Manohar S/O Mahadu Kate vs The State Of Maharashtra
2017 Latest Caselaw 8847 Bom

                                                  Cri. Appeal No. 404/2002
                                        1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO. 404 OF 2002

Manohar s/o. Mahadu Kate,
Age 32 years, Occu. Labourer,
R/o. Savri, Tq. Nilanga,
Dist. Latur.                                 ....Appellant.

               Versus


The State of Maharashtra                     ....Respondent.


Mr. B.S. Kudale, Advocate for appellant (appointed).
Mr. V.S. Badakh, APP for respondent/State.


                                CORAM   : T.V. NALAWADE AND
                                          ARUN M. DHAVALE, JJ.

RESERVED ON : 09/11/2017 PRONOUNCED ON : 20/11/2017

JUDGMENT : [PER T.V. NALAWADE, J.]

1) The appeal is filed against judgment and order of

Sessions Case No. 2/2001, which was pending in the Court of

learned Additional Sessions Judge, Nilanga, District Latur. The

appellant is convicted for the offence punishable under section 302

of Indian Penal Code ('IPC' for short) and he is sentenced to suffer

imprisonment for life and to pay fine of Rs.500/-. Heard learned

counsel Shri. Kudale, who is appointed counsel and the learned APP.

2) In short, the facts leading to the institution of the

Cri. Appeal No. 404/2002

present appeal can be stated as follows :-

Deceased Vijayabai (Sujata) was the wife of

appellant/accused. The appellant is resident of Savri, Tahsil Nilanga.

Kadaji is the father of deceased. He is resident of village Dapka,

Tahsil Nilanga. The deceased was given in marriage to the appellant

5-6 years prior to the date of incident and she has left behind one

daughter aged about 2-3 years.

3) After marriage, the deceased cohabited with the

appellant in village Savri. There was some dispute and after two

years of marriage, the deceased had returned to the house of her

parents. The deceased used to complain about the illtreatment which

she was receiving from the appellant and her mother. When she

returned to the parent's house, she was pregnant and she delivered

female child when she was living in the house of Kadaji. She stayed

there for about two years. After her delivery, Kadaji made attempts

to see that the deceased is sent back to the matrimonial house, but

the accused refused to accept the deceased back in the matrimonial

house. To pressurize the appellant/accused, the deceased filed

maintenance proceeding against him. After that the appellant went

to the house of Kadaji, he gave undertaking to behave well and then

Kadaji agreed to send the deceased back to the matrimonial house.

Cri. Appeal No. 404/2002

4) Few days prior to the Nagpanchami festival, the

appellant had visited the house of Kadaji and Kadaji had agreed to

send the deceased after celebrating Nagpanchami festival. The

deceased was sent to the matrimonial house and that was done

about two months prior to the date of incident.

5) Appellant was living separate from his father since 10

years. On 1.10.2000 the villagers realized that Vijayabai was dead

and her dead body was lying in the house of appellant. Gopal

Suryawanshi is the person from the community of the appellant and

after learning about the death in the morning, he went to the house

of appellant at about 6.00 p.m. He noticed that father of appellant

was sitting outside of house and he was taking care of daughter of

deceased. On inquiry, father of appellant said that he had no

knowledge about the whereabouts of appellant. Gopal entered the

room and he noticed that the dead body of the deceased was lying

there, but it was covered by using blanket. Gopal gave A.D. report to

Kasarshirsi Police Station and A.D. No. 23/2000 came to be

registered.

6) Assistant Police Inspector Shri. Gaikwad of Kasarshirsi

Police Station started making inquiry in to A.D. He prepared inquest

panchanama and he sent the dead body for post mortem ('P.M.' for

Cri. Appeal No. 404/2002

short) examination. He prepared the panchanama of the spot, of the

room of the appellant and he noticed that pieces of bangles were

lying in the room and cap having blood stains was also lying there.

One ditch having sufficient depth which was recently made was also

found there and the floor of the room appeared to be wet showing

that recently an attempt was made to clean it. In the meantime,

Kadaji, father of deceased reached Savri and after P.M. was

conducted on the dead body, he gave report against present

appellant and his mother. On the basis of this report, the crime at

C.R. No. 130/2000 came to be registered for offences punishable

under sections 498-A, 302 r/w. 34 of IPC against the appellant and

his mother. Doctor had given opinion that the death had taken place

due to strangulation.

7) During investigation of the crime, statements of various

persons including the relatives of deceased on parents side came to

be recorded. The accused was not available till 13.10.2000. After his

arrest, his clothes like shirt and trouser were taken over. One faint

blood stain was found on his shirt. During investigation, accused

gave statement under section 27 of the Evidence Act and on the

basis of the statement, one string used by the accused for

strangulation was recovered in the presence of panch witnesses and

it was seized. The articles which were taken over from the spot of

Cri. Appeal No. 404/2002

offence were sent to C.A. office along with blood sample. Human

blood was detected on the shirt of the appellant/accused and also on

the cap which was found in the room of accused. Chargesheet came

to be filed for aforesaid two offences against the appellant and his

mother.

