1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.160 OF 2008 Vitthal s/o Maruti Yempure, Age 30 years, Occu.Agril., R/o Pathrud Galli, Osmanabad, Taluka and District Osmanabad .. APPELLANTS VERSUS The State of Maharashtra .. RESPONDENT Mrs.S.S.Jadhav, Advocate for appellant Shri S.D.Kaldate, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 4th February 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellant who stands convicted for an offence punishable under Section 302 and 201 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.500/- in default to undergo further rigorous imprisonment for three months and rigorous imprisonment for five years and to pay fine of Rs.500/- in default to undergo further rigorous imprisonment for three months, respectively, by the Ad-hoc Additional Sessions Judge, Osmanabad, by judgment dated 7.2.2008, in Sessions Case No.26/2007, by this appeal questions the correctness of his conviction and sentence. 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.15 Mahadeo Garad, an A.S.I. attached to the City Police Station, Osmanabad, referred the appellant for medical examination along with the requisition at Exh.71 on 14.10.2006. The appellant was examined by P.W.14 Dr.Dhananjay Chakurkar, who noticed that the appellant had sustained 8% burn injuries. He accordingly issued the certificate at Exh.72. On the basis of the report at Exh.63, lodged by P.W.2 Satyabhama, an offence under Section 498-A, 306 read with 34 of the Indian Penal Code came to be registered vide Crime No.264/2006. P.W.10 P.S.I. Patil, on being entrusted with the investigation, visited the scene of the offence and drew the inquest panchnama at Exh.40 in the presence of P.W.5 Vijay and others. Panchnama of the scene of the offence also came to be drawn in the presence of P.W.5 Vijay and others at Exh.41. From the scene of the offence plastic can, burnt pieces of clothes and match box came to be seized. The dead body of deceased Anuradha which was found in the house of the appellant was referred for post mortem examination and post mortem was conducted by P.W.1 Dr.Prakash Kulkarni. He noticed 100% superficial to deep degree burns over the body and on internal examination, he noticed head haemorrhages red in colour 3 at a frontal region 5 x 4 cms, Parietal region central part anterior 6 x 4 cms. Next parietal region central part posterior 5 x 5 cms. He could not notice any soot particles in the respiratory passages. In the post mortem report in respect of Column 18-A as to whether the injuries which were shown were ante mortem injuries, P.W.1 Dr.Kulkarni opined “ No definite opinion possible”. The cause of death certificate which was issued at Exh.23 also states that it was not possible to give any cause of death. On the same day vide Exh.24, the skin was sent for histopathelogical examination. Ultimately, a final cause of death certificate came to be issued at Exh.29 in which it was opined that the burns found on the body were post mortem in nature and cause of death was “Head injury cerebral concussion”. Histopathelogical examination was conducted by P.W.13 Dr.Madhumita Kurudkar who has by her report at Exh.67 opined that there was no histological evidence suggestive of ante mortem burns in submitted tissue. The accused came to be arrested on 15.10.2006 and 31.10.2006 under arrest panchnamas at Exhs.52 and 53. The seized property was referred to the Chemical Analyzer through P.W.11 Agadrao. Further to the completion of investigation, a charge-sheet against the appellant and another accused came to be filed. 3. On committal of the case to Court of Sessions, trial Court vide Exh.13 framed charge against the appellant and original 4 accused No.2 for an offence punishable under Section 498-A read with Section 34 and 306 read with Section 34 of the Indian Penal Code. After recording of the evidence of P.W.1 Dr.Kurudkar, the charge came to be altered and an altered charge, for an offence punishable under Section 498-A read with Section 34, Section 306 read with Section 34, Section 302 read with Section 34 and Section 201 read with Section 34 of the Indian Penal Code came to be framed. The appellant and other accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 15 witnesses. P.W.2 Satyabhama, mother of deceased Anuradha, P.W.4 Navnath, Cousin of deceased Anuradha and P.W. 9 Ajay, brother of deceased Anuradha did not support the prosecution and declared hostile. The trial Court upon consideration of the evidence convicted and sentenced the appellant while acquitting the original accused No.2. The State has not preferred any appeal questioning the acquittal of original accused No.2. 