Bombay High Court
Netaji Shivram Chougale vs The State Of Maharashtra on 25 March, 2013
Author: P.D Kode
Bench: V.K.Tahilramani, P.D. Kode
1 appeal 200.08.doc
dss
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.200 OF 2008
Netaji Shivram Chougale
Age 32 years,
R/o. Basarge, Tal. Gadhinglaj
Dist. Kolhapur
(At present lodged at ..Appellant
Kolhapur Central Prison) [Ori. Accused ]
Vs.
The State of Maharashtra
(At the instance of Gadhinglaj
Police Station)
ig ..Respondent
....
Ms. Rohini M. Dandekar, appointed Advocate for the Appellant
Mr. P.S. Hingorani, APP for the State
....
CORAM : SMT.V.K.TAHILRAMANI &
SHRI. P.D. KODE, JJ.
DATE : MARCH 25, 2013
ORAL JUDGMENT [PER SHRI. KODE P.D.J.] :-
The appellant-original accused No.1 in S.C.No.16 of 2005 assails the judgment and order dated 7th August, 2007 passed by the learned Addl. Sessions Judge, Gadhinglaj, convicting him for murdering wife Manisha on 18th November, 2004 and sentencing to suffer imprisonment for life and to pay a 1 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 2 appeal 200.08.doc fine of Rs.5,000/- and in default of payment of fine, to suffer further rigorous imprisonment for six months. Shivram-original accused No.2 and Laxmibai-original accused No.3, i.e. parents of the appellant also tried alongwith the appellant at the trial, were acquitted from the charge of all of them in furtherance of their common intention having committed murder of Manisha.
2. According to the prosecution, the appellant and Manisha since their marriage effected on 27th May, 2003 were residing at the house of the parents of the appellant, viz. acquitted accused Nos.2 and 3 in the fields at village Basarge. The appellant then was working as a Pigmi Agent for Noukud Credit Society. About 2-3 months prior to the incident in question, the appellant came to Mumbai for job and was working at Mumbai.
2.1 The original accused No.2 Shivram, father-in-law of Manisha in June, 2003 has taken a loan of Rs.15,000/- from father of Manisha PW6 Sambhaji for erecting Gobar Gas Plant, on assurance of returning the loan in a year. Original accused NO.2 again in month of September, for a period of 15 days, taken Rs.20,000/- from PW6 for returning loan of Credit Society by promising that it would be returned after his son in Military arrives on leave. However, said amounts were not returned to PW6 inspite of repeated demand made by PW6 either by phone or by personally for return of said 2 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 3 appeal 200.08.doc amount.
2.2 The appellant and other co-accused after repeated insistence of PW6 for return of the money used to tell Manisha that why said amount should be returned to her father and on the contrary she should bring more amount from her father. Manisha used to insist for returning money as her father was in need. The quarrels were ensuing in between Manisha and all the accused.
Manisha apprised such happenings to her uncle PW5 Shivaji and others. About 3-4 days prior to the occurring of incident, PW6 while taking back his younger daughter PW4 Prathiba to her matrimonial house at Mumbai, had been to the house of Manisha at Basarge. PW6 then asked in-laws of Manisha and the appellant to anyhow return the amount within four days.
2.3 According to the prosecution, at about 2.30 p.m. on the day of incident another uncle of Manisha PW9 Suresh had been to the house of PW5 for apprising that a phone call was received from village Basarge that Manisha has become unconscious after sustaining fall from the cot. PW9 further told that he had asked for taking Manisha to dispensary at Gadhinglaj. PW9 thereafter went to Gadhinglaj at about 16.00 hours. PW5 received call from PW9 that Manisha brought at Gadhinglaj but found dead, taken back to Basarge by her family. PW5 alongwith PW6, sister-in-law 3 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 4 appeal 200.08.doc and other relatives went to Basarage and found that the corpse of Manisha was kept in sitting position with support of wall and a cloth was wrapped around her neck and head. PW10 Bhiva Jadhav, brother-in-law of PW6 due to suspicion raised removed said cloth and found blackened ligature mark around her neck. The said ligature mark led PW5 to the belief that Manisha was murdered by strangulating with rope. PW6 then also apprised that at 8.30 hours a phone call was received from Manisha that her mother-in-
law was quarrelling on the count of money and PW6 should pay visit but then PW6 told that as he was having urgent work at Kolhapur along with her mother, he would be coming on next day.
2.4 PW12 PHC Wadar attached at Halkarni Outpost recorded complaint Exh.59 regarding murder of Manisha lodged by PW5 narrating such matters. PW12 alongwith occurrence report Exh.60 forwarded said complaint to Gadhinglaj Police Station.
