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Tatyasaheb Limbraj Patil-vs-The State Of Maharashtra on 8 June, 2011

Bombay High Court Tatyasaheb Limbraj Patil-vs-The State Of Maharashtra on 8 June, 2011
Bench: Naresh H. Patil, Mridula Bhatkar

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.524 of 2004

Tatyasaheb Limbraj Patil ..Appellant Vs.

The State of Maharashtra ..Respondent Mr. Prakash Naik for the Appellant

Mr. J. P. Yagnik APP for State

CORAM:- NARESH H. PATIL, &

Mrs. MRIDULA R. BHATKAR, JJ

DATED :- JUNE 8, 2011.

ORAL JUDGMENT (PER Mrs. MRIDULA BHATKAR, J.)

1 This appeal is directed against the Judgment and order dated 6-3-2004 passed by 5th Additional Sessions Judge, Solapur, convicting the Appellant-accused for the offence punishable under Section 302, 498-A and 201 of the Indian Penal Code (IPC). He is sentenced to suffer life imprisonment under Section 302 of IPC.

2 The incident of murder has taken place on 26-4-2003 at Barshi, District Solapur in the morning at 6.30 to 7.00 a.m. Victim Renuka Tatyasaheb Patil was the wife of the Appellant. The Appellant and the Victim got married on 6-2-2003, hardly 2 1/2 months prior to the incident. At the time of marriage two tolas of gold, some utensils and an amount of Rs.50,000/- by way of dowry was given to the Appellant. As per the case of the prosecution, the Appellant and the victim had a smooth married life just for one month, but thereafter a demand of Rs.1 lac was made by the Appellant and the said demand of Rs.1 lac could not be 2 app-524-04.sxw

fulfilled by the father P.W.-1 of the victim or her relatives. Deceased Renuka had complained to her father P.W.-1 and brother P.W.-6 about the demand of Rs.1 lac made by her husband. Immediately, after the marriage, on the festival of Gudipadwa, she had visited her maiden home and at that time she voiced about the said demand. Thereafter telephonically she has communicated about the harassment and assault at the hands of the Appellant, to her brother. On 26-4-2003, the victim’s father was informed on telephone about the death of his daughter, therefore, he along with his relatives and some villagers rushed to the house of his daughter where they found that she was burnt and was dead. P.W.1- the father of the Victim lodged an FIR and the offence under Section 498A, 302 and 201 was registered at C.R. No.58 of 2003 at Barshi Police Station against the Appellant. The police carried out the investigation. The postmortem was performed and the cause of death was declared as Asphyxia due to throttling. In the course of investigation, the police drew panchanamas on the same date and the statements of the witnesses were recorded within the couple of days. Police sent the articles to C.A. and obtained report. After completion of the investigation the charge sheet was filed. This being a case of the murder, it was committed to the Court of Session and charges under the relevant sections was framed accordingly. The trial was conducted before the Sessions Judge and was concluded in the conviction. Being aggrieved by this Judgment and Order the present Appeal is filed by the Accused.

3 The Learned Counsel appearing for the Appellant has raised the challenge mainly on the ground that there is no eye witness and the case is based 3 app-524-04.sxw

only on circumstantial evidence and motive is also not established. The motive brought on record by the prosecution is an after thought. How and in what manner the victim has died is not proved by the prosecution and the Learned Sessions Judge has erred in appreciating the evidence of witnesses on the point of the incident. The evidence of the police witness P 7, 8, 9 & 10 is .W.

inconsistent and ought not to have been relied. The learned Counsel argued that the prosecution has brought a very weak evidence on the point of motive that there was a demand of Rs.1 lac by the Appellant-Accused and the victim has complained about the said demand and the harassment including assault at the hands of the Accused, to her family members i.e. P.W 1 her father and P.W.6 her brother. He has submitted that in a short span of their married life i.e 2 1/2 months, they had smooth married life for a month and as per the prosecution, thereafter the demand was made. Thus, the period of harassment and demand was very short i.e. hardly a month and it appears improbable. He further pointed out that in the evidence of P.W.6, he had stated that a phone call was made by the victim in the house of PW-3 who was their neighbour. At that time according to the prosecution the witness was informed that her husband has given her a threat that if the amount of Rs.1 lac was not paid then there would be a serious consequence. The Leaned Counsel submitted that if this would have been the position, then it was natural on the part of the family members to lodge a complaint and make inquiry about the said demand. However, no such complaint of harassment and demand was made by the family members to the police against the Appellant. The Learned Counsel pointed out that in the cross- 4 app-524-04.sxw

examination of P.W.-1-father of the victim has given admission that he decided to lodge a complaint against the Appellant only when he was informed about the cause of death of his daughter was Asphyxia due to throttling. The Learned Counsel argued on the background of the communication of harassment and demand of Rs.1 lac. The appellant was a prime suspect and P.W.-1ought to have been lodged complaint against the Appellant, as soon as they reached to the house of the daughter. Why father P.W.-1 waited to lodge complaint till postmortem report was known ? P.W.-3 at whose residence telephone call of the victim about the harassment was received by P.W-6, did not say a word about such telephone call and conversation between the victim and P.W.-6 and, therefore, the story of the demand of Rs.1 lac and so also the communication in respect of the harassment or assault at the hands of the Accused to the victim, false and cooked up.

