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H vs The State Of Maharashtra on 18 July, 2013

Bombay High Court H vs The State Of Maharashtra on 18 July, 2013Bench: V.K. Tahilramani, P. D. Kode

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ou

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.750 OF 2007

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1.Appaseheb Krishnarao Nulle, ] Age: 56 yrs., ] ]

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2.Sou. Indubai Appasaheb Nulle, ] Age : 48 yrs.

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3.Sou. Geeta @ Sudha Kakasehab Patil, ] H

Age: 20 years, ] ..Appellants. ]

Nos.1 & 2 resident of Ganganagar Hupri ] y

Tal. Hatkangale, Dist. Kolhapur. ] ba

No.3 Janwadi, Tal. Chikodi, Dist. Belgaum. ] V/s.

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The State of Maharashtra ] ..Respondent. CRIMINAL APPEAL NO.995 OF 2007

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Anil Appaseheb Nulle, ] Age: 27 yrs., ] Resident of Ganganagar Hupri ] Tal. Hatkangale, Dist. Kolhapur. ] ..Appellant. V/s.

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The State off Maharashtra ] ..Respondent. rt

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Mr. Arfan Sait, Ld. Advocate appointed for the appellants. Mrs. M.M. Deshmukh, Ld. A.P.P. for the respondent-State. C

CORAM : SMT.V.K.TAHILRAMANI &

P.D. KODE, JJ.

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JUDGMENT RESERVED ON : 19TH MARCH, 2013 ig

JUDGMENT PRONOUNCED ON : 18TH JULY, 2013 H

JUDGMENT (PER : P.D. KODE, J.)

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1. The aforesaid appeals are directed against the judgment ba

and order of conviction and sentence passed by learned Ad-hoc Additional Sessions Judge, Ichalkaranji on 14th June, 2007 in Sessions om

case No.7 of 2007 convicting the appellants for commission of offences under Section 302, 498A, 201 r/w. 34 of the I.P.C. and on the first count sentencing each of them to suffer life imprisonment and to pay a B

fine of Rs.2,000/- i/d. to suffer R.I. for 6 months; on the second count R.I. for 2 years and to pay a fine of Rs.1,000/- each i/d. to suffer R.I. for 6 months and on the third count R.I. for 3 years and to pay a fine of Rs.1,000/- i/d. to suffer R.I. for 6 months. ::: Downloaded on – 27/08/2013 21:07:53 ::: 3

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2. Appellant in Criminal Appeal No.995 of 2007 is original A1 in said Sessions Case while the appellants in Criminal Appeal No.750 ou

of 2007 i.e. respectively father, mother and sister of said appellant were original accused Nos.2 to 4 in said Sessions Case. All of them C

were tried for, in furtherance of their common intention committing offences for which they were convicted and so also offence under h

Section 304B of the I.P.C. in respect of Sou. Laxmi wife of appellant in ig

Criminal Appeal No.995 of 2007 and daughter-in-law of appellant Nos.2 & 3 and sister-in-law of appellant No.4 in Criminal Appeal H

No.750 of 2007. For the sake of convenience and brevity, the appellants are referred as per their original number in the said y

Sessions Case as A1, A2, A3 & A4. ba

3. Deceased Laxmi was the elder daughter of PW6 om

Mahadevi Bhosale, resident of Nipani, Tal. Nipani, Dist. Belgaum. Her marriage was solemnized on 12nd December, 2001 with A1 at Hupari, Ganganagar. The parents of Laxmi had presented gold mangalsutra B

and earring at the time of marriage. She was treated nicely for a period of one year in the matrimonial home. 3.1 According to the prosecution, thereafter even at the time of ::: Downloaded on – 27/08/2013 21:07:53 ::: 4

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her pregnancy a request of her parents for sending her for delivery at rt

their place at Nipani was turned down by A1 to A4 and the parents were reprimanded for not honouring A1 since marriage by presenting ou

valuable articles at festivals. The accused demanded from PW6 an amount of Rs.25,000/- as money spent for delivery of Laxmi in spite of C

PW6 apprising about her poverty and inability to to meet their demand. PW6 had been to the place of accused with clothes and silver h

ornaments for Laxmi after she returned to house of her parents with ig

new born child and stayed for one and half months. According to prosecution, after 5 to 6 months at the time of Ganpati festival, Laxmi H

contacted her parents on phone and informed that accused were demanding Rs.25,000/- and for the said demand, she was starved and y

beaten by them and as such, they should at least partly fulfill the said ba

demand. For the happy life of daughter, PW6 borrowed Rs.5,000/- from brother PW-14 Pundalik and gave to accused persons on the day om

of Anant Chaturthi. However, even then, the accused Nos.3 & 4 reprimanded PW6 as to why she had brought such amount when they were in need of Rs.25,000/-. Few days thereafter, Laxmi came at the B

house of parents along with A1 and the child and apprised regarding ill-treatment to her on the count of demanded money. 3.2 In the last week of July, 2006, A1 contacted PW6 on ::: Downloaded on – 27/08/2013 21:07:53 ::: 5

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phone and informed that Laxmi was sick and PW6 to take her away rt

from their house. PW6 went to Hupari. Laxmi then apprised her that A4 after her return was instigating other accused for demanding ou

money and she was asked to go and fetch the money from parents and after her refusal, she was assaulted and starved by all of them. C

3.3 PW6 again apprised the accused about her poverty and h

inability to meet the demand. However, the accused asked PW6 to ig

take Laxmi back to her house once for all. PW6 has no alternative but to take her daughter away from clutches of accused for time being by H

bringing her to Nipani.

