Santosh Dnyanoba Tarte vs The State of Maharashtra

V.K. Tahilramani, J—This appeal is preferred by the appellant -original accused against the judgment and order dated 28.11.2008 passed by the learned 6th Ad-hoc Additional Sessions Judge, Sewree, Mumbai in Sessions Case Nos. 490 of 2007. By the said judgment and order, the learned Session Judge convicted and sentenced the appellant as under:-

The learned Sessions Judge directed that both the sentences of imprisonment shall run concurrently.

The prosecution case briefly stated, is as under:

(a) Deceased Shraddha was the sister of PW 1 Yogesh. She was residing with her family consisting of her mother PW 3 Reshma, her brother PW 1 Yogesh and her matrnal uncle Sunil Modak at Hanuman Tekdi, Asalfa Village, Ghatkopar (W), Mumbai. Shraddha had an affair with the appellant for a number of years. This was not liked by her family. Her family convinced her not to continue the affair with the appellant, hence, Shraddha discontinued her relations with the appellant. Due to this, the appellant started harassing Shraddha. On account of this, complaints were lodged against the appellant in the Police Station by the mother of Shraddha. From the year 2004, Shraddha started working in SEEPZ company. PW 8 Jitendra was also working in the very same company in which Shraddha was working. On 1.1.2007, Jitendra went to the house of Shraddha and asked her mother, brother and maternal uncle for Shraddha''s hand in marriage. Due to this, discussion in relation to the marriage of Shraddha was going on. The appellant came to know this fact. Due to this, he got enraged.

(b) On 17.3.2007 at about 8.00 a.m., Shraddha left her house to go for work. Shraddha''s mother Reshma noticed that Shraddha had forgotten her pass in the house. Her son Yogesh (PW 1) then went behind Shraddha to give her the pass. Shraddha reached near Mastaram Baba Chowk. At that time, Yogesh was about 20 feet behind her. Yogesh saw the appellant assaulting Shraddha with fist blows on her face. The appellant asked Shraddha why she was not marrying him. Shraddha fell on the ground due to assault by the appellant. Then the appellant took a stone lying on the side of the road and assaulted Shraddha on the head with the said stone. The appellant then ran away. Meanwhile, PW 3 Reshma reached the spot. Thereafter, Yogesh and Reshma took Shraddha to Rajawadi Hospital in auto rickshaw. On the way Reshma asked her daughter Shraddha what had happened whereupon Shraddha told her mother that Santosh Tarte (appellant) hit her on the head with stone.

(c) In Rajawadi Hospital, the Doctor stitched the injury on the head of Shraddha. As the condition of Shraddha was serious, they were advised to take Shraddha to Sion Hospital. Accordingly, Shraddha was taken to Sion Hospital. At that time, Shraddha was not in a condition to speak. Shraddha was admitted in Sion Hospital, however, she died in Sion Hospital on 19.3.2007 at 2.30 a.m.

(d) Meanwhile on 17.3.2007 itself, Yogesh lodged F.I.R. stating that the appellant has caused injury to his sister Shraddha by assaulting her on the head with the stone. The offence was registered under Sections 341 and 307 of IPC. Thereafter, investigation commenced. After the death of Shraddha, Section 307 of IPC was converted into Section 302 of IPC. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

Charge came to be framed against the appellant under Sections 302 and 341 of IPC. The appellant-accused pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.

We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that there is no merit in the appeal.

The conviction of the appellant is mainly based on the evidence of PW 1 Yogesh. Yogesh is the star witness in the present case. Yogesh was the brother of deceased Shraddha. Yogesh has stated that at the time of the incident, he was jointly residing along with his mother Reshma (PW 3), his sister Shraddha and his maternal uncle Sunil Modak. He knew the appellant because the appellant was residing in their chawl. They came to know that Shraddha had a love affair with the appellant. Due to this, Yogesh lodged police complaint against the appellant. Yogesh has stated that the appellant was harassing them, therefore, his mother lodged complaint in the Police Station.

