J U D G E M E N T (Per Bilal Nazki, J.) : By the Judgment passed by the learned Additional Sessions Judge, Mumbai, in Sessions Case No. 334 of 1991 on 19th December, 2002, the appellants have been convicted under Section 498A read with 34 of the Indian Penal Code and sentenced to suffer R.I. of 3 years and the fine of Rs.1,000/each. In default they have to under go simple imprisonment for 1 month. Accused Nos.1 and 2 are also held guilty of offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to life imprisonment. Accused No.3 was acquitted of charges under Section 302 read with Section 34 of the Indian Penal Code. The Accused are also held guilty for the offence charged under Section 304B read with Section 34 of the Indian Penal Code and they have been sentenced to R.I. for 7 years. They are also fined Rs.3,000/each and in default they have to undergo simple imprisonment for 3 months. 2. The facts on which the charges under Sections 302, 498A and 304B read with Section 34 of the Indian Penal Code were framed, were that one Ramagauri was married to accused No.1 in or about the year 1984. She was constantly illtreated by all the accused persons. She had two children. Accused No.1 is the husband of the deceased. Accused No.2 is the brother of accused No.1 and accused No.3 is the mother of accused Nos.1 and 2. The prosecution contended that accused No.1 shifted to Kumbharwada in a separate residence. But accused Nos.2 and 3 used to go to that place also and quarrel with the deceased. Thereafter, accused No.1 left his wife at the house of her parent at Rajkot. She lived there for some time then accused No.1 brought her back and they started living in a room adjacent to the embroidery factory of the accused. On 21st May, 1990, accused No.1 went to the Police Station concerned and reported the death of his wife by consumption of poison. Statement of brother of the deceased was recorded on the same day. Inquest panchanama was drawn. Accused No.1 also gave a bottle of poison in the presence of panchas. Accused is alleged to have said that Ramagauri drank poison from the said bottle. Investigation started and FIR was registered. Autopsy was done. Statement of brother of the deceased was recorded on the same day. Inquest panchanama was drawn. Accused No.1 also gave a bottle of poison in the presence of panchas. Accused is alleged to have said that Ramagauri drank poison from the said bottle. Investigation started and FIR was registered. Autopsy was done. Evidence was completed and on completion of investigation the charge sheet was filed. On the basis of these allegations the charges were framed as mentioned hereinabove. The accused pleaded not guilty and claimed to be tried. 3. The prosecution examined 9 witnesses. There is no eye witness and the prosecution tried to establish the case on the basis of circumstantial evidence. Learned Counsel for the appellants submits that at the best it has been a case of suicide and neither it was a case of murder nor it was a case of dowry death. 4. PW 1 – Smt. Jayaben Maganlal Parmar, is the mother of the deceased. She stated that her husband was dead. She had 3 sons and 3 daughters. Her daughter Ramagauri (deceased) was married with Vijay (accused No.1). The marriage had taken place at Rajkot and the deceased had come to stay with her husband, accused No.1. She identified all the accused and stated that her daughter (deceased) was staying with all the accused in Mumbai. They had also given dowry as per custom. All the accused were harassing deceased. Accused were telling her that nothing had been given to them in the marriage. Fatherinlaw of the deceased was a good person. Till he was alive, the accused did not harass the deceased. But after his death all the accused started harassing the deceased. Ramagauri was married 17 years back from the date she deposed in the Court (23rd October, 2001). Fatherinlaw of the deceased had died in the year 1987. She further stated that Ramagauri’s motherinlaw and brotherinlaw were beating her. Her brotherinlaw had caught hold of her neck and a police complaint was lodged to that effect. Vijay, her husband had left her in the house of the witness at Rajkot. Deceased had stayed in the house of witness for 2 months. Her 2 sons were staying in Mumbai and deceased used to tell them every thing about the affairs of her family. Deceased had told them that accused were harassing her. Deceased was ready to come to Mumbai. Deceased had stayed in the house of witness for 2 months. Her 2 sons were staying in Mumbai and deceased used to tell them every thing about the affairs of her family. Deceased had told them that accused were harassing her. Deceased was ready to come to Mumbai. She had given her train fare of Rs.800/to Rs.900/for coming to Mumbai. However, she did not use to tell her many things. She further stated that deceased was murdered by the accused. Her 2 sons who were in Mumbai had informed her about it. Ramagauri’s daughter was 2½ years old and her son was 3 years old at the time of her death. She had come to Mumbai after receiving message of death of Ramagauri. The witness had come to Mumbai 11 years back, at the time of Ramagauri’s death. She did not remember whether the Police recorded her statement. In crossexamination, she stated that accused had not demanded any dowry at the time of marriage. However, what was required to be given in the marriage as per customs was given. She accepted that Ramagauri was her stepdaughter. Kantibhai and Hansa were Ramagauri’s real brother and sister respectively. The deceased had come to her house but she could not say how many times. She stated that it was true that after the death of fatherinlaw of the deceased, deceased and her husband were staying separately. She did not know whether the deceased had sent any letter to them informing about demand of dowry by the accused. Her son Kantibhai had lodged police complaint about harassment to the deceased by the accused. She denied that the deceased was not in talking terms with the witness. She did not also know the reason why accused No.1 had left the deceased at her house. She admitted that the daughter of the deceased was staying with the deceased when she was with the witness at Rajkot and their son was staying with accused No.1. She denied that accused No.1 had informed her that Ramagauri had fallen in love with other boy and that the witness should persuade her not to do so. She did not know whether it had appeared in the newspaper that Ramagauri had committed suicide. She denied that accused No.1 had sent her telegram informing her about Ramagauri’s death. She had received telegram from her son. She did not know whether it had appeared in the newspaper that Ramagauri had committed suicide. She denied that accused No.1 had sent her telegram informing her about Ramagauri’s death. She had received telegram from her son. She denied that she had not come for last rites of Ramagauri. She also denied that she came only to Mumbai when she was called by the Police. She had seen the dead body of Ramagauri, her fist were clenched. The police had recorded the statement of the husband of the witness. Her statement might have been recorded by the Police but she did not remember. 