High Court · 2025
Legal Reasoning
914.Cri.Appeal-515-2003.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCriminal Appeal No. 515 Of 2003The State of MaharashtraThrough Chaklamba Police StationThrough Kasturabai Dattatraya Gaikwad,Age : 40 years, Occu. Household,R/o. Pavlachiwadi, Tq. Georai,Dist. Beed. .. Appellant Versus1.Mahadeo s/o Sahebrao MaskeAge : 32 years, Occu. Agri,R/o. Mategaon, Tq. Georai,Dist. Beed. (Appeal abated against Respondent No.1 as per Order dated 02.07.2010)2.Kamalbai w/o Sahebrao MaskeAge : 50 years, Occu. Household,R/o. as above.3.Sahebrao s/o Manikrao Maske,Age : 58 years, Occu. Agri.,R/o. as above. .. Respondents****** Mr. A.V. Lavte, APP for the Appellant.* Mr. Suhas S. Ghute, Advocate for Respondent Nos. 2 and 3.***** CORAM : SANDIPKUMAR C. MORE AND MEHROZ K. PATHAN, JJ.. Date Of Reserving the Order : 24th September 2025 Date Of Pronouncing the Order : 30th September 2025 FINAL ORDER (Per Mehroz K. Pathan, J.) :1.The Appellant/State has filed the present appeal, therebychallenging the judgment passed by the learned 2nd AdditionalSessions Judge, Beed in Sessions Case No.2/1999 dated 21.03.2003,[1] 914.Cri.Appeal-515-2003.odtwhereby the Respondent Nos. 1 to 3 are acquitted for the offencespunishable under Sections 302 read with 34 of the Indian Penal Code. 2.The learned APP submits that the prosecution has examined inall eight witnesses in support of their case and has relied upon latestdocuments to prove the guilt of the accused in committing the crimecausing homicidal death of the wife of the Appellant No.1,Changunabai who has died in mysterious circumstances. 3.The prosecution has relied upon the testimony of thePW-1/Nanasaheb Shinde who has acted as a panch for conducting thespot panchnama. The prosecution has further relied upon the primewitness – Yamunabai Kamble who is the real sister of the deceasedChagunabai and had reached the spot of the incident i.e. thematrimonial home of the deceased and the accused no.1 immediatelyafter the incident. The prosecution has relied all these witnesses toprove the cruelty and harassment meted out by all the Respondentson account of demand of dowry amount of Rs.20,000/- forconstruction of the house. 4.The prosecution has further relied upon the testimony of PW-4/Kasturabai who is the mother of the deceased to prove the guilt ofthe accused, not only under Section 498A, but also under Section 302as the deceased has died an unnatural death while in custody of theRespondents/accused persons. 5.The prosecution has also relied upon witness no.5 who is thepanch on memorandum given by the accused no.1/Mahadev who had[2] 914.Cri.Appeal-515-2003.odtdiscovered the weapon-wooden stick, by which he has committed thecrime of assaulting the deceased which has led to her death. 6.The prosecution has also examined PW-6/Dr. Kashikar who haddeposed about the injury sustained by the deceased, which has led toher death. 7.The prosecution has lastly relied upon the testimony ofPW-7/Gawde, who is the Investigating Officer in Crime No.69/1997from 25.06.1997 to 09.12.1997 and has registered the offence andconducted the investigation. The witness no.8/PW No.8 is relied uponby the prosecution only to prove the seizure of the clothes of thevictim and the memorandum under Section 27 of the Evidence Act ofthe accused wherein he has led to the discovery of the weapon in thecrime i.e. wooden stick. 8.The learned trial Court has considered the evidence led by theprosecution and also the defense of the accused and after goingthrough the entire record, was pleased to acquit the Respondents forthe offence punishable under Section 498A as well as under Section302 read with 34 of IPC. The learned APP therefore submits that thereis enough evidence established on record by the prosecution so as toconvict the Appellants for committing the murder of deceasedChagunabai. It is submitted that the unnatural death of Chagunabai atthe matrimonial home, coupled with the injury sustained by thedeceased as is reflected in the postmortem report and the evidence ofthe Dr. Kashekar being established, the findings arrived at by thelearned trial Court are perverse and therefore calls for aninterference. [3]
Legal Reasoning
914.Cri.Appeal-515-2003.odt9.The Counsel for the Respondents on the other hand, submitsthat the Respondent No.1 has expired during pendency of the appealand the Respondent Nos. 2 and 3 have been rightly acquitted for theoffences punishable under Sections 498-A and Section 302 read with34 of IPC, as the prosecution has grossly failed to establish thecircumstances which would unerringly point out towards the guilt ofthe accused, much-less the accused nos. 2 and 3. 