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2014 DIGILAW 1391 (BOM)

Ramkisan Ramratan Dhotre v. State of Maharashtra

2014-07-01

B.P.DHARMADHIKARI, C.V.BHADANG

body2014
JUDGMENT C.V. BHADANG, J. The appellant was prosecuted in Session Case No. 76/2008 on the file of the learned Additional Sessions Judge-1, Achalpur for offences punishable under Sections 302, 201, 498-A and 306 of the Indian Penal Code. By a judgment and order dated 17.1.2011, the appellant came to be convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code and has been sentenced to suffer life imprisonment and to pay a fine of Rs.5,000/- in default to suffer rigorous imprisonment for two years for the offence punishable under Section 302 of the Indian Penal Code and to suffer rigorous imprisonment for two years and to pay a fine of Rs.2,000/- in default to suffer rigorous imprisonment for six months for the offence punishable under Section 201 of the Indian Penal Code. 2. The prosecution case may be briefly stated thus : The appellant was married with deceased Lalita in the year 2001 and both of them were staying at village Diya, Tahsil-Dharni, District-Amravati. The appellant was working as a cleaner on the private truck. According to the prosecution, sometime after the marriage, the appellant started ill-treating the deceased on the suspicion of her character. Initially both of them were staying jointly with other family members of the appellant. After one year of the marriage, the appellant and the deceased started residing separately. On account of occupation of appellant, he was required to be away from home for a period of eight days or more. The appellant was suspecting that this gave an opportunity to deceased to indulge into her illicit relationship. 3. The deceased used to inform about ill-treatment meted out to her on phone and personally whenever she used to visit her parental home. The maternal relations of deceased used to pacify her with a hope, that eventually behaviour of appellant would improve. It is specific case that two days prior to incident in question, the deceased had informed her father PW4 Madhukar Ramu Umarkar, who is complainant in this case, that there was a threat to her life and asking her to fetch back to her matrimonial home. 4. On 4.4.2008 at about 7.00 am, PW4 Madhukar received a telephonic message that the dead body of his daughter Lalita was found in a well. 4. On 4.4.2008 at about 7.00 am, PW4 Madhukar received a telephonic message that the dead body of his daughter Lalita was found in a well. The complainant along with others went to village Diya and found that the dead body of his daughter was lying in a Government well. It appears that PW2 Shailesh Malviya had already reported the matter to Police Station, Dhami, on the basis of which, a case of accidental death was registered and the police had visited the spot. The dead body was taken out and inquest panchanama was prepared. The dead body was sent for postmortem examination and, thereafter, it was handed over to complainant and the family of appellant as well as maternal relations of deceased were present at the time of funeral rites. The complainant PW4 Madhu, thereafter, lodged a complaint Exh.28 with Police Station, Dharni on 7.4.2008, on the basis of which, offence under Sections 302, 201 and 498-A of the Indian Penal Code was registered against the appellant. During the course of investigation, Investigating Officer PW9 PSI Abdul Sadik recorded the statements of the witnesses. The appellant came to be arrested. It is said that while in custody the appellant gave a confessional statement offering to produce a stick which was allegedly used as a weapon of offence in causing the death of deceased. The investigating officer raised a query referring the stick to Medical Officer and opinion was obtained. Prior to this, the clothes of deceased were also seized. The said clothes and wooden stick were sent for report of Chemical Analyser and the report inter alia showed absence of any blood on the stick which was Article 5. On completion of investigation, a chargesheet came to be filed in the Court of Judicial Magistrate, First Class at Achalpur, which was then committed to the Court of Session at Achalpur. At the trial, the prosecution examined in all 11 witnesses and produced the contemporary record of the investigation. The appellant neither entered into the witness box nor examined any defence witness. 5. The learned Sessions Judge found that Lalita met with homicidal death and it was the appellant who intentionally caused the death of Lalita on account of his suspicion on the character of his wife and disposed of the dead body into the well in order to cause disappearance of the evidence to screen himself from punishment. 