1 Criminal Appeal No.469 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.469 OF 2010 Bajirao S/o.Raoji Bagul, Age-26 years, Occu-Agriculture, R/o.Borsar, Taluka Vaijapur, Dist. Aurangabad APPELLANT VERSUS State of Maharashtra RESPONDENT Mr.Joydeep Chatterji, learned counsel for the appellant. Mr.N.R.Shaikh, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 12/07/2011 ORAL JUDGMENT : (Per P.V.Hardas, J.) 1. The appellant, who stands convicted for an offence punishable u/s. 302 of the IPC and sentenced to imprisonment for life and to pay fine of Rs.10,000/- in default of which to undergo further RI for 6 months and for an offence punishable u/s. 498-A of the IPC with a sentence of 3 years RI and to pay fine of Rs.5,000/- in default of payment of fine to undergo further RI for 3 months, by the Additional Sessions Judge-5, Aurangabad by judgment dated 04/12/2010 in Sessions Case No.412/2009, by this appeal questions the correctness 2 Criminal Appeal No.469 of 2010 of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.No.7 P.S.I. Santosh Wahule who was attached to the Vaijapur Police Station as a P.S.I., received a MLC on 15/08/2009 at about 11.45 p.m. from the Ghati Hospital at Aurangabad. The MLC was accordingly registered and the inquiry was entrusted to him. The MLC is at Exh.20. The Medical Officer, in turn informed P.S.I. Wahule that one Mangal, who had consumed some poisonous substance at her residence at about 1.00 p.m., was admitted in the Ghati Hospital and upon examination she was declared dead. P.W.No.7 P.S.I. Wahule accordingly proceeded to the scene of the offence and drew the scene of the offence panchnama in the presence of witnesses at Exh.21. From the scene of the offence, he seized ear- rings and 4 bangles. Initially, an accidental death came to be registered in the Begumpura Police Station bearing no.0/2009 and the ADR was forwarded on the same day to the Vaijapur Police Station, who registered it as AD No.42/2009. The inquiry in respect of the AD was retained by P.W.No.7 P.S.I. Wahule. Dead body of deceased Mangal was referred for post mortem examination and post mortem examination to be conducted by P.W.No.6 Dr.Vinod Bhalerao. P.W.No.6 Dr. Vinod Bhalerao noticed that deceased had sustained an injury under the scalp with contusion over left fronto temporal region of size 10cms x 8 cms. He did not notice any evidence of fracture. 3 Criminal Appeal No.469 of 2010 There was however, hemorrhage over left fronto temporal region and over cerebral area. Brain matter oedematous 100 cc grayish fluid mucosa was seen in the stomach. He opined that cause of death was poison and the viscera was referred for chemical examination. The post mortem report is at Exh.12. On 22/08/2009, a report came to be lodged by P.W.No.1 Nanasaheb, father of deceased Mangal, on the basis of which an offence punishable u/s. 302, 498-A of the IPC was registered vide Crime No.176/2009. The report of P.W.No.1 Nanasaheb is at Exh.11. The accused came to be arrested and on 24/08/2009, during custodial interrogation, the accused expressed his willingness to point out the place where a wooden stick and a tin containing poison was hidden. Accordingly, the memorandum came to be drawn in the presence of panchas at Exh.22. The accused led the police and the panch to the field of his uncle and from amidst the bajra crop, produced a tin containing insecticide and a stick. The aforesaid articles came to be seized under the panchnama at Exh.23. Article 1 is the wooden stick while the tin containing insecticide is Article 2. The seized articles were referred for chemical examination and the report of the Chemical Analyser at Exh.26 discloses that organochloro-insecticide Endosulfan (Thiodan) and petroleum hydrocarbons was found. Viscera of deceased was referred for chemical examination and the report of the Chemical Analyser at Exh.27 reveals that fatal dose of Endosulfan was detected in the viscera. Further to the completion of the investigation, a charge sheet against the appellant/accused came to be filed. 4 Criminal Appeal No.469 of 2010 3. On committal of the case to Court of Sessions, Trial Court vide Exh.7 framed charge against the appellant for an offence punishable u/s. 302, 498-A of the IPC. The appellant/accused denied his guilt and claimed to be tried. Prosecution in support of its case examined 7 witnesses. The Trial Court accepted the evidence of P.W.No.1 Nanasaheb, P.W.No.2 Mandabai, P.W.No.3 Jalnath for concluding that the accused had illtreated deceased Mangal and thereby he had committed the offence punishable u/s. 498-A of the IPC. The Trial Court relied upon the discovery of the stick and tin containing the insecticide and the evidence of the Medical Officer and concluded that the prosecution had proved the offence against the accused beyond reasonable doubt. The Trial Court also repelled the defence of the appellant/accused that deceased Mangal may have committed suicide. 