498A :Husband
or relative of husband of a
woman subjecting her to cruelty:Whoever,
being
the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may
extend to three years and shall also be liable
to fine.
Explanation :For
the purpose of this section,
“cruelty means:::
(a) any willful conduct which is of such a
nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to
life, limb or health (whether mental or
physical) of the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful
demand for any property or valuable security or
is on account of failure by her or any person
related to her to meet such demand.”
Looking to the above clause (a) and facts
proved in the present matter, it is clear that
accused no.1 indulged in willful conduct of
keeping accused no.3 constantly with them although
he had come down for honeymoon with Shashibala.
The trial Court has rightly observed that such
acts amounted to cruelty. The just married bride
having third person young girl, declared as deemed
sister, sharing the same bed must be said to be
suffering cruelty. Such conduct of husband is
likely to drive the bride to cause grave injury to
her health affecting the mental and physical
health of the wife. The trial Court has rightly
held accused no.1 guilty under Section 498A.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 371 OF 1997
Bhupendra S/o Govardhanlal Sachdeva, V The State of Maharashtra ...
CORAM: NARESH H. PATIL &
A.I.S. CHEEMA, JJ.
DATE OF PRONOUNCING JUDGMENT: 6th August, 2013.
Citation;2015 ALLMR(CRI)939
1. These appeals have been filed by original
accused Nos. 1 and 3 respectively. Both of them
were charged along with accused no.2 Govardhanlal
Shriramdas Sachdeva, the father of original
accused no.1 Bhupendra. Accused no.2 Govardhanlal
came to be acquitted by 2nd Additional Sessions
Judge, Aurangabad of offence punishable under
Sections 498A, 304B
of the Indian Penal Code,
1860 (“IPC” in brief). Accused No.1 Bhupendra and
accused No. 3 Rupindar were convicted of offence
punishable under Section 302 of IPC and sentenced
to suffer imprisonment for life. Accused No.1
Bhupendra was convicted under Section 498A of IPC
and sentenced to suffer rigorous imprisonment for
one year. Accused No.3 Rupindar came to be
convicted under Section 114 of IPC and sentenced
to suffer rigorous imprisonment for one year.
Sentences of fine of Rs. 1,000/and
in default,
to suffer rigorous imprisonment for six months
were also passed under Sections 302, 498A and 114
of IPC. Accused No.1 Bhupendra came to be
acquitted as regards offence punishable under
Section 304B of IPC, which was also part of the
charge.
Accused Nos. 1 and 3, being aggrieved by
the conviction and sentences passed against them,
have preferred these appeals.
Case of Prosecution
2. The case of prosecution as brought before
the trial Court, in brief, is as under ::::
(a) PW1
Akbar Ali has a hotel known as
“Shangrila” opposite S.T. Bus stand at Aurangabad.
Accused No.1 Bhupendra along with his wife
Shashibala (now deceased) had checked in at the
hotel in Room no. 18 along with accused no.3. In
the night between 17.12.199318.12.1993
at
4.004.30
hours PW7
Receptionist Vijaysingh
Rajput phone called PW1
owner Akbar Ali that a
girl had fallen from Room No.18 through the window
and he should come. The room was on “Dusara Mala”
i.e. First Floor of hotel. Shashibala, the wife of
accused Bhupendra was reported to have fallen on
the ground and died. Akbar Ali sent his son to the
Police and reaching the spot saw the situation.
Police came to the spot. Shashibala was taken to
GHATI hospital at Aurangabad by Akbar Ali
accompanied by his son, accused no.1 and the
constable. At the hospital, Shashibala was
declared dead.
(b) In the morning at about 8 a.m. of 18.12.1993,
accused No.1 Bhupendra Sachdeva filed Accidental
Death report (Exhibit 89) before PW6
Head
Constable Vasant Dhole at Police Station Kranti
Chowk.
Accidental Death ReportIn
the Accidental Death Report registered
at serial number 71/1993, accused No.1 Bhupendra
informed that he had got married to Shashibala,
daughter of Omprakash Sakhuja on 18.11.1993 at
Delhi and he alongwith his wife Shashibala had
started for honeymoon on 07.12.1993 and by Goa
Express reached Manmad on 08.12.1993 so as to come
to Aurangabad. At Manmad, he was received by
accused No. 3 Rupindar, who is deemed sister of
accused no.1 Bhupendra. They checked in room No.
18 of hotel Shangrila on 08.12.1993. On
17.12.1993, he alongwith his wife and Rupindar
(accused No.3), friend Mukesh and Sanjay went to
Elora and came back at about 10 p.m. They had used
two Scooters and one Motorcycle and had food but
had not consumed any intoxicants. In the night at
about 12.45 a.m. Bhupendra came back from walk to
the room. At that time, his wife Shashibala and
accused no.3 Rupindar, the deemed sister, were
sleeping on the same bed and he also went and
slept. He slept near the wall, then his wife and
then his deemed sister. Sometime in the night he
saw his wife Shashibala strolling in “Varandah”
and when he asked, she said that she is feeling
giddy and so is strolling. He told her that it is
very cold outside and so she come inside. She came
inside but did not sleep. The doors and windows
were closed as outside it was very cold. As he had
headache, he applied balm and went to sleep. Later
on he heard some thud sound and when he got up, he
saw that his wife Shashibala was not there. Door
was closed from inside. He checked the bathroom
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but nobody was there. In the room he saw that
window was open. He peeped down. His room was on
the First Floor. Below he saw his wife Shashibala
had fallen down. He ran down. From hotel people,
he took the Receptionist and one more person and
went out and saw his wife lying on the ground with
her head bleeding. The hotel employees immediately
called the owner of the hotel and in short while
Police came. With the help of Police, he took his
wife to GHATI hospital, but she was declared as
dead.
(c) On registering Accidental Death report as
above, PW9
P.S.I. Salunke took up the enquiry. He
went to the spot and did panchanama. While he was
so enquiring in to the Accidental Death, PW11
P.S.I. Balaji Sontakke was directed to take over.
PW11
Balaji Sontakke also saw the spot and seized
three glasses from the spot having remnants of
coffee. He did the inquest panchanama and
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requested doctor to do the postmortem and also
provide nail clippings of the deceased. He
recorded some statements. In the evening of
18.12.1993, PW12
P.I. Digambar took over the
enquiry. He attached concerned documents from the
hotel. He obtained nail clippings of accused no.1.
The clothes of the deceased were collected.
Omprakash, the father of deceased Shashibala was
informed at Delhi. He came down to Aurangabad on
20.12.1993. The dead body was handed over to him
and Shashibala was cremated at Aurangabad.
F.I.R.(
d) Omprakash Sakhuja, father of deceased
then submitted F.I.R. Exhibit 56. The F.I.R., in
brief mentions that Omprakash was a businessman at
Laxminagar, Delhi and Shashibala was one of his
children. Shashibala was “Mangali” and he had put
in news paper that he wanted a “Mangali” boy.
Accused No.2 Govardhanlal had also put in news
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paper that he wanted “Mangali” girl for his
“Mangali” son. There was correspondence and the
complainant alongwith one Trilokchand Sharma had
gone to Modinagar, District Ghaziabad where
accused Nos. 1 and 2 were residing and marriage
came to be settled. F.I.R. gives details as to how
about three months before marriage ceremony “Roka”
and “Thaka” came to be performed. F.I.R. mentions
that accused No.2 Govardhanlal went to the
brotherinlaw
of complainant, namely Roshanlal
Sachdeva telling him that complainant Omprakash is
rich person and so Roshanlal should help getting
articles as per the list, which he had prepared.
In the list in addition to articles like Fridge
and T.V. Etc., there was demand for Car.
