In The High Court Of Judicature At ... vs Heard Rival Arguments At Length In ...
2010 Latest Caselaw 53 Bom

                                       1



                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                        
                     NAGPUR BENCH : NAGPUR




                                                
    Criminal Appeal No. 145 of 2005




                                               
    Appellant        :   Ganesh Radhesham Sharma, aged about

                         28 years, resident of Dahigaon Awtade,




                                      
                         Tahsil Telhara, District Akola



    Respondent       :

versus

The State of Maharashtra

Mr Anil Mardikar, Advocate for appellant

Ms B.P. Maldhure, Additional Public Prosecutor for State

Coram : A. H. Joshi & A. R. Joshi, JJ

Date of Reserving the Judgment: 12.10.2010

Date of Pronouncing the Judgment:19.10.2010

Judgment (Per A.R. Joshi, J)

1. Heard rival arguments at length in this appeal

which is preferred by appellant/original accused no.1

challenging the judgment and order of conviction passed

against him in Sessions Trial No. 213 of 2003.

2. The impugned judgment and order was passed on

th 14 January 2005 by learned Adhoc Additional Sessions

Judge, Akola. In Sessions Trial No. 213 of 2003 present

appellant/ original accused no. 1 and other co-accused,

his brother Suresh and mother Meerabai were tried for the

offences punishable under Sections 302, 498A read with

Section 34 of the Indian Penal Code. By the impugned

judgment and order, original accused nos. 2 and 3 were

acquitted.

The State of Maharashtra has not preferred

appeal against the said acquittal.

3. Present appellant/accused no. 1 was convicted

for the offence punishable under Section 302 of the Indian

Penal Code and was sentenced to suffer imprisonment for

life and to pay a fine of Rs. 1000/-, in default, to

suffer further rigorous imprisonment for one month.

Appellant was also convicted for the offence punishable

under Section 498A of the Indian Penal Code and was

sentenced to suffer rigorous imprisonment for three years

and to pay a fine of Rs. 500/-, in default to suffer

further rigorous imprisonment for one month. Substantive

sentences were directed to run concurrently. Admittedly, th since 7 August 2003, the appellant/accused no. 1 is in

jail custody till today.

4. The prosecution case can be narrated in nut-

shell as under.

5. Deceased Seema was married to present appellant/

accused no. 1 Ganesh about six years prior to the incident

st of 1 August 2003. Out of wedlock, the couple had one son

by name Shantanu. Appellant was serving in Janata

Commercial Cooperative Bank as peon. His service was

transferred to various places and

Karanja (Lad) where he initially joined the service.

                                                              then    again         back     to

                                                                                             On
                           
                  th
    or about 12        July 2003, appellant/accused resumed his duty

    at Karanja (Lad).          However, he worked for a day and gave

    application for leave and left the place of his work.                                  His
      


    application for leave was rejected.                          In the mean-time,
   

Seema, wife of appellant, had been to the house of her

brother at Khamgaon and stayed there for about 15/20 days.

Apparently, accused Ganesh had a talk with Seema and she

asked him to resume duty at Karanja (Lad) to avoid further

complications and not to leave the job on that count.

That time, appellant/accused represented her that he was

at his usual place at Dahigaon Awtade and asked her to

come to said place where his mother and brother i.e. co-

accused were staying along with him. Seema left her own

son with her brother at Khamgaon and went to Dahigaon

Awtade and it was decided that she would make a telephone

call to her brother on reaching her matrimonial house at

Dahigaon. As per the arrangement, though Seema left for

Dahigaon Awtade, no telephone call was received by her

brother and as such, both the brothers of Seema were

rather anxious and worried.

6. Under the above circumstances, both the brothers

i.e. Bhikulal (P.W. 7) and Vijaykumar (P.W. 11) decided to

verify the factual position to find out the whereabouts of

but could

their sister Seema. Bhikulal (P.W. 7) went to Dahigaon

Awtade, not find anybody in the house i.e.

neither Seema nor her in-laws and her husband (appellant).

