PW-17 Dr. Deshmukh disclosed one thing very prominently
and i.e. that he has not given any reason as to why the
ligature mark around the neck of deceased Jayashree was a
postmortem injury. A medical expert or any expert has to be
treated like an ordinary witness. The evidence of an expert
has to be appreciated like that of an ordinary witness. Any
findings arrived at by the expert have to be supported by
reasons.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 234 OF 2008
Sandeep Nimba Wagh
Vs.
The State of Maharashtra
CORAM: P. V. HARDAS &
P. N. DESHMUKH, JJ.
NOVEMBER 22, 2013.
Citation;2014 CRLJ (NOC)320 Bom
The Appellants/Original Accused No.1 Sandeep stands
convicted for an offence punishable under Section 302 of the
Indian Penal Code, 498 r/w. 34 of the Indian Penal Code and
201 r/w. 34 of the Indian Penal Code and sentenced to
imprisonment for life and to pay fine of Rs.10,000/-, R.I. for
two years and to pay fine of Rs.10,000/- in default of which to
undergo S.I. for six months, R.I. for two years and to pay fine
of Rs.10,000/- in default of which to undergo S.I. for three
months, Accused No.2 Leelabai stands convicted for an
offence punishable under Section 201 of the Indian Penal
Code and sentenced to R.I. for one year and to pay fine of
Rs.5,000/-, in default to undergo S.I. for three months while
Accused
No.4
Nimba
stands
convicted
for
an
offence
punishable under Section 498-A and 201 r/w. 34 of the Indian
Penal Code and sentenced to R.I. for two years and to pay fine
of Rs.10,000/- in default of which to undergo S.I. for six
months and R.I. for two years and to pay fine of Rs.10,000/- in
default of which to undergo S.I. for three months, with a
direction that the substantive sentences shall run concurrently
by the Additional Sessions Judge - 2, Nasik, by Judgment dated
24.12.2007 in Sessions Case No.151 of 2005, by these
Appeals question the correctness of their conviction and
Facts in brief as are necessary for the decision of these
2.
sentence.
Appeals may briefly be stated thus :-
PW-21 ASI Sahebrao Satale, who on 2.6.2003 was
attached to the Chhavani Police Station, Malegaon received
information on telephone at about 11.00 a.m. that deceased
Jayashree had committed suicide. Accordingly, an entry in the
station diary was taken at Sr. No.23 and which is at Exhibit
100. On the same day at about 12.30 p.m., PW-10 Bhaskar,
father of deceased Jayashree came to the Police Station and
lodged his report which was reduced into writing at Exhibit 57.
On the basis of the said report, an offence vide Crime No.105
of 2003 was registered.
PW-20 API Dattatraya Pawar, who on 2.6.2003 was also
attached to the Malegaon Police Station was entrusted with
the investigation, an accidental death which was registered
regarding the death of Jayashree. He accordingly proceeded
to the scene of the incident and on reaching the scene of the
incident, he noticed the dead body of deceased Jayashree. A
Photographer was called and photographs were taken.
Thereafter, inquest panchnama of the dead body of deceased
Jayashree was drawn at Exhibit 51.
The dead body was
thereafter referred for postmortem examination and the dead
body
was
to
the
Wadia
Thereafter,
postmortem.
sent
panchnama was drawn.
the
Hospital
scene
of
for
conducting
the
incident
One saree was found on the bed
which was tied to the ceiling fan above the bed. One latch of
the door was also found on the floor which was seized under
seizure memorandum at Exhibit 37. The clothes of deceased
were seized under seizure memorandum at Exhibit 32. The
room in which the dead body of deceased Jayashree was
found was sealed and a fingerprint expert was called.
The
fingerprint expert visited the scene of the incident on the next
day and a panchnama of the chance print was drawn at
Exhibit 42. Further investigation of the Crime was entrusted
to PW-22 PI Chandrakant Thorat.
PW-22 PI Chandrakant Thorat, who was also attached to
the Chhavani Police Station, Malegaon was entrusted with the
investigation of Crime No.105 of 2003.
On receipt of the
Postmortem report, Section 302 of the Indian Penal Code
came to be added. Statements of witnesses were recorded.
