1 Criminal Appeal No.435 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.435 OF 2009 Sukhram S/o. Tarachand More, Age-23 years, Occu-Labourer, R/o.Rajmane, Tq.Chalisgaon, Dist. Jalgaon APPELLANT VERSUS The State of Maharashtra, Through A.P.O. Shri.S.K.Shinde, In Crime No.54/2007 of Mehunbare Police Station. RESPONDENT Mr.A.G.Mukhedkar, learned counsel for the appellant (Appointed) Mr.D.V.Tele, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 08/02/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By this appeal, the appellant has questioned the correctness and legality of his conviction u/s. 302 of The IPC, for which he was sentenced to suffer life imprisonment and to pay fine of Rs.5,000/-, in default to suffer rigorous imprisonment of one year in Sessions Case No.179/2007, vide judgment and order dated 05/09/2008 by Additional Sessions Judge, Jalgaon. 2 Criminal Appeal No.435 of 2009 2. Such of the facts as are necessary for the decision in the appeal, can be summarized as follows : On 19/02/2007, on receipt of report of Mohan Lala Bhil (Exh. 13), in Mehunbare Police Station about the death of one Anita Sukhram Bhil, an AD was registered vide AD No.33/2007. Inquiry in the said AD was entrusted to API Sham Khanderao Shinde (P.W.No.1). During the inquiry, he visited the place of incident at Village Rajmane. He visited the house of appellant. Their he noticed that one dead body of female was lying on the Osari of the house of appellant/husband of the said female. Dead body was identified as the dead body of Anita. In presence of witnesses, he drew inquest panchnama (Exh.9) Thereafter, dead body was sent for post mortem to the Municipal Hospital at Chalisgaon. 3. In Municipal Hospital, Chalisgaon, autopsy was conducted on the dead body of Anita by Dr.Prakash Shimpi (Exh.4). During the autopsy, he had noticed following injuries. External injuries : Abrasion and ligature marks around the neck of deceased, admeasuring 30cm x ½ cm, blackish reddish. It is in +ve middle portion of neck encircling around neck. Ecchymosis + Gap of 2 cm. Posteriorly, due to hair gap. Brain : Covering of cerebrum and cerebellum congested. Brain matter congested. Walls, ribs, cartilages : Black coloured blood found. Larynx, Trachea and Bronchi : On opening, the ligature mark. 3 Criminal Appeal No.435 of 2009 Trachea compressed of Hyoid bone compressed. Right Lung : Congested. Left Lung : Congested Large Vessels : Blood present in both ventricles. He opined that the cause of death was due to Cardio-respiratory failure, due to asphyxia, due to strangulation. He has also opined that the death might have caused within 4-8 hours from the last meal. Accordingly, he had prepared post-mortem report (Exh.12). 4. P.W.No.1 Sham Shinde then prepared spot panchnama (Exh.15) in the presence of panch witnesses. From the place of offence, he seized one nylon string. Then he had collected provisional death certificate (Exh.10). During the inquiry, he recorded statements of certain witnesses. This inquiry revealed that the appellant/husband of deceased had made extra judicial confession before Police Patil and one Tatya Kedar in front of villagers. Hence he lodged complaint (Exh.16) on behalf of State in Mehunbare Police Station against the appellant accused. On the basis of this complaint, an offence came to be registered vide CR No.54/2007 u/s. 302 of The IPC against appellant. 5. Following to the registration of an offence, again the investigation was entrusted to P.W.No.1 as per directions of the Superior Officers. During the investigation, again he recorded statements of certain witnesses. He arrested the appellant on 4 Criminal Appeal No.435 of 2009 20/07/2007. Appellant was referred for his medical examination. P.W.No.4 Dr.Prakash Shimpi examined him and issued medical certificate (Exh.26). He also forwarded viscera collected during the post mortem of the deceased for chemical analysis alongwith covering letter. After receipt of C.P. Report, and after completion of investigation, he had filed charge sheet against the appellant in the Court of J.M.F.C. Chalisgaon. 6. On committal of trial to the Court of Sessions, learned Trial Court framed the charge at Exh.3 against the appellant for an offence punishable u/s. 302 of The IPC, to which appellant pleaded not guilty. Before the Trial Court, the appellant admitted inquest panchnama (Exh.9) and death certificate (Exh.10) and post mortem notes (Exh.12), spot panchnama (Exh.15) u/s. 294 of The Cr.P.C. During the trial, prosecution has examined total 4 witnesses to prove the charge lavelled against the appellant. Defence of the appellant was of alibi. On appreciation of the evidence of prosecution, learned Trial Court held appellant/accused guilty of the offence, with which he was charged and convicted him for an offence punishable u/s. 302 of The IPC, which judgment of conviction is under challenge in this appeal. 7. For better appreciation of the submissions of learned counsel for appellant, and that of learned A.P.P. for State, it is necessary to advert to the evidence of material witnesses. 5 Criminal Appeal No.435 of 2009 8. It transpired from the evidence of P.W.No.2 Tatya Deoram Kedar, who is neighbourer of appellant and deceased that he knew appellant and deceased as they were husband and wife. On 19/07/2007, when he came to know about the demise of wife of appellant, he went to the house of appellant. At the house of appellant, he saw dead body of wife of appellant Anita. He had noticed ligature marks around the neck of the deceased Anita. Villagers were gathered at the spot. One Mohan and Police Patil went to Police Station to lodge the report. He remained at the spot. On his inquiry with the appellant, appellant informed him that “he married with the deceased about 2 months back, but he was unable to establish sexual relations with his wife due to his physical disability. He is unable to satisfy his wife, hence his wife called him as ‘hijada’. He got annoyed. Appellant further discloses before him that he thought that his wife may defame him in village. When his wife was in sleep, he strangulated his wife around 1.00 a.m. with the nylon string”. On that day, mother, sister and brother of appellant were not present in the house. Appellant and his wife were alone present in the house during the night. It is not disputed in his cross examination that during that night, appellant and his deceased wife were only present in their house. He has further stated in his cross examination that appellant was weeping when he confessed before P.W.No.2 Tatya in front of the villagers. 