1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 231 OF 2008 Mohan Ranganathan, Age 48 years, Residing at H.P. Nagar East, Building No.36, Flat No.302, Chembur, Mumbai-74, Jail – Nashik, At present Accused in Nashik Road, Central Prison. .. Appellant (Original Accused) .. Versus .. 1. State of Maharashtra, (Through R.C.F. Police Station, Chembur, Mumbai.) 2. The Senior Inspector of Police, R.C.F. Police Station, Chembur, Mumbai. .. Respondents (Complainant) .......... Shri Sushan Kunjuraman, Advocate for the appellant/accused, Shri J.P. Yagnik, APP for respondent/State. .......... CORAM : A.M. KHANWILKAR & P.D. KODE, JJ. DATED : 15.03.2011 2 JUDGMENT (PER : P.D. KODE, J.) 1. The judgment and order dated 4th March 2008 passed by 2nd Ad-hoc Additional Sessions Judge, Sewri convicting the appellant- accused in Sessions Trial No.303 of 2007 for murder of his wife Geeta on 12th/13th June 2006 and sentencing him to suffer imprisonment of life with a fine of Rs.3,000/- and in default undergoing R.I. for one year is subject matter of present appeal. The said session trial has arisen out of charge sheet filed by PW10- P.I. Suresh Ramchandra Nirmal of R.C.F. Police Station as a result of investigation of C.R. No. 164/2006 registered with said Police Station upon first information report (Exh.33) lodged by PW9- P.S.I. Vasant Nagrale of the same Police Station on 26th June, 2006. 2. The facts in brief regarding said prosecution and conviction are as under : The deceased Geeta- daughter of Rangnathan Chinnatambi- PW3 of Cuddalore District, Tamilnadu had married appellant on 8th June, 1987. After the marriage, the couple was residing at room no.302, Vashi naka, Chembur, Mumbai-74. Rema- PW.7 - a female child was born to them on 22nd July, 1988. Geeta, during her yearly visits to house of her parents, used to complain about ill-treatment and harassment by the appellant. 2.1 PW9 PSI Vasant on night duty on 12th /13th June, 2006 at 3 RCF Police Station had to rush to Shitla Hospital, Chembur, due to receipt of message at about 2.50 hours that a lady by name Geeta brought by her husband-appellant and neighbours for treatment was found to be dead by the Doctors after her examination. PW10 while drawing inquest panchanama Exh.9 of the corpse of Geeta had not noticed any other injury on her person other than teeth mark upon her lower lip. 2.2 The appellant then during enquiry disclosed that his wife was suffering from blood pressure, headache, giddiness and was vomiting. On 12th June, 2006 at 1800 hours he had got her examined from private Doctor DW1 Jyoti Kunjur and had given her Omez and Domestrol tablets as advised and thereafter she had some relief. He had to again called DW1 for examination as at about 22.30 hours Geeta again became unwell. DW1 after examination told that she has been unconscious and should be rushed to the hospital. He had taken her to Inlak Hospital. As accommodation was not available at said hospital, he brought her to Shitla Hospital wherein after examination doctor declared that she was dead. 2.3 PW8 Dr. Sunial Jawale and Dr. Bagul attached with Rajawadi Hospital after post mortem examination of the corpse sent to said Hospital by PW9, had informed cause of death as “Asphyxia due to throttling (unnatural)” and told that written post mortem report would be handed over later on. Siddharth, brother of the deceased who had been from Madras had taken corpse to 4 native place for last rites. The post mortem notes (Exh.25) received from Rajawadi Hospital on 16th June, 2006 revealed cause of death as “Asphyxia due to throttling”. Thereafter father of the deceased PW3, her married sisters Raji Sundaram (PW5) and Sita Maykumar all from Chennai had informed RCF Police Station that appellant had been harassing deceased and had murdered her by throttling. Such information was given by posting letter Exh.17. 2.4 PW9 by narrating such matters lodged first information report against the appellant upon which said crime for the offence of murder was registered at RCF Police Station. PI Suresh PW10 of said Police Station after learning about cause of death from PW9, recorded statement of DW1 Dr. Jyoti who had examined and also accompanied deceased while being taken to Shitla Hospital. PW10 received P.M. Notes (Exh. 25) on 16th June, 2006. PW3 and Sundaram Gopal (PW4), husband of sister of deceased, on 22nd June, 2006 sent telegram to Police Station that the appellant used to ill-treat deceased and had murdered her. PW3 also sent the letter (Exh.17) by post to the Police station casting doubt about the appellant having committed murder of the deceased. 