Ashok S/O. Lakhanlal Sura vs The State Of Maharashtra
2023 Latest Caselaw 3978 Bom

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 904 OF 2018

Ashok S/o Lakhanlal Sura
age 36 years, occ. Labour
r/o Charwaripura, Balaji Galli
Near Maratha Building
Jalna, Dist. Jalna.                                        Appellant

       Versus

The State of Maharashtra                                   Respondent

Mr. N. S. Ghanekar, Advocate holding for Mr. S. G. Ladda, Advocate
for the appellant.
Mr. S. P. Sonpawale, APP for the State.


                         CORAM : R. G. AVACHAT &
                                  R. M. JOSHI, JJ.

RESERVED ON : 21st DECEMBER, 2022.

PRONOUNCED ON : 21st APRIL, 2023.

JUDGMENT : ( PER R. M. JOSHI, J. )

1. Being aggrieved by the judgment and order dated 15 th

November, 2018 passed by the Additional Sessions Judge, Jalna in

Sessions Case No. 150/2016 of conviction for offence punishable

under Section 302 of the Indian Penal Code thereby sentencing him

to suffer imprisonment for life and to pay fne of Rs. 10,000/-, in

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default to suffer rigorous imprisonment for one year, the appellant

has preferred this appeal.

2. Case of prosecution can be narrated in brief as under :-

On 19th June, 2016, Ashok Lakhan Lal Sukla Sura

(appellant) went to Sadar Bazaar police station at around 6:30 a.m.

and met Duty Offcer and disclosed to him that he had committed

murder of his wife (Pooja). He had knife stained with blood in his

hand. So also his hands and clothes were smeared with human

blood. The Duty Offcer took him to PSI Pardesi. Therefore, police

along with the said person went to his house situated on frst foor in

building near Maratha building at Charvai Pura. The said room

admeasured 10×10 sq. ft. wherein dead body of a woman was found

lying with number of injuries on her person. Police conducted

Punchnama of the spot in presence of panch witnesses. PSI Pardesi

at around 12:19 p.m. registered First Information Report (FIR) on

behalf of the State and offce came to be registered. Appellant was

taken into custody, knife brought by him to the police station which

was kept in safe custody was seized drawing seizure panchanama.

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3. PI Nimbhore conducted investigation into the crime. He

recorded statements of witnesses and muddemal properties seized

were sent to forensic laboratory and on conclusion of investigation

charge-sheet was fled against the appellant.

4. As appellant abjured charge, he was tried. In order to

prove the guilt of the appellant, prosecution examined eight

witnesses i.e. P.S.I. Pardeshi (PW 1)(Informant) (Exhibit 14), Pradeep

Bhadare (P.H.C.) (Exhibit 19), Namdeo Borse (PW 3) (Panch witness)

(Exhibit 20), Manoj Kajve (PW 4) (Memorandum panch) (Exhibit 25),

Sandeep Sura (Brother of accused) (Exhibit 33), Dr. Bhimsing Chavan

(Medical Offcer) (PW 6) (autopsy) (Exhibit 38), Bhanudas Nimbhore

(Investigating Offcer) (Exhibit 44) and Shivnath Yadav (PW 8) (father

of deceased).

5. Learned counsel for the appellant argued that the burden

is on the prosecution to prove guilt of the appellant beyond shadow of

reasonable doubt and having regard to the nature of evidence

adduced, the guilt cannot be said to have been conclusively proved.

To support his contention, he relied upon the circumstances on

record which indicate that though allegedly the appellant had been to

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the police station at about 6.30 am, however, the knife allegedly

carried with him was seized only after 6 to 8 hours, which creates

doubt about its recovery. It is further contended that there is no

evidence on record to show that knife was kept in the sealed

condition till it was sent for chemical examination. In support of his

contention, he placed reliance on the judgment in the case of State of

Rajasthan vs. Motia, 1953 SCC Online Raj 51. According to him, in

case of circumstantial evidence whenever there is missing link, the

guilt of the accused cannot be said to have been proved. By referring

to observations in the judgment of Sharad Birdhichand Sarda Sarda

vs. State of Maharashtra, (1984) 4 SCC 116, it is stated that the

onus is on the prosecution to prove the chain of events was complete

and any infrmity or lacuna in the prosecution case cannot be cured

by false defence or any plea of the accused.

6. He further drew attention of this Court to the cross

examination of panch witness as well as evidence of brother of

appellant which shows that the house of the appellant is situated at

such a place with access from terrace of the adjoining building.

