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Judgment
Vibha Kankanwadi, J.
1.Heard learned Advocate for the petitioners, learned Addl. Public Prosecutor for respondent no.01 and the learned Advocate for respondent no.02.
2.Rule. Rule made returnable forthwith. By consent, heard finally.
3.Present petition has been filed by the original accused persons for quashing of the first information report lodged against them at the instance of
respondent no.02 Â original informant and the proceedings i.e. the chargeÂsheet filed after investigation of the crime; by invoking powers of this
Court under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973.
4.The petitioners have come with a case, that ancestors of petitioner no.01 purchased agricultural land bearing Gut No. 123 admeasuring 1 hectare 54
R situated at village Sheri Chikalthan, Taluka Rahuri, District Ahmednagar, on 27.04.1967 from respondent no.02. In view of the said sale deed, the
ancestor of petitioner no.01, namely, Jivaram Gaikwad was put in possession of the disputed property. The revenue entries regarding his name has
been taken. Since then, the ancestor and after him, the petitioners are in possession and cultivation of the said land. Respondent no.02 had made
unsuccessful attempt seeking relief of declaration of ownership and possession over the said property by instituting civil suit bearing Regular Civil Suit
No. 02 of 1999. The said suit came to be dismissed by the Civil Judge (Junior Division), Rahuri, on 19.02.2013.
5.Being aggrieved by the said decree, respondent no.02 had preferred appeal bearing Regular Civil Appeal No. 101 of 2013 before the District Court,
Ahmednagar. The said appeal came to be dismissed. However, respondent no.02 and others started interfering with the peaceful possession of the
petitioners over the disputed property and, therefore, petitioners instituted Regular Civil Suit No. 74 of 2003 on 12.03.2003 against respondent no.02
and one more, by name, Nana Gagappa Bagul, for permanent injunction. The said suit came to be decreed by Civil Judge (Junior Division), Rahuri,
District Ahmednagar, on 30.07.2010. By the said decree, respondent no.02 has been permanently restrained from obstructing possession of the
petitioners over the disputed property. Inspite of all these facts, respondent no.02 has lodged first information report bearing Crime No. IÂ162/2017,
contending that the present petitioners have committed offence punishable under Sections 435, 447 of the Indian Penal Code. The petitioners contend
that the said attempt on the part of respondent no.02 is nothing but misuse and abuse of process of law. The FIR has been lodged in order to settle
personal scores and in order to cause undue harassment to the petitioners. Even respondent no.02 had lodged a false and concocted complaint under
Section 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 [For short, ""Atrocities Act] in the past. The
petitioners have been acquitted of the said offence.
6.Perusal of the FIR would show that by no stretch of imagination, ingredients of the offence have been attracted. Initially, the petitioners had prayed
for quashing of the FIR and during pendency of the petition, since chargeÂsheet had been filed vide R.C.C. No. 194 of 2017 before Judicial
Magistrate (F.C.), Rahuri, by way of amendment to the petition, they have prayed for quashing of the proceedings also.
7.Respondent no.02 has filed affidavit in reply, reiterating the contents of the FIR lodged by him. He says, that he was in possession of the disputed
property. Though the petitioners have been acquitted from the complaint under the Atrocities Act, he has filed Criminal Appeal bearing No. 376 of
2017 before this Court. Police authorities have recorded statements of various persons and there is evidence against the petitioners. When there is
evidence against the petitioners, there is no reason for quashing the FIR as well as the chargeÂsheet by invoking the discretionary powers of this
Court. He has further submitted that land bearing Gut No. 123 was in his possession and he has planted pomegranate trees. He has incurred huge
expenses and developed the orchid. The petitioners had forcibly entered the orchid on 12.05.2017 and destructed the trees causing damage worth Rs.
15,00,000/Â to him. Under such circumstance, he had lodged the FIR. He has, therefore, prayed for dismissal of the petition.
8.Affidavit in reply has also been filed on behalf of respondent no.01 Â Investigating Officer. He has stated after reiterating the contents of the FIR,
that evidence has been collected against the petitioners. Eye witnesses have supported the respondent no.02 and, therefore, he had filed the chargeÂ‐
sheet. He has also stated that since the chargeÂsheet has been filed, the petitioners can approach the learned Sessions Court for discharge under
Section 227 of the Cr.P.C.
9.Perused copy of the chargeÂsheet made available as well as other documents which have been produced on record by the petitioners. The
petitioners have produced on record, copy of the sale deed executed on 27.04.1967 between one Jivaram Gopal Gaikwad and Bhaga Ramaji Bagul. It
is not in dispute, that Shevraj Jivaram Gaikwad, who is present petitioner no.01, was then aged 17 years and, therefore, the sale deed was got
executed in his name through his guardian father. The said land was sold by the father of respondent no.02. At that time, survey numbers of the land
were 84/2 admeasuring 03 Acres 32 Gunthas and 84/6 admeasuring 01 Acre 10 Gunthas. The petitioners have also produced on record, the 7/12
extract showing that out of Gut No. 123, Nana Bhaga Bagul is possessing 77 R area, Bansi Bhaga Bagul is possession 77 R area, whereas petitioner
no.01 is possessing 01 Hectare 54 R area. Said Bansi Bhaga Bagul and Nana Bhaga Bagul had filed Regular Civil Suit No. 02 of 1999 before Civil
Judge (J.D.), Rahuri, for declaration and possession. Copy of the judgment would show that the property involved in the said petition was different i.e.
not Gut No.123. However, that suit was dismissed. It was held that the petitioners therein are not the owners and in possession of the suit
properties.