5. Learned Counsel for the appellants has pointed out that this witness was categoric in saying that the accused had not made any demand for dowry at the time of marriage but whatever had given was given as per the customs. Learned Counsel for the appellants further pointed out that this witness has also in her statement stated that at the time of occurrence accused No.1 and the deceased were staying separately. She has also admitted, according to the learned Counsel, that she had no personal knowledge of any harassment on account of dowry after the marriage. 6. PW 2 – Kantilal Maganlal Parmar, is the brother of the deceased and son of PW 1. He stated that the incident took place on 21st May, 1990 and it was a Monday. After their marriage, the deceased started staying in her marital house along with all the accused i.e. her husband, her brotherinlaw, her motherinlaw, and 4 unmarried sisters. Accused No.2 was brother of accused No.1 and accused No.3 was motherinlaw of the deceased and mother of accused Nos.1 and 2. Initially the deceased was staying at Bhuleswar. After her marriage for 6 months to one year everything was well with Ramagauri. Thereafter the accused and her sistersinlaw started beating her and were quarrelling with her. Her fatherinlaw used to intervene in their quarrels and make them quiet. On almost alternate days they used to quarrel and they used to tell her that they had spent Rs.50,000/on the marriage. He stated that whatever he said about the harassment to the deceased was told to him by the deceased. Ramagauri had two children, one son and one daughter. Ramagauri had also told him that her family members were harassing her daily and hence she had beaten her daughter. He stated that whatever he said about the harassment to the deceased was told to him by the deceased. Ramagauri had two children, one son and one daughter. Ramagauri had also told him that her family members were harassing her daily and hence she had beaten her daughter. There was quarrel between Ramagauri and her motherinlaw and hence she had beaten children. Thereafter, her brotherinlaw, accused No.2 had slapped her in presence of her husband but her husband had not intervened and he was a silent spectator. Geetaben Chauhan, who is witness’s wife’s sister was staying near the house of the accused. She sent a message to him at Borivali about the said incident. On the next day he went to the house of the accused and asked Ramagauri as to what had happened. She said that there was forcible quarrel and she had beaten her children and her brotherinlaw had slapped her. The witness asked brotherinlaw as to what right he had to slap the deceased. He also asked accused No.1 as to why he was not able to manage his household affairs. He persuaded his sister to forget about the quarrels. He also advised Ramagauri not to reply to her motherinlaw anytime and if there were quarrels she should tell her husband about it and if they do not do anything she should come to him and tell him about the matter. In the year 1987, fatherinlaw of the deceased died and the incident about which he deposed had happened after the death of the fatherinlaw of the deceased. Thereafter, no big quarrel took place. Deceased came to his house. She told him that she was being harassed. But witness told her to go to her marital house telling her that he would come to her house. He called some of his relatives as also the relatives of the accused in the house of the accused. Relatives of both sides persuaded all the family members that they should not quarrel and all the family members gave an assurance that there will not be any quarrel in future. Thereafter, her husband took separate room in Kumbharwada, 4th Lane and started staying with his wife and children. But accused Nos.2 and 3 went there also and quarreled with the deceased. Deceased’s brotherinlaw attempted to kill her by pressing her throat and by beating her. Thereafter, her husband took separate room in Kumbharwada, 4th Lane and started staying with his wife and children. But accused Nos.2 and 3 went there also and quarreled with the deceased. Deceased’s brotherinlaw attempted to kill her by pressing her throat and by beating her. He came to know about the incident from his relative by name Prabhudas. He also informed him that in order to save herself, Ramagauri had left the house and had gone to V.P. Road Police Station and lodged the complaint. One Hasmukh, brother of Prabhudas, who is relative of both sides had persuaded Ramagauri to take back the complaint saying that it was not good for the well being of their house and community. Due to this incident, accused No.1 left deceased in their parents house at native place. He came to know about it from Prabhudas. Then he sent a letter to his father. But before his father received his letter, Ramagauri came to Mumbai after staying for 1 to 1 ½ months there. Thereafter, the deceased and her husband started staying at Dadyseth Agyari Lane, where there was a factory of the accused. On 21st May, 1990 at about 4.30 or 5 a.m. sister of the accused staying at Dahisar came to his house and informed him that Ramagauri was dead. He called his relatives from Borivali. He came to Kumbharwada along with his relatives. Took some relatives of Kumbharwada and went to the separate house of his sister situated in the factory. He saw dead body of his sister. He found there were marks of piercing the nails on both sides of her chick and throat and also the marks of injuries on both her wrists and marks of bangle glasses in both her wrists. Motherinlaw and sisterinlaw of the deceased were in the house. Neither her husband nor her brotherinlaw were present in the house. He made inquiries about both of them and learnt that they had gone to L. T. Marg Police Station. He went to L. T. Marg Police Station and found that both of them were not present at the Police Station. He was told that the Police Officer had gone to their house along with Vijay. He returned back to the house of the accused and there he found the Police Officer making panchanama. He went to L. T. Marg Police Station and found that both of them were not present at the Police Station. He was told that the Police Officer had gone to their house along with Vijay. He returned back to the house of the accused and there he found the Police Officer making panchanama. When the body of the deceased was turned he found that there were marks of injury on her back. After seeing all the injuries, he felt that his sister had not committed suicide but she had been killed by the accused. Despite objections of the Police Officer, he took the photographs of the dead body of his sister. He made call to his parents. On the next day parents came to Mumbai. Police recorded his statement in the Police Station on 21st