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The State Of Maharashtra vs Govind Ramrao Jadhav And Ors on 9 January, 2018

Cri.Appeal 551/2002
1

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

CRIMINAL APPEAL NO. 551 OF 2002

The State of Maharashtra
through Police Station,
Osmannagar, Taluka Loha,
District Nanded ..Appellant

Versus

1. Govind s/o Ramrao Jadhav,
Age 20 years, Occu. Agri.,
R/o Sugaon, Taluka Loha,
District Nanded

2. Ramrao s/o Deorao Jadhav,
Age 65 years, Occu. And
R/o as above

3. Babu @ Deorao s/o Ramrao
Jadhav, Age 24 years,
Occu. Agriculturist,
R/o Sugaon, Taluka Loha
District Nanded

4. Sow. Sulochanabai w/o Ramrao
Jadhav, Age 55 years, Occu
Household, r/o as above .. Respondents

Mr R.V. Dasalkar, A.P.P. for appellant
Mr A.M. Gaikwad, Advocate for respondents

CORAM : T.V. NALAWADE AND
A.M. DHAVALE, JJ

DATE OF RESERVING
THE JUDGMENT : 5.12.2017

DATE OF PRONOUNCING
THE JUDGMENT : 9.1.2018

JUDGMENT (Per A.M. Dhavale, J.)

1. This appeal is by the State against judgment of acquittal passed

by learned II Joint Additional Sessions Judge, Nanded in Sessions Case

No.18/2001 on 10.6.2002. By the impugned judgment, the husband,

brother-in-law and parents-in-law of deceased bride who suffered

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unnatural death within short period after her marriage were acquitted

of offences punishable under Sections 498-A and 302 read with Sec.34

of Indian Penal Code.

2. The facts relevant for deciding this appeal may be stated as

follows:

On 21.10.2000 at 3.45 p.m., F.I.R. Exh.34 was lodged at

Osmannagar police station, Taluka Loha, District Nanded by P.W.1

Mohan, uncle of the deceased Saptafula. As per F.I.R., deceased was

daughter of P.W.1 Mohan’s sister Rajabai resident of Kamlaj, Taluka

Loha. She was given in marriage to accused no.3 Babu (A-3) about

three years before the incident. The marriage was performed at

Kamlaj. Accused no.2 Ramrao and Accused no.4 Sulochana are

parents and accused no.1 Govinda is brother of accused no.3 Babu.

At the time of marriage, as per agreement, Saptafula’s father P.W.3

Govinda had given dowry in the form of Rs.25,000/- cash with one tola

gold and household articles. However, the marriage took place one

year late from the agreed date. Saptafula thereafter started co-

habiting with her husband at Sugaon and she was treated well for a

period of one year, but thereafter they started ill-treating her. They

started demanding Rs.10,000/- and one tola gold on account of delay

in marriage. Her husband, parents-in-law and brother-in-law used to

assault her and physically and mentally ill-treat her. Her maternal

relatives including P.W.1 Mohan tried to persuade her in-laws. Still,

Saptafula was assaulted on account of not meeting the demands of

the accused persons for additional Rs.10,000/- and one tola gold and

about six months before the incident, she was driven out. She then

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resided at her maternal house for about six months. Then, there was

meeting of her maternal relatives and in-laws and as per the

settlement, Saptafula was sent back to her matrimonial house for co-

habitation. Saptafula had been to her maternal house for celebration

of Nag-panchami festival and at that time, she complained about the

ill-treatment by her husband and in-laws with demand of dowry. Still,

her maternal relatives persuaded her to resume co-habitation after

Nag-panchami was over. On 21.10.2000 at 11.00 a.m., when P.W.1

Mohan was at Ijali village, he received message from one person at

Kamlaj that Saptafula had died at Sugaon. His sister Rajabai and her

relatives had also arrived there and they came to Sugaon. They found

dead body of Saptafula in the house and nobody else was in the

house. They noticed several injuries on the chest, ribs, neck and legs.

Injuries indicated that she might have died due to dragging by tying

with a rope resulting into peeling of her skin and causing bleeding

injuries. Saptafula was aged 20 years. He then went to police station

and lodged the F.I.R.

