Case: Babu Baban Shinde Vs. State of Maharashtra

( 2 ) THE facts giving rise to the trial may be stated as thus:( 3 ) THE deceased involved in the case one Suman, the daughter of PW 2 babu Narma Padval, a village Kotwal of village Gosasi situated in Khed taluka of Pune District. Deceased Suman was married to the appellant accusedyears prior to the incident in question. The couple is blessed with two children viz., Dilip and Baras. The eldest son Dilip continued to stay with his grandfather PW 2 Babu Nama while the accused was with suman and the other son Baras in the same village but in a different locality.( 4 ) ABOUT two years prior to the incident, the accused had shifted to village Ralegaon for doing the labour work with his wife and son Baras and he continued to stay there till the present incident. PW 3 Kalabi Bhau Padval is also a resident of village Ralegaon and used to work along with the accused at the same site. An illicit intimacy then developed between the accused and pw 3 Kalabai and after sometime, PW 3 Kalabai started residing in the house of the accused with Suman, The illicit intimacy between the accused and Kalabi naturally flared the quarrels between the husband and wife and theng Suman. About a week prior to the incident, deceased Suman ultimately returned back to village Gosasi and started staying with her father PW 3 Babu Nama Padial along with her son Dilip who was already staying there. The incident alleged to have taken place at night onat village Gosasi, Taluka: Khed, District Pune. The accused, on that Friday, at about 11 p. m. reached the house of PW 2 Babu Nama, hislaw, and woke his wife Suman from the sleep and asked her to accompany him to the house of PW 4 Chima Shrawan Shinde on the pretext that their son Baras was with Chima and as such, he was to be brought back Because of the strained relations between the husband and the wife, PW 2 Babu Nama naturally suspected aand as such, insisted that the accused should take along with him PW 5 Cbanguna Devaji Shinde, aof his near relation. The accused then went to the house of PW 5 Changuna and brought her to the house of hisBabu Nama and after awakening Suman from sleep, the accused, his wife Suman and PW 5 Changuna left the house of PW 2 Babu nama towards the house of Chima. It was practically midnight at that time The house of Chima is located about two furlongs away from the house of PW2 Babu Nama. When the accused along with his wife and changuna reached the house of Chima, it is alleged that the accused asked changuna to go back and accordingly, she returned to the house of PW 2 babu Nama. The accused then left in the company of his wife Suman PW 2 babu Nama, on finding Changuna returning alone, made the necessary enquiries and came to know that she was sent back by the accused It is the case of the prosecution that as a matter of fact, Baras, the son of the accused and deceased Suman wes not with PW 4 Chima and this was a mere pretext to take Suman out of the house of PW 2 Babu Nama. The next day morning, at about 8. 00 a. m., when Bhagubai, the wife of Babu Nama returned back to the house from the well after fetching water, she noticed the dead body of her daughter Suman lying on the road by the side of the well and she in her turn narrated the death of Suman to PW 2 Babu Nama. Vithal Padval is the brother of the complainant Baban Nama and his wife Venabai also saw the dead body of Suman lying on the road near an agricultural field and she also narrated the incident to PW 2 Babu Nama. The father of the deceased PW 2 babu Nama immediately rushed to the scene and found that his daughter Suman was lying dead with injuries on her person, including a black stripped mark around her neck and bruises on her left hand. The incident was then narrated to the police patil of the village and after ascertaining the truthfulness of the news of death of Suman, Babu Nama. the police patil aud Bapu Nana gorade (PW 6) then proceed to the Police Station at Khed where Babu Nama lodged his complaint (Exhibit 23 ). PW 11 Uttam Rajaram Bhise was attached to the police station at the material time and on recording the FIR (Exhit. 23), registered the offence at C. R No. 21 of 1989 under Section 302 IPC against the present appellant, PW 12 Shahaji Shrirangrao Salunkhe, Dy. S. P. of the said division took over the investigation and verified the various panchnamas onThe dead body of Suman was then sent to the Sassoon Hospital, Pune forexamination where PW 9 Dr. Ajay Narmaprasad Kevaliya carried out the autopsy as per Exhibit 31. The attempts to accost the accused were made but they all were futile. The clothes on the person of the deceased and the blood of the deceased came to be attached under a panchnama, Exhibit 10. The Investigating Officer then carried out the search for the accused for three more days and the accused ultimately came to be arrested onunder a panchnamas Exhibit 11 On the same day, the accused while in custody, made a voluntary statement that he shall produce a stick kept concealed under thorn of the field