Sudhakar S/O. Vithoba Misalwar vs The State Of Maharashtra Thr. The ...
2017 Latest Caselaw 7464 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



                         CRIMINAL APPEAL NO.39 OF 2017



  Sudhakar s/o. Vithoba Misalwar,
  Aged about 70 years, Occ. Labour,
  r/o. Tohgaon, Tq. Gondpipri,
  Distt. Chandrapur.                      ..........      APPELLANT



          // VERSUS //



  The State of Maharashtra,
  Through the P.S.O., Kothari,
  Tq. Gondpipri, Distt. Chandrapur.     ..........       RESPONDENT


  ____________________________________________________________  
               Mrs.S.P.Kulkarni, Advocate (appointed) for the Appellant.
                 Mr.A.M.Joshi, A.P.P. for the Respondent/State.
   ____________________________________________________________




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                                    CORAM     :  SMT. VASANTI  A  NAIK
                                                       AND
                                                       M.G.GIRATKAR, JJ.

DATED : 22nd September, 2017.

ORAL JUDGMENT (Per M.G.Giratkar, J) :

1. Appellant has challenged Judgment of conviction dated

7th January, 2016 of Additional Sessions Judge, Chandrapur in

Sessions Trial No.98 of 2012, by which appellant is convicted for the

offence punishable under Section 302 of the Indian Penal Code and

sentenced to suffer imprisonment for life and to pay a fine of

Rs.2,000/-, in default to suffer rigorous imprisonment for two

months.

2. The case of prosecution against appellant, in short, is as

under :

Appellant and his wife deceased Mayabai were residing

together in the house at Tohgaon. Their son namely Ravindra was

residing at Bhadravati and daughter Pinki was married and residing

3 apeal39.17.odt

with her husband at village Amboli, Tq.Chamorshi, District

Gadchiroli

3. As per the case of prosecution, appellant/accused was

addicted to liquor. He used to snatch money from his wife and

consume liquor. He always used to beat his deceased wife under the

influence of liquor. Due to behaviour of appellant, his son Ravindra

was residing separately at Bhadravati.

4. In the night of incident, appellant and his wife only were

in their house. In the evening, deceased Mayabai had been to the

house of Anita Misalwar (PW-2) and she talked with her. Deceased

told her that accused always used to beat her and she was under fear

of death at the hands of appellant. She returned to the house.

5. Early in the morning, on 26.6.2012, Anita (PW-2) was

informed by Anjanabai that accused came to her and disclosed her

that deceased was lying in the house. Therefore, Anita, Anjanabai

along with Gulab Itankar went to the house of appellant/accused.

They found deceased lying on the cot. Her blouse was removed and

tied to leg. There were injuries on her neck and chest. Blood was

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oozing from her nose. Anita (PW-2) was sure that the appellant has

committed murder of his wife. Therefore, she immediately informed

to Police Patil and went to Police Station and lodged report vide

Exh.13. Crime was registered vide Printed F.I.R. (Exh.14). Anita also

informed about the incident to the son and daughter of the appellant

on telephone.

6. A.P.I. Hemant Chandekar (PW-6) reached to the spot of

incident and prepared spot panchanama. He seized pillow cover and

pieces of bangles. Pillow cover was stained with blood. He took

photographs of dead body (Exh.23). He prepared inquest

panchanama vide (Exh.25). Thereafter, he sent the dead body for

post-mortem examination. The Investigating Officer arrested the

accused and seized his clothes. His dhoti and baniyan were stained

with blood. I.O. also seized blood samples of deceased and clothes as

per seizure panchanama (Exh.28). I.O. obtained the documents of

ownership from the Gram Panchayat and recorded statements of

witnesses. After complete investigation, charge sheet was filed before

the Court.

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7. Charge was framed at Exh.4 for the offence punishable

under Section 302 of the Indian Penal Code. Same was read over and

explained to the appellant in vernacular. He pleaded not guilty and

claimed to be tried. Defence of the appellant appears to be of total

denial, accidental death and plea of alibi. The appellant has taken

alternate defence.

