{"id":235989,"date":"2010-03-09T00:00:00","date_gmt":"2010-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ganesh-vs-the-state-of-maharashtra-on-9-march-2010"},"modified":"2018-08-08T21:30:59","modified_gmt":"2018-08-08T16:00:59","slug":"ganesh-vs-the-state-of-maharashtra-on-9-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ganesh-vs-the-state-of-maharashtra-on-9-march-2010","title":{"rendered":"Ganesh vs The State Of Maharashtra on 9 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ganesh vs The State Of Maharashtra on 9 March, 2010<\/div>\n
Bench: P. R. Borkar<\/div>\n
                                   1\n\n            IN \n               THE HIGH COURT OF JUDICATURE AT BOMBAY\n                                                     \n               APPELLATE SIDE, BENCH AT AURANGABAD\n\n\n\n\n                                                                    \n                   CRIMINAL APPEAL NO.344 OF 2009\n\n\n\n\n                                           \n     Ganesh s\/o Ambarsing Kahite\n     age  25  years,  occupation:\n\n\n\n\n                                          \n     agriculturist,  r\/of  Feran\n     Jalgaon, Taluka and District           .. Appellant\/orig.\n     Aurangabad.                               accused No. 1.\n\n\n\n\n                                 \n                versus\n                     \n     The State of Maharashtra               .. Respondent.\n\n                ----\n                    \n     Shri   Joydeep   Chatterji,   Advocate   for   the   appellant. \n     Shri K.M.Suryawanshi, A.P.P. for the Respondent-State.\n                ----\n      \n\n\n                                       Coram : P. R. Borkar, J.\n<\/pre>\n
                                       Date  : March, 09, 2010<\/p>\n
     ORAL JUDGMENT<\/p>\n
     01.        This   is   an   appeal   filed   by   original <\/p>\n
     accused No.1  being  aggrieved  by the order  passed <\/p>\n
     by   the   learned   Additional   Sessions   Judge-2, <\/p>\n
     Aurangabad,   in   Sessions   Case   No.   154   of   2008 <\/p>\n
     decided on 19.3.2009, whereby present appellant is <\/p>\n
     convicted of the offences punishable under Section <\/p>\n
     304-B   and   498-A   of   the   Indian   Penal   Code.     For <\/p>\n
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\n                                     2<\/span><\/p>\n
     offence under Section 304-B of IPC, the appellant <\/p>\n
     is   sentenced   to   suffer   rigorous   imprisonment   for <\/p>\n
     ten   years   and   to   pay   fine   of   Rs.5,000\/=   and   for <\/p>\n
     offence   under   Section   498-A   IPC,   no   separate <\/p>\n
     sentence is awarded. Original accused Nos. 2 and 3 <\/p>\n
     are acquitted of both the offences.\n<\/p>\n
     02.        Briefly   stated,   the   prosecution   case   is <\/p>\n
     that   that   PW-1   Tanhabai   (Exh.18),   mother   of <\/p>\n
     deceased   Sangeeta,   lodged   complaint   on   14.3.2008 <\/p>\n
     at   Police   Station,   Karmad,   stating   that   Sangeeta <\/p>\n
     was   one   of   her   daughters   and   she   was   given   in <\/p>\n
     marriage   to   present   appellant.   The   marriage   was <\/p>\n
     performed   on   14.5.2006   at   village   Kern-Jalgaon, <\/p>\n
     Taluka   and   District   Aurangabad.   After   the <\/p>\n
     marriage, for one month Sangeeta was treated well, <\/p>\n
     but thereafter  on  trifle  matters,  she  was  abused <\/p>\n
     and   beaten   by   husband-appellant.   It   was   his <\/p>\n
     complaint that in the marriage, he was paid very <\/p>\n
     meagre dowry and, therefore, Sangeeta should bring <\/p>\n
     Rs.50,000\/=   from   her   parents   for   purchasing   a <\/p>\n
     motorcycle.     The   appellant   also   boasted   that   he <\/p>\n
     had killed one boy and threatened Sangeeta that if <\/p>\n
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\n                                     3<\/span><\/p>\n
     she did not bring rs.50,000\/= from her parents, he <\/p>\n
     would kill her as he had killed the boy. Sangeeta <\/p>\n
     used  to tell  about  the  demand,  ill-treatment  and <\/p>\n
     threats, to her parents whenever she visited them.\n<\/p>\n
