Nangare
Advocate for Respondent Nos. 1 to 4.
...
CORAM: SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE : 28th NOVEMBER, 2023
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Both these Appeals arise out of the same Judgment and
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therefore, proposed to be disposed of by this common Judgment.
2. Criminal Appeal No. 576 of 2018 is filed by original accused
No.1 - Dnyaneshwar Balu Dukare, to challenge his conviction in
Sessions Case No. 415 of 2016 dated 14 th June 2018 by the
learned Additional Sessions Judge, Ahmednagar for the offence
punishable under Section 302 of the Indian Penal Code.
3. Criminal Appeal No. 884 of 2022 is filed by the State
Government i.e. prosecution under Section 378 of the Code of
Criminal Procedure to challenge the acquittal of original accused
No.1 - Dnyaneshwar Balu Dukare from the offence punishable
under Sections 498-A, 323, 504, 506 read with Section 34 of the
Indian Penal Code and the acquittal of original accused No.2 -
Balu Natha Dukare, original accused No.3 - Baburao @ Mithu
Balu Dukare and original accused No.4 - Smt. Nanda Balu
Dukare from the offence punishable under Sections 498-A, 302,
323, 504, 506 read with Section 34 of the Indian Penal Code.
The said Appeal came to be admitted by this Court by order
dated 17th November 2022.
appeal-576.18+
4. Heard learned Advocate Mr. Joydeep Chatterji holding for
learned Advocate Mr. Nangare appearing for the appellant in
Criminal Appeal No. 576 of 2018 and respondents - original
accused in Criminal Appeal No. 884 of 2022, learned APP Ms.
Uma Bhosale appearing for the State in both the Appeals,
assisted by learned Advocate Mr. Narwade for the original
informant.
5. What is not in dispute is that deceased Savitra was the
daughter of informant PW-2 Saraswati Pandurang Jaybhaye,
resident of Hanuman Vasti, Akola, Taluka-Pathardi, District-
Ahmednagar. The houses of the informant and accused are
opposite to each other. The marriage took place on 10 th July
2016 and deceased Savitra was found dead on 2 nd September
2016 in her matrimonial home. Original accused No.1 i.e.
appellant in Criminal Appeal No. 576 of 2018 is the husband of
deceased Savitra, whereas original accused Nos.2 and 4 are the
parents of accused Nos.1 and 3. In other words, accused Nos.1
and 3 are the real brothers.
appeal-576.18+
6. PW-2 Saraswati lodged the First Information Report ( for
short "FIR") on 4th September 2016 contending that original
accused Nos.2 and 4 placed marriage proposal between
Saraswati and accused No.1 stating that since Savitra is beautiful
the marriage can be performed in simple manner. But after the
date of marriage was fixed, accused Nos. 2 to 4 stated that
unless dowry is paid, the marriage will not be performed and
therefore, Saraswati was constrained to pay Rs.41,000/- as
dowry. Thereafter accused No.1 disclosed that he has love affair
with a girl from his relation and he has plan to marry her,
however, due to the insistence by accused Nos.2 and 4 and their
relationship with the informant he has decided to marry Savitra.
The marriage was performed in the simple manner in front of the
house of the accused. After the marriage, Savitra went for
cohabitation. There was no complaint for about 10 to 12 days.
However, thereafter it was informed by Savitra to the informant,
her husband and son that one Ajinath Jadhavar, who is relative
of her husband, used to visit her matrimonial home and his visits
have increased after the marriage and on that count all the
accused used to suspect her by stating that why said Ajinath
talks with her and that there is something fishy about their
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relationship. All the accused used to state that Savitra should
give divorce to accused No.1. On that count the accused
persons used to give threats to Savitra. Thereafter Savitra had
gone to her parental house for the festival of Nagpanchami. At
that time she told to the informant and her sister, father that her
husband is having love affair with another lady. Savitra has seen
them talking in an isolated place and since then accused No.1 is
harassing her. Informant and relatives visited the house of the
accused and told that they should not harass Savitra. Two days
prior to the festival of Pola, around 11.00 a.m. informant had
found accused No.1 giving slaps and manhandling to Savitra and
at that time the informant asked accused No.1 not to assault
Savitra, then accused No.1 told that Savitra should give him
divorce. On the same day Savitra when came out of the house
under the pretext of answering nature's call, disclosed the
informant that since last three days the husband is harassing
her, he is not sleeping in the house and there is danger to her
life. On the day of Pola fesstival, the informant and her sister-in-
law were at home. Her son and husband had gone out of the
station. In the evening, they had seen Savitra going to temple
taking Naivadya and coconut. Around 10.00 p.m. the informant
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and her sister-in-law were taking dinner. At that time mother-in-
law of Savitra came to the house of the informant and then went
back around 10.30 p.m. In the midnight, mother-in-law of
Savitra came to the house of the informant and asked for the
milk of she-goat, which was given by the informant and she
again slept. On the next day i.e. 2nd September 2016 around
6.00 a.m. when informant got up, she found that all the accused
persons were sitting in front of the room of their house by
placing their hands to their heads. Informant asked them as to
what had happened. Accused No.4 told her that Savitra has
become unconscious and she should see what has happened.
