Bombay High Court
Appasaheb Sadashiv Khairnar vs The State Of Maharashtra on 8 May, 2013
Author: P. D. Kode
Bench: V. K. Tahilramani, P. D. Kode
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.635 OF 2008
Appasaheb Sadashiv Khairnar,
r/o Rasulpur, Tq. Niphad, Dist. Nasik
(At present in Nashik Road Central Jail,
Nasik.) .....APPELLANT
ig ...V E R S U S...
The State of Maharashtra,
through Police Station Officer,
P. S. Niphad, Tq. Rasulpur, Dist. Nasik ...RESPONDENT
.....
Mr. Arfan Sait, Learned Advocate appointed for the appellant.
Mrs. Shilpa Gajare-Dhumal, Learned A.P.P. for the State.
.....
CORAM:- SMT. V. K. TAHILRAMANI &
P. D. KODE, JJ.
DATED :- MAY 8, 2013
ORAL JUDGMENT (Per: P. D. Kode, J.)
1. By the present appeal, the appellant assails the judgment and order dated 16.11.2005, passed by the learned Additional Sessions Judge, Niphad, convicting him, firstly for committing murder of his wife Sundarabai on 05.02.2005 by strangulation and secondly for causing ::: Downloaded on - 06/01/2014 03:36:23 ::: 2 disappearance of evidence of said murder, for screening himself from the legal punishment; and on first count sentencing him to suffer life imprisonment and to pay a fine of Rs. 1,000/- and in default of payment of fine, suffering rigorous imprisonment for one month and on second count to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/- and in default of payment of fine to suffer rigorous imprisonment for one month. However, at the trial, the appellant as well as his father-original accused no.2 Sadashiv Khairnar, his mother-original accused no.3 Indubai Khairnar, were acquitted from the charge of commission of offence under section 498-A read with 34 of the IPC. Similarly, the said original accused nos. 2 and 3 were also acquitted from other charges of commission of an offences under section 302, 201 read with section 34 of the IPC.
2. According to the prosecution, PW1-Ashok Shirsath brother of deceased Sundarabai and first informant PW3-Sarlabai was residing along with his father, brother, their wives at Umrani, Tq. Deola, Dist.
Nasik. His sisters were given in the marriage in Khairnar family of village Deshmane, Tq. Yeola. Sundarabai had married the appellant while Sarlabai with Raosaheb. All of them along with parents of the appellant, i.e. acquitted original accused nos.2 and 3 were residing at Niphad since last 8-9 years.
::: Downloaded on - 06/01/2014 03:36:23 ::: 32.1. On 05.02.2005 during the midnight at 3.30 a.m. while PW1 was sleeping, his younger brother Deepak came from Nasik to his house at Umrane and appraised that on 04.02.2005 at about 01.00 p.m., the appellant gave a phone call and asked for coming at Rasulpur with money, but then he told that as he was on duty and he would come on the next day. Deepak appraised that again at 01.00 a.m., a phone call was received from appellant that now there was no need to bring money and he can come for disposing sister. Hence he had been to PW1. PW1, thereafter, rushed to Rasulpur by 06.30 a.m. and found that his sister Sundarabai was no more and her corpse was kept at her house. After noticing blackish mark at her neck, he went to Police Station. The report Exh.-10 narrating such matters lodged by PW1 was recorded by PW4-HC More at Niphad Police Station. PW4, thereon registered A.D. No. 4/2005. PW4, went to the spot and drew inquest panchanama Exh.-16 in presence of Panchas and forwarded the body to post-mortem to Primary Health Centre, Niphad. PW2-Dr. Ramesh Wakunj on duty at the said Centre, carried post-mortem examination of the corpse of Sundarabai and prepared post-mortem notes Exh.-12 mentioning cause of death as "Cardio-Rerspiratory failure due to asphyxia due to strangulation. However, viscera preserved for Chemical Analysis."
