1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 410 OF 2003 Ramesh Shankar Landage ] Age: 27 years, Occ: Mason, R/o. Khanota, ] Tal. Daund, Dist. Pune (At present in ] District Prison Baramati) ] ...Appellant Versus State of Maharashtra ] ...Respondent Mr. Milind Deshmukh for the Appellant Mr. D.P. Adsule, Additional Public Prosecutor, for the State. CORAM: B ILAL NAZKI and A.R. JOSHI, JJ. RESERVED ON: 31-8-2009 PRONOUNCED ON: 15-9-2009 JUDGMENT (Per Bilal Nazki, J.) :- 1. This Criminal Appeal is of year 2003. It was decided by this Court, upholding the conviction and sentence, on 2 November 9, 2006. The accused was in custody. He was not represented. 2. It appears that, thereafter, an appeal was taken to the Supreme Court. The Court has remanded the case back on the ground that the appellant was not represented before this Court. 3. The appellant was charged on an allegation that he had murdered his wife, Anita, on 30th March, 2000. His brothers, accused No. 2 and 5, and his parents, accused No. 3and 4, were also charged on the basis of these allegations for offences punishable under Sections 302 and 498-A read with Sections 34 and 201 of the Indian Penal Code. His brothers and parents were acquitted. The appellant was convicted under Section 302 and sentenced to life imprisonment. He is also convicted under Section 498-A and sentenced to suffer imprisonment for three years and payment of fine. He is also convicted under Section 201 and sentenced to suffer rigorous imprisonment for three years and payment of fine. 3 4. The appellant pleaded not guilty and claimed to be tried. The prosecution examined 10 witnesses. 5. The learned counsel for the appellant submitted that the prosecution has miserably failed in establishing the guilt of the accused, and as such, he deserved acquittal. 6. The case of the prosecution was that the marriage of the deceased with Ramesh, accused, was performed on 8th May, 1999. They continued to have a happy married life for two months. Thereafter, the deceased used to mention about the ill-treatment and harassment by the appellant and the in-laws. On 5th and 12th March, 2000, the complainant visited the marital home of Anita, and the deceased told him about the harassment from her husband. On 26th March, 2000 at about 3.15 p.m., the complainant visited the house of the deceased. At that time, the deceased told the complainant that the appellant needed an amount of Rs.25,000/- to 30,000/- to get a job in police, and the 4 appellant had told her that if the amount was not brought from her parents, she would suffer the consequences. 7. On 30th March, 2000 at 12.30 noon, the complainant received message from Satav Guruji that there was something wrong at Khanota and the complainant was called at Khanota. Accordingly, he along with his mother and uncle reached Khanota. On enquiry, he was told by the brother of the appellant-accused that Anita had died due to burns. Thereafter, he approached the police station. 8. P.W.1, Santosh Shyamrao Lokhande, is the brother of the deceased. At the time of the incident, he was serving as a teacher. His brothers are looking after the agricultural land. He knew the accused persons. The deceased was married to accused No.1 on 8th May, 1999. At the time of marriage, Rs.5,000/- were given as dowry. A cot, bedding and household utensils were also given. After the marriage, Anita started to reside at the matrimonial house with the accused. Accused No. 2 and 5 5 are the brothers of accused No. 1 and accused No. 3 and 4 are his parents. They were all living jointly. After marriage, Anita along with her husband, Ramesh, used to visit his home for occasions like festivals. The spouses were happy for two months. After two months, whenever Anita visited his house, she told him that all the accused subjected her to cruelty and were making demands for dowry. They subjected her to cruelty by starving her. Her in-laws abused her and her husband beat her. As accused No.1 was well-educated, the witness also told him that he would make efforts to get a job for him. At that time, accused No. 1 was doing masonry work. About 8 days prior to Sankrant in year 2000, Anita along with her husband, Ramesh, came to his house. Anita told him that the father, mother and brothers of accused No.1 quarrelled with her and told Anita that she should bring money from her maternal home for household expenses and for that purpose, they had driven out both of them from the house. He advised Ramesh to settle his family disputes in the house. Accused No.1, however, along with his wife, stayed in his house for