1 Cr-Apeal-1028-2006 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1028 OF 2006 Vitthal Vasant Sanap ] Age 28 yrs., residing at ] Dharangaon, (Veer), Taluka- Niphad ] Dist. Nashik. ] Accused in Nashik Jail ] ...Appellant. Vs. The State of Maharashtra . ] At the instance of the Lasalgaon ] Police Station. ] ...Respondent. AND CRIMINAL APPEAL NO. 1042 OF 2006 1.Vasant Shankar Sanap & Anr. ] Age 47 yrs. ] And 2. Lalitabai Vasant Sanap, ] Age 42 yrs. ] Both residing at Dharangaon, (Veer), ] Taluka- Niphad, Dist. Nashik ] ...Appellants. Vs. The State of Maharashtra . ...Respondent. 2 Cr-Apeal-1028-2006 WITH CRIMINAL APPLICATION NO. 1127 OF 2010 IN CRIMINAL APPEAL NO. 1028 OF 2006 Mr. I.S. Thakur and Ms. Shraddha Mohite, for the Appellants. Mrs. M.M. Deshmukh, APP for the State. --- CORAM: B.H. Marlapalle & U.D. Salvi, JJ. Reserved On: 1st February, 2011. Declared on : 6th June, 2011. JUDGMENT (PER U.D. SALVI, J): 1 Sagacity of the judgment and order dated 10.10.2006 passed by the Ad-hoc Additional Sessions Judge-1, Niphad, District-Nasik convicting appellants-accused on various counts as under is in question in the present appeal: i) Accused no.1 Vithal Vasant Sanap convicted for the offence punishable under Section 302 of IPC, 1860 and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 1000/-, in default to suffer further R.I. for one year; ii)Accused no.1 Vithal Vasant Sanap convicted for the offence punishable under Section 498-A read with 34 of IPC, 1860 and 3 Cr-Apeal-1028-2006 sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.500/-, in default to suffer further R.I. for six months; iii) Appellant-accused no.2 Vasant Shankar Sanap convicted for the offence under Section 498-A read with Section 34 of IPC 1860 and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.500/-, in default to suffer further R.I. for six months. iv) Appellant-accused no.3 Lilabai Vasant Sanap convicted for the offence -punishable under Section 498-A read with Section 34 of IPC and sentenced to suffer simple imprisonment for one year and to pay fine of Rs.300/-, in default to suffer further S.I. for three months. 2 Concisely the prosecution case is as under: The appellant-accused Vitthal Sanap in Criminal Appeal No. 1028 of 2006 is the son of the appellants in Criminal Appeal No.1042 of 2006. The deceased Savita was given in marriage to the appellant-accused Vitthal Sanap on 24.4.2004 at Mahajanpur, Tal. Niphad, District-Nasik and dowry of Rs.41,000/- and utensils worth Rs.35,000/- were given at the time 4 Cr-Apeal-1028-2006 of her marriage to the appellant-accused Vitthal Sanap. All the appellants- accused resided together at village Dharangaon Veer. The parents of the deceased Savita- Trimbak Fad and Rakhmabai Fad, and her brother Yogesh were residing at Mahajanpur Veer, Tal. Niphad, and her another brother Guruprasad was residing at Mumbai with their sister Shobha, who was given in marriage to Sampat Waliba Lokhande of Shimpi Takli. Yogesh Fad and one Sampat Baburao Nagare were sent to bring Savita and to invite all the accused for family party of Mango juice on 12.6.2004. On his return, Yogesh disclosed that Savita was being beaten by her in laws viz. Vasant Sanap and Lilabai Sanap and abused by her husband Vitthal Sanap. He further disclosed that in his presence they were demanding for Rs.35,000/- for purchasing a motor cycle, and they were asked to keep money ready when Vitthal was to come to take Savita back to matrimonial home on 15.6.2004. On 15.6.2004, Vitthal came to Mahajanpur Veer on his bike and had made an inquiry with Savita as to whether the arrangement for money was made, and Savita gave negative reply to her husband and Rakhamabai the mother of Savita told Vitthal that money would be paid when the same was available. Whereupon, Vitthal left their house telling that they should keep money ready on 18.6.2004. Rakhmabai, therefore, made a phone call to her sister Laxmibai and 5 Cr-Apeal-1028-2006 informed her about the demand of accused. She was advised by Laxmibai not to send Savita to her matrimonial home. When Vitthal came to Mahajanpur Veer to take Savita back to the matrimonial home on 18.6.2004, Savita became apprehensive and was reluctant to join her husband out of fear of she being troubled for money and gold ring. However, Vitthal took Savita with him to Gulvanch. Whereupon Rakhmabai on advise of one Deepak Shivram Avad went to Gulvanch along with Deepak and disclosed to one Vitthal Kangane the maternal uncle of the deceased, about about ill-treatment and demands made by the accused and thereupon Vitthal Kangane assured that he would tell all the accused to treat Savita properly. Though, Savita had asked Rakhmabai to accompany her to her matrimonial home fearing the