1 Criminal Appeal No.50 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.50 OF 2010 Laxman S/o.Bhimrao Kale, Age-23 years, Occu-Agriculturist, R/o.Bansarola, Tq.Kaij, Dist. Beed APPELLANT VERSUS The State of Maharashtra RESPONDENT Smt.S.S.Jadhav h/f. Mr.P.S.Koshti, learned counsel for the appellant. Mr.S.D.Kaldate, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 07/06/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellant, who stands convicted for an offence punishable u/s. 302 of The IPC and sentenced to suffer R.I. for life and to pay of Rs.5,000/-, in default to suffer further R.I. for six months, so also convicted for an offence punishable u/s. 498-A of The IPC and sentenced to suffer R.I. for 1 year and to pay fine of Rs.1,000/-, in default to suffer R.I. for one month in Sessions Case No.41/2007, by the judgment and order dated 14/10/2009, passed by the Additional Sessions Judge-2, Ambajogai, has questioned the correctness and 2 Criminal Appeal No.50 of 2010 legality of his conviction and sentence in the present appeal. 2. Prosecution has un-folded its case before the Lower Court as follows : a) On 26/03/2007, Bhimrao Marutirao Lahane, (P.W.No.11), A.S.I., attached to Yusuf Wadgaon Police Station, at about 11.30 a.m., had registered AD No.11/2007 (Exh.40) on the report of Harishchandra Dhawale (P.W.No.3), about the death of his daughter Kishkindha, the wife of appellant. Inquiry in the said A.D.R. was entrusted to P.S.I. Balasaheb Bhapkar, (P.W.No.10). During the inquiry, he visited the spot, i.e. the house of appellant, where he drew inquesh panchnama (Exh.35). While drawing inquest panchnama, photographer Shrawan Mahadeo Gormale (P.W.No.8) was called, who took photographs (Exh.76 to 78) of the dead body. He also drew spot panchnama (Exh.36) in the presence of witnesses. Then on the complaint (Exh.41) of Harishchandra Dhawale (P.W.No.3), P.W.No.11 registered an offence vide CR No.36/2007 against the appellant and others. Then the dead body of Kishkinda was sent for post mortem. b) Dr.Prabhakar Mahadeo, (P.W.No.6) Medical Officer, attached to Primary Health Center, Yusuf Wadgaon, conducted autopsy on the dead body and prepared post mortem report (Exh.69). While conducting autopsy, he observed following injuries on the dead body of deceased. 1. There were three ligature marks seen on neck on front left and 3 Criminal Appeal No.50 of 2010 right side at level of thyroid cartilage. Total breadth of 3 ligature marks is one and half inch. Three ligature are brown, dry, shard. Along the edges of depression,ecchymosis are seen. 2. Upper ligature on right side 1½ “ below mid point of chin and angle of mandible on left side, it is below left mastoid prominence at distance of 2½”. Total transverse length is 1 ¼” and breadth. 3. Middle ligature mark on right side is 2” below angle of mandible on left side upto anterior border of sterno, left mastoid muscle, breadth is 1/2” and length is 5”. 4. Lower ligature (III rd) on right side medial to anterior portion of right sternomastoid muscle below angle of mandible by 3 inch. On left side 2 inches lateral side of anterior border of left sternomastoid muscle. Breadth ½” and length 5½”. 5. First upper ligature running transverse upwards and slightly backward from right to left. 6. Second (Middle) and third (lower) ligatures are transverse and horizontal. 7. Ligature marks are absent on back side of neck totally. 8. Below the ligature marks, subcutaneous areoper tissues are ecchymosis, congested, neck muscles and laryngeal cartilage injuries seen below the ligature marks. Along the edges of depression abrasions and ecchymosis seen. According to him, cause of death of the victim was due to asphyxia, due to strangulation. During the post mortem, he had also noticed uterus of 10 weeks approximate, containing material of congestion and embargo i.e. pregnancy. 4 Criminal Appeal No.50 of 2010 c) During further investigation, appellant came to be arrested on 27/03/2007 alongwith other accused. Statements of certain witnesses were recorded during the investigation. While in custody, on 28/03/2007, appellant made disclosure statement (Exh.18) in presence of P.W.No.1 panch witness leading to the discovery of one rope (Exh.19) concealed in cow-dung pit, near the house of one Ganpat, some packets of Nirodh (Exh.29), some packets of Mala-Dee (Contraceptive tablets) (Exh.30), which were seized under panchnama Exh.28. After completion of investigation, he filed charge sheet against the appellant and others in the Court of J.M.F.C. Kej, Dist. Beed, who committed the trial to the Court of Additional Sessions Judge, Ambejogai. d) Learned