Bombay High Court Dnyaneshwar Sakharam Bhoir, -vs- The State Of Maharashtra on 12 February, 2007
Equivalent citations:2007 (109) Bom L R 549, I (2007) DMC 673
Author: B Marlapalle
Bench: B Marlapalle, R Mohite
B.H. Marlapalle, J.
1. This appeal arises from the order of conviction and sentence passed by the learned 3rd Additional Sessions Judge, Thane in Sessions Case No. 429 of 1997. All the four accused were put on trial and the Accused No. 1 has been convicted and sentenced for the offence punishable under Sections 302 and 498A of the Indian Penal Code, whereas, the accused Nos. 2 to 4 have been convicted for the offence punishable under Section 498A of the Indian Penal Code. This appeal has been filed by all the four accused who have been convicted and sentenced.
2. Vaishnavi- the daughter of P.W. No. 1 Dwarkanath Shankar Patil (Complainant) and a resident of Ghansoli, New Bombay was married to accused No. 1 on 5.6.1995. The Accused No. 2 is the mother and accused Nos. 3 and 4 are brother and sister respectively of the accused No. 1. The accused came from the poor family background and the accused No. 1 had hardly studied. At the time of his marriage he was unemployed, whereas, Vaishnavi had studied upto 10th standard and completed beautician course of two years duration and came from a well-off family. Even after his marriage to Vaishnavi, the accused No. 1 remained unemployed. On 24.11.1995, the accused No. 1 gave a telephonic message in the morning to Hansabai Dwarkanath Patil (P.W.2) and mother of the deceased saying that Vaishnavi had bolted the house from incide and she was not opening the door inspite of several calls given to her. P.W. No. 2 therefore, sent her nephew Anil (P.W. No. 3) from Ghansoli to Village Karave, where the accused were staying and when P.W. No. 3 Anil reached the house of the accused No. 1, he noticed that the accused No. 1 and his mother accused No. 2 were present outside and the door was bolted from inside. The accused No. 1, P.W. No. 3-Anil and one Prakash Bhoir broke open the door and entered in the inner room of accused No. 1 and found Vaishnavi hanging to the ceiling fan by means of a saree. The saree was cut and Vaishnavi was taken to nearby hospital, where she was declared dead. The dead body was brought back from Suyash Hospital at Nerul to the house of Raghunath Bhoir at Karave Village at about 3.15 p.m. P.W. No. 3-Anil lodged A.D. report (Exh.34) with the Police Station at Nerul, in which, it was stated that Vaishnavi had committed suicide. The dead body was sent for post mortem and P.W. No. 4 Dr. Nishikant Bhaskar Kulkarni along with Dr. Mrs. Baheti from Thane Civil Hospital conducted autopsy between 7.30 to 8.15p.m. on 24.11.1995. The probable cause of death was recorded as “Asphyxia due to hanging”. P.W. No. 1 Dwarkanath Patil approached the Nerul Police Station on 25.11.1995 and filed first complaint (Exh.24) which came to be registered as F.I.R. for the offences punishable under Section 302 and 498A read with Section 34 of the Indian Penal Code. The investigation was handed over to Arun Lahankar. P.W. No. 6 Pundalik Raut had arrested the accused No. 1, on the same day. From the scene of offence i.e. from the house of accused No. 1. Sandow banian, broken glass pieces, bed sheet, saree, blouse and brassier and petticoat were seized, sealed and sent for chemical analysis. P.W. No. 7 Dilip Desai-Assistant Chemical Analyser was examined in support of the Chemical Analysers report at Exh.58. All these articles except the broken glass pieces were found to be stained with human blood of Group “B” though the blood group of the deceased as well as the accused No. 1 was not detected. On completion of the investigation, charge sheet came to be filed.
