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H vs H on 28 February, 2014

Bombay High Court H vs H on 28 February, 2014Bench: S.S. Shinde, V.M. Deshpande

1 525.11crapl

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 525 OF 2011

1. Bappasaheb s/o Bhaskar Aware, Age: 24 years, Occ: Agri.,

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2. Bhaskar s/o Tukaram Aware, Age: 59 years, Occ: Agri.,

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Both R/o. Malewadi, Tq. Jamkhed, ig

District Ahmednagar. …APPELLANTS VERSUS

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The State of Maharashtra. …RESPONDENT …

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Mr. N.S. Ghanekar, Advocate for appellants. Mr. K.M. Suryawanshi, A.P.P. for respondent/State. ba

CORAM: S.S. SHINDE, &

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V.M. DESHPANDE,JJ.

RESERVED ON : 14/02/2014

PRONOUNCED ON: 28/02/2014

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JUDGMENT : [ PER : S.S. SHINDE, J.] . This appeal is filed challenging the judgment and ::: Downloaded on – 11/03/2014 22:53:31 ::: 2 525.11crapl order passed by the Additional Sessions Judge, Beed in Sessions Case No. 44 of 2010 on 04/07/2011. Originally rt

there were five accused persons, who faced the trial. Out of ou

them, original accused No. 1 Bappasaheb Bhaskar Aware i.e. C

appellant No.1 herein and original accused No. 3 Bhaskar Tukaram Aware i.e. appellant No.2 herein, (for the sake of h

brevity hereinafter they will be referred as ‘the appellants’) are ig

convicted for the offence punishable under section 302 read with Section 34 of the Indian Penal Code and are sentenced to H

suffer Rigorous Imprisonment for life and to pay fine of Rs. y

1000/-. In default of payment of fine,they shall undergo ba

further rigorous imprisonment for six months. Both the appellants are further convicted for the offence punishable om

under Section 304-B read with Section 34 of the Indian Penal Code and are sentenced to suffer Rigorous Imprisonment for B

eight years and to pay fine of Rs.1000/-, in default of payment of fine, they shall further suffer R.I. for six months. They are also convicted for the offence punishable under ::: Downloaded on – 11/03/2014 22:53:31 ::: 3 525.11crapl Section 498-A read with Section 34 of the Indian Penal Code and are sentenced to suffer Rigorous Imprisonment for three rt

years and to pay fine of Rs.1000/-, in default of payment of ou

fine, they shall undergo further R.I. for six months. They are C

also convicted for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code and are h

sentenced to suffer Rigorous Imprisonment for two years and ig

to pay fine of Rs.1000/-, in default of payment of fine, they shall undergo further R.I. for six months. The Sessions Court H

ordered that, all the sentences shall run concurrently. The y

Sessions Court also ordered that, they are entitled for set off ba

under Section 428 of the Code of Criminal Procedure for pre- detention period in respect of appellant No.1 from om

25/12/2009 to 04/07/2011 and in respect of appellant No.2 from 25/12/2009 to 23/04/2010. The Sessions Court B

acquitted remaining original accused No. 2 Ramhari Bhaskar Aware, accused No. 4 Suvarna Dattatraya Wagh and accused No. 5 Kalpana Uttreshwar Shinde of the offence punishable ::: Downloaded on – 11/03/2014 22:53:32 ::: 4 525.11crapl under Sections 302, 304-B, 498-A and 201 read with section 34 of the Indian Penal Code.

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2. The prosecution case, in nutshell, is as under : C

. Original accused Nos. 1 to 3 are resident of h

Malewadi and accused Nos. 1 and 2 are brothers interse. ig

Accused Nos. 1 and 2 are sons of accused No. 3, while accused Nos. 4 and 5 are daughters of accused No. 3. H

Deceased Sangita was daughter of PW-2 Dashrath Babasaheb y

Yede. The marriage between deceased Sangita and appellant ba

No.1 Bappasaheb was settled and solemnized on 12/06/2009 at Vaijala by giving dowry of Rs. 1,00,000/- alongwith one om

Tola gold and daily utensils as per Hindu rites and custom. Huge expenditure of Rs.3,00,000/- was done at the instance B

and pressure of the accused in the said marriage though PW-2 Dashrath was not in a position to make the said expenditure.

::: Downloaded on – 11/03/2014 22:53:32 ::: 5 525.11crapl . After one month of the marriage, PW-2 Dashrath rt

went to Malewadi. Appellant No. 1 Bappsaheb expressed ou

displeasure over arrangement in the marriage and also told C

that due respects were not given in the said marriage. The appellant No. 1 demanded Rs. 1,00,000/-. PW-2 Dashrath h

told that, he was poor and could not satisfy his demand. At ig

that time, accused No. 2 Ramhari and sister in laws i.e., accused No. 4 Suvarna and accused No. 5 Kalpana assaulted H

deceased Sangita in his presence by fist and kick blows. y

Appellant No.1 Bappasaheb cought hold collar of PW-2 ba

Dashrath, locally called as “”गचुरे धरल”े and asked PW-2 Dashrath to give divorce. Appellant No.1 Bappasaheb also om

told that, he did not need his daughter. She was not good looking, therefore, he did not like her. He asked PW-2 B

Dashrath to bring Rs.1,00,000/-, and in case amouoint is not given, gave threat to Dashrath that, he would see what can be done.

::: Downloaded on – 11/03/2014 22:53:32 ::: 6 525.11crapl . PW-2 Dashrath came back to his village and rt

narrated the incident to PW-5 Chhagan. During the Diwali ou

festival of 2009, PW-2 Dashrath and PW-5 Chhagan went to C

Malewadi and met accused and requested them to give proper treatment to his daughter Sangita. He expressed that, he h

could not pay money due to poor financial position. Accused ig

were not in a position to listen to their request. Deceased Sangita also told him that, she had severe trouble at the H

hands of the accused. She was not given proper treatment. y

She was always subjected to starvation by making demand of ba

money. PW-2 Dashrath gave assurance to deceased Sangita and returned to his village.

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. Thereafter, after lapse of one month deceased B

Sangita came with her cousin father in law namely Dnyanoba Aware to Vaijala. On inquiry with her, she told that, she was beaten by all accused persons for not bringing ::: Downloaded on – 11/03/2014 22:53:32 ::: 7 525.11crapl Rs. 1,00,000/-. She was told by the accused that, unless Rs. 1,00,000/- are brought, she would not be allowed to rt

cohabit with the accused. She was also given threat that, if ou

amount is not brought, they would kill her. She narrated all C

these things in presence of PW-4 Sitaram and wife of PW-2 Dashrath. Sangita stayed with PW-2 Dashrath for 10 to 12 h

days. Thereafter, PW-2 Dashrath, PW-5 Chhagan and PW-4 ig

Sitaram took Sangita to the house of accused, and requested accused to give proper treatment to her and then left Sangita H

in the company of accused and went to their village. y

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. On 22/12/2009 phone message was received by Kailas Yede in his grocery shop that, Sangita was missing. om

Therefore, PW-2 Dashrath alongwith PW-4 Sitaram and PW-5 Chhagan, Kailas Nivrutti, Pandit Shamrao went to Malewadi. B

They reached Malewadi at 11-30 in the night. Appellant No.1 Bappasaheb told that, Sangita left house at 11-00 a.m. for collecting grass and thereafter she did not return. On ::: Downloaded on – 11/03/2014 22:53:32 ::: 8 525.11crapl following day, extensive search was undertaken but in vain. On 24/12/2009 appellant No.1 Bappasaheb lodged complaint rt

with Jamkhed police station about missing of Sangita. On ou

24/12/2009 Patoda police station informed that, in C

Yewalwadi area in the field of Sahebrao Vithal, dead body of lady was floating on the water in the well. Accordingly, h

accused and PW-2 Dashrath alongwith PW-5 Chhagan and ig

PW-4 Sitaram went to the spot and identified that, it was dead body of deceased Sangita.

