ssp 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.291/1990 Machindra Hariba Mohite, Appellant Age­57 years, Agrigulturist of Gaurgaon, Dist. Sangli versus The State of Maharashtra Respondent Mr.Abhay Kumar Apte, for the appellant, appointed from Legal Aid. Mrs.V.R.Bhosale, APP a/w Mr.J.P.Khadge, APP, for respondent State. CORAM: P.B.MAJMUDAR & MRS.MRIDULA BHATKAR,JJ. DATE: 3rd DECEMBER,2010. ORAL JUDGMENT (Per Mrs.Mridula Bhatkar, J.) . This appeal is directed against the judgment and order passed by the Additional Sessions Judge, Sangli, dated 6/3/1990 in Sessions Case No.41 of 1987, by which the learned Additional Sessions Judge has convicted appellant/accused for the offence punishable under Section 302 of Indian Penal Code and sentenced him to suffer imprisonment for life and to pay a fine of Rs.1,000/­, in default to suffer R.I. for one year. The ssp 2 appellant/accused has also convicted for the offence punishable under Section 201 of Indian Penal Code and sentenced to suffer R.I. for two years and to pay a fine of Rs.200/­, in default, to suffer R.I. for three months. 2. It is the case of the prosecution that one Ramchandra Bhujanga Pawar is native of Mouje Ghatnandre and was living there with his wife, six sons and four daughters. Deceased Sunanda was daughter of Ramchandra. Initially she was married to a person from Garalewadi. Later on, her husband deserted Sunanda and therefore, she was living with her parents. Accused is a distant relative of Ramchandra. The relationship between the accused and his first wife was estranged. The accused had married the deceased one and half months prior to the incident. After the marriage, the accused and deceased Sunanda used to live at Ghatnandre and then they shifted to the house of Sambhaji Padalkar at Raiwadi. Accused was suspecting the character of deceased Sunanda and used to harass her. 3. It is the case of the prosecution that on 05­01­1987, accused went to the house at about 10.10 a.m., and came out from the house after some time, rubbing his trouser as it had ssp 3 caught fire. The fire in the house of the accused was seen by two boys namely Mohan Mohite and Bajirao Jadhav and therefore, they screamed. As a result of this, neighbours, teachers and other boys of the School, gathered at the spot of incident. In the meantime, accused went towards Nagaj. Police Patil was called. The people who were gathered there, demolished the wall of the house so as to extinguish the fire. Dead body of the accused was found in the house. Police Patil of Nagaj reported the incident to Kavathe­Mahankal Police station. The police personnel visited the house of accused at Raiwadi and conducted the inquiry. Mr.Vishnu Pawar (P.W.1) lodged the F.I.R. (Exh.21), on the basis of which accidential death at Sr.No.2 of 1987. Further investigation was carried out by ASI Patil (P.W.6). Inquest panchanama of the dead body was prepared and the dead body was sent for post­mortem. Panchanama of scene of occurrence was also drawn vide Exh.10, under which some articles have been seized. The Medical Officer opined that the death of the accused was caused due to throttling. ASI Patil (P.W.6) lodged report against the accused and offences came to be registered against the accused at C.R.No.1 of 1987. Accused came to be arrested and was admitted in the hospital, as he had sustained ssp 4 burn injuries on his fore arms and face. His garments were also attached under the Panchanama at Exh.12. Investigation Officer recorded the statements of the witnesses and investigation was handed over to PSI Waghchore. On completion of investigation, PSI Chavan filed chargesheet against the accused on 20­04­1987. 4. The case was accordingly committed to the Court of Sessions and the learned Sessions Judge framed charge against the accused on 17­07­1989 at Exh.1. The accused did not plead guilty to the charge and claimed to be tried. 5. Initially, the above appeal was disposed of by a Division Bench of this Court by a judgment & order dated 19/4/2007. The said judgment was challenged in the Supreme Court. The Supreme Court remanded back the same as the appeal before this Court was heard in absence of the advocate of the appellant/accused. 