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Prison, Kolhapur.-vs-Bombay. on 4 July, 2008

Bombay High Court Prison, Kolhapur.-vs-Bombay. on 4 July, 2008
Bench: F.I. Rebello, V.K. Tahilramani

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MGN

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE, CRIMINAL JURISDICTION

CRIMINAL APPEAL NO.28 OF 2006

1.Satish @ Satyajeet Pandurang )

Patil, Age about 28 years, )

Occupation Doctor. )

2.Pandurang Jotiba Patil, )

Age about 50 years, Occ. )

Service, )

Both R/o.Nagardale, Taluka )

Chandgad, Dist. Kolhapur. )

(At present in Kalamba Central)

Prison, Kolhapur.) )..APPELLANTS )(ORI.ACCUSED)

Versus

The State of Maharashtra )

(Notice to be served upon A.P.P.)

High Court, Appellate Side, )

Bombay. )..RESPONDENT Shri S.P. Kadam, with Mr. V.V. Purwant, for the Appellant.

Smt. M.M. Deshmukh, APP for State.

CORAM: F.I. REBELLO &

SMT.V.K.TAHILRAMANI,JJ.

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DATED: 4th July, 2008

JUDGMENT (PER F.I. REBELLO, J.):

. The Appellants, father and son are in Appeal against the judgment and order dated 31st December, 2005 in Sessions Case No.3 of 2005. The charge as framed against both the Appellants was that on 1st November, 2004 they committed murder of Ranjana, wife of Appellant No.1 and daughter in law of Appellant No.2 in furtherance of their common intention. A charge was also framed for the offence under Section 498-A of the Indian Penal Code, both read with Section 34 of the I.P.C. They have been convicted for the offence punishable under Section 498-A of the Indian Panel Code read with Section 34 of the I.P.C. and sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/- each. In default of payment of fine the concerned accused are to undergo rigorous imprisonment for three months. Both the accused have also been convicted of the offence punishable under Section 302 of the I.P.C. read with Section 34 of the I.P.C. and sentenced to life imprisonment and to pay a fine of Rs.1,000/- each and in the event of failure to pay fine to undergo imprisonment for three months. Both the sentences are to run concurrently.

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. The record shows that the accused were arrested on 2nd November, 2004 and were released on 31st December, 2004. During the pendency of the Appeal the bail application of Accused No.1 Satyajeet Patil was rejected. The Accused No.2 was released on bail on the same terms as during the trial on furnishing bond.

2. At the time of the hearing on behalf of the Appellants their learned Counsel submits that the case is purely based on circumstantial evidence. The cause of death is suicide and not homicidal. The learned Sessions Judge did not correctly address himself to the evidence on record more importantly the medical evidence. The evidence of P.W.3 Dr. Suhas Sharadchandra Sane, who had conducted the Post Mortem coupled with medical commentaries would clearly indicate that it was a case of hanging and not strangulation. Even otherwise the prosecution has not established considering this is a case of circumstantial evidence the chain of events showing the guilt of the accused beyond reasonable doubt nor established common intention. In so far as the findings under Section 498A are concerned, there is no merit whatsoever as there is no evidence and consequently the finding and consequent conviction and sentence on that count will also have to be set (-4-)

aside.

3. On behalf of the State, the learned A.P.P., submits that though this is a case of circumstantial evidence, the prosecution has been able to establish the chain of circumstances which unequivocally points to the guilt of the Appellants and common intention. In these circumstances it is submitted that the findings of the learned Sessions Court ought to be confirmed. In so far as Section 498-A, the prosecution has been able to establish demand for money as dowry. Hence the conviction on that count also should be confirmed.

4. The Appellant No.1 before us is a Doctor. Appellant No.2 is a teacher. The prosecution in support of their case have examined 12 witnesses including the I.O. The Appellant No.1 has examined himself as a defence witness. In his evidence it is his case that the deceased Ranjana died on account of hanging by committing suicide and at the relevant time of the incident neither he nor his father were at home.

. There are no eye witnesses who have seen Ranjana in a hanging position or being brought down from the hanging position. The evidence of D.W.1 i.e. Appellant No.1 discloses that the mother/wife (-5-)

of the Appellants Nos.1/2 was at home on that date and one Ekanath Dhanaba Patil and teacher Bharamu Vithoba Patil had lifted Ranjana and brought her through a passage to the front room when he reached home. They have not been examined as defence witnesses.

5. We will, therefore, examine the evidence as to the offence under Section 498-A. The demand for contribution towards cost of vehicle is before marriage and the vehicle was also purchased before marriage. P.W.1 – Shri Parasharam Saturam Bhoga is the father of the deceased Ranjana. From his evidence it has come on record that the Appellant No.1 before his marriage had informed that he wanted to purchase motor vehicle of Maruti make and the witness should help him. On the day of Gudi Padawa he informed that he had seen Maruti vehicle and had called upon him to bring the money. P.W.1 went to the house of the accused person and obtained Rs.90,000/- from the accused and contributed Rs.55,000/- and took in all Rs.1,45,000/- to Belgaum. He paid Rs.1,45,000/- for the purchase of the vehicle. Appellant No.1, Satish was present at Sai Agency, Belgaum when the vehicle was purchased. This evidence is sought to be corroborated by the evidence of Sou. Reshma Parasharam Bhogan, P.W.10, the mother of the deceased Ranjana. According to (-6-)

her the Appellant No.1 had asked her daughter whether her father would help him to some extent in purchase of vehicle and their daughter had appealed to them for help, for purchasing the vehicle. According to P.W.10 her husband P.W.1 obtained Rs.55,000/- from his brother in law Kallappa Bhogan, (P.W.8) and Appas Ambarekar resident of Kowad together and made over Rs.55,000/- to Accused No.1. The third witness in support of this case is P.W.8 Shri Kallappa Saturam Bhogan, the uncle of the deceased who confirms that he had advanced Rs.25,000/- to P.W.1 for that purpose.