and a memorandum, exhibit 20 was accordingly made. The accused then led panchas and the police to Gosasi village and got down in the stream and then took out the stick, article 9 and produced it before the panchas and it was attached under a panchnama Exhibit 21. As much as the accused had sustained certain injuries he also came to be medically examined by PW 7 Chandrakant Dagadoba saikwad and also PW 10 Hemant Dinkar Satarkar. All the articles collected during investigation were then sent to the C. A. for examination and on receiving the reports of the C.A., and on completion of the other necessary investigation, the appellant came to be89 for the alleged offence of murder under Section 302 IPC and he ultimately stood his trial in Sessions Case No. 241 of 1989 before the Additional Sessions Judge at5 ) THE accused denied the charge and claimed to be tried. The defence is of complete denial. On consideration of evidence on record, the Additional sessions Judge found that the evidence on record was sufficient to inspire the confidence and was legal and enough to hold the accused guilty of the alleged offence of murder. By an order datedthe accused came to be convicted and sentenced as aforesaid and it is this order of conviction and sentence that is being challenged in the present appeal by the6 ) IT is not disputed before us that deceased Suman died homicidal death. It is further not disputed that the case at hand is not blessed with the evidence of an eye witness and the prosecution exclusively hands on the circumstantial pieces of evidence The Additional Sessions Judge, Pune has found the circumstances, alleged and proved by the evidence on record, as sufficient to hold the appellant accused guilty and has ultimately held him as the culprit in the present case.

Reasoning:
It is, therefore, necessary to ascertain from the evidence on record as to whether these various circumstances can be said to have been duly and sufficiently proved, and as to whether they are sufficient to sustain a conviction of theThis is required more in as much as there is no evidence of anin this case and the fate of the prosecution hangs merely on the circumstantial pieces of evidence. ( 9 ) IN the absence of any evidence of anit would not be merely academic to consider and find out as to whether the accused appellant had any motive or intention to kill his own wife. It need not be stated that the question of motive assumes rather academic interest when the prosecution desires to fasten the criminal liability on the basis of the evidence of an eyewitness. Therefore, before coming to the evidence on record so as to rind out as to whether the material circumstances have been proved or not, it would be proper and desirable to consider the evidence from the point of motive on the part of theto do away with his own wife. ( 10 ) IT is not disputed that deceased Suman was the wife of the appellant accused and the couple has been blessed with two sons viz. Dilip and Baras it is also not disputed that the deceased was staying with the accused and one son Baras at Ralegaon at the time of the incident in as much as the accused had shifted to that place to do the labour work. PW 2 Babu Kama is the father of the deceased and PW 5 Changuna is theof the brother of PW 2 Babu Nama. It is further undisputed that just prior to the incident, the deceased Suman had come to village Gosasi and had started living with her own father as there used to be quarrels between her and accus ed because of the illicit intimacy between the accused and PW 3 Kalabai In addition to these admitted facts, it may further be noted that PW 2 Babu nama, the complaint in the present case and the father of the deceased has stated on oath in his evidence at Exhibit 22 that during the marital tenure, the accused toSuman as he had kept a mistress viz. , PW 3 Kalabai. There is noon this point. Further, it may be noted that the prosecution has adduced the evidence of PW 3 Kalabai Padval at Exhibit 24 and she has affirmed about the illicit intimacy between her and the accused and she is emphatic in her evidence that deceased Suman used to quarrel with her in the house of the accused as she did not like the love affair of the accused. It is pertinent to note that the evidence of PW 3 Kaiabai remained unshattered inIt is, therefore, a proved fact in the case at hand that Accused No. 1 kept PW 3 Kalabai as his mistress and used to stay with her and with his wife Suman at Ralegaon prior to the incident. It would, therefore, be not improper to conclude that deceased Suman was admittedly an hindrance in the relationship between the accused and PW 3 Kaiabai and quarrels used to ensue between the two ladies and also between the accused and deceased Suman. It is most natural and believable when pw 2 Babu Nama deposes in his evidence that deceased Suman used to dislike this illicit intimacy between her husband and Kalabi and as such, she has started staying with him as there was no alternative for her. The admitted and proved facts on record, as discussed above, are, in our opinion, sufficient to conclude that themust be cherishing a desire to remove the obstacle of his wife Suman so as to enjoy freely the illicit intimacy with PW 3 kalabai. The case at hand, in our opinion, is therefore, placed with sufficient circumstances and evidence on record to hold that the accused must have a requisite motive and intention to remove his own wife Suman from his own life.