1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 1130 OF 2002 Shirpujan Lotan Gupta ..Appellant Vs. The State of Maharashtra ..Respondent Mr. A.G. Toraskar, Appointed Advocate for appellant. Mr. V.B. Konde-Deshmukh, APP for State. CORAM: B.H.MARLAPALLE & SMT. ROSHAN DALVI, JJ. July 22, 2009. ORAL JUDGMENT (PER B.H.MARLAPALLE, J.) 1. This appeal filed under Section 374 of Cr.P.C. arises from the order of conviction and sentence passed by the learned Ist Adhoc Additional Sessions Judge at Palghar, Thane on 6/7/2002 in Sessions Case No. 7 of 2001. The appellant has been convicted for the offence punishable under Section 302 of IPC and sentenced to suffer RI for life and to pay a fine of Rs.1000/-, in default of fine, he is directed to undergo RI for six months more. During trial also the accused was in jail from 14/11/2000 and he continues to be in jail as of now. 2. As per the prosecution case, Chidubai, the dauther of the deceased – 2 Sakhubai Madhukar Gund was living with the appellant as his wife. She was earlier married to Ramu Raghuram and from the said first marriage she has two children i.e. Son Pundalik, aged about 21 years now and daughter Sangita, aged about 19 years now. She had separated from her husband and started staying with the appellant as his wife and from the said relationship they begot two children, son Sharad (16 years of age now) and another son Nitin (16 years of age now). She used to sell Neem leaves along with her mother at Dadar for her livelihood and the appellant also was working as a labour as and when such work was available. Appellant was habituated to liquor and as per the complainant he used to demand from her money for drinking liquor from time to time. If she refused at any time to give him the money, he would fight with her and at times assault her as well. It is claimed that on 10/11/2000 the appellant went to the house of his mother-in-law which was at a distance of about 150 ft. away from his house and asked for money to drink liquor, at about 8 p.m. And his request was turned down. He, therefore, came back to his house and demanded money from the complainant – Chidubai. She refused and, therefore, there was a quarrel between the two of them. He started assaulting her and, therefore, she ran away towards her mother’s house. The appellant chased her upto the house of Sakhubai and Sakhubai shouted at him. She scolded him stating that he should feel ashamed of demanding money from his wife for drinking liquor and he ought to have some sense of time to make such a demand. Obviously, it was mid-night when the complainant reached her mother’s house and was chased by the accused. The accused got enraged on this insult/shouts of his mother-in-law and he started assaulting her with fists blows and kicks. After some time, in the same course of assault, he snatched her saree and strangulated her. She fell down and the accused ran away. Some neighbours had 3 gathered at this point of time but none of them could gather courage to intervene as they were scared of the appellant. The complainant, therefore, took shelter in the neighbour’s house and on the next day, in the early hours, she went to the Shaphala Police Station to lodge a complaint. Around 10 a.m. the police arrived at the scene, saw that Sakhubai was dead and inquest panchanama was drawn (Exh. 14) in the presence of witnesses, by the I.O. Shri Madhukar Kumbhar (PW 9). Spot panchanama was also drawn at Exh. 15 in the presence of the wintesses and the dead body was handed over for post mortem, which was carried out by Dr. Ravi Ingale (PW 8) along with Dr. V.G. Sukhadeve between 3.45 to 4.45 p.m. on 11/11/2000. He signed the post mortem report at Exh. 28 and the cause of death, as stated in Column No.22, was due to shock due to haemorrahage due to chest injury causing injury to lung (vital organ). The I.O. recorded the statements of the neighbours who claimed to have seen the incident. The clothes of the deceased were seized and on 11/11/2000 the accused was taken in custody under arrest panchanama at Exh.16 and his clothes also were seized. The clothes of the deceased as well as the accused were sent for chemical analysis under letter dated 5/12/2000 at Exh. 37. The C.A. report dated 5/5/2001 was received at Exh. 38 and the blood group of the deceased was found to be of group “B” and all her clothes as well as the quilt and the half pant were found to be stained with blood group “B”. The half pant was worn by the accused, but his blood group was not detected. Charge-sheet was submitted on 29/12/2000 and as the case was triable exclusively by the Sessions Court, it was committed as per the order dated 16/1/2001. The Sessions Court framed the charge on 3/1/2002. 3. The accused pleaded not guilty and the prosecution examined in all nine 4 witnesses, including PW 1 – Chidubai Shirpujan Gupta, the complainant, PW 2 – Bhaurao Udarya Sumada was examined in support of the seizure panchanama at Exh. 12, PW 3 – Vishnu Babu Dodhade, PW 4 – Thamubai Ziparaya Bhoir, PW 5 – Tulashibai Kanha Dumada, PW 6 – Sukaribai Sukarya Hadal, PW 7 – Mohan Kamalya Salkar were claimed to be the eye witnesses. PW 8 – Dr. Ravi Ingale was the Medical Officer who performed post mortem and signed the report at Exh. 28 and PW 9 – Madhukar Bhuta Kumbhar, A.P.I. Police Station Saphale was the Investigating Officer who had recorded the complaint and registered the same as an FIR (Exh. 10) at about 9.45 a.m. on 11/11/2000. 