Bombay High Court Bhujangrao Anandrao Deshmukh And -vs- The State Of Maharashtra on 12 January, 1993
Equivalent citations:I (1993) DMC 193
Author: A A Desai
Bench: A Desai, B Wahane
JUDGMENT
A A. Desai, J.
1. The appeal by the State is directed against the finding of acquittal for the offence punishable Under Sections 302, 201 and 304B read with Section 34 of the Indian Penal Code whereas Appeal No. 233 of 1989 ii preferred by original accused for their conviction for the offence punishable Under Section 498A read with Section 34 of the Indian Penal Code and Under Sections 3 and 4 Dowry Prohibition Act, 1961. Since both the appeals arising out of the common set of facts and judgment have been heard together and being disposed of by this judgment.
2. On 2 5-1986 Lata (since deceased) married with original accused No. 2 Trimbak, Accused No. 1 Bhujangrao and original accused No. 3 Kailash lire respectively his father and uncle. On 25-6-1987 at night Lata .in her matrimonial home found dead owing to burn injuries. Accordingly, accused No. 3 Kailash lodged a report vide Exh. 80. A case of accidental death was registered. The body was then sent for post mortem. Dr. Garja (PW 12) who conducted the autopsy, submitted report vide Exh. 75 wherein ‘he has stated that amongst other deceased Lata suffered an incised wound 6 inch deep on chest and other contused wound on her person. PW 1 Vilas Pawar vide Exh. 20 lodged a report of homicidal death. The offence was accordingly registered. PW 2 Shankarrao, PW 3 Subhadrabai, PW 9 Sitaram and PW 10 Ramdas are the persons who speak about the demand of dowry and ill-treatment to deceased Lata. PW 5 Subhash is a witness on panchanama of various seizures and particularly Exh. 31 is a panchanama of a demonstration made by accused No. 2 Trimbak as regards the opening and closing of the door from outside of a room where Lata was found dead. Exh. 24 is the inquest. Exh. 30 is a discovery memorandum and seizure penchanama is Exh. 30-A of article knife which is claimed to have been made by the accused at the time of crime.
3. The Additional Sessions Judge, Akola, recorded a finding of homicidal death discussing, the material in paras 7 and 8 of the impugned judgment. However, he further proceeded in para 12 towards and reached a conclusion that since there is no evidence on the record indicating any overact on the pan of any of the accused, they cannot be held guilty Under Section 302 read with Section 34 of the Indian Penal Code. The learned Judge further held that no doubt there is an evidence indicating motive of the accused persona against Lata. But in absence of any incriminating. circumstance they cannot be held guilty. The learned Judge, therefore, by the impugned judgment recorded a finding of acquittal in favour of all the accused persons for the offence punishable Under Sections 302, 201 and 304B read with Section 34 of the Indian Penal Code. However, that learned Judge convicted the accused Under Section 498A and Sections 3 and 4 of the Dowry Prohibition Act. Hence these two appeals.
4. Mr. Sirpurkar, the learned Counsel appearing for the defence, vehemently urged that in absence of any direct evidence-oral or otherwise-there could not be a conviction for the offence punishable Under Section 302 of the Indian Penal Code. She has further urged a broad proposition that in appeal against the Court need not interface with the finding unless the same is grossly erroneous or suffers from perversity or patent illegality. She further made a submission that the acquittal as recorded is having regard to the material version on record. The view as taken is possible and as such this Court need not interfere with the same. While scrutinising the material on the record, we bear in mind as proposed by Mrs. Sirpurkar.
5. No doubt, it is true that there is no substantive evidence involving the accused persons in the incident leading to homicidal death of Lata. However, the incident of crime occurred within four walls of the house of the accused persons. The circumstances which we have noticed are as under 8-
(a) Motive as revealed from the testimony of PW 1 Vilas Pawar, PW 2 Shankarrao, PW 3 Subhadrabai, PW 9 Sitaram and PW 10 Ramdas.
(b) Homicidal death occurred while Lata was under custody of accused Nos. 1 and 2.
(c) The report lodged by accused No. 3-Kailash vide Exh. 80 is proved to be false.
And
(d) There is no plausible explanation from the inmates parties cularly, accused Nos. 1 and 2 about the occurrence of the incident feeding to the homicidal death.
6. Mrs. Sirpurkar urged at this stage that these circumstances if taken into account are not clinching. They would not lead to a definite conclusion that these accused persons clone are responsible for (he death of Lata. The submission as advanced is not well founded. In the alternate plea she says that motive is not strong which is disclosed by the prosecution witnesses and even otherwise establishing a motive, by itself would not be a circumstance alone end solitary to record the finding of conviction. We arc initially dealing with the circumstances other than motive.
