1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.54 OF 2008 1. Jayant Sahebrao Marathe, Age-36 years, Occu-Service, 2. Pravin @ Pratap Sahebrao Marathe, Age-40 years, 3. Ashabai W/o.Sahebrao Marathe, Age-63 years, All R/o.Baherpura, Nandurbar, Dist. Nandurbar APPELLANTS VERSUS 1. The State of Maharashtra 2. Vikas S/o.Bhimrao Shelke, Age-Major, Occu-Business, Near Gotya Maruti, Ghat Road, Chalisgaon, Dist. Jalgaon RESPONDENTS Smt.S.S.Jadhav h/f. Mr.K.C.Sant, learned counsel for the appellants. Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) RESERVED ON : 19/10/2010 PRONOUNCED ON : 22/10/2010 J U D G M E N T : (Per A.V.Potdar, J.) 2 1. By the present appeal, the appellants have questioned the correctness of the judgment and order passed by the Additional Sessions Judge, Nandurbar in Sessions Case No.3/2005, by which the appellants were convicted for the offence punishable u/s. 302 r/w. 34 of IPC, and were sentenced to suffer life imprisonment and to pay fine in the sum of Rs.25,000/- each, i.d. to undergo rigorous imprisonment for 2 years each. The appellants were also convicted for the offence punishable u/s.316 r/w. 34 of IPC, and were sentenced to suffer rigorous imprisonment for 10 years each and to pay of Rs.10,000/- each, i.d. to suffer rigorous imprisonment for one year. It is also ordered that if the fine amount is recovered, then an amount of Rs.1,00,000/- is to be paid to Bhimrao Laxman, father of the deceased Ujjwala. It is also ordered that the substantive sentences shall run concurrently. 2. Such of the facts as are necessary for the decision of this case, can be summarized as : One Mr.S.P.Pawar, who was attached to Nandurbar Police station on 27/12/2004, during his duty hours, received the report from Pratap alias Pravin Sahebrao about accidental death of Ujjwala Jayant Marathe and Mahima Jayant Marathe that Ujjawala and her minor daughter Mahima were succumbed to burn injuries at their residential premises. Accordingly, AD was registered vide AD No. 46/2004 (Exh.145). Thereafter, Bhimrao Mahajan, (P.W.No.9), P.S.O. attached to Nandurbar Police Station, entrusted with the inquiry of the said AD. During the inquiry, he had visited the place of offence 3 and prepared the inquest panchnama of the dead bodies of Ujjwala and minor Mahima in the presence of panch witnesses. (Exh.112). Thereafter, in the presence of panch witnesses, he drew panchnama of scene of offence (Exh.113). While drawing the panchnama of scene of offence, he had seized one plastic can smelling of kerosene, one stove, one plastic pipe and other articles from the place of offence. Then he had sent dead bodies for post mortem to the Civil Hospital, Nandurbar alongwith the requisition letter to the Medical Officer. (Copy of the requisition letter is at Exh.146). P.W.No.6 Dr.Sunil Bhagwat Patil, conducted autopsy on the dead bodies. During the post mortem, he had noticed following external injuries on the dead body of Ujjwala : 100% (Hundred Percent) mixed burn injuries with areas of few blisters and signs of inflammation. Skin over thighs and shoulder found to be splitted. On Internal examination, the Medical Officer had noticed following internal injuries on the dead body of Ujjwala : Larynx, Trichina and : congested and soot Bronchial particles over mucosal area. Right Lung & left lung : Congested and black soot particles present over surface and cut section of lung tissue. Pericardium : Congested Heard with weight Large : Cherry red blood in 4 the Vessels. heart chambers. He had also noted that Ujjwala was carrying 20 weeks pregnancy at the time of her death. Accordingly he found that the probable cause of death is : Cardio-respiratory failure due to shock due to asphyxia, due to burn injuries (100% mixed burns). Accordingly, he had prepared the notes of post mortem (Exh.123). 3. While carrying autopsy on the dead body of Mahima, the minor daughter of Ujjwala, and the first appellant, he had noticed following external injuries. : 100% mixed burn injuries with areas of few blisters and signs of inflammation He had noticed following internal injuries on the dead body of Mahima : Larynx, Trichina : Congested and soot particles over and Bronchial mucosal area. Right lung and left lung : Congested and soot particles present over surface and cut section of lung tissue. Pericardium : Congested. Heard with weight : Heart chambers filled with large vessels cherry red blood. Accordingly he had prepared the notes of post mortem (Exh.125). Thereafter, Bhimrao Shelke (P.W.No.1), father of the