Bombay High Court
Sevak Ramrao Rathod vs The State Of Maharashtra on 11 April, 2017
Author: S.S.Shinde
Bench: S.S.Shinde, K.K.Sonawane
221.2013Appeal+.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.221 OF 2013
Sevak s/o. Ramrao Rathod,
Age : 26 Years, Occ : Agri.,
R/o. Bhategaon, Tq. Kalamnuri,
Dist. Nanded.
[At present appellant is in
jail] APPELLANT
[Ori. Accused No.1]
VERSUS
The State of Maharashtra. RESPONDENT
...
Mr.V.R.Dhorde, Advocate for Appellant
Mr.S.B.Yawalkar, APP for Respondent/State
...
WITH
CRIMINAL APPEAL NO.209 OF 2013
1. Premdas s/o. Ramrao Rathod,
Age: 26 Years, Occ : Agri.,
R/o. Bhategaon, Tq.Kalamnuri,
Dist. Nanded.
2. Sow. Kavita Devidas Chavan,
Age: 32 Years, Occ : Household,
R/o. Bhategaon, Tq. Kalamnuri,
Dist. Nanded.
3. Sow. Rekha Premdas Rathod,
Age: 22 Year, Occ : Household,
R/o. Bhategaon, Tq.Kalamnuri,
Dist. Nanded. APPELLANTS
[Ori.Accused Nos.
2 to 4]
::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 :::
221.2013Appeal+.odt
2
VERSUS
The State of Maharashtra. RESPONDENT
...
Mr.V.R.Dhorde, Advocate for Appellants
Mr.S.B.Yawalkar, APP for Respondent/State
...
CORAM: S.S.SHINDE &
K.K.SONAWANE,JJ.
Reserved on : 30.03.2017
Pronounced on : 11.04.2017
JUDGMENT:(Per S.S.Shinde, J.):
1] Criminal Appeal No.221/2013 is filed by appellant i.e. original accused no.1 -
Sevak Ramrao Rathod, and Criminal Appeal No.209/2013 is filed by appellant nos.1 to 3, i.e. original accused nos.2 to 4. Both the Appeals are arising out of the Judgment and Order dated 20th April, 2013, passed by the Additional Sessions Judge, Hingoli in Sessions Trial No.63 of 2011, therefore, same are heard together and being disposed of by common judgment and order.
An original accused no.1 - Sevak ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 3 Ramrao Rathod is convicted for the offence punishable under Section 498-A of the IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000/- [Rs. Three thousands], in default of payment of fine amount to suffer rigorous imprisonment for three months. Appellant -
accused No.1 is further convicted for the offence punishable under Section 302 of the IPC and sentenced to suffer life imprisonment and to pay a fine of Rs.10,000/- [Rs. Ten Thousands], in default of payment of fine amount, he is to suffer rigorous imprisonment for six months. Appellant - original accused no.1 is also convicted for the offence punishable under Section 201 of the IPC and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000/- [Rs. Five thousands] and in default of payment of fine amount he is to suffer rigorous imprisonment for four months. ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 :::
221.2013Appeal+.odt 4 Appellants - original accused nos.2 to 4 in Criminal Appeal No.209/2013, are convicted for the offence punishable under Section 498-A of the IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000/- [Rs.Three thousands], each in default of payment of fine amount, accused nos.2 to 4 to suffer rigorous imprisonment for three months. 2] The prosecution case in nutshell is as under:
On 14th July, 2011, one Avdhut s/o.
Sheshrao Hake, Police Patil, resident of Bhategaon, Taluka Kalamnuri visited Dongarkada Police Outpost Chowki, and reported orally that, when he was in weekly market at Waranga, at about 4.00 p.m., he received telephonic message on his mobile through the President of Tanta Mukti, Bhategaon, namely Bhausingh Ratansingh Rathod ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 5 that, Komal wife of Sevak Rathod [original accused no.1], aged 20 years, found dead in the well. The dead body is floating on the water. He went at Bhategaon at about 5.00 p.m. and personally verified that, the dead body of woman was brought on surface of the water by means of thorny bushes. He has stated that an accused no.1 - Sevak Rathod was not present in his house. He intimated death of Komal to him. In the aforesaid background, he requested the concerned Police Station to enquire / investigate the death of Komal wife of the appellant - Sevak. The Incharge Police Station Officer had taken note of said information in the Station Diary at Serial No.41 at 10.00 p.m., and Accidental Death Case No.38/2011, under Section 174 of the Criminal Procedure Code was registered.
An enquiry was handed over to the Police Head Constable, B.No.320. The said Police Head Constable visited the spot. The dead body was ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 6 removed from the well, and inquest panchanama was prepared. The dead body was referred to the Medical Officer, Primary Health Centre, Dongarkada, where the postmortem was conducted. It was revealed that, the death of Komal was due to intracraneal hemorrhage due to head injury, and accordingly, viscera was preserved.
3] On 15th July, 2011, father of deceased Komal, namely Tukaram Gangaram Jadhav, resident of Kanjala Tanda, Taluka Loha, District Nanded, upon receiving the telephonic message from the appellant - Sevak, went to village Bhategaon at about 4.00 p.m. along with his son namely Sanjay, and witnessed dead body of Komal. Accordingly, he filed First Information Report in the Police Station on 15th July, 2011. It was stated in the said First Information Report that, he is blessed with two daughters namely Laxmibai and Komal and ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 7 two sons namely Vinayak and Sanjay. The marriage of Komal was performed with the appellant - accused no.1, namely Sevak Ramrao Rathod in the year 2010. The marriage was settled and was performed, as per the rites and customs prevailing in their community / caste. The deceased Komal knew swimming. After marriage, Komal went to village Bhategaon and started cohabitation with appellant - Sevak for a period of one month, and initially, she was treated well. Later on, appellant [accused no.1], his brother-in- law Premdas [accused no.2], his sister Rekha [accused no.4], and another sister Kavita [accused no.3] started demanding Rs.50,000/-, so as to purchase auto-rickshaw. On that count, Komal was subjected to mental and physical harassment / cruelty by the afore- mentioned persons. Even prior to 7 months of alleged incident, due to mental cruelty and harassment by the appellant-Sevak and his ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 8 relatives, Komal consumed poison, and she was hospitalized, however, she survived. It is further stated that, after aforesaid incident, one Tukaram Gangaram Jadhav had convinced appellant-Sevak [accused no.1], and in-laws of Komal and advised them to treat Komal properly. Prior to two months of the incident, Komal consented for cohabitation with the appellant-Sevak, and accordingly, Komal was taken by the appellant-Sevak at Bhategaon. However, appellant-Sevak continued the harassment and ill-treatment on account of demand of Rs.50,000/-. The accused in furtherance of their common intention had dealt blow on the head of Komal and murdered her. Thereafter, the dead body was thrown in the well so as to destroy and cause disappearance of the evidence.
