drp {1} Cri. Appeal No.418/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.418 OF 2009 Govind s/o Balasaheb Karhale APPELLANT Age-28 years, Occ-Agril R/o Pingli (Kothala) Tq & Dist-Parbhani, VERSUS The State of Maharashtra RESPONDENT Through Police Station Parbhani (Gramin) ....... Mr.S.B.Bhapkar, Advocate for appellant Mr.K.G.Patil, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 27th January 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.) : 1. By the present criminal appeal, the appellant has challenged the judgment dated 13.08.2009 passed by Additional Session Judge, Parbhani in Sessions Trial No.133/2008 thereby drp {2} Cri. Appeal No.418/2009 convicting the appellant for an offence punishable u/s 498A of the Indian Penal Code and u/s 302 of the Indian Penal Code and sentencing him to suffer RI for two years and to pay a fine of Rs. 1,000/-, in default to suffer SI for one month and to suffer imprisonment for life and to pay a fine of Rs.4000/-, in default to suffer SI for three months, respectively. 2. Briefly, the prosecution case unfolded thus- a) Police Inspector Venkat Salunke (PW-9) who was attached to Parbhani (Rural) police station, registered an offence at Crime No.8/2008, on 18.02.2008, on the compliant (Exhibit-39) of Vitthal Bondke u/s 498A and 302 of the Indian Penal Code, against the appellant. Investigation of the said crime was entrusted to PI Chate (PW-8), who had visited the place of offence and drew Inquest Panchanama (Exhibit-25) on the dead body and Spot Panchanama (Exhibit-26). One pillow, clothes of the deceased- smeared with blood, plain soil and blood mixed soil was collected from the place of offence. Thereafter, the dead body was sent for Post Mortem to Civil Hospital, Parbhani. b) Dr.Ritesh Agrawal, PW-1, performed the Postmortem on the dead body, on 18.02.2008 and noticed the following injuries- drp {3} Cri. Appeal No.418/2009 1. C.L.W. Oblique over left side of forehead from midline to tempal bone of size 11 x 4 x 5 cm, blunt margins. 2. Depressed frontal bone fracture of size 7 x 4 cm with chips of bone lost. 3. CLW tempal bone 5 x 4 x 5 cm 4. CLW Frontal parietal region of 8 x 4 x 5 cm with depressed fracture of frontal parietal region. 5. CLW left side of cheek 7 x 4 x 3 cm 6. Fracture of maxilla left side with bone exposed injuries were ante mortem. Semi digested food was noticed in the intestine and, therefore, it was opined that the death might have been caused within 2 hours after the last meal. It was further opined that the cause of death is Intra cranial hemorrhage due to head injury. Accordingly, Postmortem report (Exhibit-11) was prepared. Viscera, which was preserved, was sent to CA. The Medical Officer has also opined that the injuries found on the person of the deceased are possible with a blow of hard and blunt object and the same can be possible with pestle. He has also opined that these injuries were sufficient to cause instant death. The clothes of the deceased were seized under Seizure Panchanama (Exhibit-21). drp {4} Cri. Appeal No.418/2009 c) The appellant came to be arrested on 19.02.2008 under arrest Panchanama (Exhibit-33) and while he was in police custody, he made a disclosure statement (Exhibit-34) on 20.02.2008, which led to recovery of one pestle and clothes of the appellant, which were stained with blood and were concealed in a tank, which were seized under seizure Panchanama (Exhibit-35). Thereafter, statements of certain witnesses were recorded and the seized property was forwarded to CA along with covering letter. Further investigation was entrusted with PI Salunke (PW-9), who, on completion of the investigation, filed charge sheet against the appellant before JMFC, Parbhani, who committed the trial to the Court of Sessions, Parbhani. d) Additional Sessions Judge, Parbhani, framed charge (Exhibit-4) against the appellant, for an offence punishable u/s 302 and 498A of the Indian Penal Code. The appellant pleaded not guilty to the charge and claimed to be tried. Prosecution, to substantiate the charges leveled against the appellant has examined total 9 witnesses. The defence of the appellant was that he was insane and was suffering from mental disorder, at the relevant time. The appellant had further contended that he was falsely implicated in the said offence. The defence of the appellant is negatived by the trial court and after appreciating the evidence on record, the trial court held that the charges are proved against the appellant drp {5} Cri. Appeal No.418/2009 and convicted him accordingly. 3. For better appreciation of the rival submissions, it is necessary to advert to the evidence of material witnesses examined by the prosecution. 