about 1½ months. Accused No.1, during this period, did 6 construction work of the complainant’s uncle’s house. Accused No.3 also visited, during this period, the house of the complainant, and threatened the complainant as to why accused No. 1 was staying in his house. Accused No.2 also came to his house. Thereafter, the witness asked accused No. 1 to go to Khanota along with his wife. That day, Suresh went along. On the next day, accused No.1 and Anita prepared to go to Khanota. At that time, Ramesh said that he had been deceived when he married Anita. He had wanted to marry a girl from his relative. Thereafter, the witness persuaded his sister to go with accused No. 1. He visited his sister in Village Khanota on Sundays i.e. 5th and 12th March, 2000. Anita informed him that there is no change in the behaviour of her husband, father-in-law, mother-in-law and brothers-in-law. She complained that she was being abused and was not provided food and accused No.1 had beaten her, and cash amount was demanded. At that time, he advised her not to end her life. On 26th March, 2000 also, he visited his sister. Wives of brothers of accused No.1 were present in the house. Anita told him that accused No.1 had gone to the village for 7 masonry work. Anita told him that next month, there was recruitment of police, and her husband had asked her to bring Rs. 25,000/- to 30,000/-, otherwise accused No. 1 had said that “Tuze khai Khare Nahie”. The witness went to Ramesh in the village, and while chit-chatting, Ramesh told him that there was recruitment next month on the 10th, and for recruitment, he needed Rs.25,000/- to 30,000/- to get a job in the Police Department. The witness informed Ramesh that he would not be able to pay such an amount, as he was already indebted. The witness had purchased the land after obtaining loan. Therefore, he refused to pay the amount to the accused. On 30th March, 2000, the witness was on duty in the school at Bankarwadi. On that day at about 12.30 noon, one Satav from Kalashi came to him, and told him that there was a telephonic message from Khanota. Something was wrong there. Then, he along with his mother and uncle, Bapu Lokhande, and Navnath Shinde came to Village Khanota by motor cycles. When they reached the house of Anita at Village Khanota, they noticed 8 that many people had collected there. He could not find Anita. Thereafter, he asked her brother-in-law, Suresh, as to where was Anita. At that time, Suresh told him that Anita was not alive. She died due to burns, and he could not show her the dead body. Then, without seeing Anita, he went to Bigwan Police Station. Police at Bhigwan Police Station asked him to approach Daund Police station. Then, he approached Daund Police station. His relatives also accompanied him. In Daund Police station, he came to know that police had already gone to Khanota. He came back to Khanota Village. He saw the dead body of Anita. Police prepared the panchnama of the dead body of Anita, and sent the dead body to Daund. He also went to Daund along with the dead body. The post-mortem was conducted at about 12.00 noon on the next day, i.e., 31st March, 2000. They received the dead body after post-mortem, and conducted the funeral at Daund, as the dead body was not in a condition to be shifted to Village Kalashi, because it was totally burnt and there was bad smell. The funeral was performed at about 4.00 p.m. After completion of the funeral, he approached Daund Police Station, and lodged the 9 complaint. Police recorded his statement. He accepted Exhibit 26 as his complaint. Police again recorded his statement on 5th April, 2000. On 1st April, 2000, he met Narayan Londhe. Narayan told him about the incident which occurred in his presence when he visited the house of the accused on 30th March in the morning. 9. In cross-examination, certain omissions, additions and improvements were pointed out, which may not be material. 10. P.W.2, Vikas Uttam Shinde, acted as a panch, when he was present near the house of Ramesh Landage on 31st March, 2000 at about 8.30 a.m. The spot of the offence consists of a two-room house facing towards the West. The North side room out of these two rooms was locked, and it was paper-sealed. They had unlocked the room by removing the paper-seal, and entered into the room. They found burnt pieces of cloths and near the Northside wall, they found the burnt floor. Bhimrao Sopan Pawar informed them that it was the spot where the dead body was lying. 