Bombay High Court
Subhash @ Suraj Ramnaresh Bind (In Jail) vs State Of Maharashtra Through Pso Majri, ... on 10 January, 2017
Author: B.R. Gavai
Bench: B.R. Gavai
1 APEAL152-15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.152/2015
...
Subhash @ Suraj Ramnaresh Bind,
Aged about 26 years, Occ: Labour,
R/o Zenda Dafai Ward No.4,
Majri Colliery, Distt. Chandrapur.
(At present in Jail) .. APPELLANT
.. Versus ..
State of Maharashtra,
through P.S.O. Majri,
Tah. : Bhadrawati,
Distt.Chandrapur. .. RESPONDENT
Mr. Y.B. Mandpe, Advocate for Appellant.
Mr. V.P.Maldhure, Additional Public Prosecutor for Respondent.
....
CORAM : B.R. Gavai & Kum. Indira Jain JJ.
DATED : January 10, 2017.
ORAL JUDGMENT (per B.R. Gavai, J. )
1. Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Warora in Sessions Case No.30 of 2012 dated 24.03.2015 thereby convicting the ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:44:54 ::: 2 APEAL152-15.odt appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.2,000/- in default of payment of fine to suffer rigorous imprisonment for three months, the appellant has approached this Court.
2. The prosecution story as could be gathered from the material placed on record is thus:-
Deceased Arti is the wife of appellant Subhash. The parties herein would be referred as they are referred in the judgment of the trial Court. The accused lodged report on 2.6.2012 stating therein that he was married to the deceased Arti prior to two years of the incident. They are not having any issue. Some time there used to be quarrel between them. He stated that on the day of the incident on 2.6.2012 at around 8.00 hours, he had gone to work as helper of one Tiwari. He states that he had immediately come back. At around 6 p.m. after informing his wife Arti that he went to Majri market to purchase mutton. He came back at around 6.30 hours. When he came back, he saw that the door was closed. He pushed the door and went inside. His wife was on a rope attached to an angle of the roof. He got down his wife and put her on the cot. He saw that his wife was dead and, therefore, he came to ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:44:54 :::
3 APEAL152-15.odt the Police Station and lodged a report. On the basis of the said report, Merg No.7 of 2012 came to be registered. In pursuance to the said A.D., the rope came to be seized below panchanama Exh.18. An inquest panchanama was carried out below Exh.23. The panchanama was conducted between 00.05 hours and 1.00 hours of 3.6.2012.
3. The first information report came to be lodged by Patali Bind, the elder brother of the deceased, alleging therein that the appellant used to ill-treat the deceased and that he had committed her murder. As such the first information report No.21 of 2012 for the offence punishable under Section 302 of the Indian Penal Code came to be registered below Exh.48 on 5.6.2012 at 1810 hours. The post mortem was carried out by PW11 Dr. Ashish Kuthe between 12.15 p.m. and 2 p.m. of 5.6.2012. After the registration of the first information report, the accused came to be arrested. The investigation was carried out. At the conclusion of the investigation, charge sheet came to be filed in the Court of the learned Judicial Magistrate First Class, Bhadrawati. Since the case was exclusively triable by the Sessions Court, same came to be committed to the learned Sessions Judge, Warora. ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:44:54 :::
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4. The charge was framed against the accused. He pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentenced the appellant as aforesaid. Being aggrieved thereby, the present appeal.
5. Mr. Y.B. Mandpe, the learned counsel for the accused submits that the learned trial Judge has grossly erred in convicting the accused. He submits that the prosecution even failed to establish beyond reasonable doubt that the death of the deceased was homicidal. The learned counsel submits that the perusal of the evidence of PW11 Dr. Ashish Kuthe, the post mortem report and the evidence of PW12 Rahul Sonwane- the Investigating Officer, would reveal that the possibility of the death being suicidal cannot be ruled out. He, therefore, submits that the order of conviction is not sustainable.