( 11 ) KEEPING in view this, it would be necessary to proceed further with the evidence on record so as to find as to whether the material circumstances can be said to have been sufficiently proved by the prosecuting agency. PW 2 Babu Nama and PW 3 Kalabai have both deposed about the illicit intimacy between the accused and Kalabai and their staying together in one house along with deceased Suman just prior to the incident. PW 2 Babu Nama then further deposed that just prior to the incident, his daughter Suman had started staying with him because of this love affair of her husband and be then states on oath in respect of the incident in question. It is in his evidence that the accused reached his house at 11 00 p m. on the day of the incident when the accused asked the permission to take Suman with him so as to fetch the other son Baras from the house of Chima, Babu Nama himself refuted the idea and was not ready to send his daughter Suman in the company of the deceased alone. It is further in his evidence that he then asked the accused to bring PW 5 Changuna and then to take Suman with her to the home of Chima, According to his evidence, the accused accordinglyat the scene with PW 5 Changuna and thereafter the accused, his wife Suman and Changuna left the house of the complainant Babu Nama This evidence on oath of the complainant stands substantially corroborated by the sworn testimony of PW 5 Changuna. She stats in her evidence on oath that the accused asked her to accompany to the house of Chima and she, accordingly after awakening Suman from the sleep. left with the accused and Suman towards the house of Chama It is pertinent to note that the sworn testimony of both these witnesses remained unshaken inand nothing has been brought on record so as to disbelive the sworn testimony of these two witnesses. It is further to be noted that PW 5 Chaneura is a distant relation of the accused and there is nothing even to indicate as to why she should state falsely against the accused involving him in the present case. The evidence of PW 5 Changuna is straightforward one and does not suffer from any exaggeration. In view of anything on record to disbelieve the sworn testimony of these two witnesses, it will have to be held that the accused arrived at the house of hisBabu Nama and took away his own wife Suman in the company of PW 5 Changuna at about midnight on the day of the incident,( 12 ) IT is alleged by the prosecution that the accused took away his wife out of the house of her father on the pretext that they were to go to the house of Chima so as to bring their son Baras and probably, it is because of this that deceased Suman must have ultimately consented to go along with the accused. This pretext, however, turned out to be a false one as the accused did not take deceased Suman ultimately to the house of PW 4 Chima. It is to be noted in this connection that PW 4 Chima had adduced in his evidence at Exhibit 25 and has emphatically stated that during the night of the incident neither the accused nor his son had been to his house and the accused never can e to his house nor he had kept his son in his house. This evidence of the cousin brother of the accused has, also not been shattered infurther, it may be noted that PW 5 Changuna also states on oath that when three were proceeding towards the house of Chima, accused asked her to go back and she accordingly returned back to her vasti. It is, therefore, a proved fact that PW5 Changuna did not accompany the accused and Suman thereafter. In view of this evidence on second, which has remained unshaken, the Additional sessions Judge was justified in holding that the accused took his wife suman out of the house of her father on a false pretext to bring their son Baras from the house of Chima The circumstances further prove the accused and his wife Suman having been seen last together PW 5 Changuna is a small girl, aged about 15 years, and admittedly the accused is her uncle Nothing has been brought on record so as to disbelieve her sworn testimony. It would be really fatuous to say that PW 5 Changuna bad any grudge against her own uncle so as to depose falsely. It may also further be noted that nothing material has been elucidated in theof this witness and she has stood thethoroughly and boldly. The evidence of the girl is not only artless but unexaggerated and stated as a simple narration. It is sufficient to inspire confidence and in the absence of anything contrary on record to discard the sworn testimony, her evidence fating artless and natural is liable to be accepted. Further, the evidence of PW 5 Chima also finds sufficient corroboration from the evidence of PW 2 Babu Nama. The father of the deceased had stated that after the accused, his wife Suman and PW 5 Changuna left his wife at 11 p. m. he noticed the return of Changuna alone to the vasti and on making the enquiries with her, he came to know from her that the accused and Suman went in company of each other. It may be stated at this juncture that the dead body of Suman was found in the early morning of the next day on the road and it was just near the house of PW 4 Chima. The circumstance in respect of the last seen together evidence is not only sufficiently and cogently proved by the evidence on record but it would also adequately inspire the confidence. It, therefore, stands proved that the accused took deceased Suman at 11. 