Bombay High Court
Gajanan S/O Hanumantu Chincholkar vs The State Of Maharashtra on 4 January, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:296-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 350 OF 2018
Gajanan Hanumantu Chincholkar
Age: 31 years, Occu.: Labourer,
R/o Vitthalwadi, Village Bodhadi (Bk.),
Tq. Kinvat, Dist. Nanded ..APPELLANT
VERSUS
State of Maharashtra
Through Police Station Kinvat,
Tq. Kinvat, Dist. Nanded ..RESPONDENT
....
Mr. R.S. Deshmukkh, Senior Advocate a/w Mr. Rajat Untwal, Advocate i/b
Mr. V.A. Chavan, Advocate for appellant
Ms. V.S. Chaudhari, A.P.P. for respondent - State
....
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ
DATE : 04th JANUARY, 2024
ORAL JUDGMENT ( PER : R.G. AVACHAT, J. ) :
1. This is an appeal against conviction. Vide order dated 16 th
January, 2018, the appellant has been convicted for offence punishable under
Section 302 of the Indian Penal Code ('I.P.C.') and therefore, sentenced to
suffer life imprisonment and fine with default stipulation.
2. The facts, leading to the present case are as follows :-
The First Information Report ('F.I.R.') (Exh.14) was lodged by
brother of deceased - Aarti on 14 th June, 2016. According to him, Aarti
married the appellant in the year 2008. The couple was blessed with three
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sons - Shridhar, Swami and Rudra. The appellant would do labour work to
earn his living. For about two years next before the incident, there used to be
frequent quarrels between the appellant and his wife (deceased). It is further
his case that on 13th June, 2016 a quarrel ensued between the two. He
reasoned with the appellant. The appellant committed murder of Aarti on
the intervening night of 13th and 14th June, 2016.
3. Based on the F.I.R., Crime No. 111 of 2016 (Exh.14) came to be
registered with Kinvat Police Station for the offence punishable under Section
302 of the I.P.C. P.W.10-Arun Jagtap, Police Inspector, Police Station Kinvat
did investigation of the crime. He paid visit to the house of the appellant.
Scene of offence panchanama (P.W. 18) was drawn. The dead body of the
deceased was subjected to postmortem. P.W.9 - Dr. Quadri conducted the
postmortem examination. Postmortem report is at Exh.35. The appellant was
arrested. Pursuant to the disclosure statement made by the appellant, a piece
of cloth (dasti) came to be recovered. Statements of persons acquainted with
the facts and circumstances of the case were recorded.
4. On completion of investigation, the appellant was proceeded
against by filing charge-sheet. The case was committed to the Court of
Session. The trial Court framed charge (Exh.6). The appellant pleaded not
guilty. His defence was of denial.
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5. To bring home the charge, prosecution examined ten witnesses
and produced in evidence certain documents such as postmortem report,
scene of offence panchanama, inquest, etc.
6. We have heard learned senior counsel for the appellant and
learned A.P.P. for State. According to learned senior counsel, the case is
based on so called single eye witness account i.e. P.W.7 - Shridhar, son of the
appellant and deceased. Shridhar was eight years of age at the relevant time.
He, being a child witness, must have been prone to tutoring. His statement
has been recorded by P.W.10 - Investigating Officer about sixty days after the
incident. Our attention has been adverted to cross-examination of Shridhar
to indicate that he was under influence of relations of his mother. Learned
senior counsel would further submit that though it is the case of prosecution
that there used to be frequent quarrels between the deceased and the
appellant, admittedly, the deceased had never been to the police station for
making a complaint against the appellant. Same suggests the couple had
happy married life. There is evidence to indicate the appellant used to stay
away for 2 to 8 days for work to earn his living. The house of the appellant is
situated in a populated area. Statements of neighbors have not been
recorded. According to him, even the appellant has not come with any
explanation or with some positive evidence as to where he was on the fateful
night, the burden of proof on the prosecution does not get lessen. According
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to him, house of the appellant was located at ghat section. There is every
possibility of the offence to have been committed by someone else. He
ultimately urged for allowing the appeal.
7. Learned A.P.P. would, on the other hand, submit that on the
fateful night the deceased was in the company of the appellant. It is,
therefore, for him to come clean as to what had happened with his wife. The
appellant has not come with defence to have had required to leave the village
for urgent work, and therefore, the deceased and the minor children were the
only persons in the house overnight. She, therefore, urged for dismissal of
the appeal.
8. We have considered the submissions advanced and appreciated
the evidence on record.
9. Admittedly, the deceased died of homicidal death. Postmortem
report (Exh. 35) indicates the deceased died of asphyxia due to compression
of neck (throttling). Admittedly, the deceased alongwith her husband
(appellant) and three children was residing at village Bodhadi (Bk.), Tq.
