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2011 DIGILAW 481 (BOM)

Gangubai Devba Ugalmugle v. State of Maharashtra

2011-04-20

PRASANNA B.VARALE, V.K.TAHILRAMANI

body2011
PRASANNA B.VARALE, J.:- As the present appeals are arising out of the same judgment. which is impugned in the instant appeals, the same are being decided by the common judgment. By way of present appeals, the applicants (original accused Nos.3 and 1 respectively in Sessions Case No. 93 of 2003) are challenging the judgment and order dated 14th March, 2005 passed by the learned First Ad-hoc Additional Sessions Judge, Buldana in Sessions Case No.93 of 2003 thereby convicting the appellant (original accused No.1)- Madhukar for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to life imprisonment and to pay fine of Rs.500/-(rupees five hundred only) and in default of payment of fine, he shall suffer further simple imprisonment for three months; and convicting the appellant (original accused No.1) Madhukar and appellant (original accused No.3) Gangubai for the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for six months and to pay fine of Rs.250/- (rupees two hundred and fifty only) each and in default of payment of fine each of them to suffer further simple imprisonment for one month. 2. Heard Shri. S. V. Sirpurkar, the learned Counsel appearing on behalf of the appellants and Shri. T. A. Mirza, the learned Additional Public Prosecutor appearing on behalf of the respondent/State. 3. Shri. S. V. Sirpurkar, the learned Counsel for the appellants submitted that the learned Sessions Judge has not appreciated the evidence on record in its proper perspective. He further submitted that the witnesses relied on by the learned trial Court are the near relatives of the victim. The prosecution has failed to bring the independent witnesses to support its case. Learned Counsel further submitted that the case of the prosecution is based on the circumstantial evidence and the prosecution has utterly failed to establish the circumstances or the chain of circumstances so as to leave every hypothesis of innocence of the appellants and unerringly point out that the appellants/accused only committed the offence in question. Learned Counsel strongly argued that the medical evidence is not properly considered by the learned trial Court and ultimately prayed for acquittal of the appellants. 4. Per contra, Shri. T. A. Mirza, the learned APP supported the judgment and order of the learned trial Court. 5. Learned Counsel strongly argued that the medical evidence is not properly considered by the learned trial Court and ultimately prayed for acquittal of the appellants. 4. Per contra, Shri. T. A. Mirza, the learned APP supported the judgment and order of the learned trial Court. 5. With the assistance of the learned Counsel appearing on behalf of the appellants and learned Additional Public Prosecutor appearing on behalf of the respondent/State, we have gone through the evidence on record. 6. The brief facts giving rise to filing of the present appeal can be summarized as under: The appellant-original accused No.1 Madhukar Deoba Ugalmugle was married to Leela. The marriage between Madhukar and Leela was solemnized on 03rd May. 2002. For the initial period of one year Leela was treated well by her in-laws, namely, Madhukar, husband; Deoba, father-in-law; and Gangubai, mother-in-law of victim Leela. Subsequently, when Leela had been to her parental house, she disclosed to her father Shivaji (PW-1) that her husband and in-laws were demanding Rs.50,000/- as hand loan for the purchase of land. It was also disclosed that Madhukar beat Leela as golden ring was not given to him by Shivaji (PW-1). As Leela told about the demand and ill treatment at the hands of her husband and in-laws, Shivaji (PW-1) collected the amount of Rs.50,000/- and gave it to Madhukar. After some days, Shivaji had been to the matrimonial house of Leela and demanded Rs.50.000/- from Madhukar and in-laws. Madhukar gave him assurance that he would return the amount after some time. Subsequently. it was disclosed to Shivaji (PW1) that the accused were insisting Leela that Shivaji (PW-1) should not demand Rs.50.000/ -. Leela told to her in-laws that as her father had collected Rs.50.000/- from other persons, they should repay the same. The accused persons, on this count, used to beat Leela and she was subjected to ill treatment at their hands. Leela whenever attended her parental home, she disclosed these things to Shivaji (PW-1). On receiving the information from Leela, Shivaji tried to persuade the accused persons to not to ill treat Leela. On 25.03.2003, when Leela had been to Mendgaon to attend the marriage of her relative, she disclosed about ill treatment received by her to Shivaji (PW-1). Shivaji persuaded her to keep patience and sent her back to her matrimonial house. 