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Gautam Govindrao Shinde vs The State Of Maharashtra on 9 February, 2018

1 APEAL73.2002 ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.

CRIMINAL APPEAL NO. 73 OF 2002

Gautam Govindrao Shinde,
Age : 29 yrs., Occu : Service,
R/o. Police Colony, Balepir,
Beed, District : Beed. … Appellant

VERSUS

The State of Maharashtra
through Police Station Officer,
Police Station Beed City, Beed. … Respondent
……….
Mr R. V. Hange, Advocate for the appellant
Mr R. V. Dasalkar, APP for respondent/State
………….

WITH
CRIMINAL APPEAL NO. 312 OF 2002

The Station of Maharashtra
Through Police Station Officer,
Police Station, Beed City. … Appellant

VERSUS

Gautam S/o. Govindrao Shinde,
Age : 28 years, Occu : Service,
R/o. Police Colony, Balepeer,
Beed, Tq. Dist. Beed. … Respondent
(Orig. Accused)

……….
Mr R. V. Dasalkar, APP for the appellant
Mr R. V. Hange, Advocate for respondent/State
………….

CORAM : T. V. NALAWADE
A. M. DHAVALE, JJ.
DATE OF RESERVING THE JUDGMENT : 15.11.2017.
DATE OF PRONOUNCING THE JUDGMENT : 09.02.2018.

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JUDGMENT (PER A.M. DHAVALE, J.) :

1. Both these appeals are against the judgment in Sessions

Case No. 63/2001 delivered by the Addl. Sessions Judge, Beed, on

02.02.2002 whereby the accused was convicted only u/s 498A IPC

and was sentenced to suffer RI for one year and six months and to

pay fine of Rs. 1500/-, in default, RI for six months and was

acquitted u/s 302 of IPC. The aggrieved accused has preferred Cri.

Appeal No.73/2002 against conviction while the aggrieved State has

filed Cri. Appeal No. 312/2002 against acquittal.

2. The facts relevant for deciding these appeals may be stated

as under :

On 15.03.2001 at 09:45 a.m. the accused Gautam then

aged 28 years serving as a Police Constable in Police Band lodged

report at Beed town Police Station. As per his report Exh. 44, he was

residing with his wife Anita and one son and one daughter in house

No. 139, O Line, Balepir at Beed. On 14.03.2001, he returned from

his duties from Ambejogai to his house at 07:30 p.m. Then at 08:30

pm., he went to attend a Haldi programme of a daughter of his

colleague Head Constable – Bhise and returned at 10:45 p.m. His

wife, who was sleeping, got annoyed and asked him why he came

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late and slapped herself and dashed her skull against wall. He told

her she could do whatever she wanted to do. He slept with his

children on a cot while his wife was sleeping on the floor. On the

next day morning at 05:30 a.m. he saw that his wife was not sleeping

in the said room. He saw from window that she had latched the front

room both from front side as well as from back side and hanged

herself. He gave call to her but she did not respond. He narrated the

incident to his aunt Vithabai and then went to the Police Station and

lodged report. On the basis of the said report, Station Diary Entry

No. 75/2001 and Accidental Death Inquiry 10/2001 were registered.

At 08:30 p.m. deceased Anita’s father Kaluji (PW4) lodged FIR Exh.

29. As per FIR, he was a teacher working as a Kendrapramukh at

Pachegaon. He had one son and five daughters. Deceased Anita was

his daughter no. 4. In 1993, she was given in marriage to accused

Gautam at Gondi, Tq. Ambad, Dist. Jalna. Anita was blessed with

one daughter Priti and one son Shubham, aged 5 3 yrs.,

respectively, at the time of incident. Gautam was serving in Police

Department at Beed. At the time of marriage, agreed dowry in the

form of gold ring of one tola, Rs. 10,000/- cash, clothes and utensils

were presented. After the marriage, the accused Gautam developed

habit of consumption of liquor and he used to assault and ill-treat

Anita under the influence of liquor. Anita whenever used to visit her

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maternal house, used to report about such ill-treatment. PW4-Kaluji,

father of deceased Anita persuaded the accused to behave properly.

