Bombay High Court

Narsing Dhondiba Pol vs The State Of Maharashtra on 17 August, 2015

Bench: V.K. Tahilramani

                                                OJ APEAL 1138 OF 2008.doc




                                                                                
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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION




                                                        
                       CRIMINAL APPEAL NO.1138 OF 2008


          Narsing Dhondiba Pol                                        ]




                                                       
          Age: 43 years                                               ]
          r/o Adarshanagar, Room No.216                               ] ... Appellant
          Fish Market, Vashinaka                                      ] Orig. accused
          Chembur, Mumbai                                             ]
                                                                      ]




                                            
          Presently lodged in Nashik Road Central Prison              ]

                     V/s.
                                    
          The State of Maharashtra                                    ] Respondent
                                   
          Mrs. Nasreen S.K. Ayubi, appointed Advocate, for the Appellant.
          Mrs. A. S. Pai, A.P.P., for the Respondent-State.
            
         



                 CORAM : SMT. V.K. TAHILRAMANI &
                         DR. SHALINI PHANSALKAR-JOSHI, JJ.

DATE : 17TH AUGUST, 2015.

ORAL JUDGMENT : [Per: Dr. Shalini Phansalkar-Joshi, j.]

1. The appellant, who stands convicted by Additional

Session Judge, Mumbai, in Sessions Case No.705 of 2004, vide

judge dated 11.09.2008, for the offence punishable under

Section 302 of the Indian Penal Code and sentenced to suffer

OJ APEAL 1138 OF 2008.doc

imprisonment for life and to pay fine of Rs.2,000/-; in default to

suffer rigorous imprisonment for one year, by this appeal,

challenges his conviction and sentence.

2. Brief facts of the appeal can be stated as follows :-

Deceased Aruna was the wife of the appellant. She

had a daughter by name Swarupa and a son by name Pawankar

(P.W.5) Alongwith them, she was residing in room No.216 in PCL

Colony, Chembur. The appellant was working as Welder and

Fitter and in relation to his job he used to go abroad. P.W.1

Madhavi is a social worker and residing in the same locality

where the appellant and deceased were residing.

3. On 10.4.2004, the appellant had returned from

abroad and he met P.W.1 Madhavi on 12.4.2004 in the shop of

Laxmi Tailor at about 7 to 8.00 p.m. There he told P.W. 1 Madhavi

that he had sent amount of Rs.80,000/- to his wife Aruna, but

she was not giving account of the said amount. He further told

her that Aruna has also not explained as to what she has done of

OJ APEAL 1138 OF 2008.doc

35 tolas gold ornaments. Aruna has also pledged the photo-pass

of the room with P.W.3 Sanjeevani Kawade and took loan of

Rs.10,000/- from her. She has also borrowed an amount of

Rs.5,000/- each from Parvati Pol and Shakuntala. The appellant

further told her that he was going to take Aruna to the house of

her parents to convince her.

In this backdrop, incident giving rise to this case, took

place on 19.4.2004. On that day at about 5.30 a.m. P.W.2 Asha

Gaikwad-the neighbour of Aruna, noticed that some persons

were talking outside the house of Aruna. Hence she came out

and went to the house of Aruna. There she found Aruna lying

dead on carpet and the appellant was present there. She,

therefore, called P.W.1 Madhavi on phone, who came there and

gave information of the same to the police. On enquiry by her

with the appellant, he admitted his mistake of committing

murder of Aruna by strangulating her with nylon rope.

5. On receipt of information from P.W.1 Madhavi, P.W.10

PSI Jadhav, attached to R.C.F. police station, came to the spot at

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about 7.30 a.m. and found dead body of Aruna lying there. The

appellant was also present on the spot itself. He recorded

complaint of P.W.1 Madhavi vide exh.10. He obtained crime

number on phone from police station. It was C.R.No.80 of 2004.

Then he prepared inquest panchanama and spot panchanama

vide Exh.12, sent the dead body for postmortem and arrested

the appellant on the same day. After inquest panchanama, he

has taken in custody the clothes of deceased and also seized the

clothes of appellant under panchnama. From the spot he seized,

blanket and nylon rope. All these seized articles were sent to

Chemical Analyzer vide requisition letter Exh.33. The Chemical

Analyzer's reports are produced in the case vide Exh.34 to 38.

The postmortem report Exh.24 disclosed cause of death as

asphyxia due to strangulation. Further investigation of the case

was taken over by P.W.11 Police Inspector Deshmukh. He has

recorded the statements of witnesses and further to completion

of investigation, filed chargesheet in the Court against the

appellant.

6. On committal of the case to the Sessions Court, trial

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Court framed charge against appellant vide Exh.3. The appellant

pleaded not guilty and claimed trial.

7. In support of its case, prosecution examined in all 11

witnesses and on appreciation of their evidence, trial court was

pleased to convict and sentence the appellant as aforesaid.

This judgment of the trial Court is the subject matter

of this appeal. We have heard learned counsel for appellant and

learned APP. In our considered opinion, before adverting to rival

submissions advanced by them, it would be useful to refer to the

evidence on record.

