1 apeal 291 of 2008 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.291 OF 2008 Timayya Babu Naik, age: 43 years, Occn. Service, residing at: Galli No.3 Sathe Building, Chhaya Colony, Karve Nagar, Pune 411 052. .. Appellant Original accused No.2. -versus State of Maharashtra .. Respondent. Mr. D.G. Khamkar, for the Appellant. Mr. S.A. Shaikh, Additional Public Prosecutor, for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 18th July, 2011 Judgment 1. This is an appeal questioning appellant’s conviction, by the learned Additional Sessions Judge, Pune and sentence of R.I. for five years with fine of Rs.3,000/- or in default of payment of fine S.I. for three months and R. I. for two years with fine of Rs.2,000/- or in default S.I. for two months, respectively, for the offence punishable under Sections 306 and 498-A, of the Indian Penal Code, inflicted upon the appellant by the learned Judge. 2. Facts which are material for deciding this appeal are as under :- Victim Jayanti, who hailed from Udupi, Karnataka 2 apeal 291 of 2008 State, was married on 23rd January, 2005 to appellant Timayya Babu Naik, who was residing at Pune. After residing for a few days at the native place, Jayanti shifted with appellant Timayya to Timayya’s residence at Pune. Timayya was residing with his elder brother’s wife Sulochana and her two grown up children aged about more than 20 years. Timayya was possibly brought up by Sulochana and her husband Vitthal. 3. On 22nd June, 2005, Jayanti committed suicide by hanging herself to a ceiling fan inside a room in the house. Police were informed. Police opened the said room, removed the body from its hanging position and after performing inquest, sent it for postmortem examination. Police also seized a diary written in Kannada language. Entries in diary began under the date Sunday 23rd January, 2005. After postmortem examination, body was handed over to victim’s brother P.W.1 Ratnakar Naik, who took body to his native place for the cremation. After funeral and obsequies, victim’s brother returned to Pune on 4th July, 2005, saw diary written by his deceased sister which had been seized by police and after reading contents of the diary, gave report; on which an offence was registered. The Police recorded statements of witnesses and on completion of investigation, sent chargesheet to the Court of learned Judicial Magistrate First Class (AC Court), Pune, who committed the case to the Court 3 apeal 291 of 2008 of Sessions. 4. Learned Additional Sessions Judge to whom case was assigned, charged the appellant and his sister in law Sulochana of offences punishable under Sections 498-A,306 read with section 34 of the Indian Penal Code. Since both the accused pleaded not guilty to the charge framed, learned Additional Sessions Judge, put them on trial at which prosecution examined as many as six witnesses in its attempt to bring home guilt of the appellant and co-accused Sulochana. After the, statements of accused were recorded, in order to reassure herself of the correct translation of Kannada diary into Marathi, learned Additional Sessions Judge got relevant material translated by an employee of the Court, who was conversant with Kannada and was examined as P.W. 7. After considering the evidence tendered in the light of defence of false implication, learned Additional Sessions Judge, held that the charge was proved against the appellant and was proceeded to convict and sentence him as aforementioned. She acquitted the co-accused Sulochana of the charges levelled. Being aggrieved thereby the appellant is before this Court. 5. I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the entire record. 4 apeal 291 of 2008 6. P.W-1, Ratnakar Naik, is victim’s brother, who stated about victim’s marriage to appellant Timayya on 23rd January, 2005. He also stated that dowry of Rs.1,00,000/- has been paid to the appellant and 25 Tolas of gold had been given to the victim in marriage. According to him, his sister informed him after about 15 days of marriage, that the appellant was angry because gold chain was not given to him in the marriage and therefore, he was harassing her. P.W.-1 Ratnakar claims to have told his sister that the gold chain will be given at the time of Diwali. Victim’s friend Wiveth Nelson Kannellu- P.W.2, also learnt from victim from time to time that the victim was being harassed by the appellant and conveyed this information to Ratnakar. Ratnakar claims that after appellant had shifted victim to their house at Pune, victim told him on phone that the appellant was harassing her and asking her to bring gold chain and Rs.50,000/- from her parents. Ratnakar claims to have promised that he would visit Pune, but could not move because of ill-health of his mother. He claims that victim’s friend Wiveth Nelson, again narrated about the account of harassment received by her on telephone from victim. On 19th June, 2005, victim is alleged to have telephoned at the house of a neighbour Anant Acharya,who has not been examined at the trial. She asked Ratnakar as to whether Ratnakar would be coming to Pune and Ratnakar promised that he will come within 15 days. On 5 apeal 291 of 2008 the night of 22nd June, 2005, appellant informed Ratnakar that the victim had hanged herself. Thereupon he came to Pune. 7. He stated that he took dead body to his native place, performed the last rites and returned to Pune on 4th July, 2005 where police showed him the diary of his sister and then he gave a report. He identified writing of his sister in the diary which was then marked as Exhibit 20. His report is at Exhibit 21. 