Additional Sessions Judge framed charge at Exh.9 against the appellant and 2 others for an offence punishable u/s. 498 -A r/w. 34 of The IPC and u/s. 302 of The IPC only against the present appellant. Appellant and others pleaded not guilty to the charge and claimed to be tried. To substantiate the charge against the appellant and others, prosecution has examined total 11 witnesses. Defence of appellant and others was of total denial. On appreciation of evidence of prosecution, learned Lower Court pleased to convict the appellant as stated above, while acquitted other accused from all the charges. Admittedly, State or the complainant has not challenged the judgment of acquittal against the other 5 Criminal Appeal No.50 of 2010 accused. 2. It is necessary to advert to the evidence of material witnesses examined by the prosecution for better appreciation of the submissions of learned counsel for appellant, so also the submissions of learned A.P.P. for State, who has supported the judgment of the learned Lower Court. 3. It is in the evidence of Harishchandra Dhawale (P.W.No.3), the father of deceased Kishkindha that Kishkindha married to appellant on 16/12/2006. Thereafter she was residing at her matrimonial house at Bansarola. As per tradition, Kishkindha visited his house twice. On 22/03/2007, when he telephoned to his daughter, she informed him that she is pregnant, however appellant and his relatives are insisting her for abortion. They are behaving in cruel manner with her. He has further deposed that he assured his daughter and asked her not to consume the tablets to abort the child and within 2-3 days, he will visit her house and convince her husband. He has further deposed that on 25/03/2007, he proceeded to the house of his daughter, but on his way, he took halt in village Kanadimali, which is maternal house of his wife, and same is on the way to Bansarola. On 26/03/2007, at about 9.00 a.m., he received telephone message from one Gorakh Babasaheb Naikwade that he received information from village Bansarola about death of Kishkindha. Hence he himself and Namdeo Damodhar Raut 6 Criminal Appeal No.50 of 2010 (P.W.No.4) went to village Bansarola on motor-cycle. He has further deposed that when he reached at the residence of his daughter, he noticed that his daughter was made to sit to the wall. Except her face, her total body was covered with new clothes. He had further deposed that as his daughter had informed that she was illtreated at the hands of appellant and his family, he suspect about her death. He and Namdeo (P.W.No.4) went to Yusuf Wadgaon Police Station, where he had lodged A.D. report (Exh.40). While inquest panchnama was in progress, he had noticed some black and blue marks of strangulation around the neck of his daughter. At that time, appellant and others were also present. On seeing police at the spot, appellant and his father left their residence. Then he lodged the complaint (Exh.41) in Yusuf Wadgaon Police Station. Thereafter, the dead body was sent for post mortem. He has further deposed that after he returned back to his village, he came to know from his wife Tarabai (P.W.No.7) that on phone, deceased had informed her that the appellant was suspecting that she was not pregnant from him and insisting to tell the truth otherwise he will kill her as well as the foetus. He has further deposed that on the next day, his relative Devidas (P.W.No.4), the uncle of his wife informed him about extra judicial confession made by the appellant before him, which he in turn informed to police. Careful perusal of his cross examination revealed that the evidence given by him about the illtreatment to his daughter was not shakened at all. 7 Criminal Appeal No.50 of 2010 4. P.W.No.4 Namdeo Damodhar Raut was examined by the prosecution, who accompanied Harishchandra Dhawale to the house of deceased on receipt of telephone message about death of Kishkindha. He has fully corroborated and supported the evidence given by P.W.No.3 on the material points i.e. illtreatment to Kishkindha at the hands of appellant and his relatives, as the appellant is suspecting that deceased was not pregnant from him. He has also corroborated the evidence of P.W.No.3 about his stay at his residence during the night of 25/03/2007 and receipt of phone message in the morning of 26/03/2007 about the death of Kishkindha. He has further deposed in his evidence that when they inquired with appellant as to how Kishkindha expired, appellant informed them that he do not know anything. His evidence also was not shakened anywhere on any material point during his cross examination. 