AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1289 OF 2003 1. Narsing Motisa Arshid, Convict No.C-12749, Yeravada Central Prison, Pune – 411 006. ) ) ) 2. Shantabai Motisa Arshid, Yeravada Central Female Prison, Pune – 411 006. ) ) ) ... Appellants Versus The State of Maharashtra. ) ... Respondents Mr. Abhaykumar Apte, appointed advocate for the appellants. Mr. Rajesh More, A.P.P. for respondent-State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 8TH JULY, 2010. DATE ON WHICH THE ORDER IS PRONOUNCED: 5TH AUGUST, 2010. JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. The appellants are original accused 1 and 2 respectively in Sessions Case No.241 of 2001, which was AJN 2 tried by the Court of Sessions, Solapur. The appellants were tried along with one Motisa Chintamani Arshid – original accused 3 i.e. the father of original accused 1 and the husband of original accused 2. He died as an under- trial prisoner during the pendency of the case and, hence, the case abated as against him. The case, therefore, proceeded only against the appellants – original accused 1 and 2 respectively. For the sake of convenience, we shall refer to the accused as per their status in the trial. 2. By the impugned judgment and order, accused 1 was convicted for offence punishable under Section 302 of the IPC and was sentenced to suffer RI for life and to pay a fine of Rs.1,000/-, in default, to suffer further RI for three months. Accused 1 was also convicted for offence punishable under Section 498-A of the IPC and was sentenced to suffer RI for three years and to pay a fine of Rs.1,000/-, in default, to suffer further RI for three months. Accused 2 was convicted for offence punishable under Section 302 read with Section 114 of the IPC and AJN 3 was sentenced to suffer RI for life and to pay a fine of Rs. 1,000/-, in default, to suffer further RI for three months. Accused 2 was also convicted for offence punishable under Section 498-A of the IPC and was sentenced to suffer RI for three years and to pay a fine of Rs.1,000/-, in default, to suffer further RI for three months. The substantive sentences were ordered to run concurrently. Being aggrieved by the said judgment and order, accused 1 and 2 have preferred this appeal. 3. It is necessary to begin with two complaints (Ex-20 and Ex-23) and FIR (Ex-22) which led to the investigation of the case. On 10/5/2001, 20 to 25 persons residing in the vicinity of the house of the accused made an application to the Police Inspector, Jail Road Police Station, Solapur, stating that deceased Prabhavati, wife of accused 1 was subjected to cruelty by accused 1 and members of his family. It was further stated in the application that the AJN 4 neighbours tried to mediate in the matter on a number of occasions, but they did not succeed in their efforts and, therefore, they had lodged a complaint in the Sakhar Peth Police Station due to which, the accused were prosecuted and sentenced for one year's imprisonment. Thereafter, as the deceased was missing her children, she wanted to go back to her matrimonial home, she made an application to the panchas. The panchas warned the accused and sent the deceased back to her matrimonial home. For a few days, the deceased was treated well. However, after some days, she was again subjected to mental and physical cruelty due to which, she died on 9/4/2001. It was prayed in the application that necessary inquiry be conducted and action may be taken in accordance with law against the accused. This complaint is on record at Ex-20. 4. On the same day, PW-2 Subhash made an application to the Police Inspector, Jail Road Police Station, Solapur stating the same facts and making the same allegations. AJN 5 It was stated in the complaint that after the deceased was sent to her matrimonial house by the panchas, the accused fabricated documents of divorce and took signatures of the deceased thereon forcibly and sent her to Gulbarga. Thereafter, the panchas again intervened in the matter, but the accused insulted them and refused to maintain the deceased. Again, neighbours and the panchas took out a morcha to PI Chavan of the Jail Road Police Station. PI Chavan warned the accused and asked them to maintain the deceased properly. Bonds were executed by the accused before the police promising to treat the deceased well. PW-2 Subhash then sent the deceased to her matrimonial house. On 9/5/2001, he received a phone call from Solapur that her sister Prabhavati was dead. He was instructed by the panchas to lodge a complaint at the police station. Accordingly, after the last rites of the deceased were over, a complaint was filed by him against all the accused. He prayed in the complaint that necessary inquiry be conducted in respect of the death of Prabhavati and action be taken against the AJN 6 accused. This complaint is at Ex-23. 