- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPEAL NO.517 OF 1992 1. Sadashiv Ananda Matale, ) Aged about 48 years, ) Occupation : Agriculturist, ) 2. Sou.Kaushabai Sadashiv Matale,) Aged about 42 years, ) Occupation: Agriculturist, ) and Household. ) 3. Mohan Sadashiv Matale, ) Aged about 22 years, ) Occupation : Agriculturist, ) All resident of Kamatwada, ) Taluka and District Nasik. ).. Appellants ( Org.Accused ) Versus The State of Maharashtra ).. Respondent -- Shri M.S.Mohite, Advocate for the Appellants. Smt. S.D.Shinde, APP for the Respondent-State. -- CORAM : SRI R.M.S.KHANDEPARKAR & SRI A.A.SAYED, JJ DATED : 30TH JANUARY, 2008 ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) 1. Heard. This appeal arises from the judgment and order dated 21st September, 1992 passed by the - 2 - Additional Sessions Judge, Nashik, in Sessions Case No.99 of 1992 and by the said impugned judgment and order, the appellants are held guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and are sentenced to suffer life imprisonment and to pay a fine of Rs.500/- each, and in default, to suffer further rigorous imprisonment for one month each. The appellants have been also convicted for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code and on that count they are sentenced to suffer rigorous imprisonment for three years each and to pay a fine of Rs.500/- each, and in default, they have to suffer further rigorous imprisonment for one month each. The appellants are however acquitted of the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code. 2. The prosecution case is that one Sulochana @ Shobha, who was the sister of Madhukar, PW-2, was married to Mohan, the accused No.3. The appellant Nos.1 and 2 before the Trial Court are the in-laws of the said Sulochana. It is further case of the prosecution that at the time of marriage the parents of Sulochana had paid the sum of Rs.10,000/- to the accused No.3 Mohan as the Dowry. Even after the - 3 - marriage, the parents of Sulochana paid a sum of Rs.3,000/- towards the price of clothes and stitching charges thereof. After the marriage, Sulochana was not being treated well and was harassed by the appellants on account of insufficient dowry given at the time of marriage and this fact was disclosed by Sulochana to her parents and P.W.2 on her visit to her parents’ house on 4 to 5 occasions between 3rd May, 1990 to 14th July, 1990. It is the case of the prosecution that Sulochana used to complain about ill treatment to her by the appellants including the physical assault. It is also the case of the prosecution that the accused were alleging that she was involved in illicit relations with some strangers. 3. On 16th July, 1990, Madhukar, P.W.2, was informed by his mother that one Tukaram Tajanpure had informed her that Sulochana had been missing since that day, and therefore, he proceeded in search of his sister at various places and as she could not be located even at her matrimonial house, he approached the police station on 17th July, 1990 to lodge a report. Further, a written complaint was lodged on 18th July, 1990. On 19th July, 1990, the police could locate the dead body of Sulochana in a well situated at a distance of about one furlong from her - 4 - matrimonial house. It was the case of the prosecution that all the three accused in the course of harassment to Sulochana caused her death within the period of three months from the date of her marriage, and therefore, they are liable for punishment under Sections 302 and 498-A read with 34 of the IPC, and on completion of the investigation the police filed the charge-sheet accordingly. 4. The prosecution examined six witnesses in support of its case. Shri Bhimrao Abji Ahire, was the Panch for inquest panchanama and was examined as the P.W.1. Madhukar Baburao Porje, brother of the deceased Sulochana was examined as the P.W.2. Sharad Ramchandra Bachhav, P.I. as the P.W.3, Daulat Sampatrao Deshmukh, P.S.I. as the P.W.4, Dr.Sunil Mahendralal Shah, as the P.W.5 and Sompuri Raghopuri Gosavi, P.S.I. being Investigating Officer as the P.W.6 were also examined. The documents comprised of panchanama, post-mortem report, etc. were exhibited in evidence by consent of the accused. 5. The Trial Court on the analysis of the evidence on record held that the prosecution has failed to establish the case relating to the ill treatment or cruelty to Sulochana and that therefore, - 5 - there was no case in support of the charge in relation to the offence under Section 498-A of the Indian Penal Code, and hence acquitted the accused in relation to the said offence. However, the Trial Court convicted the appellants under Section 302 of IPC read with Section 34 thereof. Hence the present appeal. 