Accused Sandeep, Leelabai and Suvarna were arrested under
arrest panchnama at Exhibit 35. On 3.6.2003, Accused Nimba
came to be arrested under arrest panchnama at Exhibit 33.
On
3.6.2003,
the
Accused
were
referred
examination under requisition at Exhibit 104.
for
medical
Specimen
finger impressions of Accused Sandeep, Leelabai, Nimba and
Suvarna were obtained under Exhibits 90, 90/4 to 90/7.
Supplementary statements of witnesses were recorded on
6.6.2003. The viscera was referred to the Chemical Analyzer
under requisition at Exhibit 105.
On 5.6.2003, Accused
Chandrakant was arrested and was referred for medical
examination.
During
custodial
interrogation,
Accused
Sandeep
expressed his willingness to point out the place where a rope
had been concealed. Accordingly, a memorandum was drawn
in the presence of panchas at Exhibit 45. The Accused led the
Police and the Panch near a culvert and produced a nylon
rope which was seized in the presence of panchas.
The
specimen fingerprint impressions of the Accused were sent to
The
the fingerprint expert under requisition at Exhibit 106.
seized property was referred to the Chemical Analyzer under
Further to the completion of
requisition at Exhibit 107.
investigation, a charge-sheet against the Accused was filed.
The Postmortem on the dead body of deceased Jayshree
was conducted by PW-17, Dr. Mohamad Deshmukh. PW-17 Dr.
Deshmukh noticed the following external injuries :-
i) On right elbow abrasion of size 1 x 1⁄2 cm.
ii) On left hand at index finger CLW i.e. contused
lacerated wound of size 2x1/2x1/4 cm.
iii)
On left arm middle third bruise of size 5 x 3
cm. which is blackish / bluish in colour.
On index finger, imprint abrasion of size 3 x
1⁄2 cm over middle phallings of left finger as well
abrasion of size 1⁄2 x 1⁄4 cm.
as on little finger of left hand, there is also
He opined that the injuries were caused by hard object
as well as nails and were simple in nature and fresh.
ig
According to him, these injuries were signs of struggle.
On the left scapular region, he noticed a size 8 x 5 cm
This injury, according to him, was
blackish discoloration.
caused by hard and blunt object and was simple in nature and
was more than 24 hours duration.
He also noticed a
contusion over sub-mental region of size 3 x 5 cm. reddish,
blackish discoloration by hard and blunt object.
The said
injury was dangerous to life and the duration of the injury was
within 24 hours. He also noticed ligature mark over the neck
on the cervical region 16 x 1 & 1⁄2 cm of blackish discoloration
which according to Dr. Deshmukh was postmortem in nature.
On dissection of the injury, he noticed ecchyomoysis on neck
muscles as well as fracture of hyoid both alae.
On
examination of the spine and spinal cords, he noticed
dislocation in between C-2 and C-3 with fracture of transverse
process of C-3 i.e. cervical vertebra No.3.
He, therefore, opined that deceased Jayshree had died a
violent
asphyxial
death
due
to
throttling
i.e.
manual
On committal of the case to the Court of Sessions, Trial
ig
3.
strangulation. The postmortem note is at Exhibit 78.
Court, vide Exhibit 7 framed charge against the Accused for
offence punishable under Sections 498-A r/w. 34, 302 r/w. 34,
304-B r/w. 34, 201 r/w. 34 of the Indian Penal Code.
denied
their
guilt
and
claimed
to
be
tried.
Accused
The
Prosecution in support of its case examined 22 witnesses
while the Accused in their defence examined 4 witnesses.
The Trial Court, upon appreciation of the evidence of the
prosecution, convicted and sentenced the Appellants as afore-
stated while acquitting the other Accused.
4.
In order to effectively deal with the submissions
advanced before us by Shri Sachindra Shetye, the learned
Counsel for the Appellants and the learned APP, it would be
PW-8
Umesh
Maheshwari,
owner
of
“Abhishek
5.
useful to refer to the evidence of the prosecution witnesses.
