1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 446 OF 1992 (For enhancement of sentence) The State of Maharashtra .. Appellant Vs. Baban Kisan Kulvade .. Respondent (Org.Accd.No.1) WITH CRIMINAL APPEAL NO. 472 OF 1992 (Against acquittal) The State of Maharashtra .. Appellant Vs. 1. Baban Kisan Kulvade 2. Smt. Shantibai Shrichand Kshyatriya .. Respondents (Org.Accd.Nos. 1 and 2) Mrs. P. P. Shinde, APP for Appellant-State in both the Appeals. Mr. Niranjan Mundargi for respondent in Cri. Appeal No.446/92 and for respondent no.1 in Cri. Appeal No. 472/92. Mr. Dilip Bodake for respondent no.2 in Cri. Appeal NO.472/92. CORAM: B.H.MARLAPALLE & MRS. MRIDULA BHATKAR, JJ. Reserved on : May 07, 2010 Pronounced on: June 15, 2010 2 JUDGMENT (PER B.H.MARLAPALLE,J.) 1. Both these appeals, filed by the State Government, are directed against the judgment and order dated 20/5/1992 rendered by the learned 6th Additional Sessions Judge, Thane in Sessions Case No. 483 of 1991. In the said case, three accused were put on trial for the offences punishable under Sections 302, 498-A and 201 read with Section 34 of IPC and all the three accused came to be acquitted for the offences punishable under Sections 302 and 201 read with Section 34 of IPC. Accused No.1 has been convicted for the offence punishable under Section 498-A of IPC and sentenced to suffer RI for one year with a fine of Rs.1000/- in default RI for three months and accused nos.2 and 3 have been acquitted from the said charge. Criminal Appeal No. 442 of 1992 has been filed by the State for enhancement of sentence awarded to accused no.1 on account of his conviction under Section 498-A of IPC. Whereas Criminal Appeal No. 472 of 1992 has been filed challenging the acquittal of accused nos.1 and 2 for the offences punishable under Sections 302 and 201 each read with Section 34 of IPC. 2. As per the prosecution case, accused no.1 is the son of 3 accused no.3 and he, while working in a factory near Thane, was residing in the house of accused no.2 at the relevant time as a paying guest and the son of accused no.2 was also working with accused no.1 and thus they were friends. Soluchana, the daughter of Laxman Gangaram Gholap, was married to accused no.1 on 29/5/1989. After marriage, she stayed for about 25 days with accused no.1 in the house of accused no.2 at Boisar and thereafter for about 6-7 months she stayed with her in-laws at village Udapur, Taluka – Junnar, District – Pune. She wanted to join her husband’s company, but the accused no.1, under the pretext that there was no residential accommodation and cooking utensils etc., retained her with his parents. She got fed up and went to her maternal home at village Rohokadi, Taluka – Junnar, District – Pune and she stayed with her parents for about one year. During the said stay of one year, she had informed her parents that accused no.1 was demanding Rs.20,000/- for acquiring a residential accommodation and he expected the said amount to be paid by her father, but his financial position did not permit him to do so. Just one week prior to the date of the incident, PW 2 – Tukaram Gholap, the brother of Sulochana, had taken her to Boisar and he stayed overnight with accused no.1 in the house of accused no.2 and returned to his village. On 4 20/6/1991 between 9.30 a.m. to 11 a.m., when there was no one in the house of accused no.2, Soluchana was found dead with burn injuries. Accused nos.1 and 2, along with the daughter-in-law of accused no.2, had gone to a doctor and when they returned around 12.15 p.m., the house was locked from inside and could not be opened. Accused no.1 peeped through the window and saw some smoke smell coming from inside the house. The door was forcibly opened and when the accused nos.1 and 2 went inside, they noticed that Sulochana was lying dead in the toilet block and her entire body was burnt. Accused no.1, therefore, went to the police station at Boisar and lodged a report, which was registered as accidental death (Exh. 23). The police arrived at the scene, drew the inquest panchanama (Exh. 12) and spot panchanama (Exh.13). The dead body was forwarded for post mortem and P.M. report at Exh. 19 was received on 21/6/1991. On 21/6/2991 Otur Police Station informed PW 1 – Laxman Gangaram Gholap that his sister Soluchana was dead as per the information received from the Boisar Police Station and, therefore, PW 1 reached Boisar and subsequently he was taken to Kelwa Mahim and the dead body of Sulochana was handed over to him. On 22/6/1991, PW 1 lodged the FIR (Exh. 9) at Boisar Police Station and C.R. No. I-68 5 of 1991 came to be registered for the offences punishable under Sections 302, 498-A and 201 each read with Section 34 of IPC against the accused. 