1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.718 OF 2008 Sampat S/o.Sopan Dugane, Age-31 years, Occu-Agriculturist, R/o.Kothala, Tq.Majalgaon, Dist. Beed APPELLANT VERSUS The State of Maharashtra RESPONDENT Smt.S.S.Jadhav, learned counsel for the appellant. Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 18/11/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present appeal, the appellant has assailed the correctness and legality of the judgment and order passed by the Ad- hoc Additional Sessions Judge, Mazalgaon in Sessions Case No. 37/2007 dated 06/11/2008 by which the appellant was convicted for the offence punishable u/s. 302 of The IPC and sentenced to suffer life imprisonment and to pay fine in the sum of Rs.1,000/- in default to suffer further RI for 2 months. 2. At the outset, the facts in nutshell of the case of the prosecution can be summarized as follows : 2 (a) On 14/07/2007, at about 12.00 noon, or so, one Ashok Dugane lodged the report in Sirsala Police Station that wife of his brother i.e. wife of appellant by name Kaushalya was found dead in their house. Her tongue had came out of mouth and there are ligature marks over her neck. On the basis of this report, AD No. 27/07 was registered by Gopinath Sadashiv Waghmare, (P.W.No.7) u/s. 174 of The Cr.P.C. Accordingly intimation was given to A.P.I. Kumbhar (P.W.No.6). As per instructions received from A.P.I. Kumbhar, A.S.I. Waghmare visited the spot. At the spot, he drew inquest panchnama of the dead body (Exh.31), as well as drew spot panchnama (Exh.32). (b) Thereafter, dead body of Kaushalya was sent for post mortem. Dr.Arvind Nathuji Surkar (P.W.No.5) conducted autopsy on the dead body of Kaushalya on 14/07/2007, at about 4.20 p.m. or so. He had noticed following external injuries on the dead body of Kaushalya. Rope mark around neck, horizontal throat neck. He had opined that probable cause of death of Kaushalya was due to Asphyxia due to strangulation, which he had noted in post mortem (Exh.39). (c) After the funeral of Kaushalya was over, Bhamabai Dukare (P.W.No.2) lodged the complaint (Exh.28) in Sirsala Police Station against the appellant, the husband of the deceased, Ganesh, brother in law of deceased, Minabai wife of Ganesh, and Kesharbai, mother in law of deceased. On the basis of this complaint, an offence came to be registered vide CR No.43/2007 for the offence punishable u/s. 3 302, 498A, 323, 34 of the IPC. This FIR was recorded by Sadashiv Chate, P.W.No.4, P.S.O. attached to Sirsala Police Station. (d) Ramchandra Kumbhar (P.W.No.6) carried out investigation in CR No.43/2007. In the same night, he arrested appellant and his brother Ganesh. While in the police custody, on 17/07/2007, appellant made voluntary disclosure statement (Exh.25) which leads to the recovery of one rope (Article 1), allegedly used by the appellant to strangulate the neck of Kaushalya, which was seized under memorandum (Exh.26). On 19/07/2007, Mina and Kesharbai were arrested. During the investigation, he had recorded statement of certain witnesses including the relatives of the deceased and neighbourers. After completion of investigation, he had submitted charge sheet against the appellant and others in the Court of J.M.F.C. Mazalgaon. After passing requisite committal order, J.M.F.C. Mazalgaon had committed the trial against the appellant and others to the Court of Sessions, Mazalgaon. (e) Learned Additional Sessions Judge, Mazalgaon framed the charge at Exh.18 against the appellant and others for the offence punishable u/s. 302 r/w. 34 of The IPC and u/s. 498-A r/w. 34 of The IPC, to which the appellant and others pleaded not guilty and claimed to be tried. (f) From the record received from the Lower Court, it revealed that prosecution had examined total 7 witnesses to prove the charges lavelled against the appellant and others. Defence of the appellant and others was of total denial. No defence evidence was lead on behalf of the appellant. On appreciation of the evidence of 4 prosecution, learned Lower Court pleased to acquit the appellant and others from the charge of an offence punishable u/s. 498A r/w. 34 of The IPC, as well as other than the appellant, others were acquitted from the charge of offence punishable u/s. 302 r/w. 34 of The IPC. Learned Lower Court pleased to convict the appellant for an offence punishable u/s. 302 of The IPC, which judgment and order is impugned in this appeal. (3) Before considering the submissions of learned counsel for appellant and learned APP for respondent State, it is necessary to advert to the evidence of material witnesses. (4) It transpired from the evidence of Bhamabai Dukare (P.W.No.2), who is complainant and mother of deceased Kaushalya that the marriage of deceased with appellant was solemnized prior to 5-6 years of the date of incident. Deceased was properly maintained for about 2-4 years. During this period, the couple was blessed with two daughters. Thereafter, deceased was harassed by the appellant and others on account that she was not knowing domestic work and she had no male issue. On the date of incident, one Shivaji Dhumal came to their house and intimated them about the death of Kaushalya. Immediately thereafter, all the family members went to Kothrul, at the matrimonial house of Kaushalya. In the house of appellant, they saw the dead body of Kaushalya. They noticed that her throat was pressed, scratches over neck and throat, tongue of Kaushalya had came out of teeth. Some signs of beating