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Vivek Maruti Nale vs The State Of Maharashtra And Anr on 31 July, 2019

Criminal Appeal NO. 270-271.2012.final.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 270 OF 2012

Vivek Maruti Nale,
Age 32 years,
residing at Kulkarni Wasti, Malshiras,
District Solapur . …. Appellant

Versus

1. The State of Maharashtra

2. Shri. Dnyaneshwar Dattatraya Parkhe,
Age adult, residing at Navi Sanghvi,
Samarth Nagar,Pune. … Respondents

WITH
CRIMINAL APPEAL NO. 271 OF 2012

1. Maruti Ganpat Nale,
Age 73 years,

2. Smt. Shantabai Maruti Nale,
Age 67 years,

Both residing at Kulkarni Wasti, Malshiras,
District Solapur …. Appellants

Versus

1. The State of Maharashtra

2. Shri. Dnyaneshwar Dattatraya Parkhe,
Age adult, residing at Navi Sanghvi,
Samarth Nagar,Pune. … Respondents

Mr. Tapan Thatte with Mr. Siddharth R. Rongue for the appellants.

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Mr. Arfan Sait, APP for the State.

CORAM : B.P. DHARMADHIKARI
MRS.SWAPNA JOSHI, JJ.

RESERVED ON : 19/07/2019
PRONOUNCED ON : 31/07/2019

ORAL JUDGMENT (Per Dharmadhikari,J.):

The appellant in Appeal No. 270 of 2012 Vivek happened to

be husband of deceased Smita. Two appellants in Appeal No. 271

of 2012 are his parents. Appellant no.1 in Appeal No. 271 of

2012 filed by the parents is no more. Accordingly by separate

order passed on 19/7/2019 we have treated the appeal at his

instance abated. So Appeal No. 271 of 2012 survives only at the

instance of mother of Vivek and mother in law of deceased

Smita.

2. The Ad Hoc Additional Sessions Judge, Malshiras has by

judgment and order dated 25/1/2012 in S.C. No.54 of 2010

convicted the husband for the offence punishable under section

498A read with section 34 IPC as also under sections 3 and 4 of

Dowry Prohibition Act. He is also convicted under section 302 IPC

and sentenced to suffer life imprisonment for murder of

deceased Smita. He has been punished with rigorous

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imprisonment of 5 years and with a fine of Rs. 15,000/- for

offence under section 3 of the Dowry Prohibition Act for R.I. for 1

month and to pay fine of Rs. 1,000/- under section 4 of the Dowry

Prohibition Act.

3. Accused nos.2 and 3 (parents of accused no. 1) are

acquitted of the offence punishable under section 302 read with

34 IPC, however, they are convicted for the offence under

section 498A read with 34 IPC, for offence under section 304-B

read with 34 IPC and under section 3 and 4 of Dowry Prohibition

Act.

4. Rs.25,000/- out of the total fine amount is directed to be

paid to complainant towards compensation under section 357(c)

Cr.P.C.

5. Along with these accused persons, sisters of accused no. 1,

their husbands and brother of accused no.1 were also joined as

accused. Trial court has acquitted accused nos.4 to 10 of all the

offences.

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6. We have heard Advocate Thatte with Advocate Rongue for

the appellants and learned APP Mr. Sait for the State

Government.

7. We may at the outset point out the circumstances relied

upon by learned APP to oppose the appeal. Learned APP has

pointed out that the death has taken place in the matrimonial

house. Accused no.1 husband and accused no.3 mother in law

were then present in the house. They have not explained the

death in any way but have given false explanation under section

313 Cr.P.C. Their contention that Smita committed suicide is not

borne out from the records and Smita admittedly has not left

behind any suicide note. Her conduct or behaviour was normal

and does not support any intention to commit suicide. Accused

no.1 wanted to re-marry and therefore, he has done this.

8. Marriage between accused no.1 and deceased had taken

place on 1/5/2005 and the incident in question occurred in the

night between 23rd and 24th May, 2010.

9. Mr. Thatte, learned counsel for the appellants submits that

the complaint to police is lodged by PW 4 Dnyaneshwar father of

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Smita. The story of ill-treatment, demand of money are all

false. He has fabricated the instances to somehow trouble the

accused persons and their family members. Therefore, only the

first information report was lodged almost after three days and

still important part of demand is found to be an omission.

