spb/- 1 J-A402-04.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 402 OF 2004 Atul Ramchandra Sawal ... Appellant. Age-28 yrs, (as on the date of incident) (Org.Accused) Res: Shrivastav Chawl, Room No.6, “B” Ward, Janata Colony, Gandhi Nagar, Jogeshwari (E), Mumbai. (At present lodged in Kalamb Jail) V/s. The State of Maharashtra ... Respondent. --- Mr. V.R. Haldankar for the Appellant. Mr. Y.S. Shinde, APP for the Respondent -State. ----- CORAM : P. V. HARDAS & M.N.GILANI,JJ. DATE : 30th MARCH, 2011. M.N. GILANI, J. 1 This appeal has been filed by the accused-appellant, questioning the judgment and order dated 20th November, 2003 passed by the learned Additional Sessions Judge, Mumbai in Sessions Case No. 407 of 1996, whereby, the accused was convicted for the offence punishable under section 302 of the Indian Penal Code and was sentenced to suffer R.I. for life and to pay fine of Rs.5,000/-, in default to suffer further R.I. for two months. 2 Briefly stated, the prosecution case is : Complainant–Ganesh is the resident of Sonar Chawl, Gandhi Nagar, Jogeshwari (W). Deceased, Vanita Narayan Pitale is the sister of the complainant. She was residing with the complainant. The accused was also residing in the same locality. He was on visiting terms with the complainant and was acquainted to the deceased. The accused used to spb/- 2 J-A402-04.sxw take chance of meeting the deceased whenever the latter used to be alone in the house Their frequent meetings culminated into intimate relationship. This was not liked by the complainant. In the course of time, a marriage of the deceased was proposed with one Mr. Sane, a resident of Jogeshwari, Mumbai. The accused learnt about this and in his own manner intervened. This resulted in breaking of the marriage proposal of the deceased with Mr. Sane. 3 On 05.09.1995 at about 3 p.m., the deceased was alone in the house. The accused went to the house of the deceased and inflicted knife injuries on her person. Shrieks of the deceased attracted the neighbours. After assaulting the deceased, the accused consumed Tik-20 poison and was found lying on the bed. The police were informed. The deceased was carried to Cooper Hospital, where she was declared dead on admission. The accused was also admitted to the hospital as a case of poisoning. The statement of the complainant was recorded by the police. The said statement was treated as FIR and on that basis C.R. No. 171/1995 under section 302 of the IPC was registered. After holding inquest, the dead body was sent for postmortem examination. During the course of investigation, the blood stained shirt on the persons of the accused was seized. At the scene of occurrence the blood stained knife was found, which was attached and later on sent to the Chemical Analyst for examination. The postmortem examination revealed that the death of the deceased was due to haemorrhage due to multiple injuries on the vital parts. The medical officer opined that the injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause death and were possible by the weapon like knife, attached from the scene of occurrence. On completion of the investigation, the spb/- 3 J-A402-04.sxw chargesheet was submitted before the Metropolitan Magistrate, 44th Court, Andheri, Bombay. The learned Metropolitan Magistrate then committed the case to the court of Sessions. 4 The charge of the offence under section 302 was framed against the accused to which the accused pleaded not guilty and claimed to be tried. The prosecution examined ten witnesses. The defence examined four witnesses. The learned Additional Sessions Judge held that on 05.09.1995, the deceased died homicidal death on account of injuries sustained by her. After scrutinizing the evidence of the prosecution witnesses, the learned Additional Sessions Judge held that the chain of circumstances pointing out to the guilt of the accused have been proved by the prosecution beyond reasonable doubt. Accordingly, he convicted the accused as indicated above. 