Moreover, as regards the alleged harassment by accused no.3 Kaushalya, mother in law, he only stated that she was not giving food to victim and not beyond that. Moreover, it is bald statement made by PW 1 Uttamrao against accused no.3 which was allegedly disclosed by victim to him which is not being supported by any other oral/documentary evidence and, therefore, such bald statement cannot be believed. Apart from that, even assuming for the sake of assumption without admitting that victim was not given food, apparently, mere said inaction would not attract ingredients of section 498-A of Indian Penal Code.
Print Page
Bombay High Court
Vitthalrao S/O Dattarao Kale vs The State Of Maharashtra At The on 10 October, 2012
Bench: Shrihari P. Davare
Citation; 2013 ALL M R (cri)1629
1. Heard learned respective counsel for the parties. 2
2. Challenge in this appeal is to the conviction and sentence imposed upon the appellant nos. 1 and 2 (original accused nos. 1 and 3) (hereinafter referred to as per their original status i.e. accused) by way of judgment and order dated 14.12.2004, rendered by learned 3rd Adhoc Additional Sessions Judge, Nanded in S.C.No.86/2004, thereby convicting the accused no.1 Vitthal Dattarao Kale for the offence p/u/s 498-A of Indian Penal Code and sentenced him to suffer R.I. for six months and to pay fine of Rs.500/-, in default to suffer R.I. for one month and also convicting accused No.3 Kausalya Kale for the offence p/u/s 498-A of Indian Penal Code and sentenced her to undergo S.I. for ten days and to pay fine of Rs.500/-, in default to suffer S.I. for ten days. In fact the accused nos. 1 and 3 faced trial in the said sessions case alongwith co-accused i.e. accused no.2 for the charges under section 498-A, 304-B r/w 34 of Indian Penal Code, but the accused no.2 namely Dattarao Kale was acquitted of all the charges and also accused nos. 1 and 3 were also acquitted for the offence p/u/s 304-B r/w section 34 of Indian Penal Code except conviction and sentence under section 498-A of Indian Penal Code, as aforesaid.
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3. Brief facts which can be summarized as under :- Victim namely Vaishali married with the accused no.1 namely Vitthalrao in the year 2002 and after marriage she started residing with the accused persons at her matrimonial home. The accused no.2 Dattarao is her father in law, whereas accused no.3 Kausalya is her mother in law. It is alleged that the victim Vaishali was subjected to cruelty by the accused persons on account of non fulfillment of unlawful demand of Rs.50,000/- made by them to her to be brought by her from her parental house for cleaning the well in land and i.e. taking out mud out of well, which resulted into committal of suicide by her by jumping into well on 12.08.2003. It is also alleged that she was removed from the well, but she had died and said incident was informed to Vaishali's parents and they came to village Maradga. In the meantime, matter was reported by Police Patil to police station Hadgaon. PW 8 PSI Dilip Jadhav was working in the Police Station, Hadgaon and accidental death was registered on 13.8.2003 at police station, Hadgaon on the report lodged by Police Patil of village Maradga to police out post Niwgha. Accordingly, PW 8 PSI Jadhav visited the spot and conducted inquest panchnama of the dead body of the victim 4
Vaishali on 13.8.2003 at about 07.30 to 07.45 am (Exh.30). Thereafter, said dead body was sent to Rural Hospital, Hadgaon for post mortem purpose. Accordingly, PW 11 Dr. Haribhau Gadekar conducted postmortem on the said dead body on 13.8.2003 between 12.00 to 01.00 p.m and said postmortem notes are produced at Exh.29. PW 8 PSI Jadhav also conducted the spot panchanama at the place of incident which is produced at Exh.28. The report of Police Patil is also produced at Exh.32. PW 8 PSI Jadhav recorded statements of the witnesses and neighborers on 13.8.2003 and 14.08.2003. DYSP Bhokar also visited the scene of offence and supervised the investigation, however, since no offence was disclosed, PW 8 PSI Jadhav closed the inquiry by submitting the report to Taluka Inspector, Hadgaon and said report is marked at Exh.33.