8. The witness was cross examined at length. Surprisingly it was sought to be suggested to him that the victim had some brain ailment and was being treated for that. This suggestion was, however, not carried to its logical end. There is nothing to show that victim was suffering from any such ailment. Witness admitted in cross examination that his other sister Pushpa had committed suicide. It seems to have been an attempt of the defence to show unsuccessfully that there was a suicidal streak in the family. 9. P.W.2-Wiweth Nilson Kannallu, the victim’s friend with whom victim confided from time to time, has stated that the victim complained of illtreatment even on 21 June, 2005 i.e. a day before victim committed suicide. Victim allegedly told her on telephone that victim was having lot of trouble. In her deposition, she did not specifically state that there was any demand of specific sum of Rs.50,000/- or gold chain. She too identified hand writing of victim and she too claimed to 6 apeal 291 of 2008 have translated contents of diary from Kannada to Hindi to police. Curiously, even cross examination of this witness reflects absence of any coherence in defence. It was suggested to the witness that the victim’s sister had run away before marriage and had married another person and had left that husband and again married some one else. How this was relevant is not clear but it clearly shows that appellant was confused about defence to be taken. 10. P.W.3 Chikayya Pujari, is a baker, who is running his business just near the police out post where offence was registered. He stated that on 5th July, 2005, he was called by the police and asked to translate Kannada contents of diary into Marathi. His translation of the contents of diary has been elaborately recorded by the learned Judge in the deposition. It was suggested to him that he did not have adequate knowledge of Kannada language and Government has not issued any certificate as translator to him and that the contents in the diary were not what he translated. 11. P.W.4 Sanjay Sathe is the landlord of appellant as well as panch to the panchnama of the spot, which is at Exhibit 15. 12. P.W.5- Police Sub Inspector Nandkishor Jangam, conducted investigation and P.W.6 Shivaji Kolpe - the Head Constable, was the first to visit spot. He performed panchnama at Exhibit 15, seized diary at Exhibit 20, on the 7 apeal 291 of 2008 night victim had hanged herself. Cross examination of P.W.6 clearly shows that there is nothing to disbelieve his claim that the diary was found in the same room in which victim had hanged herself. 13. As already indicated P.W.7, Madhavi Kaulgud, was examined by the Court to have contents of Kanada diary translated into Marathi and to ascertain the correctness of translation made by other witnesses. The translation done by this witness is not different from that of the other witnesses. 14. Learned counsel for the appellant submitted that if co-accused Sulochana was acquitted, there was no warrant for convicting the present appellant since harassment was allegedly on account of illicit intimacy of appellant with Sulochana. As the learned Judge has not chosen to rely on this allegation or complicity of Sulochana, in the illtreatment, nothing need be said about it. The contention that if one of the accused is acquitted, the other should be acquitted has to be rejected. It would be the duty of the Sessions Court to go into the evidence in respect of each of accused persons separately. In any case diary, which is the dying declaration of the victim, does not show complicity of Sulochana, in any illtreatment. Therefore, Sulochana’s acquittal does not help the present appellant. 15. Learned counsel for the appellant next submitted that the delay of about 15 days in recording First Information 8 apeal 291 of 2008 Report, has not been explained. He submitted that if the police had found the diary beside the dead body on the incidental night, they could have got diary translated then and there. In any case victim’s brother P.W.