1 app-524-04.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.524 of 2004 Tatyasaheb Limbraj Patil ..Appellant Vs. The State of Maharashtra ..Respondent Mr. Prakash Naik for the Appellant Mr. J. P. Yagnik APP for State CORAM:­ NARESH H. PATIL, & Mrs. MRIDULA R. BHATKAR, JJ DATED :­ JUNE 8, 2011. ORAL JUDGMENT (PER Mrs. MRIDULA BHATKAR, J.) 1 This appeal is directed against the Judgment and order dated 6­3­2004 passed by 5th Additional Sessions Judge, Solapur, convicting the Appellant­accused for the offence punishable under Section 302, 498­A and 201 of the Indian Penal Code (IPC). He is sentenced to suffer life imprisonment under Section 302 of IPC. 2 The incident of murder has taken place on 26­4­2003 at Barshi, District Solapur in the morning at 6.30 to 7.00 a.m. Victim Renuka Tatyasaheb Patil was the wife of the Appellant. The Appellant and the Victim got married on 6­2­2003, hardly 2 1/2 months prior to the incident. At the time of marriage two tolas of gold, some utensils and an amount of Rs.50,000/­ by way of dowry was given to the Appellant. As per the case of the prosecution, the Appellant and the victim had a smooth married life just for one month, but thereafter a demand of Rs.1 lac was made by the Appellant and the said demand of Rs.1 lac could not be 2 app-524-04.sxw fulfilled by the father P.W.­1 of the victim or her relatives. Deceased Renuka had complained to her father P.W.­1 and brother P.W.­6 about the demand of Rs.1 lac made by her husband. Immediately, after the marriage, on the festival of Gudipadwa, she had visited her maiden home and at that time she voiced about the said demand. Thereafter telephonically she has communicated about the harassment and assault at the hands of the Appellant, to her brother. On 26­4­2003, the victim's father was informed on telephone about the death of his daughter, therefore, he along with his relatives and some villagers rushed to the house of his daughter where they found that she was burnt and was dead. P.W.1­ the father of the Victim lodged an FIR and the offence under Section 498A, 302 and 201 was registered at C.R. No.58 of 2003 at Barshi Police Station against the Appellant. The police carried out the investigation. The postmortem was performed and the cause of death was declared as Asphyxia due to throttling. In the course of investigation, the police drew panchanamas on the same date and the statements of the witnesses were recorded within the couple of days. Police sent the articles to C.A. and obtained report. After completion of the investigation the charge sheet was filed. This being a case of the murder, it was committed to the Court of Session and charges under the relevant sections was framed accordingly. The trial was conducted before the Sessions Judge and was concluded in the conviction. Being aggrieved by this Judgment and Order the present Appeal is filed by the Accused. 3 The Learned Counsel appearing for the Appellant has raised the challenge mainly on the ground that there is no eye witness and the case is based 3 app-524-04.sxw only on circumstantial evidence and motive is also not established. The motive brought on record by the prosecution is an after thought. How and in what manner the victim has died is not proved by the prosecution and the Learned Sessions Judge has erred in appreciating the evidence of witnesses on the point of the incident. The evidence of the police witness P.W. 7, 8, 9 & 10 is inconsistent and ought not to have been relied. The learned Counsel argued that the prosecution has brought a very weak evidence on the point of motive that there was a demand of Rs.1 lac by the Appellant­Accused and the victim has complained about the said demand and the harassment including assault at the hands of the Accused, to her family members i.e. P.W 1 her father and P.W.6 her brother. He has submitted that in a short span of their married life i.e 2 1/2 months, they had smooth married life for a month and as per the prosecution, thereafter the demand was made. Thus, the period of harassment and demand was very short i.e. hardly a month and it appears improbable. He further pointed out that in the evidence of P.W.6, he had stated that a phone call was made by the victim in the house of PW­3 who was their neighbour. At that time according to the prosecution the witness was informed that her husband has given her a threat that if the amount of Rs.1 lac was not paid then there would be a serious consequence. The Leaned Counsel submitted that if this would have been the position, then it was natural on the part of the family members to lodge a complaint and make inquiry about the said demand. However, no such complaint of harassment and demand was made by the family members to the police against the Appellant. The Learned Counsel pointed out that in the cross­ 4 app-524-04.sxw examination of P.W.­1­father of the victim has given admission that he decided to lodge a complaint against the Appellant only when he was informed about the cause of death of his daughter was Asphyxia due to throttling. The Learned Counsel argued on the background of the communication of harassment and demand of Rs.1 lac. The appellant was a prime suspect and P.W.­1ought to have been lodged complaint against the Appellant, as soon as they reached to the house of the daughter. Why father P.W.­1 waited to lodge complaint till postmortem report was known ? P.W.­3 at whose residence telephone call of the victim about the harassment was received by P.W­6, did not say a word about such telephone call and conversation between the victim and P.W.