The State Of Mah vs Ramnath Dhondiram Dandge
2018 Latest Caselaw 579 Bom

                                                      Cri. Appeal No. 2/2006
                                        1


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

                         CRIMINAL APPEAL NO. 2 OF 2006

       The State of Maharashtra
       Through : Police Station Officer,
       Chikalthana, Dist. Aurangabad.               ....Appellant.

                        Versus

       Ramnath s/o. Dhondiram Dandge,
       Age 30 years, Occu. Agril.,
       R/o. Warud-Kaji, Tq. and District
       Aurangabad.                                  ....Respondent.



Mr. M.M. Nerlikar, APP for appellant/State.
Mr. S.G. Ladda, Advocate for respondent.


                                CORAM   :T.V. NALAWADE AND
                                         SUNIL K. KOTWAL, JJ.

RESERVED ON : 12/01/2018 PRONOUNCED ON : 18/01/2018

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

1) The appeal is filed against judgment and order of

Sessions Case No. 108/2005, which was pending in the Court of

learned Additional Sessions Judge, Aurangabad. The Trial Court has

acquitted all the accused of the offences punishable under sections

498-A, 302 r/w. 34 of Indian Penal Code (hereinafter referred to as

'IPC' for short). The present appeal is filed only against accused No.

1 Ramnath s/. Dhondiram Dandge. Both the sides are heard.

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

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present proceeding can be stated as follows :-

Deceased Chandrakala was sister of first informant

Vaijinath Palaskar. Vaijinath is resident of village Palsi, Tahsil and

District Aurangabad. Chandrakala was given in marriage to accused

No. 1 Ramnath Dandge about seven years prior to the incident in

question. Ramnath hails from village Warud Kazi, Tahsil and District

Aurangabad. Lilabai, another sister of Vaijinath was also given in

marriage in the same village i.e. Warud Kazi and the house of Lilabai

is situated at some distance from the house of accused persons.

Accused No. 3 is mother of accused No. 1, accused No. 2 is real

brother of accused No. 1 and accused No. 4 is wife of accused No. 2.

Two issues were born to the deceased from accused No. 1.

3) From about two years prior to the date of incident, the

deceased had started disclosing to her relatives on parent's side that

all the accused were giving illtreatment to her. The deceased had

disclosed that there was illicit relation between accused No. 1 and

accused No. 4. She had disclosed that accused had suspicion that

the deceased was disclosing about this relationship to persons from

outside and due to that, they were giving illtreatment to her. On

petty counts, accused were quarreling with deceased and they were

even giving beating to the deceased. On the day of Dasara festival of

the year 2004, accused No. 4 had given beating to deceased for the

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same reason and that was also disclosed by the deceased to first

informant and other relatives.

4) The incident in question took place on the night between

1.12.2004 and 2.12.2004. Chandrakala was murdered on that night

in the house where she was cohabiting with accused No. 1. On

2.12.2004 at about 7.00 to 7.30 a.m. Lilabai sister of deceased

heard hue and cry and so she rushed towards the house of accused

and then she learnt that Chandrakala was murdered. Information

was received by the first informant and other relatives of the

deceased from parent's side and they also rushed to village Warud-

Kazi from Palshi. Prior to that, A.D. report was given by Police Patil

of village Warud Kazi on the basis of information given by cousin of

accused No. 1 and A.D. was registered.

5) A.P.I. Indal Bahure of Chikalthana Police Station had

started making inquiry in to the A.D. report prior to arrival of first

informant. He prepared the spot panchanama, inquest panchanama

and he referred the dead body for P.M. examination to Government

Hospital. Doctor, who conducted P.M. examination on the dead body,

gave opinion that the death took place due to throttling. After that,

the first informant gave report to Chikalthana Police Station and the

crime came to be registered at 7.45 p.m. on 2.12.2004. The dead

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body of Chandrakala was taken in custody by the first informant and

the relatives on parent's side did the funeral on the dead body. The

accused persons were not available on that day. Accused Nos. 2 to 4

came to be arrested on 3.12.2004 and accused No. 1 came to be

arrested on 4.12.2004. Allegations were made against all the four

accused by the first informant of aforesaid nature and he had

expressed that as the deceased was proving to be an obstacle in

illicit relationship of accused Nos. 1 and 4, the murder was

committed.

6) During the course of investigation, the statements of

witnesses, some of whom are residents of village of accused and

some of whom are residents of village of first informant came to be

recorded. After completion of investigation, the chargesheet came

to be filed against all the four accused persons for the aforesaid

offences.