Informant went inside the room in the house of accused. She
found Savitra in prone condition on carpet. Her hairs were
disorganized and froth was coming out of the mouth, her hands
and legs had become stiff. When informant tried to woke her up,
informant could realize that Savitra was dead and therefore
informant started crying loudly. Neighbouring relatives arrived
and then suggestion was given that Savitra should be taken to
the hospital. Savitra was shifted to Government hospital in a
Jeep where, after examining, doctor declared her dead.
Thereafter the dead body was taken to Ghati Hospital at
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Aurangabad around 3.00 p.m. The postmortem could be
performed only on 3rd September 2016 and thereafter the
funeral took place. As informant was in grief, she lodged the
report on 4th September 2016.
7. After the FIR was lodged and crime was registered,
investigation was undertaken. Prior to that accidental death was
registered on the basis of Medico-legal Case (MLC) given by the
doctor. Inquest panchnama was prepared and dead body was
sent for postmortem. Even the panchnama of the spot was got
executed on 2nd September 2016 during the inquiry under
Section 174 of the Code of Criminal Procedure. After the offence
was registered, the statements of the witnesses were recorded.
Seized articles and samples were sent for investigation by the
Chemical Analyzer. Accused came to be arrested and they were
medically examined. While in custody, accused No.1 gave
memorandum and discovered a pillow which he had concealed in
the same room under the articles of decoration. After completion
of investigation, charge-sheet was filed.
8. After committal of the case, the prosecution conducted the
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trial. In all eight witnesses have been examined to bring home
the guilt of the accused and after considering the evidence on
record and hearing both the sides, accused No.1 came to be
convicted as aforesaid and accused Nos. 2 to 4 came to be
acquitted as aforesaid. Hence both these Appeals.
9. It has been vehemently submitted on behalf of the
appellant - original accused No.1 that the learned trial Judge has
not appreciated the evidence properly. On the same set of facts
the learned trial Judge has acquitted accused Nos.2 to 4 and
therefore the conviction of accused No.1 is not at all justified.
Similar treatment ought to have been given to accused No.1. He
cannot be differently considered only on the ground that he was
the husband of the deceased. It appears from the testimony of
the informant as well as her FIR itself that accused No.1 was
posing them (as alleged by them) that accused No. 1 was having
love affair with some other lady and this was disclosed by him
even prior to the marriage between deceased and accused No.1.
Still it appears that the marriage has been performed. In fact
there was suggestion to PW-2 Saraswati which was initially
admitted but later on corrected that there was love affair
appeal-576.18+
between deceased and accused No.1 and therefore, the marriage
was performed and this fact stood supported in the cross-
examination of PW-4 Shankar, who is the brother of the
deceased. If this fact is to be considered, then there is absolutely
no substance in the statement made now that accused No.1 was
loving some other lady and wanted to marry her and for that
purpose he was harassing deceased. There is no evidence to
support the statement of these two witnesses i.e. PW-2
Saraswati and PW-4 Shankar that the accused persons had
demanded dowry amount of Rs.41,000/- and it was paid prior to
the marriage. In fact the suggestions have been admitted by
these two witnesses that financial condition of the accused is
much better than the financial condition of the informant and
only due to love affair between deceased and accused No.1 the
marriage was performed and the expenses were incurred by the
accused persons. There is delay in lodging the FIR. It appears
that PW-3 Dr. Manisha Hange, who was the medical officer in
Sub-District Hospital, Pathardi where Savitra was taken
immediately and was examined around 7.10 a.m. of 2 nd
September 2016, had declared her dead, yet the FIR has been
lodged around 17.58 hours of 4 th September 2016. The said
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delay has not been properly explained. It has been stated by
PW-3 Dr. Manisha as well as there is document on record i.e.
