Rajkumar S/O. Bhurelal Choudhary vs State Of Maharashtra Thr. Police ...
2021 Latest Caselaw 9024 Bom

                                       1                                       APEAL15.18.odt


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 : NAGPUR BENCH : NAGPUR.


                      CRIMINAL APPEAL NO. 15 OF 2018


 APPELLANT                     : Rajkumar S/o Bhurelal Choudhary,
                                 Aged about 35 years, Occupation : Labourer,
                                 R/o Katurli, Tah. Amgaon, Dist. Gondia.

                                              VERSUS

 RESPONDENT                    : State of Maharashtra,
                                 Police Station Officer, Amgaon,
                                 Tah. Amgaon, Dist. Gondia.

 ------------------------------------------------------------------------------------------------------
           Mr. Mir Nagman Ali, Advocate for appellant.
           Mr. T. A. Mirza, A. P. P. for the respondent/State
 -----------------------------------------------------------------------------------------------------

                 CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.

DATE : JULY 12, 2021.

ORAL JUDGMENT [Per V. M. Deshpande, J.]

1. This appeal is directed against the judgment and order

of conviction passed by the learned Sessions Judge, Gondia. The

impugned judgment is delivered by the learned Sessions Judge on

21.03.2017 in Sessions Trial No. 50 of 2012.

The learned Sessions Judge found the appellant guilty

for the offence punishable under Section 302 of the Indian Penal

2 APEAL15.18.odt

Code. For such conviction, imprisonment for life is awarded together

with payment of fine of Rs.1,000/- with default clause.

2. The case of the prosecution, as it is unfolded during the

course of the trial, is in short compass which is detailed herein as

under :

A] On 07.05.2011, Vishwas Ramchandra Patil (PW12) was

attached to Amgaon Police Station, District Gondia as Police Sub

Inspector. One Gomaji Chandulal Yele (PW1) visited the police

station and reported about the suspicious death of his niece Ranjita.

B] Gomaji Yele (PW1) lodged his oral report (Exh.21). In

the report, he disclosed that his younger brother Potan has passed

away 7-8 years ago. Potan was having three daughters. Youngest

amongst them was Bhumabai @ Ranjita, whose marriage was

performed before about eight years with Rajkumar Bhurelal

Choudhari (appellant).

His further narration in the report is that on 07.05.2011,

in early hours at 4.30 am, his nephew Mukund Mulchand Yele (PW4)

came to his house and informed that Bhumabai resident of Katurli is

dead, is the information which he received from Rajkumar

3 APEAL15.18.odt

Choudhari (appellant) on his cell phone. The report further states

that on getting this information the first informant along with his

wife reached to village Katurli at about 7.30 a.m. to notice that

Bhumabai @ Ranjita was lying in dead condition and he noticed

some injury marks on her cheek. It is, therefore, stated in the report

that the appellant has committed murder of Ranjita. The printed

first information report is at Exh.22.

C] PSI Patil (PW12), after receipt of the aforesaid

information, immediately visited the spot. He found that the dead

body was kept in the first room of the house of the appellant and

there were marks of injuries on cheeks, lips and neck. He also

found that blood was oozing from her right ear. He also noticed that

there were injury marks on elbow joints. The relatives of the

deceased, the appellant and police staff were also present on the

spot.

PSI Patil immediately drawn inquest panchanama

(Exh.53). He sent the dead body for post mortem, by giving duty

certificate (Exh.43) to the Police Constable. He arrested the accused

under arrest panchanama (Exh.54). He also recorded the spot

panchanama in presence of the panchas (Exh.38). He found on the

4 APEAL15.18.odt

spot of the incident, which is the rear portion of the house, broken

bangles and one button of a shirt. Those were seized under seizure

panchanama (Exh.39). During the investigation, blood samples of

the accused were also drawn and those were seized under seizure

memo (Exh.29). After completion of other usual investigation, he

filed the charge-sheet.

3. The learned Jurisdictional Magistrate, in whose Court

the charge-sheet was filed, found that the offence is exclusively

triable by the Court of Sessions and therefore, he committed the case

to the Court of sessions.

