Mahesh Shamrao Pawar vs The State Of Maharashtra
2021 Latest Caselaw 5799 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.400 OF 2016
                                   WITH
                    CRIMINAL APPLICATION NO.1207 OF 2020
                                   WITH
                    CRIMINAL APPLICATION NO.859 OF 2019
 Mahesh Shamrao Pawar
 Age : 30, Occ.: Medical Practitioner
 R/at : Tarale, Tal : Patan, Dist.: Satara
 Kalamba Central Prison.                                       ... Appellant
 V/s.
 State of Maharashtra
 (Through Umbraj Police Station)                               ... Respondent
                                        -------------------
 Mr. Niteen Pradhan a/w Ms. Ameeta Kuttikrishnan, Mr. Ramsingh
 Rajput, Ms. Tanvi Tapkire, Mr. Amey Mahadik and Mr. Anthony Nadar
 i/b. Ms. Shubhada Khot, Advocate for the Appellant.
 Ms. M.H. Mhatre, APP for the Respondent - State.
                                       ---------------------
                                     CORAM : SMT. SADHANA S. JADHAV &
                                             N.R. BORKAR, JJ.
 JUDGMENT RESERVED ON                           : 2nd FEBRUARY 2021.
 JUDGMENT PRONOUNCED ON                         : 31st MARCH 2021.


 JUDGMENT (Per: Sadhana S. Jadhav, J.)

1. The accused - appellant herein takes an exception to the

judgment and order dated 16th May 2016 passed by the Additional

Sessions Judge, Karad in Sessions Case No.31 of 2008 thereby

convicting the appellant for the offences punishable under section 302

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of the Indian Penal Code and sentencing him to suffer imprisonment

for life and fine of Rs.3,000/- in default to suffer SI for 3 months.

2. Such of the facts necessary for the decision of this appeal,

in nutshell, are as follows :-

(i) That, on 20th November 2007 Arjun Sawant - father of the

deceased Rajashri lodged a report at Tarale Police Station alleging

therein that his daughter was married to the accused Mahesh on 3 rd

June 2005. Both the husband and wife were practising Doctors with a

Degree in Bachelor of Homeopathy in Medical Sciences. The couple

was blessed with a daughter named Saee. According to the

complainant, on 20th November 2007 at about 5.00 am, the neighbour

of the accused had called upon the complainant and informed him that

when Rajashri was proceeding to answer nature's call she had fallen

down, sustained injuries and was admitted in Siddhivinayak Hospital

at Karad. The complainant - P.W.5 and his relatives reached

Siddhivinayak Hospital at about 7.00 am. That, Rajashri was on life

support. Doctor informed them that Rajashri had expired. The autopsy

was performed on the dead body of Rajashri and the cause of death

was shown as "throttling". P.W.5 has further alleged that on 19 th

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November 2007 the couple had been to Karad for performing Pooja on

the plot where they intended to construct a Hospital. The couple had

then returned to Tarale whereas the parents of the accused had stayed

back at Karad. That the couple had a quarrel over some reason

unknown to the complainant and thereafter, the accused had throttled

his wife Rajashri. On the basis of the said complaint, Crime No.144 of

2007 was registered at Umbraj Police Station for the offences

punishable under section 302 and 201 of the Indian Penal and Code.

The prosecution examined as many as 12 witnesses to bring home the

guilt of the accused. The prosecution has placed implicit reliance upon

the evidence of P.W.5 i.e. the complainant. P.W.6 Dr. Amreesh Sawant

who happens to be the brother of the deceased Rajashri, P.W.9 - Dr.

Dilip Pandurang Patil who was working as Doctor in Siddhivinayak

Hospital and had issued the medical certificates which are at Exh.103

and had identified the signature of Dr. Avinash Patil at Exh.92/1 and

92/9, P.W.10 - Dr. Jeevan Rahoti was the Medical Officer at Civil

Hospital, Satara and has proved the medical certificate of accused at

Exh.106. P.W.11 - Dr.Dhondiram Jadhav who had performed autopsy

on the dead body of Rajashri and P.W.12 is the Prakash Kumar Patil,

the Investigating Officer in Crime No.144/2007 registered at Umbraj

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Police Station.