On the basis of the report lodged by the father of Komal, note was taken in the Station diary at about 4.15 on 15th July, ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 9 2011, and accordingly, Crime No.61/2011 came to be registered for the offence punishable under Sections 498-A, 304-B, 302 and 201 r/w. 34 of the IPC. The investigation was handed over to API Mr.Ashok Ghorbande, who caused investigation, recorded the statements of the witnesses, arrested the accused, carried out the spot panchanama, and collected articles for further investigation. When appellant [accused no.1] was in Police custody, he made disclosure statement and pursuant to it, there was recovery of Article No.5 i.e. wooden rafter at the instance of the appellant [accused no.1]. Further investigation was carried out by the said Investigation Officer, some articles were sent to the Chemical Analyzer, and after investigation, charge-sheet was filed in the Court of Judicial Magistrate First Class, Kalamnuri. Since the offences were exclusively triable by the Judicial ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 10 Magistrate First Class, Kalamnuri, committed the case to the Court of the Additional Sessions Judge, Hingoli, the accused pleaded not guilty. The trial proceeded further, and after conducting full-fledged trial, the trial Court convicted and sentenced the accused in a manner stated in para no.1. 4] The learned counsel appearing for the appellants submits that, the evidence of Tukaram Gangaram Jadhav [PW2], Sitaram Gangaram Jadhav [PW4], and Vinayak Tukaram Jadhav [PW5], on the issue of alleged ill- treatment, harassment and cruelty suffers from the inherent contradictions, omissions, improvements and exaggeration. The father of Komal [deceased] even did not remember the date of marriage between the appellant - Sevak and Komal [deceased], and therefore, his evidence cannot be believed. He has admitted in his evidence that, the appellant
- Sevak possesses 10 acres irrigated land. ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 :::
221.2013Appeal+.odt 11 Therefore, an allegation of demand of Rs.50,000/- by the appellant - Sevak from the Tukaram Jadhav [PW2], is impossible inasmuch as the financial position of the appellant - Sevak vis-a-vis Tukaram Jadhav [PW2], is much better. It is submitted that, so far consumption of poison by Komal much prior to the alleged incident cannot be given importance inasmuch as the appellant - Sevak was instrumental to take Komal [deceased] in the Hospital, and she was properly treated and then discharged from the Hospital. The trial Court has unnecessarily given importance to an earlier incident of the consumption of poison by Komal [deceased]. In respect of said incident, Tukaram Jadhav [PW2] did not file any complaint. It has come in the evidence of Tukaram Jadhav [PW2] that, after said incident Komal [deceased] went to the matrimonial home for cohabitation with the appellant - Sevak, and they were residing ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 12 happily thereafter. He invites our attention to the evidence of Sitaram Jadhav [PW4] and submits that, if his evidence is read in its entirety, it can be safely gathered that, he had no knowledge of day to day life of Komal. He has stated in his evidence that, Komal was Hospitalized for 10-15 days, when she consumed poison. As a matter of fact she was discharged from the Hospital within four days. He submits that, so far other co- accused are concerned, they have neither any role to play in the alleged commission of offence nor they were lastly residing with the appellant - Sevak and Komal [deceased]. Even one of the co-accused, who is a sister of the appellant - Sevak, is married prior to the marriage of the appellant - Sevak with Komal [deceased]. The learned counsel also vehemently criticized the evidence of Vinayak Jadhav [PW5] and submits that, even Vinayak Jadhav [PW5] was not aware about day ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 13 to day life of Komal. In his evidence, he has made statements contrary to the fact situation, and therefore, the evidence of Tukaram Jadhav [PW2], Sitaram Jadhav [PW4] and Vinayak Jadhav [PW5], on an alleged ill- treatment and harassment to the Komal [deceased], deserves to be disbelieved. 5] He further submits that, if the evidence of Dr.Dwarkadas Madhavrao Nakhate [PW8] is considered in its entirety, it does not indicate that, the death of Komal was homicidal. He submits that, Dr.Dwarkadas Nakhate [PW8] was not qualified inasmuch as he is possessing qualification of B.A. M.S. Dr.Dwarkadas Nakhate [PW8], during his cross examination, stated that, he knows the diadem test. In that test, Microscopic examination of tissues like brain, liver, bone marrow is undertaken and the said test is helpful in confirming as to the cause of death due to drowning. He did not carry such test. The ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 14 learned counsel for the appellants invites our attention to the classification of drowning from the book titled a 'Medical Jurisprudence and Toxicology' written by Prof.T.D.Dogra, and submits that drowning might be of four types, which are wet or primary drowning, dry drowning, secondary drowning, near drowning or post immersion syndrome and immersion syndrome, hydrocution or submersion inhibition. He submits that, depending upon the type of water body within which drowning occurs, the same can be further classified. He submits that, in case of dry drowning like in the present case, water does not enter the lungs. Death results from immediate sustained laryngeal spasm following entry of water into the nasopharynx or larynx. A mucous plug might at times be found in the trachea of such victims. He submits that, Dr.Dwarkadas Nakhate [PW8] has admitted in his cross examination that, ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 15 contusion is a simple injury, and it is correct that, there is infiltration of blood in vessels. Heamaotoma is a collection of blood. He admitted that, injury no.1 in column no.19 is a corresponding injury in column no.17. Such injury may be caused in accident fall and when such part of body comes in contact of hard object. He submits that, Dr.Nakhate [PW8] has not given definite finding that, when the death of Komal occurred. The learned counsel vehemently submitted that, the prosecution has utterly failed to establish that, whether the death of Komal was homicidal, suicidal or accidental. He submits that, death of Komal was accidental. He invites our attention to the statements of the appellant-Sevak in his defence and submits that, though probable defence was taken by the appellant-Sevak, the same has not been considered at all by the trial Court. He submits that, the evidence of ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 16 the defence witnesses have not been discussed at all by the trial Court. The appellant - Sevak has probabilized the defence, and therefore, the benefit of doubt deserves to be extended to the appellant-Sevak. 6] It is submitted that, Komal was not happy with the marriage with appellant-Sevak and she consumed poison in earlier point of time. The appellant-Sevak was having 10 acres irrigated land and father of Komal was having only 4 acres of dry land, and the financial position of father of Komal was very precarious and at any point of time, it cannot be imagined that, the appellant - Sevak had made demand of Rs.50,000/- to the parents of the Komal [deceased]. The appellant - Sevak had no license to drive the Auto-rickshaw, and therefore, there was no question of demand of Rs.50,000/- from the parents of Komal and harassment of the Komal. Komal did not complain before anybody about ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 17 the harassment being caused to her, or Tukaram Jadhav [PW2] also did not complain, and therefore said conduct of both speaks volume. The appellant-Sevak was residing separately along with Komal and on the date of incident, he had gone to bring the labour charges from Shamrao Munaji Sontakke [DW2] to adjoining village Mahalinga. Said Shamrao [DW2] in his evidence, has stated that, the appellant-Sevak came to him in the morning hours on the date of incident.
7] It is submitted that, there is no evidence on record to show that the appellant
- Sevak was seen along with the said Komal in the house, and had caused any hurt to her and thereafter removed her body and thrown the same in the well, more particularly, when the real maternal aunt Shashikalabai of said Komal is residing in adjoining hut, and who has also categorically stated in her evidence that the said Komal has not meted out any ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:51 ::: 221.2013Appeal+.odt 18 harassment at the hands of the appellant - Sevak and his family members. It is submitted that, the Additional Sessions Judge has erroneously held that, the death is homicidal and not accidental when the pot for carrying water was found near the well, and thereafter, search for the said Komal was made by using hook and rope inside the well, and her body was found in the well in presence of the villagers. It is submitted that, the evidence of Dr.Nakhate [PW8], is not sufficient to come to the conclusion that the death is not due to drowning more specifically in absence of the diadem test. It is submitted that, the Additional Sessions Judge has erroneously held that, the prosecution has proved that, the death is homicidal and not accidental by ignoring the evidence of spot panchanama, evidence of Shashikalabai [DW1], real aunt of the deceased Komal and Shamrao Sontakke [DW2] ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 19 from village Mahalinga.
