Cri. Appeal No. 14/2010 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 14 OF 2010 Satish s/o. Kondiba Gawali, Age 30 yrs., Occu. Agri., R/o. Shedgaon, Tq. Shrigonda, District Ahmednagar. ....Appellant. Versus The State of Maharashtra ....Respondent. Mrs. Sadhana Jadhav, Advocate for appellant. Mr. K.G. Patil, APP for State/respondent. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. DATED : 4th May, 2011. JUDGMENT : [ PER T.V. NALAWADE, J.] 1. This appeal is filed against the judgment and order of Sessions Case No. 11/2007, which was pending in the Court of Additional Sessions Judge, Ahmednagar. By the decision dated 15.10.2009, the appellant/accused is convicted and sentenced by the Trial Court for offences punishable under sections 302, 498-A and 201 of the Indian Penal Code. Cri. Appeal No. 14/2010 2 2. In short, the facts leading to the institution of the appeal, can be stated as follows :- (a) Complainant - Gorakh Khedkar is a resident of village Khalegaon, Tahsil Karjat, District Ahmednagar. The deceased Swati was his daughter and she was given in marriage to the present appellant on 20.5.2006. Original accused Nos. 2 and 3 are the real brothers of the appellant and accused No. 6 is sister of appellant. Accused Nos. 4 and 5 are the parents of the appellant. After the marriage, Swati started cohabiting with appellant in his village Shedgaon, Tahsil Shrigonda, District Ahmednagar. All the accused were living in the same house. Swati was treated well for about one month of the marriage. (b) Swati used to visit the house of her parents on the occasions of festival. On the occasion of "Nagpanchami" festival of the year 2006, when Swati came to the house of her parents, she disclosed that all the accused were asking her to bring Rs. one lac from her parents as they wanted to construct new house. She disclosed that for fulfilling the demand of bringing amount, they were giving taunts to her and continuously teasing her. She also complained that the accused were asking her to do heavy work and virtually Cri. Appeal No. 14/2010 3 starving her. After hearing the disclosures, the complainant called a meeting of respectable persons of his village and they advised him to call appellant to the village to convince him. The mediators tried to convince the appellant not to make such demand and not to harass Swati. Complainant also promised that he would give some money afterwards as he was not in a position to meet the demand immediately. The appellant was not convinced and he expressed displeasure. After 10 to 12 days of this meeting, when Swati was cohabiting with the appellant, uncle of the complainant visited the house of appellant and on that occasion also Swati made similar disclosures. Appellant was insisting Swati to bring amount from her parents. On the previous day of "Shravan Pola" festival, when complainant contacted accused to invite him for celebration of "Pola" festival, the accused refused to come to the house of the complainant and he also refused to send Swati. When the Complainant talked with Swati on phone, she disclosed that illtreatment was continued to her as the demand was not met with. Swati was not sent for "Pola" festival to the house of her parents. Twenty days after the "Pola" festival, complainant visited the house of appellant and on that occasion also similar disclosures were made to the complainant. On that occasion, Swati further expressed fear that there was danger to her life from the accused Cri. Appeal No. 14/2010 4 persons. (c) On 8.10.2006 after 8 p.m. the accused contacted Manisha, relative of complainant, to inform that Swati was missing since 4 p.m. of the day. The parents of Swati searched for her, but she could not be traced. On 9.10.2006 the accused/appellant gave report to Shrigonda Police Station at about 11 a.m. that dead body of Swati was found in the well, in his field. Appellant also informed about this incident to Manisha. A.D. was registered on the basis of report given by the appellant. (d) The complainant, his relatives and some persons from his village went to village Shedgaon on the morning of 9.10.2006. After learning about the finding of dead body, they went to the well. They noticed that there were injuries on arms and on the neck of the dead body. Inquest panchanama was prepared by police in the inquiry of A.D. and the dead body was referred to the Government Hospital. The post mortem was conducted on the same day and doctor gave opinion that Swati died due to asphyxia due to throttling. After learning about the cause of death, Gorakh - the complainant, gave report to police and the crime at Cr. No. 245/2006 came to be registered at about 20.30 hrs. for aforesaid Cri. Appeal No. 14/2010 5 offences on 9.10.2006. The complaint was given against the husband and his relatives. (e) On 10.10.2006 the appellant came to be arrested. Injuries were found near left eye and over right eyebrow of the accused which were fresh. Police prepared spot panchanama. Shri. Hajare, the P.I., who was attached to Shrigonda Police Station, has made the investigation. He recorded the statements of the witnesses. Viscera was preserved and it was sent to CA office. After completion of the investigation, chargesheet came to be filed in the Court of Judicial Magistrate, First Class, Shrigonda. JMFC committed the case to the Court of Sessions. The charge was framed against all the accused persons for the aforesaid offences. All the accused pleaded not guilty. Prosecution examined in all eight witnesses. The accused persons took a defence of total denial during statements given under section 313 of Criminal