Bombay High Court Ravindra Subhana Dadake, Jai-vs-State Of Maharashtra (At The on 13 August, 2008
Bench: Ranjana Desai, Dr. D.Y. Chandrachud
AJN
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.558 OF 2005
Ravindra Subhana Dadake, Jai )
Santoshimata Nagar, Himalaya )
Society, Narayan Nagar, Ghatkopar, )
Mumbai – 400 084 (through Jail). ) …. Appellant (Orig. Accused)
Versus
State of Maharashtra (At the instance )
of Ghatkopar Police Station). ) …. Respondent (Orig. Complainant)
Mr. Abhaykumar Apte, advocate appointed for the appellant. Ms. P.H. Kantharia, A.P.P. for the State.
CORAM : SMT. RANJANA DESAI &
DR. D.Y. CHANDRACHUD, JJ.
DATE ON WHICH THE JUDGMENT IS
RESERVED : 29TH JULY, 2008.
DATE ON WHICH THE JUDGMENT IS
PRONOUNCED : 13TH AUGUST, 2008.
JUDGMENT:- (Per Smt. Ranjana Desai, J.)
1. The appellant was tried in the Court of Sessions for Greater Bombay in Sessions Case No.258 of 2003 for the offences AJN
2
punishable under sections 498A and 306 of the Indian Penal Code (for short, “the IPC”). Towards the end of the trial, due to the evidence that came on record, learned Judge felt that an additional and alternative charge needs to be framed for offence punishable under section 302 of the IPC and, accordingly, it was framed. By judgment and order dated 22/12/2004, learned Additional Sessions Judge convicted the appellant for the offences punishable under sections 498A and 302 of the IPC. Learned Additional Sessions Judge sentenced him to suffer Rigorous Imprisonment for three years for the offence punishable under section 498A of the IPC and to pay fine of Rs.500/-, in default, to suffer Rigorous Imprisonment for three months. The appellant was also sentenced to undergo Rigorous Imprisonment for life for the offence punishable under section 302 of the IPC and to pay a fine of Rs.1,000/-, in default, to suffer further Rigorous Imprisonment for six months. The substantive sentences were ordered to run concurrently. It is the said judgment and order, which is challenged in this appeal. For the sake of convenience, we shall refer to the appellant as “the accused” in this judgment.
2. It would be advantageous to begin with the facts of the case. AJN
3
The accused got married to Saidabai @ Savita @ Kavita (for convenience, “the deceased) in the year 1993. They started residing in Ramabai Colony at Ghatkopar, Mumbai. They had three daughters and one son. The accused was a mason by profession. He was addicted to liquor. He used to neglect his children. He used to constantly quarrel with the deceased and he used to ill-treat her. He had developed illicit relationship with one Mangal Shinde, who was his neighbour.
3. On 21/1/2003, the deceased was found hanging by her sari from the ceiling fan of their house. A complaint came to be lodged by the brother of the deceased by name Manik Ingle on 22/1/2003 at about 00.05 hours. It was treated as FIR and investigation was started. After completion of the investigation, the accused was charged as aforesaid.
4. At the trial, the prosecution examined, in all, 10 witnesses. PW-1 Ratna Whatkar is the cousin of the deceased. PW-2 Manik Ingle and PW-3 Ramesh Ingle are brothers of the deceased. PW-4 Phulabai Ingle is the mother of the deceased. PW-5 Indrajit Azad is the photographer. PW-6 Shamrao Ingle is the father of the AJN
4
deceased. Medical evidence is brought on record through PW-7 Dr. Rajesh Dhete and PW-8 Dr. Shivaji Kachare. PW-9 Pooja Dadake is the minor daughter of the deceased. The details of the investigation have been given by PW-10 PI Abhay Salgaonkar.
5. The defence of the accused is one of total denial. The case of the accused as suggested by all the family members of the deceased is that the deceased was mentally unsound and that she committed suicide. This case has been denied by all the witnesses. In his statement recorded under section 313 of the Criminal Procedure Code, (for short, “the Code”), the accused has admitted that he used to assault his children. He has also admitted that he had an affair with Mangal. When his photograph with Mangal was shown to him and he was asked what he has to say about the prosecution case that it was in his pocket and that his daughter had shown it to the deceased, he stated that it is true. He has admitted that his daughter PW-9 Pooja saw the deceased hanging with her sari around her head and neck and that the father of the deceased pulled her down. He has stated that he does not know whether the legs of the deceased were touching the stool. When he was asked whether he wanted to say anything, he AJN
5
stated that the deceased had done this twice before. He further stated that he did not know about her mental illness and that he had a file of her treatment. He further stated that he did not know how it happened.
