1 Cri.Appeal No.77 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 77 OF 2011 Satish s/o Dilip Kharade, Age : 35 years, Occupation : Service, R/o Tikhi, Tq. Karjat, Dist. Ahmednagar ..APPELLANT (Ori. Accused) VERSUS The State of Maharashtra ..RESPONDENT Smt. S.S. Jadhav, Advocate for the appellant; Mr S.K. Tambe, Addl. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 5th August, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under sections 498-A and 302 of the Indian Penal Code and sentenced to R.I. for three years and to pay fine of Rs.2,000/-, in default of which to undergo further R.I. for six months and imprisonment for life and to pay fine of Rs.2,000/-, in default of payment of fine to undergo further R.I. for 2 Cri.Appeal No.77 of 2011 six months, with a direction that substantive sentences shall run concurrently, by the Ad hoc Additional Sessions Judge, Ahmednagar, dated 6.1.2011, in Sessions Case No.6 of 2010, by this appeal questions the correctness 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.10 A.S.I. Rangnath Sonawane, who was attached to the Karjat police station was on duty on 13.9.2009. P.W.1 Dada came to the police station and lodged his report at Exh.13. On the basis of the said report an offence vide Crime No.173 of 2009 under sections 498-A and 302 of the Indian Penal Code came to be registered. Investigation of the said offence was entrusted to P.W.9 P.I. Nandkumar Ghorpade. P.W.9 P.I. Ghorpade, who was attached to police station, Karjat, had received information that the accused had killed his wife and persons had gathered at the scene of the offence. He immediately proceeded with staff to the scene of the offence and noticed the dead body of deceased Indubai. He accordingly instructed P.W.1 Dada to lodge his report and after the offence came to be registered, the investigation was entrusted to P.W.9 P.I. Ghorpade. He accordingly drew the inquest panchnama of deceased Indu in the presence of P.W.2 Balu and another panch at Exh. 15. He referred the dead body of deceased Indu for post mortem examination. The scene of the offence panchnama came to be drawn in 3 Cri.Appeal No.77 of 2011 the presence of panchas at Exh.17. On the next day he recorded the statements of witnesses and also recorded the statement of P.W.5 Dr. Sanjay Kolhe. Statement of P.W.7 Gayabai, mother of the appellant, came to be recorded under section 164 of the Code of Criminal Procedure by P.W.8 Bhaskar Bhos, a Special Judicial Magistrate. Further to the completion of investigation, a charge-sheet against the appellant came to be filed by P.I. Shri Shelke. The appellant/accused came to be arrested by P.W.9 P.I. Ghorpade under arrest panchnama at Exh.37. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.4 framed charge against the appellant for offence punishable under section 498-A and 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined ten witnesses, while the accused in his defence examined D.W. 1 Mahadev. The Trial Court accepted the case of the prosecution and repelled the defence of the appellant that deceased Indu had sustained the injuries on account of accidental fall of trunks which were kept on the loft. The Trial Court accordingly convicted and sentenced the appellant. 4. In order to appreciate and deal with the submissions advanced before us by Smt. Sadhana Jadhav, learned Counsel for the appellant and the learned Addl. Public Prosecutor for the respondent - State, it would be useful to refer to the evidence of the prosecution witnesses. 4 Cri.Appeal No.77 of 2011 P.W.1 Dada, father of deceased Indu and the first informant, states that Indu was married to the appellant about thirteen years prior to the incident. The appellant was working in the Army as a Driver. Indu had given birth to three children. The appellant/accused was residing at the place of his posting and initially Indu had resided along with the appellant, but at the time of the incident Indu was residing at village Tikhi in the house of the appellant. At the time of the incident the appellant was serving at Nashik and during that period the appellant used to frequently come to his house at village Tikhi after an interval of about fifteen days. P.W.1 Dada states that the appellant used to talk to him on telephone. Dada further states that the appellant had illtreated Indu for failure to meet the demand for money for purchase of a vehicle. The appellant also was suspecting