(-1-) MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPEAL NO.28 OF 2006 1.Satish @ Satyajeet Pandurang ) Patil, Age about 28 years, ) Occupation Doctor. ) 2.Pandurang Jotiba Patil, ) Age about 50 years, Occ. ) Service, ) Both R/o.Nagardale, Taluka ) Chandgad, Dist. Kolhapur. ) (At present in Kalamba Central) Prison, Kolhapur.) )..APPELLANTS )(ORI.ACCUSED) Versus The State of Maharashtra ) (Notice to be served upon A.P.P.) High Court, Appellate Side, ) Bombay. )..RESPONDENT Shri S.P. Kadam, with Mr. V.V. Purwant, for the Appellant. Smt. M.M. Deshmukh, APP for State. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. (-2-) DATED: 4th July, 2008 DATED: 4th July, 2008 DATED: 4th July, 2008 JUDGMENT (PER F.I. REBELLO, J.): JUDGMENT (PER F.I. REBELLO, J.): JUDGMENT (PER F.I. REBELLO, J.): . The Appellants, father and son are in Appeal against the judgment and order dated 31st December, 2005 in Sessions Case No.3 of 2005. The charge as framed against both the Appellants was that on 1st November, 2004 they committed murder of Ranjana, wife of Appellant No.1 and daughter in law of Appellant No.2 in furtherance of their common intention. A charge was also framed for the offence under Section 498-A of the Indian Penal Code, both read with Section 34 of the I.P.C. They have been convicted for the offence punishable under Section 498-A of the Indian Panel Code read with Section 34 of the I.P.C. and sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/- each. In default of payment of fine the concerned accused are to undergo rigorous imprisonment for three months. Both the accused have also been convicted of the offence punishable under Section 302 of the I.P.C. read with Section 34 of the I.P.C. and sentenced to life imprisonment and to pay a fine of Rs.1,000/- each and in the event of failure to pay fine to undergo imprisonment for three months. Both the sentences are to run concurrently. (-3-) . The record shows that the accused were arrested on 2nd November, 2004 and were released on 31st December, 2004. During the pendency of the Appeal the bail application of Accused No.1 Satyajeet Patil was rejected. The Accused No.2 was released on bail on the same terms as during the trial on furnishing bond. 2. At the time of the hearing on behalf of the Appellants their learned Counsel submits that the case is purely based on circumstantial evidence. The cause of death is suicide and not homicidal. The learned Sessions Judge did not correctly address himself to the evidence on record more importantly the medical evidence. The evidence of P.W.3 Dr. Suhas Sharadchandra Sane, who had conducted the Post Mortem coupled with medical commentaries would clearly indicate that it was a case of hanging and not strangulation. Even otherwise the prosecution has not established considering this is a case of circumstantial evidence the chain of events showing the guilt of the accused beyond reasonable doubt nor established common intention. In so far as the findings under Section 498A are concerned, there is no merit whatsoever as there is no evidence and consequently the finding and consequent conviction and sentence on that count will also have to be set (-4-) aside. 3. On behalf of the State, the learned A.P.P., submits that though this is a case of circumstantial evidence, the prosecution has been able to establish the chain of circumstances which unequivocally points to the guilt of the Appellants and common intention. In these circumstances it is submitted that the findings of the learned Sessions Court ought to be confirmed. In so far as Section 498-A, the prosecution has been able to establish demand for money as dowry. Hence the conviction on that count also should be confirmed. 4. The Appellant No.1 before us is a Doctor. Appellant No.2 is a teacher. The prosecution in support of their case have examined 12 witnesses including the I.O. The Appellant No.1 has examined himself as a defence witness. In his evidence it is his case that the deceased Ranjana died on account of hanging by committing suicide and at the relevant time of the incident neither he nor his father were at home. . There are no eye witnesses who have seen Ranjana in a hanging position or being brought down from the hanging position. The evidence of D.W.1 i.e. Appellant No.1 discloses that the mother/wife (-5-) of the Appellants Nos.1/2 was at home on that date and one Ekanath Dhanaba Patil and teacher Bharamu Vithoba Patil had lifted Ranjana and brought her through a passage to the front room when he reached home. They have not been examined as defence witnesses. 