Mangesh Dhaku Aalim vs The State Of Maharashtra
2021 Latest Caselaw 11549 Bom

                                                22 apeal 175-13 Judgment.doc




     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          CRIMINAL APPELLATE JURISDICTION

                CRIMINAL APPEAL NO. 175 OF 2013

Mangesh Dhaku Alim
Residing at - Room No.6,
Nagindas Pada, Nalasopara (E)                 ..Appellant
     V/s.
The State of Maharashtra                      ..Respondent
                            ----
Mr. Manish Mazgaonkar for the Appellant.
Mrs. M.M. Deshmukh, APP for the Respondent/State.
                            ----
                    CORAM : NITIN JAMDAR AND
                                 C.V. BHADANG, JJ.

                              DATE    : 23 AUGUST 2021


JUDGMENT (Per C.V.Bhadang J)

. By this Appeal, the Appellant is challenging the Judgment and Order dated 08 January 2013 passed by the learned Additional Sessions Judge at Vasai in Sessions Case No. 16 of 2012. By the impugned Judgment, the Appellant/accused has been convicted for having intentionally caused the death of his wife Asha alias Manali.

2. The Appellant was married with Asha alias Manali somewhere in the year 2006 and they had a son from the wedlock. According to the prosecution, the Appellant was Sneha Chavan page 1 of 10 22 apeal 175-13 Judgment.doc

suspecting the character of his wife and used to demand money from her. On account of this, the Appellant was ill-treating her.

3. The Appellant lodged a report with police station Nallasopara on 08 August 2011 stating that since 07 August 2011, his wife Manali was unwell as she was having chest pain. Manali slept without having food in the night and got up at about 7.45 a.m. on 08 August 2011. She, however, continued to complain about her chest pain and therefore, did not engage into a daily chores. The Appellant reported that at about 8.00 a.m. Manali while going to the bathroom, fell down and sustained injuries. She was initially removed to Manorama Hospital, however, due to unavailability of Doctor there, she was taken to Alliance Hospital at Nalasopara (East), where on examination she was declared dead.

4. On the basis of the said intimation (Exh. 27) a case of accidental death being AD No. 149 of 2011 was registered, with the concerned police station. It appears that during the course of inquiry of the said case of accidental death, PW-1 Mukund Jadhav, who is father of Manali lodged a complaint on 11 August 2011 alleging that the deceased was subjected to ill-treatment by the Appellant on account of the Appellant suspecting her character and also demand of money. PW-1 also reported that he had paid an amount of Rs.20,000/- to the Appellant for

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performing the marriage of his sister. PW-1 also reported that on 08 August 2011 at about 10.00 a.m., he learnt about the death of his daughter and went to Nalasopara and found that his daughter had injuries on her body. On such a complaint, the offence at Crime No. I-415 of 2011 was registered under Section 302 of IPC against the Appellant.

5. PW-5 ASI Sudhir Wagh conducted the investigation in the matter and after investigation a chargesheet was filed.

6. The learned Sessions Judge framed charge against the Appellant for the offence punishable under Section 302 of IPC. The Appellant pleaded not guilty to the charge and claimed to be tried. The defence of the Appellant as disclosed from the cross- examination and the submissions made at bar is that the deceased suffered an accidental death by fall while going to bathroom in the morning of the day of incident.

7. At the trial, the prosecution examined in all six witnesses and produced the record of investigation. The Appellant did not lead any evidence in defence.

8. The learned Sessions Judge has convicted the Appellant under Section 302 of IPC and sentenced the Appellant to suffer imprisonment for life and to pay a fine of Rs.3000/- and in default to suffer rigorous imprisonment of six months.

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9. We have heard the learned counsel for the Appellant and the learned APP. With the assistance of the learned counsel for the parties, we have gone through the record.

10. It is submitted by the learned counsel for the Appellant that there is discrepancy in the nature of the injuries found on the dead body of Manali as recorded in the inquest panchnama and those found by PW-4 Dr. Dipti Gaikwad, Medical Officer attached to Primary Health Centre (PHC) Nalasopara who conducted the postmortem examination. It is submitted that the Appellant himself had intimated the police about the injuries sustained by his wife on account of an accidental fall which is much prior in point of time to the complaint lodged by PW-1. It is submitted that thus, the defence about the deceased having sustained accidental injuries is probabilised. The learned counsel pointed out that PW-1 lodged the complaint three days after the incident i.e. on 11 August 2011, which is belated. It is submitted that Appellant has properly explained the circumstances in which his wife had sustained the injuries leading to her death.

11. The learned Counsel then submitted that the prosecution has not brought any evidence on record to exclude the case being covered by the Exception to Section 300 of IPC. In the submissions of the learned Counsel, the Appellant is not expected to bring on record these circumstances to show that case is not covered by any of the Exceptions under Section 300 of IPC. It

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was faintly suggested that there is no investigation to rule out the possibility of incident having happened on account of grave and sudden provocation.

12. The learned APP has submitted that the deceased was admittedly residing with the Appellant as his wife, who died in suspicious circumstances, with severe injuries found on her person. She, therefore, submitted that it is for the Appellant to explain the circumstances leading to the death of his wife, the same being within the special knowledge of the Appellant within the meaning of Section 106 of the Indian Evidence Act. It is submitted that evidence of PW-4 Dr. Dipti Gaikwad would clearly show that Manali suffered a homicidal death. It is submitted that there is no discrepancy insofar as the injuries found on the dead body are concerned and the Appellant having failed to explain the injuries, has rightly been convicted. The learned APP submitted that there are no circumstances much less evidence indicating that the incident was outcome of any grave and sudden provocation.