3. On the basis of the F.I.R., crime was registered at

C.R.No.79/2000 under Sections 498-A, 302 read with Sec.34 of Indian

Penal Code and was investigated into by P.W.7 P.S.I. Kubade. He drew

inquest panchnama Exh.36, spot panchnama Exh.37 and sent the

dead body for post mortem. He also seized clothes of the deceased

under panchnama Exh.38. He recorded statements of material

witnesses and arrested the accused no.1 Govind on the same day.

The remaining accused were arrested on 23 rd October 2000. He

forwarded the seized articles to the office of Chemical Analyst and

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

the Court of Judicial Magistrate, First Class. The prosecution relied on

the opinion of the Medical Officer that deceased met with homicidal

death by suffocation due to throttling.

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

Learned Additional Sessions Judge framed charge under Section 498-A

and Section 302 read with Sec.34 of the Indian Penal Code at Exh.15.

The prosecution examined seven witnesses as follows :

(A) P.W.3 Govinda, father, P.W.1 Mohan maternal uncle and the

informant (Exh.34), P.W.4 Kamalbai paternal aunt, P.W.5 Raosaheb, a

neighbour.

(B) P.W.6 Medical Officer, Dr. Vitthal Paratwagh (Post mortem

Exh.45 and provisional death certificate Exh.46)

(C) Panch to the inquest, spot and seizure of clothes panchnamas

Exh.36, 37, 38, P.W.2 Tukaram

(D) P.W.7 Investigating Officer P.S.I. Kubade.

5. The cross-examination of the witnesses disclosed two fold

defences. One defence is that deceased Saptafula died due to

Tetanus. The other defence shows that some outsider murdered her

and committed theft of her necklace. Accused no.1 Govind has stated

in his statement under Section 313 of Cr.P.C. that he was alone at the

house. He took a defence of total denial and stated that Saptafula’s

body was swollen and at the time of removing the clothes, her skin

was peeled off. Hence, there were injuries on her person. P.W.2

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Tukaram, P.W.3 Govinda, P.W.4 Kamalbai have taken a defence that

they were not at the home. They had gone to village Ladla. P.W.2

Tukaram, father-in-law has claimed that Saptafula and her husband

were residing separately from him and he was not aware how she

died. Accused no.3 Babu, husband has also stated that Saptafula was

residing with her maternal relatives for six months and had returned

to him on the date of incident. He was not at home. His younger

brother was at home. He had not known how she had expired. P.W.4

Kamalbai has also claimed that she was out of station and she had not

known when Saptafula came and how she expired.

6. The learned Additional Sessions Judge disbelieved the

prosecution witnesses to hold that cruelty to Saptafula by her husband

and in-laws was not proved. He took pains to refer to medical

jurisprudence by Modi extensively to heavily criticised the Medical

Officer and disbelieved his evidence regarding homicidal death.

Therefore, all the accused were acquitted of all the charges. Hence

this appeal.

7. Learned A.P.P. Mr R.V. Dasalkar has taken us through the

evidence on record and argued that it is a clear case of homicide

inside the matrimonial home and, therefore, it was a custodial death.

Burden was on the accused to prove as to how Saptafula died but they

have not discharged the burden to explain about the injuries on the

body of Saptafula as she was throttled/strangulated to death. There is

reliable evidence to show that she was subjected to dowry demands

and ill-treatment and Saptafula was constrained to stay at her

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maternal house for a period of around six months. Saptafula had

returned and resumed co-habitation after mediation and assurance

given by accused no.2 Ramrao that she would be treated well. He

submitted that the learned trial Judge erred in disbelieving the

evidence of Medical Officer by referring to Modi’s medical

jurisprudence, which was not shown to the Medical Officer. He,

therefore, submitted that the order of acquittal should be set aside

and all the accused should be convicted under Section 498-A and 302

read with Sec.34 of Indian Penal Code.

8. Per contra, Mr A.M. Gaikwad, learned Advocate for the

respondents strongly supported the judgment of trial Court. He

argued that there is no reliable evidence about dowry demands and

ill-treatment. The marriage had taken place three years back and

Saptafula was treated well by her in-laws. He argued in detail about

the medical evidence and the discrepancies noted in the evidence of

Medical Officer. He relied on treaties from Parikh’s jurisprudence to

submit that there was no symptoms of asphyxia due to throttling or

strangulation were found and, therefore, the opinion given by Medical

Officer cannot be relied upon. Learned Additional Sessions Judge has

discussed in detail as to why the evidence of Medical Officer was

unreliable. He, therefore, argued that the homicide itself was not

proved and therefore, the acquittal of the accused was reasonable

and probable view and the same cannot be interfered with in the

appeal.