10.We have considered the submissions made by the learned APPand also submissions of the learned Counsel Mr. Ghute appearing forRespondent Nos. 2 and 3. The appeal as against the Respondent No.1,stands abated in view of death of Respondent No.1/Mahadev Maske.11.After going through the evidence led by the prosecution andalso the documents relied upon by the prosecution, we are of the viewthat testimony of PW-2 who was the prime witness being the realsister of the deceased, creates serious doubt about the prosecutiontheory that the Respondents are guilty of committing murder ofdeceased Chagunabai. The incident has occurred on 03.08.1997 andthe accidental death report was registered on 03.08.1997 underSection 174 Cr.P.C. which is Exhibit-43. The same day the inquestpanchnama was also conducted on 03.08.1997 which is at Exhibit-41.The postmortem was also conducted on the next day i.e. 04.08.1997which is Exhibit-37. The Investigating Officer had recorded thestatement of PW-2/Yamunabai who was the real sister of thedeceased on 04.08.1997. However the real sister Yamunabai has notraised any suspicion of the death of the deceased, caused by theRespondents herein. The portion marks A, B, C and D was put to the[4] 914.Cri.Appeal-515-2003.odtPW-2/Yamunabai which she has denied to have stated to theInvestigating Officer. The Investigating Officer in his deposition hasclearly stated that the portion marks A, B, C and D was recorded as perthe say of the witness/Yamunabai. The portion marks A to E is perusedby us from the statement dated 04.08.1997 recorded by theInvestigating Officer, which shows that the deceased had fallen downand fell unconscious and thereafter died. Thus the testimony of PW-2/Yamunabai demolishes the entire prosecution case that thedeceased/Chagunabai suffered a homicidal death.12.The said portions A to F are proved from the evidence ofPW-7/Gawde wherein he has admitted that the said portion markswere written as per the say of PW-2/Yamunabai. The reading of theportion marks A to F would show that deceased Chagunabai had notrouble in the married life and was treated well by her in-laws.Moreover the cross-examination of the said witness reveals that shedid not inform her parents about the homicidal death of the deceasedor that the death had occurred due to cruelty committed upon thedeceased by the accused persons. She also admitted that she did notreport the incident to the police about homicidal death of Chagunabai.Thus the testimony of PW-4 is rightly disbelieved by the trial Court. 13.The next witness relied upon by the prosecution is PW-4/Kasturabai mother of deceased. We have perused the deposition ofPW-4 who have admitted that after four days of death of Chagunabai,she was informed that Chagunabai is killed. She thereafter metYamunabai at Shekta and the son-in-law and after making complaint tothe S.P. Office, the offence was registered at Chaklamba police[5] 914.Cri.Appeal-515-2003.odtstation. PW-4/Kasturabai had stated in her complaint that the demandwas made only one month back to the incident and that her daughterwas treated well for two years and thereafter the ill-treatments werestarted. Whereas in complaint Exhibit-30, it reveals thataccused/persons had treated the deceased Chagunabai well for fouryears and only two years back, the ill-treatments started. The oralversion of the witness/Kasturabai therefore did not inspire confidenceand is an improvement before the Court, which is considered by thelearned trial Court. The demand as appeared from the complaint isonly made in the last month prior to the death of deceasedChagunabai and that too for the construction of the house, howeverthere is nothing on record there was any occasion for them to meetthe deceased Chagunabai. The oral testimony of PW-2/Yamunabai inwhich she stated that she visited the house of accused no.1 fifteendays prior to the incident, whereas PW-4/Kasturabai deposed thataccused no.1 had come to her house fifteen days prior to the incident.Therefore there was apparent inconsistency in the visit of accusedno.1 to the house of mother of the deceased Chagunabai, which iscontrary to the deposition of PW-2/Yamunabai who states that shevisited the house of accused no.1 fifteen prior to the incident. Thelearned trial Court had therefore considered that there is not enoughevidence to prove cruelty exercised upon the deceased by the accusedpersons. There is no complaint also on record about the crueltycommitted by the accused persons against deceased Chagunabai. Thelearned trial Court has therefore disbelieved witnesses on the point ofcruelty and had acquitted the Respondents of the offence underSection 498A. The view taken by the learned trial Court is a possibleview which does not call for interference by this Court in the appealagainst acquittal for the charge under Section 498A. [6] 914.Cri.Appeal-515-2003.odt14.Insofar as the homicidal death of the deceased is concerned, thetestimony of PW-2 and the portion marks A to F, clearly point outtowards the inconsistency in the prosecution case. ThePW-2/Yamunabai had an occasion to immediately report the incidentof committing murder of deceased Chagunabai raising suspicionagainst the accused persons. However the statement recorded by theInvestigating Officer on 04.08.1997 of