Kinvat. Her parental house was also in the same village. The F.I.R. (Exh.14)
has been lodged by brother of the deceased, P.W.1 - Chandar. It is in his
evidence that deceased - Aarti was his younger sister. She had married the
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appellant in 2008. The couple was blessed with three sons. The appellant
would do labour work at the very village to earn his living. There used to be
frequent quarrels between the appellant and the deceased during last two
years of the incident. He had reasoned with the appellant many a time. It is
further in his evidence that in the evening of 13 th June, 2016 a quarrel took
place between the two. On the following morning he went to the appellants
residence in response to a call by son of the deceased. He saw the dead body
of his sister on a wooden cot. He immediately lodged the F.I.R. with Kinvat
Police Station.
10. During his cross-examination, it has come on record that the
deceased had never lodged any police report against the appellant. The
house of the appellant is near ghat section. He (P.W.1) owned a tractor. The
appellant would do labour work with him sometimes. P.W.1 admitted that
the appellant used to go out of village for labour work for 2 to 8 days. The
room in which the appellant would reside alongwith his family admeasures 8
x 10 ft. The witness was confronted with the F.I.R. (Exh.14) so as to bring on
record certain omission amounting to contradiction. The F.I.R. is silent as
regards witness to have had convinced the appellant in the evening of 13 th
June, 2016. He, however denied the appellant was not present in the village.
It does indicate the appellant to have had no happy married life. P.W.2 -
Kishan is a witness to the inquest panchanama (Exh.17) and the scene of
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offence panchanama (Exh.18). We do not propose to advert to his evidence
in extenso, since it has little relevance for deciding the present appeal. P.W.7
- Shridhar is the son of the appellant. He was eight years of age in those
days. It is in his evidence that the appellant strangled his mother with a
dasti. He also gave her fist blows. When he raised shouts, the appellant
pressed his mouth and ran away.
11. During cross-examination, he has admitted that almost all the
times he used to reside at the house of his maternal uncle (P.W.1 - Chandar).
He has affection towards his maternal uncle and maternal grand-mother. He,
however denied that on the fateful night he was at the house of his maternal
uncle. Both, P.W.1 and mother of the deceased were with him when his
statement was recorded by police. He too was confronted with his statement
to the police. His statement is silent to mention therein that he raised shouts
and thereupon the appellant pressed his mouth.
12. P.W.3 - Prakash and P.W.4 - Syed are witnesses to the disclosure
statement made by the appellant pursuant to which dasti came to be
recovered. We do not propose to refer to their evidence in extenso for the
reason that there is no evidence with regard to recovery of said dasti with the
crime in question. In short, there is nothing to suggest that with the very
dasti the appellant strangled the deceased.
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13. P.W.5 - Chandrabhan is the resident of the very village. It is in his
evidence that on 13th June, 2016 the appellant met him at the bus stand. It
was about 09:00 p.m. The appellant told him that there was quarrel between
him and his wife and therefore, he wanted to go to Kinvat. He convinced him
and thereupon the appellant went back to his house. On the following day he
learnt that the appellant committed murder of his wife.
14. Cross-examination of this witness indicates that he is the cousin of
the informant. His statement to the police is silent about he having convinced
the appellant by 09:00 p.m. on 13 th June, 2016 and thereafter the appellant
went back to his residence. P.W.6 - Madhav is a Police Constable, who
recorded statement of Shridhar. P.W.8 - Bhavna is a social worker, in whose
presence statement of Shridhar was recorded.
15. We are not inclined to rely on evidence of P.W.7 - Shridhar. He
was eight years old at the relevant time. His statement has been recorded by
the investigating officer about sixty days after the incident. His evidence
would further indicate that he used to reside at her maternal uncle's house
many a time. Possibility of he having been tutored by the informant and his
family members to speak against the appellant cannot be ruled out. He was
the cousin of the deceased. It was suggested to the investigating officer and
even to P.W.1 that the appellant was not at home at the relevant time. Both
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these witnesses have flatly denied the same. It is also true that no person
from the neighborhood of the appellant is examined as prosecution witness.
16. The Apex Court in case of Trimukh Maroti Kirkan Vs. State of
Maharashtra, (2006) 10 SCC 681 observed thus -
"12. In the case in hand there is no eye-witness of the
occurrence and the case of the prosecution rests on circumstantial
evidence. The normal principle in a case based on circumstantial
evidence is that the circumstances from which an inference of
guilt is sought to be drawn must be cogently and firmly
established; that those circumstances should be of a definite
tendency unerringly pointing towards the guilt of the accused;
that the circumstances taken cumulatively should form a chain so
complete that there is no escape from the conclusion that within
all human probability the crime was committed by the accused
and they should be incapable of explanation on any hypothesis
other than that of the guilt of the accused and inconsistent with
his innocence.