5. The learned Sessions Judge found that Lalita met with homicidal death and it was the appellant who intentionally caused the death of Lalita on account of his suspicion on the character of his wife and disposed of the dead body into the well in order to cause disappearance of the evidence to screen himself from punishment. In the face of findings as above, the appellant came to be convicted and sentenced for offences as afore-stated. Feeling aggrieved, the appellant has come up in appeal. 6. We have heard Dr. U.K. Kalsi, leaned counsel for the appellant and Shri S.S. Doifode, learned Additional Public Prosecutor for the respondent-State. With the assistance of learned counsel for appellant, we have perused entire evidence and have gone through the impugned judgment. 7. It is submitted by the learned counsel for the appellant that the prosecution case rests upon circumstantial evidence as there is no eyewitness account of any assault by the appellant on the deceased. The learned counsel for the appellant was at pains to point out well established principles governing the case based on circumstantial evidence. It is submitted that each individual circumstance has to be established and they have to be of a conclusive nature. It is also submitted that all the circumstances taken together in this case fail to make out a complete chain unerringly pointing to guilt of appellant. The leaned counsel for appellant submitted that the so called discovery by appellant of the stick has been disbelieved by the learned Sessions Judge and would be otherwise in consequential in view of absence of any blood stains on the same. It is submitted that the circumstance, as to death being in the nature of custodial death, would also fall apart inasmuch as the appellant was found in the same well along with deceased and the prosecution has failed to explain the presence of appellant deep inside the well when he was shouting for help and to save himself and his wife. It is submitted that whole genesis of incident, as to how the deceased and the appellant were found in the well, is either not forthcoming or not properly explained by the prosecution and in that view of the matter the circumstances, as relied upon by the learned Sessions Judge, based on Section 106 of the Evidence Act could not have been called into aid. It is submitted that if both these circumstances are excluded, the only other circumstance about motive, even if assuming to be proved, would not be sufficient. The learned counsel for the appellant submits that even a strong suspicion cannot take the place of proof, which is the requirement in the case of present nature. The learned counsel has also challenged the death being homicidal in nature. The learned counsel for the appellant also refers to Modi's jurisprudence in submitting that there is a difference between dry drowning and immersion syndrome. In short, it is submitted that the possibility of deceased sustaining the injuries while plunging into the well by coming into the contact with iron angles before she entered the water of the well cannot be ruled out. She, therefore, submitted that the appeal be allowed. 8. On the contrary, it is submitted by the learned Additional Public Prosecutor that there is enough evidence on record to show that the appellant was suspecting the character of the deceased as she having illicit relations with one Anand Giri. It is submitted that, in fact, Anand Giri was found with the deceased sometime prior to incident in question and this would offer a strong motive for the appellant to commit the offence. It is submitted that admittedly it was the appellant and the deceased who were staying together and thus it was for the appellant to explain the circumstances under which the death of Lalita was caused as it was within his special knowledge. It is submitted that the learned Sessions Judge, was justified in relying upon the provisions of Section 106 of the Evidence Act, as one of the circumstance, to hold the appellant guilty. It is, therefore, submitted that the appeal be dismissed. 9. PW 10 Dr. Aruna Bhilawekar is the Medical Officer, who conducted autopsy on the dead body. It has come in her evidence that there was discharge of blood mixed froth from the nose of the deceased which is a symptom ordinarily found in the case of drowning, poisoning, sustaining head injury etc. The Medical Officer has found the following external injuries on the dead body : Injury No.1 : Abrasion 5cm. x 4cm. over right side of back scapular region. Injury No.2 : Abrasion 6 cm. x 5 cm. over medial aspect of arm and elbow joint. Injury No.3 : Abrasion 2 cm. x 2 cm. The Medical Officer has found the following external injuries on the dead body : Injury No.1 : Abrasion 5cm. x 4cm. over right side of back scapular region. Injury No.2 : Abrasion 6 cm. x 5 cm. over medial aspect of arm and elbow joint. Injury No.3 : Abrasion 2 cm. x 2 cm. over left hand near wrist joint. Injury No.4 : Abrasion 8 cm. x 2 cm. over right knee joint anterior aspect. Injury No.5 : Abrasion 5 cm. x 4 cm. over left arm medial aspect of elbow joint. Injury No.6 : Lacerated wound of size 5 cm. x 2 cm. x 2 cm. over right arm anterior aspect through which fractured bone comes out. On palpation the following external injuries were also noticed : Injury No.1 : Fracture left humerus upper 1/3rd of bone. Humerus means the bone in upper arm. Injury No.2: Fracture right humerus lower 1/3rd and lower end of fractured bone came out through skin as open fracture. 