1 CRIAPPEAL132.04.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 132 OF 2004. 1. Gorakh Ramkrushna Mourya Age 28 years (Thane Central Jail) 2. Ramkrushna Mourya Age 52 years (Thane Central Jail). All residents of Bajpayi Chawl, Hanuman Tekadi, Vevur, Taluka Palghar, Dist. Thane. .... Appellants vs. State of Maharashtra (Inspector of Police Palghar Police Station). … Respondent Mr. S.V. Marwadi for Appellants Mrs. V.R. Bhosale, APP. for Respondent CORAM : P.B. MAJMUDAR & A.A. SAYED, JJ. JUDGMENT RESERVED ON 10TH JUNE, 2011. JUDGMENT PRONOUNCED 0N 25TH JULY, 2011. JUDGMENT (PER A.A. SAYED, J.) : 1. The above appeal is preferred against the judgment and order of conviction dated 8.1.2004 passed by the 2nd Additional Sessions Judge, Palghar in Sessions Case no. 312/2001 sentencing the appellant nos. 1 and 2, who were accused nos. 1 2 CRIAPPEAL132.04.sxw and 2 respectively in the Trial Court, to undergo life imprisonment and to pay a fine of Rs. 500/-, and in default of payment of fine, to undergo R.I. of one month for offence punishable under Section 302 r/w 34 of Indian Penal Code. The appellant nos. 1 and 2 (hereinafter called accused nos. 1 and 2 respectively), alongwith original accused no. 3 were tried for the offences punishable under section 302 r/w 34 and section 498A r/w 34 of Indian Penal Code. Accused nos. 1 and 2 were however acquitted of the offence under section 498A r/w 34 of IPC. Original accused no. 3, the mother of accused no. 1, was acquitted of all offences. 2. The victim, Rukmini (hereinafter called as the deceased) was the wife of the accused no. 1. Accused no. 2 is the father of the accused no. 1. The marriage between the deceased and the accused no. 1 was solemnized on 16.12.1997. After marriage, the deceased started residing with the accused persons and the sister of the accused no. 1 at Palghar. The accused no. 1 used to run a motor cycle repair garage at Mohpark. According to the prosecution, problems arose after about 1 and 1/2 years of marriage, when the accused persons started demanding articles like colour T.V., zumka (earrings) from the deceased and the accused persons used to quarrel and beat the deceased on this score. Because of the disputes, the deceased left the matrimonial home and resided with her father for about 5-6 months. However, the deceased came back to her matrimonial home in 1999 after the accused nos. 1 and 2 visited the house of the father of the deceased and persuaded them that the deceased should come back. A few months later, accused no. 1 and 3 CRIAPPEAL132.04.sxw the deceased started residing separately in a neighbouring room in the twin chawl. From the wedlock, a daughter was born sometime in the year 2000. 3. On the fateful night of 12.04.2001, accused no.2 Ramkrishna returned to his home at 9.30 p.m. and was waiting for his son Gorakh, the accused no. 1, to have dinner. According to the information (Ex. 41) given by accused no. 2, at about 10.45 p.m. the deceased went to the neighbouring room where she use to sleep. However since the eight-month old daughter of the deceased who was in his room, started crying, he went to the room of the deceased. He noticed that the room was closed from inside and some smoke was billowing from the said room. The accused no. 2, therefore, raised loud cries and called the neighbours and the door of the room was pushed open. On entering the room he found the body of the deceased Rukmini in burnt condition lying partly in the mori (washing area of 3 X 3 ft.) and partly outside. This information was given by him to the police at about 11.45 p.m. and a case of accidental death was registered. The police arrived at the scene and carried out spot panchnama (Ex. 25) and seized a brass stove, two glass bottle lamps smelling of kerosene and burnt pieces of cloth. Inquest panchanama (Ex. 26) was carried out and one piece of cloth in half burnt condition, in the form of a ball, was found in the mouth of the deceased. The next day i.e. on 13.4.2001, the father of the deceased lodged a complaint (Ex. 47) against the accused persons stating that a ‘zumka’ (earring) was demanded by the sister of the accused no. 1 from the deceased, which the deceased refused to part with and which led to an altercation 4 CRIAPPEAL132.04.sxw and fight between the deceased and the mother of accused no. 1 and after the deceased went to her room, the accused persons went to the room and tied her hands and gagged her mouth with a piece of cloth and poured kerosene on the person of the deceased and set her ablaze and caused her death. The complaint was treated as FIR and offence was registered against the accused persons under section 498A r/w 34 and section 302 r/w 34 of Indian Penal Code. The accused persons were arrested and the clothes on their person were seized. The body of the deceased was sent for post mortem. The muddemal were forwarded for chemical analysis. During investigation P.I. Mr. Patil (P.W.8) recovered one spanner at the instance of the accused no. 1. After investigation, a charge sheet came to be filed against the accused persons. The case was thereafter remitted to the Court of Sessions. The accused persons pleaded not guilty and claimed to be tried on the charge being framed by the Sessions Court. 