13. ...
14. If an offence takes place inside the privacy of a house
and in such circumstances where the 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. Both
are public duties. (See Stirland v. Director of Public Prosecution
1944 AC 315 # quoted with approval by Arijit Pasayat, J. in State
of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not
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enjoin a duty on the prosecution to lead evidence of such
character which is almost impossible to be led or at any rate
extremely difficult to be led. The duty on the prosecution is to
lead such evidence which it is capable of leading, having regard to
the facts and circumstances of the case. Here it is necessary to
keep in mind Section 106 of the Evidence Act which says that
when any fact is especially within the knowledge of any person,
the burden of proving that fact is upon him. Illustration (b)
appended to this section throws some light on the content and
scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The
burden of proving that he had a ticket is on him."
15. 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.
16. A somewhat similar question was examined by this
Court in connection with Section 167 and 178-A of the Sea
Customs Act in Collector of Customs, Madras & Ors. v. D.
Bhoormull AIR 1974 SC 859 and it will be apt to reproduce paras
30 to 32 of the reports which are as under :
30. ....
31. The other cardinal principle having an important
bearing on the incidence of burden of proof is that
sufficiency and weight of the evidence is to be considered
- to use the words of Lord Mansfield in Blatch v. Archer
(1774) 1 Cowp. 63 at p.65 "according to the proof which
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it was in the power of one side to prove, and in the
power of the other to have contradicted". Since it is
exceedingly difficult, if not absolutely impossible for the
prosecution to prove facts which are especially within the
knowledge of the opponent or the accused, it is not
obliged to prove them as part of its primary burden.
32. ....
20. In Ram Gulam Chaudhary & Ors. v. Sate of Bihar
(2001) 8 SCC 311, the accused after brutally assaulting a boy
carried him away and thereafter the boy was not seen alive nor his
body was found. The accused, however, offered no explanation as
to what they did after they took away the boy. It was held that for
the absence of any explanation from the side of the accused about
the boy, there was every justification for drawing an inference that
they have murdered the boy. It was further observed that even
though Section 106 of the Evidence Act may not be intended to
relieve the prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt, but the section would apply to
cases like the present, where the prosecution has succeeded in
proving facts from which a reasonable inference can be drawn
regarding death. The accused by virtue of their special knowledge
must offer an explanation which might lead the Court to draw a
different inference.
21. In a case based on circumstantial evidence where no
eye- witness account is available, there is another principle of law
which must be kept in mind. The principle is that when an
incriminating circumstance is put to the accused and the said
accused either offers no explanation or offers an explanation
which is found to be untrue, then the same becomes an additional
link in the chain of circumstances to make it complete. This view
has been taken in a catena of decisions of this Court. [See State of
Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P.
v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State
of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal
v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab
Chand v. State of M.P. (1995) 3 SCC 574 (para 4)].
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22. Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in leading
evidence to show that shortly before the commission of crime they
were seen together or the offence takes placed in the dwelling
home where the husband also normally resided, it has been
consistently held that if the accused does not offer any explanation
how the wife received injuries or offers an explanation which is
found to be false, it is a strong circumstance which indicates that
he is responsible for commission of the crime."
17. We find P.W.1 - Chandar to have no reason to falsely implicate the
appellant. He lodged the F.I.R. within hours of the incident. It is his specific
case that some hours before his sister was killed, there was quarrel between
the appellant and the deceased. Same indicates that the appellant was at
village, and moreso at his house as well. Evidence of P.W.5 - Chandrabhan
also indicate appellant was in the village. The house of the appellant is in the
nature of tin shed, admeasuring 8 x 10 ft. No other major male member was
residing alongwith the couple. Necessarily, the deceased being wife of the
appellant was with him some hours before she met with the homicidal death.
She died in the house wherein she was residing with the appellant and three
minor children. Evidence on record indicates the appellant to have been at
his residence some hours before his wife met with homicidal death. It was
for him to adduce some evidence to indicate where he was at the relevant
time. His statement recorded under Section 313 of Code of Criminal
Procedure is only in the form of denial of prosecution evidence. When the
deceased died with homicidal death in the house of the appellant, when he
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was in her company within hours before she breathed her last and there
being no attempt on the part of the appellant to produce any evidence to
suggest he left company of the deceased or even left the village for some
emergent work and thereafter the incident took place, lead us to an
inescapable conclusion that in all probabilities it is the appellant and none
other, who has strangled his wife.
18. In view of above, we do not find any reason to interfere with the
impugned order of conviction and consequential sentence. The appeal,
therefore, fails. Same is dismissed.
( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. )
SSD
