1 Cri. Appeal no.13.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 13 OF 2008 1] Madhav S/o Tukaram Kadam, Age : 25 years, Occu.: Driver, R/o Shivni, Tq. Hadgaon, District Nanded 2] Jijabai w/o Tukaram Kadam, Age 67 years, Occu.: Household, R/o as above ... Appellants V E R S U S 1] The State of Maharashtra Through Police Station Tamsa, Tq. Hadgaon, District Nanded (Copy to be served on Public Prosecutor, High Court of Bombay Bench at Aurangabad) ... Respondent ... Shri S.S. Thombre, Advocate for appellants. Shri V.D. Godbharle, A.P.P. for respondent-State. ... CORAM : P.V.HARDAS AND A.V.NIRGUDE, JJ. DATED : 8TH DECEMBER, 2009 JUDGMENT (PER : P.V. HARDAS, J.) 1] The appellants who stand convicted for offences punishable under section 498-A and 302 of the Indian Penal Code r/w. section 34 of the 2 Cri. Appeal no.13.2008 Indian Penal Code and sentenced to R.I. for three years and to pay fine of Rs.500/- in default of payment of fine to undergo S.I. for one month and imprisonment for life and to pay fine of Rs.1000/- in default of which to undergo S.I. for two months, respectively, by the Additional Sessions Judge, Nanded by judgment dated 31.12.2007 in Sessions case no. 168 of 2005, by this Appeal question the correctness of their conviction and sentence. 2] Such of the facts as are necessary for the decision of this Appeal may briefly be stated thus:- . P.W. 8 A.P.I. Khodve was attached to the Police Station, Tamsa. He had received information from one Rohidas Narale that his niece Varsha had been admitted in the hospital as froth was oozing from her mouth and after admission Varsha had died. Accordingly, A.D. no. 14 of 2005 came to be registered at the Police Station and enquiry of the said A.D. was entrusted to P.W.8 A.P.I. Khodve. In the A.D. report at exhibit 34, Rohidas Narale had stated that on 14.9.2005 dead 3 Cri. Appeal no.13.2008 body of his niece Varsha had been brought to his house and when he had enquired from the accused, the accused had informed him that since froth was oozing from the mouth of Varsha she was admitted in the hospital at Hadgaon. On way to the hospital Varsha had expired. Pursuant to the enquiry in respect of the accidental death of Varsha, P.W.8 A.P.I. Khodve went to village Digras on 15.9.2005 and drew the inquest panchanama of dead body of Varsha. Dead body of deceased Varsha was referred for post mortem examination. Thereafter, scene of offence panchanama at exhibit 28 came to be drawn in the presence of P.W.6 Baburao. On 15.9.2005, P.W.1 Shobhabai had lodged her report at exhibit 13 on the basis of which an offence came to be registered against the accused. P.W.8 A.P.I. Khodve took over the investigation of the said crime. The accused came to be arrested on the same day i.e. on 15.9.2005 at about 9:45 pm. On the next day statements of witnesses came to be recorded. During custodial interrogation accused no.1 Madhav expressed his willingness on 19.9.2005 to point out the bottle of poison which had been hidden in a heap of waste material. 4 Cri. Appeal no.13.2008 Accordingly, memorandum of accused no.1 came to be drawn at exhibit 26 in the presence of P.W.5 Ananta. Accused no.1 then produced the bottle of poison which came to be seized at seizure memo at exhibit 26-A. The seized articles and viscera were referred to the Chemical Analyser, Aurangabad through Police Constable Govind. The report of the Chemical Analyser, is at exhibit 35. Further to the completion of investigation a charge-sheet against the accused came to be filed. 3] On committal of case to the Court of Sessions, trial Court vide exhibit 8 framed a charge against the appellants for offence punishable under section 498-A r/w. 34 and 302 r/w. 34 of the Indian Penal Code. The accused denied their guilt and prosecution in support of it's case examined 8 witnesses. The entire case of the prosecution rests on the testimony of P.W.1 Shobhabai mother of deceased P.W.2 Murhari father of the deceased and P.W.3 Uttam-uncle. The prosecution also placed reliance on the seizure of the bottle of poison at the instance of the accused. The trial Court accepted the evidence of 5 Cri. Appeal no.13.2008 the prosecution and convicted and sentenced the accused as afore-stated. 4] In order to deal with the submissions advanced before us by Shri S.S. Thombre learned counsel for the appellants and learned A.P.P. for the State, it would be useful to refer to the facts of the prosecution witnesses. P.W.1 Shobhabai mother of Varsha states that Varsha was married to the appellant no.1 about 3-1/2 months prior to the incident. After marriage Varsha had come to her house on the Panchami festival and at that time Varsha had informed her that accused were demanding Rs.2000/- for repairing auto- rickshaw. Varsha had also informed her that her mother-in-law and her brother-in-law were insulting her by saying that her maternal family was not enjoying good reputation and because of marriage of Varsha the other people from the community were not mixing with the accused. Varsha further informed P.W.1 that the accused were ill treating her saying that she could not cook properly. An omnibus statement is alleged to have been made by Varsha that the accused were 6 Cri. Appeal no.13.2008 beating and insulting her. P.W.1 Shobhabai further states that