Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2246 OF 2011
Naval Kishore … Appellant
Versus
State of Maharashtra … Respondent
J U D G M E N T
Prafulla C. Pant, J.
This appeal is directed against judgment and order dated
5.3.2010, passed by the High Court of Judicature at Bombay,
Nagpur Bench, in Criminal Appeal No. 518 of 2004 whereby said
appeal, filed by the appellant Naval Kishore, was dismissed, and
conviction and sentence recorded against him under Sections
498A, 302 and 201 of Indian Penal Code (IPC), by Additional
Sessions Judge, Khampur in Sessions Case No. 75 of 1999,
stood affirmed.
Signature Not Verified
Digitally signed by
Chetan Kumar
Date: 2015.03.18
15:46:46 IST
Reason:
2. We have heard learned counsel for the parties at length and
perused the record.
Page No.2 of 13
3. Prosecution story in brief is that appellant Naval Kishore
got married to Jyoti (deceased) on 27.6.1992. After marriage she
was harassed and subjected to cruelty by her husband and
in-laws. On 15.7.1997, she was driven out of her matrimonial
house with her two children, born from the wedlock, with regard
to which a report was lodged with Police Station Ramdas Peth in
Akola. While the proceedings relating to said case were pending,
the appellant went to parental house of Jyoti, and promised her
and other relatives that he would not repeat the conduct. As
such, the parents and brothers of Jyoti allowed her to go back to
her matrimonial house on 24.11.1997. It appears that the
appellant again started beating his wife and continued to ill-treat
her. On 23.4.1999, a telephonic information was received in the
parental house of Jyoti that she has died due to burn injuries in
Nandura, the place where the deceased was living with her
husband. On the very day (23.4.1999) a First Information
Report (Ex. 69) was lodged at Police Station Nandura by PW-1,
Suresh Jain (brother of the deceased). On the basis of said
report Crime No. 61 of 1999 was registered in respect of offences
punishable under Sections 306, 498A read with Section 34 IPC
against the appellant, his brother Vinod Kumar, mother
Page No.3 of 13
Krishnabai and maternal uncle Ishwar Bhagchand Jain.
Meanwhile, the appellant also gave a report regarding death of
his wife due to burn injuries at the police station with a story
that she committed suicide by setting herself on fire. Said report
was recorded by the police as A.D. No. 16 of 1999.
4. Investigation was taken up by PW-8 Sub-Inspector M.R.
Thakare, who rushed to the spot with the police party. Dead
body of Jyoti in a burned condition was taken into possession by
the police, and the same was sealed. Inquest Report (Ex. 73)
was prepared and the body was sent for post mortem
examination. PW-6 Dr. Keshav Mende with Dr. (Mrs.) S.V.
Kulkarni conducted autopsy, and opined that the deceased had
died of asphyxia due to suffocation. The team of doctors
recorded three ante mortem injuries and 21% post mortem burn
injuries in its report (Ex.79). A chit is also said to have been
found regarding which accused pleaded that the same was
suicide note left by the deceased (however, the same was not
proved on the record). Burnt pieces of clothes – petticoat and
saree, and the tin containing kerosene were also seized by the
police from the place of incident, regarding which seizure memo
(Ex. 60) was prepared. After interrogation of witnesses and on
Page No.4 of 13
completion of investigation, charge sheet in respect of offences
punishable under Sections 498A, 302 read with Section 34 IPC,
and under Section 201 IPC, was filed against the appellant Naval
Kishore, his brother Vinod Kumar, mother Krishnabai and
maternal uncle Ishwar Bhagchand Jain.
5. The case was committed to the Court of Sessions on
11.8.1999, and necessary copies were given to the accused. On
17.4.2004, after hearing the parties, charge was framed against
all the four accused, including appellant Naval Kishore, in
respect of offences punishable under Sections 498A, 302/34 and
201 IPC to which all of them pleaded not guilty and claimed to
be tried.