PW11 PHC Shewale on the basis of occurrence report Exh.60 registered crime for offence under section 302 r.w.34 of I.P.C.
against the appellant and his parents. PSI Bhosale of Gadhinglaj Police Station investigated the crime.
2.5 According to the prosecution, PW7 Dr. Anil Athave performed autopsy upon the corpse of Manisha sent to Primary Health Center, Halkarni Hospital and Exh.63 is notes of said 4 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 5 appeal 200.08.doc autopsy prepared by him amongst other giving cause of death as "asphyxia due to strangulation". PSI Bhosale on 22nd November, as a sequel to the statement leading to the discovery of rope made by the appellant seized the rope from his house after the appellant led panchas and police to his house and took out rope, by drawing memorandum and recovery panchanama Exhs.55 and 56 respectively. At the conclusion of investigation, PSI Bhosale submitted charge-sheet in the court of J.M.F.C. Gadhinglaj against the appellant and his parents for in furtherance of their common intention having committed murder of Manisha.
3. The appellant pleaded not guilty to the charge (Exh.26) for such offence framed against him by the learned Additional Sessions Judge at Gahinglaj after the case was committed to the Court of Sessions. The defence of the appellant was that of total denial and false implication.
4. The prosecution adduced oral evidence of 12 witnesses in support of the case in addition to the documentary evidence, which was collected and/or prepared during the course of investigation.
The documentary evidence also contains photographs of dead body vide Exh.65 and 66. The said photographs were exhibited during the course of trial after the same were shown on behalf of the appellant to the prosecution witnesses. Since there was no eye-
5 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 6 appeal 200.08.doc witnesses for the crime in-question, prosecution rested upon the circumstantial evidence.
5. The trial court after appreciation of the prosecution evidence came to the conclusion that by the evidence adduced, the prosecution has established circumstances referred in the judgment and the said circumstances considered in light of non-explanation on the part of the appellant leads to the sole inference of the guilt of the appellant in murdering his wife by strangulating her.
ig In consonance with such conclusion arrived, the trial Court convicted and sentenced the appellant and acquitted the other co-accused.
6. Ms. Rohin Dandekar, the learned appointed counsel for the appellant by meticulously taking us through the prosecution evidence strenuously contended that hardly the prosecution evidence established any decisive circumstances for coming to the conclusion of the same within themselves forms a formidable chain leading to the inference of the guilt of the appellant. It was urged that since the said circumstances failed to lead to such an inference, non-explanation on part of the appellant regarding said circumstance and out of them recovery of rope at the behest of the appellant or the death having ensued in his house is insignificant.
It was contended that duty to give explanation arises only in the event of the circumstances established by the prosecution leading 6 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 7 appeal 200.08.doc to sole inference of the guilt of the culprit/accused. It was contended that merely non-explanation on part of the appellant about the said circumstances cannot be made basis for his conviction. It was urged that the trial Court erred in acting accordingly and particularly by ignoring the facts that there were other two inmates in the said house, i.e., acquitted accused. It was urged that recovery of rope at the behest of the appellant admittedly while in police custody can be due to several reasons.
The prosecution further failed to prove the link of the said rope with the death of Manisha.
7. It was further contended that in such state of affairs, the case of the appellant being on par with other acquitted accused upon the same set of evidence the trial court ought to have acquitted the appellant alike co-accused. It was contended that it is well known that different persons behave in different manner in particular situation and hence merely because the appellant behaved in particular manner after the death of his wife could not be construed as a conduct of guilty person as erroneously concluded by the trial Court. It was urged that merely because the loan taken by the acquitted accused-father of the appellant was not returned and on the said count quarrels were ensued in between the deceased and the other family members, by itself cannot be said to be a motive sufficient enough to commit murder 7 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 8 appeal 200.08.doc of wife/daughter-in-law. It was urged that the prosecution evidence also reveals that the deceased was suffering from epilepsy. It also reveals that she had not got any issue out of said wedlock. It was urged that said two aspects also denotes the possibility of death having occurred for any other reason other than as canvassed by the prosecution. It was thus contended that the circumstantial evidence lead by the prosecution being not full proof, i.e. capable of leading to the sole hypothesis of the guilt of the appellant, alike other accused, he deserves to be acquitted or atleast deserves to be given benefit of doubt by allowing the appeal preferred by him.