Procedure Code. Defence examined one Bapurao Gavali as defence witness. The Trial Court acquitted the relatives of the husband and the husband came to be convicted and sentenced for aforesaid offences. (f) The Trial Court has believed the evidence given by Cri. Appeal No. 14/2010 6 prosecution witnesses regarding the demand of Rs. one lac made by accused No. 1. The fact that Swati died homicidal death, was not seriously disputed before the Trial Court and the prosecution also proved that Swati died homicidal death. The Trial Court has held that accused gave false information to police and he concealed the offence. The Trial Court has taken into consideration the conduct of the accused immediately after the incident and on the basis of circumstantial evidence, the conviction is given. In the appeal, both sides are heard. Points raised by both sides are being discussed alongwith the evidence. 3. The prosecution has relied only on circumstantial evidence. In the evidence of Sonawane (PW 7), the spot panchanama is proved. It is not disputed that the land Gat No. 44 belongs to the family of Kondiba Gavali, father of appellant. The spot was shown by the accused. The well in which dead body was found, according to the accused, is situated in land Gat No. 44. The dead body was taken out from the well by the appellant and his brothers and after that report was given by the appellant to police. In the evidence of Vasant Jadhav (PW 4) the report given by accused to Shrigonda Police Station is proved as Exh. 66. During the statement given under section 313 of Cr. P. C., the appellant has admitted that he Cri. Appeal No. 14/2010 7 had given this report to police. This document shows that the dead body was taken out from the well as per the case of appellant at about 7.30 a.m. on 9.10.2006. In the evidence of Kundlik Khedkar (PW 2), the prosecution has proved the inquest panchanama as Exh. 63. This document was also prepared during the inquiry of A.D. and the dead body was identified by complainant Gorakh (PW 1). The panchanama was prepared in between 12.45 p.m. and 13.45 p.m. Though Kundlik (PW 2) is relative of the complainant, there is also the evidence of Investigating Officer Sonawane (PW 7) on the inquest panchanama. The defence has not seriously disputed this record. In the argument also, the fact that Swati died homicidal death was not seriously disputed. This document shows that there were injuries on both the arms, on the forehead and on the throat. There were blood stains on the sari also. 4. Dr. Shaila Dange (PW 8) conducted the PM examination on the dead body and in her evidence, the PM report at Exh. 82 is duly proved. The evidence of doctor and PM report shows that injuries like contusions were found on left and right side of neck. Injuries like abrasions were found over posterior aspect of left arm and right arm. There was a fracture of right superior horn of thyroid cartilage. All these injuries are said to be anti-mortem in nature. Cri. Appeal No. 14/2010 8 Doctor has given opinion that the cause of death as due to asphyxia due to throttling. In the cross examination, it is only suggested that such injuries can be caused due to fall on stone or due to snatching of ornaments from the neck. The suggestions are denied. Surprisingly, suggestion of causing of injuries due to fall during scuffle are also given. There is no need to discuss this evidence more. Further the inquest panchanama at Exh. 63 shows that the ornaments were intact and no ornament was removed from the dead body. No such specific defence is also taken by the accused/appellant. This evidence is sufficient to prove that Swati died due to asphyxia due to throttling. There was no symptom that death was caused due to asphyxia due to drowning. The aforesaid evidence is sufficient to prove that in the well of the land of father of appellant, the dead body of Swati was thrown after committing her murder. 5. Section 8 of the Evidence Act shows that conduct of the accused in such a case is relevant, if conduct influences or is influenced by any fact in issue or relevant fact, whether the conduct of the accused was previous or subsequent to the incident. The Explanation (1) to section 8 shows that if statement of person like accused in such a case which accompanies and Cri. Appeal No. 14/2010 9 explains acts other than the statement, such statement can also be treated as part of conduct. In view of this position of law, the report given by accused, Exh. 66, is relevant piece of evidence. In this report, the accused informed to police following things :- (a) On 8.10.2006 at about 4 p.m. he was present in the field and to his knowledge, his father and deceased had also reached the field prior to 4 p.m. (b) He learnt from his father that the deceased had left the company of father by saying that she was proceeding to answer nature's call and the deceased had not returned for quite some time. (c) The accused searched for the deceased by giving calls in sugarcane crop and then he went to well situated in his filed. (d) The accused saw footwear, the Chappal, of deceased floating on the water of well. (e) As per his case, the accused gave missing report to police at 1.30 hrs. of 9.10.2006. [ This report is not brought on record by the accused, when in view of other provisions of the Evidence Act, it was necessary for him to do so.] Cri. Appeal No. 14/2010 10 (f) On 9.10.2006 at about 7.30 a.m. the accused searched in the water of the well and then he found the dead body. 6. The accused has taken the defence of total denial. He has not specifically come out with any case as to when