6. On this, prosecution got examined PW-1 Suresh Jain
(informant and brother of the deceased), PW-2 Constable
Dayaram Pawar, PW-3 Malatibai (mother of the deceased), PW-4
Narayan Rakhonde (panch witness), PW-5 Gitabai (neighbor),
PW-6 Dr. Keshav Mende (who conducted autopsy with his
colleague Dr. Mrs. Kulkarni), PW-7 Lilabai (another neighbour of
the deceased) and PW-8 Sub-Inspector M.R. Thakare (who
investigated the drime).
Page No.5 of 13
7. Oral and documentary evidence was put to the appellant
and other accused under Section 313 of the Code of Criminal
Procedure, 1973, on 17.7.2004, in reply to which they admitted
that the appellant got married to Jyoti on 27.6.1992. Appellant
Naval Kishore further admitted that his wife used to live with
him and the couple had two children. Accused, including the
appellant, also admitted that on 23.4.1999 Jyoti died but denied
that she was subjected to cruelty. However, no evidence was
adduced in defence.
8. The trial court, after hearing the parties, found that charge
relating to all the three offences punishable under Sections
498A, 302 and 201 IPC, stood proved against accused Naval
Kishore (appellant before us) and convicted him accordingly.
However, in respect of other accused, the trial court found that
the charge was not proved and they were acquitted. After
hearing on sentence, convict Naval Kishore was sentenced under
Section 498A IPC to undergo rigorous imprisonment for a period
of three years and directed to pay fine of Rs.500/-, in default of
payment of which further imprisonment of two months was
directed to be served. He was sentenced under Section 302 IPC
to undergo imprisonment for life and directed to pay fine of
Page No.6 of 13
Rs.1,000/-, in default of payment of fine to further undergo four
months’ imprisonment. The convict was further sentenced to
undergo rigorous imprisonment for a period of three years and
directed to pay fine of Rs.700/-, in default of payment of which
he was directed to serve further imprisonment for a period of
three months under Section 201 IPC.
9. Aggrieved by the judgment and order dated 5.8.2004,
passed by the learned Additional Sessions Judge, Khamgaon, in
Sessions Case No. 75 of 1999, the convict Naval Kishore
preferred appeal before the High Court of Bombay, Nagpur
Bench, which was registered as Criminal Appeal No. 518 of
2004. After hearing the parties and on reappraisal of evidence,
the High Court concurred with the view taken by the trial court,
and upheld the order of conviction and sentence passed against
accused Naval Kishroe. Hence, this appeal through special
leave.
10. On behalf of the appellant it is argued before us that the
courts below have erred in law in not taking note of the fact that
suicide chit was recovered from the place of incident. It is
further argued that the trial court as well as the High Court has
further erred in law in not taking note of the fact that the
Page No.7 of 13
appellant had already given a report (Ex.59) regarding death of
his wife, who committed suicide, at Police Station Nandura,
which shows his bona fide. It is also pointed out that in the
deposition made by the Investigating Officer it is stated that
there were no injury marks (except burn injuries) on the person
of the deceased at the time of preparation of inquest report but
the autopsy report discloses three ante mortem injuries, which
creates doubt as to the manner in which prosecution has
suggested that the crime was committed.
11. Before further discussion, we think it just and proper to
mention the injuries found on the body of the deceased at the
time of post mortem examination. The same are reproduced
below from the autopsy report (Ex.79): -
“1.
Contusion on (Rt) side of nose on chick ½”
below (Rt) eye 4 cm x 2 cm. Reddish,
Inflamed.
2.
Contusion on (lt.) side of nose on thick 1”
below (Lt) eye size 5 cm x 2 cm. Reddish
inflamed nose become completely flattened
and nostril of nose are blocked with blood &
blood clot.
3. L.W. (Rt) face ½” below (Rt) lower lid.
Laterally placed. Size 2 cm x 2 cm x 1 cm.
