2008 ALL MR (Cri) 1602
IN HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
N.V. DABHOLKAR AND R.M. BORDE, JJ.
Anandrao S/O. Khandu Zalke Vs. State Of Maharashtra
Criminal Appeal No. 291 of 2006
10th April, 2008
Petitioner Counsel: Mrs. MANJUSHA JAGTAP
Respondent Counsel: Mrs. RANJANA REDDY
(A) Penal Code (1860), S.498A - Cruelty to wife - Demand of money - Merely because accused is financially better placed than the parents of victim wife, will not be a circumstance sufficient to discard the version of the parents that a month earlier to the alleged incident, accused had started demanding cash of Rs.1,000/-. (Para 7)
(B) Evidence Act (1872), S.114 - Presumption under - Presumptions are illustrative and not exhaustive - Courts always can take into consideration natural course of human conduct and the presumptions which can be safely drawn from it. (Para 7)
N. V. DABHOLKAR, J. :- This appeal under section 374(2) of the Code of Criminal Procedure challenges judgment and conviction pronounced by the Adhoc Additional Sessions Judge, Nanded, at the conclusion of Sessions Case No.170/03. Present appellant was tried for offences punishable under sections 302 and 498-A of Indian Penal Code. He was held guilty on both counts and is sentenced to suffer life imprisonment on the first count and rigorous imprisonment for two years on the second. He is also sentenced to pay fine of Rs.1,000/- and Rs.500/- respectively on two counts and in default, simple imprisonment for six months and one month. Feeling aggrieved by said conviction and sentence, the appellant/accused is before us.
Victim Sushila @ Shantkala was wife of accused Anandrao. They were married 15 years ago and God had gifted them with two sons and a daughter. Daughter Changuna and younger son were studying in Ashram school and son Balaji was studying in local school at the material time. The incident in question took place on 8-8-2003.
It is the contention of parents (PW 3 Ganpat and PW 7 Dhurpatabai) of victim Sushila that accused was harassing their daughter by demanding cash and they have narrated couple of incidents within a month preceding the alleged incident. Their version on this count is also supported by Maroti "co-brother" (......) of PW 5 Ganpat.
It is stated that on the day of incident at about 12 noon, Balaji returned home from school. He found that door of the house was closed from inside. He heard shouts of mother from inside and inspite of knocking nobody opened the door. His aunt passing by the road was invited by him in his attempts to compel father to open the door. Impliedly, father (accused) is stated to be inside the house. Attempts of aunt did not succeed when PW 4 Dilip Zadke arrived on the scene. The aunt called Dilip who also tried to open the door by giving kicks and blows but the door was not opened. On the contrary, accused from inside asked Dilip to go away. After sometime, father opened the door and went away. Balaji, aunt and Dilip entered into the house to find that victim Sushila was lying on the cot. Balaji could gather that she was dead as she did not speak inspite of attempts of Balaji to talk to her.
It appears that brother of the accused gave intimation of death of Sushila to her father Ganpat on the same day i.e. 8-8-2003 late in the evening. Ganpat thereafter alongwith wife Dhurpadabai, Sister Gayabai and niece Chandrakalabai went to Dagadwadi (place of accused). Exact time or date of visit is not narrated by the father. But from overall circumstances on record, it can be gathered that he must have reached there with the relatives on 9th August. Seeing the dead body, which by the time father reached was kept near a wall of the house in a sitting position, father noticed that there were weal marks and discoloration of skin around throat and on the legs. Upon enquiry with Balaji, Balaji disclosed to grand father that mother was killed by his father. On 10th August, 2003, statement of Ganpat is recorded by the police which is treated as FIR.
It appears from exh.31 communication dt.9-8-2003 addressed by PSI Himayat Nagar to Medical officer, Government Dispensary, Himayat Nagar that death of Sushila was reported to the police station by police patil, Chichonde namely Chhatrapati Bhise. Upon such report, PSI Himayat Nagar, visited Dagadwadi and the house of the accused. He has drawn panchanama of the spot as also inquest of the dead body on 9-8-2003 between 13.30 hours to 14.15 hours and thereafter dispatched the dead body for post-mortem. PSI, Himayat Nagar investigated the matter initially as death for unknown reasons and subsequently after registration of crime as a case of murder. The accused was arrested on 13-8-2003.
Charge-sheet filed before the Judicial Magistrate, First Class, Himayat Nagar was committed to the court of sessions and the trial ended in conviction as descried hereinabove.
3. As can be gathered from the cross-examination of witnesses and also from replies to the question during the course of statement under section 313 of the Code of Criminal Procedure, 1973, the defence of the accused is of total denial. It may not be out of place to say that he has not opened his mouth even when he ought to have opened. Although it is suggested to the parents that victim died of diphtheria during the course of cross-examination, even that defence is not supported by the accused in his statement under section 313 of th Code of Criminal Procedure, 1973. All the questions in the statement under Section 313 are replied by saying either " I do not know" or "it is false". Even during the cross-examination of witness no reason is suggested as to why the relatives of victim should falsely frame the accused. The fact that couple had cohabited happily for nearly 15 years and also blessed with three children, is a double edged weapon. If accused can stand upon that in order to deny the charge of ill-treatment, that itself would make the accused answerable as to why the relatives of wife should frame him in a false prosecution.
