State Of Maharashtra vs Shivaji Anandrao Chede
2002 Latest Caselaw 615 Bom

JUDGMENT

B.H. Marlapalle, J.

1. This is an appeal moved by the State of Maharashtra against an order of acquittal passed by the learned Sessions Judge at Osmanabad, in Sessions Case No. 50 of 1983 on 14th August, 1984, by which the present respondent-original accused came to be acquitted from the offence punishable under Section 302 of the Indian Penal Code.

2. The respondent came to be enrolled as Advocate with the Bar Council of Maharashtra and Goa at Bombay. While he was a student of law, he was married to Kausalyabai from whom he begot a son. He set-up his practice at Bhoom and Osmanabad and claims to have flourished in the same. His wife Kausalya died and he married to Nirmala on 19th May, 1982. After his second marriage he shifted to Aurangabad for practising as an Advocate before this Bench in June, 1982. He claims to have shifted to New Delhi for his practice in March, 1983. When he married Nirmala, his son from his first wife Kausalya was about 10 years old. He came back to his native place Washi in Bhoom Taluka of Osmanbad district towards the end of April, 1983, while his second wife Nirmala was at her parental home at Bori in Jintoor Taluka of Parbhani District, Nirmala joined the accused at Washi on 9-5-1983. She was found dead in the early hours of 12th May, 1983 in the matrimonial home.

3. The prosecution claims that right from the date of her marriage with the accused, Nirmala was being ill-treated and the accused was insisting that she must undergo a family planning operation so that she would not bear any child. Nirmala was against this and she refused to relent. The accused went to the extent of calling her brother to Auranagabad and informed him that Nirmala would not be accepted in his (accused) home unless she underwent such an operation. The father of the accused as well as Nirmala's brother tried to persuade the accused but he was adamant. He published a public notice of divorce in a local newspaper on or about 8th August, 1982. Nirmala's plight of sufferings continued and while she was at Washi (matrimonial home) in the company of the accused she was allegedly beaten up and sustained some injuries on her knee in the night of 13th December, 1982. Next day she was taken to the primary health centre at Washi. The case was referred by the Medical Officer to the Police Sub-Inspector at Washi vide his letter dated 24-12-1982.

Nirmala conceived and while she was in her matrimonial home along with the accused she died a homicidal death on the night of 11th May, 1983 (leading to 12th May, 1983) and the cause of death given was strangulation and smothering, as per the post-mortem report.

4. Sangita, niece of the accused, knocked the door of Nirmala's room in the early hours of 12th May, 1983 and the accused opened the door and went outside the room. Sangita saw Nirmala dead and raised an alarm. Anandrao (PW5), father of the accused, came back to the house at about 7 a.m. of 12th May, 1983 and saw Nirmala dead. However, no complaint was given to the police immediately thereafter. At about 9 a.m. on the same day, Anandrao accompanied by the accused went to the Police Station at Washi and lodged a written report stating that his daughter-in-law died and he did not know the cause of death. On the basis of the said report Accidental Death No. 13 of 1983 under Section 174 of the Code of Criminal Procedure came to be registered. The dead-body of Nirmala was sent for post-mortem, after conducting the inquest panchanama as well as spot panchanama.

Dr. Ramesh Kulkarni (PW 1) conducted the post-mortem along with Dr. Deshpande and Dr. Kokane from 1.15 p.m. to 4.15 p.m. on 12-5-1983.

Shri Vishwanath Bhujangrao Toparpe (PW 17). Head Police constable at Washi Police Station had received the report (Exhibit 34) filed by P.W. 5 Anandrao Chede, father of the accused and registered A. D. No. 13 of 1983. He sent the accused for medical examination to the primary health centre. Dr. Laxmikant Narayan Deshpande, Medical Officer at the primary health Centre, Washi, examined the accused at about 6 p.m. on 12-5-1983 and issued an injury certificate. On the basis of post-mortem report Vishwanath Toparpe filed a complaint at Exhibit 64 which came to be registered as a first information report for an offence punishable under Section 302 of the Indian Penal Code and Crime No. 29 of 1983 was registered at 10 p.m. on 12-5-1983. He recorded the statements of Anandrao (PW 5), Gurunath (PW 6), Housabai (P. W. 7), Rajabai (PW 8), Sangita (PW 9), Bhaskar (PW 13) and others on the same day. The accused was then arrested in the wee hours of 13-5-1983.

The Investigation was then handed over to Shri More, Police Sub-Inspector, who recorded the statements of Rambhau (PW 10), Vishwanath (PW

11) and Mangala (PW 12). The Articles recovered by the Police were sent for chemical analysis.

The charge-sheet was submitted to the Court of Judicial Magistrate, First Class, Bhoom, on 26th July, 1983, under the signature of Shri More, Police Sub-Inspector who died while trial was pending. The case was then committed to the Sessions Court at Osmanabad for trial.

5. In all 17 witnesses came to be examined by the prosecution in support of its case that the accused was the author of the murder of Nirmala. Two witnesses are Medical Officers. Eight witnesses were either the near relations of the accused or his family friends. Two witnesses were panch witnesses. Shri Bhaskar (PW 13) is the brother of the deceased. Shri Mohan Krishna Kanabur (PW 16) is the Handwriting Expert. Habib Kazi (PW 14) was a panch witness, who turned hostile. Chandrakant (PW 15) is the photographer who had come at the spot of occurrence at the instance of the Investigating Officer (PW 17) and taken the Photographs of the deceased in the morning hours of 12th May, 1983. Anandrao (PW 5) is the father, Gurunath (PW 6) is the brother, Hausabai (PW 7) is the mother and Rajabai (PW 8) is the sister-in-law of the accused. Sangita (PW 9) as well as Mangala (PW 12) are the daughters of Gurunath (PW 6). Rambhau Karande (PW 10) and Vishwanath Gaikwad (PW 11) are family friends of the accused. All these witnesses i.e. PW Nos. 5 to 12 turned hostile during the course of trial and therefore, they were subjected to cross-examination by the Prosecutor.

6. The trial Court, on the basis of the evidence adduced before it, recorded the following findings :

 (a)     The deceased died a homicidal death and the cause of death was strangulation and smothering. 
 

 (b)    The deceased was ill-treated by the accused on account of her refusal to undergo a family planning operation. 
 

 (c)     The accused was present at Washi in his house on 11th/12th May, 1983. 
 

 (d)    The evidence of Dr. Deshpande (PW 2) showed that the accused had sustained injuries during the struggle at about the time of occurrence. 
 

 (e)     The statement of the accused under Section 313 of the Code of Criminal Procedure could not be treated as evidence and the conviction of the accused could not be based merely on such a statement. 
 

 (f)     The evidence did not show that the accused throttled the deceased to death and there was no evidence led by the prosecution to show that the accused was sleeping in the room where Nirmala was found dead in the night in question. 
 

