Harshid S/O Dhiren Mistri (In ... vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 3621 Bom

        apeal231.14                              1




                                                                                     
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                             
                           NAGPUR BENCH, NAGPUR

                           CRIMINAL APPEAL NO.231 OF 2014.




                                                            
       APPELLANT:                  Harshid s/o Dhiren Mistri,
                                   aged about 50 years, Occu:
                                   Cultivation, r/o Jai Nagar, Tq.




                                             
                                   Chamorshi, Distt.Gadchiroli.
                             
                                                : VERSUS :

       RESPONDENT:       State of Maharashtra,
                            
                         through Police Station Officer,
                         Police Station, Chamorshi, Distt.
                         Gadchiroli.
      


       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
       Mr.R.M.Daga, Advocate for the appellant.
   



       Mr.C.A.Lokhande, Addl.Public Prosecutor for the State.
       =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-





                                      CORAM:      B.R.GAVAI AND 
                                                             V.M.DESHPANDE, JJ.

DATE: 7st JULY, 2016.

ORAL JUDGMENT (Per V.M.Deshpande, J.)

1. Being aggrieved by the judgment and order of

conviction passed by the learned Sessions Judge, Gadchiroli,

convicting the appellant for the offence punishable under Section

302 of the Indian Penal Code in Session Case No.84 of 2012 on

20th of January, 2014 and sentencing him for life imprisonment

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

to undergo simple imprisonment for one month, the appellant is

before this Court.

2.

The prosecution case, as it is unfurled during the course

of trial, is as under -

When Bapuji Sayam (PW 10), Head Constable,

attached to Police Station Chamorshi was discharging his station

diary duty on 22nd of May, 2012, the appellant came in the Police

Station and gave oral report. The said oral report was reduced

into writing and it is at Exh.44. Shri Sayam registered an

accidental death vide A.D.No.25 of 2012. The gist of the said oral

report of appellant is that his second wife deceased Mamta

committed suicide by hanging in the house.

3. Adinath Gawde (PW 11), P.S.O. of Police Station

Chamorshi made an enquiry in A.D.No.25 of 2012. In that

respect, he went to the house of the appellant. He had seen the

dead body of Mamta hanging in the house. He prepared spot

panchanama (Exh.16). He also seized some articles. He took

down the dead body of Mamta. Thereafter, he prepared inquest

panchanama in presence of panchas. Inquest Panchanama is at

Exh.12. He then sent dead body for Post Mortem to Rural

Hospital, Chamorshi.

4. On 23rd of May, 2012, Sapan Gharami (PW 2), the

brother of the deceased, came to the Police Station and gave oral

report that it is the appellant who is responsible for the death of

Mamta. The oral report is at Exh.14. On the basis of the said, a

Crime was registered against the appellant and his first wife

Bedana for the offence punishable under Sections 302, 201 read

with Section 34 of the Indian Penal Code. Both the accused

persons were arrested.

During the Police Custody Remand (PCR) the appellant

made a disclosure statement (Exh.25) by which he agreed to show

the place where he had concealed his clothes. Accordingly, the

police party went to the house of the appellant and from backyard

of his house, near toilet, from a pit the clothes were seized as per

seizure panchanama at Exh.26. The seized articles were sent to

the Chemical Analyzer. Chemical Analyzer's report was received.

After completion of the investigation, he filed Charge-sheet against

the appellant and his first wife Bedana in the Court of Judicial

Magistrate (F.C.), Chamorshi. The learned Magistrate found that

the offence is exclusively triable by the Court of Sessions therefore

he committed the case to the Court of Sessions.

5. A Charge was framed against the present appellant and

his first wife Bedana for the offence punishable under Sections

302, 201 read with Section 34 of the Indian Penal Code. Both the

accused denied the charge and claimed for their trial. The

prosecution examined in all eleven witnesses and also relied upon

documents proved during the course of the trial. The learned

Session Judge by the impugned judgment acquitted co-accused

Bedana, however, convicted the appellant as observed in opening

paragraph of this judgment.

6. We have heard Shri R.M.Daga, the learned counsel for

the appellant and Shri C.A.Lokhande, the learned Additional

Public Prosecutor for the State. Both of them took us through the

notes of evidence and record and proceedings of the Session case.

The main submission of the learned counsel for the appellant is

that the death in question is not homicidal one but it is suicidal

one. In order to buttress his submission, he invited our attention

to the inquest panchanama (Exh.12) and also Post Mortem Report

(Exh.30), in general, more particularly Column NO.20, to show

that larynx, Trachea and Bronchi are congested and they were

found intact. He, therefore, submitted that as per medical

jurisprudence this is only because Mamta has committed suicide.

