1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 249 OF 2008 Sharad Maruti Dhanwade, age 23 years, occ. -- r/o Devi Nimgaon, Tq.Ashti, Dist. Beed ...Appellant (at present in jail) (orig. accused no.1) VERSUS The State of Maharashtra ...Respondent ..... Shri R.N.Dhorde advocate with Shri B.T.Bodkhe, advocate for the appellant Shri K.S.Patil, APP for the respondent ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 5.3.2010. ORAL JUDGMENT : (Per Shrihari P. Davare) 1 The challenge in this appeal is to the judgment and order dated 18.6.2008 rendered by the learned Additional Sessions Judge-1, Beed in Sessions Case No. 78 of 2007, 2 convicting the appellant herein/accused no.1 for the offences punishable under Sections 302, 304B, 498A and 201 of the Indian Penal Code as well as under Sections 3 and 4 of the Dowry Prohibition Act, and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default of non-payment of fine to undergo further R.I. for one year for the offence punishable under Section 302 of the Indian Penal Code; and also sentencing him to undergo R.I. for 7 years and to pay a fine of Rs. 1,000/-, in default of non-payment of fine to undergo further R.I. for one year for the offence punishable under Section 304B of the Indian Penal Code; and also sentencing him to undergo R.I. for one year and to pay a fine of Rs. 500/-, in default of non-payment of fine to undergo further R.I. for six months for the offence punishable under Section 498A of the Indian Penal Code; as well as sentencing him to undergo R.I. for three years and to pay a fine of Rs. 500/-, in default of non-payment of fine to undergo further R.I. for six months for the offence punishable under Section 201 of the Indian Penal Code; and also sentencing him to undergo R.I. six months and to pay a fine of Rs. 200/-, in default of non-payment of fine to undergo further R.I. for one month for the offence punishable under Sections 3 and 4 of the Dowry Prohibition Act; and further directing that all the afore said substantive sentences to run concurrently. 3 2 Such of the facts, as are necessary to summarise the prosecution case, are as under :- It is the case of the prosecution that marriage between Padmabai and accused Sharad was solemnised at village Wahira on 12.4.2007 and Padmabai went to reside her matrimonial home which was situated at Devi Nimgaon after the marriage. It is further the case of the prosecution that PW1 Mahadeo Zanze i.e. father of deceased Padmabai received a telephoe call from his wife's sister's son namely Ashok Bhavar on 1.5.2007 informing him that his daughter was dead, and therefore, he, his wife i.e. PW4 Saraswati and other villagers went to Devi Nimgaon by a jeep where matrimonial home of his daughter was situated and found the dead body of his daughter in well in the field of the accused. He gave information to PW5 police patil Sudhakar Patil that the body of wife of accused was lying in the well of Mhaske, and therefore, PW5 Sudhakar Patil went to police station Ambhora and gave the information about the said incident on 2.5.2007 at 8.00 a.m. and on that basis accidental death case was registered bearing No. 8 of 2007 under Section 174 of the Code of Criminal Procedure. 4 3 PW10 Angad Sudke was attached as A.P.I. to Ambhora police station at the relevant time and he was directed to investigate A.D.No. 8 of 2007 by P.S.O. on 2.5.2007 and accordingly he went to the place of incident at Devi Nimgaon and saw the place of incident which was in the field of Mhaske and found that dead body of Padmabai was in the well, and hence, he took out the said dead body out of the well and recorded inquest panchanama Exh. 38 in presence of panch PW3 Kusumbai and sent the dead body for postmortem purpose. Accordingly PW9 Dr. Vinod Kakade along with Dr. P.B.Rasal conducted postmortem thereon on 2.5.2007 and produced postmortem report Exh.52 and provisional postmortem certificate Exh.53 disclosing cause of death due to asphyxia due to strangulation and viscera and blood was preserved for chemical analysis. The provisional certificate received from the Medical Officer disclosed the death of Padmabai due to strangulation. 