5. We will, therefore, examine the evidence as to the offence under Section 498-A. The demand for contribution towards cost of vehicle is before marriage and the vehicle was also purchased before marriage. P.W.1 - Shri Parasharam Saturam Bhoga is the father of the deceased Ranjana. From his evidence it has come on record that the Appellant No.1 before his marriage had informed that he wanted to purchase motor vehicle of Maruti make and the witness should help him. On the day of Gudi Padawa he informed that he had seen Maruti vehicle and had called upon him to bring the money. P.W.1 went to the house of the accused person and obtained Rs.90,000/- from the accused and contributed Rs.55,000/- and took in all Rs.1,45,000/- to Belgaum. He paid Rs.1,45,000/- for the purchase of the vehicle. Appellant No.1, Satish was present at Sai Agency, Belgaum when the vehicle was purchased. This evidence is sought to be corroborated by the evidence of Sou. Reshma Parasharam Bhogan, P.W.10, the mother of the deceased Ranjana. According to (-6-) her the Appellant No.1 had asked her daughter whether her father would help him to some extent in purchase of vehicle and their daughter had appealed to them for help, for purchasing the vehicle. According to P.W.10 her husband P.W.1 obtained Rs.55,000/- from his brother in law Kallappa Bhogan, (P.W.8) and Appas Ambarekar resident of Kowad together and made over Rs.55,000/- to Accused No.1. The third witness in support of this case is P.W.8 Shri Kallappa Saturam Bhogan, the uncle of the deceased who confirms that he had advanced Rs.25,000/- to P.W.1 for that purpose. . In cross examination of P.W.1 on the aspect of purchase of the vehicle he has admitted that the vehicle was purchased for Rs.1,27,000/- from Santosh Motors Ltd., Belgaum. and that the appellant No.1 had not disclosed anything regarding booking of the vehicle on 15th March, 2004 by making payment of Rs.5,000/-. He was not in a position to say anything about the transfer of Rs.96,245/- from the account of Nita Vasant Patil and transfer of Rs.33,000/-from the account of Suresh Bhimrao Huddar some 5-6 days prior to 21st May, 2004 in the account of Accused No.2. In so far as the evidence of P.W.8 is concerned, in his cross examination he stated that the amount of Rs.25,000/- was by way of hand loan and that had been paid back to him. Though he (-7-) was maintaining the accounts of the shop he had not shown the accounts to the police. It is his case in evidence that he was having spare cash of Rs.25,000/- and from that he had paid Rs.25,000/- to P.W.1. . From this evidence what emerges is that a vehicle was purchased before the marriage of Appellant No.1 with the deceased. The case of the P.W.1 that the vehicle was purchased for Rs.1,45,000/- has not been proved. On the contrary evidence has come that the Appellant No.1 had booked the vehicle and the vehicle was purchased for a sum of Rs.1,27,000/- and not from Sai Automobiles but from Santosh Motors Limited. Whereas the case of the P.W.1 was that the accused had made a request, evidence of the P.W.10 is that, the Accused No.1 had made the request through her daughter Ranjana. . In so far as the money for purchasing a Mobile phone it is not the case of P.W.1 in his evidence that the accused had made any demand. This has come for the first time from the evidence of P.W.10. . The other aspect is of fees for the college. In so far as evidence regarding fees are concerned, in the cross examination of P.W.1, the receipt for (-8-) payment of fees shows that the fees had already been paid on 18th October, 2004. Apart from that it is not her case that the Appellant demanded any money towards payment of fees. 6. Considering this evidence, in our opinion the prosecution has been unable to show that subsequent to the marriage there was any demand made by Appellant No.1 on either P.W.1 or to P.W.10. Under these circumstances, in our opinion, prosecution was unable to establish the charge under Section 498A of the I.P.C. The conviction of the Appellants for the charge under Section 498-A read with Section 34 of the I.P.C. is set aside. 