Criminal Appeal No. 142 of 2022 · Bombaybench High Court
Case Details
2024:BHC-AUG:23109-DB Cri Appeal No.142 of 2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.142 OF 2022 1. Mahalappa Babu Bandichode,Age:39 years, Occ. Agri.,2.Babu Mahalappa Bandichode,Age:69 years, Occ.Agri.,3.Dagdu Babu Bandichode,Age:41 years, Occ. Agri.,All r/o. Belamb, Tq. Omerga,Dist. Osmanabad..AppellantsVs.The State of Maharashtra,Through Investigating Officer,Murum Police Station,Tq. Omerga, Dist. Osmanabad..Respondents----Mr.Shailendra S. Gangakhedkar, Advocate for appellantsMr.S.D.Ghayal, Addl. Public Prosecutor for respondentMr.Sandeep B. Rajebhosale, Advocate assisting the P.P. (absent)---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. RESERVED ON:AUGUST 27, 2024 PRONOUNCED ON:SEPTEMBER 25, 2024 JUDGMENT (Per R.G.Avachat, J.) :-A father and his two sons have preferred this appealagainst the judgment and order of conviction dated 04.02.2022,passed against them by learned Addl. Sessions Judge, Omerga in 2Cri Appeal No.142 of 2022Sessions Case No.24 of 2013. Vide the impugned judgment andorder, the appellants have been convicted for the offence punishableunder Section 302 read with Section 34 of Indian Penal Code andtherefore, sentenced to suffer imprisonment for life and to pay fineof Rs.500/- each, with default stipulation.2.Appellant no.2 (A2) is father of appellant nos.1 and 3 (A1and A3). The wives of appellant nos.2 and 3 were also prosecutedalong with them for the same offence, besides the offence underSection 498-A read with Section 34 of Indian Penal Code. All of themhave been acquitted of the charge of offence under Section 498-Aread with Section 34 of Indian Penal Code. Those two additionalaccused have also been acquitted of the charge of murder. Neitherthe State nor any of the next of kin (victim) of the deceasedpreferred appeal against acquittal.3.It was a case of murder of wife of appellant no.1 –Mahalappa by giving her electric shocks, on the intervening night of27th and 28th March, 2012, at her matrimonial home, at villageBelamb, Tq.Omerga, Dist. Osmanabad.
Facts
3Cri Appeal No.142 of 20224. The case of prosecution, before the trial court, was asunder:-Sujata (deceased) married Mahalappa (A1) in 2004. Onmarriage, she started residing at her matrimonial home. All was notwell between her on one hand and the appellants and other femalein-laws, on the other. She had asked for partition of her husband’sshare in the ancestral agricultural land. She was even assaulted byher father-in-law – Babu (A2) with service-wire a few days prior to theincident. She had, therefore, started residing separately in one ofthe rooms of the house comprising five rooms. On the interveningnight of 27th and 28th March, 2012, the appellants and the acquittedaccused committed her murder with giving her electric shocks andshe succumbed thereto.5.On the other hand, it was the case of A1 that he alongwith his brother A3 were in their field overnight. On their returnhome early in the morning, they realised Sujata to have sufferedelectric shock of table-fan wire. He made an oral report (Exh.65) tothe police about unnatural death. Based on his say, an unnaturaldeath case was registered. 4Cri Appeal No.142 of 20226.PW 9 – Anandrao, then A.P.I. attached to Murum PoliceStation, rushed to the house of the appellants. He drew spotpanchnama (Exh.25) and inquest (Exh.66) as well. He sent themortal remains of Sujata for autopsy. PW 7 – Dr. Amrapali conductedthe same. The post mortem examination report (Exh.52) suggestsSujata died of `cardio-respiratory arrest due to electric shock’. Whenthe parents and brother of deceased Sujata visited her matrimonialhome, they noticed burn marks on her body. Blood was oozing fromone of her eyes and mouth. They realised it to be not the case ofunnatural death. Suresh (since deceased), father of Sujata, lodgedthe FIR (Exh.64), alleging that the appellants and the wives ofappellant nos.2 and 3 harassed and illtreated and ultimately,committed murder of his daughter Sujata.7.A crime, vide C.R. No.44 of 2012 was registered atMurum Police Station, for the offences punishable under Sections302 and 498-A of Indian Penal Code. The appellants and mother-in-law and sisters-in-law of Sujata were arrested. A3 - Dagdu madedisclosure statement, pursuant to which two pillows and one electricwire came to be seized. The clothes on the person of the deceasedwere seized. During spot panchnama, some articles were takencharge of. The blood stains on the floor were collected with cotton 5Cri Appeal No.142 of 2022swab. The blood samples of the appellants and deceased Sujatawere obtained for ascertaining the blood group. C.A. reports in thatregard were received. The statements of the persons acquaintedwith the facts and circumstances of the case were recorded. Oncompletion of investigation, charge sheet was filed.The trial courtframed Charge (Exh.9). The appellants pleaded not guilty. Theirdefence was Sujata to have died of electric shock sufferedaccidentally. On appreciation of the evidence in the case, the trialcourt convicted the appellants and consequently sentenced, asstated above.8.Heard learned counsel for the parties. Learned counselfor the appellants made oral submissions and also placed on recordwritten notes of arguments along with a bunch of authorities/citations. According to him, the case was based on circumstantialevidence. He would further submit that the circumstances relied onhave not been proved upto the hilt. He would further submit that theprosecution has failed to prove Sujata to have met with homicidaldeath. He would further submit that in view of acquittal of theappellants of the offence under Section 498-A of Indian Penal Code,the motive for commission of the alleged offence came to bedisproved. According to him, there is not a single witness to indicate
