Dmt 1 Crip361.04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 361 OF 2004 (THROUGH JAIL) Shivaji Yashwant Gawade Convict No. C/2162. At present, undergoing imprisonment at Kolhapur Central Prison, Kalamba, Kolhapur. ..... Appellant. vs. Government of Maharashtra. .... Respondent. Ms. Smita Gaidhani for Appellant. Mr. H.J. Dedhia, APP., for the State. CORAM : P.B. MAJMUDAR & A.A. SAYED, JJ. DATE : 1ST JULY, 2011. ORAL JUDGMENT (PER P.B. MAJMUDAR, J.) : This appeal is directed against the judgment and order recorded by the learned Additional Sessions Judge, Islampur in Sessions Case No. 5 of Dmt 2 Crip361.04 2001. By the aforesaid judgment, the learned Judge convicted the present appellant under Section 302 of Indian Penal Code and awarded imprisonment for life and to pay a fine of Rs. 1,000/- and in default to suffer R.I. for one year. The appellant-accused is also convicted under Section 201 of Indian Penal Code and sentenced to suffer RI for seven years and a fine of Rs. 500/- is also imposed and in default to suffer six months R.I. The appellant- accused is also convicted under Section 498-A of Indian Penal Code and sentenced to suffer RI for three years and to pay a fine of Rs. 200/- and in default to suffer R.I. for three months. The sentences are directed to run concurrently. The parents of the appellant who were also accused persons were however acquitted of all offences. 2. It is the case of the prosecution that the appellant was the husband of deceased Jayashree. The appellant (hereinafter called the accused) was residing with his parents at Kalamwadi, Taluka Walwa, District Sangli. The marriage of deceased Jayashree took place with the accused on 8.5.1998. After the marriage, deceased Jayashree started residing at her matrimonial home alongwith the appellant and her in-laws. Thereafter she resided with her parents for two months and underwent caesarean operation and delivered a child. The accused had came to village Chinchani and he told the complainant Shri Vithoba Maruti Bandgar, the father of the deceased that at Dmt 3 Crip361.04 the time of ‘Balantvidha’ ceremony he must be ready to give gold chain weighing two tolas. The complainant pleaded inability owing to the fact that he was required to spend a large amount towards hospitalisation of Jayashree. The accused thereafter returned back to his home and subsequently after 15 days he came back to fetch his wife Jayashree. Initially the accused came after four days and went back but he gave threat that he will never show his face to the complainant. Thereafter the complainant sent his daughter Jayashree to Kalamwadi. It is also the case of the complainant that on 14.11.1999, Kamal, his wife, went to Kalamwadi at the house of deceased Jayashree with Diwali sweets. On 17.11.1999 at about 7.00 a.m. a relative Ananda came from Kameri to Chnchani in a jeep and told him that Jayashree is having pain due to her stitches and he should accompany him to Kalamwadi. The complainant thereafter hired one jeep and with his brother, brother’s wife and others and went to village Kalamwadi at about 8.30 a.m. On reaching the house of his daughter Jayashree, he found presence of his wife, her sister Mangal and both of them told him that Jayashree was murdered and thereafter she was set on fire by pouring kerosene on her. The complainant saw the dead body of Jayashree and found that her clothes were burnt. There were burn injuries on her face, stomach, hands and legs. The complainant alongwith his wife thereafter went to Grampanchayat office at Kalamwadi. The police had already reached the spot as the brother of the Dmt 4 Crip361.04 accused Jagganath gave report about the death of Jayashree. Initially, the information given by the brother of the accused was registered as an accidental death. The police thereafter prepared a panchanama and sent the dead body for post-mortem. Statements of Vithoba and Kamal were recorded at Kasegaon Police Station and C.R. No. 96/99 was registered for offences under Sections 498A, 302 and 201 read with 34 of Indian Penal Code. In the complaint besides the appellant, allegations were also made against the parents of the appellant, namely, Tanubai Gavade and Yashwant Gavade. The police after investigation filed charge-sheet against all the three accused. The learned J.M.F.C. thereafter committed the case to Sessions Judge for trial. The appellant-accused was arrested by the police on the same day. During the trial, the accused continued to be in jail as he was denied bail. The learned Judge framed the charge against all the accused under Section 498 A, 302 read with 34 of IPC. The accused pleaded not guilty and claimed to be tried. The trial subsequently began against the appellant and the other two accused. 3. During trial the prosecution examined eight witnesses and ultimately after considering the evidence on record, passed an order of acquittal in so far as original accused nos. 2 and 3 are concerned and convicted the present appellant – original accused no. 1 – of the offences Dmt 5 Crip361.04 punishable under Section 302, 201 and 498A of IPC. It is the aforesaid order of conviction which is challenged by the appellant-accused no. 1 by way of this criminal appeal. 