8. Aforesaid submissions were refuted by the learned APP Mr. P.S. Hingorani for the State by submitting that the prosecution through the evidence of PW7 has definitely established the link of the rope recovered at the behest of the appellant with death of the deceased. It was urged that the circumstance of the recovery of rope at the behest of the appellant being available only against the appellant and not against the other co-accused, the case of the appellant cannot be said to be on par with said acquitted accused against whom there was no such direct circumstance nailing them with the death ensued. It was urged hence neither any error was committed by the trial Court in acquitting the said accused nor the appellant can be said to be entitled for similar benefit. It was urged that the trial court has given cogent reasons regarding 8 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 9 appeal 200.08.doc establishing of the circumstances relied and significance of non-
explanation to such circumstance on part of the appellant. It was urged that no interference is warranted with the reasoned judgment given by the trial Court and the appeal being devoid of merit be dismissed.
9. Thoughtful considerations were given to the submissions advanced by both the sides and record of the case was carefully examined in order to ascertain the merit from the same.
10. At the first blush, it can be said that since there is no eye-
witnesses for the crime in-question and the case is resting upon the circumstantial evidence, as per the settled legal position regarding such type of cases, we find it necessary to assess the prosecution evidence to ascertain whether the circumstances relied by the trial Court, i.e. (1) Deceased had met with homicidal death.
(2) The appellant was having motive for commission of crime.
(3) The appellant having all opportunity to commit crime.
(4) Recovery of rope.
(5) Conduct of the appellant.
(6) Giving false explanations.
9 of 32
::: Downloaded on - 06/01/2014 03:30:26 :::
10 appeal 200.08.doc
were duly established by the evidence adduced and thereafter to ascertain whether the said circumstances within themselves form a formidable chain leading to sole inference of the guilt of the appellant
11. In the said process now, firstly, taking into consideration the 1st circumstance relied by the trial Court that the deceased had met with homicidal death, the trial court placed reliance upon the evidence of PW2 Jivan Kumar, panch for Inquest panchanama Exh.51 and so also upon the evidence of the first informant-uncle of deceased PW5 Shivaji, father of deceased PW6 Sambhaji, uncle of deceased PW9 Suresh and maternal uncle of deceased PW10 Bhiva and so also upon the evidence of PW7 Dr. Ani for coming to the conclusion that there was ligature mark encircling neck of the deceased. Further reliance was placed upon the evidence of PW7 for coming to the conclusion that deceased met with homicidal death.
11.1 Out of the above referred witnesses, now firstly considering the evidence of uncle of deceased PW9 Suresh, his evidence reveals that after receipt of call from Shivram Chougule-
acquitted accused no.2 that Manisha had fallen from cot and lost consciousness and they are taking to Manisha to the Govt. Hospital at Gadhinglaj, PW9 alongwith nephew had been to said Hospital at 10 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 11 appeal 200.08.doc Gadhinglaj. Significantly, it reveals that though both of them waited at said hospital, Manisha was not brought in said hospital and they started searching her in other hospitals. It also reveals that Manisha was in the Ambassador car and the appellant and his parents were standing outside in front of Neora Hospital. It reveals that acquitted accused No.2 informed him that Doctor told them that Manisha had sustained head injury and hence she died and they are taking her body to Basarge and also asked him to accompany them. It reveals that PW9 told that he will inform to other family members and they will come at Basarge. The further part of his evidence reveals that he returned to Hirlage and thereafter all the relatives came to Basarge.
11.2 Now further part of the evidence of PW9 and so also relevant part of the evidence of PW5, PW6 and PW10 reveals that accordingly all of them had been to Basarge. It further reveals that at the said place they had found corpse of Manisha kept in a sitting position with support of wall with a cloth placed around head and neck. It further reveals, that in view of suspicion developed regarding the cloth covering head and neck of Manisha, PW10 removed the said cloth and they saw ligature mark around the neck and throat. It reveals that though the arrangement for funeral of the deceased was made by the family members of the appellant, they had not allowed for funeral and had been to Halkarni Outpost 11 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 12 appeal 200.08.doc and PW5 lodged complaint (Exh.59). After careful scrutiny of the aforesaid part of evidence of the above referred witnesses, we do not find that said evidence is shattered in any manner and particularly of having seen ligature mark around the neck and throat of the Manis. We further find that the evidence of PW5 to the aforesaid extent is well corroborated by the complaint Exh.59 lodged by him at the Halkarni Outpost with PW12. Without discussing other aspects revealed from the evidence of PW9 at this place, due to the same being not relevant for the circumstance under discussion, it can be added that the above referred evidence of said witnesses is further found corroborated by the evidence of PW7 Dr. Anil, who had performed autopsy upon the corpse of Manisha which was referred by the Halkarni Police to the Hospital.
