1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 74 OF 2008 1. Narayan Vithoba Dhagare, Age 50 years, Occu.Labour, 2. Sakharbai w/o Narayan Dhagare, Age 40 years, Occu.Household 3. Ramesh @ Bandu s/o Narayan Dhagare, Age 21 years, Occu.Labour All R/o Muluk, Taluka and District Beed .. APPELLANTS VERSUS - State of Maharashtra .. RESPONDENT Shri Joydeep Chatterji, Advocate for appellant No.1 Smt.S.S.Jadhav, Advocate for appellant Nos.2 and 3 Shri S.V.Kurundkar, Addl.Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ DATE : 8th December 2009 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellants who stand convicted for offences punishable under Section 302, 304-B, 498-A, 201 read with 34 of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act and accused No.2 stands additionally convicted for 2 offence punishable under Section 323 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 5,000/- each in default of payment of fine to undergo further simple imprisonment for three months and rigorous imprisonment for three years and fine of Rs.3,000/- each with a default condition of undergoing further rigorous imprisonment for three months in the event of non-payment of fine, rigorous imprisonment for six months and to pay fine of Rs.1,000/- with a default stipulation of undergoing further simple imprisonment for one month and rigorous imprisonment for seven years with fine of Rs.2,000/- each with a default condition of undergoing further simple imprisonment for six months in the event of non-payment of fine and rigorous imprisonment for one year and to pay fine of Rs.1,000/- each with a default condition of undergoing further simple imprisonment for one month in the event of non-payment of fine, with a direction that the substantive sentences against the respective accused shall run concurrently, by the Additional Sessions Judge-II, Beed, by judgment dated 20.2.2008, in Sessions Case No.17/2007, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of the appeal may briefly be stated thus. 3 P.W.6, A.S.I. Bhosale who was working in the Neknoor Police Station recorded the complaint of P.W.5 Jijabai at Exh.23 on 20.12.2005. On the basis of the said complaint, P.W.6 A.S.I. Bhosale registered an offence under Section 302, 201, 323, 498-A read with 34 of the Indian Penal Code and under Section 3 and 4 of the Dowry Prohibition Act, vide Crime No.156/2005. The investigation of the said crime was handed over to P.W.8 A.P.I. Bhume. The post mortem on the dead body of deceased Ashwini was performed by P.W.1 Dr.Shahane who noticed an incise wound over left side of neck 3” x 1/2”. He also noticed that the dead body was damaged by aquatic animals. He, therefore, opined that cause of death did not appear due to drowning. He accordingly issued the provisional cause of death certificate at Exh.16. The post mortem report is at Exh.15. The accused came to be arrested and the seized property in the said crime was referred to the Chemical Analyzer through P.W.7 Police Constable Sudesh along with the requisition at Exh.39. Further to the completion of investigation a charge-sheet against the accused came to be filed. 3. On committal of the case to Court of Sessions, trial Court vide Exh.7 framed a charge against the accused. The appellants denied their guilt and claimed to be tried. Prosecution in support of its case examined eight witnesses. The trial Court 4 accepted the evidence of the prosecution witnesses and convicted and sentenced the accused as aforestated. 4. P.W.2 Gorakh, a witness to the scene of the offence panchnama has admitted that the Well in which the dead body of deceased Ashwini was found floating is not a constructed Well. He has admitted that he did not notice as to whether steps had been created for entering inside the Well. He has also acknowledged that one orange coloured cap, used in Winter, was found at a distance of 5 feet from the Well. We may at this juncture briefly make a reference to the evidence of P.W.4 Henumant, uncle of deceased Ashwini who admits that the Well was not constructed above the water level. The scene of the offence panchnama is at Exh.18. 5. P.W.5 Jijabai, mother of deceased Ashwini and the first informant states that deceased Ashwini was married to accused Ramesh on 18.11.2005. She states that during marriage it was decided that dowry of Rs.30,000/- would be paid to accused Ramesh and from the said amount, an amount of Rs. 20,000/- had been paid to Ramesh and balance of Rs.10,000/- remained to be paid. After marriage, Ashwini went to reside with her husband and returned to her maternal home after four days of her marriage and resided there for a day. After about 8 to 10 5 days she returned back to her parents’ house and informed P.W.5 Jijabai that she was sent to bring Rs.10,000/-. P.W.5 Jijabai noticed that Ashwini was weeping at that time. She informed Jijabai that she was assaulted by her husband and his parents. Jijabai accordingly advised her that at present she was not having the money and the amount would be paid subsequently. She then states that mother-in-law of Ashwini came to her house at about 2.00 p.m. and she asked Ashwini as to why