4. It is further alleged that, Vaishali's brother and father tried to lodge the complaint with the police, but no cognizance was taken hence, they lodged the complaint with Superintendent of Police and Tahsildar, Hadgaon and, matter was referred to Police Station, Hadgaon, however, since there was no progress in the 5
matter, father of Vaishali Uttamrao lodged the complaint with Judicial Magistrate First Class, Hadgaon. Accordingly, learned Judicial Magistrate F.C. Hadgaon took cognizance of said offence and directed to issue process. Accordingly, after completion of inquiry under section 202 of Code of Criminal Procedure, he committed case under section 209 of Cr.P.C. to the Court of Sessions, since the offences alleged against the accused were exclusively triable by the Court of Sessions.
5. Accordingly, learned 3rd Adhoc Additional Sessions Judge, Nanded framed charge against accused persons on 9.8.2004 for the offence p/u/s 498-A r/w 34 of Indian Penal Code and also under section 306 r/w 34 of Indian Penal Code (Exh.7). Moreover, the said charge was modified on 5.11.2004 and charge under section 304-B r/w 34 of Indian Penal Code was also framed against accused persons by the learned trial court. However, accused pleaded not guilty to the said charges and claimed to be tried. To substantiate the charges levelled against accused, prosecution has examined 11 witnesses as mentioned below :- 6
1. PW 1 Uttamrao s/o Gyanbarao Shinde - father of victim and complainant.
2. PW 2 Rohidas s/o Shivram Shinde uncle of victim.
3. PW 3 Kondiba Hanmant Puri friend of PW 1 Uttam.
4. PW 4 Pandit s/o Uttamrao Shinde brother of victim.
5. PW 5 Ushabai w/o Uttamrao Shinde mother of victim.
6. PW 6 Ramchandra s/o Gyanoba Shinde panch to inquest panchnama -Turned hostile.
7. PW 7 Dhulaji s/o Tukaram Nirmal panch to the spot panchnama.
8. PW 8 Dilip Prabhakarrao Jadhav Police Officer, who carried part of the investigation.
9. PW 9 Tukaram Kisanrao Kadam maternal uncle of victim.
10. PW 10 Ganpat Vikram Kadam grand father of victim.
11. PW 11 Dr. Haribhau Ganpatrao Gadekar, Medical Officer, who conducted postmortem report on the dead body of victim.
6. The defence of the accused was of total denial and, they also denied about any ill treatment meted out by them to the victim. They tried to explain the death of victim stating that on the day of incident, Vaishali had been to field with her mother in law i.e. accused no.3 for agricultural work and, while they were working, Vaishali went to well for fetching water to drink it, but 7
while she was fetching water by rope, she fell in side the well. Nearby people immediately rushed and took out her of the well and, tried to save her life but, she could not be saved. According to them, death of Vaishali is not suicidal but, it is accidental death. They also asserted that there was no ill treatment to Vaishali at the hands of the accused and, therefore, they contended that they have not committed any offence and accordingly they claimed to be innocent. However, they neither examined themselves on oath nor examined any witness in support of them. After considering the oral and documentary evidence on record, learned trial court acquitted all the accused for the offence p/u/s 304-B r/w 34 of Indian Penal Code and also acquitted the accused no.2 from both the offences i.e. 498-A and section 304-B of Indian Penal Code, whereas convicted the accused nos. 1 and 3 for the offence punishable u/s 498-A of Indian Penal Code, as aforesaid. Being aggrieved and dis-satisfied by the said conviction and sentence, accused nos. 1 and 3 have preferred the present appeal assailing the said conviction and sentence by impugned judgment and order dated 14.12.2004 and, prayed for quashment thereof and also urged for their consequent acquittal.