10 11. P.W.3, Narayan Mahadu Londhe, is a witness, who had seen the accused burning the body of his wife. He stated that on a Tuesday, he went to Limbodi for fair. He stayed in the house of his daughter-in-law. On Wednesday, he left Village Limbodi and reached Khanota. While he visited the house of a friend, Dattoba Deshmane, he halted in the house of Machindra Landage. On the next morning, while he was proceeding to the house of Narayan Deshmane, on the way, there is the house of Shankar Landage. When Shankar Landage saw him, he called and invited him for a cup of tea. He visited the house of Shankar, as he offered tea to him. He took tea in the courtyard of Shankar Landage. At that time, the younger son of Shankar Landage was beating his wife, i.e., the sister of the complainant. On hearing the noise, Shankar Landage, his wife and his other son went towards the spot and asked accused No. 1 why he was beating his wife. He took breakfast given to him by the elder son of Shankar, and thereafter, he proceeded to the house of Deshmane. He was in the house of Deshmane for about an hour. Then, there was commotion in front 11 of the house of the accused during that period of one hour. Therefore, he along with Narayan Deshmane and others came towards the house of Shankar. At that time, nobody from the family of Shankar was on the spot. In the house of Shankar, he noticed that some smoke was coming from the room. In the room, he found that one woman was in “burning position”, and she was not alive. Then the family members of the maternal home of that lady came to the spot. At that time, he was present there. Police came to the spot, prepared panchnama, and shifted the dead body for post-mortem. He went to his Village Khatgaon on Friday. The brother of that lady, who was burnt, came to his home at Khatgaon. He had narrated the incident to the complainant, i.e., the brother of the deceased, which occurred in his presence. It was 8.00 to 9.00 a.m. when he went to the house of Shankar Landage for tea. This witness was put to cross-examination, but nothing worthwhile could be elicited from him. 12. P.W.4, Ashok Keshav Band, was also a panch for seizure of cloths, which were on the person of Anita Landage. 12 13. P.W.5, Dr. Laxmikant Pandharinath Raut, is the doctor, who conducted post mortem. He started post mortem on 31st March, 2000 at 10.10 a.m. and completed at 11.30 a.m. He found the following injuries:- “1) Over inner side of right thigh – starts from right inguinal canal muscle deep edges even 10 c.m. in length, 4 c.m. in width and 2 c.m. in depth. 2) 99% burn. Injury No.1 in column No. 17 is ante mortem and injury No.2 is post mortem. Injury No.3 in Col. 19 i.e. Pitechaial haemorrhage over brain matter means minute blood spots over external surface of the brain. In case of throttling, injury mentioned in Col. No. 19(3) is possible.” In his opinion, the prima facie cause of death was shock due to asphyxia due to throttling. After getting reports, he gave the final death certificate, Exhibit 39, and according to him, the death was caused by asphyxia due to throttling. The burn injuries on the body, according to the doctor, were post mortem. However, there were certain injuries, which were ante mortem, but they were not responsible for death. 13 14. P.W. 6, Peermohammad Yakub Attar, is a panch witness. He was called in the police station on 6th April, 2000. Accused No.1, according to him, was present in the police station, and accused No.1 showed his willingness to produce Thapi, which was used as a weapon to beat his wife. Police reduced the statement into writing. Then, by a private vehicle, he along with the other panchas, police and accused went to Village Khanota as per the directions of the accused. They parked the jeep near a big tree. They stepped down from the jeep. The accused pointed out the house where the offence took place. Then the accused entered into the house. Panchas followed him. In the house, the accused produced Thapi, which was kept beneath the handcart without wheels inside the house. He identified the Thapi, which was recovered after discovery by the accused. 15. P.W. 7, Mahadev Sopan Dhavale, was declared hostile. 14 16. P.W. 8, Sudhakar Maruti Londhe, is the panch relating to the seizure of cloths which were worn by accused No. 1 to 3. 17. P.W.9, Chandrakant Ramchandra Dabhade, was attached to police station on the relevant date. He visited the spot of the offence and prepared the spot panchnama. It is marked Exhibit 48. On the very day, he examined 15 witnesses of accidental death. On 31st March, 2000, Santosh Shyamrao Lokhade filed a complaint. He recorded the complaint. He seized the cloths from accused No.1 to 3. There was smelling of kerosene on the shirt and pants of accused No.1. He also said that the accused persons produced Thapi. 