8) When the charge was framed and plea was recorded,

present appellant pleaded not guilty. Prosecution examined eight

witnesses. The Trial Court used the power given under section 311 of

Criminal Procedure Code ('Cr.P.C.' for short) and examined five

witnesses. The Trial Court has held that Sujata (Vijayabai) was

murdered due to suspicion which accused was having about her

character. The Trial Court has further held that it is the present

appellant, who had prepared the ditch for burying the dead body for

destruction of evidence of murder. The Trial Court has held that only

the appellant had an opportunity to finish Sujata as mother of the

appellant was living separate from him. The subsequent conduct of

the appellant is also considered by the Trial Court against him.

9) The defence has not seriously disputed that Sujata died

homicidal death. For proving homicide, the prosecution has placed

reliance on the evidence of inquest panchanama and P.M. report.

Vikas Sarvade (PW 2) is examined to prove the inquest

Cri. Appeal No. 404/2002

panchanama, which is at Exh. 14. The panchanama was prepared

inside of house of appellant and the dead body was shown by Gopal,

the person who had given A.D. report. The face of the dead body

was in upward direction and the clothes were intact. Mud was found

on the head and on hair of the dead body. There were injuries

mainly on the face and the neck. The panchas described one injury

as ligature mark. The panchas noticed that on inside portion of

thighs, there were some injuries and the lady witness noticed that

there was mark of violence at the private part. The panchas gave

opinion that the death had taken place due to injuries found on the

dead body.

10) Dr. Bibhishan Jadhav (PW 5) conducted the P.M.

examination on the dead body on 2.10.2000. He noticed following

external injuries on the dead body :-

i) Abrasion on right cheek at Mandibular region.

ii) Abrasion on left mandibular region circular in nature

3 cm in diameter.

            iii)        Abrasion on neck midline 3 cm. in length.

            iv)         Multiple abrasion on neck.

            v)          Abrasion on left thigh on lateral aspect upper 1/3rd

            region.





                                                 Cri. Appeal No. 404/2002

He noticed that there was fracture of thyroid bone, trachea was

congested and lungs were also congested. On the basis of this

examination, he gave opinion that death had taken place due to

strangulation. Suggestions are given to him that it is not a case of

strangulation, but it is not the specific case of defence that it is a

case of hanging. Further, there was no such circumstance in

existence in the room for giving such suggestion. The P.M. report

prepared by Dr. Jadhav and the provisional death certificate are

proved as Exhs. 22 and 23. One mistake is admitted by the doctor

which is mentioning of 'cheek' for injury No. 3 when it ought to have

been 'neck'. He has mentioned that there were multiple abrasions

appearing on the neck, but he has not noted those in the P.M.

report.

11) It appears that the defence counsel had confronted some

portions from the book of Ezaz Ahmed's Expert Evidence 5th Edition,

1999 to Dr. Jadhav (PW 5) to suggest that there can be other cause

of death like introduction of something in uterus. This suggestion is

denied by the doctor. It can be said that the defence is admitting

that there were some marks of violence at the private part. It is also

suggested to him that in case of artificial abortion, the death can

take place due to asphyxia, saftysemia, tetaneous followed by air

embolisam. These suggestions are denied by the doctor. Suggestion

Cri. Appeal No. 404/2002

is given that rigor mortis starts appearing after 1-2 hours of the

death and it is admitted, but no suggestion is given as to when rigor

mortis disappears. Doctor has given specific evidence that the

injuries found were bleeding injuries. The viscera was preserved, but

no poison was detected in the viscera. This Court sees no reason for

not accepting the opinion given by the doctor that the cause of

death is strangulation. Thus, the prosecution has proved that the

death took place due to strangulation and it is case of homicide.

12) The Trial Court has acquitted the appellant of the offence

punishable under section 498-A of IPC and so, the evidence only on

the offence of murder needs to be considered. Gopal Suryawanshi

(PW 1), the person from the community of the appellant has given

evidence that after learning about the death of Sujata, he visited the

place of residence of appellant in the evening time. He has given

evidence that appellant was not present and father of appellant was

taking care of daughter of the appellant. In the cross examination of

this witness, it is brought on the record by the defence that in this

house only the appellant was living with the deceased and accused

No. 2, mother of the appellant was living separate from him. It is

brought on the record that house of father of appellant is situated at

the distance of 100 ft. from the house of appellant. It is also brought

on the record that the field of Datta Patil where appellant was

Cri. Appeal No. 404/2002

working is situated at the distance of 6 k.m. from the house of

appellant. A.D. report given by Gopal is proved as Exh. 12.

