Bombay High Court
Mohan Ranganathan vs State Of Maharashtra on 15 March, 2011
Author: P.D. Kode
Bench: A.M. Khanwilkar, P.D. Kode
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 231 OF 2008
Mohan Ranganathan,
Age 48 years,
Residing at H.P. Nagar East,
Building No.36, Flat No.302,
Chembur, Mumbai-74,
Jail - Nashik,
At present Accused in
Nashik Road, Central Prison. .. Appellant
(Original Accused)
.. Versus ..
1. State of Maharashtra,
(Through R.C.F. Police Station,
Chembur, Mumbai.)
2. The Senior Inspector of Police,
R.C.F. Police Station,
Chembur, Mumbai. .. Respondents
(Complainant)
..........
Shri Sushan Kunjuraman, Advocate for the appellant/accused,
Shri J.P. Yagnik, APP for respondent/State.
..........
CORAM : A.M. KHANWILKAR & P.D. KODE, JJ.
DATED : 15.03.2011
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JUDGMENT (PER : P.D. KODE, J.)
1. The judgment and order dated 4th March 2008 passed by 2nd Ad-hoc Additional Sessions Judge, Sewri convicting the appellant-
accused in Sessions Trial No.303 of 2007 for murder of his wife Geeta on 12th/13th June 2006 and sentencing him to suffer imprisonment of life with a fine of Rs.3,000/- and in default undergoing R.I. for one year is subject matter of present appeal.
The said session trial has arisen ig out of charge sheet filed by PW10- P.I. Suresh Ramchandra Nirmal of R.C.F. Police Station as a result of investigation of C.R. No. 164/2006 registered with said Police Station upon first information report (Exh.33) lodged by PW9- P.S.I. Vasant Nagrale of the same Police Station on 26th June, 2006.
2. The facts in brief regarding said prosecution and conviction are as under :
The deceased Geeta- daughter of Rangnathan Chinnatambi- PW3 of Cuddalore District, Tamilnadu had married appellant on 8th June, 1987. After the marriage, the couple was residing at room no.302, Vashi naka, Chembur, Mumbai-74. Rema-
PW.7 - a female child was born to them on 22nd July, 1988. Geeta, during her yearly visits to house of her parents, used to complain about ill-treatment and harassment by the appellant.
2.1 PW9 PSI Vasant on night duty on 12th /13th June, 2006 at ::: Downloaded on - 09/06/2013 17:06:00 ::: 3 RCF Police Station had to rush to Shitla Hospital, Chembur, due to receipt of message at about 2.50 hours that a lady by name Geeta brought by her husband-appellant and neighbours for treatment was found to be dead by the Doctors after her examination. PW10 while drawing inquest panchanama Exh.9 of the corpse of Geeta had not noticed any other injury on her person other than teeth mark upon her lower lip.
2.2 The appellant then during enquiry disclosed that his wife was suffering from blood pressure, headache, giddiness and was vomiting. On 12th June, 2006 at 1800 hours he had got her examined from private Doctor DW1 Jyoti Kunjur and had given her Omez and Domestrol tablets as advised and thereafter she had some relief. He had to again called DW1 for examination as at about 22.30 hours Geeta again became unwell. DW1 after examination told that she has been unconscious and should be rushed to the hospital. He had taken her to Inlak Hospital. As accommodation was not available at said hospital, he brought her to Shitla Hospital wherein after examination doctor declared that she was dead.
2.3 PW8 Dr. Sunial Jawale and Dr. Bagul attached with Rajawadi Hospital after post mortem examination of the corpse sent to said Hospital by PW9, had informed cause of death as "Asphyxia due to throttling (unnatural)" and told that written post mortem report would be handed over later on. Siddharth, brother of the deceased who had been from Madras had taken corpse to ::: Downloaded on - 09/06/2013 17:06:00 ::: 4 native place for last rites. The post mortem notes (Exh.25) received from Rajawadi Hospital on 16th June, 2006 revealed cause of death as "Asphyxia due to throttling". Thereafter father of the deceased PW3, her married sisters Raji Sundaram (PW5) and Sita Maykumar all from Chennai had informed RCF Police Station that appellant had been harassing deceased and had murdered her by throttling.
Such information was given by posting letter Exh.17.
2.4 PW9 by narrating such matters lodged first information report against the appellant upon which said crime for the offence of murder was registered at RCF Police Station. PI Suresh PW10 of said Police Station after learning about cause of death from PW9, recorded statement of DW1 Dr. Jyoti who had examined and also accompanied deceased while being taken to Shitla Hospital. PW10 received P.M. Notes (Exh. 25) on 16th June, 2006. PW3 and Sundaram Gopal (PW4), husband of sister of deceased, on 22 nd June, 2006 sent telegram to Police Station that the appellant used to ill-treat deceased and had murdered her. PW3 also sent the letter (Exh.17) by post to the Police station casting doubt about the appellant having committed murder of the deceased.
2.5 PW10 after registration of the offence, sealed the house of appellant on 27th June, 2006 when he found that the same was locked. On 28th June 2006 he recorded statements of PW3 and PW4 when they had been to Police Station. He sent ATI Vakhare at Cuddalore, Tamilnadu in search of the appellant. He recorded statements of persons from the office at which appellant was ::: Downloaded on - 09/06/2013 17:06:00 ::: 5 working and so also of Dr. Bhide, who had treated deceased in May, 2006. He recorded the statements of Rema - PW7 on 30th July,2006.
He arrested the appellant on 14th August, 2006 when he had been to Police Station after withdrawing application for anticipatory bail preferred by him.
2.6 After completing the investigation, which included drawing of memorandum and discovery panchanama respectively Exh.14 and 35 in presence of panch Radhakrishna PW1 and Dinesh PW2 in respect of voluntary statement made by the appellant of pointing the place in his house at which the deceased have vomited, taking of the photographs of said spot through photographer by removing seal put earlier upon said house by the police and recording statements of said photographer, and so also of Dr.Sachin Arun Taware PW6 doctor from Shitla Hospital, of neighbour of appellant who has accompanied him for taking deceased to hospital i.e. Shriniwas Kolladi DW2 and of one Reddy;
P.W.10 submitted the charge-sheet in the Court of Additional Chief Metropolitan Magistrate, 11th Court, Kurla, Mumbai on 25th November, 2006 against the appellant for offence of murder of his wife.