(ii) However, it is to be noted that P.W.1 is the panch for the

scene of offence panchanama. He has proved the contents of the scene

of offence panchanama :-

(iii) The witnesses in the present case are of three classes :-

First class is of the relatives of the victim :-

(a) Father of the victim Arjun Sawant - P.W.5;

(b) Brother of the victim - Dr. Amarsinh Sawant, P.W.6, who had

a telephonic conversation with her on 19 th November 2007 at

5.00 pm when he learnt that she had left Karad for Tarale

along with her husband after Bhoomi Poojan Program.

Second class would be of the neighbours of the accused and the

deceased who had seen the deceased after she had fallen down in

Pendase Wada and had brought her to Siddhivinayak Hospital at

Karad.

(a) P.W.2 - Rajendra Deshmukh resides as a tenant in the wada of

Nirmala Pendase.

(b) P.W.3 - Nirmala Pendase (Hostile witness) was the land lady.

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The third class of witnesses is Doctors who had examined the

deceased and accused.

(a) P.W.7 - Dr. Shashikant Lahoti runs a private clinic at Tarale

and according to him, on 20th November 2007 at about 3.00

to 3.30 am, the son of Deshmukh (Talathi) had requested him

to examine Rajashri who had fallen on the ground;

(b) P.W.8 - Pradip Kadam, the Medical Officer at Siddhivinayak

Hospital;

(c) P.W.9 - Dr. Dilip Patil attached to ICU Siddhivinayak Hospital.

(d) P.W.10 - Dr. Jivan Lahoti had examined the accused at about

9.45 pm on 20th November 2007;

(e) P.W.11 - Dr. Dhondiram Jadhav was attached to Sub-District

Hospital at Karad and had performed autopsy on the dead

body of the deceased and;

(f) P.W.12 - is the Investigating Officer.

3. It is proved that the accused was residing in the wada

owned by P.W.3 - Nirmala Pendase (Hostile witness) who is the

landlady. It is proved that the said wada has a courtyard in the centre

of the wada. P.W.1 - Shivaji Ghadge, the panch for the scene of offence

panchanama has deposed before the Court that upon entering into the

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wada he had seen broken bangles and two mobile handsets. There

were domestic articles. The said wada is in the heart of the village. The

recitals of the spot panchanama (Exh.42) which is drawn on 21st

November 2007 at about 10.50 am show that two mobile handsets and

broken bangles were lying in the courtyard. They had entered the

house of the accused. There is a canister for keeping grains. On the

eastern side, there is a small bathroom. There was a mobile handset of

Motorolla Company which was kept for charging, a suing machine and

broken pieces of bangles scattered on the floor. The accused was

present at the time of conducting the scene of offence panchanama.

There was a mobile handset of Sezam Company with charger. The

toilet is at a distance of 100 ft. from the house of the accused.

According to the accused, when she was proceeding to go to the toilet

she had fallen at the threshold and had sustained injuries. She was

therefore, taken to the Hospital and she died. At the spot, one handset

of Motorola Company with charger, broken bangle pieces, peach colour

hankerchief with multiple stains of vermilion were seized. P.W.1 stated

that he had not seen any W.C. in the wada at the time of panchanama

and that in fact, the wada is blocked by building on all four sides but

the courtyard is in the centre of wada. P.W.1 claims to be a social

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worker and an active member of Nationalist Congress Party.

4. P.W.2 - Rajendra Deshmukh also resides as a tenant in the

wada of Nirmala Pendase i.e. P.W.3. The accused happened to be his

neighbour. According to him, on the day of incident, it was Mrs.

Pendase who woke him up and informed that Rajashri had fallen

down. He saw that Rajashri had fallen down near the door of the

accused and her head was on the threshold of the house. P.W.2 along

with Mrs. Pendase had picked her up and put her in the jeep of

Prakash Jadhav and she was taken to the Siddhivinayak Hospital at

Karad. The jeep was called by Mrs. Pendase. The accused had come to

the hospital and soon Rajashri was declared dead. P.W.2 had acted as a

panch. Inquest panchanama is at Exh.45. At the time of inquest

panchanama, it was noticed that there were bruises on her lips, cheeks

and nose, there were small scratches on the mouth and neck.

