Case: Bhagwan Trimbak Ahirrao & Others Vs. State of Maharashtra

Smt. Sadhana S. Jadhav, J.The appellants herein are convicted for the offence punishable under Section 302 r/w 34 of Indian Penal Code and are sentenced to suffer life imprisonment and to pay fine of Rs.1000/- each i.d. R.I. for 2 years. They are also convicted for the offence punishable under Section 201 r/w 34 of Indian Penal Code and sentenced to R.I. for 3 years and to pay fine of Rs.500/- each i.d. R.I. for 6 months. They are further convicteons have caused homicidal death of Pushd for the offence punishable under Section 498A r/w 34 of Indian Penal Code and sentenced to R.I. for one year and to pay fine of Rs.500/- each i.d. R.I. for 3 months by the Ad-hoc Additional Sessions Judge-II, Malegaon in Sessions Case No.36 of 2005 by Judgment and Order dated 13/4/2004.2. Being aggrieved by the said Judgment and Order, the appellants have filed the present Criminal Appeal. The prosecution case in nut-shell is as follows :(a) Somnath (original accused No.3) is the son of Bhagwan and Kasubai (original accused Nos.1 and 2). Ravindra and Balaji (original accused Nos.4 and 5) are the brothers of Somnath. Somnath was married to Pushpa, daughter of Ramdas Shivale (P.W.1) on 12/5/2004. At the time of marriage, the father of Pushpa had offered Rs.61,000/- to the bridegroom and had performed the marriage at his house i.e. at Mokbhangi, Taluka-Kalvan, District-Nashik. It is alleged that for about 2 to 3 months after marriage Pushpa was treated properly. However, thereafter she was being harassed on one or the other reason. It is alleged that Somnath was demanding money from his father-in-law for purchasing rickshaw and his brother had demanded Rs.50,000/- for reconstructing the old house.(b) On 23rd March, 2005 Bhagwan informed P.W. 1 i.e. Pushpas father that Pushpa had died due to burn injuries. Thereafter P.W. 1 with other relatives reached the matrimonial house of Pushpa at village Saudane at about 5.45 to 6 p.m. They saw that window of the rear side of the house was removed by damaging wall and the gunny bags containing corns were taken out of the house. They saw that Pushpa was totally burnt. The police were conducting panchanama.(c) The dead body of Pushpa was sent for post mortem. Post mortem examination revealed that the cause of death of Pushpa was asphyxial death due to throttling and 100% deep burn injuries which may be post mortem in nature.(d) On the same day at about 4.30 p.m. Ramdas Shevale (P.W.1) lodged a report at Malegaon Taluka Police Station against the appellants. According to him, the accused persons have caused homicidal death of Pushpa due to failure on his part to pay Rs.50,000/- to the appellants/accused. On the basis of his report Crime No.45 of 2005 was registered at Malegaon Police Station against the accused persons for offence punishable under Sections 302, 498A, 304-B r/w 34 of Indian Penal Code.(e) Investigation was set in motion. The accused were arrested. After completion of investigation, charge-sheet was filed on 26th May, 2005. The case was committed to the Court of Sessions and registered as Sessions Case No.36 of 2005.3. The prosecution examined in all 8 witnesses to bring home the guilt to the accused. The original accused Nos.3 and 4 examined 3 witnesses to substantiate their plea of alibi and to prove that Pushpa was being prosecuted in pursuance to the complaint of her cousin Gayatri.4. P.W.1 Ramdas Shevale happens to be the unfortunate father of deceased Pushpa. He has categorically stated that on 23/3/2005 after receipt of information that Pushpa had died due to burn injuries, he rushed to the house of Pushpa alongwith family members and relatives and he saw that Pushpa was lying in a supine condition, that rear side window of the house was removed by damaging wall. In the front door some loaded gunny bags were taken out of house. The police persons were present there and were conducting panchanama. According to him, he had lodged the report at about 11 to 11.15 p.m. The relatives of Pushpa at matrimonial side i.e. the present appellants were not present and hence, funeral of Pushpa was performed at the village of her maternal uncle. Witness is not shattered on the main aspect of the case. Most of the questions put to the witness appeared to be that of the transaction between the father and the other societies pertaining to financial transaction.5. P.W. 1 has admitted that prior to marriage Somnath was working as a driver on the trucks of Ghadge Patil Transport, the head office of the said company is at Kolhapur. P.W. 1 has further admitted that a week before Diwali his son had been to the house of the accused and brought her to her maternal house. She stayed there for about 12 days and thereafter her husband visited his house in order to fetch her. However, at that time husband of Pushpa had not halted in his house. He visited his house at about 11 a.m., had lunch and returned by 3 p.m. and thereafter Pushpa had not visited his house. Husband of Pushpa had not demanded anything from P.W. 1 at that time. He has further admitted that when he reached house of accused, rear side of window of the house was removed from outside by breaking wall. The silt was lying there. He had learnt that the fire brigade van had visited there