1 213 cr. appeal 1178.04.doc srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1178 OF 2004 Balu Nilkhant Khandare, age 31 years, r/at Chhoti Desai, Post Padle, Tal. Dist. Thane at present Nashik Central Prison, Nashik .. Appellant Vs. The State of Maharashtra .. Respondent Mr. Abhaykumar Apte for the Appellant. Mrs. A.S. Pai, A.P.P. for Respondent/State. CORAM: D.D.SINHA & K.K.TATED, JJ. DATE: 16TH JUNE, 2011 ORAL JUDGMENT: (PER D.D.SINHA,J.) 1. Heard the learned counsel for the Appellant and the learned APP for Respondent/State. 2. This Criminal Appeal is directed against the judgment and order dated 10.05.2004 passed by the Ist Ad-hoc Additional Sessions Judge, 2 213 cr. appeal 1178.04.doc Thane, whereby the Appellant-Accused is convicted for the offence punishable under section 302 of the Indian Penal Code and sentenced him to suffer Rigorous Imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine Rigorous Imprisonment for one year. The Appellant-Accused is also convicted for the offence punishable under section 498-A of the Indian Penal Code and he is sentenced to suffer Rigorous Imprisonment for two years and to pay fine of Rs.500/-, in default Rigorous Imprisonment for three months. Both the substantive sentences were directed to run concurrently. 3. The prosecution case in nutshell is as follows: Deceased Usha was the wife of the Appellant and at the relevant time she was residing with him at village Talepada, Chhoti Desai. On 05.08.2003 the Appellant went to the police station and informed that on 04.08.2003 at about 8 to 9 p.m. when he came back from his job, quarrel took place between him and deceased Usha in respect of the food prepared by deceased and therefore, deceased went to sleep without taking food. In the morning of 05.08.2003 when the Appellant woke up, he noticed that his wife deceased Usha was lying motion less and therefore, he tried to wake her up. However, there was no movement and therefore, the Appellant thought that deceased 3 213 cr. appeal 1178.04.doc was dead, hence, went to the Dombivli police station and gave information about the death of deceased Usha. 4. Complainant P.S.I. Thorve was on duty at Mumbra police station. He received telephone call at 3.50 a.m. On 06.08.2003 from P.S.I. Patil of Dombivli police station that the Appellant informed about the death of his wife. P.S.I. of Dombivli police station sent the Appellant along with constable on duty and P.S.I. Gaikwad to the spot and after some time he also went there. Mumbra Police Station Officer initially registered accidental death and started investigation. Inquest panchanama of the dead body was drawn, at that time police noticed injuries on the person of deceased including burn injuries on her back. Dead body was sent to Chatrapati Shivaji Hospital, Kalwa for post-mortem examination. As per the post-mortem report death was caused due to injury on the head. During the course of investigation, it was transpired that Appellant assaulted deceased with kicks and fist blows and also with utensil holder (sanchi). The Appellant also pushed her on the hot plate with the result deceased Usha suffered burn injuries. Police recorded statements of witnesses (neighbourers and parents of the deceased). Police collected post-mortem report, C.A.Report and after completion of the investigation filed the charge- 4 213 cr. appeal 1178.04.doc sheet against the Appellant for the offences punishable under section 302 and 498-A of the Indian Penal Code. Accused pleaded not guilty and claimed to be tried. 5. In the instant case, prosecution has examined in all ten witnesses, out of which PW1 Machindra, PW5 Dattatray, PW8 Bhagwan and PW10 Deshpande are police officers, PW9 Pathak is the panch witness. The prosecution case, therefore, primarily based on the evidence of PW2 Ananta, PW3 Deepak, PW6 Padmini (mother of deceased) and PW7 Maroti (father of the deceased) as well as evidence of PW4 Dr. Mangesh R Ghadge who has conducted post mortem examination on the dead body of deceased Usha. 6. The learned counsel for the Appellant has submitted that deceased Usha was the wife of the Appellant. PW2 Ananta was the landlord of the Appellant and PW3 Deepak is the son of the said landlord. It is submitted that the evidence of these two witnesses only shows that they have heard some quarrel which alleged to have taken place in the room which was in the possession of Appellant and deceased Usha at the relevant time. The Appellant was the tenant of PW2 Ananta. It is submitted that both these witnesses have neither seen 5 213 cr. appeal 1178.04.doc the Appellant nor the deceased Usha while quarrelling in the said room. They have only heard some voice coming from the room where the Appellant and deceased were residing at the relevant time. It is therefore, contended that it will be highly unsafe to place reliance on the testimonies of these two witnesses. 