4. In the Sessions Court, the case was registered as

Sessions Trial No. 50 of 2012. The learned Sessions Judge, Gondia

framed the Charge against the appellant for the offence punishable

under Section 302 of the Indian Penal Code (Exh.14). The appellant

abjured his guilt and claimed for his trial.

5. In order to bring home the guilt of the appellant, the

prosecution has examined in all 13 witnesses. They were cross-

5 APEAL15.18.odt

examined by the learned defence counsel. The appellant did not

examine any defence witness.

From the line of cross-examination of the prosecution

witnesses, the defence of the appellant was that due to epilepsy

attack, neck of the deceased was entangled in the rope of the cot

(ckt) resulting into her death. In his statement under Section 313 of

the Code of Criminal Procedure (hereinafter referred to as "the 313

statement" for short), it was the defence of the appellant that after

the death of his father-in-law, the first informant was demanding the

field of his father-in-law, which he did not allow his wife to do so.

Therefore, he had a grudge against him and lodged a false report

against him.

6. After appreciating the prosecution case and after

considering the defence in the light of various proved documents, the

learned Sessions Judge found that the prosecution was successful in

proving its case against the appellant and therefore, he passed the

judgment under challenge.

7. We have heard Shri Mir Nagman Ali, learned counsel for

6 APEAL15.18.odt

the appellant and Shri T. A. Mirza, learned Additional Public

Prosecutor for the State in extenso. We have also perused the record

and proceedings.

8. According to Mr. Ali, the learned counsel for the

appellant, in view of the fact that there is no eye-witness account, the

prosecution was under an obligation to prove that the chain of

circumstances was required to be fully established and according to

him, the prosecution has failed. He submits that the prosecution has

not proved the extra judicial confession made by the appellant,

beyond reasonable doubt. Therefore, in his submission, the chain is

not complete. He also relied upon the reported cases of this Court in

the case of Suresh Vithal Parkar .vs. State of Maharashtra, reported in

2015 All M.R. (Cri.) 1287 ; in Rekha Sitaram Chavan .vs. State of

Maharashtra, reported in 2014 All M.R. (Cri.) 3279 ; and in Parubai

W/o Gulab Watane .vs. State of Maharashtra, reported in 2018 All

M.R. (Cri.) 673. He, therefore, submitted that the appeal be allowed.

9. Per contra, Mr. Mirza, learned Additional Public

Prosecutor for the State vehemently countered the submissions put

7 APEAL15.18.odt

forth by the learned counsel for the appellant. He submitted that the

prosecution has proved its case by adducing circumstantial evidence

and the facts proved by the prosecution are consistent only with the

hypothesis of the guilt of the appellant. He submitted that the death

of Ranjita was in her matrimonial house in the wee hours of the date

of incident. He submitted that the deceased was in the custody of

the appellant he being the husband. He submitted that the appellant

has not offered any plausible explanations which were in exclusive

knowledge of him about the facts resulting into the demise of his

wife. He submitted that in view of the provisions of Section 106 of

the Evidence Act, the onus to explain the circumstances under which

the deceased met with death was on the appellant. He relied upon

the reported judgments of this Court in the case of Mahendra S/o

Parashram Chakate .vs. State of Maharashtra, reported in 2017 All

M.R. (Cri) 164 and in the case of Narayan S/o Pisaram

Chauragade .vs. State of Maharashtra, reported in 2005 All M.R.

(Cri) 2453. He submits that the learned Sessions Judge has rightly

appreciated the prosecution case and awarded the conviction and

punishment to the appellant. He, therefore, prays for dismissal of

the appeal.

8 APEAL15.18.odt

CRITICAL ANALYSIS OF THE PROSECUTION CASE

10. True it is that in this prosecution case there are no eye-

witnesses. The prosecution case is completely based on the

circumstantial evidence. How the circumstantial evidence should be

appreciated, the Hon'ble Apex Court has given guidelines for

scanning and analysing the evidence in Hanumant and others .vs.

State of Madhya Pradesh, reported in AIR 1952 SC 343 and in

Sharad Birdhichand Sarda .vs. State of Maharashtra, reported in

1984 SCC (Cri) 487.

11. Keeping in mind the principles settled by the Hon'ble

Supreme Court in the aforesaid two leading cases, we will have to

consider the prosecution case.

