Bombay High Court
Sonu S/O. Lula Atla (In Jail) vs State Of Maharashtra Thr. P.S.O. ... on 15 January, 2018
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.187 OF 2017
Sonu s/o. Lula Atla,
Aged about 37 years, Occ.
Agrilst., r/o. Karkazora,
Tq. and Distt. Gadchiroli. .......... APPELLANT
// VERSUS //
State of Maharashtra,
Through P.S.O., Gadchiroli,
District Gadchiroli. .......... RESPONDENT
____________________________________________________________
Mr.Mahesh Rai, Advocate for the Appellant.
Mr.A.M.Desdhpande, A.P.P. for the Respondent/State.
____________________________________________________________
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Date of reserving the Judgment : 9.1.2018.
Date of pronouncing the Judgment : 15.1.2018.
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::: Uploaded on - 15/01/2018 ::: Downloaded on - 16/01/2018 02:17:22 :::
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CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
JUDGMENT (Per M.G.Giratkar, J) :
1. Appellant has assailed the Judgment of conviction
awarded by the Sessions Judge, Gadchiroli for the offence punishable
under Section 302 of the Indian Penal Code. By the said Judgment,
the appellant was sentenced to suffer life imprisonment and to pay a
fine of Rs.5,000/-, in default to suffer rigorous imprisonment for six
months.
2. The case of prosecution against the appellant, in short, is
as under :
Deceased Shyamlata was wife of the appellant. Appellant
married with deceased 11 years before the incident. Appellant was
addicted to liquor and was not doing any work. He was residing
along with his wife at the house of his father-in-law. Appellant was
always beating deceased and quarrelling with her. Therefore, the
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father-in-law directed the appellant to reside separate with the
deceased.
3. Appellant started residing separately with his deceased
wife. On the day of incident, appellant beat deceased by fist and kick
blows and thereafter, he assaulted her by stone on her head.
Deceased was unconscious. Thereafter, appellant poured kerosene
and set her on fire. Monabai Suleram Lakda (PW-3) and Yashodabai
Namdeo Kowachi (PW-4) witnessed the incident.
4. Monabai Lakda (PW-3) went to the house of father of
deceased and informed him immediately. Madhukar Naktuji Sojirwar
(PW-1), father of deceased went to the house of appellant. He found
that the deceased was writhing in pain due to burning. Immediately
he took her to the hospital at Gadchiroli. The Medical Officer
examined and declared her brought dead.
5. Father of deceased namely Daulu Gosavi Kowachi (PW-
2) lodged report in Police Station, Gadchiroli. Crime was registered
against the appellant. PSI Nitin Ashok Kame (PW-9) investigated the
crime. He went to the spot of incident, prepared spot panchanama
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and inquest panchanama, arrested the accused, recorded statement
of witnesses and after complete investigation, filed charge sheet
before the Judicial Magistrate, First Class, Gadchiroli. Same was
committed for trial to the Sessions Court.
6. Charge was framed at Exh.4 for the offence punishable
under Section 302 of the Indian Penal Code. Appellant pleaded not
guilty and claimed to be tried. From the cross-examinations of
witnesses, it appears that the defence of appellant is of total denial.
It is the defence of the appellant that deceased was under the
influence of liquor. She fell down on a burning lamp and therefore,
she died.
7. Prosecution has examined following ten witnesses :
a. Madhukar Naktuji Sojirwar (PW-1) (Exh.8).
b. Daulu Gosavi Kowachi (PW-2) (Exh.12).
c. Monabai Suleram Lakda (PW-3) (Exh.15).
d. Yashodabai Namdeo Kowachi (PW-4) (Exh.16).
e. Anandrao Kanhuji Meshram (PW-5) (Exh.21).
f. Bhaskar Yeshwant Ramteke (PW-6) (Exh.24).