Accidental death was registered under section 174 of Cr.P.C.

5. P.W.3 - Nirmala Pendase, land lady is declared hostile. She

has admitted that the accused and P.W.2 were her tenants. She had

seen Rajashri at the door step of the house fallen in supine position.

She has feigned ignorance to the fact that Rajendra Deshmukh and

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Mahesh Pawar had taken Rajashri to the Hospital in the jeep of Banda

Jadhav. But she has admitted that soon after the incident Mahesh and

Rajendra had taken Rajashri inside the house. She followed them. At

that time, Mahesh attempted to take steps to see that Rajashri regains

consciousness. She has stated that she does not recollect as to whether

her supplementary statement is recorded. However, her supplementary

statement was recorded on 30 th November 2007. According to her,

Police had not read over her statement to her. Despite all these

contradictions she has categorically admitted the presence of the

accused in the wada at the time of the incident by admitting to have

stated before the Police that he had tried to revive his wife Rajashri.

6. P.W.4 - Prakash Jadhav also has been declared hostile by

the prosecution. P.W.4 was the Driver of the jeep in which Rajashri was

taken to the Hospital.

7. P.W.5 - Arjun Sawant happens to be the father of the

deceased Rajashri. According to him, at the time of marriage the

accused was practising at Tarale Taluka Patan. The parents of the

accused and his siblings were residing jointly at Tarale. That, at the

time of incident Rajashri was carrying pregnancy of 2½ months. On

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28th November 2007 he received a call from Rajendra Deshmukh

(Talathi) informing him that Rajashri had fallen while going to answer

nature's call, she is serious and therefore, admitted in Siddhivinayak

Hospital at Karad. He reached the Hospital at 7.00 am. He saw

Rajashri in I.C.U. and soon thereafter, the Doctor informed him that

she has expired. After the funeral, the Police informed him that the

post-mortem notes indicate that the cause of death is throttling. He

had then lodged a report at outpost Tarale. According to him, on 19 th

November 2007, after Bhoomi Poojan of the bungalow the accused and

Rajashri had returned to Tarale. That, his son Dr. Amarsinh Sawant had

called upon Rajashri and at that time, she had informed him that she

has returned to village Tarale along with her husband and that the

other members have stayed back at Karad. Same information was

given by Rajashri to her sister Sunita. According to him, when he

visited the house of Rajashri after the funeral he saw that the accused

had created a scene to show that Rajashri had fallen on her way to the

lavatory. He has proved the contents of the FIR which is marked at

Exh.58. He had learnt from his son and his daughter that the accused

and the deceased had returned to village Tarale. That, he had

specifically stated that his son Dr. Amarsinh Sawant - P.W.6 had called

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Rajashri at 5.00 pm whereas his daughter Sunita had called upon

Rajashri at 8.00 pm and on both occasions Rajashri had stated that she

had returned to village Tarale along with her husband. Certain

photographs were shown to P.W.5 which he has admitted to be that of

his daughter and son-in-law. According to him, name of the mother of

the accused is Sunanda whereas his father's name is Shyamrao and the

and the name of their clinic at Tarale is 'Nanda-Shyam'. That, accused

was in-charge of the Clinic at Koparde whereas Nanda-Shyam Clinic at

Koparde, Taluka Satara was run by Rajashri and she has a consultancy

room in Nanda-Shyam Clinic at Tarale.

8. P.W.6 - Dr. Amarsinh Sawant is the brother of the deceased

Rajashri. According to him, both the husband and wife were practising

at Tarale. He has corroborated the evidence of P.W.5. According to him,

he had spoken to his sister at about 5.00 pm to discuss about the

medicines to be kept in OPD and at that time, he had learnt that she

had returned from Karad to village Tarale along with her husband. He

was next to his sister Sunita when she spoke to the accused and the

deceased at 8.00 pm. That, a loan was raised in the name of Rajashri

at the time of the marriage of Vidya, the sister of the accused and she

had also taken a loan for the purchase of a plot at Karad. It is admitted

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that there is no reference to the phone calls made to Rajashri in

Exh.58. He had also attended Bhoomi Poojan Program at Karad.

