Harish S/O Shamsundar Chhangani ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 3584 Bom

                                                                                APEAL.93.14
                                               1

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                
                                   NAGPUR BENCH, NAGPUR.




                                                        
                                CRIMINAL APPEAL NO. 93 OF 2014




                                                       
         1] Harish s/o Shamsundar Chhangani,
            Aged about 34 years, Occ. Business,

         2] Shamsundar s/o Premsukhdas 




                                        
            Chhangani, Aged about 58 years, 
            Occ. Business,   
         3] Sau. Shilabai w/o Shamsundar 
            Chhangani, Aged about 52 years, 
                            
            Occ. Household,

             All R/o Shivaji Ves, Khamgaon,
             Taluka - Khamgaon,
      

             District Buldana.                              ....           APPELLANTS.
   



                      // VERSUS //

         The State of Maharashtra, 
         through its Police Station





         Officer, Police Station Khamgaon, 
         Tahsil Khamgaon, District Buldana.                 ....           RESPONDENT.

         None for the appellant,





         Mr. M.J. Khan, Additional Public Prosecutor for respondent.


                               CORAM :  B.R. GAVAI & V.M. DESHPANDE, JJ.     
                              DATED  :  JULY 5, 2016.


         JUDGMENT (PER B.R. GAVAI, J.)

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1] The accused/appellant being aggrieved by their conviction

and sentence for the offences punishable under Sections 498-A,

304B and Section 302 read with Section 34 of the Indian Penal Code

vide judgment and order passed by the learned Additional Sessions

Judge, Khamgaon dated 31.12.2013 in Sessions Trial No. 39/11,

have approached this Court.

2]

The prosecution case, in brief, is thus :-

The deceased Usha was resident of Jaisalmer

(Rajasthan). On 1.6.2009 she was married to accused no.1 Harish at

Jaisalmer. Accused nos. 2 & 3 are parents of accused No.1. After

marriage, deceased Usha started residing with the accused persons

at Khamgaon. It is the prosecution case that though in the marriage,

the parents of deceased Usha had given 8 tola gold, 50 total silver,

clothes and other articles, the accused persons were always making

a grievance that the other items like T.V., Washing Machine, etc.

were not given. As such, the parents of Usha came to Khamgaon for

purchasing the aforesaid articles and gave the same to accused

persons.

3] It is further the prosecution case that after 2-3 months of

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the marriage, Usha had visited her parents' house at Jaisalmer. She

had made a grievance that the accused used to ill-treat her saying

that certain items were not given in the marriage. After one month,

Harish took her back. Thereafter again after a period of 2-3 months

Usha informed her parents on telephone that the accused persons

were demanding an amount of Rs.50,000/- and ill-treating her for

money. As such, in November, 2009 Usha's father Dhanraj and his

friend Banwari came to the house of accused and gave Rs.10,000/-

to the accused Harish. It is the prosecution case that even thereafter

the ill-treatment continued. It is the prosecution case that the

accused even went to the extent of physically manhandling the

deceased.

4] It is the further prosecution case that in February, 2010

Usha visited her parents' home. Again at that time she complained

about the ill-treatment. In March, 2010 accused Harish went to fetch

Usha. From there, accused Harish, Usha and her parents went to

Kumbh Mela at Haridwar and then to Bikaner. At that time, Dhanraj

gave an amount of Rs.20,000/- to accused Harish. From there, Usha

and Harish came back to Khamgaon.

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5] It is the further prosecution case that even after this, the ill-

treatment continued and as such, on 4.6.2010 Usha's parents, sister

Chanchal (PW.12) and Shrigopal - husband of Chanchal came from

Jaisalmer and other relatives Akash, Harish, Pramod and Jaideo

came from Nagpur. They assembled in Prem Residency Hotel,

Khamgaon. From there, they went to house of accused. Usha told

her parents that accused persons used to beat her for balance

amount of Rs.20,000/-. Usha's parents and relatives requested the

accused not to beat Usha and assured to pay balance amount very

soon.

6] It is the further prosecution case that in spite of that, the

accused persons continued to ill-treat Usha. On 6.4.2011 Usha told

her mother that 2-3 days earlier, her husband Harish accused no.1

and her mother-in-law accused no.3 beat her in a lane of her house

and took her beating in the house. On 8.4.2011 accused Harish

informed Usha's father Dhanraj that Usha had died. Dhanraj gave

this message to Akash and Harish Purohit and requested them to go

to Khamgaon and make enquiry about Usha's death.