May, 1990. He had taken his parents to J. J. Hospital to show the dead body. Thereafter, he took them to Police Station on 23rd May, 1990. His parents were not ready to lodge complaint as they were staying at the native place and they did not know the language other than Gujarati and they advised the witness to take all the responsibility of the accused. Police recorded statement of his parents. After the post mortem, body was claimed and last rites were performed. Accused had not informed him about the death of his sister immediately. His sister had died in the afternoon on 20th May, 1990. At about 10.00 to 11.00 p.m., Pankaj, brotherinlaw of the deceased went to the house of a relative by name Bharatkumar Kanjibhai Parmar and informed him about the death of his sister. Bharatkumar went to the house of the accused and saw the body of his sister. He was told by the family that 3 persons were sent in a taxi to give him message. Bharatkumar was waiting for the witness in his house. Again at 5.00 a.m. Pankaj went to the house of Bharatkumar and told him that the body was taken up for funeral. His relations objected and said that until her brother i.e. witness do not come, they would not allow the dead body to be taken for the funeral. Due to this conduct of the accused, he was of the view that his sister, Ramagauri was killed by the accused. His relations objected and said that until her brother i.e. witness do not come, they would not allow the dead body to be taken for the funeral. Due to this conduct of the accused, he was of the view that his sister, Ramagauri was killed by the accused. The accused had not taken his sister to any doctor nor given any treatment, nor informed the police about the incident and had managed to manipulate the incident by paying money to the police. 7. In crossexamination he stated that in the year 1990 he was working in Embroidery Shop. Now he was running a club near his house. He denied that in his club gambling or any illlegal drinking takes place. He also denied that the Police used to frequently arrest him. He denied that on 20th May, 1990 he was not at his home and he returned to his home only on 21st May, 1990 in the morning. He did not remember the name of the sister of the accused, who had come to his house on 21st morning to inform about the death of his sister. His police statement was read over to him after it was recorded. The Police wrote part of his statement correctly and whatever he told to the police it was not written in the statement entirely. However, what was recorded was actually told by him to the Police. He did not file any complaint against the concerned police officer for not recording his statement as per narration. He admitted that when he reached the house of the deceased at 6.30 to 7.00 a.m. there was a crowd in the house as many relatives had already come. He denied that the persons present there had informed him that the deceased had committed suicide. On the contrary the persons gathered there were saying that the deceased had been killed by her inlaws and her husband. There is no question of committing suicide by his sister as was evident from the marks of injury on her person. He had not said to the police that his sister had committed suicide. However, he can not give any reason as to why this was not recorded in his police statement. He denied having said so to the police. He had also stated to the police that the deceased had sustained bangle piece piercing injuries on both her wrists. He had not said to the police that his sister had committed suicide. However, he can not give any reason as to why this was not recorded in his police statement. He denied having said so to the police. He had also stated to the police that the deceased had sustained bangle piece piercing injuries on both her wrists. He could not assign any reason why it was not recorded by the police. Police had also told him to bring witness to make the case strong. He had also asked the neighbours, whether they had seen the incident, but he felt that it was not his job. He did not tell the police that Bharatkumar Parmar was a witness and his statement should be recorded. After his statement was recorded, he came to know from Bharatkumar, whatever he had told him about the happenings after the death of his sister and hence he could not tell his name to the police. He had gone to the police station 2/3 times after his statement was recorded. He had gone to the police station with his parents. At that time he did not tell the police to record the statement of Bharatkumar. He denied the suggestion that his evidence regarding his conversation with Bharatkumar was false. He denied that during lifetime of his sister's fatherinlaw there was no quarrels. There used to be quarrels, but fatherinlaw used to intervene and stop them. However, he accepted that till the fatherinlaw of the deceased was alive, his sister did not use to call him often. It is accepted by him that after the death of fatherinlaw of the deceased, his sister and her husband went to stay at Kumbharwada. He used to go to the house of his sister and she also used to come to his house with her husband. He also accepted that her husband used to talk to him very nicely. He denied that he had taken loan of Rs.10,000/from accused No.1. He was shown a piece of paper. He accepted that the paper was in the hand writing of the witness. It was in Gujarati script and read as, “I had taken Rs.10,000/from Vijay”. The said paper also bears his signature. It was taken on record and marked Exhibit “A”. He had a vacant hut at Borivali, Carter Road No.5, Near High Way. He accepted that the paper was in the hand writing of the witness. It was in Gujarati script and read as, “I had taken Rs.10,000/from Vijay”. The said paper also bears his signature. It was taken on record and marked Exhibit “A”. He had a vacant hut at Borivali, Carter Road No.5, Near High Way. It was vacant and he had sold it to accused No.1 so that he could use it for his separate stay with the deceased instead of taking any other room on rent. He had told the accused to give money as he think proper for using the hut. Therefore, accused No.1 had given him Rs.10,000/after locking the hut and taking in writing from him about receiving of the money. He had no documentary evidence to show that the hut was in his name. It was a kachha hut with iron sheets. He had renovated it by spending Rs.7,000/to Rs.8,000/on it. His sister and her husband used to go there once in 10 to 15 days and used to go back. It was not correct to suggest that the evidence was false. It was not correct to suggest that he had taken loan from accused No.1 and therefore he had given receipt in writing. It was true that accused had an embroidery business place at Dadysheth Agyari Lane at Chira Bazar. Daughter of his sister was 2 & ½ years old at the time of occurrence. He did not state before the police that his sister had told him that there was quarrel between her and her motherinlaw and she had beaten