4. In support of it's case, the prosecution examined the eight witnesses. PW-1 Shobha Kailash Kamble, was a neighbour of the accused persons and residing in a room in the same chawl. In her deposition she has stated that she does not personally know anything about the incident. As she did not support the case of the prosecution, she was declared hostile. P.W.2 Ajid Nabib Shaikh, was examined as a panch witness in relation to seizure of clothes of the accused persons as well as seizure of spanner at the instance of accused no. 1. He too did not support the case of the prosecution and was declared hostile. P.W.3 Surendrakumar Ayodhyaprasad 5 CRIAPPEAL132.04.sxw Sharma, was a panch witness examined by the prosecution in relation to the seizure of the piece of white nylon cloth in half burnt condition with red stains, which was found in the mouth of the deceased. The said piece of cloth was produced by the police constable Chandrakant Gaikwad P.W.5 at the police station in the presence of P.W.3 after the same was handed to him by the Medical Officer after the post mortem. P.W.3 also did not support the case of the prosecution and was also declared hostile. 5. P.W. 4 Shrikrishna Jitendra Mourya, is the brother of the deceased. In his evidence, he has stated that his father, who is the complainant, expired 5/6 months back. He has stated that accused no. 1 and the deceased, after marriage, were residing at Palghar and that for a period of 1and 1/2 years after marriage, the accused persons treated the deceased well. However, thereafter the accused nos. 2 and 3 started demanding colour T.V. and zumka (earrings) from the deceased and this was brought to their notice by the deceased. Since the said accused persons did not get the said articles, quarrels arose and accused no.1 used to beat her. He has stated that the accused no.1 and deceased had a daughter of about 7 to 8 months. On the day of incident he was at his house at Udwada. At that time they received telephone call stating that the deceased and her daughter were ill and therefore, his father visited the house of the deceased. However, he did not accompany his father and he came to know about the incident later on from his father. In his cross- examination he has stated that he has not visited the house of the accused no.1 since 6 CRIAPPEAL132.04.sxw the day of the incident. He has stated that accused no.1 was residing independently with deceased and their infant daughter and that accused nos. 2 and 3 were residing separately alongwith their daughter in the accommodation in the neighbouring chawl. He has denied that except the little quarrels within the family, deceased was happy in her marital life. He has stated that he came to know through his father that after two years of the marriage, demands of articles were made by the accused nos. 2 and 3 from the deceased and that the accused no. 1 used to beat her on this score. 6. P.W.5 Chandrakant Narayan Gaikwad, Police Constable, has deposed that at the relevant time he carried the body of the deceased for postmortem. He has stated that there was a ball of cloth in the mouth of the deceased and that he has handed over the said piece of cloth in the custody of investigating officer. In the cross- examination he has stated that he carried the dead body of the deceased in the night about 1.45 a.m. to the hospital and he waited for the postmortem and on the next day he returned to the police station at noon with the said piece of cloth. He stated in the cross-examination that he was put in custody of the said piece of cloth by the medical officer after the postmortem and that the same was not given in custody to him alongwith any letter as such. 7. P.W. 6 Firoz Shaikh, who was at the relevant time attached to the police station Palghar as API, has stated in his testimony that on 12-04-2001 accused no.2 reported the incident and on the basis of the said report an entry was made in the 7 CRIAPPEAL132.04.sxw register of accidental death by the then PSO. He has stated that he visited the place of the incident and he recorded inquest panchanama in respect of the dead body of the victim and also recorded the spot panchanama of the place of the incident in presence of two panchas. After the inquest panchanama he sent the dead body for postmortem to the medical officer. He made inquiries with the neighbours residing near the place of incident and recorded their statements. He has stated that on 13-04-2001 he made inquiry with the witness Shobha Kailash Kamble (P.W.1) and recorded her statement. He has stated that one piece of white nylon cloth which was found in the mouth of dead body of the victim was produced by the police constable who had taken the dead body for postmortem, was caused to be seized by him by recording seizure panchanama in presence of two panchas. He has stated that during the investigation in presence of two panchas he has taken a demonstration in order to get himself satisfied, if the door of the house in question can be opened after putting bolt from inside and after giving pushes to the door from the outside. He has stated that in the meantime, on receipt of FIR from the father of the deceased, offence was registered against the accused persons by the then PSO in the register of the police station. He has stated that after the offence was registered, investigation was carried out by PI Mr. Patil, who was the in-charge of the police station. In his cross-examination he has stated that after the report by accused no. 2, he visited the place of the incident. He has stated that by memory he cannot say if the hook of the latch provided to the door of the house from inside was in damaged condition. He has denied that he was deposing falsely that the piece of cloth was 8 CRIAPPEAL132.04.sxw produced before him by police constable who had taken the dead body and had caused to seize the said piece of cloth by recording panchanama. 