Dipee Mahendrasing Dogra Vs. State of Maharashtra - Court Judgment

A.R. Joshi, J.

1. Heard rival submissions on this Criminal Appeal preferred by the sole woman accused challenging the judgment and order of conviction dated 18.12.2012 passed in Sessions Case No.513 of 2009. The present appellant/accused was convicted for the offence punishable under Section 302 of Indian Penal Code and was sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/- in default to suffer RI for one month.

2. The case of the prosecution is narrated as under:

The first informant (PW-2) one Robin Masih was working as a peon in the nursing department at Military Hospital at Pune. Earlier his aged mother was residing at Punjab at his native place. His another brother by name Wilson Masiha (PW-3) was also working as a Peon in the Military Hospital at Udaypur, State Rajasthan. During the year 2007, said first informant Robin Masih (PW-2) had been to Lucknow to attend some departmental examination. While on his return journey, he met with the present accused and her husband. All were traveling in the same compartment. On the request of the husband of the accused, the complainant (PW-2) accompanied the accused to Pune and accordingly the complainant and accused came in contact with each other on different occasions as the accused was also residing in Pune in another premises. During their such acquaintance, the complainant and the accused developed sexual relations and consequently the complainant was visiting her place. During this period, the husband of the accused was away at different place for his duty. Thereafter subsequently sometime in March, 2009 the husband of the accused died at Jabalpur due to heart attack. That time, the complainant (PW-2) helped the accused and her children in performing the final rites of said deceased. Also in the meantime from January, 2009 onwards the mother of PW-2 was sick and was brought to Pune at the place of the complainant and she had undergone a major operation for pituitary adenoma, a type of cancer. The Doctors advised follow up treatment after the operation and as such in order to assist the mother of the complainant and to take care of post-operative treatment, it was arranged that the accused along with her son shall stay in the quarters of the complainant. By that time there were talks of marriage of the complainant and for that purpose he wanted to go back to his native place at Punjab leaving his aged mother under the care and control of the present accused. According to the complainant (PW-2), the accused was insisting on him not to get married and to continue to stay in the same house and cohabit with her. However, the complainant was not agreeing to this though they had sexual relations with each other very frequently.

3. Under the above circumstances, by keeping his mother in his residential quarter in the Army Cantonment along with the accused and her son, the complainant (PW-2) left Pune and went to his native place for his marriage which was to be performed on 15.4.2009. According to the complainant, on the earlier night i.e. on 14.4.2009 on two occasions, he made cell phone calls to the accused on the mobile. Those calls were made at 10:30 p.m. and 11:15 p.m. Through these calls he enquired with the accused regarding the condition of his mother. However, he was informed by the accused that his mother was okay and was sleeping and there was nothing to worry. Also according to the complainant at about 6:30 a.m. on 15.4.2009 i.e. on the day of his marriage, he again made a cell phone call to the accused asking for the condition of his mother and that time the accused revealed that on the earlier night after mid-night his mother had fallen in the house and she was fallen on a motorcycle which was kept in the main entrance room of the quarters of the complainant. The accused also disclosed that the mother has sustained injuries and as such was taken to hospital and that she had died.

4. Knowing the death of his mother, the complainant along with his brother (PW-3) came back to Pune on 17.4.2009 and saw the dead body of his mother (victim) kept in the morgue of the Armed Forces Medical College, Pune. There he noticed some injury marks on the forehead and other parts of the dead body of his mother and suspecting some foul play, he went to Wanwadi police station and lodged a complaint raising doubts against the accused as to she had killed the victim by strangulation. The complaint was taken down by the police officer (PW-5) one Rajendra Magar and crime was registered against the accused for the offence punishable under Section 302 of IPC. Inquest panchnama was drawn on the dead body then kept in the morgue and then the dead body was sent for postmortem and the postmortem report was obtained.

5. According to the Doctor (PW-4) Dr. Ragvendra Kotabagi, who performed the postmortem on the dead body on 17.4.2009, there were various injuries noticed by him. Said substantive evidence of the Doctor (PW-4) goes to show that there were injuries on the forehead by the side of nose, which were abrasions and also multiple abrasions on the neck as well as few contusions on the front and sides of the neck were noticed. The Doctor also noticed scratches on the right and left side of the neck and also noticed depressed abrasion on the left side of the neck. He also noticed bloody discharge from the nose but no fracture to the skull, but, noticed extensive sub scalp haematoma and mild congestion on external surface. He also found fracture of left superior horn of thyroid cartilage with haemorrhage in to surrounding tissues. He also observed that the 4th coastal cartilage on right side broken near the junction. Said PW-4 Dr.Ragvendra Kotabagi had given his opinion that cause of death was due to manual strangulation. He also noticed scyanosis of finger nails.