4. Ms. Smita Gaidhani, the learned counsel has taken us through the entire evidence led before the trial Court. It is submitted by the learned counsel for the appellant that the learned Judge has committed error in recording the order of conviction against the appellant especially when the charge regarding common intention has not been proved and when the original accused nos. 2 and 3 are acquitted, the appellant was also required to be acquitted. It is further submitted by the learned counsel for the appellant- accused that at the time of incident, the accused was not at home as he has gone to the farm in order to look after the sugarcane in the farm of the accused and he remained in the farm throughout the night on the relevant date. It is submitted by the learned counsel for the appellant that this is not a case of direct evidence but it is the case based on circumstantial evidence and the chain of circumstances is not complete. It is submitted by the learned counsel for the appellant that there is no evidence to prove the presence of the accused at the scene of incident nor it can be said that he was last seen in the company of the deceased on the relevant date. It is submitted by her that when other people are also in the house on the relevant day, it cannot be said Dmt 6 Crip361.04 with certainty that the accused had committed the aforesaid crime. It is submitted by the learned counsel that the motive attributed is also not believable that after the birth of the child the deceased along with the child came to the house of the accused and remained there for a considerable period. It is submitted by her that the evidence of the mother of the girl is not at all believable. It is submitted by her that the inquest panchanama in question is not reliable and it cannot be said to have been proved as panch witness has said in his evidence that after the panchanama was prepared the same was not read over to him and he has not signed the same. 5. Mr. Dedhia, learned APP in his turn submits that the prosecution has proved the case against the accused beyond reasonable doubt. There are strong circumstances by which it can be said that the heinous crime has been committed by the present appellant-accused. It is submitted by the learned APP that as per the medical evidence, the death is due to asphyxia and that after committing murder, the dead body was set on fire in the house. It is submitted that there is absolutely no reason to discard the evidence of the mother of the deceased. It is submitted that looking to the medical evidence as well as the panchanama of the scene of incident it is clear that the appellant-accused has committed murder of the deceased and even though he has pleaded alibi he has not proved the said fact by leading evidence as the Dmt 7 Crip361.04 burden of proving alibi is on the accused. 6. We have heard the learned counsel at length and we have gone through the entire evidence on record. 7. In order to prove its case, the prosecution has examined eight witnesses. The prosecution examined Laxman Anna Sawant as PW-1 at Exhibit-11 who is the panch witness. In his evidence the said witness has stated that on 17.11.1999 he was called by the police to act as panch. He along with other two panchas were called at Kalamwadi at the house of the accused. The dead body of the deceased Jayashree was found there lying east-west in burnt condition. The legs of the dead body were to the east and the head towards west and it was facing the sky. The inquest panchanama was drawn accordingly. In the kitchen there was a brass stove on one side along with match box. The said panchanama was exhibited as Exhibit-13 in the evidence of the said witness. The witness has said that the panchanama was written in front of the house. He has stated that he put his signature on the panchanama in the evening as he had accompanied the dead body for post-mortem. In the cross-examination he says that he did not read the panchanama and it was not read over to him. Dmt 8 Crip361.04 8. The prosecution examined one Nitin Patil as PW-2 who is the panch witness regarding arrest panchanama. The witness has said that the accused was arrested on 17.11.1999 in his presence. Vithoba Maruti Bandgar the father of the deceased Jayshree was examined as PW-3 at Exhibit-17. He has deposed that his daughter Jayashree got married to accused about four years back. After the marriage Jayashree resided at Kalamwadi for one year. Thereafter he brought her at his house during the fifth month of pregnancy for the purpose of delivery. The doctor told him that she was anaemic and thereafter treatment was given to her. She gave birth to a son who was kept in incubator. After nine days of delivery he brought Jayashree to his house along with her son. Subsequently the in-laws of his daughter i.e. accused nos. 2 and 3 came to his house. The accused came subsequently. At that time a demand of gold chain weighing two tolas was made. He showed his inability to give the same. After two days the accused rang him up and said that he will come afterwards to fetch Jayashree. The witness has further stated that thereafter he went with them and returned on the next day and promised Jayashree to come again or to send her mother later on. 9. After Diwali festival his wife went to the house of Jayashree and after residing at the house of the accused, she went to Kameri at her sister’s place. On the relevant day, a jeep came to Kameri at night time to Dmt 9 Crip361.04 fetch Nandu Jankar, brother-in-law of his wife’s sister. The jeep came near Chinchani and at that time the father of Nandu told him that his daughter Jayashree is having pain due to breaking of stitches on her stomach and asked them to go to Kalamwadi along with them. Accordingly, he along with Shivaji Gunda Gawade went at Village Kalamwadi. On reaching there they saw dead body of his daughter and at that time his wife and sister were already present there. Subsequently he gave report to the police station at Exhibit-18. The witness has admitted in the cross-examination that the accused came at the time of naming ceremony and there was exchange of presents. However, he denied the suggestion that the accused brought presents at the time of ‘Balant-vidha’. 