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9. The points for our consideration with our findings are as follows:

(I) Whether accused no.3 husband
Babu and accused nos.1 Govind,
accused no.2 Ramrao and
accused no.4 Sulochanabai as
in-laws subjected Saptafula
to cruelty and dowry demands
and thereby committed offence
under Section 498-A read with
Sec.34 of Indian Penal Code ? ..In the negative

(II) Whether Saptafula met with
homicidal death and if yes,
whether accused nos.1 to 4 in
furtherance of their common
intention committed murder/
dowry death of Saptafula ? ..In the affirmative

(III) What order ? .. The appeal is
allowed.
All the accused are
convicted u/s 302/
34 of I.P.C. and
convicted to
imprisonment for
life and fine of
Rs.1,000/- i/d
R.I. for 20 days

– REASONS –

10. The evidence on all three points is intermingled. If it is the

homicidal death, then it becomes custodial death and depending upon

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the presence of the accused in the house, the allegations of dowry

demands and ill-treatment is the main motive for commission of the

crime and, therefore, all the points are required to be decided

together.

11. P.W.1 Mohan is maternal uncle of Saptafula. P.W.3 Govinda is

her father. P.W.4 Kamalbai is paternal aunt and P.W.5 Raosaheb is a

mediator. Their evidence shows that deceased Saptafula was resident

of Kamlaj, Taluka Mudkhed. While, the accused are residents of

Sugaon, Taluka Loha. Saptafula was given in marriage to accused

no.3 Babu about three years before the incident on 21.10.2000. At

the time of death, Saptafula was aged twenty years. P.W.1 Mohan

alone has stated that at the time of marriage, dowry of Rs.25,000/-

was paid. Thereafter, the accused treated Saptafula well for a period

of one year.

12. P.W.1 Mohan, P.W.3 Govinda, P.W.4 Kamalbai and P.W.5

Raosaheb residents of Halda, Taluka Kandhar stated that they learnt

about dowry demand of Rs.10,000/- by all the accused from Saptafula

and ill-treatment on account of not meeting the demand. P.W.1 Mohan

stated that this demand of dowry and ill-treatment was on account of

non-performance of marriage within one year. Besides, there was

demand of one tola gold. As the said demand was not met, Saptafula

was driven out of the house and she had to stay with her parents.

P.W.1 Mohan has not stated that Saptafula had personally told him

about these events. Even as per evidence of P.W.3 Govinda,

Saptafula had narrated these incidents to her mother. He did not state

that Saptafula was driven out of the house by the accused, but stated

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that he came to know about ill-treatment. He went to her house and

brought her back. He admitted that Saptafula had given information to

her mother and grandmother and P.W.4 Kamalbai has also not stated

that Saptafula personally told her about the ill-treatment and dowry

demands by the accused. Similarly, P.W.5 Raosaheb has no personal

knowledge. Nevertheless, it is in the evidence that Saptafula, due to

differences with the accused was residing at her maternal house.

Then, there was a meeting for mediation. According to P.W.1 Mohan,

Saptafula’s father, his brother Kisan and Raosaheb had gone to the

accused for persuading them and thereafter, Saptafula resumed co-

habitation. P.W.3 Govinda, father of Saptafula stated that accused

no.1 Govind came to their house and settlement took place at his

house due to assurance given by accused no.2 Ramrao that Saptafula

would be treated well and thereafter, he took decision to send

Saptafula to her matrimonial house. P.W.4 Kamalbai has also stated

that the accused came to her and in the meeting, it was decided that

Saptafula would resume co-habitation. That time, her father assured

that she would be treated well. He will give one tola gold to the

accused and the matter was settled. P.W.5 Raosaheb stated that he,

Vyankat, Kondiba and Kisan had gone to the parents of Saptafula.

