Bombay High Court
[email protected] Laxman Ghantalwad ... vs The State Of Maharashtra on 10 August, 2016
Bench: A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 77 OF 2013
1. Vilas @ Rajesh Laxman Ghantalwad .. Appellants
Age. 24 years, Occ. Munim [original
accused
2. Laxman Hari Ghantalwad Nos.1to3]
Age. 57 years, Occ. Post Master,
3. Sow. Anusayabai w/o. Laxman Ghantalwad
Age. 55 years, Occ. Household
All R/o. Somthana, Tq. Umri,
Dist. Nanded.
Versus
The State of Maharashtra .. Respondent
Through : Police Station, Umri.
Mr. P.K. Chavare, Advocate for the appellants.
Mr. R.B. Bagul, A.P.P. for respondent/State.
CORAM : A.V.NIRGUDE &
V.L. ACHLIYA,JJ.
RESERVED ON : 09.06.2016
PRONOUNCED ON : 10.08.2016
J U D G M E N T [PER : A.V. NIRGUDE,J.]:-
1. This appeal challenges judgment and order dated
28.01.2013 passed by the learned Additional Sessions
Judge, Bhokar, Dist. Nanded, convicting the appellants in
Sessions Case No.33 of 2012 for the offence punishable
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under sections 302, 304-B, 498-A and 201 read with
section 34 of the Indian Penal Code and sentenced to
suffer life imprisonment and other sentences for various
sections. For the sake of convenience, the appellants
would be referred to as accused Nos.1 to 3 in this
judgment.
2.
Accused No.1 is son of accused Nos.2 & 3. The
victim of this crime was Sapna-wife of accused No.1.
The charge framed against the accused indicated that they
were charged for both the offences such as murder as well
as causing dowry death.
3. In order to prove its case, the prosecution
examined in all nine witnesses. The facts that emerged
from the depositions and other material that came on
record from prosecution side can be narrated as under :-
4. P.W.3-Janabai stated that Sapna was her daughter
and was married to accused No.1 in 2008. Sapna even
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delivered a boy child and for the purpose of delivery she
resided with her for six months. Thereafter, Sapna
started telling her that she was harassed for not
bringing good clothes and other gifts. Hearing this,
P.W.3-Janabai visited the accused. At that time, Sapna
told her that the accused were demanding Rs.50,000/- for
buying a motor-cycle. P.W.3-Janabai showed her inability
to pay such amount. The harassment to Sapna, therefore,
continued. Sapna became pregnant. Again on 4th May, 2012
at about 8.30 a.m., Sapna called P.W.1-Janabai and
informed her that her parents-in-law were harassing her
for demand of Rs.50,000/-. P.W.3-Janabai promised her
that she would come meet her at Somthana and for taking
Sapna back to her house. Since, it was summer time, she
promised her that she would come later in the day. At
about 3.30 p.m. P.W.3-Janabai received another telephone
call from village Somthana informing her that Sapna died
due to hanging. Hearing this, P.W.3-Janabai and her
relatives went to Somthana and saw Sapna hanging with
rope in her house. At that time, one Sushila - sister-
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in-law of Sapna was present in her house. Accused were
not present there. P.W.3-Janabai saw injury marks on
Sapna's body and suspected that Sapna was killed. She,
therefore, went to Police Station and filed her
complaint.
5. In the cross-examination P.W.3-Janabai admitted
that there are few houses of Muslim persons near the
house of the accused, but she did not make enquiry with
the neighbours about the incident. She also admitted
that she did not in the past file any complaint to Police
or any other authority against the accused about Sapna's
harassment and demands.
6. P.W.4-Sonubai is elder daughter of P.W.3-Janabai
and Sapna's sister. She too reiterated that after she
received telephone call from village of the accused on
04.05.2012, they came to village Somthana and saw Sapan's
dead body hanging in her house. She also stated that
Sushila - sister-in-law of Sapna was present in the house
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and she ran away after seeing them. She also noticed
certain injury marks on Sapna's body.
7. P.W.7 is photographer Shankar Sitawad. He
stated that on 4th May, 2012, Police Inspector Mairal
called him for taking photographs of the scene of
occurrence. Accordingly, he went to the spot and saw
Sapna hanging inside the house. He took nine photographs
and got them printed.
