1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.30 OF 2010 Shakunt S/o.Annant Giri, Age-35 years, Occu-Agriculturist, R/o.Ganeshpar, Parli-Vaijnath, Tq.Parli (V), Dist. Beed APPELLANT VERSUS The State of Maharashtra RESPONDENT Smt.S.S.Jadhav, learned counsel for the appellant. Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 22/11/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present appeal, the appellant who stands convicted for an offence punishable u/s. 302 of The IPC and sentenced to suffer RI for life imprisonment and to pay fine in the sum of Rs.5,000/-, in default to suffer RI for 6 months, also convicted for an offence punishable u/s.498-A of The IPC and sentenced to suffer RI for two years and to pay fine in the sum of Rs.2,000/- in default to suffer RI for 2 months, and further convicted for an offence punishable u/s. 3 and 4 of The Dowry Prohibition Act and sentenced to suffer RI for 3 years and 1 year respectively, and to pay fine in the sum of Rs. 2 15,000/- and Rs.1,000/- respectively, in default to suffer RI for 6 months and 1 month respectively, on 16/12/2009 by the Ad-hoc Additional Sessions Judge-2 Ambejogai in Sessions Case No.7/2008, has questioned the legality and correctness of his conviction by way of filing this appeal. 2. Such of the facts as are necessary for the decision of this appeal, can be briefly stated as follows : a) One Angad Dnyanoba Sudke, P.W.No.7 was attached to City Parli Vaijanath Police Station. On 28/12/2006, one Mahadev Narayan Giri (P.W.No.1) lodged the complaint (Exh.17) at about 12.45 noon. On the basis of this complaint, an offence was registered vide CR No.245/2006 for the offence punishable u/s. 302, 498-A r/w. 34 of The IPC against the present appellant, his father Anant, his sister Satyabhama and husband of Satyabhama Manohar Puri. During the further investigation, immediately said Angad visited the place of offence i.e. the residential house of the appellant. In the presence of witnesses, he drew spot panchnama (Exh.37). From the place of offence, he seized one Jute rope (Article 6). The dead body of one female was also found lying at the spot, which is of the wife of the appellant. In the presence of panch witnesses, he drew inquest panchnama (Exh.38) of the dead body. Thereafter, alongwith the police report in proforma (Exh.66) and letter of request (Exh.67), he had forwarded the dead body of Anjana to conduct post mortem to the Rural Hospital Parli Vaijnath. The dead body was carried by 3 Police Constable Misal B.No.555. b) On the same day, at about 4.30 p.m. or so, Dr.Dinesh Kurme (P.W.No.5) attached to the Sub District Hospital, Parli Vaijnath conducted the autopsy on the dead body. The dead body was identified by Mahadev Giri (P.W.No.1) as the dead body of his daughter Anjana. While performing post mortem, he had noticed following observations. 1. Female of 25 years wearing violet blouse, white green printed saree, black petticoat and brown underwear. Yellow Metal ring ear in left nostril, thread with black and yellow metal rings in neck, two green and two yellow metal bangles in each hand, white metal chains in each lower limbs, feocal stained underwear was present. 2. The body was nourished and cold and rigor mortis were well marked all over body. There were early signs of decomposition. p.m. lividity was present on dependent parts. 3. The features were swollen, eyes were closed, pupils were dialeted. There was no fluid oozing from mouth, nostril or ears. Face was congested. Cyanosis over ear lobules was present. Tongue was central and inside mouth. 4. Lower limbs were extended. Upper limbs were 4 semiflexed. Nails were pale. P.W.No.5 had noticed following external injuries on the dead body. 1. Ligature marks present above cricoid cartilage over anterior side of neck about 17cm. long and 4 cm. broad, ligature mark was brown in colour, with petechie around it. It was going horizontal downwards towards left side of neck and broadening. 2. Tapering towards right side above two cm. broad, limiting towards left side below level of ear and towards right side over sternomastoid muscle. 