4 Accordingly, he recorded the complaint of PW1 Mahadeo and registered the crime under C.R. No. 27 of 2007 Exh. 36 under Sections 302, 304B, 498A r/w 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, and criminal law was set into motion and investigation was proceeded further. Moreover, PW10 API Angad Sudke went to the place of 5 incident and recorded the panchanama of the scene of offence Exh.39 and seized the clothes of the deceased produced by P.C. U.P.Jare under panchanama Exh.40. Moreover, PW10 ASI Sudke arrested the appellant herein and accused no.2 Balu under arrest panchanama Exhs. 55 and 56 respectively. Thereafter he seized the clothes of the appellant herein in presence of panchas under panchanama Exh.41. During the investigation, PW10 API Sudke recorded the statements of witnesses. Thereafter he arrested accused no. 3 Pushpabai and accused no. 4 Sangitabai on 4.5.2007 under the panchanamas Exhs. 57 and 58 respectively. Moreover, on 4.5.2007 he sent the seized articles to the office of Chemical Analyser, Aurangabad for examination purpose through PC PW7 Ashok Mese, carrier for analysis purpose and received the chemical analysis reports thereof, which are marked at Exhs. 61 to 65 respectively. 5 Accordingly after completion of investigation, charge sheet came to be filed against the accused persons before the Judicial Magistrate, First Class, Ashti under R.C.C. No. 121 of 2007. However, since some of the offences were triable exclusively by the Court of Sessions, the said case was committed to the Court of Sessions, Beed vide committal order dated 6.2.2007 and said case was numbered as Sessions Case No. 78 of 2007. Thereafter 6 the learned Additional Sessions Judge-1, Beed framed the charge against accused at Exh.23, but the accused pleaded not guilty to the charges levelled against them and claimed to be tried. 6 In order to substantiate the charges levelled against the accused persons, the prosecution has examined in as much as 10 witnesses as under. PW1 Mahadeo Vishwanath Zanze, complainant – father of deceased. PW2 Bapu Mahadeo Zanze, brother of deceased. PW3 Kusumbai Dnyandeo Gayake, panch to inquest panchanama Exh.43. PW4 Saraswati Mahadeo Zanze, mother of deceased – turned hostile. PW5 Sudhakar Shankarrao Patil, police patil of village Deni Nimgaon. PW6 Arjun Vishwanath Atole, telephonic message of death of deceased was received by him. PW7 Ashok Malikarjun Mese, carrier PW8 Ashok Rambhau Bhavar, who informed the complainant about death of deceased – turned hostile. PW9 Dr. Vinod Ambadas Kakade, who conducted postmortem and produced postmortem notes Exh. 51. 7 PW10 API Angad Dnyanoba Sudke, investigating officer. 7 The defence of the appellant is of total denial and in his statement recorded under Section 313 of the Code of Criminal Procedure, he stated that on the date of incident, he gave dinner to his ailing mother who was suffering from paralysis and deceased Padmabai and his paternal aunt were also taking dinner. However, when he came back, he did not notice Padmabai there. Hence, he asked his paternal aunt about Padmabai where she had gone, on which the paternal aunt told him that she had gone to answer the call of nature. However, Padmabai did not return back, and therefore, he went to village to search her, but same was in vain and her dead body was noticed in the well near his house at about 11.30 a.m. The appellant submitted that he has been falsely implicated in the present case at the instance of relatives of deceased and he claimed to be innocent. 8 After scrutinizing and appreciating the evidence on record, learned Trial Judge convicted and sentenced the appellant herein as afore stated. Being aggrieved and dissatisfied by the conviction and sentence, rendered by learned Trial Judge on 18.6.2008, the appellant preferred present appeal challenging the same and praying for quashment thereof. 8 9 Before adverting to the submissions advanced by the learned counsel for the appellant and the learned A.P.P. for the respondent, we feel it necessary to scrutinize the material evidence adduced and produced by the prosecution and in the said context, at the out set, it is material to note that PW2 Bapu Zanze panch to the inquest panchanama and PW3 Kusumbai Gayake another panch to inquest panchanama have turned hostile; as well as PW4 Saraswati Zanze mother of victim Padmabai also did not support the case of prosecution and turned hostile; also PW6 Arjun Atole neighbourer of father of victim and PW8 Ashok Bhavar also turned hostile and did not support the case of prosecution. Learned A.P.P. put the questions in the form of cross-examination to the said witnesses, but nothing beneficial to the prosecution case could be elicited from their testimonies. 