Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 2472 (BOM)

Hanamant Tatyaba Dhokale v. State Of Maharashtra

2019-11-07

N.B.SURYAWANSHI, S.S.SHINDE

body2019
JUDGMENT N.B. Suryawanshi, J. - By this Appeal the Appellant/Original accused No. 1 challenges the Judgment and order of conviction dated 20th August, 1996 passed by the learned IInd Additional Sessions Judge, Satara in Sessions Case No. 23 of 1993 for the offence punishable under section 302 of Indian Penal Code, wherein the sentence imprisonment for life was imposed and the Appellant was directed to pay fne of Rs. 500/- and in default further sentence of rigorous imprisonment for one month was passed. Further the Appellant/accused was convicted for the offence under Section 201 of Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay fne of Rs. 500/- and in default further sentence of rigorous imprisonment for one month was passed. 2. The prosecution case in short is that, Maruti Kadam (complainant- PW.7) the father of deceased Rukmini, gave information that the marriage of Appellant with Rukmini took place on 29th March, 1992 at village Dhokalwadi. After marriage, Rukmini came to matrimonial house for pooja. On 4th April, 1992 the informant Maruti brought Rukmini as per custom to her maternal house, where Rukmini stayed for 3 weeks. Accused No. 2 Tatyaba, father in law went to the house of informant to bring Rukmini back for cohabitation. However, since Rukmini was having menstrual cycle, she did not accompany him. In the month of May, 1992 informant Maruti brought Rukmini to the matrimonial house at Dhokalwadi. He stayed there for one night and returned home on the next day. About 15 days thereafter, Mirabai (PW. 3) visited Dhokalwadi. At that time, Rukmini informed her mother that she experiences severe pain during intercourse with her husband. On next day mother of Rukmini returned and informed the said fact to her husband. 3. On 30th May, 1992 at about 11.00 am, one boy came from Dhokalwadi on motor-cycle and gave massage to the informant that Rukmini is serious. On receipt of said information, parents of Rukmini with some other relatives rushed to village Dhokalwadi. On reaching at the village, they were asked to proceed towards one water well. The dead body of Rukmini was seen foating in the well. After some time, police reached on the spot and took out the dead body, inquest panchanama was recorded. Mother and other relatives noticed blood oozing from the private part of Rukmini. On reaching at the village, they were asked to proceed towards one water well. The dead body of Rukmini was seen foating in the well. After some time, police reached on the spot and took out the dead body, inquest panchanama was recorded. Mother and other relatives noticed blood oozing from the private part of Rukmini. The informant inquired in the village and he was informed by the villagers that on 29th May, 1992 all the accused persons had visited marriage of cousin sister of Accused No. 1. After marriage, all the accused, Rukmini came back along with relatives. On inquiry from accused Nos. 2 and 3 the informant could not get proper explanation. This raised suspicion in the mind of the informant that there was some foul play in the incident. He therefore, alleged that during the night of 29th May, 1992, accused No. 1 had forcible sexual intercourse with the deceased though she was physically weak. During the intercourse, accused No. 1 gagged mouth and nose of the deceased with an intention that she should not shout. But it caused death of Rukmini. Thereafter, all the accused removed the dead body and the dead body was thrown in the well and thereafter the accused persons destroyed evidence. The dead body of Rukmini was sent to Cottage Hospital, Kaledhon for postmortem. After postmortem, the investigating offcer found that there was strong suspicion in the mind of informant hence, he recorded the statement of the father of the deceased and registered offence at C.R. No. 67 of 1992 at Vaduj police station under section 302 and 201 read with 34 of Indian Penal Code. On completion of the investigation charge sheet was fled and accused persons were charged for the offence punishable under section 302 and 201 read with 34 of Indian Penal Code. 4. The prosecution in support of its case, examined in all 11 witnesses. Gulab Jadhav (PW.1), panch witness to the spot panchanama of well. Satish Raut (PW.2) panch witness for seizure of clothes of deceased (Exhibit 12) so also house panchanama of accused from where chaddar, blanket were seized (Exhibit 16). Mirabai Kadam (PW.3), mother of deceased. Sindhu Atkari (PW. 4), sister of deceased and Chaya Pawar (PW.5) friend of deceased on the point of pain suffered by the deceased during sexual intercourse with the husband. Dr. Mirabai Kadam (PW.3), mother of deceased. Sindhu Atkari (PW. 4), sister of deceased and Chaya Pawar (PW.5) friend of deceased on the point of pain suffered by the deceased during sexual intercourse with the husband. Dr. Milind Madane (PW.6) is the medical offcer who has performed postmortem and proved the postmortem report (Exhibit 22), death certifcate (Exhibit 23), C.A. report (Exhibit 24) and death certifcate of deceased (Exhibit 25) which was issued after receipt of C.A. report. Maruti Kadam (PW.7) the father of the deceased and the frst informant. Mathabai Suryawanshi (PW.8) cousin of accused No. 2. Janardhan Tiwate (PW. 9) & Sarjerao Kanase (PW. 10) are investigating offcers. Vishwanath Shingate (PW.11) is Head Constable who conducted inquest panchanama (Exhibit 11). 