12. The prosecution has relied upon the following

circumstances, which are also cataloged by the learned Sessions

Judge in his judgment, which are as under :

a] That the accused and the deceased were residing as husband and wife in the house at Katurli, Tah. Amgaon.

b] That there used to be quarrels between accused and the deceased and before the incident in question

9 APEAL15.18.odt

due to intervention of Tanta Mukti Samiti the same quarrel was settled.

c] That Bhumabai @ Ranjita has died homicidal death in the said house with injuries around her neck and internal head injury.

d] That the deceased was in the custody of the accused in the said house at the time of incident. e] That the accused approached his neighbour Diwanji Bisen at about 4.30 a.m. on 07.05.2011 and informed that the health of Ranjita is not well and that the doctor should be called.

f] On visit of Diwanji Bisen to the house of accused at about 6.30 a.m., he found marks of injuries on the neck of the deceased.

g] Broken pieces of bangles and one white colour button of the shirt was lying in the kitchen room near the rear door of the house of the accused. h] That the accused in presence of the relatives of the deceased confessed having committed murder of Bhumabai @ Ranjita.

i] That the accused took false plea that Bhumabai @ Ranjita dies of epilepsy attack, getting her neck entangled in the rope of the cot (khat).

13. Before analysing the circumstances, we would like to

consider the submissions of the learned counsel for the appellant that

in this case since the prosecution was not able to point out the exact

time of death, it would be unsafe to hold the appellant guilty.

10 APEAL15.18.odt

14. True it is that the exact time of death is not available in

the record. The post mortem report is at Exh.68. The autopsy was

performed by Dr. Rushikesh Shambharkar (PW13). Dr. Shambharkar

(PW13) was attached to the Rural Hospital, Amgaonon 07.07.2011

as a Medical Officer. His evidence would show that he received

requisition (Exh.67) along with the dead body of Ranjita for

conducting post mortem. His evidence would show that he started

post mortem at 4.00 pm and completed the same at 5.30 p.m.

The post mortem report (Exh. 68) also shows that after

receipt of the dead body at 4.00 pm, Dr. Shambharkar started

conducting post mortem at 4.15 pm and it was completed at 5.30

pm.

Neither during the course of the trial nor before this

Court, the authenticity of post mortem report (Exh.68) is challenged.

Exh.68 is duly proved by PW13 Dr. Shambharkar, the Autopsy

Surgeon. Column no.11 of the post mortem report notes that - "rigor

mortis present", whereas column no. 12 of the post mortem report

recites that - "no signs of decomposition".

15. The post mortem report (Exh.68) is not having any

11 APEAL15.18.odt

column about the time of death. In that context, no fault could be

attributed to the learned Autopsy Surgeon in not mentioning the

time of death.

16. It was the duty of the learned Additional Public

Prosecutor, who was in charge of the brief while examining Dr.

Shambharkar, to solicit answer about the time of death by putting

required questions. Perusal of the evidence of Dr. Shambharkar

(PW13) does not show that the learned Additional Public Prosecutor

had put such questions. The justice cannot be the victim for any

lapse on the part of the learned Prosecutor. Especially after noticing

column nos. 11 and 12 of the post mortem report (Exh.68), this

Court, while discharging its duty as an Appellate Court, can attempt

to determine the time of death. The authority on Medical

Jurisprudence - Modi's Text Book on Medical Jurisprudence and

Toxicology, states the time of onset as under :-

"Time of onset - This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two or three hours to develop. In India, it usually commences in one to two hours after death."

