23. cri apeal 689-11 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 689 OF 2011
Suresh Shrirang Chavan
Age - 46 Years, Occ - Labourer,
R/o. Dawari Vasahat, Nandani Naka,
Jaysingpur, Tal. Shirol, Dist. Kolhapur.
[ At present lodged in Kolhapur Central
Prison, Kalamba ] .. Appellant
(Org. Accused)
Versus
The State of Maharashtra
Through Police Inspector,
Police Station Shirol, Tal. Shirol,
District Kolhapur. .. Respondent
...................
Appearances
Mrs. Nasreen S.K. Ayubi Advocate (appointed) for the Appellant
Mr. H.J. Dedia APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
REVATI MOHITE DERE, JJ.
DATE : MARCH 1, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original accused against the judgment and order dated 31.3.2011 passed by the learned Additional Sessions Judge, Jaysingpur in Sessions Case No. 12 of 2010. By the said judgment and jfoanz vkacsjdj 1 of 12 ::: Uploaded on - 08/03/2017 ::: Downloaded on - 09/03/2017 00:11:24 :::
23. cri apeal 689-11 (j).doc order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer life imprisonment and fine of Rs. 1000/-, in default S.I. for one month.
2. The prosecution case briefly stated, is as under:
(a) Deceased Vatsala was the daughter of PW 13 Kanthabai. Vatsala was married to the appellant Suresh. They had four children. Initially everything was going smoothly between Vatsala and the appellant, however, thereafter, the appellant started consuming liquor and beating Vatsala. Kanthabai tried to convince the appellant but he did not pay any attention. The appellant started taking doubt on Vatsala i.e he had some suspicion relating to her chastity.
(b) It is the prosecution case is that on 01.04.2010 at about 2.00 a.m., the appellant assaulted his wife jfoanz vkacsjdj 2 of 12 ::: Uploaded on - 08/03/2017 ::: Downloaded on - 09/03/2017 00:11:25 :::
23. cri apeal 689-11 (j).doc with a stone pestle which led to her death. The appellant then went and informed the police. FIR was registered. Thereafter investigation commenced.
(c) The dead body of Vatsala was sent for postmortem. PW 14 Dr. Patil conducted the postmortem on the dead body of Vatsala. Dr. Patil found four injuries on her person. They were all on the head and face. According to Dr. Patil, the said injuries were ante mortem injuries and they were caused by hard and blunt object. According to Dr. Patil, the cause of death was due to shock duo to cranio-cerebral injury. After completion of investigation, the charge sheet came to be filed.
3. Charge came to be framed against the appellant - original accused under Section 302 of IPC. The appellant-
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23. cri apeal 689-11 (j).doc accused pleaded not guilty to the said charge and claimed to be tried. His 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 appellant as stated in paragraph 1 above, hence, this appeal.
4. We have heard the learned Advocate for the appellant and the learned APP. After giving our anxious 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 appellant assaulted his wife Vatsala with a stone pestle on the head and face and caused her death.
5. There is no eye witness to the incident and the case is based totally on the circumstantial evidence. The first jfoanz vkacsjdj 4 of 12 ::: Uploaded on - 08/03/2017 ::: Downloaded on - 09/03/2017 00:11:25 :::
23. cri apeal 689-11 (j).doc circumstance is the conduct of the appellant. The appellant went to the police station and stated that he has murdered his wife by assaulting her with a stone pestle and the body was lying in his house. No doubt, as it was a statement made by the accused to the police, we cannot take the contents of the FIR into consideration. However, the fact remains that after the appellant made the statement to the police; when the police went to the house of the appellant, they saw the dead body of his wife lying there with injuries on her person and the stone pestle lying nearby which was blood stained.
6. One more circumstance against the appellant is that at the time of arrest, the clothes on his person were found to be stained with blood of 'B' group. The C.A. report Exh. 43/C shows that the blood group of the appellant was 'O' group. The C.A. report Exh. 45/C shows that the blood group of deceased Vatsala was 'B' group and the C.A. report Exh. 44/C shows that the clothes of the appellant at the time of arrest jfoanz vkacsjdj 5 of 12 ::: Uploaded on - 08/03/2017 ::: Downloaded on - 09/03/2017 00:11:25 :::
23. cri apeal 689-11 (j).doc were stained with blood of 'B' group. The appellant has not furnished any explanation for the presence of blood of 'B' group i.e the blood group of his wife on his clothes at the time of arrest.
