1 cri appeal 68.99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 68 OF 1999 1. Angad S/o Rajendra Mane, Age : 30 Years, Occu. : Agril., R/o Gaudgaon, Tq. & Dist. Osmanabad. 2. Rajendra S/o Ganpat Mane, Age : 53 Years, Occu. : Agril., R/o As above. 3. Malanbai W/o Rajendra Mane, Age : 48 Years, Occu. : Agril., R/o As above. .. .. APPELLANTS (Orig. Accused Nos. 1, 2 and 6) VERSUS The State of Maharashtra .. .. RESPONDENT (Orig. Complainant) (Copy served on A.P.P. High of Bombay Bench at Aurangabad) Smt. Sadhana S. Jadhav, Advocate h/f Shri B. R. Sontakke Patil, Advocate for Appellants. Shri S. G. Nandedkar, A.P.P. for the Respondent/State. CORAM : S. S. SHINDE, J. 2 cri appeal 68.99 RESERVED FOR JUDGMENT : 11.01.2011 JUDGMENT PRONOUNCED :14.01.2011 JUDGMENT : . This appeal is filed challenging the judgment and order dated 12.02.1999 passed by the IInd Additional Sessions Judge, Osmanabad in Sessions Case No. 110/1995, thereby convicting the appellant Nos. 1 to 3 for the offence punishable U/Sec. 498-A, of the I. P. Code and further convicting the appellant No. 1 for the offence punishable U/Sec. 304-II of the I. P. Code. 2. Brief facts of the prosecution case are as under : Deceased Chabu was the daughter of the complainant Vinayak Argade r/o Katri, Tq. Tuljapur. Her marriage was performed with accused No. 1 Angad four years before the incident. She cohabited with him at village Gaudgaon, Tq. Osmanabad in the house of accused No. 1 Angad where the accused Nos. 2 to 6 were also residing. The accused No. 2 Rajendra and the accused No. 6 Malan are the parents of the accused No. 1 Angad, while the accused No. 3/Lahu, accused No. 4/Nandu and accused No. 5/Ankush are his brothers. The matrimony of the deceased Chabu was peaceful for initial 2½ years. During this period she begotten a son from accused No. 1 3 cri appeal 68.99 Angad. Thereafter, the accused persons started illtreating the deceased Chabu for the demand of half tola gold, cloths in token of karni-dharni. They also wanted that her father should arrange a programme of Ghar-Ghusni and to honour them by offering cloths. Deceased Chabu disclosed this fact to her parents. Therefore, at the time of panchami of the last year of her death the complainant arranged such programme and offered cloths to the accused persons by calling them to his village. He also offered them half tola gold ring. Thereafter also deceased Chabu disclosed him about ill-treatment for the reason of karni – dharni. She disclosed that accused again wanted half tola gold, cloths etc. and they were assaulting her for that reason. She also disclosed that accused did not provide her food, coconut oil, soap and other things of daily need. At the time of panchami 1994 the complainant brought deceased Chabu to his house and she disclosed him that accused persons demanded half tola gold ring and threatened that if she did not bring it, it would be difficult for her to live. The complainant convinced her and sent for cohabitation. 3. On 13.10.1994 at about 2.30 p.m. the accused No. 2 Rajendra went to complainant’s house and told that she was not 4 cri appeal 68.99 feeling well. The complainant went to Gaudgaon at about 5.00 p.m. to see the deceased Chabu and saw that she was rolling in the cattle shed due to pains and not able to speak. The complainant asked the accused as to why she was not taken to hospital but they pretended that the hospital was closed. Then complainant started taking her to the hospital in the bullock cart but she expired on the way. The complainant sent her dead body to Gaudgaon and he himself went away to Katri for collecting his kinsmen. He returned to Gaudgaon in the evening. Thereafter, he lodged complaint in the police station (Exhibit 39). Crime No. 105/1994 was registered and PSI Mukeri started the investigation. 4. He went on the spot and prepared panchanama (Exh. 41). Then he prepared inquest panchanama of the dead body of deceased Chabu (Exh. 44) and sent it for post-mortem. The post- mortem was conducted by medical Officer Dr. Vyavahare on 14.10.1994 (Exh. 36). The viscera was preserved and it was sent to the Chemical Analyser for analysis. PSI Mukeri seized the cloths of the deceased after post-mortem (Exh. 42). He recorded the statements of the witnesses from time to time. He received C.A. report (Exh. 49). He arrested the accused Nos. 1 to 5 on 5 cri appeal 68.99 14.10.1994 and accused No. 6 on 25.10.1994. After completing the investigation he submitted the charge sheet against the accused in the court of the Chief Judicial Magistrate, Osmanabad on 25.05.1995 which was numbered as R.C.C. No. 211/1995. 