Opticians”, deposes that he knows all the Accused whose
house is situated adjacent to his shop.
deposes that on
Umesh further
2.6.2003, he was present in his shop at
At that time, Accused No.4,
about 10.00 a.m. to 10.15 a.m.
father of Accused No.1 came to his shop to call him. PW-8
Umesh reached the house of the Accused and accordingly, he
as to what had happened.
enquired from Accused No.4
Accused No.4 informed Umesh that his daughter-in-law had
This witness at this stage was declared
done something.
hostile.
examine
The Public Prosecutor sought permission to cross-
the
witness.
Umesh
further states that the
Accused had informed him that his daughter-in-law locked
her in bed room from inside. Umesh, accompanied by wife of
Accused No. 4 went upstairs. He pushed the door of the room
but it was locked from inside. He sought permission from the
wife
of
Accused
No. 4 for breaking
open
the
door.
Thereafter, he pushed the door due to which the latch
was broken and the door was opened. Umesh states that
they entered the room and at that time noticed deceased
Mother of
Jayashree hanging by the saree from the fan.
Accused No.1 lifted her and Umesh thereafter, loosened the
knot around the neck and placed her on the bed. Mother of
Accused No.1 informed Umesh that Jayashree may be alive
and therefore, Umesh came on the ground floor for bringing
the Medical Officer. Accused No.4 requested PW-8 Umesh to
inform the Police Station. Umesh therefore went and called
6.
PW-16 Dr. Rajesh Sawant.
In cross-examination Umesh had admitted that Accused
No.4 Nimba is an Ayurvedic Practitioner and he and his wife
may be aged about 50 to 60 years.
Umesh has further
admitted that he had found Accused No.4 and his wife
present in the house and till he had called PW-16 Dr. Sawant.
He had not noticed the other inmates of the house.
PW-8
Umesh, in no uncertain terms has admitted that when he had
reached the room of Jayashree, he had found the door to be
locked from inside.
PW-8 Umesh has admitted that he had
informed PW-16 Dr. Sawant that he had found Jayashree
hanging from the ceiling fan. He has also admitted as correct
that at that time one PW-7 Vinod Chavan was also present
7.
inside the room with PW-16 Dr. Sawant.
Prosecution has examined PW-7 Vinod Chavan, who
deposes that he knows PW-8 Umesh @ Bandu.
He further
deposes that on 2.6.2003, he was present at his house and at
He also deposes that he knows the Accused.
booth.
about 10.00 to 10.15 a.m. was proceeding towards his STD
According to Vinod, he met PW-8 Umesh while Vinod was
Umesh informed him that
proceeding to the STD booth.
Jayashree, daughter-in-law of Accused No.4, had committed
suicide by hanging. PW-7 Vinod, therefore, went to the house
of the Accused and noticed Jayashree lying on the bed.
Accused No.8 Umesh had gone for calling the Medical Officer
Dr. Sawant.
The Medical Officer examined Jayashree and
declared that Jayashree was dead.
Vinod accordingly
informed this fact on telephone to the Police.
He further
states that on arrival of Police, the inquest panchnama of
Jayashree was drawn. This witness was declared hostile and
was cross-examined by the prosecution. However, apart from
obtaining an admission about the ligature mark, nothing of
substance has been elicited in the cross-examination on
8.
behalf of the prosecution.
In the cross-examination on behalf of the Accused, Vinod
has admitted that the Medical Officer had given some
injection to Jayashree and had also done manual pumping of
The Medical Officer had also declared that
Vinod had also admitted that
Jayashree had recently died.
her chest.
father of Jayashree had telephoned and had stated that
Jayashree had done what she wanted to do and therefore, the
person who was called should start immediately.
In re-
examination, the aforesaid fact as well as the fact that saliva
was dribbling from the mouth of Jayashree have been elicited
as omission on behalf of the prosecution.
9.
Prosecution
has
examined
PW-16
Dr.
Rajesh
Sawant, who deposes that on the day of the incident when he
was present in the Hospital, PW-8 Umesh @ Bandu had
informed him that daughter-in-law of Accused No.4 had
committed
suicide
by
hanging.
PW-16
Dr.
