Bombay High Court
Prakash Shantilal Warma vs The State Of Mah And Ors on 14 August, 2015
Bench: S.S. Shinde
(1) cria437.11A
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.437 OF 2011
Ramdeo s/o Pannalal Kadel,
Age : 36 years, Occ. Business,
R/o Sonai, Taluka Newasa,
District : Ahmednagar ..APPELLANT
VERSUS
The State of Maharashtra
ig ..RESPONDENT
Mr N.S. Ghanekar & Mr R.A. Jaiswal, Advocates for appellant;
Mr Shirish Gupte, Senior Advocate i/by and with Mr S.G. Ladda, Special
Counsel and Mr S.G. Karlekar, Addl. Public Prosecutor for respondent
WITH
CRIMINAL APPEAL NO.442 OF 2011
Prakash Shantilal Warma,
Age : 36 years, Occ. Business,
R/o Dist. Aurangabad ..APPELLANT
(Orig. Complainant)
VERSUS
1. The State of Maharashtra
2. Ramdeo s/o Pannalal Kadel,
Age : 33 years, Occ. Business,
R/o Sonai, Tq. Newasa,
Dist. Ahmednagar
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(2) cria437.11A
3. Saraswati Pannalal Kadel,
Age : 60 years, Occ. Household,
R/o Sonai, Tq. Newasa,
Dist. Ahmednagar
4. Laxmikant Pannalal Kadel,
Age : 30 years, Occ. Nil,
R/o Sonai, Tq. Newasa,
Dist. Ahmednagar
5. Indira Rameshwar Varma,
Age : 45 years, Occ. Household,
R/o Dhawani Mohalla,
Aurangabad ..RESPONDENT NOS.2 TO 5
(Ori. Accused Nos.1 to 5)
Mr Hemantkumar F. Pawar, Advocate for appellant;
Mr Shirish Gupte, Senior Advocate, i/by and with Mr S.G. Ladda and Mr
S.G. Karlekar, Addl. Public Prosecutor for respondent no.1;
Mr N.S. Ghanekar and Mr R.A. Jaiswal, Advocates for respondents no.3 to
5
WITH
CRIMINAL APPEAL NO.85 OF 2012
The State of Maharashtra,
Through Police Inspector,
Police Station, Sonai,
Taluka Newasa, District
Ahmednagar ..APPLICANT/APPELLANT
(Ori. Complainant)
VERSUS
1. Saraswati Pannalal Kadel,
Age : 63 years,
2. Laxmikant Pannalal Kadel,
Age : 33 years,
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(3) cria437.11A
Both R/o Sonai, Taluka Newasa,
District Ahmednagar
3. Indira Rameshwar Varma,
Age : Major, R/o Dhawani Mohalla,
Aurangabad ..RESPONDENTS
(Ori. Accused Nos.2 to 4)
Mr Shirish Gupte, Senior Advocate, i/by and with Mr S.G. Ladda, Special
Counsel and Mr S.G. Karlekar, Addl. Public Prosecutor for appellant
CORAM : S.S. SHINDE AND
N.W. SAMBRE, J.
ig (Date of reserving the
judgment : 19th June, 2015
Date of pronouncing the
judgment : 14th August, 2015)
JUDGMENT (PER N.W. SAMBRE, J.)
Since all these appeals arise out of the judgment and order dated
27th July, 2011, rendered by Additional Sessions Judge, Shrirampur, in
Sessions Case No.36 of 2008, they are heard together and are being
decided by this common judgment.
2. So far as Criminal Appeal No.437 of 2011 is concerned, the same is
preferred by appellant/original accused no.1 Ramdeo, who is convicted
vide section 235 (1) of the Code of Criminal Procedure, for an offence
punishable under section 302 of the Indian Penal Code and sentenced to
suffer imprisonment for life and to pay fine of Rs.25,000/-, in default to
(4) cria437.11A
suffer simple imprisonment for six months.
3. Criminal Appeal No.85 of 2012 is preferred by the State of
Maharashtra, questioning the acquittal of accused no.1 Ramdeo for an
offence punishable under sections 498-A read with sec. 34 and 120-B of
the Indian Penal Code; acquittal of accused nos.2 and 4 Saraswati and
Indira, respectively, for an offence punishable under sections 302, 498-A
read with sec. 34 of the Indian Penal Code and also the acquittal of
accused no.3 Laxmikant.
4. So far as Criminal Appeal No.442 of 2011 is concerned, the same is
preferred by original complainant Prakash Shantilal Varma against the
acquittal of the accused.
5. Facts, as are necessary for decision of these appeals, are as
under :-
Accused no.1 Ramdeo married to Chandarani, who is resident of
Sonai. Before marriage, Chandarani was residing along with her parents,
brothers and sister at Aurangabad. The marriage took place on 4th
December, 1998 at Aurangabad. After the marriage, deceased Chandarani
started residing with the accused persons at Sonai. Accused no.2
Saraswatibai is mother-in-law; accused no.3 Laxmikant is brother-in-law of
(5) cria437.11A
deceased and accused no.4 is sister-in-law of Chandarani and wife of one
Rameshwar Warma.
6. On 17th March, 2008, Assistant Police Inspector P.W. 13 Sanjay
Hibare, who was present on duty at Sonai police station, received an
intimation at about 5.05 p.m. about the accidental death of Chandarani
from one Kiran Chandel, her cousin brother-in-law. On the basis of the
said intimation, an entry in the register of accidental deaths as A.D. No.8
of 2008 was made. Pursuant to the said intimation, P.W.13 A.P.I. Sanjay
Hibare visited the spot of the incident, which was on the second floor of
the house of accused Ramdeo and saw that Chandarani was burnt and
was dead. P.W.13 Sanjay, accordingly, called three panchas, a female and
two male, namely; Dwarka Baburao Kumawat, Sudhakar Nanasaheb
Darandale and Anil Trimbak Darandale and upon examining the dead
body, drew inquest panchnama (Exh.63), which was commenced at 5.15
pm. and concluded at 6.00 pm.
7. After the inquest panchnama, the dead body was handed over in
the custody of Police Constable Pawar for sending the same by
ambulance to Newasa Rural Hospital for post mortem examination.
8. Subsequent thereto, on the same day, P.W.13 Sanjay prepared spot
panchnama (Exh.113) in the presence of two panchas, namely, Kiransing
(6) cria437.11A
Chandel and Ranjit Jadhav, resident of Sonai. The spot panchnama was
commenced at 6.05 p.m. and concluded at 7.00 p.m. At the spot, he had
noticed articles, namely, Five Liter kerosene container of green colour
having 1-1/2 Ltrs. Kerosene, the cap of which was lying aside, burnt match
box, burnt match sticks and one burnt piece on the spot of the incident,
which were seized, sealed and wrapped in a paper by putting appropriate
signatures and seals thereon. He then noticed that the bedroom in which
Chandarani died had a attached bath-room, having a fiber door, which
was not burnt. He had then taken photographs of the spot of the incident
through a photographer. The said photographs are at Exh.115. He
claimed that he prepared panchnama as per the scene of the incident. He
then forwarded copy of inquest panchnama, copy of inquest form to the
Rural Hospital, Newasa along with Police Constable Pawar.
9. The post mortem on the dead body of Chandarani was not
performed at Newasa and same was sent to Ghati Hospital, Aurangabad
along with Police Constable Pawar as there was no arrangement or facility
to conduct autopsy at night.
10. Upon demand, custody of the minor son of Chandarani, namely,
Ganesh was given to Prakash Warma. P.W.13 Sanjay then claimed that
on 18th March, 2008, he proceeded from Sonai to Aurangabad at 8.30 a.m.
and reached Aurangabad at 10.00 a.m. He further claimed that the
(7) cria437.11A
autopsy on the dead body was performed in Government Hospital at
Aurangabad (GHATI).
11. Having reached at GHATI Hospital, Aurangabad, the Doctors had
pointed out the Investigating Officer that there were injuries on the dead
body but those were not reflected in the inquest panchnama and as such,
he was asked to prepare the inquest panchnama, for which he refused,
as he claimed that he had no authority to draw second inquest.
In view of the above fact, the Doctors have given letter to
Magistrate at Exh.18 for carrying out another inquest panchnama and
without waiting for the Magistrate to carry out the inquest panchnama, the
Doctors have proceeded to perform the post mortem. It is noted in the
post mortem report that there are injuries on forearm, nose and right
shoulder, which are not stated in the inquest panchnama so prepared. It
is claimed that the Doctor's letter Exh.81, calling Executive Magistrate,
was handed over to Police Constable Pawar, however, it was not handed
over to Magistrate by Police Constable Pawar. After performing the post
mortem, custody of the dead body was given as per Exh.137 to
complainant Prakash.
12. After completing the post mortem, the Doctors who had conducted
autopsy, had come to Sonai along with the Investigating Officer to inspect
(8) cria437.11A
the spot of the incident. Another search and seizure panchnama was
drawn at Exh.74 on 18 th March, 2008, in the presence of Kiran Chandel,
who was resident of Sonai and cousin brother-in-law of deceased by I.O.
P.W.13 Sanjay.
13. In the said panchnama (Exh.74), drawn on 18 th March, 2008, it was
noted that the original colour of the wall was pink, so also of the door
frame and he noticed two latch holders lying on the floor, which had gone
unnoticed while drawing earlier panchnama Exh.113 on 17 th March, 2008.
14. Apart from above, it was brought on record that key of main door of
the house of the accused was with Kiran Chandel. Upon instructions of
the said Investigating Officer, Police Constable Pawar reduced in writing
the complaint Exh.136 after the post mortem in the hospital, resulting into
registration of C.R. No.236 of 2008, for offence punishable under sections
302, 498-A, read with sec. 34 of the Indian Penal Code. Pursuant to the
complaint, accused no.1 Ramdeo was arrested on 18 th March, 2008, vide
panchnama Exh.206, when it was noticed that there were no injuries on
the person of accused Ramdeo.
15. The Investigating Officer then proceeded to investigate the matter
and had asked the Revenue Circle Officer to prepare sketch of spot of the
incident Exh.67 and proceeded to record statements of Kiran Chandel and
(9) cria437.11A
Ranjit Jadhav.
16. It is further noted that the articles which were seized from the spot
of the incident, were sent for chemical analysis vide letter Exh.212. The
in-coming and out-going calls of the phone at the house and the shop of
accused no.1 were called from the B.S.N.L. office, which are at Exhs.220
and 221.
17.
The investigation in the matter was, then, handed over to the Local
Crime Branch on 16th May, 2008, as per the directions of Superintendent
of Police, pursuant to the complaint against Investigating Officer P.W.13
Hibare. The Local Crime Branch then recorded supplementary statements
of the witnesses, and accused no.3 Laxmikant came to be arrested on 9 th
June, 2008 and accused no.2 Saraswatibai on 5 th July, 2008.
18. After completion of investigation, the charge-sheet came to be
submitted to the Court of Judicial Magistrate First Class, Newasa, against
accused nos.1 to 4, for offences punishable under sections 302, 498-A
read with sec. 34 of the Indian Penal Code. Learned Magistrate thereafter
committed the case to the Sessions Court, Shrirampur.
19. The charge was framed at Exh.51 against the accused persons.
They abjured the guilt and claimed to be tried. The prosecution examined
(10) cria437.11A
in all thirteen witnesses, in order to prove the guilt of the accused persons.
20. The complainant Prakash alias Deva Shantilal Varma was
examined as P.W.9 at Exh.133, Ganesh, the minor son of deceased
Chndarani and accused no.1 was examined as P.W.8 at Exh.128. Sunil
Soni, brother-in-law of the complainant Prakash was examined as P.W.11
at Exh.179. Complainant's friend Sanjay Saraf was examined as P.W.12
at Exh.196, Suresh Varma as P.W.10 at Exh.176. The panch on the
inquest, namely, Dwarkabai was examined as P.W.1 at Exh.62 and
witness on the spot panchnama Ranjit was examined as P.W.7 at Exh.112.
Omprakash Varma, another witness on the spot panchnama dated 18 th
March, 2008 was examined as P.W.3 at Exh.73.
21. Gorakshanath Suryabhan Shinde, P.W.5, was then a Branch
Manager of Nagar Urban Co-operative Bank, Branch at Sonai, at Exh.87.
