Jainoddin S/o Karimbabu Shaikh v. State of Maharashtra
2012-09-27
CHANDRAMAULI KR.PRASAD, H.L.DATTU
body2012
DigiLaw.ai
ORDER : 1. This appeal is directed against the judgment and order passed by the High Court of Judicature of Bombay at Aurangabad in Criminal Appeal No. 598 of 2005 with Criminal Revision Application No. 346 of 2005, dated 26.07.2007. By the impugned judgment and order, the High Court has confirmed the conviction and sentence of the appellant ordered by the Trial Court in Sessions Case No. 164 of 2002 dated 16.08.2005. 2. The Trial Court and the High Court have concluded that the appellant (A- 1 before the Trial Court) is the author and executor of the dastardly crime of killing his own wife, Smt. Mahajabin and his child, aged 1½ = years, by strangulation and smothering. It is these orders which are questioned by the appellant (A-1) before this Court in this appeal. 3. The appellant had reported the incident of death of his wife and the child to the investigating agency without raising suspicion towards anyone. Based on the report of the appellant the investigating agency had carried out the investigation and thereafter had filed a charge-sheet against the three accused for the offence under Sections 302, 498-A and 506 read with Section 34 of the Indian Penal Code, 1860 ("Indian Penal Code" for short) for causing the death of Smt. Mahajabin, wife of A-1 ("deceased" for short) and the daughter-in-law of A-2 and A-3 and also that of child of 1½ = years - Aftab. 4. The Trial Court after appreciating the evidence on record, convicted and sentenced the appellant for offence punishable under Section 302 of the Indian Penal Code, while acquitted him of the offence punishable under Sections 498A and 506 of Indian Penal Code Accused Nos. 2 and 3 were acquitted of the offence punishable under Sections 302, 498A and 506 of the Indian Penal Code. 5. We have heard learned Counsel for the parties. 6. The Prosecution has examined nine witnesses. We have carefully perused the evidence of P.Ws. 1, 2, 3, 4, 6 and 7 which were discussed and relied upon by the Courts below. P.W.-1 is a co-worker in the office of Panchayat Samiti, where the appellant was employed as a clerk. In his evidence, he has stated that the appellant was deputed to work in the Panchayat Samiti office as a typist. He further states that on the date of the incident, viz.
P.W.-1 is a co-worker in the office of Panchayat Samiti, where the appellant was employed as a clerk. In his evidence, he has stated that the appellant was deputed to work in the Panchayat Samiti office as a typist. He further states that on the date of the incident, viz. 20.09.2011, appellant went to his house at 2.00 p.m. for lunch and within a short span of about 3 to 5 minutes, the appellant returned to the office, and he was then informed by the appellant, about the death of his wife and child. 7. P.W.-3, Dr. Subhash Khillare had conducted the post-mortem of the child. The post-mortem of the deceased (wife) was conducted by P.W.-2, Dr. Donglikar and P.W.-3 together. In respect of the query made by the investigating officer about the time of death, P.W.-2 had informed that the time of death could possibly be six to twelve hours from the time of conducting the Mahajar, which, according to him was performed at 5.30 p.m. The post-mortem report of the deceased (Exhibit-34) suggests that the cause of death is by strangulation and smothering; that rigor mortis had fully developed in the entire body; and that semi-digested food was found in the stomach. P.W.-3, who had conducted the post-mortem of the child, had observed in his report that rigor mortis had already set in and semi-digested milk was present in the stomach of the child. 8. P.W.-5 is the father of the deceased. Though in his evidence he had alleged cruelty and harassment by the appellant against the deceased for dowry and had also alleged accusations of infidelity made by the appellant against her, the same have not been believed by both the Courts below. 9. We have the evidence of P.W.-4, Smt. Pallavi, who was the friend of the deceased. She stays in Bori, the deceased's maiden home. In her evidence she states about her friend (deceased), informing her about the cruelty inflicted by the appellant and his parents (A-2 and A-3). We need not have to dilate on her evidence much. In our opinion, nothing turns much on her evidence. 10. We have another witness P.W.-6, Smt. Pushpa, who resided in the house opposite to that of the deceased. She is the wife of an engineer working in the Panchayat Samiti Office.