On enquiry with the villagers, it was revealed that there st was a quarrel on 1 Aujgust 2003 at the house of Seema and

she was beaten by appellant (her husband), his mother and

brother. It was also revealed to P.W. 7 Bhikulal that she

was removed to hospital at Telhara by her husband, present

appellant/ accused no. 1. P.W. 7 Bhikulal on reaching

Telhara found out that Seema was subsequently removed to

Main Hospital at Akola. P.W. 7 Bhikulal informed the

situation to his brother P.W. 11 Vijaykumar who was

stationed at Khamgaon and called him to Main Hospital,

Akola. As per arrangement, both the brothers met at Main

Hospital, Akola, but could not find Seema there and it was

further revealed that Seema was removed to some private

hospital by name Mankar Critical Centre. In the said

private hospital, they found Seema. However, they did not

find anybody from her in-laws and also did not find

appellant/accused any where in the hospital. Both the

brothers attended Seema and paid hospital charges for her th treatment. While in the hospital, on 4 August 2003 in

the evening, Seema died and therefore, on the next day th i.e. on 5 August 2003, P.W.7 Bhikulal lodged complaint

with Civil Lines Police Station, Akola against the present

appellant, his mother and brother

punishable under Sections 498A and 302 read with Section for the offences

34 of the Indian Penal Code for causing harassment, ill-

treatment and consequently, causing death of Seema.

7. On the complaint of P.W. 7 Bhikulal, offences

were regstered vide Crime No. 0/03 and then it was

forwarded to Telhara Police Station and another Crime No.

54/2003 was registered against the appellant and other co-

accused.

8. During investigation, the panchanama of the

scene of offence was conducted during which some blood

stains were found in the verandah of the premises where

the appellant was staying with his mother and brother

which was the premises of some temple. Statements of

various witnesses including neighbours of the appellant

were recorded. Accused were put under arrest. Allegedly,

at the instance of the present appellant, there was a

discovery of one leather belt which was used by the

appellant to assault his wife Seema. Post-mortem report

was obtained and muddemal articles including alleged

weapon of offence i.e. leather belt of appellant were sent

for chemical analysis. On completion of investigation,

charge-sheet was filed against all the three accused and

matter was committed to the Court of Sessions and was

tried by learned Adhoc Additional Sessions Judge, Akola.

9. During trial before the learned Adhoc Additional

Sessions Judge, out of thirteen witnesses, three were the

eye witnesses. However, they turned hostile to the case

of prosecution. These witnesses are P.W. 1 Sk Lukman,

P.W.2 Abdul Hamid and P.W. 3 Gajanan Tayde, residing in

the neighbourhood of the appellant/accused. According to

these witnesses, all the accused were residing in the Ram

Mandir i.e. the place of their permanent abode at Dahigaon

Awtade. Though these witnesses did not support the case

of prosecution as to witnessing and hearing the quarrel

between the accused persons and deceased Seema, part of

their evidence as to the accused persons commonly residing

at the temple at Dahigaon Awatade, has been taken shelter

of by learned Additional Public Prosecutor. By pointing

out this evidence, it is submitted by learned APP that the

appellant/accused was definitely at his house and was in

the company of his wife deceased Seema on the day when

alleged incident of assault took place. At this juncture,

it may be mentioned that this submission on behalf of the

prosecution is of much significance when the defence of

the accused is that of alibi. The defence of alibi shall

be dealt in detail hereunder at the appropriate place.

10. Prior to discussing the arguments advanced on

behalf of the appellant/accused, certain admitted facts

and certain proved facts can be mentioned as under:

(i) Appellant/accused brought his wife

Seema to the District Hospital, Akola on the

st nd night between 1 and 2 August 2003 and that

time, deceased Seema was examined by Dr Nehol

Vora (P.W. 12).

(ii) Deceased Seema was got discharged from

that District Hospital against medical advice.

She was taken by appellant/accused to another

hospital by name Mankar Critical Centre at Akola

and was examined by P.W. 10 Dr Arti Lokhande.