11.3 After perusal of the evidence of PW2, the panch for inquest panchanama, we do not find case being different, as his evidence in terms reveal that at the time of inquest held during the course of investigation and to which he was party, he had noticed such a ligature mark around the neck and throat of Manisha. Apart from the evidence of PW2, in the said respect being not shattered during the course of trial, we find that the same is duly corroborated by recitals in the inquest panchanama. As a cumulative effect of the aforesaid evidence, we are unable to find any fault with the trial Court for coming to the conclusion that the 12 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 13 appeal 200.08.doc prosecution by the said evidence has duly established of existence of ligature mark around the neck and throat of the deceased.
11.4 Now reverting back to the evidence of PW7, his evidence reveals that while attached to Halkarni Hospital upon request of Halkarni Outpost of Gadhinglaj Police Station on 19 th November, 2004 in between 10 a.m. to 11.45 a.m., he had conducted autopsy upon the corpse of Manisha sent by Halkarni Outpost of Gadhinglaj Police Station . It reveals that during external examination he found following 9 injuries on the corpse of Manisha :
1. Ligature mark encircling the whole neck as a depression, brown in colour, dry hard. Along the edges abrasions present. Size about 13" in length and one inch in breadth.
2. Pattern of rope is imprinted on the neck as a groove.
3. Face is cyanosed, patechiae in the eyelids, conjuctiva blood shot eyes, bruised bitten tongue.
4. Bleeding from both ears present.
5. Subcutanuous tissues under the ligature mar ecchymosed.
6. Injury to the neck muscles present.
7. Fracture of laryngeal cartilage, tracheal ring 13 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 14 appeal 200.08.doc present.
8. Abrasion over both feet.
9. Planter aspect, more on heel.
11.5 It further reveals that during internal examination of Thorax, he found fracture of laryngeal cartilage, fracture of tracheal ring. It reveals that both lungs were found intact with patechial haemorrhagic spot. It reveals that tongue was found bitten in teeth and undigested food 'Dal Bhat" found in stomach.
11.6 Significantly enough PW7 gave opinion that death was caused due to asphyxia due to "strangulation". PW7 vouched for correctness of autopsy notes Exh.63 issued by him and Dr. Mrs. Kumbhar who was alongwith him while conducting autopsy. He also vouched for correctness of advance certificate of cause of death of Manisha Exh.64 given by him. Notably, his evidence reveals that he was shown rope seized by the police during the investigation. He deposed that ligature mark around neck of dead body were possible due to said rope.
11.7 Upon close scrutiny of evidence of PW7 we find that though he was searchingly cross-examined, during the cross-
examination regarding necessity of reading of inquest panchanama or taking of photographs or washing of body is necessary before 14 of 32 ::: Downloaded on - 06/01/2014 03:30:26 ::: 15 appeal 200.08.doc commencing postmortem, no other significant material was elicited during said phase of cross examination. The perusal of cross-
examination reveals that he was questioned regarding the common features in a case of hanging and strangulation and having admitted that patechial haemmorahge was common in asphyxia death except death in burning cases. He also admitted that in a case of strangulation, the fracture of hyoid bone is rare while in hanging, hyoid bone may fracture at greater cornea of hyoid bone.
11.8 The learned defence counsel for the appellant by taking us through the answers elicited during the cross-examination strenuously urged that the said answers also denote the possibility of deceased having met death due to hanging and not due to strangulation. It was canvassed that the deceased might have committed suicide by hanging herself in the house. It was contended that the trial Court ignoring the said aspect erroneously arrived at the conclusion of the deceased having met with homicidal death.
11.9 After careful perusal of the deposition of PW7, we do not find any substance in said submission canvassed. The evidence of PW7 does not reveal any admission either directly or indirectly elicited during the cross-examination leading to the conclusion of the deceased having died due to hanging. It can be further added 15 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 16 appeal 200.08.doc since in both type of death, i.e., due to hanging or due to strangulating, asphyxia being a common cause, is bound to show some symptoms/features in such type of death. However, the difference in symptoms in both type of death were brought on record during the cross-examination by defence and/or pointed out by PW7 while answering the questions put to him. PW7 having an opportunity to examine the corpse and observe symptoms and having opined that the death was due to throttling and his said opinion having remained unshattered after cross-examination, it will be difficult to give any credence to the contrary submission canvassed on behalf of the appellant. Needless to add, no such inference is permissible upon some of the common features from both type of death pointed out during the cross-examination. Such inference is inevitable as further symptoms distinguishing the death of Manisha being due to strangulation were found by P.W.7 during autopsy and deposed during evidence negativing the possibility of death of Manisha being due to hanging. Since the possibility and probability are all together different things and the evidence of PW7 establishes that the death of Manisha was due to strangulation and consequently homicidal and the same being also supported by other evidence referred hereinabove, we are unable to find any fault with the trial Court in coming to the conclusion of Manisha having met with homicidal death after discussing all relevant aspects in para Nos.10 and 12 of the Jugement of the trial Court.
