Bombay High Court
Suresh Shrirang Chavan vs The State Of Maharashtra on 1 March, 2017
Bench: V.K. Tahilramani
23. cri apeal 689-11 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 689 OF 2011
Suresh Shrirang Chavan
Age - 46 Years, Occ - Labourer,
R/o. Dawari Vasahat, Nandani Naka,
Jaysingpur, Tal. Shirol, Dist. Kolhapur.
[ At present lodged in Kolhapur Central
Prison, Kalamba ] .. Appellant
(Org. Accused)
Versus
The State of Maharashtra
Through Police Inspector,
Police Station Shirol, Tal. Shirol,
District Kolhapur. .. Respondent
...................
Appearances
Mrs. Nasreen S.K. Ayubi Advocate (appointed) for the Appellant
Mr. H.J. Dedia APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
REVATI MOHITE DERE, JJ.
DATE : MARCH 1, 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 31.3.2011
passed by the learned Additional Sessions Judge, Jaysingpur
in Sessions Case No. 12 of 2010. By the said judgment and
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order, the learned Session Judge convicted the appellant for
the offence punishable under Section 302 of IPC and
sentenced him to suffer life imprisonment and fine of Rs.
1000/-, in default S.I. for one month.
2. The prosecution case briefly stated, is as under:
(a) Deceased Vatsala was the daughter of PW 13
Kanthabai. Vatsala was married to the appellant
Suresh. They had four children. Initially
everything was going smoothly between Vatsala
and the appellant, however, thereafter, the
appellant started consuming liquor and beating
Vatsala. Kanthabai tried to convince the appellant
but he did not pay any attention. The appellant
started taking doubt on Vatsala i.e he had some
suspicion relating to her chastity.
(b) It is the prosecution case is that on 01.04.2010 at
about 2.00 a.m., the appellant assaulted his wife
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with a stone pestle which led to her death. The
appellant then went and informed the police. FIR
was registered. Thereafter investigation
commenced.
(c) The dead body of Vatsala was sent for
postmortem. PW 14 Dr. Patil conducted the
postmortem on the dead body of Vatsala. Dr.
Patil found four injuries on her person. They were
all on the head and face. According to Dr. Patil,
the said injuries were ante mortem injuries and
they were caused by hard and blunt object.
According to Dr. Patil, the cause of death was due
to shock duo to cranio-cerebral injury. 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 the appellant assaulted his wife Vatsala with
a stone pestle on the head and face and caused her
death.
5. There is no eye witness to the incident and the case is
based totally on the circumstantial evidence. The first
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circumstance is the conduct of the appellant. The appellant
went to the police station and stated that he has murdered
his wife by assaulting her with a stone pestle and the body
was lying in his house. No doubt, as it was a statement
made by the accused to the police, we cannot take the
contents of the FIR into consideration. However, the fact
remains that after the appellant made the statement to the
police; when the police went to the house of the appellant,
they saw the dead body of his wife lying there with injuries
on her person and the stone pestle lying nearby which was
blood stained.
6. One more circumstance against the appellant is that at
the time of arrest, the clothes on his person were found to be
stained with blood of 'B' group. The C.A. report Exh. 43/C
shows that the blood group of the appellant was 'O' group.
The C.A. report Exh. 45/C shows that the blood group of
deceased Vatsala was 'B' group and the C.A. report Exh. 44/C
shows that the clothes of the appellant at the time of arrest
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were stained with blood of 'B' group. The appellant has not
furnished any explanation for the presence of blood of 'B'
group i.e the blood group of his wife on his clothes at the
time of arrest.
7. The next circumstance against the appellant is motive.
The appellant had motive to kill his wife. This is brought out
in the evidence of PW 13 Kanthabai who is the mother of the
deceased. Kanthabai has stated that Vatsala was her
daughter. She was married to the appellant. They had four
children. Earlier everything was going on smoothly between
the appellant and Vatsala. Thereafter, the appellant started
consuming liquor and beating Vatsala. Kanthabai has
specifically stated that the appellant was having doubt
regarding chastity of Vatsala. Thus, it is seen that the
appellant had motive to murder his wife.