     However, the parents used to console her  and send <\/p>\n
     her   back.     In   June   2007,   Sangeeta   came   to   her <\/p>\n
     parents   and   started     crying     by   saying   that <\/p>\n
     original   accused   Nos.   2   and   3,   who   were   the <\/p>\n
     sisters of appellant, used to visit the house of <\/p>\n
     appellant   after   frequency   of   8-10   days   and <\/p>\n
     instigate him to beat Sangeeta.  Both accused Nos.\n<\/p>\n
     2   and   3   had   been     telling   Sangeeta   that   if   she <\/p>\n
     brought Rs.50,000\/= from her parents, there would <\/p>\n
     not   be   trouble   to   her.     The   appellant   had   then <\/p>\n
     come   to   parents   when   Sangeeta   was   residing   with <\/p>\n
     them   and   requested   to   send   her   back,   but   at   the <\/p>\n
     same time he demanded Rs.3000\/= which were paid to <\/p>\n
     him.   Two months thereafter, elder maternal uncle <\/p>\n
     of   the   appellant,   by   name   Devising   Bainade <\/p>\n
     telephonically   informed     the   parents   of   Sangeeta <\/p>\n
     that  Sangeeta  was  severely  beaten  by  her  husband <\/p>\n
     and,   therefore,   they   should   take   her   back.   The <\/p>\n
     complainant   (PW-2)   therefore,   went   to   village <\/p>\n
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\n                                    4<\/span><\/p>\n
     Feran-Jalgaon     where   Sangeeta   was   residing   and <\/p>\n
     noticed that there were weal marks on the person <\/p>\n
     of   Sangeeta.   The   complainant,   therefore,   took <\/p>\n
     Sangeeta to doctor  at village Shekata and treated <\/p>\n
     her.   Sangeeta   was   taken   to   her   parental   house <\/p>\n
     where she resided for fifteen days.  Sangeeta told <\/p>\n
     her mother that for non satisfaction of demand of <\/p>\n
     money,  she  was  severely beaten  by  appellant.  The <\/p>\n
     appellant   was     saying   that   since   his   maternal <\/p>\n
     uncle   Laxman   Bainade   was   working   as   Police   at <\/p>\n
     Aurangabad,   he   (appellant)   could   get   acquittal <\/p>\n
     even   if   he   causes   danger   to   her   life.       After <\/p>\n
     fifteen   days   from   the   stay   of   Sangeeta   with   her <\/p>\n
     parents,   Bharat-   the   brother-in-law   of   the <\/p>\n
     appellant,   came   to   the   parents   of   Sangeeta   and <\/p>\n
     assured that  there  would  not  be ill-treatment  to <\/p>\n
     Sangeeta and therefore they should send her to the <\/p>\n
     house   of   her   husband.   Accordingly,   Sangeeta   was <\/p>\n
     sent   to   Feran-Jalgaon.     On   10.3.2008   both, <\/p>\n
     Sangeeta and the appellant, had come to the temple <\/p>\n
     at Mhaismal. At that time the appellant told PW-1 <\/p>\n
     Tanhabai that in the marriage, they had paid very <\/p>\n
     meagre   dowry   and   therefore   they   should   pay   Rs.\n<\/p>\n
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\n                                     5<\/span><\/p>\n
     50,000\/= to him.  However, Tanhabai told that they <\/p>\n
     did not have money and after getting money, they <\/p>\n
     would pay to him.  Appellant, however, said  that <\/p>\n
     such   an   excuse   had   been   given   for   two   years.   He <\/p>\n
     expressed   his   unhappiness.   On   13.3.2008   Sangeeta <\/p>\n
     and   the   appellant   had   come   to   Faren-Jalgaon.   On <\/p>\n
     that day at about 6.00 p.m., one Bajrang Charande <\/p>\n
     telephonically   informed   the   complainant   that <\/p>\n
     Sangeeta   had   become   unconscious   and   asked   the <\/p>\n
     complainant   to   come   to   Baba   Petrol   Pump   at <\/p>\n
     Aurangabad. Accordingly, parents of Sangeeta with <\/p>\n
     relatives   came   to   Aurangabad   and   then   went   to <\/p>\n
     Govt.   hospital,   Aurangabad,   where   they   were   told <\/p>\n
     that Sangeeta was dead.  They saw the dead body of <\/p>\n
     Sangeeta   and   noticed   that   there   was   smell   of <\/p>\n
     poison   from   her   nostile;   there   were   injuries   to <\/p>\n
     her legs and chin.\n<\/p>\n