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3.4 On 3rd July, 2006 A1 went to Nipani and questioned Laxmi ba

whether her parents had arranged for payment of balance amount. He insulted her in presence of her parents and warned them that om

drastic steps would be taken against Laxmi in case the demand was not fulfilled and forcibly took away Laxmi and son by motor cycle to Hupari. Thereafter, parents of Laxmi were tormented and totally B

broken down by the demand of accused. 3.5 On 13th October, 2006, A1 contacted parents of Laxmi on phone at 7.00 p.m. and told that he was coming to Nipani along with ::: Downloaded on – 27/08/2013 21:07:53 ::: 6

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Laxmi and they should keep ready the amount of Rs.25,000/- as he rt

was badly in need of money. Accordingly, A1 came to Nipani and questioned PW6 about arrangement made and upon her negative ou

reply, he was annoyed and expressing anguish assaulted Laxmi in front of all the persons gathered at the house of PW6. He dragged her C

by holding her hair and went away by motorcycle threating that in case of non-fulfillment of demand, they would not see Laxmi in future. h

3.6

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On the next day at about 7.00 to 8.00 a.m. A1 phoned PW6 and demanded Rs.25,000/- at once and told otherwise, Laxmi H

would be killed. PW6 apprised her inability to fulfill demand. After a lapse of some time at 9.00 a.m., A1 again phoned PW6 and informed y

that Laxmi had fallen in the well and she had been taken out and ba

removed to hospital. The parents of Laxmi rushed to Hupari and thereafter to C.P.R. Hospital, Kolhapur after learning that she was om

taken to said hospital. However, after reaching the said hospital at 12.30 p.m. they learnt that Laxmi was no more. B

3.7. According to prosecution, Laxmi was earlier taken to Primary Health Centre, Hupari. A3 accompanying her gave history to PW7 Dr.Babasaheb Thorat that Laxmi had fallen on ground. He recorded it in the death register after he found that Laxmi was no more ::: Downloaded on – 27/08/2013 21:07:53 ::: 7

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and informed at police chowky in the hospital. After receipt of rt

information about death of Laxmi, PW17 PHC Ingle and constable Thanekar attached with said chowky drew inquest panchanama in ou

presnce of panch witnesses PW5 Anil Misal and another and forwarded the corpse for post mortem. The post mortem was C

performed by PW8 Dr.Agarwal and PW22 Dr.Pawel. They also took blood samples and forwarded it along with P.C. Thanekar to Laxmipuri h

police station for forwarding it to Hupari police station. A.D.R. No.38 of ig

2006 was registered at Hupari police station and the papers were placed before PW-21 I.O. Sayaji Gavare. H

3.8 PW-6 Mahadevi – mother of deceased Laxmi lodged y

complaint Exh.29 with Hupari Police Station, upon which Crime ba

No.63 of 2006 was registered. PW-21 recorded situation prevailing at the spot of incident by drawing spot panchanama Exh.64. The well in om

the field of Kiran Potdar on the road between Hupari and Ganganagar was pointed out by PW13 Shivaji Annappa Chigre. The said well was without any platform or any built up construction of stones around it B

and was having rough steps. Ladies chappals found near the well were seized by PW-21. PW-21 arrested the appellants on 15 th October, 2006.

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3.9 According to the prosecution, as a sequel to the statement rt

leading to the discovery of concealed lathi (Art.6) made by A1 on 18 th October, 2006, PW-13 seized the stick from the house of A1 to which ou

he had led the police and panch PW-9 Ranware and PW-10 Sambhaji Londhe. PW-21 vide forwarding letter Exh.70 forwarded seized C

muddemal articles to Chemical Analyzer. PW-21 also made specific query to doctors who had performed the postmortem and given h

postmortem notes Exh.38 and probable cause of death Exh.39. At the ig

conclusion of investigation, PW-21 submitted charge-sheet in the Court of J.M.F.C. Ichalkaranji against all the accused for commission of H

offence under Sections 302, 304-B, 498-A, 201 read with 34 of I.P.C. y

3.10 All the accused pleaded not guilty to the charge (Exh.4) for ba

such offences framed against them by the Court of Sessions after the case was committed to the said Court and claimed to be tried. om

3.11 The prosecution, in support of its case, though examined in all 22 witnesses, out of them panch PW-1 Patil for seizure of clothes of B

deceased under panchanama Exh.13; panch PW-2 Hande and PW-3 Giri for seizure of a pair of plastic chappal (Article 5) under panchanama; PW-4 Bhat, panch witness for seizure of petticoat, underwear and blouse under panchanama Exh.25; panch witnesses ::: Downloaded on – 27/08/2013 21:07:53 ::: 9

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PW-9 Ranware and PW-10 Londhe for memorandum and recovery rt

panchanama regarding Exh.68 and Exh.69 at the behest of A1, as well as the witnesses PW-11 Hirugade, PW-12 Chougule and PW-13 ou

Chigre, having not supported the prosecution, the learned A.P.P. was required to cross-examine them after taking leave of the Court. C

4. The defence of the accused was that their financial h

position was much viable and sound compared to parents of the ig

deceased and hence they had incurred marriage expenses by performing the marriage at the place of the A1 and they had no lust for H

money. The further defence of the accused was that Laxmi had met with an accidental death and they were unnecessarily involved in this y

case by the police with a vengeance. ba

5. After appreciation of the prosecution evidence, the Trial om

Court came to the conclusion that in the said prosecution based upon circumstantial evidence, the prosecution has duly established all the accused persons having motive for commission of offences. Laxmi B

has met with homicidal death while in the custody of the accused and her corpse was thrown in well by accused. The accused has subjected her with the cruelty as contemplated under Section 498A of the Indian Penal Code. The conduct of the accused persons or some of them ::: Downloaded on – 27/08/2013 21:07:53 ::: 10

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was inconsistent with the presumption of innocence. The accused rt

failed to give cogent explanation regarding occurrence of death of Laxmi whilst in the custody. The Trial Court concluded that all the said ou

circumstances established, within themselves form a complete chain leading to the inference of the guilt of the appellants in commission of C

murder of Laxmi in furtherance of their common intention and so also causing disappearance regarding the evidence of the offences h

committed by throwing her body in the well. It also concluded of the ig

prosecution having established the accused, in furtherance of their common intention having committed the offence under Section 498A H

read with 34 of Indian Penal Code. Accordingly, the Trial Court convicted and sentenced the appellant as narrated earlier. y

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6. We have carefully considered the submissions at length advanced by both parties and carefully perused the record and om

particularly the judgment appealed to ascertain the correctness of the said findings. After such a perusal, for the reasons stated below, we are of the considered opinion that the Trial Court has rightly arrived at B

the conclusion that all the accused persons in furtherance of their common intention having committed the offences under Section 302, 201 read with 34 of Indian Penal Code and so also subjected Laxmi to the cruelty as contemplated by Section 498A of Indian Penal Code. ::: Downloaded on – 27/08/2013 21:07:53 ::: 11