5. The defence as is revealed from the tenore of cross examination and from the statement under section 313 of Cr.P.C. that the deceased Rukmini was capable of sexual intercourse and never resisted during the intercourse. In the night of 29th May, 1992 after returning from the marriage late in the night, since it was month of May the relatives stayed at the home of the accused. Accused No. 2 saw Rukmini going to attend the natures call by taking mug/pot at about 5.00 am. Even Mathabai (PW.8) saw Rukmini going. The spot of incident i.e. well is situated at 1500 fts. from the Eastern side of village where the ladies of village used to go for attending natures call. Probably Rukmini wanted to take water from the well and must have fell in the water and due to water entering into her mouth, she expired. Upon search of Rukmini, at about 10.00 am somebody went to the well near odha and noticed the pot and foating chappal in the well. Therefore, all the villagers rushed to the said well. It was noticed and confrmed that the dead body of Rukmini was in the well. Thereafter, police arrived on the spot at about 2.00 p.m. 6. The learned trial Court after assessing the evidence on record convicted the Appellant, however acquitted accused Nos. 2 and 3. 7. Heard learned counsel for the Appellant and the learned APP for the State, perused the original record. 8. Thereafter, police arrived on the spot at about 2.00 p.m. 6. The learned trial Court after assessing the evidence on record convicted the Appellant, however acquitted accused Nos. 2 and 3. 7. Heard learned counsel for the Appellant and the learned APP for the State, perused the original record. 8. The learned counsel for the Appellant assailed the conviction on various grounds including that the appreciation of the evidence on the part of learned trial Court is erroneous and in absence of suffcient evidence to prove the guilt of the Appellant beyond reasonable doubt, the learned trial Court has recorded the conviction. The medical evidence has not been properly appreciated by the learned trial Court. So also the evidence of Mathabai (PW.8) and the admission given by Gulab Jadhav (PW.1) panch witness are wrongly ignored by the learned trial Court. 9. The learned counsel for the Appellant placed reliance on the judgment of the Hon''ble Apex Court in the case of Harendra Narain Singh vs. State of Bihar, (1991) AIR SC 1842 . to urge that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the later view favorable to the accused. He further relies upon the case of Jawahar Lal vs. State of C.G.,2015 SC(Chh) 232 . to urge that the accused persons cannot be made to suffer on the basis of insuffcient evidence holding that the death of deceased was homicidal. He further argued that in absence of proof of homicidal death, the accused cannot be convicted merely on the suspicion. He further relied upon the judgment in the case of Mayur Panabhai Shah vs. State of Gujrat, (1982) 2 SCC 396 . in support of his argument that in case of homicidal smothering caused by hands, there will be abrasions and contusions on and around the face and nose. 10. The learned APP on the other hand supports the judgment and argued that there is suffcient material on record to sustain the conviction of the Appellant. 11. Gulab Jadhav (PW.1) has given evidence that the water well where the dead body of deceased was found, is situated near one Odha locally known as ''Kanhericha Odha'' and villagers used to go to that place for answering natures call. 11. Gulab Jadhav (PW.1) has given evidence that the water well where the dead body of deceased was found, is situated near one Odha locally known as ''Kanhericha Odha'' and villagers used to go to that place for answering natures call. Towards the Odha side, the water well is in dilapidated condition. He has further stated in the cross examination that he rushed to the spot/well after he came to know about the incident and police availed his services as panch witness. He states that he noticed that chappal were foating on the water of the well and pot was found on the path of the well. 12. Mathabai Suryawanshi (PW.8) is the cousin of the Accused No. 2. She deposed that there was a marriage of cousin brother''s daughter Rekhabai at village Gudewadi at the relevant time. The marriage was attended by her. The accused Nos. 1 to 3 were also present along with Rukmini. The marriage was performed in the late evening and after enjoying the feast, Mathabai (PW.8) along with accused persons, Rukmini and other relatives came to the house of accused persons at Dhokalwadi and stayed there at night. They reached at Dhokalwadi late at night. Accused No. 1 and his wife slept in the house. Accused Nos. 2, 3 and Mathabai(PW.8) and other relatives were sleeping in the cort-yard. She narrated in her cross examination that she got up early at pre dawn, so as to proceed towards her village. When she got up from the bed, Rukmini met and offered her tooth powder/ mishri. At that time, Rukmini was asking her to accompany her to answer the natures call. However, since Mathabai was in a hurry to go to her village, she refused to accompany Rukmini and proceeded to her own village. It is to be noted here that this witness was sought to be declared hostile after she gave the above admission. However, the learned trial Court refused the request of the learned prosecutor to declare Mathabai (PW.8) hostile. 