­6 and, therefore, the story of the demand of Rs.1 lac and so also the communication in respect of the harassment or assault at the hands of the Accused to the victim, false and cooked up. 4 The authenticity of the FIR Exhibit­16 is challenged as P.W.­1 has admitted that the contents of the FIR were narrated by the Sarpanch of the Village and he merely signed the same. The learned Counsel further pointed out that the postmortem report shows the timing as 2.00 p.m. and the FIR was registered at 1.55 p.m., thus it is obvious the postmortem was performed before the recording of the FIR. The Learned Counsel drew our attention to Exhibit­29 which is a statement/FIR given by the Appellant. The Learned Counsel submitted that Exhibit­29 is so called FIR or statement of the Appellant is not recorded honestly but it is false document fabricated by the investigating agency. These submissions are based on the discrepancies in the evidence of P.W.­7, P.W.­9, and 5 app-524-04.sxw P.W.­10. He pointed out that scribe P.W.­7 in his chief had stated that he reduced into writing the contents of Exhibit­29 and has signed below. However, subsequently when he was recalled he admitted that he did not record Exhibit­29. The Learned Counsel pointed out that the case of the prosecution in respect of the time of the incident and how it had occurred is not proved as the evidence of the police witnesses is inconsistent. He submitted that the timing of the FIR and the statement of the Accused and who recorded which statement could have been ascertained on the basis of the relevant entries in the station diary. However, prosecution did not produce such entries in the station diary. 5 While assailing medical evidence Learned Counsel has submitted that evidence of the Medical Officer i.e P.W.­2 is not accurate and cannot be believed. The rough notes which is a primary documentary evidence, is admittedly not produced before the Court. The Medical Officer has admitted that histopathology is conducted to ascertain whether the fracture of the hyoid bone is antemortem or postmortem and in the absence of histopathology the prosecution could not prove that the fracture of hyoid bone was antemortem. Moreover, while burning if the person inhales the smoke then the particles of the carbon are also inhaled by the person and such particles are definitely found in the trachea and larynx. It was necessary on the part of the Medical Officer –P.W.­2 to mention about presence or absence of soot particles in the postmortem report. The Learned Counsel highlighting these deficiencies in the medical evidence rendered by the prosecution submitted that the benefit of these deficiencies is to be given to the Appellant, as the prosecution could not come 6 app-524-04.sxw with full proof case. 6 The Learned Counsel further on the point of scene of offence panchanama Exhibit­23 argued that the colour of the walls of the kitchen which was originally white was turned grey because of the smoke and the pieces of the clothes of the victim were lying scattered in the room. The Learned Counsel argued that if as per the case of the prosecution the victim would have been throttled first and burnt subsequently, then she must have been burnt in lying horizontal position and in that event the walls of the room would not have become smoky and the pieces of her clothes would not have also seen scattered in the room. The condition of the walls and the pieces of her clothes suggest that victim must have been standing or her body posture must have been vertical when she was on fire. The Learned Counsel argued that the medical evidence is not concrete and credible and circumstances do not support to hold that the fracture of the hyoid bone was antemortem. Circumstantial evidence produced by the prosecution is not trust worthy. Therefore, finding of the Learned Sessions Judge of convicting the Accused on the basis of this insufficient evidence is illegal and deserves to be set aside. He further points out that conduct of the accused cannot be given much importance when prosecution case is weak and unreliable. The Supreme Court has laid down the guide lines on appreciation of evidence and on this point the Learned Counsel placed reliance on Mulakraj & ors Vs. State of Maharashtra reported in (1996) 7 Supreme Court Cases 308, and Mula Devi & Anr Vs. State of Uttarakhand reported in (2008) 14 Supreme Court Cases 511, wherein the manner in which the victim wife was died and the 7 app-524-04.sxw other facts in both the cases and the present case are more or less similar. In both the cases, the cause of death of the victim was Asphyxia and thereafter the bodies were burnt. On the point of appreciation of evidence a reliance was placed on Judgment of Division Bench in Jagannath s/o Damaji Pol Vs. State of Maharashtra reported in 2009 ALL MR (Cri) 2231. 7 Per contra, the Learned Prosecutor argued that while appreciating the evidence of the prosecution, this Court needs to consider the date of the marriage and the short span of the married life of the Appellant and the victim. The Learned Counsel pointed out that the victim was residing with her husband and she did not complained for one month and thereafter she complained about the demand of Rs.1 lac. He point out that there was a demand of dowry of Rs. 50,000/­ at the time of marriage. On the point of demand of dowry of Rs. 50,000/­ and the terms and conditions of the settlement of the marriage, the Learned Prosecutor relied on the evidence of P.W.­1 and P.W.­6 and so also P.W.