Without prejudice, he adds that efforts made by accused no. 1 to

obtain the employment or sale of ornaments of his wife for that

purpose, does not amount to cruelty at all. His cross

examination is heavily relied upon with the argument that he left

blank papers signed with police and permitted the police to

develop a story against the accused persons. He left it to police

to choose the accused to be implicated and also to choose the

witnesses.

10. The Judgment of Apex Court in the case of Vipin Jaiswal Vs.

State of A.P. : 2013 AIR (SC) 1567 1 paragraph 6 is relied upon to

submit that facts narrated in deposition by PW 4 do not

constitute “demand” in the eyes of law.

11. He also points out how the mother of Smita i.e. PW 6 has

attempted to support PW 4.

1 2013 AIR (SC) 1567

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12. He relies upon the evidence of Raziya PW 5 neighbour who

was declared hostile. He argues that the police did not record

her statement under section 161 Cr.P.C. at all and she was

contradicted with not her own but the statement of one Taslim

Salim Shaikh under section 161 Cr.P.C.

13. Recovery under section 27 of the Evidence Act from

accused is also seriously challenged. He submits that handing

over of the ornaments of his deceased wife by accused no.1 to

police does not imply that he has any connection with the

crime. He also points out by referring to inquest and deposition

of PW 1 that the then ornaments on the person of the deceased

were handed over to relatives of the accused. He also states that

when the informant PW 4 reached the residence of accused

persons, the body of Smita was already sent for post mortem and

inquest was already over.

14. The evidence of PW 7 Dr. Dixit is criticized by pointing out

that his inference of throttling is not supported by the facts

noticed by him. The second injury shows only one impression on

one side of the neck and as such the throttling stands overruled.

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In case of throttling there has to be prints/injuries on both the

sides of the neck and PW 7 in cross examination in paragraph 9

accepted that there were no such injuries on the neck of

deceased. He further points out that nothing was found in the

nail clippings of the accused.

15. He relies upon the judgment of the Apex Court in the case

of State of U.P. Vs. Dr. Ravindra Prakash Mittal : 1992 AIR (SC)

20452 particularly paragraph 21 for the proposition that in the

cases based upon circumstantial evidence, the prosecution has

to also exclude the possibility of involvement or guilt of any other

person. As there is no such investigation, the accused no.1

husband is liable to be acquitted. According to him, the case of

the husband as also the case of the parents in so far as section

302 IPC is concerned, does not stand on different footing and

hence, the husband also ought to have been acquitted by the

trial court.

16. Learned APP has relied upon the circumstances mentioned

by us a the beginning of the judgment to demonstrate that the

complete chain has been brought on record. This chain and

2 1992 AIR (SC) 2045

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section 106 of the Evidence Act, indicate accused no.1 husband

as the offender under section 302 IPC. The evidence of other

witnesses show involvement of accused nos. 1 to 3 in other

offences.

17. He states that the evidence of PW 7 Doctor who has

conducted post mortem is very clear. It shows that the Doctor

found impressions on both sides thereby indicating the cause of

death as throttling only. Doctor has categorically stated that it

was not the case of hanging. The accused persons have only

generally cross examined the doctor and have not given him

any specific suggestions.

18. Inviting attention to spot panchanama Exh. 70, learned APP

argues that the incident has taken place on two different spots

i.e. in two different rooms of the house. In room adjacent to

kitchen the deceased was throttled while in other room the show

of her committing suicide was staged by tying saree to the hook

in ceiling.

19. He relies upon the long portion of saree hanging down

below the hook to state that nobody could have hanged himself

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to death with it as there is no distance left from the floor.

20. Learned counsel states that it is in these circumstances

that the hiding of ornaments of deceased becomes relevant and

therefore, section 27 recovery thereof is used as one of the

circumstances.

21. To explain the scope and use of section 106 of Evidence Act

and the burden put upon the accused, learned APP relies upon

the judgment of the Apex Court in the case of Trimukh Maroti

Kirkan Vs. State of Maharashtra : (2006) 10 SCC 681 3 and the

judgment in the case of Mulakh Raj and Others Vs. Satish Kumar

and Others : (1992) 3 SCC 43 4 for that purpose. He therefore,

prays for dismissal of the appeal.