8] It is submitted that, there is sufficient evidence on record to suggest that, the said death is accidental more particularly when the appellant-Sevak along with others have searched the said Komal and the said Komal was not found. It is only after pot was found her search carried out in the well water and her body was taken out in presence of the villagers. It is submitted that, the father of Komal had never complained about consumption of poison by her daughter in earlier point of time. As a matter of fact, Komal was admitted in the Hospital and after treatment, she had been brought to home. It is submitted that, after the appellant-Sevak returned to his native place with Komal from the house of parents of said Komal, the appellant-Sevak started residing separately with the Komal, and therefore, there was no question of demand of ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 20 Rs.50,000/- by the accused nos.2 to 4. It is submitted that, the chain of circumstances namely that the said Komal was found in the well and was not seen with the appellant- Sevak at any point of time prior thereto, and the pot was found near the well clearly indicates that the death is accidental and not homicidal.
9] It is submitted that, in view of the cogent evidence on record that the real aunt of the said Komal is staying nearby hut of the appellant, and she had taken search of the said Komal with the appellant-Sevak, clearly shows that, the appellant-Sevak was not in the house at the time when the incident has taken place. Hence, the appellant-Sevak cannot be held guilty for the alleged incident. It is submitted that, there is no evidence to show that the appellant - Sevak had caused injury to said Komal elsewhere and then thrown the body of said ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 21 Komal in the well so as to destroy the evidence, and therefore, the conviction under Section 201 of the Indian Penal Code is erroneous. It is submitted that, in view of the serious omissions and contradictions in the evidence of Dr.Nakhate [PW8], it will have to be held that, the said Komal died accidental death.
10] The learned counsel appearing for the appellants invites our attention to the judgment of the Supreme Court in the case of Harendra Narain Singh etc. Vs. State of Bihar1 and submits that, if case resting on circumstantial evidence and if two views are possible one pointing to guilt and another to innocence of accused, the Court should adopt latter view. He also invites our attention to the ratio laid down in the case of Sujit Biswas Vs. State of Assam2 and submits that, it is observed by the Supreme Court in the 1 AIR 1991 SC 1842 2 [2013] 12 SCC 406 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 22 said judgment that, in a case of circumstantial evidence, it is essential to decide, whether or not chain of circumstances is complete. No matter how weak evidence of prosecution may be, it is the duty of the court to examine accused, and to seek his explanation as regards incriminating material that has surfaced against him. He also pressed into service judgment of the Supreme Court in the case of Dhal Singh Dewangan Vs. State of Chhattisgarh, in Criminal Appeal Nos.162-163 of 2014, decided on 23rd September, 2016, and submits that, in the facts of that case, the prosecution did not bring on record evidence why the appellant was lying unconscious on the scene of occurrence. That case was also examined on the basis of circumstantial evidence and benefit of doubt was given to the appellant, though he was found in the house in unconscious condition holding knife in his ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 23 hand. The learned counsel further pressed into service judgment in the case of Jumni and others Vs. State of Haryana3 and submits that, the accused has to discharge burden by probabilizing the defence, and he is not supposed to discharge the burden like the prosecution. In short his submission is that the defence taken by the accused needs to be probabilized by him by preponderance of probabilities and not by bringing on record strict proof like the prosecution has to prove its case.
11] The learned counsel for the appellants further submits that, so far as other accused are concerned, they were not residing with accused - Sevak when the incident had occurred. One of the accused, sister of Sevak got married, even prior to marriage of Sevak with Komal. The evidence of the prosecution witnesses of alleged 3 [2014] 11 SCC 355 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 24 harassment and cruel treatment to the Komal, so as to attract the ingredients of Section 498A of the Indian Penal Code, as against the accused is too short, general and vague in nature. Therefore, their conviction for the offence punishable under Section 498-A deserves to be set aside.
12] The learned counsel appearing for the appellants, without prejudice to the arguments already advanced, by way of alternate submission prays that, the case of accused - Sevak may be considered under one of the exception under Section 300 of the Indian Penal Code, and he may be released forthwith.
13] The learned APP appearing for the respondent - State invites our attention to the findings recorded by the trial Court and also the evidence of the prosecution witnesses and submits that, the trial Court ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 25 has recorded findings, which are consistent with the evidence brought on record. He invites our attention to the evidence of Dr.Nakhate [PW8] and submits that, he has given clear findings that, the death of Komal was homicidal. He also invites our attention to the evidence of Tukaram Jadhav [PW2], Sitaram Jadhav [PW4] and Vinayak Jadhav [PW5] and submits that, through the said witnesses the prosecution has proved beyond reasonable doubt that there was constant ill-treatment and cruelty at the hands of the appellants to Komal for bringing Rs.50,000/- to purchase auto-rickshaw. He further submits that, the defence of the appellant-Sevak that, he was not present in the house during the morning hours on the date of incident, has not been probabilized by him. Admittedly, the appellant - Sevak possessed 10 acres irrigated land, and therefore, his contention that he went to collect money / amount ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 26 towards labour charges from Shamrao [DW2] cannot be believed. It is submitted that, appellant-Sevak was obliged to offer his explanation in view of the mandate of Section 106 of the Evidence Act, since he along with Komal were only present in the hut/house. It is admitted position that, none else than appellant Sevak and Komal were residing in the hut in the field owned by the father of the appellant-Sevak. It is submitted that, it is improbable that, when the appellant - Sevak noticed water pot lying nearby the well, instead of taking search of Komal there itself or in the well, he coolly went to the village and then along with villagers came in search of Komal. It is submitted that, the prosecution has proved beyond reasonable doubt that, the appellant - Sevak assaulted Komal on occipital parietal region and she sustained injury and after she died, appellant - Sevak throw her dead body in the ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 27 well. Therefore, the appellant - Sevak was obliged to offer his explanation under which circumstances Komal died. It is submitted that, subsequent conduct of the appellant- Sevak after the incident and taking improbable defence, can also be added as additional circumstance in the chain of circumstance. The appellant - Sevak deserves to be given maximum punishment for killing his wife Komal, who was in the helpless situation at the time of incident, inasmuch as only appellant - Sevak and his wife were residing in the hut situate in the land owned by father of the Sevak. It is submitted that, the prosecution has brought on record the distance of the well from which dead body of Komal was recovered, which is situate approximately on 100 meters distance from the hut of the appellant - Sevak. The learned APP in support of his aforesaid submissions placed reliance on the decisions, in the ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 28 cases of Sachin Vyankatrao Thosare Vs. State of Maharashtra4, Trimukh Maroti Kirkar Vs. State of Maharashtra5, Ganeshlal Vs. State of Maharashtra6, State of Karnataka Vs. Suvarnamma and another7 and Sahebrao Mohan Berad Vs. State of Maharashtra8. 14] We have heard the learned counsel appearing for the appellants and the learned APP appearing for the respondent-State at length. With their able assistance, we have carefully perused and scrutinized the entire evidence, and also the judgments cited across the Bar. At the outset, it would be useful to reproduce herein below para 31 from the judgment of the Supreme Court in the case of Krishnegowda & Ors. Vs. State of Karnataka by Arkalgud Police, in Criminal Appeal No.635 of 2006 with Criminal Appeal No.1067 of 2006, 4 2017 All MR [Cri.] 256 5 [2006] 10 SCC 681 6 [1992] 3 SCC 106 7 [2015] 1 SCC 323 8 [2011] 4 SCC 249 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 29 decided on 28th March, 2017, as a guiding factor:
31. The Court should always make an endeavor to find the truth. A criminal offence is not only an offence against an individual but also against the society. There would be failure of justice if innocent man is punished. The Court should be able to perceive both sides i.e. the prosecution as well as the defence and in our considered opinion the judgment of the High Court suffers from several defects as discussed in the preceding paragraphs.
