IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 1117 OF 2003 Shri Bhagwan Vishwamitra Tiwari age 29 yrs, residing at C-205, Jay Shruti Co-op- Hsg.Society, Gandhi Road, Dombivli (W), Dist.-Thane (At present Lodging in Kolhapur Central Prison) ... Appellant [Orig. accused] Versus The State of Maharashtra through Vishnunagar Police Station (C.R.No.I-83 of 2001) ... Respondents. [Orig.complainant] Smt. S.A. Damle Advocate for the appellant. Smt. S.D. Shinde APP for the State- respondent. CORAM : Sri R.M.S.Khandeparkar and Sri A.A.Sayed, JJ. DATE : January 23, 2008. ORAL JUDGMENT (PER A.A.SAYED, J.) 1. This appeal arises from the judgment and order of conviction and sentence passed by the 3rd Additional Sessions Judge, Kalyan, in Sessions Case No. 25 of 2002 on 28.7.2003 whereby the Appellant- accused was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 5000/- , in default to suffer rigorous imprisonment for three months for the offence punishable under Section 302 of IPC. The Appellant- accused was also sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 3000/- , in default to suffer rigorous imprisonment for three months for the offence punishable under section 498-A r/w section 34 of the Indian Penal Code. The father of the Appellant- accused Vishwamitra Tiwari was however let off as the Trial Court did not find any case having been made out against him. 2. Brief facts which are relevant for the decision of the case are that Sunita (hereinafter referred to as ‘the deceased’) was married to Bhagwan Tiwari (hereinafter referred to as ‘the accused’) on or about 5th June, 1997. The deceased stayed with accused at his native place at Harparpoti in Chhabra District in the State of Bihar for a period of six months. Thereafter they came to Mumbai and stayed with the father of the deceased Shri Raghuvir Oza (PW-1) at Dombivali in his house for about 8/9 months. The accused was addicted to liquor and used to beat the deceased and demand monies from her. The said Raghuvir Oza thereafter arranged for a neighbouring separate flat viz: flat No. C-205 on lease for the accused and the deceased, which flat was in the same building and on the same floor, as that of Raghuvir Oza, who was staying in flat No. C-202. The accused was working in the shop of Rghuvir Oza father of the deceased Raghuvir Oza till December, 1998 and thereafter he worked in different shops for 2 to 3 months and lastly he was working in a shop at Nana Chawk, Grant Road, Mumbai, prior to the incident. 3. Inspite of arranging separate residence for the deceased and accused, the accused continued to beat the deceased and ill-treat her and demand monies from her. The deceased, therefore, used to intermittently come to reside with her father Raghuvir Oza . Thereafter the accused used to come and apologize and promise to behave himself and used to take the deceased back to their house. According to the prosecution, between 9.30 pm of 12.07.01 and 12 noon of 13.07.01, the accused committed the murder of the deceased by strangulating her by means of a nylon rope. Prior to the incident, on 12.07.01 at about 8.45 p.m. Madan Oza, the brother of the deceased and son of Raghuvir Oza, who used to stay with his father in flat No. C-202 came home from their shop and told his father Raghuvir Oza that he had seen the accused passing by their shop in a drunken state while he was in the shop, prior to the closing of thereof. Therefore at about 9.30 p.m., Raghuvir Oza went to the flat No. C-205 of the accused and the deceased and knocked the main door. The deceased however, did not open the door and inquired as to who was knocking and told her father, Raghuvir Oza to return to his house and that she and the accused were taking meals. Thereupon Raghuvir Oza returned to his flat No.C-202 which was about 10 ft away from the flat No. C-205 where the deceased and the accused were residing. 4. On the next day, i.e. on 13-07-01, Shri Raghuvir Oza went to his shop as usual at about 9 to 9.30 a.m. and at about 11.00 a.m. while he was in his shop, he received a phone call from his wife that the house of the accused and deceased was locked from outside. At about 12.00 noon, the wife of Raghuvir Oza came to the shop. Thereafter they telephoned the shop where the accused was working last i.e. at Nana Chawk, Grant Road, Mumbai when they were informed that the accused had last attended the shop about 2-3 days back 10.7.2001 and collected an amount of Rs. 300/- from his employer and did not return to work thereafter . Raghuvir Oza, thereafter tried to locate the whereabouts of the deceased and the accused with his in-laws and friends. Since his efforts proved futile, and he suspected something wrong may have happened, he contacted a keymaker one Shridhar Waghmare (PW- 8) to open the lock of the flat no. C-205. On opening the lock of the door, the dead body of the deceased was found lying in the kitchen. Shri Raghuvir Oza, thereupon lodged a complaint at Vishnunagar Police Station. 5. On the basis of the complaint, crime came to be registered and came to be investigated. Upon investigation, police came to the conclusionthat the accused and his father Vishwamitra Tiwari, the absconding accused, in furtherance to their common intention to fulfill their illegal demand of monies, had subjected the deceased to cruelty by beating and abusing the deceased and committed the murder of the deceased, 6. A charge- sheet came to be filed by the police against the accused in the Court of J.M.F.C., at Kalyan, who in turn committed the case to the Court of Sessions being an offence exclusively triable by that Court. 7. The Additional Sessions Judge, Kalyan, thereafter framed charge against the accused and his father Vishwamitra Tiwari the absconding accused, for offences punishable under Sections 498-A and 302 read with section 34 of the Indian Penal Code. The charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. The defence of the accused was that of denial. Upon the trial being conducted, the father of the accused was let off as no evidence was found against him and the accused was sentenced as stated hereinabove – hence the above Appeal by the accused. 