the children. He did not state before the police that in the year 1988 the deceased had assaulted her daughter and hence her family members had quarrel with her and at that time Pankaj had slapped her. He could not give any reason as to why it was not recorded by the police in his statement. He denied that such an incident had never occurred. There are further omissions which are pointed out in the cross examination and the reasons given by the witness is that he did not know why police had not recorded such thing in his statement. He did not himself record any complaint any time during the lifetime of her sister against her husband. There are further omissions which are pointed out in the cross examination and the reasons given by the witness is that he did not know why police had not recorded such thing in his statement. He did not himself record any complaint any time during the lifetime of her sister against her husband. He did not know whether police had called his sister in V. P. Road Police Station and warned her to behave properly. Accused No.1 had left the deceased at native place due to the quarrels. He came to know about it from Prabhudas. He was not told by anybody that some affair was going on between the deceased and her neighbour and therefore her husband had left her to the native place of his parents. He did not know whether for this reason the police had called her to the police station and had warned her to behave properly. He did not know the handwriting of the deceased. His sister did not contact him and did not write him any letter when she stayed with parents at native place. He accepted that PW 1 was his stepmother. He did not know if the relations between the deceased and PW 1 were not cordial. If he is shown one letter and asked whether it was written by his sister, he could not identify her handwriting, because he did not stay at the native place more and he came to Mumbai when he was 10 years old. He said that it was true that before the marriage of the deceased, he was not that close to her. However, he stated that it was not correct to suggest that after her marriage she did not use to go to his house. She used to come to his house on festival days and whenever the witness used to call her. When his sister came back from the native place, Accused had already vacated the separate room and started staying in factory room. He denied a suggestion that there was some affair between his sister and one boy and hence her husband had vacated the room. There might have been a news item in the newspaper that his sister had committed suicide due to love affair. It was true that the police did not believe that his sister was murdered. He denied a suggestion that there was some affair between his sister and one boy and hence her husband had vacated the room. There might have been a news item in the newspaper that his sister had committed suicide due to love affair. It was true that the police did not believe that his sister was murdered. It was true that her parents were not ready to give statement, but it was not correct to suggest that he tutored his parents to give statement as per his wishes. It was true that he had accompanied his parents to the police station. It was not correct to suggest that his whole evidence was false. 8. According to the learned Counsel for the appellants, there are so many omissions in the statement of this witness that it is hard to believe that he had any personal knowledge about the relations between the deceased and accused No.1. This witness, according to the learned Counsel for the appellants, does not appear to be very close to the deceased although he was a brother. He himself admitted that he could not even identify her handwritings. All the informations he got about the occurrence was through one Prabhudas. But admittedly, he did not even mention Prabhudas's name to the police and eventually Prabhudas was not even examined as a witness. 9. PW 3 – Dattakumar Narayan Khambe, living in an adjacent building to the building in which the occurrence took place. He stated that he knew all the accused as the embroidery factory of the accused is in the adjacent building to the building in which he was living. Accused No.1 along with the deceased were staying in the room of their factory. On 21st May, 1990, police called him in the kitchen room of the house of the accused. It was about 6.15 on that day. One other lady was also called by the Police. They were called for panchanama. Police pointed out the dead body of the deceased which was lying in the kitchen. He saw that dead body. He saw the blood was oozing out from her nose and mouth. Her hair were spread loose. He also saw the black spots on one of her cheeks. He did not remember what were the clothes on the person of dead body. Police made panchanama. He saw that dead body. He saw the blood was oozing out from her nose and mouth. Her hair were spread loose. He also saw the black spots on one of her cheeks. He did not remember what were the clothes on the person of dead body. Police made panchanama. In the presence of the witness, husband of the deceased produced one poison bottle and showed that bottle. Panchanama was read over and explained in Hindi and Marathi and thereafter he signed the panchanama. Police did not do anything about the bottle and other things in the presence of the witness. He was shown the panchanama, which bears his signature at two places and was marked as Exhibit No.11. He could identify the seized articles if he see them again. Police produced gunny bags packed and tied with coir string. There are no seals. It was allowed to be opened in the open Court. After opening the said gunny bag, it was marked Art.1. In the gunny bag, 3 big bundles and 4 small bundles were found. By consent, one sealed small bundle was opened. The witness, however, identified the bottle. The said bottle and wrapper were marked Article 2 Colly. Another small bundle was opened, which contained nicker. The said nicker and the wrapper were marked as Art.3 Colly. Another bundle was also opened, which contained maxi. The said maxi and wrapper were marked Article 4 Colly. Another bundle was opened, which contained red petticoat. Petticoat and wrapper were marked Article 5 Colly. Another bundle was opened, which contained plastic sapna mat. The said mat and wrapper were marked Article 6 Colly. One more bundle was opened, which contained pillow. Pillow and wrapper were marked Article 7 Colly. Another bundle was opened containing quilt. The said quilt with wrapper were marked Article 8 colly. In his crossexamination, he stated that it was true that Accused No.1 and the deceased with their small daughter were staying in their factory rooms. He did not know whether their son was staying with their grand20 mother. In two rooms there was embroidery factory and in one separate room the couple was staying. He denied that he came to know about the death of Ramaben on the previous night. He used to return to his house late in