­5 Haridas Kale, who happened to be a middle man at the time of marriage. The Learned Prosecutor argued that the demand of dowry or money is never made openly and no documentary evidence is possible and available to prove such demand. On the basis of three witnesses the prosecution has proved that monetary gain was the motive. The Learned Counsel argued that while appreciating the medical evidence the injury sustained by the victim which are mentioned in the postmortem exhibit­18 are also to be taken into account. He drew our attention to the description of the injuries and observations of the Medical Officer in respect of the said injuries. Non production of notes by the 8 app-524-04.sxw Medical officer could not be given weightage as the notes are produced only to refresh the memory. He submitted that spot of the Panchanama Exhibit­23 reveals that the stove and tube of the gas were melted when the victim was burnt. If it would have been an accidental death and if the accused and other persons would have come to rescue her to extinguish fire then melting or damage to the property to such a high degree would not have been caused. He drew our attention to the fact that the body had sustained 100% burn injuries. The Learned prosecutor further submitted that two defence witnesses D.W.­1 Bhimrao Nandvate and D.W.­2 – Muzafarali Akbarali Patel were examined. These witnesses have stated that the fire brigade arrived and fire was extinguished. Thus the water was inside the room and this must have led the clothes of the victim into pieces; scattered in the room. He further pointed out that through defence witnesses the accused has admitted his presence at the time of the incident. He further argued that non production of station diary and recording of Exhibit­29 i.e. statement of Appellant moreover non verification of the said statement by higher officer, are the lapses in the investigation. However, these lapses could not help the defence to dislodged the case of the prosecution which is proved beyond the reasonable doubt. 8 Admittedly present case stands on the circumstantial evidence wherein the medical evidence is a vital and decisive issue. The death of the victim was an unnatural. It may be accidental, suicidal or homicidal. Nothing is suggested that it could be suicidal. The victim was married to the appellant 2 ½ 9 app-524-04.sxw months back and there was no reason to commit suicide. Prosecution labels it not accidental but homicidal death mainly on the basis of medical evidence. The first question needs to be answered whether the prosecution has proved that the death was caused due to Asphyxia by throttling or it was a death due to burn injuries. We went through the medical evidence of P.W.­2, postmortem notes Exhibit­18, so also the assessment of medical evidence by the Learned Sessions Judge especially on the point of Asphyxia and burn injuries. The material portion in the postmortem notes Exhibit­18 clause 17, is as follows: (a) Swelling in front of neck of size 6 x 4 cm (b) 100% burns (c) on examination of base of tongue bruising present (d) on palpation fracture of hyoid bone present Thus the injuries (a), (c) and (d) are mentioned as definitely Antemortem and injury (b) 100% burns is postmortem. Histopathology was not conducted. The Medical Officer has deposed that it being the rural hospital, the facility/equipments which are required for histopathology were not available, but the postmortem was performed by two Medical Officers who were strongly in agreement that fracture of hyoid bone was antemortem, swelling to neck was also Antemortem. Moreover the tongue was protruded in between the teeth. About the mention of the soot particles in larynx and trachea, the Medical officer has given admission that in the burn cases if the person inhales the smoke then such carbon /soot particles are found in trachea and larynx. Therefore not 10 app-524-04.sxw mentioning the negative fact i.e. carbon particles not found in larynx and trachea in the postmortem does not dilute the evidentary value of the postmortem report. On the other hand, if the presence of soot particles would have been mentioned in the postmortem report, then benefit could have been given to the Accused but not in the other way. The evidence of Medical Officer is found credible. Defence could not shake this evidence. We therefore, accept the finding given by the Learned Judge that the cause of death was asphyxia due to throttling and burning was not antemortem but postmortem. Thus medical evidence unerringly lead us to a conclusion that the burn injuries were postmortem and victim had fracture and the cause of her death was Asphyxia due to throttling. This medical evidence is not dislodged by the defence. If the medical report is accepted then we have to consider the entire evidence on that background. 9 On the point of motive, the prosecution has tendered evidence of P.W.­1 and P.W.­6. As per the evidence of the witnesses there was a demand of money by the Appellant since one moth prior to the death of the victim. We accept the submissions of learner Prosecutor that such demand of Rs.1 lac made by a husband to his wife and persuasion of the said made to the family members of the wife, may not have any documentary but the oral evidence. In the present case P.W.­1 has stated about it and this evidence is corroborated with the evidence of P.W.­6 brother of the victim. The evidence of P.W.­5­ Hardas Kale supports that earlier there was a demand of dowry of Rs.50,000/­. The prosecution has proved the motive that the monetary demand was a reason for assault or harassment. 