5. The offence U/Sec. 306, 304-B of I. P. Code was exclusively triable by the court of Sessions, hence the learned Chief Judicial Magistrate committed the case of the accused to the Court of Sessions vide order below Exhibit 1 in R.C.C. NO. 211/1995 passed under section 209 of Cr. P. C. After committal of the case to this Court and on the basis of the application moved by the learned APP (Exh. 33), the learned Trial Court framed charge against the accused Nos. 1 to 6 U/Sec. 498-A, 306, 304-B and alternatively U/Sec. 302 r/w Sec. 34 of the Indian Penal Code vide Exhibit 21. It was read over and explained to the accused in vernacular, to which they pleaded not guilty vide Exhibits 22 to 27. They have taken the defence of total denial. According to them they never ill-treated deceased Chabu nor demanded anything from her. They contended that on the date of incident she was suffering pains in her abdomen and therefore she was rolling on hard ground. According to them she herself dashed her person on the hard and rough ground thereby she sustained 6 cri appeal 68.99 injury to her abdomen. They have also contended that they were taking her to the hospital but she expired on the way. Lastly they claimed that her death was accidental and they are not responsible for the same. 6. The learned IInd Additional Sessions Judge, Osmanabad after framing necessary points for determination and after recording the evidence and after hearing rival submissions, convicted the accused No. 1/Angad Rajendra Mane, accused No. 2/Rajendra Ganpat Mane and accused No. 6 Malanbai W/o Rajendra Mane wive of accused No. 2 for the offences punishable U/Sec. 498-A r/w Sec. 34 of the Indian Penal Code and each of them were sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 1,000/- in default R.I. for two months under Section 498-A of the Indian Penal Code. The accused No. 1 was further convicted of the offence punishable U/Sec. 304-II of the Indian Penal Code U/Sec. 235 of the Cr. P. C. He was sentenced to suffer R.I. for five years and to pay fine of Rs. 3,000/- in default R.I. for three months under Sec. 304-II of the I. P. Code. 7. However, the Trial Court acquitted the accused Nos. 3 to 5 7 cri appeal 68.99 for the offences punishable U/Sec. 498-A of the Indian Penal Code and all the accused Nos. 1 to 6 are acquitted for the offences punishable U/Sec. 306, 304/B, 302 r/w Sec. 34 of the Indian Penal Code. 8. Being aggrieved by the impugned judgment and order passed by the IInd Additional Sessions Judge, Osmanabad, the appellants herein have preferred this appeal. During the pendency of this appeal, the appellant No. 2/Rajendra Ganpat Mane died on 22nd November, 2007 and to that effect certificate from the Gram Panchayat Office Gaudgaon, Dist. Osmanabad has been placed on record. The said position is not disputed by either of the parties. Therefore, so far present appeal to the extent of appellant No. 2 stands abated. 9. The counsel appearing for the appellant relying on written submission argued that, in view of the medical evidence i. e. the deposition of P.W. 1, and the communication, Exh. 37, there is no positive, cogent and convincing evidence to conclude that Chhabubai has died a homicidal death. The P.W. -5 the Investigating Officer, Rasul Mukeri has categorically stated that, "It was not transpired in the investigation that deceased was 8 cri appeal 68.99 assaulted before her death". That, the Investigating Officer has not recorded the statement of the neighbours. Hence, there is no evidence to show that the appellant No. 1, had assaulted the deceased. Hence the conviction recorded U/Sec. 304-II, has resulted into grave miscarriage of justice. 10. The counsel appearing for the appellants further submitted that, on the point of allegations U/Sec. 498-A, it needs to be appreciated that the allegations were against six persons. The allegations are omnibus in nature. According to P.W.-3 Lochanbai mother of deceased it is alleged that, "that the accused Nos. 2 to 6 were instigating accused No. 1 to assault the deceased". Therefore, the case of the accused Nos. 2 to 6 should have been dealt in the same manner. Original accused Nos. 3, 4 and 5 have been acquitted and, therefore, the accused No. 6 i. e. appellant No. 3/Malanbai also deserves to be acquitted of the said charge. No specific role has been attributed to her. P.W.-2 also has made an omnibus allegations that the accused No. 1, and his parents were harassing her. The nature of harassment has not been stated by either P.W.-2 or P.W.