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2007 DIGILAW 1121 (BOM)

Dhananjay Namdeo Kharade v. State of Maharashtra

2007-08-14

P.V.HARDAS, S.P.KUKDAY

body2007
JUDGMENT : ( Per S.P.Kukday, J.) 1. Appellants were tried for committing murder of Manisha wife of appellant no.1 Dhananjay as their demand for Rs.25,000/- for purchasing cows was not satisfied by her parents and for throwing her dead body in to the well for causing disappearance of evidence. Third Additional Ad-hoc Sessions Judge, Ahmednagar, convicted the appellants for offences punishable under Sections 302 and 498A r/w 34 of the Indian Penal Code ( IPC for short) but acquitted them for the offence punishable under Section 201 of IPC. For the first offence the appellants are sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.1000/- each, in default, to suffer rigorous imprisonment for six months each. For the second offence they are sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.500/- each, in default, to suffer rigorous imprisonment for three months each. The order is impugned by the appellants in the present appeal. 2. Briefly stated the prosecution case is that deceased Manisha married Dhananjay Namdeo Kharade ( appellant no.1) in the year 1996. After the marriage she started living with her father-in-law Namdeo ( appellant no.2), mother-in-law Suman ( appellant no.3) and her husband at her matrimonial house at village Khed, Taluka Karjat; District Ahmednagar. Six months after the marriage, appellants started making demands for money on one pretext or the other. About two years prior to the incident, appellants used to demand Rs.25,000/- for purchasing cows. As the demand for money was not satisfied, the appellants were torturing Manisha. Whenever she visited her parents, Manisha were acquainting her father Ramesh ( P.W.2), her mother and relatives, of her plight. On 8th November 2004, at about 8.45 in the morning, Ramesh received message regarding death of Manisha from neighbour Namdeo Kshirsagar. On receipt of the message, Ramesh his wife and relatives immediately started for Khed in a hired jeep. Vilas ( P.W.3) cousin of Ramesh went ahead on motor cycle. When he reached matrimonial house of Manisha, Vilas saw injuries on the neck and other parts of the body of the deceased. The appellants were making haste for cremation, thus, Vilas went to Karjat Police Station and reported the death of Manish. On the basis of this information Goraksh Bhos ( P.W.7) registered A.D.No.42 of 2004 under Section 174 of the Code of Criminal Procedure at about 4.30 p.m. 3. The appellants were making haste for cremation, thus, Vilas went to Karjat Police Station and reported the death of Manish. On the basis of this information Goraksh Bhos ( P.W.7) registered A.D.No.42 of 2004 under Section 174 of the Code of Criminal Procedure at about 4.30 p.m. 3. On reaching Khed at about 2.00 p.m. Ramesh and his relatives saw dead body of Manisha in veranda of the house and noticed semi-circular injury around the neck indicating that the death was not accidental. Ramesh thus went to Karjat and filed complaint with the Police. PSO recorded the FIR ( Ex.27) and registered offence punishable under Sections 302 and 201 of the IPC against the appellants. After registration of the offence, PSI Prakash Khandekar ( P.W.8) took over the investigation. He visited house of the appellants; held inquest ( Ex.25) on the dead body, sent the dead body for postmortem and arrested the appellants. During inquires, the investigating officer found that the deceased was strangulated in the crop of maize near the house and the dead body was thrown in the nearby well. He, therefore, visited scene of occurrence on 9th and prepared panchnama ( Ex.43). On 10th, appellant no.1 made a confessional statement ( Ex.34) and produced nylon tether used for the strangulation, from garbage near the house. The rope having length of 4-1/2 feet was attached under seizure memo ( Ex.35). Dr. Subhash Shinde ( P.W.6) performed autopsy. On noticing the injuries on the neck and fracture of thyroid horn, he concluded that the death is caused by strangulation. He accordingly prepared postmortem report ( Ex.38) giving the cause of death as asphyxia due to strangulation. On completion of the investigation, chargesheet was filed against the appellants. 4. At the trial the appellants pleaded false implication adopting a defence that the deceased fell in the well and died an accidental death. 