4 The authenticity of the FIR Exhibit-16 is challenged as P.W.-1 has admitted that the contents of the FIR were narrated by the Sarpanch of the Village and he merely signed the same. The learned Counsel further pointed out that the postmortem report shows the timing as 2.00 p.m. and the FIR was registered at 1.55 p.m., thus it is obvious the postmortem was performed before the recording of the FIR. The Learned Counsel drew our attention to Exhibit-29 which is a statement/FIR given by the Appellant. The Learned Counsel submitted that Exhibit-29 is so called FIR or statement of the Appellant is not recorded honestly but it is false document fabricated by the investigating agency. These submissions are based on the discrepancies in the evidence of P.W.-7, P.W.-9, and 5 app-524-04.sxw

P.W.-10. He pointed out that scribe P.W.-7 in his chief had stated that he reduced into writing the contents of Exhibit-29 and has signed below. However, subsequently when he was recalled he admitted that he did not record Exhibit-29. The Learned Counsel pointed out that the case of the prosecution in respect of the time of the incident and how it had occurred is not proved as the evidence of the police witnesses is inconsistent. He submitted that the timing of the FIR and the statement of the Accused and who recorded which statement could have been ascertained on the basis of the relevant entries in the station diary. However, prosecution did not produce such entries in the station diary. 5 While assailing medical evidence Learned Counsel has submitted that evidence of the Medical Officer i.e P.W.-2 is not accurate and cannot be believed. The rough notes which is a primary documentary evidence, is admittedly not produced before the Court. The Medical Officer has admitted that histopathology is conducted to ascertain whether the fracture of the hyoid bone is antemortem or postmortem and in the absence of histopathology the prosecution could not prove that the fracture of hyoid bone was antemortem. Moreover, while burning if the person inhales the smoke then the particles of the carbon are also inhaled by the person and such particles are definitely found in the trachea and larynx. It was necessary on the part of the Medical Officer -P.W.-2 to mention about presence or absence of soot particles in the postmortem report. The Learned Counsel highlighting these deficiencies in the medical evidence rendered by the prosecution submitted that the benefit of these deficiencies is to be given to the Appellant, as the prosecution could not come 6 app-524-04.sxw

with full proof case.

6 The Learned Counsel further on the point of scene of offence panchanama Exhibit-23 argued that the colour of the walls of the kitchen which was originally white was turned grey because of the smoke and the pieces of the clothes of the victim were lying scattered in the room. The Learned Counsel argued that if as per the case of the prosecution the victim would have been throttled first and burnt subsequently, then she must have been burnt in lying horizontal position and in that event the walls of the room would not have become smoky and the pieces of her clothes would not have also seen scattered in the room. The condition of the walls and the pieces of her clothes suggest that victim must have been standing or her body posture must have been vertical when she was on fire. The Learned Counsel argued that the medical evidence is not concrete and credible and circumstances do not support to hold that the fracture of the hyoid bone was antemortem. Circumstantial evidence produced by the prosecution is not trust worthy. Therefore, finding of the Learned Sessions Judge of convicting the Accused on the basis of this insufficient evidence is illegal and deserves to be set aside. He further points out that conduct of the accused cannot be given much importance when prosecution case is weak and unreliable. The Supreme Court has laid down the guide lines on appreciation of evidence and on this point the Learned Counsel placed reliance on Mulakraj & ors Vs. State of Maharashtra reported in (1996) 7 Supreme Court Cases 308, and Mula Devi & Anr Vs. State of Uttarakhand reported in (2008) 14 Supreme Court Cases 511, wherein the manner in which the victim wife was died and the 7 app-524-04.sxw

other facts in both the cases and the present case are more or less similar. In both the cases, the cause of death of the victim was Asphyxia and thereafter the bodies were burnt. On the point of appreciation of evidence a reliance was placed on Judgment of Division Bench in Jagannath s/o Damaji Pol Vs. State of Maharashtra reported in 2009 ALL MR (Cri) 2231.

7 Per contra, the Learned Prosecutor argued that while appreciating the evidence of the prosecution, this Court needs to consider the date of the marriage and the short span of the married life of the Appellant and the victim. The Learned Counsel pointed out that the victim was residing with her husband and she did not complained for one month and thereafter she complained about the demand of Rs.1 lac. He point out that there was a demand of dowry of Rs. 50,000/- at the time of marriage. On the point of demand of dowry of Rs.

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