Bombay High Court
Mahalapa Babu Bandichode And Others vs The State Of Maharashtra on 25 September, 2024
Author: R.G.Avachat
Bench: R.G.Avachat
2024:BHC-AUG:23109-DB
Cri Appeal No.142 of 2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.142 OF 2022
1. Mahalappa Babu Bandichode,
Age:39 years, Occ. Agri.,
2. Babu Mahalappa Bandichode,
Age:69 years, Occ.Agri.,
3. Dagdu Babu Bandichode,
Age:41 years, Occ. Agri.,
All r/o. Belamb, Tq. Omerga,
Dist. Osmanabad ..Appellants
Vs.
The State of Maharashtra,
Through Investigating Officer,
Murum Police Station,
Tq. Omerga, Dist. Osmanabad ..Respondents
----
Mr.Shailendra S. Gangakhedkar, Advocate for appellants
Mr.S.D.Ghayal, Addl. Public Prosecutor for respondent
Mr.Sandeep B. Rajebhosale, Advocate assisting the P.P. (absent)
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : AUGUST 27, 2024
PRONOUNCED ON : SEPTEMBER 25, 2024
JUDGMENT (Per R.G.Avachat, J.) :
-
A father and his two sons have preferred this appeal
against the judgment and order of conviction dated 04.02.2022,
passed against them by learned Addl. Sessions Judge, Omerga in
Sessions Case No.24 of 2013. Vide the impugned judgment and
order, the appellants have been convicted for the offence punishable
under Section 302 read with Section 34 of Indian Penal Code and
therefore, sentenced to suffer imprisonment for life and to pay fine
of Rs.500/- each, with default stipulation.
2. Appellant no.2 (A2) is father of appellant nos.1 and 3 (A1
and A3). The wives of appellant nos.2 and 3 were also prosecuted
along with them for the same offence, besides the offence under
Section 498-A read with Section 34 of Indian Penal Code. All of them
have been acquitted of the charge of offence under Section 498-A
read with Section 34 of Indian Penal Code. Those two additional
accused have also been acquitted of the charge of murder. Neither
the State nor any of the next of kin (victim) of the deceased
preferred appeal against acquittal.
3. It was a case of murder of wife of appellant no.1 -
Mahalappa by giving her electric shocks, on the intervening night of
27th and 28th March, 2012, at her matrimonial home, at village
Belamb, Tq.Omerga, Dist. Osmanabad.
4. The case of prosecution, before the trial court, was as
under:-
Sujata (deceased) married Mahalappa (A1) in 2004. On
marriage, she started residing at her matrimonial home. All was not
well between her on one hand and the appellants and other female
in-laws, on the other. She had asked for partition of her husband's
share in the ancestral agricultural land. She was even assaulted by
her father-in-law - Babu (A2) with service-wire a few days prior to the
incident. She had, therefore, started residing separately in one of
the rooms of the house comprising five rooms. On the intervening
night of 27th and 28th March, 2012, the appellants and the acquitted
accused committed her murder with giving her electric shocks and
she succumbed thereto.
5. On the other hand, it was the case of A1 that he along
with his brother A3 were in their field overnight. On their return
home early in the morning, they realised Sujata to have suffered
electric shock of table-fan wire. He made an oral report (Exh.65) to
the police about unnatural death. Based on his say, an unnatural
death case was registered.
6. PW 9 - Anandrao, then A.P.I. attached to Murum Police
Station, rushed to the house of the appellants. He drew spot
panchnama (Exh.25) and inquest (Exh.66) as well. He sent the
mortal remains of Sujata for autopsy. PW 7 - Dr. Amrapali conducted
the same. The post mortem examination report (Exh.52) suggests
Sujata died of `cardio-respiratory arrest due to electric shock'. When
the parents and brother of deceased Sujata visited her matrimonial
home, they noticed burn marks on her body. Blood was oozing from
one of her eyes and mouth. They realised it to be not the case of
unnatural death. Suresh (since deceased), father of Sujata, lodged
the FIR (Exh.64), alleging that the appellants and the wives of
appellant nos.2 and 3 harassed and illtreated and ultimately,
committed murder of his daughter Sujata.