P.W.6 Shamsundar Shankar Khamkar, examined at Exh.105 was also at
the relevant time, a Branch Manager of Vyankatesh Patsanstha. P.W.4
Dr. Ramkrishna Govindrao Bhusale, the Medical Officer, is examined at
Exh.76. The evidence of Investigating Officer P.W.13 A.P.I. Hibare is at
Exh.200.
22. The accused, in their defence have examined D.W.1 Sudhakar
Darandale, a Pharmacist who is having medical shop opposite to the shop
(11) cria437.11A
of accused nos.1 and 4, at Exh.232, Silver Artisan Rajendra Lolge as
D.W.2 at Exh.234, who works for the accused persons and D.W.3 Sangita
Kadel at Exh.235, who is wife of accused no.3 Laxmikant.
23. Upon analyzing the evidence on record, the Trial Court has
convicted accused no.1, vide section 235 (1) of the Code of Criminal
Procedure for an offence punishable under section 302 of the Indian Penal
Code and sentenced him to suffer imprisonment for life and to pay fine of
Rs.25,000/-, in default to suffer simple imprisonment for six months. The
Trial Court, however, acquitted him of the offence punishable under
sections 498-A read with sec. 34 and 120-B of the Indian Penal Code.
Accused no.2 Saraswati and accused no.4 Indira both were acquitted of
the offences punishable under sections 302, 498-A read with sec. 34 of
the Indian Penal Code along with accused no.3 Laxmikant. Thus, the
present appeals.
24. Mr N.S. Ghanekar, learned Counsel appearing on behalf of the
appellant/accused has urged that the case in question is based on the
circumstantial evidence and as there is no complete chain pointing out
finger of guilt towards the accused persons, they are entitled for acquittal.
According to the learned Counsel, the prosecution has failed to establish
and prove the theory of the demand of dowry and homicidal death of
Chandarani. He would further urge that accused nos.1 to 3, at the relevant
(12) cria437.11A
time, were in the shop and as such, their direct involvement in the
commission of the offence could not be established. According to Mr
Ghanekar, in the evidence brought on record, particularly in the matter of
investigation carried out by P.W.13 Sanjay Hibare, nothing incriminating
against to the accused could be noticed, connecting them to the
commission of the offence.
25. According to Mr Ghanekar, evidence of child witness P.W.8 Ganesh
was rightly held worth to be discarded by the Trial Court. The learned
Counsel appearing on behalf of the appellant/accused has relied upon the
judgment of the Apex Court in the matter of Dattu Ramrao Sakhare vs.
State of Maharashtra, reported in (1997) 5 SCC 341, so as to canvass
that the evidence of child witness, i.e. P.W.8 Ganesh in the present case
deserves rejection as he had witnessed the incident when he was of the
age of 3-1/2 years and when he was examined, he was of the age of 6
years. He was unable and incapable to understand the sanctity of oath
and repercussion of statement, which he had made before the Court, and
consequence thereof. According to the learned Counsel, if the evidence
of the said witness is analyzed minutely, the same is not worth
consideration under section 118 of the Evidence Act, and as such, has
sought to draw support from the following observations in paragraph 4 of
the said judgment :-
(13) cria437.11A
" 6. The entire prosecution case rested upon the
evidence of Sarubai (P.W.2) a child witness aged about
10 years. It is, therefore, necessary to find out as to
whether her evidence is corroborated from other
evidence on record. A child witness if found competent
to depose to the facts and reliable one such evidence
could be the basis of conviction. In other words even in
the absence of oath the evidence of a child witness can
be considered under Section 118 of the Evidence Act
provided that such witness is able to understand the
questions and able to give rational answers thereof.
The evidence of a child witness and credibility thereof
would depend upon the circumstances of each case.
The only precaution which the court should bear in
mind while assessing the evidence of a child witness is
that the witness must be reliable one and his/her
demeanour must be like any other competent witness
and there is no likelihood of being tutored. There is no
rule or practice that in every case the evidence of such
a witness be corroborated before a conviction can be
allowed to stand but, however as a rule of prudence
the court always finds it desirable to have the
corroboration to such evidence from other dependable
evidence on record. In the light of this well settled
principle we may proceed to consider the evidence of
Sarubai (P.W. 2)."
26. So far as oath administered to the child witness is concerned,
learned Counsel appearing on behalf of the appellant/accused has relied
on the judgment of this Court in the matter of Rameshwar s/o Kalyan
(14) cria437.11A
Singh vs. The State of Rajasthan, reported in AIR 1952 SC 54 (1).
27. Learned Counsel appearing on behalf of the appellant/accused
would further urge that the evidence of P.W.7 Ranjit, who noticed the
presence of Ramdeo after said witness came to the spot, was incorrectly
appreciated while concluding presence of accused no.1 at the spot, at the
time of the incident. According to Mr Ghanekar, the call details of 15 th
March were called for, whereas call details of 17 th March were not
complete. According to him, so as to establish the call details, as also
communications Exhs.220 and 221, no employee/officer from the
Telephone Department was examined. He would urge that vide Exh.220
the call details of only six numbers are noted, whereas the call details of
two numbers are noted vide Exh.221. According to him, the subsequent
investigation was carried out by Local Crime Branch, through P.S.I.
Deshmukh and the said Investigating Officer was also not examined in the
present case. He would urge that the evidence of the complainant
Prakash @ Deva is required to be discarded as the same is full of
omissions and contradictions. He would also urge that the Investigating
Officer P.W.13 Hibare has not inspected the door from outside noticing the
damage to the door and the latch and latch holders coming out of the
same. According to him, the spot panchnama was also drawn in a
negligent manner. The admissions as are given by the child witness
Ganesh, are required to be given appropriate weightage. He would
further urge that the Expert's evidence i.e. of the Doctor in the present
(15) cria437.11A
case so as to conclude that death of Chandarani was homicidal, was also
required to be discarded as the same is based on the death certificate
which was issued after four months and said evidence is not sufficient to
emphatically conclude that Chandarani died of homicidal death. He would
urge that the injuries which were found on the body of the deceased were
old and fresh injuries. He would also question the validity of the post
mortem report, as the Doctors were of the opinion that the fresh inquest
was required to be drawn and as such, had summoned the Executive
Magistrate vide Exh.81 and without waiting for the Magistrate, had
performed the post mortem. He would also urge that the injuries as were
sustained by deceased Chandarani were because of her movement after
setting on fire and same can be concluded from the post mortem report
and the medical evidence.
28. While countering the above referred submissions, Mr Gupte,
learned Senior Counsel, appointed as Special Public Prosecutor along
with Special Public Prosecutor Mr S.G. Ladda, would urge that the
presence of the child witness was very much established and he has
corroborated assault, burns and the presence of accused no.1 at the
scene of the offence. According to him, the plea of alibi is a positive plea,
which was required to be raised at first instance. The said stand was not
reflected in the bail application of the accused and rather, the presence of
accused no.1 Ramdeo was established in the evidence of P.W.7 Jadhav.
(16) cria437.11A
He would also urge that the evidence of child witness Ganesh
corroborates with the medical evidence. According to him, the
panchnama of the scene of offence speaks a volume about the violence
prior to deceased Chandarani was set on fire. He would further urge that
as the first inquest was noticed to be manufactured, the Doctors had
asked for another inquest. According to him, the death of Chandarani is
purely homicidal and the theory of the suicide can be ruled out from the
point of view of presence of kerosene Can, match stick, burns on the
upper part of the body, burns on the soles of the body. According to him, it
is a clear case of setting Chandarani on fire. He would urge that in view
of section 106 of the Evidence Act, the fact about death was within
special knowledge of the accused, to which they owe an explanation
about the death. According to him, as there were no efforts to douse the
flames, no remorse on the face of accused nos.1 to 3 after the incident,
are the incriminating circumstances against the accused persons.
According to him, the Barmuda that was noticed in the bathroom attached
to the bed-room where the incident has taken place, had smell of
kerosene and the injuries on the body of deceased Chandarani were
noticed to be ante mortem. According to him, the appeal preferred by the
accused, is liable to be dismissed and the conviction of accused no.1 is
required to be upheld. He would also urge that the other accused are
liable for conviction for the offences with which they were charged and are
acquitted.
(17) cria437.11A
29. Mr Pawar, learned Counsel appearing on behalf of the original
complainant Prakash, has adopted the arguments advanced by the
learned Special Public Prosecutor and would thus urge that all the
accused persons are liable to be convicted for offences with which they
were charged and, therefore, prayed for dismissal of the appeal of the
accused and for allowing the appeal filed by the original complainant.
30.
At the outset, it is required to be noted that, from the record it
appears that deceased Chandarani, out of the incident in question, has
received 100% burn injuries and the cause of death as cited appears to be
shock due to 100% burns. The post mortem report Exh.77 is dated 18 th
March, 2008.
31. The post mortem examination on the dead body of deceased
Chandarani was performed by P.W. 4 Dr. Ramkrishna Bhusale
accompanied by Dr. S.V. Kuchewar, Dr. K.B. Muglimath and Dr. V.S.
Kalokhe. P.W.4 Dr. Bhusale noticed the following external injuries :-
1) Two contused abrasion over left side of forehead of size 4 x 3
c.m. And 3 x 3 c.m. Colour of injury was dark reddish. On incision,
underlying tissue shows blood infiltration. The sign of blood
infiltration shows that it was caused during the life. The injury no.1
was fresh at the time of death.
(18) cria437.11A
2) Abrasion over bridge of nose vertically placed of size 3 x 2 c.m. The
colour of the injury was dark reddish.
3) Evidence of heat rupture over right anterior medial aspect of upper
1/3rd of thigh horizontally placed, exposing thigh muscles, nerves at
vessels intact at the base, margins are pale yellowish.
4)
Evidence of heat rupture over left anterio-medial aspect of upper
1/3 of thigh, obliquely placed, exposing thigh muscles nerves at
vessels intact at the base margins are pale yellowish.
32. P.W.4 Dr. Bhusale had noticed that injury nos.(3) and (4) were post
mortem injuries and were caused due to extensive burning of the body at
the places mentioned in injury nos.3 and 4. Injury nos.3 and 4 show that
the said injuries were caused by continuing burning even after death also.
P.W.4 Dr. Bhusale had noticed that the dead body was 100% burnt. The
injuries were superficial to deep burn injuries. He noticed deep burn over
face neck, chest, abdomen and anterior aspect of both thigh, rest of the
burns were superficial in nature. There was evidence of blisters over
dorsum of both hands and palms. There was evidence of pealing of shin,
over both arms, forearms and both foot with evidence of reddish
discoloration over soles. There was evidence of totally burnt hairs over
(19) cria437.11A
center of head and behind both ears with singeing of peripheral scalp
hairs. There was evidence of kerosene smell perceived, which showed
that the injuries were anti mortem.
33. On internal examination, P.W.4 Dr. Bhusale noticed that there was
no evidence of injury under the scalp but there was evidence of linear
undisplaced fracture over right middle cranial fossae over fegmentum
plate, obliquely placed 2.5 c.m. of size. There was evidence of linear
undisplaced fracture over fegmentum plate, obliquely placed of size 3 c.m.
Both the fractures were having irregular margins with blood infiltration and
were caused during the life. On examination of the brain, he found that
the meninges were intact and congested, brain matter congest and
edematous on cut section, there was evidence of petechial haemorrhage
over white matter. On internal examination of Thorax, he found no
abnormality in walls, ribs, cartilages and pleura. In Larynx, Trachea and
Bronchi mucosa was congested, there was evidence of blackish soot
particles and blood smeated over Trachea and bronchi. Both lungs were
congested and oedematous on cut section dark reddish blood oozes out
from the cut surface. He did not find any abnormality in the heart and
large vessels. He noticed that oesophagus mucosa was congested and
no soot particles were found. Stomach was empty and no abnormal
smells perceived, mucosa was congested, as also all other organs. The
post mortem report is at Exh.77.
(20) cria437.11A
A note of visit to scene of the incident was prepared by the team of
Doctors, who visited the spot on 18 th March, 2008 and noted the evidence
of burnt clothes, black coloured ornament beads and black soot particles
lying over floor with evidence of blood stains and water over the floor. The
broken door of the show case, right corner of bed mattress was burnt,
burn marks at the base of dressing table, all four walls of the bed room
with roof showing blackening due to soot. It was also noticed that the door
of entrance in the room shows black soot particles and broken kadi (latch)
with finger prints over door near latch and other places. The blackening
due to soot particles present over roof and walls.