6. As we have already noted, learned Sessions Judge at the end of the trial, in view of the evidence which had come on record framed, an additional and alternate charge under section 302 of the IPC. After perusing the evidence on record, learned Sessions Judge convicted the accused as aforesaid and, hence, this appeal.
7. We have heard, at some length, Mr. Apte, learned counsel appearing for the appellant-accused. He submitted that it is an admitted fact that the deceased was suffering from mental illness and, therefore, the case of the defence that the deceased had committed suicide is probabalized. He submitted that nobody has seen the actual incident of hanging. Even according to PW-9 Pooja, she saw her mother in a hanging position. Evidence of PW- 9 Pooja is so inconsistent that no reliance can be placed on it. At one stage, she has said that her father hanged the deceased but, in the cross-examination, she has clearly stated that her mother AJN
6
was in a hanging position when she saw her. Mr. Apte, submitted that it is, therefore, unsafe to rely on the evidence of this witness. He submitted that there is hardly any evidence to uphold the conviction under section 302 of the IPC. Even so far as the charge under section 306 of the IPC is concerned, learned counsel submitted that the evidence on record falls short of requirement. He submitted that reliance placed by learned Sessions Judge on the judgments of the Supreme Court in Kuldeep Singh v. State of Rajasthan, 2000 SCC (Cri.) 865 and in Joseph Kooveli Poulo v. State of Kerala, (2000) 5 SCC 197 and on the judgment of this court in Balasaheb s/o. Kashinath Pawar v. State of Maharashtra, 2004 ALL MR (Cri.) 2087, is totally misplaced. They can be distinguished on facts. He submitted that in fact, the accused had explained the incident of hanging by saying that the deceased had committed suicide. That story is probabalised by the fact that admittedly the deceased was mentally ill. Learned counsel submitted that therefore this is not a case where the accused had offered no explanation at all. Mr. Apte submitted that the impugned judgment and order is perverse and, therefore, it may be set aside and the accused be released forthwith. AJN
7
8. The evidence of PW-7 Dr. Rajesh Dhepe who was working as Assistant Medical Officer at Rajawadi Hospital and evidence of PW-8 Dr. Shivaji Kachare, who was, at the relevant time, attached to Rajawadi Postmortem Center as Medical Officer clearly establishes that the cause of death of the deceased was asphyxia due to constriction neck (unnatural) hanging. Postmortem notes are at Ex-22. On the external examination of the dead body, PW-8 Dr. Kachare noticed the following injuries. “1) Ligature marks was seen around neck region right mastoid to left mastoid above thyroid cartilage reddish brown in colour and incomplete.
The size of the ligature mark was 26 cm x 1.2 cm. The neck circumference was 41 cm. On dissection of neck region found thin parchmentization of a skin under groove.
2) Abrasion was seen over left forehead reddish in colour size 3 cm x 2 cm. Injuries were ante- mortem.”
On the internal examination of the dead body, PW-8 Dr. Kachare noticed the following injuries.
AJN
8
“1) larynx, trachea and bronchi were congested both lungs were congested and oedematus.
Heart show on dissection right chamber full of blood and left chambers were empty.”
9. PW-8 Dr. Kachhare has stated that except for an injury on the left side forehead, there was no other injury on the dead body. He stated that the ligature marks denote that the death was caused by hanging and not by strangulation.
10. It is pertinent to note that after scrutinizing the evidence, learned Sessions Judge has come to a conclusion that from the evidence on record, it is clear that all the witnesses have seen the deceased in a hanging position and that the prosecution has proved beyond reasonable doubt that the cause of death was due to hanging. She has, however, expressed some doubt as to whether the deceased had hanged herself and/or whether she was hanged by the accused. In view of the judgments of the Supreme Court and of this court to which we shall soon advert, learned Judge has stated that since the accused had not given any AJN
9
explanation about the circumstances which are exclusively within his knowledge, he had not discharged his burden under section 106 of the Indian Evidence Act. She has observed that only the accused was present at the time and place of the offence and he ran away from the scene immediately thereafter. She has observed that the prosecution has proved that the accused was having an affair with Mangal; that he was neglecting his wife and his children and that her insanity could have been a motive to commit suicide. Learned Judge has observed that the accused had failed to discharge his burden and, therefore, it is an additional link which completes the chain of circumstances. We shall now examine whether the above findings have been correctly recorded by learned Sessions Judge.
