Bombay High Court
Vishal S/O. Siddharth Mendhe vs State Of Maharashtra Thr. Police ... on 5 July, 2018
Author: Manish Pitale
Bench: Manish Pitale
1 050718 appeal 173.17 judg..odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.173 of 2017
Vishal s/o Siddharth Mendhe,
Aged about 30 years, Occ. Labourer,
R/o.-Kopara, Tah. Seloo, Distt. Wardha. .... Appellant.
-Versus-
State of Maharashtra,
through Police Station Officer, Police Station Bori,
Distt. Nagpur. .... Respondent.
Shri P.K. Bezalwar, Advocate for appellant.
Mrs. Shamsi Haider, APP for State.
Coram : Manish Pitale, J.
Date of reserving the judgment on : 13-06-2018.
Date of pronouncing the judgment on : 05-07-2018.
J U D G M E N T
By this appeal, the appellant has challenged the judgment and order dated 06-02-2017 passed by the Court of Additional Sessions Judge-1, Nagpur (trial Court) in Sessions Trial No.459 of 2011, whereby the appellant has been convicted under Section 305 of the Indian Penal Code (IPC) and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 2000/-.
2] The prosecution case leading to the conviction and sentence ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:53:20 ::: 2 050718 appeal 173.17 judg..odt imposed upon the appellant, was that on 04-04-2011, at about 11.00 a.m., the mother of one Ashwini came to know from one of her tenants that her daughter i.e. Ashwini had poured Kerosene on herself and that she had set herself on fire. The mother of Ashwini immediately rushed to her house and poured water to extinguish the flames after which the said Ashwini was taken to the hospital. A report was lodged in respect of the said incident on the same day i.e. on 04-04-2011 and it was stated therein that the mother of Ashwini had received calls on her mobile number from a person claiming to be Pravin Chafle. The said person was asking her to send Ashwini to a place called Takalghat as he wanted to marry her. When the mother gave the mobile to Ashwini, the said person gave her threats and said that if she refused to come, he would visit her house and take her away. According to the mother, it was due to such torture by the said person that Ashwini poured Kerosene on herself and set herself on fire.
3] On 05-04-2011, said Ashwini was shifted to Government hospital at Nagpur. On 07-04-2011, in the hospital a doctor gave certificate about fitness of the said Ashwini to give statement, upon which an Assistant Sub-Inspector (PW-4) recorded the statement of the said Ashwini. She stated that on 03-04-2011, a person claiming to be Pravin Chafle had called on her mother's mobile and stated that he wanted to marry her and further that if she refused, he would finish her. She claimed that later she came to know that the mobile number from which the call had come belonged to the appellant, who was also a tenant in the house belonging to her family. Due to such events, she set herself on fire. On the same day at about 3.00 p.m. the doctor gave fitness certificate, upon ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:53:20 ::: 3 050718 appeal 173.17 judg..odt which the Executive Magistrate recorded statement of the said Ashwini. In this statement, she stated that on 03-04-2011, the appellant had called on her mother's mobile and threatened her that if she did not marry him, he would finish her. Due to such harassment she had set herself on fire. On 11-04-2011, the said Ashwini died at about 11.30 p.m. 4] The initial report about the incident had been lodged by the mother of Ashwini i.e. (PW-3) on 04-04-2011. A report of accidental death was recorded under Section 174(1) of the Code of Criminal Procedure, 1973 and on 23-04-2011, an oral report was lodged by the father of the said deceased Ashwini i.e. (PW-5), on the basis of which First Information Report (FIR) dated 23-04-2011 was registered against the appellant. The Police conducted investigation in the matter and found that on 03-04-2011, phone calls from the mobile number registered in the name of the father of appellant and being used by the appellant, were made to the mobile number of (PW-3) mother of the deceased. The timings of the said calls made on the mobile number of PW-3 from the mobile of the appellant demonstrated that repeated calls were made, as had been claimed by PW-3. On being told by the deceased, her father i.e (PW-5) told the Police that a chit (Exhibit-35) had been found in the bag of the deceased, which had been given by the appellant. The said chit was a torn paper from a small diary which was seized by the Police. In the said chit it was stated that the author of the chit wanted to have sexual favours from the deceased and if she refused he would divulge that she was having an affair with another person. The appellant was arrested and samples of his handwriting were taken and a small diary was recovered from his custody. The Police found upon ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:53:20 ::: 4 050718 appeal 173.17 judg..odt investigation that there was no person named Pravin Chafle. According to the Police, the material that was gathered during investigation demonstrated that it was the appellant who had claimed to be Pravin Chafle and he had made the phone calls to threaten the deceased and that he was the person who gave her the chit (Exhibit-35), seeking sexual favours from her. On this basis, the Police submitted charge-sheet against the appellant. He was charged with having committed offence under Section 305 of the IPC.