Sawant,
accordingly, rushed the residence of Accused No.4 and went
They had noticed the dead
body of a female lying on the bed. Dr. Sawant deposes that
he checked the pulse as well as the beating of the heart with
the stethoscope and then opined that she was dead.
Dr.
Sawant further deposes that he had instructed that the Police
should be informed.
In cross-examination on behalf of the
Accused PW-16 Dr. Sawant was confronted with portion
marked 'A' from his statement that apart from the family
members, the other residents of the locality were also
present. He was then confronted with portion marked 'B' from
his statement that he had enquired from PW-8 Umesh as to
who had taken down the dead body of Jayashree which was
hanging from the fan. He has admitted as correct that PW-8
Umesh had informed him that the door of the room was
latched from inside and he had pushed the door in order to
open the door and on entering the room, Umesh had noticed
Jayashree hanging from the fan.
He has also admitted that
PW-8 Umesh had informed him that Umesh and Leelabai had
taken down Jayashree, who was hanging from the fan.
From the evidence of these witnesses, one thing
emerges very prominently and i.e. that dead body of
deceased Jayashree was hanging from the fan and the door of
the room was latched from inside. In fact, PW-8 Umesh had to
break the latch in order to gain entry in the room.
The scene
of the offence panchnama as well as the evidence of the
Police Officer indicates that a broken latch was found on the
panchnama.
floor which was seized under the scene of the incident
In the entire evidence of the prosecution, this
fact has not been explained by the prosecution as to whether
any exit was available from the room for going outside, apart
from the door, to a person who had latched the door from
inside.
So undisputedly therefore, the evidence of the
prosecution itself disclosed that the door was latched from
inside and the latch had to be broken in order to gain entry
inside the room.
11.
Prosecution has examined PW-10 Bhaskar, father of
deceased Jayashree, who deposes that Jayashree was married
to Accused No.1, son of Accused No.4 on 3.5.2002 at
Malegaon.
Bhaskar further deposes that at the settlement of
marriage, Accused No.4 had declared that they did not want
any dowry in the marriage and that Bhaskar should purchase
the clothes of Jayashree while Accused No.4 would purchase
the clothes of Accused No.1. After about 2 to 3 days, Accused
No.4 had demanded dowry of Rs.1,65,000/- and it was further
decided that the expenses of the marriage would be borne by
PW-10 Bhaskar. Bhaskar claims that he had paid the dowry
amount of Rs.1,65,000/- as per the demand of Accused No.4.
On 3.3.2002, the engagement ceremony was held at Ozar.
After the marriage, Jayashree went to reside in the house of
was treated well.
the Accused. Initially, for a period of two months, Jayashree
At the time of marriage, Accused No.1
Sandeep was employed as a Medical Officer in the Srushti
Foundation Trust at Dahiwal and was drawing salary of
Rs.3,000/- per month. Accused No.1 wanted to set up his own
dispensary at Malegaon and therefore, all the Accused were
demanding Rs.2.00 lacs from Bhaskar through Jayashree.
According to Bhaskar, Jayashree had informed him that the
Accused were demanding Rs.2.00 lacs for setting up a
dispensary for Accused No.1 Sandeep and on that score ill
treating her mentally.
Jayashree had also disclosed that
Accused No.1 Sandeep used to assault her. Bhaskar further
states that on 10.5.2003, Jayashree had come to his house for
At that time
attending the marriage of her cousin at Ozar.
Jayashree had disclosed to him and her mother that if the
amount of Rs.2.00 lacs was not paid, the Accused would do
something “untoward” with her life.
Bhasker had informed
Jayashree that he was not in a financial position to give that
On 20.5.2003, Bhaskar received a
her house by Bhaskar.
much amount. After marriage, Jayashree was taken back to
telephone call from one Vasant Jadhav, who informed Bhaskar
that Jayashree had informed Vasant Jadhav on telephone that
the Accused were ill treating her because of demand of
Rs.2,00 lacs.
12.