2.2. PW3-Sarlabai went to Police Station at about 20.00 hrs. on 5th February, 2005 and lodged complaint Exh.-14 mainly narrating that ::: Downloaded on - 06/01/2014 03:36:23 ::: 4 she was residing jointly at Rasulpur, Tq. Niphad, Dist. Nasik along with her husband Raosaheb, children, her in-laws, deceased Sundarabai and her husband. The appellant and husband of PW3 were working at Hotel Rasik as waiters.
2.3. The appellant used to assault deceased suspecting her character. Though, PW3, out of wedlock had two daughters and a son, deceased remained without issue. The appellant and his parents were quarreling, abusing and assaulting deceased on the point of not having issue out of wedlock. Ultimately, the deceased conceived and about two months prior to the incident in question occurred on 05.02.2005, delivered a daughter. The appellant, within 15 days of delivery, brought her back to Rasulpur from house of her parents after quarreling with deceased and brother-in-law. The appellant and his parents even thereafter quarreled with deceased by blaming her of being of ill fate as even after so many years, she had a daughter.
2.4 The deceased suffering from weakness and irregular menstrual secretion was taken by appellant and his mother to the Doctors on 04.02.2005. The deceased, after returning house at 7.00 p.m. told to PW3 that she was taken to Dr. Hadpe and Dr. Rane and they advised for taking treatment at Nasik and told that blood also would be required to be given to her. The appellant and his parents, from time to ::: Downloaded on - 06/01/2014 03:36:23 ::: 5 time, were asking the deceased for bringing Rs.2000/- from her parents required for her treatment. They were harassing and subjecting the deceased to cruelty by making such demands. On 04.02.2005, after returning from dispensary, the appellant, his parents abused the deceased and asked her to bring Rs.2000/- for treatment from her parents.
2.5 Her in-laws had a dinner by 9.30 pm while the appellant by 10.30 pm and thereafter PW3 and deceased had the dinner. PW3 and the in-laws went for a sleep in the front portion of the house while the appellant and the deceased went for sleep in inner portion i.e. in the kitchen. PW3 heard quarrel going in loud voice in between the appellant and deceased. At about 11.30 p.m. husband of PW3 returned from the hotel and after refreshing himself in the courtyard, PW3 went in kitchen and brought dinner. The deceased and the appellant were then sitting in the kitchen. PW3 and her husband went for sleep after PW3 kept dish in kitchen in which dinner was brought. Though, a quarrel was in progress in between the deceased and the appellant, PW3 ignored it as there used to be quarrels in between them.
2.6 At about 12.30 a.m., husband of the PW3 awoke her and asked her to find out why deceased was not looking after daughter crying for considerable time and pacifying her. PW3 went in kitchen and ::: Downloaded on - 06/01/2014 03:36:23 ::: 6 found that daughter of the deceased was crying, the appellant was sleeping and her sister was near the bathroom with her feet touching ground and black string tied around her neck with other side of string tied upwards, giving an impression that after strangulating, false show was created that the deceased has hung herself. As Sundarabai was no more, PW3 shouted and her in laws came and they untied the string.
The appellant informed brother-in-law Deepak by giving phone-call.
2.7 PW6 P.I. Patil recorded said complaint Exh.-14 lodged by PW3. Crime No.17/2005 was registered upon said complaint. PW6 drew spot panchanama Exh.-22 and recorded statement of witnesses.
He arrested the appellant on the next day. He recorded disclosure statement made by the appellant by drawing panchanama Exh.-19 in presence of Panchas PW5-Kailash Shirsath and another. He seized black string from the house in question produced by the appellant by drawing seizure Panchanama Exh.-18. At the conclusion of the investigation, he submitted a charge-sheet against the appellant for the offences under Section 498-A, 302, 201 read with section 34 of the IPC.
3. The appellant pleaded not guilty to the charge Exh.-2 for such offences framed by the trial court against him and the co-accused facing the trial. Prosecution adduced oral evidence of above referred 6 witnesses and also relied upon documentary evidence, which was ::: Downloaded on - 06/01/2014 03:36:23 ::: 7 prepared during the course of investigation and referred hereinabove.
The defence of the appellant was that of false implication. The appellant claimed that due to threatening given, PW3 falsely deposed and PW2- Dr. Ramesh Walunj prepared a false report at the instance of police. The appellant claimed that police have filed false case against the appellant.