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. It is further case of the prosecution that, Patoda ba

police station received information from Sahebrao Vithal Nagargoje vide Exhibit-68 that, dead body was floating in his om

well at village Yewalwadi. At about 10-00 a.m. A.D. No. 66/2009 was registered under Section 174 of the Code of B

Criminal Procedure by Head Constable Manjare. Investigation was given to PW-6 Rajabhau Landge. PW-6 Rajabhau Landge and PW-7 Suresh Budhwant in the capacity ::: Downloaded on – 11/03/2014 22:53:32 ::: 9 525.11crapl of Police Inspector went to the spot. Dead body was taken out of the well. After taking photographs in the well, photographs rt

were also taken outside the well of the dead body. Inquest ou

panchnama vide Exhibit-57 was drawn. Spot panchnama C

vide Exhibit-56 of the well in question was also drawn. PW-6 Rajabhau Landge after registration of the crime, handed over h

investigation to PW-7 Suresh Budhwant. ig

. PW-7 Suresh Savleram received the complaint H

which was reduced into writing by his writer. Crime No. y

117/2009 was registered by him. He took the investigation ba

and recorded the statements of witnesses and arrested the accused. Letter was issued to the Doctor vide Exhibit-77 as om

to when death occurred. Doctor opined that, death of deceased Sangita occurred before 36 hours to 72 hours vide B

Exhibit-65. The viscera was sent to Chemical Analyser with carrier PW-6 Rajabhau alongwith letter vide Exhibit-72. ::: Downloaded on – 11/03/2014 22:53:32 ::: 10 525.11crapl . PW-7 Suresh also issued letter to Revenue Circle Inspector for drawing map by issuing letter at Exhibit-38. rt

Accordingly, map at Exhibit-69 was prepared. The 7/12 ou

extract of the land where dead body was found was collected C

vide Exhibit-70. 7/12 extract of the land of accused was also collected vide Exhibit-71. PW-7 Suresh Budhwant also h

received C.A. report vide Exhibit-66 which discloses no ig

poison. After completing investigation, PW-7 came to the conclusion that, accused have committed offence punishable H

under Section 302, 304-B, and 498-A read with section 34 of y

the Indian Penal Code. He further came to the conclusion ba

that, accused have also committed the offence so as to disappear the cause of crime and threw dead body of om

deceased Sangita in the well of Sahebrao Nagargoje. B

3. The Judicial Magistrate, First Class, Patoda committed the case to the Court of Sessions, Beed being exclusively triable by the Court of Sessions. ::: Downloaded on – 11/03/2014 22:53:32 ::: 11 525.11crapl

4. After appearance of the accused, the said case was rt

initially assigned to the Additional Sessions Judge-2 for ou

disposal according to law. Later on, the said case was C

transfered to Court of Additional Sessions Judge, Beed. h

5. Initially, charge was framed vide Exhibit-37 ig

against the accused. However, after completion of hearing, it was found that, the period covered regarding allegations of H

illtreatment starts after one month from 12/06/2009 till y

24/12/2009 and therefore, with necessary modification, ba

again charge was framed vide Exhibit-37/A. The accused pleaded not guilty and claimed to be tried. om

6. The prosecution led the evidence of the following B

witnesses.

. On the point of illtreatment and harassment ::: Downloaded on – 11/03/2014 22:53:32 ::: 12 525.11crapl material evidence is of PW-2 Dashrath Babasaheb Yede vide Exhibit-61, PW-4 Sitaram Mahadeo Yede vide Exhibit-72 and rt

PW-5 Chhagan Narayan Yede vide Exhibit-73. ou

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. PW-1 Bhausaheb Panditrao Yede (Exhibit-55) is the panch witness on the spot panchnama vide Exhibit-56 h

and inquest panchnama vide Exhibit-57. Seizure of clothes of ig

deceased under panchnama (Exhibit-58) is admitted by defence.

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. The evidence of PW-3 Dr. Kailas Hiraman Dudhal ba

vide Exhibit-63 regarding autopsy which was done by him and his fellow Medical Officer Dr. Sonwane. om

. PW-6 Rajabhau Mahadeo Landge vide Exhibnit-74 B

carried out initial investigation in A.D. No. 66/2009 and drew spot panchnama and inquest panchnama. PW-7 Suresh Savleram Budhwant was Police Inspector and Investigation ::: Downloaded on – 11/03/2014 22:53:32 ::: 13 525.11crapl Officer, whose evidence is at Exhibit-76. rt

7. The incriminating circumstances did arise from ou

the evidence on record, therefore, statement of the accused C

under Section 313 of the Code of Criminal Procedure was recorded. The defence of the accused was of total denial with h

contention that, false case was filed. The accused have also ig

submitted their written statement of defence separately vide Exhibit-84 to 87. The defence of the accused Nos. 1 and 3 H

was that, they only reside at Malewadi. Accused No. 2 y

Ramhari was serving in Gurukrupa Packaging Company, ba

Pune. Accused No. 4 was resident of Dashked and was residing with Dattatraya Wagh, which was in Patoda Taluka. om

Accused No. 5 Kalpana was residing with her husband at Padvi, Taluka Jamkhed.

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. According to them, deceased Sangita did not cohabit with even for three months. She used to sit idle in a ::: Downloaded on – 11/03/2014 22:53:32 ::: 14 525.11crapl corner of the house and used to go to river for bath. She used to go to her maternal home after 8-10 days. Similarly, she rt

went and was searched and later on found at Vaijala. Any ou

how, she was brought back by giving understanding but she C

did not improve her behaviour. On 21/12/2009 accused Nos. 1 and 3 went for providing milk to their customers and h

remained at Patoda upto 5-00 p.m., as motor of Nana Aware ig

was to be repaired. On returning home, they got knowledge that, deceased Sangita went in the morning and did not H

return, therefore, on 22/12/2009 information was given to y

Kailas Yede on phone and search was undertaken. Accused ba

went to give missing complaint to Patoda but police directed that, the complaint was to be filed in Jamkhed police station. om

Later, dead body of deceased Sangita was found in the area of Yawalwadi in the well of Sahebrao Nagargoje. According to the B

accused, they did not commit any crime and they are innocent.

::: Downloaded on – 11/03/2014 22:53:32 ::: 15 525.11crapl

8. The Sessions Court appreciated the entire evidence on record and after hearing learned Counsel for the rt

parties convicted the accused Nos. 1 and 3 i.e. appellants ou

herein, and sentenced them as stated in paragraph-1 C

hereinbefore and acquitted remaining accused Nos. 2,4 and 5. Hence this appeal by the appellants against the conviction. h

9.

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Learned Counsel appearing for the appellants submits that, PW-2 Dashrath Yede-father of the deceased, H

PW-4 Sitaram Yede-cousin of deceased, and PW-5 Chhagan y

Yede-maternal uncle of deceased were examined by the ba

prosecution for proving the charge for the offence punishable under Section 498-A and 304-B of the Indian Penal Code. om

They have stated in their examination in chief that, marriage of Sangita was settled with appellant No.1 Bappasaheb on B

giving an amount of Rs. 1,00,000/- towards dowry, one tola gold and other utensils. They have also deposed that, the marriage of Sangita with Bappasaheb took place on ::: Downloaded on – 11/03/2014 22:53:32 ::: 16 525.11crapl 12/06/2009. They further deposed that, all the accused were giving illtreatment to Sangita as they have not properly given rt

respect to them at the time of marriage and therefore, ou

demanded Rs. 1,00,000/-. Learned Counsel further C

submitted that, Section 304-B of the Indian Penal Code clearly states that, there should be harassment and cruelty h

for demand of dowry just before the death of married lady. ig

However, in the present case, there is no evidence adduced by the prosecution which would show that, there was demand of H

dowry which was settled at the time of marriage and y

therefore, in absence of such evidence, the conviction and the ba

sentence of the appellants for the offence punishable under Section 304-B of the Indian Penal Code has resulted into om

grave miscarriage of justice and hence, the appellants deserve to be acquitted. Learned Counsel further submitted that, B

PW-3 Dr. Kailas Dudhal, who conducted autopsy of Sangita, has deposed that, he found two ligature marks below hyoid bone and the said injury was antemortem. He further ::: Downloaded on – 11/03/2014 22:53:32 ::: 17 525.11crapl deposed that, the cause of death was cardio respiratory arrest due to asphyxia; he further deposed that, this was an rt

unnatural death. However, in his cross examination, he ou

admits that, he cannot tell by which instrument said ligature C

mark was made. He further admits that, no abrasion was found on neck. Dimension of ligature mark cannot be h

mentioned as it was faint. He further admits that, ligature ig

mark was partial. He further admits that, hyoid bone was not fractured, size of scarf and size of ligature mark are not co- H

related, therefore, it cannot be said that, the deceased was y

strangulated by scarf by the appellants and this fact is not ba

proved by the prosecution beyond reasonable doubt, and hence, benefit of doubt goes in favour of appellants. Learned om

Counsel further submits that, the prosecution case rest upon the circumstantial evidence. The prosecution has failed to B

prove the circumstances which would show that, proved circumstances unerringly point out the guilt of the accused. The only circumstance against the accused is that, he has not ::: Downloaded on – 11/03/2014 22:53:32 ::: 18 525.11crapl

explained the cause of the death of Sangita and that itself would not sufficient to prove the offence punishable under rt

Section 302 of the Indian Penal Code. Therefore, learned ou

Counsel appearing for the appellants submits that, the C

conviction and sentence of the appellants deserve to be quashed and set aside in the interest of justice. Learned h

Counsel appearing for the appellants submits that, the appeal may be allowed.

ig

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10. Learned Counsel appearing for the appellants y

relying upon the exposition of the Supreme Court in the case ba

of Subramaniam vs. State of Tamil Nadu and another 1 submits that, if the medical opinion as to the cause of death om

is expressed by the Medical Officer and if symptoms are absent, in such a situation the Supreme Court held that, B

opinion cannot be relied upon. Learned Counsel further invited our attention to the reported judgment of the Supreme 1 2009 ALL MR (Cri) 2118 (S.C.) ::: Downloaded on – 11/03/2014 22:53:32 ::: 19 525.11crapl Court in the case of Dasari Siva Prasad Reddy vs. Public Prosecutor, High Court of Andhra Pradesh 2 and in rt

particular paragraph-22 and 23 thereof, and submits that, ou

the facts and circumstances unerringly should point the C

presence of the accused at the crucial time in the house, however, in the facts of the present case, the prosecution has h

not placed any evidence on record which would suggest that, ig

the appellants were last seen in the company of the deceased H

soon before the occurrence. He further invited our attention to the reported judgment of Bombay High Court in the case of y