5] In support of its case, the prosecution examined 13 witnesses, of whom the material witnesses were (PW-1) maternal uncle of the deceased, (PW-3) mother of the deceased, (PW-4) Police official who recorded dying declaration at Exhibit-53, (PW-5) father of the deceased, (PW-8) panch witness for seizure of chit at Exhibit-35, (PW-11) the doctor who gave fitness certificate, (PW-12) the handwriting expert and (PW-13) the Investigating Officer. On the basis of the evidence of prosecution witnesses as also the exhibits on record, particularly (Exhibit-35) the chit, (Exhibit-53) first dying declaration, (Exhibit-101) second dying declaration and (Exhibit-156) call records of mobile, the trial Court found that the prosecution had successfully proved its case against the appellant beyond reasonable doubt. On this basis, the trial Court convicted and sentenced the appellant by the impugned judgment and order.
6] Shri P.K. Bezalwar, learned Counsel appearing on behalf of the appellant submitted that the trial Court had erred in convicting and sentencing the appellant because the evidence on record was not sufficient to connect the appellant with the incident in question. The alleged calls ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:53:20 ::: 5 050718 appeal 173.17 judg..odt made on the mobile of the mother of deceased and that the chit (Exhibit-
35) also could not be attributed to the appellant. It was submitted that there were many gaps in the evidence on record and that the conviction and sentence imposed by the trial Court was unsustainable.
7] On the other hand, Mrs. Shamsi Haider, learned APP appearing on behalf of the State submitted that the investigation in the present case was carried in a scientific manner and that the call records at Exhibit-156, the chit (Exhibit-35) and the evidence of handwriting expert demonstrated that it was indeed the appellant who had harassed the deceased minor girl to such an extent that she was forced to commit suicide. On this basis, the learned APP submitted that the appeal deserved to be dismissed.
8] Heard learned Counsel for the parties. The evidence on record shows that although initially the deceased minor girl and her mother (PW-3) stated that one Pravin Chafle had repeatedly called on the mobile of PW-3, threatening the deceased and asking her to marry him, later, the deceased as well as her mother (PW-3) and the prosecution witnesses stated that it was in fact the appellant who had undertaken the said action leading to the deceased setting herself on fire. The investigation conducted by the Police found that there was no person named Pravin Chafle. In this situation, it has to be examined as to what was the evidence and material on record to connect the appellant with the incident in question and the material that indicated that it was indeed the appellant who had not only called and threatened the deceased by making calls on mobile, but he was the person who gave the chit (Exhibit-35) asking for sexual favours.
