Sanjay Shamrao Birange vs The State Of Maharashtra
2022 Latest Caselaw 2463 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION

                          CRIMINAL APPEAL NO.13 OF 2016

Sanjay Shamrao Birange                                    ... Appellant
           Versus
The State of Maharashtra                                  ... Respondent
                                   ....
Mr. Ajit M. Savagave, Advocate (appointed) for the Appellant.
Ms. Veera Shinde, APP, for the Respondent-State.
                                   ....

                              CORAM : SMT. SADHANA S. JADHAV &
                                      SARANG V. KOTWAL, JJ.

RESERVED ON : 09th MARCH, 2022

PRONOUNCED ON : 11th MARCH, 2022

JUDGMENT : [PER SARANG V. KOTWAL, J.]

1 The Appellant has challenged the judgment and order

dated 6.4.2015 passed by the Additional Sessions Judge,

Jaysingpur in Sessions Case No.14/2012. The Appellant was

convicted for commission of the offence punishable under Section

302 of the Indian Penal Code and was sentenced to suffer life

imprisonment and to pay a fine of Rs.1,000/-; and in default, to

suffer rigorous imprisonment for three years. The Appellant was

granted set off as per Section 428 of Code of Criminal Procedure,

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1973 for the period which he had already undergone as an under-

trial prisoner. The Appellant was the only accused in the trial.

2 Heard Shri Ajit Savagave, learned counsel appointed

appointed for the Appellant and Ms. Veera Shinde, learned APP for

the State.

3 The prosecution case, in brief, is as follows:

The deceased in this case was one Indu. She was earlier

married with one Vijay and she had two sons from that marriage,

namely, Ajay and Rohit. It is the prosecution case that subsequently

she married the present Appellant and at the time of the incident

i.e. on 13.2.2012 she was residing with the Appellant and Rohit at

village Chipri. In that night, Rohit saw that the Appellant was

removing money from the person of Indu. Rohit got suspicious. He

went near her and touched her head. He found that she had

suffered bleeding injury on the head. The Appellant went away

from the house. Rohit inspected the injured Indu's injury and he

found that her head was crushed by a grinding-stone which was

lying nearby. He realized that the Appellant had committed murder

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of the deceased Indu. He immediately rushed to Indu's sister

Vimal, who was residing in the same village. He informed this fact

to Vimal, who along with others rushed to the Appellant's house.

They found that Indu was lying in a pool of blood. Vimal went to

the police station and lodged her FIR at 1.20 a.m.. The

investigation was carried out. The Appellant was not found

immediately but he was found after about three months in a village

in Karnataka. He was arrested. The investigation was carried out

and the charge-sheet was filed. The case was committed to the

Court of Sessions and at the conclusion of the trial the Appellant

was convicted.

4 In support of its case, the prosecution examined following

witnesses :

PW-1 Vimal Kamble - sister of the deceased Indu. She had

lodged the FIR.

PW-2 Rohit Sathe, was the alleged eye witness. He was present

in the house when the deceased was assaulted.

PW-3 Ajay Sathe was the brother of PW-2 Rohit and son of the

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deceased. He was staying separately for his education.

PW-4 Ujwala Sankpal and PW-5 Jaysing Gaikwad were the

neighbours of the Appellant and the deceased.

PW-6 Suresh Birange was the relative of the Appellant. He had

turned hostile. According to the prosecution case, the Appellant

had called him and was checking about the news from his

village.

PW-7 Ramchandra Birange was another relative of the Appellant.

He was also declared hostile. On 13.2.2012 he had received a

phone call from the Appellant and he had asked for the phone

number of PW-6 Suresh, which was given by this witness to the

Appellant.

PW-8 Dr. Pandurang Pakhare had conducted the postmortem

examination. The deceased had one external injury on the left

side of the head. Internal injury showed that there was fracture

of left temporal bone of the skull, fracture of left ear ossicles and

rupture of both ear drums. According to this witness the

deceased had suffered injuries after two hours of the last meal.

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Those were caused by hard and blunt object and the cause of

death was due to shock due to intra cranial haemorrhage due to

head injury. PW-8 opined that the injury could be caused by the

grinding-stone.

