Tulshiram, Sindhubai and Nitin vs The State of Maharashtra

P.V. Hardas, J.—The appellants being aggrieved by the judgment of Vth Adhoc Additional Sessions Judge, Ahmednagar, dated 10.1.2005, in Sessions Case No. 102 of 2004, convicting the appellants for offence punishable u/s 302 read with Section 34 of the Indian Penal Code and Section 498-A read with section 34 of I.P.C. and sentencing them to imprisonment for life and to pay a fine of Rs. 1000/- in default to suffer further R.I. three months and R.I. for two years and to pay a fine of RS. 500/- each, in default to suffer further R.I. for one month and directing the substantive sentences running concurrently, have filed the present appeal challenging the aforesaid conviction and sentence. Such of the facts as are necessary for the decision of this appeal can briefly be stated thus:

P.W. 2 Sampat Suryawanshi lodged his complaint at Exh. 26 intimating the police that the dead body of deceased Ashabai was seen floating in a well belonging to one Sarjerao Suryawanshi. On the basis of the said information Accidental Death No. 3 of 2003 came to be registered on 28.2.2003 at 4.15 p.m. On registration of Accidental Death, the enquiry thereof was entrusted to P.W. 4 Police Head Constable Sahebrao Bondre, who was attached to Karjat Police Station. He accordingly proceeded to the well situated in the aforesaid agricultural field and removed the dead body from the well by using a rope and a wooden cot. On removing the dead body from the well, he noticed that both the hands and legs of the deceased Ashabai were tied by means of the border of a Sari. He accordingly drew the inquest panchanama at Exh. 29 in the presence of P.W. 5 Dada. The dead body was then referred to the Medical Officer, Karjat for post mortem examination. P.W. 4 Head Constable Bondre then went to the scene of the offence and drew the scene of the offence panchanama at Exh. 30 in the presence of witnesses. He thereafter handed over further investigation to P.I. Shinde. Post mortem on the dead body of deceased Ashabai was performed by P.W. 6 Dr. Rajashri Pagaria. She found that the lower extremities were tied at ankle joint by means of a piece of Sari and the upper extremities were found tied by means of cloth at the wrist joint. She further opined that the tieing of the hands and legs was not possible by the victim. She noticed external injuries which were post mortem injuries and acquatic injuries. She noticed frothy fluid in the larynx, trachea and bronchia. She also noticed that the right lung was edematous and cut section oozed blood. She also found that heart was full of blood and tongue was inside the mouth. Stomach contained about 200 M1. of water. The large intestine contained faecal matter. She therefore opined that death was due to drowning. The post mortem report is at Exh. 35. P.W. 8 P.I. Shinde, who was attached to Karjat Police Station as a Police Inspector was handed over the investigation of Crime No. 24 of 2003 registered u/s 302, 498-A read with section 34 of the I.P.C. On 1.3.2003, he recorded the statement of witnesses and tried to trace the accused at village Chanda Walwad and accordingly arrested accused No. 1 and 2 on 2.3.2003. During custodial interrogation, accused No. 2 Sindhubai had expressed her willingness on 5.3.2003 to point out the Sari which was hidden by her. On the basis of the disclosure of accused No. 2 Sindhubai, a memorandum came to be drawn at Exh. 40 in the presence of P.W. 7 Amrut. In pursuance of the said memorandum, accused No. 2 took the panch and the police to the house of the accused and removed a Sari which had been concealed in the roof of the house. The said Sari accordingly came to be seized in the presence of panchas vide panchanama at Exh. 41. The said Sari is Article-5. Accused No. 3 was absconding and on completion of the investigation a charge sheet against the appellants came to be filed. Accused No. 3 thereafter was traced and was arrested. The arrest panchanama of the accused are Exh. 54 and Exh. 55.

