Gangadhar S/O Tanaji Bhong & Ors vs State Of Maharashtra on 4 August, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

Criminal Appeal No. 118 of 2001
With
Criminal Application No.4424 of 2014

1) Gangadhar s/o Tanaji Bhong,
Age 43 years,
Occupation : Agriculture,
R/o Kaudgaon, Taluka Basmath,
District Parbhani.

2) Shantabai w/o Gangadhar Bhong.
Age 43 years,
Occupation : Household,
R/o As above. .. Appellants.

Versus

* The State of Maharashtra. .. Respondent.

—-

Shri. R.N. Dhorde, Senior Advocate, for appellants.

Shri. R.V. Dasalkar Additional Public Prosecutor , for
respondent.

—-

With

Criminal Appeal No. 156 of 2001
With
Criminal Application No.4425 of 2014

Dnyaneshwar s/o Gangadhar Bhong,
Age 26 years,
Occupation : Agriculture,

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R/o Kaudgaon, Taluka Basmath,
District Parbhani.. .. Appellant.

Versus

The State of Maharashtra. .. Respondent.

—-
Shri. R.N. Dhorde, Senior Advocate, for appellant.

Shri. R.V. Dasalkar Additional Public Prosecutor , for
respondent.

—-

Coram: T.V. NALAWADE
SUNIL K. KOTWAL, JJ.

Date : 4 AUGUST 2017

JUDGMENT (Per T.V. Nalawade, J.) :

1) Both the appeals are filed against the

judgment and order of Sessions Case No.116/2000 which

was pending in the Court of Additional Sessions Judge

Parbhani. The appellant Dnyaneshwar of Appeal

No.156/2001 is convicted and sentenced for the offence

punishable under section 302 and also for offence

punishable under section 498-A read with 34 of the Indian

Penal Code. Though there was charge for offence under

section 201 of the Indian Penal Code, he is acquitted of

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that charge. The appellants of other appeal viz. Criminal

Appeal No.118/2001 are the parents of Dnyaneshwar and

they are convicted and sentenced for the offence

punishable under section 498A read with 34 of the Indian

Penal Code. Both the sides are heard. The applications are

filed by original complainant for permission to compound

offence punishable under section 498-A of I.P.C.

2) In short, facts leading to the institution of the

two appeals can be stated as follows :-

3) The deceased Godavari was sister of the first

informant Balaji Desai. Parents of Godavari hail from

village Chudawa, Tahsil Purna, District Parbhani. It is the

case of the prosecution that for about 4 years of the

marriage no ill-treatment given to the deceased by

husband and his parents but after four years they started

harassing the deceased by asking her to bring Rs.50,000/-

from her parents. The husband, Dnyaneshwar wanted to

purchase motor cycle. The appellants hail from village

Kaudgaon.

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4) The deceased used to disclose that husband

and his parents and the sister of the husband were

harassing her as the demand was not met with and she

had disclosed that they were even giving beating to her

and starving her. The first informant had given promise to

see that the amount will be given on the occasion of

Diwali festival which preceded the incident. The deceased

had again disclosed that there was ill-treatment to her as

the demand of Rs.50,000/- was not met with. She also

disclosed that she had suspicion that husband had illicit

relation with one woman. The deceased was sent to

parents’ house for delivery and after delivery when the

deceased was reached to the matrimonial house by the

first informant, the husband and his parents inquired as to

why the demand was not met with. Then they gave threats

that they would continue to give ill-treatment to Godavari.

After that incident also on many occasions the deceased

had disclosed that the husband was giving ill-treatment to

her and he had extra marital affair.

5) On 25-4-2000 at 8.00 p.m. Gangadhar Bhong,

father-in-law of the deceased visited the house of the first

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informant and informed that due to fever, illness, Godavari

had died. After that, the first informant went to the

matrimonial house of Godavari with many persons of his

village. The first informant and the persons from his

village noticed that there was ligature mark surrounding

the neck of the dead body of Godavari indicating that

somebody had strangulated her. The dead body was found

kept in sitting position in a room of the ground floor of the

building. When the first informant and others inquired

with her husband and his relatives about the ligature

mark appearing on the neck, the husband and his parents

admitted that they had finished Godavari by strangulation.