5. P.W.No.5 Devidas Raut is the uncle of mother of deceased, r/o. of village Kannadmali, Tal.Kej. He has deposed that in the morning of 26/03/2007, telephone message was received at his residence about the death of Kishkindha. He has further deposed that in that night, appellant had been to his house and made extra judicial confession that since his marriage, deceased was not having menstrual cycle/period, and inspite of such physical position, she was pregnant, hence he suspected about her. He get annoyed and killed his wife with the help of rope by strangulation, and also prayed 8 Criminal Appeal No.50 of 2010 for apology and requested him to ask Harishchandra to take back his complaint. In his cross examination, certain omissions are brought on record that, “appellant told him that he should be pardoned for the offence took place at his hand.” and “appellant told him that since marriage, Kishkindha was not having menstrual cycle/period and inspite of that she was pregnant and hence he get annoyed and killed her by strangulation with rope” find no place in his statement before police. 6. P.W.No.7 Tarabai Dhawale is the mother of deceased. She has stated in her evidence that after marriage of Kishkindha, on two occasions, she had visited her house. Firstly, she had visited after 4-5 days of marriage and stayed for 3 days. At that time, Kishkindha was under menstrual cycle. Thereafter, Kishkindha visited her house after 7-8 days and stayed for 2 days. She has deposed that after marriage of Kishkindha, Kishkindha used to contact her on phone on 3-4 occasions, and at that time, she informed her that she was happy. She has further deposed that on the last call, Kishkindha had informed her about her pregnancy, and also told that appellant and his relatives are insisting her to take tablets to abort her pregnancy and the appellant continuously insisting her to abort the child as he thinks that she was not pregnant from him. On receipt of such information, she assured Kishkindha that she will sent her father to convince her in laws and asked her not to take the tablets and abort the fetus. According to 9 Criminal Appeal No.50 of 2010 her, she had received phone call about 4 days prior to the demise of Kishkindha, and at that time, her daughter Shalan was with her. She has further deposed that her daughter Kishkindha had informed her that appellant is threatening her to kill herself as well as the fetus. In the evening, she informed her husband about the illtreatment at the hands of appellant and his relatives and asked her husband to convince the appellant. Her husband assured her that within 2-4 days, he will visit the house of Kishkindha to convince the appellant. She has further deposed that on Monday, information was received on phone that Kishkindha had committed suicide. Hence she proceeded towards village Bansarola. She has further stated that on her inquiry with in laws of deceased as to what happened to Kishkindha, they were not able to inform her about the cause of death of Kishkindha. She has further deposed that she had noticed 3 ligature marks of rope around the neck of her daughter. Other than simple suggestion given to her in her cross-examination that she is giving false evidence that appellant and his relatives are insisting her daughter to consume tablets for abortion, nothing was elicited from her cross examination. 7. We have heard learned counsel for appellant and learned A.P.P. for State. From the evidence, which we have discussed above and the other evidence on record, it is clear that the case of prosecution rests on the circumstantial evidence, which circumstances are as follows : 10 Criminal Appeal No.50 of 2010 1. Death of Kishkindha took place in her matrimonial house. 2. Her husband was present during the night hours in his house alongwith the deceased. 3. No marks of rope were noticed on the beam/rafter in the room, where the incident had occurred. 4. Three horizontal marks of rope were found around the neck of the deceased. 