7. A crime, vide C.R. No.44 of 2012 was registered at
Murum Police Station, for the offences punishable under Sections
302 and 498-A of Indian Penal Code. The appellants and mother-in-
law and sisters-in-law of Sujata were arrested. A3 - Dagdu made
disclosure statement, pursuant to which two pillows and one electric
wire came to be seized. The clothes on the person of the deceased
were seized. During spot panchnama, some articles were taken
charge of. The blood stains on the floor were collected with cotton
swab. The blood samples of the appellants and deceased Sujata
were obtained for ascertaining the blood group. C.A. reports in that
regard were received. The statements of the persons acquainted
with the facts and circumstances of the case were recorded. On
completion of investigation, charge sheet was filed. The trial court
framed Charge (Exh.9). The appellants pleaded not guilty. Their
defence was Sujata to have died of electric shock suffered
accidentally. On appreciation of the evidence in the case, the trial
court convicted the appellants and consequently sentenced, as
stated above.
8. Heard learned counsel for the parties. Learned counsel
for the appellants made oral submissions and also placed on record
written notes of arguments along with a bunch of authorities/
citations. According to him, the case was based on circumstantial
evidence. He would further submit that the circumstances relied on
have not been proved upto the hilt. He would further submit that the
prosecution has failed to prove Sujata to have met with homicidal
death. He would further submit that in view of acquittal of the
appellants of the offence under Section 498-A of Indian Penal Code,
the motive for commission of the alleged offence came to be
disproved. According to him, there is not a single witness to indicate
A1 and A3 to have been at their home that too, in the company of
the deceased on the intervening night of 27th and 28th March, 2012.
He would further submit that A1 immediately approached the police
station and gave a statement. The Police Head Constable, who
made enquiry into the the unnatural death case, has not been
examined. He was made to wait for long and thereafter, his
statement was recorded. On the question of the disclosure statement
made by A3 - Dagdu, learned counsel would submit that the pillows
had already been found while the spot panchnama (Exh.25) was
drawn. The electric wife seized pursuant to the disclosure statement
was not sent to C.A. to find whether there were blood stains on it or
human tissues were found thereon. He would further submit that the
Medical Officer gave the cause of death as electric shock. She could
not locate the entry and exit point of the electric shock. Her report
in that regard was adverted to. Relying on the authorities, learned
counsel would submit that the burden to prove the charge beyond
reasonable doubt is on the prosecution throughout the trial. Unless
the appellants are shown to have been in the company of the
deceased soon before she met with homicidal death, they could not
be called upon to explain the circumstances in which the deceased
met with death. According to him, it would nothing but the reverse
burden.
9. Learned counsel for the appellants would further submit
that the time gap between the post mortem examination and the
shouts emanating from the house of the appellants heard by PW 8 -
Anuja, was more than 12.00 hours. It creates suspicion about the
testimony of PW 8 - Anuja, neighbour of appellants. Admittedly, the
table-fan was found lying nearby the dead body of Sujata. One end
of wire of the fan and other end thereof at the switch board, both
had turned black due to burning. Same indicates that the wire of
table fan was burst. There was report of the Electrical Inspector
indicating that electric supply was in order and there was no outage
on the fateful night. He would further submit that no opinion of the
expert namely, Electrical Inspector has been obtained, as to whether
the deceased could have suffered such injuries due to electric shock.
He would submit that the ornaments of the deceased were intact on
her person. No injury thereby she could suffer. According to learned
counsel, all in all, the prosecution has failed to bring home the
charge beyond reasonable doubt. Not a single circumstance relied
on, has been conclusively proved. He would submit that the demand
of the deceased for partition of land was not of her benefit because
she did not have any right, title and interest in the family property.
Whatever would have been given in partition was that of her
husband and none else. Learned counsel would, therefore, urge for
allowing the appeal. The authorities relied on by learned counsel for
the appellants are as follows :-
Sr. Citation Relevant para Page
No. No.