6 Criminal Appeal No.435 of 2009 9. It is in the evidence of Dr.Prakash Sabulal Shimpi, P.W.No.4, who had conducted autopsy on the dead body of the deceased that death of deceased was not suicidal death, but was homicidal death. He has further stated in his evidence that on 23/07/2007, appellant was referred to him for his medical examination on the point, “Whether he is competent to perform sexual intercourse ?” On his examination, he found that appellant is unable to erect his penis and unable to perform sexual intercourse. He has further stated in his evidence that inspite of repeated counselling, appellant was unable to erect his penis, which might be because he was frightened. Accordingly, he issued the certificate. 10. From the evidence on record, it is clear that the case of prosecution rests on circumstantial evidence, which circumstances are : 1. During the night of 19/07/2007, appellant and his wife were only present in their house, 2. Death of wife of appellant is homicidal death, 3. Appellant made extra judicial confession before P.W.No.2 as well as Village Police Patil and others, 4. Medical examination of appellant discloses that he was not competent to perform sexual intercourse. 5. No proper explanation was offered by the appellant about the homicidal death of his wife. 6. Appellant had taken false defence of alibi. 7 Criminal Appeal No.435 of 2009 11. We have heard learned counsel for appellant and also learned A.P.P. appearing for State. Facts established from the evidence of P.W.No.2 Tatya Deoram Kedar that during the fateful night, only appellant and his deceased wife were present in their house, which fact was not disputed or challenged by the appellant in the cross examination of this witness. The last line of the examination in chief of P.W.No.1 also discloses that during the investigation, it revealed that in that night, only the appellant and his wife deceased Anita were present in their house. It is also not under dispute that marriage of appellant took place with deceased Anita prior to two months of the incident. In normal course, appellant presumed to be present in his house. Then presumption u/s. 106 lies in favour of prosecution that if the deceased is in the custody of the appellant, it is for the appellant to offer proper explanation as to how the homicidal death of his wife was occurred during that night. From the medical evidence on record, it is to be inferred and also stand established from the evidence of other witnesses that death of wife of appellant is homicidal death, which burden was not discharged by the appellant during the trial. Appellant has taken false defence of alibi which is an additional circumstance goes against the appellant, as in the cross examination of Investigation Officer, it is tried to suggest on behalf of the appellant that appellant is doing labour work of centering during the night hours and in the early morning, when he returned from his work, he came to know about the death of Anita, his wife. To prove this plea of alibi, appellant has not 8 Criminal Appeal No.435 of 2009 examined his employer or the contractor to whom he worked during that night. Thus, the circumstance that during the night of 19/07/2007, appellant and his wife were only present in their house, death of wife of appellant is homicidal death, and no proper explanation is coming from the appellant about the homicidal death of his wife, stand established. 12. It is established from the evidence of P.W.No.2 that appellant made extra judicial confession about the act committed by him in the presence of P.W.No.2 as well as Village Police Patil. It is to be noted that P.W.No.2 is the neighbourer of appellant. Their relations are cordial. P.W.No.2 has also stated that while making extra judicial confession before the villagers as well as before him, the appellant was weeping. Law is settled on his point that the conviction can be based on extra judicial confession, if such confession is voluntary and made before the person in whom he feel confidence. It is also settled position of Law that while making such extra judicial confession, the accused must not be coerced to make such extra judicial confession. It is to be noted that when this extra judicial confession was made by the appellant before P.W.No.2, he was not an accused of the offence, but he was lateron arrested by the Police as an accused in the said crime. The fact is established from the evidence on record that this extra judicial confession was made by the appellant in the early hours of 19/07/2007 while he was arrested in connection with this offence on 20/07/2007. It is also rule of 9 Criminal Appeal No.435 of 2009 prudence that such extra judicial confession require some corroboration. The motive behind the crime was that appellant was not able to perform sexual intercourse with his wife, for which, late wife of appellant abused appellant and called him ‘hijada’. This fact stands established from the medical examination of the appellant by P.W.No.4. As it is categorically stated by P.W.No.4 Dr.Prakash Shimpi that when he examined the appellant on 23/07/2007, inspite of repeated councelling, the appellant was unable to erect his penis. Hence, accordingly, he issued the certificate at Exh.26 that appellant is not competent to perform sexual intercourse, which also stands proved against the appellant. 13. Learned A.P.P. appearing for the State supports the reasoning recorded by the Trial Court while convicting the appellant accused. As the circumstances, which are incriminating in its nature, on re- appreciation of the evidence on record, chain of circumstances stand established, pointing out the guilt of the accused. Thus in substance, no error has been made by the Trial Court while convicting the appellant accused for an offence punishable u/s. 302 of The IPC and no interference is required in the said conviction at the hands of this Court. 14. Accordingly, Criminal Appeal failed and stands dismissed accordingly. 10 Criminal Appeal No.435 of 2009 15. Before parting with the judgment, we have to appreciate the able assistance of learned counsel Shri.Amit Mukhedkar, who is appointed to represent the appellant/accused. We, however, quantify the fees payable to the learned counsel appointed to represent the appellant/accused in the sum of Rs.5,000/-. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/FEB. 2011/cri.appeal 435-09