- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.21/2009 Mohammad Atik s/o Md.Maheboob Qureshi, age 25 yrs., occu.Butcher, r/o Basweshwar Chowk, Degloor Tq.Degloor Dist.Nanded. ...Appellant.. Versus The State of Maharashtra. ...Respondent... ..... Smt.S.S. Jadhav, Advocate for appellant. Shri N.R. Shaikh, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 24.11.2010 ORAL JUDGMENT (Per A.V. Potdar, J.) : 1] The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay fine in the sum of Rs.5,000/-, in default to suffer further rigorous imprisonment for six months in Sessions Case No.3/2008 vide judgment and order dated 31.12.2008, - 2 - by Additional Sessions Judge, Biloli, has questioned the correctness and legality of the said judgment in the present appeal. 2] Such of the facts as are necessary for the just decision of this appeal can briefly be stated as follows: [a] Mirza Wahab Baig Mirza Mansat Baig (PW 8), PSI, was attached to Degloor Police Station. On 1.9.2007, when he was on duty, during his duty hours, around 12 noon or so, he received a phone message that one female was murdered in Chand Manzil building situated in Basweshwar Chowk, New Sarafa, Degloor and a mob was gathered near the building and there was possibility and likelihood that problem of law and order might arise at the spot. He made an entry in the station diary and along with Dy.S.P., Police Inspector and some staff proceeded towards the spot. He noticed the dead body of one female, which is identified as the dead body of Nasrin Bano lying in the bed room on the fourth floor. Considering the requirement of the situation, he drew inquest panchanama (Exh.35) on the dead body in the presence of panch witnesses. Then the dead body was forwarded for post mortem along with requisite Police report and proforma. [b] In the mean time, Abdul Khaled Abdul Gaffar (PW 5), father of the deceased, lodged complaint (Exh.33) in Degloor Police Station. On the basis of the said complaint recorded by PSI Chavan, an offence was registered vide Crime No.99/2007 u/s 302 of the Indian Penal Code against the present appellant. - 3 - Investigation in Crime No.99/2007 was entrusted to said Mirza Wahab Baig. During the investigation, he visited place of offence and drew spot panchanama (Exh.36) in presence of panch witnesses. While drawing spot panchanama, he collected pieces of broken bangles and one broken hair pin found at the place of offence under the said panchanama. Dr.Saraswati Birappa Bendgude (PW 3) conducted autopsy on the dead body of Nasrin in Sub District Hospital, Degloor on the very day between 2-30 p.m. to 3-30 p.m. During the autopsy, she noticed following external injuries on the dead body of Nasrin: [1] Linear contusion of size 6 cm x 1 cm. on right side and 7 x 1 cm. on left side of neck between mandible and hyoid bone. [2] Linear contusion of size 13 x 1 cm. on left side of neck and extremely towards back upto 5 cm. behind right ear on neck. [3] Linear abrasion of 0.5 cm. at middle of lower lip. [4] Ligature mark dissection reveals ecchymosed subcutaneous areolar tissue. Some laceration of muscle seen. During the internal examination of the dead body, she noticed right and left lungs were congested and emphysematous patches were seen. Pericardium was congested. Heart was found with full of blood. She also noticed in the stomach 100 gms. of semi solid material and particles of rice and Dal in small intestines. Liver, spleen and kidneys were congested. According to her, cause of death was due to cardio respiratory arrest due to asphyxia due to strangulation. She preserved the viscera to be sent for the chemical test. These post mortem notes are at Exhibit 22. - 4 - [c] On the same day, the appellant was put under arrest under the arrest pnchanama. While in Police custody, the appellant made voluntary disclosure in presence of panch witnesses, which was recorded in presence of panch witnesses (Exh.18), which led to recovery of Odhani (a shawl like cloth used by females for covering head and shoulders), which was of dark yellowish color, VCD/DVD wire, one sky blue color note-book and one refill of ball pen kept in the cupboard in the bed room of the appellant situated on the top floor of Chand Manzil building. These articles were recovered under recovery panchanama (Exh.19). During the investigation, statements of certain witnesses were recorded including the relatives of the deceased. After the investigation was over, charge-sheet was filed against the appellant before J.M.F.C., Degloor and he committed the