10 Keeping in mind the said aspect and coming to the testimony of PW1 Mahadeo i.e. father of the deceased Padmabai, he stated that Padmabai married with appellant herein on 12.4.2007. He further stated that it was agreed to pay Rs. 51,000/- in cash and one tola gold in the said marriage and accordingly he paid Rs.25,000/- and one tola gold, but remaining amount of Rs.26,000/- was to be paid after one year. After 9 marriage, Padmabai went to the house of the accused at Devi Nimgaon and accused, his brother Balu, their mother and aunt were residing in her matrimonial house which was situated in the field. He further stated that marriage of his nephew was fixed, but Padmabai was not sent for the said marriage, and therefore, he and Padmabai went to the house of the accused on the next day and at that time accused persons demanded remaining amount of dowry, but since PW1 Mahadeo did not have money, he stated that he would pay later on. Moreover, he stated that he asked his daughter Padmabai why she did not come to the marriage, thereupon she stated that accused persons were demanding remaining amount of dowry and they were harassing her on that count and also assaulted her. Thereafter PW1 Mahadeo returned back. 11 PW1 Mahadeo further stated that on 1.5.2007 he received a telephone call from Ashok Bhavar, who informed that his daughter Padmbai was dead, and therefore, he, his wife and villagers went to Devi Nimgaon and found dead body of his daughter in the well in the field of the accused. The police personnel came in the morning on the next day and dead body was removed from the said well and inquest panchanama was prepared and dead body was sent for postmortem. PW9 Dr. Vinod 10 Kakade performed autopsy on the dead body of Padmabai and submitted postmortem report as well as provisional postmortem certificate at Exh.52 and 53 respectively. He further stated that he lodged the complaint at the police station Ambhora against the accused persons Exh.36. 12 During cross-examination PW1 Mahadeo admitted that his daughter Padmabai did not make any complaint to him about illtreatment on the date of marriage till her death against the accused. He also admitted that he lodged the complaint on the suspicion and under misunderstanding as his daughter died at the house of accused. He further stated that the well where dead body was found was at a distance of 200 meters from the house of the accused. As regards the dowry amount, he stated that no agreement was there regarding payment of Hunda since they were relatives. He further stated that nothing remained to be paid as dowry since nothing was settled. He also stated that he had no complaint against the accused about the death of his daughter. 13 It is pertinent to note that PW1 Mahadeo father of victim Padmabai categorically admitted in the cross-examination that his daughter did not make any complaint about illtreatment 11 from the date of her marriage till her death and the said statement and conduct of Padmabai speak for themselves. Moreover, he further stated that there was no agreement regarding payment of Hunda since they were relatives and nothing remained to be paid as dowry since nothing was settled and the said categorical admission by PW1 Mahadeo father of deceased Padmabai shatters the charges levelled against the appellant in respect of offences punishable under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. Moreover, it is significant to note that he further stated that he has lodged the complaint against the accused on suspicion under misunderstanding since his daughter died at the house of the accused and the said admission also shatters the case of the prosecution in respect of charges levelled against the appellant for the offence punishable under Section 302 of the Indian Penal Code. 14 Moreover, PW1 Mahadeo further stated that the well where the dead body of deceased was found was situated at a distance of 200 meters from the house of the accused which clarifies that the death of victim Padmabai was not the custodial death and did not take place in the house of the accused and the said place was situated at about 200 meters from the house of the 12 accused, and therefore, appellant/accused was not expected to give any explanation therefor. It is curious to note that although PW1 Mahadeo has given vital admissions and has made material statements in his cross-examination, the prosecution did not declare the said witness hostile, and did not seek permission to put him the questions in the form of cross-examination, and therefore, the said admissions and statements made by PW1 Mahadeo i.e. father of victim Padmabai stuck up the prosecution case and cemented