10.Further, the documents on record show that petitioner no.01 had filed Regular Civil Suit No. 74 of 2003 before Civil Judge (J.D.), Rahuri, for
permanent injunction. The suit property was Gut No.123 admeasuring 01 Hectare 54 R situated at village Chikthan, Taluka Rahuri, District
Ahmednagar. The said suit was filed against present respondent no.02 and his brother Nana Bhaga Bagul. The said suit came to be decreed on
30.07.2010 and the defendants therein i.e. present respondent no.02 and his brother were permanently restrained from causing obstruction to the
possession, enjoyment and cultivation of the suit property of the plaintiff. Surprisingly, at the time of arguments, it has been submitted on behalf of
respondent no.02, that the said decree was challenged by respondent no.02 before District Court, Ahmednagar, and the said Civil Appeal has been
dismissed and the Second Appeal is now pending before this Court. However, there is no stay to the said decree. Therefore, these documents
definitely give an impression that since the date of purchase, previously the guardian of petitioner no.01 and thereafter petitioner no.01 himself possess
the suit property i.e. Gut No.123 admeasuring 01 Hectare 54 R land, till today.
11.At this stage, it is necessary to consider the contents of the FIR. Respondent no.02 has stated in the FIR, that the land admeasuring 01 Hectare 54
R in Gut No.123 situated at village Chikalthan belongs to him and his brother Nana Bhaga Bagul. Petitioner no.01 has land Gut No.122 which is
adjacent to Gut No.123. He has stated that the dispute is pending before Rahuri Court and he has filed Regular Civil Suit No. 762 of 2015 before the
said court. He was present in Gut No.123 on 12.05.2017. At that time, all the petitioners came and destroyed his pomegranate trees thereby causing
him damage to the tune of Rs. 15,00,000/Â. Thus, it can be seen from the FIR, that he intended to say that the petitioners had entered into 01 Hectare
54 R land of Gut No.123.
12.At this stage, we would like to consider the statements of the witnesses which have been recorded by the Police Officers. One Sitaram Bansi
Bagul i.e. son of present respondent no.02, Dilip Dagadu Bhosle, Subhash Karbhari Jadhav and Raosaheb Namdev Kakade are the witnesses whose
statements have been recorded. They are in echo with respondent no.02. Important point to be noted is that, statements of the witnesses appears to
have been recorded on 25.05.2017, whereas as per the FIR, the offence had taken place in between 10.00 a.m. of 11.05.2017 to 07.30 p.m. of
12.05.2017. There appears to be total suppression of decree passed in Regular Civil Suit No. 74 of 2003 dated 30.07.2010 by the informant Â‐
respondent no.02 as well as witnesses. By suppression of Regular Civil Appeal and suppression of pendency of Second Appeal before this Court, on
the contrary, respondent no.02 and his son have now come up with a case, that one round of litigation has been started by them by instituting Regular
Civil Suit No. 672 of 2015. Respondent no.02 has not placed on record, copy of the plaint in Regular Civil Suit No. 672 of 2015. He has also not
stated whether any interim relief has been granted in his favour in this specially instituted suit.
13.Thus, when a civil court of competent jurisdiction has given its finding, though it is subjudice in Second Appeal before this Court, yet, possession of
the petitioners over the said land admeasuring 01 Hectare 54 R from Gut No.123 is concerned, that possession will have to be held as legal and valid.
Even respondent no.01 has not stated that whether he had collected the pronouncement of the competent court and other such documents in order to
see whether there is any truth in the SUNIL K. KOTWAL,J.
1.This appeal is directed by the State of Maharashtra against the judgment and order of acquittal passed by Additional Sessions Judge, Udgir dated
07.04.2006 in Sessions Case No.30/2005, acquitting all the accused Nos.1 to 6 of the offences punishable under Sections 302, 304-B, 498-A and 201
read with Section 34 of the Indian Penal code (hereinafter referred to as the “I.P.C.â€) and under Section 3 and 4 of Dowry Prohibition Act.
Respondents are the original accused Nos.1 to 5 respectively.
2.Shorn off unnecessary details, the prosecution case in brief is that, Kavita @ Nikita w/o Venkat Deokate married with accused No.1 on
06.05.2001. She cohabited with accused No.1 and his other family members i.e. accused Nos.2 to 6 at Mauje Deoni (Budruk). At the time of
marriage, dowry of Rs. 2,00,000/- (Rupees Two Lakh), one Hero Honda Motorcycle and 2 Tolas gold were given to accused No.1. Initially the
cohabitation of Kavita @ Nikita (hereinafter referred as the “deceasedâ€) was normal. However, after six months after the marriage, accused
started demanding 2 Tolas gold at the eve of Diwali Festival. That demand was fulfilled. Thereafter for the period of two years everything was
normal. However, thereafter again accused persons started ill treatment to deceased as she was issue-less. Accused persons demanded Rs.25,000/-
from the parents of deceased and in the alternate threatened to perform second marriage of accused No.1. That demand of Rs. 25,000/- was
fulfilled. Even medical treatment was given to deceased and in the result she became pregnant. When the deceased carried seven months pregnancy,
on 04.01.2005 she gave telephonic message to her brothers and mother that accused were ill treating her, and therefore, she should be taken to her
parental home at the earliest.
3.On 05.01.2005, dead body of deceased was found in the bathroom in burnt condition. Accused Dhanraj Deokate submitted A.D. Report (Exh.81) to
Police Station, Deoni. During A.D. Inquiry, inquest panchnama (Exh.57), spot panchnama (Exh.56) were prepared. By that time, the parental
relatives of the deceased were informed about the occurrence. They reached to Deoni at night hours. They expressed doubt about death of the
deceased and insisted for preparation of second inquest panchnama. Therefore, second inquest panchnama (Exh.72) was prepared by the police. Dr.
