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Jayprakash Sakharam Zanwar And … vs State Of Maharashtra on 4 June, 2003

Bombay High Court Jayprakash Sakharam Zanwar And … vs State Of Maharashtra on 4 June, 2003Author: A Bagga Bench: B Vagyani, A Bagga

JUDGMENT

A.S. Bagga, J.

1. This appeal is directed against the judgment and order dated 23-4-1998, passed by learned 2nd Additional Sessions Judge, Jalna in Sessions Case No. 118 of 1993, thereby convicting the appellants (original accused Nos. 1 and 4) of the offence punishable under section 302 read with section 34 of the Indian Penal Code and sentencing each of them to suffer life imprisonment and to pay a fine of Rs. 1,000/-, in default to suffer R.I. for one year. The prosecution case, briefly stated is as follows:—

Seema (deceased), daughter of Bajranglal Bhutada (P.W. 2) came to be married with Jaiprakash (original) accused No. 1) on 28-1-1992. After marriage, she went to stay with her husband Jaiprakash in the matrimonial home at Rajendra Prasad Road, Jalna. In the matrimonial home, the husband of the deceased Seema (accused No. 1) resided with his parents Sakharam and Rukhminibai (accused Nos. 2 & 3), elder brother Omprakash (accused No. 4) and his wife.

2. After the wedding which took place on 28-1-1992, the couple had been to Balaji. They returned from Balaji on or about 8-2-1992. Thereafter Jagdish, the brother of deceased Seema had been to her matrimonial home and had brought her to Latur. Seema and her husband (accused No. 1) stayed at Latur at her parents place for about three days and during their stay they visited Tuljapur. On 16-2-1992 Seema was sent back to her husband (accused No. 1). The stay of Seema in her matrimonial home along with her husband was uneventful until before the unfortunate incident in question which took place between the intervening night of 4th and 5th March, 1992.

3. On the fateful morning of 5-3-1992, however, Seema was seen in the lavatory of the ground floor by inmates of the house in burnt condition. Omprakash, the brother in law of deceased Seema lodged written report about the incident with Sadar Bazar Police Station, Jalna at 7.00 a.m. on the same day i.e. 5-3-1992. On the basis of this report which was received by Head Constable Ambadas Dube (P.W. 7), A.D. No. 6/1992 came to be registered and inquiry under section 174 of the Code of Criminal Procedure was undertaken.

4. Bajranglal Bhutada (P.W. 2), the father of Seema at Latur received information that his daughter has committed suicide. He along with his brothers and sons including Narayan (P.W. 1), reached Jalna. They reached the house of the appellants. The dead body of Seema by that time had been sent for post-mortem examination. The parents and brothers of deceased Seema insisted that they be allowed to see the dead body of Seema. They were, indeed, allowed to see the dead body. The dead body of Seema was subsequently came to be cremated on 5-3-1992. However, after a couple of days, Narayan, who happens to be the step-brother of deceased Seema, lodged report in the Police Station which came to be reduced in writing by P.S.I. Venkat Andhale of Sadar Bazar Police Station (P.W. 8). On the basis of this report, offence came to be registered by P.I. Jijaba Dhondiba of Sadar Bazar Police Station. All the appellants came to be arrested by P.I. Jijaba Dhondiba on 7-3-1992. Initially P.S.I. Arvind Kulkarni (P.W. 12) took up the investigation and recorded the statements of witnesses including that of maid servant Bhagirthibai (P.W. 14).

5. For certain reasons, the matter came to be entrusted to C.I.D. (Crimes). Babu Dube, P.I., C.I.D. (Crimes) (P.W. 13) received the case papers for investigation in this case. It appears that along with the case papers there was post-mortem report. Post-mortem on the dead body had been performed by a team of doctors including Dr. Bhanudas Surwase, examined as P.W. 9 and Dr. Bhadre. It appears that there were certain queries made to the Autopsy Surgeon by the Investigating Officer Kulkarni. Babu Dube, P.I., C.I.D. (Crimes) also made 13 quaries with Medical Officer. He found certain discrepancies in the answers to his queries given by Medical Officers and, therefore, he consulted Associate Professor Jinturkar of Forensic Medicine Deptt., examined as P.W. 10 and sought his opinion in the matter. After he completed the investigation, charge-sheet in the matter came to be filed. The appellants were charged for having killed Seema by strangulation and then setting her on fire. They were also charged with having ill-treated and harassed Seema on account of demand of dowry and subjecting Seema to cruelty, punishable under sections 498A and 304B of the Indian Penal Code. These charges were duly framed by the learned Sessions Judge and the appellants came to be tried before the 2nd Additional Sessions Judge, Jalna.