7. On receiving the information from Leela, Shivaji tried to persuade the accused persons to not to ill treat Leela. On 25.03.2003, when Leela had been to Mendgaon to attend the marriage of her relative, she disclosed about ill treatment received by her to Shivaji (PW-1). Shivaji persuaded her to keep patience and sent her back to her matrimonial house. 7. On 18.05.2003, Shivaji was informed by some person on phone about death of his daughter Leela. On receiving the information, Shivaji proceeded to village Pimpri and on the way, it was informed to Shivaji that Leela expired in Rural Hospital, Bibi. As such, Shivaji proceeded to Rural Hospital, Bibi. On reaching Rural Hospital, Bibi, Shivaji found the marks on throat of the dead body of Leela and also found that her mouth was smelling of insecticides. The Medical Officer, Rural Hospital, Bibi had informed Police Station Officer of Out Post Bibi about admission of Leela in dead condition in the hospital. API Khadke (PW-6), who was attached to Lonar Police Station, on receipt of letter No.97/2003, reached to Rural Hospital, Bibi. He prepared inquest panchanama and forwarded the body for postmortem. Shivaji (PW-1) had observed marks on the body of Leela and as such had suspicion in his mind about the death of his daughter Leela. Shivaji (PW-1) submitted report to the Police. On receiving the report, API Khadke took charge of the investigation and completed the formalities of investigation, such as drawing various panchanamas, recording statements, forwarding the material to Chemical Analyser, receiving the report from Chemical Analyser. On conclusion of the investigation, the charge-sheet came to be filed in the Court of JMFC, Mehkar. As the offence under Section 302 of the Indian Penal Code being exclusively triable by the Sessions Court, the case was committed to the Sessions Court. The charge was framed against the accused persons for having committed the offence punishable under Sections 302 and 498-A read with Section 34 of the Indian Penal Code. Accused pleaded not guilty. The defence af the accused was of denial and false implication. In support of the defence, the accused examined one witness Sau. Anandibai Gajanan Gore (DW1). On considering the evidence, the learned Sessions Judge found sufficient material against the accused persons; whereas there was no. material to, connect the accused Na.2-Deaba. Accused pleaded not guilty. The defence af the accused was of denial and false implication. In support of the defence, the accused examined one witness Sau. Anandibai Gajanan Gore (DW1). On considering the evidence, the learned Sessions Judge found sufficient material against the accused persons; whereas there was no. material to, connect the accused Na.2-Deaba. As such, accused Nos.1 and 3 were convicted and accused Na.2 Deoba was acquitted by the judgment and order dated 14th March, 2005. Prosecution, in support of its case about the ill treatment and the unnatural death of deceased Leela, examined in all seven witnesses; whereas the defence has examined one witness i.e. Sau. Anandibai Gore (DW1). Material witnesses of the prosecution are Shivaji (PW-1), father of deceased Leela; Vijay (PW-2); Vishwanath (PW-3); Manikrao Khadke (PW-6). Investigating Officer; and Dr. Bhagwan Zanwar (PW -7). 8. Shivaji (PW-1), in his substantive evidence before the Court, gave all the details in his deposition. He deposed that though far the initial period of one year, accused persons treated Leela nicely, they started demanding Rs.50,000/- as hand loan far purchase of land. He further deposed that as he was short of money, he raised the amount by demanding it from Vijay (PW-2) and Vishwanath (PW-3). Shivaji deposed about the disclosure made by Leela for ill treatment on the ground of not giving golden ring to. appellant-Madhukar. He further deposed that when he had been to the house of the accused and demanded the amount, the accused stated that they would return the amount. Shivaji deposed that in his presence, accused No.1 Madhukar had pushed Leela and also. threatened that he would commit three murders. He further deposed that an receiving the information about the death of Leela, he rushed to, Primary Health Center, Bibi and found that there were marks an her bady and throat. He had observed marks of rope an the hands and legs of dead body of deceased Leela. The FIR (Exh.36) is proved by Shivaji (PW-1). Shivaji was subjected to lengthy cross-examination. 