4. In order to deal with the submissions advanced before us by the learned counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses. P.W.No.1 Nanasaheb Mhaske, father of deceased Mangal, states that Mangal was married to the appellant accused on 06/05/2007. He has stated that an amount of Rs.7,000/- was paid as dowry. He has also admitted that the accused is an agriculturist who owns agricultural land. He has further stated that Mangal was treated well initially, thereafter she was illtreated as she was unable to conceive a child and was not able to do agricultural work. P.W.No.1 Nanasaheb alleges that the 5 Criminal Appeal No.469 of 2010 accused used to beat her. He has further stated that Mangal had come to his house on the day of Rakshabandhan and reside in his house for about 4-5 days and thereafter had returned back. He further states that on 15/08/2009, one Ashok Gangadhar Bagul, uncle of the appellant informed him on phone that Mangal had consumed poison. P.W.No.1 Nanasaheb states that he therefore went to the house of the accused and saw the dead body of Mangal and thereafter admitted her in the Ghati Hospital. Post mortem was performed on the next day, and thereafter the funeral was performed at Aurangabad. He has admitted that he had lodged complaint Exh. 10 on 22/08/2009. He has stated that it was alleged that the appellant/accused had forcibly administered poison to Mangal. In cross examination, he has admitted that marriage of his son P.W.No. 3 Jalnath was performed 5 months prior to the incident. He has admitted that accused and Mangal were present in the marriage and that was the last meeting he had with Mangal. He has admitted that he had informed the Medical Officer that Mangal had consumed some poisonous substance. He has also admitted that he had not lodged any complaint against the accused. He has also admitted that even after the drawing of the inquest panchnama, no complaint was lodged either by him or by the other relatives. He has then admitted that on the 3rd day, after collecting the ashes of Mangal, he started his routine work. On 22/08/2009, the Police had called him at the Vaijapur Police Station alongwith his relatives. The concerned Police Officer had disclosed to him that deceased had sustained a 6 Criminal Appeal No.469 of 2010 head injury and thereupon the police asked him to lodge a complaint. He has stated that a complaint was prepared in the police station and he signed the complaint. 5. P.W.No.2 Mandabai Mhaske, mother of deceased Mangal also states about the Mangal being married to the accused and an amount of Rs.7,000/- being paid as dowry. She has further stated that Mangal had come on the Rakshabandhan and had disclosed to her that the accused was illtreating her and harassing her on the ground that she could not beget a child. She has further stated that her son P.W.No.3 Jalnath accompanied Mangal to her home. Thereafter a message was received that Mangal had consumed poison. In cross examination, she has admitted that she had met the accused on 7-8 occasions after 6 months of the marriage. She has admitted that no quarrel have taken place between her and the accused. She has also admitted that she had visited the house of the accused on 7-8 occasions while the accused had come to her house on 2-3 occasions. She has also admitted that she had met Mangal last at the time of marriage of her son Jalnath. She could not state if medical treatment was being provided by the accused for the infertility of Mangal. Statement of this witness also came to be recorded on 22/08/2009. 6. Prosecution has also examined P.W.No.3 Jalnath, brother of deceased Mangal, who states that Mangal used to disclose about the 7 Criminal Appeal No.469 of 2010 accused assaulting her and calling her name on account of her infertility. He states that Mangal had disclosed about the illtreatment after about 6 months of marriage. He further states that Mangal had been to their house on the Rakshabandhan and had disclosed about the illtreatment. He further states that Mangal had disclosed to him that the accused used to illtreat her on account of the fact that Mangal could not conceive and she could not do agricultural work. In cross examination, he has admitted that he used to go to the house of the accused and had never witnessed any quarrel between them. He has admitted that the accused used to talk properly with each other and family of the accused was present at the time of his marriage. He has also admitted that it was the last occasion on which he had met Mangal. 