7. Undisputedly, as per the post mortem report and evidence of Dr. Garje (PW 12) deceased Lata suffered incised wound on chest and other contused injuries. The incident occurred in a room which is a place for sleeping of husband and wife. Mrs. Sirpurkar tried to persuade us that the injury could be self-inflicted. However, we find ourselves extremely difficult to accept the same. A suggestion in this regard was also given to Dr. Garje which he has stoutly denied. It is on the record from medical evidence that the injury is ante-mortem and also sufficient to cause death. The injury could also be pre-burning. We arc not inclined to accept that such injury could be caused to deceased Lata after she was set on fire and suffered 60 per cent burn injuries. We, therefore, reached a conclusion that in the same room, she suffered these injuries before she was set on fire.
8. After aha Buffered 60 to 70 per cent burn-injuries, Exh. 80 came to be lodged by accused No. S-Kailash. This aspect is very pertinent and, therefore, we propose to reproduce (he report, Exh. 80 which read as thus :-
“This day 25-6-1987 in the night, I was sleeping in my home. At that time at about 11 O’clock Prahlad Kisanrao Deshmukh came to me and told me that Sau. Lata was burnt. Hence I went there and observed that Sail Lata was died in the room due to burning and smell of kerosene was emitting and a bottle of kerosene was lying nearby. On enquiry, it was learnt that Sau. Lata chained the door of the room from inside and burnt herself. Incidentally, my sister Mathurabai came outside to answer natures call. She found fire in the room. Therefore, she called and awoke Bhujangrao Anandrao. When Bhujangrao pushed the door, he found it to be closed from inside. Bhujangrao called Babanrao Vithalrao and they both entered in the room by removing the tin and opened the door. When they saw Sau. Lata, they found her in dead condition. They told me as above. Hence I lodge my complaint. Enquiry be kindly held.”
Undisputedly, this report came to be lodged at the behest and under instruction of original accused No. 1 Bhujangrao. In this report, they tried to paint a picture of suicidal death by Lata. This report as came to be lodged at the behest of accused No. I Bhujangrao is palpably false as proved from medical evidence. This report is calculately made to mislead the prosecution and investigating agency.
It is found from the testimony of PW 9 Sitaram through Exh. 31 a panchanama of demonstration that the chain of the room could be operated from outside and it was convenient to any person and particularly the inmates in a situation of emergency to open the door even from outside. Even then the venture of accused No I Bhujangrao of informing that on seeing the flames be rushed and reached the top and remove the tin sheet is farcical and was with an intention to give further colour to a story of suicidal death. We, therefore, hold that the accused had positively lodged a false report and lodging false report is one of the incriminating circumstances in this case. From record, this report was lodged after two hours. Accused person deliberated and then thoughtfully lodged the report. Accused No. 1 Bhujangrao in his examination Under Section 313 of the Criminal Procedure Code vide Question No. 52, has admitted by saying that accused No. 3 Kailash had filed a report in Police Station. Undisputedly, the accused No. 1 Bhujangrao bus accepted this circumstances.
9. Undisputedly further homicidal death occurred in the house. Even according to the accused, the room was chained from inside. He himself bad to reach inside the room by opening the tins of the roof. It, therefore, suggests that the third person or any outside had no access to the place where the dead body was found as per spot panchanama. This establishes the fact that homicidal death took place while Lata was exclusively in their custody. From these circumstances, it becomes, obligatory for the accused person to offer any plausible explanation which may suggest about their innocence.
Accused No. 1 Bhujangrao has offered the explanation in cross-examination, or in. report vide Exh. 80 that he got the knowledge of burning from somebody. He had no knowledge of burning and after receiving the knowledge he removed the tins from the roof. The explanation as offered in view of our earlier discussion not only improbable but the lame is palpably false. Giving false explanation is the incriminating circumstance involving the accused in the crime.
10. Accused No. 2 Trimbak who was the husband of deceased Lata claimed alibi by laying (hat at the relevant time be was not there. He has not offered any explanation as to where he was. The explanation is lame and unsatisfactory.
Taking into consideration the incident as occurred undisputedly none of the accused have heard any cries or shouts of the deceased though it was quite natural. It, therefore, appears that piercing injury was caused by gagging her mouth. This could not be the act of individual. It necessary requires more than one person. Besides this, the position as described of a dead body in an inquest panchanama marked as Exh. 24 is that the deceased was lying on a floor keeping both her hands under her head as if she was taking sleep. It also suggests that while in flames she was motion-less. This further indicates that Lata was done to death before she was set on fire. These aspect! definitely indicate that both the accused Nos. 1 and 2 are involved in that crime.
11. From the testimony of PW 1 Vilas who is a brother of deceased Lata, it is clear that there was a demand of dowry before the settlement of marriage. It is further clear that part of the payment was made and the balance could not be paid in time. Vide Exh. 19 a post-card whereunder he made a request to the accused No I for gram of some time for payment. Besides this on record that is no evidence of PW 2 Shankar, PW 3 Subhadra, PW 9 Sitaram and PW 10 Ramdas. They speak about the ill-treatment. Moreover, Exh. 19 was seized and attached during the course of the search of the house of the accused person. This material clearly established the motive of the accused person to torture deceased Lata for extracting the amount of dowry. If, therefore, follow! that both the accused Nos.1 and 2 were deeply interested and surcharged with a motive to commit a crime by bringing an end to the life of Lata.