10. The Medical Officer also found all above injuries to be ante-mortem in nature. The Medical Officer has further found that there was fracture of base of skull in anterior cranal fossa of right side of cribri from plate approximately size 2 cm. and it was oblique in direction. There was brain haemorrhage present, having blood clot size 5 cm. x 4 cm. x 2 cm. over right parietal region involving temporal region. Lastly, it was also found that there was fracture of 4th and 5th ribs on right side anterior aspect. There was pleural tear on right side below 4th and 5th ribs. The lung was found filled with blood mixed froth due to laceration to right lung below 4th and 5th ribs. The said area was congested, haemorrhage was present and haemothorax approximately 450 to 500 ml was found. The Medical Officer has ultimately opined that the death was due to haemorrhagic shock with injury to vital organ brain and lungs associated with multiple fracture of bones. 11. It appears that on 7.4.2008, a requisition was sent to the Medical Officer seeking some further clarification, as to whether, the injuries mentioned above were prior to deceased drowning in the water. The Medical Officer, in this respect, has opined that the cause of death was not drowning and the death was caused before Lalita entered the water. The said opinion is at Exh.68. 12. The Medical Officer, in this respect, has opined that the cause of death was not drowning and the death was caused before Lalita entered the water. The said opinion is at Exh.68. 12. In the cross examination, this witness has admitted that she got the knowledge about the circumstances in which Lalita died from the documents which were forwarded to her by the police. This witness was confronted with the spot panchanama Exh.20 containing description of outer and inner portion of the well where the dead body of Lalita was found and the fact that there were iron angles and also a base fitted in the well for placing of water motor pump. This witness has admitted that if a person, while falling in the well, comes in contact with various angles and base of water pump, then the injuries, as mentioned above, can be sustained and in that case there is a possibility that the person would be dead before reaching the water level. On the basis of this evidence, it was submitted that the possibility of deceased sustaining the injuries while plunging into the well cannot be ruled out. 13. We do find in the face of medical evidence as forthcoming on the record that there is a clear possibility of injuries being sustained while the deceased might have plunged into the well before reaching the water level. Apart from this aspect, as discussed hereinafter, we find that other circumstances also would fall short and would be insufficient to return a finding of guilt against the appellant. 14. Undoubtedly, this case rests upon circumstantial evidence, as there is no eyewitness account of assault by the appellant on deceased or of appellant having disposed of the dead body in the well. The record, in the present case, discloses that initially the charge Exh.3 was framed against the appellant for the offence punishable under Sections 302 and 201 of the Indian Penal Code on 29.1.2009. After recording the evidence of some of the prosecution witnesses, alternate charge Exh.3-A for the offence punishable under Section 306 of the Indian Penal Code was framed on 16.4.2010 and, thereafter, PW4 Madhukar was recalled for further cross examination, which is recorded on 29.11.2010 followed by the rest of the prosecution witnesses. As stated earlier, the learned Additional Sessions Judge has convicted the appellant only under Sections 302 and 201 of the Indian Penal Code. As stated earlier, the learned Additional Sessions Judge has convicted the appellant only under Sections 302 and 201 of the Indian Penal Code. 15. Perusal of the impugned judgment would show that in para 25 of the judgment, the learned Additional Sessions Judge has culled out the following circumstances for holding the appellant guilty of the offences : (i) The accused and the dead body of the deceased were found in the well; (ii) The accused was found in the well and he had