15] Since the case in hand is based upon the circumstantial evidence, it would be gainful to reproduce herein below the parameters / guiding factors laid down by the Supreme Court, while appreciating the circumstantial evidence, in the case of Hanuman Govind Nargundkar and another Vs. ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 30 State of M.P.9, which are consistently followed in subsequent pronouncements by the Supreme Court and the various High Courts. In the said judgment, it is held thus:
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all 9 AIR 1952 SC 343 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 31 human probability the act must have been done by the accused.
16] In the light of the observations of the Supreme court reproduced herein above, in the case of Krishnegowda & ors [supra] and in the case of Hanuman Govind Nargundkar [supra], we proceed to discuss the evidence. 17] The prosecution examined Ramesh Venkatrao Sontakke [PW6]. He stated in his examination in chief that Tukaram [PW2] came to the Police Station on the date of incident and gave oral complaint. The said complaint was written down and contents of the said FIR were read over to Tukaram Jadhav [PW2]. Tukaram Jadhav [PW2] read contents of the FIR and then signed on the said FIR. His evidence remained unshattered during the cross examination.
18] The prosecution examined Tukaram Gangaram Jadhav [PW2], father of deceased ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 32 Komal, who lodged First Information Report in Akhada Balapur Police Station on 15th July, 2011. In his deposition, he stated that, Komal was his daughter and her marriage was performed prior to two years with the appellant - Sevak at village Kanjala, Taluka Loha, District Nanded. After marriage, Komal went to her in-laws for cohabitation with Sevak. His daughter informed him two months after marriage that, demand of Rs.50,000/- was made by the appellants. Komal told him that, appellants used to beat her on the count of non fulfillment of demand of Rs.50,000/-. He further stated that, Komal returned to matrimonial home, prior to and earlier 7 months of the date of incident, Komal consumed poison because of insistence by the accused to bring money. She was Hospitalized in Sanjivani Hospital, Nanded. He paid hospital bill for the treatment of Komal. She was brought to his house. She was ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 33 there for 15 days. Thereafter, appellant - Sevak came to his place. There was discussion between himself and Sevak, and he convinced Sevak not to further harass Komal, and then Sevak took her to matrimonial home. Thereafter, Komal and Sevak started residing separately in the hut situate in the field.
It is stated that, on the date of incident he came to know from appellant - Sevak that, Komal fell in well, and upon receiving said information, he himself along with his son, wife and other few villagers went to Bhategaon. They reached Bhategaon at 7.00 p.m. Thereafter, they went in the field of accused. They saw dead body of Komal in the water inside the well. The dead body was removed from the well. They saw injury to her head and bleeding from the right ear. The dead body was removed from the field and postmortem was done at village Dongarkada. The dead body was again brought to the ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 34 Bhategaon and last rites were performed at Bhategaon. He went to Akhada Balapur Police Station and lodged the First Information Report. He further stated that, appellant - Sevak and others have killed his daughter and threw her dead body in the well. Her daughter Komal was acquainted with the swimming. 19] In his cross examination, he fairly stated that, his relations with Shashikalabai, resident of Bhategaon are cordial. He further stated that, sister of the appellant Sevak namely Kavita was already married prior to marriage of Komal. Accused Prem and his wife were staying in house situated on Tanda. He reiterated that Komal consumed poison 7 months prior to the date of incident. An earlier to the date of incident, because of the tension on account of illegal demand of Rs.50,000/- by the appellants; she consumed poison. He specifically stated that, Sevak - appellant personally demanded him ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 35 amount of Rs.50,000/- to purchase auto- rickshaw, on 2-4 occasions. It appears that, since he is rustic villager, he was not able to tell correct time and date of demand made by the accused Sevak. He stated that, he possessed four acres land, and Sevak's family hold 10 acres of agricultural land. His land is dry and land of the accused Sevak is irrigated and Sevak is financially in a better position compared to him. He stated that, before they reached at Bhategaon, Police Patil of village Bhategaon, had given report about death of his daughter to Police Station, Akhada Balapur.
If the evidence of Tukaram Jadhav [PW2] is considered in its entirety, he has fairly stated about specific demand by the appellant - Sevak, and also fact that the appellant - Sevak possessed 10 acres irrigated land and he is financially sound compared to him. There is no reason to doubt ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 36 his evidence. Merely because Sevak possessed 10 acres irrigated land, and therefore, there was no possibility of demand of Rs.50,000/- by Sevak from the Tukaram Jadhav [PW2], has no any basis inasmuch as it depends upon the grid of money and mentality of a individual and also at the relevant time, whether Sevak had sufficient money with him. 20] As already observed, Tukaram Jadhav [PW2] has specifically stated about illegal and specific demand of Rs.50,000/- by the appellant - Sevak with him at least on 2-4 times, also gets corroboration and support from the evidence of Sitaram Jadhav [PW4] and also Vinayak Jadhav [PW5]. Sitaram Jadhav [PW4] and Vinayak Jadhav [PW5] both have stated in their evidence that, Komal informed them that the amount of Rs.50,000/- was demanded by appellant - Sevak to purchase auto-rickshaw and on that count, she was subjected to cruel treatment. He has also ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 37 stated about earlier incident of consuming poison by Komal. It is true that, he has stated that, the incident of consumption of poison was of 3 months prior to the incident, however, like Tukaram Jadhav [PW2] Sitaram Jadhav [PW4], he is also rustic villager, and therefore, minor discrepancies in their evidence needs to be ignored. He has also stated that, Tukaram Jadhav [PW2] paid bill of Sanjivani Hospital when Komal was admitted earlier for treatment due to consumption of poison by her. Vinayak Jadhav [PW5], has also stated in his evidence that, for the first time one and half month after marriage of her sister, Sevak started demanding of Rs.50,000/- for purchasing auto-rickshaw. He further stated that, Komal told him that she was beaten by appellant - Sevak on account of non fulfillment of demand of Rs.50,000/- for purchasing auto by appellant - Sevak. It is true that, this witness has fairly stated ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 38 that, their financial position was not sound. Therefore, his evidence to the extent of illegal demand of Rs.50,000/- by accused Sevak, deserves acceptance. Therefore, so far as illegal demand of Rs.50,000/- for purchasing auto and on non fulfillment of that demand, accused Sevak assaulted Komal has been stated by Tukaram Jadhav [PW2], Sitaram Jadhav [PW4] and Vinayak Jadhav [PW5]. There is no reason to disbelieve their evidence. However, on close scrutiny of the evidence of aforesaid witnesses, it is abundantly clear that they have not specifically stated about demand or ill- treatment or beating by other accused on account of non-fulfillment of the illegal demand of Rs.50,000/-. Therefore, we find considerable force in the argument of the learned counsel appearing for the appellants in Criminal Appeal No.209/2013 filed by the other accused except accused Sevak that, the ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 39 benefit of doubt deserves to be extended in their favour.