18. P.W. 10, Raghunath Vithal Phuge, is also a police officer, who received the papers of investigation from P.S.I. Dhabhade. He sent the muddemal property for C.A. Examination. He called for the final opinion of the medical officer. He made certain inquiries from the medical officer vide letter, Exhibit 38, and thereafter, he prepared the charge-sheet. 15 19. The learned counsel for the appellant submits that there is no evidence, circumstantial or otherwise, that the accused was involved in the case. 20. The learned Additional Public Prosecutor submits that there was a long dispute going on between the husband and the wife, which is proved by the evidence. Thereafter, it is an admitted case that the body of the deceased was found in the room, which was occupied by the accused and the deceased, and they were husband and wife. He also submits that one of the witnesses, P.W.3, Narayan Mahadu Londhe, was present just before the occurrence in the house of the accused when he saw the accused beating his wife. This evidence becomes important, according to the learned Additional Public Prosecutor, because the final opinion of the doctor was that the death had been caused due to asphyxia and not due to burns. According to him, it is evident that the deceased was murdered first, and then tried to be burnt. He had also seen smoke coming out of the room. None of the accused persons reported the matter to the police. Besides, he submits that all these circumstances point to the fact that the murder was 16 committed by accused No.1, as the chain of circumstances is complete. He also submits that the prosecution conclusively proved that the deceased was murdered in the matrimonial house in the room which was occupied by the accused and the deceased. Accused No.1 was present in the house, and he was last seen beating deceased, but accused No.1 did not offer any explanation even in his statement under Section 313 of the Criminal Procedure Code about the circumstances which were manifestly proved against him. He only stated that when the incident took place, he was not present in the house, and he had gone to another village where he was doing masonry work. Therefore, he tried to plead alibi, and he produced two defence witnesses in this connection. 21. D.W. 1, Narayan Baburao Deshmane, stated that the distance between the house of the accused and his house is about one mile. He did not know Narayan Mahadu Londhe. He had not seen that person. He stated that Narayan Mahadu Londhe had not come to his house on the day of the incident. It may be pointed out herein that Narayan Mahadu Londhe is P.W.3, who had stated 17 that he visited the house of the accused and also one Narayan Baburao Dehsmane. 22. He was subjected to cross-examination, but he stated that he knew on 30th day that the deceased had died, but he did not inform the police. 23. Another witness is D.W. 2, Shahaji Nanasaheb Bhosale. He was Police Patil of Village Khanota. Rehabilitation Colony was situate towards the South side of Old Gavthan Khanota. He knew all the accused. The accused were staying in the New Gavthan, i.e., Rehabilitation Colony. On the day of the incident, he visited the house of the accused after the incident. He entered the room where there was a dead body, and noticed some persons in that room, who were coming and going into the room. He did not remember whether the police had recorded his statement. None of the accused was present in their home on the day of the incident as they had gone out of the village to attend the marriage of their relative. This witness also does not come to the rescue of 18 the accused himself because he reached the house after the incident and it will be dangerous to believe him when he says that all the inmates of the house had gone to attend a marriage. There is no mention of marriage by any of the witnesses. Besides, accused No.1 himself stated that he had gone to another village for masonry work. In our view, plea of alibi taken but not proved can be itself a circumstance against the accused. 24. In our view, therefore, the trial Court was right in convicting the accused for an offence under Sections 302 and 201 of the Indian Penal Code; but we do not find any reliable evidence with regard to an offence under Section 498-A. Therefore, the conviction and sentence under Section 498-A is set aside. 25. The appeal is partly allowed. However, the conviction and sentence under Sections 302 and 201 is upheld. BILAL NAZKI, J. A.R. JOSHI, J.