Siddappa Vishwanath Aawale vs The State Of Maharashtra
2017 Latest Caselaw 8242 Bom

                                                                          903. apeal 363.14.doc

Urmila Ingale

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION
                                    CRIMINAL APPEAL NO. 363 OF 2014

                 Siddappa Vishwanath Aawle
                 Age 31 years, Occ. Nil, R/at C/o Bhagwan
                 Sarode, Suyog Colony, Rahtni, Pune
                 at present Yerwada Central Prison, Pune                 .. Appellant
                       Vs.
                 State of Maharashtra
                 through the Govt. Pleader, 
                 having his office at PWD Building
                 High Court, Bombay 400 032
                 (Sanghvi Police Station, Pune)                        .. Respondent

                 Ms.Rohini M. Dandekar, for the Appellant.
                 Mrs.G.P. Mulekar, APP  for State.

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

30th OCTOBER, 2017

ORAL JUDGMENT (PER SMT.

V .K.TAHILRAMANI) :

1. The appellant - original accused has preferred this

Appeal against the judgment and order dated 19/12/2012

passed by the learned Additional Sessions Judge, Pune in

Session Case No. 628 of 2010. By the said judgment and order,

the learned Session Judge convicted the appellant under section

302 of IPC and sentenced him to suffer rigorous imprisonment

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for life and fine of Rs.50,000/- , in default of payment of fine,

further simple imprisonment for 6 months.

The prosecution's case briefly stated is as under :

2. The appellant was married to Archana about 6 years prior

to the incident. The appellant and Archana had one son and

one daughter. The name of the daughter was Siddhi and she

was 2 years old at the time of incident. Archana informed her

father i.e. P.W.2 - Ashok Trimbak Zurale that her husband was

beating her and was also demanding money from her. Ashok

gave Rs.10,000/- to Archana. Thereafter the appellant went to

jail. In order to engage an Advocate, Ashok gave Rs.50,000/- to

Archana. Thereafter the appellant was released from jail one or

two months prior to the incident. After the appellant was

released from jail, Archana informed her father Ashok on

telephone that the appellant was harassing her. It is the

prosecution case that on 18/05/2010, the appellant committed

murder of his wife Archana as well as his daughter Siddhi by

throttling them. The brother of the appellant informed the

police about the incident and based on his statement, FIR came

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to be lodged. Thereafter investigation commenced. The dead

bodies of Archana and Siddhi were sent for postmortem. P.W. 4 -

Dr.Milind Madhukar Kulkarni conducted the postmortem on

dead bodies of Archana and Siddhi. According to him, cause of

death in both the cases was asphyxia and both persons died due

to throttling. After completion of investigation, charge-sheet

came to be filed.

3. The charge came to be framed against the appellant

under section 302 of IPC for causing death of his wife Archana

and minor daughter Siddhi. The appellant pleaded not guilty to

said charge came to be tried. His defence is total denial and

false implication.

4. 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.

5. We have heard learned Counsel for the appellant as

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well as learned APP for the State. We have carefully considered

their submissions, the judgment and order passed by learned

Sessions Judge and the evidence in this case. After carefully

considering the same, for the below mentioned reasons, we are

of the opinion that the appellant caused death of his wife and

daughter by throttling them.

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

case is totally based on circumstantial evidence. The first

circumstance is that only the appellant, his wife - Archana and

their two minor children were residing in the house at Rahatni,

Pune. Archana and Siddhi were found dead in house. The

evidence of P.W.5 - Rukumini Bhagwan Sarode shows that the

appellant, his wife and their two minor children were residing in

the premises taken on rent by the appellant from P.W.5 -

Rukumini.

7. The evidence on record shows that the appellant and

the deceased were in the house at the time of the incident. In

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such case, the accused has 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 Ram, (2006) 12 SCC 254 : AIR

2007 SC 144, 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

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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.

8. It is not the case of the appellant that some robbers

had entered into the house of the appellant and while

committing robbery, they committed murder of his wife and

child. It has also not come on record that any other person had

motive to kill the wife of the appellant and child of the

appellant. As stated earlier, the appellant, his wife and 2 minor

children were the only persons residing in the house. His wife

and minor daughter were found throttled to death and the

appellant has not furnished any explanation as to how his wife

and daughter died. Thus, under Section 106, the burden lies on

the appellant to prove his innocence but he has not been able to

discharge this burden.