Ramesh s/o Shankar Dhotre vs. State of Maharashtra 3 ba

and submitted that, if the accused were not last seen together with the deceased, either soon before or soon after the om

incident, the prosecution case based upon circumstantial evidence deserves to be disbelieved. Learned Counsel further B

invited our attention to the reported judgment of the Supreme Court in the case of Sawal Das vs. State of Bihar 4 and in 2 AIR 2004 SC 4383

3 2010(10) LJSOFT 1

4 AIR 1974 SC 778

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particular paragraphs-9 and 10 thereof. It is submitted that, burden of proving a plea specifically set up by an accused rt

certainly lies upon him. But neither Section 103 nor Section ou

106 can absolve prosecution from discharging its general or C

primary burden of proving its case beyond reasonable doubt. For the said proposition, he further invited our attention to h

the reported judgment of Bombay High Court in the case of ig

Abdul Karim s/o Jabbar Sheikh @ Indumiya Sheikh vs. H

State of Maharashtra 5 and also judgment of the Supreme Court in the case of Sohel Mehaboob Shaikh vs. State of y

Maharashtra 6. Therefore, he submits that, the appeal ba

deserves to be allowed.

om

11. Learned A.P.P. relying upon the reasons recorded by the Sessions Court, Beed in the impugned judgment and B

order submits that, all the circumstances have been firmly established by the prosecution. It is submitted that, deceased 5 2013 (8) LFSOFT 43

6 2009(10) LJSOFT (S.C.) 138

::: Downloaded on – 11/03/2014 22:53:32 ::: 21 525.11crapl Sangita was in the company of the accused persons soon before occurrence and therefore, they are bound to state rt

under which circumstances the incident occurred. It is ou

submitted that, since the entire case rest upon the C

circumstantial evidence and each circumstance has been firmly established by the prosecution, the trial Court has h

rightly convicted the appellants. There was demand of dowry ig

and and on account of non-fulfillment of dowry amount, there was illtreatment at the hands of the accused to the deceased H

Sangita and therefore, in view of the provisions of Section y

304-B of the Indian Penal Code read with Section 114-B of ba

the Indian Evidence Act, the accused are rightly convicted by the Sessions Court. Therefore, learned A.P.P. submits that, om

appeal sans merits, hence same may be dismissed. B

12. Learned A.P.P. invited our attention to the judgment of Bombay High Court in the case of State of ::: Downloaded on – 11/03/2014 22:53:32 ::: 22 525.11crapl Maharashtra vs. Laxman Narsinhrao Ganti and others 7 and in particular paragraphs-13 to 16 thereof. He further rt

invited our attention to the reported judgment of Bombay ou

High Court in the case of Eknath s/o Ramu More (Bhil) vs. C

State of Maharashtra 8 and submits that, before the incident it is admitted position that, deceased Sangita was in h

matrimonial house. Therefore, the accused persons are ig

bound to disclose the facts which are in their special H

knowledge that, how Sangita died. However, even probable defence taken by the accused could not meet the test of y

approving same by a prudent man. Therefore, learned A.P.P. ba

submits that, the appeal may be dismissed. om

13. We have heard the learned Counsel appearing for the appellants and learned A.P.P. for the State at length and B

also perused the entire documents placed on record and also original record and proceedings. We would like to 7 2013 ALL MR (Cri) 456

8 2010 ALL MR (Cri) 2871

::: Downloaded on – 11/03/2014 22:53:32 ::: 23 525.11crapl reappreciate the entire evidence on record. There is no eye witness to the incident and therefore, the entire case rest rt

upon the circumstantial evidence. PW-2 Dashrath Yede, ou

PW-4 Sitaram Yede and PW-5 Chhagan Yede have deposed C

before the Court that, the accused persons were demanding Rs. 1,00,000/- and on non-fulfillment of the said demand by h

the father of the deceased Sangita, they were illtreating her. ig

As it appears from the perusal of record that, the marriage of Sangita with Bappasaheb Bhaskar Aware was solemnized on H

12-06-2009, and dead body of Sangita was found in the well y

on 24/12/2009. The dead body of deceased Sangita was ba

recovered from the well situated in the field of one Mr. Sahebrao Nagargoje on 24-12-2009. It has come on record om

that, soon before occurrence, deceased Sangita was in her matrimonial house. It is the contention of the accused B

persons that, Sangita left her matrimonial home on 22/12/2009 at about 11-00 a.m. to collect the grass and she did not return. However, upon perusal of the entire evidence ::: Downloaded on – 11/03/2014 22:53:32 ::: 24 525.11crapl placed on record, the accused persons have not placed on record any material to probalise their defence which would be rt

accepted by prudent man. It appears that, they told the ou

father of deceased Sangita that, she left at 11-00 a.m. from C

their house to collect the grass. Therefore, admittedly Sangita was lastly in the company of the accused before occurrence, h

since according to them, she left matrimonial home on ig

22-12-2009. It appears that, the case of the accused is that, deceased Sangita died by accidental fall in the well of Mr. H

Sahebrao Nagargoje since she had habit of leaving house after y

15-20 days without telling family members. Therefore, it is ba

necessary to find out whether death of Sangita was accidental, suicidal or homicidal. om

14. It has come in the evidence of PW-2 Dashrath B

that, Sangita knew swimming. It has also come on record that, diameter of well was 15 feet, depth was 12 feet and water level was 7 feet. The said well is in dilapidated ::: Downloaded on – 11/03/2014 22:53:32 ::: 25 525.11crapl condition and unconstructed. It has also come in the spot panchnama that, foot wears of Sangita were lying nearby well. rt

Even in the complaint PW-2 has specifically mentioned that, ou

deceased Sangita knew swimming. The contents of the C

complaint have been proved by PW-2 by his version before the Court. The Medical Officer has not given opinion that, it was a h

drowning death though dead body was found in the well. It ig

appears from the spot panchnama that, there is arrangement of steps to enter the well. Therefore, in view of the fact that, H

Sangita knew swimming and steps were available to enter the y

well and also the fact that, depth of the well is only 15 feet, ba

the possibility of accidental slip is completely ruled out. om

15. The contention of the accused appears to be that, there was possibility that, the deceased might have gone for B

fetching water and might have slipped her leg and scarf might have tightened around her neck as it is reflected in the judgment of the Sessions Court. However, as already ::: Downloaded on – 11/03/2014 22:53:32 ::: 26 525.11crapl observed, the distance from the house of accused and said well is around 1 to 1.5 kms. Therefore, by any stretch of rt

imagination, there was no question of going Sangita to fetch ou

water from the said well.

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16. The memorandum of post mortem examination of h

the deceased Sangita was held at Rural Hospital, Patoda ig

District Beed on 24/12/2009. It appears that, post mortem was began at 5-00 p.m. and was completed at 6-00 p.m. In H

the post mortem in Column No.9, it is mentioned thus ; “2 y

faint ligature mark below hyoid bone.” In Column No.10 ba

while mentioning the condition of body, it is written “well nourished.” In Column No. 12 i.e. extent and signs of om

decomposition etc., it is written that ” P.M. lividity present over buttocks, loins, back and thigh”. In Column No.13 i.e. B

features, it is mentioned that, “eyes are closed, tongue inside the mouth”. In Column No.16 it is mentioned that, “both upper and lower limbs are in Relaxed position”. In Column ::: Downloaded on – 11/03/2014 22:53:32 ::: 27 525.11crapl Nos.17 and 18 as many as 8 injuries have been mentioned which are as under :

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“(1) Post mortem Artifact upper & lower right eye lid. (2) Post mortem Artifact upper & lower left eye lid. C

(3) Post mortem Artifact over right half ear. (4) Post mortem Artifact over left half ear. h

(5) Post mortem Artifact over upper & lower lip. ig

(6) Post mortem Artifact superficially at right illiac region. (7) Post mortem Artifact 2-3 cm. superficial horizontal to H

left side of neck.

Margins are non bleeding. In all above no cellular reaction present. These all are due to squalic Animal. y

(8) Two faint ligature mark below hyoid bone.” ba

It is further mentioned that, injuries (1) to (7) are postmortem om

injuries. Injury No. 8 is antemortem in nature. The cause of death is stated as “Cardio Respiratory Arrest due to Asphyxia B

due to strangulation.”