34. The viscera was sent to the Forensic Science Laboratory, wherein
no poison was noticed. Pursuant to Exh.79, partly burnt hair, partly burnt
pinkish and yellowish green coloured pieces of cloth and partly burnt
tissue like material adhered to it piece of cloth, was sent for analysis and
in the result, the residues of kerosene were not detected on partly burnt
hair and partly burnt pieces of cloth, however, kerosene residues were
detected on partly burnt pinkish and yellowish green coloured pieces of
cloth. The Doctors opined final cause of death on 17 th July, 2008 and
certified as under :-
"Shock due to 100% burn with fracture bilateral middle cranial
fossae."
(21) cria437.11A
Below that, is the endorsement indicating the manner of death as
"evidence of violence - homicidal death".
35. In the background of above, this Court is required to analyze,
whether the death of Chandarani was homicidal or suicidal. The inquest
was proved by considering the evidence of P.W. 1 Dwarka Kumavat, who
though one of the witnesses to the inquest at Exh.63, who has not
deposed about noticing any injuries on the face of deceased.
36. P.W.2 Ashok Kolhe, who was examined at Exh.66 in support of
drawing the spot map, has deposed about the call given to him by the
Investigating Officer for preparing the map of the occurrence. The said
witness has deposed that he has prepared the map at Exh.67 of the room
in question where the incident has occurred. He further deposed that the
room of which the map was drawn, was located on the third floor and
there was a window in the floor, so also on roof and was having only one
door for entry in the room. He noted that the area of the room is 15' x 20'
and speaks of having zaroka on the floor fitted with steel iron net .
37. The prosecution then has proceeded to examine P.W.3 Omprakash
Varma at Exh.73, who claimed to be a witness to the second spot
panchnama drawn on 18th March, 2008. He has proved the spot
panchnama at Exh.74. In cross-examination, this witness has stated that
(22) cria437.11A
certain articles, such as burnt pieces of cloth, wall clock, pink coloured
latch holder and yellow coloured latch holder were noticed. He speaks of
soot particles in the room, so also the toilet.
38. P.W.4 Dr. Ramkrishna Bhusale, who is examined at Exh.76, has
deposed in support of the post mortem report and cause of death. He has
stated that the injuries mentioned in the post mortem report were caused
to deceased Chandarani and in view of the evidence of blisters over
dorsum of both hands and palms and evidence of pealing of shin, over
both arms, forearms and both foot with evidence of reddish discoloration
over soles and 100% burnt hairs over centre of head, concluded that the
injuries were ante mortem. He also noticed linear undisplaced fracture
over right middle cranial fossae over fegmentum plate, obliquely placed
2.5 c.m. of size, however, has not noticed any injury under the scalp. Upon
conducting internal examination of thorax, he noted no abnormality,
however, noticed blackish soot particles and blood smeated over Trachea
and bronchi. According to him, the probable cause of death of Chandarani
was shock due to 100% burns with fracture bilateral middle cranial fossae.
After the post mortem, the said witness visited the spot of the incident and
noticed soot particles on the walls of the bed room, so also on the roof.
He also noticed broken latch. According to him, the visit to the spot was in
the background of noticing blunt trauma and fracture over the head and so
as to find out the cause of the same. He also deposed that the manner of
(23) cria437.11A
death is apparent from evidence of violence and homicidal death and has
proved death certificate at Exh.80. He then deposed that the fractures
which were caused were unlikely due to fall in the present case, however,
opined that the two fractures as are noticed, can be caused due to
extensive burn injuries on the scalp. He further stated that at the fracture
he has noticed reddish infiltration, which according to him, might have
been caused by trauma. He then added that the fractures are resulted
due to physical trauma. In cross-examination, he has admitted that the
general injuries to the head can be caused due to fall, however, not in the
present case. He then admitted that the cause of death of Chandarani is
of extensive burn injuries. He also admitted the proposition that the skull
bones can be fractured due to extensive hit to the skull. He also admitted
that if the head is exposed to severe hit, it may cause fracture causing
false suspicion of violence, which is called as heat hematoma. He also
deposed that there is a possibility that skull may get fractured prior to the
death or after the death. Then importantly, in his cross-examination, at
paragraphs 23, 24, 25, 26 and 27, he has deposed as under :-
"23. I agree with the proposition that the skull bone may
shown heat fractures which may occur either due to (1)
drying and desiccation (cracking and outward curving of the
outer table) or may be due to (2) bursting involving whole
thickness of skull or sutural fractures (separation) due to
increased intra-cranial pressure, from production of gas due
to the effect of heat.
(24) cria437.11A
24. I agree with the proposition that causes of death in
case of burn injuries may have additional circumstance of
mechanical injuries as a result of all. I agree with the
proposition that if fractures are caused due to heat then
there will be external signs of scalp haematoma. In this
case the two fractures are not coup fractures. That means
there is no direct evidence of coup injury. These injuries are
possible if a head came in contact with some object. In
general proposition if the head's frontal portion comes in
contact with any object linear fractures as observed in this
case may be caused. An erect person may collapse and fall
to the ground due to convulsion, fainting, giddiness,
inhalation of smoke and poisonous gasses. When such
person falls on an object injury may cause on his persons at
the site of impact. If the person's nose comes in contact
with an object then the injury will be on his nose. I agree
with the proposition that linear fractures observed on the
bilateral site may be caused because of indirect injury on the
chin or forehead or even because of fall on feet or buttock.
The reason behind this injury is transmission of waives and
vibrations.
25. In this case I had not sent sample of blood for
estimation of carboxyhaemoglodil level. I agree with the
proposition that inhalation of carbonmonaxide or gas caused
severe, muscular incordination, weakness and confusion
due to which the victim is unable to escape and dies of
asphyxia the body will burn after death. There were signs of
inhalation of gasses and soot particles was seen inside the
mouth and internal cavity. If a person is on fire due to pains
(25) cria437.11A
he may run here and there. A person when runs here and
there and comes in a contact with an external object by
force he may sustain external injury. Depending upon the
force internal injury may be caused. I agree with the
proposition that if a person fall on ground by force may
produce abrasions, contusions or laceration of protruding
part of face, forehead, nose, chin, cheeks. I did not find any
injuries to the ear, pinna or around it or to its underlying
tissues. I agree with the proposition that in general, an
injury sustained by a fall is at the level of the brim of the hat
while an injury due to blows is above this level. I agree with
the proposition that linear fractures follow the path of least
resistance and are deflected from the thicker and more
resistant bony portions of the skull.
26. A petechial haemorrhage over the white matter of the
brain may be caused by asphyxia. In case of burn due to
suffocation of inhalation of gasses person dies because of
asphyxia. In such case brain and its meninges are found
congested. In case of asphyxia there are signs of oozing of
blood from mouth and nose but not from ear. The oozing of
blood from ear is due to the fracture of middle cranial fossa.
27. I agree with the proposition that if the heat applies is
very great skin contract at heat ruptures occur before or
after death. I agree with the proposition that the outer tables
of the exposed cranial may show a network of fine criss
crossing heat fractures. Witness add that if there is
extensive heat. If there is extensive heat then fracture may
cross sutured lines. I agree that in fractures due to heat are
usually seen on either side of the skull above the temples.
(26) cria437.11A
Because of heat middle cranial fossa gets fracture as they
are thin and fragile as compared to other bones of skull. "
39. P.W.4 Dr. Bhusale then deposed that after the inspection of the
spot, Investigating Officer has inquired with him as to whether the death
was homicidal or suicidal and he was unable to tell the same at that
moment. He deposed about taking of photographs of scene of the
incident. He also deposed that there were signs that Chandarani had
moved here and there in the room. He also deposed that internal latch of
the room was in broken condition. He then deposed that injuries no.1 and
2 stated in column no.17 of the post mortem report are simple injuries,
which are ante mortem.
40. So far as evidence of Gorakshanath, who is examined as P.W.5 at
Exh.70, who, at the relevant time, was working as a Branch Manager in
Nagar Urban Co-operative Bank Ltd. is concerned, in addition to him,
another witness Shamsundar Khamkar, working as a Branch Manager
with Venkatesh Urban Non-Agricultural Credit Co-operative Society Ltd.,
Sonai, who was examined as P.W.6 at Exh.105, deposed about the
financial condition, the loan transaction of accused no.1.
41. P.W.7 Ranjit, who was examined at Exh.112, has deposed as a
neighbouring witness being residing opposite to the house of accused
no.1. According to him, on the date of the incident, i.e. 17 th March, 2008,
(27) cria437.11A
there was a death of mother of one Ramnath Jagtap and the funeral
procession which proceeded from the same lane of his house was
witnessed by him from the terrace of his house after he returned home at
4.00 p.m. from Newasa. At that time, he saw accused no.2 and the wife of
accused no.3 standing in the gallery of their house and after the
procession passed, he reached inside his house from the terrace and was
resting. At this point he did not notice presence of accused nos.1 and 3,
i.e. Ramdeo and Laxmikant in the house.
42. P.W. 7 Ranjit then deposed that his wife Jyoti noticed smoke
coming out from the house of the accused and also noticed shouting. She
narrated him about it hence, he went to the house of the accused, where
he saw accused no.2 Saraswati, Sangita, wife of accused no.3 Laxmikant
and Ganesh, minor son of accused no.1 were crying in the kitchen on the
ground floor. Adjoining the kitchen, from stair-case he rushed upwards and
noticed accused no.1 Ramdeo coming towards ground floor and was
crying. Then he went to the third floor and noticed that the body of
Chandarani was in flames. He also noticed that she was dead by that
time and came back and informed Ramdeo to report the matter to the
police. In turn, Ramdeo called Kiran Chandel. Apart from above, one
Balu Chopda also came to the spot.
(28) cria437.11A
43. In cross-examination, he stated about the location of his house and
Ramdeo's house and other adjoining houses. Then he stated that the
shop of accused Ramdeo is at two minutes walking distance of two
minutes from the house, which is at main market place. Then he stated
about good financial condition of Ramdeo and having good status in the
society at Sonai. He also deposed that in past he never heard or
witnessed any quarrel or dispute or any cry from the house of Ramdeo.
He further deposed that when he came out of his own house, he noticed
crowd in front of the house of Ramdeo. According to him, at that time the
people in the crowd were under impression that the house of Ramdeo was
on fire. He came to know that Ramdeo had just arrived and had went
inside his house thereafter he reached the spot. He further deposed that
his mother informed him that she had noticed Ramdeo's arrival at the
house. According to him, in view of fire, initially his mother asked him not
go to the house of Ramdeo. He deposed that when he saw Ramdeo
coming down from the third floor; he was crying and was attempting to
shout and express something but was unable to do so.
44. P.W.8 Ganesh Ramdeo Kadel, who was of the age of 6, was
examined at Exh.128, happened to be son of deceased Chandarani and
accused no.1 Ramdeo. The said witness deposed that his mother was
beaten by the accused persons by hands and he was pushed out of the
room by accused no.3, his uncle, who closed the door of the bed room
(29) cria437.11A
and latched it from inside. He further deposed that he saw that his mother
was lying on the floor. He further deposed that he had narrated the same
to the police after the incident and then to his maternal uncle. In cross-
examination, he deposed that whenever he used to be ill, his father used
to take him to Dr. Salunke. Then he deposed that again he was taken to
Dr. Salunke by his father, i.e. accused no.1. He then deposed that he
along with his aunt Sangita, grandmother accused no.2 and Siddhi,
daughter of accused no.3 were watching the funeral procession of mother
of Jagtap. He then deposed that his grandmother went inside to fetch
medicine for Siddhi. He noticed shout of his grandmother and as such,
they went to the bed-room and saw flames from the hole which was in the
roof of the bed-room of second floor and the bed room of his mother was
on third floor. He then stated that all of them rushed on the third floor and
noticed that the door was closed from inside by her mother. He further
deposed that his mother was given call by accused no.1 - grandmother
and his aunt Sangita to open the door and then his grandmother and aunt
forced open the door by breaking it and then he noticed that his mother
was in flames inside the room. He then stated that his grandmother made
a phone call to his father.
