apeal 1200-03.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1200 OF 2003 Shri. Baban Ramchandra Khare, ] Age : Adult, at present undergoing ] sentence at Solapur District Prison, ] Solapur. ] Appellant / Org. Accused Vs The State of Maharashtra ] Respondent Shri. S.S. Salunkhe for the Applicant Shri. H.J. Dedhia, APP for the State CORAM : D.D. SINHA AND SMT. V.K. TAHILRAMANI, JJ RESERVED ON : 26th NOVEMBER, 2010. PRONOUNCED ON : 23rd DECEMBER, 2010. JUDGMENT [ PER SMT. V.K. TAHILRAMANI,J ] 1. Through this appeal, the appellant-original accused has impugned the judgment and order dated 07.08.2003 passed by the learned IV Additional Sessions Judge, Pandharpur in Sessions Case No. 25 of 1996. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and to pay fine of Rs. 1000/-, in default RI for three months. 1 apeal 1200-03.doc By the very same judgment and order, the appellant also came to be convicted under Section 201 of IPC and sentenced to suffer RI for seven years and to pay fine of Rs. 500/- in default to suffer RI for one month. The learned Sessions Judge directed that the substantive sentences of imprisonment shall run concurrently. 2. The prosecution case briefly stated is as under: Sulochana (deceased) was the sister of PW 6 Mohan. She was married to the accused Baban Khare about 10 years prior to the incident. The accused along with his wife Sulochana wee residing at village Ropale, Tal. Pandhapur, Dist. Solapur. Just prior to the incident, they had three female issues and Sulochana was expecting her fourth child. According to the prosecution, as Sulochana was begetting female issues, the accused was ill treating her and he used to beat her. On account of ill-treatment, a meeting was held at Village Shankargaon which was attended by PW 6 Mohan and PW 8 Shivaji. In the meeting, the accused assured that he would treat Sulochana properly and took her back with him for cohabitation to his village Ropale, Tal. Pandharpur. The said meeting was held just one month prior to the incident. The incident took place on 05.10.1995. On 05.10.1995, the accused went to the house of PW 6 Mohan at village Shankargaon and inquired with him whether Sulochana had come 2 apeal 1200-03.doc there. Accused told Mohan that on 04.10.1995, there was quarrel between him and Sulochana and she left the house. Thereafter, the accused went back to his village. PW 6 Mohan met Police Patil of village Shankargaon and told him that the accused had come to his house to make inquiry in respect of Sulochana. At that time, PW 5 Ashok Patil, son of Police Patil told Mohan that on 04.10.1995 at 05.00 p.m., while he was returning to the village from Pandharpur, he had seen the accused and Sulochana on cycle at Tarapur nala. Thereupon, some suspicion arose in the mind of PW 6 Mohan. Police Patil advised Mohan to lodge a report. Accordingly PW 6 Mohan went to Pandharpur Taluka Police Station and lodged a missing complaint on 05.10.1995. The father of the accused also lodged a missing complaint on 08.10.1995 at Pandharpur Taluka Police Station in relation to his son Baban being missing. The missing report dated 05.10.1995 lodged by PW 6 Mohan was registered and it bore No. 5/95 and the report lodged by Ramchandra, the father of the accused dated 08.10.1995 was registered as 6/95 (Exh 44). Inquiry in relation to both the missing complaints was handed over to PW 4 Police Head Constable Tamboli. He started inquiry into the missing complaints. On 16.10.1995, PW 4 Tamboli on receiving information about whereabout of the accused brought him to police station. The accused came to be interrogated. The accused gave certain information to the police and he also 3 apeal 1200-03.doc showed his willingness to show the spot where he had hidden the dead body of his wife. Hence, PW 4 Constable Tamboli lodged his FIR Exh 32 on behalf of the State on 16.10.1995 at 10.05 a.m. The memorandum statement Exh 22 of the accused was recorded in the presence of panch witness PW 3 Mahmane from 10.20 a.m. to 10.30 a.m. Thereafter, the accused led the police and pancha to the spot where there was dense sugar cane crop. From the said sugar cane crop, the accused pointed out pieces of body including skull, hair, bones of leg etc. This fact was recorded in panchanama Exh 23 which was concluded at 12.00 noon. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellant under Sections 302 and 201 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the entire evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4. We have heard the learned advocate for the appellant and learned APP for the State. We have perused the evidence as well as the judgment and order passed by the learned 4 apeal 1200-03.doc Sessions Judge. After giving our anxious consideration to the matter, for the reasons stated herein below, we are of the opinion that the judgment and order does not call for any interference. 