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g. Vijay Narayan Sedmake (PW-7) (Exh.27).
h. Pooja Nandkishore Wagh (PW-8) (Exh.33).
i. Nitin Ashok Kame (PW-9) (Exh.37).
j. Dr.Jitendra Newaji Gedam (PW-10) (Exh.41).
8. Statement of appellant was recorded under Section 313
of the Code of Criminal Procedure. He has denied material
incriminating evidence against him. But he did not give any
explanation as to how his wife died. After hearing prosecution and
defence, learned Sessions Judge has convicted the appellant, as
aforesaid.
9. Heard Mr.Mahesh Rai, learned Counsel for the appellant.
He has submitted that evidence of Monabai Lakda (PW-3) and
Yashodabai Kowachi (PW-4) are not reliable. They are not eye
witnesses of the incident. Prosecution has to prove the case beyond
reasonable doubt. Burden cannot be shifted on the accused to give
explanation under Section 106 of the Evidence Act. At last, submitted
that prosecution has failed to prove guilt of the appellant beyond
reasonable doubt. Therefore, he is entitled for acquittal.
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10. Heard Mr.A.M.Deshpande, learned A.P.P. for the
Respondent/State. He has pointed out evidence of Monabai Lakda
(PW-3) and Yashodabai Kowachi (PW-4). Learned A.P.P. has
submitted that the evidence of Yashodabai Kowachi (PW-4) shows
that she saw the appellant assaulting the deceased by fist and kick
blows. Appellant assaulted her by means of stone on her head. This
witness went to the house of Narayan Madavi and disclosed him
about the incident.
11. Monabai Lakda (PW-3) has stated in her evidence that
she heard screaming of deceased Shamlata. Therefore, she went to
the house of deceased. She saw deceased burning at her courtyard
and appellant was sitting there. She saw blood and one stone lying in
the courtyard of appellant. Thereafter, she went to the house of
father of deceased and disclosed the incident to him.
12. Learned A.P.P. has submitted that, as per the evidence of
Medical Officer Dr.Jitendra Newaji Gedam (PW-10), the cause of
death was head and burn injuries. Appellant failed to disclose as to
how deceased died. Presence of appellant is not denied in the cross-
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examination of any of the witnesses. At last, it is submitted that
prosecution has proved guilt of appellant beyond reasonable doubt.
Learned trial Court rightly convicted the appellant and hence, appeal
is liable to be dismissed.
13. Perused the evidence of prosecution witnesses. Daulu
Kowachi (PW-2) is the father of deceased. He has stated in his
evidence that Monabai informed him about the incident.
Immediately he went to the house of appellant. He saw his daughter
burning. He immediately took her to General Hospital, Gadchiroli.
Medical Officer examined her and declared dead. He has also stated
that blood was lying in the courtyard. One stone was also lying there.
14. Monabai Lakda (PW-3) and Yashodabai Kowachi (PW-4)
are the material witnesses. Yashodabai (PW-4) has stated in her
evidence that she was going towards the house of Narayan Madavi
for calling her son When she reached near the house of appellant,
she saw appellant assaulting deceased Shamlata by fist and kick
blows and thereafter, he assaulted her by means of stone on her
head. Immediately she went to the house of Narayan Madavi and
disclosed this fact to him.
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15. Monabai (PW-3) went to fetch water from the boring
situated near the house of appellant. She heard screaming of
deceased Shamlata. Therefore, she went to the house of appellant. At
that time, she saw that the deceased was burning. Appellant was
sitting there. She had seen blood and one stone lying in the
courtyard of appellant. Thereafter, she went to the house of
Madhukar Sojirwar (PW-1) (father of deceased) and disclosed the
incident to him.
16. From the perusal of cross-examination of Monabai (PW-
3), it is clear that it is not denied by the appellant about his presence
at the time of incident. Material evidence of Monabai (PW-3) and
Yashodabai (PW-4) not shattered in their cross-examination. There is
no reason to disbelieve the evidence of Monabai (PW-3) and
Yashodabai (PW-4). Spot panchanama was drawn by the
Investigating Officer. It is at Exh.11. As per the situation on the spot,
it is clear that burnt fire woods were lying in the courtyard. Blood
was also lying there. Stone was seized from the courtyard at the
instance of appellant.
