Bombay High Court
Mohammad Parvez Pyarejan Shaikh vs The State Of Maharashtra on 29 October, 2013
Bench: V.K. Tahilramani, P.D. Kode
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.728 OF 2008
1. Mohammad Parvez Pyarejan Shaikh,
Male, Age: 27 years,
Occupation : Business,
2. Shabana Pyarejan Shaikh,
Female, Age : 26 years,
Occupation Housewife,
3. Khairunisa Pyoarejan Shaikh,
Female, aged 60 years,
Occupation: Housewife,
( All residing at Room No.358,
Punjabi Chawl, Prem Nagar,
Irla S.V. Road,
Vile Parle ( West),
Mumbai 400 056
At present lodged in Yerwada
Central Prison, Pune. ..Appellants.
(Original Accused Nos. 1
to 3 )
versus
The State of Maharashtra
(through Juhu Police Station,
C.R. No.361 of 2006) ..Respondent.
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Mr. Shirish Gupte, Learned Senior Advocate with Ms. Sharmila Kaushik,
Learned Advocate for the Appellants.
Mr. P.S. Hingorani, Learned. A.P.P. for the Respondent-State.
.........
CORAM : SMT. V.K.TAHILRAMANI &
P.D. KODE, JJ.
JUDGMENT RESERVED ON : 19th JUNE, 2013.
JUDGMENT PRONOUNCED ON : 29th OCTOBER, 2013.
JUDGMENT (PER : P.D. KODE, J.)
1. The appeal is directed against the judgment and order of
conviction/sentence passed by the learned 4th Ad-hoc Additional
Sessions Judge, Sewree Mumbai on 25th June, 2008 in Sessions
Case No.320 of 2007. By said judgment, the appellants original
accused nos.1 to 3, respectively husband, unmarried sister-in-law and
mother-in-law of victim one Nagma @ Najma Parvez Shaikh, were
convicted for in furtherance of common intention having committed
murder of said Nagma @ Najma on 4th December, 2006 in midnight in
between 11.35 and 12 and each of them were sentenced to suffer
imprisonment for life and to pay a fine of Rs.1000/- and in default to
suffer R.I. for 1 month each.
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2. Nagma @ Najma (hereinafter referred as deceased) was
second daughter of PW1 Mussa and PW7 Mehrunnisa Mussa Shaikh.
The couple had four more children i.e. eldest married daughter
Reshma, unmarried daughters PW3 Tabassum and another and son
PW4 Aslam. PW1 was working as a driver while PW4 was working in
mobile repair shop.
2.1. Nagma had married appellant no.1 distant relative of PW1,
on 6th February, 2005. Since then she was residing at Punjabi Chawl,
Vile Parle (West) Bombay along with him, her father-in-law, mother-in-
law appellant no.3 and unmarried sister-in-law appellant no.2; while
Farjana Samiullakhan, her married sister-in-law- acquitted original
accused no.4, was residing at her matrimonial house at Irla Vile Parle.
Nagma had 11 months female child i.e. 'Heer' out of wedlock. The
family of the appellant was carrying business of gold and silver plating
on metal articles.
2.2. According to the prosecution, appellant no.3 within two
months of the marriage, commenced insulting and cursing deceased on
the count of herself being of ill-fate. Appellant no.2 also supported
mother in abusing and insulting deceased on such count. Appellant no.1
was habituated to liquor. He used to abuse and some times used to
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assault deceased after consuming liquor. She used to complain to PW1
about it. However, he used to pacify her by telling that everything would
be smooth by passage of time and returning her to matrimonial house.
2.3. PW1 used to tell appellant no.1 that in event of any difficulty,
they should appraise him instead of harassing deceased. Accordingly,
appellant no.1 sought help from PW1 and had taken an amount of Rs.
45,000/- for business on 31.05.2005 by telling of making him partner
and returning said amount within short time. Appellant no.1 neither gave
any profit of business nor returned amount to PW1 in spite of demand
made by PW1 on phone and meeting him. On every occasion he
dodged making payment by giving some excuse. Appellant no.1
increased torturing deceased after PW1 asked for return of money. The
deceased used to tell on phone about it to her mother PW7 and PW3
and another sister. As financial condition of PW1 was not affluent,
deceased used to ask appellant no.1 for refunding amount. However,
upon deceased opening topic of refund, appellants used to abuse and
quarrel with her.
2.4. According to the prosecution, in fateful night in between 4th
and 5th December, 2006 at about 12.00 to 12.15 midnight, appellant no.1
went to house of neighbours PW6 Gagan Kohli and PW5 Rani
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Sharma and told that his wife has consumed some poison. As they
went to his house, they found that deceased was lying unconscious in
kitchen. PW5 asked the appellants about the happenings but they
pleaded ignorance as to what had happened. They told her that
deceased had consumed something. Salt was put on the lips of the
deceased with a hope that if she had consumed poison, it would be
vomitted out. The effort was made for retrieving her consciousness.
Thereafter, deceased was taken to Joshi Hospital for treatment but lady
Medical Officer at the hospital after examining informed that she was no
more.