::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:53:20 :::6 050718 appeal 173.17 judg..odt 9] In this connection, the documents at Exhibit-35 i.e. chit, (Exhibit-53) the first dying declaration, (Exhibit-101) second dying declaration and (Exhibit-156) the call records assume significance. In the first dying declaration given at about 11.30 a.m. on 07-04-2011 at Exhibit-53, the deceased had stated that a person claiming to be Pravin Chafle had repeatedly made calls on mobile between 8 p.m. and 9 p.m. on 03-04-2011 stating that he loved her and threatened that if she did not marry him he would kill her. She claimed that a written chit was also given to her which her father had given to the Police and further that upon information being given to the Police Station it had come to the light that the mobile number belonged to the appellant, who was a tenant in the house belonging to her family. She stated that due to the aforesaid incident she was driven to set herself on fire at about 11 a.m. on 04-04- 2011. The doctor (PW-1) had given a certificate that the deceased was fit to give statement. The said statement was recorded by (PW-4) Assistant Sub-Inspector.
10] The second dying declaration at Exhibit-101 was recorded at about 3.00 p.m. on 07-04-2011 itself. This was recorded before the Executive Magistrate. In this dying declaration, the deceased again stated that the calls were received on mobile on 03-04-2011 between 8 p.m. and 9 p.m. wherein threats as stated above were given to her due to which on the next day she set herself on fire. In this dying declaration, the deceased named the appellant as the person who had made those phone calls. Although the Executive Magistrate could not be examined by the prosecution as he had suffered paralytic stroke, the doctor (PW-11) ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:53:20 ::: 7 050718 appeal 173.17 judg..odt proved the said second dying declaration (Exhibit-101), as he claimed that the deceased had made the statement in his presence before the Executive Magistrate. It was the same doctor (PW-11) who had given fitness certificate for this dying declaration also.
11] Exhibit-35 was a chit recovered at the instance of the father of deceased i.e (PW-5). The said witness stated that his daughter, the deceased had told him that the appellant had given a chit to her which was lying in her bag. He took the chit from her bag and handed over it to the Police on 06-04-2011. The said chit (Exhibit-35) is on a page of a small diary wherein the author has stated that even if the person to whom the chit was addressed could not love her, he could certainly have sex with her. It was further stated that if she did not give sexual favour to him, he would divulge to her family that she loved another person and that he could call that person to her house. After the said chit was recovered and the appellant was arrested, specimens of his handwriting were collected by the Police and they were sent to the handwriting expert. A report of the handwriting expert was brought on record and the expert i.e PW-12 was examined by the prosecution. The said witness testified to the fact that the handwriting on the chit at Exhibit-35 was that of the appellant based on the specimens of handwriting obtained from the appellant. The trial Court also found on comparison that it was indeed the handwriting of the appellant on the said chit at Exhibit-35.
12] At Exhibit-156 were the call records of mobile phone of (PW-3) mother of the deceased. The call records were proved by means of a certificate obtained from the Nodal Officer of the service provider under ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:53:20 ::: 8 050718 appeal 173.17 judg..odt Section 65-B of the Indian Evidence Act, 1872. The said certificate vouched for the fact that the call records indeed pertained to the mobile number of mother of deceased (PW-3). The said call records demonstrated that there were repeated calls made from the mobile of the appellant, which was registered in the name of his father. The timings of the said phone calls matched with the timings mentioned in the two dying declarations, as also the evidence of (PW-3) mother of the deceased.
13] The aforesaid documentary evidence was on record connecting the appellant with the incident in question. Apart from this, the oral evidence of (PW-3) mother of the deceased was on record which corroborated the sequence of events as stated by the deceased in two dying declarations at Exhibits-53 and 101. The main contention raised on behalf of the appellant was that the aforesaid documentary and oral evidence on record did not connect the appellant with the incident in question because there was nothing on record to show that Pravin Chafle and the appellant were one and the same person and that the connection sought to be established by the prosecution was too far fetched and unbelievable.