-3 and, therefore, the conviction U/Sec. 498-A of I. P. Code is unsustainable in the eyes of law. 9 cri appeal 68.99 11. The learned counsel appearing for appellants further submitted that, harassment as contemplated U/Sec. 498-A of I. P. Code is harassment with a view to coerce a woman to meet any unlawful demand for any property or valuable security, or on account of failure by her to meet such demand. That the accused are acquitted of charge U/Sec. 304-B and Section 306 of I. P. C. In the event of the motive for harassment being eliminated then there remains no reason for harassing Chhabubai. The prosecution witnesses have not assigned any other reason for harassment. Therefore, the appellant No. 3, deserves to be acquitted of the charge U/Sec. 498-A of the I. P. Code. She further submitted that, five months prior to the death of Chhabubai there was no communication between her parents and Chhabubai. P.W.-2 has stated that 8 to 15 days after Panchami, he had offerred cloths to the accused and thereafter Chhabubai had not come to her parents house. P.W.-2 has stated that 4 to 8 days prior to Panchami, they visited her house and not thereafter. It is stated that P.W.-2, was annoyed because of death of Chabubai. Hence prosecution has failed to prove the offences with which they are charged. 12. The counsel appearing for appellants further submitted 10 cri appeal 68.99 that, assuming that Chhabubai was assaulted, it can only be said that the assault is one which is covered U/Sec. 319 of I. P. C., and no knowledge can be attributed to the accused of causing death, and therefore, the offence would fall U/Sec. 323 of I. P. Code, where the punishment may extent to 1 year, or with fine which may extent to Rs. 1,000/-. In the absence of positive evidence, it cannot be assumed that Chhabubai was assaulted or ill-treated. She had not so disclosed to her father just before her death either by words or by gesture. The counsel appearing for appellants, therefore, prayed for allowing the appeal. 13. The learned Additional Public Prosecutor invited my attention to the contents of the complaint and also deposition of the complainant and his wife and also the deposition of other witnesses including the medical officer. The learned Additional Public Prosecutor submitted that, the act of the appellants/accused has been stated by the complainant which is supported by his wife and there is convincing medical evidence which leads to only conclusion that the appellants are responsible for the death of the deceased. The learned Assistant Public Prosecutor invited my attention to the judgment and order of the Sessions Court and submitted that, each and every aspect 11 cri appeal 68.99 has been considered by the Trial Court and reasonable and possible view has been taken. Therefore, no interference is warranted in the appeal. 14. I have given due consideration to the arguments advanced by the learned counsel for the parties. I have also perused the evidence made available. Since the Trial Court has elaborately dealt with all the aspects of the matter, I feel it appropriate not to repeate the findings recorded by the Sessions Court. The first contention of the appellants that, there is no positive, cogent and convincing evidence to conclude that, Chhabubai died a homicidal death is required to be rejected in the light of the medical evidence. The evidence of the medical officer Dr. Vyavahare shows that he conducted post-mortem on the dead body of the deceased on 14.10.1994 and he found following injuries on the person of the deceased. 1. Abrasion above suprasternal notch oblique of size 1 c 1/4 cm. 2. Abrasion left neck lateral to Thoyroid cartilage, oblique of size 3 x 1/4 cm. 3. Abrasion on left cheek of size 2 x 1/2 cm. 12 cri appeal 68.99 4. Abrasion left neck laterally, horizontal size 3 x 1/2 cm. 5. Contusion left hypogastic region of size 7 x 4 cm. bluish coloured. 6. Contusion Rt. hypogastic region of size 6 x 4 cm. bluish coloured. 7. Contusion Rt. thigh at superio medical part (lateral to vagina) of size 3 x 3 cms bluish coloured. 8. Contusion mid part of right thigh, medially of size 3 x 1 cm. bluish coloured. 9. Contusion mid part of left calf, medially of size 3 x 1 cm. bluish coloured, oblique. 10. Contusion left thigh just above knee joint, posteriorly of size 3 x 3 cms, bluish coloured. 11. Contusion posteriorly to left thigh, above injury no. 10 horizontal of size 7 x 1 cm. bluish coloured. 