5 The learned counsel for the accused-appellant contended that : the learned Additional Sessions Judge committed error in appreciating the evidence brought on the record. Although, the chain of circumstances pointing to the guilt of the accused have not been proved, the learned Additional Sessions Judge wrongly convicted the accused. The defence theory is that when the accused went to the house of the deceased and opened the door, he saw the deceased in badly injured condition and when he tried to give her support, she collapsed in the Veranda of the house. He therefore, submits that the learned Additional Sessions Judge committed error in appreciating the evidence and treating inculpatory circumstances as incriminating to the accused. The learned Additional Sessions Judge ought to have appreciated that the accused was not duty bound to explain as to how the deceased sustained homicidal injuries or suicidal injuries. On the contrary, when the accused found the spb/- 4 J-A402-04.sxw deceased in an injured condition, he was shocked and decided to end his life by consuming Tik-20. The learned Additional Sessions Judge ought to have appreciated this exculpatory conduct of the accused which speaks volumes about love and affection which he had for the deceased. This rules out the possibility of the accused committing murder of the deceased. It is further submitted that the learned Additional Sessions Judge wrongly discarded testimony of the defence witness while erroneously believing the prosecution case. He, therefore, prayed for quashing and setting aside the judgment and order of conviction and sentence passed against the accused. 6 The learned APP supported the findings recorded by the learned Additional Sessions Judge. According to him, the circumstantial evidence brought on the record is clinching and decisive. The circumstances proved by the prosecution unerringly point out to the guilt of the accused and therefore, the learned Additional Sessions Judge was perfectly justified in convicting him for the offence punishable under section 302 of the IPC. 7 On perusal of the evidence brought on the record, the circumstances relied upon by the prosecution can be set out as under : i love affair/an intimate relationship between the accused and deceased. This was not liked by the family members of the deceased. ii settlement of the marriage of the deceased with another boy. iii the accused not tolerating the fact of deceased tying knot with the person other than the accused. iv visit of the accused in the house of the deceased on the day of occurrence i.e. on 05.09.1995. v shrieks of the deceased attracting the neighbours and the neighbours rushing to her house. vi the neighbours rushing to the house of the deceased spb/- 5 J-A402-04.sxw and finding the deceased lying in the Veranda with bleeding injuries on her person. vii at the same time, the accused consuming poison and found lying on a cot in the house of the deceased. viii the medical evidence suggesting that the accused had consumed Tik -20 poison. ix homicidal death of the deceased. x finding of knife at the scene of occurrence and the recovery of the blood stained shirt from the person of the accused. xi finding of human blood of group A-B on the shirt of the accused, which is the blood group of the deceased and human blood on the knife. 8 Now, we shall dwell upon the evidence, oral as well as documentary adduced by the prosecution and the defense and then shall set out relevant circumstances that stand proved and then shall address the issue of drawing possible inference deducible from the proved circumstances. 9 PW-1 Ganesh, brother of the deceased, is the first informant. He deposed about acquaintance of the accused with his family members and also with the deceased. From his evidence it is undisputed that the accused was on visiting terms with his family and then involved in an intimate relationship with the deceased. This was disapproved by him. He also suspected the role of the accused in breaking the marriage proposal which was settled between the deceased and one Mr. Sane. 10 On the date of incident PW-1 Ganesh had his meals in his house at about 2.30 p.m. and then went out to the nearby place. At that time, the deceased was alone in the house. At about 3 p.m. to 3.15 p.m., PW-2 Shubhangi, his neighbour came to him and disclosed that the deceased was lying in the Varanda in an injured condition. Immediately, he reached to the house and saw the deceased lying in the Varanda with bleeding injuries. He also saw the accused lying on a cot which was in his house. spb/- 6 J-A402-04.sxw Thereafter, he went to the police station in an autorikshaw and brought the police to his house. The police shifted the deceased and the accused to Cooper Hospital. Except disputing role of the accused in breaking marriage proposal between the deceased and Mr. Sane, the evidence of this witness went unchallenged. 