demands made by the accused for ornaments, Rakhmabai did not join her. On 23.6.2004, the parents of the deceased Savita were informed on telephone by Pradip Sampat Fad that Savita was dead. Rakhmabai and her relatives thereupon went to the Niphad Hospital, where they found body of the deceased Savita with injury below her right eyebrow. Rakhmabai, the mother of the deceased Savita thereafter lodged the complaint against the appellant-accused alleging that as a result of their failure to fulfill demand of Rs.35,000/- for purchase of motorcycle and of 6 Cr-Apeal-1028-2006 gold ring made by Vitthal Sanap, the appellant-accused had committed murder of Savita by beating her in the night between 22.6.2004 and 23.6.2004 and throwing her in Well. Thereupon a crime at CR No.64 of 2004 under Sections 302, 498A, 323, 504, 506 and 34 of IPC, 1860 and Section 3 of Dowry Prevention Act. 1961 came to be registered against the appellant-accused at Lasalgaon Police Station on 24.6.2004. 3 Prior to this complaint, the appellant-accused Vitthal had lodged accidental death report No.28/4 under Section 174 of Cr.PC, 1973 with Lasalgaon Police Station around 13.45 hours on 23.6.2004, whereby he reported to the police that his wife Savita died as a result of drowning in well sometime between 6.00 a.m. and 11.00 a.m. on 23.6.2004. As per his report, all of them went to sleep around 10.30 p.m. after dinner on 22.6.2004 in their farm house at Village Dharangaon; and he and his wife the deceased Savita slept in Padvi (outer room); and when he woke up around 6.00 p.m. on 23.6.2004 he did not find his wife Savita, and therefore, he made inquiry with his mother who told him that the deceased Savita woke up around 6.00 a.m., washed utensils and attended to their cattle and thereafter was not seen; and during the search made by him Savita’s chappal was found near a well in the farm thereby arousing his 7 Cr-Apeal-1028-2006 suspicion that his wife must have fallen in the well. However, he reported, nothing could be seen in the well as the well was full of water, therefore, he pumped out the water by motor pump only to discover the body of Savita at the bottom around 11.00 O’clock on 23.6.2004. 4 The police swung into action following the accidental death report and visited the spot shown by the appellant-accused Vitthal Sanap where the deceased Savita died. Inquest over the body of the deceased was conducted in the presence of the panchas. The body of the deceased was sent to Rural Hospital Niphad for autopsy. Post-mortem examination was conducted on 24.6.2004 between 10.40 a.m. to 11.15 a.m. Following the registration of the crime against the appellant-accused around 14.15 hours on 24.6.2004 at Lasalgaon police station, the accused were arrested. Police recorded the statements of the witnesses and after completing investigation, lodged a charge sheet against the appellant-accused for the offences punishable under Sections 498-A read with Section 34 and Section 302 read with Section 34 of I.P.C. 1860 in the Court of Judicial Magistrate F.C. Niphad. 5 In due course, the case was committed to the Court of Sessions 8 Cr-Apeal-1028-2006 and charge-Exh. 8 under Sections 498-A read with Section 34 and 302 read with Section 34 of I.P.C. 1860 was framed against all the accused. The accused pleaded not guilty to the charges leveled against them. 6 The prosecution examined seven witnesses including the complainant. While responding to the examination under Section 313 of Cr. P.C., 1973, the appellant-accused denied involvement in the crime and made reference to deceased Savita’s anxiety regarding non-setting of her menstrual period and she taking recourse to pills for abortion. 7 Pertinently, there is no eye witnesses account to answer the question as to how the deceased Savita met her end. Relying heavily on Section 106 of the Evidence Act, the learned trial Court held that as the deceased was in the company of the appellant-accused last, the burden of explaining the facts and circumstances surrounding the death of the deceased Savita, fell squarely on the shoulder of the appellant-accused, and they having failed to discharge this burden could be legitimately held guilty of the charges leveled against them. The learned trial Court drew an inference from the ante mortem injury found on the person of the deceased that the deceased was subjected to physical violence and on suspicion that the deceased was pregnant since prior to her marriage with the appellant- 9 Cr-Apeal-1028-2006 accused Vithal Sanap, this ghastly act of eliminating her was prompted and thereafter she was thrown in the well to make out a false case, either of a suicide/accident. 