cr apeal 361­05 .doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 361 OF 2005 Shankar Bhagwan Tupe, ] C/2809, Kolhapur Central Prison, ] Kalamba. ] Appellant / Org. Accused Vs The State of Maharashtra ] Respondent Ms. Anjali Waghmare, Advocate appointed for the Appellant Ms. A.S. Pai, APP for the State CORAM : D.D. SINHA AND SMT. V.K. TAHILRAMANI, JJ RESERVED ON : 10th DECEMBER, 2010. PRONOUNCED ON : 22nd DECEMBER, 2010. JUDGMENT [ PER SMT. V.K. TAHILRAMANI,J ] 1. Through this appeal, the appellant-original accused has impugned the judgment and order dated 02.02.2005 passed by the learned Sessions Judge, Satara in Sessions Case No. 46 of 2004. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and to pay fine of Rs. 1000/-, in default RI for three months. 1 cr apeal 361­05 .doc 2. The prosecution case briefly stated is as under: The accused along with his wife Sunita (deceased) and children were residing at Village Khatgun. The accused used to work as a mason and his wife used to work with him as a helper. The accused used to suspect the character of his wife Sunita. He did not allow her to speak to anyone. As he suspected his character, he used to quarrel with her and also used to assault her. Two days prior to the incident, there was quarrel between the accused and Sunita during which the accused beat the deceased. On the date of the incident i.e on 31.12.2003 at about 08.00 a.m., the accused along with his wife Sunita left their house together to go for work. They went to S.T. stand at Khatgun where they met PW 2 Prafulla Umape. Prafulla enquired with the deceased where she was going and she told him that she was going to village Katgun for her job. Thereafter, Sunita and the accused went together. At about 09.00 a.m. on the same day, PW 7 Dilawar who is a priest in Haji Malangbaba Darga situated on the border of village Khatgun and village Katgun wanted to drink water, hence, he came to the boring pump which is situated at the distance of 70 to 80 ft from Darga. He saw the accused coming running from the brooklet called Bend. PW 7 Dilawar asked the accused why he was running. The accused did not say anything and ran away. On the very same day at about 05.00 p.m., PW 3 Nitin Gaikwad received anonymous call that a 2 cr apeal 361­05 .doc dead body of a women was lying in the brooklet known as 'Bend'. He went there and found that body of a women was lying at that place, hence, he informed the police and also went to Pusegaon Police Station and informed the police. The police found the dead body at the spot. Near the dead body, a towel, slippers and tiffin box were found lying. The statement of PW 3 Nitin Gaikwad came to be recorded and on its basis, A.D.R. 33 of 2003 came to be recorded (Exh 21). Thereafter, inquiry was conducted in the A.D.R. by PW 17 API Salokhe. During the course of inquiry, they also made enquiry with PW 2 Prafulla Umape. He identified the dead body as that of Sunita, resident of Beghar Vasti, Bhandewadi (Khatgun). PW 17 API Salokhe then recorded the statement of PW 2 Prafulla Umape and treated the same as FIR (Exh 18). He registered the offence at 00.15 Hrs. on 01.01.2004. Thereafter, the dead body was sent for postmortem. PW 14 Dr. Kulkarni conducted postmortem on dead body of Sunita. On examination of dead body, he found the following external injuries : 1. C.L.W. as seen in Prone position of the patient, starting 1/2 cm. superior and 5 cm posterior to the superior surface of right pinna, hence passing posteriorly and downwards for 6 cm. then posteriorly further for 3.5 cm. second limb passing downwards for 2.5 cm then posteriorly and curving upwards for 3 cms. then posteriorly and downwards to meet first limb. 3 cr apeal 361­05 .doc Crackling present. Right occipital bone fractured in multiple pieces. Brain substance out of wound arteries torn out. Clotted blood, mud particulars over wound. Red coloured signs of inflammation present. 2. C.L.W. 3 cm X 1/2 cm X 1/4 cm. transverse over right occipital bone, starting 6 cm superior and 7 cm to the left of the superior and of the right pinna, passing posteriorly, signs of inflammation present. Red. 3. Skin peeling at places over left half of the back and also over left thigh. Floor of the wound white. No signs of inflammation According to PW 14 Dr. Kulkarni, the cause of death was due to hemorrhagic shock following head injury. In his opinion, all the injuries are possible by hard and blunt substance like hammer (Article 5). He has stated that for causing these injuries, minimum two blows of the hammer would be required. In his opinion, a solitary injury on one part of body like the above one is not possible by a fall on hard ground. According to him in case of a fall, there has to be some other injuries on the body. 3. In the meantime, PW 17 API Salokhe received information from the police control room that Shankar Tupe i.e husband of 4 cr apeal 361­05 .doc the deceased had reported at Poona Gate Police Chowki at Pune. He verified that information and sent ASI Nigade and two constables to Poona Gate Police Chowki to bring the said person to Pusegaon police station. Thereafter, the accused came to be arrested. The clothes on his person came to be seized. The said clothes were found to bear blood stains of 'A' group which is the blood group of the deceased. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 4. Charge came to be framed against the appellant under Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. His further defence is that on 31.12.2003, he along with his wife went to ST stand at Khatgun. PW 2 Prafulla Umape met them at the bus stand. He asked the accused where he was going whereupon the accused told him that he was going to Pune. Thereafter, his wife Sunita went to attend her job and he went to Pune. At Pune, be met his nephew PW 15 Santosh Gadekar and his sister PW 4 Suman Gadekar. Within a short time, police came there and arrested him. His sister and his nephew have falsely implicated him on account of pressure from the police. After considering the defence of the accused and after going 5 cr apeal 361­05 .doc through the entire evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 5. We have heard the learned advocate for the appellant and learned APP for the State. We have perused the evidence as well as the judgment and order passed by the learned Sessions Judge. After giving our anxious consideration to the matter, for the reasons stated herein below, we are of the opinion that the judgment and order does not call for any interference. 6. The prosecution case is that the accused assaulted his wife Sunita with hammer and caused her death. The entire prosecution case is based on circumstantial evidence. The circumstances relied upon by the prosecution are as under : a) Last seen : The deceased was last seen in company of the accused on 31.12.2003 at about 08.00 am to 08.30 am by PW 5 Mayur, PW 9 Ramchandra and PW 2 Prafulla Umape. b) Motive : The motive is that the accused suspected the character of his wife. He did not allow her to talk to anyone. After evening, he did not allow her to go out of his house. He used to lock 6 cr apeal 361­05 .doc the door to prevent her from going out. On account of suspicion, everyday there were quarrels between them during which the accused used to assault his wife and to tell her that he will kill her. Witnesses on this aspect are PW 2 Prafulla Umape, PW 4 Suman Gadekar, PW 5 Mayur Tupe and PW 9 Ramchandra Sathe. c) PW 7 Dilawar had seen the accused running on 31.12.2003 at about 09.00 a.m. very near to the spot of incident. d) At the time, when the accused left the house, he had hammer Article 5 with him which has been deposed to by PW 5 Mayur Tupe. According to PW 14 Dr. Kulkarni, the injuries caused to Suman were possible by hammer (Article 5). e) Extra Judicial Confession made by the accused to his sister PW 4 Suman Gadekar and PW 15 Santosh Gadekar, nephew of the accused. f) Seizure of blood stained clothes which were on his person at the time of arrest. g) Recovery of blood stained hammer at the instance of the accused. Looking to the injuries sustained by Sunita and the spot where she was found dead, there can be no doubt that the 7 cr apeal 361­05 .doc death was homicidal in nature. In any event, it is not the case of the accused that death of Sunita was due to injury sustained in an accident and in view of the postmortem notes (Exh 45), a case of suicidal death is clearly ruled out. After reaching the conclusion that the death is homicidal in nature, question arises as to whether the accused is responsible for the death of Sunita. We have already enumerated the circumstances against the accused. We now propose to deal with them one by one. 7. Where the entire case hinges on circumstantial evidence, great care must be taken in evaluating circumstantial evidence to ensure that the circumstances on which the prosecution relies are wholly consistent with the sole hypothesis of the guilt of the accused. When a case rests on circumstantial evidence, such evidence must satisfy oft quoted tests viz: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should unerringly point towards the guilt of the accused; (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else; (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of 8 cr apeal 361­05 .doc explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence. 8. Legal principles with regard to circumstantial evidence in criminal trial have been explained by the Supreme Court time and again. A recent case in a long line of cases being Pawan and Ors Vs State of Uttaranchal, 2009(3) Bom.C.R. (Cri.) 194. In an earlier decision of the Supreme Court in the case of Shankarlal Gyarasilal Dixit Vs State of Maharashtra, 1980 Criminal Law Journal 325 : 1981(2) SCC 35, the Supreme Court observed as under: "....It is not to be expected that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis." 9 cr apeal 361­05 .doc It needs to be emphasized that while evaluating circumstantial evidence, which of course has to be done carefully, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged and the circumstances so shown by the prosecution are compatible with no other reasonable hypothesis. Keeping these principles in mind, we have evaluated the evidence. 