5. On 11/5/2001, while the two applications (Ex-20 and Ex-23) were being investigated, PW-2 Subhash lodged FIR, which is marked as Ex-22. In the FIR, PW-2 Subhash narrated the details of the ill-treatment meted out to the deceased by the accused, which he had narrated in his application (Ex-23). He gave the details of previous conviction and sentence of the accused for offence under Section 498-A of the IPC. He stated how the deceased went back to the house of the accused and how she was ill-treated. According to him, on 9/5/2001, he received a call from Solapur that his sister Prabhavati was dead. He visited the Civil Hospital, Solapur along with the members of his family. According to him, the doctor told him that Prabhavati succumbed to the injuries sustained by her on her head. PW-2 Subhash stated that PW-1 Jayashree, the neighbour of the deceased told him how the deceased was being ill-treated by the accused. PW-1 Jayashree told him that on 8/5/2001 between 8.00 and 8.30 a.m., AJN 7 accused 1 was beating the deceased. He dashed the head of the deceased against a wall. At 3.00 p.m. in the afternoon, accused 1 dumped the deceased in a rickshaw like a jawar bag. He had covered her head with a saree. PW-1 Jayashree further told him that she got to know later on that the deceased was shifted to the Civil Hospital, Solapur. PW-2 Subhash stated that accused 1 banged the head of the deceased on a wall in the presence of accused 2 and accused 3 (since deceased). The deceased received internal injury to the head due to which she died and, therefore, the accused had committed her murder. On the basis of this FIR, investigation was conducted and, after completion of investigation, the accused came to be charged as aforesaid. 6. In support of its case, the prosecution examined as many as five witnesses. Apart from PW-1 Jayashree and PW-2 Subhash, the prosecution examined PW-3 Vandana, the sister-in-law of accused 1, PW-4 PSI Ashok Kulkarni, the Investigating Officer and PW-5 Dr. Patil, who had done AJN 8 postmortem on the deceased. The defence of the accused was one of denial. After perusing the evidence on record, learned Sessions Judge convicted accused 1 and 2 as aforesaid and, hence, this appeal. 7. PW-5 Dr. Patil, who did the postmortem on the deceased has brought the postmortem notes on record at Ex-17. Dr. Patil found the following external injury on the deceased. “(a) Blackish discolouration of skin swelling at lt. Zygomatic region of size 2 x 1”. Dr. Patil found the following internal injury on the deceased. “(a) Haematoma and about 100 mg reddis watery collection of fluid below scalp at Rt. frontaoparia al region. There was facure of skull at right fronto partitial region leniar and crack type of 1 inch. Brain was congested and oedemation. There was subdural haematoma present at Rt. fronto partial and occipital region”. AJN 9 8. Dr. Patil stated that the injuries suffered by the deceased were ante-mortem and were sufficient in the ordinary course of nature to cause her death. According to him, the cause of death was fracture of scull. Dr. Patil stated that the head injury suffered by the deceased was possible if the head of a women is forcibly dashed against a wall. Dr. Patil has been cross-examined. However, the defence has not been able to elicit anything in the cross- examination which can adversely affect the prosecution case. 9. PW-2 Subhash, brother of the deceased has given details of the previous complaint filed by the deceased against the accused and the conviction and sentence of the accused. This part of the prosecution being matter of record cannot be questioned. In our opinion, the fact that the accused were convicted for having caused cruelty to the deceased furnishes necessary motive for the offence in question. According to PW-2 Subhash, on 9/5/2001, he AJN 10 received a message on telephone from pancha Mr. Chavan that his sister Prabhavati was dead. He along with his aunt Shobhabai and uncle Chandulal went to the Civil Hospital, Solapur and found the dead body of the deceased. He brought the dead body of the deceased to Somawar Peth. He found injury on the head of the deceased. He has stated that PW-1 Jayashree, who was staying opposite the house of the accused told him that accused 1 dashed the head of the deceased on the wall and, therefore, she sustained head injury. According to him, on getting to know this, he filed complaint (Ex-22) in the police station. PW-2 Subhash has been cross- examined. He has denied the suggestion that the deceased fell down from the wooden staircase and sustained head injury. He has admitted that in the application (Ex-23) made to the police praying that an inquiry be instituted about the death of his sister Prabhavati, he had not stated that accused 1 dashed the head of the deceased on wall. In our opinion, this is not relevant because PW-2 Subhash had sought an inquiry AJN 11 into the death of his sister. It was not necessary for him to state in the complaint what he got to know from PW-1 Jayashree because PW-2 Subhash expected the cause of death to come to light in the inquiry. PW-2 Subhash's evidence inspires confidence. We have no hesitation in placing reliance on him. 10. PW-1 Jayashree stays in the house which is in front of the house of the accused. She has stated that there is an iron net on the first floor of the house of the accused and from her house, persons working in the house of the accused are visible. She has stated that the accused used to ask the deceased to bring dowry and ornaments from her parents' house and they used to beat her. According to her, she used to see the incidents of beating from her house. She has further stated that the accused did not provide food to the deceased. She has given the details of the ill-treatment meted out to the deceased. She has stated that two to three years back, she had taken the deceased to Sakhar Peth Police Station to lodge a AJN 12 complaint. A