14] The advantage sought to be taken by the appellant in the present matter about the name of Pravin Chafle being taken by the deceased and her mother (PW-3) in the first instance, needs to be examined. It is no doubt true that (PW-3) mother of the deceased stated in her oral report dated 04-04-2011 i.e. the date of incident that calls were received on the earlier day in the evening from a person who told his name as Pravin Chafle. Thereafter, she has stated in her report the details about ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:53:20 ::: 9 050718 appeal 173.17 judg..odt the threats made to the deceased. In this report (PW-3) mother of the deceased has specifically given the mobile number from which the said calls were received. The deceased did state the name of Pravin Chafle in her first dying declaration dated 07-04-2011 recorded by (PW-4) Assistant Sub-Inspector at about 11.30 a.m. She stated that a person telling his name as Pravin Chafle made the phone calls on mobile of PW-3 on 03-04-2011 between 8 p.m. and 9 p.m. Thereafter, in the said dying declaration she has stated that after information was given to the Police about the incident, it had come to light that the said mobile number belonged to the appellant who was a tenant in the house belonging to her family. In the subsequent dying declaration dated 07-04-2011 (Exhibit-101) recorded at about 3.00 p.m. also the deceased has directly named the appellant as the person who had made those phone calls and harassed her, driving her to commit suicide by setting herself on fire. The call records at Exhibit-156 duly certified as required under Section 65-B of the Indian Evidence Act, 1872, show that the calls were indeed made repeatedly from the said number to the mobile number of (PW-3) mother of the deceased on 03-04-2018 in the evening. These call records supported the statement made by (PW-3) in the oral report dated 04-04- 2011 and the statement made by the deceased in the two dying declarations at Exhibits-53 and 101.
15] Apart from this, the chit at Exhibit-35 was in the handwriting of the appellant, as proved by the handwriting expert (PW-12). The trial Court also compared the handwriting and found that it was indeed that of the appellant. There is nothing to show that the finding rendered by the trial Court was erroneous in this regard. Thus, although the name of Pravin ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:53:20 ::: 10 050718 appeal 173.17 judg..odt Chafle was indeed taken by the deceased and (PW-3) mother of the deceased initially, it became clear upon investigation by the Police that there was no person named Pravin Chafle and that the material on record unmistakably indicated that it was indeed the appellant himself who had been calling the deceased by claiming to be Pravin Chafle. In such a situation, the appellant cannot claim any advantage on the basis that the deceased and her mother (PW-3) had named Pravin Chafle and not him in the first instance. In the face of the evidence on record i.e. the evidence of (PW-3) mother of the deceased, the dying declarations of the deceased at Exhibits-53 and 101, the call records at Exhibit-156, the chit at Exhibit-35 and the opinion of the handwriting expert (PW-13), it was for the appellant to explain as to how and why he could not be connected with the incident in question and why he could not be held liable as claimed by the prosecution. There was no explanation forthcoming from the appellant.
16] The trial Court has taken into account these aspects in the correct perspective and it is found that the appellant did not challenge the fact that the contents of the chit at Exhibit-35 were in his handwriting and call records did not pertain to the mobile registered in the name of his father and used by him. On this basis, the trial Court found that there was sufficient material on record to prove the culpability of the appellant in the facts and circumstances of the present case. The trial Court not only found the evidence of the handwriting expert (PW-13) believable, but, the Court itself compared the handwriting of the specimens with that of the chit at Exhibit-35 and found that it was indeed written by the appellant. The contents of the said chit at Exhibit-35 were correctly found by the trial Court to be scandalous and demanding sexual favours from the ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:53:20 ::: 11 050718 appeal 173.17 judg..odt deceased who was young girl of only 14 years of age. On this basis and the other evidence on record, the trial Court found the appellant guilty of the offence for which he was charged. The ingredients of the offence under Section 305 of the IPC were clearly proved in the present case and since the evidence and material on record unmistakably pointed towards the appellant as the person who abetted the commission of suicide by the deceased who was only 14 years of age, no fault can be found with the conviction and sentence imposed by the trial Court against the appellant.
17] In the light of the above, no fault can be found with the impugned judgment and order passed by the trial Court. Accordingly, this appeal is dismissed and the judgment and order of the trial Court is confirmed.
JUDGE Deshmukh ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:53:20 :::