9. The second circumstance against the appellant is

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that he had left a chit in his house in which he has confessed

that he committed murder of his wife and daughter on account

of financial problems. P.W. 13 - Shri Shantaram Tukaram

Tayade has deposed about the fact that one chit was found in

the house of the appellant. The said chit (Exhibit 28) was seized

in the presence of panchas and panchanama (Exhibit 25) was

drawn. In this chit which is signed by the appellant, it is stated

that he had committed the murder of his wife and daughter. He

had given details in the chit about who owed him money and

how much and to whom he owed money and how much.

10. The panch to the seizure of this chit Shri Balaji

Shankare has turned hostile, hence, the prosecution has placed

reliance on the deposition of P.W.13 - Shri Tayade who deposed

about the seizer of this chit - Exhibit 28. The Supreme Court in

various decisions has held that presumption that a person acts

honestly applies as much in favour of a police officer as of other

persons and it is not a proper judicial approach to distrust or

suspect him without good grounds therefor. Such an attitude

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could do neither credit to the Magistracy nor good to the public.

It can only run down the prestige of the police administration.

These observations were made by the Supreme Court in the case

of Aher Raja Khima Vs. State of Saurashtra reported in AIR

1956 SC 217. In a latter decision reported in AIR 1978

Supreme Court 1571 in case of State of Kerala Vs. M.M.

Mathew and anr., the Supreme Court observed that there is no

force in the contention of learned Counsel for the accused that

the evidence of the police officer cannot be relied upon. It was

further observed that it is by now well settled that public

servants must be presumed to act honestly and conscientiously

and their evidence has to be assessed on its intrinsic worth and

cannot be discarded merely because they being public servants

are interested in the success of their case. So also in the case of

Rameshbhai Mohanbhai Koli and others Vs. State of Gujarat

reported in 2011 AIR SCW 378, the Supreme Court observed

that even if the panch-witnesses have turned hostile,

seizure/recovery/discovery can be proved through the

investigating officer. Nothing has been elicited in the cross

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examination of P.W.13 - Senior Police Inspector Shri Tayade to

cause us to discard or disbelieve his evidence.

11. The evidence of P.W.3 - Shri Rajesh Shinde shows

that the appellant produced chit from his house which was in his

natural handwriting. This chit was seized vide panchanama

(Exhibit 16) in the presence of panch-witness shri Rajesh

Shinde. This chit was admittedly in the natural handwriting of

the appellant. This chit and the chit in which he had confessed

that he has murdered his wife and daughter and specimen

handwriting of the appellant was sent to the handwriting expert

for analysis. P.W.10 panch-witness Shri Ravindra Kashinath

Yadav has stated that the appellant has written 21 chits in his

presence at the police station. These 21 chits are at Exhibits

38/1 to 38/21. As stated earlier, the chit in natural handwriting,

the chit containing confession that he has murdered his wife and

daughter and specimen handwriting was sent to handwriting

expert. P.W.9 - Shri Jaysingrao Landge who was Additional

Chief State Examiner of Document at Mumbai examined

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disputed handwriting i.e. chit in which confession was made by

the appellant, the specimen handwriting and natural

handwriting and he gave his opinion that it was all written by

one and the same person. This chit Exhibit 28 which is in the

handwriting of appellant clearly shows that he has murdered his

wife and minor daughter.

12. The evidence of P.W.4 - Dr. Kulkarni shows that

Archana as well as Siddhi were murdered by throttling them.

Dr.Kulkarni has stated that cause of death was due to asphyxia.

As far as Archana is concerned, Dr.Kulkarni noticed bruise over

thyroid cartilage and subcutaneous tissue haemorrhage. As far

as Siddhi is concerned, Dr.Kulkarni noticed horizontal ligature

marks on the neck just above thyroid cartilage.

13. The chit Exhibit 28 in which the appellant has

confessed that he committed murder of his wife and minor

daughter and the other facts and circumstances of this case

clearly rule out possibility of any other person committing

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murder of Archana and Siddhi. The circumstances on record

point out to only one conclusion that is the appellant is the

person who committed the murder of Archana and Siddhi. In

this view of the matter, we find no merit in the Appeal. Appeal

is dismissed.

(M.S.KARNIK, J.) (SMT. V.K.TAHILRAMANI, J.)