Accused no.2 Ramrao was with them. Then, the matter was settled

and Saptafula was sent back for co-habitation. That time, P.W.3

Govinda had assured to present one tola gold if Saptafula would be

treated well by the accused and then Saptafula resumed co-

habitation. The cross-examination of P.W.1 Mohan shows that after

Saptafula’s marriage, he had never gone to the accused. He has not

stated before the police that parents of Saptafula and other ladies had

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gone to the accused for persuasion. He has also not stated that his

brother had gone for bringing Saptafula. His evidence that Saptafula

was threatened of her life if she would not meet the demand is also by

way of material omission. He deposes that he lodged F.I.R. only after

coming to know that Saptafula died of throttling.

13. Cross-examination of P.W.3 Govinda (father) reveals that his

brother used to fetch Saptafula from her matrimonial house and

accused no.2 Ramrao used to come to his house for taking back

Saptafula for co-habitation on several occasions during three years. It

seems there is cross-examination that Saptafula had not attend

puberty at the time of marriage and at the time of attaining puberty, a

customary ceremony was performed. His relatives were sent to the

house of the accused and the sweets were distributed. His relatives

stayed there for one day. It was three months, before the death of

Saptafula. During next three months till the death of Saptafula, P.W.3

Govinda had not gone to her house. He never expected that

Saptafula would die.

14. Evidence of P.W.4 Kamalbai shows that her husband Kondiba

had brought Saptafula to her maternal house for Nag-panchami

festival and Saptafula had again made complaint of ill-treatment.

P.W.5 Raosaheb has deposed about the mediation. He admitted that

his wife and Saptafula’s mother were real sister.

15. The evidence of maternal relatives of Saptafula about dowry

demands and ill-treatment on that count is not very convincing, but it

is certain that there were differences between Saptafula and her

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husband and in-laws and, therefore, Saptafula stayed at her maternal

house for some months and she had returned to her matrimonial

place about six months before the incident. The evidence shows that

before Nag-panchami she has resumed co-habitation and had been to

her matrimonial house for Nag-panchami and again had gone to her

matrimonial house. There is no evidence to show that Saptafula had

returned to her matrimonial house one day before the incident. The

evidence shows that Saptafula due to differences resided at her

maternal house and few months before her death, she resumed co-

habitation after settlement in a meeting.

16. We find no reliable evidence to hold the accused guilty for

offence punishable under Section 498-A of the Indian Penal Code.

17. The evidence of P.W.1 Mohan, P.W.3 Govinda, P.W.4 Kamalbai

and P.W.5 Raosaheb shows that on 21.10.2000 at about 10.00 a.m.,

P.W.3 Govinda received message that Saptafula had expired. Then,

he and his relatives including P.W.1, P.W.3 and P.W.4 visited Sugaon.

P.W.3 Govinda stated that they reached Sugaon at about 3.30 p.m.

The evidence shows that they were informed that Saptafula died of

tetanus but they have found injuries on her chest, neck and other

parts of the body. P.W.1 Mohan stated that there were blood stains,

but no injury on the private part of the Saptafula, but it is difficult to

believe that P.W.1 Mohan could have seen the private part of

Saptafula. P.W.3 Govinda vaguely stated that he had seen marks of

assault on the body of Saptafula. P.W.4 Kamalbai, paternal aunt has

also vaguely deposed about the injuries seen on her person. P.W.5

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Raosaheb has stated that he had seen assault on abdomen, chest and

back of the deceased Saptafula.

18. P.W.2 Tukaram and P.W.7 P.S.I. Kubade are the panch witnesses

to the inquest panchnama Exh.36 drawn at 4.30 p.m. on 21.10.2000.

P.W.2 Tukaram has stated that there was mark of rope along the waist

ring and the neck of deceased Saptafula. There were also injuries on

her person. Accordingly, panchnama Exh.36 was drawn and he has

signed it. P.W.7 P.S.I. Kubade has not deposed about details of

inquest panchnama that he deposed about drawing of the

panchnama.

19. It must be mentioned here that the panchnamas drawn are not

substantive peace of evidence. The evidence of the witnesses to the

panchnama is a substantive piece of evidence and the contents of

panchnama can be used for corroboration only.