 (g)     The circumstances established by the prosecution did not unerringly point to the guilt of the accused but same were highly suspicious and suspicion cannot take the place of proof.  
 

 The learned Sessions Judge, therefore, held that though Nirmala died a homicidal death, the prosecution failed to prove that the accused had caused the death of Nirmala with the requisite intention or knowledge. 

 

 7. In support of his legal proposition that the statement of accused under Section 313 of the Code of Criminal Procedure cannot be treated as evidence, the learned trial Judge has relied upon the following decisions. 
   

 i. State of Maharashtra v. Dr. R.B. Choudhary, . 
 

ii. Vijendrajit Ayodhya Prasad v. State of Bombay, 1953 Cri.L.J. 1097  
 

 iii. Makaradhwaja Bhoi and Anr. v. The State of Orissa, 1984 Cri.LJ. 373. 
 

 iv. Nona Gangaram v. State of Maharashtra, 1970 Mh.L.J. 172 = 71 Bom LR 375   
 

 The trial Court relied on the decision of the Apex Court in the case of Raghav Prapanna Tripathi and Ors. v. State of Uttar Pradesh, 1963 (1) Cri.L.J. 70, in support of the order of acquittal under challenge. 
 

8. Shri K.B. Choudhary, the learned Additional Public Prosecutor for the appellant-State, while assailing the acquittal order in appeal submitted that on one hand, the trial Court as a matter of fact accepted that the accused had suffered injuries as was noticed by the Medical Officer (PW 2) on 12-5-1983, these injuries could be during the struggle at the time of occurrence of death of Nirmala and on the other hand, failed to consider this circumstance while acquitting the accused. In addition, the trial Court did not seek the explanation of the accused on this vital circumstance while questioning him during the course of recording his statement under Section 313 of the Code of Criminal Procedure. Once it was accepted by the trial Court that the accused was present at his home in Washi on 11/12th May, 1983, the cause of death was exclusively within the knowledge of accused and therefore, the case squarely came within the ambit of Section 106 of the Evidence Act. Though the main witnesses turned hostile, the admissions given by some of them were considered by the trial Court in establishing the presence of the accused at Washi on 11th and 12th of May, 1983. The report lodged by Anandrao (PW 5) at Exhibit 34 has been duly proved in the testimony of Anandrao as well as the Investigation Officer (PW 17). The trial Court, on one hand accepted the statements made by the accused in his statement under Section 313 of the Code for establishing his presence in his house at Washi on 11th/12th May, 1983 but has discarded the remaining statements to establish that the deceased was with the accused on the fateful day in the same room where she was found dead in the early hours of the next morning. The statements made and recorded under Section 313 of the Code cannot be discarded as without value and the learned Sessions Judge fell in error in appreciating the decisions relied on to record a finding that the said statements cannot be treated as evidence.

9. In support of the challenge against the order of acquittal, the learned Additional Public Prosecutor has relied on the following decisions.

i. Bhagwan Singh v. State of Haryana, .

ii. State of U. P. v. Dr. R.P. Mittal, 1992 (2) Crimes 664 (SC).

iii. State of U. P. v. Lakhmi, .

iv. JT 1999 (5) SC 133.

v. Molai and Anr. v. State of M. P., .

vi. Joseph s/o Kooveli Poulo v. State of Kerala, .

10. The accused defended his case in person and in his lengthy and exhaustive arguments submitted that the oral, documentary as well as medical evidence brought before the Court clearly went to show that the prosecution failed to bring home the charge of offence of murder against him, beyond

reasonable doubt. In fact, there was no evidence worth considering in support of the prosecution case. At the threshold he challenged the constitutional validity of Section 162 of the Code of Criminal Procedure, 1973, and submitted that the Investigating Officer went on fabricating the statements purported to be of various witnesses and on the basis of these unsigned statements he was taken in custody and put on trial. His fundamental right as guaranteed by the Constitution was infringed on the basis of such statements. When it was pointed out to him that the provisions of Section 162 of the Code of Criminal Procedure, 1973, were in pari materia with the provisions of Section 162 of the Code of Criminal Procedure, 1898 as amended by Act No. 26 of 1955, it was submitted by the respondent-accused that no certified copy of the said amendment of 1955 was on record and as a student of law in 1971 to 1973 he had not come across provisions of Section 162 of Code of 1898 on the lines of amended Code of 1973. The respondent was not obviously willing to accept the fallacy in his arguments. He proceeded to vehemently contend before us that the oral evidence on the basis of such statements recorded by the Investigating Officer could not be relied on to put him on trial as all these statements were recorded under Section 162 of the Code of Criminal Procedure, 1973, which were unconstitutional and therefore, the oral evidence recorded during the course of trial has to be outrightly rejected. It would be note-worthy at this stage that no such arguments were advanced before the trial Court nor any witness was examined in support of his defence.

As per him, on the basis of the report lodged by Anandrao (PW 5), father of accused, A. D. No. 13 of 1983 was registered and therefore, there was no question of registering an offence at the behest of the Investigating Officer. When the respondent was sent for medical examination to the Primary Health Centre at Washi, on 12-5-1983 he was not arrested and therefore, the said medical report in respect of injuries suffered by him could not be taken into consideration in support of the prosecution case. The testimony of Bhaskar (P.W. 13) cannot be considered and it does not inspire confidence as it suffered from many contradictions. The Investigating Officer (PW 17) in his depositions before the trial Court has stated that he filed a report under instructions from the Police Sub-Inspector when in law he did not require any such instructions. The first information report as well as the statements of various persons recorded as claimed by the police are all concocted and it is a figment of imagination of the prosecution. P.W. 14 Toparpe did not produce the police diary before the trial Court and he falsely stated that the accused was in the police station at 9 a.m. on 12-5-1983 along with Anandrao (PW 5) when he lodged the report at Exhibit 30. The respondent also submitted that during his professional practice he conducted about 3500 criminal trials in various Courts including the Supreme Court and a false plea of unsound mind was unnecessarily considered by the trial Court. He also referred to the inquest panchanama (exhibit 29) and pointed out that the same did not state that the deceased had nails to cause injuries. The inquest panchanama was fabricated and was prepared after the first information report was filed by P.W. 17 Shri Toparpe. The entire trial was based on the documents recklessly prepared by the police. Even during the autopsy carried out by P.W. 1 Dr. Deshpande, it was not noted that the deceased had nails. Viscera was not preserved. Chemical Analyser's report was not placed on record and therefore,

the cause of death could not be concluded convincingly. While attacking the medical opinion, he submitted that merely because the Medical Officer possessed MBBS degree, he could not be called as an expert or a competent person to give medical opinion. No reasons have come out as to why three doctors were assigned to conduct the post-mortem. It was obvious that the prosecution was determined to book the accused under some or the other pretext. Further, the statements of expert witnesses or the doctors were not recorded under Section 162 of the Code of Criminal Procedure and copies of the same were not made over to the defence at any time as required under Section 173(5) of the Code. In addition, the report of Chemical Analyser was not made available to the defence and thus, it had caused prejudice to the accused. The statements made under Section 313 of the Code are not made on oath and therefore, it cannot be accepted as evidence against the accused and in support of the prosecution case. On all these counts, the appeal filed by the State is required to be dismissed urged the respondent/accused before us. He has also submitted written arguments in defence which have been forwarded vide letter dated 25-6-2002 by the Superintendent, Central Prison, Aurangabad. We have considered the same while deciding this appeal.

