drp {1} Cri. Appeal No.12/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.12 OF 2010 Rajendra s/o Shivaji Avhad APPELLANT Age-30 years, Occ-Labour R/o Jawala, Tq-Jamkhed, Dist-Ahmednagar VERSUS The State of Maharashtra RESPONDENT ....... Mr.S.P.Golegaonkar, Advocate for the appellant (Appointed) Mr.V.D.Godbharle, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 14 th June 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.) : 1. The appellant, who stands convicted for an offence punishable u/s 498A and 302 of the Indian Penal Code and sentenced to RI for one year and to pay a fine of Rs.1000/-, in default of which to undergo further RI for one month and imprisonment for life and to pay a fine of Rs.3000/- in default of which to undergo further RI for 3 months, respectively, by the Sessions Judge, Ahmednagar, by judgment and order dated 11.09.2009, in Sessions Case No.200/2008, by this appeal, drp {2} Cri. Appeal No.12/2010 questions the correctness of his conviction and sentence. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus - The prosecution had alleged that the appellant has committed murder of his wife, Reshma, by strangulating her between the night of 10.07.2008 and 11.07.2008. PW-7 Vikram Karad an ASI, attached to Jamkhed police station, drew inquest Panchanama of the dead body of deceased Reshma on 11.07.2008, in the presence of Panchas at Exhibit-29. A ligature mark was noticed around the neck of the deceased and accordingly the dead body was referred for Postmortem examination along with the requisition at Exhibit-30. On the same day, the scene of offence Panchanama was drawn in the presence of the Panchas at Exhibit-31. The scene of offence depicts that the household articles lay in scattered condition. Even the clothes were found in scattered condition in the house. The appellant came to be arrested and during the custodial interrogation, the appellant-accused expressed his desire to point out the place where the sari was hidden. Accordingly, memorandum at Exhibit-14 came to be recorded in the presence of Panchas. The appellant-accused led the police and the Pancha to his house and from beneath the tin roof of the house, produced the sari, which came to be seized vide seizure memorandum at Exhibit-15. The piece of sari, so discovered by the appellant, is at Exhibit-6. Clothes on the person drp {3} Cri. Appeal No.12/2010 of the deceased had also been seized at the time of Postmortem examination, vide seizure memorandum at Exhibit-34. The seized property was accordingly referred for chemical examination and the report of the Chemical Examination is at Exhibit-36 and Exhibit-37. The report of Chemical Analysis indicates that the clothes of the deceased and the accused were found stained with human blood though the group could not be determined. 3. The dead body of deceased Reshma was referred for Postmortem examination and the Postmortem came to be conducted by PW-6 Dr.Sanjiv Mundhe. Dr.Mundhe noticed the following external injuries - “There was ligature mark situated at the level of thyroid cartilage. It was horizontal and encircled the neck completely. Breadth of the ligature mark was ¾ cm to 1 ½ cm. Subcutaneous areolar tissue is ecchymosed. The neck muscles, laryugeal cartilages, tracheal rings were injured. There was fractured lary laryugul cartilage. All the injuries were ante mortem. “ He noticed that the stomach was empty and opined that the deceased had died 6 hours after her last meal. He has opined that the cause of death was asphyxia due to strangulation. 4. Further to the completion of the investigation, charge sheet, against the appellant, came to be filed. 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 drp {4} Cri. Appeal No.12/2010 and 498A of the Indian Penal Code. The appellant-accused denied his guilt and claimed to be tried. Prosecution, in support of its case, examined 8 witnesses. The Pancha witnesses to the memorandum as well as other Panchanamas did not support the prosecution and were declared hostile. The entire prosecution case, therefore, revolves round the testimony of PW-4 Suman, PW-5 Abhiman and PW-6 Dr.Mundhe. The trial court accepted the evidence of the prosecution and accordingly convicted and sentenced the appellant. 5. In order to effectively deal with the submissions advanced before us by Mr.S.P.Golegaonkar, learned counsel appointed on behalf of the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. PW-4 Suman and PW-5 Abhiman state that deceased Reshma was married to the appellant and was initially treated well by the appellant. After Reshma had given birth to 2 children, the appellant began to harass her on account of demand for Rs. 20,000/-. It appears that the appellant had been demanding an amount of Rs.20,000/- for the construction of house. The medical evidence of PW-6, Dr.Mundhe, clearly indicates that the deceased had died a homicidal death, on account of strangulation. The ligature mark is complete and horizontal, which would rule out of any possibility of death being suicidal. In any event, the defence of the appellant is not that Reshma had committed suicide. drp {5} Cri. Appeal No.12/2010 6. Mr.Golegaonkar, learned counsel for the appellant, who has very ably argued the appeal on behalf of the appellant, has urged before us that the circumstantial evidence is insufficient to establish the offence against the appellant, beyond reasonable doubt and, therefore, the appellant is entitled to be acquitted. Learned APP has pointed out to us that each and every circumstance, on which the prosecution has relied upon, has been proved by the prosecution and, therefore, has urged for dismissal of the appeal. 