Cr.Appeal/376/1994 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 376 OF 1994 The State of Maharashtra ..Appellant Versus 1. Bhavsingh Karbhari Shingare Age 25 years, Occ. Agriculture, 2. Karbhari Motiram Shingare, Age 65 years, Occ.Agriculture, 3.Ramsingh Karbhari Shingare Age 30 years, Occ.Agriculture, 4.Bhurabai Karbhari Singare, Age 40 years, Occ. Household, All residents of Nalniwadi, Taluka Bhokardan, Dist.Jalna ..Respondents ... Smt. S.D.Shelke, APP for appellant, Shri Ujwal S.Patil h/f Shri R.S.Deshmukh, Advocates for Respondents. ... CORAM : A.H.JOSHI & A.R.JOSHI, JJ. Dated : September 27, 2011 ORAL JUDGMENT : (Per A.R.JOSHI, J.) :- 1. Heard rival submissions, on this Criminal Appeal, preferred by the State of Maharashtra, challenging the judgment and order dated 9.8.1994, passed by the learned Additional Sessions Judge, Jalna in Sessions Case No.71 of 1991. Cr.Appeal/376/1994 2 2. By the impugned judgment and order, all the four accused/present respondents were acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code ("IPC" for brevity). 3. The facts of the case are as under:- Victim Rajubai got married in March 1990 with accused No.1. After marriage she started residing in the joint family, consisting of all the four accused i.e. accused No.1 - her husband, accused Nos.2 and 4 - her in-laws and accused No.3 - brother of the accused No.1. All the accused and victim Rajubai were staying at Nalniwadi, Taluka Bhokardan, District Jalna. Allegedly, there was some dispute regarding the non-payment of dowry amount, so also allegedly there was some dispute whether the dowry amount was fixed at Rs.18,000/- or Rs. 15,000/-. Some part of the dowry amount was already given to accused No.1 at the time of marriage by the parents of victim Rajubai. Allegedly, an amount of Rs.3,000/- remained to be paid. On that count, there used to be a quarrel and victim Rajubai was ill-treated by the accused persons. At some Cr.Appeal/376/1994 3 occasions of religious functions/festivals, victim Rajubai used to visit her parents and that time she used to narrate the ill-treatment and harassment meted out to her. 3. The incident of death of victim Rajubai occurred in the afternoon of 14.11.1990. On that day, allegedly, all the accused and also victim Rajubai, were working in their agricultural field. Allegedly, at that time, two persons Nivrathi Thombre (PW 4) and Salakram Gadekar (PW 5) visited the field for demand of the balance amount to be paid by accused No.2 to Salakram Gadekar, on account of boring machine owned by Gadekar and installed at the agricultural field of accused No.2. 4. It is also the case of prosecution that on that afternoon, there was some quarrel on account of demand of dowry and victim Rajubai was assaulted by all the accused persons. This assault was witnessed by PW 4 Nivrathi Thombre and PW 5 Salakram Gadekar, who were present there. After sometime, these witnesses left the spot. Thereafter, allegedly, victim Rajubai was throttled by the accused persons Cr.Appeal/376/1994 4 and she was put to death. Prior to throttling, victim Rajubai was assaulted by fist and kick blows and allegedly, accused No.1, gave blows of shoe, worn by him at that time, on the face of victim Rajubai. 5. It is further case of the prosecution that on the same night of 14.11.1990, parents and brother of victim Rajubai were informed regarding serious condition of victim Rajubai and her hospitalization. PW 1 Narsing Jarwal - brother of victim Rajubai and PW 2 Asaram Jarwal - father of victim Rajubai rushed to village Nalniwadi. However, they noticed that Rajubai had already expired. Sensing the foul play at the hands of the accused persons, PW 1 Narsing Jarwal - brother of victim Rajubai, lodged a complaint with Bhokardan Police Station. Offence was registered against all the accused under Sections 304-B, 498-A read with 34 of IPC. 6. Police visited the spot on the next day and spot panchanama was prepared, during which, samples of vomit found on the spot were taken charge of, so also, certain tin of some insecticide was Cr.Appeal/376/1994 5 also taken charge of. Dead body of victim was sent for post mortem. Post mortem was apparently done by two Doctors i.e. PW 7 Raghunath Rathod and Dr.Jadhav. Viscera was preserved and sent for chemical analysis and Chemical Analyser's report was obtained. On receipt of post mortem report, showing the cause of death as "Cardio-respiratory arrest due to throttling", offence under Section 302 of IPC was substituted for the offence under Section 304-B of IPC. 7. During investigation, statements of various witnesses were recorded and after substitution of the offence, further more statements were recored. All the four accused were arrested and were charge-sheeted before the appropriate Court and the matter was committed to the Court of Sessions and ended in acquittal. 