she had come to her parents’ house and what type of harassment was caused to her. She accordingly gave Ashwini 2 to 4 slaps. The mother-in- law of Ashwini informed Jijabai that she had come to fetch Ashwini. Jijabai told her that Ashwini was not ready to go with her mother-in-law but she sent her at about 5.00 p.m. On 16.12.2005, accused No.1 and accused No.3 had come to her house along with one person and they had asked Jijabai if Ashwini had come to her house. Jijabai answered in the negative. She noticed that both of them appeared to be frightened and they returned immediately. On that day Jijabai along with Rahibai went to Muluk to the house of the accused. All the three appellants were present in the house and the accused informed her that Ashwini was missing. Accordingly, search was taken. Accused had also searched for Ashwini and had also inspected the Well of one Vishnu Kumbhar. Since whereabouts of Ashwini were not traced, P.W.5 Jijabai returned home on the next day 6 morning. She states that on 20.12.2005 she had received a message on phone and learnt that the dead body of Ashwini was found in the Well of one Vishnu. She along with her relatives reached to village Muluk at about 10.00 to 10.30 a.m. She proceeded to the Well and noticed the dead body of Ashwini flaoting on water. The dead body was removed from the Well by the villagers. According to her the accused were not present and were absconding. She noticed that the aquatic animals had damaged the dead body. She states that thereafter she had lodged her complaint at Exh.23. In cross-examination she has admitted as true that when Ashwini had come on the second occasion, Jijabai had told her that Ashwini should not complaint about such trivial cause as she was a newly married girl. Jijabai also informed her that such trivial matters were likely to crop up in her married life and advised her to ignore such things. She has admitted as true that when she had first gone to Muluk for searching for Ashwini, the accused had also searched for Ashwini but Ashwini was not found and later on in the same Well her dead body was noticed. She states that she was at Muluk till the dead body was brought to Muluk. She has admitted that after the funeral she had gone to village Neknoor. Omission has been duly proved that she had not stated that amount of Rs.30,000/- was agreed to be given as dowry and Rs.20,000/- had been paid. Omission has been duly proved that she had not stated that she 7 had agreed to pay the remaining amount. Omission has been duly proved that she had not stated that when the dead body of deceased Ashwini was removed from the Well, the accused were not present and were absconding. Similarly, omission has been proved that she had not stated in her report that Ashwini was not prepared to go with her mother-in-law but Jijabai had sent her with her mother-in-law. Similarly, she had not stated in her report that the accused were noticed to be frightened when they had come to her. 6. Prosecution has examined P.W.4 Hanumant, uncle of deceased Ashwini. He states that Ashwini, after her marriage used to come to her parents’ house after interval of about 4 months. He states that on 16.12.2005 she had come to the house of her parents and at that time he was standing outside the house. Ashwini started weeping and told P.W.4 Hanumant that she was subjected to cruelty and was beaten. She further stated that she had not been provided food and also informed him that her husband was demanding the remaining amount of dowry of Rs.10,000/-. He states that Ashwini was advised by P.W.5 Jijabai, her brother Navnath and by P.W.4 Hanumant to keep quiet. He states that mother-in-law of Ashwini had come to her house and had asked him whether Ashwini had come to his house. Mother- in-law then went inside the house and slapped Ashwini. He states 8 that Ashwini started weeping and was sent with her mother-in-law at about 5.00 p.m. He then states that after two days the accused had come to his village and had asked him whether Ashwini had come to his house. Mother of Ashwini had replied that she had not come to her house. The accused informed mother of Ashwini that since last two days Ashwini was missing. He states that thereafter he had gone along with P.W.5 Jijabai to village Muluk and had joined the search of the accused but could not trace Ashwini. He states that he had received a phone message that the dead body of Ashwini was found in the Well at village Muluk and accordingly he had gone there. He states in examination-in-chief that the Well had no parapet wall and the electric motor was installed in the Well. In cross-examination he has admitted that the Well was not constructed above the water level. Omission has been duly proved that he had not stated in his statement that when Ashwini had come to his house he was standing outside and Ashwini had started weeping and had informed him that the accused were not providing her food. 7. In face of the evidence of P.W.4 Hanumant and P.W.5 Jijabai, we are constrained to observe that the prosecution has utterly failed to establish that the accused had subjected deceased Ashwini to such harassment or