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7. The learned counsel for the appellants/accused canvassed that all the witnesses examined by the prosecution except panchas, police officer and doctor are closely related with the complainant PW 1 Uttam Shinde and accordingly, they are interested witnesses whose testimonies are required to be scrutinized closely. In the said context, it is further submitted by learned counsel for the appellant that prosecution has not examined any independent witness to substantiate the charges levelled against the accused. Moreover, he asserted that even Sahebrao Kale who allegedly informed the complainant about the death of victim also has not been examined by the prosecution although, he is a material witness. Moreover, even the Investigating Officer who carried out further investigation and filed charge sheet also has not been examined by the prosecution. Moreover, panch witness to the inquest panchnama i.e. PW 6 Ramchandra Shinde turned hostile and did not support the case of the prosecution. As regards testimony of PW 11 Dr. Haribhau Gadekar who performed the postmortem on the dead body is concerned, it is submitted that he has stated in his deposition that death of victim may be accidental and he has not categorically 9
stated that death of victim is homicidal. It is further submitted that said aspect has been strengthened by the spot panchnama and the photographs which disclose that height of the wall is one and half feet and one rope along with a pot was found floating on the water of the well. As regards the alleged harassment/ill treatment at the hands of the accused to the victim is concerned, it is submitted that no specific details of alleged ill treatment and/or manner of ill treatment allegedly given by the accused to the victim has been narrated by any of the witnesses. Accordingly, the witnesses do not spell out what type of ill treatment was given by the accused to the victim and testimonies of prosecution witnesses in that respect are vague and ambiguous. It is further submitted that there are discrepancies in the testimonies of prosecution witnesses in respect of arrival of victim to the parental house at different festivals and even in respect of other particulars, which go to the root of the matter and hampers the case of the prosecution.
8. Besides, according to learned counsel for the applicants, the statements of the complainant Uttam Shinde, his 10
wife Ushabai Shinde and brother of victim namely Pandit Shinde were recorded on 13.8.2003 i.e. on the very next date of the occurrence of incident and PW 8 PSI Jadhav has admitted that PW 1 Uttam i.e. father of victim stated before him that his daughter had no trouble from anybody and she was carrying eight months pregnancy, and the said statements which are at Exh.34, exh.35 and exh. 36 bring out truth on record which clarifies the position. Accordingly, learned counsel for the appellants submitted that the learned trial court has not assessed the evidence in proper perspective and committed glaring mistake while convicting the accused by impugned judgment and order dated 14.12.2004 and, further submitted that said judgment is perverse and therefore, urged that present appeal be allowed and conviction and sentence imposed upon the accused nos. 1 and 3 be quashed and set aside and they be acquitted for the offences with which they were charged. Even the contents of A.D.R dated 12.8.2003 Exh.4 clarifies that victim Vaishali fell in the well and met with death due to drowning and said contents of very report which was recorded at the first point of time clarifies that victim met with accidental death.
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9. Learned APP countered the said argument and opposed present appeal vehemently and submitted that victim Vaishali was subjected to cruelty and ill treatment by the accused within four walls and therefore, independent witnesses could not be there and, hence, prosecution has examined the relatives of the victim before whom she had disclosed the ill treatment meted out to her by the accused. Hence, testimonies of the said witnesses are relevant. He further submitted that PW 11 Dr. Gadekar have stated that death of victim may be accidental, suicidal or even somebody pushes living person in a well. He also stated that according to him, he cannot opine whether deceased was pushed or slipped due to accident or committed suicide. However, he gave cause of death of victim as 'asphyxia due to drowning'. Hence, he submitted that there is no clear opinion of Medical Officer about accidental death of victim. Moreover, as regards the alleged discrepancies and deformities in the testimonies of prosecution witnesses, he submitted that there are some minor discrepancies in the testimonies of prosecution witnesses, but same do not go to the root of the matter and, do not hamper the case of the prosecution. It is further submitted 12
that the complainant and his son ran from pillor to post to lodge the complaint, but the police personnel did not take cognizance thereof and ultimately, the complainant was required to approach the learned Judicial Magistrate First Class, Hadgaon who took the cognizance and set the criminal law into motion and said aspect also cannot be ignored. According to learned APP, the learned trial court has scrutinized and analyzed the evidence in proper perspective and, thereafter convicted and sentenced the accused nos. 1 and 3 and there is no glaring mistake therein and therefore, no interference therein is called for in the present appeal and hence, urged that present appeal be dismissed. Learned APP also submitted that the marriage of accused no.1 Vitthal and victim Vaishali took place in the year 2002 and victim Vaishali committed suicide on 12.8.2003 due to harassment and ill treatment meted out to her within span of seven years from the marriage and hence, presumption under section 113 (A) of Evidence Act deserves to be invoked against the accused.
