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2006 DIGILAW 1218 (BOM)

Dnyaneshwar Maru Koli v. State of Maharashtra

2006-08-08

A.S.BAGGA, S.P.KUKDAY

body2006
Judgment The appellant and his mother - Jaibai Maru Koli were prosecuted for committing murder of Chindhabai (wife of the appellant). Jaibai expired during the course of the trial, hence prosecution against her abated. Learned 2nd Additional Sessions Judge, Jalgaon convicted the appellant for offences punishable under sections 302 and 498-A of the Indian Penal Code the short "IPC"). For the first offences, he was sentenced to suffer imprisonment for life and to pay a fine of Rs.20001-, in default to suffer RI for one month whereas for the second offence, appellant was sentenced to suffer RI for three years and to pay a fine of Rs.l,000/- in default to suffer RI for one month. 2. Prosecution case stated, in brief, is that appellant-Dnyaneshwar is native of Mhaskabad (Khurd). He married Chindhabai (deceased) in the year 1982. They had one son and three daughters, Shashikala (PW 3) aged about eight years, is the eldest. About three years prior to the incident, after the death of appellant's father, the appellant separated from his brothers Chudaman and Sanjay and started living separately with his mother Jaibai (original accused No.2), wife Chindhabai and children. Since 24th August, 1993 appellant started working as a Watchman with Crop Protection Society, Mhaskabad. However, as he was addicted to liquor and was squandering money, the family was always facing a financial crisis. Whenever, Chindhabai visited her father Namdeo Koli (PW 1), cousin brother Anil Koli (PW 2) and other relatives, she used to complain that her husband ill-treats and assaults her, under the influences of liquor. 3. On 16th November, 1993 the appellant did not report for duty. At about 6.30, in the evening, appellant come to the house in the state of intoxication and started abusing his wife Shashikala, therefore, got frightened and left the house in search of her younger brother. Neighbours, including Vijayabai (PW 4) also heard appellant shouting and abusing his wife. They saw the appellant going out from the house after the quarrel. By that time, Shashikala returned to the house. She found that her father had gone out and her mother was lying on the cot. On realizing that her mother has expired, Shashikala started weeping. Neighbours, including Vijayabai (PW 4) also heard appellant shouting and abusing his wife. They saw the appellant going out from the house after the quarrel. By that time, Shashikala returned to the house. She found that her father had gone out and her mother was lying on the cot. On realizing that her mother has expired, Shashikala started weeping. On getting news regarding death of Chindhabai, Police Patil of the village went to the house of appellant at about 7.00 p.m. He saw ligature marks around the neck of the deceased and reported the death to Savda Police Station. On the basis of this report (Exh.45), ASI Ramesh Wagh (PW 9) registered A. D. No.23/1993. API Ukhadu Gadhari (PW 10), then took over the investigation. On reaching the spot, he recorded complaint of Namdeo Koli (PW 1) and sent it to the Police Station for registration of the offence. The Investigating Officer, then, held inquest on the dead body, prepared Panchanama of the Inquest (Exh.24) and sent the dead body to Savda Municipal Dispensary for post-mortem. Dr. Vijay Gade (PW 8) performed the post-mortem on 17-11-1993. Apart from two parallel ligature marks around the neck, the Medical Officer found that the subcutaneous tissues under the ligature marks were ecchymosed, carotid arteries were injured. He further noticed completely depressed fracture of thyroid bone, fracture of laryngeal cartilages and tracheal rings. Having regard to the nature of the ligature marks and the force required for the strangulation of this nature, the Medical Officer rule out possibility of suicide. He recorded result of the examination in post-mortem report (Exh.40) and certified the cause of death to be "asphyxia due to strangulation". 4. The appellant came to be arrested on 17-11-1993. While he was in the Police custody, the appellant made a confessional statement (ExhA8) on 20-11-1993 and produced nylon rope used for strangulation from the shed of his house, in the presence of witness Kashinath Mahajan (PW 7). The rope was attached under Seizure Memo (Exh.30). This rope was sent to the Medical Officer for his opinion. On examination of the rope, Dr. Gade found that the ligature marks exactly tally with the rope. He, thus, issued certificate (ExhA3) that this rope was used for strangulating the deceased. 5. The rope was attached under Seizure Memo (Exh.30). This rope was sent to the Medical Officer for his opinion. On examination of the rope, Dr. Gade found that the ligature marks exactly tally with the rope. He, thus, issued certificate (ExhA3) that this rope was used for strangulating the deceased. 5. On completion of the investigation, charge-sheet came to be filed against the appellant and his mother for offences punishable under Sections 302 and 498-A read with 34 of the IPC. As mentioned earlier, Jaibai expired during the course of the trial. Thus, prosecution against her abated. As can be seen from his statement recorded under Section 313 of the Criminal Procedure Code (for short "Cr.P.c.") the appellant adopted defence of total denial. 