2.5 PW10 after registration of the offence, sealed the house of appellant on 27th June, 2006 when he found that the same was locked. On 28th June 2006 he recorded statements of PW3 and PW4 when they had been to Police Station. He sent ATI Vakhare at Cuddalore, Tamilnadu in search of the appellant. He recorded statements of persons from the office at which appellant was 5 working and so also of Dr. Bhide, who had treated deceased in May, 2006. He recorded the statements of Rema – PW7 on 30th July,2006. He arrested the appellant on 14th August, 2006 when he had been to Police Station after withdrawing application for anticipatory bail preferred by him. 2.6 After completing the investigation, which included drawing of memorandum and discovery panchanama respectively Exh.14 and 35 in presence of panch Radhakrishna PW1 and Dinesh PW2 in respect of voluntary statement made by the appellant of pointing the place in his house at which the deceased have vomited, taking of the photographs of said spot through photographer by removing seal put earlier upon said house by the police and recording statements of said photographer, and so also of Dr.Sachin Arun Taware PW6 doctor from Shitla Hospital, of neighbour of appellant who has accompanied him for taking deceased to hospital i.e. Shriniwas Kolladi DW2 and of one Reddy; P.W.10 submitted the charge-sheet in the Court of Additional Chief Metropolitan Magistrate, 11th Court, Kurla, Mumbai on 25th November, 2006 against the appellant for offence of murder of his wife. 3. After committal of said case to the Court of Sessions, the appellant pleaded not guilty to the charge for the offence of murder at (Exh.3) framed by the trial Court against him on 26th June 2007. The prosecution examined 10 witnesses so far referred at the trial. 6 At trial the prosecution sought permission from court to cross examine daughter of deceased- PW7 hostile on the count of herself having suppressed the truth and after receiving such permission had cross-examined her. The prosecution also placed reliance upon several documents which were prepared during the course of investigation. Out of the said documents inquest panchanama (Exh.9), panchanama regarding sealing of the house of the appellant dated 27th June 2006 at Exh.10, panchanama regarding opening of the said seal and resealing the said house after giving articles of daughter to the appellant and his daughter dated 30th July 2007 (Exh.11) were admitted by the appellant during the course of the trial. 4. The appellant during his examination under Section 313 of Cr.P.C. with regard to the incriminating circumstances appearing in the prosecution evidence put to him stated that evidence of PW3 that deceased during her visits to parental house made complaint of ill-treatment and harassment against the appellant and used to weep was false. He also stated that evidence of PW4 that deceased used to make complaints against him that he was not returning to the house during night hours and he used to consume liquor was false. He also claimed that evidence to such an effect given also by PW5 Raji was also false. With regard to the remaining circumstances put to him, he either admitted the same being true or claimed to be unaware of the relevant facets. 7 The appellant claimed that his father-in-law PW3 has requested him for effecting funeral of the deceased at his native place but he had not agreed and taken the dead body from the house of his father-in- law and had performed last rites at the native place of the appellant. He claimed that due to the same, P.W.3, his brother-in- law P.W.4 and sister-in-law were annoyed and deposed against him. 5. The appellant examined Dr. Jyoti-DW1 and Mr.Kollate Shriniwas-DW2 i.e. the person who had accompanied him to Shitla Hospital while admitting Geeta in support of his defence of false implication. 6. The trial Court after appreciation of the evidence surfaced at the trial came to the conclusion that the prosecution has proved that the appellant committed murder of his wife Smt. Geeta by intentionally or knowingly causing her death by throttling. The trial Court observed that PW3 Ranganathan has explained the cause for occurring of delay in lodging report. Relying upon the decisions pointed out by the prosecution the trial Court accepted contention of the prosecution that Geeta having died while in custody of the appellant, it was necessary for the appellant to explain about occurring of such unnatural death of his wife. Similarly relying upon other decisions pointed by the prosecution, the trial Court accepted contention of the prosecution that mere relationship of the witnesses with the deceased would not be a factor affecting the 8 credibility of their evidence. The trial Court, after considering the evidence of PW8 in light of certain passages from the books of medical jurisprudence and particularly matters recorded in