At the time of earlier Shivratri, Anita had been to him and stayed

with him for two days. That time, she had told him that the accused

used to consume liquor and used to assault her but she told him that

she would cohabit with him so that her matrimonial relations should

not be disturbed. About two days thereafter, the accused took Anita

to Beed for cohabitation. About one year before the incident, when

Anita had been to him, the accused followed her and under the

influence of liquor assaulted her with a stick and on the same day, he

brought his two children to Beed but after two days, he wrote a chit

(Exh. 28) and sent it along with his aunt Vithabai wherein he

promised that he would treat Anita well and would not harass her

and he would be responsible if anything happens to her life. Hence,

Anita was sent along with Vithabai for cohabitation. On 15.03.2001,

at 08:00 a.m. he received message from PW7 Constable Sasane that,

Anita had committed suicide by hanging. Hence, he and his family

members went to the house of the accused. They saw that Anita’s

dead body was hanging along one nylon rope of a swing and she was

in sitting posture nearer to the floor. He immediately felt that his

son-in-law must have killed her by strangulation and then made a

show that she has committed suicide. Hence, he lodged FIR.

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3. On the basis of the said FIR, crime was registered at C.R.

No. 72/01 u/s 302, 201, 498A IPC and it was investigated into by

PW10 SDPO Pathak. On the same day, spot panchanama was drawn

which revealed that, the room where the dead body was seen was

latched from inside both to the front door and to the back door. The

said room is referred as “tkGhph #e” (room with a mesh). The front

was having a wall of 3 ft. height and the upper part was made of a

wooden strips fitted in cross direction. The entry was made from the

back door by bending the latch. The panchanama shows that, there

were big gap to the front door wooden strips from which one could

insert hand for latching the door from inside. The room was having

height of 8 ft. 8 inches where the swing was tied. The dead body was

in sitting position hardly few inches above the ground. After drawing

inquest panchanama and spot panchanama, the body was sent for

post-mortem. PW6 Dr. Syed conducted the post-mortem and he gave

opinion that there was a complete ligature mark around the neck and

there were other symptoms indicating that deceased Anita met with

death due to asphyxia due to strangulation. During investigation, the

statements of some witnesses were recorded. PW8 Vilas had taken

24 photographs of the spot particularly of the dead body. The chit

Exh. 28 was seized. The investigation revealed that the accused had

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earlier made attempts to strangulate his wife and his neighbours PW2

Babasaheb and PW3 Shaila had rescued Anita twice. After

completion of investigation, the charge-sheet was submitted in the

court.

4. In due course, the case was committed to the court of

sessions. The ld. Sessions Judge, Beed framed charge at Exh. 8 u/s

302, 498A IPC (but not u/s 201 IPC). The prosecution examined 10

witnesses. The defence of the accused is that Anita was hot tempered

and she has committed suicide while he was sleeping and he came to

know about it only when he woke up in the morning. The ld. Addl.

Sessions Judge held the accused guilty for offence u/s 498A IPC but

held not guilty u/s 302 IPC. The accused was accordingly convicted

and sentenced for offence u/s 498A IPC and acquitted for offence u/s

302 IPC. Hence these two appeals one against conviction and other

against acquittal.

5. Heard Shri. R. V. Dasalkar, learned APP for State and

Shri. R. V. Hange, learned counsel for the accused.

6. Ld. APP Shri. R. V. Dasalkar has taken us through the

evidence on record. He pointed out that there is cogent, consistent

and reliable evidence of PW2 PW3 about the habit of accused of

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consuming liquor and assaulting his wife under the influence of

liquor. They have also deposed that, earlier on two occasions, the

accused had tried to kill his wife and they had rescued her. There is

also evidence of PW4 Kaluji, father of Anita, disclosing the narrations

by deceased Anita to him about the ill-treatment received by her at

the hands of her husband. He has also proved Chit Exh. 28 in which

the accused had promised to behave properly and had assured that

there would be no ill-treatment to Anita and in case anything would

happen to her, he would be responsible. He relied on the medical

evidence of Dr. Syed, which shows that it was not a case of suicide by

hanging but it was a case of strangulation. There was a ligature mark

around the entire neck which would not be caused in case of

hanging. He referred to the spot panchanama Exh. 22 duly proved

with all the details by PW8 Vilas, the photographs Exh. 41 to 41/23

proved by PW8 Vilas. He argued that the accused has committed

murder and has created a scene that deceased Anita committed

suicide. The latched doors of the room where Anita died could be

opened from outside. The ld. Sessions Judge has not properly

appreciated these material facts. It is a clear case of custodial death

and the explanation of the accused is falsified. There cannot be

suicide by a lady in sitting position. Therefore, the accused should be

held guilty u/s 302/34 IPC and should be sentenced accordingly.

