Kantya Gunya Wagh vs The State Of Maharashtra
2017 Latest Caselaw 1620 Bom

                                                                            22. cri apeal 1423-11 (j).doc


RMA      
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL APPEAL NO. 1423 OF 2011


            Kantya Gunya Wagh
            Age - 30 Years, Occ. - Labour,
            R/at Kasara, Dist. Thane.

            (At present lodged in Nashik Road
             Central Prison, Nashik)                                      .. Appellant
                                                                               (Org. Accused)
                                 Versus
            The State of Maharashtra
            Through Kasara Police Station,
            Dist. Thane.                                                  .. Respondent

                                                  ...................
            Appearances
            Ms. Rohini Dandekar Advocate (appointed) for the Appellant
            Mrs. G.P. Mulekar   APP for the State
                                                   ...................



                              CORAM       : SMT. V.K. TAHILRAMANI &
                                              M.S. KARNIK, JJ.

DATE : APRIL 11, 2017.

ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

1. This appeal is preferred by the appellant-original

accused against the judgment and order dated 30.11.2010

passed by the learned Additional Sessions Judge, Kalyan in

Sessions Case No. 25 of 2007. By the said judgment and

order, the learned Session Judge convicted the appellant for

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the offence punishable under Section 302 of IPC and

sentenced him to suffer imprisonment for life and fine of Rs.

500/-, in default R.I. for 3 Months.

2. The prosecution case briefly stated, is as under:

(a) The appellant was residing with Sunita @

Mondibai (deceased) as husband and wife. They

were residing in Shivaji Nagar, Kasara, District

Thane. Both the appellant and Mondibai were

labourers. PW 3 Thami was the cousin sister of

Mondibai. Her house was situated close to the

house in which the appellant and the deceased

were residing. The appellant was suspecting the

character of Mondibai. The appellant was

addicted to liquor and used to frequently pick up

quarrels with Mondibai. PW 4 Geetabai was the

aunt of Mondibai. Her cattle shed was situated

close to the house of the appellant and Mondibai.

PW 6 Kalubai was the elder sister of deceased

22. cri apeal 1423-11 (j).doc

Mondibai. Kalubai has stated that her sister

Mondibai had informed her that the appellant

used to suspect her fidelity and he used to beat

her.

(b) According to the prosecution, the incident

occurred in the night between 15.9.2006 and

16.9.2006. In the morning at about 6.00 a.m.,

PW 4 Geetabai gave a call to Mondibai, however,

there was no response. Thereafter, Geetabai saw

the appellant near the riverside. She asked him

whereabouts of Mondibai. Thereupon, the

appellant told Geetabai that he had broken the

head of Mondibai. Geetabai informed this fact to

PW 3 Thami. Thami was the cousin sister of

Mondibai. Thami then went to the house of

Mondibai. After going to the house of Mondibai,

she saw Mondibai lying dead with injuries on her

head, hence, she lodged FIR Exh. 18. Thereafter,

investigation commenced. It is the prosecution

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case that the appellant assaulted Mondibai with

an iron rod on the head and other parts of the

body and caused her death.

(c) The dead body of Mondibai was sent for

postmortem. PW 7 Dr. Dhanke performed the

postmortem on the dead body of Mondibai.

According to Dr. Dhanke, the probable cause of

death was head injury and the death was

unnatural and the injuries found on the body of

Mondibai were possible by a blow with iron rod.

(d) The appellant was arrested on 16.9.2006. At the

time of arrest, his shirt and pant was found

stained with blood. These were seized under

panchnama Exh. 34. After completion of

investigation, the charge sheet came to be filed.

3. Charge came to be framed against the appellant -

original accused under Section 302 of IPC. The appellant-

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accused pleaded not guilty to the said charge and claimed

to be tried. His defence was that of total denial and false

implication. After going through the evidence adduced in

this case, the learned Sessions Judge convicted and

sentenced the appellant as stated in paragraph 1 above,

hence, this appeal.

4. We have heard the learned Advocate for the appellant

and the learned APP. After giving our anxious consideration

to the facts and circumstances of the case, arguments

advanced by the learned counsel for the parties, the

judgment delivered by the learned Sessions Judge and the

evidence on record, for the reasons stated below, we are of

the opinion that there is no merit in the appeal.