Homicidal death of Lata is fully established. The circumstance involving accused Nos. I and 2 are lodging a false report with a definite intention, homicidal death while in the custody and not offering any explanation therefore and the motive which we have lastly discussed. In view of the circumstances and the incident as occurred, accused person, namely, Nos. I and 2 have shared the common intention and executed their mission resulting in homicidal death of Lata. We, therefore, hold them guilty for the offence punishable Under Section 302 read with Section 34 of the Indian Penal Code.
12. The learned Judge has not adverted to these aspects and merely recorded the finding of acquittal observing that there is no direct evidence indicating any overtact the part of the accused persons. The finding of acquittal as recorded cannot be sustained.
13. Undisputedly, as discussed earlier and from the evidence of Dr. Garje PW 12 and post mortem report Exh. 75 it is clear that deceased Lata sustained incised wound on chest and as per our discussions the said injury was pre-burning. The accused persons with an intention which we have discussed calculatedly poured a kerosene oil on her person to give a colour of suicidal death. In doing 10, accused Nos. 1 and 2 were deeply arrested. They did this to escape from Justice. As such, they are also guilty for the offence punishable Under Section 201 of the Indian Penal Code.
14. We have heard Mr. Kukdey, the -learned Counsel. Ha strenuously urged that accused No. 3 Kailash has also played a vital role in lodging the false report. He, therefore, submitted that accused No. 3 also shared the common intention with accused Nos. 1 and 2 and as such, he is equally guilty for the offence punishable Under Sections 302 and 201 of the Indian Penal Code. We have gave some anxious consideration on the argument. However, it appears from Exh. 80 that he is residing in the name village at Shirpur. He is also near relation of original accused Nos. 1 and 2. The prosecution could lead the evidence only to the extent that ha has lodged the report of suicidal death due to burning but that was at the instance and behalf of original accused No. 1 Bhujangrao. No doubt, he ii a relation but he could not have the same or similar motive like accused Nos. I and 2. It cannot be further said that he has shared the same and common intention with accused No. 1 to lodge a false report. The say or version of accused No. 1 Bhujangrao he has endorsed while lodging the report. However, it cannot be said with entire certainty that be could extract a knowledge or evil design of accused No. 1 when ha directed him to lodge a report. He, therefore, rind ourselves difficult to hold accused No. 3 guilty with the aid of Section 34 of the Indian Penal Code. We maintain the finding of acquittal recorded in his favour. We, therefore, do not want to interfere with.
15. With the assistance of the learned Counsel for both the parties, we nave perused the testimony of the witnesses referred to above. The evidence is voluminous und the learned Judge has rightly recorded the finding of conviction for the offence punishable Under Section 498A of (he I.P.C. against the original accused Nos. I and 2 read with Section 34 as well Under Sections 3 and 4 of Dowry Prohibition Act. We have gone through the finding as recorded in the impugned judgment. We do not find that the finding Buffered from any material illegality and we, therefore, maintain the case.
16. We have heard Mrs. Sirpurkar and Mr. Kukde, the learned Assistant Public Prosecutor on the question of sentence. Mr. Kukde, the learned Counsel emphasised taking into account the modus operand! of the crime and the manner in which unscrupulously they executed their mission that the accused persons are liable to suffer an ultimate penalty of death. Mr. Kukde submitted that this is a case which warrants in a present social condition the deterrent punishment. This ‘is countered by Mrs. Silpurkar- with a submission that the incident wherein the accused persons were involved does not satisfy the lest of rarest amongst rare and as such in her submission leniency should be shown. We have considered the arguments and pass the following order :-
17. Criminal Appeal No. 233 of 1989 is hereby allowed. Finding of acquittal as recorded by the Additional Sessions Judge vide judgment dated 3S-1-1989 is hereby set aside. We convict accused No. 1 Bhujangrao and accused No. 2 Trimbakrao for the offence punishable Under Section 302 read with Section 34, I.P.C. and we direct them to suffer rigorous imprisonment for life and to pay fine of Rs. 5000/- each. In case of default, they shall further suffer rigorous imprisonment for a period of one year. We maintain the finding of acquittal in favour of accused No. 3 Kailash recorded by the trial Court.
We also convict original accused Nos. 1 and 2 for the offence punishable Under Section 201 read with Section 34 of the I.P.C. We direct them to suffer rigorous imprisonment for a period of three years and to pay fine of Rs. 5000/- each. In case of default, ‘they shall suffer rigorous imprisonment for a period of one year.
18. Criminal Appeal No. 50 of 1989 presented by original accused Nos. 1 and 2 against their conviction for the offence punishable Under Section 498A read with Section 34 of the Indian Penal Code and Under Sections 3 and 4 of Dowry Prohibition Act is hereby dismissed. The bail bonds of original accused Nos. 1 and 2 are hereby cancelled. They shall surrender to their bail bonds within one month. We direct substantive sentences to run concurrently.