Yogesh has further stated that his sister Shraddha was working in SEEPZ company at the time of the incident. On 17.3.2007 at about 8.00 a.m., his sister left the house to go to work. Shraddha''s mother Reshma noticed that Shraddha had forgotten her pass in the house. Yogesh then went behind Shraddha to give her the pass. Shraddha reached near Mastaram Baba Chowk. At that time, Yogesh was about 20 feet behind her. Yogesh saw the appellant assaulting Shraddha with fist blows on her face. The appellant asked Shraddha why she was not marrying him. Shraddha fell on the ground due to assault by the appellant. Then the appellant took a stone lying on the side of the road and assaulted Shraddha on the head with the said stone. The appellant then ran away. Meanwhile, Reshma, the mother of Yogesh reached the spot. Thereafter, Yogesh and Reshma took Shraddha to Rajawadi Hospital in auto rickshaw. On the way Reshma asked her daughter Shraddha what had happened whereupon Shraddha told her mother that Santosh Tarte (appellant) hit her on the head with stone. Yogesh then lodged FIR against the appellant. While Shraddha was admitted in the hospital, on 19.3.2007 at 2.30 a.m. she expired.

The evidence of PW 1 Yogesh shows that he has witnessed the actual assault by the appellant with a stone on the head of Shraddha. Though some omissions have been brought on record in the evidence of PW 1 Yogesh, none of these are such which affect the basic substratum of the prosecution case. In addition, Yogesh has stated about oral dying declaration made by Shraddha to her mother PW 3 Reshma.

PW 3 Reshma has stated that Shraddha was her daughter. She was residing at Hanuman Tekdi with Shraddha and her son Yogesh. She knew the appellant. There was love affair between the appellant and her daughter Shraddha. They gave understanding to Shraddha not to continue with the love affair with the appellant. Thereafter, Shraddha did not keep any relations with the appellant. Due to this, the appellant started to harass them. On account of this, Reshma lodged three complaints against the appellant in the Police Station. Meanwhile, the appellant came to know that Shraddha''s marriage has been fixed with one boy namely Jitu Waichal i.e PW 8. The appellant then started giving threats to Shraddha and Yogesh. Due to this, they were afraid of the appellant.

Reshma has further stated that the incident occurred on 17.3.2007. On that day, her daughter Shraddha as usual left the house at about 8.00 a.m to go to work. Shraddha had forgotten her pass in the house, therefore, Yogesh went out of the house to handover the pass to Shraddha. After sometime, Reshma was informed that the appellant had assaulted her daughter with stone near the Math and caused injury to her, therefore, she rushed to the spot. At the spot, she saw her son Yogesh putting her daughter Shraddha in an auto rickshaw. She saw bleeding injury on the head of Shraddha. On the way to the hospital, Reshma asked her daughter what had happened. Shraddha then told her that the appellant had assaulted her with a stone on the head due to which she sustained injury to the head. They then admitted Shraddha in Rajawadi Hospital. The Doctor stitched the injury, however, he advised them to shift Shraddha to Sion Hospital, therefore, they shifted Shraddha to Sion Hospital. Shraddha was admitted in I.C.U. in Sion Hospital. When she was admitted in Sion Hospital, Shraddha was unconscious.

The evidence of PW 1 Yogesh and PW 3 Reshma shows the motive for the appellant to commit the crime. In addition, the prosecution has examined PW 8 Jitendra to prove the motive for the appellant to commit the murder of Shraddha. Jitendra has stated that he knew Shraddha who was working in his company. On 1.1.2007, he had gone to the house of Shraddha to ask her mother, brother and maternal uncle for Shraddha''s hand in marriage. In the month of February 2007, Jitendra received a phone call from the appellant on his mobile. The person who spoke on the phone stated that he is Santosh Tarte. He told Jitendra that he wants to meet him. Jitendra told him what was the reason that Santosh wanted to meet him. Thereupon, he told Jitendra that he wished to see him in relation to Shraddha. The appellant also told Jitendra that he was having love affair with Shraddha. Two days thereafter, the appellant came to SEEPZ company in MIDC, Andheri to meet Jitendra, however, Jitendra was not there at that time. On 27.2.2007, when Jitendra was proceeding along with Shraddha and one Sanjay to Aarey Check Post, Shraddha pointed out the appellant to Jitendra and told Jitendra that he is the same person. Thereafter, the appellant told Jitendra that he was having love affair with Shraddha since 7 to 8 years. The appellant also threatened Shraddha and Jitendra with dire consequences if they got married. Thereafter, the appellant went away. On the same day in the evening, Jitendra received a phone call from the appellant. The appellant threatened him not to perform marriage with Shraddha. The appellant again threatened Jitendra with dire consequences if he got married to Shraddha. Similar telephone call was received three days thereafter and again on 16.3.2007. On 16.3.2007 at about 7.30 p.m. to 8.30 p.m., Jitendra told the appellant that he and Shraddha intended to get married. At that time also the appellant threatened Jitendra and told him not to marry Shraddha. On 17.3.2007, Jitendra came to know that Shraddha was assaulted with stone by the appellant and she had sustained bleeding injury and was admitted in Sion Hospital.

