Bombay High Court
Nandkishor Trimbak Kushare vs The State Of Maharashtra on 19 November, 2025
2025:BHC-AS:49786
Shubhada S Kadam 901-Apeal-705-1998.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 705 of 1998
1. Nandkishor Trimbak Kushare
Aged - 24 years.
2. Trimbak Baburao Kushare,
Aged - 55 years.
3. Sitabai Trimbak Kushare
All R/o. Nandur (Kd), Tal. Niphad.
District- Nashik. ... Appellants
versus
The State of Maharashtra through P.S.I.
Niphad Police Station,
Niphad, Dist-Nashik. .... Respondent/s
Mr. Sushant Mhatre, Appointed Advocate for the Appellants.
Mr. C. D. Mali, APP for Respondent-State.
CORAM : R. M. JOSHI, J.
RESERVED ON : 14th NOVEMBER, 2025.
PRONOUNCED ON : 19th NOVEMBER, 2025.
Judgment :
1. Appellants/original accused being aggrieved by the judgment
and order dated 4th September 1998 passed in Session Case 178 of 1997,
whereby they are convicted for the offences punishable under Section 306
and 304-B read with Section 34 of the Indian Penal Code 1860 (for short
"IPC") and sentenced to suffer rigorous imprisonment for seven(7) years
with fine of Rs.1,000/-. The appellants/accused are however, acquitted for
Digitally
signed by
SHUBHADA
SHUBHADA SHANKAR
SHANKAR KADAM
KADAM Date:
the offences punishable under Sections 498-A with Section 34 of the IPC.
2025.11.19
18:18:01
+0530
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2. Dattu, brother of Jijabai, deceased, lodged FIR stating that
marriage of his sister Jijabai was performed with accused No.1 on 30 th
April 1997. It is his contention that at the time of marriage, there was
demand of dowry of Rs.21,000/- and owing to the disputes with regard to
the quantum of dowry, the marriage was cancelled. The said marriage,
however, was refixed after mediation. It is his further contention that at
the time of engagement ceremony, he had paid Rs.21,000/- as dowry to
the accused persons. He has further stated before the police that after the
marriage Jijabai started residing in her matrimonial home along with her
husband, parents- in- law and two brothers-in-law. He has further stated
that on 2-4 occasions after marriage, Jijabai had told her father about
accused demanding Rs.25,000/- for the purpose of digging bore well in
their agricultural field and father told her about the said payment being
made after Diwali. He further claimed occurrence of an incident at the time
of Satyanarayan Puja wherein accused No.1 had refused to accept the
cap and uparna offered to him and left the house angrily.
3. According to him, on 9th September 1997, Bhimrao came to the
home of the informant intimating about the incident of snake bite to Jijabai
having been caused and that she was taken to Vavi (Thushi) Village for
the treatment of snake bite. When the informant along with others went to
the said village, they found that Jijabai being already shifted to firstly to
P.H.C. Palkhed and thereafter to the civil hospital at Niphad. It is his
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further statement that when they went to the hospital-Jijabai was not in a
position to speak. She died on 11th September 1997 and offence came to
be registered against the accused person vide Crime No.97 of 1997. The
investigation into the said crime was conducted and on conclusion of
investigation, charge-sheet was filed against the accused.
4. Charge was framed against the accused vide Exhibit-11..
Since, the accused denied the charges against them, the prosecution led
evidence of 10 witnesses in order to bring home guilt of the accused. The
prosecution examined Dattu (PW1), brother of the deceased and
informant. His testimony is sought to be corroborated by evidence of
Rayaji (PW3), father of the deceased. In order to prove the recoveries,
prosecution examined Raosaheb, (PW2), panch witness. Latabai (PW6)
was examined in order to prove the ill-treatment caused by the accused to
deceased prior to her act of commission of suicide. Apart from this,
prosecution led evidence of Manik (PW4), the relative of the father of the
accused, who turned hostile. Witness-Shivpuri Baba (PW5) was examined
at Exhibit-31. This witness also did not support the case of prosecution.