PW 1 Balaji and PW 2 Changuna are children of victim and accused. Comparatively, Balaji offers direct evidence. According to him, he has heard the noise of violence inside the house, whereafter father fled away and mother was found dead inside the house, Changuna corroborates him. According to her, while she was at Ashram school, her maternal uncle Baban informed her about death of the mother and she returned home with the uncle. Upon enquiry to brother Balaji she was informed of her father having killed her mother. Infact, evidence of Dilip (PW 4) was expected to be of the same quality as that of Balaji. Unfortunately, Dilip turned hostile to the prosecution and the reasons are obvious. He has admitted in his cross-examination by APP that accused is his uncle.
PW 3 Ganpat (father), PW 7 Dhurpadabai and Maroti (maternal uncle) of the deceased provide evidence about ill-treatment offered by accused to the deceased. According to him, about a month prior to the alleged incident, Sushila had returned to the place of Maroti, who is husband of her maternal aunt and complained of ill-treatment of the accused for demand of cash Rs.1,000/-. After staying with Maroti for few days, Maroti had reached her to her parents. A meeting of respectable persons for the village was invited. Accused was summoned there and upon oral undertaking by the accused that Sushila would be treated fairly and properly, the couple was dispatched for cohabitation. It is contention of the parents that on the Wednesday before the day of incident (..................), accused had approached parents of the deceased demanding Rs.1000/- and as they could not fulfill the demand, he had returned in an annoyed state of mind. (On referring to calender, 8-8-2003 is a Friday and therefore earlier Wednesday is 6-8-2003).
Dr. Sheshrao Chavan (PW 5) had carried out post-mortem and according to his report, deceased had suffered a homicidal death by throttling. He has repelled the defence suggested during the course of cross-examination of parents that deceased died natural death because of throat disease.
In the light of availability of expert evidence of Dr. Sheshrao, evidence of PW 6 Padminbai (inquest panch) is not of much significance. PW 10 Vitthalrao is a spot panch. PW 9 is another panch witness allegedly of discovery at the instance of accused under section 27 of Indian Evidence Act. Eventually, spot of incident is said to have been discovered at the instance of accused. It must be said that this discovery is no discovery at all because spot of incident was known to everybody much earlier and therefore evidence of Yadavrao and part of investigating regarding memorandum, statement of accused and panchanama under section 27 of the Indian Evidence Act is useless part of evidence. PW 11 PSI Chavan is the Investigating Officer.
5. On reference to the impugned judgment, it is evident that inspite of doubts raised against reliability of evidence of Balaji and Changuna, the learned sessions Judge has found them trustworthy. He has also found evidence of Ganpant, Dhurpadabai and Maroti as convincing on the aspect of accused subjecting deceased to ill-treatment for demand of Rs.1,000/- since about a month prior to alleged incident. Naturally, the judgment has resulted in finding of guilty on both the counts and conviction of accused.
6. Heard respective counsel. Mrs. Jagtap, learned counsel for the appellant has attacked evidence of Balaji and Changuna as unreliable so also that of parents of the victim. According to her Balaji and Changuna are child witnesses and their evidence must be accepted with utmost caution. She has relied upon the admission by both these witnesses to the effect that police taught them how to depose in the court. No doubt, in the evidence of both the witnesses it is admitted by them that police taught them how to depose, it must be taken a note that they have not admitted that police tutored them "what" to depose. So far as Balaji is concerned, it is not even suggested that he is deposing as tutored or that he is deposing false. It must be taken a note that after conclusion of evidence of Balaji on 19-6-2004, he was recalled on 19-11-2004 for further cross-examination (after a gap of five months). During the second round of cross-examination, Balaji has denied his mother having died of throat disease. He has denied that he does not know anything about the incident, he has denied the suggestion that he was not present on the spot at the material time. Even in this second round, the defence did not venture to suggest to the witness that he was tutored either by police or by grand parents with whom the children were staying after death of mother.
Changuna has not claimed to be present at the place when the incident occurred. She has corroborated the brother by saying that when she reached house and enquired with brother Balaji, he informed that father had killed mother. It was specifically suggested to Changuna that she is deposing false. The suggestion is emphatically denied so also suggestion that she is deposing as tutored by the police. The fact that Changuna is not exaggerating is inherent in her deposition. We quote :
I had enquired with my brother Balaji about the incident. He disclosed me that my father has assaulted my mother inside the house by closing door. It do not know why my father has killed my mother.
