1 Cri.Appeal No. 85 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 85 OF 2010 Santosh @ Satish s/o Vasantrao More, Age 23 years, Occ. Agriculture, R/o Tirthapuri, Tq. Ghansawangi, Dist. Jalna ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mr Satej Jadhav, Advocate holding for Smt. S.S. Jadhav for the appellant; Mrs S.D. Shelke, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 13th June, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 498-A of the Indian Penal Code and 302 of the Indian Penal Code and sentenced to R.I. for two years and to pay fine of Rs.2,000/-, in default of which to undergo further R.I. for one month and imprisonment for life and to pay fine of Rs.5,000/-, in default of which to undergo further 2 Cri.Appeal No. 85 of 2010 R.I. for six months, by the Ad hoc Additional Sessions Judge-1, Jalna, by judgment dated 6.1.2010, in Sessions Case No.65 of 2009, 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.9 Shirish Rathod, a P.S.I. who was attached to the Gondi Police Station, conducted an inquiry in A.D. No.45 of 2008 which was registered in respect of death of Kaveribai. The A.D. report is at Exh.35. He accordingly proceeded to the scene of the offence and drew the inquest panchnama at Exh.23 and thereafter drew the scene of the offence panchnama at Exh.22. Dead body of deceased Kaveribai was referred for post mortem examination and post mortem came to be conducted by the Medical Officer attached to the Primary Health Centre, Tirthpuri. As per the post mortem report at Exh.52, a ligature mark was seen around the neck starting at 2 cms. below the right mastoid process running horizontally at level of thyroid cartilage encircling left side, back of neck and ending at 2" below the right mastoid process. Contused laceration was seen at the junction of two ends. The Medical Officer, therefore, opined that the probable cause of death was due to strangulation. P.W.1 Jagan, father of deceased lodged his complaint at Exh.32 and on the basis of the complaint at Exh.32 an offence vide Crime No.162 of 2008 came to be registered under section 304-B, 398-A read 3 Cri.Appeal No. 85 of 2010 with section 34 of the Indian Penal Code and under sections 3 and 4 of the Dowry Prohibition Act. The investigation of the said crime was retained by P.W.9 P.S.I. Rathod. He accordingly arrested the accused and recorded the statements of the relatives and neighbours of deceased. During custodial interrogation the appellant expressed his willingness to point out the rope which had been hidden by him in his house. The aforesaid statement came to be recorded in the presence of panchas at Exh.45. The appellant/accused led the police and the panch to his house and after going inside produced a rope which had been hidden beneath stones and bricks. The said rope came to be seized under panchnama at Exh.50. P.S.I. Rathod came to be transferred and accordingly the investigation was entrusted to P.W.6 A.P.I. Umbe, who referred the seized articles to Chemical Analyser along with the requisition at Exh.42. Further to the completion of investigation a charge-sheet against the appellant came to be filed. 3. On committal of case to Court of Sessions, Trial Court vide Exh. 12 framed charge against the appellant and other accused for offence punishable under section 304-B, 498-A and under section 3 and 4 of the Dowry Prohibition Act read with sec. 34 of the Indian Penal Code. The charge subsequently came to be amended and vide Exh.25 the charge was framed for an offence punishable under section 498-A, 304-B, 302 read with sec. 34 of the Indian Penal Code and 3 and 4 of the Dowry Prohibition Act. All the accused denied their guilt and claimed to be 4 Cri.Appeal No. 85 of 2010 tried. Prosecution in support of its case examined nine witnesses. The appellant in his statement under section 313 of the Code of Criminal Procedure has taken a defence that on the day of the incident he had gone to village Tirthpuri for attending his work in the ginning factory. His parents were in the agricultural field and the deceased was present in the house along with the grand-mother of the appellant. There was a quarrel between them which annoyed the deceased and, therefore, the deceased committed suicide by hanging herself. 4. Prosecution has examined P.W.1 Jagan, father of deceased Kaveri. Jagan states that deceased Kaveri was married to the appellant in March, 2008 and an amount of Rs.61,000/- was given by way of dowry. According to P.W.1 Jagan, all the accused started illtreating to Kaveri for failure to meet the demand for Rs.50,000/- for starting their shop. According to Jagan, his daughter Kaveri had disclosed to him and he had paid an amount of Rs.10,000/- to his daughter. According to him, a telephone call was received at the house of the neighbour from nephew of accused no.2. On the next day another telephone call was received and Jagan accordingly contacted the house of the accused and was informed that Kaveri was ailing and he should go there. At 4.00 p.m. he received information that Kaveri had died. Jagan along with others went to the house of the accused but none of the accused were present. A ligature mark was seen around the neck of Kaveri and she was made to sit against the wall. Jagan states that accordingly a report at Exh.32 5 Cri.Appeal No. 85 of 2010 came to be lodged. In cross-examination he has admitted the correctness of portion marked "A" and "B" from his report. He has admitted that he had paid Rs.10,000/- to Kaveri when she had come to his house during the Diwali festival. He has admitted that he had borrowed Rs.7,000/- to Rs.8,000/- from 4 to 5 persons. He has admitted to have stated in his complaint that father-in-law and brother-in-law of Kaveri were also demanding the amount and subjecting her to cruelty. 