4. It transpired form the evidence of Balasaheb Karhale (PW-3), father of the appellant, that the deceased Shakuntala was wife of the appellant and both of them have two daughters. In respect of the incident, he has stated that deceased was working in the field along with the appellant on 17.02.2008. After they reached at home, his daughter had left the house and went to sleep at his brother’s house and he had left the house and went in the field. The appellant, the deceased and their daughter remained in the house. In the morning, when he returned from the field, he noticed that Shakuntala had sustained head injuries and she was dead. He had also noticed that the appellant was not present in the house. He has also stated that marriage of his daughter Ranjana was performed just 3 days prior to the incident and he had to sold his bullocks for the marriage of his daughter. The appellant was insisting that they should give their agricultural land, for cultivation to others, while Shakuntala (deceased) was insisting that they themselves should cultivate the field. She had also offered help by bringing bullocks from her parents house. He has stated in the cross examination that their livelihood was dependent on agricultural income. He has admitted that the appellant was drp {6} Cri. Appeal No.418/2009 insane. However, on perusal of the Marathi version of his deposition, it appears that the sentence must have been “the appellant was simpleton”. He has further stated that the appellant was not interested in doing any work and he could work only after great persuasion. He has further stated that appellant was treated by one Dr.Kale of Parbhani, who is a psychiatric. He has admitted that at the time of the incident, the appellant was under treatment and was required to take tablets during night. However, during the marriage ceremony of his daughter, the appellant could not take the tablets for 6 days, as the same were misplaced and, therefore, he had became aggressive during the said period. He has admitted that the appellant was opposing to cultivate their own land, by themselves. 5. It transpired from the evidence of Eknath Bhondwe (PW-4), father of the deceased, that deceased Shakuntala had married with the appellant 8 years prior to the incident. The couple was blessed with two daughters. The appellant used to assault Shakuntala due to her black complexion. The appellant was not behaving properly with the deceased as she was not doing the household work neatly. He had given two instances in the deposition that on one occasion the appellant had compelled the deceased to stand in rain for whole night. On second occasion, prior to 6 months of the incident, the appellant had tried to hang the deceased by putting rope around her neck and hence since last 6 months, the deceased was residing with her parents. However, drp {7} Cri. Appeal No.418/2009 the deceased was brought back to her matrimonial house as there was marriage of her sister in law. Assurance was given by the appellant and others that they would behave properly with the deceased. He received a telephone message that the appellant has killed Shakuntala and on receipt of the information, he along with his wife, brother and other relatives, had been to the house of the appellant. They had noticed that Shakuntala was lying in the pool of blood in the house of the appellant and she had sustained head injury. PW-3, father of the appellant had disclosed them that the appellant had assaulted Shakuntala by means of pestle. Thereafter complaint came to be lodged with the police. This witness has stated that his brother Vitthal, complainant, was suffering from paralysis and is bed ridden and unable to walk. He has admitted in the cross examination that the marriage of the deceased with the appellant was an arranged marriage and he had not lodged any complaint with the police regarding the harassment of the deceased by the appellant. He was unable to give the particulars and details about the two incidents, which he had stated in his chief. In his further cross examination he has stated that in the statement before police he has stated that the appellant had assaulted Shakuntala with an axe, as according to him, father of the appellant had informed him so. Omission is proved in his cross examination that he has not stated in the statement before police that the appellant had assaulted the deceased with pestle. 6. Evidence of Dnyaneshwar Bhondwe (PW-5) elder drp {8} Cri. Appeal No.418/2009 brother of the deceased, is on the similar lines with that of the father of the deceased (PW-4). Additionally he has stated that his uncle Vitthal had received phone call and after they reached at the spot and enquired with the father of the appellant, it was informed that the appellant has killed Shakuntala and since then he was absconding. This witness has also acted as Pancha witness to the seizure of clothes of the deceased. In his cross examination he has admitted that no complaint was lodged with the police in respect of ill treatment to the deceased by the appellant. Omission is proved in his cross examination that he has not stated in the statement before police that the appellant was absconding after the incident. 7. PW-6 Narayan Mutkule, maternal uncle of the deceased has also stated about the ill-treatment given by the appellant to the deceased. In addition to that, he has also acted as Pancha witness to the inquest Panchanama (Exhibit-25), Spot Panchanama (Exhibit-26) and Panchanama of the seizure of clothes of the deceased. He has also stated in his evidence that father of the appellant had informed to them that the appellant has killed Shakuntala. Omission is proved in his cross examination that he has not stated in the statement before police that in past the appellant had assaulted and ill-treated the deceased. Omission is also proved that he has not stated in the police station that accused was not present at the spot. 8. In this background, heard learned counsel for the drp {9} Cri. Appeal No.418/2009 appellant followed by the submissions of learned APP. Learned APP supported the reasoning recorded by the trial court while convicting the appellant for both the offences. 