1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.423 OF 2007 Dnyaneshwar @ Dnyandeo Rajaram Dhole, Age: 26 years, Occupation : Agriculture, R/o. Bhogan (Devi), Tq.Jintur, District Parbhani. .. Petitioner Versus The State of Maharashtra. .. Respondent ... Mr. Joydeep Chatterji, Advocate for petitioner. Mr. V.D. Godbharle, A.P.P. for respondent. ... CORAM : P.V. HARDAS AND A.V. NIRGUDE,JJ. DATE : 4th NOVEMBER, 2009. ORAL JUDGMENT : PER P.V. HARDAS, J. . The appellant who stands convicted for the offence punishable under Section 302 of the Indian Penal Code by Ad-hoc Additional Sessions Judge-2 Parbhani, by judgment dated 04-10-2007, in Session Trial Case No. 46/2007, by this appeal questions the correctness of his 2 conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : . P.W. 9 Bhimrao, P.S.I. who was attached to Jintoor Police Station, was assigned with the inquiry of A.D. No. 46/2006 which had been registered by Shri. Kamble who was then P.S.O. of Jintoor Police Station. Upon being entrusted of the inquiry of the said A.D., P.W. 9 P.S.I. proceeded to the Civil Hospital, Jintoor and drew the inquest panchnama at Exhibit-24 and scene of offence panchnama at Exhibit-41 in the presence of panch witnesses. He recorded the statement of witnesses during the aforesaid inquiry. It appears that P.W. 1 Kashibai, mother of deceased Muktabai had filed her report at the police station. On the basis of the said report, an offence vide Crime No.157/2006 came to be registered against the appellant and other 3 accused. Thereafter, on 03-11-2006 the accused came to be arrested. Statement of witnesses came to be recorded. During custodial interrogation the accused had expressed his willingness to point out the rope which was concealed by him. Accordingly, a memorandum at Exhibit-38 came to be drawn in the presence of panchas on 06-11-2006. The accused led the police and panchas to his house and handed over the rope which had been concealed by him. Accordingly, the said rope came to be seized under the panchnama at Exhibit-37. The post mortem on the dead body of the deceased Muktabai was performed by P.W. 3 Dr. Pawar. P.W. 3 Dr. Pawar noticed a ligature mark completely encircling the neck, horizontally, 1 cm in width, below thyroid cartilage, deep brownish, blue in colour. The age of ligature mark was opined by him was within 24 hours. On internal examination he had noticed subcutaneous hemorrhage under the ligature mark. He had also noticed that right lung and left lung were 4 congested and other organs were also found to be congested. Froth was present in the trachea. He noticed that right chamber was full with dark blood and left chamber was empty. He had also noticed esophagus was congested. He opined that the death of victim may have occurred after two hours of last meals. He accordingly opined that the probable cause of death was cardio respiratory failure due to asphyxia due to strangulation. The post mortem notes are at Exhibit-30. Seized articles and viscera were referred to Chemical Analyser for analysis and the report of Chemical Analyser is at Exhibit-43. Photographs of deceased Muktabai are at Exhibit-44 and 45. Upon completion of investigation, a charge sheet against the present appellant and other accused came to be filed. 3. On committal of the case to the Court of Sessions, the trial Court vide Exhibit-13 framed a charge against the appellant and four other 5 accused for the offence punishable under Section 498-A read with Section 34, 302 read with Section 34, and 304-B read with Section 34 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. The prosecution, in support of its case, examined nine witnesses. Insofar as the charge under Section 498-A and 304-B of the Indian Penal Code is concerned, the prosecution relied upon the testimony of P.W. 1 Kashibai and P.W. 2 Yamaji and P.W. 7 Narhari. Insofar as the charge under Section 302 of the Indian Penal Code is concerned, the prosecution relied upon the circumstantial evidence. The trial Court, upon consideration of evidence adduced by the prosecution and taking into consideration the defence of the accused, acquitted the appellant and other accused for the offence punishable under Sections 498-A and 304-B read with Section 34 of the Indian Penal Code. Excepting the appellant, the trial Court acquitted other accused for the offence punishable under Section 6 302 read with Section 34 of the Indian Penal Code. The appellant alone therefore came to be convicted for the offence punishable under Section 302 of the Indian Penal Code on the allegations that he had committed the murder of his wife Muktabai. 