7] On 9.4.2011 Akash, Harish and their friends came to

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Khamgaon and saw dead body of Usha in Government Hospital,

Khamgaon. They saw injuries on the dead body of Usha and found

that death was suspicious. Akash informed about the same to

Dhanraj and as per his instructions, lodged report below Exh. 77 in

Shivajinagar Police Station, Khamgaon. On the basis of the report,

PSI Mapore registered Crime No. 22/11 under Sections 498-A & 304-

B of the Indian Penal Code.

8] In the meantime, when on 8.4.2011 the deceased was

taken to Government Hospital, Khamgaon by accused, Dr. Rajendra

Chavan (PW.9) examined her at 4.40 p.m. and declared her brought

dead. Accordingly, he issued memo below Exh. 84 to Police Station.

On the basis of the said memo, A.D. No. 13/11 under Section 174 of

Criminal Procedure Code came to be registered. The investigation

was handed over to A.S.I. Kakade PW.15. He carried out the

preliminary investigation including spot panchnama, inquest

panchnama, etc. and handed over the documents to P.I. Mohd. Jahir

PW.14.

9] On the basis of the FIR registered, all the three accused,

i.e. Harish - husband of the deceased, and accused nos. 2 & 3

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father-in-law and mother-in-law of the deceased came to be arrested.

At the conclusion of investigation, a charge-sheet came to be filed

against the accused in the Court of learned J.M.F.C., Khamgaon.

Since the case was exclusively triable by the learned Sessions

Judge, the same came to be committed to the learned Sessions

Court, Khamgaon. The learned trial Judge framed the Charge

below Exh. 39 for the offence punishable under Sections 498-A, 304-

B and 302 read with Section 34 of the Indian Penal Code. They

pleaded "not guilty" and claimed to be tried. At the conclusion of the

trial, the learned trial Judge passed an order of conviction as

aforesaid and sentenced all the three accused to suffer R.I. for three

years and to pay a fine of Rs.500/- and in default to suffer R.I. for

three months for the offence punishable under Section 498-A read

with Section 34 and to suffer R.I. for seven years for the offence

punishable under Section 304-B read with Section 34 of the Indian

Penal Code. However, the accused nos. 2 & 3 were acquitted for the

offence punishable under Section 302 and only the accused no.1 was

convicted for the said offence and sentenced to suffer imprisonment

for life and and to pay a fine of Rs.500/- and in default to suffer R.I.

for three months. Being aggrieved thereby, the present appeal has

been filed.

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10] Since none represented on behalf of the appellant, we

have scrutinized the entire evidence available on record with the

assistance of the learned Additional Public Prosecutor.

11] Shri M.J. Khan, the learned Additional Public Prosecutor

for the respondent/State, submits that the learned trial Judge has

rightly recorded the order of conviction. It is submitted that the death

of the deceased has occurred in the house which was inhabited by

the present appellants. It is, therefore, submitted that in view of the

provisions of Section 106 of the Indian Evidence Act, the onus would

be on the present appellants to establish as to how the death of the

deceased has occurred in their house.

12] In view of the evidence of PW.10 Dr. Anil Ramratan

Sarode and the post-mortem report below Exh. 86, we find that no

interference is warranted with the finding of the learned trial Judge

that the death of the deceased is homicidal.

13] Undoubtedly, the present case is a case based on

circumstantial evidence. The law with regard to conviction on the

basis of circumstantial evidence is very well crystallized by Their

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Lordships of the Apex Court in the case of Sharad Birdhichand

Sarda .vs. State of Maharashtra reported in (1984) 3 SCC 116. It

will be appropriate to refer to paragraph nos. 153 & 154 of the said

judgment, which read as under :-

"153. 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 & Anr. v. State of Maharashtra (1973) 2 SCC 793 :

where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] 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, they should not be explainable on any other hypothesis except that the accused is guilty,

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(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."

"154. These five golden principles, if we may say so,

constitute the panchsheel of the proof of a case based on circumstantial evidence."

It could thus clearly be seen that as held by Their Lordships of the

Apex Court, it is necessary for the prosecution to prove each and

every circumstance beyond reasonable doubt. Not only that, the

prosecution has to establish a chain of circumstances proved beyond

reasonable doubt, which leads to no other conclusion than the guilt of

the accused. It has been held that every possible hypothesis except

the guilt of the accused has to be excluded. What is required to be

established is that in all human probability, the act must have been

done by the accused alone.