. In cross examination of P.W.1 on the aspect of purchase of the vehicle he has admitted that the vehicle was purchased for Rs.1,27,000/- from Santosh Motors Ltd., Belgaum. and that the appellant No.1 had not disclosed anything regarding booking of the vehicle on 15th March, 2004 by making payment of Rs.5,000/-. He was not in a position to say anything about the transfer of Rs.96,245/- from the account of Nita Vasant Patil and transfer of Rs.33,000/-from the account of Suresh Bhimrao Huddar some 5-6 days prior to 21st May, 2004 in the account of Accused No.2. In so far as the evidence of P.W.8 is concerned, in his cross examination he stated that the amount of Rs.25,000/- was by way of hand loan and that had been paid back to him. Though he (-7-)

was maintaining the accounts of the shop he had not shown the accounts to the police. It is his case in evidence that he was having spare cash of Rs.25,000/- and from that he had paid Rs.25,000/- to P.W.1.

. From this evidence what emerges is that a vehicle was purchased before the marriage of Appellant No.1 with the deceased. The case of the P.W.1 that the vehicle was purchased for Rs.1,45,000/- has not been proved. On the contrary evidence has come that the Appellant No.1 had booked the vehicle and the vehicle was purchased for a sum of Rs.1,27,000/- and not from Sai Automobiles but from Santosh Motors Limited. Whereas the case of the P.W.1 was that the accused had made a request, evidence of the P.W.10 is that, the Accused No.1 had made the request through her daughter Ranjana. . In so far as the money for purchasing a Mobile phone it is not the case of P.W.1 in his evidence that the accused had made any demand. This has come for the first time from the evidence of P.W.10.

. The other aspect is of fees for the college. In so far as evidence regarding fees are concerned, in the cross examination of P.W.1, the receipt for (-8-)

payment of fees shows that the fees had already been paid on 18th October, 2004. Apart from that it is not her case that the Appellant demanded any money towards payment of fees.

6. Considering this evidence, in our opinion the prosecution has been unable to show that subsequent to the marriage there was any demand made by Appellant No.1 on either P.W.1 or to P.W.10. Under these circumstances, in our opinion, prosecution was unable to establish the charge under Section 498A of the I.P.C. The conviction of the Appellants for the charge under Section 498-A read with Section 34 of the I.P.C. is set aside.

7. Next issue is as to whether the death of Ranjana was suicidal or homicidal. Let us first consider the evidence on record except the medical evidence which will be dealt with later. None of the witnesses examined by the prosecution have deposed that they saw the body of deceased Ranjana in a hanging position nor has the defence brought on record any such evidence. There is also no evidence from any witness that they brought the body down nor has any witness deposed to seeing the body being brought down. The earliest witness to have seen the body of Ranjana is P.W.10 and P.W.8 the uncle of the deceased. According to P.W.8 on 1st November, 2004 (-9-)

he was informed by P.W.10 at 6.00 p.m. that she had received a telephonic message from Nagardale that Ranjana had hanged herself and was unconscious. He along with P.W.10 and some others proceeded to the house of the Appellants. On the way they met one Primary Teacher Bharamu Patil who informed that Ranjana had hanged herself and was unconscious. When they reached the house the body of Ranjana was lying in the front room on the first floor and three or four ladies were rubbing her feet. Shri Vithoba Oulkar of village Nagardale was also there. This Vithoba Oulkar informed P.W.8 that Ranjana was unconscious and he should call Doctor. P.W.8 thereafter took Ranjana to the hospital of one Dr. Parasharam Patil (P.W.6) at Kowad. They had noticed injuries on her neck. Dr. Patil informed that Ranjana had expired. In cross he has stated that he had informed the Doctor that it was learnt that she had tried to hang herself and was unconscious. . P.W.10 mother of the deceased in her evidence has stated that when they reached the house of the Appellants people had gathered there and they had taken Ranjana from the front room to the hospital of P.W.6. who declared her dead. From the hospital of Dr. Patil they took Ranjana’s body to village Nagardale and the police thereafter came there and took the dead body for post-mortem (-10-)

examination. The body was brought back to Nagardale and the funeral took place there.

. P.W.2 Sou.Shanta Santu Wandre, the Panch witness at the inquest panchanama in her cross examination admits that at the time of inquest panchanama, there was a saree of white and red colour around the neck of the dead body. P.W.4 Pundlik Tukaram Patil, Police Patil, in his evidence deposed that Vithal Oualkar had come to his house and had informed that the deceased had committed suicide by hanging and that the Appellant No.2 was searching him. When he reached the appellants home he had seen the dead body. At that time the parents of the deceased were also present. At this stage we may note that Vithal Oualkar has not been examined. P.W.5 Ranaba Vithoba Chougule was a Panch for the spot panchanama. In his evidence it has come on record that at the spot shown by the Police Patil (P.W.4), 4 syringes, one injection and cap as well as one hook were seized. The spot was kitchen room. There was a platform of waist height in the said kitchen room. The iron hook was detached from the frame of the said door. P.W.9 Pundlik Narayan Jadhav accompanied P.W.8 and P.W.10 in the vehicle. In his evidence he has stated that one Patil told them that deceased hanged herself and was unconscious. When they reached there, Ranjana was (-11-)

seen lying in front room on the first floor of the house of the accused and some ladies were giving massage to her legs.