2.5. According to the prosecution one Samiullakhan, husband of
sister-in-law of deceased, brought deceased in unconscious condition at
Cooper Hospital at 2.00 hours in night in between 4th and 5th December,
2006. Dr. Shinde, Medical Officer on duty at hospital after examining her
opined that deceased has consumed some sort of poison and had died
before reaching hospital. PW9 Police Naik Pawar, then at night duty at
Cooper Hospital made Entry Exh.50 to such effect in Emergency
Patient Register maintained at Hospital.
2.6. PW1 on 5.12.2006 received a phone call at 00.30 hours
from sister-in-law acquitted original accused no.4 for coming to Cooper
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Hospital that deceased was seriously ill and was at said Hospital. PW1
immediately along with PW4 and his daughter PW3 reached the
hospital. He found that his daughter was no more. Upon inquiry, he
gathered that his daughter has committed suicide by consuming some
poison. He also noticed injuries on face and contusion on head of
corpse. PW1 lodged the complaint Exh.28 against the appellants for
having subjected deceased with mental and physical cruelty leading her
to commit suicide.
2.7. PW11 P.S.I. Ghadi while on Station House duty at Juhu
Police Station at about 00.15 hours received information that deceased
brought to Cooper Hospital, before her admission, having died due to
consumption of some unknown poison. PW11 went to hospital and
inspected the corpse. He registered Crime No.361/2006 against the
appellants for offence under Section 498-A , 304-B read with Section 34
of I.P.C upon complaint Exh.28 given by PW1 and recorded by him at
the hospital. PW11 drew inquest panchanama Exh.55 of the corpse of
deceased recording fresh injuries of assault seen on her face, mouth
and head and also seized salwar, kurta, brassiere and nicker on her
person. PW11 visited spot of the offence i.e. matrimonial house of
deceased shown by PW3 and recorded situation prevailing at the spot
by drawing spot panchanama Exh.30 in presence of panch PW2 Abdul
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Aziz and another and also recorded statements of witnesses. The
investigation was, thereafter, carried out by PW10 API Nangre and,
thereafter, by PW12 P.I. Kamlakar.
2.8 PW12 recorded statement of PW9 as well as collected
report Exh.42 prepared by PW8 Dr. Kachare of the Cooper Hospital
about autopsy upon corpse of deceased performed by him, amongst
other giving cause of death as "asphyxia due to smothering with
unknown undetected poison (unnatural)". PW12 added offence of
murder to crime registered. PW12 submitted charge sheet against the
appellants and acquitted accused no.4 for commission of offences
under Sections 498-A, 304-B, 302 of I.P.C. and under section 31 of the
Protection of Women from Domestic Violence Act, 2005 in the 22nd Court
of Metropolitan Magistrate at Andheri, Mumbai.
3. The appellants no.1 to 3 pleaded not guilty to the charge
Exh.12 framed against them and acquitted accused no.4 for commission
of offences under Sections 498-A, 302 alternatively with section 306 of
I.P.C. and for offence under Section 31 of Protection of Women From
Domestic Violence Act read with Section 34 of I.P.C. at the Court of
Sessions and claimed to be tried. The prosecution, in support of its
case, examined above referred 12 witnesses.
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4. Appellant no.1 during his examination under Section 313 of
Cr.P.C. claimed that as requested by PW1 he had given a loan of Rs.
25,000/- to PW1. PW1 failed to return loan in spite of demand made.
He further claimed that few days prior to the incident PW7 had taken
deceased to native place, in spite of Doctor having advised deceased
carrying second pregnancy to not to travel. After return deceased told
him that PW7 had forced her to travel by bus. Few days thereafter
miscarriage of deceased occurred. The deceased also told appellant
no.1 that PW7 had asked her to tell appellant no.1 not to demand for
return of loan amount of Rs.25,000/- from PW1. Hence, PW1 and PW7
falsely deposed against him and his relatives. Appellant no.1 thirdly
claimed that after few days of his marriage with deceased, PW3 was
coming to his factory and insisting him to marry her but as he declined,
she falsely deposed against him while PW4, at the say of his parents,
deposed falsely against him.
4.1. Appellants no.2 and 3 in their defence claimed that as PW1
did not return the loan amount to A1, PW1 and his relatives falsely
implicated them in the case.
5. After appreciation of the prosecution evidence, the Trial
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Court came to the conclusion that the prosecution by the evidence of
PW8 read with postmortem note Exh.42, viscera report Exh.44 and
45, the matters from inquest panchanama Exh.55, the evidence of
panch PW2 read with spot panchanama Exh.30 and the evidence of
PW5 and 6 has duly proved that deceased met with death in the house
of the appellants and said death was homicidal. The trial court came to
the conclusion that the prosecution though has not proved that the
deceased was subjected to a cruelty as contemplated under Section
498-A of IPC or that deceased was subjected to the domestic violence
as contemplated under the Protection of Women from Domestic
Violence Act, 2005 during the period in between her marriage and
occurring of her death, the prosecution has established the
circumstances leading to the sole inference of guilt of conclusion of guilt
of the appellants of committing her murder in furtherance of their
common intention. The trial court came to such conclusion amongst
other circumstances mainly relying upon circumstance of failure on part
of the appellants of occurring of death of deceased whilst in their
custody.