deceased, lodged 5 the complaint (Exh.108) against the appellants. On the basis of said complaint, an offence came to be registered vide CR No.185/2004 for the offence punishable u/s. 302, 498-A and B r/w. section 34 of The IPC. He had collected papers of AD inquiry from P.S.I. Mahajan. In the investigation carried out by him, he had recorded statements of mother of deceased Shakuntalabai and others. he had also collected advance death certificate of Ujjwala and Mahima (Exh.122 and 124). Viseras collected while carrying out the autopsy on the dead bodies of Ujjwala and Mahima, were sent to C.A. alongwith requisition letter (Exy.150) on 29/12/2004. On 31/12/2004, he had sent the articles collected from the place of incident to the C.A. for his report alongwith requisition letter (Exh.151) He had also collected the information from the Municipal Council, Nandurbar about the permission of construction obtained for new house of appellant no.1 and its valuation report. He had then collected information from the employer bank of the appellant no.1. Then the appellant no.1 was arrested on 27/12/2004 and appellant no.2 and 3 were arrested on 28/12/2004. After receipt of C.A. report, and after completion of investigation, he had submitted charge sheet against the appellants in the Court of J.M.F.C. Nandurbar. After passing requisite committal order, trial against the appellants was committed to the Court of Sessions, Nandurbar. 4. Learned Trial Court had framed the charge against appellants for the offence punishable u/s. 498-A, 302, 304(B), and 316 r/w. 34 of The IPC, to which the appellants pleaded not guilty and claimed to 6 be tried. During the trial, to substantiate the charges lavelled against the appellants, prosecution has examined Bhimrao Laxman Shelke, father of deceased Ujjwala, who is also complainant, Shakuntala Bhimrao Shelke, mother of the deceased, Hansaben Harilal Dave, the panch witness to the inquest panchnama, who is also neighbourer of the deceased, Rangubai Ashok Waghare and Bansi Onkar Marathe, who are also the neighbourers of deceased, Dr.Sunil Bhagwat Patil, the Medical Officer, attached to Nandurbar Civil Hospital, who had conducted autopsy on the dead bodies of deceased Ujjwala and Mahima, Ramesh Lahanu Wadile, Sub Divisional Officer, attached to Sub-Division, B & C Department, Nandurbar, Surekha Eknath Shinde, first wife of appellant no.2, Bhimrao Motiram Mahajan, who had conducted the AD inquiry and Ashok Baliram Shisode, the Investigation Officer. The case of the prosecution rests on the circumstantial evidence. Defence of the appellants is of denial. 5. According to appellant no.1, on the date of incident, at about 6.30 a.m., when he was sprinkling water on the construction site of his new house, at that time, his wife deceased Ujjwala and daughter deceased Mahima, and his mother Ashabai were present at his residence. At that time, deceased Ujjwala was preparing his lunch box, as he has to go to his duty at Dondai, around 8.00 a.m. When he had left his residence, the deceased was preparing food for him and kneading the white flour. All of a sudden, he heard hue and cry at the rear side of his house. He rushed there, and found that the 7 rear side door was closed. He tried to forcibly open the door, but as the door was not opened, he rushed towards the front side door of the house, where he had noticed that the mob was gathered. When he reached till the last room, which is used as store room, he noticed that the peoples who were gathered at the spot, have opened the door of the store room, and they were trying to extinguish the fire. Ujjwala, his wife and his daughter Mahima were found dead at the spot, for which none of the appellant is responsible, as according to him, at the relevant time, his mother, appellant no.3 was slept in the outer room, while appellant no.2 was at his residence. As he had informed appellant no.2 about the incident, appellant no.2 and his wife came there. Thereafter, appellants have reported the incident to the police, as well as to the relatives of the deceased. In addition to this, written statement filed by the appellants, in their defence, they have also examined Sudhir Bhanudas Kulkarni, who was working as a L.I.C agent, Bhimrao Onkar Borse, working in the office of Collector, Nandubar, as Awwal Karkun, Pradip Pundlik Marathe, Civil Engineer working at Nandurbar, and Bhaiyya Barku Marathe, who is residing at the distance of 40 ft from the place of offence. It appears that the learned Lower Court, by accepting the evidence of prosecution witnesses, and by rejecting the defence version, convicted the appellants for the offence punishable u/s. 302 r/w. 34, and u/s. 316 r/w. 34 of IPC, but acquitted all the appellants for the offence punishable u/s. 304(B), 498-A r/w. 34 of IPC, which judgment is impugned in this appeal. 