1 APEAL355.04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.355 OF 2004 Arjun Machindra Puri, resident of Village Ghanegaon, Taluka Barshi Dist. Solapur, Presently lodged in Yerawada Jail, At Pune. : Appellant (Orig.Accused No.1) V/s. The State of Maharashtra. : Respondent (Orig.Complainant) .... Mr.Mahesh Thorat for the appellant. Mrs.A.S.Pai, Addl. Public Prosecutor for the State. ..... CORAM : D.D. SINHA & A.R.JOSHI, JJ. Date of Reserving ) : 18.07.2011. the Judgement. ) Date of Pronouncing ) : 06.09.2011. the Judgement. ) JUDGEMENT (Per D.D.Sinha, J.) Heard the learned counsel for the appellant and the learned Addl. 2 APEAL355.04 Public Prosecutor for the State. 2. The facts which had given rise for prosecuting the appellant for the offence charged in a nutshell are as follows:- Deceased Kamal was the wife of the appellant Arjun. The original accused nos.2 and 3 are the parents of the appellant. The marriage between the appellant and deceased Kamal took place about ten years prior to the incident. P.W.1 Dattoba Girijaba Giri and P.W.2 Jamanabai Giri are the parents of deceased Kamal. Both at the relevant time were residing at village Pitti, taluka Patoda, Dist. Beed. After marriage, Kamal started residing with the appellant at village Ghanegaon, taluka Barshi. It is the case of the prosecution that the appellant Arjun was harassing and ill-treating deceased Kamal on account of household issues and the deceased used to complain to her parents about the said ill- treatment. 3. On 24.1.2000 original accused no.2 Machindra went to village Pitti and visited the house of the complainant and informed him that his daughter Kamal has died two days prior to that date on account of some pain in the chest and was also cremated at village Ghanegaon on 3 APEAL355.04 23.1.2000. On receiving the said information, P.W.1 Dattoba and his wife P.W.2 Jamanabai went to Police Patil of their village and all of them thereafter went to village Ghanegaon. On inquiry they learn that Kamal has been buried as per rites and customs. Suspecting foul play, a complaint was lodged, a case of accidental death was registered at the police station. 4. The dead body of deceased Kamal was exhumed and the Medical Officers conducted post-mortem examination on the dead body of deceased Kamal on 25.1.2000 in the presence of two panchas and panchanama exh.22 was drawn. The inquest panchanama exh.23 was also drawn and, thereafter, post-mortem examination was conducted on the spot by the Medical Officers attached to Primary Health Centre, Vairag, i.e. Dr.N.K.Patil and Dr.(Ms) J.K.Phaltankar (P.W.3). The post- mortem revealed that the tongue of the deceased was caught between teeth and some portion of the same was protruding. There was contusion admeasuring 6 cm. x 6 cm. noticed on the front of the neck and palpable fracture of hyoid bone was also noticed. These injuries were ante-mortem and the cause of death given by the Medical Officer was asphyxia due to throttling. A complaint came to be filed against the appellant on 25.1.2000, on the basis thereof offences punishable under sections 302, 4 APEAL355.04 201, 176 and 498-A read with section 34 of the Indian Penal Code came to be registered against the appellant along with two others. The complainant produced a letter issued by deceased Kamal to him wherein a demand of an amount of Rs.1,000/- made by the appellant is mentioned. Statement of witnesses came to be recorded. The appellant along with two others came to be arrested. The appellant showed the spot of the incident where the deceased Kamal was killed, samples of blood of the deceased Kamal and also of the appellant were taken and forwarded to the Chemical Analyser for analysis. After completion of other investigation, charge-sheet came to be filed before the Judicial Magistrate, First Class, the matter was committed to the Court of Sessions who acquitted other co-accused and concivcted and sentenced the appellant for the offences charged, except the offence punishable under sections 498-A and 176 of the Indian Penal Code for which he was acquitted. The defence of the appellant is of false implication. The appellant pleaded not guilty and claimed to be tried. 5. Mr.Thorat, the learned counsel for the appellant, has contended that the dead body of the deceased Kamal was not secretly buried. P.W.1 Dattoba after reaching village Ghanegaon made inquiries with the members of his community and was informed by them that they had 5 APEAL355.04 waited for the parents of the deceased i.e. P.W.1 Dattoba and P.W.2 Jamanabai. However, since they did not reach in time, the dead body of Kamal was buried. It is further contended by the counsel for the appellant that the dead body of the deceased was buried by perfoming all the religious rituals. It is evident from the inquest panchanama which shows that when the dead body of the deceased was exhumed, the green colour sari, green colour blouse and the mangalsutra were on the person of the deceased. Similarly, there were other ornaments also found on the person of the deceased. The