its fate. 15 That takes us to the deposition of PW9 Dr. Vinod Kakade, who stated that he was a Medical Officer at Primary Health Centre, Kada at the relevant time and on 1.5.2007 he was on duty and A.P.I. of Ambhora police station brought a dead body of one Padmabai at about 10.30 a.m. and it was told that the said dead body was lying in the well. He stated that he performed postmortem on the said body of Padmabai and on examination of the said body he found that the death of Padmabai was due to asphyxia due to strangulation. He noticed following ante mortem injuries on the person of Padmabai. “ 1 Ligature mark over right side of neck, oblique, extending medially to upwards laterally 4 x 0.5 x 0.5 c.m. 2 Ligature mark over left side of neck, supra clavicular area, extending medially upwards 13 and backwards, 09-5 x 0.5 x 0.5 cm. 3 Abrasion over upper 1/3 of right leg vertical, 2 x 1 x 01.01 cm. 4 Abrasion over left iliac chest (2 cm. above crest) semicircular, 3 x 01 cm. antemortem direction medially upwards. 5 Abrasion over infra mammary (left) at the level of 8th inter coastal space directed medially upwards, 2 x 1 x 01 cm. The injuries nos. 1, 2 and 3 to 5 might have been caused within 12 to 14 and 12 to 24 hours respectively prior to death. No corresponding internal injuries were noticed to these injuries. “ 16 PW9 Dr. Vinod Kakade also stated that he noticed postmortem injuries as described in column no.17. He further stated that all these postmortem injuries might have caused by the acquatic animals. He further stated that death of Padmabai was neither natural, homicidal or accidental. Accordingly, he issued postmortem report which is marked at Exh.52. He also issued provisional postmortem certificate which is marked at Exh. 53, and viscera and blood was taken out and same was preserved. 17 During cross-examiantion, PW9 Dr. Vinod Kakade stated 14 that it is not obligatory on the doctors to draw a diagram and did not agree that protruding of eye-ball is one of the signs of strangulation. He stated that fractures on larynx trachea and Bronch are signs of strangulation and fracture of cartilage may be one of the signs of strangulation and all the said signs are absent in the present case. He further stated that injury nos. 3, 4 and 5 in column no.17 at Exh.52 do not relate either collectively or individually to cause death. He also admitted that he has not mentioned whether injury no.2 was oblique or horizontal. He denied the suggestion that in case of strangulation, ligature mark would be horizontal and agreed with the proposition given in the Jurisprudence by Modi that in strangulation case, the ligature marks are horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the grove or farrow being soft end reddish. He further stated that hanging is mostly suicidal form of death. In hanging, ligature mark is oblique. He denied the suggestion that in view of oblique ligature mark as mentioned in injury no.1 in para no.17 of the postmortem notes, there was possibility that Padmabai might have met with suicidal death. He further stated that the body must have been in the water for about 12 to 24 hours before postmortem and in such situation, the body becomes swollen. He also denied that on account of swelling on the body it becomes difficult to know as to 15 whether the injuries were antemortem or postmortem. He stated that particularly in this case there was no hyoid bone fracture. 18 On perusal of postmortem notes Exh.51, it is seen that the cause of death mentioned therein is due to asphyxia due to strangulation and viscera and blood was preserved for chemical analysis. 19 Learned counsel for the appellant urged that the deposition of PW1 Mahadeo, father of victim Padmabai shatters the case of prosecution in respect of alleged illtreatment, harassment, cruelty and unlawful demand by the appellant/accused and it is also submitted that the dead body of deceased Padmabai was found in a well in the field which was situated at 200 meters from the distance of accused as stated by him, and therefore, the appellant herein is not responsible for her death. 20 It is further canvassed by the learned counsel for the appellant that the prosecution case is entirely based on the circumstantial evidence and the prosecution has miserably failed to prove the circumstances against the appellant herein as well as failed to prove its complete chain against the accused unerringly 16 to draw the conclusion that the accused and the accused only is guilty for the alleged crime and none else, and therefore, submitted that the conviction and sentence inflicted against the appellant deserves to be quashed and set aside and the appellant herein is entitled to be acquitted by allowing the present appeal. 