crapl576.09 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 576 OF 2009 Mangal s/o Chhagan Koli, Age 27 years, Occ. Labour, R/o. Loni, Tq. Chopda, District Jalgaon ...Appellant Versus The State of Maharashtra, Notice to be served on A.P.P. High court of Judicature at Bombay Bench at Aurangabad ...Respondent ..... Mr. M.N. Deshmukh, advocate for the appellant Mr. K.G. Patil, A.P.P. for respondent ..... CORAM: NARESH H. PATIL AND A.V. POTDAR, JJ. DATED: 11TH MARCH , 2011 JUDGMENT (PER POTDAR A.V. J.):- 1 The appellant, who stands convicted for the offence punishable under Section 302 of I.P.C. was sentenced to suffer for life imprisonment and to pay fine in the sum of Rs.500/-, in default, to suffer further R.I. for six months in Sessions Case No. 47 of 2007, by judgment and order dated 14.10.2009, by the Adhoc Additional Sessions Judge, Amalner, by the present appeal, questioned the crapl576.09 -2- correctness of his conviction and sentence. 2 Such of the facts, as are necessary for just decision in this appeal, can be summarized as follows:- A) In the early hours on 20.6.2007, Mangal Chhagan Koli, the appellant herein, had lodged information with Adavad police station, which is recorded by Kacharu Bhanudas Wankhere (PW 11). On the basis of this information, received in the police station, an A.D. was registered vide A.D. No.12 of 2007. Inquiry in the said A.D. was conducted by PW 11 Kacharu Bhanudas Wankhere. During the said inquiry, he visited the place of scene of offence at Loni, which is residential house of appellant Mangal. During his visit to the residential house of Mangal, he noticed the dead body of one female was lying there. The said dead body of female was identified by the appellant as the dead body of his wife by name Anita Koli. Then in presence of Anita Shyam Sonawane (PW 3) and other panch witnesses, P.W.5 drew inquest panchnama (Exh.42) on the dead body. Thereafter he drew spot panchnama (Exh.40) in presence of Sudhakar Krishna Koli (PW 2) and other panch witnesses. While drawing spot panchnama, he collected one black colour cotton rope having length of about 7 ft, from the place of offence under the said spot panchnama at Exh.40. Thereafter, the dead body of deceased crapl576.09 -3- Anita Koli was referred to for post mortem to Primary Health Centre, Adavad. B) Dr. Dattatraya Kalidas Birajasdar (PW 10) was then attached to PHC Adavad, conducted an autopsy on the dead body of Anita on 20.6.2007. During the course of post mortem, he noticed following external injuries:- i) Complete ligature mark at the level thyroid cartilage which encircles the neck completely, which is horizontal of size 36x1x2 cm. ii) Ligature mark below the level of thyroid cartilage encircles completely of size 33x1x3 cm iii) Abrasion and enchymossis around the marks seen. iv) Bleeding through nose present While conducting the autopsy, he noticed verticle of larylgal cartilage. Accordingly, he issued post mortem report at Exh.52. He has opined that cause of death of deceased due to complete strangulation causing axpysia and vegal inhibition. He has further opined that ligature mark suggests about the strangulation by some other person. He has further opined that injury in column No.20 of the autopsy report can be possible when pressure is applied at the time of crapl576.09 -4- strangulation and when there is fracture of lyrangl cartilage. Thus, according to him, these injuries caused due to strangulation. He has also opined that these ligature marks can be possible due to rope (Article 1) which is seized during the course of investigation and produced before the court. C) On 20.6.2007, Rajnibai Santosh Patil, mother of deceased Anita lodged complaint Exh.38. This complaint was recorded by PW 11 Shri Wankhere. On the basis of this complaint, he registered the crime bearing No. 49 of 2007 for the offences punishable under Sections 498-A, 302, 504, 506 r.w. 34 of I.P.C. Investigation in the said crime was handed over to A.P.I. Shri Budhwant. D) During the course of investigation carried out by Ravindra Raghunath Bughwant (PW 12), he collected papers of enquiry in the said A.D. from PW 11 Mr. Wankhere. On the same day, he arrested the appellant-accused and three others. At the time of arrest of the appellant and others, he prepared arrest panchnama at Exh.59 to Exh. 61. During the investigation, photographs of dead body of Anita were taken before autopsy was conducted on the dead body. On the same day following to the arrest of the appellant, one mobile of Motorola company (Article 2) was seized from the possession of the appellant under panchnama Exh.62. During