: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.840 OF 1989 Saddik Imamuddin Maniyar resident of Kalamb, Tal. Karjat, Dist. Raigad. .. Appellant. V/s. The State of Maharashtra .. Respondent ..... Mr. A.P. Mundargi, Sr. Advocate with Ms. Swapna Kode for the appellant. Mr. P.S. Hingorani, APP for the State. ..... CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. DATE : 17th November, 2009 Oral Judgment : (Per B.H. Marlapalle, J.) 1. This appeal arises from the order of conviction and sentence passed by the learned Addl. Sessions Judge, Raigad, Alibag on 12.12.1989 in Sessions Case No.84 of 1986. The appeal was dismissed on 12.1.2007 by a reasoned order but none had appeared for the accused. On 6.3.2007, this Court granted further time to the appellant to surrender so as to undergo the sentence. Criminal Appeal No.1364 of 2007 filed by the appellant against the order dated 12.1.2007 came to be allowed by the Supreme Court on 5.10.2007 in terms of the following order. : 2 : “Leave granted. In view of the fact that the appellant herein was not represented before the High Court, we are of the opinion that another opportunity should be granted to him to argue the matter before the High Court. The impugned judgment is set aside and the matter is remitted to the High Court for consideration of the criminal appeal afresh. Mr. Joshi, learned Counsel assures us that on the date fixed for hearing, the appellant shall be represented by a counsel. The High Court, we are sure, shall take up the hearing, of the appeal as expeditiously as possible.” 2. The prosecution case unfolds thus. Accused No.1 Saddik Imamuddin Maniyar is the son of accused No.2 Fatamabi @ Jaitunbi Imamuddin Maniyar and he was married with the daughter of Miya Maniyar in May, 1985. The accused were staying at village Kalamb, Tal. Karjat whereas Miya Maniyar was staying at Panvel. On 10.12.1985, Miya Maniyar visited the house of Siddik Maniyar and stayed overnight and on the next day i.e. on 11.12.1985 he went back to Panvel after he had finished his shopping at Kalyan. On 12.12.1985, Miya Maniyar’s family received a message that Bayo was dead. The family of Miya Maniyar including his brother Yusuf Maniyar went to the house of the accused in the morning and noticed that there are some injuries on the person of Bayo. They suspected some foul play and Yusuf Maniyar went to the Neral Police Station and lodged a complaint stating that Bayo died an unnatural death and she was : 3 : murdered. The FIR was registered for the offences punishable under Section 302, 498-A r/w. 34 of IPC. On completion of investigation, chargesheet was filed against both the accused and as per the prosecution, accused No.1 was guilty for an offence punishable under Section 302 whereas accused No.2 was guilty for an offence punishable under Section 498-A of IPC. The prosecution examined in all 8 witnesses, whereas the accused examined one witness Shri. Mohamad Salim. In the statement recorded u/s. 313 of Cr.P.C., the accused did not raise any defence and merely denied the charges. 3. PW-4 Raju Sontakke, PW-5 Shafiq Miya Maniyar were the witnesses who were known to the family of the complainant and they were examined merely to point out that Bayo was given money by her father from time to time even by borrowing sum from PW-4 and PW-5 is the brother of Bayo. The evidence of these two witnesses need not be considered for deciding this appeal. PW-1 Yusuf Mahamad Maniyar is the complainant, PW-2 Mariyambi is his wife, PW-3 Abdul Latif is the panch witness for the inquest panchanama. PW-6 Ramesh N. Gaikwad, PW7- Dr. Iqbal Babulal Minne are the two expert witnesses and both of them have conducted postmortem. The postmortem report is at Exh.32. PW-8 PSI Salve was the Investigating Officer. The trial Court framed the following issues. : 4 : 1. Does the prosecution prove that accused No.1 Siddik committed murder of Bayo by intentionally or knowingly causing her death ? 