1 Cri.Appeal No. 145 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 145 OF 2009 Sudhakar s/o Waman Sawant, Age 45 yrs. Occ. Nil, R/o Mahindale, Tq. Bhadgaon, Dist. Jalgaon ..APPELLANT VERSUS The State of Maharashtra (Through Rajesh Sudhakar Sawant, of Mahindale, Taluka Bhadgaon, in Crime No.97/2007 of Bhadgaon PS) ..RESPONDENT (Orig. complainant) Mr R.R. Chandak, Advocate (appointed) for the appellant; Mr K.S. Patil, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 6th December, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant/accused, who stands convicted for an offence punishable under section 498-A and 302 of the Indian Penal Code and sentenced to R.I. for three years and to pay fine of Rs.3,000/-, in default 2 Cri.Appeal No. 145 of 2009 of which to undergo further R.I. for three months and imprisonment for life and to pay fine of Rs.5,000/-, in default to suffer further R.I. for six months, by the Additional Sessions Judge, Jalgaon, by judgment dated 30.7.2008, in Sessions Case No.214 of 2007, 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.6 P.S.I. Farooq Khan, who was attached to the Bhadgaon police station received an information on 2.9.2007 that a lady had died at village Mehendale. P.W.1 Rajesh came to the police station and lodged his complaint at Exh.9. On the basis of the complaint of P.W.1 Rajesh, son of the appellant, an offence vide Crime No.97 of 2007 came to be registered under section 498-A and 302 of the Indian Penal Code. On registration of the offence, investigation was entrusted to P.W.6 P.S.I. Khan. He accordingly visited the scene of the offence and noticed the dead body lying there. He drew the inquest panchnama at Exh.13 in the presence of P.W.2 Sarlabai. Dead body of deceased Sayankabai was referred for post mortem examination and accordingly post mortem on the dead body of deceased Sayankabai came to be performed by P.W.7 Dr. Bade. P.W.7 Dr. Bade noticed the following external injuries :- 3 Cri.Appeal No. 145 of 2009 Abrasion, 15 x 1 cm. present over neck above the level of thyroid cartilage, 3 cms below the symphysis mentum and 8 cm. above supra sternal nodge. Ligature mark was blackish in colour and shows rope marks. On internal examination he found the internal organs to be congested and synosis of both the nails of upper limps. Mucosa of larynx, trachea and bronchi were congested. The lungs were intact but the cut section revealed congestion. He, therefore, opined that the probable cause of death of Sayankabai was asphyxia as a result of compression of neck by ligature. The post mortem report is at Exh.25. 3. Meanwhile, P.W.6 Farooq Khan drew the scene of the offence panchnama at Exh.18 in the presence of P.W.5 Kailash. One handkerchief, one nylon string and pieces of bangles were seized from the scene of the incident. The clothes worn by deceased Sayankabai came to be seized and the accused came to be arrested on 2.9.2007 vide arrest panchnama at Exh.21. The seized articles were referred to the Chemical Analyser along with the requisition at Exh.22. Further to the completion of investigation a charge-sheet against the appellant/accused came to be filed. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.4 framed charge against the appellant for offence punishable under 4 Cri.Appeal No. 145 of 2009 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 seven witnesses. The defence of the appellant is of denial. 5. In order to appreciate the submissions advanced before us by the learned Counsel for the appellant, it would be useful to refer to the evidence of the prosecution witnesses. P.W.1 Rajesh, son of the appellant, states that deceased Sayankabai was his mother and she used to do labour work. He further states that his father was unemployed and used to consume liquor and used to indulge in gambling. The appellant used to demand money and on that count there used to be frequent quarrels between the appellant and deceased Sayankabai. He further states that the appellant used to assault deceased Sayankabai after consuming liquor. P.W.1 Rajesh further states that he had tried to convince his parents but it was futile. He states that on 1.9.2007 in the evening the accused had come to him after consuming liquor and had quarrelled with deceased Sayankabai. He had also assaulted deceased and had demanded money from her. Rajesh states that he tried to control his father, but his father could not be controlled. He states that at about 11.00 p.m. he and deceased Sayankabai went to sleep. On the next day morning when he awakened he noticed that his mother was on a cot and her face was covered by a handkerchief. He states that his father was present in the house. On touching her body he found that the body of his mother was cold. He 5 Cri.Appeal No. 145 of 2009 also noticed one string lying under the cot. A ligature mark was present around the neck of his mother. According to him, he started crying and thereafter people gathered at the scene and thereafter he had lodged his report with the police. In cross-examination he has admitted that he awakened from his sleep at 7.30 a.m. He states that his maternal uncle Nimba and the other relatives gathered at the scene within 10 to 15 minutes. He has further admitted that the police arrived at his house at about 1.45 p.m. He states that on account of death of his mother he was mentally disturbed and, therefore, did not go to police station immediately. Omission has been duly pointed out that he had not stated in his report that the accused had demanded money from his mother on the day of the incident. Similarly, omission has been pointed out that P.W. 1 Ramesh tried to control his father but his father could not be controlled. He has admitted to have stated portion marked "A" from his report by which he had stated that the napkin was lying near the dead body of his mother. He has agreed as correct that his father had agreed to purchase the field of Ramdas for Rs.1,20,000/-. He has also agreed in cross- examination that the transaction to purchase field from Ramdas was cancelled and that his maternal uncle Nimba had taken steps for cancelling the said transaction. He has denied the suggestion that his mother had given hand loans to certain persons. He has admitted that Nimba had demanded certain money from his mother. He has, however, denied the suggestion that Nimba had abused his father as he had refused to advance money to Nimba. 