4. Since the trial Court has acquitted the appellant and other accused in respect of offence punishable under Section 498-A and 304-B read with Section 34 of the Indian Penal Code, the evidence of P.W. 1 Kashibai, P.W.2 Yamaji, and P.W. 7 Narhari is not being adverted to. Suffice it to state that after funeral of Muktabai was performed, the report at Exhibit-27 came to be lodged by Kashibai, on the basis of which the offence against the present appellant and other accused came to be registered. 5. While convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code the trial Court has found the 7 following circumstances. "(1) Deceased Muktabai had died in the house of accused i.e. while she was in the custody of the accused. (2) Deceased Muktabai had died as a result of strangulation by a rope. (3) The rope came to be recovered at the instance of the appellant. (4) The appellant had motive for killing Muktabai as relations between them were strained". 6. The evidence of P.W. 5 Mahadeo who was the neighbour of the accused reveals that the accused had awakened him and had informed him 8 that he intends to go to the hospital as his wife Muktabai was feeling "uneasiness". P.W.5 further stated that thereafter Muktabai was taken to the hospital in an Auto Rickshaw and P.W. 5 Mahadeo boarded the Auto Rickshaw and went to the hospital. Other accused had also accompanied Muktabai and the appellant in Auto Rickshaw. P.W. 3 Dr. Pawar examined Muktabai and opined that Muktabai was dead. According to P.W. 5 Mahadeo, the Medical Officer had also pointed out the ligature mark around the neck of Muktabai. When an enquiry was made with the appellant as to how Muktabai had sustained ligature mark, the accused did not volunteer any explanation. In cross examination, he has admitted that he did not know whether Muktabai was dead when she was being taken in the Auto Rickshaw from Bhogaon to Jintoor. He has admitted that the family members of accused had made efforts for taking the victim immediately to the hospital. He has admitted that he had no talk with the accused while travelling in Auto 9 Rickshaw. He has also admitted that they had reached at Jintoor Hospital around 1.00 to 1.30 a.m. He further stated that after giving intimation regarding the death of Muktabai, he had inquired from the appellant and the appellant had not stated anything to him. The explanation offered by this witness is that because at that time, Dnyaneshwar was in sorrow on account of demise of his wife. 7. The prosecution has also examined P.W. 6 Keshav, the Auto Rickshaw Driver. P.W. 6 Keshav stated that one Pandurang Shewale had called him at about 1.00 a.m. in the morning and had informed him that one patient was suffering pains and therefore was required to be taken to the hospital in a Auto Rickshaw. P.W. 6 Keshav had accordingly asked for patient to be brought near to his Auto Rickshaw. He was however informed that the patient was serious and accordingly had taken the Auto Rickshaw in the lane known as "Shewale Galli". The patient was 10 carried and was placed in the Auto Rickshaw. He has stated that the patient was the wife of the present appellant and was taken to Government Hospital at Jintoor. The mother of the appellant is alleged to have been informed that Muktabai was suffering from some ailments and therefore, her body had become cold. The Medical Officer examined Muktabai and declared that she was dead. He further stated that the Medical Officer had informed him that there was ligature mark around the neck of the victim. 8. It appears that pursuant to the questions being put to the appellant in his statement under Section 313 of the Code of Criminal Procedure, the appellant had submitted his Written Say. It is the contention of the appellant that his deceased wife Muktabai disliked doing agricultural work in the field. She was harping on the appellant to stay separate from his parents and therefore, Muktabai was unhappy when she was residing with 11 the appellant. The appellant further stated that on the day of the incident his wife Muktabai went to sleep and thereafter, woke up in the night and went to the kitchen on the pretext that she wanted to drink water. Since she did not return for considerable time, the appellant went to the kitchen and found that Muktabai had committed suicide. He accordingly summoned an Auto Rickshaw and removed Muktabai to Government Hospital at Jintoor where she was declared dead. The defence of the appellant, therefore, is that deceased Muktabai had committed suicide and her death was not homicidal. 