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14] In the light of these principles, we will examine the material

placed on record. We will first examine the case of the prosecution in

so far as the offences punishable under Sections 498-A and 304-B of

the Indian Penal Code are concerned, inasmuch as all the three

accused have been found to be guilty for the said offences. For

establishing the offence under Section 498-A, the prosecution will

have to establish that the husband or the relative of the husband of a

woman, subjects the woman to cruelty. Cruelty has been defined as

any wilful conduct which is of such a nature as is likely to drive the

woman to commit suicide or to cause grave injury or danger to life,

limb or health (whether mental or physical) of the woman, or

harassment of the woman where such harassment is with a view to

coercing her or any person related to her to meet any unlawful

demand for any property or valuable security or is on account of

failure by her or any person related to her to meet such demand. For

establishing the offence under Section 304-B of the Indian Penal

Code, the prosecution will have to firstly establish that the death of a

woman is caused by any burns or bodily injury or occurs otherwise

than under normal circumstances within seven years of her marriage.

It will have to be further established that soon before the death she

was subjected to cruelty or harassment by her husband or any

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relative of her husband for or in connection with any demand for

dowry.

15] The evidence with regard to demand of dowry and the ill-

treatment on the said count is mainly by the parents of the deceased

and her relatives. However, merely because the said witnesses are

related to deceased cannot be a ground to discard the testimony. If

their evidence is found to be trust-worthy, reliable and cogent,

conviction could be awarded on the basis of such a testimony.

PW.13 Dhanraj is the father of the deceased. His evidence is below

Exh. 91. He has deposed in his evidence that Usha was married to

accused no.1 on 1.6.2009. In the marriage, he had given 8 tolas

gold, 50 tola silver, clothes and household articles. After 20 to 22

days of marriage, he had purchased T.V., Washing Machine and

steel almirah from Khamgaon and gave to the accused persons. He

states that after 2 to 2½ months of marriage, Usha visited his house.

She stayed in his house for about one month. That time, she told that

the accused persons used to ill-treat her because in the marriage,

bed was not given. After one month, accused Harish came and took

her. After 2 to 2½ months of it, Usha told them on telephone that

accused persons were beating her for Rs.50,000/-. Thereafter, in

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November, 2009 he and Banwari went to house of accused persons.

That time, all accused were present in house. He gave Rs.10,000/-

to Harish and told that remaining amount he shall arrange. He stated

that in spite of this, accused used to beat and ill-treat her. In

February, 2010 Usha had come to his house at Jaisalmer. Usha told

them that accused persons were torturing her for money. In March,

2010 they went to Kumbh Mela along with accused Harish. He gave

Rs.20,000/- to Harish. Usha and Harish returned back to Khamgaon.

After 2 to 2½ months, again Usha gave telephonic call. She informed

that unless we bring money the accused persons may do wrong with

her life. This fact was informed by telephone to his relatives at

Nagpur and Jaisalmer. Thereafter he, his wife, daughter Chanchal

and her husband came from Jaisalmer and Akash, Harish, Pramod

and Jay came from Nagpur to Khamgaon. They stayed in Prem

Residency Hotel, Khamgaon. All of them went to house of accused

persons. Usha told them that for remaining amount of Rs.20,000/-

accused persons were beating her. He requested the accused

persons not to beat Usha and assured them that he would pay

remaining amount of Rs.20,000/- very soon. He states that Usha

phoned him on 6.4.2011 and told her mother that her husband Harish

and mother-in-law beat her and took her from a lane in her house by

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beating. He states that on 8.4.2011 at around 5 to 5.30 p.m. accused

Harish told him on telephone that Usha had expired. He informed

about the same to his relatives Akash and Harish at Nagpur and told

them to go to Khamgaon and make enquiry as to how Usha died. On

9.4.2011 Akash and Harish informed that the death of Usha was

suspicious. He, therefore, requested to lodge a report to Police

Station.

16] PW. 13 Dhanraj has been thoroughly cross-examined.

However, the perusal of cross-examination would reveal that there

are material contradictions and omissions regarding the role of

accused nos. 2 & 3. However, in spite of thorough cross-

examination, his testimony in so far as the demand and ill-treatment

by the accused no.1 Harish is concerned, the same has remained

unshaken.

17] PW.8 Meena is the wife of PW.13 Dhanraj and the mother

of the deceased. The perusal of her evidence would also reveal that

her evidence corroborates the testimony of PW.13 Dhanraj in so far

as the role of accused no.1 Harish is concerned.

18] PW.12 Chanchal is the sister of the deceased. Her

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evidence would also corroborate the evidence of PW.13 Dhanraj and

PW.8 Meena in so far as the ill-treatment by the accused no.1 Harish

is concerned.

19] PW.11 Manish is the maternal cousin of the deceased. He

has also supported the testimony of the father and mother of the

deceased.