Prosecution led evidence of police Head Constable - Jadhav in order to
prove the recovery of pesticides from the stable in the house of the
deceased. Investigation Officer was examined as PW-9. Prosecution has
led stress on the evidence of Medical Officer-Dr. Gajaria who was
examined before the Trial Court. According to him, when Jijabai was
brought to the hospital, initially she gave history of snake bite. He,
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however, claims that since the symptoms of snake bite were not found, he
persuaded her to give the correct history. Thereupon, she gave history of
consumption of poison. It is opinion of the Medical Officer that the
deceased died due to organophosphorus poison consumption.
5. Learned Trial Court found the evidence led by the prosecution
sufficient to bring home the guilt of the accused Nos.1 to 3. Accused
Nos.4 and 5 were acquitted from all the charges. Whereas, accused No.1
to 3 though were acquitted for the offence punishable under 498-A read
with Section 34 of the IPC but were convicted for the offences punishable
under Section 306 and 304-B of IPC.
6. At the outset, learned counsel for the appellants submits that at
all time, the burden to prove the guilt of the accused beyond shadow of
reasonable doubt, lies upon the prosecution. It is his submission that on
the basis of evidence on record, it cannot be said that the prosecution has
succeeded in proving the guilt of the accused. It is his submission that the
testimony of the relatives of the deceased i.e. Dattu (PW1) and Rayaji
(PW3) is not consistent and in order to prove the allegations with regard to
the harassment caused to the deceased before her death, there ought to
have been consistent testimony of these two witnesses. According to
him, the entire case of the prosecution rests upon the alleged demand of
Rs.25,000/- by the accused for the purpose of digging a bore-well in their
agricultural field and by drawing attention of the Court to the evidence of
Dattu (PW1) and Rayaji (PW3), he contends that there existed a well in
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the agricultural field of the accused with standing crop therein. It is thus
his submission that unless the prosecution proves that the well had no
water, through independent evidence, the said testimony of these two
witnesses cannot become basis for the conviction of the accused. It is his
further submission that though allegations are made with regard to the
demand of dowry at the time of the marriage, the findings recorded by the
Trial Court, records that the said allegations have no relevance. It is his
submission that even otherwise the evidence of Dattu (PW1) and Rayaji
(PW3) differs on material aspect of payment of Rs.21,000/- at the time of
engagement ceremony.
7. It is his further submission that the evidence of prosecution
does not prove conclusively that this is a case of conscious consumption
of any poisonous substance in order to commit suicide. According to him,
this could even be a case of accidental consumption of poison which
would not be sufficient to prove offence under Section 306 of IPC. It is his
submission that in any case, the evidence on record clearly indicates that
this could be a case of death of the deceased on account of a snake bite
and once such possibility is created, the benefit thereof must go to
accused. In this regard, he drew attention of the Court to the evidence of
Shivpuri Baba (PW5), who has stated about deceased disclosing him
about snake bite. It is his submission that though this witness is declared
hostile and was cross-examined by the prosecution, the evidence of this
witness to the extend of the history being given by the deceased with
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regard to the snake bite cannot be discarded. It is his further submission
that the said testimony gets further support from the evidence on record,
more particularly, evidence of doctor(PW8). It is his submission that the
doctor has also accepted the fact that the deceased herself gave history
to the doctor referring to the snake bite. He argued that though the doctor
claims that on his persuasion, she gave history of consumption of poison
substance, he is not in a position to say as to when such history was
given and as to when the new/fresh treatment started. In this regard, he
drew attention of the Court to the cross-examination of the doctor on the
point of conducting of postmortem notes by two doctors and except for the
witness, the other doctor not signing the same. He further drew attention
of the Court to the suggestion made to the witness that since the doctor
was not agreeable to the finding, he did not sign the same. It is further
suggested that since there was negligence in the treatment of the patient,
opinion was expressed with regard to the death of the deceased on
account of consumption of poisonous substance. According to his, the
administration of the anti-venom is not in dispute, which could result into
indicating the death on account of poisonous substance being consumed.
