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IN
THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO.344 OF 2009
Ganesh s/o Ambarsing Kahite
age 25 years, occupation:
agriculturist, r/of Feran
Jalgaon, Taluka and District .. Appellant/orig.
Aurangabad. accused No. 1.
versus
The State of Maharashtra .. Respondent.
----
Shri Joydeep Chatterji, Advocate for the appellant.
Shri K.M.Suryawanshi, A.P.P. for the Respondent-State.
----
Coram : P. R. Borkar, J.
Date : March, 09, 2010
ORAL JUDGMENT
01. This is an appeal filed by original
accused No.1 being aggrieved by the order passed
by the learned Additional Sessions Judge-2,
Aurangabad, in Sessions Case No. 154 of 2008
decided on 19.3.2009, whereby present appellant is
convicted of the offences punishable under Section
304-B and 498-A of the Indian Penal Code. For
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offence under Section 304-B of IPC, the appellant
is sentenced to suffer rigorous imprisonment for
ten years and to pay fine of Rs.5,000/= and for
offence under Section 498-A IPC, no separate
sentence is awarded. Original accused Nos. 2 and 3
are acquitted of both the offences.
02. Briefly stated, the prosecution case is
that that PW-1 Tanhabai (Exh.18), mother of
deceased Sangeeta, lodged complaint on 14.3.2008
at Police Station, Karmad, stating that Sangeeta
was one of her daughters and she was given in
marriage to present appellant. The marriage was
performed on 14.5.2006 at village Kern-Jalgaon,
Taluka and District Aurangabad. After the
marriage, for one month Sangeeta was treated well,
but thereafter on trifle matters, she was abused
and beaten by husband-appellant. It was his
complaint that in the marriage, he was paid very
meagre dowry and, therefore, Sangeeta should bring
Rs.50,000/= from her parents for purchasing a
motorcycle. The appellant also boasted that he
had killed one boy and threatened Sangeeta that if
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she did not bring rs.50,000/= from her parents, he
would kill her as he had killed the boy. Sangeeta
used to tell about the demand, ill-treatment and
threats, to her parents whenever she visited them.
However, the parents used to console her and send
her back. In June 2007, Sangeeta came to her
parents and started crying by saying that
original accused Nos. 2 and 3, who were the
sisters of appellant, used to visit the house of
appellant after frequency of 8-10 days and
instigate him to beat Sangeeta. Both accused Nos.
2 and 3 had been telling Sangeeta that if she
brought Rs.50,000/= from her parents, there would
not be trouble to her. The appellant had then
come to parents when Sangeeta was residing with
them and requested to send her back, but at the
same time he demanded Rs.3000/= which were paid to
him. Two months thereafter, elder maternal uncle
of the appellant, by name Devising Bainade
telephonically informed the parents of Sangeeta
that Sangeeta was severely beaten by her husband
and, therefore, they should take her back. The
complainant (PW-2) therefore, went to village
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Feran-Jalgaon where Sangeeta was residing and
noticed that there were weal marks on the person
of Sangeeta. The complainant, therefore, took
Sangeeta to doctor at village Shekata and treated
her. Sangeeta was taken to her parental house
where she resided for fifteen days. Sangeeta told
her mother that for non satisfaction of demand of
money, she was severely beaten by appellant. The
appellant was saying that since his maternal
uncle Laxman Bainade was working as Police at
Aurangabad, he (appellant) could get acquittal
even if he causes danger to her life. After
fifteen days from the stay of Sangeeta with her
parents, Bharat- the brother-in-law of the
appellant, came to the parents of Sangeeta and
assured that there would not be ill-treatment to
Sangeeta and therefore they should send her to the
house of her husband. Accordingly, Sangeeta was
sent to Feran-Jalgaon. On 10.3.2008 both,
Sangeeta and the appellant, had come to the temple
at Mhaismal. At that time the appellant told PW-1
Tanhabai that in the marriage, they had paid very
meagre dowry and therefore they should pay Rs.
