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2014 DIGILAW 1890 (BOM)

Vitthal Shankar Dombe v. State of Maharashtra

2014-08-27

ANUJA PRABHUDESAI, P.V.HARDAS

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JUDGMENT : P.V. Hardas, J. 1. The Appellant, who stands convicted for an offence punishable under Section 302 and 498-A of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 1,000/- in default to undergo S.I. for 6 months and R.I. for 2 years and to pay fine of Rs. 1,000/- in default to undergo S.I. For 6 months, with a direction that the substantive sentences shall run concurrently, by the Sessions Judge, Satara by Judgment dated 10.9.2008, in Sessions Case No. 63 of 2007, by this Appeal questions the correctness of his conviction and sentence. Facts as are necessary for the decision of this Appeal may briefly be stated thus. PW-11 PI Maruti Patil, who was attached to Police Station Vaduj, was entrusted with the accidental death Inquiry No. 40 of 2006 which was registered at the Police Station. It appears that PW-2 Ganesh, brother of deceased Asharani had reported the accidental death of Asharani and consequently the accidental death case was registered. The report of PW-2 Ganesh is at Exhibit 45. On the basis of the said report, PW-11 PI Maruti Patil immediately rushed to the scene of the incident and in the presence of the panchas drew the scene of the incident panchnama at Exhibit 31. From the scene of the incident he seized a 6 yard gray coloured saree. An inquest panchnama of the dead body of deceased Asharani was also drawn in the presence of panchas. A photographer was called and photographs of the scene of the incident were taken. The dead body was referred for postmortem examination. PW-2 Ganesh thereafter came to the Police Station and lodged his report at Exhibit 18. On the basis of the report of Ganesh at Exhibit 18, an offence was registered and the investigation was entrusted to PW-11 PI Patil. He recorded the statements of witnesses. The accused was arrested and during custodial interrogation, the Appellant expressed his willingness to point out the place where a blouse had been concealed by him. Accordingly, a memorandum was drawn in the presence of panchas at Exhibit 38. The accused led the police and the panch and produced a blouse which was seized under seizure memorandum at Exhibit 39. A mobile phone was seized from the brother of the accused under seizure memorandum at Exhibit 43. Accordingly, a memorandum was drawn in the presence of panchas at Exhibit 38. The accused led the police and the panch and produced a blouse which was seized under seizure memorandum at Exhibit 39. A mobile phone was seized from the brother of the accused under seizure memorandum at Exhibit 43. The seized property was referred for examination to the Chemical Analyzer and further to the completion of investigation, a charge-sheet against the Appellant was submitted. 2. Postmortem on the dead body of deceased Asharani was conducted by PW-1 Dr. Jathar. PW-1 Dr. Jathar noticed the ligature mark on the neck which was incomplete. He did not notice any oozing from the mouth, ear or nostril. It was upto the ear lobule on both side. It was a depressed wound. The skin over the mark was invariably dry and hard. The base of mark appear pale while edges shows small abrasions. The mark was found to be situated around the middle of the neck. There was bruising of skin over ligature mark and ecchymosed was present. No other injuries were present. The Medical Officer also noticed fracture of the thyroid cartilage on palpation. He therefore opined that the injuries were ante-mortem and further opined that cause of death was asphyxial death probably due to strangulation. The postmortem report is at Exhibit 12. 3. On the case being committed to the Court of Sessions, Trial Court framed charge against the Appellant for offence punishable under Section 302 and 498-A of the Indian Penal Code. The Appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined 11 witnesses while the accused in his defence examined 2 witnesses. The defence of the Appellant was that deceased Asharani had committed suicide. 4. In order to effectively deal with the submissions urged before us by the learned Counsel for the Appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. 5. PW-1 Dr. Jathar, who had conducted the postmortem on the dead body of deceased Asharani has clearly opined that the thyroid cartilage is fractured in cases of throttling and strangulation and not in cases of hanging. Ligature mark was in the centre of the neck and was incomplete. The Medical Officer therefore concluded that death was on account of strangulation and not on account of hanging. Though PW-1 Dr. Ligature mark was in the centre of the neck and was incomplete. The Medical Officer therefore concluded that death was on account of strangulation and not on account of hanging. Though PW-1 Dr. Jathar has been cross-examined at length, the cross-examination has not been able to make any dent in the examination-in-chief of the Medical Officer and has not affect his opinion at all. 6. Prosecution has examined PW-2 Ganesh, brother of deceased Asharani, who deposes about Asharani repeatedly informing him that the Appellant intended to marry his cousin Pinky because the Appellant was dissatisfied with the relationship with deceased Asharani. According to PW-2 Ganesh, the Appellant after consuming liquor used to assault deceased Asharani and this was done with an intention that deceased Asharani should consent for the second marriage of the Appellant. According to Ganesh, on 9.12.2006, the brother of the Appellant had informed that deceased Asharani was indisposed and therefore, Ganesh accompanied by his mother and his wife had gone to village Ambawade at 3.00 a.m. There they noticed dead body of deceased Asha which was kept in a sitting position against the wall. The Appellant had informed him that deceased Asha had committed suicide by hanging herself by a saree to ceiling fan. Thereafter, the police arrived and conducted the panchnama. 