Shri Kisanrao S/O Shriram Badhe vs State Of Mah., Thr. P.S. Dabaki ...
2021 Latest Caselaw 2865 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR.

                        CRIMINAL APPEAL NO.841/2019

 Shri Kisanrao s/o Shriram Badhe,
 Aged about : 61 yrs, Occ : Labour,
 R/o Amarprit Colony, Balajinagar,
 Dabaki Road, Akola.                                                 ... APPELLANT

      VERSUS

 The State of Maharashtra,
 Through P.S.Dabaki Road,
 Akola, Tah. and Dist. Akola.                                        ... RESPONDENT
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 Shri Gautam S. Shegaonkar, Advocate (Appointed) for appellant.
 Shri T. A. Mirza, A.P.P. for respondent State.
 -------------------------------------------------------------------------------------------
                            CORAM: Z.A. HAQ & AMIT B. BORKAR, JJ.

DATED : 12/02/2021.

ORAL JUDGMENT (PER : AMIT B. BORKAR, J.)

1. The appellant, being aggrieved by the judgment and

order dated 4.5.2019 passed by the Additional Sessions Judge,

Akola, in Sessions Trial no.23/2007 convicting and sentencing

him to undergo rigorous imprisonment for life and to pay fine of

Rs.1000/- in default to undergo further rigorous imprisonment for

six months for offence punishable under Section 302 of the Indian

Penal Code, 1860, has come up in appeal before us.

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2. Shortly stated, the prosecution case runs as under:

Deceased Pradip Kisan Badhe was son of the accused

and was residing with his wife Sangita Badhe (PW 2) and the

accused together. In the year 2016, Sangita (PW 2) became

pregnant and, therefore, the deceased was making persistent

demand to the accused to construct separate room for him. Since

the accused was not ready to construct new room, there was

constant quarrel between the deceased and the accused. Fed up

by the said quarrel, Sangita (PW 2) had gone to her paternal

house for her delivery.

3. On 11.9.2016 around 10.30 p.m. friend of the deceased

Dipak Bawane (PW 4) reached the house of the accused. The

accused was alone present in the house. Around 11.30 p.m. the

accused made phone-call to Sangita (PW 2) and informed her that

the deceased was behaving in disorderly manner under the

influence of liquor. On the same night, daughter of the accused

Sujata Patharikar, who is resident of Manabda, made phone-call

to Sunil (PW 1), brother of Sangita (PW 2) and informed him

that the deceased died due to heavy consumption of liquor and it

was further told to Sunil (PW 1) not to disclose this fact to Sangita

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(PW 2). Sunil (PW 1) informed Sangita (PW 2) about the death

of the deceased in the morning. They went to the house of the

accused. The friends of the deceased were also gathered there. On

inquiry, the accused informed them that the deceased died due to

heavy consumption of liquor in the night. When the body of the

deceased was taken out of the house for wash and clothes were

removed, Sangita (PW 2) and other witnesses noticed ligature

marks around the neck of the deceased. Therefore, Sangita (PW 2)

lodged report with the Police.

4. After preparing inquest panchanama, the Police sent the

body of the deceased for post-mortem. The report of the post-

mortem stated that the death of the deceased was caused due to

"neck compression by ligature material". The police arrested the

accused and investigation was carried out. When the accused was

in police custody, he allegedly made disclosure statement and

informed the police that he strangulated the deceased by means of

cable wire. The accused shown his willingness to show the place

where he concealed cable wire. Accordingly, his disclosure

statement was recorded in presence of panchas. After completion

of the investigation, Charge-sheet came to be filed in the Court of

Judicial Magistrate First Class, Court no.8, Akola, who committed

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it to the Court of Sessions where the appellant was charged for

offence punishable under Section 302 of the Indian Penal Code, to

which he pleaded not guilty and claimed to be tried.

5. During trial, in all the prosecution examined eight

witnesses. We may straightway mention that there is no eye-

witness of the incident and the case rests entirely on the

circumstantial evidence. The learned Trial Judge believed the

circumstantial evidence adduced before him and convicted and

sentenced the appellant in the manner stated in paragraph 1

above. Hence, this appeal.

6. We have heard Shri Gautam S. Shegaonkar, learned

Advocate for the appellant and Shri T.A.Mirza, learned Additional

Public Prosecutor for the respondent - State and perused entire

material on record. We are constrained to observe that there is

sufficient circumstantial evidence to connect the appellant with

the crime.

7. We have reached the said conclusion bearing in mind

that the conviction can only be made on the basis of

circumstantial evidence if -

(a) The circumstances are firmly established against the

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accused;

(b) They are fully consistent with the inference of guilt of

the accused;

(c) They are fully inconsistent with the inference of

innocence of the accused; and

(d) They are incapable of being explained of any reasonable

hypothesis accepting the guilt of the accused.