15. He has opined that all these injuries were anti-mortem and injuries 1 to 4 are possible if a person is hustling. While injuries 5 and 6 are possible by means of kick or fist blows and injuries 7 to 11 are possible by means of any hard and blunt object. The Sessions Court has elaborately discussed the evidence of medical officer in para 10 and 11 and arrived to the conclusion that, the 13 cri appeal 68.99 injuries sustained by the deceased Chhabubai were homicidal injuries and as a consequence her small instatine was damaged and resulted in her death. The defence which was taken by the appellants was that the injuries sustained by the deceased Chhabubai to her intestine were accidental and were not homicidal. It was suggested to Dr. Vyavhare, Medical Officer during the cross examination that injuries 1 to 11 are possible by multiple fall on hard and rough surface. However, the medical officer has nowhere admitted that these injuries are possible by rolling on hard ground. The Sessions Court has dealt with this aspect in para 11 of the judgment and reached to conclusion in para 12 that the defence theory itself is improbable and it is nothing but a after thought creation. The Sessions Court has recorded that, the contention of the appellant/accused that while rolling on the ground, deceased Chhabubai was dashing her intestinal portion of body against the ground and, therefore, she sustained the injuries. The Sessions Court has given due consideration to the said submissions of the defence and has observed in para 12 that if Chhabubai was really rolling then, there ought to have been injuries to her back side also. The medical evidence suggest 14 cri appeal 68.99 injuries are only on the front part of body. Therefore, theory of rolling as suggested by the defence is not believable, nor it is believable that, deceased Chhabubai sustained injuries to her intestine in such a manner and, therefore, the injuries sustained by the deceased Chabu were homicidal injuries. (emphasis supplied). Prosecution witness No. 4 Kamalbai whose evidence is at Exhibit 43 and who was witness to the inquest panchanama stated in her evidence before the Court that, the dead body was seen by her, there were scratch marks around neck, chest, calf and waist and knee. They were marks of beating. Panchnama bears my signature and its contents are correct and it is at Exhibit 44. 16. It has come in the evidence of complainant and also wife of the complainant i. e. mother of the deceased that the accused ill- treated deceased Chhabubai, because she did not bring a wring of one tola gold, but brought a ring of only half tola gold. On perusal of evidence of the prosecution witnesses it becomes clear that half tola gold ring was already given by the parents of the deceased. However, accused were insisting remaining half tola 15 cri appeal 68.99 gold and, therefore, there are such recitals in the complaint. The complainant and his wife Lochanabai were cross examined at length on the relevant point, but nothing could be brought on record to disbelieve their testimony. P.W. 2 and P.W. 3 have stated in their deposition that the accused No. 1/Angad use to assault the Chhabu i. e. deceased. It has also come in the evidence of these witnesses that the complainant/P.W. 2 use to visit house of accused to meet his daughter once in a week. Though it has not come on record the distance between village of the complainant and accused persons, the counsel appearing for the parties have stated that the distance between two villages is 15 to 20 K.Ms. P.W. 3 has also stated in her deposition that, "she use to send complainant/her husband to see Chhabu once in a week for fortnight. She has stated in her evidence that since there was frequent ill-treatment by the husband and, therefore, she use to sent complainant/her husband to the house of Chhabu once in a week." 17. In the present case, there are admitted facts and from these admitted facts, it can be safely gathered that the version of the prosecution witnesses and more particularly complainant and 16 cri appeal 68.99 his wife is trustworthy. It is not in dispute that all the accused who are tried were staying together. It is also not in dispute that the matrimonial live of the deceased Chhabu was peaceful for initial two and half years. This has been stated by the complainant and his wife and during this period she begotten a son from accused/appellant No. 1 Angad. Thereafter, the accused persons started ill-treating the deceased Chhabu for demand of gold, cloths in token of karni-dharni. They also wanted that her father should arrange a programme of Ghar-Ghusni and to honour them by offering cloths and this fact was disclosed by deceased to her parents. Therefore, at the time of panchami of the last year of her