Sanjaykumar Bagde (PW-8), Medical Officer, Rural Hospital, Deoni performed postmortem examination of the dead body alongwith two more
Medical Officers and opined that cause of death of deceased was as a result of “asphyxia due to strangulationâ€.
4.On 06.01.2005, mother of the deceased namely Kamlabai Pandhre (PW-12) lodged F.I.R. (Exh.78) to Police Station, Deoni. In the result, the
above-said offences were registered against accused Nos.1 to 6. On 06.01.2005, accused Nos.1 to 5 were arrested. During the course of
investigation, clothes of accused Kamlabai and accused Dhanraj were seized. Kerosene can, partly burnt match stick and match box as well as
pieces of burnt clothes of the deceased were seized from the spot. Seized articles were referred to Chemical Analyst for chemical examination.
After completion of the investigation, charge-sheet was submitted in the Court of Judicial Magistrate, First Class, Udgir.
5.Offence punishable under Section 302 and 304-B of I.P.C. being exclusively triable by Court of Sessions, this case was committed to Sessions
Court, Udgir.
6.Charge (Exh.27) was framed against accused Nos.1 to 6 for the offences punishable under Sections 302, 304-B, 498-A, 201 read with Section 34 of
I.P.C. and under Section 3 and 4 of Dowry Prohibition Act. Accused pleaded not guilty and claimed trial.
7.Defence of the accused is of total denial. They contended that after the death of deceased, the parental relatives demanded amount of
Rs.3,50,000/- and on refusal by accused to pay this amount through M.L.A. Khandre, they brought pressure on the Doctor and obtained false
postmortem report.
8.After considering the evidence placed on record by the prosecution, the trial Court pleased to acquit all accused of all the charges. Therefore, this
appeal arises challenging the acquittal of accused Nos.1 to 5 only.
9.Heard strenuous arguments submitted by Mr. R.N. Dhorde, learned Counsel for the respondents and learned A.P.P. for the State.
10.Learned A.P.P. for the State submitted that though Medical Officer Dr. Bagde (PW-8), who has proved postmortem notes (Exh. 70), is constant
on his statement regarding cause of death of deceased due to asphyxia due to strangulation, the learned Trial Court disbelieved such trustworthy
evidence on flimsy ground of undue pressure by one M.L.A. from Karnataka. He pointed out that none of the prosecution witness has admitted that
the said M.L.A. was present in the hospital, nor any witness has admitted the bringing of such pressure by the parental relatives of the deceased on
the Medical Officer. According to learned A.P.P. finding of dead body of deceased having postmortem burns and clear finding of Medical Officer
regarding cause of death due to strangulation is sufficient to hold that the death of deceased was homicidal death.
11.The next limb of the argument of learned A.P.P. is that in the case at hand from the date of marriage of the deceased she died within 7 years as a
result of homicidal death and from the parental relatives of the deceased prosecution has brought on record that the deceased was subjected to ill
treatment by accused for demand of gold and amount of Rs. 25,000/-. According to A.P.P., with the aid of presumption available under Section 113-
B of the Indian Evidence Act prosecution has established guilt of the accused at least for the offence punishable under Section 304-B read with
Section 34 of I.P.C.
12.Next submission of learned A.P.P. is that parental relatives of deceased are consistent regarding payment of dowry of Rs. 2,00,000/- and Hero
Honda motorcycle as well as 2 Tolas gold to the accused at the time of marriage. Therefore, at least offence punishable under Sections 3 and 4 of
Dowry Prohibition Act, 1961 is established against the accused
13.According to A.P.P., demand of dowry was the motive behind murder of the deceased which is established on the basis of disclosure by deceased
before her parental relatives about ill treatment to her by accused for demand of money. He submitted that as dead body of the deceased was found
in the house occupied by only accused Nos.1 to 5 and as no explanation has been furnished by them regarding homicidal death of the deceased, with
the aid of Section 106 of the Indian Penal Code, presumption can be drawn that accused are the culprits. He placed reliance on the case of
“Trimukh Maroti Kiran Vs. State of Maharashtra†reported in (2006 (10) SCC 681), “Patel Hiralal Joitaram Vs. State of Gujrat†reported in
(AIR 2001 SC 2944) and “State of Uttar Pradesh Vs. Ravindra Prakash Mittal†reported in (AIR 1992 (SC) 2045).
14.Learned Counsel for the respondents submitted that on the postmortem notes (Exh.70) nowhere the date of signing the postmortem notes by
Medical Officer is mentioned. No advance death certificate has been placed on record by prosecution. There is inordinate delay in preparation of
postmortem notes because endorsement on postmortem notes shows that it was handed over to Investigating Officer on 04.02.2005 when the
postmortem was conducted on 06.01.2005. He submitted that in this background possibility cannot be ruled out that the concerned Medical Officer
prepared false postmortem notes due to pressure of local M.L.A. and parental relatives of the deceased from Karnataka State.
15.Next limb of the argument of learned Counsel for respondents is that the evidence regarding ill treatment to the deceased on account of demand of
money is vague and inconsistent with testimony of each witness. He pointed out that no evidence is brought on record as to exactly which ornament
was given to the accused at the eve of Diwali.
16.Learned Counsel for respondents submitted that as per prosecution case itself accused Dhanraj Deokate lodged A.D. Report (Exh.81) to Police
Station, Deoni regarding finding of dead body of deceased in the bathroom of his house in totally burnt condition. Learned defence Counsel pointed
out that when accused Dhanraj Deokate reached to his house at 12 noon hours for lunch, that time all the doors of the house were latched from inside
and therefore, with the help of neighbours he had to make entry inside the house by removing tin sheets from the roof of the kitchen room. He also
pointed out that none of the accused was present inside the house when dead body of the deceased in burnt condition was found. Learned defence
Counsel submitted that no witness is examined by prosecution who had seen even any one of the accused near the spot of the occurrence at the
relevant time of the occurrence. Therefore, under Section 106 of the Indian Evidence Act, burden does not lie on accused persons to give
explanations regarding the circumstances, which resulted into the death of the deceased.
