Oral Judgment: (V.M. Deshpande, J.)
1. The present appeal is filed against the judgment and order of conviction passed by the learned Additional Sessions Judge, Warora in Sessions Case No.5 of 2012, on 22nd of August, 2014. By the said, the appellant was convicted for the offence punishable under Sections 302 and 498-A of the Indian Penal Code. On account of his conviction for the offence punishable under Section 302 of the Indian Penal Code, the appellant was directed to suffer imprisonment for life and to pay a fine of Rs.5000/- and in default of payment of fine to suffer rigorous imprisonment for six months. As well, for his conviction under Section 498-A of the Indian Penal Code, the appellant was directed to suffer rigorous imprisonment for three years and to pay a fine of Rs.1000/- and in default of payment of fine to suffer rigorous imprisonment for three months.
PROSECUTION CASE :-
2. From the record of the sessions case, the prosecution case can be narrated as under :-
(A) Deceased is Bhavna. She is daughter of Smt.Chandrabhaga Meshram (PW 3) and Shankar Meshram (PW 6). Her marriage took place with appellant on 6th of June, 2011. Her death occurred on 10th of November, 2011.
(B) On 10th of November, 2011, appellant came to the Police Station, Chimur and filed his report (Exh.27). By the said, it was intimated that the appellant is working as Security Guard in Wardha Power Plant at Warora. He resides as a tenant in a house owned by Shankar Jumde (PW 2) in Abadi Ward. He was not attending duty since last three months and depending on the pension of his mother. His mother Ahilyabai was admitted in the hospital at Chandrapur and his sister was with her. In the house, his wife (deceased) and his maternal aunt, whose name he does not know, were present.
(C) On 9th of November, 2011 at about 8.30 to 9.11 p.m., the deceased had been to a Flour Mill. That time, the appellant followed her and on that account there was a quarrel in between them and upon that, the appellant slapped her. Thereafter, both had dinner before going to the bed.
(D) Rameshwar Jayaram Piprewar (PW 9), Police Inspector, registered Accidental Death (AD) No.33 of 2011 on the basis of the report lodged by the appellant. He visited the spot of the incident in Abadi Ward. He found that the spot of incident was a kitchen of the house and dead body of Bhavna was lying there in a burnt condition. Police inspector Piprewar thereafter prepared Inquest Panchanama (Exh.18). He also prepared panchanama of the spot of occurrence (Exh.17) in presence of panch witnesses. From the spot he seized one kerosene Stove, one burnt match-stick, burnt clothes and one match-box under Seizure Memo (Exh.19). He also took photographs of the spot of the incident with the help of photographer Shri Milind Raut (PW 7). The photographs are on record as Articles E/1 to E/6. Thereafter, he sent dead body for the Post Mortem. He requested for primary Post Mortem Report and accordingly the Medical Officer gave primary Post Mortem Report, which is at Exh.33. According to the said, the doctor expressed his opinion that the death is due to asphyxia due to throttling and postmortem burns.
(E) In the meanwhile, Smt.Chandrabhaga Meshram (PW 3), the mother of Bhavna, approached to the Police Station and lodged her oral report (Exh.22). In the said report it was reported that the deceased was subjected to cruelty at the hands of the appellant for demand of gold ornaments and also the appellant used to take suspicion over her character. The Investigating Officer Rameshwar Piprewar (PW 9) registered a Crime on the basis of the report lodged by Smt.Chandrabhaga Meshram as C.R.No.98 of 2011 for the offence punishable under Sections 498-A and 302 of the Indian Penal Code. The printed FIR is at Exh.23. Thereafter, he arrested the appellant under arrest Memo (Exh.55). He was sent for medical examination. His Police Custody Remand (PCR) was obtained and during the said period he made a disclosure statement in the presence of panch witnesses by which he agreed to discover the place where he had kept handkerchief used for strangulation and also the clothes which were on his person at the time of commission of the offence. The admissible portion of the statement made by the appellant is at Exh.14. Accordingly, the Investigating Officer along with the appellant and the panch witnesses went to the house of the appellant which was locked. The appellant took key from the neighbour and thereafter he opened the room and produced a handkerchief and the clothes. A seizure panchanama (Exh.14-A) to that effect was prepared. The muddemal articles were sent to the Chemical Analyzer and after completion of the investigation charge-sheet was filed.
