Babu Janardan Fale And Ors vs The State Of Maharashtra
2017 Latest Caselaw 6666 Bom

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

                                CRIMINAL APPEAL NO. 34 OF 2015


            1. Babu Janardan Fale,
            2. Janardan Babu Fale,
            3. Saraswati Janardan Fale
               All resident of Napane Dhangarwadi,
               Taluka Vaibhavwadi,
               Dist. Sindhudurg.

            [ At present lodged in Kolhapur Central
            Prison, Kalamba, Kolhapur. ]                                          .. Appellants
                                                                                     (Org. Accused 1 to 3)
                                 Versus
            The State of Maharashtra
            (At the instance of Vaibhavwadi Police
             Station, Dist. Sindhudurg.)                                          .. Respondent

                                                   ...................
            Appearances
            Ms. Rohini M. Dandekar Advocate (appointed) for the Appellants
            Mr. Arfan Sait         APP for the State
                                                       ...................



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

DATE : AUGUST 31, 2017.

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

1. This appeal is preferred by the appellants-original

accused Nos. 1 to 3 against the judgment and order dated

28.4.2014 passed by the learned Sessions Judge,

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Sindhudurg-Oros in Sessions Case No. 40 of 2013. By the

said judgment and order, the learned Session Judge

convicted the appellants for the offence punishable under

Section 302 r/w 34 of IPC and sentenced them to suffer life

imprisonment and fine of Rs. 500/-, in default R.I. for one

month. The learned Sessions Judge also convicted the

appellants for the offence punishable under Section 201 r/w

34 of IPC and sentenced them to rigorous imprisonment for

one year and fine of Rs. 200/- in default R.I. for fifteen days.

The learned Sessions Judge directed that all the sentences

shall run concurrently.

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

(a) The marriage of deceased Anjana with appellant

No. 1 - Babu took place on 20.4.2013. Appellant

and appellant No. 3 - Saraswati is the mother of

appellant No. 1. After the marriage, Anjana's

name was changed to Akshata. After the

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marriage, Anjana started residing with her

husband and in-laws i.e all the three appellants at

Village Napane, Dhangarwadi. After the marriage,

Anjana used to come to the house of her mother

i.e PW 1 Anandi. Anjana used to tell her mother

that her husband and in-laws were taunting her on

account of suspicion regarding her character.

(b) On 17.7.2013 i.e one day before the incident, PW

1 Anandi went to the matrimonial house of

Anjana. That time, Anjana told her that her

husband and in-laws repeatedly taunted her and

beaten her.

(c) On 18.7.2013 at about 2.00 p.m., appellant No. 1

informed Janardan Bodake who was the son-in-law

of PW 1 Anandi that Anjana was ill and he asked

them to come to see her. On the same day,

Anandi, her brother-in-law and other family

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members went to Village Napane to the house of

the appellants. They reached the house at about

5.00 p.m. That time, they saw Anjana was dead.

Anjana had sustained burn injuries. On the same

day, PW 1 Anandi lodged FIR at Vaibhavwadi

Police Station. The said FIR is at Exh. 25.

Thereafter, investigation commenced.

             (d)   The       dead     body     of   Anjana    was        sent       for

                   postmortem.        PW 3 Dr. Maharnur conducted the

                   postmortem on the dead body of Anjana.                           He

found that the tongue had protruded out of the

mouth and bloody fluid was oozing from nostrils.

Superficial burns were found on the face and all

over the body. Dr. Maharnur found that all the

burn injuries found on the dead body were

postmortem injuries. He noticed that there were

pressure marks on neck at both side of trachea.

In his opinion, the cause of death was due to

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cardio respiratory arrest due to asphyxia due to

strangulation. This shows that first Anjana was

strangulated and thereafter her body was set on

fire to cause the evidence of crime to disappear.

After completion of investigation, the charge

sheet came to be filed.

3. Charge came to be framed against the appellants -

original accused Nos. 1 to 3 under Sections 302 r/w 34 of IPC,

498-A r/w 34 of IPC and 201 r/w 34 of IPC. The appellants-

accused pleaded not guilty to the said charge and claimed

to be tried. Their 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 appellants as stated in paragraph 1 above,

hence, this appeal.

4.           We    have        heard     the   learned   Advocate           for     the

appellants and the learned APP.                    After giving our anxious



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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 the appellants caused the death of Anjana

by strangulating her and thereafter, they set the dead body

on fire to cause the evidence of crime to disappear.