8 According to the learned advocate Mr. Thakur, the circumstances obtaining from the scene of offence panchnama Exh. 39, inquest panchnama Exh. 24 if read in conjunction with the medical evidence viz. the post mortem examination report Exh. 35, clearly indicate that Savita met her end either as a result of suicide or accident but certainly not as a result of homicide and therefore, the findings of the learned trial Court are perverse. 9 After taking us through the entire evidence, Mr. Thakur, the learned counsel for the appellant-accused cited the following judgments in order to secure favourable judicial opinion in relation to the evidence on record:- i] C.K. Raveendran Vs State of Kerala [2000 (1) SCC 225]; ii] R. Rajendran Nair Vs. State of Kerala [1998 AIR (SC) 1]; iii] Subramaniam Vs. State of Tamil Nadu & Anr. [2009 (7) JT 403]; iv] Bhairon Singh Vs. State of M.P. [2009 AIR (SC) 2603]; 10 Cr-Apeal-1028-2006 v] Surinder Pal Jain Vs. Delhi Administration [AIR 1993 (SC) 1723]; vi] Tarseem Kumar Vs. Delhi Administration [AIR 1994 (SC) 2585]; vii] Prem Singh:Amarjit Singh: State of Punjab Vs. State of Punjab:Bimal Kaur [1997 AIR (SC) 221]; viii] Lekh Ram and Brij Lal Vs. State of Punjab [1992 (4) JT 163]; ix] State of Haryana Vs. Rajinder Singh [1996(8) SCC 77]; x] Shaikh Maqsood Vs. State of Maharashtra [2009(6) SCC 583]; xi] Babu Vs. State of Kerala [ 2010 ALL MR (Cri) 3342 (SC)]; xii] Jaharlaldas Vs. State of Orrisa [ AIR 1991 (SC) 1388]; xiii] Hanuman Govind, Nargundkar & Anr. Vs. State of M.P. [AIR 1952 (SC) 343]; xiv] Pushpa Ramchandra Gore Vs. State of Maharashtra [1997 (2) Mh. Law Journal 92.]; xv] Rambhau Kashinath Waibha Vs. State of Maharashtra [1998(1) Mh. Law Journal 469]; 11 Cr-Apeal-1028-2006 xvi] Dilip Ramji Kanade Vs. State of Maharashtra [2000(1) Mh. Law Journal 549] 10 In C.K. Raveendran’s case (Supra), there was neither motive nor proof, direct or circumstantial, to show that the death was homicidal, and therefore, the conviction was not sustainable. In R. Rajendran Nair’s case (Supra), the Hon’ble Supreme Court found the conviction of the appellant under Sections 302 and 201 of IPC, 1860 unsustainable for the following reasons: (i) the mortician was unable to answer whether the death of the victim was homicidal or suicidal; (ii) it was improbable for an individual to hang a living person all alone; (iii) absence of any proof that the victim was alive when the appellant came back and that he hanged his wife, the victim. In Subramaniam’s case (Supra), the circumstances that the deceased and the accused were living together as husband and wife may be considered as a strong circumstance but by that alone in absence of any 12 Cr-Apeal-1028-2006 evidence of violence on deceased cannot be held to be conclusive regarding culpability of the husband in the case of his wife’s death caused by Asphyxia. In Bhairon Singh’s case (Supra), the statement made by the deceased wife about her husband’s ill treatment meted out to her is held not admissible under Section 32(1) of the Evidence Act to sustain conviction under Section 498A of IPC, particularly when her death was neither homicidal nor suicidal but accidental. In Surinder Pal Jain’s case (Supra), the Hon’ble Apex Court found the conviction of the accused under Sections 302 and 203 of IPC, 1860 unsustainable as the same was found to be based on discrepant and improbable evidence relating to the disclosure and discovery of incriminating material namely the ornaments of the deceased. In Tarseem Kumar’s case (Supra), primacy of motive in the case based on the circumstantial evidence was considered necessary for sustaining conviction in the murder case based solely on the circumstantial evidence. In Prem Singh:Amarjit Singh’s case (Supra), husband involved in murder of his wife was given benefit of doubt for the reason of 13 Cr-Apeal-1028-2006 unreliable evidence of the witnesses in relation to the alleged ill treatment of the deceased’s wife resulting from demand for motorcycle and the evidence concerning extra judicial confession. In Lekh Ram and Brij Lal’s case (Supra), placing the burden on the accused to prove his innocence, particularly when the allegation of dowry demand remained uncorroborated and there was no evidence of torture, was considered improper. In Rajinder Singh’s case (Supra), the Hon’ble Apex Court dismissed the State’s appeal preferred against the order of acquittal recorded by the High Court of Punjab upon accepting the defence version that the deceased accidentally fell in the well and the injuries noticed on the body of the deceased could have been possibly caused during fall in a well fitted with machinery for drawing water from the depth of 70 ft. In Shaikh Maqsood’s case (Supra), the conviction of the accused under Section 302 of IPC, 1860 based on failure to explain, what