21] In order to appreciate contention of the learned counsel appearing for the appellant - Sevak that the death was accidental and was not homicidal. It is necessary to discuss the evidence of Dr.Nakhate [PW8] in his evidence, he stated that, he has completed B.A.M.S. course in the year 1984-85. He joined the service in the year 1987 as Medical Officer. Prior to the postmortem of Komal, he might have performed 30 to 35 postmortems on dead body. The dead body of a woman Komal Sevak Rathod was brought in Primary Health Centre, Dongarkada by S.S. Mundhe, Police Nayak. He received the dead body at about 9.30 a.m. on 15th July, 2011. He stated that, Dr.Bothikar accompanied with him, while performing postmortem on dead body. They commenced the postmortem on such dead body at 9.45 a.m. and completed at 11.45 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 40 a.m. The dead body was female reneging between 20 years. The dead body worn sari showing signs of clothes soaked with water. There were mud stains and blood stains on the cloth and sari. There were tattoo marks on the fore arms. On external examination of body, the temperature was cold. The rigor mortis on lower leg. On the flank part of both sides of the body, there were signs of decomposition found. Features were natural, both eyes were partially closed. Tongue inside mouth, teeth intact, oozing of blood from right ear was noticed. Cutes anserina present over hand [palm] and sole. There were no injury on external genital organs. Both upper limbs were flexed are over chest and were on chest. Both lower limbs were straight. The injuries noticed by him were, contusion over right side of occipital parietal region, 2 ½ cm. x 2 cm., teeth in tact, nose, upper and lower lips and right ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 41 and left lobs of ear, shoutes injury marks done by water animals. Near right elbow joint anterior side shows two injury marks done by water animals, size 1 ½ cm. x 1 cm. and 1 cm. x 1 cm. Nos.2 and 3 injuries are whitish in colour and having oozing of whitish fluid. Injury no.1 anti-mortem, injury nos.2 and 3 are post mortem.
22] Haemotoma under scalp, size 2 cm. x 1 ½ cm. There was no evidence of fracture of skull. There was evidence of intra cranial hemorrhage. Walls of ribs and cartilage were intact, pleura, normal, larynx, trachea and there is no froath in trachea. The right and left lungs were normal, no froath on squeeze lungs. Wall intact, peritoneum intact, buckles cavity fore tongue, inside mouth, ocsophageus, - NAD Stomach and its contents approximately 50 ml. Liquid foot. Small itenstine and its contents were NAD. Liver and gall bladder were pale. Pan-crease pale. ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 :::
221.2013Appeal+.odt 42 Spleen pale.
23] Kidney pale, bladder empty, organs of generation, uterus normal. Viscera preserved for chemical analysis. Bottle no.1 contains stomach and its contents, parts of intestine and its contains. Bottle no. 2 pieces of lung, liver, spleen, kidney, spinal cord nor open.
24] He express final opinion that, there was intra carinal hemorrhage due to head injury, and accordingly, he issued provisional P.M. report. Viscera was preserved. He did not notice sign of drowning as to the dead body of patient brought to him. He did not notice signs of drowning like froath from nose and mouth. Odematons lungs, froath on squeezing on the part of lungs, no froath in trachea. Those were vital signs of drowning. There was no water in stomach. The contusion was on the back side of head on ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 43 occipital parietal region. Internal injury on opening skull, brain hemorrhage. Therefore, he concluded that death was because of head injury. The patient might have consumed meals earlier 10 to 12 hours of death, evident from the signs of fluid in abdomen. Head injury was possible by hard and blunt object. Article no.5 i.e. wooden rafter was shown to him and he stated that, the said article may cause such injury.
25] It is true that, in his cross examination he stated that, he knows the diadem test. In that test, microscopic examination of tissues like brain, liver, bone marrow can be conducted and he did not carry such test. However, fact remains that he did express opinion that, due to head injury Komal died and injuries were ante- mortem in nature. Merely because he did not conduct diadem test can not nullify his clear, cogent and positive evidence that the ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 44 death of Komal was due to head injury, and injuries were ante-mortem.
The submission of the learned counsel appearing for the appellant relying upon the classification of drowning, and particularly theory of dry drowning stated in a book 'Medical Jurisprudence and Toxicology' [Authored by Prof. T.D.Dogra] is concerned, Dr.Nakhate [PW8] is a Medical Officer, who is expert in the field, and performed 30 to 35 postmortems prior to performing postmortem of Komal. Therefore, the defence counsel should have illicited reply / answer from him, by asking him in his cross examination, classification of drowning, and also what is mean by wet or primary drowning and dry drowning etc. Therefore, in absence of such exercise by the defence before the trial Court, it is not possible to appreciate the aforesaid contentions of the counsel for the appellants that, there was dry drowning ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 45 wherein water does not enter the lungs. Death results from immediate sustained laryngeal following entry of water into the nasopharynx or larynx. A mucous plug might at times be found in the trachea of such victims. 26] Upon considering the evidence of Dr.Nakhate [PW8], we are of the considered view that, the prosecution has proved that death of Komal was homicidal.
27] The Supreme Court in the case of Mufabhai Nagarbhai Raval Vs. State of Gujarat10, held as follows:
...It is needless to say that the doctor who has examined the deceased and conducted the post-mortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the court cannot substitute its opinion for that of the doctor.
10 [1992] 4 SCC 69 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 46 28] The prosecution examined Dr.Rajesh Ramanand Garje [PW7] to prove that earlier 7 months of the incident, Komal consumed poison i.e. Rogor and she was treated in private Medical Hospital of Dr.Garje [PW7]. In his evidence, he stated that history reveals that the patient consumed Rogor at 11.00 a.m. at vilage Bhategaon. It appears that, accused Sevak admitted Komal and told history to Dr.Garje [PW7]. It is further stated by Dr. Garje [PW7] that the patient was brought at Hospital in unconscious state. Therefore, immediately treatment was given to her. He further stated that, patient was given gastric wash, patient started on Atropin PAM and supportive treatment also started. She was stabilized two to three days, the patient improved clinically within two to three days after admission. Endotracheel tube was removed after three days, patient was conscious, oriented and vitals were stable.::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 :::
221.2013Appeal+.odt 47 He further stated that, on 6th April, 2010, the patient was discharged from his Hospital at 8.00 p.m. The fact that Komal was treated by Dr.Garje [PW7] is not in dispute. The incident of consumption of poison i.e. Rogor is not denied by the appellants. Appellant -
Sevak in his statement recorded under Section 313 of Criminal Procedure Code admitted that, Komal consumed poison and was shifted to Sanjivani Hospital, Nanded. He further stated that, he bore expenses for medical treatment of Komal in Sanjivani Hospital, Nanded. He also admitted that, after discharge from the Hospital, Komal stayed for 15 days with her parents. Therefore, it is admitted position that, 7 months earlier to the incident, Komal consumed poison and she was treated in the Hospital as indoor patient. Therefore, the statement of Tukaram Jadhav [PW2] that on account of non-fulfillment of demand of Rs. ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 :::
221.2013Appeal+.odt 48 50,000/-, Komal was ill-treated and she consumed poison due to harassment and cruel treatment given by the accused - Sevak and she was unconscious and treated in Sanjivani Hospital, gets fortified from the discussion herein above.