caught hold of a pipe in order to keep himself afloat; (iii) The accused was then shouting for help from within the well. (iv) The cause of death of the deceased was haemorrhagic shock with injury to the vital organ associated with multiple fracture of bones and the death was not due to drowning as the injuries were ante-mortem. (v) The accused used to ill-treat the deceased by taking suspicion about her character and it was alleged that the deceased had illicit relations with one Anand Giri who was even found in the house of the accused. (vi) The accused has not explained all the attending circumstances leading to the incident as required under Section 106 of the Evidence Act. 16. From the circumstances as mentioned above, it would appear that it is only the circumstances at Sr. No. (iv) to (vi) which may be of a definitive/conclusive nature and not the circumstances mentioned at Sr.No. (i) to (iii). It would be now necessary to examine, whether the circumstances can be said to be proved and would be sufficient to uphold the finding of guilt. 17. PW1 Shankar Gundane is a Circle Revenue Officer and had drawn a sketch map of the well where the dead body was found. It has come in the evidence of this witness that it was a government well which was at a distance of 100 ft. from the road. There were nearby houses around the well. The depth of the water was about 10ft. The witness has admitted that height of parapet wall of the well is not mentioned. This witness has admitted that there were angles fitted on one side of the well. However, he has not mentioned the number of the angles and the places were they are fitted. 18. PW2 Shailesh Malviya is a resident of village Diya and was acquainted with the appellant and the deceased. This witness has admitted that there were angles fitted on one side of the well. However, he has not mentioned the number of the angles and the places were they are fitted. 18. PW2 Shailesh Malviya is a resident of village Diya and was acquainted with the appellant and the deceased. It is the evidence of this witness that sometime in April 2008 in the midnight, while this witness was sleeping in his house, the aunt of appellant i.e. one Guddubai had informed that the appellant and his wife i.e. deceased have jumped into the well and their lives be saved. This witness then contacted Sachin Hande on mobile and called him for help to the well. This witness, in the meanwhile, has reached near the well where other had villagers already assembled with rope and torch etc. Sachin, in the meantime, also reached there. It was found that the deceased was lying in the middle portion of the water in the well in supine position. The appellant was found clinging to a pipe in the well and was shouting for help. The appellant, with the help of rope and pipe, came out and after coming out informed that Lalita is "probably dead". This witness then lodged a report with Police Station, Dharni. It has further come in the evidence of this witness that about one year prior to the death of Lalita, of one day appellant and his brother had come to his house at about 1 am to 2 am and told him that the deceased is having illicit relations with Anand Giri, who is present at his house (at the house of the appellant). Accordingly, the appellant, along with this witness and the Police Patil, had gone to the house of the appellant and found that Anand Giri was present in the house of the appellant. In the cross examination, this witness has admitted that Guddubai had informed him that accused Ramkisan had taken jump into the well for saving the life of his wife Lalita. This witness was confronted with the portion mark Exh.60-A in which this witness has stated that the appellant was crying in the well and was saying that his wife be saved. 19. PW3 Sandip is a panch, who had not supported the case of the prosecution. 20. PW4 Madhukar Umarkar is the father of the deceased. This witness was confronted with the portion mark Exh.60-A in which this witness has stated that the appellant was crying in the well and was saying that his wife be saved. 19. PW3 Sandip is a panch, who had not supported the case of the prosecution. 