Shriram vs The State of Maharashtra

Anand Vasant Nirgude, J.—This appeal challenges the judgment and order dated 27.11.2001, passed by learned 2nd Additional Sessions Judge, Jalna, in Sessions Case No.3 of 2001, convicting the appellants for the offence punishable u/s 498-A r/w 34 of Indian Penal Code (for short "IPC") and sentenced to suffer rigorous imprisonment for a period of two years and to pay fine of Rs.2000/- with default clause. Appellant No.3 -Dinkar is held guilty for the offence punishable u/s 302 of IPC and was sentenced to suffer life imprisonment and to pay fine of Rs.1000/- with default clause. Appellant Nos.1 to 3 are also held guilty for the offence punishable u/s 201 r/w 34 of the IPC and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.2000/- each with default clause. The appellant Nos.1 and 2 were acquitted of the charge of murder. All the sentences were directed to run concurrently.

The facts leading to the prosecution case are as under:-

Appellant Nos.1 and 2 are parents of appellant No.3. Appellant No.3 got married with one Nirmala on 26.06.1999. After marriage Nirmala came to reside with the appellants at village Apegaon, Tal. Ambad, Dist. Jalna. Six months before the incident, appellant No.3 lost his job and so he started demanding Rs.40,000/-from Nirmala. He suggested her that she should get this amount from her parents. He started ill-treating her. Nirmala told about this to her parents when she went to meet her parents in Diwali, 1999. Even in March, 2000, Nirmala told about the harassment at the hands of the appellants to her parents. On 10th April, 2000, Nirmala died. Initially there was impression that Nirmala committed suicide by setting herself on fire. Later on, it was revealed that she died of asphyxia due to hanging and thereafter her dead-body was set on fire to show that it was suicidal death. Nivrutti is father of Nirmala who lodged the complaint and thereafter offence was registered and the appellants were charge-sheeted for the offence punishable u/s 498-A, 302, 201 r/w 34 of IPC. In the alternative, they were also charged to have committed offence u/s 306 r/w 34 of IPC.

At the trial, as many as 10 witnesses were examined and learned Judge came to the conclusion that the appellants treated Nirmala with cruelty in order to demand valuables from her. Learned Judge also came to a conclusion that Nirmala was hanged to death by appellant No.3 and later-on all the three appellants to destroy evidence, set her body on fire and thereby committed the offence punishable u/s 201 r/w 34 of IPC. Learned Judge also came to the conclusion that it was appellant No.3 who committed murder and thus committed offence punishable u/s 302 of IPC. Appellant Nos.1 and 2 were acquitted for the offence punishable u/s 302 r/w 34 of IPC, but State of Maharashtra or the complainant did not file any appeal against such acquittal.

We heard submissions made at Bar. Following points arise for our determination.

(i) Whether the appellants treated Nirmala with cruelty?

(ii) Whether Nirmala died homicidal death?

(iii) Whether appellant No.3 caused her death?

(iv) Whether appellants tried to destroy evidence of murder by setting dead-body of Nirmala on fire?

Before we discuss these points, we would enumerate the gist of evidence which came on record through the prosecution witnesses. P.W.1 -Nivrutti is father of Nirmala. He stated that Nirmala got married to appellant No.3 in June, 1999 at his village. At the time of marriage, appellant No.3 was employed in a company at Aurangabad. He said that Nirmala went to Apegaon for cohabitation. After the marriage, appellant No.3 lost his job. So all the appellants started making demand of Rs.40,000/- from Nirmala for securing employment to appellant No.3. Nirmala told this demand to him. She also disclosed to him that the appellants were threatening her that they would harm her physically in - case their demand was not met by her father and P.W.1 - Nivrutti assured Nirmala of help and sent her back. In March, 2000, Nirmala came to his house for attending wedding in the family. Even at that time Nirmala told him that she was subjected to ill-treatment and cruelty and were demanding money. Nirmala also disclosed that they were threatening to kill her. On 10th April, 2000, he received telephone message from Satish Tope informing that his daughter Nirmala was unwell and he should go to Apegaon immediately. He, his neighbour and relatives went to Apegaon. They saw Nirmala''s dead body in Kitchen of the house. The dead-body was completely burnt. They did not find the appellants or any other member of their family present on the spot. Within 3-4 hours, police came there and took the dead-body for post-mortem examination. The post-mortem was done on 11th April, 2000 at about 10.00 a.m. It was learnt from the Medical Officer that Nirmala was hanged or strangulated to death. Subsequently, she was burnt. After funeral his wife became unwell and this caused two hours delay in lodging the FIR. In the cross-examination, it was suggested and P.W.1 also admitted that appellant No.3 had no job and had lost his job prior to his marriage with Nirmala.

