Raju vs State of Maharashtra

B.P. Dharmadhikari, J.—Appellant/accused has assailed the judgment dated 24.8.2012 passed by the Additional Sessions Judge, Nagpur in Sessions Case No. 16/2011 convicting accused for offence punishable under section 302 of Indian Penal Code and sentencing him to suffer life imprisonment and also to pay fine of Rs. 10,000/-.

As per prosecution, on 18.6.2010 on the strength of information supplied by police constable Satish from police booth at Medical College and Hospital, Nagpur, PW-11 Devidas Bhoyar registered Sana entry No. 31 and went to spot of incidence i.e. Suyog Colony, M.I.D.C. Butibori. Prosecution case is that spot of incidence is residence of accused/appellant and his wife (deceased) Sarita and accused throttled her to death at that place between 7 p.m. to 8 p.m. on 18.6.2010. After reaching spot, investigating officer Shri Bhoyar attempted to record statements of mother, father, brother and other relatives of deceased but those relatives were not in a position to give the same. He returned back to police station and made Sana Entry at Serial No. 35 about accidental death. Information was then given to Butibori police station which registered at Serial No. 37 in station diary entry the death of Sarita. On receipt of inquest panchanama AD bearing No. 40/2010 came to be registered vide Exh. 35 on 19.6.2010. Investigating Officer obtained death certificate on 21.6.2010 and thereafter got opinion of medical officer that death was due to throttling. Further investigation was conducted. Accused was arrested on 22.6.2010.

Prosecution has mainly relied upon evidence of PW-1 Dr. Nilesh Tumram who conducted postmortem and evidence of neighbours who have been examined as PW-2, 3 and 4. PW-6 Revati is mother of deceased while PW-8 Prakash and PW-9 Rukesh are brothers of deceased. Prosecution relied upon evidence of neighbours in an attempt to bring on record the nature of relations between accused and deceased while mother and brothers of deceased have been examined to point out cruelty and ill-treatment by accused to his wife deceased Sarita. PW-11 is investigation officer Shri Bhoyar.

On the strength of this material, trial court has found death of Sarita to be homicidal and held that accused caused said death.

Shri R.M. Daga for the appellant/accused has submitted that only reason for implicating accused is section 106 of Indian Evidence Act. He contends that in present facts it was not open to prosecution to rely upon said provision. He submits that there is no material on record to show that accused was seen with deceased at said residence shortly before her death. On the contrary, according to him, accused and daughter of couple aged about 8 years had gone to attend reception and that material is overlooked by the trial court. He submits that deceased might have committed suicide and accordingly defence was raised before trial court by accused. But mere failure to prove that defence does not mean that accused has committed murder of his wife by throttling her. He has also invited our attention to evidence of PW-1 Dr. Tumram to urge that tongue of deceased was found inside mouth and there was no oozing from mouth, nostrils and ears. There was no scalp injury and skull was intact. He, therefore, submits that in this situation death could not have been viewed as death by throttling. He has also invited our attention to evidence given by said doctor to show that as per said doctor injuries No. 1 to 4 of column No. 17 of postmortem report were not possible by constriction of neck by Odhani and were possible only by constriction of neck by hand. Doctor found injuries No. 6, 10, 11, 15,16, 17, 18 and 19 of column No. 17 to be caused by hard and blunt object while injury No. 5, 7, 8, 9, 12, 13 and 15 of column No. 17 to be caused by cylindrical hard and blunt object such as stick or rod. Advocate Daga submits that prosecution has not produced any such hard and blunt object. According to him, therefore, except injuries No. 1 to 4, all other injuries became irrelevant in so far as present controversy is concerned. He has also taken us through evidence of PW-3 Moreshwar and PW-4 Dindayal to demonstrate that these witnesses also did not show any dispute between appellant and his wife. Material on record shows cordial relations between deceased and appellant who was married more than 10 years back before 18.6.2010. He submits that prosecution has not levelled any charge under section 498-A of Indian Penal Code or under section 3 of Dowry Prohibition Act.