Complainant Omprakash and Roshanlal declined such
request for Car and accused No.2 Govardhanlal had
left. Complainant Omprakash then contacted Gulati,
soninlaw
of accused No.2 and informed him about
the demand and Gulati said that he will explain it
to the accused No.2 Govardhanlal. Thereafter,
sometimes accused no.1 Bhupendra was phonecalling
the daughter of Omprakash. Complainant and his
wife had gone to Modinagar and talked with accused
no.1 Bhupendra and he said that his father will
not ask anything about Car. Then there was
ceremony “Shagun” on 16.11.1993 in which colour
T.V., Fridge, Motorcycle, Washing Machine etc.,
were given as gifts. On 17.11.1993 there was ring
ceremony and marriage took place on 18.11.1993. In
the reception on 20.11.1993, the complainant had
given gift articles as per the custom. As per
programme on 21.11.1993, the couple were to come
to girl’s place in the morning but came only in
the evening at 6 p.m. and stayed till 7 p.m. At
that time, the complainant found his daughter to
be “Naraj” i.e. angry or unhappy. On that day, the
complainant had asked accused No.1 to take
remaining furniture but he said that his father
will take. He did not take the articles. At the
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matrimonial place, Shashibala was being given
trouble on the count that Car has not been given
and so they will not take the rest of the articles
and rather articles which have been given should
be taken back. Getting frustrated Shashibala had
phone called complainant Omprakash and told about
her trouble. Complainant and his wife had then
gone and explained to the inlaws
as to why they
were troubling their daughter. Accused no.2
repeated the demand and daughter of the
complainant was crying. At that time, accused No.2
stated that your daughter is “Badchalan” i.e. not
of good character. Complainant made his daughter
understand and came back. On 06.12.1993, accused
No.2 Govardhanlal informed the complainant about
his daughter going out of city for roaming and
they should come and meet but complainant did not
go as he was not happy. On 12.12.1993, Shashibala
had rung up the wife of complainant from
Aurangabad and told that Shashibala and her
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husband are staying in a hotel at Aurangabad and
with them so called deemed sister of her husband
was also staying. Suddenly, phone had got
disconnected.
On 18.12.1993, around 11.00 hours Gulati,
the soninlaw
of accused No.2 Govardhanlal
informed him that Shashibala had expired at
Aurangabad. Complainant went to Modinagar and the
fact was confirmed. Complainant started on
19.12.1993 from Delhi by Flight and reached at
Aurangabad on 20.12.1993. He expressed doubt
regarding the death of Shashibala. According to
him, she could not have committed suicide and may
have been forced to commit suicide by her husband.
Complainant claimed that because of demand of Car,
she was being illtreated. Thus the complaint was
filed.
Police registered the Crime at No.366/1993
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under Section 304B, 498A, 306 read with 34 of IPC
on 20.12.1993 at 21.15 hours. Accused Nos. 1 and 2
came to be arrested on the same day at 21.30
hours. In the course of investigation, Police
found that accused no.3 also was involved in the
crime and moved the Magistrate to include Section
114 of IPC as the offence committed by accused
no.3. Rest of the investigation was completed like
sending seized articles to Chemical Analyzer as
well as viscera and getting the report. Charge
sheet came to be filed on 22.07.1994 against
accused nos. 1 to 3.
3. Matter being Sessions triable, the same
was committed to the Court of Sessions. Sessions
Case No. 164/1994 came up for trial and on
04.01.1997 against accused Nos. 1 and 2 charge was
framed under Sections 498A, 304B, both read with
34 of IPC and against accused no.3 Rupindar under
Section 114 of IPC. Subsequently, additional
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charge was framed on 19th March, 1997 against the
accused Nos. 1 and 3 under Section 302 read with
34 of IPC. Accused persons claimed to be not
guilty. Prosecution brought on record the oral and
documentary evidence. Trial Court after
considering the evidence as well as defence and
written statements filed by accused Nos. 1 and 3
pronounced the judgment as mentioned above.
Some admitted documents4.
The judgment of trial Court (para 12) and
record shows that accused admitted the spot
panchanama (Exhibit 14); Seizure panchanama of
three glasses from the room concerned with
remnants of coffee at the bottom (Exhibit 15);
inquest panchanama (Exhibit 16); Seizure
panchanama of clothes of deceased (Exhibit 17);
provisional postmortem Report (Exhibit 18);
Postmortem Report (Exhibit 19); admission form of
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accused No.3 Rupindar at Samata Darshan Women’s
Hostel (Exhibit 20); extract of entry from
Register of Hotel “Shangrila” (Exhibit 21) showing
that accused no.1 had checked in on 08.12.1993
under his alias name “Toni”; extract of hotel
Shangrila (Exhibit 22) showing address given of
hostel of accused no.3 and customer’s signature as
that of accused no.3; yet another extract of hotel
(Exhibit 23) showing three persons as staying
there; as well as Cash Memo of hotel Dwarika of
Nashik (Exhibit 24).
Some admitted facts5.
The judgment of Trial Court (para 17)
referred to arguments and evidence on record and
observed that certain facts were not in dispute.
It is not disputed that the accused no.1 is son of
accused No.2 and that the marriage of accused No.1
took place with deceased Shashibala on 18.11.1993.
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At the time of incident in Room No.18 there were
only accused no.1, deceased Shashibala and accused
no.3. Shashibala died on 18.12.1993 in the early
morning is also not disputed.
Trial Court’s Findings
6. Trial Court had visited the spot and put
its report at Exhibit 105. At the time of
judgment, the Trial Court referred to the evidence
as well as its report and firstly considered the
fact if it could have been a case of accidental
fall. It noticed that the window opened in three
pieces with sliding glass and breadth of wall of
the window was 11” and window was at a height of
3’10” from the floor. The Court concluded that
probability of person accidentally falling from
such window while leaning does not arise. It was
observed that in the wall which was having 11”
width there was Aluminum bracket with three
sliding glasses fitted. The Aluminum bracket was
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in the center and it was not possible for a person
to sit there. Thus, the Court ruled out accident.
Then it considered whether Shashibala could have
committed suicide or was it homicidal death. The
Court considered the evidence of doctor where
there was opinion of scuffle before death and
found that evidence of doctor will have to be
accepted that the death was homicidal. It was
observed that the accidental death is ruled out
and there was no circumstance to show that there
could be case of suicide and the evidence was
showing that it was homicidal death. The Court
then considered as to who was responsible for the
homicidal death and for that purpose considered
certain circumstances. First circumstance
considered was the phone call made by the deceased
from Aurangabad that the accused no.1 is roaming
around with a girl and address given in the hotel
is fictitious and that she was not safe. It was
observed that there was contradiction in the
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deposition of the complainant that he received
such phone call as F.I.R. said that his wife had
received the phone call. The Court observed that
this evidence of complainant need not be read in
isolation and other evidence on record does show
that accused no.3 was admittedly residing in the
same room alongwith accused no.1 and was through
out with the couple and so information received by
the complainant and his wife was not false. Second
circumstance considered was that although the
couple had come for honeymoon the accused no.3 was
all the time with them and so there is doubt
regarding true intentions of the accused no.1. The
third circumstance considered was that the accused
had not given any plausible explanation as to how
Shashibala fell. Considering the evidence, the
trial Court held the accused Nos. 1 and 3 guilty
for causing homicidal death of Shashibala. The
Court rejected the defence that if motive is not
proved, the accused could not be held guilty. It
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was considered that the intention of accused
nos. 1 and 3 was to cause death of Shashibala and
so both of them were liable for murder. It has
been observed that the body was pushed and thrown
out of the window which led to death of Shashibala
and intention of accused nos. 1 and 3 was to cause
death. They were liable to be punished under
Section 302 r/w 34 of IPC.