3. After committal of said case to the Court of Sessions, the appellant pleaded not guilty to the charge for the offence of murder at (Exh.3) framed by the trial Court against him on 26th June 2007.
The prosecution examined 10 witnesses so far referred at the trial.
::: Downloaded on - 09/06/2013 17:06:00 ::: 6At trial the prosecution sought permission from court to cross examine daughter of deceased- PW7 hostile on the count of herself having suppressed the truth and after receiving such permission had cross-examined her. The prosecution also placed reliance upon several documents which were prepared during the course of investigation. Out of the said documents inquest panchanama (Exh.9), panchanama regarding sealing of the house of the appellant dated 27th June 2006 at Exh.10, panchanama regarding opening of the said seal and resealing the said house after giving articles of daughter to the appellant and his daughter dated 30th July 2007 (Exh.11) were admitted by the appellant during the course of the trial.
4. The appellant during his examination under Section 313 of Cr.P.C. with regard to the incriminating circumstances appearing in the prosecution evidence put to him stated that evidence of PW3 that deceased during her visits to parental house made complaint of ill-treatment and harassment against the appellant and used to weep was false. He also stated that evidence of PW4 that deceased used to make complaints against him that he was not returning to the house during night hours and he used to consume liquor was false. He also claimed that evidence to such an effect given also by PW5 Raji was also false. With regard to the remaining circumstances put to him, he either admitted the same being true or claimed to be unaware of the relevant facets.
::: Downloaded on - 09/06/2013 17:06:00 ::: 7The appellant claimed that his father-in-law PW3 has requested him for effecting funeral of the deceased at his native place but he had not agreed and taken the dead body from the house of his father-in-
law and had performed last rites at the native place of the appellant. He claimed that due to the same, P.W.3, his brother-in-
law P.W.4 and sister-in-law were annoyed and deposed against him.
5. The appellant examined Dr. Jyoti-DW1 and Mr.Kollate Shriniwas-DW2 i.e. the person who had accompanied him to Shitla Hospital while admitting Geeta in support of his defence of false implication.
6. The trial Court after appreciation of the evidence surfaced at the trial came to the conclusion that the prosecution has proved that the appellant committed murder of his wife Smt. Geeta by intentionally or knowingly causing her death by throttling. The trial Court observed that PW3 Ranganathan has explained the cause for occurring of delay in lodging report. Relying upon the decisions pointed out by the prosecution the trial Court accepted contention of the prosecution that Geeta having died while in custody of the appellant, it was necessary for the appellant to explain about occurring of such unnatural death of his wife. Similarly relying upon other decisions pointed by the prosecution, the trial Court accepted contention of the prosecution that mere relationship of the witnesses with the deceased would not be a factor affecting the ::: Downloaded on - 09/06/2013 17:06:00 ::: 8 credibility of their evidence. The trial Court, after considering the evidence of PW8 in light of certain passages from the books of medical jurisprudence and particularly matters recorded in the post-
mortem notes (Exh.25), came to the conclusion that there was no reason to disbelieve the cause of death given by PW8 as asphyxia due to throttling and accepted the same. The trial Court ultimately came to the conclusion that the appellant has strangulated his wife between 10.20 p.m. to 10.30 p.m. before he had called DW1- Dr.Jyoti. The trial Court during the reasoning given amongst other also observed that DW1-Dr.Jyoti had tried to save the appellant who was residing in the same building. The trial Court came to the conclusion that the circumstances established by the prosecution evidence were of a clinching nature and the same established a complete chain leading to inference that the appellant alone had committed the murder. In consonance with such a finding arrived trial Court convicted and sentenced the appellant as stated earlier.
7. Mr. Kunjuraman, learned Counsel for the appellant urged that the prosecution case entirely rests upon the circumstantial evidence as there is no direct evidence regarding commission of murder of the deceased. The learned counsel urged that in order to prove the complicity of the appellant in the commission of the offences, the trial Court relied upon fragile circumstances, which were not at all established by cogent and convincing evidence nor the said circumstances even accepted as it is can lead to the ::: Downloaded on - 09/06/2013 17:06:00 ::: 9 inference of guilt of the appellant for the offence for which he is convicted and sentenced. He urged that probably for the said reason the trial Court did not enlist the circumstances which according to trial Court were leading to the inference of guilt of the appellant. He urged that the prosecution evidence failed to establish any motive for appellant to commit heinous crime of murder of his wife and that too after 19 to 20 years of married life with her.
7.1 The learned counsel further urged that the trial Court failed to appreciate interested testimonies of PW3, PW4 and PW5 who were admittedly her relatives. It was urged that even their evidence fails to make out a case of the appellant having motive for committing murder of his wife. It was urged that trial Court failed to appreciate the evidence of daughter of the appellant i.e. PW7. It was urged that the trial Court failed to appreciate that in spite of prosecution being permitted to cross-examine witness called by the prosecution, miserably failed to shatter/discredit the said witness in any manner about the matters spoken by her. It was urged that in view of the same the said evidence is binding upon the prosecution and particularly the admission given by her that she was present with her mother throughout the day on 12.06.2006. It was urged that the evidence of PW7 deserves to be accepted and acceptance of the same makes it impossible to reach conclusion of guilt of the appellant for murder of his wife.
7.2 The learned counsel further urged that taking into ::: Downloaded on - 09/06/2013 17:06:00 ::: 10 account conduct of the appellant in the entire episode, as spelt out from the evidence of PW7, DW1 and DW2 i.e. of immediately taking his wife to the hospital as per advise given by D.W.1 at 10.00 p.m., also runs counter to the inference of himself being culprit. It was urged that considering the reason for which DW1 was called and she has prescribed medicine, her evidence is not liable to be rejected on the count of having not retained the prescription i.e. the flimsy ground on which the the same was discarded by the trial Court.