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7. The perusal of the record reveals that there was no eye witness for crime in question and the prosecution squarely rested upon ou

various circumstances established by the prosecution by adducing evidence. A perusal of the judgment reveals that the Trial Court relied C

on the following circumstances as established by prosecution for coming to the conclusion that the said circumstances taken into h

consideration together forms a formidable complete chain leading to ig

the sole inference of the appellants having committed the offence under Sections 302, 498-A, 201 read with 34 of Indian Penal Code. H

(1) deceased and all accused persons were staying together;

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(2) all the appellant possessing motive for commission of ba

the crime;

(3) deceased being subjected to the cruelty by the om

accused persons;

(4) deceased having met with homicidal death; (5) corpse of deceased was thrown in the well in the field B

of Potdar and same was removed much later and (6) weapon of an offence stick being recovered/seized by PW-21 on 18.10.2006 as a sequel to the statement leading to discovery of the same made by A1. ::: Downloaded on – 27/08/2013 21:07:53 ::: 12

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8. Having regard to the same, as per settled legal position regarding cases involving circumstantial evidence, we propose firstly to ou

examine whether the circumstances relied upon by the prosecution were duly established by cogent and convincing evidence and C

thereafter to ascertain whether circumstance so established forms a complete chain leading to the sole inference of the guilt of the accused h

persons.

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9. In the said process, with regard to the first circumstance H

relied of all the accused persons staying together along with deceased, the reference to the evidence of PW-6 – mother of deceased reveals y

that she has given the deposition more so in conformity with the First ba

Information Report Exh.29 lodged by her. The relevant part of her evidence reveals about marriage of Laxmi with A1 having taken place om

about five years prior to the incident and her relationship of the other accused. She specifically deposed of Laxmi having cohabited after marriage at her matrimonial home and the family of A1 being B

comprised of accused Nos.2 to 4. Corroboration to the said evidence is also found from the evidence of PW-14 Pundalik Shinde – maternal uncle of Laxmi. Similarly, the evidence of PW-11 Maula and PW-12 Sunil, who declared hostile by the prosecution also to the extent of the ::: Downloaded on – 27/08/2013 21:07:53 ::: 13

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accused being their neighbours, is not found discredited either by rt

prosecution or even challenged on behalf of the accused. The case regarding the evidence of earlier witnesses is also not different. ou

Though the perusal of the cross-examination of PW-6 reveals that, as pointed out by learned counsel for the appellant, PW-6 admitted that C

the daughter of A2 was given in marriage to Kakaso Patil at Janvad and marriage of said daughter was solemnized at Janvad and the h

daughters of the sister of PW-6 also resides at Janvad and PW-6 ig

attended the marriage, still we are unable to accept the submission canvassed that the said evidence establishes that A4 was not staying H

at the house of A1. We are of such a considered opinion in view of the evidence of PW-6 surfaced at the trial and so also of any other y

witnesses having not established such a position. Having regard to it, ba

we are unable to accept the submission canvassed that A4 at the relevant time was not residing at the house of A1. In the same context, om

we further add that the learned counsel for the appellants had not brought to our attention even any such a suggestion given on behalf of A4 or on behalf of other accused to any of the prosecution witnesses. B

Further more, after perusal of the record of the examination of A4, in particular, and that all the other accused also does not reveal any such a claim was staked, in the answers given during the said examination either by A4 or any other accused. Resultantly, we find that, as ::: Downloaded on – 27/08/2013 21:07:53 ::: 14

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observed by the Trial Court, the position emerging that A4 was rt

residing at the house of A1 remain unshattered. Such a inference is inevitable as the said evidence considered in proper perspective ou

reveals that A4 was instigating the other accused for harassment and ill-treating Laxmi on the count of non-fulfillment his demand. C

10. Thus, by the above referred evidence, the prosecution has h

duly established the circumstance under consideration of deceased ig

along with the accused persons were staying at her matrimonial house at Hupari.

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11. Now considering the second circumstance of all the y

appellants possessing motive for commission of the crime and third ba

circumstance of Laxmi being subjected to the cruelty, the evidence of her mother PW-6 Mahadevi, her maternal uncle PW-14 Pundalik and om

their neighbours PW-15 Krishnarao Patil and PW-16 Chandrakant Vadke appears to be relevant.

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12. Out of them, firstly, reference to the evidence of PW-6 reveals that she has deposed practically in consonance with the matters stated by her while lodging complaint Exh.29. Without detailing every facet of her evidence, it can be said that she has ::: Downloaded on – 27/08/2013 21:07:53 ::: 15

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deposed in detail about the commencement of harassment rt

commenced to Laxmi after one year of her marriage and since Laxmi became pregnant. A perusal of her deposition reveals that she had ou

given specific instances regarding cruelty, harassment caused to Laxmi and the reason for the same. It reveals that accused persons had C

refused to send Laxmi along with PW-6 and her husband, when they had been to the house of A1 for bringing Laxmi for delivery. It reveals h

that the said refusal was made on the count of PW-6 and her husband ig

having not shown any hospitality since solemnization of marriage. It reveals that, after delivery of Laxmi at hospital at Hupari PW-6 H

requested the accused to send Laxmi at their place but they refused and demanded Rs.25,000/- from PW-6 to meet the expenses of y

delivery. It reveals that, upon PW-6 expressing difficulty and inability ba

to meet said demand, the accused picked up a quarrel and PW-6 has to return to her place.

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13. It reveals that, one month after delivery, the accused persons allowed them to take Laxmi to the place of PW-6. The B

parents spent about Rs.4000/- for gifts for son of Laxmi and sent her back to matrimonial home. It reveals that during the Ganapati festival PW-6 received a phone call from Laxmi at the place of PW-15 Krishnarao Patil that accused were demanding Rs.25,000/- from her ::: Downloaded on – 27/08/2013 21:07:53 ::: 16

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and she was asked to bring said amount from her parents and she rt

was harassed over said demand. It reveals that Laxmi then having told her that she was beaten and starved by the accused. It reveals ou

that PW-6 by narrating said matters to her brother PW-14 Pundalik – resident of Itsamba, taken Rs.5000/- from him and along with him she C

had been to the place of Laxmi and given Rs.5000/- to A1 in presence of other accused persons. It reveals that, accused had then picked up h

a quarrel with Laxmi, PW-6 and PW-14 on account of payment of ig

meager amount of Rs.5000/-. It reveals that, in spite of PW-6 expressing her inability to meet said demand, the ill treatment and H

harassment to Laxmi was continued. y

14. It reveals that, on three occasions, Laxmi and A1 had been ba

to the place of PW-6 on scooter and on all the said occasions Laxmi had complained with them about the demand of accused persons and om

harassment caused at the hands of the accused.