As regards Section 498A of IPC, trial
Court considered the evidence of PW2
Omprakash
Sakhuja, father of deceased and PW3
Roshanlal
Sachdeva and found that although demand appears to
have been there, harassment or illtreatment on the
count of demand was not proved and hence it was
not established that there was harassment or
illtreatment for the demand and so accused no.2
could not be held guilty.
However, as regards accused no.1 Court
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observed that his act of keeping accused no.3 all
the time with them, although accused no.1 and his
wife had come for honeymoon amounted to cruelty
withing the meaning of Section 498A of IPC and so
accused no.1 was guilty under that provision. As
regards accused no.3, the Court held that as she
was not related to accused no.1 she could not be
held guilty of offence under Section 498A of IPC
but she was abettor for offence. As regards
Section 304 B of the IPC, Court observed that in
the present matter admittedly death took place
within seven years and it was not in normal
circumstance. It was proved that there was cruelty
within the meaning of Section 498A of IPC but
ingredients of Section 304B of IPC that cruelty
has to be in connection with demand of dowry is
not proved and so offence under Section 304B of
IPC was not established. The Court referred to
Section 107 of IPC regarding abetment and found
accused no.3 guilty under Section 114 of IPC for
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abetment as regards offence under section 498A of
IPC.
The Appeals filed
7. In appeal filed by accused no.1 he has
challenged his conviction claiming that omissions
and contradictions have not been considered;
conviction is based only on assumptions and
conjectures; there is no direct evidence against
the appellant – accused; there was no motive; fact
that relation of accused Nos. 1 and 3 was of
brother and sister, has not been considered; the
couple alongwith accused No.3 and other friends
were going around happily, has not been
considered; those persons who enjoyed alongwith
accused Nos. 1 and 3 as well as other copassengers
residing in the hotel have not been
examined; although there was no record of illicit
relations between the accused Nos. 1 and 3, the
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conviction is based on the ground of presence of
accused no.3, and, that the evidence of Dr.
Jinturkar has not been properly appreciated. The
evidence on record has not been properly
appreciated. The investigation was faulty. No
incriminating material was found in the Chemical
Analyzer’s report against this accused. Appellant
Accused
No.1 wants conviction to be set aside.
8. Appellant Accused
no.3 in her appeal
has also raised similar grounds. She claimed that
in the facts and circumstances of the case, it
could not be suggested that there was any illicit
intimacy between the accused no.1 and her and that
the deceased either suspected and/or objected or
disapproved the same. Her mere presence in the
room at the spot of incident cannot be treated as
incriminating so as to convict her. When
Shashibala had fallen to the ground even this
accused followed accused no.1 to the ground floor
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and to the spot where the body was lying. The
conduct of both accused is material. Best evidence
available has been suppressed by the prosecution.
There was no evidence of scuffle or struggle
between the couple on the fateful night. The
evidence of doctor was not properly appreciated.
She also wants that the sentence and conviction
should be set aside.
Arguments9.
We have heard learned counsel for the
accused and A.P.P. for State. It has been argued
for the accused that there was no motive proved in
the present matter. The case is based on
circumstantial evidence. The case of prosecution
that there was illtreatment for demands has been
disbelieved by the trial Court. The victim was
sitting on the window and fell down accidentally.
If accused no.1 wanted to kill his wife, he would
not have unnecessarily kept accused no.3 present.
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There was no evidence of cries, beating or
shouting though Receptionist and room boy were
there below and in the neighbouring rooms, there
were other passengers. The argument is that the
evidence needs to be properly appreciated and that
the evidence shows that it is a case of accidental
fall and death. Trial Court relied on conjectures
and presence of accused no.3 could not be faulted
with as it is matter of choice of the couple if
they wanted or not presence of third person.
Cruelty is not proved.
10. According to learned A.P.P. there is
evidence to show that the marriage had sour taste
due to demand of Car. There was evidence of
subsequent conduct also which showed that there
was problem regarding demands made. If the couple
had come down for honeymoon, there was no reason
for accused no.3 to all the time be with the
couple and even sleep with them at night. Learned
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A.P.P. wanted to compare the A.D. Report Exhibit
89 given by accused no.1 with his statement
Exhibit 106 to claim that although accused have a
right to keep silent, in the set of facts like the
present one, where somethings are exclusively in
their knowledge, they have duty to explain.
According to learned A.P.P., the deceased was well
built and gap of window was hardly of one and a
half feet and it was unlikely that person like
Shashibala would accidentally fall from such
window. According to learned A.P.P. it was
uncomfortable to sit as there were four channels
at the base and so it could not be a case of
accident. The learned A.P.P. referred to the oral
evidence as well as medical evidence to claim that
offence has been duly established. According to
her, presence of other girl like accused no.3 in
honeymoon amounts to cruelty. She wants the
judgment of the trial Court to be maintained.
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Spot
11. In the present matter before appreciating
the medical evidence, it is necessary to keep in
view details of the spot.
(a) Spot panchanama was admitted by the
defence at Exhibit 14. There is also evidence of
PW9
P.S.I. Arun Salunke who did the spot
panchanama as well as PW11
P.S.I. Balaji Sontakke
who had visited the spot and from spot seized
three glasses having remnants of coffee. (Written
statement under Section 233(2) of Cr.P.C. of
accused No.1 Exhibit 106 has claimed that in the
night of 17th December at about 10 `O’ clock they
had coffee in their room.) There is also report of
spot inspection done by trial Court which is at
Exhibit 105.
(b) Spot panchanama Exhibit 14 appears to
have been recorded on 18.12.1993 between 8.10 a.m.
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to 8.50 a.m. The hotel Shangrila is opposite
Central Bus stand. Room No. 18 was on first floor.
The hotel is facing the Bus stand towards west. To
the south of the hotel, there is some Green
Palace. To the north and east, there are open
spaces while road was to the west. The room had
window facing north. Staircase from the floor
concerned came down to a door opening towards
south. Panchanama Exhibit 15 shows that on both
sides of the room there were other rooms on east
and west; and that “Varandah” is to the south from
which there were stairs to come down.
(c) Thus to the west of hotel there is a road
and then Bus stand and to the south there was some
structure and the northern and eastern sides of
hotel had open space. Although, the hotel as per
panchanama has Bus stand infront (i.e. to the
west), the entry appears to be from south.
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Cross – examination of PW7
Vijaysingh
Rajput shows that from reception one had to go out
towards North for 25’ to reach the spot where body
of deceased was lying.
(d) Spot panchanama shows that room concerned
was of dimension of 15’ X 12’ and had attached
toilet bathroom of 5’ X 7’. With the wall of the
bathroom there was wooden cot of 7’ X 6’ with two
mattresses covered by two white bed sheets. On the
cot there were three blankets lying disorderly and
two pillows. There was one blanket kept folded
belonging to accused no.1. Panchanama noted other
articles in the room alongwith three glasses
having coffee remnants. There was little coffee at
the bottom of glasses. Note of Suitcases, articles
etc. of accused no.1 appears to have been taken.
In the northeast
corner at a height of 5’2” in
the wall with the help of angle for portable T.V.
wooden triangle plank had been fitted and a T.V.
29
was there. In the northern wall there was window
of 7’ X 4’ with sliding windows. The eastern side
plank had been slided towards the west and there
was space opening towards outside from the window
of 1’6” X 3’9” as the gap. In front of this gap
wooden plank of T.V. stand had come to the extent
of 1’. Open space to the north of the hotel was
visible from the window. From window ground was
28’7” below. At 6’ from the window towards the
lower side there was “Chajja” (Lintel) of window
of ground floor. In the room, no incriminating
articles were found.
Spot panchanama shows that on the ground
the compound of the hotel towards northern side
was examined where Shashibala had fallen and died.
There was big pool of blood on the spot and upper
layer of blood had dried. Pool of blood was at a
distance of 1½’ from the wall of the hotel and
wire fencing was 5’ away. On the angle of the wire
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also there was blood. Evidence of PW7
Vijaysingh
Rajput shows that barbed wire fencing was of the
length of 50 to 60 feet.