22. As against this, counsel for the appellants in reply

arguments says that the symptoms of asphyxia disclosed by PW

7 are absent in the present matter. He draws attention to the

post mortem report at Exh. 61, particularly paragraph 13 thereof

for this. He requests the Court to allow both the appeals.

3 (2006) 10 SCC 681

4 (1992) 3 SCC 43

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23. The first question before this court is whether the death of

Smita in the night between 23rd and 24th May, 2010 is homicidal

or not. Post mortem report Exh. 61 mentions the death due to

asphyxia due to throttling as the cause thereof. PW 7 Dr. Dixit

has conducted this post mortem. Injury no.2 found by him is as

under :

“Bruise of size 2 x 1 cm, Oval disc shaped on

right sub mandibular region.”

The corresponding injury to it is mentioned as

injury no. 3 which is as under :

“Bruise of size 1 cm x 1 cm disc shaped on

left sub mandibular region, lateral and just lower to

bruise mentioned at injury no. 2.”

24. The appellants while advancing arguments have overlooked

the co-relations between these two injuries. Submission that

there is only impression of thumb or finger impression on one

side of the neck and there is no such impression on the other

side is therefore, erroneous and unsustainable.

25. This witness has specifically stated that all injuries of the

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deceased were ante mortem. Those injuries are :

“1. Multiple redish band of abrasions at anterior neck
of size 7 cm x 2.5 cm extending from carotid region
on right side to left mandibular angle below thyroid
level.

2. Bruise of size 2 x 1 cm, Oval disc shaped on
right sub mandibular region.

3. Bruise of size 1 cm x 1 cm disc shaped on left
sub mandibular region, lateral and just lower to
bruise mentioned at injury no. 2.

4. Bruise of size 2.5 cm x 1.5 cm oval, disc shaped
on right side of neck above the level of right thyroid
cartilage.

5. Abrasions of size 1 cm x 2 cm, 4-5 in numbers
on right side of neck near the injury mentioned at
serial no. 1.

6. Fracture of hyoid bone.”

26. Doctor has supported his conclusion by stating that the

injuries mentioned in column 17 and 18 of the post mortem

report are possible by throttling with hands. He also mentioned

that he found thumb impression on the neck of the deceased.

27. His cross examination shows that he has not mentioned the

age or cause of injuries in the post mortem report. He accepted

that at 6.15 am on 24/5/2010 accused no. 1 brought the body of

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Smita to Rural Hospital and he examined it. He also identified

accused no. 1 in the Court. Accused no.1 told him that deceased

Smita has committed suicide by hanging herself with a saree to

the ceiling fan. He accepted that accused no.1 was continuously

requesting him to explore the possibility of saving the life of

Smita but he communicated his helplessness since she had

already died. PW 7 states that ultimately he communicated the

death of Smita to the parents. He also proved the written

communication sent by police as Exh. 67.

28. Perusal of Exh.67 shows intimation to police of the body

being brought dead by accused no. 1 in the name of the

deceased. This intimation is received by the police at 6.30 am.

29. Cross examination of this doctor further reveals that his

attention was drawn to the Commentary by Dr. Modi. He denies

that the swelling of tissues due to decomposition can be

misunderstood as bruises. He accepted that in case of deceased

Smita, the process of decomposition had started. He further

accepted that there was no mortuary in Malshiras Hospital and

also there was no facility of cold storage. The dead body was

lying open before the post mortem. In summer the

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decomposition starts early.

30. He also accepted that in case of violent asphyxia the face

will be pale and edimetous, the pupils will be dilated and the

eyes will be prominent. He accepted that in case of violent

asphyxia there will be bleeding from mouth, nostrils and ears and

tongue protrudes out. He denied that the symptoms mentioned

by him in post mortem report are possible in case of hanging by

saree. He denied that in the hanging, there is possibility of

fracture of hyoid bone. He accepted that in case of throttling,

finger marks or pressure of thumb and finger tips appear on

both sides of wind pipe. He accepted that bruises will appear

on front side as well as on back side of neck and there is

possibility of abrasions and bruises on mouth, nose,

cheeks,forehead, lower jaw and face. He accepted when the

victim struggles for life and there is possibility of injuries on

other part of the body.