7. Next issue is as to whether the death of Ranjana was suicidal or homicidal. Let us first consider the evidence on record except the medical evidence which will be dealt with later. None of the witnesses examined by the prosecution have deposed that they saw the body of deceased Ranjana in a hanging position nor has the defence brought on record any such evidence. There is also no evidence from any witness that they brought the body down nor has any witness deposed to seeing the body being brought down. The earliest witness to have seen the body of Ranjana is P.W.10 and P.W.8 the uncle of the deceased. According to P.W.8 on 1st November, 2004 (-9-) he was informed by P.W.10 at 6.00 p.m. that she had received a telephonic message from Nagardale that Ranjana had hanged herself and was unconscious. He along with P.W.10 and some others proceeded to the house of the Appellants. On the way they met one Primary Teacher Bharamu Patil who informed that Ranjana had hanged herself and was unconscious. When they reached the house the body of Ranjana was lying in the front room on the first floor and three or four ladies were rubbing her feet. Shri Vithoba Oulkar of village Nagardale was also there. This Vithoba Oulkar informed P.W.8 that Ranjana was unconscious and he should call Doctor. P.W.8 thereafter took Ranjana to the hospital of one Dr. Parasharam Patil (P.W.6) at Kowad. They had noticed injuries on her neck. Dr. Patil informed that Ranjana had expired. In cross he has stated that he had informed the Doctor that it was learnt that she had tried to hang herself and was unconscious. . P.W.10 mother of the deceased in her evidence has stated that when they reached the house of the Appellants people had gathered there and they had taken Ranjana from the front room to the hospital of P.W.6. who declared her dead. From the hospital of Dr. Patil they took Ranjana’s body to village Nagardale and the police thereafter came there and took the dead body for post-mortem (-10-) examination. The body was brought back to Nagardale and the funeral took place there. . P.W.2 Sou.Shanta Santu Wandre, the Panch witness at the inquest panchanama in her cross examination admits that at the time of inquest panchanama, there was a saree of white and red colour around the neck of the dead body. P.W.4 Pundlik Tukaram Patil, Police Patil, in his evidence deposed that Vithal Oualkar had come to his house and had informed that the deceased had committed suicide by hanging and that the Appellant No.2 was searching him. When he reached the appellants home he had seen the dead body. At that time the parents of the deceased were also present. At this stage we may note that Vithal Oualkar has not been examined. P.W.5 Ranaba Vithoba Chougule was a Panch for the spot panchanama. In his evidence it has come on record that at the spot shown by the Police Patil (P.W.4), 4 syringes, one injection and cap as well as one hook were seized. The spot was kitchen room. There was a platform of waist height in the said kitchen room. The iron hook was detached from the frame of the said door. P.W.9 Pundlik Narayan Jadhav accompanied P.W.8 and P.W.10 in the vehicle. In his evidence he has stated that one Patil told them that deceased hanged herself and was unconscious. When they reached there, Ranjana was (-11-) seen lying in front room on the first floor of the house of the accused and some ladies were giving massage to her legs. . The Appellant No.1 had examined himself as D.W.1. It is the case of the Appellant No.1 that at the relevant time i.e. between 5.00 to 5.30 p.m. he was not at the house, as during that period as his friend was having fever and vomiting, he had gone to his house and given him medical treatment and returned back at 6.00 to 6.15 p.m. When he returned back he saw commotion on the first floor and he immediately rushed to the first floor where he saw Ekanath and Dhanaba Patil and teacher Bharamu Vithoba Patil lifting Ranjana and bringing her to the passage in the front room and his mother was accompanying them. On query his mother informed him that Ranjana had hanged herself with the help of Saree. He examined Ranjana and found her pulse feeble and breath uneven and he provided artificial breathing. Immediately he gave half CC injection of Idrinaline. His father reached there when he was providing first aid to Ranjana and his father instructed one Vithoba Oulkar to inform Police Patil. 