{1} Cri. Appeal No.200/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.200 OF 2010 Vilas Balbhim Kawale APPELLANT Age-35 years, Occ-Nil R/o At present in Jail, Nashik Road, Central Prison VERSUS The State of Maharashtra RESPONDENT ....... Mrs.Anuradha Mantri, Advocate for appellant (Appointed) Mrs.S.D.Shelke, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 6 th July 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. Challenge in this appeal is to the conviction of the appellant for an offence punishable u/s 302 and 498A of the Indian Penal Code and sentence of imprisonment for life and RI for 3 years, respectively, awarded by the Sessions Judge, Osmanabad in Sessions Case No.7/2008 vide judgment and order dated {2} Cri. Appeal No.200/2010 22.12.2009. 2. Prosecution unfolded its case before the trial court thus- a) On 21.09.2007, on the report (Exhibit-57) lodged by Indrajit Kawale (PW-7), Police Patil, in Dhoki police station, PW-9 Chhaya Damodhare, Station House Officer, registered AD No.55/2007. The said report (Exhibit-57) was lodged in respect of finding of dead bodies of Manisha and Sheetal, wife and daughter of the appellant. Inquiry of the said AD was entrusted to PW-10 API Ashok Satpute. b) During the inquiry, PW-10 API Satpute visited the spot of incident and drew Spot Panchanama (Exhibit-45) and seized one black colour plastic coated wire used for telephone connection. Thereafter, Inquest Panchanama (Exhibit-46 and Exhibit-47) came to be drawn on the dead bodies of Manisha and Sheetal. PW-5 Photographer Azim Tamboli took photographs of the dead bodies (Exhibit-50/1 to 50/9). Thereafter dead bodies were referred for postmortem examination. c) Dr.Madhukar Panchal (PW-6) conducted postmortem on the dead body of Manisha and had noticed following external injuries - {3} Cri. Appeal No.200/2010 1. Abrasion at left supra orbital region 1 x ¼ cm. 2. Linear abrasion at left forearm 3 in number 3. Abrasion at left hand palmar aspect multiple tiny. 4. Linear abrasion at left arm anterior medial aspect 3 x ½ cm. 5. Abrasion at left little finger 1 x ¼ cm 6. Linear abrasion at leg shin of tibia 3 in number 2 ½ x ½ cm. 7. Scratches at nose 6 in number 8. Abrasion at anterior aspect of neck 1 ½ x ½ cm cresentic. 9. Abrasion at neck right side 1 ½ x ½ cm cresentic. 10.Sub-cutaneous haxemorrhage at right side of neck. 11.Sub-cutaneous hemorrhage at left side of neck. 12.Muscles on neck are displaced black ward and upward on left side. According to the medical officer injury Nos.1 to 7 are postmortem injuries while injury Nos.8 to 12 are antemortem. During internal examination, the medical officer noticed that the brain was congested and the larynx, trachea and bronchi were oozing of frothy fluid and blood stain. Right and left lungs were congested and there was oozing of frothy fluid with blood stain. Left side chamber of heart was empty while right side heart contained blood. Tongue was bitten in between upper and lower teeth. Stomach contained about 500 ml of semisolid fluid material while small intestine contained digested fluid and large intestine distended with gas and fecal matter. The medical officer opined that Manisha died due to asphyxia due to {4} Cri. Appeal No.200/2010 throttling. Accordingly, postmortem report (Exhibit-54) was prepared. d) Dr. Kisan Lomate (PW-8), performed postmortem on the dead body of Sheetal and noticed following external injuries on the dead body. 1. Scratches at right cheek 4 in number 1 x ¼ cm. 2. Scratches at right arm 1 ½ x ¼ cm 4 in number. 3. Abrasions at right side abdomen linear 6 x ¼ cm, 5 in number. 4. Abrasion at left lateral aspect of neck 1 x ¼ cm crescentic. 5. Hemorrhages in subcutaneous tissue at right side of neck. 6. Hemorrhages in subcutaneous tissue at left side of neck. 7. Muscles at left side of neck are displaced backward and upward. According to the medical officer, injury Nos.1 to 3 are postmortem while injury Nos.4 to 7 are antemortem. During internal examination, he noticed that the brain as well as both lungs were congested and there was oozing of frothy fluid with blood stains from both the lungs. Left side chamber of the heart was empty while right side contained blood. It was opined that death of Sheetal caused due to asphyxia due to throttling. Accordingly, postmortem report (Exhibit-62) came to be prepared. {5} Cri. Appeal No.200/2010 e) On 21.09.2007, on the complaint (Exhibit-38) of PW-1 Anusaya, an offence at crime No.166/2007 came to be registered against the appellant and others u/s 498A and 302 r/w 34 of the Indian Penal Code. PW-10 API Ashok Satpute carried out the investigation of the said crime. On 21.09.2007 itself statements of certain witnesses were