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2015 DIGILAW 2101 (BOM)

Janardhan Ramaji v. State of Maharashtra

2015-09-07

B.R.GAVAI, P.B.VARALE

body2015
JUDGMENT : P.B. Varale, J. 1. By the present appeal, the appellant challenges the judgment and order passed by the learned Additional Sessions Judge, Wardha in Sessions Case No. 116/2011, dated 08.02.2013. 2. The prosecution case against the appellant-original accused can be summarized as follows:- One Baliram Domaji Dobhale, a farmer had lodged a report at police station Karanja (Gh.) on 03.05.2011. It was submitted in the report that the family of Baliram consists of two daughters and four sons. The marriage of his younger daughter namely Lata was solemnized sometime in the year 2009 with the appellant-accused Janardhan Bannagare. The couple was blessed with two daughters namely Bhavna and Pravina. At about 10 years prior to the incident, one Naukram Sarnagate was engaged as a labour in the agricultural field of Janardhan. Janardhan had developed intimacy with the wife of Naukaram. This intimacy was allegedly turned into illicit relationship and this relationship was objected by Latabai. Though, Latabai removed Naukram, Janardhan continued the relationship with the wife of Naukram, namely Devlabai. On this count, the couple was having quarrels and on the same count, accused Janardan and his mother Bayabai used to pick up quarrel with Latabai and by giving kick blows and fist blows and by stick blows, committed murder of Latabai. 3. Shri Bhaurao Shende (P.W. 10), PSI, attached to Karanja police station at the relevant time, on receiving the case papers, took steps in the process of investigation such as visiting the spot and preparing spot panchanama, effecting arrest of the accused on 03.05.2011, in pursuance to the memorandum statement of the accused causing discovery of weapon and recording statement of the witnesses. Thereafter, the investigation was handed over to Shri Deepak Wanjari, P.I. He also conducted the part investigation. On completion of the investigation, charge-sheet was filed before the Judicial Magistrate, First Class, Karanja. The offence under Section 302 of IPC being exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. The accused pleaded not guilty and claimed trial. 4. The defence of the accused was two fold. Firstly, it was in the form of absence of the accused persons on the spot at the relevant time and, secondly, on the count that the victim was patient of epilepsy and on that day, she received epileptic attack in which the victim was feeling giddiness. 4. The defence of the accused was two fold. Firstly, it was in the form of absence of the accused persons on the spot at the relevant time and, secondly, on the count that the victim was patient of epilepsy and on that day, she received epileptic attack in which the victim was feeling giddiness. As there was no hospital near to the spot and as it was night time, some household medicine was provided to the victim. The victim regained consciousness after some time and gone for sleep along with the daughter in the bed room and the accused left his home for his agricultural field. He returned in the morning and found his wife in unconscious condition. 5. The learned Additional Sessions Judge, on an appreciation of the evidence found that death of victim Latabai was homicidal one and accused No. 1 Janardhan is the author of the said crime. The learned Judge found that there is no material involving accused No. 2 in commission of the crime and as such accused No. 2 was acquitted, whereas accused No. 1 was convicted for the offence punishable under section 302 of the Indian Penal Code and was sentenced to suffer life imprisonment with fine, in default to undergo rigorous imprisonment for three months. 6. Mr. Mandape, the learned counsel for the appellant vehemently submitted that the case of the prosecution is based on circumstantial evidence. He submitted that the prosecution has utterly failed to establish any circumstance against the appellant/accused. He further submitted that in the case based on circumstantial evidence, the prosecution has to establish each of the circumstance firmly against the accused and unbroken chain of circumstances should lead to the conclusion that the accused is the only person who is the author of crime, leaving every hypothesis of innocence of the accused. He also submitted that it is for the prosecution to discharge the burden and such discharge of burden of proof cannot be sought primarily from the accused. The submission of the learned counsel for the appellant is the witnesses are either interested witnesses or the tutored witnesses. As such, the credibility of these witnesses is doubtful and no reliance can be placed on such witnesses. Thus, the learned counsel for the appellant has prayed for allowing the appeal by setting aside the judgment and order of conviction passed by the learned trial Court. As such, the credibility of these witnesses is doubtful and no reliance can be placed on such witnesses. Thus, the learned counsel for the appellant has prayed for allowing the appeal by setting aside the judgment and order of conviction passed by the learned trial Court. The learned counsel for the appellant has relied on the judgment of the Apex Court reported in 2009 (2) B.Cr.C. 762 (SC) in the case of Subramaniam vs. State of Tamil Nadu and another. 