Bombay High Court
Rajkumar S/O. Bhurelal Choudhary vs State Of Maharashtra Thr. Police ... on 12 July, 2021
Author: V. M. Deshpande
Bench: V. M. Deshpande, Amit B. Borkar
1 APEAL15.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 15 OF 2018
APPELLANT : Rajkumar S/o Bhurelal Choudhary,
Aged about 35 years, Occupation : Labourer,
R/o Katurli, Tah. Amgaon, Dist. Gondia.
VERSUS
RESPONDENT : State of Maharashtra,
Police Station Officer, Amgaon,
Tah. Amgaon, Dist. Gondia.
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Mr. Mir Nagman Ali, Advocate for appellant.
Mr. T. A. Mirza, A. P. P. for the respondent/State
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CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.
DATE : JULY 12, 2021.
ORAL JUDGMENT [Per V. M. Deshpande, J.]
1. This appeal is directed against the judgment and order of conviction passed by the learned Sessions Judge, Gondia. The impugned judgment is delivered by the learned Sessions Judge on 21.03.2017 in Sessions Trial No. 50 of 2012.
The learned Sessions Judge found the appellant guilty for the offence punishable under Section 302 of the Indian Penal ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 2 APEAL15.18.odt Code. For such conviction, imprisonment for life is awarded together with payment of fine of Rs.1,000/- with default clause.
2. The case of the prosecution, as it is unfolded during the course of the trial, is in short compass which is detailed herein as under :
A] On 07.05.2011, Vishwas Ramchandra Patil (PW12) was attached to Amgaon Police Station, District Gondia as Police Sub Inspector. One Gomaji Chandulal Yele (PW1) visited the police station and reported about the suspicious death of his niece Ranjita.
B] Gomaji Yele (PW1) lodged his oral report (Exh.21). In the report, he disclosed that his younger brother Potan has passed away 7-8 years ago. Potan was having three daughters. Youngest amongst them was Bhumabai @ Ranjita, whose marriage was performed before about eight years with Rajkumar Bhurelal Choudhari (appellant).
His further narration in the report is that on 07.05.2011, in early hours at 4.30 am, his nephew Mukund Mulchand Yele (PW4) came to his house and informed that Bhumabai resident of Katurli is dead, is the information which he received from Rajkumar ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 :::
3 APEAL15.18.odt Choudhari (appellant) on his cell phone. The report further states that on getting this information the first informant along with his wife reached to village Katurli at about 7.30 a.m. to notice that Bhumabai @ Ranjita was lying in dead condition and he noticed some injury marks on her cheek. It is, therefore, stated in the report that the appellant has committed murder of Ranjita. The printed first information report is at Exh.22.
C] PSI Patil (PW12), after receipt of the aforesaid information, immediately visited the spot. He found that the dead body was kept in the first room of the house of the appellant and there were marks of injuries on cheeks, lips and neck. He also found that blood was oozing from her right ear. He also noticed that there were injury marks on elbow joints. The relatives of the deceased, the appellant and police staff were also present on the spot.
PSI Patil immediately drawn inquest panchanama (Exh.53). He sent the dead body for post mortem, by giving duty certificate (Exh.43) to the Police Constable. He arrested the accused under arrest panchanama (Exh.54). He also recorded the spot panchanama in presence of the panchas (Exh.38). He found on the ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 4 APEAL15.18.odt spot of the incident, which is the rear portion of the house, broken bangles and one button of a shirt. Those were seized under seizure panchanama (Exh.39). During the investigation, blood samples of the accused were also drawn and those were seized under seizure memo (Exh.29). After completion of other usual investigation, he filed the charge-sheet.
3. The learned Jurisdictional Magistrate, in whose Court the charge-sheet was filed, found that the offence is exclusively triable by the Court of Sessions and therefore, he committed the case to the Court of sessions.
4. In the Sessions Court, the case was registered as Sessions Trial No. 50 of 2012. The learned Sessions Judge, Gondia framed the Charge against the appellant for the offence punishable under Section 302 of the Indian Penal Code (Exh.14). The appellant abjured his guilt and claimed for his trial.