complaint was lodged and the accused were sentenced to imprisonment for an offence punishable under Section 498-A of the IPC. PW-1 Jayashree has further stated that the deceased returned to the house of the accused because of a compromise. Thereafter, the accused again started beating the deceased. They used to tell her that she was affected by AIDS. They used to abuse her. PW-1 Jayashree has claimed that she had seen the incident in question. According to her, she was sitting on the katta in front of her house. She saw accused 1 dashing the head of the deceased on the wall. According to her, at about 3.00 p.m., accused 1 brought one rickshaw in front of his house. He brought the deceased from his house like a jawar bag and threw her in the rickshaw and took her to the hospital. According to her, she later on learnt that Prabhavati was dead. 11. PW-1 Jayashree has been cross-examined at length. It was pointed out by learned counsel Mr. Apte that in the cross-examination, PW-1 Jayashree has stated that the AJN 13 things going on in the room on the ground floor and the room on the first floor of the house of the accused are not visible from her house. She has further stated that the hall and the open space near the iron net are not visible from her varanda. It was argued that these statements made by PW-1 Jayashree disprove her claim that she had seen the incident in question. Assuming that PW-1 Jayashree has not seen the actual incident of accused 1 dashing the head of the deceased against the wall, she has clearly stated that accused 1 brought down the deceased like a jawar bag and put her in a rickshaw and took her to the hospital. There is no challenge to this statement made by PW-1 Jayashree. PW-1 Jayashree has established the presence of the accused in the house. The fact that the deceased received head injury in the house of the accused and accused 1 was present in the house at that time is relevant. PW-1 Jayashree's evidence is, therefore, of great relevance to the prosecution case. Accused 1's bringing down the deceased with her head covered in a saree and putting her in a rickshaw like a AJN 14 jawar bag speaks volumes. This needs to be examined against the background of the fact that the accused were convicted for offence punishable under Section 498-A of the IPC for having caused cruelty to the deceased. PW-1 Jayashree has spoken about this case and, has given the details of the cruelty meted out to the deceased by the accused. PW-1 Jayashree appears to be a person who knew the accused and the deceased. She appears to have witnessed the incidents of cruelty and ill-treatment meted out to the deceased over the years. She comes out as a honest witness, who has fearlessly deposed against the accused though she was their neighbour. We see no reason to disbelieve her. 12. PW-3 Vandana is the sister-in-law of accused 1. She has admitted that the accused were earlier prosecuted and convicted for subjecting the deceased to cruelty. She has submitted that after compromise, the deceased again came back to the matrimonial house. She has submitted that the accused used to starve the deceased and that AJN 15 they used to beat her. She has stated that on 8/5/2001, all the accused were at home. Accused 2 was instigating accused 1 to kill the deceased. According to her, accused 1 dashed the head of the deceased against the wall. The deceased held her head and sat down. No medical treatment was given to her. PW-3 Vandana has further stated that the room where the deceased was lying was closed by the accused. At about 3.00 p.m., accused 1 brought the deceased down and kept her in a rickshaw. Her face was covered with a saree. Accused 1 told everyone that he was taking the deceased to the hospital. According to PW-3 Vandana, she learnt at 6.00 p.m, that the deceased was dead. Evidence of this witness is important. She was residing in the same house. She is related to the accused. Her evidence is important because she has deposed against her relatives. Unless the incident was true, she would not have falsely implicated her relatives in an offence of murder. An omission is brought on record that in her statement before the police, she has not stated that on hearing the noise of AJN 16 quarrel between the accused and the deceased, she went upstairs. This is not a material omission. As regards the actual incident, she is consistent and no omission is brought on record in respect thereof. The evidence of PW-3 Vandana establishes that accused 1 dashed the head of the deceased against the wall. 13. PW-4 is the Investigating Officer PSI Ashok Kulkarni, who has given details of the investigation conducted by him. He has denied the suggestion that he has fabricated false evidence against the accused. 14. Having perused the prosecution evidence, we are of the considered opinion that the prosecution has proved beyond doubt that it is accused 1 who dashed the head of the deceased against the wall due to which she suffered head injury and died. The prosecution has also proved that the accused subjected the deceased to cruelty. The case of the accused that the deceased received head injury when she fell from the wooden staircase is not AJN 17 substantiated. In our opinion, the conviction and sentence of the accused is perfectly justified. There is no merit in the appeal. The appeal is dismissed. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]