P.W.3 -Kanchan is friend of Nirmala from her native place. She said that after Nirmala''s wedding in June, 1999, she came to her village during Diwali, 1999. Nirmala told her that her husband was assaulting her and was asking her amount from her parents. Nirmala again came to their village in March, 2000. Even at that time she disclosed to her that her parents-in-laws and husband were ill-treating her and demanding Rs.40,000/-. During cross-examination, she admitted that Nirmala had come to her village for Nagpanchami of 1999 and at that time she did not disclose anything against the appellants. She further admitted that she had no talks with the appellants even though appellant No.3 visited her village during Diwali of 1999.

P.W.5 is Gorakhnath, who happened to be maternal uncle of Nirmala. He disclosed in his deposition that during Diwali festival of 1999, Nirmala had disclosed to her parents in his presence that appellant No.3 had lost his employment and for re-employment was in need of Rs.40,000/- and that all the appellants were demanding this amount from her and were threatening of dire consequences. He also added that subsequently he met Nirmala again at the time of wedding. At that time Nirmala told him that since her father could not meet the demands of the appellants, he should do something about it etc. The cross-examination revealed that the village of this witness is about 50-60 km. away from the village of the complainant. During the cross-examination, this witness also admitted that he had no occasion to disclose to the police that Nirmala told him about her father''s inability to arrange funds and so she requested him to do so etc.

The next important witness is P.W.4-Raosaheb who is resident of Apegaon, where the incident occurred. He said that his house is located at about 100 ft. away from the house of the appellant where the incident took place. This witness stated that on 10.04.2000 at about 10 a.m. he came back from the field. He heard shouts of Sarjerao who is brother of appellant No.1 He was shouting because he had seen smoke coming from the house of the appellant. Hearing the shouts he went to appellant''s house. Number of persons were already gathered there. The house was locked from the outside. He then broke open that lock. He noticed that some persons had already entered in the house by removing tins of the roof. All the persons who entered the house of the appellants started shouting that the girl died. In the cross-examination, this witness stated that after the incident, he left the spot within five minutes.

P.W.10-The Asstt. Police Inspector Patil disclosed that on 10.04.2000 he was attached to Gondi Police Station. He disclosed that on that day Accidental Death No.12 of 2000 was registered by Police Constable at his Police Station. He took over the investigation and went to village Apegaon. The report regarding Accidental Death No.12 of 2000 has come on record, which is at Exh.55. It was given by Police Patil of the village. The report disclosed that Nirmala died during 2 p.m. to 3 p.m. on 10th April, 2000, due to burning. It also mentioned further that at the time of incident no other family members were present in the house. This information reached police at about 7.30 p.m. when the A.D. No.12 of 2000 was registered. P.W.10-Patil further said that he went to Apegaon and reached there at about 8.15 p.m. He said that Police Patil of the village was present there. He also said that police and other relatives of Nirmala were also present there. He then stated that he recorded inquest panchanama. From the contents of inquest panchanama, which is at Exh.27, it is seen that the inquest was recorded between 9.30 p.m. and 10.30 p.m. He then sent dead-body for post-mortem. On next day, he again visited the spot and recorded the spot panchanama. From spot panchanama-Exh.28 it is seen that the same was recorded at about 7 a.m. on 11th April, 2000. The scene of offence panchanama indicated that the place where the incident has occurred is kitchen of the house. This kitchen is an annexe to the main house. Although the main house is double storied building, the kitchen is a single storied structure having roof made of tin sheets. It also appears that this kitchen has a door on the north side, whereas the main house has main door on the eastern side. This witness has further disclosed that on that day he recorded the statements of the witnesses and on the basis of statement of Nivrutti - father of Nirmala, police registered offence bearing Crime No.29 of 2000. He became Investigating Officer of this crime and thereafter completed investigation, which included the arrest of appellants, sending of articles to Chemical Analyzer etc.

Witness No.8 is A.S.I. Joshi, who stated that he registered the offence after he received F.I.R. cum statement of the complainant - Nivrutti, which was recorded by A.S.I. Patil. He said that he registered the offence bearing Crime No.29 of 2000 at 8.10 p.m. on 11.04.2000.

The next witness is P.W.6 -Dr.Saddar Hamid, who examined the dead-body for postmortem examination. He stated that he and Dr. Bhise examined the dead-body for post-mortem examination. He disclosed that though the dead-body was found 100% burnt externally, on careful examination he found two significant injuries on the body. There was ligature mark on upper part of neck and the second injury was fracture of second vertebrae of neck. This witness further disclosed that lungs of the deceased were found collapsed and did not contain air bubbles, carbon smoke or carbon particles. The tongue of the deceased was found protruding out. The position of the tongue indicated that the deceased died due to asphyxia. The Medical Officer also stated that unlike burn cases, there were no blisters on the skin of the deceased. He opined that the deceased died due to asphyxia by hanging. He admitted in cross-examination that in provisional certificate, which she issued, earlier than sending postmortem report, he did not mention about ligature mark around neck. He also admitted that the length and breadth of ligature mark were not mentioned in the notes. Despite cross-examination, he did not accept the suggestion of the defence that Nirmala died due to burning. This witness was quite certain that Nirmala died due to asphyxia and it was a homicidal death.