exactly he went to the field. There are many suggestions given for accused to various witnesses to point out the distance between the well and the residential place of the accused and also to show that the accused was cultivating this land. To witness Gorakh (PW 1) suggestions are given in cross examination to the effect that accused No. 1/appellant was living with Swati separately, from other accused persons. Suggestions are given that other accused were also living separately with their respective families. A suggestion is given that accused No. 3 was running a photo studio in Shrigonda and he had shifted there about 4 to 5 years prior to the date of incident. A suggestion is given to PW 1 that accused No. 2 - Laxman was doing the business of agricultural operation like Us-Bandhani (preparing groups of standing sugarcane by tying them together). A suggestion is given that accused Nos. 4 to 6 were taking care of cows. It is specifically suggested that yield from agricultural sugarcane crop of the accused was Rs. 2.5 lacs per annum. Another specific Cri. Appeal No. 14/2010 11 suggestion is given that accused No. 1 is a member of Shrigonda Co-operative Sugar Factory. It is further suggested that due to load sheding, it had become necessary to lift the water from well manually. Similarly it is suggested to Manisha (PW 5) during cross examination that Swati was given in marriage to the appellant as he was having 8 acres of agricultural land. This suggestion is admitted by Manisha (PW 5). She has also admitted suggestion given to her that the appellant was cultivating the land. It is suggested to her that Laxman, other accused, was having thrashing machine and he was doing that business. She has expressed ignorance about it. She has admitted the suggestion that other accused Ashok was in the business of photography and he was doing the business at Shrigonda. The report at Exh. 66 given by the accused and aforesaid suggestions indicate that the accused was not disputing that he was cultivating the land in which the well is situated. By giving suggestions, it was also contended that other accused had no concern with this land or its cultivation. 7. In spite of the aforesaid circumstances, the accused examined his defence witness Deoram Gavali (DW 1) to show that accused No. 2 Laxman is having bullocks and he is doing cultivation of the land and accused No. 1 is doing the business by Cri. Appeal No. 14/2010 12 using thrashing machine. This witness was used by police for preparation of spot panchanama, but he has tried to deny the contents of this document when there was no reason for doing so. He has admitted that the accused are his relatives and he generally sits in his grocery shop. There is no record to show that accused No. 1 was doing some business by using thrashing machine. In view of these circumstances, the evidence of Deoram (DW 1) is of no use to accused. This witness cannot be trusted due to aforesaid circumstances. 8. The accused has not examined himself on oath and the father of accused is also also not examined to show that the deceased had left the field or she was last-seen alive when she was alone by somebody. Though it is true that the initial burden of proving few circumstances which are required to be proved for the use of section 106 of the Evidence Act is on prosecution, there is the aforesaid report of the accused and there are other connecting circumstances due to which it was necessary for the accused to give some explanation. In view of the provisions of section 8 of the Evidence Act and aforesaid record and circumstances, this Court has no hesitation to hold that at the relevant time, the accused was present in the field and it was necessary for the accused to given Cri. Appeal No. 14/2010 13 appropriate explanation regarding the cause of death of Swati. 9. For defence on aforesaid incriminating circumstance two reported cases were cited. In the case reported as AIR 1974 SC 778, ( Sawal Das Vs. State of Bihar), the Apex Court has observed that :- "The burden of proving a plea specifically set up by accused lies upon him. But neither section 103 nor section 106 can absolve prosecution from discharging its general or primary burden of proving its case beyond reasonable doubt. It is only when prosecution has led evidence which if believed will sustain conviction, or makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused." There cannot be any question of disputing this proposition made by the Apex Court. In the case reported as 2004 AIR SCW 819 (Sashi Jena and others Vs. Khadal Swain and another), the Apex Court has discussed section 33 of the Evidence Act and also the provisions of section 106. Homicidal death of wife was proved, but in view of the facts of that case, the Apex Court held that mother in law and two brothers of the husband cannot be convicted only for the single circumstance like homicide took place in their house. Cri. Appeal No. 14/2010 14 The facts were entirely different. Few relevant facts appearing from the record are already mentioned and other evidence of the present case is being discussed. 