7.3 He urged
ig that even assuming that deceased has
sustained injury in the house of the appellant and the same has resulted in her death, still the evidence fails to make out the case that the appellant was author of the said injury. It was urged that such a conclusion is inevitable as the prosecution evidence fails to make out a case that nobody else had been in said house during the relevant period. He urged that the prosecution evidence fails to altogether exclude the possibility of author of the said injury being somebody else other than the appellant and consequently responsible for the death of the deceased caused. The learned counsel thus urged that the conviction of the appellant ordered by the trial Court is unsustainable on the basis of the evidence on record and the same deserves to be quashed and set aside by allowing the appeal and appellant deserves to be acquitted.
8. The learned APP supported the Judgment and order of conviction passed by the trial Court by stating that circumstances ::: Downloaded on - 09/06/2013 17:06:00 ::: 11 established by the prosecution through the cogent evidence clearly lead to the sole inference of guilt of the appellant as rightly arrived by the trial Court. The learned APP urged that the evidence of PW8 considered along with post-mortem notes prepared by him convincingly establishes that Geeta had died homicidal death due to the asphyxia due to throttling. It was urged that the said opinion given by PW8 had remained unshattered in spite of the cross-
examination. It was urged that evidence of P.W.8 amongst other also reveal that during autopsy hyoid bone of Geeta was found fractured. The learned APP urged that the evidence on record clearly excludes all the possibilities of such an injury being caused to Geeta for any other reason other than herself being throttled. He urged that it is undisputed or at least clearly established from the evidence on record that same must have been caused to her in the house of the appellant. He urged that the evidence adduced does not reveal any other person had visited the said house during the relevant period. It was urged that in these circumstances considering the evidence of PW3, PW4 & PW7 the same fully reveals of relation between the appellant and deceased being not at all cordial and the appellant ill-treating her. It was urged that the said facet considered on the backdrop that the evidence does not reveal the other inmate of the said house PW7 having any animus against her deceased mother, considered upon failure of the appellant to give any explanation for such injury being caused to his wife clearly leads to no other conclusion than the appellant being author of the ::: Downloaded on - 09/06/2013 17:06:00 ::: 12 said injury which had resulted in her death. It was urged that considering the nature of the injury sustained by the deceased i.e. apparently not visible to some extent also throws light upon the conduct of the appellant in taking her to the hospital being for covering nefarious act committed by him. He urged that merely because the appellant had taken his wife to the hospital will not absolve him of the liability occurred due to heinous act committed by him. It was urged that there being an inherent natural tendency of a child to save the parent merely because PW7 claimed to be throughout along with her mother will not absolve the appellant from act committed. It was urged that the said recital considered in proper perspective also cannot be said to be conclusive for coming to conclusion of appellant had not throttled his wife. Apart from the same, the same is also belied by the circumstance surfaced on the record of deceased having sustained such injury and admittedly PW7 being unable to unreveal anything about the same. It was urged that since evidence is to be appreciated, the said recital from her evidence would be liable to be excluded and exclusion of the same clearly demolishes the defence theory of evidence of PW7 absolving the appellant. The learned APP urged that considering the act committed by the appellant as established by the evidence and an attempt of the appellant to hide the same clearly reveals that he has been rightly held guilty by the trial Court for offence of murder of his wife. The learned APP thus prayed for dismissing the appeal on the count of the same being without any merit.
::: Downloaded on - 09/06/2013 17:06:00 ::: 139. We have given thoughtful consideration to the submissions advanced by both the sides and carefully perused the record. Before taking up the process of examining correctness of the findings arrived by the trial Court in light of submission canvassed, we disapprove the manner in which the trial Court dealt with a trial involving the evidence of circumstantial nature. We are constrained to say so as during various decisions delivered, the Apex Court from time to time observed that in such cases it is absolutely necessary firstly to chart out the circumstances either spelt out from evidence adduced or relied by the prosecution and then to ascertain whether the same can be said to have been convincingly established by evidence surfaced at trial. Needless to add that the decisions clearly rule that only the circumstances firmly established by cogent evidence can be taken into consideration by the court. Thus, after charting out such established circumstances further process to be taken is to determine whether said circumstances within themselves form a complete formidable chain leading to the sole inference of guilt of the accused. We find that in spite of such a settled legal position, the trial Court did not consider the present case in such a manner in as much as the judgment of trial Court fails to depict precisely the circumstances relied rather than determining whether a particular circumstance was established or otherwise. We disapprove such caliver attitude/casual approach of trial Court, more so in respect of a ::: Downloaded on - 09/06/2013 17:06:00 ::: 14 trial involving an offence punishable with capital sentence.
10. In the premises aforesaid, in normal course, on such a count alone, we would have quashed and set aside the judgment and order of conviction passed by the trial Court and remanded the matter to the trial Court for determining the same in accordance with the principles upon which the cases involving the evidence of circumstantial nature are required to be decided. However, in the instant case, the accused being in custody for a period of five years or thereabout, we deem it proper to ourselves re-appreciate the evidence and examine findings arrived at by trial Court, rather than remanding back matter to the trial Court with appropriate directions.
11. Thus, considering the evidence surfaced at the trial and the submission of the learned APP, it can be said that the prosecution has mainly relied upon the following circumstances for establishing guilt of the accused i.e.
(i) the deceased met with homicidal death in a night between 12th/13th June 2006;
(ii) the injuries leading to such a death were sustained by her in house of appellant in said night in between 10.00 pm to 10.20 p.m. i.e. before she was taken to the hospital thereafter;
(iii) the appellant, deceased and their daughter were the only persons in the house of appellant during the said period until DW1 ::: Downloaded on - 09/06/2013 17:06:00 ::: 15 Dr. Jyoti and DW2 Kollati Srinivas came in said house. Thus, the appellant had an opportunity to commit the crime;
(iv) appellant had probable motive for commission of such a crime;
(v) the defence taken by the appellant being found false.