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8 APEAL73.2002 ANR

7. Per contra, ld. Advocate for the accused Shri. R. V. Hange

has relied on the fact that both front and back doors of the room

were latched and entry was required to be made by bending the

latch. He also invited our attention to the fact that Medical Officer

has given several admissions which indicate that it can be a case of

suicide by hanging. He pointed out that evidence of PW2 PW3 on

material aspects is inconsistent with their previous statements and

with each other. The evidence of PW4 Kaluji, father of Anita, is also

not reliable. The conduct of the accused in immediately reporting the

matter to PW7 and then to father of Anita and then to Police is

consistent with his innocence. He supported the finding of ld. trial

Judge on the point of acquittal u/s 302 IPC but argued that there was

no material to convict the accused u/s 498A IPC. Hence, he argued

that his appeal be allowed and State appeal be dismissed.

8. The points for our consideration with our findings thereon

are as follows :

Sr.No. Point Finding

1 Whether the accused has subjected Not proved. Offence
his wife to cruelty? u/s 323 IPC only
proved.
2 (a) Whether deceased Anita met Not proved.
with a homicidal death?

(b) Whether the accused has Not proved.
committed murder of Anita?

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3 What order? The Appeal No.
73/2002 is allowed
and Appeal No.
312/2002 is
dismissed.

REASONS

9. The chronological events and the evidence on respective

points may be stated as follows :

In 1993, Anita r/o. Ahirwadi, Tq. Georai, Dist. Beed,

daughter of PW4 Kaluji, married to accused Gautam r/o Gondi, Tq.

Ambad, Dist. Jalna. After 1½ years, Anita gave birth to a daughter

later named as Priti. Further 1½ years thereafter, Anita gave birth to

a son named Shubham. Gautam was serving as a Constable and was

member of Police Band Paty at Beed. The FIR shows that, Priti

daughter of Anita was aged 5 years and son Shubham was aged 3

years in 2001. These facts are deposed by PW4 Kaluji, father of

Anita. Those are not disputed.

During cohabitation period :

10. PW4 has deposed that, the accused was not addicted at the

time of marriage but later on he started consuming liquor and was

assaulting Anita with stick. Whenever she was coming to her house,

she was telling him about the ill-treatment. He and his wife had tried

to persuade the accused to properly treat Anita. It seems that, from

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1993 to 1999 there was no serious dispute. The first incident is

deposed to have taken place in February-2000. That time, Anita had

been to her maternal house for 2-3 days. The accused came there by

consuming liquor and assaulted her with stick. PW4 has deposed this

fact consistent with his FIR. The FIR and Marathi version of PW4

shows that, accused took away his two children and that time Anita

had not accompanied him but in English version, it is wrongly stated

that Anita had gone along with him. It is well settled that, when

there is difference in Marathi and English version, Marathi version

prevails.

11. Thereafter, on 27.02.2000, the accused sent one chit

through Vithabai to Kaluji (PW4) which is at Exh. 28. PW4 Kaluji has

identified it as a chit signed by the accused. The ld. trial Judge

wrongly disbelieved this chit on assumption that Anita had gone to

her matrimonial house and there was no necessity to write such chit

but the Marathi version as well as the FIR shows that Anita had not

gone there. This chit shows that, the accused wrote that if he had

committed any mistake he apologised for the same. He gave in

writing that he would not give ill-treatment of any type to Anita and

if anything happened to her he would be responsible for the same

and Anita should be sent to her matrimonial house as Shubham and

Guddi were awaiting for her arrival. The ld trial Judge held that this

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chit has not been proved to be in the handwriting of the accused. In

cross-examination, PW4 Kaluji admitted that before Chit Exh. 28, he

had not received any letter from the accused but he had seen

handwriting of the accused whenever he had sent letters to his

friends. He could not tell to whom such letters were written. He has

denied that the letter was not in the handwriting of the accused. The

death of Anita took place on 15.03.2001 and on the very next day on

16.03.2001, this letter was produced by PW4 Kaluji before the Police.

