AJN 1 biIN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.46 OF 2005 Shivaji Chintappa Patil, Occuptaion : Agriculture, R/o. Panumbre Turf Warun, Taluka : Shirala, Dist. Sangli, presently languishing in Kalamba Jail at Kolhapur. ) ) ) ) ) ... Appellant (Original Accused) Versus State of Maharashtra through PSO, Kokrud Police Station CR No.13/03. ) ) .... Respondent (Orig. Complainant) Mr. S.K. Shinde i/b Mr. D.N. Salvi and Mr. S.J. Patwardhan for the appellant. Ms. M.M. Deshmukh, A.P.P. for the State. CORAM : SMT. RANJANA DESAI & R.Y. GANOO, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 25TH AUGUST, 2008. DATE ON WHICH THE JUDGMENT IS PRONOUNCED : 1ST OCTOBER, 2008. JUDGMENT:- (Per Smt. Ranjana Desai, J.) 1. The appellant was tried in the court of Additional Sessions AJN 2 Judge, Islampur at Islampur in Sessions Case No.39 of 2003 for offence punishable under section 302 of the Indian Penal Code (for short, “the IPC”) for having murdered his wife Jayshree by causing asphyxia by tying a nylon rope around her neck. 2. In short, the prosecution case is that Jayashree was married to the appellant about 8 to 9 years back. Two children were born to them. About 2 to 3 years after the marriage, the appellant started ill-treating Jayashree. He was addicted to liquor. He used to come home drunk and beat Jayashree. He used to demand money from Jayashree's mother. He had demanded money from her for purchasing bullock. That demand could not be fulfilled. The appellant started suspecting Jayashree's character and on 24/3/2003 at about 5.00 a.m. in his residential house, he killed Jayashree by tying a nylon rope around her neck which caused asphyxia. 3. In support of its case, the prosecution examined as many as nine witnesses. The prosecution examined PW-3 Anandibai, the AJN 3 mother of Jayshree, PW-1 Nivruti Kadam, the nephew of PW-3 Anandibai, PW-5 Ramchandra C. Patil, the brother of the appellant. The prosecution also examined PW-2 Raghunath Patil, who is pancha to spot panchanama (Ex-9) and PW-4 Ramchandra Patil, the neighbour of the appellant. PW-6 Dr. Kishor Patki had done postmortem of Jayshree. PW-7 ASI Shankar Nangare, PW-8 API Vishnu Pawar and PW-9 API Kashinath Patil have given the details of investigation. 4. The appellant pleaded not guilty to the charge. He denied the prosecution case. After perusing the evidence on record, learned Additional Sessions Judge convicted the appellant under section 302 of the IPC and sentenced him to suffer RI for life. The appellant has challenged the said judgment and order in this appeal. 5. We have heard, at some length, Mr. Shinde, learned counsel appearing for the appellant and Ms. Deshmukh, learned A.P.P. appearing for the State. With the help of learned counsel, we have AJN 4 gone through the record of the case. 6. Mr. Shinde submitted that learned Sessions Judge erred in convicting the appellant. He submitted that there is no eye witness to the incident in question and the prosecution case rests on the interested evidence of the relatives of Jayshree. Learned judge, therefore, erred in placing implicit reliance on the said evidence. Mr. Shinde further submitted that the evidence of the prosecution witnesses does not inspire confidence and should not have been made the basis of conviction. Mr. Shinde further submitted that the medical evidence does not substantiate the case of homicidal death. In fact, it clearly establishes suicidal death. Mr. Shinde submitted that PW-6 Dr. Patki has opined that the death was caused due to hanging. In the postmortem notes, the cause of death is shown as cardio respiratory arrest in a case of asphyxia due to hanging. He submitted that though in the advance death certificate issued by Dr. Tamboli, probable cause of death is given as death due to asphyxia due to strangulation, the postmortem notes are not consistent with this certificate. Thus, there is AJN 5 variance between the certificate issued by Dr. Tamboli, the postmortem notes and evidence of PW-6 Dr. Patki and the benefit of this variance must go to the appellant. Mr. Shinde pointed out that PW-6 Patki has stated that on the posterior part of the neck, there was no ligature mark. He has further stated that in case of suicidal hanging, the ligature mark may appear almost around the neck barring the posterior part of the neck. Therefore, in this case, the ligature marks are consistent with the theory of suicide. Mr. Shinde submitted that it was not open to learned trial judge to substitute his own opinion in place of opinion of the doctor. In support of this submission, learned counsel relied on the judgment of the Supreme Court in State of U.P. v. Shanker, AIR 1981 SC 897. Learned counsel submitted that in the circumstances, the impugned judgment and order be set aside and the appellant be set at liberty. 7. Ms. Deshmukh, learned A.P.P., on the other hand, submitted that the evidence of the prosecution witnesses read with medical evidence unmistakably establishes that the death of Jayashree is AJN 6 homicidal. Learned A.P.P. submitted that the presence of the appellant in the house is not denied by him. The incident has taken place in the house. It was, therefore, incumbent upon the appellant to explain the incriminating circumstances which were within his special knowledge as required by section 106 of the Indian Evidence Act. His failure to do so provides an additional link in the chain of proved circumstances against him. In this connection, learned counsel relied on the judgment of the Supreme Court in State of Rajasthan v. Kashiram, 2006 12 SCC 262. Learned counsel submitted that in the circumstances, no interference is necessary with the impugned judgment and order. 