In respect of the incident, PW-10 Bhaskar deposes that
he was on duty at about 8.00 a.m. and had received a
telephone call from Nana Malhari Bachhav asking Bhaskar to
reach the residence of Jayashree at Malegaon immediately,
Accordingly, Bhaskar left for Malegaon and reached the house
of Jayashree at about 11.30 a.m. He noticed a crowd in front
of her house and on enquiry learnt that Jayashree had
committed suicide by hanging. He therefore went to the bed
room of Jayashree and noticed Jayashree lying on the bed and
the Police were drawing the panchnama. From the house of
Jayashree, he went to the Chhavani Police Station and lodged
his report at Exhibit 57. The dead body of Jayashree was then
sent for postmortem examination and after postmortem he
learnt that Jayashree had been killed. Bhaskar claims to have
accordingly informed the Police that the Accused had killed
had committed suicide.
his daughter Jayashree and had made a show that Jayashree
13.
In cross-examination on behalf of the Accused, the
following omissions have been elicited :-
(a)
That Bhaskar had not stated in his report that
Accused No.4 had asked him to give dowry of
Rs.1,65,000/- after about 2 to 3 days of the settlement
of marriage.
Bhaskar has admitted that even on the
next day he had not stated about it and has agreed that
he was deposing about it for the first time;
Bhaskar had not stated in his report that it was
decided that the marriage expensed would be born by
Bhaskar. Bhaskar admits that he was deposing about
this for the first time;
( c)
Bhaskar admits that he was deposing for the first
time in Court that Accused No.1 was drawing a monthly
salary of Rs.3,000/- while working in Srushti Foundation
(d)
Trust;
Bhaskar had not stated about Vasant Jadhav
informing him on telephone that Jayashree had informed
Vasant Jadhav that she was being ill treated because of
demand of Rs.2,00 lacs; and
14.
(e)
Bhaskar had not stated that Jayashree used to
maintain a diary and that the Accused may have
destroyed the diary.
Bhaskar
has
also
admitted
in
the
cross-
examination that on 2.6.2003, his wife had also received a
telephone call from Nana Bachhav asking wife of Bhaskar to
Bhaskar has admitted that Nana Malhari
reach Malegaon.
Bachhav was the mediator who had settled the marriage
between Jayashree and Accused No.1 Sandeep. Bhaskar has
admitted that initially, when Jayashree complained about ill
treatment and demand of Rs.2.00 lacs, he had not informed
15.
the fact to Nana Malhari Bachhav.
Prosecution has examined PW-9 Shivnath, uncle of
deceased Jayashree, who also deposes about demand for
dowry of Rs.1,65,000/- after the settlement of marriage and
about the fact that the marriage expenses should be borne by
PW-10 Bhaskar.
He then states that an amount of Rs.1.25
lacs was paid on 23.3.2002 while the remaining Rs.40,000/-
He further deposes that Jayashree
was paid on 15.4.2002.
had also informed him that her in-laws were demanding
Rs.2.00 lacs for setting up a dispensary for Accused No.1
Sandeep and for failure to pay the said amount of dowry,
Jayashree was being “ill treated mentally and physically”. He
further deposes that at the time of the first Diwali, Accused
No.4 had informed him on telephone about a quarrel between
Jayashree and Accused No.1 and that PW-9 Shivnath, should
He further states that
take Jayashree at his residence.
Surekha, his wife and Hirabai, wife of his elder brother
brought Jayashree at his residence and thereafter, Jayashree
had disclosed that she was assaulted by Accused No.1
Sandeep in relation to the demand for Rs.2.00 lacs. Shivnath
He states that he had informed PW-10 Bhaskar
Jayashree.
states that he had noticed weal marks on the back of
about this fact. He further deposes that on 1.6.2003, he had
received a telephone call from Jayashree at about 11.30 a.m.
and Jayashree had informed him that Accused No.1 Sandeep
had assaulted her and was ill treating her and that the
Accused would do anything with her life. He further deposes
that on 2.6.2003, he had received a message that Jayashree
had expired and therefore, had gone to the house of Jayshree.
16.
