1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 2 OF 2008 Mohammad Adil, Presently lodged in Central Jail Aguada, Aguada Goa. ... Appellant versus State (through Public Prosecutor) ... Respondent Ms. Asha Dessai, Advocate for the Appellant under Legal Aid Scheme. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. CORAM : A. P. DESHPANDE & N. A. BRITTO, JJ. DATE : 16TH DECEMBER, 2008. JUDGMENT(Per N. A. BRITTO, J.) This appeal is by the accused who has been convicted for uxoricide and sentenced to life imprisonment and fine of Rs.5000/- under Section 302 I.P.C. The accused has also been convicted and sentenced under Section 201 I.P.C. to R. I. for one year and fine of Rs.2000/-. 2 2. The accused was charged and tried with an allegation that on 23-4-2005 around midnight the accused killed his wife Smt. Parveen by tying a cotton chord around her neck and by hanging her to the rafter of the house. The accused was also charged under Sections 498A and 201 I.P.C. but has been acquitted under Section 498A I.P.C. 3. In support of the charge the prosecution examined 19 witnesses. The accused examined none. Although the accused initially told the Police that the death of his wife Parveen was suicidal, the same plea appears to have been abandoned by the accused in the course of the trial and was not even adhered to at the time of recording his statement under Section 313 of the Code of Criminal Procedure, 1973. The case of the accused therefore was one of denial simpliciter. 4. The facts proved by the prosecution show that the accused and the deceased got married against the wishes of the parents of the latter but soon thereafter the parents of the deceased reconciled to the situation in as much as the residence where they were residing was arranged by the father in law of the accused. The relations between the accused and the deceased were not very happy as is evident from the N. C. Complaint-Exh.C-31 which was lodged by the deceased in respect of an incident which took place on or about 11-11-2002, and, the advice given to the accused by a social worker by name Tara Bogul/PW8, the latter having been informed about the ill treatment by the accused to the deceased. 3 As per the father-in-law of the deceased, namely Mohammad Hussein/PW12 the relations between the deceased and the accused got strained after the birth of the second daughter while according to the mother-in-law Nazbul Pantooji/PW16 their relationship got strained after about a year or so after the birth of the first child which means that the birth of her second daughter was not the reason for their strained relationship. According to Sanya/PW6 who is a neighbour and was quite a regular visitor to their house to watch T.V., the fights appeared to have been due to the drinking habits of the accused. The learned trial Court therefore was not right in concluding that their relations were strained because of birth of the second daughter. The evidence of the sister-in-law Tabussun/PW4 shows that on that fateful day, their relations were not abnormal. Learned Defence Counsel therefore contends that motive has not been proved. There is no doubt that proof of motive is always relevant and assumes special significance in a case involving circumstantial evidence and what it really does is that, if proved, it makes the case stronger but its absence does not make it weak nor does it render evidence unworthy of being accepted. In fact proof of motive is of no consequence when evidence is strong and circumstances speak loudly, boldly and clearly, like the case at hand. 5. The accused and the deceased were residing in a small room of a size of about 3.10 meters by 2.65 meters which was arranged by the father of the deceased and which belonged to Avdooth Fondekar/PW13. About 15 days prior to 4 the incident there was an incident of ill treatment by the accused and the accused having banged the head of the deceased against the wall, the deceased was compelled to leave her house along with her two children and stay with her parents. The accused, about 4 days prior to the incident, came to her parents house and assured them that the deceased would not be assaulted and brought her back home. 6. On 22-4-2005 at about 9.30 p.m. i.e. on the night of the incident Tabassun/PW4 sister of the deceased, visited the deceased and she returned with the elder daughter Naaz and at that time she found that the deceased appeared to be normal. 7. At about 10.45 p.m. the accused went to his neighbour Mohamad Ali/PW5 and called him “hallu, hallu” and the latter along with his daughter Sanya/PW6 went to the house of the accused/deceased and when Mohamad/PW5 went to the house of the accused, the accused told him that Parveen had become unconscious. He saw the deceased lying on the blanket, on the floor of the room, the accused was shivering and also rubbing Parveen's feet. Mohamod/PW5 in turn went to the house of one Usha and woke her up. The said Usha also stays next to the room of the accused and Usha and her husband went to the room of the accused and this time the accused told them that the deceased had committed suicide by hanging. Usha and the accused went to call her parents and when they 5 came, a doctor was called and according to Mohamad/PW5 the doctor who was called asked the accused as to how the deceased would have died by using such a thin chord which was tied to the rafter of the room. The doctor declared that Parveen was dead and the parents of the deceased returned to their house to be followed, after some time, by the accused with the dead body of the deceased and then the accused returned to his own house. Meantime at about 1.15 hours P.S.I. Dalvi/PW18 who was attached to Vasco Police Station, received an anonymous call that a woman had committed suicide at the last stop at New Vaddem and when he went there he found the accused at the house of his in-laws and the accused told him that the deceased had committed suicide and had brought her body to the said house. P.S.I. Dalvi/PW18 then returned to the house of the accused and the deceased and a panchanama was drawn and photographs taken which have been proved through the evidence of Pradeep/PW9 and Shaikh/PW3, respectively. 