recorded by the police and on the same day the appellant and 3 others were put under arrest vide arrest Panchanama (Exhibit-66 to 69). A communication was addressed to Engineer, MSEB to ascertain as to whether the death was possible due to electric shock. On 22.09.2007 statements of some more witnesses were recorded. During the investigation a communication was also forwarded to Terna Sugar Factory, requesting to furnish information as to whether the appellant was on duty on the intervening night of 20th and 21st September 2007 or not. Accordingly, it was informed that as per the muster roll, the appellant was not on duty during the said period. During further investigation viscera was forwarded to the Chemical Analyzer. On completion of the investigation, charge sheet came to be filed against the appellant and others before the Chief Judicial Magistrate, Osmanabad. f) On being committal of the case to the Court of Sessions, trial court framed charge (Exhibit-24) against the appellant and four others for an offence punishable u/s {6} Cri. Appeal No.200/2010 498A and 302 r/w 34 of the Indian Penal Code. The accused pleaded not guilty to the charge and claimed to be tried. Prosecution, in support of its case, had examined in all 13 witnesses. Defence of the accused was of total denial and their false implication. On appreciation of the evidence, trial court acquitted original accused No.2 to 5 of all the charges, however convicted the appellant as aforestated. Admittedly, neither the State nor the original complainant has questioned the acquittal of the other accused persons. In the premise, we restrict ourselves in respect of the conviction and sentence of the appellant only. 3. Considering the submissions advanced before us by learned counsel for the appellant and that of learned APP and on perusal of the record, it is clear that the case of the prosecution rests on circumstantial evidence. These circumstances are - 1. Deceased Manisha and Sheetal, wife and daughter of the appellant were residing with the appellant, separately from other family members. 2. Deaths of Manisha and Sheetal are unnatural and the same are homicidal and not accidental. 3. Deaths of Manisha and Sheetal occurred during the intervening night of 20th and 21st September 2007 and at that time they were in the custody of the appellant. 4. Deceased Manisha was being tortured by the appellant on {7} Cri. Appeal No.200/2010 account of illegal demand from her parents. 5. A false report was lodged with the police that at the relevant time the appellant was not present at the spot and he was attending his duty in Terna sugar factory, when in fact he was absent from his duty. 6. The appellant has made extra judicial confession before PW-12, admitting his guilt. 4. For better appreciation of the submissions advanced before us by the learned counsel for the appellant and learned APP, it may be useful to advert to the evidence of the witnesses examined before the trial court. 5. From the evidence of PW-6 Dr.Panchal and PW-8 Dr.Lomate, who have conducted postmortem on the dead bodies of Manisha and Sheetal, it is clear that deaths of both the deceased are homicidal. Though learned counsel for the appellant has urged that considering the recitals of the spot Panchanama it is clear that both the dead bodies were found on the bed and a live electric wire was hanging over them and hence it can safely be inferred that deaths of both the deceased are accidental, yet we are not in agreement with this submission for the reason that it is categorically opined by both the medical officers, who have performed postmortems, that ligature marks were found around necks of both the deceased coupled with the fact that one chamber of heart of both the deceased was empty while the other was filled {8} Cri. Appeal No.200/2010 with blood, indicating that deaths are caused due to asphyxia and therefore, it was categorically opined by the medical experts that deaths of both the deceased are homicidal due to asphyxia due to throttling and the burn injuries found on the person of both the deceased were not antemortem. To discard the opinion of medical experts, nothing is brought on record to show that the opinion given by the medical experts is contrary to the medical jurisprudence. Thus, it can safely be inferred that deaths of both the deceased are homicidal and not accidental, as claimed by the appellant. 6. It is not disputed by the appellant that both the dead bodies were found in the house of the appellant and it is also not disputed that deaths occurred in the intervening night of 20th and 21st September 2007 and it has also brought on record that both the deceased were residing with the appellant, separately from other family members. 