7. The learned counsel for the Appellant further contended that so far as the evidence of PW6 Padmini and PW7 Maroti is concerned, both the witnesses have stated about ill-treatment alleged to have been given by the Appellant to deceased Usha on account of failure to satisfy the demand made by the Appellant for payment of Rs.50,000/-. It is contended that evidence of both these witnesses i.e. PW6 Padmini and PW7 Maroti is in respect of ill-treatment alleged to have been given by the Appellant and therefore, so far as the aspect of murder of deceased Usha is concerned the testimony of these witnesses are not relevant. The learned counsel for the Appellant has submitted that so far as the evidence of these witnesses pertaining to ill- treatment given by the Appellant to deceased is concerned except the solitary statement that the Appellant demanded Rs.50,000/- about 10 days prior to the incident in question and Rs.10,000/- was alleged to have been paid to the Appellant pursuant to the said demand, there is 6 213 cr. appeal 1178.04.doc absolutely nothing in their testimony to establish and prove the charge for the offence punishable under section 498-A of the Indian Penal Code. It is further contended that the Appellant was married to deceased Usha for more than ten years and there is no evidence whatsoever adduced by the prosecution to demonstrate that the Appellant after marriage either physically or mentally ill-treated his wife. It is further contended that PW6 Padmini being mother of deceased, PW7 Maroti being father of the deceased were highly interested witnesses in the prosecution and therefore, their evidence being of a interested witnesses should not be relied upon. 8. The learned counsel for the Appellant further contended that the evidence of PW4 Dr. Mangesh Ghadge shows that he had performed postmortem examination on the dead body of deceased Usha and found some injuries on dead body of deceased Usha. PW4 Dr. Ghadge opined that probable cause of death of deceased Usha was the head injury. It is contended that the medical evidence by itself is wholly inadequate to establish who was the author of the injury and therefore, the solitary testimony of PW4 Dr. Ghadge can never be the basis for convicting the accused. It is submitted that in the instant case, the Medical Officer has not stated in his evidence whether the 7 213 cr. appeal 1178.04.doc injuries individually or collectively were sufficient in ordinary course of nature to cause death. 9. The learned counsel for the Appellant, therefore, contended that the evidence of the above referred prosecution witnesses does not prove the offence punishable under sections 302 nor 498-A of the Indian Penal Code and therefore, the impugned judgment and order liable to be quashed and set aside. 10.The learned Additional Public Prosecutor however, contended that the evidence adduced by the prosecution of PW2 Ananta and PW3 Deepak coupled with the medical evidence of PW4 Dr. Mangesh Ghadge clearly establishes that on the day of the incident and at the relevant time the Appellant and deceased Usha were present in their house, there was a quarrel which had taken place between them. There was no other person present in the said house and on the next day i.e. on 05.08.2003 the dead body of deceased Usha was found in the said house. The learned Additional Public Prosecutor has submitted that the accused himself went to the police station and informed the police about the death of his wife deceased Usha and also informed that her dead body is lying on the floor of his house. It 8 213 cr. appeal 1178.04.doc is submitted that the Appellant has not given any explanation when his statement was recorded under section 313 of the Criminal Procedure Code to show that the Appellant was not present in the house at the relevant time and in absence thereof, in view of the evidence of PW2 Ananta and PW3 Deepak, the trial court was justified in coming to the conclusion that quarrel took place between the Appellant and deceased Usha on the day of incidence, coupled with the medical evidence adduced by the prosecution as well as other attaining circumstances brought on record by the prosecution, prosecution succeeded in proving the offences of murder as well as ill-treatment meted out to the deceased Usha by the Appellant. 11.The learned Additional Public Prosecutor submitted that evidence of PW6 Padmini and PW7 Maroti establishes the offence punishable under section 498-A of the Indian Penal Code. It is, therefore, contended that the findings of the conviction recorded by the trial court are just and proper and are sustainable in law. 12.Mr. Apte, the learned counsel for the Appellant alternatively contended that even if we presume that though the evidence adduced by the prosecution proves the complicity of the accused in the crime 9 213 cr. appeal 1178.04.doc in question however, the evidence on record does not prove the charge of murder and ill-treatment beyond the reasonable doubt and therefore, conviction awarded by the trial court for the offences of murder and ill-treatment cannot be sustained in law. 13.The learned counsel for the Appellant further submitted that except injury no.1 which is also not of serious nature, other injuries are more or less in the form of contusion, abrasion etc., and therefore, they were minor injuries. It is submitted that the Medical Officer has not stated in his evidence that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death