In cross-examination, he has admitted as correct
that the Police had recorded his first statement on 3 rd June
and thereafter, his supplementary statement on 14 th July. An
omission has been duly proved that he had not stated in his
previous statement dated 3.6.2003 that Jayashree was
attached to his family. An omission has also been duly proved
that he had not stated that Accused No.4 had demanded
be born by PW-10 Bhaskar.
dowry of Rs.1,65,000/- and that the marriage expenses would
Omission has also been duly
proved that he had not stated in his previous statement that
an amount of Rs.1,25,000/- was given on 23 rd March and the
remaining amount of Rs.40,000/- was given on 15 th April.
Omission has been duly proved that he had not been stated
about the incident dated 15th October 2003 in his previous
In further cross-examination he
statement dated 3.6.2003.
has admitted as correct that Nana Malhari Bachhav had
proposed Accused No.1 as a bride groom for Jayashree. He
has admitted that he had two telephone connections at his
residence and one telephone at his hotel.
He has also
admitted that Jayashree used to visit his house accompanied
by her mother-in-law or the wife of her brother-in-law or some
times by her husband. He has admitted that he has used to
reciprocate those visit accompanied by his wife or his brother
or his sister-in-law. He has further admitted as correct that
after about 5 to 7 months of the marriage, Jayashree had
visited his residence and at that time he had called Nana
Malhari Bachhav to his house.
He has further admitted as
An omission has also been duly
and had sent her back.
correct that on that occasion they had convinced Jayashree
proved that he had not stated to have received a telephone
call from Jayashree on 1.6.2003.
He claims that he had
informed about the receipt of the telephone call to PW-10
17.
Bhaskar.
Prosecution has examined PW-13 Surekha and states
that about 15 days prior to the first Diwali of Jayashree, she
had received a telephone call from her father-in-law asking
Surekha to come to his house. She states that on the same
night she had gone to the house of Jayashree and at that time
had noticed the presence of all the accused in the house. She
further deposes that there was a quarrel between them and
at that time Jayashree had informed her that they were ill
treating her and beating her. Accused No.4, father-in-law of
Jayashree, informed Surekha to take Jayashree alongwith her
and that she should be sent back only with the amount of
Rs.2.00 lacs. Surekha states that there were weal marks on
the back of Jayashree.
She further states that on the next
day, Jayashree's brother had come and Jayashree was sent
Surekha further
with him to the house of PW-10 Bhaskar.
deposes about receiving a call on 1.6.2003 at about 11.00
a.m. from Jayashree, who informed her that Jayashree was
being harassed by the Accused.
Surekha states that
thereafter, she left for Mumbai and on 2.6.2003, learnt about
the demise of Jayashree. In cross-examination Surekha has
clearly stated that the telephone call from Accused No.4 was
received by her and not by her husband PW-9 Shivnath. She
has also admitted as correct that on 15 th October Nana
Bachhav was called for discussion in respect of Jayashree.
She further admits that on 1.6.2003, when she had received
the telephone call from Jayashree, her husband i.e. PW-9
Shivnath was not present in the house.
The evidence of PW-9 Shivnath and the evidence of his
wife PW-13 Surekha is completely contradictory. Shivnath has
maintained that all along he had received the telephone call
from Accused No.4 Nimba as well as Jayashree while Surekha
claims to have received those phone calls.
PW-9 Shivnath
and PW-13 Surekha speak about noticing the weal marks on
the back of Jayashree in respect of the incident dated 15 th
October. However, this is not deposed too by PW-10 Bhaskar
at all. Both these witnesses claim that they had informed to
PW-10 Bhaskar yet PW-10 Bhaskar does not refer to that.
18.
Prosecution has also examined PW-6 Vasant Jadhav, who
also deposes about demand for Rs.1,65,000/- and the
ig
subsequent demand of Rs.2.00 lacs and also refers to
Jayashree complaining of ill treatment at the hands of the
In cross-examination he has admitted that a
Accused.
statement was recorded on 8th June. An omission has been
duly proved that he had not stated about the demand for
Rs.2.00 lacs as dowry. He admits that he was not present at
the time of settlement of the marriage.
He states that he
had learnt about all these things from his wife when she had
returned after attending the engagement ceremony of
Jayashree. From the cross-examination it appears that he has
no personal knowledge and he could not even state that if
Jayashree had a telephone connection at her residence or
from which place she had talked.