12 APEAL15.18.odt

17. The Hon'ble Apex court in Virendra alias Buddhu and

another .vs. State of Uttar Pradesh, reported in (2008) 16 SCC 582

has ruled in paragraph 25 of the judgment as under :

"25. It is mentioned at p.125 of Modi's Medical Jurisprudence and Toxicology, Edn. 1977 that in general rigor mortis sets in 1 to 2 hours after death, is well developed from head to foot in about 12 hours, is maintained for about 12 hours and passes off in about 12 hours. In the instant case rigor mortis was present in lower extremities at the time autopsy was conducted on the dead body after 30 hours. As according to ocular testimony the deceased was murdered on 05.10.1979 at about 10.00 a.m. and the doctor conducted autopsy on the dead body on the next day at about 4.30 p.m. after 30 hours of death but rigor morties was found present in lower extremities . Had he died on 04.10.1979 at about 10.00 p.m. or so rigor mortis would have passed off from the dead body completely at the time of autopsy. Thus the ocular testimony that he was murdered on 5.10.1979 at about 10.00 a.m. stands corroborated from the medical evidence pin pointing that rigor mortis was present in lower extremities at the time when the autopsy was conducted on the dead body after 30 hours."

18. The Hon'ble Apex Court in Daryao singh .vs. State of

Madhya Pradesh, reported in (1991) 2 SCC 588, in paragraph 9 of

the judgment has explained the process of decomposition, which is

13 APEAL15.18.odt

reproduced herein as under :

"9. It is common knowledge that after death the body starts to cool down to the surrounding temperature. The cooling of the body is the earliest phenomenon which is followed by post-mortem lividity resulting from discontinuance of blood circulation and collection of blood in certain parts under gravitational action, depending on the position of the dead body. the stoppage of blood circulation and the inaction of the natural defensive mechanism result in the bacteria present in the body as well as those that enter from outside getting scattered in every part of the body setting in the process of putrefaction, unless special care is taken to prevent the same. Decomposition in thus essentially the process of putrefaction which is dependent on environmental and climatic conditions. In the present case death had occurred on September 25 and the dead body lay in the police station with the wounds exposed till it was brought to the hospital at 5.20 p.m. on the next day. The body remained in the same condition in the hospital till 7.00 a.m. on the next day when the post- mortem examination was undertaken. The body thus remained fully exposed to the heat and humidity of the month of September for over thirty hours and hence it is not surprising that the rigor mortis had passed off. Ordinarily after rigor mortis has passed off, the process of putrefaction sets in but it may set in even earlier during summer depending on the heat and humidity. Body changing colour and emitting foul smell, are the two special characteristics of the decomposition process. The first external evidence of putrefaction is the formation of greenish discoloration of the abdominal skin over the iliac fossae which occurs within six to twelve hours in summer and spreads all over the body

14 APEAL15.18.odt

within twelve to eighteen hours of death. As time passes they deepen in colour and become purple. With the spread of bacteria, there is gradual development of gases in the intestines within twelve to eighteen hours and liquefaction also takes place and soon spreads to other parts of the body. Putrefaction thus results in general disintegration of the tissues due to residual enzymatic activity in the cells causing widespread formation of gases emitting foul smell and if the body is exposed, as in the present case, flies lay eggs on exposed wounds forming maggots. The body gets bloated and liquified, the skin looses coherence, the superficial layers peel off easily and blisters are formed. It is, therefore, not suprising that owning to the formation of gases the penis and the scrotum were swollen and there was the presence of maggots."

19. The evidence of PW2 Diwanji Bisen shows that the

appellant reached to his house on 07.05.2011 at 4.30 a.m. He gave a

call to him and informed that heath of Ranjita is deteriorated and

therefore, he should call Doctor. His evidence further shows that he

called Dr. Kore, though it appears that he is not qualified one. Be

that as it may. Doctor came and thereafter PW2 Diwanji and Doctor

went to the house of the appellant and they found that Ranjita is

dead.

20. In view of existence of rigor mortis and no signs of

15 APEAL15.18.odt

decomposition in the light of the guidelines reproduced in the above

paragraphs and in the light of the other evidence, there will be no

difficulty for this Court to determine that Ranjita died in between

4.00 to 4.30 a.m. on 07.05.2011.

21. Once the Court determines the time of death, the Court

proceeds to examine as to whether the circumstances which are

cataloged by the prosecution are duly proved.

22. The first circumstance i.e. circumstance (a) is that the

appellant and deceased were residing as husband and wife at village

Katurli of Tah. Amgaon. The evidence of PW1 Gomaji Yele, uncle of

deceased, PW10 Rayabai Yele, mother of deceased, PW4 Mukund

Yele, brother of deceased and PW7 Priti Rahangadale, an

independent witness, shows that the appellant and the deceased

were the husband and wife. As per the evidence of Gomaji (PW1)

and the other prosecution witnesses, the marriage between the

appellant and the deceased was performed about 10 - 15 years back.