he was never asked to explain was held to be bad in law. In Babu’s case (Supra), the Hon’ble Apex Court ruled that in a case wherein the appellant-accused suspected suicide by the deceased because of guilt feeling, the onus to prove its case based on circumstantial evidence lay on the prosecution and the High Court was not justified in 14 Cr-Apeal-1028-2006 emphasizing that burden was on the appellant to prove his innocence, and complete chain of circumstances leading to the hypothesis of the guilt of the accused has to be proved by the prosecution and infirmity in prosecution cannot be cured by the false defence or plea. In Jaharlaldas’s case (Supra), the Hon’ble Apex Court reiterated the need of firmly establishing the circumstances from which an inference of guilt act unerringly drawn by cogent evidence. In Hanuman Govind’s case (Supra), the Hon’ble Apex Court further reiterated the principles regarding the appreciation of the circumstantial evidence and ruled that admission or confession has to be taken as a whole. In Pushpa Ramchandra Gore’s case (Supra), this court followed the time tested principles governing the appreciation of circumstantial evidence, and found that twin circumstances motive and last seen together were not sufficient to complete the chain of circumstantial evidence. In Rambhau Kashinath Waibhat’s case, the Division Bench of this court observed that the performance of the witnesses in cross- examination vis-a-vis each other as regards a common evidence is material while appreciating their evidence. 15 Cr-Apeal-1028-2006 In Dilip Kanade’s case (Supra), non explanation of delay satisfactorily by the prosecution was considered fatal to the prosecution. 11 Genesis of the present case lies in the demise of Savita. It is, therefore, necessary to look into the causes of her death. As observed earlier, there is no direct evidence concerning the pertinent question as to how Savita died. Only fact that comes before us through the uncontroverted evidence is the taking out of the body of Savita from well for the purposes of inquest vide inquest panchanama Exh. 24. It appears from the inquest panchanama that the cause of the demise of Savita was not apparent at the time of inquest and as such her body was sent for autopsy. 12 PW-6 Dr. Ganesh Shewale performed post-postmortem examination of the body of the deceased at rural hospital at Nasik between 10.40 a.m. and 11.15 a.m. on 24.6.2004. On external examination, he found (i) rigor mortis (ii) Cutis Anserina (iii) Ulceration below right eye of 3cms x 2cms red surface and margin (iv) Ulceration on right ear lobe of 1cm x 2cms whitish. According to PW-6 Dr. Shewale, Ulceration below right eye was ante mortem injury caused less than six hours before death due to 16 Cr-Apeal-1028-2006 beating with hard and blunt surface. On internal examination, PW-6 Dr. Shewale deposed that he found right and left lung oedematous and congested and cut section showed oozing of red fluid. This he said is a sign of drowning. Internal examination done by him further revealed taking of food by the deceased as stomach contained liquid diet plenty of fluid. According to him death time lapse was more than three hours. Finally he concluded that the cause of death was terminal cardio-respiratory failure secondary to Asphyxia caused by drowning. 13 Cross-examination of PW-6 Dr. Shewale further revealed that Ulceration below right eye was not fatal or grievous injury and it could have been possible if a person forcibly fell in the well and came in contact with hard surface. However, he maintained in his cross examination that the patient died due to drowning. However, the evidence of PW-6 Dr. Shewale raises further question in respect of the drowning of the victim. 14 Inquest panchanama (Exh.24) reveals that body of the victim was taken out of the well situated in the farm of PW-2 Vasant Sanap. The evidence of PW-7 Sanjay Sangale, the I.O. presents a view of the well through the scene of offence panchanama (Exh.39) drawn by him at the 17 Cr-Apeal-1028-2006 spot in the presence of the panchas on 23.6.2004. It is true that the panchas to the panchanama (Exh.39) were not examined. However, the testimony of PW-7 Sanjay Sangale which gives the details of the well in question cannot be brushed aside solely for the reason of non examination of the panchas unless some compelling circumstances to do so are revealed in the evidence. PW-7 Sangale deposed that following the registration of ADR No.828/04 he visited the spot of incident and drew the spot panchanama (Exh.39). He deposed that it was a round shaped well with its side constructed and ringed by construction of two feet in height. He gave depth of the well as 35 feet and added that the water level was upto 20 feet and one chappal was found at a distance of 10 feet from the well. In his cross examination, he revealed that the around the well, he did not find any marks of scattering and scuffle. His cross examination further shows that the defence blamed PW-7 Sanjay Sangale of not bringing on record the papers of investigation in the said A.D.R. in order to suppress the real situation. Whereas the scene of offence panchanama is part of that investigation which followed the registration of ADR. Therefore, there is no reason to suspect the facts concerning the well-spot of the incident- coming on record during the evidence of PW-7 Sanjay Sangale. 