(iii) Deceased Seema, when brought in both

the hospitals as mentioned above, was in a

critical condition. When patient Seema was

nd brought at Mankar Critical Centre, Akola on 2

August 2003 by appellant/accused, she was

th throughout unconscious. She died on 4 August

2003 in the evening while still in unconscious

condition.

(iv) Death of Seema was due to strangulation

and there were injuries noticed on her person.

Post-mortem was conducted by Dr Ashwinikumar

Sapate (P.W. 9). ig Following injuries were found

as mentioned in the post-mortem :

(1) Face and conjunctivae slightly congested.

(2) Cyanosis of nail beds present.

(3) ligature marks with dark brown scab on

front of neck ½ cm above thyroid cartilage slightly V shaped with its centre in midline

and both limbs extending laterally and slightly

upwards, length of each limb 3 cm, breadth 1 cm, ligature mark is dry and hard.

(4) abrasion with brownish scab on right antero lateral aspect of neck extending down from ligature marks, limited medially on mid line, passing down on right margin of thyroid cartilage of size 7 cm x 9 cm and then obliquely crossing midline to reach on left antero lateral

aspect of neck down on two supra-sternal notch, medial and of clavical and upper half of manubrium of size 8 cm x 6 cm (more dark over clarvical and manubrium).

(5) Four skin deep cresentric abrasions with brownish scab, with their curves (convexities) directed downwards and slightloy medially, each 1 cm in length.

(6) One in left sub mandibular area 3 cm in front of left angle of mandible.

(7) one on right antero lateral aspect of necki,

1 cm right and 1 cm below right and of ligature marks 1 (a).

(8) 2 cresentric abrasions, ¾ cm apart one below rd other, 4 cm above medial 1/3 of right clavical.

(9) Contusion bluish 2 x 3 cm over tip of left shoulder.

(10) abrasion with brownish scab over back at level of first thorasic vertibra 3 cm left to

midline 3 x 3 cm.

(11) Abrasion with brownish scab over back over left scapular spine 3 cm x 2 cm.

(12) Contusion bluish 6 x 12 cm on right arm

lateral aspect in lower half upto elbow.

(13) Contusion bluish 2 x 2 cm on right elbow posterior aspect.

(14) Contusion on right forearm bluish 2 x 2 cm on anterior aspect in middle 2 x 2 cm.

(15) three contusions on right forearm lateral rd aspect one below other in upper 2/3 bluish each 2 x 2 cm.

(16) Contusion on right forearm lateral aspect 3 cm above to wrist 2 x 2 cm bluish.

(17) Contusion on right forearm posterior aspect 6 cm below elbow bluish 2 x 2 cm.

(18) four contusions one below other on left

forearm lateral aspect in upper half bluish, 1

x 1 cm each.

(19) abraded contusions with brownish scab 4 x 4 cm in right buttock upper outer quadrant.

(20) Contusion bluish 2 x 2 cm on right thigh just below glutel cold.

(21) abraded contusion with brownish scab over

dorsum of right second toe over first inter

phalangeal joint 1 x 1 cm.

(22) three contusions bluish on left thigh,

1/2 1/2 medial aspect in upper third 1 x 1 cm each.

(23) three contusions bluish on left leg anterior aspect just below left knee 1 x 1 cm each.

(v) The cause of injury no. 1 mentioned

above was ligature material, cause of injury

no. 2 was finger nail and cause of injuries no.

          3    to        17   was
                                 ig   hard   and    blunt      object     and      all

          injuries were antemortem.
                               
          (vi)                Appellant/accused          had       pleaded         the

          defence of alibi.              To substantiate this defence,
      

appellant did not produce any documentary and/or

oral evidence.

(vii) Blood stains were found in the

verandah of the house of appellant/accused and

it was noticed during the spot panchanama.

11. Bearing in mind the above circumstances, either

admitted or proved against the appellant/accused, the

arguments advanced on behalf of the appellant are narrated

as under :

(i) Independent witnesses P.Ws. 1 to 3

turned hostile who are alleged eye witnesses.