In the mean time, brother of Godavari gave AD report to

the police under section 174 Cr.P.C. in Hatta police

station.

6) Police of Hatta Police Station visited the house

of the accused from Kaudgaon and they prepared inquest

panchanama. The dead body was referred for post mortem

examination. The spot panchanama was prepared in

presence of panch witnesses and the spot was shown by

accused No.1. A rope prepared from bag of fertilizer was

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found hanging above the cot which was present in the bed

room of Dnyaneshwar. Pieces of bangles of the deceased

were found there. A map of the room showing the location

of the cot and the place where rope was hanging was

prepared and it was annexed with the spot panchanama.

The doctor who conducted post mortem examination gave

opinion that, it was a case of acute respiratory arrest due

to asphyxia due to strangulation. Ligature mark was found

encircling the neck. There was fracture of hyoide bone

and fracture of cervical vertebra Nos.1 and 2 (C-1 and C-

2). Post mortem was conducted on the dead body on 26-4-

2000 between 1.45 p.m. and 2.45 p.m.

7) Balaji (PW 3), brother of the deceased, gave

report against the accused on 26-4-2000 and Crime at CR

No.53/2000 came to be registered for the aforesaid

offences at 19.30 hours. The accused came to be arrested.

During course of investigation the husband, Dnyaneshwar

gave statement to police on 28-4-2000 under section 27 of

the Evidence Act and on that basis one wire of electric

iron was recovered from Almira of Dnyaneshwar and it

came to be seized under panchanama. Statements of the

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relatives of the deceased on parents’ side and of the

neighbours came to be recorded and after completion of

investigation charge sheet came to be filed against the

appellants and also against the sister of Dnyaneshwar for

the aforesaid offences. After committal of the case charge

was framed for the aforesaid offences. All the accused

pleaded not guilty. The prosecution examined in all 9

witnesses to prove the offences. The accused took defence

of total denial. The trial Court has believed the medical

evidence, opinion given by the doctor and as the incident

took place in the bed room of Dnyaneshwar he is held

guilty of the offence of murder. Dnyaneshwar and his

parents are convicted for the offence punishable under

section 498-A read with 34 IPC also. Sister of

Dnyaneshwar came to be acquitted as she was married

and she was living in her matrimonial house.

8) The learned Senior Counsel for the appellant

husband submitted that the medical evidence given by

doctor who conducted post mortem examination has

created other probability like death took place due to

hanging and due to existence of such probability the trial

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Court ought not to have convicted the husband for offence

of murder. The learned Senior Counsel took this Court

through the evidence given by the close relatives of the

deceased on parents’ side including Balaji and submitted

that the case of demand of Rs.50,000/- for purchasing

motor cycle for Dnyaneshwar was not probable in view of

the evidence on record. He submitted that the

circumstance that parents were having separate room is

not considered by the trial Court and there was no

question of convicting the parents of Dnyaneshwar even

for offence punishable under section 498-A of Indian Penal

Code. The learned Senior Counsel submitted that

material witnesses, neighbours of the matrimonial house

who had opportunity to see the dead body in hanging

condition are not examined and due to that adverse

inference needs to be drawn against the prosecution. On

the other hand, the learned Additional Public Prosecutor

submitted that the incident took place in the bedroom of

Dnyaneshwar and the circumstances mentioned in the

spot panchanama and the medical evidence are sufficient

to infer that false show was created by the accused

persons of hanging. Learned APP submitted that only

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Dnyaneshwar had the opportunity to commit the murder

and not much can be made out due to circumstance like

absence of mark of resistance by the deceased who had

delivered a child few months back. Learned APP

submitted that Dnyaneshwar, youngster aged about 26

years committed the murder and the possibility that the

deceased could not have thought of such act from

Dnyaneshwar needs to be kept in mind.

9) The prosecution examined Vyankatesh, Medical

Officer (PW 2) who conducted post mortem examination.