6. Mr. Shirish Gupte, the learned Senior Counsel for the
appellants no.1 to 3, by inviting our attention to the admission given by
Doctor PW8 who had performed autopsy, submitted that by said
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admission the opinion given by PW8 regarding cause of death during the
examination-in-chief is wiped out and or at least shattered. It was
contended that in such state of affairs no conclusion could have been
arrived by the trial Court of deceased having met homicidal death on the
basis of the said evidence or the other innocuous evidence referred and
relied. It was contended that same was apparent as even viscera report
does not denote death having ensued due to poisoning and the said
admission rules out the possibility of death having occurred due to
throttling/smothering. The learned counsel further contended that the
other evidence relied by the trial Court also does not conclusively lead to
the conclusion of deceased having died in the house of the appellants.
6.1. The learned counsel urged that in absence of any cogent
evidence of deceased having met with homicidal death, the trial Court
could not have convicted the appellants for committing her murder in
furtherance of common intention or even otherwise. It was urged that
the trial Court while considering the import of the circumstances
emerging from the prosecution evidence completely overlooked the vital
aspect that even the complaint lodged by PW1 was not for an offence of
murder but was for offences under section 498-A, offence under
Domestic Violence Act and the same having led the said deceased to
commit suicide. It was contended that the prosecution evidence fails to
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establish that the appellants were possessing any motive for committing
murder of the deceased.
6.2. The learned counsel further contended that the evidence of
PW5 and PW6 considered in proper perspective not only establishes
reasonable conduct on part of the appellants after occurring of incident
in house and the same also reasonably explains occurring of injuries on
the face of the deceased. It was urged that possibility of deceased
receiving such injuries while in process of retrieving her consciousness
being not at all ruled out by the prosecution and the same being amply
denoted by the said evidence and the evidence having failed to establish
the deceased having met death due to the said injuries i.e. due to
admission given by PW8 and furthermore even the viscera reports not
establishing death having occurred due to poison, nor there being any
other evidence leading to the conclusion of the same having occurred
accordingly and even admittedly no poison being recovered from spot of
offence, the trial Court could never have come to the conclusion of the
deceased having met with homicidal death.
6.3. In the same context, learned senior counsel contended that
even assuming that deceased had met the death in the house of the
appellants, even for the said reason they would not have been required
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to explain occurring of death and would have been bound to explain it
only in the event of prosecution having established death occurred being
either homicidal or suicidal. It was contended that due to paucity of
cogent evidence on record for establishing either of the facets, their
inability to explain the same can never be construed as a circumstance
against them nor a circumstance leading to the erroneous conclusion as
arrived by the trial Court of their guilt for offence of murder.
6.4.
The learned senior counsel by making reference to Section
113-A of the Indian Evidence Act contended that even as per
requirements of the said section presumption of the commission of
suicide by woman being abetted by husband or his relative can be
raised only if it is shown that said woman within the period of seven
years from her marriage was subjected to cruelty by husband or his
relative i.e. the cruelty as contemplated under Section 498-A of I.P.C.
The learned senior counsel contended that the trial Court after
assessment of the evidence of kith and kin of the deceased i.e. PW1,
PW3, PW7 and PW4 having arrived at the negative conclusion and so
also there being no other evidence on the record regarding such an
aspect, no presumption even such respect would have arisen.
6.5. The learned senior counsel thus contended that in such
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state of affairs and particularly failure of the prosecution to establish a
motive, as stray instances of quarrels in between the couple, by itself
being inadequate to afford a motive for commission of the offence of
murder for the appellant no.1 and so also for his relatives, the remaining
circumstances were wholly insufficient to arrive at the conclusion of the
guilt of the appellants as erroneously arrived by the trial Court. The
learned counsel thus contended that guilt of the appellants being not
established by cogent evidence by allowing the appeal, they deserve to
be acquitted or at least deserve to be given benefit of doubt.
7. Mr. P.S. Hingorani, learned A.P.P. countered the aforesaid
submissions and submitted that after carefully assessing the evidence of
PW8 and of the others, for the detail reasons recorded, the trial court
has correctly arrived at the conclusion of deceased having met with
homicidal death. The learned APP submitted that trial court has
assessed the evidence of PW8 in proper perspective and rightly keeping
back in the mind of it being evidence of an expert witness. The learned
APP contended that again for the well reasons recorded, the trial court
had rightly come into the conclusion that circumstances established by
the prosecution lead to the conclusion of the guilt of the appellants and
the same being probablised by the medical evidence adduced on the
record. It was contended that no conclusions as canvassed are
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warranted upon the admission of PW8 referred by learned Senior
Counsel for the appellants. It was urged that no case is made out
warranting any interference with conclusion arrived by the trial court on
the basis of the evidence surfaced at the trial and as such the appeal
dehors merits be dismissed.
8. Thoughtful considerations were given to the submissions
advanced by both the sides and record and proceedings were carefully
examined for ascertaining merits of the grounds on which the judgment
appealed was tried to be assailed.
9. Considering main ground of attack being the prosecution
having not established by cogent evidence deceased having met with
homicidal death makes us to consider the evidence relied by the trial
Court for coming to such conclusion and reasons given thereto in
paragraph nos.22 to 33 of the judgment appealed. The bare glance at
the said paragraphs reveals the trial Court having placed primely the
reliance upon the evidence of PW8 Dr. Kachare who had performed
autopsy upon the corpse of the deceased.
10. The careful consideration of deposition of PW8 reveals that
on 5.12.2006 in between 3 p.m. and 4 p.m. he had performed autopsy.