. The Appellant No.1 had examined himself as D.W.1. It is the case of the Appellant No.1 that at the relevant time i.e. between 5.00 to 5.30 p.m. he was not at the house, as during that period as his friend was having fever and vomiting, he had gone to his house and given him medical treatment and returned back at 6.00 to 6.15 p.m. When he returned back he saw commotion on the first floor and he immediately rushed to the first floor where he saw Ekanath and Dhanaba Patil and teacher Bharamu Vithoba Patil lifting Ranjana and bringing her to the passage in the front room and his mother was accompanying them. On query his mother informed him that Ranjana had hanged herself with the help of Saree. He examined Ranjana and found her pulse feeble and breath uneven and he provided artificial breathing. Immediately he gave half CC injection of Idrinaline. His father reached there when he was providing first aid to Ranjana and his father instructed one Vithoba Oulkar to inform Police Patil.

8. The evidence on the spot of the incident as disclosed in the Panchnama i.e. the kitchen where (-12-)

it is alleged that Ranjana hanged herself needs to be examined. P.W.5-Ranaba Vithoba Tougule, has stated that kitchen platform was waist high. At the panchanama one iron hook was detached from the door and that was seized. P.W.10-Sou.Reshma Parasharam Bhogan in her evidence with reference to the kitchen room has deposed that there is one rack for utensils in the said kitchen and both the sides of kitchen, there are plat-forms of about 2 to 2 and 1/2 ft. The height of the kitchen is about 12 and 1/2 ft. to 13 ft. There were angles on the upper room of the kitchen and it was not easy to climb the platform in the kitchen room. In her cross it was put to her that tin-boxes are kept on wooden plank above the kitchen platform and to take out the said tin boxes one has to climb the kitchen platform.She denied that the height of kitchen room is about 8 and 1/2 ft. From a suggestion it has come on record that one hook is at the centre of the upper roof of the kitchen room.

. From the evidence of D.W.1 nothing has come on record in so far as the height of the kitchen is concerned as also the height between the Platform and the kitchen. There is also no evidence as to whether the deceased had hanged herself from the hook at the centre of the kitchen or from the door where there was a hook, if the defence of the (-13-)

Appellants is to be accepted.

9. From this evidence it would be clear that there is no eye witness who has deposed to have seen Ranjana actually in a hanging position or her body being brought down or any other ocular or documentary evidence. The only evidence which has come on record is the evidence of the witnesses that they saw the body lying in the front room. Though D.W.1 in his examination in chief had stated that when he returned his mother informed him that Ranjana had hanged herself, neither his mother has been examined nor the two persons Eknath Dhanaba Patil and Bharamu Vithoba Patil whom he had seen carrying Ranjana. In our opinion there is no evidence in support of the defence version that Ranjana committed suicide by hanging herself. The medical evidence will have to be considered to arrive at a finding whether death was homicidal or suicidal.

10. Before that let us examine the conduct of both the accused, before the date of the incident as also of the parents of the deceased. According to P.W.1 on 30th October, 2004 after he returned from duty there was a telephone call which was received by his wife P.W.10. P.W.10 informed him that the mother in law of Ranjana had informed that Ranjana (-14-)

was uneasy and he should rush to village Nagardale. He went with one Pundlik Jadhav to village Nagardale. When he reached the home of accused his daughter Ranjana was seated and she was weeping in her bed room. At that time Appellant No.2, his wife and the brother of the Appellant No.2 were standing in the frame of the door of the bed room. Seeing him Ranjana started weeping loudly. When he enquired of her, she said that she wanted to say something and started weeping more. He thereupon asked the Appellant No.1, his parents and uncle and his companion Pundlik Jadhav to wait outside. He closed the door from inside and enquired with the deceased. At that time she disclosed that she was molested twice by her father in law. He enquired of her whether she had informed this to her husband. The deceased informed him that Appellant No.1 was blaming her that she was defaming his father and belaboured her and threatened her not to disclose the same to anybody. Deceased told him that she would like to accompany him to Kowad that night. As he had come on bike and the other person was with him he pacified her that after 2-3 days he would come and take her to village Kowad. On his return he narrated the entire incident to P.W.10, who disclosed to him that Ranjana had earlier appraised her of such incidents. P.W.10 who has deposed that when P.W.1 came back he informed her that Ranjana (-15-)

was complaining that the Appellant No.2 was committing atrocities on her and that the deceased had informed him that she would not reside at the matrimonial home and would like to accompany him home. At that time P.W.10 informed him that Ranjana had already made complaint to her, but she had not informed him. In cross examination she has stated that she had asked the Accused No.1 about the complaint by her daughter of molestation by Accused No.2, but he had kept mum.

. In the evidence of P.W.10 it has come in evidence that the mother in law of the deceased had made complaint that the deceased does not know household work and she had requested that she should adjust. The mother in law said that panchas should be called to prepare a document on stamp admitting that the deceased does not know household work. The mother in law returned back on the very same day. That same evening she sent deceased back to the village with his son. After a fortnight she came back and she was nervous and when enquired replied that the father in law had outraged her modesty and that both the Appellant No.1 and Appellant No.2 used to beat her. She had pacified the deceased as she had to reside with the Appellant and sent her back to matrimonial home. After 1 1/2 months the Appellant No.2 had come to the residence and also (-16-)

complained that Ranjana does not know household work. At that time the Appellant No.2 had informed her that at Nagardale the daughters are being killed and the same may happen with Ranjana. Also in the day of the incident she had sent her son Pramod to bring back Ranjana. However, he was sent back by Appellant No.2.