16 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 17 appeal 200.08.doc
12. Now taking up 2nd circumstance of the appellant possessing motive for the commission of crime in-question, the reference to the evidence of PW6 Sambhaji, father of victim Manisha reveals that original accused No.2 Shivram, father-in-law of the Manisha, after marriage in the month of June, had taken a loan of Rs.15,000/- from PW6 for erecting a Gobar Gas Plant with assurance of returning loan after one year. It further reveals that again in the month of September, for a period of 15 days, he had taken a loan of Rs.20,000/- from PW6 for returning loan of credit society from PW6 and promised that it would be returned after arrival of his son serving in Military on leave. It reveals that said amounts were not returned to PW6 inspite of repeated demand made by phone or by personal visit. It further reveals that the deceased was insisting for refunding said amount and there used to be quarrel upon said issue. It reveals that Manisha reported said matters to PW6. The evidence of PW6 also reveals that while taking back his daughter PW4 Prathibha, who had been to his house for Diwali Festival, he had been to Basarge alongwith her to see Manisha and then he had told the appellants and other accused to return money anyhow in four days that he was in need of money.
The corroboration to the said evidence of PW6 is found from the evidence of PW4. The evidence of PW4 additionally reveals that the appellant then working at Bombay also had been to said house 17 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 18 appeal 200.08.doc at Basarge.
12.1 The evidence of PW5 further reveals that on the day of incident in the morning Manisha had given a call that her mother-
in-law was quarreling since morning and PW6 should come at her place. It reveals that PW6 then told her that he was going to Kolhapur and alongwith his wife he will come on next day. After his return from Kolhapur, he learnt about the death of Manisha and went to Basarge. The corroboration from the evidence of PW6 and PW4 is found to the evidence of PW5 Shivaji Shinde. The evidence of PW5 Shivaji is further found corroborated from such matters stated by him while lodging complaint Exh.59. After careful scrutiny of all the said evidence, we find that their such evidence of ensuing of quarrels in between the members of family of the appellant and Manisha and so also a day prior to the incident PW6 having insisted for return of money has remained unshattered.
12.2 Having regard to abovestated evidence of PW6, PW4, and PW5 and particularly the aspect of quarrel ensuing upon the issue of return of money and insistence made by PW6 a day prior to the incident for returning said amount, we do not find that any error was committed by the trial Court in coming to the conclusion that by the said evidence prosecution has established that the appellant was having a motive for commission of the crime. It is indeed true 18 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 19 appeal 200.08.doc that as pointed out by the learned defence counsel the said loans were taken by the father of the appellant, i.e., original accused No.2 and not by the appellant. However, the said aspect clearly appears to be immaterial as the evidence denotes that said loan was not taken for any personal purpose, but for a family purpose, i.e., erection of Gobar Gas Plant and return of loan taken from the Society. It can be further added that the evidence surfaced also does not reveal that the appellant had separated from his father and on the contrary the evidence denotes though he was working for last 2-3 months at Bombay, his wife was residing at Basarge.
12.3 The learned defence counsel thereon has tried to canvass that there was no denial on part of the family members of the appellant to return the money, the same cannot be regarded as an motive sufficient enough to commit heinous crime of committing the murder of wife. After considering the evidence of PW6, PW4 and PW5 in proper perspective, we are unable to agree with said submission. We find that the evidence of abovereferred witnesses in terms reveal that there were quarrels in between Manisha and the members of the family of the appellant on the issue of return of the said money. It reveals that the members of the family of the appellant were telling Manisha that why said amount should be returned to her father. It is also well known that the motive may differ from person to person. Similarly, absence of motive and 19 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 20 appeal 200.08.doc adequacy of motive again being altogether different thing, we do not find any merit in the submission canvassed. Resultantly, we find that no error is committed by the trial Court in coming to the conclusion that by the said evidence the prosecution has established the above referred 2nd circumstance.