12. After having charted out the circumstances relied by the prosecution now taking up the further process to determine whether the same has been established by the prosecution and in the said process taking up the first circumstance of the deceased having met homicidal death, no serious dispute is raised by the appellant in this regard. The said fact is duly established by the prosecution mainly through the evidence of PW8 Dr.Sunil who along with Dr.Bagwe who had performed autopsy at Rajawadi Hospital upon the corpse of the deceased sent by PW9. The evidence of PW8 with regard to autopsy reveals the following injuries :
1. Abraded contusion at lower lip 2 x 1 x ½ cm. reddish, irregular, edges, oedematous.
2. On dissection of neck, there were contusions over both sides of neck muscles, they were irregular, dark reddish. Contusion over subcutaneous tissue and contusion at post aspect of neck muscles. All contusions were irregular and dark reddish.
3. Greater cornue of hyoid bone. Fracture was seen and displaced. Attached muscles seen contused, irregular and dark reddish.
4. Subcutaneous contusion at manubrium sterni 5 x 4 cms. dark reddish.
And same being ante-mortem injuries.
PW8 further deposed of having noticed brain showing petecheal haemorrages and congested. He found reddish patchy contusion ::: Downloaded on - 09/06/2013 17:06:00 ::: 16 along with both sides of paratechal and laryangeal muscles on the thorax. He deposed that both the lungs were collapsed, congested and haemoragic patches were seen over surface of the lungs. He also deposed of viscera being preserved and having received report of chemical analyser regarding the same. Thereafter P.W.8 deposed that in his opinion cause of death was asphyxia due to throttling. He deposed that the post-mortem notes (Exh.25) is in his handwriting and bearing his signature and that of Dr.Bagul.
13. The close scrutiny of the evidence of PW8 reveals that though he was extensively cross-examined on behalf of appellant regarding his qualification, about post-mortem report prepared by him, his experience and about the time of setting on rigour mortis, the documents received by him for the purposes of handing over corpse and above certain aspects of post-mortem lividity, nowhere the opinion given by him regarding cause of death has been found shattered during the cross-examination.
14. It is significant to note that PW8 during cross-examination observed that it is not a rule that each person will die instantly in case of throttling. PW8 agreed that in a successful throttling death can occur within few minutes. However, he disagreed that in successful throttling death can occur within 15 to 20 seconds. He admitted of having not seen an abrasion or any injury over the neck.
He observed that it is not necessary that in every case of throttling ::: Downloaded on - 09/06/2013 17:06:00 ::: 17 tongue will be clinched between teeth. PW8 though agreed with the observation of Dr. Parekh that the bruises are often found on the front or the side of the neck chiefly about the larynx and above it and the conformation of the neck injuries indicate the way in which the hands have been applied to the neck still none of the said matters can be said to have an effect of not accepting the cause of death given by him. The evidence of PW8 is found well corroborated by the matter stated in the post-mortem note (Exh.25) given by him. Thus, in short the evidence of PW8 and particularly that of cause of death of Geeta given by him inspires confidence and deserves to be accepted.
15. Now considering the evidence of PW8 and particularly opinion given by him and apart from it being not even case of the defence that Geeta had accidentally suffered the said ante mortem injury or having accidentally suffered the same; and considering the said facet in the light of evidence of PW7 Rema and even of DW1 Jyoti, it can be safely said that the prosecution has established the fact that Geeta met with homicidal death.
16. Now taking up the second and so also third circumstance stated here-in-above i.e. (ii) of injuries leading to homicidal death of Geeta being sustained by her in the house of appellant in the said night between 10.00 pm up till 10.30 p.m. before she was taken to the hospital thereafter & (iii) of appellant, ::: Downloaded on - 09/06/2013 17:06:00 ::: 18 deceased and PW7 being the only persons in said house during the relevant period; the evidence of daughter PW7 Rema Mohan and that of DW1 and DW2 is relevant as PW7 is the only person from the said house in which the deceased sustained injuries and DW1 and DW2 are the persons who had been to the said house just after 10.30 p.m. after receiving call from appellant.
17. Before considering the evidence of PW7 it will be necessary to say that the apparent look at her evidence reveals that the prosecution after extensively recording of her examination-in-
chief was over had sought leave to ask her the questions in the nature of cross examination and after, trial Court granting such permission viz. under Section 154 of the Evidence Act, the learned APP has cross examined PW7. This witness was then cross examined on behalf of the defence. Having regard to the same it will be necessary to recapitulate legal position regarding the evidence of such witnesses and/or value to be given to it i.e. of the witnesses which are popularly said to be witness declared hostile. The same is necessary as her evidence would be required to be assessed in light of legal position about the same pronounced by Apex Court.
18. A reference to the decision of Apex Court in the case of "Sat Paul - Appellant Vs. Delhi Administration reported in AIR 1976 SC 294 may be useful on this proposition. The Apex Court in paragraph no.51 has observed as follows:
::: Downloaded on - 09/06/2013 17:06:00 ::: 19"From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto."
(emphasis supplied ) Needless to add the evidence of PW7 will be required to be assessed keeping in mind the abovesaid exposition of the Apex Court.
19. Now reference to evidence of PW7 would reveal that she was staying with her parents i.e. the house in which the incident in question occurred in May-June 2006. She has deposed that appellant had good relations with her mother Geeta. While, deposing about the events occurred on the relevant day, she deposed that her mother was complaining of headache during the day time and was seen taking rest on the bed. The appellant arrived at about 5.30 pm. Her mother told him that she was having vomiting sensation and started vomiting. That at about 6.00 pm, appellant initially called Dr.Bhide. Dr.Bhide, however, expressed inability to visit. As her ::: Downloaded on - 09/06/2013 17:06:00 ::: 20 mother was feeling weakness, appellant talked to DW1 Dr. Jyoti residing on 5th Floor of their building and requested her to come to the house. DW1 then visited their house and examined her mother.