5. There is no eye witness in the present case and the

case is based entirely on circumstantial evidence. The

circumstances against the appellant are as under:

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i. Motive;

ii. Extra Judicial Confession to PW 4 Geetabai;

iii. At the time of arrest, the clothes on the person

of the appellant were stained with blood;

iv. The appellant and the deceased were the only

persons residing in the house and the

appellant has not explained the circumstances

in which Mondibai died i.e the appellant has

not discharged the burden under Section 106

of the Evidence Act.

6. PW 3 Thami was the cousin sister of deceased

Mondibai. She has stated that Mondibai was residing near

her house along with her husband i.e the appellant.

Whenever Thami and Mondibai used to go to jungle to bring

firewood, Mondibai used to tell Thami that the appellant was

suspecting her fidelity. Mondibai also used to tell her that

the appellant used to come home in an intoxicated state and

used to quarrel with her. PW 6 Kalubai has also deposed

about the motive. Kalubai was the sister of Mondibai. She

was residing in Umbarmali in District Thane. She has stated

that the marriage of her sister Mondibai and the appellant

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had taken place about two years prior to the incident. After

the marriage, the appellant was in jail, hence, her sister

Mondibai had come to her house. At that time, her sister

Mondibai informed her that the appellant used to suspect her

fidelity and used to beat her. Thus, the evidence of both the

witnesses i.e PW 3 Thami and PW 6 Kalubai shows that the

appellant was suspecting the fidelity of Mondibai. Thus, the

evidence of PW 3 Thami and PW 6 Kalubai shows the motive

for the crime.

7. PW 4 Geetabai has deposed about extra judicial

confession by the appellant to her. Geetabai has stated that

in the morning at about 6.00 a.m., she was going to her

cattle shed. The house of Mondibai and the appellant was

situated near the cowshed. At that time, her daughter-in-law

told her to send Thami and Mondibai at the earliest to go to

Amboli for selling vegetables. Therefore, Geetabai gave a

call to Mondibai but Mondibai did not give any response.

Thereafter, she saw the appellant near the riverside. She

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asked the appellant about whereabouts of Mondibai.

Thereupon, the appellant told her that he had broken the

head of Mondibai.

8. Accepting the admissibility of extra judicial confession,

the Supreme Court in the case of Sansar Chand Vs. State

of Rajasthan1 has observed thus:

"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [ Vide Thimma and Thimma Raju V. State of Mysore - (1970) 2 SCC 105 : 1970 SCC (Cri) 320 : AIR 1971 SC 1871, Mulk Raj Vs. State of U.P. - AIR 1959 SC 902 : 1959 Cri. L.J. 1219, Sivakumar Vs. State - (2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470 : AIR 2006 SC 653 (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari Vs. State of Maharashtra (2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320 and Mohd. Azad Vs. State of W.B. - (2008) 15 SCC 449 : (2009) 3 SCC (Cri) 1082 : AIR 2009 SC 1307.

The circumstance of extra judicial confession is

corroborated by finding of blood stained clothes on the

person of the appellant at the time of his arrest and the

other circumstances in this case. Thus, this is the second

circumstance against the appellant.

1 (2010) 10 SCC 604

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9. In relation to the third circumstance, PW 8 Sandip

Karnik has stated that on 16.9.2006, the appellant was

arrested from jungle. Arrest panchnama Exh. 34 was drawn.

The evidence on record shows that when the appellant was

arrested, the pant and shirt on his person were stained with

blood. These clothes came to be seized and thereafter sent

to C.A. The C.A. report Exh. 38 shows that the shirt and pant

were both stained with human blood. In this connection, we

may usefully refer to the decision of the Supreme Court in

the case Gura Singh Vs. State of Rajasthan2, wherein it

has been observed as under :

" In view of the authoritative pronouncement of this Court in Teja Ram Case (1999) 3 SCC 507) we do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the 'origin of the blood, the trial Court could not have convicted the accused. The Serologist & Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood.

As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the 2 (2001) 2 SCC 205

22. cri apeal 1423-11 (j).doc

circumstance as proved beyond doubt against the appellant."

Similar view has been taken by the Supreme Court in

the cases of R. Shaji Vs. State of Kerala 3, Molai & Anr. Vs

State of Madhya Pradesh.4 and Khujji @ Surendra Tiwari Vs.

State of Madhya Pradesh5. Thus, this is another

circumstance against the appellant.

10. The last circumstance against the appellant is that the

evidence on record shows that only the appellant and the

deceased were residing in the house. The evidence of PW 4

Geetabai shows that her cattle shed was situated near the

house of the appellant. PW 4 Geetabai has stated that on

the earlier evening, she saw Mondibai was cooking in the

house and the appellant was picking up vegetables.