1. AIR 1991 SC 1388 8, 9 and 12 1-8
Jaharlal Das Vs. State of Orissa
2. 2006 AIR SCW 1053 10, 12 and 14 9-12
P. Mani Vs. State of T.N.
3. (2009) 12 SCC 588 13-14
(Sohel Mehaboob Shaikh Vs. State of 5 to 7
Maharashtra)
4. 2015(3)Bom.C.R. (Cri.) 609 12 to 16 15-19
(Suresh Vithal Parkar Vs. State of
Maharashtra)
5. 2016 DGLS (Bom.) 40 6 to 12 20-23
Sunil Latari Khuje Vs. State of
Maharashtra
6. Criminal Appeal No.512 of 2017 6 to 9 24-31
Mr.Ulhas Sudam Gorhe Vs. State of
Maharashtra
7. 2021 DGLS (SC) 120 21, 26, 32, 35 32-38
Banabihari Mohapatra and ors. Vs. to 39
State of Odisha
8. AIR Online 2021 SC 97 17, 18, 22, 23, 39-45
Shivaji Chintappa Patil Vs. 27, 30, 34
State of Maharashtra
9. AIROnline 2021 SK 40 9, 11, 16 46-62
Santosh Kumar Pandey Vs. State of
Sikkim
10. (2023)1 SCC 83 17 and 30, 39 63-90
Rahul VS. State of Delhi and ors. to 43, 45
10. Learned APP would, on the other hand, submit that the
spot panchnama (Exh.25) and the inquest panchnama (Exh.66)
indicate the deceased to have suffered ten electric burn injuries.
Had she really suffered electric shock, she would have suffered not
more than one injury. Her body would have turned blacken. The
blood was seen oozing from her eye and mouth as well. There were
blood stains on the floor of the room. According to learned APP, the
offence took place in the matrimonial home of the deceased. There,
therefore, could not be independent witness. Relying on the
judgment in the case of Trimukh Maroti Kirkan Vs. State of
Maharashtra, (2006)10 SCC 681, he would submit that it was for
the appellants to come clean. PW 8 - Anuja was an independent
witness. Her evidence and the evidence of the deceased's mother
and brother would indicate that all was not well between Sujata on
one hand and the appellants on the other.
11. Learned APP would further submit that a day before the
incident, Sujata had been to the residence of her sister. Sujata had
made phone call to her brother (PW 5 - Satish), informing the
appellants to have been threatening to commit her murder. It is only
on his (PW 5 - Satish) request, she had returned to her matrimonial
home. On the following day, the threat proved true. Learned APP
would further submit that when the appellants were in the know of
the deceased to have suffered electric shock, there is nothing to
indicate any efforts to have been made by them to rush Sujata to
hospital or nearest medical clinic nor was there any evidence to
indicate a Doctor was summoned to examine her. Same speaks in
volumes. According to him, the prosecution could produce in
evidence, which it could gather; rest of the things were within the
knowledge of the appellants. When the daughter-in-law met with
homicidal death at her matrimonial home, it is for the husband and
the in-laws to come clean, else face the consequences. According to
learned APP, the trial court, relying on Section 106 of the Evidence
Act and the evidence on record, has rightly convicted the appellants.
He, therefore, urged for dismissal of the appeal.
12. Considered the submissions advanced. Perused the
evidence on record and the judgment impugned herein.
13. The prosecution case stated above in paragraph 4 is
almost not in dispute. We, therefore, propose not to reiterate the
same. Let us, now, turn to the evidence on record and appreciate
the same. A bit repetition is, however, bound to occur. Admittedly,
Sujata married A1 - Mahalappa in the year 2004. After one and half
years of marriage, they both shifted to Pune. He took a premises on
rent in the nearby of the house of Amol, at Bhosari. After 4-5
months, Sujata joined him in Pune and started residing with him.
Dagdu (A3) visited Pune after first month's service was completed by
A1. A1 brought a cellphone for his brother A3. Sujata did not like
the same. It was her case that A1's salary was meager to make both
ends meet. She, therefore, started running a mess. It appears that
her in-laws did not like the same. Both A2 - Babu and A3 - Dagdu
visited their house in Pune and asked them to come back to the
village. In the meanwhile, Sujata had conceived and delivered a
baby boy (Sanket).
14. After some days, again, both A2 and A3 visited Pune and
started packing the household articles, so as to get A1 - Mahalappa
and and Sujata back to the village. As it would have been midway of
the academic year of Sanket (son of deceased and A1), both A2 and
A3 brought Mahalappa (A1) back to the village. As such, Sujata and
her son remained at Pune. For Mahalaxmi festival, Satish (PW 5)
took them to his parental house at village AshtaKasar. Again, A2 and
A3 along with some of the villagers visited the parental house of
Sujata to get her back to her matrimonial home. She asked them to
pay for the rent of the room at Pune and the school fees of her child.