9. Learned Counsel for the appellants attacking on the evidence of PW-1, submitted that the testimony of PW-1 is full of omission and has exaggerated his version as such his testimony cannot be relied upon. He also submitted that the family of accused persons is financially well of and as such there was no reason to demand money from Shivaji (PW-1). Learned Counsel for the appellants attacking on the evidence of PW-1, submitted that the testimony of PW-1 is full of omission and has exaggerated his version as such his testimony cannot be relied upon. He also submitted that the family of accused persons is financially well of and as such there was no reason to demand money from Shivaji (PW-1). Learned Counsel also submitted that as accused was not employed and was engaged in agricultural work, Leela was insisting her husband for employment. It was tried to suggest that as Leela was not happy with her marriage with the appellant, Leela committed suicide. Learned Counsel for the appellants, by referring to the cross-examination of Shivaji (PW -1), submitted that the defence was successful in bringing omission in respect of raising the amount by PW-1 from Vijay (PW-2) and Vishwanath (PW-3). He also submitted that PW1 had lodged a report after deliberations with relatives. 10. We have considered the testimony of Shivaji (PW-1). Merely because Shivaji (PW-1) has not given the details of the amount raised from various persons and omissions to that effect is no ground to discard the testimony of Shivaji (PW-1), which is otherwise unshaken and reliable. Shivaji (PW1) gave all the details of the constant demand by the accused persons for Rs.50,000/- as loan to purchase the land. The details are also given by Shivaji (PW-1) about disclosure by Leela regarding demand and ill-treatment for not fulfilling the demand. Perusal of testimony of PW-1 shows that after cremation was over, Shivaji (PW-1) went to Police Station along with the relatives namely Shivanand Ghuge and Satyabhama Kayande. It is revealed from the testimony of Shivaji (PW -1) that on receiving the information of death of Leela, the relatives gathered at Rural Hospital, Bibi. Merely because PW-1 was accompanied by the relatives who rushed to Hospital at Bibi, which is a natural and is no ground to discard the testimony of PW-1, treating to be unreliable. Though the defence tried to show that the financial condition of the accused persons was sound and they had handsome amount deposited in FDR in the name of accused No.3-Gangubai, this by itself would not wash away the version of Shivaji (PW-1) about the demand of Rs.50,000/- made by accused persons. 11. Though the defence tried to show that the financial condition of the accused persons was sound and they had handsome amount deposited in FDR in the name of accused No.3-Gangubai, this by itself would not wash away the version of Shivaji (PW-1) about the demand of Rs.50,000/- made by accused persons. 11. Vijay (PW-2) and Vishwanath (PW-3) deposed that the appellants/accused Nos.1 and 3 came to the house of Shivaji (PW1) at the time of Deepawali and demanded Rs.50,000/- as a loan to purchase land. Vijay (PW-2) deposed that Shivaji demanded Rs.20,000/- from him and Rs.20,000/- from Vishwanath (PW-3). Similar is the version of Vishwanath (PW-3). Though the omission was brought on record that Shivaji had Rs.10,000/ with him, this omission would not materially affect the version of Shivaji (PW -1) that the accused persons demanded Rs.50,000/- from PW-1 and PW-1 by raising this amount from other persons, paid the same to accused. 12. The next material witness is Dr. Bhagwan Zanwar (PW-7), who has proved the postmortem (Exh.56). He deposed that on 18.05.2003, he conducted postmortem on the dead body of Leela. He further deposed about the injuries, namely (i) Abrasion on right maxillary region with swelling of 2x2 cm; (ii) Abrasion with contusion on either side of larynx, it was 2x3 cm; (iii) Abrasion on left side submental region of half x 1 cm; (iv) Abrasion with contusion on supra sternal notch extending on manubrium stern of 2x3 cm; (v) Abrasion on left side infraclavilur region of 2x3 cm; (vi) Abrasion on left little finger of half x half cm; and (vii) Abrasion on right ankle joint on posterior aspect of half x 2 cm. He further deposed that there was fracture of cricoid cartilege. Organs like lungs were congested. In stomach there was 100 ml. semidigested food with whitish fluid having smell like poison material. Mucus membrane was congested and irritant. Spleen liver are congested. Uterus was empty. He further deposed that probable cause of death was asphyxia secondary to throttling supper added with organophosphorous poison. 13. Shri. S. V. Sirpurkar. the learned Counsel for the appellants, on the basis of medical evidence, vehemently argued that the deceased Leela who was not happy with her marriage with appellant-Madhukar, had committed suicide. Spleen liver are congested. Uterus was empty. He further deposed that probable cause of death was asphyxia secondary to throttling supper added with organophosphorous poison. 