11 PW-2 Shubhangi, who is house wife and the neighbour of the deceased was, as usual, present in the house. She deposed that at about 3 p.m., the deceased had visited her house and enquired about her sister -Geeta. Since Geeta was not in the house, the deceased went back to her home. After about 15 minutes of this, she heard cries like “run-run” and “save- save”. She rushed to the house of the deceased and found her lying in the Varanda with bleeding injuries on her person. She also saw the accused lying on a cot in the house. Therefore, she rushed to call PW-1 Ganesh. She also spoke about the deceased and the accused having love affair and she had seen them roaming together. As regards breaking of a marriage proposal, her evidence is hearsay and the same will have to be kept out of consideration. From her mouth, the prosecution wanted to bring on record that after the incident, the accused attempted to hide in the house. This part of her testimony is denied by the accused. Even otherwise also on a close scrutiny this appears improbable. She further deposed that after she brought PW-1 Ganesh to the scene of occurrence, she saw the accused lying on a cot in the house. This is corroborated by PW-1 Ganesh and even not denied by the accused and appears to be correct factual position. 12 PW-3 Sarita is another neighbour of the deceased. On 05.09.1995 at about 2.30 p.m. she had returned to the house. After some time she had heard about the shouts and screams. She alongwith other neighbours spb/- 7 J-A402-04.sxw ran to the house of the deceased, where she saw the deceased lying in the Varanda in a pool of blood and at that time PW-1 Ganesh arrived there. Thereafter, the Police came to the scene of occurrence and shifted the deceased and the accused to the hospital. Her cross- examination is directed to show that she was not present in the house at the time of the incident. We do not see any reason to discard her testimony. She explained in detail about her daily routines which she used to follow. This makes her presence, in the house at the relevant time, probable. Even otherwise also whatever she has deposed to, is not contrary to the defence. PW-4 Hemant and PW-5 Shtrughansingh who are panch witnesses did not support the prosecution case except admitting their signatures on the panchanama. Therefore,we do not attach any importance to their testimony. 13 PW-6 Surekha is the other neighbour of the deceased. She deposed about the intimacy between the deceased and the accused. She had seen the accused visiting the house of the deceased on many occasions. Her evidence that because of the accused writing a letter to the family of a boy with whom the marriage of the deceased was settled, being hearsay, is inadmissible. Her evidence on the point of the incident is that she had heard hue and cry coming from the house of the deceased. Therefore, she rushed to the scene of occurrence and saw the deceased lying in the Varanda with multiple bleeding injuries on her person. She also saw the accused lying on a cot inside the house. It was suggested to her that the deceased and the accused were having a love affair. In fact, she deposed to this effect in her examination-in-chief. Then she was confronted with her statement before the Police, wherein, she had stated that she had heard about quarrel between the accused and the spb/- 8 J-A402-04.sxw deceased. In our opinion, this is insignificant. 14 PW-7 Dr. Rajaram was attached to the Additional Coroners’ Court, Juhu, Mumbai. He conducted autopsy over the dead body of the deceased on 06.09.1995 in between 11.30 hours to 12.30 hours. He found following injuries on her person : External injuries - A) I.W. 5cm. X 1.5 X cavity deep X oblique single edged on right infra mammary region in middle clavicular line 7-8 space. B) I.W. 3x5x3 cm. x S.D. x 2 x 1 x S.D. (Entry) (Exit) through and through on right elbow. C) I.W. 2.5 x 0.5 x cavity deep x oblique single edged 4 x 1 x cavity deep x obliquely single edged on left para vertebral region T9-T8 region. D) I.W. 2 x 1 x M.D. Arm on right loin. E) I.W. 1 x 0.5 x cavity deep x obliquel x single edged on right infra scapular region (9th space). Internal injuries - 1) Left lung was pierced by injury no.3 hevely to haemothorax 1.5 lit. blood and clots. 2) Liver was pierced by injury no.1 and 5 leading to haemopertonium 1. 