18 Cr-Apeal-1028-2006 15 Facts concerning the well and surroundings rule out the possibilities of an accident. What remains, therefore, is the possibility of either suicidal or homicidal death. In the present case, there is no direct evidence and it is only the circumstances which have to tell the sordid tale. 16 Pertinently, the incident had occurred within two months of the date of marriage. Evidence of the mother of the victim PW 1 Rakhmabai discloses that dowry of Rs.41,000/- and utensils of Rs.35,000/- were given at the time of the marriage of their daughter Savita on 24th April, 2004 and the deceased Savita cohabited with the accused at village Dharangaon in the family comprising of father-in-law, mother-in-law and brothers-in-law after the marriage. She referred to the visit of PW 4 Yogesh to the matrimonial home of Savita for inviting Savita for mango juice party. She deposed that PW 4 Yogesh her son returned after meeting Savita who told them that Savita did not get good people and he happened to witness the beating of Savita by her in-laws - the accused nos.2 and 3 and Savita being abused by her husband accused no.1. This fact finds corroboration in the testimony of PW 4 Yogesh and the FIR Exhibit 27. It is true that PW 4 Yogesh added that all the accused were demanding Rs.35,000/- towards costs of motorcycle purchase and one golden ring. However, PW 4 Yogesh 19 Cr-Apeal-1028-2006 further qualified in his cross-examination that these facts were not disclosed by him to anybody till 25th June, 2004. It is for this reason that PW 1 Rakhmabai had only narrated what the PW 4 Yogesh had told her about the physical violence meted out to Sarita after returning home from his visit to Savita. There is, therefore, no reason to discard from the testimony of PW 1 Rakhmabai the fact she learnt from PW 4 Yogesh about the ill-treatment meted out to the deceased Savita by the accused at the matrimonial home. 17 PW 4 Rakhmabai further deposed that the deceased Savita had confirmed the fact of ill-treatment meted out to her by her husband and in- laws and the demand of Rs.35,000/- and one tola golden ring. As regards the events which took place on Tuesday, the June 15, 2004, PW 1 Rakhmabai deposed that the accused no.1 came to them to fetch Savita and had asked Savita whether the arrangements were made for the amount and the deceased Savita had replied that her parents were very poor and did not have amount to make the payment as the marriage was performed recently. She added that she had told the accused no.1 that they did not have money and when it would be available, the payment would be made and thereafter, the accused Vitthal left the place. While leaving the place, he told her 20 Cr-Apeal-1028-2006 younger daughter Savita that he would be coming on Friday. These facts find corroboration in the FIR Exhibit 27 and remain uninjured in the cross- examination. 18 PW 1 Rakhmabai further deposed about the phone call made by her to her sister PW 3 Laxmibai Khandu Kapdi staying at Chembur, Mumbai. She deposed that after the accused no.1 had left on Wednesday, the June 16, 2004, she made a phone call to her sister PW 3 Laxmibai at Mumbai and narrated the facts about the ill-treatment to her daughter and sought her advice. According to PW 1 Rakhmabai, her sister advised her not to send her daughter and would be discussing the matter in presence of four persons with the accused. 19 The factum of making the call by PW 1 Rakhmabai to PW 3 Laxmibai is tried to be brought under the shadow of doubt with the averments in the cross-examination of PW 1 Rakhmabai that she had no phone connection at her house and phone call was not made from her village. Rightly, the learned trial court dismissed such doubts with the observations regarding availability of phone facilities at variety of places spread over countryside and absence of further probe in the cross- 21 Cr-Apeal-1028-2006 examination to find out her movements at the material time and from where such phone call was made to PW 3 Laxmibai. PW 3 Laxmibai deposed that she did receive the phone call from PW 1