Bombay High Court
Santosh Shahadu Sorate And Ors vs The State Of Maharashtra on 30 September, 2021
Bench: S.S. Jadhav, S. V. Kotwal
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CRI-APPEAL-351-2012.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.351 OF 2012
1. Santosh Shahadu Sorate,
2. Sachin Shaahdu Sorate,
3. Vatsalabai Shahadu Sorate, &
4. Shantabai Fakirchand Nagpure. .... Appellants
Versus
The State of Maharashtra ... Respondent
......
WITH
INTERIM APPLICATION NO.1438 OF 2020
IN
CRIMINAL APPEAL NO.351 OF 2012
Sachin Shahadu Sorate (Nagpure) .... Applicant
Versus
The State of Maharashtra .... Respondent
....
Mr. Murtaza Najmi, Advocate i/b. Ms. Jayashri Raje Mahadik-Chavan,
for the Appellants in Criminal Appeal No.351/2012 & for the applicant
in Interim Application No.1438/2020.
Ms. S.V. Sonavane, APP for the Respondent-State.
....
CORAM : SMT. SADHANA S. JADHAV &
SARANG V. KOTWAL, JJ.
RESERVED ON : 15th SEPTEMBER, 2021
PRONOUNCED ON : 30th SEPTEMBER, 2021
JUDGMENT : [PER SARANG V. KOTWAL, J.]
Digitally
signed by
VINOD
1 The appellants have challenged the judgment and order
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2021.09.30
dated 8.2.2012 passed by the Additional Sessions Judge-2, Niphad
16:15:52
+0530
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in Sessions Case No.27/2009 convicting and sentencing all the
appellants. They were convicted for commission of the offence
punishable under Section 302 read with 34 of the Indian Penal
Code and were sentenced to suffer RI for life and to pay a fine of
Rs.3,000/- each; and in default to suffer RI for three months. The
appellants were convicted for commission of the offence punishable
under Section 201 of the Indian Penal Code and were sentenced to
suffer RI for three years and to pay a fine of Rs.1000/- each; and in
default to suffer RI for two months. The sentences were directed to
run concurrently and they were given set off for the period spent as
under-trial prisoners. All the appellants were acquitted from the
charges of commission of the offence punishable under Section
498-A and 306 read with 34 of the Indian Penal Code.
2 The charge was framed under different heads against all
the appellants. The first charge was under Section 498-A read with
34 of the Indian Penal Code. The second charge was under Section
306 read with 34 of the Indian Penal Code. Alternatively, they were
also charged under Section 302 read with 34 of the Indian Penal
Code. The third charge was under Section 201 read with 34 of the
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Indian Penal Code.
3 The prosecution evidence was ambiguous on various
important aspects. In support of its case, the prosecution examined
only five witnesses. PW-1 Rajendra Parate and PW-2 Ramrao
Sonkusale were the relatives of the deceased Sheetal. The
appellant No.1 was her husband. The appellant No.2 was her
brother-in-law. The appellant No.3 was her mother-in-law and the
appellant No.4 was a relative of other appellants. PW-3 Sunil
Jadhav was a pancha for the spot panchnama, but, he did not
support the prosecution case. He was declared hostile. PW-4 Dr.
Sagar Lokhnde was the Medical Officer who had conducted
postmortem examination. PW-5 API Rajendra Patil was the
investigating officer who had investigated C.R. No.23/2009
registered at Yeola City police station.
4 The prosecution case, in brief, is as follows:
. Initially, an Accidental Death case No.12/2009 was
registered at Yeola police station in respect of death of Sheetal.
Inquest panchnama and spot panchnama were carried out. The
spot was shown by father-in-law of the deceased i.e. father of the
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appellant No.1. Thereafter, FIR was lodged on the complaint made
by PW-1 Rajendra Parate. It is alleged that a Saree, which was
used in the offence, was recovered at the instance of appellant
No.1 husband. Investigation was carried out and the charge-sheet
was filed. The case was committed to the Court of Sessions.
5 The prosecution evidence is as follows:
. PW-1 Rajendra Parate was the brother of the deceased.
He has deposed that the deceased had got married with appellant
No.1 Santosh on 7.12.2008. He has stated that after her marriage
the deceased started residing at Yeola in a joint family. All the
appellants were staying together. On one occasion, the maternal
uncle of the deceased had gone to bring her to her parental house
as per the custom, but, the accused did not send her. According to
him, whenever the deceased had a telephonic talk with him, she
used to inform that the accused were ill-treating her. She told him
that she would come to her parental house on 3.3.2009 and tell
them the details. On 4.3.2009 however this witness received a
phone call from Yeola police station informing that the deceased
had died because of strangulation of her neck. On 5.3.2009, the
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informant along with his other relatives went to Yeola. He saw the
dead body. He noticed a ligature mark on the neck and then he
lodged his FIR. The FIR is produced on record at Exhibit-26. The
cross-examination of this witness is mainly about the background
of the accused and of the deceased and their initial talks of
marriage. He denied the suggestion that the deceased was not
willing to marry appellant No.1. He admitted that when he came
to Yeola after the incident, he directly went to Yeola police station,
but, did not tell anything about Sheetal to police.
