1 Cri.Appeal No.184 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 184 OF 2010 Achyut Madhavrao Dhore, Age : 38 years, Occupation - Agriculture, R/o Babhulgaon, Tq. Basmath, Dist. Hingoli ..APPELLANT (Orig. Accused No.1) VERSUS The State of Maharashtra ..RESPONDENT Mr Joydeep Chatterji, Advocate for the appellant; Mrs S.D. Shelke, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 20th June, 2011 ORAL JUDGMENT (PER P. V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.2,000/-, in default of which to undergo further R.I. for two years, by the Additional Sessions Judge, Basmatnagar, by judgment dated 11.5.2007, in Sessions Trial No.14 of 2005, by this appeal questions the correctness of his conviction and sentence. 2 Cri.Appeal No.184 of 2010 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus :- P.W.5 P.S.I. Mirza Wahab Baig, who was attached to the Basmath police station, received the report of one Dnyandeo on 27.12.2004 at Exh.37. On the basis of the said report he registered A.D. No.34 of 2004. He accordingly visited the scene of the offence and drew the scene of the offence panchnama at Exh.23 in the presence of panch witnesses. The inquest panchnama of deceased Gangasagar came to be drawn at Exh.25. Clothes of deceased came to be seized in the presence of witnesses at Exh.26. Upon his arrest, clothes of the appellant came to be seized vide seizure memo at Exh.27. Dead body of deceased Gangasagar was referred for post mortem examination and post mortem came to be performed by P.W.6 Dr. Manik Masare. P.W.6 Dr. Manik Masare noticed the following external injuries :- (1) Abrasion on right forearm, lateral aspect, 1/2" x 1/2", irregular; (2) Abrasion on left forearm, lateral aspect, 1/2" x 1/2", irregular, (3) Abrasion on right knee joint region, lateral aspect, 1/2" x 1/2", irregular, (4) Ligature mark brownish in colour, about 3/4" in width around neck, the encircling neck completely below thyroid cartilage 3 Cri.Appeal No.184 of 2010 He opined that the injuries were ante mortem and further opined that cause of death was due to cardio respiratory arrest due to asphyxia due to strangulation. On the next day brother of deceased had lodged a complaint at Exh.29, on the basis of which an offence vide Crime No.223 of 2004 was registered under section 302 read with sec. 34 of the Indian Penal Code against the appellant and original accused no.2. The seized property was referred for post mortem examination along with the requisition at Exh.40. The accused was referred for examination and the certificate of examination of the appellant is at Exh.41. The post mortem report is at Exh.42. Further to the completion of investigation, a charge- sheet against the appellant and original accused no.2 came to be filed. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.2 framed charge against the appellant and original accused no.2 for offence punishable under section 302 read with sec.34 of the Indian Penal Code and under section 498-A read with sec. 34 of the Indian Penal Code. Both the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined six witnesses. The Trial Court, upon appreciation of the evidence acquitted original accused no.2 for offence punishable under section 302 and 498-A of the Indian Penal Code while convicted the appellant for offence punishable under section 302 of the Indian Penal Code only, acquitting him of the offence punishable under section 498-A of the Indian Penal Code. 4 Cri.Appeal No.184 of 2010 4. Before we deal with the submissions advanced before us by Shri Joydeep Chatterji, learned Counsel for the appellant and the learned A.P.P. for the State, it would be useful to refer to the evidence of the prosecution witnesses. 5. P.W.1 Anandrao, step brother of Gangasagar states that Gangasagar was married to the accused in 1991 and was not treated properly as the appellant was insisting on Gangasagar for demanding her share in the property and, therefore, used to quarrel with her. P.W.1 Anandrao further states that the appellant also used to quarrel with him for partitioning the property and giving share to Gangasagar. The appellant was residing with the deceased in a house situated in the field of his uncle Annarao Dhore. On 26.12.2004, at about 7.00 to 8.00 p.m., P.W.1 Anandrao had received a telephone call from the elder brother of the appellant, namely Dnyandeo that deceased had died due to hanging. Anandrao, therefore, went to Babhulgaon police station but learnt that the dead body had been brought to the Rural Hospital, Basmath. On seeing the dead body he noticed external injuries on the hands, leg, head and back. On the next day, after the post mortem was conducted, a report came to be lodged by Pandit, son of P.W.1 Anandrao in the police station at Basmath at Exh.29. In cross-examination P.W.1 Anandrao has admitted that the deceased was maintained well initially for about one year after the marriage. The deceased had given birth to two sons and a 5 Cri.Appeal No.184 of 2010 daughter. He has further admitted that the deceased had come to his house 4 to 5 days prior to the incident and the deceased had disclosed about the illicit relations between the appellant and the dispute on account of it. He has admitted that parents of the appellant were not informed that the appellant was illtreating deceased Gangasagar and demanding partition of the ancestral property. 6. P.W.2 Ramesh states about the illicit relations between the appellant and the original accused no.2 and of the quarrels between the deceased and the appellant. He states about being informed by Dnyandeo about the death of deceased and accordingly going to her house. In cross-examination he has admitted that when he had gone to the village of deceased, he had learnt about the illicit relations between the appellant and original accused no.2. An admission is elicited from him in cross-examination, which reads thus :- "I came to know that at the time of incident, the accused no.2 was present in the house of accused no.1." 