20. Evidence of P.W.6 Dr. Vitthal Paratwagh is most material. He is

B.A.M.S. and was attached to Primary Health Center, Kapsi, Taluka

Loha on 21.10.2000. Dead body of Saptafula was brought on that day

along with request letter for post mortem. He conducted post mortem

and found the following injuries :

1) Injury over bilateral side of the neck, grievous around
the neck. The direction of the injury was on front to back and
the time was within 24 hours, the colour of the injury was
reddish blackish.

2) Multiple injuries as abrasion over the chest

3) Special injury over the lumber as ring but deep at front

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side. It was reddish blackish in colour, front in direction
within 24 hours

4) Throat cartilages were compressed and dislocated and
hyoid bone was dislocated.

He deposed that those were ante mortem and the probable

cause of death was suffocation due to throttling resulting into

respiratory arrest. His post mortem report is at Exh.45. He stated that

these injuries were possible due to tetanus. He stated that injury

nos.1 and 4 were possible due to compression of neck and injury

nos.2 and 3 were possible due to use of Article 3 rope. He stated that

injury nos.1 and 4 were possible due to Article No.2 and injury nos.2

and 3 were possible due to Article no.3. His evidence has been

discarded for following reasons :

(I) Though the post mortem was conducted on 21.10.2000, the

post mortem notes were signed by him on 27.11.2000.

(II) He stated that he has not recorded the history, but recorded

story whereby it was commented that whatever he had seen is his

opinion. He was not knowing what is history.

(III) He has used inquest panchnama for post mortem examination.

He filled up colomn no.5 by using post mortem notes (This column is

required to be filled up by using the inquest report and police report.

There is nothing suspicious about it). He denied that during asphyxia,

brain is always congested. He admitted that in case of death due to

suffocation heart is congested. He had preserved portion alveoli,

which is small tissue of lungs. He stated that he has preserved

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oedema when it is not a part of body, but only swelling. (He had

immediately corrected himself). Perhaps he meant that he had taken

sample of swelling for sending to Chemical Analyst.

(IV) He admitted that in anti mortem injuries, bleeding is very less

and there is no clotting. He had not seen any old injury due to

beating. He admitted that there was no ligature mark shown in

column no.17. He has not recorded as to whether injury no.1 was

caused by nails or finger print. He admitted that his opinion regarding

use of weapon for causing injury shown in column no.17 is guess work

and not upon the nature of injuries. He stated that throttling means

compression of front portion of neck, but he was confused whether it

was a case of throttling or strangulation. His post mortem notes show

that thorax including walls ribs and cartilages were intact. He stated

that there was compression of thorax. He explained that intact means

there was no fracture. He claimed that the contents of post mortem

notes Exh. 45 in clause 20 are correct. His post mortem report shows

that larynx, trachea and bronchi were compressed. He admitted that

it was necessary to take photographs of dead body in case it was a

case of strangulation. He stated that photographs were taken, but

those were not produced.

21. The learned Additional Sessions Judge has discussed in detail

the evidence of Medical Officer in paragraphs no.13 to 19. The

learned Additional Sessions Judge has extensively used medical

treaties from medical jurisprudence to disbelieve the Medical Officer.

In Pratap Mishra Vs. State of Orrisa AIR 1977 SC 41. It is held

that :

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” The learned Sessions Judge has taken great pains to
refer to various books on Medical Jurisprudence to
disbelieve the evidence of P.W.8 on the question that the
prosecutrix could not have been raped beyond 22 to 48
hours of the time, when she was produced before Doctor.
The learned Sessions Judge tried to demolish the two
reasons given by the Doctor on the basis of medical
opinions referred to by some authors. In the first place, it is
well settled as to when a particular injury was caused and
in the instant case as to the exact time when the accused
had sexual intercourse. Even in case of opinion that rape
might have been committed 24 hours ago, it may be
actually 18 to 19 hours as well. In these circumstances, it
was not at all necessary either for the Sessions Judge or for
the High Court to have made a detailed research on this
point which was more or less futile. The High Court has
based on decision in Bhagwandas Vs. State of
Rajasthan, AIR 1957 SC 589 and Sunderlal Vs. State
of M.P. AIR 1954 SC 28 had deprecated the approach of
Judges in drawing strong adverse conclusion by relying
upon the particular passages in Medical Books without
drawing attention of the Doctor who has examined the
victims to such passages. It is evident that the Doctor who
has examined the victims is in the best position to depose
about the medico-legal aspects of the offence committed
on the victim.”