10. The prosecution has examined mother of the deceased, namely, Kamal Vithoba Bandgar as PW-4 at Exhibit-19. She has stated that her daughter had delivered a son at the hospital. She has stated that after the marriage the deceased was brought to their house at Chinchani during the fifth month of pregnancy for delivery and she delivered a son at hospital after ceaserian. After 12 days she was brought to her house from the hospital and during that period the accused nos. 2 and 3 visited her daughter at the hospital. The appellant-accused came after two days and he demanded golden chain weighing two tolas. They pleaded inability and he returned Dmt 10 Crip361.04 back. Thereafter he came again after four days and her daughter was sent along with her husband. Then her husband returned back on the next morning. The witness has further stated that after about 10-12 days after Diwali festival she went to the house of her daughter along with sweets. At that time accused no. 1 had gone to Islampur to the house of his sister. The witness stated that she stayed over-night and on the next day the accused came by 5.00 p.m. At that time the accused demanded from her golden chain weighing two tolas and on the next day the accused no. 1 went to attend his work with tiffin box from the front door. He returned back on the pretext that he missed the bus and went to the field. The witness has further stated that she was told by her daughter Jayashree that the accused was ill-treating her and was beating her and she apprehended her murder. She was not provided fresh food. Jayashree had asked her to take her alongwith her. The witness has further stated that thereafter she went to Kameri at the house of her sister Mangal Jankar. She had promised her daughter that her husband will come to Kalamwadi and that she will send her sister next morning. At village Kameri a vehicle came at about 3.00 a.m. in the morning wherein one Shankar Taklya was the occupant. He told them that stitches of Jayashree were broken and she was taken to hospital. She told the said person that they had murdered her daughter. His sister Mangal Nandu and his wife also came in the jeep. They saw the dead body of Jayashree. She was throttled. Kerosene and Dmt 11 Crip361.04 clothes were thrown on her body and she was set on fire. Her tongue was protruding out. The police thereafter recorded their statements. In the cross- examination she has stated that at the time when deceased Jayashree was at their house for treatment, one doctor at Tasgaon was treating her in consultation with the accused. She has also stated in the cross-examination that while Jayashree was at their house, accused was visiting her every 15 days to one month and the naming ceremony was performed happily. She stated that the accused demanded gold chain. She has also stated in the cross- examination that after Diwali when she went to Kalamwadi, she was doing baby sitting and Jayashree was doing household work. Her elder brother-in- law went out for grazing sheep, The accused proceeded at his employment i.e. spinning mill. She denied the suggestion that her daughter was cooking food at 4.00 a.m. and got burnt due to bursting of stove. 11. The prosecution also examined Dr. Ashok Tukaram Shende PW-5 at Exhibit-20. The said doctor in his evidence has stated that on 18.11.1999 one Shivaji Gavade was brought to the hospital with the police letter. The doctor identified the accused stating that he is the same person whom he has examined. The doctor stated that he found the following injuries on his person :- Dmt 12 Crip361.04 1. Linear abrasion over left shoulder, verticle anterior aspect 2 cm Linear. 2. Abrasion over right exilla right mammary region 1 cm in the Linear verticle oozing. 3. Abrasion over left axilla, laternal to left mammary region. Horizontal 1 cm x Linear, The injuries were caused by hard and blunt object within 3 days and were simple in nature. The said doctor had given injury certificate at Exhibit-21. The said doctor has stated that these injuries are possible by nail scratching by a person who is being throttled. 12. In the cross-examination the doctor has also admitted that these injuries were possible by leaves of sugarcane while working in sugarcane field and are also possible by rubbing against hard surface like wall old tree. The medical certificate is on record at Exhibit-21. 13. The prosecution has also examined one Sunil Ramadas Lahigude PW-6 at Exhibit-23. The said witness has carried out the investigation in connection with the crime in question. The said witness in his evidence has stated that while he was attached to Kasegaon Police Dmt 13 Crip361.04 Station as PSI, investigation in C.R. No. 96/99 was handed over to him on 30.11.1999. He sent viscera of the deceased to C.A. Pune with a covering letter. In the cross-examination the witness has stated that A.D. No. 40/99 was registered at Kasegaon Police Station. One Jagannath Yashwant Gavade, brother of accused No.1 had lodged report about death of Jayashree. In the cross-examination he has stated that he has received four bottles from the medical officer. The witness has stated that the inquest panchanama and spot panchanama were drawn during A.D. inquiry. (Initially the complaint was treated as accidental death in view of the report given by one Jagannath Gavade, brother of the accused no. 1). The said witness has stated that he carried out the inquest panchanama and spot panchanama during AD. inquiry. The witness has stated that he has received four bottles from the medical officer. The bottle of the skin was received back and was sent to medical college Miraj. The witness has stated that there was no difficulty for him to send those articles