Since no money was paid to her, she sold some furniture and T.V. set.
Her in-laws disliked the same. For few days, she stayed at the house
of her brother Amol and then came back to her parental house at
village Ashta-Kasar. Again, a meeting took place between the
parents of Sujata, her in-laws and some of the villagers. Sujata's
father agreed to send her back to the matrimonial home as her in-
laws promised to treat her well. It was also case of Sujata that a plot
was purchased at Pune by A2 in the name of A3. She wanted to
have it purchased in the name of her husband. She was, therefore,
annoyed. At her matrimonial home, quarrel was the everyday
feature between her one hand and her in laws and husband, on the
other.
15. A2 (Sujata's father-in-law), once, assaulted her with
service-wire. It was about a month before the fateful day. She,
therefore, started residing separately in one of the rooms at her
matrimonial home. She would cook separately as well. The reason
behind the quarrel was Sujata's demand for separation of her
husband's share in the agricultural land. On the fateful night, the
appellants gave her electric shocks. She succumbed thereto. On the
early morning of 28.03.2012, A2 informed Sujata's mother (PW 4 -
Mangalbai) Sujata to have been serious due to electric shock
suffered accidentally. The father of Sujata was in Pune. He too was
informed. All of them came to the house of the appellants at
Belamb.
16. It is true that before resumption of cohabitation, a
meeting was held at the house of Varnale-Savkar, at village Belamb.
Varnale-Savkar has not been examined. Resumption of cohabitation
at the request of the appellants, is a fact not in dispute. It is also
true, one Mashak Shaikh was not examined, who claimed to have
learnt Sujata died of electric shock. His non-examination also would
not be fatal for the prosecution, if the evidence on record was found
to be sufficient to make out the charge. The prosecution case, as
stated herein above, also has been reiterated by PW 4 - Mangalbai
and PW 5 - Satish (mother and brother of Sujata). The questions put
to both of them in cross-examination go a long way to indicate that
Sujata along with A1 had shifted to Pune after one and half years of
marriage. She delivered a baby boy there. He was admitted in an
English medium school. To make both ends meet, she had started
running a mess. It appears that A2 and A3 disliked the same. They
had come to Pune to get both A1 and Sujata back to the village along
with their child. Sujata refused, as it would have been mid-academic
return. She had asked the in-laws (A2 and A3) to pay for the rent of
the room and the school fees of her child. She was annoyed with her
husband as he (A1) had purchased a cellphone for his brother (A3).
She was also annoyed as a plot was purchased by A2 in the name of
A3 - Dagdu, at Pune, and not in the name of her husband (A1). The
evidence also indicates that A2 and A3 brought A1 back to the
village, leaving Sujata and her child at Pune. She, therefore, went to
her father's house at village Ashta-Kasar. She resumed the marital
tie after a meeting was held, wherein, the appellants promised to
treat her well. It appears that Sujata was quarrelsome. She was
asking for partition of share of her husband in the family property.
There, therefore, used to be frequent quarrels between her on one
hand and the appellants, on the other.
17. PW 5 - Satish testified that Sujata had related him that
her father-in-law, once, had assaulted her with service-wire. Since
then, she had started residing separately in one of the rooms of the
house. She would cook separately as well. True, this fact has not
been stated by Sujata's mother. We have to see the quality of
evidence and not the quantity. Whatever was stated by the deceased
about her illtreatment, leading to the incident to be very much
admissible in the evidence in view of Section 32(1) of the Evidence
Act, as circumstances of the transaction which resulted in her death.
We do not dwell at length, on the evidence of the mother and brother
of the deceased, since the case is based on the circumstantial
evidence. Their evidence further indicates that all was not well and
Sujata was not dealt with properly by the appellants at her
matrimonial home. The FIR was lodged by her father Suresh. He
died before the trial commenced. The FIR (Exh.64), therefore, came
to be admitted in evidence based on the evidence of PW 9 -
Anandrao, who had recorded the same on the say of the deceased
Suresh.