7. P.W.3 Sakharam, a resident of the same village as that of the appellant, states that on the day of the incident at about 12.30 in the afternoon, the appellant and accused no.2 were sitting in his land by concealing themselves in the cotton crop. On being questioned by him both of them went away. After some time, while he was going to his 6 Cri.Appeal No.184 of 2010 house from the field, he had heart loud music from the house of the accused which was adjoining the road. One boy, namely Abbas, who was standing there, informed him about a quarrel in the house of the appellant. At about 4.00 p.m. while he was returning to the field he had heard the loud sound of music. At about 6.00 p.m. when he was going back from his field to his house, he saw some ladies weeping and went towards the house of the accused and had noticed the deceased hanging. In cross-examination it has been elicited that the appellant and accused no.2 were concealing themselves in the cotton crop because of their illicit relations. Further admission is elicited that the accused thereafter went towards the village. He has further admitted in cross- examination that he was knowing the illicit relations between the appellant and accused no.2 since two years prior to the incident. An admission is elicited in the cross-examination that the deceased had told him about dispute between her and the appellant on account of the illicit relations of the appellant and accused no.2. 8. P.W.4 Datta, cousin of the deceased Gangasagar also states about Gangasagar being illtreated on account of demand for her separate share. In cross-examination he has admitted that on 2 or 4 occasions he had advised the accused to behave properly. 9. P.W.6 Dr. Manik, by referring to the injuries has opined that deceased had died as a result of cardio respiratory arrest due to asphyxia 7 Cri.Appeal No.184 of 2010 due to strangulation. In cross-examination he has admitted that ligature mark is possible in cases of hanging as well as in cases of strangulation. This witness has, however, volunteered that a complete ligature mark encircling the neck is not possible in case of hanging. He has lastly admitted that the cause of death in his post mortem notes is possible if a person commits suicide by hanging. 10. Mr Chatterji, learned Counsel for the appellant has urged before us that the prosecution has utterly failed to establish that there were illicit relations between the appellant and original accused no.2 and in the light of the admission of P.W.6 Dr.Manik Masare, that death was possible on account of hanging, the appellant is entitled to be given the benefit of doubt. The learned A.P.P. has supported the findings recorded by the Trial Court. 11. Evidence of P.W.3 Sakharam clearly indicates that on the day of the incident the appellant was present in the village. In fact, he along with accused no.2 were concealing themselves in the cotton crop. P.W.3 Sakharam further states that thereafter they had gone towards the village. In the afternoon when P.W.3 Sakharam was going to his house he had noticed loud music from the house of the accused. The scene of the offence panchnama shows that a C.D. player was found in the house of the appellant. P.W.6 Dr. Manik Masare has clearly specified that death of deceased Gangasagar was on account of strangulation. Merely 8 Cri.Appeal No.184 of 2010 because he had stated that in cases of death by hanging the cause of death i.e. cardio respiratory arrest due to asphyxia would be present, would not mean that death of Gangasagar was on account of hanging. He has clearly stated that in case of hanging the ligature mark would not be complete encircling the neck. In such circumstances, therefore, according to us the prosecution has established that deceased Gangasagar had died on account of asphyxia due to strangulation. Coupled with this, the loud music coming from the house of the appellant would clearly indicate that an attempt was made to play loud music in order to camouflage the shrieks or the cries for help of the deceased. In any event, since this is not suicide and there were external injuries on the person of the deceased would clearly indicate homicidal death. In such circumstances, therefore, the appellant/accused ought to have offered some explanation. The appellant/accused has pleaded denial. The appellant also does not claim that he was not present in the village at the time deceased had died. There is nothing in the evidence which would indicate that any intruder had entered the house and had committed the crime. The appellant and the deceased along with their children were staying in the house. Apart from the appellant no one had any access and there is nothing to indicate that any one else had intruded and had killed the deceased. In such circumstances, though the prosecution may not have been successful in proving the motive i.e. the illicit relations of the appellant and accused no.2 beyond reasonable doubt, yet the prosecution has established that it is the appellant and the appellant 9 Cri.Appeal No.184 of 2010 alone who has killed the deceased. None else but the appellant could have killed the deceased inside the house. 12. After giving our anxious consideration to the evidence on record, according to us, there is no merit in the present appeal and the appeal deserves to be dismissed. Accordingly, Criminal Appeal No.184 of 2010 is dismissed confirming the conviction and sentence. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria184.10