( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 419 OF 1997 1. Madhukar Kauravanath Jamdar .. Appellants Aged 25 years, Occ. Nil., R/o. Kanher-Vasti, Taluka – Newasa, Dist. Ahmednagar. [Appeal abated against appellant No.1 as per order dated 10.07.2006] 2. Kauravanath Devrao Jamdar Age. 55 years, Occ. Nil, R/o. As above. 3. Ambadas Kauravnath Jamdar Age. 28 years, Occ. and R/o. As above. 4. Baban Kauravnath Jamdar Age. 28 years, Occ. and R/o. As above. 5. Subhadrabai w/o. Kauravanath Jamdar Age. 52 years, Occ. and r/o. as above. Versus The State of Maharashtra .. Respondent Shri S.B. Jadhav h/f Shri R.N. Dhorde, Advocate for the appellants. Mrs. B.R. Khekale, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 10.11.2009 ( 2 ) ORAL JUDGMENT :- 1. The appellants are accused Nos. 1 to 5 who were convicted of offences punishable under Sections 304-B, 306 and 498-A all read with Section 34 of the Indian Penal Code. For offence punishable under Section 304-B read with 34 of the I.P.C., each of the accused is sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 5000/-, in default, to suffer rigorous imprisonment for six months. For offence punishable under Section 306 read with 34 of the I.P.C., each of the accused is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 1000/-, in default, to suffer rigorous imprisonment for three months. No separate punishment was awarded for offence punishable under Section 498-A read with 34 of the I.P.C. 2. Brief facts giving rise to this appeal may be stated as below :- . Original appellant No.1 – Madhukar, who expired pending this appeal, had married deceased Savita, daughter of P.W.2-Vithal and sister of P.W.1-Rajendra and P.W.4-Ranjana. ( 3 ) P.W.3-Haribhau is brother of P.W.2-Vithal. Marriage of Savita with original accused No.1 Madhukar was solemnized on 30.05.1994. After marriage Savita went to reside at the house of the appellants. P.W.4-Ranjana went with Savita to briefly accompany her at the house of the appellants. On 15.05.1994, P.W.1-Rajendra went and brought Savita to the house of P.W.2-Vithal. At that time Savita complained that while she was leaving for her paternal house, accused No.1 Madhukar told her to bring a motor cycle from her parents. On 19.05.1994, when Savita was to be taken back by the uncle of accused No.1 and the brother of accused No.1, who had come to take her away, she started weeping and said that unless motor-cycle was given, she would be harassed. At that time Vithal told her that there would not be any illtreatment. Uncle of accused No.1 also gave assurance and therefore, Savita went with them to the house of the accused. On 22.05.1994 P.W.1-Rajendra had gone to see well-being of Savita. P.W.1-Rajendra came back in the evening and said that Savita told him that for non-providing motor-cycle, the accused persons were harassing her. Therefore, Savita had given message for giving motor-cycle to the accused. ( 4 ) 3. On 26.05.1994 message was received that Savita was serious and when P.W.2-Vithal and others went to the house of the accused, she found dead and it was informed that she died due to accidental fall in a well. Police were also informed. Police came, drew spot panchanama and inquest panchanama. They sent the dead body for post-mortem. On 29.05.1994, P.W. 2-Vithal, father of deceased Savita, lodged complaint, informing that there was demand of motor-cycle and illtreatement to the deceased. Crime was registered against the accused. Statements were recorded. Finally charge-sheet was sent. 4. The prosecution examined in all five witnesses. Four of them are father, brother, sister and uncle of deceased Savita and fifth is Investigation Officer. Most of the documents are admitted by the accused. 5. Thus the document at Exh.12 is first information regarding death of Savita. It is given by accused No.2- Kauravanath. It was registered at Sonai Police Station at about 9.00 a.m. on 26.05.1994, wherein it is stated that the marriage was performed on 13.05.1994. Savita once went to ( 5 ) parental house and came back. On 25.05.1994 Savita was in the house. After dinner at 10 p.m., accused No.1-Madhukar and deceased Savita went to sleep in the room. On 26.05.1994 Savita got up at about 5.30 a.m., and went to answer nature’s call and did not come back. Therefore, accused No.1 Madhukar and accused No.1-Kauravanath went in search of Savita. They went to the well and found the pot usually taken for answering nature’s call by the side of the well. Therefore, accused No.2-Kauravanath suspected and asked accused No.1- Madhukar to search in the well. At that time Savita was found inside well water. Thereafter, Savita was taken out by accused Nos. 1,2,4,5 and one Karbhari. She was taken in a bullock cart to the Government Hospital, where Dr. Darandale examined and declared Savita dead and asked to take away dead body. So, Savita’s dead body was taken to the house and placed there. 6. Inquest panchanama is at Exh.13. The inquest panchanama so also post-mortem notes at Exh.14 clearly show that on the dead body of deceased, there were all clothes. She was also having ornaments like Dorale, ear rings, nose rings, anklet etc. So, it was a normal appearance. The ( 6 ) post-mortem notes show that there were two injuries. They were post-mortem injuries. One injury was upper eyelid 1 cm x 1 cm through which eyeball was exposed and other was ear half cut at pinna. The Doctor opined that death was due to asphyxia due to drawning. The spot panchanama is also admitted and it is at Exh.16 and it shows that the depth of water in well was 14 ft. Though the well was constructed it has no fencing or protective wall. One piece bangle was found, but there was no other indication. It is argued that there was no slippery area around the well, but the spot panchanama is too brief. There is nothing to infer that it was not accidental fall but either suicide or murder. 