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It reveals that during the external examination he had noticed following
six ante mortem injuries mentioned by him in column no.17 of
postmortem notes i.e. :-
(i) contusion over left face at left side of mandibular region, 6
cm x 5 cm. reddish in colour;
(ii) abrasions, 4 in numbers, at right and left nostrils, two on
each side, upper and lower side size of 1.5 cm. X 1 cm, 2 cm x 1 cm. ,
0.5 cm x 0.5 cm, 1 cm x 0.8 cm respectively, reddish in colour;
(iii)
multiple abrasions over right nasolabial fold and right
sygomatic region, varying in sizes and shapes from 0.5 cm x 0.2 cm to
0.2 cm X 0.1 cm. reddish in colour;
(iv) contused abrasion over lower lip at near right angle of
mouth, 1 cm x 1 cm, reddish in colour;
(v) contused abrasion over upper lip, middle part at micro-
cutaneous part, 2 cm x 1 cm, reddish in colour and
(vi) contusion over anterior of right neck region, 3 cm x 3 cm.
reddish in colour.
10.1. The deposition reveals regarding the internal damage
noticed by him at brain and particularly in thorax i.e. larnyx trachea and
bronchi being congested and haemorrhages seen in trachea
laryngeal junction and of reddish colour; both the lungs congested
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and edematous. It reveals of PW8 having also noticed tardieu spots on
anterior surface of the heart and on cut section right chamber full of
blood while left chamber empty. It reveals regarding the situation
noticed by him in the abdomen and particularly stomach containing semi
digested food of 300 cc and of preserving viscera and nail clipping and
having sent it to Chemical Analyser. PW8 deposed that in his opinion
cause of death was "Asphyxia due to smothering with unknown
detected poison (unnatural)". His evidence reveals that he had vouched
for correctness of postmortem notes Exh. 42 prepared by him. His
evidence reveals that Exh.44 and 45 being report received from
Chemical Analyser and the said reports revealed that no poison was
detected in the viscera sent and no blood was detected in the nail
clipping. PW8 during the concluding portion of his examination-in-chief
deposed that injury nos. 1,2,4 and 5 referred hereinabove may be
possible due to pressing with palms and fingers while injury nos. 4 and 5
were possible by pressing of mouth by palm. PW8 was, however,
unable to say whether injury nos. 4 and 5 were possible by pressing
pillow on mouth.
11. After careful perusal of the extensive of PW8 cross-
examination effected on behalf of appellants, we do not find that any
significant material was elicited during the cross-examination of
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generalise nature effected about manner in which postmortem
examination is to be effected and the matters about it recorded in
paragraphs no. 12 to 17 in his deposition. Now reference to the matters
recorded in paragraph no.17 of his deposition reveals that he was
questioned regarding the basis upon which he had come to the
conclusion regarding reddish colour noticed by him. We do not find that
except PW8 having not recorded regarding the test performed in
postmortem report for the said aspect, any other matter was elicited
during the said cross-examination.
12. During the further cross-examination, except PW8 having
not found blood on teeth, tongue and inner side of mouth and injuries
mentioned in column no.17 of postmortem notes being suggestive and
not conclusive, any other significant thing was brought on the record.
Even with regard to the matters recorded in paragraphs no.20 and 21 of
the deposition, case is no different as the same are of generalise nature.
The reference to the matters recorded in paragraph no.22 reveal that
during the same it was brought on the record that PW8 had not recorded
the age of the injuries and had not sent portion of lung or brain to
Chemical Analyser. PW8, during the relevant part of the cross-
examination, agreed that examination of brain helps the doctor in
formation of his opinion about the cause of the death and so also lungs
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are the most affected organ in case of smothering. PW8 also agreed
that the changes taking in the body organs vanishing by passage of
time.
13. Now considering the part of the cross-examination, upon
which much stress was laid by learned senior counsel, the careful
perusal of said part recorded in paragraph no.23 reveals that during the
same PW8 admitted "that cumulative effect or even the individual effect
of the injuries mentioned in column no.17 of the postmortem notes
cannot cause the death". Similarly PW8 during further part of
examination recorded in paragraph no.24 of the deposition admitted that
natural conduct of the victim, whose nose and mouth are blocked, would
be to remove the obstruction. PW8 further admitted that the person,
who tries to block the airways, victim may cause injury on the aggressor.
Similarly PW8 admitted of having not collected any material from
investigating agency that whether the aggressor had sustained any
injury. PW8 further admitted the possibility of unconscious patient if
given the water and swallowed by him, it may lead to cardinal arrest.
14. Now after careful perusal of the deposition of PW8 of which
most material part is recited hereinabove, we are unable to find any
substance in the criticism advanced that by the said evidence, the
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prosecution has not established probable cause of death of the
deceased or that the opinion earlier given by PW8 and highlighted
hereinabove was shattered, wiped out as contended by learned senior
counsel. We are of such a considered view as PW8 during examination-
in-chief has given composite cause of death as asphyxia due to
smothering with unknown detected poison. Having regard to the same
merely because he admitted that the external injuries noticed by him and
mentioned in column no.17 either individually or cumulatively could not
have caused the death; cannot be said to have shattered his said
opinion. Such a conclusion is obvious, as while giving the opinion PW8
has never attributed the death being caused "only due to the said
injuries".
