Tarun @ Hanif Tarapad Muzumdar vs The State Of Maharashtra
2012 Latest Caselaw 421 Bom

PPD

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                                                                 APEAL.743-05JUDGMENT.doc




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                
                      CRIMINAL APPELLATE JURISDICTION




                                                        
                          CRIMINAL APPEAL NO.743 OF 2005
                                 [THROUGH JAIL]

      Tarun @ Hanif Tarapad Muzumdar,               ]




                                                       
      Convict Prisoner No.C/4764,                   ]
      Nashik Road Central Prison,                   ]
      Nashik.                                       ]  ..Appellant




                                          
                                                    [Orig.Accused]
                 Versus
                            
      The State of Maharashtra                      ] ..Respondent
                           
                                         ....
      Ms. Sarojini Upadhyay, Advocate (appointed) for the Appellant.
      Mrs. S.V. Gajare-Dhumal, APP for the Respondent - State.
        


                                         ....
     



                               CORAM :   SMT. V. K. TAHILRAMANI, &  
                                          A. R.  JOSHI,  JJ. 

DATE : 30th NOVEMBER, 2012

JUDGMENT: [PER A. R. JOSHI, J.]

1. Heard rival arguments on this Criminal Appeal

preferred by the appellant/orig.accused challenging the

judgment and order of conviction dated 22 nd June, 2004 passed

by the IIIrd Additional Sessions Judge, Thane in Sessions Case

No.382 of 2003.

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2. By the impugned judgment and order, the

appellant/accused was convicted for the offence punishable

under Section 302 of IPC and was sentenced to suffer life

imprisonment and also to pay fine of Rs.500/-, in default to

suffer RI for one month.

3. The case of the prosecution, in nutshell, is as under :-

Initially after the marriage, the marital life between

appellant/accused and his wife victim Reena, was normal.

Thereafter for about 3 & ½ years, appellant/accused left the

house and went to his native place and performed second

marriage. Then again he returned to the house where victim

Reena i.e. his first wife was residing. She was not ready to accept

him and to cohabit with him. However, the relatives convinced

her that there was some settlement and as such

appellant/accused and victim Reena with their children started

staying together. During such stay, appellant/accused started

doubting the character of Reena. She was working as maid-

servant. Appellant/accused was suspecting that she had illicit

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relations with one Nazbul and on that count there used to be

quarrels between them.

4. According to the case of prosecution on the day of

incident i.e. on 14th July, 2003 on some pretext

appellant/accused took his wife Reena with him out of the

house. His daughter remained at the house. At night times, he

returned but without Reena accompanying him. PW-3 Sapana,

daughter of appellant/accused, then aged about 8 or 9 years

enquired about her mother. On this, appellant/accused

answered that she had gone for some work and would come

later. Thereafter on the next day morning, appellant/accused

left the house and did not turn up even to look after his children.

Dead body of victim Reena was noticed by the Police Patil of

village Belapur near railway track and reported the matter to the

police. Investigation was carried out by the CBD Police. The

spot where the dead body was found was visited. Initially

nobody identified the dead body. Inquest panchnama was

conducted. Later on, dead body was identified by one Reshma

(PW-2), sister of victim. This identification was done during the

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inquest panchnama and that time Reshma expressed doubt

against appellant/accused. Dead body of Reena was sent for

post-mortem examination. Statements of witnesses were

recorded. Search for the accused was conducted and he was

arrested after two days i.e. on 16 th July, 2003 from Mahad much

away from the place of residence at Belapur, Navi Mumbai.

Clothes of the accused were also seized. He was sent for medical

examination and for taking his biological samples like blood, nail

clippings etc..

5. During investigation, at the instance of

appellant/accused a knife and blood stained clothes were

recovered. Said knife was identified by one Rajiv Dande (PW-5)

as belonging to him - as at his place victim Reena was working

as maid-servant and appellant/accused was also visiting his

house in absence of said Rajiv Dande and his wife. Seized

articles were sent for chemical analysis.

6. On completion of investigation, charge-sheet was filed.

The matter was committed to the Court of Sessions and was tried

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before the 3rd Additional Sessions Judge, Thane during which 11

prosecution witnesses were examined. The trial ended in

conviction and same is challenged in present appeal.

7. Certain salient features of the case of prosecution and

the material brought before the trial Court are mentioned

hereunder in order to have proper perspective of the matter :

. The entire case of the prosecution is based on

circumstantial evidence :

Firstly, appellant/accused and victim last seen together on

the earlier night at their home by PW-3 Sapna (daughter of victim and appellant/accused). PW-8 Smt. Asha Shinde also

saw appellant/accused and victim together prior to finding

dead body of victim.

Secondly, appellant/accused was not available from the next day morning of the incident and even he did not bother

regarding his small children at home when dead body of Reena was found by the side of railway tracks at Belapur.

Thirdly, appellant/accused was arrested after two days

from far away place at Mahad, District - Raigad.

Fourthly, a knife was recovered at the instance of appellant/accused on 19th July, 2003 being Article-19.

Fifthly, blood stained shirt and pant were recovered at the

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instance of appellant/accused under panchnama in which PW-

10 one Sharad Pawar acted as a panch witness.

8. Another salient feature of the present case is that

though it is a case of custodial death i.e. the wife found dead

while staying in the matrimonial house along with her husband

and their children and when she was found dead away from the

house and dead body found near the railway track in the vicinity

of her house, there should have been some probable explanation

from appellant/accused as to how his wife died. Such

explanation is lacking in the present case and consequently it is a

strong circumstance against the accused and definitely

incriminating against him. Moreover, the conduct of

appellant/accused as to absconding from his house and not

bothering even for his tender age children is still another

mitigating circumstance against the accused.