It is the prosecution case that the appellant assaulted Shraddha with a stone on the head which resulted in her death. This is supported by the medical evidence. PW 6 Dr. Dere performed the postmortem on the dead body of Shraddha. On external examination, he found the following injuries on the dead body of Shraddha:-

CLW of 6 x 2 x 1 cm over right occipital region behind right ear (sutured);

CLW of 4 x 3 x 1 cm over right temporal region (sutured);

CLW of 2 x 1 cm with abraded margins over right frontal bone 2 in numbers;

Contusion of 6 x 3 cm over left arm (blueish in colour) just above left wrist;

CLW of 4 x 0.5 x 0.5 cm over left hand middle finger -red to pink in colour;

Abrasion of 2 x 1 cm over right elbow;

Contusion of left eye.

According to Dr. Dere, all these injuries were ante-mortem injuries.

On internal examination, Dr. Dere found following injuries on the head of the dead body:-

Bleeding under scalp over right frontal right temporal and vertex;

Fracture of right temporal bone and tempro-parietal region (right);

Contusion of 1.7 x 1.3 cm over right temporal region;

Bleeding over face present.

According to Dr. Dere, the probable cause of death is shock due to cranio cerebral injury associated with multiple injuries (unnatural). In the opinion of Dr. Dere, the injury Nos. 5 and 6 could be possible in defence or they are defence injuries.

It is the defence of the appellant that Shraddha fell down accidentally and sustained injuries due to which she died, however, this contention is belied by the evidence of PW 6 Dr. Dere who has stated that it is not true to say that the injuries are possible when a person accidentally falls and rolls down the slope of a hillock.

As stated earlier, the defence of the appellant is that Shraddha accidentally fell down and received injuries due to which she died. To support this defence theory put forward by the appellant, he has examined himself as DW 1 and DW 2 Chandrakant. The appellant has stated that there was love affair in between him and Shraddha since last 8-10 years. The family members of Shraddha were against this love affair. Quarrels had taken place between his family members and family members of Shraddha. Due to this, the mother and maternal uncle of Shraddha had lodged complaint with police against him (appellant). The appellant has further stated that on 17.3.2007 at about 7.45 a.m., he was cleaning his mouth. At that time, Shraddha came out of her house and made a gesture to him indicating that she wanted to say something to him, hence, he followed Shraddha. Shraddha went near the house of Rajendra Rane which was towards mountain. The appellant followed her. Shraddha was nervous and she asked him when he would marry her. She told him that her family members were settling her marriage with some other person and she told him that they would run away. The appellant told Shraddha that he would take proper decision within 4-5 days. Then Shraddha told him if that is not possible, then they should both commit suicide. The appellant replied that it was not possible. Due to this, Shraddha got annoyed and she pushed the appellant. In order to save himself, the appellant caught hands of Shraddha. Consequently, both of them fell down from the mountain side. After falling, he became unconscious.

It is to be noted that the categorical case of the appellant is that Shraddha pushed him and as he was falling down, he caught her hands to save himself due to which both of them fall down the mountain slope and sustained injuries. However, the second witness examined by the appellant i.e DW 2 Chandrakant gives entirely different story. Chandrakant has stated that on 17.3.2007 at about 8.00 to 8.30 a.m., he was heating water outside his house. At that time, the appellant came in front of his house along with a girl. They were talking to each other. After sometime, he saw that the people had gathered near the mines side. When he went there, he head the news that two persons had jumped. Thus, DW 2 Chandrakant has come forward with a story of suicide whereas the appellant states that it was a case of accidental fall. As stated earlier, PW 6 Dr. Dere has categorically denied that such injuries are possible if a person accidentally falls and rolls down the slope of a hillock. Looking to the contradictory stand taken by the two defence witnesses and looking to the evidence of PW 6 Dr. Dere, we are of the opinion that the evidence of the appellant or DW 2 Chandrakant cannot be relied upon.

On going through the record, we are of the opinion that the evidence of PW 1 Yogesh, PW 3 Reshma and the medical evidence is sufficient to sustain the conviction, hence, we do not find it necessary to refer to the other evidence. As stated earlier, the evidence is sufficient to sustain the conviction, hence, we find no merit in the appeal. The appeal is dismissed.

We quantify legal fees to be paid by the High Court Legal Services Committee to the appointed Advocate Ms. Rohini M. Dandekar at Rs. 5000/-.