It appears that the
evidence of this witness is of no assistance to the prosecution.
Mr. Shetye, learned Counsel for the Appellants has
19.
urged before us that the evidence in respect of the ill
treatment and the demand for dowry is extremely flimsy and
the evidence of all the witnesses is replete with omissions on
vital aspects with regard to the demand of dowry and as such,
no reliance can be placed on such evidence. The learned APP
The evidence of the prosecution witnesses with
20.
has supported the findings arrived at by the Trial Court.
regard to the demand for dowry of Rs.1,65,000/- at the time
after the settlement of the marriage has been consistently
elicited as omission in the evidence of the witnesses. There is
absolutely no satisfactory evidence in respect of the alleged
demand for Rs.2.00 lacs for setting up a dispensary for
Accused No.1 Sandeep. Vague allegations are made that the
Accused used to “ill treat” and “harass” the deceased for
failure to pay the amount of dowry. Some of the witnesses
have vaguely alleged that Jayashree was mentally and
physically ill treated. According to these witnesses, Accused
No.1 used to assault her.
As pointed out by us above, in
respect of the alleged incidence of physical violence though
The
Surekha, no reference is made by PW-10 Bhaskar.
weal marks were noticed by PW-9 Shivnath and his wife
evidence of these witnesses in respect of ill treatment/cruelty
is extremely vague and omnibus.
The witnesses contradict
themselves and we find that there is no reliable evidence
which would inspire the confidence of the Court in recording
the findings that the Accused had demanded the dowry and
for failure to pay the said amount, deceased Jayashree was
treated with cruelty by the Accused. The necessary details
are wanting in the evidence of the witnesses and the
evidence on record does not inspire the confidence of the
Court for accepting such evidence.
Prosecution has examined PW-17 Dr. Deshmukh, who
21.
had performed the postmortem on the dead body of
Jayashree.
According to him, the ligature mark was a
postmortem injury while the other injuries were antimortem
injuries.
In cross-examination on behalf of the Accused, he
has admitted as correct that when he had informed the Police
that he could not give opinion as to the time between death
and the postmortem, he was possessing the postmortem
According to him, he had opined about the time of
notes.
lividity.
death only on the basis of rigor-mortise and postmortem
He claims that he had received the dead body at
4.00 p.m. alongwith the inquest panchnama.
He has
admitted that he could not state as to in whose custody the
He has further
dead body between 1.45 p.m to 4.00 p.m.
ig
admitted as correct that it may be possible that the deceased
might have emptied her stomach and she might have gone to
answer the call of nature before her death. He was shown the
photographs in respect of the injury and he has declined to
give opinion on the basis of the photograph as to whether the
injury was a contusion.
injury below the
He then states that the injury i.e.
mental means below the chin, had no
relation of the cause of death. He was then confronted with
the passage from the Text book by Dr. Parikh that in case the
fingers were used for throttling, the thumb and finger tips i.e.
the marks of pressure are usually found on either side of wind
pipe. He states “ it is not correct to say that I did not find any
such mark in the present case “.
Curiously, he makes no
reference at all to finding such a mark.
The entire evidence as well as the cross-examination of
22.
PW-17 Dr. Deshmukh disclosed one thing very prominently
and i.e. that he has not given any reason as to why the
ligature mark around the neck of deceased Jayashree was a
postmortem injury. A medical expert or any expert has to be
treated like an ordinary witness. The evidence of an expert
has to be appreciated like that of an ordinary witness. Any
findings arrived at by the expert have to be supported by
reasons. In the present case, PW-17 Dr. Deshmukh has not
given any reasons for coming to the conclusion that the
ligature mark around the neck of Jayashree was a postmortem
injury. He has also not given any reason for coming to the
conclusion that Jayashree had died due to asphyxia due to
throttling.
contrasted
The evidence of the Medical Officer when
with
the
evidence
of
the
prosecution
that
Jayashree was found hanging from the ceiling fan in her room
and that the door of the room was latched from inside and the
latch was required to be broken for effecting entry in the
room,
completely
prosecution
belies
evidence
the
medical
completely
evidence.
falsifies
the
The
medical
evidence that Jayashree was throttled first and then a show of
hanging was made. If the medical evidence is accepted that
Jayashree was throttled and then a show of hanging was
made, the evidence of the prosecution about door being
latched from inside remains unexplained.