6. The learned advocate appearing for the appellants taking us through the evidence recorded during the trial submitted that there is absolutely no evidence produced by the prosecution to establish the chain of events which could reveal the sole possibility of involvement of the accused persons in the death of Sulochana. In fact, according to the learned advocate for the appellants, there is absolutely no evidence to disclose that the accused or any one of them was involved in causing death of Sulochana. Referring to the medical evidence in respect of the death of Sulochana, the learned advocate submitted that the same discloses that the death was possible on account of fall from the height of 10 ft. or so and as a result of injuries to Cervical-1 and 2 having sustained on account of such fall. The testimony of Doctor clearly rules out the possibility of death by strangulation. Added to this, there is clear admission on the part of the - 6 - Investigating Officer that in the course of his investigation, some of the witnesses had disclosed to him that Sulochana was seen going towards the well, wherein her body was found, to answer nature’s call on 16th July, 1990 at 1.30 p.m.. Further that one Dr.Gharate had informed the Investigating Officer that Sulochana was under his treatment about 8 days prior to the incident, and added to this, the Panch for the scene of offence had clearly deposed that the well wherein the body of Sulochana was found was then found surrounded with congress grass having the height of 3 ft. and a tree inside the well. The pancha has also stated in his testimony that some stones of parapet wall were fallen in the well and the existence of well could not be noticed till one could reach near the well. Taking into consideration this evidence, according to the learned advocate for the appellants, possibility of fall of Sulochana in the well while she had gone to answer the nature’s call as well as sustaining of injury to Cervical 1 and 2 could not be ruled out and considering the testimony of Doctor, the fatal injury to Cervical - 1 and 2 might have resulted in the death of Sulochana and further that in the facts and circumstances brought on record such a conclusion is inevitable. As no water was disclosed either in stomach or lungs, it was not a case of - 7 - drowning and there is the clear opinion in that regard by the doctor. He further submitted that the prosecution did not examine any of the witnesses who had informed the Investigating Officer about the fact that the deceased was noticed going to answer nature’s call on 16th July, 1990 at about 1.30 p.m. nor has been examined the Doctor Gharate, and there was no explanation for non-examination of those witnesses. Referring to the testimony of PW 2, it was sought to be contended that it is thoroughly un-reliable as there was lot of improvement by the witnesses over the statement in complaint which was lodged with the police and there is no explanation as to why the allegations which are made in the course of testimony were not disclosed to the police while lodging the complaint. Besides, there is no evidence other than his testimony in respect of various allegations made by him in the course of deposition before the Court. 7. The learned APP, on the other hand, submitted that the death had occurred within 2 and 1/2 months from the date of marriage and the fact that the accused No.3 had accepted Rs.10,000/- as the Dowry at the time of marriage is clearly established by the evidence on record. Being so, there is no cogent reason for suspecting the testimony of PW 2 regarding - 8 - the allegations pertaining to the ill-treatment and grievances made by the appellants regarding insufficient dowry. Drawing our attention to the post-mortem report and particularly clause 13 thereof, it was sought to be contended that the tongue of the deceased was found protruding and therefore there is sufficient ground to suspect involvement of the accused in the death of Sulochana. She further submitted that the defence had not been able to discredit the testimony of PW 2 in the course of cross-examination and therefore merely because all the facts were not narrated in the complaint, that by itself cannot be a justification to discard the testimony of PW 2. She has also submitted that there was no immediate reaction on the part of the appellants inspite of the fact that Sulochana was found missing and report in that regard was lodged only on the next date i.e. 17th July, 1990 though she had been missing from 16th July, 1990. 8. The impugned judgment discloses that the appellants have been held guilty of the offence punishable under Section 302 of the Indian Penal Code essentially on the ground that the accused failed to lodge report about missing of Sulochana on the date on which she was found missing inspite of the fact that - 9 - she was all throughout in the company of the accused persons being their family members and secondly because in the absence of external injury being found on the body of Sulochana, the possibility of Sulochana having fallen in the well and consequently having suffered fracture is ruled out. Thirdly the sole testimony of PW 2 prior to the death of Sulochana is quite convincing and reliable and fourthly in order to avoid panchanama in relation to the murder of Sulochana, the appellants had thrown the dead body of Sulochana at a distance of one furlong from the house of the accused persons. On these four grounds, the Trial Court has held that the appellants are guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 9. Perusal of the testimonies of the witnesses clearly establish that till 1.30 p.m. of 16th July, 1990, Sulochana was seen by some of the persons while she was going to answer nature’s call. Undisputedly, the Investigating Officer had recorded the statements of these witnesses. However, none of those witnesses have been examined in the Court. No explanation is forthcoming as regards the failure on the part of the prosecution to examine any of those witnesses. - 10 - 10. The testimony of P.W.6 Sompuri Gosavi, the Investigating Officer, also discloses that at the relevant time Sulochana was under the treatment of one Doctor Gharate and this fact was revealed by the said Doctor to the Investigating Officer. Yet the said Doctor was not examined nor there was any explanation in that regard. 