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

case is based entirely on circumstantial evidence. Two main

witnesses in the present case are PW 1 Anandi - the mother

of deceased Anjana and PW 3 Dr. Maharnur. PW 1 Anandi

has stated that the marriage of Anjana and appellant No. 1

Babu took place on 20.4.2013. After the marriage, Anjana

went to reside with her husband and in-laws i.e the

appellants at Village Napane, Dhangarwadi. After the

marriage, Anjana's name was changed to Akshata. After the

marriage, Anjana used to come to her mother's house and

used to tell her that her husband and in-laws were taunting

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her on account of suspicion regarding her character. Anandi

has further stated that on 17.7.2013 i.e one day before the

incident, she went to the matrimonial house of Anjana. That

time, Anjana told her that her husband and in-laws

repeatedly taunted her and beat her. On 18.7.2013 at about

2.00 p.m., appellant No. 1 informed Janardan Bodake who

was the son-in-law of PW 1 Anandi that Anjana was ill and he

asked them to come to see her. On the same day, Anandi,

her brother-in-law and other family members went to Village

Napane to the house of the appellants. They reached the

house at about 5.00 p.m. That time, they saw that Anjana

was dead. Anjana had sustained burn injuries. On the same

day, PW 1 Anandi lodged FIR at Vaibhavwadi Police Station.

Thereafter, Anandi came to know that Anjana died due to

strangulation, hence, her further statement was recorded by

the police. Thus, the evidence of PW 1 Anandi shows that all

the three appellants had motive to kill Anjana. In addition,

the evidence of PW 1 Anandi shows that though Anjana was

found dead with burn injuries on the body, the cause of

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death was not actually due to burns but due to strangulation.

Obviously Anjana could not have strangulated herself and set

herself on fire. Only Anjana and the appellants were residing

in the house. Moreover, the appellants had motive to kill

Anjana.

6. The evidence of PW 1 Anandi shows that Anjana was

residing with the appellants in her matrimonial house.

Except the appellants, there were no other person in the

house. All the three appellants had motive to kill Anjana. In

addition, it is seen that Anjana died due to strangulation.

Thereafter, the appellants made it seen that Anjana had in

fact died on account of sustaining burn injuries. This is

falsified by the medical evidence.

7. PW 3 Dr. Maharnur conducted the postmortem on the

dead body of Anjana. He found that the tongue had

protruded out of the mouth and bloody fluid was oozing from

nostrils. There were burn injuries on the face, chest, back,

abdomen and other parts of the body. However, Dr.

Maharnur noticed that all the burn injuries found on the body

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were postmortem injuries. Dr. Maharnur noticed pressure

marks on the neck, oval in shape at both side of trachea.

The tongue which had protruded out was also partially burnt.

The cause of death was due to cardio respiratory arrest due

to asphyxia due to strangulation. Dr. Maharnur reached the

conclusion that all the burns found on the dead body were

not ante mortem burns because no blisters were found on

the skin and line of redness which is found when a person

sustains burn injuries when he is alive was not found on the

body of Anjana. In addition, smoke particles which are found

in the case of a victim dying due to burns were not found in

inner tracheal line of Anjana. Dr. Maharnur stated that in

case of suicidal burns, the tongue is found inside the buccal

cavity. Dr. Maharnur categorically stated that suicidal death

is not possible due to strangulation.

8. Though Exh. 40 shows that Anjana had sustained 85%

burns, the evidence of Dr. Maharnur shows that the death

was not on account of burns but on account of strangulation.

As stated earlier, the appellants and Anjana were the only

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persons staying in the house. There were no other persons

residing in the housing. In addition, the appellants had

motive to kill Anjana. Looking to the fact that the appellants

and Anjana were the only persons in the house and Anjana

was found dead in the house, in such case, the appellants

have to explain how the deceased sustained injuries and

died. In this connection, we may refer to Section 106 of the

Evidence Act. 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 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 Ram1, 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

1 (2006)12 SCC 254 : AIR 2007 SC 144

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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. In the present case, none of the

appellants have offered any explanation in relation to the

death of Anjana which took place in their house. This as per

Section 106 of the Evidence Act is a very strong

circumstance against the appellants.

9. In view of the above, we are of the opinion that the

prosecution has proved beyond reasonable doubt that the

appellants committed the murder of Anjana by strangulating

her and thereafter set her on fire in order to cause

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disappearance of evidence. Thus, we find no merit in the

appeal. The appeal is dismissed.

[ DR. SHALINI PHANSALKAR-JOSHI, J ] [ SMT. V.K. TAHILRAMANI, J. ]

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