8. The entire case of the prosecution rests on the testimony of eye witnesses PW 4 Nivrathi Thombre and PW 5 Salakram Gadekar and the contents of the post mortem report Exhibit 29, showing the cause of death as "Cardio-respiratory arrest due to Cr.Appeal/376/1994 6 throttling". During trial, in all ten prosecution witnesses were examined as under:- (1) PW 1 Narsingh Jarwal is brother of victim. He lodged the first information report (Exhibit 17). (2) PW 2 is Asaram Jarwal, father of the victim. (3) PW 3 is Motilal Sulane, husband of sister of the deceased. (4) PW 4 Nivrathi Thombre and PW 5 Salakram Gadekar are the eye witnesses, who were present at the scene of offence and allegedly witnessed the assault on victim. (5) PW 6 Gundu Ghunawat is panch regarding the inquest panchanama. (6) PW 7 is Dr.Raghunath Rathod, who conducted post mortem report on the dead body. (7) PW 8 is Vishwas Shejwal, Police Sub Inspector - an Investigating Officer. (8) PW 9 is Police Constable Dhondiram Dhavle, who recorded the first information report, as given by PW 1 Narsingh Jarwal. Cr.Appeal/376/1994 7 (9) PW 10 is Suresh Jagdale, a Police Constable, who carried the viscera to the offence of Chemical Analyser. 9. We has observed that the learned Sessions Judge has, in the impugned judgment and order, critically discussed the substantive evidence of alleged eye witnesses PW 4 Nivrathi Thombre and PW 5 Salakram Gadekar, contents of post mortem report Exhibit 29 and also the substantive evidence of PW 7 Dr. Raghunath Rathod. Certain specific findings/ circumstances were recorded by the learned Sessions Judge, while arriving at the conclusion as to alleged eye witnesses PW 4 Narsingh Jarwal and PW 5 Asaram Jarwal not worthy of acceptance. The learned Sessions Judge has also dealt with the aspect of death, whether homicidal or suicidal. The learned Sessions Judge has come to the conclusion that the prosecution has failed to establish that the death of victim was homicidal and there was a possibility of she consuming some insecticide, as suggested on behalf of the defence. This defence was accepted by the learned Sessions Judge on preponderance of probabilities, mainly, considering the various Cr.Appeal/376/1994 8 aspects dealt by him. Such various ponts/ circumstances, which weighed with the learned Sessions Judge, are narrated here under:- (1) As per the substantive evidence of PW 7 Dr.Raghunath Rathod, there were no external injuries on the neck of victim so also there were no finger marks around the neck. (2) The post mortem was performed by PW 7 Dr.Raghunath Rathod and also another Dr.Jadhav. However, Dr. Jadhav did not sign the post mortem report. (3) Post mortem report was prepared on 8.12.1990 whereas, death occurred on 14.11.1990 and post mortem was performed on 15.11.1990. Thus, there was a delay of about three weeks in preparing the post mortem report. (4) Post mortem notes were not produced before the Court. (5) Post mortem report was not sent to Civil Surgeon. (6) As per Chemical Analyser's report the contents of the viscera show no traces of any known poison. However, the Cr.Appeal/376/1994 9 prosecution could not establish regarding safe custody and safe handling of viscera, which was sent to Chemical Analyser. (7) As per Dr. Raghunath Rathod (PW 7), viscera was directly sent to the office of Chemical Analyser, whereas, as per PW 8 Investigating Officer, it was received by the Police Station, through constable, and then it was sent for chemical analysis. 