This part of the
evidence strongly support the case of deceased Jayashree
committing suicide. Coupled with this failure of the Medical
strengthens
the
Officer to give reasons for the findings arrived at by him
prosecution
evidence
about
Jayashree
committing suicide. We, therefore, find that no reliance can
be placed on the findings recorded by PW-17 Dr. Deshmukh
that Jayashree was throttled and had died of asphyxia due to
throttling.
Prosecution has examined PW-18 Jayant Tambe, who had
23.
noticed a chance print on the ceiling of the room where
Jayashree was found and at a place above the ceiling fan.
Since the house was occupied by the Accused and the
Accused was residing in the said room, finding of finger prints
of Accused No.1 Sandeep in the said room by itself is not an
incriminating circumstance.
Finding of fingerprints of a
stranger in the house
which did not belong to him would
certainly be an incriminating circumstance. The finding of the
aforesaid fingerprint cannot be said to be a clinching
circumstance which would complete the chain and against the
accused in the background of the fact that the door of the
In
cases
resting
on
circumstantial
evidence,
the
24.
room of Jayashree was latched from inside.
prosecution has to prove each and every circumstance on
conclusive nature.
which it proposes to rely. The said circumstances should be of
The circumstances so proved should form
a complete chain which should exclude every hypothesis of
the innocence of the accused and should unerringly point to
the guilt of the accused. In other words, the circumstances
should be capable of only one conclusion and i.e. that the
accused and the accused alone has committed the crime. A
reference at this juncture may usefully be made to the
Judgment of the Supreme Court in Hanuman Govind
Hargundkar and Anr. v/s. State of Madhya Pradesh [AIR
(1952) SC 343]. The Supreme Court has reproduced the
warning addressed by Baron Alderson to the jury in Reg. V.
Hodge, (1838) 2 Lewin 227) :
“ The mind was apt to take a pleasure in adapting
circumstances to one another, and even in straining
them a little, if need be, to force them to form parts
of one connected whole; and the more ingenious
the mind of the individual, the more likely was it,
considering
such
matters,
to
overreach
and
mislead, itself to supply some little link that is
wanting, to take for granted some fact consistent
25.
them complete.”
with its previous theories and necessary to render
Thus, from the entire evidence of the prosecution, we
find that the prosecution evidence itself disclosed that
deceased Jayashree had committed suicide. As pointed out
by us earlier, the prosecution has not been able to explain if it
was possible for the accused to have latched the door from
inside and exited from the room from any opening in the
room. It is undisputedly established that the latch of the door
was required to be broken by PW-8 Umesh in order to gain
entry inside the room and no other exit is available from the
room and consequently, this part of the evidence of the
prosecution itself completely destroys the allegations of the
prosecution
that
the
accused
had
killed
Jayashree
by
throttling her and had made a show of hanging. Coupled with
this, we find that PW-17 Dr. Deshmukh has not given any
reasons for the findings arrived at. The Accused therefore, in
our considered opinion are, entitled to be given benefit of
doubt.
Accordingly, Criminal Appeal No.234 of 2008 is allowed
and the conviction and sentence of the Appellant Sandeep
Nimba Wagh / Original Accused No.1 is hereby quashed and
set aside and he is acquitted of the offences with which he
was charged and convicted. Fine if paid by the Appellant be
refunded to him. Since the Accused is in Jail, he be released
forthwith if not required in any other case.
Criminal Appeal No.107 of 2008 is allowed and the
conviction and sentence of the Appellant No.1 Nimba Hari
Wagh / Original Accused No.4 and Appellant No.2 Smt.
Leelabai Nimba Wagh / Original Accused No.2 is hereby
quashed and set aside and they are acquitted of the offences
with which they were charged and convicted. Fine if paid by
the Appellants be refunded to them. Their bail bonds stand
cancelled.
(P.V. HARDAS, J.)
(P.N. DESHMUKH, J.)
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