8. P.W.9-Ashok Mairal stated that on 4th May, 2012,
he was on duty at Umri Police Station as Police
Inspector. He received telephone call from Police Patil
of Somthana informing him that a woman had died by
hanging at village Somthana. He took entry of this
information in station diary and went to the spot along
with other police officers. He saw Sapna's dead body in
hanging condition in the house of the accused. He also
marked some injuries on the Sapna's body. He started
investigation, got scene of offence photographed. He
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also drew scene of occurrence panchanama. He, thereafter,
sent the dead-body for post-mortem in Government
Hospital, Umri. He then recorded statement of
complainant-Janabai (P.W.3) and registered offence. The
scene of occurrence panchanama indicates that the house
of the accused consisted of three rooms. On East side,
there was a drawing room. On the West side, there was
bed room, where Sapna was found hanging. On the northern
side, there was kitchen. Most of the houses adjoining
the house of the accused belonged to Muslim persons. In
the bed-room the dead body was found. The feet of the
deceased were almost touching the floor of the room. At
a distance of 2 feet from the dead-body, a folding chair
was found in sitting condition. On the floor,
Mangalsutra and broken pieces of bangles were found.
9. P.W.8-Dr.Anis Shaikh stated that on 4th May,
2012 while he was working as a Medical officer in Rural
Hospital, Umri, he received Sapna's dead body for post-
mortem examination. On 5thMay,2012, he conducted examined
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at about 8.30 a.m. He found following injuries on the
dead-body.
(1) Bluish contusion over left thigh.
(2) Bluish contusion over right thigh and
buttock 40 x 10 cm, 10 x 5 cm approx.
(3) Bluish contusion over right calf 15 x 8 cm.
(4) Redness over both arms and forearms.
(5) Peri-orbital contusion over left eye
approx. 20 x 10 cm.
. In addition to this, he also found deep ligature
mark over neck from right mastoid and above thyroid
prominence and up to left mastoid and over back from
right mastoid and left mastoid. Ligature mark was found
in one plane parallel to ground in standing position. He
opined that the ligature mark he described was possible
only in case of strangulation and not in case of hanging.
He also opined that the ligature was possible if victim
is strangulated by rope. He also opined that in this
case the victim was strangulated and then apparently
hanged. In cross-examination, he further explained that
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in-case of strangulation, the ligature mark would be
parallel, but in case of suicide it would be in the shape
of second day moon.
10. On the basis of this evidence, the prosecution
asserted that they could prove their case against the
accused. On the other hand, learned Counsel for the
accused asserted that there are number of lacunae in the
prosecution case and so, the accused deserved benefit of
doubt. At the time of argument, we discussed the case
with the learned Counsels and following question arises
for our consideration.
(i) Whether Sapna died homicidal death or
suicidal death?
(ii) If the answer is homicidal, who killed
Sapna?
11. We narrated the gist of evidence above, which
indicates that there is no eye-witness account available
on record. Even the neighbours did not come forward to
state as to what they heard or saw prior to the discovery
of the dead-body. The Police Patil, who made phone call
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to the Police, did not come forward to depose as to how
he learnt about the death. There is no material on
record to suggest that someone first noticed the Sapna's
dead body and alerted others. P.W.3-Janabai stated that
she received telephone call from the village that her
daughter died, but did did not elaborate as to who made
such telephone call to her. This means that the
information about the dead-body hanging inside the house
of the accused came out from an unknown source. No one
stated that this information was supplied by the accused.
No witness came forward to say that he or she saw the
accused inside the house during that day. No one came
forward to suggest that he or she saw the accused or any
of them coming out of the house or going inside the house
during that day. As said above, the dead-body was found
at about 03.00 p.m. It was afternoon. Till then number
of persons including neighbours could have seen or heard
the accused either inside the house or coming out of the
house. No one comes before the Court to state that the
house was locked from outside or inside. P.W.3-Janabai,
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the complainant stated that she walked inside the house
and found the dead-body. The house was thus open. She
also stated that one Sushila was present in the house.
P.W.3-Janabai did not ask Sushilabai as to how Sapna died
or where accused persons had gone. The evidence thus
clearly suggests that throughout the day till 3.00 p.m.
the accused were not seen in and around the house.
12. Now we go to the question which posed for our
determination. There is no difficulty in answering
question No.1. We have no doubt in our mind that Sapna
died homicidal death. She was strangulated and done to
death. It was clearly a homicidal death. The
perpetrator or someone else thereafter hanged Sapna's
dead body by ceiling to create an impression that she
committed suicide.