Legal Reasoning
22Cri Appeal No.142 of 2022between 01.00 am. and 3.00 am on 28.03.2012. She had furtheropined that the exact sight of electric shock could not bedifferentiated/located. The very document indicates that multipleinjuries observed on the body were suggestive of electric burns; butthe exact location of entry of shock could not be differentiated. TheInvestigating Officer was right in testifying that he did not find itnecessary to have opinion of the Electrical Inspector or any otherexpert from the electricity department, to find whether such injurieswere caused by single shock. According to him, the post mortemexamination report was quite sufficient to indicate the deceased tohave been done to death. In our view too, ten independent burninjuries on the person of the deceased indicate each to have beencaused with separate electric shock. Had it been a case of theaccidental shock, the voltage of electric supply plays an importantrole. In case of mild electric shock, the deceased would have fallenor in case of incessant electric shock, her entire body would haveturned blacken with the electric current to have passed through theentire body. Although the Medical Officer did not state in so manywords it to be a case of homicidal death, ten burn injuries, the bloodfound on the floor of the room so also oozing from the eye andmouth go a long way to suggest Sujata to have met with homicidaldeath. The question is, whether the appellants are authors thereof. 23Cri Appeal No.142 of 202228.Admittedly, it is a house comprising of not less than fiverooms. There were three separate rooms occupied by each couple,besides hall and kitchen room. There is evidence to indicate thatdue to assault by A2 (father-in-law) on 08.02.2012, Sujata hadstarted residing separately in one of the rooms. Necessarily, it wasoccupied by her along with her husband and their child.29.PW 8 – Anuja was neighbour of the appellants. It is in herevidence that there used to be frequent quarrels between Sujata onone hand and her in-laws, on the other. According to her, theincident took place in the month of March, 2012. By 10.00 p.m.,there was water supply to public water tap. She was filling water.She heard quarrel in the house of the appellants between Sujata andaccused (appellants). She did not visit their house as the quarrelwas the usual feature. It is further in her evidence that by 12.15 inthe midnight, she heard shouts emanating from the house of theappellants. The shouts stopped by 01.10 a.m. At about 05.00 in themorning, she heard noise from outside of her house. She came outand saw persons to have gathered in front of the house of theappellants. 24Cri Appeal No.142 of 202230.During the cross-examination of PW 8 - Anuja, shetestified that police did not record her statement. Her husband’sstatement was recorded. The fact is that the incident dates back toMarch, 2012. Her evidence was recorded seven years after theincident. The Investigating Officer testified to have recordedstatements of the persons acquainted with the facts andcircumstances of the case. After finding on record PW 8’s policestatement, learned counsel for the appellants gave up his objectionthat she was examined as a witness without there being herstatement under Section 161 of the Code of Criminal Procedure.31.The evidence referred to herein above lead us toconclude Sujata to have met with homicidal death at her matrimonialhome and particularly, in the room exclusively occupied by her, A1and their child. We have perused the authorities relied on by learnedcounsel for the appellants and particularly, the paragraphshighlighted by learned counsel. It needs no mention that a criminalcase is decided on the basis of the facts and circumstances thereof.We are conscious of the legal position that the burden of proof in thecriminal trial is static and it is for the prosecution to prove the chargebeyond reasonable doubt. Relying on the authorities, learned counselmeant to say that there was no single witness examined by the 25Cri Appeal No.142 of 2022prosecution to indicate that the appellants were at their residence atthe relevant time. According to him, the Medical Officer has giventime of death as 10-12 hours before commencement of the autopsy.Said period takes back to 03.00 am., while, according to PW 8 –Anuja, shouts in the house of the appellants stopped little past 01.00a.m. Her evidence, thus, becomes unreliable.32.The