45. P.W.9 Complainant Prakash @ Deva Shantilal Varma was
examined at Exh.133. He has deposed that he has one elder brother by
name Deepak and two sisters by name Sunita Sunilkumar Soni and
(30) cria437.11A
Chandarani. According to him, the marriage of Chandarani took place on
4th December, 1998 with accused no.1 Ramdeo at Aurangabad. He has
further stated that Ramdeo used to demand medical expenses from him
as he was advised for medical treatment for conceiving the issue and
since his sister Chandarani was unable to conceive the child, she was
administered treatment from Dr Jilha at Aurangabad. He has also stated
that accused Ramdeo was addicted to liquor. It is further deposed by him
that in-laws of Chandarani in general and husband Ramdeo in particular
used to demand money from him through Chandarani for business and
leading luxurious life. In his evidence, it is brought by him on record that
in 2007 there was a demand of Rs.5,00,000/- by accused no.1 and in
September, 2007, he has paid Rs.50,000/-. According to him, on 15 th
March, 2008, at about 8.00 p.m. he received a call from Chandarani for
Rs.4,50,000/- to fulfil demand of her in-laws and then she complained
about ill-treatment and threat to her life at their hands.
46. He further deposed that on 17 th March 2008 he received a call at
5.00 p.m. from accused No.1 that Chandarani was burnt, to which he
responded by asking him to take her to the hospital. Pursuant to the said
call, he along with his father, younger brother, friend Sanjay Saraf and
elder brother-in-law proceeded to Sonai in two vehicles. While travelling,
he was informed that Chandarani was dead and her body was shifted to
Rural Hospital, Newasa. According to him, having reached at Newasa he
(31) cria437.11A
noticed ambulance in which the body of Chandarani was kept. According
to him, Police Constable Pawar of Sonai police station was accompanying
the ambulance and when body was removed from ambulance, he saw the
status of the body as tongue protruded out of mouth and noticed marks of
beating on her face. According to him, P.W.13 A.P.I. Hibare from Sonai
police station came to Newasa at 7.30. According to him, A.P.I. Hibare
resisted his request for registering complaint, as Hibare asked to wait till
completion of the post mortem. As there was no facility to perform post
mortem in the late night hours, the body was required to be kept at
Newasa till next day and as such, upon complainant's instructions the
body was shifted to Government Hospital, Aurangabad for conducting post
mortem. Police Constable Pawar proceeded to Aurangabad along with
ambulance carrying dead body of Chandarani.
47. Thereafter P.W.9 complainant Prakash @ Deva told A.PI. Hibare
that he is visiting police station, Sonai to take custody of Ganesh, son of
Chandarani, to which Hibare responded by calling the police instructing to
hand over custody of Ganesh to Prakash @ Deva, upon execution of a
receipt.
48. According to P.W.9 complainant Prakash @ Deva, he reached
police station, Sonai at 9.15 p.m. and Police Constable Davkhar was
present. He accordingly took Ganesh into his custody and executed
(32) cria437.11A
receipt for that purpose, which is at Exh.135. He then went to Ghati
Hospital, Aurangabad along with Ganesh, where he saw Police Constable
Pawar, who informed him that the post mortem will be performed on the
next day and as such, the body of Chandarani was shifted to mortuary. He
further stated that he instructed Pawar to take his report in writing, to
which Pawar responded by making a call to A.P.I. Hibare and as such,
nothing was done at that night.
49.
According to him, on the next day, i.e. 18 th March, Doctors reached
between 8 and 9.00 and A.P.I. Hibare along with Pawar between 12 and
12.30 along with Sudam Darandale. He deposed that Hibare discussed
with the Doctors. He then stated that he insisted Hibare to record his
complaint and Hibare then instructed Pawar to reduce in writing first
information report. According to him, at that time Hibare and Constable
Darandale have suggested him not to file first information report.
According to him, he has proceeded to file first information report, which
took 45 minutes for recording, which bears his signature. He was
instructed by Hibare to come to Sonai police station to sign on the first
information register as he is proceeding to police station. Suresh Varma,
his close relative came to Sonai along with him from Ghati Hospital and
they signed on the blank pages of first information register. He was
convinced by Suresh Varma and the Constable Davkhar to sign on the
blank paper as the time consumed in reducing the first information report
(33) cria437.11A
will be saved by him as the complainant will be required to attend the
funeral of Chandarani. According to him, Constable Davkhar has reported
to Suresh Varma that Ganesh has informed Hibare that his grand-mother,
his father and uncle had given burns to his mother. After signing the first
information report register, he proceeded to Ghati Hospital, Aurangabad
and reached there at 8 to 8.15 and received the body of Chandarani from
Police Constable Pawar and then on the same night they performed last
rituals of deceased Chandarani. He admitted the contents of the
complaint at Exh.136 and also the receipt of the dead body at Exh.137.
He then deposed that there is an omission about non-mentioning of the
fact of receipt of call from Chandarani on 15 th March, 2008 in the late night
hours, in the first information report. He then deposed that Hibare had
threatened him to spoil the case, as according to him, he noticed collusion
between Sonai police station staff and the accused persons. He also
stated that A.P.I. Hibare told him that on 17 th March, 2008, the statement of
Ganesh was already recorded. He stated that he moved an application
seeking transfer of the investigation either to C.I.D. or C.B.I. and also met
Superintendent of Police and preferred a representation to the higher
authorities like Chief Minister, Home Minister, etc. According to him, he
received threats from the relatives of the accused.
50. In cross-examination, P.W.9 complainant Prakash @ Deva has
stated that accused no.4, real sister of accused nos.1 and 3 and daughter
(34) cria437.11A
of accused no.2 is married to one Rameshwar, who was an artisan and
was having shop in front of their shop at Aurangabad. According to him,
accused no.4 had a son and a daughter. According to him, Rameshwar
then shifted to Gangapur for business purpose. He deposed that he was
on visiting terms to the house of Ramdeo at Sonai once or twice in a
month, so also his brother and father. He deposed that accused no.1
Ramdeo was owning a car. He then deposed that his father, before
marriage of Chandarani with accused no.1, had seen the house and shop
of the accused. He deposed about demand of Rs.5 Lacs and payment of
Rs.50,000/-. He speaks of satisfying the demand of Rs.50,000/- from the
firm of his father.
51. According to P.W.9 Prakash, in view of differences, i.e. illegal
demand and non-fulfillment thereof, Chandarani was sent back to her
parental house and upon request of Rameshwar Varma, she was again
sent back to the house of the accused for cohabitation. He deposed that
he never thought that life of Chandarani was in danger on account of non-
fulfillment of the demand. He deposed that while registering the
complaint, the incident of 15 th March, 2008 about phone call from
Chandarani, demanding the money was not mentioned in the first
information report/complaint He admitted about taking Ganesh in his
custody on 17th March, 2008, at about 9.00 p.m. in Sonai police station.
(35) cria437.11A
52. It is required to be noted that the omission about the non-
mentioning of incident of 15 th March, 2008 about a call from Chandarani,
and of non-mentioning, i.e father personally meeting maternal uncle of
accused no.1; mentioning by the father to Ramesh Varma about
harassment to Chandarani, were brought on record. The omission was
also brought on record that after meeting father with Ramesh Varma, the
complainant had a dialogue with said Ramesh Varma for fifteen days and
Ramesh Varma then informed him that the accused will not harass
Chandarani and there will be no demand from him.
53. P.W.10 Suresh Varma is examined at Exh.176. He happens to be
the close relative of Chandarani from her parental side and his evidence
was sought to be relied upon for the purpose of establishing that the
signature of complainant P.W.9 Deva @ Prakash was taken on blank
papers in first information report register. He also sought to depose that
Constable Davkhar narrated them that Ganesh has told A.P.I. Hibare that
the accused persons have burnt his mother.
54. P.W. 11 Sunil Soni, co-brother of accused no.1 and husband of
Sugna, is examined at Exh.179. He has stated in his examination-in-chief
about the harassment meted out to Chandarani by the accused persons
and about demand of dowry and bad habits of accused no.1.
(36) cria437.11A
55. P.W.12 Sanjay Saraf, examined at Exh.196, is a friend of
complainant Prakash. He has deposed in support of the illegal demands,
the demand of hand loan by complainant Prakash, so as to satisfy the
demand of the accused persons.
56. In the light of the above referred evidence brought on record, the
learned Trial Court initially decided the aspect of criminal conspiracy, so as
to ascertain commission of an offence punishable under section 120-B of
the Indian Penal Code and upon analysis of the evidence, gave finding
that the prosecution has failed to establish that accused nos. 1 to 3 had
hatched conspiracy to commit murder of Chandarani for alleged non-
fulfillment of demand for an amount of Rs.4,50,000/- from the complainant.
57. While deciding the point as regards death of Chandarani being
homicidal, the Trial Court appreciated the evidence of P.W.1 Dwarka; a
witness to the inquest, P.W.4 Dr. Bhusale, the Medical Officer who has
conducted post mortem at Exh.77. The foremost issue in the present
case that is required to be addressed is, whether it could be inferred
beyond reasonable doubt that the death of Chandarani was a homicidal
death.
58. In our opinion, the evidence of two witnesses, namely, P.W.4 Dr.
Ramkrishna Bhusale and P.W.8 Ganesh is of foremost importance. So far
(37) cria437.11A
as the evidence of P.W.4 Dr. Bhusale is concerned, it is required to be
noted here that the said witness was working as a Professor and Head of
Forensic Department at Government Medical College, Aurangabad and
has admitted to have conducted post mortem on the dead body of
Chandarani on 18th March, 2008, which corpse was brought by A.P.I.
Hibare from Sonai police station. Along with the corpse, he noticed
inquest panchnama and upon examination and verification of the corpse
with the inquest panchnama, he noticed discrepancies and having noticed
injuries over the face which were not part of the inquest panchnama, he
had requested Executive Magistrate for re-inquest and informed the
Investigating Officer about the same. According to him, without waiting for
the Executive Magistrate to perform second inquest, he proceeded to
conduct post mortem on the dead body when he was accompanied by Dr.
S.V. Kuchewar, Dr. K.B. Muglimath and Dr. V.S. Kalokhe, who were
attached to his Department. He noticed red colour bindia over forehead,
yellow metal nathni in left ala of nose, yellow metal ornament in both ears,
yellow metal right in left ring finger, yellow metal ring in right little finger
and iron ring in right middle finger of hand, red coloured plastic bangles in
both wrist, white metal ring in second toe of both foot. All these
ornaments were stained with blackish carbon particles. He then handed
over ornaments and clothes to the Investigating Officer. He noticed burn
features - both eyes closed, mouth was open, tongue protruding out and
in between the teeth, blackish in colour. He noticed evidence of blood
(38) cria437.11A
oozing from both nostrils and blood clots in both ear canals. According to
him, there was evidence of trauma on the head, hence there was blood
oozing from both the nostrils and blood clots in both ear canals. He
noticed that external genitals were burnt and there was no evidence of
purging. He noticed external and internal injuries on the body of
Chandarani which are reproduced herein above. P.W.4 Dr. Bhusale
proved post mortem report Exh.77, C.A. Report regarding viscera Exh.78
and C.A. report Exh.79. He deposed that upon receipt of C.A. Report, he
issued final cause of death certificate on 17 th July, 2008, almost about five
months after the incident, which was "shock due to 100% burns with
fracture of bilateral middle cranial fossae. According to him, he noticed
evidence of violence and homicidal death. He proved the final cause of
death certificate dated 17th July, 2008 at Exh.80. He has deposed that in
the present case, the fractures to the body of Chandarani were unlikely to
be caused due to fall and while responding has stated that fractures can
also be caused due to extensive burn injuries on the scalp. He also stated
that there was evidence of reddish infiltration, which might have been
caused by trauma. He deposed that the fractures in the present case
were caused because of physical trauma.