3. The prosecution examined in all seven witnesses and the accused No. 1 in support of his plea of alibi examined one witness i.e. Ramesh Goma Bhoir (D.W. No. 1). While accepting the post mortem report at Exh.42 read with oral deposition of P.W. No. 4-Medical Officer, the Trial Court has held that Vaishnavi died due to homicidal death and the accused No. 1 had assaulted her, killed her and thereafter had made a show that Vaishnavi had hanged herself. As per the Trial Court, the accused No. 1 committed the crime and thereafter, escaped from his house through the rear window and put up a false story to Page 0553 inform P.W. No. 2, adjoining neighbour as well as his parents that Vaishnavi was not opening the door from inside. By referring to the depositions of P.W. No. 1, P.W. No. 2 and P.W. No. 3 the Trial Court recorded a finding that Vaishnavi was subjected to harassment and cruelty during short span of five months of marriage by accused No. 1 as well as other accused. The accused No. 1 was demanding money from the father of Vaishnavi so as to get his sister accused No. 4 married. On these grounds, the Trial Court has held all the accused guilty for an offence punishable under Section 498A of the Indian Penal Code. The Trial Court has also accepted the prosecution version that accused No. 1 was harassing Vaishnavi to meet his demand for money to be given by P.W. No. 1.
4. Mr. Arjunwadkar, the learned Counsel for the appellants while referring to the post mortem report at Exh.42 pointed out that there was nothing on record to show that Vaishnavi died due to homicidal death. The accused No. 1 had taken the plea of alibi and he proved the same through the evidence of D.W. No. 1 Ramesh Bhoir a neighbour. As per Mr. Arjunwadkar, the deceased was not apparently happy as her husband- accused No. 1 was unemployed, hardly literate and therefore, she committed suicide. So far as the offence punishable under Section 498A of the Indian Penal Code is concerned, it is pointed out by Mr. Arjunwadkar that the evidence of all the three witnesses i.e. P.W. No. 1 to P.W. No. 3 is inconsistent, the P.W. No. 1 did not make out a specific case proximate to the date of incident regarding the demand of dowry or the husband was causing harassment or beating the deceased. A vague allegation that the accused were demanding money for the marriage of accused No. 4 will not be sufficient to bring home the charge punishable under Section 498A of the Indian Penal Code against any of the accused and therefore, all of them deserve to be acquitted from all the charges by setting aside the order of conviction and sentence, urged Mr. Argunwadkar.
5. There is no dispute that after their marriage, on 5.6.1995, the accused No. 1 and the deceased started cohabiting as members of the joint family of the accused and after about two months the complainant (P.W. No. 1) had hired a separate residential accommodation for the couple and for which the complainant was paying a rent of Rs. 400/ p.m. The said hired accommodation was at a distance of 100 to 150-mtrs. away from the family house of the accused No. 1 at Village Karave. The complainant had also set up a beauty parlour for his daughter Vaishnavi at Ghansoli, so that, she could be busy and support the family, more so, when the accused No. 1 was unemployed. Vaishnavi used to leave her house around 8.00a.m. to attend to her beauty parlour at Ghansoli through out the day and used to return to the matrimonial home after 8.00p.m. The distance between Ghansoli and Village Karave is claimed to be about 20 to 25 K.M. When P.W. No. 3 Anil entered the house of accused No. 1 by breaking open the door, admittedly, Vaishnavi was seen in hanging position and they released her from the same and took to Suyash Hospital in Nerul where she was declared dead. The dead body was brought to the house of Raghunath Bhoir in Village Karave. The Inquest panchanama was not drawn even after the A.D. report was lodged by P.W. No. 3 Anil, though, the Inquest panchanama at Exh.17 refers to number of articles lying at the place of offence. On the face of these oral and documentary Page 0554 evidence, we are required to examine at the threashhold whether Vaishnavi met a homicidal death or a suicidal death.
6. P.W. No. 4 Dr. Kulkarni in his deposition before the Trial Court stated that the following injuries were noticed by him on the person of Vaishnavi.
1. Ligature mark single. Seen situated over part of the neck at the level of upper border of thyroid cartilage circling neck obliquely, upwards upto the level of mastoid processes of both the sides. No ligature mark over nape of the neck. Ligature mark of 3/4 inch in breadth, brownish bluish in colour parchment like with underlined subcutaneous haemorrhage. No evidence of fracture of laryngeal cartilages, intact. No laceration of neck vessels, Major (carotid) and muscles.
2. Irregular abrasion on hands, paler aspects over the neck heyprothener eminences 4/2 c.m. right, 4/2 c.m. left. The injuries were antemortem. Both the lungs were congested with isolation of blood stain fluid on out section.
Uterus 7″x4″ gravid, length of foetus 6″ from head to toe, weight of