The alleged reason for ill-treating deceased i.e. birth of a disabled girl child who died thereafter could not have been viewed and has not been accepted as a ground against appellant. Another daughter is born thereafter and she was about 8 years old at the time of incident. He invites attention to evidence of Dindayal to show that appellant was at a marriage reception at 7.15 p.m. and therefore was not present at residence when Sarita committed suicide. Our attention is drawn to station diary entry dated 19.6.2010 (Exh. 34) where it is recorded that Sarita had hanged herself when her husband Raju and daughter were out for reception. He submits that there is no investigation by police authorities in this connection.

A.D. report at Exh. 35 taken on 19.6.2010 at 18.05 hours is also relied upon by him. He points out that as per said A.D. report incident took place at about 19.20 hours on 18.6.2010 while death took place on same day at about 22.05 hours. Reason for death has been mentioned as suicide by hanging. Exh. 36 station diary entry is also relied upon by him.

Our attention is invited to evidence of Investigating Officer to show that he recorded statement of relatives of deceased on 18.6.2010 itself but those statements have not been produced on record of prosecution. He also recorded statement of tenants of appellant on very same day but those statements have also not been produced. Even Odhani by which deceased hanged herself was not seized. Reference to said Odhani in spot panchanama is also pointed out by him. According to him, in this situation police ought to have recorded statement of daughter but that also has not been done. He argues that trial court in the impugned judgment in paragraphs 39 to 42 has found that prosecution could not bring on record any motive for commission of offence. Perverse finding has been recorded in paragraphs 62 and 63 of judgment by trial court that shortly before commission of crime the accused and deceased were seen residing together. He pointed out that incidence took place when accused and his daughter were away from residence and this fact has been lost sight of by the trial court.

He has placed reliance upon the judgment of Hon''ble Apex Court reported at Subramaniam Vs. State of Tamil Nadu and Another, (2009) CLT 1147 : (2009) CriLJ 3002 : (2009) 2 DMC 48 : (2009) 7 JT 403 : (2009) 7 SCALE 317 : (2009) 14 SCC 415 : (2009) 10 SCR 725 to submit that in this situation it was impossible to arrive at a conclusion that husband and husband alone was responsible for the offence. Judgment of Division Bench of this court reported in Vandana Vs. State of Maharashtra(2015) ALLMR(Cri) 1910 : (2015) 1 BomCR(Cri) 775 is relied upon to urge that burden of proving the fact within his knowledge never shifted to appellant as prosecution could not establish its case against him beyond reasonable doubt.

Learned APP Shri Mirza submits that appellant/accused has taken the defence of suicide by deceased by hanging and use of Odhani for that purpose. He has failed to discharge this burden or prove this defence. Injuries noticed in postmortem report and evidence of PW-1 Dr. Tumram show that injuries were not possible by Odhani and death could not have been by hanging. Death is, therefore, by throttling as recorded in postmortem report. He points out that PW-2 Shilpa, neighbour of appellant, was approached first and when she went along with the appellant to his residence, she found body of Sarita on ground and not in hanging condition. According to him, therefore, defence of death by hanging with use of Odhani stands negated. As the appellant was the first person to see Sarita in such condition, burden was upon him and hence reference to section 106 of Indian Evidence Act by trial court is justified. APP Shri Mirza also points out that tenants whose statements were recorded on 18.6.2010 could not disclose any material fact and hence their statements were not produced before trial court. Similarly, parents, brothers and other relatives of deceased were not in a position to give any statement on 18.6.2010 and as such there was no question of producing the same before trial court. Injuries on body of Sarita came to light only after receipt of postmortem report and then the relatives gave their statements which have been recorded and produced before the prosecution. Strange relations between the couple have come on record and appellant used to harass deceased as she gave birth to a disabled child. He submits that thus motive is also sufficiently established. The appellant throttled deceased and then attempted to create a show that she hanged herself by Odhani. In the light of evidence of Medical Officer that death was due to throttling and injuries were not possible by use of Odhani, it was not necessary to send Odhani to expert.

He has justified use of Section 106 of Indian Evidence Act in present situation. He points out that all events took place in closed room in occupation of couple and no outsider could be blamed about the same. As such, burden was rightly placed upon appellant by taking recourse to Section 106 of Indian Evidence Act. According to him, appellant came up with defence that Sarita hanged herself from a ceiling fan by using Odhani. He then brought her down and called neighbours. As this story of hanging has been falsified, it is apparent that the appellant throttled his wife. He, therefore, prays for dismissal of present appeal.