21 To substantiate the said contentions, learned counsel for the appellant relied upon the observations made by Hon'ble Supreme Court in the case of Subramaniam vs State of Tamil Nadu and another, 2009 ALL MR (Cri) 2118 (S.C.) as under : “ So far as the circumstance that husband and wife were living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and husband alone was responsible therefor. “ 22 Reliance also can be placed on the judgment in the case of Sohel Mehboob Shaikh vs State of Maharashtra, 2009 AIR SCW 4145, in which it was held that there was circumstantial 17 evidence of last seen together. Accused husband was charged of killing his wife and death of wife in room was exclusively shared by accused and victim. It was therefore held that there was no evidence to show that accused was present in room when occurrence took place and chain of circumstances was not complete. Accused was therefore held entitled to be acquitted, holding that the fact that accused had not given any explanation about unnatural death of wife as immaterial. 23 Reliance also can be placed on the observations made in the case of State of Rajasthan vs Teg Bahadur and others, (2004) 13 SC 300, in which it was held that in case of dowry death, considering the ingredients of Section 304-B of the Indian Penal Code and effect of presumption under Section 113-B of the Evidence Act, ingredients of burden of proof lies on prosecution and burden would not shift on accused merely on the basis of the allegation of prosecution that death had occurred within seven years of marriage without even proving the required preliminary facts. In the facts of the said case it was held that one of the essential ingredients of Section 304-B in respect of demand of dowry could not be established by prosecution. Hence respondent husband of the deceased could not be convicted under Section 304-B of the Indian Penal Code. 18 24 Learned A.P.P. countered the said arguments vehemently and submitted that the learned Trial Judge has rightly held that soon before the incident the victim Padmabai alone was seen in the company of accused Sharad and appellant could not explain the circumstances under which the victim Padmabai sustained the injuries, nor he could explain as to how the death of Padmabai had occurred on the spot of incident which was 200 meters away from his house and since the death of Padmabai was under suspicious circumstances within a span of 18 days from her marriage and since death of Padmabai was caused otherwise than under normal circumstances within 7 years of her marriage and further it was rightly held by the Trial Court that there is ample evidence on record to show that soon before her death she was subjected to cruelty and harassment by appellant herein and therefore, the Trial Court came to the conclusion that the death of Padmabai was dowry death and same was in the custody none other than the appellant herein, and accordingly supported the said judgment and order of conviction and submitted that no interference therein is warranted in the appellate jurisdiction. 25 With the assistance of the learned counsel for the appellant and the learned A.P.P. for the respondent, we have 19 scrutinized the evidence adduced and produced by the prosecution and after appreciating the said evidence as well as after perusal of the impugned judgment delivered by the learned Trial Judge and after considering the submissions advanced by the learned counsel for the parties, we are inclined to accept the submissions advanced by the learned counsel for the appellant, since prosecution case has been shattered by the testimony of PW1 Mahadeo i.e. father of victim Padmabai, but still he was not declared hostile and no permission was sought to put him questions in the form of cross-examination, and therefore, his evidence cements the fate of the prosecution. There is absolutely no cogent legal evidence in respect of alleged cruelty, harassment and/or illtreatment to Padmabai and unlawful demand of dowry, and hence, the charges levelled against the appellant under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act have not been substantiated at all by the prosecution against the appellant herein. Moreover, it has come in the evidence of PW1 Mahadeo that the dead body of Padmabai was found in the well