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2012 DIGILAW 2388 (BOM)

Sopan Bhausaheb Gunjal v. State of Maharashtra

2012-12-20

A.R.JOSHI, V.K.TAHILRAMANI

body2012
Judgment :- A.R. Joshi, J. 1. Heard rival arguments at length on earlier dates on the present Criminal Appeal preferred by the appellants/orig.accused Nos.1,3 & 4 challenging the judgment and order dated 30.4.2007 passed by the Adhoc Additional Sessions Judge-3, Nashik in Sessions Case No.156 of 2006. By the impugned judgment and order, the appellants were convicted for the offence punishable under Sections 302, 304B and 498A read with Section 34 of IPC. For the offence punishable under Section 302 of IPC, they were sentenced to suffer life imprisonment and to pay fine of Rs.1000/-each, in default to suffer RI for two months each. For the offence punishable under Section 304B IPC, they were sentenced to suffer RI for seven years each. For the offence punishable under Section 498A IPC, they were sentenced to suffer RI for three years each and to pay fine of Rs.1000/-each, in default to suffer RI for two months each. All the substantive sentences were directed to run concurrently. By the said judgment and order, original accused No.2 was acquitted of all the charges. The State has not preferred appeal against the acquittal of said original accused No.2. 2. The case of the prosecution, in nutshell, is as under:- Victim Kalpana and accused No.1 Sopan got married with each other on 2.5.2005. Appellants/accused Nos.3 & 4 are the parents of appellant/accused No.1. Acquitted original accused No.2 is the brother of appellant/accused No.1. PW3 Pandharinath Ugale is the father of victim Kalpana. Agricultural lands of said complainant PW3 Pandharinath and of the family of accused, situate adjacent to each other at Sulewadi, Taluka – Sinnar, District – Nashik. So also family of the accused was cultivating the land of said complainant PW3 Pandharinath for years together on lease, and accordingly their relations were cordial. Due to such acquaintance, marriage of Kalpana was fixed with appellant No.1 and it was so performed in May, 2005. After marriage, deceased Kalpana started residing in the family of appellants at her matrimonial house which situates in the agricultural land of the appellants and situates adjacent to the agricultural land of her father Pandharinath (PW3). 3. Initially after marriage Kalpana was treated well. However, after one month or so the quarrels started on account of demand of Rs.2 lakhs from father of victim Kalpana. Apparently said demand was for purchase of motorcycle and tractor. 3. Initially after marriage Kalpana was treated well. However, after one month or so the quarrels started on account of demand of Rs.2 lakhs from father of victim Kalpana. Apparently said demand was for purchase of motorcycle and tractor. On this count, Kalpana was being ill-treated and harassed by all the appellants. At times, Kalpana was beaten. Kalpana had narrated such treatment to her parents and other relatives whenever she used to meet them. 4. It is also the case of prosecution that on 5.8.2005 victim Kalpana met her mother Manda (PW4), when they were working in the agricultural field. Victim Kalpana complained to her mother regarding ill-treatment meted out to her at her matrimonial home on account of demand of dowry. On that evening, after work Kalpana and her mother Manda returned to their respective homes. On the next morning at about 7:30 a.m. appellant/accused No.4 – father-in-law of Kalpana visited the house of Pandharinath – father of Kalpana and informed that Kalpana was missing since early morning. Both of them searched for Kalpana in the near vicinity and also enquired with the relatives, but in vain. 5. According to the case of prosecution, one Murlidhar Ugale (PW2) told Pandharinath that the husband and in-laws of Kalpana had killed her and thrown her in the well situate in the agricultural field of said Pandharinath. Arrangements were made to search the body of Kalpana in the well. The dead body of Kalpana was taken out from the well and intimation was given to the police. Accidental death report was lodged. Inquest panchnama was drawn and dead body was sent for postmortem and then the dead body was given to the parents of Kalpana and last rites were performed by her parents on the dead body. On the next day of finding the dead body, complaint was lodged by Pandharinath (PW3) and offence was registered against the present appellants and also against original accused No.2 Suresh. During investigation, statements of witnesses were recorded and on completion of investigation charge-sheet was filed. The matter was committed to the Court of Sessions and after trial it ended in conviction of present appellants, as mentioned above. 