to C.A. but he did not feel it necessary to do the same. 14. The prosecution also examined Dr. Mukund Mahadeo Sadilage PW-7 at Exhibit-27. The witness has stated that on 17.11.1999 he was attached to Rural Hospital, Islampur as medical officer. At that time dead body of Jayashree was brought by P.C Ghorpade for post Dmt 14 Crip361.04 mortem examination. The said doctor carried out the post mortem and he noticed various injuries in column no. 17. According to the said witness, there were 10 burn injuries which were postmortem burns. As per the evidence of the said doctor, he noticed that the tongue protruded through mouth. The doctor has further stated that as the patient was already dead at the time of burning, there was no respiration and, therefore, there was no soot (blackening) inside. The doctor has further stated that there was bluish discoloration of skin at throat on right and left side. They were possible by throttling. The witness has further stated that the cause of death was asphyxia due to suffocation and that suffocation can be caused by gagging nose and mouth by hands or by pillow and suffocation is possible by throttling. The doctor has further stated that burn injuries were not of suicidal type because they were uneven. The doctor has also explained the aspect about difference between ante-mortem and post mortem burn. The doctor in cross-examination has stated that in case of suffocation if the patient is lying on hard surface there will be scratches on his body. In such case bangle of a lady will be broken. In case of alive patient by suffering such burns there is possibility of death. In case of antemortem burns the skin will become blackish bluish and yellowish. The doctor denied the suggestion that he has not noticed smell of kerosene. The doctor denied the suggestion that it is not correct to say that Dmt 15 Crip361.04 viscera is preserved only when the doctor is not certain about the cause of death. It is stated by him that viscera was preserved in this case. The post mortem report is at Exhibit-28 on record. As per the post mortem notes in column no. 17 it is stated that there are no burn over both buttocks. As per item no. 10 there is burn over neck. The cause of death is stated as death is due to asphyxia due to suffocation. 15. One Laxman Mahadeo Borade was examined as PW-8 at Exhibit-31. The witness has stated that on 17.11.1999 he was attached to Kurlap Police Station. C.R. No.96/1999 was registered at the Kasegaon Police Station under Sections 498A, 302 r.w. 34 of IPC at 7.15 p.m. He accepted the report filed by Vithoba Maruti Bandgar at Exhibit-18. The said witness has stated that he recorded the statements of 11 witnesses. 16. The aforesaid is the evidence produced by the prosecution. We have minutely gone through the evidence both oral and documentary. Considering the evidence on record, in our view, it is clear that the deceased died homicidal death. The incident took place in the premises which is a small room. There was no shouting and nobody heard any such shout. That would suggest that the deceased was murdered first by strangulation and thereafter the dead body was set to fire. The theory of Dmt 16 Crip361.04 accidental death is required to be ruled out straightaway as the stove at the scene of incident is found in intact condition and there is no circumstance which suggests any accident which can be said to have happened on the relevant day. The learned counsel for the appellant also further submitted that when other two accused are acquitted, the appellant is also required to be acquitted. In this behalf it is required to be stated that the father of the deceased in his evidence has clearly stated about the visit of the accused at their house when Jayashree was at her parental house. From the evidence it is clearly established that from the date of the delivery the accused was demanding two tolas gold chain. Even he demanded the same when the mother of the deceased went to their house and stayed there for a day. It is true that it has come in the evidence that the said demand was made at the time of ceremony of ‘Balantvidha’. But simply because subsequently the deceased had gone back to in-laws house and resided there for few days, it cannot be said that the accused did not pursue his demand subsequently from time to time. In our view, considering the evidence of the father of the deceased and the mother of the deceased, it is clearly established that the accused used to demand the aforesaid gold article and because of the poor financial condition the demand could not be fulfilled by the parents of the deceased. The father of the deceased in his evidence, has clearly stated that because of his financial difficulties, especially when Dmt 17 Crip361.04 considerable amount has been spent towards the delivery of his daughter, he is not in a position to fulfill the demand of golden chain. The medical evidence clearly shows that the burn injuries were postmortem injuries. From the medical evidence it is clearly established by the prosecution that the deceased was killed first and thereafter the dead body was put on fire. The medical evidence clearly clinches the issue beyond doubt in this behalf. Similarly, theory of accidental death is also ruled out as even the stove was found in order and it was not found in damaged condition at the relevant time. Even as per the doctors evidence the incident of burning has happened after committing the murder. The accused tried to create evidence as if the deceased was preparing meal and at that time accident took place. It is impossible to believe that at such an hour at mid-night there was an occasion to prepare meal. According to the doctor, the death is within three hours