-1, Ratnakar, who had, come to Pune, must be knowing the contents of diary and should have reported the incident immediately. Therefore, according to learned counsel for the appellant, the delay in registering offence or recording of report, is fatal to the prosecution case. As rightly submitted by the learned APP, victim’s brother has stated that he took the victim’s body for funeral to their native place. Learned APP submitted that in that state of mind if victim’s brother was not immediately called upon to read diary or comment upon it, neither police nor victim’s brother could be faulted. He submitted that it is not that diary was found afterwards. It was very much seized by the police when they first entered the room, which had been latched from inside as can be seen from the panchnama at Exhibit 15. Learned APP also pointed out that the contents of this panchnama had been admitted by the appellant and therefore, there should be no occasion now to assail the recitals in the panchnama. Learned APP, therefore, submits that since diary was in possession of the police , there was no question of any story being cooked up afterwards. The victim’s story stood crystallized in the diary. After victim’s brother returned to Pune, he was made to read diary, when he 9 apeal 291 of 2008 found the allegations therein he gave a report. The police also got the diary translated from an independent sources and then offence was registered. Therefore, according to learned APP though ideally the police could have registered offence immediately delay is not at all fatal and is duly explained. The disclosure of offence was at the right point of time and therefore, the prosecution case cannot be assailed on this ground. 16. Learned counsel for the appellant next submitted that no hand writing expert has been examined and therefore, the possibility of the diary not being in the hand-writing of the victim has not been ruled out. First, as already re-counted diary was found very much in the room where victim was found hanging. Therefore, there is no question of diary being concocted and planted by any of the prosecution witnesses. Both PW.1- Ratnakar and P.W.2 Viveth who were naturally conversant with the victim’s hand writing have identified the hand-writing of the victim and stated as to what victim had to convey in the diary. Therefore, the learned Judge rightly relied on the diary though a hand writing expert was not examined. It may be seen from the contents of the diary which have been translated almost verbatim by P.W.3 Chikayya Pujari that there is nothing suspicious. 17. Learned counsel for the appellant sought to rely on the affidavit of one Hulyalkar to contend that there could be 10 apeal 291 of 2008 no question of recording in January, 2005 about events of which occurred in June, 2005. The victim began writing diary on 23rd January, 2005, on the date of victim’s marriage. Thereafter she went on recording subsequent events in the diary continuously disregarding the printed dates. Therefore, the recitals are on subsequent dates one after another such as 24nd January, 25th January etc. etc. It is not that the recitals pertain to events of those dates. Therefore, the recitals in the diary which began on 23rd January, 2005, were written possibly just before victim took the ultimate step on 22nd June, 2005. Therefore, objection to the diary were rightly rejected by the learned trial Judge. 18. Learned counsel for the appellant next submitted that there is no corroboration to the demand of Rs.50,000/- and gold chain from the contents in diary as also evidence of P.W.2 Viveth. It is just possible that the demand of specific sum of Rs.50,000/- or gold chain may be a subsequent interpolation by P.,W.1 Ratnakar, on the belief that it is necessary to have some specific allegations made. It is not necessary that those untrue statements should stain other part of evidence that Ratnakar or Viveth so as to affect it prejudicially. In any case, the victim’s diary which was found in the room where victim was found hanging, would show that she had noted the harassment and trouble for money and gold and there should be no reason to disbelieve what victim 11 apeal 291 of 2008 recorded before her death, particularly since it is corroborated by P.W.2 Viveth whom she had confided in her life time. 19. Learned counsel for the appellant submitted that a telephone call was received at the house of one Anant Acharya, who has not been examined by the prosecution. Non examination of Anant Acharya is not relevant since all that he would have stated that telephone call was received at his house by P. W.-1 Ratnakar. Even if all these discrepancies as learned counsel for the appellant would want me to rely, are accepted, still they do not nullify the evidence left behind by the victim in the form of diary where she categorically nails the appellant for his harassment and illtreatment to her on account of unlawful demands. 20. In view of this it cannot be said that the learned Judge erred in concluding the complicity of appellant in the offences punishable under Section 306, 498-A of the Indian Penal Code was duly proved. Learned trial Judge has been more lenient in awarding sentence of only five years of imprisonment for the offence punishable under Section 306 of the Indian Penal Code and 2 years imprisonment of for the offence punishable under Section 498-A of the Indian Penal Code which do not warrant any interference. In view of this the appeal is dismissed. (R. C. CHAVAN, J.)