He has deposed that rigor mortis was absent in whole

body and there was no decomposition. Post mortem

lividity was present over the back, below rib region on

READ  Ranjana Vinod Kejriwal, Age 42 -vs- Vinod Babulal Kejriwal, Age About on 13 August, 2009

both sides, buttocks, thighs though it was less prominent

over legs, P.M. lividity was present on some lower part of

abdomen and genital area also. It needs to be kept in

mind that the dead body was shifted from the house of the

accused on 26-4-2000 though the incident took place on

25-4-2000 in the matrimonial house. There was semi

digested food material and fluid about 100 – 150 cc in the

stomach.

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10) The evidence of the doctor Vyankatesh (PW 2)

shows that he noticed ligature mark encircling neck and

there was fracture of hyoide bone. The evidence also

shows that there was fracture of cervical vertebra first

and second. These injuries were ante mortem in nature

and on that basis he gave opinion and cause of death as

acute cardio respiratory arrest due to asphyxia due to

strangulation. The post mortem report at Exhibit 19 is

duly proved in the evidence of this witness.

11) Article 11, ligature material, wire of electric

iron which is shown to be recovered from accused No.1,

husband, was shown to the doctor and the doctor has

given opinion that ligature marks found on the neck can

be caused by such article. Specific opinion on that was

sought by the investigating agency and the opinion given

by the doctor is proved as Exhibit 20. Specific suggestion

was given to the doctor by defence that aforesaid injuries

can be caused due to hanging but this suggestion is

denied.

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12) Learned Senior Counsel took this Court

through the extensive cross examination of Vyankatesh

(PW 2) made by the defence counsel. During his cross

examination the photographs of ligature marks were

confronted to him. From the photographs it was

suggested to him that the ligature mark was not

completing the circle in photograph. He admitted that but

the fact remains that as per his evidence, when he

examined the dead body he found that the ligature mark

was completing the circle. His attention was drawn to

some observations made by expert like J.N. Wilson in a

book to suggest that such injury can be caused due to

hanging. The evidence given by the doctor shows that he

was very certain on his opinion that the injury found on

the neck can be caused only due to strangulation and that

include fracture of C-1 and C-2. His evidence shows that

there was no mark of knot of ligature on the neck. During

his cross-examination it is brought on the record that in

the post mortem report he has not noted any injury to the

muscle of the neck. He has admitted fracture of larynx

and trachea further confirm strangulation. Some

hypothetical suggestions were given to the doctor that

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when there is strangulation, injuries are caused on the

face and other parts of body. It is only probability but the

medical officer is not expected to say something on the

basis of hypothetical questions. Facts of each and every

criminal case are different as the victim is different and

the offender is also different. Offering of resistance

depends on many circumstances which include

opportunity also. In the evidence of the doctor it is

suggested to him that he has not mentioned rupture of

carotid artery which is a normal feature of strangulation.

In standard post mortem report there is column of large

vessel and it is suggested that under that head he was

expected to mention artery also. Though there are some

answers from the doctor showing that he had not

completely filled the form to note each and every aspect

of the observations made by him, his evidence shows that

he was very much sure about the cause of death which is

quoted above. When there is medical evidence, which is

opinion evidence on the cause of death, it is up to the

Court to decide as to whether the opinion needs to be

accepted or not to be accepted. The trial Court has

accepted this opinion. Further, there are other

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surrounding circumstances which need to be considered

while deciding as to whether the opinion needs to be

accepted or not.

13) The defence has not disputed that the incident

took place in the room which was in the house of accused

and her husband was using it as bedroom. Nathu (PW 4),

a panch witness on the spot panchanama, has given

evidence for proving the document of spot panchanama

(Exhibit 27). He has deposed that accused Dnyaneshwar

had shown the place. He has given evidence on the

articles found in the room. The panchanama at Exhibit 27

shows that the location of the articles is shown in the map

which is annexed with the panchanama. The room was

situated on the extreme western side of the building and it

was on the first floor. The size of the room was 16.5 ft x

8.5 feet. Roof the room was at the height of 9 feet. The

room had two window towards eastern side and the

entrance door of the room was opening towards the

terrace situated on southern side. There was one more

window in the western wall of the room. The bed, cot was

found on extreme north side. Above the bed, there was a

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fan fixed in the roof and there was one hook fixed in the

roof of 3 inches length above bed. When panchanama was

prepared, one rope prepared by using polythene bag of

fertilizer was hanging at the hook and the length of the

rope was 35 inches. The lower portion of the rope was

found cut at two places. The distance between bedding

kept on the cot and the roof, ceiling was 8 feet. There was

one small box having 11 inches height by the side of the

cot. Pieces of green bangles and red bangles were lying

in the room near the cot. By the side of the cot, one piece

of rope of aforesaid substance having length of 3 inches

was lying. One kitchen cutter, (foGh) was found to be kept

in one widow situated on western side. One saree was

lying on the cot along with blouse. These articles were

taken over under the panchanama.