(ii) P.W.7 and P.W. 11, brothers of

deceased Seema are close relatives and

interested in decision of the matter. They are

not eye witnesses.

(iii) P.W. 12 Dr Vora who examined deceased nd Seema at District Hospital, Akola on 2 August

2003, gave medical certificate belatedly by

about 2

(exhibit 56) on 17

months.

th He gave medical certificate

October 2003.

(iv) Reliance placed by learned trial

Court on implication of Sections 113A and 113B

of the Evidence Act is misplaced inasmuch as

appellant/accused was not charged for the

offences punishable under Section 304-B and/or

Section 306 of the Indian Penal Code.

(v) Reliance cannot be placed on Section

106 of the Evidence Act as the prosecution

failed to establish the case against the

appellant/accused and burden under Sections 101

to 104 of the Evidence Act has not been

discharged.

12. As against the above arguments on behalf of the

appellant, learned Additional Public Prosecutor for State

submitted thus :

(i) Defence of alibi raised by the appellant

has not been established.

(ii) Presence of appellant/accused at his

house at Dahigaon Awtade on the night of incident

is established by substantive evidence of P.Ws.

1,2 and 3.

(iii) Conduct of appellant/accused as to he

taking his wife Seema to hospital is established

by P.W. 4 Ravindra Bharsakle and P.W. 5 Navneet

Khetan. P.W. 4 Ravindra is owner of the vehicle

and P.W. 5 Navneet is driver of the vehicle in

which Seema was initially taken to the Government

Hospital at Telhara. At this juncture, it must be

mentioned that appellant/accused had accepted the

suggestion which was put to him in Question No. 4

while recording his statement under Section 313

Cr.P.C. The said question and answer are

reproduced below for the sake of ready reference.

Q.No. 4 : It has come in the evidence of P.W. 5 Navneet Khetan that he was driver on the jeep of Barsakle. On 1.8.2003 he took you accused Ganesh and your wife to Telhara hospital from Dahigaon. He left you there and returned back. What you have to say about it ?

Ans : It is correct.

13. Now, coming back to the arguments advanced on

behalf of the appellant/accused, though it is an accepted

position that the eye witnesses P.Ws. did not support the

case of prosecution, there is substantive evidence that

the accused persons were residing at their usual place

i.e. temple along with deceased Seema. So far as theory

of last-seen-together is concerned, deceased Seema was

lastly seen in the custody of the appellant/accused. On

this concept of last-seen-together and as to on which

party the burden of proof lies, shelter of the following

authorities was taken on behalf of the respondent-State :

(i)Trimukh Maroti Kirkan v. State of

Maharashtra (2006) 10 SCC 681.

(ii)Dnyaneshwar v. State of Maharashtra (2007) 10 SCC 445.

14. No doubt, the initial burden to establish the

case against the accused always lies on the prosecution.

However, when certain circumstances are such, as in the

present matter, that the offences are committed in secrecy

inside the house, the nature and amount of evidence to be

led by the prosecution to establish the charge cannot be

of the same degree as is required in any other cases of

circumstance. These are the observations made by the Apex

Court in paragraph 15 of its judgment in Trimukh v. State

of Maharashtra (supra). It is further observed in the

said authority that the burden would be of a

comparatively lighter character and in view of Section 106

of the Evidence Act, there will be a corresponding burden

on the inmates of the house to give a cogent explanation

as to how the crime was committed. The inmates of the

house cannot get away by simply keeping quiet and offering

no explanation on the supposed premise that the burden to

is no duty

establish its case lies entirely upon the prosecution and

there at all on the accused to offer any

explanation. Other observations contained in paragraph 22

of the same citation are reproduced hereunder for the

purpose of ready reference :

22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to

show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife

received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of crime....

15. Similar observations are made by Hon ble Apex

Court in the second above cited case of Dnyaneshwar v.