This particular aspect about his marriage with the deceased is

specifically admitted by the appellant when he was examined by the

16 APEAL15.18.odt

learned Judge of the trial Court under Section 313 of the Cr.P.C. The

prosecution has examined one Latabai Bisen (PW5). In her evidence,

she states that she is cousin sister of the deceased. Her evidence

would show that after the marriage, the appellant and the deceased

were residing at her village Batana. They resided there for about 4 -

5 years and thereafter they started residing at village Katurli. In

question No.22 in the 313 statement, this aspect was put to the

appellant and he admitted about his residence. Even before this

Court the learned counsel for the appellant Mr. Ali did state that

initially though the couple was residing at village Batana, thereafter

they started residing at village Katurli. In view of the unchallenged

evidence of the prosecution witnesses about the factum of marriage

between the deceased and the appellant and their stay at village

Katurli, rather admitted by the appellant in his examination under

Section 313 of Cr.P.C., there is no doubt that the prosecution has

proved circumstance (a).

23. Another circumstance i.e. circumstance (b), which is

pressed into service by the prosecution, is that there used to be

quarrels between the appellant and the deceased and before the

17 APEAL15.18.odt

incident in question due to intervention of Tanta Mukti Samiti, the

said quarrel was settled. Insofar as this circumstance is concerned,

the prosecution has examined PW4 Mukund Yele, PW5 Latabai Bisen

and PW10 Rayabai Yele.

PW4 Mukund is the brother, PW5 Latabai is the cousin

sister and PW10 Rayabai is the mother of the deceased. As per the

evidence of PW4 Mukund, after the marriage, the appellant gave

good treatment to the deceased for about two years. He deposed

that before the incident, there was a quarrel between the appellant

and the deceased and the dispute was settled before the Tanta Mukti

Samiti. He also deposed that 4 - 8 days before the incident, the

deceased had been to his house and she narrated that the accused

used to quarrel with her. Similarly, PW5 Latabai also deposited that

the matter was settled before the Tanta Mukti Samiti and the

appellant gave assurance before the said Samiti that he will give

good treatment to Ranjita.

24. After considering the entire evidence of PW4 Mukund

and PW5 Latabai, there is no doubt in our mind to discard their

evidence in respect of their version regarding settlement of the

18 APEAL15.18.odt

dispute before Tanta Mukti Samiti as they themselves have admitted

in their cross-examination that they were not present at the time of

settlement of the dispute before the said Samiti and as per the

evidence of PW4 Mukund, the said fact was brought to his notice by

his brother. In view of this, their evidence about the settlement of

the dispute before Tanta Mukti Samiti is an hearsay evidence and

therefore, there is no difficulty for us to discard their version to that

extent. Evidence of PW4 Mukund about narration of quarrel by the

deceased to him about 4 - 8 days before the incident is an improved

version inasmuch as the said fact was not deposed by this witness

during the course of the investigation.

25. PW10 Rayabai is the mother of the deceased. Her

evidence would show that the appellant used to beat her daughter

and her daughter used to inform the said fact to her. She also

deposed that there was a meeting of Tanta Mukti Samiti to settle the

dispute and before the said Samiti, there was settlement between the

appellant and the deceased and thereafter the deceased started

cohabiting with the appellant. The tenor of cross-examination of this

witness shows that the defence has not challenged the meeting of

19 APEAL15.18.odt

Tanta Mukti Samiti and the settlement that arrived at.

Further, PW5 Rayabai's evidence would show that the

deceased came to her house for Sankrant (14th January) and she

resided with her for 2 - 4 days. That time she narrated about the

atrocities on her. Her evidence shows that after 2 - 4 days Ranjita

left for her matrimonial house. Though, in her cross-examination, a

suggestion was given to Rayabai (PW10) that the deceased did not

visit Rayabai's house on the eve of Sankrant, she denied the same.