. PW-3 Dr. Mr. Kailas Hiraman Dudhal was ::: Downloaded on – 11/03/2014 22:53:32 ::: 28 525.11crapl examined at Exhibit-63 and in his deposition he stated that, he is qualified MS. Gen. Surgeon. From 1987 he was working rt

as Medical Officer. He carried out near about 2000 post ou

mortem. On 24/12/2009 dead body of Sangita Bappasaeb C

Aware was brought in his hospital for autopsy. He received copy of inquest panchnama alongwith dead body. h

Approximately age of deceased was 20-23 years. Deceased ig

was having pink Saree on her person and orange colour blouse and black scarf around neck. He deposed that, he H

found the injuries as mentioned in column No.17 in the post y

mortem report which are given above in paragraph-14 of this ba

judgment. He further deposed that, injury No. 8 was antemortem. He further deposed that, he carried out internal om

injury examination of dead body. Her heart at left side was empty and right was full of blood. Large vessel contains dark B

blood. Stomach was empty. Small intestine distended. Large intestine distended. Greenish discoloration of caccum. Viscera was preserved. He further deposed that, provisional ::: Downloaded on – 11/03/2014 22:53:32 ::: 29 525.11crapl certificate was issued by him. He further deposed that, certificate was issued by two doctors as post mortem was rt

conducted by two doctors. He further deposed that, he ou

certified that, Smt. Sangita Bappasaheb Aware R/o. Malewadi C

died due to cardio respiratory arrest due to asphyxia and this is unnatural death, however viscera was preserved for h

chemical analysis. Certificate bears his signature at Serial ig

No. 2 and it bears signature of Dr. Sonwane at Serial No. 1. Provisional certificate was at Exhibit-64. Second doctor H

issued another certificate that, they have done post mortem y

examination of dead body of Sangita. Time since dead body ba

was more than 36 hours and less than 72 hours. Said certificate (Exhibit-65) bears signature of Dr. Sonwane and he om

identified his signature and he stated that, contents are correct. C.A. report is at Exhibit-66. Result of analysis is to B

the effect that, general and specific chemical testing does not reveal any poison in Exhibit No. 1 and 2. He further deposed that, as per P.M. Notes cause of death was cardio respiratory ::: Downloaded on – 11/03/2014 22:53:32 ::: 30 525.11crapl arrest due to asphyxia due to strangulation. P.M. notes (Exhibit-67) bears his signature and signature of Dr. Sonwane rt

and contents of P.M. notes are true and correct. He further ou

deposed that, such death can be caused if person’s neck was C

pressed by hands or by scarf. (Underlines added). h

17. In the cross examination of PW-3 Dr. Mr. Kailas ig

Hiraman Dudhal, he has firmly stated that, he saw ligature mark around neck of dead body. He further stated that, H

viscera was preserved to see whether it was a case of y

poisoning. It is further stated that, he did not find any other ba

injury mark on the rest of the body. It appears that, suggestion was given to him by the defence that, he cannot om

tell whether ligature mark was accidental or suicidal. The said suggestion has been firmly denied by him. He stated B

that, it is not true to say that, he cannot tell whether it was accidental or suicidal ligature mark. He further stated that, hyoid bone was not fractured. He specifically stated that, size ::: Downloaded on – 11/03/2014 22:53:32 ::: 31 525.11crapl of scarf and size of ligature mark are not co-related. He specifically denied that, whatever he deposed reference to rt

accidental strangulation on neck. He further denied the ou

suggestion that, C.A. report has nothing to do with the final C

cause of death.

h

. It is the contention of learned Counsel appearing ig

for the appellants that, the Medical Officer admitted in his cross examination that, he cannot tell by which instrument H

said ligature mark was made, no abrasion was found on neck, y

dimension of ligature mark cannot be mentioned as it was ba

faint, ligature mark was partial and hyoid bone was not fractured. Therefore, it is the contention of learned Counsel om

appearing for the appellant that, prosecution has not proved beyond reasonable doubt that, death of deceased Sangita was B

homicidal. In this respect, it is required to be mentioned that, he has carried out near about 2000 post mortem as stated by him. He has firmly stated in his evidence that, size of scarf ::: Downloaded on – 11/03/2014 22:53:32 ::: 32 525.11crapl and size of ligature mark are not co-related and in his cross examination he voluntarily stated that, it was homicidal rt

ligature mark. The contention of learned Counsel appearing ou

for the appellants is that, no any injury or abrasion was C

found on neck or on any other part of the body and therefore, case in hand is not homicidal. In every case of strangulation h

and homicidal death, it is not necessary that, there should be ig

abrasion or injuries on the person of the deceased. H

. Learned Counsel appearing for the appellants y

relying upon the post mortem report would contend that, it is ba

observed in post mortem report that, no abnormality is detected. However, upon perusal of the post mortem report om

and in particular paragraph Nos. 19 and 20, the word ‘congested’ appears on many places. Therefore, opinion B

expressed by the Medical Officer that, cause of death is Cardio Respiratory Arrest due to Asphyxia due to strangulation. In this respect, it is also necessary to mention ::: Downloaded on – 11/03/2014 22:53:32 ::: 33 525.11crapl that, Medical Officer was not specifically confronted with the aforesaid contention of the appellants and therefore, he had rt

no opportunity to explain. There may be possibility of ou

injuries or violence in case of throttling by unknown person. C

18. In the light of evidence discussed herein above it is h

firmly established by the prosecution that, death was ig

homicidal. However, question is who is responsible for Sangita’s death. Therefore, it is necessary to discuss the H

evidence of other witnesses.

y

ba

19. PW-2 Dashrath Babasaheb Yede deposed before the Court that, he is having two daughters namely Savita and om

Sangita and son Maruti. His daughter Sangita was given in marriage to accused No.1 Bappasaheb Bhaskar Aware. B

Chhagan Yede, Sitaram Yede, Pandit Yede, Sadashiv Yede, he himself and Dnyanoba Tukaram Aware were mediators of marriage. Marriage of Sangita with accused Bappasaheb took ::: Downloaded on – 11/03/2014 22:53:32 ::: 34 525.11crapl place on 12/06/2009. Rs. 1,00,000/- dowry, one tola gold, daily utensils with all respects were given to the accused in rt

marriage. He made expenditure of Rs. 3,00,000/- due to ou

pressure and demand of the accused. Customary visits of C

Sangita were done. Sangita started cohabiting with accused at Malwadi, Taluka Jamkhed. Accused Bappasaheb, father in h

law Bhaskar, Ramhari-brother in law, two sister in laws ig

Suvarna and Kalpana were residing in the same village. Suvarna was residing towards western side of the house of H

rest of the accused. Kalpana was given in marriage at Jikari y

Padali, Taluka Jamkhed. She came for termination of ba

delivery at the time of said marriage between Sangita and accused Bappasaheb. Kalpana was residing with accused till om

death of his daughter Sangita with accused. B

. PW-2 Dashrath Yede also deposed before the Court that, after one month he went to Malwadi. Accused No. 1 Bappasaheb asked him that, proper respects locally called ::: Downloaded on – 11/03/2014 22:53:32 ::: 35 525.11crapl as “Manpan” not done to him and demanded Rs.1,00,000/-. He told him that, heavy expenditure was made in the rt

marriage and he could not pay any amount. He further ou

deposed that, in his presence accused Bappasaheb, Bhaskar, C

Ramhari and Suvarna and Kalpana assaulted Sangita by fist and kick blows. He further deposed that, accused h

Bappasaheb caught hold his collar locally called as ” Gachure ig

Dharle”. The accused gave threat that, he should pay Rs. 1,00,000/-. Accused Bappasaheb told him that, he did not H

like his daughter. She was not looking fair. Accused gave y

threat that, he would say what would be done in future. ba

Thereafter, PW-2 came back alone to his house and told the said incident to all mediators. (Underlines added). om

. PW-2 further deposed that, he and Chhagan Yede B

went to Malwadi and he requested all accused not to beat his daughter, give her good treatment. Sangita told him that, accused used to beat her repeatedly and making repeated ::: Downloaded on – 11/03/2014 22:53:32 ::: 36 525.11crapl demands of Rs.1,00,000/-. Accused used to assault her. They keep her starve. PW-2 further stated in his deposition rt

that, he asked accused and Sangita to behave properly and ou

came back to his village. ( Underlines added). C

. PW-2 further deposed before the Court that, one h

month prior to her death, Sangita was brought to his village ig

by Dnyanoba Aware. He asked Sangita how she came. She told that, accused beat her and asked her to bring Rs. H

1,00,000/- from him and only thereafter accused would allow y

her to reside with them. She further told that, accused gave ba

threat that, if she won’t bring money, they would commit her murder and drove her out of the house. For 10 to 12 days om

Sangita was with them. PW-2 further stated in his deposition that, he himself, Chhagan Yede, Sitaram Yede took Sangita to B

Malewadi to the house of accused. He made sincere request to accused that, they should properly behave with his daughter and left her in the custody of accused and then ::: Downloaded on – 11/03/2014 22:53:32 ::: 37 525.11crapl they came back to their village. (Underlines added). rt

. PW-2 further deposed before the Court that, on ou

22/12/2009 Kailas, a grocery shopper told him that, he C

received phone from Malewadi that, Sangita is missing. Therefore, he, Kailas Yede, Chhagan Yede, Sitaram Yede went h

to Malewadi and reached there at 11-30 p.m. He asked the ig

accused Bappasaheb where Sangita went. Accused Bappasaheb told him that, Sangita went to the field at 11-00 H

a.m. for collecting grass. Thereafter, they made halt at y

Belakwadi. Extensive search was made on following day but ba

Sangita was not found. Accused did not make any complaint to police station about missing. On third day of missing of om

Sangita, accused Bappasaheb went to police station and gave missing report. They received information from police that, in B

