drp {1} Cri. Appeal No.139/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.139 OF 2010 1. Maroti s/o Piraji Khanzode APPELLANTS Age-55 years, Occ-Agri R/o Jodtala, Tq & Dist-Hingoli 2. Vinod s/o Maroti Khanzode Age-30 ears, Occ-Agri R/o Jodtala, Tq & Dist-Hongoli 3. Satyabhamabai w/o Maroti Khanzode Age-50 yeas, Occ-Household R/o Jodtala, TQ & Dist-Hingoli VERSUS The State of Maharashtra RESPONDENT ....... Mr.N.S.Ghanekar, Advocate for the appellants Mr.S.D.Kaldate, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 10 th June 2011 drp {2} Cri. Appeal No.139/2010 ORAL JUDGMENT (PER A.V.POTDAR, J.) : 1. By the present appeal, the appellants, who are convicted for an offence punishable u/s 302 r/w 34 of the Indian Penal Code and u/s 498A r/w 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/- each with default stipulation of undergoing further RI for three months, on first count and sentenced to SI for one year and to pay a fine of Rs.500/- each, in default to undergo further SI for one month, on second count, by Additional Sessions Judge, Hingoli vide judgment and order dated 11.03.2010 rendered in Sessions Trial No.48/2008, have questioned the correctness of their conviction and sentence. 2. Brief facts, which are necessary for the decision of this appeal, may be stated thus - a) On the complaint (Exhibit-23) lodged by PW-2 Pandharinath Surve, father of deceased Godavari, on 02.07.2008, an offence at Crime No.46/2008 came to be registered with Basamba police station u/s 498A and 302 r/w 34 of the Indian Penal Code, against the appellants, one Gajanan and Laxmibai for committing murder of Godavari, on 01.07.2008 at her matrimonial house. b) Investigation of the said crime was entrusted to PW-11 drp {3} Cri. Appeal No.139/2010 API Baburao Chavan. During the investigation, he visited the place of offence and drew spot Panchanama (Exhibit-33). One silver chain of ankle was seized from the spot. Thereafter, statements of certain witnesses came to be recorded. The appellants were put under arrest on 02.07.2008 and Panchanamas (Exhibit-37 to Exhibit-41) came to be prepared to that effect. c) While in custody, appellant No.1, on 05.07.2008 made disclosure statement (Exhibit-25) in presence of Pancha witnesses. One blouse, which was buried in a cattle shed, was discovered and came to be seized. On 07.07.2008 statements of some more witnesses, including mother of the deceased, came to be recorded. On 24.07.2008 viscera of the deceased was sent to CA along with forwarding letter (Exhibit-35). After completion of the investigation, charge sheet came to be filed against the appellants and others before JMFC, Hingoli. d) On being committal of the trial to the Court of Sessions, the trial court framed charge (Exhibit-12) against all the accused for an offence punishable u/s 498 A and 302 r/w 34 of the Indian Penal Code. The accused abjured their guilt and claimed to be tried. Prosecution, to substantiate the charge against the accused, examined in all 11 witnesses. Defence of the appellants and others was that drp {4} Cri. Appeal No.139/2010 Godavari (deceased) was suffering from convulsion since prior to her marriage and was taking treatment for the same and that Godavari had suffered attack of convulsion in the morning on 01.07.2008 and hence she was taken to the civil hospital and nobody was present in the house when Godavari (deceased) suffered attack. It was contended by the accused that Godavari expired in the hospital due to attack of convulsion on 01.07.2008 and appellant No.1 had accordingly lodged a report (Exhibit-47) with the Police Chowki, Civil Hospital, Hingoli. The accused have also examined accused No.3 Gajanan in their defence. On appreciation of the evidence, trial court acquitted original accused No.3 Gajanan and accused No.5 Laxmibai from all the charges, however, convicted the appellants / original accused No.1, 2 and 4, as stated above. 3. For better appreciation of the submissions advanced by learned counsel for the appellants and learned APP for respondent State, it may be useful to advert to the evidence of material witnesses examined before the trial court. 4. Prosecution, to prove that the death of Godavari was homicidal, has mainly relied on the evidence of PW-1 Dr.Bhagwan Pundge and the Postmortem report (Exhibit-20). Prosecution has also relied on the evidence of PW-4 Datta Gore through whom the prosecution got proved the Inquest Panchanama (Exhibit-27). drp {5} Cri. Appeal No.139/2010 Perusal of Inquest Panchanama (Exhibit-27) discloses that the same was prepared in mortuary of civil hospital, Hingoli, on 01.07.2008 between 3.00 and 3.30 p.m. i.e. even before lodging of the complaint. Evidence on record indicates that the Pancha witnesses to the Inquest Panchanama are close relatives of the complainant and the deceased and hence there shall not be any room for doubt that the injuries mentioned in the Inquest Panchanama are false. Perusal of Inquest Panchanama (Exhibit-27) reveals that only swelling was noticed over the neck of the deceased and her tongue was caught between teeth. Other than this, no other external injury was found on the dead body, except abrasion on the left knee. The said injuries were also reflected in the Postmortem report (Exhibit-20). 