4. The trial court, after appreciation of the prosecution evidence came to the conclusion that prosecution has established the circumstances leading to the conclusion of guilt of the appellant in commission of offences under Section 302 and Section 201 of the IPC.
In consonance with such finding arrived, the trial Court convicted and sentenced the appellant as narrated hereinabove but acquitted him of the charge of committing offence under section 498-A of the IPC and so also the other co-accused facing trial from all the charges framed against them.
5. After hearing both the parties at length and examining the merits of the submissions canvassed in light of the record before the Court and particularly the circumstances referred by the trial Court in the judgment and held to have been established and whether same lead to the sole inference of guilt of the appellant, for the reasons recorded hereinafter, we are of the opinion that the prosecution has established the circumstances referred therein and the said circumstances lead to the ::: Downloaded on - 06/01/2014 03:36:23 ::: 8 sole inference of the guilt of the appellant of committing the offences for which he was convicted and sentenced by the trial court.
6. After careful perusal of the judgment appealed, we find that the trial court had come to the conclusion of the prosecution having established;
(i) the deceased was lastly seen alive in the company of the appellant;
(ii) the appellant possessing the motive for commission of crime in question;
(iii) deceased Sundarabai having met with homicidal death;
(iv) the appellant failed to give the explanation regarding occurring of death of deceased while in his custody;
(v) the appellant tried to advance false explanations;
7. The trial court, thereafter, concluded that the said circumstances within themselves form formidable chain unerringly pointed towards the guilt of the appellant in committing the offence under sections 302 and 201 of the IPC. Since legal position regarding the case resting upon circumstantial evidence is settled to the effect that in such cases firstly, it is necessary to ascertain whether the circumstances said to have been established by the prosecution in reality were established firmly by cogent and convincing evidence and secondly, the circumstances so established within themselves form a ::: Downloaded on - 06/01/2014 03:36:23 ::: 9 formidable and complete chain leading to the sole inference of the guilt of the concerned culprit, we propose to consider the evidence accordingly and thereafter to ascertain whether the circumstances thereby established led to the inference of the guilt of the appellant as drawn by the trial court.
8. In the said process, firstly considering the evidence of PW3- Sarlabai-sister of the deceased, as we find that she has deposed well in consonance with the prosecution tale narrated hereinabove and found narrated in the FIR Exh.-14 lodged by her, we do not propose to reiterate her evidence at length except stating that she deposed regarding herself and deceased being given in the marriage in the Khairnar family, herself having delivered a daughter one year after marriage, however, the deceased having not delivered child, deceased was blamed by the appellant and the acquitted accused. She deposed of the deceased being beaten on said count, ultimately the deceased delivering a daughter at the father's house and brought back to the matrimonial house within 13 days, though was weak. She further deposed regarding, thereafter, the deceased being taken for treatment to Dr. Hadap and other Doctor at Niphad and said doctors having advised to give her treatment at Nasik, but the appellant and co-accused having not taken her to Nasik and admitted her in the dispensary of Dr. Rathi and had brought her back to the house on Friday evening.
::: Downloaded on - 06/01/2014 03:36:23 ::: 109. The most material part of the evidence of PW3 regarding events occurred in the said night reveals as all of them had the dinner by 10.30 p.m. and her husband returned back at 11.30 p.m. and had his dinner. It reveals that thereafter all of them had been for sleep in their room, after some time her husband went for answering call of nature and while returning at about 1.00 a.m. heard daughter of the deceased crying. It reveals that her husband asked her to look after the matter. It reveals that after entering the room, she saw that baby who had partly come down off the bed crying and her sister nearby the baby with the appellant sleeping. It reveals that her sister-deceased was then lying in the corner of the room near toilet and she was found strangulated. It reveals that she tried to awoke the appellant but he did not and, therefore, she called her husband and in laws-acquitted accused nos.2 and 3. Her evidence reveals that deceased was then found in standing position with hands on the wire used for tying clothes and a string fastened around the neck, with one end of the string tied to the neck and other to wooden rod of the roof. It reveals that it was black colored string and the same was cut by acquitted accused nos. 2 and 3 and the deceased was taken down. Her evidence reveals that phone call was given to her brother Deepak. She further deposed of having been to the Police Station and having made a complaint Exh.-14 and vouched for the correctness of said complaint.