6. The learned APP on the contrary submits that since the accused and the deceased were the only two persons residing together and since the death of the deceased has occurred in the dwelling house of the appellant and the deceased, in view of the provisions of Section 106 of the Indian Evidence Act, the burden is shifted upon the appellant. The ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:44:54 ::: 5 APEAL152-15.odt learned APP submits that the appellant has failed to discharge the said burden and as such the conviction is rightly recorded by the learned trial Judge.
7. With the assistance of the learned counsel for the appellant and the learned Additional Public Prosecutor, we have scrutinized the entire evidence.
8. In the present case, the relationship between the accused and the deceased is not disputed, neither it is disputed that it is the accused who has informed about the incident immediately on 2.6.2012 to the Police Station and on the basis of which a merg came to be registered and during the investigation, certain articles came to be seized. As discussed hereinabove, the learned counsel for the accused has disputed the very issue regarding the death being homicidal.
9. The Division Bench of this Court in the case of Nitin Digamber Kothawade .vs. State of Maharashtra reported in 2015 (4) Mh.L.J. 626 has summarised various distinguishing features of death by hanging and death by strangulation after referring to the various authorities of Medical Jurisprudence including Dr. Modi, Dr. Parekh, Dr. Taylor ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:44:54 ::: 6 APEAL152-15.odt and Dr. H.W.V. Cox as under:-
Sr. Death by Strangulation Death by Hanging Features noted on No. dead body of Surekha in post-
mortem
examination
1 Ligature is below the Ligature is above the Ligature was above
cartilage thyroid the thyroid
cartilage
2 Eyes are wide open, Eyes are either closed or Eyes were closed
prominent and pupils partly opened
dilated
3 Tongue is swollen and Tongue is caught Tongue was caught
becomes livid between the teeth. by teeth and it was
not swollen and
livid, it was found
congested.
4 Palms are invariably Palms were found
found clenched open
5 Post-mortem lividity Post-mortem lividity Post-mortem
tends to settle in the lividity was found
lower limbs present on both
lower limbs
6 Due to force, internal Did not notice any
bleedings or internal bleeding or
haemorrhage in the haemorrage of the
larynxial structure is larynxial structure.
invariably found
10. In the light of the aforesaid, we will examine the material in the present case to ascertain as to whether the death is by strangulation or by hanging. Insofar as the first feature is concerned, it could be seen that in case of death by strangulation, the ligature is below the cartilage, wheres in case of death by hanging, ligature is above the thyroid. In the present case, the perusal of the inquest panchanama would reveal that the ligature marks were found on the neck of the ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:44:54 :::
7 APEAL152-15.odt deceased. It will also be relevant to refer to injury no.4 of Column no.17 of the post mortem report.
"Abrasion present over anterior part of neck over thyroid cartilage with few haemorrhagic spot underlying skin of size 8 x ½ c.m."
It is to be noted that in the present case, the death has occurred on 2.6.2012. For the reasons best known to the prosecution, the post mortem is conducted in the afternoon of 5.6.2012. The perusal of the evidence of the Investigating Officer PW12 Sonwane would also reveal that he has admitted that in the inquest panchanama it is mentioned that the deceased might have committed suicide by hanging as there was mark of ligature. He further admits that in the photograph also it is mentioned that there is ligature mark of rope. It could thus be seen that insofar as the first test is concerned, it tilt towards the possibility of death by hanging.
11. Insofar as the second test is concerned, in the case of death by strangulation, eyes are wide open, prominent and pupils are dilated whereas in the case of death by hanging, eyes are either closed or partly opened. The perusal of column no.13 of the post mortem report would reveal that eyes are protruded and left eye is protruded more than right. ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:44:54 :::
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12. The next test states that in case of death by strangulation, tongue is swollen and becomes livid whereas in case of death by hanging, tongue is caught between the teeth. The post mortem report shows that the tongue is protruded and is caught in between the teeth. As such this test also tilts towards a case of hanging.
13. The next test shows that in case of strangulation, the palms are invariably found clenched. However, in the present case, the palms are found extended with slight clenching. It, therefore, cannot be said that the said test also tilts towards the death by strangulation.