18. Now, let us turn to the circumstances the prosecution
relied on to bring home the charge. The circumstances are: (i)
illtreatment of the deceased and motive; (ii) homicidal death; and
(iii) conduct of the appellants inconsistent with their innocence.
Illtreatment of deceased and motive:
19. Both these points have been addressed herein above
itself. It is not known as to why, the appellants and female members
(acquitted) were charged with offence under Section 498-A of Indian
Penal Code when the ingredients thereof could not be attracted. The
prosecution case was that when A1 had joined service at Pune and
started earning salary and Sujata would earn by running a mess, the
in-laws (A2 and A3) had asked them to pay them some money.
Same could not have been termed to be unlawful demand. Be that
as it may. The fact remains that the appellants have already been
acquitted of the offence under Section 498-A of Indian Penal Code.
By such acquittal, the motive behind the offence did not vanish. The
Evidence of PW 5 - Satish has already been referred to, to indicate
that a month before the incident, A2, father-in-law had assaulted
Sujata with service-wire and therefore, she had started residing
separately in one of the rooms of the very house. The fact that she
had stayed at her parental house for long and on assurance of the in-
laws to treat her well, she resumed cohabitation, goes a long way to
infer that she was not dealt with properly at her matrimonial home.
On the previous day of the incident, she had visited the house of her
sister. True, she has not been examined; but we have evidence of
PW 5 - Satish to indicate that Sujata had telephoned from her sister's
residence, informing him the appellants to have been extending her
threats of dire consequences. It is only on her request, she returned
to her matrimonial house and met with death on the following night.
Homicidal Death:-
20. Based on the oral report made by A1, an unnatural death
case was registered. It was PW 9 (Investigating Officer), who
immediately paid visit to the house of the appellants. The spot
panchnama (Exh.25) was drawn in the presence of PW 1 -
Nandkumar. The evidence of this witness and reference to the spot
panchnama by learned counsel for the appellants indicate that the
dead body of Sujata was lying on the floor in one of the rooms in the
house comprising of five rooms. It was necessarily a room exclusively
occupied by her husband and their child. Pillows and bed-sheet on
the bed were not in order. The table fan was lying by the side of the
dead body. One end of the electric wire of the table fan had turned
blacken due to burning/bursting, while the other end of the table fan
wire connected in the switch board, had also turned blacken due to
burning/bursting. Learned counsel for the appellants meant to say
that this piece of evidence would go a long way to indicate Sujata to
have suffered shock, accidentally. In our view, it might be a creation
of evidence to deflect the attention. PW 1 - Nandkumar noticed the
switch board with buttons in the very room. He had noticed that
blood had oozed from her eye and mouth. There were blood spots
on the floor. PW 9 - Anandrao collected the same with cotton swabs.
C.A. reports on record (Exhs.26 to 28) indicate that the blood on the
cotton swabs was human blood. The blood grouping thereof could
not be made.
21. Learned counsel for the appellants would submit that the
spot panchnama was drawn during 9:25 am. and 10:30 am. In our
view, no doubt about the timing could be raised since there is
statement given by A1 (Exh.65), based on which the station diary
entry no.88/2012 was registered of a case under Section 174 of the
Code of Criminal Procedure at little past 9:00 in the morning. True,
the police head constable, who recorded and made enquiry into
unnatural death has not been examined. We will turn to the said
aspect little later.
22. The fact remains that no sooner the station entry no.88
of 2012 was registered, the spot panchnama was drawn. It is
reiterated that the spot panchnama and the evidence of PW 1 -
Nandkumar indicate that there were blood stains on the floor of the
room. The blood was oozing from the eye and mouth of the
deceased. It is true that the mother of the deceased (PW 4) testified
to have noticed mud to have been applied to the throat of the
deceased. Same is not reflected in the spot panchnama or on the
person of the deceased. The said statement was also missing in her
(PW 4 - Mangalbai) police statement.
23. PW 2 - Dattu was witness to the seizure of clothes of the
deceased and the disclosure statement made by A3 - Dagdu,
pursuant to which one electric wire and two pillows came to be
seized from behind the food grain bag and on the bed, respectively.