11. Dr. Ramesh Vinayak Kulkarni (PW 1) had examined Nirmala for the injuries caused on her knee on 14-12-1982 and stated in his depositions that Nirmala was examined by him on 14-12-1982 regarding the injuries on her body and was referred to the General Hospital at Osmanabad. At the same time, letter dated 14-12-1982 (Exhibit 24) was addressed to the Police Sub-Inspector, Washi, informing him that Nirmala was brought to the primary health centre at Washi as an injury case. The following injuries were found by the doctor on the person of Nirmala :

1. Contused lacerated wound on left leg below lateral malleous of the size of 5 c.m. x 1 c.m. x 1 c.m. Clinically I found that there was fracture of the underline bone.

2. Incised wound on nose horizontal size of 3.5 c.m. x 3 m.m. x 5 m.m.

12. It is in the evidence of this Medical Officer (PW 1) that on 12-5-1983 the Police Station at Washi had sent the dead body of Nirmala for post-mortem examination and the same was conducted by himself and Dr. Kokane as well as Dr. Deshpande, under requisition at Exhibit 20. The post-mortem was performed on the same day from 1.15 to 4.15 p.m. The dead body was identified by Anandrao Chede (PW 5). The following external injuries were noticed :

1. Two contusions on neck left side both parallel to each other running from thyroid cartilage to the sternomastoid muscle left side oblique in direction measures 7 cm x 1 cm and the lower one is 6 cm x 1 cm. Colour was red. On cutting subcutaneous tissue found red.

2. Subscutaneous petecheat haemorrhages over left side of the neck on left cheek, left shoulder. On dissection subscutanoues haemorrhagic spots are seen.

3. A small punctuated abrasion on upper lips, each one measured 2 m.m. x 2 m.m. Two small abrasions over lower lip each one measured 2 m.m. x 2 m.m.

4. Whole of the neck, anterior part of the chest, left part of the face and some of the right cheeks were congested.

5. Subcutaneous haemorrhagic spots seen on cutting at above congested places.

So far as the internal injuries were concerned the doctor stated that brain meninges were congested, the brain was hyperaemic and there was subplural haemorrhage in thorax. The larynx, trachea and bronchi contained lot of bloody froth. Both the lungs were congested. On cutting the lungs dark coloured and froth was seen. Right side of the heart contained dark blood and that the left side of the heart was empty. The large vessels contained dark blood and that the bucle cavity contained red froth. It was also found that the pharynx was congested and the stomach contained semi-digested food measuring one ounce. Mucose was congested and all abdominal organs were congested. It was further found that bladder was empty and that uterus was enlarged and the deceased was pregnant of 20 weeks. On opening the uterus it was found that the foetus was of 5 months with male sex.

In the external examination the doctor noticed that the eyes were closed, that the conjunctiva were red and the tongue was clinched in between the teeth and was congested. Bloody froth was coming out of nostrils and mouth. It was found that nails of the fingers of the hand were blue and palms were red. The face was markedly congested and on pressure over chest froth was increasing. It was also noticed that rigor mortis was present in upper and lower extremity. The doctor opined that the cause of death of the deceased was "asphyxia caused by smothering". He accordingly issued the post-mortem report at Exhibit 21 which was also signed by other two doctors. All the external and internal injuries were ante-mortem. Regarding the contusions found on the neck, the doctor stated that they could be caused if the neck was pressed by hands. External injury Nos. 2, 4 and 5 were the result of ashpyxia and were connected to external injury Nos. 1 and 3. External injury Nos. 1 to 5 were sufficient in the ordinary course of nature of cause death. External injuries No. 1 to 5 were not self-inflicted injuries. External injury No. 3 could be caused by pressure on the lips.

13. During the course of cross-examination, the testimony of Dr. Kulkarni (PW 1) regarding post-mortem report as well as the treatment given to the deceased on 14-12-1982 remained unshaken. He denied that all the external injuries noticed on the dead-body were on the left side. He also denied that in all cases of death by poisoning the cause of death is asphyxia caused by respiratory failure. He also stated that two contusions on the left-side of the neck of the deceased could not have been caused by fall on the ground from the bed and the contusions were caused by hard and blunt object only. In the cross-examination he stated that in his opinion the external injury No. 1 could have caused asphyxia because it was in continuation of external injury No. 4. The froth that was oozing out of the mouth and nostrils was not due to the decomposition of the dead body.

14. Thus, the evidence of P.W. 1 Dr. Kulkarni, Medical Officer, clearly established that on 14-12-1982 Nirmala had gone to him for treatment of injuries suffered by her on her body. She died a homicidal death in the night of 11th May, 1983, while she was in her matrimonial home.

15. Anandrao Chede (PW 5), Gurunath (PW 6), Housabai (PW 7), Rajabai (PW 8), Sangita (PW 9) and Mangala (PW 12) being the family members of the accused turned hostile. Anandrao in his depositions came out with a story that the accused was admitted in the hospital at Solpaur on 11-5-1983 and that he ran away from the said hospital on the next day. This version was also reiterated by P.W. 6 Gurunath. However, he (PW 6), in his examination-in-chief, admitted that the accused had come to Washi about 8 or 10 days before the arrival of Nirmala and the accused and Nirmala slept in one common room for about 8 days. In support of the admission of the accused in the hospital at Solapur on or about 11th May, 1983, no evidence was brought before the trial Court and this story was, therefore, rightly disbelieved in the sessions trial. We need not consider the evidence of all other witnesses who turned hostile.