judgment of the Apex Court in the case of JaharlalDas (supra) relied on by learned counsel for the appellants, speaksabout a case based on circumstantial evidence. It has further beenobserved therein that it is well settled that the circumstantialevidence, in order to sustain the conviction, must satisfy threeconditions: (i) the circumstances from which an inference of guilt issought to be drawn, must be cogently and firmly established; ii)those circumstances should be of a definite tendency unerringlypointing towards the guilt of the accused; and iii) the circumstances,taken cumulatively, should form a chain so complete that there is noescape from the conclusion that within all human probability thecrime was committed by the accused and none else, and it shouldalso be incapable of explanation on any other hypothesis than that ofthe guilt of the accused. It has further been observed in paragraph 9that :- 26Cri Appeal No.142 of 2022“9.It may not be necessary to refer to other decisions of thisCourt except to bear in mind a caution that in cases dependinglargely upon circumstantial evidence there is always a dangerthat the conjecture or suspicion may take the place of legalproof……...33.In the case of P. Mani (supra), it has been observed thatin criminal case, it is for the prosecution to prove involvement of theaccused beyond all reasonable doubt. It was not a case where both,husband and wife, were last seen together inside a room. The factsof the said case recorded in paragraphs 2 and 3 thereof, wouldindicate some distinguishable facts with the facts of the case onhand.In the case of Sohel Mehaboob Shaikh (supra), again,the principle as regards burden to prove in the case based oncircumstantial evidence is same. Paragraph 6 of the said judgmentwould suggest the Apex Court, after having gone through theevidence on record, found that the High Court had arrived at someconclusions, which were based on surmises and conjectures, withoutthere being any evidence to support the conclusions.In the case of Suresh Vithal Parkar (supra), theprosecution could not establish the exact time of death and thepresence of the appellant therein, at his residence, by the time theoffence might have been committed. 27Cri Appeal No.142 of 2022In the case of Sunil Latari Khuje (supra), it wasobserved that the prosecution had failed to prove presence of theappellant at the house on some time proximate to occurrence of thecrime, which was important chain of circumstances leading to theguilt of the accused.Rest of the authorities relied on by learned counsel forthe appellants, more or less, are about the submissions made by himin defence of the appellants. 34.At the cost of repetition, it is to be stated that PW 8 –Anuja gave her evidence seven years after the incident. Samecannot be taken with the precision or tick of the clock. She beingneighbour of the appellants, was categoric to state to have heardquarrels between Sujata on one hand and the accused persons, onthe other, by 01.00 am. True, she had not seen who were in thehouse of the appellants. PW 8 – Anuja testified that there werequarrels between the appellants on one hand and deceased Sujata,on the other, by 01.00 a.m. Admittedly, it was their residentialhouse. It would be a matter of common knowledge that a personafter doing all his work during the day time, returns to his house inthe evening. In the case of Trimukh (supra), it has been observedas under:- 28Cri Appeal No.142 of 2022“14. If an offence takes place inside the privacy of a house andin such circumstances where the assailants have all theopportunity to plan and commit the offence at the time and incircumstances of their choice, it will be extremely difficult forthe prosecution to lead evidence to establish the guilt of theaccused if the strict principle of circumstantial evidence, asnoticed above, is insisted upon by the courts. A judge does notpreside over a criminal trial merely to see that no innocent manis punished. A judge also presides to see that a guilty man doesnot escape. Both are public duties. (See Stirland v. Director ofPublic Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)] —quoted with approval by Arijit Pasayat, J. in State of Punjab v.Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135)]. Thelaw does not enjoin a duty on the prosecution to lead evidenceof such character which is almost impossible to be led or at anyrate extremely difficult to be led. The duty on the prosecution isto lead such evidence which it is capable of leading, havingregard to the facts and circumstances of the case. Here it isnecessary to keep in mind Section 106 of the Evidence Act whichsays that when any fact is especially within the knowledge of anyperson, the burden of proving that fact is upon him. Illustration(b) appended to this section throws some light on the contentand scope of this provision and it reads:“(b) A is charged with travelling on a railwaywithout ticket. The burden of proving that he hada ticket is on him.”15.Where an offence like murder is committed in secrecyinside a house, the initial burden to establish the case wouldundoubtedly be upon the prosecution, but the nature andamount of evidence to be led by it to establish the charge cannotbe of the same degree as is required in other cases ofcircumstantial evidence. The burden would be of acomparatively lighter character. In view of Section 106 of theEvidence Act there will be a corresponding burden on theinmates of the house to give a cogent explanation as to how thecrime was committed. The inmates of the house cannot get awayby simply keeping quiet and offering no explanation on thesupposed premise that the burden to establish its case liesentirely upon the prosecution and there is no duty at all on anaccused to offer any explanation. 