the character of Indu. Dada states that he had given an amount of Rs.50,000/- to the appellant for purchasing a motorcycle, but even thereafter the appellant used to illtreat deceased Indu as the appellant/accused had further demanded an amount of Rs.1,00,000/-. Dada claims to have paid Rs.1,10,000/- to the accused by obtaining loan from the Parasnath Sanstha. Dada states that his daughter Meera had informed him about the illtreatment and beating given to Indu by the accused. About a fortnight prior to the incident, daughter-in-law of P.W.1 Dada, i.e. P.W.4 Anita had gone to the house of Indu and at that time she had noticed that Indu had sustained injury to her hand. Deceased Indu accompanied by the appellant and Anita had come to the house of P.W.1 Dada and P.W.1 Dada had taken Indu to a Hospital for treating the injury 5 Cri.Appeal No.77 of 2011 which Indu had sustained to her hand. Indu had resided at the house of P.W.1 Dada for about two days and Indu had then narrated to P.W.1 Dada that the appellant had scratched her by his nails and thereby she had sustained the injury. P.W.1 Dada states that he had requested the accused that he should not assault Indu and Dada had promised to pay him money but even thereafter the appellant used to illtreat and assault Indu as the appellant was suspecting her character. 5. P.W.1 Dada states that on 13.9.2009 his son had received a message that Indu had died. The appellant/accused had informed uncle of Indubai, namely Ajinath that Indu had died. P.W.1 Dada, Ajinath and his wife along with the son of Dada had been to village Tikhi in a vehicle and had noticed the dead body of Indu. Indu had sustained bite injuries on her face, abrasions on her forehead and shoulder and had a ligature mark on her neck. Indu had sustained other injuries and, therefore, P.W. 1 Dada had lodged his report at the police station at Exh.13. 6. In cross-examination he has admitted that he had received an amount of Rs.5,00,000/- to Rs.6,00,000/- after his retirement. He has further admitted that he had not lodged any earlier complaint against the appellant in respect of illtreatment to the deceased. He has also admitted as correct that Indubai was residing at village Tikhi because the appellant was required to leave quarters at Bhatenda and thereafter Indubai was to join the appellant at Nashik. Omission has been duly 6 Cri.Appeal No.77 of 2011 proved that he had not stated in his report that about fifteen days prior to the incident daughter-in-law of P.W.1 Dada had gone to the house of Indu and thereafter Indu accompanied by her husband and the daughter-in-law of P.W.1 had returned to his house and that Indu had sustained an injury on her hand. In further cross-examination he has admitted that he does not remember the date, month and year when he had paid Rs.50,000/- and Rs.1,10,000/- to the appellant/accused. He has, however, stated that he had paid Rs.50,000/- to the appellant two years prior to the incident. 7. Prosecution has also examined P.W.4 Anita, daughter-in-law of P.W.1 Dada and sister-in-law of deceased Indu. P.W.4 Anita states that while Indu was residing with the appellant, Indu was illtreated by the appellant/accused and the appellant/accused used to assault her as he was suspecting her character. Anita further states that her father-in-law, P.W.1 Dada had given Rs.1,00,000/- to the appellant and the appellant was thereafter demanding Rs.1,00,000/- and for non payment of that amount the appellant used to illtreat Indu. Anita also states that deceased Indu had informed her about the illtreatment when she had come to the house of P.W.1 Dada and she had also informed Anita and others on telephone. Anita further states that about fifteen days prior to the incident she had gone to village Tikhi to meet Indu. She had noticed that the left hand of Indu was swollen and on her inquiry Indu had informed her that the appellant had assaulted her as he was suspecting her character. Anita states that thereafter she took Indu to the house of 7 Cri.Appeal No.77 of 2011 P.W.1 Dada from village Rashin and thereafter had taken Indu for treatment to the hospital of Dr. Shah. Indu resided at the house of P.W.1 Dada for two days and thereafter the appellant had come to the house of P.W.1 Dada and had taken Indu along with him. P.W.1 Dada had requested the appellant not to assault Indu. P.W.4 Anita states that on 13.9.2009 her husband received a telephone