Mukharu vs State Of Maharashtra
2002 Latest Caselaw 990 Bom

JUDGMENT

S.G. Mahajan, J.

1. The judgment and order impugned in this appeal were passed by the learned Sessions Judge, Chandrapur, on 24.11.1997 in Session Trial No. 68 of 1997, whereby he convicted accused No. 1 Mukhru son of Kisan Tiwade of the offence under Section 302, 1. P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1,000/- or in default to suffer R.I. for three months more.

2. The case of the prosecution is as under:

(A) Deceased Venubai, who was the daughter of one Kawadu Rohankar, was married to accused No. 1 Mukhru Tiwade and their marriage was solemnized in 1991. Accused No. 2 Kisan Tiwade is the father and accused No. 3 Sitabai Tiwade is the mother of accused No. 1. All the three accused and deceased Venubai were living together in a house at Halda. About two years after the marriage, Venubai was taken to the house of her uncle named Mukhru Rohankai for delivery. The residence of Mukhru Rohankar was also at the same village, ie. Halda. Venubai gave a birth to a male child, who died within a few days. Thereafter the accused persons did not take Venubai back to their house. She was, however, taken back to the house of accused persons after about one year by the aunt of accused No. 1.

(B) During the stay of Venubai at the house of accused after her delivery, she was ill-treated, harassed and beaten by the accused persons. It is the case of the prosecution that on 8-12-1996 at about 10.30 p.m., the accused persons in furtherance of their common intention, killed Venubai by throttling. After having killed her, accused No. 1 Mukhru Tiwade first went to one Tulshidas Jarurkar, who was doing, the medical practice in the village. Around 11,00 p.m., Tulshidas came to the house of the accused and after examining Venubai, declared her dead. Then accused No. 1 went to the house of Mukhru Rohankar, the uncle of deceased Venubai and informed him that Venubai was not speaking. Mukhru Rohankar came to the house of the accused persons. He saw Venubai in a sitting position with the support of accused No. 2 Kisan, On giving call to her, she did not respond. On touching her hand, Mukhru Rohankar found that her body was cold and she was dead. He found some scratches on the face of Venubai. He suspected that Venubai was killed by the accused persons by throttling. Next morning, Mukhru Rohankar approached Police Station Pathari and lodged the report.

(C) Initially, the accidental death case was registered. On the same day, the police arrived on the spot of occurrence and drew the spot panchanama and inquest panchanama. The dead body of Venubai was forwarded for post mortem examination. The post mortem was conducted on 10.12.1996. It was revealed during the post mortem that Venubai had died due to asphyxia on account of throttling. On receipt of the post mortem report, the police registered the crime under Sections 498-A and 302 read with Section 34, I.P.C. against all the three accused. The necessary investigation was conducted and on completion of the same, the accused persons came to be charge-sheeted.

3. On the case being committed to the Court of Session, the learned Sessions Judge, Chandrapur, framed the charge of the offences under Sections 498-A and 302 read with Section 34, I.P.C. against all the accused. The charge was read over and explained to the accused persons and they pleaded not guilty. Their defence was of denial and false implication. It was contended that during the relevant night at about 10.00 to 10.15 p.m., Venubai woke up and went out from the house probably for easing. However, she fell down near the door of the house. Due to her fall, the bullocks got alarmed. Hearing the sound of bullocks, accused No. 1 Mukhru Tiwade woke up and came out of the house and found that his wife was lying there. Accused Nos. 2 and 3 also came out from the house. The doctor was called and on examination, he declared Venubai dead.

4. The prosecution in all examined eight witnesses on its side. Although some of the witnesses stated about the ill-treatment meted out to deceased Venubai by the accused persons, the learned Sessions Judge found their evidence on that point shaky. He based his conclusion in this respect on the statements of those witnesses recorded by police. He found the statements purported to be recorded on 9.12.1996 and 10.12.1996 identical and verbatim. He also concluded that some of the statements, which were produced with the case diary, must have been procured later on. Thus, the learned Judge found the statements of the witnesses recorded by police on the above point suspicious. He accordingly held that the offence under Section 498-A read with Section 34, I.P.C. was not made out against the accused persons and the accused were, therefore, exonerated from that offence.

5. As already stated above, accused No. 1 Mukhru Tiwade was only found guilty of the offence under Section 302, I.P.C. and he was convicted and sentenced, as stated earlier. The learned Judge found that the offence under Section 302 read with Section 34, I.P.C. was not proved against accused No. 2 Kisan and No. 3 Sitabai. Thus these accused were acquitted of that offence also.

