drp {1} Cri. Appeal No.153/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.153 OF 2010 Mohan Vishwanath Kamble APPELLANT Age-37 Years, Occ-Service R/o Ghat Nandur, Tq-Ambajogai Dist-Beed VERSUS The State of Maharashtra RESPONDENT Through Police Station, Parli (Rural) Tq-Parli-Vaijanath Dist-Beed ....... Mr.T.G.Gaikwad, Advocate for the appellant Mr.S.D.Kaldate, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 20 th June 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.) : 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.2000/-, in default to undergo further RI for 6 months, by the Additional Sessions Judge, Ambajogai, by judgment and order dated 03.02.2010, in Sessions Case No.81/2008, by this appeal questions the correctness of his conviction and sentence. drp {2} Cri. Appeal No.153/2010 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus - PW-6 Kishan Walekar, Police Head Constable, who was attached to Police Chowky Ghat-Nandur, recorded complaint of PW-1 Madhukar on 26.07.2008 at Exhibit-13. Thereafter, a preliminary report came to be prepared in respect of the crime at Exhibit-51. PW-6 thereafter proceeded to the scene of offence and drew scene of offence Panchanama at Exhibit-18 in presence of PW-2 Ankush. Clothes of the deceased came to be seized in presence of Panchas, at Exhibit-20. PW-6 Kishan thereafter took all the documents to police station Parli (Rural) and delivered the same to API Lohkare along with the seized property. PW-8 Sanjay Lohkare, an API who was attached to police station Parli (Rural), received the documents and the seized property from PW-6 Kishan on 26.07.2008. A report, therefore, came to be registered by police station Parli on the basis of the complaint of PW-1 Madhukar, at Exhibit-13. Thereafter the accused came to be arrested vide arrest Panchanama at Exhibit-56 on 30.07.2008. Investigation came to be handed over to PW-9 Dy.S.P. Vijay Pawar. PW-9 Dy.S.P. Vijay Pawar, who was entrusted with the investigation, recorded memorandum of the accused at Exhibit-48, as the accused, during the custodial interrogation, had expressed his willingness to point out the place where he had hidden the stick. The aforesaid memorandum at Exhibit-48 came to be drawn in the presence of PW-5 Gautam. The appellant, then led the police and the Pancha to his house and drp {3} Cri. Appeal No.153/2010 produced a stick, which came to be seized under Panchanama at Exhibit-49. Statements of witnesses came to be recorded and the seized property was referred to the Chemical Analyzer. Subsequent to the completion of investigation, a charge sheet, against the appellant, came to be filed. 3. On committal of the case to the Court of Sessions, trial court, vide Exhibit-5, framed charge against the appellant for an offence punishable u/s 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. 4. The entire prosecution case revolves round the evidence of PW-1 Madhukar, PW-3 Suresh and PW-7 Dr.Shashikant Salunke, Medical Officer, who had conducted the postmortem examination. In order to effectively deal with the submissions advanced before us by Shri.T.G.Gaikwad, learned counsel for the appellant and learned APP, it would be useful to refer to the evidence of PW-1 Madhukar. 5. PW-1 Madhukar, father of deceased Asmita, states that earlier Asmita had been married to one Maruti Chaure but as Maruti Chaure was assaulting Asmita, the marriage between them came to be dissolved. Deceased Asmita was subsequently married to the appellant on 29.05.2008. According to PW-1 Madhukar, Asmita was initially treated well for a period of one and half months and thereafter the appellant started assaulting her by drp {4} Cri. Appeal No.153/2010 suspecting her chastity. It is also stated by PW-1 Madhukar that he had sent his brother PW-3 Suresh to fetch Asmita, but Asmita was not allowed to come to the house of PW-1 Madhukar. In respect of incident, PW-1 states that on 25.07.2008 at about 8 to 8.30 p.m. he had received a telephone from the appellant informing him that his daughter, Asmita had been injured and PW-1 Madhukar should accordingly reach to the house of the appellant. PW-1 Madhukar accordingly accompanied by PW-2 Ankush, PW-3 Suresh and others, rushed to the house of the appellant and reached on the next day morning on 26.07.2008 at about 7.00 a.m. On reaching the house of the accused, they noticed that Asmita had died and accordingly PW-1 Madhukar went to the police station and lodged the complaint at Exhibit-13. In cross examination, he has admitted that the appellant had been married earlier and has a daughter aged 7 years from his first wife. He has also admitted that mother of the appellant, who is aged about 65 years, is also residing with the appellant. He has further admitted as true that after marriage, Asmita had never come to his house. He has admitted as true that on 13.07.2008, for the first time, some person from his family had gone to the house of the appellant for fetching Asmita. He has admitted that he was informed that Asmita would be sent at the time of Panchami. He has admitted as true that on 24.07.2008 there was a talk on telephone between the appellant and Madhukar and the appellant had informed him that he was proceeding towards Jintoor and at that time was at Parbhani. He has admitted that when he had reached the police station, the drp {5} Cri. Appeal No.153/2010 appellant-accused was present in the police station. 6. PW-3 Suresh, uncle of the deceased Asmita, also deposed on similar lines. He, in fact, goes one step forward and states that Asmita had informed about some illicit relations between the accused and one Savitribai, maternal cousin of the appellant. He states about going to the village of the appellant and thereafter accompanying PW-1 Madhukar for lodging the report. Nothing of substance has been elicited in the cross examination of this witness. 7. PW-7 Dr.Shashikant Salunke, who had performed postmortem examination, states about finding the following external injuries on the body of deceased Asmita- 1. CLW over left outer angle of eye 1 x 1 cm in dimension and bone deep. 2. Contusion over right temporal region, extending to right outer angle of eye, 10 x 10 cm in size 3. Contusion over right elbow joint, 5 x 5 cm 4. Contusion over right wrist, 4 x 2 cm in size 5. Contusion over left wrist, dorsal aspect, 3 x 4 cm in dimension. 