1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 579 OF 2003 Laxman Mansukha Khavadiya ] R/o. C/o. Shri Veljibhai Khavadiya ] Jain Chawl, Jagadamba Niwas, ] Carter Road No. 3, Borivali (East), ] Mumbai 400 066 (at present in custody at ]..Appellant Kolhapur District Prison ](Original Accused ) versus State of Maharashtra ] (Inspector of Police, Kasturba Marg Police ] Station, Borivali (East), Mumbai) ]..Respondents Mr. S. V. Marwadi for Appellant / Original Accused. Mrs. M. H. Mhatre, A.P.P. for the Respondents – State. CORAM : D. D. SINHA AND A. R. JOSHI, JJ. Judgment Reserved on : 25.08.2010 Judgment Pronounced on : 31.08.2010 JUDGMENT : (Per : D. D. Sinha, J.) Heard the counsel for the appellant and the Additional Public Prosecutor for the Respondents – State. 2. The criminal appeal is directed against the judgment and order dated 2 7th April 2003 passed by the Additional Sessions Judge for Greater Bombay, whereby the appellant came to be convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to suffer R.I. for life and fine of Rs.1,000/- in default R.I. for one month. The appellant is also convicted for an offence punishable under section 498-A of the Indian Penal Code and sentenced to suffer R.I. for three years and fine of Rs. 3,000/- in default R.I. for two months (both the sentences were directed to run concurrently). 3. The case of the prosecution in nutshell is as follows:- The deceased Shobha was the wife of the appellant. It is the case of the prosecution that the appellant treated Shobha well for some time after their marriage, however thereafter subjected her to ill-treatment. The appellant used to beat her of and on, on flimsy reasons under the influence of liquor. On the day of the incident appellant assaulted Shobha severally. Shobha sustained injuries due to assault and succumb to those injuries. Appellant informed the father of the deceased P.W. 1 Ramu Govind that his wife was lying motionless in his own house and was unable to speak. P.W. 1 Ramu informed the police. Shobha was examined by the doctor who declared her dead. Offence was registered against the appellant on the basis of the complaint lodged by Ramu - father of the deceased. Spot panchnama was recorded. Dead body was sent for postmortem examination, statement 3 of witnesses were recorded and after completing the investigation charge sheet came to be filed. Charge under section 498-A and 302 of the Indian Penal Code was framed against the appellant. Same has been explained and read over to him. Appellant pleaded not guilty to the charge and claimed to be tried. Defence of the appellant is of total denial. The trial court considering the evidence on record, convicted the appellant for the offences charged, being aggrieved by the judgment and order passed by the trial court appellant filed the present criminal appeal. 4. The learned counsel for the appellant has submitted that the prosecution case is based on circumstantial evidence and therefore the circumstantial evidence must be clinching enough to complete the chain of circumstances which must be capable of ruling out any hypothesis of innocence and must establish the guilt of the appellant. It is contended that in the instant case the witnesses examined by the prosecution are either related or known to the deceased and therefore they had an interest in the prosecution. It is contended that P.W. 1 Ramu is the father of deceased Shobha and P.W. 2 Radha is the sister of Ramu. Similarly, P.W. 3 Harishchandra and P.W. 4 Gabhabhai were also known to the deceased Shobha. It is submitted that since these witnesses were the interested witnesses, their testimony is required to be scrutinized with care and caution. The learned counsel for the appellant has submitted that the 4 evidence of P.W. 1 Ramu, P.W. 2 Radha is self contradictory and therefore instead of corroborating the case of the prosecution, their testimonies being inconsistent with each other affect the material particulars of the case of the prosecution and creates doubt about the genuineness of the case of the prosecution. It is contended that the evidence adduced by the prosecution in order to prove the charge under section 498-A of the Indian Penal Code is concerned, though not in dispute, however, that evidence by itself is wholly inadequate to bring home the guilt of the appellant for the offence punishable under section 302 of the Indian Penal Code. 5. It is further contended that testimony of all these four witnesses basically refers to the ill-treatment alleged to have been given by the appellant to his wife Shobha. However there is no specific evidence available on record which would establish that the appellant was the author of the injuries sustained by Shobha. It is further contended that medical evidence being a corroborative piece of evidence, can only demonstrate the age of the injury, cause of death and whether the injuries sustained, in ordinary course of nature can cause death and nothing more. The learned counsel for the appellant has submitted that evidence adduced by the above referred prosecution witnesses is wholly inadequate to bring home the guilt of the appellant for the offences charged. 