trial against the appellant to the Court of Additional Sessions Judge, Biloli, by passing requisite committal order on 4.1.2008. [d] Record and proceedings received from the Court below show that the learned Additional Sessions Judge framed the charge at Exhibit 6 against the appellant for the offence punishable u/s 302 of the Indian Penal Code, to which the appellant pleaded not guilty and claimed to be tried. To substantiate the charge leveled against the accused, prosecution has examined total eight witnesses before the lower Court. They are : [1] Balbharati Kailasbharti Bharati (PW 1), a Police Constable on patrolling duty in the night between 31.8.2007 and 1.9.2007. - 5 - [2] Purushottam Naganna Bogulwar (PW 2), panch witness to the voluntary disclosure statement made by the appellant while in Police custody on 4.9.2007 leading to the recovery of Odhani, VCD/DVD wire, notebook and ball pen refill. [3] Dr.Saraswati Birappa Bendgude (PW 3), an autopsy surgeon, who conducted post mortem on the dead body of Nasrin. [4] Dr.Sami Khan Mainoddin Khan (PW 4), who examined Nasrin in the early hours of 1.9.2007 at the residence of the appellant around 1-00 to 1-30 a.m. and after the examination, declared Nasrin as dead. [5] Abdul Khaled Abdul Gaffar (PW 5), father of the deceased Nasrin, who is also complainant, who lodged the complaint in Degloor Police Station. [6] Shaikh Akhtar Shaikh Jainoddin (PW 6), is panch witness to the inquest panchanama (Exh.35) and panch witness to the spot panchanama (Exh.36). [7] Shivkant Govindrao Tekale (PW 7), the person running the hotel at Degloor where in the night of 31.8.2007, the appellant took the food. [8] Mirza Wahab Baig Mirza Mansat Baig (PW 8), the investigating officer in this case. [e] The defence of the appellant was that at the time of alleged incident, he was not present at his residence. In other words, the appellant took the plea of alibi and according to him, Nasrin committed suicide as marriage of Nasrin with him - 6 - was against her wishes. In his defence, apart from his statement recorded u/s 313 of the Code of Criminal Procedure, he had also filed a written explanation wherein he had stated that his engagement with Nasrin had taken place one year prior to their marriage as for one or the other reason after the engagement, the marriage was delayed and postponed for one year. The complainant has a second wife by name Rehanabegum, who had one daughter by name Shahin. Shahin was unmarried at the time of marriage of Nasrin with the appellant. On the day of the incident, he had been to his shop where he worked till 9 p.m. On his way to his house, he met with his friend Shankar. He and Shankar had been to the hotel of Shivkant Tekale (PW 7) where they took food. Around 12-00 to 12-30 a.m., his brother Kasim came there and informed him that body of Nasrin appeared to be cool and she was not talking. He along with his brother came to their residence. At that time, they found Nasrin was kept in the drawing room of his father. Doctor had already arrived there. The doctor examined Nasrin and declared her dead. Lateron, he came to know that marriage of Nasrin was performed with him against her wishes and hence, she might have committed suicide. 3] Before considering the submissions of learned counsel for the appellant and the learned APP for the respondent – State, it is necessary to advert to the evidence of the material witnesses examined by the prosecution before the Court below. It transpires from the evidence of PW 1 Balbharati that during the intervening night between 31.8.2007 and 1.9.2007, he was on patrolling duty along with Police Naik Laxman Doiwad. They were patrolling on Juna Sarafa, New Sara, - 7 - Mondha area. When they reached at Basweshwar Chowk, new Sarafa, around 2-00 a.m., they heard cries from Chand Manzil building. When he went there for inquiry, he met the accused on the first floor. When he enquired with the accused about the cries, he and Police Naik were not allowed to go inside the building as it was told to them that females in the building were observing Parda and hence they should not go there. It was also told to them that it was their family matter and they need not bother. He identified the appellant before the Court as the person, who prohibited them to enter in Chand Manzil building. In his cross-examination, he admitted that he had not informed that he heard the cries from Chand Manzil building after he returned in the Police Station after completing the patrolling duty. 4] Purushottam Naganna Bogulwar (PW 