Bombay High Court
Sanotsh Jairam Phusande vs The State Of Mah.Thr. Pso Washim on 4 April, 2018
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 224 OF 2004
APPELLANT : Santosh S/o Jairam Phusande
Aged about 30 years,
R/o Poharadevi, Tah. Manora,
Dist. Washim
VERSUS
RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Manora, Dist. Washim
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Ms. F. H. Haidari, Advocate for the appellant.
Mr. N. R. Rode, A. P. P. for the respondent/State.
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CORAM : V. M. DESHPANDE, J.
DATE : APRIL 04, 2018.
ORAL JUDGMENT
By the present appeal, the appellant is questioning the correctness of judgment and order of conviction and sentence passed by the learned Ad-hoc Additional Sessions Judge, Washim dated 25.3.2004 in Sessions Trial No. 119/2000. By the impugned judgment, the appellant is convicted for the offence punishable under ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 ::: 2 APPEAL224.04.odt Sections 498-A and 306 of the Indian Penal Code and is directed to suffer rigorous imprisonment for five years and pay a fine of Rs.2,500/- and in default of payment of fine, to undergo further rigorous imprisonment for six months.
2. In nut shell, the prosecution case is as under :
A] Marriage of deceased Sunita was performed with the appellant prior to eight years of 21.6.2000. On 21.6.2000, Sunita died and according to the prosecution it is a suicidal death. Jairam Phusande and Kalawati Phusande are the parents of the appellant , whereas Gajanan, Dadarao and Sau. Lankabai Phusande are the brothers and sister-in-law of the appellant. They were also arrayed as accused in Crime No. 54/2000, registered with Police Station, Manora, Dist. Washim, which was registered on the basis of oral report (Exh.24) lodged by Manohar Dhore (PW1), the brother of deceased Sunita.
From the wedlock, Sunita gave birth to a male child by name Ganesh. After the marriage, Sunita was treated nicely for a period of two years and thereafter all the accused persons started giving ill-treatment to Sunita on demand of money. Whenever she ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 :::
3 APPEAL224.04.odt used to come to Mangrulpir, where the first informant used to reside, she used to disclose the same to him.
Prior to 15 days of the occurrence, Sunita had been to Mangrulpir along with her son and disclosed that for household purposes Rs.10,000/- is demanded by the appellant and when Sunita informed about the poor financial status of her father and brother, she was mercilessly beaten and she was sent to Mangrulpir. The first informant thereafter dropped a letter at Poharadevi, where the appellant used to reside and called him at Mangrulpir. After his arrival there, the first informant pleaded him that the amount will be given to him after 7-8 days and thereafter the deceased went along with the appellant at her matrimonial place.
B] On 21.6.2000, an unknown person came to the house of the first informant at Mangrulpir and informed him about consumption of poison by Sunita and about her death. Therefore, the first informant firstly went to Shevti, where the parents and other brother used to reside, informed the said fact and they all came to Pohradevi where they got information that dead body of Sunita was sent for post mortem.
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4 APPEAL224.04.odt C] PW7 Digambar Chavan, who registered the first information report of Manohar (PW1) as Crime No. 54/2000, took the investigation to himself. During the investigation, he recorded the statements of various persons and it was revealed to him that the deceased committed suicide due to ill-treatment, which she has received at the hands of the appellant and his other relatives and therefore, he filed the final report in the Court of law. The Court, where the final report was presented, found that the case is exclusively triable by the Court of Sessions. Therefore, committal order was passed.
D] The learned Additional Sessions Judge, Washim framed the Charge against the appellant and other five accused persons for the offences punishable under Sections 498-A and 306 read with Section 34 of the Indian Penal Code. In order to bring home the guilt of the accused persons, the prosecution has examined in all seven witnesses and also relied upon various documents duly proved during the course of the trial.
By the impugned judgment, the learned Judge of the Court below, except the appellant, acquitted all other accused ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 ::: 5 APPEAL224.04.odt persons for the offences punishable under Sections 498-A and 306 read with section 34 of the Indian Penal Code. The State chose not to prefer any appeal against their acquittal. It is the appellant, who has questioned the correctness of the impugned judgment by preferring the present appeal.
