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Judgment
,
1] By this appeal, the appellants have challenged the judgment and order dated 16Â12Â2004, passed by the Sessions Court, Bhandara (trial Court) in",
Sessions Trial No.10 of 1999, whereby the appellants have been convicted under Section 304ÂI read with Section 34 of the Indian Penal Code (IPC)",
and they have been sentenced to suffer rigorous imprisonment for 10 years each and to pay fine of Rs. 2000/Â each.,
2] The prosecution case in brief is that one Taman, son of complainant Tejubai (PWÂ3) returned home from work in the evening on 01Â12Â1998. He",
was annoyed with his mother Tejubai (PWÂ3) as she had not cooked food and he started abusing her and asked her to leave the house. As the said,
Taman rushed towards Tejubai (PWÂ3) to beat her, she left the house, upon which Taman followed her with stick in his hand and inadvertently beat",
one Shantabai (mother of accused no.1Âappellant no.1ÂShobhelal herein). As the said Shantabai went to her son (appellant no.1) and told him about,
the incident, he was enraged and he rushed towards the house of the said Taman with his two friends (appellant nos. 2 and 3). As per the prosecution",
case, the three accused persons (appellants herein) then dragged the said Taman out of the house and beat him mercilessly with kicks and blow.",
Thereafter, they took him inside and hanged him to window with the help of Nylon rope thereby strangulated him, resulting in his death.",
3] When the complainant (PWÂ3) saw her son in the said condition she raised hue and cry. But, a report dated 02Â12Â1998 was lodged with the",
Police purportedly by the complainant Tejubai (PWÂ3) in which it was stated that her son, the deceased Taman, had strangulated himself. On this",
basis, a report of accidental death was registered in the Police Station. This report was submitted at the behest of Police Patil. It is the case of the",
prosecution that when the Investigating Officer (PWÂ8) in the present case undertook investigation and recorded statements, he found that the",
incident in question had not occurred in the manner in which it was reported and thereupon he submitted a report on 03Â12Â1998 in Police Station,
Goregaon, whereby a First Information Report (FIR) was registered against the appellants for the death of said Taman under Section 302 read with",
Section 34 of the IPC.,
4] Body of the deceased was sent for post mortem and the report showed that the said Taman had died due to asphyxiation caused by strangulation.,
On the basis of the material collected during investigation, a chargeÂsheet was submitted and the appellants were charged for having committed an",
offence under Section 302 read with Section 34 of the IPC.,
5] In support of its case, the prosecution examined nine witnesses. The material witnesses are (PWÂ1) panch witness for inquest panchanama and",
spot panchanama, (PWÂ3) the complainant and the mother of the deceased, (PWÂ7) the doctor, who conducted the post mortem and (PWÂ8) the",
Investigating Officer. In the present case, PWÂ4, PWÂ5 and PWÂ6 were examined by the prosecution as the eye witnesses to the incident but they",
turned hostile and therefore, it was essentially the evidence of complainant (PWÂ3) that supported the case of the prosecution.",
6] On the basis of the evidence and material on record, the trial Court found that despite the aforesaid eye witnesses turning hostile, there was",
sufficient evidence on record to show that the appellants were indeed responsible for the death of the said Taman. The trial Court found that although,
the appellants were responsible for the death, their case fell in Exception 4 to Section 300 of the IPC. Accordingly, the trial Court convicted the",
appellants under Section 304ÂI of the IPC instead of Section 302 of the IPC. The trial Court found that no leniency could be shown to the appellants,
for the manner in which they had strangulated the deceased and thereafter they had sought to mislead the investigation by showing as if the deceased,
had committed suicide. On this basis, the trial Court sentenced the appellants to suffer rigorous imprisonment for ten years. Aggrieved by the same,",
the appellants have filed this appeal.,
7] Shri I.S. Charlewar, learned Counsel appearing on behalf ofthe appellants submitted that when PWÂ4, PWÂ5 and PWÂ6 had turned hostile and",
there was no eye witness to support the prosecution case, the trial Court had committed an error in passing the impugned judgment and order. It was",
contended that the evidence of complainant (PWÂ3) was not enough to convict the appellants because she had not stated anything about the alleged,
assault by the appellants on the deceased and the medical evidence on record also did not support the case of the prosecution at all. It was contended,
that when there was sufficient material to show that the deceased was a drunkard, it was possible that he had suffered self inflicted injuries leading to",
his death. According to learned Counsel, there was hardly any material to connect the appellants to the incident in question. On this basis, the learned",
Counsel for the appellants submitted that the impugned judgment and order deserved to be dismissed.,
8] Per contra, Mrs. Swati Kolhe, learned APP appearing on behalf of the State submitted that even if the eye witnesses in the present case had",
turned hostile, the evidence of complainant (PWÂ3) read with evidence of doctor (PWÂ7) and the inquest panchanama, as also the post mortem",
report were enough to show that the trial Court had correctly convicted and sentenced the appellants. In the present case, it was submitted that the",
ligature marks being horizontal and all around the neck demonstrated that there was no question of the deceased having hanged himself with a Nylon,