29Cri Appeal No.142 of 2022xxx xxx xxx22.Where an accused is alleged to have committed themurder of his wife and the prosecution succeeds in leadingevidence to show that shortly before the commission of crimethey were seen together or the offence takes place in thedwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer anyexplanation how the wife received injuries or offers anexplanation which is found to be false, it is a strongcircumstance which indicates that he is responsible forcommission of the crime. …”(Emphasis supplied)35.Close reading of the aforesaid observations wouldindicate that the last limb of paragraph 22 starts with “or the offencetakes place in the dwelling house where the husband also normallyresided, it has been consistently held that if the accused does notoffer any explanation how the wife received injuries or offers anexplanation which is found to be false, it is a strong circumstancewhich indicates that he is responsible for commission of the crime”.36.In the case in hand, A1 relies on his statement (Exh.65),which was a statement on the basis of which a station-diary entryno.88 of 2012 was made, registering it to be a case of unnaturaldeath. According to A1’s statement, he and A3 were in their field.They took dinner and slept overnight there. Both of them came 30Cri Appeal No.142 of 2022home by little past 05.00 in the morning. His brother, A3 receivedphone call from their neighbour - Viru Bandichode, informing Sujatato have suffered electric shock and asked them to return home early.Therefore, they returned to home by 06.00 in the morning to findSujata was lying dead in the room. Then, he informed his parentsand sister-in-law. In our view, this statement is nothing but creationof defence. A1 did not examine himself nor any other witness indefence. True, it is not necessary. Nor we can make observation thisway. We meant to say A1 need to have offered explanation the wayhe could have. If he had already returned home by 06.00 in themorning, why it took three hours for him to lodge the report asregards the alleged unnatural death. Had he really been to his fieldand returned home on hearing his wife to have suffered electricshock, the natural conduct on his part would have been, first to rushSujata to a nearby private hospital or call local Doctor to examineher. Nothing of that sort had been done. On the contrary, theevidence of PW 4 – Mangalbai indicates that she received phone callof A2 at 05.00 in the morning, informing Sujata to have sufferedshock. This falsifies the case of A1 that he informed his parents onreturn to the home at 06.00 in the morning. It is just difficult toassume that they did not notice the shock injuries on the person ofthe deceased Sujata. A3 – Dagdu does not claim in his examination 31Cri Appeal No.142 of 2022under Section 313 of Cr.P.C., to have been in the field on the fatefulnight with A1 – Mahalappa.37.In our considered view, A1 has come with a falsedefence, which is inconsistent with the evidence on record. As perthe evidence of PW 8 – Anuja, A1 was at his residence by late in thenight. Since the incident took place in the room exclusively occupiedby him along with the deceased, we find the trial court to haverightly convicted him for the reason he failed to offer explanation asto under which circumstances, his wife (Sujata) met with homicidaldeath. So far as regards other appellants, namely, Babu (A2) andDagdu (A3) are concerned, though the evidence indicates that theywere more brutal than A1, they need to be given benefit of doubtassuming them to have been in their respective exclusively occupiedrooms. 38.For all the above reasons, the appeal partly succeeds. Inthe result, the following order:-(i)The appeal is partly allowed.(ii)The impugned order dated 04.02.2022, passed bylearned Addl. Sessions Judge, Omerga, Dist. Osmanabad, in Sessions 32Cri Appeal No.142 of 2022Case No.24 of 2013, convicting and sentencing appellant no.2 - BabuMahalappa Bandichode and appellant no.3 - Dagdu BabuBandichode, for the offence punishable under Section 302 read withSection 34 of Indian Penal Code, is set aside. They stand acquittedof the said offence. They be released forthwith, if not required in anyother case. Fine amount paid by them, if any, be refunded to them.(iii)The impugned order of conviction and consequentialsentence for the offence punishable under Section 302 of IndianPenal Code, as against appellant no.1 - Mahalappa Babu Bandichode,is maintained.[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP
Arguments
6Cri Appeal No.142 of 2022A1 and A3 to have been at their home that too, in the company ofthe deceased on the intervening night of 27th and 28th March, 2012.He would further submit that A1 immediately approached the policestation and gave a statement. The Police Head Constable, whomade enquiry into the the unnatural death case, has not beenexamined. He was made to wait for long and thereafter, hisstatement was recorded. On the question of the disclosure statementmade by A3 - Dagdu, learned counsel would submit that the pillowshad already been found while the spot panchnama (Exh.25) wasdrawn. The electric wife seized pursuant to the disclosure statementwas not sent to C.A. to find whether there were blood stains on it orhuman tissues were found thereon. He would further submit that theMedical Officer gave the cause of death as electric shock. She couldnot locate the entry and exit point of the electric shock. Her reportin that regard was adverted to. Relying on the authorities, learnedcounsel would submit that the burden to prove the charge beyondreasonable doubt is on the prosecution throughout the trial. Unlessthe appellants are shown to have been in the company of thedeceased soon before she met with homicidal death, they could notbe called upon to explain the circumstances in which the deceasedmet with death. According to him, it would nothing but the reverseburden. 7Cri Appeal No.142 of 20229.Learned counsel for the appellants would further submitthat the time gap between the post mortem examination and theshouts emanating from the house of the appellants heard by PW 8 –Anuja, was more than 12.00 hours. It creates suspicion about thetestimony of PW 8 - Anuja, neighbour of appellants. Admittedly, thetable-fan was found lying nearby the dead body of Sujata. One endof wire of the fan and other end thereof at the switch board, bothhad turned black due to burning. Same indicates that the wire oftable fan was burst. There was report of the Electrical Inspectorindicating that electric supply was in order and there was no outageon the fateful night. He would further submit that no opinion of theexpert namely, Electrical Inspector has been obtained, as to whetherthe deceased could have suffered such injuries due to electric shock.He would submit that the ornaments of the deceased were intact onher person. No injury thereby she could suffer. According to learnedcounsel, all in all, the prosecution has failed to bring home thecharge beyond reasonable doubt. Not a single circumstance reliedon, has been conclusively proved. He would submit that the demandof the deceased for partition of land was not of her benefit becauseshe did not have any right, title and interest in the family property.Whatever would have been given in partition was that of herhusband and none else. Learned counsel would, therefore, urge for 8Cri Appeal No.142 of 2022allowing the appeal. The authorities relied on by learned counsel forthe appellants are as follows :-Sr.No.CitationRelevant paraPageNo.1.AIR 1991 SC 1388Jaharlal Das Vs. State of Orissa8, 9 and 121-82.2006 AIR SCW 1053P. Mani Vs. State of T.N.10, 12 and 149-123.(2009) 12 SCC 588(Sohel Mehaboob Shaikh Vs. State ofMaharashtra)5 to 713-144.2015(3)Bom.C.R. (Cri.) 609(Suresh Vithal Parkar Vs. State ofMaharashtra)12 to 1615-195.2016 DGLS (Bom.) 40Sunil Latari Khuje Vs. State ofMaharashtra6 to 1220-236.Criminal Appeal No.512 of 2017Mr.Ulhas Sudam Gorhe Vs. State ofMaharashtra6 to 924-317.2021 DGLS (SC) 120Banabihari Mohapatra and ors. Vs.State of Odisha21, 26, 32, 35to 3932-388.AIR Online 2021 SC 97Shivaji Chintappa Patil Vs.State of Maharashtra17, 18, 22, 23,27, 30, 3439-459.AIROnline 2021 SK 40Santosh Kumar Pandey Vs. State ofSikkim9, 11, 1646-6210.(2023)1 SCC 83Rahul VS. State of Delhi and ors.17 and 30, 39to 43, 4563-9010.Learned APP would, on the other hand, submit that thespot panchnama (Exh.25) and the inquest panchnama (Exh.66) 9Cri Appeal No.142 of 2022indicate the deceased to have suffered ten electric burn injuries.Had she really suffered electric shock, she would have suffered notmore than one injury. Her body would have turned blacken. Theblood was seen oozing from her eye and mouth as well. There wereblood stains on the floor of the room. According to learned APP, theoffence took place in the matrimonial home of the deceased. There,therefore, could not be independent witness. Relying on thejudgment in the case of Trimukh Maroti Kirkan Vs. State ofMaharashtra, (2006)10 SCC 681, he would submit that it was forthe appellants to come clean. PW 8 – Anuja was an independentwitness. Her evidence and the evidence of the deceased’s motherand brother would indicate that all was not well between Sujata onone hand and the appellants on the other.11.Learned APP would further submit that a day before theincident, Sujata had been to the residence of her sister. Sujata hadmade phone call to her brother (PW 5 – Satish), informing theappellants to have been threatening to commit her murder. It is onlyon his (PW 5 – Satish) request, she had returned to her matrimonialhome. On the following day, the