8 6. Before considering the rival submissions of learned counsel for the appellants and learned APP for State, it is necessary to consider the evidence of the material witnesses as well as the admitted and disputed documents, proved before the Trial Court during the trial. 7. From the evidence of P.W.No.6, Dr.Sunil patil and on perusal of the post mortem notes, one fact is clear that the death of Ujjwala and her minor daughter Mahima is an un-natural death. We have also to take a note that at the time of autopsy conducted on these dead bodies, dead body of minor Mahima was found stuck to the dead body of her mother Ujjwala and during the autopsy, the dead bodies require to be separated. Whether the death of Ujjwala and her daughter Mahima is homicidal, accidental or suicidal, it will be decided in the later part of the judgment, on the basis of other evidence on record. 8. Rangubai Ashok (P.W.No.4) has stated that she is residing in the house abated to the small lane in between the house of appellant no.1 and 3 and her house, which fact is clear from the sketch provided to us showing the situation of the place where the incident had occurred at Exh.174. She has stated that on the date of incident, she saw appellant no.1, kicking on the rear side door of his premises. She had also seen that some smoke was coming out of the window of the house of the appellant. As that door was not opened, appellant no.1 was rushed towards the front side door, to which she followed. After their entry in the house, they had noticed the bodies of Ujjwala 9 and her daughter in burn condition on the rear side room of the premises, occupied by the appellants. She has further stated that the dead body of daughter Mahima was lying on the left lap of the dead body of Ujjwala. Only smoke was there, but there were no flames. She has stated that, she saw appellant no.2 Pravin, parking his motor-cycle in the courtyard of the premises, occupied by appellant Jayant and his mother and saw that appellant no.2 was leaving the premises on his motor-bike on 6.00 a.m. in the morning, which is an omission. It transpired from the cross examination of this witness that she saw Pravin and his wife came on their motor- cycle, in the morning on the day of incident, which is clear from the portion marked 'B' of her statement recorded during the investigation. 9. The next material witness is P.W.No.3 Hansaben Harilal Dave, who is a neighbourer of appellants and also a panch witness to the inquest panchnama. It transpired from her evidence that on 10.00 a.m. on the day of incident, she was called in the premises of the appellants to act as a panch witness. At that time, appellant no.1 and 3 were present there. She had noticed that the dead body of Mahima was lying on the left lap of the dead body of Ujjwala. Both the dead bodies were in burn condition and there were no flames on the bodies. Through this witness, prosecution has proved the inquest panchnama Exh.112. It revealed from her cross examination that appellant no.2 Pravin was not residing with appellant no.1 and appellant no.2 in the premises, where the incident took place. It 10 further transpired from her evidence that the place of incident is the fourh room of the premises, occupied by appellant no.1 and 3, which is used as a store room. The second room was used as a kitchen, where kadhai was on the gas burner, in which cooked vegetables was noticed. There was an utensil with kneaded white flour. 10. It is to be noted that the panchnama of the place of offence is admitted u/s. 294 of The Cr.P.C., by the defence and hence was exhibited at Exh.113. 11. As the accused are acquitted of the charges u/s. 498-A and 304-B, we need not consider it necessary to discuss the evidence of P.W.NO.1 and P.W.No.2, the father and mother of the deceased, as they were examined by the prosecution on the point of demand of dowry, but for that charges, the appellants were acquitted and no appeal is filed by the State. Like prosecution witness no.5, father in law of the second appellant and prosecution witness no.8 Surekha Shinde, the first wife of the 2nd appellant, are on the point of cruelty to P.W.No.8 Surekha at the hands of appellant no.2, hence we need not feel it necessary to discuss this evidence. Rest of the evidence is in the nature of circumstances. 