Bombay High Court
Pradeep S/O Dinbandhu ... vs The State Of Maharashtra, Through ... on 28 June, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.603/2013
Pradeep s/o Dinbandhu Chakaladhar,
aged 28 years, Occ. Labour, r/o Dhangaon,
Post Tatapani, Tq. Balrampur, Dist. Surgaja,
Chattisgarh.
At present c/o Nathuji Shrawan Khairkar,
at Mandva, Dist. Wardha.
(Presently in Central Prison, Nagpur) ...APPELLANT
ig ...V E R S U S...
The State of Maharashtra through,
PSO P. s. Kharangana, Dist. Wardha. ...RESPONDENT
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Mr. R. M. Daga, Advocate for appellant.
Mr. T. A. Mirza, A.P.P. for respondent.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :-
JUNE 28, 2016
J U D G M E N T (Per : V. M. Deshpande, J.)
1. The appellant is questioning his conviction and
consequent sentence imposed upon him by the learned Sessions
Judge, Wardha dated 19.09.2013 in Sessions Trial No.6/2012 by
which he is convicted for the offence punishable under Section 302
of the IPC and is directed to suffer imprisonment for life and to pay
a fine of Rs.1,000/- in default to suffer rigorous imprisonment for
one month. He is also convicted for the offence punishable under
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Section 201 of the IPC and on that count, is directed to suffer
rigorous imprisonment for two years and to pay a fine of Rs.1,000/-
in default to suffer rigorous imprisonment for one month, the
appellant is before this Court.
2. We have heard Mr. R. M. Daga, learned counsel for the
appellant and Mr. T. A. Mirza, learned A.P.P. for the State. Both of
them took us through in detailed, notes of evidence and record and
proceedings of the sessions trial.
According to the learned counsel for the appellant, the
present case is based on the circumstantial evidence. Therefore, the
prosecution was obliged to prove each circumstance leading to the
guilt of the appellant beyond reasonable doubt. He submitted that
the prosecution has utterly failed to prove his presence at the spot
at the time proximate to the occurrence of the crime. He submitted
that the learned Judge of the Court below has wrongly convicted
the appellant by taking recourse to the provisions of Section 106 of
the Indian Evidence Act. He therefore submitted that the appeal
may be allowed.
Per contra, it is submitted by the learned A.P.P. that
though the case is based on circumstantial evidence, the appellant
being resident of that house, his presence in the proximity of the
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occurrence of the incident can be presumed. He, therefore,
submitted that the learned Judge of the Court below was right in
convicting the appellant.
3. The appellant faced the charge that in the intervening
night of 25.09.2011 and 26.09.2011, at the house of his landlord
Natthuji Shrawan Khairkar at village Mandva, Dist. Wardha, he has
committed murder of one Rajlaxmi who was residing with him as
wife by throttling and smothering and thereby he has committed an
offence punishable under Section 302 of the IPC. He was also
charged for screening himself from the legal punishment. He hid
her dead body in the latrine of the house and thereby committed an
offence punishable under Section 201 of the IPC.
4. Dr. Indrajit Khandekar (PW1) received the dead body on
26.09.2011 through Police Station, Sevagram. The dead body was
of a woman and her identity was given as Nilima Mandal. He
conducted the post mortem on the dead body. He found 13 injuries,
which are as under:
"1. A contusion is present on lower border of
left side of mandible of size 4 cm X 1.3 cm. horizontal
in direction, reddish in colour. It is 3 cm lateral to the
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midpoint.
2. Contusion of size 2.3 cm X 1.1 cm with
crescentic abrasion on upper side involving left
maxillary area. Upper end is 1.3 cm. below the lateral
to left nostril. Oblique in direction upper end on
medial side. Reddish in colour.
3. Contusion with crescentic abrasions at
places present vertically over midline of the neck, size
5 cm X 4.8 cm. Upper border is 3 cm below the chin
Reddish in colour.
4.
Multiple crescentic marks (4 in no.)
(abrasion) involving right side of the neck (middle
portion) which is 3.5 cm. away from the mid line.
Reddish in colour.
5. On right side of neck just lateral to the
windpipe (around 1 cm) on its upper portion, there is
contusion of size 5 cm X 2 cm, vertical in direction.
Reddish in colour.
6. Contusion of size 4.5 cm X 3 cm is present
involving posterior 1/3rd of the lower border of the
right side of mandible & right angle of the mandible,
Horizontal in direction. Reddish in colour.
7. Both angle of Mouth shows contusion
involving the surrounding area of size around 1-2 cm
which is confirmed by giving incision to it. On incision
subcutaneous tissue shows infiltration of blood.
Reddish in colour. Consistent with application of force
to mouth.