of Usha and in absence thereof it will be unsafe to hold that the Appellant inflicted these injuries with the intention of causing murder of his own wife deceased Usha. 14.It is submitted that the Medical Officer only opined that the probable cause of death of deceased was head injury. The learned counsel for the Appellant has submitted that considering the nature of injuries as well as absence of opinion of the Medical Officer whether those injuries either individually or collectively were sufficient in the ordinary course of nature to cause death, the offence committed by 10 213 cr. appeal 1178.04.doc the Appellant would fall within the ambit of provisions of section 304 Part II of the Indian Penal Code, since the injuries were inflicted by the Appellant only with the knowledge that it is likely to cause death, however, without intending to cause death. The learned counsel for the Appellant has submitted that even as per the opinion of the Medical officer the probable cause of death is only one injury i.e. injury no.1 and there is nothing on record to show that same was sufficient in ordinary course of nature to cause death. The learned counsel, therefore, contended that the finding of the conviction recorded by the trial court for the offence punishable under section 302 of the Indian Penal Code cannot be sustained. 15.The learned Additional Public Prosecutor, however, contended that the injuries inflicted by the Appellant-Accused were nine in number which shows the intention of Appellant-Accused was to kill his wife. The learned Additional Public Prosecutor however, not disputed that the probable cause of death of deceased Usha opined by the Medical Officer is due to injury caused to the head of the deceased. It is also not disputed by the Additional Public Prosecutor that the Medical Officer has not stated in his substantive evidence, whether the injuries sustained by the deceased, individually or cumulatively were 11 213 cr. appeal 1178.04.doc sufficient in ordinary course of nature to cause death. However, it is contended that considering the nature of evidence adduced by the prosecution coupled with the medical evidence, the prosecution in- fact succeeded in proving the charges of murder as well as ill- treatment meted out to the deceased by the Appellant-Accused and therefore, the conviction awarded by the trial court for the offences of murder and ill-treatment punishable under sections 302 and 498-A of the Indian Penal Code is sustainable in law. 16.We have given our anxious thought to the contentions passed by the respective counsel and considered the evidence adduced by the prosecution as well as perused the judgment of the trial court. In the instant case though the prosecution has examined in all ten prosecution witnesses to bring home the guilt of the accused for the offences of murder and cruelty by husband to his wife. However, the case of the prosecution is based on evidence of PW2 Ananta, PW3 Deepak, PW6 Padmini (mother of deceased) and PW7 Maroti (father of deceased) as well as medical evidence of PW4 Dr. Ghadge. The evidence of PW2 Ananta - the landlord of the Appellant shows that the Appellant and his wife deceased Usha were his tenants and residing in the house owned by this witness. There used to be 12 213 cr. appeal 1178.04.doc frequent quarrels between husband and wife. However, this witness was not aware about the reason for quarrel. On 04.08.2003 quarrel took place between the Appellant and his wife at about 4 p.m. The house of this witness is in the neighbourhood of the Appellant, he heard the noise of quarrel. The deceased Usha was telling Appellant not to assault her. The evidence of PW2 Ananta further shows that after some time the quarrel stop. On 06.08.2003 in the morning at about 6 a.m. police showed him the dead body of deceased Usha lying in the room of their house. There were injuries on the head and back of the deceased Usha seen by this witness. The statement made by the Appellant-Accused in the presence of police mentioned by this witness in his evidence is not admissible and therefore, not considered, and that portion of the evidence is discarded being inadmissible. In the cross-examination, PW2 Ananta has admitted that he did not seen the Appellant and his wife when they were quarrelling he also did not intervened in the quarrel. This witness did not go to the police station to lodge the report. Similarly, PW3 Deepak is the son of PW2 Ananta and his evidence reveals that on 04.08.2003 he also heard the quarrel which took place between the Appellant and deceased Usha. This witness heard deceased Usha telling Appellant not to assault her, deceased was weeping. After 13 213 cr. appeal 1178.04.doc some time the quarrel stop. On 06.08.2003 in the morning, police had come to the house of the accused. This witness went there and saw wife of the Appellant was lying there and police told this witness that she was dead. The statement made by the Appellant-Accused to this witness in the presence of police being inadmissible, that portion of the evidence of this witness is discarded. Nothing has come in the cross-examination of this witness so as to affect to the material particulars stated by this witness in examination-in-chief. 