Yeolwadi area in one well dead body of one female was floating in the well water. Thereafter, they went to that spot. That was the dead body of his daughter Sangita. Police were ::: Downloaded on – 11/03/2014 22:53:32 ::: 38 525.11crapl present there. He told the police that, Sangita knew swimming. He asked the police to take his complaint. He saw rt

strangulation mark around neck of Sangita. Police told him ou

until post mortem was done, they cannot take his complaint. C

Panchnama was done on the spot. Dead body was taken to hospital. Post mortem was done there. Funeral was done at h

Malewadi at about 12-30 midnight. (Underlines added). ig

. PW-2 further deposed that, in the morning he H

approached Patoda police station and lodged complaint. He y

put his thumb impression on the complaint. Said complaint ba

was read over to him. He identified his thumb impression on the complaint (Exhibit-62) before the Court. He further om

stated that, accused subjected to his daughter to cruelty and committed her murder as he could not pay Rs.1,00,000/-. He B

identified the accused persons before the Court. . He stated in his cross examination that, he visited ::: Downloaded on – 11/03/2014 22:53:32 ::: 39 525.11crapl the house of accused on four occasions after marriage of Sangita. The defence counsel in order to show that, financial rt

condition of the complainant, did ask him certain questions. ou

He stated that, he is having three acres irrigated land and two C

buffaloes and two cows and accused are having 7 to 8 acres land. They are also having 3 acres irrigated land and one h

buffalo.

ig

20. However, this Court is of the opinion that, such H

admission of this witness would not necessarily lead to the y

conclusion that, financial position of accused is good and ba

therefore, there could not have been demand of dowry from the complainant. After all, it depends upon conduct, om

tendency and grid of money.

B

. PW-2 Dashrath refused the suggestion that, Sangita had been to his house at the time of festival of Mahalaxmi. He has further denied that, Sangita was visiting ::: Downloaded on – 11/03/2014 22:53:32 ::: 40 525.11crapl on interval of 15 days to his house without intimation to the accused. He has specifically denied that, Sangita was rt

suffering from mental disease. He has specifically denied ou

other suggestions also. He stated that, he did not lodge C

complaint that, his daughter was beaten by the accused since daughter was required to be cohabited in the matrimonial h

house. He further specifically stated that, on 22-12-2009 ig

when he was in the house he received information of missing of his daughter. He alongwith Chhagan Yede and others went H

to Malewadi. He himself and other three persons went to y

Malewadi. The accused Bappasajheb and his father were in ba

the house. This witness specifically stated that, it is not true to say that, accused Bappasaheb and Bhaskar were searching om

Sangita alongwith them. He has denied the suggestion that, the accused persons and complainant alongwith other three B

persons made search of Sangita in Bedukwadi, Vaijala, Daskhed and Malewadi. He stated that, he did not go with the accused to the police station, Patoda for giving missing report. ::: Downloaded on – 11/03/2014 22:53:32 ::: 41 525.11crapl He stated that, on receiving information on 24-12-2009 that, dead body of Sangita is in the water of the well of Sahebrao rt

Nagargoje, they reached to the spot. He further stated that, ou

he did not see scarf on the person of dead body. He further C

stated that, he has seen strangulation mark around the neck and some injuries on mouth. He got suspicion that, murder of h

his daughter was committed as he saw strangulation mark ig

around the neck. He attended funeral process. Accused No.1 was present but accused Bhaskar was not present in the H

funeral. He went alongwith his brother and wife to Patoda y

police station and lodged complaint. This witness has ba

specifically denied the suggestion that, his daughter Sangita was mentally ill and still the accused were maintaining her. om

He has specifically denied that, the accused having no any concern with the death of his daughter. He firmly deposed B

before the Court that, accused are responsible for death of Sangita. PW-2 Dashrath’s cross examination has not yielded any material which could be said to be favourable to the ::: Downloaded on – 11/03/2014 22:53:32 ::: 42 525.11crapl defence. (Underlines added).

rt

21. PW-4 Sitaram Mahadeo Yede (Exhibit-72) has ou

deposed that, deceased Sangita was his cousin sister. Her C

husband is accused No.1 Bappasaheb who was before the Court. He know all the accused who were present in the h

Court. He further deposed that, Pandit Yede, Chhagan Yede, ig

Kailas Yede, Dnyanoba Tukaram Aware were the mediators of the marriage between Sangita and Bappasaheb. The H

marriage was settled by giving Rs.1,00,000/- towards dowry y

plus one tola gold. Marriage of Sangita and Bappasaheb took ba

place on12/06/2009. Rs. 2,00,000/- to Rs. 3,00,000/- were arranged for the marriage due to demand of accused. After om

marriage traditional visits were given by Sangita to maternal home. He further deposed that, before one month of the B

incident, Dnyanoba Aware brought Sangita to their village. He asked Sangita how she came back. Sangita told him that, her in laws and husband were giving her illtreatment as proper ::: Downloaded on – 11/03/2014 22:53:33 ::: 43 525.11crapl respect was not extended to them in the marriage. They were demanding Rs.1,00,000/- and she was driven out of the rt

house. He further deposed that, after 10-12 days Sangita was ou

sent back by giving some understanding. Before 15 days of C

the incident, he himself, Chhagan Yede, Kailas Yede and Dashrath Yede took Sangita to the house of accused. He h

requested accused that, recently Rs. 2 to 3 lakhs were spent ig

in the marriage, they should not give illtreatment to Sangita, they should not keep her starve. He further deposed that, H

they requested to give proper treatment to Sangita and came y

back to their village and Sangita was left in the company of ba

the accused.

om

. PW-4 Sitaram further deposed that, shopkeeper Kailas Yede received phone on 22/12/2009 that, Sangita was B

missing and he gave said message to him. Said message was to him by his uncle. Therefore, he himself, Kailas Yede, Pandit Yede, Chhagan Yede and Dashrath Yede went to ::: Downloaded on – 11/03/2014 22:53:33 ::: 44 525.11crapl Malewadi. They reached there at 11-00 p.m. in the night. He asked accused Bappasaheb where Sangita was. He further rt

deposed that, Bappasaheb told that, Sangita went at 11-00 ou

a.m. for collecting grass but thereafter he did not know her C

whereabouts. They searched Sangita in the area of Malewadi. He further deposed that, on 23/12/2009 they searched h

Sangita in and around Malewadi. He asked accused ig

Bappasaheb on 24/12/2009 at least to go to police and give report that, Sangita was missing. At about 1-00 p.m. they H

received message from Patoda police that, in Yeolwadi area in y

the field of Saheba Vithal Nagargoje one dead body of lady ba

was floating on the water of well. Therefore, they went to Yeolwadi. Police were present there. Many people gathered om

around the well. Said dead body was of Sangita. He further deposed that, he found ligature mark around the neck of B

Sangita. Police recorded his statement on 25/12/2009. Accused subjected deceased Sangita to cruelty and illtreatment as they could not pay Rs.1,00,000/- to them and ::: Downloaded on – 11/03/2014 22:53:33 ::: 45 525.11crapl they have committed murder of Sangita and threw dead body in the well. The clothes of deceased were seized under rt

panchnama (Exhibit-58). (Underlines added). ou

C

22. In his cross examination before the Court, he deposed that, he is agriculturist and personally cultivates his h

land. The house of Dashrath is adjacent to his house. When ig

phone was received, he was in the village. Said message was received at 7-00 p.m. Five to seven persons went to Malewadi H

in jeep. This witness has denied the suggestion that, accused y

Bappasaheb told him that, he searched Sangita in the fields ba

and during that search, he met Sunanda Shahaji Aware and Keshav Wagh. He further denied the suggestion that, om

Sunanda Shahaji Aware and Keshav Wagh told accused Bappasaheb that, Sangita went to the house of Suvarna and B

therefore, he made phone call to this witness and others. He specifically deposed that, he became suspicion as he saw ligature mark around the neck of Sangita. He specifically ::: Downloaded on – 11/03/2014 22:53:33 ::: 46 525.11crapl stated that, ‘it is not true to say that Sangita did not tell me about illtreatment and demand of Rs. One lakh. It is false rt

that Sangita was not having any trouble at the hands of ou

accused. It is false that Sangita was mentally ill lady.’ He C

denied the suggestion that, he is deposing false on the say of the complainant. As it is apparent that, PW-4 Sitaram’s cross h

examination has not yielded any material which could be said ig

to be favourable to the defence. H

23. PW-5 Chhagan Narayan Yede deposed at y

Exhibit-73 that, he know deceased Sangita and Dashrath of ba

his village. Bappasaheb Aware is husband of deceased Sangita. He know him and rest of the accused, who were om

present in the Court. Pandit Yede, Sitaram Yede, Dnyanoba Aware and he himself were the mediators for the said B

marriage between Sangita and Bappasaheb. Marriage of Sangita and Bappasaheb took place on 12/06/2009. Rs. One lakh dowry, one tola gold was given to accused. Utensils in ::: Downloaded on – 11/03/2014 22:53:33 ::: 47 525.11crapl all respect as demanded were given to the accused. He further deposed that, in Deepawali he went to Malewadi with rt