6. During the trial, as many as 14 witnesses came to be examined. The father of Seema Bajranglal (P.W. 2); her step brother Narayandas (P.W. 1) who had lodged the F.I.R., Purushottam Bhutada (P.W. 3), cousin of Seema and some other persons including Pandurang (P.W. 4), Ramdayal Baheti (P.W. 5) and a Priest Jaiprakash Sharma (P.W. 6) came to be examined. None of these witnesses stated about the ill-treatment meted out to Seema. There were letters written by Seema to her parents and other relatives during her stay in the matrimonial home, which did not indicate that she was, in any way, troubled. Seema and her husband had been to Balaji and after their arrival she was brought to her parental home also. The only evidence on this point which was brought on record was that a sum of Rs. 51,000/- was to be given as dowry and the father of Seema had a desire that the cost of Mangalsutra which was given to Seema (Rs. 15,000/-) was adjusted. The bridegroom’s side, however, thought that it was the Mangalsutra which was for the girl and, therefore, they were not ready for adjustment of this amount in the amount of Rs. 51,000/- agreed to be given in marriage. The learned Sessions Judge observed that there was no demand of dowry soon before the death of Seema and there was no ill-treatment to her. Correspondence between Seema and her parents was placed on record during trial. It did not appear from the letters written by Seema that there was any strain on the relationship. The evidence, on the contrary, was that the relations were normal and cordial. The learned trial Judge, therefore, proceeded to acquit the appellants for the offence punishable under sections 498A and 304B read with section 34 of the Indian Penal Code.

7. The learned trial Judge, however, on the basis of evidence of Anil Jinturkar, Associate Professor of Forensic Medicine Department, Aurangabad, who came to be examined as P.W. 10, proceeded to convict the appellants for the offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced them as indicated initially, by the impugned judgment and order. The learned Judge in the process rejected totally the evidence of Autopsy Surgeon Dr. Bhanudas Survase examined as P.W. 9.

8. We have heard Shri S.C. Bora, learned Counsel for the appellants as also Mr. K.G. Patil, learned A.P.P. for the State. We have gone through the evidence of Autopsy Suregon as also post-mortem report and the evidence of Anil Jinturkar, Associate Professor, Forensic Medicine Department. We have also carefully gone through the judgment of learned trial Judge as also the statements of the appellants recorded under section 313 of the Code of Criminal Procedure.

9. It would be seen that the dead body in burnt condition was found in the toilet on the ground floor of the double storeyed house of the appellants at 6.00 a.m. The first report about this incident came to be given by Omprakash (original accused No. 4). The report at Exhibit 71 was received by Head Constable Ambadas Ghuge, who had been examined as P.W. 7 in this case. In the report it was stated that the body of Seema in burnt condition was in the lavatory of the house. This report was received at 7.30 a.m. and A.D. No. 6/1992 came to be registered on the basis of this report. It would be significant to note that the parents of Seema at Latur received information that Seema had committed suicide. It would further be pertinent to note that father of Seema (P.W. 2)-Bajranglal had arrived at Jalna along with his brothers and sons and it would also be seen that the body of Seema was cremated in their presence of Jalna on 5-3-1992. Before the cremation, on their insistence, the body was shown to the persons of bride side.

10. It was thereafter on 7-3-1992 that Narayan, the step brother of Seema lodged report in the Police Station. In this report it was stated that when the body of Seema was seen by them, the tongue of Seema was protruding out of the mouth and that her face had become black and the allegations were made about the demands of dowry. The offence, it appears, came to be registered on the basis of this report and possibly on account of the public outcry and the matter was entrusted to C.I.D. (Crimes).

