7. cri apeal 34-15 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 34 OF 2015
1. Babu Janardan Fale,
2. Janardan Babu Fale,
3. Saraswati Janardan Fale
All resident of Napane Dhangarwadi,
Taluka Vaibhavwadi,
Dist. Sindhudurg.
[ At present lodged in Kolhapur Central
Prison, Kalamba, Kolhapur. ] .. Appellants
(Org. Accused 1 to 3)
Versus
The State of Maharashtra
(At the instance of Vaibhavwadi Police
Station, Dist. Sindhudurg.) .. Respondent
...................
Appearances
Ms. Rohini M. Dandekar Advocate (appointed) for the Appellants
Mr. Arfan Sait APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
DATE : AUGUST 31, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellants-original accused Nos. 1 to 3 against the judgment and order dated 28.4.2014 passed by the learned Sessions Judge, jfoanz vkacsjdj 1 of 12 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:24:13 :::
7. cri apeal 34-15 (j).doc Sindhudurg-Oros in Sessions Case No. 40 of 2013. By the said judgment and order, the learned Session Judge convicted the appellants for the offence punishable under Section 302 r/w 34 of IPC and sentenced them to suffer life imprisonment and fine of Rs. 500/-, in default R.I. for one month. The learned Sessions Judge also convicted the appellants for the offence punishable under Section 201 r/w 34 of IPC and sentenced them to rigorous imprisonment for one year and fine of Rs. 200/- in default R.I. for fifteen days. The learned Sessions Judge directed that all the sentences shall run concurrently.
2. The prosecution case briefly stated, is as under:
(a) The marriage of deceased Anjana with appellant No. 1 - Babu took place on 20.4.2013. Appellant No. 2 - Janardan is the father of appellant No. 1 and appellant No. 3 - Saraswati is the mother of appellant No. 1. After the marriage, Anjana's name was changed to Akshata. After the jfoanz vkacsjdj 2 of 12 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:24:13 :::
7. cri apeal 34-15 (j).doc marriage, Anjana started residing with her husband and in-laws i.e all the three appellants at Village Napane, Dhangarwadi. After the marriage, Anjana used to come to the house of her mother i.e PW 1 Anandi. Anjana used to tell her mother that her husband and in-laws were taunting her on account of suspicion regarding her character.
(b) On 17.7.2013 i.e one day before the incident, PW 1 Anandi went to the matrimonial house of Anjana. That time, Anjana told her that her husband and in-laws repeatedly taunted her and beaten her.
(c) On 18.7.2013 at about 2.00 p.m., appellant No. 1 informed Janardan Bodake who was the son-in-law of PW 1 Anandi that Anjana was ill and he asked them to come to see her. On the same day, Anandi, her brother-in-law and other family jfoanz vkacsjdj 3 of 12 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:24:13 :::
7. cri apeal 34-15 (j).doc members went to Village Napane to the house of the appellants. They reached the house at about 5.00 p.m. That time, they saw Anjana was dead. Anjana had sustained burn injuries. On the same day, PW 1 Anandi lodged FIR at Vaibhavwadi Police Station. The said FIR is at Exh. 25. Thereafter, investigation commenced.
(d) The dead body of Anjana was sent for
postmortem. PW 3 Dr. Maharnur conducted the
postmortem on the dead body of Anjana. He
found that the tongue had protruded out of the mouth and bloody fluid was oozing from nostrils. Superficial burns were found on the face and all over the body. Dr. Maharnur found that all the burn injuries found on the dead body were postmortem injuries. He noticed that there were pressure marks on neck at both side of trachea. In his opinion, the cause of death was due to jfoanz vkacsjdj 4 of 12 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:24:13 :::
7. cri apeal 34-15 (j).doc cardio respiratory arrest due to asphyxia due to strangulation. This shows that first Anjana was strangulated and thereafter her body was set on fire to cause the evidence of crime to disappear. After completion of investigation, the charge sheet came to be filed.
3. Charge came to be framed against the appellants - original accused Nos. 1 to 3 under Sections 302 r/w 34 of IPC, 498-A r/w 34 of IPC and 201 r/w 34 of IPC. The appellants- accused pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellants as stated in paragraph 1 above, hence, this appeal.
4. We have heard the learned Advocate for the
appellants and the learned APP. After giving our anxious
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7. cri apeal 34-15 (j).doc
consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellants caused the death of Anjana by strangulating her and thereafter, they set the dead body on fire to cause the evidence of crime to disappear.