11. This evidence of the P.W.1 and P.W.10 is sought to be criticised on behalf of the Appellants on the ground that in such a serious case of molestation and beating and the complaint by the deceased to P.W.1 on 30th October, 2004 and to P.W.10 earlier, it is impossible, that P.W.1 would not have taken her back home immediately and or for that matter P.W.10 would not have disclosed to P.W.1 about the allegations of molestation. It is also sought to be contended that if this had been the case then P.W.1 and P.W.10 as parents on coming to know of the death of the deceased would have immediately disclosed those facts to Police Authorities and not waited for the post mortem to be done.

. In our opinion it is not possible to accept this criticism. The marriage was not even five months old. The first thing parents in such circumstances in any Indian home, specially in rural (-17-)

areas would try to do is to save the marriage and honour of the family. P.W.10’s not informing her husband is understandable not knowing the reaction of P.W.1. According to this witness, she, however, had informed the Appellant No.1 of the same which would be the normal thing in such circumstances. Though P.W.10 has deposed that she informed the accused and though Accused No.1 has examined himself, except for a general denial as to molestation he has not explained this evidence of P.W.10. To question No.98 his only answer generally is that it was false.

. As far as the issue of molestation is concerned, though the criticism on behalf of the Appellants that there was no disclosure to the Police immediately in the context of the allegations may have deserved some credit, yet it cannot be disputed that on 30th October, 2004 P.W.1 was called to the house of the Appellants. On 1st November death was sought to be explained as suicidal. If, therefore, the parents kept quite on the issue of molestation and only disclosed the same after the Doctors P.M. report it is explainable,as they were earlier informed that Ranjana had hanged herself. Their stand can only be of grieving parents not going hysterical.

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12. In so far as assault is concerned it has only come in the evidence of P.W.10. There is no corroboration to that effect from P.W.1. In so far as the purported threat by the appellant No.2 made to P.W.10 again it is not corroborated. In the absence of any corroboration this part of the testimony as to assault and the threat issued by Appellant No.2 is not proved.

13. We may now examine the purported suicide note purported to have left behind by the deceased. In his evidence the Appellant No.1-D.W.1 has deposed that writing (D-D) was found beneath the bed of the appellant No.1 and the deceased on 2nd November, 2004 by his mother. It is in his evidence that he took xerox copy of that note. On 2nd November, 2004 when the Police had taken him and his father to Police Station, Chandgad, he had made over the xerox copy of the Note to the Police and had made a request to make investigation in respect of the said handwriting. The Police demanded the original note. He informed that it was not with him and he would not hand over the same to the Police and they should make investigation on the basis of that xerox copy. P.W.12 Shri Ashok Jagannath Bhoi, who was the I.O. in his cross examination, has denied that the xerox copy of the suicide note was made over to him by the accused Appellant No.1 for investigation. He also (-19-)

denied that Appellant No.1 requested this witness to collect specimen of handwriting and signature of deceased Ranjana from the school and elsewhere and that the witness was insisting to hand over the original suicide note.

. The Appellants had applied for bail. The learned Counsel was specifically asked as to whether reference was made to this suicide note in the bail application and as to whether the learned Judge has dealt with the same. The learned Counsel is not able to point out whether such an application was made. However, after considering the order passed on the bail application the learned Counsel submits that the order does not refer to any suicide note in the bail application. We find from the record that for the first time the application for placing the said document on record was made on 18th October, 2005. It is impossible to accept that such a vital document in the possession of the Appellant No.1 from 2nd November, 2004 and if proved, would have supported their case of hanging would be kept away from the investigating agency. The normal conduct would have been to produce it before the Court if the investigating agency was not conducting investigation into that aspect and ask for an enquiry.

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. The other aspect of the matter is according to the Appellants they tried to examine the handwriting expert, who had examined the said writing. We find from the records and the roznama that the learned Court had granted sufficient time and an application was moved on 23rd December, 2005 for adjournment based on the letter received from Anandrao G. Jadhav, Advocate, who according to the Appellant is also a handwriting expert. An order was passed thereon directing the handwriting expert to remain present on 26th December, 2005. On 26th December, 2005 the handwriting expert did not remain present. In the evidence of D.W.1 he had sought to prove the handwriting of the deceased with some Diaries. The witness to whom the question was put have denied that it was in the handwriting of the deceased. It was also put to the witness that after her marriage Ranjana was never signing as Ranjana Bhogan.

. The accused has, however, produced on record the Identity Card marked as Article D-3 on which there was signature of Ranjana, on which the signature has been identified.

14. To satisfy ourselves, so that injustice is not done, though the evidence of handwriting expert has to be considered with caution, See State of (-21-)

Maharashtra vs. Sukdeo Singh & Anr. 1992 Cr.L.T.3454, we have also occularly examined the signature on the xerox copy of the purported suicide note and the signature on the identity card. On an ocular examination we are clearly of the opinion that the signature on the purported suicide note and on the admitted signature on the identity card are different. The exercise can be done by the Court considering Section 73 of the Evidence Act (See Lalit Pople vs. Canara Bank & Ors. (2003) 3 SCC

583. The contents of the said document have not been proved nor the handwriting on the note. From this discussion it will be clear that the suicide note has been subsequently prepared to aid the defence.