15. Now considering the other aspect, even accepting the fact
that viscera report was to the effect "general and specific chemical
testing does not reveal any poison in Exhs. 1, 2 and 3 i.e. stomach and
its contents, portion of small intestine, pieces of liver, spleen and kidney
and blood", still it cannot be gainsaid that such a viscera report has ruled
out the possibility of death being caused due to the asphyxial
smothering coupled with poisoning. We are of such a view as no such
admission has been elicited from PW8 during the cross-examination that
receipt of such a viscera report rules out the possibility of the poisoning
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as opined by him while giving the cause of death. The learned senior
counsel has not shown any other material elicited on the record during
cross-examination or otherwise leading to such conclusion i.e. non-
detection of poison in viscera report altogether excludes the possibility of
the victim being subjected to the poison. Needless to add that bare
reference to the books on Toxicology reveals existence of poison whose
presence and or traces may not be detected in the human body after
consumption. The said matter being related to the field of an expert,
arising of such a conclusion from such C.A. report could have been
accepted only in the event of expert PW8 examined by the prosecution
having opined as attempted to be canvassed by learned senior counsel
or otherwise such evidence was brought on record on behalf of the
appellants.
16. We are of such a considered view as even viewing the
matter from an another angle, we find that during the cross-examination,
PW8 was never questioned whether he was maintaining the opinion
given by him in the examination-in-chief in spite of the fact of receipt of
such a C.A. Report or by drawing his attention to such matters from said
C.A. Report. As a matter of fact, we find that the defence having chosen
to leave the said matter untouched, the submission to such effect tried to
be canvassed with half-hearted cross-examination would not survive.
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We further add that in the event of PW8 being questioned regarding the
said aspect and his said answers being in the line as canvassed, the
relevant submission could have been accepted with a favour.
Resultantly, we find that the opinion given by PW8 during the
examination-in-chief having remained unshattered after the cross-
examination, the same cannot be said to have been wiped out due to the
said solitary recital on which the stress was laid by the learned senior
counsel.
17. Since we have already recited bulk of material part of the
evidence of PW8 hereinabove, without reiterating the same, after careful
perusal of his evidence, we find that the opinion of cause of death given
by him is primarily based upon the matters noticed by him during the
autopsy as denoted by his evidence. It is settled law that the opinion
given by expert person can be doubted and/or can be said to be
unsustainable only in the event of the same being found to be devoid of
any basis and/or the expert being not able to assign rational reasoning
for it based upon a data or the reasoning given by him being found to be
trash or baseless. In our humble opinion, no such a case being seen
from the evidence of PW8, apart from being not pinpointed by learned
senior counsel, the submission based by drawing unwarranted
inferences from truncated part of the deposition of PW8 which is not at
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all diagonally opposite to earlier version, would deserve to be discarded
due to not standing to the reason.
18. Resultantly, the consideration of the evidence of PW8 leads
to the conclusion of the prosecution by the said evidence having
established cause of the death as given by PW8 and the same being
unnatural. Needless to add that same also denoting that the opinion
given by PW8, during the examination-in-chief, being not wiped out for
the matters pointed out by the learned senior counsel for the appellants
or for the submissions canvassed thereon. Now considering the other
evidence referred by the trial Court in the context of arriving at the
conclusion of the deceased having met homicidal death, the reference to
the inquest panchanama brought on the record through the evidence of
PW11 PSI Ghadi does not reveal that anything was elicited during his
cross-examination shattering his evidence that the time of inquest he
had noticed fresh injuries of assault on the face, mouth and head of the
deceased. Such matters deposed by PW11 are found well corroborated
by recitals to the said effect contained in inquest panchanama Exh.55.
The perusal of the cross-examination also does not reveal that existence
of such injuries on the face and head of the deceased was seriously
challenged on the part of the defence, though an attempt was tried to be
made to explain the same by laying finger upon the evidence of PW5
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and PW6 i.e. the neighbours of the deceased, who had visited the place
of incident. Without dilating about said aspect presently, it can be said
that the said injuries prima facie being indicative of deceased being
subjected to some violence again prima facie corroborates the medical
opinion of unnatural death given by PW8.
19. In the same context now reference to the evidence of PW2
panch for spot panchanama Exh.30 and after perusal of it, we are
unable to find that the evidence of PW2 that PW11 having visited the
spot and having drawn the panchanama, has been shattered in any
manner. As a matter of fact, the corroborative evidence to the said effect
is also found from the deposition of PW11, who had visited the said spot
and drawn said panchanama. Though the learned senior counsel for the
appellants tried to submit that the said evidence does not reveal that any
poison was found at the spot, it is difficult to give any credence to said
submission after taking into consideration the stand of the rival parties.
Needless to add that it is the case of the prosecution that the death has
ensued due to asphyxia due to smothering with consumption of
undetected poison. Having regard to the same, merely because
anything, apparently giving impression to be poison was not found in the
said house by itself cannot be said to be a circumstance supporting the
defence submission that the same has an effect of prosecution having
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not established relevant part of prosecution case. Such a conclusion is
inevitable in view of the medical evidence adduced by the prosecution
having remained unshattered of poison being one of the cause of the
death of the deceased ensued.
