Namdeo S/O Raoji Yerme vs The State Of Maharashtra Through ...
2002 Latest Caselaw 691 Bom

JUDGMENT

R.K. Batta, J.

1. The appellant was tried for the murder of his wife under Section 302 of the Indian Penal Code. The prosecution had examined five witnesses in support of the charge. The learned Additional Sessions Judge, Gadchiroli accepted the prosecution evidence and convicted the appellant under Section 302 of the Indian Penal Code vide judgment dated 10.4.1997. The appellant has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 500/-, in default, to suffer further R. I. for three months. The appellant challenges his conviction and sentence imposed on him.

2. Learned Advocate Mrs. Jaishree Yangal was appointed in the Legal Aid Scheme to argue the matter on behalf of the appellant and learned A. P. P. Shri Mirza on behalf of the State.

3. The prosecution case, in brief, is that the appellant had married deceased about five six months prior to the incident in question and on the date of the incident the appellant insisted that the deceased should come along with him to forest for cutting wood. Accordingly, they went to the forest. Subsequently, P.W. 2 Shobha and P.W. 3 Bhagyaratha had also gone in the jungle to collect wood and they saw the appellant and the deceased breaking wood. Both the said witnesses returned to the house, but neither the appellant nor deceased Sumitra returned from the forest. On the next day, the dead body of the deceased was found in the jungle. The appellant had absconded and was arrested on 10.2.1993. The incident in question had taken place on 11.12.1991.

4. Learned Advocate for the appellant urged before us that the witnesses examined by the prosecution are closely related and being interested witnesses their testimony should not be accepted. She further stated that the circumstantial evidence on record is not sufficient to record conviction and the chain in the circumstantial evidence is not complete so as to fix the responsibility on the appellant. She further stated that abscondence though a circumstance, yet the same may not be sufficient to complete the chain which the prosecution has failed to establish. She also submits that in circumstantial evidence motive plays an important role but the prosecution has not been able to establish any motive for the commission of the crime. She, therefore, contends that the appellant be acquitted.

5. On the other hand, learned A. P. P. has urged before us that the prosecution has produced clinching evidence to establish that the appellant and the deceased were last seen together going to the jungle for cutting wood and even in the jungle they were seen by two of the witnesses, but the appellant and deceased did not return back from the forest. The deceased was found dead on the next day and the appellant had absconded and he was arrested only after interval of about more than one year. He also submitted before us that the appellant has not offered any explanation whatsoever in relation to the evidence led by the prosecution that he had gone along with the deceased and they were seen in the jungle by two of the witnesses ad thereafter the deceased was found dead and the appellant absconded. He, therefore, contends that there is no case for interference.

6. The prosecution had examined three witnesses, P.W. 1 to P.W. 3, who are no doubt closely related to the deceased. However, there is no rule of law that the evidence of interested witnesses or related witnesses cannot be accepted and on the contrary the Apex Court has stated that the related witnesses are the best witnesses who have keen desire to see that the culprit is brought to book. Nevertheless, in case of interested witnesses, rule of caution is that the testimony of related witnesses requires close scrutiny.

7. P.W, 1 Kusan Kanhake is the brother-in-law of the appellant, has stated that deceased Sumitra who is his younger sister was married to the appellant and after five to six months of her marriage she was murdered. He has stated that the appellant had gone along with deceased Sumitra in the forest for collection of fuel at about 11 or 12 noon and his wife P.W. 2 along with Bhagyaratha (P.W. 3) had also gone for collection of fuel. The appellant did not return along with Sumitra in the evening. Enquiry was made in the nearby villagers but they did not find the deceased. On the next day, his nephew informed him that deceased Sumitra was lying dead in the jungle. No doubt, it is true that he has admitted in the cross-examination that there was no quarrel in between the appellant and the deceased. However, he denied the suggestion that the appellant had alone gone to the forest to collect the fuel. He also denied the suggestion that his wife P.W. 2 Shobha and deceased Sumitra had gone in the forest after taking meal.