night. Hence, he did not know about it. In two rooms there was embroidery factory and in one separate room the couple was staying. He denied that he came to know about the death of Ramaben on the previous night. He used to return to his house late in night. Hence, he did not know about it. He did not remember whether the black spot was a spot of an abrasion. He further stated that it was correct to suggest that redlike fluid was oozing from her nose and mouth. It was true that when he was called, a crowd of people had gathered and surrounded the dead body. 10. PW 4 – Pravinchand Narsibhai Parmar, lived in the same chawl in which the accused and the deceased live. He stated that his house is in the chawl and the chawl is twostoried. He was staying on the last floor. He knew all the accused because they were staying on the ground floor of the chawl in which he was staying. There were 3 rooms out of which in two rooms they had embroidery factory and in one room accused No.1 and his wife were staying. Ramaben is dead. She died on 21st May, 1990. He did not know how she had died. He had woken up at 6.00 a.m. for fetching water. His neighbour Leelaben told him that Ramaben had committed suicide by consuming something and has died. His family members had gone out of Mumbai and he was staying alone in the house at that time. Police made enquiries with him and recorded his statement. He never had talks with Ramaben. In his cross examination, he stated that it was true that accused No.1 and the deceased came to stay in the said chawl about 2 and ½ months prior to the incident. Their daughter was staying with them and son was staying with their grandmother, accused No.3. He did not know whether Ramaben was not looking after her son properly and therefore he was taken by her grandmother. When he was asked the question as to wheather he had heard about Ramaben was of a quarrelsome nature and she was hot tempered and hence he was not talking with her. He replied, he did not know. He said that he had stated before the Police that he had heard that Ramaben was of quarrel some nature and of hot temper. 11. He replied, he did not know. He said that he had stated before the Police that he had heard that Ramaben was of quarrel some nature and of hot temper. 11. PW 5 – Smt. Anjani Vishwanath Vetkar, also staying in the same building in which the accused was staying. She stated that at the time of incident, accused No.1 and his wife was staying on the ground floor of the building in which she is staying. Accused had embroidery factory on the ground floor. She had seen, one day, the wife of accused No.1 was fighting with her motherinlaw outside their door and she had a rolling pin in her hand. The witness pushed her inside their door and went home. She did not know her name. She is not alive. One day in the afternoon, after returning home from her work, her daughter told her that accused No.1's wife was dead. After taking food, she went to see as to what had happened but there was nobody in their house. Police had called the witness to the police station and recorded her statement. She did not know anything about the happenings in the house of Vijay. There were no connections between the family of the witness and the family of the accused. She used to be out of her house for most of her time. She was staying on the first floor and accused No.1 was staying on the ground floor. 12. PW 6 – Dr. Ashok Gangaram Shinde, is a doctor who conducted post mortem of the dead body. He stated that from 1982 he worked as a Medical Officer with various hospitals. His statement was recorded. He stated that till today, he might have conducted about 17,000 post mortems. In the year 1990, he was attached to Police Hospital at Nagpada and working at J. J. Coroner's Court. From December, 1993 to June, 1997 he worked at Police Hospital, Nagpada. A dead body by name Smt. Ramaben Vijay Gohil was brought by Police Constable No. 9200 of L. T. Marg Police Station with A.D. No. 57/90 on 21st May, 1990 at 10.30 a.m. at J. J. Coroner's Court. Her body number was 1458/29. The witness along with Dr. From December, 1993 to June, 1997 he worked at Police Hospital, Nagpada. A dead body by name Smt. Ramaben Vijay Gohil was brought by Police Constable No. 9200 of L. T. Marg Police Station with A.D. No. 57/90 on 21st May, 1990 at 10.30 a.m. at J. J. Coroner's Court. Her body number was 1458/29. The witness along with Dr. Vaze started post mortem on 21st May, 1990 at 1.00 p.m. and completed at 2.10 p.m. Dead body was brought with the history of alleged consumed poisonous drug “Vejafru – DIVAP – 100” on 21st May, 1990. She was well nourished and cold. Rigor Mortis had passed off. There was no sign of decomposition. Her face was congested. Eyes were partially open, subconjuctive petechial haemorrhages seen. Pupils dilated. Tip of tongue caught in between front teeth. Blood stain froth from mouth. He noticed following external injuries : (1)Linear abrasion on tip of nostrils and right and left side nostrils laterally. 0.5 cm., 0.7 cm., x 0.8 cm. respectively. (2)Two linear abrasions on the right cheek 2.0 cm. apart 100 cm. and 0.8 cm. (3)Seven linear abrasion cliptical shape, size 0.5 cm. x to 1.0 cm. on the left cheek left. (4)Linear abrasion angles of mouth on left cheek, 1.0 cm. length. (5)Contusion right upper lip laterally outer part 1.6 cm. x 1.4 cm. (6)Contusion right upper lip inner part laterally and center 2.0 cm. x 1.6 cm. and 1.7 cm. x 1.4 cms. (7)Contusion lower lip left side inner aspect 2.0 cm. x 1.7 cms. (8)Linear abrasion on left angle of mandible 1.0 cms. Length. (9)Linear abrasion on left side neck one cm. below angle of mandible 0.8 cms. (10)Linear abrasion on right side neck below chin and below angle of mandible 1.0 cms. X 0.8 cms. respectively. (11)Linear abrasion on thyroid cartilage front of neck 0.8 cms. length. (12)Linear abrasion on the right supra clavicular fossa near middle line 1.1 cms. length. (13)Contusion on right cheek 1.6 cms. above injury on 2, 4.0 cm. x 3.0 cm. All contusions and linear abrasion are reddish colour and antemortem. All the above injuries were antemortem. On internal examination, the doctor found following : (1)The brain was congested. (2)Sub Pleural petconial haemorrhage was seen. (3)Reddish froth into trachea and bronchi mucosa was congested. (4)Both lungs were Oedematous. (5)Petechial Haemorrhage over pericardium. (6)Right side heart full of dark red fluid blood. All contusions and linear abrasion are reddish colour and antemortem. All the above injuries were antemortem. On internal examination, the doctor found following : (1)The brain was congested. (2)Sub Pleural petconial haemorrhage was seen. (3)Reddish froth into trachea and bronchi mucosa was congested. (4)Both lungs were Oedematous. (5)Petechial Haemorrhage over pericardium. (6)Right side heart full of dark red fluid blood. (7)Contusion of both pharyngeal fossa muscles and also muscles under chin front. (8)There was 100 cc. Yellowish colour slimy fluid, peculiar odur