However, when that incriminating circumstance was put to the

appellant as question no. 38 in the 313 statement, the appellant

admitted the deceased's stay with Rayabai at her house, though he

denied about the ill-treatment. In view of the quality of the evidence

of Rayabai in respect of the Tanta Mukti Samiti meeting, which

remained unshaken during her cross-examination, in our view the

said aspect was rightly considered by the learned Judge of the trial

Court in favour of the prosecution.

Insofar as the visit of the deceased to her paternal house

on the eve of Sankrant and her stay there for 2 - 4 days as deposed

by Rayabai (PW10) and in view of the admission by the appellant

himself that such fact did happen, there will not be any difficulty for

20 APEAL15.18.odt

this Court to accept the evidence of Rayabai to that extent.

26. PW10 Rayabai is the mother of the deceased. The

deceased has already lost her father. PW1 Gomaji is the uncle of

deceased. PW4 Mukund and PW5 Latabai are the cousins of the

deceased. Therefore, it is most natural on the part of the deceased to

disclose the quarrels picked up by her husband and beating to her by

the appellant, to Rayabai. Similarly, the evidence of Rayabai about

the beating as disclosed to her by the deceased when she came to her

house on the eve of Sankrant has gone unchallenged. The

cumulative effect of the aforesaid, in our view, the learned Judge has

rightly recorded a finding that the prosecution has proved

circumstance (b).

27. Insofar as circumstance (c) and circumstance (i) are

concerned, they relate to the prosecution case that Ranjita died

homicidal death in the matrimonial house having injuries around her

neck and internal head injury. To prove homicidal death, the

prosecution has examined PW13 Dr. Rushikesh Shambharkar.

21 APEAL15.18.odt

28. It would be useful here to note the evidence of other

prosecution witnesses, who noted injuries around the neck of the

deceased even before conducting the post mortem. PW2 Diwanji

Bisen is the neighbour of the appellant. His evidence would show

that he know both, the appellant and the deceased. This fact is

admitted by the appellant in his 313 statement. Evidence of PW2

Diwanji would show that the incident took place in the month of

May-2011 on the day of Akshay Tritiya. He deposed that early in the

morning at about 4.30 a.m., the appellant came to his house. He

gave a call to him. He woke up. The appellant told him that health

of Ranjita is deteriorated. The appellant requested him to call the

Doctor. Therefore, this witness gave a call to Dr. Viju Kore. Along

with Dr. Kore, this witness went to the house of the appellant. That

time he noticed the dead body of Ranjita. What is important to note

is that his evidence would show that this prosecution witness noticed

injury marks on the neck of the deceased. His evidence would show

that thereafter the relatives of the deceased came. All the relatives of

the deceased, who are examined by the prosecution, also state about

they noticing injury marks around the neck of the deceased. The

inquest panchanama (Exh.53) recites as under -

22 APEAL15.18.odt

"rksaM v/kZoV m?kMs vkgs- Mkos xkykl o vksBkl ,dq.k 4 fBdk.kh t[kekaps oz.k vkgs- xG;kr eaxGlq= vlqu xG;kl nkcY;kps oz.k vkgs-"

The inquest panchanama was done prior to the post mortem.

29. PW13 Dr. Rushikesh Shambharkar in his evidence states

that while conducting post mortem he found following external

injuries :-

i] Nail marks on throat i.e. bruises to each on each side of thyroid cartilage.

ii] I have noticed that sub-cutaneous tissue around the bruises were congested.

These injuries are mentioned in column 17 of the post

mortem report (Exh.68) .

Dr. Shambharkar also found that there was fracture of

hyoid bone, which he has mentioned in column 18 of the post

mortem report and according to Dr. Shambharkar, the injuries were

ante mortem. According to the Autopsy Surgeon, the cause of death

was due to asphyxia by throttling and due to hemorrhagic shock.

Even as per the evidence of PW10 Rayabai, she also

stated that she noticed the injury marks on neck and face when she

reached to the house of Ranjita.

                                      23                             APEAL15.18.odt


 30.              During       the    course   of   cross-examination          of     Dr.

Shambharkar, a suggestion was given to him that the injuries as

noticed by him are possible because of the epilepsy attack and if

neck of a person is entangled in the rope of cot ( Khat). This

suggestion was stoutly denied by the learned Autopsy Surgeon.