5. In order to bring home the guilt of the appellant, the prosecution has examined in all 13 witnesses. They were cross- ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 :::
5 APEAL15.18.odt examined by the learned defence counsel. The appellant did not examine any defence witness.
From the line of cross-examination of the prosecution witnesses, the defence of the appellant was that due to epilepsy attack, neck of the deceased was entangled in the rope of the cot (ckt) resulting into her death. In his statement under Section 313 of the Code of Criminal Procedure (hereinafter referred to as "the 313 statement" for short), it was the defence of the appellant that after the death of his father-in-law, the first informant was demanding the field of his father-in-law, which he did not allow his wife to do so. Therefore, he had a grudge against him and lodged a false report against him.
6. After appreciating the prosecution case and after considering the defence in the light of various proved documents, the learned Sessions Judge found that the prosecution was successful in proving its case against the appellant and therefore, he passed the judgment under challenge.
7. We have heard Shri Mir Nagman Ali, learned counsel for ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 6 APEAL15.18.odt the appellant and Shri T. A. Mirza, learned Additional Public Prosecutor for the State in extenso. We have also perused the record and proceedings.
8. According to Mr. Ali, the learned counsel for the appellant, in view of the fact that there is no eye-witness account, the prosecution was under an obligation to prove that the chain of circumstances was required to be fully established and according to him, the prosecution has failed. He submits that the prosecution has not proved the extra judicial confession made by the appellant, beyond reasonable doubt. Therefore, in his submission, the chain is not complete. He also relied upon the reported cases of this Court in the case of Suresh Vithal Parkar .vs. State of Maharashtra, reported in 2015 All M.R. (Cri.) 1287 ; in Rekha Sitaram Chavan .vs. State of Maharashtra, reported in 2014 All M.R. (Cri.) 3279 ; and in Parubai W/o Gulab Watane .vs. State of Maharashtra, reported in 2018 All M.R. (Cri.) 673. He, therefore, submitted that the appeal be allowed.
9. Per contra, Mr. Mirza, learned Additional Public Prosecutor for the State vehemently countered the submissions put ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 7 APEAL15.18.odt forth by the learned counsel for the appellant. He submitted that the prosecution has proved its case by adducing circumstantial evidence and the facts proved by the prosecution are consistent only with the hypothesis of the guilt of the appellant. He submitted that the death of Ranjita was in her matrimonial house in the wee hours of the date of incident. He submitted that the deceased was in the custody of the appellant he being the husband. He submitted that the appellant has not offered any plausible explanations which were in exclusive knowledge of him about the facts resulting into the demise of his wife. He submitted that in view of the provisions of Section 106 of the Evidence Act, the onus to explain the circumstances under which the deceased met with death was on the appellant. He relied upon the reported judgments of this Court in the case of Mahendra S/o Parashram Chakate .vs. State of Maharashtra, reported in 2017 All M.R. (Cri) 164 and in the case of Narayan S/o Pisaram Chauragade .vs. State of Maharashtra, reported in 2005 All M.R. (Cri) 2453. He submits that the learned Sessions Judge has rightly appreciated the prosecution case and awarded the conviction and punishment to the appellant. He, therefore, prays for dismissal of the appeal.
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8 APEAL15.18.odt CRITICAL ANALYSIS OF THE PROSECUTION CASE
10. True it is that in this prosecution case there are no eye- witnesses. The prosecution case is completely based on the circumstantial evidence. How the circumstantial evidence should be appreciated, the Hon'ble Apex Court has given guidelines for scanning and analysing the evidence in Hanumant and others .vs. State of Madhya Pradesh, reported in AIR 1952 SC 343 and in Sharad Birdhichand Sarda .vs. State of Maharashtra, reported in 1984 SCC (Cri) 487.
11. Keeping in mind the principles settled by the Hon'ble Supreme Court in the aforesaid two leading cases, we will have to consider the prosecution case.