5 6. It is contended that the defence taken by the appellant is a probable defence. Deceased Shobha was suffering from Epilepsy, her behaviour was abnormal and the injuries sustained by her were caused due to dash given by the rickshaw. It is further submitted that since the deceased was suffering from Epilepsy, the possibility of deceased falling down on the ground in an Epilepsy attack cannot be ruled out. The learned counsel for the appellant further contended that evidence of P.W. 5 Ravikant (P.I.) shows that statement of complainant was recorded on 28th June 2000 by PSI Patil in which the complainant has not expressed any suspicion about anybody. The prosecution did not place the said statement on record and suppressed the material evidence from the court and therefore the prosecution in the present case has not been straightforward. The learned counsel for the appellant further contended that in the evidence of P.W. 3 there are contradictions which are of material nature and affect the material particulars of the prosecution case. 7. The learned counsel for the appellant further contended that the evidence of defence witness D.W. 1 Paresh Mansukh Khavadiya supports the defence taken by the appellant that the injuries sustained by Shobha were caused in the accident caused due to dash given by rickshaw. The learned counsel for the appellant therefore contended that the evidence on record is inadequate to bring home the guilt of the appellant for the offences 6 charged and therefore the conviction recorded by the trial court is unsustainable in law. 8. The learned Additional Public Prosecutor supported the impugned judgment and submitted that the testimonies of P.W. 1 to P.W. 4 coupled with the medical evidence proves the charge framed against the appellant beyond all reasonable doubts. It is contended that the deceased was the wife of the appellant and there is a consistent evidence available on record about the ill-treatment given by the appellant to his wife one year after their marriage till her death. The Additional Public Prosecutor submitted that the post-mortem examination on the dead body of Shobha was conducted by Dr. Pawar on 28th June 2000 and as per the doctor the injuries were caused within 24 hours prior to the post-mortem examination, by hard and blunt object. It is submitted that the appellant has not disputed that on the day of the incident appellant, his wife Shobha and daughter were present in their house and appellant prepared the food on that day, however, Shobha did not take any food. After that all went to sleep. At about 2.30 a.m. brother of the appellant woke up the appellant and told him that his daughter was crying. When the appellant woke up he saw his wife Shobha restless due to pains and her hand was on her daughter. Appellant also has admitted that he then went to call Shobha’s father and informed him about the condition of Shobha, however father did not come to see her condition. The Additional 7 Public Prosecutor therefore contended that the presence of the appellant along with his deceased wife Shobha at the relevant time has not been disputed. The evidence on record further shows that when P.W. 2 Radha went to the house of deceased after she was informed by the appellant, she saw the deceased motionless and after the doctor examined Shobha, declared her dead. It is contended that the evidence on record is therefore clinching and proves the case against the appellant beyond all reasonable doubts. 9. We have considered the contentions canvassed by the learned counsel for the appellant as well as the Additional Public Prosecutor. It is necessary to scrutinise the evidence of the prosecution in order to find out whether the same is adequate enough to prove the charge framed against the appellant beyond all reasonable doubts. 