22. The trial Judge who had recorded the medical evidence has

ample opportunity to show the medical treaties to the doctor and seek

his explanation before disbelieving him with regard to his expert

opinion.

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23. The evidence on record shows that deceased Saptafula was just

aged 20 years. She died in her matrimonial house, where all the

accused were residing along with her. The intimation about her death

was given to P.W.3 Govinda, her father on 21.10.2000 at 10 a.m. The

post mortem notes show that there were little contents found in

stomach. Opinion about time of death is, she would have taken her

last meal probably pre-of the 24 hours. The post mortem notes show

injuries over bilateral side of the neck, grievous in nature caused

within 24 hours, reddish black in colour and multiple injuries as

abrasion over the chest. There was special injury over the lumber in

front side reddish black in colour front direction, caused within 24

hours. Injury no.4 is that there was compression and dislocation of

throat cartilages wear, hyoid bone was found dislocated. There was

compression of larynx, trachea and bronchi. We admit that the

evidence of Medical Officer is not very much satisfactory, but

nonetheless he is qualified Medical Officer having degree in medicine

and he had performed medical examination. P.W.6 Dr. Paratwagh has

stated that no injuries were found inside the skull and brain was found

intact. He did not mention whether there was any congestion in the

brain or not. His cross-examination shows that in case of asphyxia,

there will be congestion in the brain, which he has denied.

24. Learned Sessions Judge should not have given undue

importance to the fact that post mortem notes was bearing date

27.11.2000. It is common practice of Medical Officer to take the rough

notes at the time of post mortem and thereafter prepare the post

mortem report. If there was any doubt, the defence should have

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called upon the doctor to produce the rough notes, but that has not

been done either by the defence lawyer or by the learned Sessions

Judge. P.W.6 Dr. Paratwagh has admitted that there was no ligature

mark mentioned in column no.17. His opinion that the injuries could

have been caused by handkerchief or rope may be or may not be

correct, but his evidence that there was compression and dislocation

of throat cartilages and hyoid bone along with compression of larynx,

trachea and bronchi is facts noticed by him. It is not his opinion. His

cross-examination does not reveal any ground to disbelieve him about

the factual matter of compression and dislocation as stated by him.

Merely because the photographs were not taken, it cannot be said

that the Medical officer has given false report at the instance of one of

the parties. It was wrong approach on the part of learned Additional

Sessions Judge. It is a matter of fact that 20 years old married girl has

met with a death with no previous history. The death took place at

her matrimonial house. It can be assumed to be unnatural. The

defence has taken contrary circumstance that she met with death due

to tetanus. There is no evidence when she had sustained any injury

which could have caused tetanus. There is no medical evidence to

show that the symptoms found in her body were similar to those

caused by tetanus. There is another stand that the death could have

been by attack of epilepsy. There is no whisper that Saptafula was

suffering from epilepsy. There is no medical history that she has

taken treatment for tetanus or epilepsy.

25. Learned Additional Sessions Judge clearly erred in allowing the

defence to bring on record some statements of the witnesses in

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examination through the cross-examination of Investigating Officer

under the garb of the facts disclosed in the investigation. In view of

clear bar of Section 162 of Cr.P.C., it was not permissible for the

defence to bring on record the facts stated in the statements of some

witnesses and even otherwise that would be hit by rule of hearsay

evidence. This hearsay evidence shows that Saptafula was having

high temperature and the accused were treating her through one

Sarsabai and one Maulasab who were not the doctors. The defence in

this regard is extremely vague and the accused have not stated

anything in the statements recorded under Section 313 of Cr.P.C.

about this stand. There is absolutely no evidence to show that

Saptafula might have died due to attack of epilepsy or attack of

tetanus. The accused did not stop here. They also invented a story

about theft of necklace and murder by some outsider. Except the

suggestions to that effect there is no material whatsoever to consider

this suggestion.

26. There is clear and cogent evidence of Medical Officer regarding

compression of neck with dislocation of thyroid cartilages and hyoid

bone and compression of larynx, trachea and bronchi. The evidence

on record has to be appreciated in the light of the defence raised and

it is the duty of trial Judge to find out the truth. In Jai Kumar Vs.