(e) The report of spot inspection at Exhibit
105 further shows that the window frame had
sliding glass window of three pieces having total
length of 6’. Height of the window from base of
room was 3’10”. The width of wall was about 11”
with sliding glass exactly in the center. Below
the window the Court noticed that there was
“Chajja” of about 1½’ width over the window of
ground floor room, which room was below the room
no.18. It was noted that “Chajja” was not flat but
slightly curved and smooth. The Court went down to
the spot where the deceased had fallen. The
compound of this hotel was made of barbed wire,
which was at a distance of 6’10” from the building
wall. The barbed wires were connected with iron
angles as pillars, which were embedded in the
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ground. This spot inspection was done by the
learned Trial Court on 18.10.1997.
The judgment of the Trial Court (para 18)
gives further insight of the spot. It has been
observed that width of the wall in which the
window was fixed was just 11” and was fixed
exactly in the center with three sliding glasses.
Medical Evidence
12. Keeping the spot as above in view, from
where according to the accused, Shashibala had
accidentally fall and according to the prosecution
she was murdered by accused nos. 1 and 3 being
responsible for the fall, it would be appropriate
to first refer to the medical evidence. Although,
the inquest panchanama and postmortem report were
admitted by the accused, the prosecution examined
PW4
Dr. Anil Jinturkar. His evidence is that he
had conducted postmortem on 18.12.1993 between
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5.20 p.m. to 6.20 p.m. and Dr. R.N. Kagne had
assisted him. According to him, Shashibala was
well built and well nourished and her height was
5’ 4½”. Rigor mortis was present and generalised.
The scalp heirs were dense, black coloured combed
and neatly tied at back but disorderly at the
front and side portions. The heir was soiled with
reddish blood and dried blood was seen on face at
various places. Eyes were closed and there was
evidence of black eye on either side. Mouth was
partially open and tongue protruded with it’s tip
firmly held in between teeth of upper and lower
jaw. Blood was seen oozing from nostrils. Lips
were bluish. Part of evidence of doctor regarding
examination carried out by him needs to be
reproduced. It reads :“
2. On external examination I found
following injuries.
Injury No. 1: An obliquely placed reddish
contusion over right frontal region 2” x 1” size.
Injury No.2: A transverly placed reddish
contusion over forehead centrally, 2½” X 1”
Injury No.3: An oblique reddish contusion
over left frontal region 1½” X 1”.
Injury No.4 : A triangular contused lacerated
wound over frontoparietal region almost centrally
1/2” above injury no.2, 1” X 1” X 1/2” (sides of
the triangle) X bone deep, fracture of underlying
bones felt and seen, oozing of blood seen.
Injury No.5: An obliquely placed contused
lacerated wound at ala of nose right side of size
1/2” 2½”.
Injury No.6: An oval reddish contusion at
middle 1/3rd of nose, interior, 1/2” X 1/2”,
fractures of nasal bones felt beneath.
Injury No.7: Multiple linear reddish
abrasions i.e. scratches, obliquely placed at the
left side of neck tapering at lower portion, these
were 2” in length.
Injury No.8: Three crescentic abrasions over
left side of neck, reddish of size 1/2” each,
located one above other, free ends directed
laterally and lower down towards left.
Injury No.9: Two oblique crescentic abrasions
over the lower portion of left chin reddish 1/4”
each, located side by side with free ends directed
medially lower down.
Injury No.10: Two linear reddish scratches
1½” in length at left side of neck tapering
medially.
Injury No. 11: Multiple bluish red contusions
over anterolateral
aspect of left shoulder.
Injury No. 12: Multiple bluish red contusions
at anterolateral
aspect of left arm at upper
1/3rd.
Injury No.13: Multiple oval bluish red
contusions over left mammary region varying between
1” x 1/2” and 3/4” x 1/2” size.
Injury No.14: An oval bluish red contusion
below left nipple, 1½” x 1” size.
Injury No.15: Multiple reddish abrasions at
posterolateral
aspect of right elbow.
Injury No.16: Three obliquely placed linear
reddish scratches at right forearm, middle 1/3rd,
2” in length each, tapering medially.
Injury No.17: Multiple irregular reddish
scratches at right wrist, these were 1½” x 2” in
length and variegated in direction.
Injury No.18: A rectangular contused
lacerated wound at the medial aspect of left thigh
middle 1/3rd portion exposing the underlying
muscles and tissues, measuring 2½” x 2” x muscle
deep, clotted blood noted within the wound.
Injury No.19 : Multiple irregular reddish
abrasions over anterolateral
aspect of right knee.
Injury No.20: Oval bluish red contusion over
right leg middle 1/3rd area 1½” x 1” size.
Injury No.21: An irregular reddish abrasion
over the dorsum of right foot, reddish colour.
I also noticed depressed communated fracture
of skull bones on both sides, fracture dislocation
of C1,
C2
and C3
vertebrae felt and seen. All
these injuries are antemortem in nature.
On internal examination, on examination of
head I noticed reddish subgaleal haemorrhage at
both frontal and parietal region. I also noticed
depressed communated fracture of both frontal
bones, parietal bones with minimal infiltration at
fractured bony edges. There was also evidence of
fracture of floora of both anterior craneal fossi
with evidence of minimal infiltration of blood.
On examination of meninges I found that they
were torned at both frontal regions irregularly.
Brain showed irregular laceration at frontal lobes
on either side and evidence of intracranial
haemorrhages. Pons and medulla also showed
laceration and haemorrhage.
On examination of Thorax I found that it was
contused irregularly even upto subcutaneous tissues
and muscles on left mammary region. Pleura was
congested. Both lungs were pale in appearance.
Pericardium was contused at places in patchy
manner. Heart contracted, both the sides almost
empty. An obliquely placed oval reddish pinkish
contusion seen at right ventricle size 1” x 1/2”,
subendocardial haemorrhage seen in Rt. Ventricular
cavity, coronaries did not reveal any abnormality.
On examination of Abdomen I found that the
abdominal walls was contused irregularly at various
sites. The stomach was distended and contains 25
ml. of thick digested undistinguishable food mixed
with liquid without any abnormal smell, mucosa was
hyperemic.
Abdominal organs i.e. liver, spleen, kidney,
pancreas were pale in appearance.
Uterus was normal.
On examination of spine and spinal cord on
dissection I found that there was fracture of
odontoid process and ring of atlas vertebrae, it
was oblique fracture, fractured dislocation seen in
between C1
and C2
as well as C2
and C3
vertebrae, minimal infiltration observed at the
fractured sites. Small muscles of the neck were
haemorrhagic, vertebral arteries were distorted,
laceration and haemorrhages were noticed within the
corresponding spinal cord segments.
I also preserved the routine viscera so also
and nail clipping of fingers and blood samples of
the victim.”
For appreciation it would be appropriate
to refer to relevant injuries recorded as part of
internal examination in column 20 of the
postmortem report which are at Column No. 20(a),
(f) and (g). They are as under :20.
Thorax:(
a) Walls, ribs,
cartilages.
: Contused irregularly even
up to subcutaneous tissue
and muscles on left mammary
region.
(f) Pericardium : Contused at places in
patchy manner.
(g) Heart with
weight
: Heart contracted, both the
sides almost empty. An
obliquely placed over
reddish pinkish contusion
seen at right ventricle
size 1” X 1/2”.
Subendocarial haemerrhage
seen in Rt. Ventricular
cavity, coronaries did not
reveal any abnormality.
Opinion as to the cause of death in Postmortem
Report mentioned is ::::
Opinion as to the
cause, probable
cause of death.
: Laceration of brain and
spinal cord due to
fractures of skull bones
and cervical vertebrae with
contusion of heart.