call informing him that Indu had died. Anita accompanied by her father-in-law, mother-in-law and other relatives went to village Tikhi and had noticed the dead body of Indu lying on the bed. Indu states that thereafter her father-in-law had lodged a report with the police. In cross-examination Anita has admitted that no complaints had been lodged against the accused for the illtreatment given to Indu. She has admitted that she cannot name the shop from which P.W.1 Dada had purchased a motorcycle for the appellant. She has admitted that she could not state as to how many days prior to the incident the appellant had demanded Rs.1,00,000/- from Indu. Omission has been duly proved that she had not stated in her previous statement that when she had gone to the house of Indu she had seen swelling on the left hand. The omission is only in respect of "left hand". She has admitted that the economic condition of the family of the appellant is good. 8. Prosecution has also examined P.W.5 Dr. Kolhe, who had examined Indu on 13.9.2009, at about 5.00 a.m. P.W.5 Dr. Kolhe states that on 13.9.2009 he was sleeping at about 5.00 a.m. and was awakened 8 Cri.Appeal No.77 of 2011 by father-in-law of Indu, who informed him that Indu was serious. P.W.5 Dr. Kolhe reached the house of the appellant at about 5.30 a.m. and examined Indu. On examining Indu he noticed that Indu was dead. There was an injury on her neck which appeared due to strangulation and the body was totally cold. He has opined that Indu may have died three to four hours prior to his examination. In cross-examination he has admitted that he is qualified as a B.H.M.S. and the injuries sustained by Indu were minor in nature. He has denied the suggestion that the injuries on the neck of Indu were possible due to falling of utensils on her neck. 9. Prosecution has also examined P.W.7 Gayabai, mother of the appellant/accused, who did not support the prosecution and was declared hostile. P.W.7 Gayabai states that the relations between the appellant and Indu were cordial and the appellant had never assaulted Indu. In cross-examination on behalf of the prosecution, portions at A, B, C, D, E, F and G were denied to have been stated by her. In cross- examination on behalf of the accused she had reiterated that the accused had not assaulted Indu on the ground that he suspected her character. She states that the appellant and Indu were sleeping in the kitchen. There is a cooking platform in the kitchen and there was a bed and a show-case in the kitchen. One plank was affixed to the wall on which house-hold articles including iron box were kept. According to her, after their dinner when she was in her room she had heard noise of something falling and thereafter had heard the cries. She states that she 9 Cri.Appeal No.77 of 2011 went in the kitchen and saw that an iron box and other articles were lying on the person of Indu. She states that her husband had gone and had called a Doctor who pronounced that Indu had died. She has stated that no amount was paid by P.W.1 Dada to the accused. 10. P.W.6 Dr. Sucheta Yadav had conducted the post mortem examination and according to P.W.6 Dr. Yadav, she had noticed the following injuries :- 1) Contusion over right side of neck below ear/3 cm. x 2 cm.; 2) Contusion (multiple contusion) over left side of neck; 3) Contusion over left shoulder 2 cm x 2 cm over; 4) Multiple small abrasions over left side of neck 1/4th x 1/4 cm. each 5) Abrasion over right side of neck below ear, 1/2 x 1/4 cm. 6) Contusion over right side of forehead, 3 cm x 1 cm.; 7) Contusion 1 cm. above injury No.6, 1 cm x 1 cm; 8) Semi lunar abrasion over left cheek; 9) Contusion over right thigh, 10 cm x 2 cm; 10) Contusion over thigh anteriorly vertical, 4 cm x 1 cm. 11) Multiple small abrasion over right side of face, 1/4th x 1/4th cm. each; 12) On V shaped incision of neck haemorrhage in subcutaneous tissue and muscles seen. 10 Cri.Appeal No.77 of 2011 On internal examination she had noticed haematoma on the right side of frontal region, 3 cm x 3 cm. and the brain and its coverings were congested. She had noticed contusion around the muscles of larynx. Liver was lacerated over the right side of lobe, 3 cm x 1 cm x 1/4 cm and there was a lacerated wound to the spleen, 2 cm x 1 cm x 1/4th cm. Both the lungs and kidneys were congested. She has opined that cause of death was due to asphyxia due to throttling. The post mortem report is at Exh.21. She has further stated that injury no.1 i.e. contusion over the right side of the neck below the ear may be caused due to pressing of the thumb on the neck while injury no.1 may be caused due to hard and blunt object, while injury no.8 may be caused due to teeth bite. She has further stated that injury no.12 may be caused due to throttling as she had noticed haemorrhage in the subcutaneous muscle. 