According to him, in view of evidence on record showing articles in

the house being in scattered condition, the theory of defence that the

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possibility of deceased being killed in an attempt to commit theft is

probabilised. It is further argued that there was no motive for the

accused to kill his wife and in absence of any motive, he cannot be

held guilty. To support said submission, he placed reliance on State

(Delihi Administration) vs. Shri Gulzari Lal Tandon, (1979) 3 Supreme

Court Cases 316. He also tried to convince this Court with

submission that investigation in this case is not fair and that there is

no explanation for delay in lodging First Information Report as well as

recovery of the weapon and took support of the judgment of the

Hon'ble Apex Court in the case of Mohmood vs. State of Uttar

Pradesh, (1976) 1 Supreme Court Cases 542, to submit that in such

situation beneft of doubt must go to the accused. It is also stated

that if the case of the prosecution is accepted that the accused had

reported to the police that he committed murder of his wife, in that

case, the said statement ought to have been treated as First

Information Report and the First Information Report sought to be

fled by PSI Pardeshi needs to be discarded as held by the Hon'ble

Apex Court in the case of Ramesh Baburao Devaskar and others vs.

State of Maharashtra, 2008 All MR (Cri) 293 (S.C.) It is further

argued that there is no evidence in order to connect the allegedly

seized weapon with the death of the deceased. In this regard,

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reference is made to the cross examination of the Medical Offcer who

conducted autopsy on the dead body. In response to the

submissions of learned APP that the conduct of the accused and the

defence taken by him of alibi is not sustainable, it is argued that the

initial burden to establish the case against accused beyond

reasonable doubt is on prosecution and in absence of such proof,

even false defence taken by accused cannot become a ground for his

conviction. In this regard reliance is placed on the case of Vijayee

Singh and others vs. State of Uttar Pradesh, (1990) 3 Supreme Court

Cases 190. In addition to the judgments cited supra, he placed

reliance on the following judgments to justify arguments seeking

acquittal :-

i)         Malaichamy and another vs. State of Tamil Nadu,
           (2019) 17 Supreme Court Cases 568
ii)        Suresh and another vs. State of Haryana,
           (2018) 18 Supreme Court Cases 654
iii)       Shankarlal Gyarasilal Dixit vs. State of Maharashtra
           (1981) 2 Supreme Court Cases 35
iv)        Bhagirath Bhaurao Kanade vs. State of Maharashtra
           1996 SCC Online Bom 316.
v)         Trilok Chand Jain vs. State of Delhi,
           (1975) 4 Supreme Court Cases 761
vi)        Aghnoo Nagesia vs. State of Bihar
           (1966) 1 SCR 134






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vii)    Satye Singh and another vs. State of Uttarakhand
        (2022) 5 Supreme Court Cases 438

7. Learned APP on the other hand supported the impugned

judgment by stating that all circumstances if taken together lead to

the only conclusion that the accused is the author of the crime.

According to him, accused was staying with his wife. There is no

evidence on record to show that except for them anyone else than

their small daughter was staying with them. According to him, it is

not in dispute that accused had been to the police station with his

clothes smeared with human blood and also with a knife and in such

circumstances, the only inference which can be drawn from this

evidence is that after committing murder of his wife he went to the

police station. According to him, this is not a ft case wherein any

beneft of doubt can be given to the accused to acquit him.

8. As a rule burden of proof of guilt of accused beyond

doubt lies on the prosecution and unless the prosecution succeeds in

proving the basic facts as alleged against the accused, there is no

occasion for the accused to offer explaination regarding any

circumstance. The prosecution also must prove the entire chain of

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circumstances which may compel the Court to arrive at the

conclusion that the accused only had committed the alleged crime

and that without any hesitation the Court should be able to convict

the accused.

9. Case in hand is based on circumstantial evidence as no

one has witnessed the incident in which deceased Pooja died. Before

adverting to factual matrix and assessment of evidence on record, fve

golden principles laid down by Apex Court in case of Sharad

Birdhichand Sarda need to be considered which read thus :-

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not merely 'may be' established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

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(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable doubt for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

10. The fact about deceased met with death in her

matrimonial home on 19th June, 2016 before 5.00 to 5.30 pm due to

the assault caused on her with weapon is not in dispute. It is a

precondition for the proof of charge of murder that death of deceased

must be proved to be homicidal. Prosecution examined Dr. Bhim

Singh Chauhan (PW 6), who has conducted autopsy on the dead

body. He found six incised wounds on the dead body and according

to him, the stab injuries were caused by sharp edged object. He

opined that the death of the victim was due to cardio respiratory

arrest due to haemorrhagic shock due to injury to vital organ and

lung perforation. Defence had cross examined this witness only for

the purpose of disputing the fact about the time of death.