20. PW4 Madhukar Umarkar is the father of the deceased. It has come in his evidence that whenever Lalita used to come to her maternal house, she used to narrate about the ill-treatment of the appellant on account of appellant's suspecting on character. It is the further evidence that two days prior to the incident in question, Lalita had telephonically informed this witness that there is danger to her life and she be taken to her maternal house and she be saved. Thereafter, on 4.4.2008 at about 7.00 am this witness received a message from one Guddubai that Lalita is lying dead in a well. After this, this witness along with others went to village Diya and saw the dead body of his daughter in the well. Police had taken out the dead body and it was found that the right hand of Lalita was having a fracture and there was also injury to the head. This witness then lodged a report with Police Station, Dharni. It is the material evidence of this witness that a year prior to the incident, the younger brother of the appellant had come to his house informing that condition of Lalita is serious and she has been admitted in the hospital. This witness then went to village Diya and it was found that police were present at the house of the appellant and one Anand Giri was in custody of the police. This witness has deposed that he learnt that there was a love affair between Lalita and Anand Giri. In the cross-examination, this witness was questioned as regards the complaint Exh.28 being a computer typed report. This witness in categorical terms has stated that he does not know the contents of his complaint Exh.28. This witness was then cross-examined as to some improvements, as to this witness receiving a phone call of Guddubai and the incident which had allegedly taken place a year prior to the death of Lalita. This witness has admitted that he had lodged the report on the basis of suspicion about Lalita having been murdered. 21. This witness was then cross-examined as to some improvements, as to this witness receiving a phone call of Guddubai and the incident which had allegedly taken place a year prior to the death of Lalita. This witness has admitted that he had lodged the report on the basis of suspicion about Lalita having been murdered. 21. Next witness is PW5 Sundarlal Umarkar, who is the uncle of the deceased. His evidence is more or less similar to PW4 Madhukar. This witness has also deposed about alleged incident which had occurred a year prior to the death of Lalita. 22. Next witness is PW6 Salita Umarkar, who is the sister of deceased. It has come in her evidence that about four months prior to the incident, this witness has visited the house of the appellant for a fair arranged at village Titamba. The following morning, appellant raised a quarrel with Lalita and had physically assaulted her. This witness has then deposed that appellant caught hold of Lalita, took her on the road and there was one auto-rickshaw, the appellant asked auto-rickshaw driver to give two blows of footwear to Lalita and asked him as to whether he is having illicit relations with Lalita. 23. As regards the incident in question, this witness has stated that on the basis of phone call received from the aunt of the appellant, it was learnt that Lalita had fallen in a well, thereupon this witness and other family members had visited village Diya. This witness has stated that she has no personal knowledge about the incident of Lalita falling in a well. 24. The next witness is PW7 Virejdra Yadao, who was a API attached to Police Station, Dharni at the relevant time. He had investigated the case of Accidental Death bearing AD No. 16/2008 and had drawn an inquest panchanama and a spot panchanama at the well. This witness has admitted in cross-examination that during his investigation, it had transpired that Lalita had taken a jump in the well and the appellant also had jumped in the well for saving Lalita. 25. PW8 Kapil Jaiswal is a panch, who has not supported the case of the prosecution. PW 9 Abdul Sadik, who had investigated the Crime No. 47/2008 and had arrested the appellant. This witness has deposed that on 15.4.2008, during the course of interrogation, appellant showed willingness to discover a stick. 25. PW8 Kapil Jaiswal is a panch, who has not supported the case of the prosecution. PW 9 Abdul Sadik, who had investigated the Crime No. 47/2008 and had arrested the appellant. This witness has deposed that on 15.4.2008, during the course of interrogation, appellant showed willingness to discover a stick. Accordingly, the statement was recorded in the presence of panch, which is at Exh.50. The appellant then led the police and the panch to village Diya and produced a stick concealed in the bamboo trees from the field of one Kailash Malviya, which was accordingly seized as per panchanama Exh.51. This witness had also recorded the spot panchanama Exh.52 and had sent the seized articles to Chemical Analyser. This witness has stated that the incident in question had occurred during night time and did not find any witness, as to how, Lalita landed herself in the well. It may be mentioned that the recovery at the instance of the appellant has been disbelieved by the learned Sessions Judge and in our opinion rightly so. Even otherwise, the same would be inconsequential in the absence of any blood stain on the same and it being a common article found in every household in a village. 