6. The present appellant/accused was arrested and the clothes she was then wearing were taken charge of on 17.4.2009 itself. The blood samples and the nail clippings of the victim woman were sent for Chemical Analysis and the victim's blood was found to be of “B” Group. The blood sample and the nail clippings of the accused were also sent for analysis but the blood grouping was inconclusive and there was no blood or any tissue found in the nail clippings of the accused. On completion of the investigation, charge-sheet was filed and the present appellant/accused was tried for offence of murder. Seven prosecution witnesses were examined during the trial and the appellant/accused was convicted for the offence of murder, as mentioned above. This is the judgment and order challenged in the present appeal.

7. At the threshold it must be mentioned that the entire case of the prosecution is based on circumstantial evidence and following circumstances are apparently held against the appellant/accused:

(i) The appellant and the complainant had illicit relations;

(ii) On the relevant day of the incident i.e. on the night between 14th and 15th April, 2009 the appellant/accused was in the company of the victim at the residential quarters of the complainant;

(iii) The victim was found dead in the said residential quarters of the complainant and it was so informed by the appellant/accused to one of the neighbours, another employee from the military, PW-1 Mohindar Sinha;

(iv) On the night of 14.4.2009 on two occasions i.e. at 10:30 p.m. and 11:15 p.m. the complainant had telephoned the accused enquiring regarding the condition of his mother and at 6:15 a.m. of 15.4.2009 he again made a cell-phone call to the accused asking for condition of his mother and during first two calls accused told him that his mother was sleeping and was quite well and there was nothing abnormal and during the third call she narrated regarding falling of victim in the house and thus succumbing to the injuries.

8. Apart from the above circumstances, according to the prosecution there was motive for the appellant/accused to do away with the victim woman as the appellant did not want the complainant to marry with someone else as she was desirous of continuing to stay with the complainant in an illicit relation.

9. During the arguments, learned appointed Counsel for the appellant/accused submitted that the circumstances alleged against the appellant/accused are not established by cognate evidence and that the apparent motive is also not established. It is further argued that it does not sound to reason and logic that the appellant/accused would kill a woman in the midnight between 14th and 15th April, 2009 when on the next day morning the complainant was to get married allegedly against wishes of the accused. It is further argued that had it been the motive of stopping the marriage of the complainant, any such attempt to compel the complainant to come back to Pune would have been done much prior to 15.4.2009 or even prior to 14.4.2009 and even if such an attempt has been made to do away with the victim woman, there would have been immediate disclosure to the complainant by the accused that his mother is seriously injured and dead, thus asking the complainant to immediately rush to Pune leaving aside the ceremony of his marriage. These arguments advanced on behalf of the appellant/accused are required to be considered in the light of the evidence produced by the prosecution and the said evidence is discussed hereunder.

