Bombay High Court

Chetan Dashrath Gade And Anr vs The State Of Maharashtra on 15 March, 2021

Bench: S.S. Jadhav, N. R. Borkar

                                                                        apeal-1557.18.doc




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION
                    CRIMINAL APPEAL NO.1557 OF 2018
 1. Chetan Dashrath Gade
    Age 28 years, Occ.- Agriculturist

 2. Akshay Dashrath Gade
    Age 24 years, Occu. - Agriculturist
    Both R/o. Shinvad Shivar,
    Tal. Dindori, Dist. : Nashik.
    (Presently detained at Nashik Road
    Central Prison, Nashik.                            ... Appellant (Orig. Accused
                                                         Nos.1 and 3)
 V/s.
 1. The State of Maharashtra                           ... Respondent/ Orig.
                                                         Complainant
                                -------------------
 Mr. V.B. Shivarkar, Advocate for the Appellant.
 Ms. P.P. Shinde, APP for the Respondent - State.
                               ---------------------
                               CORAM : SMT. SADHANA S. JADHAV &
                                       N.R. BORKAR, JJ.

JUDGMENT RESERVED ON : 5th FEBRUARY 2021 JUDGMENT PRONOUNCED ON : 15th MARCH 2021

JUDGMENT : (Per Sadhana S. Jadhav, J.)

1. The present appeal seeks to challenge the impugned

judgment and order dated 30th November 2018 passed by the

Additional Sessions Judge, Nashik in Sessions Case No.355 of 2015

thereby convicting the appellants for the offences punishable under

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sections 302, 201 r/w 34 of Indian Penal Code and sentencing them to

suffer life imprisonment and to pay fine of Rs.1,000/- each, in default,

to suffer two months simple imprisonment.

2. The case of the prosecution is as under :

. That, Rupali - daughter of Babasaheb Kumbharkar (P.W.1)

got married to the present appellant no.1- accused no.1 on 24 th April

2012. That, she was living in her matrimonial home along with her

husband, her in-laws and the appellant no.2 - accused no.3 (younger

brother of accused no.1). In November 2012, she had conceived

pregnancy. Unfortunately, on 28th June 2013, there was intrauterine

death of the fetus due to lack of blood supply as has been disclosed by

P.W.3 - Dr. Sunil Jadhav. In March 2015, she had given birth to a baby

boy in a private hospital at Pimpalgaon, Baswant.

3. On 23rd August 2015, father of the deceased Rupali i.e.

P.W.1 had called upon her father-in-law Dashrath and intimated to him

that he would come to Shindvad to fetch Rupali to her maternal house

on the occasion of Raksha Bandhan. However, at about 1.30 pm,

accused no.3/appellant no.2 - Akshay informed P.W.1 that his sister-in-

law i.e. Rupali is no more. At about 2.50 pm, the father of the

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appellant - Dashrath Gade approached Vani Police Station and

informed that he had been to Khambala to participate in the 10 th day

rituals of his relatives. At about 11.00 am, his elder son Chetan had

informed him that his wife Rupali had attempted suicide by hanging in

their residential house but he suspected that she had not died and

therefore, he is taking her to the Doctor. Dashrath Gade had then

reached Vani Hospital and he was informed that Rupali had died. On

the basis of his report, A.D. No.38/2015 is registered at Vani Police

Station. The said report is marked at Exh.152.

4. One of the relatives of P.W.1 Mr. Pawar who is resident of

the same village informed P.W.1 that Rupali had committed suicide.

The parents and relatives of Rupali had gone to the residence of Rupali

and upon inquiry, they had learnt that she was taken to Primary Health

Centre at Vani Government Hospital. They had been to the Hospital

and they had seen that there was a fresh injury mark on the right side

of her cheek and there was a ligature mark on her neck. Due to

disclosure made by Rupali to her mother on the earlier occasions that

she was being harassed and ill-treated for failure to fetch one Tola

Gold from her parents. P.W.1 approached Vani Police Station and

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lodged a report on the basis of which Crime No.99 of 2015 was

registered at Vani Police Station at about 22.30. At the trial,

prosecution examined as many as 11 witnesses to bring home the guilt

of the accused.

