Bombay High Court
Smt. Mangal Chandrakant Tarde vs The State Of Maharashtra on 12 September, 2014
Author: A.R. Joshi
Bench: V. K. Tahilramani, A.R. Joshi
Deshmane
Deshmane
1
203.APPEAL.691-10JUDGMENT.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.691 OF 2010
Smt. Mangal Chandrakant Tarde,
Age 37 years, Occupation - Household,
Residing at - Laxman Gavali Chawl,
Alandi Road, Bhosari, Pune.
(At present detained in Yerawada Central
Prison, Pune) ..Appellant
[Orig. Accused]
Versus
The State of Maharashtra
(through officer-in-charge,
Bhosari Police Station, Pune) ..Respondent
....
Ms. Sarojini Upadhyay, Advocate appointed for the
Appellant.
Mrs. A.S. Pai, APP for the Respondent/State.
....
CORAM : V. K. TAHILRAMANI, &
A. R. JOSHI, JJ.
DATE : 12th SEPTEMBER, 2014
ORAL JUDGMENT: (PER A.R. JOSHI, J.)
1. Heard rival submissions at length on this appeal preferred by the appellant/accused No.1 in the matter of conviction for the offence punishable under Section 302 1 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 2
203.APPEAL.691-10JUDGMENT.doc of IPC. In Sessions Case No.474/2008, two accused persons were tried including the present appellant/accused No.1. Said Sessions Case ended in conviction of the present appellant/accused No.1 for the offence punishable under Section 302 of IPC and ended in acquittal of original accused No.2. Separate Criminal Appeal has been preferred by the State being Criminal Appeal No.89 of 2011 challenging the acquittal of original accused No.2. However, that appeal had already come to an end. Now, we are concerned with only the present appeal preferred by the appellant/accused No.1.
2. The case of the prosecution in brief is as under :
During the relevant time of August 2007, the present appellant/accused No.1 and her husband one Chandrakant were staying together at Gavali Chawl, Bhosari, Pune. Their children were staying away and not with them. Brother of the victim Chandrakant and uncle of Chandrakant were staying away at some distance at Patil Chawl, Bhosari, Pune. In the morning of 13.8.2007, present appellant/accused No.1 rushed to the house of 2 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 3
203.APPEAL.691-10JUDGMENT.doc one Balasaheb (PW-2), uncle of the victim Chandrakant. She narrated him the incident that her husband Chandrakant has been murdered at their house.
By that time, brother of the victim one Vilas (PW-1) was also present there. Both PW-1 and PW-2 enquired with the appellant/accused No.1 as to how it happened but she could not answer and she was rather in disturbed mental condition. As such, they three came down to the house of the victim and the appellant/accused No.1 at Gavali Chawl and noticed the dead body of victim Chandrakant lying on the Diwan in a pool of blood having severe injuries on his person, mainly, on the abdomen.
Intestine had also came out from the injury on abdomen.
As such, they all went to nearby police chowky and thereafter at Bhosari police station present appellant/accused No.1 was interrogated probably on the suspicion that she was instrumental in murder of victim Chandrakant.
3. Also it is a case of the prosecution that at the police station, the appellant/accused No.1 confessed that 3 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 4
203.APPEAL.691-10JUDGMENT.doc she had done away with her husband Chandrakant as he was obstacle in the love affair between her and accused No.2 her paramour who was also working in the same company where she was working. According to the case of prosecution, she further revealed before the police officer that she gagged mouth of her husband Chandrakant by means of pillow and accused No.2 (her paramour) assaulted Chandrakant by means of knife causing severe injuries and apparently causing instantaneous death. On this revelation, PW-1 Vilas Tarde lodged his complaint, which was treated as First Information Report (Exhibit-16) and the offence was registered against the present appellant/accused No.1 and also against accused No.2 who was her paramour.