00 p. m. on the night of the incident from the house of her father on a false pretext of bringing their son Baras from the house of PW 4 Chima and the only third person in their company viz., PW 5 Changuna was also sent back by the accused and thereafter, it was only the accused and his wife who were in company of each other till the dead body of Suman was noticed on the road the next day morning. The evidence of both these witnesses has, therefore, been found sufficient enough to inspire the confidence and we do not find any infirmity in the reasoning of the trial Court in keeping reliance on the evidence of these two witnesses. ( 13 ) AT this juncture, the defence of the accused may be considered It is pertinent to note that the defence of the accused is one of a total denial and if the statement of the accused recorded under Section 313 of the Code of criminal Procedure is perused, he strikes up to one answer that everything is false. If the evidence on record is sufficient to prove the circumstance of last seen together and if it is duly proved by the prosecution that it is only the accused who was in the company of the deceased just prior to the incident, then, the failure on the part of the accused to offer any explanation would provide a supporting link to the chain of circumstances In this connection, a useful reference may be made to the observations made by the Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, 1984 SCC 487. It has been observed by the Supreme Court thus:"it would be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz,, before a false explanation can be used as additional link, the following conditions must be satisfied(i) various links in the chain of evidence led by the prosecution had been satisfactorily proved, (ii) the said circumstance points to the guilt of the accused with reasonable definiteness, and (iii) the circumstance is in proximity with the time and situation". It has, therefore, been held that if those essential conditions are fulfilled, then, the absence of explanation on the part of the accused would provide an additional link to complete the chain of the circumstances. Coming to the facts of the case at hand, the evidence of PW 2 Babu Nama, PW 3 Kalabai, pw 4 Chima and PW 5 Changuna, sufficiently prove the chain of circumstances and all the material circumstances can be said to have been satisfactorily and duly proved by the evidence of the said witnesses. It is undisputed that the accused is the husband of the deceased and as stated above, there is sufficient and reliable evidence on record to prove the motive on the part of the accused to remove his wife Suman from the scene of life so as to continue with his illicit intimacy with PW 3 Kalabai. The circumstances are, therefore, in our opinion, sufficient to point out the guilt of the accused! it is in view of the evidence as discussed above that the question of failure on the part of the accused to offer an explanation that assumes importance. It was the accused only who was aware as to what had happened after Changuna PW 5 was sent back and he and his wife Suman proceeded further. If, therefore, there is no explanation on the part of the accused either in his statement under Section 313, Cr. P. C. or any indication to that effect in theof any of these witnesses, this would supply an additional link so as to complete the chain of circumstances.( 14 ) THERE are also other material circumstances on record which would corroborate the story of the prosecution. PW 12 Shahaji Shrirangrao Salunke, the Investigating Officer has said in his evidence that right fromthe search for apprehending the accused was on and he is emphatic that the police staff was sent to different places to search the accused but he was not traced. It is an admitted position that it is only onthat the accused came to be accosted and arrested under a panchnama, Exhibit 11. There is, therefore, unshaken evidence on record to prove the abscondency of the accused. It is not doubt true that no much importance can be attached to the circumstance of the abscondency of the accused but we are of the opinion that the abscondency in the present case assumes importance because of the following reasons. ( 15 ) IT is to be noted that when the accused came to be arrested, he was found to