Santosh Haridas Bhandwalkar vs Through Mahabaleshwar
2012 Latest Caselaw 470 Bom

S

                                      1                                   app234.06

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION




                                                                                   
                    CRIMINAL APPEAL NO.234 OF 2006




                                                           
     Santosh Haridas Bhandwalkar
     Aged 25 years, Occupation Service,
     Residing at Survey No.2/7,
     Hingne Khurd, Sinhagad Road,
     Pune.                                         .. Appellant.




                                                          
           Vs.

     State of Maharashtra




                                              
     Through Mahabaleshwar
     Police Station,
     Dist.Satara                 ig                .. Respondent.


     Mr.A.M.Joshi for the appellant.
                               
     Mr.S.R.Shinde APP for the State.


                                     CORAM : V. M. KANADE &
                                             P. D. KODE, JJ.
            


                          RESERVED ON          : 31ST JULY, 2012.
         



                         PRONOUNED ON : 10TH DECEMBER, 2012
   




     JUDGMENT (PER P.D. KODE, J.)

1. By the present appeal, the appellant has challenged the

judgment, order of conviction and sentence passed on 23rd

December, 2005 by Addl.Sessions Judge, Satara, convicting him for

murdering his wife - Dhanashree (hereinafter referred as

"deceased"). By the said judgment he was sentenced to suffer

imprisonment for life and to pay fine of Rs.5,000/- and in default of

payment of fine to suffer further R.I. for six months.

2 app234.06

2. The said prosecution has emerged out of chargesheet submitted

by PI Jagdale of Mahabaleshwar police station on completion of

investigation of C.R.No.22 of 2004 registered with said police station

upon complaint Exhibit-65 filed by the appellant reporting

commission of murder of his wife Dhanashree on 27th August, 2004

at about 6.00 hours or thereabout in room No.206 of Hotel Sai

Residency at Mahabaleshwar.

3.

According to the prosecution the appellant alongwith his father

Haridas, mother - Parvati and wife - Dhanashree was residing at

Hingne Khurd, Sinhagad Road, Pune and was working for gain in

Yantra Shilp Company. He had married with Dhanashree, daughter of

Namdev Navalkar resident of Dayadhi Phata, Sinhagad Road, Pune on

28th May, 2003. Dhanashree is said to have behaved well for a

period of eight months after the marriage while residing at the house

of appellant. However, thereafter she started desisting to do

household work and work asked by parents of the appellant and was

answering evasively to them. Due to ensuing of quarrels in between

Dhanashree and appellant since January 2004 she started residing

with her parents and did not return to the house of appellant. Due to

receipt of phone call from Dhanashree on 25th August, 2004 calling

the appellant at Swargate; the appellant went at the said place and

met her. Dhanashree told him that material was to be fetched from

Pirangut. The appellant told her that same could be fetched

3 app234.06

tomorrow by going to said place and after leaving Dhanashree at the

house of her parents, returned to his residence. On 26th August,

2004 at about 10.00 hours the appellant went to Dhayadhi Phata by

his motor-cycle bearing No.MH-12-CE-4766. The appellant talked

with Dhanashree for going to trip at Mahabaleshwar. Thereafter both

of them went to Mahabaleshwar on motor-cycle at 15.00 hours. Both

of them stayed at room no.206 of Sai Residency hotel. Both of them

awoke at about 6.00 hours. The quarrel ensued in between them

upon the appellant asking her as to why she had suddenly called him

at Pune and herself questioning him the reason for entertaining

suspicion about her. The appellant thereafter went to police station

and after narrating the aforesaid matters and further events occurred

lodged the complaint Exhibit-65 regarding commission of murder of

Dhanashree in room of hotel. P.W.11 - ASI Mane then on duty at the

said police station after recording the said complaint registered the

crime in question against the appellant for the murder of

Dhanashree. The initial investigation in the said crime was effected

by P.W.11 and thereafter PI Shinde and thereafter by PI Jagdale, who

ultimately chargesheeted the appellant by submitting chargesheet in

the Court of J.M.F.C. Wai. The case registered thereon involving

offence triable by the Court of Sessions was duly committed to the

Sessions Court at Pune.