20] PW.7 Banwari is the friend of PW.13 Dhanraj. He

corroborates the version of PW.13 regarding going to Khamgaon to

pay money to the accused. He has stated in his evidence that in his

presence Dhanraj had given an amount of Rs.10,000/- to Harish.

21] PW.6 Akash is the first informant and also the cousin of

the deceased. He has also deposed regarding the demand of

money, ill-treatment to the deceased by accused no.1 and his going

to Khamgaon along with PW.13 Dhanraj and the other relatives.

22] In that view of the matter, we find that the testimony of

these witnesses establishes beyond reasonable doubt that the

appellant/accused no.1 used to ill-treat the deceased on account of

demand of dowry and non-fulfilment of the same. However, we find

that the allegations in this respect against the accused nos. 2 & 3 are

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vague and general in nature. In that view of the matter, we find that

though the conviction of the accused no.1 Harish for the offence

punishable under Section 498-A of the Indian Penal Code deserves

to be upheld, the prosecution has failed to prove the case beyond

reasonable doubt against the accused nos. 2 & 3 and as such, they

are entitled to be acquitted for the said charge.

23]

In so far as the conviction under Section 304-B of Indian

Penal Code is concerned, as already discussed hereinabove, though

the prosecution has been in a position to establish the cruelty or

harassment to the deceased soon before her death, only in so far as

accused no.1 is concerned and not against the accused nos. 2 & 3.

Undisputedly, the death of the deceased has occurred within seven

years of the marriage. In that view of the matter, we find that though

the conviction for the offence punishable under Section 304-B of the

Indian Penal Code deserves to be confirmed in so far as the accused

no.1 Harish is concerned, the accused nos. 2 & 3 are entitled to be

acquitted for the charge of the said offence.

24] That leaves us with the conviction of the accused for the

offence punishable under Section 302 of the Indian Penal Code. The

learned trial Judge has basically recorded the order of conviction

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against the accused no.1 on the basis of the judgment of the Apex

Court in the case of Trimukh Kirkan .vs. State of Maharashtra

reported in 2007 Cri. L. J. 20. No doubt that if a particular fact is

within the special knowledge of an accused, in view of the provisions

of Section 106 of the Indian Evidence Act, the onus would lie on such

an accused to explain the same. However, that does not absolve the

prosecution for discharging its burden to first establish the case

beyond reasonable doubt. It will be appropriate to refer to paragraph

no. 151 of the judgment of the Apex Court in Sharad Birdhichand

Sarda .vs. State of Maharashtra (cited supra), which reads as

under :-

"151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite

law and no decision has taken a contrary view. What some cases have held is only this : where various links in a chain are in themselves complete, then a false plea or a

false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not

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accepted by a court."

In the light of this guiding principle, let us examine the evidence as

established by the prosecution. The cross-examination of PW.1

Pramod Purohit would itself show that it is not the accused alone who

was residing in the company of the deceased. The perusal of the

evidence of this witness would reveal that the accused No. 2

Shamsundar Chhangani has three sons including Harish. At the time

of incident, accused Harish and his elder brother were married. They

were all living jointly in the house of the accused. From the perusal of

the entire evidence led on behalf of the prosecution, it cannot be said

that the prosecution has proved beyond reasonable doubt that soon

prior to the death of the deceased occurring, the accused no.1 Harish

and the deceased were seen in the company of each other. On the

contrary, the evidence of prosecution itself would show that apart

from the present three accused, at least three other persons, i.e. the

two brothers of the accused No.1 and the wife of one of the brothers

were residing in the same house.

25] In so far as the judgment of the Apex Court in the case of

Trimukh Kirkan (cited supra) on which the learned trial Judge has

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relied is concerned, in the said case the appellants therein had

created a scene to show that the death of the deceased was not by

strangulation and had also claimed that she had died due to a snake

bite. The said case was a case of no explanation regarding the injury

caused by strangulation to the deceased and the case of making out

a false case. However, in the present case, it is not the case of the

accused not giving any explanation. The accused persons have

examined three witnesses as defence witnesses. By now, it is a

settled principle of law that merely because the witnesses are

defence witnesses, their testimony should not be discarded. The

defence witnesses are also entitled to the same treatment as that of

the prosecution witnesses. In the light of this principle, we will have

to examine the evidence of the defence witnesses.