6 PW-2 Ramrao Sonkusale was the maternal uncle of the
deceased. His evidence is on similar lines. He has deposed that the
deceased had told them that the accused were not fair persons and
that the deceased's family had committed a mistake by getting her
married with appellant No.1. The deceased had told them that she
would give all the details once she met them at their place.
However, before that, the incident took place. He stated that he
was not aware as to whether the deceased was not willing to marry
the appellant No.1.
7 PW-3 Sunil Jadhav was a spot pancha, but, he was
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declared hostile. He has stated that he was called for the
panchnama on 4.3.2009. He has stated that the police showed him
the broken door and the latches lying at the spot. The spot
panchnama was brought on record at Exhibit-29. He denied the
suggestion that on 5.3.2009 again he was called for panchnama in
connection with seizure of a saree at the instance of appellant
No.1.
8 The spot panchnama Exhibit-29 mentions that the spot
was shown by Shahadu Fakir. He was father of appellants No.1 & 2
and husband of appellant No.3. The spot panchnama merely
describes the details of the house which consisted of two rooms
and a bath room. It was conducted from 3:00 p.m. to 3:45 p.m. on
4.3.2009. The panchnama specifically mentions that nothing
suspicious was found and, therefore, nothing was seized.
9 PW-4 Dr. Sagar Lokhande had carried out the
postmortem examination. His deposition as well as postmortem
notes mention following important aspects :
"2. Surface wounds and injuries :- Ligature marks
seen over neck below the level of lower
border of thyroid cartilage partially encircling
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the neck. The ligature mark of right side of
neck is more prominent than left side of the
neck. Ligature mark on right side of neck is 9
cm in length and 1 cm in width. It is curved
shape extending horizontally 4 cm below the
angle of mandible. It is hard to feel reddish in
brown in colour and margins are ecymosed
base is grooved. Ligature mark on left side of
the neck in 10 cm in length and 1 cm in width
extending from lower border of thyroid
cartilages horizontally anteroposterialy
backward, 7 cm below the left angle or
mandible, it is reddish brown in colour, hard
to feel and margins are ecymosed.
3. It reveals from dissection of neck that the
ligature mark on sub-cutaneous tissues under
the ligature mark are congested, ecymosd
muscles of neck. Blood vessels of neck are
congested, fiber of plastysma muscles are torn
on right side. Tracheal cartilage are
compressed and congested. Lower border of
thyroid cartilage and left lobe of thyroid is
congested.
4. At the relevant time no fracture of hyoid and
thyroid cartilage detected. The injuries were
ante mortem injuries."
10 This witness i.e. PW-4 has given an opinion that the
cause of death was death due to cardio respiratory failure due to
asphyxia due to strangulation. He confirmed his opinion even after
receiving the CA report. According to him, the death was
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homicidal. The postmortem notes are produced on record at
Exhibit-35. According to him, the injury with ligature mark was
possible by soft saree, piece of clothes etc.. His cross-examination
as to whether it could be a case of homicide or suicide was
important which reads thus :
"6. I agree with the preposition that in case of
hanging fracture of thyroid cartilage is less
common but in case of strangulation by
ligature fracture is more common. Likewise
in case of larynx and trachea, in case of
hanging fracture is rare and in case of
strangulation fracture may be found. In case
of strangulation blood from the nose, moth,
ears is common. In case of hanging, blood
from the nose, mouth and ears is not
common. In case of hanging involuntary
discharge of faeces and urine less common.
In case of strangulation it is more common.
In case of hanging, the tongue is not always
protruded. In case of strangulation it is more
common."
11 The CA report of the saree recovered in this case showed
it had blood stains of about 1.5 cm, but,there was neither skin nor
saliva detected on it. The blood group could not be determined.
12 PW-5 API Rajendra Patil was the investigating officer. He
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has deposed that during the investigation of A.D. case No.12/2009,
he prepared inquest panchnama and spot panchnama. On the next
day, he received FIR which was registered vide C.R. No.23/2009.
He had himself recorded the FIR. On 9.3.2009, at the instance of
the present appellant No.1 a saree was recovered. The panchnama
is produced on record at Exhibit-40. The saree was recovered from
his house. It was concealed below the iron cupboard. He had
arrested all the accused and had filed the charge-sheet.
This is the entire prosecution case.
13 The defence of the appellants is of total denial. According
to the appellants; because of the anger, false case was lodged.