threat proved true. Learned APPwould further submit that when the appellants were in the know ofthe deceased to have suffered electric shock, there is nothing to 10Cri Appeal No.142 of 2022indicate any efforts to have been made by them to rush Sujata tohospital or nearest medical clinic nor was there any evidence toindicate a Doctor was summoned to examine her. Same speaks involumes. According to him, the prosecution could produce inevidence, which it could gather; rest of the things were within theknowledge of the appellants. When the daughter-in-law met withhomicidal death at her matrimonial home, it is for the husband andthe in-laws to come clean, else face the consequences. According tolearned APP, the trial court, relying on Section 106 of the EvidenceAct and the evidence on record, has rightly convicted the appellants.He, therefore, urged for dismissal of the appeal.12.Considered the submissions advanced. Perused theevidence on record and the judgment impugned herein.13.The prosecution case stated above in paragraph 4 isalmost not in dispute. We, therefore, propose not to reiterate thesame. Let us, now, turn to the evidence on record and appreciatethe same. A bit repetition is, however, bound to occur. Admittedly,Sujata married A1 – Mahalappa in the year 2004. After one and halfyears of marriage, they both shifted to Pune. He took a premises onrent in the nearby of the house of Amol, at Bhosari. After 4-5 11Cri Appeal No.142 of 2022months, Sujata joined him in Pune and started residing with him.Dagdu (A3) visited Pune after first month’s service was completed byA1. A1 brought a cellphone for his brother A3. Sujata did not likethe same. It was her case that A1’s salary was meager to make bothends meet. She, therefore, started running a mess. It appears thather in-laws did not like the same. Both A2 - Babu and A3 – Dagduvisited their house in Pune and asked them to come back to thevillage. In the meanwhile, Sujata had conceived and delivered ababy boy (Sanket).14.After some days, again, both A2 and A3 visited Pune andstarted packing the household articles, so as to get A1 – Mahalappaand and Sujata back to the village. As it would have been midway ofthe academic year of Sanket (son of deceased and A1), both A2 andA3 brought Mahalappa (A1) back to the village. As such, Sujata andher son remained at Pune. For Mahalaxmi festival, Satish (PW 5)took them to his parental house at village AshtaKasar. Again, A2 andA3 along with some of the villagers visited the parental house ofSujata to get her back to her matrimonial home. She asked them topay for the rent of the room at Pune and the school fees of her child.Since no money was paid to her, she sold some furniture and T.V. set.Her in-laws disliked the same. For few days, she stayed at the house 12Cri Appeal No.142 of 2022of her brother Amol and then came back to her parental house atvillage Ashta-Kasar. Again, a meeting took place between theparents of Sujata, her in-laws and some of the villagers. Sujata’sfather agreed to send her back to the matrimonial home as her in-laws promised to treat her well. It was also case of Sujata that a plotwas purchased at Pune by A2 in the name of A3. She wanted tohave it purchased in the name of her husband. She was, therefore,annoyed. At her matrimonial home, quarrel was the everydayfeature between her one hand and her in laws and husband, on theother. 15.A2 (Sujata’s father-in-law), once, assaulted her withservice-wire. It was about a month before the fateful day. She,therefore, started residing separately in one of the rooms at hermatrimonial home. She would cook separately as well. The reasonbehind the quarrel was Sujata’s demand for separation of herhusband’s share in the agricultural land. On the fateful night, theappellants gave her electric shocks. She succumbed thereto. On theearly morning of 28.03.2012, A2 informed Sujata’s mother (PW 4 -Mangalbai) Sujata to have been serious due to electric shocksuffered accidentally. The father of Sujata was in Pune. He too wasinformed. All of them came to the house of the appellants atBelamb. 13Cri Appeal No.142 of 202216.It is true that before resumption of cohabitation, ameeting was held at the house of Varnale-Savkar, at village Belamb.Varnale-Savkar has not been examined. Resumption of cohabitationat the request of the appellants, is a fact not in dispute. It is alsotrue, one Mashak Shaikh was not examined, who claimed to havelearnt Sujata died of electric shock. His non-examination also wouldnot be fatal for the prosecution, if the evidence on record was foundto be sufficient to make out the charge. The prosecution case, asstated herein above, also has been reiterated by PW 4 – Mangalbaiand PW 5 – Satish (mother and brother of Sujata). The questions putto both of them in cross-examination go a long way to indicate thatSujata along with A1 had shifted to Pune after one and half years ofmarriage. She delivered a baby boy there. He was admitted in anEnglish medium school. To make both ends meet, she had startedrunning a mess. It appears that A2 and A3 disliked the same. Theyhad come to Pune to get both A1 and Sujata back