11 app-524-04.sxw 10 After killing Renuka the culprit wanted to burn her body undoubtedly in order to destroy the real cause of the death. We also take note that the victim was burnt 100%. Panchanama Exhibit 21 reveals that her face, chest and the entire body was completely burnt. It shows the act of burning was going on for some period. 100% burn in very short period is not possible if stove blasted in small house and somebody has rushed to extinguish the fire. The incident has taken place in the house where the accused and the deceased were residing as husband and wife since 2 ½ months. Burning was noticed at about 6.30 a.m when the incident takes place within the four walls of the house and fire was extinguished by calling fire­brigade. In that event, the presence of any other witness is not possible. It is not expected that any outsider to visit the house in such early hours of the morning and can throw light on how the murder has been committed. When the husband and wife are residing together in the house and incident takes place in the odd hours and no other consistent fact is introduced showing the absence of the husband, then we do not find any reason to accept the case of the prosecution about the presence of the accused who is the husband of the deceased. We have considered all three rulings produced before us by the defence. Apparently the facts in Mulkhraj & Ors. (supra) and Muladevi & Anr. (supra) look similar to the facts of the present case, however, on careful reading we found that the facts of the present case are distinguishable especially on the point of the presence of the accused on the spot. In all the three cases, the victim was the wife of the respective accused. All of them died due to asphyxia and medical evidence shows that the burning injuries found on their 12 app-524-04.sxw bodies were postmortem and not antemortem. In both the cases the Apex Court held that the victims were murdered in the house and no information was given by the husband to the relatives of the victims. Yet the Supreme Court while appreciating the evidence on the conduct of the accused in Mulakraj case (supra) in paragraph 21 has observed as follows: “Consequently the aforesaid subsequent conduct on which strong reliance has been placed by the High Court to bring home the offence to the accused cannot really assist the prosecution and it does not represent a strong and clinching link in the chain of circumstantial evidence which is incompatible with any other hypothesis save and except the guilt of the accused.” While setting aside the Judgment of conviction of the trial court and High Court, the Supreme Court in Muladevi’s case (supra) in paragraph 12 has held as follows: “It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person” In the said Judgment the guide lines in Padala Veera Reddy Vs. State of A.P reported in 1989 Supp(2) SCC 706 which are reproduced in paragraph 11 as follows: (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and 13 app-524-04.sxw firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” Keeping in mind the settled law on the point of appreciation of circumstantial evidence, we considered the entire evidence and the facts of the present case. In the present case, no other person except accused and the victim were in the house. It was a small house of two rooms. Unlike facts in Mulakraj case(supra) no defence of alibi was taken by the Accused when incident has taken place. The presence of Accused is denied by the defence, however in the evidence of D.W.­2 he has specifically stated that when he reached to the spot in the morning he saw the victim has burnt and the Accused and other persons were trying to extinguish the fire. Thereafter fire brigade came and extinguished the fire by watering it. 11 It is necessary to construct the sequence of all the incidents. On 26­4­2003 in the morning a phone call was received by the family members and they rush to the spot. The panchnama Exhibit­21 was drawn at about 11.00a.m. to 11.30 a.m. P.W.­3 is a panch for inquest panchanama. Though she is 14 app-524-04.sxw considered as interested witness yet the inquest panchanama, nothing can be disputed in respect of inquest panchanama as the burnt body of the victim was found. From the evidence of the prosecution, it shows that the incident has taken place in the morning between 6.30 a.m. to 7.00 a.m, then the question comes in mind that if the incident has taken place at 6.30 a.m. and thereafter the fire brigade had come to extinguish the fire immediately, her body was lying in the house as it is from morning till 11.00 a.m. The Appellant­accused at the relevant time was residing in the said house along with the victim and they being a husband and wife, we can not be oblivious to the relevant facts pointed out about the conduct of the Accused as per section 8 of the Evidence Act. On Exhibit 29 no verification of Senior officer is found as it is seen on Exhibit 16. In the light of contradictory evidence of police personnel as regards recording of Exhibit 29, submissions of the Learned Defence Counsel that Exhibit 29 is fabricated document and the said statement of Appellant is false and manufactured are accepted. Thus even the evidence to that point if discarded, it will at the most prove that the Appellant­Accused did not go to the police station on that date to give report in respect of burning of his wife in the house. However, not going to the police or not approaching to the hospital for medical aid are the facts