after about 8-10 days the accused no.1 had come to her house and requested that arrangement for money be made. P.W.1 informed accused no.1 that she could not make any arrangement. After 15 days Varsha called P.W.1 on telephone and accordingly P.W.1 Shobhabai, her mother Janabai and one Uttam went to village Shivni i.e. to the house of Varsha. On seeing them accused no.2 Jijabai left the house. P.W.1 Shobhabai was frightened and on enquiry with Varsha, Varsha informed her that the accused had administered some poison to her through the food and Varsha complained of chest pain. Accordingly, Varsha was taken to the hospital at Hadgaon where Doctor declared her as dead. Shobhabai states that on the next day dead body of Varsha was referred for post mortem examination and funeral was performed at village Digras. After funeral she lodged her complaint at Police Station, Tamsa. In cross-examination, she has admitted that the accused were related to her prior to the marriage of Varsha. She has admitted that accused no.1 Madhav had come to the hospital at Hadgaon. She 7 Cri. Appeal no.13.2008 has stated that on the next day morning at about 8:00 a.m. dead body of Varsha was taken to Tamsa. She states that she had gone to Tamsa for lodging her complaint after the funeral. She has admitted that the funeral was performed at about 5:00 p.m. - 5:30 p.m. She has admitted that the accused no.1 owns an auto-rickshaw and Varsha was brought to her house in the same auto-rickshaw. 5] Prosecution has examined Murhari father of deceased Varsha. He states that Varsha, after her marriage, had come for the Nagpanchami festival and had informed him that her mother-in- law was stating that persons from her community were not maintaining good relations as the maternal family of Varsha did not enjoy good reputation. Varsha had also stated that her mother in law had stated that Varsha could not cook well. Varsha also stated that she was ill- treated for demand of Rs.2000/- for repairing of auto-rickshaw. He states that Varsha had also told him that she was assaulted and given insulting treatment by the accused. P.W.2 Murhari states that on 30.8.2005 accused no.1 had demanded 8 Cri. Appeal no.13.2008 Rs.2000/- from him and Murhari had told him that he would arrange for the money. He further states that on 13.9.2005 Varsha had told him on telephone that she was being assaulted and ill-treated. He states that on the next day he was informed that Varsha was serious and had accordingly gone to a private hospital at Hadgaon where he was informed that Varsha was dead. He has stated that both the appellants were sitting besides the dead body and his wife Shobhabai and his mother-in-law Janabai were already present there. He states that the dead body of Varsha was taken to his house by the accused no.1 and his brothers. He states that his wife had informed him that Varsha had stated to her that the accused had administered poison to her and therefore, she was taken in a bullock cart upto Walki and from there in an auto-rickshaw to Hadgaon. He states that he accompanied his wife to the Police Station for lodging report after the funeral was performed. In the cross-examination, he has denied to have stated at portion marked "A" in his previous statement that his wife had informed him that accused no.2 Jijabai had gone to Ashti in the morning of the day of incident. He 9 Cri. Appeal no.13.2008 has denied to have stated that at portion marked "B" in his statement that his wife told him that Varsha was alone in the house when she had reached Shivni at 2:00 pm. He has admitted that Rohidas is brother of his wife Shobhabai and Rohidas had informed about the incident to the Police on the evening of 14.9.2005. He has also admitted that dead body of Varsha was taken to Digras by accused in his auto-rickshaw. He has admitted to have met accused no.1 in the hospital at Hadgaon. He has admitted that accused no.2 Jijabai was present at his house during the night. 6] Prosecution has examined P.W.3 Uttam who is brother of P.W.2 Murhari and therefore uncle of deceased Varsha. He states that on the occasion of Panchami festival Varsha had come to Digras and had informed him that her husband and mother-in- law were ill treating her and were alleging that on account of marriage with Varsha the relations with the members from their community were strained. Varsha also told him that her in-laws were alleging that the maternal family of Varsha was not good and that Varsha could not cook 10 Cri. Appeal no.13.2008 properly. Varsha also informed him that accused were demanding Rs.2000/- for repairing of auto- rickshaw and that the accused were beating her on account of money. He states that he had accompanied P.W.1 Shobhabai to the house of accused where Varsha had informed him that the accused had administered poison to her in food. He states that Varsha was taken to the hospital at Hadgaon where she was declared dead. In cross- examination he has admitted that accused no.2 Jijabai was present when he had gone to the house of Varsha. He has also admitted that dead body of deceased Varsha was brought to Digras in the auto- rickshaw of accused Madhav. He has admitted that dead body of Varsha was at the house of P.W.1 Shobhabai for the entire night. He has admitted that the accused were present for the funeral and accused no.2 was present in the house during the night. 