Bombay High Court
State Of Mah.Thr.P.S.O.Bhadrawati vs Rajesh Khushalrao Bhagat & Anr on 8 March, 2018
Author: B.R.Gavai
Bench: B.R.Gavai, M.G.Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.333 OF 2003
with
CRIMINAL APPEAL NO.205 OF 2003
1.CRIMINAL APPEAL NO.333 OF 2003 :
State of Maharashtra,
through Police Station Officer,
Bhadrawati, Distt. Chandrapur. .......... APPELLANT
// VERSUS //
1. Rajesh Khushalrao Bhagar,
Aged about 33 years, r/o.
O.F.Chanda, District
Chandrapur.
2. Khushalrao Khatuji Bhagat,
Aged about 50 years, r/o.
Dehegaon, Tq.Wani, District
Yavatmal. .......... RESPONDENTS
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____________________________________________________________
Mr.M.K.Pathan, A.P.P. for Appellant/State.
Mr.R.M.Daga, Advocate for the Respondents/Accused.
____________________________________________________________
2.CRIMINAL APPEAL NO.205 OF 2003 :
Rajesh s/o. Khushalrao Bhagar,
Aged about 33 years, r/o.
O.F.Chanda, District
Chandrapur. .......... APPELLANT
// VERSUS //
The State of Maharashtra,
through P.S.O., Bhadrawati. .......... RESPONDENT
____________________________________________________________
Mr.R.M.Daga, Advocate for Appellant/Accused.
Mr.M.K.Pathan, A.P.P. for Respondent/State.
____________________________________________________________
CORAM : B.R.GAVAI
AND
M.G.GIRATKAR, JJ.
DATED : 8TH MARCH, 2018.
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ORAL JUDGMENT (Per B.R.Gavai, J) :
1. Both these appeals arise out of the Judgment and Order passed by the learned Sessions Judge, Chandrapur, dated 20th March, 2003 in Sessions Case No.62 of 2001.
2. Criminal Appeal No.333 of 2003 is filed by the State challenging that part of the Judgment and Order passed by the learned Sessions Judge vide which the original accused no.1 Rajesh s/o. Khushalrao Bhagat has been acquitted of the offence punishable under Section 302 of the Indian Penal Code and also acquitted the original accused no.2 of all the charges. Whereas Criminal Appeal No.205 of 2003 has been filed by the original accused no.1 Rajesh challenging that part of the order passed by the learned Sessions Judge vide which he is convicted for the offence punishable under Section 498-A of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 2 ½ years and to pay a fine of Rs.4,000/-; in default of payment of fine, to undergo rigorous imprisonment for two months.
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3. The case of prosecution, as could be gathered from the material placed on record is thus :
Deceased Jyotsna was wife of original accused no.1 Rajesh Khushalrao Bhagat. Their marriage was solemnized on 10.6.1998. Thereafter, the deceased and accused no.1 were residing at Bhadrawati in his quarter. The incident took place on 22nd December, 2000, at around 12.00 noon. According to accused no.1, when he came home, he saw the house, which was situated on the first floor, closed from inside. Thereafter, he, with the help of Shibu Thomas Kolamparmit (PW-3) got the door opened from inside;
wherein he saw his wife lying on the bed. He informed about the same to Mrs.Alphonsa wd/o. Thomas Kolampermit (PW-4), who tried to give first aid. She was brought to hospital in an ambulance. In the hospital, Medical Officer informed accused no.1 Rajesh that Jyotsna had died. One employee of the Ordinance factory gave report about death of deceased Jyotsna, on the basis of which initially A.D. No.58 of 2000 came to be registered under Section 174 of the Code of Criminal Procedure. Thereafter, parents of deceased were informed. After their arrival on the scene, crime for the offences punishable under Sections 306 and 498-A of the Indian Penal Code ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 ::: 5 apeal333.03.odt r/w. Sections 3 and 4 of the Dowry Prohibition Act came to be registered vide Crime No.190 of 2000. After the Post Mortem report was received, the medical opinion with regard to probable cause of death was found to be given as "asphyxia due to pressure over neck, probably strangulation." As such, the offence came to be converted into one under Section 302 r/w. Section 201 of the Indian Penal Code.