5. The prosecution examined eight witnesses in support of its case. Sudam Kharade ( P.W.1) has proved inquest panchnama ( Ex.25). Arif Akbar Pathan has proved confessional statement of appellant no.1 and consequent seizure of nylon tether produced by him from the garbage heap near the house. Goraksha Bhos ( P.W.7) registered AD No.42 of 2004 under section 174 of the Code of Criminal Procedure at about 4.30 p.m. and FIR ( Ex.27) filed by father of the deceased. Arif Akbar Pathan has proved confessional statement of appellant no.1 and consequent seizure of nylon tether produced by him from the garbage heap near the house. Goraksha Bhos ( P.W.7) registered AD No.42 of 2004 under section 174 of the Code of Criminal Procedure at about 4.30 p.m. and FIR ( Ex.27) filed by father of the deceased. Ramesh ( P.W.2) stated that after six months of the marriage, the appellants started making demands for money for purchasing cows. The deceased used to complain of ill-treatment but he used to send her back for cohabitation in the hope that the appellants would reconcile with the reality and would improve their behaviour. However, on 8th November 2004 he received message that his daughter has expired and went to her matrimonial house with his relatives to discover that she has been murdered. Appellant no.1 told him that he has murdered Manisha and asked him to do whatever he can. He, therefore, filed report against the appellants with Karjat Police. During his cross-examination it has been brought on record that for the last two years the appellants were demanding Rs.25,000/- for purchasing cows. On one occasion the demand was made by the accused in presence of Dnyandeo ( P.W.4). It has also been brought on record that the deceased was left at his house by her husband on two or three occasions. Whenever, Ramesh escorted his daughter to her matrimonial house, he was insulted by the appellants. Once a meeting was held at his house for settlement of the dispute. The meeting was attended by Police Patil, Sarpanch, Dnyandeo and his son-in-law but the ill-treatment of his daughter did not abate. Ramesh repelled suggestion that the appellants enjoyed good financial status and had 20 cows, thus there was no occasion for demanding money for purchase of cows. He also repelled suggestion that his daughter met with an accident when she went for her morning duties and fell in to the well. As she did not return, search started after ten minutes and her dead body was taken out from the well with the help of branches of the tree. 7. Vilas ( P.W.3) is cousin of Ramesh. He is engaged in business of selling vegetables at Phaltan but visits his native place at the time of Diwali and other festivals. On this occasion he had come to Bhosa for Diwali. 7. Vilas ( P.W.3) is cousin of Ramesh. He is engaged in business of selling vegetables at Phaltan but visits his native place at the time of Diwali and other festivals. On this occasion he had come to Bhosa for Diwali. Whenever the deceased met him, she used to disclose that the appellants were ill-treating her as their demands for money were not satisfied by her parents. On 8th November 2004, on getting news of the death of Manisha he went ahead of others to her matrimonial house. On finding that the appellants were making haste for cremation, he communicated information regarding the death of Manisha to Karjat Police. During the cross-examination Vilas disclosed that three four meetings were held for settlement of the dispute at the house of his cousin, the last meeting was about 15 days prior to the incident, but there was no improvement in the behaviour of the appellants. The witness repelled suggestion that the appellants are well placed and had never demanded money from the parents of the deceased. He denied suggestion that there were no injuries on the person of the deceased and the appellants were not making haste for cremation. He further denied that after discussing the matter with his cousin, he approached Karjat Police for giving an intimation of the death of Manisha. 8. Dnyandeo ( P.W.4) stated that demands for money used to be made by the appellants. Whenever his niece Manisha met him, she was complaining of the harassment by the appellants as the demands for money could not be satisfied by her parents due to their poor financial condition. On 8th he accompanied Ramesh to the matrimonial house of Manisha and noticed semi-circular mark of injury on her neck. Appellant no.1 told him that he killed Manisha, therefore, he did not make enquiries with anybody regarding the manner in which Manisha died. The appellants were insisting that they should be allowed to cremate the dead body; therefore, Vilas conveyed information about her death to Karjat Police. The witness repelled suggestions that the appellants never made demands for money and that Manisha fell into the well accidentally and died. He also denied that appellant no.1 did not confess to the commission of the crime. 