Criminal Appeal No. 656 of 2005 and Criminal Revision Application No. 220 of 2005. Case: Yogesh Dinesh Bharadwaj and Ors. Vs State of Maharashtra and Ors.. Bombay High Court

Case NumberCriminal Appeal No. 656 of 2005 and Criminal Revision Application No. 220 of 2005
CounselFor Appellant: Naveen Chomal i/by Dinesh D. Tiwari & Associates and For Respondents: V.R. Bhonsale, A.P.P.
JudgesV. K. Tahilramani, Actg. C.J. and Dr. Shalini Phansalkar Joshi, J.
IssueCode of Criminal Procedure, 1973 (CrPC) - Section 313; Indian Penal Code 1860, (IPC) - Sections 201, 302, 498A
Judgement DateFebruary 05, 2016
CourtBombay High Court

Judgment:

Dr. Shalini Phansalkar Joshi, J.

  1. The appellant, who stands convicted by the judgment and order dated 16th June, 2005, of Second Additional Sessions Judge, Thane, in Sessions Case No. 142 of 2004, for the offence punishable under Section 302 and 201 of Indian Penal Code, and sentenced to suffer imprisonment for life and to pay fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for one year and rigorous imprisonment for 3 years and to pay fine of Rs. 3,000/- in default to suffer rigorous imprisonment for six months, respectively; by this appeal, challenges his conviction and sentence.

  2. As by the said judgment and order itself, the appellant is acquitted, for the offence under Section 498A of Indian Penal Code, being aggrieved thereby the original complainant has preferred Revision Application, for setting aside the said order of acquittal and also for enhancement of sentence of appellant from life imprisonment to death penalty.

  3. Brief facts of the appeal and Revision Application, can be stated as follows:-

    Appellant, is the husband of P.W. 2 Dinkar Kausadikar's daughter Prachi, since deceased. It was a love marriage performed in August, 2000 despite the parents of Prachi initially not willing for the same to give consent and on her insistence gave consent. Prachi was Architect and appellant was in private service. After marriage, they resided with his parents for about three months. Thereafter they started residing in a rented house at Flat No. 4 at Anadam Co-operative Housing Society at Koparkhairane. Within 3 to 4 months, P.W. 2 Dinkar purchased the said flat in the name of his wife Sandhya and daughter Prachi. P.W. 6 Rashmi, the elder sister of Prachi was also residing in the same building, on the 4th floor. Within few days after the marriage, the appellant became addicted to liquor and started ill-treating Prachi. He also developed an affair with his ex-colleague Preeti Surange. She used to visit his house in the absence of Prachi. That created a rift in the relationship between the appellant and Prachi. Her parents attempted to persuade and convince the appellant, but it was in vain.

  4. In August/September 2001, in the midnight, Prachi informed her parents on phone that the appellant was in drunken condition and beating her. They reached her home to find the appellant under the influence of liquor. They took Prachi to their home. On the next day, the appellant apologised to her for that incidence and therefore, Prachi again returned to his house. However, there was no improvement in the conduct of appellant. He was also arrested by Vashi Railway Police, in connection with robbery. P.W. 2 Dinkar, Prachi's father got him released on bail. This conduct of the appellant ultimately drove the parties to take decision of divorce by mutual consent. The petition to that effect was filed in the Civil Court at Thane in April, 2002. On filing such petition, Prachi shifted to the house of her parents; whereas appellant left for Delhi. His girl friend Preeti followed him. The appellant's father then approached P.W. 2 Dinkar, to make efforts for Prachi to resume cohabitation with appellant. Hence Prachi went to Delhi to convince the appellant. In November, 2002, appellant returned to Navi Mumbai and both of them started residing together on the assurance of appellant that he will improve his conduct.

  5. Flat No. 304 in Konkan Housing Co-operative Society, Sector No. 15, was taken on rent by them. P.W. 2 Dinkar, Prachi's father, paid Rs. 40,000/- towards deposit of the said flat and appellant and Prachi started residing there. However, the conduct of the appellant did not improve. He resumed his relationship with Preeti. Hence once again the relations between the spouses became strained. On 18th March, 2003, Preeti was seen in the house of appellant by Rashmi, the elder sister of Prachi. She informed Prachi about the same and then Preeti was driven out of the house.