     03.        After   lodging   above   complaint,   police <\/p>\n
     registered   the   offence   and   carried   out   further <\/p>\n
     investigation.   Inquest   of   dead   body   was   drawn.\n<\/p>\n
     The   dead body was subjected to autopsy. Viscera <\/p>\n
     was   sent   to   Chemical   Analyzer.     Before   lodging <\/p>\n
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\n                                   6<\/span><\/p>\n
     complaint   on     14.3.2008,   on   13.3.2008   at   about <\/p>\n
     9.10   a.m.   A.D.   was   registered   at   Karmad   Police <\/p>\n
     Station   on   the   MLC   letter   received   from   the <\/p>\n
     Government   Hospital,   Aurangabad,   regarding   death <\/p>\n
     of   Sangeeta.       Police   had   also   drawn   spot <\/p>\n
     panchanama.   On   information   given   by   the   landlady <\/p>\n
     of the house in which the appellant and Sangeeta <\/p>\n
     were residing, it was noted that Sangeeta had been <\/p>\n
     seen hanging with sari to a ceiling fan. Thereby <\/p>\n
     suspicion   was   created   that   it   was   a   case   of <\/p>\n
     suicide   by   hanging.   After   completion   of <\/p>\n
     investigation,   charge   sheet   was   sent   to   the <\/p>\n
     Sessions   Court.   The     charge   was   framed   against <\/p>\n
     appellant and other two accused.  The prosecution, <\/p>\n
     in  all, examined  four  witnesses and relying upon <\/p>\n
     their   evidence   and   documents,   the   order   of <\/p>\n
     conviction   and   sentence   is   passed   which   is <\/p>\n
     challenged in this appeal.\n<\/p>\n
     04.       In   order   to   prove   the   demand   of   Rs.\n<\/p>\n
     50,000\/=   and   consequential   ill-treatment   due   to <\/p>\n
     non satisfaction of the demand, there is evidence <\/p>\n
     of  PW-1 Tanhabai  (Exh.18)  and  PW-3 Narsing  (Exh.\n<\/p>\n
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\n                                    7<\/span><\/p>\n
     28) who are the parents of deceased Sangeeta. Both <\/p>\n
     have stated consistently as per complaint (Exh.19) <\/p>\n
     which is reproduced above.\n<\/p>\n
     05.        Shri   Joydeep   Chatterji,   learned   counsel <\/p>\n
     for the appellant took me through entire evidence <\/p>\n
     on  record.  After  considering  the  judgment  of  the <\/p>\n
     trial   court   and   the   evidence   of   parents   of <\/p>\n
     Sangeeta, I am satisfied that the trial court has <\/p>\n
     rightly believed both of them.   Their evidence is <\/p>\n
     natural   and   inspires   confidence.   PW-1   Tanhabai <\/p>\n
     stated in paragraph 3 of her deposition that when <\/p>\n
     they   went   to   the   hospital,   Sangeeta   was   dead;\n<\/p>\n
     there   was   smell   of   poison   from   her   mouth;   there <\/p>\n
     were injuries around her neck, palm, thighs, legs.\n<\/p>\n
     On enquiry by them, they were told that Sangeeta <\/p>\n
     was   found   hanging   and   therefore   she   was <\/p>\n
     immediately   brought   to   the   hospital.     The <\/p>\n
     complaint   is   given   on   the   very   next   day   and, <\/p>\n
     therefore,   it   cannot   be   said   that   the   complaint <\/p>\n
     was filed belatedly.     We find some omissions in <\/p>\n
     her   cross   examination   to   the   effect   that   on <\/p>\n
     telephonic   message,   Bajrang   Parande   told   them   to <\/p>\n
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\n                                    8<\/span><\/p>\n
     come   to   Baba   Petrol   Pump,   Aurangabad   and <\/p>\n
     accordingly   they   came   near   Baba   Petrol   Pump   and <\/p>\n
     from   there   they   again   made   phone   call   to   said <\/p>\n
     Bajrang   Charande   who   told   them   to   come   to   Ghati <\/p>\n
     Hospital.   Similarly,   another   omission   is   that <\/p>\n
     after   Sangeeta   was   admitted   in   Sant   Eknath <\/p>\n
     Hospital, telephone call was made by her to PW-1 <\/p>\n
     Tanhabai   to   bring   money   to   Baba   Petrol   Pump.\n<\/p>\n
     These   omissions   can   hardly   be   said   to   be   so <\/p>\n