11. The evidence on record also discloses that the well wherein the body of the deceased was found is situated at a distance of a furlong from the house of deceased and the appellants. It further establishes that the well was then found surrounded with congress grass having grown to the height of 3 ft. There was also a tree grown in the said well. It was also noticed that some of the stones of parapet wall of the well were found fallen in the well. What is pertinent to note that the fact which has been established by the evidence through the testimony of panch for the scene of offence of panchanama is that the existence of well could not be noticed till the panchas had reached near the well. This evidence on record, as rightly submitted on behalf of the appellants, sufficiently establishes that if a person had gone to answer nature’s call towards the said well, there was every possibility that he could not have noticed the - 11 - existence of the well till he had reached near the well or perhaps even till he had fallen in the well as some of the portions of parapet wall of the well had already collapsed in the well. It also discloses that in case of fall of a person in such a well, there was every possibility of suffering injury to cervical - 1 and 2 which could result into death as there was a full grown tree in the said well. Undisputedly, the well was not in use and was in a dilapidated condition. 12. It is also pertinent to note that when the dead body was located in the well, the description in respect thereof in the panchanama reads "her deadbody is to float in the well in upside down position". The panchanama further discloses that "the depth, water level and length is measured. It’s length is 20 feet and water level from ground to water is 6 feet depth from water level to bottom is 17 feet." 13. The testimony of Sharad Bachhav, PW-3, discloses that the information regarding the body of a girl having been noticed in the well was received by the police station at Satpur on 19th July, 1990 from one Shri D.G.Patil. No person by the said name has been examined only nor any reason has been disclosed - 12 - for his non-examination. The testimony of Sompuri - P.W.6 also discloses that there were construction activities going on in D.G.P.Nagar locality which is near to the place where normally the ladies used to go to answer the nature’s call whereas the place where the concerned well exists is situated on the other side of Nala and is away from the construction activities. 14. The testimony of Dr.Sunil Shah, PW-5, read with post-mortem report reveals that the injury to cervical-3 is sometime fatal whereas an injury to cervical- 1 and 2 is always fatal and such an injury can be caused if one falls from the height of eight to ten feet on some projecting substance. Undoubtedly, he has also said that in such a case, there would be some corresponding external injury to the body. But at the same time, the Doctor has also clarified that he did not notice any water in the stomach and lungs of the deceased, and therefore, there was no case of drowning. He has further stated that due to fracture to cervical-3, respiration would stop. He has also stated that if a person was given a push all of sudden without his knowledge then the injury of a type of fracture to cervical -3 could cause. - 13 - 15. Sum total of above evidence is that the deceased was seen going to answer the nature’s call on 16th July, 1990 at about 1.30 p.m. and her body was found in the well in that area on 19th July, 1990. Undisputedly, the investigating agency could find the witness who had disclosed that the lady was seen going to answer the nature’s call on the relevant day and time. It is not the case of the prosecution that at the relevant time, she was seen in the company of any of the appellants or that any of the appellants was seen anywhere near the scene of offence nor the prosecution has been able to establish any traces having been found at the site which could reveal any of the accused having gone near the well either at the relevant time or any time thereafter. It is pertinent to note that the well is situated at a distance of one furlong from the house of the appellants. There are about six tenants occupying the house of the appellants. The testimony of PW 6 also reveals that the area is not totally secluded area, otherwise some of the persons would not have seen the lady going towards the said area to answer the nature’s call. In such circumstances, there is absolutely no evidence on record even to suggest remotely the possibility of any of the appellants having gone near the well during the period from 16th July, 1990 till 19th July, 1990. The - 14 - possibility of death by strangulation had been ruled out by the testimony of Doctor. It is not also the case of drowning. At the same time, the Doctor in his statement has categorically said about the death having caused on account of injury to the cervical. He has also clearly opined that the injury to the cervical could cause instant death. The situation in loco reveals the possibility of one falling in the well without knowledge of the existence of a well and further such fall could be on the tree in the well which could result in fatal injury. Taking into consideration these evidence on record and there being neither direct evidence nor other circumstantial evidence led by the prosecution in support of the involvement of any of the appellants in the alleged act of murder of Sulochana, we find that the findings arrived at by the Trial Court regarding the involvement of the appellants in the death of Sulochana being totally unwarranted and uncorroborated by the evidence on record. Mere absence of corresponding external injury in a situation in which the body was found, could not be a justification to draw a conclusion about causing the death of Sulochana by the appellants. The panchanama clearly reveals that the body of Sulochana was found in the well in upside down position and at the same time there was no - 15 - water found in stomach and lungs of the deceased. According to the Doctor’s testimony the body might have been in the water for about less than 48 hours but definitely more than 24 hours and de-composition of the body had already started. The prosecution has not brought on record anything regarding the timing of the death. 