11. During the investigation by C.I.D. (Crimes), certain queries were made with the Autopsy Surgeons and finally Associate Professor of Forensic Medicine Department Anil Jinturkar was consulted, who gave his opinion in writing at Exhibit 83. Post-mortem on the dead body of Seema was earlier conducted as stated by us, by two Doctors.

12. On perusal of the evidence of Autopsy Surgeon Bhanudas Survase examined as P.W. 9, it would be seen that the deceased had sustained 100% burn injuries. The Autopsy Surgeons found burns present over abdominal region and found prolapse of intestinal loop at umbilicus region. Autopsy Surgeons came to the conclusion that the death was caused due to cardio respiratory failure, hypovolumic shock. The Autopsy Surgeon was of the opinion that the burn injuries found on the body were ante mortem. This Surgeon also stated to have examined hyoid bone and did not find any fracture thereof. This witness maintained that the burn injuries on the body of the deceased were ante mortem and that she had died on account of the burn injuries. Though the tongue of the deceased was found protruding from the mouth and loops of the intestine were coming from the abdomen, he gave explanations thereof in his evidence as also earlier in writing at Exhibit 80. Thus, the post-mortem was conducted by two Autopsy Surgeons and they maintained that the death was on account of the burn injuries. The post-mortem report and the answers to the doubts raised during investigation, were duly answered by the Autopsy Surgeons.

13. Anil Jinturkar, Associate Professor of Forensic Medicine Department, has been examined in this case as P.W. 10 and we have gone through his evidence very carefully. This witness was consulted during investigation. He had been asked to give his expert opinion and he had given his expert opinion at Exh. 82. In his expert opinion he stated that the burn injuries appeared to have been inflicted while the victim was in kneeling or recumbent position. It appeared to him that fire accelerant such as kerosene was used for burn injuries. He also stated that both the extremities below knee were not involved in the burn. This witness, in this evidence and also in his earlier written expert opinion, then went on to find faults with the post-mortem report. He stated that autopsy findings were not consistent in toto with the cause of death that has been given by Autopsy Surgeons. Since according to this witness, bleeding through ears needed to be viewed carefully. The victim did not appear to have taken breath while burning was going on. The Medical Officers though mentioned about absence of fracture of cricoid cartilage, they did not mention anything about hyoid bone, which is usually injured in manual strangulation. He found it difficult to agree authentically with the ante mortem nature of burns. This witness did not see symptoms that live person was set on fire. He opined that autopsy findings do not show beyond doubt that the burn injuries were ante mortem.

14. As stated by us earlier, the autopsy had been conducted by two Doctors, one of whom has been examined by the prosecution itself and Dr. Bhanudas Survase, who is the Autopsy Surgeon has been examined as P.W. 9. He has stated that the burn injuries were ante mortem and victim died of burn injuries. Earlier queries, raised during the investigation, have been answered by the Autopsy Surgeon. In his evidence, the Autopsy Surgeon has explained everything. According to him, the tongue may protrude outside the mouth. Loops of intestine were found coming out of the abdomen because of the burn injuries over abdome. He specifically stated that there was no fracture of hyoid bone. He also stated that in case of sudden death, presence of carbon particle may not exist in trachea. The Autopsy Surgeon also stated that there was no abnormal discharge from ears. He stated that on the basis of vital reactions noted by him in the post-mortem report, he came to the conclusion that the burn injuries were ante mortem.

15. On careful examination of the evidence of Autopsy Surgeon and that of Associate Professor, Forensic Medicine Department, we have noted that while Autopsy Surgeon is firm in his opinion that the burn injuries were ante mortem and victim died of burn injuries, the Associate Professor, Forensic Medicine Department has only raised doubt. Certain sysmptoms, according to him, have not been explained. What he said was that the post-mortem report did not conclusively show that the injuries were ante mortem. To quote his words, he said “he autopsy findings do not concur beyond doubt with ante mortem nature of burns though Medical Officer had committed to that affect…… “It is difficult to agree authentically with the ante mortem nature of burns”. Finally he said “there are no symptoms on going through the post- mortem report that live person was set on fire.”