7) The charge was framed for aforesaid offences. The

accused pleaded not guilty. The prosecution examined in all seven

witnesses. All the accused took the defence of total denial. In the

statement given under section 313 of Criminal Procedure Code

(hereinafter referred to as 'Cr.P.C.' for short), accused Nos. 2 to 4

said that the dead body was lying in construction situated on the

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backside (where accused No. 1 was living with deceased). Accused

No. 1 gave statement under section 313 of Cr.P.C. that three days

prior to the date of incident he had left Warud Kazi for Alandi and he

learnt about the death of deceased on 3.12.2004 and he returned to

Warud Kazi on 4.12.2004.

8) The Trial Court has held that accused No. 1 and the

deceased were living separate from other accused and they were

living in the backside rooms where the incident took place. The Trial

Court has held that it is homicide. But the Trial Court has held that

there is no evidence to show that accused No. 1 was present in the

house on that night. The Trial Court has held that the explanation

offered by accused No. 1 that he had gone to Alandi one day prior to

the date of incident needs to be accepted. (In statement given under

section 313 of Cr.P.C. accused No. 1 has stated that he had left the

station three days prior to the date of incident for Alandi).

9) The Trial Court has used some observations made by the

Apex Court while deciding some criminal appeals and on that basis,

the Trial Court has held that the prosecution has failed to prove the

offences as against all the four accused.

10) The arguments advanced in the present proceeding show

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that accused have not seriously disputed that Chandrakala died

homicidal death. The Trial Court has also given finding that she died

homicidal death. In view of the circumstance that the murder took

place at the residential place of accused No. 1, the medical evidence

needs to be considered as in some cases the medical evidence

creates some probability due to the circumstance that the incident

had taken place when the deceased was in the custody of the

accused.

11) Dr. Lamb (PW 4) conducted P.M. examination on the

dead body of Chandrakala on 2.12.2004 between 2.30 p.m. and

4.30 p.m. The evidence of doctor shows that fairly pulpy material of

50 C.C. of semi-digested food was found in stomach. The A.D. report

was given by Police Patil of the village which is proved in the

evidence of Investigating Officer Indal Bahure (PW 7) as Exh. 27. It

shows that the death took place on the night between 1.12.2004

and 2.12.2004. Exh. 27 is not much disputed by the defence. One

Digamber, cousin of accused Nos. 1 and 2 had informed to Police

Patil about the death and this report is relevant under section 6 of

Evidence Act. This evidence is sufficient to prove that the murder

took place on the night between 1.12.2004 and 2.12.2004. In the

cross examination, doctor has admitted that the death took place

within 24 hours prior to 2.30 p.m. of 2.12.2014. But, that opinion is

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given on the basis of rigor mortis. For determining the time of death

the contents of stomach need to be considered as relevant

circumstance and on that basis, it can be said that the death had

taken place within few hours of taking last meal by the deceased.

12) Dr. Lamb (PW 4) found following external injuries on the

dead body.

(1) Multiple abraded contusions over left lateral aspect of

the neck.

(i) Situated 6.5 c.m. below the left mastoid process

having size .5 x .5 cm.

(ii) Situated 6.5 to 7 c.m. below the mastoid process

having size 0.5 x 0.5 c.m. of irregular shape.

(iii) Situated below the mastoid by 7 to 7.7 c.m. havig

size .6 x.5 cm.

(iv) Situated 8.5 x 9 c.m. from mastoid process having

size .3 x 1 c.m. respective.

The above injury Nos. (i) to (iv) were away from the

middle line of the neck at the distance of (1) 6.5 c.m. (2) 7

c.m. (3) 7.5 to 8 c.m. and (4) 6.5 to 7.5 c.m. respectively

on anterior surface of the neck. All these injuries were

reddish in colour and situated in an area of 3.5 x 2 c.m.

(v) Abraded contusion on deltoid region of left side 1.8

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c.m. It was reddish in colour.

(vi) There was evidence of tear on mocosal surface of

lower lip. There were two tears, situated .5 to 1 c.m. from

the middle line having the size of sesame seed with blood

oozing and contused, corresponding to the central lateral

incisor tooth of upper jaw.

Dr. Lamb (PW 4) has given evidence that all the aforesaid injuries

were ante-mortem in nature.

13) Dr. Lamb (PW 4) found petichial haemorrhage on white

matter of brain on internal examination. Following more internal

injuries were found by the doctor and they are as under :-

(i) On dissection of neck haemorrhagic contusions in the

sterno cleido mustoid on right side at middle part anterior

with anterior boarder of 1.5 x 0.5 cm was noticed. They

were vertically placed on let side of the neck. There was

haemorrhagic contusion in platysma having size 1.5 x 1.5

cm. It was reddish in colour.