17.The last submission of learned Counsel for the respondents is that as initial burden to prove presence of the accused on the spot at the relevant
time of the death of the deceased, is not discharged by prosecution, even the presumption under Section 113-B of the Evidence Act is not available.
He placed reliance on the cases of “Jose Alias Pappachan Vs. Sub Inspector of Police, Koyilandy and another†reported in (2016) 10 Supreme
Court Cases 519, “Tomaso Bruno and another Vs. State of Uttar Pradesh†reported in (2015) 7 Supreme Court Cases 178, “P. Mani Vs.
State of T.N.†reported in (2006) 3 Supreme Court Cases 161, “Vikramjit Singh Alias Vicky Vs State of Punjab†reported in (2006) 12
Supreme Court Cases 306, “Mulak Raj Vs State of Haryana†reported in (1996) 7 Supreme Court Cases 308, “Manjunath Chennabasapa
Madalli Vs. State of Karnataka†reported in AIR 2007 SC 2080, “Narendra Singh Vs State of M.P.†reported in (AIR 2004 SC 3249),
“Dasari Siva Prasad Reddy Vs. Public Prosecutor, High Court of A.P.†reported in (AIR 2004 SC 4383), “Sohel Mehabob Shaikh Vs State of
Maharashtra†reported in (AIR 2009 SC 2702) and “Hem Raj and another Vs. State of Punjab†reported in (2003) 12 Supreme Court Cases
241.
18.We have gone through the above referred Authorities relied on by learned Counsel for both the parties. Following legal principles can be culled out
from these Authorities :-
(a)In appeal against acquittal, if the view taken by trial Court is a possible reasonable view, it will not be justified in reversing the order of acquittal.
The Appellate Court in an appeal against acquittal will not be justified in reversing the order of acquittal unless it comes to the conclusion that the view
taken by the trial Court was wholly perverse or unreasonable and it was not possible to take the view in favour of the accused on the basis of the
evidence on record.
(b)Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and
circumstances are found to be incompatible with innocence of the accused or the guilt of any other person.
(c)Strong suspicion cannot be the basis of conviction.
(d)Where accused and deceased were not last seen together, Section 106 of Evidence Act would have no application.
(e)Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case
has been proved, the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for
explaining the same.
(f)Merely because the deceased died homicidal death and her body was found in the kitchen with postmortem burns, it cannot be said that the said
circumstance by itself would connect all the accused or any one of them with the crime.
(g)By Section 32 (1) of Evidence Act two categories of statements are made admissible in evidence and further made them as substantive evidence.
They are : (1) His statement as to the cause of his death (2) His statement as to any of the circumstances of the transaction which resulted in his
death. The second category can envelope a far wider amplitude than the first category. The words 'statement as to any of the circumstances'' are by
themselves capable of expanding the width and contours of the scope of admissibility. When the word 'circumstances' is linked to 'transaction which
resulted in his death' the subsection casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or
indirect, can also fall within the purview of subsection. As a possibility of getting the maker of the statements in flesh and blood has been closed once
and for all the endeavour should be how to include the statement of a dead person within the sweep of the subsection and not how to exclude it
therefrom. Admissibility is the first step and once it is admitted the court has to consider how far it is reliable. Once that test reliability is found
positive the Court has to consider the utility of that statement in the particular case.
19.With the help of the learned Counsels for both the parties, we have gone through the statements of witnesses and other evidence placed on
record. Admittedly, in the case at hand entire prosecution case is based on circumstantial evidence. Therefore, motive plays very important role in
such a matter.
20.Though the learned A.P.P. contended that demand of money and gold was the motive behind the murder of deceased, from the evidence on record
it emerges that the first demand of gold, at the time of first Diwali Festival of deceased and accused No.1, was immediately fulfilled. It means that
from the date of marriage i.e. from 06.05.2001 upto Diwali Festival i.e. by the end of 2001 the demand of gold was fulfilled. From the testimony of
Balbhim Pandhare (PW-6) it emerges that after the above incident, the cohabitation of deceased with the accused was normal for the period of two
years and only after two years, accused started beating to deceased because she was issue-less and that time accused Ramrao and Dhanraj instigated
accused No.1 Venkat to demand Rs. 25,000/- from deceased for their business. That demand of Rs.25,000/- was also immediately fulfilled by the
brothers of the deceased. According to Rajendra Pandhare (PW-10), in the month of April 2003 the amount of Rs. 25,000/- was paid to the accused
by him and Balbhim Pandhare (PW-6). Thus, till 2003 the demand of money was fulfilled and therefore, there was no question of motive for
committing murder of the deceased in the month of January 2005.
21.From the evidence on record it emerges that at the time of death the deceased was carrying pregnancy of about 7 months. It means that wishes of
the accused to get child from the deceased was also about at the verge of fulfillment at the time of occurrence. When deceased conceived prior to 7
months before the date of occurrence, all expectations of the accused were absolutely fulfilled by the deceased. Therefore, in the month of January
2005 when the incident occurred, accused had absolutely no motive to kill the deceased. Thus, we have no hesitation to hold that in view of the above
circumstances of the case, prosecution cannot establish that at the relevant time of the occurrence accused had any motive to kill the deceased.
22.However, it cannot be ignored that only because prosecution cannot establish motive behind the murder of deceased, that cannot be a sole ground
to extend benefit of doubt in favour of the accused, if otherwise the circumstantial evidence placed on record is sufficient to establish each and every
link of the circumstances which directly connect accused persons with the homicidal death of the deceased.