::: Downloaded on - 06/01/2014 03:36:23 ::: 1110. After carefully considering the answers given by PW3 during lengthy cross examination to which she was subjected, we do not find anything significant brought on record except herself having told the matters witnessed by her, firstly to Deepak, neighbors having not arrived at the place of the incident and the reason given by her for not informing them about the incident though the deceased had told her about the ill treatment, no report about the ill treatment to the deceased was lodged with the Police Station, herself having not written any letter about the ill treatment given to the deceased to her parents or having not told about it to them on phone. Significantly enough during the cross-examination of PW3, it was surfaced that nobody was happy when the deceased delivered the daughter. PW3 also admitted of having not heard anything prior to the incident. It was also brought on the record that the deceased was repeatedly calling her brother for meeting her but nobody turned up from the village and the deceased was perturbed.
However, PW3 in no uncertain terms denied that the deceased in such a frustrated mental condition committed suicide by hanging herself. She also denied that the appellant was not at the house when the incident had occurred. She also denied various suggestions given to her regarding the false implication of the appellant.
11. Thus, after considering the evidence of PW3 in entirety in the ::: Downloaded on - 06/01/2014 03:36:23 ::: 12 light of the matters elicited during the cross-examination we do not find that her evidence was shattered in the cross-examination in any manner regarding the deceased being harassed and subjected to cruelty initially on count of non delivery of child and later on due to the delivery of daughter. Her evidence also establishes that besides the appellant and her daughter nobody else was in the room in which the deceased was found strangulated. Thus, we do not find any erstwhile reason for not accepting her such evidence.
12. Mr. Sait, learned counsel for the appellant, tried to canvass that the evidence of PW3 fails to establish the motive for the appellant to kill the deceased. The learned counsel urged that besides interested words of PW1 and PW3 hardly any independent evidence was adduced by the prosecution regarding the said aspect. It was further contended that ultimately the deceased having delivered the daughter, the frustration, if any, the appellant having on the point of having no issue was over, and as such he had no reason to commit murder of the deceased. The learned counsel tried to canvass that the evidence of PW3 also reveals that the deceased has become weak due to the delivery and in all probability, the possibility of herself having committed suicide is not altogether ruled out. It was contended that the fact of the appellant found sleeping in said room also supports such possibility. It was urged that as the appellant after committed the murder of deceased, would ::: Downloaded on - 06/01/2014 03:36:23 ::: 13 never had remained in the said room.
13. After carefully considering the evidence of PW3, we are unable to accept any of the submissions canvassed. We are of such a opinion because of the evidence of PW3 undoubtedly reveals that after delivery of daughter nobody from the house was happy. Her evidence also discloses that initially deceased being maltreated on the count of not delivering a child. Though, it is true that ultimately she had delivered an issue merely because of it, it cannot be said that the frustration of the appellant or of the other family members was over.
The evidence of PW3 sounds in the said sense as it indicates that in spite of doctors at Niphad advising for giving treatment to deceased at Nasik, she was not taken to Nasik. We do not find any substance in the submission canvassed of the deceased having committed suicide on the backdrop of fact that she has delivered a daughter. The said factor clearly militates against any mother entertaining such desire after delivery of the child. Thus, considering the evidence of PW3, as a whole, we are unable to find any fault with the trial court in accepting and relying upon the said evidence. Needless to say that by the said evidence, the prosecution has duly established the appellant possessing the motive for commission of the crime, as well as the deceased being lastly seen alive in the company of the appellant and so also nobody else was in the said room in which she was found strangulated.
::: Downloaded on - 06/01/2014 03:36:23 ::: 1414. We are not at all impressed by the submissions canvassed of PW3 having deposed falsely at the behest of her parents or due to the love and affection of the sister, who was no more, ignoring the fact that PW3 was also a member of the Khairnar family i.e. wife of the brother of the appellant. Having due regard to the said fact and nothing having surfaced on the record of PW3 or her husband entertaining animus against the appellant for any reason, would have falsely implicated the appellant at the stake of pulling her matrimonial life in danger.