5 ltrs. clots and bloods. PW-7 Dr. Rajaram was specifically asked as to whether the injuries on the person of the deceased could be self-inflicted. This he answered in negative. In fact, injuries on the right elbow, on left para-vertebral region and on right infra scapular region cannot be a self inflicted injuries and as such PW-7 was right in opining that injuries found on the person of the deceased cannot be self-inflicted. According to him the death was because of haemorrhagic shock due to multiple injuries. He also opined that injuries were sufficient to cause death. Postmortem report proved by him is at Exh. 19. He was shown the knife -Article 2. It is his version that injuries found on the body of the deceased are possible with this kind of weapon. There is no challenge to the evidence of this witness. spb/- 9 J-A402-04.sxw 15 PW-6 Dr. Simmi Krishnan deposed about admission of the accused as an indoor patient to the Cooper Hospital on 05.09.1995. He was discharged on 11.09.1995. It was a case of poisoning by consumption of a Tik-20. In her cross-examination it is elicited that the history given at the time of admission of the accused in the hospital was of consumption of poison. This is also not disputed by the accused. 16 PW-9 Ramakant is the investigating officer. He deposed about PW-1 coming to the Zuhu Police Station and complaining about the accused assaulting his sister with knife. PW-9 Ramakant along with PI- Shelar immediately went to the spot and saw the deceased lying with multiple injuries in the Varanda of the house and the accused was lying on a cot inside the house. Both were unconscious. The police shifted them to the Cooper Hospital. On admission, the deceased was declared dead. On the basis of the complaint Exh. 9 lodged by the PW-1 Ganesh, an offence was registered. He had held inquest Exh. 7 over the dead body. Clothes on the person of the accused were also seized under panchanama Exh. 23 and they are Articles 3 and 4. He then visited the spot/scene of occurrence. From the spot he seized knife, broken glass bottle under panchanama Exh. 16. In the cross-examination, he was questioned about the accused lodging complaint against PW-1 Ganesh. This witness expressed ignorance. PW-10 Dattatraya was PI at the Meghwadi Police Station. He completed investigation by recording statement of the witnesses, sending articles to the chemical analyst, receiving reports of post-mortem examination and also reports from chemical analyst. Articles were sent to chemical analysts under forwarding letter Exh. 25 and C.A. reports are at Exh. 26(collectively). 17 The factum of seizure of the knife from the spot, blood stained spb/- 10 J-A402-04.sxw coming on the shirt of the accused are not disputed by the defence. 18 Now, we shall advert to the defence witnesses. DW-1 Shailesh deposed that the accused and the deceased were having a love affair. In fact this is also the prosecution case. The next defence witness DW-2 Sunil deposed that on the date of the incident he was in the house and heard shouts like “run-run”. Then he went in-front of the house of the deceased. The door of the house was closed. The shouts were coming from inside. Thereafter, he saw the accused coming from the opposite direction. The conduct of this witness in not going close to the house of the deceased is unnatural. By reading his evidence as a whole, he appears to be a got up witness, probably, cited to prove that before reaching of the accused to the house of the deceased, she had already got injured. In the cross-examination, he admitted that when police called him to act as a panch- witness in this case, he did not disclose anything. This again makes his testimony unreliable. He, categorically, stated that on the request of the accused, he deposed in the case. When he was put questions in the re-examination, which in fact should not have been allowed, he denied his version and stated that the accused did not request him to depose in the case. 19 The third defense witness is PW-3 Usha. She resides in Janta colony, Sonar Chawl, which is on the back side of the house of the deceased. According to her she had seen the accused in the house of the deceased on many occasions. On the date of the incident, she was in the house, busy doing household work. Then she heard screams of the deceased. The deceased was calling her by uttering the name “Usha” and hence she rushed to her house. She saw the deceased lying in a pool of blood with multiple injuries on her person. PW-2 Shubangi also came spb/- 11 J-A402-04.sxw there. In the cross-examination, she clarified that the deceased was lying in the Veranda whereas the accused was lying on a cot inside the house. She guessed that the accused had consumed poison. Immediately, thereafter, the Police arrived. She admitted that the accused used to threaten the deceased since she was intending to marry another boy. She also admitted that the accused wanted to break the marriage proposal of the deceased with another boy. It is therefore, obvious that the evidence of this witness instead of helping the defence, proved the case of the prosecution. The fourth witness is DW-4 Arun, who deposed that on the date of the incident he was