6. Contusion over right arm 2 x 2 cm in dimension. 7. CLW over left knee joint, 2 x 4 cm in dimension. 8. Contusion over left tibia, lateral side, 4 x 7 cm in size. 9. Contusion over right tibia, lateral side, 5 x 7 cm in size 10.Contusion over right knee, lateral side 4 x 4 cm in dimension. 11. Contusion over left iliac treats 4 x 6 cm in dimension. On internal examination, he had noticed collection of clots drp {6} Cri. Appeal No.153/2010 under temporal area right side 7 x 10 cm in size. He had also noticed extradural haemotoma of 7 x 5 cm in size over right temporal region causing compression of brain matter. He opined that the injuries were antemortem and death was due to extradural haemotoma causing compression of brain i.e. injury to vital organ, brain. The postmortem report is at Exhibit-54. In cross examination he has admitted that after death, age of the injury cannot be determined on the basis of colour of the injuries. He has also admitted that in Exhibit-54, he had not mentioned probable time of death. He has admitted that rigger-mortis would develop within 12 hours of death. Column 11 of the Postmortem report states about rigger mortis being well marked all over the body. Presence of rigger mortis, therefore, would place the death of Asmita sometime between the night of 24th and 25th July 2008. 8. A reference may usefully be made, at this juncture, to the decision of the Supreme Court in “Sharad Birdhichand Sarda V/s State of Maharashtra) AIR 1984 SC 1622. The Supreme Court in the said judgment has held that in cases resting on circumstantial evidence, it was incumbent for the prosecution to prove the circumstances on which it relied. The circumstances so proved should be of concluding nature i.e. should have a definite tendency of incriminating the accused. Circumstances so proved should form a complete chain, which should in all probabilities exclude the hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In other words, the drp {7} Cri. Appeal No.153/2010 circumstances so proved, should be capable of only one inference i.e. the accused and accused alone has committed the crime. Mr.T.G.Gaikwad, learned counsel for the appellant has urged before us that the circumstances so proved by the prosecution do not form a complete chain, which unquestionably points to the appellant as perpetrator of the crime. It is further stated that the appellant probabilized his defence that he was not available in his village when deceased Asmita had died. Learned APP supported the finding recorded by the trial court. 9. PW-1 Madhukar has admitted in his cross examination that on 24th he had talked with the appellant on phone and the appellant had informed that he was on his way to Jintoor. The aforesaid admission by itself is incapable of proving the defence of alibi, which the appellant has taken. According to the appellant, he was not present in the village from 24th, as he had gone to Jintoor for fetching his mother and daughter. Mere admission about the appellant informing PW-1 Madhukar that the appellant was at Jintoor would not establish that the appellant was at Jintoor at the material time. It was incumbent for the appellant to have established his plea of alibi, since such a plea has been specifically taken by the appellant in his written statement, which he has filed. The appellant has failed to prove the aforesaid plea and in fact has suggested that deceased Asmita might have died on account of a forcible entry being effected by an intruder, who had robbed Asmita of her jewellery. The appellant, according to us, has drp {8} Cri. Appeal No.153/2010 not been able to establish that Asmita was wearing jewellery, which is alleged to have been stolen on the night when she had met with her death. In absence of such reliable evidence, it cannot be suggested that Asmita had died at the hands of some intruder, who had effected an entry in the house in order to rob her of her jewellery. There is no evidence indicating that any forcible entry had been effected in the house by some intruder. 10. The appellant had informed PW-1 Madhukar on the night of 25th July 2008 that Asmita had sustained injuries on account of fall in the well. If this was an explanation given by the appellant, the defence taken by him about death being caused by some intruders is an afterthought. The appellant, therefore, has offered a false defence, which is an additional circumstance which can be taken into consideration. The appellant had not lodged any report. It was suggested to PW-6 Kishan that the appellant had come for lodging the report, but no report from the appellant was accepted and in fact the appellant was made to sit in the police station. The aforesaid suggestion has been denied by PW-6 Kishan. A suggestion, which is denied, is not evidence and, therefore, the appellant was required to probabilized his defence that he had gone for lodging the report, but report was was accepted. Deceased Asmita had died an unnatural death in the house of the accused. The death of Asmita was custodial, as she had died within two months of her marriage with the appellant. Defence taken by the appellant is not probabilized at all. It is not the case of the drp {9} Cri. Appeal No.153/2010 appellant that when dead body was found in his house, he was not present in the house. In such circumstances, therefore, it was for the appellant to have explained the circumstance in which Asmita had died an unnatural death in the light of section 106 of the Indian Evidence Act. The appellant has not offered any reasonable or probable explanation. 11. Thus the circumstances on record clearly indicate that it is the appellant and appellant alone, who has committed murder of Asmita. There is no other explanation, whatsoever, and the circumstances so proved exclude every hypothesis of the innocence of the appellant. Trial Court has rightly convicted and sentenced the appellant. In such circumstances, therefore, we find that there is no merit in the present appeal and the present appeal deserves to be dismissed confirming the conviction and sentence. 12. Accordingly, criminal appeal is dismissed, confirming the conviction and sentence. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel153-10