1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.873 OF 2005 Prashant Mahadeo Chavan Residing at Plot No.243/1938 Motilal Nagar – 1, Goregaon (W), Mumbai Presently lodged at Thane District Prison. ..Appellant. Vs. The State of Maharashtra Dindoshi Police Station C.R. No.01/2004 ..Respondent. .... Mr. Raja Thakare with Mr. A.M. Chimalkar i/b Mr. Manohar Kandalkar for the Appellant. Ms. P.H Kantharia, APP for the State. .... CORAM: SMT. RANJANA DESAI and, DR. D.Y. CHANDRACHUD, JJ. 6th October, 2008. JUDGMENT (Per DR. D.Y. CHANDRACHUD, J. ) : 1. The Appellant was tried for offences punishable under Sections 302 and 304(B) of the Penal Code. The charge against the Appellant is that he had caused the death of his wife on 2nd January, 2004 by hanging her by the neck with a nylon rope which was tied to the pipe of a ceiling fan. The Appellant and five other 2 accused (consisting of his two brothers, two sisters and mother) were also tried for offences punishable under Section 498-A read with Section 34 of the Penal Code. All the accused have been acquitted of the charge under Section 498-A read with Section 34 and the Appellant has also been acquitted of the offence punishable under Section 304-B. The Appellant has been convicted under Section 302 of the Penal Code and has been sentenced to imprisonment for life and to a fine of Rs.1,000/-, in default whereof he has been sentenced to undergo rigorous imprisonment for three months. 2. The Appellant was married to Sakshi on 31st May, 2001. Sakshi was a graduate and was employed as a Computer Operator at the Rashtriya Ispat Nigam. On 13th December, 2002 Sakshi delivered a baby girl. On 6th March, 2003 the Appellant took his wife and the child back to the matrimonial home. Sakshi resumed work on 1st April, 2003. Matrimonial disputes had arisen between the Appellant and his wife and some time in the month of April, 2003 a compromise was arrived at through the uncle of the 3 Appellant. In August 2003 the Appellant took premises on leave and license into which he and Sakshi moved together with the new born. The premises were situated at Nagari Niwara Parishad at Goregaon (East). In December, 2003 a procedure for the medical termination of pregnancy was carried out on Sakshi. 2nd January, 2004 happened to be a Friday which was a weekly holiday for the Appellant. There were four tenements on the floor of the building where the Appellant resided of which two were vacant. Apart from the tenement which was occupied by the Appellant and his family, the immediately adjoining tenement was in the occupation of a family which had engaged Bhavana Rathod (P.W.5) as a domestic help. At 10.30 a.m. the Appellant knocked on the door of the adjoining tenement. P.W.5 Bhavana was alone, her employers having gone to work. The Appellant informed P.W.5 that Sakshi had hung herself. P.W.5 accompanied the Appellant to his house and found that Sakshi was hanging by a nylon rope from the ceiling fan. Her feet were on the floor. P.W. 5 went down to the second floor to call a neighbour - Sarika Chaphekar, and took her upstairs. Sakshi continued to be in the same position. P.W.5 searched for a 4 knife in the tenement of the Appellant and not finding one obtained it from her own residential quarters and gave it to the Appellant. The Appellant cut the rope after which Sakshi was made to lie down on a sofa. Sakshi, according to the case of the prosecution, regained consciousness after being given water to drink and upon being made to smell an onion. Dr. Sudhir Patil (P.W.8) was summoned and he advised that the victim should be removed to hospital. Sakshi was taken to the Vimala Nursing Home and was admitted under the care of Dr. Raghvendra Bellurkar (P.W.7) at 11.15 a.m. Sakshi expired at 4.20 p.m. at the hospital. A First Information Report was lodged by Sanjay (P.W.1) - the brother of the deceased under Sections 498-A and 306 read with Section 34 of the Penal Code. Upon the completion of investigation the case was committed for trial before the Court of Sessions and charges were framed on 2nd December, 2004. The Appellant as noted earlier was charged of offences under Section 302 and Section 304-B of the Penal Code. The Appellant, his two brothers, two married sisters and mother were charged of offences under Section 498-A read with Section 34. 5 3. The prosecution examined eleven witnesses. P.W.1 Sanjay was the complainant and the brother of the victim; P.W.2 Meena was the sister of the victim while P.W.3 Ramchandra was the father of the victim. P.W. 4 Anant More was a Panch witness to the inquest Panchanama. P.W. 5 Bhavana was the neighbour of the accused. P.W. 6 Susan was a colleague at the work place of the victim. P.W. 7 Dr. R.M. Bellurkar was the Medical Officer at the Nursing Home. P.W. 8 Dr. Patil was initially summoned to examine the victim. P.W.9 Gawde was the Investigating Officer. P.W. 10 Dr. Sanap conducted the postmortem. P.W.11 Agarkar was also the Investigating Officer. The defence examined six witnesses, among them D.W. 6 Ravindra Yadav upon whose testimony a plea of alibi was sought to be set up by the Appellant. 4. The Appellant alone has been convicted under Section 302 as noted earlier. All the other charges have failed and the other accused have been acquitted. 