14) In the inquest panchanama at Exhibit 24 the

height of the deceased was recorded as 5 feet. The

evidence of spot panchanama shows that from the bed

kept on the cot the hook was at a distance of around 8

feet. There was no stool or chair in the room which could

have been used for reaching upto the hook where the rope

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was found to be tied. Further, the photographs of the

room show that one knot was on upper side and below

that there were two parts of the rope. These photographs

are proved in the evidence of Abdul Nabi (PW 8). Cross

examination of the photographer shows that the evidence

is not seriously disputed.

15) The aforesaid circumstances appearing in the

spot panchanama, inquest panchanama and the

photographs do not explain as to how without the help of

anybody or without having article like stool or chair, the

deceased could have reached the hook for tying the rope

there. Considering the length of the piece of the rope

lying on the floor and the aforesaid circumstances it

becomes difficult to believe that the deceased had

prepared circle of the rope having knot after tying the

rope on the roof and then she had put her neck into that

circle. If the length of the rope which was 35 inches from

the hook is considered, virtually no distance would have

been left between the bed kept on the cot and the feet of

the deceased considering her height of 5 feet.

Unfortunately police did not send these pieces of rope and

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also the ligature material recovered at the instance of the

husband on the basis of statement given under section 27

of the Evidence Act to C.A. office to find out as to which

ligature material was actually used. It can be said that the

investigation was not made competently but that

circumstance cannot go to the root of the matter and it is

duty of the Court to find out the truth on the basis of

whatever evidence is made available.

16) Defence has suggested many things to the

witnesses and the learned Senior Counsel also argued on

the basis of some suggestions given to the investigating

officer and submitted that the incident had taken place

prior to 4.30 p.m. on that day and in the statements given

under section 313 of the Cr.P.C. the accused Nos.1 and 2

have contended that they were not present in the house

at the relevant time and only accused No.3, mother of the

husband was present in the house at the relevant time.

The evidence and the record show that the accused did

READ  Rajesh Sharma vs The State Of Uttar Pradesh on 27 July, 2017

not take steps to inform the police about this unnatural

death and AD was registered on the basis of report given

by the brother of the deceased on the night between 25

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April 26 April 2000. There is no plausible explanation on

these circumstances and there is also no explanation as to

why the dead body was brought down to the ground floor.

17) Defence of the accused that the rope was cut at

the neck by using cutter (foGh) which was found in the

aforesaid room also does not appear to be probable in

nature. The circle itself is shown to be cut which one can

seen from the photograph. This is again improbable

defence.

18) The defence taken by the accused in the

statement given under section 313 of the Cr.P.C. shows

that accused No.3, mother of the husband, noticed that

door of the aforesaid room was wide open. If the deceased

had intention to commit suicide, in ordinary course, she

would have closed the door first from inside by putting

latch on it and then she would have committed suicide.

This is again improbability in the story given by the

defence.

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19) For giving evidence on motive the prosecution

has examined Balaji (PW 3), first informant. He has given

evidence that the marriage had taken place in the year

1995 and there was ill-treatment to the deceased as the

accused were asking the deceased to bring Rs.50,000

from the house of her parents for purchasing motor cycle

for accused No.1, husband. He has given evidence that

the deceased used to disclose that accused persons were

even giving beating to her on this count. He has given

evidence that she had then disclosed that the husband had

illicit relation with a woman and she had recently realised

it. At that time she was pregnant.