7. The next circumstance against the appellant is motive. The appellant had motive to kill his wife. This is brought out in the evidence of PW 13 Kanthabai who is the mother of the deceased. Kanthabai has stated that Vatsala was her daughter. She was married to the appellant. They had four children. Earlier everything was going on smoothly between the appellant and Vatsala. Thereafter, the appellant started consuming liquor and beating Vatsala. Kanthabai has specifically stated that the appellant was having doubt regarding chastity of Vatsala. Thus, it is seen that the appellant had motive to murder his wife.
8. The last but the most important circumstance against the appellant is that Vatsala had died a homicidal death jfoanz vkacsjdj 6 of 12 ::: Uploaded on - 08/03/2017 ::: Downloaded on - 09/03/2017 00:11:25 :::
23. cri apeal 689-11 (j).doc while living in the house of the appellant along with him. In such case, it was obligatory on the part of the appellant to explain how the death of Vatsala occurred but the appellant has not furnished any explanation. There is no denial of the fact that deceased Vatsala was residing with the appellant as his wife in a hut situated at Dawary Vasahant, Nandani Naka, Jaysingpur. The death of Vatsala had occurred inside the house of the appellant in the night. It is obvious that Vatsala was in the custody of the appellant, hence, it was absolutely incumbent on the part of the appellant to explain the death of his wife Vatsala. It is pertinent to note that admittedly, the appellant and deceased Vatsala were husband and wife. They were sharing the same house and were co-habiting in the said house as husband and wife. This fact has not been disputed by the appellant. Vatsala was found dead in the house with serious injuries on her person. In such case Section 106 of the Evidence Act would come into play.
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23. cri apeal 689-11 (j).doc
9. 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 o 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 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 1 (2006)12 SCC 254 : AIR 2007 SC 144 jfoanz vkacsjdj 8 of 12 ::: Uploaded on - 08/03/2017 ::: Downloaded on - 09/03/2017 00:11:25 :::
23. cri apeal 689-11 (j).doc innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain.
10. The appellant has not brought any circumstance on record to show that any other person had reason or motive to commit the murder of Vatsala. It is not even the defence of the appellant that some robbers had entered into the house and while committing robbery, they committed the murder of Vatsala. It is not even remotely suggested to any of the prosecution witnesses that some other person than the appellant had entered the house of the appellant and had committed the murder of Vatsala. The injuries sustained by Vatsala clearly show that it is a case of homicidal death. The injuries and the circumstances in which the body was found rules out the possibility of suicidal death or even accidental death.
11. PW 14 Dr. Patil conducted the postmortem on the dead body of Vatsala. On external examination, Dr. Patil found jfoanz vkacsjdj 9 of 12 ::: Uploaded on - 08/03/2017 ::: Downloaded on - 09/03/2017 00:11:25 :::
23. cri apeal 689-11 (j).doc following injuries:-
i. CLW over central area of forehead at half root left, 2 x 2 cms x bone deep, clotted blood present, palpable fracture of frontal bone.
ii. CLW in between the eyebrows extending right side upto middle of upper eyelid, on left side upto middle of upper eye lid,lower extension is upto lower 1/3rd nose, irregular in shape, 6 x 5 cms x bone deep, bone pieces of fractured bone seen in wound, brain matter has come out of wound, clotted blood present, bleeding from nose present.
iii. CLW at left angle of mouth 3 x 2 x 2 cms. Clotted blood present.
iv. CLW at lower lip of right angle of mouth, lower four incisor teeth are lost, clotted blood present, palpable fracture of mandible on right side is noticed.
Palpable fracture of mandible on right side to maxillary bone, nasal bones, frontal bone is noticed. Hematoma with clotted blood present in frontal area of scalp. Brain is congested and brain matter has come out of through injuries at face and skull.
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23. cri apeal 689-11 (j).doc According to Dr. Patil, age of injury Nos. 1 to 4 is within 12 hours and cause of injuries Nos. 1 to 4 is hard and blunt object. In the opinion of Dr. Patil, nature of injuries Nos. 1, 2 and 4 are grievous and injury No. 3 is simple. Dr. Patil further stated that all the injuries mentioned in column No. 17 are ante mortem injuries. According to Dr. Patil, the death has occurred due to shock which must have occurred due to a blow of something and shock due to cranio-cerebral injury. The external injuries can be caused by hard and blunt object and those injuries can be caused due to a blow by the stone pestle.
12. Looking to the evidence on record, we are of the opinion that the prosecution has proved beyond reasonable doubt that it was the appellant who committed the murder of his wife Vatsala and none else. In this view of the matter, we are of the opinion that there is no merit in the appeal. The appeal is dismissed.
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13. Fees to be paid to the appointed Advocate are quantified at Rs. 5000/-.
[ REVATI MOHITE DERE, J. ] [ SMT. V.K. TAHILRAMANI, J. ]
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