31. His cross examination however, does not wipe out the

impact of symptoms like fracture of hyoid bone and injury nos. 2

and 3 mentioned supra. We find the conclusion that it was the

case of throttling by hands, is justified by medical evidence.

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32. The spot panchanama Exh. 70 also reveals the same. This

panchanama Exh. 70 shows that the spot is in the room which is

shown as a kitchen in the map but then in the spot panchanama

it is mentioned that in the said room, chairs of Nilkamal

company were stored. The blue colour saree was tied to the hook

meant for ceiling fan and her husband (accused no. 1) told that

with the said saree the deceased had hanged herself. The

height of roof from the floor was 9 ft 7 inches and the saree is

seen hanging below below the hook and thus the length of that

portion from the hook towards the floor was 7 ft 5 inches. On

eastern side of the said saree, 7 fiber chairs of Nilkamal company

were arranged and its height was 2 ft 7 inches. On western side

near the wall, 11 chairs were stored and the height of that was

3 ft 4 inches. There were about 85 Nilkamal chairs in the room.

The western wall of that room had black kadappa platform on

which 6 iron gas stoves with regulator were seen. Police have

seized that saree. Similarly, they have also seized double bed

sheet which was on mattresses in the adjoining room.

33. In so far as this double bedsheet is concerned, the

prosecution has not explained its relevance and there is no report

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of Chemical Analyzer about it. Learned APP however, urged that

after throttling the deceased there, she was hanged. But then

prosecution does not establish any saliva or other secretion to

support this version.

34. The height of the deceased has not come anywhere on

record but then considering the fact that the roof was at the

distance of 9 ft 7 inches and the portion of saree hanging down

was about 7 ft and 5 inches, it follows that hardly distance of 2 ft

and 7 inches was left between the lower end of saree and the

floor. The panchanama does not mention that the tied saree had

any knots or wrinkles which could support the theory that the

deceased committed suicide by hanging by it. Saree was also

shown to PW 7 and PW 7 has denied that the said saree Article A

was of rough cloth.

35. The spot panchanama therefore does not show that the

deceased reached the roof by using some chair or table and

after hanging herself, kicked the same aside. The panchanama

also does not mention similar material used by the accused no.

1 to bring down the allegedly hanging body.

36. This material therefore, conclusively rules out any suicide

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by deceased Smita.

37. This brings us to consideration of the material in support of

the conviction of accused persons under section 498A, 304-B IPC

or under Dowry Prohibition Act.

38. Mr. Dnyaneshwar Parkhe, father of deceased Smita has

been examined as PW 4. He points out that after the marriage,

for about one year the accused persons offered nice treatment to

his daughter. Vivek was jobless and he started demanding Smita

Rs. 25000/- and to get it from PW 4 for employment. He withdrew

that amount from his bank, went to Malshiras and handed over

the amount to accused no. 3. As the total amount was still falling

short, golden ornaments weighing 5 tolas given by him to Smita

in the marriage were disposed of by accused no. 1 and he got

employment as peon in a school. Smita was then subjected to

illtreatment and torture. Whenever, she fell ill, she was sent to

her parental home for medical treatment. Smita delivered female

child. After the delivery, accused no.1 took Smita and new born

to matrimonial house. Accused no. 3 had in the meanwhile

brought back her daughter (accused No. 10) Manisha from her

matrimonial house. Manisha and accused no. 2 used to curse

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Smita on cooking and other household issues. Smita was also

falling ill frequently because of this and accused no. 1 reached

Smita and her daughter to PW 4. Smita stayed for about three

months. PW 4 called accused nos. 1, 2, 3, 6, 7, 8 and 9 at his

house and then accused no. 1 Vivek agreed to cohabit with

Smita but rest of the accused persons walked out of his house.

Accused no.1 then arranged separate accommodation on rent

where he, Smita and the child stayed for about 4 months.