9. P.W.7 - Dr. Shashikant is declared hostile.

10. P.W.8 - Dr. Pradip Kadam, R.M.O. at Siddhivinayak Hospital

has deposed before the Court that according to him, 6 Doctors were

attached to the clinic. He has deposed before the Court that on 20 th

November 2007 at about 5.00 am a lady patient was admitted in the

Hospital. The relative of the patient narrated the history "as

unconscious due to fall". Upon examination, he had not found any

head injury but pulse and blood pressure was not recordable. Since, he

had some doubt he called Dr. Avinash Patil. He did not examine the

patient. He asked the relative of the patient to shift the patient to

Cottage Hospital for post-mortem. He has proved the medical case

papers of the victim which are at Exh.92/1 to 92/9. The recitals of

Exh.92/1 are as follows :-

"History told by Dr. Mahesh Pawar.

History of fall. Patient unconscious, pulse BP not recordable, pupils not reactive to light,

External injuries Bruises over neck region Redish discolouration over nose,

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Patient's seriousness informed to relatives.

Dr. Avinash Patil examined the patient at 5.15 am and noted alleged head trauma and unconscious (proper history not available)."

11. The recitals of Exh.92/5 at 8.30 am on 20/11/2007

indicates as follows :-

"30 years old female brought by her husband name Mr. Mahesh Pawar.

History of fall in bathroom. Unconscious. No past history of HTN. BP not recordable, pupils semi- dilated. Not reactive to light.

She was admitted under Dr. Avinash Patil. Treatment given : Cardio massage given

Medicines : --

death declared at 6.15 am primary cause of death is head injury. Exact cause of death referred for post-mortem. Dead body hand over to Mr. Vairat at 8.45 am.

Atropin injection given.

Exh.92/6 shows that the patient was kept on ventilatory support at 8.00 am and although pulse was not recordable she was administered Adrenaline, Atropine, Hydrocortisone."

12. Dr. Avinash Patil has expired in the year 2014 and

therefore, he could not be examined. Electro Cardiogram mapping was

done. The witness has stated that he could not identify any of the five

to six persons who had admitted the lady patient. He could not even

identify the accused Dr. Mahesh Pawar. According to him, he had pmw 12 of 25

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subsequently learnt that previously Dr. Mahesh Pawar was attached to

Siddhivinayak Hospital but he was not acquainted with Dr. Mahesh

Pawar. It is admitted that there were scratches of nail on the throat and

nose of that lady. Dr. Avinash Patil had written a letter to the Police

Station in respect of the said lady patient. The prosecution has

declared him hostile. In the cross-examination, P.W.8 has admitted the

contents of the medical case papers at Exh.92/1. It is also admitted

that soon after examination Dr. Avinash Patil declared the lady patient

dead. Yet, cardio massage and injections were given to the lady at 8.30

am as per Exh.92/5. Exh. 92/3 shows that someone had signed for Dr.

Avinash Patil and informed the Police that the patient is being treated

at Siddhivinayak Hospital.

13. P.W.9 - Dr. Dilip Patil happens to be one of the Directors of

the Siddhivinayak Hospital since 2001. He heads team of Doctors at

the said hospital. He has categorically stated that after receiving the

Court summons he had taken search of the medical case papers dated

20th November 2007, however, they could not be traced. The report at

Exh.103 was submitted to that effect in the Court. He has also

identified the signature of Dr. Avinash Patil at Exh.92/1 to 95/9. It is

admitted that Mahesh Pawar was attached to Siddhivinayak Hospital pmw 13 of 25

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as R.M.O. for 3 years before 12 to 13 years. It is pertinent to note that

the hospital has commenced functioning only in 2001 and the incident

is dated 20th November 2007.

14. P.W.10 - Dr. Jivan Lahoti has examined the accused Mahesh

Pawar at 9.45 pm on 20th November 2007. He had noticed the

following injuries on his person :-

"(a) Abrasion below right eye at medial canthus 1 cm x 1 cm local oedema plus;

(b) Abrasion over nose oblique 2 cm x ½ cm."

15. The age of injury was within 2 hours. Both the above

injuries were on the face of the accused and the distance between both

the injuries was 2 cm to 3 cm. According to the witness Exh.106 is not

injury certificate but it is pre-arrest certificate. The accused has not

stated any transaction/ circumstance in which he had sustained the

said injuries on his face.