13. In addition to the aforesaid, we also find that the evidence of PW4 also denotes that the appellant during his stay in Mumbai was residing at the house of PW4.
ig It reveals that while coming to her parental home for Diwali festival, PW4 had asked the appellant whether he would be coming, but he denied on the ground that leave was not granted to him. It reveals that PW4 was to return to Mumbai on 16th November, 2004 and accordingly alongwith her father PW4 has proceeded to Marguti as husband of her sister was to accompany her. It reveals that on their way they had been to Basarge to meet Manisha. It reveals that then she had found the appellant had returned from Mumbai to Basarge.
The appellant then had told her of having come casually. All the said unshattered evidence within itself further establishes that the appellant during relevant period was residing at Bombay and returned to Basarge and was staying at his father's place. The said evidence also denotes the prosecution having established 3rd circumstance of the appellant having all the opportunity to commit the crime in-question occurred at Basarge.
20 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 21 appeal 200.08.doc
14. Now taking up 4th circumstance of the recovery of the rope at the behest of the appellant, the evidence of panch PW3 Rajaram reveals that on 22nd November, 2004 at about 9.00 a.m., he was called Gadhinglaj Police Station and at the said place the appellant in the custody of the police stated that the rope was concealed by him in second room of his house in cupboard and he is ready to produce the same. It reveals that thereafter the appellant led PW3, another panch from Halkarni and police staff to his house and produced the rope from the cupboard in second room of his house. It reveals that Exh.55 and 56 are respectively memorandum and seizure panchanama of the said events occurred. After careful scrutiny of evidence of PW3, we find that nothing was elicited during the cross-examination rendering such evidence of PW3 either unbelievable or improbable. Without enlisting other answers given by PW3 in the cross-examination we find that none of the answer has effect of destroying his said evidence and on the contrary his evidence appears to be cogent and convincing. The evidence of PW3 also found well supported by the matters stated in memorandum panchanama Exh.55 and seizure panchanama Exh.56.
14.1 In the context of circumstance under discussion, the reference to the evidence of PW7 Dr. Athave reveals that during the 21 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 22 appeal 200.08.doc examination-in-chief, he was shown the rope article seized by the police under seizure panchanama Exh.56. PW7 has deposed that ligature mark found around the neck of the dead body was possible due to said rope. We find that the said opinion given by PW7 has also remained unshattered during the cross-examination.
14.2 The learned counsel for the appellant tried to assail the aforesaid evidence by submitting that the prosecution having not examined the investigating officer, the same creates infirmity in the evidence of PW3. We are unable to find any substance in the said submission canvassed as it is settled principle that at criminal trial quality of the evidence of the witness matters and not the quality of the witnesses examined at the trial or in other words the law does not require plurality of the witnesses for proving a particular fact.
Secondly, it was submitted that the prosecution having not adduced any evidence of finding of blood marks, skin marks upon the said rope recovered at the behest of appellant, the prosecution has failed to prove nexus of said rope with the crime in question and as such the entire evidence of discovery and seizure is inconsequential. Though apparently the submission appears to be attractive, upon the close scrutiny of the evidence, we find the same being devoid of any merit. We are of such a considered opinion because though the evidence reveals the existence of ligature mark upon the neck of deceased, we are unable to find any admission 22 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 23 appeal 200.08.doc secured from any of the witnesses indicating that the blood has oozed out of the said mark and/or skin was peeled of from the same.
Having regard to the said aspect, the submission advanced cannot be given any undue significance. Now with regard to the nexus of the said rope with the crime in question, after taking into consideration the fact that the same was discovered as a sequel to the statement made by the appellant and PW7 having given opinion that injury caused to the deceased was possible by the said rope, we find it difficult to accept that the prosecution has not established nexus of the said rope with the crime inquestion. It can be further added that it is settled legal position that a fact can be established either by direct evidence or by the circumstantial evidence leading to inference of existence of such a fact.
15. Now taking up the 5th circumstance of the conduct of the appellant in the entire episode being not only consistent with the inference of his guilt and inconsistent with the inference of himself being innocent, the trial Court has discussed the various facets of the conduct of the appellant as established by the prosecution witnesses in paragraph Nos.14 and 15 of the judgment.