10. The prosecution has examined total seven witnesses. Out of them PW-1 is Mohindar Sinha and according to him the appellant/accused has informed him in the morning of 15.4.2009 that the woman had fallen in the house and he was requested to see the situation. On this, said witness along with another neighbour by name Hari Jadhav went to the quarters of the complainant and noticed the situation and found the victim woman in an unconscious condition having injuries. According to said witness, the victim was taken to the Military Hospital in an ambulance and thereafter he went for his job and in that evening learnt that the victim woman had succumbed to the injuries. This evidence do suggest that the appellant was residing in the official quarters of the complainant and that time the victim was also staying there. At this juncture it must be mentioned that stay of the appellant/accused along with her son at the quarters of the complainant is not denied and what is denied is she having illicit relations with the complainant and on that count was opposing his marriage. Substantive evidence of PWs-2 and 3 is on the same lines as to the story of the prosecution and as per the first information report lodged by PW-2 Robin Masih. His evidence needs close scrutiny, more so in the light of evidence of PW-6 one Datta Angre, the officer from IDEA Cellular Ltd.. Through this witness, the call details / call logs for two mobiles were produced, one for the cell number – 9763398248, SIM card of which is registered in the name of the appellant/accused and for another cell number 9763398237 apparently registered in the name of one Amit Deokate of Latur. This factual position is substantiated by a letter given by IDEA Cellular Ltd. To Senior Police Inspector, Wanawadi Police station, Pune. Again it is a factual position and as narrated by the complainant (PW-2) that while leaving Pune for going to his native place for marriage, the complainant had taken the mobile handset of the appellant/accused which is having SIM card bearing No.9763398248 and in turn he gave his mobile handset having SIM card bearing No.9763398237 to the appellant/accused. If this factual position is accepted and if the story narrated by the complainant is considered as to making two cell-phone calls on the night of 14.4.2009 and one cell phone call in the morning of 15.4.2009, then the authenticity of this statement of the complainant is required to be seen. For this purpose on going through the call details of both these cell phone numbers, it is ascertained that there was no telephonic communications between these two numbers as narrated by the complainant and specifically making of two calls on the night of 14.4.2009 and at 6:30 a.m. on 15.4.2009. As such, the story that the complainant was made aware of the good condition of his mother by the accused on the night of 14.4.2009 by way of two calls of that date and narrating falling of the victim and succumbing to the injuries during the 6:30 a.m. call of 15.4.2009, falls to the ground. In other words, by the record produced by IDEA Cellular Limited of not having any call details for the said three alleged calls, the story of the complainant has been falsified. As such, it must be said that the complainant had tried to concoct a story as to the appellant/accused telling him regarding the condition of his mother. Again from the said call detail records, it is ascertained by us that at 9:28 p.m. of 16.4.2009 and at 7:24 a.m. of 17.4.2009, the appellant/accused had made calls to the complainant, however, the complainant is silent on these two calls. In any event for not finding any record for two calls of 14.4.2009 and one call in the morning of 15.4.2009 allegedly made by the complainant to the appellant/accused, the story of the complainant is rendered vulnerable.

11. Moreover during the cross-examination of PWs-2 and 3, who are the main witnesses of the prosecution, it is suggested on behalf of the appellant/accused, though denied by these witnesses, that the complainant had taken Rs.30,000/ for funeral expenses of his mother and performing last rites and as such there was also demand of Rs.10 lakhs from the appellant/accused and transfer of her room in the name of the complainant or otherwise to face dire consequences. Moreover, it can be seen that according to the complainant he had illicit relations with the accused and he wanted to get rid of her as he was to marry and in fact married on 15.4.2009 and as such possibility of false implication of the accused in the charge of murder cannot be ruled out. The defence of the accused is required to be viewed on preponderance of probabilities and viewing this defence in that perspective and considering that apparent motive for the murder has not been established by the prosecution, in our considered view, it must be said that the prosecution has failed to establish the charge of murder against the appellant beyond reasonable doubt.

12. So far as the injuries sustained by the victim are concerned, a possible defence has been raised on behalf of the appellant/accused mentioning that the victim had fallen on the motorcycle which was parked inside the room and apparently during the spot panchnama the pearl necklace from the neck of the victim was found broken and tangled with the motorcycle and some broken bangles were also found in the house. As such, the defence raised on behalf of the accused as to falling of the victim on the motorcycle and then sustaining injuries and then apparent fracture of left superior horn of thyroid cartilage, can be a possibility and can be accepted on preponderance of probability. Needless to mention that apart from the suggestion that the accused was staying in the quarters of the complainant along with mother of the complainant and she informing regarding the condition of the victim in the morning of 15.4.2009 to the neighbours, there is nothing in the case of the prosecution to link the present appellant with the charge of murder.

13. Before parting with this judgment, we wish to place on record a word of appreciation for the learned appointed Counsel Ms. Rohini M. Dandekar, who was appointed by the High Court Legal Services Committee to represent the appellant in this appeal. She has ably conducted the matter. We quantify the legal fees to be paid to her in this appeal by the High Court Legal Services Committee at Rs.5,000/-.

14. In the result, we are of the considered view as mentioned earlier, that the prosecution has failed to establish the charge of murder against the appellant beyond reasonable doubt and as such the present appeal must succeed and the same is accordingly allowed with following order:

(i) Criminal Appeal No.119 of 2013 is allowed;

(ii) Impugned judgment and order dated 18th December, 2012 passed by the Additional Sessions Judge, Pune in Sessions Case No.513 of 2009 is quashed and set aside and the appellant/accused is acquitted of the offence charged against her punishable under Section 302 of I.P.C.;

(iii) The appellant/accused shall be released from jail custody if not required in any other matter;

(iv) If fine amount is already paid, the same shall be returned to the appellant;

(v) Present order be communicated to the appellant/accused through the concerned jail authorities where the appellant/accused is presently lodged.