16. P.W.11 - Dr. Dhondiram Jadhav has performed autopsy on

the dead body of Rajashri and had found the following external

injuries on her person :

"(a) Abrasions 2 in number, over right nostril ranging from 0.5 cm x 0.5 cm to 1 x 0.5 cm, red in colour, pmw 14 of 25

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(b) Abrasion over tip of nose, centrally placed of size 1 x 0.5 cm red in colour,

(c) Contusion over right side of lower lip of size 1 x 0.5 cm red in colour,

(d) Multiple abrasions on upper lip externally more on left side of size 0.5 x 0.5 cm each, red in colour,

(e) Contusion just below the chin on right side of size 1 x 0.5 cm red in colour,

(f) Contusion over inner side of lower lip of size 0.5 cm x 0.5 cm red in colour,

(g) Contusion over inner side of upper lip centrally placed of size 0.5 cm x 0.5 cm red in colour,

(h) Abrasion on anterior part of neck over the thyroid cartilage transverse of size 0.5 cm x ¼th cm, red in colour,

(i) Contusion on left side of neck just below the angle of mandible of size 0.5 cm x 0.5 cm, red in colour,

(j) Abrasion on left hand posterior aspect at the base of middle finger of size 1 x 0.2 cm, red in colour,

(k) Puncture marks on left side of chest just lateral to midline five in number."

17. According to him, all the above injury nos.1 to 10 were

caused by hard and blunt object whereas injury no.11 was due to

puncture marks. On internal examinations, he found the following

injuries :-

"(i) Head : injuries under the scalp : there was haemotoma 2 in number present under the scalp over frontal parietal region of size 2 x 2 cm, red in colour,

(ii) Brain : Brain coverings and brain matter congested.

(iii) Thorax : Walls, ribs, and cartilages :

Puncture marks five in numbers present on left side of chest just lateral to midline.

(iv) pleura : congested

(v) larynx, Trachea and Bronchi.

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           ....................................

(ix) Organs of generation : Gravid uterus of length 10 cm. fetus of length 5 cm., corresponds to 2½ months of intra uterine gestnal age."

Deceased Rajashri was pregnant in 2½ months of pregnancy. He has opined that the cause of death of Rajashri was death due to asphyxia due to throttling. He was present at the time of post-mortem."

18. P.W.12 - Prakash Patil is the Investigating Officer who was

attached to Umbraj Police Station on 20th November 2007. On 20th

November 2007 the complainant had approached the Police and

informed that he has learnt about the death of his daughter who was

throttled by her husband. The report is at Exh.58. On the basis of the

said report he had registered Crime No.144/2007 against the accused

for the offences punishable under sections 302 and 201 of the Indian

Penal Code. On 20th November itself he had received the advance cause

of death certificate of the deceased Rajashri Pawar which indicated

that the cause of death was "asphyxia due to throttling". He had

conducted spot panchanama and had completed the investigation.

According to him, along with the charge sheet he had filed 1 CD in

which he had recorded the purported confession of the accused. In any

case, it is not admissible evidence. The witness has proved the

omissions and contradictions of all the witnesses including that of the

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hostile witnesses. It is admitted in the cross-examination that he had

received the advance cause of death certificate prior to registration of

Crime No.144/2007. According to him, he had not informed the Police

and relatives of deceased Rajashri about the cause of death. However,

the relatives had learnt about the same from the Police.

19. Needless to reiterate that the Death certificate which

indicates that the death is due to throttling is admitted under section

294 of Cr.P.C. Hence, homicidal death of Rajashri is admitted by the

accused.

20. The three-fold submissions of the learned counsel which

are being discussed are as follows :-

(i) Firstly, that the accused was not at village Tarale in the

intervening night of 19th and 20th November 2007;

(ii) Secondly, the accused had no motive to eliminate his wife

who was carrying pregnancy of 2½ months;

(iii) Thirdly, the prosecution has not proved that the deceased

Rajashri had died at the hands of the accused.

21. The prosecution has been able to establish through the

witnesses that deceased Rajashri had died a homicidal death and the

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cause of death was asphyxia due to throttling. The accused has

pleaded that he was not at village Tarale on the day of the incident.