10. On the other hand, for prosecution also few cases were cited. In the case reported as 2007 (Supp.) Bom. C.R. 853 (Aurangabad Bench) (Ramprasad Tukaram Gadade Vs. State of Maharashtra), the death of wife was caused due to strangulation. Husband and wife were living in the said house. In view of this circumstance, this Court held that if the prosecution proves that they were living together in the same house, the burden of prosecution is discharged and it is up to the accused to explain the special circumstance under section 106 of the Evidence Act. It is further observed that if the husband does not explain, adverse inference can be drawn and conviction in such a case is possible. This Court referred the case of Apex Court reported in 2006 (10) SCC 681 (Trimukh Maroti Kiran Vs. State of Maharashtra). The Apex Court has observed that when the accused has an opportunity to plan and commit the offence at the time and in the circumstances of his choice, it is extremely difficult for prosecution to lead evidence for establishing the guilt. It is further observed that in such cases strict principle of circumstantial evidence cannot be insisted upon by Cri. Appeal No. 14/2010 15 the Court. This proposition also cannot be disputed. In the case reported as 2003 (11) SCC 271 (State of Punjab Vs. Karnail Singh), the Apex Court has laid down that it is the duty of the prosecution to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case and after that section 106 of the Evidence Act can be used. Similar observations were made by the Apex Court in the case reported as AIR 2007 SC 144 (State of Rajasthan Vs. Kashi Ram). However, the facts of the other cases cited for prosecution viz. 2000 ALL MR (Cri) 514 (Vanappa Sadashiv Pujari Vs. State of Maharashtra) were totally different. 11. The observations made by the Apex Court and Bombay High Court in the cases cited supra show that in such a case, the provisions of sections 101, 103, 106 and 114 of the Evidence Act need to be considered together. The combined effect of these provisions show that the initial burden to prove the guilt of the accused is on prosecution and section 106 does not relieve prosecution of that burden. However, section 106 is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are "especially" within the knowledge of accused and which he could prove without difficulty or Cri. Appeal No. 14/2010 16 inconvenience. Thus, the facts which are established as within the knowledge of the accused need to be explained by the accused. If he does not explain these facts, there will be some missing links in the chain of circumstances. In view of these special provisions like sections 103 and 106 of the Evidence Act, these missing links can be inferred from the proved facts. In view of section 114, in drawing the inference, a judge of fact is required to have due regard to the common course of natural events to human conduct and their relation to the facts of a particular case. If that is not done, section 114 of the Evidence Act would become useless and the criminal justice system will become ineffective. 12. Thus, in view of the facts of the present case, in ordinary course of nature and in view of the report which is at Exh. 66, it needs to presume that the accused was present in the field where the well is situated and his wife was also there. As the dead body was found in the well and death took place due to asphyxia due to throttling, it was necessary for the accused to explain as to how the wife sustained these injuries. The inquest panchanama and the evidence of the witnesses show that the routein ornaments were on the body of the deceased and there was no attempt to commit theft. In any case, the thief would not have thrown the dead body Cri. Appeal No. 14/2010 17 in to a well. The injuries were found only on the hands, in addition to the injuries which were present on the throat. There was no injury on mouth, lips. If some stranger was attempting to kill her by throttling, the deceased would have certainly raised hue and cry and the accused would have certainly learnt about it, if he is not the real culprit. Due to these circumstances, it needs to be presumed that whatever happened to the wife is within special knowledge of the appellant. There are no steps to the well. The description of well given in the spot panchanama and medical evidence has ruled out probability of suicidal and accidental death. 13. The mention of name of father in report at Exh. 66 is of no use to the accused, as there is nothing positive on the record in respect of this contention. The aforesaid circumstances are certainly against this mention in Exh. 66. In Exh. 66, the accused has not mentioned that he noticed injuries on the two arms of the dead body and also on the throat of the dead body. The accused did not express suspicion regarding the cause of death and he even did not mention that it was the case of probably suicide or accidental death. The mentioning that at about 4 p.m. of 8.10.2006 the accused had seen the footwear of the deceased floating in the well shows that there was circumstance, reason for the accused to Cri. Appeal No. 14/2010 18 draw inference that his wife was in the well. In ordinary course, husband would have immediately tried to take steps to see as to whether she was there and she was alive. No such steps were taken by the accused and the accused tried to trace the dead body only on the next day, after more than 14 hours. The step was taken by the accused on the next morning before the arrival of police even when as per his case, he had given missing report at about 1.30 hrs. of 9.10.2006. It is already observed that the accused ought to have brought the first missing report on the record. Even during the hearing of appeal, a query was made to the defence counsel and she was asked whether the defence is interested in bringing the said report on the record. No interest was shown in that regard by the counsel of the appellant. This circumstance creates probability that when the accused saw footwear of his wife floating in the water of well at about 4 p.m. of 8.10.2006 he was sure