7. The evidence of PW-4 Suman and PW-5 Abhiman clearly indicates that the deceased was ill-treated by the appellant on account of demand for Rs.20,000/-. These are the only two witnesses, who have been examined in respect of an offence punishable u/s 498A of the Indian Penal Code. Though they have been cross-examined, nothing of importance has been elicited in their cross examination, which would in any manner throw a doubt on their veracity. We, therefore, find that the evidence of these witnesses can implicitly be accepted for sustaining conviction for an offence punishable u/s 498 A of the Indian Penal Code. 8. In respect of the offence punishable u/s 302 of the Indian Penal Code, the evidence of PW-6 Dr.Mundhe, in no uncertain terms, establishes that Reshma (deceased) had died a homicidal death. The dead body was found in the house of the appellant and at the time of drawing of the scene of offence drp {6} Cri. Appeal No.12/2010 Panchanama was placed in verandah. The scene of offence Panchanama further indicates that the articles in the house were scattered thereby indicating that there was struggle in the room. The house of the appellant consists of one room with Verandah in front. Thus, the prosecution has established that deceased Reshma had died a homicidal death in the house of the appellant. The death of Reshma was thus, a homicidal death. The appellant- accused in his statement u/s 313 of the Criminal Procedure Code has denied the entire prosecution case alleging that his mother-in- law had lodged a false report. The appellant-accused has not explained the circumstances leading to death of Reshma. Since the death of Reshma is not a natural death but a homicidal death, which had occurred in the house of the appellant sometime between late night and early morning, it was for the appellant to have explained the circumstances relating to the death of Reshma. Reshma had died within 6 hours of her last meal, since the stomach was empty. Even if it is presumed that Reshma had late supper between 9 p.m. and 11 p.m., yet death of Reshma was around 5 to 6 am. In such circumstances, since no witness would be available, it was for the appellant to have explained the circumstances leading to the death of Reshma. The appellant has chosen to remain silent and has not explained any circumstance. The appellant also does not claimed that he was not present in the house. Reliance is placed upon a stray admission given by PW-3 Ravindra in cross examination that the appellant was called from his work place after the incident. This does not, in any manner, drp {7} Cri. Appeal No.12/2010 even if the statement is accepted at its face value, remotely indicate absence of the appellant at the time of commission of the offence. It would only mean that when the dead body was discovered, the appellant was not in the house. In any event, the appellant has not taken such a defence. 9. We have carefully examined the submissions advanced before us by Mr.Golegaonkar, learned counsel for the appellant and learned APP. Upon considering the aforestated circumstances, according to us, the prosecution has established the offence against the appellant-accused beyond reasonable doubt. Mr.Golegaonkar, learned counsel for the appellant has relied upon the judgment of the Division Bench of this Court in the matter of “Jagannath Damaji Pol V/s State of Maharashtra” 2009 ALL MR (Cri) 2231, to which one of us (P.V.Hardas, J.) was a member, to urge before us the principles relating to the circumstantial evidence. Obviously, applying the aforestated principles, according to us, the offence has been proved by the prosecution against the appellant, beyond reasonable doubt. Further reliance is placed by the learned counsel appointed on behalf of the appellant on the judgment of the Division Bench of this Court in “Surendra Gyanchand Chawla V/s State of Maharashtra” 2006 ALL MR (Cri.) 2262 to urge before us that it is incumbent on the prosecution to prove that the deceased had died as a result of strangulation. According to us, the medical evidence clearly establishes death of deceased as a result of strangulation. drp {8} Cri. Appeal No.12/2010 10. We, therefore, find that the prosecution has proved the offence against the appellant-accused beyond reasonable doubt and there being no merit in the appeal, the present appeal deserves to be dismissed. We however, quantify the fees payable to the learned counsel appointed on behalf of the appellant at Rs. 3000/- for the able assistance rendered to this Court in deciding this appeal. Appeal is accordingly dismissed confirming the conviction and sentence of the appellant. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel12-10