59. In cross-examination, P.W.4 Dr. Bhusale has admitted that
generally head injuries are caused due to fall, but according to him, in the
present case it is not so. He deposed that in an indirect violence skull
(39) cria437.11A
may get fracture because of fall on feet and buttocks, which are called
counter-coup fractures, wherein the site of fracture is different from the
site of impact. According to him, if a person falls on frontal bone, he may
sustain fracture on parietal, occipital or temporal bone. According to him,
in counter-coup, fractures may be on exactly opposite side. He has
further deposed that linear fracture may be caused due to fall and usually
site of impact is indicated by haematoma on the scalp. In the present
case, there was no injury on the scalp. He further deposed that in respect
of coup fractures noted in the internal examination, there were no external
injuries on the fracture sites. He admits that present is a case of extensive
burn injuries and further admits the proposition that the skull bones are
fractured due to extensive heat to the skull. He also admits that if the
head is exposed to severe heat it may cause fracture causing false
suspicion of violence and this is called as heat haematoma. According to
him, in such cases, skull may get fractured prior to the death or after the
death also. He also agrees with the proposition that the skull bone may
show heat fractures which may occur either due to (1) drying and
desiccation (cracking and outward curving of the outer table) or (2)
bursting involving whole thickness of skull or sutural fractures (separation)
due to increased intra-cranial pressure, from production of gas due to the
effect of heat. He also admits that the cause of death in cases of burn
injuries may have additional circumstance of mechanical injuries as a
result of fall. He also admits that if fracture is caused due to heat, then
(40) cria437.11A
there will be external signs of scalp haematoma and then admits that in
this case those are not coup fractures. He also admits that the injuries to
the body of Chandarani are possible to be caused also if her head had
come in contact with some object. According to him, if frontal portion of
the head comes in contact with any object, the linear fractures, as
observed in this case, may be caused.
He admits that an erect person may collapse and fall to the ground
due to convulsion, fainting, giddiness, inhalation of smoke and poisonous
gasses. According to him, because of fall of such person on an object,
injury may cause on his person at the site of impact and in case if his nose
comes in contact with an object, then there will be injury on his nose. He
also admits that linear fractures observed on bilateral site may be caused
because of indirect injury on the chin or forehead or even because of fall
on feet or buttock, the reason for such injuries will be transmission of
waives and vibrations. He admits that in the present case, he has not
sent sample of blood for estimation of carboxyhaemoglodil level. He
admits that there were signs of inhalation of gasses and soot particles
were seen inside the mouth and internal cavity, and also admits that in
such a case, the person runs for his life and if comes in contact with an
external object by force, he may sustain external injury and depending
upon the force of external injury, the internal injury may cause. In case of
asphyxia, he admits that there are signs of oozing of blood from mouth
(41) cria437.11A
and nose but not from ear and the sign of oozing of blood from ear is due
to the fracture of middle cranial fossa. He also admits that in case of
extensive heat, the fracture may cross sutured lines and fractures due to
heat are usually seen on either side of the skull above the temples. He
also admits that because of heat, middle cranial fossa gets fracture as
they are thin and fragile as compared to other bones of skull.
60. As per the principles of Forensic Medicine, it is difficult to kill active
conscious person by burning and such victim is first either made semi-
conscious, or unconscious, either by assault or by intoxication and then
burnt after pouring fuel on the body or, mouth of the victim is gagged or
his/her hands and feet are tied and then he/she is burnt. However, in the
present case, if the Expert's evidence is tested with reference to the
aforesaid principles, it can be noted that except the injury of fracture,
there is no other mechanical injury noticed on the body of the deceased,
including that of sign of intoxication, tying of hands and feet. Though in the
present case, it is noticed that the soles of deceased Chandarani were
burnt, which is generally not noticed in case of a suicidal burning, yet it is
required to be noted here, particularly from the evidence of P.W.4 Dr.
Bhusale, that the fractures which are referred to as one of the causes for
death, could also be caused because of either extensive heat or because
of movement of the deceased after setting herself on fire in the room.
(42) cria437.11A
61. The distinction between ante mortem and post mortem injuries is
evaluated. Though P.W.4 Dr. Bhusale has stated that prior to commencing
the post mortem, upon verification, he noticed that the injuries on the face
were not part of the inquest, he, therefore, summoned the Executive
Magistrate, however, without waiting or inquiring about the arrival of the
Magistrate, he hastened to carry out the post mortem, i.e. within no time of
issuance of intimation about it to I.O. P.W.13. Same takes us to the
conclusion that summoning the Magistrate was just an empty formality.
Apart therefrom, it is required to be noted here that importance is also
attached to the existence of product of combustion which is in the form of
soot particles in the ear passage or upper gastro intestinal track or COHb
in the blood value. Admittedly, the Doctor has not sent the blood sample
for drawing COHb value in the blood.
It is also required to be noted that in the event of fracture having
been found, the same also suggests that the injuries to the bone were
sustained during the life and the burning by itself will cause fat embolism.
The cause of bony fracture in burning is a common phenomena
noticed in Forensic Medicine, which is generally noticed in bones, arms,
legs, skull, etc.
In the present case, the injuries to the thighs noticed due to burns
as certified by P.W.4 Dr. Bhusale, cannot be ignored.
(43) cria437.11A
62. Though learned Special Public Prosecutor has relied upon the
principles of Forensic Medicine, so as to substantiate his case, particularly
from the extract of book authored by Dr. Apurba Nandy, Mr Ghanekar has
a different version and has made a submission that unless the said
material was confronted with at the time of examination of the witness,
the same cannot be relied upon or taken into consideration. To that effect,
in our opinion, he has rightly placed reliance upon the judgment of Piara
Singh & ors. vs. State of Punjab, reported in AIR 1977 SC 2274.
Paragraph 7 of the said judgment is worth referring to, which reads thus :-
"It is true that the High Court has relied on a number of
books on medical jurisprudence to support the evidence
of Dr. Jatinder Singh. We feel that it was not necessary
for the High Court to do so unless the books were put to
the expert. Recitals in the books do not provide a
sufficient guide to determine the truth or falsity of the
testimony of an expert. Having regard to the facts and
circumstances indicated above we are clearly of the
opinion that the evidence of Dr. Jatinder Singh
corroborated as it is by the evidence of the eye-
witnesses, the evidence of the recovery of the bullet, the
evidence of the ballistic expert and the evidence given
by P.W. Balbir Singh regarding the extra judicial
confession made before him must be accepted. The trial
Court was therefore not justified in throwing out the
prosecution case merely on the basis of the evidence of
(44) cria437.11A
Dr. Paramjit Singh."
63. From the above evidence, in our opinion, it cannot be firmly
concluded that the fracture to the linear bone, as is narrated in the post
mortem report and the connected injuries thereto on the nose and canal of
the ears, has prompted to draw an inference of external violence on
Chandarani before her death. The medical evidence on record rather
prompts this Court to conclude that it is really impossible to draw an
inference that death in the present case was caused because of an
external violence and physical pressure, in absence of any cogent,
convincing and clinching evidence to that effect. Rather an inference
could be drawn is that the prosecution has failed to bring on record the
conclusive evidence, so as to promot that in the present case death of
Chandarani was homicidal.
64. The solitary witness, who was examined so as to substantiate the
claim that the accused persons have killed Chandarani by burning her, is
child witness P.W.8 Ganesh, at Exh.128, who is minor son of accused
no.1 Ramdeo and Chandarani. Though in his examination-in-chief the
said witness has stated that the accused persons had beaten his mother
Chandarani and then poured petrol on her and set her on fire, he has also
deposed that accused nos.1 to 3 had beaten his mother by hands in his
presence in the bed room on the third floor and his uncle - accused no.3
pushed him out and then closed the door. He deposed that petrol was
(45) cria437.11A
poured on his mother when she was lying on the floor and she was set on
fire. In cross-examination, it was elicited that when his grand-mother
accused no.2 went inside the house when they were standing in gallery
along with grand-mother, Sangita - wife of accused no.2 and Siddhi -
daughter of accused no.4, he heard shout of his grand-mother and as
such, he along with his aunt Sangita and Siddhi came to the bed room of
Sangita and saw smoke from the exhaust which was on the roof and then
they rushed on the third floor bed room. He deposed that his grand-
mother - accused no.2 and his aunt forced open the door of the bed room
which was locked from inside and then he saw his mother was in flames.
He then narrated that he was brought down by his grand-mother and his
aunt, who was crying along with Siddhi. He noticed a gathering of the
people on the spot. From the appreciation of the evidence of this witness,
it is required to be noted that the case as is sought to be put-forth, that the
accused persons have set deceased Chandarani on fire, was not at all
established, rather this witness has admitted that he was throughout along
with accused no.2 - his grand-mother, his aunt Sangita and cousin Siddhi.
65. The other aspect of the matter which is required to be appreciated
is about establishing the presence of accused persons, particularly
accused nos.1 and 3 at the house when the incident of burning of
Chandarani took place. The presence of accused no.2 is not at all in
dispute. So far as the presence of accused nos.1 and 3 is concerned, it is
(46) cria437.11A
required to be noted that they have come out with a plea of alibi and so as
to substantiate the same, they have examined witnesses in support of
their defence. The learned Trial Court, while recording finding on
presence of accused no.1 on the spot of the incident, at the time of the
incident, has relied upon the testimony of P.W.7 Ranjit Jadhav, a person
residing in neighbourhood and a witness to the second spot panchnama
Exh.113. If we analyze the evidence of the said witness, he has in
examination-in-chief, stated that after returning from Newasa, at 4.00 p.m.,
he came to know that mother of Ramnath Jagtap had expired. He
witnessed the funeral procession of mother of Ramnath Jagtap from the
terrace of his house and saw Saraswati - accused no.2 and Sangita -
wife of accused no.3 Laxmikant were present in the gallery when he was
witnessing the procession. After the procession passed from the said
place, he came down in his room and was resting, when he was informed
by his wife Jyoti that she noticed smoke from the house of accused
coupled with shoutings. He rushed towards the house of the accused
and noticed that accused no.2 Saraswati, wife of accused no.3 Laxmikant
and P.W.8 Ganesh were crying in the kitchen. Then he used the stair-
case and started going upwards when he noticed Ramdeo coming down
from the stair-case. He inquired with Ramdeo as to what had happened
and he noticed that Ramdeo was crying and was unable to speak and he
just pointed out the finger towards upper floor. Then, he reached on the
third floor to the room of Ramdeo and noticed body of Chandarani and she
(47) cria437.11A
was not alive at that point of time. Then, he informed Ramdeo about
calling of police, so also to Balu Chopada, who came there. In cross-
examination, he has stated that in past he had never heard any disturbing
conversation in between the family members, including that of Chandarani
from the house of the accused persons. He then stated that the shop of
accused no.1 Ramdeo is at a walking distance of just two minutes from his
house and the financial condition of Ramdeo is good and enjoys status in
Sonai. He neither noticed any differences nor harassment to deceased
Chandarani prior to the said incident.
66. According to P.W.7 Ranjit Jadhav, when he went to the house of
accused persons, already there was crowd of people and women in front
of the house of Ramdeo, who were under impression that the house of
Ramdeo was on fire. By the time he went to the house of accused
Ramdeo, he came to know that Ramdeo had just arrived and went in the
house. He also narrated that his mother had told him that Ramdeo had
just come and went in the house and then he went to the house of
Ramdeo. The presence of accused no.2 Saraswati, Ganesh, Sangeeta
w/o accused no.3 and Siddhi on the ground floor and who were crying
rather suggests that the incident of death of Chandarani had taken place
prior in point of time than that of arrival of accused no.1. The above
narration, in clear terms, leads to the only conclusion that accused no.1
Ramdeo had reached to the spot of the incident, i.e. his house, after the
(48) cria437.11A
incident of burning of his wife Chandarani was over. It is also brought on
record that Ramdeo, having received a call from his mother when he was
in the shop, immediately came to his house by informing the neighbour
shop owner. It is required to be noted here that the presence of accused
Ramdeo or for that matter, of accused Laxmikant from any of the iota of
evidence that is brought on record, particularly at the time of the incident,
was not at all established. The fact that the presence of Ramdeo at the
spot of the incident, at the relevant time, was not established is also
fortified from his arrest which was on the next day, i.e. on 18 th March, 2008
vide Exh.206 and no injuries were noticed on his person.
67. Rather, from the evidence of P.W.4 Dr. Bhusale, who has carried
out a visit on 18th March, 2008, i.e. on the next day of the incident after
conducting post mortem, has prompted P.W.13 A.P.I. Hibare to draw
second spot panchnama, when he noticed that the latch holders of the
bedroom were fallen aside and the door was in broken condition, which
fact was not noticed by him when he had drawn spot panchnama on 17 th
March, 2008, the date of incident. P.W.13 Hibare has also not
investigated the said issue as to whether same was inserted
subsequently. In view of above, the fact that the door of the room of
Chandarani was broke open by accused no.2 and Sangita - the wife of
accused no.3 is required to be accepted, particularly in the light of the
evidence of P.W.8 Ganesh, as the evidence to that effect appears to be
(49) cria437.11A
worth believing.