On committal of the case to Court of Sessions, Trial Court vide Exh. 10 framed a charge against the appellants for offence punishable u/s 498-A read with section 34 of I.P.C. and Section 302 read with Section 34 of the I.P.C. An additional charge also came to be framed for offence punishable u/s 304-B read with Section 34 of the I.P.C. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined eight witnesses. The defence of the accused is of denial and have claimed that they have been falsely implicated. The trial Court upon appreciation of the evidence found that the prosecution had been able to establish beyond reasonable doubt the charge for offence punishable u/s 498-A, 302 read with Section 34 of the I.P.C. and accordingly convicted and sentenced the appellants while acquitting them of the offence punishable u/s 304-B read with Section 34 of the I.P.C.

Before we advert to the submissions advanced before us by Mr. Bedre, learned Counsel appearing on behalf of appellants, it would be useful to refer to the evidence of the prosecution witnesses. Prosecution has examined P.W. 1 Kisan, father of deceased Ashabai and P.W. 2 Sampat, who had acted as mediator in the settlement of the marriage. Both the witnesses are in respect of the alleged ill-treatment given to deceased Ashabai and also in respect of finding of the dead body in the well.

P.W. 1 Kisan, father of deceased Ashabai states that deceased Ashabai was his only daughter and she was married to original accused No. 3. Accused Nos. 1 and 2 are the parents of accused No. 3. After marriage, Ashabai went to reside with the accused and the accused treated her decently for a period of five months but after five months they started ill-treating her by beating her and were not providing her sufficient food. Accused No. 3 on the instigation of accused Nos. 1 and 2 was demanding Rs. 50,000/- for purchasing a jeep. Accused No. 3 was employed as a Driver and Ashabai had disclosed the demand as well as the ill-treatment to P.W. 1 Kisan whenever P.W. 1 Kisan had gone to the house of Ashabai for meeting her. P.W. 1 Kisan further states that he had brought his daughter Ashabai to his house for celebrating the festival of Sankrant which is on 14th January. Ashabai had informed him that she would not go back to the house of her husband as her husband had given her threats not to come back without Rs. 50,000/-. P.W. 1 Kisan therefore along with his brother-in-law and his brother and some other persons went to the house of accused and told the accused that he was unable to fulfil the demand of payment of the said amount because of his financial condition. Accused had assured him that Ashabai would be treated properly. P.W. 1 Kisan further states that P.W. 2 Sampat had come and enquired if Ashabai had come to the house of P.W. 1 Kisan. P.W. 2 Sampat was a resident of the same village in which the accused were residing and the house of P.W. 2 Sampat is at a distance of half a Km. from the house of the accused. On P.W. 2 Sampat questioning P.W. 1 Kisan whether Ashabai had come to his house, P.W. 1 Kisan started searching for his daughter. P.W. 1 Kisan therefore went to the house of the accused on the next day at about 5.00 p.m. and learnt that the dead body of his daughter Ashabai had been found in a well. On being so informed, he went towards the well. P.W. 1 Kisan further states that Ashabai knew how to swim and she used to swim in a tank. P.W. 1 Kisan further states that P.W. 2 Sampat had gone to the Police Station and thereafter the Police arrived at the spot of the incident and the dead body was removed from the well by means of a wooden cot. It was noticed that hands and feet of Ashabai were tied by means of the border of a Sari. P.W. 1 Kisan further states that Articles 5,6 and 7 are the pieces of the border of Sari with which the hands and legs of deceased Ashabai were tied. The dead body of deceased Ashabai was taken to Karjat Police Station and thereafter P.W. 1 Kisan lodged his complaint at Exh. 24.