Its production is proved by PW5 Shailendra Shinde, but he happens

to be closely related to PW4 Kaluji. It is tried to be brought on record

that this incident was not narrated in the FIR but the FIR shows that

this incident was narrated the omission is only with respect to the

specific month and year. In the FIR, it is stated that the incident took

place one year back whereas; in the evidence it has been specifically

shown to have taken place in February-2001, which is also about one

year back. The FIR discloses that such chit was written by the

accused. However, this chit was not received by PW4 by post. He

was not acquainted with handwriting of the accused. Vithabai who

allegedly brought this chit is not examined. Hence, we agree with

the finding that the chit is not proved to be written by the accused.

12. PW4 Kaluji has stated that, at the time of Shivratri just

before the incident of death of Anita, Anita came to him and stayed

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with him for 2-3 days at the time of Shivratri. That time, Anita

returned along with the accused. No incident is reported at that

time.

13. PW2 Babasaheb is neighbour of the accused and PW3

Shaila is his wife. PW2 is a Police Constable. PW3 is his wife. The

accused was their neighbour for five years. The behaviour of the

accused was well for three years and thereafter according to PW2

PW3, the accused started assaulting his wife. Whenever they used to

hear the shouts of Anita, they used to go to rescue her. They stated

that, first such incident took place in rainy season of the earlier year.

That time, the accused had tried to throttle the neck of his wife and

they had intervened. The second such incident had taken place at

the time of last Dasara at 10:30 p.m. That time again there was

quarrel between the accused and his wife and when they heard the

shouts from his house, they rushed there. The accused was assaulting

his wife and was trying to strangulate her by means of a saree but he

and his wife intervened and rescued her. The accused was

threatening to kill her. Then on 15.03.2001, they learnt about death

of Anita and found that Anita was in sitting posture with a rope of

swing around her neck. They stated that Anita was not visiting their

house nor they were visiting Anita’s house casually except for

intervening in the quarrels. These incidents were not reported by

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them to police or relatives of Anita. They stated that, these quarrels

took place on account of addiction of the accused and there was no

other reason. They felt that, Anita should be cautioned that there

was danger to her life, still they did not ask her to go to the police

and lodge the FIR.

14. PW3 Shaila has admitted that, at the time of first incident

she had personally not seen the accused throttling Anita. She also

stated that, at that time, her husband had gone to his duty. It is

contrary to the evidence of PW2 who had stated that he had also

gone along with PW3 Shaila to rescue Anita. In light of this evidence,

this incident cannot be believed. PW2 admitted that, Anita was not

coming to their house. If PW2 and PW3 had rescued her, she would

have certainly gone to them for shelter. He admitted that, he did not

talk about the said incident with Anita or the accused. He did not ask

the accused why he was beating Anita.

15. PW2 and PW3 have also deposed about the second attempt

by the accused to throttle Anita at the time of Dasara. PW2 stated

that, on that day at 10:30 p.m. he heard shouts from the house of

accused. He went along with his wife and saw that accused was

beating to Anita and had strangulated her throat by means of Saree.

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He rescued the wife of the accused and the accused was threatening

his wife. Again this incident was not disclosed to the police or

maternal relatives of Anita. Anita had not gone to the police station

to lodge report nor had she gone to her maternal house for her

safety. He did not enquire the reason for the quarrel with Anita or

the accused. PW3 Shaila has also deposed about this incident but she

stated that she came to know about the incident. She had not

personally seen the incident. Anita did not tell him that the accused

tried to throttle her nor she made enquiry with Anita. She merely

stated that, there was saree around the neck of Anita. Considering

the subsequent conduct of Anita, PW2 PW3 and the discrepancy in

their evidence inter se both these incidents of attempted throttling in

rainy season and Dasara cannot be believed.

16. It is material here to note that, there was no charge framed

against the accused for earlier attempts.

17. Regarding the ill-treatment, there is consistent evidence to

show that the accused was consuming liquor which can be accepted.