9. Dr.Subhash Shinde ( P.W.6) performed autopsy. He noticed following external injuries on the dead body: 1. The witness repelled suggestions that the appellants never made demands for money and that Manisha fell into the well accidentally and died. He also denied that appellant no.1 did not confess to the commission of the crime. 9. Dr.Subhash Shinde ( P.W.6) performed autopsy. He noticed following external injuries on the dead body: 1. Semi circular ligature mark of the size 10 x 1.5 cms. just below thyroid cartilage with ecchymosis along the edges and in the tissues under the ligature mark. The mark was absent on the back portion. 2. Contusion of the size 2 x 2 cms; on the left side of the face near the eye with sub-cutaneous echymosis. 3. Multiple (5) pinhead contusions on left side of upper lip. 4. Abrasion over left knee on lateral aspect of the size 1 x 1 cm. The internal examination revealed fracture of superior horn of thyroid cartilage. Brain, lungs, etc. were congested and the stomach contained semi-digested food. The rigor mortis was present in upper and lower extremities. The Medical Officer issued post mortem report ( Ex.38). He repelled suggestion that the ligature mark could have appeared when the dead body was taken out from the well and ruled out possibility of an accidental death by drowning. 10. PSI Prakash ( P.W.8) states that during the investigation he held inquest ( Ex.25) and prepared panchanama of the scene of occurrence ( Ex.43). On 10th appellant no.1 confessed to the crime and produced nylon rope from the garbage near the house. He attached the rope under seizure memo ( Ex.35). During the cross examination he admitted that the neighbours of the appellants mentioned that the deceased fell in the well and her dead body was taken out with the help of a hook. 11. On appreciation of the evidence the trial Judge found that the deceased died a homicidal death and rejected the possibility of an accidental death by drowning. He found that the evidence of father of the deceased, his cousin Vilas and Dnyandeo is worthy of belief and is sufficient to establish ill-treatment of the deceased as demands of money made by the appellants for purchasing cows were not satisfied by her parents. He further found that the appellants could not give a satisfactory explanation of the death of the deceased while she was in their custody. He further found that the appellants could not give a satisfactory explanation of the death of the deceased while she was in their custody. He further found that the chain of circumstances established by the prosecution, unerringly points to the guilt of the appellants and excludes every possibility of their innocence. In conformity with these findings, the trial Judge convicted the appellants of the offences punishable under sections 302 and 498A of IPC but acquitted them of the offence punishable under Section 201 on the premise that shifting the dead body from one place to another would not amount to causing disappearance of the evidence of the offence and sentenced them to suffer imprisonment as stated earlier. 12. In support of the appeal learned Counsel for the appellants Smt. C.E.Gaikwad would argue that the prosecution has failed to establish chain of circumstances so complete as to exclude the possibility of innocence of the appellants. Learned Counsel referred to the fact that the allegation of torture of the deceased for failure of her parents to meet demand for money coming after nine years of married life cannot be relied upon. There is no evidence on record to establish complicity of the appellants in committing murder of the deceased. Their explanation, that the deceased died an accidental death by falling into the well, is a plausible explanation in the circumstances of the present case. The appellants have discharged the burden to furnish an explanation of the circumstances leading to the death of the deceased, as the death has occurred while the deceased was in their custody. Learned Counsel would argue that in any event mere presence of appellant nos. 2and 3 in the house would not be sufficient to fasten liability for commission of the offence, in the absence of evidence to show their participation. According to learned Counsel, evidence of the prosecution witnesses regarding torture of the deceased is most unsatisfactory and unreliable. The absence of motive weakens the chain of circumstances, coupled with this, the fact that the appellants have furnished logical explanation of the death that has occurred while the deceased was in their custody would prove their innocence. The prosecution has failed to bring home guilt to the appellants beyond reasonable doubt, the appellants are thus, entitled to an acquittal. 