returning to his house, after attending the school. It was about 3 p.m. He heard screams of the deceased like “Usha, run-run”. He did not pay any attention and thereafter, came across the accused. He asked the accused to look into the matter. The story put-forth by this witness is similar to that put- forth by DW-2 Sunil. The conduct of both these witnesses in not paying any heed to the screams of the deceased is unnatural. Their evidence that they had seen the accused coming from somewhere and they asking the accused to look into the matter is again unnatural. In cross- examination DW-4 Arun admitted that for the first time and before the court, he disclosed about he having had seen the accused on the road on the day of occurrence. This was not disclosed by him either to the Police or to anybody else. On its face, the testimony of DW-2 Sunil and DW-4 Arun appear unreliable. We have no hesitation to observe that both are got up witnesses and the learned Additional Sessions Judge was right in discarding their testimony. 20 During the recording of the statement under section 313 of the Code of Criminal Procedure, various incriminating circumstances were spb/- 12 J-A402-04.sxw put to the accused. He has given affirmative answers to many of those circumstances and lastly put forth his defence. 21 After having discussed the evidence in detail, we are of the view that the prosecution has succeeded in proving the following circumstances: i) Accused and the deceased were involved in an intimate relationship. This was not approved by the family members of the deceased. ii) Few months before the incident, marriage of the deceased was fixed with some other boy and later on this could not be materialized. iii) On 05.09.1995 at about 2.30 p.m. PW-1 Ganesh had taken meals and went outside. At about 3 pm. the deceased had been to the house of the PW-2 Shubangi. That means, till 3 p.m. there was nothing unusual and the deceased was alive. iv) At about 3.15 p.m., the neighbours heard screams of the deceased and gathered at the scene of occurrence. They saw the deceased lying in the Veranda with bleeding injuries and also saw the accused lying on a cot in the house. v) After seeing the deceased in an injured condition, the accused kept silence. He then consumed poison. vi) The deceased died homicidal death because of injuries on the vital parts. Injuries on her person were not self inflicted. vii) The seizure of knife from the spot, which was found stained with human blood. viii) The blood stain of group AB found on the shirt of the accused. This is the blood group of the deceased. 22 In the statement recorded under section 313 of Cr.P.C. at Exh. 28 the accused stated “when I reached to the house, I saw the door of the house closed. I knocked the door. There was no response. Therefore, I pushed it. When I opened the door, I found Vanita was standing in badly injured condition. She was alive. When I tried to move her, her body came on my person. I could not control her. She fell down in the spb/- 13 J-A402-04.sxw Veranda. At that time PW-2, PW-6 were proceeding from near Vanita’s house. Thereafter, I entered Vanita’s house and closed the door. I did not put a latch. I started thinking. I could not control the shock. I picked up Tik-20 bottle and consumed it. I fell on the cot. The bottle was in my hand. I do not know beyond this.”. 23 From the explanation offered by the accused, it is crystal clear that when he reached to the house of the deceased, she had not started screaming. On the contrary, the accused was required to knock the door. When there was no response, he pushed the door. After the door was opened, Vanita fell on his person and then fell in the Veranda. Ex-facie, this explanation has been offered to explain the blood stain coming on the shirt of the accused. 24 After close scrutiny of the circumstances proved by the prosecution and after considering defense theory, following inference is deducible : that the accused and the deceased were in an intimate relationship, which was not approved by the family members of the deceased. They were looking for her marriage alliance with somebody else. This was disappointing situation for the accused. High level of frustration made the accused to believe that “If I can't, nobody else should”. This feeling of frustration in the mind of the accused provoked him to take extreme step. He, therefore, made preparation to kill the deceased and then to end his own life. There is strong probability that he carried with him the bottle of poison. After accomplishing first part, he consumed Tik-20 and lay down on a cot. Explanation of