3. A Charge was framed against the appellant by the learned Additional Sessions Judge, Warora under Exh.6 for the offence punishable under Sections 302, 498-A of the Indian Penal and under Section 4 of the Dowry Prohibition Act. The appellant denied the charges and claimed that he be tried. The prosecution has examined in all ten witnesses to bring home the guilt of the appellant. He was also examined under Section 313 of the Code of the Criminal Procedure. He also examined one defence witness Shakuntala. It is his specific defence that Bhavna has committed suicide and he is not responsible for her death. The learned Judge of the Court below after appreciating the case of the prosecution found that the appellant is guilty of the offence punishable under Sections 302 and 498-A of the Indian Penal Code and accordingly he was convicted and sentenced as mentioned in the opening paragraph of this judgment.
4. When this appeal came up for hearing before this Court, the learned counsel for the appellant chose to remain absent. However, in view of the following observations of Their Lordships of the Apex Court in the case of K.S. Panduranga vs. State of Maharashtra reported in 2013 ALL MR (Cri) 1485 (S.C.):-
"It is not obligatory on the part of the Appellate Court in all circumstances to engage amicus curiae in a criminal appeal to argue on behalf of the accused failing which the judgment rendered by the High Court would be absolutely unsustainable. It is one thing to say that the court should have appointed an amicus curiae and it is another thing to say that the court can not decide a criminal appeal in the absence of a counsel for the accused and that too even if he deliberately does not appear or shows negligent attitude in putting his appearance to argue the matter. Thus, the contention of the learned counsel for the appellant that the High Court should not have decided the appeal on its merits without the presence of the counsel does not deserve acceptance."
We have scrutinized the evidence with the assistance of the learned Additional Public Prosecutor.
5. The first question that has to be answered by this Court, in view of the defence taken by the appellant, is whether Bhavna met homicidal death or she committed suicide.
6. It would be useful to advert to the some undisputed facts as emerged during the course of the trial :-
(i) Deceased Bhavna's marriage was performed with the appellant on 6th of June, 2011 as could be seen from the marriage invitation card (Exh.25).
(ii) The incident occurred on 10th of November, 2011 at about 9 a.m. in the house of the appellant.
(iii) After the occurrence, the appellant gave a report (Exh.27) to Police Station Chimur.
(iv) At the time of incident, appellant and deceased were in the house and the maternal aunt of the appellant Shakuntalabai (DW 1) was outside the house sitting near the earthen furnace and was warming her hands.
From the aforesaid, it is clear in respect of the relationship of the appellant with the deceased and that she was residing with him in the house which was in exclusive use and occupation of the appellant and the deceased.
7. Dr.Sameer Patil (PW 4) has performed autopsy over the dead body of Bhavna. At the relevant time, he was serving as a Medical Officer at Rural Hospital, Chandrapur. His evidence shows that he is an experienced doctor, who has conducted more than 70 postmortems and attended about 500 medico legal cases.
He conducted Post Mortem over the dead body of Bhavna on 10th of November, 2011 with Dr.Sachin Borkar who assisted him. While conducting Post Mortem, he noticed that the condition of the body was well nourished and cold. Rigor mortis were present all over the body. He noticed no sign of decomposition except Post Mortem lividity. Eyes were close. Tongue was protruding outside the mouth with deposition of black soot over the protruded part of the tongue. He noticed that both the upper limbs were partially flexed at elbow joint and partly abducted at shoulder joint. Both limbs were partially flexed at both, hip and knee joint. On the external examination of the body he noticed following injuries.