15. In the context of the aforesaid circumstances and considering the evidence given by PW1, we find his evidence as corroborating many of the matters deposed by his sister. Additionally, he deposed regarding demand of Rs.2000/- made by the appellant from her brother Deepak, Deepak coming to the house of PW1 appraising about it, themselves having been to Rasulpur, having seen the deceased no more, having noticed injury on her neck and having given a report Exh.-10 with the Police Station. PW1 vouched for the correctness of said report. We find that his evidence is well in conformity with the matters stated in the said report immediately lodged by him, after finding that his sister was no more. He also deposed regarding the deceased having complained him regarding ill treatment, whenever she was coming to him and the ill treatment given to her by the appellant and his family members were on ::: Downloaded on - 06/01/2014 03:36:23 ::: 15 count of herself being not able to conceive a child. He deposed that at the time of the incident, the daughter of the deceased was about 1 to 1.5 months old. He also deposed of the deceased being taken back by the appellant within 13 days of her delivery. After careful scrutiny of his evidence, we find that nothing was elicited during the cross-examination affecting the core of his testimony of the deceased being harassed on the count as deposed by him, himself having noticed injury on her neck. We do not propose to discuss the insignificant omissions brought on the record during the cross-examination as we find that none of them have any effect of shaking his testimony on the aforesaid two vital points. We find that the evidence of PW1 strengthens the evidence of PW3 and consequently the evidence of both the witnesses firmly establishes the circumstance said to have been established by the prosecution while discussing the evidence of PW3.
16. Now, considering the third circumstance of the deceased having met with homicidal death, the evidence of PW3 is self eloquent.
The said evidence in terms reveals condition in which she had found her sister strangulated in the room. At the cost of reiteration, we observe that said part of the evidence of PW3 has totally remained unshattered after her cross-examination. In the same context, reference to the evidence of PW2-Dr. Wakunj reveals that he had performed post-mortem upon the corpse of Sundarabai on 05.02.2005 at Primary Health Centre, ::: Downloaded on - 06/01/2014 03:36:23 ::: 16 Niphad, after her body was sent by Niphad Police. The evidence of PW2 reveals that during the external examination he had found following injuries as mentioned by him in the Column No. 17 of post-mortem notes Exh.-12 i.e.
i) Ligature mark on neck, on lyrnx of length 10 cm in width half cm extending 6 cm away from either side angle of mandible and 2.5 cm above from the second mark.
ii) All round neck width 1 cm. Length 28 cms.
iii) Anterior side of neck width half cm. Length 17 cm 1.5 cm below second ligature mark Echymosis and bruises around the ligature mark. The wound bluish in colour.
17. PW2 further deposed that during internal examination, he found that there was fracture of Larynx and Tracheas and lungs were congested, Emphysematus patches on both lungs. Significantly enough, his evidence reveals that he did not find dislocation of any vertebra and stomach was containing semi digested food material. PW2 categorically deposed that death was caused due to cardio-respiratory failure due to asphyxia due to strangulation. During further part of evidence, PW2 deposed that he had not found that Thyroid bone was fracture. He deposed that generally in case of hanging, Thyroid bone is fractured. He denied that hanging is mode of strangulation. He further deposed that ::: Downloaded on - 06/01/2014 03:36:23 ::: 17 there may not be a cross-mark in every case of strangulation by ligature.
He denied that ligature mark as appearing on the neck of the deceased could appear in the case of hanging. He deposed that marks appearing on the neck of the deceased could be caused by string before the Court.
He deposed of having not found any nail marks around the neck or any visible injury on the body of the deceased except the injuries on the neck. PW2 denied that in case of strangulation, there would always be a fracture of hyoid bone. Thus, considering the evidence of PW2 in entirety, we find that nowhere his evidence is shattered that the deceased had died due to strangulation and she had not died due to hanging.