in the stomach. Mucosa was congested. (9)Small and large intestine partly loaded with congestion. All the visceral organs were congested. Bladder was almost empty, intact. Uterus – CopperT Intact. (10)As per history and stomach contents viscera was kept for C.A. Blood was also kept for CA and subsequently sent for C.A. After receiving the viscera report from C.A. the final cause of death found was “death due to violent asphyxia with Organo Phosphorous Poisoning”. He produced the postmortem report, which was in his handwriting and signed by him and Dr. Vaze. Its contents were correct. He identified the signature of Dr. Vaze and marked as Exh.15. He also produced the C. A. report of Viscera and blood, which was marked Exh.16. Generally rigor mortise sets in after two hours in India. In the cold season rigor mortise is delayed and in summer it sets in faster. To develop the rigor mortise generally it takes 12 hours and remains for 12 hours. From the rigor mortise and postmortem lividity and as there was no decomposition, the time of death was 24 to 36 hrs. prior to receiving of the dead body in J. J. Morgue / Coroner's Court. For setting in and passing of the rigor mortise in the case of asphyxial deaths, setting in and passing of the rigor mortise depends upon the force of violence used. In Bombay climate in the month of May, the rigor mortise sets in early and pass off early. He further stated that there were about 13 external injuries around the mouth and neck and there was one internal injury below chin and Pharyngealfosa with subpleural and pericardium Petechial haemorrhages with fluid dark red blood into the right side heart. Both the doctors were of the opinion that it was violent asphyxial death in the form of suffocation by use of hands causing smothering. Both the doctors were of the opinion that it was violent asphyxial death in the form of suffocation by use of hands causing smothering. The witness further stated that the age of all the 13 external injuries was less than 12 hours prior to death. It was vital reaction of living person which leads to colour changes as per duration and therefore he said that injuries were ante26 mortem. In answer to the question, he said that he found total 19 linear abrasions and 5 contusions. He also said that generally linear abrasions are caused by nails and sharp edged tapering weapon. He also said that the seven linear abrasions cliptical shape were possible by nails only. He did not notice any raised nails to the fingers of the deceased and hence there was no possible of self inflicting of the abrasions. He said it depend upon how much nails were raised and how much force has been applied and unless force was used these abrasions were not possible. He stated that external injury Nos.5 and 13 were outside the mouth. Injury Nos.6 and 7 were inside the mouth and on the lip. The contusions are generally caused by the blow by blunt substance. He stated that all 4 contusions were possible by applying hand forcefully for closing the mouth. It was possible that injury No.1 was caused for opening mouth for pouring poison by forcibly closing the nose, nostrils of the nose. All the injuries were consistent with mechanical violence. Internal injury mentioned in col.20 was possible with closure of mouth, for pouring poison in the mouth as well as mechanical violence. Reddish froth from mouth also in trachea, bronchi were present in asphyxial death and poisoning. He stated that setting in and passing off rigor mortise depends upon poison to poison. Environmental condition in the month of May also existing in Postmortem lividity, the rigor mortise passed off in this case and the death may be within 24 hours from our examination. In organic Prosperous Compound poisoning the action starts, half an hour after its injunction and death occurs within 24 hours. The quantity of detected poison was fatal. Injury Nos.1 to 13 were sufficient to cause death in ordinary course of nature coupled with poisoning. In organic Prosperous Compound poisoning the action starts, half an hour after its injunction and death occurs within 24 hours. The quantity of detected poison was fatal. Injury Nos.1 to 13 were sufficient to cause death in ordinary course of nature coupled with poisoning. He also said that signs of asphyxia are present in case of organs phosphorous insecticide / poison in case of suicidal or accidental poisoning. But in this case signs of mechanical violence were also found. Therefore, according to him, it was a case of violent asphyxia death with organs phosphorus poisoning. In his crossexamination, he said that it was correct to suggest that the mode of death alone is unacceptable as a cause of death. He stated that it was correct to suggest the ground in the vicinity should be carefully searched for foot prints of any evidence of struggle. He was not taken to the place of offence by the Investigating Officer. He did not remember whether any relative had accompanied with the dead body. There was a delay of 2 and ½ hours in performing postmortem because second doctor had to be called and continuously the post mortems were going on. It was true that there should not be any unnecessary delay in conducting post mortem after the body is received. The body was naked, although, there was no such mention in the postmortem report. However, it was correct to suggest that in the case of violence, the clothes of the deceased are the important piece of evidence. It was true that nothing was found on the finger nails to suggest the violence. The police had supplied the A.D.R. Form through the Coroner. It was true that the doctors are required to see the Inquest Panchanama and the relevant papers of the case at the instance of Coroner. Coroner may or may not send the Inquest Panchanama. In this case, he had seen panchanama. I had also seen the discrepancies in the Inquest Panchanama and actual injuries on the dead body. They had mentioned these discrepancies in the A.D.R. Form and had called for the Police Officer. He did not agree that it was necessary to mention the discrepancies in the post mortem report. He noticed the following injuries in the Inquest Panchanama. (1)3 Lineal injuries i.e. in injury no.1 shown in the post mortem report i.e. tip of the nose and left nostrils. He did not agree that it was necessary to mention the discrepancies in the post mortem report. He noticed the following injuries in the Inquest Panchanama. (1)3 Lineal injuries i.e. in injury no.1 shown in the post mortem report i.e. tip of the nose and left nostrils. (2)In injury no.3 there are 7 linear abrasions, but in the Inquest Panchanama, there are only 3 linear abrasions. (3)In the inquest panchanama it is mentioned that these injuries were blackish, but according to the doctor, that was the observation of the Police Officer. According to the police, it was a suicidal poisoning and hence they called the police officer and had pointed out that there were more injuries on the dead body than shown in the panchanama and that was done before starting the post mortem. These discrepancies were major and corresponding internal injuries to the external injuries found in the post mortem were noted. It was true that he had not given report in writing about the said discrepancies. In order not to delay the post mortem, they did not give report in writing as it would take lot of time and since the Investigating Officer was available they called him personally. He did not mention the colour of the viscera and it was of normal colour and mucosa was congested. He said that he had mentioned about the yellowish coloured slimy fluid found in the stomach. For examination of any injury on the neck, he desects the dead body from neck, lastly from chin to mandible sternum. It was not correct to suggest that the injury at 20(i) was due to desection of the neck. It was not necessary to take the photographs of the neck as two doctors had conducted the post mortem. There were further examinations on the technical aspect of the post mortem. 