5. There is no eye witness in the present case and the case is based entirely on circumstantial evidence. Two main witnesses in the present case are PW 1 Anandi - the mother of deceased Anjana and PW 3 Dr. Maharnur. PW 1 Anandi has stated that the marriage of Anjana and appellant No. 1 Babu took place on 20.4.2013. After the marriage, Anjana went to reside with her husband and in-laws i.e the appellants at Village Napane, Dhangarwadi. After the marriage, Anjana's name was changed to Akshata. After the marriage, Anjana used to come to her mother's house and used to tell her that her husband and in-laws were taunting jfoanz vkacsjdj 6 of 12 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:24:13 :::
7. cri apeal 34-15 (j).doc her on account of suspicion regarding her character. Anandi has further stated that on 17.7.2013 i.e one day before the incident, she went to the matrimonial house of Anjana. That time, Anjana told her that her husband and in-laws repeatedly taunted her and beat her. On 18.7.2013 at about 2.00 p.m., appellant No. 1 informed Janardan Bodake who was the son-in-law of PW 1 Anandi that Anjana was ill and he asked them to come to see her. On the same day, Anandi, her brother-in-law and other family members went to Village Napane to the house of the appellants. They reached the house at about 5.00 p.m. That time, they saw that Anjana was dead. Anjana had sustained burn injuries. On the same day, PW 1 Anandi lodged FIR at Vaibhavwadi Police Station. Thereafter, Anandi came to know that Anjana died due to strangulation, hence, her further statement was recorded by the police. Thus, the evidence of PW 1 Anandi shows that all the three appellants had motive to kill Anjana. In addition, the evidence of PW 1 Anandi shows that though Anjana was found dead with burn injuries on the body, the cause of jfoanz vkacsjdj 7 of 12 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:24:13 :::
7. cri apeal 34-15 (j).doc death was not actually due to burns but due to strangulation. Obviously Anjana could not have strangulated herself and set herself on fire. Only Anjana and the appellants were residing in the house. Moreover, the appellants had motive to kill Anjana.
6. The evidence of PW 1 Anandi shows that Anjana was residing with the appellants in her matrimonial house. Except the appellants, there were no other person in the house. All the three appellants had motive to kill Anjana. In addition, it is seen that Anjana died due to strangulation. Thereafter, the appellants made it seen that Anjana had in fact died on account of sustaining burn injuries. This is falsified by the medical evidence.
7. PW 3 Dr. Maharnur conducted the postmortem on the dead body of Anjana. He found that the tongue had protruded out of the mouth and bloody fluid was oozing from nostrils. There were burn injuries on the face, chest, back, abdomen and other parts of the body. However, Dr. Maharnur noticed that all the burn injuries found on the body jfoanz vkacsjdj 8 of 12 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:24:13 :::
7. cri apeal 34-15 (j).doc were postmortem injuries. Dr. Maharnur noticed pressure marks on the neck, oval in shape at both side of trachea. The tongue which had protruded out was also partially burnt. The cause of death was due to cardio respiratory arrest due to asphyxia due to strangulation. Dr. Maharnur reached the conclusion that all the burns found on the dead body were not ante mortem burns because no blisters were found on the skin and line of redness which is found when a person sustains burn injuries when he is alive was not found on the body of Anjana. In addition, smoke particles which are found in the case of a victim dying due to burns were not found in inner tracheal line of Anjana. Dr. Maharnur stated that in case of suicidal burns, the tongue is found inside the buccal cavity. Dr. Maharnur categorically stated that suicidal death is not possible due to strangulation.
8. Though Exh. 40 shows that Anjana had sustained 85% burns, the evidence of Dr. Maharnur shows that the death was not on account of burns but on account of strangulation. As stated earlier, the appellants and Anjana were the only jfoanz vkacsjdj 9 of 12 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:24:13 :::
7. cri apeal 34-15 (j).doc persons staying in the house. There were no other persons residing in the housing. In addition, the appellants had motive to kill Anjana. Looking to the fact that the appellants and Anjana were the only persons in the house and Anjana was found dead in the house, in such case, the appellants have to explain how the deceased sustained injuries and died. In this connection, we may refer to Section 106 of the Evidence Act. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principle which underlies Section 106 of the Evidence Act can be applied in similar cases. In the case of State of Rajasthan Vs. Kashi Ram1, the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in 1 (2006)12 SCC 254 : AIR 2007 SC 144 jfoanz vkacsjdj 10 of 12 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:24:13 :::
7. cri apeal 34-15 (j).doc discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain. In the present case, none of the appellants have offered any explanation in relation to the death of Anjana which took place in their house. This as per Section 106 of the Evidence Act is a very strong circumstance against the appellants.
9. In view of the above, we are of the opinion that the prosecution has proved beyond reasonable doubt that the appellants committed the murder of Anjana by strangulating her and thereafter set her on fire in order to cause jfoanz vkacsjdj 11 of 12 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:24:13 :::
7. cri apeal 34-15 (j).doc disappearance of evidence. Thus, we find no merit in the appeal. The appeal is dismissed.
[ DR. SHALINI PHANSALKAR-JOSHI, J ] [ SMT. V.K. TAHILRAMANI, J. ] jfoanz vkacsjdj 12 of 12 ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:24:13 :::