were 5 noticed on her stomach and thighs. In her cross examination, she had admitted that, on the date of incident, she reached the house of appellant at about 9.00 a.m. She had further admitted that she used to give understanding to the deceased that there are petty quarrels in the matrimonial life, which she had to tolerate and neglect. She had denied the suggestion that no injury marks were noticed on the person of the deceased. She had also denied that she had not noticed anything abnormal on the throat of the dead body. (5) It transpired from the evidence of Narayan Dukare (P.W.No.3) that deceased was her niece. Deceased was illtreated by the appellant and his relatives, as she was not conceiving male child. On 14/07/2007, on receipt of death massage, he accompanied his brother and parents of deceased alongwith other relatives and went to the matrimonial house of deceased. He saw dead body of the deceased in the house of appellant as if she was sitting. He noticed black marks over the neck, throat and scratches over the hands. He also noticed some black marks of beating over her thighs also. He had also acted as a witness to the inquest panchnama and spot panchanama. This spot was shown by Ashok, cousin brother of appellant where he noticed one rope at the Sajja of the room. He had admitted in his cross examination that he and Bhamabai were interrogated by the police after the inquest panchnama was drawn. He had denied the suggestion that there were no black marks over the neck and throat of the deceased. 6 (6) Dr.Arvind Nathuji Surkar (P.W.No.5), who had conducted the autopsy on the dead body of Kaushalya had opined that the cause of death of deceased was due to Asphyxia due to strangulation. Even though this witness has stated in his cross examination that fracture of hyoid bone and thyroid cartilage are the signs of strangulation, which he had admitted above, were missing in the case of the neck of the dead body of Kaushalya, but later on he had clarified that it is not true to say that there is possibility of death caused by hanging in this case. (7) In this background, heard learned counsel for appellant followed by learned APP for State. From the oral and documentary evidence on record the fact is clear that the case of prosecution is rests on circumstances, and not based on direct evidence. (8) From the evidence on record and the circumstances, which are not under dispute, can be summarized as, (1) Relation between appellant and deceased as of husband and wife, (2) Death of Kaushalya was occurred in her matrimonial house, in the night between 13/07/2007 and 14/07/2007, (3) Dead body of Kaushalya was found in the room, occupied by her and her husband i.e. the appellant, which is used as a bedroom or the room exclusively in their possession and occupation. (4) Death of Kaushalya is an un-natural death. 7 (9) Whether the un-natural death of Kaushalya is suicidal, accidental or homicidal is the point for consideration now. As discussed in earlier part of the judgment, while discussing the evidence of Dr.Arvind Surkar, who had opined the cause of death of deceased due to Asphyxia due to strangulation. He had also opined that the death of deceased is a homicidal death. In the inquest panchnama, as well as in the AD report, it is mentioned and stated that dead body of Kaushalya was lying on the bed with her tongue out of mouth, with black marks on her neck. In these circumstances, it is necessary to give the reference about the difference to be noticed in cases of hanging and strangulation about the mode of presence of ligature marks in Chapter 18, i.e. "Deaths from Asphyxia" from "Modi's Medical Jurisprudence and Toxicology, 23rd edition, wherein it is noted as below. Hanging Strangulation Ligature mark-Oblique, non- continuous placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchment-like. Ligature mark-Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. In coloumn no.17 of the post mortem notes, Dr.Arvind has noticed "rope mark around neck horizontal throat neck." From these facts, it is established that the death of Kaushalya is homicidal death, and not an accidental or suicidal death. 8 10. The next point which require consideration is that as the death of Kaushalya was occurred while she was undisputedly in the custody/company of the appellant, then u/s. 106 of The Indian Evidence Act, burden lies on the appellant to explain as to how the death of Kaushalya occurred. Absolutely, no explanation is offered by the appellant in the cross examination of the prosecution witnesses or in his statement recorded u/s. 313 of The Cr.P.C. before the Lower Court. 11. Once, it is held that the death of Kaushalya is established as homicidal death, it is further established that this homicidal death of Kaushalya was occurred while she was in the custody of the appellant. It is further established from the evidence on record that the appellant has not discharged the burden lies on him u/s. 106 of The Indian Evidence Act, to explanation as to how the death of Kaushalya was occurred, then in such circumstances, the appellant and appellant only to be held responsible for the homicidal death, amounting to murder of Kaushalya. In the substance, there are no merits in this criminal appeal, hence no interference is required in the judgment and order passed by the learned Lower Court. Hence the criminal appeal stands dismissed accordingly. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/NOV. 2010/cri.appeal 718-08