Associated
findings
: Multiple contusions and
abrasions on body. Viscera
preserved for Chemical
Analysis.
Doctor gave provisional postmortem report
Exhibit 18 and postmortem report has been proved
at Exhibit 19. According to doctor Police made
queries from him regarding associate findings and
and he had given the reply Exhibit 75.
In reply Exhibit 75, doctor observed as
follows as regards the associate findings :“
1. The injuries mentioned in Associated findings
are contusions and abrasions. The abrasions are
mostly scratches, multiple in number located at
various body area and variegated as regards their
direction hence unlikely to be self inflicted. The
contusions were also multiple in number located are
left supermamary and mammary region as well as left
shoulder & upper 1/3rd of left arm. Therefore it
would be worthwhile to infer that this injuries are
indicative of scuffle.
2. Abrasions i.e. the scraches appear to have
been caused by the finger nails & the contusions by
hard & blunt object or impact.
3. All the injuries mentioned in associated
findings are antemortem innature and they are fresh
(i.e. recent just before death).”
Evidence of doctor is that this is case
of homicidal death looking to the injuries on the
left side of chest and internal injuries which
were to the heart. According to him, even
contusion of heart could also cause immediate
death because of distortion in heart function.
Not a case of accident
13. In record there are photographs proved as
those of accused No.1 and deceased Shashibala. The
photographs were put up to PW2
and he admitted
seven photographs at Exhibit 58 to 64 as depicting
the accused No.1 and his wife i.e. deceased
Shashibala. Another photograph was admitted by
PW2
at Exhibit 67 to be of deceased Shashibala.
If the evidence of PW4
Dr. Jinturkar is kept in
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view that the dead body was of “well built and
well nourished” young female and these photographs
are examined, (and particulars of the spot are
visualized that the gap in the window after
sliding planks to one side was remaining only of
1½’ X 3’9”) it does not appear possible that such
a healthy person, even if she was to sit in that
uncomfortable gap of 1½’ would accidentally fall
down. Even if the person was to sit in such window
and for any reason was to lose balance, natural
conduct would be to try to hold on to anything
which would help to prevent the fall. If
Shashibala was sitting in such window and if
accidentally was to lose balance, she would have
caught other part of the window or portions of
frame of sliding window. The spot panchanama did
not reveal any such marks on the spot to show that
person falling tried to save herself but could
not. In such situation, in natural course the
person would shriek, shout, call out, spread out
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hands while falling or whatever, but it would not
be the mere `thud’ which accused No.1 claims to
have heard.
14. It is apparent that the window concerned
had in the center planks for sliding glass, it is
unlikely that any person would sit on such
uncomfortable base for long and that too in an
extremely cold night and at such odd hours. Thus,
Accidental Death Report filed by accused No.1
Exhibit 89 and the defence that Shashibala must
have accidentally fallen from the window does not
at all appeal to be a possibility. If accused no.1
had called Shashibala from “Varandah” as it was
very cold, it does not appeal that he would let
the window be kept open. We do not find the
argument of defence appealing that Shashibala was
sitting in the window and accidentally may have
fallen down.
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The spot shows that 6’ below the window
there was “Chajja” protruding to the extent of
1½’. If it was an accidental fall, “Chajja” would
have been an obstruction to the fall and there
would have been some marks on the “Chajja”. The
spot was shown by Accused No.1. The spot
panchanama does not show that there were any marks
of anybody falling, striking or, on way down
rubbing against the “Chajja”. Thus the defence
that it was an accidental fall is rejected.
Nor a case of suicide
15. It is not the case of prosecution nor of
the defence that Shashibala may have committed
suicide. There is no material to suggest that
mental condition of Shashibala was such that she
may have committed suicide. The evidence on record
also nowhere suggests that it was suicide. In the
examinationinchief
of Dr. Jinturkar (PW4)
it
was suggested to him that a person likely to
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commit suicide would stand on both feet and then
jump. Doctor replied that generally it is true.
Further questions were asked and doctor deposed
that if a person was to jump, there would be
injuries to the lower extremity and hips, but
there was no fracture to the feet, legs, hips or
pelvic or to the lower vertebra of fumure bone.
This evidence of doctor brought on record by the
prosecution to rule out suicide, does not appear
to have been challenged in the cross examination.
If a person was to sit in the window, as found in
the present matter and allow herself to fall out
head first, still “Chajja” in the present matter
must come as an obstruction. This needs to be
stated as spot itself shows that pool of blood on
the spot below was hardly at a distance of 2½’
from the wall of hotel. If from this 2½’, 1½’
broad “Chajja” is minus, the fall is surprisingly
close to the building. Looking to present height,
if a person was to jump or allow herself to fall
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head first it is unlikely that the person would
fall so close to the building on the ground. For
such reasons, possibility of suicide is also ruled
out.
Culpable homicide
16. Now it is necessary to go back to the
spot and the medical evidence to consider if the
prosecution has proved that Shashibala suffered
culpable homicide. The evidence of doctor as
mentioned above was challenged in the cross
examination. Accused to some extent were even
unfair in suggesting bias and prejudice to the
doctor who was just doing his job. There was no
reason for doctor to be for the deceased or
against the accused persons. Infact he had already
finished the postmortem on 18.12.1993 itself and
given opinion and the father of the deceased
reached Aurangabad only on 20.12.1993. We have
absolutely no reason to suspect the bonafides of
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this doctor, who was working as Associate
Professor, Forensic Medicine Department,
Government Medical College.
The evidence of doctor shows injuries to
the head which clearly were due to fall. The
medical evidence clearly shows that the head
injuries suffered in the fall were sufficient in
ordinary course of nature to cause death. The
evidence of doctor is that the external injuries
Nos. 13 and 14 correspond to internal injury no.
20 which have been recorded under column 20
“Thorax” at sub column (a), (f) and (g). The
evidence is that Shashibala had contusions over
her left mammary region and there was oval bluish
red contusion below left nipple. According to
doctor, this could have been possible by fists or
blows or due to hard impact. The evidence of
doctor shows that by single fall all the injuries
as found on the person of Shashibala were not
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likely unless some hindrance in the path comes and
the body deviates while falling. In the cross
examination of doctor, it was asked and he
mentioned that injury nos.13 and 14 of column
no.17 and injury mentioned in column no.20(a) are
possible by fall “if” the body comes in contact
with wide surface, rough and uneven having oval
projections. Doctor was then asked whether a lady
standing with the elbow near a window, if she
slips and falls down and while falling down her
body comes in contact with projected part of wall
and then she falls, whether in such circumstances
such injuries are possible. The doctor mentioned
that it is remotely possible, adding that, in such
circumstances, there should have been evidence of
sliding abrasions on the chest and stomach in
addition to other injuries. Looking to such
evidence of doctor, the accused cannot derive any
benefit as neither the body nor the “Chajja”
appear to have had such sliding marks. We have
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already mentioned that the record does not show
that there were any marks on the “Chajja” below
the window. Again if the person was to strike
against “Chajja” or scrape against “Chajja” which
was 1½’ broad, the person would bounce to more
distance and it is unlikely that the person would
fall so close on the ground as is appearing in the
present matter. The doctor was categorical that
injury nos. 13 and 14 are not abrasions and it is
not possible that all injuries could be caused if
a person falls from window. Doctor insisted that
especially injury Nos. 8, 9, 13 and 14 are not
possible. The evidence is that there was localised
finger nail injuries which could be seen in column
no.17 as injury Nos. 7 and 8.