23.In the case at hand, now first question is to be determined whether death of the deceased is homicidal death, suicidal death or accidental death.
From the A.D. Report (Exh.81) registered on the basis of information given by accused Dhanraj Deokate to Police Station, Deoni it emerges that on
05.01.2005, at about 12.00 noon hours, when accused Dhanraj Deokate went to his house for lunch, that time though deceased was the alone member
present in the house, the doors of the house were latched from inside. Despite his repeated calls as nobody responded, he took the help of his
neighbours and son of his neighbour namely Taufiq climbed on the roof of the house accused persons and he informed that the doors were latched
from inside and no movement is noticed. Therefore, with the help of ladder accused Dhanraj Deokate went on the roof and by staircase entered
inside the house and he opened the main entrance door of the house and allowed his neighbours Govind Bele (PW-2), Bachchemiya Pyare, Aminabai
Pyare to enter inside the house. They found that door of the kitchen was closed from inside and smoke was coming out from the window of the
kitchen. Therefore, Govind Bele (PW-2) climbed on the tin sheet roof of the kitchen room and by removing one tin sheet, son of neighbour namely
Jafar Bachchemiya Pyare managed to enter inside the kitchen and opened the latches of the door of the kitchen room. All of them found that
deceased was lying dead in the bathroom in burnt condition and there was heavy smell of kerosene. Therefore, Dhanraj Deokate submitted A.D.
Report (Exh.81) to Police Station, Deoni.
24.After preparation of spot panchnama (Exh.56) and inquest panchnama (Exh.57) of the dead body, P.I. Shelke (PW-14) referred the dead body to
Rural Hospital, Deoni for postmortem examination. Dr. Sanjaykumar Bagde (PW-8) and other two Medical Officers i.e. Dr. Mithare and Dr.
Deonikar performed autopsy examination of the dead body on 06.01.2005 in between 4.15 p.m. to 6.10 p.m. They found that conjunctiva of the eyes
were congested and tongue was protruded, swollen and dark in colour. Blood was oozing from the mouth and nostril. While proving postmortem
notes (Exh.70), Dr. Bagde (PW-8) has proved that on the skin there was absence of line of redness. The skin was burnt and spilled. The Medical
Officers opined that the burns found on the body of deceased were 'postmortem burns'.
25.Dr. Bagde (PW-8) has proved that (1) there was well defined groove measuring about 2 x 1 x ½ cm situated low down in neck, below thyroid
cartilage, encircling the neck horizontally and completely. Groove was dry hard, extravasation of blood into subcutaneous tissue under the groove was
found. (2) Fracture of hyoid bone was present. There was presence of haemorrhage in the tissues around the site of fracture of hyoid bone. They
also noticed (3) fracture and dislocation of first and second cervical vertebra. According to Medical Officers, all these injuries were antemortem
injuries.
26.Dr. Bagde (PW-8) has also proved that on internal examination he found that larynx and trachea were congested, rings of trachea were fractured.
Both lungs were congested and showed haemorrhagic patches. On cut section dark blood exuded. There was fracture and dislocation of first and
second cervical vertebra.
27.On the basis of above signs Dr. Bagde (PW-8) opined that the probable cause of death was due to “asphyxia secondary to strangulation with
postmortem burnsâ€. He opined that injury No.1 in column No.17 of the postmortem notes was sufficient to cause death.
28.No doubt, from the cross-examination of Dr. Bagde (PW-8) it emerges that he has admitted that line of redness may be absent in case if a person
is weak in constitution and death occurs immediately. However, this admission is of no help to the defence, because postmortem notes' Column No.
10 shows that the body of the deceased was well nourished. Dr. Bagde (PW-8) also conceded with the observation of Dr. Modi that, “it is not
possible to establish either with naked eyes or by histological examination whether burns occurred shortly before death or soon after. Circumstantial
evidence alone will provide the answerâ€. He has also admitted that the differentiation between ante-mortem and postmortem burns may not be
possible in charred bodies. However, these admissions of Dr. Bagde (PW-8) do not affect his opinion that the burns found on the dead body were
postmortem burns for the simple reason that well marked groove low down in neck below thyroid cartilage encircling the neck horizontally and
completely, coupled with fracture of hyoid bone, presence of haemorrhage in tissue around site of fracture of hyoid bone and fracture and dislocation
of first and second cervical vertebra, absolutely ruled out the possibility of ante-mortem burn injuries on the body of the deceased. It is very hard to
accept that after sustaining such fracture and dislocation of first and second cervical vertebra a woman can pour kerosene on her body and she can
set herself ablaze. Therefore, we are fully satisfied that on the basis of trustworthy testimony of Dr. Bagde (PW-8) corroborated by postmortem
notes (Exh.70) prosecution has proved beyond reasonable doubt that death of the deceased was homicidal death due to asphyxia due to strangulation.
29.Mere delay in obtaining the postmortem notes by Investigating Officer and absence of dates below the signatures of Medical Officers, cannot be a
ground to disbelieve this important medical evidence when in the postmortem notes the date and time of postmortem examination is clearly mentioned.
Even obtaining such report under the pressure of one M.L.A. or parental relatives of the deceased is not probable, because no such suggestion has
been given in the entire cross-examination of Dr. Bagde (PW-8). Even no prosecution witness has admitted that any pressure was brought on
Medical Officers to perform postmortem examination. Preparation of second inquest panchnama (Exh.72) at the insistence by parental relatives of the
deceased only indicates the anxiety of parental relatives of the deceased and nothing more. Thus, no other conclusion can be drawn except that the
death of the deceased was homicidal death.