Thereafter, Geetabai went home. The next morning at

about 6.00 a.m., when Geetabai was going to the cattle

shed, her daughter-in-law told her to sent Thami and

3 (2013) 14 SCC 266 4 1999(9) SCC 581 5 AIR 1991 SC 1853

22. cri apeal 1423-11 (j).doc

Mondibai at the earliest to go to Amboli for selling

vegetables. Therefore, Geetabai gave a call to Mondibai but

Mondibai did not give any response. Thereafter, Geetabai

saw the appellant near the riverside and on making inquiry

with the appellant about whereabouts of Mondibai, the

appellant told Geetabai that he had broken the head of

Mondibai. Geetabai then informed PW 3 Thami, the sister of

Mondibai. When Thami went to the house of the appellant

and Mondibai, she saw Mondibai lying in an injured condition

and she was dead. Thus, the evidence of PW 4 Geetabai

shows that on the earlier evening, the appellant and the

deceased were very much present in the house and on the

next morning, the dead body of Mondibai was found in the

house. In such case, Section 106 of the Evidence Act would

come into play.

11 Section 106 of the Evidence Act provides that when any

fact is especially within the knowledge of any person, the

burden of proving that fact is upon him. In several recent

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decisions, the Supreme Court has held that the principle

which underlies Section 106 of the Evidence Act can be

applied in similar cases. In the case of State of Rajasthan

Vs. Kashi Ram6, the Supreme Court has observed that if the

accused fails to offer an explanation on the basis of facts

within his special knowledge, he fails to discharge the burden

cast upon him by Section 106 of the Evidence Act. In a case

resting on circumstantial evidence if the accused fails to

offer a reasonable explanation in discharge of the burden

placed on him, that itself provides an additional link in the

chain of circumstances proved against him. Section 106

does not shift the burden of proof in a criminal trial, which is

always upon the prosecution. It lays down the rule that

when the accused does not throw any light upon facts which

are specially within his knowledge and which could not

support any theory or hypothesis compatible with his

innocence, the Court can consider his failure to adduce any

explanation as an additional link which completes the chain.

The appellant has not furnished any plausible explanation

6 (2006)12 SCC 254 : AIR 2007 SC 144

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regarding in what circumstances Mondibai was found dead in

his house.

12. That the deceased died a homicidal death is brought

out in the evidence of PW 7 Dr. Dhanke. Dr. Dhanke has

stated that she conducted postmortem on the dead body of

Mondibai. On external examination, she found the following

injuries on the person of the deceased:

1) C.L.W. over left wrist, size 3 x 2 cms;

2) Contusion and C.L.W. over left orbital region, 3 x 2 cms

deep with palpable fracture of left temporal bone;

3) C.L.W. over left mastoid and occipital region, approx. 7 x 4

cms with exposed brain tissues with compound fracture of

occipital bone;

4) Contusion over left temporal region approx 4 x 4 cms;

5) Contusion over right tempo-parietal region, approx. 6 x 4

cms.

On internal examination, Dr. Dhanke found the

following injuries:-

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1) Contusion over left tempo-parietal region of brain, 6 x 4

cms approx;

2) Compound fracture of left tempo-parietal region with

mastoid and occipital bone;

3) Hematoma on brain over left temporal region approx. 6 x 4

cms.

Dr. Dhanke has stated that looking to the external and

internal injuries, the probable cause of death was head injury

and it was unnatural. Dr. Dhanke has further stated that the

injuries found on the deceased are possible by a blow with

iron rod. Thus, the medical evidence further corroborates

the prosecution case.

13. PW 8 Santosh Karnik has stated about seizure of iron

rod during the spot panchnama. He has stated that from the

spot, one iron rod, pieces of bangles and blood stained

clothes were seized. There were blood stains on the iron rod.

The iron rod came to be seized. The spot panchnama is at

Exh. 14. This iron rod was sent to C.A. As per C.A. report,

the iron rod was stained with human blood.

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14. On going through the evidence, we are of the opinion

that the prosecution has proved its case against the

appellant beyond reasonable doubt. Thus, we find no merit

in the appeal. The appeal is dismissed.

15. Office to communicate this order to the appellant who

is in Nashik Road Central Prison, Nashik.

16. The fees to be paid to the appointed Advocate Ms.

Rohini Dandekar are quantified at Rs. 10,000/-.

[ M.S. KARNIK, J. ] [ SMT. V.K. TAHILRAMANI, J. ]