15. The deposition of PW-6 further reveals that, 2-3 months B

prior to the death of Laxmi, A1 phoned PW-6 at the place of PW-15 Krishnarao Patil and informed that Laxmi was ill and PW-6 should come at his place. Accordingly PW-6 had been to his place. Laxmi then started crying after seeing her and on query made by PW-6 by ::: Downloaded on – 27/08/2013 21:07:53 ::: 17

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taking her out of the house of the accused, Laxmi disclosed that she rt

was harassed over non-payment of money and was threatened by the accused for not bringing the amount. It reveals that, Laxmi then ou

disclosed to PW-6 that all the accused persons were harassing her and she was assaulted by them. PW-6 thereon appraised the accused C

persons about her poverty and financial condition and requested them not to harass Laxmi. It reveals that, accused then had told that if they h

fail to fulfill the demand, then they would not be in a position to see ig

their daughter alive next time. It reveals that, PW-6 thereafter had returned to her place, however, Laxmi used to tell her on phone about H

the ill-treatment and harassment caused by the accused persons. y

16. The evidence of PW-6 reveals that on the occasion of ba

Nagpanchami, A1 had been to her place along with Laxmi and the son. It reveals that A1 then threatened her that they may not be able to see om

Laxmi any longer if they fail to fulfill their demand of Rs.25,000/-. It reveals that A1 then assaulted Laxmi in her presence at her house and taken back Laxmi along with him. Her evidence further reveals B

that, on 13th day of a month when A1 contacted PW-6 on phone at Nipani and enquired about the collection of money to be given to him, PW-6 told A1 that it was not possible for her to meet his demand. It reveals that, on the very next day Laxmi met with death. ::: Downloaded on – 27/08/2013 21:07:53 ::: 18

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17. The deposition of PW-6 reveals that PW-6 then contacted PW-14 and told him about the persistent demand of money made by ou

A1 and what she should do. It reveals that thereafter PW-14 and Mahadevi Naik had been to her house at Nipani and in the meanwhile C

A1, Laxmi and her son came to Nipani by 7.00 p.m. A1 then asked Laxmi as to what had happened about his demand and Laxmi asked h

about it to PW-14. PW-14 expressed his difficulty and appraised about ig

his poor condition. A1 then started beating Laxmi in the house of PW-6 at Nipani. PW-14 tried to intervene. However, A1 did not stop beating H

Laxmi. The other persons from locality gathered, also asked him not to assault Laxmi. Laxmi sustained injury to her hand and was taken for y

treatment to the hospital at Nipani. It reveals that even after her return, ba

A1 assaulted her and forcibly took her along with him to Hupari at about 11.00 to11.30 p.m. It reveals that, while leaving the house of om

PW-6, A1 threatened that they would not be able to see Laxmi any more. It reveals that, thereafter at 8.00 a.m. PW-6 received a phone message from A1 that Laxmi has fallen in well and thereafter PW-6 B

along with her husband rushed to Hupari and after reaching Hupary they learnt that Laxmi was taken to C.P.R. Hospital, Kolhapur. PW-6 after reaching hospital found that Laxmi was dead and her death was ensued due to beatings given with lathi by accused persons and ::: Downloaded on – 27/08/2013 21:07:53 ::: 19

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thereafter her body was thrown in the well. It reveals that thereafter rt

PW-6 lodged complaint Exh.29.

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18. After close scrutiny of evidence of PW-6, who was extensively cross-examined, we do not find that core of her testimony C

that Laxmi was harassed on the count of non-payment of demanded Rs.25,000/- and the accused had given the threats as claimed by PW- h

6, is shaken in any manner. A perusal of the cross-examination ig

reveals that except bringing on record inability of rustic witness to tell precisely dates about the events deposed by her and the financial H

position of the accused persons being well, A4 was married at Janwad, PW-6 attended said marriage, any significant thing was brought on y

record. Thus, considering the evidence of PW-6 as a whole, we are ba

unable to find any fault with the findings arrived by the Trial Court of prosecution by the said evidence having established involvement of the om

accused in commission of the offence under Section 498A of Indian Penal Code. We are of such a opinion as the said evidence establishes the dying declarations made by Laxmi from time to time to B

her mother as well as the events witnessed by her. The Hon’ble Apex Court, in the decision in the case of Bhairon Singh .vs. State of Madhya Pradesh, reported in 2009 (3) Crimes 199 (SC) having held that such a declaration made by victim dying subsequently amounts to ::: Downloaded on – 27/08/2013 21:07:53 ::: 20

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a dying declaration. Since the said evidence has remained un- rt

shattered and fulfills ingredients of Section 498A of I.P.C., we find no error was committed by the Trial Court in accepting the evidence of ou

PW-6 and acting upon it for coming to above stated conclusion. C

19. In the same context, now considering the evidence of PW- 14 Pundalik – brother of PW-6, but without detailing his evidence, we h

find that a corroborative account to the matters spoken by PW-6 and to ig

which PW-14 was party, is given by him. His evidence discloses demand of Rs.25,000/- made by accused persons for construction of H

their house and Laxmi was beaten by them for said demand. It reveals that, he tried to persuade Laxmi and appraised her about their y

poverty and requested her to tolerate ill-treatment and harassment for ba

some period. He also deposed regarding PW-6 having asked for Rs.5000/- from him at the time of Ganapati festival and he had om

borrowed same from his employer and given to PW-6 and along with her having been to Hupari. He has deposed about the events happened after the said amount was handed over to A1. All the said B

evidence given by him is in conformity with the evidence of PW-6 about the relevant events. In the similar manner he had given the evidence regarding the events which had occurred on 13th October i.e. after PW- 6 informed him, having been to her house along with Mahadev Naik. ::: Downloaded on – 27/08/2013 21:07:53 ::: 21

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A1 and Laxmi arriving at Nipani at about 7.00 p.m. and the further rt

events happened thereafter i.e. the identical account of the said events as given by PW-6. His evidence also discloses of A1 having warned ou

him for not interfering his family matter after PW-14 told him for excusing his sister and for giving up the demand. Without enlisting C

every matter from his evidence we find that his evidence also remain un-shattered after cross-examination. Similarly, considering the h

matters for which he has deposed, we are unable to give undue ig

significance to the minor omissions brought on record during cross- examination.