17.The evidence of PW4 Medical Officer Dr. Ghadge, who performed post-mortem examination on the dead body of deceased noted as many as 9 injuries which are described in column 17. 18.The Medical Officer has opined that all injuries were anti-mortem and probable cause of death was the head injury sustained by the deceased Usha. He has also opined that the head injury was possible by hard and blunt object like the one used in the crime in question. 19.In the instant case, the trial court relied upon the prosecution evidence regarding production of weapon of offence by the accused as well as seizure of shirt and pant of the accused. As per the C.A. 14 213 cr. appeal 1178.04.doc Report, clothes of the accused and the weapon of offence had blood stains of human origin and therefore, the trial court has held that this part of the prosecution evidence is incriminating and establishes complexity of the Appellant in the crime in question. 20.In the instant case, it is not disputed that the deceased was with the Appellant in the house of the Appellant. It is also not in dispute that both were together through out the night and at no point of time parted company of each other. Dead body of the deceased was found on the next day morning lying on the floor of the house of the Appellant. Since the deceased was in the company of accused through out the night and therefore, the burden of proving the fact how the deceased received injuries or sustained injuries was specially within the knowledge of the Appellant and therefore, as per the provisions of section 106 of the Indian Evidence Act, the burden was on the Appellant to prove this fact. In the instant case, in view of section 8 of the Indian Evidence Act only the conduct of the accused going to the police station is relevant fact coupled with the other evidence of PW2 Ananta, PW3 Deepak, medical evidence as well as other attaining circumstances, the prosecution in our view has succeeded in proving complexity of the accused in crime in question. However, whether the 15 213 cr. appeal 1178.04.doc offence committed by the accused is punishable under section 302 of the Indian Penal Code or under section 304 Part I or Part II needs to be considered. Similarly, whether the prosecution succeeded in bringing home the guilt of the accused for the offence punishable under section 498-A of the Indian Penal Code also requires to be considered. 21.In the instant case, though the deceased had sustained in all nine injuries. However, except injury no.1 which is on the head and was resulted in causing death of the deceased, the other injuries are minor injuries. In the case in hand, the Appellant was charged with the offence of murder punishable under section 302 of the Indian Penal Code and the trial court has held that the prosecution has proved the offence beyond all reasonable doubt and therefore, convicted the Appellant for the offence of murder. It is well settled that the culpable homicide in murder, if the act by which death is caused is done with the intention of causing such bodily injury as the offender knows to be likely to cause death of a person to whom harm is caused. However, in the instant case, on the basis of the evidence adduced by the prosecution, it is difficult for us to hold that the offence committed by the Appellant is punishable under section 302 16 213 cr. appeal 1178.04.doc of the Indian Penal Code and the offence committed by the Appellant falls within the ambit of section 304 Part I of the Indian Penal Code since the injury caused by the Appellant on the head was likely to cause death. 22.So far as the conviction under section 498-A of the Indian Penal Code is concerned, the evidence adduced by the prosecution does not establish that the deceased was subject to harassment with a view to coerce her or her relatives to meet any unlawful demand for any property or valuable security. In the instant case, except the bare statements made by the parents of the deceased that the accused once demanded Rs.50,000/- out of which Rs.10,000/- was already paid to him, there is no other evidence to show that since the date of marriage, the accused was either ill-treating his wife or subjecting her to harassment and in absence thereof, we are of the view that the prosecution has failed to prove the charge for the offence punishable under section 498-A of the Indian Penal Code. 23.For the reasons stated herein above, the conviction of the Appellant for the offence punishable under sections 302 of the Indian Penal Code as well as 498-A of the Indian Penal Code is hereby set aside. 17 213 cr. appeal 1178.04.doc The Appellant now is convicted for the offence punishable under section 304 Part I of the Indian Penal Code and he is sentenced to suffer Rigorous Imprisonment for seven years. The sentence of fine of Rs.1,000/- imposed by the trial Court in addition to the sentence of life imprisonment is reduced to Rs.500/-, in default the Appellant to suffer Rigorous Imprisonment for one month. 24.Criminal Appeal is partly allowed in above terms. (D.D. SINHA, J.) (K.K. TATED, J.)