(ii) On dissection of thoarx no injuries were noticed on

the walls and pleura. In larynx there was evidence of

hyperaemic zone in epiglottic region and petichae in

pyriform fossa. Both the lungs were congested and

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oedematous.

14) The evidence of Dr. Lamb (PW 4) shows that the

deceased was pregnant. Doctor has given evidence that the death

took place due to throttling and this opinion is given on the basis of

aforesaid injuries noted by him. The P.M. report is proved as Exh. 20

in the evidence of Dr. Lamb (PW 4). In the cross examination, it is

brought on the record that such injuries could not have been caused

by the deceased herself.

15) The evidence of A.D. report is already quoted. In the

evidence of panch witness Babasaheb Dandge (PW 3), who is

resident of Warud Kazi, the spot panchanama is proved as Exh. 18.

The evidence shows that there is some open space between two

constructions. One construction is towards north side towards road

and other construction is towards south side. In the cross

examination of Dandge (PW 3), the defence has brought on the

record that accused No. 1 and deceased were living in backside

room where incident took place. The evidence of other panch

witness Sudam (PW 2), who is examined to prove the inquest

panchanama (Exh. 16) shows that the dead body was present in

backside room where accused No. 1 was living with the deceased.

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16) The issues of the deceased were kids. Accused No. 1 was

the only elder member other than the deceased living in that room.

In view of provisions of section 114 of Evidence Act, Court may

presume existence of certain facts. Section 114 of evidence Act runs

as under :-

"114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."

17) In the case reported as AIR 1979 SUPREME COURT

1848 [Syed Akbar Vs. State of Karnataka], the Apex Court has

laid down that the Court has discretion to draw presumption of facts

and the Court needs to decide as to whether the discretionary power

given under section 114 of Evidence Act needs to be used. That

decision needs to be taken on the basis of facts of that case. It is

laid down that the presumption of facts available in this section i.e.

the inference available needs to be drawn from experience and

observation of the human mind, springs of human action, the usages

and habits of society and ordinary course of human affairs.

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18) In the case reported as AIR 1986 SUPREME COURT

1099 [M/s. Sodhi Transport Co. and Anr. Vs. State of U.P. and

Anr.], the Apex Court has laid down that the presumption available

under section 114 of Evidence Act can make out prima facie case for

a party in whose favour the presumption exists. It is observed that

as it is a rule concerning evidence, it becomes necessary for

opposite party to rebut it by giving evidence.

19) The evidence of the present matter shows that accused

No. 1 was living in the room with the deceased where the murder

took place. Accused No. 1 is an agriculturist. The evidence on the

record does not show that accused has any relative at Alandi and

there was any reason for him for going to Alandi and staying there

for such a long time, for about six days. In ordinary course, a male

member of family where there is only one adult male member does

not leave station for days together. The male member stays at home

in the night time and he leaves home in the day time for work.

Though the Trial Court has held that explanation is given by accused

No. 1 that he was out of station one day prior to the date of incident,

the statement given by accused No. 1 under section 313 of Cr.P.C.

shows that accused No. 1 contended that he had left home three

days prior to the date of incident. In the statement under section

313 of Cr.P.C., accused No. 1 has further contended that he returned

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to his village Warud Kazi on 4.12.2004 and he had learnt first time

on 3.12.2004 about the incident. Thus, he admits that he was able

to keep contact with his family if he was at Alandi and he admits

that he was not at station up to 4.12.2004. In view of provision of

section 114 of Evidence Act, it was necessary for accused No. 1 to

give particulars as to where he was living in Alandi for the period

given by him, for about six days. He could have examined witnesses

and he could have produced some record if such record was created

to create a probability that on the night between 1.12.2004 and

2.12.2004 he was not at Warud Kazi. That is not done by accused

No. 1.

20) In view of aforesaid facts and circumstances of the case,

this Court holds that the presumption of fact that accused No. 1 was

present at his residential place on the night between 1.12.2004 and

2.12.2004 needs to be drawn. This presumption of fact and

aforesaid circumstances create a prima facie case in favour of

prosecution and that discharges the initial burden of prosecution to

show that accused No. 1 was present at the place of his residence

where the murder took place.