8. Since there is no eye-witness to the incident, it is necessary to see what is the circumstantial evidence brought on record by the prosecution. The prosecution is relying upon the history of ill- treatment meted out by the appellant to Jayashree, his presence in the house when the incident took place, his conduct of not disclosing incriminating circumstances, which were within his special knowledge and his conduct of not reporting the death of AJN 7 Jayashree to anyone and the evidence of PW-6 Dr. Patki. 9. Before we go to the evidence of prosecution witnesses, it is necessary to bear in mind that except the doctor, others are rustic witnesses. They are prone to exaggeration. Their evidence cannot be discarded because of some exaggeration if as regards the core of the prosecution case, it appears to be truthful. In this connection, we may usefully refer to the observations of the Supreme Court in Shanker's case (supra). Following are the relevant observations of the Supreme Court. “Time and again, this Court has pointed out that in this country it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is the function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is tainted to the core, the falsehood and the truth being inextricably intertwined, that the Court should discard his evidence in toto.” 10. It is necessary to read the evidence of the prosecution AJN 8 witnesses in the light of the above observations of the Supreme Court. The background of the incident is narrated by PW-3 Anandibai – the mother of Jayashree. In her evidence, Anandibai stated that 2-3 years after marriage, the appellant started subjecting Jayashree to cruelty. He used to consume liquor and beat her. The appellant had initially demanded Rs.1,000/- from her. Thereafter, he started demanding Rs.7,000/- to purchase a bullock. He started suspecting Jayashree's character and beating her. Suggestion made in the cross-examination that Jayashree was a pampered daughter, that she was not adjusting with her husband's family and that she was not pulling on well with her in- laws is denied by Anandibai. About the ill-treatment meted out to Jayashree by the appellant, no omissions have been brought on record. In our opinion, Anandibai's evidence on this aspect can safely be accepted. As regards the incident in question, Anandibai stated that the brother of the appellant came to her house on the day of the incident and reported that Jayashree is lying on the ground because of snake bite. Therefore, all of them went to the appellant's house where they noticed the dead body of Jayashree. AJN 9 There was black brown circle around Jayashree's neck and a rope was lying near the dead body. Anandibai further stated that PW-1 Nivruti, son of her sister-in-law asked the appellant the cause of death to which he replied that he was not happy with Jayashree's character and, hence, he murdered her. However, in the cross- examination, an omission has been brought on record about this extra-judicial confession. Therefore, it is not possible to place reliance on the alleged extra-judicial confession which appears to be exaggeration made by Anandibai. Being mother of Jayashree, Anandibai has tried to improve her version in the court. But this exaggeration does not dislodge her consistent evidence about the ill-treatment meted out by the appellant to Jayashree and the presence of the appellant in his house at the time of incident, which is corroborated by PW-1 Nivruti. 11. PW-1 Nivruti is the cousin of Jayashree. In his evidence, Nivruti stated that the appellant was addicted to liquor. He had taken Rs.1,000/- from Anandibai to purchase a buffalo. About month or two prior to the incident, the appellant was demanding AJN 10 Rs.7,000/- from Anandibai as he wanted to purchase a bullock. Anandibai could not pay that amount and, therefore, the appellant started subjecting Jayashree to cruelty on the pretext that she was unchaste. About demand of Rs.7,000/- omission has been brought on record in the cross-examination of Nivruti. Nivruti further stated that on the day of the incident, the appellant's brother came to his house and told him that Jayashree had been murdered and, hence, all of them went to the appellant's house where they saw dead body of Jayashree on her bed with a rope lying nearby. He further stated that he asked the appellant about Jayashree's death and the appellant replied that he had murdered Jayashree. From the cross-examination of Nivruti, it is evident that he remained at the spot of incident and acted as pancha to inquest panchnama. He did not tell the police that brother of the appellant had told him that Jayashree was murdered and that Jayashree was lying on the bed with a rope lying near her. Thus, there are several omissions in his statement. He has improved his version in the court. Learned trial judge is, therefore, right in not placing total reliance on the evidence of Nivruti. The alleged extra-judicial confession cannot AJN 11 be believed. Nivruti only lends corroboration to PW-3 Anandibai's evidence that the appellant was addicted to liquor, he used to ill- treat Jayashree and the appellant was present in the house when the dead body of Jayashree was found lying on the ground. 