13. We have considered the rival circumstances and submissions made and we do not find that any exception can be taken to the conviction of the Appellant under Section 302 of IPC.

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Homicidal death

14. PW-4 Dr. Dipti Gaikwad has conducted the postmortem examination on the dead body of Manali. She has found the following external injuries on the dead body.

(i) Face completely cynosed and congested.

(ii) Left cheek - contusion injury circular 2.1/2 inche, bluish red.

(iii) Right cheek - 1 inch circular contusion injury, bluish red.

(iv) Multiple contusions, smaller over nasal bridge and cheek and also over upper lip and lower lip margins.

(v) Buccal mucosa of lip, both upper and lower has abrasion injuries with bleeding.

(vi) Eyes congested and protruded with conjunctival hemorrhages.

(vii) Tongue bitten by teeth,

(viii) Teeth 2/1 by 1/1 show bleeding gums with loosening of teeth.

(ix) Linear 3 cm x 1 x 0.1 cm contusion injury, abrased, over neck noted over thyroid anteriorly.

(x) Multiple nail abrasions over nape of neck, also laterally both sides.

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She had also found the following injuries on the lungs as mentioned in column No. 20 and teeth and the injuries in the

(i) Paley cynosed with multiple bluish red petechiel all over bilateral lung parenelymer.

(ii) Teeth loosened 2/1 by 1/, tongue bitten, bluccal mucosa of lips abrased.

There was also fracture of the spinal cord. She has opined that there is evidence of violent asplyxial death.

In her evidence, she has stated that as per final opinion, the cause of death is Violent Asphyxia due to smothering with manual strangulation. Thus, the evidence is sufficient to hold that Manali met with a homicidal death.

Consideration of the Prosecution Evidence

15. PW-1 Mukund Jadhav is the father of the deceased, PW-2 Amit Jadhav, is brother of the deceased while PW-3 Shanta Rane is the paternal aunt (sister of PW-1) of the deceased. All these witnesses have stated about the ill-treatment meted out to the deceased by the Appellant and the attempt being made to pacify the Appellant and to persuade him not to ill-treat his wife. The cross-examination of these witnesses would show that it was suggested to them that it was PW-3 Shanta Rane who was demanding money from the deceased and had even mortgaged the mangalsutra of the deceased for obtaining a loan. However,

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there is nothing on record or which is brought in the investigation to show that PW-3 obtained mangalsutra of the deceased for obtaining any loan or there was any demand from her side. We are also unable to accept that the paternal aunt of the deceased would demand money with her niece who is married. There are certain omissions brought out on record in the evidence of these witnesses vis-a-vis their police statements. These omissions relating to PW-2 Amit Jadhav and PW-3 Shanta Rane were put to the Investigating Officer PW-5 PSI Sudhir Wagh. However, we find that evidence of PW-1 Mukund Jadhav on the point of such demand and ill-treatment is natural and cogent which is also corroborated by the evidence of PW-2 and PW-3. We find that this part of the evidence about ill-treatment and demand which is the motive for commission of the offence, sufficiently established. However, what is significant is that the Appellant was admittedly residing with the deceased and the incident in which the deceased was found with severe injuries, had happened in the house of the Appellant. Thus, the circumstances in which the deceased had sustained those injuries, being within the special knowledge of the Appellant, it was for the Appellant to explain them within the meaning of Section 106 of the Indian Evidence Act, which the Appellant has failed to do. Quite to the contrary, the Appellant had reported to the police on 08 August 2011 that his wife was feeling unwell on account of chest pain and the following morning she accidentally fell down

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thereby sustaining the injuries. Admittedly, there is no evidence that the deceased was taken to any hospital for medical treatment on 07 August 2011. The Appellant had tried to explain it by saying that it being Sunday and Appellant having gone for work, she was not taken for medical treatment. What is significant is that the injuries found on the person of the deceased would clearly rule out the same being of an accidental nature. As noticed earlier, PW-4 Dr. Dipti Gaikwad has opined that Manali met with violent asphyxia death due to smothering with manual strangulation. In our considered view, the filing of the report Exh. 27 is an additional circumstance which lends credence to the prosecution case. It is trite that in a given case, where the prosecution evidence is found to be sufficient to show the complicity of the accused in the offence, a false defence lends further corroboration and credence to the prosecution case.

16. The contention that the prosecution has not brought on record any evidence to exclude the possibility of the offence falling under any of the Exception to Section 300 of IPC has only to be stated to be rejected. There is absolutely nothing on record to show that the incident was a result of any grave and sudden provocation. That is not even the defence taken by the Appellant before the learned Sessions Judge. We have carefully gone through the impugned judgment and we do not find that the

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conviction and sentenced awarded to the Appellant needs interference.

17. The Appeal is without any merit and is accordingly dismissed.

                      (C.V. BHADANG, J.)                  (NITIN JAMDAR, J.)

SNEHA
NITIN
CHAVAN
Digitally signed by
SNEHA NITIN
CHAVAN
Date: 2021.08.24
17:22:55 +0530




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