Dashrath Yede. He asked the accused to give proper ou

treatment to Sangita and not to give her trouble. Accused C

were demanding Rs. One lakh therefore, he went to give understanding to them. He met Sangita. Sangita told him h

that, she was having trouble at the hands of accused. ig

Accused asked her to bring Rs. One lakh from the complainant. Accused keep her starve. Therefore, they came H

back to their village.

y

ba

. PW-5 Chhagan Yede further deposed that, Dnyanoba Aware brought Sangita to Vaijala and left her with om

her parents. Sangita told him that, accused gave her illtreatment, they beat her. Accused demanded Rs. One lakh B

and drove her out of the house. For 10 to 12 days Sangita was at Vaijala. After 10 to 12 days he himself, Dashrath Yede, Sitaram Yede took Sangita to the house of accused. ::: Downloaded on – 11/03/2014 22:53:33 ::: 48 525.11crapl They requested accused to give proper treatment to Sangita. Thus, they left Sangita to Malewadi and came back to Vaijala. rt

ou

. He further deposed that, on 22/12/2009 Kailas C

Yede received phone from Malewadi that, Sangita was missing. Therefore, he himself, Sitaram, Pandit and Dashrath h

went to Malewadi. He asked Bappasaheb where Sangita was. ig

Bappasaheb told that, Sangita went in the field to collect grass but did not return. They searched Sangita in the fields H

at Malewadi but in vain. He further deposed that, on y

following day also they searched Sangita in and around the ba

village. On 24/12/2009 police informed that, in Yeolwadi area in the field of Sahebrao Nagargoje, in well, one dead body om

of a lady was floating on the well. It was dead body of Sangita. He further deposed that, he saw ligature mark B

around the neck of Sangita. Police drew panchnama and sent dead body for autopsy to the hospital. Police recorded his statement on 25/12/2009. He further deposed that, ::: Downloaded on – 11/03/2014 22:53:33 ::: 49 525.11crapl according to him, accused committed murder of Sangita and threw her dead body in the well as they could not pay Rs. One rt

lakh.

ou

C

24. PW-5 Chagan Yede in his cross examination stated that, Dashrath i.e. complainant is his brother. He went to h

Malewadi to bring Sangita after marriage. At that time, he ig

was in the house of the accused for one hour. He did not take tea. In his cross examination he stated that, he must inform H

Dnyanoba Aware about illtreatment and harassment given by y

the accused to Sangita as he was mediator in the marriage, ba

but he could not meet Dnyanoba Aware. He has specifically denied that, Sangita was mentally ill lady. He further stated om

that, the accused did give illtreatment to Sangita and make demand of dowry. The cross examination of PW-5 Chhagan B

Yede has not yielded any material which could be said to be favourable to the defence.

::: Downloaded on – 11/03/2014 22:53:33 ::: 50 525.11crapl . At this juncture it is relevant to mention that, accused Bappasaheb in his statement recorded under Section rt

313 of Code of Criminal Procedure admitted that, Chagan ou

Yede, Sitaram Yede, Pandit Yede, Sadashiv Yede and C

Dnyanoba Tukaram Aware were mediators of his marriage with deceased Sangita.

h

25.

ig

PW-6 Rajabhau Mahadeo Landge, Police Head Constable deposed at Exhibit-74 that, on 24/12/2009 an H

information was received that, one dead body of lady was y

found in Yewalwadi area in well. Land owner gave that ba

Khabar. Head Constable Mr. Manjare registered A.D. The investigation of A.D. No. 66/2009 was given to him. He om

further deposed that, he himself and Police Inspector Mr. Budhwant went to the spot. Dead body was taken out of the B

well. It was the dead body of Sangita Bappasaheb Aware. He drew spot panchnama in presence of panchas. He identified his signature and signature of panchas on the panchnama ::: Downloaded on – 11/03/2014 22:53:33 ::: 51 525.11crapl (Exhibit-56). He further deposed that, the contents of the panchnama are true and correct. He drew inquest rt

panchnama in presence of panchas. He identified his ou

signature and signature of panchas and thumb impression of C

lady panch on the inquest panchnama. (Exhibit-57). He further deposed that, contents of the inquest panchnama are h

true and correct. He further deposed that, said dead body was ig

sent for autopsy to Rural Hospital, Patoda. As crime was registered, he handed over A.D. enquiry papers to Police H

Inspector Mr. Budhwant.

y

ba

. He further deposed that, Police Inspector Mr. Budhwant issued one letter to Chemical Analyser at om

Aurangabad. Doctor has given viscera which was to be sent to Chemical Analyser. He handed over said viscera and sent B

letter to Aurangabad and obtained signature on office copy and stamp of the said office, office copy of the said letter (Exhibit-75) was handed over to P.I. Mr. Budhwant and he ::: Downloaded on – 11/03/2014 22:53:33 ::: 52 525.11crapl recorded his statement.

rt

. This witness was not cross examined by the ou

defence.

C

26. The evidence of PW-7 Mr. Suresh Savleram h

Budhwant is important. At the relevant time, from November ig

2009 he was attached to Patoda Police Station as Police Inspector. He deposed before the Court that, on 24/12/2009 H

they received information of a dead body floating on the water y

in the well belonged to Sahebrao Nagargoje. He and Landge ba

went to the said spot. Thereafter, they went to Yawalwadi where the spot of well. It was survey No. 406. He further om

deposed that, dead body was taken out of the well. On enquiry it was revealed that, said dead body was of Sangita B

Bappasaheb. Landge drew inquest panchnama and spot panchnama. Dead body was taken to Rural Hospital, Patoda for autopsy. He further deposed that, maternal relatives of ::: Downloaded on – 11/03/2014 22:53:33 ::: 53 525.11crapl deceased were insisting him to take complaint on the spot but he requested them that, first post mortem was to be done and rt

thereafter he would take their complaint. It is further stated ou

that, P.M. was concluded in the evening time. Funeral took C

place at Malewadi in the night at about 1-00 a.m. Doctor endorsed that, death occurred due to strangulation. On h

25/12/2009 Dashrath Yede came to police station at about ig

7-00 a.m. and his writer wrote the complaint as per his say. Dashrath Yede put his thumb impression on complaint and H

he signed complaint as ‘before me’. He further deposed that, y

complaint (Exhibit-62) bears his signature and thumb ba

impression of complainant Dashrath. He stated that, the contents of the complaint are true and correct. om

. PW-7 Mr. Suresh Budhwant further deposed that, B

he registered Crime NO. 117/2009 under Section 302, 498-A, 304-B read with Section 34 of Indian Penal Code. He took up investigation in the matter and he recorded statements of ::: Downloaded on – 11/03/2014 22:53:33 ::: 54 525.11crapl witnesses as per their say. He arrested the accused on 25/12/2009. He drew arrest panchnama. He issued one rt

letter to Doctor asking when death occurred. Office copy of ou

the said letter is at Exhibit-77. He further deposed that, C

Doctor gave opinion that, death might have occurred before 36 to 72 hours. Said reply is at Exhibit-78. He further h

deposed that, he again recorded statements of some ig

witnesses. Photographs of dead body were taken. He further deposed that, he sent viscera to the office of Chemical H

Analyser, Aurangabad with carrier Constable Landge y

alongwith letter (Exhibit-75). Landge deposited viscera in that ba

office and obtained endorsement on office copy of Exhibit-75 and Landge submitted the said office copy to him and he om

recorded the statement of Landge as per his say. B

. This witness further deposed before the Court that, he requested Revenue Circle Inspector to draw map of the spot by issuing letter (Exhibit-78). Map was accordingly ::: Downloaded on – 11/03/2014 22:53:33 ::: 55 525.11crapl prepared (Exhibit-69). He obtained 7/12 extract of the land in which well dead body was found (Exhibit-70). He also rt

collected 7/12 extract of the accused (Exhibit-71). He further ou

deposed that, complainant produced marriage invitation card C

and marriage photographs. He received P.M. Notes. Papers were sent for verification to superior officer. After verification h

of investigation papers by superior, he lodged charge sheet ig

against the accused. He deposed that, accused before the Court are same. He stated that, his investigation transpired H

that, for demand of money the accused subjected deceased to y

cruelty and committed her murder. ba

27. He was cross examined at length by the defence. om

He deposed that, he received missing report submitted by the accused. It is made part of investigation. Said missing report B

is at Exhibit-80. He stated that, it is not true to say that, accused Bappasaheb and complainant Dashrath came in the police station on 23/12/2009 for filing missing report. He ::: Downloaded on – 11/03/2014 22:53:33 ::: 56 525.11crapl further stated that, it is not true to say that, the accused did not give illtreatment to the deceased. He further stated in his rt

cross examination that, it is not true to say that, the accused ou

have no concern with death of deceased. He denied the C

suggestion of the defence that, there was no illtreatment to Sangita at their hands and that they have no concern with h

the death of deceased Sangita.