11. PW-1 Ratna Whatkar is the cousin of the deceased. She turned hostile and, therefore, she was cross-examined by the prosecution. In her cross-examination, PW-1 Ratna has stated that the deceased was not mentally sound and she was taking treatment at the Sion Hospital.
12. PW-2 Manik Ingale and PW-3 Ramesh Ingale who are the AJN
10
brothers of the deceased and PW-4 Phulabai Ingale, who is the mother of the deceased have stated about the illicit relationship of the accused with Mangal. It is not necessary for us to refer to that evidence because the accused has admitted the illicit relationship in his statement recorded under section 313 of the Code. PW-2 Manik has stated that due to the said illicit relationship, the deceased and the accused used to quarrel. The accused was not looking after the deceased and the children. He has further stated that the accused had given his photograph with Mangal to the deceased. Due to this, the deceased’s mental condition was disturbed and she had to take treatment. According to him, on 22/1/2003, when he reached the house of the deceased, the deceased was put on a sheet and was being brought out of the room. The police had arrived and were drawing panchanama. He reached the hospital where the deceased was taken, at 11.30 p.m. and informed the police that the accused had caused the death of his sister. His complaint was then recorded. The said complaint is at Ex-10. He has stated in the cross-examination that his sister was not a mad person but she was taking treatment in the Sion Hospital due to the mental shock received by her because of the behaviour of the accused.
AJN
11
13. PW-3 Ramesh Ingale, the other brother of the deceased has stated that the accused was not behaving properly with the deceased. He started drinking and assaulting the deceased. On one occasion, he had tried to pour kerosene on the deceased. He was arrested by the police and released on his assuring the police that he would not repeat such act. He has further stated that the accused was not looking after the children and he used to hit them for trivial reasons. According to him, the accused used to tell the deceased that he would reside with Mangal. This caused great torture to her. According to him, on the day of the incident, he went to the house of the deceased with her youngest son. He knocked at the door, but the door was not opened. At 11.30 p.m., the youngest son of the deceased started crying and, therefore, his mother took him to the house of the deceased. At that time, his mother shouted loudly and, therefore, they went to see what had happened. They saw the deceased in a hanging position. She was hanging from the beam with a sari tied to her neck. He, his mother, father and the children of the deceased were present at that time. In the cross-examination, he denied the suggestion that the deceased attempted to commit suicide and she was admitted in AJN
12
a hospital. He denied that the deceased was suffering from any mental illness but he admitted that the deceased was brought to the area where they were staying as her parents wanted to take care of her. In our opinion, implicit in this is that the deceased was unable to take care of herself. All was not well with her mental condition.
14. PW-4 Phulabai Ingale, the mother of the deceased has stated that the accused was addicted to liquor. He used to give some money at home and blow up the rest. He had once poured kerosene on the deceased and they had lodged a complaint with the police at that time. According to PW-4 Phulabai when the accused and the deceased came to reside in their locality, the accused continued to quarrel with the deceased every day. She has further stated that Mangal and the accused had declared to the deceased that they wanted to live together and over this, the deceased and the accused had a serious quarrel. PW-4 Phulabai has stated that on the day of the incident at about 11.00 p.m., the youngest child of the deceased started crying. So she told her son to take him to the deceased. According to her, she and her AJN
13
granddaughter went to the deceased’s house. She inquired about the deceased. PW-9 Pooja, the daughter of the deceased told her that the accused was watching while the deceased was hanging herself. According to PW-4 Phulabai, she screamed. Her son and husband came there. Thereafter, the police arrived. According to PW-4 Phulabai, she noticed that the feet of the deceased were on a stool. She noticed marks of throttling on the neck of the deceased. According to her, the deceased was almost standing on the stool. She has further stated that the deceased did not commit suicide and she was throttled and hanged. In the cross- examination, she has stated that the deceased started getting attacks of mental disorder for the last two years due to the illicit relationship of the accused with Mangal. Thus, she admitted that the deceased had some mental disorder. It must be noted here that PW-4 Phulabai’s story that there were marks of throttling on the neck of the deceased is not borne out by the medical evidence to which we shall soon turn.