2. Does the prosecution further prove that accused No.2 Fatamabi treated Bayo with cruelty in such a manner as to drive her to commit suicide ? Issue No.1 was answered in the affermative and issue No.2 was answered in the negative, as a result of which accused No.2 Fatamabi came to be acquitted for the offence punishable under Section 498-A of IPC. In this appeal, we are required to consider whether the prosecution proved its case beyond reasonable doubts against the present appellant-accused No.1, so as to hold him guilty of an offence punishable under Section 302 of IPC i.e. whether he committed the murder of his wife. 4. PW-6 Dr. Ramesh Gaikwad was the Medical Officer at the Primary Health Centre, Kalamb, Tal. Karjat at the relevant time and he was on duty at the said hospital on 13.12.1985. In his evidence before the trial Court he stated that on 13.12.1985, the police had sent the dead body of Bayo for postmortem to PHC, Kalamb and in the morning of the earlier day, the person was sitting as an accused in the Court came to his house and requested to see his wife. Accordingly Dr. Gaikwad visited the house of the accused, examined his wife and found that she was dead. Dr. Gaikwad returned to his house and on the next day, he informed regarding the : 5 : death of Bayo to the concerned Police station. He further stated that when he had seen Bayo for the first time in the house of the accused, he had examined her pulse, pupils and heartbeats and had also noted some injuries on her face. He along with Dr. Iqbal Minne PW-7 had performed the postmortem and signed the postmortem notes at Exh.32. In his cross- examination, he stated that the police did not mention in his statement about the injuries he had seen on the face of Bayo, when he visited the house of the accused in the morning on 12.12.1985, though he did not remember whether he had stated so to the police when his statement was recorded. He specifically denied the suggestion that there were no injuries on the face of Bayo when he had seen her on 12.12.1985 in her house. 5. PW-7 Dr. Eqbal Minne was also one of the Medical Officers at PHC, Kalamb at the relevant time and in his examination-in-chief he stated that while performing postmortem at about 2.00 p.m. on 13.12.1985 he noticed the following external injuries on the dead body. 1. C.L.W. on chin, circular ½” In diameter x skin deep clotted blood was seen. 2. C.L.W. on right little finger on palmer aspect 1½” x ½” x ½” with fracture of 1st and 2nd plalanyx. 3. Abrasion on left cheek 2” medical to left car lobule 1/3” x 1/10” x skin deep. 4. C.L.W. on right angel of mouth extending to lower lip on right side ½” x ¼” x ¼”. 5. C.L.W. on lower lip on buccal aspect at the right side just opposite of injury No.4 1/3” x 1/3” x mucus membrance deep. : 6 : 6. C.L.W. oval 1” in diameter x skin deep 1” from the base of 2nd toe on left side. 7. C.L.W. lateral to injury No.6. The skin between the injuries Nos.6 and 7 is intact which was 1/3” C.L.W. dumbel shaped 2” x ½” x skin deep margins irregular. 8. C.L.W. on left 2nd toe at the tip ½” x 1/3” x nail bed deep with absence of nail of the toe, clotted blood was seen. 9. C.L.W. on right hand ½” x ½” x ¼” on hypohenar imminence 1½” from the base of right little finger along its axis. As per him, there was no internal injury and he also found that the deceased was pregnant of 24 to 26 weeks. All the injuries were ante- mortem and in his opinion the cause of death was asphyxia due to suffocation. He clarified that the fracture of little finger (right) on 1st and 2nd phalynx would be caused due to forcible hyper extension of the little finger and it can also occur at the time of defence. There was scromucus discharge through the nostrils and subconjuctival haemorrhage in the eyes could have caused due to asphyxia. He further clarified that suffocation could occur when one is trying to obstruct air passage by the external force or it can be due to foreign body. If the third person pressed mouth and nose, then also suffocation can cause, explained the doctor. He also clarified that in case of asphyxia, petechial haemorrhage and congestion is possible and when there is asphyxia or suffocation, there is fine troth. He also opined that death could have occurred 4 to 5 hours after the last meal. He prepared and signed the postmortem note at Exh.32. The defence declined to cross-examine this witness but the Court asked some : 7 : questions, in which he stated that he did not find any marks around the neck but he did find injury to the chin. He also stated that suffocation by the deceased herself could be possible in a given case but specifically stated that in such case the death would not be as natural death. As per him, death on account of suffocation could be caused by third person and the action of other person is necessary. At this stage, the learned advocate for the accused cross-examined this witness in which process, the witness clarified that in the instant case, there was no foreign body to cause suffocation and there were external injuries around the mouth. He also stated that it would be possible for the doctors to see