13) Kadaji (PW 6), father of the deceased has given evidence

on the dispute which was there between the appellant and the

deceased and on the maintenance proceeding which was filed by the

deceased against the appellant. There is no need to discuss the

evidence on illtreatment. The evidence of Kadaji shows that the

deceased had lived with accused for about two years after her

marriage and she had returned after about two years of marriage to

his house. When she had returned to him, the deceased was

pregnant of seven months and she delivered a female child in his

house. He has given evidence that 5-6 days prior to the

Nagpanchami festival, appellant and his father had come to him to

request him to send the deceased to matrimonial house. This

attempt was made by the appellant only after filing of maintenance

proceeding by the deceased against him. He has given evidence that

appellant gave undertaking not to give illtreatment to the deceased

and there was condition that the deceased was to withdraw the

proceeding filed for maintenance. Promise was given to the appellant

to withdraw the maintenance proceeding after some time. Evidence

is given by Kadaji that after celebrating Panchami festival, he sent

the deceased to the house of appellant for resuming cohabitation.

Cri. Appeal No. 404/2002

The incident in question took place after two months after returning

of the deceased to the house of the appellant. The report given by

him against the appellant is proved as Exh. 25 and it is consistent

with the aforesaid evidence of Kadaji.

14) In the cross examination of Kadaji (PW 6), it is brought

on the record that the parents of appellant were living separate from

him from about 10 years. It is brought on the record that after

Panchami festival of the year 2000 i.e. after returning of Vijayabai to

matrimonial house, appellant had meet him at Bazar and he had

informed that the deceased was admitted in hospital due to

abdominal pains. It is brought on the record that due to miscarriage

she was admitted in the hospital. Thus, the deceased had the

cohabitation of about two months after returning to matrimonial

house and the abortion had taken place and this circumstance is

brought on the record by the accused. It is also brought on the

record that when the deceased was living with Kadaji, she was doing

labour work in the field of one Akhil Patel and Akhil Patel used to

help them in all problems. It is brought on the record that Vijayabai

used to return to house from the field of Akhil Patel very late and

due to that Kadaji scolded her on 2-3 occasions. These

circumstances are used against the appellant by the Trial Court and

rightly so. It can be said that the accused had that information and

Cri. Appeal No. 404/2002

inference is possible that he had suspicion that deceased had illicit

relations with said Akhil Patel.

15) Kisan (PW 4) is a person from Dapka and in his

evidence, it is brought on the record that few days prior to the

festival of Panchami of 2000, appellant had visited the house of

Kadaji with a request to send the deceased to matrimonial house.

Other evidence given by this witness is similar to the evidence given

by Kadaji (PW 6) on the point of dispute, illtreatment given to

deceased, filing of maintenance proceeding by the deceased and

sending the deceased to matrimonial house after Panchami festival

by Kadaji. Similar evidence is given by Gautam (PW 7), who is also

from Dapka. This evidence also shows that only to avoid the liability

of making payment of maintenance amount, appellant had taken

back the deceased to the matrimonial house. Thus, if the deceased

wanted to return from matrimonial house due to any dispute, she

would have prosecuted the matter filed for maintenance and this can

be also motive for the crime.

16) Court witnesses have also given some evidence. Court

witness Madhav, father of appellant has given evidence that the

parents of the appellant were living separate from appellant and

Sujata died in the house of appellant. In his evidence, it is brought

Cri. Appeal No. 404/2002

on the record that on the night between 30.9.2000 and 1.10.2000,

he was not present even in his house and on the next day, he learnt

about the death of Vijayabai. He has deposed that he was not on

talking terms with the appellant for about 10 years. The evidence of

this witness and Gopal show that in the morning of 1.10.2000 itself

people knew that Vijayabai was dead and her dead body was lying in

the house of accused.

17) Datta Patil, another Court witness has tried to support

the accused. Accused was working with him in the field and he has

deposed that on 1.10.2000 appellant/accused was present in the

filed for work. However, his evidence is not that specific as to when

on that date the accused had come to the field for work.

18) The evidence of Dr. Bibhishan Jadhav (PW 5) and the

P.M. report prepared by him shows that rigor mortis was absent, but

uenus merbling was present. The P.M. was conducted on 2.10.2000

after 15.00 hours i.e. 3.00 p.m. Inference is easy that after rigor

mortis had completely appeared it had disappeared. The stomach

was found empty and both large intestine and small intestine were

empty. These circumstances show that either no dinner was taken

by the deceased or in early hours of the morning when the deceased

had answered nature's call, the incident in question took place. It

Cri. Appeal No. 404/2002

can be said that nobody could hear hue and cry of the deceased and

so, the murder must have been committed in early hours of

1.10.2000 or on the night between 30.9.2000 and 1.10.2000.