2), before whom the appellant made disclosure statement, which was recorded in memorandum panchanama (Exh.18), has stated that in his presence and in the presence of co-panch, the appellant made statement that he was ready to produce Odhani, VCD/DVD wire, notebook and refill of ball pen used at the time of incident from his house. Then the appellant took them to his house from where he produced these articles, which were recovered under recovery panchanama (Exh.19). He identified Odhani – article 12, seized wire – article 13, notebook – article 14 and ball pen refill – article 15 as the articles recovered at the instance of the appellant from his residence and seized under memorandum (Exh.19). He has admitted in his cross examination that certain criminal cases are pending against him in the said Police Station. He has further admitted that appellant had agreed to produce the articles from his - 8 - house, but has not mentioned the exact spot where those articles were kept by him in his house. He denied that nothing was recovered in his presence and he is habitual panch witness of Degloor Police Station. He admitted that personally he has not seen the appellant while opening the latch of the room from where the articles were recovered as he was standing behind all the members of the raiding party. 5] Even though there is marathon cross-examination of Dr.Saraswati Birappa Bendgude (PW 3), wherein she has admitted that in cases of strangulation, generally tongue is protruded, but it is possible in cases of hanging also. She denied that in the instant matter, existence of ligature mark itself suggests the possibility of hanging. At the end, in clear words, when she was questioned that the symptoms noted by her in the post mortem notes are always possible in case of strangulation as well as in case of hanging, to which she replied that these symptoms are rarely noted in cases of hanging and more possibly in cases of strangulation. But she further clarified that such symptoms are more possible appearing in case of hanging than strangulation. 6] Dr.Sami Khan Mainoddin Khan (PW 4), examined deceased Nasrin in the early hours of 1.9.2007 around 1-00 to 1-30 a.m. and after examination, she was declared dead. There is no material cross-examination of this witness by the defence. - 9 - 7] Abdul Khaled Abdul Gaffar (PW 5) is father of deceased Nasrin. It transpires from his evidence that around 2-00 a.m. on 1.9.2007, he received a telephone message from Degloor from the brother of the appellant by name Kasim that Nasrin was not talking and her body had become cold. On receipt of this message, he along his relatives proceeded and reached Degloor around 10-00 to 10-30 a.m. Residence of the appellant is situated on the fourth floor of the building where the dead body of Nasrin was found kept in the drawing room of the father of the appellant. Some blackish marks were noticed on the throat of Nasrin. Injury marks were noticed on her lips. Hairs of Nasrin were in loose condition. At that time, brother of the appellant gave one photo copy of chit written in Urdu language. As he was not able to read Urdu language, the contents therein were read over through his cousin. The contents of the chit show that Nasrin had died of her own for which nobody should be blamed. It was also requested in the said chit that the appellant should marry her younger sister. Her ornaments should be given to her younger sister and no other person should wear those ornaments. There should not be enmity in both the families on account of her death. According to him, the wordings about the contents of the chit are not usually used in Andhra Pradesh as he is resident and native from Andhra Pradesh where Nasin – the deceased was born and brought up. As he suspected some foul-play, he lodged the complaint (Exh.33) in Degloor Police Station. It transpires from his cross examination that on his inquiry with the father of the appellant, it was informed that the incident occurred during the night hours some where between 10-30 p.m. to 2-00 a.m. He had not lodged any complaint with the Police till the Police came at the spot and - 10 - drew inquest panchanama on the dead body of Nasrin. Shaikh Akhtar Shaikh Jainoddin (PW 6) was present at the time of inquest and spot panchanama as well as when the contents of chit were read over to him. He admitted that there were old relations in the family of the appellant and his family before marriage of Nasrin with the appellant. One year prior to marriage of Nasrin with the appellant, father and