10. I have perused the impugned judgment and order dated 14.12.2004 and also perused the oral, documentary and 13
medical evidence adduced/produced by the prosecution and heard rival submissions advanced by the learned counsel for the parties anxiously.
11. In order to advert to the rival submissions advanced by learned counsel for the parties, it is necessary to deal with the material evidence adduced/produced by the prosecution and in the said context, at the outset, coming to the testimony of PW 1 Uttamrao Shinde i.e. father of the victim and complainant stated that deceased Vaishali was his daughter. She married with accused no.1 Vitthal in May, 2002. After marriage she went to her matrimonial home. Initially she was treated well for about 2-3 months, but there after accused started abusing and assaulting her on account of less payment of dowry. He stated that he had paid Rs.60,000/- dowry and when his daughter visited his house on first Akhadi, she disclosed that accused were asking her to bring Rs.50,000/- from him for the purpose of cleaning the well i.e. taking out mud from the well, however, he was unable to pay the amount. Hence, he advised his daughter that as dowry of Rs. 60,000/- was given to her by selling bullocks and agricultural land, 14
he was unable to pay the said amount. He also stated that again victim visited his house at the time of festival of Nagpachami and at that time, she also complained that she was subjected to trouble by her mother in law and she was starving her. Hence, his brother PW 2 Rohidas went with her to her matrimonial home and convinced about their condition to the accused. He further stated that victim did not come for first Rakhi Pournima after marriage but by second Rakhi Pournima she expired on 12.8.2003 i.e. on the very day of Rakhi Pournima. He came to know about her death from one Sahebrao Kale, who informed him that his daughter committed suicide by throwing herself into the well. Hence, he went to Maradga alongwith his wife, brother and other persons and he and his brother Ramchandra went to police station Niwgha i.e. out post and informed about death of his daughter. Thereafter, police came to village Maradga on the next day morning at about 11.00 am and police took dead body to Hadgaon for postmortem. Thereafter he went to Hadgaon police station, but police did not take any cognizance. Hence, he went to Nanded alongwith his brother and visited the S.P. Office and gave application Exh.19 but, no action was taken by the S.P. Office. Hence, he lodged the 15
complaint with Tahsildar, Hadgaon who referred the said matter to police Station, Mantha, however, as there was no progress in the matter, he filed complaint before learned Judicial Magistrate First Class, Hadgaon through his advocate Exh.1. Accordingly, he stated that delay was caused in filing the said complaint due to aforesaid reasons.