There is also evidence that, the accused used to beat Anita under the

influence of liquor. There is evidence that, the accused had assaulted

Anita at the house of her father by means of stick and, thereore, Anita

did not resume cohabitation and thereafter accused wrote chit and

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15 APEAL73.2002 ANR

offered apology and thereafter Anita had resumed cohabitation and

assured to treat her properly. The evidence however shows that the

ill-treatment was not coupled with the dowry demands and was not

for compelling her to meet with the dowry demands. There is no

specific medical evidence to show that, the ill-treatment was of such

a grave nature that Anita would have committed suicide. The

evidence however shows that, one contusion of 1 cm x 5 cm was

found on the scapula region on the dead body. There are multiple

patchy abrasions over papletical fosa over the calf of left side

posteriorly and near inguinal region. These abrasions might have

been caused during the scuffle but the contusion on the back must

have been caused by blow of some elongated object. The accused has

not given explanation for this injury which was caused to Anita in a

house where she was with the accused only. The learned trial Judge

did not consider that there were no dowry demands nor the ill-

treatment was grave enough to drive Anita to commit suicide.

Considering the above evidence, we find that the offence u/s 498A

IPC has not been proved but offence u/s 323 IPC is proved against

the accused.

18. The next material aspect is about nature of death whether

it is homicidal or suicidal.

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19. Then the material evidence is of Medical Officer PW6 Dr.

Syed Mushir and the photographs Exh. 41 to 41/23 taken by PW8

Photographer Constable Vilas. PW6 Dr. Syed has conducted PM on

15.03.2001 at 12:30 to 01:30 p.m. He found following external

injuries.

1. Evidence of two ligature marks around neck. Ligature no.1

– Transversely placed, surrounding total neck at the level of
thyroid cartilage, length 32 cms. breadth anteriorly 3 cms.
and posteriorly 1 cm.

2. Ligature mark no. 2- Placed overlapping to injury no. 1 in
the anterior aspect of neck and extending upwards on both
lateral sides towards the mastoid process, length 23 cms.
breadth 1 cm.

3. Multiple patchy abrasions over popliteal fossa skin in area
of 5 x 5 cms.

4. Multiple patchy abrasion over the calf left side posteriorly
over skin in area of 2 x 2 cms.

5. Multiple patchy abrasions near inguinal region in area 3 x
3 cms.

6. Contusion in left scapular region 1 x 5 cm. transversely.

20. On dissection of the neck, he noticed as follows :

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1. Subcutaneous place corresponding to injury no.1 shows
evidence of ecchymosis evidence of contusion of neck
muscles.

2. Subcutaneous place corresponding to injury no.2 do not
show evidence of ecchymosis. Muscle tissue is of normal
texture.

3. No evidence of fracture of hyoid bone.

4. No evidence of Cervical Vertebra Fracture.

5. Evidence of fracture thyroid cartilage and laryngeal rings.

6. Evidence of congestion of tracheal and laryngeal
mucosa.

21. He noticed following internal symptoms which are probably

same in case of hanging as well as strangulation. Congestion right

lung and on cut section found evidence of copious frothy fluid with

blood stained. Same finding was also noticed in left lung. Right

chamber of heart filled with dark coloured blood. Large vessels filled

with dark coloured blood. Abdominal walls were normal and

congestion was found at buccal cavity and pharynx. Tongue was

inside mouth.

22. He noticed mucosa containing watery yellowish fluid in the

stomach with partly digested food in small intestines.

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23. From the evidence on record and the arguments advanced,

we find following facts indicative that it might be suicide.

(i) The dead body was seen hanging in partial suspension in a
room which was latched from inside both to the front door
and back door.

(ii) There was oozing of saliva noted in the inquest
panchanama and dried crust of oozed fluid below the left
angle of mouth noted in the PM notes.

(iii) The accused has reported the matter immediately to his
friend PW7 Mr. Sunil Sasane, who has communicated the
news to the father of Anita who arrived on the spot
immediately. PW7 has stated that, the accused came to him
weeping while giving the information.

24. Following is the material evidence indicating that it was a

homicide.

(i) The complete ligature mark totally surrounding the neck of
length of 32 cm at the level of thyroid cartilage. Such
complete ligature mark is normally found only in cases of
strangulation. Besides, two overlapping ligature marks
were found.

(ii) Evidence of fracture of thyroid cartilage and laryngeal rings
and congestion of trachea and laryngeal mucosa.