6. The defence of the appellant/accused is that of total denial and false implication. During investigation, statements of witnesses were recorded and on completion of investigation charge-sheet was filed. The matter was committed to the Court of Sessions and after trial it ended in conviction of present appellants, as mentioned above. 6. The defence of the appellant/accused is that of total denial and false implication. It is also the defence, as transpired from the tenor of the cross-examination and answers given by the appellants/accused while recording their statements under Section 313 of Cr.P.C., that Kalpana was not happy with the marriage as she was more educated than appellant/accused No.1 – her husband. It is also the defence that one Muralidhar Ugale from the said village was jealous of the good cordial relations between the family of appellants/accused and family of the victim and, therefore, he created a suspicion in the mind of Pandharinath (father of victim Kalpana) and concocted a false story of all the appellants/accused ill-treating her and throwing her in the well after assault. At this juncture, it may be mentioned that during the arguments still one more defence is advanced before us that it was accidental fall in the well when victim had gone to answer the natures call at the early hours of the fateful day of 6th August, 2005 and when she was attempting to take water from the well situate in the agricultural field of her father, probably she had fallen down in the well as allegedly the well was not having any constructed wall. Prior to discussing the arguments advanced on behalf of appellants/accused, certain factual position is required to be mentioned in order to have proper perspective of the case and to deal with the arguments whether the defence, as raised on behalf of the appellants/accused, is probable on preponderance of probabilities. Certain admitted factual position is as under: [i] Marriage of victim Kalpana and appellant/accused No.1 was performed on 2.5.2005. It was an arranged marriage and for about more than 20 years the family of appellant/accused No.1 was cultivating the adjacent agricultural land belonging to the father of the victim – Kalpana. [ii] The incident of finding the dead body of Kalpana in the well situate in the agricultural field of father of Kalpana i.e. PW3 Pandharinath, happened on 6.8.2005. It was an arranged marriage and for about more than 20 years the family of appellant/accused No.1 was cultivating the adjacent agricultural land belonging to the father of the victim – Kalpana. [ii] The incident of finding the dead body of Kalpana in the well situate in the agricultural field of father of Kalpana i.e. PW3 Pandharinath, happened on 6.8.2005. [iii] Father of appellant/accused No.1 i.e. father-in-law of victim Kalpana had been to the house of her parents in the morning of 6.8.2005 telling that Kalpana was missing from her matrimonial house since early morning of that day. [iv] Dead body of Kalpana was retrieved from the well in the evening of 6-8-2005 and on the next day i.e. on 7.8.2005 PW3 Pandharinath lodged his complaint against all the appellants/accused and also against original accused No.2 – brother of accused No.1, but initially accidental death report was registered by police on the night of the incident. 7. From the substantive evidence of Dr.Vasant Karande (PW1) who performed the postmortem on the dead body, it is apparent that the cause of death was shown as cardio respiratory arrest due to shock due to asphyxia due to drowning. As such the death of Kalpana was otherwise not under the normal circumstances. On this aspect, it is to be seen that as per the case of prosecution during the spot panchnama, one sleeper of right leg and one plastic container with iron wire were found. On this factual position it was suggested during the cross-examination of PW3 Pandharinath that victim Kalpana had slipped in the well which was under construction and it happened at the early hours of 6.8.2005 when Kalpana left home for answering the natures call. This suggestion has been denied by PW3 Pandharinath. 