5. It transpired from the evidence of Dr.Bhagwan Pundge (PW-1), who had conducted Postmortem examination on the dead body of Godavari (deceased) along with Dr.Mukkalwar, that he had noticed abrasion and red colour on left knee. According to him, the injury was antemortem and the cause of death, as per the medical officer, was due to asphyxia as her respiration was objected due to pressing of nose and mouth with some soft and thick object. From cross examination of PW-1 Dr.Pundge, it transpired that he had not noticed any blood stain or omitting on the clothes of the dead body. He has further noticed that neither there was any injury on the tongue of the deceased nor under her nails. He has further stated that he forgot to mention the age of the injuries in column drp {6} Cri. Appeal No.139/2010 No.17 of the postmortem report. Fluid of tea colour nature was noticed in the stomach of the deceased. Certain admissions are given by him in his cross examination that if the nose and mouth of a person are pressed by a smooth cloth then there appears paleness or whiteness on that part of the body, however, he had not noticed any such paleness or whiteness on the dead body of Godavari during the postmortem. He was not certain as to whether such type of injuries are possible due to pressing by soft cloth or not. He has further stated that due to pressing of mouth and nose interra canine pressure gets increased. According to him, there is no possibility of oozing of blood and saliva from mouth, nose or ear due to increased interra canine pressure. He had not noticed the same while conducting Postmortem on the dead body. He has further stated that the injuries noticed on the backside of the deceased are not possible due to pressing of nose, mouth etc. He has admitted that death can be possible due to convulsion in asphyxia and convulsion can be possible due to various and other causes. He has further admitted that abrasion can be possible due to fall on hard and blunt object and that the findings recorded in the Postmortem report can be possible due to convulsion. 6. Considering the rival submissions, it is imperative to read the Medical evidence in the light of the evidence of defence witness i.e. original accused No.3. Accused No.3 Gajanan has stated in his evidence that appellant No.1 was serving as Kotwal in the office of Deputy Collector, Hingoli and he used spectacles and drp {7} Cri. Appeal No.139/2010 he could not see anything without the help of the spectacles. His mother, appellant No.3 Satyabhama was serving in Anganwadi and he was doing agriculture and other works. Appellant No.2 was serving in a fertilizer shop at Jodtala. During the harvesting season appellant No.3 was to stay at Hingoli and was doing up and down from Jodtala. Appellant No.1 was working as a night watchman in the office of Deputy Collector and used to leave Jodtala at 3/4 p.m. and used to return in the morning at 8.30 a.m. In respect of date of incident he has stated that he was present at their house along with his mother and the deceased. After taking tea appellant No.3 went to attend her duties and appellant No.1 had came after attending duty and after having tea he had taken the bullocks to a well so also he had gone to one Jadhav to bring fertilizers. He has further stated that around 9.00 a.m. one Dinkar Surve informed him that Godavari was lying unconscious in the house. Therefore, he immediately rushed to his house and noticed that number of people were gathered there. His father had also returned along with bullocks. He called some labours and Godavari was shifted to the hospital of Dr.Jadhav, who had advised to shift her to the civil hospital. Message was passed on to appellant No.3, who had also rushed from the school to the house. Godavari was taken to the Civil Hospital where, on examination, she was declared dead. He has further deposed that when they were proceeding to the civil hospital, a message was passed on to the parents of the deceased. His father, appellant No. 1 had lodged a report in the police chowki at Civil Hospital about drp {8} Cri. Appeal No.139/2010 the incident. He has stated that deceased Godavari was suffering from convulsion and due to the said attack, she expired in the hospital. It transpired form his cross examination that deceased was suffering from convulsion even prior to her marriage and was taking treatment for the same. Godavari had suffered the attack of convulsion in the morning on 01.07.2008. 