5 There is no eye witness in the present case and the entire prosecution case is based on circumstantial evidence. The circumstances relied upon by the prosecution are as under: a) Motive, b) Last seen i.e the evidence of PW 5 Ashok Patil who has stated that he had seen the accused and his wife together on a cycle at Tarapur nala on 04.10.1995 at about 5.00 p.m., c) Missing report lodged by PW 6 Mohan on 05.10.1995 in relation to his sister Sulochana being missing, d) Missing report (Exh. 44) lodged by father of the accused on 08.10.1995 which shows that the accused was absconding, e) Subsequent conduct of the accused i.e absconding immediately after the incident, f) Disclosure statement made by the accused that he would show the place where he had concealed the dead body of his wife and finding of half torso, skull bones and other articles at the spot, 5 apeal 1200-03.doc g) Disclosure statement made by the accused leading to discovery of his cycle which was hidden in sugar cane crop, h) finding of blood stains on the clothes of the accused at the time of his arrest, i) C.A. Report (Exh 51) showing blood stains on the clothes of the accused. 6. As stated earlier, the entire prosecution case rests on circumstantial evidence. We have enumerated the circumstances relied upon by the prosecution. The question, therefore, is whether the prosecution has proved the guilt of the accused beyond reasonable doubt. In case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively taken the circumstances must 6 apeal 1200-03.doc form an unbroken chain of events leading to the proof of the guilt of the accused. Keeping in mind these aspects, we have evaluated the evidence. 7. The first circumstance relied by the prosecution is motive. According to the prosecution the motive was that Sulochana the wife of accused was begetting only female issues, due to this, the accused had grudge in his mind against her. In this regard, the prosecution has mainly placed reliance on the evidence of PW 6 Mohan who is the brother of Sulochana. 8. PW 6 Mohan was the brother of Sulochana. He has deposed that Sulochana had given birth to only female issues from the accused Baban. No male issue was born to her. As Sulochana was begetting only female issues, the accused used to ill-treat Sulochana by beating her and he used to make allegations against her and suspect her character. Such incidents had taken place on many occasions prior to the incident in question. Sulochana on her visit to the house of PW 6 Mohan used to disclose about the ill-treatment meted out to her by the accused. Hence, the accused was convinced by calling a meeting which was attended by PW 6 Mohan and others at village Shankargaon. The accused then come to the house of PW 6 Mohan and requested to send his wife Sulochana and 7 apeal 1200-03.doc gave assurance that he would treat Sulochana properly. Accused took Sulochana with him. However, again, there was ill-treatment at the hands of the accused to Sulochana and Sulochana had come to the house of PW 6 Mohan. Again a meeting was called to settle the dispute. The accused was also present in that meeting and told that he may be given last chance and that he would not repeat the same mistake in future. On his assurance, Sulochana was sent with accused for cohabitation to village Ropale. This meeting was held just one month prior to death of Sulochana. Sulochana was pregnant at that time and she was to delivery shortly. On 05.10.1995 in the morning, the accused Baban came to the house of Mohan in village Shankargaon. He made enquiry with Mohan if Sulochana had come to his house. Accused Baban told him that the earlier day, there was quarrel beween him and Sulochana and Sulochana left the house saying that she is going to answer call of nature but she did not return. Sulochana was then pregnant. As Sulochana was due for delivery, Mohan asked the accused if Sulochana had delivered. The accused Baban told him that Sulochana had delivered a female child. The accused then went away. 9. Thus, the evidence of PW 6 Mohan shows that Sulochana already had three female issues and just before the incident, Sulochana had delivered 4th child which was again a female 8 apeal 1200-03.doc child. The accused already had a grudge against Sulochana as she had only female issues, hence when fourth female issue was delivered by Sulochana, the grudge of the accused against her increased. This brings out the motive for the accused to commit the offence. 