12. The prosecution has relied upon the following circumstances, which are also cataloged by the learned Sessions Judge in his judgment, which are as under :
a] That the accused and the deceased were residing as husband and wife in the house at Katurli, Tah. Amgaon.
b] That there used to be quarrels between accused and the deceased and before the incident in question ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 9 APEAL15.18.odt due to intervention of Tanta Mukti Samiti the same quarrel was settled.
c] That Bhumabai @ Ranjita has died homicidal death in the said house with injuries around her neck and internal head injury.
d] That the deceased was in the custody of the accused in the said house at the time of incident. e] That the accused approached his neighbour Diwanji Bisen at about 4.30 a.m. on 07.05.2011 and informed that the health of Ranjita is not well and that the doctor should be called.
f] On visit of Diwanji Bisen to the house of accused at about 6.30 a.m., he found marks of injuries on the neck of the deceased.
g] Broken pieces of bangles and one white colour button of the shirt was lying in the kitchen room near the rear door of the house of the accused.
h] That the accused in presence of the relatives of the deceased confessed having committed murder of Bhumabai @ Ranjita.
i] That the accused took false plea that Bhumabai @ Ranjita dies of epilepsy attack, getting her neck entangled in the rope of the cot (khat).
13. Before analysing the circumstances, we would like to consider the submissions of the learned counsel for the appellant that in this case since the prosecution was not able to point out the exact time of death, it would be unsafe to hold the appellant guilty. ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 :::
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14. True it is that the exact time of death is not available in the record. The post mortem report is at Exh.68. The autopsy was performed by Dr. Rushikesh Shambharkar (PW13). Dr. Shambharkar (PW13) was attached to the Rural Hospital, Amgaonon 07.07.2011 as a Medical Officer. His evidence would show that he received requisition (Exh.67) along with the dead body of Ranjita for conducting post mortem. His evidence would show that he started post mortem at 4.00 pm and completed the same at 5.30 p.m. The post mortem report (Exh. 68) also shows that after receipt of the dead body at 4.00 pm, Dr. Shambharkar started conducting post mortem at 4.15 pm and it was completed at 5.30 pm. Neither during the course of the trial nor before this Court, the authenticity of post mortem report (Exh.68) is challenged. Exh.68 is duly proved by PW13 Dr. Shambharkar, the Autopsy Surgeon. Column no.11 of the post mortem report notes that - "rigor mortis present", whereas column no. 12 of the post mortem report recites that - "no signs of decomposition".
15. The post mortem report (Exh.68) is not having any ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 11 APEAL15.18.odt column about the time of death. In that context, no fault could be attributed to the learned Autopsy Surgeon in not mentioning the time of death.
16. It was the duty of the learned Additional Public Prosecutor, who was in charge of the brief while examining Dr. Shambharkar, to solicit answer about the time of death by putting required questions. Perusal of the evidence of Dr. Shambharkar (PW13) does not show that the learned Additional Public Prosecutor had put such questions. The justice cannot be the victim for any lapse on the part of the learned Prosecutor. Especially after noticing column nos. 11 and 12 of the post mortem report (Exh.68), this Court, while discharging its duty as an Appellate Court, can attempt to determine the time of death. The authority on Medical Jurisprudence - Modi's Text Book on Medical Jurisprudence and Toxicology, states the time of onset as under :-
"Time of onset - This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two or three hours to develop. In India, it usually commences in one to two hours after death."::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 :::
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17. The Hon'ble Apex court in Virendra alias Buddhu and another .vs. State of Uttar Pradesh, reported in (2008) 16 SCC 582 has ruled in paragraph 25 of the judgment as under :
"25. It is mentioned at p.125 of Modi's Medical Jurisprudence and Toxicology, Edn. 1977 that in general rigor mortis sets in 1 to 2 hours after death, is well developed from head to foot in about 12 hours, is maintained for about 12 hours and passes off in about 12 hours. In the instant case rigor mortis was present in lower extremities at the time autopsy was conducted on the dead body after 30 hours. As according to ocular testimony the deceased was murdered on 05.10.1979 at about 10.00 a.m. and the doctor conducted autopsy on the dead body on the next day at about 4.30 p.m. after 30 hours of death but rigor morties was found present in lower extremities . Had he died on 04.10.1979 at about 10.00 p.m. or so rigor mortis would have passed off from the dead body completely at the time of autopsy. Thus the ocular testimony that he was murdered on 5.10.1979 at about 10.00 a.m. stands corroborated from the medical evidence pin pointing that rigor mortis was present in lower extremities at the time when the autopsy was conducted on the dead body after 30 hours."