26] DW.1 Murlidhar Madanlal Rathi, who is the employer of

the accused no.1 states that the accused Harish was working in his

shop since the year 2000. He used to come in the shop at around

9.45 to 10 a.m. and go back at around 6.30 p.m. He used to bring

his tiffin with him and take lunch in the shop. He has further stated

that he himself used to go home at around 11 a.m. and used to come

back at about 12 noon to 12.30 p.m. leaving the shop in trust of

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accused Harish. He further states that on 8.4.2011 Harish had come

to his shop as usual at around 9.45 to 10 a.m. At about 4 p.m. Harish

received phone of his father. While talking on phone Harish was

upset. Harish told him that his wife was taken to Government

Hospital by his father. So he and Harish both went to Government

Hospital, Khamgaon and they saw that Usha had died. After

sometime, this witness had returned to his shop. It could further be

seen that the witness has also brought cash book. He has identified

the handwriting and deposed that the cash-book till 4 p.m. on

8.4.2011 was written in the handwriting of Harish. The same is also

exhibited as Exh. 124. In the cross-examination, a specific

suggestion is given to him by the learned A.P.P. that when he

returned to shop at around 12 to 12.30 p.m. Harish was not in the

shop. Specific suggestions given to this witness that Harish had left

the shop have been denied by this witness. It could thus be seen that

the oral testimony of this witness is also corroborated by the

documents which are exhibited.

27] The perusal of evidence of DW.2 Pushpalata Nandkishor

Purohit, who is the President of the community to which the deceased

and appellant belonged would also show that in the house of accused

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no.2, accused nos. 2 & 3, their three sons and two daughters-in-law

resided jointly. The name of the elder son is Bharat, middle son is

Harish and younger son is Girish. The name of wife of Bharat is

Vanita. She states that the date on which Usha died was the last day

of Gangaur Utsav. On the last day of Gangaur Utsav all the women

and girls of their community take procession for immersion of

Gangaur. She states that it was decided that for immersion of

Gangaur all the ladies of community would assemble in her house at

4 p.m. Vanita came to her house at around 4 p.m. and told that Usha

was making preparation to come to her house. When Usha did not

come for long time, she gave call to Usha. Usha did not give any

reply. At the same time, accused no.2 came from the shop. She told

accused no.2 that Usha was not giving reply. Accused no.2 went in

the room of Usha and gave her call. She went in room and saw that

Usha was lying in the room on the floor. Accused no.2 sprinkled

water on Usha. There was no movement. So, accused no.2 gave

phone call to Harish and other relatives and called them. Thereafter

they took Usha to Government Hospital. At that time, accused no.3

was present in a temple. After one hour, they got message that Usha

was dead. This witness has also been thoroughly cross-examined. A

specific suggestion was given that Vanita had gone to her parents'

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house prior to 3-4 months. However, the same is denied.

28] We find that in view of evidence of DW.1 which is duly

corroborated by DW.2, it cannot be said that the defence of the

appellant no.1 that he was not in the house between 9.45 a.m. till 4

p.m., i.e. when he came to know about the death of the deceased is

not plausible.

29] As held by the Apex Court, what the prosecution is

required to establish is that the circumstances concerned "must" or

"should" and not "may be" established. The Apex Court has held that

there is not only the grammatical but legal distinction between may be

proved or must or should be proved. As has been held in catena of

cases that however strong a suspicion be, the same cannot take the

place of the proof beyond reasonable doubt. As already discussed

hereinabove, the prosecution has utterly failed to lead any evidence

to establish that shortly before the death of the deceased, it was only

the accused no.1 who was in the company of the deceased. On the

contrary, the evidence of the prosecution witnesses as well as the

defence witnesses would establish that in addition to the three

accused in the present case, the house was inhabited by at least

three other persons. Not only that, the evidence of defence

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witnesses would reveal that the accused was in the shop and he

came to know about the incident after he received a telephonic call

from his father and thereafter went to the hospital. In that view of the

matter, we find that the accused no.1 would be entitled to benefit of

doubt and the conviction under Section 302 of the Indian Penal Code

would not be tenable.

30]

In the result, the Criminal Appeal is partly allowed.

Accused Nos. 2 and 3 are acquitted of all the charges, charged with.

The conviction of accused No. 1 Harish for the offence

punishable under Section 302 of the Indian Penal Code is set aside

and he is acquitted of the charge for the said offence. The conviction

of the appellant/accused No.1 for the offences punishable under

Sections 498-A and 304-B of the Indian Penal Code is maintained

and the sentence and fine imposed by the learned trial Judge for the

said offences is maintained.

Rest of the order including the order directing the

substantive sentences to run concurrently is maintained.

Bail bonds of accused/appellant nos. 2 & 3 shall stand

cancelled.

         J.                  JUDGE                                               
                                                                                JUDGE .