4. After registration of offence further investigation was conducted during which spot panchnama was prepared after visiting the house of the appellant/accused No.1. Also inquest panchnama was prepared on the dead body of Chandrakant and the body was sent for postmortem. Postmortem report 4 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 5
203.APPEAL.691-10JUDGMENT.doc (Exhibit-37) was received. The postmortem was conducted by PW-5 Dr. Thorat. At this juncture the injuries noticed by Dr. Thorat can be mentioned for the sake of advantage in order to ascertain that it was a case of homicidal death of Chandrakant. Said injuries were as follows :
1] Transverse lacerated wound on upper 1/3rd of right arm on medial aspect measuring 3 c.m. X 3/4th c.m. tapering laterally, margins of wound irregular at few places, blood clot noted at the edges of wound.
2] Slightly oblique stab wound extending from second to fourth inter costal space on right side medial to mid clavicular line measuring 5 c.m.
X 2 c.m. Margins of wound clean cut, blood clot noted at the edges of wound. Piercing underneath subcutaneous tissue, muscles, clean cut fracturing underneath third rib, piercing underneath plura correspondingly piercing underneath lung through and through with 5 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 6
203.APPEAL.691-10JUDGMENT.doc wound of entry measuring three and half c.m. X 3/4th c.m. and wound of exist measuring 2 and half c.m. X half c.m. correspondingly. Lung is collapsed and cut section pale. Piercing under neath pericardium correspondingly. Piercing underneath full thickness of lateral wall of right ventricle measuring 2 c.m. X 1/4 th c.m.
correspondingly about 1100 cc of blood and clot collected in chest cavity.
3] Oblique Y shape lacerated wound lateral to right nipple extending 2 c.m. above the level of nipple. Upper V of Y is measuring 9 c.m. and lower vertical arm of Y measuring 5 c.m..
Margins of wound irregular at few places, blood clot noted at the edges of the wound.
4] Slightly oblique incised wound extending from 8th to 10th ribs right side measuring 7 c.m.
Margins of wound clean cut, blood clot noted at the edges of wound.
5] Slightly oblique incised wound extending medial 6 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 7
203.APPEAL.691-10JUDGMENT.doc to right mammary line to right hypochondrium.
Margins of wound clean cut, blood clot noted at the edges of the wound.
6] Slightly oblique incised wound 7 c.m. below injury no.5 and 7 c.m. right to mid line measuring 7 c.m. X 1/4th c.m. Margins of wound clean cut, blood clot noted at the edges of wound.
7] Triangular stab wound on right lumber region 1 c.m. Above the level of umbilicus and 11 c.m.
Right to mid line measuring 6 c.m. x 5 c.m.
Piercing under neath subcutaneous tissue, muscles and peritonium correspondingly opening into abdominal cavity. Margins of wound clean cut, blood clot noted at the edges of the wound.
8] Transverse lacerated wound 1 and half c.m.
below injury no.7 measuring 1 c.m. X 1/4 th c.m.
Margins of wound irregular at few places, blood clot noted at the edges of wound.
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203.APPEAL.691-10JUDGMENT.doc 9] Oblique abrasion on upper 1/3 rd of right leg on antero lateral aspect measuring one and half c.m. X 1/4th.
10] Abrasion on middle one third of right forearm on dorsal aspect measuring 2 c.m..
11] Transverse incised wound 4 c.m. above right elbow joint on dorsal aspect in size 3 c.m. X half c.m. Margins of wound clean cut, blood clot noted at the edges of wound.
12] Transverse stab wound on mid line on the back in size 3 c.m. X 1 c.m. Piercing underneath subcutaneous tissue, muscle correspondingly margins of wound clean cut, blood clot noted at the edges of wound.
5. During investigation, clothes of the deceased were seized under panchnama. So also the present appellant/accused No.1 and accused No.2 were put under arrest and their clothes were also taken charge of.
According to prosecution on 14.8.2007 i.e. after few days of the incident accused No.2 made voluntary statement 8 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 9
203.APPEAL.691-10JUDGMENT.doc and at his instance one knife was recovered. At this juncture, no much details are required to be given so far as the case as against the accused No.2 is concerned as he has been already acquitted by the trial Court and the appeal is already disposed of and we are concerned only with the appeal preferred by the appellant/accused No.1.