This witness did not stand by the prosecution. Although this fact has
been reiterated by the Investigating Officer (PW 9), we find the same
to have no relevance, since the pillows were there when the spot
panchnama (Exh.25) was drawn and the wire seized pursuant to the
alleged disclosure statement, was not sent to the Chemical Analyst,
to find whether there were blood stains or human tissues thereon. It,
therefore, cannot be said that the very wire was used for giving
Sujata electric shocks.
24. Learned counsel for the appellants referred to the
disclosure statement made by A3 - Dagdu. According to him, if the
same is accepted as it is, it will improbabalise the prosecution case.
He would further submit that no blood was noticed on the pillows.
The person giving electric shock would have suffered the same. The
kit-kat switch from which electric current was obtained for giving
shock to the deceased, was not seized nor the same was found at
the crime scene.
25. According to us, the incident took place at dead of the
night. No third person was present in the house. It would, therefore,
be anybody's guess, in what way the deceased was given electric
shocks. The disclosure statement given by A3 - Dagdu, which is in
inculpatory form, would be inadmissible in evidence. Same too has
been discarded as not relevant under Section 27 of the Evidence for
the reasons given immediately herein before.
26. PW 7 - Dr. Amrapali was Medical Officer at Primary
Health Centre, at Aloor, Tq. Omerga, Dist. Osmanabad. She went to
the Rural Hospital, Murum, for conducting autopsy on the mortal
remains of Sujata. Her evidence indicates that autopsy was
conducted between 3:30 p.m. and 5:16 p.m. on 28.08.2012. She
noticed following injuries on the person of Sujata:-
1. Red black coloured patch around 7x4 cm. on left cheek of
face (superficial burn)
2. Red black coloured patch around 6x5 cm. with smaller
3-4 patches on right side of cheek of size 1x1.5 cm.
3. Multiple patches around 1x0.5 cm. on left side of face
near angle of mouth.
4. Brown coloured patch of 2x1 cm. over anterior chest
exactly in the middle between the breast.
5. Multiple red black coloured patches present on right arm,
elbow, and dorsum of wrist of variable dimension.
6. Red black coloured patches present on right side of
buttock of variable dimensions.
7. Red black coloured patch around 6x0.5 cm. on right
groin.
8. Diffuse red black coloured patch on mucosal
surface of upper and lower lip.
9. Diffuse multiple red black colour patches on
dorsum of left hand.
10. Small red black patch on anterolelateral lateral aspect
of left upper thigh and on dorsal aspect of left great
toe of 2x2 mm.
Those injuries are mentioned in paragraph 17 of the postmortem
report are superficial electric burn.
In her opinion, the cause of death was cardio-respiratory arrest due
to electric shock. She further testified that the aforesaid injuries
might be caused if electric shock is given. According to her, these
injuries were sufficient to cause death in the ordinary course of
nature.
27. The cross-examination of PW 7 - Dr.Amrapali is general in
nature. Same is like a literature in respect of suffering electric shock
and consequences thereof. She was confronted with letter (Exh.53),
wherein it has been recorded that the death had occurred
approximately within 10-12 hours immediately before beginning of
the post mortem examination. Such period takes us back to the time
between 01.00 am. and 3.00 am on 28.03.2012. She had further
opined that the exact sight of electric shock could not be
differentiated/located. The very document indicates that multiple
injuries observed on the body were suggestive of electric burns; but
the exact location of entry of shock could not be differentiated. The
Investigating Officer was right in testifying that he did not find it
necessary to have opinion of the Electrical Inspector or any other
expert from the electricity department, to find whether such injuries
were caused by single shock. According to him, the post mortem
examination report was quite sufficient to indicate the deceased to
have been done to death. In our view too, ten independent burn
injuries on the person of the deceased indicate each to have been
caused with separate electric shock. Had it been a case of the
accidental shock, the voltage of electric supply plays an important
role. In case of mild electric shock, the deceased would have fallen
or in case of incessant electric shock, her entire body would have
turned blacken with the electric current to have passed through the
entire body. Although the Medical Officer did not state in so many
words it to be a case of homicidal death, ten burn injuries, the blood
found on the floor of the room so also oozing from the eye and
mouth go a long way to suggest Sujata to have met with homicidal
death. The question is, whether the appellants are authors thereof.