7. Prosecution has also examined PW-3 Indubai, mother of deceased Asharani, who also deposes on similar lines as that of PW-2 Ganesh. She also deposes about the intention of the Appellant to marry one Pinky, his cousin as he was dissatisfied with the physical relations with deceased Asharani. Prosecution has also examined PW-4 Anandrao, brother-in-law of deceased Asharani. PW-4 Anandrao also deposes that deceased Asharani had disclosed that the Appellant intended to marry his cousin Pinky because he was dissatisfied with the physical relations with deceased Asharani. Anandrao also deposes that the Appellant was torturing and ill-treating deceased Asharani in order to coerce her to give consent for the second marriage of the Appellant. 8. Prosecution has then examined PW-7 Chhaya, mother of Pinky. PW-7 Chhaya deposes that Pinky had accompanied deceased Asharani on a pilgrimage to Ashtavinayak for seven days. According to her, the Appellant had also accompanied them. According to Chhaya, Pinky had declined to perform marriage with the Appellant and there was a quarrel between the Appellant and Pinky. 8. Prosecution has then examined PW-7 Chhaya, mother of Pinky. PW-7 Chhaya deposes that Pinky had accompanied deceased Asharani on a pilgrimage to Ashtavinayak for seven days. According to her, the Appellant had also accompanied them. According to Chhaya, Pinky had declined to perform marriage with the Appellant and there was a quarrel between the Appellant and Pinky. In cross-examination PW-7 Chhaya has admitted that she had convinced the Appellant that he should not marry Pinky. 9. The Appellant has examined DW-1 Dr. Pawar, who was treating deceased Asharani as Asharani was suffering from breathlessness as she was allergic to dust. According to DW-1 Dr. Pawar, he had advised Asharani that she should not eat oily, cold or sour food. Asharani was also advised not to indulge in heavy work. According to him, he had treated her in 2002 and thereafter, she had come for further treatment. The Appellant has also examined DW-2 Dr. Katkar, who had examined deceased Asharani on 21.2.2002 as she was suffering from cough, cold and breathlessness. According to him, deceased Asharani was suffering from dust allergy and allergy of pollen grains. According to him, Asharani was also suffering from allergic bronchitis since her childhood and was taking medicines. According to him, Asharani had taken treatment in 2006. 10. On the basis of the defence evidence, the Appellant contends that as deceased Asharani was suffering due to dust allergy and bronchitis, deceased Asharani may have committed suicide. The Appellant, in response to his statement under Section 313 has admitted that he was present in the house and Asharani had committed suicide as she was suffering from Asthama. According to the Appellant, he was asleep and in order to save Asharani, he had untied the knot which Asharani had tied around her neck. According to the Appellant, Asharani had committed suicide by hanging herself. 11. The question before us is whether the prosecution has proved that deceased Asharani had died a homicidal death. The Appellant has admitted his presence in the house that Asharani had committed suicide and he was asleep in the house. The evidence of PW-1 Dr. Jathar clearly indicates that it was a case of strangulation and not a case of hanging. He has given his reasons as to why he came to the conclusion that deceased Asharani had been strangulated and had not died as a result of suicide. The evidence of PW-1 Dr. Jathar clearly indicates that it was a case of strangulation and not a case of hanging. He has given his reasons as to why he came to the conclusion that deceased Asharani had been strangulated and had not died as a result of suicide. In any event, the defence of the Appellant that Asharani committed suicide is not probablised at all and in fact is an improbable defence. The ceiling fan was at a height of 10 ft. and 2 inches from the ground. When the Police arrived, the saree was not tied to the fan but was lying besides the dead body of deceased Asharani. There is nothing on record to indicate that in fact Asharani had committed suicide by hanging herself to the fan. No other material or furniture was noticed with whose support Asharani could have tied the saree to the fan. The fan was admittedly at a height of 10 ft. and 2 inches from the ground. Moreover, the ligature mark clearly indicates that it was as a result of strangulation and not as a result of hanging. Accused has thus not been able to establish or probablise that deceased Asharani had committed suicide. 12. In respect of the charge for an offence punishable under Section 498-A of the Indian Penal Code, we find that the evidence is completely vague and omnibus. The prosecution witnesses have alleged that deceased Asharani was ill-treated as she was tortured by the Appellant in order to coerce into giving her consent for the second marriage. It appears that there is nothing on record which would probablise that the Appellant had either contracted second marriage or had expressed his desire to perform second marriage with Pinky. The evidence is extremely vague in respect of the ill-treatment and therefore, in our opinion, the offence punishable under Section 498-A of the Indian Penal Code has not been proved beyond reasonable doubt. The Appellant in that respect is entitled to be given the benefit of doubt. However, in respect of the charge for offence punishable under Section 302 of the Indian Penal Code is concerned, we find that the prosecution has proved the said offence beyond reasonable doubt. The Appellant has completely failed in probablising his defence that deceased Asharani has committed suicide. 13. We accordingly partly allow this Appeal. However, in respect of the charge for offence punishable under Section 302 of the Indian Penal Code is concerned, we find that the prosecution has proved the said offence beyond reasonable doubt. The Appellant has completely failed in probablising his defence that deceased Asharani has committed suicide. 13. We accordingly partly allow this Appeal. The conviction and sentence of the Appellant for offence punishable under Section 498-A of the Indian Penal Code is quashed and set aside and he is acquitted of the said charge. Fine if paid by the Appellant be refunded to him. The conviction and sentence of the Appellant for offence punishable under Section 302 of the Indian Penal Code is maintained. The Appeal challenging his conviction for offence punishable under Section 302 of the Indian Penal Code is dismissed confirming his conviction and sentence. Fees payable to the learned Counsel appointed for the Appellant quantified at Rs. 5,000/-.