Apart from mere suggestion, nothing was brought to the notice of the

autopsy surgeon by the learned cross-examiner to prove the said

aspect.

Be that as it may. If it was the defence of the appellant

that such injuries are possible due to epilepsy attack, surely to prove

said defence something was required to be brought on record to

show that the deceased was suffering from epilepsy. The learned

cross-examiner has given mere suggestion to that effect to the

relatives of the deceased, which were denied by them. No document

is coming on record either during the cross-examination of the

prosecution witnesses or when the appellant was examined under

section 313 of Cr. P.C. to show that the deceased was having history

of epilepsy. Further, as per the suggestion given to Dr. Shambharkar,

the neck of deceased was entangled in the rope of the cot ( khat),

however, as observed above, the said suggestion was denied and in

24 APEAL15.18.odt

addition to that, document Exh.38, which is a spot panchanama,

executed by the Investigating Officer in the presence of the appellant

and the copy of the same was given to the appellant simultaneously,

is conspicuously silent about the presence of any cot ( Khat) on the

spot. In view of the aforesaid evaluation of the prosecution evidence,

we have no difficulty to hold that the prosecution has proved not

only the circumstance (c), but also circumstance (i).

31. Circumstance (d) as cataloged is that the deceased was

in the custody of the appellant in the house at the time of the

incident. This particular circumstance is duly proved by an

independent witness PW2 Diwanji Bisen, a neighbour and PW3

Ramesh Jaitwar. Though, PW3 Ramesh is declared hostile, however

on the other aspect. In view of the aforesaid, we have no difficulty

to hold that the prosecution has proved circumstance (d).

32. Insofar as circumstances (e) and (f) are concerned, in

the preceding paragraph, it has been observed by this Court that the

appellant's visit to the house of PW2 Diwanji Bisen is specifically

admitted by the appellant himself when he was examined under

25 APEAL15.18.odt

Section 313 of Cr.P.C. Apart from that, independently PW2 Diwanji

Bisen has proved the said aspect. Though very faintly, but it was

argued before this Court, as argued before the trial Court, that PW2

Diwanji was on enmical terms with the appellant because the

appellant has constructed his house on 10 decimal land belonging to

said Diwanji, however, the fact remains that the evidence of PW2

Diwanji that the appellant visited his house at 4.30 am, he gave a

call to Diwanji and disclosed that health of his wife is deteriorating

and therefore he should call the Doctor, is not only remained

unchallenged, but it is an admitted fact by the appellant himself

when he was examined under Section 313. If that be so, then the

submission made by the learned counsel for the appellant about

enmity between them, looses its force. In that view of the matter, we

have no difficulty to hold that the prosecution has proved

circumstances (e) and (f).

33. The another circumstance which the prosecution has

pressed into service is circumstance (g) about the broken pieces of

bangles and one white colour button of a shirt lying in the kitchen

room near the rear door of the house of the appellant. While

26 APEAL15.18.odt

preparing the spot panchanama in presence of panchas (Exh.38), the

Investigating Officer found about presence of broken pieces of

bangles and a white colour button of the shirt and accordingly, in the

said contemporaneous document, it is mentioned. Though, panch

witness Raju Lanjewar (PW8) has turned hostile, the spot panchama

is duly proved by the Investigating Officer. The broken pieces of

bangles and the button of the shirt were seized under seizure

panchanama (Exh.39). The Chemical Analyser's reports are available

on record at Exhs.62 and 63. The report at Exh.63 recites as under :

Description of articles contained in Parcel/s

Exhibit (1) Pieces of glass bangles wrapped in paper lebelled Bn-1701/11/Exhibit[1]

Exhibit (6) Pieces of glass bangles wrapped in paper lebelled Bn-1701/11/Exhibit[6]

Result of Analysis

Red coloured bangle pieces and orange yellow coloured bangle pieces in exhibit [1] tally respectively with red coloured bangle pieces and orange yellow coloured bangle pieces in exhibit [6], in respects of hue, physical properties and spectro- chemical composition."