30.Now we have to consider whether the evidence placed on record is sufficient to connect the accused persons with the homicidal death of the
deceased. At the outset we must observe that no evidence is placed on record by prosecution to prove that at the relevant time of the death of the
deceased any one of the accused was present in the house. Prosecution has examined Govind Bele (PW-2), whose house is at the distance of 40 to
50 ft. from the house of the accused. This witness was present when accused Dhanraj Deokate visited the house for lunch and found door of the
house closed from inside. Govind Bele (PW-2) has repeated same story which is mentioned in the A.D. Report (Exh.81) as described above. From
the evidence of this witness, it becomes clear that at the relevant time of the occurrence none of the accused was present at the house where the
dead body of the deceased was found. This witness has also proved spot panchnama (Exh.56) and inquest panchnama (Exh.57). From the evidence
of this witness it emerges that on the call given by accused Dhanraj this witness and other neighbours gathered near the house of accused persons and
they found that doors of the house were closed from inside and therefore, one boy namely Taufiq climbed on the roof of the house and thereafter
accused Dhanraj climbed on the roof and opened the main door by entering inside the house from the steps which were available from the roof of the
house. These persons can made entry in the kitchen room only after removing tin sheet roof of the kitchen room. This evidence of Govind Bele
(PW-2) is of no help to the prosecution to establish presence of any accused on the spot at the relevant time of the occurrence. On the other hand,
this witness has brought on record that none of the accused was present inside the house at the time of occurrence of the incident.
31.Somnath Bhandarshette (PW-3) is the shop owner whose shop is situated near the cloth shop of accused Ramrao Deokate. This witness has also
brought on record that on 05.01.2005 since 8.00 to 8.30 a.m. accused Ramrao and Dhanraj were present in their cloth shop till 12 noon hours. Despite
searching cross-examination by learned A.P.P., nothing could be elicited on record which is sufficient to establish the presence of the accused at their
home at the relevant time of the occurrence.
32.Shobha Malgonda (PW-4) is the maid servant, who used to clean utensils and clothes at the house of accused persons. According to this witness,
on the date of incident in the morning she had seen only deceased and her mother in law in the house. This witness was also declared hostile and
noting could be elicited in her cross-examination despite lengthy cross-examination by A.P.P. On the other hand, this witness has brought on record
that even accused Kamlabai had gone to her agricultural land at the relevant time of the occurrence.
33.Shivaji Vinchure (PW-5) examined by prosecution has also proved presence of accused No.1 in the school on 05.01.2005 from 9.15 a.m. till 12.30
noon hours.
34.Thus, it is evident that no evidence is available on record which remotely indicates that at the relevant time of the occurrence any one of the
accused was present at the house. When no evidence is available to show that soon before the probable time of death of deceased, she was found
inside the house alongwith the accused persons, accused cannot be connected with the homicidal death of the deceased which occurred in the
bathroom of the house of accused. As presence of the accused on the spot at the relevant time of the occurrence is not established, under Section
106 of the Evidence Act onus does not shift on accused to explain the circumstances in which deceased died of homicidal death.
35.Though learned A.P.P. submitted that as the deceased died within 7 years from the date of her marriage, presumption under Section 113-B of
Evidence Act can be drawn against the accused, the evidence on record nowhere discloses that soon before the death of deceased, she was
subjected to ill treatment by the accused for a demand of dowry. For the purpose of Section 304-B of the I.P.C. “Dowry†shall have the same
meaning as in Section 2 of Dowry Prohibition Act, 1961.
“Dowry†means any property or valuable security given or agreed to be given either directly or indirectly â€
(a)by one party to a marriage to the other party to the marriage; or
(b)by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time
after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim
Personal Law (Shariat) applies.
36.Thus, a bare glance at Section 2 of Dowry Prohibition Act makes it clear that to prove that demand of the accused was “dowry†within the
meaning of Section 304-B of the I.P.C., the prosecution must prove that the demand of money or any valuable article shall be in connection with the
marriage of the deceased and accused No.1. However, according to Balbhim Pandhare (PW-6) the first demand of 2 Tolas gold was made at the
eve of Diwali Festival and second demand of Rs. 25,000/- was made after two years from Diwali and that demand was for “business purposeâ€.
Thus, demand of Rs. 25,000/- for business purpose does not fall within category of “dowry†as it has no connection with marriage of deceased
with accused No.1. So also, from the cross-examination of Balbhim (PW-6) it becomes clear that as per practice and custom new clothes and gold
ring etc. are offered at the eve of first Diwali after marriage. Thus, even giving of 2 Tolas gold at the eve of first Diwali cannot be termed as
“dowry†within the meaning of Section 304-B of I.P.C. read with Section 2 of Dowry Prohibition Act.
37.Otherwise also, Balbhim (PW-6), who is real brother of the deceased and who took active part during the entire incidence, has nowhere deposed
that on account of demand of 2 Tolas gold or amount of Rs. 25,000/- the deceased was ever ill treated by accused persons. On the other hand,
Balbhim (PW-6) in his examination-in-chief itself has made it clear that the beating to deceased was started only on the ground that deceased could
not conceive for the period of two years from her marriage. Thus, such type of ill treatment to the deceased cannot become cruelty either within
meaning of Section 498-A or under Section 304-B of the I.P.C. Otherwise also, these all events of demand of gold and money came to an end in the
year 2003 itself because Rajendra Pandhare (PW-10) has made it clear that all the demands of the accused were fulfilled till April 2003. Rajendra
Pandhare (PW-01) has made it clear that after fulfillment of all demands till Apritl 2003 the deceased was treated nicely. Thereafter ill treatment to
deceased was given because only she could not conceive. However, undisputedly deceased became pregnant prior to 7 months from the date of
incident. Thus, since before 7 months from the date of the incident there was no reason or any occasion to the accused to ill treat the deceased for
any other reason. Even Balbhim (PW-6) or Rajendra (PW-10) have not whispered a single word that when deceased became pregnant since
thereafter there was any type of ill treatment to the deceased at the hands of accused. As per prosecution case itself, only on 04.01.2005 on
telephone deceased informed her mother Kamalbai (PW-12) and brother about ill treatment to her.