6. There is no direct evidence on the point of actual commission of murder by accused No. 1 Mukhru Tiwade. The conviction of accused Mukhru Tiwade in respect of the offence under Section 302, I.P.C. is based on circumstantial evidence. The proof of the circumstances against accused No. 1 is in the form of inquest report and medical evidence. It would, therefore, be worthwhile to look into the inquest panchanama and medical evidence.

7. The inquest panchanama was drawn by P.S.O., Pathari on 9.12.1996 between 2.00 and 3.00 p.m. It is at Exhibit 42. The recitals in the inquest panchanama show that the froth was coming out from the nostril of the deceased. Several injuries were noticed on her face. They were in the form of nail scratches, abrasions and cut injury.

8. The post mortem was conducted on the body of Venubai on 10.12.1996 between 1.00 p.m. and 3.30 p.m. by Dr. Andelkar and Dr. Mrs. Bajaj in Primary Health Centre, Bramhapuri, on external examination, the following injuries were noticed :

(1) Contusion over right eye-brow, 1 cm. above the eye-brow on lateral part, size 1 cm. x 1 cm.

(2) Swelling of upper and lower eye-lid on right side.

(3) Subconjuctival hemorrhage present in right eye.

(4) Contused abrasion over left part of nose, size 5 cms. x 4 cms.

(5) Multiple small abrasions over left cheek and below chin.

(6) Marks of dried blood and saliva over both corners of mouth, about 6 cms.

(7) Subcutaneous haemorrhage present over skin, 4 cms. below chin on anterior part of neck.

All the above injuries were ante mortem.

On internal examination, brain, larynx and trachea were seen congested. Haematoma was present over muscular part of larynx, 4 cms. x 2 cms. Both cornuae of hyoid bone appeared broken. The lungs were congested. Essophagus was congested. So also, small and large intestines, liver, gall bladder, pancreas, spleen and kidney were congested. In the opinion of the doctors conducting the post mortem examination, the death was caused due to asphyxia on account of throttling.

On the basis of the above medical evidence, it would be reasonable to infer that the deceased was killed. The external injuries on her face indicate that before the throttling was made, she had a scuffle with the person, who made throttling.

9. The learned Counsel for accused/appellant contended that there were no scratches or marks of fingers or nails on the neck, which would suggest the throttling. However , as per the opinion of Medical Expert Dr. Andelkar, such marks around the neck are not a must in the case of throttling. In the present case, the hyoid bone was fractured. The Counsel for accused/appellant contended that the fracture of hyoid bone can occur due to fall on hard substance. Dr. Andelkar admitted during his cross-examination that due to fall on a hard substance, hyoid bone may get fractured. But his further evidence clarifies that if the hyoid bone is broken or fractured due to fall on some hard substance, it will not result in asphyxia, nor will it cause congestion to the other internal organs, as noticed in this case. In the present case, the death of the deceased occurred due to asphyxia and the various internal organs were congested. If the cause of death, which is asphyxia in this case, is seen coupled with the fracture of hyoid bone the irresistible conclusion would be that the death of deceased Venubai was due to throttling and the possibility of the fracture of hyoid bone due to fall, is completely ruled out.

10. The deceased died because of throttling in the house of the accused persons. There was none present besides accused Nos. 1 to 3 in the house at the time of her death. Accused No. 2 Kisan, who is the father of accused No. 1 and accused No. 3 Sitabai, who is the mother of accused No. 1, are the old persons. They cannot be said to have any reason to participate in the act of assault and throttling, for which a sufficient force is required. Moreover, three persons were not required to kill the deceased. The accused/appellant is a young man. On his arrest, he was medically examined and the medical report Exhibit 52-A shows that he was having an abrasion on the right cheek. In the opinion of the medical officer concerned, the above injury could be caused by hard and blunt object. The injuries on the face of deceased Venubai suggest that she must have sustained the same during the resistance and the above injury on the person of the accused/ appellant suggests that it must be the accused/appellant whom the deceased must have offered the resistance. Further the plea of accused No. 1 of the fall of deceased is falsified by medical evidence. All these factors go to suggest that it must be accused No. 1., who is the present appellant, who must have killed the deceased. The learned Sessions Judge, therefore, rightly exonerated accused Nos. 2 and 3 and convicted accused No. 1 i.e. the present appellant, of the offence under Section 302, I.P.C.

11. For the above reasons, no interference is called for in the order of conviction and sentence passed by the learned Sessions Judge, Chandrapur. The appeal deserves to be dismissed. The appeal is, therefore, dismissed.