before them. The police were also present. According to him, the police had not enquired anything with him at that juncture.6. P.W. 2 Ramesh Shevale was the deputy sarpanch of village Mokbhangi. He was summoned by the police to act as a panch. He was a panch for the inquest panchanama which is at Exh. 35. It is clear from the recitals of the inquest panchanama that the body of Pushpa was literally charred.7. P.W.3 Nanaji Ahire is the maternal uncle of deceased Pushpa. He has deposed before the Court that there was persistent demand from the accused persons. Ravindra and Bhagwan had informed that they need money for construction of the house. When he expressed his inability to give money, the accused Ravindra had threatened him of dire consequences. On 23/3/2005 he had received a message from village Mokbhangi that the house of Pushpa was set on fire and Pushpa got burnt in the said incident. He immediately went to the house of the accused. At that time, he had seen mother-in-law of Pushpa and accused Ravindra sitting outside the house, door of house was open and he noticed smoke in the house. He had seen that there was a big hole to the wall. He saw dead body of Pushpa lying in the kitchen. Her tongue was protruding and blood was cozing from her nose. He has admitted in his cross-examination that accused Balaji was running a taxi on Nashik-Pimpalgaon Road. He has also admitted that Somnath was working as truck driver in Ghadge Patil Transport Company. He has also admitted that whenever he went to the market, he used to visit the house of Pushpa. Accused Somnath and Balaji were usually absent from home. This would clearly lead to an inference that since they were working as drivers, they would not be present at home.8. At this juncture, the learned Senior Counsel for the appellants has submitted that this admission on the part of P.W. 3 would by itself substantiate the plea of alibi of accused Somnath and Balaji.9. P.W.4 Sahebrao Ahire is also maternal uncle of deceased Pushpa. P.W.5 Shivman Ahirrao is the panch for spot panchanama. He has been declared hostile.10. P.W.6 Dr. Bhimrao Tribhuvan has performed autopsy on the dead body of Pushpa. He has deposed that upon careful scrutiny he had drawn a conclusion that all burns are post mortem burns. There were no carbon particles in larynx, trachea and bronchi. Both lungs were congested, heart was empty, large vessel was empty. He opined that she must have died within 2 to 4 hours after taking last meal and 18 to 20 hours since time of post mortem examination. According to him, the final cause of death was asphyxia due to throttling and therefore, although there were 100 per cent burns, it had no reaction on any of the parts of the body. He has further opined in the cross-examination that most of the part of the dead body was found charred. He did not find any external marks on throat. In case of severe burns almost all vascular network below the skin goes damaged. When vascular network is damaged in case of severe burns, there is possibility of rupture of arteries and small vesicles giving rise to bleeding. It is applicable to ante-mortem burns only. Due to deep burns most of the body was evaporated. Blisters occur on skin in case of burns because of collection of fluid below the skin.11. The learned Senior Counsel has argued that the doctor had not sent any part of the skin or body for histopathological examination to ascertain as to whether the burn injuries were anti-mortem or post-mortem and therefore, the opinion should not be taken into consideration. However, the doctor has candidly stated that on the basis of several findings such as not finding carbon particles in Trachea, lungs etc. it can be established that the burns were post-mortem burns and therefore, the said submission cannot be considered.12. P.W.8 Anna Kedar was the PSI at Control Room, Malegaon. On 23/3/2005 he had received a telephonic information from one Nivrutti that the daughter in law of accused Bhagwan Ahirrao had died due to burn injuries. On the basis of the said information he had registered A.D. No.18 of 2005. He had gone to the scene of offence. He had noticed that Pushpa had died due to burning in the dwelling house. He referred the body for post-mortem to Wadia Hospital, Malegaon. He had scribed the report at Exh. 32 and on the basis of the said report, he had registered C.R. No.45 of 2005. He had taken over the investigation. From Fulewadi he had brought father in law and mother-in-law of deceased to the police station. At that time Bhagwan Ahirrao had also lodged a report alleging therein that on 23/3/2005 at about 1 p.m. he had lunch alongwith his wife and daughter-in-law Pushpa and thereafter, he and his wife had gone to their agricultural land. Since there was a weekly market on that day, they returned home by 2.30 p.m. When they came home they saw smoke emitting from their house and many people had gathered there. He tried to push the door but it was locked from inside and therefore, people had poured water from the window which on the rear side of the house. The people had removed the window and had entered the house and then opened the door from inside.He has further stated that he alongwith his wife and son Ravindra were standing outside the house and at that time the maternal uncle of