7. Per contra, the learned Additional Public Prosecutor Mr. Khan supports the judgment and order passed by the learned Sessions Judge. The learned APP submits that on the backdrop of peculiar facts and circumstances of the case, namely death of the victim is in her matrimonial house, that too in the intervening night of 02.05.2011 and 03.05.2011 and the victim was subjected to physical violence and as such, the appellant-Janardhan, who is the husband of victim Latabai, was required to explain the reason for unnatural death of his wife. The learned APP submitted that the evidence in the form of oral testimony of witnesses and more particularly the evidence of P.W. 2 Baliram, the father of the victim and the evidence in the form of circumstances namely recovery of weapon at the instance of the appellant Janardhan coupled with the fact that the victim died due to head injury establishing the case of prosecution against the appellant. The learned APP submitted that in the peculiar circumstances that the murder of the victim was committed in the residential house and as the offence took place inside the privacy of the house, the prosecution has discharged its primary burden and it was for the appellant/accused to meet with the challenge of the prosecution with sufficient and reliable material in his support. 8. On the backdrop of the submissions of both the learned counsel, we have gone through the material placed on record. The prosecution though examined 11 witnesses, the material witnesses would be P.W. 2 Shri Baliram, father of the victim, P.W. 7 Dr. Rajesh, Bardale, who conducted autopsy and issued post mortem report, P.W. 9 Ms. Pravina, minor daughter of the victim. 9. Certain facts which are not seriously disputed are the relationship between the appellant Janardhan and victim Latabai i.e. they are husband and wife. The couple was blessed with two daughters. Rajesh, Bardale, who conducted autopsy and issued post mortem report, P.W. 9 Ms. Pravina, minor daughter of the victim. 9. Certain facts which are not seriously disputed are the relationship between the appellant Janardhan and victim Latabai i.e. they are husband and wife. The couple was blessed with two daughters. P.W. 9 Pravina is the minor daughter of the couple. Insofar as death of victim is concerned, the material for consideration would be the inquest panchanama, which is admitted by the defence and the post mortem report proved by P.W. 7 Dr. Rajesh. A perusal of the inquest panchanama shows that there were marks of injury to left thumb and lower part of the leg. The marks were also seen on the neck and dried blood was found at various spots. Dark patches were found on the side of buttocks indicating some blows. It will be useful to refer to the evidence of P.W. 7 Dr. Rajesh. 10. P.W. 7 Dr. Rajesh deposed that the dead body was referred to him on 04.05.2011 for conducting post mortem. He states that during external examination, he noticed following injuries. 1. Abrasion at right elbow of size 0.6 c.m. x 0.5 c.m. 2. Abrasion at right wrist, dorsum of size 0.5 c.m. x 0.5 c.m. 3. Abrasion at left medial malleolus of foot of size 1 c.m. x 1 c.m. 4. Multiple abrasions (3 in number) at left great toe and adjacent area of foot, dorsum of size varying from 1 c.m. x 1 c.m. to 0.5 c.m. to 0.4 cm. 5. Abrasion at left lateral malleolus of foot of size 0.8 c.m. to 1 cm 6. Two abrasions at left heel lateral aspect of size 0.5 c.m. x 1 c.m. each. He further deposed that all these injuries were ante mortem, fresh and were caused by hard and blunt object. During internal examination, he noticed the following injuries: 1. Under scalp haematoma at left frontal region of size 5 c.m. x 4 c.m., fresh. 2. Under scalp haematoma at left parieto-temporo-occipital region of size 14 c.m. x 9 c.m., fresh. 3. Brain soft and pasty with subarachnoid haemorrhage present over red surface in form of film, fresh. 4. Hematoma present in right chest muscle of size 8 c.m. x 6 c.m., fresh. 5. Hematoma present in right subarachnoid muscle of size 3 c.m. x 1.5 c.m., fresh. 3. Brain soft and pasty with subarachnoid haemorrhage present over red surface in form of film, fresh. 4. Hematoma present in right chest muscle of size 8 c.m. x 6 c.m., fresh. 5. Hematoma present in right subarachnoid muscle of size 3 c.m. x 1.5 c.m., fresh. P.W. 7 deposed that the cause of death was head injury. In the cross-examination of this witness, he admitted that a person suffering from convulsion can fall down on the ground and receive injuries. In his further cross-examination, he denied the suggestion that injury Nos. 1 and 2 mentioned in column No. 19 are possible if a person fall on the ground. P.W. 7 deposed that the injuries mentioned in column No. 19 are sufficient to cause death of a person in ordinary course. Though, an attempt was made by the defence to submit that death of victim Latabai was an accidental death, on the backdrop of the evidence of P.W. 7 Dr. Rajesh, in our opinion, the prosecution has established that death of victim Latabai was homicidal death. 