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50,000/= to him. However, Tanhabai told that they
did not have money and after getting money, they
would pay to him. Appellant, however, said that
such an excuse had been given for two years. He
expressed his unhappiness. On 13.3.2008 Sangeeta
and the appellant had come to Faren-Jalgaon. On
that day at about 6.00 p.m., one Bajrang Charande
telephonically informed the complainant that
Sangeeta had become unconscious and asked the
complainant to come to Baba Petrol Pump at
Aurangabad. Accordingly, parents of Sangeeta with
relatives came to Aurangabad and then went to
Govt. hospital, Aurangabad, where they were told
that Sangeeta was dead. They saw the dead body of
Sangeeta and noticed that there was smell of
poison from her nostile; there were injuries to
her legs and chin.
03. After lodging above complaint, police
registered the offence and carried out further
investigation. Inquest of dead body was drawn.
The dead body was subjected to autopsy. Viscera
was sent to Chemical Analyzer. Before lodging
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complaint on 14.3.2008, on 13.3.2008 at about
9.10 a.m. A.D. was registered at Karmad Police
Station on the MLC letter received from the
Government Hospital, Aurangabad, regarding death
of Sangeeta. Police had also drawn spot
panchanama. On information given by the landlady
of the house in which the appellant and Sangeeta
were residing, it was noted that Sangeeta had been
seen hanging with sari to a ceiling fan. Thereby
suspicion was created that it was a case of
suicide by hanging. After completion of
investigation, charge sheet was sent to the
Sessions Court. The charge was framed against
appellant and other two accused. The prosecution,
in all, examined four witnesses and relying upon
their evidence and documents, the order of
conviction and sentence is passed which is
challenged in this appeal.
04. In order to prove the demand of Rs.
50,000/= and consequential ill-treatment due to
non satisfaction of the demand, there is evidence
of PW-1 Tanhabai (Exh.18) and PW-3 Narsing (Exh.
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28) who are the parents of deceased Sangeeta. Both
have stated consistently as per complaint (Exh.19)
which is reproduced above.
05. Shri Joydeep Chatterji, learned counsel
for the appellant took me through entire evidence
on record. After considering the judgment of the
trial court and the evidence of parents of
Sangeeta, I am satisfied that the trial court has
rightly believed both of them. Their evidence is
natural and inspires confidence. PW-1 Tanhabai
stated in paragraph 3 of her deposition that when
they went to the hospital, Sangeeta was dead;
there was smell of poison from her mouth; there
were injuries around her neck, palm, thighs, legs.
On enquiry by them, they were told that Sangeeta
was found hanging and therefore she was
immediately brought to the hospital. The
complaint is given on the very next day and,
therefore, it cannot be said that the complaint
was filed belatedly. We find some omissions in
her cross examination to the effect that on
telephonic message, Bajrang Parande told them to
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come to Baba Petrol Pump, Aurangabad and
accordingly they came near Baba Petrol Pump and
from there they again made phone call to said
Bajrang Charande who told them to come to Ghati
Hospital. Similarly, another omission is that
after Sangeeta was admitted in Sant Eknath
Hospital, telephone call was made by her to PW-1
Tanhabai to bring money to Baba Petrol Pump.
These omissions can hardly be said to be so
material.
06. The inquest panchanama, which is admitted
at Exhibit 30, shows that froth had come from the
mouth and nostrils of Sangeeta. there were also
injuries on chin, so also tenderness on neck, back
and leg.
07. So far as PW-3 Narsing is concerned, he
was also consistent in his deposition with his
wife Tanhabai. There are certain omissions in his
statements. He had not stated before police that
when Bharat had come to their house to take back
Sangeeta, they were not willing to send her or
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that in June-2007 Sangeeta was accompanied by the
appellant. It is not stated that Sangeeta and
Ganesh thereafter came to demand money and that
Sangeeta said that if money was not given, the
appellant would kill her or that the appellant had
become unhappy when he was told that money would
be paid later on. These are not material
omissions. Evidence is consistent and confidence
inspiring and, therefore, both the witnesses were
rightly believed by the learned Sessions Judge.
08. So far as cause of death is concerned,
evidence of PW-2 Dr.Mugaddimath at Exhibit 25.