6 5. On behalf of the Appellant it has been submitted that in a case based on circumstantial evidence, the burden lies on the prosecution to establish all those circumstances which would lead to only one conclusion viz. the guilt of the accused and eliminate any other reasonable hypothesis inconsistent with the innocence of the accused. In the present case, it has been urged that there are several lacunae in the theory of the prosecution viz. (i) The prosecution has not established how the deceased was hanged viz whether the ligature was first tied to the rope of the ceiling fan and then to her neck or vice versa; (ii) The victim was alive even after the rope with which she was hanging was cut; (iii) There is no evidence of the victim having been incapacitated by the use of any drugs or the infliction of an injury; (iv) There is no evidence of any mark of struggle on the body of the accused ; (v) An unexplained injury on the thigh cannot be regarded as incapacitating the victim to put up a struggle ; (vi) The victim was violent and rowdy and the possibility of the injury having been caused while she was taken down through the staircase could not be ruled out; (vii) The medical evidence of Dr. Patil (P.W.8) and Dr. Sanap (P.W.10) is 7 consistent with the hypothesis that the death in the present case was a result of the suicide. Counsel appearing for the Appellant further urged that since all the accused have been acquitted of the charge under Section 498 and the Appellant has been acquitted of the charge under Section 304-B as well, and no appeal has been preferred by the State against acquittal, the so called circumstances pertaining to the ill treatment of the deceased which were disbelieved by the Trial Court, cannot be relied upon. No evidence of an immediate proximate cause has been brought on the record by the prosecution. Learned counsel submitted that the statement of the accused under Section 313 can be taken into consideration only after the prosecution discharges its burden of proving its basic case and in any case multiple questions were posed to the accused which were such as were liable to mislead him. Further more, it was submitted that the conduct of the Appellant was consistent with his innocence. The Appellant had in his statement under Section 313 stated that he had left his house to drop the child with the baby sitter. D.W.6 was a natural witness and was examined as a chance witness on an otherwise 8 insignificant chance meeting. The conduct of the Appellant in calling his immediate neighbour was natural and in the ordinary course of things. The Appellant had also not furnished a false history to the examining doctor P.W. 8. The injuries on the person of the victim have been reasonably and plausibly explained by the Appellant. The prosecution having failed to establish its case, the burden cannot be cast on the Appellant under Section 106 of the Evidence Act. The Appellant cannot be made to bear the brunt of a faulty investigation. 6. On the other hand, the Learned APP has supported the judgment of conviction by relying on a number of circumstances and it has been urged that the evidence which has been adduced on behalf of the prosecution establishes all the necessary links to establish the guilt of the Appellant. The Learned APP urged that (i) The conduct of the Appellant was wholly unnatural and no immediate attempt was made to bring down the deceased and release her from the rope; (ii) The Appellant had in his statement under section 313 admitted that the latch of the house was not 9 bolted from inside; (iii) The Appellant had furnished false information to the relatives to the effect that his wife had committed suicide; (iv) The injuries found on the body of the victim clearly establish that this was not a case of suicide; (v) The Appellant had set up a palpably false plea of alibi through the evidence of D.W.6 and (vi) The burden of explaining circumstances which were within the special knowledge of the Appellant was upon him under Section 106 of the Evidence Act and the failure of the Appellant to discharge that burden provides an additional link in establishing the case of the prosecution based on circumstantial evidence. 7. The admitted position on the basis of the evidence before the Court is that the Appellant resided together with his wife Sakshi in a tenement at the Nagari Niwara Parishad, Goregaon (East). The tenement was acquired on a leave and license basis in August 2003. Sakshi had delivered a baby girl on 13th December, 2002. During the course of the submissions before this Court counsel appearing for the Appellant has relied upon the testimony of P.W. 5 - Bhavana Rathod as being the testimony of a truthful 10 witness. P.W.5 was engaged as a domestic help in the residential tenement of Deepak Mistry. The tenement where P.W.5 worked was immediately adjoining the residence of the Appellant and Sakshi. These were only two tenements which were occupied on the floor, the remaining two being vacant. Evidently, there were matrimonial disputes between the Appellant and his wife. The Appellant in the course of his statement under Section 313 accepted the position that in June 2003 his uncle had intervened and brought about a compromise. 