PW-9 Usman Indikar was the employer of the Appellant. On

12.2.2012 he had paid salary to the Appellant at 11.00 a.m.

Thereafter he had not seen the Appellant. He has stated that the

Appellant was residing at Chipri.

PW-10 Satish Marale was a neighbour and he has deposed that

the Appellant was residing with the deceased and her son in the

same house and there used to be frequent quarrels between the

Appellant and the deceased. In the cross-examination, he has

admitted that he had not disclosed names of the Appellant, the

deceased and PW-2 to the police.

PW-11 Ananda Kamble was residing near PW-1 Vimal's house

and he had accompanied PW-1 Vimal and others when they had

gone to the house of the deceased after the incident. He has

deposed that PW-2 Rohit had told him that his father had

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assaulted the deceased. He has also deposed that the deceased,

the Appellant and PW-2 were residing together in their house at

Malbhag Area. He admitted that, he had not disclosed the same

fact in his police statement. He had also not told the police that

PW-2 had told him that the Appellant had assaulted his mother

with a stone.

PW-12 is ASI Bajirao Patil. He had arrested the Appellant on

7.5.2012 from Kankanwadi, Karnataka.

PW-13 PSI Annappa Kamble was the first investigating officer. He

had taken down the FIR and the entry in the station diary. He

had prepared the inquest panchnama and thereafter had handed

over the investigation to API Risawadkar. The station diary entry

is produced on record at Exhibit-48. The entry was taken at 1.20

a.m. and the entire case as narrated by PW-1 Vimal was

mentioned in that station diary entry. The FIR thus was lodged

at 1.20 a.m. in the night.

PW-14 Dy.S.P. Jaysing Risawadkar was the investigating officer.

He had recorded the statements of the witnesses. He has proved

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the omissions and contradictions from their statements.

Besides this oral evidence, the prosecution has produced

on record the C.A. report which shows that there was human blood

on the grinding-stone but the blood group was inconclusive. The

blood on the clothes of the deceased was of 'B-group'. The blood

group of the deceased examined separately also showed that it was

of 'B-group'.

5 Shri Savagave, learned counsel for the Appellant

submitted that there is no direct evidence to the incident. PW-2

Rohit has not actually seen the blow given to the deceased. His

evidence is not free from doubt. He is the only witness who is

deposing about the Appellant's presence in the house. There is no

other evidence to show that the Appellant was in the house when

the deceased was assaulted. PW-2 Rohit's evidence is not

trustworthy. The record shows that he was not staying in the

village but was working in Chennai. Therefore, his version that he

came to reside with the deceased and the Appellant is not probable.

6 Shri Savagave further submitted that none of the other

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witnesses are relevant in this case because they have not seen the

Appellant and the deceased in the house around the time when the

incident had taken place. PW-1 Vimal has relied completely on the

information given by PW-2 Rohit. Therefore, if PW-2 Rohit's

evidence is discarded, being not trustworthy, then, the entire

prosecution case must fall.

7 He submitted that the circumstance of 'last seen together'

theory is entirely dependent on the evidence of PW-2 Rohit and,

therefore, considering the quality of his evidence, this circumstance

must be discarded.

8 He submitted that there is no recovery at the instance of

the Appellant though there are allegations that the mobile phone

and some amount was taken by him after commission of murder.

The spot panchnama itself does not show that there were any blood

stains on the grinding-stone.

9 Shri Savagave relied on a few judgments in support of his

case as follows:

[i] Judgment of a Division Bench of this Court in the case of

Krishna Mahadev Chavan Vs. State of Maharashtra through

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Pusegaon Police Station1. In this judgment, Section 106 of the

Evidence Act was considered as well as the observations of the

Hon'ble Supreme Court in a case of circumstantial evidence was

quoted in paragraph-50 of this judgment. It was observed that each

and every incriminating circumstance must be clearly established by

reliable and clinching evidence and the circumstance so proved

must form a chain of events from which the only irresistible

conclusion about the guilt of the accused can safely be drawn and

no other hypothesis against the guilt is possible. There is a long

mental distance between "may be true" and "must be true" and the

same divides conjectures from sure conclusions.