9. Mr. Joydeep Chatterji, learned Counsel for the appellant urged before us that since the appellant and the other accused have been acquitted for the offence punishable under Section 498-A of the Indian Penal Code, the prosecution has utterly failed to prove and establish that the deceased was illtreated by 12 the accused on account of demand of money being made by the accused. It is, therefore, urged before us that there is total absence of motive. It is also urged before us that the conduct of the appellant in immediately informing his neighbour that Muktabai was unwell and the steps taken by the appellant for shifting Muktabai to hospital are clearly indicative of innocence of the appellant. It was also urged before us by Mr. Joydeep Chatterji, learned Counsel for the appellant that First Information Report is a belated report as the same was lodged after funeral of Muktabai was performed. Learned A.P.P. has supported the judgment of conviction and has urged for dismissal of the appeal. 9. In cases resting on circumstantial evidence, the prosecution has to prove each and every circumstance on which it proposes to rely. The circumstance so proved should form a complete chain which should exclude every hypothesis of innocence of the accused and 13 should be unquestionably point to the guilt of the accused. (Reference may usefully be made to the judgment of Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, A.I.R. 1984 S.C. 1622). We, therefore, propose to examine the evidence of the prosecution to determine if the prosecution has been able to prove the complete chain of circumstances and whether the chain so proved excludes every hypothesis of innocence and points to the guilt of the accused. P.W. 3 Dr. Pawar who has performed post mortem has rebutted the contention of the accused that deceased Muktabai had died as a result of suicidal hanging. In fact, the position of ligature mark which is encircling the neck itself is indicative of the fact that it was a case of strangulation and not of hanging. The material which was used for strangulation was not a soft material in the sense that ligature mark would be incomplete. Since the ligature mark is complete and 14 encircles the neck, the defence of the accused that Muktabai had committed suicide obviously is proved to be false. The explanation of the accused that deceased Muktabai had committed suicide obviously is a false explanation given by the accused. 11. Death of Muktabai occured in the morning of 02-11-2006. Though there were other inmates in the house, the accused in his explanation claimed that he was awake and he had seen deceased going to the kitchen. Though the accused has been acquitted of the offence punishable under Section 498-A of the Indian Penal Code, that would not indicate that the relations between the appellant and his wife were not strained. However, assuming that the prosecution has failed to prove motive, according to us, on that score alone, the accused is not entitled to be acquitted. It is true that in cases resting on circumstantial evidence, motive is an important circumstance. 15 In certain circumstances, failure of the prosecution to prove motive may result in the acquittal of the accused. However, this is not a rule which is to be universally applied. If other evidence is clinching and cogent and chain of circumstances is complete failure of the prosecution to prove and establish the motive would pale into insignificance. In the present case, according to us, failure of the prosecution to prove and establish motive would not be fatal to the prosecution case. 12. As pointed out above, Muktabai had died in the morning of 02-11-2006 while she was in the custody of the appellant. Death of deceased Muktabai was homicidal death and was not a suicidal death. The explanation tendered by the appellant-accused is a false explanation. In such circumstances, according to us, the chain of circumstantial evidence is so complete that it exclude every possible hypothesis of innocence of the accused and points to the guilt 16 of the accused. Thus, it was the accused and accused alone who had committed the murder of the deceased. In that background, therefore, according to us, even if the prosecution has failed in establishing motive for committing murder of his wife, the failure would pale into insignificance in the light of evidence on record. 13. Merely because the accused had promptly rushed to his neighbour and taken steps for removing deceased Muktabai to Government Hospital would not be a circumstance which would whittle down the importance of the circumstantial evidence adduced by the prosecution. In the present case, there is no delay in lodging F.I.R. However, assuming that there is delay in lodging First Information Report, that would not come to the rescue of the accused as the prosecution has established that deceased Muktabai had died a homicidal death. 17 14. After considering the rival submissions advanced before us by learned Counsel for the parties, according to us, there is no infirmity in the findings recorded by the trial Court in convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code. Since this appeal is sans merit, the appeal is dismissed, confirming the conviction and sentence of the appellant. [ A.V.NIRGUDE, J.] [ P.V. HARDAS, J.] sut/NOV09/cra-423.07