3. During the course of investigation, accused nos.1 and 2 were arrested on 22/6/1991 and accused no.3 was arrested on 23/6/1991 and subsequently they were released on bail. On completion of investigation, the charge-sheet came to be filed and the case was committed on 30/8/1991 to the Sessions Court by the learned JMFC. Charge was framed on 31/1/1992. The prosecution examined in all six witnesses. Dr. Dinkar Gavit – PW 3 was the Medical Officer, who had conducted the post mortem and signed P.M. notes at Exh. 19. PW 4 – Jagjitsingh Rudrasingh and PW 5 – Harischandra Valmiki who were the neighbours, turned hostile. PW 6 – Dinkar Bagal was the PSI attached to the Boisar Police Station and was the Investigating Officer. C.A. reports at Exhs.27 and 28 were also placed on record. Defence admitted the inquest panchanama at Exh.12, spot panchanama at Exh.13 and the panchanama for the recovery of clothes and articles from the dead body, Exh.14. Statement under Section 313 of Cr.P.C. of all the accused was recorded and accused nos.1 and 2 claimed that they were 6 falsely implicated, whereas accused no.3, while denying his involvement, stated that at the relevant time he was in his house at village Udapur, Taluka – Junnar, District – Pune. 4. The learned Additional Sessions Judge held that Sulochana died a homicidal death and accused no.1 had subjected her to cruelty and the prosecution failed to prove that all the accused or any one of them had committed the murder of Sulochana on 20/6/1991 between 9.30 to 11 a.m. On the charge of causing cruelty to the deceased, the trial Court held that the evidence on record proved the prosecution case against accused no.1, of causing mental cruelty to the deceased. Though the marriage of the accused no.1 with the deceased was performed on 29/5/1989 and she died a homicidal death on 20/6/1991, during the said period of more than two years the accused no.1 had cohabited with the deceased hardly for one month. Immediately after the marriage the deceased stayed with accused no.1 at Bhoisar for about 25 days and thereafter she was sent by accused no.1 to stay with his parents at village Udapur for about 7-8 months. Thereafter the deceased stayed with her parents for more than one year and was brought back to Bhoisar to join the accused no.1 just six days prior to the date 7 of incident. As per the trial Court all these circumstances went to show that accused no.1 after his marriage with the deceased avoided her company and kept her in the house of his or her parents without any excuse and these circumstances established that the deceased was treated with mental cruelty by accused no.1 and thus the offence under Section 498-A of IPC was proved against him. 5. As per PW 3 – Dr. Dinkar Gavit who had conducted the post mortem on 21/6/1991 at about 12.30 p.m. and signed the PM notes at Exhibit 19, on the dead body of Sulochana the following external injuries were noted: (1) Contusion around mouth anteriorly and anterior aspect of neck size was not made out as the injury was diffused. (2) Abrasion over the dorsal aspect of both legs and toes. (3) Abrasions and contusion over the perineal region. The injury was diffused. (4) Body as a whose was burnt and charred at various sides. 8 He further stated that injury nos.1 to 3 were ante mortem and the burn injuries were post mortem for the following reasons: (a) There were no lines of redness (b) No vesicles. (c) No signs of inflammation. (d) Soot was absent in trachea. The doctor further stated that he had noticed the following internal injuries: 1. Diffused hemorrages in chest muscles and no fracture of bone. Larynx and trachea were congested. Even lungs were congested. In the opinion of the doctor the cause of death was “cardio-respiratory failure due to asphyxia due to suffocation”. He further stated there was a red sarree cotton piece gagged in 9 the mouth of the dead body and the outer portion of the said cotton piece was burnt while the inner part was stained with blood and it was in the mouth when the dead body was brought to the hospital for post mortem. The cloth piece was round like a ball and half portion was inside whereas the remaining half portion was protruding outside. The doctor further clarified that the injuries which were ante mortem were possible by pressing the neck of a person by hand and they were also possible even if the neck was pressed by means of a rope or cloth. The blockage of air was possible by pressing the neck either by hand, rope or piece of cloth. The suffocation was possible by pressing the mouth in such a manner that the person cannot exhale or inhale the air and only a piece of cloth in the mouth will not cause suffocation as the nose is open and if the nose is closed with the piece of cloth in the mouth, suffocation could be caused. In his cross-examination he stated that the entire body was burnt but he could not state as to which parts of the body were charred. He denied the suggestion that the contusion marks will disappear in the case of burnt body and further suggested that such marks could disappear if the body was charred. He also stated that it was not possible to say whether