13. Per contra; learned A.P.P. Shri P.M.Shinde would point to the simplicity of the evidence of Ramesh. The prosecution has failed to bring home guilt to the appellants beyond reasonable doubt, the appellants are thus, entitled to an acquittal. 13. Per contra; learned A.P.P. Shri P.M.Shinde would point to the simplicity of the evidence of Ramesh. Referring to the evidence of Ramesh and Dnyandeo learned A.P.P. would contend that their evidence relating to the demand for money and torture of the deceased for failure of her father to meet the demand deserves credence. Shri Shinde further contends that undisputedly, the death of the deceased took place while she was in custody of the appellants. The explanation furnished by the appellants is falsified by the medical evidence which rules out possibility of accidental death. The fact that the appellants have furnished false explanation is also a circumstance which strengthens presumption of the guilt of the appellants. According to learned A.P.P. the prosecution has established circumstances which forge a complete chain which is consistent not only with the guilt of the appellants, but is inconsistent with their innocence, therefore, no interference with the order of conviction passed by the lower court is warranted. 14. The present case is entirely based on the circumstantial evidence. In such cases, the prosecution is obliged to (i) conclusively establish the circumstances pointing to the guilt of the accused (ii) The chain of circumstances must be complete and (iii) The circumstances so established, should not only substantiate the hypothesis of guilt of the accused, but must be incompatible with his innocence. In the present case the prosecution mainly relies on three factors (i) that the death is homicidal; (ii) that it took place while the deceased was in custody of the appellants and (iii) that appellant no.1 was torturing the deceased as demand for money was not met by her parents. Principles of law governing cases of custodial death are by now well crystalised. Direct evidence in such cases is seldom available. Thus, the prosecution has to rely on the circumstantial evidence. Sufficiency of the evidence in such cases depends on the facts of each case. No hard and fast rule can be evolved for dealing with all types of contingencies. In case of custodial death though the prosecution relies on the circumstantial evidence, the burden on the prosecution to establish its case is lighter than in other cases of circumstantial evidence. Sufficiency of the evidence in such cases depends on the facts of each case. No hard and fast rule can be evolved for dealing with all types of contingencies. In case of custodial death though the prosecution relies on the circumstantial evidence, the burden on the prosecution to establish its case is lighter than in other cases of circumstantial evidence. The prosecution is obliged to adduce evidence which is available in the circumstances of each particular case. Where the crime is committed in the bastion of the accused with utmost secrecy, where the accused have the freedom to select the time and mode of the commission of the offence, we cannot expect the prosecution to lead evidence regarding the mental state of the accused or to prove what must have transpired at the time of the occurrence with mathematical precision. We cannot expect the prosecution to do that which, in the circumstances of the case, is impossible. In such cases too much insistence on strict proof can lead to miscarriage of justice and the society would be the ultimate suferer. The initial burden, to prove the relevant facts giving rise to the presumption of the guilt of the accused, does not shift. However, once it is proved that the deceased died a homicidal death while the inmates of the house were present and the intervention of a stranger is ruled out, it is for the inmates of the house to give, explanation regarding the circumstances which resulted in the death of the deceased. The presumption giving rise to the culpability of the husband is stronger than the presumption regarding participation of other inmates as the possibility that they were not merely the helpless onlookers is an additional factor in their favour. However, the inmates of the house cannot escape the responsibility for commission of the crime on the spacious premise that the burden to establish their complicity is on the prosecution. This rule is enunciated by the Apex Court in State of W.B. v. Mir Mohammad Omar [ (2000)8 SCC 382 382]. Their Lordships observed n para 