17. What appears from the evidence of doctor
is that in addition to the injuries which
Shashibala suffered due to fall, there were other
injuries, which could not be associated with the
single fall. The doctor is categorical that
looking to the injuries on the left side of chest
and internal injuries to the heart it was
homicidal death. The doctor has deposed that
contusion of heart could cause immediate death
because of distortion in heart function. Thus, the
injuries at Sr. Nos. 13 and 14 raise questions as
to what was the condition of Shashibala when she
came down two floors from the window. As the
doctor has deposed that contusion of heart could
also cause immediate death because of distortion
in heart function, she may or may not have been in
a condition to help herself when she came down
from the window to the ground, in which fall she
suffered injuries to her head and also had other
injuries not associated to fall as recorded by the
doctor. It is apparent that Shashibala had
contusion of heart which could have been caused by
even fist blows and she also suffered injuries in
the fall. Evidence of doctor is that Shashibala
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had injuries indicating scuffle. We accept the
evidence of doctor. Looking to medical and other
evidence, we find that Shashibala suffered
culpable homicide.
Was it murder ?
18. Now the question is whether appellants –
accused Nos. 1 and 3 are responsible for culpable
homicide of Shashibala.
19. It has been argued by the learned counsel
for the accused that no motive has been proved for
the accused persons to murder Shashibala. Reliance
is placed on the case of “State of U.P. V/s Babu
Ram” reported in AIR 2000 S.C. 1735. In para no.11
it was observed as follows :
“11. We are unable to concur with the legal
proposition adumbrated in the impugned judgment
that motive may not be very much material in
cases depending on direct evidence whereas motive
is material only when the case depends upon
circumstantial evidence. There is no legal
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warrant for making such a hiatus in criminal
cases as for the motive for committing the crime.
Motive is a relevant factor in all criminal cases
whether based on the testimony of eyewitnesses
or circumstantial evidence. The question in this
regard is whether a prosecution must fail because
it failed to prove the motive or even whether
inability to prove motive would weaken the
prosecution to any perceptible limit. No doubt,
if the prosecution proves the existence of a
motive it would be well and good for it,
particularly in a case depending on
circumstantial evidence, for, such motive could
then be counted as one of the circumstances.
However, it cannot be forgotten that it is
generally a difficult area for any prosecution to
bring on record what was in the mind of the
respondent. Even if the Investigating Officer
would have succeeded in knowing it through
interrogations that cannot be put in evidence by
them due to the ban imposed by law.”
Keeping above in view facts of present
matter need to be considered. There is evidence of
PW2
and PW3
that when marriage was settled
between the accused no.1 and Shashibala, demand
was raised by accused no.2 for articles one of
which was providing a Car. The evidence of PW2
and PW3
shows that the girl side was not ready to
give car. There is evidence of PW2
that
subsequent to the marriage when Shashibala had
come, she seemed to be unhappy. The evidence was
discussed by learned Trial Court and it found that
although the evidence of PW2
and PW3
shows that
there was demand for articles but there was no
sufficient evidence to prove that demand was
coupled with any acts which were in the nature of
harassment and illtreatment for nonfulfillment
of
demands. It appears from the evidence that
relatives intervened and the demand for Car was
not insisted upon and marriage took place. The
cross examination of PW2
shows that even on the
day of marriage, the marriage did not pass of
peacefully and quarrel had taken place as accused
no.2 was complaining regarding decoration and
arrangements. The cross – examination also brought
on record that there was displeasure at the time
of marriage ceremony. F.I.R. Exhibit 56 also
claims that due to such demands complainant was
doubting death of his daughter.
20. Another glaring circumstance is the fact
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that there is ample evidence on record clearly
showing, and which is not disputed that right from
the time of 08.12.1993 when the couple reached
Manmad till the incident, the accused No.3 was
continuously with the couple. The statement of
this accused under Section 313 of Criminal
Procedure Code, 1973 and the evidence shows that
on 08.12.1993 although the accused no.3 Rupindar
was staying in Samta Darshan Womens Hostel,
Aurangabad, she went to the city of Manmad to
receive the couple and bring them to Aurangabad.
They all then started staying at hotel Shangrila.
From Aurangabad three of them visited Shirdi and
Nashik and came back to Aurangabad. Of course, the
accused claimed that at Aurangabad there were
other friends with whom they went around to Elora,
Daulatabad and Ajanta on two wheelers. However,
the evidence of such other friends is not on
record. The evidence of PW1
Akbar Ali, the owner
of the hotel and PW7
Vijaysingh, the Receptionist
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shows that the accused with Shashibala were
staying at hotel Shangrila. Three of them appeared
to have been staying in the hotel in one room
which had a double bed. Although in written
statement Exhibit 106 and 107, the accused have
tried to show that couple slept on the bed and
accused no.3 slept on the floor taking blanket and
pillow, the accidental death report Exhibit 89
filed by accused no.1 himself had mentioned that
in the night concerned, all the three had slept on
the same bed. The spot panchanama Exhibit 14 shows
that at the concerned time in the room on the bed
there were only two mattresses, two bed sheets on
the bed and three blankets in disorderly manner
and only two pillows. There was yet another
personal blanket kept neatly folded in the room.
Thus, although there were three persons, there
were only two mattresses and two pillows. This,
when the case of prosecution shows that accused
no.1 had come down along with Shashibala to
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Aurangabad for honeymoon. The learned A.P.P. is
rightly raising questions as to the intentions of
accused Nos. 1 and 3.
21. Learned A.P.P. has submitted that such
conduct was unusual. Even if the couple had come
for honeymoon and accused No.3 was a local
contact, it was no reason that she should all the
time have been there, even in the nights when
couple had come for honeymoon. The learned
Advocate for the accused have tried to defend the
same saying that it is personal choice and accused
No.3 was deemed sister of accused no.1 and so
there was nothing unusual. We do not agree with
such proposition. This is quite unusual and in the
circumstances of the present matter, where
Shashibala appears to have suffered culpable
homicide, we find this conduct suspicious. We find
that the acts amounted to cruelty to Shashibala
who was bride not even one month old being put to
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treatment of having third person young girl on the
same bed.
22. PW2
Omprakash deposed (in para 8) that
after some days of accused no.1 and his daughter
going out for enjoyment (he was referring to
honeymoon) to Aurangabad, he received phone call
from his daughter from Aurangabad and she told him
that there is one more girl roaming alongwith them
and accused no.1 is saying, she is his sister but
she is not his sister. The complainant claimed
that his daughter told him that she is being left
alone and accused nos. 1 and 3 are roaming, and
that, she was suspecting the relations between
accused no. 1, and that girl (i.e. accused no.3).
Complainant says that his daughter informed him
that many boys visit accused no.1, and that, the
address given in the hotel is fictitious and she
was suspecting something, and that, she was not
safe.
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In cross examination of the complainant,
he stated that he had received only one phone call
and no other from his daughter from Aurangabad. He
denied that phone call was received by his wife
and claimed that it was received by him.
Complainant was confronted with his F.I.R. Exhibit
56 where it was mentioned that on 12.12.1993 his
daughter Shashibala had called up from Aurangabad
was informed to him by his wife, and that, it was
stated that Shashibala and her husband are staying
in hotel at Aurangabad and with them a person
deemed to be sister of the husband was also
staying and before further conversation, phone got
cut.
Thus it has been argued by the learned
counsel for the accused that F.I.R. says that
complainant got the information through his wife
while in the evidence he claimed that he has
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himself talked with daughter and so there are
contradictions. It is correct that there is
difference of version as to whether the
complainant himself had talked with his daughter
or his wife told about the same. But this is not
material as fact remains that the accused no.3 was
indeed staying with couple at the hotel which is
not disputed and it is also a fact that in records
of Hotel Shangrila when the couple checked in, the
accused no.3 had given her own address of the
hostel at Aurangabad as a permanent address of
accused no.1. This can be seen from Exhibit 22.