investigation, he recorded crapl576.09 -5- statements of certain witnesses. On completion of investigation, he filed charge sheet in the court of learned J.M.F.C. Chopda. E) On committal of the trial to the court of Sessions, charge came to be framed against the appellant and three others at Exh.26 for the offences punishable under Sections 498-A, 302 r.w. 34 of I.P.C. The appellant and others pleaded not guilty to the charge and claimed to be tried. Record and proceedings received from trial court reveal that the prosecution in all have examined 12 witnesses to substantiate the charge levelled against the appellant and others. It appears that the defence of the appellant before the lower court from cross examination of the police officials that on the earlier day quarrel took place between the deceased and appellant on account of playing of C.D. player. On appreciation of evidence led by the prosecution, the learned trial court pleased to acquit the other three persons, who were arrested alongwith the appellant in connection with the crime from all offences. While the appellant was convicted by the learned trial court for the offence punishable under Section 302 of I.P.C. The said conviction and sentence is the subject matter of the present criminal appeal. Admittedly, the State have not preferred any appeal against the acquittal of the remaining accused. Hence, that order of acquittal reaches its finality. crapl576.09 -6- F) Considering the record and proceedings received from the trial court, it reveals that case of the prosecution rests on circumstantial evidence. 3 For better appreciation of submissions of the learned counsel appearing for the appellant and that of learned A.P.P. appearing for the State-respondent, it is necessary to advert to the evidence of the material witnesses examined by the prosecution during the trial before the lower court. 4 It transpired from the evidence of Rajnibai Santosh Patil (PW 1) that she is mother of deceased Anita. Deceased Anita was married with the appellant about one and half years prior to the date of incident, which took place in the intervening night of 19.6.2007 and 20.6.2007. She has further stated that after marriage of deceased Anita with the appellant, she was residing with the appellant accused in her matrimonial house situated at Loni, Tq. Chopda, District Jalgaon. She has further stated that after marriage of deceased Anita with appellant, during initial period, she was properly treated by the appellant and other relatives of the deceased. Thereafter, they started to give ill-treatment to deceased Anita on account of non fulfillment of demand of Rs.50,000/- to redeem the landed property mortgaged by the appellant. She has further stated that during visits of deceased crapl576.09 -7- Anita to her paternal house at Bijagaon, Anita used to inform about harassment caused to her. She has also stated that Anita used to telephone her about ill-treatment given to her. She has further stated that deceased Anita and appellant had been to Bijagaon in Adik Mas (locally known as Dhondyacha Mahina). At that time also the appellant had demanded money from her. But due to financial crises, the complainant was unable to satisfy the demand. After their return to the matrimonial house of deceased, the deceased informed by telephone message to her that the appellant had assaulted on her. Appellant also telephoned her that if his demand is not fulfilled, then he will continuously assault deceased. She has further stated that she has requested the appellant not to assault deceased Anita and she will visit their residence alongwith her brother Shantilal. She has further stated that on the date of incident, Shantilal her brother (PW 5) had received telephone message about demise of deceased Anita and they were told to go to Loni. She has further stated that accordingly she alongwith her son Sanjay, brother-n-law Sudhakar had been to Loni. At Loni, they came to know that dead body of Anita was already taken to PHC Adavad and dead body was lying in the mortuary. She has further stated that when she saw the dead body, she noticed the marks of hanging at two places on her neck. She has also noticed swelling to the ear and injuries on her chest. Thereafter, she lodged report Exh.38 in Adavad police station. crapl576.09 -8- It transpired from her evidence that Loni is at a distance of about 30 to 35 minutes by public transport. She further stated in her cross examination that she is unable to give particulars about the date, day and month about visits of appellant to her house as well as of Anita. But she confirmed that the last