7. Shri.Chatterji, learned counsel for the appellant has urged before us that the allegations in respect of offence punishable u/s. 498-A are extremely vague and omni-bus. Apart from certain bald assertions that Mangal had disclosed that she was illtreated and assaulted by the accused, no particulars are disclosed as to when and on what days, Mangal had been assaulted by the accused. It also does not appear that Mangal had made any serious complaints as otherwise all the other relatives would have taken cognizance of the same and would not have sent Mangal to the house of the accused. Apart from that, the prosecution has made no attempts whatsoever at examining any neighbourer of deceased Mangal, who 8 Criminal Appeal No.469 of 2010 would have been the best person to depose about any illtreatment. No report about the illtreatment of Mangal was lodged by P.W.No.1 Nanasaheb. When the police had met him, he had not disclosed about the illtreatment. The report was lodged reluctantly by P.W.No. 1 Nanasaheb. According to us, therefore, the allegations of cruelty is after thought. 8. As pointed out by us above, P.W.No.6 Vinod Bhalerao has categorically stated in his post mortem report at Exh.12 that deceased have died on account of consumption of poison. The viscera report at Exh.27 also clearly reveals that poison in fatal dose was detected in viscera. The appellant accused had produced a tin containing the poison which was similar to the poison which was detected in the viscera. The learned A.P.P. therefore submits that the aforesaid circumstances would clearly indicate that poisonous substance had been administered to Mangal forcibly and against her will. The learned A.P.P. also points out to us that the container containing poisonous substance would normally be found in the room where Mangal had consumed the poison. Similarly, the learned A.P.P. contends that a small glass or a vessel would have been noticed in the house from which Mangal had consumed the poison. In the absence of these 2, according to the learned A.P.P., the inevitable conclusion is that the poisonous substance had been administered to the Mangal by the appellant forcibly and against the Will of Mangal. Shri.Chatterji, learned counsel for the appellant has 9 Criminal Appeal No.469 of 2010 urged before us that for administration of poison forcibly, the deceased would be required to be pinned down and that would cause some visible injuries, which have not been noticed in the post mortem report. It is further stated that the prosecution has not seized the clothes which were on the person of Mangal, which would reveal if traces of poison was found on her clothes. According to the learned counsel for the appellant, in cases of forcible administration of an obnoxious smelling substance like the insecticide, the poisonous substance would dribble down on the clothes and some traces would be found. Whereas in a case of a willful consumption of poison, the clothes may not show the traces of poison. It is also urged before us that a false defence would not fortify or strengthen the prosecution’s case as the prosecution is required to stand on its own legs and prove the offence beyond reasonable doubt. The learned A.P.P. contrary to the aforesaid submissions had urged before us that section 106 of the Indian Evidence Act would require the appellant accused to disclose the circumstances relating to the death of Mangal. 9. Section 106 of The Indian Evidence Act is not meant to replace the burden of proof which rests on the prosecution to prove the offence against the appellant accused beyond reasonable doubt. A reference in this behalf may usefully be made to the judgment of the Supreme Court in the matter of Shambhu Nath Mehra versus The 0State of Ajmer, 1956 SC 404. The Supreme Courtin the aforesaid 10 Criminal Appeal No.469 of 2010 judgment has held thus : The word “especially stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. 10. In the present case, we find that the deceased had sustained a head injury and the prosecution attributes the said head injury to a stick being wielded by the accused. Medical Officer i.e. P.W.No.6 Vinod Bhalerao has stated about the injury being caused on the scalp which was a contusion. It does not appear to us that the stick was shown to the Medical Officer and the Medical Officer obviously therefore has not deposed that the head injury would be caused by a stick. Thus the prosecution has tortured on the very threshold of its case by being unable to prove that the injury sustained by deceased Mangal had been caused by a stick. Coupled with this, P.W.No.6 Vinod Bhalerao has admitted in cross examination that the injuries mentioned in coloumn no.19 were possible by fall on hard surface. He has further admitted that convulsion was possible due to consumption of poison. Therefore, the possibility that the deceased may have sustained the head injury on account of fall, which may have been as a result of convulsion on account of consumption of poison, can not be altogether rulled out. In any event, the 11 Criminal Appeal No.469 of 2010 prosecution has failed to prove that the injury on the head was caused on account of a blow by a stick. We also find that there are no external injuries indicating that any force was applied in pouring of the poisonous substance in the mouth of deceased