He has also attacked on the evidence of PW 7 Supriya, daughter of

deceased Mamta, that she cannot be trusted. He, therefore,

submits that appeal be allowed.

Per contra, learned Additional Public Prosecutor Shri

Lokhande supported the impugned judgment by submitting that

the dead body was found inside the house of the appellant and

therefore in view of Section 106 of the Evidence Act, since no

explanation whatsoever was offered by the appellant, he was

rightly convicted by the Court below.

7. The first question that is required to be decided by the

Court is about the the nature of the death since the learned

counsel for the appellant has seriously disputed about its nature.

The learned counsel invited our attention to the Inquest

Panchanama (Exh.12) which recites that "ia p kps o ek>s er vls

vkgs dh xGQkl ?ks o w u e` R ;w >kyk vlkok". On the basis of such,

one cannot jump to the conclusion that it is suicidal death. In

that view of the matter, we will have to scrutinize the medical

evidence.

8. PW 8 is Dr.Bidhan Deuri. At the relevant time he was

working as a Medical Officer and was attached to Rural Hospital,

Chamorshi. On 22nd of May, 2012 dead body of Mamta was sent

to him for Post Mortem. He conducted Post Mortem. He found

following injuries on her person :-

i) Multiple abrasion (crescentic) irregularly

distributed present over right side of cheek.

ii) multiple abrasion 2 x ½ cm., 5 in number,

below the chin.

iii) multiple abrasion about 1 x ½ cm. , 7 in number, present over right side of chest on

mid clavicular line near nipple distributed irregularly.

iv) multiple abrasion 1 x ½ cm. , 3 in number present over left shoulder joint distributed antero laterally.

According to him, he had seen blackish brown, dry, hard ligature

mark about 28 x 2 x ½ cm. present round the neck situated above

the level of thyroid cartilage between the larynx and chin. The

ligature mark was directed obliquely upward and complete. He

had also seen knot mark 4 x 3 cm. present over right side nape of

neck about 5 cm. from the right mastoid region and also

horizontal ligature mark 5 x 2 x ½ cm. was present over right side

neck from thyroid cartilage. He had also seen abrasion (multiple)

about 3 x 2 cm. , 4 in number, present near ligature mark above

and below irregularly distributed. According to the Autopsy

Surgeon, the dissection of ligature mark revealed haemorrhage

with fracture of hyoid bone infront of neck. According to him, the

injuries were ante mortem except hanging ligature mark.

According to the Autopsy Surgeon, the death was due to

asphyxia as a result of manual strangulation (throttling). Though

at the time of giving Post Mortem report (Exh.30) a final opinion

was reserved till receipt of Chemical Analyzer's report, at the time

of evidence of Dr.Bidhan C.A.report (Exh.22) was shown to him

and on perusal of the said he gave his opinion that the death was

due to throttling.

In view of the evidence of Dr.Bidhan, which remained

intact on every aspect, we are of the opinion that the learned

Judge of the Court below was right in reaching to the conclusion

that the death was homicidal one and not suicidal as tried to be

argued before this Court by the learned counsel for the appellant.

9. Section 106 of the Evidence Act reads as under :-

"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."

10. It is an admitted position that the deceased was second

wife of the appellant. His first wife was co-accused Bidhan. The

report lodged by the appellant (Exh.44) and the other evidence

shows that the appellant along with his two wives used to reside

in a same house, however, in different rooms. According to the

report (Exh.44) there was a quarrel in between his two wives and

therefore, he slapped both of them and directed that they should

go to their respective rooms. The report further states that

thereafter the appellant went in the room of the deceased Mamta

and slept there. According to the report, on 22nd of May, 2012

she was found to be dead. PW 7 Supriya is daughter of deceased

Mamta. Her evidence would reveal that her mother was assaulted

by the appellant and her step-mother advised her to sleep.

11. The clothes of the appellant were discovered from the

place which was exclusively in know of the appellant. Those were

sent to Chemical Analyzer. Human blood was found on the said

clothes. No explanation is offered by the appellant. The map of

the occurrence is also available on record. The said map was

prepared by the revenue authorities in view of the requisition

(Exh.60) given by the Investigating Officer to revenue officials.

The map is at Exh.61. It shows that the dead body was found

hanging inside the house which was in exclusive control of the

appellant. Even, according to the appellant himself, on 21 st of

May, 2012 in the night he slept in a room where Mamta slept.

Thus, lastly Mamta was in the company of the appellant and on

the next day when her dead body was found inside the house it

was but expected from the appellant to give an explanation of the

same. Therefore, in our view, the Court below was right in

convicting the appellant. Hence, we pass the following order.

-ORDER-

Appeal stands dismissed.

                      JUDGE                                            JUDGE





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