8. The evidence on the spot of the incident as disclosed in the Panchnama i.e. the kitchen where (-12-) it is alleged that Ranjana hanged herself needs to be examined. P.W.5-Ranaba Vithoba Tougule, has stated that kitchen platform was waist high. At the panchanama one iron hook was detached from the door and that was seized. P.W.10-Sou.Reshma Parasharam Bhogan in her evidence with reference to the kitchen room has deposed that there is one rack for utensils in the said kitchen and both the sides of kitchen, there are plat-forms of about 2 to 2 and 1/2 ft. The height of the kitchen is about 12 and 1/2 ft. to 13 ft. There were angles on the upper room of the kitchen and it was not easy to climb the platform in the kitchen room. In her cross it was put to her that tin-boxes are kept on wooden plank above the kitchen platform and to take out the said tin boxes one has to climb the kitchen platform.She denied that the height of kitchen room is about 8 and 1/2 ft. From a suggestion it has come on record that one hook is at the centre of the upper roof of the kitchen room. . From the evidence of D.W.1 nothing has come on record in so far as the height of the kitchen is concerned as also the height between the Platform and the kitchen. There is also no evidence as to whether the deceased had hanged herself from the hook at the centre of the kitchen or from the door where there was a hook, if the defence of the (-13-) Appellants is to be accepted. 9. From this evidence it would be clear that there is no eye witness who has deposed to have seen Ranjana actually in a hanging position or her body being brought down or any other ocular or documentary evidence. The only evidence which has come on record is the evidence of the witnesses that they saw the body lying in the front room. Though D.W.1 in his examination in chief had stated that when he returned his mother informed him that Ranjana had hanged herself, neither his mother has been examined nor the two persons Eknath Dhanaba Patil and Bharamu Vithoba Patil whom he had seen carrying Ranjana. In our opinion there is no evidence in support of the defence version that Ranjana committed suicide by hanging herself. The medical evidence will have to be considered to arrive at a finding whether death was homicidal or suicidal. 10. Before that let us examine the conduct of both the accused, before the date of the incident as also of the parents of the deceased. According to P.W.1 on 30th October, 2004 after he returned from duty there was a telephone call which was received by his wife P.W.10. P.W.10 informed him that the mother in law of Ranjana had informed that Ranjana (-14-) was uneasy and he should rush to village Nagardale. He went with one Pundlik Jadhav to village Nagardale. When he reached the home of accused his daughter Ranjana was seated and she was weeping in her bed room. At that time Appellant No.2, his wife and the brother of the Appellant No.2 were standing in the frame of the door of the bed room. Seeing him Ranjana started weeping loudly. When he enquired of her, she said that she wanted to say something and started weeping more. He thereupon asked the Appellant No.1, his parents and uncle and his companion Pundlik Jadhav to wait outside. He closed the door from inside and enquired with the deceased. At that time she disclosed that she was molested twice by her father in law. He enquired of her whether she had informed this to her husband. The deceased informed him that Appellant No.1 was blaming her that she was defaming his father and belaboured her and threatened her not to disclose the same to anybody. Deceased told him that she would like to accompany him to Kowad that night. As he had come on bike and the other person was with him he pacified her that after 2-3 days he would come and take her to village Kowad. On his return he narrated the entire incident to P.W.10, who disclosed to him that Ranjana had earlier appraised her of such incidents. P.W.10 who has deposed that when P.W.1 came back he informed her that Ranjana (-15-) was complaining that the Appellant No.2 was committing atrocities on her and that the deceased had informed him that she would not reside at the matrimonial home and would like to accompany him home. At that time P.W.10 informed him that Ranjana had already made complaint to her, but she had not informed him. In cross examination she has stated that she had asked the Accused No.1 about the complaint by her daughter of molestation by Accused No.2, but he had kept mum. . In the evidence of P.W.10 it has come in evidence that the mother in law of the deceased had made complaint that the deceased does not know household work and she had requested that she should adjust. The mother in law said that panchas should be called to prepare a document on stamp admitting that the deceased does not know household work. The mother in