18. With regard to the evidence of PW2, the learned counsel for the appellant tried to canvass that the symptoms for death due to strangulation and hanging due to commission of suicide were likely to be similar in view of in both cases, the death occurring due to asphyxia.
The learned counsel tried to canvass that PW2 having not found any strangulation marks or injury marks at the person of the deceased is indicative of the deceased having committed suicide rather than herself being throttled as contended by the prosecution. The learned counsel heavily placed reliance upon the fact that the appellant being found sleeping in room when PW3 had noticed her sister was dead when she had been to the room to ascertain the reason for child crying, as asked to ::: Downloaded on - 06/01/2014 03:36:23 ::: 18 her by her husband. We are not at all impressed by the said submission as observed earlier that absolutely nothing was brought on the record for coming to the conclusion that the mother of such a tender child would commit suicide leaving her such a small daughter exposed to world and that too in the event of birth of daughter being not liked in the said family. Though, it is true that the evidence of PW3 reveals that the appellant was sleeping in the said room and did not awake, she called other relatives. However, it cannot be said to be universal rule that in every case, the culprit after committing the offence would always leave the spot for hiding himself. On the contrary, in the instant case, we find that an attempt to disguise the people and police was made by making show of deceased having hung herself i.e. the possibility totally ruled out by evidence of PW2. In such state of affairs, it would not be surprise to find the appellant sleeping in the room in consonance with the arrangement made by him i.e. for supporting the story of the deceased having committed suicide. Thus, considering the facets connected with the events occurred, merely upon the evidence of PW3 and PW1 that though she tried to awake the appellant he did not awake, we are unable to hold that the said facets reveal innocence of the appellant. We are of such a view as could have even pretended accordingly when his sister-in-law has tried to awake him. Thus, considering the evidence of PW3 and PW2 together, we find the prosecution having proved the deceased having met homicidal death and find no fault with the trial ::: Downloaded on - 06/01/2014 03:36:23 ::: 19 court in arriving at such a finding.
19. We do not find substance in the submissions advanced of absence of injury of struggle on the person of the deceased being indicative of herself having committed suicide. We are of such view as evidence of PW3 also reveals that the deceased had then become weak after delivery. The fact of herself requiring the medical treatment is also apparent from her evidence. Having regard to such positions mere absence of any other injury on her person may be due to herself being unable to struggle. Since it cannot be said to be a circumstance in favour of the appellant as tried to be canvassed by the learned counsel for the appellant.
20. Now, reverting to fourth circumstance of failure of the appellant to explain the reason behind occurring of death of his wife in the room in which nobody else except himself and child were sleeping in the relevant night, we find the trial court having not committed any error by having recourse to the provisions of Section 106 of the Indian Evidence Act, which reads as:
106. Burden of proving fact especially within knowledge.-
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
::: Downloaded on - 06/01/2014 03:36:23 ::: 2021. We are of such a view as the prosecution evidence, particularly that of PW3 considered in proper perspective reveals that during the said night also deceased and their child were sleeping in the said room after they had the meals. It also signifies that the deceased was lastly seen alive by her in the company of the appellant when PW3 had gone to bed at about 11.30 p.m. after arrival of her husband and after he had the food. Her evidence also reveals that at about 1.00 a.m. the deceased was found in strangulated condition in the said room.
Now, considering the proximity of time within the said events on the backdrop of provisions of section 106 of the Indian Evidence Act, it would have been necessary for the appellant to reasonably explain the circumstances in which his wife had met the death i.e. homicidal death as established by the prosecution through evidence of PW2. Since, we find there being total failure on the part of the appellant to advance any explanation of the said gravest incriminating circumstance, the same alone is capable of leading to the conclusion of his guilt, muchless in the commission of murder and so also causing disappearance of the evidence of the said offence by making a false show of his wife having committed suicide by hanging herself.
22. Similarly, we find that in view of possibility of decease having died due to hanging due to commission of suicide being ruled out by evidence of PW2, finding of the deceased in standing position as ::: Downloaded on - 06/01/2014 03:36:23 ::: 21 deposed by PW3 leads to no other conclusion of the appellant having attempted to advance the false explanation regarding homicidal death of his wife by making a show of herself having committed suicide. Thus by the said evidence prosecution has also established fifth circumstance of the appellant having attempted to give false explanation about the death of his wife in the room in which he was sleeping.
