Machindra Hariba Mohite vs The State Of Maharashtra
2010 Latest Caselaw 249 Bom

     ssp                                      1

                                                                           
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  




                                                                           
                          CRIMINAL APPELLATE  JURISDICTION
                              
                                   CRIMINAL APPEAL NO.291/1990 




                                                   
     Machindra Hariba Mohite,                                         Appellant 
     Age-57 years,
     Agrigulturist of Gaurgaon,




                                                  
     Dist. Sangli
            versus
     The State of Maharashtra                                          Respondent




                                    
     Mr.Abhay Kumar Apte, for the appellant, appointed from Legal 
     Aid.         
     Mrs.V.R.Bhosale, APP a/w Mr.J.P.Khadge, APP, for respondent 
     State. 
                 
                             CORAM:  P.B.MAJMUDAR &
                                             MRS.MRIDULA BHATKAR,JJ.

DATE: 3rd DECEMBER,2010.

ORAL JUDGMENT (Per Mrs.Mridula Bhatkar, J.)

. This appeal is directed against the judgment and

order passed by the Additional Sessions Judge, Sangli, dated

6/3/1990 in Sessions Case No.41 of 1987, by which the learned

Additional Sessions Judge has convicted appellant/accused for

the offence punishable under Section 302 of Indian Penal Code

and sentenced him to suffer imprisonment for life and to pay a

fine of Rs.1,000/-, in default to suffer R.I. for one year. The

appellant/accused has also convicted for the offence punishable

under Section 201 of Indian Penal Code and sentenced to suffer

R.I. for two years and to pay a fine of Rs.200/-, in default, to

suffer R.I. for three months.

2. It is the case of the prosecution that one

Ramchandra Bhujanga Pawar is native of Mouje Ghatnandre and

was living there with his wife, six sons and four daughters.

Deceased Sunanda was daughter of Ramchandra. Initially she

was married to a person from Garalewadi. Later on, her

husband deserted Sunanda and therefore, she was living with

her parents. Accused is a distant relative of Ramchandra. The

relationship between the accused and his first wife was

estranged. The accused had married the deceased one and half

months prior to the incident. After the marriage, the accused

and deceased Sunanda used to live at Ghatnandre and then they

shifted to the house of Sambhaji Padalkar at Raiwadi. Accused

was suspecting the character of deceased Sunanda and used to

harass her.

3. It is the case of the prosecution that on 05-01-1987,

accused went to the house at about 10.10 a.m., and came out

from the house after some time, rubbing his trouser as it had

caught fire. The fire in the house of the accused was seen by two

boys namely Mohan Mohite and Bajirao Jadhav and therefore,

they screamed. As a result of this, neighbours, teachers and

other boys of the School, gathered at the spot of incident. In the

meantime, accused went towards Nagaj. Police Patil was called.

The people who were gathered there, demolished the wall of the

house so as to extinguish the fire. Dead body of the accused was

found in the house. Police Patil of Nagaj reported the incident to

Kavathe-Mahankal Police station. The police personnel visited

the house of accused at Raiwadi and conducted the inquiry.

Mr.Vishnu Pawar (P.W.1) lodged the F.I.R. (Exh.21), on the basis

of which accidential death at Sr.No.2 of 1987. Further

investigation was carried out by ASI Patil (P.W.6). Inquest

panchanama of the dead body was prepared and the dead body

was sent for post-mortem. Panchanama of scene of occurrence

was also drawn vide Exh.10, under which some articles have

been seized. The Medical Officer opined that the death of the

accused was caused due to throttling. ASI Patil (P.W.6) lodged

report against the accused and offences came to be registered

against the accused at C.R.No.1 of 1987. Accused came to be

arrested and was admitted in the hospital, as he had sustained

burn injuries on his fore arms and face. His garments were also

attached under the Panchanama at Exh.12. Investigation Officer

recorded the statements of the witnesses and investigation was

handed over to PSI Waghchore. On completion of investigation,

PSI Chavan filed chargesheet against the accused on 20-04-1987.

4. The case was accordingly committed to the Court of

Sessions and the learned Sessions Judge framed charge against

the accused on 17-07-1989 at Exh.1. The accused did not plead

guilty to the charge and claimed to be tried.