7] Perusal of the aforesaid evidence would clearly indicate that the accused had demanded Rs.2000/- for repairing auto-rickshaw. The other allegations against the accused certainly do not 11 Cri. Appeal no.13.2008 fall within the definition of cruelty under section 498-A of the Indian Penal Code. There is no convincing evidence that deceased Varsha was ill treated in respect of the demand for Rs.2000/- for repairing of the auto-rickshaw. Varsha was humiliated on account of the fact that she could not cook properly and that her family did not enjoy good reputation. There is vague reference to the fact that Varsha had informed her relatives that she was assaulted. Apart from such vague and omnibus allegations, no other particulars are disclosed in the evidence of these witnesses. The evidence tendered by the prosecution, according to us, is wholly insufficient for arriving at a conclusion that Varsha was ill-treated and the ill-treatment would amount to an offence within the meaning of section 498-A of the Indian Penal Code. 8] The evidence relating to death of Varsha and the administration of poison is based upon the oral dying declaration of deceased Varsha that the accused had administered poison to her. The poison which was detected in the viscera was 12 Cri. Appeal no.13.2008 imidachloprid which is an insecticide. The aforesaid insecticide has an obnoxious and repulsive smell and it is difficult to imagine that Varsha would consume food which was mixed with this poisonous substance. In any event the prosecution has utterly failed to prove any motive for the accused to commit murder of deceased Varsha. The marriage was barely 3-1/2 months old and there were no expectations which remained to be fulfilled by the parents of Varsha. The prosecution does not allege that the relations between Varsha and her husband were strained on any count. In such circumstances, it is difficult to believe that the appellants would administer poison to Varsha. 9] Prosecution has examined P.W.5 Ananta a panch witness in whose presence the accused had discovered a bottle of poison which was hidden under the heap of waste material. He is related both to P.W.1 Shobhabai as well as the accused. He has admitted that accused no.1 Madhav is an agriculturist. Assuming therefore that the accused had produced the bottle of poison which as 13 Cri. Appeal no.13.2008 per the report of the Chemical Analyser at exhibit 35 was imidachloprid and that accused was in possession of the poison but that would not prove or advance the prosecution case that the accused had administered poison. Mere availability of poison in the house would not lead to an inference that the accused had administered the poison. We do not find the alleged dying declaration of deceased Varsha to be reliable. Firstly no report came to be lodged immediately when the disclosure was made by Varsha. The report could have been lodged after Varsha had died in the evening. P.W.1 waited till the funeral was performed for lodging the report. If at that point of time, the parents of Varsha were aware that it was the accused who had administered the poison, we find it un-believable that they would permit the accused to participate in the funeral rites. The delay in lodging the F.I.R. has gone un-explained. In fact a report ought to have been lodged at the nearest Police Station immediately when Varsha disclosed that the accused had administered poison to her. As we have pointed out above, no motive exists for the accused to 14 Cri. Appeal no.13.2008 have administered the poison and mere availability of poison in the house of the accused who is an agriculturist would not lead to an inference that it was the accused who had administered the poison. 10] Thus considering the entire prosecution evidence, according to us, the prosecution has utterly failed to prove that poison had been administered to Varsha by the accused. In fact since the accused had humiliated Varsha by stating that Varsha could not cook properly and that the family of her parents was not of good reputation, possibility of Varsha committing suicide by consumption of the poison can-not be ruled out. The poison which is alleged to have been administered to Varsha was an insecticide and by the very repulsive odour the said insecticide can-not be consumed accidentally. Varsha would have noticed the obnoxious or the repulsive odour if it was mixed in food and given to her. Therefore, according to us, the possibility that Varsha committed suicide can-not be ruled out. In the face of evidence, therefore, according to us 15 Cri. Appeal no.13.2008 the appellants are entitled to be given the benefit of doubt. 11] Accordingly this Criminal Appeal is allowed. Conviction and sentence of the appellants for offence punishable under section 498-A read with 34 of the Indian Penal Code and section 302 read with 34 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 appellant no.1 Madhav S/o Tukaram Kadam is in jail he be released forthwith, if not wanted in any other case. Bail bond of appellant no.2 Jijabai w/o Tukaram Kadam stands cancelled. Fine, if paid by the appellants be refunded to them. Sd/- Sd/- (A.V.NIRGUDE, J.) (P.V.HARDAS, J.) arp