7. P.W.2-Vithal examined at Exh.19 mainly spoke as per the F.I.R. He stated that first demand was made immediately after the marriage while bride and bridegroom were departing from his house, but omission to that effect was duly proved through the Investigation Officer. So it is an improvement. In the complaint it is not mentioned that there was any demand immediately after the marriage. The cross-examination mainly shows that after death, P.W.2-Vithal, P.W.1-Rajendra and others had been to the house of the accused and they ( 7 ) learnt about the death. Police had also came, but even though the police were present and they were drawing inquest panchanama and spot panchanama, no complaint was filed by P.W.2-Vithal, nor he raised any doubt. It is further stated that P.W.2-Vithal has accompanied dead body to Ahmednagar, but he has not lodged complaint on that day. The complaint is lodged on 29.05.1994, though the death was known to them on 26.05.1994. So, this delay clearly shows that the complaint might be after thought. 8. Evidence of P.W.4-Ranjana is important for our purpose in as much as she claimed to have accompanied Savita to the house of the accused immediately after marriage. She stated in her statement at Exh.20 that at the time of departure of bride and bridegroom, appellant No.1 made first demand of motor-cycle. She lived at the house of the accused for three days and came back to her parental house on third day. She did not say that during that period there was any illtreatment in her presence. According to her, on 14.05.1994 when she along with Savita, accused No.1 and others had been to Shingnapur, Devgad etc. for darshan of idols, on the way accused No.1 demanded motor-cycle. ( 8 ) However, omission brought on record that P.W.4-Ranjana has not stated in her statement before police about demand of motor-cycle either at the time of departure of bride and bridegroom immediately after marriage on 14.05.1994 or when they visited Shingnapur, Devgad etc. So, there is tendency of embellish and exaggerate. According to the witness Ranjana, on 15.05.1994 there was Satyanarayan Pooja at the house of the accused. Her brother Rajendra had come to the house and thereafter they took Savita to the house of her father. At their house Savita stated about the demand. If we are to go by complaint, it can be safely stated that before 15.05.1994, there was no illtreatment. As per the evidence of prosecution witnesses, while leaving the parental house on 15.05.1994, Savita apprehended that there would be illtreatment as motor-cycle was not brought, but the uncle and the brother of accused No.1 and so also the father of Savita gave her assurance and father P.W.2-Vithal had said that he would give motor-cycle later on. In this case, death had occurred 13 days after marriage. So, question would arise whether really there would be illtreatement in between 15.05.1994 to 26.05.1994 for non-satisfaction of demand of motor-cycle. ( 9 ) 9. There was delay in lodging the complaint. It is explained that P.W.1-Rajendra had become ill suddenly in the evening of 26.05.1994 and that he had to be hospitalized. The explanation needs to be taken with the pinch of salt. There is no documentary evidence about such illness or hospitalization. There is only oral word of interested persons. The delay in lodging complaint gives scope for concoction, embellishment and so raises doubt. If, we are to go by the statement in F.I.R., according to P.W.2-Vithal, when they came back to Sonai, P.W.1-Rajendra became ill, so he was taken to hospital at Vambori and was treated there and then he (Vithal) came home. Due to said illness he could not attend the funeral at Sonai, however, other relatives and villagers were there to attend the funeral. So question was raised if really there was hospitalization of P.W.1-Rajendra. 10. No evidence is lead by the prosecution to show that the contents of initial information regarding death of Savita by accused No.2 as accidental death was in anyway false. The possibility of it being accidental death is consistent with conduct of the accused in going in search of Savita, ( 10 ) suspecting that she might have fallen in the well, accused No.2 asking accused No.1-Madhukar to search Savita in water and then taking her out and taking her in bullock-cart to Government hospital. This conduct is consistent with innocence of accused. There is no attempt to hide anything. 11. P.W.3-Haribhau is uncle of deceased Savita. He stated that on 16.05.1994 Savita met him and told him that accused were demanding motor-cycle and thereafter he requested P.W.2-Vithal to give motor-cycle to accused, upon which P.W.2-Vithal said that he was unable to do so due to financial problem. He did not depose about other things. 12. In this case, there is evidence of four persons who are very closely related and thus interested. There is no independent corroboration to their evidence about demand of motor-cycle or complaint by Savita about illtreatment. Possibility of illtreatment or cruelty within first fortnight of the marriage does not appear natural or probable. The psychology of close relatives of deceased is very well explained by the Supreme Court in para 48 in the case of Sharad Birdhichand Sarda V/s. State of Maharashtra, AIR 1984 ( 11 ) S.C. 1622. Para 48 is as below :- “Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that is done consciously but even unconsciously, the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.” 13. Considering the circumstances of the case, in my opinion, the possibility of accused being innocent and possibility of there being no demand of motor cycle and no illtreatment or cruelty at so early stage is distinct. The prosecution case appears less probable. In my opinion, defence is reasonably possible. The delay in lodging ( 12 ) complaint and other circumstances stated above including tendency to exaggerate and embellish on the part of material witnesses make prosecution case doubtful. So, in view of this I give benefit of doubt to the accused. 14. In the result, the appeal is allowed. The order of conviction and sentence dated 19.12.1997 passed by the II Additional Sessions Judge, Shrirampur, is hereby quashed and set aside. The accused are acquitted of the offences with which they were charged. Their bail bonds stand cancelled. Fine, if paid, be refunded to them. [P.R. BORKAR,J.] snk/2009/NOV09/crap419.97