5. According to P.W.1, the accused were demanding Rs. 1 Lakh

for purchase of a pick-up vehicle and that Rupali was being harassed

on that count. According to P.W.1, in the second week of January, he

had handed over Rs.1 Lakh to the father-in-law of Rupali when he had

been to fetch Rupali. From the tenor of the cross-examination, it

appears that P.W.1 had verified the economic condition of the

appellants prior to the marriage and only on realizing that their

economic condition was sound they had got Rupali married to the

appellant no.1. It is also elicited in the cross-examination that they had

a wine-yard in their agricultural land. That, they were possessing Swift

Car. P.W.1 has also admitted that his economic condition was equally

good. The suggestion extended to P.W.1 shows that according to the

accused, Rupali had committed suicide. P.W.1 has deposed in

consonance with the FIR. It is testified before the Court by P.W.1 that

when they saw the dead body at Vani Hospital, P.W.1 had noticed that

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were missing. It is admitted in the cross-examination that P.W.1 and his

relatives were present at the time of drawing inquest panchanama. It is

specifically denied that chit was found inside the blouse of his

daughter at the time of drawing inquest panchanama.

6. Unfortunately, P.W.7 - Shaila Kumbharkar, mother of the

deceased in the interest of her grandson has resiled from her earlier

statement and is declared hostile. She has admitted before the Court

that there was a compromise between the accused and P.W.1 and P.W.7

since the accused had agreed to transfer 1½ Acre land in favour of

Ram, the one and half year old son of the deceased Rupali viz. Ram

who was in the custody of his grant parents at Patoda. It is extremely

unfortunate that an young woman, and a mother of a one and half

year child has died in her matrimonial house and yet the mother of the

deceased has turned hostile. However, the admission that a

compromise is arrived at in the interest of the minor speaks volumes

for itself.

7. Prosecution has examined P.W.3 - Dr. Sunil Jadhav to prove

that Rupali had delivered a dead fetus on 28 th June 2013 which was an

intrauterine death of the fetus due to lack of blood supply to the

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uterus.

8. P.W.6 - Dr. Amol Jadhav has deposed before the Court that

he had examined a female, seated on the rear seat of the vehicle of the

appellant no.2. On 23rd August 2015, at about 12.45 noon, appellant

no.2 - accused no.3 had hastily visited the clinic of Dr. Amol Jadhav

which he was running in the name of Dr. Jadhav Accident Hospital and

Maternity Hospital at Pimpalgaon Baswant and had hastily requested

him to examine a patient. The certificate is at Exh.81. That, on

examination, he had found her dead as her pupils were dilated, pulse

was not recordable, he had also seen a scar on her neck and therefore,

advised the appellant to take her to Civil Hospital. He had identified

the appellant no.2 as the person at whose request he had examined the

patient. The appellants had instead, visited Radhakrishna Clinic run by

P.W.9 - Dr. Swapnil Mahajan.

9. Dr. Swapnil Mahajan - P.W.9 has testified before the Court

that upon examination of Rupali, he found that the eye-lids were

dilated, pulse was not recordable. He had then done ECG but could not

find electrical connectivity. Hence, he along with Dr. Aher, declared the

patient dead.

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10. P.W.5 - Dr. Rajendra Bagul had conducted autopsy on the

dead body of Rupali on 23rd August 2015 between 8.30 pm to 9.00 pm.

The observations at the time of performing autopsy were as follows :-

"3. In respect of surface wounds and injuries three ligature marks were existing.

1. Ligature mark completely encircling the neck at the little/ upwards at the level of thyroid cartilage which was 42 cm around, 1 cm in width 7 cm from the chin.