Mangal. Endosulfan which is an insecticide, is a obnoxious substance which has a strong repelling smell. Obviously, no person would accidentally consume the said substance. The aforesaid substance also can not be administered to any person under the garb that some other substance is being given to that person. The aforesaid substance can only be consumed by a person willfully or administered forcibly. For forcible administration, the deceased or the person to whom the substance is to be administered, would necessarily be required to be pinned down on the ground by holding the hands and if necessary stradding the person. The substance would then be required to be administered forcibly i.e. against the will and wish of the person. In forcible administration of such strong smelling substance, the normal tendency of the person would be to spit it out and thus there would be traces of the poisonous substance on the clothes of the person to whom the substance has been administered. In the present case, obviously the clothes which were on the person of the deceased were not referred for chemical examination. There is nothing on record to indicate that the aforesaid substance was administered forcibly to deceased Mangal. It is true that no container was found inside the room nor was any small vessel found which could have been used by Mangal for 12 Criminal Appeal No.469 of 2010 consuming the poisonous substance. A poisonous substance similar to the one consumed by Mangal came to be discovered at the behest of the appellant accused. According to us, the aforesaid 3 circumstances are incapable of excluding every hypothesis of innocence of accused and are incapable of pointing out to the accused as a sole perpetrator that it is the accused and the accused alone who has forcibly administered the poisonous substance. The prosecution has been unable to prove forcible administration of poison though the prosecution has proved consumption of the poisonous substance. 11. Deceased Mangal could not conceive and was childless. It also appears that she could not do any agricultural work. Obviously, Mangal must have been taunted on account of her infertility in the village. The frustration of Mangal can obviously be discerned in not being able to beget a child. The aforesaid circumstances i.e. infertility and the taunting of people and may be that of accused, may have led Mangal to commit suicide. Obviously, since no poisonous substance was found in the house, the possibility that Mangal may have consume the poison elsewhere in the agricultural field where a poison would be readily available, also can not be rulled out. Mangal was pronounced dead when she was examined by the Medical Officer. There is no exact time of consumption of poison. Obviously, there is no evidence that the Mangal was forcibly administered the poisonous substance. We are not inclined to accept the case of the prosecution 13 Criminal Appeal No.469 of 2010 that the poison was forcibly administered to Mangal. The Supreme Court in Hanumant Nargudkar versus State of Madhya Pradesh, AIR 1952 SC 343 has referred to the warning sounded by Baron Anderson in Regina versus Hodge (1838) 2 Lewin 227), where he said : “The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.” 12. The learned A.P.P. has also urged before us that the appellant accused has not lodged any report if Mangal had really committed suicide. It is therefore urged before us that the conduct of the appellant indicates his guilty mind. Failure to lodge complaint by itself according to us would not be a factor indicating the guilt of the appellant/accused. In any event, steps were immediately taken at informing the police about Mangal having consumed some poison. The aforesaid conduct, according to us, is not incriminating at all. Prosecution has itself failed to prove about forcible administration of poison. False defence would not buttress or fortify the prosecution’s 14 Criminal Appeal No.469 of 2010 case which has to stand and prove the offence. The false defence may at the most be taken as an additional circumstance which the Court may take into consideration only in the event the chain of circumstances is fully established by the prosecution, which excludes every hypothesis of the innocence of the accused and un- questionably points towards the guilt of the accused. In the present case, the prosecution has utterly failed to complete chain of circumstances and therefore in our opinion false defence by itself would not be a circumstance which would complete the chain against the appellant/accused. 13. Therefore, according to us, the appellant accused would be entitled to be given the benefit of doubt. The appellant/accused therefore deserves to be acquitted. 14. Accordingly, criminal appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which he was charged and convicted. Fine, if any, paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JULY 2011/cri.appeal 469-10