the person was strangulated either by hand, rope or cloth due to 10 diffusion and the process of diffusion would start immediately. He also clarified that major portion of the body was not charred and he could not opine regarding the riger mortis due to charring of the dead body. In the post-mortem report at Exhibit 19 the notings made supported the oral depositions of PW 3. It went to show that the stomach of the deceased was empty and her mouth was gagged with cotton sarree pieces but teeth were in tact. This medical evidence which went unchallenged clearly proved that Sulochanabai was first killed by gagging her mouth and suffocation by strangulation or pressing of her neck and subsequently she was set ablaze to show that she committed suicide. The burn injuries were post mortem and, therefore, it would be necessary to examine as to who caused the homicidal death of Sulochanabai, while she was cohabiting with accused no.1 and in the house of accused no.2. 6. As per the trial Court the prosecution failed to prove its case that either accused no.1 or accused no.2 or both of them, in furtherance of their common intention, committed the murder of Sulochanabai on 20/6/1991 and the reasons set out by the trial Court are as under: 11 “41. It is true that accused no.1 was staying in the house of accused no.2 as a paying guest for a long time. Even though there must be cogent and convincing evidence that they both were having illicit relations the mere suspicion is not sufficient for that purpose as it does not take the place of proof. 42. It is material inference that she was killed because the deceased was not paying the cash or giving the gold ornaments demanded by him. There is a substance that there was a demand from the side of the accused. However, the mere reason is not sufficient to hold that she was killed for the purpose. Similarly, merely a motive without further evidence is of no much use. 43. The other circumstance is that both the accused no.1 and 2 were staying in the same house the deceased was found in the burnt condition. The deceased recently went to their place and therefore, there was no reason for anyone else to cause her death. It is also not the case that she was killed for 12 any other reason by the outsiders. Therefore, it is submitted that the only persons that is the accused no.1 and 2 would be benefited by her death, so they killed her in their house. 44. It is clear from the medical evidence that she was strangulated and the cloth was gagged in her mouth and in order to screen the offence her body was burnt. There is also substance of truth that there was no reason for any outsider to cause her death. However, the said suspicion is not supported by any convincing evidence. It is well-settled that suspicion however, it may be strong does not take the place of proof. 46. It is true that reasonable inference therefore, can be drawn that her death might have been caused by the accused but in order to convict the accused the circumstances must be of such nature which leads to irresistible conclusion of the guilt of the accused. There is a long distance to travel between `may’ and `must’. It is difficult to convict the accused on mere 13 inference and surmises. 48. The death of Sulochana is brutal and the efforts were made to show that it is a suicide however for want of sufficient and cogent evidence, my hands are ties and, therefore, I have no option but to give the benefit of doubt to the accused. The point is, therefore, answered in the negative.” 7. Having regard to the law laid down by the Supreme Court in the case of Tota Singh & anr. Vs. State of Punjab [JT 1987(2) SC 20], Ramesh Babulal Doshi Vs. State of Gujarat [JT 1996(6) SC 79], Hari Ram & ors. Vs. State of Rajasthan [JT 2000 (6) SC 254], and Chandrappa & ors Vs. State of Karnataka [(2007) 4 SCC 415] regarding the powers of the appellate court while dealing with an appeal against the order of acquittal passed by the trial Court, the following general principles emerge: (1) An appellate Court has full power to review, re- appreciate and reconsider the evidence on which the order of acquittal is founded. 14 (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental 15 principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. (6) While reappreciating the evidence the rule of prudence requires that the High Court should give proper weight and consideration to the views of the trial Judge but if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal. Mere fact that the appellate court is inclined on reappreciation of evidence to reach a conclusion which is at variance with the one 16 recorded in the order of acquittal passed by the court below, will not constitute a valid and sufficient ground for setting aside the acquittal. 