3. There was no fracture on external examination or palpation. All the above mentioned injuries were antimortem injuries. P.W.No.5 had noticed following facts while doing the internal examination of the dead body. Both lungs showed evidence of pulmonary edama. pericardium was normal, heart was filled with blood. Abdominal findings were as below. There was imprint abrasions over abdominal wall just above umbilicus about 2 x 2 cm. He had opined that the death was due to asphyxia, secondary to strangulation. Accordingly the post mortem notes were prepared 5 by him, which is at Exh.44. c) On the same day, the investigation officer had recorded the statement of witnesses by name Sunderbai, mother of deceased, Ranjana sister of deceased, Balaji husband of Ranjana, Laxman, Shriram and one Jayashree. The clothes on the dead body were removed while conducting the post mortem, which were seized under panchnama (Exh.39). He arrested the appellant and others in the evening of the same day. He drew arrest panchnamas of their arrest (Exh.68 to Exh.71). On 29/12/2006 and 31/12/2006, he had recorded statements of neighbourers, residing adjacent to the house of the appellant. On 02/01/2007, viscera collected during the post mortem of the dead body was sent to Chemical Analyzer, Aurangabad alongwith covering letter. On that day, he had recorded supplementary statements of the complainant and other witnesses. On 12/01/2007, seized property during the investigation was forwarded to C.A. alongwith the covering letter. On 17/01/2007, statement of Shubhangi Giri, daughter of deceased and appellant was recorded. After completion of investigation, charge sheet was filed against the appellant and others in the Court of J.M.F.C. Parali Vaijnath. d) In due course, after passing necessary committal order, trial against the appellant and other was committed to the Court of Additional Sessions Judge, at Ambejogai. 6 e) From the record and proceeding received from the court below, it reveals that the learned Trial Judge framed the charge at Exh.8 against the appellant and others for the offence punishable u/s. 498- A r/w. 34, u/s. 304-B, r/w. 34, u/s. 302 r/w. 34 of The IPC, as well as u/s. 3 and 4 of The Dowry Prohibition Act. The appellant and others pleaded not guilty to the charge and claimed to be tried. f) Record and proceeding further shows that father of the appellant Anant Giri expired during the pendancy of the trial, hence the trial against him stands abated. g) It appears that to prove the charges lavelled against the appellant and others, prosecution has examined total 7 witnesses including father of the deceased Manohar Giri, who is also complainant in this case, mother of the deceased Sunanda, sister of the deceased Ranjana, husband of Ranjana by name Balaji, who has also acted as a panch witness to the spot panchnama and inquest panchnama, daughter of the deceased Shubhangi, Dr.Dinesh Kurme, who had conducted autopsy on the dead body of Anjana and Investigation Officer. The defence of appellant and others was that Anjana had committed suicide due to frustration as appellant was aged than her and she was not happy with her marital relations with him. Learned Lower Court did not accept the evidence of child witness Shubhangi, but accepted the medical evidence, which concluded that death of deceased is a homicidal death. As the death is a custodial death and no proper explanation was offered by the 7 appellant, as required u/s. 106 of The Indian Evidence Act, hence learned Lower Court, pleased to convict the appellant for the offence punishable u/s. 302, 498-A of The IPC and u/s. 3 and 4 of The Dowry Prohibition Act. At the same time, Satyabhama and her husband were acquitted from all the charges lavelled against them. The appellant was also acquitted from the charge of an offence punishable u/s. 304-B of The IPC. 3. Admittedly, the State had not preferred any appeal against the order of acquittal against Satyabhama and her husband Manohar. 4. Before considering the submissions of learned counsel for the appellant, and learned APP for State, it is necessary to advert to the evidence of material witnesses, which can be summarized as : From the injuries noticed on the person of deceased, Dr.Dinesh had opined that the death of deceased Anjana was caused due to asphyxia, secondary due to strangulation. It transpired in his cross examination when he was questioned, if on seeing a person getting hanged, is lifted by somebody immediately, then, it may be the case of partial hanging to which he replied that the position and direction of ligature mark does favour in hanging. These ligature marks as described in column no.17 may be due to partial hanging, but, there were imprint abrasions over the abdominal wall, which are not expected in hanging or partial hanging. The imprint abrasions over abdominal wall just above umbilicus about 2 x 2 cm as described in coloumn no.20 of the post mortem note may cause if the person 8 getting hanged is lifted forcibly and the particular part comes into contact with the thumb of the lifting person. He has also stated that he is agree with the preposition in Medical Jurisprudence by