State of Maharashtra and such observations are contained

in paragraph 10 of the said decision and which are

squarely applicable for the facts and circumstances of the

case at hand. The said observations are :

10. It has not been disputed before us

that the deceased was murdered in her matrimonial home. It is not the case of the appellant that the offence was committed by somebody else. It is also not his case that there was a possibility of an outsider to

commit the said offence. One of the circumstances which is relevant is that when

the couple was last seen in a premises to which an outsider may not have any access, it is for the husband to explain the ground for unnatural death of his wife....

16. So far as the matter at hand is concerned,

though the actual death did not occur at the matrimonial

home, there was definitely a deadly assault on Seema where

the appellant/accused was also staying and was present and

as such, the ratio propounded in the said authorities

mentioned above, can be taken in support of the case of

prosecution.

17. Counter to the above authorities on the aspect

of application or otherwise of Section 106 of the Evidence

Act, learned Advocate for the appellant has placed

reliance on the following authorities :

(i) P. Mani v. State of T.N.

(2006) SCC 161.

(ii)Hanuman Kisanrao Kadam v. State of Maharashtra

2006 (1) Bom. C.R. (Cri) 281.

(iii) Sharad Kondiba Walke v. State of Maharashtra 2010 (1) Bom. C.R. 551.

(iv) Murlidhar & ors v. State of Rajasthan (2005) 11 SCC 133.

(v) Sucha Singh v. State of Punjab (2001) 4 SCC 375.

18.

citations, it is

By pointing out the ratio propounded in these

strongly submitted on behalf of the

appellant/accused that Section 106 of the Evidence Act

does not postulate any hypothesis as to relieving the

prosecution of its burden to prove the guilt of the

accused beyond reasonable doubt. While further arguing on

this point, it is submitted that the initial burden always

lies on the prosecution to establish the involvement of

the accused in the offence and moreover, when the

prosecution has taken steps to establish its case by way

of evidence of eye witnesses, then it cannot fall back on

Section 106 of the Evidence Act and plead that the burden

is on the accused to explain the circumstances which are

specially within his knowledge as contemplated by the said

Section. Much emphasis was placed on the ratio laid down

in Murlidhar & ors v. State of Rajasthan (supra). We have

carefully gone through the said authority and the ratio

laid down therein. It was a case of abduction and murder

and the prosecution proceeded on the footing that there

were eye witnesses to the murder and the evidence of such

eye witnesses became unreliable. In that matter, the

conviction under Section 302 read with Section 34 of the

Penal Code was set aside by the Apex Court while

commenting that though the High Court found the evidence

of eye witnesses unreliable, it erroneously applied

Section 106 of the Evidence

erroneously held that once it was established that the Act and and further

appellants were the abductors and they failed to offer any

explanation as to what transpired after abduction, it

could be inferred that they had murdered the victim. On

the facts, present matter can be distinguished and in our

considered view, the observations of the Apex Court on the

special circumstances of that case cannot be taken shelter

of by the present appellant. In other words, in the

matter at hand, during the trial before the Sessions Court

itself, all the alleged eye witnesses P.Ws. 1,2 and 3 did

not support the case of prosecution and in fact, while

passing the impugned judgment and order, reasoning was

given by the Sessions Court and also recourse to the

provisions of Section 106 of the Evidence Act was taken

and that it is not new theory being implemented in this

appeal. In other words, the arguments advanced on behalf

of the appellant that reliance cannot be placed on Section

106 of the Evidence Act as the prosecution has failed to

establish the case against the appellant, cannot sustain.

This is more so, in view of the earlier referred admitted

and proved facts.