4. P.W.1 Dr.Kulkarni has clearly explained the situation due to which the Medical Officers were on the horns of a dilemma in respect of the burn injuries. Dr.Kulkarni states that after post mortem examination, he was not in a position to comment regarding the cause of death and, therefore, viscera was preserved and skin was preserved for histopath examination to 5 determine the burns were ante mortem or post mortem. The post mortem report is at Exh.22. On receipt of the report of the Chemical Analyzer which disclosed that blood did not contain carboxyhemoglobin and no poison detected in the viscera and on receipt of the report of the histopath examination, the final cause of death came to be issued at Exh.29. Evidence of P.W.13 Dr.Kurudkar discloses the tests which were performed by her on the tissues which were received and upon such tests, issued certificate at Exh.67 that the burn injuries were not ante mortem injuries. Both the Medical Officers have been cross-examined at length but nothing of importance has been elicited in their cross- examination which would in any manner affect the credibility of their findings. From the evidence of P.W.1 Dr.Kulkarni and P.W.13 Dr.Kurudkar it emerges that deceased Anuradha had died because of head injury and the burns were post mortem burns. 5. The accused has submitted his explanation in writing and according to him at 4.00 p.m. he reached towards his house on hearing some noise and had noticed that his wife had caught fire. He states that he had gone towards her in order to extinguish the fire, fell on the floor and as a result of which he had sustained burn injuries to his legs, abdomen and hands. The aforesaid explanation of the accused in the face of the prosecution evidence is not only incredible but is false. The medical evidence 6 of P.W.1 Dr.Kulkarni and P.W.13 Dr.Kurudkar clearly establishes that deceased had died on account of head injury and the burn injuries were post mortem injuries. As per the report of the Chemical Analyzer at Exh.57, the clothes of deceased Anuradha tested positive for presence of kerosene. If the burn injuries were post mortem injuries, deceased Anuradha could not have sustained the injuries while she was alive. The explanation of the accused, therefore, on the face of it is a false explanation. The accused has not offered any explanation nor has he advanced any reasonable hypothesis in tune with the injuries sustained by deceased. 6. Mrs.Jadhav, learned Counsel for the appellant has urged before us that there is no evidence whatsoever to indicate that the appellant was the sole occupant in the house and was present at that time at the scene of the offence. It is also urged that in the absence of any evidence relating to assault of deceased Anuradha, the conviction of the appellant is unsustainable only on the basis of the medical evidence. Learned Counsel for the appellant has placed reliance on the judgment of Supreme Court in Milkiyat Singh and others v. The State of Rajasthan, AIR 1981 SUPREME COURT 1579 to urge before us that if a part of the prosecution story is found to be doubtful, the Court must examine the residue very carefully before it is relied upon. 7 According to us, even if the allegations relating to ill-treatment and evidence in respect of Section 498-A of the Indian Penal Code are brushed aside, the residue clearly establishes the findings against the appellant beyond reasonable doubt. The learned Assistant Public Prosecutor has supported the judgment of the trial Court. 7. Though P.W.2 Satyabhama, mother of deceased Anuradha did not support the prosecution, she admits in the cross- examination that when she had gone to the house of the accused after the incident, accused 1 and 2 were present in the house and she had questioned them as to how Anuradha had sustained burn injuries and the accused had replied to her that Anuradha had sustained the burn injuries on account of the excessive flame of stove. The presence of the appellant-accused in the house at the time of the incident is established not only on the basis of evidence of P.W.2 Satyabhama but also on the basis of the written reply submitted by the appellant-accused. In fact, the evidence of P.W.15 Garad who had referred the accused for medical examination clearly reveals that the accused had informed him that he had sustained injuries in an attempt to save his wife. Similar is the evidence of P.W.14 Dr.Chakurkar who had examined the accused and had issued the certificate at Exh.69. Thus, the presence of the accused at the scene of the offence at 8 that point of time is certainly established. The explanation of the appellant-accused as to how his wife Anuradha had sustained the injuries or met her death is a false explanation. In such circumstances, even if there is no evidence led by the prosecution in respect of the assault on Anuradha, the medical evidence and the fact that the appellant-accused was present in the house coupled with the false explanation given by the accused completes the chain of circumstantial evidence and leaves no manner of doubt that it was the appellant-accused who had committed murder of deceased Anuradha. In that light of the matter, therefore, we have no hesitation in dismissing the appeal and confirming the finding of guilt arrived at by the trial Court. 8. After giving our anxious consideration to the submissions advanced by the learned Counsel for the parties, according to us, there is no merit in the appeal and the appeal, therefore, deserves to be dismissed. 9. Accordingly, this Criminal Appeal is dismissed confirming the conviction and sentence of the appellant. ( SHRIHARI P.DAVARE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criapeal160.08) 9