Accused no.1 however, started asking Smita to get rent from PW

4. The marriage of his other daughter was performed at Pune

and though all accused persons attended, accused no. 1 did not

attend that marriage. In the marriage, sisters of accused no. 1

scolded Smita for wearing costly saree though her husband

was admitted in the hospital. He then reached Smita at her

matrimonial house at Malshiras and then accused persons

started asking Smita to bring Rs. 6 lacs for purchasing a flat. PW

4 expressed his inability. Accused persons therefore, accelerated

the illtreatment and torture. In FIR this demand is of Rs. 5 lacs

for purchasing a plot.

39. On 24/5/2010 he was present at home when on telephone

he was informed that Smita had hanged herself by neck. Hence,

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with wife and relatives, he came to Malshiras. Only accused no. 2

was present at the house and she informed that Smita was taken

to Government Hospital. They went to Malshiras Police Station

and found that accused nos. 1 and 3 were already present there

and the body of Smita was sent for post mortem. They got the

body at about 8.30 in the evening and brought it to Pune where

the last rites were performed. They saw two abrasions on the

neck of Smita and funeral was not attended to by her inlaws.

After 3 days, he went to Malshiras police station and lodged the

FIR. In paragraph 4 of his deposition, he has stated that the

accused persons used to insist upon the accused no. 1 to

perform second marriage.

40. His cross examination shows that he cannot disclose the

exact date on which the amount of Rs.25,000/- was withdrawn

by him from the bank account. He stated that the amount was

withdrawn from Cosmos Bank at Pune eight months after the

marriage and Vivek got employment on 13/08/2005. He was on

temporary basis at the time of marriage. He denied that he did

not pay Rs.25,000/- to accused no. 3. He denied that the gold

ornaments were sold for securing the employment. He accepted

the suggestion that the accused no. 4 to 10 were present at

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Malshiras at the time of incident. He accepted that Smita was

suffering from psoriasis and in that disease there is burning

sensation and some times bleeding. Smita was experiencing the

bodily pain. He denied that Smita was therefore, displeased with

her life. He accepted that accused no. 9 Madhuri had Children

Home at Pune and his daughter Smita was working in it at Pune.

Therefore, she was acquainted with Madhuri who took initiative

in settling the marriage. Smita and Vivek both were SSC. He

accepted that accused no. 5 was an Engineering graduate. He

also accepted that the other accused persons were rich and

placed happily in their lives. He accepted that accused no.3 had

constructed his bungalow at Malshiras with an intent to

accommodate the families of his two sons in a posh locality at

Malshiras. He accepted that Smita was good looking and of good

nature and therefore, accused persons agreed for marriage.

41. In paragraph 13 of his cross examination, certain omissions

are brought on record. He could not explain why the fact of

withdrawal of Rs.25,000/- from Cosmos Bank did not find mention

in his FIR or then why the fact that Smita was being treated and

after being cured, was reached at her matrimonial house did not

appear there. Similarly accused nos. 2 and 8 cursing Smita for

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not cooking the food properly, for her frequent illness, sending of

Smita to home by accused no. 1 after getting disgusted did not

appear in his FIR. He accepted that he did not tell the police that

accused nos. 2 to 10 used to pressurize accused no.1 for giving

divorce. He added that he disclosed to police that on refusal by

Smita to give divorce, rest of the accused persons staged walk

out from his house. He could not explain why this fact did not

appear in his FIR. He also could not explain why the fact that

accused no.1 pressurized Smita to shift to his parent’s bungalow

or accused no.1 asking Smita to bring the rent amount or other

wise asking Smita to reside alone, did not figure in his FIR. He

also could not explain why the fact that all sisters of accused

no.1 used to come to Malshiras in Summer vacation and used to

curse Smita for not performing household work properly or

accused asking why she had worn costly saree when her

husband was admitted in hospital or then all accused persons

asking Smita to bring amount of Rs. 6 lacs from her parents to

purchase a flat or then accelerating the ill-treatment, were not

mentioned in the FIR.

44. In Paragraph 16 of his cross examination he accepted that

on 24/5/2010, he had disclosed the names of accused persons to

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police. He also disclosed the name of his wife, his wife’s sister,

her husband, his two daughters, their husbands etc. to police.

He accepted that he told police to find out who should be made

accused and which person should be made witnesses and signed

on a blank paper and left for Pune. However, in the next

breath, he added that he did not sign on a blank paper.

45. The FIR Exh. 51 shows that in the FIR, it is mentioned that

after one year of marriage, an amount of Rs. 5 lacs was

demanded for purchasing a plot and she was made to starve and

beaten.