  6. In this backdrop, on 31st March, 2003 at odd hours of 4.00 a.m., Prachi's father P.W. 2 Dinkar received two blank calls. Hence he became worried and tried to contact Prachi on phone. Instead of Prachi answering the said call, appellant responded and told that Prachi had gone for her work in Intelenet Global Services for her shift hours from 5.30 p.m. to 2.30 a.m. However, within 15 minutes thereafter, the appellant made another phone call to her father and informed that Prachi was no more; she was dead and put the phone down. Prachi's parents, then immediately contacted their daughter Rashmi who was residing near her house and instructed her to go to Prachi's house. P.W. 6 Rashmi, then rushed to house of Prachi in her car. The door of the house was open and appellant was sitting in the hall. Prachi's body was stuffed in the cabinet which was within the wall of the hall below the window. P.W. 6 Rashmi, in a frightened state of mind, urged appellant to take Prachi out and to give her medical aid. Appellant was reluctant saying that Prachi was already dead. P.W. 6 Rashmi, then threatened to contact police, hence appellant took out Prachi's body from the cabinet and threw in the backside of Rashmi's car. They took her body to MGS Hospital. The Doctor on duty, on examination, declared that Prachi was dead. In the meantime Prachi's parents after contacting their family friend Dr. Motwani, rushed to the house of Prachi. On coming to know that Prachi was already taken to the hospital, they also rushed there. They found marks of violence and blood oozing from nostril and mouth of dead body of Prachi.

  7. The information of the incident was given by the hospital to Turbhe police station. Initially A.D. No. 46 of 2003 was registered on the said information. PSI Kaldate, then conducted inquest panchnama (Exh. 15) and sent the dead body for postmortem. P.W. 4 Dr. Bhushan Jain, attached to Navi Mumbai Municipal Corporation Hospital, Vashi, performed postmortem and found the cause of death as head injury with attempted throttling. Within few hours after sending the dead body for postmortem, P.W. 9 PSI Nalavade, conducted spot panchnama vide exh. 46. On the spot, P.W. 10 API Surve found blood stains on the wall, curtain and computer cover. The metal flower pot lying there, was having dents and blood stains thereon. All these articles came to be seized. Similarly some hair lying on the floor were also seized alongwith hand written notes (Exh. 51 and 52) which were found below the mattress.

  8. On the same day P.W. 2 Dinkar, Prachi's father, lodged complaint (Exh. 17) against the appellant. On his complaint C.R. No. 80 of 2003 came to be registered against appellant for the offence punishable under Sections 498A, 302 and 201 of the Indian Penal Code. P.W. 10 API Nalavade took over investigation of the case. He arrested the appellant on the same day. On the next day, during police custody at the instance of appellant, his blood stained clothes came to be recovered under panchnama Exh. 20 from the washing machine in his house. As a part of further investigation, statements of witnesses were recorded. The clothes of deceased Prachi were seized under panchnama. All the seized Muddemal articles were sent to Chemical Analyzer. The Chemical Analyzer's Reports are produced in the case vide Exh. 26 to 28 and the postmortem notes vide exh. 25. Further to completion of investigation, chargesheet is filed against the appellant in the court of J.M.F.C. Vashi.

  9. On committal of the case to the Sessions Court, trial Court framed charge against the appellant vide exh. 5. The appellant pleaded not guilty and claimed trial, raising defence of denial and false implication.

  10. In supports of it's case, prosecution examined 10 witnesses including P.W. 2 Dinkar, P.W. 5 Sandhya and P.W. 6 Rashmi, parents and sister of Prachi, respectively; P.W. 7 Ashok, the panch witness to the inquest panchnama and recovery panchnama of the clothes of appellant; P.W. 4 Dr. Bhushan Jain, who conducted postmortem, P.W. 8 Vilas, friend of appellant and two police Officers namely, P.W. 9 Nalawade and P.W. 10 API Surve. Uttamkumar Mishra, the watchman of the society where appellant and deceased were residing and Fatima Sayyed who was working as Team Leader in Intelenet Global Services where Prachi was serving, were examined as Court witnesses.

  11. In the light of this evidence, statement of appellant under Section 313 of Code of Criminal procedure was recorded. The appellant submitted his written statement to substantiate his defence. On appreciation of this oral and documentary evidence on record, the trial Court was pleased to hold the guilt of appellant to be proved beyond reasonable doubt for the offence punishable under Section 302 and 201 of Indian Penal Code and convicted & sentenced him as aforesaid; whereas acquitted him for the offence under Section 498A of IPC.

  12. This judgment and order of the trial Court is challenged in this appeal by learned counsel for appellant; whereas supported by learned APP. The finding of acquittal, as recorded by the trial Court in respect of offence punishable under Section 498A of the IPC is challenged by learned counsel for the Revision Applicant and also asked for enhancement of sentence of appellant from life imprisonment to death penalty, considering the gravity of the offence.

  13. In...

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