18. The Hon'ble Apex Court in Daryao singh .vs. State of Madhya Pradesh, reported in (1991) 2 SCC 588, in paragraph 9 of the judgment has explained the process of decomposition, which is ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 13 APEAL15.18.odt reproduced herein as under :
"9. It is common knowledge that after death the body starts to cool down to the surrounding temperature. The cooling of the body is the earliest phenomenon which is followed by post-mortem lividity resulting from discontinuance of blood circulation and collection of blood in certain parts under gravitational action, depending on the position of the dead body. the stoppage of blood circulation and the inaction of the natural defensive mechanism result in the bacteria present in the body as well as those that enter from outside getting scattered in every part of the body setting in the process of putrefaction, unless special care is taken to prevent the same. Decomposition in thus essentially the process of putrefaction which is dependent on environmental and climatic conditions. In the present case death had occurred on September 25 and the dead body lay in the police station with the wounds exposed till it was brought to the hospital at 5.20 p.m. on the next day. The body remained in the same condition in the hospital till 7.00 a.m. on the next day when the post- mortem examination was undertaken. The body thus remained fully exposed to the heat and humidity of the month of September for over thirty hours and hence it is not surprising that the rigor mortis had passed off. Ordinarily after rigor mortis has passed off, the process of putrefaction sets in but it may set in even earlier during summer depending on the heat and humidity. Body changing colour and emitting foul smell, are the two special characteristics of the decomposition process. The first external evidence of putrefaction is the formation of greenish discoloration of the abdominal skin over the iliac fossae which occurs within six to twelve hours in summer and spreads all over the body ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 :::
14 APEAL15.18.odt within twelve to eighteen hours of death. As time passes they deepen in colour and become purple. With the spread of bacteria, there is gradual development of gases in the intestines within twelve to eighteen hours and liquefaction also takes place and soon spreads to other parts of the body. Putrefaction thus results in general disintegration of the tissues due to residual enzymatic activity in the cells causing widespread formation of gases emitting foul smell and if the body is exposed, as in the present case, flies lay eggs on exposed wounds forming maggots. The body gets bloated and liquified, the skin looses coherence, the superficial layers peel off easily and blisters are formed. It is, therefore, not suprising that owning to the formation of gases the penis and the scrotum were swollen and there was the presence of maggots."
19. The evidence of PW2 Diwanji Bisen shows that the appellant reached to his house on 07.05.2011 at 4.30 a.m. He gave a call to him and informed that heath of Ranjita is deteriorated and therefore, he should call Doctor. His evidence further shows that he called Dr. Kore, though it appears that he is not qualified one. Be that as it may. Doctor came and thereafter PW2 Diwanji and Doctor went to the house of the appellant and they found that Ranjita is dead.
20. In view of existence of rigor mortis and no signs of ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 15 APEAL15.18.odt decomposition in the light of the guidelines reproduced in the above paragraphs and in the light of the other evidence, there will be no difficulty for this Court to determine that Ranjita died in between 4.00 to 4.30 a.m. on 07.05.2011.
21. Once the Court determines the time of death, the Court proceeds to examine as to whether the circumstances which are cataloged by the prosecution are duly proved.