2. Ligature mark little obliquely upward 3 cm in length, extending to the right, meeting to 1st and 3rd line.

3. 16 cm in length above thyroid cartilage 5 cm below the chin. Bruise mark on left side of mandible - first about 1 cm, second 3 cm imprint mark of ligature.

4. All the injuries mentioned in column No.17 were ante-

mortem injuries. There was no injuries to the scalp, no skull fracture, brain was normal.

5. In case of thorax, there was fracture of hyoid bone.

Fracture of trachea. Right and left lungs were congested. Heart was normal. Left chamber is empty. Right chamber contain blood.

6. There was little 50 ml to 70 ml semi digested food (mostly liquid). Intestine, Lever Pancreas, spleen kidney were congested. Organs of generations were normal. Viscera was preserved. No fracture of cervical vertebra."

11. P.W.5 - Dr. Bagul had observed that there was sub-

conjuctival hemorrhage. Nails were cyanosed. According to him, the

cause of death was "asphyxia due to strangulation". All the injuries

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were ante-mortem. There was fracture of trachea. There were no

marks of starvation. It is elicited in the cross-examination of P.W.5 that

the features in case of strangulation and hanging are almost similar.

That bruise marks is not a separate injury but is corresponding to the

injuries mentioned in column no.17. P.W.5 was shown article 'D' i.e.

rope with which Rupali had allegedly hanged herself and the

observation of P.W.5 are as follows :-

"Now article produced along with Exh.38 Sr. No.5 shown to me. With the help of this rope, the injuries mentioned in column No.17 of Exh.99 PM notes are possible. The said article is marked as article-D."

12. P.W.2 - Anita Borgude is a panch for inquest panchanama

which is at Exh.76 and she has proved the contents of the inquest

panchanama. The recitals of the inquest panchanama show that there

was a ligature mark on her neck admeasuring 42 cm x 1 cm. There

were abrasions on her chin. There were marks of clotting of blood and

also marks on her wrist. The observation of P.W.1 are corroborated by

the inquest panchanama which shows that the anklet in the right leg,

earrings in her left ear and both the toe rings were missing. In the

inquest panchanama, there is a reference to finding a chit in the blouse

of the deceased wherein it is stated that she has committed suicide by

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hanging and does not hold any person responsible for the same. In

fact, it can be seen from the evidence of P.W.1 that in the course of

investigation, Police had taken the sample of handwriting of Rupali.

What was given to the Police is the admission form which Rupali had

submitted to the college on 23rd June 2010. In all probabilities, because

of the compromise arrived at between the accused and parents of the

deceased, a transcript of the actual handwriting of Rupali was not

given to the Police and the whole exercise is futile. We also cannot

exercise powers under section 73 of the Evidence Act as the material

for comparison is insufficient, moreover, the signature on the

admission form is in the maiden name.

13. P.W.10 - Investigating Officer - Milind Khodave was

attached to Vani Police Station and was entrusted with the

investigation in C.R. No.99 of 2015. He had received A.D. Report, spot

panchanama, inquest panchanama, advance cause death certificate

and hand sketch map. He had seized a chit which was allegedly found

on the person of the deceased at the time of inquest panchanama. He

had also seized one rope which was prepared of four twine strings

together. He had arrested all the accused and recorded the statements

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of the witnesses, he had recorded the statement of P.W.3 - Dr. Sunil

Jadhav, P.W.5 - Dr. Rajendra Bagul, P.W.9 - Dr. Swapnil Mahajan and

P.W.10 - Mr. Milind Khodave. In the cross-examination, he has candidly

denied the plea of alibi taken by the present appellants by denying the

suggestion that it had transpired in the investigation that the

appellants were working in their land at the time of incident. In the

present case, strangely enough the prosecution has examined both the

Doctors who are signatories to the post-mortem notes. It appears from

the record that the Investigating Officer had also sought opinion of

Dr. Gore in respect of the cause of death as mentioned in the post-

mortem notes. He has testified in the cross-examination as follows:-

"It is true that I have not given the observations of strangulation in PM last column, according to me, I had given the observations in column Nos.17, 18, 19. It is true in the column No.18, the bruise mark and imprint mark are mentioned according to me, which is one and the same. ...