20. Now considering the evidence of neighbours PW5 and PW6
also relied by the trial Court for arriving at the conclusion of deceased
having met with a homicidal death, we do not propose to recite the
evidence of both the witnesses in detail, as after careful perusal of their
deposition, we find that they have deposed more so in consonance with
the prosecution tale narrated in earlier part of the judgment i.e. appellant
no.1 having been to their house in the midnight at 12 to 12.15 and
thereafter both of them having visited the house and the matters
witnessed by them. Out of them, now firstly taking up the evidence of
PW6, it reveals that appellant no.1 had then told his wife -deceased ate
poison in his house. Even the evidence of PW5 is also to the same
effect. It is most significant to note that said evidence denotes that after
visiting the said house, they had found that the deceased was lying in
the kitchen.
21. Now before considering the criticism advanced by the
learned senior counsel upon said evidence, it can be safely said that
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said evidence and fact therein of appellant no.1 having told such a thing
to both said witnesses itself corroborates the prosecution case of
poison being one of the cause behind occurring of the death in question
or at least deceased being found lying in kitchen. Significantly enough
said evidence also denotes that appellant no.1 was well aware of such a
cause for herself being found in kitchen.
22. In same context bare reference to the statement of appellant
no.1 or even the other appellants under Section 313 of Cr.P.C., we do
not find that any of them had thrown any light upon the relevant aspect
as to what was said poison and what were the circumstances in which
deceased happened to consume the poison. The prosecution by the
evidence of PW6 and PW5 having convincingly established that poison
has some role to play for deceased being found in such condition and
such matters also emerging from such say of appellant no.1, also
established by the said evidence, makes it difficult to accept that the
prosecution has not proved the relevant part of the prosecution case as
canvassed.
23. Furthermore, the fact of appellant no.1 having knowledge
about such happening i.e. the reason because of which deceased was
lying in kitchen considered on the backdrop of further act of appellant
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no.1 of not throwing further light upon the relevant aspect warrants to be
viewed with all seriousness and such non-throwing further light upon
said aspect, in our opinion, definitely warrants drawing an adverse
inference against appellant no.1 for not discharging the burden of
explaining the said matters only within his knowledge.
24. Since glance at the evidence of PW5 and PW6 reveals that
appellant no.1, after occurrence of incident, had been to their house and
thereafter, they had visited the house in question and found deceased
lying in a kitchen, is also a circumstance raising a strong suspicion not
only against appellant no.1, but the other appellants, whose presence is
also established by the said evidence and so also the ignorance pleaded
by them about the happening to PW6 and PW5. Similarly, we find it
difficult to accept that any person whose wife has consumed poison and
aware of it, will allow her to lie at such a place rather than taking her to
bed and calling of the doctor. Needless to add that neither of the
witnesses called were doctors nor acting of the appellant no.1 in such a
manner would stand to the reason due to himself being perplexed by the
situation as evidence also denotes that he was not only the person in the
said house and other two elder persons, the other appellants were also
present in the house. We find that the said conduct on part of the
appellant no.1 is clearly unexplainable and/or for oblique purpose. Such
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an observation would be also applicable to the conduct of other
appellants, who had also apparently taken any pains to shift the
deceased on the bed or to call the doctor/medical assistance.
25. Thus such a conduct of all the appellants as established
from said evidence fortifies inference drawn earlier. Thus, considering
the said evidence in proper perspective, it is difficult to digest ignorance
claimed by the appellants regarding event occurred in said house.
Similarly their conduct in said episode, as established by said evidence,
cannot be said to be natural and thus in terms raises a suspicion of
highest degree against them.
26. The learned senior counsel, by laying stress upon evidence
of both said witnesses and particularly that of PW5 about efforts made
for retrieving consciousness of deceased, urged that in said process
deceased might had sustained injuries in question. In the said context,
we find that evidence of PW5 only reveals that salt was put on her lips in
a hope that she might vomit and thereafter they had "slowly" patted on
her both the cheeks so that she might regain consciousness. Now
considering nature of injuries sustained by the deceased as revealed
from the evidence of PW8 and such evidence of PW5, we find it
extremely difficult to accept that said injuries might have occurred in
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such a process. It is difficult to perceive that such a patting would result
in causing such injuries.
27. The learned senior counsel, by laying the possibility brought
on the record during the evidence of PW8 that in the event of person
being unconscious, the process of swallowing water given may lead to a
cardiac arrest, attempted to urge that death might have resulted
accordingly by placing reliance upon such evidence of PW5 and PW6.
We do not find any merit in submission canvassed as at the first place
we do not find that their evidence reveals that any water was given to
deceased and secondly we find that even such a possibility was
expressed by PW8 while answering a general question put to him and
not basis of any material brought on the record in the instant case that
water was given to the deceased. Similarly there exists no opinion of
doctor that the death of deceased had ensued due to cardiac arrest.
28. Furthermore considering unshattered part of the evidence of
PW5 and PW6 that thereafter the deceased from the said house was
taken to the hospital of Dr. Joshi and at said place after examination the
Doctor told that she was dead, we are unable to find any fault with the
findings arrived by the trial Court of deceased having died in the house
of the appellants. Needless to add that such a conclusion is inevitable
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after considering sequel of events occurred in said night after 12
midnight and proximity of time within events of appellant no.1 calling
PW6 and PW5, events happened at the house and deceased being
declared dead at the hospital.