15. PW-6 Shamrao Ingale, the father of the deceased has stated that the accused was behaving badly with the deceased. He used to drink and gamble. He was not looking after the children. In the AJN
14
cross-examination, a vital omission has been brought on record. Though, he has denied that the deceased had mental disorder, it appears that he had stated before the police that the deceased had a mental disorder and she was behaving like a mad person and that is why she had been treated in the Sion Hospital.
16. Evidence of all these persons establishes that the accused was addicted to drinks; that he was having an affair with Mangal and that he was ill-treating the deceased. Their evidence also establishes that the deceased was mentally disturbed and she was treated for the same at the Sion Hospital. It appears that the mental disturbance was due to the fact that the accused was having an affair with Mangal.
17. PW-9 Pooja, the daughter of the deceased has stated that the house of her grandparents and maternal uncle is near the house where she was staying with her parents. In the examination-in-chief, she has stated that the accused put a sari around the neck of the deceased and hanged it on a beam in the room and she saw this while she went to urinate. However, in the cross-examination, she has stated that it is correct to say that her AJN
15
mother was already hanging when she saw her. Therefore, the claim of PW-9 Pooja that she saw her father hanging her mother is not true. This has been accepted by the trial court also. PW-9 Pooja has further stated that the deceased used to take sleeping pills because she used to have frequent headaches and was suffering from giddiness. According to PW-9 Pooja, the deceased would scream and throw things around. The neighbours would tell her grandmother to take her to the hospital. According to PW-9 Pooja, the deceased would not know what she was doing and her grandmother would take the deceased to the hospital when she had the problem. The evidence of PW-9 Pooja confirms that the deceased had mental disorder.
18. In our opinion, this evidence is sufficient to hold that the accused used to ill-treat the deceased. He meted out mental and physical cruelty to the deceased. His conviction under section 498A is, therefore, perfectly legal and justified.
19. It is pertinent to note that in the FIR lodged by PW-2 Manik, his case was that the deceased had committed suicide because of the illicit relationship of the accused with Mangal, which caused AJN
16
mental cruelty to her. Thus, in short, the case of PW-2 Manik was that the accused abetted the suicide of the deceased. The prosecution case was, therefore, that the accused had committed offence under sections 498A and 306 of the IPC. In our opinion, the evidence discussed by us hereinabove clearly establishes commission of offence under section 306 of the IPC. Mental illness of the deceased was due to the illicit relationship of the accused with the deceased and that led her to commit suicide. We shall now examine how far the reliance placed by learned Sessions Judge on the above mentioned judgments to come to a conclusion that the accused is guilty of offence under section 302 of the IPC is proper.
20. In Kuldeep Singh’
s case (supra), deceased Sohan Singh and
his brother Mohan Singh were staying with their families in different portions of the house. After the death of Mohan Singh, his widow was living there with her three daughters. Sohan Singh was found dead in his house at night. The trial court found that the prosecution had proved inter alia, that the 1st appellant accused had illicit relationship with widow of Mohan Singh. Deceased AJN
17
Sohan Singh was objecting to it. The trial court held that all the four appellants had entered into a criminal conspiracy to murder deceased Sohan Singh and they had committed the murder. The conviction was confirmed by the High Court. The Supreme Court confirmed the findings of the courts below. The case of the prosecution inter alia was that appellant 4 had got all family members to attend Ramleela festival thereby leaving the deceased alone in the house. The Supreme Court observed that in her statement under section 313 of the Code, appellant 4 i.e. the widow of the deceased’s brother had denied that she had left for the Ramleela festival. However, the evidence of the witnesses clearly established that she had left for the Ramleela festival and the false answer given by her provided the additional link or the missing link in completing the chain of circumstances. The Supreme Court referred to its judgment in Swapan Patra v. State of West Bengal, (1999) 9 SCC 242, and held that it is a well-settled principle that in the case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain.