8. Moreover, the above referred circumstances are required to be construed in juxtaposition of the substantive evidence of PW2 Muralidhar Ugale. According to him, after knowing missing of Kalpana, he had been to the matrimonial house of Kalpana in the field and met appellant/accused No.3 Sitabai. On initial enquiries with her regarding missing Kalpana, she did not reveal anything. However, when said PW2 Muralidhar raised voice and again enquired, accused No.3 Sitabai replied that they had killed her and had thrown her in the well of her father. On initial enquiries with her regarding missing Kalpana, she did not reveal anything. However, when said PW2 Muralidhar raised voice and again enquired, accused No.3 Sitabai replied that they had killed her and had thrown her in the well of her father. After knowing this, PW2 Muralidhar searched PW3 Pandharinath and narrated him that Kalpana was killed and thrown in the well belonging to Pandharinath. Thereafter he along with Pandharainath and other relatives went towards the well and thereafter the dead body of victim Kalpana was extracted from the water. These witnesses noticed various injuries on the forehead, nose, eyes and ears of the dead body. The hairs of the victim were loose and were not tide. By that time the parents of appellant/accused No.1 i.e. accused Nos.3 & 4 and other relatives came to the spot and started taking dead body for funeral. However, they were objected by PW3 and his other relatives and then the police were informed. Thereafter police persons arrived there and took the dead body to Sinnar and on the next day postmortem was conducted. 9. On the next day of the incident, PW3 Pandharinath lodged his FIR. During arguments, it is brought to our notice that so far as the substantive evidence of PW2 Muralidhar is concerned, there is rather contradiction so far as extra judicial confession given by appellant/accused No.3 that the accused persons had killed the victim. On carefully going through the substantive evidence of those witnesses, it is noticed that the omission is only to the extent of killing the victim. In other words, there is no omission as to appellant/accused No.3 making extra judicial confession. She had stated that they had thrown the victim in the well. Here the words “killed” were not used. We have gone through the reasonings given by the learned trial Court as appearing in the judgment and order para – 12 and we do not find that the learned trial Court had committed any error in appreciating this evidence of prosecution specifically on the aspect of extra-judicial confession of appellant/accused No.3 Sitabai. 10. On the above aspect, we have also gone through the substantive evidence of PW4 Mandabai, mother of the victim. 10. On the above aspect, we have also gone through the substantive evidence of PW4 Mandabai, mother of the victim. It is observed that the substantive evidence of PW2 Muralidhar, PW3 Pandharinath and PW4 Mandabai on this aspect is corroborating each other and there is no much variance in their evidence on the aspect as to appellant/accused No.3 making extra-judicial confession before PW2 Muralidhar saying that victim Kalpana is in the well and go and search the well. It is also same that there was no any other reason for the search party to search the well unless there was knowledge to somebody as to victim Kalpana is thrown in the well. It is not at all the case of the appellants also even to accept on preponderance of probabilities that they had at initial stage suggested regarding the accidental fall of the victim in the well and to search for her. This is prior to informing the situation to PW2. On this aspect, it is significant to note that at about 7:00 a.m. or so on the day of the incident also accused No.4 had visited the house of Pandharniath (PW3) and informed him regarding missing of Kalpana. This conduct speaks volume and it is to be construed along with the substantive evidence of prosecution witnesses – PW2, PW3 & PW4. 11. We have also seen that the substantive evidence of these witnesses PW2 Muralidhar, PW3 Pandharinath & PW4 Mandabai is also consistent with each other and it is not subjected to any deficiency due to any omissions or contradictions on the aspect of ill-treatment given to victim Kalpana on account of demand of Rs.2 lakhs for purchase of motorcycle and tractor and on aspect of victim Kalpana narrating such events of ill-treatment to her parents. Even it is observed that according to PW4 Mandabai she had met her daughter Kalpana on the earlier day while working in the field. That time both women had a talk regarding ill-treatment and on that evening both went to their respective homes, and from the next day morning victim – Kalpana was found missing as admittedly appellant/accused No.4 visited the house of PW3 Pandharinath to inform him regarding missing of Kalpana. That time both women had a talk regarding ill-treatment and on that evening both went to their respective homes, and from the next day morning victim – Kalpana was found missing as admittedly appellant/accused No.4 visited the house of PW3 Pandharinath to inform him regarding missing of Kalpana. Again on this aspect, we have gone through the reasonings given by the trial Court appearing in paras – 14 & 15 of the judgment and order so as to come to the conclusion as to the involvement of the appellants/accused and their knowledge that Kalpana is in the