19) For drawing aforesaid inference, there are many other

circumstances, which can be seen in the spot panchanama, Exh. 15.

One ditch having sufficient depth was created in the room. Inquest

panchanama shows that an attempt was also made to ascertain as

to whether that ditch was sufficient for burying the dead body and

due to that there was mud on the head of dead body. There is

possibility that the accused could not bend limbs of the dead body

after taking the ditch and then he left his attempt and went out. It

does not look probable that outsider would have made an attempt to

take ditch for burying the dead body. Further there was cap having

blood stains inside of house and near the ditch. Sickle, article used

for taking ditch was found there. These circumstances are sufficient

to infer that it was the job of person living in that room, the

accused. Thus, all these circumstances point finger only to the

accused.

20) It is true that motive is relevant when the case of

prosecution rests on circumstantial evidence. However, not in each

and every case, there should be motive because many times the

Cri. Appeal No. 404/2002

motive may be only in the mind of accused and others may not be in

a position to realize what what is in the mind of accused. When

there are strong circumstances like found in the present matter, the

absence of evidence on motive cannot be a circumstance for

discarding the evidence of aforesaid nature. This Court holds that

aforesaid evidence is more than sufficient to hold the accused guilty

for the offence of murder.

21) In view of the provision of section 106 read with section

114 of Evidence Act, it was necessary for the appellant/accused to

explain aforesaid circumstances. In ordinary course, he was

supposed to remain present in his house on the night between

30.9.2000 and 1.10.2000. The Court is expected to go with the

presumption that he must not have left for work on 1.10.2000 prior

to his duty hours and there is no evidence given on his duty hours.

The death took place on the night between 30.9.2000 and 1.10.2000

or at the most, in the early hours of 1.10.2000 when the deceased

had not taken even tea. These circumstances are not explained by

the accused. Similarly, he ought to have explained as to why there

was a ditch in his house. He ought to have explained as to why he

did not inform to Police Patil or others that his wife was dead or

something had happened to her. Even when he was having kid of 2

years, he was not there in the house to take care of that kid after

Cri. Appeal No. 404/2002

the death of his wife. This circumstance also ought to have explained

by the accused. All the incriminating circumstances are proved by

the prosecution and the circumstance of absence of explanation of

husband/appellant is additional circumstance against him. In view of

these circumstances and the provisions of section 106 read with

section 114 of Evidence Act, only inference available is that it is the

accused/appellant who committed murder of his wife Vijayabai

(Sujata) and it is the accused/appellant, who had taken ditch in the

house with the intention to bury the dead body and destroy the

evidence of murder.

22) The learned APP placed reliance on the cases reported as

AIR 2002 SUPREME COURT 1961 [Mandhari Vs. State of

Chattisgarh] and 1993 CRI.L.J. 3029 [Rajammal and Ors. Vs.

State by D.S.P.CB.CID] (MADRAS HIGH COURT). In the first

case, when there were similar circumstances, the Apex Court held

that inference was easy that it is the accused, who had committed

murder and who had created a show of suicide by his wife.

Subsequent conduct which was unnatural of the accused was also

considered against him. Madras High Court also considered

subsequent conduct which was consistent with the guilt of the

accused. The relevant facts of the present matter are quoted by this

Court.

Cri. Appeal No. 404/2002

23) For the appellant/accused reliance was placed on the

case reported as 2015 ALL MR (Cri) 1287 (BOMBAY) [Suresh

Vithal Parkar Vs. The State of Maharashtra]. In that case, this

Court held that when exact time of death was not known, presence

of accused was not established, it was not necessary for the accused

to explain the circumstances by using section 106 of Evidence Act.

In the case, reported as AIR 2015 SC (Supp) 412 [Tomaso

Bruno and Anr. Vs. State of Uttar Pradesh] cited by the learned

counsel for appellant, the Apex Court while considering

circumstantial evidence reiterated that when the case rests on

circumstantial evidence, the chain of circumstances needs to be

completed. The Apex Court has further reiterated that in such cases,

motive is relevant. The facts of that case were different. In the

present case, husband is involved as the accused and the murder

took place in his house where the deceased was cohabiting with him.

The things which ordinarily happen in routine course need to be

considered by the Court and inference needs to be drawn by the

Court on the basis of evidence given in that case. There is no dispute

over the propositions made in the cases by this Court and Supreme

Court cited supra. These propositions cannot help the accused in the

present matter in view of the facts of the present matter. This Court

holds that it is not possible to interfere in the decision given by the

Cri. Appeal No. 404/2002

Trial Court by which appellant is held guilty for the offence of

murder. In the result, the appeal stands dismissed. Fees of the

learned counsel appointed for the appellant is quantified as

Rs.5000/- (Rupees five thousand).

       [ARUN M. DHAVALE, J.]         [T.V. NALAWADE, J.]




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