22. The first circumstance i.e. circumstance (a) is that the appellant and deceased were residing as husband and wife at village Katurli of Tah. Amgaon. The evidence of PW1 Gomaji Yele, uncle of deceased, PW10 Rayabai Yele, mother of deceased, PW4 Mukund Yele, brother of deceased and PW7 Priti Rahangadale, an independent witness, shows that the appellant and the deceased were the husband and wife. As per the evidence of Gomaji (PW1) and the other prosecution witnesses, the marriage between the appellant and the deceased was performed about 10 - 15 years back. This particular aspect about his marriage with the deceased is specifically admitted by the appellant when he was examined by the ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 16 APEAL15.18.odt learned Judge of the trial Court under Section 313 of the Cr.P.C. The prosecution has examined one Latabai Bisen (PW5). In her evidence, she states that she is cousin sister of the deceased. Her evidence would show that after the marriage, the appellant and the deceased were residing at her village Batana. They resided there for about 4 - 5 years and thereafter they started residing at village Katurli. In question No.22 in the 313 statement, this aspect was put to the appellant and he admitted about his residence. Even before this Court the learned counsel for the appellant Mr. Ali did state that initially though the couple was residing at village Batana, thereafter they started residing at village Katurli. In view of the unchallenged evidence of the prosecution witnesses about the factum of marriage between the deceased and the appellant and their stay at village Katurli, rather admitted by the appellant in his examination under Section 313 of Cr.P.C., there is no doubt that the prosecution has proved circumstance (a).
23. Another circumstance i.e. circumstance (b), which is pressed into service by the prosecution, is that there used to be quarrels between the appellant and the deceased and before the ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 17 APEAL15.18.odt incident in question due to intervention of Tanta Mukti Samiti, the said quarrel was settled. Insofar as this circumstance is concerned, the prosecution has examined PW4 Mukund Yele, PW5 Latabai Bisen and PW10 Rayabai Yele.
PW4 Mukund is the brother, PW5 Latabai is the cousin sister and PW10 Rayabai is the mother of the deceased. As per the evidence of PW4 Mukund, after the marriage, the appellant gave good treatment to the deceased for about two years. He deposed that before the incident, there was a quarrel between the appellant and the deceased and the dispute was settled before the Tanta Mukti Samiti. He also deposed that 4 - 8 days before the incident, the deceased had been to his house and she narrated that the accused used to quarrel with her. Similarly, PW5 Latabai also deposited that the matter was settled before the Tanta Mukti Samiti and the appellant gave assurance before the said Samiti that he will give good treatment to Ranjita.
24. After considering the entire evidence of PW4 Mukund and PW5 Latabai, there is no doubt in our mind to discard their evidence in respect of their version regarding settlement of the ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 18 APEAL15.18.odt dispute before Tanta Mukti Samiti as they themselves have admitted in their cross-examination that they were not present at the time of settlement of the dispute before the said Samiti and as per the evidence of PW4 Mukund, the said fact was brought to his notice by his brother. In view of this, their evidence about the settlement of the dispute before Tanta Mukti Samiti is an hearsay evidence and therefore, there is no difficulty for us to discard their version to that extent. Evidence of PW4 Mukund about narration of quarrel by the deceased to him about 4 - 8 days before the incident is an improved version inasmuch as the said fact was not deposed by this witness during the course of the investigation.
25. PW10 Rayabai is the mother of the deceased. Her evidence would show that the appellant used to beat her daughter and her daughter used to inform the said fact to her. She also deposed that there was a meeting of Tanta Mukti Samiti to settle the dispute and before the said Samiti, there was settlement between the appellant and the deceased and thereafter the deceased started cohabiting with the appellant. The tenor of cross-examination of this witness shows that the defence has not challenged the meeting of ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 19 APEAL15.18.odt Tanta Mukti Samiti and the settlement that arrived at.
Further, PW5 Rayabai's evidence would show that the deceased came to her house for Sankrant (14th January) and she resided with her for 2 - 4 days. That time she narrated about the atrocities on her. Her evidence shows that after 2 - 4 days Ranjita left for her matrimonial house. Though, in her cross-examination, a suggestion was given to Rayabai (PW10) that the deceased did not visit Rayabai's house on the eve of Sankrant, she denied the same. However, when that incriminating circumstance was put to the appellant as question no. 38 in the 313 statement, the appellant admitted the deceased's stay with Rayabai at her house, though he denied about the ill-treatment. In view of the quality of the evidence of Rayabai in respect of the Tanta Mukti Samiti meeting, which remained unshaken during her cross-examination, in our view the said aspect was rightly considered by the learned Judge of the trial Court in favour of the prosecution.