8. We have heard the learned Counsel for the parties. The learned Counsel has taken us through the evidence and material on record. 9. The prosecution examined 12 witnesses to bring home the guilt of the accused. It is to be noted that this is a case of circumstantial evidence and no direct evidence was produced in the form of eyewitnesses. PW-1, Raghuvir Oza, who the father of the deceased, PW-6 Madan Oza, who is the brother of the deceased, PW-4 Indravati Oza, who is the wife of Madan Oza and sister in law of the deceased, have in their testimony deposed that the accused used to consume liquor and beat the accused and demand monies and frequent quarrels and cries were being heard from the flat No. C-205 where the deceased and the accused used to reside. PW-3 Shri Bhaskar Deranand Kanantur, who is their neighbour residing in flat no. C-203 and PW-12 Smt. Lalitha Sahadevan, who is their neighbour residing in flat No. C-204 have also supported the evidence of PW-1, PW-4 and PW-6 and stated that the accused was often seen in drunken state and he used to frequently beat the deceased and they could hear their quarrels. PW6 Madan Oza has brought out in his evidence that the accused used to illtreat her with the intention to fulfill his illegal demands and that monies in the form of bank drafts and cash were given to the father of the accused Vishwamitra Tiwari at Bihar. PW-7 Faruq A.R. Khan, who is the Branch Manager of Punjab National Bank, Dombivali Branch, who has been examined has confirmed the fact of issuance of the bank drafts in the name of Vishwamitra Tiwari, payable in Bihar. Pertinently the accused in his statement under section 313 CrPC, has also admitted that the bank drafts were delivered and the amounts paid to his father Vishvamitra Tiwari. There is no explanation on record as to for what purpose these amounts were taken by the father of the accused. In the circumstances, it was clearly established that the deceased was subjected to cruelty by the accused with a view to coerce her to demand money from her father’s family to give the same to the father of the accused and the Trial Court had correctly held that there was sufficient material on record to hold that the accused was guilty of offence under section 498-A of the IPC. 10. The FIR is at Exhibit 11, wherein the complainant had given the detailed account of the behaviour of the accused, his addiction to liquor, ill-treatments to the deceased, her complaining to him and his family members and lastly presence of the accused immediately prior to the death of the deceased. 11. The evidence on record clearly establishes that on 12-07-01 from 9.30 pm onwards the accused and the deceased were closeted in their matrimonial home. It was only around 12.30 pm on the next day i.e. 13-07-01 when the main door remained locked and inspite of frantic unsuccessful efforts to find the whereabouts of the deceased and the accused, that the family of the deceased suspected something wrong may have happened and accordingly a keymaker Shridhar Waghmare (PW-8) was contacted and the door to the flat no. C-205 was opened when the body of the deceased was found in the kitchen of the said flat no. C-205. The keymaker, who is an independent witness, was also examined and has deposed that when the door was opened dead body of a girl was found in the kitchen and that he also saw a nylon rope near the body. 12 It has come on record that ligature marks were found on the neck of the deceased and a nylon rope and scattered bangles were also found at the scene of the crime. This is supported by the spot and inquest panchnama. The scattered bangles are indicative of a scuffle between the deceased and the accused. The doctor who had conducted the autopsy on the body of the deceased and prepared the post- mortem report had stated in her testimony that the deceased had died as a result of asphyxia due to strangulation. She has stated that the ligature mark on the neck of the deceased may be caused if the neck is tied with nylon rope by using force and the same is likely to result in death due to stoppage of blood supply and respiration. In her cross examination she has stated that it is not possible to cause ligature marks across the neck and thereby commit suicide by putting nylon rope across one’s own neck. In the instant case, nothing is brought in the cross- examination to discredit the findings of PW 9 Dr. Mrs. Pradnya and her findings remain unshaken that the cause of death of the deceased was asphyxia due to strangulation. The Chemical Analyser’s report rules out poisoning. 13. The thrust of the argument of the Ld. Counsel for the accused is that the presence of the accused in the house at the relevant time was not proved by the prosecution. Insofar as this contention is concerned, it may be stated that PW-1 Raghuvir Oza in his deposition has categorically stated that when his son PW-6 Madan Oza had informed him that the accused had been seen by him in a drunken state near their shop prior to the closing of the shop, he went to the flat No. C-205 at about 9.30 pm on 12-07-01 and knocked the door, when the deceased did not open the door and informed him that everything was fine and that she and the accused were having dinner and asked him return to his flat. Pertinently this fact of the presence of the accused in the flat at 9.30 pm is not denied in the cross examination and it is not even suggested that the accused was elsewhere at that time. Pertinently , the accused had fled from the scene after the crime and was absconding and was ultimately arrested only on 26-09-2001, If at all the deceased had committed suicide as is suggested in the cross examination, the natural reaction of the accused would have been that he would have immediately rushed to the father of the deceased, Raghuvir Oza, who was residing just across on the same floor and informed him about the incident. Instead, the accused had fled from the spot and absconded. In the statement under section 313 of Cr.P.C of the accused nothing is stated as to explain the circumstances appearing in the evidence against him or as to where he was at the relevant time. Pertinently when the accused was asked if he wished to say anything regarding the quantum of sentence, he stated that he did not wish to state anything. Except for the suggestions in the cross- examination that the deceased may have committed suicide, there are no searching questions put in the cross- examination. The presence of the accused in the flat inn the night of 12.7.2001 is also confirmed by the neighbours Mr. Sahadevan, who has deposed that on 12.7.2001, at about 10.30 p.m. she heard the quarrels between the deceased and the accused. 