11. Now, the important aspect, which we have to deal is about the authorship of the crime i.e. whether the prosecution proved beyond reasonable doubt that it is the accused and none else who is the author of the said crime. As it is not in dispute that the prosecution case rests on circumstantial evidence, the material for consideration would be in the form of oral testimony of the witnesses and discovery of weapon allegedly used by the appellant. 12. We will now scrutinize the testimony of P.W. 2 Baliram, the father of victim Latabai. The testimony of this witness refers to an alleged motive against the accused. P.W. 2 Baliram initially states that accused Nos. 1 and 2 were not behaving properly with his daughter and were picking up quarrel since her marriage. He further states that his daughter used to tell him about the misbehavior of the accused persons whenever she used to visit her parental home. Then he states about the intimacy turned into illicit relationship, developed between Janardan and Devlabai, the wife of a labour engaged for doing labour work in the agricultural field of the appellant. He further states that his daughter used to tell him about the misbehavior of the accused persons whenever she used to visit her parental home. Then he states about the intimacy turned into illicit relationship, developed between Janardan and Devlabai, the wife of a labour engaged for doing labour work in the agricultural field of the appellant. He states that his daughter came to know about the illicit relationship of the appellant with Devlabai and though, she objected for the same, the relationship was continued by her husband i.e. appellant Janardan. He states that the accused constructed a hut for Devlabai and her husband used to stay in that hut for a considerable long period and on this count, the couple used to have quarrels. He then states that on 03.05.2011, he received a phone call from one lady in the morning that his daughter was found sleeping on the bed and she is not in a position to talk and walk. He then states that he immediately rushed to the spot on motorcycle. He then deposed that he saw his daughter on the bed. She was dead and nobody was in the house. He further deposed that he noticed Pravina sleeping beside her mother. He then states that he called his another sons and informed about the incident. He then went to police station and lodged the report. In the cross-examination of this witness, it revealed that the distance between village of the accused and the village of P.W. 2 is 3-4 kilometers. 13. On a perusal of the testimony of this witness, it revealed that though, he deposed that since beginning of the marriage, accused Nos. 1 and 2 were ill-treating his daughter Latabai, he made no report to police about such ill-treatment till the death of his daughter. The factum of illicit relationship of the accused with Devlabai is hearsay version of this witness. He deposed that the information of such relationship was disclosed to him by his daughter. Thus, it is clear that P.W. 2 Baliram himself is not an eyewitness to the alleged intimacy between the appellant/accused and Devlabai. Perusal of cross-examination of P.W. 2 Baliram further reveals that the allegations of ill-treatment against the appellant/accused and the other accused are brought on record by way of omissions. Thus, it is clear that P.W. 2 Baliram himself is not an eyewitness to the alleged intimacy between the appellant/accused and Devlabai. Perusal of cross-examination of P.W. 2 Baliram further reveals that the allegations of ill-treatment against the appellant/accused and the other accused are brought on record by way of omissions. It is also interesting to note in the deposition of P.W. 2 Baliram that he rushed to the spot and entered in the house of the accused. He found that his daughter was on the bed and she was dead. He further deposed that at that time he noticed that Pravina was sleeping beside her mother. He further deposed that he was under an impression that Pravina was also no more. Therefore, he touched the body of Pravina and she opened her eyes. Pravina then hugged him and started crying. 14. On the backdrop of the testimony of P.W. 2 Baliram, it will be useful to consider the testimony of P.W. 8 Pravina. As stated above, Pravina is the minor daughter of the appellant and Latabai and when she was subjected to examination before the Court, she was 10 years of age. This witness in her examination-in-chief submits that on the fateful night while she was sleeping with her mother, she woke up on hearing shouts of the mother and had seen her father assaulting her mother with stick. In the cross-examination, it was brought on record that grandfather read over the statement to her since 3-4 days and gave instructions to her how to depose in the Court. The learned trial Judge, rightly observed that this witness was tutored at the instance of her grandfather. The trial Court found that it was not safe to rely on the testimony of such witness. On scrutinizing the evidence of this witness, we see no reason to take different view. Thus, the version of P.W. 2 Baliram is hearsay evidence on the aspect of alleged ill-treatment and the version of child witness P.W. 8 Pravina is not credit worthy being tutored witness and as such, unsafe to rely upon. 15. The circumstance on which the prosecution has relied is discovery of stick at the instance of the appellant/accused. P.W. 1 Arun Raut is the panch witness on the aspect of discovery of the stick. 