16. Bhaskar (PW 13), the brother of the deceased and a permanent resident of village Bori, stated before the trial Court that after her marriage, Nirmala was staying with the accused at Aurangabad along with her mother-in-law. After about one month she was reached to his house. She had told him that she was ill-treated by the accused and was asked to undergo family planning operation because the accused had already one son from his first wife. Within a period of 4/5 days the accused went to Bori along with Shri Mete, Advocate and the witness refused to send Nirmala as the accused was ill-treating her. However, Nirmala was sent with the accused on the assurance given by Shri Mete that she would not be ill-treated by the accused. However, again within 4/5 days Nirmala came back to Bori and the accused sent one telegram to Bhaskar informing him to bring Nirmala to his house. Same request was followed through a messenger by name Narayan. However, the witness did not send Nirmala to the house of the accused. Bhaskar and Deorao then met the accused at Aurangabad and Deorao told the accused that he was ill-treating Nirmala. On this the accused told Bhaskar that he should send Nirmala to his house only if she agreed to undergo family planning operation. If she did not agree for such an operation she was free to take divorce. The witness told the accused that as per the custom no divorce could be given. Bhaskar and Deorao returned home and Nirmala was not sent to the house of the accused. The witness came across a public notice given by the accused divorcing Nirmala and the said notice was published on 8-8-1982 in Daily "Marathwada". On that day, Anandrao was at Bori and the public notice was shown to him. The father of the accused started weeping on reading the notice and stated that there was already a stigma on his face as the people were saying that the accused had killed his wife Kausalya. It was only on the assurance of Anandrao and his wife that Nirmala would not be harmed, she was sent with them. She was happy for a about a week or two. Thereafter ill-treatment restarted. Bhaskar, therefore, went to bring Nirmala but she was not sent. The accused threatened Bhaskar that he would cut his legs if he entered his house. The accused did not allow Bhaskar to meet Nirmala.

He further stated, on 11-5-1983, he was present at Washi and the accused had told him that he wanted to go to Gandgapur and Bhaskar should go to Bori and come back. Accordingly, Bhaskar went to Bori and when he returned to Washi on 12-5-1983 at about 11 a.m., he found many persons gathered at the house of the accused. He suspected some foul play and when he entered the

house he saw the dead-body of his sister Nirmala. He found that her tongue was protruding out and there were injuries on the neck and face of Nirmala. He also noticed froth oozing out of her mouth and the accused was standing at the door of his house.

In the cross-examination nothing substantial so as to falsify the statements made by Bhaskar in his examination-in-chief, was brought on record except his presence at Washi on 11-5-1983 which was not disclosed in his statement to the police recorded under Section 161(3) of the Code of Criminal Procedure. For this also, he gave an explanation stating that the same was not asked to him. He reiterated that he reached Bori at about 5 p.m. on 11-5-1983 and the bus fare for going to Washi from Bori was Rs. 26/- at the relevant time. He denied the suggestion that he came to Washi on 12-5-1983 only on receipt of the information about the death of Nirmala.

17. Chandrakant Dnyanoba Narkar (PW 15) was the photographer. He stated that he was having his studio at Washi for the last four years. He had an experience of photography for the last 10 to 12 years. He received a message from Head Constable Toparpe on 12-5-1983 between 10 to 11 a.m. to take photographs and therefore, he went to the house of the accused along with the said Head Constable. He took photographs of the dead-body which was lying in the hall. He identified the negatives of the said photographs (exhibit 49). He also stated that he developed and printed the photographs shown to him in the Court at Exhibits 50A to 50G. He also identified the dead-body as that of the wife of the accused on reaching the place of occurrence.

18. Vishwanath Bhujangrao Toparpe (PW 17), was the Head Constable at Washi Police Station at the relevant time. He confirmed the report at Exhibit 34 lodged by Anandrao Chede (PW 5) regarding the death of Nirmala and also signature of Anandrao. He registered A.D. No. 13 of 1983 on the basis of the said report and immediately went to the spot of occurrence. He called Chandrakant (PW 15) to take photographs of the dead-body and its surrounding. Accordingly, Chandrakant Narkar took the photographs. He drew inquest report at Exhibit 29 in presence of Shankar (PW 3) and others. He also made the panchanama of the spot of occurrence at Exhibit 30 in presence of the Panchas and thereafter sent the dead-body to the primary health centre.

Head Constable Waghmare accompanied the dead-body. This witness also sent accused Shivaji Chede to the primary health centre for his medical examination along with the requisition at Exhibit 26. He received the postmortem report from the Medical Officer on 12-5-1983 late in the evening and the post-mortem notes were shown to Shri Suryawanshi, Circle Police Inspector, Kallam, who instructed Toparpe to register an offence. Accordingly, first information report was filed by the said witness (Exhibit 64) and the offence was registered under Section 302 of the Indian Penal Code (Crime No. 29 of 1983) at 10 p.m. on 12-5-1983. The accused was arrested on 13-5-1983 early in the morning. The investigation was handed over to the Police Sub-Inspector Shri More. The statements made by P.W. 5 Anandrao, P.W. 6 Gurunath, P.W. 7 Housabai, P.W. 8 Rajabai and P.W. 9 Sangita and recorded during the course of investigation were identified by this witness during his examination-in-chief. He also stated that he did not record the statements of P.W. Nos. 10 to 12. He further

stated that Police Sub-Inspector More died during the pendency of trial. In his cross-examination no major contradictions were brought out. He reiterated that P.W. 5 Anandrao Chede was accompanied by the accused to the police station at about 9 a.m. on 12-5-1983 and Anandrao lodged the report (Exhibit 34) under his signature and the contents therein were correct, as reported to by Anandrao Chede.

19. As noticed by the trial Court, the case of the prosecution is entirely based on the circumstantial evidence. Once it is accepted by the trial Court that Nirmala died a homicidal death and the accused was present at Washi on 11/12-5-1983 and he sustained nail injuries at the hands of the deceased, we are required to consider the further findings of the trial Court holding that the prosecution could not establish the involvement of the accused in the crime and whether they could be sustained.

20. Before we proceed further, it would be necessary to reproduce at this stage some of the contents of the report lodged by Anandrao (Exh. 34) and the first information report filed by Head Constable Toparpe at Exhibit 64.

(A) The relevant contents of exhibit 34 (report lodged by P.W. 5 Anandrao Chede) are as follows :--

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21. P.W. 2 Dr. Laxmikant Deshpande stated before the trial Court that on 12-5-1983 police station at Washi had sent the accused to the primary health centre for medical examination along with the requisition (Exhibit 26). He had examined the accused and following injuries were noticed :

"1. Abrasion on chest left side below the nipple, measuring 2 cm x 4 cm.

2. Abrasion on left wrist measuring 1 cm x 1cm.

3. Abrasion on back right side below the scapula measuring 3 cm x 2 cm."

The age of all the above injuries was below 24 hours. All the 3 injuries were simple in nature. The abrasion on the back was crescent in shape suggesting that it was caused by means of human nails. He issued the medical certificate at Exhibit 27 and had examined the accused at about 6 p.m. on 12-5-1983. In his opinion, the injuries found on the person of the accused were caused during the struggle by means of human nails. In his cross-examination he denied that all the injuries found on the person of accused could be caused by scratching when there is itching on the body.