13. The next and most important question in this
case is - Who killed Sapna?
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14. The circumstances that are brought on record
creates strong suspicion against the accused. The accused
persons were staying with Sapna in the same house where
her dead body was found and thereafter we must first come
to conclusion on facts that it was a case of custodial
death. We must find out the probable time of death.
P.W.8-Dr.Shaikh did not state possible time of death. He
simply stated that on 4th May, 2012, he received dead-
body, which he got in mortuary and conducted post-mortem
on next date in the morning at 8.30 a.m. He did not
state as to when, prior to how many hours, the death
might have occurred. We carefully went through the post-
mortem report. The Medical Officer had ample opportunity
to state as to what was the probable time of death on the
basis of last meal or the contents of stomach. But this
part of post-mortem report (Column No.21) is left blank.
In Column No.11 the Medical Officer noted that he found
rigar mortis present in both upper and lower limbs. He
specifically noted that rigar mortis was slight. No one
asked the Medical Officer from the state of rigar mortis
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as to at what time Sapna could have died. We have,
therefore, no answer to the question about possible time
of Sapna's death. We can at the most say that Sapna died
sometime prior to 3.00 p.m. Whether she was killed in the
morning on that day or during previous night is left
unanswered.
15.
The defence has examined four witnesses to
establish that the appellants have left the house in
between 9.00 a.m. to 10.00 a.m. to attend their duties.
Appellant No.1 has claimed that at the relevant time he
was working as a Sales-man in the shop of (D.W.4) Gajanan
Bachewar and on the day of incident as usual he left the
house at around 8 a.m. to report on duty at 9 a.m. In
support of the case, the appellants have examined (D.W.4)
Gajanan Bachewar, whose testimony is at Exh.78, who has
fully supported the case of the defence. He has deposed
that on the day of incident, appellant No.1 came to his
shop at 9.00 a.m.. At about 2.20 p.m. he received phone
call from the President of Tantamukhi of village
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Somthana. He informed him that the wife of appellant
No.1 hanged herself and requested to send accused No.1.
He, therefore, took accused No.1 to his house on his
motor-cycle. The testimony of this witness remained
intact during cross-examination and the facts deposed by
him were even not challenged and disputed.
16.
On the same line, in support of the case of
appellant No.2 that he left the house in the morning to
report on duty at Umri Post Office and he remained there
till 12 noon, the defence has examined Digambar Singankar
(D.W.1), the Sub-Post Master, posted at Umri, where
appellant No.2 was posted as a post-man. He has deposed
that on the day of incident, appellant No.2 came to Umri
Post Office between 11.00 a.m. to 12.00 noon. He has
deposed that appellant No.2 was looking after the
transactions of Bothi Branch as well as Umri Branch. The
distance between the two branches is about 15 kms. On
4th May, 2012, accused No.2, came to Umri Post Office at
11.00 a.m. and he was there till 12.00 noon. He left the
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office of Umri Post Office at 1=00 p.m.
17. In order to support the case of the appellants
that they left the house as usual on 4th May, 2012 at
about 7.00 a.m. to 8.00 a.m., the defence has examined
Chandbi (D.W.2) and Begumbi (D.W.3), the neighbours of
the appellant. Both of them have deposed that the accused
persons used to leave the house at about 8.00 a.m. to
9.00 a.m. and used to return in between 6.00 to 7.00 p.m.
and on the day of incident they left the house as usual
and Sapna was alone in the house. The testimony of these
witnesses was also not shattered in the cross-
examination.
18. The prosecution must show that Sapna died during
such time of the day when either of the accused was
present in the house. In other words, the prosecution
ought to have proved that Sapna's death occurred during
previous night or during early hours of the day and at
such time accused or any one of them was present in the
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house. If such was the case of the prosecution, the
principal of res ipsa loquitur would arise against the
accused and it is only then they were under obligation to
explain as to how Sapna died. It is only then one may
say that the accused had special knowledge of the
incident and it is they alone could explain the same.
19.
The prosecution evidence does not explain
possible time of Sapna's death. The prosecution did not
even bring on record that during the day or even during
the previous night the accused were present in the house.