8. As per the version given by Pradeep/PW9 as well as P.S.I. Dalvi/PW18, they saw a rafter in the room which was at a height of 2.1 meters from the floor and 2 chords, namely one white of 29 inches(roughly 74 cms.) and one green of 36 inches(roughly 91.5 cms.) were hanging from the northern side of the rafter towards the floor(MO1/Exhs.1(a) and (b) respectively). These chords are also visible on the photographs taken by Shaikh/PW3. P.S.I. Dalvi/PW18 made two cuts to separate the chords from the bottom of rafter. A metal single chain was found lying on the blanket having a length of 28 inches and a white chord 6 with a knot was lying on the blanket of about 9 inches(roughly 23 cms.-Exh.3). There was another piece of chord hanging on a nail against the wall of green colour having a length of 7 inches(about 18 cms.-Exh.6). He seized the said articles. As the death had taken place within 7 years of marriage it appears that P.S.I. Dalvi/PW18 initially registered a case of unnatural death and requested the SDM to inquire into it till about 12 noon of the next date when father-in-law Mohammad/PW12 filed a complaint alleging that he suspected that his daughter was killed by the accused by tying her with a chord around her neck and with a view to destroy the evidence had shifted the dead body to his house so as to misguide them. It is then that the crime came to be registered against the accused under Sections 302, 498A, 201 I.P.C. The accused was arrested on 23-4-2005 at about 16.30 hours and was sent for medical examination. Likewise, the dead body of the deceased was sent for post mortem examination. 9. Dr. Madhu Ghodkirekar/PW14 who conducted the autopsy found two injuries on the deceased namely one pressure abrasion ligature mark completely around the neck and an abrasion of 1/4th x ½ cm. on the tip of left middle finger. As regards the first injury, Dr. Madhu stated that it was placed 2 cms. below lower border of thyroid over front of neck, 3 ½ cms. below right angle of mandible and 6 cms. below left angle of the mandible over the sides of the neck(respectively on left side and right side of neck) and also 5 cms. below right mastoid process and 8 cms. below left mastoid process. It was present at hair line level at the back of the neck. The ligature marks coming from both sides of neck, 7 joined each other at back of neck, 3 cms. towards right side of mid line in an inverted V shape manner. The total circumferential length of ligature mark was 32 cms. and width of ligature mark was 0.75 cms. The depth of ligature marks groove is uniform all over except slightly deeper on the front aspect. Patches of echymosis present at the margin of ligature marks. Patchmatization effect present in skin under ligature mark. On dissection of neck there was an appreciable diffusion of blood underneath the soft tissue neck beneath the ligature mark. Dr. Madhu Ghodkirekar/PW14 opined that the death was due to asphyxia as a result of constriction of neck vide injury no.1 which was ante-mortem at the time of death and was necessarily fatal. Dr. Madhu Ghodkirekar/PW14 opined that the death was within 24 hours of preservation of the dead body at the G.M.C. morgue. When the four pieces of chords were shown to Dr. Madhu Ghodkirekar/PW14 he opined that hanging was not possible with the same as they would not withstand the weight of the body to cause constriction of neck leading to death. He further opined that ligature mark was possible with some other ligature material strong enough to cause death. In other words, the opinion given by Dr. Madhu Ghodkirekar/PW14 rules out the probability that the deceased had committed suicide by hanging with the help of the said chords. As regards the abrasion/injury no.2 Dr. Madhu Ghodkirekar/PW14 opined that it was not likely to be caused even if the finger was caught in the knot since the chord was smooth and secondly, there were nails on the left hand finger and in case the finger was caught in the knot there would be corresponding nail injury on the left side of the neck of the deceased specially at the margin of the ligature. As regards the accused, 8 Dr. Madhu Ghodkirekar/PW14 stated that he had the following injuries:- 1. Scratch abrasion of 11 cms. length by 0.3 cms. transversely placed over the right aside of neck. 2. Scratch abrasion of 5 cms. by 0.2 cms. obliquely placed over the right side neck crossing over injury no.1. 3. Semi circular scratch abrasion red 2.1 cms. over thyroid cartilage region. 