68. The presence of the other articles, such as, match-box, the burnt
match-stick, presence of soot particles on the floor, all the walls and roof
of the bed room and also in the bath-room, a Can containing kerosene,
the lid of the container lying apart, though concludes that the incident of
burning has occurred in the bath-room and bed-room, yet the theory of
movement of Chandarani after setting herself on fire, cannot be
disbelieved, particularly which prompts this Court to believe of causing
injuries on her body because of fall on hard object.
69. One more aspect of which this Court must take note of is Exh.113,
the first spot panchnama drawn by the Investigating Officer on 17 th March,
2008, which he commenced at 1805 hours and concluded at 1900 hours.
Admittedly, there were no lights, as entire wiring of the said room was
burnt. At that time, in Exh.113, it is specifically mentioned that the latch
which is located on the middle of the door from inside the room, was not
noticed.
70. In the second spot panchnama which was prepared on 18 th March,
2008, the latch holders were noticed lying near the bed and as such, the
same are mentioned in the said panchnama. The damage to the door
has also been noticed, which is in tune with the testimony of accused
(50) cria437.11A
no.2, D.W.1 Sangeeta about forcing open the door of the bed-room.
71. The said panchnama, dated 18th March, 2008, was drawn between
4.30 p.m. and 5.30 p.m., which is proved at Exh.74. The witness to this
second panchnama, i.e. P.W.3 Omprakash Varma has stated that the
inner latch of the main door was broken. The omission was elicited about
non-mentioning of the location of latch holder, which was lying towards
bath-room. The omission was also noticed as regards the non-mentioning
of the door which opens on the southern side of the gallery of the bed-
room on the third floor, where the incident had taken place.
72. There is one more aspect of which this Court must take note of is
that the complainant P.W.9 Prakash claimed to have stated to the Police
Constable Pawar, who has reduced his complaint in writing, upon
instructions of P.W.13 A.P.I. Hibare, about non-mentioning of injuries in the
inquest panchnama which were noticed on the face of Chandarani,
however, the said omission could be noticed in the first information report
and the fact remains that the prosecution has not examined Police
Constable Pawar, who has recorded the complaint of P.W.9 Prakash. It is
also required to be noted that P.W.9 Prakash has made allegations
against P.W.13 A.P.I. Hibare of not accepting his complaint either on 17 th
March or on 18th March, 2008 at the earliest, however, the said stand of
P.W.9 appears to be in contradiction to Exh.270, a receipt executed by him
(51) cria437.11A
accepting the dead body of his sister wherein he has stated that he shall
give his complaint later on. He has rather stated that he had no complaint
against Police Constable Pawar and, in fact, his complaint was reduced
into writing by Pawar as per his narration without interruption. It is
required to be noted that P.W.13 Investigating Officer had issued a
communication on 3rd April, 2008 raising certain queries about age of the
injuries, the cause of fracture, the cause of death, the time of death, to
which P.W.4 Dr. Bhusale had responded by communication dated 7 th April,
2008, informing that whether the death is homicide or suicide will be
informed after perusing the spot panchnama, photographs and C.A.
report. It is required to be noted that it was communicated by P.W.4 Dr.
Bhusale in the month of July, 2008, i.e. almost after four months that the
death was homicidal, though the same is endorsed by a team of Doctors,
the delay in giving the said communication is also not explained by P.W.4
Dr. Bhusale and also as to whether the cause of death certified was after
perusal of the documents.
73. P.W.13 Investigating Officer Hibare has, in clear terms, admitted
that he had not mentioned in the panchnama that he had inspected the
door of the room from outside. He has also admitted that if the door was
forced open by pushing it from outside the room, the case in question will
not fall within the definition of "murder". He has also admitted that he had
not taken into account the other issues as regards the forceful opening of
(52) cria437.11A
the door after breaking it, as he had noticed that the holder of the door
from inside was absent.
74. Exhs.220 and 221 are the normal call billing records from Newasa
Exchange of 17th March, 2008, which reflects in all eight call details. So
as to establish the case that no call was made by accused no.2 to
accused no.1 in the shop, the prosecution has not examined any official in
support of the said evidence. As such, the said evidence at Exhs.220 and
221, on the aspect of the prosecution story, is also required to be
discarded.
75. The other incriminating aspect which in the opinion of the
prosecution should have been taken into account is that no efforts on the
part of the accused persons in dousing the flames when the accused had
reached at the spot. It is required to be noted that it is accused no.2
Saraswati, who for the first time, had noticed thick smoke coming out from
the exhaust on the floor of bed room of Chandarani on the third floor, in
the bed room of accused no.3, which was on the second floor and that
was first occasion for her to notice the fire in question. As per the story
narrated by Ganesh, so also the defence, they immediately ran to the third
floor and forced open the door and then noticed Chandarani in heavy
flames.
(53) cria437.11A
76. The scenario as was noticed on the third floor has prompted
accused No.2 to bring down both the kids to the ground floor and perhaps,
by that time, the body of Chandarani was completely burnt. It is also
noticed from the evidence of P.W.7 Jadhav that when he reached and
witnessed the corpse, he noticed that Chandarani was dead and the body
was in flames. He also had not taken any steps to pour water on the body
and through his evidence it could be inferred that he thought that death of
Chandarani was by electrical shock/short-circuit. The other incriminating
aspect, which was sought to be relied on, was the presence of Barmuda,
which had kerosene smell. The said article was neither seized nor sent for
chemical analysis. The prosecution has not established that the Barmuda
was that of the accused and one Barmuda lying in the bath-room was
used as a wearing cloth by accused no.1 Ramdeo or it is a waste cloth
used for cleaning the room. All above referred circumstances which were
relied upon as being incriminating, so as to establish the guilt of the
accused, in our opinion, are required to be rejected as the same do not
establish the guilt of the accused beyond reasonable doubt.
77. In view of overall analysis of the evidence that is brought on record
and particularly in the light of the fact that there was no eye-witness to the
incident and the conviction is sought to be based solely on the
circumstantial evidence, it is required to be noted that it is well settled law
that in cases resting on circumstantial evidence, the prosecution is
(54) cria437.11A
required to prove not only each and every circumstance, but is also
required to prove that the circumstances which form a chain should
exclude every hypothesis of the innocence of the accused and should
unerringly point to the guilt of the accused. In other words, the
prosecution must prove that it is the accused and the accused alone who
has committed the offence.
78. The evidence, as is discussed herein above, has failed to establish
the presence of accused nos.1 and 3 on the spot, at the relevant time, as
from the evidence of the prosecution, so also the evidence of the defence,
it could easily be inferred that the accused persons were not present on
the spot. The prosecution cannot take shelter of non-proving of defence,
as the burden is on the prosecution to prove that the accused were
present at the scene of the offence. The inference drawn and reliance
placed by the Trial Court on the evidence of P.W.7 Ranjeet Jadhav, so as
to establish the presence of accused no.1 on the spot is also without
considering the cross-examination.
79. So far as accused no.2 Saraswati is concerned, P.W.7 Ranjeet
Jadhav has witnessed her presence at the time of funeral procession of
mother of Jagtap from his terrace as he had noticed accused no.2 along
with P.W.8 Ganesh standing in the gallery and witnessing the procession.
It is not the case of the prosecution that accused no.2 alone along with
(55) cria437.11A
Sangita has caused death of Chandarani by burning her. Apart from
above, even the medical evidence as is brought on record through P.W.4
Dr. Bhusare, rather elucidations brought on record in his cross-
examination do not lead this Court to the sole conclusion that deceased
Chandarani was subjected to physical violence before her death and
accused persons were instrumental for the same. In view of above, in our
opinion, the chain of circumstances as sought to be established by the
prosecution, is required to be disbelieved as incomplete. Same cannot be
relied upon for the purpose of maintaining the conviction of accused no.1
and awarding conviction to accused nos.2, 3 and 4, in the facts and
circumstances of this case.
80. With analysis of evidence on record as aforesaid, we now deal with
the relevant case laws relied upon by either sides. As far as the
prosecution is concerned, so as to establish the guilt of the accused, it has
relied on the following case laws :-
The prosecution has relied upon the judgment of the Apex Court in
the matter of Trimukh Maroti Kirkan vs. State of Maharashtra, reported
in 2007 Cri.L.J. 20 (1), so as to canvass that the degree of evidence as is
required to be brought on record to establish the guilt of the accused in the
cases like the present one is required to be appreciated in the background
of section 106 of the Evidence Act. The learned Public Prosecutor has
(56) cria437.11A
relied upon the observations made by the Apex Court in paragraphs 11
and 12 of the said judgment, which read thus :-
"11. The demand for dowry or money from the parents of the
bride has shown a phenomenal increase in last few years.
Cases are frequently coming before the Courts, where the
husband or in-laws have gone to the extent of killing the
bride if the demand is not met. These crimes are generally
committed in complete secrecy inside the house and it
becomes very difficult for the prosecution to lead evidence.
No member of the family, even if he is a witness of the crime,
would come forward to depose against another family
member. The neighbours, whose evidence may be of some
assistance, are generally reluctant to depose in Court as
they want to keep aloof and do not want to antagonize a
neighbourhood family. The parents or other family members
of the bride being away from the scene of commission of
crime are not in a position to give direct evidence which may
inculpate the real accused except regarding the demand of
money or dowry and harassment caused to the bride. But, it
does not mean that a crime committed in secrecy or inside
the house should go unpunished.
12. If an offence takes place inside the privacy of a house
and in such circumstances where the assailants have all the
opportunity to plan and commit the offence at the time and
in circumstances of their choice, it will be extremely difficult
for the prosecution to lead evidence to establish the guilt of
the accused if the strict principle of circumstantial evidence,
as noticed above, is insisted upon by the Courts. A Judge
(57) cria437.11A
does not preside over a criminal trial merely to see that no
innocent man is punished. A Judge also presides to see that
a guilty man does not escape. Both are public duties. (See
Stirland v. Director of Public Prosecution 1944 AC 315 -
quoted with approval by Arijit Pasayat, J. in State of Punjab
vs. Karnail Singh (2003) 11 SCC 271). The law does not
enjoin a duty on the prosecution to lead evidence of such
character which is almost impossible to be led or at any rate
extremely difficult to be led. The duty on the prosecution is
to lead such evidence which it is capable of leading, having
regard to the facts and circumstances of the case. Here it is
necessary to keep in mind Section 106 of the Evidence Act
which says that when any fact is especially within the
knowledge of any person, the burden of proving that fact is
upon him. Illustration (b) appended to this section throws
some light on the content and scope of this provision and it
reads:
(b) A is charged with traveling on a railway without ticket.
The burden of proving that he had a ticket is on him."
Where an offence like murder is committed in secrecy inside
a house, the initial burden to establish the case would
undoubtedly be upon the prosecution, but the nature and
amount of evidence to be led by it to establish the charge
cannot be of the same degree as is required in other cases of
circumstantial evidence. The burden would be of a
comparatively lighter character. In view of Section 106 of
the Evidence Act there will be a corresponding burden on
the inmates of the house to give a cogent explanation as to
how the crime was committed. The inmates of the house
cannot get away by simply keeping quiet and offering no
(58) cria437.11A
explanation on the supposed premise that the burden to
establish its case lies entirely upon the prosecution and there
is no duty at all on an accused to offer any explanation."
The prosecution has also relied upon observations in paragraphs
10, 11, 12 and 13 of the judgment of the Apex Court in the matter of
Shambhu Nath Mehra vs. The State of Ajmer, reported in AIR 1956 SC
404, so as to submit that the death of deceased Chandarani is a fact
which is especially within the knowledge of the accused persons and as
such, the accused persons must discharge the said burden in the
background of the evidence and the claim that is brought on record. It is
required to be noted here that once there are findings recorded as regards
the absence of accused no.1 and 3 on the spot of the incident and it is
also established from the evidence of P.W.7 Jadhav that accused no.2
Saraswati was in the gallery of the second floor witnessing the funeral
procession of mother of Jagtap, the fact about her absence from the room
of deceased Chandarani, was properly established. To that effect, the
evidence of D.W. Sangeeta is also required to be taken into account, who
has deposed about the fact of forcing open the door of the bed room of
Chandarani by accused no.2 Saraswati and Sangeeta.