well and missing from the early hours of 6.8.2005. We do not find any error in the said reasonings so as to come to a different view. 12. During the arguments it is argued on behalf of the appellants that initially it was the case of accidental death as one Bhanudas Ugale – uncle of the victim Kalpana intimated the police regarding drowning of Kalpana in the well of Pandharinath. Apparently, on such intimation as to drowning, accidental report was lodged by the police. It is further submitted that though it was case of accidental fall in the well but due to vengeful attitude of PW2 Muralidhar on his instigation a complaint was lodged by PW3 Pandharinath on the next day. In order to appreciate this argument in proper perspective, firstly it must be mentioned that there is nothing brought on record even to accept on preponderance of probabilities that said Muralidhar Ugale was in cross terms with the appellants/accused. Secondly, said Bhanudas Ugale who had given intimation to the police on the evening of 6.8.2005 regarding fall of Kalpana in the well and finding her dead, is not examined. However, apparently on the behest of appellants/accused the station diary extract was taken on record vide Exh.15 during the course of the trial. On this aspect, there is cross-examination of PW3 Pandharinath and he had specifically mentioned that he is not aware as to on what count said Bhanudas intimated the police over telephone regarding fall of Kalpana in the well and finding her body. According to PW3 Pandharinath this alleged information given to the police over telephone was not on his instructions or on his behest. According to PW3 Pandharinath this alleged information given to the police over telephone was not on his instructions or on his behest. This substantive evidence of PW3 Pandharinath is required to be construed in the light of another circumstance that simplicitor Exh.15 cannot be taken as a statement to confirm the accidental fall of victim in the well. In other words, the simple mention over telephone to the police that the victim is found in the well cannot be taken as negating the entire case of prosecution as spelt out by PW3 – the first informant. Moreover, at the cost of repetition, it may be mentioned that his evidence is corroborated by the substantive evidence of PW1, PW2 and PW4. 13. It is also argued that the motive has not been established by the prosecution and it is a relevant factor considering the case of prosecution based on circumstantial evidence. In order to substantiate this argument, it is brought to our notice that even according to the admissions given by prosecution witnesses, appellants/accused had their own agricultural lands and also had a tractor of their own and as such it was improbable that the appellants/accused will demand Rs.2 lakhs from the parents of Kalpana. In our considered view, it cannot be accepted that a person having sufficient means or is financially well will not ask for money from somebody else. This demand or otherwise of Rs.2 lakhs is to be tested on the available material produced during the trial. In that process again the substantive evidence of PW2, PW3 & PW4 is of much importance wherein they have categorically stated regarding such demands and for this there was physical assault on the victim. The physical assault on the victim is apparently substantiated by the evidence of Dr. Vasant Karande as during postmortem he had observed various injuries which were caused six hours prior to the death and those injuries were caused when victim was alive. Moreover as per the expert opinion of PW1, he had mentioned the approximate time of death as 30 hours prior to the time of conducting the postmortem. The postmortem was conducted on 7.8.2005 at 11:00 a.m.. Hence, according to this witness the probable time of death is 5:00 a.m. on 6.8.2005. On this aspect the substantive evidence of PW1 is reproduced hereunder with advantage: “I found watery fluid oozing slight muddy from mouth and nostrils. The postmortem was conducted on 7.8.2005 at 11:00 a.m.. Hence, according to this witness the probable time of death is 5:00 a.m. on 6.8.2005. On this aspect the substantive evidence of PW1 is reproduced hereunder with advantage: “I found watery fluid oozing slight muddy from mouth and nostrils. I also found cutes anserina on palm and sole and slightly on exposed part of body. I found injuries as below. Surface wounds and injuries 1) CLW on left both eye lids laterally 1 cm x 0.2 cm x 0.2 cm redish with sub-conjunctival haematoma laterally. 2) contusions i) on left maxilla. 1.5 x 0.5 cm bluish ii) on left deltoid region, laterally 4 cm x 2.5 cm bluish. Age of 1st and second injuries within 6 hours before death. Age of injury is approximately. The object was hard and blunt for injury No.1 and blunt for injury No.2. Nature of injury – simple. 