26. PW10 Dr. Aruna Bhilawekar is the Medical Officer, who conducted the autopsy and last witness is PW 11 Shevanti Umbarkar, who is the aunt of the appellant. This witness has stated that on the day of the incident, while she was sleeping at her house, she woke up on hearing a hue and cry raised by the appellant. This witness had gone to the well and had, thereafter, informed Sarpanch that appellant had fallen in the well. This witness was declared hostile as she did not support the case of the prosecution. 27. It would thus appear that prosecution has failed to show the genesis of the incident and the circumstances in which the appellant was also found in the well along with the deceased. As noticed earlier, there is evidence on record to show that the appellant was seeking help while in the well saying that he and his wife be saved. It would be further significant to note that the prosecution has not examined Guddubai, who had allegedly informed about both the appellant and the deceased being in the well. It is not known, whether her statement was recorded. It would be further significant to note that the prosecution has not examined Guddubai, who had allegedly informed about both the appellant and the deceased being in the well. It is not known, whether her statement was recorded. She would have been a witness to state as to her source of information or the circumstance under which both the appellant and the deceased landed themselves in the well. That is not forthcoming in this case. 28. Turning to the various circumstances, as relied upon by the learned Additional Sessions Judge, we have also noticed that it is only the circumstances at Sr. No. (iv) to (vi), which may be of a conclusive nature. We find that, except the evidence about motive that the appellant was suspecting the character of deceased and there was also one incident in which a year prior to the death of Lalita she was found along with one Anand Giri, there are no circumstance which can unerringly point to the guilt of the appellant. Motive alone would be insufficient to bring home the guilt against the appellant. As noticed earlier, there is evidence on record that the well was having iron angles and the base for fitting water motor pump fitted in the well and the Medical Officer has opined that injuries found on the dead body of Lalita could be caused, if the person while falling into the well hits the iron angles. Thus, the fact about the death being homicidal in nature also cannot be said to be conclusively established. 29. The last circumstance, as based on Section 106 of the Evidence Act, can come into play only when there is some semblance of prosecution evidence/circumstances pointing to the guilt of the appellant. It is trite that while the prosecution is obliged to prove its case beyond reasonable doubt, the accused can discharge the burden on preponderance of probability. We find that merely on the basis of a motive, the burden cannot be said to have shifted on the appellant for explaining the circumstances as required under Section 106 of the Evidence Act. As noticed earlier, the prosecution case as to under what circumstances the appellant was also found in the well is not clear. We find that merely on the basis of a motive, the burden cannot be said to have shifted on the appellant for explaining the circumstances as required under Section 106 of the Evidence Act. As noticed earlier, the prosecution case as to under what circumstances the appellant was also found in the well is not clear. In that view of the matter, we find that, at any rate, this would be a case where two views are equally possible and the one favouring the appellant would obviously prevail. Thus, in our considered view, the conviction under Sections 302 and 201 of the Indian Penal Code cannot be sustained. 30. Insofar as alternate charge under Section 306 of the Indian Penal Code is concerned, it may be mentioned that the prosecution did not come with a case of the deceased having committed suicide and of the appellant having abetted the same. The Court can not justifiably invent a entirely different case/story in the place of the one put-forth by the prosecution. At any rate, there is no evidence on record to show that the deceased met with a suicidal death and the appellant abetted the same. In that view of the matter, no recourse can be taken to the alternate charge as framed against the appellant. In the face of the findings as above, the following order is passed: ORDER (i) The appeal is allowed. (ii) The impugned judgment of conviction and sentence is hereby set aside. (iii) The appellant is acquitted of the charge for the offence punishable under Sections 302 and 201 of the Indian Penal Code. (iv) The appellant be set at liberty forthwith, if not required in connection with any other case. (v) The order, as regards disposal of the property, stands. Appeal allowed.