8. cri apeal 650-14 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 650 OF 2014
Raju Pandurang Pawar ]
Occ. : Labour, Age - 25 Years, ]
R/o. Post Rajeaon, Taluka & District ]
Nanded. ]
At present Vajreshvari Zopadpatti, ]
Panchvati Nashik. ]
(At present lodged in Nashik Road Central ]
Prison, Nashik). ] Appellant
(Org. Accused)
Versus
State of Maharashtra ]
Through Police Station, District Nashik ]
C.R. No. 50/2010 ] Respondent
...................
Appearances
Ms. Rohini M. Dandekar Advocate (appointed) for the Appellant
Ms. M.H. Mhatre APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI, Acting C.J. &
M.S. KARNIK, J.
DATE : JANUARY 4, 2018.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original accused against the judgment and order dated 28.11.2008 passed by the learned Ad-hoc Additional Sessions Judge-1, Nashik in Sessions Case No. 102 of 2006. By the said jfoanz vkacsjdj 1 of 12 ::: Uploaded on - 16/01/2018 ::: Downloaded on - 16/01/2018 23:50:56 :::
8. cri apeal 650-14 (j).doc judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life.
2. The prosecution case briefly stated, is as under:
(a) Deceased Manjula was the daughter of PW 1 Janabai and PW 3 Gopinath. Manjula was married to the appellant about four years prior to the incident. After the marriage, Manjula went to reside with the appellant in her matrimonial home.
The appellant used to ill-treat Manjula. The appellant had suspicion that Manjula had practiced black magic on him, hence, on 8.1.2006, the appellant committed the murder of his wife Manjula by strangulating her with an iron chain.
Thereafter, the appellant went to Panchvati Police Station which was situated nearby and informed the officer on duty i.e PW 6 PSI Deshmukh that he had committed the murder of his wife by jfoanz vkacsjdj 2 of 12 ::: Uploaded on - 16/01/2018 ::: Downloaded on - 16/01/2018 23:50:56 :::
8. cri apeal 650-14 (j).doc strangulating her with an iron chain. This statement was made in presence of PW 4 Police Naik Kazi. PW 6 PSI Deshmukh lodged the FIR. Thereafter, investigation commenced. 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 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 for the State. 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 jfoanz vkacsjdj 3 of 12 ::: Uploaded on - 16/01/2018 ::: Downloaded on - 16/01/2018 23:50:56 :::
8. cri apeal 650-14 (j).doc the evidence on record, for the reasons stated below, we are of the opinion that the appellant strangulated his wife with an iron chain and caused her death.
5. There is no eye witness in the present case and the case is totally dependent on circumstantial evidence. The prosecution has heavily relied on the evidence of PW 4 Police Naik Kazi and PW 6 PSI Deshmukh. In order to prove motive, the prosecution has relied on the evidence of PW 1 Janabai and PW 3 Gopinath who were the parents of deceased Manjula.
6. PW 1 Janabai has stated that her daughter Manjula was married to the appellant four years prior to the incident. The appellant was ill-treating her daughter Manjula. Manjula used to tell her about the ill-treatment given to her by the appellant. PW 1 Janabai has stated that the appellant was suffering from stomach ache and he was under impression that they have done black magic on the appellant.
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8. cri apeal 650-14 (j).doc
7. PW 3 Gopinath who was the father of Manjula has stated that his daughter used to tell them that her husband i.e the appellant ill-treating her. She also used to tell him that her husband was making allegations against her about black magic.
8. As stated earlier, the prosecution has heavily relied on the evidence of PW 4 Police Naik Kazi and PW 6 PSI Deshmukh. PW 4 Police Naik Kazi has stated that on 8.1.2006, he was attached to Panchvati Police Station. At about 10.00 a.m. to 10.30 a.m., the appellant came to the Police Station. The appellant stated that he had killed his wife as his wife was doing black magic on him. No doubt, we have to exclude from consideration the statement of the appellant to the police that he had killed his wife, however, the statement of the appellant that his wife was doing black magic on him can be taken into consideration because that could not be said to be a confessional statement. This shows the motive for the appellant to commit the crime. PW 4 jfoanz vkacsjdj 5 of 12 ::: Uploaded on - 16/01/2018 ::: Downloaded on - 16/01/2018 23:50:56 :::
8. cri apeal 650-14 (j).doc Police Naik Kazi has further stated that after the appellant made a statement to him, they went to the spot along with the appellant. There they saw the dead body of one lady (Manjula) lying in the house. There was injury on the hand of the lady and blood was oozing from it.
9. PW 6 PSI Deshmukh has stated that on 8.1.2006, he was attached to Panchvati Police Station. At about 11.00 a.m., the appellant came to the Police Station in a hurry and told that he had killed his wife by strangulating her with an iron chain. The appellant has given his name as Raju Pandurang Pawar. Again, we cannot take this statement made by the appellant to PSI Deshmukh into consideration, however, PSI Deshmukh has also stated that the appellant told him that since last 6 months, his wife had done black magic on him. This again shows the motive for the appellant to commit the crime. As stated earlier, after the appellant made a certain statement in presence of PW 4 Police Naik Kazi and PW 6 PSI Deshmukh, the police along with the jfoanz vkacsjdj 6 of 12 ::: Uploaded on - 16/01/2018 ::: Downloaded on - 16/01/2018 23:50:56 :::
8. cri apeal 650-14 (j).doc appellant and other staff went to the spot where they saw the wife of the appellant lying dead with strangulation marks on her neck.