29. By making reference to the certain admission from the
evidence of PW8, an attempt was made to canvass on part of the
appellants that there also exists possibility of deceased having died
during the period after she was taken out of the house up-till reaching
hospital of Dr. Joshi. The attempt was made to canvass by pointing out
that the evidence of PW6 and PW5 is to the effect that they had seen
her unconscious and is not to the effect that she was dead and as such
finding to such effect arrived by the trial Court being incorrect. After
carefully considering said evidence and taking into account that both
said witnesses were layman, we do not find any merit in said submission
canvassed. No doubt, that due to paucity of precise evidence existence
of such a possibility cannot be ruled out, still it being not sole or
predominant probability and the predominant probability being otherwise
of deceased having met with death in house of the appellants, we do not
find any merit in the submission canvassed of such a finding arrived by
the trial Court was erroneous or improper.
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30. Now considering said finding along with the finding arrived
by the trial court on the basis of the evidence of PW8, inquest
panchanama, spot panchanama, PW2 and that of PW11, we find that
no error was committed by the trial Court in arriving at the conclusion of
the prosecution by such evidence having duly established deceased
having met with homicidal death and find no substance in the contrary
submission canvassed by the learned senior counsel for the appellants.
31.
We also feel it appropriate to deal with one more
submission canvassed by learned senior counsel for the appellants by
making reference to the evidence of PW6 and PW5 about the efforts
made after they reached the said house of retrieving consciousness of
the deceased. As a matter of fact, the relevant part of the evidence
thereto has been already referred by us and while dilating about it, it has
been already observed that on the basis of the said evidence, a
conclusion cannot be drawn that due to commission of the said act i.e.
patting on the face, mouth, such injuries could not have been sustained
by her. It has also been concluded that existence of such injuries either
denotes or at least suggests of deceased being subjected to violence.
In light of the said discussion, we find no substance in the submission
canvassed that by such evidence surfaced on the record, the appellants
have explained injuries found on head, neck and face of the deceased or
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said explanation rules out of deceased being subjected to the violence
and hence no duty/burden was cast upon any of appellant to explain
occurring of unnatural death of the deceased in their house or the
further submission of themselves having discharged the burden by
explaining the said injuries. Needless to add that all said submissions
were based upon the erroneous assumption of prosecution having failed
to establish the deceased having met with homicidal death. Since
finding to contrary being arrived by us of prosecution having established
such a facet and the reasoning given earlier also denoting that such
explanation cannot be accepted, the relevant submission will not
deserve any credence.
32. As a net result of the aforesaid discussion, considering the
evidence relied by the trial Court for coming to the conclusion of
deceased having met homicidal death, we are unable to find any error
committed by the trial Court in arriving at such a conclusion. We further
add that as a net result of the aforesaid discussion, it can be safely said
that the prosecution has definitely established the first circumstance
against the appellants of deceased having met with homicidal death and
consequent second circumstance the said death having occurred in
the house of which the appellants were the occupants and they were
present when the transaction/incident leading to her death had occurred
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in said house in the night in question.
33. Now before taking up for the consideration the other
circumstances relied by the trial Court for arriving at the conclusion of
the guilt, we feel it appropriate to deal with the another submission
canvassed of there arising no presumption under Section 113 of the
Evidence Act. Truly speaking the deceased having met homicidal death,
the discussion upon the said aspects as in said contingency no question
survives of arising of any such a presumption. However, still we are
unable to accept the submission canvassed that in view of the trial Court
having arrived at a finding that the prosecution had not established the
appellants having subjected deceased either to cruelty as contemplated
under Section 498-A of I.P.C. or domestic violence as contemplated
under the Protection of Women from Domestic Violence Act, the same
by ipso facto denotes that deceased was not treated with cruelty or that
relationship in between deceased and the appellants were normal or that
the appellants had no motive to commit the crime in question as
canvassed on behalf of appellants.
34. We are of such a view after taking into consideration the
entire discussion made by the trial Court in paragraph nos.13 to 49
regarding the evidence of kith and kin of the deceased i.e. PW1, PW3
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and PW4 and the conclusion thereon arrived in paragraph nos.53 to 57.
Since after carefully considering evidence of said witnesses and the
discussion made thereon and conclusion drawn, we find that the trial
Court has carefully considered the matters duly established by said
evidence and the conclusions flowing from the same, we do not propose
to reiterate the evidence of the said witnesses, except stating that by
their said evidence the prosecution has duly unfolded the part of the
prosecution case recited earlier regarding treatment received by the
deceased at the house of the appellant i.e. as informed to them by the
deceased and about the appellant no.1 taking a loan of Rs.45,000/- from
PW1 for the purposes of business, not giving any profits of business to
PW1, nor returning the loan etc. Needless to add that as we find that
the trial court has duly considered all pros and cons of said evidence, we
deem it unnecessary to indulge a detail dilation about each of facets
deposed by each of the said witness.