8. In the instant case the culpability of accused nos.1 and 2 is required to be considered on the backdrop of the fact that he approached the Bhoisar Police Station on the date of the incident and gave the first information in writing on the basis of which ADR No.8 of 1991 came to be registered under Section 174 of Cr.P.C. at about 4.30 p.m. (Exhibit 23). He stated in the said written application that at about 11 a.m. he along with accused no.2 and the daughter-in-law of accused no.2 had gone to Avanti hospital and when all the three returned home at about 12.15 p.m., the house was noted to be locked from inside, there was no response from his wife, he tore off the plastic paper enclosing the window and noticed that the smell of human body burning was emanating from inside the house. He broke open the door and went inside, saw that his wife was lying dead in the toilet block near the kitchen in burnt conditions. He was not aware as to how she sustained the burn injuries and had no suspicion on any other third person causing burn injuries 17 to his wife. Thus Exhibit 23 takes a plea of alibi contending that between 11 a.m. to 12.15 p.m. on 20/6/1991 while the deceased was alone in the house, she sustained burn injuries and was found dead in the toilet block and he had no suspicion against anybody. The medical report on the other hand indicated that the burn injuries were post mortem and in fact Sulochana died due to cardio respiratory failure to due asphyxia caused by suffocation and some injuries were noted around her neck, mouth, legs and toes and these injuries were ante mortem. 9. In the case of Swapan Patra & ors. Vs. State of West Bengal [(1999) 9 SCC 242] the Supreme Court held that in a case of circumstantial evidence when the accused offers an explanation and that explanation is not found to be true, then the same offers an additional link in the chain of circumstances. Similarly in the case of State of Maharashtra Vs. Suresh [JT 1999 (9) SC 513], the Supreme Court reiterated the same principle and held that a false answer offered by the accused when his attention was drawn to a circumstance, render that circumstance capable of inculpating him and in such a situation false answer can also be counted as providing a missing link for completing the chain. In the case of Anthony D’Souza and ors. 18 Vs. State of Karnataka [JT 2002 (9) SC 257] a three-Judge Bench of the Supreme Court held that in a case of circumstantial evidence where an accused offers false answer in his examination under Section 313 of Cr.P.C. against the established facts, that can be counted as providing a missing link for completing the chain. In the case of State of Rajasthan v. Kashi Ram [AIR 2007 SC 144], the Supreme Court stated as under, “... The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails 19 to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon the facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain.” 10. The prosecution had relied upon the evidence of PW 4 – Jagjitsingh and PW 5 – Harishchandra Valmiki who were the neighbours and both of them turned hostile. PW 6 – Dinkar Bagal was the IO and he stated before the trail Court that on 20/6/1991 the accused no.1 gave information to the police station regarding the death of his wife and it was recorded at Exhibit 23 by Shri Pardeshi, PSI and thereafter he recorded the complaint of PW 1 – Laxman Gangaram Gholap (Exhibit 9) on 22/6/1991 and based on the same C.R.No.I-68/91 came to be 20 registered for the offences punishable under Section 302 and Section 498-A read with Section 34 of IPC. As per the CA report at Exhibit 27 the partly burnt cloth pieces of the deceased had tested positive for kerosene residues and they were stained with blood group “A”. The inquest panchanama at Exhibit 12 showed that it was drawn between 2.45 to 3.45 p.m. on 20/6/1991 in the house of accused no.2. The dead body was found in the toilet block located on the western side of the kitchen in the house of accused no.2. The deceased was in her menses and had discharged stool. The blood stains were noticed on the walls as well as the floor area and the mouth of the deceased was gagged by cotton pieces (round bundle like a ball). The spot panchanama at Exhibit 13 indicated that the toilet block was of 6 ft x 4 ft. 9 inches (outer side) and 3 ft. 6 inches x 4 ft. from inside. The house of accused no.2 has four rooms and it has a rear door as well. Obviously the accused no.1 and the deceased were occupying one of these four rooms. The water pipe was also lying on the floor and it had black spots. The roof of the toilet block had black smoke marks and it did not appear that it had any window. The window near the main door was closed by a plastic paper as has been stated by accused no.1 in his written information at Exhibit 23. 21 The combined reading of Exhibits 12, 13 and 23 went to show that there was an additional door from the rear side of the house, there was no scope for the smoke or smell to be seen or felt outside the house and the burn injuries did not appear to be deep and fresh. Though the percentage of burn injuries