"1. superficial to deep burn noted over the face with burnt eyebrow and eyelashes. Deposition of black soot is noted. Hairs are partially burnt. Appropriate percentage of burn is 8%.
2) superficial to deep burns are noted over anterior chest wall, anterior abdominal wall, deep burnt are noted over the lower abdomen and supra pubic region upto muscle deep lever. Appropriate percentage of burn is 15% to 18%. Back is spared.
3) superficial to deep burns noted over upper extremities over both arms on anterior aspect up to elbow. Appropriate percentage of burn is 4 to 5 %. Forearms and palm of both hands are spared.
4) superficial to deep burns are noted over lower extremes over thighs on arterier, lateral and anterio medial aspect. Deep burnt noted upto of level of bone deep on antero medial aspect. Appropriate percentage of burn is 9 to 10%.
5) superficial to deep burn noted over genital area/region. Deep burnt up to level of muscle deep. Appropriate percentage of burn is 1%.
6) superficial to deep burn are noted over upper part of both legs on posterior aspect. Appropriate percentage of burn is 2 to 3%. Total percentage of burn is about 40 to 45%."
According to the Autopsy Surgeon, all the burn injuries were postmortem. On the internal examination, he noticed fracture of thyroid bone and bruising of muscle surrounding the larynx. He found no black soot. Both the lungs were intact, congested and no black soot was found or noted in the same. In the buccal cavity he found tongue was protruding outside the mouth with deposition of black soot over the protruded part, however, no black soot was found or noted in the bucal cavity and pharynx. In the stomach, he noticed semi digested food but no black soot. Dr.Sameer Patil proved the Post Mortem Report, which is at Exh.31. According to the Autopsy Surgeon, on the basis of his external and internal examination, his opinion as to the cause of death is "cardio respiratory arrest due to asphyxia due to throttling followed with postmortem burns".
Dr.Patil's evidence shows that if a Rumal or handkerchief used for strangulating the neck, in that case fracture of thyroid cartilage is possible. His evidence shows that in Column No.20 (d) and (e) of the Post Mortem Report both the lungs were intact, congested and no black soot was found which indicates that after respiration was stopped, deceased was burnt. His evidence also shows that in bucal cavity, teeth, tongue and pharynges since no black soot was noticed and pharynges which shows that the respiration was stopped before burning, concludes that the death occurred prior to burning. Article "A", the handkerchief, was shown to Dr.Patil when he was in the witness box. He opined that, by this, the strangulation of neck is possible.
Perusal of the lengthy cross-examination of Dr.Sameer Patil shows that there is nothing to discard his evidence.
8. In view of the evidence of Dr.Sameer Patil and the findings as recorded in the Post Mortem report (Exh.31), it is clear that the death of Bhavna was homicidal one.
9. It is to be noted that PW 2 Shankar Jumde and PW 10 Ratnamala Nannaware has reached to the spot immediately on hearing the shouts of the appellant.
Shankar Jumde (PW 2) is the landlord. His house is double-storeyed building. He was residing on the first floor and the appellant along with the deceased was residing on the ground floor. Ratnamala Nannaware is also one of his tenants whose block is just adjacent to the block of the appellant.
10. On the day of the incident, Shankar Jumde came from his agricultural field at about 8 a.m. That time he noticed that deceased Bhavna was washing utensils infront of the house. After going to his house situated at first floor, after some time, Ratnamala Nannaware gave a call that Bhavna is burnt. Therefore, he immediately got down. The other persons of the area were also rushed there. He entered into the kitchen to notice that Bhavna was burning and the appellant was weeping at the door of the kitchen.
Ratnamala Nannaware (PW 10) also states that she came to know about the incident when the appellant made shouts. That time she and her husband went there. In the meanwhile, the landlord also came to the spot and she noticed that Bhavna was lying in a burnt condition, she was burning and the appellant was weeping in the first room that his wife is burnt. Thereafter, the persons gathered there poured water and extinguished the fire. She further states that at that time the maternal aunt of the appellant was sitting outside the house near furnace and except the appellant no other person was present in the house.