4. The accused and the deceased were at the relevant time residing at a small hamlet called Kiraipada and very close to village Jalsar. Village Jalsar has a village panchayat and Kiraipada was part of it. The hamlet had only 12 families as its residents. The son ( Dasharath) of the deceased was also staying in the very same hamlet. 5. PW 8 – Dr. Ingale in his depositions referred to the post mortem report at Exh. 28 and stated that on the body of the deceased, the following surface wounds/ injuries were noticed:- 1. Contusion over forehead above left eye. 2. Contusion over left cheek. 3. Contusion over right ear. 4. Multiple abrasion over both side of neck about ½ to ¾ cm. 5 5. Contusion over and above nipple at left side of chest. He also noticed the following internal as well as palpable injuries: 1. Fracture to left rib of chest 3rd to 5th. 2. On the head – contusion over occipital region with heamatoma under it. 3. Frature to rib on left side of chest 3rd, 4th and 5th. 4. Left lung is collaps, pale, penetrating wound to middly corresponds to 3rd, 4th and 5th rib due to broken ribs, bleeding inside (haemorrhage due to penetrating would to left lung). The doctor stated that in his opinion the probable cause of death was due to shock due to haemorrhage due to chest injury, causing injury to lung (vital organ). He stated that the injury in Column No. 19 of the post mortem could be caused by assault given by fist blows and kicks, whereas injury mentioned in Column No. 17 at Sr.No. 4 i.e. Multiple abrasion over both side of neck could be caused due to pressing of neck with the help of saree. The injury mentioned in Column No. 18 i.e. fracture to left rib could be caused due to fist blow or kicks or even by pressing. In his cross-examination, he admitted that there is a possibility of causing fracture to the ribs in case person falls on the the floor. He denied that an old woman could cause fracture of her ribs due to fall on the ground without there being any force. He also did not agree with the suggestion that due to lung infection or haemorrhage later on the death could cause. He denied the suggestion that an old lady falling from the tree could sustain multiple abrasion over both 6 sides of her neck. He also admitted that such abrasion marks could be seen for 7 days also, but could keep changing its colour, whereas the contusion marks could appear for 3-4 days was not a correct suggestion. He also admitted that if a person under the influence of liquor falls on the floor he may sustain contusion. He further disagreed with the suggestion that in case of throttling / strangulation the tongue may be swollen, bruised, bitten by teeth and protruded, bleeding from the ears, eye & nose. He volunteered to say that tongue may or may not come out of the mouth and there is a possibility of bleeding only from the mouth and nose. In the case of the deceased he had noticed slight oozing of blood from her mouth. In the case of strangulation there may or may not be any struggle mark in each and every case and in case of total throttling, resulting into death, there is possibility of face becoming cyanosed and not otherwise. As per him, injury Nos. 1, 2, 3 and 5 mentioned in Column No. 17 could not be caused to a person in case of a single fall on the ground and the possibility of causing such injuries could be only due to multiple falls on the floor with force. This medical evidence proves that Sakhubai died a homicidal death due to fractured ribs and injury to her lung. She was also strangulated and as a result blood was seen oozing from her mouth. 6. By reading the evidence of PW 8 along with the post mortem notes at Exh. 28, it was submitted by Mr. Toraskar, the learned counsel for the appellant, that the deceased had fallen on account of her fall from the Neem Tree and the accused was framed. In the alternative he submitted that in any case there was no intention on the part of the accused to cause the death of his mother-in-law and it was submitted that during the scuffle in the house, the old lady fell down and sustained fracture of her ribs and as a result thereof she died. Mr. Toraskar, therefore, submitted that even if the accused is 7 found guilty, he could be convicted at the most under Section 304 Part II of IPC. It was further submitted that he has been behind the bars for the last more than nine years and that by itself would be more than the required period of sentence and, therefore, the appellant could be released forthwith. 7. We have noted from the record that in his statement recorded under Section 313 of Cr.P.C., the accused had taken a plea of alibi. In reply to Question No. 41, he stated, “On the day of incident in the evening, I had gone on the work of taking out soil on boat. On the next day when I came in village, villagers handed over me in the custody of police. On earlier night the first husband of Chidubai came in the house. I do not know what talk was taken place in between him and Chidubai. Prior to 5 days of incident first husband of Chidubai gave a threat of murder to Sakhubai. Rest I do not know anything.” 8. Out of the six eye witnesses cited by the prosecution, four of them i.e. PW 4, PW 5, PW 6 and PW 7 were declared hostile by the learned APP before the trial court. It is well settled that the evidence of hostile witnesses need not be discarded in toto. But, at the same time, the evidence of PW 3 – Mohan has suffered from improvisations and contradictions as compared to his statement made to the police at the first instance. We, therefore, proceed to examine the evidence of PW 1, PW 2, PW 4 to PW 7 and PW 9 – Investigating Officer. 