     material.\n<\/p>\n
     06.        The inquest panchanama, which is admitted <\/p>\n
     at Exhibit 30, shows that froth had come from the <\/p>\n
     mouth and nostrils of Sangeeta.   there were also <\/p>\n
     injuries on chin, so also tenderness on neck, back <\/p>\n
     and leg.\n<\/p>\n
     07.        So  far as PW-3 Narsing  is concerned, he <\/p>\n
     was   also   consistent   in   his   deposition   with   his <\/p>\n
     wife Tanhabai. There are certain omissions in his <\/p>\n
     statements.  He had not stated before police that <\/p>\n
     when Bharat had come to their house to take back <\/p>\n
     Sangeeta,   they   were   not   willing   to   send   her   or <\/p>\n
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\n                                    9<\/span><\/p>\n
     that in June-2007 Sangeeta was accompanied by the <\/p>\n
     appellant.     It   is   not   stated   that   Sangeeta   and <\/p>\n
     Ganesh   thereafter   came   to   demand   money   and   that <\/p>\n
     Sangeeta   said   that   if   money   was   not   given,   the <\/p>\n
     appellant would kill her or that the appellant had <\/p>\n
     become unhappy when he was told that money would <\/p>\n
     be   paid   later   on.     These   are   not   material <\/p>\n
     omissions.   Evidence is consistent and confidence <\/p>\n
     inspiring and, therefore, both the witnesses were <\/p>\n
     rightly believed by the learned Sessions Judge.\n<\/p>\n
     08.        So   far   as   cause   of   death   is   concerned, <\/p>\n
     evidence   of   PW-2   Dr.Mugaddimath   at   Exhibit   25.\n<\/p>\n
     Dr.Mugaddimath   deposed   that   he   and   Dr. <\/p>\n
     S.H.Chaudhari     carried   out   postmortem   between <\/p>\n
     10.30   am   to   11.30   a.m.   on   14.3.2008.   During <\/p>\n
     external examination, they found evidence of dried <\/p>\n
     reddish white froth collected around the nostrils <\/p>\n
     and   around   mouth.     According   to   them,     probable <\/p>\n
     cause of death was “suspected poisoning”. Viscera <\/p>\n
     was preserved.  PW-2 Dr. Mugaddimath in para 2 of <\/p>\n
     his   examination   in   chief   deposed   to   following <\/p>\n
     effect:\n<\/p>\n
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\n                                    10<\/span><\/p>\n
                ”     On   internal   examination,   we   found
\n                evidence of reddish brown froth in lumen
\n                of   trachea   mucosa   of   trachea   congested, <\/p>\n
                petechial hemorrhages seen in the lumen.
\n                Right   and   left   lungs   congested   and
\n                odematous.   On dissection, dark brownish
\n                red fluid ozzing out scanty.   So far as <\/p>\n
                pericardium, heart with weight, we found
\n                whitish   patches   seen   over   epicardium,
\n                soft to touch.   So far as bucal cavity,
\n                teeth and tongue and pharynx, epiglotttis <\/p>\n
                area   congested   with   few   petechial   were
\n                seen. About stomach and its contents, we
\n                found   20   cc   of   reddish   brown   scanty <\/p>\n
                indistinguishable     pulpy   material,   no
\n                abnormal   smell   of   the   same   perceived.
\n                Mulsosa   was   congested.     Streaks   of   sub-\n<\/p><\/blockquote>\n
                mocosal   hemorrhages   seen   all   over   the
\n                surface   of   mucosa.   Rest   of   the   organs
\n                were congested and oedematours.”\n<\/p><\/blockquote>\n
     Dr.Mugaddimath   proved   post   mortem   report   at <\/p>\n
     Exhibit   26.   He   thereafter   referred   to   histo-\n<\/p>\n
     pathological   report,   the   original   of   which   is <\/p>\n
     proved   at   Exhibit   27.     He   came   to   a   conclusion <\/p>\n
     that death was due to poisoning.  I may reproduce <\/p>\n
     the   findings   of   microscopic   examination   from <\/p>\n
     histopathology report.\n<\/p>\n
                “MICROSCOPIC   EXAM.   M568   to   M   572\/08.
\n                Sections   from   lung   show   bronchiols.