13. Dr. Milind Madane (PW.6) has given cause of death in the postmortem report (Exhibit 22) as "death due to asphyxia due to smothering or unknown poisoning". However, viscera is preserved for C.A." After the C.A. report (Exhibit 24) was received, it is stated that no recognizable poison was detected in the viscera. The said report was forwarded to PW. 6 Dr. Milind Madane (PW.6) has given cause of death in the postmortem report (Exhibit 22) as "death due to asphyxia due to smothering or unknown poisoning". However, viscera is preserved for C.A." After the C.A. report (Exhibit 24) was received, it is stated that no recognizable poison was detected in the viscera. The said report was forwarded to PW. 6 Dr. Milind and he issued the death certifcate (Exhibit 25) to the effect that the ''death was due to asphyxia due to smothering''. 14. We have carefully read the evidence of Dr. Milind (PW. 6) wherein he has stated that, if the newly married couple comes together for intercourse and the girl gives consent for the intercourse, the injury to the private part mentioned in column 15 of the postmortem notes is possible. He further states that if blood found oozing from the private part of the person, we may draw presumption that there might be forcible Vishal Parekar 10/20 intercourse and severe injury might be there. He further deposed that if the mouth and nose are gagged by the husband at the time of sexual intercourse, struggle is bound to be there and the wife in such case, would try to save her life and she would try her level best to remove her mouth and nose from the clutches of husband. If the legs and hands are free in that case, wife certainly would try to push her husband with the help of legs and hands. He further admitted that in such situation injuries are bound to occur around mouth and nose, so also near the angle of mouth, on cheeks and chin. The medical offcer has categorically admitted that he did not fnd any injury on the face of the deceased. So also no injury was found on the posterior part of the deceased particularly on the back and buttock of the deceased. He further admits that after mouth is pressed then certainly there would be injury to the internal surface of lips due to pressure. No such injury was found by the medical offcer. There was no injury on the internal side of lips or fracture of septum. He further admits that if someone presses mouth of the deceased with the help of woolen blanket or chaddar, some marks are bound to be caused on the face and those marks can be judged by the medical offcer. There was no injury on the internal side of lips or fracture of septum. He further admits that if someone presses mouth of the deceased with the help of woolen blanket or chaddar, some marks are bound to be caused on the face and those marks can be judged by the medical offcer. He did not fnd any such marks on the face of the deceased. 15. Dr. Milind (PW. 6) further admitted that if mouth of the deceased was pressed with the help of woolen blanket or chaddar in that event some marks are bound to be caused on her face and those marks can be judged by the medical person i.e. doctor. He died not fnd any such type of marks on the face of the deceased. He further deposed that smothering is possible after total air is blocked and had result into the death. The nose open in pharings and pharings opens in lyrin, lyrin opens to trashes and trashes goes to lung. Agreeing with the proposition from Modi''s Medical Jurisprudence, at page 207, 21st Edition, he agreed that in few cases death may occur from obstructive asphyxia, also known as dry dawning caused by laryngeal spasm, set up by small amount of water entering the laryngeal. He also admitted that in case of laryngeal spasm, water does not enter the lungs and classical sings of drawning will be absent. He agreed with the proposition from Modi''s book that about 20% to 40% of all drawings belong to the category of dry dawning. Referring Modi''s Medical Jurisprudence, he also agreed with the suggestion that in the case of death due to laryngeal spasm, the person will not be able to swallow the water and the stomach will be found empty. He further volunteered that some times water may go inside the body and the small quantity of water resulting in to laryngeal spasm, may or may not be noticed during the course of postmortem. He