6. On behalf of the prosecution, eight witness were examined. Mr.Vishnu Maruti Pawar (P.W.1) in his examination­in­ chief stated that he is a native of Mouje Ghatnandre and the parents of the deceased are also natives of the said Village. According to him, deceased Sunanda was given in marriage to a ssp 5 person from Garalewadi. After some time, her husband deserted Sunanda and therefore, she was living with her parents. He deposed that he is a primary teacher and posted at Raywadi School since 1980. According to the said witness, one and half months prior to the incident, parents of the deceased informed him that they have performed second marriage of deceased Sunanda with the accused Machindra Mohite. After the marriage, accused shifted to Raiwadi, where he had a rented room in the house of Sambhaji Padalkar, which is in front of his school. The distance between his school and the house of Sambhaji Padalkar is about 50 to 60 feet. 7. Mr.Vishnu Maruti Pawar (P.W.1) further stated that on the day of incident i.e. 05­01­1987, he had been to the School at about 10.45 a.m. After the prayers of the students, they went to their class rooms and the teachers went towards the Teachers Room for signing muster­roll. At that time, he saw the accused going to the house. While they were in office, heard two boys shouting that the house of the accused was in fire. On hearing the same, the witness and other staff, came out from the office and they saw Mohan Sitaram Mohite and Bajirao Sitaram Jadhav standing in front of the house of the accused. Neighbouring ssp 6 ladies came to the house of the accused from the north side. He along with teachers and some other boys, came out from the school and saw that the accused emerging from the house and his right leg of trouser was burning upto the level of under­pant. Accused was trying to extinguish the fire. Accused started slowly walking away towards Nagaj by saying “let her die”. The said witness further stated that Police Patil was called by somebody. After arrival of Police Patil, wall of the room was demolished and the fire was extinguished. 8. In the cross­examination, the witness had admitted that the door of the house of accused was opened. He further stated that after the ladies and the boys had gone away, accused came out from the house. 9. The prosecution also examined Mr.Shrirang Ramchandra Pawar (P.W.2) at Exh.22. Learned Trial Judge has recorded that the said witness is not properly giving his age. However, he is taking education in 7th Standard. He stated that he is living at Ghatnandre with his parents and the deceased was his sister. The witness stated that prior to one and half month of the incident, accused married the deceased Sunanda. He stated ssp 7 that the deceased was complaining that the accused was suspecting her chastity and was illtreating her. After eight days, the parents of the deceased sent him to the house of the deceased for giving toe ring (Jodavi) to her. At that time, accused was not there and he returned to his house in the evening. He stated that when the accused saw him, the former started abusing him and asked him as to why he had come to his house. He further stated that on the next day, while he was returning to the house, deceased Sunanda accompanied with him upto the brook and at that time, deceased Sunanda told him that her husband suspects her chastity and therefore, he belaboured her. The witness thereafter, returned the house and apprised the family members about the same. Nothing substantial can be elicited during the cross­examination of this witness. 10. Prosecution has examined Mr.Mohan Sitaram Mohite (P.W.3). The said witness in his evidence stated that incident in question took place at about 11.15 a.m. At that time, he was taking education at Shri Siddheshwar High School, Nagaj. He stated that on the relevant day, he was not wearing school uniform because the same was given to the tailor for stitching. ssp 8 He was scolded by the class­teacher and asked him to go back to the house in the recess and came to the school in uniform. As per the evidence, the witness went to the shop of a tailor, but the tailor did not stitch his pant. The witness therefore, returned to his home, took meal and again went for taking his trouser. On his way, Bajirao Jadhav met him near Chawadi and asked him to wait, as the former was also going to Nagaj. Mr.Bajirao then went to his house, took meal and came at Chawadi. Then, they proceeded towards Nagaj. On their way to Nagaj, they saw the incident in question. They saw smoke coming out from the accused and therefore, they shouted. They saw accused coming out from the accused and his right trouser leg had caught fire. Accused was uttering words “let her die”. In the cross­ examination, he stated that his presence was marked in the muster roll of the class upto the recess. The