Similarly, the report at Exh.62 recites as under -

Description of articles contained in Parcel/s

Ex.no.[2] - Plastic button wrapped in paper lebelled -

                                27                               APEAL15.18.odt


                  Bn-1701/11 --[2]

Ex.no.[3] - Shirt wrapped in paper lebelled - Bn- 1701/11 -- [3]

Result of Analysis

Button in exhibit no.(2) tallies with the buttons stiched to the shirt in exhibit no.3 in respect of hue and physico-chemical characteristics.

34. Noticing of broken pieces of bangles and button of the

shirt coupled with the Chemical Analyser's reports [Exhs.62 and 63],

in our view, show that at the time of the incident, there was a

violence between the appellant and the deceased and presence of

broken pieces of the bangles and button of the shirt, which shirt was

of the appellant, indicate struggle on the part of the deceased. In

view of the aforesaid, we have no difficulty to hold that the

prosecution has proved circumstance (g).

35. The next circumstance the prosecution has pressed into

service is circumstance (h) about the accused confessing his guilt in

presence of the relatives of the deceased that he committed murder

of Bhumabai @ Ranjita. Though the prosecution has relied upon the

extra judicial confession by the appellant to the relatives of the

deceased, who were present and which is accepted by the learned

28 APEAL15.18.odt

Judge of the Court below, on reappreciation of the evidence of the

relatives of the deceased, especially in their cross-examination and in

view of the examination-in-chief of PW5 Latabai alone, we have no

difficulty to hold and record a finding that the extra-judicial

confession made by the appellant was not voluntary one and it was

obtained by the prosecution witnesses under threat.

Another reason for not accepting the same is, none of

the prosecution witness disclose the fact of confession immediately.

From record, it is clear that police reached to the spot on very same

day in morning itself. PW2 Diwanji Bisen claims about confession

made to him. Though, police were present, from his evidence it is

clear that his statement was recorded by police after two days. Not

only that, he did not claim that he was unable to give his statement

earlier because of any reason. In that view of the matter, to that

extent, we are not accepting the finding given by the learned

Sessions Judge that there was extra judicial confession. Therefore,

the extra judicial confession has to be discarded.

36. Even though the extra judicial confession is discarded,

in our view, the remaining circumstances consistently prove that the

29 APEAL15.18.odt

hypothesis of the guilt of the appellant and the chain of the

circumstances is so complete that except the finding that the

appellant has committed murder of his wife and he is responsible for

her homicidal death, no other finding can be recorded.

37. In view of the fact that the prosecution has proved the

events as cataloged by the prosecution, the aspects that the appellant

was residing at the relevant time with the deceased in his house,

there was a violence on the body of the deceased and the presence of

the appellant, are firmly established. In that view of the matter, the

reported judgments pressed in to service by the learned Additional

Public Prosecutor covers the fate of the appellant.

38. Death of the deceased was caused inside the house. The

deceased was in the custody of the appellant. In that view of the

matter, the law laid down by the Hon'ble Apex Court in Trimukh

Maroti Kirkan .vs. State of Maharashtra, reported in (2006) 10 SCC

681 is applicable in this prosecution case with its full force. In the

said judgment, the Hon'ble Apex Court has ruled as under :

"If an offence takes place inside the privacy of a house and in such circumstances where the

30 APEAL15.18.odt

assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

39. Reliance put forth by the learned counsel for the

appellant on Rekha Chavan's case (supra), in our view, is not

applicable in the present case in view of the fact that in the reported

case in view of the evidence of PW12 Kusum, the Division Bench of

this Court found that the proseution could not prove presence of

31 APEAL15.18.odt

Rekha at the time of murder of her husband in the house. Similarly,

on facts, we are not able to pursue ourselves to accept that the

dictum of Suresh Parkar's case (supra) can be made applicable in the

case at hand because in Suresh Parkar's case, the prosecutoin could

not prove presence of Suresh near the deceased.

40. On reappreciation of the entire prosecution case, we

have no difficulty to hold that the prosecution has proved the

homidical death of deceased Bhumabai @ Ranjita and the authorship

of homicidal death firmly rests on the shoulder of the appellant.

Consequently, we pass the following order :-

ORDER

The criminal appeal is dismissed.

                               JUDGE                     JUDGE
 Diwale