4. At the trial the appellant pleaded not guilty to the charge

framed for commission of murder of his wife. The prosecution

4 app234.06

examined in all 11 witnesses at the said trial. In addition to witness

so far referred the prosecution examined P.W.2 - Santosh

Nawalkar, brother of deceased regarding appellant possessing

motive for committing the crime in question, regarding relations in

between couple, the appellant having pick up deceased from her

house on 25th August, 2004, P.W.4 - Mohan Chavan, manager of

hotel Sai Residency regarding stay of the appellant and his wife in

said hotel since 25.8.2004, extra judicial confession made by the

appellant to him on 26.8.2004 at 10.00 hours of having murdered his

wife,

having asked him about location of police station at

Mahabaleshwar and having been to the police station and returned

alongwith the police and events happened thereafter. P.W.8 -

Dr.Jadhav, regarding post mortem of corpse of deceased performed

by him on 27.8.2004 in between 14.00 hours to 15.30 hours and

cause of death being "due to asphexia due to throttling"; advance

cause of death certificate given by him to the police, post mortem

note Exhibit-39 prepared by him and so also about examination of

appellant made by him on the same day, the injuries noted by him on

his person and replies given by him to query letters sent by police;

P.W.9 - Kalange, photographer regarding photographs of corpse

taken by him and panchas P.W.1 - Hasham Warunkar panch for

inquest panchnama, P.W.3 - Hanumant Parte, panch regarding

seizure of clothes of deceased brought by police constable after the

post mortem i.e. banyan and Kurta under panchnama. P.W.5 - Anil

Kelgane, panch regarding seizure of the clothes on the person of the

5 app234.06

appellant i.e. ash colour pant and black colour full shirt with checks

with shirt pocket in torn condition and two buttons of the shirt

missing and having noticed injury to right hand ring finger of the

appellant under panchnama Exhibit-30.; Panch P.W.10 - Mahmad

Unwala, regarding scene of offence panchnama and seizure of the

articles from the room in the hotel Sai Residency P.W.6 - Avinash

Dere, police constable regarding taking muddemal articles to C.A. on

30th August, 2004 under forwarding letter. In addition to oral

testimony of the said witness the prosecution also relied upon

documentary evidence which came to be prepared during the course

of investigation.

5. The defence of the appellant was that of false implication.

Though the appellant admitted that he had married Dhanashree, he

denied the prosecution case of himself entertaining suspicion about

her or their being quarrels in between them on the said count. The

appellant during his examination under section 313 of Code of

Criminal Procedure by and large claimed that the evidence adduced

by the prosecution was false. During the said examination the

appellant claimed that due to political pressure the prosecution

witnesses have deposed falsely against him. The appellant did not

wish to examine himself on oath or to lead evidence of any defence

witnesses. The appellant claimed of having not committed any offence

and submitted written say Exhibit-67.

6 app234.06

6. The appellant during the said say claimed to be innocent and

claimed to have very cordial relationship with his wife. He denied of

having committed murder of his wife. He claimed that somebody has

murdered his wife in the morning when he was not in the room. He

claimed that when he returned from outside he found that his wife

was lying dead on the bed. Thereafter he rushed to counter of the

hotel and found that one room boy and another person were secretly

talking with each other. He claimed that thereafter manager came

and questioned him about death of his wife ensued during his

absence. He claimed that thereon quarrel ensued between persons

from the hotel. The said persons did not reply to his query regarding

location of the police station and they desisted him from going away.

He further claimed that as the event of his wife was murdered during

his absence when he had left the room in the hotel was defamatory

for hotel, hotel manager P.W.4 and owner Kisan Shinde by using

political pressure made him scapegoat and initiated false case

against him. He claimed that though he was shouting about said

reality the police did not take any cognizance He thus claimed that he

has not committed any offence and he was completely innocent.