10. The prosecution, to bring home the guilt of the appellant has examined in all seven witnesses. P.W. 1 Ramu Govind Orava (complainant and father of the deceased). P.W. 2 Radha Premji Vaghela (witness at the relevant time was residing in the same locality where appellant and the deceased Shobha were residing at the time of incident). P.W. 3 Harishchandra Gowalkar neighbour of appellant. P.W. 4 Gabhabhai Chanchal Dantani (witness at the relevant time was residing in the same 8 locality). P.W. 5 Ravikant Vishnupant Buva – Police Inspector attached to Kasturba Marg Police Station at the relevant time. P. W. 6 Dr. Murlidhar Chimaji Pawar, who has conducted post-mortem examination on the dead body of the deceased Shobha. P.W. 7 Pandurang Kurshna Patil – PSI who was attached to Kasturba Marg Police Station and conducted part of the investigation. The appellant has examined one defence witness D.W. 1 Paresh Mansukh Khavadiya (brother of the appellant). 11. The prosecution case is based on circumstantial evidence and therefore the circumstances brought on record by the prosecution in the form of admissible evidence whether adequate enough to prove the charge framed against the appellant beyond all reasonable doubt, it is necessary to consider the evidence of the witnesses. 12. P.W. 1 Ramu (complainant) is the father of the deceased Shobha. This witness in his examination-in-chief has stated that his daughter Shobha was married with the appellant about four years prior to the incident in question. The couple has two children, one son and one daughter. One year after the marriage the appellant started ill-treating Shobha and subjected her to cruelty. The appellant under the influence of liquor used to assault Shobha. P. W. 1 Ramu has further stated in his examination-in-chief that whenever his daughter Shobha visited him, she informed him that the appellant was 9 ill-treating her and was also used to beat her. This witness has further deposed that he tried to convince the appellant that he should not assault his daughter, however the appellant continued ill-treating to his daughter. Neighbours also tried to persuade appellant not to ill-treat Shobha and not to assault her. However appellant continued ill-treatment. 13. P.W. 1 Ramu further stated in his examination-in-chief that he lodged a complaint in the police station against the appellant for assaulting his daughter. The appellant was taken by the police in the police station on the basis of the complaint lodged by the complainant. However. The appellant did not change his behaviour and continued to ill-treat her by giving her beating of and on. P.W. 1 further deposed that in the year 2000 (the witness does not remember the date and time) he was sleeping in his house and at about 3 a.m. appellant came to his house, he was under the influence of liquor and started abusing this witness. The sister of this witness, Radha – P.W. 2 and his wife Neela went to the house of the appellant and saw his daughter Shobha lying dead. Radha – P.W. 2 came back and informed this witness about the death of his daughter. This witness went to the house of the appellant and saw his daughter was lying dead. P.W. 1 informed Police that appellant killed his daughter and lodged the complaint, Exhibit ‘8’. 14. The examination of P.W. 1 Ramu shows that defence has not seriously 10 challenged the prosecution case unfolded by this witness in his examination- in-chief in respect of the fact that the appellant informed him about the death of his daughter Shobha, sister of the appellant, Radha and his wife Neela went to the house of the appellant. However this witness has admitted in the cross examination that they did not take Shobha to the hospital since Shobha was dead. The perusal of the entire cross-examination of this witness would show that there are no material contradictions and omissions. In the cross-examination this witness has admitted that his daughter Shobha was suffering from Epilepsy. This witness has specifically denied the suggestion that Shobha was lunatic. In the cross- examination few suggestions are also given to this witness in order to show that Shobha was not taking care of her hygiene. The evidence of this witness, so far as the material particulars of the prosecution case disclosed by him in his substantive evidence, is not shaken in the cross-examination and the testimony of this witness is also free from material omissions and contradictions. 