6. At the end of the investigation, the seized articles were sent for chemical analysis including clothes of the victim, clothes of the accused persons and the knife recovered at the instance of the accused No.2 and also the articles recovered during the spot panchnama. After completion of investigation, chargesheet was filed and the matter was tried being Sessions Case No.474 of 2008.
During trial, total eight prosecution witnesses were examined and the matter ended in conviction of the appellant/accused No.1 for the offence punishable under Section 302 of IPC and acquittal of accused No.2.
7. So far as the case as against the present appellant/accused No.1 is concerned, out of eight total prosecution witnesses, the important witnesses are PW-1 9 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 10
203.APPEAL.691-10JUDGMENT.doc and PW-2 and the circumstances that the present appellant/accused No.2 is the wife of the victim and was staying along with him at Gavali chawl. The substantive evidence of these two witnesses i.e. PW-1 and PW-2 shall be dealt with hereunder, however, a cursory reference is required to be made regarding evidence of other witnesses in order to have proper perspective of the case and how the prosecution has tried to establish the case against both the accused. PW-3 is a spot pancha, however, he has not supported the case of the prosecution but it may not be a mitigating circumstance to the case of the prosecution inasmuch as finding of the dead body at the residential premises of the appellant/accused No.1 has not been controverted. Moreover, homicidal death of the victim is also not in question. PW-4 is a pancha regarding recovery of knife at the instance of the accused No.2. As such, this evidence is of no significance so far as the present appeal is concerned. PW-5 is Dr. Thorat who conducted the postmortem and found out various injuries, as detailed earlier. PW-6 is one Deepak Chavan, who is 10 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 11
203.APPEAL.691-10JUDGMENT.doc the neighbour of the appellant/accused No.1 and victim Chandrakant. Again so far as this witness is concerned, his evidence is concerning presence of the accused No.2 on the night of the incident at the house of appellant/accused No.1 for a limited period from about 10:00 p.m. or thereabout till 11:30 p.m. or thereabout.
Still this witness is of no much significance so far as the present appeal is concerned as he is mainly on the aspect as to involvement of accused No.2 and at the cost of repetition it must be mentioned that involvement of accused No.2 has been negated by the trial Court and he had been acquitted. Again PW-7 is the owner of the room where allegedly accused No.2 threw the knife and produced it under panchnama. As such PW-7 is also of no significance so far as involvement of present appellant/accused No.1 is concerned. PW-8 Prabhakar Pawar is the investigating officer.
8. Now substantive evidence of PW-1 Vilas Tarde and PW-2 Balasaheb Tarde is required to be construed in the light of the factual position and this factual position 11 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 12
203.APPEAL.691-10JUDGMENT.doc firstly to be mentioned that the present appellant/accused No.1 was the wife of the victim Chandrakant and she was residing with him at the address where the dead body of the victim was found. Substantive evidence of PW-1 and PW-2 is consistent on the aspect that the appellant/accused No.1 visited the place of PW-2 Balasaheb in the early morning of 13.8.2007 and informed him regarding the death of her husband in the house. PW-1 and PW-2 accompanied her to her house but only after they tried to enquire with her as to how it happened, that time the appellant/accused No.1 could not answer properly and was rather disturbed. They all came back to the house of accused No.1 where they noticed Chandrakant lying on Diwan in a pool of blood with severe injuries as detailed above and then the matter was referred to the police. These two witnesses have been cross examined on behalf of both the accused.
However, there is no slightest of the suggestion given to these witnesses that the appellant/accused No.1 did not attend the place of PW-2 early in the morning of 12 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 13
203.APPEAL.691-10JUDGMENT.doc 13.8.2007 and did not inform anything regarding murder of her husband. During the arguments, for the first time the learned Appointed Counsel for the appellant/accused No.1 submitted that on the relevant night the appellant was not at home at all. This defence is coming for the first time before us and there is not a single sentence in the cross-examination of these important witnesses PW-1 and PW-2. Moreover, there is nothing in the statement of the appellant/accused No.1 recorded under Section 313 of Cr.P.C.. Needless to mention that it is not incumbent upon the accused to putforth his case and prove it but if the plea of alibi or similar such plea is taken then it is must for the accused at least on preponderance of probabilities to establish such defence. We have observed that during the trial this defence of alibi was not at all taken not even in the cross-examination of the witnesses much less in 313 Cr.P.C. statement. Still at this stage if such defence is to be tested then it must be said that there is nothing on record even on preponderance of probabilities to endorse this defence 13 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 14
203.APPEAL.691-10JUDGMENT.doc raised on behalf of the appellant/accused No.1.
