NAVAL KISHOREversusSTATE OF MAHARASHTRA

                      [2015] 2 S.C.R. 1012


A                       NAVAL KISHORE

                                v.

                  STATE OF MAHARASHTRA
B              (Criminal Appeal No.2246 of 2011)

                        MARCH 17, 2015

         [T.S. THAKUR AND PRAFULLA C. PANT, JJ.]
c       Penal Code, 1860 - ss.498A, 302, 201 - Conviction
   and sentence under - Prosecution case that wife harassed
   and subject to cruelty by her husband and in-laws - Death
  of wife by burn injuries - Conviction and sentence of
   husband u/ss. 498A, 302 and 201 by courts below - On
0
   appeal, held: It is clear from the medical evidence that
   attempt to burn the body was made in order to cause
  disappearance of evidence of murder - There is trustworthy
  evidence of brother of deceased as also her neighbours that
E she was subjected to physical cruelty- In view thereof there
  is little force in the submission of the husband that wife
  committed suicide and left a chit-suicide note, which was
  not proved - Further the submission that the Investigating
  Officer made no effort to obtain handwriting expert report
F relating to seized chit and that no explanation was given
  by the prosecution as to why ante mortem injuries (other
  than bum injuries) were not mentioned in the inquest report
  not material nor fatal to the prosecution case - Thus, there
  is no illegality in the order .of conviction and sentence of
G the husband by the courts below.

        State of West Bengal v Mir Mohammad Omar and
    Others (2000) 8 SCC 382 - referred to.

H                             1012
    NAVAL KISHORE v. STATE OF MAHARASHTRA                1013


                  Case Law Reference                         A

    (2000) 8 sec 382      referred to.      Para 17

   CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 2246 of 2011.
                                                             B
    From the Judgment and Order dated 05.03.2010 of the
High Court of Judicature at Bombay at Nagpur Bench in
Criminal Appeal No. 518 of 2004.

    Dharmendra Kumar Sinha for the Appellant.                c
   Aniruddha P. Mayee, Shankar Chillarge, Charudatta
Mahindrakar, A. Selvin Raja for the Respondent.

    The Judgment of the Court was delivered by
                                                             D
    PRAFULLA C. PANT, J. 1. 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           E
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.
                                                             F
    2. We have heard learned counsel for the parties at
length and perused the record.

     3. Prosecution story in brief is that appellant Naval
Kishore got married to Jyoti (deceased) on 27.6.1992. After G
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 H
1014      SUPREME COURT REPORTS                (2015] 2 S.C.R.


 A 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
 B 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
 C (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
 0
   the appellant, his brother Vinod Kumar, mother Krishnabai
   and maternal uncle lshwar 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
 E she committed suicide by setting herself on fire. Said report
   was recorded by the police as A.O. 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.
 F 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
 G 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
 H deceased (however, the same was not proved on the
    NAVAL KISHORE v. STATE OF MAHARASHTRA                1015
              [PRAFULLA C. PANT, J.]

record). Burnt pieces of cl9thes - petticoat and saree, and A
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 completion of investigation, charge sheet in respect of
offences punishable under Sections 498A, 302 read with B
Section 34 IPC, and under Section 201 IPC, was filed
against the appellant Naval Kishore, his brother Vined
Kumar, mother Krishnabai and maternal uncle lshwar
Bhagchand Jain.
                                                            c
    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 D
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 E
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- F
Inspector M.R. Thakare. (who investigated the drime).

     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 G
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 H
1016         SUPREME COURT REPORTS                   (2015] 2 S.C.R.


 A subjected to cruelty. However, no evidence was adduced
   in defence.

             8. T~e trial court, after hearing the parties, found that
       charge relating to all the three offences punishable under
 B     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
 C     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
 D     undergo imprisonment for life and directed to pay fine of
       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
 E     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·
 F 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
 G 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.

H          10. On behalf of the appellant it is argued before us
       NAVAL KISHORE v. STATE OF MAHARASHTRA                1017
                 [PRAFULLA C. PANT, J.]

that the courts below have erred in law in not taking note A
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 appellant had already given a report
(Ex.59) regarding death of his wife, who committed suicide, B
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 C
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 D
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 %" below         E
      (Rt) eye 4 cm x 2 cm. Reddish, Inflamed.

  2. Contusion on (It.) 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    F
        blocked with blood & blood clot.

  3.   L.W. (Rt) face Yz" 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 G
      irregular. Skin of the face is blackened due to soot.
     Age of above injuries are within 24 hrs. caused by
      Hard & blunt object. All above injuries are
      Antemortem.
  4. Following burn injuries are seen on body                H
1018         SUPRElt!E COURT REPORT$                [2015] 2 S.C.R.


 A       i. Burn injury on Head, Neck, Face - 2%

         ii. B.I. to chest & Abd. Wall - 2%

         iii. B.I. to (Rt) Upper Extri. With palm - 3%

 B       iv. B. I. to (Lt) upper Extri. With palm - 2%

         v. B.I. to Back and Buttock - 3%

         vi. B.I. to (Rt) lower Extri. With sole of food - 4%
 c       vii. B.I. to (Lt) lower Extri. With sole of foot - 4%

         viii. B.I. to perineum - 1%

              Total - 21%
 D
         -   All burn injuries are superficial I & II degree

             Base of Burn injuries are pale.

             No red line of inflammation seen.
 E
             Soot in upper respiratory tract & trachea is absent.

             All body become Blackish due to soot.

             No vesicle of blister seen on burn area.
 F
             Injury no. 4 are post mortem burn injuries.

             lnjurv no. (1) to (3) are antemortem.lnjurv no. (4) are
              post mortem."

 G          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
 H
     NAVAL KISHORE v. STATE OF MAHARASHTRA                   1019
               [PRAFULLA C. PANT, J.]

 their report (Ex.79) that "mode of death is Asphyxia. the A
 cause of which is suffocation". The report discloses that
 the post mortem examination was done on the very day,
 i.e., 23.4.1999.

       13. The above medical evidence on record clearly          B
  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   C
  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       D
  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         E
  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       F
  appellant that the wife of the appellant committed suicide,
  but there is nothing on the record to suggest as to why she
  wanted to commit suicide, particularly at the stage of full
  pregnancy.

     14. Statement of PW-1, Suresh Jain (brother of the G
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 H
1020      SUPREME COURT REPORTS                [2015) 2 S.C.R.


 A 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
 B 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
 C 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
 D mention the evidence of PW-7, Lilabai, who is the neighbour
   of the 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
 E 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
 F 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
 G 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
 H the above trustworthy evidence of PW-1, PW-5 and PW-7
      NAVAL KISHORE v. STATE OF MAHARASHTRA                 1021
                [PRAFULLA C. PANT, J.]

read with medical evidence (post mortem report), we find A
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 the record. Theory of B
suicide, advanced by the defence in report AD. 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 C
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 D
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 Mohammad Omar and others 1, this
Court, in paragraph 41, has observed as under:-
                                                                E
     "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 F
     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 G
     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 justiceis
    salvaged despite such defects in investigation."
1   (2000)   a sec 3s2                                         H
1022         SUPREME COURT REPORTS                  [2015] 2 S.C.R.


 A          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.
 B
         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
 C trial court. Lower court record be sent back forthwith.

       Nidhi Jain                                   Appeal dismissed.