In the light of this evidence as well as having regard to the submissions of learned Counsel for the parties, we would record our findings on the points for determination mentioned below :-

Point No. 1 : -

We noticed that P.W.1,3 and 5 are consistent in mentioning that Nirmala had disclosed to all of them that she was subjected to cruelty, threats and ill-treatment on account of demand of Rs.40,000/-. They all stated that Nirmala disclosed that all the three appellants made this demand and harassed her. P.W.3-Kanchan also disclosed that Nirmala had disclosed her that her husband was assaulting her. This statement of friend of the deceased is quite significant. It is possible that such intimate things would be disclosed to a friend rather than parents. P.W.3-Kanchan did not say that Nirmala disclosed her that appellant Nos.1 and 2 were assaulting her. It is thus clear that amongst appellants, it is appellant No.3 who is attributed with a specific act of assault. The allegations against appellant Nos.1 and 2 regarding cruelty, threats and demands are general in nature. There was no difficulty for Nirmala to describe the harassment and cruelty in detail as to what the appellant Nos. 1 and 2 did to her during few months of her married life between July 1999 till March, 2000. Had she been assaulted by her mother-in-law or had she been asked to do more house-hold work by her mother-in-law, she would have disclosed it to the witnesses. Had her father-in-law done some specific act to her, which amounted to cruelty, she would have certainly disclosed the same to the witnesses. We, therefore, found that the evidence of the prosecution against appellant Nos.1 and 2 is not quite substantial. Besides, it is admitted fact that appellant No.3 had lost his job few days prior to his wedding. He was, therefore, in search of a job and in need of some funds to get a new job or to continue with the earlier job. It was he who knew as to why the amount was required and so if he had demanded the amount from Nirmala and harassed her on that count, it is rather more believable. In other words, Nirmala was harassed mainly by appellant No.3-her husband and it was he who tormented and harassed her. We are, therefore, inclined to hold that the prosecution could not prove the offence u/s 498-A of IPC against appellant Nos.1 and 2, but this charge is proved against appellant No.3.

Point No. 2:-

On this point the only relevant evidence is that of P.W.6 the Medical officer, who conducted the post - mortem examination. The witness is quite categorical in his opinion that this was homicidal death. The death was caused due to asphyxia. He also opined that asphyxia was caused due to hanging. He further opined that the burn injuries found on the person of the victim were post mortem. The learned Counsel for the appellants tried to question the correctness of this opinion. He invited our attention to the fact that if the victim was lying on the ground and if her body was set on fire, in that condition there could not be 100% burns. He suggested that in such situation the part of body which touched the floor would not get burnt. We are afraid, we cannot accept this submission because, if a dead-body is drenched in kerosene and is set on fire, the body would be burnt at least superficially all over. Besides, during the cross- examination of this particular witness, it was suggested that the victim died due to burning, but the witness rejected this suggestion. He categorically stated that the victim died due to hanging. He also stated that the ligature mark found on the neck of the deceased was ante - mortem. The following part of deposition of this witness would remove all doubts from our mind.

"Q. How it can be ascertained and distinguished that the hanging is after or before death?

Answer: In ante mortem the ligature mark are superficial, tongue protrudes out, vertebrae may be fractured, petachial hemorrhage seen, tongue dry and blackish, limbs cyanosed and in post mortem limbs are not cynosed, tongue may be or may not be protruded, ligature mark is deep, petachial hemorrhage not seen or absent."

We have no doubt in our mind that the expert witness is truthful and is also reliable. From his deposition, it is also clear that he is well versed in his subject. We also went through the judgment of the Lower Court and found that the learned Judge examined this crucial aspect of the case quite satisfactorily. Hence, we are inclined to hold that Nirmala died homicidal death.