8. Mrs.S.P.Kulkarni, learned Counsel for the appellant has

vehemently argued that evidence of Anita (PW-2) is not reliable

because there was no good relations between the appellant and this

witness. Learned Counsel submitted that there are material omission

in her evidence. She has further submitted that evidence of Ravindra

Misalwar (PW-3) and Pinki Sandukwar (PW-5) is also not reliable

because they had also not good relations with the appellant. Learned

Counsel has submitted that the trial Court has wrongly convicted the

appellant. Therefore, it is prayed to allow the appeal and acquit the

appellant.

9. Heard Mr.Ambarish Joshi, learned Additional Public

Prosecutor for the Respondent/State. He has strongly supported the

impugned Judgment. He has submitted that circumstantial evidence

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are proved by prosecution. Presence of appellant is not denied.

Deceased was in the company of appellant at the time of incident. No

plausible explanation was given by him as to how his wife met

homicidal death. He has taken a false plea of alibi. At last, it is

submitted that the impugned Judgment is perfectly legal and correct

and therefore, the appeal is liable to be dismissed.

10. In order to prove the guilt of the appellant, prosecution

has examined in all total six witnesses. Dr. Madhavi Ramteke (PW-

1), Medical Officer has stated in her evidence that on 26th June,

2012 she had conducted post mortem on the dead body of Mayabai.

She found injuries to the neck, chest and right upper limb of

deceased. Accordingly, she prepared post mortem report (Exh.9). As

per her opinion, cause of death of the deceased was asphyxia due to

throttling. As per her evidence, death of deceased might be due to

pressing of thumb and fingers to neck of deceased. Accordingly, she

replied the queries of I.O.

11. Anita (PW-2) (Exh.12) has stated in her evidence that

there was quarrel between appellant and his wife. Before the night of

incident, in the evening, deceased had been to her house and stated

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that accused may kill her on any day. In the next day morning,

Anjanabai came to her and told that accused had been to her house

and told that deceased was lying on the ground. Therefore, she along

with Anjanabai and Gulab went to the house of appellant/accused

and found that deceased was lying dead. She had sustained injuries

on chest, neck, eye etc. There was no blouse on her body. Blouse

was tied to her right leg. Her leg was put in sewing machine. She

was sure that appellant had killed his wife Maya. Therefore, she

immediately went to Police Station and lodged report (Exh.13). ASI

Tejram Thakare (PW-4) (Exh.17) recorded her report and registered

the crime vide F.I.R. (Exh.14).

12. Ravindra (PW-3) (Exh.15) has stated in his evidence that

he was residing at Bhadravati at the time of incident. His

father/appellant along with his mother were only residing at

Tohgaon. Appellant used to quarrel and beat his mother by

consuming liquor. Appellant used to demand money to his mother

for consuming liquor. He used to beat her on refusal to pay him

money. On receipt of information about the incident, he

immediately came to village Tohgaon from Bhadravati. He saw dead

body of his mother. She had sustained injuries on her chest, eye and

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head. Blood was oozing from her neck. Pillow cover was stained

with blood. There were injuries on her neck. Her right leg was tied

by blouse. In the cross-examination, he has stated that, in the night

prior to the date of incident, his mother had talked with him on

telephone and had told him that his father/appellant abused her

after drinking liquor.

13. ASI Thakare (PW-4) has stated that on 26.6.2012 at

about 6.30 a.m. Anita (PW-2) came to Police Station and lodged

report. He scribed the report as per her say vide Exh.13. Thereafter,

he registered crime no.14 of 2012 for the offence punishable under

Section 302 of the Indian Penal Code vide printed F.I.R. (Exh.14).

PSI Chandewar investigated the crime.