35. Now considering the conclusion drawn by the trial Court
after careful assessment of said evidence upon established principles of
appreciation of evidence, we are unable to find any fault therein. The
said conclusion apparently reveals that trial court having concluded of
the appellant being not guilty for offence under Section 498-A of I.P.C. or
the subjecting deceased to Domestic Violence Act, because the acts
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established by the said evidence not satisfying the ingredients of the
concern aspect. We further find that the trial Court had nowhere come
to conclusion of said evidence adduced by the prosecution has failed to
establish the acts committed by the appellants as deposed by the said
witnesses. As a matter of fact, we find that while considering the said
evidence, the trial Court had duly taken into consideration even the
defence of the appellants that said witnesses have deposed against
them due to appellant no.1 having advanced a loan to PW1 and PW1
having failed to return it. Similarly we find that after duly taking into
consideration minor disparities arising about claim of PW1 of having
advanced Rs.45,000/- to appellant no.1, his explanation of written
agreement of making himself partner in the business being not executed
due to relationship, the trial court has concluded of same having not
affected the said claim. Thus considering the said reasoning, we are
unable to accept the submission canvassed of arriving of such a finding
by the trial Court leads to the conclusion as canvassed by learned senior
counsel.
36. Similarly after carefully considering the matters recorded in
paragraph no.83 of the judgment regarding prosecution having
established PW1 having paid a loan of Rs.45,000/- to appellant no.1, the
said amount was not refunded by appellant no.1, the deceased insisting
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for repayment of the said amount and for the said reason, the appellants
were maltreating her and all the said conclusions arising out of the
evidence of the said three witnesses and the same had operated as a
motive for the appellants for committing a crime in question and as we
find that such a finding was arrived by the trial Court on the basis of
evidence surfaced at the trial and emerging out of it, we are unable to
find any substance in the submission canvassed that such a finding
arrived by the trial Court was either erroneous or that the prosecution
had failed to prove probable motive for the appellants for committing the
crime in question i.e. third circumstance against the appellants.
37. In the context of the evidence of the said witnesses i.e. PW1
in particular and that of PW3 and that of PW4 and PW7, the learned
senior counsel by pointing out the discrepancies, as pointed out to the
trial Court, tried to canvass that the discrepancies from the evidence of
PW1 of non-execution of agreement on mode of payment to A1 being
nature of improvement, PW3 having not deposed about the injuries
sustained by the deceased while recording of her statement by police,
her statement being recorded after about 6 to 7 days and similar sort of
submissions regarding PW7 also having not deposed in detail about the
injuries while recording of her statement by police, leads to the
conclusion of the evidence being not cogent and/or being in the nature
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of improvements made at a trial. Since we find that the trial court has
meticulously considered each of said submission as well as similar
submissions canvassed and we do not find any fault on part of trial
Court in discarding the same, without unnecessarily dilating upon the
same, we say that the submissions canvassed are not worthy of
credence. Resultantly, we find hardly any reason for accepting the
submission that by the said evidence prosecution had not established
the third circumstance of the appellants possessing probable motive for
commission of crime.
38. Now considering most vital fourth circumstance of failure
of the appellants to give the explanation of arising of homicidal death
of the deceased in their house and/or themselves being present at the
relevant time, the discussion made earlier duly reveals that the
prosecution through the evidence of PW5 and PW6 has duly established
the presence of the appellants in the house during the relevant time
when they had been to the said house. As a matter of fact, the
appellants have also not disputed the said fact. The trial Court has also
given benefit to acquitted accused no.4 due to the prosecution having
not established either she was residing in the said house or was present
in the said house when incident in question had taken place.
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39. In the said context the reference to the provisions of Section
106 of the Indian Evidence Act upon which the reliance was placed by
the trial Court and the one which reads as under :-
"Section 106 : Burden of proving fact
especially within knowledge- When any fact is
especially within the knowledge of any person, the
burden of proving that fact is upon him."
in terms reveals that due to the said provisions it was incumbent upon
the appellants to explain the circumstances due to which deceased had
met homicidal death in the house of the appellants in which they were
present when the incident leading to her homicidal death has taken
place in the relevant night. Needless to add that the peculiar facts and
circumstances of this case reveals that before PW6 and PW5 reaching
the said house, the appellants were only person present in the said
house or in other words it can be said that no other evidence has
surfaced on the record denoting that anybody else had arrived or was
present in the said house when the incident in question has taken place.
Having regard to the same, we are unable to find any fault with the trial
Court in coming to the conclusion that non-explanation about the said
homicidal death on part of the appellants was a circumstance having
serious potential, alone leading to the inference or themselves being
responsible for causing said homicidal death of deceased.
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40. Furthermore considering such serious potential of the said
fourth circumstance established in conjunction with earlier referred
three established circumstances, we further find trial Court having not
committed any error of arriving conclusion of the guilt of the appellants
in committing murder of the deceased in furtherance of their common
intention. We are of such a considered opinion as the said
circumstances taken together within themselves form the formidable
chain leading to sole such an inference of guilt of the appellants. Since
the trial court has made a detail discussion regarding every relevant
aspects leading to such an inference against all the appellants from the
said four circumstances duly established by convincing and cogent
evidence, we do not propose to make any further dilation about the
same except stating that we find all the said discussion made by the trial
Court being well in conformity with the legal provisions and the evidence
surfaced on the record.
41. Resultantly, we find that no error was committed by the trial
Court of the prosecution evidence having established the guilt of all the
appellants for commission of the offences for which they were convicted
and sentenced by the trial Court. Hence we do not find any merit in the
appeal preferred and dismisses the same.
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42. Registry to furnish copy of the judgment to the appellants in
custody through the Superintendent of Prison at which they are lodged.
(P. D. Kode, J.) (Smt. V.K. Tahilramani, J.)
....