3. I have heard Ms. F. N. Haidari, the learned counsel for the appellant and Shri N. R. Rode, the learned Additional Public Prosecutor for the State. Both the learned counsel with equal vehemence submitted their respective submissions and with their able assistance, I have gone through the record and proceedings.
4. Before registration of the crime for the offences punishable under Sections 498-A and 306 read with Section 34 of the Indian Penal Code, an accidental death vide A.D. No.21/2000 (Exh.29) was registered under Section 174 of the Code of Criminal Procedure. The cause for registration of this accidental death was the intimation (Exh.28) given by the acquitted accused Jairam Phusande about the death of his daughter-in-law Sunita. ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 :::
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5. PW7 Digambar Chavan, who was attached to Manora Police Station at the relevant time was entrusted with the enquiry in A.D. No.21/2000. During the said enquiry proceedings, he visited the spot of the incident and prepared spot panchanama of the spot (Exh.30). Inquest was also done on the dead body in presence of panchas (Exh.31). Thereafter, he sent the dead body of Sunita to Mangrulpir Rural Hospital for post mortem. The Investigating Officer also seized a tin of MonoChrotophos and a steel glass, which was emitting smell of poisonous substance under seizure memo (Exh.33). The post mortem report (Exh.34) was also collected from the Medical Officer of Rural Hospital, Mangrulpir. In the meanwhile, as observed, Manohar (PW1) on 24.6.2000 lodged the first information report.
6. The date of the incident is 21.6.2000, whereas the date of lodging of the first information report is 24.6.2000. Thus, there is delay of three days. Merely because there is a delay in lodging the first information report, the Court should not view the case of the prosecution with suspicion, provided the explanation is offered by the prosecution for lodging the report at belated stage. ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 :::
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7. The first information report (Exh.24) does not offer any explanation whatsoever in nature by PW1 Manohar, the first informant, approaching to the police for lodging the report belatedly. It was always open for the prosecution to offer such explanation during trial which was not offered at initial stage i.e. at the time of lodging of the first information report, however explanation is not offered even at trial stage. All the prosecution witnesses, especially Manohar (PW1), the first informant is blissfully silent in his evidence regarding not lodging the first information promptly. Not lodging promptly the first information report gives opportunity for embellishment. Non-supplementing good reasons for lodging the first information report promptly can be one of the factors of its own importance while evaluating the prosecution case in its totality.
8. Death can be occurred (1) naturally, (2) accidentally (3) there can be suicidal death or (4) death can be caused which can be termed as homicidal death.
9. In the present case, the appellant was never charged that he has committed homicidal death of his wife. According to the ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 ::: 8 APPEAL224.04.odt prosecution, the deceased committed suicide. Therefore, the prosecution was under an obligation to prove that Sunita committed suicide.
10. According to the prosecution, which is also endorsed by the learned Judge of the Court below that Sunita committed suicide by consuming poisonous substance. When the appellant was examined under Section 313 of the Code of Criminal Procedure, it was put to him that Sunita committed suicide. Of course, to such question, the reply of the appellant was that of "false".
11. According to the learned Judge of the Court below, Sunita committed suicide because of seizure of one small container of poison and a glass and the post mortem report speaks that stomach contents, teeth and tongue were smelling like insecticide compound together with inquest panchanama which discloses that nail of Sunita had turned bluish.
12. In this backdrop, firstly, I would like to discuss the spot panchanama (Exh.30). The relevant portion from the spot ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 ::: 9 APPEAL224.04.odt panchanama is reproduced herein below in vernacular :
"?kjkps leksj vksljhr njokT;kyk ykxwu xknhoj ,d L=hps izsr iMysys fnlr vkgs-
lnjps iszr gs fQ;kZfn t;jke panzHkku iqlkaMs ;kauh R;kaph lqu ukes lquhrk larks"k iqlkaMs o; 25 o"kZ jk- iks-nsoh fgps vlY;kps vksG[kqu iapk le{k lkaxhrys."