14. Pinki (PW-5), who is daughter of Appellant and deceased

has stated in her evidence that she is residing at Amboli with her

husband. Just before eight days of the date of incident, deceased had

been to her. Deceased told her that appellant used to ill-treat her

saying that she should not live in his house and if she fails, he would

kill her. Then deceased returned back to the house of appellant. After

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receipt of information, she immediately came to the spot of incident.

Her mother was found dead. She found injuries on her dead body.

15. API Hemant Chandewar (PW-6) has stated about the

investigation. He has proved material documents i.e. spot

panchanama (Exh.21), seizure panchanama of pillow cover and

pieces of bangles (Exh.22), photos of dead body (Exh.23), inquest

panchanama (Exh.25), seizure panchanama of blood samples of

appellant (Exh.32), seizure of blood samples of deceased at Exh.28,

seizure panchanama of dhoti and baniyan of appellant at Exh. Nos.

29 and 30, sketch map of spot (Exh.35), owernship/Gaon Namuna

No.8 issued by the Gram Panchayat (Exh.37) and Chemical

Analyser's reports (Exh. Nos. 52 and 53).

16. API Chandewar (PW-6) has stated in his evidence that,

as per the investigation, appellant and deceased were only residing

in the house/spot of incident. Appellant was arrested. His clothes

were stained with blood. He has recorded statements of witnesses.

After complete investigation, he filed charge sheet before the Court.

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17. There is no eye witness to the incident. The case of

prosecution is based on circumstantial evidence. It is well settled law

that circumstantial evidence should be of such a nature which only

points out guilt towards the accused and none else. Following five

material principles/panchasheel are laid down by Hon'ble Supreme

Court in the case of Sharad Birdhichand Sarda vs. State of

Maharashtra, (1984) 4 SCC 116.

(a) The circumstances from which the conclusion of guilt is

to be drawn should be fully established. The circumstances

concerned "must" or "should and not "may be" established;

(b) The facts so established should be consistent only with

the hypothesis of the guilt of the accused, that is to say, they should

not be explainable on any other hypothesis except that the accused is

guilty;

(c) The circumstances should be of a conclusive nature and

tendency;

(d) They should exclude every possible hypothesis except the

one to be proved, and

(e) There must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent with the

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innocence of the accused and must show that in all human

probability the act must have been done by the accused.

18. Keeping in mind the above five principles stated by

Hon'ble Supreme Court, we have to scrutinize the evidence of

prosecution as to whether those circumstances are sufficient to hold

the appellant guilty.

19. As per the evidence of Anita (PW-2) and her report

(Exh.30), it is clear that accused was addicted to liquor. He was

always quarrelling with deceased. On 25.6.2012 Mayabai had been

to her house and returned at about 9.00 p.m. In her evidence, Anita

(PW-2) has stated that deceased Maya told her that appellant used to

beat her if she fails to give money for consuming liquor. She was

under the fear of appellant and expressed her fear saying that he

would kill her any day. Though this omission is brought on record in

her cross-examination, but it is not material in view of the evidence

of son and daughter of appellant. Moreover, witnesses from rural

area cannot state each and every fact to the police. Therefore, this is

not material discrepancy to disbelieve her evidence.

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  20.              As   per     evidence   of   Anita   (PW-2),   in   the   morning   on 

26.6.2012 Anjanabi came to her house and told that appellant had

been to her and told that deceased was lying in the house. Therefore,

she along with Anjanabai went to the house of Mayabai/deceased

and found that deceased Mayabai was lying in a pool of blood. Her

blouse was removed and tied to her leg. As per her evidence (in the

cross-examination) accused disclosed in presence of Anita (PW-2)

and Anjanabai that deceased had fallen down and sustained injury.

She has specifically stated that accused was present in the house

when she along with Anjanabai and Gulab went to the house of

accused. This particular portion is not denied by the appellant during

her cross-examination.