It is his submission that in any case, it was the burden upon the
prosecution to show that the deceased consumed the poisonous
substance in order to commit suicide. It is his submission that even from
the conduct of the deceased herself while disclosing the history to
Shivpuri Baba (PW5) as well as the Medical Officer, it cannot be said that
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it is a case of consumption of a poisonous substance. He drew attention
of the Court to the evidence of the panch witness who does not support
recovery of the bottles containing pesticides. It is his submission that
though police head constable - Jadhav is examined in order to prove the
said recovery, in the cross-examination, he admits there being no
reference in the panchanama regarding sealing of the said bottle. He
drew attention of the Court to the evidence of carrier of muddemal, who in
no uncertain terms, states about he carrying no other muddemal or
articles except four bottles into boxes.
8. To support his submissions, he placed reliance on following
judgments :
1. Charan Singh alias Charanjit Singh versus State of
Uttarakhand (2024) 13 SCC 649.
2. Karan Singh versus State of Haryana 2025 SCC OnLine SC
214.
Relying upon these judgments, it is sought to be argued that
for the purpose of convicting an accused for an offence punishable under
Section 304-B of the IPC, the prosecution must prove that just before the
unnatural death, deceased is subjected to harassment/cruelty and then
only the presumption under Section 304-B would get attracted. It is his
submission that there is complete absence of evidence with regard to the
harassment caused to the deceased just before the death. It is his
submission that the evidence of Latabai-PW6 is not reliable as she does
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not intimate about the disclosure made to the deceased to her parents. It
is his submission that even otherwise the testimony of this witness is not
relevant since it is hearsay evidence. On these amongst other
submissions, he claims that guilt of the accused is not proved beyond
doubt and hence, they be acquitted.
9. Learned APP, on the other hand, supported the impugned
judgment and order. It is his submission that the prosecution was
required to prove that the accused had caused harassment to the
deceased on account of illegal demand and that there is evidence to
indicate that even before the actual performance of marriage, there was
dispute between the parties with regard to the payment of amount of
dowry. It is his submission that the evidence of Dattu (PW1) and Rayaji
(PW3) proves these facts. It is further argued that evidence of Shivpuri
Baba (PW5) indicates that the deceased was not able to speak when she
was brought to him and hence, the question of she making any statement
with regard to the snake bite does not arise and it must be held that
history of snake bite is given by the accused. According to him, evidence
of Dr. Gujariya (PW8) is more than sufficient to conclusively prove that
this is a case of consumption of poisonous substance and not death on
account of snake bite. He further argued that the medical officer had no
reason to make any statement to the effect that the deceased gave history
of consumption of poisonous substance. It is his submission that the said
evidence of Medical Officer gets corroborated by CA Report which
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indicates that the death is on account of consumption of
organophosphorus which is a poisonous substance/pesticide. He further
claimed that the evidence of Latabai supports the case sought to be made
out by Dattu (PW1) and Rayaji (PW3) with regard to the harassment
caused by the accused to the deceased prior to her death. It is his
submission that on the basis of evidence on record, the learned Trial
Court has rightly recorded conviction against the accused and this is not
a fit case to acquit them.
10. At the outset, it needs to be recorded that there is no dispute
between the parties with regard to the fact that Jijabai married to the
accused No. on 30th April 1997. Further there is no denial of the fact that
on 9th September 1997, the deceased was taken to Shivpuri Baba(PW5)
for the sake of treatment of snake bite. She was thereafter taken to
Palkhed and since the medical treatment was not available there, she
was admitted in civil hospital at Niphad. She was in hospital from
9th September 1997 till her death at about 3.00 p.m. on 11 th September
1997. There is further no dispute about the fact that initially deceased
gave history even to the doctor about snake bite and that she was treated
for the same.