\n                alveoli   and   blood   vessels.   bronchiols
\n                show normal morphology. There is diffuse
\n                interstitial   odema.   Very   few   focal
\n                alveoli   show   odema   fluid,   plura   appears <\/p>\n
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\n                                    11<\/span><\/p>\n
                normal.   Focal   peribronchial   carbon
\n                deposition   seen.     Capillaries   are <\/p>\n
                conjested.”\n<\/p><\/blockquote>\n
     Thus, Dr. Mugaddimath has affirmed that the cause <\/p>\n
     of death was poisoning.  He also asserted that no <\/p>\n
     injury was found around the neck so as to suggest <\/p>\n
     that   the   death   was   by   strangulation.     That   fact <\/p>\n
     appears to  have been  corroborated  by  the  finding <\/p>\n
     in   the   post   mortem   report   and   histo-pathological <\/p>\n
     report.   We   do   not   find   any   corroboration   to <\/p>\n
     defence   theory   that   death   was   due   to   hanging.\n<\/p>\n
     Various   observations   noted   in   the   post-mortem <\/p>\n
     notes (Exh.26) only negative said theory.\n<\/p>\n
     09.        It was argued before this court and also <\/p>\n
     before   the   trial   court   that   the   C.A.   report   of <\/p>\n
     viscera did not reveal any poison and, therefore, <\/p>\n
     it must not be a case of death by poisoning, but <\/p>\n
     death   due   to   hanging.     The   spot   panchanama <\/p>\n
     (Exhibit 29) is admitted by accused under Section <\/p>\n
     294   of   Cr.P.C.   and,   therefore,   it   is   read   in <\/p>\n
     evidence   and   it   shows   that   the   place   of   offence <\/p>\n
     was house in which the appellant was residing with <\/p>\n
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\n                                     12<\/span><\/p>\n
     his wife at village Feran-Jalgaon in the land of <\/p>\n
     one Meerabai Bainade. Said Meerabai  had shown the <\/p>\n
     place   to   the   police.   At   the   place,   there   was   a <\/p>\n
     ceiling   fan   fixed   on   steel   angle   of   the   roof.\n<\/p>\n
     Meerabai   stated   that   Sangeeta   had   been   seen <\/p>\n
     hanging   to   fan   with   a   cloth   like   sari   and, <\/p>\n
     therefore,   that   cloth   was   cut.   Sangeeta   was <\/p>\n
     unconscious.     At   the   time   of   panchanama,,   there <\/p>\n
     were   two   pieces   of   sari   with   which   Sangeeta   was <\/p>\n
     said to have hanged herself.  Those pieces of sari <\/p>\n
     were     attached.   Meerabai   is   not   examined   as   a <\/p>\n
     defence witness.   Her  statement appearing  in  the <\/p>\n
     panchanama   is   no   evidence.     It   is   worth   to   note <\/p>\n
     that   accused   or   members   of   his   family   who   had <\/p>\n
     taken  Sangeeta  to  civil hospital,  have  not  filed <\/p>\n
     any   report   to   the   police.   They   did   not   give   any <\/p>\n
     information   about   the   circumstances   in   which <\/p>\n
     Sangeeta   was   found   and   was   admitted   in   the <\/p>\n
     hospital   to   any   one.   They   have   taken   defence   of <\/p>\n
     toal   denial   during   evidence   or   their   statements <\/p>\n
     under   Section   313   of   Cr.P.C..     The   appellant-\n<\/p>\n
     accused     or   other   accused   persons   have   not   come <\/p>\n
     out   with any positive case.   They simply raised <\/p>\n
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\n                                    13<\/span><\/p>\n
     some   doubt   and   wanted   to   get   benefit   of   doubt.\n<\/p>\n
     Ordinarily,   the   appellant-accused   himself   having <\/p>\n
     brought Sangeeta to the hospital and when he was <\/p>\n
     accompanied by others, some of them ought to have <\/p>\n
     reported   the   matter   to   the   police.   At   least <\/p>\n
     someone   from   them   should   have   been   examined   in <\/p>\n
     defence.     The   circumstances   in   which   the   victim <\/p>\n
     was   found   unconscious   were   within   the   special <\/p>\n
     knowledge of the appellant and his relatives.  It <\/p>\n
     is   also   worth   noting   that   generally,   poison   is <\/p>\n
     administered   in   secrecy   and   there   may   not   be <\/p>\n
     direct   evidence   on   that   aspect   every   time.     In <\/p>\n
     this   case,   there   was   no   occasion   for   recording <\/p>\n
     statement of Sangeeta as she was unconscious when <\/p>\n
     brought   to   the   hospital.   We   find   this   in     the <\/p>\n
     report of the doctor which report was treated as <\/p>\n
     A.D. report. If really, Sangeeta had been found to <\/p>\n
     have   committed   suicide   by   hanging   and   if   it   was <\/p>\n
     not   the   case   of   dowry   death   or   homicidal   death, <\/p>\n
     the   appellant   and   his   relatives   would   not   have <\/p>\n