Exhibit-55 dated 2nd September 2016 given by PW-3 Dr. Manisha
stating that the relatives were insisting that the postmortem of
Savitra should be performed at Aurangabad. Nobody is
explaining as to why there should be such insistence. The
postmortem has been done by PW-5 Dr. Ganesh Niturkar
between 8.30 a.m. to 10.00 a.m. on 3rd September 2016.
According to him, the probable cause of death was "asphyxial
death due to smothering". PW-5 Dr. Ganesh admits in his cross-
examination that smothering is one type of asphyxia, in rare
condition in epilepsy, smothering may occur. He further admits
that if the attack of epilepsy is suffered in the sleeping condition
of the person, in that case there is possibility of smothering, if
body is in reverse condition. He also admitted that there is
possibility of occurring suffocation in heart disease.
10. Learned Advocate for the appellant has placed reliance
upon the decision in Subramaniam vs. State of Tamil Nadu
and another, 2009 AIR (SCW) 3550: 2009 (14) SCC 415,
wherein the difference between suffocation by smothering and
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asphyxia by smothering has been explained. It has been
observed that the High Court had erred in considering usual
symptoms that would be available in case of death due to
asphyxia by smothering. Corresponding absence of evidence was
not considered. A reference was taken from Modi's Medical
Jurisprudence and Toxicology wherein the learned author defined
the application of the term 'suffocation' to that kind of death that
results from the exclusion of air from the lungs, by means other
than that of the compression of the neck. Further taking note of
the external appearances and internal appearances in the
postmortem, it has been observed that external appearances
may appear due to cause producing suffocation or to asphyxia. It
is also observed that in cause producing suffocation, as noted, in
homicidal smothering, affected by the forcible application of the
hand over the mouth and the nostrils, bruises and abrasions are
often found on the lips and on the angles of the mouth, and
alongside the nostrils. Learned Advocate representing original
accused No. 1 has therefore, submitted that the case in hand is
the result of suffocation / asphyxia due to epilepsy attack in
sleeping condition to Savitra. Learned trial Judge, therefore,
erred in holding that it was homicidal death. He further
appeal-576.18+
submitted that the alleged discovery of pillow cannot be said to
be admissible and even if it is admitted, then it has not been
proved by the prosecution that the said suffocation was caused
with the help of said pillow. Merely because accused No.1 being
husband, could not have been convicted even if it would have
been proved that he was with Savitra at night time. In his
statement under Section 313 of the Code of Criminal Procedure,
accused No.1 has stated that since he was supposed to water
the field, he was not in the house at the relevant time. Learned
Advocate for original accused No.1 also submitted that the
alleged injuries on the person of accused No.1 cannot be
considered as PW-3 Dr. Manisha, who examined him also, has
stated the age of the injuries. Those injuries cannot be
connected to the alleged incident in the intervening night of 1 st
September 2016 to 2nd September 2016 and therefore, the
Appeal deserves to be allowed by setting aside the conviction
awarded to the appellant - original accused No. 1.
11. Learned APP Ms. Bhosale well assisted by learned Advocate
Mr. Narwade for the informant, strongly submitted that all the
accused persons were residing in the same house. The death of
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Savitra has taken place in the intervening night. None of the
accused have taken the plea of alibi and have not proved it by
way of adducing cogent evidence. Though informant says that
accused No.1 had disclosed about his alleged affair with another
lady prior to the marriage between deceased and accused No.1,
yet he is not denying the fact that he is married to deceased.
The harassment was on account of giving divorce but it has been
misinterpreted by the learned trial Judge. Even the demand of
dowry was illegal. It has been categorically stated by the
informant and her son that an amount of Rs.41,000/- was paid
as dowry. Informant was residing opposite to the accused and
therefore, her presence in the house of the accused in the
morning hours when she found that all the accused persons were
sitting in front of their house in concern, appears to be natural.
