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2008 DIGILAW 181 (CAL)

Muktabai Gajanan Gawhane v. State of Maharashtra

2008-02-12

A.B.CHAUDHARI, A.P.LAVANDE

body2008
Judgment :- (1.) BEING aggrieved by the judgment and order dated 25.11.1996 passed by the Additional Sessions Judge, Washim, in S. T. No. 8 of 1995, convicting the appellant for the offences punishable under sections 302 and 201 of indian Penal Code and sentencing her to undergo imprisonment for life, the appellant has preferred this appeal. (2.) IT is the case of the prosecution that complainant Gajanan was earlier married to one Kalawatibai in the year 1990 from whom deceased Laxmi, aged about 3 years, was born. Due to dispute between Gajanan and Kalawatibai, divorce took place between them somewhere in the year 1993 but the daughter Laxmi remained with Gajanan. Gajanan then married the accused who started residing with him, his mother-Duraupadabai and Laxmi. Laxmi being the step-daughter was not liked by the accused. (3.) THE incident is of 27.7.1994. At about 7-00 a. m. when Duraupadabai was shouting, Gajanan woke up and saw that Laxmi was in the lap of his mother and was vomiting substance like milk. Duraupadabai therefore took Laxmi to the house of baliram- the brother of Gajanan and then he and Baliram took her to Washim to Dr. Baheti who examined her and opined that it was a case of poisoning. While the treatment was going on, Laxmi died. (4.) THEREAFTER Duraupadabai informed gajanan that Laxmi had informed her that the accused had given her milk. He, therefore, enquired from the accused who ultimately confessed to have given poison in the milk to Laxmi. He therefore lodged report (Ex. 24) on 29. 7. 1994 with Police Station Washim. Dr. Baheti also lodged a report with the police he having suspected the case of poisoning and lodged another report after the death of Laxmi. After preparing the spot panchanama etc. her dead body was referred for conducting postmortem. Dr. Ingley who performed autopsy, opined that the cause of death was due to asphyxia. Viscera was preserved. After completion of investigation charge-sheet was filed. (5.) THE trial was held. After appreciating the evidence tendered before the trial Court and the submissions made by the Counsel for the parties, the learned trial Judge held the appellant guilty and sentenced her as stated above. (6.) MR. Viscera was preserved. After completion of investigation charge-sheet was filed. (5.) THE trial was held. After appreciating the evidence tendered before the trial Court and the submissions made by the Counsel for the parties, the learned trial Judge held the appellant guilty and sentenced her as stated above. (6.) MR. Rupnarayan, learned Counsel for the appellant, argued that the prosecution case is not based on any direct evidence and the prosecution has not completed the chain of events/circumstances so as to arrive at a conclusion that it is the appellant and none else who has committed the offence. He then argued that taking the evidence of Ramrao (P. W. 1) as it is, the prosecution could not further its case beyond the narration that the accused had given milk to Laxmi. He then argued that it is the case of the prosecution that the appellant and her husband Gajanan do not have any agricultural land nor there is any evidence to show that any poisonous substance or insecticide was kept in the house. On the contrary, what is said to have been found in chemical analysers report is absolute alcohol or ethyl alcohol. Absolute alcohol is not used by any farmer or agricultural labourer for any purpose whatsoever. He then argued that there is no investigation whatsoever as to how the appellant came in possession of poison nor there is any seizure of container of poison. The evidence, according to him, is thus incomplete and, at the most, the appellant can be looked upon as a suspect and cannot be convicted merely on suspicion and the benefit of doubt must go to her. (7.) PER contra, Mr. A.G. Mujumdar, a. P.P. , opposing the submissions made by learned Counsel for the appellant, argued that Ramrao (P.W. 1) is the immediate neighbour. On the date of incident, in the morning, when he was repairing the cycle of Maroti Gaikwad in his house, he heard the shouts of Duraupadaba and went to her house to see what had happened, so also Maroti. When this witness reached there, he found that Laxmi was held by duraupadabai and she was vomitting. Duraupadabai then asked Laxmi why she was vomitting and she told that she was given milk by the appellant. According to mr. Mujumdar, Ramrao (P. W. 1) being the immediate neighbour, his evidence is natural and cannot be disbelieved. When this witness reached there, he found that Laxmi was held by duraupadabai and she was vomitting. Duraupadabai then asked Laxmi why she was vomitting and she told that she was given milk by the appellant. According to mr. Mujumdar, Ramrao (P. W. 1) being the immediate neighbour, his evidence is natural and cannot be