death, complainant arranged such programme and offered cloths to the accused persons by calling them to his village. He has also offered them half tola gold ring. Thereafter, also deceased Chhabubai disclosed complainant about ill-treatment for the reason of karni - dharni. She disclosed that accused again wanted half tola gold, cloths, etc. and they are assaulting her for that reason. On perusal of evidence of complainant and his wife, their evidence appears to be fully trustworthy. Since, they are the villagers, if at all there are any minor contradictions and omission, in the light of overwhelming evidence brought on record by the prosecution and 17 cri appeal 68.99 more particularly medical evidence and spot panchanama at Exhibit - 41, in my opinion, the judgment and order of the Trial Court so far accused No. 1 Angad is concerned needs no interference. 18. It is not in dispute that, at the relevant time, the deceased Chhabu was in the house of accused at his village, as it is evident from the spot panchanama Exhibit - 41. Therefore, taking into consideration evidence of the complainant and his wife and the injuries noticed by the P.W. 4 at the time of inquest panchanama and more importantly the medical evidence, there is no manner of doubt that the incident in question has taken place at the place of the accused/appellants. According to the medical officer injury No. 5 and 6 was fatal and ultimately resulted into death of the deceased Chhabubai. The important point which is required to be noted is that, there was no attempt on the part of the appellants to take Chhabu to the hospital. The inference drawn by the Sessions Court for not taking Chhabu to the hospital by the appellants/accused is required to be confirmed. The reason which is given by the appellants/accused not to take the Chhabu to the hospital is that the day on which incident took place being Sunday, the Government Hospital was closed. Such contention of 18 cri appeal 68.99 the appellants is only liable to be rejected as observed by the Trial Court. They should have taken the deceased to the private hospital. The father of the deceased was required to take her in bullock cart, however, on the way the deceased died. The conduct of the family members of the appellants not to take Chhabu to the hospital that itself is the strong circumstance which goes against the accused/appellants. The appellants in their statement which was recorded U/Sec. 313 of the Cr. P. C. in reply to question No. 8 and 11 have replied thus : Q. 8 It has come in the evidence that complainant asked you as to why she was not taken to the hospital but you replied that hospital was close therefore he started taking her to the hospital in bullock-cart but she expired on the way. What you have to say about it ? Ans. It is true. Q. 11.It has come in the evidence that PSI Mukeri prepared panchanama of the spot on 14.10.1994 as per Exhibit 41 as well as inquest panchanama as per Exhibit 44. What you have to say ? Ans : It is true. 19 cri appeal 68.99 Therefore, the prosecution has proved beyond doubt that the incident in question had taken place at the place of accused persons. The prosecution has further proved beyond doubt that there was no attempt on the part of the appellants/accused to take the deceased Chhabu to hospital. 19. So far conviction of the accused/appellant No. 3 for offence U/Sec. 498-A is concerned, in my opinion, the prosecution evidence is not sufficient to sustain the said conviction. The gold ring of half tola was given to the husband and whole prosecution story is that the accused wanted ring of one tola. Certainly the said ring was only for the husband and not to child or the parents. Therefore, the evidence which is brought on record indicates that beating or assaulting is by the husband as it is evident from the injuries sustained by Chhabu, there are as many as 11 injuries which are noticed by the medical officer. The golden ring was only useful for the husband. As stated earlier the evidence of complainant and his wife, medical evidence and evidence of P.W. 4 unequivocally indicates that the accused Angad is responsible for the offences alleged. It is true that the parents of the accused Angad ought to have taken care of the deceased Chhabu and they are also to some extent responsible 20 cri appeal 68.99 for not taking to her hospital and also for other certain things, which are attributed by the prosecution to them. However, on the whole evidence falls short to sustain the conviction of appellant No. 3. The Sessions Court has observed that, there is evidence to show that accused