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(iii) Opinion of Dr. Syed (PW6) that, the death was due to
asphyxia due to strangulation. He stated that, in case of
suicide, he refers it as death by hanging. He denied that, it
could be a suicidal death.

(iv) Hanging by partial suspension.

25. As far as the closed condition of the room is concerned,

evidence of PW1 Vilas is material. He is a spot panch. His evidence

shows that, the front room having wooden strips fixed them to criss-

cross manner was the front wall of the room and the room was

latched from inside. However, his evidence shows that, there was a

hole sufficient enough to insert a hand and open or close the latch of

the front door. He was cross-examined to show that, his evidence in

this regard is improvement but this fact is mentioned in the

panchanama and it is also visible in photograph 41/21. The accused

being a Police Constable, it is possible that he could have killed his

wife and could have made a show that she has committed a suicide

and could have come out and latched the front door from inside by

standing outside the door. Therefore, the latching of both the doors

from inside is not indicative that it must be a suicide. Though

normally person hangs by complete suspension, Medical Officer has

admitted Modi’s jurisprudence shows that suicides by partial

suspension are also committed. Therefore, finding of Anita’s dead

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body in sitting posture while hanging is not indicative of homicide

only.

26. However, the oozing of saliva noted in the inquest

panchanama and PM notes is clear indication of suicide. In Modi’s

jurisprudence, 25th Edition by Justice Kannan, Page 497, it is

observed that, dribbling of saliva is a sure sign of hanging. The

ligature mark can be both circular and oblique. If the ligature is

pressed around the neck more than once, there may be evidence of

skin waggis whenever it is carved between the ligature. PW6 Dr.

Syed Mushir has admitted this fact. We find that, the ligature was a

double layer rope of swing. The photos disclose that, one part of the

ligature was encircled around the neck and other was going upwards

from both sides of neck for suspension. When one ligature rope was

encircling the neck entirely and the other part of the rope was used

for hanging the neck, this type of marks are possible. There are two

ligature marks. The width of rope is 1 cm but the ligature is of 1 cm

to 3 cm showing overlapping of two layers of rope. The ligature

marks are transverse in direction. In the peculiar facts of this case,

the ligature mark entirely surrounding the neck about 32 cms. and

existence of 2 overlapping ligature marks is not positive indication of

strangulation alone. The existence of 2 ligature marks does not rule

out possibility of suicide. The medical evidence that,the second

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ligature mark was post-mortem cannot be accepted. Dr. Syed (PW6)

has admitted that, his opinion was based upon the fact that there was

no subcutaneous tissue damage in respect of second ligature mark

and therefore he opined that, it was post-mortem. but, he admitted

that both the ligature marks being overlapping, it was difficult to

differentiate the damage to subcutaneous tissues caused by two

ligatures.

27. We also find that, the accused had no strong motive to

commit murder of his wife. On the contrary, if he was consuming

liquor and was assaulting his wife, the wife had a reason to commit

suicide. Therefore, though this is a case of custodial death, the

circumstances found on record indicate a reasonable possibility of

suicide. There is no quality medical evidence of an expert who could

distinguish and rule out possibility of suicide. In the circumstances,

the accused deserves to get benefit of doubt. The learned trial Judge

has just held that as ligature mark of injury no. 1 was anteriorly 3 cm

and posteriorly 1 cm in width, the manual strangulation was ruled

out. We do not agree with the reasons given by him but we find that

the view taken by the ld. trial Judge in respect of murder is

reasonable and probable view. We cannot interfere with the same.

Hence, we pass the following order.

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22 APEAL73.2002 ANR

ORDER

(i) Criminal Appeal No. 312/2002 against the acquittal for

offence u/s 302 IPC is dismissed.

(ii) Criminal Appeal No. 73/2002 against conviction u/s 498A

IPC is partly allowed. The accused is acquitted of offence

u/s 498A IPC but is convicted u/s 323 IPC. He is sentenced

to suffer RI for six months and to pay fine of Rs. 500/-, in

default, to undergo further RI for 10 days.

(iii) He was in Jail from 15.03.2001 to 02.02.2002. He shall be

entitled for set off against the substantive sentence.

(iv) Part of the fine amount in excess of the fine imposed be

refunded to the appellant.

[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGE

Punde

::: Uploaded on – 09/02/2018 10/02/2018 02:41:41 :::

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