21. The evidence of Ravindra (PW-3) shows that in the night

of incident his mother talked with him on phone and told him that

his father/appellant was abusing her after drinking liquor. His

evidence shows that he started residing at Bhadravati because of

behaviour of the accused. Due to drinking habit of appellant, he was

not meeting with him. His evidence shows that appellant and his

mother only were residing in the house at Tohgaon. Appellant used

to quarrel and beat his mother by consuming liquor. Appellant used

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to demand money from his mother for consuming liquor and he used

to beat her on refusal to pay him money.

22. The evidence of Anita (PW-2) and Ravindra (PW-3) is

also corroborated by the evidence of daughter of the appellant

namely Pinki (PW-5). She has stated in her evidence that her father

and mother were jointly residing. The appellant was consuming

liquor and was not doing any work. Her mother was earning.

Appellant used to snatch money from her mother to consume liquor

and he used to beat her. She has further stated that just before eight

days of incident her mother had been to her. She told her that

appellant was ill-treating her saying that she should not live in his

house and if she fails to do so, he would kill her. Her mother

returned back to the house.

23. The evidence of Anita (PW-2), Ravindra (PW-3) and

Pinki (PW-4) clearly show that appellant was not doing any work

and he was addicted to liquor. Deceased was doing labour work and

earning money. Appellant used to snatch money from her. Whenever

deceased refused to give money, appellant used to beat her. The

evidence of Anita (PW-2), Ravindra (PW-3) and Pinki (PW-5) show

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that deceased was under the fear of appellant. Therefore, motive on

the part of the appellant to kill the deceased is proved by the

prosecution.

24. In respect of death of deceased, evidence of Dr. Madhavi

(PW-1), Medical Officer shows that on 26.6.2012 she has conducted

post mortem on the dead body of the deceased and found the

following injuries :

I) In neck :-

(a) Multiple abrasions on front side of neck extending from right lateral to left lateral ranging from 1 cm. X 0.1 cm. to 1.5 x 0.1 cm. in sickle and liner shape horizontally.

(b) Hemorrhagic spots anteriorly.

II) Chest region :-

(a) Contusion on right breast extending from upper to lower quadrant medially;

(b) Abrasion over sternum in middle region of size 4 x 2 cm. which is liner in shape vertically.

(c) Contusion on left breast upper and lower quadrant medially.

(d) Liner abrasion below right breast of size about 3 x 1 cm. horizontally.

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          iii) Right upper limb  :-
          (a)      Right arm :- liner abrasion in middle region of size  
          about 2 x 0.1 cm. vertically.
          (b)      Right   lower   limb   :-   Abrasion   over   right   thigh   in  
          middle of size about 3 x 1 cm.
          (c)      Left lower limb :- Abrasion on medial side of left thigh  

of size of about 1 cm. X 0.1 cm. varying number 5 to 7.

25. As per her opinion, cause of death of deceased was

asphyxia due to throttling. Accordingly, she issued Post Mortem

Report (Exh.9). Some questions were asked to her by Police and she

replied to the queries vide Exh. Nos. 10 and 11. She has stated in

the reply to the queries that the injuries on the dead body were

sufficient to cause death in the ordinary course of nature. She has

stated that the injuries on the dead body of deceased on her chest

and throat are possible by fingers and thumb.

26. As per the evidence of Medical Officer Dr.Madhavi (PW-

1), death of deceased was homicidal and not accidental. Appellant

has taken false plea that deceased fell down from a cot and sustained

injuries. Some suggestions were given to show that appellant was not

present in the house. It is pertinent to note that appellant has taken

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an alternate defence. There is no dispute that the house in which the

incident took place belongs to the appellant. The copy of ownership

document is at Exh.37. As per the evidence of Anita (PW-2),

Ravindra (PW-3) and Pinki (PW-5), appellant and deceased were

only two persons residing in the house. In the night of incident, the

appellant was in the house.