Without detailing each of the said facets, we find that the entire discussion made by the trial Court is based upon the evidence which has surfaced at the trial. As pointed out by the trial Court the evidence of PW8 Dr. Gajanan reveals that on the day of incident 23 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 24 appeal 200.08.doc at about 1.00 p.m., son of Ramchandar namely Shivaji Chougule had called him to the house of the appellant by telling that daughter-in-law of his uncle was unconscious. It reveals that at the said house PW8 found one lady patient lying on the cot and after examination, he told the relative of patient that she was no more. It reveals that said relatives insisted him to give injection and therefore he has given injection of Taxi and Hetnesol. It reveals that he asked the said relatives to take said lady to the hospital. After perusal of the cross-examination of PW8, we do not find that core of his evidence that at about 1.00 p.m., said lady was dead and after informing relatives he was asked by them to give her injection is shaken in any manner.
15.1 Considering the persons present in the house of the appellant, it is crystal clear that the said relatives could not have been anybody else other than the appellant and his parents. The insistence of the appellant and his relative to give an injection, even after PW8 telling them that she was dead, not only shows unnatural conduct on part of the appellant, but speaks in volume about the purpose for which PW8 was asked to give injection, i.e. for making a show she was given a treatment.
15.2 The evidence of PW9 Suresh uncle of deceased Manisha reveals that on a phone call received from the father of the 24 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 25 appeal 200.08.doc appellant, he was informed that Manisha had fallen down from cot and lost her consciousness and was being taken to Government Hospital at Gadhinglaj and PW9 should come at the said place. It further reveals that though PW9 reached Government Hospital at Gadhinglaj, Manisha was not brought to the said Hospital. It reveals that after searching in the Doctor's Colony they found Manisha was in Ambassador car and appellant and acquitted accused were standing outside in front of Neora Hospital. It reveals that thereafter PW9 was told that Doctors had told Manisha had sustained head injury and therefore she died. All the said evidence of PW9 is not only remained unshattered, but is also found duly corroborated by the corroborative evidence of his other brothers, i.e. PW5 and PW6. The said evidence considered on the backdrop of PW8 of having told the relatives of the said lady to take her to Government Hospital clearly indicates unnatural conduct on part of the appellant and other acquitted accused. Such a conclusion is inevitable as the said evidence in terms reveal that Manisha was not taken to the Government Hospital, but probably to private hospital. The falsity of the matters told to PW9 is apparent from the fact of Manisha having not sustained any head injury, but she was having injury on her neck.
15.3 Similarly, the evidence of the witnesses discussed while making the discussion for the 1st circumstance also indicates that 25 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 26 appeal 200.08.doc when all the relatives of Manisha, i.e., PW5, PW6 and PW10 has been to the house, they had found her head and neck covered with the cloth and due to suspicion arisen, the same was removed by PW10 and thereafter they had noticed a ligature mark around her neck. The said evidence itself denotes the conduct on part of the appellant of making false propaganda of Manisha having sustained head injury and clever attempt to hide an injury on neck.
15.4 Considering the theory advanced on behalf of the appellant to the relatives of Manisha that she had become unconscious due to sustaining a fall from Cot, on backdrop of Manisha having not sustained head injury, but having sustained a ligature mark clearly indicates that the appellant,and his relatives were trying to hide the true reason behind Manisha sustaining injury at her neck.
16. We also find an additional circumstance from the evidence of PW4, which indicates that PW4 while coming for Diwali festival to his father's house had asked the appellant whether he is coming and then the appellant has told her that he was not coming for want of leave. The said conduct of the appellant considered in light of the further evidence of PW4 that while returning from matrimonial house and being to the house of the deceased, she had found him present in the said house.
26 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 27 appeal 200.08.doc
17. Now considering the record of examination of the appellant under section 313 of Cr.P.C., we find that the appellant had failed to give any cogent explanation to any of circumstance which were put to him during said examination, much less any explanation to his aforesaid conduct except last facet of the conduct discussed hereinabove. Similarly we also find that the appellant failed to give any explanation to the other incriminating circumstances other than of his unnatural conduct established by the prosecution and discussed hereinabove.
18. In addition to the aforesaid, we find that apart from the appellant having not explained any of the incriminating circumstances appearing against him, his unnatural conduct established by the prosecution and so also tenor of his defence in the episode also indicates that apart from non-explanation of the incriminating circumstances appearing against him in the prosecution evidence since beginning, the appellant/his relatives were trying to advance a false explanation regarding true cause of death of Manisha, i.e., herself having become unconscious due to sustaining a fall from Cot. The aforesaid discussions also reveals that explanation tried to advanced by the appellant is false. Giving of false explanation amounts to an additional circumstance against the appellant.