H

20. Now, reference to the evidence of PW-15 Krishnarao Patil y

reveals that he was neighbour of PW-6 and very often family members ba

of PW-6 used to come at his residence for receiving the calls of Laxmi and that of PW-14 and other relatives. His evidence also discloses of om

PW-6 having told him regarding ill-treatment and harassment caused to Laxmi after her delivery. He specifically deposed about the receipt of a phone call from A1 on 13th October, 2006 at 7.00 a.m. for PW-6, B

herself being called at his residence and after her conversation with A1 he had questioned PW-6 about the call received. It reveals that PW-6 then told him about A1 demanding Rs.25,000/- from them and asking to keep the amount ready till evening and A1 coming for collecting ::: Downloaded on – 27/08/2013 21:07:53 ::: 22

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said amount at her place. It reveals that PW-6 then expressed her rt

inability to meet the said demand. His evidence reveals that, on the same day at about 7.00 p.m. he had seen A1 along with Laxmi and son ou

proceeding to the house of PW-6 on scooter. It reveals that, after half an hour thereafter he had heard commotions and shouts from the C

house of PW-6 and having joined the persons from the neighbourhood gathered at the said place. His evidence reveals of having witnessed h

A1 catching hair of Laxmi and assaulting her and amongst others ig

saying that, in the event of not paying the money see in what condition he would be placing their daughter and tomorrow they would not be H

able to see her. It reveals that, not paying any heed to the persuation made by PW-15, the A1 had pulled Laxmi by holding her hair and took y

her and child along with him.

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21. The evidence of PW-15 further reveals corroborative om

account, as deposed by PW-6, regarding events occurred after receipt of phone call at his house for PW-6 and her brother. It reveals that, on his enquiry about Laxmi with PW-6, she told that A1 had given B

intimation that Laxmi had fallen in the well and they should come to his place immediately. It reveals that thereafter PW-6 and her brother had been to Hupari. After careful perusal of the cross-examination, we do not find any embellishment in his evidence affecting above narrated ::: Downloaded on – 27/08/2013 21:07:53 ::: 23

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core of his testimony.

rt

22. The reference to the evidence of PW-16 Vadke who was ou

the neighbour of PW-6 also reveals corroborative account of events of 13th October, 2006 as given by PW-15, which amongst others reveals C

of himself having heard commotion from the house of PW-6 at about 8.00 p.m. and having seen A1 assaulting Laxmi and demanding money h

from PW-6. It reveals that after PW-6 expressed her inability to meet his demand, A1

ig

assaulted Laxmi in presence of many persons gathered, A1 having not given any attention to persuation made by H

him and ultimately taken Laxmi by pulling her hair as deposed by PW- 6, PW-14 and PW-15. We do not find his evidence is shattered during y

the cross-examination. Thus, we further find that the evidence of PW- ba

14, PW-15 and PW-16 duly corroborates the evidence of PW-6, which is again found corroborated by the matters stated in the F.I.R. lodged om

by her.

23. In the context of the aforesaid evidence, the Mr.Arfan Sait, B

advocate appointed for the appellants contended that, admittedly, accused No.4 is a married daughter of accused Nos.2 and 3. It was urged that, she was not resident of Hupari, Kolhapur and she was residing at Janvadi, Tal. Chikodi, Dist. Belgaon. It was contended that ::: Downloaded on – 27/08/2013 21:07:53 ::: 24

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the implication of accused No.4 indicates that the evidence of PW-6 is rt

tainted one. It was urged that, no evidence has surfaced that accused No.4 was also residing along with them. It was urged that, on the said ou

ground, the evidence of PW-6 deserves to be discarded against all the accused or at least against accused No.4. C

24. In view of the discussion made earlier regarding the h

prosecution having established the circumstance No.1, we are unable ig

to accept submission canvassed. Discussion made earlier squarely reveals the conclusion having reached of prosecution having H

established that A4 was staying at the house of A1. Hence, even only on the basis of the admission of PW-6 that A4 was married with y

Appasaheb at Janwad but the evidence failing to reveal that she was ba

residing at the said place, we are unable to accept that A4 was residing at Janwad is established on record. Without repeating the discussion om

made earlier, it can be said that the positive evidence of the presence of A4 at the house of A1 being not negatived by any other material brought on record, merely on the facet of marriage of A4 pointed out, B

would not be sufficient to accept such submission. Hence, the further submission cannot be accepted that the defence has established false implication of A4 by PW-6 or other prosecution witnesses and, as such, their evidence is tainted one or is liable to be discarded. ::: Downloaded on – 27/08/2013 21:07:53 ::: 25

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rt

25. As a net result, we find that no error was committed by the Trial Court in accepting the aforesaid evidence inspiring the confidence ou

which within itself establishes both the circumstances under consideration. Such a conclusion is inevitable as the said evidence C

considered in proper perspective duly establishes the motive for the accused persons for committing the crime as well as Laxmi being h

subjected by the accused persons with the cruelty as contemplated ig

under Section 498A of the Indian Penal Code. H

26. Now taking up fourth circumstance of deceased Laxmi having met homicidal death due to the head injury sustained by her, y

after carefully considering the relevant evidence of PW-6 – mother of ba

deceased, PW-7 Dr.Thorat who had occasion to examine firstly the deceased, PW-8 Dr.Vinod Agarwal and PW-22 Dr.Pawale, who had om

carried out the postmortem examination of the corpse of deceased and the later one also having replied the queries made by PW-21 and so also of the Investigating Officer PW-21 as well as of the hostile PW-13 B