have sustained two injuries on his person. PW 7 Chandrakant dagadobai Gaikwad, a compounder working with one Dr. Surana noted the injuries on the person of the accused onPW 10 Hemant Dinkar satarkar has examined the accused onan has found abrasions on both arms and an old abrasions on the cheek. The injury of scilp was found to be six days old and according to the Medical Officer, it was possible to by scratch of nail. In this connection, it may further be noted that PW 9 Ajay Narmaprasad, who carried out the autopsy on the dead body Suman has stated in his evidence that contused abrasions over anterior part of neck overlying cartilage horizontally situated must have been caused by friction with a pressure and it was possible if a stick like Article 9 involved in this case was pressed on the neck of the deceased In the opinion of the doctor, the cause of death was asphyxia as a result of compression of neck associated with evidence of smothering. The medical evidence on record, therefore, proves that the deceased must have died because of the pressing of her neck and it would not bo unnatural to expect the victim to resist so as to avert an attack. It would, therefore be natural to expect that in an attempt to resist a struggle, the injury on the cheek of the accused must have been caused because of the nail of the deceased It cannot be expected even for a moment that deceased Suman must not have resisted. If that is so, she must have struggled to save her own life and in that attempt, it is not improbable that the accused would receive some injury on his face. It may also be noted further that this scratch injury on the face of the accused has been found to be six days old and it then corresponds to the date and time of the incident. As stated earlier, there is also no explanation on the part of the accused to explain the injuries on his person the circumstance of presence of unexplained injury on the person of the accused has also, in our opinion, provided a sufficient link to the chain of circumstances.( 16 ) IT is then alleged by the prosecution that after the incident the accused disappeared from the scene, concealed himself and avoided the arrest for about six days This is sufficiently proved by the evidence of PW 12 Shahaji Shrirangrao Salunke, the Investigating Officer together with the specific recitals of the arrest panchnama at Exhibit 20 The proved abscondency in the present case, in our opinion, is also one of the material circumstances so as to complete the chain of circumstances. The Additional sessions Judge has held the evidence of the prosecution in the shape of discovery of stick, Article 9 has not proved and we are also of opinion that the evidence in this connection is insufficient to inspire confidence However leaving aside this circumstantial piece of evidence in the shape of discover of an article in the instant case, all other circumstances as detailed above have been, in our opinion, satisfactorily established by the evidence on record it is, therefore, amply and satisfactorily proved by the prosecution that the relations between the deceased and the accused were strained because of the love affair of the accused with his keep and as such, he bad a requisite motive to remove his own wife from the scene of life and at the time of the incident it is only that he who was found in the company of his own wife and that too at an odd hour at night and immediately on the next day morning the dead body of Suman was found lying on the road. The circumstance as stated above has also been satisfactorily established that the accused had taken out his own wife Suman out of the rouse of her father on a false pretext of fetching her son Baras and instead of taking her to the house of China PW 4 he not only asked Changuna to return back but have been left in the company of his wife. As started above, there is no explanation on the part of the accused as to what happened thereafter to his wife who was found in company of the accused lastly prior to her death. All these proved material circumstances leave no hypothesis other than the guilt of the accused.fact involved in the said case and the facts in the case at hand are clearly distinguishable In the case before the Supreme Court, the accused was found in the company of the deceased at 5 p. m. and the dead body related to the deceased on the facts of the said case, it has, therefore been found at 5. 30 p. m. lastly, the finding of the dead body after three hours would not be sufficient to hold the appellant guilty. Coming to the facts of the case at hand, it may be reiterated that theis admittedly the husband of the deceased and he was found in her company at night on the date of the incident and that too on the outskirts of a small village and on the background of the requisite motive on his port to remove her from the scene of life so as to enjoy the illicit intimacy with his keep. It would be proper to hold that the circumstances are not capable of suggesting ant reasonable hypothesis other that the guilt of the appellant.