27 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 28 appeal 200.08.doc
19. Now considering the effect of the above stated circumstances established by the prosecution, we find that the said circumstance within themselves forms a formidable chain leading to the sole inference of the guilt of the appellant and such an inference is inevitable as the prosecution having duly established of Manisha having met with homicidal death. There was calculated attempt on part of the appellant and his family member to make a false show of the cause of her death being otherwise. The evidence of PW8 in said respect and so also giving of false information to the relatives of the Manisha is self-eloquent in said respect. It can be further added that the evidence of PW4 duly indicates that the appellant had returned to his house at Basarge. The evidence surfaced on the record pointed, denotes that the death of Manisha had taken place in the house of the appellant. The appellant on his part has not brought any material on record indicating that he was not present in the said house, when his wife has met death. On the contrary, there is otherwise evidence available in the shape of recovery of rope used as a weapon of offence at the behest of the appellant. All the aforesaid circumstances considered in the light of the provisions of Section 106 of Evidence Act, which runs as under :
"When any fact is especially within the
knowledge of any person, the burden of
proving that fact is upon him"
28 of 32
::: Downloaded on - 06/01/2014 03:30:27 :::
29 appeal 200.08.doc
necessitated the appellant to give cogent explanation regarding the circumstances in which his wife met with death in his house. The failure of the appellant to discharge the said burden leads to no other conclusion than the appellant being perpetrator of the murder of his wife.
20. In the premises aforesaid we do not find any substance in the submission canvassed by the learned counsel for the appellant that no duty was caste upon the appellant to give an explanation as other circumstances are incapable of reaching to the conclusion of guilt of the appellant. Inview of the evidence of PW3, recovery panch having remained unshattered, we are unable to accept the said submission canvassed that of recovery of the rope at the behest of the appellant can be for several reasons other than himself being perpetrator of the crime. Though we are in agreement with the submission canvassed that in the same set of circumstances different person may behave in different manner still considering the manner in which the appellant has behaved we are unable to pursuade ourselves to come to the conclusion that his such behaviour was for any other reason other than himself being perpetrator of the crime.
21. Now reverting back to the further submission of the 29 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 30 appeal 200.08.doc learned counsel for the appellant and particularly that of death of Manisha having ensued for some other reasons other than homicidal one as she was suffering from epilepsy and not got issue even though she was married in the year 2003, we find absolutely no merit in the said submisison canvassed. We are of such a considered view as nothing has surfaced on the record for coming to the conclusion that at the time of death or soon prior to it, Manisha was suffering from epilepsy. In the said context, the reference to the evidence of PW4 reveals that though PW4 admitted Manisha was suffering from epilepsy during her child-hood, she further reveals that since PW4 had understanding, Manisha had not sufferred from epilepsy. PW4 in no uncertain terms denied that Manisha had an attack of epilepsy for 2-3 times. Even overlooking the said denial made by PW4 on the count of PW4 being her sister still we do not find any other material on the record justifying the submission canvassed of Manisha suffering from epilepsy.
22. Similarly, after considering the passage of time, i.e., hardly about since the day of marriage till occurrence of incident, we find it extremely difficult to perceive that Manisha could be said to be frustrated due to having not got a child. Resultantly, we find that there is absolutely no material on record denoting any possibility of the death having occurred for any other reason other than the same being homicidal as duly established by the 30 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 31 appeal 200.08.doc prosecution. It is indeed true that as pointed out by the learned counsel for the appellant, there were other family members in the house in which death inquestion as occurred. It is also true that they were also charge-sheet and prosecuted at the trial. However, having due regard to the significance of the evidence of recovery of rope kept concealed by him in the cupboard, we do not find any error committed by the trial Court in concluding that the case of the appellant was not on par with the case of other acquitted accused. The said circumstance closely nailing the appellant with the murder of Manisha being not available against the other acquitted accused, we find no error was committed by the trial Court in acquitting the same. We also find that having decisive nature of said circumstance, the case of the appellant can never said to be par with said acquitted accused, nor he is entitled for any benefit as canvassed or otherwise.
23. Resultantly, we do not find any merit in the appeal and dismiss the same.
24. Registry to furnish the copy of the aforesaid judgment to the appellant through the Superintendent of Prison at which he is lodged.
31 of 32 ::: Downloaded on - 06/01/2014 03:30:27 ::: 32 appeal 200.08.doc
25. We appreciate the enthusiasm and preparation made by the learned appointed counsel for the appellant in arguing the Appeal and assisting us for arriving at a conclusion, we quantify her fees to the extent of Rs.2200/-.
[ P. D. KODE, J.] [ SMT. V.K.TAHILRAMANI, J.]
32 of 32
::: Downloaded on - 06/01/2014 03:30:27 :::