7. At this stage, it may be useful to advert to the evidence of PW-1 Anusayabai (Complainant), mother of the deceased. She states that it was second marriage of both the appellant and deceased Manisha. The appellant has divorced his first wife and was paying maintenance to her. The appellant was serving in Terna Sugar Factory. The couple was blessed with one daughter out of the said wedlock. After about 6 months of the birth of the child, the appellant and his relatives started harassing Manisha for the {9} Cri. Appeal No.200/2010 demand of Rs.30,000/- on the ground that salary of the appellant was not regular and additionally he has to pay maintenance to his first wife. Deceased Manisha used to inform about the ill-treatment given to her by the appellant and his relatives, on phone to her parents. PW-1 had been to the house of the appellant to present idols of Goddess Laxmi at that time appellant and his relatives had asked her about money demanded by them. After she returned to her house, within 3 days she received message that Manisha and Sheetal expired. Thereafter she rushed to the house of the appellant and noticed the dead bodies and she lodged report (Exhibit-38) with Dhoki police station. In her cross examination she has stated that prior to 3 weeks of the incident Manisha had been to her maternal house and prior to that also she had stayed with her parents for about 6 to 7 months. She has admitted that appellant and the deceased were residing separately from other family members. Evidence given by PW-1 is not shaken even in her cross examination. 8. Evidence given by PW-1 Anusaya about ill-treatment to the deceased is corroborated and supported by PW-2 Mahadeo, maternal uncle of Manisha, on all material particulars. This evidence is further corroborated from the testimony of PW-4 Raju. 9. Learned counsel for the appellant has urged that considering the evidence of PW-1, PW-2 and PW-4 coupled with the Spot Panchanama, it cannot be inferred that the appellant and the {10} Cri. Appeal No.200/2010 deceased were residing separately from other family members, however, fact remains that this fact is brought on record by the appellant himself in the cross examination of these witnesses, which is supported by the recitals of the spot Panchanama (Exhibit-45). It is also established in the evidence of these witnesses that Manisha was being tortured for illegal demand, by the appellant. 10. It transpired from the evidence of PW-7 Indrajit, police Patil of the said village that on 21.09.2007 brother of the appellant had informed him that the appellant was attending duty in the said sugar factory and deceased were found lying on the cot in the house. Accordingly, he had lodged report (Exhibit-57) on the basis of which AD No.55/2007 was registered. 11. Prosecution has examined PW-11 Ram Shendge, clerk from the Administrative Department of Terna Sugar Factory, who has produced muster roll of the said factory at Exhibit-76 and 77, which indicates that the appellant was not on duty at the relevant time. Learned counsel for the appellant has urged before us that the record produced by PW-11 is incorrect, however, we are not in agreement with this submission for the simple reason that the record has to be accepted unless otherwise is proved. Entries in Exhibit-76 and 77 clearly establish that the appellant was not on duty during the intervening night of 20th and 21st September 2007, {11} Cri. Appeal No.200/2010 12. The fact that incident of death of Manisha and Sheetal took place at their residential house during the night on 20th and 21st September 2007 is not disputed and as a husband, appellant has to be in the house during the night hours, unless otherwise is proved. Nothing is brought on record by the appellant indicating his whereabouts at the relevant time. On the contrary, it is the defene of the appellant while explaining the circumstances in the statement recorded u/s 313 of the Criminal Procedure Code, that he is innocent and falsely implicated in the present case. Thus, it is clear that a false plea has been taken by the appellant that at the material time he was attending his duty, which is falsified from the record (Exhibit-76 and 77) produced by PW-11. 