6. At the conclusion of trial, learned Trial Judge found that the prosecution has established seven circumstances, namely (i) the deceased died a homicidal death; (ii) the appellant was addicted to liquor and was in the habit of ill-treating the deceased; (iii) the appellant did not attend his duty on the day of occunence; (iv) the appellant did not repOlt death of his wife to the Police till his arrest on 17-111993; (v) in the small hamlet no stranger was expected to be at the house at 6.30 p.m.; (vi) the rope used for strangulating the deceased was recovered on the basis of the confessional statement of the appellant; and (vii) though the deceased was in the custody of the appellant no explanation is given by the appellant during his examination recorded under Section 313 of CLP.C. He further found that these circumstances forged a complete chain unerringly establishing that the appellant and the appellant alone has committed murder of his wife and was subjecting her to cruelty. In this view of the matter, learned trial Judge convicted the appellant of the offences punishable under sections 302 and 498-A of the IPC and sentenced him, as stated earlier. 7. In support of the appeal, learned counsel for the appellant Shri. P. P. Chavan, h/for Shri. M. S. Phatak mainly relies on two points. In this view of the matter, learned trial Judge convicted the appellant of the offences punishable under sections 302 and 498-A of the IPC and sentenced him, as stated earlier. 7. In support of the appeal, learned counsel for the appellant Shri. P. P. Chavan, h/for Shri. M. S. Phatak mainly relies on two points. It is urged by learned counsel that portion "A" from the statement of Shashikala which is not duly proved and the contents of certificate (Exh.43) were not put to the accused during his examination conducted under section 313 of the CLP.C. As the opportunity to explain these circumstances is not given to the appellant, it was not permissible for the learned Trial Judge to draw conclusions on the basis of, these circumstances. The second point urged by the learned counsel is that the seizure of the rope alleged to have been used for strangulation of the deceased, is not duly proved. According to learned counsel, in view of these infirmities, the conviction of the appellant cannot be upheld. 8. In support of his contention that the contradiction in the evidence of witnesses is not properly proved, learned counsel has placed reliance on the decision of the Apex Court in the matter of Tahsildar Singh and another Vs. State of U.P. reported in AIR 1959 SC 1012 . There can be no dispute regarding the dictum. In proving the contradiction it is necessary to draw attention of the witness to that portion of his statement which contradicts his evidence before the writing can be proved. Resort to Section 145 of the Evidence Act is necessary only if the witness denies that he made the former statement. In that event, it is necessary to prove that he did make the former statement and draw his attention to the relevant portion of the former statement for giving him an opportunity to make an explanation regarding the said statement. In the present case, the trial Judge has referred only to the contradiction appearing in the evidence of Shashikala. The contradiction in her statement has been duly proved by following the correct procedure. Questions regarding her former statements were put to her. When she denied to have made these statements, her attention has been drawn to her former statement and an opportunity is given to her to offer an explanation. The contradiction in her statement has been duly proved by following the correct procedure. Questions regarding her former statements were put to her. When she denied to have made these statements, her attention has been drawn to her former statement and an opportunity is given to her to offer an explanation. Therefore, the contention that contradiction in the evidence of Shashikala is not duly proved cannot be sustained. 9. Learned counsel has next contended that certificate (Exh.43) of the Medical Officer that the rope produced by the appellant was used for strangulation of the deceased could not have been used by the Trial Court as no opportunity was given to the appellant to offer an explanation during his examination recorded under section 313 of the Cr.P.C. In support of this contention, reliance is placed on the decision of the Apex Court in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 . In that case, reliance was placed on the circumstances in respect of the conduct of the appellant and the facts within his knowledge. In this background, Their Lordships observed in Para 142 of the Report that as these circumstances were not put to the appellant in his statement under section 313 of the Cr.P.c. they must be completely excluded from consideration because the appellant did not have any chance to explain them. Recording statement of the accused under section 313, Cr.P.c. is not an idle formality. The purpose of this examination is to give an opportunity to the accused to explain incriminating circumstances appearing in evidence against him. However, unless prejudice is shown to have been caused to the appellant, the failure to comply with this provision does not ipso facto vitiate the trial. The principles governing this aspect is enunciated by the Apex Court in the matter of State (Delhi Administration Vs. Dharampal reported in (2001)10 SCC 372 : [2002 ALL MR (Cri) 185 (S.C.)], referring to the earlier decision of the Supreme Court in the matter of Shivaji Sahabrao Bobade Vs. State of Maharashtra (1973)2 SCC page 793, Their Lordships observed in Para 13 of the report. "13. Thus it is to be seen that where an omission to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings. State of Maharashtra (1973)2 SCC page 793, Their Lordships observed in Para 13 of the report. "13. Thus it is to be seen that where an omission to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate Court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him." 10. In the present case, nothing has been brought on record to show that any prejudice has been caused to the appellant in view of the omission to put the contents of certificate (Exh.43) to him in his examination