10. Apart from the above circumstances, discussed in detail by the learned Sessions Judge, what was weighed with the Court was the answer given by Dr. Rathunath Rathod (PW 7), as to possibility of not finding the traces of some poison in the viscera of deceased in some cases of death by poisoning. The learned Sessions Judge has also observed that the articles found on the spot, some insecticide tin and the sample of vomit, were not sent for chemical analysis and this was considered as a mitigating circumstance to the case of prosecution. Thus, the learned Sessions Judge arrived at the conclusion as to failure of the prosecution to establish the homicide, thus, giving benefit of doubt in favour of the accused accepting the defence on preponderance of probabilities. Cr.Appeal/376/1994 10 11. The points/circumstances, which weighed with the learned Sessions Judge to discard the testimony of PW 4 Nivrathi Thombre and PW 5 Salakram Gadekar are as under:- (1) The substantive evidence of PW 4 Nivrathi Thombre and PW 5 Salakram Gadekar is inconsistent with the medical evidence, inasmuch as, according to these witnesses victim was assaulted. However, there were no external injuries found by the Medical Officer on the dead body of deceased, inasmuch as, according to PW 5 Salakram Gadekar, blow of shoe was given by accused No.1 on the right cheek of victim, whereas as per the post mortem, there was reddish patch on the left cheek of victim. (2) Though the alleged eye witnesses PW 4 Nivrathi Thombre and PW 5 Salakram Gadekar were available to the police since the date of incident i.e. 14.11.1990, their statements were recorded much belatedly i.e. after about one month. The statement of PW 4 Nivrathi Thombre was recorded on 21.12.1990 and that of PW 5 Salakram Gadekar was recorded on 29.12.1990. Apparently, these statements were recorded after receipt of the post mortem report, which was prepared on Cr.Appeal/376/1994 11 8.12.1990 and thereafter, subsequently given to the police. (3) According to PW 5 Salakram Gadekar, he witnessed the incident of assault on victim sometime after the festival of Nag Diwali. This is contrary to the factual position as to victim died on 14.11.1990, whereas, during that year of 1990, Nag Diwali was on 22.11.1990. This fact has been ascertained by the learned Sessions Judge by taking recourse of a Marathi Panchang and as such apparently, judicial note was taken. (4) According to PW 4 Nivrathi Thombre, he told the incident of assault on victim to PW 2 Asaram Jarwal - father of the victim. However, there is no specific evidence of PW 2 Asaram Jarwal as to knowing the said incident of assault from PW 4 Nivrathi Thombre. Moreover, there is no mention to that effect in the first information report given by PW 1 Narsingh Jarwal, though according to PW 2 Asaram Jarwal, everything he knew was intimated to PW 1 Narsingh Jarwal. 12. Lastly, it is discussed by the learned Sessions Judge as to failure of the prosecution to establish the motive. On this aspect, substantive Cr.Appeal/376/1994 12 evidence of PW 1 Narsingh Jarwal, PW 2 Asaram Jarwal and PW 3 Motilal Sulane was critically examined by the learned Sessions Judge and what weighed much with the Court was the substantive evidence of PW 1 Narsingh Jarwal (paragraph No.3 of the notes of evidence) saying that the balance amount of Rs. 3,000/- from the total dowry was already paid to accused No.1. 13. Considering the above mitigating circumstances to the case of prosecution, the learned Sessions Judge had dis-carded the testimony of PW 4 Nivrathi Thombre and testimony of PW 5 Salakram Gadekar and hold the failure of the prosecution to establish that victim died homicidal death. This resulted in acquittal of all the accused, accepting their defence on preponderance of probabilities. 14. After scrutiny of the entire evidence, in the light of the various circumstances mentioned above, we are of the view that there is nothing on record to come to a different conclusion than that arrived at by the learned Sessions Judge, Cr.Appeal/376/1994 13 considering the scope of this Court in dealing with the appeals against acquittal. 15. In view of the above, there is no merit in the appeal preferred by the State of Maharashtra and the same is disposed of with the following order. ORDER Criminal Appeal No. 376 of 1994 stands dismissed. (A.R.JOSHI, J.) (A.H.JOSHI, J.) ... akl