Insofar as the visit of the deceased to her paternal house on the eve of Sankrant and her stay there for 2 - 4 days as deposed by Rayabai (PW10) and in view of the admission by the appellant himself that such fact did happen, there will not be any difficulty for ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 20 APEAL15.18.odt this Court to accept the evidence of Rayabai to that extent.
26. PW10 Rayabai is the mother of the deceased. The deceased has already lost her father. PW1 Gomaji is the uncle of deceased. PW4 Mukund and PW5 Latabai are the cousins of the deceased. Therefore, it is most natural on the part of the deceased to disclose the quarrels picked up by her husband and beating to her by the appellant, to Rayabai. Similarly, the evidence of Rayabai about the beating as disclosed to her by the deceased when she came to her house on the eve of Sankrant has gone unchallenged. The cumulative effect of the aforesaid, in our view, the learned Judge has rightly recorded a finding that the prosecution has proved circumstance (b).
27. Insofar as circumstance (c) and circumstance (i) are concerned, they relate to the prosecution case that Ranjita died homicidal death in the matrimonial house having injuries around her neck and internal head injury. To prove homicidal death, the prosecution has examined PW13 Dr. Rushikesh Shambharkar. ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 :::
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28. It would be useful here to note the evidence of other prosecution witnesses, who noted injuries around the neck of the deceased even before conducting the post mortem. PW2 Diwanji Bisen is the neighbour of the appellant. His evidence would show that he know both, the appellant and the deceased. This fact is admitted by the appellant in his 313 statement. Evidence of PW2 Diwanji would show that the incident took place in the month of May-2011 on the day of Akshay Tritiya. He deposed that early in the morning at about 4.30 a.m., the appellant came to his house. He gave a call to him. He woke up. The appellant told him that health of Ranjita is deteriorated. The appellant requested him to call the Doctor. Therefore, this witness gave a call to Dr. Viju Kore. Along with Dr. Kore, this witness went to the house of the appellant. That time he noticed the dead body of Ranjita. What is important to note is that his evidence would show that this prosecution witness noticed injury marks on the neck of the deceased. His evidence would show that thereafter the relatives of the deceased came. All the relatives of the deceased, who are examined by the prosecution, also state about they noticing injury marks around the neck of the deceased. The inquest panchanama (Exh.53) recites as under - ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 :::
22 APEAL15.18.odt "rksaM v/kZoV m?kMs vkgs- Mkos xkykl o vksBkl ,dq.k 4 fBdk.kh t[kekaps oz.k vkgs- xG;kr eaxGlq= vlqu xG;kl nkcY;kps oz.k vkgs-"
The inquest panchanama was done prior to the post mortem.
29. PW13 Dr. Rushikesh Shambharkar in his evidence states that while conducting post mortem he found following external injuries :-
i] Nail marks on throat i.e. bruises to each on each side of thyroid cartilage.
ii] I have noticed that sub-cutaneous tissue around the bruises were congested.
These injuries are mentioned in column 17 of the post mortem report (Exh.68) .
Dr. Shambharkar also found that there was fracture of hyoid bone, which he has mentioned in column 18 of the post mortem report and according to Dr. Shambharkar, the injuries were ante mortem. According to the Autopsy Surgeon, the cause of death was due to asphyxia by throttling and due to hemorrhagic shock.
Even as per the evidence of PW10 Rayabai, she also stated that she noticed the injury marks on neck and face when she reached to the house of Ranjita.
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30. During the course of cross-examination of Dr. Shambharkar, a suggestion was given to him that the injuries as noticed by him are possible because of the epilepsy attack and if neck of a person is entangled in the rope of cot ( Khat). This suggestion was stoutly denied by the learned Autopsy Surgeon. Apart from mere suggestion, nothing was brought to the notice of the autopsy surgeon by the learned cross-examiner to prove the said aspect.