If the child was tutored either by police or the grand parents, the child would have come out with some version attracting ingredients of section 498-A of Indian Penal Code. Infact, Changuna is elder sister of Balaji. We feel that inspite of couple of weaknesses in the evidence, evidence of Balaji, and Changuna cannot be discarded as evidence of tutored child witnesses and the same can be accepted without possible risk of relying on false evidence. Their evidence gets a ring of truth by conduct of the accused, which aspect we shall deal little latter.
7. After going through the evidence of Ganpat, Dhurpadabai and Maroti, their consistent versions regarding incident a month prior to alleged incident were not shaken inspite of elaborate cross-examination of all the three. Learned counsel Mrs. Jagtap vehemently urged that the accused was financially in a better position. Admittedly, he owns 20 acres land although non-irrigated. Dhurpatabai has admitted that accused was financially sound and that is why was chosen as a groom for the daughter. It has come in the cross-examination of mother that son of Ganpat and Dhurpatabai (brother of victim) is employed and earning salary of Rs.20,000/- per month. Human psychology is more mysterious than the greatest mysteries in the world. Therefore, merely because accused is financially better placed than parents of victim, will not be a circumstance sufficient to discard the version of the parents that a month earlier to the alleged incident, accused had started demanding cash Rs.1,000/-.
Although unfortunately during the course of his chief-examination, Ganpat stated that he did not talk anything to Balaji, this will have to be ignored as loss of memory. This is because in his FIR exh.23, he has narrated that after seeing injuries on the person of Sushila, he had enquired Balaji and Balaji had disclosed the death of his mother to be a result of beating by father. In this context, conduct of accused must be taken into consideration. Two children i.e. Changuna and the younger son being the Ashram school students, the family remained only of three members i.e. victim Sushila, accused Anandrao and son Balaji. The fact that Sushila died inside the house cannot be disputed nor is disputed by specific suggestion to that effect. It stands confirmed by exh.31 that death was reported to the police station by police patil. Hypothetically let us consider two possibilities and we are justified on relying upon such possibilities by virtue of section 114 of Indian Evidence Act. Presumptions illustrated therein are illustrative and not exhaustive. The courts always can taken into consideration natural course of human conduct and the presumptions those can be safely drawn from it. If accused was present in the house when Sushila died, it was a duty of the accused to report the matter to the relatives if not to the police and atleast to local village officers. We have already indicated that accused himself did not support the defence of his wife having died of throat disease which was suggested by the learned counsel during cross-examination. There is no medical evidence on record to believe the death to be natural. Post-mortem report confirms that death is by throttling and therefore homicide. Post-mortem report has also ruled out possibility o death being natural due to disease diptheria. In these circumstances the accused was bound to report death to police, because he should have been the person aggrieved by killing of his wife. As a second possibility, let us assume that accused was not present in the house when the wife was killed. Ordinarily he would return home in the evening after daily routine and duty. In that case, there ought to have been report from him to the police patil or police authorities that his wife is killed and the matter needs to be investigated. The accused has neither claimed that wife died while he was present nor he has claimed that wife was killed in his absence and what steps he took for the purpose of apprehending the culprits. Unfortunately, for the appellant, his silence speaks volume more than the evidence can speak many a time. We feel that this passive reaction of the appellant accused who was arrested on 13th August, 2003 gives confidence to the evidence of Balaji and his sister Changuna.
8. Learned counsel Mrs. Jagtap has placed reliance upon observations in the judgment of Orsu Venkat Rao Vs. State of Andhra Pradesh reported in 2005(1) Mh.L.J. 371 and more particularly contents in para 5. On reference in para 5, it is evident that the child witnesses were disbelieved for the reason that they had not disclosed the details known to them at the first instance but they disclosed it for the first time upon returning to the place of grand parents. In the matter at hand, according to prosecution story, Balaji disclosed the details known to him on every possible occasion. From the list of prosecution evidence that is available in the miscellaneous file, it is evident that FIR of Ganpat was recorded on 10-8-2003 so also statement of Balaji. Therefore, it cannot be said that evidence of Balaji is doubtful evidence for delayed disclosure of details known to him.
9. Learned APP Mrs. Reddy has placed reliance on the observations of Supreme Court in the matter of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in [2006 ALL MR (Cri) 3510 (S.C.)] : 2007 Cri.L.J. 20 wherein it is held that silence of inmates of the house about cause of death would become additional link in the chain of circumstance, if the case is based on circumstantial evidence. This is an observation about the case of dowry death where apart from victim the only witnesses are either accused or relatives of accused.
10. For the reason discussed hereinabove, we find that the learned sessions Judge was justified in relying upon the evidence of Balaji and Changuna as one set and Ganpat, Dhurpatabai and Maroti as another set, for finding of guilty on the charges under section 302 and 498-A of the Indian Penal Code. Conviction and sentence therefore call for no interference.
Certified copy of the judgment be furnished to the accused through jail authorities free of cost.