ig

28. Originally five accused persons were tried and the H

Sessions Court, Beed acquitted three accused persons and y

convicted the present appellant No. 1 Bappasaheb and his ba

father appellant No. 2 Bhaskar. Upon scrutiny of evidence of PW-2 Dashrath, there are specific allegations against om

appellant No.1 Bappasaheb. PW-2 Dashrath in his examination in chief deposed that, after one month of B

marriage, he went to Malewadi, accused No.1 Bappasaheb asked him that, proper respects locally called as “Manpan” was not done to him and demanded Rs. One lakh. So far ::: Downloaded on – 11/03/2014 22:53:33 ::: 57 525.11crapl allegations that, fist and kick blows were given are attributed to all five accused. However, there are specific allegations rt

against appellant No.1 Bappasaheb that, he caught hold ou

collar of PW-2 Dashrath. He demanded Rs. One lakh thereby C

extending threat that, in case said amount is not paid, he would see what would be done in future. There are also h

specific allegations against appellant No.1 Bappasaheb that, ig

he told the complainant Dashrath that, he did not like his daughter i.e., Sangita. She was not looking fair. Even in H

further visits of complainant alongwith PW-4 Sitaram and y

PW-5 Chhagan, it appears that, there are no specific ba

allegations as such against appellant No. 2 Bhaskar about illtreatment. There are allegations, however those allegations om

are general in nature against all five original accused persons. PW-2 Dashrath stated in his evidence that, appellant No. 2 B

Bhaskar did not attend funeral. Except this, specific reference to appellant No. 2 Bhaskar, all allegations in the complaint against appellant No. 2 Bhaskar are general in ::: Downloaded on – 11/03/2014 22:53:33 ::: 58 525.11crapl nature and not specific as such and therefore, in our opinion, since other three accused are acquitted against whom general rt

allegations like against appellant No.2 Bhaskar were levelled, ou

and in absence of specific allegations against appellant No. 2 C

Bhaskar about illtreatment, appellant No.2 Bhaskar is entitled for benefit like other three accused. However, as h

already observed there are specific allegations against ig

appellant No.1 Bappasaheb for demand of Rs. One lakh and on not fulfillment of such demand, threat was given to PW-2 H

Dashrath that, in case such amount is not given, in that case y

he will see what is to be done in future. Not only that, he told ba

PW-2 Dashrath that, Sangita is not good looking and he did not like her. Therefore, so far appellant No.1 Bappasaheb is om

concerned, there is cogent, clinching and sufficient evidence so as to sustain his conviction for giving illtreatment to B

deceased Sangita.

29. The provisions of Section 498-A of the Indian ::: Downloaded on – 11/03/2014 22:53:33 ::: 59 525.11crapl Penal Code are squarely applicable in case of appellant/accused No.1 Bappasaheb. The provisions of rt

Section 498-A of Indian Penal Code reads thus : ou

C

“Section 498A. Husband or relative of husband of a woman subjecting her to cruelty.– Whoever, being the husband or the relative of the husband of a h

woman, subjects such woman to cruelty shall be ig

punished with imprisonment for a term which may extend to three years and shall also be liable to H

fine.

Explanation.- For the purposes of this section,” y

cruelty” means-

ba

(a) any wilful conduct which is of such a nature as om

is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or B

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on ::: Downloaded on – 11/03/2014 22:53:33 ::: 60 525.11crapl account of failure by her or any person related to her to meet such demand.”

rt

30. Upon reading of specific evidence against appellant ou

No.1 Bappasaheb in the light of provisions of Section 498-A of Indian Penal Code reproduced hereinabove, it will have to be C

held that, conviction of appellant No. 1 Bappasaheb for the offence punishable under Section 498-A of Indian Penal Code h

is perfectly sustainable.

ig

H

31. The marriage of appellant No. 1 Bappasaheb with deceased Sangita was solemnized on 12/06/2009 and death y

of Sangita as per prosecution case, was on 24/12/2009. ba

Therefore, death of Sangita is within seven years from the om

date of her marriage. Therefore, in the facts of the present case and in the light of cruelty and harassment at the hands of appellant No. 1 Bappasaheb to deceased Sangita, the B

provisions of Section 304-B of the Indian Penal Code and Section 113-B of the Indian Evidence Act, 1872 gets attracted ::: Downloaded on – 11/03/2014 22:53:33 ::: 61 525.11crapl and squarely applicable to appellant No. 1 Bappasaheb. The provisions of Section 304-B of the Indian Penal Code and rt

Section 113-B of the Indian Evidence Act, 1872 reads thus : ou

C

“Section 304B. Dowry death.–

(1) Where the death of a woman is caused by any h

burns or bodily injury or occurs otherwise than ig

under normal circumstances within seven years of her marriage and it is shown that soon before her H

death she was subjected to cruelty or harassment by her husband or any relative of her husband for, y

or in connection with, any demand for dowry, such ba

death shall be called” dowry death”, and such husband or relative shall be deemed to have caused her death.

om

Explanation.- For the purposes of this sub- section,” dowry” shall have the same meaning as in section 2 B

of the Dowry Prohibition Act, 1961 (28 of 1961 ). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall ::: Downloaded on – 11/03/2014 22:53:33 ::: 62 525.11crapl not be less than seven years but which may extend to imprisonment for life.”

rt

ou

“Section 113-B. Presumption as to dowry death.- When the question is whether a person has C

committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or h

harassment for, or in connection with, any demand ig

for dowry, the court shall presume that such person had caused the dowry death.

H

Explanation.– For the purposes of this section,” y

dowry death” shall have the same meaning as in ba

section 304B of the Indian Penal Code.” om

32. It is submission of learned Counsel appearing for the appellants that, so as to attract the provisions of Section B

304-B of the Indian Penal Code, there should be cruelty and harassment by the husband soon before the death. However, in the facts of the present case, even according to the ::: Downloaded on – 11/03/2014 22:53:33 ::: 63 525.11crapl prosecution witnesses, they met Sangita one month prior to date of occurrence and therefore, provisions of Section 304-B rt

of Indian Penal Code are not attracted. We cannot accept the ou

submission of learned Counsel for the appellants. The said C

submission deserves to be rejected. h

33. In the light of evidence of the prosecution ig

witnesses on record, what is required is that, demand should not be stale one. As already observed, the marriage between H

appellant No.1 Bappasaheb and Sangita had taken place on y

12/06/2009. As stated by PW-2 Dashrath in his evidence, ba

after one month of marriage, Sangita was subjected to cruelty and also harassment by her husband. There was demand of om

Rs. One lakh by appellant No.1 Bappasaheb to the complainant with threat that, in case such demand is not B

met, he will see that, what is to be done in future. It appears that, deceased Sangita was subjected to cruelty and also harassment. As per prosecution case, Sangita died on ::: Downloaded on – 11/03/2014 22:53:33 ::: 64 525.11crapl 24/12/2009 i.e., within 6-7 months from the date of marriage. Therefore, in the present case so far appellant No.1 rt

Bappasaheb is concerned, the provisions of Section 304-B of ou

Indian Penal Code and Section 113-B of the Indian Evidence C

Act gets attracted and squarely applicable and therefore, conviction of appellant No.1 Bappasaheb for the offence h

punishable under Section 304-B of Indian Penal Code is ig

perfectly sustainable.

H

34. So far appellant No. 2 Bhaskar Tukaram Aware is y

concerned, as already observed there are no specific instances ba

or individual allegations that, Sangita was subjected to cruelty by him, are not stated by the prosecution witnesses om

and therefore, in our considered view, conviction so far appellant No. 2 Bhaskar Tukaram Aware is concerned, for the B

offence punishable under Section 498-A, 304-B of Indian Penal Code cannot sustained and like other three accused who are acquitted by the Sessions Court, he is also entitled ::: Downloaded on – 11/03/2014 22:53:33 ::: 65 525.11crapl for acquittal.

rt

35. So far death of Sangita is concerned, the ou

prosecution case entirely rest upon the circumstantial evidence inasmuch as, there is no eye witness. However, C

the important circumstance i.e., deceased Sangita was last seen in the company of appellant No.1 Bappasaheb assumes h

importance. It is true that, the accused can raise probable ig

defence and it is for the prosecution to establish case beyond H

reasonable doubt. In the present case, three different versions have been stated by appellant No.1 Bappasaheb y

about missing of Sangita. As deposed by PW-4 Sitaram ba

in his evidence that, on coming to know on 22/12/2009 that, om

Sangita is missing, he himself, complainant PW-2 Dashrth, PW-5 Chagan and other persons went to Malewadi i.e., village of accused persons and reached there at 11-30 p.m. He B

asked Bappasaheb where Sangita went. Accused Bappasaheb told him that, Sangita went to field at 11-00 a.m. for ::: Downloaded on – 11/03/2014 22:53:33 ::: 66 525.11crapl collecting grass. The appellant lodged missing report on 24/12/2009 with police station, Jamkhed. In the said report rt

it is stated that, on 22/12/2009 (Tuesday) at 11-00 a.m. ou

his wife named Sangita Bappasaheb Aware aged 19 years, C

without saying anything left the house. The description of Sangita is also stated in the said report. The relevant portion h

of said report in vernacular reads thus : ig

ÞeaxGokj rk- [email protected]@09 jksth ldkGh 11 ok- ps lqekjkl iRuh ukes H

lafxrk cIiklkgsc vkokjs o; 19 gh ?kjkr dkgh ,d u lkaxrk ?kjkrqu fu?kqu xsyh frps o.kZu [kkyhy izek.ksß y