7. Learned counsel for the appellants urged that though PW-2 Dr. Bhagwan has opined that the cause of death was due to asphyxia as respiration of the deceased was objected due to pressing of mouth and nose by soft and thick object, yet the same is not corroborated by his evidence. His entire evidence is silent on the point as to how the medical expert has came to this conclusion. Apart from it, even the PM report (Exhibit-20) is silent on this aspect. 8. In this respect, it may be useful to refer a passage from Modi’s Medical Jurisprudence and Toxicology. In respect of external appearance it is stated thus - “In homicidal smothering, affected by the forcible application of the hand over the mouth and the nostrils, bruises and abrasions are often found on the lips and on the angles of the mouth, and alongside the nostrils. The inner mucosal surface of the lips may be found lacerated from pressure on the teeth. The nose may be flattened, and its septum may be fractured from pressure of the hand, but these signs are in Modi’s experience, very rare. There may be bruises and drp {9} Cri. Appeal No.139/2010 abrasions on the cheeks and the molar regions, or on the lower jaw, if there has been a struggle. Rarely, fracture or dislocation of the cervical vertebrae may occur if the neck has been forcibly wrenched in an attempt at smothering with the hand. No local signs of violence will be found, if a soft cloth or pillow has been used to block the mouth and nostrils.” In respect of internal appearance it is stated thus - “It may also be found in the pharynx of the oesophagus. The mucous membrane of the trachea is usually bright red, covered with bloody froth and congested. The lungs are congested and emphysematous. They may be lacerated or contused even without any fracture of the rib, if death has been caused by pressure on the chest. Punctiform subpleaural ecchymoses (Tardieu spots) are usually present at the root, base and the lower margins of the lungs, but they are not characteristic of death by suffocations, as they may also be present in asphyxial death from other causes. They are also found on the thymus, pericardium and along the roots of the coronary vessels. The lungs may be found quite normal, if death has occurred rapidly. The right side of the heart is often full of dark fluid blood, and the left empty. The blood does not readily coagulate; hence, wounds caused after death may bleed. The brain is generally congested, and so are the abdominal organs, especially the liver, spleen and kidneys.” 9. Perusal of the Postmortem report (Exhibit-20) indicates that the same is silent in respect of external as well as internal appearance of the organs, to infer homicidal smothering. In this light of the matter, we are of the considered view that Dr.Bhagwan Pundge has not stated the ground to form such an opinion. Thus, drp {10} Cri. Appeal No.139/2010 it cannot be inferred that the death of Godavari is a homicidal death. Once it is concluded that the death of the deceased is not a homicidal death, then the charge of murder, levelled against the appellants, ought to fail. 10. Now, remained the question as to whether there is sufficient material on record to prove the charge for an offence punishable u/s 498A against the appellants or not. In this respect, the prosecution has mainly relied on the evidence of PW-2 Pandharinath, PW-5 Digamber, PW-8 Madhukar, PW-9 Suresh and PW-10 Taibai, close relatives of the deceased. PW-2, father of the deceased has stated that after the marriage Godavari was residing in a joint family and after the marriage the appellants started demanding Rs.1 lac for starting hotel business and used to harass Godavari. Godavari (deceased) had informed him about the demand by the appellants and he had told the appellants that due to the sowing season he was not in a position to pay the amount. He has stated in the cross examination that marriage of Godavari with appellant Vinod was a settled marriage. He has further admitted that he was unable to give the exact date when Godavari had made complaint about ill-treatment by the appellants for demand of money. Omissions are proved in his cross examination that he has not stated in the complaint that Godavari was ill- treated after her marriage, that he had told Godavari that he was not in a position to pay the money to the appellants due to the sowing season, that though he had requested the appellants the drp {11} Cri. Appeal No.139/2010 appellants were ill-treating Godavari, that marks of blouse were noticed on the neck of Godavari and that one ankle chain of Godavari was missing. 