4. On 24.12.2000, the Investigating Officer arrested accused no.2 namely Khushalrao Khatuji Bhagat, the father of accused no.1. Accused no.1 Rajesh himself surrendered on 25.1.2001. At the conclusion of investigation, charge sheet came to be filed against the appellants. Vide Exh.16, charge for the offences punishable under Sections 498-A, 302 and 201 r/w. Section 34 of the Indian Penal Code was framed against both the accused. At the conclusion of trial, the learned trial Judge acquitted accused no.2 of all the charges. However, appellant no.1 was convicted for the offence punishable under Section 498-A of the Indian Penal Code and the order of sentence was passed, as aforesaid. Being aggrieved by the order of conviction, appellant/original accused no.1 has preferred Appeal No.205 of 2003; whereas being aggrieved by the ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 ::: 6 apeal333.03.odt order of acquittal, the State has preferred Criminal Appeal No.333 of 2003.
5. Mr.M.K.Pathan, learned A.P.P. for the State. He has submitted that, when death of the deceased occurred, it was only the deceased and the appellant/accused who were residing together. He, therefore, submits that, in this premise, the burden shifts upon the appellant under Section 114 of the Indian Evidence Act, 1872 to explain as to how death of deceased had occurred. It is submitted that the appellant having utterly failed to discharge the said burden, the order of acquittal as recorded by the learned Sessions Judge under Section 302 of the Indian Penal Code was not sustainable. The learned Counsel, therefore, submits that the appeal deserves to be allowed and the appellant also deserves to be convicted for the offence punishable under Section 302 of the Indian Penal Code.
6. Mr.R.M.Daga, learned Counsel for the appellants/accused, on the contrary, submits that, insofar as acquittal of appellants for the offence punishable under Section 302 of the Indian Penal Code is concerned, learned trial Judge has rightly passed the order of acquittal by taking into consideration the correct ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 ::: 7 apeal333.03.odt legal position. He submits that, insofar as accused no.2 is concerned, there is absolutely no material to connect him with either the charge under Section 302 or 498-A of the Indian Penal Code. He submits that original accused no.2 was residing separately and as such, the learned trial Judge has rightly acquitted him of all the charges. He submits that, insofar as appeal of appellant/accused Rajesh is concerned, the material placed on record would reveal that there is not even a whisper with regard to ill-treatment to deceased on the ground of non-fulfillment of demand of dowry and as such, conviction of appellant Rajesh under Section 498-A of the Indian Penal Code itself is not warranted. He, therefore, submits that the appeal deserves to be allowed and the order of conviction be set aside.
7. With the assistance of learned Mr.M.K.Pathan, learned A.P.P. and the learned Counsel Mr.R.M.Daga, we have scrutinized the entire evidence.
8. By now it is a settled principle of law that interference in an appeal against acquittal would be warranted if findings, as recorded by the learned trial Judge, are found to be perverse or ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 ::: 8 apeal333.03.odt impossible. In the light of this principle, we will have to examine the present case.