81. That in a case of murder, which the prosecution alleges to have
committed by accused in the present matter, with further allegation of
complete secrecy and inside the house, the amount of evidence required
(59) cria437.11A
to be established cannot have the same degree as required in other
cases. Learned Special Public Prosecutor would urge that the silence on
the part of the inmates of the house has to be taken as a link in chain of
circumstances as against the accused. The availability of the evidence of
illtreatment for non-fulfilling the demand of dowry and the medical
evidence if read in entirety, can be given cumulative effect of completing
the chain of circumstantial evidence as against the accused. It is worth to
observe here that, the said judgment of Apex Court will hardly be of any
assistance to the appellant, particularly when the medical evidence is not
pointing out a conclusive finger towards the guilt of accused persons that
they have committed the murder, as the injuries ante mortem and post
mortem, including that of linear fracture could have been caused because
of heat and fall. Accused persons through evidence of defence have to
some extent established their case, particularly as regards their presence
at some other place at the time of the incident, except accused no.2 and
presence of accused no.2 in the gallery witnessing the funeral procession.
In view of above, the claim that this fact was especially within the
knowledge of the accused persons pursuant to section 106 of the
Evidence Act and as such, they owe an explanation to that effect, is liable
to be and is accordingly rejected as the prosecution has failed to establish
its basic case of presence of accused nos.1 and 3 at the scene of the
offence.
(60) cria437.11A
82. Even in the matter of Shambhu Nath Mehra (cited supra), the
learned Special Public Prosecutor had sought to canvass that though the
burden of proof is on the prosecution, yet the circumstances in which the
accident in question had taken place, it would be impossible or at any rate
disproportionately difficult for the prosecution to establish the facts which
were especially within the knowledge of the accused, which an accused
could prove without difficulty or inconvenience. The said submissions are
also required to be considered in the background of the fact as regards
the burden to be discharged by the prosecution, so as to establish that the
fact was especially within the knowledge of the accused and the inability
of the prosecution to prove the said fact. In the present case, the
prosecution has come out with a clear case of murder and has not come
with a case that the fact was specially within the knowledge of the
accused.
83. Appropriate support can be drawn for the above conclusion from
the judgment of the Apex Court in the matter of Murlidhar & ors. vs.
State of Rajasthan, reported in (2005) 11 SCC 133, wherein the Apex
Court, in paragraph 23, has held thus :-
"In the result, we are of the view that the prosecution having put
forward a case that, what transpired after Ramlal was dragged
away by the assailants was within the knowledge of witnesses,
utterly failed in proving the said facts. Once this is established,
it was not open for the High Court to have fallen back on the
(61) cria437.11A
rule of burden of proof under Section 106 of the Evidence Act. In
fact, as we notice, it was nowhere the case of the prosecution
that Section 106 of the Evidence Act applied to the facts on
record. The High Court seems to have brought it out on its own,
but without any justification. We are, therefore, of the view that
the conviction of Murlidhar, Chhaju Ram and Babu Lal s/o
Chhaju Ram under Section 364 IPC is justified and liable to be
confirmed, but their conviction under Section 302/34 IPC
cannot be sustained and they are liable to be acquitted of the
said charges."
84. As held herein above, the prosecution has not brought on record
any material to indicate that the fact about setting on fire deceased
Chandarani was especially within the knowledge of the accused alone
they being the culprit and as such they owe an explanation as to the death
of Chandarani, since that case was never pleaded and canvassed by the
prosecution.
85. In view of above, even though the proposition of law that is sought
to be canvassed by the learned Special Public Prosecutor cannot be
disputed, yet the same will hardly be of any assistance, particularly the
submissions in the background of section 106 of the Evidence Act, are
liable to be rejected.
(62) cria437.11A
Learned Public Prosecutor has relied upon the judgment of this
Court in the matter of State of Maharashtra vs. Raju Dadaba Borge,
reported in 2000 ALL MR (Cri) 1834, particularly paragraph 10 thereof, to
buttress his submission that the evidence of child witness P.W.8 Ganesh
examined at Exh.128 is required to be accepted, particularly the part of his
evidence which cannot be held to be resulting from tutoring, for the
purpose of corroboration, be appreciated.
86.
Perusal of the testimony of child witness P.W.8 Ganesh reveals
that, in his examination-in-chief he speaks of the murder of his mother by
the accused persons, whereas in cross-examination he narrates entirely
opposite version, which supports the defence of accused persons. The
version narrated in the cross-examination also establishes the truth as
regards the contents of the spot panchnama; the stand taken by accused
no.2 about her presence on second floor along with wife of accused no.3;
the said child witness Ganesh and Siddhi - the daughter of accused no.4,
who later on went on the third floor and forced open the door of the room
of deceased Chandarani. So, even if the submission of the learned Public
Prosecutor is to be accepted, based on the above referred judgment, the
case of the prosecution cannot be termed to have been established
beyond reasonable doubt, so as to unerringly point out the guilt of the
accused persons. Apart from above, in view of the complete contradictory
version of this witness in cross-examination, it is also difficult to accept the
(63) cria437.11A
part of evidence.
87. Learned Counsel appearing on behalf of the appellant/accused has
relied upon the judgment of the Apex Court, in the matter of Piara Singh
& ors. vs. State of Punjab, reported in AIR 1977 SC 2274, so as to
canvass that the expert witness P.W.4 Dr. Bhusale, who was examined to
prove the circumstances on medical and forensic side so as to establish
the guilt of the accused is required to be rejected, particularly when in his
cross-examination the said witness has agreed to the fact as regards
cause of death could be even by heat and fall. In our opinion, the
appropriate support can be drawn from the said judgment, particularly
observations in paragraphs 5 and 6, so as to infer that the evidence of the
said witness creates doubt in the mind of the Court as regards acceptance
thereof so as to conclude the guilt of the accused persons.
88. Learned Counsel appearing on behalf of the appellant/accused has
also placed reliance upon the judgment of the Apex Court in the matter of
Varkey Joseph vs. State of Kerala, rep. by the Circle Inspector of
Police, reported in AIR 1993 SC 1892, so as to canvass that the evidence
of the prosecution witnesses is full of leading questions and the
Prosecutor cannot put leading questions on material part of evidence
which a witness would be compelled to answer against the accused as per
expectation of the prosecution. According to him, such approach of the
prosecution offends the right of the accused of fair trial and the evidence
(64) cria437.11A
to that effect is needed to be ignored as it is not a curable irregularity. He
has placed reliance on paragraph 11 of the said judgment, which reads
thus :-
"Leading question to be one which indicates to the
witnesses the real or supposed fact which the
prosecutor (plaintiff) expects and desires to have
confirmed by the answer. Leading question may be
used to prepare him to give the answers to the
questions about to be put to him for the purpose of
identification or to lead him to the main evidence or fact
in dispute. The attention of the witness cannot be
directed in Chief examination to the subject of the
enquiry/trial. The Court may permit leading question to
draw the attention of the witness which cannot
otherwise be called to the matter under enquiry, trial or
investigation. The discretion of the court must only be
controlled towards that end but a question which
suggest to the witness, the answer the prosecutor
expects must not be allowed unless the witness, with
the permission of the Court, is declared hostile and
cross-examination is directed thereafter in that behalf.
Therefore, as soon as the witness has been conducted
(sic) to the material portion of his examination, it is
generally the duty of the prosecutor to ask the witness
to state the facts or to give his own account of the
matter making him to speak as to what he had seen.
The prosecutor will not be allowed to frame his
questions in such a manner that the witness by
answering merely "yes" or "no" will give the evidence
which the prosecutor wishes to elicit. The witness must
(65) cria437.11A
account for what he himself had seen. Sections 145
and 154 of the Evidence Act are intended to provide for
cases to contradict the previous statement of the
witnesses called by the prosecution. Ss. 143 and 154
provides the right to cross-examination of the witnesses
by the adverse party even by leading questions to
contradict answers given by the witnesses or to test the
veracity or to drag the truth of the statement made by
him. Therein the adverse party is entitled to put leading
questions but S. 142 does not give such power to the
prosecutor to put leading questions on the material part
of the evidence which the witnesses intends to speak
against the accused and the prosecutor shall not be
allowed to frame questions in such a manner which the
witness by answering merely yes or no but he shall be
directed to give evidence which he witnessed. The
question shall not be put to enable the witness to give
evidence which the prosecutor wishes to elicit from the
witness nor the prosecutor shall put into witness's
mouth the words which he hoped that the witness will
utter nor in any other way suggest to him the answer
which it is desired that the witness would give. The
counsel must leave the witness to tell unvarnished tale
of his own account. Sample leading questions
extracted hereinbefore clearly show the fact that the
prosecutor led the witnesses what he intended that
they should say the material part of the prosecution
case to prove against the appellant which is illegal and
obviously unfair to the appellant offending his right to
fair trial enshrined under Art.21 of the Constitution. It is
not a curable irregularity."
(66) cria437.11A
89. It is required to be noted here that from the evidence of P.W.4 Dr.
Bhusale and P.W.9 Prakash @ Deva, it could easily be noticed that the
prosecution has, time and again, put leading questions to the witnesses so
as to indicate the said witness the real or supposed fact. At most of the
places objection to leading questions was also not decided then and there
or at the conclusion of trial.
90.
Learned Counsel appearing on behalf of the appellant/accused has
also placed reliance upon the judgment of this Court in the matter of State
Vs. Bhanuprasad Shyamlal Joshi, reported in 1967 Mh.L.J. 394 and the
judgment of the Apex Court, in the matter of Tahsildar Singh & anr. vs.
State of U.P., reported in AIR 1959 SC 1012, so as to canvass that the
statement of a witness recorded under section 162 of the Code of Criminal
Procedure, cannot be used for corroboration or for contradicting a defence
witness. According to him, the approach of the prosecution in the present
matter, particularly in relation to recording of evidence of the witnesses
reflects that, time and again, the statement of the witness recorded under
section 162 of the Code of Criminal Procedure was used for corroboration
of prosecution story. So far as the above referred submissions are
concerned, in our opinion, the appreciation of the evidence, particularly in
the light of above referred submissions is already done by this Court
afresh, having regard to the scope of appellate jurisdiction as is spelt out
(67) cria437.11A
by the Apex Court in the matter of Laxman Kalu Nikalje vs. The State of
Maharashtra, reported in AIR 1968 SC 1390. This Court is aware about
its limitations and the mandate of the Apex Court that the judgment of the
learned Sessions Court cannot be upset simpliciter, as the Sessions Court
had an advantage to observe the demeanour of the witness during the
course of recording of evidence.
91. Learned Counsel appearing on behalf of the appellant/accused has
rightly placed reliance upon the judgment of the Apex Court in the matter
of Subramaniam vs. State of Tamil Nadu & anr., reported in 2009 ALL
MR (Cri) 2118 (S.C.), particularly paragraph 14, so as to canvass that
even though it is for the husband to explain the circumstances in which the
wife might have died, yet absence of explanation though a strong
circumstance against the husband, can not per se be taken to mean that
he alone was responsible therefor. According to him, even if the plea of
alibi as was raised was not sufficiently established, that could be an
additional circumstance for inferring the guilt of the accused, but merely
because the plea of alibi was not established, the accused cannot be held
guilty. According to him, the above referred two additional circumstances
(i) the explanation of the accused, which aspect could be noticed from the
findings on absence of accused no.1 at the scene of the incident and (ii)
absence of accused no.3 along with him and the admitted presence of
accused no.2 in the house (not at the spot of the incident) has prompted
(68) cria437.11A
this Court to consider the mandate of the Apex Court while giving
consideration and making evaluation of the circumstantial evidence.
Paragraphs 14 and 23 of the said judgment read thus :-
"14. So far as the circumstance that they had been
living together is concerned, indisputably, the entirety of
the situation should be taken into consideration.
Ordinarily when the husband and wife remained within
the four walls of a house and a death by homicide takes
place it will be for the husband to explain the
circumstances in which she might have died. However,
we cannot lose sight of the fact that although the same
may be considered to be a strong circumstance but that
by alone in absence of any evidence of violence on the
deceased cannot be held to be conclusive. It may be
difficult to arrive at a conclusion that the husband and
husband alone was responsible therefor.