22. In the case of Harisingh M. Vasava v. State of Gujarat, 2002 AIR SCW 994 while dealing with the powers of High Court in an appeal against the order of acquittal, the Supreme Court stated thus :--

"The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The paramount consideration of the Court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial Court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial Court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial Court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding."

In the case of Harbans Singh and Anr. v. State of Punjab, , the Apex Court stated :

"What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittals the Court of Appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the Appellate Court comes to the conclusion that the view taken by the lower Court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a Court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established."

Again in the case of Bhagwan Singh and Ors. v. State of M. P. , while dealing with the powers of High Court in an appeal against an order of acquittal, the Supreme Court observed, "The settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused, is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, the view which is favourable to the accused should be adopted. Such is not jurisdiction limitation on the appellate Court but Judge-made guidelines for

circumspection. The paramount consideration of the Court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent."

23. In the case of circumstantial evidence we are required to see whether on the basis of the totality of the circumstances which are held to have been proved against the accused, it can be said that the case is established against him i.e. the facts established are inconsistent with the innocence of the accused and incapable of explanation on any hypothesis other than that of his guilt.

In the case of State of U. P. v. Dr. Ravi [1992 (2) Crimes 664], the Supreme Court laid down the following essential ingredients to prove the guilt of an accused person by circumstantial evidence.

 (i)      Circumstances from which the conclusions are drawn should be fully proved. 
 

 (ii)     Circumstances should be conclusive in nature,  
 

 (iii)   All the facts so established should be consistent only with the
hypothesis of guilt and inconsistent with the innocence,  
 

 (iv)   The circumstances should, with certainty, exclude the possibility of
guilt of any person other than the accused.  
 

 In the case of Joseph v. State of Kerala, , a Three-Judge Bench of the Apex Court inter alia, stated thus :-- 

"It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinised to see that the incriminating circumstances as such to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in this case would be to find out whether the crime was committed by the appellant and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the appellant."

24. In the case at hand, the learned Sessions Judge, in support of the findings that the presence of the accused at Washi was established on 11/12-5-1983 has relied on the testimony of Bhaskar (PW 13) and Toparpe (PW 17). Toparpe (PW 17) had stated that when Anandrao (PW 5) came to lodge the report at 9 am on 12-5-1983 at the police station he was accompanied by the accused. Similarly, PW 13 Bhaskar in his deposition stated before the trial Court that he was at Washi on 10-5-1983 and the accused had told him that he (accused) wanted to go to Gandgapur on the next date. Therefore, Bhaskar left Washi on 11-5-1983 and went to his native place Bori in Parbhani district so as to return on 12-5-1983. However, when he reached Washi at about 11 a.m. on 12-5-1983 he saw the dead body of his sister and the accused was standing at the door of his house at that time. In support of the statements made by these witnesses, the learned Sessions Judge has relied upon the statements made by the

accused under Section 313 of the Code of Criminal Procedure. It would be appropriate to reproduce Question Nos. 26 and 28 with the respective replies given by the accused thereto:

"Q. 26 It is in evidence that P.W. 13 Bhaskar had gone to Washi on 12-5-1983 at about 11 a.m. and found Nirmala lying dead in the drawing hall and you standing at the threshold of the house. What have you to say about it?

A. It is not true. However, I was present outside the house.

Q. 28. It is in evidence that on 12-5-1983 P.W. 5 Anandrao and you went in the Police Station at Washi and P.W. 5 Anandrao filed report Ex. 34 before P.W. 17 Head Constable Toparpe who registered accidental death at A. D. No. 13/1983 on its basis. What have you to say about it?

A. It is true. However, I do not know whether A.D. No. 13/1983 was registered.

25. It would be pertinent to reproduce the observations of the trial Court in paras 32 and 33 regarding the injuries noticed on the body of the accused by P.W. 2 Dr. Deshpande and the findings recorded by the learned trial Judge regarding the said injuries :

"32. P.W. 2 Dr. Deshpande had examined the accused on 12-5-1983 at 6 p.m. He deposed that on examination of the accused he found one abrasion on the left side below the nipple measuring 2 x 4 c.m. one abrasion on the left wrist measuring 1 c.m. x 1 c.m. and one abrasion below the right side scapula measuring 3 x 2 c.m. He said that the age of the injuries found by him was within 24 hours. He also deposed that the abrasion on the back was crescent shaped suggesting that it was caused by human nails. He then deposed that the injuries found by him could have been caused during by the struggle. He proved the certificate Ex. 27, the contents of which corroborate his say. In his cross-examination he emphatically asserted that injuries 1 and 2 could not have been caused by mere scratching/This evidence of Dr. Deshpande clearly tallies with the time of occurrence and shows that the accused had sustained injuries during the struggle at about the time of occurrence. 33. The total evidence discussed above, establishes beyond doubt that the deceased met homicidal death; that the accused wanted the deceased to undergo family planning operation and to give divorce; that the accused was illtreating the deceased; that the accused and the deceased were present at Washi on 11-5-1983 and 12-5-1983 and that the accused was present at his house in the morning of 12-5-1983 and that there were injuries on the person of the accused, which could have been caused during the struggle at about the time of the occurrence i.e. the circumstances listed at serial No. 1, part of serial No. 2, 3 part of serial No. 4, 5 and 6."

From the above observations it is clear that the learned Judge accepted the presence of the accused in his house at Washi on 11th and 12th May, 1983 and also in the morning of 12th May, 1983. He also noted that there were injuries on

the person of the accused which could have been caused during the struggle at about the time of occurrence i.e. the circumstances listed at serial No. 1, part of serial Nos. 2 and 3, part of serial Nos. 4, 5 and 6. In centra-distinction to these findings, the learned Sessions Judge proceeded to hold that there was no evidence to show that the accused was in the company of the deceased during the night of 11th May, 1983 leading to 12th May, 1983 in the drawing hall of his house, though this was admitted in no uncertain words by the accused himself, while giving reply to Questions No. 21 and 22. The learned Sessions Judge discarded these replies solely on the ground that they could not be read as evidence. On one hand, the replies given to Questions No. 26 and 28 were accepted as corroborating evidence but on the other hand, the replies given to Questions No. 21 and 22 were discarded outrightly on the ground that such statements recorded under Section 313 of the Code of Criminal Procedure did not amount to evidence.

26. The important point for consideration before us is, therefore, whether the statement recorded under Section 313 of the Code can be rejected outrightly or whether the same would be taken into consideration. The legal conclusions drawn by the learned Sessions Judge in this regard, in our considered opinion, are grossly erroneous. In the case of Vijendrajit Ayodhya Prasad Goel v. State of Bombay (supra) which has been relied upon by the trial Court, it was observed by the Supreme Court in para 13 as under:--

"As the appellant admitted that he was in charge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under section 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of accused's statement and excluded exculpatory statement does not seem to be correct. The statement under Section 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was incharge of the godown, he denied that the rectified spirit was found in the godown. He alleged that that rectified spirit was found outside it."