9. Per contra, learned counsel for the appellant has urged that on clear perusal of the entire evidence, the motive behind the crime is not proved. It is also urged that the case of the prosecution rests on circumstantial evidence and as PW-7 Satish Deshmukh, Pancha witness to the disclosure statement of the appellant, recorded u/s 27 of the Evidence Act and which has resulted in recovery of clothes of the appellant and weapon used by the appellant, has not proved the Panchanama Exhibit-35. Therefore, according to learned counsel for the appellant, the chain of the circumstances, pointing out the guilt of the appellant, is not complete. According to him, the appellant was arrested on the third day of the incident, which indicates that the appellant was not present in the village at all. According to the learned counsel for the appellant, the defence / plea of the appellant of insanity was not properly considered by the trial court. It is also urged that as complainant Vitthal is not examined by the prosecution, the complaint is not proved by the prosecution. According to the learned counsel for the appellant, considering all these facts coupled with the proved omissions in the evidence of PW-4 and PW-5, benefit of doubt be given to the appellant and the appeal be allowed and the appellant be acquitted. drp {10} Cri. Appeal No.418/2009 10. Considering the rival submissions, there is no doubt in our mind that the case of the prosecution rests on circumstantial evidence. These circumstances are - 1. Deceased and the appellant are husband and wife and they were together in their residential house in the night between 17th and 18th February 2008. 2. Dead body of Shakuntala was found in the residential premises, in the morning, where appellant and the deceased had stayed together in the night. 3. Soon after the incident, the appellant was not present in the house. 4. Report of the CA indicates that the blood of the group of the deceased was found on the clothes of the appellant when no injuries were found on his person. 11. Relations between the appellant and the deceased are not disputed. Though it is vehemently urged by learned counsel for the appellant that there is no evidence that during the night the appellant and the deceased were together, yet evidence of PW-3, father of the appellant indicates that on 17.02.2008, after he, the appellant and the deceased had returned from the field, he had left the house and had been to the field and only the appellant, the deceased and minor daughter of the appellant were present in the house. Even the evidence of PW-1 Dr.Ritesh also demonstrates that the injuries found on the person of the deceased can be caused if drp {11} Cri. Appeal No.418/2009 any hard and blunt object is banged on head. Moreover, the spot Panchanama as well as evidence of the Investigating Officer indicates that the dead body of Shakuntala was found in the premises, which was used by the appellant and the deceased as their bed room. The evidence of PW-3 that the appellant and the deceased were together during the night, is not challenged in the cross examination of PW-3. Not even a suggestion was given to PW-3 that in the night the appellant had gone somewhere else, as per the stand of the appellant that he had been to the house of his uncle Bhimrao at Bordi. Considering the effect of all these aspects, it has to be held that the prosecution has established this circumstance. Otherwise also as the appellant and the deceased are husband and wife, unless, otherwise is proved that the appellant was elsewhere, it has to be presumed that during the night the husband and the wife remained / stay together. Once, this aspect stands established then presumption u/s 106 of the Evidence Act goes in favour of the prosecution that the deceased was in the custody of the appellant at the relevant time. Therefore, the burden shifts on the appellant-husband to explain the circumstance in which the deceased had sustained head injury, which resulted into her death. 12. So far as place where the dead body was found is not disputed by the appellant. As the place where the dead body was found is the bedroom or part of the residential premises of the appellant and the deceased, the second circumstance also stands drp {12} Cri. Appeal No.418/2009 proved. 13. The fact that the appellant was arrested on 19.02.2008, is not disputed. No doubt, PW-7 Pancha witness to the memorandum of disclosure statement of the appellant which lead to the recovery of the clothes of the accused as well as the weapon used by the appellant in commission of offence, has not supported the recovery Panchanama, yet this memorandum of statement was proved by the prosecution through the evidence of PW-9 Investigating Officer. In law, mere recovery of weapon at the instance of the accused is not sufficient, unless it is corroborated by some other evidence. Report of CA (Exhibit-45) indicates that the blood of the deceased was of “AB” group. The blood found on the pillow as well as the blood mixed soil, collected from the place of the incident, was of “AB” group. Even the blood found on the clothes of the deceased, was also of “AB” group. At the same time, blood found on the pant and manila, recovered at the instance of the appellant, was also of “AB” group. In the entire evidence, the appellant has nowhere explained as to how the blood of “AB” group was found on his clothes. Thus, this circumstance also stands established by the prosecution. 