15. Let us now consider the medical evidence which is on record. We will firstly refer to the evidence of P.W.6-Dr.Parashram Subrao Patil to whom the deceased had been rushed for medical treatment. The deceased was brought to him at about 8.30 p.m. of 1st November, 2004 and on examining the deceased he had found there were abrasions near the cheeks and that her death had occurred some 2 to 3 hours prior to his examination. He denied the suggestion that he was informed that the deceased had made an attempt to hang herself. He reiterated in his cross examination that death had occurred 2 to 3 hours (-22-)

prior to the examination. The only suggestion to him was that he had so deposed on account of pressure of Kallappa P.W.8 that death had occurred some 2 to 3 hours prior to the examination. From this evidence the timing of the death would be between 5.30 p.m. and 6.30 p.m. on 1st September, 2004.

16. Prosecution examined Dr. Sharadchandra Sane as P.W.3 who conducted the post-mortem of the deceased on 2nd November, 2004 along with his colleague Shri Khot. He noted the following surface wounds and injuries:-

1. Abrasion on right submandibular region starting from the middle of right ramus of mandible and extending down. Size was 2.4 cm. x by 1-1 cm. and it was covered red scab.

2. Abrasion in front of angle of mandible right side 4 mm. x 2mm., 2 cm. posterior to one covered with red scab.

3. Slightly carved linear mark on left side of larynx admeasuring 6 mm. x 1 mm.

4. Abrasion on left ankle lateral aspect 1 (-23-)

cm. x 1/2 cm. It was superficial abrasion and there was no bleeding.

. During internal examination it was found as under:-

1. Brain was congested.

2.Throax :- There was fracture of right greater cormu of hyoid bone coupled with scchymosis in surrounding tissues.

Right lung was congested with petechiae, excluding dark blood on sectin.

Left lung was congested with petechiae, excluding dark blood on section.

Abdomen: Pertaining to stomach and its contents normal contents slightly digested rice and dal.

. He has given opinion for the cause of death as axphysia due to throttling. Time of death is given as within one hour of last meal. The last meal according to D.W.1 was between 2.30 p.m. to 4.0 p.m. when Pramod had come and he had informed him that she had taken her meal.

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17. On behalf of the prosecution learned Counsel submitted that considering the fracture of the hyoid bone and the opinion of P.W.3, in support thereof the prosecution has proved that the death was homicidal due to throttling and not suicidal.

18. P.W.3 has deposed that fracture of hyoid bone is possible only in throttling cases. The congested brain and congested lungs are also signs of asphyxia, indicating throttling. He has further deposed that Police had asked him to do the medical examination of both the accused on 2nd November, 2004. He collected the blood sample and nail clippings of both the accused and forwarded it for chemical examination. He has further stated as under:-

“22. During post-mortem examination of the victim we did not notice any sign of hanging. We did not notice any sign of strangulation.”

This has been explained later, as the P.W.3 understood throttling as different from strangulation. This witness was cross examined at length. According to him the deceased was alive for some period considering the injuries noted at Sr. (-25-)

No.1 and 2. To the suggestion for the cause of asphyxia the witness admitted that it can also be due to hanging, strangulation, drowning and suffocation and that there are some common signs of asphyxial deaths. Cyanosis is the general to all type of asphyxial deaths. Similarly the congestion with petechea is found in all types of asphyxias. A suggestion was put to this witness that all the injuries noticed were common to all types of asphyxial deaths. The witness volunteered that the injury No.4 i.e. abrasion on left ankle lateral aspect 1 cm. x 1/2 cm. was not possible in case of hanging. Regarding abrasions he mentioned that the abrasions are caused due to hard and blunt object on surface and may be caused by hitting of hard and blunt object on that particular part of the body or that particular part hitting with a hard and blunt object. The spinal cord was found not to be cut and as such it was suggested to the witness that even in case of suicidal hanging spinal cord is not cut instantly. He deposed that in a case of hanging the concerned person makes violent movements voluntarily and then makes an attempt to loose the knot and in the process self-inflicted nail injuries are possible. Regarding injury specified in column No.17(4) of the memorandum of post-mortem the witness admitted that in case of voluntary movement coming into contact with hard and blunt object it (-26-)

could be so caused. The witness earlier had denied that throttling is strangulation, done by the human hand. However, when his attention was drawn to the commentary in Parikh’s Textbook, the witness accepted that throttling is a form of strangulation effected by hand and that throttling is one of the types of strangulation. The witness agreed that in case of throttling by force of hands or palms, oozing of blood from nose and ear is a common symptom whereas in case of hanging it is exceptional and that they did not notice oozing of blood from nose or ear in this case. In case of throttling victim usually tries to resist the assailant and in that attempt, the assailants may sustain injuries at the hands of victim. He denied the suggestion that formation of scab is one of the healing process and that for formation of scab, some 10 to 12 hours are required. They did notice any bruising of the tongue which is usual in a case of throttling. In case of throttling according to the witness usually larynx and trachea are broken.

. In case of hanging breaking of larynx and trachea is rare. In this particular case neither larynx nor trachea were fractured or broken. The witness admitted that he did not notice imprints of thumb or fingers which are noticed in case of throttling. However, deposed that injury No.3 (-27-)

indicates throttling. He denied the suggestion that if a smooth substance like silicon cloth is used ligature mark will not be noticed. The witness stated that the bleeding figuring in the photograph, on neck, is possible due to nail and that there appears to be oozing of blood from particular part of the injury.