visit of Anita was in the month locally known as Dhondyacha Mahina. She has further stated in her cross examination that deceased used to telephone her from public telephone booth on the telephone of Vijay Gaikwad (PW 4). She has also shown her inability to give particulars about the date, day and time of the calls received from deceased. On careful perusal of the entire cross examination, we do not find that the appellant has disputed the injuries noticed by this witness on the person of deceased Anita when this witness saw deceased in the mortuary. We also do not find any challenge to the evidence given by this witness about the message received by her brother Shantilal for the demise of deceased Anita. 5 The prosecution have examined Vijay Jijabrao Gaikwad (PW 4) on the point of deceased used to telephone to contact the complainant, her mother, Rajnibai on the telephone installed at his residence. He has stated that on 19.6.2007, a telephone of deceased Anita was received at his residence for her mother PW 1 Rajnibai. Accordingly, he called Rajnibai at his residence to attend the said call. crapl576.09 -9- He has further stated that he had heard conversation of complainant on telephone requesting somebody not to assault deceased Anita and they will come to their residence on the following morning. He has also stated in his evidence that on 20.6.2007, a telephone message was received on the telephone at his residence from Loni informing PW 1 about death of Anita. He has stated that when complainant received phone call, she was weeping. He has also admitted in his cross examination that he is unable to give particulars of date, day and time when telephone calls were received from deceased for her mother. He had also admitted that directly he had not talked with deceased on the phone except to request the complainant to attend the calls, as the calls are received from the deceased. At this juncture, we have taken a note of the fact that even though this witness has admitted that he is unable to give particulars about date, date and time as and when Anita gave calls on his telephone for her mother, still the evidence of this witness about call received on 19.6.2007 on his phone from deceased Anita absolutely was not shattered in his cross examination. So also the message about death of Anita was also communicated on his phone was also not shattered in his cross examination. 6 The prosecution have also examined Shantilal (PW 5), brother of complainant, maternal uncle of deceased, who has given evidence crapl576.09 -10- on the similar lines about harassment to deceased Anita at the hands of the appellant for non satisfying of his demand of Rs.50,000/- by the complainant. In addition to that he has stated that one month prior to the incident, he also received telephone message at his residence from deceased complaining about harassment to her at the hands of the appellant. He has further stated that on 19.6.2007 at about 9.30 p.m. or so, he received telephone message from complainant about the assault by appellant to deceased. He has further stated that he had informed complainant to wait till next day morning and shown his willingness to accompany the complainant to the house of the appellant. He had also received telephone message on 20.6.2007 about death of Anita. He has further stated that on receipt of said message, he had been to matrimonial house of Anita, where he also learnt that dead body of Anita was shifted to PHC Adavad. He has also stated that when he saw dead body of Anita in the mortuary, he noticed marks of strangulation on her neck, which were visible with naked eyes. Omissions were put to this witness in the cross examination that he has not stated in his statement before the police that deceased used to phone him at his residence about harassment by the appellant on account of non fulfillment of demand of Rs. 50,000/-, the deceased had been to the house alongwith the remaining accused at Chorgaon, at that time, one of the accused told Anita to demand amount from him, he used to receive phone call from Anita crapl576.09 -11- about mental and physical torture to her from the appellant, he and maternal uncle of the appellant decided to visit Loni in connection with harassment and ill-treatment to deceased at the hands of the appellant, on 19.6.2007 he received telephone message from the complainant about assault by appellant to Anita. 