Her testimony is further supported by PW-6 Vimal Jadhavar who
resides in the neighbour-hood. Accused No.1 is not explaining
the injuries to his person, as the prosecution has done its duty
by examining PW-3 Dr. Manisha, who had clinically examined
him. Under which circumstances he had received those injuries
was for him to explain, as it was within his knowledge as to how
he received those injuries. The alleged delay is not at all fatal
appeal-576.18+
when immediately after Savitra was declared dead, her brother
had raised objection for postmortem to be performed at Sub-
District Hospital, Pathardi. PW-3 Dr. Manisha has written the said
letter Exhibit-55. It is not only on the point that the relatives had
expressed suspicion over death of Savitra but she also found
that the postmortem was complicated and requires experts
opinion than her. Testimony of PW-5 Dr. Ganesh Niturkar would
show that how his team of in all four doctors, after noticing the
injuries on the person of the deceased, came to the conclusion
that the probable cause of death is 'asphyxial death due to
smothering' and he clearly opines that it was homicidal in
nature. He had noted five external injuries, which were around
mouth and face. No doubt a pillow has been discovered which is
stated to be the weapon used for smothering, yet the injuries
which were noted by PW-3 Dr. Manisha and PW-5 Dr. Ganesh are
important and therefore, the learned trial Judge was justified in
holding the accused No.1 responsible for the death, however,
erred in acquitting accused Nos.2 to 4. They acted in concert and
therefore, also ought to have been held responsible for the death
of Savitra.
appeal-576.18+
12. In respect of Appeal challenging the acquittal of accused
Nos.2 to 4, learned Advocate representing them supported the
reasons given by the learned trial Judge to that extent. He
submitted that the ingredients of Section 498-A of the Indian
Penal Code with Section 323, 504, 506 of the Indian Penal Code
were absolutely not proved. Even as regards Section 302 of the
Indian Penal Code as against accused Nos.2 to 4 is concerned, it
has not been positively brought on record by the prosecution
that at night time these three accused persons had gone in the
room occupied by the deceased and then the alleged overt-act is
done. Therefore, the acquittal of accused No.1 from other
Sections and accused Nos.2 to 4 from all the Sections is
justified.
13. At the outset it is required to be seen, as to whether the
death of Savitra was homicidal or not. It is not in dispute that
she died in the house of the accused persons. In his statement
under Section 313 of the Code of Criminal Procedure, accused
No.1 has stated that he would give written statement. His
written statement is at Exhibit-97. In respect of the incident, he
has stated that his parents had slept in the old house which was
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near the cattle-shed and as the electricity would be available at
night time, he had gone to give water to the sugarcane crop in
the field. However, to this statement in respect of his own plea of
alibi, he has not led any positive evidence. No background has
also been laid in the cross-examination of PW-2 Saraswati, PW-4
Shankar or PW-6 Vimal. He has not examined the electricity
persons to prove that the electricity was available or comes at
night time only where his field is situated. He has not produced
7 X 12 extract to prove that sugarcane crop was taken in his
field in the relevant year. He has not entered the witness box nor
he has asked the other accused persons to enter the witness box
and state about his absence from the house. The accused
persons have not given reason or explained under which
circumstance Savitra's death has occurred, who had noticed the
condition of Savitra first etc. Thus, it is certain that there is no
proper explanation by the accused persons as to how Savitra's
death has occurred. Whether accused Nos.2 to 4 were bound to
explain those circumstances is then required to be seen
separately, but certainly the burden would be on accused No.1,
who is husband of the deceased. It is presumed that the
husband and wife would be in one room at night time unless it is
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proved that either of them was away for some reason. The plea
of alibi has to be proved by the accused persons by leading
cogent evidence or even by taking help of the prosecution
evidence. Here, as aforesaid, there is no suggestion also to the
prosecution witnesses regarding the absence of accused No.1
from the house and as aforesaid, there is no positive evidence
led by accused No.1 to prove his plea of alibi. It is not much in
dispute that around 6.00 a.m. of 2nd September 2016, PW-2
Saraswatibai made inquiry with the accused persons and then
entered in the room where Savitra was lying. Her testimony
stood supported by PW-6 Vimal. PW-6 Vimal had entered the
house of accused in the morning after she heard shouts of PW-2
Saraswati and found Savitra lying on the carpet of the floor.