5. Initially, the above appeal was disposed of by a

Division Bench of this Court by a judgment & order dated

19/4/2007. The said judgment was challenged in the Supreme

Court. The Supreme Court remanded back the same as the

appeal before this Court was heard in absence of the advocate of

the appellant/accused.

6. On behalf of the prosecution, eight witness were

examined. Mr.Vishnu Maruti Pawar (P.W.1) in his examination-in-

chief stated that he is a native of Mouje Ghatnandre and the

parents of the deceased are also natives of the said Village.

According to him, deceased Sunanda was given in marriage to a

person from Garalewadi. After some time, her husband deserted

Sunanda and therefore, she was living with her parents. He

deposed that he is a primary teacher and posted at Raywadi

School since 1980. According to the said witness, one and half

months prior to the incident, parents of the deceased informed

him that they have performed second marriage of deceased

Sunanda with the accused Machindra Mohite. After the

marriage, accused shifted to Raiwadi, where he had a rented

room in the house of Sambhaji Padalkar, which is in front of his

school. The distance between his school and the house of

Sambhaji Padalkar is about 50 to 60 feet.

7. Mr.Vishnu Maruti Pawar (P.W.1) further stated that

on the day of incident i.e. 05-01-1987, he had been to the School

at about 10.45 a.m. After the prayers of the students, they went

to their class rooms and the teachers went towards the Teachers

Room for signing muster-roll. At that time, he saw the accused

going to the house. While they were in office, heard two boys

shouting that the house of the accused was in fire. On hearing

the same, the witness and other staff, came out from the office

and they saw Mohan Sitaram Mohite and Bajirao Sitaram Jadhav

standing in front of the house of the accused. Neighbouring

ladies came to the house of the accused from the north side. He

along with teachers and some other boys, came out from the

school and saw that the accused emerging from the house and

his right leg of trouser was burning upto the level of under-pant.

Accused was trying to extinguish the fire. Accused started slowly

walking away towards Nagaj by saying "let her die". The said

witness further stated that Police Patil was called by somebody.

After arrival of Police Patil, wall of the room was demolished and

the fire was extinguished.

8. In the cross-examination, the witness had admitted

that the door of the house of accused was opened. He further

stated that after the ladies and the boys had gone away, accused

came out from the house.

9. The prosecution also examined Mr.Shrirang

Ramchandra Pawar (P.W.2) at Exh.22. Learned Trial Judge has

recorded that the said witness is not properly giving his age.

However, he is taking education in 7th Standard. He stated that

he is living at Ghatnandre with his parents and the deceased was

his sister. The witness stated that prior to one and half month of

the incident, accused married the deceased Sunanda. He stated

that the deceased was complaining that the accused was

suspecting her chastity and was illtreating her. After eight days,

the parents of the deceased sent him to the house of the

deceased for giving toe ring (Jodavi) to her. At that time,

accused was not there and he returned to his house in the

evening. He stated that when the accused saw him, the former

started abusing him and asked him as to why he had come to his

house. He further stated that on the next day, while he was

returning to the house, deceased Sunanda accompanied with

him upto the brook and at that time, deceased Sunanda told him

that her husband suspects her chastity and therefore, he

belaboured her. The witness thereafter, returned the house and

apprised the family members about the same. Nothing

substantial can be elicited during the cross-examination of this

witness.

10. Prosecution has examined Mr.Mohan Sitaram Mohite

(P.W.3). The said witness in his evidence stated that incident in

question took place at about 11.15 a.m. At that time, he was

taking education at Shri Siddheshwar High School, Nagaj. He

stated that on the relevant day, he was not wearing school

uniform because the same was given to the tailor for stitching.

He was scolded by the class-teacher and asked him to go back to

the house in the recess and came to the school in uniform. As

per the evidence, the witness went to the shop of a tailor, but the

tailor did not stitch his pant. The witness therefore, returned to

his home, took meal and again went for taking his trouser. On

his way, Bajirao Jadhav met him near Chawadi and asked him to

wait, as the former was also going to Nagaj. Mr.Bajirao then

went to his house, took meal and came at Chawadi. Then, they

proceeded towards Nagaj. On their way to Nagaj, they saw the

incident in question. They saw smoke coming out from the

accused and therefore, they shouted. They saw accused coming

out from the accused and his right trouser leg had caught fire.