and locate the foreign body during the course of postmortem. He also ruled out the possibility of death due to throttling. Thus the evidence of this witness clearly proved the case of the prosecution that Bayo died on account of asphyxia due to suffocation and her death had occurred in the night of 11.12.1985, leading to 12.12.1985. The evidence of Dr. Ramesh Gaikwad, PW-6 went to prove the prosecution case that the accused had gone to him and requested him to see his wife in the morning of 12.12.1985 and claimed that his wife was unwell in his house. The presence of the accused in his house in the morning on 12.12.1985 is also proved beyond doubts by the evidence of his own witness i.e. Shri Mohamad Saleem. The trial Court has rightly discarded the evidence of this witness in support of the case of the defence that the accused was not at home when Bayo died : 8 : though such a plea was not taken by the accused in his statement recorded under Section 313 of Cr.P.C. 6. As per Modi’s Medical Jurisprudence and Toxicology, violent death resulting chiefly from asphyxia, includes death due to hanging, strangulation, suffocation and drowning (immersion). The term, suffocation, is applied to that form of death that results from the exclusion of air from the lungs, by means other than that of the compression of the neck and suffocation could be of the following types;- 1. smothering or closure of the mouth and the nostrils; 2. choking or obstruction of the air-passages from within; 3. pressure on the chest (traumatic or crush asphyxia); 4. inhalation of irrespirable gases; 5. gagging; and 6. burking. A common method of killing infants, children and weak adults is to close the mouth and the nostrils by means of the hand, bedclothes, soft pillows or mud. In the instant case, looking at the injuries, noted on the chin, the lips, little finger of the hand and the toes, it is clear that the victim had resisted the external pressure caused in the process of suffocation strangled for survival. The evidence of PW-7 shows that the external pressure was caused by the third person. The evidence brought on record by the prosecution indicates that immediately after the marriage with the deceased, the accused had shifted to a separate room, few houses away from his mother’s (accused No.2) house and cohabited with the : 9 : deceased. From the evidence of PW-1, Yusuf Mahamad Maniyar, it has also been pointed out by the prosecution that though the deceased was asking for money from time to time to her father and such amounts were paid to her by him, there was no incidents of complaint of ill-treatment or harassment to her by the accused. The fact remains that the accused was present in the house when the deceased was murdered and the defence of alibi as sought to be taken through the evidence of his sole witness has been rightly discarded by the trial Court. As per section 106 of the Evidence Act, obviously it was within the special knowledge of the accused as to how his wife was done to death. The accused raised a defence and failed to establish the same. These are the additional circumstances against him in the chain of circumstantial evidence. In these circumstances and considering the evidence of PW-1, PW-2, PW-6, PW-7 and PW-8, the conclusion drawn by the trial Court that it was the accused alone who caused the death of Bayo is required to be confirmed. 7. Mr. Mundergi, the learned Senior Counsel appearing for the appellant tried to suggest before us that the possibility of the deceased committing suicide could not be ruled out. However, the medical evidence brought on record through PW-6 and PW-7 clearly shows that the suffocation was caused by someone else and not by the deceased herself and that someone else has to be the appellant as has been held by the trial : 10 : Court. The prosecution case was therefore proved beyond doubt to hold that the accused committed the murder of his wife Bayo by suffocation and the reasoning set out by the trial Court in support of the order of conviction is required to be affirmed. On the point of sentence the trial court has awarded life imprisonment and there is no appeal against the deceased by the State. 8. In the premises, this appeal fails and the same is hereby dismissed. The order of conviction and sentence passed by the learned Addl. Sessions Judge, Raigad, Alibag on 12.12.1989 in Sessions Case No.84 of 1986 is hereby confirmed. Undoubtedly, the appellant will be entitled for set off under Section 428 of Cr.P.C., if any. [R.Y.GANOO, J.] [B.H. MARLAPALLE, J.]