under section 313, Cr.P.C. In fact, this certificate has been proved by the defence during the cross-examination of the Medical Officer. The only suggestion given to the Medical Officer in this behalf is that the rope was not sent in the sealed packet. In this background, contention of learned counsel that omission to put the contents of the Certificate (Exh.43) has resulted in causing prejudice to him cannot be sustained. Omission to put portion "A" from the statement of Shashikala (PW 3) to the appellant during his examination stands entirely on a different footing. The witness had turned hostile therefore the contradiction appearing in her evidence was not treated as substantive evidence. The contradiction appearing in the evidence of this witness has been used by the learned trial Judge, in view of the principles enunciated by the Apex Court in the matter of State of U.P. Vs. Rameshprasad Mishra reported in AIR 1996 se 2766. However, as other circumstances established by the prosecution are sufficient to prove the guilt of the appellant, without the aid of this contradiction, it is not necessary to dilate on this aspect. 11. Learned counsel for appellant next contended that the recovery of nylon rope has not been properly proved by the prosecution as the Panch Kashinath Mahajan (PW 7) has not proved the memorandum of confessional statement made by the appellant. 11. Learned counsel for appellant next contended that the recovery of nylon rope has not been properly proved by the prosecution as the Panch Kashinath Mahajan (PW 7) has not proved the memorandum of confessional statement made by the appellant. Section 27 of the Evidence Act does not require that the confessional statement should be made in the presence of an independent witness. As a rule of caution, the Court seek confirmation of the statement by an independent witness. Considering this aspect in the matter of Praveen Kumar Vs. State of Karnataka reported in (2003)12 SCC page 199, Their Lordships observed in para No.21 of the report: "21. Section 27 does not lay down the statement made to a police officer should always be in the presence of independent witnesses. Normally, in cases where the evidence led by the prosecution as to a fact depends solely on the police witnesses, the courts seek corroboration as a matter of caution and not as a matter of rule. Thus, it is only a rule of prudence which makes the Court to seek corroboration from an independent source, in such cases. While assessing the evidence of the police. But in cases where the court is satisfied that the evidence of the police can be independently relied upon then in such cases there is no prohibition in law that the same cannot be accepted without independent corroboration. 12. In the present case, the Investigating Officer API Gadhari has testified to the confessional statement made by the appellant in presence of witnesses. The memorandum of the statement has been admitted by the trial Court as Exh.48. Investigating Officer has also testified to the subsequent recovery of the nylon rope from the house of the appellant. The evidence of Investigating Officer receives substantial corroboration from the evidence of PW 7. Nothing has been brought on record to show that the evidence of the Investigating Officer on this point is not reliable. Therefore, though PW 7 has not made reference to the confessional statement of appellant, the trial Court is justified in relying on the evidence of the Investigating Officer to conclude that the discovery has been duly proved. In this view of the matter, the contention that the discovery has not been properly proved cannot be sustained. 13. Therefore, though PW 7 has not made reference to the confessional statement of appellant, the trial Court is justified in relying on the evidence of the Investigating Officer to conclude that the discovery has been duly proved. In this view of the matter, the contention that the discovery has not been properly proved cannot be sustained. 13. We have carefully examined the entire evidence with the assistance of learned counsel for the appellant and learned APP for the Respondent-State. The fact that the appellant is addicted to liquor and was subjecting the deceased to physical and mental torture is undisputed. The Medical Officer has emphatically denied the possibility of the death being suicidal. Another circumstances which rules out suicide is that the deceased was pregnant at the time of the incident. A woman having a child in her womb can never commit a suicide. Considering the medical evidence and the attending circumstances, the finding of the trial Court that the deceased died a homicidal death cannot be faulted. The evidence of PW 5 shows that the appellant has remained absent from 16th onwards. Considering the life-style in small villages like Mhaskabad (Khurd), in the absence of the evidence to the contrary, the trial Judge is justified in coming to the conclusion that no stranger is expected to be in the house at the hour at which the incident took place. Coupled with the undisputed fact that the rope around the neck of deceased had been removed, the evidence regarding discovery of the rope and the emphatic assertion of the Medical Officer that this very rope was used for the strangulation of the deceased, establish complicity of the appellant in the commission of the offence without the aid of the contradiction in the evidence of PW 3. The circumstances established by the prosecution unerringly point to the guilt of the appellant and are inconsistent with the possibility of appellant being innocent. In this view of the matter, we find no merit in the appeal. The appeal is, thus, dismissed. The appellant shall surrender to bail before the trial Court on or before 20th September, 2006 for undergoing un-served portion of the sentence. Appeal dismissed.