8. P.W. 7 Somnath Jayram Mali, Police Constable attached to the Palghar Police Station, has stated in his evidence that on 13-01-2001 he was on PSO duty at the police station and the complainant visited the police station and lodged the FIR and he reduced the same into writing and that on the basis of the FIR, he registered the offence and the investigation was handed over to API Shaikh. 9. P.W.8 Balkrishna Hindurao Patil, was at the relevant time the in-charge of the Palghar Police Station. He has deposed that on 13-04-2001, the offence was registered by P.W.7 the then PSO. On that day he deputed Shri Shaikh (P.W.6) on special duty and he retained the investigation of the said matter with him only. He has stated that he arrested accused nos. 1 to 3 and recorded the arrest panchanama. He has stated that at the time of arrest of the accused persons he seized the the clothes on the person of the respective accused persons by recording panchanama. On 14-04-2001 after obtaining necessary remand from the Court, he forwarded accused persons for medical examination. He made inquiries with the witnesses available and recorded their respective statements. He has stated that on 17-04-2001 while accused no. 1 Gorakh was in custody, he made statement in presence of panchas that he used one spanner to push victim who tried to come out from the washing place (mori) and expressed his desire to produce the same. Accordingly, he 9 CRIAPPEAL132.04.sxw recorded the statement made by accused no. 1 in presence of panchas. He has stated that thereafter the accused no. 1 took him and panchas in his house and he produced the spanner which was seized by him in presence of panchas. He forwarded the muddemal from time to time to Chemical Analyzer for chemical analysis. He also forwarded viscera collected by Medical Officer and sent it to the chemical analyzer as per office letter dated 19-04-2001. Thereafter, he filed the charge sheet in the Court. In his cross-examination he denied the suggestion that accused no. 1 had not expressed any desire or made any statement that he used the spanner in order to push the deceased or that accused no. 1 had expressed any desire to produce the spanner from his residence. He also denied the suggestion that the deceased had committed suicide. 10. The learned counsel appearing on behalf of the appellants submitted that there were no eye witnesses to the incident and the case of the prosecution rests solely on the circumstantial evidence. The Learned Counsel submitted that it is not in dispute that accused no. 2 was residing separately from accused no. 1. He submitted that the presence of accused no. 1 at the scene of crime has not been proved by the prosecution. He pointed out that even accused no. 2 arrived at the scene of crime only later since he was not residing in the same room where the incident took place. The learned Counsel submitted that the chain of circumstances was not complete so as to link the accused nos. 1 and 2 to the death of the deceased. Learned Counsel further submitted that the father of the deceased who was the 10 CRIAPPEAL132.04.sxw complainant was not examined inasmuch as he had at the relevant time passed away. He submitted that the brother of the deceased, P.W. 4 Shrikirshna Mourya who has been examined, has admitted that accused no. 1 and deceased were residing independently from accused no. 2. P.W. 4 has further admitted that he came to know only through his father that after two years of the marriage demands of articles were made by accused no.1 and that he had not visited the house of the deceased and accused no. 1 since the incident. Learned Counsel submitted that though the clothes of accused no.1 were seized, they were not sealed and there was no evidence indicating that they were kept separately from the other articles which contained kerosene and sent separately to the Chemical Analyzer. Learned Counsel further submitted that the recovery of the spanner and nylon piece of cloth was not proved. He submitted that though the C.A. report discloses that there were traces of kerosene on the clothes of the accused nos. 1 and 2 and that even assuming that this was an incriminating circumstance against the accused nos. 1 and 2, this circumstance has not been put to them in their statement under section 313 Cr.P.C. and therefore, this circumstance cannot be relied upon by the prosecution and the same was required to be discarded from the evidence. He pointed out that the glass bangles of the deceased were found intact at the time of making inquest panchanama which would indicate that there was no struggle and the possibility of the deceased committing suicide cannot be ruled out. The learned Counsel further pointed out that even in the complaint of the father of the deceased which was treated as FIR, he has stated that the deceased was leading a happy married life till about 1and 1/2 months 11 CRIAPPEAL132.04.sxw before the incident. He submitted that the accused nos. 1 and 2 have been acquitted of the offence under section 498A of IPC by the trial Court and no motive has been proved against the accused nos. 1 and 2 to hold them guilty of the crime. The learned Counsel submitted that P.W.1, neighbour of the accused persons, as well as P.W.2 and P.W.3, who were panch witnesses, have not supported the case of the prosecution. Learned Counsel pointed out that the trial Court has erred in drawing inferences and holding the accused nos. 1 and 2 guilty and sentencing the accused nos. 1 and 2 for offence punishable under section 302 of IPC. He therefore, urged that the judgment and order of conviction be quashed and set aside. 