The perusal of evidence of PW-3 or PW-4 shows that Sarita was in unconscious condition when she was removed from spot in a private vehicle to hospital. She was first taken to Choudhari Hospital at Butibori and Dr. Choudhari referred Sarita to Nagpur. On way they brought Sarita to Vivekananda Hospital situated at Khapari but Medical Officer there failed to admit Sarita and asked them to shift her to Nagpur. She was then brought to Orange City Hospital, Nagpur and that hospital also did not admit Sarita but asked them to shift her to Government Medical College and Hospital at Nagpur. She was accordingly taken to that hospital and doctor there declared Sarita dead at about 10 p.m. PW-3 Moreshwar states that Sarita was unconscious when she was moved from her residence in vehicle. PW-4 Dindayal has stated that Dr. Choudhari advised to refer Sarita to hospital at Khapari and hence Sarita was taken to Vivekanand Hospital at Khapari but she was not admitted there and hence she was taken to Orange City Hospital at Nagpur. Medical Officer at Orange City Hospital declared Sarita dead. She was then taken to Government Medical College and Hospital at Nagpur and Medical Officer there declared her dead between 9.30 p.m. to 10.00 p.m.

PW-2 Smt. Shilpa went to residence of Raju upon his request. At residence of Raju, she saw Sarita lying on ground without any movement. She then went to her residence and phoned her husband Moreshwar who has been examined as PW-3.

None of these witnesses state that they saw deceased hanging from ceiling by Odhani. They also do not say that appellant Raju had brought her body down. It is PW-4 Dindayal Lande who informs that police had inquired with Raju and Raju (appellant) told police that Sarita had hanged herself. Again he does not say that Sarita had hanged herself by using Odhani.

Perusal of station diary entry at Exh. 34 shows that it is taken on 19.6.2010. It mentions that ASI Govindrao gave information on telephone that Sarita had hanged herself on 18.6.2010 when her husband Raju and daughter were out attending reception. A.D. report at Exh. 35 taken at 18.05 hours on 19.6.2010 again reiterate very same fact. It also mentions that she was brought down by removing Odhani and then taken to hospital. Exh. 36 is entry taken on same lines in station diary.

Thus, police authorities were aware of the plea that deceased had committed suicide by hanging herself with the use of Odhani when appellant Raju and his daughter were out attending reception.

Before proceeding further to examine this aspect, it will be necessary to find out the material on record to support the plea of ill-treatment or harassment. Trial court itself has not relied upon evidence of mother and brothers of deceased i.e. PW-6, 8 and 9 for this purpose. Evidence of of PW-2, 3 and 4 who are neighbours does not show any quarrel or dispute taking place between couple. On the contrary, their evidence shows visits by in-laws of appellant i.e. parents of deceased to her house. We have already noted supra the conclusion of trial court that prosecution could not prove any motive for commission of crime.

Evidence of PW-4 Dindayal shows that he met Raju at reception of a marriage organized in their locality at 7.15 p.m. on 18.6.2010. The A.D. entry and station diary entries mentioned supra also reveal knowledge to police authorities that Raju and his daughter were out when something went wrong at his residence. Contention of learned APP that as Raju did not establish his defence of suicide committed by Sarita by using Odhani, offence under Section 302 of IPC stands proved against him needs to be viewed in this background.

Judgment of trial court shows that prosecution relied upon following circumstances to prove guilt of accused.

(i) Body of deceased Sarita having petticoat and blouse on it, was found in the house of accused lying on floor;

(ii) Good condition of ceiling fan without any damage and finding of body on floor allegedly got down by accused improbalizes suicidal death;

(iii) Conduct of accused for hospitalization of deceased.

(iv) In the house of accused hair bunch was found. Its Chemical Analysis discloses hair as human.

(v) Case of prosecution that deceased was assaulted before her death is corroborated by medical evidence.

There is no eye witnesses and conviction is based on circumstantial evidence, law on the point of circumstantial evidence is well settled. All circumstances forming chain must be established beyond reasonable doubt. The circumstances must constitute a link which indicates nothing else but guilt of accused only. Any inconsistent material or circumstance cannot be ignored. Reference in this respect can be made to judgment of Hon''ble Apex Court in case of Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 : (1984) CriLJ 1738 : (1984) 2 SCALE 445 : (1984) 4 SCC 116 : (1985) 1 SCR 88 .