the post- mortem notes (Exh.25), came to the conclusion that there was no reason to disbelieve the cause of death given by PW8 as asphyxia due to throttling and accepted the same. The trial Court ultimately came to the conclusion that the appellant has strangulated his wife between 10.20 p.m. to 10.30 p.m. before he had called DW1- Dr.Jyoti. The trial Court during the reasoning given amongst other also observed that DW1-Dr.Jyoti had tried to save the appellant who was residing in the same building. The trial Court came to the conclusion that the circumstances established by the prosecution evidence were of a clinching nature and the same established a complete chain leading to inference that the appellant alone had committed the murder. In consonance with such a finding arrived trial Court convicted and sentenced the appellant as stated earlier. 7. Mr. Kunjuraman, learned Counsel for the appellant urged that the prosecution case entirely rests upon the circumstantial evidence as there is no direct evidence regarding commission of murder of the deceased. The learned counsel urged that in order to prove the complicity of the appellant in the commission of the offences, the trial Court relied upon fragile circumstances, which were not at all established by cogent and convincing evidence nor the said circumstances even accepted as it is can lead to the 9 inference of guilt of the appellant for the offence for which he is convicted and sentenced. He urged that probably for the said reason the trial Court did not enlist the circumstances which according to trial Court were leading to the inference of guilt of the appellant. He urged that the prosecution evidence failed to establish any motive for appellant to commit heinous crime of murder of his wife and that too after 19 to 20 years of married life with her. 7.1 The learned counsel further urged that the trial Court failed to appreciate interested testimonies of PW3, PW4 and PW5 who were admittedly her relatives. It was urged that even their evidence fails to make out a case of the appellant having motive for committing murder of his wife. It was urged that trial Court failed to appreciate the evidence of daughter of the appellant i.e. PW7. It was urged that the trial Court failed to appreciate that in spite of prosecution being permitted to cross-examine witness called by the prosecution, miserably failed to shatter/discredit the said witness in any manner about the matters spoken by her. It was urged that in view of the same the said evidence is binding upon the prosecution and particularly the admission given by her that she was present with her mother throughout the day on 12.06.2006. It was urged that the evidence of PW7 deserves to be accepted and acceptance of the same makes it impossible to reach conclusion of guilt of the appellant for murder of his wife. 7.2 The learned counsel further urged that taking into 10 account conduct of the appellant in the entire episode, as spelt out from the evidence of PW7, DW1 and DW2 i.e. of immediately taking his wife to the hospital as per advise given by D.W.1 at 10.00 p.m., also runs counter to the inference of himself being culprit. It was urged that considering the reason for which DW1 was called and she has prescribed medicine, her evidence is not liable to be rejected on the count of having not retained the prescription i.e. the flimsy ground on which the the same was discarded by the trial Court. 7.3 He urged that even assuming that deceased has sustained injury in the house of the appellant and the same has resulted in her death, still the evidence fails to make out the case that the appellant was author of the said injury. It was urged that such a conclusion is inevitable as the prosecution evidence fails to make out a case that nobody else had been in said house during the relevant period. He urged that the prosecution evidence fails to altogether exclude the possibility of author of the said injury being somebody else other than the appellant and consequently responsible for the death of the deceased caused. The learned counsel thus urged that the conviction of the appellant ordered by the trial Court is unsustainable on the basis of the evidence on record and the same deserves to be quashed and set aside by allowing the appeal and appellant deserves to be acquitted. 