to the village alongwith their child. Sujata refused, as it would have been mid-academicreturn. She had asked the in-laws (A2 and A3) to pay for the rent ofthe room and the school fees of her child. She was annoyed with herhusband as he (A1) had purchased a cellphone for his brother (A3).She was also annoyed as a plot was purchased by A2 in the name ofA3 – Dagdu, at Pune, and not in the name of her husband (A1). The 14Cri Appeal No.142 of 2022evidence also indicates that A2 and A3 brought A1 back to thevillage, leaving Sujata and her child at Pune. She, therefore, went toher father’s house at village Ashta-Kasar. She resumed the maritaltie after a meeting was held, wherein, the appellants promised totreat her well. It appears that Sujata was quarrelsome. She wasasking for partition of share of her husband in the family property.There, therefore, used to be frequent quarrels between her on onehand and the appellants, on the other. 17.PW 5 – Satish testified that Sujata had related him thather father-in-law, once, had assaulted her with service-wire. Sincethen, she had started residing separately in one of the rooms of thehouse. She would cook separately as well. True, this fact has notbeen stated by Sujata’s mother. We have to see the quality ofevidence and not the quantity. Whatever was stated by the deceasedabout her illtreatment, leading to the incident to be very muchadmissible in the evidence in view of Section 32(1) of the EvidenceAct, as circumstances of the transaction which resulted in her death.We do not dwell at length, on the evidence of the mother and brotherof the deceased, since the case is based on the circumstantialevidence. Their evidence further indicates that all was not well andSujata was not dealt with properly by the appellants at her 15Cri Appeal No.142 of 2022matrimonial home. The FIR was lodged by her father Suresh. Hedied before the trial commenced. The FIR (Exh.64), therefore, cameto be admitted in evidence based on the evidence of PW 9 -Anandrao, who had recorded the same on the say of the deceasedSuresh.18.Now, let us turn to the circumstances the prosecutionrelied on to bring home the charge. The circumstances are: (i)illtreatment of the deceased and motive; (ii) homicidal death; and(iii) conduct of the appellants inconsistent with their innocence. Illtreatment of deceased and motive:19.Both these points have been addressed herein aboveitself. It is not known as to why, the appellants and female members(acquitted) were charged with offence under Section 498-A of IndianPenal Code when the ingredients thereof could not be attracted. Theprosecution case was that when A1 had joined service at Pune andstarted earning salary and Sujata would earn by running a mess, thein-laws (A2 and A3) had asked them to pay them some money.Same could not have been termed to be unlawful demand. Be thatas it may. The fact remains that the appellants have already been 16Cri Appeal No.142 of 2022acquitted of the offence under Section 498-A of Indian Penal Code.By such acquittal, the motive behind the offence did not vanish. TheEvidence of PW 5 – Satish has already been referred to, to indicatethat a month before the incident, A2, father-in-law had assaultedSujata with service-wire and therefore, she had started residingseparately in one of the rooms of the very house. The fact that shehad stayed at her parental house for long and on assurance of the in-laws to treat her well, she resumed cohabitation, goes a long way toinfer that she was not dealt with properly at her matrimonial home.On the previous day of the incident, she had visited the house of hersister. True, she has not been examined; but we have evidence ofPW 5 – Satish to indicate that Sujata had telephoned from her sister’sresidence, informing him the appellants to have been extending herthreats of dire consequences. It is only on her request, she returnedto her matrimonial house and met with death on the following night.Homicidal Death:-20.Based on the oral report made by A1, an unnatural deathcase was registered. It was PW 9 (Investigating Officer), whoimmediately paid visit to the house of the appellants. The spotpanchnama (Exh.25) was drawn in the presence of PW 1 – 17Cri Appeal No.142 of 2022Nandkumar. The evidence of this witness and reference to the spotpanchnama by learned counsel for the appellants indicate that thedead body of Sujata was lying on the floor in one of the rooms in thehouse comprising of five rooms. It was necessarily a room exclusivelyoccupied by her husband and their child. Pillows and bed-sheet onthe bed were not in order. The table fan was lying by the side of thedead body. One end of the electric wire of the table fan had turnedblacken due to burning/bursting, while the other end of the table fanwire connected in the switch board, had also turned blacken due toburning/bursting. Learned counsel for the appellants meant to saythat this piece of evidence would go a long way to indicate Sujata tohave suffered shock, accidentally. In our view, it might be a creationof evidence to deflect the attention. PW 1 – Nandkumar noticed theswitch board with buttons in the very