7. Mr.A.M.Joshi, learned counsel for the appellant meticulously

taking us through record of the case assailed the judgment of trial

Court by stating that there was no eye witness to crime in question

and the finding of guilt arrived by the trial Court on basis of

circumstantial evidence comprised of various circumstances said to

7 app234.06

have been established by the prosecution. It was urged that either the

said circumstances were not duly established and/or evidence

pertaining to concerned circumstance is of very much feeble

character. He also contended that as claimed by the appellant the

police had not given attention to matters regarding crime pointed out

by him and had not properly investigated the matter due to political

pressure of the manager/owner of hotel and have falsely implicated

the applicant for saving name of their hotel being ruined by

occurrence of such incident in the hotel. It was further urged that

even if the circumstance said to have been established by the

prosecution are taken together then also complete chain is not

formed leading to sole inference of guilt of the appellant as the same

within themselves leaves probability of culprit being somebody else

and having committed the crime when the appellant had been out of

the hotel in the morning. He thus prayed for quashing and setting

aside the order of conviction and sentence passed by the trial Court

and acquitting the appellant by allowing the appeal or atleast giving

benefit of doubt to the appellant in view of possibility culprit being

other than the appellant being not altogether ruled out.

8. On the contrary Mr.Shinde, learned A.P.P. supported the

judgment of the trial Court. He urged that the trial Court has rightly

carved out the circumstances from the prosecution evidence and

came to conclusion that circumstances forms complete chain leading

to sole inference of guilt of the appellant. He urged that even though

8 app234.06

it is true that hotel manager P.W.4 was not close relative of the

appellant the same by itself would not warrant discarding his

evidence of the appellant having made extra judicial confession to

him after taking into consideration the situation in which the same

came to be made by the appellant. It was urged that hardly anything

surfaced at trial for justifying the say of appellant that P.W.4

alongwith owner of the hotel has falsely implicated the applicant. It

was urged that there is no substance in the submission canvassed

that evidence pertaining to the motive adduced by the prosecution

through evidence of P.W.2 is feeble or not convincing. It was urged

that considering evidence of P.W.2 the same leads to conclusion that

the appellant having taken his wife to Mahabaleshwar. It was urged

that involvement of the appellant in incident in question is supported

by circumstance of injuries found upon his person as revealed from

the evidence. It was urged that hardly any material has surfaced on

record either by way of admission elicited during the cross

examination or otherwise supporting claim of the appellant that his

wife was killed by somebody else in his absence when he had been

out of hotel. It was urged that there is absolutely no evidence

surfaced that on relevant day in morning the appellant had been out

of said hotel. Learned A.P.P. thus contended that there are no merits

in the appeal preferred and same deserves to be dismissed.

9. We have given thoughtful consideration to the submissions

advanced by rival parties and carefully perused the record and

9 app234.06

judgment appealed for ascertaining s contrarycontrary ubstance from

the same.

10. In the said process considering first circumstance relied by

prosecution the finding reached by the trial Court of Dhanashree,

wife of the appellant having met with homicidal death. The bare

perusal of evidence of P.W.8 Dr.Jadhav, who had performed autopsy on

her corpse reveals that during the same he has noticed following

three ante mortem injuries on person of Dhanashree:

"1. Multiple Nail scratches, cresentic curved, abrasion

10 in number, irregular, present on anterior part of neck on either side of size ½ - ¾ cm x ¼ cm each, red in colour.

2. Contusion on left side of neck above thyroid cartila etransversly slight oblique of size 4 cm x 1 cm red in

colour.

3. Contusion on right side of neck above thyroid

cartilage slightly obliquely of size 4 ½ cm x 1 cm red in colour. Haemotoma on left side 2 cm x 1 cm beneath above injury."

He had given cause of said injuries was due to throttling thumb and

finger pressure and age of within 24 hours, from the time of

performing post mortem examination i.e. within 24 hours prior to

1.30 pm on 27.8.2004. He was candid in admitting his mistake in

recording date of performing post mortem as 21st instead of 27th

April in post mortem notes. He has given cause of death of

10 app234.06

Dhanashree as asphyxia due to throttling. His evidence is found well

corroborated by post mortem notice Exhibit-39 of which correctness

was vouched by him. He had further deposed of having examined

appellant on the same date and then having found the following

injuries on his person.

1. Rectangular bite mark, three in number, on right

ring finger, distal phalynx palmer aspect of size ½ cm x ½ cm each, red in colour, tender was present.

2. Laceration on right finger, distal phylanx, palmer

aspect, 1 cm x ½ cm. scaling of skin, tenderness present.

3. Contusion at left side of abdomen 2 cm. from left anterior suprior iliec spine 5 cm. x 1 cm., red in colour.

He has further deposed that out of said injuries, injury nos.1

and 2 were due to human bite and injury no.3 was caused by hard

and blunt object and the age of said injuries was within 24 hours.