Shivaji Chigre, who according to the prosecution was present at the time of taking out of the body of Laxmi; and the judgment appealed, we find that all relevant aspects pertaining to the aforesaid circumstance were elaborately considered and dealt with by the Trial Court in the ::: Downloaded on – 27/08/2013 21:07:53 ::: 26

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judgment in paragraph Nos.12 to 23. Since after careful perusal of the rt

evidence of the above referred witnesses and the relevant facet of the same taken into consideration by the Trial Court and as well as the ou

criticism made thereon and the inference drawn being in consonance with the evidence surfaced at the trial, for the sake of brevity, we do not C

propose to unnecessarily reproduce at length the evidence of each of the said witnesses and only record that the Trial Court correctly h

appreciated and assessed the evidence of the said witnesses for ig

coming to the conclusion of the prosecution having established deceased Laxmi having met with homicidal death due to the head H

injury.

y

27. Now, before dealing in brief gist of the evidence of the said ba

witnesses, we propose to consider the evidence of PW-13 Shivaji Chigre who was cross-examined by the learned A.P.P. on the count of om

himself having not supported the prosecution. In the context of the evidence of the witnesses declared as hostile and cross-examined by obtaining the leave under Section 154 of the Evidence Act, the B

reference to the decision of the Apex Court in the case of Sat Paul v/s Delhi Administration, reported in A.I.R. 1976 SC 294, reveals the Apex Court therein observed in paragraph No.51 as under :- ::: Downloaded on – 27/08/2013 21:07:53 ::: 27

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“51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- rt

examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record ou

altogether. It is for the Judge of fact to consider in each case whether as a result of such cross- examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds C

that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which h

he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is ig

impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.” H

(emphasis supplied ).

Thus, considering the observations made by the Apex Court, it is amply y

clear that reliance cannot be placed upon the evidence of such a ba

witness only in the event if it is found that after cross-examination his credit has been fully shattered, otherwise the matters on which his om

evidence has remained un-shattered can be relied if the same are found to be corroborated by the other independent evidence surfaced B

at the trial.

28. On the said backdrop, reference to the evidence of PW-13 reveals that, on 14th October, 2006 at about 10.00 a.m. while passing nearby the well in the field of Potdar, he heard the commotion of the ::: Downloaded on – 27/08/2013 21:07:53 ::: 28

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children nearby the well, he parked cycle and went to the said place rt

and found that some children were shouting ‘woman fallen’. It reveals that original A3 was present at the said place and she requested him to ou

save her daughter-in-law. It reveals, thereafter, along with one Sheetal he jumped into the well and took out Laxmi. He deposed that, there C

were no steps to the said well and deceased Laxmi was floating on the water. He claimed that he checked the pulse of Laxmi and she was h

breathing. He pressed her stomach for water coming out of her mouth ig

for rescuing her. Laxmi was removed to the house of the accused persons and thereafter he returned home. H

29. The record reveals that, thereafter the learned A.P.P. y

declared him hostile and cross-examined and during the cross- ba

examination it was brought on record that water level of the well was 8 to 10 feet from ground. He had seen injuries on the hand, head and om

legs, radius of the well was to the extent of 7 to 8 persons being able to swim. On the next day, he himself pointed out the police the well from which Laxmi was taken out, however, he had not informed the police B

immediately after taking her out. He claimed of having not told the police the portion marked “D” from his statement recorded by the police. He was not able to give any reason why such portion was found mentioned in his statement recorded by the police. He denied of ::: Downloaded on – 27/08/2013 21:07:54 ::: 29

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having falsely deposed that Laxmi was breathing when he had taken rt

her out and having deposed falsely about portion marked “D”. The record shows that the said portion marked “D” was marked as Exh.67 ou

after the same was duly proved by I.O. The reference to the matters from the said portion Exh.67 reveals contrary claim that neither C

breathing of Laxmi nor her pulse was found in progress and she was dead when PW-13 had taken her out of the well along with Sheetal. h

Thus it can be safely said that he has been completely discredited ig

about his such claim i.e. Laxmi was alive when he had taken her out of the well. However, the remaining part of his evidence of being at the H

well after hearing commotion of children, accused No.3 then present there and having told him to take out her daughter-in-law and having y

himself taken out the daughter-in-law, is not at all discredited by ba

prosecution. The reference to the evidence of PW-21 I.O. reveals that after registration of crime he visited the spot and the same was shown om

to him by PW-13 Shivaji Chigre and he recorded the situation prevailing at the said spot by drawing spot panchanama. Relevant part of his evidence considered along with the said panchanama reveals B

that a pair of chappal (Art.5) was found near the said well. It reveals that said well was not having any platform or built-up constructions by stones to the well. Thus, there being corroboration to the part of the evidence of PW-13 from the evidence of PW-21, which is again found ::: Downloaded on – 27/08/2013 21:07:54 ::: 30

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corroborated by spot panchanama, the said evidence deserves to be rt

accepted. Hence, we find that no error was committed by the Trial Court in relying upon the said evidence for drawing the conclusion. ou

30. Now, resuming the thread of the earlier discussion for the C

circumstance under consideration, the reference to the evidence of PW-7 that while on duty in casualty department of C.P.R. Hospital, h

Kolhapur, on 14th October, 2006 at about 12.30 p.m., deceased Laxmi ig

was brought to the hospital by accused No.3 Indubai Nale. It reveals that accused No.3 had then given the history of Laxmi having fallen H

down on the ground and he had noted the said history in the death register as Entry No.135 i.e. Exh.34. PW-7 thereafter in detail deposed y

about the condition of the deceased Laxmi and deposed about having ba

noticed following 4 injuries :

1) C.L.W. on left hand left wrist ½ cm. X 1 cm with reddish om

scab and same C.L.W. Just above wrist on forearm. 2) Contusion of occipital region 3 x 3 cm. 3) Defused contusion on both things with bluish B

discoloration.

4) Abrasion with patchy redness 1.5 cm. X 1 cm. Superficial skin.