28. Admittedly, it is a house comprising of not less than five
rooms. There were three separate rooms occupied by each couple,
besides hall and kitchen room. There is evidence to indicate that
due to assault by A2 (father-in-law) on 08.02.2012, Sujata had
started residing separately in one of the rooms. Necessarily, it was
occupied by her along with her husband and their child.
29. PW 8 - Anuja was neighbour of the appellants. It is in her
evidence that there used to be frequent quarrels between Sujata on
one hand and her in-laws, on the other. According to her, the
incident took place in the month of March, 2012. By 10.00 p.m.,
there was water supply to public water tap. She was filling water.
She heard quarrel in the house of the appellants between Sujata and
accused (appellants). She did not visit their house as the quarrel
was the usual feature. It is further in her evidence that by 12.15 in
the midnight, she heard shouts emanating from the house of the
appellants. The shouts stopped by 01.10 a.m. At about 05.00 in the
morning, she heard noise from outside of her house. She came out
and saw persons to have gathered in front of the house of the
appellants.
30. During the cross-examination of PW 8 - Anuja, she
testified that police did not record her statement. Her husband's
statement was recorded. The fact is that the incident dates back to
March, 2012. Her evidence was recorded seven years after the
incident. The Investigating Officer testified to have recorded
statements of the persons acquainted with the facts and
circumstances of the case. After finding on record PW 8's police
statement, learned counsel for the appellants gave up his objection
that she was examined as a witness without there being her
statement under Section 161 of the Code of Criminal Procedure.
31. The evidence referred to herein above lead us to
conclude Sujata to have met with homicidal death at her matrimonial
home and particularly, in the room exclusively occupied by her, A1
and their child. We have perused the authorities relied on by learned
counsel for the appellants and particularly, the paragraphs
highlighted by learned counsel. It needs no mention that a criminal
case is decided on the basis of the facts and circumstances thereof.
We are conscious of the legal position that the burden of proof in the
criminal trial is static and it is for the prosecution to prove the charge
beyond reasonable doubt. Relying on the authorities, learned counsel
meant to say that there was no single witness examined by the
prosecution to indicate that the appellants were at their residence at
the relevant time. According to him, the Medical Officer has given
time of death as 10-12 hours before commencement of the autopsy.
Said period takes back to 03.00 am., while, according to PW 8 -
Anuja, shouts in the house of the appellants stopped little past 01.00
a.m. Her evidence, thus, becomes unreliable.
32. The judgment of the Apex Court in the case of Jaharlal
Das (supra) relied on by learned counsel for the appellants, speaks
about a case based on circumstantial evidence. It has further been
observed therein that it is well settled that the circumstantial
evidence, in order to sustain the conviction, must satisfy three
conditions: (i) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established; ii)
those circumstances should be of a definite tendency unerringly
pointing towards the guilt of the accused; and iii) 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 none else, and it should
also be incapable of explanation on any other hypothesis than that of
the guilt of the accused. It has further been observed in paragraph 9
that :-
"9. It may not be necessary to refer to other decisions of this
Court except to bear in mind a caution that in cases depending
largely upon circumstantial evidence there is always a danger
that the conjecture or suspicion may take the place of legal
proof.........
33. In the case of P. Mani (supra), it has been observed that
in criminal case, it is for the prosecution to prove involvement of the
accused beyond all reasonable doubt. It was not a case where both,
husband and wife, were last seen together inside a room. The facts
of the said case recorded in paragraphs 2 and 3 thereof, would
indicate some distinguishable facts with the facts of the case on
hand.
In the case of Sohel Mehaboob Shaikh (supra), again,
the principle as regards burden to prove in the case based on
circumstantial evidence is same. Paragraph 6 of the said judgment
would suggest the Apex Court, after having gone through the
evidence on record, found that the High Court had arrived at some
conclusions, which were based on surmises and conjectures, without
there being any evidence to support the conclusions.
In the case of Suresh Vithal Parkar (supra), the
prosecution could not establish the exact time of death and the
presence of the appellant therein, at his residence, by the time the
offence might have been committed.
In the case of Sunil Latari Khuje (supra), it was
observed that the prosecution had failed to prove presence of the
appellant at the house on some time proximate to occurrence of the
crime, which was important chain of circumstances leading to the
guilt of the accused.