cruelty as would have driven Ashwini to commit suicide. P.W.4 Hanumant speaks about 9 an incident on 16th while P.W.5 Jijabai speaks about the incident prior to 16th. In fact, P.W.5 Jijabai states that on 16th, the accused had come and had informed her that Ashwini was missing. Moreover, omission has been duly proved that Jijabai had not stated that an amount of Rs.30,000/- was decided to be paid to the accused as dowry and Rs.20,000/- had been paid to the accused. If that be the case, the entire edifice of the prosecution that the accused were harassing deceased Ashwini on account of non-payment of the remaining dowry amount falls to the ground. Thus, there is absolutely no reliable evidence in respect of the demand for dowry and harassment of Ashwini on account of its non-payment. There is no consistency in the evidence of P.W.4 Hanumant and P.W.5 Jijabai in respect of the mother-in-law slapping Ashwini. In the light of such discrepant evidence, therefore, according to us no reliance whatsoever can be placed on the testimony of these two witnesses. 8. The next question arises is whether the accused had committed murder of deceased Ashwini by inflicting an incise wound on her neck. Evidence of P.W.1 Dr.Shahane is material on this point. Dr.Shahane refers to finding an incise wound on the left side of the neck 3” x 1/2”. According to him cause of death is due to cardio-respiratory arrest due to Hypovolumic shock secondary to injury over neck. He has further opined that victim 10 could have died 72 hours before the dead body was examined by him. In cross-examination he has admitted as correct that because of decomposition, the wound became invisible and because of that it becomes difficult to opine as whether the injury was an abrasion, contused laceration or incise wound. He has further admitted that if a person falls in the Well and before his body comes into contact with water he may die and in that case water may not enter his body. He has further admitted that in the event the water which is entered the body in a state of decomposition the water may not be present in the body. He has further agreed that if the body is taken out of water after a lapse of time there may not be symptoms of death due to drowning. He then opines, “ Therefore, remote possibility of death due to drowning can not be ruled out.” He further admits, “ I used the word death does not appear due to drowning because I was not confirm about the cause. Cardiac respiratory arrest may appear to a person because of fall, getting water in body through the mouth and nostrils or stoppage of heart.” He further agrees, “ I agree that if a person while falling in the Well for his neck came in touch with sharp rock, such injury may cause. I do agree that because the body was decomposed and maggots eat some parts of body it was not in my competence to give opinion about the cause of death” (Emphasis supplied). 11 Thus, perusal of the evidence of P.W.1 Dr.Shahane clearly indicates that he could not positively state as to the cause of death i.e. deceased Ashwini died as a result of the injury to the neck or whether she died as a result of drowning. P.W.1 Dr.Shahane in no uncertain terms states that death by drowning could not be ruled out. In such circumstances, therefore, according to us the possibility that deceased Ashwini may have committed suicide or may have accidentally fallen in the Well as the Well has no parapet, cannot be ruled out. In such situation, therefore, according to us the accused are entitled to be given the benefit of doubt. In the earlier part of the judgment we have held that there is no evidence in respect of harassment or cruelty to Ashwini on account of failure to pay the agreed amount of dowry and, therefore, according to us the prosecution has failed to prove the circumstance of motive for the accused to have committed the crime. There is absolutely no evidence worth the name to arrive at a conclusion that it was the appellants and the appellants alone who had committed the crime of deceased Ashwini. In such situation, therefore, the conviction of the appellants is wholly unsustainable and the appeal deserves to be allowed. 9. Accordingly, this Criminal Appeal is allowed and conviction of the appellants for offence punishable under Section 12 302 read with 34 of the Indian Penal Code, 304-B read with 34 of the Indian Penal Code and 498-A read with 34 of the Indian Penal Code, 201 read with 34 of the Indian Penal Code, Section 4 of the Dowry Prohibition Act and conviction of accused No.2 Sakharbai w/o Narayan Dhagare for offence punishable under Section 323 of the Indian Penal Code is hereby quashed and set aside and the appellants are acquitted of the offences with which they were charged and convicted. Since accused No.2 Sakharbai w/o Narayan Dhagare and accused No.3 Ramesh @ Bandu s/o Narayan Dhagare are said to be in jail, they be released forthwith, if not wanted in any other case. Accused No.1 Narayan Vithoba Dhagare is said to be on bail and his bail bonds stand cancelled. Fine, if paid by the appellants be refunded to them. ( A.V. NIRGUDE ) ( P.V. HARDAS ) JUDGE JUDGE (vvr/criapeal74.08) 13