Parekh that the Ligature mark is situated over the upper part of the neck in complete hanging but it may be lower in partial hanging. According to him, the same situation is not necessary in all the cases of strangulation. When the suggestion was given to him that in the present case, skin below the ligature mark on neck was not damaged, to which he volunteers that its colour was changed by becoming brown and there was petechia around it. He has further stated that in the present case, no ligature mark was noticed at the back side of the neck. He had denied that the ligature marks noticed, which were 2 to 4 cms in width, may also cause by means of saree, and will not be possible by means of jute rope before the Court, as it is of multiple jute threads. He also denied that it is not necessary that there would be separate ligature mark of each thread to the neck. This cross examination to be considered in the light of the spot panchnama which will be discussed in the later part of the judgment. 5. It transpired in the evidence of P.W.No.3 Balaji and P.W.No.4 Ranjana that his brother in law and sister Anjana were residing in the same village, and on 28/12/2006, the appellant came to their house around 8.00 a.m. and informed that Anjana died due to heart attack. Hence, they went to the house of the appellant. They found that the dead body of Anjana was lying on the upper floor. Face of Anjana was covered with some cloth. Ranjana (P.W.No.4) removed 9 the cloth from the face of Anjana and noticed mark of rope over the neck of deceased. They were informed that the funeral to be performed at village Ujani, the native place of appellant. They were further told to inform this fact to the parents of Anjana. After seeing the marks on the neck of Anjana, they suspect some foul play, hence P.W.No.3 informed to his in laws to come to Parali instead of going to Ujani directly. Accordingly, in laws of P.W.No.3 i.e. Manohar father of deceased (P.W.No.1) and Sunanda, mother of deceased (P.W.No.2), alongwith other relatives came to Parali. As P.W.No.3 is also panch witness to the spot panchnama, he identified Article 6, the bunch of jute rope, as recovered and found lying near the dead body of Anjana. In the cross examination of both these witnesses, they denied the suggestion given to them that when they reached to the house of appellant, they noticed that several persons had gathered at the residence of appellant. According to them, the dead body of the deceased was found on the upper floor, and the persons gathered at the residence of the appellant were on the ground floor. They have denied that the persons gathered there, informed them that the dead body is brought from kitchen in the bedroom. According to them, they visited the kitchen on the same day. They denied that they saw one saree, tied to the roof of the wooden bar in the kitchen, which they have untied. They have denied that persons gathered there informed them that Anjana hanged herself by means of saree to the roof in the kitchen. They further denied that the persons gathered there informed that they thought that Anjana may be alive, hence they brought her down by un-tying the saree and then brought her in 10 the bedroom. Both of them denied the suggestion that Anjana was fed up with her marital life as she married with the aged person i.e. the appellant. They also denied that Anjana was complaining to P.W.No.4 that she was not satisfied in her marital life with appellant. In addition to this evidence, it had also came in the evidence of P.W.No.3 that the dowry of Rs.30,000/- was fixed at the time of marriage of appellant with Anjana and Rs.15,000/- were paid as dowry at the time of marriage and Rs.15,000/- were remain to be paid. Initially for 2 years, Anjana was treated properly, but thereafter, appellant and in laws of Anjana harassed and illtreated her for the payment of balanced dowry, for which she was complaining to them during her visits to their house. 