7 The prosecution have also examined Shantaram Mahadu Koli, husband of maternal aunt of deceased on the aspect of ill-treatment and harassment to deceased at the hands of the appellant on account of non fulfillment of illegal demand of the appellant. As the appellant and others were acquitted from the charges of offence punishable under Section 498-A, it would be appropriate for us not to discuss the evidence of this witness. 8 Apart from these witnesses, prosecution have also examined Anita Shyam Sonwane (PW 3), panch witness on the inquest panchnama, through whom the prosecution have proved inquest panchnama. Internal page 3 of inquest panchnama at Exh.42 shows that at the time of inquest, encircled marked by rope/marks of strangulation were noticed at the two places on the neck of deceased. There is no challenge to the contents of the inquest panchnama, as these contents of inquest panchnama matched with injury mark noticed on the person of the deceased by medical Officer D.K. crapl576.09 -12- Birajasdar. 9 Prosecution have also examined Sudhakar Krishna Koli (PW 2) through whom prosecution have produced memorandum of scene of offence at Exh.40. Memorandum of scene of offence indicate that the death of deceased Anita occurred in the rear side room of their residential premises. No chair, stool or tin was noticed at the place of scene of offence. The height of roof in that room is at the distance of 7 ft 3 inches. This fact noticed in the panchnama of scene of offence is not disputed by the appellant in the cross examination of this witness. 10 We have heard the learned counsel for the appellant followed by the submissions of learned A.P.P. appearing for the State. We have also perused the judgment of the learned trial court. During the course of submissions, it is urged by the learned counsel for the appellant that even though by examining PW 10, Dr. Dattatraya Birajasdar, prosecution have brought on record that the death of deceased is an unnatural death, but according to the learned counsel for the appellant, this unnatural death is suicidal death. Per contra, according to the learned A.P.P. for the respondent State, it is a homicidal death. To prove the offence punishable under Section 302, it is the requirement of law that the prosecution have to prove that death of deceased is homicidal death. Admittedly, at the time of occurrence of said incident, crapl576.09 -13- other than the appellant and deceased, none was present in the residential premises, where the incident took place. In such situation, the Court is dependent upon the medical evidence adduced during the course of trial, which we have already adverted. Against column 1.8 of the post mortem report at Exh.52, the Medical Officer, who has conducted autopsy have drawn picture of the head of deceased showing the injuries marked to the neck of the deceased which is helpful to decide whether the death of deceased is suicidal or death of deceased is homicidal death. 11 In the commentary of Medical Jurisprudence and Toxicology, by Modi in its 23rd Edn. in Chapter 17, the explanation is given in tabular form about marks, feature of differences between hanging and strangulation. For clarity, it can be reproduced as follows Hanging Strangulation 1 ----- 1 ----- 2 ----- 2 ----- 3 ----- 3 ----- 4 Neck-Stretched and elongated in fresh bodies 4 Neck-Not so. 5 ----- 5 ----- 6 ----- 6 ----- 7 Ligature mark- Oblique, non- continuous placed high up in the neck between the chin 7 Ligature mark- Horizontal or transverse continuous, round the neck, low down in the crapl576.09 -14- and the larynx, the base of the groove or furrow being hard, yellow and parchment- like neck below the thyroid, the base of the groove or furrow being soft and reddish. 8 ----- 9 ---- 9 ------ 9 ------ 10 ----- 10 ------ 11 Carotid arteries, internal coats ruptured in violent cases of a long drop. 11 Carotid arteries, internal coats ordinarily ruptured. 12 ----- 12 ------ 13 Fracture-dislocation of the cervical vertebrae- Common in judicial hanging 13 Fracture-dislocation of the cervical vertebrae-Rare On careful perusal of the evidence given by PW 10 Dr. Dattatraya Birajsdar about his observation about external as well as internal injuries in his post mortem report Exh.52 coupled with the injuries noticed on the neck of deceased by panch Anita Sonwane against column No.14, noticed two encircled marks of strangulation to the neck of deceased. If this medical evidence scanned with the distinction given by the expert as mentioned in tabular form (supra) we have no hesitation in our mind that death of deceased is a homicidal death and not a suicidal death. 