Point No. 3:-

This probably is the most important point that arose in this appeal. The evidence which we discussed above would indicate that the deceased and the appellants were residing in their house, where the dead-body was found. At the relevant time P.W.4 did not see the appellants near the house. The witness also stated that the house was locked from outside. Attention of the witness and neighbours was attracted towards the house because they saw smoke coming from the house. Since the door of the house was closed from outside, some neighbors went up to roof and by removing tin sheets they could enter the room in which the mishap had occurred. Some of them broke open the lock of the main door and entered the house. All of them reached the kitchen and found dead-body of the victim. Immediately, the Police Patil was informed about this and then he lodged his report to police. Till that time the appellants were not seen near their house, more particularly near the dead-body. The question that arises in such situation is why the appellants were not found near the house if they were other occupants of this house. Did they offer or whether they were under obligation to explain as why they were not at home at such crucial time? The first question that is required to be asked to them is during that day where were they and at what time they had left their house? Since the door of the house was locked from outside, the presumption u/s 114 of the Evidence Act against them is that it was they who had put the lock on the door of the house before they could go away from the house. This is based on common course of natural events and human conduct. In such a situation, the burden of proving the facts specially within the knowledge of appellants would be on them. What happened between the deceased and other occupants of the house was the fact specially within the knowledge of such occupants who were admittedly appellants, so even though there is no evidence on record to suggest that during the morning of the day, the appellants were seen locking door of the house from outside and going away, still they are under obligation to explain as to who put the lock on the door and when did they leave their house before the incident? During cross-examination of P.W.1-Nivrutti, for the first time such opportunity was available to the appellants. He stated that on 10th April, 2000, when he received information, he went to village Apegaon along with his friends and relatives. They found Nirmala lying dead in the kitchen of the house. They did not see the appellants or any other member of their family nearby. This witness disclosed that the appellants did not come to spot though police recorded inquest panchanama and sent the dead-body for post-mortem examination. After post-mortem examination, this witness disclosed that the dead body was received by Sukhdeo, the cousin of appellant no.3. Even at that time appellant No.3 was not there. This witness also categorically stated that at the time of cremation of dead-body, appellant No.3 was not there. He further disclosed that after cremation of the dead-body, he noticed appellant No.2-Dwarkabai in the crowd. No suggestion is given to this witness about whereabouts of the appellants. Even during the cross-examination of P.W.4-Raosaheb the neighbour, nothing came on record as to where were the appellants at the time of inquest or cremation. The appellants, thus, did not suggest anything as to what happened prior to the incident between them and the deceased. Even in the statements recorded u/s 313 of Cr.P.C., none of the appellants gave any explanation as to what had happened between them and the deceased prior to the incident. They did not say that they had left the house earlier leaving behind the deceased Nirmala in the house etc. After above facts established by the prosecution, the onus u/s 106 of the Indian Evidence Act, 1872, shifted on the appellants to prove facts which were especially in their knowledge as mentioned. This is a case of custodial death. Deceased Nirmala was in the custody of the appellants specially the husband before she died. When she died homicidal death, all the appellants could have been held responsible for causing her death. The offence u/s 302 read with 34 could have been proved against them. But, learned Judge of the Trial Court in his wisdom held that the case of murder is proved only against respondent No.3. Unfortunately, no appeal against acquittal of accused Nos. 1 and 2 is filed by State. But, absence of appeal by the State or the complainant against appellant Nos.1 and 2 would not give any advantage to appellant No.3, who being husband had liability to explain. His conviction for the offence of murder should therefore prevail and we are not inclined to disturb the same.

Point No. 4 :-

The answer to this point is also in affirmative. The reasons are already mentioned above. Adverse inference should be drawn against all the appellants for their failure to offer explanation about the facts which was within their special knowledge. What happened to the victim prior to her death was certainly known to them. They were aware as to how she died. In order to conceal the real cause of her death, it is they who put her dead body on fire. It is they who could have done so within four walls of their house. Setting the dead-body on fire, thus amounted to offence punishable u/s 201 of IPC. Learned Judge of the Trial Court committed no error in convicting all the appellants for the offence punishable u/s 201 of IPC. We are, therefore, not inclined to interfere in the judgment of the Lower Court in this regard. The appeal should, therefore, partly succeed:-

In the result, following order is passed:-

(i) The Criminal Appeal is partly allowed.

(ii) Appellant No.1-Shriram and appellant No.2-Dwarkabai are acquitted of offence punishable u/s 498-A r/w 34 of Indian Penal Code and the order sentencing them to suffer rigorous imprisonment for a period of two years and to pay fine of Rs.2000/- is set aside.

(iii) The conviction and sentence awarded to appellant No.1-Shriram and appellant No.2 - Dwarkabai for the offence punishable u/s 201 r/w 34 of the Indian Penal Code is maintained.

(iv) The conviction and sentence awarded to appellant No.3 -Dinkar for the offence punishable under sections 498-A, 201 and 302 of Indian Penal Code is maintained.

(v) The appellants are directed to surrender to their bail for undergoing remaining sentence.

(vi) The appellants shall be entitled for the set off u/s 428 of Cr.P.C. for the period, they were under detention.