In the case of Nana Gangaram Dhore (supra), a Division Bench of this Court held that the Court can act only on the prosecution evidence or the contention of accused or both and it cannot act upon the statement under Section 342 of the Code of Criminal Procedure 1898, which is partly inculpatory and partly exculpatory. There was no evidence brought before the Court by the prosecution to show that the accused had caused any injury to the deceased with an axe and the accused in his statement made under Section 342 of the Code had stated that he had snatched the axe from the hand of a prosecution witness to save the life of his brother a co-accused, who was being attacked with a knife by the deceased and that he had delivered the fatal strokes with the axe in his right of private defence of person. It was under these circumstances this Court held that the finding of use of the axe by accused could not be based upon his statement under Section 342 of the Code which was not in the nature of a confession and therefore, the conviction of the accused which was based upon such a statement was unsustainable.

The decision of the Supreme Court in the State of Maharashtra v. Dr. D.R. Choudhary, (supra) as relied on by the trial Court does not lay down a legal proposition that the statement recorded under Section 342 of the Code of 1898 (Section 313 of the Code of 1973) is required to be rejected outrightly. The Apex Court stated:

"No doubt, under the Code of Criminal Procedure statement of an accused may be taken into consideration in an inquiry or trial but it is not strictly evidence in the case."

Similarly, in Makaradhwaja Bhoi's case (supra) it was held that merely on the basis of statement under Section 313 of the Code it is difficult to secure conviction of the accused and it was for the prosecution to prove to hilt by reliable and dependable evidence that the accused was responsible for the death of deceased.

27. The evidentiary value to be attributed to the statement made under Section 313 of the Code has been more elaborately dealt with by the Apex Court in the following cases.

In the case of Narayan Singh v. State of Punjab, a Three Judge Bench of the Apex Court stated thus :--

"Under Section 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation - if any, of the incident which forms the subject-matter of the charge and his defence. By Sub-section (3), the answers given by the accused given by the accused may "be taken into consideration" at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the Court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstances appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety."

Following the law laid down in Narayan Singh's case (supra) the Apex Court in State of Maharashtra v. Sukhdeo Singh further dealt with the question whether a statement recorded under Section 313 of the Code can constitute the sole basis for conviction and recorded a finding that the answers given by the accused in response to his examination under Section 313 of the Code of 1973 can be taken into consideration in such an inquiry or trial though such a statement strictly is not evidence and observed in paragraph 52 thus :--

"Even on the first principle we see no reason why the Court could not act on the admission or confession made by the accused in the course of the trial or in his statement recorded under Section 313 of the Code......."

It is thus well established in law that admission or confession of accused in the statement under Section 313 of the Code recorded in the course of trial can be acted upon and the Court can rely on these confessions to proceed to convict him. This proposition has been more elaborately set-out by a Three-Judge Bench of the Supreme Court in the case of State of U. P. v. Lakhmi, . It would be apt to reproduce the relevant observations in para 7 :--

"7. As a legal proposition we cannot agree with the High Court that statement of an accused recorded under Section 313 of the Code does not deserve any value of utility if it contains inculpatory admissions. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the Court to be apprised of what the indicated persons has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases accused would offer some explanations to incriminating circumstances. In very rare instances accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognised defences. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstances appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy.

8. Sub-section (4) of Section 313 of the Code contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the Court. The words "may be taken into consideration in such enquiry or trial" in Sub-section (4) would amount to a legislative guideline for the Court to give due weight to such answers, though it does not that such answers could be made the sole basis of any finding."

In the case of Mandhari v. State of Chattisgarh, , the appellant was convicted and sentenced to imprisonment for life under Section 302 of the Indian Penal Code and same was confirmed by the High Court. The prosecution case was entirely based on the circumstantial evidence and the Supreme Court relied on the admissions made by the accused under Section 313 of the Code of Criminal Procedure regarding his presence in the house and rushing to find that his wife was hanging by neck. His defence that his wife committed suicide was found to be false and it was not corroborated by the medical evidence. While confirming the findings of both the Courts below in respect of conviction and sentence the Apex Court in para 4 observed thus :--

"The most culpable circumstance found to have been proved and accepted by the Courts below against the accused is that he had himself made a false report of commission of suicide by his wife and admitted in his examination under Section 313, Criminal Procedure Code that he was present in the house at the time of incident."

28. The language of Section 313(4) of the Code of 1973 appears to have escaped the attention of the trial Court. The said sub-section reads thus:--

"(4) The answers given by the accused may be taken into consideration in any such inquiry or trial put in his evidence for or against him in any other inquiry into or trial for, any other offence which such answers may tend to show he has committed."

The first part of this provision namely; "the answers given by the accused may be taken into consideration in such inquiry or trial" has to be read independent of the remaining eventualities. This interpretation is buttressed by the decisions of the Supreme Court in the case (1) Narayan Singh (supra), (2) State of Maharashtra v. Sukhdev Singh (supra) and (3) State of U. P. v. Lakhmi (supra). On the basis of this settled position in law regarding admissions/confessions made by the accused in his statement under Section 313 of the Code, we hold that the learned Sessions Judge fell in gross error in recording a finding that the presence of the accused in the night of 11-5-1983 in the drawing hall in the company of the deceased was not proved.

29. We now come to the circumstance of the injuries sustained by the accused and as were noticed by P.W. 2 Dr. Deshpande. Though the learned Sessions Judge asked as many as fifty questions to the accused for recording his statement under Section 313 of the Code, the accused was not put to this circumstance. This is a major flaw committed by the trial Court while recording the statement under Section 313 of the Code. It was imperative that the accused was put to this circumstance so as to seek his explanation. When the accused pleaded his case as party in person before us we put to him this circumstance and called upon him to explain. In reply the accused submitted before us that the said medical report regarding the injuries noticed on his person cannot be considered as his medical examination was carried out before he was arrested by P.W. 17 Toparpe or more specifically, medical examination was carried out when he was not under arrest. This reply impliedly accepted the fact that the accused was medically examined by Dr. Deshpande (PW 2) on 12-5-1983 and the injuries stated by him in the certificate as well as in his deposition were noticed on the person of the accused. It was necessary for the accused to explain as to how these injuries were sustained by him. He further proceeded to argue that in the inquest panchanama or in the post-mortem report there was nothing to show that the deceased had nails. We have noted from the deposition of Dr. Kulkarni (PW 1) that the nails of deceased had turned blue and the said statement reads thus:

"I also found that nails of the fingers of the hand were blue and the palms were red."

30. We, therefore, hold that on the basis of the evidence as was adduced before the trial Court the following circumstances were duly established :

 (a)     The deceased was ill-treated by the accused on account of her refusal to undergo a family planning operation. 
 