He also deposed regarding cornia of Laxmi being dry and was having ::: Downloaded on – 27/08/2013 21:07:54 ::: 31

Apeal750-995.07Jt

haziness and such a haziness might have been after 5 to 6 hours. He rt

also deposed that bluish discoloration of injury often occurs after 8 to 10 hours. After perusal of the cross-examination, we find that the said ou

evidence of PW-7 was not shaken or shattered during the cross- examination. Hence, we do not find that any error was committed by C

the Trial Court in relying upon the said evidence giving due regard to the fact that PW-7 was the first doctor who had examined Laxmi. We h

also do not find any error committed by the Trial Court in coming to the ig

conclusion on the basis of his evidence that Laxmi was dead even prior to her removal from the well. Similarly, we do not find that, on the H

basis of the said evidence the Trial Court having declined to accept the theory of Laxmi being alive when taken out of the well as tried to be y

propagated by PW-13 apart from the fact of himself being discredited ba

of his such a claim as narrated earlier. We further find that the Trial Court, after taking into consideration the symptoms of drowning as om

given in Modi’s Medical Jurisprudence and Toxicology 23rd Edition, on page 600, and reproduced in the judgment, had thereafter scanned the evidence of other witnesses. It reveals that the Trial Court B

has correctly taken into consideration the injuries noticed by PW-6 upon the corpse of Laxmi when she had seen her at C.P.R. Hospital, Kolhapur. We find that, in the context of the said injuries, the Trial Court rightly took into consideration the evidence of PW-7 that, by ::: Downloaded on – 27/08/2013 21:07:54 ::: 32

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palpation process he examined the injuries and given the opinion that rt

injury on occipital region can be caused by hard and blunt object and injuries mentioned by him on thigh and occipital regions were possible ou

by lathi (Art.6) i.e. the lathi recovered at the behest of A1. The Trial Court also rightly took into consideration his evidence that he had not C

noticed any external symptoms of injury of drowning on the dead body. Similarly, considering nature of disparity occurred in mentioning h

surname occurred in Exhs.34 and 35 i.e. mentioning of name Mule ig

instead of correct name Nulle of the victim, the Trial Court has negatived the defence version about the relevant entry being related to H

somebody else. After carefully considering the said reasoning, we do not find any error was committed by the Trial Court in coming to such y

conclusion.

ba

31. The perusal of the judgment further reveals that the Trial om

Court, after considering the evidence of PW-8 Dr.Agarwal, who was one of the doctor who had performed postmortem on dead body of Laxmi along with PW-22 of having noted the following five injuries :- B

1) Contusion right thigh super lateral 10 x 6 cm bluish, on cut section infiltration of blood was seen. 2) Contusion on left thigh mid front 6 x 6 cm. Bluish on cut ::: Downloaded on – 27/08/2013 21:07:54 ::: 33

Apeal750-995.07Jt

section infiltration of blood was seen. rt

3) Abraded contusion right hand and forearm back 10 x 8 cm red-blue on cut section infiltration of blood was seen. ou

4) Contusion on occipital region 3 x 3 cm on cut section reddish.

C

5) Contusion right shoulder blade, back 3 x 3 cm. on cut section infiltration of blood was seen; h

and all said injuries were fresh and ante-mortem, as there were no ig

signs of drowning noticed by him and during internal examination he found (1) haematoma on occipital protuberance red 3 x 3 cm and (2) H

subdural haematoma found 100 cc red and the opinion given that the said internal injuries might have been caused due to hard and blunt y

object and all injuries noted by him were possible by Article 6 and ba

considering the other evidence in detail, had come to the conclusion of Laxmi having homicidal death. Since we find all the discussions made om

in paragraph Nos.16 to 19 of the judgment being based upon the evidence of the doctor remained un-shattered after the cross- examination and the cogent reasons given by the doctor during the B

evidence for arriving at the conclusion narrated herein above, no error was committed by the Trial Court for coming to the finding of Laxmi having met with homicidal death. ::: Downloaded on – 27/08/2013 21:07:54 ::: 34

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32. We further find that the Trial Court rightly not accepted the rt

theory propagated by PW-13 of Laxmi being alive, for the reasons given in paragraph Nos.20 and 21 of the judgment on the basis of the ou

medical evidence of PW-8 adduced by the prosecution and the other matters related to his evidence. Resultantly, we are unable to find any C

fault with the said reasoning given by the Trial Court in the light of the reasoning given by us earlier regarding the said respect. h

33.

ig

We further find that, for the elaborate reasoning is given by the Trial Court in paragraph No.23 of the judgment wherein the Trial H

Court, on the basis of the evidence of PW-21 regarding the situation of a well, the fact of pair of chappal lying near the well and the same y

being not ladies chappal, came to the conclusion that the evidence ba

denotes that after causing the death, corpse of Laxmi was thrown in the well. Since we find the said reasoning recorded by the Trial Court om

being based upon the evidence referred in the said paragraph and logical and after taking into consideration the injuries sustained by Laxmi and all the possibilities connected with herself found in the well, B

had arrived at the conclusion as aforesaid. Hence, we are unable to find any fault in the said reasoning given.

34. As a net result of the aforesaid discussion, we find that the ::: Downloaded on – 27/08/2013 21:07:54 ::: 35

Apeal750-995.07Jt

prosecution by the said evidence has established the fourth rt

circumstance under consideration and so also the fifth circumstance of the corpse of Laxmi was thrown in the well in the field of Potdar and ou

the same was removed much later on by PW-13 with the help of Sheetal.

