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2018 DIGILAW 1504 (BOM)

Shobhelal v. State Of Maharashtra

2018-06-26

MANISH PITALE

body2018
JUDGMENT Manish Pitale, J -By this appeal, the appellants have challenged the judgment and order dated 16-12-2004, passed by the Sessions Court, Bhandara (trial Court) in Sessions Trial No.10 of 1999, whereby the appellants have been convicted under Section 304I read with Section 34 of the Indian Penal Code (IPC) and they have been sentenced to suffer rigorous imprisonment for 10 years each and to pay fine of Rs. 2000/ each. 2. The prosecution case in brief is that one Taman, son of complainant Tejubai (PW3) returned home from work in the evening on 01-12-1998. He was annoyed with his mother Tejubai (PW3) as she had not cooked food and he started abusing her and asked her to leave the house. As the said Taman rushed towards Tejubai (PW3) to beat her, she left the house, upon which Taman followed her with stick in his hand and inadvertently beat one Shantabai (mother of accused no.1appellant no.1Shobhelal herein). As the said Shantabai went to her son (appellant no.1) and told him about the incident, he was enraged and he rushed towards the house of the said Taman with his two friends (appellant nos. 2 and 3). As per the prosecution case, the three accused persons (appellants herein) then dragged the said Taman out of the house and beat him mercilessly with kicks and blow. Thereafter, they took him inside and hanged him to window with the help of Nylon rope thereby strangulated him, resulting in his death. 3. When the complainant (PW3) saw her son in the said condition she raised hue and cry. But, a report dated 02-12-1998 was lodged with the Police purportedly by the complainant Tejubai (PW3) in which it was stated that her son, the deceased Taman, had strangulated himself. On this basis, a report of accidental death was registered in the Police Station. This report was submitted at the behest of Police Patil. It is the case of the prosecution that when the Investigating Officer (PW8) in the present case undertook investigation and recorded statements, he found that the incident in question had not occurred in the manner in which it was reported and thereupon he submitted a report on 03-12-1998 in Police Station Goregaon, whereby a First Information Report (FIR) was registered against the appellants for the death of said Taman under Section 302 read with Section 34 of the IPC. 4. 4. Body of the deceased was sent for post mortem and the report showed that the said Taman had died due to asphyxiation caused by strangulation. On the basis of the material collected during investigation, a chargesheet was submitted and the appellants were charged for having committed an offence under Section 302 read with Section 34 of the IPC. 5. In support of its case, the prosecution examined nine witnesses. The material witnesses are (PW1) panch witness for inquest panchanama and spot panchanama, (PW3) the complainant and the mother of the deceased, (PW7) the doctor, who conducted the post mortem and (PW8) the Investigating Officer. In the present case, PW4, PW5 and PW6 were examined by the prosecution as the eye witnesses to the incident but they turned hostile and therefore, it was essentially the evidence of complainant (PW3) that supported the case of the prosecution. 6. On the basis of the evidence and material on record, the trial Court found that despite the aforesaid eye witnesses turning hostile, there was sufficient evidence on record to show that the appellants were indeed responsible for the death of the said Taman. The trial Court found that although the appellants were responsible for the death, their case fell in Exception 4 to Section 300 of the IPC. Accordingly, the trial Court convicted the appellants under Section 304I of the IPC instead of Section 302 of the IPC. The trial Court found that no leniency could be shown to the appellants for the manner in which they had strangulated the deceased and thereafter they had sought to mislead the investigation by showing as if the deceased had committed suicide. On this basis, the trial Court sentenced the appellants to suffer rigorous imprisonment for ten years. Aggrieved by the same, the appellants have filed this appeal. 7. Shri I.S. Charlewar, learned Counsel appearing on behalf of the appellants submitted that when PW4, PW5 and PW6 had turned hostile and there was no eye witness to support the prosecution case, the trial Court had committed an error in passing the impugned judgment and order. It was contended that the evidence of complainant (PW3) was not enough to convict the appellants because she had not stated anything about the alleged assault by the appellants on the deceased and the medical evidence on record also did not support the case of the prosecution at all. It was contended that the evidence of complainant (PW3) was not enough to convict the appellants because she had not stated anything about the alleged assault by the appellants on the deceased and the medical evidence on record also did not support the case of the prosecution at all. It was contended that when there was sufficient material to show that the deceased was a drunkard, it was possible that he had suffered self inflicted injuries leading to his death. According to learned Counsel, there was hardly any material to connect the appellants to the incident in question. On this basis, the learned Counsel for the appellants submitted that the impugned judgment and order deserved to be dismissed. 