12. PW-4 Ramchandra Shankar Patil is the neighbour of the appellant. He stated that on the day of the incident, brother of the appellant woke him up and informed him that Jayashree was dead and requested him to inform the parents of the deceased. He saw the appellant in the crowd gathered at the scene of offence. This witness turned hostile. But his evidence supports the prosecution case as regards the presence of the appellant at the scene of offence. 13. PW-5 Ramchandra C. Patil is the brother of the appellant. He stated that on the date of the incident around 5.00 a.m., he went to the house of the appellant as he had to go to the field to harvest jawar crop. When he called out the appellant's name, the appellant opened the door and told him that Jayashree had AJN 12 committed suicide by hanging. When he saw the dead body of Jayashree lying on the ground, he told the appellant that the matter should be reported to the police. He then reported the matter to the relatives of Jayashree and went along with them to the police station and lodged complaint Ex-13. He stated that he did not notice any marital dispute or quarrel between Jayashree and the appellant. Being brother of the appellant PW-5 would obviously not admit that there was any marital discord between the two and, therefore, defence cannot take advantage of this statement. Evidence of this witness confirms the presence of the appellant in his house at the time of the incident and his conduct of not reporting Jayashree's death to anyone till this witness came to his house. 14. PW-2 Raghunath Patil acted as a pancha to spot panchnama. Spot panchanama states that a nylon rope was found near the head of Jayashree. Raghunath Patil has reiterated in his evidence that a rope was lying near the dead body of Jayashree. AJN 13 15. From the evidence discussed above, we find no hesitation in concluding that the appellant was addicted to liquor; that he used to ill-treat Jayashree, that on the date of the incident dead body of Jayashree was found lying in the house of the appellant; that a rope was found lying near the dead body of Jayashree; that the appellant was very much present in his house at the time of the incident and that the appellant did not tell anyone about the death of Jayashree till his brother came to his house at about 5.00 a.m. in the morning. He is said to have told his brother that Jayashree committed suicide. It needs to be seen whether Jayashree committed suicide or was murdered by the appellant. 16. Learned trial Judge has come to a conclusion that Jayashree died of homicidal strangulation. He has recorded that the case of the prosecution about death due to asphyxia due to strangulation (homicidal hanging or homicidal strangulation) appears to be more probable. 17. Relying on the judgment of the Supreme Court in Shanker's AJN 14 case (supra), Mr. Shinde, learned counsel for the appellant submitted that the Court cannot substitute the opinion of expert by its own conclusion. In that case, the doctor had opined that the injuries found on the child had been caused with “some sharp edged weapon including a Pharsa”. The High Court opined that the injuries could not have been caused with a Pharsa but must have been caused with a weapon having a long curved blade. In this context the Supreme Court observed that the High Court was in error in substituting its own opinion resting on conjectural premises for that of the Medical experts regarding the nature of the inflicting weapon. We must examine whether learned trial Judge has committed the same error in this case. 18. The charge conveyed to the appellant that he was suspecting the character of Jayashree and, hence, on 24/3/2003 at village Panbre Varun, Taluka Shirale, he caused the death of Jayashree by causing asphyxia by tying a nylon rope around her neck with intent to kill her knowing that such act may result in death. PW-6 Dr. Kishore Gajanan Patki was attached to Rural Hospital, Shirala, AJN 15 at the relevant time. Post-mortem of Jayashree was conducted by him along with senior medical officer Dr. Tamboli. He stated that he issued advance death certificate (Ex-15) without consulting senior medical officer in which probable cause of death was shown as ` death due to asphyxia due to strangulation (probably)'. He produced post-mortem notes (Ex-16) in which cause of death is given as “death due to cardio respiratory arrest in a case of asphyxia due to hanging.” 19. Since Dr. Patki has stated that he issued advance death certificate without consulting senior medical officer and since in that certificate cause of death is qualified by the word “probably”, we are inclined to keep it out of consideration and examine postmortem notes which have greater value since it is only after internal and external examination of the dead body that cause of death is stated therein. In paragraph 17 of the postmortem notes, it is inter alia stated that there was blackish blue to yellowish brown coloured scar on the neck with evidence of abrasion and echymotic area over the edges of the mark and the level of the ligature mark AJN 16 was at the level of thyroid cartilage. The postmortem notes further state that neck circumference was 41 cm and total length of the ligature mark was around 43 cm. In paragraph 21, it is stated that the teeth were clenched, the tongue was swollen and bitten by teeth. Dr. Patki confirmed the above findings in his evidence. He added that