     failed   to   approach   police   and   report   the <\/p>\n
     circumstances in which Sangeeta died. Even in his <\/p>\n
     statement   under   Section   313   of   Cr.P.C.,   the <\/p>\n
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\n                                    14<\/span><\/p>\n
     appellant   does   not   say   anything.   So,   all   this <\/p>\n
     conduct speaks volume.\n<\/p>\n
     10.        In   this   case,   learned   A.P.P.   Shri   K.M.\n<\/p>\n
     Suryawanshi relied upon some judgments which were <\/p>\n
     also   relied   upon   by   the   trial   court.     The   first <\/p>\n
     case   relied   upon   by   the   trial   court   and   learned <\/p>\n
     A.P.P.   is  Maonhar   Kisan   Maraskolhe   vs   State   of <\/p>\n
     Maharashtra<\/a> 2001 ALL MR (Cri.) 1618.\n<\/p>\n
     In paragraph 16, following observations are made:\n<\/p>\n
                “16. Mr.   Daga,   learned   counsel   for   the
\n                appellant   has   laid   much   emphasis   on   the <\/p>\n
                findings   of   the   Chemical   Analyzer,   who
\n                found no recognisable poison detected in
\n                the viscera, liver, spleen and kidney of
\n                the deceased.  No doubt that the Chemical <\/p>\n
                Analyser’s   work   is   very   important   as
\n                usually his findings are final. But in a
\n                given case, even though a person may die
\n                due   to   poisoning,   poison   may   not   be
\n                detected   in   viscera.   Dr.   Tank,   in   his
\n                evidence,   has   stated   that   according   to <\/p>\n
                his   opinion,   it   is   not   necessary   that
\n                poison should be detected in viscera and
\n                he   is   right   and   his   opinion   also   finds
\n                support from Modi’s Medical Jurisprudence
\n                &   Toxicology,   22nd   Edition   by
\n                Butterworths   and   particularly   while
\n                dealing with the subject in Section 2 of
\n                his   Book   on   Toxicology   at   page   22,   the
\n                author has observed:\n<\/p><\/blockquote>\n
                                            ::: Downloaded on – 09\/06\/2013 15:41:36 :::<\/span>
\n                                  15<\/span><\/p>\n
                     “It   is   possible   that   a   person   may
\n               die   from   the   effects   of   a   poison,   and <\/p>\n
               yet, none may be found in the body after
\n               death   if   the   whole   of   the   poison   has
\n               disappeared   from   the   lungs   by <\/p>\n
               evaporation, or has been removed from the
\n               stomach   and   intestines   by   vomiting   and
\n               purging,   and   after   absorption   has   been
\n               detoxified,   conjugated   and   eliminated <\/p>\n
               from the system by the kidneys and other
\n               channels.   Certain vegetable poison   may
\n               not be detected in the  viscera, as  they
\n               have   no   reliable   tests,   while   some <\/p>\n
               organic poisons, especially the alkaloids
\n               and glucosides, may, by oxidation during
\n               life   or   by   putrefaction   after   death,   be <\/p>\n
               split up into other substances which have
\n               no   characteristic   reactions   sufficient
\n               for their identification.  Modi saw cases <\/p>\n
               in   which   there   were   definite   signs   of
\n               death   from   poisoning,   although   the
\n               Chemical   Examiner   failed   to   detect   the
\n               poison   in   the   viscera   preserved   for <\/p>\n
               chemical   analysis.     It   has,   therefore,
\n               been   wisely   held   by   Christison   that   in <\/p>\n
               cases   where     a   poison   has   not   been
\n               detected on chemical analysis, the judge,
\n               in deciding a charge of poisoning, should
\n               weigh   in   evidence   the   symtomps, <\/p>\n
               postmortem   appearances   and   the   moral
\n               evidence.”\n<\/p><\/blockquote>\n
     11.       The trial court also referred to the case <\/p>\n
     of  State   of   Karnataka   vs.   M.B.   Manjunathegowda<\/a> <\/p>\n
     2003 Cri.L.J.900. In that case, it was proved that <\/p>\n
     the   deceased   was   subjected   to   cruelty   and <\/p>\n
     harassment  in  connection  with  demand  of dowry  by <\/p>\n
     husband.   For   certain   reasons,   the   High   Court <\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 15:41:36 :::<\/span>
\n                                    16<\/span><\/p>\n
     disbelieved the evidence and acquitted the accused <\/p>\n
     of   the   offence   punishable   under   Section   302   of <\/p>\n
     I.P.C.,   but   the   Supreme   Court   held   that   the <\/p>\n
     circumstances   were   such   that   the   offence   under <\/p>\n