9. Much is argued on the substantive evidence of PW-6 Deepak Chavan, a neighbour of the victim. It is brought to our notice that in his substantive evidence he has not specifically mentioned that the appellant/accused was definitely in the house on the relevant night of 12.8.2007. It is also brought to our notice that his substantive evidence indicate that accused No.2 entered the house and somebody from inside opened the door for him and said PW-6 is silent on the point as to who opened the door for accused No.2. By pointing out this, it is strongly submitted on behalf of the appellant/accused No.1 that absence of any mentioning by PW-6 as to presence of the appellant/accused No.1 at the house of the victim on that relevant night goes to show that she was not at home on that night. However, such presumption cannot be drawn only for non mentioning to that effect by PW-6 when other attaining circumstances are before us as to admittedly present appellant/accused No.1 was legally wedded wife of the victim and she had 14 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 15
203.APPEAL.691-10JUDGMENT.doc never pleaded or raised any defence that she was not staying at Gavali Chawl along with victim at any time or for that matter at least not staying with him on that night of the incident. In view of this, evidence of PW-6 cannot be taken shelter of appellant/accused No.1 though suggested by the learned Advocate for the appellant.
10. Another circumstance which is against the appellant/accused No.1 is finding of blood stains of "A"
group on the clothes of the appellant. It is an admitted position that the blood of the victim was of "A" group.
Though, there is nothing on record to suggest that the blood group of the appellant/accused No.1 was also determined, there cannot be any argument on behalf of the appellant/accused No.1 as to finding of the blood on her clothes was probably of her own in the absence of any plea that she had also sustained some injuries on that night or at least she had happened to handle the dead body. In fact silence of the appellant/accused No.1 as to how her husband met homicidal death, is significant and speak volumes and as such in our considered view 15 / 17 ::: Downloaded on - 24/09/2014 23:15:51 ::: Deshmane 16
203.APPEAL.691-10JUDGMENT.doc Section 106 of Evidence Act comes into operation. Again at this juncture, it must be mentioned that the panchnama regarding seizure of the clothes of accused persons including the appellant/accused No.1 has been admitted during the trial and said panchnama is marked as Exhibit-17. Apart from this panchnama, other three panchnamas are also accepted on behalf of the accused and they are Exhibit-25 being seizure of clothes of the victim, Exhibit-26 inquest panchnama on the dead body of the victim and Exhibit-27 arrest panchnama of accused Nos.1 and 2.
11. With the above material at hand, the factual position emerges that there was a homicidal death of the victim and at the house where the appellant/accused No.1 was also staying. Secondly, on the next day morning she informed regarding murder of her husband to PW-2 and also PW-1 and along with them come to the house without giving any explanation as to how the death of her husband occurred. Thirdly the circumstance is to the effect that her clothes were having blood stains of "A"
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203.APPEAL.691-10JUDGMENT.doc group which is blood group of the victim. Definitely it is not the defence of the appellant/accused as that of alibi and only the defence raised during the trial was of total denial and false implication. As such, there is nothing in the present appeal so as to interfere with the impugned judgment and order. Hence, the present appeal is accordingly dismissed and disposed of. Present order be communicated to the appellant through the concerned jail authorities where she is presently lodged.
12. At this stage, we must record our appreciation for Ms. Sarojini Upadhyay, appointed from the High Court Legal Services Committee Bombay to represent the appellant. We found that she had meticulously prepared the matter and she has very ably argued the matter. We quantify legal fees to be paid to her by the High Court Legal Services Committee at Rs.5000/-.
(V. K. TAHILRAMANI, J.) (A. R. JOSHI, J.) 17 / 17 ::: Downloaded on - 24/09/2014 23:15:51 :::