2nd January, 2004 was a Friday which was a weekly day off for the Appellant. According to the Appellant Sakshi had informed him that she should be going late to work and he left her to drop the child to the baby sitter. The defence which was sought to be established through the testimony of D.W.6 who was a bus driver is that between 10.20 and 10.30 a.m. the Appellant had a conversation at which they discussed the New Year's Eve of 31st December 2003 after which the Appellant left. The Appellant thereupon went back home. The door to the tenement was not locked from inside. The Appellant claims that he found Sakshi hanging from a nylon rope from the ceiling fan and 11 proceeded to inform his neighbour P.W. 5. P.W. 5 in turn called a neighbour on the second floor, Sarika Chaphekar, and returned to the tenement where the victim was in the same position. P.W.5 brought a knife from her tenement which was used by the Appellant to cut the nylon rope through which Sakshi was found to be hanging. Sakshi was alive and was made to lie down on the sofa. She regained consciousness upon being given a glass of water. P.W.8 was summoned and on his advice she was moved to the Vimala Nursing Home where she was attended to by P.W.7. 8. The Appellant and his wife, together with their daughter who was a little over a year old were the only occupants of the tenement. According to the Appellant he had gone to the baby sitter to drop the young child off on 2nd January, 2004 which was his holiday. The Appellant claims to have had a conversation between 10.20 and 10.30 a.m. with an acquittance viz. D.W. 6 and to have found his wife hanging when he returned at 10.30 a.m. The conduct of the Appellant assumes relevance. Finding – according to him - that Sakshi was hanging the Appellant made no immediate 12 attempt to bring her down or to release her from the rope. Instead the Appellant proceeded to summon help from P.W.5 Bhavana who in turn went to the second floor to call Sarika Chaphekar. P.W.5 searched for a knife in the tenement of the Appellant and not finding one obtained a knife from her own tenement. P.W.5 has in her deposition stated that until then Sakshi was in the same position in which she had originally seen her. P.W. 5 stated that when she had first seen Sakshi her feet were on the ground. No steps whatsoever were taken by the Appellant to reduce the pressure on the neck of the victim or to immediately cut the rope himself. The Appellant has in his statement under Section 313 stated that he banged the door before he entered. The door according to the Appellant was a single door which had only one simple latch which opened by moving and the latch was not of the Godrej type. P.W.3 who was the father of the victim deposed that she was about 5' .3" in height. The conduct of the Appellant in taking no immediate steps to relieve the victim who, according to his statement under Section 313, was found hanging is a telling circumstance. The Appellant chose instead to summon a 13 neighbour and to wait until P.W.5 had summoned another neighbour and had obtained a knife with which the rope could be cut. 9. P.W.10, Dr. Sanap conducted the postmortem examination. P.W.10 noticed the following injuries :- (i) a ligature mark around the neck situated above the thyroid cartilage, grooved and parchment paper like coloured size 34 cm x 1 cm. (ii) abrasion over the left forearm 1.5 cm x 2 cm. (iii) a contusion over the left thigh 2.2. cm x 2 cm. 10. According to P.W.10 the cause of death was "asphyxia due to hanging unnatural". P.W.10 further stated that the contusion injuries were possible due to an assault by a hard and blunt object. In the course of his cross examination, P.W.10 has stated that such a contusion would not occur on the thigh merely by holding that part of the body of the patient. The testimony of P.W. 10 was that the contusion would not occur merely because 14 the patient was rowdy and a part of the body had come into contact with a hard and blunt object unless the hard and blunt object hits that part. The contention before us of the Learned counsel for the Appellant was that as the victim was rowdy and was moving her hands and legs, she may well have sustained the abrasion and contusion on the way to the hospital. This submission cannot be accepted in the face of the evidence of P.W.10. The evidence of P.W.10, Dr. Sanap, shows the existence of a contusion over the left thigh caused due to an assault by a hard and blunt object and an abrasion over the left forearm. P.W. 7 Dr. Bellurkar who had treated the victim at the Nursing Home also deposed that there were subcutaneous deep scratch marks seen on the dorsum of both the hands and the forearms of the victim. P.W.7 stated that these injuries were fresh and would not be found if the person who was hanged had her feet on the ground. The inquest Panchanama shows marks on the right side of the wrist of the right hand of the victim; on the left hand near the wrist a dark reddish colour mark was seen. On the left leg on the thigh a dark red colour mark was also seen. These injuries show a struggle and an assault and are 15 destructive of the hypothesis that the victim committed suicide. 