29] The prosecution examined Namdeo Tulshiram Pandhare [PW1]. It appears that, at the relevant time, he was working as Police Constable in Akhada Balapur Police Station. He was carrier of the viscera bottels from muddemal room to the C.A. for analysis. It appears that, he adhered to the procedure and after taking precaution, said viscera was carried in bottles to the office of the Chemical Analyzer for analysis. 30] Ramrao Baddu Jadhav [PW3] is the witness in whose presence wooden rafter was recovered pursuant to the memorandum of statement of the accused - Sevak, when he was ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 49 in police custody. He has supported prosecution case that in his presence article 5 was seized on disclosure statement made by the accused Sevak. He specifically denied suggestion in the cross examination that, Sevak did not make any disclosure staement. 31] Ashok Yayatrao Ghorband [PW9] working as API from 09.06.2010 to 10th June, 2012 in Police Station Akhada Balapur was the Investigation Officer, who conducted the investigation of Crime No.61/2011 registered by Tukaram Jadhav [PW2]. He has narrated details in his examination in chief about the manner in which the investigation was carried out, pursuant to disclosure statement by the accused Sevak wooden rafter was recovered. The said wooden rafter is recovered from the hut of appellant Sevak wherein he himself and deceased Komal was residing prior to the death of Komal. He has also conducted spot panchanama. In his cross examination, he ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 50 stated that, initially A.D. was registered. However, Tukaram Jadhav [PW2] lodged the First Information Report and thereafter law was set in motion and investigation was carried out. He stated in his cross examination that, the distance of hut and well was near about 100 meters. Other details also he has stated in his cross examination. 32] Upon considering the evidence of the prosecution witness in its entirety, the prosecution has unequivocally proved that there was ill-treatment and harassment at the hands of the appellant - Sevak to the Komal on account of non fulfillment of illegal demand of Rs.50,000/- to purchase auto- rickshaw. There is clear and cogent evidence of Tukaram Jadhav [PW2], which gets support from the evidence of Sitaram Jadhav [PW4] and Vinayak Jadhav [PW5]. The prosecution by examining Dr.Garje [PW7] has proved that, nearby 7 months earlier / prior to the ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 51 incident of death of Komal, Komal consumed poison and she was treated in Sanjivani Hospital and this fact is not denied by the appellant - Sevak.
33] The prosecution has also proved through the evidence of Tukaram Jadhav [PW2], Sitaram Jadhav [PW4] and Vinayak Jadhav [PW5] that, there was ill-treatment and harassment to Komal and therefore she consumed poison i.e. Rogor, as it is evident from the evidence of Tukaram Jadhav [PW2]. The prosecution has proved by examining Dr.Nakhate [PW8] that, death of Komal was homicidal. The injuries sustained by Komal were ante-mortem and death was homicidal. 34] The prosecution has brought on record motive of the appellant - Sevak for commission of offence. However, failure of the prosecution to prove motive is not fatal in law in each and every case based upon the ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 52 circumstantial evidence.
The Supreme Court in the case of Mulakh Raj and others Vs. Satish Kumar and other11 wherein in para 17 it is held, as under:
"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 11 (1992) 3 SCC 43 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 53 act wholly without motive. The 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.
[Underlines supplied] The Supreme Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra12 in para nos.13, 14, 15 and 22 held thus:
13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are 12 [2006] 10 SCC 681 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:52 ::: 221.2013Appeal+.odt 54 frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met.
These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.
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221.2013Appeal+.odt 55
14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution13 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh14. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate 13 1944 AC 315 14 [2003] 11 SCC 271 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 56 extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration
(b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket.
The burden of proving that he had a ticket is on him."
[Underlines added]
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 57 establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
In para 22, it is further held thus:
22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 58 home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P.15 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra16 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 15 AIR 1972 SC 2077 16 [1992] 3 SCC 106 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 59 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal17 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the 17 AIR 1992 SC 2045 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 60 murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of T.N. v. Rajendran18 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.
The Supreme Court in the case of Ganeshlal Vs. State of Maharashtra19 in para 9 18 [1999] 8 SCC 679 19 [1992] 3 SCC 106 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 61 has been held thus:
9. It is next contended that the parents, sister, maternal uncle and uncle's daughter, A-1, A-3 to A-6 having been acquitted the appellant cannot be convicted under Section 302 I.P.C. The question therefore, is whether it is the appellant alone who has committed the offence or parents, sister and two others also are participis criminis. It is true as contended for the appellant that the evidence on record is not sufficient to arrive at an immediate motive to commit the crime and the case depends on circumstantial evidence. But in circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved.
Men do not act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 62 proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never as indispensable factor for conviction. In Atley v. State of U.P.20, this court held that where there is clear evidence that the person has committed the offence, it is immaterial where no motive for commission of the crime has been shown. Therefore, even in the case of circumstantial evidence, absence of motive which may be one of the strongest links to connect the chain would not necessarily become fatal provided the other circumstances would complete the chain and connect the accused with the commission of the offence, leaving no room for reasonable doubt, even from the proved circumstances. Therefore, the evidence of PW-4 and PW-5 partly with regard to the motive may not be sufficient to bring home the strong immediate motive. But the evidence of PW-5, Vanmala, that on 20 AIR 1955 SC 807 ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 63 the fateful day, she went to her sister's house situated at a distance of 40 to 50 ft. from her house and that she extended invitation to Kanchana and Kanchana's mother-in-law to attend the "Teej" ceremony in her house was not disputed in the cross examination. It was around 10.00 to 10.15 a.m. It is not necessary to dilate the conversation for refusal to attend the ceremony but suffice to state that the appellant was present at that time. When Vanmala came down from the first floor, she heard exchange of words and somebody being beaten. After extending invitation to some people when she returned home, her maid servant, PW-9, after some time came and told her that her sister died. From her evidence in this behalf, there is no contradiction, but there is an omission of hearing exchange of words and somebody being beaten, in her statement recorded under Section 161 CrPC. Giving allowance to omit this part of the ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 64 evidence i.e. exchange of words and hearing the beating of somebody,the fact remains that at 10.30 a.m. Kanchana died. It is established from evidence of Vanmala, PW.5 that she saw her sister Kanchana alive at about 10 to 10.15 a.m. in the company of her husband, in-laws, sister-in-law in the house and within few minutes thereafter she was reported dead while in the house solely occupied by the accused appellant and his family members.
[Underlines added] 35] The next question is who is author of death of deceased Komal? The appellant - Sevak in his statement recorded under Section 313 of Criminal Procedure Code in reply to the question no.6 i.e., It is in evidence of prosecution that Komal cohabited with accused No.1 by staying in the house at Bhategaon, wherein you all accused were staying in same house. What have you to say? stated thus: ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 :::
221.2013Appeal+.odt 65 Ans: It is not correct. Myself and Komal were living in field.
Therefore, it is admitted position that much prior to the incident appellant - Sevak started residing with only Komal in hut situate in agricultural field in the name of his father, and none else. Appellant - Sevak has also admitted in his statement under Section 313 that earlier Komal consumed poison i.e. Rogor and she was treated in Sanjivani Hopsital, Nanded.