room. He had noticed thatblood had oozed from her eye and mouth. There were blood spotson the floor. PW 9 – Anandrao collected the same with cotton swabs.C.A. reports on record (Exhs.26 to 28) indicate that the blood on thecotton swabs was human blood. The blood grouping thereof couldnot be made. 21.Learned counsel for the appellants would submit that thespot panchnama was drawn during 9:25 am. and 10:30 am. In our 18Cri Appeal No.142 of 2022view, no doubt about the timing could be raised since there isstatement given by A1 (Exh.65), based on which the station diaryentry no.88/2012 was registered of a case under Section 174 of theCode of Criminal Procedure at little past 9:00 in the morning. True,the police head constable, who recorded and made enquiry intounnatural death has not been examined. We will turn to the saidaspect little later.22.The fact remains that no sooner the station entry no.88of 2012 was registered, the spot panchnama was drawn. It isreiterated that the spot panchnama and the evidence of PW 1 –Nandkumar indicate that there were blood stains on the floor of theroom. The blood was oozing from the eye and mouth of thedeceased. It is true that the mother of the deceased (PW 4) testifiedto have noticed mud to have been applied to the throat of thedeceased. Same is not reflected in the spot panchnama or on theperson of the deceased. The said statement was also missing in her(PW 4 – Mangalbai) police statement.23.PW 2 – Dattu was witness to the seizure of clothes of thedeceased and the disclosure statement made by A3 – Dagdu,pursuant to which one electric wire and two pillows came to be 19Cri Appeal No.142 of 2022seized from behind the food grain bag and on the bed, respectively.This witness did not stand by the prosecution. Although this fact hasbeen reiterated by the Investigating Officer (PW 9), we find the sameto have no relevance, since the pillows were there when the spotpanchnama (Exh.25) was drawn and the wire seized pursuant to thealleged disclosure statement, was not sent to the Chemical Analyst,to find whether there were blood stains or human tissues thereon. It,therefore, cannot be said that the very wire was used for givingSujata electric shocks.24.Learned counsel for the appellants referred to thedisclosure statement made by A3 – Dagdu. According to him, if thesame is accepted as it is, it will improbabalise the prosecution case.He would further submit that no blood was noticed on the pillows.The person giving electric shock would have suffered the same. Thekit-kat switch from which electric current was obtained for givingshock to the deceased, was not seized nor the same was found atthe crime scene.25.According to us, the incident took place at dead of thenight. No third person was present in the house. It would, therefore,be anybody’s guess, in what way the deceased was given electric 20Cri Appeal No.142 of 2022shocks. The disclosure statement given by A3 – Dagdu, which is ininculpatory form, would be inadmissible in evidence. Same too hasbeen discarded as not relevant under Section 27 of the Evidence forthe reasons given immediately herein before.26.PW 7 – Dr. Amrapali was Medical Officer at PrimaryHealth Centre, at Aloor, Tq. Omerga, Dist. Osmanabad. She went tothe Rural Hospital, Murum, for conducting autopsy on the mortalremains of Sujata. Her evidence indicates that autopsy wasconducted between 3:30 p.m. and 5:16 p.m. on 28.08.2012. Shenoticed following injuries on the person of Sujata:-1.Red black coloured patch around 7x4 cm. on left cheek offace (superficial burn)2.Red black coloured patch around 6x5 cm. with smaller 3-4 patches on right side of cheek of size 1x1.5 cm.3.Multiple patches around 1x0.5 cm. on left side of face near angle of mouth.4.Brown coloured patch of 2x1 cm. over anterior chest exactly in the middle between the breast.5.Multiple red black coloured patches present on right arm,elbow, and dorsum of wrist of variable dimension.6.Red black coloured patches present on rightside of buttock of variable dimensions. 21Cri Appeal No.142 of 20227.Red black coloured patch around 6x0.5 cm. on right groin.8.Diffuse red black coloured patch on mucosal surface of upper and lower lip.9.Diffuse multiple red black colour patches on dorsum of left hand.10.Small red black patch on anterolelateral lateral aspectof left upper thigh and on dorsal aspect of left great toe of 2x2 mm.Those injuries are mentioned in paragraph 17 of the postmortemreport are superficial electric burn.In her opinion, the cause of death was cardio-respiratory arrest dueto electric shock. She further testified that the aforesaid injuriesmight be caused if electric shock is given. According to her, theseinjuries were sufficient to cause death in the ordinary course ofnature.27.The cross-examination of PW 7 – Dr.Amrapali is general innature. Same is like a literature in respect of suffering electric shockand consequences thereof. She was confronted with letter (Exh.53),wherein it has been recorded that the death had occurredapproximately within 10-12 hours immediately before beginning ofthe post mortem examination. Such period takes us back to the time