3) Healing contusion with nacrosed part of skin is washed out in water. So appeared white. i) on chest right lower, laterally, rib level 7th and 8th 2.5 cm round with irregular edge. ii) left knee region above front 1.5 cm round irregular edge. iii) right forearm middle 3rd laterally 1 cm round. iv) Left thigh upper 3rd fronto laterally with irregular edge. 1.5 cm v) above left iliac crest, 1 cm round with irregular edge. vi) Forearm middle 3rd laterally. 0.5 cm round irregular edge. vii) Right popliteal fossa vertical 2 x 0.5 cm irregular edge. Age of injuries 2 to 3 days before death. object blunt. Nature was simple. Wounds with irregular edge. 4) wounds with irregular edge with bleeding on - i) both ears, lobe and pinna ii) on both lips iii) at and between right III, IV & V toes and left II, III, IV and toes these wounds are after death caused by water animals as eaten.” In our considered view, these injuries cannot be possible if it is a case of accidental fall in the well. 14. During the arguments, on behalf of the appellants, following authorities are cited before us on the aspect of appreciation of evidence of confession. These authorities are: [i] AIR 1952 SUPREME COURT 159 [Kashmira singh Vs. The State of M.P.] [ii] AIR 1956 SUPREME COURT 56 [Nathu Vs. State of U.P.] [iii] AIR 1964 SUPREME COURT 1184 [Haricharan Kurmi Vs. 14. During the arguments, on behalf of the appellants, following authorities are cited before us on the aspect of appreciation of evidence of confession. These authorities are: [i] AIR 1952 SUPREME COURT 159 [Kashmira singh Vs. The State of M.P.] [ii] AIR 1956 SUPREME COURT 56 [Nathu Vs. State of U.P.] [iii] AIR 1964 SUPREME COURT 1184 [Haricharan Kurmi Vs. State of Bihar] [iv] AIR 1982 SC 1595 [Heramba Brahma & Anr. Vs. State of Assam] [v] 1995 Supp (4) Supreme Court Cases 519 [Chhitar Vs. State of Rajasthan] [vi] 1996 AIR 607 [Balwinder Singh Vs. State of Punjab] [vii] Pancho Vs. State of Haryana [Supreme Court, decided on 20.10.2011 There is no doubt that the evidence of accomplice or the confessional statement of an accused is required to be viewed with circumspection and it must be said that whether or not to accept such confessional statement depends on the facts and circumstances of a particular case. In the present matter, the circumstances are such that but for the extrajudicial confession given by appellant/orig.accused No.3, there would not have been any clue to find the dead body of victim Kalpana. 15. Further, on the aspect as to alleged inimical terms between PW2 Muralidhar on one side and the family of appellants/accused on the other side, the ratio of the following authority was taken shelter of. Said authority is as follows : [i] (1975) 4 Supreme Court Cases 511 [Balaka Singh & Ors. Vs. The State of Punjab] At the cost of repetition it must be mentioned that apart from mere suggestion, there is nothing brought on record that said PW2 Muralidhar was on so severe inimical terms with the family of appellants so as to falsely allege the charge of murder. Moreover, it would be far fetched to accept that the complainant PW3 Pandharinath would act on the say of said PW-2 Muralidhar. 16. Considering the evidence led before the trial Court and considering the reasonings given while convicting the appellants/accused for the offences charged, in our considered view, there is nothing to come to the different conclusion more so when there is no any plausible explanation coming from the appellants/accused as to how and under what circumstances victim Kalpana died and that also by drowning in the well situate in the neighbouring field belonging to her father Pandharinath. Definitely this non-explanation on the part of the appellants/accused is required to be construed as a mitigating circumstance to the defence raised on behalf of the appellants. 17. In any event, there is nothing to interfere with the impugned judgment and order and as such there is no merit in the present appeal and the same is accordingly disposed of with following order: ORDER [i] Criminal Appeal No.615/2007 stands dismissed and disposed of accordingly. Criminal Application No.1577/2012 also stands dismissed as infructuous. [ii] Appellant Nos.2 & 3/orig.accused Nos.3 & 4 are on bail. The Adhoc Additional Sessions Judge3, Nashik is directed to issue appropriate process against them for taking them in custody to suffer the sentence awarded in the impugned judgment and order. [iii] Writ of order is expedited. [iv] Present judgment and order be forthwith communicated to the Adhoc Additional Sessions Judge-3, Nashik as well as to the appellant/accused through the concerned jail authorities where the appellant/accused is presently lodged.