Bombay High Court
Raju Pandurang Pawar vs State Of Maharashtra on 4 January, 2018
8. cri apeal 650-14 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 650 OF 2014
Raju Pandurang Pawar ]
Occ. : Labour, Age - 25 Years, ]
R/o. Post Rajeaon, Taluka & District ]
Nanded. ]
At present Vajreshvari Zopadpatti, ]
Panchvati Nashik. ]
(At present lodged in Nashik Road Central ]
Prison, Nashik). ] Appellant
(Org. Accused)
Versus
State of Maharashtra ]
Through Police Station, District Nashik ]
C.R. No. 50/2010 ] Respondent
...................
Appearances
Ms. Rohini M. Dandekar Advocate (appointed) for the Appellant
Ms. M.H. Mhatre APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI, Acting C.J. &
M.S. KARNIK, J.
DATE : JANUARY 4, 2018.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original
accused against the judgment and order dated 28.11.2008
passed by the learned Ad-hoc Additional Sessions Judge-1,
Nashik in Sessions Case No. 102 of 2006. By the said
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judgment and order, the learned Session Judge convicted the
appellant for the offence punishable under Section 302 of IPC
and sentenced him to suffer imprisonment for life.
2. The prosecution case briefly stated, is as under:
(a) Deceased Manjula was the daughter of PW 1
Janabai and PW 3 Gopinath. Manjula was married
to the appellant about four years prior to the
incident. After the marriage, Manjula went to
reside with the appellant in her matrimonial home.
The appellant used to ill-treat Manjula. The
appellant had suspicion that Manjula had
practiced black magic on him, hence, on 8.1.2006,
the appellant committed the murder of his wife
Manjula by strangulating her with an iron chain.
Thereafter, the appellant went to Panchvati Police
Station which was situated nearby and informed
the officer on duty i.e PW 6 PSI Deshmukh that he
had committed the murder of his wife by
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strangulating her with an iron chain. This
statement was made in presence of PW 4 Police
Naik Kazi. PW 6 PSI Deshmukh lodged the FIR.
Thereafter, investigation commenced. 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
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 for the State. 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
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the evidence on record, for the reasons stated below, we are
of the opinion that the appellant strangulated his wife with
an iron chain and caused her death.
5. There is no eye witness in the present case and the
case is totally dependent on circumstantial evidence. The
prosecution has heavily relied on the evidence of PW 4 Police
Naik Kazi and PW 6 PSI Deshmukh. In order to prove motive,
the prosecution has relied on the evidence of PW 1 Janabai
and PW 3 Gopinath who were the parents of deceased
Manjula.
6. PW 1 Janabai has stated that her daughter Manjula was
married to the appellant four years prior to the incident. The
appellant was ill-treating her daughter Manjula. Manjula
used to tell her about the ill-treatment given to her by the
appellant. PW 1 Janabai has stated that the appellant was
suffering from stomach ache and he was under impression
that they have done black magic on the appellant.
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7. PW 3 Gopinath who was the father of Manjula has
stated that his daughter used to tell them that her husband
i.e the appellant ill-treating her. She also used to tell him
that her husband was making allegations against her about
black magic.
8. As stated earlier, the prosecution has heavily relied on
the evidence of PW 4 Police Naik Kazi and PW 6 PSI
Deshmukh. PW 4 Police Naik Kazi has stated that on
8.1.2006, he was attached to Panchvati Police Station. At
about 10.00 a.m. to 10.30 a.m., the appellant came to the
Police Station. The appellant stated that he had killed his
wife as his wife was doing black magic on him. No doubt, we
have to exclude from consideration the statement of the
appellant to the police that he had killed his wife, however,
the statement of the appellant that his wife was doing black
magic on him can be taken into consideration because that
could not be said to be a confessional statement. This shows
the motive for the appellant to commit the crime. PW 4
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Police Naik Kazi has further stated that after the appellant
made a statement to him, they went to the spot along with
the appellant. There they saw the dead body of one lady
(Manjula) lying in the house. There was injury on the hand of
the lady and blood was oozing from it.
9. PW 6 PSI Deshmukh has stated that on 8.1.2006, he
was attached to Panchvati Police Station. At about 11.00
a.m., the appellant came to the Police Station in a hurry and
told that he had killed his wife by strangulating her with an
iron chain. The appellant has given his name as Raju
Pandurang Pawar. Again, we cannot take this statement
made by the appellant to PSI Deshmukh into consideration,
however, PSI Deshmukh has also stated that the appellant
told him that since last 6 months, his wife had done black
magic on him. This again shows the motive for the appellant
to commit the crime. As stated earlier, after the appellant
made a certain statement in presence of PW 4 Police Naik
Kazi and PW 6 PSI Deshmukh, the police along with the
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appellant and other staff went to the spot where they saw
the wife of the appellant lying dead with strangulation marks
on her neck.