Bleeding + Base of injury is red inflamed &
Reddish. Margins of injury irregular. Skin of
the face is blackened due to soot. Age of
above injuries are within 24 hrs. caused by
Page No.8 of 13
Hard & blunt object. All above injuries are
Antemortem.
4.
Following burn injuries are seen on body
i.
ii.
iii.
iv.
v.
vi.
vii
viii
Burn injury on Head, Neck, Face – 2%
B.I. to chest & Abd. Wall – 2%
B.I. to (Rt) Upper Extri. With palm – 3%
B.I. to (Lt) upper Extri. With palm – 2%
B.I. to Back and Buttock – 3%
B.I. to (Rt) lower Extri. With sole of food – 4%
B.I. to (Lt) lower Extri. With sole of foot – 4%
B.I. to perineum – 1%
Total – 21%
-
-
-
-
All burn injuries are superficial I & II degree
Base of Burn injuries are pale.
No red line of inflammation seen.
Soot in upper respiratory tract & trachea is
absent.
All body become Blackish due to soot.
No vesicle of blister seen on burn area.
Injury no. 4 are post mortem burn injuries.
-
-
-
: Injury no. (1) to (3) are antemortem.
Injury no. (4) are post mortem.”
12. PW-6, Dr. Keshav Mende has further observed in his report
that uterus of the deceased was in full term and bulky
containing single male dead foetus full x torn x of size 19” x 10”
of two kgs. The team of Medical Officers, Dr. K.B. Mende (PW-6)
and Dr. (Mrs.) S.V. Kulkarni, has opined in their report (Ex.79)
that “mode of death is Asphyxia, the cause of which is
suffocation”. The report discloses that the post mortem
examination was done on the very day, i.e., 23.4.1999.
Page No.9 of 13
13. The above medical evidence on record clearly establishes
that the deceased was smothered as she suffered two contusions
and one lacerated wound as ante mortem injuries on her face.
The second injury recorded above clearly shows that the nose of
the deceased had completely flattened. It appears that after the
deceased was made to suffocate by closing her mouth and nose,
and thereafter she was set on fire and suffered 21% post mortem
burn injuries. It is clear that attempt to burn the body was
made in order to cause disappearance of evidence of murder.
From Ex. 80, read with the statement of PW-6 Dr., Keshav
Mende, it is evident that suffocation appears to have been
caused by obstruction to the air passage. And the witness
(medical officer) has disagreed with the suggestion given by the
defence that the deceased, who was pregnant, might have fallen
on the surface and suffered the first three ante mortem injuries
mentioned above. From the cross-examination of PW-6, it is
also clear that the death had occurred within 12 hours of post
mortem examination. Though it has been pleaded on behalf of
the appellant that the wife of the appellant committed suicide,
but there is nothing on the record to suggest as to why she
Page No.10 of 13
wanted to commit suicide, particularly at the stage of full
pregnancy.
14. Statement of PW-1, Suresh Jain (brother of the deceased),
establishes that after the marriage of his sister Jyoti (deceased)
with the appellant, she was subjected to cruelty. In support of
his allegation, the witness has stated that earlier the deceased
was driven out of her matrimonial house, with her children, in
July, 1997 and a report was lodged at Police Station Ramdas
Peth, Akola, against the appellant and other accused. He has
further narrated the fact that only after the appellant came and
assured that he would not repeat the conduct, the deceased was
allowed to go back with him to her matrimonial house in
Nandura. PW-1, Suresh Jain, has further told that on
20.4.1999, three days before the incident, he had gone to attend
marriage of daughter of his maternal uncle Kanti Lal Jain, where
also Jyoti complained that she was being frequently assaulted
by the appellant. We are of the view that the courts below have
rightly believed the natural testimony of PW-1 Suresh Jain,
brother of the deceased.