. Learned Counsel for appellant therefore, submitted that the Doctor himself has admitted that “Asphyxia” is a general term and can also be caused by hanging and that brain congestion as well as congestion with petechea is found in all types of Asphyxia. It is also submitted that fracture of hyoid bone is noticed in all types of death including hanging. It is, therefore, submitted that the Doctor’s evidence is not conclusive. Merely because there is fracture of hyoid bone it cannot be said that there is a case of throttling. The learned Counsel has relied on Commentaries in the medical textbooks, to contend that finding a fracture of hyoid bone is not sufficient to establish that the death was homicidal due to throttling.

19. Let us consider the commentary in the medical textbooks relied upon by the learned Counsel for the Appellants. Reliance is placed on (-28-)

para.4.166 in Parikh’s Text Book of Medical Jurisprudence, Forensic Medicine and Toxicology, 6th Edition (hereinafter referred to as Parikh’s Textbook). The important comments drawn to our attention are that the hyoid is a U shaped bone having a body, and a greater and lesser cornuae on either side of the body. The lesser cornuae has a small cornical eminence at the angle of the junction of the body with greater cornuae. The injuries of this bone mainly include fracture. Fractures are some time encountered in hanging, ligature and manual strangulation and in direct trauma such as a run-over injuries of the neck. Attention is then invited to the following:-

“In persons especially of 40 years of age, the bone is ossified and relatively brittle.

It is therefore likely to fracture easily. In young persons the bone is resilient and elastic and therefore it usually does not fracture. However no age is exempt and the bone may fracture in the young or old when there is sufficient pressure on the neck.”

The learned Counsel laid stress in the differences between hanging and ligature strangulation. The same book, however, treats ligature strangulation as different from throttling (manual strangulation). (-29-)

. In the post-mortem report, fracture of greater cornuae of hyoid bone is noticed. In case of hanging and ligature strangulation hyoid fracture is not common, but when it occurs it is commonly of antero-posterior compression type involving the greater coronae at the junction of inner 2/3 and outer 1/3, the broken fragments being displaced onward. This would show that the theory that such fracture can happen in cases of hanging is strengthened. We may mention here that no explanation was sought from P.W.3 on this count. It is also submitted that injuries mentioned in the post-mortem report regarding outer parts of the body, especially injury No.4 of the ankle is not mentioned at all in the inquest panchanama drawn on 1st November, 2004 between 22.15 hours to 23.45 hours i.e. much before the post mortem examination of the body. Reference is then made to the commentary on the Medical Jurisprudence by Dr. K.S. Narayan Reddy to show the different features between hanging and strangulation. We may again point out that the every medical text deals with throttling or manual strangulation differently, from ligatures of strangulation. It is further submitted that if following factors are considered:-

(a) Absence of fracture of larynx and (-30-)

trachea would clearly show that it was a case of hanging and not throttling.

(b) Similarly, bleeding from nose, mouth or ears is not common in the case of hanging would support whereas it would be in the case of throttling. In the instant case there was no such bleeding and that would support the defence case of suicide.

(c) The tongue is bruised or is beaten by teeth in case of throttling but in case of hanging it is a rare thing. The Doctor’s admission that there was no bruising of the tongue, supports the case of the defence that it was a case of suicide.

(d) Normally in the case of throttling imprints of thumb or fingers are noticed however, no such imprints of thumb or fingers are noticed by the doctor in the present case.

(e) There is no signs of struggle or any resistance either on the body of the victim or on the persons of the accused.

(f). The nail clippings of the accused were (-31-)

sent for chemical analysis no blood was found there.

It would be clear that the prosecution has been unable to show that the death was caused by throttling.

20. Learned Counsel for the defence had placed reliance on Medical Jurisprudence and Toxicology by Dr. K.S. Narayan Reddy to show the difference between hanging and strangulation and to point out that in case of strangulation by ligature, fracture is uncommon. We may point out that it is nobody’s case that strangulation was caused by ligature. On the contrary the case of the prosecution is it is by throttling. Dr. Reddy’s commentary at the same time states that when the tongue and neck structures are firmly grasped and pulled upon, the hyoid bone may be fractured. The commentary also states that in case of homicidal throttling, the victims are usually infants, children or women.

21. Reliance was also placed on Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, 6th Edition to again submit that fracture of hyoid bone could be occasioned both on account of hanging or strangulation. In Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine (-32-)

and Toxicology at page 4.116 it is observed as under:-

“In hanging and ligature strangulation, hyoid fracture is not common, but when it occurs, it is commonly of antero-posterior compression type, involving the greater cornuae at the junction of inner two-thirds and outer one-third, the broken fragments being displaced onward.”

It is further set out as under:-

“In throttling (manual strangulation), the fracture is commonly of inward compression type, the broken fragments being displaced inward.”

The difference between hanging and strangulation, is that fracture of hyoid bone is rare and in case of strangulation it is set out as under:-

“Fracture of hyoid not rare in throttling cases (in the aged).”

In Modi’s Medical Jurisprudence & Toxicology, 22nd Edition, page 270 in the matter of hanging it is observed as under:-

(-33-)

“Fracture of the larynx and trachea–Very rare and that too in judicial hanging.

In case of strangulation it is observed as under:- “Fracture of the larynx an trachea-Often found also hyoidbone.”