State of M.P., 1999 (5) SCC 1, the Apex Court has observed :

” Justice is supreme and justice ought to be beneficial for
the society so that the society can be placed in a better-
off situation. Law courts exist for the society and ought
to rise up to the occasion to do the needful in the matter
and as such ought to act in a manner so as subserve the

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basic requirement of the society. It is the requirement
of the society and the law must respond to its need. The
greatest virtue of law is its flexibility and its adaptability,
it must change from time to time so that it answers the
cry of the people, the need of the hour and the order of
the day.”

27. When the evidence shows that Saptafula did not die due to old

age, there must be some reason for her death. She was residing

along with along with the accused and it is certain that the accused

must be aware of the cause of her death. The accused made different

stories of death i. e. attack of epilepsy, death by attack of tetanus and

murder by outsider for robbery of necklace, but the accused have not

led any cogent material by way of defence nor extracted any

admissions from the witnesses to substantiate any of these defences.

Saptafula, aged 20 years who was hell and hearty had no any history

could not have died by natural death and there is atleast no record to

show that she had met with natural death. In the circumstances, we

find no reason to disbelieve the evidence of P.W.6 Dr. Paratwagh, who

is an independent person having no personal interest in the matter.

Some mistakes committed by him here and there will not make him

untrustworthy or incredible witness. From the evidence on record, we

are satisfied that Saptafula died due to compression of neck, causing

compression of throat cartilages and hide bone and dislocation

thereof. We find no reason to defer with the opinion of Medical Officer

that she met with a death due to suffocation due to throttling. There

are injuries on the neck externally as well as internally supporting the

opinion.

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28. It is obvious that the injuries sustained by Saptaphule could not

have been accidental or self inflicted. We, therefore, hold that it is a

case of homicidal death.

29. When the death of a bride has taken place in her matrimonial

house and it is proved to be homicidal, it is the responsibility of the

inmates of the house as well as the persons, who normally resided in

that house to explain how she has met with death. It is clear case of

custodial death. We rely on Trimukh Maroti Kirkan Vs.State of

Maharashtra,(2006) 10 SCC 681, in which after considering the

case law on custodial death, it was observed :

“13. These crimes are generally committed in complete
secrecy inside the house and it becomes very difficult for
the prosecution to lead evidence. No member of the
family, even if he is a witness of the crime would come
forward to depose against another family members. The
neighbours, whose evidence may be of some assistance,
are generally reluctant to depose in court as they want to
keep aloof and do not want to antagonise a neighbourhood
family. The parents of other family members of the bride
being away from the scene of commission of crime are not
in a position to give direct evidence which may inculpate
real accused except regarding the demand of money or
dowry and harassment caused to the bride. But, it does
not mean that a crime committed in secrecy or inside the
house should go unpunished.

14. ..where the assailants have all the opportunity to
plan and commit the offence at the time and in
circumstances of their choice, it will be extremely difficult
for the prosecution to lead evidence to establish the guilt

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of the accused if the strict principle of circumstantial
evidence, as noticed above is insisted upon by the courts.
A judge does not preside over a criminal trial merely to see
that no innocent man is punished. A judge also presides to
see that a guilty man does not escape. Both are public
duties. The law does not enjoin a duty on the prosecution
to lead evidence of such character which is almost
impossible to be led or at any rate extremely difficult to be
led. The duty on the prosecution is to lead such evidence
which it is capable of leading.

15. …the initial burden to establish the case would
undoubtedly be upon the prosecution, but the nature and
amount of evidence to be led by it to establish the charge
cannot be of the same degree as is required in other cases
of circumstantial evidence. The burden would be of a
comparatively lighter character. The inmates of the house
cannot get away by simply keeping quiet and offering no
explanation on the supposed premise that … its case lies
entirely upon the prosecution and there is no duty at all on
the accused to offer any explanation.