9. Now, we shall consider the first circumstance of "last seen". The deceased was last seen in company of the accused. PW 2 Prafulla Umape, PW 5 Mayur Tupe and PW 9 Ramchandra have deposed on this aspect. PW 5 Mayur has stated that on 31.12.2003 at about 08.00 to 08.30 a.m., his father and mother were about to leave the house for work. He was playing outside the house. He asked his father to give him one rupee. His father took out his hammer from his pocket and showed him his empty pocket that he had no money. Thereafter, his father and mother left for work. His evidence shows that, that evening, his father and mother did not return home and thereafter the dead body of his mother was found. This witness has identified hammer (Article 5) to be very same hammer which was with his father in the morning of 31.12.2003 when he left the house along with his mother. 10 cr apeal 361­05 .doc 10. The evidence of PW 2 Umape shows that the accused and deceased met him at the bus stop at Khatgun at about 09.00 am on 31.12.2003. On enquiry, the deceased told him that they were going to Katgun for job. PW 9 Ramchandra has stated that the accused and deceased left the house at about 08.30 am to go for work to village Katgun. Thus, the evidence of these witnesses establishes that the deceased was last seen with the accused on 31.12.2003 between 08.00 am to 09.00 am. 11. The next circumstance relied on by the prosecution is motive. The motive was that the accused used to suspect the character of his wife Sunita. He did not allow her to go out of the house after evening hours and he used to lock the door so that she could not go outside the house. He did not like her talking with any other person. On account of suspecting her character, there used to be frequent fights between them and the accused used to assault her and threaten to kill her. To establish this, the prosecution has examined PW 2 Prafulla Umape, PW-4 Suman, PW 5 Mayur Tupe and PW 9 Ramchandra Sathe. 12. PW 2 Prafulla Umape is a relation of the deceased. He has stated that the relation between the accused and the deceased were not good. The accused used to frequently quarrel with his wife and beat her as he used to suspect 11 cr apeal 361­05 .doc her character. This witness told the accused not to do so. He has stated that two days prior to the incident, there was quarrel between the accused and the deceased during which the accused beat his wife Sunita. This witness is a resident of same village and he is also related to the deceased, hence, it was possible for him to know that the relations between the accused and his wife were not good and the accused used to suspect his wife and on that count, the accused used to quarrel and beat her. 13. The next witness on this point is PW 4 Suman Gadekar. She is the eldest sister of the accused. She has stated that there used to be frequent quarrels between the accused and his wife Sunita. The accused used to get angry with Sunita when she talked with any other person and he used to suspect her character. During quarrels, he used to assault Sunita. 14. PW 9 Ramchandra Sathe is the next witness on the aspect of motive. He is the father of Sunita. Ramchandra has stated that the accused used to suspect the character of his daughter Sunita and used to frequently quarrel with her. He used to suspect even when she talked to her brother or talked with children in their family. On account of suspicion, the accused used to beat her and threaten to kill her. 12 cr apeal 361­05 .doc 15. The last witness on this aspect is PW 5 Mayur Tupe. PW 5 Mayur Tupe is the son of the accused as well as the deceased. He is a child witness. He was about 11 years at the time of incident. PW 5 has stated that his father used to suspect his mother's character. He did not allow her to go out after evening hours even to answer the call of nature. He used to lock the door to prevent her from going out. He has further stated that his father did not like his mother talking with any other person and for the last about 5-6 years before her death, his mother did not talk to any third person. He has stated that his father used to frequently quarrel with his mother and used to threaten her that he would kill her. This happened almost everyday. Mayur has further stated that on 28.12.2003 in the evening, his father had assaulted his mother. On the next day, he went to his grandparents and informed them about this fact. Thereafter, his grandparents used to come every night to their house to sleep and used to leave the house in the morning at about 7.00 to 7.30 a.m. He has stated that on 31.12.2003 at about 08.00 to 08.30 a.m., his father and mother were about to leave the house for work. He was playing outside the house. He asked his father to give him one rupee. His father took out his hammer from his pocket and showed him his empty pocket that he had no money. Thereafter, his father and mother left for work. That 13 cr apeal 361­05 .doc evening, his father and mother did not return home. At about 05.30 p.m., his grandparents came to their house for sleeping. As his parents did not return home till 06.30 p.m, his grandmother cooked food. At about 08.00 p.m., police came to their house and told that they found a dead body of a woman and they enquired about the identity of the woman, hence, his maternal uncle went with police. They identified the dead body to be that of Sunita. This witness has identified hammer (Article 5) to be the very same hammer which was with his father on 31.12.2003 when he left the house along with his mother. 