11. Next important witness examined on the point of harassment and ill-treatment of Godavari, was PW-5 Digambar, cousin of the deceased. He was residing in the same village where Godavari was residing after marriage. On receipt of information that Godavari was lying unconscious he had rushed to her house and had noticed that she was lying on the floor and her tongue was caught between teeth. Her ankle chain was lying at some distance and one yellow blouse and hair pin was also lying there. He accompanied Godavari in the hospital and had noticed swelling over her neck. He was the mediator for settlement of marriage of Godavari with appellant Vinod. He has stated that father of Godavari had visited the house of the appellants on 2/3 occasions after her marriage. He has admitted that he was on visiting terms to the matrimonial house of Godavari. Careful perusal of evidence of PW-5 Digambar indicates that though he was on visiting terms to the house of the deceased yet it is surprising to note that the deceased had not complained him about the ill-treatment or harassment meted out to her by the appellants or has not communicated any demand of money made by the appellants to him. 12. PW-8 Madhukar, cousin of the deceased, has stated on drp {12} Cri. Appeal No.139/2010 the similar lines as that of PW-2 Pandharinath. He has stated that on one occasion, Godavari had been to her maternal house after marriage at that time she had complained about the demand of Rs. 1 lac by the appellants to start a hotel and she was told that they were not in a position to pay the amount. What this witness has stated in his evidence has been proved omission in his cross examination, as what he has stated in the evidence, he had not stated in the statement before police. Evidence of PW-9 Suresh is on the similar lines as that of PW-8 Madhukar, including the omissions. 13. PW-10 Taibai, mother of the deceased, has stated that Godavari used to talk with her on phone and used to complain about ill-treatment by the appellants. She has stated that Godavari and appellant No.3 Satyabhama had been to her house at that time Godavari had informed about the demand of the appellants and ill-treatment by them. However, she has admitted in her cross examination that neither there was a telephone in her house nor was there telephone in the house of Godavari. She even could not give the phone number on which she used to receive calls of Godavari. So also she could not give the phone number from which Godavari used to make calls. Omissions are proved in her cross examination that she has not stated in the statement before police that Godavari was found not happy at the time of her visit, that Godavari had informed about harassment and ill-treatment by the appellants and requested to take her back to her maternal home, drp {13} Cri. Appeal No.139/2010 that Godavari and Satyabhama were brought to their house by PW-2 Pandharinath, that Godavari had informed about the demand of Rs. 1 lac and that she was told that they were not in a position to pay the amount. 14. It is urged by learned counsel for the appellants, by drawing our attention to the evidence of the close relatives of the deceased, that the same nowhere speaks firstly that there was demand by the appellants to bring Rs.1 lac and secondly there is no evidence that Godavari was ill-treated and harassed by the appellants for not fulfilling their demands, as what is stated by these witnesses, has been proved to be omissions. In substance, perusal of evidence of these witnesses clearly establishes that there is no evidence to sustain the conviction of the appellants for an offence punishable u/s 498A of the Indian Penal Code also. 15. In the premise, in absence of sufficient material to base the conviction of the appellants for the offence punishable u/s 302 as well as 498 A of the Indian Penal Code, the conviction of the appellants cannot be sustained. Therefore, the appeal deserves to be allowed by quashing and setting aside their conviction and sentence. 16. The Criminal Appeal is allowed and the conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offences with which they were drp {14} Cri. Appeal No.139/2010 charged and convicted. Fine, if any, paid by the appellants be refunded to them. Since the appellants No.1 and 2 / original accused No.1 and 2 are in jail, they be released forthwith, if not wanted in any other case. Appellant No.3 / original accused No.4 is on bail. Her bail bonds stand cancelled. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel139-10