38.Even Kamalbai (PW-12) has not uttered a word regarding ill treatment to deceased for a demand of gold. No doubt, Kamalbai (PW-12) deposed
regarding ill treatment to deceased for demand of Rs. 25,000/- for extension of cloth business. However, according to Kamalbai (PW-12) after
payment of that amount to the accused, deceased was nicely treated for the period of two years. It is to be noted that Kamalbai (PW-12) nowhere
deposed that accused at any time ill treated the deceased because she could not conceive.
39.Thus, it is clear that after April 2003 the cohabitation of the deceased with the accused was absolutely normal and she was not ill treated in any
manner for any demand by the accused. According to Kamalbai (PW-12), prior to one day before the death of deceased, she talked to deceased on
telephone and that time deceased told her that she was subjected to beating and somebody should be deputed to fetch her to parental home.
However, this statement of Kamalbai (PW-12) is absolutely vague as to who was ill treating the deceased and what was the reason for ill treatment
or beating to deceased. Everything is vague. Therefore, on the basis of such vague and inconsistent statements of these parental relatives of the
deceased, which may be admissible under Section 32 (1) of the Evidence Act, prosecution cannot establish that soon before the death of deceased she
was subjected to ill treatment within the meaning of Section 498-A of I.P.C., for demand of “dowryâ€. Therefore, presumption under Section 113-
B of the Evidence Act cannot be drawn against the accused persons.
40.Regarding other evidence placed on record by prosecution, the testimony of Vitthalrao Patil (PW-9) is mostly in the form of hearsay evidence and
his testimony is not consistent with the testimony of both brothers of the deceased. Even he is contradicting the testimony of his sister Kamalbai (PW-
12) regarding ill treatment to deceased for demand of cash. Therefore, no importance can be given to the evidence of such dubious witness.
41.Shivaji Khondgire (PW-7) is the garage owner from village Janwade. According to this witness, on 04.01.2005 on telephone deceased informed
this witness regarding torture to her and accordingly this witness informed the mother of the deceased. However, testimony of this witness regarding
torture is also vague, because he nowhere named any accused person in relation with torture to the deceased. So also no documentary evidence in
the form of phone bill or other call data has been placed on record by prosecution to prove that really there was such telephonic conversation in
between deceased and Shivaji Khondgire (PW-7) who was not directly related with the deceased.
42.Regarding testimony of Vitthalrao Hanmantrao Patil (PW-11) it is suffice to say that he is not trustworthy witness for the reason that his evidence
is totally in conflict with Balbhim (PW-6) and Rajendra (PW-10) as well as Kamlabai (PW-12) regarding demand of gold and money by accused from
deceased. This witness has not brought on record documentary evidence in the form of telephonic bill or phone call data to prove his telephonic
conversation with deceased as alleged by him. Therefore, evidence of this witness also deserves to be ignored.
43.Another important aspect to be noted is that, though according to Balbhim (PW-6) on 04.01.2005 on telephone deceased informed her mother and
brother that her life was in danger, none of these parental relatives took any immediate step to help the deceased either by making contact with the
accused or by paying visit to the house of accused which was only at the distance of 70 to 80 kms from their village. It is surprising to note that
despite the alleged telephonic talk with the deceased on 04.01.2005 they did not inform the police immediately after knowledge of the death of the
deceased. Even the F.I.R. is lodged by mother of the deceased on 06.01.2005 at about 2.00 p.m. No explanation has been furnished by prosecution
for such inordinate delay in lodging F.I.R.
44.Regarding the payment of dowry of Rs. 2,00,000/- and 2 Tolas gold as well as gift of Hero Honda motorcycle to accused No.1 at the time of
marriage, except bare words of the parental relatives, no documentary evidence such as list of settlement of marriage has been placed on record by
the prosecution. Even none of the prosecution witness uttered a word that at the time of settlement of marriage accused demanded the dowry of Rs.
2,00,000/-, 2 Tolas gold and motorcycle from the parents of the deceased. Therefore, otherwise also, accused cannot be convicted under Sections 3
and 4 of the Dowry Prohibition Act for lack of demand on behalf of accused.
45.It is very disheartening to note that though deceased died in the house of accused Nos.1 to 5 in the most suspicious circumstances, the mystery
regarding the homicidal death of deceased is not resolved by Investigating Officer only due to his negligence during the entire investigation. Though
Investigating Officer Shelke (PW-14) deposed on oath that on 14.01.2005 he seized clothes of accused Kamlabai and on 16.01.2005 he seized clothes
of accused Dhanraj from their person, question remained unanswered as to why the Investigating Officer caused such unreasonable delay in seizure
of clothes of these two accused persons, when they were in his custody since 06.01.2005. Even Investigating Officer (PW-14) is so negligent while
deposing before the Court that he did not whisper a word regarding proper sealing of these clothes at the time of seizure. Therefore, though C.A.
Report (Exh.86) indicates that kerosene residues were detected in the clothes of accused Kamlabai and Dhanraj, on account of delay in seizure and
negligence in sealing of these articles, the prosecution has lost this most important circumstantial evidence which would have been available against
accused Kamlabai and Dhanraj.