Now presently leaving aside significance of injuries found by him

upon the person of appellant, the scrutiny of his evidence does not

show any significant material elicited during the cross examination

by defence except that he had not found any fracture on hyoid bone

during post mortem and an attempt made to bring on record that

somewhat similar symptoms are also found in case of poisoning and

fact of viscera have not been preserved. Now apart from the said

evidence of P.W.8, after taking into consideration the evidence of

P.W.1 pertaining to inquest panchnama and that of P.W.10 regarding

scene of offence panchnama and evidence of Investigating Officer

11 app234.06

P.W.11 and also evidence of P.W.4 regarding circumstances in which

body was found the same leads to not other conclusion of deceased

Dhanashree having met with homicidal death in room no.206 of Hotel

Sai Residency. It is true that P.W.8 during cross examination

admitted some similar symptoms as noticed by him could be also

found in case of poisoninig and/or vicera in the instant case has not

been preserved, as pointed out by learned counsel for the applicant.

However, after careful scrutiny of evidence of P.W.8 the same does not

appear to be significant in the facts and circumstances of the present

case as it is not case of anybody of deceased having met death due to

poisoning. Needless to add that even in such contingency also and

defence of the appellant being not of her death being caused due to

consumption of poison the said aspect clearly appears to be

redundant in the present case. Thus, though tried to be assailed by

learned counsel for the appellant we do not find any merit in the

submission that by the said evidence the prosecution cannot be said

to have established deceased Dhanashree having met with homicidal

death.

11. Now considering the second circumstance of the appellant

possessing motive for committing murder of his wife, the evidence of

P.W.2 brother of i.e. deceased is self sufficient to establish said

circumstance. After careful perusal of evidence of P.W.2 regarding

strained relationship prevailing in between couple, the return of

deceased to house of parents and having told the appellant that she

12 app234.06

will return to home only after he starts working and that the

appellant was entertaining suspicion upon her character etc is found

unshattered during the cross examination. Indeed true the scrutiny

reveals that the fact of the appellant having picked up Dhanashree

from house of P.W.2 for going to Mahabaleshwar and at that time

P.W.2 being at the house being in nature of omission is brought on

record. However, since it is settled legal position that only the

omission amounting to contradiction being material, no undue

importance can be given to the said omission. Learned counsel for the

appellant in the said basis tried to urge that the said improvement

made by P.W.2 at trial reveals anxiety of said interested witness to

support prosecution by making improvement at trial that he was

present at the time of appellant and Dhanashree leaving for

Mahabaleshwar from his house. He further urged that if P.W.2, who is

admittedly brother of deceased is capable of making such

improvement then his entire evidence is liable to be discarded. We

do not find any substance in the submission as we find that same

cannot be considered to be in nature of significant deliberate

improvement made by P.W.2 for any useful purpose. Such conclusion

is apparent as even there was no supression of the relevant aspect on

part of the appellant of himself having fetched Dhanashree from the

house of her parents i.e. P.W.2 while lodging FIR.

12. Similarly, we are also not impressed by further submission

canvassed by learned counsel for the appellant that evidence of P.W.2

13 app234.06

even accepted as it is does not reveal that the appellant has sufficient

motive to commit heinous crime of murder of his wife. It was urged

that occurrence of quarrels in between husband and wife in present

days and/or themselves separating has become common

phenomena. Even accepting the said submission still we are unable to

accept his further submission that evidence of P.W.2 does not reveal

the appellant possessing motive for commission of such crime. Such

conclusion is obvious as evidence of P.W.2 that appellant was

suspecting character of Dhanashree has remained unshattered after

cross examination.

Similarly, considering peculiar relationship

between husband and wife it is difficult to say that such facet would

not have been sufficient for affording motive to the appellant for

committing such crime. It cannot be ignored that suspicion about

character of women has been motive for feuds since time

immemorial. Thus after careful scrutiny of evidence of P.W.2 we are

unable to find any fault with conclusion reached by the trial Court

that the prosecution has duly established the second circumstance of

appellant possessing sufficient motive for commission of the crime.