brother of the appellant came to his house with the proposal of marriage of Nasrin with the appellant. He denied that as Nasrin was not ready for this proposal, the marriage was delayed for about one year. He denied that father of the appellant told him that Nasrin committed suicide by hanging in her bed room and the body was removed, when legs of the Nasrin were resting upon the cot, by Kasim – the brother of the appellant. He also denied that it was informed to him that thereafter Nasrin was brought in the drawing room where water was offered to her as well as doctor was called and she was examined but the doctor declared her dead. He also denied that his first wife Rehana was insisting that her daughter Shahin should be given in marriage to the appellant. 8] Shaikh Akhtar Shaikh Jainoddin (PW 6) is the witness to the inquest panchanama (Exh.35) and spot panchanama (Exh.36) through whom the contents in both the panchanamas were got proved by the prosecution. 9] It transpires from the evidence of Shivkant Govindrao Tekale (PW 7) that he is running a hotel at Degloor. On the day of incident, around 9 p.m., the appellant came in his hotel along with his friend Shankar. Both of them consumed beer. - 11 - Thereafter, Shankar went away. The appellant remained in the hotel. He consumed ‘Khodka’ (a type of country liquor). Then he consumed non-vegetarian meal. At the time of payment of bill, the appellant was found short of Rs.40/- than the bill amount. At that time, one of the waiter casually enquired with him as to how he had taken meal in the hotel. At that time, the appellant informed that there were some differences with his wife and hence he took meal in the hotel. In his cross examination, he admitted that at the time of closing of the hotel, brother of the appellant came there. Some talk took place between them. They were talking about the wife of the appellant and there upon, both of them went away from the hotel. 10] Heard learned counsel for the appellant followed by the submissions of the learned APP appearing for the State. It is urged across the Bar by the learned counsel for the appellant that on perusal of the evidence of Dr. Saraswati Birappa Bendgude (PW 3), who had conducted autopsy on the dead body of the deceased, she had nowhere mentioned the time of death of the deceased in the post mortem report. It is also urged that on perusal of the evidence of Shivkant Govindrao Tekale (PW 7), the defence is able to establish that till 12-00 to 12-30 midnight, the appellant was present in his hotel and it is required to be considered that his brother came to call him, who informed the appellant that Nasrin was not talking and her body had become cold. It was also submitted across the Bar that Dr.Sami Khan (PW 4), who was called to examine Nasrin, had examined Nasrin around 1-00 to 1-30 a.m. - 12 - of 1.9.2007, his evidence clearly establishes that at the time of death of Nasrin, the appellant was not present in his house. According to the learned counsel for the appellant, the defence was able to put up the probable defence of alibi at the time of alleged incident. The spot panchanama shows that there was no inside latch to the bed room of the appellant, a possibility can not be ruled out that either Nasrin had committed suicide or somebody might have caused her death. It is also urged that the photo copy of the chit, which was handed over to the father of the deceased, establishes that Nasrin had committed suicide and her death is not homicidal. Considering this aspect, it is urged that benefit of doubt be given to the appellant and the appeal be allowed. Per contra, it is submitted across the Bar by the learned APP appearing for the respondent – State that this is a case of custodial death. Nasrin had married with the appellant in the month of May, 2007 while the incident occurred in the night between 31.8.2007 and 1.9.2007 i.e. within three months after Nasrin married with the appellant. It is also urged that if Nasrin had committed suicide, as the defence is so taken by the appellant, then either the spot panchanama or the articles recovered from the place of offence, should suggest that it was a case of suicide. Since false explanation is offered by the appellant, is one of the additional circumstance to draw an adverse inference against the appellant. It is also urged that even though this is a case of circumstantial evidence, the fact stands that the incident occurred in the bed room, exclusively occupied by the appellant and the deceased, it is for the appellant to offer proper explanation u/s 106 of the Indian Evidence Act, which is not offered by the appellant either in the cross-examination - 13 - of the prosecution witnesses or by bringing such type of circumstances on record. Hence, it is prayed that the appeal may be dismissed. 