Be that as it may. If it was the defence of the appellant that such injuries are possible due to epilepsy attack, surely to prove said defence something was required to be brought on record to show that the deceased was suffering from epilepsy. The learned cross-examiner has given mere suggestion to that effect to the relatives of the deceased, which were denied by them. No document is coming on record either during the cross-examination of the prosecution witnesses or when the appellant was examined under section 313 of Cr. P.C. to show that the deceased was having history of epilepsy. Further, as per the suggestion given to Dr. Shambharkar, the neck of deceased was entangled in the rope of the cot ( khat), however, as observed above, the said suggestion was denied and in ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 24 APEAL15.18.odt addition to that, document Exh.38, which is a spot panchanama, executed by the Investigating Officer in the presence of the appellant and the copy of the same was given to the appellant simultaneously, is conspicuously silent about the presence of any cot ( Khat) on the spot. In view of the aforesaid evaluation of the prosecution evidence, we have no difficulty to hold that the prosecution has proved not only the circumstance (c), but also circumstance (i).
31. Circumstance (d) as cataloged is that the deceased was in the custody of the appellant in the house at the time of the incident. This particular circumstance is duly proved by an independent witness PW2 Diwanji Bisen, a neighbour and PW3 Ramesh Jaitwar. Though, PW3 Ramesh is declared hostile, however on the other aspect. In view of the aforesaid, we have no difficulty to hold that the prosecution has proved circumstance (d).
32. Insofar as circumstances (e) and (f) are concerned, in the preceding paragraph, it has been observed by this Court that the appellant's visit to the house of PW2 Diwanji Bisen is specifically admitted by the appellant himself when he was examined under ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 25 APEAL15.18.odt Section 313 of Cr.P.C. Apart from that, independently PW2 Diwanji Bisen has proved the said aspect. Though very faintly, but it was argued before this Court, as argued before the trial Court, that PW2 Diwanji was on enmical terms with the appellant because the appellant has constructed his house on 10 decimal land belonging to said Diwanji, however, the fact remains that the evidence of PW2 Diwanji that the appellant visited his house at 4.30 am, he gave a call to Diwanji and disclosed that health of his wife is deteriorating and therefore he should call the Doctor, is not only remained unchallenged, but it is an admitted fact by the appellant himself when he was examined under Section 313. If that be so, then the submission made by the learned counsel for the appellant about enmity between them, looses its force. In that view of the matter, we have no difficulty to hold that the prosecution has proved circumstances (e) and (f).
33. The another circumstance which the prosecution has pressed into service is circumstance (g) about the broken pieces of bangles and one white colour button of a shirt lying in the kitchen room near the rear door of the house of the appellant. While ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 26 APEAL15.18.odt preparing the spot panchanama in presence of panchas (Exh.38), the Investigating Officer found about presence of broken pieces of bangles and a white colour button of the shirt and accordingly, in the said contemporaneous document, it is mentioned. Though, panch witness Raju Lanjewar (PW8) has turned hostile, the spot panchama is duly proved by the Investigating Officer. The broken pieces of bangles and the button of the shirt were seized under seizure panchanama (Exh.39). The Chemical Analyser's reports are available on record at Exhs.62 and 63. The report at Exh.63 recites as under :
Description of articles contained in Parcel/s Exhibit (1) Pieces of glass bangles wrapped in paper lebelled Bn-1701/11/Exhibit[1] Exhibit (6) Pieces of glass bangles wrapped in paper lebelled Bn-1701/11/Exhibit[6] Result of Analysis Red coloured bangle pieces and orange yellow coloured bangle pieces in exhibit [1] tally respectively with red coloured bangle pieces and orange yellow coloured bangle pieces in exhibit [6], in respects of hue, physical properties and spectro- chemical composition."