16. …the prosecution is not required to prove its case
with mathematical precision to a demonstrable degree;
for, in all human affairs absolute certainty is a myth, and
all exactness is a fake…unattainable, the law accepts for it
probability as a working substitute in this work-a-day
world. Thus, legal proof is not necessarily perfect proof;
often it is nothing more than a prudent man’s estimate as
to the probabilities of the case. Since it is exceedingly
difficult, if not absolutely impossible, for the prosecution to
prove facts which are especially within the knowledge of
the opponent or the accused, it is not obliged to prove
them as part of its primary burden. The presumption of
innocence is, no doubt, presumptio juris; but every day’s
practice shows that it may be successfully encountered by

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the presumption of guilt arising from the recent
(unexplained) possession of stolen property. It will only
alleviate that burden, to discharge which, very slight
evidence may suffice.”

The Apex Court in paragraph no.18 and 20 relied on
the judgments of State of W.B. v. Mir Mohd. Omar
(2000) 8 SCC 382 and Ram Gulam Chaudhary v.
State of Bihar (2001) 8 SCC 311 to hold ” The pristine
rule that the burden of proof is on the prosecution to
prove the guilt of the accused should not be taken as a
fossilised doctrine as though it admits no process of
intelligent reasoning. The doctrine of presumption is not
alien to the above rule, nor would it impair the temper of
the rule. On the other hand, if the traditional rule relating
to burden of proof on the prosecution is allowed to be
wrapped in pedantic coverage, the offenders in serious
offences would be the major beneficiaries and the society
would be the casualty.”

30. In the present case we find that the accused have given false

explanation that Saptafula might have died of tetanus or due to attack

of epilepsy. They have not given any explanation how she had

sustained the injuries. Therefore, the onus of explaining the facts

within the special knowledge of the accused had not been discharged.

The irresistible conclusion that can be drawn is that the accused who

were residing of the house or were normally residing in the house

must have committed her murder.

31. There is evidence that all the accused were treating Saptafula

well for one year and thereafter, they were harassing her. The

prosecution examined P.W.1 Mohan (uncle), P.W.3 Govinda (father),

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P.W.4 Kamal (aunt) and P.W.5 Raosaheb. To none of these witnesses it

was suggested that accused no.1, 2 and 4 were residing separately

from accused no.3. On the contrary, it was suggested that whenever

Saptafula was going to her maternal house, every time accused no.2

used to go her for fetching her for co-habitation. The evidence

nowhere suggests that accused nos.1 to 4 were not residing together.

32. The post mortem notes Exh.45 show that Saptafula was

provided no meals and she died about 24 hours thereafter. Her

stomach was found empty. Her maternal relatives came to her

matrimonial house. The accused were absent. Accused no.1 claimed

that he alone was present. The conduct of the accused is also not

consistent with their defence. It is no doubt true that it was by the

injuries could have been caused by one or two persons and the other

two might not have actually participated, but they were very much

present there. They are consenting parties. They are not ready to

disclose the acts of their family members. In the light of the verdict in

Trimukh Vs. State (cited supra), in absence of any acceptable

explanation by the accused, we hold accused nos.1 to 4 to have

shared a common intention and committed murder of Saptafula. The

learned Additional Sessions Judge has considered the evidence with a

totally wrong approach and came to a wrong conclusion. Hence, the

findings recorded by the trial Judge are not sustainable. Hence, the

appeal deserves to be allowed and the accused deserved to be held

guilty under Section 302 read with Sec.34 of Indian Penal Code.

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33. The offence has taken place around 17 years back. We do not

find that this will come under the special category of rarest of rare

case. Hence, it is unnecessary to give hearing to the accused when

we are sentencing the accused for a minimum sentence of

imprisonment for life. Hence, the order :

– ORDER –

(I) The appeal is allowed.

(II) The judgment in Sessions Case No.18/2001 on 10.6.2002,

delivered by 2nd Additional Sessions Judge, Nanded, acquitting the

respondents of the offences punishable under Section 302 read with

Sec.34 of Indian Penal Code, is hereby set aside and the accused

nos.1 to 4 are convicted for offence punishable under Section 302

read with Sec.34 of Indian Penal Code and each of them is sentenced

to suffer imprisonment for life and to pay fine of Rs.1,000/- in default

to suffer rigorous imprisonment for twenty days each.

(III) The bail bonds of the accused stand forfeited. They shall

surrender before the learned trial Judge within fifteen days for

undergoing the sentence.

( A.M. DHAVALE, J.) ( T.V. NALAWADE, J.)

vvr

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