8. The learned APP supported the Judgment and order of conviction passed by the trial Court by stating that circumstances 11 established by the prosecution through the cogent evidence clearly lead to the sole inference of guilt of the appellant as rightly arrived by the trial Court. The learned APP urged that the evidence of PW8 considered along with post-mortem notes prepared by him convincingly establishes that Geeta had died homicidal death due to the asphyxia due to throttling. It was urged that the said opinion given by PW8 had remained unshattered in spite of the cross- examination. It was urged that evidence of P.W.8 amongst other also reveal that during autopsy hyoid bone of Geeta was found fractured. The learned APP urged that the evidence on record clearly excludes all the possibilities of such an injury being caused to Geeta for any other reason other than herself being throttled. He urged that it is undisputed or at least clearly established from the evidence on record that same must have been caused to her in the house of the appellant. He urged that the evidence adduced does not reveal any other person had visited the said house during the relevant period. It was urged that in these circumstances considering the evidence of PW3, PW4 & PW7 the same fully reveals of relation between the appellant and deceased being not at all cordial and the appellant ill-treating her. It was urged that the said facet considered on the backdrop that the evidence does not reveal the other inmate of the said house PW7 having any animus against her deceased mother, considered upon failure of the appellant to give any explanation for such injury being caused to his wife clearly leads to no other conclusion than the appellant being author of the 12 said injury which had resulted in her death. It was urged that considering the nature of the injury sustained by the deceased i.e. apparently not visible to some extent also throws light upon the conduct of the appellant in taking her to the hospital being for covering nefarious act committed by him. He urged that merely because the appellant had taken his wife to the hospital will not absolve him of the liability occurred due to heinous act committed by him. It was urged that there being an inherent natural tendency of a child to save the parent merely because PW7 claimed to be throughout along with her mother will not absolve the appellant from act committed. It was urged that the said recital considered in proper perspective also cannot be said to be conclusive for coming to conclusion of appellant had not throttled his wife. Apart from the same, the same is also belied by the circumstance surfaced on the record of deceased having sustained such injury and admittedly PW7 being unable to unreveal anything about the same. It was urged that since evidence is to be appreciated, the said recital from her evidence would be liable to be excluded and exclusion of the same clearly demolishes the defence theory of evidence of PW7 absolving the appellant. The learned APP urged that considering the act committed by the appellant as established by the evidence and an attempt of the appellant to hide the same clearly reveals that he has been rightly held guilty by the trial Court for offence of murder of his wife. The learned APP thus prayed for dismissing the appeal on the count of the same being without any merit. 13 9. We have given thoughtful consideration to the submissions advanced by both the sides and carefully perused the record. Before taking up the process of examining correctness of the findings arrived by the trial Court in light of submission canvassed, we disapprove the manner in which the trial Court dealt with a trial involving the evidence of circumstantial nature. We are constrained to say so as during various decisions delivered, the Apex Court from time to time observed that in such cases it is absolutely necessary firstly to chart out the circumstances either spelt out from evidence adduced or relied by the prosecution and then to ascertain whether the same can be said to have been convincingly established by evidence surfaced at trial. Needless to add that the decisions clearly rule that only the circumstances firmly established by cogent evidence can be taken into consideration by the court. Thus, after charting out such established circumstances further process to be taken is to determine whether said circumstances within themselves form a complete formidable chain leading to the sole inference of guilt of the accused. We find that in spite of such a settled legal position, the trial Court did not consider the present case in such a manner in as much as the judgment of trial Court fails to depict precisely the circumstances relied rather than determining whether a particular circumstance was established or otherwise. We disapprove such caliver attitude/casual approach of trial Court, more so in respect of a 14 trial involving an offence punishable with capital sentence. 