Bombay High Court Ravindra Bhagwan Todkar And Ors.-vs-State Of Maharashtra And Ors. on 11 February, 2004
Equivalent citations:I (2004) DMC 791
Author: V Palshikar
Bench: V Palshikar, P Kakade
V.G. Palshikar, J.
1. Being aggrieved by the judgment and order of conviction and sentence passed on 23.8.1999 by V Additional Sessions Judge, Solapur in Sess. Case No. 130/98 the appellant named above has preferred this appeal on the grounds mentioned in the memo of appeal and as verbally canvassed by the learned Advocate appearing on behalf of the appellant before us.
2. With the assistance of the learned Counsel for the defence and the prosecution we have scrutinized the record and reappreciated the evidence.
3. The prosecution story as disclosed as it emerges on reappreciation of evidence on record stated briefly is that the accused No. 1-Ravindra Todkar is the son of accused No. 2-Bhagwan Todkar and husband of the deceased Sarika who according to the prosecution was throttled to death by the present accused persons. It is the case of the prosecution that the accused persons were harassing the victim demanding dowry or gifts and moneys in the nature of dowry and when she was unable to give the same she was throttled to death on 3.2.1998. Post-mortem was conducted and the death was found to be homicidal by throttling. After investigation the prosecution examined seven witnesses to prove its case that it was the accused persons who throttled Sarika to death on 3.2.1998.
4. The learned Counsel appearing on behalf of the accused submitted that scrutiny of the entire evidence will show that there is no evidence whatsoever against accused No. 2. His participation is not proved, his aiding or abetting is not proved, he has been roped in because he appears to be father of accused No. 1. We have perused and scrutinized the entire evidence and we find that the contention of the learned Counsel for the appellant is correct. Even if the entire evidence as led by the prosecution is accepted conviction of accused No. 2 under Section 302 is unsustainable. We have no hesitation, therefore, in allowing the appeal insofar as accused No. 2-Bhagwan Sadashiv Todkar is concerned because there is no evidence of his having committed murder or having harassed the daughter-in-law to be punished under Section 498A of Criminal Procedure Code.
5. At the same time the evidence on record is very clear. P.W. 3-Dr. Namdeo Patil has deposed that the death of the victim is due to strangulation. In para 4 of his deposition the doctor says that the death was by throttling and then he says in para 6 that he also examined the accused and there were injuries on his hands. He states that such injuries can be caused during struggle. He clearly states that the victim died of throttling and he has deposed that he saw that she had suffered palpable fracture of hyoid bone. There is thus intrinsic evidence in the shape of medical testimony which conclusively proves that the throttling was at the instance of accused No. 1. Perusal of evidence of P.W. 4-Ambadas Mali who is father of the victim and P.W. 5-Usha Jayagaonkar who was neighbour of P.W. 4 will show that there was in the past some dowry demand by accused persons but there is no evidence whatsoever that such demand was made in proximity of the death so as to require punishment under Section 498A. In our opinion there is no substance in this appeal so far as accused No. 1 is concerned, though there is no evidence of conviction under Section 498A. In the result appeal partly succeeds and is partly allowed as under;
(i) Appeal so far as accused No.2-Bhagwan Sadashiv Todkar is concerned is accepted in toto. He is acquitted of all the offences with which he was charged. He is in custody He should be released forthwith if not required otherwise.
(ii) Appeal against accused No. 1-Ravindra Bhagwan Todkar for his conviction under Section 302 is dismissed;
(iii) Conviction of accused No. 1-Ravindra Bhagwan Todkar under Section 498A of Cr.P.C. is set aside.
(iv) Accused No. 2-Bhagwan Sadashiv Todkar be released forthwith if he is not required otherwise.
(v) Office to expedite the writ.