12. In the light of above referred evidence of the prosecution witnesses, we have heard learned counsel for appellants and learned A.P.P. for State. During the course of submissions on behalf of learned counsel for appellants, our attention is drawn towards the 11 evidence of defence witness no.1 Sudhir Kulkarni, on the point of insurance policies taken by the first appellant, to which the deceased Ujjwala was the nominee. Defence witness no.2 Bhimrao Borse was examined on the point that the government quarter was provided to appellant no.2 Pravin. Defence witness no.3 was examined on the point of the construction cost of the newly constructed building of first appellant, and the prosecution witness no.4 Bhaiyya Marathe was examined on two points; one is that he had prepared the map showing the situation of the residential area where the incident occurred, which sketch is not under dispute and on the point that on the day of incident, on hearing the hue and cry at about 7.00 a.m., he rushed towards the premises of the appellants, where he had found Ujjwala and Mahima in burn condition and at that time, Jayant was with them. 13. On careful perusal of the evidence of the material prosecution witnesses, it nowhere discloses the presence of appellant no.2, to which we are in agreement. It is further submitted that the first appellant has made his defence clear, which we have discussed in one of the paragraph supra, where appellant no.1 tried to set up the defence that at the time of alleged incident, he was sprinkling water over the newly constructed premises and when he had left his premises, at that time, Ujjwala was preparing his tiffin. The vegetable was already cooked and she was kneading the flour. Thus, according to learned counsel for appellant, no doubt the manner in which Ujjwala and Mahima succumbed to burn injuries, but 12 considering the admitted panchnama of the scene of offence, it is a case either of accidental death or a suicidal death. As according to her, the evidence of P.W.No.4 Rangubai demonstrates that she saw appellant no.1 gave kick on the rear side door, but it was not opened and furthermore, he draw our attention to the photographs at Exh. 130 to 141 and particularly the photograph in which the door of the store room was found partly opened. According to her, door of the store room was forcibly opened and the switch board is in partly burnt condition, indicates that the door of the store room was latched from inside and was forcibly opened from the outside. In the premise, according to her, the death of Ujjwala and Mahima is either accidental death or a suicidal death. According to her, at any costs, the death of Ujjwala and Mahima do not cover under the ambit of custodial death. It is also urged across the bar that as per the defence of the first appellant, he was sprinkling water to the newly constructed house, and came to the store room where the incident occurred only after hearing the hue and cry near his residence, on noticing the smoke coming out of the 4th room i.e. the store room. Learned counsel for the appellants has also urged before us that the statements of certain neighbourers recorded during investigation reveal that the appellant no.1/original accused no.1 was present at the site where the new house is being constructed. Obviously, statements recorded under section 161 of the Code of Criminal Procedure can not be used. It was always open to the accused to have examined those witnesses. In any event, no inference either in favour of the prosecution or in favour of the accused can be drawn on 13 the basis of statements recorded during investigation. According to the learned counsel for appellants, this defence of the appellants to be accepted and appeal be allowed. As against this, learned A.P.P. supports the judgment and order passed by the learned Lower Court, convicting the appellants for the alleged charges and the sentence awarded to them. 14. During the course of submissions across the bar, our attention is drawn towards the ratio laid down by the Apex Court in the matter of Narendra Singh and another versus State of M.P., reported in 2004, AIR SCW 3094, and urged that the entire case is based on the circumstantial evidence. Pieces of circumstances, however, strong may be, it is well-known that all the links in the chain must be proved. As the vital links in the chain are not proved, benefit of doubt be given to the appellant accused. Further reliance is placed on the observations in the matter of Dasari Siva Prasad Reddy versus Public Prosecutor, High Court of A.P., reported in 2004 AIR SCW 5068, and the observations in Rajkumar versus State of M.P.,reported in 2004 AIR SCW 5137. According to us, the facts and circumstances of the case before the Apex Court, and the facts and circumstances of the present case are not identical, hence the ratio laid down therein is not applicable to the present appeal. 