counsel for the appellant has contended that the village where the parents of the deceased were residing is far off from the village where the deceased was residing with the appellant and, therefore, it was not possible for the appellant to inform the parents of the deceased immediately after the death of the deceased. Village Ghanegaon is situate in taluka Barshi, dist. Solapur and village Pitti is in taluka Patoda, dist. Beed. 6. The counsel for the appellant contended that though the prosecution has examined six witnesses to bring home the guilt of the appellant for the offence of murder of his wife, out of that P.W.1 Dattoba and P.W.2 Jamanabai are the parents of the deceased and were highly interested in the prosecution and their testimony is of interested witness and it cannot 6 APEAL355.04 be accepted. It is contended that the case is based on circumstantial evidence and the circumstances proved by the prosecution are not conclusive in nature and the facts which are established by the prosecution are also not consistent with the hypothesis of the guilt. On the other hand, those facts are consistent with the innocence of the accused. It is, therefore, contended that the evidence adduced by the prosecution, including the medical evidence, does not prove the charge of murder against the appellant beyond all reasonable doubts and, therefore, the finding of conviction recorded by the trial Court for the offence of murder is unsustainable in law and is liable to be set aside. 7. The learned Addl. Prosecutor, on the other hand, supported the judgement of the trial Court and has contended that the evidence of P.W.1 Dattoba, P.W.2 Jamanabai, medical evidence and other attending circumstances brought on record by the prosecution are conclusive in nature and the facts so established are also consistent with the guilt of the accused. It is contended that the conduct of the appellant of not informing the parents of the deceased and burying the dead body of the deceased before the parents of the deceased visited the house of the appellant is totally consistent with the hypothesis of the guilt and excludes the aspect of innocence. It is, therefore, contended that the judgement of 7 APEAL355.04 the trial Court is sustainable in law. 8. We have considered the contentions canvassed by the respective counsel and considered the evidence adduced by the prosecution. The case of the prosecution is based on circumstantial evidence and broadly speaking, following are the circumstances which are proved by the prosecution in order to prove the complicity of the appellant in the crime in question. Those are: (i) Deceased Kamal died while she was in the custody of the appellant. (ii)Her death was homicidal. (iii)The conduct of the accused persons in hurriedly burying the dead body of the deceased Kamal. (iv)Deceased Kamal was subjected to cruelty by the appellant. 9. In order to prove these circumstances, the prosecution has examined six witnesses. The complainant Dattoba (P.W.1) has proved lodging of the First Information Report with the police on the basis thereof, initially a case of accidental death was registered. F.I.R. is dated 25.1.2000. The prosecution has relied upon the letter purportedly written by deceased Kamal to the complainant. The mother of deceased, 8 APEAL355.04 Jamanabai (P.W.2), Dr.(Ms) J.K.Phaltankar (P.W.3) who has conducted the post-mortem examination on the dead body of the deceased, the post- mortem report has been proved by the Medical officer. 10. Dattoba Girjaba Giri (P.W.1) is the complainant (father of the deceased). It has come in the examination-in-chief of this witness that his daughter deceased Kamal was married to the appellant Arjun about eight to nine years prior to the incident. After the marriage, Kamal started residing with the appellant Arjun at Ghanegaon. The deceased used to visit her parents’ home on festivals and used to tell the complainant that she was ill-treated by the appellant Arjun and his parents on account of household work. Dattoba has stated in his testimony that Machindra, the father-in-law of the deceased, came to his village and informed him that his daughter died and was cremated. P.W.1 along with other villagers and Police Patil of the village came to Ghanegaon and went to the grave-yard where the body of Kamal was buried. P.W.1 got suspicious and lodged the information of death of his daughter. This witness has stated that on 25.1.2000 Tahsildar and others exhumed the body of deceased Kamal. The Doctor examined the dead body of his daughter and told that she was killed by throttling. The complainant lodged the report on the same day with the police which is exh.15. It has come in the testimony of this 9 APEAL355.04 witness that his daughter Kamal used to write letters. 