witness admitted that he saw the smoke coming from the accused, but feigned ignorance as to whether roof had caught fire, as he did not pay attention to the roof. 11. The prosecution also examined Mr.Kamal Shankar Patil (P.W.4). He stated that he is a primary teacher. On the date of incident, he had been to the School as usual. After the prayer, ssp 9 he along with other teachers, went to the office of Head Master. About 5 to 7 minutes thereafter, they heard somebody shouting that there is a fire. They saw two boys namely Mohan Sitaram Mohite and Bajirao Sitaram Jadhav standing in front of house which had caught fire. He saw accused stood there uttering some words for about 5 minutes. 12. Mr.Ganpatrao Rangrao Patil (P.W.5) was also examined on behalf of the prosecution. According to him, on 05­01­1987, he had been to the farm in the morning. He was told that Kotwal had came to the house to call him and therefore, he went to Chawdi. He found that villagers had brought the accused and had detained him at Chawdi. He stated that right leg of the trouser of the accused and right portion of his shirt had burnt. In the cross­examination, he stated that accused was sleeping on the floor when he saw the accused. 13. Mr.Tukaram Akaram Patil (P.W.6) was also examined on behalf of the prosecution. According to him, on the relevant day, Police Patil of Nagaj contacted him on telephone and informed him that accused has detained at Chawadi as he had sustained burns. He states that the accused was not in a position ssp 10 to speak properly as he had sustained burns. He therefore, sent accused to Primary Health Centre for treatment. He prepared panchanama of scene of occurrence and also drawn inquest panchanama of the deady body of the deceased. He further states that he received advance certificate from medical officer to the effect that death is caused on account of throttling. He therefore, lodged report against the accused and registered the offence being C.R.No.1 of 1987 under Section 302 of IPC and made endorsement in the margin of FIR at Exh.28. 14. On 07­01­1987, he recorded statements of witness and made inquiries with the accused who was admitted in the Civil Hospital, Sangli. He also examined Stove and it was found to be in order. In the cross­examination, the witness admitted that the accused was admitted in the hospital as an indoor patient from 05­01­1987 to 19­01­1987. 15. Prosecution has examined Mr.Pradip Marutrao Chavan (P.W.7) at Exh.29. He stated that he verified the papers and submitted the Chargesheet against the accused in the Court of J.M.F.C., Kavathe Mahankal. 16. Dr.Ananda Nana More (P.W.8) was also examined on ssp 11 behalf of the prosecution. He stated that he was attached to Primary Health Centre Dhalgaon since June 1986. On 06­01­1987, dead body of Sunanda was received at PHC at 11.45 a.m. He carried out post­mortem along with Dr.Kamble. He stated that deceased was well­nourished and there were burns all over the body except the back side. He stated that in column No. 21, he has stated that the tongue was protruding outside the mouth 3 to 4 cms from the mouth. He stated that the death is caused on account of shock due to cardiac respiratory failure due to asphyxia due to strangulation. 17. This is the oral evidence adduced by the prosecution in order to prove its case. The defence has not led any evidence. However, a written statement is submitted by the accused. In the said statement, accused has stated that when he saw the unexpected incident and noticed that Sunanda was died, he became confused and therefore, he did not know what he was doing and where he was going. He was not conscious. In such confused condition, he went at Nagaj and slept near road and then people brought me in Chawadi. 18. We have heard the learned counsel for the ssp 12 appellants and the learned APP for the State and have gone through the documentary and oral evidence on record. 19. Postmortem report of Sunanda throws light on the cause of her death. Column 20 reads as under­(Page 41 of the paper book). Thorax ­ a ] Walls,ribs,cartilage 1] At both superior horu of Thyroid Cartilages b] Pleura 2] Coxepronion of lartnx & Nachea c] Larynx,Trachea 3] Heucatacaerond the trachea Larynx And Bronchi d ] Right Lung­Congested 4] Laraynx,Trachea,Bronchi shows congestion c blood stained mucaes. 5] Trachea,Brochi does not show sucokes or black mucou 21] Slve of heart is full of blood closted 20] Exactly weight­2170 gms. e] Left Lung ­Congested f] Pericardium g] Heart with weight ssp 13 h] Large Vessels Full of blood. Opinion of the doctor about the cause of death of Sunanda is : Shock due to cardio ­respiratory failure due to asphyxia due to strangulation. 