6 Cri.Appeal No. 145 of 2009 6. Prosecution has examined P.W.3 Ramrao, brother of Sayankabai. P.W.3 Ramrao states that deceased Sayankabai was married to the appellant sometime in the year 1987 and since then they were residing at village Mehendale. He has admitted that P.W.1 Rajesh was studying in the 12th standard at the time of the incident. He has also admitted that accused Sudhakar was serving as a Waiter in the Railway Department but since last 4 to 5 months he was unemployed. He states that the appellant used to gamble and also used to consume liquor and thereafter used to quarrel with his wife deceased Sayankabai. He states that mental and physical harassment was caused to deceased Sayankabai. He states that on 2.9.2007 P.W.1 Rajesh had informed him on telephone that the accused had committed murder of Sayankabai by strangulating her. He states that he immediately rushed to the house of the accused and saw the dead body of his sister. He noticed a ligature mark around her neck and broken bangles. He also noticed one nylon string lying there. He has admitted that his statement was recorded by the police during investigation. Omission has been duly proved that he had not stated that the accused used to gamble and used to snatch the money from Sayankabai. Omission has been duly proved that he had not stated that he had noticed a nylon string and handkerchief lying near the dead body. Omission has been duly proved that he had not stated about the broken bangles. In further cross-examination he has admitted to have reached village Mehendale at 10.00 a.m. According to him the police 7 Cri.Appeal No. 145 of 2009 arrived at the scene at about 1.45 p.m. and on the next day recorded his statement. He has denied the suggestion that the accused had agreed to purchase his field. He has denied the suggestion that the transaction was cancelled due to the intervention of his brother Nimba. 7. Prosecution has examined P.W.4 Adhar, an uncle of deceased Sayankabai, who states that the accused was addicted to liquor and used to gamble. He states that the accused used to demand money from Sayankabai and for that reason used to quarrel with her and also used to assault her. He states that on 1.9.2007 there was a quarrel between the accused and deceased Sayankabai and they were quarrelling till midnight. He states that on the next day Rajesh informed him that his father had committed murder of his mother by strangulating her. He states that he had noticed the pieces of bangles, nylon string and a napkin lying near the dead body. He had stated that he had noticed a ligature mark around the neck of the deceased. In cross-examination omission has been duly proved that he had not stated in his previous statement that accused used to demand money from Sayankabai. He had also not stated about the quarrel between the appellant and deceased which went on till midnight. Omission has been duly proved that he had not stated that Rajesh had informed him that the appellant had committed murder of deceased by strangulating her. Omission has been duly proved that he had not referred to the pieces of bangle lying near the dead body. 8 Cri.Appeal No. 145 of 2009 8. P.W.7 Dr. Bade, who had performed the post mortem examination has clearly stated that the rope - article 12 could cause the ligature mark which was mentioned in column no.17 of the post mortem report. He has also stated that the reason as to why the mark was deficient on the lateral side was on account of either the hair or the cloth at that particular place of the neck. In cross-examination he has admitted that he did not observe signs of struggle on the body of the deceased. He has also admitted that he did not notice any injuries on the accused during the medical examination. He has also admitted that hyoid bone was not fractured and generally the hyoid bone is fractured in cases of strangulation. 9. Learned Counsel for the appellant has urged before us that the appellant in his written statement under section 313 of the Code of Criminal Procedure had stated that he was not present in the house and that the deceased may have committed suicide. It is also urged before us that if the appellant had strangulated the deceased, it is curious that none of the neighbours had heard the cries of deceased including P.W.1 Rajesh. The learned A.P.P. has supported the judgment of the Trial Court. 10. Evidence of P.W.1 Rajesh clearly indicates that the appellant was present in the house during the intervening night. If the appellant was not present in the house, it was for the appellant to lead evidence and 9 Cri.Appeal No. 145 of 2009 establish by preponderance of probabilities that the appellant was somewhere else. The appellant, therefore, according to us, has failed to discharge the burden of establishing his alibi. If the deceased had committed suicide, we find it extremely strange that the deceased would be found on the bed with the string lying beneath the cot. The appellant and deceased were in the room and it was for the appellant to have satisfactorily explained as to the manner in which deceased had sustained the injuries. It is not suggested to P.W.1 Rajesh that he was also sleeping in the same room. In such circumstances, failure of Rajesh to hear any screams of the deceased would not materially affect his evidence. The deceased had died a homicidal death, i.e. she had died as a result of the strangulation and it was for the appellant to have explained the manner in which deceased had sustained the injuries. The circumstantial evidence, therefore, clearly implicates the appellant/accused. 11. In respect of the offence punishable under section 498-A of the Indian Penal Code, we find that there is absolutely no evidence to justify the conviction of the appellant for the offence punishable under section 498-A of the Indian Penal Code. The allegations of illtreatment are extremely vague and omnibus. In the absence of any particulars, mere vague allegations that the appellant used to assault his wife after consuming the liquor would not be sufficient to justify the conviction for the offence punishable under section 498-A of the Indian Penal Code. In 10 Cri.Appeal No. 145 of 2009 respect of the offence punishable under section 302 of the Indian Penal Code is concerned, according to us the chain of circumstantial evidence so established excludes every hypothesis of the innocence of the accused and unerringly points to the guilt of the accused. We, therefore, see no merit in the present appeal. 12. For the reasons stated above, Criminal Appeal is partly allowed. The appellant/accused is acquitted of the offence punishable under section 498-A of the Indian Penal Code. Fine, if paid by the appellant in respect of his conviction under section 498-A of the Indian Penal Code be refunded to him. His conviction and sentence for offence punishable under section 302 of the Indian Penal Code is hereby maintained. Appeal is accordingly partly allowed. We quantify the fees payable to the learned Counsel appointed on behalf of the appellant at Rs.5,000/-. ( A.V. POTDAR, J.) ( P.V.HARDAS, J.) amj/cria145.09