16. Thus, what we have found in this case is that the report of post-mortem conducted by two Autopsy Surgeons, one of whom has been examined, maintained that the death on account of the injuries and that the burn injuries were ante mortem. As against that, P.W. 10, the Associate Professor, Forensic Medicine Department raises doubt and he does not agree authentically with the ante mortem nature of burns. This witness Anil Jinturkar, Associate Professor of Forensic Medicine Department does not positively say in his evidence that the burn injuries found on the victim were post-mortem in nature. This witness has no occasion to examine the dead body of the victim. He has only formed his opinion on the basis of post-mortem report and other documents. He is not firmly giving his own positive opinion. He is only raising a doubt on the report of the Autopsy Surgeon. One of the Autopsy Surgeons who has been examined in Court as P.W. 9, the reference of which has been made by us repeatedly earlier, has maintained that the death was on account of burn injuries and that the burn injuries were ante mortem. In view of this, there was no reason for the learned trial Judge to hold that the victim died homicidal death. In our considered view, there is no evidence, much less convincing, that the victim died homicidal death.

17. The observation made by the learned trial Judge that deceased Seema died on account of manual strangulation and not on account of burn injuries, in our considered opinion, is unwarranted. The learned trial Judge has himself taken into account certain features to come to the conclusion that the injuries were post-mortem. The learned Judge has erroneously taken these features into account, which have been duly taken into account and explained by the Autopsy Surgeon. The reliance placed by the learned trial Judge on the observations made by the Apex Court in the case of Mulak Raj v. State of Haryana, reported in 1996 Cri.L.J. 1358, in our opinion is erroneous. In that case, one Doctor had clearly stated that the victim died of asphyxia and clear signs of burnt area strongly suggested that the burns were post-mortem in nature. There was another medical legal expert who was Professor of Forensic Medicine at Lucknow, who clearly stated that victim died before and was burnt later and further that the death in that case was due to asphyxia which was result of suffocation. Thus, there was positive evidence of two Medical Officers which said that the patient was killed first and then was set on fire. In another case in the matter of State of U.P. v. Dr. Ravindar Mittal, , on which the learned trial Judge has placed reliance, the right cornua of hyoid bone was found fractured, which is not the case before us. The learned trial Judge has also misapplied the principle which is enunciated by the Apex Court in the case of State of Tamil Nadu v. P. Muniappan, reported in 1998(1) Crimes 74, where it is stated:- “When the doctor has expressed two views and if homicide is not completely ruled out, it must be held that the death of the deceased was homicide only when the entire circumstantial evidence points to homicide only and the medical evidence is not to the contrary.”

The learned trial Judge has erred in holding that there is evidence of homicidal death in the present case, while there is none. As we have already pointed out there is positive evidence of Autopsy Surgeon that the burn injuries were ante mortem. The Autopsy Surgeon has explained certain circumstances about which doubts were raised in writing during the investigation as also by the Associate Professor of Forensic Medicine Department (P.W. 10). As against that, the Associate Professor of Forensic Medicine only has raised doubts and has not given positive evidence. He only stated that he does not agree authentically with the ante mortem nature of burns. In view of this, the finding recorded by the learned trial Judge that the deceased Seema died homicidal death, cannot be sustained.

18. Apart from what is stated by us above, we have seen from evidence that parents of Seema received information soon after her death that she had committed suicide. The circumstances on record do indicate that Seema may have committed suicide. The allegations about ill-treatment, cruelty or demand of dowry have not been established. The letters written by Seema and other correspondence do not indicate that the relations between the couple were strained. On the contrary, they were cordial and normal. There was no demand of dowry. There were no injuries on the person of the deceased other than burn injuries. Suicide in the case is not ruled out. Under these circumstances, the conviction of the appellants for murder cannot be sustained. It has to be set aside.

19. In the result, the appeal is allowed. The conviction and sentences of the appellants for the offence punishable under section 302 read with section 34 of the Indian Penal Code are set aside. The appellants are acquitted. The appellant No. 1 who is in jail shall be set at liberty forthwith, if not required in any other offence. The fine, if paid any, be refunded to the appellants.

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