She prescribed medicines. Appellant went to the market for purchasing the same. On his return, her mother had the medicines.
20. The further part of the depositions of PW7 reveals that at about 10.20 pm her mother complained of breathing problem.
Again appellant called DW1. DW1 examined her mother and told that her mother was having low B.P. and advised to take her to the hospital. Thereafter, PW 7 along with her father/appellant, DW1 and two neighbours took her mother to Shitla Hospital and doctor after examination declared her mother to be dead. Then the police recorded her statement. It is her case that the statement recorded was not read out to her in Hindi or English. The statement was recorded in Marathi; she is not conversant with Marathi.
21. Now close scrutiny of the cross examination of PW 7 by prosecution does not reveal any significant circumstance elicited during the cross examination because of which it can be said that the prosecution had discredited her either wholly or partially.
Needless to add that except eliciting the admission of appellant occasionally consuming liquor, PW7 denied the suggestion given on behalf of the prosecution that appellant used to quarrel with her mother in drunken state of mind and PW7 having deposed falsely to ::: Downloaded on - 09/06/2013 17:06:00 ::: 21 save the appellant. In view thereof, the evidence of PW7 applying the aforesaid test, is not liable to be discarded in toto. But upon considering her evidence with due caution and care, it is liable to be accepted, in the light of other evidence on the record, to the extent it establishes the prosecution case.
22. It is significant to note that during the cross examination of PW7 made on behalf of the appellant, she admitted that at about 9.00 pm she had given orange to her mother for eating. She further admitted that at about 10.00 pm she gave electoral water to her mother for drinking. She admitted that she was present with her mother throughout the day on 12.6.2006. She further admitted that her mother was taken in a car by DW2 and Dr. Jyoti and herself and the appellant and Mr. Rozi were in another car while her mother Geeta was taken to the hospital.
23. Now considering the evidence discussed for the first circumstance and particularly matters in the evidence of PW8 the same reveals that injuries found on the corpse of her mother were ante-mortem injuries. The same leads to the conclusion of deceased having sustained the said injuries before her death which had occurred prior to reaching Shitla Hospital, where she was declared dead after examination by the doctors. Thus, considering the said evidence and so also the evidence of PW7, DW1 and DW2 which is recited and discussed in further part, it leads to an ::: Downloaded on - 09/06/2013 17:06:00 ::: 22 inescapable conclusion that deceased had sustained injuries on her person before she was taken out of her house for taking her to the hospital. Such a conclusion is inevitable after taking into consideration the short duration which was required for taking Geeta from her house at Chembur Mumbai to Shitla Hospital also at Chembur. Needless to add that it is nobody's case that deceased sustained injuries during the said journey. No evidence to that effect has surfaced on the record.
24. Now on the aforesaid backdrop, considering the evidence of PW7 and particularly the examination of deceased Geeta by DW1 at 6.00 pm, it can be safely said that the deceased had not sustained any injury up-till 6.00 pm or until taking medicines brought by appellant by going to the market. Now considering the further evidence of PW7 that she had given her mother an orange for eating at 9.00 pm and so also electrol powder for drinking at about 10.00 pm; and her evidence even by implication not revealing any complaint made by mother at the said time of breathlessness as said to be made at about 10.20 pm, goes to indicate that up-till 10.00 pm the deceased had not sustained any injury. It can be further added that while appreciating the evidence of PW7 and accepting that such timings might have been given by her on approximation rather than with precision, still it can be said that the evidence clearly denotes/establishes that deceased had not sustained any injury until drinking electrol powder. Similarly, there ::: Downloaded on - 09/06/2013 17:06:00 ::: 23 is no evidence of deceased having sustained any injury during her journey from the house of appellant to the hospital, where she was declared dead. The evidence, however, clearly establishes that deceased had sustained ante-mortem injuries, as noticed on her person at the time of post-mortem. Thus, the said injuries were caused to the deceased only after consuming electrol power, but some time prior to taking her to the hospital as advised by DW1.
This conclusion is also fortified from the evidence of PW7 in light of the evidence of PW8 and so also that of DW1 & DW2 which is referred hereinafter.
25. In the same context and for the time being, leaving aside the further aspects spelt out from the evidence of PW 7, for present, it will be necessary to discuss only admission given by PW 7 that she was present all along with her mother on 12 th June, 2006. This admission will have vital bearing to draw inference and reinforce the theory propounded in the other evidence of the prosecution.
Considering the admission given by PW 7, it was for the PW 7 to explain how the ante-mortem injury was sustained by her mother.
The fact that she has failed to do so, is obviously to strengthen the defence of the accused-her father. In the light of the evidence that deceased Geeta sustained injuries when she was at home and before she was taken to hospital, it is for the accused who was the other person present in home to explain sustaining of such injuries by his wife. Suffice it to observe that even if PW 7 has been allowed ::: Downloaded on - 09/06/2013 17:06:00 ::: 24 to be cross-examined by the prosecution and her evidence would be that of hostile witness to the extent she has deposed that till 10.20 p.m., she was looking after her mother, who complained of breathlessness, will have to be accepted. In this evidence, there is no indication that deceased Geeta had already suffered any injury till 10.20 p.m. Soon thereafter, deceased Geeta was taken to hospital in injured condition where she was declared dead and the injuries found on her corps were ante-mortem injuries. That goes to show that the injuries were sustained by deceased Geeta after 10.00 p.m. and before she was taken to hospital from home. At the relevant time, no one other than the accused and PW 7 were at home. Corroboration of this fact can be deduced from the evidence of DW 1 and DW 2.
26. Now examining the evidence of DW1 from the said angle her evidence reveals a corroborative tale given by PW7 about relevant matters with some variation about the timings about herself being called by the appellant at 6.30 pm for seeing his wife who was not feeling well. It is pertinent to note that DW1 has deposed that immediately she had been to the house of the appellant and examined the deceased and found that she was having slight headache and was vomiting from morning. She has deposed of having returned to her own house within ten minutes after prescribing medicine. It is significant to note that evidence of DW1 does not reveal of then having noticed any injury on the ::: Downloaded on - 09/06/2013 17:06:01 ::: 25 person and particularly at the neck or at the lip.