14. PW-2 Saraswati and PW-4 Shankar have stated that the
people gathered decided to shift Savitra to hospital and then
Savitra was taken to Sub-District Hospital, Pathardi where she
was examined by PW-3 Dr. Manisha, around 7.10 a.m. of 2 nd
September 2016. PW-3 Dr. Manisha has stated that Savitra was
brought dead in the hospital and she confirmed the same. It
appears that she had not noted the injuries on the dead body
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but vide Exhibit-55 dated 2nd September 2016, she gave letter to
Departmental Head of Forensic Science that since objection has
been raised by the relatives of Savitra regarding suspicious
death, as well as that postmortem would involve complications
and therefore she was of the opinion that it should be done by
the Forensic expert, the postmortem should be done accordingly.
Along with the said letter, it appears that the dead body was
taken to Ghati Hospital, Aurangabad wherein, under the
supervision of four experts including PW-5 Dr. Ganesh Niturkar,
the postmortem has been carried out. During the postmortem,
following external injuries were noted:-
"1. Abraded contusion of size 0.8 cm x 0.6 cm, irregular,
present over nose, in midline, upper 3 rd, reddish brown,
contusion confirmed on cut section.
2. Abraded contusion of size 0.5 cm x 0.4 cm, irregular
present over right nasal ala, reddish brown, contusion
confirmed on cut section.
3. Abraded contusion of size 2 cm x 1.5 cm, irregular, present
over zygomatic region of face on right side, reddish brown,
contusion confirmed on cut section.
4. Abraded contusion present over the medial aspect of upper
1/3rd of right thigh over an area of size 6 cm x 0.5 cm,
reddish brown, contusion confirmed on cut section.
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5. Abraded contusion present over the medial aspect of upper
1/3rd of left thigh over an area of size 5 cm x 0.5 cm, reddish
brown, contusion confirmed on cut section."
15. PW-5 Dr. Ganesh Niturkar stated that all the external
injuries were ante mortem. There was no fracture of thyroid
bone and hyoid bone. The brain was intact and congested. Brain
grossly congested and oedematous, on cut section - pinpoint
sized petechial hemorrhages present within the white matter at
places. PW-5 Dr. Ganesh has stated that on the basis of his
findings during postmortem and environmental condition, the
death could have caused within 18 to 36 hours before the
commencement of postmortem examination and the cause of
death was 'asphyxial death due to smothering'. It has been
harped upon that no external injuries were mentioned in the
inquest panchnama which has been admitted by him and on the
basis of this, it was tried to be submitted that both the
documents i.e. inquest panchnama and the postmortem report
do not support each other. To this, we are of the opinion that
inquest panchnama is always done by rustic persons i.e. who are
not experts and the postmortem is always done by the expert
persons. The external injuries of even small dimensions can be
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noted by the experts and not by the rustic persons. PW-5 Dr.
Ganesh has categorically denied that all the injuries mentioned
in Column No. 17 were on the basis of cut sections. It has been
volunteered by him that the cut sections were given for
confirmation which would be after the injuries were noted and
not before that. If we consider the position of the external
injuries, then those were around nose, nasal area, face. There
was also external injury to both the thighs. Therefore, when
there were such injuries, then it cannot be said that the
smothering was result of any other cause. The distinction that
has been drawn on the basis of noted book on Medical
Jurisprudence by Modi in Subramaniam vs. State of Tamil
Nadu and another (supra) is binding on this Court, but in the
said case itself on the basis of same book, the distinction has
been drawn when there are bruises and abrasions in or around
nasal area, lips, mouth etc. In specific words, therefore, PW-5
Dr. Ganesh has stated that the death of Savitra was homicidal in
nature. It is also to be noted that this expert has admitted that
in rare condition in epilepsy, smothering may occur and if the
attack of epilepsy is suffered during sleeping condition then
there is possibility of smothering if the body is in prone
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condition. A suggestion was tried to be given to PW-2 Saraswati
that Savitra was suffering from epileptic attacks. She has denied
the said suggestion. There is absolutely no evidence on record
adduced by the accused to show that Savitra was suffering from
epilepsy. If the epilepsy attack was there at the intervening
night, then how the accused persons came to know about it and
whether they had made any attempt to take Savitra to hospital,
would be the consequential questions, to which we do not find
any answer. It is not suggested to PW-2 Saraswati and PW-4
Shankar that Savitra was under medical treatment of a doctor
for the illness of epilepsy. Since when she was suffering, is also
not suggested. Even PW-5 Dr. Ganesh says that in rare condition
smothering may occur in epilepsy patient. But what was that
rare condition has not been suggested or extracted so as to
bring it on record that similar condition existed. Under the said
circumstance, the accused persons have failed to take out the
case from homicidal death to natural. From the evidence that is
adduced by the prosecution, there is sufficient evidence on
record to support the prosecution case that death of Savitra was
homicidal in nature.