13. Now taking up third circumstance i.e. deceased was last seen

in company of the appellant and so also consequential fourth

circumstance of the appellant having opportunity to commit crime

and fifth circumstance that appellant had made extra judicial

confession to P.W.4 about his guilt, evidence of P.W.4 manager

appears to be of immense importance. Before assessing evidence of

14 app234.06

P.W.4 it will be proper to say that though we find substance in the

submission of learned counsel for the appellant that as deceased was

wife of the appellant and he had taken her to Mahabaleshwar and

they stayed in room the circumstance of deceased being last seen in

company of the appellant appears to be of innocuous nature, still

considering the peculiar facts and circumstances which reveals that

on relevant day in evening after reaching Mahabaleshwar and initially

occupying room no.207 and thereafter occupying room no.206 and

thereafter deceased being not seen alive leads significance to said

circumstance in view of no evidence having surfaced at the trial

about anybody having entered in room no.206 during morning either

in absence of the appellant as claimed by him or even otherwise.

Learned counsel for the appellant in the said context by taking us

through evidence of P.W.4 canvassed that his evidence reveals that

one Dalvi and Sakpal were working in the said hotel as hotel boys and

the prosecution had failed to examine said Dalvi to throw light

regarding the events occurred in hotel in night after the appellant

and his wife has occupied room no.206 and P.W.4 left hotel and until

P.W.4 attended the same on next day in the morning at about 8.30 to

9 am. It was canvassed that examination of said material witnesses

atleast of Dalvi was necessary in view of specific defence taken by

the appellant at the trial of having left room in morning and incident

having occurred prior to his return to said room. It was urged that

the fact of appellant having left said room in morning is also

probabalised by the answer given by P.W.4 during his cross

15 app234.06

examination that there was no facility of hotel/restaurant in the said

hotel. It was urged that in such eventuality it was not unlikely of the

appellant leaving the room for such purpose i.e. for having tea or

breakfast etc.

14. After careful consideration of evidence of P.W.4 we are unable to

find any substance in the said submission after considering evidence

of P.W.4 as the same unfolds relevant facets of approaching the said

couple to said hotel at about 4 pm on 26.8.2004 initially occupying

room no.207 and later on room 206. It will be significant to note that

evidence of P.W.4 reveal that room no.206 was the only room on

second floor which was occupied by the passengers on second floor.

Further part of deposition P.W.4 reveals the manner in which in

morning the appellant came to counter and told him that he had

beaten his wife and then P.W.4 having noticed that pocket of his shirt

was in torn condition and two buttons were detached. It is significant

to note that apart from the said aspect having remained to be

shattered, after the cross examination, the evidence of P.W.4 does

not reveal that at that time the appellant had returned from outside

to the hotel. Needless to add that careful consideration of entire

deposition of P.W.4 also does not reveal that any such facet had

surfaced on record during his deposition. On the contrary the fact of

appellant having visited counter is found corroborated by FIR lodged

by him. The same adversely affects defence tried to have been set up

by the appellant that on the said day he had been out of said room at

16 app234.06

6 am. The eventuality as tried to be canvassed by learned counsel for

the appellant may be possibility but hardly any material has surfaced

on record probabilising the same to be reality i.e. appellant probably

having gone out for tea, breakfast etc. It will not be out of place to

state that said evidence of P.W.4 is also fortified by evidence of P.W.2

in which he has claimed that said black shirt which is found torn was

seized by police was his shirt and his sister had given to the

appellant. The prosecution through evidence of P.W.8 who had

examined appellant after his arrest has duly established the appellant

having then sustained injury about which reference has been already

made hereinabove. An attempt was made to explain presence of such

injuries being due to appellant sustaining them when Baburao Dalvi

has pushed door of room. We have also duly taken into consideration

such suggestion given to P.W.4 on behalf of appellant in consonance

with defence taken by him. However, after scrutiny we do not find any

material elicited in support of his defence. It needs no saying that

suggestion denied by themselves cannot be considered as material

evidence. Similarly the said evidence of P.W.8 establishing fresh injury

upon person of appellant also corroborates claim of P.W.4 of having

noticed injury to the fingers of appellant.