20 The opinion is based on the injuries mentioned in column ­20 of the postmortem report. It shows that superior thyroid cartilage was broken. Thus the cause of her death was not burning but it was strangulation which has taken place in her house. The submission of learned counsel Mr.Apate that who killed or who strangulated Sunanda is not seen by enybody is true. However, the prosecution case did not stop there but it also comes with further story i.e. the body of Sunanda was subsequently found burnt. 21. The case of the prosecution is mainly based on the conduct of the accused which is relevant under section 8 of the Evidence Act and is to be appreciated considering all the incriminating circumstances tendered by the prosecution. If there was fire in the house of the accused and the accused had come across the dead body of his wife in burning condition then ssp 14 obvious and natural conduct of the accused was to rush to the police or to give call to the public , request them to help him and take his wife to the hospital. Instead the accused quietly went away and then slept outside the house near the road. The fact of homicidal death of Sunanda is not disputed. Semi digested food i.e.Rice and Dal was found in her intestine at the time of postmortem. It shows that she had consumed food approximately one and half hour prior to her death. However, time of her death cannot be determined as there is no specific time given by the doctor. So she must have been killed either in the night after having dinner or in the morning after having her breakfast. She was found dead at about 11.15 to 11.20 a.m.. Prosecution Witness no.8 Dr.Nanda More deposed that she found that there were no burn injuries on the back side of the body. Thus, it corroborates the fact that her body was burnt after she was killed and therefore, the burn injuries were not found on her back. In the spot panchanama a Can of kerosene with little kerosene was found in the room. It shows that kerosene was used to burn the body. On this point the learned Trial Judge has properly dealt with the evidence of the Medical Officer and the panchanama. ssp 15 22. The motive is generally required to be proved in any criminal trial . In the present case the learned Sessions Judge has elaborately assessed the evidence of P.W.2 Shrirang Pawar, brother of deceased Sunanda who was 12 years old witness . He has deposed that his sister has told him that her husband i.e.the accused used to be suspicious about her character and used to torture her. He has also deposed that when he went to meet his sister the accused did not like it and he asked him to get out of the house. However, the accused was very rude and expressed his dislike. This is evident to show that the relations between the husband and wife were strained. In fact they had a very short married life of only one and half months , but the newly married couple was not sailing smoothly. 23. Thus, the accused in his statement under section 313 of the Code of Criminal Procedure has stated that he was confused when he came out and was also got burnt so he went and slept near the road. The accused has right to keep mum and the prosecution has to stand on its own footing. However, when the incident has taken place where husband and wife’s relationship is involved then up to certain extent some ssp 16 explanation or some suggestion should come from the accused. 24. While opposing the conviction the appellant relied on (Sushil Kumar Vs.State of Punjab (2009)10 Supreme Court Cases,434 wherein it is observed that­ “On the other hand, learned counsel for the respondent strongly contended before us that in any case it is not a case of acquittal for the following reasons­ i] Dead bodies were found from the house of the appellant where he was also living with them and has not explained about the incident; ii] Bloodstained bedsheets,clothes, pillows were recovered from the bedroom, where the dead bodies were found which was shared by the appellant too ; iii] Recovery of knife and rope from the same place; iv] The appellant was last seen by Satpal (PW4) at 5.00 a.m. ,while he was coming out from his house in a perplexed condition; v] Sukhdev (PW2) had no occasion to visit the house of the appellant at 6.30 a.m.on the fateful day unless he was informed about the incident by the appellant; vi] Couple was havingstrained