5. No explanation is offered by the appellant as to how death of Kishkindha had occurred. It is tried to suggest during the cross examination of P.W.No.6, Medical Officer, who has conducted autopsy on the dead body of the deceased that the deceased might have hanged herself and the injuries noticed around the neck of the deceased are not of strangulation, but of the hanging by deceased herself. At this juncture, it is useful to give reference of the photographs at Exh.76 to 78, which were taken by P.W.No.8 Shrawan Gormale, while conducting the inquest panchnama of the dead body of the deceased Kishkindha. On clear perusal of these photographs, it is crystal clear that the marks of rope/strangulation are horizontal and not upward, towards the backside of the neck of the deceased. One more aspect require to be considered that the evidence of P.W.No.3, father of the deceased, P.W.No.4 brother in law of P.W.No.3 and P.W.No.7 mother of the deceased clearly demonstrate that when inquired with the appellant and others, as to how death of Kishkindha occurred, they did not explain anything. In his 11 Criminal Appeal No.50 of 2010 statement u/s. 313 of The Cr.P.C., the appellant has not offered any explanation as to how death of Kishkindha had occurred. Spot panchnama clearly demonstrates that there are no marks of any rope which was tied to the beam/rafter in the room, where the death had occurred. These facts clearly demonstrate that death of Kishkindha is not suicidal but homicidal as correctly opined by P.W.No.6 Dr. Prabhakar Mahadeo Udage that death of the deceased was caused due to asphyxia, due to ligature strangulation. 8. Once it is concluded that the death of deceased is homicidal one and from the evidence, it has come on record that during the fateful night, deceased was in the company of appellant, then this is a fit case, where presumption lies u/s. 106 of The Evidence Act in favour of the prosecution, where it is for the appellant to explain as to how death of the deceased had occurred, for which no explanation is offered by the appellant. 9. At this juncture, it is useful to give reference of the observations of the Apex Court in the matter of Shambhu Nath Mehra versus State of Ajmer, AIR 1956 Supreme Court 405, Wherein it is observed by the Apex Court that, “Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. “10. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts 12 Criminal Appeal No.50 of 2010 which he asserts, must prove that those facts exist”. Illustration (a) says - “A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.” 11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S. 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evidence that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are 13 Criminal Appeal No.50 of 2010 Attygalle V. The King, 1936 PC 169 (AIR V 23)(A) and Seneviratne versus R. 1936-3 All ER 36 at P. 49 (B). The facts of the case in hand, clearly establish that deceased Kishkindha, the victim was in the custody/company of the appellant during the night hours and her death is an un-natural death, then it is to be inferred and presumed that how Kishkindha expired, is within the exclusive knowledge of the appellant and appellant only, for which no explanation is offered by the appellant at all. Specific questions were put to that effect to the appellant in his statement u/s. 313 of The cr.P.C., to which he preferred to keep mum. Thus, according to us, the onus which was on the appellant to prove his innocence, was not discharged by him. In the premise, it is to be held that the prosecution has succeeded in proving that the death of the victim Kishkindha is a homicidal death and the appellant is the author of this homicidal death. In the premise, we do not find any fault with the findings recorded by the learned Lower Court in concluding that the appellant is guilty for an offence punishable u/s. 302 of The IPC. 10. Perusal of the evidence of P.W.No.3, father of the victim, and P.W.No.4 Namdeo which clearly reveals that there was mental torcher to deceased Kishkindha at the hands of appellant, particularly the evidence given by the mother P.W.No.7 on this point remains unchallenged in her cross examination, which is corroborating to the 14 Criminal Appeal No.50 of 2010 evidence given by P.W.No.3, father of the victim. Marriage of the victim with appellant is not under dispute. Medical evidence by way of post mortem notes establish that at the time of death of Kishkindha, she was carrying 10 weeks pregnancy, and it is the specific case made out by P.W.No.3 and P.W.No.7 that appellant was suspecting pregnancy of Kishkindha and suspecting her chastity, which also amounts to an offence of cruelty as contemplated u/s. 498-A of The IPC. 11. For these reasons, we do not find any fault with the findings recorded by the learned Lower Court while holding the appellant accused guilty for an offence punishable u/s. 302 of The IPC, so also u/s. 498-A of The IPC. In the substance, no interference is required in the conviction and sentence recorded by the learned Lower Court for the offences, which were held as proved against the appellant. In the substance, appeal sans any merit and stands dismissed accordingly. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JUNE 2011/cri.appeal 50-10