15. The circumstance on which the prosecution has relied is discovery of stick at the instance of the appellant/accused. P.W. 1 Arun Raut is the panch witness on the aspect of discovery of the stick. On a perusal of his testimony, it reveals that in pursuance of the memorandum statement of the accused, P.W. 1 Arun along with police personnel and the accused had been to the house of the accused. The accused produced a stick from the house. From the testimony of this panch witness, it will be material to note that the accused was arrested on 03.05.2011 and on the same day, spot panchanama was drawn. It will be interesting to note that the spot panchanama refers to bed room and availability of furniture and other articles in that bed room. The memorandum statement is recorded on 06.05.2011. Discovery of said stick is shown to be recovered from the bed room. The said panch witness in his examination-in-chief states that the stick was produced by the accused from his house. In the cross-examination, this witness admits that stick like article 13 is available at the house of farmers. In the cross-examination, he states that the accused had produced the stick from the drawing room of the house and it was not produced from the bed room. In the cross-examination, in clear words he admits that when the spot panchanama was carried out, the entire house was inspected to know about any incriminating article and no suspicious article was traced from the house of the accused. On the backdrop of these facts, discovery of the alleged weapon stick becomes shrouded in the cloud of suspicion. Thus, such a discovery which is not free from doubts, cannot be accepted as a circumstance against the accused. 16. Thus, on a critical analysis of the material referred to above, we are of the opinion that the so called circumstances put up against the accused in the form of oral testimony and discovery of alleged weapon, are too weak to place any reliance on these circumstances. It is now settled position of law that suspicion however strong it may, cannot take place of proof. The other aspect on which the learned Additional Public Prosecutor placed heavy reliance is failure of the accused to give any explanation about death of victim in her matrimonial house. It is now settled position of law that suspicion however strong it may, cannot take place of proof. The other aspect on which the learned Additional Public Prosecutor placed heavy reliance is failure of the accused to give any explanation about death of victim in her matrimonial house. It was submitted by the learned APP that though, the dead body of the victim was lying in the house, the accused made no attempts to lodge any report and it was the father of the victim, who lodged the report in the police station. On this aspect, we are of the opinion that the circumstances as put up by the learned APP may be an additional circumstance, but failure of the accused in offering an explanation by itself cannot be a basis for conviction. It is now the settled position of law that the prosecution has to discharge its burden. The learned APP was placing reliance on Section 106 of the Evidence Act in support of the case of the prosecution. It was the submission of learned APP that as death of the victim occurred in her matrimonial house in the night hours and the fact thus being within the knowledge of the accused, the accused was to discharge the burden and the prosecution is not expected to lead evidence which is either impossible or extremely difficult to be laid. The learned APP has placed reliance on the judgment the Apex Court reported in 2006 Law Suit (SC) 843 : 2006 AIR (SCW) 5300 in the case of Trimukh Maroti Kirkan vs. State of Maharashtra. 