Thus, when the Investigating Officer reached to the spot of incident. During the enquiry of accidental death, he noticed the dead body in 'Osari' (Vharanda), adjacent to the door. In the spot panchanama itself, in detail, in presence of the panchas, the Investigating Officer has described the body posture of the deceased and thereafter the panchanama recites as under :
"e`rdps vaxkoj xqykch jaaxkph lkMh o xqykch jaxkps Cykmt ?kkrysys fnlr vkgs-
When the spot panchanama is perused very minutely and with microscopic eyes, then it revealed that something is inserted after the vernacular portion reproduced above and before starting of the last paragraph giving the boundaries of the house, which reads thus :
"rlsp vkokjkr ,d fo"kkjh vkS"k/kkph 'kh'kh LVhypk Xykl fnlr vkgs"
The said appears to be written after the entire panchanama was reduced into writing. Thus, it is crystal clear that ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 ::: 10 APPEAL224.04.odt the container and still glass, which according to the prosecution were seized, are not from near the body of deceased Sunita, but from the courtyard. With respect to the learned Judge of the Court below, he has missed this point to reach to conclusion that Sunita must have consumed poison.
13. The inquest panchanama (Exh.31) is drawn in presence of three panchas namely Ramesh Dhoke, Laxmanrao Raut and Smt. Yamunabai Gawande. Since, this document is an admitted document, the prosecution has not examined any of the panch witnesses. The panchanama is totally silent that any of the panchas noticed that from the body or from the mouth of deceased, smell like poisonous substance was emitting. This particular document is the first document about the observations of the dead body. Had the body was emitting smell of foul substance, it would not have gone unnoticed from three respectable panch witnesses and there was no reason for the Investigating Officer not to record the same in the inquest panchanama. The learned Judge of the Court below has also not considered this aspect and has appeared to have impressed that the nails were turned bluish.
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14. Insofar as post mortem report (Exh. 34) is concerned, the cause of death as per the autopsy surgeon was as under :
"Exact cause of death cannot be determined on post mortem examination. However, it may be due to poisoning by unknown substance. Hence, viscera is preserved and it should be sent for chemical analysis to determine the exact cause of death and substance responsible."
Though, the viscera was sent to the Chemical Analyzer, till culmination of the trial, the Chemical Analyzer's report was not produced on record. Thus, till culmination of the trial, the final cause of death and the poisonous substance remained in dark. Therefore, much importance cannot be attached to the seizure memo (Exh.33) about the container of Monophrotophos. Though, the said was sent to Chemical Analyzer, the report did not receive. Further, merely because of admission given by the defence the post mortem report is accepted, still the prosecution is not absolved from proving its contents by examining the Doctor, is the law laid down by the Division Bench of this Court in 1980 Cri. L.J. 853 in the case of Ganpat Raoji Suryavanshi .vs. State of Maharashtra. In the said reported case, the Division Bench of this Court has ruled that the memorandum of post-mortem examination is not a substantive evidence by itself. It is a document containing the notes made by a ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 ::: 12 APPEAL224.04.odt Doctor contemporaneously while he is conducting the post-mortem examination. That memorandum can be used by the doctor for refreshing his memory while he is giving evidence in Court. It may be used by the defence, if necessary, for contradicting the doctor's evidence in the Court. The memorandum itself can never be substantive evidence though it can be exhibited in the Court when the doctor is examined as a witness and has deposed to the contents of that document. No court can come to a proper conclusion relating to the culpability of an accused person only on the basis of the recital of the injuries in a memorandum of the post mortem examination. Therefore, the Division Bench rules that the examination of Doctor is sine qua non for proving the post mortem report. In the present case, Doctor is not examined by the prosecution. Therefore, the contents of post mortem report, in my view, are remained to be proved.
15. In view of the aforesaid, the nature of death of Sunita is not proved. IN my view in absence of final opinion of the doctor about the cause of death it cannot be said that prosecution has proved that Sunita committed suicide. Therefore, to that extent, the benefit has to be extended in favour of the accused and therefore, the appellant cannot be convicted for the offence punishable under ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 ::: 13 APPEAL224.04.odt Section 306 of the Indian Penal Code.