Pushpa and others had assaulted him, his wife and his son Ravindra. The said report is at Exh. 60. It is clear from the recitals of Exh. 60 that the accused Nos.3 and 5 were not at home or in the close proximity of the house and therefore, they were spared by the relatives of Pushpa. P.W. 8 has further deposed before the Court that fire brigade van had reached before him to the spot. He has further stated that in his presence fire fighter employees extinguished the fire to the kitchen room. Hence, recitals of Exh. 60, to the extent that people had extinguished the fire by throwing water from the rear window is falsified. There are lapses on the part of the Investigating Officer. He had not taken photographs of the scene of offence, especially in respect of removal of window. He had not investigated the whereabouts of Balaji on the day of incident till 24/3/2005. He has not visited the office of Ghadge Patil Transport at Dhule and Mumbai to trace the whereabouts of the accused Somnath. The accused Nos.3 and 5 were therefore, constrained to examine defence witnesses in order to substantiate their plea of alibi.13. The accused Nos.3 Somnath has examined Bhojraj Amrutkar who was working as clerk in Ghadge Patil Transport Company in the Dhule office of the company. D.W 1 Bhojraj has deposed before the Court that accused No.3 was initially working as cleaner on the truck and later on he started working as a driver. From 21/3/2005 to 24/3/2005 accused No.3 was on duty on truck bearing registration No.MH-09-L-5102 as driver. His duty has commenced on the said truck on 21/3/2005 at 8 pm. The said truck was sent from Dhule to Bhiwandi. D.W.1 has tendered the records of the office and on the basis of the records has deposed before the Court that the truck had reached Bhiwandi on 22/3/2005 at 11.30 a.m. Truck had capacity of 9 tons. 61 quintols were unloaded at Bhiwandi. Thereafter 8 quintols parcel articles were loaded from Bhiwandi. The truck had departed from Bhiwandi on 22/3/2005 at 2.30 p.m. for Mumbai. The truck reached standard Octroi Center of Mumbai on 22/3/2005 at 3.25 p.m.. It then proceeded to Ray Road after paying octroi charges. The truck halted there on that day. On 23/3/2005 the truck was sent to Haffkin Institute. At about 1.45 p.m. the truck reached godown and office of the company at Ray Road and it departed for Nashik at 4.05 p.m. The truck reach Bombay Naka Nashik on 24/3/2005 and halted there during night hours as the octroi could not be paid on that day. After paying octroi on 24/3/2005 at 10.45 p.m. the truck reached at the office of the company at Satpur Nashik at 10.45 a.m. At Satpur 46 quintols were unloaded and then it started for Nashik at 12.15 p.m. and reached Dhule office at 5 p.m. D.W.1 was present in the office when the truck reached at Dhule. He has tendered the original trip summary report to the Court which is marked at Exh. 78.14. We have perused the said report and we do not find any reasons to doubt the genuineness of the entries made therein. At Exh. 76 D.W. 1 has tendered the attendance record of the drivers. The attendance sheet was sent to the main office. It is signed by G.B. Mane. D.W. 1 has identified the signature of Mr. Mane. According to D.W. 1 the drivers working on the vehicles of the company are identified by numbers which are treated as code numbers. Before the name of accused Somnath truck number as 5102 is mentioned. In the cross-examination the prosecution has not been able to shatter the defence witness. Instead this witness has stated in the cross-examination that if the code number referred in front of the name of the drivers is tallied with office record, full name of the same person can be traced out. That the truck on which Somnath was appointed as a driver, S.C. Patil was appointed as assistant driver as well as cleaner.15. D.W.2 Amjad Shaikh is running motor garage under the name and style "Genuine Car Services" at Wadala Road Nashik. According to him, he was acquainted with the accused Balaji since 3 to 4 years prior to the incident. On 23/3/2005 Balaji visited his garage with vehicle of Mr. Kailash Jejurkar which he was running. He has deposed that on 22/3/2005 accused Balaji remained at garrage overnight and stayed in the vehicle because the vehicle had reached his garrage in late hours and therefore, he was not able to attend repairs of that vehicle. According to him, on the next day i.e. on 23/3/2005 he had opened the car for repairs. The repair work was going on for about 3 hours. Mr. Kailash Jejurkar had visited the garrage at about 12.30 p.m. and thereafter D.W.2, Balaji and Kailash had gone to the market to purchase spare parts. They returned to garrage at about 2.30 p.m. The work of repairs was in progress upto 6.30 p.m. He had then taken the vehicle for wheel alignment and returned to the garrage at about 7.30 p.m. and he then handed over delivery of the vehicle to accused Balaji. The witness has not been shattered in cross-examination. He has produced the bill at Exh. 83. He has denied the suggestion that such bill was prepared at the instance of the accused. The Apex Court in the case of Dudhnath Pandey v/s. State of Uttar Pradesh reported in AIR 1981 SC 911 has held that"Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses."In the present case, both the