8 As per PW 1 – Complainant, the accused was in the habit of drinking liquor almost every day and on the date of the incident, she had returned along with her mother after selling the Neem leaves at Dadar. Around 8 p.m. the accused had gone to her mother’s house and demanded money for drinking liquor and her mother did not oblige him. He, therefore, came to her and demanded the money for drinking liquor. When she refused to give him any money, he started abusing and assaulting her and when it became unbearable, she left the house and started running towards the house of her mother. This was around the mid-night and the accused was chasing her. The mother was woken up when the complainant reached her house and she scolded the accused. She questioned him as to why he was assaulting her daughter and he had lost his balance when assaulting her daughter in the mid-night. He got angry and started assaulting her mother. He gave blows on the abdomen of her mother, pulled her saree corner and wrapped around her neck. He strangulated her and when she tried to intervene, he gave the complainant one assault. Her mother died and she informed the incident to the neighbours. Due to the fear of the accused, she stayed in the house of the neighbour in the night and on the next day morning, she went to the police station at Saphale by walk. She lodged report at Exh. 10 which has been confirmed by PW 9. PW 7 – Mohan stated in his cross-examination that the complainant had approached him in the night on 10/11/2000 and she had informed him that Bhaiyya (accused) had murdered her mother. This time of 9.30 p.m. stated by PW 7 was pointed out by Mr. Toraskar in support of his submissions that the witnesses were not reliable and they had contradicted each other, more particularly about the time of the incident i.e. whether it had taken place around 12 in the night or at about 9.30 p.m. It is clear from the evidence of PW 7 that he was not one of the eye witnesses and he 9 admitted that though he heard the shouts, he did not move out of his house to see what was happening in the house of the Sakhubai. At the same time PW 9, in his depositions stated that the PW 3 did not make such a statement about the time. He stated that on the next day, he woke up at 7.30 a.m. and around 10 a.m. the police had come to the Basti. PW 2 has proved panchanama of seizure of clothes at Exh. 12. PW 4 – Thamubai Bhoir stated that she was residing in the neighbourhood of Sakhubai and the house of the complainant also was nearby. For some time the complainant was staying with her mother and thereafter she shifted to another house along with the accused. The incident had taken place at about 8 p.m. while she was in the house and had heard a commotion near the house of Sakhubai. She had heard the shouts of Bhaiyya (accused) at the house of Sakhubai, but she did not bother to go out. In her cross-examination by the APP she admitted that between 00.00 hours to 00.30 a.m. she heard the shouts of quarrel near the house of Sakhubai and she had gone out of her house. She saw the complainant running towards the house of Sakhubai and the accused was following her. She also admitted that Sakhubai had questioned the accused as to why he was always beating her daughter and whether he was not ashamed in demanding money for liquor. She also admitted that the accused got angry on the words uttered by Sakhubai and started giving her fists blows and kicks. Thereafter, he pressed her neck and strangulated her by saree. Sakhubai died at the spot. She also admitted that the neighbours had gathered, but due to fear of the accused, none of them intervened. She also admitted that on account of the complaint lodged by Chidubai, the police came to the Basti and recorded her statement. In her cross-examination by the defence, nothing much was brought out to disbelieve her testimony, except saying that even PW 3 – Vishnu had assaulted the accused on 2-3 times on account of the dispute of land. She further admitted in her cross-examination that the 10 residence of Sakhubai was at some distance from her house and there were number of trees in between and it was not possible to hear the sound coming from Sakhubai’s house. She further stated that she had gone for work on the day of the incident but had returned by about 6 p.m. and had gone to bed. This testimony does not affect the prosecution case as she had in her cross-examination by the APP admitted that she was woken up by the shouts of the complainant in the mid-night. 