Accused was uttering words "let her die". In the cross-

examination, he stated that his presence was marked in the

muster roll of the class upto the recess. The witness admitted

that he saw the smoke coming from the accused, but feigned

ignorance as to whether roof had caught fire, as he did not pay

attention to the roof.

11. The prosecution also examined Mr.Kamal Shankar

Patil (P.W.4). He stated that he is a primary teacher. On the date

of incident, he had been to the School as usual. After the prayer,

he along with other teachers, went to the office of Head Master.

About 5 to 7 minutes thereafter, they heard somebody shouting

that there is a fire. They saw two boys namely Mohan Sitaram

Mohite and Bajirao Sitaram Jadhav standing in front of house

which had caught fire. He saw accused stood there uttering

some words for about 5 minutes.

12. Mr.Ganpatrao Rangrao Patil (P.W.5) was also

examined on behalf of the prosecution. According to him, on

05-01-1987, he had been to the farm in the morning. He was

told that Kotwal had came to the house to call him and therefore,

he went to Chawdi. He found that villagers had brought the

accused and had detained him at Chawdi. He stated that right

leg of the trouser of the accused and right portion of his shirt had

burnt. In the cross-examination, he stated that accused was

sleeping on the floor when he saw the accused.

13. Mr.Tukaram Akaram Patil (P.W.6) was also examined

on behalf of the prosecution. According to him, on the relevant

day, Police Patil of Nagaj contacted him on telephone and

informed him that accused has detained at Chawadi as he had

sustained burns. He states that the accused was not in a position

to speak properly as he had sustained burns. He therefore, sent

accused to Primary Health Centre for treatment. He prepared

panchanama of scene of occurrence and also drawn inquest

panchanama of the deady body of the deceased. He further

states that he received advance certificate from medical officer to

the effect that death is caused on account of throttling. He

therefore, lodged report against the accused and registered the

offence being C.R.No.1 of 1987 under Section 302 of IPC and

made endorsement in the margin of FIR at Exh.28.

14. On 07-01-1987, he recorded statements of witness

and made inquiries with the accused who was admitted in the

Civil Hospital, Sangli. He also examined Stove and it was found

to be in order. In the cross-examination, the witness admitted

that the accused was admitted in the hospital as an indoor

patient from 05-01-1987 to 19-01-1987.

15. Prosecution has examined Mr.Pradip Marutrao

Chavan (P.W.7) at Exh.29. He stated that he verified the papers

and submitted the Chargesheet against the accused in the Court

of J.M.F.C., Kavathe Mahankal.

16. Dr.Ananda Nana More (P.W.8) was also examined on

behalf of the prosecution. He stated that he was attached to

Primary Health Centre Dhalgaon since June 1986. On

06-01-1987, dead body of Sunanda was received at PHC at 11.45

a.m. He carried out post-mortem along with Dr.Kamble. He

stated that deceased was well-nourished and there were burns all

over the body except the back side. He stated that in column No.

21, he has stated that the tongue was protruding outside the

mouth 3 to 4 cms from the mouth. He stated that the death is

caused on account of shock due to cardiac respiratory failure due

to asphyxia due to strangulation.

17. This is the oral evidence adduced by the prosecution

in order to prove its case. The defence has not led any evidence.

However, a written statement is submitted by the accused. In the

said statement, accused has stated that when he saw the

unexpected incident and noticed that Sunanda was died, he

became confused and therefore, he did not know what he was

doing and where he was going. He was not conscious. In such

confused condition, he went at Nagaj and slept near road and

then people brought me in Chawadi.

18. We have heard the learned counsel for the

appellants and the learned APP for the State and have gone

through the documentary and oral evidence on record.

19. Postmortem report of Sunanda throws light on the

cause of her death. Column 20 reads as under-(Page 41 of the

paper book).