In cross-examination he has admitted that Ashabai had a fair complexion and was able to do all the domestic work. P.W. 1 Kisan states that he had performed the marriage of Ashabai as per the custom and there were no bickerings in the marriage. He has further stated that P.W. 2 Sampat is the husband of sister-in-law of P.W. 1 Kisan and Kisan is on visiting terms with them. He has admitted that the accused is having landed property and the younger brother of accused No. 3 resides at Pune as he is in service. He has admitted not to have filed any complaint against the accused till the date of the incident. He has also admitted that P.W. 2 Sampat had informed him that even the accused were searching for deceased Ashabai. He has admitted that dead body of Ashabai as seen floating on the water and Sampat and the other villagers had assisted the police in drawing the dead body out of the well. He has admitted that both the hands and the feet were tied tightly by the pieces of Sari. He has further admitted that while the post mortem was going on Kisan along with his relative was sitting outside and was talking to his relatives about filing of the complaint. He has also admitted that he was angry when he saw the sudden death of his daughter and was saying that he would file the complaint against the accused. He has admitted that all of them had discussed and then he had lodged his complaint to the Police. He has then stated that he does not know if his son, Sampat and Deepak had entered the well to assist in removing the body of deceased Ashabai. He has denied the suggestion that the hands and legs of deceased were not tied and that the hands and legs were tied after the body was taken out of the well. He has also admitted that the well where the dead body of deceased Ashabai was found belongs to Sarjerao Suryawanshi and is adjacent to the village. He has admitted that his complaint was lodged before performing funeral of Ashabai was. He has also stated that he could not state the exact date when the accused had demanded Rs. 50,000/-. He has further admitted that marriage of Ashabai was a settled marriage and had been performed after Ashabai was approved by the appellants.

P.W. 1 Kisan stands fully corroborated by his report at Exh. 24 in respect of the hands and legs of Ashabai being tied by means of the border of the Sari. P.W. 1 Kisan also stands corroborated by the averments in his report at Exh. 24 in respect of the ill-treatment given to Ashabai and the demand of Rs. 50,000/- for purchasing a jeep.

P.W. 2 Sampat states that his wife and the wife of P.W. 1 Kisan are real sisters. He has stated that the appellants are residents of the same village in which he resides. He states that relative of his nephew had informed him that dead body of Ashabai was floating in the well of Sarjerao and therefore, he had gone to the well of Sarjerao and thereafter had lodged his report at Exh. 26. He has further stated that he was a mediator in the settlement of marriage of Ashabai and accused No. 3. Initially after marriage Ashabai was treated well. Thereafter the accused started ill-treating her and were demanding Rs. 50,000/-. Ashabai used to be beaten was also not provided with sufficient food. He states that accused No. 3 and one Pralhad had come to his house and had reported that Ashabai was missing and had enquired whether she had come to the house of P.W. 2 Sampat. P.W. 2 Sampat on being informed that Ashabai was missing started searching for Ashabai along with the accused for the entire night. He states that the accused had prevented him and others from going near the well of Sarjerao. He states that on the next day when he was searching for Ashabai he had gone to the village of P.W. 1 Kisan and had enquired from Kisan and thereafter had returned back to his village. On the next day i.e. on 27.2.2003, his nephew had informed him that dead body of Ashabai was seen floating in the well of Sarjerao. He accordingly lodged his complaint and the Police had arrived at the spot of the incident and had done the further formalities. He states that the ands and legs of Ashabai were tied tightly by means of a border of Sari. In cross-examination he has admitted that after being informed that dead body of Ashabai was floating in the well, he went to the well for verifying if the body was that of Ashabai. He states that he had seen that hands and legs of Ashabai were tied. He has then admitted that marriage of Ashabai was performed without any bickerings on either side. He has stated that he used to convey messages of Ashabai whenever Ashabai had told him that she was residing happily. He has admitted not to have filed any complaint against the accused. He has admitted that there was an electric motor fixed in the well but it was not in working order. He has denied that a pipe was fixed to the electric motor. He has admitted that there is no parapet wall to the said well. He has admitted not to have stated in his report at Exh. 26 about the ill-treatment or about the unlawful demand of Rs. 50,000/-. He has admitted to have telephoned Kisan and brother of deceased Ashabai. He has admitted to have seen the hands of deceased Ashabai being tied but he could not notice that the legs of deceased were tied when he peeped in the well before lodging his complaint. He then states that he could not say whether the hands and legs were tied. He states that he had identified deceased because of the Sari which was of light blue colour. He has admitted that he does not know if some one had entered the well when he had gone to inform the Police. He states that when he had reached the spot of the incident, the body was about to be taken in a jeep to Karjat hospital. In cross-examination following admission is obtained.

on the day when accused gave information about missing of Ashabai we started search but accused prevented from going to the well of Sarjerao. I got doubt against the accused but I did not make it open.