5. P.W.2 Parmeshwar, brother of deceased Kaveri also states about the accused demanding an amount of Rs.50,000/- and P.W.1 Jagan having paid Rs.10,000/-. In cross-examination he has admitted that the deceased had disclosed to him about the demand for Rs.50,000/- after 2 to 3 months of the marriage. However, an omission has been duly proved that he had not stated in his previous statement about payment of Rs. 10,000/-. 6. P.W.3 Purushottam, uncle of deceased Kaveri also states about an amount of Rs.50,000/- being demanded for starting a shop and Kaveri being illtreated on account of failure to meet the demand. Nothing of substance has been elicited in his cross-examination. 7. P.W.4 Seema, a friend of Kaveri also states about Kaveri being illtreated on account of demand for Rs.50,000/-. She states that her statement came to be recorded after about a month of the incident. 6 Cri.Appeal No. 85 of 2010 Similarly, P.W.5 Nagorao, uncle of deceased Kaveri also states about Kaveri being illtreated on account of failure to pay Rs.50,000/-. 8. Shri Jadhav, learned Counsel for the appellant has urged before us that there is no evidence whatsoever that deceased Kaveri had died on account of strangulation and that it was the appellant who had committed murder of deceased Kaveri. Shri Jadhav further urged before us that the defence of the appellant that deceased had committed suicide was probablized by the accused. The learned Assistant Public Prosecutor has supported the findings arrived at by the Trial Court. 9. Post mortem report at Exh.52 clearly discloses that deceased Kaveri had died as a result of strangulation. The position of the ligature mark clearly indicates that Kaveri had died on account of strangulation and not on account of suicide. The Medical Officer has found the ligature mark to be running horizontally at the level of thyroid cartilage. That would clearly negate death on account of suicidal hanging. The appellant/accused in his defence, especially in his statement under section 313 of the Code of Criminal Procedure has stated that he was not present in the house on the day of the incident. However, apart from a bald statement, the appellant/accused has not led any evidence to show that he was present at the ginning factory. In other words, the appellant has failed to prove his alibi. Similarly, the appellant states that deceased Kaveri and his grand-mother were present in the house and the deceased 7 Cri.Appeal No. 85 of 2010 was annoyed on account of quarrel with the grand-mother and had committed suicide by hanging. The medical opinion clearly negates death by hanging. Moreover, the appellant has not probablized his defence that deceased had committed suicide on account of quarrel with the grand-mother of the appellant. Curiously, no evidence is led in respect of any quarrel or the deceased committing suicide out of annoyance. No explanation is given as to who brought down the body and why was the dead body of Kaveri made to sit against the wall. These are all suspicious circumstances and the appellant alone could have thrown light on these circumstances. The appellant/accused has chosen not to offer any explanation but has chosen to offer a false explanation. Curiously, there is no defence evidence nor is there any explanation about the manner in which deceased Kaveri died. Since the appellant has failed to prove his alibi, according to us, the presence of the appellant in his own house is established. Deceased Kaveri died on account of strangulation and not as a result of suicide. The appellant, therefore, has failed to explain the manner in which Kaveri has died. The chain of circumstances is so complete that it excludes every hypothesis of the innocence of the accused and points to the guilt of the accused. In such circumstances, therefore, according to us, the findings of the Trial Court in respect of the guilt of the appellant/accused for offence punishable under section 498-A and 302 of the Indian Penal Code cannot be assailed. 8 Cri.Appeal No. 85 of 2010 10. After considering the submissions advanced before us by the learned Counsel for the parties, according to us the prosecution has established the offence against the appellant/accused beyond reasonable doubt and no interference is necessary in the findings recorded by the Trial Court. Criminal Appeal No.85 of 2010 is, therefore, accordingly dismissed confirming the conviction and sentence. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria85.10