8. A perusal of the impugned Judgment shows that the

learned trial Judge has relied upon the following circumstances

for recording the conviction of the appellant :

(i) The appellant and the deceased were last seen together;

(ii) Motive for the appellant to kill the deceased;

(iii)Recovery of dead body from the house of the appellant ;

(iv) False defence of the appellant;

(v) Failure of the appellant to discharge statutory burden on him, in terms of Section 106 of the Evidence Act;

(vi) Unnatural conduct of the accused; and

(vii) Discovery of the place of concealment of cable wire and recovery thereof.

9. So far as the first circumstance is concerned, there is

sufficient material on record in support of the finding that the

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appellant and the deceased were last seen together in the house.

The said circumstance is established from the statement of Dipak

Bawane (PW 4) and Umesh Dhore (PW 7). Dipak Bawane (PW 4)

and Umesh Dhore (PW 7) were the friends of the deceased, who

categorically stated that on 11.9.2016 deceased was with them.

Around 11.00 p.m. when they reached house of appellant to drop

deceased, the appellant alone was present in the house. During

cross-examination of Dipak Bawane (PW 4) and Umesh Dhore

(PW 7) and in his own statement under Section 313 of the Code

of Criminal Procedure, the appellant has not disputed that he was

alone present in the house alongwith the deceased. From the

evidence of PW 5 API , it is established that when he opened rear

door of the house, he found the accused present in the house near

the dead body of the deceased. Therefore, the prosecution has

proved beyond reasonable doubt the circumstance that the

appellant and the deceased were last seen together on the night of

commission of Crime.

10. We now take up the circumstance (ii) namely motive.

The prosecution has examined wife of deceased Sangita (PW 2).

She, in her testimony, stated that there was dispute between the

appellant and the deceased about construction of extra room in

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the house. Sangita (PW 2) stated that she was pregnant and,

therefore, the deceased used to insist the appellant to make

construction of separate room and on this count, there were

quarrels between the appellant and the deceased continuously.

She stated that it is because of this dispute of the accused with the

deceased, Sangita (PW 2) had left the house and the accused was

blaming the deceased for desertion by his wife. It is clear from the

evidence of Sangita (PW 2) that the deceased was persistently

making demand for separate room and the accused was not ready

for the same. Therefore, this persistent demand for separate room

and refusal by the appellant resulting in frequent quarrel, was the

motive for the accused to commit murder of the deceased.

11. We have gone through the evidence of Sangita (PW 2)

and we find it to be implicitly reliable. Although, she was

subjected to extensive cross-examination, but nothing could be

extracted therefrom, which would dislodge her evidence on

motive. In our view, the evidence of Sangita (PW 2) proves that

the appellant had strong motive to commit murder of the

deceased. We feel that the circumstance of motive is established

and is a very clinching circumstance against the appellant.

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12. We also feel that in relation to circumstance (iii) namely

recovery of dead body from the house of the appellant, the

prosecution has adduced weighty evidence of Sunil (PW 1),

Sangita (PW 2) . The evidence of said witnesses show that they

found the corpse of deceased in the house wherein the appellant

was living with the deceased. It is pertinent to mention that the

evidence of Sunil (PW 1) and Sangita (PW 2) show that when

they reached house of the appellant in the morning, the appellant

was sitting beside the dead body of the deceased. We have gone

through the evidence of said two witnesses examined by the

prosecution to prove this circumstances, and we feel that their

evidence clinchingly show that the dead body of the deceased was

recovered from the house of the appellant.

13. We also feel that circumstance (iv) that the appellant

took a false defence has also been established beyond reasonable

doubt. In respect of this circumstance, the accused while cross-

examining Sangita (PW 2) adopted a defence that the deceased

hanged himself. This defence was obviously a tissue of lies, as

the Autopsy Surgeon had not found any injury attributable to the

suicide, but he found the evidence of strangulation. Dr. Shyam

Bhagat (PW 6) on examination on 12.9.2016 found following

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injuries on the dead body of the deceased:

"(i) Evidence of ligature marks present around the neck, placed obliquely above thyroid cartilage running backward towards both sides, deficient over nape of the neck. Neck circumference - 33 cm.

(ii) Ligature marks of 26 cm in length and 1 cm in width, reddish in colour.

(iii) Ligature marks situated 6 cm below from chin and 8 cm above from supra sternal notch and 5 cm below from left mastoid process and 4 cm below from tip of right mastoid process and 161 cm above the heel.

(iv) On dissection underlying neck tissue dry, white and glistening, there was evidence of petechial hemorrhages above and below the ligature marks. There is no evidence of fracture to thyroid as well as cricoid cartilage. There is no evidence of fracture to hyoid bone. There is evidence of multiple petechial hemorrhage, above and below the epiglottis and mucosa of larynx, trachea and bronchi are congested.

           (v)           I found internal injury as shown in
           column No.19 of          PM report under the heading

(iii) Brain was intact, congested and oedematous matter.

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           (vi)          I also found injury in column No.20 of

PM report under the heading of thorax. Right and left lung were congested oedematous matter".