Prosecution was able to prove that deceased had sustained injuries

and the Punchnama of the dead body further supports the said fact.

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There is further support to this evidence from inquest panchanama

(Exhibit 16) (admitted by defence). This is not the case of natural or

suicidal death. Even defence has come out with the case that when

the accused came to house, he found his wife dead with injuries on

her person, and thus, from evidence on record it is conclusively

established that deceased Pooja died a homicidal death.

11. It is not in dispute that on 19 th June, 2016, at 6.00 to

6.30 pm appellant had been to police station. As per testimony of PSI

Pardeshi, appellant came to police station with blood stained clothes

and knife. There is no reason to discard the evidence because in the

cross examination it is specifcally suggested to this witness that

appellant came in police station with knife to report death of his wife

caused by someone else. Sandip Sura (PW 5), brother of appellant

also states that appellant was asked to go to police station to lodge

report. He further states that clothes of appellant were smeared with

blood as he had held his wife. Thus, the evidence on record

conclusively proves that appellant went to police station with blood

stained clothes and knife in his hand.

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12. The defence is challenging the First Information Report

lodged by PSI Pardeshi and no recording of the statement of accused

promptly when he went to the police station and also challenge is

made to delayed recovery of knife. These issues are however amply

explained from the evidence on record. On receipt of information

from appellant, PSI Pardeshi immediately went to spot of incident

and found Pooja lifeless with injuries. He, therefore, informed about

it to his superior and API Nimbhore was asked to take further steps.

Dead body was sent to Civil Hospital, Jalna, by police constable

Tange and Waghmare. He was present at spot upto 10.00 am. He,

thereafter, went to police station and lodged First Information Report.

This evidence on record is self explanatory to the time taken in

lodging report as well as not recording statement of appellant as First

Information Report. PSI Pardeshi by visiting the spot ascertained

fact of death of wife of appellant and which was normal in view of

unnatural conduct of appellant to come to police station claiming

murder of wife. Acertainment of actual death of appellant before

lodging First Information Report needs to be taken as appropriate

step in peculiar facts and circumstances of the case. In absence of

any malafdes in lodging report against appellant, the delay caused in

registering First Information Report is not fatal to the case of

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prosecution. There is no universal rule that, in every case delay in

lodging First Information Report is treated as fatal to prosecution

case and more particularly, when it is explained properly, cannot be

considered as ground for acquittal of accused. Non recording of

statement of appellant also stands explained from fact of

ascertainment of the truthfulness of information given by appellant.

We, therefore, do not fnd reason to discard First Information Report.

13. Though it is sought to be argued that the recovery of

knife from the accused is doubtful but there is admission of the

accused that he had been to the police station with knife, in view of

suggestion in cross examination to PSI Pardeshi that accused had

been to the police station with knife in his hand for recording

incident of death of his wife by someone. The said suggestion is

binding upon the accused. Considering the steps taken by PSI

Pardeshi for ascertainment of facts, no doubt time has lapsed in

between the seizure of knife, but its seizure is proved through panch

witness Borse who claimed that knife was seized at police station vide

Panchanama (Exhibit 22). No suggestion is made to this witness

about no such seizure is made but it is only suggested that the knife

was not seized from possession of accused.

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14. Apart from recovery of knife, there is further evidence to

connect the said knife with the incident of assault. Medical Offcer

Dr. Chavan has candidly deposed that the injuries caused to

deceased are possible with knife. During cross examination, it is

tried to be brought on record that he is not sure that the injuries to

deceased are by Article 9 knife only.

15. It is necessary to take note of the fact that evidence of

Medical Offcer is always in the form of opinion. Thus, statement

therefore, does not rule out completely use of knife in assault on

deceased. Particularly, when there is further evidence in the form of

appellant himself taking knife to police station and it is not denied

that Article (9) is different knife and not the one taken by him to

police station. This knife is stained with human blood, though

inconclusive for grouping. However, there is no suggestion to

Investigating Offcer about planting human blood on knife or any

other muddemal articles. Thus, there is suffcient evidence to

connect knife with the murder of deceased.