relations and was passing through bad financial conditions ; and vii] Taking of false plea of alibi is also one of the strong circumstances against the appellant to connect him with the commission of crime. ” 25. Thus, we are of the opinion that all the circumstances are complete and no gap is left in the chain of the evidence. ssp 17 26. Learned counsel Ms.Bhosale further relied on (State of West Bengal Vs.Dipak Haldar and another ) (2009) 7 Supreme Court Cases 288. It is observed in paragraph 16 as under. The circumstances which were highlighted by the prosecution and on which the trial court placed reliance are as follows. a. There is nothing on record or even reply to the question put to Respondent 1 in examination under Section 313 Cr.P.C.that he tried to put off the fire and that he made any inquiry in the hospital as to the condition of his burnt wife.The fact remains that he was in a position to make appropriate arrangement for treatment of his wife but he did not do so. No reason has been assigned as to why he did not accompany his deceased wife in the hospital along with the neighbours. b. There is nothing on record that accused Dipak Haldar did anything to save the life of his wife from the fire. There is also nothing that he called the neighbours for help in such great danger. c. ........ d.......... e. After a careful consideration of the facts, the circumstantial evidence on record and the attitude and conduct of the accused persons ,it can be held without any hesitation that the deceased was physically assaulted before the fire. 27. This ruling highlights the circumstances which were established by the prosecution that the accused did not do anything to save the life of his wife from the fire and there is also nothing on record to show that he called the neighbours for help in such a danger and also that there is no evidence that accused ssp 18 Deepak performed any of his duties for the treatment of his burnt wife. Paragraph 19 of this ruling states that ­ “In the instant case, apart from the fact that the accused did not make an effort to save the deceased but was shown to have been abusing the deceased and his relatives,tried to prove his innocence by manipulating the records of a nursing home. The obvious attempt was to show that he could not have looked after the treatment of the wife as he himself was undergoing treatment. Several other factors throw considerable light relating to the absence of any material to show that a stove had burst which resulted in causing injuries on the body of the deceased.” 28. From the aforesaid evidence, in our view, the prosecution has established the fact that the accused entered the house and came out from the accused in presence of witnesses. Thereafter, the accused went at Nagaj area and slept there. It is therefore, crystal clear that the accused on his own came out from the house and was able to walk. It is also clear that the accused did not take care of his wife in any manner. Even otherwise, the prosecution has clearly proved that the death of the deceased was homicidal one. Considering the evidence on record, the prosecution has amply proved from the circumstances brought on record the fact that the accused committed the ssp 19 aforesaid offences by murdering his wife and prosecution has proved its case beyond all reasonable doubt and by circumstantial evidence. In such circumstances, the natural conduct of a husband to take care of his wife without leaving the house and wife in such a condition. It is also required to be noted that the presence of the accused at the scene of incident is not in dispute and as such, the accused also admits his presence at the scene of incident on the relevant day. 29. Considering the evidence on record, in our view, the learned Additional Sessions Judge has rightly appreciated the evidence and convicted the accused for the offence for which he was charged. In view of what is stated above, the appeal is dismissed. The order of conviction and sentence passed by the learned Sessions Judge, Sangli, is hereby confirmed. The appellant/accused shall surrender to his bail and shall be taken in custody forthwith to undergo the remaining sentence. Set off under Section 428 of Cr.P.C., if any, shall be available to the accused. 30. The learned counsel for the appellant requested for some time for surrendering. Eight weeks time is granted by ssp 20 which the appellant/accused shall surrender to the concerned police station to suffer remaining sentence. P.B.MAJMUDAR,J MRS.MRIDULA BHATKAR,J.