9. Apart from the above, there is motive established by

the prosecution during the trial. Evidence of PW-4 one Mangala

indicates that there used to be quarrels between

appellant/accused and victim Reena, and the accused used to

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suspect her character and doubting that she had illicit relations

with one Nazbul. There is another substantive evidence of one

PW-7 Satam with whom for some time victim and also

appellant/accused were working as servants. With same witness

PW-7 Satam, one driver by name Nazbul was also working.

Apparently this is the driver Nazbul with whom allegedly there

were illicit relations of victim Reena as doubted by

appellant/accused.

10. So far as homicidal death of victim is concerned, the

substantive evidence of PW-9 Dr. Bhushan Jain is of much

importance. He has conducted postmortem on the dead body.

He found total 10 injuries on the dead body of the victim and all

the injuries were antemortem. For the sake of ready reference,

said injuries are described hereunder :-

i) Stab injury over left side of the chest medial to areola of

size 2.5 X 0.8 cm cavity deep directing obliquely upwards medially.

ii) stab injury over right side of the chest in a midaxillary line at a distance of 17 cm from suprasternal notch and 19 cm lateral to midline of size 2 x 0.8 cm cavity deep directing

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obliquely upwards medially.

iii) stab injury seen over right side of the abdomen in a subcostal region 24 cm from suprasternal notch and 7 cm but

to midline of size 2 x 1 cm. cavity deep directing obliquely upwards medially.

iv) stab injury seen over right side of the abdomen 1 cm

below and 16 cm lateral to midline of size 2 x 0.8 cm cavity deep directing obliquely upwards towards midline.

v) stab injury seen over right side of the back at a distance of 13 cms from spine (C7) and 6 cms lateral to midline of 2 x

0.8 cms, 4 cm deep directing obliquely upwards laterally.

vi) stab injury seen over right side of the back at a distance

of 17 cm from C7 spine and 4 cm lateral to midline of size 2 x 0.8 cm cavity deep directing obliquely upwards and medially.

vii) stab injury seen over right side of the back at a distance

22 cms from C7 spine and 2.5 cm lateral to midline of size 2 x

0.8 cm cavity deep, directing obliquely upwards and laterally.

viii) stab injury seen over right side of the back at a distance of 29 cm from C7 spine and 2 cm lateral to midline of size 2 x

0.8 cm directing obliquely upwards medially penetrating liver and exit through anterior abdominal wall in a epigastric region in a midline of size 1 x 0.3 cm as a exit wound situated at the

distance of 27 cm from sternal notch.

ix) stab injury seen over left side of the back at a distance of 24 cms from C7 spine and 11 cm. lateral to midline of size 2 x 0.8 cm cavity deep directing obliquely upwards medially.

x) stab injury over left side of the back at a distance of 20

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cm from C-7 spine at 13 cm from midline of size 2 X 0.8 cms

cavity deep directing obliquely upwards medially.

. All the injuries are actively bleeding, margins sharp and

one angle is acute and all the injuries are ante-mortem in nature.

All the injuries were fatal.

11. Considering the effect of the above referred material

available as against appellant/accused, there was only argument

advanced on behalf of appellant/accused is that the

circumstance on the aspect of last seen together is not clinching

and cannot link appellant/accused with the offence of murder. It

is further submitted that semi-digested food was found in the

stomach of the dead body and accordingly much is argued on

behalf of appellant/accused that the substantive evidence of PW-

3 & PW-8 that they saw victim and appellant/accused together

in the evening of the earlier day, is doubtful. However, on this

aspect nothing is brought before us in order to doubt the

substantive evidence of PW-3 & PW-8. At the cost of repetition,

it must be mentioned that PW-3 is a young daughter of victim

and appellant/accused. At the relevant time, she was about 8 or

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9 years of age and she had seen her father (appellant/accused)

taking away her mother (victim), and appellant alone coming

late at night and from next day morning absconding. Apparently

from the same time the whereabouts of the victim were not

found and only on the next day morning her dead body was

found in the locality having severe injuries, as detailed above.

Again on this aspect, the substantive evidence of PW-8 is of much

importance. Said PW-8 Asha Shinde is a social worker of the

area and she was knowing the deceased Reena and

appellant/accused as she used to counsel the couple in the mater

of their dispute and mainly in the matter of appellant/accused

suspecting the character of his wife. On 14 th July, 2003 in the

evening PW-8 Asha Shinde sitting outside her house and that

time she noticed at about 7:30 p.m. or so that appellant/accused

and his wife Reena were passing away from the road. She did

not enquire with them as there was no occasion to talk to them

and on the next day morning dead body of Reena was found and

appellant/accused was initially seen in front of his house at 8:00

a.m. and since then was found missing.

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12. Considering the overwhelming material produced by

the prosecution in order to establish the guilt of

appellant/accused in the matter which is based on circumstantial

evidence, we are of the considered view that there is nothing to

interfere with the judgment and order of conviction, more so

when there is no any probable explanation on the conduct of

appellant/accused missing from his house and not giving any

explanation on the cause of death of his wife. In the result, there

is no merit in the present appeal and the same is accordingly

dismissed.

13. This judgment and order be communicated to the

appellant who is presently lodged in jail, through concerned jail

authorities.

(A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)

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