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16. Now turning towards the allegations, we would like to
consider the acquittal of the accused persons first. It is to be
noted that according to PW-2 Saraswati and PW-4 Shankar, an
amount of Rs.41,000/- was given as dowry though it was not
agreed. Here there was no attempt by the prosecution to have
charge settled against all the accused under the Dowry
Prohibition Act. Therefore, as regards the said demand and
payment of Rs.41,000/- is concerned, which was prior to the
marriage, it cannot be taken as cruelty as contemplated under
Section 498-A of the Indian Penal Code because the said amount
was demanded and paid prior to the marriage and there was no
allegation and proof in respect of harassment for the non-
fulfillment of the alleged illegal demand of dowry. The cruelty has
been tried to be posed on two counts, one is allegation in respect
of raising finger at the chastity on account of alleged frequent
visits of one Ajinath to the house of the accused and he talking
to the deceased, and second is the alleged love affair between
accused No.1 and another lady. As regards the point of raising
finger at chastity is concerned, the cross-examination of PW-2
Saraswati would show that Ajinath is not only the cousin brother
of accused No.1 but he is also grand-son of PW-2 Saraswati.
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That means said Ajinath is related from both sides. Under the
said circumstance, it is hard to believe that such allegations
would have been levelled. PW-2 Saraswati clearly admits that
accused No.1 and her daughter were having conversation and
love affair, but thereafter she corrected herself by saying that
the said love developed after marriage. If this is so, then
question of harassing her daughter will not arise. She has also
admitted that her daughter was happy at the time of Pola
festival. If whatever she has stated was true then, when Savitra
had told that she has fear to her life why Saraswati had not
brought her to parental house, would be a question. In her FIR
Exhibit-30, Saraswati has stated that two days prior to Pola
festival, Savitra had told that her husband was harassing since
three days prior to that day. On what count, has not been stated
by her. As regards the alleged love affair between accused No.1
and a lady from his relation is concerned, in the FIR as well as in
the examination-in-chief itself PW-2 Saraswati has stated that
said fact was disclosed by accused No.1 prior to the marriage. If
that disclosure was so made, then why the marriage was
performed. It has ruined the lives of three persons then. In the
cross-examination, PW-6 Vimal has admitted that there was love
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affair between Savitra and accused No.1 and therefore, with the
consent of the families, their marriage was performed. Under
this circumstance when there was already love-affair between
accused No.1 and deceased, it was not expected that the such
allegations would have been levelled after death of deceased.
Even if for the sake of arguments it is then accepted that
deceased had seen accused No.1 talking to the said lady in an
isolated place, what she had conveyed to her mother was that
accused No.1 was harassing her. The nature of harassment has
not been stated. It is also tried to be said that the accused
persons were telling that Savitra should give divorce to accused
No.1. We will have to go by law and it cannot be only at the
behest of wife the divorce can be granted. Even husband can
approach for the divorce. None of the prosecution witnesses
have then stated that taking seriousness of the dispute into
account some respectable persons had meeting and they tried to
resolve the dispute, which is the way usually taken in rural
areas. Therefore, there was no concrete evidence adduced by
the prosecution to prove the ingredients of Section 498-A, 323,
504, 506 read with Section 34 of the Indian Penal Code and
appeal-576.18+
therefore, the acquittal of the accused persons in those offences
is justified. We confirm the same.