27. The evidence of DW1 further reveals that at about 10.35 pm appellant had again told her on telephone of the deceased not feeling well and DW1 having been to his house and then daughter of appellant - PW7 being present in the house. DW1 has deposed that on examination she found blood pressure of Geeta was low and pulse was weak and she advised appellant to rush her to hospital as her condition was critical.
ig She deposed that appellant thereafter called neighbour Shriniwasan DW2, Geeta was taken to Inlak Hospital; herself accompanying the appellant; Shriniwasan then driving the car; Geeta was lifted by hand; appellant and PW7 having followed them in different vehicle; themselves rushing to Shitla Hospital as I.C.U. Doctor was not available at Inlak Hospital and having reached Shitla Hospital at about 11.00 pm and I.C.U. Doctors examining Geeta and having declared her dead.
28. Notably, DW 1 during the cross examination, has admitted that due to vomiting and headache, hyoid bone cannot be fractured. That means the said injury is attributable to force applied by some third person, as the fracture could not have occurred on its own unless force was to be applied. It is not the case of the defence that such pressure could have been applied by Geeta herself which resulted in the injury causing her death. Indeed, DW 1 has denied the suggestion given to her that when she accompanied ::: Downloaded on - 09/06/2013 17:06:01 ::: 26 the appellant to Shitla Hospital, Geeta was already dead. She has also denied that she was not deposing because she wanted to save the accused from punishment. The fact remains that this witness has not been able to explain the circumstances in which the fatal injury was suffered by Geeta to which she eventually succumbed.
The evidence of this defence witness can be best relied to establish the fact that she arrived on the scene after the appellant had called her to examine Geeta and thereafter, they all left for the hospital.
The evidence of this witness does not belie the prosecution case in any manner regarding the nature of injuries suffered by Geeta and the condition in which she was brought to hospital and that the injuries so noticed by PW 8 during the autopsy, was the cause of death, as Geeta died on account of asphyxia due to throttling.
29. Insofar as evidence of DW 2 is concerned, for the reason already recorded while appreciating the evidence of DW 1 for the same reason the evidence of this witness would only support the defence version that he arrived on the scene at around 10.30 p.m. as the appellant called him for help and that he accompanied the appellant to the hospital along with Geeta. In other words, even the evidence of DW 2 who has merely spoken about the evidence after 10.30 p.m. when he visited the house of the appellant and evidence which unfolded thereafter, cannot militate against the prosecution case that deceased Geeta died due to injuries noticed during the autopsy by PW 8 on account of asphyxia due to throttling.
::: Downloaded on - 09/06/2013 17:06:01 ::: 2730. Thus, considering the evidence of DW1 and DW2 the same clearly fortifies conclusion arrived and stated while considering the evidence of PW7. Needless to add the said evidence also fortifies conclusion drawn of same denoting the probabilities stated during the discussion made about her evidence. Thus as a cumulative effect of the evidence of PW7, DW1 and DW2 it can be said that the same definitely establishes the circumstances under consideration i.e. the deceased having sustained the relevant injuries after 10.20 pm and before arrival of Dr. Jyoti DW1 or DW2.
31. Needless to add that the said evidence also establishes that during the relevant phase the appellant, deceased and the daughter and PW7 were only persons in the said house. Such a conclusion is inevitable as neither the evidence adduced by the prosecution nor the evidence adduced by defence reveals anybody else had been in the said house during the said short phase in between 10 pm and 10.20 pm i.e. the phase in between deceased taking electrol powder and complaining about breathlessness to PW7.
32. Now taking up the fourth circumstance of the prosecution having established probable motive for the appellant, the reference to the evidence of relatives of the deceased residing at Tamilnadu namely her father PW3, husband of her sister-PW4, ::: Downloaded on - 09/06/2013 17:06:01 ::: 28 and her sister PW5 in terms reveal that relations between deceased and her husband were not cordial and the appellant used to ill-treat and harass her. Such a conclusion is inevitable as PW3 in his evidence amongst other matters has deposed to the effect :
"Every year in the summer holidays, my daughter Geeta used to come to my house along with her husband i.e. accused. Every time my daughter Geeta used to make complaints of ill-treatment and harassment by the accused. She used to weep. I used to convince her".
Now close scrutiny of the evidence of PW3 and particularly the answers given by him during the cross-examination of having admitted that the same was arranged marriage; father of the appellant was his friend since long; after marriage his relations with the family of the appellant neither cordial nor inimical; till the date of incident he was on talking terms with the father of the appellant;
appellant or his father had not made any demand from the date of marriage; or even his further admission "there were small disputes between appellant and my daughter Geeta, but those were minor in nature"; considered in proper perspective cannot be said to militate against the prosecution case. Needless to add that PW3 denied during the cross-examination that there was no dispute between the couple or the appellant had never ill-treated or harassed the deceased. He also denied of having falsely implicated the accused. Without unnecessarily dilating about the effect of the above stated evidence, at this stage and dilating about the same at proper stage while considering the similar evidence of his daughter ::: Downloaded on - 09/06/2013 17:06:01 ::: 29 PW5 and his son-in-law-PW4, it can be safely said that aforesaid evidence in terms reveal the relations between the couple being not cordial. In the same context, it can be added that though PW3 was cross-examined regarding his conduct of not immediately lodging the First Information Report with the police i.e. sending report Exh.
17 still considering the answers given by him about relevant aspect and having due regard to the fact that he was a father who has lost the daughter, we are unable to find any fault in his said conduct of not immediately lodging the report with the police.
ig Thus, considering the evidence of PW3 as a whole, the same clearly appears to be without blemish and hence deserves to be accepted.
The acceptance of the said evidence clearly establishes the facets as observed earlier.