13. Shri. S. V. Sirpurkar. the learned Counsel for the appellants, on the basis of medical evidence, vehemently argued that the deceased Leela who was not happy with her marriage with appellant-Madhukar, had committed suicide. It was tried to be submitted that as in the postmortem report it shows that probable cause of death was asphyxia secondary to throttling supper added with organophosphorous poison, with the help of CA report, learned Counsel tried to submit that as the report shows the detection of organo phosphorous insecticide, monocrotophos (nevacron) found, Leela committed suicide by consuming insecticides, which is easily available in the house of any agriculturist. Learned Counsel, in support of his argument, has placed on record extracts of the book “Modi's Medical Jurisprudence and Toxicology - Second Edition”. Though the arguments of learned Counsel for the appellants looks attractive, we are unable to persuade to arrive at a conclusion as tried by the learned Counsel for the appellants. 14. Dr. Bhagwan Zan war (PW-7) has deposed that he found injuries on the dead body. He has also deposed that he found fracture of cricoid cartilege. 15. Perusal of inquest panchanama (Exh.48) proved by the Investigating Officer, reveals that the reddish coloured scar was seen on the right cheek of the deceased, one reddish coloured scar measuring 3x2 was visible around the voice box of the deceased. The inquest panchanama coupled with the postmortem report more particularly fracture of cricoid cartilege proved by Dr. Zanwar (PW -7) leaves us in no doubt about the homicidal death of Leela. Though the defence with the help of Anandibai Gore (DW1) tried to put a theory of accidental death of Leela and to suggest that Leela fell on the bar of iron cot on throat and then on the floor facing downward, we are unable to persuade ourselves with this defence in the backdrop of the evidence of Medical Officer Dr. Zanwar. The defence, as stated above, is also devoid of merit. Zanwar. The defence, as stated above, is also devoid of merit. In view of the spot panchanama, the situation of the place of the incident, as it reveals from the spot panchanama, in the room where Leela died, no bed or cot was seen and as such the theory tried to put up by the defence that Leela falling on cot, holds no water. 16. Though the defence has examined Sau. Anandibai Gore (DW1), on considering her testimony, we find the same is of no help to the defence. On appreciation of the evidence, we are of the opinion that the prosecution has brought sufficient evidence to prove deceased Leela was subjected to ill treatment on the demand of Rs.50,000/- and Leela died homicidal death. We also find that the prosecution has brought sufficient evidence so as to connect the appellants/accused-Madhukar and Gangubai for the commission of offence for which they are charged. The circumstances were established by cogent and reliable evidence by the prosecution. Learned Counsel for the appellants submitted that the present case would fall under Section 306 of the Indian Penal code and not under Section 302 of the Indian Penal Code. In support of his submissions, he placed reliance on the judgment of the Apex Court in the case of Virendra Kumar Vs. State of U.P. (reported in 2007(9) SCC 211 ) : [2007 ALLMR (Cri) 1382 (S.C.)]. In view of the evidence brought by the prosecution, we are unable to accept the submission of the learned Counsel for the appellants. Learned APP submitted that the death occurred in the matrimonial house of the victim Leela. The time of death was approximately late hours in the night. He further submitted that the death of the deceased was in the custody of the accused and the appellants/accused were to give the plausible explanation which they failed to do so. In support of his submission. learned APP placed reliance on the judgment of the Apex Court in the case of Krishna Ghosh Vs. State of West Bengal (reported in 2009 ALL MR (Cri) 2104 (S.C.)). He further submitted that in the present case also, the death of Leela is within a year of the marriage and as such the judgment in the case of Klishna Ghosh .v. State of West Bengal (cited supra) is squarely applicable to the present case. State of West Bengal (reported in 2009 ALL MR (Cri) 2104 (S.C.)). He further submitted that in the present case also, the death of Leela is within a year of the marriage and as such the judgment in the case of Klishna Ghosh .v. State of West Bengal (cited supra) is squarely applicable to the present case. We find considerable merit in the submission of the learned APP. On appreciation of evidence, we are of the opinion that the prosecution has successfully brought the evidence against the appellants to establish the complicity of the accused persons in the offence charged against them. Learned trial Court has appreciated the evidence in its proper perspective. We find no fault in the judgment and order dated 14th March. 2005 passed by the learned First Advocates Appeared :-hoc Additional Sessions Judge, Buldana in Sessions Case No.93/2003. In the result the appeals are dismissed. Appeals dismissed.