16. Panch witness, further, deposed about seizure of blood

stained baniyan, trouser and underwear under panchanama (Exhibit

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23). In the cross examination, no dispute is made about this seizure.

There is further evidence on record to show that when appellant went

to police station he was wearing baniyan and night trouser smeared

with blood. Appellant tries to explain smearing of his clothes with

blood by stating in statement under Section 313 of the Code of

Criminal Procedure that when he saw dead body of wife he embraced

her and therefore, the clothes were smeared with blood. In this

regard, it would be relevant to take note of CA report (Exhibit 55)

which shows that few blood stained were found on the lower portion

of Sandow baniyan and front portion of night pant. This fact

indicates that clothes won't have got stains like these on embracing

dead body. Similarly, if the nature of clothes worn by appellant is

considered, then it is clear that he was at home in the night and not

as claimed, came in the morning from Aurangabad. If it was so, it is

absolutely impossible that he came home in baniyan and night pant,

unless it is plausibly explained by appellant. These facts clearly rule

out the possibility that appellant was not at home and he came home

from outside after death of his wife.

17. Moreover, the fact of knife being brought by him before

police is not explained by appellant. Ordinarily, if he is not assailant,

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the appellant would have no reason to take knife with him to police

station. This conduct of accused becomes relevant under Section 8

of the Evidence Act which indicates his guilty mind.

18. As far as maintaining the muddemal intact till referred to

Forensic Science Laboratory, there is evidence of panch witness,

Namdeo Borse, who has duly proved seizure panchanama (Exhibit

22). It is clear from the said panchanama that the muddemal

properties were seized and sealed at the spot. Moreover, prosecution

has also placed on record receipt exhibit 3 showing that the seized

muddemal was handed over to the muddemal clerk and letter

addressed to Chemical Analyser shows that all muddemal properties

were in sealed condition and therefore they were accepted by

Chemical Analyser. In our considered view, there is suffcient

evidence on record to show that the muddemal articles which were

seized from the spot as well as at the police station were duly

preserved free from tampering.

19. It is also sought to be argued that from evidence of

panch witness as well as brother of appellant, a possibility is created

that any one can enter into the house of deceased from terrace and

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since the articles in the house were found scattered and hence

murder could have occurred in an attempt to theft. The evidence on

record however, does not support the said theory in any manner

whatsoever. Though articles in the house are said to be scattered,

there is no complaint about any articles being stolen from house.

Most importantly, the ornaments on person of deceased were intact,

as it can be seen from inquest panchanama. Thus, this is not a case

where it can be said that for theft murder is committed.

20. Post Mortem notes show that deceased sustained 6

incised injuries. The number of injuries and manner in which

deceased is assaulted also suffciently demonstrates the intention of

assailant. Thus, there is no reason to accept submission that

murder could have taken place in assault by someone else, who

entered home for committing theft. Moreover, there is no other

evidence to support that anyone else could have entered the house of

appellant and deceased. It is trite law that an accused would be

entitled to get beneft of reasonable doubt and not any created doubt,

if not reasonable. The appellant, therefore, is not entitled for

acquittal on this ground.

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21. According to defence, prosecution has failed to prove

motive for accused to kill his wife. Needless to say that motive is

always hidden into the mind and there can be hardly any direct

evidence of the same. Herein this case, however, there is testimony of

Shivanath (PW 8), father of deceased, who deposed that appellant

used to beat deceased under infuence of liquor. Though he admits

that there is no previous complaint about the same, considering

relationship of husband and wife, non lodging of complaint to police

would not be suffcient to discard his evidence. At least this evidence

indicates the strained relationship between husband and wife.

22. The evidence on record conclusively establishes that

deceased died in the four walls of house. The defence of alibi of

appellant is not established for want of proof thereof. The burden

therefore lies on appellant to explain the circumstances in which his

wife died. In absence of any explanation, the burden contemplated

under Section 100 of the Evidence Act cannot be said to be

discharged by the appellant. Evidence on record leaves no room for

doubt that it is appellant who has committed murder of wife and the

possibility of the same could have been done by someone else is

completely ruled out.

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23. Having regard to evidence and over all circumstances on

record, it must be held that prosecution has proved guilt of appellant

beyond doubt. We, therefore, fnd no reason to cause interference in

impugned judgment of conviction. Resultantly, appeal stands

dismissed.

( R. M. JOSHI )                                     ( R. G. AVACHAT )
     Judge                                               Judge

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