6. P.W.No.1 Manohar Giri is the father of deceased, while P.W.No.2 is the mother of deceased. It transpired from their evidence that at the time of marriage of Anajana with appellant, Rs.30,000/- were agreed as dowry with one tola gold. Rs.15,000/- and one tola gold was paid to the appellant at the time of their marriage and balance of Rs.15,000/- to be paid later on. According to them, for the initial period of 2 years, Anjana was treated properly by the appellant and his parents. During this period, she gave birth to Shubhangi, P.W.No.6. Thereafter, she was illtreated on account of non payment of balance dowry to the appellant and his parents. They have quoted the instances like deceased Anjana informed about this harassment to her during her visit of 3rd Dipawali Festival as well as on the 11 festival of Nagpanchami, when she was brought by her parents to her parental home. Soon before the incident, there was marriage of brother in law of the deceased. At that time, deceased was brought to her parents house. Deceased was told to provide gold ring of 5 gms. to her husband, which was not fulfilled, hence she was harassed by the appellant. Both of them further deposed that they have paid Rs.10,000/- to the appellant after harvesting of Udad crop in the presence of acquitted accused Satyabhama and her husband. In the month of May 2004, marriage of their youngest daughter Jayashree was performed. At that time, deceased told them to pay at least at this juncture the balance amount of Rs.5,000/.- to the appellant alongwith gold ring of 5 gms, but as it was not paid, she was harassed by the appellant. Certain omissions are brought on record in the cross examination of these witnesses about dowry was settled to the tune of Rs.30,000/- and one tola gold, out of which Rs. 15,000/- were paid to the appellant at the time of his marriage and it is agreed that the balance dowry of Rs.15,000/- to be paid later on. The instances which are quoted in the evidence before the Court about the complaint by the deceased on the ground of non payment of dowry, were not disclosed by them either in the complaint or in their statement recorded during the investigation. They have further admitted in their cross examination that Satyabhama and Manohar Giri were originally resident of Patti Wadgaon, where they have their immovable property. Manohar retired from his services in the year 1997 and since his childhood suffering from paralysis. It is denied that Manohar can not walk without any support. They have admitted 12 that Satyabhama was suffering from arthritis, but denied that she can not move independently. They have admitted that they were residing in the partitioned house in the said plot. They have admitted that Anjana was the only lady member in the family of the appellant and managing all household work. They have admitted that all the luxrious items were available in the house of appellant. Father of the appellant was having sufficient income from the agricultural land. They have further admitted that the built of Anjana was stronger than that of the appellant. In the further cross examination, they have admitted that after the marriage of deceased with appellant, Anjana had not visited the house of her parents on account of first two Dipawali festivals, but for the first time, she visited the house of parents after 3rd Dipawali festival alongwith daughter Shubhangi. Even though they have admitted that after the birth of Shubhangi, Anjana did not conceive, but later on it is brought on record that soon before the incident, Anjana was aborted. About the occurrence of the incident, they have admitted that there is bedroom of deceased and appellant alongwith kitchen on the upper floor, with all the facilities. There is landline telephone facility at the residence of appellant. They have denied that Anjana was not happy and satisfied in her married life. Apart from this, in the cross examination of Sunanda, the mother of the deceased, she denied that deceased was complaining to her that the appellant was unable to give sexual satisfaction to her, and on that count, she was nervous. Both the parents of deceased denied the suggestion that deceased Anjana had committed suicide on account of performance of her 13 marriage with the aged person i.e. the appellant. 7. In the background of this material evidence adduced before the lower court, we have heard learned counsel for the appellant followed by the submissions of learned APP for State. It is urged across the bar on behalf of the appellant that a specific defence is raised by the appellant that Anjana had committed suicide, which fact supports from the cross examination of Dr.Dinesh, who has conducted post mortem on the dead body of deceased Anjana. According to learned counsel for appellant that the symptoms of hanging and symptoms of strangulation as discussed in the medical jurisprudence, were found on the dead body of the deceased. According to learned counsel for appellant, the evidence laid before the lower court is not sufficient to hold the appellant guilty for the offences for which he was convicted in the Sessions Case. It is also urged across the bar that the conviction of the appellant is based on the evidence of the material witnesses, which is to be discarded, hence prayed to allow the appeal. As