23. The finding of the High Court that appellant had to
prove title of his land ex facie is incorrect. P.W. 1
categorically stated that appellant had three acres of
land. P.W. 3 also accepted that land of the appellant is
almost by the side of his land. In view of the admission
made by the prosecution witnesses, the High Court, in
our opinion, committed a serious error in arriving at a
conclusion that he did not possess any land
whatsoever. Mr. Kanagaraj, however, would submit that
even if he had gone for irrigating his land, the same
may not take much time. In any event, having regard to
the evidence of P.W. 3, it is wholly unlikely that he was
(69) cria437.11A
absent from his house. There are two aspects of the
matter. One is that the reasoning of the High Court that
he did not have any land whatsoever and, therefore, he
must be presumed to have been in his house only
appears to be wholly incorrect. But even assuming that
he did not have any land and he in fact went to P.W. 3
for the purpose of taking his wife to hospital may not by
itself be a ground for holding him guilty. Failure to prove
the plea of alibi and/or giving of false evidence itself
may not be sufficient to arrive at a verdict of guilt; it may
be an additional circumstance. But before such
additional circumstance is taken into consideration, the
prosecution must prove all other circumstances to prove
his guilt."
92. Similarly, the learned Counsel has also relied upon the judgment of
the Apex Court in the matter of Bhagirath vs. State of M.P., reported in
AIR 1976 SC 975, so as to canvass that the prosecution must stand on its
own legs and the weakness of the defence cannot be an advantage to
the prosecution nor the Court can invent a new case as against the
accused persons.
93. The learned Counsel then submits that the close relatives of
deceased Chandarani, being blood relations, are in all probability, likely to
exaggerate the narrations as there is a natural tendency to that effect and
in view thereof, the evidence of such witnesses, viz. P.W.9 complainant
Prakash, real brother of deceased Chandarani, P.W.11 Sunil Soni, co-
(70) cria437.11A
brother of accused no.1 and the sister's husband of deceased
Chandarani, P.W.12 Sanjay Saraf, close friend of P.W.9 complainant, is
required to be analyzed with great circumspection and caution. According
to him, the circumstantial evidence, on which basis the conviction of
accused no.1 Ramdeo was ordered by the Trial Court, does not satisfy the
requirements as are enshrined in the judgment of the Apex Court, in the
matter of Sharad Birdhichand Sarda vs. State of Maharashtra,
reported in 1984 Cri. L.J. 1738 (1). He would also urge that such
circumstances which were not put to the accused person, cannot be used
against him. So as to draw support to this submission, he has placed
reliance upon paragraphs 48, 152, 153 and 156, which read thus :-
"48. Before discussing the evidence of the witnesses we
might mention a few preliminary remarks against the
background of which the oral statements are to be
considered. All persons to whom the oral statements are
said to have been made by Manju when she visited Beed
for the last time, are close relatives and friends of the
deceased. In view of the close relationship and affection
any person in the position of the witness would naturally
have a tendency to exaggerate or add facts which may not
have been stated to them at all. Not that this is done
consciously but even unconsciously the love and affection
for the deceased would create a psychological hatred
against the supposed murderer and, therefore, the court
has to examine such evidence with very great care and
caution. Even if the witnesses were speaking a part of the
(71) cria437.11A
truth or perhaps the whole of it, they would be guided by a
spirit of revenge or nemesis against the accused person
and in this process certain facts which may not or could
not have been stated may be imagined to have been
stated unconsciously by the witnesses in order to see that
the offender is punished. This is human psychology and
no one can help it.
152. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may
be' established. There is not only a grammatical but a
legal distinction between 'may be proved' and 'must be or
should be proved' as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC
793 : (AIR 1973 SC 2622) where the following
observations were made:
"certainly, it is a primary principle that the accused must
be and not merely may be guilty before a court can convict
and the mental distance between 'may be' and 'must be' is
long and divides vague conjectures from sure
conclusions."
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
(72) cria437.11A
they should not be explainable on any other hypothesis
except that the accused is guilty.
(3) the circumstances should be of a conclusive nature
and tendency.
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have been
done by the accused.
153. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.
156. This indicates the cardinal principle of criminal
jurisprudence that a case can be said to be proved only
when there is certain and explicit evidence and no person
can be convicted on pure moral conviction. Horry's case
(supra) was approved by this Court in Anant Chintaman
Lagu v. State of Bombay, (1960) 2 SCR 460: (AIR 1960
SC 500). Lagu's case as also the principles enunciated by
this Court in Hanumant's case (supra) have been
uniformly and consistently followed in all later decisions of
this Court without any single exception. To quote a few
cases - Tufail's case (1969 (3) SCC 198) (supra),
Ramgopal's case (AIR 1972 SC 656) (supra),
Chandrakant Nyalchand Seth v. State of Bombay
(Criminal Appeal No. 120 of 1957 decided on 19.2.58),
(73) cria437.11A
Dharmbir Singh v. State of Punjab (Criminal Appeal No. 98
of 1958 decided on 4.11.1958). There are a number of
other cases where although Hanumant's case has not
been expressly noticed but the same principles have been
expounded and reiterated, as in Naseem Ahmed v. Delhi
Administration (1974) 2 SCR 694 (696) : (AIR 1974 SC
691 at p.693). Mohan Lal Pangasa v. State of U.P., AIR
1974 SC 1144 (1146), Shankarlal Gyarasilal Dixit v. State
of Maharashtra, (1981) 2 SCR 384 (390) : (AIR 1981 SC
765 at p.767) and M.C. Agarwal v. State of Maharashtra,
(1963) 2 SCR 405 (419) : (AIR 1963 SC 200 at p.206) a
five-Judge Bench decision."
In our opinion, appropriate support can be drawn from the said judgment ,
particularly while appreciating the evidence of complainant P.W.9 Prakash,
who has initially alleged that his complaint was not accepted by P.W.13
A.P.I. Hibare immediately after the incident on 17 th March, 2008 or also on
18th March, 2008 in the morning, whereas if his conduct is tested in the
light of the acknowledgement Exh.137 executed by P.W. 9 about receipt of
the dead body of Chandarani, he himself has mentioned in the said
document, which was admitted by him, that he will lodge the complaint
next day. Similar exaggerations could be noticed in the evidence of his
other sister's husband, i.e. P.W.11 Sunil.
94. Apart from above, it is required to be taken note of the fact that the
links in the chain of evidence which was brought by the prosecution, were
(74) cria437.11A
not satisfactorily proved in the light of the foregoing discussion, the same
cannot be taken as pointing guilt against the accused with reasonable
definiteness. It is further required to be noted here that the story of the
prosecution does not appear to be consistent with the hypothesis of the
guilt of the accused and is of not conclusive nature and has a changing
tendency.
95. So far as the demand of dowry is concerned, it is claimed by P.W.9
complainant Prakash that there was a demand of Rs.5,00,000/- by the
accused persons. According to him, in September, 2007, he has paid an
amount of Rs.50,000/- and balance Rs.4,50,000/- was promised to be
paid at the earliest. In the first information report, an omission was noted
about the receipt of the phone call from Chandarani on 15 th March, 2008,
in the evening at about 8.00 making demand of Rs.4,50,000/- at the
behest of the accused persons. It is required to be noted that in the entire
evidence of the witnesses which were examined on behalf of the
prosecution, the prosecution is completely silent so as to show and
demonstrate the nature of illtreatment allegedly meted out to Chandarani.
It is also required to be noted that the parents of deceased Chandarani
were not examined so as to establish the demand and harassment to
Chandarani. In the evidence of P.W.9 Prakash, it has come on record that
in September, 2007, he paid Rs.50,000/- from the account of his father,
however, he has failed to produce any entry in the accounts or the copy of
(75) cria437.11A
the balance sheet depicting such payment. Rather, from the evidence of
P.W.5 Gorakshanath and P.W.6 Shamsundar, who are from the banking
institutions with whom accused no.1 was having financial transaction, it
could be noticed that the financial condition of the accused, particularly
accused no.1 was very good and he had obtained loan after pledging the
gold. It could also be noticed that the other nationalised Bank has given
no objection as regards any dues outstanding against accused no.1.
Apart therefrom, it is also required to be noted that vide Exh.269, property
bearing No.1295 at Sonai was purchased by the accused persons in the
name of accused no.3 Laxmikant on 28th June, 2007.
96. In the background of above, it is difficult to believe that there was
demand of dowry from the side of the accused persons.
97. Rather, it has come on record that the co-brother of the accused,
namely, P.W. 11 Sunil, who was earlier residing at Ujjain was made to shift
at Aurangabad at the behest of the parents and brother of Chandarani. It
has come in the evidence, that Chandarani was interested in shifting to
Aurangabad and the father of Chandarani had already informed accused
no.1 that he should separate himself from family by accepting his share
and shift to Aurangabad. The purchase of property on 28 th June, 2007,
vide Exh.269 was also objected by the father of deceased Chandarani, on
the ground that purchase was in the name of accused no.3 Laxmikant, to
(76) cria437.11A
which accused no.2 Saraswati, mother of accused nos.1, 3 and 4 had
stated that the house in which they were residing was in the name of
accused no.1 Ramdeo. The transactions in the Bank, particularly from the
evidence of the witnesses P.W. 5 and 6 reflects that the financial condition
of accused Ramdeo was quite sound and secured. It is also required to
be noted that the non-mentioning of the alleged incident of 15 th March,
2008 in the complaint Exh.136 is required to be viewed, that the
complainant P.W.9 had no grievance and as such, he had admitted about
the same in his cross-examination about reducing in writing the contents
which he had narrated to Constable Pawar, who had authored the first
information report. If the evidence of P.W.11 Sunil and P.W.9 Prakash is
read together, the material omissions, particularly as regards the demand
of Rs.4,50,000/-; the threat by accused no.1 Ramdeo which was allegedly
heard by P.W.11 Sunil on the speaker phone of mobile and non-
mentioning of the same by P.W.9 complainant in the complaint gives rise
to important material omissions. The case of the prosecution and
particularly the one alleged by the relatives of the deceased Chandarani
about addiction of accused no.1 Ramdeo to alcohol is concerned, in the
background of the financial status, other positive developments i.e. birth
of son Ganesh, this Court is required to reject the said contention as from
the evidence of P.W.5 Gorakshanath and P.W.6 Shamsundar, it appears
that having regard to the honesty and resultant growth in the business by
Ramdeo, both financial institutions had advanced him loan. In addition to
(77) cria437.11A
above, he has purchased the property in the name of his brother. The
evidence of P.W.11 Sunil Soni speaks of being party to each and every
conversation between Ramdeo and Chandarani on his mobile phone,
which he used to hear by putting speaker phone in on mode. It is also
noticed from his evidence that from 2004-07 he had not talked with
Chandarani either on phone or personally as he had gone to Ujjain to
work with his father. As such, the claim of the said witness that he knew
about the developments in the life of Chandarani and the approach of the
accused in the matter of demand of dowry is also required to be
disbelieved.
98. We are mindful that in cases resting on circumstantial evidence,
motive is an important circumstance and the prosecution is required to
prove motive, if it proposes to rely on it. Failure to establish motive
against the accused would receive into background if there is other strong
and reliable evidence. In the present case, we find that the prosecution
has utterly failed to establish that there was demand of dowry by accused
persons and on that count they were harassing deceased Chandarani. In
view thereof, in our considered view, the prosecution has failed to
establish the motive for death of Chandarani.
99. Having regard to the totality of evidence and taking into account the
legal position as discussed herein before, we have no hesitation to hold
(78) cria437.11A
that the prosecution has failed to bring home the guilt of the original
accused no.1/appellant in Criminal Appeal No.437 of 2011 for offence
punishable under section 302 of the Indian Penal Code. His conviction
and sentence deserves to be set aside. Consequently, the acquittal of
original accused nos.2 to 4 deserves to be maintained.
100. In the result, we pass the following order :
Criminal Appeal No.437 of 2011 by original accused no.1 Ramdeo
Pannalal Kadel stands allowed. The judgment and order of conviction,
dated 27th July, 2011, rendered by Additional Sessions Judge, Shrirampur,
in Sessions Case No.36 of 2008, is set aside and appellant/original
accused no.1 stands acquitted of the offence with which he was charged.
His bail bonds stand cancelled. Fine, if already paid, be refunded to him.
He be set at liberty forthwith, if not required in any other case.
Criminal Appeal Nos.442 of 2011 and 85 of 2012 by original
complainant and State respectively, questioning acquittal of original
accused nos.1 to 3 for offences punishable under sections 302 498-A
read with section 34 and section 120-B of Indian Penal Code and of
accused no.4 under sections 302 498-A read with section 34 of the Indian
Penal Code stand dismissed.
(N. W. SAMBRE, J) (S.S. SHINDE,J)
amj