This report is given by appellant No.1 Bappasaheb. Third ba

version of appellant Bappasaheb about missing of Sangita from the house as appearing in written statement in defence om

given before the Sessions Court at Exhibit-84 in which it is stated that, on 21/12/2009 in the morning Bappasaheb B

alongwith Nana Aware went to Patoda for supplying milk and thereafter they stayed in shop upto 5-00 p.m. to repair motor ::: Downloaded on – 11/03/2014 22:53:33 ::: 67 525.11crapl cycle of Nana Aware. Thereafter, they came back. After returning back, appellant Bappasaheb learnt that Sangita left rt

house in the morning and has not returned till evening. On ou

22/12/2009 Bappasaheb made phone call to the shop of C

Kailas Yede at Vaijala about missing of Sangita and thereafter from Vaijala, Dashrath Yede and others came to Malewadi h

and therefore, search of Sangita was taken. The relevant ig

statement in the said written statement in vernacular reads thus :

H

Þfnukad [email protected]@09 jksth eh ldkGh ukuk vkokjs lkscr ikVksnk ;sFks nq/k ? kky.;klkBh xsyks gksrks- rlsp ukuk vkokjs ;kaph eksVkj nq:Lr dj.;klkBh lnj y

nqdkaukr vkEgh la/;kdkGh ikp oktsi;aZr gksrks- ba

R;kuarj vkEgh vkyks rj lafxrk gh ldkGh ts xsyh rh la/;kdkGh ijr vkyh ukgh vls letys o eh fnukad fnukad [email protected]@09 jksth oStkGk ;sFks dSykl ;sMs ;kaps nqdkukaoj Qksu ykowu lnjps ?kVusckcr lkafxrys o R;kuarj om

oStkGk ;sFkqu n’kjFk ;sMs o brj ekGsokMh ;sFks vkysk o vkEgh lokZuh frpk ‘kks/k ?ksrykß

B

36. Therefore, upon reading three different versions of the appellants about missing of Sangita from their house,it is abundantly clear that, Bappasaheb told to PW-2 Dashrath ::: Downloaded on – 11/03/2014 22:53:33 ::: 68 525.11crapl that, Sangita went at 11-00 a.m for collecting grass in the field but thereafter Bappasaheb did not know her rt

whereabouts. In his second version in his report to the police ou

on 24/12/2009, he stated that, Sangita left house at 11-00 C

a.m. on 22/12/2009 without informing in the house. The third version as stated by appellant Bappasaheb in his h

written statement in defence before the Court on 20/04/2011 ig

that, on 21/12/2009 he went to village Patoda in the morning for supplying milk and stayed there up to 5-00 p.m. to repair H

motor cycle of Nana Aware and after returning to his house, y

he came to know that, Sangita left house in the morning and ba

did not return even in the evening and therefore, on 22/12/2009 he informed in the spot of Kailas Yede at Vaijala om

about missing of Sangita from the house and thereafter the complainant and others came to Malewadi i.e., village of the B

accused. Therefore, appellant No.1 Bappasaheb has stated three different versions about missing of Sangita from the house and that is the strong circumstance which is appearing ::: Downloaded on – 11/03/2014 22:53:33 ::: 69 525.11crapl against appellant No. 1 Bappasaheb. Appellant No.1 Bappasaheb is husband of deceased Sangita and as already rt

observed even according to the appellants, she left their ou

house at 11-0 a.m. In the light of three different versions C

stated by appellant Bappasaheb, it was for him to establish/place on record how Sangita died. The said facts h

are within special knowledge of appellant Bappasaheb being a ig

husband and custodian of his wife Sangita. Therefore, on careful perusal of three versions as stated by appellant H

Bappasaheb and the fact that, medical evidence clearly y

indicates the death of Sangita is unnatural and homicidal ba

and there is nothing on record that, some other persons were interested to kill Sangita. In his written statement in defence om

he has nowhere stated that, from 21/12/2009 when he came to know after returning from Patoda to his house that, B

Sangita is missing from morning and did not return till evening and thereafter also on 22/12/2009 she did not return to their house, there was no attempt on the part of ::: Downloaded on – 11/03/2014 22:53:33 ::: 70 525.11crapl appellant Bappasaheb to know whereabouts of Sangita or search of Sangita.

rt

ou

. It has come in the evidence on record that, C

message was received in the shop of Kailas Yede at 7-00 p.m. on 22/12/2009 that, Sangita is missing from the house of h

appellants and thereafter, the complainant and other persons ig

went to Malewadi at about 11-30 p.m. The conduct of appellant No.1 not to search his wife or not to have sincere H

efforts to know whereabouts and also the fact that, he did not y

try to search Sangita alongwith PW-2 Dashrath and others as ba

stated by PW-2 Dashrath and PW-4 Sitaram in their evidence, there cannot be slightest room for doubt that, appellant om

Bappasaheb is author of the commission of offence of murder of his wife Sangita. It is impossible to fathom that, as it is B

appearing in three different versions of appellant Bappasaheb on record about missing of Sangita, appellant Bappasaheb ::: Downloaded on – 11/03/2014 22:53:33 ::: 71 525.11crapl did not take any steps to lodge report with the police station. It is only on 24/12/2009 report is lodged with police station, rt

Jamkhed. Though the appellant Bappasaheb stated that, on ou

23/12/2009 he went to lodge report, however, the officials of C

concerned police station refused to accept the complaint since said police station has no jurisdiction, nevertheless belated h

attempt even on 23/12/2009, clearly reflects upon the ig

conduct of appellant Bappasaheb being husband and custodian of Sangita at the relevant time, he alone would H

have thrown light on the death of Sangita since those facts y

were within his special knowledge and even according to him, ba

Sangita left house and no other person had seen her thereafter. The important circumstance that, deceased was om

last seen/was in the company of the appellant is fully established and therefore, upon considering the case of B

prosecution in its entirety, right from demand of Rs. One lakh, harassment and illtreatment to deceased Sangita at the hands of appellant No.1, disliking of Sangita since she was ::: Downloaded on – 11/03/2014 22:53:33 ::: 72 525.11crapl not fair looking as stated by PW-2 in his evidence, death of Sangita is homicidal, three different versions about missing of rt

Sangita given by appellant Bappasaheb, death was within 6 ou

to 7 months from the date of marriage and the fact that, in C

spite of knowing that, Sangita is missing from 21/12/2009 morning as it is reflected in the written statement in defence h

of appellant No.1 Bappasaheb and not taking search of ig

Sangita, defence in statement that, Sangita might have died accidental death is falsified in view of the medical evidence H

and also the fact that, Sangita knew swimming and dead y

body was found in the well which is situated at more than ba

1 km. from the house of accused, there is no slightest room for doubt that, appellant No.1 Bappasaheb has killed his wife om

Sangita. We are fully aware about law laid down by the Supreme Court and various High Courts about appreciation B

of circumstantial evidence. In the light of law laid down by he Supreme Court in the judgments cited supra, we have carefully reappreciated the entire evidence on record and we ::: Downloaded on – 11/03/2014 22:53:33 ::: 73 525.11crapl are of the firm view that, each circumstance in the chain of circumstances has been firmly proved by the prosecution rt

beyond reasonable doubt. The chain of circumstances is ou

complete and it leads to only conclusion that, appellant C

appasaheb-husband of deceased Sangita has committed murder of Sangita.

h

37.

ig

Upon reappreciation of entire evidence, we find that, appellant No. 2 Bhaskar Tukaram Aware has little role H

in the entire commission of offence and therefore, he deserves y

to be given benefit like other three accused who are acquitted ba

by the Sessions Court, Beed. Though it is stated by PW-2 Dashrath that, appellant No.2 Bhaskar did not attend funeral om

of Sangita, however, considering the evidence in its entirety, in our considered opinion, conviction of appellant No. 2 B

Bhaskar Tukaram Aware for the offence punishable under Sections 302, 304-B, 498-A and 201 of the Indian Penal Code is not sustainable.

::: Downloaded on – 11/03/2014 22:53:33 ::: 74 525.11crapl

38. The aforesaid discussion leads us to pass following rt

order:-

ou

C

: O R D E R :

(1) The appeal is partly allowed. h

ig

(2) The judgment and order passed by the Additional H

Sessions Judge, Beed in Sessions Case No. 44 of 2010 dated 04/07/2011 is modified as under :- y

ba

(a) The conviction and sentence awarded to om

appellant No. 2 Bhaskar Tukaram Aware for the offence punishable under Sections 302, B

304-B, 498-A and 201 of the Indian Penal Code is hereby quashed and set aside. He be released forthwith, if not required in any other ::: Downloaded on – 11/03/2014 22:53:33 ::: 75 525.11crapl case. Fine amount, if any, paid by him be refunded.

rt

ou

(b) The judgment and order of conviction C

convicting appellant No. 1 Bappasaheb s/o Bhaskar Aware is hereby confirmed. h

sd/- sd/- [ V.M. DESHPANDE, J.] [ S.S. SHINDE, J.] ig

H

Tupe/28.02.14

y

ba

om

B

::: Downloaded on – 11/03/2014 22:53:33 :::

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