14. It could further be seen that in case of death by strangulation, there is internal bleeding or haemorrhage in the larynxial structure. However, the post mortem report would show that no internal bleeding or haemorrhage in the larynxial structure was noticed. PW11 Dr. Kuthe has clearly admitted that in case of hanging, the brain is found congested so also larynx and heart are found congested. The perusal of the post mortem report would reveal that the lungs, heart and brain have all been found congested.
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15. It could further be seen that from Modis Medical Jurisprudence, in case of hanging, the fracture of larynx and trachea is rarely seen whereas in case of strangulation, there is fracture of the larynx trachea and hyoid bone. PW11 Dr. Kuthe has categorically admitted in his cross-examination that in the said case hyoid bone was intact. Not only that but he has admitted that he had sent thyroid cartilage and hyoid bone for histopathological test and the histopathological report shows that there was no injury on hyoid bone and thyroid cartilage.
16. In view of this evidence, we find that the prosecution was not even in a position to establish beyond reasonable doubt that the death was by strangulation. In any case, as discussed hereinabove, the possibility of death by hanging could not be ruled out. It is further to be noted that PW12 Investigating Officer Sonwane has given admissions in his cross-examination that in the inquest panchanama it is mentioned that there was a ligature mark below chin, the photographs also showed the ligature mark. He has further admitted that he has not sent the rope to the Medical Officer for his opinion to know whether the death could be caused by hanging. Not only that Nylon rope was also not produced ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:44:54 ::: 10 APEAL152-15.odt before the Court. He has also admitted that he has not made investigation in the direction that the deceased died of suicidal death.
17. It is further to be noted that most of the independent witnesses in the present case have turned hostile. Not only that but even the first informant PW6 Patali, the uncle of the deceased PW7 Motibin has not supported the prosecution case. On the contrary PW8 Smt. Sukhwasi, the mother of the deceased, has herself admitted in her examination-in-chief that when she saw the dead body of her daughter, there was a mark of ligature. Same is the case with the evidence of PW9 Smt. Dhansira, the elder sister of the deceased.
18. No doubt that the learned APP is right that in view of the provisions of Section 106 of the Indian Evidence Act since the death of the deceased has occurred in a house wherein both of them were residing together, the burden would shift upon the accused. However, even in that case the initial burden would be on the prosecution to establish that the death was homicidal. The prosecution is not absolved of discharging the initial burden. As discussed hereinabove though the first information regarding the death of the deceased was given by ::: Uploaded on - 19/01/2017 ::: Downloaded on - 27/08/2017 12:44:54 ::: 11 APEAL152-15.odt the accused to the Police in the evening of 2.6.2012, the post mortem is conducted in the afternoon of 5.6.2012. No explanation as to why the post mortem was not conducted for almost 60 hours is coming forward from the prosecution. The evidence of PW12 would reveal that though the rope which according to the accused, was used by the deceased for committing suicide, was seized, neither the same was sent to the medical expert for his opinion nor the same was produced before the Court. He has further admitted that he had not conducted the investigation as to whether there was a possibility of committing suicide. We, therefore, find that the prosecution has not been conducted in a fair manner.
19. It would further be pertinent to note that the accused has examined himself as DW1. He has narrated the entire version as given by him in his oral report. In spite of thorough cross-examination, no damage has been done to his case. In view of Section 8 of the Indian Evidence Act, his conduct also needs to be taken into consideration. After coming to know about the death of deceased, he has immediately informed the Police Station. In that view of the matter, we find that the accused is entitled to benefit of doubt. The appeal, therefore, deserves to be allowed.
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20. Criminal Appeal No. 152 of 2015 is allowed. The judgment and order of conviction passed by the learned Additional Sessions Judge, Warora, is hereby quashed and set aside. The appellant is acquitted for the offence punishable under Section 302 of the Indian Penal Code. The appellant shall be set at liberty forthwith, if not required in any other case. The amount of fine, if any paid, be returned to the appellant.
(Kum. Indira Jain, J. ) (B.R. Gavai, J.)
...
halwai/p.s.
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