14 Learned counsel for the appellants submitted that the
evidence against the appellants is not sufficient to prove the
prosecution case beyond reasonable doubt. The father-in-law of
the deceased who was also residing with other appellants; is not
made an accused. There is no distinguishing feature as far as he is
concerned. The prosecution has simply chosen other accused and
made them accused for no particular reason.
15 He relied on the judgment of the Hon'ble Supreme Court
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in the case of Nagendra Shah Vs. State of Bihar1 to contend that
the case being similar the appellants deserve benefit of doubt. He
also relied on the cross-examination of the medical officer and
some commentary from Modi's Medical Jurisprudence to contend
that even homicidal death is not proved.
16 On the other hand, learned APP submitted that it was
incumbent on the appellants to have explained the death of the
deceased as burden was on them under Section 106 of the Indian
Evidence Act. In support of her contention, learned APP relied on
the judgment of the Hon'ble Supreme Court in the case of
Jayantilal Verma Vs. State of M.P. (Now Chhattisgarh)2.
17 Learned APP also relied on the judgment of the Hon'ble
Supreme Court in the case of Trimukh Vs. State of Maharashtra, as
reported in 2006(10) SCC 681 in support of her similar
contentions. In that case there was ill-treatment caused to the
deceased which was an important circumstance. This most
important circumstance is lacking in this case.
1 Passed on 14.9.2021 in Criminal Appeal No.1903/2019 (Hon'ble Supreme
Court)
2 Passed on 19.11.2020 in Criminal Appeal No.590/2015 (Hon'ble Supreme
Court)
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18 As far as the contentions of the appellants regarding the
postmortem notes are concerned, learned counsel for the
appellants has relied on the cross-examination of the doctor and on
commentary from Modi's Medical Jurisprudence. The medical
evidence in this case shows that the ligature mark around the neck
was not complete. It is described as partially encircling the neck.
In case of strangulation it was expected to be continuous around
the neck. The hyoid bone was not fractured which was expected in
the case of strangulation. On the other hand, the margins of the
ligature were ecymosed, which suggested case of strangulation.
Thus, as per commentary from Modi's Medical Jurisprudence, there
are some indications that it could be a case of hanging, but, there
are also some indications that it could be a case of strangulation.
However, at this stage, the medical opinion given by the doctor
that, it is a case of homicide cannot be overlooked, though some
doubt is created. In any case, the appellants are acquitted of the
charges of commission of offence punishable under Section 306
read with 34 of the Indian Penal Code and it is held that there is no
evidence of abetment of commission of suicide.
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19 The crucial question remains as to who could be held to
be responsible for the commission of this offence. In this particular
case, the prosecution case is cryptic. It does not show how the
investigation actually started and where exactly the dead body was
found. The spot was shown by the father-in-law of the deceased,
but, there is no substantive evidence of any witness showing that
the dead body was inside that house. The prosecution has not
examined any neighbours or any other witness from that place to
show that the deceased had died inside that house. The spot
panchnama does not mention any peculiar fact about the house.
Only description of the house is mentioned.
20 The prosecution has not explained the time when the
incident had occurred. No witness from the locality or the
neighborhood was examined to explain this aspect either.
Therefore, there is nothing to show that the offence was committed
at odd hours or it was committed at the time when all the inmates
of the house were expected to be inside the house. The prosecution
has not led any evidence to show that all or any of the appellants
were inside the house when the incident had taken place. Very
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significantly the father-in-law of the deceased who was also one of
the residents of the same house was not made an accused and no
distinction whatsoever is made by the prosecution in his case and
the case of the present appellants. Only the vague evidence which
the prosecution wants to rely on; is the evidence of PW-1 Rajendra
Parate and PW-2 Ramrao Sonkusale, who deposed that all the
appellants were residents of the same house as they were residing
together.
21 The motive for commission of this offence is also not
established. The appellants are acquitted from the charges of
offence punishable under Section 498-A of the Indian Penal Code.
There is nothing to show that on what ground the deceased was
harassed. The only vague allegations are made that the deceased
had told PW-1 Rajendra Parate and PW-2 Ramrao Sonkusale that
they had made a mistake in marrying her with appellant No.1.
But, that does not establish any reason or motive for commission of
murder, against any of the appellants.
22 The recovery of saree from the same house is also quite
suspicious. The spot panchnama was carried out on 4.3.2009. All
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the rooms were examined. Subsequently, on 9.3.2009 from the
same house a saree was recovered at the instance of the appellant
No.1 from below a cupboard. This was not mentioned in the spot
panchnama of the same place. Therefore, this recovery is doubtful.