12. During cross examination, he stated that, victim was carrying pregnancy of eight months at the time of occurrence of the incident. He also admitted that accused no.1 used to take his daughter for periodical checkup and she was carrying pregnancy for first time. He also stated that he along with his wife had been to matrimonial home of his daughter on the festival of Mahalaxmi and, had made halt there during night and, accused offered clothes and saree to them and PW 1 also offered clothes and saree to accused reciprocally. He further stated that his brother's son namely Sudarhsan's marriage took place in the next year of marriage of her daughter, that time daughter of complainant and accused were called with protocols and they visited the marriage and during said marriage clothes and saree were offered by PW 1 16
to accused. He also stated that after three months of marriage Vaishali told that dowry was paid less. However, he further stated that as agreed in settlement everything was paid and, nothing was remained with them. Hence, suggestion was given that his daughter complained about less dowry paid to him, but same was denied. It was also suggested that his daughter complained to him about ill treatment, but same was denied by him. The defence of the accused was put to him in the cross examination that his daughter had been to well to fetch water on the day of incident, but, he stated that he was not aware of the same, however, he further stated that it may be that his daughter had gone to fetch water on well, but further denied that while fetching water, his daughter fell in the well. However, he admitted that Vaishali was not knowing swimming. He denied that Vaishali died accidentally due to drowning and stated that she has committed suicide. It was further suggested to him that the complainant demanded the expenses incurred by him for marriage of the daughter i.e. Rs. 50,000/- and accused failed to meet the demand and therefore, false case was lodged by the complainant against accused persons, but same was denied by him.
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13. The substance of the testimony of PW 1 Uttam Shinde is that whenever his daughter Vaishali used to visit his house at the time of festivals, she disclosed that the accused demanded Rs.50,000/- from her for cleaning the well, since less dowry was paid during the marriage and due to non fulfillment of the said amount, she was subjected to ill treatment by her mother in law since she starved her. However, it is material to note that, there are no allegations against husband of the victim i.e. accused no.1 Vitthal in respect of any ill treatment/harassment. Moreover, as regards the alleged harassment by accused no.3 Kaushalya, mother in law, he only stated that she was not giving food to victim and not beyond that. Moreover, it is bald statement made by PW 1 Uttamrao against accused no.3 which was allegedly disclosed by victim to him which is not being supported by any other oral/documentary evidence and, therefore, such bald statement cannot be believed. Apart from that, even assuming for the sake of assumption without admitting that victim was not given food, apparently, mere said inaction would not attract ingredients of section 498-A of Indian Penal Code. It is also evident from the testimony of PW 1 that accused no.1 had taken due care of victim 18
during her first pregnancy and he used to take her for periodical check up. It appears from the testimony of PW 1 that there were cordial relations between the accused and complainant and complainant and his wife used to visit the matrimonial home of his daughter on the occasions of festival and, even used to stay there as well as offerings of clothes and saris used to be made by them each other reciprocally on the various occasions. Hence, there do not appear to be any strained relations between the complainant and accused persons on account of ill treatment and harassment by the accused to victim.
14. In so far as the defence put up by the accused is concerned, it was suggested to PW 1 that his daughter had been to fetch water from the well and, while fetching water his daughter fell in the well and met to death by drowning accidentally. It is necessary to advert to the testimony of PW 7 Dhulaji Nirmal i.e. panch witness to the spot panchanama who stated that in the field of Dattarao Kale, there was a well having cement fencing or border and the said wall was constructed in cement ring which was having water, but there were no steps in the well but it was 19
having steal rod for climbing in the hook type and there was 15' deep water from ground level. Panchas found the pot tied with rope in the well and rope was on surface, of the water whereas the pot was inside the water. Accordingly, panchas conducted panchnama on the spot. It is produced at Exh.28. In cross examination, he stated that well was about 50 to 60 feet deep and water was clear. The water column in the well must be more than 1 and ½ feet. Moreover, they were not able to see the bottom of the well. He also stated that cement ring was about 1 foot in height above ground level. He also stated that his house was near the house of the accused and matrimonial life of Vaishali and Vitthal was going on well. Financial condition of accused was good. The said spot panchnama is marked at Exh.28.