11] Considering these submissions advanced across the Bar by the learned counsel for the appellant and the learned APP for the State and in the light of the admitted fact that the death of the deceased occurred within the span of three months after her marriage and admittedly it is an unnatural death, it is necessary to consider whether the death of the deceased is suicidal or homicidal. For this consideration, mere medical evidence is not sufficient, but the medical evidence is required to be considered in the light of circumstantial evidence. It is opined by the autopsy surgeon Dr.Saraswati Bendgude (PW 3) that as per the post mortem examination, the cause of death was due to cardio respiratory arrest due to asphyxia due to strangulation. While discussing the evidence of this autopsy surgeon, we have taken a note that at the end of marathon cross-examination, she has stated that it is not true to say that the injuries noticed and mentioned in column no.17 of the post mortem report are more possible appearing in case of hanging than in case of strangulation. In other words, these symptoms are possible in cases of strangulation and not in cases of hanging. This opinion is required to be considered first in the light of circumstantial evidence by way of spot panchanama. In the spot panchanama, there is reference of existence of beam in the bed room where the deceased and the appellant were residing. In the spot panchanama, we also find reference of one bed / cot. The height of beam from the top of that bed is 5 ft. 6 inches. It is to be noted that the height of the - 14 - deceased nowhere came on record in the oral evidence of the prosecution witnesses. Apart from it, the message received by the appellant through Kasim that body of Nasrin was cold and she was not talking, the evidence of Dr.Sami Khan (PW 4) shows that he was not informed that Nasrin committed suicide and he was called for medical assistance to save her life. No message was given to the father of the deceased Nasrin that she had committed suicide in her bed room. This is an unnatural conduct on the part of the relatives of the appellant as projected from the cross-examination of Abdul Khaled Abdul Gaffar (PW 5) – father of the deceased. One more aspect requires serious consideration and that is, as per evidence of Purushottam Bogulwar (PW 2), the witness to the voluntary statement made by the appellant while in custody on 4.09.2007, resulted in the recovery of the notebook in which alleged suicidal note was written and recovery along with Odhani and DVD/VCD wire. The fact remains that if the notebook wherein the alleged suicidal note was written, was recovered on 4.9.2007, then as to when photo copy of the suicidal note was prepared, which was handed over by brother of the appellant to Abdul Khaled (PW 5) – the complainant or to the investigating officer that the suicidal note was kept at visible place, still the fact remains that at what point of time, the photo copy of the suicidal note was prepared and why the photo copy of suicidal note was prepared. The inference to be drawn that this is an attempt on the part of the appellant and his relatives to hide the reality and to create a false and concocted story that Nasrin had committed suicide. Thus, the medical evidence coupled with these circumstances lead to draw the inference that the death of the deceased is homicidal and not - 15 - suicidal. 12] Once it is concluded that the death of the deceased is homicidal and not suicidal, at the same time it is not under dispute that the death of the deceased occurred / took place in the bed room exclusively occupied by the appellant and the deceased. In other words, the place where the incident admittedly occurred was occupied and possessed exclusively by the deceased and the appellant, then it is a case of custodial death. From the evidence of Dr.Sami Khan (PW 4), it is seen that he examined the deceased around 1-00 to 1-30 a.m. of 1.9.2007, then it is to be held that the death occurred prior to 1-30 a.m. or so. In that case, the defence of alibi taken by the appellant in view of the evidence of Shivkant Tekale (PW 7) is not a probable defence as at 2-00 O’clock, his presence was noticed by Police Constable Balbharati (PW 1) on patrolling duty in Chand