9. This case stands on circumstantial evidence alone.

The prosecution has relied upon three circumstances, first is that

of Aruna spending amount of Rs.80,000/- which appellant has

sent to her and also disposing of the gold ornaments, pledging

photo-pass of the room and further borrowing amounts in the

absence of appellant, hence the appellant being annoyed with

her. The second circumstance relied upon by prosecution is that

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of homicidal death of Aruna due to asphyxia, in her residential

house where the presence of appellant is proved. The last

circumstance relied upon by the prosecution is that of no

explanation is offered by the appellant about her unnatural

death.

10. To prove the first circumstance, prosecution has

relied upon evidence of P.W.1 Madhavi before whom, as per

prosecution case, appellant has disclosed about Aruna spending

an amount of Rs.80,000/- and disposing of her gold ornaments

etc. P.W. 1 Madhavi has stated that on 12.4.2004, appellant met

her in the shop of Laxmi Tailor at about 7.00 to 8.00 p.m. There

appellant told her that he had sent amount to his wife from

abroad on number of occasions and she has spent the said

amount as per her desire. Moreover, she had also taken amount

as loan by pledging the photo-pass of their room. He further told

her that he was going to take his wife to the house of her mother

so as to convince her.

11. The prosecution has then examined P.W.3 Sanjeevani

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Kawade from whom Aruna has borrowed an amount of

Rs.10,000/-. As deposed by this witness, she is also residing in

the same locality. She was knowing Aruna quite well. She and

Aruna were on visiting terms. On one occasion Aruna had come

to her house and demanded an amount of Rs.10,000/- for

hospital expenses. At that time Aruna has pledged photo-pass of

her room with her as security. She has further deposed that 3 to

4 days prior to the incident, appellant had come to her house

and made enquiry about the amounts which Aruna had

borrowed from her and she has told appellant that Aruna had

obtained amount of Rs.10,000/- for hospital expenses. It may be

true that this witness has subsequently deposed that Aruna has

refunded said amount and therefore, she was declared hostile.

However, in cross-examination by learned APP, she has admitted

that on 17.4.2004, Aruna had came to her house and demanded

photo-pass. At that time, she told Aruna that unless the amount

of Rs.10,000/- is returned, she will not give photo-pass to her.

As per her evidence Aruna did not repay an amount of

Rs.10,000/- and therefore, she did not return the photo-pass.

Subsequently the appellant assured her and told her that he will

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pay the amount.

12. Further there is also evidence of P.W.4

Shaukeenkumar Jain, who is running business of Jewellery in the

name of "Kavita Jewellers and Manali Jewellers", at Vashi Naka,

Chembur. As per his evidence, he was acquainted with Aruna as

she resides near his shop. She had purchased jewellery items

from his shop. On one occasion, she has given order of gold

bangles and chain, costing Rs.14,000/- and Rs.12,000/-,

respectively. She had purchased these ornaments on credit. At

that time, she had paid only Rs.4,000/- and remaining amount

was in balance. Two to three months thereafter, she came to his

shop and returned the ornaments saying that she has no amount

to pay towards balance consideration. Therefore, he returned her

amount of Rs.4,000/-. He has further deposed that she again

came to his shop and demanded an amount of Rs.9,000/-,

assuring that she will return the said amount after arrival of her

husband from abroad. Accordingly he gave her an amount of

Rs.9,000/-, out of which she returned only Rs.1,000/- saying that

as her husband did not come, she cannot repay the entire

OJ APEAL 1138 OF 2008.doc

amount and will pay the balance amount of Rs.8,000/-

subsequently after return of her husband.

13. The evidence of P.W.7 Smt. Yashoda Pol, who resides

in the vicinity to the house of Aruna, also proves that Aruna had

demanded money from her. As she has denied that she gave

the amount of Rs.5,000/- to Aruna, prosecution has declared her

hostile and cross examined her. Though prosecution could not

succeed in eliciting admission from her that she has given

amount of Rs.5,000/- to Aruna as loan, in our opinion, it does not

make much difference as her evidence to the effect that Aruna

had demanded an amount from her is also sufficient to prove the

prosecution case.

14. There is absolutely no cross-examination of these four

witnesses their evidence to the effect that Aruna has borrowed

some amount from them and has also sold her gold ornaments

and further pledged photo-pass of room. The evidence of these

witnesses has remained completely unshattered and

unchallenged on record. It is coupled with the evidence of P.W.1

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Madhavi that when appellant came to know about it after he

returned from abroad, he was very much annoyed with Aruna.

He also intended to take her to the house of her mother. In our

considered opinion, thus, there is more than sufficient evidence

on record to prove motive or the genesis of the incident on the

part of the appellant to do away with Aruna.

15.

The second incriminating circumstance in the instant

case is that of homicidal death of Aruna in her residential house

where the presence of appellant is proved at the time of her

death. P.W.9 Dr. Kachare has conducted postmortem on her

dead body and his evidence goes to prove that on external

examination, he has noticed following injuries on her person

which were corresponding to internal injuries.