31 of the report: "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. Their Lordships observed n para 31 of the report: "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. " 15. Dealing with similar circumstances and discussing the rationale of Section 106 of the Evidence Act, the Apex Court, in Trimukh Maroti Kirkan v. State of Maharashtra ( 2006) 10 SCC 681, in para 15 of the report, observed: "15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." Considering the weakness of the presumption in respect of all the inmates of the house, in Vithal Tukaram More v. State of Maharashtra [ (2002) 7 SCC 20 ], in para 17 of the report, the Court observed: " Assuming that the presence of all the accused persons on the date and time of the incident is fully proved but that fact alone cannot lead to an inference that all of them jointly assaulted the deceased and had common intention to kill her. Mere presence of the accused-appellants in the house cannot reasonably lead to an inference of their joint participation in physical assault and common intention on their part with the convicted accused to commit her murder. The medical evidence showing that the death was not "suicidal" but "homicidal" also does not necessarily lead to the inference of involvement of all the accused in the homicidal death of the deceased." 16. The evidence in the present case will have to be appreciated in the light of these principles. In the present case evidence of father of the deceased, his cousin Vilas and distant cousin Dnyandeo shows that the deceased was complaining about her torture by the accused for non payment of Rs.25,000/- for purchasing cows. Inspite of the searching cross-examination the defence could not dislodge this evidence. The Trial Judge has discussed the evidence of these witnesses and the criticism of their evidence by the defence at length to arrive at the conclusion that the appellants were torturing the deceased as demand for Rs.25,000/- was not satisfied by her parents. Ramesh has, however, mentioned that in the meeting held for conciliation, appellant no.1 was alone present. He mentions that accused once beat the deceased in his presence. The tenor of this evidence shows that the word ‘accused’ is used as singular, because it would be too much to presume that each of the appellant would assault the deceased in presence of her father. Ramesh has mentioned that meetings for the settlement were attended by appellant no.1 alone. In the light of this, we are inclined to accept contention of learned counsel for the appellants Smt.C.E.Gaikwad that appellant nos. 2 and 3 are entitled to a benefit of doubt in respect of the allegation of torture of the deceased. In our considered opinion, conclusion of the trial Judge that all the appellants were torturing the deceased based on general allegations by the witnesses, needs modification. We thus modify finding of the trial Judge on the point of cruel treatment of the deceased relating to the demand for dowry, so far as it concerns appellant nos. 2 and 3 but upholds the finding in respect of appellant no.1. 17. The prosecution also relies on the evidence of extra-judicial confession given by Ramesh and Dnyandeo. We thus modify finding of the trial Judge on the point of cruel treatment of the deceased relating to the demand for dowry, so far as it concerns appellant nos. 2 and 3 but upholds the finding in respect of appellant no.1. 17. The prosecution also relies on the evidence of extra-judicial confession given by Ramesh and Dnyandeo. Both of them have, however, subsequently accepted that appellant no.1 told them that the deceased fell into the well when she went out in the morning for answering natures call. Our attention is drawn to the fact that no reference to this extra judicial confession is found in FIR ( Ex.27). Had the extra judicial confession been, in fact, made Ramesh would have referred to it in the FIR, in view of this omission, we are also inclined to sustain contention of learned Counsel that no reliance can be placed on the evidence relating to the extra-judicial confession. We are further inclined to sustain contention of learned counsel for the appellants that the evidence regarding discovery of nylon rope deserves to be discarded as neither the medical evidence relating to the ligature mark nor the C.A.’s report connect the rope to the commission of the offence. 