9. PW 5 – Tulashibai Dumada stated that the complainant was residing near her house and the accused was her husband. The deceased Sakhubai was also residing in her neighbourhood and both the mother and daughter were selling Neem leaves at Mumbai. In her cross-examination by the APP, she admitted that the accused was always demanding money from the complainant for drinking liquor and whenever she refused to pay, he used to abuse and beat her. On the date of the incident it was a Friday and at about 8 p.m. there was a quarrel between the accused and complainant on account of demand of money for liquor but it was a routine affair and, therefore, she neglected the same. She further admitted that in the mid-night, she woke up by hearing the abuses of the accused and came out of her house and at that time she saw the complainant running to the house of her mother and the accused was following her. Sakhubai asked him as to why he was troubling her daughter all the time. The accused out of anger started giving fists blows and kicks to Sakhubai and he started pressing her neck. He also strangulated Sakhubai with her saree and Sakhubai collapsed at the door of hear room and the accused was also giving her fists blows and kicks. Because of this assault, Sakhubai died at the spot. She also admitted that her neighbours Thamubai, Sakharibai were also present when the incident had taken place. She further admitted that though she had seen the incident, 11 due to the fear of the accused, none of them intervened. In her cross-examination by the defence, she admitted that she did not know that how the incident had taken place and that the accused was called as Bhaiyya (a person from U.P.), whereas the complainant was by a caste an Adviasi. She also admitted that as the marriage was performed with Bhaiyya, the people in the locality used to ask him to go away. PW 6 – Sukaribai Hadal was again declared hostile by the APP and when he started cross examining her, she reiterated the incident almost on the same line, as was done by PW 5. She also admitted that Tulashibai and Thamubai were also present along with her at the spot. In her cross-examination, she admitted that she did not know how Sakhubai died and the police had not made inquiry with her. This piece of short cross- examination did not in any way cast doubt on her substantive evidence about the incident and she being an eye witness to the same in the mid-night of 10/11/2000. PW 9 – PSI Kumbhar was the IO. He stated that the complainant reached the police station at about 9.45 a.m. on 11/11/2000 and she lodged the complaint which was recorded by him and registered as FIR at Exh. 10. He had taken the thumb impression of the complainant on the same and he had also signed. On the basis of the said complaint, C.R. No. 29 of 2000 was registered and he took over the charge of investigation. He visited the spot along with the complainant at Kiraipada hamlet. In the presence of the witnesses, inquest panchanama was drawn (Exh. 14). He stated that it was drawn by him and the contents therein were true and correct. He subsequently sent the dead body for post mortem with the police constable under written intimation Exh. 33. Thereafter he drew spot panchanama at Exh. 15 in the presence of the witnesses. He seized the sample of soil mixed with blood, quilt, chatai, blouse, saree of the deceased. He had also drawn sketch 12 of the spot of incident at Exh. 34. He also made inquiries with neighbours and recorded their statements and they were Sukaribai and Mohan Salkar. He also stated that the seized clothes of the deceased as well as the accused were sent for chemical analysis on 5/12/2000 and he received the C.A. report. In his investigation, it was revealed that accused had given assault on the chest of the deceased and strangulated her with the help of a saree and thus committed her murder. In his cross-examination, he admitted that the distance between Kiraipada and the police station was about 6-7 kmts. and he had reached the same place by police jeep within about 10 minutes. This witness was subjected to a searching cross-examination and he denied that the deceased was suffering from illness prior to her death and he had deliberately suppressed the said fact in his report at Exh. 33. He also denied the suggestion that he had not seized the quilt, chatai from the spot. He reiterated that he had collected sample of soil mixed with blood from the spot. He also denied the suggestion that he had prepared the spot panchanama in the police station itself and that he had obtained the signature of panch Vishnu on the said panchanama at the police station at about 5 p.m. He denied the suggestion that on 11/11/2000 the dead body of Sakhubai was not given in the custody of police constable Dhotre, to be carried for post mortem. In the cross-examination he further stated that Vishnu’s statement was recorded as per the statements made by him and he further reiterated that all the statements recorded by him were as per the statements made by the respective witnesses from the neighbourhood. He admitted that Mohan did not state before him that on the day of the incident at about 9.30 p.m. the complainant came to his house and informed him that Bhaiyya committed the murder of her mother and thus the said depositions of Mohan before the trial court was an improvement over his statement recorded by the police. 13 10. The incident witnessed by the complainant and her neighbours i.e. PWs 4, 5 and 6, wherein the accused assaulted the mother of the complainant has been duly proved by the prosecution. The medical evidence clearly showed that Sakhubai died because of fracture of ribs and injury to her lung. The evidence of these eye witnesses read with the medical evidence and the evidence of the I.O. has proved the complicity of the accused in causing the murder of Sakhubai and it is proved by the prosecution beyond any reasonable doubt and, therefore, the Sessions Court was right in convicting the accused under Section 302 of IPC. The reasoning set out in support of the order of conviction is just and proper and is based on cogent and reliable evidence of four eye witnesses. There is no merit in the contentions raised on behalf of the accused that the deceased died due to