10. It is the prosecution case that the appellant committed the murder of his wife Manjula by strangulating her with an iron chain. PW 5 Dr. Barve conducted the postmortem on the dead body of Manjula. She found ligature marks on the neck. There were three ligature marks one above the other and close to each other. In addition, she noticed three injuries on the left wrist and hand. In addition, Dr. Barve noticed that left two incisors had fallen and there was bleeding from the gums. One abrasion was also found on the left leg. According to Dr. Barve, all the injuries were ante mortem injuries. In the opinion of Dr. Barve, the death was caused due to asphyxia due to strangulation. Dr. Barve has further stated that the injuries of ligature marks could be caused by Muddemal Object No. 1 i.e iron chain. Thus, the medical evidence is in consonance with the prosecution jfoanz vkacsjdj 7 of 12 ::: Uploaded on - 16/01/2018 ::: Downloaded on - 16/01/2018 23:50:56 :::
8. cri apeal 650-14 (j).doc case.
11. Thus, after the appellant made a certain statement at the Police Station in presence of PW 4 Police Naik Kazi and PW 6 PSI Deshmukh, when the police went with the appellant to the spot to verify the fact, they found the wife of the appellant lying dead with strangulation marks on her neck. PW 5 Dr. Barve also found bleeding injuries on the person of Manjula. At the time of arrest, the pant on the person of the appellant was found stained with blood. The pant had few blood stains ranging from 0.1 c.m. to 2 c.m. in diameter on the front portion. PW 2 panch witness Hirtakar has deposed about this aspect. The pant was sent to C.A. As per C.A. report Exh. 12, the pant was stained with human blood. In this connection, we may usefully refer to the decision of the Supreme Court in the case Gura Singh Vs. State of Rajasthan1, wherein it has been observed as under :
" In view of the authoritative pronouncement of this Court in Teja Ram Case (1999) 3 SCC 507) we do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the 'origin 1 (2001) 2 SCC 205 jfoanz vkacsjdj 8 of 12 ::: Uploaded on - 16/01/2018 ::: Downloaded on - 16/01/2018 23:50:56 :::
8. cri apeal 650-14 (j).doc of the blood, the trial Court could not have convicted the accused. The Serologist & Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant."
Similar view has been taken by the Supreme Court in the cases of R. Shaji Vs. State of Kerala2, Molai & Anr. Vs State of Madhya Pradesh.3 and Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh4. It is pertinent to note that the appellant has not given any explanation for the presence of blood on his clothes.
12. It has not been brought on record that anyone else had any motive to do away with the wife of the appellant but on the other hand, the evidence on record shows that the appellant had motive to commit the murder of his wife Manjula. The evidence of PW 6 PSI Deshmukh shows that 2 (2013) 14 SCC 266 3 1999(9) SCC 581 4 AIR 1991 SC 1853 jfoanz vkacsjdj 9 of 12 ::: Uploaded on - 16/01/2018 ::: Downloaded on - 16/01/2018 23:50:56 :::
8. cri apeal 650-14 (j).doc the appellant and his wife Manjula were residing in the house of Ramnath Pawar at Nasik where the appellant had come to take treatment. However, on that day, Ramnath and his wife had left the house at 6 a.m. Thereafter, there was no one in the house except the appellant and his wife Manjula. Few hours thereafter, Manjula was found dead. Thus, when Ramnath and his wife came back to the house, they found that Manjula was already dead. As stated earlier, the evidence on record shows that the appellant and his wife Manjula were the only two persons in the house at the relevant time. In such case, the appellant has to explain how the deceased sustained injuries and died. In this connection, we may refer to Section 106 of the Evidence Act.
13. 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 jfoanz vkacsjdj 10 of 12 ::: Uploaded on - 16/01/2018 ::: Downloaded on - 16/01/2018 23:50:56 :::
8. cri apeal 650-14 (j).doc which underlies Section 106 of the Evidence Act can be applied in similar cases. In the case of State of Rajasthan Vs. Kashi Ram5, 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 innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain.
14. On going through the record, we are of the opinion that 5 (2006)12 SCC 254 : AIR 2007 SC 144 jfoanz vkacsjdj 11 of 12 ::: Uploaded on - 16/01/2018 ::: Downloaded on - 16/01/2018 23:50:56 :::
8. cri apeal 650-14 (j).doc there is sufficient evidence to prove beyond reasonable doubt that the appellant committed the murder of his wife Manjula by strangulating her with an iron chain. Thus, we find no merit in the appeal. The appeal is dismissed.
[ M.S. KARNIK, J ] [ ACTING CHIEF JUSTICE ]
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