19. So far as another argument on behalf of the

appellant as to P.W. 7 Bhikulal and P.W. 11 Vijaykumar

being brothers of the deceased, are unworthy of reliance,

it must be said that their substantive evidence goes to

show the earlier conduct of the appellant/ accused so far

as the treatment given to deceased Seema. Moreover,

considering their substantive evidence coupled with

medical evidence of P.W, 10 Dr Arti Lokhande and P.W. 12

Dr Nehol Vora and cause of death of Seema, there is

nothing to take a different view than which is taken by

learned Additional Sessions Judge so far as the offences

for which the appellant is convicted and more

particularly, for the offence punishable under Section

498A of the Indian Penal Code. Needless to mention that

Section 498A IPC postulates cruelty and ill-treatment

practised on a woman by her husband or his relatives and

that has nothing to do with only demand of dowry. By

observing this, we have not lost sight of the fact that in

the explanation-1 to Section 498A of the Penal Code, one

of the aspects of cruelty is harassment of woman with a

view to coerce her or any person related to her to meet

demand for any property or valuable security etc.

20. Another argument advanced on behalf of the

appellant/accused as to P.W. 12 Dr Vora giving medical

certificate after 2 months and as such, his evidence is

not credible, does not gather much weight. After going

thrugh the contents of said medical certificate (exhibit

56) and on scrutiny of the substantive evidence of P.W. 12

Dr Vora, it cannot be said that there were any malafides

on the part of said medical officer. On this aspect, the

reasoning given by learned Additional Sessions Judge while

discarding the said argument on behalf of the appellant/

accused, sounds to reason and logic and is acceptable.

21. In view of the above explanation, we hold that

the appellant/accused had failed to give explanation as to

the injuries to the deceased and her consequential death

and that he had also failed to establish alibi, the

defence which he has specifically raised. On this aspect

of alibi which is propogated by Section 11 of the Evidence

Act, it must be said that the alibi is not an exception

(special or general) envisaged in the Penal Code or any

other law. It is only a rule of evidence recognised by

Section 11 of the Evidence Act that facts which are

inconsistent with the facts in issue, are relevant as has

been observed by the Apex Court in plethora of judgments

and mainly in State of Maharashtra v. Narsingrao Gangaram

reported in AIR 1984 SC 63 that a plea of alibi must be

proved with absolute certainty so as to completely exclude

the possibility of presence of the concerned at the place

of occurrence.

                                        
    22.      It

    above,that
                       is   
                            an    admitted

                  appellant/accused
                                                  position

                                                had    not
                                                                    as

                                                                  produced
                                                                            referred

                                                                                     any
                           

documentary/oral evidence to further his plea of alibi.

Plea of alibi is specifically raised before the Sessions

Court by filing written submission in furtherance of the

provisions of Section 313 Cr.P. C. Certain relevant

portion from the said statement is reproduced below :

.... I, the accused no. 1, am serving on the post of peon in the Janta Commercial Cooperative Bank. After serving at Karanja (Lad), I was transferred to Bombay. Thereafter, on 12.7.03 I was again

transferred to Karanja. When I was staying at Bombay, there was no reason for my wife to reside at Karanja. However, due to her stubborn nature, she resided at Karanja for

a period of about 1 years and I also allowed her to stay there itself because she was adamant as a result of which I bore the expenditure for both the places. Since my wife was stubborn and adamant by nature, I was facing financial problems. After I was transferred to Karanja, I was trying for my transfer to Akot which is near my village.

But, she was not at all agree with me and

therefore, she went to her brother for staying. Thereafter, I was trying for my transfer to Akot and in anticipation of

transfer to Akot I had telephoned and informed my wife to change house. On 1.8.03 I was present at Akola upto evening and after 7.00 o clock in the evening, I went to Akot where I was waiting for my transfer

order. At that time, as I received information at Akot from my mother about the ill- health of my wife, I came to Akola....

23. In view of the above submissions, according

to appellant/accused, late on that fateful night of 1

August 2003, he came back to his residence and saw the st

serious condition of his wife Seema. Apart from such

statement, there is nothing to substantiate his plea of

alibi. As such, we reiterate, as mentioned above, that

the accused had failed to establish his plea of alibi.

For the reasons detailed above, there is nothing to

entertain the present appeal and to view the case

differently than what is held by the Adhoc Additional

Sessions Judge, Akola.

24. In the result, present appeal has no merit and

is accordingly dismissed.

                 JUDGE.                                  JUDGE.



    Joshi