Rest of the authorities relied on by learned counsel for
the appellants, more or less, are about the submissions made by him
in defence of the appellants.
34. At the cost of repetition, it is to be stated that PW 8 -
Anuja gave her evidence seven years after the incident. Same
cannot be taken with the precision or tick of the clock. She being
neighbour of the appellants, was categoric to state to have heard
quarrels between Sujata on one hand and the accused persons, on
the other, by 01.00 am. True, she had not seen who were in the
house of the appellants. PW 8 - Anuja testified that there were
quarrels between the appellants on one hand and deceased Sujata,
on the other, by 01.00 a.m. Admittedly, it was their residential
house. It would be a matter of common knowledge that a person
after doing all his work during the day time, returns to his house in
the evening. In the case of Trimukh (supra), it has been observed
as under:-
"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 Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)] --
quoted with approval by Arijit Pasayat, J. in State of Punjab v.
Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135)]. The
law does not 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 travelling 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.
xxx xxx xxx
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 place 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. ..."
(Emphasis supplied)
35. Close reading of the aforesaid observations would
indicate that the last limb of paragraph 22 starts with "or the offence
takes place in the dwelling house 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".
36. In the case in hand, A1 relies on his statement (Exh.65),
which was a statement on the basis of which a station-diary entry
no.88 of 2012 was made, registering it to be a case of unnatural
death. According to A1's statement, he and A3 were in their field.
They took dinner and slept overnight there. Both of them came
home by little past 05.00 in the morning. His brother, A3 received
phone call from their neighbour - Viru Bandichode, informing Sujata
to have suffered electric shock and asked them to return home early.
Therefore, they returned to home by 06.00 in the morning to find
Sujata was lying dead in the room. Then, he informed his parents
and sister-in-law. In our view, this statement is nothing but creation
of defence. A1 did not examine himself nor any other witness in
defence. True, it is not necessary. Nor we can make observation this
way. We meant to say A1 need to have offered explanation the way
he could have. If he had already returned home by 06.00 in the
morning, why it took three hours for him to lodge the report as
regards the alleged unnatural death. Had he really been to his field
and returned home on hearing his wife to have suffered electric
shock, the natural conduct on his part would have been, first to rush
Sujata to a nearby private hospital or call local Doctor to examine
her. Nothing of that sort had been done. On the contrary, the
evidence of PW 4 - Mangalbai indicates that she received phone call
of A2 at 05.00 in the morning, informing Sujata to have suffered
shock. This falsifies the case of A1 that he informed his parents on
return to the home at 06.00 in the morning. It is just difficult to
assume that they did not notice the shock injuries on the person of
the deceased Sujata. A3 - Dagdu does not claim in his examination
under Section 313 of Cr.P.C., to have been in the field on the fateful
night with A1 - Mahalappa.
37. In our considered view, A1 has come with a false
defence, which is inconsistent with the evidence on record. As per
the evidence of PW 8 - Anuja, A1 was at his residence by late in the
night. Since the incident took place in the room exclusively occupied
by him along with the deceased, we find the trial court to have
rightly convicted him for the reason he failed to offer explanation as
to under which circumstances, his wife (Sujata) met with homicidal
death. So far as regards other appellants, namely, Babu (A2) and
Dagdu (A3) are concerned, though the evidence indicates that they
were more brutal than A1, they need to be given benefit of doubt
assuming them to have been in their respective exclusively occupied
rooms.
38. For all the above reasons, the appeal partly succeeds. In
the result, the following order:-
(i) The appeal is partly allowed.
(ii) The impugned order dated 04.02.2022, passed by
learned Addl. Sessions Judge, Omerga, Dist. Osmanabad, in Sessions
Case No.24 of 2013, convicting and sentencing appellant no.2 - Babu
Mahalappa Bandichode and appellant no.3 - Dagdu Babu
Bandichode, for the offence punishable under Section 302 read with
Section 34 of Indian Penal Code, is set aside. They stand acquitted
of the said offence. They be released forthwith, if not required in any
other case. Fine amount paid by them, if any, be refunded to them.
(iii) The impugned order of conviction and consequential
sentence for the offence punishable under Section 302 of Indian
Penal Code, as against appellant no.1 - Mahalappa Babu Bandichode,
is maintained.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