4. Scratch abrasion 1.5 cms./05 cms. over the left side neck 3 cms. lateral to the mid line. 5. Abrasion red 3/1 cms. over the left elbow. According to Dr. Madhu/PW14, the aforesaid injuries could have been caused by blunt force impact. 9. Dr. Madhu/PW14 opined that the ligature mark on the deceased could be caused by hanging, but that does not mean that it was caused by hanging. That was one of the several possibilities. Nevertheless, the prosecution has abundantly proved that the death of the deceased was due to asphyxia which could be either due to suicidal hanging i.e. death caused by suspending the body with a ligature round the neck, the constricting force being the weight of the body or part of it or 9 homicidal strangulation i.e. death caused from constricting the neck by means of a ligature or by any other means without suspending the body. The circumstantial evidence produced by the prosecution supports the prosecution story that it was caused by the second method and not the first. One fails to understand as to how P.S.I. Dalvi/PW18 initially swallowed the pill, if we may use that expression when the accused told him that the deceased had committed suicide when a bare look at the hanging chords would show that it was not possible for a body of a person of a height of 5', 4”(163 cms.) to hang from that height. 10. Admittedly, the accused and the deceased were the only adults residing in the said room and when the neighbours were called, one was alive and the other was dead. It is well said that the dead tell no tales, and, the accused who is living had to explain the injuries on himself as well as on the deceased. The accused was found shrouded in suspicion, when neighbours were called, and was enmeshed in an incriminatory network of facts and therefore it was his duty to explain the circumstances. How the deceased died was, therefore, within the exclusive knowledge of the accused and it was for him to have explained as to how she died. There is no doubt that the case is based on circumstantial evidence and the strongest circumstance which is proved by the prosecution is that the dead body is found besides the accused in a small room, where only two adults were residing and in such a situation it was for the accused to explain as to how the deceased died. It is therefore not necessary for us to deal with the authorities which the learned Counsel on behalf of the accused has relied upon, particularly 10 the case of Shivu and another v. R. G., High Court of Karnataka and another (2007 Cr.L.J. 1806) in support of the proposition that in a case based on circumstantial evidence the circumstances should be of a conclusive nature and should unerringly point out to the guilt of the accused. There could always be a single circumstance so strong, weighty and conclusive that unless satisfactorily explained, the guilt of the accused could be drawn from it. In a situation like this, the contention that the chain is not complete cannot be accepted. That takes us to section 106 of the Indian Evidence Act, 1872 which provides that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. It is therefore obvious that it was for the accused to prove that the death of the deceased was suicidal and not homicidal. Certainly this burden is not as high as that is on the prosecution to prove the prosecution case beyond doubt but it is a burden which could be discharged on balance of probabilities. 11. Before recording a conclusion that the accused failed to discharge the said burden it is necessary to refer to the case of Balram Prasad Agrawal v. State of Bihar((1997) 9 SCC 338) on which reliance has been placed by the learned Public Prosecutor and the case of Satish Nirankari v. State of Rajasthan(2007 Cri. L. J. 2983) on which reliance has been placed by the learned Counsel for the defence. 11 12. In Balram Prasad Agrawal v. State of Bihar(supra) at the time of incident the victim and the accused were in the house and death of a housewife had taken place by drowning in a well in the courtyard of her in laws' house. The Apex Court therefore observed that what happened on that night and what led the deceased falling in the well would be wholly within the personal knowledge of the accused. The Court observed that it is true that burden is on the prosecution to prove the case beyond reasonable doubt but once the prosecution is found to have shown that the accused were guilty of persistent conduct of cruelty qua the deceased spread over years, the facts which were in the personal knowledge of the accused who was present in the house on that fateful night could have been revealed by them to prove the prosecution case. The Court referred to Shambhu Nath Mehra v. State of Ajmer (AIR 1956 SC 404) and reiterated that Section 106 is an exception to Section 101 and that on the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Court also referred to another Judgment in the case of Collector of Customs, Madras and others v. D. Bhoormall ((1974) 2 SCC 544) wherein the Court had observed that “the other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered – to use the words of Lord Mansfield in Blatch v. Archer Cowp at p. 65 “according to the proof which it was in the power of one side to prove, and in the power of the other to have 12 contradicted”. Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 13. In the case of Trimukh Maroti Kirkan v. State of Maharashtra(2007 Cri. L. J. 20) it was observed that where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence showing that shortly before the commission of crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it was consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. 