16. The next question is whether the prosecution has proved its case for the offence under Section 498-A of the Indian Penal Code. Merely because the appellant is acquitted of the offence punishable under Section 306 of the Indian Penal Code, that itself is not sufficient for the appellant to claim his acquittal for the offence under Section 498-A of the Indian Penal Code, since, the offence under Section 498-A is distinct than the offence punishable under Section 306 of the Indian Penal Code.
17. It is established on record that prior to eight years of death, Sunita married with the appellant. She delivered a male child. Till filing of the report, which culminated into the trial, at no point of time any report was lodged against the appellant for any type of ill- treatment or unlawful demand. For the purposes of Section 498-A of the Indian Penal Code, cruelty is defined. Since, the appellant is found to be not guilty for the offence punishable under Section 306 of the Indian Penal Code, the case of the prosecution will have to be examined as to whether it falls under clause 'B' of the explanation. ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 :::
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18. The evidence of PW2 Mahadev Dhore, PW3 Gajanan Dhore, PW4 Keshao Dhore, PW5 Padma Dhore and PW6 Baby Dhore are on the similar line with PW1 Manohar Dhore, the first informant. Their evidence is of stereo type that initially for two years, Sunita received good treatment at the hands of all the accused persons. However, after she gave birth to a male child, ill-treatment started. It appears to me improbable as in our country generally, expectation from daughter-in-law is that she should give berth to a male child.
19. Further, in the first information report and even from the evidence, demand for Rs.10,000/- was a solitary demand and even according to the witnesses, it was for household purposes "?kj?kqrh dkj.kkdfjrk". In my view, if the husband is pleading with his in-laws for extending some financial help, it will be rather difficult to term it as an unlawful demand, as mentioned in the definition of 'cruelty'.
20. Apart from that, it is brought on record in the cross- examination of Manohar (PW1) that marriage of Sunita with the appellant was settled with the consent of both the sides and that time ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 ::: 15 APPEAL224.04.odt both the sides were knowing about weak financial condition of each other. Therefore, it appears improbable that when the appellant was knowing that the financial position of his in-laws is weak and his demand is not going to be fulfilled, he will make such demand.
21. Further, it is established that father of Manohar, namely Kisan and his uncle Champat, they married with two sisters. Savita is the daughter of Champat. This Savita is also married to one Santosh, who also resides at Poharadevi, the matrimonial place of Sunita. Not only that, it is brought on record that Savita's matrimonial house is situated just 10 - 12 houses away from the house of Sunita. Thus, Savita is residing in nearby vicinity of Sunita. If there was any type of ill-treatment from the appellant, it would have been most natural on the part of Sunita to disclose the same to her sister, who resides just 12 houses away from her house. Savita would have been the best prosecution witness insofar as ill-treatment to Sunita is concern, however, for the reasons best known to the prosecution, Savita is not examined. In view of the fact that only on one occasion the appellant demanded Rs.10,000/- for household purposes, in my view it would be harsh to punish the appellant for ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 ::: 16 APPEAL224.04.odt the offence punishable under Section 498-A of the Indian Penal Code. Consequently, I pass the following order :
ORDER
1. The appeal is allowed.
2. The judgment and order passed by the learned Ad-hoc Additional Sessions Judge, Washim dated 25.3.2004 in Sessions Trial No. 119/2000, convicting the appellant for the offences punishable under Sections 498-A and 306 of the Indian Penal Code, is hereby quashed and set aside.
3. Appellant - Santosh S/o Jairam Phusande is hereby acquitted of the offences punishable under Sections 498-
A and 306 of the Indian Penal Code.
4. His bail bonds shall stand cancelled.
5. Fine amount deposited, if any, be refunded to the appellant.
6. With this, the appeal is allowed and disposed of.
JUDGE Diwale ::: Uploaded on - 06/04/2018 ::: Downloaded on - 07/04/2018 01:26:06 :::