Thorax -

     a ]    Walls,ribs,cartilage          1] At both superior horu of 
                                              Thyroid Cartilages




                                  
     b]      Pleura                       2]  Coxepronion of lartnx & 
                  ig                            Nachea

     c]      Larynx,Trachea               3]   Heucatacaerond the trachea 
            Larynx And Bronchi 
                
     d ]    Right Lung-Congested          4]    Laraynx,Trachea,Bronchi 
                                          shows congestion c blood 
                                          stained mucaes.
      
   



                                          5]     Trachea,Brochi does not 
                                                 show sucokes or black 
                                                 mucou





                                          21]    Slve of heart is full of 
                                                 blood closted
                                          20]    Exactly weight-2170 gms.
         





     e]     Left Lung -Congested

     f]     Pericardium

     g]       Heart with weight 







     h]     Large Vessels                        Full of blood.

Opinion of the doctor about the cause of death of Sunanda is :

Shock due to cardio -respiratory failure due to

asphyxia due to strangulation.

20 The opinion is based on the injuries mentioned in

column -20 of the postmortem report. It shows that superior

thyroid cartilage was broken. Thus the cause of her death was

not burning but it was strangulation which has taken place in her

house. The submission of learned counsel Mr.Apate that who

killed or who strangulated Sunanda is not seen by enybody is

true. However, the prosecution case did not stop there but it also

comes with further story i.e. the body of Sunanda was

subsequently found burnt.

21. The case of the prosecution is mainly based on the

conduct of the accused which is relevant under section 8 of the

Evidence Act and is to be appreciated considering all the

incriminating circumstances tendered by the prosecution. If there

was fire in the house of the accused and the accused had come

across the dead body of his wife in burning condition then

obvious and natural conduct of the accused was to rush to the

police or to give call to the public , request them to help him and

take his wife to the hospital. Instead the accused quietly went

away and then slept outside the house near the road. The fact of

homicidal death of Sunanda is not disputed. Semi digested food

i.e.Rice and Dal was found in her intestine at the time of

postmortem. It shows that she had consumed food approximately

one and half hour prior to her death. However, time of her death

cannot be determined as there is no specific time given by the

doctor. So she must have been killed either in the night after

having dinner or in the morning after having her breakfast. She

was found dead at about 11.15 to 11.20 a.m.. Prosecution

Witness no.8 Dr.Nanda More deposed that she found that there

were no burn injuries on the back side of the body. Thus, it

corroborates the fact that her body was burnt after she was killed

and therefore, the burn injuries were not found on her back. In

the spot panchanama a Can of kerosene with little kerosene was

found in the room. It shows that kerosene was used to burn the

body. On this point the learned Trial Judge has properly dealt

with the evidence of the Medical Officer and the panchanama.

22. The motive is generally required to be proved in any

criminal trial . In the present case the learned Sessions Judge has

elaborately assessed the evidence of P.W.2 Shrirang Pawar,

brother of deceased Sunanda who was 12 years old witness . He

has deposed that his sister has told him that her husband i.e.the

accused used to be suspicious about her character and used to

torture her. He has also deposed that when he went to meet his

sister the accused did not like it and he asked him to get out of

the house. However, the accused was very rude and expressed his

dislike. This is evident to show that the relations between the

husband and wife were strained. In fact they had a very short

married life of only one and half months , but the newly married

couple was not sailing smoothly.

23. Thus, the accused in his statement under

section 313 of the Code of Criminal Procedure has stated that he

was confused when he came out and was also got burnt so he

went and slept near the road. The accused has right to keep

mum and the prosecution has to stand on its own footing.

However, when the incident has taken place where husband and

wife's relationship is involved then up to certain extent some

explanation or some suggestion should come from the accused.