     Section   304-B   is   proved.     In   paragraph   20,   the <\/p>\n
     Supreme Court observed thus;\n<\/p>\n
                “20. The   aforesaid   legal   position,   as   it
\n                stands now, is that in order to establish <\/p>\n
                the   offence   under   Section   304-B   IPC   the
\n                prosecution is obliged to prove that the <\/p>\n
                death of a woman is caused by any burns
\n                or bodily injury or occurs otherwise than
\n                under normal circumstances and such death <\/p>\n
                occurs within 7 years of her marriage and <\/p>\n
                it   is   shown   that   soon   before   her   death
\n                she   was   subjected   to   cruelty   or
\n                harassment by her husband or any relative <\/p>\n
                of   husband.   Such   harassment   and   cruelty
\n                must be in connection with any demand for
\n                dowry.”\n<\/p><\/blockquote>\n
     In paragraph 17, it is held that When above said <\/p>\n
     circumstances   are     proved,     presumption   under <\/p>\n
     Section   113-B   of   the   Evidence   Act   would   act   and <\/p>\n
     the presumption is rebutable and the onus to rebut <\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 15:41:36 :::<\/span>
\n                                    17<\/span><\/p>\n
     shifts on the accused.   As observed on paragraph <\/p>\n
     22,     the   defence   was   of   total   denial   and, <\/p>\n
     therefore,   it   was   held   that   in   absence   of   any <\/p>\n
     evidence   in   rebutal,   the   presumption   remains <\/p>\n
     unrebutted.   Under   the   circumstances,   the <\/p>\n
     conviction  in  said  matter  under Section 304-B  is <\/p>\n
     held to be well founded.\n<\/p>\n
     12.<\/p>\n
                 In present case, so far as the report of <\/p>\n
     the Chemical Analyser is concerned, I may refer to <\/p>\n
     the case of Dr. Anant Lagu vs. State of Bombay AIR <\/p>\n
     SC<\/a> 500, and more particularly paragraph 66 of the <\/p>\n
     judgment.\n<\/p>\n
                 “66. The reason for all this is obvious.\n<\/p><\/blockquote>\n
                 Lambert   in   his   book,   “The   Medico-Legal
\n                 Post Mortem in India” (pp.96,99-100) has
\n                 stated that the pathologist’s part in the
\n                 diagnosis of poisoning is secondary, and
\n                 has further observed that several poisons <\/p>\n
                 particularly   of   the   synthetic   hypnotics
\n                 and   vegetable   alkaloids   groups   do   not
\n                 leave any characteristic signs which can
\n                 be   noticed   on   post-mortem   examination. <\/p><\/blockquote>\n
                 See   Modi’s   Medical   Jurisprudence   and
\n                 Toxicology     13th   Edition,   pages   450-451
\n                 and   Taylor’s   Principles   and   Practice   of
\n                 Medical   Jurisprudence   Volume   II,   page\n<\/p>\n
                 229.   The same is stated by Otto Saphir
\n                 in his book “Autopsy” at pp.71 and 72. In
\n                 Dreisbach’s  Handbook  of  Poisons, 1955, <\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 15:41:36 :::<\/span>
\n                          18<\/span><\/p>\n
      it   is   stated   that   pathological   findings <\/p>\n
      in death from narcotic analgesics are not
\n      characteristic.  He goes further and says
\n      that   even   the   laboratory   findings   are <\/p>\n
      non-contributory.   The   poison   of   the
\n      pathologist   who   conducts   a   post-mortem
\n      examination has been summed up by Modi in
\n      Medical   Jurisprudence   and   Toxicology, <\/p>\n
      13th Edn., p.447 as follows;\n<\/p>\n
            “In   order   to   make   a   probable   guess
\n      of   the   poison   and   to   look   for   its
\n      characteristic     post-mortem   appearances, <\/p>\n
      it   is   advisable   that   a   medical   officer,
\n      before   commencing   a   post   mortem
\n      examination   on   the   body   of   a   suspected <\/p>\n
      case of poisoning, should read the police
\n      report   and   endeavour   to   get   as   much
\n      information   as   possible   from   the
\n      relatives   of   the   deceased   regarding   the <\/p>\n
      quality   &   quantity   of   the   poison
\n      administered,   the   character   of   the <\/p>\n
      symptoms with reference to their onset &
\n      the time that elapsed between the taking
\n      of the poison and the development of the
\n      first   symptoms,   the   duration   of   the <\/p>\n
      illness, nature of the treatment adopted,
\n      and the time of death.  He will find that
\n      in most cases the account supplied by the
\n      police and the relatives is very meager,
\n      or   incorrect   and   misleading.   His   task
\n      is, therefore, very difficult, especially <\/p>\n
      when   many   of   the   poisons   except