16. Ms. Waghmare contended that it is very risky to place reliance on the evidence of PW 6 Mayur being a child witness. According to the learned counsel, evidence of a child witness is generally unworthy of credence. We do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection, which we have done. We find the evidence of child witness PW 5 Mayur to be reliable and truthful. Despite searching cross-examination, the child witness has withstood the test of cross-examination. The cross-examiner 14 cr apeal 361­05 .doc has not been able to make any dent in the testimony of the child witness. We, therefore, see no reason to disbelieve the testimony of Mayur. Even otherwise, we find that the evidence of Mayur is supported by a number of other circumstances which have been proved by the prosecution. Thus, After carefully evaluating the evidence of Mayur, we are of the opinion that the testimony of child witness Mayur can be safely relied upon. 17. PW 9 Ramchandra Sathe is the last witness on the aspect of motive. He is the father of Sunita. He has stated that the accused used to quarrel with his daughter Sunita. He used to suspect her character. He used to suspect even when she talked to her brother or talked with children in their family. The accused used to beat her and threaten to kill her. PW 9 used to tell the accused to live with Sunita peacefully, however, the accused did not listen to him. On 29.12.2003, PW 5 Mayur i.e son of the accused had come to his house at about 10.00 a.m. and told him that the accused had quarreled with Sunita the earlier night and he had beaten her. Hence PW 9 along with his wife went to sleep at the house of the accused. Thereafter, every evening, they went to the house of the accused to sleep. On Tuesday i.e on 30.12.2003, the accused informed him that on the next day, he was going with Sunita to work at Katgun. In the morning, they 15 cr apeal 361­05 .doc left along with tiffin box and a towel. The accused took a hammer (Article 5) with him. That evening, when PW 9 went to the house of the accused, till that time, the accused and Sunita did not return, hence his wife started cooking food. Thereafter, police came and told them that the dead body of a woman was lying in Bend brooklet and they should accompany them to identify the dead body. Some of them accompanied the police and they identified the dead body to be that of Sunita. 18. The evidence of PW 2 Prafulla Umape shows that on the date of the incident in the morning, he met the accused and Sunita at Khatgun S.T. stand. He enquired with Sunita where she was going and she told him that she was going to village Katgun for her job. Thereafter, Sunita and the accused went together. If this evidence is seen along with evidence of PW 5 Mayur Tupe and all other witnesses, it shows that the accused did not like his wife Sunita talking to any other person. In fact, PW 5 Mayur Tupe has specifically stated that his father did not like his mother talking with any other person and that for the last five-six years before her death, his mother did not talk with any other person. He has stated that even when his mother used to go to answer call of nature, she used to be accompanied by his sister Poonam. Mayur further stated that after dark, his father did not 16 cr apeal 361­05 .doc allow his mother to go out of the house and he used to lock the door and secure it to prevent her from going out. Looking to the evidence of PW 5 Mayur who has stated that his father did not like his mother talking to any other person and the evidence of Ramchandra who has stated that even if Sunita spoke to a family member, the accused used to suspect her, the evidence of PW-2 Umape assumes great significance. PW 2 Prafulla Umape has stated that in the morning of 31.12.2003 at about 08.00 a.m., when he met accused and Sunita, he asked Sunita where she was going. Sunita replied that she was going to work at Katgun. From the evidence of PW 5 Mayur, it is clear that the accused did not like his wife Sunita speaking to any other person and from the evidence of PW 9 Ramchandra Sathe, it is clear that the accused suspected Sunita even if she spoke to her maternal relatives. Thus, the fact that Sunita spoke to PW 2 Prafulla appears to have enraged the accused and immediately thereafter, he has assaulted her with hammer and caused her death. Thus, the