(Emphasis supplied)

He has admitted not to have intimated the police about the doubt which was nurtured by him at the time of filing his complaint as it did not occur to him at that time. He has denied the suggestion that the accused had never prevented him from going towards the well of Sarjerao. He has denied the suggestion that deceased Ashabai had accidentally fallen in the well and had died.

Post mortem of deceased Ashabai was performed by P.W. 6 Dr. Rajashri Pagaria. She has also stated that death of victim had occurred prior to 48 to 72 hours before the post mortem. In cross-examination she has admitted that she had not noticed ligature marks on the hands and legs of deceased Ashabai. She has explained this by saying that such type of ligature marks would not be prominent in case of tightening on the specific spots which have been mentioned in the post mortem notes. She has admitted that in case of drowning the victim is bound to struggle and move hands and legs. She has also admitted that due to struggle the knot can be loosened. She has denied the suggestion that because of struggle there is every possibility of an injury being caused at the place where knot is tied. She has denied the suggestion that after the body was removed from the well, the hands and legs were tied. In further cross-examination she has admitted that when the dead body was received by her the hands and the feet were tied. She has stated that the dead body was draped in blue coloured Sari.

Mr. Bedre, learned Counsel appearing on behalf of the appellants has urged before us that there is inordinate delay in lodging of the report as the F.I.R. came to be lodged by P.W. 1 Kisan at Exh. 24 after the funeral was performed. It is also urged before us that there is no satisfactory evidence in respect of the ill-treatment and particularly in respect of the demand for Rs. 50,000/-. It is also urged before us that P.W. 1 Kisan has admitted that the F.I.R. at Exh. 24 had been filed after due deliberation and therefore it smacks of concoction. It was then urged before us that the versions of the other witnesses particularly the panch witnesses and the Police officers in respect of taking of the dead body from the well is contradictory and therefore the possibility that the hands and feet of deceased might have been tied subsequently cannot be ruled out. It is also urged before us that since the deceased was a swimmer the deceased would not have drowned and could have grabbed the platform where the electric motor was fixed and she could have come out of the well by climbing the steps. It is then urged before us that there is no evidence of participation of the crime. There is no evidence that the hands and legs were tied by any of the accused. It was lastly urged before us that the possibility of the deceased having accidentally fallen in the well cannot be ruled out particularly in view of the fact that the well did not have a platform and deceased could have accidentally fallen in the well while going to answer the call of nature. Mr. Borade, learned A.P.P. appearing on behalf of the respondent State has supported the judgment of conviction and has urged for dismissal of the appeal.