However, the said plea has not been taken to its logical end. The facts

are otherwise. There is a clear admission by P.W.3 - Pendase that after

Rajashri had fallen down the accused and Rajendra Deshmukh had

taken her inside the house and the accused had made attempts to

revive his wife. The learned counsel for the appellant has vehemently

submitted that in fact, P.W.3 is a hostile witness and no implicit reliance

could be placed upon her. The omissions and contradictions are proved

through P.W.12. It would be appropriate to place implicit reliance upon

the judgment of the Apex Court in the case of Bhagwansingh Vs. State

of Haryana,1 in which it is observed as follows :

"The prosecution could have avoided requesting for permission to cross-examine the witness under section 154 of the Indian Evidence Act. But the fact that the Court gave permission to the prosecutor to cross-examine his own witness, thus, characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence."

22. The said judgment was followed by the Apex Court in the

case of Rabindrakumar Dey vs. State of Orissa 2. In the case of

1 (1976) 1 SCC 389 2 (1977) AIR 170

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Rabindrakumar Dey (Supra), the Apex Court has observed thus :-

"It is also clearly well-settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him unreliable witness so as to exclude his evidence from consideration altogether."

23. The admission of P.W.3 to the effect that the accused was

present at home and called upon her and then tried to revive the life of

his wife at 3.00 am in Pendase wada cannot be overlooked.

24. The submission of the learned counsel for the appellant

that the accused was informed by Rajendra Deshmukh that his wife

had fallen down in the middle of the night at about 3.00 am and

therefore, they are bringing her to the hospital would show that the

accused had resided at Karad in the intervening night of 19 th and 20th

November 2007 cannot be taken into consideration. The distance

between Tarale and Karad is about 40 kms and the accused has failed

to demonstrate the mode of transport which was adopted by Rajashri

on 19th to reach Tarale. There is nothing on record to show that she

had travelled alone to Tarale from Karad. Moreover, evidence of P.W.6 -

Amarsinh Sawant that his sister had informed him that they both had

returned to Tarale has not been shattered in the cross-examination and

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hence, the same needs to be taken into account. Unless the said

evidence was shattered in the cross-examination, it cannot be

disbelieved.

25. The learned APP submits that the accused has taken a plea

of alibi in his statement under section 313 of Cr.P.C by way of stray

suggestions and therefore, the same cannot be taken into

consideration. It is also submitted that the witnesses who are residents

of the same wada have been won over by the accused. It is further

submitted that the accused was working in Siddhivinayak Hospital a

few years before the incident and therefore, the deceased was taken to

Siddhivinayak Hospital. That, the Hospital has tampered with the

evidence. The learned APP has drawn the attention of this Court to the

medical case papers which need to be appreciated. Firstly, the history

of fall in bathroom was given by none other than the accused. P.W.8 Dr.

Kadam had examined the patient at 5.00 am and could not find any

head injury but the pulse and BP was not recordable and therefore,

being confident that the patient was brought dead, he had requested

the relatives to shift the patient to Cottage Hospital. The bruises over

neck region were apparent. It was Dr. Avinash Patil who examined the

patient at 5.15 am and had noted head trauma, he had also recorded pmw 20 of 25

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that the blood pressure and pulse is not recordable, the pupils semi-

dilated and yet, the patient was admitted in I.C.U. and was given

cardio-massage which was apparently to show the parents of the

deceased, who were soon to arrive that the patient had expired in the

course of medical treatment. Doctor Patil had deliberately recorded the

cause of death as head injury only on the basis of the history given by

the accused as accused had worked with Dr. Avinash Patil in

Siddhivinayak Hospital. At the relevant time i.e. in 2007 Dr. Kadam

had just joined Siddhivinayak Hospital and therefore, did not know the

accused Dr. Pawar. There is a categorical admission by Dr. Kadam that

3 to 4 days after 20th November 2007 he had learnt that Dr. Mahesh

Pawar was previously attached to Siddhivinayak Hospital. Dr. Kadam

has proved the signature of Dr. Avinash Patil who had expired in 2014.