against this, it is urged by the learned APP that on the face of it, this is a case of custodial death. Marks of strangulation were noticed on the neck of the deceased, not only by P.W.No.1 to P.W.No. 4, but also noticed by the Medical Officer, who had conducted autopsy on the dead body of the deceased Anjana. The theory of suicide put up to the prosecution witness no.1 to 4 is not supported by the medical evidence nor supported by the circumstantial evidence, which is to be gathered from the spot, and lastly as the death of the deceased was occurred, while she was in the company of 14 the appellant, i.e. her death is a custodial death. No proper explanation is coming forth as to how the death of the deceased was occurred as required u/s. 106 of The Indian Evidence Act, hence the appeal to be dismissed. 8. Considering these submissions across the bar, the fact is clear that the death of the victim Anjana was occurred while she was in the custody of appellant/her husband. Firstly, it is necessary to decide whether the death of the deceased is a homicidal death or it is a suicidal death, as the defence is taken by the appellant/husband of the deceased. While discussing the evidence of Dr.Dinesh, the Medical Officer, he has opined that the death of the deceased was caused due to asphyxia, secondary to strangulation, which according to him, is a homicidal death. There is no dispute that the death of the deceased is an un-natural death. Marks of strangulation were noticed on the neck of the deceased. The theory which is put up in the cross examination of the prosecution witnesses, particularly in the cross examination of P.W.No.3 and 4 that it was informed to them by the persons gathered at the residence of the appellant that dead body of the deceased, which was in hanging condition was brought in the bedroom under the hope that she may alive. This cross examination require to be tested in the light of the facts mentioned in the spot panchnama, which is proved in the evidence of P.W.No.3 Balaji. On clear perusal of the spot panchnama, Exh.37 and the description and details of the kitchen recorded therein, it is nowhere mentioned that there is any beam or bar near the roof or to 15 the roof of the kitchen room where the alleged suicide was committed by tying the saree to that bar or beam in the kitchen room. This absence of bar or beam in the kitchen room speaks a lot to disbelieve the defence that saree was tied to the beam and then deceased hanged herself. Secondly, if somebody has to commit suicide by tying the saree to the beam and the knot to be put in the neck, in that situation, some stool or chair to be used to stand. On clear reading of the said panchnama, we do not find anywhere the existence of chair or stool either in the kitchen or in the bedroom. Thus the situation at the spot do not find support to the defence put up in the cross examination of P.W.No.3 and P.W.No.4 that Anjana had committed suicide. Thus it is to be inferred that the death of the deceased Anjana is a homicidal death and not suicidal death. One more fact require to be considered as a nature of human psychology. The alleged incident was occurred in the matrimonial house of deceased i.e. at the residence of appellant. Nobody will commit suicide unless life of that person became miserable and not tolerable due to harassment or illtreatment. No circumstances are brought on record that deceased was fed up with her life and no alternate remain with her than to commit suicide It is to be noted that suggestions were given to P.W.No.1 and P.W.No.2 that deceased was not happy in her marital life. Specific suggestion was given that deceased was not sexually satisfied from her husband, the appellant and hence committed suicide. It is to be noted that marriage of deceased was performed with the appellant in the year 1999 while Anjana expired in the month of December 2006. Before that she had 16 delivered Shubhangi, who is about 7 years old at the time of alleged incident. Prior to the incident, Anjana was aborted. In the circumstances, it can not be inferred that deceased was not happy in her marital life, which forced her to commit suicide. Considering these aspects, the defence put up by the appellant that deceased Anjana had committed suicide, is to be discarded. 9. As the death of the deceased is established as a homicidal death and not suicidal death, and the death occurred while she was in the custody of the appellant, then u/s. 106 of The Indian Evidence Act, burden lies on the appellant to give proper explanation about this homicidal death of the deceased. It is brought on record by the defence that