18. We may now refer to the medical evidence of Dr.Subhash Shinde ( P.W.6). The medical evidence discloses that the deceased had suffered four external injuries: (1) Semi-circular ligature mark of the size 10 x 1.5 cms. just below thyroid cartilage with ecchymosis along the edges and in the tissues under the ligature mark. The mark was absent on the back portion. (2) Contusion of the size 2 x 2 cms; on the left side of the face near the eye with sub-cutaneous echymosis. (3) Multiple (5) pinhead contusions on left side of upper lip. (4) Abrasion over left knee on lateral aspect of the size 1 x 1 cm. The internal examination revealed fracture of superior horn of thyroid cartilage. The medical officer has explained that absence of the ligature mark on the backside of the neck can be attributed to the hairs, in case of females. This explanation coupled with the classic symptoms of strangulation in the form of ligature mark on the neck and fracture of thyroid bone, leaves no doubt for the conclusion that the death was homicidal. This explanation coupled with the classic symptoms of strangulation in the form of ligature mark on the neck and fracture of thyroid bone, leaves no doubt for the conclusion that the death was homicidal. The fact that there was semi-digested food in the stomach would show that the death occurred about three to four hours after the consumption of food. If the usual timings of the consumption of food in the villages is taken to be between 8.00 to 10.00 p.m.; the time of death in the present case would be around 12.00 midnight to 2.00 a.m. on 8.11.2004. Presence of the inmates of the house during the relevant period is not disputed in the present case. The defence of the appellant no.1 is that the deceased died an accidental death by drowning. Undisputedly the dead body of the deceased was seen in the well in the morning by the neighbours and was taken out with the help of branches of the tree. The medical evidence rules out death by drowning. It is thus apparent that an attempt was made to create false evidence by appellants. Though appellant nos. 2 and 3 were present during the fateful night, the fact that the ill-treatment was by appellant no.1 alone, absence of any other circumstance establishing their participation and the fact that strangulation can be done by one person alone, would entitle appellant nos. 2 and 3 to a benefit of doubt. 19. Pragmatic assessment of the material on record would however, show that the prosecution has established following circumstances: (i) The deceased was in custody of the appellants at the time of her death; (ii) The appellants were at the house at the time of death; (iii) There was no possibility of intervention of the stranger; (iv) The deceased died a homicidal death and, (v) The appellant had motive to commit the offence. (21) . These circumstances coupled with the fact that appellant no.1 has given false explanation that the deceased died an accidental death due to drowning, complete the chain of circumstances unerringly pointing to the guilt of appellant no.1 and excludes the possibility of his innocence. The trial Judge has not marshalled the facts in proper perspective. (21) . These circumstances coupled with the fact that appellant no.1 has given false explanation that the deceased died an accidental death due to drowning, complete the chain of circumstances unerringly pointing to the guilt of appellant no.1 and excludes the possibility of his innocence. The trial Judge has not marshalled the facts in proper perspective. Implicit reliance is placed on the evidence of Ramesh, Vilas and Dnyandeo; to arrive at the conclusion that all the appellants were torturing the deceased and the presence of the appellant ipso facto makes them liable for the commission of the offence. In the circumstances of the present case, the conclusion regarding complicity of appellant nos. 2 and 3 does not appear to be logical. Considering the totality of the evidence on record, in our considered opinion, guilt of appellant no.1 alone is established beyond doubt. Appellant nos. 2 and 3 are, however, entitled to benefit of doubt. In the light of the reasons stated earlier, we modify the findings recorded by the Trial Judge, upholding the findings only in respect of appellant no.1. The appeal is, therefore, partly allowed. The conviction and sentence of appellant no.1 ( original accused no.1) Dhananjay Namdeo Kharade is confirmed and the appeal, in so far as it questions the correctness of his conviction and sentence, stands dismissed. The appeal, in so far as it questions the conviction and sentence of appellant Nos.2 and 3 ( Original accused nos. 2 and 3 - Namdeo Pandurang Kharade and Suman w/o Namdeo Kharade) is allowed and original accused nos. 2 and 3 ( Namdeo Pandurang Kharade and Suman w/o Namdeo Kharade are acquitted of the offence with which they were charged and convicted. Fine, if paid by them, be refunded to them. Their bail bonds stand cancelled.