33. Somewhat similar position is also seen from the evidence of PW 5, sister of the deceased. In the relevant part of her evidence, alike her father, she has also deposed :
"Every year in summer holidays, my sister Geeta used to go to my father's house along with her husband i.e. accused. My sister Geeta used to make complaints against her husband Mohan i.e. accused. My sister Geeta used to tell us that her husband i.e. accused was addicted to bad vices. Her husband i.e. accused used to consume liquor. Many times, he was not returning to the house during night hours. Her husband i.e. accused used to switch off the mobile, whenever he used to remain outside the house during night hours. She used to bear ill-treatment and harassment for her child. I used to convince her....."::: Downloaded on - 09/06/2013 17:06:01 ::: 30
Now considering the answers given by PW5 during the cross-
examination, the same reveals that to the question asked, that the frictions between the couple were not of serious nature, PW5 had replied that appellant used to torture his wife mentally. Even accepting admission given by PW5 that herself and her husband did not sit with deceased and appellant to solve the differences between them, still is difficult to accept that the same can be said to be affecting the evidence given by her.
ig Thus, considering the said evidence of PW5 in proper perspective, it can be safely said that the same is not only corroborating the evidence given by her father but also throwing more light about the relations prevailing in between husband and wife and severity occurred within the relationship. The same can be definitely inferred from the conduct of the appellant in not returning to the house during night hours and switching off mobile whenever he used to remain outside the house during night hours. As deposed by PW5 the gravity of the ill-
treatment is spelt from her evidence that her deceased sister bear the ill-treatment and harassment for her child. Now considering the fact that PW5 was married elder sister of the deceased, the deceased disclosing in detail about ill-treatment to her rather than her father cannot be said to be unnatural. Thus, scrutinizing the evidence of PW5, the same also appears to be convincing and inspire confidence. Needless to add that, accepting the same would establish the fact of deceased being ill-treated and harassed by the ::: Downloaded on - 09/06/2013 17:06:01 ::: 31 appellant and the appellant at least on the occasions was preferring to remain away from the deceased.
34. No different position has been spelt out from the evidence of PW4 who is husband of PW5 and who is resident of Chennai, his evidence is on the similar lines and corroborating the evidence given by his wife PW5 wherein amongst other about the relevant aspect he has deposed :
"Every year in summer holidays, my sister-in-law Geeta used to visit her father's house along with her husband i.e. accused. Till the year 2000, there were minor problems in her matrimonial life. My sister-in-law Geeta used to make complaints against her husband i.e. accused that he was not returning to the house during night hours frequently. My sister-in-law Geeta had also told me that her husband i.e. accused used to consume liquor."
About further events occurred his evidence reveals of himself having been to Mumbai after receipt of the information of the death of Geeta. It also reveals that as he could not gather from copy of post-mortem report received he had handed over the same to his co-brother Jaikumar and after perusal Jaikumar told him that it was unnatural death and was caused due to throttling. He also deposed that he has discussed the same with his father-in-law i.e. PW3 and PW3 was shocked. He deposed of themselves having tried to contact the appellant but appellant was not available for 4 to 5 days and, thereafter, his father-in-law PW3 had sent written ::: Downloaded on - 09/06/2013 17:06:01 ::: 32 report to RCF Police Station, Mumbai and they had been to Mumbai.
35. Now scrutiny of his evidence though reveals that during the cross examination he admitted that when he had been to Mumbai for collecting dead body then it was not in his mind that Geeta used to complain against her husband that he was not returning to house frequently during night hours or having not told the said facts while recording his statement, hardly the same can be construed as an improvement made by him at the time of trial.
Similarly, no undue importance can be given to a fact of his admission that on 14.6.2006 along with his brother-in-law and father-in-law had decided to lodge the report. The same is obvious as his evidence also reveals that his father had sent a written report to R.C.F. Police Station i.e. Exh.17 and prior to the same they had tried to contact the appellant but he was not available for 4 to 5 days. Thus, considering his evidence in proper perspective the same also corroborates the evidence of his wife and so also that of his father-in-law.
36. Now considering cumulative effect of the evidence of PW3, PW4 and PW5, the same definitely reveals the strained relationship prevailing in between said couple. Experience shows that in our country the tendency of womenfolk is generally not to speak out in public about the differences with their husbands. That makes it difficult to have cogent evidence regarding precise nature ::: Downloaded on - 09/06/2013 17:06:01 ::: 33 of differences arisen in between them or gravity of the same, still the aforesaid evidence speak in volumes about the gravity or severity occurred in relations in between deceased and appellant.
The same is apparent from the conduct of appellant as established through the same of remaining outside the house during the night hours in spite of having well grown child and furthermore anxiety to have no contact with the wife i.e. by keeping the mobile phone switched off. Needless to add that such a conduct by a person after passage of matrimonial life for number of years itself speaks about the relationship prevailing in between the couple.
37. In the same context it will not be out of place to make reference to the observations made about motive in a case involving circumstantial evidence though in the context of inability of prosecution establishing motive by the Apex Court i.e. in a case of "Mulakh Raj etc. Appellants v. Satish Kumar and Ors, Respondents reported in AIR 1992 Supreme Court 1175 wherein in paragraph no.17 it is observed "17. The question then is, who is the author of the murder ? The contention of Sri Lalit is that the respondent had no motive and the High Court found as a fact that the evidence is not sufficient to establish motive. The case is based on circumstantial evidence and motive being absent, the prosecution failed to establish this important link in the chain of circumstances to connect the accused. We find no force in the contention.
Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock.
People do not act wholly without motive. The ::: Downloaded on - 09/06/2013 17:06:01 ::: 34 failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case......"
(emphasis supplied)
38. Similarly it will not be also out of place to make a reference to the observations regarding motive in a case involving murder of wife by the husband made by the Apex Court in the decision in the case of "Nanak, appellant Vs. State of U.P., reported in AIR 1983 SC 1091 wherein at page 1092, it is observed as under :
"........In the first place it has been stated by P.W.1 Kundan that relations between husband and wife were not cordial. In a case of murder of the wife by the husband there are many considerations which have to be looked into and it is very difficult to know the exact motive in the circumstances of a given case. For these reasons, therefore, we are satisfied that the prosecution has been able to prove the case beyond reasonable doubt. This is not a case in which it can be said that the view taken by the Sessions Judge is reasonably possible. The appeal is accordingly dismissed."