8. P.W. 2 Shobha, who is the wife of P.W. 1 Kusan Kanhake, has stated that the accused insisted the deceased to come along with him for taking fuel from the forest. Accordingly, the appellant and the deceased went ahead for collecting fuel from jungle. After some time, she along with Bhagyarath (P.W. 3) went to the jungle to bring fuel. The appellant and his wife were seen breaking wood for fuel in the jungle. Thereafter Shobha (P.W. 2) and Bhagyaratha (P.W. 3) went beyond them in the forest. Bhagyaratha (P.W. 3) and Shobha (P.W. 2) returned home, but neither the appellant nor Sumitra returned from the forest. She was cross-examined, but nothing material could be elicited from her evidence. The third witness which is examined by the prosecution is P.W. 3 Bhagyaratha who has stated that the appellant and Sumitra had gone earlier to them in the forest for collecting fuel. Thereafter she along with Shobha (P.W. 2} had gone to the jungle for collecting fuel. The appellant and Sumitra were found preparing billets of woods near the nullah. Thereafter she along with P.W. 2 Shobha went ahead.

9. From the evidence of P.W. 1 to P.W. 3, it is clinchingly establish that both the appellant and the deceased had gone together to the jungle for collecting fuel. In fact, according to P.W. 2 Shobha, the appellant insisted that deceased Shobha would go along with him for collection of fuel. The dead body of deceased Sumitra was found in the jungle on the next day. Doctor (P.W. 5) who has conducted post-mortem on the dead body of the deceased, found two injuries on her person, namely, "(1) Abrasion on anterior aspect of neck at the region of thyroid cartilage. Size was 3 c.m. x 2 cm. and (2) Left eye swollen and abrasion above left eye outer aspect." On internal examination, he noticed, "Hematoma under scalp on left temporoparietal region. No fracture was found. Brain was congested. Hyoid bone broken on left side. Trachea ring 3rd and 4th broken. Both the lungs were congested. Heart was empty. Liver, spleen and kidney congested. Organs of generation normal."

According to him, the cause of death was asphyxia due to throttling. In the cross-examination, he stated that Trachea ring cannot be broken due to fall. Thus, the prosecution has been able to establish that this is a homicidal death on account of throttling.

10. It is pertinent to note that after the incident the appellant absconded and was arrested only on 10.2.1993. The appellant has not offered any explanation whatsoever, which under these circumstances, he was expected to furnish. The abscondence of the appellant and his not making any enquiries about his missing wife who was subsequently found dead provides additional link in the chain of circumstances for his involvement in the crime. The Apex Court in Birbal v. State of M.P. 2000 (10) SCC 2127, was dealing with the case of circumstantial evidence namely last seen together, in the said case, the appellant and the deceased, sister-in-law left together to go to the jungle and the appellant returned along. The appellant told the daughter of the deceased that her mother would return later. The appellant had taken a stand that he had never gone to the jungle with the deceased and he did not know what had happened to her. In these facts, it was held that the false information was an additional link in the chain of circumstances completing the chain.

11. In the case under consideration, the appellant has not furnished any explanation which, under the circumstances he was bound to offer since the deceased was his wife who was last seen with him as she had gone along with him in the jungle where also they were seen together and she was found dead on the next day in the jungle.

12. In our opinion, the prosecution has clinchingly established the circumstances which are not only complete in itself but are sufficient to sustain the conviction of the appellant. In so far as motive is concerned, though motive plays an important role in case of circumstantial evidence, yet absence of the same is not fatal where the evidence is of clinching nature. Moreover, it is well known that the motive is always locked in the heart of the accused and it is many a times difficult to elicit the motive. In our opinion, there is clinching evidence on record which unerringly points out that it is the appellant alone who has committed the murder of his wife and the circumstances are not consistent with his innocence.

13. For the aforesaid reasons, we do not find any merit in this appeal and the appeal is hereby rejected.