27. It is clear from the evidence of Ravindra (PW-2) that, in

the night prior to the date of incident, his mother talked with him on

telephone and told him that appellant abused her under the

influence of liquor. This itself shows that the appellant was in the

house in the night of incident. Moreover, the evidence of Anita (PW-

2) shows that early in the morning when she went to the house of

accused, accused was present there. This particular evidence is not

denied in the cross-examination. The evidence of Pinki (PW-5) shows

that after receipt of information she came to village Tohgaon and

found dead body of her mother. There were nail marks on her neck

and chest. Blood was oozing from her mouth. In the cross-

examination, she has stated that cot of accused was lying near the

door in front room; whereas bed of her mother was in the said room.

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This itself shows that appellant was in the house in the night at the

time of incident.

28. Appellant has taken a false plea of alibi. He has not

adduced any evidence to prove the same. Plea of alibi is to be proved

by the accused. But he did not adduce any evidence in that respect.

29. It is brought on record in the evidence of witnesses that

appellant and deceased were only two persons residing in the house.

Deceased was in the company of appellant. Therefore, it was for the

appellant to show as to how his wife died. As per his defence,

deceased fell down and sustained injuries. If it was so, his natural

conduct would have been to call the neighbours. He would have

taken his wife to the nearest doctor to provide medical aid, but

nothing was done by the appellant. He has taken a false plea that she

fell down and died. As per the evidence of Dr. Madavi (PW-1), such

type of injuries cannot be caused by falling from bed and therefore,

the defence raised by the appellant is nothing but false.

30. Death of deceased was within the special knowledge of

appellant. As per Section 106 of the Evidence Act, it was for the

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appellant to show/explain as to how the injuries were caused to his

wife. Hon'ble Supreme Court in the case of Trimukh vs. State,

(2006) 10 SCC 681 has held as under :

" if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads :

19 apeal39.17.odt

" (b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. "

31. The facts in the above cited decision in the case of

Trimukh are perfectly applicable to the case in hand. It was in the

special knowledge of the appellant himself as to how his wife

sustained injuries, but he did not give any explanation. It suggests that

the appellant has committed murder of his wife.

20 apeal39.17.odt

32. As per the evidence of Anita (PW-2), appellant was

present at his house. As per the evidence of Ravindra (PW-3), his

mother talked with him in the night and informed him that appellant

abused her under the influence of liquor. Therefore, presence of the

appellant is proved. It is held by Hon'ble Supreme Court in the case of

Trimukh (supra) that " where an accused is alleged to have committed

the murder of his wife and the prosecution succeeds in leading evidence

to show that shortly before the commission of crime they were seen

together or the offence takes place in the dwelling home where the

husband also normally resided, it has been consistently held that if the

accused does not offer any explanation how the wife received injuries or

offers an explanation which is found to be false, it is a strong

circumstance which indicates that he is responsible for the commission of

the crime."

33. The above observations of Hon'ble Supreme Court are

perfectly applicable to the case in hand. Appellant was in the house

with his wife in the night of incident. He had not given any

explanation as to how his wife received injuries. Whatever

explanation is given by him stating that his wife fell down and

sustained injuries is nothing but false. As per the evidence of Medical

21 apeal39.17.odt

Officer Dr.Madhavi (PW-1), the injuries found on the dead body of

Mayabai cannot be caused by falling on ground. Appellant has taken a

false plea of alibi. Hence, the circumstances clearly show that it is the

appellant who had committed the crime.

34. The evidence in respect of spot panchanama and seizure

panchanama of pillow cover from the bed clearly shows that the

pillow was stained with blood. Clothes of deceased and appellant

were stained sent to the Chemical Analyser. The C.A. Reports are at

Exh. Nos. 51 to 53. The C.A. Reports clearly shows that blood stains

were found on the pillow cover, clothes of deceased and appellant.

Dhoti and baniyan of appellant were stained with blood. Blood group

was not detected, but as per the C.A. Report, human blood was found

on the clothes of deceased, pillow cover and dhoti and baniyan of

appellant. C.A. Reports corroborate the evidence of prosecution.