P.W. 5 Dada, a witness to the inquest panchanama has admitted in the cross-examination that many villagers from different communities had gathered near the well and some persons had entered the well in assisting the placing of the dead body on the wooden cot. He further denies the suggestion given to him on behalf of the accused that P.W. 2 Sampat and other persons had entered the well and had tied the hands and legs of deceased Ashabai and thereafter the body was drawn out of the well. Relying on this admission which is made on behalf of P.W. 5 Dada, it was urged before us that this evidence is sharply in contrast to the evidence of the Police Officer who had taken out the dead body from the well. According to us, not much importance can be placed on the stray admission which is given by P.W. 5 Dada. Even if it is admitted that some persons had entered in the well in order to place the dead body on the wooden cot which had been lowered in the well that by itself would not be a ground for suspecting that the hands and legs of deceased were tied at that point of time. In any event, P.W. 5 Dada who for all intends and purposes was a witness favouring the accused, has stoutly denied the suggestion of the accused that Sampat and other relatives had entered the well and had tied the hands and legs of deceased Ashabai before the body was drawn out of the well. Absence of ligature marks has been explained by the Medical Officer. According to the Medical Officer, unless the hands and legs were tied very tightly the ligature marks would not be prominent. She further stated that a person who was drowning was bound to struggle and in such struggle there is every possibility of bonds being loosened. If the bond had loosened slightly because of struggle, according to us, absence of ligature marks would be explained. Deceased, in any event, had died immediately when she was thrown in the well and on death the blood circulation would stop and that would also to a large extent explain the absence of ligature marks. In any event, the absence of ligature marks would not in any manner negative the case of the prosecution that the hands and legs of the deceased had been tied and thereafter she was thrown in the well. We are fortified in our view because there is no evidence on record to indicate that the hands and legs of the deceased had been tied before the body was taken out of the well and this has been done in order to falsely implicate the accused. Another circumstance which speaks volumes about the involvement of the accused in the crime is an admission which has gone unchallenged in the evidence of P.W. 2 Sampat to the effect that the accused had prevented him and others from going towards the well of Sarjerao where the dead body of deceased Ashabai was subsequently discovered. This admission in the examination-in-chief is further fortified and cemented in the cross-examination. There is no cross-examination worth the name to doubt the veracity of the said statement. Absence of any averment in the report lodged at Exh. 26 by Sampat in respect of the tieing of the hands and legs of the deceased is explained by Sampat that he had not seen the hands and legs of the deceased being tied as the body was lying on its face on water surface. Obviously, in that condition for a person peeping from the top of the well tieing of the hands and legs would not be visible. Accidental fall in the well i.e. accidental death is completely ruled out. Deceased Ashabai knew how to swim and this statement of P.W. 1 Kisan has virtually gone unchallenged in the cross-examination. If deceased Ashabai knew how to swim, we find it inexplicable that if her hands and legs had not been tied and she had fallen in the well that she would drown and not come out of the well by climbing the steps which were provided in the well. At least deceased Ashabai could have cried for help which would have attracted the attention of others. Since deceased Ashabai had drowned in the well and the dead body was found after two to three days with the hands and legs tied, this rules out accidental fall in the well though the well did not have a parapet wall. Prosecution has also relied upon the memorandum at Exh. 40 and the eventual discovery of Sari and its seizure at Exh. 41 by original accused No. 2. The border of the Sari with which hands and legs of deceased Ashabai were tied had been torn from the Sari which was produced by accused No. 2. Even if the memorandum is disbelieved, the circumstances of deceased having drowned in the well with her hands and legs tied by means of pieces of Sari is a strong circumstance against the accused. The explanation given by the accused about accidental fall is obviously a false explanation. The hands and legs of deceased could not have been tied by accused No. 3 alone. Accused Nos. 1, 2 and 3 were all residing in the house. P.W. 1 Kisan and P.W. 2 Sampat have clearly established that deceased was ill-treated on account of a demand made for Rs. 50,000/- by accused No. 3 for purchasing a jeep. If that be the case, the involvement of accused Nos. 1, 2 and 3 is clearly spelt out. The circumstances established by the prosecution therefore clearly forge a chain which is so complete as rules out any hypothesis of the innocence of the accused and unerringly point to the guilt of the accused. Ashabai could not have been carried by accused No. 3 alone from his house to the well without assistance of accused Nos. 1 and 2. The hands and legs of Ashabai also could not have been tied by accused No. 3 alone without the assistance of accused Nos. 1 and 2. Ashabai is bound to have resisted and is bound to have raised cries if she had noticed that her hands and legs were being tied and in such circumstances, without the assistance of accused Nos. 1 and 2, the cries and the struggle of Ashabai could not have been muffled. In such circumstances, therefore, according to us, the involvement of the accused Nos. 1 to 3 is clearly made out and the circumstances unerringly point to the guilt of the accused. The inference of guilt drawn on the basis of these circumstances is further reassured by a false explanation which is given by the accused.

After giving our anxious consideration to the submissions advanced before us by the learned Counsel for the parties, according to us, prosecution has been able to establish the offence against the appellants beyond reasonable doubt. The appeal therefore which is sans merit is dismissed confirming the conviction and sentence. In the result, Criminal Appeal No. 238 of 2005 is dismissed. Six weeks time is granted to accused No. 2 who is on bail to surrender. Bail bonds of accused No. 2 stand cancelled.