21) As soon as the aforesaid inference is drawn, the case

becomes the case of custodial death. In such a case, the provision of

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section 106 of Evidence Act, which makes available legal

presumption and which creates burden of proof becomes available

against accused No. 1. The provision of section 106 of Evidence Act

runs as under :-

"106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

22) Accused No. 1 has taken the defence of total denial and

he has not offered any explanation about the circumstances leading

to death of Chandrakala. These circumstances were especially within

the knowledge of accused No. 1. Due to these circumstances, the

provision of section 114, illustration (g) of Evidence Act becomes

available against accused No. 1 and the illustration is as under :-

"(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;"

This provision again enables the Court to draw inference of the fact

that it is accused No. 1 who committed the murder. In view of the

facts and circumstances of the present case, this Court holds that

this presumption also needs to be drawn against accused No. 1.

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23) There is more than sufficient circumstantial evidence on

record as against accused No. 1. In the present matter, A.D. report

ought to have been given by accused No. 1, but he did not give such

report. The evidence about A.D. report shows that cousin of accused

No. 1 was required to give information about the death to Police

Patil. Even accused Nos. 2 to 4 did not inform anything to Police Patil

and they were not available to police on 2.12.2004 and they came to

be arrested on 3.12.2004 as per the evidence given by Investigating

Officer Indal Bahure (PW 7). Evidence is given by Investigating

Officer Bahure (PW 7) and other witnesses like Vaijinath (PW 1),

Sudam (PW 2) and also Lilabai (PW 5) that accused No. 1 was

absconding. Bahure (PW 7), Investigating Officer has given specific

evidence that accused No. 1 was absconding till 4.12.2004. Accused

No. 1 has also admitted that he became available to police on

4.12.2004. It does not look probable that accused No.1 did not know

about the incident till 4.12.2004 and he learnt about it when he

made inquiry on telephone on 3.12.2004. F.I.R. was given on

2.12.2004 itself by brother of the deceased and in that F.I.R., all the

accused persons were named. It does not look probable that

accused No. 1 did not learn anything. The aforesaid conduct of

accused No. 1, of his absconding and avoiding to give report about

the unnatural death of Chandrakala is relevant under section 8 of

Evidence Act. These circumstances need to be used in the present

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matter as incriminating circumstances against accused No. 1.

24) It is not trite law that in every criminal case based on

circumstantial evidence, prosecution needs to prove motive for the

crime. When it is a case of custodial death, only accused can tell as

to what happened exactly at the relevant time and what was the

reason for the offence. This Court has already observed that nature

of injuries found on the dead body also helps the Court in

ascertaining as to who must have been involved in the offence. The

evidence on the record shows that there was virtually no

opportunity, scope to the deceased to offer resistance on that night.

Further, it was night time and if husband was not at home, she

would not have opened the door of house at night time for anybody.

The nature of injuries and the time of incident shows that only the

person from the family of deceased could have committed this

murder.

25) Vaijinath (PW 1), brother of the deceased, Sudam (PW

2), Lilabai (PW 5) and Kashinath (PW 6) have given evidence on

motive. They have given evidence that from about two years prior

to the date of incident, the deceased was disclosing that accused No.

1 had illicit relation with accused No. 4 and due to that, there was

illtreatment to her. The evidence given on motive by these witnesses

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is consistent with each other. As the prosecution has proved that it is

murder and it is accused No. 1, who has committed murder, the

evidence on disclosure of deceased becomes available under section

32 of Evidence Act. Considering the nature of allegations made in

the disclosure and the circumstance like absence of any explanation

from accused No. 1, this Court holds that the evidence given by

these witnesses on motive needs to be used atleast as against

accused No. 1, present respondent. This evidence is also relevant

under section 8 of Evidence Act. Thus, there is more than sufficient

evidence on record to prove that it is accused No. 1, who committed

murder of Chandrakala. The learned Judge of the Trial Court has not

considered the aforesaid circumstances and the aforesaid provisions

of law are also not touched by the learned Judge of the Trial Court.

The learned Judge of the Trial Court has only considered some

observations made by the Apex Court in some reported cases which

were made in view of the facts of those cases.

26) The discussion made above shows that the evidence is

mainly as against accused No. 1. Other accused were living separate

from the family for accused No. 1. If at all there was grievance

against the deceased for any relative of accused No. 1, that person

can be accused No. 4 in view of the nature of allegations made by

the prosecution witnesses. But, as against accused No. 4 also there

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was only the evidence of disclosure made by the deceased to the

witnesses. This Court holds that on the basis of such disclosure

evidence, which can be used as motive, it was not possible to

convict accused No. 4 for the offence punishable under section 498-

A of IPC. Though the incident took place at some distance from the

place where accused were living, there is clear possibility that

accused No. 1 had taken the decision separately without consulting

others to finish the deceased and other accused had no knowledge

about this act. The evidence of Lilabai (PW 5) also shows that she

learnt about the incident on the morning of 2.12.2004 when she

heard hue and cry coming from the side of the house of accused.