Dr.Mugaddimath deposed that he and Dr.
S.H.Chaudhari carried out postmortem between
10.30 am to 11.30 a.m. on 14.3.2008. During
external examination, they found evidence of dried
reddish white froth collected around the nostrils
and around mouth. According to them, probable
cause of death was “suspected poisoning”. Viscera
was preserved. PW-2 Dr. Mugaddimath in para 2 of
his examination in chief deposed to following
effect:
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” On internal examination, we found
evidence of reddish brown froth in lumen
of trachea mucosa of trachea congested,petechial hemorrhages seen in the lumen.
Right and left lungs congested and
odematous. On dissection, dark brownish
red fluid ozzing out scanty. So far aspericardium, heart with weight, we found
whitish patches seen over epicardium,
soft to touch. So far as bucal cavity,
teeth and tongue and pharynx, epiglotttisarea congested with few petechial were
seen. About stomach and its contents, we
found 20 cc of reddish brown scantyindistinguishable pulpy material, no
abnormal smell of the same perceived.
Mulsosa was congested. Streaks of sub-
mocosal hemorrhages seen all over the
surface of mucosa. Rest of the organs
were congested and oedematours.”
Dr.Mugaddimath proved post mortem report at
Exhibit 26. He thereafter referred to histo-
pathological report, the original of which is
proved at Exhibit 27. He came to a conclusion
that death was due to poisoning. I may reproduce
the findings of microscopic examination from
histopathology report.
“MICROSCOPIC EXAM. M568 to M 572/08.
Sections from lung show bronchiols.
alveoli and blood vessels. bronchiols
show normal morphology. There is diffuse
interstitial odema. Very few focal
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11normal. Focal peribronchial carbon
deposition seen. Capillaries areconjested.”
Thus, Dr. Mugaddimath has affirmed that the cause
of death was poisoning. He also asserted that no
injury was found around the neck so as to suggest
that the death was by strangulation. That fact
appears to have been corroborated by the finding
in the post mortem report and histo-pathological
report. We do not find any corroboration to
defence theory that death was due to hanging.
Various observations noted in the post-mortem
notes (Exh.26) only negative said theory.
09. It was argued before this court and also
before the trial court that the C.A. report of
viscera did not reveal any poison and, therefore,
it must not be a case of death by poisoning, but
death due to hanging. The spot panchanama
(Exhibit 29) is admitted by accused under Section
294 of Cr.P.C. and, therefore, it is read in
evidence and it shows that the place of offence
was house in which the appellant was residing with
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his wife at village Feran-Jalgaon in the land of
one Meerabai Bainade. Said Meerabai had shown the
place to the police. At the place, there was a
ceiling fan fixed on steel angle of the roof.
Meerabai stated that Sangeeta had been seen
hanging to fan with a cloth like sari and,
therefore, that cloth was cut. Sangeeta was
unconscious. At the time of panchanama,, there
were two pieces of sari with which Sangeeta was
said to have hanged herself. Those pieces of sari
were attached. Meerabai is not examined as a
defence witness. Her statement appearing in the
panchanama is no evidence. It is worth to note
that accused or members of his family who had
taken Sangeeta to civil hospital, have not filed
any report to the police. They did not give any
information about the circumstances in which
Sangeeta was found and was admitted in the
hospital to any one. They have taken defence of
toal denial during evidence or their statements
under Section 313 of Cr.P.C.. The appellant-
accused or other accused persons have not come
out with any positive case. They simply raised
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some doubt and wanted to get benefit of doubt.
Ordinarily, the appellant-accused himself having
brought Sangeeta to the hospital and when he was
accompanied by others, some of them ought to have
reported the matter to the police. At least
someone from them should have been examined in
defence. The circumstances in which the victim
was found unconscious were within the special
knowledge of the appellant and his relatives. It
is also worth noting that generally, poison is
administered in secrecy and there may not be
direct evidence on that aspect every time. In
this case, there was no occasion for recording
statement of Sangeeta as she was unconscious when
brought to the hospital. We find this in the
report of the doctor which report was treated as
A.D. report. If really, Sangeeta had been found to
have committed suicide by hanging and if it was
not the case of dowry death or homicidal death,
the appellant and his relatives would not have
failed to approach police and report the
circumstances in which Sangeeta died. Even in his
statement under Section 313 of Cr.P.C., the
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appellant does not say anything. So, all this
conduct speaks volume.