9. Undoubtedly, the present case is a case resting on the circumstantial evidence. The law with regard to recording of conviction on the basis of circumstantial evidence has been succinctly explained by Their Lordships of the Apex Court in the case of Sharad Birdichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116, wherein it is observed as under ;
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 :::
9 apeal333.03.odt (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. "
10. It could thus be clearly seen that Their Lordships have held that there is not only grammatical distinction between "may" and "must", but also a legal distinction. It has been held that unless prosecution proves that it is the accused and the accused alone who has committed the crime, conviction under Section 302 of the Indian Penal Code would not be tenable. It has been held that all the probabilities except the one which is consistent with the guilt of the accused have to be ruled out. In the light of the guidelines laid down by the Hon'ble Apex Court, we will have to examine the present case. ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 :::
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11. In the present case, it could be seen that it is the defence of the appellant that he had gone to attend duty at 7.30 a.m. He states that he came to the house at 12 hours in the noon and knocked the door of his house. The door was closed from inside. He did not hear the voice of deceased, but heard crying of his small daughter. He then came to the ground floor and narrated the facts to his neighbour Mrs. Nandedkar and Mrs. Alphanso. He also asked about ladder, but it was not found. He then asked Shibbu (PW-3) as to whether he can go to gallery and open the door. He agreed and climbed by taking support of window's door of the house of Mrs.Nandedkar. He opened the door. After the door was opened, accused found his daughter crying and deceased Jyotsna was lying on the bed. Her eyes were closed and blood was coming from nose. He tried to wake up her, but in vain. He, therefore, immediately called for help to Mrs. Alfonsa and Mrs.Nandedkar. They massaged the foot of deceased, but there was no response from her. Mrs. Nandedkar asked him to call Ambulance. He went to hospital of defence factory and brought the Ambulance. He lifted deceased Jyotsna and put her in ambulance. In the hospital, Medical Officer informed accused no.1 Rajesh that Jyotsna had died. ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 :::
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12. Accused no.1 Rajesh has further stated in his statement u/s. 313 of the Code of Criminal Procedure that relatives of deceased Jyotsna were informed. After their arrival, they made allegations with regard to murder. He further states that relatives of Jyotsna removed the dead body of Jyotsna from Bhadravati to Chandrapur in a private vehicle.
13. It could clearly be seen that there is a specific defence of appellant/accused Rajesh that when he came home from duty, the door was locked from inside and he was required to get the door opened with the help of Shibbu (PW-3). After the door was opened and after he entered inside the house, he saw that his daughter was crying and the deceased was lying on bed. By now it is a settled principle of law that prior to the burden being shifted to the accused under Section 114 of the Indian Evidence Act, it is necessary for the prosecution to discharge it's burden. In the present case, though onus was on the prosecution to prove that when death of deceased had occurred, it is the present appellant and the deceased who were together in the house. Only thereafter the burden could have been shifted to accused. However, in the present case, it will be relevant to refer to evidence of prosecution witnesses.
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14. Shibbu Thomas Kolamparmit (PW-3) is the son of an employee residing in the neighbouring Apartment. Whereas Shibbu and his family were residing in quarter no.33-B, the appellant was residing in quarter No.33-C. He stated that, at the time of incident, he was studying in 9th Std. The incident had occurred at around 11.00 a.m. to 12.00 noon. He was preparing to go to School. At that time, he heard noise of knocking of the door of quarter of accused Rajesh. He went outside the house. At that time, Rajesh came there and asked him whether ladder is available. He informed the accused that ladder is not available. Shibbu (PW-3) further states that, by the side of quarter of accused, there was quarter of Nandedkar. He further states that, from the window of Nandedkar, he climbed and went in the balcony of accused Rajesh. His small daughter was crying near the stool. Daughter was in the balcony. He opened the door of the house of accused Rajesh which was closed from inside. Then he went to school. In his cross- examination also, he has categorically admitted that, at around 12.00 noon, he was preparing for going to school. Accused no.1 Rajesh came on motor cycle. He has reiterated that quarter of accused Rajesh was closed from inside. He has further admitted that, to open the door, Rajesh called his wife and knocked the door by his hand. He has further admitted that when he opened the door of the quarter of ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 ::: 13 apeal333.03.odt accused Rajesh from inner side, he was standing near the door. He has further admitted that, he did not hear noise from the house of accused Rajesh in the morning hours. Evidence of Shibbu (PW-3) is corroborated by the evidence of Mrs.Alphonsa Kolampermit (PW-4). She also states that, on 22nd December, 2000, at about 12.00 noon, accused Rajesh came there and asked her son whether ladder is available. On being told that ladder is not available, he asked her son whether he can climb up. Her son climbed up and by entering into first room, he opened the door from inner side. Then her son went away in the school. She further states that she heard the noise of Rajesh and then she went in the house of Rajesh. She saw the wife of Rajesh lying on the bed. Mrs.Alphonsa (PW-4) and Mrs.Nandedkar tried to massage the legs of Jyotsna. Eyes of Jyotsna were closed. They asked accused Rajesh to bring Ambulance. Rajesh brought Ambulance. Mrs.Alphonsa (PW-4) and Rajesh carried Jyotsna in the hospital of factory. The doctor told that Jyotsna was dead. In her cross-examination, Mrs.Alphonsa (PW-4) has admitted that relations of Rajesh with his wife were cordial. She states that prior to 15 days of incident, she had gone to the house of Rajesh for making inquiry about electricity bills. At that time, all of them had a chat. She has further admitted that, after her son came on opening the door immediately, she heard the ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 ::: 14 apeal333.03.odt noise of accused Rajesh saying "jyotsna Behosh padi hai, koi hai kya".