15. Thus, the testimony of PW 7 Dhulaji Nirmal spot panch and contents of spot panchnama clarify that the well was having cement fencing or ring and height thereof from ground level was hardly about one foot to one and half foot and therefore, there was every possibility of falling down the victim in the well while fetching the water since the height of the said cement ring 20
was very short i.e. about one to one and half foot from ground level. Moreover, it cannot be ignored that victim was pregnant for about eight months and possibility of her falling in the well while fetching water due to loss of balance also cannot be ruled out. Moreover, it is apparent that said well was not having any steps and there was deep water in the said well from ground level i.e. above 15 feet. Pertinently, there was a pot tied with rope in the well and rope was on the surface whereas the pot was inside the water and rope was about 30feet and said very aspect strengthens the defence of the accused that while fetching the water from well, victim lost her balance and fell in the well and therefore, the said rope having distance about 30feet and pot tied thereto was found in the said well. Moreover, the testimony of said panch witness further clarifies that he was residing near the house of the accused and matrimonial life of victim Vaishali and accused no.1 Vitthal was going on well and, also financial condition of the accused was good which rules out the possibility of demand of Rs.50,000/- by accused to victim for cleaning the well and further rules out the possibility of harassment to victim by accused on account of alleged non fulfillment of the said demand 21
as PW 7 Dhulaji is the independent witness and therefore, his contention is required to be believed. Hence, further defence put up to PW 1 that accused has been involved in this case falsely as accused refused to reimburse the marriage expenses incurred by PW 1 for marriage of her daughter appears to be probable.
16. That takes me to the testimony of PW 2 Rohidas i.e. uncle of the victim, who stated that Vaishali used to tell him that she has trouble from her husband and parents in law and they were asking her to bring Rs.50,000/- for construction of well. He further stated that, on the day of Rakhi Pournima of second year, they came to know that Vaishali committed suicide by jumping into well. In cross examination, suggestion was given to him that there was no trouble to Vaishali and Vaishali was living peaceful life and he deposed falsely to that effect, but same was denied by him. However, he admitted that he has no personal knowledge how Vaishali died whether accidentally or suicidally. As regards allegations made by PW 2 Rohidas, it appears that according to him, Vaishali disclosed him about harassment meted out to her by the accused but, said alleged harassment was in the form of 22
trouble given by the accused to her, but PW 2 Rohidas has no where narrated which type of trouble was given to Vaishali, but he simply made a bald statement that Vaishali used to tell him that she had trouble from accused. Besides, he stated that the accused used to ask Rs.50,000/- from her for construction of well. Significantly, P.W. 1 Uttamrao has alleged that his daughter disclosed him that accused used to ask Rs.50,000/- from her for the purpose of cleaning the well i.e. taking out mud from well, whereas PW 2 stated that alleged amount was demanded for the purpose of construction of well and accordingly and there is discrepancy in respect of the very purpose of the alleged demand and versions of both the said witnesses are contradictory to each other. Pertinently, spot panchnama discloses that there was already constructed well in the field of the accused and hence, alleged demand for construction of well cannot be believed and said contents of very spot panchnama falsifies the version of PW 2 Rohidas.
17. So is the position with the testimony of PW 4 Pandit Uttamrao Shinde i.e. brother of victim and his deposition is on the 23
line of PW 1 Uttamrao, whereas, PW 5 Ushabai mother of victim stated on the lines of PW 2 Rohidas Shinde as PW 4 Pandit stated that accused demanded Rs.50,000/- for cleaning the well whereas PW 5 Ushabai stated that alleged amount of Rs.50,000/- was made from victim by the the accused for digging and construction of the well. Hence, even testimonies of PW 4 Pandit and PW 5 Ushabai are contradictory to each other on that count. Moreover, testimony of PW 4 Pandit is the repetition of testimony of PW 1 Uttamrao, whereas, testimony of PW 5 is the repetition of testimony of PW 2 Rohidas and their testimonies do not assist the prosecution case to take further ahead to connect the accused with the crime.