15. In addition to the appellant having reported to P.W.4 that he

had beaten the wife as narrated earlier, the evidence of P.W.4 further

reveals that the appellant who had been to police station had

returned after one and half hour alongwith 5 to 6 policemen and

17 app234.06

taken them to room no.206 and then P.W.4 also had been to room

no.206 alongwith them and in the said room he had seen dead body

of the wife of the appellant and other situation noticed by him.

Significantly enough P.W.4 further deposed that then the appellant

stated before him and police, that he had killed his wife by pressing

neck. After close scrutiny of evidence of P.W.4 we do not find that

claim of P.W.4 of appellant having made such statement on both

occasions has been shattered in any manner by the cross

examination. It needs no saying that the said statements made by the

appellant considered

in proper perspective reveals the same

amounting to extra judicial confession made by the appellant about

his guilt. It is indeed true that the appellant having come across P.W.4

for the first time when he had been to said hotel he cannot be said to

be person of close acquaintance of the appellant. However, in our

opinion the same cannot be considered as ground for discarding the

claim of P.W.4 of the appellant having made such extra judicial

confession. It is indeed true that experience reveals that extra

judicial confessions are generally made by culprits to the person of

close acquaintance for disburdening themselves for ghastly act

occurred at their hands. However, there also exists cases in which

such confessions are found to be made by the culprits to the persons

with whom they have immediately came across after commission of

crime and that such persons being not close associates and

sometimes even the strangers. The present case apparently appears

to be of such nature. Such conclusion is inevitable after considering

18 app234.06

sequence of events which had occurred and the place about which

enquiry was made by the appellant with P.W.4 about location of police

station. At any rate there being no material on record for coming to

conclusion that such claim staked by P.W.4 being doubtful or any

plausible reason for P.W.4 for staking such false claim, the

submission to such effect advanced by learned counsel for the

appellant will not deserve any credence.

16. In the same context the scrutiny of evidence of P.W.4 reveals

that though appellant had suggested to P.W.4 that after he had

informed him about expiry of his wife P.W.4 had left the room

alongwith Dalvi and verified about death of wife and at that time

exchange of words had taken place between P.W.4 and Baburao Dalvi

or that P.W.4 had enquired with him as to who had been into said

room. P.W.4 was further suggested that he had then beaten Baburao

Dalvi and caused injury to his right hand. P.W.4 was further

suggested that at that time the appellant had told him that he will

file complaint in the police station about having killed his wife.

Similarly, during further phase of cross examination P.W.4 was

suggested that as appellant was not ready to compromise the matter

he had called owner of the hotel. Similarly, P.W.4 was given

suggestion upon the line of defence of the appellant stated earlier

and particularly about the reason for implicating him in the case and

political pressure being used by owner of the hotel for filing false

case etc. Without enlisting each of such suggestion made by P.W.4 it

19 app234.06

can be safely said that all said suggestion were denied by P.W.4 the

close scrutiny does not reveal any concrete admission elicited during

the cross examination of P.W.4 supporting defence of the appellant

except himself having admitted owner of the hotel was then present

at the hotel at the relevant time. Though learned counsel for the

appellant tried to canvass that the same is indicator of the events as

claimed by appellant having happen in the said hotel. In absence of

any support for such claim staked by appellant we are unable to

accept the said submission for simple reason that presence of owner

at the said hotel cannot be said to be unnatural circumstance.

Similarly evidence of P.W.4 that he had served in said hotel until

5.9.2004 i.e. not at the time of trial also exposes falsity of defence of

P.W.4 having supported prosecution at the behest of owner of hotel.

17. As net result of the aforesaid discussion regarding evidence of

P.W.4 it can be safely said that by the same the prosecution had duly

established all the circumstances under discussion and particularly

of the appellant having made extra judicial confession to him. The

fact of the pocket of shirt of appellant being torn and appellant

having sustained injury to his fingers, being no evidence of the

appellant on the said date having returned from outside hotel

surfaced at trial definitely corroborates evidence of P.W.4 and points

towards appellant being person involved in incident which had

occurred in the said room and one which has resulted in death of his

wife.