11. The Appellant set up a plea of alibi through the evidence of D.W.6. In his evidence D.W.6 stated that he was a bus driver and that he and the Appellant were residing in the Nagari Niwara tenements. D.W. 6 stated that he had met the Appellant on 2nd January, 2004; that the Appellant would go to drop his daughter for baby sitting and would return in the bus driven by D.W.6. On 2nd January, 2004 the Appellant, according to D.W.6, went alone with his daughter to the baby sitters' place and on his way back spoke to D.W.6 between 10.20 to 10.30 a.m. Thereafter the two parted company. In the course of his cross examination D.W.6 stated that, they had "discussed about 31.12.03". However, D.W.6 admitted that he and the Appellant were not together on the New Year's Eve nor had they been together on 1st January, 2004. D.W. 6 did not remember any other fact except the time and duration at which he and the Appellant had met on 2nd January, 2004. The evidence of D.W.6 is palpably false and it is abundantly clear that the witness has been interposed only to establish a false case of 16 an alibi. D.W. 6 furnished the exact time and duration when he met the Appellant on the date of the incident. He was otherwise unable to furnish any other details in the course of his cross examination. It is evident that the witness has given false evidence at the behest of the accused. There is another reason why the defence that is sought to be set up by the Appellant was not believable. D.W.6 deposed that the Appellant was with him between 10.20 and 10.30 a.m. P.W. 5 who according to counsel appearing for the Appellant is a witness of truth deposed that the Appellant knocked at her door at 10.30 a.m. P.W.5 in the course of her deposition has stated that the main gate was about ten minutes' walking distance from the ground floor of the building. The Appellant could not have therefore been knocking at the door of P.W.5 at 10.30 a.m. if the alleged conversation with D.W.6 had taken place between 10.20 and 10.30 a.m. 12. The burden under Section 106 of the Evidence Act lies upon the Appellant to explain circumstances which lay within his special knowledge. The date on which the incident took place was 17 a weekly off for the Appellant. According to the Appellant the victim had informed him that she was going to go late for work. The Appellant according to his own case was to drop the child at the baby sitters' house. The Appellant and his wife were the only two occupants of the house before he allegedly left to drop the child at the baby sitter. What the victim was doing before he left the house was within the special knowledge of the Appellant. There is no reasonable or valid explanation by the Appellant. The defence that the Appellant had left his home to drop the child at the baby sitters' house is sought to be buttressed by the alleged conversation with D.W. 6 between 10.20 and 10.30 a.m. The evidence of D.W. 6 is palpably false. The irresistible inference is that a false defence has been advanced to the effect that the Appellant was not at home when the incident occurred. Under Section 106 of the Evidence Act, the burden lies on the Appellant to explain facts within his knowledge. The defence that the Appellant was in conversation with a bus driver – D.W. 6, at a place outside his house, between 10.20 and 10.30 a.m. is palpably false. The Appellant has failed to explain what he was doing when 18 the incident took place. 13. P.W. 1 Sanjay Bhosale deposed that he had asked the Appellant about his whereabouts at the time of the incident. P.W. 1 stated that the Appellant had informed him that he was in the kitchen and then he stated that he was in the toilet. The Learned APP, while relying on the aforesaid part of the testimony of P.W. 1 submitted that there was no cross examination on this aspect. The attention of the Court has, however, been drawn by counsel appearing for the Appellant to the cross examination of the Investigating Officer – P.W.9 Gawde. In paragraph 33 of the notes of examination, the defence has brought out an omission on the part of P.W. 1 in the statement under Section 164. In that he had not disclosed that the Appellant has stated that he was in the kitchen or in the bathroom. Be that as it may, we are of the view that quite independent of what has been stated by P.W. 1, for the reasons already indicated, the irresistible inference from the evidence is that besides the one year old, child the Appellant and the deceased were the only two occupants of the tenement and the 19 alibi set up by the Appellant to establish that he was not present at the tenement between 10.20 and 10.30 a.m. is positively false. As already noted earlier, the testimony of D.W. 6 in that regard is false and is not worthy of credence. The Evidence Act does not contemplate that the accused should prove his case “with the same strictness and rigour as the prosecution is required to prove a criminal charge”. (Rabindra Kumar Dey v. State of Orissa1). The Court has to consider as to whether the probability of the version given by the accused throws doubt on the prosecution case. In the present case the accused has not given “a reasonable and probable explanation” to displace the burden cast by Section 106 of the Evidence Act, to explain facts which were within her special knowledge. 14. In prosecutions for criminal offences Courts are often concerned with the question of the burden of proof where certain facts are within the special or personal knowledge of the accused. Section 106 of the Evidence Act stipulates that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In Collector of Customs v. D. 1 AIR 1977 SC 170. 20 Bhoormall2 the Supreme court while examining the provisions of Sections 167 and 178-A of the Sea Customs Act held as follows : “Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. .... Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the persons concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he fails to establish or explain those facts, an adverse inference of fact may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of