10. In the premises aforesaid, in normal course, on such a count alone, we would have quashed and set aside the judgment and order of conviction passed by the trial Court and remanded the matter to the trial Court for determining the same in accordance with the principles upon which the cases involving the evidence of circumstantial nature are required to be decided. However, in the instant case, the accused being in custody for a period of five years or thereabout, we deem it proper to ourselves re-appreciate the evidence and examine findings arrived at by trial Court, rather than remanding back matter to the trial Court with appropriate directions. 11. Thus, considering the evidence surfaced at the trial and the submission of the learned APP, it can be said that the prosecution has mainly relied upon the following circumstances for establishing guilt of the accused i.e. (i) the deceased met with homicidal death in a night between 12th/13th June 2006; (ii) the injuries leading to such a death were sustained by her in house of appellant in said night in between 10.00 pm to 10.20 p.m. i.e. before she was taken to the hospital thereafter; (iii) the appellant, deceased and their daughter were the only persons in the house of appellant during the said period until DW1 15 Dr. Jyoti and DW2 Kollati Srinivas came in said house. Thus, the appellant had an opportunity to commit the crime; (iv) appellant had probable motive for commission of such a crime; (v) the defence taken by the appellant being found false. 12. After having charted out the circumstances relied by the prosecution now taking up the further process to determine whether the same has been established by the prosecution and in the said process taking up the first circumstance of the deceased having met homicidal death, no serious dispute is raised by the appellant in this regard. The said fact is duly established by the prosecution mainly through the evidence of PW8 Dr.Sunil who along with Dr.Bagwe who had performed autopsy at Rajawadi Hospital upon the corpse of the deceased sent by PW9. The evidence of PW8 with regard to autopsy reveals the following injuries : 1. Abraded contusion at lower lip 2 x 1 x ½ cm. reddish, irregular, edges, oedematous. 2. On dissection of neck, there were contusions over both sides of neck muscles, they were irregular, dark reddish. Contusion over subcutaneous tissue and contusion at post aspect of neck muscles. All contusions were irregular and dark reddish. 3. Greater cornue of hyoid bone. Fracture was seen and displaced. Attached muscles seen contused, irregular and dark reddish. 4. Subcutaneous contusion at manubrium sterni 5 x 4 cms. dark reddish. And same being ante-mortem injuries. PW8 further deposed of having noticed brain showing petecheal haemorrages and congested. He found reddish patchy contusion 16 along with both sides of paratechal and laryangeal muscles on the thorax. He deposed that both the lungs were collapsed, congested and haemoragic patches were seen over surface of the lungs. He also deposed of viscera being preserved and having received report of chemical analyser regarding the same. Thereafter P.W.8 deposed that in his opinion cause of death was asphyxia due to throttling. He deposed that the post-mortem notes (Exh.25) is in his handwriting and bearing his signature and that of Dr.Bagul. 13. The close scrutiny of the evidence of PW8 reveals that though he was extensively cross-examined on behalf of appellant regarding his qualification, about post-mortem report prepared by him, his experience and about the time of setting on rigour mortis, the documents received by him for the purposes of handing over corpse and above certain aspects of post-mortem lividity, nowhere the opinion given by him regarding cause of death has been found shattered during the cross-examination. 14. It is significant to note that PW8 during cross-examination observed that it is not a rule that each person will die instantly in case of throttling. PW8 agreed that in a successful throttling death can occur within few minutes. However, he disagreed that in successful throttling death can occur within 15 to 20 seconds. He admitted of having not seen an abrasion or any injury over the neck. He observed that it is not necessary that in every case of throttling 17 tongue will be clinched between teeth. PW8 though agreed with the observation of Dr. Parekh that the bruises are often found on the front or the side of the neck chiefly about the larynx and above it and the conformation of the neck injuries indicate the way in which the hands have been applied to the neck still none of the said matters can be said to have an effect of not accepting the cause of death given by him. The evidence of PW8 is found well corroborated by the matter stated in the post-mortem note (Exh.25) given by him. Thus, in short the evidence of PW8 and particularly that of cause of death of Geeta given by him