 (b)     The accused was present at Washi on 11th/12th May, 1983. 
 

 (c)    The deceased died a homicidal death and the cause of death was strangulation and smothering. 

 

 (d)    The accused was present in the drawing hall throughout the night of 11th May, 1983 (leading to the morning of 12th May, 1983). The drawing hall was bolted from inside and Nirmala was found dead in the said hall in the morning of 12th May, 1983. 
 

 (e)     The accused sustained injuries on his person during the said night and those injuries were nail injuries. 
 

 (f)     The injuries have been caused by the deceased while she was resisting smothering that was administered by the accused to her. 
 

 (g) The possibility of any other person causing the death of Nirmala by throttling and smothering is totally ruled out and the guilt squarely falls on the accused who was last seen in her company.   
 

31. The learned Sessions Judge discarded the admissions given by the accused in reply to question No. 50 by simply holding that these admissions could not be treated as evidence. We shall deal with the value of these admissions a little latter. Assuming that these admissions were not made by the accused, can the order of acquittal be sustained on the face of the circumstances which we have noted to have been established on the basis of the evidence in the above para. If the reply to this question is in the affirmative, we are afraid, in every sessions trial involving homicidal death of a married woman that has occurred in her matrimonial home, the accused would be acquitted. However, the law does not permit such a situation. It appears that the trial Court was unmindful of the provisions of Section 106 of the Evidence Act. Once the chain of circumstances leading to the death of Nirmala was complete, it was incumbent on the accused to explain the reason as to how Nirmala met with homicidal death and more so when he himself had received nail injuries and the cause of death as given by the Medical Officer was throttling and smothering. The accused being well-versed with the criminal jurisprudence volunteered to make admissions in reply to Question No. 50. Even if these admissions were not made, the noose of provisions of Section 106 of the Evidence Act and the circumstantial evidence was around the neck of the accused. It is well settled principle in law that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue, then same offers as additional link in the chain of circumstances to complete the chain Swapan Patra and Ors. v. State of W. B., 1999 (9) SCC 245. A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. A false answer can only be counted as providing "a missing link" for completing the chain (State of Mah. v. Suresh, ). Once the chain of circumstances was complete in the case at hand and every circumstance pointed out finally a finger of guilt towards the accused he could not escape out of clutches of law. His stance to explain reasons for his sustaining nail injuries as certified by Dr. Deshpande (PW 2) indicated that he was the author of Nirmala's death and no-one else was responsible for the said crime. The trial Court ought to have considered the totality of the circumstances and the responsibility of accused to discharge the burden as required under Section 106 of the Evidence Act. There is no reason why the trial Court could not consider the admissions made by the accused as his explanation under Section 106 of the Evidence Act.

32. Coming to the admissions made by the accused in reply to question No. 50 they are required to be appreciated on the backdrop of the enunciations as cited above, inasmuch as, the admissions could be relied for convicting the person making such admissions if he is an accused and that the accused making these admissions was a member of the Bar with good standing. The admissions are stated in measured words and there is an attempt to make out a case of mental, insanity which can be gathered from the following statement in reply to question No. 50 :

Q. 50. Do you want to say anything else?

A. I married Nirmala on 19th May, 1982. After marriage I shifted to Aurangabad practising as an advocate. I started practicing at Aurangabad in June, 1982. I received one anonymous letter in which there were some allegations about the character of my wife Nirmala. Later on, I asked Nirmala about it. I asked Nirmala whether there were enemies of her father's house who would write letter alleging bad character of her. Nirmala was related to me before marriage. She was studied upto 10th standard. I was shocked after receiving the abovesaid letter. But I did not believe the contents thereof. Later on, I went to Washi along with Nirmala. I loved Nirmala like anything. Nirmala also loved me. However, element of suspicion was there. I went to Washi in October, 1982. I and Nirmala stayed at Washi. On or about 15th March 1983 I went to Delhi for practising there. Before going to Delhi I had sent Nirmala to her father's place. On 1-4-1983 I received a letter from Nirmala informing me that she was sick and that I should go to Bori. I left Delhi on 26th April 83. I went to Bori. Nirmala was not present at Bori. I asked the brother of Nirmala as to where Nirmala was. The brother of Nirmala told me that Nirmala was at Tadkales Dist. Parbhani. On the same day I went to Tadkales and met Nirmala. I asked Nirmala why she had gone to Tadkales. She could not give satisfactory reply. I asked Nirmala to accompany me to Washi. Nirmala however told me that as she was ill she will come later on. Thereafter I went to Washi. I then went to Gandgapur along with my sister for offering prayers to Lord Datta. I left Gandgapur on 4th May, 1983. While on my way to Washi I realised that some culprits in the bus were creating trouble. These culprits threatened me saying that they would kill me at Akkalkot. I was then admitted in the Wadia Hospital. Some 5 or 6 persons tried to threaten me in the hospital also. I would not understand the motive of these persons for threatening me. I realised that my life was in danger. On the night between 8th May, 1983 I could not sleep in my room in the hospital because 5-6 persons were outside my room and were giving threats. I could not leave the hospital during the night because my room was on the 3rd floor and the doors of the hospital were closed. In the morning at about 5 a.m. the doors of the hospital were opened and then I ran away from the hospital to get rid off the culprits. I went to one house and took

shelter. I was completely afraid. I went to bus stand at about 7.30 a.m. I boarded Pandharpur-Nagpur bus for going to Osmanabad. In the same bus also there were some persons who threatened me. These persons were staring at me. I got down at Osmanabad and boarded another bus. I then went to Saramkundi Fata. I boarded another bus going to Washi. The person sitting behind me threatened me saying that I should be finished on that day only. I went to Washi. I told this fact to my friends I told then that my life was in danger. On 9th May, 1983 my father brought Nirmala to Washi. As there was continuous fear in my mind I did not leave my house, I requested my father to secure police protection. My father dismissed my suggestion saying that I had no brain. I became nervous. I did not sleep on the night on 9th and 10th. On 11th my father suggested that I should go to Sasoon hospital at Poona for taking rest. I thought that the same persons would chase me. I felt that it would be unsafe to go to Poona. On the night in between 11-5-1983 and 12-5-1983 I felt insecured, I also felt as my father was not paying heed to my suggestions I should commit minor offence and go in jail where I would be safe. I thought over the question how to go in jail. I told my wife that my life was in danger but my wife did not pay any heed to my say. It struck me that my throttling my wife and immediately giving respiration by mouth to mouth 1 could go in Jail. I then throttled my wife by right hand. She became unconscious. Her jaw was locked. I shut her nose as a result of which the mouth was opened. I immediately started mouth to mouth respiration. The pulse of my wife became steady. I was sitting near my wife for about half an hour. I took one and covered my wife with it. I was taking that my wife was alive. In the morning I went out and told my sister that my wife was dead. I then went to the police station and asked the police to give me protection. I went back to my house and sat infront of my house. I was thinking that my wife was alive. At about 6 p.m. on that day I was in the dispensary at Washi, The doctor did not examine my body. The doctor did not take my signature on the medicolegal register. I met CPI Suryawanshi, I asked CPI to give me protection. He was reluctant. I was pressing the CPI to arrest me under any section. He did not do it. After repeated requests he arrested me in the late night. On 13-5-1983 at 8 a.m. the PSI called me there was postmortem report on the table. I was shocked. Even at that time I was thinking that my wife was alive. I least bothered under what section I was arrested because I wanted to get protection by any means. Later on, my father showed me a true copy of FIR. In the said copy there was reference to the postmortem report of my wife. I was shocked. My mental condition became bad after reading the F. I. R. I sent 2-3 letters to my wife thinking that my wife was alive. I was telling the visitors that my wife be brought before the Court. I was negligent in