Entry from the register of hotel Exhibit 23 shows
that when the couple and accused no.3 rechecked in
the same hotel on 13.12.1993 number of persons
shown as residing are “3”. Thus, we do not attach
much value to the contradictions. Fact remains
that after reaching Aurangabad on 20.12.1993, the
complainant Ompraksh filed the F.I.R. casting
doubts on the relationship between accused nos. 1
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and 3. Although, the complainant admitted in his
cross examination that the accused no.3 had
attended the marriage of the couple, that does not
help the accused. Rather it indicates that accused
no.3 who was studying at Aurangabad made it a
point to even attend the marriage and on the
couple coming to Aurangabad, she travelled about
117 Kms. to Manmad to receive the couple. This is
unusual for a young girl especially in 1994. In
any case, it indicates her excitement. Naturally,
her interest was in accused no.1. She must be
hardly knowing the victim at that time as the
settled marriage was not even one month old. Thus,
on record we have evidence of complainant, father
of the victim, expressing doubts regarding the
relationship of accused Nos. 1 and 3. We find the
doubts not to be misplaced. Even if accused no.1
was intimately knowing accused no.3 and she had
gone and received the couple and taken care of
them while they were at Aurangabad, that would
have been understandable provided it was not the
case that she went on to also start residing with
the couple even in the nights when they were at
Aurangabad although she could have gone to her own
hostel. In our view, even a real sister would give
natural privacy to the couple when they have been
just married and are on honeymoon and would not
hang on in the nights to stay in such small room,
where they do not have even three mattresses or
three pillows for them. It is not a case that on a
given evening it became late one night and the
couple let the deemed sister stay. It is not
understandable that deemed sister checked in with
the couple who had come for honeymoon. The
argument that it had become late when the couple
and accused no.3 returned from outing in the
evening of 17.12.1993 and so accused no.3 could
not have gone back to the hostel has no substance.
Rather in such situation, it would become
responsibility of the couple to reach accused no.3
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to her hostel which was working womens hostel and
time would not have been a constraint. If accused
no.1 could go out for a walk till 12.45 a.m. in
the night as mentioned in the Accidental Death
Report Exhibit 89 filed by him, there is no reason
why they could not have reached the accused no.3
to her hostel. The conduct of accused nos. 1 and 3
in over all circumstances proved on record shows
serious doubts regarding their intentions interse
and against the victim.
23. Reference is made to the above evidence
to record that everything was not honkydory
as is
tried to be said by the accused when they claimed
that there was absolutely no motive. The motive
can lie deep in the heart and mind of a person and
external conduct before the offence taking place
may or may not reveal the same. In the
circumstances of the matter, factor of Accused
No.1 having anger due to developments at the time
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of marriage in mind cannot be ruled out. His
unusual proximity with accused no.3 constitutes
another factor which shows that there was motive
to do away with Shashibala.
24. In the night concerned, in the room there
were only three persons namely accused no.1, his
wife Shashibala and his deemed sister, accused
no.3. It appears that the death of Shashibala came
to light, around 4 a.m. of 18.12.1993. The
evidence is that PW7
Vijaysingh Rajput, the
Receptionist and PW8
Chhagan Rokade, the room boy
were on duty at the concerned time. The evidence
of these witnesses shows that Vijaysingh was
present on the counter and room boy had just gone
to the second floor and put on the boiler and came
back and sat on the counter. Their evidence shows
that around that time when they were talking, in
about 1020
minutes accused no.1 Bhupendra came
down from 2nd floor and asked to open the main
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door. PW7
Vijaysingh asked him where he was
going. He said that his luggage has fallen down.
Room Boy Chhagan opened the door and accused no.1
went outside towards northern side of compound.
Out of suspicion PW7
and PW8
appear to have
followed accused no.1 and found Shashibala lying
there. The evidence of these witnesses is that
accused Bhupendra was frightened and said that his
wife had fallen down and they should help him.
According to PW7
Vijaysingh legs of lady
(Shashibala) were entangled on the compound fence
wire while her head was near the wall. She was
lying on the back and her face was towards the
sky. She was already dead. Evidence of these
witnesses shows that the second girl Rupindar
(accused No.3) had also come down. These witnesses
have stated that in that room the deceased and
accused nos. 1 and 3 were the only three persons,
who were residing. PW8
Chhagan has deposed that
in the room no.18, three persons were residing,
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two girls and one boy. The evidence is not
challenged in the cross examination.
25. Referring to the evidence of PW7
and
PW8,
the learned counsel for the accused argued
that the evidence of these witnesses does not show
that there were any shouts or any scuffle or sound
of quarrel was there. The argument is that no
passenger from the neighbouring rooms has also
been examined. However, the argument deserves to
be discarded. 4 a.m. is a prime time of sleep.
Again, it was a cold night when closing doors and
windows to keep out cold is natural. In ordinary
course, people would be in deep sleep and may not
get disturbed unless there is big banging or
shouting in quarrel. We have discussed evidence
showing that Shashibala had injuries which were
possible even by fist blows and her death was
homicidal. If by fist blow contusion to heart was
caused it may not have been necessarily after some
loud quarrel. Although, PW7
and PW8
were on
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Reception, fact remains that room no.18 was on
the first floor with window opening towards north
while Reception was on the ground floor with main
door opening to the south. Even that door was
closed. From the Reception to reach the spot
towards North distance was over 25’ as stated by
PW7
Vijaysingh. In such situation, activity
inside the room may not attract attention of
others. Although, PW8
had gone to start boiler
situated on the second floor (see cross
examination of witness PW7
Vijaysingh), it
appears that there was time gap between accused
no. 8 coming back and sitting on the Reception and
the incident which took place after 1020
minutes.
Even if PW8
may not have heard any sound of
quarrel, that would not be material. Even
otherwise, what happened inside the room and how,
is exclusively knowledge of accused nos. 1 and 3.
26. The spot inspection Report (Exhibit 105)
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of the Additional Sessions Judge shows that on the
ground, the compound having barbed wire was at a
distance of 6’10”. The spot panchanama Exhibit 14
shows pool of blood was at a distance of 2½’, and
wire fencing was at a distance of 5’. We have
discussed the evidence of PW7
Vijaysingh which
shows that Shashibala was lying on such spot with
head near the wall and legs entangled with the
compound fence wire, and that, she was lying on
the back facing the sky. Over and above, such spot
on the ground, there was “Chajja” of the window of
ground floor, protruding 1½’. As discussed, the
Chajja did not have any sliding marks to show that
anybody had rubbed against it, otherwise same
would have reflected in the spot panchanama.
Accused No.1, who had shown the spot as per the
spot panchanama Exhibit 14, did not point out any
such thing. Keeping all this in view, what appears
is that Shashibala came down from window of first
floor to the ground landing almost in the middle
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portion of the compound which was 6’10” broad at
the base. There were no injuries to lower side and
she landed on her head, and legs got thrown
towards the barbed wire and ultimately the body
rested on its back. The certificate of PW4
Dr. Jinturkar, Exhibit 75 and his evidence shows
that the injuries mentioned in the associated
findings were antemortem in nature and they were
fresh i.e. recent just before death. We have
discussed that Shashibala may not have been in a
position to help herself when she was coming down
from the window of room no.18 due to injuries
noted by doctor as associated findings. At the
relevant time, in the room other than the victim,
the only persons were accused nos. 1 and 3.
Looking to the circumstances proved on record, the
accused nos. 1 and 3 must be held responsible for
culpable homicide of Shashibala. It is clearly
established that she was hit on her chest and
suffered associated injuries which were fresh and
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then was sent down from the window which shows
clear intention of accused nos. 1 and 3 to cause
her death.
27. In the facts and circumstances of the
present matter, the above findings can be recorded
even without asking the accused persons to
explain. Still, we may consider what accused
nos. 1 and 3 have to say, if, they have a
plausible explanation, keeping in view Section 106
of the Indian Evidence Act.