After hearing the noise of Rajesh, immediately she went up in the house of Rajesh.
15. It could thus be seen from the evidence of prosecution witnesses itself that it has come on record that when the appellant Rajesh had come home, the door was closed from inside. He was required to get the door opened with the assistance of Shibbu (PW-3). On finding his wife in unconscious state of mind, he immediately called for help and Mrs.Alphonsa (PW-4) came there and tried to help the accused. Thereafter, with the help of Mrs.Alphonsa (PW-4), he had brought the deceased in an ambulance to the hospital.
16. It could thus be seen from the material placed on record by the prosecution itself that the defence which has been set up by the appellant was not only probable but was duly fortified by the prosecution witnesses.
17. As held by the Hon'ble Apex Court, however strong suspicion be, it cannot take the place of proof beyond reasonable doubt. We are of the considered view that no error could be noticed in ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 ::: 15 apeal333.03.odt the approach made by the learned trial Judge in acquitting the appellant of the offence punishable under Section 302 of the Indian Penal Code. Insofar as accused no.2 is concerned, there is no material on record even to show that accused no.2 was residing with the appellant Rajesh and the deceased. As such, no error could be noticed in the finding of learned trial Judge in acquitting the accused no.2 for all the charges. The appeal of the State, therefore, deserves to be dismissed.
18. Insofar as conviction of the appellant/original accused no.1 Rajesh for the offence punishable under Section 498-A of the Indian Penal Code is concerned, prosecution relies on the evidence of Soma Gopal Kamble (PW-1), Dadarao Kisan Thomare (PW-8), the father of deceased and Mahadeo Sitaram Shelkar (PW-9) who is relative of Dadarao (PW-8) for bringing home the guilt of accused for the offence punishable under Section 498-A of the Indian Penal Code. It is necessary for the prosecution to establish that the victim was ill-treated on account of non-fulfillment of demand of dowry. In the present case even if evidence of Dadarao (PW-8) and Mahadeo (PW-9) is taken at face value, leaving aside there being any material to show that the deceased was ill-treated on account of non-fulfillment of demand of ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 ::: 16 apeal333.03.odt dowry, there is not even a whisper with regard to demand of dowry. In that view of the matter, we find that conviction u/s. 498-A of the Indian Penal Code is totally unsustainable in law. Resultantly, we pass the following order.
Criminal Appeal No.333 of 2003 is dismissed.
Criminal Appeal No.205 of 2003 is allowed.
The impugned Judgment and Order dated 20/3/2003 passed by learned 3rd Ad hoc Additional Sessions Judge, Chandrapur in Sessions Case No.62 of 2001 is quashed and set aside.
Appellant Rajesh s/o. Khushalrao Bhagat is acquitted of the offences charged with.
His bail bonds shall stand discharged.
JUDGE JUDGE [jaiswal] ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 ::: 17 apeal333.03.odt ::: Uploaded on - 15/03/2018 ::: Downloaded on - 21/05/2018 09:12:22 :::