... according to me, they are three in numbers. It is true in hanging, there used to come ligature marks on the neck. Upward ligature marks are sign of hanging. The ligature marks mentioned in column No.17 (1) and (2) are going upwards.

... There may be the signs of hanging if we read 1, 2, 3 ligature marks mentioned in column No.17."

14. The learned counsel for the appellants submits that the

case against the accused is based on circumstantial evidence and the

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prosecution has failed to establish the chain of circumstances to prove

the guilt of the accused. It is submitted that there is no eye-witness to

the incident. The fact that the accused are acquitted of the charge

under sections 498A and 304B of Indian Penal Code would further

establish that the deceased was not meted with any harassment or ill-

treatment at the hands of the accused persons. That, therefore, there

was no motive on the part of the accused to kill Rupali. Implicit

reliance is being placed on Exh.71 which is a suicidal note, the

contents of which, according to the learned counsel proves that Rupali

had committed suicide and did not hold anyone liable for the same.

Hence, the learned counsel prays for acquittal of the appellants. The

learned counsel for the appellant has placed reliance upon the

judgment of Division Bench of this Court in the case of Motiram

Marotrao Bhongade vs. The State of Maharashtra1, in which the

accused was acquitted for the want of cogent and convincing medical

evidence. The Division Bench of A.P. Lavande and P. D. Kode, JJ., has

observed as follows :-

"she candidly admitted that she did not carry out post mortem in respect of hanging matter. She admitted that ligature mark as found in the present case would be of hanging. She also admitted that in the post mortem report,

1. (2010) 3 Mh.L.J. (Cri) 503

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earlier, hanging was written while giving opinion, but subsequently she found that it was strangulation and therefore, the strangulation was written."

The facts of the said case are not relevant for the purpose

of appreciation of the facts in the present case. Every judgment in a

criminal case is based on the facts of that particular case and hence, we

are of the opinion that the said judgment cannot be relied upon in the

present case.

15. Per contra, the learned APP submits that the suicide note is

forged and planted by the accused. That the medical evidence clearly

establishes that the deceased was put to death by strangulation and

that the accused has not discharged onus cast upon him under section

106 of the Indian Penal Code.

16. Upon examination of the evidence adduced by the

prosecution and upon hearing the submissions advanced by the

respective counsel, the following facts can be inferred :-

1) The recitals of A.D. Report lodged by the father of the

accused would show that on 23rd August 2015 at about

11.00 am, the accused had informed him telephonically

that Rupali had hanged herself and that she is being taken

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to the Hospital.

2) P.W.6 - Dr. Amol Jadhav had examined Rupali and noticed a

scar on the neck, her pupils were dilated and pulse

unrecordable, he had therefore, advised them to take her to

the Civil Hospital instead, the appellants choose to take her

to Radhakrishna Hospital.

3) P.W.9 - Dr. Swapnil Mahajan had not only examined Rupali

clinically but had also done Electro-Cardiogram test and

was reassured that the patient had expired. It is pertinent

to note that while performing ECG no chit was found in the

blouse of the deceased. It is, therefore, established that the

said chit at Exh.61 is planted subsequently, just before the

inquest panchanama was recorded.

4) The spot panchanama at Exh.77 shows that the deceased

had purportedly committed suicide in an open shed

abutting the house of the accused which does not inspire

the confidence of the Court. That, there were injury marks

on the wrist of the deceased, there were bruises on her

cheek which would show that she was subjected to violence

before she was strangulated.

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17. The absence of one earring, anklet and toe rings further

substantiates the indictment that the victim had struggled to rescue

herself from the clutches of the assailant.