15. It is observed by the Apex Court in the matter of Manjunath Chennabasapa Madalli versus State of Karnataka, reported in 14 2007, AIR SCW 3196, wherein it is observed that, "It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person (See Hukam Singh V. State of Rajasthan AIR (1977 SC 1063), Eradu and others versus State of Hyderabad (AIR 1956 SC 316), Earabhadrappa Versus State of Karnataka (AIR 1983 SC 446); State of U.P. versus Sukhbasi and others, (AIR 1985 SC 1224); Balwinder Singh versus State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee versus State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram Versus State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 15 In the said paragraph, reference is given about the decision in the matter of Sharad Birdichand versus State of Maharashtra, reported in AIR 1984, SC 1622. 16. In the light of these observations, and the evidence on record, we find following circumstances, which require serious consideration : A) Relation between appellant no.1 and 3 with deceased Ujjwala and Mahima is not under dispute, B) The death of Ujjwala, wife of appellant no.1 and daughter in law of appellant no.3 and Mahima, the daughter of appellant no.1 and grand daughter of appellant no.3 was occurred in the matrimonial residence, is not under dispute. C) The place of incident as per map at Exh.174 is in the store room and as per the spot panchnama Exh.113, this room was used for storing the construction material. D) Dead body of Mahima was found on the left lap of Ujjwala, which fact stand established from the spot panchnama Exh.113, inquest panchnama Exh.112 and the evidence of P.W.No.6, the autopsy surgeon, who conducted autopsy on the dead body of deceased, who had stated in his evidence that at the time of autopsy, he has to separate the dead body of minor Mahima from the left lap of deceased Ujjwala. E) On clear perusal of spot panchnama Exh.113, it nowhere demonstrates that the latches of the store room/the place of incident, were forcibly broken, which suggests that the store room was latched 16 from inside of the deceased. F) Evidence of P.W.No.3 nor the evidence of P.W.No.10 demonstrates in their cross examination that the door of the store room was forcibly broken by the outsiders. The cumulative effect of all these circumstances require to be considered in the light of the fact that at the time of incident, Ujjwala was carrying 20 weeks pregnancy. Age of her daughter Mahima was 1-1/2 years. In case of accidental burn injuries, Mahima was not suppose to found on the lap of deceased Ujjwala as due to natural love and affection of mother towards her child, the mother will throw her infant outside the store room in case clothes on her person catch with fire. In case of suicidal death, no any circumstance appeared to be brought on record which can prove that Ujjwala was instigated to commit suicide. The most important factor is that though the stove, was found near the place of incident and was seized, it do not indicate that the incident was occurred due to flaring of stove. Apart from it, the pieces of clothes which were collected from the dead body at the time of spot panchnama, were referred to the C.A., and the C.A. report revealed that they were the burnt pieces of bed-sheet and not the pieces of the clothes on the person either of deceased Ujjwala or of deceased Mahima. All these facts indicate that death of Ujjwala and Mahima is neither accidental nor suicidal death, but the inference can be drawn that the death of Ujjwala and Mahima is homicidal death. Record shows that the conduct of appellant no.3, on the date of alleged incident appears to be un-natural and 17 abnormal. No hue and cry was made by appellant no.3, nor heard by outsiders when Ujjwala and Mahima succumbed to burn injuries. No evidence is on record to show that at the time of incident, appellant no.1 was outside the premises and on hearing the shouts came at the spot, even though, Rangubai deposed before the Lower Court that after hearing hue and cry, appellant no.1 came there and