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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
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
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
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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30
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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31
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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