18. The medical evidence also further fortifies the finding of

homicidal death. The fracture of layrnx and trachea are clear

indications of death by strangulation. The ligature mark is only

slanting upward and not exactly below the cartilage.

19. In the case of Javed Abdul Razzaq Shaikh vs. The State of

Maharashtra2, the cause of death was shown as "asphyxia due to

strangulation" and the defence of the accused was that of "hanging".

There was also fracture of the larynx and trachea as in the present

case. The Medical Officer in that case had opined that in the case of

throttling by hand fracture of larynx and trachea cannot occur. It

occurs in strangulation only. The Apex Court, in the said case, has

observed thus :-

"It is no doubt true that in the case of hanging, fracture of the layrnx and trachea is very rare and that too it may be found in judicial hanging. On the other hand, fracture on the larynx, trachea and hyoid bone indicates strangulation."

20. It necessarily needs to be held that the chain of 2 (2019) 10 SCC 778

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circumstances coupled with the false explanation offered by the

accused is inconsistent with the innocence of the appellant/accused

no.1. An offence under section 302 of IPC against accused no.1 is

proved by the prosecution beyond reasonable doubt. The Supreme

Court, in the case of Deonandan Mishra vs. The State of Bihar3, has

held as follows :-

"It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence."

21. As a matter of fact, the protection and welfare of wife is

the sole responsibility of her husband. She enters into matrimonial

abode with a faith and trust in her husband and it is his duty to

protect her. However, dowry deaths, suicides at matrimonial abode

defy the said duties cast upon the husband. Appellant no.1 has failed

3. 1955 AIR 801

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in his duty to protect his wife instead, he has eliminated her and has

deprived the infant son of his mother's love. In addition, he has

hampered the investigation by winning over the mother of the

deceased by offering 1½ Acre of land which the child was even

otherwise entitled to as a legal heir.

22. As far as the appellant no.2/orig. accused no.3 is

concerned, he appears to be the younger brother of the appellant no.1/

orig. accused no.1. On the basis of the evidence of P.W.9, it can be said

that he was aiding and assisting his brother after the incident had

occurred. He had taken his brother and the deceased to the clinic of

P.W.9 and thereafter to Radhakrishna Clinic of P.W.6. P.W.6 in his

substantive evidence has identified the appellant/orig. accused no.1 as

the person who had accompanied the patient - Rupali. This has to be

read in consonance with the fact that the phone call was made to the

father Dashrath by the appellant no.1/ orig. accused no.1 informing

him that Rupali had attempted to commit suicide in the residential

house. Appellant no.2/orig. accused no.3 had only informed P.W.1 and

P.W.7 that "Rupali is no more". All these aspects would show that the

appellant no.2/ orig. accused no.3 has made all efforts to cause

disappearance of evidence and therefore, he deserves to be convicted

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for the offence punishable under section 201 of IPC. Section 201 reads

as under :-

"201.Causing disappearance of evidence of offence, or giving false information to screen offender.-- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;

if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

if punishable with imprisonment for life.--and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

if punishable with less than ten years' imprisonment.-- and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both."

In view of the above discussion, we are of the opinion that

the conviction of the appellant no.2/accused no.3 for the offence

punishable under section 302 r/w 34 of Indian Penal Code deserves to

be quashed and set aside. Hence, we pass the following order :-

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                                                           ORDER

                              (i) Appeal is partly allowed;

(ii) The conviction and sentence imposed upon the appellant

no.2 - orig. accused no.3 for the offence punishable under

section 302 of the IPC vide judgment and order dated 30th

November 2018 in Sessions Case No.355 of 2015 is hereby

quashed and set aside;

(iii) Orig.Accused No.3 - appellant no.2 is convicted for an

offence punishable under section 201 of IPC and is

sentenced to suffer RI for three years;

(iv) Sentence of fine is maintained;

(v) The conviction and sentence of the accused no.1/ appellant

no.1 for the offence punishable under section 302 of the

IPC is maintained;