13. PW 7, Vijay Laxman Kadam, was on duty as Police Inspector on 23rd May, 1990 and PSI Jadhav had taken charge of the dead body of Smt. Ramaben Vijay Gohil from the house of the deceased at 85, Cross Lane No.2, Room No.1/3, Dadiseth Agyari Lane, Mumbai on 21st May, 1990. Her husband had told to PSI Jadhav that she had died due to consumption of poison. PSI Jadhav had taken charge of the dead body under the Inquest Panchanama and sent it for post mortem. Her husband had told to PSI Jadhav that she had died due to consumption of poison. PSI Jadhav had taken charge of the dead body under the Inquest Panchanama and sent it for post mortem. The relatives were informed about the death of the said lady. On 23rd May, 1990, Maganbhai Ramji Parmar, father of the deceased came to the Police Station from Rajkot. He reported the witness that the girl was killed by her husband, brotherinlaw and motherinlaw and they were harassing her. The witness recorded his F.I.R. and registered the case. He produced the F.I.R. which was signed by him and countersigned in his presence. It was marked Exh.19. The complainant was dead and hence could not be examined. Further investigation was carried out by SI Patil and SI Jadhav. In crossexamination he stated that he had not visited the place of incidence. 14. PW 8, PSI Appasaheb Bhausaheb Jadhav, stated that he was attached to L. T. Marg Police Station as PSI and he was on night duty as Station House Officer in the intervening night of 20th May, 1990 and 21st May, 1990. On 21st May, 1990 at 6.00 a.m. one Vijay Nathalal Gohil came to the police station and reported to him that his wife Ramaben had died due to consumption of poison in their residential house at 85, Kewal Cross Lane No.2, Dadysheth Agyari Lane, Mumbai. He registered the case, made station diary entry and thereafter went to the residence of the said Vijay. He saw dead body and called two witnesses. He made Inquest Panchanama of the dead body. He saw scratching marks on both the chicks, chin and on the nose of the dead body. Her face was swollen. Her back portion had became bluish/ blackish. He found one bottle near the dead body. After perusal of the panchanama, he again said that the husband of the deceased had produced one empty plastic bottle of vejafru poison containing the layer of medicine. On the dead body there were red coloured designed nighty and red coloured petticoat and pink coloured jangya. Articles 3,4 and 5 were the said clothes. He took charge of the same along with the bottle at Article 2. Near the dead body, one mat, one quilt and one pillow were kept in unfolding condition. He took charge of them which are at Articles 6 (Colly.), 7 and 8. Articles 3,4 and 5 were the said clothes. He took charge of the same along with the bottle at Article 2. Near the dead body, one mat, one quilt and one pillow were kept in unfolding condition. He took charge of them which are at Articles 6 (Colly.), 7 and 8. He was shown the Inquest Panchanama at Exh.11. It was written and signed by him and panchas. Thereafter he prepared AD Form and sent dead body to J. J. Coroner's Court. Nobody else except the witness, panchas, staff and the husband of the deceased were present in the room at the time of panchanama. The witness also recorded the statement of Kantilal Maganlal Parmar, who was not present at the place of occurrence at the time of making panchanama. He had taken the telephone number, address of other witness and called him on the spot on the same day and had recorded his statement. He also recorded the statement of other witnesses. He recorded the statements of all the witnesses as narrated by them. On 22nd May, 1990, he went to J. J. Coroner's Court for knowing the cause of death of the deceased. Dr. Shinde gave him the certificate of cause of death of the deceased. He placed it before PI Kadam. He prepared the incident report and placed it before the Senior P.I. On 22nd May, 1990, further investigation was entrusted to PI Kadam. In his crossexamination he has stated that he had recorded statement of Kantilal Parmar and he had stated before him as per portion marked “A” and “A1”. Those portions are marked as Exh.21 and 22 respectively. Then the 33 alleged additions which were made by PW 2 in his statement were pointed out to the witness who denied PW 2 having given any such statement to him which were letter made by him in the Court. Similarly, he stated that he recorded the statements of PW 4 and PW 5. PW 5 had stated before him as per the portion marked “B” in her statement which was then marked Exh.23. Similarly, the additions and omission in the statements of other witnesses were put to this witness. 15. PW 9 is the PI Vinayak Gajmal Patil, who took further investigation from PI Kadam, who was transferred, and further investigated the matter. PW 5 had stated before him as per the portion marked “B” in her statement which was then marked Exh.23. Similarly, the additions and omission in the statements of other witnesses were put to this witness. 