14. Again in Raj Kumar Prasad Tamarkar v. State of Bihar(2007 Cr. L. J. 1174) the Apex Court stated that once prosecution was able to show that at the relevant time the room in question was in exclusive occupation of the couple, the burden lays upon the respondent to show as to how death was caused to his wife. 15. In Babu, s/o Raveendran v. Babu, s/o Bahuleyan and another((2003) 7 SCC 37) the husband and wife had slept together inside the 13 bolted room on the night of occurrence and it was held that it was for the husband alone to explain the circumstances leading to the death of his wife. 16. In Satish Nirankari v. State of Rajasthan(supra) a Division Bench of Rajasthan High Court after referring to Modi's Medical Jurisprudence Toxicology, in paras 21, 22 and 23 observed as follows:- “21. In the case on hand the autopsy report of Pooja demonstrates that ligature mark above supra sternal notch in mid line transversely all round the neck was found. Haematoma on the occipital region was also seen. 22. Their Lordships of the Supreme Court in Ram Kumar Madhusudan Pathak v. State of Gujarat(AIR 1998 SC 2732):(1998 Cri.L.J. 4048) indicated that the fact that the body of the deceased with a ligature mark around the neck was found on the cot and not hanging demolishes the theory of suicide completely. 23. We are therefore of the opinion that death of Pooja was homicidal”. This case is of no assistance to the case of defence and on the contrary supports the case of the prosecution. 17. As already stated, although the accused told P.S.I. Dalvi/PW18 that the deceased had committed suicide, that story could have been believed in case it 14 was consistently taken and otherwise shown to be probable. That story has been abandoned by the accused in his statement recorded under Section 313 of the Code. Had the accused adhered to that story then it might have given some credibility even though the facts proved by the prosecution militate against the said story. Mohamod/PW5 was the first to reach the room of the accused/deceased after being called by the accused, and all that the accused told him was that the deceased had become unconscious. Fondekar/PW13 was the next and when he asked the accused what had happened the accused told him that she had fainted. He did not tell them that the deceased had hung herself from the rafter and it is only when Usha and her husband came that the accused told them that the deceased had committed suicide by hanging. The doctor when called by the father-in-law, is stated to have opined, that the deceased could not have died by using such a thin chord which was seen tied to a rafter and that is also an impression P.S.I. Dalvi/PW18 ought to have got, in case he was not naive. The accused thereafter took the dead body to the residence of her parents and accused his parents in-law that they were responsible for her death. One could understand that that allegation was made out of anger. We are unimpressed with the submission of the learned Public Prosecutor that the accused ought not have brought down the body, before the neighbours came, as if to say that the accused should have waited longer for the wife to die. Does the learned Public Prosecutor still believes that the accused hanged the deceased? Likewise, no inference of 15 whatever nature can be drawn from the fact that the accused took the dead body and kept it at the residence of his parents in law. 18. (a) Nevertheless, the story of the accused that the deceased died of hanging is belied by several circumstances. Firstly, the strings which were hanging, would touch below the chest of the deceased(if one considers that the rafter was at a height of 2.10 m, the strings were hanging at a height of 1.18 cms. and the height of deceased was about 163 cms.). Therefore, the story that the accused had removed the deceased from hanging position could not simply be accepted, notwithstanding the perception of the I.O. that the accused had hanged the deceased to a rafter which would not be an easy task without alerting the neighbours. Secondly, Dr. Madhu Ghodkirekar/PW14 had in very clear and unequivocal terms stated that the chords which were shown to him(MO1) and which were cut by PSI Dalvi/PW18 from the rafter could not have taken the weight of the dead body and hanging was not possible with those type of chords.. Moreover, in case the accused had cut the chord to save his wife certainly one piece could not have been found on the blanket and the other hanging on the wall! Thirdly, the ligature mark was found all around the neck of the deceased. Modi in his Medical Jurisprudence and Toxicology(22nd Edition) to which reference was also made in the case of Satish Nirankari v. State of Rajasthan(supra) at page 270 gives the difference between ligature marks which are due to hanging and strangulation. According to the learned author in case of hanging the ligature 16 mark is oblique, non continuous, placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchment- like, whilst in the case of strangulation the ligature mark is horizontal, or transverse, continuous round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. The ligature mark confirms to the second pattern. 19. (b) H.W.V. Cox in his