8. Per contra, Mrs. Swati Kolhe, learned APP appearing on behalf of the State submitted that even if the eye witnesses in the present case had turned hostile, the evidence of complainant (PW3) read with evidence of doctor (PW7) and the inquest panchanama, as also the post mortem report were enough to show that the trial Court had correctly convicted and sentenced the appellants. In the present case, it was submitted that the ligature marks being horizontal and all around the neck demonstrated that there was no question of the deceased having hanged himself with a Nylon rope, as suggested by the defence and that the medical evidence on record was sufficient to show that the injuries suffered by the deceased were not self inflicted. The evidence of complainant (PW3) was enough to show that it was indeed the appellants who were responsible for the death of said Taman. It was further contended that the complainant (PW3) was a rustic woman and there were minor variances found in her deposition, which could not be said to be fatal for the prosecution. The learned APP placed reliance on the judgment of the Division Bench of this Court in the case of Smt. Varsha w/o Baba Itankar vs State of Maharashtra , (2008) AllMR(Cri) 3190. 9. Heard Counsel for the parties. In the present case, it is evident from the record that three eye witnesses to the incident i.e PW4, PW5 and PW6 turned hostile. They deposed before the Court that they knew nothing about the incident. This was diametrically opposite what they had stated in their statements made to the Police. 9. Heard Counsel for the parties. In the present case, it is evident from the record that three eye witnesses to the incident i.e PW4, PW5 and PW6 turned hostile. They deposed before the Court that they knew nothing about the incident. This was diametrically opposite what they had stated in their statements made to the Police. Therefore, it was essentially the evidence of complainant (PW3 and the mother of deceased), which supported the case of the prosecution. A perusal of the evidence of said witness shows that she has categorically stated that the report submitted on 02-12-1998 in her name by the Police Patil was false and that the said report did not correctly describe the incident in question. This witness has then stated about the manner in which the incident occurred on 01-12-1998. She has categorically stated that the appellants had come with intention to beat the deceased in her house. She then stated that she left the house to call the neighbours because she was scared and when she came she saw the appellants were fleeing from the spot and that her son was found hanging from the window with a Nylon rope around the neck. It has come in her evidence that the deceased had inadvertently beaten the mother of appellant no.1 under a wrong impression, leading to the said appellant no.1 becoming enraged and assaulting her son along with the other appellants. In the cross examination, the defence of this witness has not been discredited in any manner. 10. The other relevant witness in the present case is PW7, the doctor, who had conducted the post mortem. A perusal of the evidence of said witness shows that there was a ligature mark completely encircling the neck of the deceased and that the cause of death was asphyxia due to strangulation. In the cross examination this witness has categorically stated that complete ligature mark encircling the neck is possible only when the rope ends are stretched by external force. The said witness has also stated that the upper limb of the deceased was flexed and fist was clenched, indicating that there was struggle at the time of death. It was also stated that there was no mark of knot noticed on the ligature mark. 11. The said witness has also stated that the upper limb of the deceased was flexed and fist was clenched, indicating that there was struggle at the time of death. It was also stated that there was no mark of knot noticed on the ligature mark. 11. The inquest panchanama in the present case shows that there was black coloured injury on the left shoulder and the arm was swollen. The post mortem report shows that the stomach of the deceased was full of rice. It is evident that although PW4 was one of the eye witnesses in the present case who had turned hostile, but in his evidence this witness has stated that the Sarpanch and Police Patil had forcibly obtained his signature on Exhibit24 i.e. the report purportedly submitted by the complainant (PW3) on 02-12-1998 regarding the deceased having strangulated himself. This indicates that the initial report dated 02-12-1998 said to have been submitted by the complainant (PW3) was absolutely false, as deposed by the complainant herself. Therefore, the evidence on record does indicate that there was attempt made initially to give an impression as if the deceased had strangulated himself and that no third person could be blamed for his death. 12. But, the medical evidence on record in the present case read with the evidence of the complainant (PW3) indicates that the injuries found on the body of the deceased were not self inflicted. The nature of injuries suffered in hanging and strangulation are different. The differences have been stated in a tabulated form in Modi''s Medical Jurisprudence and Toxicology, Twentythird Edition as follows : "Differences between Hanging and Strangulation The differences between hanging and strangulation are given below in tabulated form: Hanging Strangulation 1 Mostly suicidal 1 Mostly homicidal 2 Face-Usually pale and petechiae rare 2 Face Congested, livid and marked with petechiae 3 Salvia-Dribbling out of the mouth down on the chin and chest 3 Salvia No such dribbling 4 NeckStretched and elongated in fresh bodies 4 NeckNot so. 5 External signs of asphyxia, usually not well marked 5 External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotid sinus effect) 6 Bleeding from the nose, mouth and ears very rare 6 Bleeding from the nose, mouth and ears may be found. 5 External signs of asphyxia, usually not well marked 5 External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotid sinus effect) 6 Bleeding from the nose, mouth and ears very rare 6 Bleeding from the nose, mouth and ears may be found. 