10. Now, we shall consider the circumstance of last seen. In this regard, the prosecution has placed reliance on the evidence of PW 5 Ashok and PW 6 Mohan. PW 5 Ashok has deposed that he knew PW 6 Mohan,his sister Sulochana and the accused. His father is police patil of village Shankargaon. On 04.10.1995, he had come to Pandharpur. It was Ekadashi day, hence, he had come to Pandharpur to take darshan and also to purchase certain articles for his electric motor. After completion of his work, he came to Pandharpur bus stop and boarded the bus. At about 4.00 p.m., when he reached near the nala in the vicinity of village Tarapur, he saw the accused and his wife Sulochana proceeding on cycle. The land of PW 5 Ashok is adjacent to the land of PW 6 Mohan. Thus, PW 5 Ashok was well acquainted with the family of PW 6 Mohan. The cycle on which the accused and the deceased were sitting was traveling in the same direction, hence, PW 5 Ashok had ample opportunity to see the cyclist and the pillion rider. Thus, it was easy for him to identify the accused and his wife Sulochana. The evidence of PW 5 Ashok 9 apeal 1200-03.doc is not shattered in any way. It has further come in his evidence that next day morning, PW 6 Mohan had came to his house and complained to his father that the accused had come to his house telling that he had come in search of his wife Sulochana. At that time, PW 5 Ashok told PW 6 Mohan that he had seen the accused and his wife Sulochana together at Tarapur the earlier day. 11. PW 6 Mohan has deposed that on 05.10.1995, the accused came to his house in the morning and made enquiry whether Sulochana had come to his house. Sulochana was then pregnant and had just delivered a female child. This fact was disclosed by the accused to PW 6 Mohan. The accused then went away. Thereafter, Mohan went to the house of police patil where he met Pandurang Patil and his son PW 5 Ashok. PW 6 Mohan told Pandurang that the accused had came to his house and enquired if Sulochana had come there, whereupon Ashok told him that on the earlier day at about 05.00 p.m., he had seen the accused and Sulochana on cycle at a nala, near Tarapur, the accused was riding a bicycle while Sulochana was sitting on carrier behind him. PW 6 Mohan had suspicion in his mind. Police patil advised him to lodge complaint to the police. Accordingly, PW 6 Mohan came to Pandharpur Taluka Police Station and gave his complaint application dated 05.10.1995. The said complaint is at Exh 10 apeal 1200-03.doc 35. The copies of the said complaint application were sent by him to various authorities. Again on 08.10.1995 and 10.10.1995, PW 6 Mohan gave complaint applications to Pandharpur Taluka Police Station and various authorities. 12. From the evidence of PW 5 Ashok and other material on record, it can be safely concluded that the Sulochana was last seen with the accused on a cycle at 05.00 p.m. near a nala in village Tarapur. It is pertinent to note that the pieces of dead body of Sulochana were found near this nala. It is further to be noted that the cycle of the accused was found hidden nearby in densely grown sugarcane crop. 13. In our view, the principle embodied in S. 106 of the Evidence Act can be utilized in a situation like this. It was obligatory on the part of the accused to satisfy the Court as to how and in what manner Sulochana parted his company. This is on the principle that a person who is last found in the company of another,if later found missing then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case, the accused has failed to discharge this onus. Even in the statement under Section 313 of Cr.P.C., the accused did not take any specific stand whatsoever nor gave any explanation in respect of his missing wife Sulochana. Under 11 apeal 1200-03.doc Section 106 of the Evidence Act, the accused who was the husband of Sulochana was duty bound by virtue of his special knowledge to offer satisfactory explanation which might lead the Court to draw a different inference. 14. Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove guilt of the accused beyond reasonable doubt but the Section would apply to cases where prosecution has succeeded in proving the facts from which a reasonable inference can be drawn regarding the existence of certain facts, unless the accused by virtue of special knowledge regarding such facts provides some explanation which might drive the court to draw a different inference. Useful reference can be made to Suchasingh Vs State of Punjab (2001) 4 SCC 375 wherein it is observed that : " 18. Learned Senior Counsel contended that Section 106 of the Evidence Act is not intended for the purpose of filling up the vacuum in prosecution evidence. He invited our attention to the observations made by the Privy Council in Attygattle Vs R AIR 1936 PC 169 : 37 Cri. L.J. 628 and also in Stephen Seneviratne V. R AIR 1936 PC 289 : 37 Cri. L.J. 963. In fact the observations contained therein were considered by this Court in an early decision authored by Vivian Bose, J., in Shambhu Nath Mehra Vs State of Ajmer, AIR 1956 SC 404 : 1956 Cri. L.J. 794. The statement of law made by the learned Judge in the aforesaid decision has been 12 apeal 1200-03.doc extracted by us in State of W.B. Vs Mir Mohd. Omar (2000)8 SCC 382 : 2000 SCC (Cri) 1516. It is useful to extract a further portion of the observations made by us in the aforesaid decision : (SCC p. 392, para 33) '33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.' "19.We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference." In the light of above observations, Section 106 of 13 apeal 1200-03.doc Evidence Act can very well be invoked in the case in hand. 15. Our attention is drawn to the fact that the accused in his statement under Section 313 of Cr.P.C. has not provided any explanation but he has only answered, “I do not know” or “It is false”. We may make useful reference of a decision of the Supreme Court in the case of Joseph s/o. Kooveli Poulo Vs State of Kerala reported in (2000)5 SCC 197 wherein it is observed that this very circumstance of the accused not providing any explanation but only stating 'I do not know' or 'It is false' provides a link in the chain of incriminating circumstances against the accused. We may also advantageously quote the below mentioned observation from this judgment: "During the time of questioning under Section 313 Cr. P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for 14 apeal 1200-03.doc completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed. That missing link to connect the accused- appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. 16 Similar view has been taken by the Supreme Court in Damodar Vs. State of Karnataka reported in (2000) 10 Supreme Court Cases 328 and in the case of State of Maharashtra Vs Suresh reported in (2000)1 SCC 471. On this point we may also refer to a decision of the Supreme Court in the case of Deonandan VS. State of Bihar, reported in AIR 1955 SC 801 wherein it is observed that “such absence of explanation or false explanation would itself be an additional link which completes the chain. We find that these decisions are all perfectly applicable to the present case. 17. In the present case, since the prosecution has established last seen together theory, a burden is cast upon the accused to prove that in what circumstances and when he parted company with deceased. He has to explain as to how and when he parted company as required under Section 106 of the Evidence Act. Unfortunately, he has not given any 15 apeal 1200-03.doc explanation. If we have a look to his statement under section 313 of Cr.P.C. the accused has nowhere explained this aspect. In such circumstances, it can safely be said that he has not discharged the burden cast upon him. When the said fact was within the special knowledge of the accused, he was under obligation to explain to show his innocence, but unfortunately, he has not discharged this onus. We may advantageously quote a ruling reported in case of Ranjyotsingh Gurudayalsingh Vs. State of Maharashtra, 2009 Cri. L.J. 2530. In that matter, it was argued that circumstance that the accused was last seen together with deceased at the International Air Port at Delhi on 12.2.2001, is not sufficient to bring home the charge of murder because over 60 hours had elapsed thereafter until his body was found at Mumbai on 15.2.2001. It was urged by the defence that the prosecution has not been able to establish as to what transpired in the interregnum, hence, there was no link. We would like to refer here to paragraph 25 of this citation, which reads as under: “Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underlies Section 106 of the Evidence Act can be applied in 16 apeal 1200-03.doc the context of the last seen theory when certain facts are especially within the knowledge of a person. In the State of Rajasthan Vs. Kashi Ram (2006) 12 SCC 254: (AIR 2007 SC 144), the Supreme Court held as follows: “Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or