14. In his opinion, the death was caused due to "neck

compression by ligature material". In his opinion, though death

was due to neck compression by ligature material but, the

possibility of strangulation cannot be ruled out. The learned Trial

Judge has discussed death by strangulation in paragraph nos. 37

to 39 of its judgment, which reads as under:

"37. Strangulation is that form of asphyxia which is caused from constriction of the neck by a ligature without suspending the body. As per Medical Jurisprudence by Dr. K.S.Narayan Reddy, a pulling a U-shaped ligature against the front and sides of the neck while standing at the back can cause death. It is of two types (a) strangulation by a ligature (b) manual strangulation or throttling. In a case of strangulation of sudden and violent compression, the windpipe causes almost immediate insensibility and death. In such cases, death may be caused due to (i) asphyxia, (ii) cerebral anoxia or venous congestion,

(iii) combined asphyxia and venous congestion (iv) vagal inhibition and (v) rarely fracture-dislocation of

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cervical vertebrae.

38. Medical jurisprudence says that strangulation is mostly homicidal, whereas hanging is suicidal. In a case of strangulation, marks are horizontal or traverse, continuous, groove is soft and reddish, bleeding from nose, mouth and ear are common.

39. In a suicidal strangulation, signs of venous congestion are well developed about the ligature and are prominent at the root of the tongue.

Whereas in a case of homicidal strangulation the mark may either completely encircle the neck or may be seen only at the front when the ligature is pulled tightly from behind. The mark may also sloping if ligature is pulled upward from behind and the position is high up at the level of hyoid bone. Evidence of strangulation are usually found, but if a person is unaware and the ligature is suddenly placed around the neck and pulled tightly, the person loses consciousness quickly and is unable to offer much resistance. ownership of the ligature become important clue in such cases."

15. We have gone through the evidence of doctor to prove

this circumstance and we feel that the appellant has taken false

defence. It is well settled that in cases of circumstantial evidence,

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false defence is an incriminating circumstance.

16. We also feel that the circumstance (v) namely failure of

appellant to discharge statutory burden fastened on him by

Section 106 of the Evidence Act is proved. The said Section

provides that "when any fact is especially within the knowledge of

any person, the burden of proving the fact is upon him". Since the

deceased was killed in the house of the appellant and his dead

body was recovered from the house where appellant and

deceased were residing, it was incumbent upon him to explain

how the deceased was killed. In his statement under Section 313

of the Code of Criminal Procedure, the appellant has not disputed

that he was alone present in the house alongwith the deceased. It

has come in the evidence of Sangita (PW 2) that the accused

made a phone-call and told her that the deceased was behaving in

unruly manner. In view of the evidence of two prosecution

witnesses referred above, which unequivocally show that the dead

body was recovered from the house of the appellant, we are not

prepared to accept the defence of the appellant that the accused

hanged himself.

17. We also feel that circumstance (vi) namely unnatural

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conduct of the accused is proved by the prosecution. It is clear

from the post-mortem report that the deceased died in the

midnight when the accused was alone in the house. It is to be

noted that had it been the case of suicidal hanging by the

deceased, the accused would not have spent whole night alone

with the dead body with folding hands. His natural conduct which

was expected from him was to inform neighbours, the police and

to shift the accused to the hospital immediately. Moreover, it is

clear from the evidence of Sunil (PW 1), Sangita (PW 2), that

when they reached the house of the accused in the morning the

appellant was found sitting near the dead body. On inquiry about

the death of deceased, the appellant explained that the deceased

died due to heavy consumption of liquor. If according to the

appellant, the deceased committed suicide by hanging himself he

should have established the said fact to the satisfaction of a

person ordinary prudence as this fact was within his special

knowledge. In our considered opinion, this unnatural conduct of

the appellant is relevant link in the chain of the circumstances

demonstrated by the prosecution.

18. Now, we come to the last circumstance namely

discovery of the place of concealment of cable wire and recovery

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thereof. The prosecution has relied upon the evidence of

Shivkumar Agrawal (PW 5) to prove discovery of place of

concealment of wire and recovery thereof. Shivkumar Agrawal

(PW 5) is an independent witness. Shivkumar Agrawal (PW 5)

stated that on 12.10.2016 he attended Dabki road Police Station

and he accompanied P.I. Shri Katkar. He stated that the appellant

made voluntary disclosure statement that he had kept cable wire

in the bathroom and he will hand it over and requested to

accompany him. Thereafter, the appellant took panchas to his

house and the appellant took out one black colour wire from the

corner of bathroom, which was recovered under pachanama

(Ex.26). From the evidence on record, it is clear that place of

concealment of cable wire was private property and it was not

accessible to any other person. The prosecution has duly proved

that the accused was author of concealment of cable wire, which

was seized at the instance of the appellant, in pursuance of his

statement under Section 27 of the Evidence Act.

19. For the said reasons, we confirm the conviction and

sentence of the appellant for offence punishable under Section

302 of the Indian Penal Code and dismiss this appeal.

The appellant is in jail and shall serve out his sentence.

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20. Fees of the Advocate appointed to represent the

appellant be paid as per the Rules.

                  JUDGE                                           JUDGE



 Ambulkar