23 The only question needs to be considered seriously is
about the absence of explanation offered by the appellants. In that
connection, Nagendra Sah's case (supra) relied on by learned
counsel for the appellant assumes importance. In that case also the
in-laws of the deceased were very much staying in the same
premises where the appellant in that case and the deceased were
staying. Paragraphs-17 and 21 of that judgment are important,
which read thus :
"17. In this case, as mentioned above, neither the
prosecution witnesses have deposed to that
effect nor any other material has been placed
on record to show that the relationship
between the Appellant and the deceased was
strained in any manner. Moreover, the
Appellant was not the only person residing in
the house where the incident took place and it
is brought on record that the parents of the
Appellant were also present on the date of the
incident in the house. The fact that other
members of the family of the Appellant were
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present shows that there could be another
hypothesis which cannot be altogether
excluded. Therefore, it can be said that the
facts established do not Rule out the existence
of any other hypothesis. The facts established
cannot be said to be consistent only with one
hypothesis of the guilt of the Appellant.
21. When a case is resting on circumstantial
evidence, if the Accused fails to offer a
reasonable explanation in discharge of burden
placed on him by virtue of Section 106 of the
Evidence Act, such a failure may provide an
additional link to the chain of circumstances.
In a case governed by circumstantial evidence,
if the chain of circumstances which is required
to be established by the prosecution is not
established, the failure of the Accused to
discharge the burden Under Section 106 of
the Evidence Act is not relevant at all. When
the chain is not complete, falsity of the
defence is no ground to convict the Accused."
24 In the present case also not only the appellants, but, even
the father-in-law was resident of the same house. In this case also
there could be another hypothesis which could not be altogether
excluded. In this case before us the prosecution has failed to travel
the distance beyond the hypothesis of "the accused may have
committed the offence" and "the accused must have committed the
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offence".
25 As explained in this Nagendra Sah's case (supra), first it
was the duty of the prosecution to explain the basic facts and then
only Section 106 of the Indian Evidence Act could be used against
the accused. When the chain of the circumstances itself was not
established, falsity or absence of defence was no ground to convict
the accused.
26 As far as the case of Jayantilal Verma (supra), relied on
by learned APP is concerned, it makes a reference to the other
family members and it was observed that since no explanation was
given as to how the wife could have received the injuries it was
held to be strong circumstance indicating that the husband was
responsible for commission of the offence of murder when the
death was caused by strangulation. It was also observed that the
appellant therein was under obligation to give a plausible
explanation regarding cause of death in the statement recorded
under Section 313 of Cr.P.C.. However, in that case there were
severe allegations of ill-treatment suffered by the deceased in that
case. In the present case that important evidence is not proved by
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the prosecution. In fact all the appellants are acquitted from the
charges of offence punishable under Section 498-A of the Indian
Penal Code. There is nothing on record to suggest that the
deceased was harassed by any of the appellants. The motive is not
established at all. In the context of the case, it was an important
circumstance which was required to be proved by the prosecution.
The case has to be looked in the background that the father-in-law
is not made an accused. There is absolutely no distinguishing
feature between the father-in-law of the deceased and any of the
appellants. Therefore, it cannot be presumed that any of the
appellants or all of them had committed the offence punishable
under Section 302 read with 34 of the Indian Penal Code.
27 The prosecution has not led sufficiently cogent evidence
in this case. None of the neighbours or people from the locality are
examined. There is no evidence to show that any of the appellants
was in the house when the incident had taken place. There is
nothing to show that the incident had taken place at odd hours
when all the appellants were expected to be inside the house.
There is no evidence to show as to how the investigation started.
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There is a reference to a accidental death report which was
investigated first. At that time, inquest panchnama and spot
panchnama were carried out, but, nothing is brought on record to
show who had shifted the deceased or her dead body to any
hospital and how the police were informed. All these links were
important to complete the chain of circumstances. Therefore, the
Court is left to enter into the realm of inferences and conjectures.
This is not permissible in a criminal trial. The prosecution has
miserably failed to prove its case beyond reasonable doubt. The
prosecution has not proved the only hypothesis of commission of
murder by the appellants. The other possibilities are not
completely ruled out. Therefore, the benefit of doubt will have to
be given to the appellants in this case. Hence, the following order :
:: O R D E R ::
i. The appeal is allowed.
ii. The judgment and order dated 8.2.2012 passed by the
Additional Sessions Judge-2, Niphad in Sessions Case
No.27/2009 is set aside.
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iii. The appellants are acquitted from all the charges, for
which they were convicted and sentenced.
iv. The fine amount, if paid, be refunded to the appellants.
v. The appellants be released from jail in connection with
Sessions Case No.27/2009 on the file of Additional
Sessions Judge-2, Niphad, if not required in any other
case.
vi. Criminal Appeal is disposed of in aforesaid terms. In view
of disposal of Criminal Appeal, Interim Application
No.1438/2020 also stands disposed of.
(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.)
Deshmane (PS)
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