15. PW 9 is the PI Vinayak Gajmal Patil, who took further investigation from PI Kadam, who was transferred, and further investigated the matter. According to him, accused Nos.1 and 2 were arrested on 24th May, 1990 and accused No.3 was arrested on 25th May, 1990. Initially the accused were arrested under section 498(A), 306, 304B r/w 114 of the Indian Penal Code. After examining all the paper, he came to the conclusion that it was the case under Sections 302 read with 114 of the Indian Penal Code. After completion of the further investigation, on 23rd January, 1991 he filed charge sheet against the accused under Sections 302, 498(A), 304B r/w 114 of the Indian Penal Code and in the alternative under Section 306 r/w 34 of the Indian Penal Code. In the crossexamination, he has stated that he has not investigated the case in the beginning but after going through all the case papers, he was conversant with the facts of the case. 16. We have seen the evidence threadbare. Learned trial Court was of the view that in the present case excepting accused Nos.1, 2 and 3, no other person had the chance to cause murder as the room in which accused No.1 and victim were residing was attached to their factory premises and was open to all the accused as they had the same business. But we have not seen any evidence in this case that accused Nos.2 and 3 were present in the house when the occurrence took place. It was an admitted case even of the mother and brother of the deceased and also of the neighbour of the deceased that the deceased was living separately for 2 and ½ months with accused No.1 in the premises in which occurrence took place. Therefore, in our view, accused Nos.2 and 3 could not have been convicted for offence under Section 302 of the Indian Penal Code as there was no evidence at all showing their presence at the place of occurrence either at the time of occurrence or immediately before the occurrence. Learned trial Judge, therefore, clearly erred in convicting accused Nos.2 and 3. 17. Learned trial Judge, therefore, clearly erred in convicting accused Nos.2 and 3. 17. Now coming to the conviction of accused Nos.2 and 3 under Section 498A of the Indian Penal Code, we have also not found any evidence by PW 1 or PW 2 which would suggest that they had at any point of time harassed the deceased for dowry. On the other hand, the brother of the deceased has admitted that he had given receipt for Rs.10,000/to accused No.1 and the statement of accused No.1 was that he had given loan of Rs.10,000/to his brotherinlaw i.e. wife's brother. Although the witness tried to show that he had received this amount as consideration for allowing accused No.1 to use a hut, he had stated that he had advised the deceased and accused No.1 to use his hut so that they do not have any quarrel which were being engineered by the motherinlaw and brotherinlaw of the deceased. If PW 2 gave receipt of Rs.10,000/to accused No.1 after receiving Rs.10,000/, then he would have also mentioned in the same receipt the purpose for which it was given. He claimed that he owned a hut but that was not established whether he was the owner of any such hut and if this hut was purchased or taken for use then why did not accused No.1 and his wife (deceased) shifted and even there was no necessity for them to take the hut of PW 2 when they were already living separately from the mother and brother of accused No.1. Therefore, the charge under Section 498A also, in our view, is not proved. It was tried to be suggested by the prosecution that because of the harassment for dowry, earlier also the complaints were made with the police, but no evidence was produced in the court by the prosecution suggesting that on any earlier occasion the deceased or any of her relatives had gone to police with a grievance of harassment of dowry. 18. Now, we have our own doubt whether the person can be convicted for both under Section 302 and 304B of the Indian Penal Code. But it may not be necessary for this Court to go into that question in the present case. It is true that the occurrence took place within seven years of the marriage. 18. Now, we have our own doubt whether the person can be convicted for both under Section 302 and 304B of the Indian Penal Code. But it may not be necessary for this Court to go into that question in the present case. It is true that the occurrence took place within seven years of the marriage. But since we have found that there is no evidence that the deceased was subjected to cruelty or harassment by her husband or any of the relatives of her husband. The present case, therefore, would not fall under Section 304A of the Indian Penal Code. There are essentially three ingredients for Section 304B. First ingredient is that the death of the woman should be caused by any bodily injury or burns which may occur in otherwise than under normal circumstances. The second ingredient is that it should occur within seven years of marriage and the third ingredient is that soon before her death the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. Though the first ingredients may be found in the present case but third ground we have not found. Therefore, the conviction of the accused under Section 304B was also misplaced. 19. Now coming to the offence under Section 302 of the Indian Penal Code, it is proved by the prosecution that accused No.1 himself had come to the police station and informed that his wife had died due to poisoning. This has been sufficiently proved by the testimony of panch witness and testimony of Investigating Officer. He himself gave the bottle which contained poison to the police. Had it been a case of suicide, as claimed by the defence, then the lady would not have suffered the injury which she had suffered and which are evident from the testimony of the Doctor, PW 6. The injuries on the body of the deceased unconnected to the poisoning were sufficient to cause death according to the opinion of the doctor. The injuries on the body of the deceased unconnected to the poisoning were sufficient to cause death according to the opinion of the doctor. Even in the statement under Section 313 when a question was put to accused No.1 that it had come in evidence that he was residing with his wife n some of the rooms of the factory where his wife died and after the death of his wife he produced one poison bottle before the police, he stated that it was correct. He also stated, it was correct what had come in evidence that he was staying with his wife in the room in the factory for 2 and ½ months prior to the date of occurrence. He also admitted that he reported to the police that his wife died due to the consumption of poison. He also admitted that he had produced a bottle of Vejafru poison before the police. Since according to the opinion of the doctor, this has not been a case of suicide and has been a case of homicide and further according to the doctors, force was used before poison was administered to the deceased, we are of the view that the conviction of accused No.1 under Section 302 of the Indian Penal Code cannot be interfered with. 20. For these reasons, we pass the following order : ORDER :( A) The appeal is partly allowed. (B) The conviction and the sentence awarded by the Learned Additional Sessions Judge in Sessions Case No. 334 of 1991 by order dated 19th December, 2002 to Accused Nos.2 and 3 is set aside. Fine, if any, paid by accused Nos.2 and 3 be refunded to them. The Accused Nos.2 and 3 be released forthwith, if not required in any other case. (C) The conviction and the sentence awarded by the Learned Additional Sessions Judge in Sessions Case No. 334 of 1991 by order dated 19th December, 2002 to Accused No.1 under Section 498A and 304B of the Indian Penal Code is set aside. However, we uphold the conviction and the sentence awarded by the Learned Additional Sessions Judge to Accused No.1 under Section 302 of the Indian Penal Code and also uphold the sentence of imprisonment for life as against Accused No.1.