14. In our view it was for the accused to explain the circumstances of the death of the deceased and as to where he was at the relevant time, and as to his conduct in fleeing from the scene of the crime which he has failed to do. In the case of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 Supreme Court Cases 681, the Apex Court whilst relying upon section 106 of the IEA, observed thus - “when an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation”. The Apex Court has further held that “in a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstance to make it complete”. The Apex Court further held that, “where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the Appellant does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime”. 15. In the case of Chandrashekharappa Vs. State of Karnataka reported in (2003) 11 Supreme Court Cases 299, it was observed by the Hon’ble Supreme Court that where the wife was found with a mark of ligature round her neck and the accused and the deceased were the only two insiders of the house at the material point of time when the deceased met with her unnatural death by strangulation and the accused took the plea of alibi, in such circumstances, it was for the accused to explain how the deceased met with her death and his own conduct, which the accused has failed to do. 16. In the case of Babu s/o Raveendran Vs. Babu s/o Bahuleyan and another reported in (2003) 7 Supreme Court Cases 37 the Hon’ble Supreme Court observed - “it was for the husband alone to explain the circumstances leading to the death of the wife and the circumstantial evidence of last seen together. The circumstantial evidence against the accused is that the accused and the deceased were last seen together. Last seen together in legal parlance ordinarily refers last seen in the street, at a public place, or at any place frequented by the public. But here, the last seen together is much more than that. The last seen together here is sleeping together inside the bolted room”. It was further held by the Apex Court as follows - “the Appellant and the deceased were closeted inside the room. There is no evidence of an intruder. In such a situation, the circumstances leading to the death of the deceased are shifted to the accused. It is he who knows in what manner and in what circumstances, the deceased had met her end and as to how the body with strangulation marks found its way into a nearby well. All the aforesaid circumstances taken together cumulatively lead an unerringly point only to the guilt of the accused.” 17. Applying the principles laid down in the above decisions to the case in hand and considering the facts and circumstances and the overwhelming evidence against the accused of the case, we have no hesitation to arrive at a conclusion that the accused above had committed the murder of the deceased Sunita by typing nylon rope around her neck and the deceased died as a result of asphyxia due to strangulation. 18. In the present case we find that the evidence satisfies the following tests : a) the circumstances from which the inference of guilt is drawn, is cogent and firmly established; b) those circumstances are of a definite tendency unerringly pointing towards the guilt of the accused; c) the circumstances, taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and d) the circumstantial evidence is complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence is not only consistent with the guilt of the accused, but is inconsistent with his innocence. (State of Goa Vs. Sanjay Thakran – (2007) 3 SCC 755). 19. In the result, we find no illegality, infirmity or perversity with the Judgment of the Trial Court convicting the accused of the offences under section 302 and 498-A of the I.P.Code. We therefore see no merit in this appeal. 20. Consequently, the appeal is dismissed. [R.M.S.Khandeparkar J [A.A.Sayed, J.] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.1117 OF 2003 Date of Decision : January 23, 2008. For Approval and Signature : The Honourable Mr. Justice R.M.S.Khandeparkar: The Honourable Mr. Justice A.A.Sayed : 1. Whether Reporters of Local Papers may be allowed to see the Judgment? 2. To be referred to the Reporters or not? 3. Whether Their Lordships wish to see the fair copy of the Judgment? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any Order made thereunder? 5. Whether it is to be circulated to the Civil Judges ? 6. Whether the case involves an important question of law and whether a copy of the Judgment should be sent to Nagpur, Goa and Aurangabad office? ********** 10.‰ The FIR is at exhibit 11, wherein the complainant had given the detailed account of the behaviour of the accused, his addiction to liquor, ill-treatment to the deceased, her complaining to him and his family members and lastly presence of the accused immediately prior to the death of the deceased. .‰ The learned Counsel for the petitioner sought to submit that the accused was not residing in the house where the alleged murder has taken place. In his submission he alongwith deceased Sunita were residing in Flat No.C-202 in the said building. However, on perusal of the appeal memo itself which also mentions the address of the accused as C-205 disproves the contention of the appellant.