law returned back on the very same day. That same evening she sent deceased back to the village with his son. After a fortnight she came back and she was nervous and when enquired replied that the father in law had outraged her modesty and that both the Appellant No.1 and Appellant No.2 used to beat her. She had pacified the deceased as she had to reside with the Appellant and sent her back to matrimonial home. After 1 1/2 months the Appellant No.2 had come to the residence and also (-16-) complained that Ranjana does not know household work. At that time the Appellant No.2 had informed her that at Nagardale the daughters are being killed and the same may happen with Ranjana. Also in the day of the incident she had sent her son Pramod to bring back Ranjana. However, he was sent back by Appellant No.2. 11. This evidence of the P.W.1 and P.W.10 is sought to be criticised on behalf of the Appellants on the ground that in such a serious case of molestation and beating and the complaint by the deceased to P.W.1 on 30th October, 2004 and to P.W.10 earlier, it is impossible, that P.W.1 would not have taken her back home immediately and or for that matter P.W.10 would not have disclosed to P.W.1 about the allegations of molestation. It is also sought to be contended that if this had been the case then P.W.1 and P.W.10 as parents on coming to know of the death of the deceased would have immediately disclosed those facts to Police Authorities and not waited for the post mortem to be done. . In our opinion it is not possible to accept this criticism. The marriage was not even five months old. The first thing parents in such circumstances in any Indian home, specially in rural (-17-) areas would try to do is to save the marriage and honour of the family. P.W.10’s not informing her husband is understandable not knowing the reaction of P.W.1. According to this witness, she, however, had informed the Appellant No.1 of the same which would be the normal thing in such circumstances. Though P.W.10 has deposed that she informed the accused and though Accused No.1 has examined himself, except for a general denial as to molestation he has not explained this evidence of P.W.10. To question No.98 his only answer generally is that it was false. . As far as the issue of molestation is concerned, though the criticism on behalf of the Appellants that there was no disclosure to the Police immediately in the context of the allegations may have deserved some credit, yet it cannot be disputed that on 30th October, 2004 P.W.1 was called to the house of the Appellants. On 1st November death was sought to be explained as suicidal. If, therefore, the parents kept quite on the issue of molestation and only disclosed the same after the Doctors P.M. report it is explainable,as they were earlier informed that Ranjana had hanged herself. Their stand can only be of grieving parents not going hysterical. (-18-) 12. In so far as assault is concerned it has only come in the evidence of P.W.10. There is no corroboration to that effect from P.W.1. In so far as the purported threat by the appellant No.2 made to P.W.10 again it is not corroborated. In the absence of any corroboration this part of the testimony as to assault and the threat issued by Appellant No.2 is not proved. 13. We may now examine the purported suicide note purported to have left behind by the deceased. In his evidence the Appellant No.1-D.W.1 has deposed that writing (D-D) was found beneath the bed of the appellant No.1 and the deceased on 2nd November, 2004 by his mother. It is in his evidence that he took xerox copy of that note. On 2nd November, 2004 when the Police had taken him and his father to Police Station, Chandgad, he had made over the xerox copy of the Note to the Police and had made a request to make investigation in respect of the said handwriting. The Police demanded the original note. He informed that it was not with him and he would not hand over the same to the Police and they should make investigation on the basis of that xerox copy. P.W.12 Shri Ashok Jagannath Bhoi, who was the I.O. in his cross examination, has denied that the xerox copy of the suicide note was made over to him by the accused Appellant No.1 for investigation. He also (-19-) denied that Appellant No.1 requested this witness to collect specimen of handwriting and signature of deceased Ranjana from the school and elsewhere and that the witness was insisting to hand over the original suicide note. . The Appellants had applied