46. Mother of Smita has been explained as PW 6. Her evidence

is almost on the same lines as that of her husband. She however,

states that at the time of settlement of marriage, it was agreed

to give 5 tolas of gold ornaments to accused no. 1 Vivek along

with expenditure of ‘to and fro’ journey for the guests of

accused. She states that accordingly the marriage was

performed. She has deposed that Vivek had asked Smita to bring

Rs. 5 lacs to purchase a flat and as she could not pay, accused

Vivek along with Smita started residing with joint family in his

parent’s house. Smita thereafter did not make any phone call for

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the period of 1.1/2 years.

47. The prosecution has also examined neighbour by name

Raziya Salim Shaikh as PW 5. She was declared hostile. Initially

in her chief, she has deposed that she was not on talking terms

with Smita and there were no contacts with accused persons.

She did not hear accused persons subjecting Smita to any

illtreatment or torture for dowry or on any other count. In the

cross examination by learned APP, she has submitted that her

statement was not recorded by police during the investigation.

Portion marked “A” and “B” in her statement were read out to her

and she deposed that the same were not correct. It appears that

these portions “A” and “B’ appear in the statement given by a

lady whose name is recorded as Taslim Salim Shaikh. Counsel for

the accused persons in the cross examination has brought on

record fact that Taslim is not the name of PW 5.

48. The evidence discussed supra, therefore, does not show

that any amount was demanded as dowry and PW 6 mother has

stated that the terms and conditions of marriage as agreed to

were acted upon. The developments thereafter show that at the

most for some employment, the parents might have paid the

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amount of Rs.25,000/- but then it also becomes doubtful because

PW 4 at one stage claims that accused no. 1 was jobless and

little later, states that he was in temporary employment. The

illtreatment to Smita is also not brought on record specifically

with reference to any particular incident. The alleged walk out

from the house of the parents by accused nos. 2 to 10 is not

substantiated. The omissions in this respect are already noted

by us supra. The very fact that PW 4 claims that he gave names

of all accused persons and also names of his relatives and left it

to police to draft a complaint creates serious doubt. He has

accepted initially that he signed on a blank paper and gave it to

the police. However, in the next breath, he has withdrawn from

that statement.

49. The material on record therefore, does not meet the

ingredients of section 498-A IPC or then of section 3 and 4 of

Dowry Prohibition Act. The conviction of accused persons under

section 498-A read with section 34 IPC or under sections 3 and 4

of Dowry Prohibition Act is not proper by bringing on record the

cogent and consistent evidence. The fact that the trial court itself

has acquitted accused nos. 4 to 10 of all these offences speaks

for itself. We find that accused no. 2 (mother) is also entitled to

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similar relief.

50. The prosecution has also relied upon the recovery of

ornaments of Smita under section 27 of the Evidence Act. They

have examined PW 1 Lata Patil for this purpose. Her cross

examination shows that while preparing the inquest panchanama

of body, police removed the golden rings and golden

‘mangalsutra’ from the person of Smita and handed it over to

the relatives of the deceased. She has also stated that she found

cracks of psoriasis on right palm of the body. She has also stated

that in examination in chief, she has referred to those cracks as

bruise injuries.

51. In any case, husband producing the ornaments of his

deceased wife, cannot by itself be seen as an incriminating

circumstance.

52. The incident has taken place in the house of accused no. 1.

He claims that the family was sleeping on open terrace and in

the morning hours when his mother came down into the house

for the exercise from terrace, Smita was seen hanging. She was

taken down and rushed to hospital.

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53. The evidence of PW 7 mentioned supra does not support

death by hanging. Fracture of hyoid bone and injury nos.2 and 3

mentioned supra clearly show the cause of death as throttling. In

the light of this material and the provisions of section 106 of

Evidence Act, the burden was heavy upon the accused no.1 to

explain the situation. Except for saree hanging from the hook

from ceiling, he has not brought on record anything. He did not

point out to Investigating Officer the chair or table used by the

deceased to climb up and tie a knot to the hook or around her

neck so that her legs would not reach the floor. He has not also

pointed out how the body if hanging at some height from the

floor, was taken down by untying the knots.