20) Balaji (PW 3) has given evidence that after

delivery of second child they had reached deceased

Godavari to the matrimonial house and at that time

accused had made inquiry as to why the amount of

Rs.50,000 which was demand was not brought. Thus,

evidence is given on ill-treatment given on two grounds. In

the F.I.R. at Exhibit 23 there was mention of both grounds

and so to that extent there is corroboration of the F.I.R.

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21) In the cross examination Balaji (PW 3) has

given some vital admissions in favour of the defence. He

has admitted that the land of the accused person is

irrigated one, family of the accused owns tractors and

husband of the deceased was already having a Hero

Honda motor cycle. He has admitted that accused used to

supply sugarcane to Basmat Sugar factory and the

financial condition of the family of accused was sound. He

has admitted in the cross examination that, on 18-2-2000

accused Gangadhar had transferred amount of Rs.59,800

by account transfer in the name of his father from one

bank from village Yerendeshwar. The transfer took place

on 25-4-2000. In view of the aforesaid vital admissions it

does not look probable that there was demand of

Rs.50,000 made by accused persons and they wanted to

purchase motor cycle for accused No.1, by using that

amount. However, the second ground that the husband

had illicit relation with other woman remains there.

22) In the F.I.R. Balaji had mentioned that false

information was given to them that Godavari had died due

to fever, illness and accordingly he gave substantive

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evidence in the Court. This evidence is of no use to the

prosecution as admittedly AD report was given by Umrao,

a brother of the deceased to inform that deceased had

committed suicide by hanging herself and that information

was given to them by Gangadhar. This document at

Exhibit 41 can be used by both the sides. On one hand,

this document shows that information was not supplied to

the effect that deceased had died due to the fever but on

the other hand this document shows that there was

information that the deceased had committed suicide by

hanging herself. In Exhibit 41 suspicion was expressed by

mentioning that no explanation was given by the accused

as to why dead body was taken down from the place of

hanging by the accused. This circumstance is brought on

record by the defence. This circumstance shows that after

seeing the dead body, the relatives of the deceased on

parents’ side had rushed to the police station to inform

about unnatural death and they were not sure about the

cause of death.

23) Prosecution has examined Gayabai, mother of

the deceased, to give evidence on the ill-treatment which

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the deceased was receiving and her evidence is similar to

the evidence of Balaji. Similar evidence is there of other

person like Lalji (PW 6) who is from the side of the first

informant. They are consistent on the point that the

deceased had disclosed that her husband had illicit

relation with one woman.

24) In the statement under section 313 of the

Cr.P.C. accused Nos.1 to 3 admitted that they were living

in the same wada but the room where the incident took

place was in the use of Dnyaneshwar and the deceased as

their bedroom. Due to this circumstance it was necessary

for accused No.1 to explain as to what had happened on

that date. When there is medical evidence leading to

inference that it is homicidal death, there was

strangulation, accused No.1 husband needs to say as to

who other had the opportunity to do such act. The

deceased had delivered second child only 2 to 3 months

prior to the date of the incident. She was having two

issues including the baby aged about 2-3 months. There is

no explanation as to who was taking care of both the kids

at the relevant time. These circumstances which are

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unexplained confirm more the case of the prosecution

that it is homicide. In such a case provisions of sections

106 and 114 of the Evidence Act need to be used. The trial

Court has considered and used these provisions.

25) There is one more circumstance like recovery

of ligature material on the basis of statement given by

accused No.1. Evidence is given on this circumstance by

examining Madan (PW 1), a panch witness. He has given

evidence on the memorandum of statement given by

accused No.1 to police and it is proved at Exhibit 16. He

has given evidence that accused then produced from steel

cupboard one wire generally used for electric iron, press.

This article No.11 was shown to the doctor and evidence

in that regard is already discussed. The panchanama of

seizure of this article, ligature material is proved at

Exhibit 17. In the cross examination, it is suggested to the

witness that no attempt was made to find out the iron,

press. The witness has stated that there was such iron

press in the room when recovery was made. This

circumstance can be used for corroboration though only to

some extent. However, non recovery of ligature material

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in such case cannot be treated as fatal. It is already

observed that many a times investigating officer acts

incompetently and in some cases may do it under the

influence of somebody to help the accused. It is already

observed that the ligature material was not sent to the

C.A. office. Absence of such evidence cannot go to the root

of the matter and if remaining evidence is sufficient, the

Court can safely convict the accused if provision of

sections 106 and 114 of the Evidence Act can be used

against him. False information given by the accused can

also be used as one relevant circumstance in such a case

by using provisions of Sections 3 and 106 of Evidence Act.