It is also admitted that initially Dr. Patil had asked the relatives of the

patient to shift her to Cottage Hospital for post-mortem. P.W.8 had also

noticed scratches of nails on the throat and nose of that lady, the

hostility of the witness is clearly seen after he had learnt that the

accused was attached to Siddhivinayak Hospital. He has deposed in

contradiction to the contents of Exhs.91/1 to 92/9. He was therefore,

declared hostile by the prosecution. But the documents at Exh.92/1

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and 92/6 prove that the patient was brought dead to the hospital. In

these circumstances, it would be incumbent upon the accused to give a

plausible explanation for the homicidal death of his wife while in

custody. Moreover, the victim was carrying pregnancy of 2½ months at

the time of her death. The same is not mentioned in the medical case

papers.

26. Post-mortem notes show that although the autopsy was

performed at about 10.00 am rigor mortis was well marked in the

whole body which falsifies the fact that the deceased had died at 6.15

am. Post-mortem lividity was also present all over the body. Moreover,

the presence of petechial hemorrhage in mucosa of lip and cheek

would clearly show that there was bleeding under the skin. That there

were multiple abrasions on upper lips externally, abrasions over the tip

of nose, contusion over the inner side of upper lip, abrasion on the

interior part of neck over the thyroid cartilage transverse of size 0.5 x

1¼ cm., red in colour. Column no.17 shows that there was a puncture

mark on left side of chest, just lateral to midline, five in numbers and

the cause of injuries nos.1 to 10 is hard and blunt object whereas

injury no.11 is puncture marks. All these would establish that she had

died a violent death. Being a Doctor himself the accused could not

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have believed that his wife could have sustained such injuries on a fall.

He has not disclosed to the Doctors that his wife was carrying

pregnancy of 2½ months. On plain observation, the accused ought to

have suspected that his wife died a violent homicidal death. He has not

even suspected any person. All these factors are clearly inconsistent

with the innocence of the accused.

27. The learned counsel for the appellant has vehemently

submitted that there was no demand of dowry, neither there was any

harassment or cruelty meted out to the victim at the hands of the

accused and therefore, the complainant has also not alleged the same

and all this would show that accused had no motive to eliminate his

wife, a mother of his two year old daughter who was herself a Doctor

and therefore, he deserves to be acquitted. In catena of decisions, the

Supreme Court has held that "motive is not a sine qua non for bringing

the offence of murder or of any crime home to the accused". In any

case, it is a settled position of law that "in any case, motive is an

emotion or rather a state of mind". The conduct of a person would

reflect his motive because conduct is the effect and expression of that

inward emotion. The motive would be known to the assailant only and

to no one else, sometimes not even to the victim. The fact that the pmw 23 of 25

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accused attempted to stifle the investigation is relevant under section 8

of the Indian Evidence Act. The conduct of the accused which destroys

presumption of innocence can be considered as material evidence

against the accused. In cases where the circumstances speak for

themselves the question of presumptive reasoning would not arise.

28. The Court also cannot be oblivious of the fact that the

accused has given a false explanation to the Doctor and to the Court,

that by itself would provide an additional link to complete the chain of

circumstances established by the prosecution. A false explanation

would be an additional link to lend an assurance to the Court and not

otherwise. The Apex Court in the celebrated landmark judgment of

Sharad Birdhichand Sarda Vs. State of Maharashtra 3, has observed

thus:-

"It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.

(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation."

3 1984 AIR (SC) 1622

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29. Hence, we have no hesitation to hold that the false

explanation offered by the accused has provided an additional link to

the circumstances which are established by the prosecution. The

prosecution has brought home the guilt of the accused beyond

reasonable doubt. Hence, no interference is called for. Hence, we pass

the following order :-

ORDER

(i) The Appeal is dismissed;

(ii) The conviction and sentence recorded by the learned

Sessions Court in Session Case No.31 of 2008 in Crime

No.144 of 2007 vide judgment and order dated 16 th May

2016 is maintained;

(iii) In the eventuality, the accused has not complied with the

order dated 2nd February 2021, the Police shall arrest him

and produce him before the Jail Authorities;

(iv) The appeal is disposed of in above terms.

      (N.R. BORKAR, J)                (SMT. SADHANA S. JADHAV, J)




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