15. In this connection, we think it just and proper to mention
the evidence of PW-7, Lilabai, who is the neighbour of the
Page No.11 of 13
appellant in Nandura. She has stated that the appellant used to
quarrel with Jyoti. She further told that she had seen the
appellant assaulting Jyoti. She further deposed that the day
when she saw the appellant beating his wife, next morning she
was found dead. This statement of independent witness
corroborates the statement of PW-1 Suresh Jain.
16. Not only PW-7 Lilabai, but PW-5 Gitabai, who is also
neighbour of the deceased and her husband (appellant), has also
corroborated that the fact of physical cruelty was committed by
the appellant against his wife. She has stated that she heard
shouts of Jyoti and her husband on two occasions. She further
told that she heard commotion from the house of the appellant
about six hours before the incident, whereafter she came to
know that Jyoti has succumbed to injuries. This witness also
lives at a close distance from the house of the appellant. As
against the above trustworthy evidence of PW-1, PW-5 and PW-7
read with medical evidence (post mortem report), we find little
force in the argument of learned counsel for the appellant that
the wife of the appellant committed suicide and had left a chit,
found from nearby place, which, according to the appellant, was
suicide note. Nobody has proved the contents of said chit, on
Page No.12 of 13
the record. Theory of suicide, advanced by the defence in report
A.D. 16 of 1999, was rightly not found true by the courts below.
17. Mr. Dharmendra Kumar Sinha, learned counsel for the
appellant, pointed out that Investigating Officer has made no
effort to obtain handwriting expert report relating to the seized
chit. It is also pleaded that no explanation was given by the
prosecution as to why ante mortem injuries (other than burn
injuries) were not mentioned in the inquest report. After going
through the record, we are of the view that the same, in the
present facts and circumstances of the case, are not material
nor fatal to the prosecution. In State of W.B. v. Mir
1
Mohammad Omar and others , this Court, in paragraph 41,
has observed as under:-
“Castigation of investigation unfortunately seems to
be a regular practice when the trial courts acquit the
accused in criminal cases. In our perception it is
almost impossible to come across a single case
wherein the investigation was conducted completely
flawless or absolutely foolproof. The function of the
criminal courts should not be wasted in picking out
the lapses in investigation and by expressing
unsavoury criticism against investigating officers. If
offenders are acquitted only on account of flaws or
defects in investigation, the cause of criminal justice
becomes the victim. Effort should be made by courts
to see that criminal justice is salvaged despite such
defects in investigation.”
1 (2000) 8 SCC 382
Page No.13 of 13
18. For the reasons, as discussed above, we find no illegality in
the conviction and sentence recorded by the trial court against
the appellant Naval Kishore under Sections 498A, 302 and
Section 201 IPC, which has been affirmed by the High Court.
19. Therefore, the appeal is dismissed. The appellant Naval
Kishore is on bail, his bail is cancelled. He shall surrender
before the court concerned to serve out the remaining part of the
sentence, awarded against him by the trial court. Lower court
record be sent back forthwith.
………………………..…….J.
[T.S. Thakur]
………………………..…….J.
[Prafulla C. Pant]
New Delhi;
March 17, 2015.
Page No.14 of 13
ITEM NO.1B COURT NO.5 SECTION IIA
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No.2246 of 2011
NAVAL KISHORE Appellant(s)
VERSUS
STATE OF MAHARASHTRA Respondent(s)
Date : 17/03/2015 This appeal was called on for pronouncement of
the Judgment today.
For Appellant(s)
Mr. Dharmendra Kumar Sinha, AOR
For Respondent(s)
Mr. Aniruddha P. Mayee, AOR
Hon'ble Mr. Justice Prafulla C. Pant, pronounced the
judgment of the Bench, comprising Hon'ble Mr. Justice T.S.
Thakur and His Lordship.
The appeal is dismissed in terms of the signed
reportable judgment.
(Chetan Kumar)
(H.S. Parashar)
Court Master
Court Master
(Signed reportable judgment is placed on the file)