26) Learned Senior Counsel has placed reliance on

some reported cases in support of his various

submissions. He placed reliance on the case reported as

(2016) 10 SCC 519 (Jose v. Sub Inspector of Police) . In

this case the Apex Court gave benefit of doubt to the

accused when doctor’s evidence showed that there was

absence of characteristics attributed to homicidal death

by strangulation. In the said case the Apex Court

considered the circumstance that there was no evidence

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from prosecution side to show that the accused was

present in the house due to which provision of section 106

of the Evidence Act could have been used against him.

Facts and circumstance of each and every criminal case

are always different. The medical evidence of the present

case is already discussed by this Court. The statements

given under section 313 of the Cr.P.C. by accused Nos.1

and 2 are vague. Similarly there are other circumstances

READ  Allama Prabhu vs The State Of Karnataka on 26 February, 2014

against the accused in the present matter which are

already quoted.

27) In the case reported as (2015) 7 SCC 178

(Tomaso Bruno v. State of U.P.) when the Court formed

opinion that some important evidence was withheld by the

prosecution the benefit of the circumstance was given to

the accused by drawing adverse inference. In that case

provision of section 106 of the Evidence Act was also

discussed and it was observed that it needs to be proved

by the prosecution that the accused was in a position such

that he could have special knowledge of the fact. A

foreigner was involved and due to that circumstance the

Court further held that it was not possible for foreigner to

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lead evidence on alibi. Some observations are made with

regard to expert testimony given under section 45 of the

Evidence Act. The discrepancies in the medical evidence

were also discussed. Thus many points were involved in

the said matter which were required to be considered in

the said matter. This Court has already observed that facts

and circumstances of each and every criminal case are

always different. The Court is expected to decide the case

on the basis of material available before it. In the present

matter so far as the medical evidence is concerned it also

needs to be kept in mind that the dead body was in the

house of the accused from the time of death till next day

morning. This circumstance needs to be kept in mind

while considering the challenge to the medical evidence.

The trial Court found no reason to disbelieve the doctor

and on this point this Court does not want to divert from

the finding given by the trial court for the reasons already

given.

28) The learned Senior Counsel for the accused

placed reliance on some reported cases like (2000) 3 SCC

454 (Rang Bahadur Singh v State of U.P.); AIR 1978 SC

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59 (
Bir Singh v. The State of U.P.) ; (Page 29) and, AIR

1954 SC 51 (Habeeb Mohammad v. State of Hyderabad).

He submitted that the prosecution ought to have

examined immediate neighbours who must have rushed to

the spot as per the contention made by accused No.3 in

her statement given under section 313 of the Cr.P.C. and

as per the admission given by the investigating officer

that he had recorded statements of some neighbours. On

this, it needs to be observed that the accused had

removed the dead body from the said room. In view of the

circumstances of this case and when accused wanted to

prove that it is a case of hanging and not strangulation as

per the material available with the prosecution, it was

necessary or the defence to give explanation and also lead

evidence on their case. They could have also examined the

neighbour if they had really removed the dead body from

the place of hanging. It is already observed that the said

defence does not appear to be probable in nature. When

provisions of sections 106 and 114 of the Evidence act can

be used against the accused, after giving some evidence

or making out a prima face case by the prosecution and

when inference is possible on the basis of unrebutted

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evidence given by the prosecution against the accused, it

becomes necessary for the accused to lead some evidence

and explain the things. So, this Court holds that the

proposition made in the aforesaid cases cannot be

disputed but in view of the facts of the present matter the

accused ought to have examined witnesses and so blame

cannot be put on the persecution for it.

29) The learned Senior Counsel has placed reliance

on following cases.

(1) AIR 2008 SC 1260 (Babu Ram v. State of Punjab);

(2) AIR 2005 SC 2110 (Hem Raj v. State of Harayana);

(3) (2002) 6 SCC 470 (Harijana Thirupala v. Public
Prosecutor.