C

35. Now with regard to the sixth circumstance of the weapon h

of an offence stick being recovered/seized by PW-21 on 18.10.2006 as ig

a sequel to the statement leading to discovery of the same made by A1, the prosecution had mainly placed reliance upon the evidence of H

PW-21 Investigating Officer as the panch witnesses for the relevant episode of A1 making a statement regarding the concealed stick and y

leading panchas and the Police to the place at which he had concealed ba

the said stick and produced it and the same was seized by PW21; did not support the prosecution. After perusal of the evidence of om

Investigating Officer PW-21, we find that through his evidence prosecution has established such a facet, as we do not find any circumstance elicited during his cross-examination rendering his such B

cogent evidence regarding occurrence of such an event is shattered in any manner. The learned counsel for the appellants as canvassed on behalf of the appellants before the trial Court urged that establishment of the relevant circumstances being based upon the evidence of the ::: Downloaded on – 27/08/2013 21:07:54 ::: 36

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interested witness Police Officer and independent witness panch rt

PW10 having not supported the prosecution takes away all the significance of the said recovery. ou

36. After perusal of the judgment appealed and particularly the C

reasoning recorded in paragraphs 25 to 27 , we find that for the cogent reasons recorded for not accepting such submission, the trial Court h

discarded it and accepted the evidence of PW-21 being capable of ig

proving the relevant aspect i.e. the circumstance under consideration. After carefully perusing evidence of PW-21 and the said reasoning and H

the decisions of the Apex Court referred therein, we find no error was committed by the trial Court in discarding the said submission and y

accepting the evidence of PW21. Without repeating the said reasoning ba

with which we are in agreement, we only say that said reasoning reveals that presumption of a truth to the evidence given on oath is om

equally available to the evidence of honest Police Officer and the evidence of PW-21 being of such a nature, his evidence was not liable to be discarded on the ground of independent panch witness PW10 B

having not supported the prosecution. Resultantly, we find that the prosecution has established the sixth circumstance under consideration.

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37. Thus after assessing the prosecution evidence and after rt

coming to the conclusion of the prosecution having established the above referred six circumstances, now considering the effect of said ou

circumstances, we find that the trial Court after meticulously considering the said circumstances and so also the additional C

circumstance of the conduct of A1 in producing the stick, the conduct of A3 in giving the false history of a fall on the floor by Laxmi to PW7 h

Dr. Thorat who had firstly examined Laxmi and so also the chappals ig

which were found near the well were not ladies chappal, had arrived at the conclusion of guilt of all the appellants. The trial Court during the H

said reasoning given in paragraphs 28 to 38 arrived at the conclusion that the said circumstances were capable of forming a complete chain y

leading to the sole inference of guilt of all the appellants for ba

commission of offences for which they were convicted and sentenced by the trial Court. However, the trial Court also arrived at the om

conclusion of the said circumstances and/or the prosecution evidence being not sufficient to prove the charge for offence under Section 304- B of I.P.C. against any of the appellants. B

38. After carefully perusing the said reasoning given by the trial Court, we find that the same is based upon the evidence surfaced on record and particularly the evidence having established the above ::: Downloaded on – 27/08/2013 21:07:54 ::: 38

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referred circumstances and the additional features referred by us in the rt

preceding paragraphs. We further find that during the said reasoning, the trial Court correctly took into consideration the provisions of ou

Section 106 of the Indian Evidence Act for coming to the conclusion that the since deceased living along with all the appellants, the failure C

of the appellants to explain the circumstance in which she met with a homicidal death leads to the conclusion of themselves being guilty in h

commission of offence under Section 302 read with 34 of I.P.C. The ig

trial Court also came to the conclusion that finding of corpse of Laxmi in a well away from her house and herself having not met the death H

due to drowning clearly indicates that after her death, her corpse was thrown in the well in the field of Potdar. In the light of the said y

conclusion, the trial Court found the appellants guilty for offence under ba

Section 201 read with 34 of I.P.C. The trial Court also found the appellants guilty for an offence under Section 498-A read with Section om

34 of I.P.C.

39. In the discussion made hereinabove, we have already B

indicated that the main submission of the learned counsel for the appellants that A4 sister of A1 was not residing with them, cannot be accepted. Hence we are unable to accept the submission canvassed for the same reason that the conviction and sentence recorded by the ::: Downloaded on – 27/08/2013 21:07:54 ::: 39

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trial Court against A4 was improper. The learned counsel for the rt

appellants also tried to urge that at the most A1 who was husband and at whose behest the stick was recovered or his mother A3 who was ou

found to be nearby well or who had given false history to PW7, could have been held guilty and at least the benefit of doubt deserves to be C

given to A2 and A4. It was also tried to canvass that even though the stick was recovered at the behest of A1, the prosecution had not h

established the nexus of the said stick with the crime in question as ig

prosecution has failed to establish that any blood was found on the said stick.

H

40. After carefully considering the reasoning given by the trial y

Court and taking into consideration true import of Section 106 of the ba

Indian Evidence Act, we do not find any force in the said submission. Needless to add that the defence had not established that at the time om

of occurrence of the offence in all probability in the house of the appellants either A2 or A4 were not residing in the house when the offence in question had taken place. At the cost of repetition, we state B

that the position has not been established on the record that A4 though married sister, was not residing at the house of A1. As a matter of fact the evidence to the contrary effect has surfaced on the record and discussed by us earlier. The submission canvassed also ignores the ::: Downloaded on – 27/08/2013 21:07:54 ::: 40

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evidence given by the Doctor that injuries caused to Laxmi were rt

possible by the stick. Now considering the injuries sustained by Laxmi and none of them being bleeding injuries, it will be fallacious to expect ou

finding of the blood on the stick which is said to have been used as weapon of an offence. Thus we are unable to find fault with the C

findings arrived by the trial Court that in view of Laxmi residing along with them and having met homicidal death, no case being made out of h

the appellants being not present in the house in the relevant night, the ig

non-explanation by them regarding the circumstances in which Laxmi met with a death, considered in the light of unexplainable conduct of A3 H

of giving false history to PW7 as well as an attempt to make a show of Laxmi having fallen in a well, clearly establishes nexus of the y

appellants with the crime in question. ba

41. Resultantly, we find that no error was committed by the trial om

Court of the prosecution evidence having established the guilt of all the appellants for commission of the offences for which they were convicted and sentenced by the trial Court. Hence we do not find any B

merit in the appeals preferred and dismiss the same.

42. Registry to furnish copy of the judgment to the appellants in custody through the Superintendent of Prison at which they are ::: Downloaded on – 27/08/2013 21:07:54 ::: 41

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lodged.

rt

43. The appellants, who are on bail, are granted six weeks ou

time to surrender to the bail, failing which the trial Court to take requisite steps for securing their presence for undergoing the C

sentence awarded to them.

h

44. Appreciating the valuable services rendered by the learned ig

appointed counsel for the appellants in arguing the appeals and assisting us for arriving at a conclusion, we quantify his fees at H

Rs.3000/-.

y

ba

(P. D. Kode, J.) (Smt. V.K. Tahilramani, J.) ….

om

B

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