Shri Savagave also relied on the observations made by

the Division Bench in paragraph No.46 of this judgment based on

the observations of the Hon'ble Supreme Court in another case. It

was observed that Section 106 of the Evidence Act does not shift

the burden of proof in a criminal trial, which is always upon the

prosecution. It lays down the rule that when the accused does not

throw any light upon facts which are specially within his

knowledge, and which could not support any theory or hypothesis 1 2021 SCC OnLine Bom 191

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compatible with his innocence, the Court can consider his failure to

adduce any explanation, as an additional link which completes the

chain.

According to Shri Savagave, in the present case, there is

no question of invoking Section 106 of the Evidence Act because

the prosecution has not discharged its burden of proving the basic

necessary facts.

[ii] Judgment of the Hon'ble Supreme Court in the case of

Shivaji Chintappa Patil Vs. State of Maharashtra2 . In that case, the

Hon'ble Supreme Court had observed that it was well settled that

Section 106 of the Evidence Act does not directly operate against

either a husband or wife staying under the same roof and being the

last person seen with the deceased. Section 106 of the Evidence Act

does not absolve the prosecution of discharging its primary burden

of proving the prosecution case beyond reasonable doubt. It is only

when the prosecution has led evidence which, if believed, will

sustain a conviction, or which makes out a prima facie case, that

the question arises of considering facts of which the burden of

2 2021 ALL M.R. (Cri) 1569

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proof would lie upon the accused.

In that case, the Hon'ble Supreme Court had observed

that the prosecution had even failed to prove beyond reasonable

doubt, that the death was homicidal.

[iii] The judgment of the Hon'ble Supreme Court in the case

of Nagendra Sah Vs. State of Bihar 3 . The Hon'ble Supreme Court

observed thus :

"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the

3 2021 (10) SCC 725

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Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."

10 On the other hand, learned APP submitted that the

prosecution has established its case beyond reasonable doubt. The

evidence of PW-2 Rohit is sufficiently reliable. He had immediately

rushed to PW-1 Vimal, who had gone to the spot of incident and

immediately the FIR was registered. There was no scope for

concocting any false story. There is ample evidence on record to

show that PW-2 Rohit, the deceased Indu and the Appellant were

staying together in the same house. Therefore, PW-2 Rohit is a

natural witness.

11 We have considered these submissions. We have

appreciated the evidence on record based on the principles laid

down in the judgments referred to hereinabove. In that context,

the evidence of PW-1 Vimal and PW-2 Rohit is very important. PW-

2 Rohit has stated that the deceased was his mother. One Vijay

Sathe was his father. His younger brother Ajay was taking

education at Turachi. In the year 2012 he was residing at

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Dhanagar Galli with the deceased and the Appellant. According to

him, the Appellant had married the deceased. They came to Chipri

in the year 2012. The Appellant was staying with the deceased

from about 8 to 9 years. But, he used to assault her by suspecting

her character. Initially they resided near the house of PW-1 Vimal

but because of the frequent quarrels in their house they left that

house. On 12.2.2012, he received his salary in the morning. He

handed it over to the deceased. Then the deceased went to Turachi

to meet PW-3 Ajay-brother of PW-2. She returned at around 9.00

p.m.. There was quarrel between the Appellant and the deceased

as she had come late. Then they had their meals. Then the

deceased, the Appellant and PW-2 himself went to sleep in the

house. He woke up in the night to answer the nature's call. He

saw that the Appellant was removing money from the person of the

deceased. PW-2 questioned him. The Appellant told PW-2 to go to

sleep. This witness however went towards his mother and touched

her forehead to find that she was bleeding. The Appellant did not

offer any explanation and just ran away from the house with money

and phone. According to PW-2, the Appellant had assaulted the

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deceased with a grinding-stone on her head. The stone was lying

nearby. PW-2 then immediately went to the house of PW-1. PW-1

then along with others came back to the place where the deceased

was lying. After that, PW-1 lodged her FIR.

In the cross-examination, PW-2 Rohit admitted to a few

omissions from his police statement. As per those omissions, he

had not told the police that the Appellant was removing money

from the person of the deceased. He had also not told the police

that the Appellant had assaulted the deceased with the stone.