The Accidental Death Report Exhibit 89
was the version first in time given by the accused
no.1. Written Statements Exhibit 106 and 107 are
the versions of accused nos. 1 and 3 during the
course of trial. We have already referred in
details to the contents of Accidental Death
Report. In the written statement, accused no.1 has
initially tried to say that there was no demand
made by his father and everything had proceeded
happily. We have already discussed that the
evidence does not show this. In the written
statement, this accused has tried to say that in
the evening of 17th December, 1993, the accused
no.3 had taken Shashibala to Dr. Kandlikar as she
was not well. However, there is no evidence of
Dr. Kandlikar available on record. There are no
particulars as to what was the ailment. The
Accidental Death Report and written statements,
both claimed that the couple was going around with
the accused No.3 and other friends. There is no
evidence on record of those friends joining them.
In the Accidental Death Report accused no.1 had
claimed that after having coffee at 10 p.m., he
alone had returned from walk at 12.45 a.m. Against
this in written statement, it is tried to claim
that after coffee accused no.1 and victim
Shashibala were lying on the bed and were planning
regarding return on 19th. In the Accidental Death
Report it was mentioned that when accused no.1
returned at night at about 12.45 a.m., he saw his
wife Shashibala and deemed sister Rupindar
sleeping on the bed and he also joined and slept
on the same bed. It was mentioned that he was near
the wall, then his wife and then his sister in
that order, for the purpose of sleeping. In the
written statement, however, it is claimed that
accused no.3 Rupindar slept on the floor by
taking one blanket and pillow. We have already
discussed that in the room there were only two
mattresses and three blankets found on the bed in
disorderly condition and two pillows were there on
the bed. In Accidental Death Report, it was
claimed that some time in the night accused no.1
noticed his wife strolling in “Varandah” and when
asked she said that she was feeling giddy and he
called her in as it was extremely cold. Against
this in written statement there is no reference to
strolling in “Varandah”. It is claimed that when
accused no.1 started feeling sleepy, he asked
Shashibala to go to sleep but she replied that she
was feeling uneasy. Accidental Death Report did
not claim that victim had opened the window and
was sitting in window when accused no.1 went to
sleep. In the written statement however, it was
introduced that when accused no.1 asked the victim
to sleep she asked him to go to sleep and herself
opened the window and was sitting on it. This is
against what was mentioned in Accidental Death
Report where it was claimed that all the doors and
window had been closed as it was extremely cold
outside. In the Accidental Death Report and
written statement, it has been claimed that there
was sound of thud and accused no.1 got up and
checked in the room and bathroom and did not find
his wife. In Accidental Death Report it was
claimed that window was open and accused no.1
peeped outside from first floor and saw his wife
had fallen down. In the written statement however
he does not claim to have seen down from the
window before running down. Probably this version
has been changed as there is evidence of PW7
and
PW8
that when accused no.1 had come down to them
in odd hours and asked to open the main door, he
had claimed that his luggage had fallen down.
Looking to the above, it can be said that
there are differences and even contradictions in
the version given soon after the incident and what
is now claimed.
The differences show that accused are
hiding what exactly happened in the room that
night. Even ignoring differences in version as
found in written statement and the Accidental
Death Report, we find that accused are unable to
explain the death of Shashibala who was in the
same room. There is no plausible explanation.
Simply saying that both of them went to sleep and
do not know as to how she came down the window is
no explanation. Looking to the case of prosecution
proved, adverse inference needs to be drawn
against these accused. It has to be held that the
accused Nos. 1 and 3 committed murder of
Shashibala. In the facts and circumstances proved,
it must be held that both of them were acting in
furtherance of common intention of each other and
are thus liable under Section 302 read with 34 of
IPC.
28. Section 498A of IPC reads as under :“
498A :Husband
or relative of husband of a
woman subjecting her to cruelty:Whoever,
being
the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may
extend to three years and shall also be liable
to fine.
Explanation :For
the purpose of this section,
“cruelty means:::
(a) any willful conduct which is of such a
nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to
life, limb or health (whether mental or
physical) of the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful
demand for any property or valuable security or
is on account of failure by her or any person
related to her to meet such demand.”
Looking to the above clause (a) and facts
proved in the present matter, it is clear that
accused no.1 indulged in willful conduct of
keeping accused no.3 constantly with them although
he had come down for honeymoon with Shashibala.
The trial Court has rightly observed that such
acts amounted to cruelty. The just married bride
having third person young girl, declared as deemed
sister, sharing the same bed must be said to be
suffering cruelty. Such conduct of husband is
likely to drive the bride to cause grave injury to
her health affecting the mental and physical
health of the wife. The trial Court has rightly
held accused no.1 guilty under Section 498A.
29. Accused No.3 has been convicted by the
trial Court under Section 114 for abetting offence
under Section 498A of IPC on the ground that her
continued presence in the room amounted to cruelty
and by her presence she was aiding and abetting
accused no.1 to subject Shashibala to cruelty. The
Trial Court has held that as Shashibala was not
related, she could not be convicted under Section
498A. Section 114 of IPC reads as under :“
Section 114 :Abettor
present when offence is
committed. Whenever
any person, who is absent
would be liable to be punished as an abettor, is
present when the act or offence for which he would
be punishable in consequence of the abetment is
committed, he shall be deemed to have committed
such act or offence.”
In the matter of “Kochu Cherukka Panicker
and another V/s The State of Kerala” reported in
1964(1) Cri.L.J. 875, it was observed in para no.8
as under :“
In order to bring a case within S. 114, I.P.C.
the abetment must be complete, apart from the
presence of the abettor; in other words, the act
of abetment must have taken place at a time prior
to the actual commission of the offence and it is
only when the abettor happens to be present at
the time of the commission of the offence itself,
that the operation of S. 114 would be attracted.”
Even the matter of “Mathurala Adi Reddy V/s
The State of Hyderabad” reported in AIR 1956 S.C.
177 shows that when there is prior abetment plus
actual presence it would amount to participation
attracting Section 114 and bringing case under
Section 34 of IPC.
Keeping above in view, the requirement is that
the act of abetment should have been complete
before the act abetted is committed and in such
situation, if the person who abets offence is
present, he becomes liable for the offence itself
committed in consequence of the abetment. In the
present matter, continued presence of accused no.3
itself was the cruelty which attracted Section
498A against accused no.1 and thus it would not be
appropriate to apply the same act to invoke
Section 114 of IPC and impose punishment
separately for offence under Section 114 of IPC.
30. It has been argued for the accused that
Trial Court convicted both the accused Nos. 1 and
3 under Section 302 and did not mention that it
was read with Section 34 of IPC. No doubt in final
Order reference to Section 34 remained, but in
addition to reasonings, in para no.44 the Court
clearly recorded that Accused Nos. 1 and 3 are
guilty of having committed offence punishable
under Section 302 read with 34 of IPC. We also
hold accordingly. It is necessary to mention
punishing section. It is better to mention the
Sectioninaid
even in final order. However, mere
nonmentioning
of the sectioninaid
due to
clerical error would not be prejudicial if the
Judgment, which is to be read as a whole is clear.
31. For the above reasons, we pass the
following order :ORDER
(1) Criminal Appeal No. 371/1997 filed by the
appellant – accused no.1 is dismissed.
(2) Criminal Appeal No. 378/1997 filed by the
appellant – accused no.3 is partly allowed. Her
conviction and sentence as imposed by trial Court
under Section 114 of IPC is set aside and she is
acquitted of Section 114 of IPC. Fine if any paid
on that count, may be refunded to her.
(3) Rest of the judgment and order of trial Court
of conviction and sentence, as passed against both
the appellants, is maintained.
(4) Appellants shall surrender to their Bail
Bonds.
Sd/Sd/
(
A.I.S. CHEEMA, J.) (NARESH H. PATIL, J.)
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