11. In cross-examination of this witness, P.W.1 Dattoba, it has come in evidence that on 24.1.2000 original accused no.2 Machindra sent a message informing this complainant that his daughter has died and he should come to his villages. P.W.1 has also admitted that after he and others reached Ghanegaon, he made inquiries with the members of his community, including the appellant Arjun. It has come in the evidence of this witness that the appellant did not wait for the complainant and buried the body of the deceased and, therefore, he became apprehensive about the suspicious conduct of the appellant. 12. The evidence of P.W.1 shows that the appellant after the marriage with the deceased Kamal was ill-treating her. After the death of Kamal, neither the information was given about the death to the complainant nor P.W.2 Jamanabai and buried the body of deceased Kamal in the absence of her parents. 13. The evidence of P.W.2 Jamanabai (mother of the deceased) is more or less similar to the evidence given by P.W.1 Dattoba. This witness has also stated that the deceased was her daughter, married to the 10 APEAL355.04 appellant about ten years prior to the incident. After the marriage, the deceased started residing with the appellant Arjun at village Ghanegaon and whenever deceased used to visit her house on festivals, she used to tell this witness that the appellant and others used to harass her on account of household work. It has come in the evidence of this witness that after the accused no.2 Machindra came to their house and told them that her daughter has died due to pain in chest and on receiving the information about the death of Kamal, this witness, her husband P.W.1 Dattoba and other villagers, including Police Patil came to village Ghanegaon in a jeep. P.W.1 Dattoba lodged the report with the police. Thereafter, the police, Tahsildar, the Doctor and others exhumed the dead body of the deceased. The cross-examination of this witness would show that the defence failed to extract any material so as to discredit her ocular testimony. 14. The prosecution has examined Dr.Jayshree K. Phaltankar (P.W. 3). Dr.Jayshree Phaltankar, at the relevant time, was working as Medical Officer at Primary Health Centre, Vairag. It has come in her testimony that on 25.1.2000 while she was present in the Primary Health Centre, they received a requisition letter from from police for conducting post- mortem examination on the dead body of deceased Kamal after it was 11 APEAL355.04 exhumed on the spot. This witness has stated that in their presence the dead body of the deceased was exhumed and they have conducted the post-mortem examination on the dead body of the deceased on the spot. On external examination on the dead body, the Medical officer has noticed swelling all over the the body, eyes were protruding out of the eye sockets. The tongue was protruding out of the mouth and it was caught between the teeth. There was congestion in the front of the neck. The Medical officer on conducting internal examination noticed that hyoid bone was fractured. She also noticed contusion on the neck externally and on internal examination, the Medical Officer had found contusion on the neck. The external injuries were ante-mortem. The Medical Officer opined that the cause of death was asphyxia due to throttling. The defence, in the cross-examination of this Medical Officer, could not extract any material so as to affect the credibility of the testimony of this witness. 15. The overall evidence of the prosecution would show that the intimation of death of Kamal was received by the complainant P.W.1 Dattoba and his wife Jamanabai (P.W.2) only after the dead body of their deceased was buried and even third-day function was over, which was performed by the appellant and others in the absence of these witnesses. 12 APEAL355.04 It is no doubt true that the inquest panchanama which was admitted by the defence does not mention contusion on the neck, protruding of tongue and fracture on hyoid bone. However, in the instant case, the substantive evidence of Dr.(Ms) Phaltankar clearly establishes that she has conducted post-mortem on the spot after the dead body was exhumed and the external as well as internal injuries noticed by her while conducting the post-mortem examination of the dead body of the deceased were clearly and specifically mentioned in the post-mortem report. There is no material on record to show that the Medical Officer had any axe to grind against the appellant. On the contrary, Dr.(Ms) Phaltankar who was the Medical Officer at the relevant time attached to Primary Health Centre, Vairag, and on receipt of the requisition sent by the police, went to the spot along with her senior Doctor and conducted the post-mortem examination on the spot. There is absolutely no reason for Dr. (Ms) Phaltankar to depose falsely against the appellant in the Court. The contention canvassed by the counsel for the appellant that the Medical Officer under pressure from the parents of the deceased prepared false post-mortem report, in the absence of any material in this regard placed on record by the defence cannot be accepted. The medical evidence, in our view, clearly demonstrates that the cause of death was due to throttling. The Medical Officer has admitted in her cross- 13 APEAL355.04 examination that when a woman is strangulated, she would resist. The Medical Officer admitted in her cross-examination that she had not mentioned the directions of the contusion noted on the neck. She has also admitted that such contusion was not possible by mere thumbs or fingers while strangulating a person. The Medical officer has also admitted in her cross-examination that fracture of hyoid bone is possible in case of strangulation by ligature. The overall analysis of the medical evidence of Dr.