13. It is also useful to refer to the evidence of PW-12, Assistant Electrical Officer, MSEB and PW-13 Junior Engineer, who had visited the spot and had submitted report along with the sketch of the scene of offence. It is stated in the inspection report that illegal electric connection was taken by the appellant from the house of Balaji Kawale and there was cotton bed on the cot and hence earthing to fatal body was not easily possible. According to the experts, the black burn marks seen on the fatal bodies are not sufficient to cause fatal accident, as they are not deep. It is ultimately opined that the suspected fatal accident was doubtful and the Postmortem report and expert opinion will led to accurate cause of the death. Thus, from the report submitted by electrical expert it is clear that deaths of both the deceased have not caused {12} Cri. Appeal No.200/2010 accidentally and what is the cause of their death, we have already discussed above. 14. It is also useful to state that during the inquiry, PW-12 had recorded statement of appellant, which is scribed by PW-13. The said statement discloses that the appellant has made extra judicial confession before PW-12 that on 20.09.2007 on account of household dispute he strangulated neck of his wife and daughter and then to make a show of electrocution he brought electric wire removing a bulb and pressed the same with the live supply to the dead bodies and after he satisfied himself that both are dead, he put a quilt on the dead bodies and threw live electric wire on them. Other than the suggestion that no such statement was made by the appellant before PW-12, nothing is brought on record to disbelieve his testimony. 15. It is further urged by learned counsel for the appellant that as the case of prosecution is based on circumstantial evidence, the chain of circumstances is not established by the prosecution to point out the guilt of the appellant beyond reasonable doubt. We are afraid to accept this submission for the simple reason that from the circumstances placed on record, it is clearly established that deaths of both the deceased, Manisha and Sheetal, occurred in the intervening night of 20th and 21st September 2008 and the deaths are homicidal and at the time of their deaths, both the victims were in the custody of the appellant {13} Cri. Appeal No.200/2010 and it is further established that before the incident, Manisha was being tortured by the appellant for non satisfaction of his demand of Rs.30,000/-. It is also established that a false plea has been taken by the appellant that at the material time he was attending his duty, which is falsified from the record of the said Sugar factory. Additionally, the appellant has also made an extra judicial confession before PW-12 and PW-13. Even if the extra judicial confessions is left out of the consideration, in view of the fact that both the deceased were in the custody of the appellant and it is a custodial death, then presumption u/s 106 of the Indian Evidence Act lies in favour of the prosecution and it was for the appellant to explain as to how the deaths have occurred, which he failed to explain. 16. At this juncture, it may be useful to refer to the observations of the Supreme Court in the matter of “Sharad Birdhichand Sarda V/s State of Maharashtra” (1984) 4 SCC 116, wherein, the Apex Court, has observed that the following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence- “(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established. (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other {14} Cri. Appeal No.200/2010 hypothesis except that the accused is guilty, (iii) The circumstances should be of a conclusive nature and tendency, (iv) they should exclude every possible hypothesis except the one to be proved and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 17. In view of the above discussion, we are of the view that in the present case the prosecution has fully established the chain of circumstances, which is complete and leaves no reasonable ground for any conclusion of innocence of the appellant and it can safely be inferred that in all human probabilities, the act must have been done by the appellant only. In view of the fact that we have come to the conclusion that chain of circumstances is clearly established by the prosecution which clearly points out to the guilt of the appellant and rules out his innocence, we do not find any fault with the findings arrived at by the trial court convicting the appellant for an offence punishable u/s 302 and 498A of the Indian Penal Code. In the premise, the impugned judgment of conviction does not require any interference by this Court. 18. Consequently, the appeal, being sans merits, stands dismissed confirming the conviction and sentence of the appellant. {15} Cri. Appeal No.200/2010 Before parting with the judgment, we would like to appreciate Mrs.Mantri, learned counsel appointed on behalf of the appellant for the able assistance provided by her to us. We quantify the fees payable to learned counsel for the appellant at Rs.5000/- [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel200-10