46.It is to be noted that as the dead body of the deceased was found inside the house of accused and as medical evidence indicates that deceased was
strangulated by the assailants, it was the duty of Investigating Officer to ascertain exact time of death of the deceased, through Medical Officer (PW-
8) who performed autopsy examination of the dead body. Column No.21 of the postmortem notes (Exh.70) indicates that at the time of postmortem
examination the stomach of the deceased was empty and Column No.11 shows that rigor mortis was well marked and present in the whole body of
the deceased. These two signs indicate that the probable time of death of deceased was within 4 to 6 hours from the time of her last meal. Thus,
probably the deceased was killed after her dinner on 05.01.2005. Had the Investigating Officer ascertained probable time of death through Medical
Officer, he could have pinpointed the assailants of the deceased, who must be from the family of the accused. Thus, due to total negligence on the
part of the Investigating Officer, prosecution could not connect the accused with the homicidal death of the deceased.
47.Investigating Officer did not take pains to get medically examined the suspected arrested accused to ascertain whether any injuries could be found
on the body of the accused which would have been caused at the time of resistance by deceased. So also Investigating Officer did not seize weapon
of the offence, probably a rope by which the deceased was strangulated. No investigation was made by Investigating Officer as to exactly at which
time the accused persons left their house on 06.01.2005. No investigation was done regarding the exact place inside the house where the deceased
was actually strangulated by the assailant. He did not investigate whether the assailants, after commission of the murder, sneaked out from kitchen
room through tin roof and thereafter by staircase through the roof of the house, because as per A.D. report, ladder was available outside the house to
get down from the roof without pointing attention of any outsider. Thus, it appears that the Investigating Officer, while investigating this matter, has
taken every possible care to see that accused would get acquittal in the matter. In the circumstances, though strongest suspicion arises against the
accused persons, in the eyes of law it cannot be substitute for proof beyond reasonable doubt. Therefore, we have to extend benefit of doubt in
favour of the accused persons.
48.In view of the above discussion, after careful consideration of the evidence placed on record by prosecution, we have come to the conclusion that
the view taken by learned trial Court while acquitting the accused by extending benefit of doubt, is possible view and cannot be termed as perverse
finding which call for interference by this Court in this appeal against the acquittal.
49.Before parting with the judgment, we must observe that the case of Trimukh Vs State of Maharashtra (cited supra), relied on by A.P.P., is
distinguishable on facts because in that case the accused was last seen together with the deceased soon before her death and no explanation was
offered in his statement under Section 313 of the Code of Criminal Procedure. Similar was the case of State of Uttar Pradesh Vs Ravindra Mittal
(cited supra). So also in the case of Patil Hiralal Vs State of Gujrath (cited supra) reliable dying declaration of the deceased was available before the
Court, and therefore, on the basis of such dying declaration conviction was upheld. This case can be distinguished as no such dying declaration is
available in the case at hand.
50.Accordingly our conclusion is that the judgment of acquittal of all accused of all the charges recorded by learned trial Court, cannot be interfered as
possible view is taken by the trial Court. It follows that this appeal being devoid of merit deserves to be dismissed.
51.Hence, the following order.
ORDER
Criminal Appeal No. 551 of 2006 stands dismissed.contention of respondent no.02. Merely because some eye witnesses have supported respondent
no.02, it cannot have negative effect on the decree that has been passed by a competent civil court.
14.In order to attract Section 447 of the Indian Penal Code, which prescribes for 'punishment for criminal trespass', we will have to consider what
amounts to 'criminal trespass' as contemplated under Section 441 of the IPC. In order to prove offence under Section 441 of the IPC, the prosecution
should prove (1) entry into or upon property in the possession of another (2) if such entry is lawful, then unlawfully remaining upon such property, (3)
such entry or unlawful remaining must be with intent  (a) to commit an offence; or (b) to intimidate, insult, or annoy any person in possession of the
property. Thus, the Section revolves around possession of a person over the property. Here, in this case, as aforesaid, as per the decree passed in
Regular Civil Suit No. 74 of 2003, respondent no.02 and his brother were permanently restrained from disturbing / obstructing possession of present
petitioner no.01 over the suit property. That means, respondent no.02 and his brother were never in possession of the suit property. Under such
circumstance, ingredients of the offence under Section 441 of the IPC, punishable under Section 447 of the IPC, cannot be said to have been attracted
in this case.
15.Further, for offence punishable under Section 435 of the IPC i.e. 'mischief by fire or explosive substance with intent to cause damage to amount of
one hundred or (in case of agricultural produce) ten rupees or upwards'; the prosecution should prove firstly, offence under Section 447 of the IPC.
When the ingredients of Section 447 of the IPC are not attracted here, the question of attracting ingredients of Section 435 of the IPC does not arise.
Therefore, taking into consideration material in the chargeÂsheet, no offence has been made out. It would be an abuse of process of law, if trial is
attracted to be conducted in this case. The petition is squarely covered under the guidelines given by the Hon'ble Apex Court in the matter of State of
Haryana & others Vs. Ch. Bhajan Lal & others (AIR 1992 SC 604). In the said case, the Hon'ble Apex Court has observed thus :Â"" The following
categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482
CrPC can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an
exhaustive list of myriad kinds of cases wherein such power should be exercised :
(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a case against the accused.
(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section
155(2) of the Code.
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can even
reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and / or where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
16.In the light of above discussion, we are of the opinion that the petition deserves to be allowed.
17.In the result, the criminal writ petition is allowed. The first information report bearing Crime No. I162/2017, dated 13.05.2017, registered with
Rahuri Police Station, District Ahmednagar, for offence punishable under Sections 435, 447 of the Indian Penal Code, is quashed and set aside. So
also, consequential proceedings in Regular Criminal Case No. 194 of 2017 pending before Judicial Magistrate (F.C.), Rahuri, District Ahmednagar,
against the petitioners, are quashed and set aside.
18.Rule made absolute in the above terms.