Learned Senior Counsel submitted that there is evidence

of only interested witnesses with the prosecution and so,

the trial Court ought to have given benefit of doubt. The

facts of the cases cited supra were totally different. When

use of provisions of section 106 read with 114 of the

Evidence Act becomes necessary, the Courts need to use

different approach. In such cases only the accused

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persons are the witnesses to the incident and the relatives

of the victim who hail from other place can only imagine

the things on the basis of the incident and they are

required to leave everything to the investigating agency.

In such cases where there is no possibility of direct

evidence, the investigating agency can collect evidence on

some circumstances. Neighbours of accused generally do

not help police or the relatives of victim who hail from

other village. Due to these reasons in a case like present

one not much importance can be given to the

circumstance that no independent witnesses are examined

by the prosecution. This circumstance cannot make other

evidence weak.

30) The learned Additional Public Prosecutor

placed reliance on two cases like (1) Criminal Appeal

No.425/1996 (Thaman Kumar v. State of Union Territory

of Chandigarh) (Supreme Court); and (2) Criminal Appeal

No.682/1992 (The State of Maharashtra v. Laxman Ganti)

(Bombay High Court). In both the cases there was need to

use provision of section 106 of the Evidence Act and the

importance of this provision is discussed. This Court had

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occasion to consider similar defence in the case cited

supra and in similar circumstances it was held that

strangulation was proved. This Court has already

observed that it is opinion evidence of expert and the

Court is expected to take decision on opinion not only on

the basis of the fact noted by the expert in his report but

also on the basis of surrounding circumstances. Every

material which can be considered as evidence under

section 3 of the Evidence act needs to be considered by

the Court subject to condition of relevancy of such

material. This Court has discussed the surrounding

circumstances and due to that there is no alternative than

to hold that the evidence as against husband, accused

No.1 is sufficient to prove the offence of murder. The trial

Court has held that provision of section 201 IPC cannot be

used against the husband considering other probability,

removal of the dead body by others, this Court does not

want to disturb that finding.

31) The evidence given as against the parents of

the husband shows that the evidence is not convincing in

nature. The parents of the husband could not have been

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convicted for offence punishable under
section 498-A of

the IPC for the reasons already recorded. There was no

necessity to make demand of such amount by them when

they had given some amount to the family of the first

informant few months prior to the date of the incident.

The financial condition was quite sound and so the case of

demand of Rs.50,000/- against the parents of the husband

and also the husband cannot be believed. However, in

view of evidence on other motive and circumstances of the

case, the husband knows the reason behind his act. Even

absence of motive cannot make other circumstances

weak. In the result, the appeal filed by the husband,

Criminal Appeal No.156/2001, needs to be partly allowed

and the appeal filed by the parents viz. Criminal Appeal

No.118/2001 needs to be allowed. In result, following

order :-

32 (a) Criminal Appeal No.156/2001 is partly allowed.

The judgment and order of the conviction given by the

trial Court to appellant Dnyaneshwar for offence under

section 498-A of the Indian Penal Code is hereby set

aside. The appeal in respect of conviction and sentence

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given for offence of murder of Godavari punishable under

section 302 of Indian Penal Code is however maintained.

The appeal to that extent stands dismissed. The appellant

Dnyaneshwar is to surrender to bail bonds for undergoing

the sentence.

(b) Criminal Appeal No.118/2001 is allowed. The

judgment and order of conviction of the trial Court against

the appellants for offence punishable under section 498-A

read with 34 of the Indian Penal Code is hereby set aside

and they stand acquitted of the offence punishable under

section 498-A read with 34 of Indian Penal Code. Fine

amount if any deposited by these accused is to be

returned to them. Similarly fine amount if any deposited

by Dnyaneshwar in respect of sentence given for offence

punishable under section 498-A IPC is to be returned to

him. The bail bonds of the appellants of Criminal Appeal

No.118/200 stand cancelled.

(c) Criminal Application No.4424 of 2014 and

Criminal Application No. 4425 of 2014 are disposed of.

Sd/- Sd/-
(SUNIL K. KOTWAL, J.) (T.V. NALAWADE, J.)

rsl

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