14. The appellant has taken the defence of insanity. No witness has been examined by the defence to prove that at the material time the appellant was suffering from mental disorder. Some medical papers are produced before the trial court along drp {13} Cri. Appeal No.418/2009 with list (Exhibit-47) of 15 documents. Except the last document, the remaining documents are photocopies and as they are not proved, they are not exhibited. The last document is the certificate issued by Dr.Subhash Kale dated 13.07.2009 certifying that the appellant was taking treatment during December 2004 and November 2007, as outdoor patient. To prove insanity, the appellant has not taken the stand that he had committed the act, however, at the time of commission of the same, he was not knowing what he was doing. Nothing is brought on record to show abnormal behaviour of the appellant soon before and soon after the incident. In absence of any such evidence, we are of the considered view that though defence is taken by the appellant that he was insane at the relevant time yet the same is not accepted. On the contrary, evidence of father of the appellant clearly demonstrates that throughout the day of the incident, the appellant had worked in the field along with the deceased and in the night the appellant was with the deceased when he left the house, after taking dinner. It is specifically observed by the trial court, in paragraphs No.25 and 26 of the judgment that during the trial the behaviour of the appellant was normal. The trial court has also observed that when the plea of the appellant was being recorded, after framing of the charge, the appellant understood the charge which was explained to him in vernacular and had pleaded not guilty. It is also observed that when the questions were put to the appellant u/s 313 of the Criminal Procedure Code, the appellant had answered the same very properly and hence he was drp {14} Cri. Appeal No.418/2009 capable to understand each and every question put to him. In substance, it is observed by the trial court that during the entire trial no symptoms of abnormal behaviour of the appellant were noticed by the trial court. Though it is vehemently urged that at the time of commission of the offence the appellant was insane, yet the appellant has failed to establish his defence, as required to be established in law. Thus, this is one of the additional circumstance to take a false defence, which goes against the appellant. 15. Considering the fact that in the night between 17th and 18th February 2008 the appellant and the deceased were together in their residential house, death of Shakuntala is homicidal, dead body of Shakuntala was found in the residential premises of the appellant, soon after her death and the appellant was absconding and was arrested on 19.02.2008 and weapon and his clothes were seized on 20.02.2008 on which blood of the blood group of the deceased was found, establish the entire chain of circumstances, which points out the guilt of the appellant and disproves his innocence. As the prosecution has established that the appellant has committed murder of his wife Shakuntala, beyond reasonable doubt, hence, it has to be held that the prosecution has proved the offence against the appellant for an offence punishable u/s 302 of the Indian Penal Code. 16. The trial court has relied on the evidence of PW-4 and PW-5, to hold that the offence punishable u/s 498A of the IPC is drp {15} Cri. Appeal No.418/2009 proved against the appellant. However, on re-appreciation of the evidence and considering the proved omissions in the evidence of these evidence, we are of the view that the prosecution has not proved the guilt of the appellant for an offence punishable u/s 498A of the Indian Penal Code. Apart from it, on perusal of the evidence of these two witnesses, it appears that both these witnesses nowhere speak that the ill-treatment or harassment of the deceased by the appellant was for any illegal demand of dowry. On the contrary, evidence of these two witnesses is totally silent on the point that there was any demand at all at the hands of the appellant. In substance, the prosecution has failed to establish that the appellant has committed an offence punishable u/s 498A of the Indian Penal Code. 17. On overall appreciation of the evidence, discussed above, we are of the view that the offence punishable u/s 302 of the Indian Penal Code stands proved beyond reasonable doubt against the appellant while the prosecution has failed to establish the charge for offence punishable u/s 498A of the Indian Penal Code. In the premise, the appeal succeeds partly. 18. Criminal Appeal is partly allowed and the conviction and sentence of the appellant for offence punishable under section 498A of the Indian Penal Code is hereby quashed and set aside and he is acquitted of the offence punishable under section 498A of the Indian Penal Code. Fine, if paid, be refunded to the drp {16} Cri. Appeal No.418/2009 appellant. 19. This appeal is dismissed insofar as it relates to the challenge to the conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code. Conviction and sentence of the appellant for offence punishable under Section 302 of the Indian Penal Code is hereby confirmed. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel418-09