10. In this case, learned A.P.P. Shri K.M.
Suryawanshi relied upon some judgments which were
also relied upon by the trial court. The first
case relied upon by the trial court and learned
A.P.P. is Maonhar Kisan Maraskolhe vs State of
Maharashtra 2001 ALL MR (Cri.) 1618.
In paragraph 16, following observations are made:
“16. Mr. Daga, learned counsel for the
appellant has laid much emphasis on thefindings of the Chemical Analyzer, who
found no recognisable poison detected in
the viscera, liver, spleen and kidney of
the deceased. No doubt that the ChemicalAnalyser’s work is very important as
usually his findings are final. But in a
given case, even though a person may die
due to poisoning, poison may not be
detected in viscera. Dr. Tank, in his
evidence, has stated that according tohis opinion, it is not necessary that
poison should be detected in viscera and
he is right and his opinion also finds
support from Modi’s Medical Jurisprudence
& Toxicology, 22nd Edition by
Butterworths and particularly while
dealing with the subject in Section 2 of
his Book on Toxicology at page 22, the
author has observed:
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“It is possible that a person may
die from the effects of a poison, andyet, none may be found in the body after
death if the whole of the poison has
disappeared from the lungs byevaporation, or has been removed from the
stomach and intestines by vomiting and
purging, and after absorption has been
detoxified, conjugated and eliminatedfrom the system by the kidneys and other
channels. Certain vegetable poison may
not be detected in the viscera, as they
have no reliable tests, while someorganic poisons, especially the alkaloids
and glucosides, may, by oxidation during
life or by putrefaction after death, besplit up into other substances which have
no characteristic reactions sufficient
for their identification. Modi saw casesin which there were definite signs of
death from poisoning, although the
Chemical Examiner failed to detect the
poison in the viscera preserved forchemical analysis. It has, therefore,
been wisely held by Christison that incases where a poison has not been
detected on chemical analysis, the judge,
in deciding a charge of poisoning, should
weigh in evidence the symtomps,postmortem appearances and the moral
evidence.”
11. The trial court also referred to the case
of State of Karnataka vs. M.B. Manjunathegowda
2003 Cri.L.J.900. In that case, it was proved that
the deceased was subjected to cruelty and
harassment in connection with demand of dowry by
husband. For certain reasons, the High Court
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disbelieved the evidence and acquitted the accused
of the offence punishable under Section 302 of
I.P.C., but the Supreme Court held that the
circumstances were such that the offence under
Section 304-B is proved. In paragraph 20, the
Supreme Court observed thus;
“20. The aforesaid legal position, as it
stands now, is that in order to establishthe offence under Section 304-B IPC the
prosecution is obliged to prove that thedeath of a woman is caused by any burns
or bodily injury or occurs otherwise than
under normal circumstances and such deathoccurs within 7 years of her marriage and
it is shown that soon before her death
she was subjected to cruelty or
harassment by her husband or any relativeof husband. Such harassment and cruelty
must be in connection with any demand for
dowry.”
In paragraph 17, it is held that When above said
circumstances are proved, presumption under
Section 113-B of the Evidence Act would act and
the presumption is rebutable and the onus to rebut
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shifts on the accused. As observed on paragraph
22, the defence was of total denial and,
therefore, it was held that in absence of any
evidence in rebutal, the presumption remains
unrebutted. Under the circumstances, the
conviction in said matter under Section 304-B is
held to be well founded.
12.
In present case, so far as the report of
the Chemical Analyser is concerned, I may refer to
the case of Dr. Anant Lagu vs. State of Bombay AIR
SC 500, and more particularly paragraph 66 of the
judgment.
“66. The reason for all this is obvious.