PW-2/Yamunabai, particularlyportion marks A to F, clearly states that the deceased was treated wellby the accused persons and that Chagunabai had fell unconsciousafter falling down due to giddiness, as she was pregnant. The nextwitness examined by the prosecution is Dr. Kashikar to prove thehomicidal death. However in the cross-examination of the said witnessPW-6/Dr. Kashikar, Doctor admitted that abrasion could appear if thebody comes in contact with rough and hard surface. Insofar as theinjury over right thigh and anterior region of thigh, swelling on fore-head, bruse on occipital area and haemorrhage under surface of scalpis concerned, the Doctor has admitted in the cross-examination thatinjury no.2 on left fore-head was not a bleeding injury whereascorresponding injury nos. 3 and 4, there is no fracture of skull and theinjury nos. 3 and 4 are possible if a person falls on the ground of stone.The said witness PW-6/Dr. Kashikar has further admitted that injurynos. 3 and 4 are not cerebral injuries but are an outcome of concussionwhich can be caused due to great jerk. Moreover, Dr. Kashikar had alsoadmitted that if alive man is beaten by stick than swelling is causedand mark appears on the body. Thus the testimony of PW-6/Dr.Kashikar does not conclusively prove that the death of deceased washomicidal and creates a suspicion. The learned trial Court hastherefore rightly considered the said fact that the deceased washaving a pregnancy of five months and fetus of 24 cm., is found dead[7] 914.Cri.Appeal-515-2003.odtin the womb. The giddiness in a pregnant woman is normalphenomena and hence the injuries could have been caused due tofalling of the deceased on the stone ground. The accidental fall anddeath of deceased Chagunabai therefore, cannot be ruled out. Thus inthe backdrop of the above evidence led by the prosecution and thecross-examination of the witnesses, the evidence does not inspireconfidence about the homicidal death of the deceased. The learnedtrial Court has therefore rightly considered the above fact which callsfor no interference of this Court. 15.Insofar as the recovery of the wooden stick is concerned, PW-5/Dadarao is examined by the prosecution. The learned trial Court hasspecifically observed the demeanor of the witness PW-5/Dadarao,who has failed to identify the accused no.1 present in the Court. Hewas unable to point out the person who gave statement i.e.memorandum before him, despite repeated questions were asked tohim. He had further admitted in his cross-examination that four to fivepersons were talking with the police and that he did not hear as towhat they told to the police who was writing the memorandum. Thesaid witness had further shown his disability to show the location ofKotha from where the stick (danda), Article No.4 was seized. 16.The another witness PW-8/Shaikh Gani was examined to provethe memorandum under Section 27 of accused no.1/Mahadev. Thesaid witness PW-8/Shaikh Gani in his cross-examination had admittedthat when he reached police station, everything was written by thepolice and the police had come to his hotel and took him to Mategaonand after returning from Mategaon, his thumb impressions were[8] 914.Cri.Appeal-515-2003.odtobtained in police station at Chaklamba. The said witness PW-8/ShaikhGani have not specifically stated that present accused no.1 disclosedabout the incriminating article stick. Thus both the panchas PW-5 andPW-8 on the memorandum under Section 27, was found to bedoubtful and as such disbelieved by the learned trial Court. In additionto the same, the learned trial Court has also taken into considerationthe fact that the injuries sustained by the deceased, could not beconnected to the weapon i.e. stick discovered at the instance of theaccused. The postmortem report did not show other injuries on thebody of the deceased. The injuries under surface to the skull is notcerebral and thus no conclusion can be drawn that the death is resultof beating by stick. 17.The scope of interference by an appellate Court for reversingthe judgment of acquittal recorded by the trial Court in favour of theaccused has to be exercised within the four corners of the followingprinciples :“(a) That the judgment of acquittal suffers from patent perversity; (b) That the same is based on a misreading/omission to consider material evidence on record; (c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.”18.The learned trial Court has therefore, come to the conclusionthat the prosecution has grossly failed to establish the homicidaldeath of the deceased and also failed to establish that accusedpersons were responsible for causing the homicidal death of thedeceased with common intention. The view taken by the learned trialCourt is therefore a possible view which does not call for any[9] 914.Cri.Appeal-515-2003.odtinterference in the appeal against acquittal. The Criminal Appealagainst acquittal is therefore dismissed. [MEHROZ K. PATHAN] [SANDIPKUMAR C. MORE] JUDGE JUDGENAJEEB..[10]