15. Radha - P.W. 2 at the relevant time was staying in the same locality where the appellant and the deceased Shobha resided. The testimony of this witness is more or less similar to one given by the P.W. 1 Ramu so far as the ill-treatment by the appellant to Shobha is concerned. This witness has stated in her examination-in-chief that one year after the marriage 11 appellant started ill-treating Shobha. Appellant used to beat and assault Shobha of and on and the fact of beating and ill-treatment by the appellant was told to this witness by Shobha herself. P.W. 2 Radha has also stated that on the day of incident at about 3.30 a.m. appellant came to her house and told that Shobha is sick and she is not speaking. This witness and Neela, mother of Shobha went to the house of the appellant and saw Shobha lying motionless. It has come in her testimony that at about 10.30 a.m. appellant came to her house and told that Shobha had died. This witness and mother of Shobha went to the house of the appellant and saw Shobha lying at the same place and in the same condition when they saw her earlier. Police called doctor who examined Shobha and told this witness that she was dead. In the cross-examination of Radha she has stated that appellant was addicted to liquor and used to demand money from deceased Shobha and when Shobha refused to give money to the appellant there used to be quarrels between them. This witness has admitted in her cross-examination that when she went to the house of Shobha her body was cold and it was difficult to know whether she was alive or dead. This witness told the appellant to take Shobha to the hospital, however he did not take Shobha to the hospital. This witness has denied that Shobha was suffering from Epilepsy. This witness has admitted in her cross-examination that Shobha once urinated inside the house of the appellant. In the cross-examination this witness has stated that appellant was not giving Shobha food and used to assault her 12 therefore all this has happened. The defence has given her suggestion that 10 days prior to the incident one rickshaw had given dash to Shobha which was denied by this witness. Other suggestions given to this witness about the strange behaviour of Shobha were also denied by this witness. The overall testimony of this witness would show that it has corroborated the prosecution case unfolded by the complainant regarding ill-treatment given to Shobha by the appellant and on the day of the incident Shobha was in the company of the appellant. The testimony of this witness also proves the fact that on the day of the incident the appellant was present in his own house and his wife deceased Shobha was with him. The dead body of deceased Shobha was lying in the house of the appellant. This part of the testimony of this witness has not been shaken in the cross-examination. 16. P.W. 3 Harishchandra also gave the same version in his examination- in-chief about the ill-treatment by the appellant to Shobha as given by P.W. 1 Ramu and P.W. 2 Radha and there are no omissions and contradictions in the testimony of this witness brought on record by the defence. It has come in the cross-examination of this witness that at the relevant time he was residing in the same locality where the appellant and deceased Shobha were staying. This witness claims that he is a social worker and residents of the locality used to come to him for advise on many matters. He denied the suggestion that Shobha was suffering from Epilepsy. 13 17. P.W. 4 Gabhabhai in his examination-in-chief has also given similar story about the ill-treatment given by the appellant to Shobha under the influence of liquor as given by the other witnesses. This witness has stated in his examination-in-chief that on 27th June 2000 this witness was passing by the side of the house of the appellant which was though closed, he has heard the appellant and his wife were shouting. In the cross-examination this witness has admitted that he heard the shouts in the afternoon, and denied the suggestion that when he heard the shouts it was a night time. It is no doubt true that he has denied the statement made to the police marked as ‘A’ and ‘B’ and could not give reasons why the police has recorded the same. However, this variance in his testimony is not adequate enough to discredit his ocular testimony which is otherwise consistent with the prosecution case. 18. P.W. 6 Dr. Pawar has conducted post-mortem examination on the dead body of deceased Shobha and noticed following external and internal injuries on the person of deceased Shobha: External Injuries: (1)Contusion abrasion 2 cm x 1 ½ cm mussal deep, lateral to right eye boll 1/5 c.m; (2)Nail marks on left cheeks at mandible no. 9; 14 (3)Contusion 5 c.m x 1 c.m areas right anterior shoulder 2 c.m away, mussle deep; (4)Contusion (V O) medial to lateral 2 c.m. Below joint 7 c.m x 6 c.m. Spoted at elbow; (5)Contusion lateral of medial, left arm 4 c.m x 3 c.m musle deep; (6)Multiple contusion left elbow to pale anterior, posterior, lateral aspect with oedematus palm; (7)Contusion posterior left palm 4 c.m x 3 c.m.; Internal Injuries : (1)Contusion above right proaful region above 1 c.m. Eye brow 2 c.m. Right to midline size 3 c.m x 2 c.m. (2)Diffused contusion on left temporal region of size 8 c.m x 6 c.m. (3)Injuries on brain :- right frontal lobe big tumour 8 c.m. Cercular oncut solid, uniform. The doctor has opined that all the injuries sustained by the deceased were ante-mortem and were caused within 24 hours prior to the post-mortem examination, by hard and blunt object. Doctor has further opined that death was caused due to multiple contusion over body and nail marks over left cheek. Injuries were sufficient to cause death in the ordinary course of nature. 