17. Turning to the charges of murder, the prosecution has
examined PW-1 Jagannath, who is panch to the spot
panchnama. He has proved the spot panchnama and seizure of
articles from the said place. Though he has been cross-examined
at length, there is nothing which will discard the contents of the
spot panchnama Exhibit-28. PW-7 Police Constable Yashwant
Thombare is the carrier who has taken the seized articles to the
Chemical Analyzer. C.A. reports are neither supporting
prosecution nor to the accused. The only thing is that the
samples had not revealed any poison. As aforesaid, the death
was homicidal i.e. by smothering. The prosecution story does not
show that the smothering was by in all four persons or it was
necessary for the involvement of four persons that could be the
conclusion that can be arrived at on the basis of postmortem
report. If we consider the spot panchnama, then the house
consists of three rooms and in the cross-examination of PW-2
Saraswati, it has come on record that one room was exclusively
for the deceased and accused No.1. Since the incident has taken
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place in the intervening night and accused No.1 failed to prove
the plea of alibi, we take help of Section 106 of the Indian
Evidence Act. It was for accused No.1 to prove or explain the
circumstances in which his wife was found dead in their room.
18. It was tried to be harped upon by the appellant - accused
No.1 that there is delay in lodging the FIR. We are not convinced
with the ground for the simple reason that even as per the
testimony of PW-3 Dr. Manisha who proved Exhibit-55 and also
PW-4 Shankar i.e. brother of the deceased who proved
Exhibit-62, who had given said complaint Exhibit-62 to PSI,
Pathardi, at 3.50 p.m. on 2nd September 2016 itself. According to
both these letters i.e. Exhibit-55 and 62, suspicion over the
death of Savitra was raised, then only the dead body was taken
to Aurangabad where the postmortem was performed between
8.30 a.m. to 10.00 a.m. on 3 rd September 2016 and in the FIR
as well as testimony of PW-2 Saraswati and PW-4 Shankar, it has
come on record that when the dead body was received after
postmortem, then funeral was performed. The ashes were
collected in the morning of 4th September 2016 and then in the
afternoon the FIR has been recorded. We can understand that
appeal-576.18+
the girl i.e. deceased Savitra was only 18 years of age whose
marriage was performed on 10th July 2016 and within merely two
months she has been murdered. It would be big shock to the
parents and the brother. Taking into consideration the above said
events, we do not find that there is any delay in lodging the FIR.
Whatever delay is there, it has been properly explained. No
benefit can be given to the accused.
19. When accused No.1 was arrested on 4 th September 2016,
he was subjected to medical examination and at that time three
injuries were noted on his person. It has been stated by PW-3
Dr. Manisha that injury No.1 i.e. scratch abrasions 3 in number
over dorsum of left hand was of more than 24 hours and within
five days of the incident. Age of injury No.2 i.e. contusion over
right palm on hypotghenar eminence was more than 24 hours
and age of injury No.3 i.e. abrasion with scab fallen off over chin
left side was more than four days. According to her the probable
weapon of injury Nos.1 and 3 could be sharp and rough edged
object and injury No.2 could be due to hard and blunt object. We
cannot co-relate these injuries and it cannot be said that these
injuries were in the intervening night of 1 st September 2016 to
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2nd September 2016, as involvement of sharp edged weapon is
not here.
20. The prosecution has also come with the case that accused
No.1 had discovered a pillow at the time of execution of spot
panchnama and the alleged memorandum Exhibit-84 with
panchnama appeared to be in the form of confessional
statement, which cannot be said to be admissible in nature from
any angle.
21. Thus, the re-appreciation and scrutiny of the evidence
would show that accused No.1, who is the husband of deceased
Savitra, has failed to explain the circumstances in which his wife
was found dead in their room in the intervening night, when in
fact he ought to have knowledge about the same as he has failed
to prove the plea of alibi. As regards the motive is concerned, at
many times the motive is buried in the heart of the accused. We
cannot insist proof of motive in each and every case, especially
when it is between husband and wife. What happened between
them in the night time before they went to bed is well within
their knowledge and therefore, we hold that the prosecution had
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proved the charge for the offence punishable under Section 302
of the Indian Penal Code. The conviction of original accused No.1
by the learned trial Judge is justified and there is no error or
illegality in the same. The trial Court was justified in acquitting
accused Nos.2 to 4 from the offence punishable under Section
302 read with Section 34 of the Indian Penal Code also as their
involvement is not clearly coming on record. As a result of which
there is no merit in both the Appeals and the same deserve to be
dismissed.
22. Accordingly, both the Appeals are dismissed.
[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/DEC23