AJN
18
21. In Joseph’
s case (supra), the accused had totally denied all the incriminating circumstances when the same were brought to his notice in his statement under section 313 of the Code. The accused representing himself to be the husband of one of the sisters of the deceased went to St. Mary’s Convent on a false pretext that her mother was ill and took her away with the permission of the Sister in-charge of the Convent. He took her to a desolate place, raped her and robbed her of her ornaments. The Supreme Court observed that when several incriminating circumstances were put to him in his examination under section 313 of the Code, they could have been only explained by the accused and by nobody else, they being personally and exclusively within his knowledge. The Supreme Court observed that the missing link to connect the accused with the crime, was provided by the blunt and outright denial of every one and all of the incriminating circumstances pointed out which, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of the deceased. AJN
19
22. In Balasaheb’
s case (supra), the deceased was found dead on the floor of the house of the accused. There were several external and internal injuries found on the deceased. The accused pleaded not guilty. He had not pleaded alibi. This court held that once it is accepted that the accused was in the company of the deceased on the night of the incident, the burden of explaining his special knowledge regarding the incident squarely fell on him, in view of the scheme of section 106 of the Evidence Act. He had not discharged the burden. In view of this, the conviction of the accused under section 302 of the IPC was upheld.
23. It is true that the burden of explaining facts regarding the incident in question which were especially within the knowledge of the accused fell on him in view of section 106 of the Evidence Act. However, in this case, the prosecution evidence itself shows that the deceased was mentally ill. Her mental illness and treatment at Sion Hospital is confirmed by the prosecution witnesses. PW-9 Pooja has given vivid description of the behaviour of the deceased when she used to get attacks. The medical evidence states that the death was asphyxia due to hanging and not by strangulation. AJN
20
PW-8 Dr. Kachare has stated that hyoid bone and thyroid cartilage were intact. In Kuldeep Singh’ case (supra), the accused had s
given a false explanation. In this case, the accused has admitted certain facts. He has admitted his illicit relationship with Mangal. He has admitted that he used to assault his children. He has stated that he has a file of her treatment and that she had earlier on two occasions done the same thing. This is not a case of no explanation at all. In our opinion, the accused has probabalised his defence. The accused does not have to prove his defence beyond reasonable doubt. We are unable to come to a conclusion that he has not disclosed any facts which were within his special knowledge or that he has given false explanation which can form the missing link in the chain of circumstances. In the circumstances, in our opinion, judgments on which reliance is placed by learned Session Judge has no application to the present case.
24. We also feel that the prosecution story is inherently improbable. If the accused had throttled the deceased, she would have raised a loud cry which would have brought all neighbours to AJN
21
the house of the accused. Ordinarily, it is difficult for anyone to forcibly put the noose on a person and hang him unless that person has been drugged or is unconscious. There is no such evidence on record. If the accused had tried to forcibly hang the deceased, she would have certainly resisted the attempt. Barring an abrasion admeasuring 3 cm x 1.2 cm on the left forehead, there were no other injuries on the deceased. It is difficult to believe that the deceased would not resist the attempt. Her cries would have brought her relatives staying close by and others to the house of the accused. Admittedly, all the witnesses have seen the deceased in a hanging position. All these circumstances, militate against any inference that the accused murdered the deceased. Learned Sessions Judge has observed that the accused ran away from the site and this conduct is unnatural. Learned Sessions Judge has failed to note the deposition of PW-3 Ramesh Ingale that when he saw his sister hanging, the accused was present. Learned Sessions Judge has also failed to note the evidence of PW-10 API Abhay Salgaonkar that the complaint was lodged on 22/1/2003 and the accused was arrested immediately thereafter. Therefore, the conclusion drawn by learned Sessions Judge that the accused ran away and was guilty of unnatural conduct dos not AJN
22
stand to reason. We are therefore of the opinion that conviction and sentence of the accused under section 302 of the IPC needs to be set aside and he must be convicted under section 306 of the IPC. The conviction and sentence of the accused under section 498-A of the IPC needs to be confirmed. Hence, the following order.
25. Conviction and sentence of accused Ravindra Subhana Dadake under section 498-A of the IPC is maintained. Conviction and sentence of accused Ravindra Subhana Dadake under section 302 of the IPC is set aside. Instead accused Ravindra Subhana Dadake is convicted of offence under section 306 of the IPC and sentenced to suffer RI for 10 years. He is also sentenced to pay fine of Rs.2,000/- in default, to suffer RI for 6 months. Substantive sentence shall run concurrently.
26. Appeal is disposed of.
[SMT. RANJANA DESAI, J.]
[DR. D.Y. CHANDRACHUD, J.]