11. The Learned Counsel for the appellants relying upon the decision in case of Emperor Vs. Mohanlal Bababhai, (1940) XLIII BLR 163, contended that the panchanama cannot be produced on record in the examination-in-chief by police witness. The learned Counsel also placed reliance on the judgment of the Hon’ble Supreme Court in the case of Manjunath Chennabasapa Madalli Vs. State of Karnataka, 2007 ALL MR (Cri) 1123 (SC), wherein it was held that the mere fact that the deceased had died an unnatural death cannot by itself be a circumstances against the accused particularly when Section 498A has been held to be inapplicable. 12. Ld. APP on the other hand supported the impugned judgment and submitted that the appellants have been rightly convicted and the evidence on record clearly 12 CRIAPPEAL132.04.sxw brings out that the chain of circumstances, connecting the accused nos. 1 and 2 to the crime, was complete. 13. We have considered the submissions made by learned Counsel for the appellants and learned AGP and perused the record. 14. This is a case of circumstantial evidence. The inquest panchnama (Ex. 26), which is an admitted document, reveals that a ball of cloth in half-burnt condition was found in the mouth of the deceased. The cause of death of the deceased as mentioned in the post mortem report (Ex. 29) is “cardiac respiratory failure due to shock due to asphyxia due to 90 to 95% burn by flame”. The injuries in column 17 of the post mortem report (Ex. 29) reveals that there were ligature marks on the wrists of the deceased. As per the inquest panchnama (Ex. 26), the body of the deceased was found on the steps of the washing area (mori). Thus, the existence of half-burnt cloth in the form of ball gagged in the mouth of the deceased apparently to muffle any scream or cries by the deceased, coupled with the ligature marks on her wrists which suggest that her hands were tied, are clearly indicative of the fact that the death of the deceased was homicidal and not suicidal or accidental. 15. We shall first examine the role of accused no. 1 and the prosecution's case against him. It is not in dispute that the deceased was found dead in a burnt condition in her matrimonial home, which is a room in a chawl. This is evident also from the information given to the police by accused no. 2, who is the father of accused no. 1, which information was recorded as an Accidental Death Report. As per the said information given by accused no. 2, the deceased was earlier in his 13 CRIAPPEAL132.04.sxw room wherein he was residing with his wife (original accused no. 3) and his daughter and the deceased left from his room at 10.45 pm to sleep in the neighbouring room, which is the matrimonial home of the accused no. 1 and the deceased. The incident thus took place soon thereafter between 10.45pm and 11pm. At that hour of the night, particularly in a place like Palghar, it would be only natural for the accused no. 1 to be at his matrimonial home. 16. Considering the above, it was for the accused no. 1, who is the husband of the deceased, to explain the circumstances that transpired at the time which caused the death of his wife in their matrimonial home. In his statement under section 313 of Cr.P.C., accused no. 1 has however stated that he was at his garage at the relevant time when the incident occurred. However, this plea of alibi has not been substantiated by him by stepping into the witness box or examining any witness to establish that he was at his garage at the relevant time when the incident took place. 17. Section 106 of the Indian Evidence Act, 1872, provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. This is an exception to the general rule contained in section 101, namely, that the burden is on the person who asserts a fact. 18. In the case of Brijlala Pd. Sinha v. State of Bihar -AIR 1998 SC 2443, whilst dealing with the issue of alibi, it was laid down by the Apex Court that the burden of proving the plea of alibi by positive evidence lies on the accused who raises it. In the case of Vijaya Singh vs. State of U.P. - 1990 (3) SCC 190, a 3- Judge Bench of the Hon'ble Supreme Court has held that if circumstances leading to 14 CRIAPPEAL132.04.sxw alibi are within the knowledge of the accused, as provided under Section 106 of the Act, he has to establish the same satisfactorily. 19. In the case of State of West Bengal vs. Mir Mohammad Omar and others reported in AIR 2000 Supreme Court 2988, the Hon'ble Supreme Court observed in paras 31 to 33 as under: "31. The prestine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a