What is important to note from the evidence of these two prosecution witnesses is that when they reached to the spot they noticed Bhavna in burning condition, however, she was motionless and was not making any voice.
Shankar Jumde (PW 2) and Ratnamala (PW 10) are residing in a close proximity of the house of the appellant. Both of them did not hear any cry or voice of the deceased. On the contrary, their evidence shows that when they reached to the spot after hearing shouts of the appellant, they noticed that Bhavna was motionless. Their evidence further shows that the appellant was not making any effort to extinguish the fire. He was only found to be weeping in the another room of his house. In our view, the evidence of these two witnesses is a corroborative piece of evidence in respect of the nature of the death of the deceased.
11. The appellant has examined his maternal aunt Shakuntala (DW 1). From her evidence also it is clear that at the time of incident she was sitting outside the house near the furnace. In view of the evidence of Ratnamala and looking to the fact that the incident occurred in the month of November and it was Winter Season, therefore, a aged-lady like Shankuntala must be warming her hands on the furnace outside the house. Her evidence also shows that the people who gathered had extinguished the fire. Her evidence also shows that when she was sitting near the furnace, only the appellant and the deceased were inside the room and nothing could be seen what was happening inside the room from the place of furnace. She also states that when she entered into the room, on the shouts of the appellant, she noticed that Bhavna was burning and there was no movement of Bhavna. In view of the aforesaid evidence of Shakuntala, the defence witness, we are of the view that it is of no use to the appellant to suggest that the deceased committed suicide.
12. Once we reached to the conclusion that the deceased died of homicidal death, the question is, who is the author?.
From the evidence it is clear that at the relevant time only the appellant, his wife and his maternal aunt were at Chimur. From the report lodged by the appellant it is clear that his mother and sister were at Chandrapur. The evidence of PW 2 Shankar and PW 10 Ratnamala shows that at the relevant time the maternal aunt of the appellant D.W.1 Shankuntala was sitting outside the house near a furnace. In fact, said fact is also established through the evidence of Shakuntala herself. Not only that, Shakuntala has categorically stated in her evidence that only the appellant and the deceased were inside the house and she was sitting outside the house near a furnace and from there nothing is visible as to what is happening inside the room.
The appellant being husband, the deceased was in his custody. The house was in exclusive possession and control of the appellant. Not only that, at the cost of repetition, it is to be noted that at the relevant time only the couple was inside the house. In the present case the prosecution has successfully established the guilt of the appellant. The appellant has failed to offer any explanation about the death of Bhavha which was well within his special knowledge. In that behalf, it would be useful to refer to the law laid down in 2013 ALL MR (Cri) 456 (The State of Maharashtra vs. Laxman Narsinhrao Ganti and ors.), wherein it is held that when the deceased was under the custody of the husband at the relevant time, her death is to be construed as a custodial death and when the prosecution with the help of medical evidence has discharged the initial burden of establishing the guilt of the husband, the husband is to be explained the death of victim which is within his special knowledge.
Further, the seized articles were sent to the Chemical Analyzer through the Carrier, Anant Parage (PW 5). The Chemical Analyzer's Report is placed on record. It is at Exh.12. It shows that there were kerosene residues on the handkerchief and the clothes which were on the person of the appellant at the time of commission of offence.
13. In view of the evidence brought on record, it is crystal clear that the prosecution has proved its case beyond reasonable doubt that the cause of death of deceased was due to asphyxia, and the burn injuries were postmortem and it is the appellant only who is author of the death of Bhavna.
14. In our view, the learned Judge of the Court below has rightly appreciated the evidence in respect of the Charges under Sections 498-A and 302 of the Indian Penal Code. We, therefore, see no reason to disturb the said finding as recoded by the Court below. Consequently, we pass the following order.
ORDER
Criminal Appeal No.528 of 2014 is dismissed.