11. In cross-examination she has admitted that she is serving as a Medical Officer since the year 2002. She has admitted that her father was also residing at Rashin. She has admitted that contusions are possible due to falling of blunt object on the body and has admitted that injuries no.3, 5, 6, 7, 9 and 10 may be possible due to falling of hard substance on the body. She has, however, denied the suggestion that injury no.11 is also possible due to falling of hard substance on the body, because they were multiple abrasions. She has admitted that the incision i.e. injury no.12 was made at the time of post mortem and is a post mortem injury while injuries no.1 to 11 are ante mortem injuries. 11 Cri.Appeal No.77 of 2011 12. P.W.9 Nandkumar Ghorpade, Investigating Officer states in cross- examination that the scene of the offence comprises of two rooms; one is towards the eastern side and the other is towards the western side. He has admitted that the room where the incident occurred is divided into two parts. In one part there is a kitchen platform and the width between the kitchen platform and the wall is 2 ft. He has admitted that towards the southern side of the room there were articles like boxes, etc. He has further admitted that inside that room one plank is kept for keeping small tin boxes. He has further admitted that there was a cot and one small show-case. 13. The appellant has examined D.W.1 Dr. Nagargoje as a defence witness. According to D.W.1 Dr. Nagargoje, the injuries mentioned in the post mortem report were possible due to fall of heavy trunk. According to us, no reliance whatsoever can be placed on the evidence of D.W.1 Dr. Nagargoje as he is not the Medical Officer who had performed the post mortem examination. He has tendered his opinion merely by perusing the post mortem report. D.W.1 Dr. Nagargoje also does not state that he had actually seen the so called trunks which had fallen on deceased Indu. 14. The appellant/accused in his statement under section 313 of the Code of Criminal Procedure has admitted his presence in the house at 12 Cri.Appeal No.77 of 2011 the time of the incident. However, according to him, deceased was standing on a small stool and the trunks had accidentally fallen on her and thus she had sustained the injuries. Looking to the injuries, especially on the various parts of the body and the opinion which is expressed by Dr. Yadav, and which remains unshaken in the cross- examination, the defence of the appellant/accused is required to be repelled. The appellant/accused has not offered any probable explanation for the injuries sustained by deceased Indu. Evidence of P.W.1 Dada and P.W.4 Anita clearly establish that the accused was illtreating deceased Indu on account of failure of the parents of Indu to satisfy the illegal demand for Rs.1,00,000/-. The illtreatment had been continuous. Omissions which are elicited in the evidence of P.W.1 Dada and P.W.4 Anita are on extremely peripheral nature of their testimony and the core of their testimony remains unshaken. Scene of the offence panchnama at Exh.17 also does not show that big trunks were placed on the wooden plank. When the scene of the offence panchnama was drawn, the so called trunks were not found lying on the ground near the dead body of deceased Indu. The defence of the appellant/accused, therefore, is an afterthought, which is in conflict with the evidence on record. According to us, therefore, the prosecution has proved the offence against the appellant beyond reasonable doubt and the findings recorded by the Trial Court cannot be faulted with. 13 Cri.Appeal No.77 of 2011 15. After giving our anxious consideration to the submissions advanced before us by the learned Counsel for the parties, according to us, there is no merit in the present appeal and the present appeal, therefore, deserves to be dismissed. 16. Accordingly, Criminal Appeal No.77 of 2011 is dismissed confirming the conviction and sentence. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria77.11