admitted that he did not notice the blood in the fattening. He did not mention in the postmortem report that the death of the deceased occurred in the mid night between 12 to 1 am. He also admitted that he did not mention in the postmortem notes as to within how much time after taking last meal, the death has occurred. He did not mention in the postmortem report that the death of the deceased occurred in the mid night between 12 to 1 am. He also admitted that he did not mention in the postmortem notes as to within how much time after taking last meal, the death has occurred. He did not mention about the age of the injury which was found on the labia minora and hymen. He admitted that if the mouth is gagged with chaddar in that event foreign articles may be found inside the nose. Lastly he agreed with the proposition of asphyxia can be either homicidal, accidental or suicidal. 16. The complainant Maruti Kadam (PW. 7), father of deceased has admitted in the cross examination that he does not remember the date on which his thumb impression was obtained by the police on the complaint. The contents of the complaint were directed by the police as per their own accord. He did not dictate the contents of complaint to the police. He further states that in spite of death of his daughter, he did not make any complaint to the police. Though in the next breath he states that complaint was lodged by him personally, but further he states that he does not know what was written on the paper on which his thumb impression was obtained because he is illiterate. 17. On the basis of this evidence, the learned trial Court convicted the Appellant for offence punishable under section 302 and 201 read with 34 of Indian Penal Code. It is a fact that death has occurred within three months of the marriage however, in our considered opinion, there is no cogent and reliable evidence brought on record by the prosecution to sustain conviction of the Appellant. 18. Admittedly, the case is based on circumstantial evidence. Forming the complete chain of circumstances which resulted into the death of deceased Rukmini, is lacking in the present case. The learned trial Court has relied upon the following circumstances. (i) The information to the parents of the deceased given by two boys on 20th May, 1992 at about 10 to 11 am and not accused No. 1 or his father. (ii) The information not specifcally given that dead body of Rukmini is lying in the water well. The learned trial Court has relied upon the following circumstances. (i) The information to the parents of the deceased given by two boys on 20th May, 1992 at about 10 to 11 am and not accused No. 1 or his father. (ii) The information not specifcally given that dead body of Rukmini is lying in the water well. (iii) The deceased and accused No. 1 were sleeping inside of the house in the midnight of dated 29th May, 1992. (iv) The age factor of accused No. 1 and his wife. (v) The date of their marriage (vi) The injuries found on the person of deceased more particularly hymen was teared, labia minora torn on right posterior side admeasuring 1 cm x cm x cm, clotted blood 1/2 1/2 was seen near private part. (vii) The blood stains found on the peticoat of the deceased. 19. The learned trial Court came to the conclusion that the Appellant is alone responsible for the death of Rukmini. According to learned trial Court, the said circumstances are conclusive in nature to prove the guilt of the Appellant/ accused. The learned trial Court without assigning any reason, refused to accept the version of Mathabai (PW. 8) only on the ground that she is relative of accused No. 2 and hence, she has helped her brother. The learned trial Court proceeded to take judicial notice from the version of Mathabai (PW.8) that the only benefciary of her version are the accused persons and therefore her version was held to be doubtful by the learned trial Court which according to us is totally erroneous approach on the part of the learned trial Court. The reasoning adopted by the learned trial Court for discarding the evidence of Mathabai (PW.8) is erroneous and the same is unsustainable. The learned trial Court has proceeded to hold that the only accused No. 1 is guilty and accused Nos. 2 and 3 since were slipping in cort-yard along with other guests, accused No.1 must not have taken their help. This fnding in our opinion is based on surmises and conjecture, and learned trial Court was not justifed in recording the same. 20. As we have already observed that there is no material on record to complete the chain of circumstances which establishes the guilt of the Appellant/accused. This fnding in our opinion is based on surmises and conjecture, and learned trial Court was not justifed in recording the same. 20. As we have already observed that there is no material on record to complete the chain of circumstances which establishes the guilt of the Appellant/accused. The golden principles laid down by the Hon''ble Apex Court in the land mark judgment of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 . are completely ignored by the learned trial Court