A neighbour could have examined, who would have deposed
that, in the early morning he saw accused present in the
house and one by one they left their house. Had this
been brought on record, the prosecution could have proved
that the accused were present in the house during
previous night. Even this evidence is absent. We cannot,
therefore, assume that since it was a house of the
accused, they were present in the house till Sapna was
done to death. The presence of the accused in the house
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at the relevant time ought to have been proved with
reasonable certainty. In absence of such evidence, we
are not able to draw conclusion that this is custodial
death and the accused are answerable. In other words, it
can be said that while Sapna was alone in the house,
someone came and killed her. A feeble attempt is made by
the prosecution to connect accused No.1 with the
incident. After his arrest, it is stated that he led
police to discover stick from his house. The discovery
of such stick would not take the case of prosecution
further because such sticks are found in most of houses
of villages. The police ought to have sent the accused
for medical examination soon after their arrest (they
were arrested soon after registration of offence). Had
they been examined medically within 24 hours from the
discovery of dead body, the Medical Officer could have
found some injuries on their person which would have
indicated that the accused were involved in a scuffle
etc. The victim suffered number of injuries. Assuming
that the accused or one of them strangulated the victim
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using rope, the victim would have struggled. Such scuffle
would have caused minor injuries on the person of
assailant/s. The Investigating Officer did not
investigate this part of investigation at all. When the
case was tried before the Sessions Court, necessary
witnesses were not examined to establish presence of the
accused inside the house at the relevant time.
20. The next question that come for our
consideration is :-
(iii) Whether the prosecution could prove that
the accused committed Sapna's dowry death?
21. In order to answer this question, we must also
appreciate the evidence regarding alleged harassment over
alleged dowry demands. It is a fact that Sapna was
married in 2009 and her dead body was found in 2012. This
was within four years old marriage. During these four
years Sapna gave birth to a boy, who at the time of
incident was three years old. In such background we have
to appreciate the bald allegation that the accused were
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demanding Rs.50,000/- for buying a motor-cycle. Such
allegation requires some sort of corroboration. This
allegation could have been corroborated by corresponding
complaint made to either elders of the
community/relatives or Police. P.W.3-Janabai admitted
that she made no complaint about this harassment to
anyone. In view of this answer, one may at the most come
to a conclusion that there could have been some
harassment to the victim but it was not severe so as to
prompt a complaint to some authority including elders of
the community etc.
22. Number of injuries found on Sapna's dead body
clearly indicated that she was first beaten-up before she
was strangulated. If in-laws were responsible for this
beating, in last four years of marriage, there was
possibility that Sapna had undergone similar ill-
treatment. In other words, the accused must have beaten
up Sapna earlier also. Had Sapna been beaten up so
severely on previous occasion, she would have certainly
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mentioned it to her mother or father (It has come on
record that Sapna's father was working as a Watchman in
irrigation department and therefore had some status in
the society). P.W.3-Janabai in her deposition stated that
Sapna had told her that accused were harassing her.
P.W.3-Janabai could have easily elaborated as to what
harassment consisted of. P.W.4-Sonubai the elder sister
of Sapna could have also stated as to whether Sapna was
previously beaten up utilising stick etc. by the accused
or any one of them. It, therefore, appears to us that
the incident of assault utilising stick was rather
unusual. We are, therefore, inclined not to accept the
allegation that Sapna was harassed over demand of
Rs.50,000/-. One of the main ingredients of Section 304-B
is that the prosecution must prove that soon before death
of the victim, she was subjected to cruelty or harassment
by the accused. In absence of corroborating material, we
are unable to draw such conclusion. It is, therefore,
clear that in this case Sapna died unnatural death within
seven years of her marriage, but it cannot be said that
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she was subjected to cruelty by the accused in connection
with any demand of dowry.
23. We are, therefore, inclined to allow this
appeal.
O R D E R
(i)
The Criminal Appeal is allowed.
(ii) The judgment and order passed by
learned Additional Sessions Judge, Bhokar dated
28.01.2013 in Sessions Case No. 33 of 2012 is
hereby quashed and set aside.
(iii) The appellants are acquitted of the
offences with which they were charged and fine
amount, if any, deposited by the appellants be
refunded to them.
(iv) Since appellant No.1 - Vilas @ Rajesh
s/o. Laxman Ghantalwad and appellant No.2-Laxman
s/o. Hari Ghantalwad are in jail, they be
released from custody forthwith, if they are not
required in any other case.
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(v) Bail bond of appellant No.3-Anusayabai
w/o. Laxman Ghantalwad stands discharged.
[V.L. ACHLIYA,J.] [A.V.NIRGUDE,J.]
snk/2016/JUN16/crap77.13ok