15 19. The defence wanted to make a capital of the fact that in the certificate Exhibit ‘30’ doctor has not mentioned whether the death was natural or unnatural. However the doctor in the cross-examination has stated that on the basis of external and internal injuries noticed on the deceased at the time of post-mortem, death was unnatural. It has also come in the cross- examination that a fracture of bone depends upon the force used at the time of assault. Doctor has denied suggestion that the injuries were possible if the vehicle gives dash to a person from the right side. 20. The evidence of P.W. 1 to P.W. 4 clearly establishes that, after one year of marriage appellant started ill-treating Shobha. It is also established that appellant used to assault Shobha of and on and subjected Shobha to ill- treatment. The evidence on record clearly shows that inspite of the efforts taken by P.W. 1 Ramu as well as P.W. 3 Harishchandra to convince appellant not to assault the wife gone in vain and the appellant continued to beat and assault his wife under the influence of liquor till the end. In the instant case, it is not in dispute that at the time of incident, deceased was in the company of appellant. In other words, the appellant, deceased Shobha and their daughter all were present in their house, went to sleep and when appellant woke him up he saw his wife Shobha lying motionless. It is pertinent to note that when deceased Shobha was in the custody of her husband it was 16 the duty of the husband to explain how Shobha received multiple injuries on her person. In the peculiar circumstances of the present case failure to explain injuries sustained by Shobha by the appellant is an additional circumstance and the false defence taken by the appellant that the injuries sustained by deceased Shobha in an accident caused due to dash given by rickshaw being false, completes the chain. It is not disputed that after the information given to P.W. 2 Radha about Shobha, she went to the house of the appellant and saw Shobha motionless, doctor was called immediately, who had examined Shobha and declared her dead. Post-mortem on the dead body of Shobha was conducted on the same day i.e. 28th June 2000 and during the course of post-mortem examination, doctor has noticed multiple internal and external injuries sustained by Shobha, which were in ordinary course of nature were sufficient to cause death. 21. It is contended by the learned counsel for the appellant that P.W. 5 in his cross-examination has mentioned about recording of statement of the complainant on 28th June 2000 which is not available on record and at the time of recording of the said statement the complainant did not state anything about anybody. It is no doubt true that it is the duty of the prosecution to conduct the investigation in a straightforward manner and produce all the evidence collected by the prosecution before the court. However, in the facts and circumstances of the present case particularly in 17 view of the consistent and cogent evidence adduced by the prosecution in respect of ill-treatment given by the appellant to the deceased Shobha till the end as well as presence of the appellant at the time of incident in the house, deceased Shobha was in the custody of the appellant at the relevant time, failure on the part of the appellant to explain the injuries sustained by deceased Shobha and a false defence taken by him that the injuries sustained by Shobha were in the accident caused due to dash given by rickshaw, in our view, are the circumstances independently sufficient to prove the charge framed against the appellant and therefore the controversy in respect of statement of the complainant alleged to have been recorded on 28th June 2000 and not placed on record, does not affect the substantive evidence adduced by the prosecution in this case. By the evidence adduced by prosecution as well as defence taken by the appellant while recording his statement under section 313 of the Criminal Procedure Code the possibility of causing injuries to Shobha by any other person has been completely ruled out. Similarly the defence of the appellant that these injuries were sustained by Shobha in accident has been ruled out by the medical