16. In the circumstances narrated above, therefore, on mere suspicion of involvement of the appellants in the alleged murder of Sulochana cannot be sufficient to hold them guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 17. The point regarding failure on the part of the appellants to lodge a missing report undoubtedly is a relevant factor. It is a matter of record that missing report regarding Sulochana was lodged by the appellants on 17th July, 1990 at about 1.45 p.m. though she was found missing from 16th July, 1990. However, the testimony of PW 2 himself discloses that the appellant No.1 had gone to his house in search of Sulochana and to inform her parents that she had gone to answer the nature’s call but thereafter she had not returned home. In other words, the appellants had - 16 - informed the parents of the deceased on 16th July, 1990 itself that the deceased had not returned to their house after having gone to answer nature’s call, and in that regard, they had also gone to her parent’s house to inquire whether she had come to their house. This discloses an effort on the part of the appellants to search the deceased on 16th July, 1990 itself. The fact that the deceased had gone to answer the nature’s call at about 1.30 p.m. on 16th July, 1990 finds corroboration from the statements to that effect by some of the witnesses to the Investigating Officer in the course of investigation. At the same time, as already pointed out earlier, the appellants did lodge the missing report to the police on 17th July, 1990. If the appellants had knowledge about the death of Sulochana on 16th July, 1990 itself and they had intention to suppress any of the alleged acts on their part in relation to the death of Sulochana, certainly they would have lodged the missing report on 16th July, 1990 itself. The appellants normally would not wait till 17th July, 1990. After making necessary efforts to search Sulochana and after having failed to locate her, the appellants did lodge the missing report to the police. This conduct of the appellants, in such circumstances, to our mind, appears to be quite normal. It does not create any suspicion about - 17 - their involvement in the alleged act of causing the death of Sulochana. The very fact that the appellants had immediately approached Sulochana’s parents to inform about missing of Sulochana and further she having not returned till the night of 16th July, 1990 that they lodged missing report to the police station immediately, discloses a normal conduct on the part of the family members of Sulochana. It is also pertinent to note that the house of the appellants and that of the parents of Sulochana are situated at a distance of 7 km. from each other and one can reach to each of the houses even on bicycle. Considering the same, mere failure to lodge missing report on 16th July, 1990 cannot be construed as the incident which would lend support to the finding about the alleged involvement of the appellants in causing death of Sulochana. 18. Undisputedly, the Trial Court has found that the prosecution has not led any evidence regarding the charge punishable under Section 498-A of the Code of Criminal Procedure. 19. Perusal of the testimony of Madhukar, PW 2, nowhere discloses any material which could reveal involvement of any of the appellants having - 18 - contributed towards death of Sulochana. The testimony is merely in relation to the allegation pertaining to ill-treatment and cruelty to Sulochana which has been disbelieved by the Trial Court. As regards the cause of death, the testimony of PW-2 is of no assistance to the prosecution. 20. For the reasons stated above, therefore, we find no cogent evidence in respect of the charge under Section 302 read with Section 34 of the Indian Penal Code against the appellants, and in that regard, the judgment and order of the Trial Court cannot be sustained and is liable to be quashed and set aside. In the facts and circumstances of the case, the appellants are entitled for the benefit of doubt as merely because Sulochana had been residing with them till 16th July, 1990 and the marriage had not completed even a period of three months, that by itself cannot lead to a conclusion, in the facts and circumstances of the case, that the appellants or any one or more of them had caused the death of Sulochana. 21. In the result, the Appeal succeeds. The impugned judgment and order is hereby quashed and set aside. The Appellants are acquitted of the charges levelled against them under Section 302 read with - 19 - Section 34 of the Indian Penal Code as well as Section 201 read with Section 34 of the Indian Penal Code. The Appellants are directed to be released forthwith unless required in any other case. Their bail bonds stand cancelled. (R.M.S.KHANDEPARKAR, J) (A.A.SAYED, J )