(emphasis supplied)
39. Thus considering in proper perspective the true import of the said observations and considering the evidence of PW3, PW4 and PW5, it can be safely said that the said evidence definitely ::: Downloaded on - 09/06/2013 17:06:01 ::: 35 establishes the relationship between couple being not at all cordial, appellant ill-treating and harassing the deceased, the appellant interested in remaining away from the house on occasions and that too in night time and then used to switch off his mobile. Needless to add thus the said evidence definitely establishes that the appellant had a motive for commission of crime for which he was charge sheeted.
40. In the same context now considering the evidence of PW7 Rema during the examination-in-chief and particularly the admission given by her that my father was having good relations with my mother Geeta or during cross-examination having stated that my father used to consume liquor sometimes or PW7 having denied that appellant used to quarrel with her mother Geeta in drunken state of mind etc. being in the nature of answers given by a child who had already lost her mother and father put at trial, cannot be said to have repelling effect on the inferences arising out of the above referred evidence of PW3, PW4 and PW5. As observed earlier about the Indian womenfolk there being a tendency not to speak out against the husband in public, would be also equally applicable in a case of children deposing about their father.
41. Though the learned counsel for the appellant tried to canvass that there occurs bickering in every couple and hence even accepting that the relationship was not proper or there used to be ::: Downloaded on - 09/06/2013 17:06:01 ::: 36 such conduct on part of appellant, the same would not be sufficient to infer the appellant possessing sufficient motive to murder his wife, the same will not deserve any credence. Needless to add that existence of probable motive and sufficiency of motive being altogether different aspect and particular reasons offering/affording sufficient motive or otherwise would be differing from person to person and/or relationship between victim and the offender, the prosecution in such a case governed by circumstantial evidence is expected/required only to establish probable motive and not the sufficiency of the motive. Thus examining the matter from the said angle it cannot be said that by the facets established by evidence of PW3, PW4 and PW5, the prosecution has not established the appellant having probable motive for the commission of crime.
42. Now considering the last fifth circumstance established by the prosecution about the accused having taken false defence of himself being falsely implicated by PW3, PW4 due to appellant having not agreed to the request of PW3 of having funeral of deceased at his native place and appellant having taken dead body from the house of his father-in-law and performed last rites at the native place of the appellant, there is hardly any material on the record for coming to the conclusion of the appellant having established his said defence of false implication. Since the relevant aspect has been already discussed while considering the circumstance pertaining to appellant having probable motive, no ::: Downloaded on - 09/06/2013 17:06:01 ::: 37 detail dilation about the same is necessary except stating the prosecution having established the defence taken by the appellant being false.
43. Now considering the effect of the circumstances established by the prosecution in light of the submission canvassed, it can be safely said that the said circumstances within themselves do form a formidable chain leading to the sole inference about guilt of accused of committing murder of his wife. Needless to add that inferences arising out of the said chain are more compatible with the hypothesis of the guilt of the appellant rather than the hypothesis of his innocence.
44. Such a conclusion is inevitable considering the circumstances emanating from the evidence surfaced at the trial leading to such inference.
45. Now with regard to the submissions canvassed regarding the conduct of appellant in the episode and particularly his conduct of bringing the medicine for his wife having occurred at about 6.30 pm i.e. much prior of occurring of crucial event in between 10.00 pm to 10.30 pm i.e. during the relevant phase in which the deceased in all probability had received the injuries which had led to her death, no advantage about the said conduct can be given to the appellant nor the same can be said to have effect of absolving ::: Downloaded on - 09/06/2013 17:06:01 ::: 38 him of the liability denoted by the other circumstances established on the record. The same is the case about his further conduct of calling neighbours and taking his wife to the hospital, also cannot be said to be of nature indicating that due to the same he cannot be said to be author of the said injuries sustained by his wife and led to her death. As a matter of fact the deceased having sustained the injuries in the house and had died soon thereafter is a factor which tilts the scale against the Accused.
46. Now lastly considering the another submission canvassed that the prosecution having failed to exclude the possibility of anybody else had not been in the said house during the relevant period or the evidence not excluding the possibility of author of the said injury being anybody else other than the appellant and consequently responsible for death of deceased, it will be necessary to say that since it was not the defence of the appellant nor it is spelt from the evidence of anybody else could have entered the said flat during the relevant phase, the only possibility of other person being in the said flat is that of the daughter of the appellant i.e. PW7. Thus, considering relevant aspect from the said angle though it could have been said that alike appellant, PW7 was also having equal opportunity to commit the crime still having due regard to the fact that she was in the house even in the earlier part of day and the prosecution evidence failing to denote herself having any probable motive for commission of the crime, the same clearly ::: Downloaded on - 09/06/2013 17:06:01 ::: 39 appears to be a fanciful hypothesis i.e. the possibility of PW 7 being author of the said injuries.
47. Now considering the aforesaid aspects in light of following observation by the Apex Court regarding the appreciation of circumstantial evidence in the decision in the case of State of U.P., Appellant Vs. Ashok Kumar Srivastava, Respondent reported in AIR 1992, SC 840 in paragraph no. 9 to the effect :
"9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise..........."
(emphasis supplied) It can be safely said that such a far-fetched and fanciful hypothesis requires to be rejected. Therefore, the submission to absolve the appellant on the said count will have to be rejected.
48. In the premises aforesaid, we do not find any fault in the ::: Downloaded on - 09/06/2013 17:06:01 ::: 40 findings arrived at by the trial Court regarding finding of guilt against the appellant/accused for committing murder of his wife or the sentence awarded to the appellant on the said count.
49. Thus, we do not find any merit in the appeal and dismiss the same.
(P.D.KODE, J.)ig (A.M.KHANWILKAR, J.)
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