Moreover, the appellant has not given any explanation as to show his

dhoti and baniyan were stained with blood. Appellant was examined

by the Medical Officer after his arrest. No injury was found on the

person of appellant. Therefore, it is clear that it was the blood of

deceased which was found on the clothes of appellant. Appellant had

22 apeal39.17.odt

not sustained any injury. Therefore, he could not give any

explanation about the blood found on his clothes.

35. As per the principles laid down by the Hon'ble Supreme

Court in the case of Sharad Birdhichand Sarda (supra), the following

are the material circumstances proved by the prosecution, which only

points towards the guilt of the accused and none else.

 (1)      Death of deceased was homicidal.

 (2)      As per evidence of Dr.Madhavi, Medical Officer (PW-1), death 

of deceased was due to throttling. Finger marks and thumb impression

were found on the neck.

(3) The appellant and his wife were only two persons residing in

the house.

(4) The appellant was owner of the house as per Exh.37.

(5) Appellant was present in the house as per evidence of Anita

(PW-2).

(6) Presence of appellant is also proved because his son Ravindra

(PW-3) has stated in his cross-examination that, in the night of

incident, deceased talked with him and told that appellant had abused

her.

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 (7)      Motive  to kill the  deceased is proved by prosecution  because 

appellant was not doing any work. Deceased was doing labour work

and was earning. Appellant used to demand money. Whenever

deceased refused, he used to beat her.

(8) Evidence of Anita (PW-2) before Court and her report (Exh.13)

show that accused was always ill-treating deceased under the

influence of liquor.

(9) Daughter Pinki (PW-5) of appellant has stated in her evidence

that eight days before the incident, deceased had been to her house

and told that accused was ill-treating her saying that she/deceased

should not live in the house of appellant and if she fails to do so,

appellant would kill her.

(10) Appellant has not explained as to how his wife sustained

injuries. This fact was within the knowledge of appellant himself.

(11) Appellant has taken false plea that deceased fell down and

sustained injuries. It is falsified by the evidence of Medical Officer.

She has specifically stated that injuries found on the dead body cannot

be caused by falling from the bed.

(12) Early in the morning appellant went to the house of Anjanabai

and told that deceased was lying on the ground. Thereafter, Anita

(PW-2) and Anjanabai went to the house of appellant and found

24 apeal39.17.odt

deceased lying dead on the cot. C.A. Reports show that dhoti and

baniyan of appellant were stained with human blood. This itself show

presence of appellant on the spot.

(13) Appellant has not explained as to how his clothes were stained

with blood. MLC (Exh.31) of appellant show that he had not

sustained any injury.

(14) Appellant has taken a false plea of alibi. Plea of alibi is to be

proved by the appellant/accused. He has not given any evidence to

show that he was not at the place of incident, but he was elsewhere.

(15) Nothing is brought on record in the cross-examination of Anita

(PW-2), Ravindra (PW-3), Pinki (PW-5) to disbelieve their evidence.

(16) Nothing is on record as to why son and daughter of appellant

are deposing against him. Son Ravindra (PW-3) and daughter Pinki

(PW-5) of appellant have stated about ill-treatment and beating by the

appellant to their mother.

36. All the above circumstances clearly show that it was the

appellant who committed the murder of his wife and none else.

Prosecution has proved the material circumstances/evidence beyond

reasonable doubt to prove the guilt of the accused. Learned trial Court

has rightly convicted the appellant for the offence punishable under

25 apeal39.17.odt

Section 302 of the Indian Penal Code. Hence, we do not find any

merit in the appeal. Resultantly, the appeal is dismissed.

The record and proceedings be sent back to the trial

Court.

Fees of Mrs.S.P.Kulkarni, learned Counsel (appointed)

appearing for the appellant are quantified at Rs.5,000/-.

                                    JUDGE                                JUDGE
       



      [jaiswal]





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