11. Since the prosecution has sought to make out the case against
the accused that due to the harassment caused by them to the deceased,
she consumed pesticide/poisonous substance in order to commit suicide,
the burden to prove the same would solely rest upon the prosecution. In
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this regard, evidence of Dattu (PW1) and Rayaji (PW3). who are brother
and father respectively of the deceased assumes importance. Both these
witnesses claim about the dispute occurred prior to the marriage on
account of demand of dowry by the accused. In this regard, however, it is
pertinent to note that though Dattu (PW1) claims that at the time of
engagement ceremony, he paid Rs.21,000/- to the accused, Rayaji (PW3)
on the other hand does not state anything to that effect. On the contrary,
during the cross-examination, he specifically admits that except for
exchange of clothes, nothing was given by either side on that occasion.
With regard to the said incident, the testimony of Manik (PW4) cannot be
ignored. Though, this witness was declared as hostile, it is settled position
of law that the entire testimony of such hostile witness need not be
discarded. This witness claims to be the mediator at the time of marriage
and having know to both sides. He, however, does not support the
allegations of Dattu and Rayaji with regard to any dispute about the
marriage and demand of dowry prior to the marriage. Moreover, the
learned Trial Court has also discarded the said evidence to be relevant for
the decision of the present case. This Court, on the basis of evidence on
record, has no hesitation to hold that the prosecution has failed to prove
any dispute prior to the marriage, particularly the demand of dowry.
12. Both Dattu (PW1) as well as Rayaji (PW3) claimed that the
deceased had informed them about the demand made by the accused of
Rs.25,000/- for the purpose of digging a bore-well in their agricultural field.
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The cross-examination of these two witnesses, however, indicates that
there exists a well in the agricultural field of the accused and there is a
electric water pump fixed thereon. They also admit to have seen standing
crop in the agricultural field of the accused. This cross-examination clearly
indicates that there was a well in the agricultural field and the accused
were in the position to take the crops therein. Learned Trial Court, in this
regard, recorded a finding that though there exists a well in the field of the
accused, it cannot be accepted that they had not proposed to prepare
bore-well. It is pertinent to note that there is absolutely no evidence on
record to indicate that there was any such proposal of the accused for
digging a bore-well in their agricultural field. The findings recorded by the
Trial Court are nothing but surmises and conjectures which is not
permissible in law. It also needs to be remembered that there is no
burden upon the accused to prove their innocence. What is expected from
the accused is to explain the incriminating circumstances against them. In
this regard, if the evidence on record clearly suggests that there exists
well in the field of the accused and that they were cultivating the
agricultural filed. There was no incriminating circumstance against the
accused in order to make them to explain the same. This Court,
therefore, finds no reason to hold that the prosecution has proved the
demand of Rs.25,000/- for the purpose of digging bore-well. It was
always open for the prosecution to examine the adjoining field owner or
cultivators in order to show existence of the well in the agricultural field of
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the accused was without any water. In absence of any such evidence, it
cannot be assumed that the well had no water and, therefore, the accused
were intending to dig a bore-well and for that purpose demand of
Rs.25,000/- is made.
13. Most importantly, the Trial Court has acquitted all the accused
including the present appellants for the offence punishable under Section
498-A read with 34 of the IPC. There is no challenge to the said acquittal
on the part of the State. The acquittal recorded by the Trial Court indicates
that there was no harassment caused to the deceased for meeting any
illegal demand of dowry.
14. It would be relevant at this stage to take note of Section 304-B
of the IPC, which reads thus :
304-B. Dowry death. --(1) Where the death of a woman is caused
by any burns or bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is shown
that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her husband for, or
in connection with, any demand for dowry, such death shall be
called "dowry death" , and such husband or relative shall be
deemed to have caused her death.
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven years
but which may extend to imprisonment for life.