18. That takes me to the medical evidence i.e. testimony of PW 11 Dr. Haribhau Gadekar, who stated in his deposition that he received female dead body of Mrs. Vaishali Kale of village Maradga from Police Station, Hadgaon for postmortem purpose on 13.8.2003. Accordingly, he performed postmortem on the said dead body between 12.00 noon to 01.00 p.m. on the said day. On examination of the said dead body he found that there were no 24
ante mortem injuries. He noticed following internal injuries :- Brain and its coverings were congested. Larynx, Traches and Bronchia were congested. Right
and left lungs were congested, on C/s section. Frothy secretion coming through cut section. Heart was congested. On cut section. Right
chamber of heart contains blood. On stomach, it was found congested on cut section 500 ml of partially food with liquid present. Mucosa was congested. No any organic smell found liver, pancreas spleen, kidneys were found congested. Organs of generations : There was evidence of 28 weeks of pregnancy. ON cut section of uterus found female baby still born, weight of 900
grams. Time of death and last meal according to contents of stomach, it was found before 6 hours of last meal.
From all these findings, according to him, cause of death was 'asphyxia due to drowning'. He stated that accordingly be prepared postmortem report which is produced at Exh.29.
19. During the course of cross examination, he stated that death may be accidental. He also stated that injuries mentioned in column no.17 may be possible while taking out the dead body. In re examination, he further stated that this case may be accidental, suicidal or somebody pushes living person in well. However, from postmortem examination, he could not give any opinion whether deceased was pushed or slipped due to accident 25
or committed suicide.
20. In substance, according to testimony of PW 11 Dr. Gadekar, he performed postmortem on the dead body of victim Vaishali and he did not find any ante mortem injuries thereon and considering the internal injuries, he stated that death was due to 'asphyxia due to drowning' which may be accidental and injuries on the dead body specified in column no.17 may be possible while taking out dead body from well. He further stated that this may be case of accidental, suicidal or even somebody pushes living person in the well but, refrained from giving any concrete opinion whether deceased was pushed or slipped due to accident or committed suicide. The totality of evidence of said Dr. Gadekar discloses that deceased Vaishali met with the unnatural death, which may be accidental or suicidal. However, possibility of suicidal death of victim Vaishali appears to be remote considering the factors discussed herein above and hence, it appears that the victim sustained accidental death as stated by PW 11 Dr.Gadekar in the cross examination which finds support from the spot panchnama and testimony of spot panch PW 7 Dhulaji Nirmal. 26
21. It is also material to note the contents of A.D.R Exh. 32 which was recorded at first point of time i.e. on 12.8.2003 from the report made by Police Patil Pralhad Kale, independent witness and the contents thereof reflect that victim Vaishali Kale met with the death due to fall in the water in well in their village and said ADR coupled with postmortem notes Exh.29 and testimony of PW 11 Dr. Gadekar lead to position that the victim Vaishali died due to asphyxia due to drowning, which is unnatural.
22. In the circumstances, after having the survey of the entire ocular, documentary and medical evidence, I am of the view that there are inconsistencies and deformities in prosecution case, and hence, the prosecution case does not inspire confidence to connect the accused nos. 1 and 3 with the crime punishable under section 498-A of Indian Penal Code and, therefore, the conviction and sentence imposed upon them for the said offence is erroneous and unsustainable and therefore, same deserves to be quashed and set aside and accused nos. 1 and 3 deserve to be acquitted thereof and fine amount, if any, paid by them is required to be refunded to them and their bail bonds need to be cancelled. 27
23. In the result, present appeal is allowed and, the conviction and sentence imposed upon the appellants i.e. original accused nos. 1 and 3 by judgment and order dated 14.12.2004, rendered by learned 3rd Adhoc Additional Sessions Judge, Nanded stands quashed and set aside and, the appellants are acquitted for the offence with which they were charged and convicted. Fine amount, if any, deposited by them be refunded to them. Bail bonds of the appellants stand cancelled.
( SHRIHARI P. DAVARE )
JUDGE.
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