23. In the context of the aforesaid circumstance, we further find that in line with such an arrangement made by the appellant on the date of the incident, even at the trial he had not tried to advance any other explanation. It needs no saying that said explanation cannot be accepted in view of unshattered evidence of PW2 ruling out any such possibility.
It can be added that the same strengthens the conclusion arrived earlier of the appellant attempting to give false explanation to the incriminating circumstance established by the prosecution.
24. In addition to the aforesaid, it can be said that the prosecution, through evidence of PW5 and the evidence of PW6 has established that as sequel to the statement leading to the discovery of the black string made by appellant, PW6 seized black string produced by the appellant from the house in question by drawing seizure Panchanama Exh.-18. The learned counsel for the appellant tried to assail the evidence of PW5 and PW6 adduced by the prosecution by ::: Downloaded on - 06/01/2014 03:36:23 ::: 22 submitting that the prosecution being required to cross-examine PW5 said evidence is of not much assistance to the prosecution for establishing said recovery and seizure. It was also canvassed that the prosecution having not established the nexus of the said recovery with the crime in question by producing any report of the Chemical Analyser regarding the scrapping from the neck or scrapping of skin etc. were found on the said string.
25. After carefully considering the evidence of both the witnesses, we are unable to find much substance in the said submission canvassed as we find that though PW5 was initially unable to depose regarding the fact of disclosure made by the appellant but had deposed regarding further events happened thereafter, the learned A.P.P. was required to cross-examine him. We further find that during the said cross-
examination, the learned A.P.P. was successful to bring on record regarding the statement made by the appellant regarding string and panchanama of the same was drawn and thereafter seizure being effected as revealed from the said evidence. The corroboration to the said evidence of PW5 is also found from the evidence of PW6. We do not find core of said evidence regarding occurrence of such events was shattered during the cross-examination.
26. With regard to further submissions canvassed, we find that in ::: Downloaded on - 06/01/2014 03:36:23 ::: 23 light of the evidence of PW2 that the injury caused on the neck of the deceased was possible by said string, we are unable to accept the submission that absolutely no nexus of said string with the crime in question was established by the prosecution. Since, during the discussion made earlier, we had already concluded about the series of potential of circumstances of non explanation on the part of the appellant and the other evidence on record, we do not propose to indulge in threadbare dilation about the said evidence adduced by the prosecution regarding discovery and seizure of string as sequel to the submission leading to the discovery made by the appellant.
27. As a net result of the aforesaid discussion, we find that the prosecution has established on the record circumstances as observed by the trial court in the judgment appealed. We further find that the said circumstance taken into consideration together, forms a formidable chain leading to the sole inference about the guild of the appellant in committing offence under sections 302 and 201 of the IPC. We find that though the prosecution, through evidence of PW1 and PW3, has established the harassment and cruelty caused to deceased Sundarabai, still considering the reason behind the said cruelty, we find that the aforesaid circumstance or such evidence of both the said witnesses was not capable of reaching to the conclusion of guilt of the appellant in commission of an offence under section 498 A of the IPC. Similarly, we ::: Downloaded on - 06/01/2014 03:36:23 ::: 24 find that while considering the effect of circumstances established, the trial Court in proper perspective has found the said evidence/ circumstance being capable of inference of guilt of the appellant guilty and not other accused and as such convicted only the appellant. Since, the said reasoning given by the trial Court is logical and based upon evidence on record, without reiterating and without indulging in detailed evaluation thereto, we observe that we do not find any fault with the said conclusion arrived by the trial court.
28. Resultantly, we do not find any merit in the appeal preferred by the appellant and dismiss the appeal.
Registry to forward the copy of this judgment to the appellant through the Superintendent of Prison at which he is lodged.
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 his fees to the extent of Rs.2200/-.
(P.D. KODE, J.) (SMT. V.K. TAHILRAMANI, J.)
kahale
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