He filed separate written statement in his defence. The said statement reads thus:
e;r dksey gh ek>h iRuh gksrh] eh etqjhps dke djrks- ?kVusP;k fno'kh eh ek>s etqjhps iSls vk.k.;k dkeh eykaMh xkaoh ldkGhp xsyks gksrks o 11-30 oktrk ekb;k 'ksrkrhy >ksiMhoj ijr vkyks- R;kosGsl ekb;k >ksiMhrhy nSuafnu dkes dsysyh eyk vk<Gyh- ijarw ek>h iRuh eyk vk<Gwu vkyh ukgh- R;keqGs eh ek>s dkdk vkf.k dkdq 'ks"khdykckbZ th dh] e;r dkseyph eko'kh ns[khy vkgs- R;kaP;k ?kjh tkoqu dksey vkyh dk; Eg.kwu pkSd'kh dsyh-::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 :::
221.2013Appeal+.odt 66 R;kuarj eh ek>s lkljs rqdkjke xaxkjke tk/ko ;kaP;kdMs ns[khy ek>h iRuh dkatkGk rkaMk frP;k ekgsjh vkyh dk; ;k ckcr ns[khy pkSd'kh dsyh- eh ekb;k iRuhpk 'kks/k ?ksr vlrkaukp eyk 'ksrkrhy foghjh toG ik.kh Hkj.;kph dG'kh vk<Gyh- R;keqGs eh o 'ks"khdykckbZ nks?ks feGwu xkaokrhy fHkdqflax jruflax jkBksM ¼raVkeqDrh v/;{k½ ;kaP;kdMs tkoqu ?kVus ckcr ekfgrh fnyh-
R;kuarj vkEgh lokZauh foghjhoj ;smu foghjhrhy ik.;kr xG Vkdwu dkseypk 'kks/k ?ks.;kpk iz;Ru dsyk- rsOgk R;k xGkl vMdqu dksey gh ik.;koj vkyh- ;k ckcrph ekghrh eh ek>s lkl&;kl Qksu}kjs fnyh- R;kosGsl vkEgh lokZauh vls Bjfoys dh] ek>s lkljs ;sbZ i;Zar foghjh ckgsj izsr dk<ko;kps ukgh- ek>s lkljs vkY;kuarj ekb;k xkohp ekb;k iRuhoj vaR;laLdkj dj.;kr vkys- ekb;k iRuhpk e`R;q gk foghjhr vi?kkrkus iMwup >kysyk vkgs- [The translation of aforesaid statement by Official Translator in English, is as under:
Deceased Komal was my wife, I do labour work. On the day of incident I had been to village Malandi in the morning for bringing my wages. And came back to the hut in my field at 11.30. At that time I noticed that day to day work was ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 67 done in my hut. But my wife was not seen and found there. Therefore I had gone to the house of my uncle and aunt Shashikalabai who is also maternal aunt of Komal and enquired whereabouts of Komal. Thereafter I have also made enquiry with my father-in-law Tukaram Gangaram Jadhav about my wife at her parental village Kanjala Tanda. While taking search of my wife I found water pot (Kalashi) near the well in my field.
Therefore I and Shashikalabai both went to the village and met Bhikusingh Ratansingh Rathod (Tanta-
mukti Adhyaksha) and gave information about the incident.
Thereafter we all came to the well and by putting anchor in the water of well we tried to take search of Komal. At that time Komal's body was hooked and came out from water. I gave information about this to my father-in-law by phone. At that time we all have decided that till my father-in-law do not come there, we should not take out ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 68 the dead body out of well. After arrival of my father-in-law the funeral of my wife has been undertaken at my village. Death of my wife has been caused due to falling of her in the well accidentally.
Date : 01/01/2013. Deponant Sd/-
Sevak Ramrao Rathod.] 36] Upon careful perusal of the contents of the afore-mentioned written statement filed by the appellant - Sevak, it appears that, he admitted that, Komal is his wife. On the date of incident in the morning, he went to vilage Malandi for bringing his wages and came back to the hut in his field at 11.30 wherein he was residing with Komal, he did not notice his wife in the hut. Therefore, he went to the house of his uncle and aunt Shashikalabai who is also maternal aunt of Komal and enquired whereabouts of Komal. Thereafter, he has also made enquiry ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 69 with his father in law namely Tukaram Gangaram Jadhav about his wife at her parental village Kanjala Tanda. While taking search of his wife, he found water pot [Kalashi] near the well in his field. Therefore, he and Shashikalabai both went to the village and met Bhikusingh Ratansingh Rathod [President of Tanta Mukti] and gave information about the incident.
Thereafter, he along with Bhikusingh and other villagers came to the said well, and by putting anchor in the water of well, they tried to take search of Komal and accordingly after said search, they saw dead body of Komal floating on water. Sevak gave information about this to his father in law by telephonic message. At that time, they all decided that till his father in law arrives there, dead body of Komal should not be taken out of well. After arrival of his father in law, dead body of Komal was taken out of ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 70 well. The funeral of his wife has been performed at his village.
37] The appellant - Sevak in his defence examined Shashikshalabai Baburao Ade [DW1], Shamrao Munjaji Sontakke [DW2], Bhalusing Ratansingh Rathod [DW3] and Govind Pandurang Kavle [DW4]. Shashikalabai Baburao Ade [DW1], stated that, she along with Sevak went to the President of Tanta Mukti of village Bhategaon. Thereafter, Sevak told his father in law and mother in law about the incident. She stated her relationship with the appellant - Sevak and also with Komal.
The important defence witness for the appellant is Shamrao Munjaji Sontakke [DW2]. Upon perusal of the statement of Shamrao Munjaji Sontakke [DW2], recorded in English, if compared with his statement recorded in Marathi i.e. in vernacular language, we find some inconsistency / difference in his ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 71 version, and therefore, we decided to rely upon the statement recorded in Marathi. Shamrao [DW2] stated that, he know Sevak and Komal. Since Sevak was working with him, his wife Komal used to meet him. In July, 2010, Sevak worked for one day on his agricultural field. His labour charges were fixed Rs. 500/-. He did not give amount of Rs.500/- to him on same day. He told Sevak that he will pay the said amount to Sevak on Wednesday. Sevak came on Wednesday at about 8.00 a.m. and he gave him amount. The distance between Bhategaon and Malandi is 5 kilo meters. During his cross examination, he stated that, he cannot tell the date on which date Sevak came and collected the amount.
If the statement of Shamrao [DW2] is considered in its entirety, it clearly emerges that Sevak went to him to collect the amount towards labour charges for the work which was done in July, 2010. Therefore, it ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 72 appears from his statement that, for the said amount of Rs.500/- which was agreed to be paid to Sevak in July, 2010, Sevak went to collect the amount after almost one year. Secondly, it is admitted position that on the date of incident, there was Thursday. However, this witness stated that Sevak came on Wednesday. Therefore, it clearly reveals that appellant - Sevak took false plea and did not probabilize his defence, on the contrary he made attempt to hide from truth. Though it is contended by the learned counsel appearing for the appellant that the trial Court has not considered the evidence of defence witnesses, upon careful perusal of the impugned judgment, we find discussion in para 17 and 25 by the trial Court about the statements of the defence witnesses. However, the trial Court did not accept the defence taken by the accused. There was opportunity to the appellant - Sevak to discharge onus ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 73 under Section 106 of the Indian Evidence Act, when the prosecution has proved that the appellant - Sevak and Komal were only two persons, who were residing in the hut, which is situate 100 meters away from the well from which the dead body of Komal was recovered. Instead of placing on record probable and true explanation, regarding under which circumstances Komal died, and what transpired during the relevant night and next day morning on the date of incident, when all those facts were within the special knowledge of the appellant Sevak, instead of discharging said onus by the preponderance of probabilities, appellant Sevak, took improbable defence, which gets falsified in the light of the discussion hereinabove. As already observed, Dr.Nakhate [PW8] has categorically stated in his evidence that, injury sustained on the person of deceased Komal were ante-mortem and death was ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 74 homicidal. It is also stated by the Dr.Nakhate [PW8] that, on the basis of the contents of stomach it may be death early in the morning. Accused Sevak has stated that, he left the house in the morning on the date of incident. As already observed, appellant Sevak took false defence, and therefore his subsequent conduct after incident can also be added as an additional circumstance in the chain of circumstance.