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17. Evidence of Monabai (PW-3) and Yashodabai (PW-4) are
well corroborated by the evidence of Medical Officer Dr.Jitendra
Gedam (PW-10). He has stated in his evidence that he had
conducted post mortem on the dead body of Shamlata on 5.2.2015.
Medical Officer has stated as under :-
" Burn injury involving lower extremities front and
back.
Burn percentage calculated as 40 % of body surface
area and other injuries-fracture right mandibular ramus,
fracture right parieto occipital area of skull and left
supraorbital region and fracture right second rib. All these
injuries are ante mortem. On internal examination of
skull-subdural haematoma in left frontal area left
occipital temporal area and fracture skill right parietal
occipital and left supraorbital regions.
Death was caused due to burn injury and head
injury. Accordingly, I issued certificate of postmortem.
Now I am shown postmortem report, it bear my
signature, the contents therein are true and correct, it is
at Exh.42. "
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18. It is clear from the evidence of Monabai (PW-3) and
Yashodabai (PW-4) that the appellant beat his wife mercilessly.
When she became unconscious, he burnt her. He was sitting when
the deceased was burning. This particular evidence is stated by
Monabai (PW-3). Presence of appellant is not denied during the
course of cross-examination of any of the witnesses. Therefore, it is
clear that deceased was in the custody of appellant. Therefore, it was
for the appellant to explain as to how his wife died. But he has not
given any explanation in his statement u/s. 313 of the Code of
Criminal Procedure.
19. Learned Counsel for the appellant Mr.Mahesh Rai
pointed out decision in the case of Vishal @ Shivaji Mahadeo Kamble
.vs. The State of Maharashtra and another reported in 2017 ALL MR
(Cri) 1877. The Division Bench of this Court has observed that "the
Court cannot draw adverse inference against the accused by invoking
Section 106 of the Evidence Act unless basic burden to prove the
case is discharged by the prosecution." In the present case,
prosecution has proved by the evidence of Monabai (PW-3) and
Yashodabai (PW-4) that the appellant beat his wife by fist and kick
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blows. He beat her by stone and thereafter, he burnt her. Monabai
(PW-3) saw the appellant sitting when deceased was burning. His
presence is not denied. As per the evidence of Medical Officer
Dr.Jitendra Gedam (PW-10), death of deceased was due to head and
burn injuries. Prosecution has discharged it's burden. Prosecution has
proved that appellant beat his wife by stone and caused head injury
to her and thereafter, burnt her.
20. After discharging the burden by the prosecution, it was
for the appellant to explain as per Section 106 of Evidence Act as to
how his wife died. But he has not stated anything about the incident
or as to cause of death of deceased. Therefore, conduct of appellant
is material. Non-explanation by the appellant shows that he is the
person who caused the death of his wife.
21. The evidence on record, more particularly, the evidence
of Daulu Kowachi (PW-2) shows that the appellant was not doing
any work. He was addicted to liquor and always used to beat his
deceased wife. Evidence of Yashodabai (PW-4) shows that, at the
time of incident, she saw the appellant beating deceased by fist and
kick blows. She witnessed the incident of beating by the appellant
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by stone on her head. Monabai (PW-3) heard the screams of
deceased. Therefore, she went to the house of appellant and saw
that the deceased was burning and the appellant was sitting there.
She saw one stone lying in the courtyard. Blood was also lying
there. As per medical evidence, deceased died due to head and burn
injuries. Prosecution has proved beyond reasonable doubt that
appellant committed murder of his wife. There is no infirmity or
illegality in the impugned Judgment. Hence, we pass the following
order.
// ORDER //
The appeal is dismissed.
No order as to costs.
Record and proceedings be sent back to trial
Court.
JUDGE JUDGE
[jaiswal]
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