Bombay High Court
Yakub Chandrakant Pol vs The State Of Maharashtra on 22 June, 2021
Bench: S.S. Jadhav, N. R. Borkar
j-cri-appeal-887-2010.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO. 887 OF 2010
Yakub Chandrakant Pol ... Appellant
V/s.
The State of Maharashtra ... Respondent
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Mr. Aashay B.Topiwala for the Appellant.
Mr. N.B. Patil, APP for the Respondent -State.
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CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : 22.02.2021.
PRONOUNCED ON : 22.06.2021.
JUDGMENT (PER N.R. BORKAR, J.)
1] This appeal takes an exception to the judgment and
order dated 17.8.2010 passed by the learned Additional
Sessions Judge, Kalyan in Sessions Case No. 300 of 2008. By
the impugned judgment and order, the appellant, who was
the accused No.1 before the trial court, has been convicted
for the ofence punishable under section 302 of the Indian
Penal Code (IPC) and sentenced to sufer Rigorous
Imprisonment for Life and to pay fne of Rs.1000/-, in default,
to sufer Rigorous Imprisonment for two months.
2] The deceased Rahel was the wife of the present
appellant/accused No.1. It is the case of the prosecution that
the deceased was initially married to one Ashok Kale.
However, due to diferences, they took divorce after one year
of their marriage. Accused No.1 then married to the
deceased.
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3] After marriage, the deceased went to cohabit with
accused No.1 at Mahalaxmi Nagar, Ambernath. The family of
the accused No.1 was consisting of his mother, brother and
wife of his brother, who were accused nos.2 to 4 before the
trial Court. It is alleged that accused were not treating the
deceased well and they were insisting her to stay separately
with accused No.1. The deceased was, therefore, constrained
to lodge the report against them at Shivaji Nagar Police
Station. The deceased thereafter left the house of accused
and came to reside with her father PW-1 Bhausaheb Randive.
On the next day accused No.1 came to the house of PW-1 and
told him that he would stay with the deceased separately
and requested PW-1 to search house on rent for them.
Accordingly, PW-1 had searched the house on rent for them at
some distance from his house. The deceased and accused
No.1 then came to reside in the said rented premises and
they were residing there till the date of incident.
4] It is alleged that on the date of incident which took place
on 7.9.2008 at about 9.00 p.m., PW-1 saw accused Nos.2 to 4
coming to the house of deceased. At about 11.30 p.m.,
accused No.1 came to the house of PW-1 and asked him to
accompany him to his house. Accordingly, PW-1 accompanied
the accused No.1 to his house. On reaching there, he saw that
the deceased was lying on the cot and she was
movementless. Therefore, he took her to the Central Hospital.
However, she was declared brought dead. The postmortem of
the deceased was conducted and it was found that the
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deceased died due to asphyxia. On the report of PW-1, crime
was registered against the accused Nos.1 to 4 vide Crime No.
I-241 of 2008 for ofence punishable under section 302 read
with 34 of the IPC. However, on completion of investigation,
the charge-sheet was fled against the accused Nos.1 to 4 for
the ofence punishable under section 302 read with 109 of the
IPC.
5] The accused Nos.1 to 4 were charged and tried for the
ofences punishable under section 302 read with 109 of the
IPC. The trial court by the impugned judgement and order
convicted the present appellant/accused No.1 for the ofence
punishable under section 302 of the IPC and acquitted the
accused Nos.2 to 4 of all the charges levelled against them.
The State has not fled appeal against the acquittal of
accused Nos.2 to 4.
6] We have heard learned Counsel for the appellant/
accused No.1 and learned APP for the respondent -State.
7] The prosecution in order to prove the death of
deceased was homicidal, has examined PW-8 Dr. Namrata
Kulkarni. PW-8 has stated that on 8.9.2008 she was on duty as
Casualty Medical Ofcer. On that day, she received the dead
body of Rahel Yakub Pol from Ambernath Police Station for
postmortem. On external examination, she found ligature
mark of bluish-black colour and it's size was 10 x 2 cms. and
it was on anterior aspect of neck. On internal examination,
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she found muscle beneath ligature mark was congested and
the hyoid bone was fractured. Thus, according to her the
probable cause of death of the deceased was due to
asphyxia.