(Ms) Phaltankar would show that the injuries sustained by the deceased were anti-mortem and hyoid bone was fractured and the deceased died a homicidal death. The defence of the appellant that the death was due to pain in the chest in view of the medical evidence is totally false. In the instant case, it is not disputed that at the time of the incident the deceased was residing with the appellant and his parents. The appellant has admitted that the deceased died while she was residing with him and, therefore, it was necessary for the appellant to offer a reasonable and plausible explanation for the death of the deceased. The explanation given by the appellant that the deceased died due to pain in the chest is completely incorrect and totally false in the light of the substantive testimony of the Medical Officer as well as finding of the injury on the person of the deceased and considering the cause of death. It is pertinent to note that the appellant in his statement recorded by the 14 APEAL355.04 Court under section 313 of the Cr.P.C. has only stated that the deceased died due to illness without giving any further details in this regard. The defence taken by the accused that the relatives of the deceased along with the Police Patil of village Pitti, including the parents of the deceased brought pressure on the police and, therefore, the police had to exhume the dead body of the deceased. All these persons then put pressure on the Medical Officers and persuaded them to give wrong cause of death as given in the post-mortem notes, cannot be accepted for the following reasons:- (i) The conduct of the appellant and others was not the normal human conduct. (ii)If the deceased died a natural death, there was no reason for the appellant not to inform her parents i.e. P.Ws.1 & 2. (iii)On the contrary, the normal human conduct requires the appellant to inform the parents of the deceased forthwith. (iv)In the instant case, the appellant not only failed to inform the parents of the deceased but buried the body of the deceased and also performed the third-day function in the absence of P.W.1 Dattoba and P.W.2 Jamanabai. (v)Similarly, P.W.3 Dr. (Ms) Phaltankar is a responsible Medical 15 APEAL355.04 Officer who was attached to the Primary Health Centre, Vairag. There is nothing on record to show that the Medical officer had any axe to grind against the appellant or his family members and, therefore, there is absolutely no reason for her to depose falsely against the appellant and prepare a false post-mortem report. The evidence of P.W.1 and 2 coupled with the medical evidence, in our view, completely falsify the defence of the appellant and is sufficient to show the complicity of the appellant in the crime. 16. It is no doubt true that in a case of circumstantial evidence, the circumstances from which the conviction is drawn should be fully proved, should be conclusive in nature and all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence of the accused. In the instant case, as we have already observed, the evidence on record clearly shows that it is not disputed that at the time of the incident, the deceased was residing with the appellant and, therefore, at the time of the death deceased Kamal was in the custody of the accused. The defence taken by the accused that deceased Kamal died due to illness on account of chest pain, on the face of it, is improbable, in view of the evidence of the Medical Officer Dr.(Ms) Phaltankar. The conduct of the appellant in not informing the parents of 16 APEAL355.04 the deceased about the death and burying the dead body without waiting for them to come is consistent only with the hypothesis of guilt and totally inconsistent with the innocence of the accused, coupled with other attending circumstances brought on record by the prosecution, establishes with certainty the guilt of the appellant for the offence of murder. 17. It is no doubt true that the prosecution has to stand on its own legs. However, in the instant case, since the deceased at the time of her death was residing with the appellant and was in his custody, it was incumbent upon him to offer a probable explanation regarding the cause of death. However, the explanation offered by the appellant is wholly improbable and totally unacceptable in the light of the medical evidence given by P.W.3 Dr. (Ms) Phaltankar, same being false is an additional circumstance which completes the chain. 18. For the reasons stated hereinabove, the Criminal Appeal suffers from lack of merits and the same is dismissed. (D.D. SINHA, J.) (A.R. JOSHI, J.)