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8. Middle portion of left upper limb, dorsal
aspect shows contusion of size around 4 cm X 3 cm.
suggestive of application of force. Reddish in colour.
9. 2nd small toe of right leg shows abrasion of
size 0.5 cm X 0.5 cm reddish colour.
10. Left knee on lateral aspect shows 3 abraded
contusion of size ranging from 0.8 cm X 0.4 cm to 0.6
cm X 0.3 cm. Reddish in colour.
11. Left foot, lower dorsum aspect, shows 3
abrasions of size around 1 cm X 0.3 cm. each. Reddish
in colour.
12.
Three imprint contusion are present on the
anterior aspect of lower half of the right thigh slightly
oblique in direction, upper ends are towards left side.
Size are 4.6 cm X 0.7 cm, 5 cm X 1 cm, 4 cm X 1.2 cm.
margins are blurred. Bluish in colour.
13. On anterior aspect of right leg (sheen)
three contusion marks present on the middle portion
of the sheen, size around 1.5 cm X 1 cm each.
Margins are blurred. Bluish in colour."
According to the autopsy surgeon, the cause of death
was asphyxia (lack of oxygen to the brain) due to constriction of
neck & mouth due to throttling & smothering. In view of the
evidence of Dr. Khandekar and post mortem report Exh.18, there
cannot be any doubt about the nature of death.
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5. The question i.e. is posed before this Court in this appeal
is whether the prosecution has successfully established beyond the
reasonable doubt that it is the appellant, who is responsible for the
homicidal death of the deceased.
Nobody has seen who has committed the murder. The
case is fully based on the circumstantial evidence. According to
Devashish Bairagi (PW8) who is resident of Damodarpur, Dist.
Surgaja, Chattisgarh, he has two sisters. One is Nilima, who is alive
and one is Rajlaxmi. According to his evidence before 1½ years,
Rajlaxmi informed him that she has married with one Pijush
Mandal. As per the evidence of Radhabai Khairkar (PW3), in
whose house the appellant was residing as tenant, the name of the
wife of the appellant was Nilima. The evidence of Devashish (PW8)
shows that police brought him to the hospital in Maharashtra. He
has identified the dead body as Rajlaxmi.
6. Radhabai Khairkar (PW3), who is landlord of the
appellant was not present in the village Mandva on the date of the
incident. She along with her husband was at Wardha. One
Dr.Parashram Burbure (PW4) intimated her on phone that Nilima,
who was residing in her house as a tenant, has expired. Therefore,
she along with her husband came to the house.
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The dead body was found in the latrine. Dr. Parashram,
who is a Medical Practitioner and who is neighbour of Khairkar
family corroborates the fact that the appellant used to reside as a
tenant in the house of Khairkar along with his wife. His evidence
shows that early morning on 25.09.2011, a person gave him call as
"Kakaji, Kakaji" and therefore he opened the door to notice that
the appellant was standing in front of his house. According to the
evidence of Dr. Parashram, the appellant informed him that his
wife has expired in the latrine. Therefore, he took the battery and
visited the house and in the light of the torch, he noticed that the
dead body of his wife was lying in the latrine. According to his
evidence, the other persons of the locality also gathered. Police
Patil of the village came there and intimated this fact to the police
station.
7. Accidental Death No. 28/2011 under Section 174 of the
Cr.P.C. was registered and the spot panchanama Exh.-34 was
drawn on 26.09.2011. Jagdish Hatwar (PW7) a Head Constable
has conducted the enquiry in A.D.No.28/2011 on the basis of the
report lodged by appellant at Exh.-45. According to Jagdish
Hatwar, during the enquiry of accidental death, the present
appellant confessed before him that he has committed murder of
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his wife. Therefore, Jagdish Hatwar gave written report Exh.-47 to
the Police Station Officer, P. S. Kharangana.
Ulhas Bhusari (PW9), Police Station Officer, Kharangana
received the report Exh.-47 and on the basis of the same, he
registered an offence punishable under Section 302 of the IPC
against the appellant. He himself took the investigation.
During the course of investigation on 27.09.2011, he in
presence of pancha witness Purushottam Shende (PW2) seized the
cotton smeared with blood from the spot vide seizure memo, Exh.-
23. He also seized the clothes of the deceased under seizure memo
Exh.24. Similarly, vide seizure memos, Exh.25 and 26, he seized
the blood samples of the appellant and clothes of the appellant
respectively on 28.09.2011. He again prepared spot panchanama
on 27.09.2011 vide Exh.-34 in presence of Sudhir Bawne (PW5)
and another pancha Mahendra Parimal. As claimed by Ulhas
Bhusari, the appellant made statement, Exh.-39 on 29.09.2011 and
thereby agreed to show the place where he has concealed the stick.