\n      corrosives and irritants do not show any
\n      characteristic post-mortem signs and when
\n      bodies   are   in   an   advanced   state   of
\n      decomposition…”\n<\/p>\n
      Similarly, Gonzales in Legal Medicine and
\n      Toxicology states at p. 629:\n<\/p>\n
                                 ::: Downloaded on – 09\/06\/2013 15:41:36 :::<\/span>
\n                                 19<\/span><\/p>\n
                   ”     The question of whether or not a
\n              negative   toxicologic   examination   is
\n              consistent   with   death   by   poison   can   be <\/p>\n
              answered   affirmatively,   as   many   persons
\n              overcome   by   carbon   monoxide   die   after
\n              twenty-four hours, at which time the gas
\n              cannot   be   determined   in   the   blood   by <\/p>\n
              chemical tests.   Likewise, the organs of
\n              individuals   who   have   been   poisoned   by
\n              phosphorus   may   not   contain   the   toxic
\n              substance   responsible   for   death   if   they <\/p>\n
              have   managed   to   survive   its   effect   for
\n              several days.\n<\/p>\n
                   Many   conditions   seriously   interfere
\n              with the toxicologic examination, such as <\/p>\n
              post-mortem decomposition…”\n<\/p>\n
     In paragraph 67, it is further observed;\n<\/p>\n
                    “67. We   need   not   multiply
\n              authorities,   because   every   book   on
\n              toxicology   begins   with   a   statement   of
\n              such   a   fact.     Of   course,   there   is   a <\/p>\n
              chemical   test   for   almost   every   poison,
\n              but it is impossible  to expect a search
\n              for   every   poison.     Even   in   chemical
\n              analysis,   the   chemical   analyser   may   be
\n              unsuccessful for various reasons.  Taylor
\n              in   his     Principles   and   Practice   of <\/p>\n
              Medical Jurisprudence, (Vol. II, p. 228)
\n              gives   three   possible   explanations   for
\n              negative findings, viz. (1) the case may
\n              have been of disease only; (2) the poison
\n              may   have   been   eliminated   by   vomiting   or
\n              other   means   or   neutralised   or
\n              metabolised;   and   (3)   the   analysis   may
\n              have been faultily performed.”\n<\/p><\/blockquote>\n
                                         ::: Downloaded on – 09\/06\/2013 15:41:36 :::<\/span>
\n                                  20<\/span><\/p>\n
     13.       So, in present case,  merely because C.A.\n<\/p>\n
     report   regarding   viscera   did   not   disclose   any <\/p>\n
     poison will not caste any doubt on the evidence of <\/p>\n
     PW-2   Dr.   Mugaddimath   who   substantiated   his <\/p>\n
     findings   regarding   death   due   to   poisoning   by <\/p>\n
     cogent reasons.\n<\/p>\n
     14.<\/p>\n
               In the circumstances, this is not a case <\/p>\n
     wherein   any   interference   in   the   order   of <\/p>\n
     conviction  is  called  for.    Learned  Advocate Shri <\/p>\n
     Joydeep   Chatterji   for   the   appellant   prayed   for <\/p>\n
     showing   leniency.   However,   having   regard   to   the <\/p>\n
     facts   and   circumstances   particularly   when   colour <\/p>\n
     was being given to death due to poisoning, of it <\/p>\n
     being  a suicide by  hanging, no  leniency deserves <\/p>\n
     to be shown. Death  is shrouded in very suspicious <\/p>\n
     circumstances.   All   ingredients   of   dowry   death <\/p>\n
     punishable under Section 304-B I.P.Code are fully <\/p>\n
     established   beyond   doubt.   The   number   of   dowry <\/p>\n
     deaths and deaths of newly married girls are not <\/p>\n
     reducing  in spite  of  stringent  provisions  of  law <\/p>\n
     and, therefore, this is a case requiring deterent <\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 15:41:36 :::<\/span>
\n                                   21<\/span><\/p>\n
     punishment.\n<\/p>\n
     15.       Hence,   Appeal   stands   dismissed   and   the <\/p>\n
     order   of   conviction   and   sentence   passed   by   the <\/p>\n
     learned   Additional   Sessions   Judge-2,   Aurangabad, <\/p>\n
     in   Sessions   Case   No.   154   of   2008   decided   on <\/p>\n
     19.3.2009, is hereby confirmed.\n<\/p>\n
     pnd\/criapl-344.09                             (P.R.BORKAR, J.)<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 15:41:36 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-235989","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nGanesh vs The State Of Maharashtra on 9 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ganesh-vs-the-state-of-maharashtra-on-9-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ganesh vs The State Of Maharashtra on 9 March, 2010 - 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