We need not have to dilate on her evidence much. In our opinion, nothing turns much on her evidence. 10. We have another witness P.W.-6, Smt. Pushpa, who resided in the house opposite to that of the deceased. She is the wife of an engineer working in the Panchayat Samiti Office. In her statement before the police and in her evidence before the Court, she had categorically stated that on the fateful day of the incident she had not seen the deceased sweeping outside her house, which used to be her routine affair. A suggestion, during cross-examination, was made to her that she had not stated the aforesaid fact of deceased's routine affair before the police. The said suggestion was denied by her. A suggestion was also put to her during the cross-examination that since it was raining on the fateful day, the deceased must have not come out of the house, which suggestion, she had denied and further stated that on the said day it had rained only in the afternoon. 11. Learned counsel for the appellant would submit that since the exact time of death could not be ascertained, the possibility of commission of offence by a person other than the appellant could not be ruled out especially in the light of evidence of P.W.-1 which proves presence of the appellant in the Panchayat office between 10:00 a.m. and 2:00 p.m. He would also submit that the evidence of P.W.-6 should not have been believed by the Trial Court, since there was material contradiction in the statement made before the police and at the time of evidence. While elaborating this submission he would place reliance on the fact that the said activity of sweeping outside the house was a routine affair, was not stated by P.W.-6 in her statement before investigating agency. What she stated was that the deceased was not seen sweeping outside the house on the fateful day. It was only during her evidence she states the activity as routine and also fails to explain such omission during cross- examination. 12. This case rests squarely on circumstantial evidence.
What she stated was that the deceased was not seen sweeping outside the house on the fateful day. It was only during her evidence she states the activity as routine and also fails to explain such omission during cross- examination. 12. This case rests squarely on circumstantial evidence. While circumstantial evidence alone by itself is enough to form the basis of conviction, provided there is no snap in the chain of events; the chain of events must, thus, be complete in such a way so as to point to the guilt of the accused person and none other. Law on this point is well settled. We need not to have labour much on that. In the present case, the Trial Court and the High Court, after carefully considering the entire case of the prosecution and the evidence on record, has found that the chain of events are well established and the circumstances is complete and therefore, appellant is guilty of the offence alleged against them. 13. In our opinion, evidence of P.W.-6 does not suffer from any infirmities. The activity of sweeping the house was natural course of conduct of the deceased which P.W.-6 witnessed every morning from her house situated opposite to the house of the deceased. What requires consideration is the factum of P.W.-6 not witnessing the routine activity being performed by the deceased on the fateful day. Mere omission of stating natural course of conduct of the deceased by P.W.-6 before the investigating agency but stating in her evidence cannot be said to be an improvement worthy of disbelieving her statement. Reliance ought to be placed upon the absence of routine activity being stated before the investigating agency, in the evidence and during cross-examination and not the omission of stating the routine activity. 14. This Court, in the case of Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457 , has observed that omissions that lead to contradictions in material details of the testimony must be taken into account to discredit the testimony of the witness. It is held :- "42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable.
It is held :- "42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2." 15. Reliance being placed upon the testimony of P.W.-6 and presence of rigor mortis in the dead bodies, coupled with the evidence on record indicates the probable time of death of the deceased and child to have been before the appellant left for work, i.e., before 10:00 a.m. Since there was no other person in the house, and since accused has not explained the cause of death of his wife and the child, the only conclusion that can be drawn is that the appellant has committed the crime of the offence alleged against him. 16. In view of the above, we are of the view that the prosecution has successfully established that it is the appellant, who was the author and executor of the heinous crime, namely, killing of his own wife and the child of 1½ = years. We are of the considered opinion that neither the Trial Court nor the High Court has committed any error, which would call for our interference in this appeal. Accordingly, while confirming the orders passed by the Courts below, we dismiss the appeal filed by the appellant. Ordered accordingly.