while recording the conviction. The principles are as under: (1) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ''may be'' fully established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 21. After going minutely through the evidence of Dr. Madane (PW.6), we are of the considered view that the prosecution has failed to prove that that the death of Rukmini was homicidal. Rukmini might have suffered a accidental death which is also probabalized in view of the evidence of medical offcer. The absence of injuries on the face, nose, around and inside the mouth of the deceased create serious doubt about the prosecution version that accused No. 1 gagged mouth of the deceased during the sexual intercourse, due to which she died by smothering. The evidence of medical offcer casts serious doubt on the prosecution version and strong possibility of accidental death of Rukmini emerges on record. Learned counsel for the Appellant was right in placing reliance in the case of Mayur Shah (supra) wherein it is held as follows: "External fndings vary according to the nature and method used to cause the smothering." In case of homicidal smothering caused by hands, there will be abrasions and contusions over and around the face and nose. Learned counsel for the Appellant was right in placing reliance in the case of Mayur Shah (supra) wherein it is held as follows: "External fndings vary according to the nature and method used to cause the smothering." In case of homicidal smothering caused by hands, there will be abrasions and contusions over and around the face and nose. The abrasions are usually crescent shaped nail scratch abrasions. There may be fracture of the nasal cartilage and there may be bleeding from the nose with occasional bleeding from the mouth. If smothering has been caused by some soft material, then there may not be much external sign near the mouth and the nose. But there may be depression of the nose with bleeding from the nose. The inner aspects of the lips may show abrasion, contusion or even lips may show abrasion, contusion or even laceration, due to friction with the teeth. There may be loosening of the teeth with signs of bleeding from the gum. IN case he face is pressed against some hard surface, there will be gross abrasion, contusion and even laceration on the skin around the mouth and the nose. In such a case, possibility of fracture of the nasal bone or cartilage is more. Injury to the inner aspect of the lips, soft gum and dislocation of teeth are more common and extensive. In homicidal smothering, there may be signs of struggle or resistance over other areas of the body. In accidental smothering due to compression over the mouth and nose there will be abrasions, contusions or even laceration outside the mouth and the nose with fracture of the nasal bone or the cartilage and bleeding from the nose and the mouth. Abrasions, contusions, lacerations may be found in the inner aspects of the lips and on the soft gum with fracture dislocation of the teeth. In epileptics there may be injury on the tongue due to its being bitten by teeth. In accidental smothering due to fall on dust or fout etc. stain of these materials may be present outside the mouth and nose as also inside the mouth and nasal cavity. There will not be any mark of resistance or violence at any other part of the body. In accidental smothering due to fall on dust or fout etc. stain of these materials may be present outside the mouth and nose as also inside the mouth and nasal cavity. There will not be any mark of resistance or violence at any other part of the body. In case of smothering occurs due to compression against some soft material then there may not be much fndings, as already seen in case of homicidal effort." 22. If we apply the above principles to the facts of present case, it is clear that prosecution has failed to prove homicidal death of Rukmini, beyond the reasonable doubt and the learned trial Court was not justifed in recording the conviction of the Appellant. In our considered view, there is no cogent, reliable and clinching circumstantial evidence brought on record, to form a complete chain, which leads to the only conclusion that it was the Appellant who has committed crime. Hence, the impugned judgment and order of conviction is unsustainable & the same is liable to be quashed and set aside. 23. In view of above, we pass the following order. (i) The Appeal is allowed. (ii) The impugned judgment and order dated 20th August, 1996 passed by the Additional Sessions Judge, Satara in Sessions Case No. 23 of 1993 is quashed and set aside. (iii) Accused Hanamant Tatyaba Dhokale is acquitted from the offence punishable under section 302 of the I.P.C. (iv) The fne amount, if any, deposited by the appellant, shall be refunded to him. (v) The appellant is already on bail. The bail bonds shall stand cancelled. (vii) The Appellant shall furnish bail of Rs.15,000/- with one surety in the like amount in terms of section 437(1) of Code of Criminal Procedure and appear before the Hon''ble Supreme Court as and when notice is issued by the Apex Court.