8. The last but the most important circumstance against
the appellant is that Vatsala had died a homicidal death
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while living in the house of the appellant along with him. In
such case, it was obligatory on the part of the appellant to
explain how the death of Vatsala occurred but the appellant
has not furnished any explanation. There is no denial of the
fact that deceased Vatsala was residing with the appellant as
his wife in a hut situated at Dawary Vasahant, Nandani Naka,
Jaysingpur. The death of Vatsala had occurred inside the
house of the appellant in the night. It is obvious that Vatsala
was in the custody of the appellant, hence, it was absolutely
incumbent on the part of the appellant to explain the death
of his wife Vatsala. It is pertinent to note that admittedly,
the appellant and deceased Vatsala were husband and wife.
They were sharing the same house and were co-habiting in
the said house as husband and wife. This fact has not been
disputed by the appellant. Vatsala was found dead in the
house with serious injuries on her person. In such case
Section 106 of the Evidence Act would come into play.
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9. 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 o 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 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
1 (2006)12 SCC 254 : AIR 2007 SC 144
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innocence, the Court can consider his failure to adduce any
explanation as an additional link which completes the chain.
10. The appellant has not brought any circumstance on
record to show that any other person had reason or motive
to commit the murder of Vatsala. It is not even the defence
of the appellant that some robbers had entered into the
house and while committing robbery, they committed the
murder of Vatsala. It is not even remotely suggested to any
of the prosecution witnesses that some other person than
the appellant had entered the house of the appellant and
had committed the murder of Vatsala. The injuries sustained
by Vatsala clearly show that it is a case of homicidal death.
The injuries and the circumstances in which the body was
found rules out the possibility of suicidal death or even
accidental death.
11. PW 14 Dr. Patil conducted the postmortem on the dead
body of Vatsala. On external examination, Dr. Patil found
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following injuries:-
i. CLW over central area of forehead at half root left, 2 x 2 cms x
bone deep, clotted blood present, palpable fracture of frontal
bone.
ii. CLW in between the eyebrows extending right side upto
middle of upper eyelid, on left side upto middle of upper eye
lid,lower extension is upto lower 1/3rd nose, irregular in shape,
6 x 5 cms x bone deep, bone pieces of fractured bone seen in
wound, brain matter has come out of wound, clotted blood
present, bleeding from nose present.
iii. CLW at left angle of mouth 3 x 2 x 2 cms. Clotted blood
present.
iv. CLW at lower lip of right angle of mouth, lower four incisor
teeth are lost, clotted blood present, palpable fracture of
mandible on right side is noticed.
Palpable fracture of mandible on right side to maxillary bone,
nasal bones, frontal bone is noticed. Hematoma with clotted
blood present in frontal area of scalp. Brain is congested and
brain matter has come out of through injuries at face and skull.
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According to Dr. Patil, age of injury Nos. 1 to 4 is within
12 hours and cause of injuries Nos. 1 to 4 is hard and blunt
object. In the opinion of Dr. Patil, nature of injuries Nos. 1, 2
and 4 are grievous and injury No. 3 is simple. Dr. Patil
further stated that all the injuries mentioned in column No.
17 are ante mortem injuries. According to Dr. Patil, the
death has occurred due to shock which must have occurred
due to a blow of something and shock due to cranio-cerebral
injury. The external injuries can be caused by hard and blunt
object and those injuries can be caused due to a blow by the
stone pestle.
12. Looking to the evidence on record, we are of the
opinion that the prosecution has proved beyond reasonable
doubt that it was the appellant who committed the murder of
his wife Vatsala and none else. In this view of the matter, we
are of the opinion that there is no merit in the appeal. The
appeal is dismissed.
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13. Fees to be paid to the appointed Advocate are
quantified at Rs. 5000/-.
[ REVATI MOHITE DERE, J. ] [ SMT. V.K. TAHILRAMANI, J. ]
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