24. While opposing the conviction the appellant relied

on (Sushil Kumar Vs.State of Punjab (2009)10 Supreme Court

Cases,434 wherein it is observed that-

"On the other hand, learned counsel for the respondent strongly contended before us that in any case it is not a case of acquittal for the following reasons-

i] Dead bodies were found from the house of the

appellant where he was also living with them and has not explained about the incident;

ii] Bloodstained bedsheets,clothes, pillows were recovered from the bedroom, where the dead bodies were found which was shared by the

appellant too ;

iii] Recovery of knife and rope from the same place;

iv] The appellant was last seen by Satpal (PW4) at

5.00 a.m. ,while he was coming out from his house in a perplexed condition;

v] Sukhdev (PW2) had no occasion to visit the house of the appellant at 6.30 a.m.on the fateful day unless he was informed about the incident by the appellant;

vi] Couple was havingstrained relations and was passing through bad financial conditions ; and vii] Taking of false plea of alibi is also one of the strong circumstances against the appellant to connect him with the commission of crime. "

25. Thus, we are of the opinion that all the

circumstances are complete and no gap is left in the chain of the

evidence.

26. Learned counsel Ms.Bhosale further relied on (State

of West Bengal Vs.Dipak Haldar and another ) (2009) 7 Supreme

Court Cases 288. It is observed in paragraph 16 as under.

The circumstances which were highlighted by the prosecution and on which the trial court placed reliance are as follows.

a. There is nothing on record or even reply to the

question put to Respondent 1 in examination under Section 313 Cr.P.C.that he tried to put off the fire and that he made any inquiry in the hospital as to the condition of his burnt wife.The fact remains that he was in a position

to make appropriate arrangement for treatment of his wife but he did not do so. No reason has been assigned as to

why he did not accompany his deceased wife in the hospital along with the neighbours.

b. There is nothing on record that accused Dipak

Haldar did anything to save the life of his wife from the fire. There is also nothing that he called the neighbours for help in such great danger.

c. ........

d..........

e. After a careful consideration of the facts, the

circumstantial evidence on record and the attitude and conduct of the accused persons ,it can be held without any hesitation that the deceased was physically assaulted before the fire.

27. This ruling highlights the circumstances which were

established by the prosecution that the accused did not do

anything to save the life of his wife from the fire and there is also

nothing on record to show that he called the neighbours for help

in such a danger and also that there is no evidence that accused

Deepak performed any of his duties for the treatment of his burnt

wife.

Paragraph 19 of this ruling states that -

"In the instant case, apart from the fact that the accused did not make an effort to save the deceased but was shown to have been abusing the deceased and his relatives,tried to

prove his innocence by manipulating the records of a nursing home. The obvious attempt was to show that he could not have looked after the treatment of the wife as he himself was undergoing treatment. Several other factors

throw considerable light relating to the absence of any material to show that a stove had burst which resulted in

causing injuries on the body of the deceased."

28. From the aforesaid evidence, in our view, the

prosecution has established the fact that the accused entered the

house and came out from the accused in presence of witnesses.

Thereafter, the accused went at Nagaj area and slept there. It is

therefore, crystal clear that the accused on his own came out

from the house and was able to walk. It is also clear that the

accused did not take care of his wife in any manner. Even

otherwise, the prosecution has clearly proved that the death of

the deceased was homicidal one. Considering the evidence on

record, the prosecution has amply proved from the circumstances

brought on record the fact that the accused committed the

aforesaid offences by murdering his wife and prosecution has

proved its case beyond all reasonable doubt and by

circumstantial evidence. In such circumstances, the natural

conduct of a husband to take care of his wife without leaving the

house and wife in such a condition. It is also required to be

noted that the presence of the accused at the scene of incident is

not in dispute and as such, the accused also admits his presence

at the scene of incident on the relevant day.

29. Considering the evidence on record, in our view, the

learned Additional Sessions Judge has rightly appreciated the

evidence and convicted the accused for the offence for which he

was charged. In view of what is stated above, the appeal is

dismissed. The order of conviction and sentence passed by the

learned Sessions Judge, Sangli, is hereby confirmed. The

appellant/accused shall surrender to his bail and shall be taken

in custody forthwith to undergo the remaining sentence. Set off

under Section 428 of Cr.P.C., if any, shall be available to the

accused.

30. The learned counsel for the appellant requested for

some time for surrendering. Eight weeks time is granted by

which the appellant/accused shall surrender to the concerned

police station to suffer remaining sentence.

P.B.MAJMUDAR,J

MRS.MRIDULA BHATKAR,J.