Finding of body of Sarita at her own residence by itself cannot be an incriminating circumstance against appellant. The efforts made by accused to get her hospitalized also cannot form such a circumstance. Time of death on record is 10.05 p.m. i.e. about two and half hours after the body was found in the bed room. Thus, at that time she was alive. Finding of bunch of hair in residential house where women reside again cannot be an incriminating circumstance. Marks of injuries or assault on body again does not mean that it is appellant/accused who assaulted deceased. As such, the circumstances pressed into service by prosecution do not form a chain of incriminating material.

The trial court has found that PW-10 Anil Hiwase had deposed that accused Raju had told him that a day prior to death of Sarita he had given 2-3 fights (hand blows) to Sarita. This material finds consideration in paragraph 45 and 46 of the impugned judgment. The trial court has recorded that said version of witness has remained unshaken. Perusal of evidence of this witness shows that Raju had narrated to him about verbal altercations as he attended marriage ceremony a day prior to the incidence and about Raju giving fight to his wife. His cross-examination in paragraph 5 shows that this was not so specifically stated in his statement under Section 161 of Code of Criminal Procedure. This narration or such altercation a day prior to incidence cannot by itself associate accused with death of Sarita. PW-4 Dindayal has stated that Raju was seen by him at reception of a marriage in locality at 7.15 p.m. This material has not been controverted by prosecution. If Raju and his daughter were at reception at 7.15 p.m., it is apparent that Raju was not at his residence and deceased alone may be present there. In this situation, finding of body of deceased on floor of her bed room does not mean that it is accused/appellant Raju who has assaulted or throttled her. Failure of Raju to prove his defence in this situation cannot be viewed as a circumstance decisive to conclude that it is Raju who throttled Sarita. The witnesses have not pointed out any hostility between couple and the trial court has not recorded any such finding. There was no charge either under section 498A IPC or Sections 3 of Dowry Prohibition Act in the matter.

Police have not investigated the attendance of Raju at marriage reception. They have also not recorded statement of his daughter. Thus, material inconsistent with presence of accused at his residence has been left unattended by police authorities. This lacuna is itself sufficient to hold that the complete chain of circumstances indicating nothing but guilt of accused or facts ruling out involvement of any third person is not established by the prosecution. Investigating Officer PW-11 Shri Bhoyar has stated that he recorded statements of mother, father, brothers and relatives of deceased on spot of incident on 18.6.2010 and 19.6.2010. However, those statements are not produced on record. The station diary entries made by him show that at least till 22.6.2010 there was no material on record casting doubt on the nature of death of Sarita. For the first time on 22.6.2010 after postmortem report, PW-11 registered crime under Section 302 against the appellant/accused and arrested him. Deposition of PW-11 Shri Bhoyar also shows that he recorded statement of tenants namely Sunil Parmanand Tiwari who occupied a room in the house of accused but that statement has not been produced before court. Wife of said Sunil also stated that she was snot knowing about the incident though she was present in the tenanted room. Thus, nobody has pointed out any assault on deceased by appellant. The contention that Odhani was not seized by police authorities appears to be incorrect. On the contrary, PW-11 has accepted suggestion that he did not send Odhani along with letter Exh. 13 to L.M.J. for making query.

In this situation, we find that circumstantial evidence brought on record by prosecution does not constitute complete chain. Said events are insufficient to implicate the appellant/accused only in the matter. Material inconsistent with theory of guilt of accused or conducive to his innocence has not been investigated into. Reliance upon presumption under section 106 of Indian Evidence Act in this situation is unwarranted.

Accordingly, we quash and set aside the judgment dated 24.8.2012 in Sessions Case No. 16/2011 delivered by Additional Sessions Judge, Nagpur and acquit the appellant of offence punishable under Section 302 of Indian Penal Code in the matter of death of his wife Sarita. He be set at liberty if his custody is not required by State in any other matter. Amount of fine of Rs. 10,000/-if deposited by appellant, be refunded to him. Muddemal Article ''C'' be destroyed after the period of filing of appeal is over.