7 Ligature markoblique, non-continuous placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchmentlike. 7 Ligature mark-Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. 8 Abrasions and ecchymoses round about the edges of the ligature mark, rare. 8 Abrasions and ecchymoses round about the edges of the ligature mark, common. 9 Subcutaneuous tissues under the markWhite, hard and glistening. 9 Subcutaneous tissues under the mark Ecchymosed. 10 Injury to the muscles of the neckRare 10 Injury to the muscles of the neckcommon. 11 Carotid arteries, internal coats ruptured in violent cases of a long drop 11 Carotid arteries, internal coats ordinarily ruptured. 12 Fracture of the larynx and tracheaVery rare and that too in judicial hanging. 12 Fracture of the larynx and tracheaOften found also hyoid bone. 13 Fracturedislocation of the cervical vertebrae Common in judicial hanging. 13 Fracture dislocation of the cervical vertebrae Rate. 14 Scratches, abrasions and bruises on the face, neck and other parts of the bodyusually not present. 14 Scratches, abrasions fingernail marks and bruises on the face, neck and other parts of the body Usually present. 15 No evidence of sexual assault. 15 Sometimes evidence of sexual assault. 16 Emphysematous bullae on the surface of the lungs Not present 16 Emphysematous bullae on the surface of the lungs May be present. 13. The learned APP appearing on behalf of the State has relied upon the difference in ligature mark found in the case of strangulation as opposite to the mark found in case of hanging. In the case of hanging, the ligature mark is oblique while in the case of strangulation it is horizontal. This is significant in the present case because, the post mortem report, supported by the evidence of doctor (PW7) shows that not only was the ligature mark horizontal in the present case, but it was present all around the neck of the deceased. This is significant in the present case because, the post mortem report, supported by the evidence of doctor (PW7) shows that not only was the ligature mark horizontal in the present case, but it was present all around the neck of the deceased. Therefore, the cause of death being asphyxia due to strangulation is clearly proved in the present case. 14. The said evidence read with the evidence of complainant (PW3) brings out the manner in which the incident occurred, which resulted in the death of son of complainant. The evidence of complainant (PW3) shows that the appellants did rush towards the house of the deceased when they came to know about the deceased having assaulted the mother of appellant no.1 and this resulted in the appellants undertaking actions causing the death of son of the complainant. It is difficult to believe that the deceased would have suffered self inflicted injuries resulting in death. As opined by doctor (PW7), the ligature mark of strangulation all around the neck of the deceased in the present case clearly indicates the use of external force by way of Nylon rope which resulting in asphyxia and death of Taman. The presence of appellants has been established by the evidence of complainant (PW3). Although she is the solitary witness who has supported the case of the prosecution, her evidence cannot be discarded only for that reason. It is not the quantity but the quality of evidence that is crucial for deciding the culpability of the accused in such cases. 15. The trial Court has taken into consideration all these aspects of the present case while holding that the prosecution was able to prove its case beyond reasonable doubt against the appellants. The medical evidence and the evidence of the complainant (PW3) has been analyzed in the correct perspective by the trial Court while passing the impugned judgment and order. The trial Court has taken into consideration the manner in which the incident occurred, while holding that the appellants could not be convicted and sentenced under Section 302 of the IPC and it has correctly held that in the facts and circumstances of the present case, the appellants were entitled to benefit of Exception 4 to Section 300 of the IPC while convicting them under Section 304I of the IPC. 16. 16. Although the trial Court has taken into consideration the fact that the appellant no.1 was enraged due to the fact that the deceased had assaulted his mother, while imposing sentence against the appellant, this factor has not been applied to its fullest to the facts and circumstances of the present case. Even though the conviction recorded by the trial Court under Section 304I of the IPC cannot be found fault with, imposing sentence of rigorous imprisonment for 10 years appears to be on the higher side. Therefore, taking into consideration the manner in which the incident occurred and the fact that even according to the prosecution case the deceased had assaulted the mother of appellant no.1, although by mistake, the appellants deserve some leniency. Therefore, it would be just and proper in the present case if the sentence is reduced. Accordingly, while upholding the conviction granted by the trial Court, this appeal is partly allowed only to the extent that instead of the appellants undergoing rigorous imprisonment for 10 years, they are sentenced to suffer rigorous imprisonment for a period of 7 years. The fine amount imposed by the trial Court is maintained. 17. In the light of the above, this appeal is partly allowed in the above terms. In this case, by an order dated 21-05-2018, non bailable warrants were issued against the appellants, they were taken into custody and then they were sent to judicial custody. As their conviction is upheld and their sentence is reduced in the aforesaid manner, they shall remain in custody to serve out the sentence.