38] It has come on record that, there is electric pump installed on well, and therefore there was no reason for Komal to go inside the well to fetch the water. Secondly, it has come on record in the evidence of Tukaram Jadhav [PW2] that, Komal knew swimming. It has also come on record that, well is of 20 meters in height and 10 feet water level was available. Since Komal knew swimming, the possibility of accidental death is completedly ruled out. ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 :::
221.2013Appeal+.odt 75 It has come on record that, accused no.1 Sevak is in possession of 10 acres irrigated land and he claims to be financially well off. Therefore, it is difficult to believe and digest that, Sevak went to do the labour work in the agricultural field of Shamrao Sontakke [DW2], that too, by travelling 5 kilo meters distance from Bhategaon.
39] In the light of discussion in the foregoing paragraphs the following facts are emerged on record, and duly proved by the prosecution:-
1] The marriage of accused no.1 Sevak with Komal was solemnized in the month of July, 2010.
2] The evidence of Tukaram Jadhav [PW2], Sitaram Jadhav [PW4] and Vinayak Jadhav [PW5] clearly suggests ill-treatment and harassment mentally as well as ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 76 physically at the hands of appellant
- accused no.1 Sevak to Komal on account of non-fulfillment of demand of RS.50,000/- to purchase auto-
rickshaw.
3] At about 7 months prior to the date of incident, Komal consumed poison i.e. Rogor and she became unconscious. She was taken to Sanjivani Hospital and treated there, thereafter she was discharged. Tukaram Jadhav [PW2] in his evidence stated that, on account of harassment and ill-treatment at the hands of the appellant - accused no.1 Sevak she consumed poison. 4] When the accused no.1 Sevak went to fetch Komal after aforesaid incident of consumption of poison, Tukaram Jadhav [PW2] gave understanding to the accused no.1 appellant not to harass Komal and on that oral agreement of understanding, Tukaram Jadhav [PW2] sent Komal with accused no.1 Sevak.
5] Admittedly, appellant [accused no.1] ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 77
- Sevak and Komal went to reside in the hut situate in their agricultural field. In the said hut, accused no.1 Sevak and Komal were only residing, and none else. 6] The well from which the dead body of Komal was recovered is 100 meters away from the said hut. It has come on record that the well was located in survey no.30 of village Bhategaon, it was in the field of accused.
7] Dr.Nakhate [PW8] deposed that, injuries on head of Komal were ante- mortem in nature and cause of death is because of head injury and death was homicidal and on the basis of the contents of the stomach, Dr.Nakhate [PW8] stated that, there may be death early in the morning. 8] The defence taken by the accused no.
1 - Sevak that, he went on the date of incident in the morning to collect the money / amount towards labour charges from Shamrao Sontakke [DW2] stands falsified.
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221.2013Appeal+.odt 78 9] The appellant accused no.1 - Sevak did not offer probable explanation how and under which circumstances Komal died since those facts were within the special knowledge of Sevak.
10] As stated by Sevak, when he left in the morning from the hut everything was all right. He did not raise plea that Komal was not in the hut during that night or even during morning hours when he left the hut; on the contrary he stated that, when he returned to hut at about 11.30 a.m., he saw some house work is completed / done, during the period he left the hut and returned back. 11] When he noticed pot near well, naturally in all human probabilities reaction could have been immediately take search of Komal, by whatever means to find out her whereabouts inside the said well. However, in such circumstances, instead of taking search there itself nearby well or inside the well, he coolly proceed to village.
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221.2013Appeal+.odt 79 12] The conduct of the appellant -
accused no.1 - Sevak to proceed coolly to village, coming with the villagers or contacting specifically to the Chairman of Tanta Mukti, brining them and then taking search of Komal reflects his state of mind. Even after the dead body was taken out on surface of water, he decided to keep said dead body in the well till arrival of Tukaram Jadhav [PW2].
13] There are also no circumstance on record suggesting that, anybody else had enmity with deceased Komal who could have committed her murder. 14] The recovery of rafter on the basis of an information given by the appellant - Sevak and at his behest rafter was recovered from the house. 15] It has come on record that there was electric pump installed on the well. Therefore, there was no reason for Komal to enter inside the well to fetch the water, and that too keeping water pot outside the well. ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 :::
221.2013Appeal+.odt 80 16] It has come on record that, Komal knew swimming.
17] Komal died within two years from the date of her marriage with accused no.1.
The discussion in the foregoing paragraphs only lead to the conclusion that, the appellant - Sevak assaulted / given blows on the head of Komal and as a result Komal died, and in order to cause disappearance of the evidence and for saving himself from clutches of Law, appellant - Sevak threw dead body of Komal in the well.
40] Therefore, inevitable conclusion is that appeal filed by the appellant - Sevak shall fail. We are in agreement with the findings recorded by the trial Court and conclusions reached, in respect of accused no.1 - Sevak. The findings recorded by the trial Court are fully in consonance with the evidence brought on record, and there is no ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 ::: 221.2013Appeal+.odt 81 perversity as such to the extent of appellant
- Sevak.
41] So far as appellants - original accused nos. 2 to 4 in Criminal Appeal No. 209/2013 are concerned, as already discussed while discussing the evidence of Tukaram Jadhav [PW2], Sitaram Jadhav [PW4] and Vinayak Jadhav [PW5], that their evidence and also other evidence brought on record by the prosecution is too short to uphold the conviction of those accused under Section 498A of the Indian Penal Code. It has come on record that on the date of incident or even few months prior to it, original accused nos. 2 to 4, were neither residing with accused no.1 Sevak and Komal, nor any specific allegations are made against them during said period. In that view of the matter, benefit of doubt deserves to be given to the said appellants [original accused nos. 2 to 4] in Criminal Appeal No.209/2013. ::: Uploaded on - 13/04/2017 ::: Downloaded on - 14/04/2017 01:04:53 :::
221.2013Appeal+.odt 82 42] In the result Criminal Appeal No. 209/2013 to the extent of appellants therein stands allowed. Their conviction for the offences punishable under Section 498-A of the Indian Penal Code stands quashed and set aside. They are already enlarged on bail during the pendency of Appeal. 43] Criminal Appeal No.221/2013, filed by the appellant - Sevak [accused no.1] stands dismissed, thereby confirming the judgment and order passed by the Additional Sessions Judge, Hingoli, dated 20th April, 2013 in Sessions Trial No.63 of 2011. Needless to observe that, he should be given set off under Section 428 of the Criminal Procedure Code.
[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
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