1. Ligature mark around neck is seen, encircling neck fully, with impression of abraded groove at

right neck region, resembles knot, seen below and laterally from right. Ligature extends below and then horizontally at out of neck region, above thyroid cartilage, 5 cm below from chin, ligature further extends to above and laterally to

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left neck region, seen below left ear and then extends posteriorly at hair line, ligature, dark

reddish brown in size 28 x 0.5 a.m. N.C. 28 cms at mid thyroid level.

haemorrhage are seen in neck strap muscles. Evidence of fracture is seen,

2. Contused Abrasion over right cheek, reddish

brown

3. Contused Abrasion over mandibular region below lips, 2 in numbers 1.5 cm x 0.1 cm and

1.5 cm x 0.1 cm, reddish brown.

4. Contused Abrasion over anterior chest, upper part 10 cm x 5 cm, reddish brown.

5. Contused Abrasion over middle of chest in

between memory 2 cm x 0.5 cm, reddish.

According to him, all these injuries were antemortem

in nature and the cause of death was asphyxia due to

strangulation, hence unnatural. The postmortem report issued

by him to that effect is produced on record at Exh.24. In

evidence before the Court, he was shown nylon rope recovered

from the spot of incident and he has stated that ligature mark

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found on the dead body of Aruna is possible by the said nylon

rope. In his cross examination, suggestion is put up that the

cause of death can be suicidal. However, this suggestion is

denied by him. Otherwise also evidence of ligature mark on

neck totally rules out the possibility of death on compression of

neck with hands. Evidence of P.W. 9 Dr. Kachare, thus, proves

the cause of death as homicidal death.

16. The evidence of P.W.2 Asha Gaikwad who has first

noticed the dead body of Aruna in her house at 5.30 a.m.,

proves that the appellant was very much present in the house at

that time. According to her appellant told something to the

police about the cause of Aruna's death. Police also seized nylon

rope which was produced by the appellant. The police have also

seized carpet, blanket alongwith broken bangles of Aruna. In our

opinion, the seizure of broken bangles with nylon rope from the

spot further corroborates evidence of P.W.9 Dr. Kachare about the

cause of death being homicidal in nature.

17. The evidence of P.W.1 Madhavi Pujari, who has reached

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there on receipt of telephonic message from P.W.2 Asha

Gaikwad, goes to prove that when she reached there, she found

that Aruna was lying on the mat. Appellant was present and

weeping there. She made enquiry with the appellant about

death of Aruna and appellant told her that mistake has

happened at his instance. Thereafter she has informed the police

and after police came there, her complaint came to be recorded.

The prosecution has declared her hostile only to the extent that

she has denied that in her presence accused made confessional

statement that he has strangulated Aruna with nylon rope

thereby causing her death. Though the contents to that effect in

her complaint are denied by her, her evidence that the accused

has admitted that he has committed some mistake in respect of

death of Aruna is more than sufficient to prove complicity of

appellant. In addition thereto, her evidence also proves

presence of appellant at the spot in the house where homicidal

death of Aruna had taken place.

18. Even the evidence of P.W.5 Pawankumar, son of

appellant and Aruna proves that his father was very much

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present in the house when the death of his mother was noticed.

19. Thus, in this case, the prosecution has established

that death of Aruna was homicidal in nature on account of

strangulation. Prosecution has further established the seizure of

nylon ropes from the spot and that ligature marks found on the

dead body of Aruna were tallying with the nylon rope. The

prosecution has also established that Aruna's homicidal death

had taken place in her residential house. The prosecution has

also proved presence of appellant in the said house at the time

of her death.

20. In view of the prosecution discharging thus initial

burden cast upon it, onus is naturally shifted upon the appellant

to offer plausible and reasonable explanation about the cause of

his wife Aruna's death. Section 106 of the Evidence Act makes it

necessary for the accused to discharge such burden as to the

circumstances and facts in which her death had taken place as

those are within his special knowledge. In this respect, we may

make a useful reference to the decision of Apex Court in

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Trimukh Maroti Kirkan -vs- State of Maharashtra, 1 ;

wherein the Apex Court observed that,

"where an offence like murder is committed, in secrecy inside the house, the initial burden to

establish the case would undoubtedly be upon prosecution, but the nature and amount of evidence to be led by it to establish the charge,

cannot be of the same degree as is required in any other case of circumstantial evidence. The burden

would be of a comparatively lighter character. In view of section 106 of the Evidence Act, there will

be a corresponding burden on the inmates of the house to give cogent explanation as to how crime was committed. The inmates of the house cannot

get away by simply keeping quiet and offering no

explanation.

It was further held that

"where accused is alleged to have committed murder of his wife and prosecution succeeds in

leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where husband also, normally resides, it has been

1 (2006) 10 SCC 681

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consistently held that if accused does not offer any explanation as to how the wife received injuries or

offers explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime".

21. In the instant case there is absolutely no explanation

offered by the appellant as to the cause of homicidal death of

Aruna. His defence is simpliciter of denial. Neither in his

statement under Section 313 of Code of Criminal Procedure nor

in cross-examination of prosecution witnesses, any effort is made

by the appellant to explain the cause of Aruna's death. Thus,

mere denial of the prosecution case coupled with the absence of

any explanation offered by the appellant is inconsistent with his