Bombay High Court High Court

Ganesh vs The State Of Maharashtra on 9 March, 2010

Bombay High Court
Ganesh vs The State Of Maharashtra on 9 March, 2010
Bench: P. R. Borkar
                                   1

            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 as

pericardium, heart with weight, we found
whitish patches seen over epicardium,
soft to touch. So far as bucal cavity,
teeth and tongue and pharynx, epiglotttis

area congested with few petechial were
seen. About stomach and its contents, we
found 20 cc of reddish brown scanty

indistinguishable 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
alveoli show odema fluid, plura appears

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normal. Focal peribronchial carbon
deposition seen. Capillaries are

conjested.”

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 the

findings of the Chemical Analyzer, who
found no recognisable poison detected in
the viscera, liver, spleen and kidney of
the deceased. No doubt that the Chemical

Analyser’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 to

his 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, and

yet, none may be found in the body after
death if the whole of the poison has
disappeared from the lungs by

evaporation, or has been removed from the
stomach and intestines by vomiting and
purging, and after absorption has been
detoxified, conjugated and eliminated

from 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 some

organic poisons, especially the alkaloids
and glucosides, may, by oxidation during
life or by putrefaction after death, be

split up into other substances which have
no characteristic reactions sufficient
for their identification. Modi saw cases

in which there were definite signs of
death from poisoning, although the
Chemical Examiner failed to detect the
poison in the viscera preserved for

chemical analysis. It has, therefore,
been wisely held by Christison that in

cases 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 establish

the offence under Section 304-B IPC the
prosecution is obliged to prove that the

death of a woman is caused by any burns
or bodily injury or occurs otherwise than
under normal circumstances and such death

occurs 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 relative

of 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 poisons

particularly 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 a

chemical 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 of

Medical 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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