In order to convict the accused under Section 304-B raising presumption
regarding dowry death within seven years of marriage, there has to be
evidence indicating that soon before her death such a woman had been
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subjected by the accused to cruelty or harassment for/or in connection
with any demand for dowry and in such circumstances only, the
presumption as contemplated by Section 113-B of the Indian Evidence
Act, 1872 would attract. Relevant provisions of the IPC and Dowry
Prohibition Act, 1961 indicate that cruelty or harassment of a lady by her
husband or his relative for or in connection with any demand for property
or valuable security as a demand for dowry or in connection therewith.
Thus, these essential ingredients would constitute both offences under
Section 304-B and Section 498A of the IPC. Since, the Trial Court has
acquitted the accused persons for the offense punishable under Section
498A, question of accepting the case of the prosecution for convicting the
accused under Section 304-B of the IPC does not arise.
15. Even otherwise, perusal of the evidence on record as
indicated above, does not show that the prosecution has succeeded in
proving the demand of Rs.25,000/- for the digging the bore-well in the
agricultural field by the accused persons. The only evidence remains then,
is the incident occurred at the time of satyanarayan puja. Evidence of
Dattu (PW1) and Rayaji (PW3) indicates that the accused was annoyed
and has refused to accept the cap and uparne offered to him and this
according to the prosecution indicates the state of mind of the accused
and is sufficient to draw inference with regard to the harassment caused
by the accused to the deceased. There cannot be any presumption with
regard to the harassment caused by the accused to the deceased and it
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must be proved by leading cogent evidence. It is pertinent to note that
there is discrepancy in the evidence of Dattu (PW1) and Rayaji (PW3) as
compared to the testimony of Latabai (PW6). On one hand, Dattu (PW1)
and Rayaji (PW3) claimed that accused No.1 did not accept the offerings
of cap and uparne and left the house angrily, however, Latabai (PW6)
claims that accused No.1 left the house angrily as no new clothes were
offered to him. This is a material discrepancy in the testimony of these
three witnesses and it creates doubt as to whether any such incident had
occurred or not. Even if it is accepted for the sake of argument that such
incident did occur and the accused No.1 refused to accept the cap and
uparne offered to him, that does not lead to the conclusion that the
accused were harassing the deceased. There has to be specific evidence
led by the prosecution in this regard. It is impermissible in law to draw any
presumption of the guilt of the accused sans evidence of record.
16. Coming to the factum of the death of the deceased, a serious
doubt is created from the evidence on record as to whether the deceased
died on account of snake bite or she consumed pesticide/poisonous
substance. It is sought to be argued on behalf of the prosecution by
learned APP that the possibility of the accused persons pressurizing the
deceased to disclose the snake bite to Shivpuri Baba (PW5) or the
Medical Officer is not ruled out. In the beginning itself, it needs to be
clarified that there cannot be any such assumption that on account of
pressurizing done by the accused persons, the deceased gave wrong
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history to the Medical Officer or Shivpuri Baba (PW5). There has to be
evidence on record to conclude so. Though there is evidence of Dattu
(PW1) to indicate that accused No.5 i.e. the younger brother of accused
No.1 disclosed to Dattu (PW1) of snake bite having caused to deceased.
The evidence on record,however, more particularly testimony of Manik
(PW4), indicates that he along with Kaluram i.e. his cousin brother took
deceased to Shivpuri Baba (PW5) at Vavi (Thushi). There is no further
dispute about the fact that Shivpuri Baba (PW5) used to give medicine on
snake bite. This witness also claims that deceased told about the snake
bite on her left hand. There is no cross-examination conducted by the
prosecution after the defence has brought the said facts on record. The
deceased was taken to the hospital at Niphad. As admitted by the
Medical Officer (PW8) in his testimony that the deceased gave history of
snake bite and that she was initially treated therefor by giving anti-venom
injection. Though the Medical Officer claimed that subsequently on his
persuasion, the victim has given history about consumption of poisonous
substance i.e. pesticide, there is no evidence on record to support the
said claim of the medical officer. During the cross-examination also,
Medical Officer (PW8) showed his inability to indicate at what point the
treatment for poison was started.