54. Learned counsel for the appellant accused has relied upon

the judgment of Apex Court in the case of Vipin Jaiswal Vs. State

of A.P. (supra) to point out how the word “dowry” needs to be

construed. In the light of the discussion supra, we find that the

prosecution in the present case has failed to demonstrate the

demand of dowry or its payment.

55. The judgment of Apex Court in the case of State of U.P. Vs.

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Dr. Ravindra Prakash Mittal (supra) has been pressed into service

to show that as observed there in paragraph 21, the conviction

on circumstantial evidence must be on the basis of evidence

which prove such circumstances conclusively and the facts

established should be consistent only with the hypothesis of guilt

and inconsistent with innocence. The circumstances should, to a

moral certainty, exclude the possibility of guilt of any person

other than the accused. In the facts before us, the prosecution

as also the accused persons have not pointed out the possibility

of involvement of any other person. On the contrary defence of

accused no.1 Vivek is of suicide by his wife.

56. Learned APP has relied upon the judgment of the Apex

Court in the case of Mulakh Raj and Others Vs. Satish Kumar and

Others (supra) to submit how the injuries brought on record by

PW 7 doctor negate the hanging and support throttling. We have

perused paragraph 7, 9, 12 in the said judgment. We have

already noted that the injury nos. 2 and 3 are placed on either

side of windpipe of deceased.

57. Learned APP has also invited our attention to the judgment

of Apex Court in the case of Trimukh Maroti Kirkan Vs. State of

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Maharashtra (supra). There defence was of snake bite while the

prosecution claimed the death due to asphyxia as a result of

compression of neck. There were no eye witnesses. In paragraph

13 Hon’ble Apex Court has pointed out the phenomenal increase

in the dowry cases and has also stated that 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 member.

It is therefore, extremely difficult for the prosecution to establish

the guilt of accused if strict compliance of circumstantial

evidence is insisted upon by the Courts. Hon’ble Apex Court has

pointed out that the Judge has also to see that a guilty man does

go unpunished. The law does not expect the prosecution to lead

evidence of such a character which is almost impossible to be led

or at any rate extremely difficult to be led. Hon’ble Apex Court

has observed that the duty of the prosecution in such matters is

to bring on record such evidence which it is capable of. Thus

where prosecution does not get evidence because of

impossibility to procure it, section 106 of Evidence Act comes

into play and the burden shifts to accused to explain the

situation. The inmates of the house cannot get away by

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remaining silent and offering no explanation.

58. In the present facts, we have found that accused no.1 Vivek

who claims to have taken down the body, cannot explain the

position. His narration as contained in spot panchanama Exh. 70

which shows that his mother (accused No. 2) came down for

some exercise and shouted loudly. Hence all of them came

down and found Smita hanging. He also accepts that four of

them brought her down and immediately took her to Government

Hospital.

59. In the light of this discussion, we find that the prosecution

has established the homicidal death of his wife Smita by accused

no. 1 Vivek.

60. Though we acquit accused no. 1 of the offence punishable

under section 3 and 4 of the Dowry Prohibition Act or under

section 498-A of IPC, we uphold his conviction under section 302

IPC by the trial court. His sentence as inflicted by trial court on

that count is also maintained.

61. In the result, we pass the following order :

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(a) Criminal Appeal No. 271 of 2012 is allowed and the

appellant therein is acquitted of the offences punishable under

section 498-A, 304-B read with S. 34 IPC and section 3 and 4 of

Dowry Prohibition Act.

(b) Applicant in Criminal Appeal No. 271 of 2012 is already on

bail. Hence, her bail bonds or sureties furnished by her are

discharged and cancelled.

(c) Criminal Appeal No. 270 of 2012 is partly allowed. The

conviction of appellant Vivek under section 498-A IPC read with

34 thereof and under section 3 and 4 of Dowry Prohibition Act is

quashed and set aside.

(d) His conviction and sentence for the offence under section

302 IPC is maintained.

(e) The direction to pay compensation to complainant under

section 357(c) Cr.P.C. is also maintained.

(f) Muddemal property be dealt with as directed by trial court

after the appeal period is over.

(MRS.SWAPNA JOSHI, J.) (B.P. DHARMADHIKARI, J.)

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