Similarly, the report at Exh.62 recites as under -
Description of articles contained in Parcel/s Ex.no.[2] - Plastic button wrapped in paper lebelled -::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 :::
27 APEAL15.18.odt Bn-1701/11 --[2] Ex.no.[3] - Shirt wrapped in paper lebelled - Bn- 1701/11 -- [3] Result of Analysis Button in exhibit no.(2) tallies with the buttons stiched to the shirt in exhibit no.3 in respect of hue and physico-chemical characteristics.
34. Noticing of broken pieces of bangles and button of the shirt coupled with the Chemical Analyser's reports [Exhs.62 and 63], in our view, show that at the time of the incident, there was a violence between the appellant and the deceased and presence of broken pieces of the bangles and button of the shirt, which shirt was of the appellant, indicate struggle on the part of the deceased. In view of the aforesaid, we have no difficulty to hold that the prosecution has proved circumstance (g).
35. The next circumstance the prosecution has pressed into service is circumstance (h) about the accused confessing his guilt in presence of the relatives of the deceased that he committed murder of Bhumabai @ Ranjita. Though the prosecution has relied upon the extra judicial confession by the appellant to the relatives of the deceased, who were present and which is accepted by the learned ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 28 APEAL15.18.odt Judge of the Court below, on reappreciation of the evidence of the relatives of the deceased, especially in their cross-examination and in view of the examination-in-chief of PW5 Latabai alone, we have no difficulty to hold and record a finding that the extra-judicial confession made by the appellant was not voluntary one and it was obtained by the prosecution witnesses under threat.
Another reason for not accepting the same is, none of the prosecution witness disclose the fact of confession immediately. From record, it is clear that police reached to the spot on very same day in morning itself. PW2 Diwanji Bisen claims about confession made to him. Though, police were present, from his evidence it is clear that his statement was recorded by police after two days. Not only that, he did not claim that he was unable to give his statement earlier because of any reason. In that view of the matter, to that extent, we are not accepting the finding given by the learned Sessions Judge that there was extra judicial confession. Therefore, the extra judicial confession has to be discarded.
36. Even though the extra judicial confession is discarded, in our view, the remaining circumstances consistently prove that the ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 29 APEAL15.18.odt hypothesis of the guilt of the appellant and the chain of the circumstances is so complete that except the finding that the appellant has committed murder of his wife and he is responsible for her homicidal death, no other finding can be recorded.
37. In view of the fact that the prosecution has proved the events as cataloged by the prosecution, the aspects that the appellant was residing at the relevant time with the deceased in his house, there was a violence on the body of the deceased and the presence of the appellant, are firmly established. In that view of the matter, the reported judgments pressed in to service by the learned Additional Public Prosecutor covers the fate of the appellant.
38. Death of the deceased was caused inside the house. The deceased was in the custody of the appellant. In that view of the matter, the law laid down by the Hon'ble Apex Court in Trimukh Maroti Kirkan .vs. State of Maharashtra, reported in (2006) 10 SCC 681 is applicable in this prosecution case with its full force. In the said judgment, the Hon'ble Apex Court has ruled as under :
"If an offence takes place inside the privacy of a house and in such circumstances where the ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 30 APEAL15.18.odt 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. 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."
39. Reliance put forth by the learned counsel for the appellant on Rekha Chavan's case (supra), in our view, is not applicable in the present case in view of the fact that in the reported case in view of the evidence of PW12 Kusum, the Division Bench of this Court found that the proseution could not prove presence of ::: Uploaded on - 22/07/2021 ::: Downloaded on - 20/09/2021 21:32:33 ::: 31 APEAL15.18.odt Rekha at the time of murder of her husband in the house. Similarly, on facts, we are not able to pursue ourselves to accept that the dictum of Suresh Parkar's case (supra) can be made applicable in the case at hand because in Suresh Parkar's case, the prosecutoin could not prove presence of Suresh near the deceased.
40. On reappreciation of the entire prosecution case, we have no difficulty to hold that the prosecution has proved the homidical death of deceased Bhumabai @ Ranjita and the authorship of homicidal death firmly rests on the shoulder of the appellant. Consequently, we pass the following order :-
ORDER The criminal appeal is dismissed.
JUDGE JUDGE
Diwale
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