8] PW-8 was cross-examined and in her cross-examination
it was suggested to her that the ligature mark found on the
person of deceased is possible in case of hanging. However,
she has denied the said suggestion. There is no material on
record to show that the death of deceased was either suicidal
or accidental. In absence of such material, the trial court was
justifed in holding that the death of deceased was homicidal.
9] The question is, however, whether the homicidal death
of the deceased was caused by the accused No.1 ?
10] PW-1 has stated in his evidence that as the deceased
was being harassed by the accused, she had lodged the
report against them with Shivaji Nagar Police Station. After
lodging the complaint, the deceased and accused No.1 came
to him and told him that that they want to reside separately
from accused Nos.2 to 4. Therefore, he had arranged separate
residence for them on rent. The deceased and the accused
No.1 then came to reside in the said rented premises two
months prior to the incident.
11] PW-1 has been cross-examined on behalf of the
accused. In the cross-examination, he has admitted that he
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came to know about the incident from accused No.1.
However, the evidence of PW-1 that on the day of incident the
accused No.1 and the deceased were residing together has
not been challenged.
12] According to PW-7 Vaishali More, she was residing in
the neighbourhood of the deceased. She has stated in her
evidence that the nature of deceased was very friendly. The
deceased used to go for work and accused No.1 was not
doing any work. Accused No.1 used to abuse and quarrel with
the deceased. As this witness has denied that on the date of
incident, she heard the sound of quarrel from the house of
accused No.1, she was declared hostile. However, her
evidence that accused No.1 used to abuse and quarrel with
the deceased remained unchallenged as the learned advocate
for the accused declined to cross-examine her.
13] It is apparent from the evidence of PW-7 that the
accused No.1 was not treating the deceased well.
14] The accused No.1 and the deceased were residing
together on the date of incident. Admittedly, the incident took
place inside the dwelling house. PW-6 Vilas Deshmukh, the
panch on spot panchanama, has stated in his evidence that
broken bangles were lying at the place of incident. The
evidence of PW-6 that broken bangles were lying at the place
of incidence has not been challenged in the cross-
examination. The said fact would indicate that the deceased
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struggled to save herself. In the facts and circumstances, it
was necessary for the accused No.1 to ofer explanation in his
statement under section 313 of Cr.P.C. for the injuries to his
wife in terms of section 106 of the Evidence Act. However, the
defence of the accused No.1 is of total denial.
15] The Supreme Court in the case of State of Rajasthan
Vs. Thakur Singh - 2014 (12) SCC 211 while interpreting
section 106 of the Evidence Act, 1872, has held thus:
22. The law, therefore, is quite well settled that the
burden of proving the guilt of an accused is on the
prosecution, but there may be certain facts pertaining to
a crime that can be known only to the accused, or are
virtually impossible for the prosecution to prove. These
facts need to be explained by the accused and if he
does not do so, then it is a strong circumstance pointing
to his guilt based on those facts.
23. Applying this principle to the facts of the case,
since Dhapu Kunwar died an unnatural death in the
room occupied by her and Thakur Singh, the cause of
the unnatural death was known to Thakur Singh. There
is no evidence that anybody else had entered their room
or could have entered their room. Thakur Singh did not
set up any case that he was not in their room or not in
the vicinity of their room while the incident occurred nor
did he set up any case that some other person entered
the room and caused the unnatural death of his wife.
The facts relevant to the cause of Dhapu Kunwars death
being known only to Thakur Singh, yet he chose not to
disclose them or to explain them. The principle laid
down in Section 106 of the Evidence Act is clearly
applicable to the facts of the case and there is,
therefore, a very strong presumption that Dhapu Kunwar
was murdered by Thakur Singh."
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16] In the present case also the accused did not set up any
case that he was not there in the house while the incident
occurred or some other person entered in their house and
caused the death of his wife. The trial Court was, therefore,
justifed in convicting the accused No.1 for the ofence
punishable under Section 302 of the Indian Penal Code. No
interference is called for in the impugned judgment and order.
In the result, the following order is passed.
ORDER
i] Criminal Appeal is dismissed.
ii] Criminal Applications, if any, do not survive and
the same are disposed of accordingly.
(N.R. BORKAR, J.) (SMT. SADHANA S. JADHAV, J.)
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