the ligature mark was semi circular in shape, oblique in nature and 43 cm in length but it was not present on posterior part of the neck. He confirmed that in the postmortem notes the cause of death was stated to be cardio respiratory arrest in case of asphyxia due to hanging and added that after considering the nature of injury noted around the neck, according to him it may be a case of homicidal hanging. When rope, article 1 was shown to him, Dr. Patki stated that homicidal hanging was possible by it. 20. Counsel for the appellant placed reliance on the statement made by Dr. Patki that ligature mark was not present on posterior part of the neck. He pointed out Dr. Patki' s observation that in case of suicidal hanging ligature mark may appear almost around the neck barring the posterior part of the neck as against homicidal AJN 17 death where ligature mark will appear in lesser area in comparison of suicidal hanging. Learned counsel submitted that absence of ligature mark on the posterior part of the neck establishes suicidal hanging. 21. It is not possible for us to accept this submission. Dr. Patki merely expressed the possibility of ligature mark appearing almost around the neck barring the posterior part of the neck in case of suicidal hanging. Dr. Patki did not state that in all cases where there is absence of ligature mark on the posterior part of the neck it is suicidal hanging. Dr. Patki explained that the absence of ligature mark on the posterior part may be on account of presence of the knot. Dr. Patki further stated that pressing of the tongue between the teeth may occur in all cases. Dr. Patki added that considering the nature of injury noted around the neck he was of the opinion that it may be a case of homicidal hanging. We have no reason to disbelieve Dr. Patki. Learned Judge has after considering the postmortem notes affirmed the opinion of Dr. Patki. It is, therefore, not possible to hold that learned Judge had substituted his opinion AJN 18 for the opinion of the doctor. Facts of this case cannot be compared with the facts which were before the Supreme Court in Shanker's case (supra). As we have already stated, in Shanker's case (supra) the High Court had concluded that the injuries were caused with a weapon having a long curved blade when the doctor had clearly stated that the injuries were caused with some sharp edged weapon including a Pharsa. In this case, learned Judge has taken into consideration postmortem notes and Dr. Patki's evidence and reiterated Dr. Patki's opinion. There is no substitution of doctor's opinion by the court's opinion. In our opinion, it was not necessary for learned Judge to refer to Dr. Modi's book on Medical Jurisprudence and Toxicology in such detail when Dr. Patki had not even referred to it. Without referring to it, learned Judges could have arrived at the same conclusion which he has arrived on a plain reading of the observations made in the postmortem notes and Dr. Patki's evidence. In our opinion, Dr. Patki's conclusion that there was homicidal hanging is consistent with the charge that death was caused by asphyxia due to strangulation with a nylon rope because homicidal hanging AJN 19 results in strangulation and it leads to death by asphyxia. 22. Another circumstance which supports the prosecution is the failure of the appellant to offer reasonable explanation to incriminating circumstances put to him in his statement recorded under section 313 of the Code of Criminal Procedure (for short, “the Code”). Once it is established that the dead body of Jayshree was found in the house of the appellant and this incriminating circumstance is put to him in his statement under section 313 of the Code, the appellant was bound to explain what happened during the period when he was with Jayshree in his house as the said facts were within his special knowledge. This does not mean that the burden to prove the offence which is on the prosecution shifts on the appellant. The burden of proof undoubtedly remains on the prosecution but section 106 of the Indian Evidence Act lays down the rule that when the accused does not throw any light on the facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any AJN 20 explanation, as an additional link which completes the chain. In his statement recorded under section 313 of the Code, the entire case has been put to the appellant. He was pointedly asked as to whether he wanted to say anything about the prosecution case to which he answered that he wanted to say nothing. This failure to offer explanation, in our opinion, goes a long way in establishing the prosecution case. In Kashiram's case (supra), on which the reliance is placed by learned A.P.P., the accused could not explain where he was after parting company with the deceased with whom he was last seen together. The Supreme Court held that the accused's failure to give satisfactory explanation to the incriminating circumstances which were within his special knowledge amounted to his failure to discharge the onus which lies on him under section 106 of the Evidence Act. We may quote the relevant observations of the Supreme Court : “23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he AJN 21 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 that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain.” 23. In our opinion, the above observation of the Supreme Court squarely applies to the facts of the present case. Defence has suggested