10. It is the prosecution case that the appellant committed
the murder of his wife Manjula by strangulating her with an
iron chain. PW 5 Dr. Barve conducted the postmortem on
the dead body of Manjula. She found ligature marks on the
neck. There were three ligature marks one above the other
and close to each other. In addition, she noticed three
injuries on the left wrist and hand. In addition, Dr. Barve
noticed that left two incisors had fallen and there was
bleeding from the gums. One abrasion was also found on
the left leg. According to Dr. Barve, all the injuries were ante
mortem injuries. In the opinion of Dr. Barve, the death was
caused due to asphyxia due to strangulation. Dr. Barve has
further stated that the injuries of ligature marks could be
caused by Muddemal Object No. 1 i.e iron chain. Thus, the
medical evidence is in consonance with the prosecution
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case.
11. Thus, after the appellant made a certain statement at
the Police Station in presence of PW 4 Police Naik Kazi and
PW 6 PSI Deshmukh, when the police went with the appellant
to the spot to verify the fact, they found the wife of the
appellant lying dead with strangulation marks on her neck.
PW 5 Dr. Barve also found bleeding injuries on the person of
Manjula. At the time of arrest, the pant on the person of the
appellant was found stained with blood. The pant had few
blood stains ranging from 0.1 c.m. to 2 c.m. in diameter on
the front portion. PW 2 panch witness Hirtakar has deposed
about this aspect. The pant was sent to C.A. As per C.A.
report Exh. 12, the pant was stained with human blood. In
this connection, we may usefully refer to the decision of the
Supreme Court in the case Gura Singh Vs. State of
Rajasthan1, wherein it has been observed as under :
" In view of the authoritative pronouncement of this
Court in Teja Ram Case (1999) 3 SCC 507) we do not find
any substance in the submissions of the learned Counsel for the
appellant that in the absence of the report regarding the 'origin
1 (2001) 2 SCC 205
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of the blood, the trial Court could not have convicted the
accused. The Serologist & Chemical Examiner has found
that the chadar seized in consequence of the disclosure
statement made by the appellant was stained with human
blood. As with lapse of time the classification of the blood
could not be determined, no bonus is conferred upon the
accused to claim any benefit on the strength of such a
belated and stale argument. The trial Court as well as the
High Court were, therefore, justified in holding the
circumstance as proved beyond doubt against the
appellant."
Similar view has been taken by the Supreme Court in
the cases of R. Shaji Vs. State of Kerala2, Molai & Anr.
Vs State of Madhya Pradesh.3 and Khujji @ Surendra
Tiwari Vs. State of Madhya Pradesh4. It is pertinent to
note that the appellant has not given any explanation for the
presence of blood on his clothes.
12. It has not been brought on record that anyone else had
any motive to do away with the wife of the appellant but on
the other hand, the evidence on record shows that the
appellant had motive to commit the murder of his wife
Manjula. The evidence of PW 6 PSI Deshmukh shows that
2 (2013) 14 SCC 266
3 1999(9) SCC 581
4 AIR 1991 SC 1853
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the appellant and his wife Manjula were residing in the house
of Ramnath Pawar at Nasik where the appellant had come to
take treatment. However, on that day, Ramnath and his wife
had left the house at 6 a.m. Thereafter, there was no one in
the house except the appellant and his wife Manjula. Few
hours thereafter, Manjula was found dead. Thus, when
Ramnath and his wife came back to the house, they found
that Manjula was already dead. As stated earlier, the
evidence on record shows that the appellant and his wife
Manjula were the only two persons in the house at the
relevant time. In such case, the appellant has to explain
how the deceased sustained injuries and died. In this
connection, we may refer to Section 106 of the Evidence
Act.
13. 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
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which underlies Section 106 of the Evidence Act can be
applied in similar cases. In the case of State of Rajasthan
Vs. Kashi Ram5, 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
innocence, the Court can consider his failure to adduce any
explanation as an additional link which completes the chain.
14. On going through the record, we are of the opinion that
5 (2006)12 SCC 254 : AIR 2007 SC 144
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there is sufficient evidence to prove beyond reasonable
doubt that the appellant committed the murder of his wife
Manjula by strangulating her with an iron chain. Thus, we
find no merit in the appeal. The appeal is dismissed.
[ M.S. KARNIK, J ] [ ACTING CHIEF JUSTICE ]
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