20 app234.06

18. Learned counsel for the appellant by emphasising the fact of

the appellant having gone to police station tried to canvass that the

said act of the appellant is indicative that appellant is innocent

person and events having occurred as claimed by him i.e. for mostly

his wife being killed during his absence. The submission though

attractive does not stand to the reason in absence of any support for

the same. Needless to add, merely because the appellant had been

to police cannot lead to such inference. Thus, considering all facets

of

evidence of P.W.4 we are unable to accept the submission

canvassed that his evidence does not inspire confidence or he had

falsely implicated the appellant at behest of the owner of hotel. We

are also unable to accept the criticism advanced that evidence of

P.W.4 reveals that he was person of doubtful character and that there

exists no corroboration to his evidence. Learned counsel for the

appellant by pointing evidence of panch P.W.5 for arrest and evidence

of I.O. tried to canvass that non finding of three buttons which

missing from shirt of appellant at the scene of offence is

circumstance supporting defence and probabilising defence of the

appellant. It is indeed true that perusal of said evidence reveals that

such buttons were not found in room no.206, however, considering

the size of said buttons the time after which police had been to said

hotel and precise time of the incident being not on record no

inference as suggested can be drawn only upon said circumstance.

Needless to add that evidence has also not surfaced to the effect that

21 app234.06

such button were found nearby counter at which fight had taken

place in between the appellant and P.W.4.

19. Having considered main material evidence against the

appellant and findings/conclusions drawn by the trial Court upon the

same we do not find any error being committed by the trial Court

either in assessing said evidence and coming to the conclusion i.e. the

prosecution having established circumstances referred hereinabove

and all said circumstances within themselves forming chain leading

to inference about guilt of the appellant. At the cost of repetition it

can be said that in absence of any evidence surfaced on record of the

appellant at the relevant time having left the room in manner as

claimed by him and during his absence his wife having expired we are

unable to agree with the submissions of learned counsel for the

appellant that there exists room in prosecution evidence for inferring

that the appellant was not in the room at the relevant time and during

his absence incident had occurred. Even assuming that the appellant

had been to P.W.4 from place outside the hotel still any third person

having committed such incident during his absence clearly appears

to be possibility and not probability. The same is also supported by

evidence of P.W.4 that no other room on the second floor was

occupied by any passenger. In the light of said evidence even if it is

assumed that if the appellant has left said room then also it would be

highly improbable that room occupied by his wife would remain

open giving opportunity to third person for commission of such

22 app234.06

offence.

20. Learned counsel for the appellant urged that prosecution

having not examined hotel boys Baburao Dalvi or Sakpal the adverse

inference deserves to be drawn against prosecution for suppressing

material evidence at the trial. The true test for determining witness

being material witness or otherwise being not whether he had given

evidence in support of prosecution or defence but being that whether

he would have unfolded the facet of prosecution case which had

remained to be unfolded during the trial, we do not find any force in

the said submission. Such inference is inevitable as even considering

defence of the appellant same does not make reasonably clear the

facet which had remained to be unfolded and would have been

unfolded by said witnesses hence merely because certain suggestion

were made on behalf of the appellant cannot force the prosecution to

examine such witness.

21. Learned counsel for the appellant relied upon decision in the

case of State Vs. M. Dahia reported in (2011) 3 Supreme Court

Cases Page 109 urged that ratio of the said decision would be

applicable to the facts in the present case and upon the same lines

the appellant also deserves to be given benefit. After careful

consideration of the facts and circumstances invovled in the said case

we are unable to accept the said submission because facts and

circumstances therein being different i.e. in the said case wife had

left the room of hotel and her dead body was found at place

23 app234.06

200 mtrs. Away from the hotel the same is case even regarding

decision in case of Manjy M Vs. State of Karnataka 2007 (1) SCC 160

upon which reliance was placed. The circumstances established in

the said case being different, the appellant is not entitled for any

advantage of the said decision.

22. In the light of discussion made hereinabove we are unable to

find any infirmity either in the approach of trial Court while assessing

prosecution evidence which is of circumstantial in nature or

charting circumstances duly established by said evidence and coming

to the conclusion about guilt of the appellant. As observed earlier the

circumstances established by the prosecution taken together forms

formidable chain leading to sole inference of guilt of appellant for

commission of murder of his wife. In view of the same we are unable

to find any fault with the trial Court reaching to such finding and

convicting and sentencing the appellant for the same. Thus, we do

not find any merit in the appeal preferred and dismiss the same.

    (P. D. KODE, J.)                                  (V. M. KANADE, J.)