17. The Apex Court in the judgment reported in AIR 1975 SC 667 in the case of Razik Ram vs. J.S. Chouhan, observed that "the principle underlying Section106, which is an exception to the general rule governing burden of proof applies only to such matters of defence, which were supposed to be specially within the knowledge of the party concerned. It cannot apply when the fact is such as to be capable of being known also by persons other than the party." It will not be out of place to mention that the judgments of the Apex Court as well as High Courts clearly cautioned that Section 106 cannot be invoked to fill up the inability of the prosecution to produce evidence to prove the guilt of the accused. It will be useful to refer to the judgment of Mysore High Court reported in AIR 1953 Mysore 31, in the case of Gullegar Setty vs. State. The Mysore High Court, referring to the case of Rambharose vs. Emperor, reported in 1936 Allahabad 833, observed that there is no doubt that Section106, Evidence Act, cannot be invoked to make up for the inability of the prosecution to produce evidence of circumstances necessary to prove the guilt of the accused. This view was reiterated again in the case of Basavaraja Swami, reported in AIR 1967 Mysore 210. It is observed that Section 106 of the Evidence Act is not intended to be used to place upon the accused the burden of proving his innocence. Section 106 is not a proviso to the rule that the burden of proving the guilt of the accused is upon the prosecution, but on the contrary the section is subject to that rule. 18. The Apex Court in the case of Subramaniam vs. State of Tamil Nadu, on which reliance has been placed by Mr. Mandape, the learned counsel for the appellant, has observed in the following words: "14. So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and husband alone was responsible therefor." 19. On this touch stone, if the facts of the present matter are considered, the testimony of the father of the victim reveals that when he reached the spot, he found that his daughter was lying on a cot and his grand-daughter was along side of the victim. On this touch stone, if the facts of the present matter are considered, the testimony of the father of the victim reveals that when he reached the spot, he found that his daughter was lying on a cot and his grand-daughter was along side of the victim. The prosecution has failed to bring any evidence to suggest that only the couple was in the said room in the night, and it was the accused, who was seen in the company of his wife in the night and in the morning the wife was found dead and there was no opportunity to any other person to enter the house. On the contrary, it is the plea of the accused that the victim was suffering from epilepsy and on that night, the victim had suffered epileptic attack and as no medical aid was available, the appellant provided some household medicine to the victim and on gaining consciousness by the victim, the appellant left the home for his agricultural field and returned in the morning. On the backdrop of these facts, the burden could not have been shifted on the accused. It will also be useful to refer to paragraph 20 of the judgment of the Apex Court in the case of Subramaniam vs. State of Tamil Nadu, wherein the Apex Court by referring to the judgment in the case of Vinay D. Nagar vs. State of Rajasthan (2008) 5 SCC 597 has observed thus-- "9. The principle of law is well established that where the evidence is of a circumstantial nature, circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and the facts, so established, should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and they should be such as to exclude hypothesis than the one proposed to be proved. In other words, there must be chain of evidence so 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 human probability the act must have been done by the accused." 20. In other words, there must be chain of evidence so 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 human probability the act must have been done by the accused." 20. Thus, it is the duty of the prosecution to establish the facts firstly to draw conclusion of guilt against the accused and then the burden would shift on the accused under Section106 of the Indian Evidence Act. If the prosecution fails to establish the circumstances, the burden automatically cannot be shifted on the accused. Non-explanation by the accused, as stated above, may be an additional circumstance, but for such an additional circumstance to be used against the accused, the prosecution must prove all other circumstances of his guilt, as observed by the Apex Court in K.T. Palanisamy vs. State of Tamil Nadu (2008) 3 SCC 100 . 21. Needless to state that the principle is well settled by the Apex Court in the judgment reported in (1984) 14 SCC 116 in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, for arriving at an opinion in regard to proof of a prosecution case on the basis of the circumstantial evidence, which reads thus:- "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made: (SCC para 19, p. 807 : SCC (Cri.) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." The Apex Court observed that these five golden principles, constitute the Panchsheel of the proof of a case based on circumstantial evidence. 22. Thus, taking all the aspects referred to above into consideration, in our opinion, the prosecution has failed to establish any circumstance against the appellant/accused. As the prosecution failed to establish its case against the accused beyond reasonable doubt, the appeal deserves to be allowed. 23. In the result, the criminal appeal is allowed. The order of conviction and sentence is set aside. The appellant be set at liberty forthwith, if not required in any other case. The criminal appeal is disposed of accordingly.