putting bedsheet over the body of my wife. I am pretty sure that my wife was alive when I went asleep. I loved my wife like anything. I have nothing more to say."

We noticed from one of the photographs brought on record that the upper lip of the deceased was broken. It is, therefore, evident that the smothering the accused resorted to was not only continuous and was resisted by the deceased with equal force for her survival. In that process, the injuries of her nails were caused on the person of the accused. The admissions so made by the accused could not be discarded and they ought to be taken into consideration for convicting the accused. We have no doubt in our mind that this is an additional ground to convict the accused apart from our finding that even in the absence of such an admission the accused was the author of Nirmala's murder in view of the burden cast on him to provide explanation under Section 106 of the Evident Act. The inculpatory statement as made was not in reply to a question and the accused volunteered to set such an elaborate admission which can be safely relied upon to convict him in view of the decision in the case of State of Maharashtra v. Sukhdeo Singh (supra) and State of U. P. v. Lakhmi (supra).

To sum up, we hold that the circumstantial evidence unfailingly proved the prosecution case that the accused had caused the death of Nirmala by throttling and smothering in the night between 11th and 12th May 1983 in his house at Washi. We, therefore, hold that the accused is guilty of an offence under Section 300 of the Indian Penal Code and convict him for the same offence.

33. We must also record the last ground argued by the accused before us regarding the pendency of this appeal for the last 18 years. He stated that he has lived with the order of honourable acquittal all these years and even if he was convicted by the trial Court by now he would have undergone and completed the sentence of imprisonment for life. He, therefore, urged that this itself is a fit ground to confirm the order of acquittal. These submissions do not commend to us.

This appeal was admitted on 3-12-1984. The accused recorded his appearance through an advocate on 5-6-1986. When the appeal reached for final hearing on 20-1-1997 none was present for the accused. His Advocate filed Criminal Application No. 1760 of 2000 seeking leave to withdraw his appearance. On 22-1-2001 this Court issued notice to the accused for engaging any other advocate for his defence or to defend his case in person. The notice issued to the accused was returned with a remark that he was not residing on the given address and his whereabouts were not known. Therefore, by order dated 7-6-2001 this Court directed the learned Sessions Judge at Osmanabad to initiate appropriate action against the accused and the surety to secure the presence of accused. The learned Sessions Judge, Osmanabad, reported that the surety of the accused was reported to be dead and as the accused could not be traced and hence, he could not re-arrested. Finally, the accused was arrested on 2-9-2001 and remanded to the District Prison, Osmanabad. On 10-9-2001 when the appeal appeared on the Board for final hearing, the accused was called upon to make arrangements for his appearance before the Court through any other advocate. He was released on bail on the same terms and conditions with fresh surety and fresh bond. He preferred not to furnish fresh bond and surety and to remain in jail.

Pursuant to the directions given by this Court, the accused was produced on 3-6-2002 when the appeal was listed for final hearing. On 4-6-2002 we passed a detailed order explaining as to why the appeal could not proceed further for hearing. When he realised our determinations not to adjourn the appeal any more he took out every trick from his armoury for adjoining (sic) the appeal indefinitely. He went to the extent of saying that he wanted to engage an advocate from overseas and that too, without mentioning the name of country or name of advocate. When the President of the Bar of this Bench offered legal assistance to the accused, he declined the same and stated that he would argue the case himself. When the arguments of the Prosecutor commenced, the accused put up a plea before us that he was without paper-book and therefore, the order was passed to provide a paper-book which was accordingly done by the registry. Half-way through his arguments the accused took a plea that he could not argue unless duly certified copies of all the relevant statutes were provided to him. The behaviour of the accused as demonstrated before us is one of the main reasons for this appeal pending before this Court and he has to blame himself. Passage of time cannot be the sole ground for upholding the acquittal order.

34. For the reasons elaborately stated by us hereinabove we allow the appeal and quash and set-aside the order of acquittal in Sessions Case No. 50 of 1983 passed by the learned Sessions Judge, Osmanabad. We hold that the circumstantial evidence unerringly proved the prosecution case that the death of Nirmala was caused by the accused by throttling and smothering in the night between 11th and 12th May, 1983, in his house at Washi. We, therefore, hold the accused guilty of an offence under Section 300 of the Indian Penal Code and convict him for the said offence of Nirmala's murder.

35. After pronouncing the order of conviction, we have heard the respondent-accused, party in person, on the issue of sentence. He submitted that he being a member of the Bar and there being no evidence in support of the prosecution case leniency should be shown to him. The learned Additional Public Prosecutor, on the other hand, submitted that the plea made by the accused for showing leniency is devoid of merits and it should not be considered. In any case, it is not stated by the prosecution that this is a rarest of the rare cases for capital punishment of death. We have referred to the recent judgment of the Apex Court in the case of Lehana v. State of Haryana, JT 2002 (Supp) (1) SC 577 and we are satisfied that the appropriate sentence in this case would be life imprisonment. We accordingly sentence the respondent-accused to undergo rigorous imprisonment for life.

36. The respondent-accused made an oral application under Article 134(1)(c) and prayed for grant of certificate under Article 134A(b) of the Constitution on the ground that he has raised substantial questions of law of general importance and more so the validity of Section 162 of the Code of Criminal Procedure, 1973. We are satisfied that this oral application made before us is devoid of merits and the same is hereby rejected.

37. At this stage, the respondent-accused also orally prayed for suspending the order of sentence. It is worthwhile to note that the accused was absconding and when he was re-arrested on 2-9-2001 at the instance of the Sessions Court, Osmanabad, this Court granted him bail on conditions. However, he failed to

satisfy the conditions for bail and remained in jail. Once the order of acquittal has been converted by us into an order of conviction, there is no question of suspending the order of sentence by this Court. Hence, the oral application for suspending the order of conviction is also rejected.