12 At this stage, we are making it very clear that in this judgment we are restricting ourselves about the judgment of the trial court in crapl576.09 -15- respect of offence of murder whether committed by the appellant or not? 13 Once it is established that death of deceased Anita is homicidal death and not suicidal death, then further question required for consideration as to whether who is responsible for this homicidal death and particularly whether the appellant is responsible for this homicidal death. At this juncture, we are required to take a note of the fact that the relations between the appellant and the deceased interse of husband and wife is not under dispute. It is also not under dispute that in the intervening night of 19.6.2007 and 20.6.2007, deceased was in the company of the appellant, as deceased is wife of appellant. Under Section 106 of Indian Evidence Act, once it is established that death of deceased Anita took place while in the lawful custody of appellant, then it is for the appellant to explain as to how death of deceased is caused and as to how the incident is occurred, as it is within the exclusive knowledge of the appellant. As the case rests on the circumstantial evidence before proceeding further, these circumstances can be formulated as follows:- i) The appellant and deceased are husband and wife. ii) Death of deceased occurred during intervening night of 19.6.2007 and 20.6.2007 while deceased was in the crapl576.09 -16- lawful custody/company of the appellant. iii) The death of deceased is homicidal death. iv) A false report was lodged by the appellant with police station that deceased has committed suicide. 14 We have already came to the conclusion that death of deceased is homicidal death. It transpired from the evidence of the Investigation Officer as well as stand is taken before the trial court as well as before this court by the appellant that death of deceased is suicidal death, as according to him, deceased had committed suicide. It is tried to urge before the court that the prosecution failed to establish motive behind crime. It is one of the requisite ingredient to complete the chain but this argument cannot be accepted, as it is also settled principle of law that if there is cogent and sufficient evidence to link the appellant accused with the charge with which the appellant- accused is facing, in such case, failure to establish the motive behind the crime is not fatal to the prosecution. 15 From the spot panchnama, it is clear that height of the roof of the room is 7 ft. 3 inch from ground level. Death due to strangulation is established by the prosecution. It is also opined by the doctor who crapl576.09 -17- have conducted autopsy that marks of strangulation noticed on the neck of deceased are not possible unless strangulation caused by another person. In other words, marks of strangulation are not showing that death is suicidal death. At the same time, the contents of spot panchnama are very material on the points, i) No chair, no stool or no tin were found in the room where incident occurred, ii) even though it was conveniently urged that during the night hours quarrel took place between deceased and the appellant on account of playing of C.D. player. However, the spot panchnama Exh.40 do not reflect finding of any C.D. player in any of the room of residential premises of the appellant, where incident occurred. To explain these defences, taken by the appellant and most important aspect in answer to question Nos. 42, 43 and 44 in his statement recorded under Section 313 of Cr.P.C., the appellant has nowhere taken these defences in his statement recorded under section 313 of Cr.P.C. 16 In substance, cause of homicidal death was not explained by the appellant as required to explain under Section 106 of Indian Evidence Act, the cause behind this act as put to the investigating Officer is not corroborated, as C.D. Player was not found at the residential premises of the appellant. Evidence about incident in the earlier night on 19.6.2007 as stated by PW 1, PW 4 is not challenged/shattered in the cross examination of these witnesses and lastly false information was crapl576.09 -18- given to the police station by the appellant, complete the chain of circumstance, which points out that the appellant and the appellant only is the author of injuries caused to the deceased resulted into her death and no other inference to be drawn from circumstantial evidence on record. In view of this discussion, we do not find any fault in the judgment and order, passed by the learned trial court thereby convicting the appellant for the charge proved, as the same does not require any interference at the hands of this Court. 17 In the result, appeal fails and accordingly stands dismissed as the same is without any merit. *****