22. P.W.3-Dr.Suhas Sharadchandra Sane who conducted the post-mortem along with his colleague Shri Khot is specific that he did not notice any sign of hanging. This witness also had stated in his examination in chief that he did not notice any sign of strangulation. This has to be considered in the context of his cross examination where he had taken throttling and strangulation to be different but then admitted that throttling is one of the types of strangulation. He has opined that death was on account of asphyxia due to throttling. To arrive at a conclusion that death was by throttling due to asphyxia he has relied upon fracture of hyoid bone which according to him was only possible in throttling case. In cross examination it was put to him that even in case of hanging hyoid bone may be fractured rarely. His answer was that this may be a rare occurrence, provided the concerned person is aged and ligature used is hard. This confirms with (-34-)

the Text Books which state that fracture of that hyoid bone can occur in the case of hanging in older persons. In our case the deceased was young. This witness has deposed that they noticed imprint of nail and injury No.3 indicates the same. Suggestion was put to him that nail clippings of the deceased were not collected. The witness volunteered that he could not get the nail clippings of the victim. The witness admitted that the victim was alive for some period after injuries on her person as noticed by them at Serial Nos. 1 and 2. Witness volunteered that the firm clot of blood adhered to the wound is scab. The witness also deposed that the bleeding figuring in the photograph, on neck, is possible due to nail and further that there appears to be oozing of blood from that particular part of the injury. He opined that the death of the deceased took place within one hour from the last meal.

23. What emerges is that as no nail clippings could be taken of the deceased as she had no nails and, therefore, she could not have casused the injuries noticed in the P.M. on herself. This will rule out injury Nos. 1, 2 and 3 as having been caused by the deceased herself. They must, therefore, be caused by some other person or means. The learned Sessions Judge also noted based on P-47 based on the request made vide P-46 that there were (-35-)

no marks of any injection on the body of the deceased and Ex-18-C, the C.A. report which was admitted shows that there was no blood found on the syringes. This must be seen in the context of the evidence of D.W.1 that he had given injection to the deceased.

24. On behalf of the appellant learned Counsel has relied upon the judgment in Khandu Pandu Jadhav vs. The State of Maharashtra, 995 (1) All M.R.

272.

272 The learned Bench there placed reliance in the judgment in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 S.C. 1622 and quoted para.150 of that judgment which reads as under:-

“Where various links in a chain are in themselves complete, then a false plea or a false defence may be called in to aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity.”

. Reliance is also placed in the judgment of the Division Bench of the Rajasthan High Court in Falku vs. State of Rajasthan, 1999 Cri. L.J.2138 to contend that when there are inherent (-36-)

improbabilities in the depositions and material evidence which was available was not brought before the Court the order of conviction is unsustainable. In our opinion the defence has not been able to show what evidence the prosecution has kept out. In the instant case witnesses who stepped into the witness box have been examined. The other witnesses whose statements were recorded but who were not ready to be examined an application was made by the public prosecutor to drop them and that was accepted. . Reliance was also placed in the judgment in Himmatahadur Naraahadur Thappa @ Jog vs. State of Maharashtra, 2004 All M.R. (Cri.) 3350. 3350 That was a

case of circumstantial evidence. Considering the material on record the learned Judge was pleased to hold that “Except his behaviour or conduct or his habit of drinking liquor and raising doubt about suspicion of paternity, there is no link to demonstrate that the accused personally strangulated his son and hanged his son and killed him.” in our opinion this judgment would be of no assistance.

25. We may now summarise the evidence as under:- (a) P.W.3-Dr. Suhas Sharadchandra Sane considering the post-mortem report and stomach contents has deposed that death (-37-)

would have occurred any time between 4.30 p.m. and 5.00 p.m. considering the contents of abdomen and on which aspect there has been no cross examination.

(b) From the evidence of P.W.-Dr. Suhas Sharadchandra Sane it has come on record that death could only have occurred on account of throttling considering the breaking of the hyoid bone. To the Various suggestions and medical evidence put to this

he has ruled out that death could be caused by hanging and opined that it was due to throttling. P.W.3 has further deposed that injury No.3 indicates imprint of nail which is occasioned in the case of throttling.

From his evidence it has further come on record that nail clippings of the deceased could not be taken. This can only be if the deceased had no nails. This rules out the possibility that Injuries No.1, 2 and 3 could have been caused by the deceased in the course of struggle, if she had hanged herself.

(c) It was not the case of the prosecution that the death was caused by hanging. This (-38-)

was the defence case. There is no ocular evidence produced on behalf of the defence, though the Appellant No.1 examined himself as defence witness that any witness had seen

the deceased in a hanging position or being brought down from the hanging position.

(d) Appellant deposed that he had administered injection to the deceased. The evidence shows no injection marks on the body and further the C.A. report shows no blood on the syringes.

(e) No explanation has come as to how the deceased could have gone upto the kitchen platform. To question No.107 put to the witness that the height of the kitchen room was 12 and 1/2 ft. to 13 ft. and to both the sides of said kitchen room, there are plat-forms of the height of 2 and 1/2 ft. to 3 ft. The only explanation is that the height of kitchen room is 9 ft. and 2 ft. on both sides there are platform is 3 1/4 ft. each.

(f) The suicide note as opined earlier is

not proved and has been produced to attempt

a false defence.