12 We have considered the impact of this witnesse's evidence

on the prosecution story as well as on the defence argument.

Though, there are two important omissions, as mentioned earlier,

they do not go to the root of the matter. First of all, when this

witness PW-2 Rohit woke up, the deceased had already suffered the

bleeding injuries and, therefore, he had not actually seen the

Appellant giving a blow with the stone on the deceased's head.

Though, he has not stated to the police that the Appellant was

taking out money, the fact remains, as per his deposition, that the

Appellant was present in the house. He was near the deceased and

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then the Appellant just ran away never to return back.

13 That the Appellant was in the same village is proved by

the prosecution through the evidence of PW-9 Usman Indikar, who

was employer of the Appellant and had paid him salary at 11.00

a.m. on 12.2.2012. PW-10 Satish Marale and PW-11 Ananda

Kamble have deposed that the Appellant, the deceased and PW-2

Rohit were residing together. PW-4 Ujwala Sankpal has also stated

that they were residing together. PW-5 Jaysing Gaikwad has stated

likewise. Though PW-4 and PW-5 had not stated this fact in their

police statements as per the cross-examination, the cumulative

effect of their evidence and also that of PW-1 Vimal does prove that

the deceased was residing with the Appellant and PW-2 Rohit.

Therefore, PW-2 Rohit becomes a natural witness. He has deposed

on material aspects about the Appellant's presence at the time of

incident.

14 The subsequent conduct of the Appellant is also very

material in this case. After committing the assault, he had just left

the village never to return. He was arrested after about three

months from a village in Karnataka. He tried to make enquiries to

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see the reaction in his village by calling his relatives PW-6 Suresh

Birange and PW-7 Ramchandra Birange. But, he himself never

returned to the village to attend the funeral of the deceased. The

fact that he was residing and was in a relationship with the

deceased is sufficiently proved by the prosecution and, therefore,

his subsequent conduct assumes more importance.

15 PW-1 Vimal has spoken about the deceased, the Appellant

and their frequent quarrels. She has deposed about their stay

together in a house near PW-1's house and then subsequent shifting

to the house where the incident had taken place. PW-2 Rohit had

immediately rushed to PW-1. She, in turn, had gone to the spot

with others, and thereafter immediately had approached the police

station. She had given her complaint on 1.20 a.m. i.e. within a very

short time. The incident had taken place at about midnight when

PW-2 Rohit had seen the bleeding injury. There was no scope to

concoct a false story or to implicate the Appellant falsely. The

immediate registration of FIR with the police is of some significance

in this case.

16 The evidence of the Doctor who carried out the

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postmortem examination shows that the deceased had died within

two hours of taking meals. This also supports the version of PW-2

Rohit, because he has stated that they had taken meals at around

that time and the incident had taken place after two hours of their

taking meals.

17 Therefore, in our view, the prosecution has proved all the

basic facts beyond reasonable doubt and, therefore, the burden

shifts on the Appellant to explain the facts which were within his

exclusive knowledge as per Section 106 of the Evidence Act. In this

case, the Appellant has offered no explanation. His statement

recorded under Section 313 of Cr.P.C. merely denies the prosecution

case. No specific defence is taken. Therefore, his offering no

explanation provides an additional link to the prosecution case

which they have already proved. In any case, PW-2's evidence

proves the prosecution case beyond reasonable doubt.

18 The subsequent conduct of the Appellant in this case

assumes more importance in view of the facts narrated

hereinabove. Therefore, based on the ratio of the judgments cited

by the learned counsel for the Appellant; in this particular case,

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since the prosecution has discharged its burden of proving all the

important basic facts, the burden did shift on the Appellant, which

he has failed to discharge.

19 Considering all these factors, no case for acquittal is

made out. There is no reason to interfere with the impugned

judgment and order convicting and sentencing the Appellant. The

Appeal, therefore, fails and is accordingly dismissed.

20 The efforts put in by the learned counsel for the

Appellant, who was appointed to represent the Appellant, are

appreciated. He shall be paid his legal fees as per the Rules.

(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.) Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date: Deshmane (PS) 2022.03.11 18:02:46 +0530

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