defence witnesses have tendered documentary evidence to substantiate that the accused No.3 and accused No.5 were in the company of D.W. 1 and 2 respectively at the time when the incident had occurred. Falsity of defence cannot take place of proof of facts which the prosecution has to establish. A false explanation could at the most be an additional circumstance if other circumstances unerringly point towards the guilt of the accused. In the present case, the prosecution has failed to establish that accused Nos.3 and 5 were physically present in the close proximate distance of the scene of offence i.e. their residential house.16. D.W.3 Damodar Nimkar is examined by the other accused. D.W. 3 is P.I. at Kalvan. Paternal uncle of Pushpa namely Dadaji Shevale had lodged a report on 22/11/2004 alleging therein that some anonymous calls were made to his daughter Gayatri and they suspected that deceased Pushpa was responsible for the same and hence, Pushpa was called for interrogation. Being fed up of the same, she has committed suicide in the house. The said defence would not appeal to any prudent man and therefore, it deserves to be discarded. The defence taken by one accused cannot be treated as evidence against the co-accused as the statement made by one accused is of no value against his co-accused nor can it be used to fill in the gap in the case of prosecution.17. From the above discussion, it is clear that-(i) On the day of incident accused Nos.3 and 5 were not at home and they were on their duty at a far of distance.(ii) Deceased Pushpa was in custody of accused Nos.1, 2 and 4.(iii) The presence of accused Nos.1, 2 and 4 is established by their own report which is at Exh. 60. Although it cannot be considered as substantive evidence, it can be safely held that a false plea taken by the accused would be an additional circumstance against the accused.(iv) The witnesses have categorically stated that when they reached the house of the accused, they saw accused Nos.2 and 4 sitting outside the house. Section 106 of the Indian Evidence Act contemplates that "when any fact is established within the knowledge of any person, the burden of proving that fact is upon him." It is the case of the accused that Pushpa had lunch with them in the afternoon at about 1 p.m. and thereafter they do not know as to how the house got fire.(v) The post mortem notes clearly indicate that the burns sustained by Pushpa were post mortem burns and the cause of death is "death due to throttling". Therefore, it was incumbent upon the accused Nos.1, 2 and 4 to give a plausible explanation about the death of Pushpa. There is no inconsistency in the evidence adduced by the prosecution and therefore, it can be safely held that accused Nos.1, 2 and 4 have failed to discharge the burden upon them cast by Section 106 of the Indian Evidence Act.18. We therefore, hold that accused Nos.3 and 5 have substantiated their plea of alibi by leading cogent and consistent evidence. However, original accused Nos.1, 2 and 4 are guilty of the offence punishable under Section 302 and 201 r/w. 34 of Indian Penal Code. All the accused are acquitted of the offence punishable under Section 498A r/w 34 of Indian Penal Code, as the prosecution has failed to establish that Pushpa was illtreated and harassed at the hands of any of the accused persons.

Decision:
1[ds]17. From the above discussion, it is clearOn the day of incident accused Nos.3 and 5 were not at home and they were on their duty at a far of distance.(ii) Deceased Pushpa was in custody of accused Nos.1, 2 and 4.(iii) The presence of accused Nos.1, 2 and 4 is established by their own report which is at Exh. 60. Although it cannot be considered as substantive evidence, it can be safely held that a false plea taken by the accused would be an additional circumstance against the accused.(iv) The witnesses have categorically stated that when they reached the house of the accused, they saw accused Nos.2 and 4 sitting outside the house. Section 106 of the Indian Evidence Act contemplates that "when any fact is established within the knowledge of any person, the burden of proving that fact is upon him." It is the case of the accused that Pushpa had lunch with them in the afternoon at about 1 p.m. and thereafter they do not know as to how the house got fire.(v) The post mortem notes clearly indicate that the burns sustained by Pushpa were post mortem burns and the cause of death is "death due to throttling". Therefore, it was incumbent upon the accused Nos.1, 2 and 4 to give a plausible explanation about the death of Pushpa. There is no inconsistency in the evidence adduced by the prosecution and therefore, it can be safely held that accused Nos.1, 2 and 4 have failed to discharge the burden upon them cast by Section 106 of the Indian Evidence Act.18. We therefore, hold that accused Nos.3 and 5 have substantiated their plea of alibi by leading cogent and consistent evidence. However, original accused Nos.1, 2 and 4 are guilty of the offence punishable under Section 302 and 201 r/w. 34 of Indian Penal Code. All the accused are acquitted of the offence punishable under Section 498A r/w 34 of Indian Penal Code, as the prosecution has failed to establish that Pushpa was illtreated and harassed at the hands of any of the accused persons.