disbelieved. The fact that poison was found in her stomach is enough to indicate that Laxmi was given milk by the appellant and poison was ultimately found. According to him, this is enough evidence to hold the appellant guilty. He, therefore, prayed for dismissal of the appeal. (8.) WE have heard the learned Counsel for rival parties at length and have also gone through the original record of the case. At the outset, it has to be mentioned that laxmi died homicidal death is amply proved by the prosecution by leading cogent evidence and, as a matter of fact, there is no serious dispute about the said issue. Hence, we affirm the finding of the trial Court that laxmi died homicidal death. (9.) NOW coming to the crucial aspect regarding author of the crime, we find that the F. I. R. was lodged by Gajanan- the husband of the appellant but he turned hostile and did not support the prosecution at all. Duraupadabai who is said to have asked laxmi as to why she was vomiting and that then she disclosed that she was given milk by the appellant, has also turned hostile and has chosen not to support the prosecution. The only evidence that remains on record, which is required to be carefully scrutinised, is that of Ramrao (P.W. 1). Ramrao is the immediate neighbour and has admitted that Laxmi being the step-daughter was not being looked after by the appellant but the grand mother Duraupadabai was looking after her and also used to feed her. He then deposed that when Laxmi was asked by Duraupada as to what happened, she had informed that she was given milk by the appellant. At this juncture, the nature of poison, possession thereof and investigation about the same will have to be considered. Admittedly the complainant gajanan and the appellant are landless and work as labourers. There is no seizure of any poison/insecticide from the house or nearby house of the accused/appellant. At this juncture, the nature of poison, possession thereof and investigation about the same will have to be considered. Admittedly the complainant gajanan and the appellant are landless and work as labourers. There is no seizure of any poison/insecticide from the house or nearby house of the accused/appellant. There is absolutely no reason for the appellant to possess absolute alcohol with her and it was not at all easy for her to acquire absolute alcohol. In the scientific investigation, the report of chemical analyser shows that the poison that was found in the stomach of the deceased was absolute alcohol, i. e. 100% ethyl alcohol. We must express our anguish that there is absolutely no investigation on this aspect and it is not possible for us to believe that a woman labourer in the village would acquire absolute alcohol for administering the same to her step-daughter. Ordinarily, absolute alcohol is available in big towns for carrying out scientific tests in the laboratories. This aspect of the matter, therefore, assumes great importance since the prosecution itself has thrown its story in a mystery. It is in this back ground that it is not possible for us to believe that the appellant had along with the milk given the said poison, namely ethyl alcohol to Laxmi. We therefore find that even if the evidence of Ramrao (P.W. 1)is accepted in toto, the same would prove that the appellant had given milk to deceased Laxmi. In the above fact situation, we refuse to draw an inference that the appellant had given poison mixed in the milk to deceased Laxmi. The trial Court has not recorded any specific finding as to why it convicted the appellant for the offence under section 201 of Indian Penal Code. Having gone through the entire record, we find that there is absolutely no material to hold that the said charge could be proved. (10) IN our opinion, it was essential for the prosecution to investigate on the aspect indicated above in order to complete the chain of circumstances if it wanted to rely on the said type of circumstantial evidence. We, therefore, do not agree with the trial Court when it held that Laxmi made a dying declaration that she was given poison in the milk by the appellant/accused. We, therefore, do not agree with the trial Court when it held that Laxmi made a dying declaration that she was given poison in the milk by the appellant/accused. It appears that the trial Court had a very strong suspicion about the accused having administered poison through milk to deceased Laxmi, but for the reasons narrated above, we find that there may be strong suspicion against the appellant but suspicion however strong, cannot take the place of proof, and therefore, it is not possible for us to confirm the finding of conviction under sections 302 and 201 of Indian Penal code. Hence the following order. (11.) FOR the above reasons, appeal is allowed. Impugned judgment and order of conviction is set aside. The appellant is acquitted of the charge under sections 302 and 201 of Indian Penal Code. The appellant is on bail and her bail-bond stands cancelled. Appeal allowed.