The recovery panchanama is at Exh.-40, showing the recovery of
stick at the instance of the appellant.
8. Neither Radhabai, the landlady nor Dr. Parshuram, the
neighbour stated that at any point of time they had noticed any
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discord in between the appellant and the deceased. Their evidence
is completely silent on the said aspect. There was no reason for
these two independent prosecution witnesses to conceal anything
even if there was a discord in between the couple. In that view of
the matter, we can safely reach to a conclusion that the couple was
leading a happy life.
9. Motive plays an important role in a case solely based on
the circumstantial evidence. No doubt that the motive is always in
the mind of the perpetrator of the crime, however, it is the duty of
the prosecution to establish certain facts and circumstances by
which the Court could reach to a conclusion that there exists a
motive in the mind of the perpetrator of the crime for commission
of the offence.
10. The inquest panchanama is dated 26.09.2011 and it is at
Exh.-35. Similarly, the spot panchanama Exh.-34 is dated
26.09.2011 and it was drawn in presence of Dr. Parashram. The
evidence of Dr. Parashram shows that after the police came to the
house of the appellant, they prepared the panchanama of latrine
and also of his house. This particular fact is put on record in the
examination-in-chief of Dr. Parashram. Thus, it is crystal clear that
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on 26.09.2011 itself, the police have visited the place and after
investigation, panchanama was prepared. In that view of the
matter, the memorandum statement made by the appellant Exh.-39
under Section 27 of the Indian Evidence Act on 28.09.2011 and the
consequent recovery of the stick vide recovery panchanama Exh.-28
as claimed by Ulhas Bhusari (PW9), the Investigating officer loses
its importance.
11.
Crime No.58 was registered on the basis of the report
Exh.-47. This report is given by Jagdish (PW7), who was
conducting the accidental death proceeding 28/11. The said report
discloses that the present appellant has given confession to Jagdish
(PW7) that he has committed murder of his wife and he has given
his false name in his report Exh.-45. Thus, the murder is registered
mainly on the basis of the confession made by the appellant before
a police officer. Confession made by an accused before a police
officer is inadmissible in view of Section 25 of the Indian Evidence
Act.
The learned counsel for the appellant placed reliance on
a reported judgment of this Court in Sunil s/o Latari Khuje ..vs..
The State of Maharashtra; 2016 ALL MR (Cri) 2212 to which one
of us (Hon'ble Shri Justice B. R. Gavai) is a party, to submit that the
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appellant cannot be convicted by applying the provisions of Section
106 of the Indian Evidence Act.
12. Radhabai Khairkar was at Wardha along with her
husband. Therefore, it cannot be expected of her that she will
throw any light in respect of the presence of the appellant on
25.09.2011.
Dr. Parashram (PW4) a Medical Practitioner is
neighbour. The crime is committed at village Mandva. According
to Dr. Parashram on 25.09.2011, he was at his house. His evidence
is completely silent about the presence of the appellant in the
village on 25.09.2011. Had the appellant been present in his house
at village Mandva on 25.09.2011, this fact must not have been
missed by Dr. Parashram (PW4) at the time of his evidence before
the Court.
13. The prosecution was having bounden duty to prove the
physical presence of the appellant at his house on 25.09.2011. It is
to be noted that the dead body of the deceased was not found in
the house of the appellant. It was found in the latrine, which is not
the part and parcel of his house. The said latrine was accessible to
everybody else. The appellant was not having exclusive control and
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domain over the said place. Further, at the time of preparation of
the spot panchanamas Exh.-34 and Exh.-37, there is nothing to
show that any incriminating things were noticed and/or found by
the police officers to show that inside the house the lady was done
to death and thereafter her body was shifted to the latrine to screen
himself from legal punishment.
Once on the basis of the evidence, it could be safely said
that the prosecution has failed to show the presence of the
appellant at the time proximate to the occurrence of the crime, in
our view, the provisions of Section 106 of the Evidence Act, cannot
be applied. The case being based on the circumstantial evidence,
each circumstance leading to the guilt of the appellant is required
to be proved independently and beyond reasonable doubt. When
the prosecution was unable to bring satisfactory evidence in respect
the presence of the appellant near the scene of the occurrence, it
being a major link in the chain of the circumstances, we have no
doubt in our mind to record a finding that the prosecution has
failed to prove the guilt of the appellant.
14. The upshot of the above discussion leads us to pass the
following order.
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ORDER
(i) Criminal Appeal No 603/2013 is allowed.
(ii) The judgment and order dated 19.09.2013
in Sessions Case No. 6/2012 is quashed and set aside.
(iii) The appellant be set at liberty forthwith, if
not required in any other case.
(V. M. Deshpande) (B. R. Gavai)
kahale