17. It is claimed by the learned prosecutor that there would be no
reason for the medical officer to depose falsely with regard to the history
given by the patient. The reliability or otherwise testimony of any witness
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including a medical officer would be decided on the basis of his entire
testimony and on the basis as to how he could withstand the cross-
examination conducted by defence. Medical Officer is not only unable to
state as to the time from which the treatment for poison started on the
patient but there is cross-examination conducted of this witness to
suggest that since no proper treatment was given to the patient, the
record has been created with regard to death on account of consumption
of poisonous substance. A suggestion is made to this witness that though
the post-mortem is conducted by two doctors, only one doctor signed the
same i.e. witness and Dr.Shinde who was also present as the time of
conducting post-mortem has not signed it. Perusal of post-mortem note -
Exhibit-36, indicates that post-mortem notes are not signed by Dr. Shinde.
Non-signing of post-mortem notes by him is not explained by prosecution.
18. It is pertinent to note that the Medical Officers have recorded
findings even without waiting for C.A. Report to the effect that the death is
occurred due to consumption of organophosphorus poison i.e. pesticide.
Needless to say that such finding is on purported history given by patient.
It would therefore be necessary to see as to whether any connecting
evidence to indicate the death of the deceased on that count. The CA
Report, no doubt, supports the finding recorded by the medical officer.
However, it is pertinent to note that the evidence of the prosecution in this
regard, more particularly with regard to the seizure of the poisonous
substance is not free from doubt. It is relevant to note that police head
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constable-Jadhav though claims to have visited the spot and seized the
poisonous substance/pesticide from a cattle-shed, the said seizure has
been done even before the registration of crime. It is relevant to take note
of the fact that the panch witness has turned hostile and he denied
seizure of any poisonous substance/bottles in his presence. Though
second panch witness was available, for the reason best known to
prosecution, the said witness was not examined. Now, therefore, there
remains testimony of Head Constable - Jadhav to prove the recovery.
Though he claims to have recovered the said muddemal in presence of
the panch witness, during the cross-examination, it is brought on record
that panchanama - Exhibit 23 does not indicate sealing of the muddemal.
This becomes major drawback to the case of the prosecution. This needs
to be considered in the light of the evidence of the carrier. Prabhakar -
(PW7), Police Naik, who carried the muddemal has admitted in the cross-
examination that except for four bottles in two boxes, no other article was
given to him. Learned Trial Court has recorded a finding that
acknowledgment of CA is sufficient to indicate that the muddemal was in
sealed condition and, therefore, accepted the evidence. There cannot be
any presumption in this regard and more particularly, when the
panchanama of seizure of the poisonous substance is prior to the
registration of FIR and which does not show the sealing of the muddemal
at the relevant time. In such circumstances, the possibility of tampering of
evidence is not completely ruled out.
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19. It needs to be recorded that there cannot be any presumption
that the deceased consciously consumed the poisonous substance in
order to end her life. In order to prove the charge under Section 306 of
IPC, the burden would certainly be on the prosecution to prove such
conscious consumption in order to commit suicide. The evidence on
record does not indicate so. Moreover, the evidence led by the
prosecution in not sufficient to hold that just before the act in question, the
deceased was harassed by the accused persons for illegal demand.
Having regard to all these facts, this Court finds no justification to sustain
the conviction recorded against the accused persons. Since the
prosecution has failed to bring home guilt of the accused beyond shadow
of reasonable doubt, they deserve to be acquitted.
20. Hence, the following order :
ORDER
1. The appeal is allowed.
2. The judgment and order dated dated 4th September 1998
passed in Sessions Case No. 178 of 1997 by the IV Additional
Sessions Judge, Nashik, is quashed and set-aside.
3. The appellants/accused stands acquitted of all the charges.
4. The bail bonds of the appellant stands cancelled.
5. Fine, if any paid, be refunded to the accused.
6. Record and proceedings be returned to the learned Trial Court.
The appeal stands disposed of.
(R. M. JOSHI, J.)