rope, as suggested by the defence and that the medical evidence on record was sufficient to show that the injuries suffered by the deceased were not",
self inflicted. The evidence of complainant (PWÂ3) was enough to show that it was indeed the appellants who were responsible for the death of said,
Taman. It was further contended that the complainant (PWÂ3) was a rustic woman and there were minor variances found in her deposition, which",
could not be said to be fatal for the prosecution. The learned APP placed reliance on the judgment of the Division Bench of this Court in the case of,
Smt. Varsha w/o Baba Itankar vs State of Maharashtra, reported at 2008 ALL MR (Cri) 3190.",
9] Heard Counsel for the parties. In the present case, it is evident from the record that three eye witnesses to the incident i.e PWÂ4, PWÂ5 and",
PWÂ6 turned hostile. They deposed before the Court that they knew nothing about the incident. This was diametrically opposite what they had stated,
in their statements made to the Police. Therefore, it was essentially the evidence of complainant (PWÂ3 and the mother of deceased), which",
supported the case of the prosecution. A perusal of the evidence of said witness shows that she has categorically stated that the report submitted on,
02Â12Â1998 in her name by the Police Patil was false and that the said report did not correctly describe the incident in question. This witness has,
then stated about the manner in which the incident occurred on 01Â12Â1998. She has categorically stated that the appellants had come with intention,
to beat the deceased in her house. She then stated that she left the house to call the neighbours because she was scared and when she came she saw,
the appellants were fleeing from the spot and that her son was found hanging from the window with a Nylon rope around the neck. It has come in her,
evidence that the deceased had inadvertently beaten the mother of appellant no.1 under a wrong impression, leading to the said appellant no.1",
becoming enraged and assaulting her son along with the other appellants. In the cross examination, the defence of this witness has not been",
discredited in any manner.,
10] The other relevant witness in the present case is PWÂ7, the doctor, who had conducted the post mortem. A perusal of the evidence of said",
witness shows that there was a ligature mark completely encircling the neck of the deceased and that the cause of death was asphyxia due to,
strangulation. In the cross examination this witness has categorically stated that complete ligature mark encircling the neck is possible only when the,
rope ends are stretched by external force. The said witness has also stated that the upper limb of the deceased was flexed and fist was clenched,",
indicating that there was struggle at the time of death. It was also stated that there was no mark of knot noticed on the ligature mark.,
11] The inquest panchanama in the present case shows that there was black coloured injury on the left shoulder and the arm was swollen. The post,
mortem report shows that the stomach of the deceased was full of rice. It is evident that although PWÂ4 was one of the eye witnesses in the present,
case who had turned hostile, but in his evidence this witness has stated that the Sarpanch and Police Patil had forcibly obtained his signature on",
ExhibitÂ24 i.e. the report purportedly submitted by the complainant (PWÂ3) on 02Â12Â1998 regarding the deceased having strangulated himself.,
This indicates that the initial report dated 02Â12Â1998 said to have been submitted by the complainant (PWÂ3) was absolutely false, as deposed by",
the complainant herself. Therefore, the evidence on record does indicate that there was attempt made initially to give an impression as if the deceased",
Hanging,Strangulation
1Â Mostly suicidal,1Â Mostly homicidal
2 FaceÂUsually pale and petechiae rare,"2 FaceÂCongested,livid and marked with
petechiae
3 SalviaÂDribbling out of the mouth down
on the chin and chest",3 Salvia No such dribbling
4 NeckÂStretched and elongated in fresh
bodies",4 NeckÂNot so.
5 External signs of asphyxia, usually not
well marked","5 External signs of asphyxia, very well
marked (minimal if death due to vasovagal
and carotid sinus effect)
6 Bleeding from the nose, mouth and ears
very rare","6 Bleeding from the nose, mouth and ears
may be found.
7 Ligature markÂoblique, noncontinuous
placed high up in the neck between the
chin and the larynx, the base of the groove
or furrow being hard, yellow and
parchmentlike.","7 Ligature markÂHorizontal or transverse
continuous, round the neck, low down in
the neck below the thyroid, the base of the
groove or furrow being soft and reddish.
8 Abrasions and ecchymoses round about
the edges of the ligature mark, rare.","8 Abrasions and ecchymoses round about
the edges of the ligature mark, common.
,"9 Subcutaneous tissues under the mark Â‐
Ecchymosed.
10 Injury to the muscles of the neckÂRare,"10 Injury to the muscles of the neckÂ‐
common.
11 Carotid arteries, internal coats ruptured
in violent cases of a long drop","11 Carotid arteries, internal coats ordinarily
ruptured.
12 Fracture of the larynx and tracheaÂ‐
Very rare and that too in judicial hanging.","12 Fracture of the larynx and tracheaÂ‐
Often found also hyoid bone.
13 FractureÂdislocation of the cervical
vertebrae Common in judicial hanging.","13 Fracture dislocation of the cervical
vertebraeÂRate.
14 Scratches, abrasions and bruises on the
face, neck and other parts of the bodyÂ‐
usually not present.","14 Scratches, abrasions fingernail marks
and bruises on the face, neck and other
parts of the bodyÂUsually present.
15 No evidence of sexual assault.,15 Sometimes evidence of sexual assault.
16 Emphysematous bullae on the surface of
the lungsÂNot present","16 Emphysematous bullae on the surface of
the lungs May be present.