The evidence of Lilabai (PW 5) has created a probability that accused

Nos. 2 to 4 realised about the incident on the morning of 2.12.2004,

though there is circumstance that they were also not available to

police on 2.12.2004 and they came to be arrested on 3.12.2004.

Due to these circumstances, it is not possible to draw the inference

that they were party to aforesaid incident. The main circumstance in

their favour is the admission of the witnesses to the effect that

accused No. 1 was living separate with his wife in backside room and

this circumstance has created a probability in favour of other

accused that they had no reason or opportunity to commit the

offence. Thus the nature of evidence available against accused No. 1

is different from the evidence available against accused Nos. 2 to 4.

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27) The evidence of Lilabai (PW 5) given on presence of the

accused at Warud Kazi on 2.12.2004 is hit by omissions in statement

given to police. Further, the police statement was recorded on

8.12.2004 when the incident took place on 2.12.2004. The Trial

Court has not believed Lilabai (PW 5) on this part of evidence. This

Court is also not inclined to believe Lilabai on that part of evidence

and so, that part of evidence is not discussed in detail.

28) The learned counsel for respondent, accused No. 1

placed reliance on some observations made by the Apex Court in

some reported cases. In the case reported as AIR 2004 SUPREME

COURT 4408 [Rajkumar Vs. State of M.P.], the Apex Court held

that the circumstance that the incident took place in noon time in

the bed room of the accused cannot connect the accused with the

crime as there was long time gap between the incident of last seen

and the time of murder. The learned counsel drew the attention of

this Court to para Nos. 8, 9 and 13 wherein some observations are

made by the Apex Court. Assault was made on the deceased and it

was also the case of prosecution that the deceased had given dying

declaration against her husband, accused. Thus, the facts were

different and apparently, the provisions of sections 114 and 106 of

Evidence Act were not available. The Trial Court has considered the

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observations made by the Apex Court in the reported case cited

supra for giving decision of acquittal. Criminal cases cannot be

decided on the basis of observations which are made in criminal case

by High Court or Supreme Court as they are on the basis of facts of

that case. One circumstance her and there in criminal case can

change the fate of the matter. Relevant facts and circumstances of

the present matter are already quoted by this Court.

29) Reliance was placed by the learned counsel for

respondent, accused No. 1 on the observation made by the Apex

Court in the case reported as AIR 2001 SUPREME COURT 2124

[Arvind Singh Vs. State of Bihar]. In that case, the death had

taken place due to burn injuries and case was filed for the offence

punishable under section 304-B of IPC. There was dying declaration

allegedly made to the mother of the deceased just before few

minutes of her death. The evidence on dying declaration was found

to be suspicious and there were other circumstances creating

suspicion about the case of prosecution. In view of the facts of that

case, the Apex Court gave decision of acquittal in favour of accused.

The facts of this reported case were altogether different.

30) The learned counsel for respondent, accused No. 1

placed reliance on some observations made by the Apex Court in the

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case reported as AIR 1981 SUPREME COURT 765 [Shankarala

Gyarasilal Dixit Vs. State of Maharashtra]. He took this Court

through the observations made at para Nos. 31 and 32. In view of

the facts of that case, the Apex Court held that the accused was

entitled to acquittal. This Court has already observed that the facts

and circumstances of each and every criminal case are always

different and the Courts are expected to decide the criminal cases on

the basis of facts of that case and law needs to be applied to the

relevant facts of that case.

31) In view of the facts and circumstances of the present

case, this Court has no hesitation to observe that the Trial Court has

committed error in acquitting accused No. 1, husband of the

deceased. Though the husband cannot be convicted for the offence

punishable under section 498-A of IPC, he cannot escape the

conviction for the offence of murder. In the result, following order is

made.

                                 ORDER

(I)             The appeal is partly allowed.

(II)            Accused No. 1 Ramnath s/o. Dhondiram Dandge stands

convicted for the offence punishable under section 302 of IPC and he

is sentenced to suffer imprisonment for life. He is also sentenced to

pay fine of Rs.1,000/- (Rupees one thousand). In default of payment

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of fine, he is to further undergo rigorous imprisonment of one

month.

(III) Accused No. 1 is entitled to set off in respect of the

period for which he was behind bars as under trial prisoner in the

present matter.

(IV) He is to surrender to his bail bonds for undergoing the

sentence.

        [SUNIL K. KOTWAL, J.]             [T.V. NALAWADE, J.]



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