(-39-)

26. In our opinion, therefore, considering the evidence it would be clear that the defence of the Appellants that it was a case of hanging is to be ruled out. In our opinion the prosecution through the evidence of P.W.3, P.W.6 and in the absence of the defence proving the physical act of hanging based on the medical evidence and other circumstances have been able to establish that death was homicidal and not suicidal.

27. We then come to the issue of motive. In the instant case it has come on record through the evidence of P.W.1-Parasharam Saturam Bhogan that the marriage was solemnised on 11th May, 2004 and the death occurred on 1st November, 2004 i.e. within six months of the marriage. In the earlier part of our discussion considering the evidence on record we have not accepted the case of the prosecution under Section 498-A of the I.P.C., however, considering the evidence of both P.W.1 and P.W.10 as earlier discussed, the prosecution has been able to establish that Appellant No.2, the Accused No.2, had molested the deceased. The accused Appellants, therefore, in an attempt not to be exposed had killed the deceased.

28. In so far as presence of the Accused No.1, (-40-)

is concerned, it has come in his own evidence that on 1st November, 2004 he was at home. His case, however, is of alibi that at the relevant time when the incident took place he was not at home and for that purpose he has examined himself. In his evidence he has deposed that he had left the house at 5.30 p.m. and came back at 6.00 p.m. to 6.15 pm. The name of the friend has not been disclosed nor has the friend being examined in support of the plea of alibi. When the plea of alibi is used it is for the defence to establish the same. The presence of the accused having been established and the plea of alibi having not been proved, and also considering the evidence of P.W.3 placing the timing of death between 4.30 p.m. to 5.00 p.m. in our opinion the plea of alibi must fail. The conclusion, therefore, that must emerge is in the absence of any other evidence it is established that the accused was present at home when the incident occurred.

29. The case against Appellant No.2, Pandurang Patil. At the time of incident he was aged 55 years. Statement was recorded on 26th December, 2005. In the evidence of P.W.10 she has deposed that on 1st November, 2004 she has received a telephone call from Ranjana to send her father (P.W.1) immediately. As per direction of P.W.1 she (-41-)

had sent there, Shri Pramod to bring Ranjana at about 4 to 4.30 p.m. Her son returned back at 5.00 p.m. informing her that Pandurang (Accused No.2) had declined to send Ranjana to her parental home saying that hardly some days prior Ranjana had been to her parental house. P.W.4-Pundlik Tukaram Patil has deposed that Vithal Oualkar had come to him and informed him that daughter in law of accused Pandurang had committed suicide and that Pandurang was searching him. D.W.1 in his evidence has deposed that on that day his father was Head Examiner at Mandurg School and had not come to the house at the time of incident but had reached there when he was providing first aid to Ranjana, and had instructed one Vitoba Oulkar to inform Police Patil. From the evidence of P.W.10 as also the evidence of P.W.4 it is clear that accused No.2 was also present at the house. In his statement under Section 313 it is not his case that he was not present at the time when the incident took place. His only explanation was that “I want to submit in writing, it may be accepted.” It is only in the evidence of D.W.1 that the statement is made that accused No.2 was not present. This can be explained as an attempt of the son to keep his father out of the incident. The presence of the accused No.2 at home on that day is not denied. Only the time when the incident took place is disputed. In the absence of any (-42-)

explanation by Accused No.2 and the evidence of D.W.1 not being corroborated by any other evidence, presence of accused No.2 at the time the incident occured will have to be accepted.

30. Accused No.1 is a Doctor. It is not his case that when he administered injection to Ranjana she was dead. Apart from that this evidence of administering injection is belied by the absence of any blood on the syringe. In this aspect of the matter not rushing Ranjana to hospital, which thereafter her parents did, shows the conduct of the accused. Further we have earlier explained that every attempt was made to show that the deceased had left behind a suicide note. We have rejected the said suicide note as even on an ocular evidence the signature on the suicide note is different from the admitted signature of deceased Ranjana. It is true that a false plae does not absolve the prosecution from discharging its burden. In the instant case the burden has been discharged and considering that the false plea will have to be held adversely against the accused.

31. In so far as common intention is concerned, the fact remains that Ranjana died within six months of marriage and the death was homicidal and not suicidal. The presence of both the accused on a (-43-)

working day at home, the injuries on the deceased and allegations by deceased of molestation by accused No.2 have been accepted. The failure by the accused No.1 even after he had been informed by P.W.10 of the complaint by Ranjana would indicate that there was common intention on the part of both the accused to do away with the deceased. Apart from that the prosecution has been able to establish the falsity of the defence evidence. D.W.1 a Doctor if he really was not at home and gone to his friends home to treat him, would have disclosed his name and produced him as a witness. His mother admittedly was at home at the time of the purported incident. She has not been examined. Somebody must have brought down the body of the deceased if she had hanged herself, there is no evidence to that effect and lastly the suicide note if genuine would have surfaced at the earliest at least in the bail application. In our opinion, therefore, the learned trial Judge was right in convicting both the Appellants under Section 302 read with Section 34 of the Indian Penal Code.

32. In the light of the above the following order:-

(i). Appeal partly allowed to the extent that the conviction of the Appellants under Section 498-A of (-44-)

the I.P.C. is set aside.

(ii). The conviction and sentence under Section 302 of the Indian Penal Code read with Section 34 of the I.P.C. on both the Accused (Appellant) is confirmed.

(iii). Appellant No.2 is on bail. His bail is cancelled. He be taken in custody forthwith. (SMT.V.K.TAHILRAMANI, J). (F.I. REBELLO, J). J)

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