Lambert in his book, “The Medico-Legal
Post Mortem in India” (pp.96,99-100) has
stated that the pathologist’s part in the
diagnosis of poisoning is secondary, and
has further observed that several poisonsparticularly of the synthetic hypnotics
and vegetable alkaloids groups do not
leave any characteristic signs which can
be noticed on post-mortem examination.
See Modi’s Medical Jurisprudence and
Toxicology 13th Edition, pages 450-451
and Taylor’s Principles and Practice of
Medical Jurisprudence Volume II, page
229. The same is stated by Otto Saphir
in his book “Autopsy” at pp.71 and 72. In
Dreisbach’s Handbook of Poisons, 1955,
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it is stated that pathological findings
in death from narcotic analgesics are not
characteristic. He goes further and says
that even the laboratory findings are
non-contributory. The poison of the
pathologist who conducts a post-mortem
examination has been summed up by Modi in
Medical Jurisprudence and Toxicology,
13th Edn., p.447 as follows;
“In order to make a probable guess
of the poison and to look for its
characteristic post-mortem appearances,
it is advisable that a medical officer,
before commencing a post mortem
examination on the body of a suspected
case of poisoning, should read the police
report and endeavour to get as much
information as possible from the
relatives of the deceased regarding the
quality & quantity of the poison
administered, the character of the
symptoms with reference to their onset &
the time that elapsed between the taking
of the poison and the development of the
first symptoms, the duration of the
illness, nature of the treatment adopted,
and the time of death. He will find that
in most cases the account supplied by the
police and the relatives is very meager,
or incorrect and misleading. His task
is, therefore, very difficult, especially
when many of the poisons except
corrosives and irritants do not show any
characteristic post-mortem signs and when
bodies are in an advanced state of
decomposition…”
Similarly, Gonzales in Legal Medicine and
Toxicology states at p. 629:
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” The question of whether or not a
negative toxicologic examination is
consistent with death by poison can be
answered affirmatively, as many persons
overcome by carbon monoxide die after
twenty-four hours, at which time the gas
cannot be determined in the blood by
chemical tests. Likewise, the organs of
individuals who have been poisoned by
phosphorus may not contain the toxic
substance responsible for death if they
have managed to survive its effect for
several days.
Many conditions seriously interfere
with the toxicologic examination, such as
post-mortem decomposition…”
In paragraph 67, it is further observed;
“67. We need not multiply
authorities, because every book on
toxicology begins with a statement of
such a fact. Of course, there is achemical test for almost every poison,
but it is impossible to expect a search
for every poison. Even in chemical
analysis, the chemical analyser may be
unsuccessful for various reasons. Taylor
in his Principles and Practice ofMedical Jurisprudence, (Vol. II, p. 228)
gives three possible explanations for
negative findings, viz. (1) the case may
have been of disease only; (2) the poison
may have been eliminated by vomiting or
other means or neutralised or
metabolised; and (3) the analysis may
have been faultily performed.”
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13. So, in present case, merely because C.A.
report regarding viscera did not disclose any
poison will not caste any doubt on the evidence of
PW-2 Dr. Mugaddimath who substantiated his
findings regarding death due to poisoning by
cogent reasons.
14.
In the circumstances, this is not a case
wherein any interference in the order of
conviction is called for. Learned Advocate Shri
Joydeep Chatterji for the appellant prayed for
showing leniency. However, having regard to the
facts and circumstances particularly when colour
was being given to death due to poisoning, of it
being a suicide by hanging, no leniency deserves
to be shown. Death is shrouded in very suspicious
circumstances. All ingredients of dowry death
punishable under Section 304-B I.P.Code are fully
established beyond doubt. The number of dowry
deaths and deaths of newly married girls are not
reducing in spite of stringent provisions of law
and, therefore, this is a case requiring deterent
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punishment.
15. Hence, Appeal stands dismissed and the
order of conviction and sentence passed by the
learned Additional Sessions Judge-2, Aurangabad,
in Sessions Case No. 154 of 2008 decided on
19.3.2009, is hereby confirmed.
pnd/criapl-344.09 (P.R.BORKAR, J.)
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