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2015 DIGILAW 902 (BOM)

Suresh Baliram Gavane v. State of Maharashtra

2015-03-31

B.P.COLABAWALLA, V.K.TAHILRAMANI

body2015
JUDGMENT : V.K. Tahilramani, J. 1. This appeal is preferred by the appellant-original accused against the judgment and order dated 4.12.2012 passed by the learned Additional Sessions Judge-2, Solapur in Sessions Case No. 178 of 2012. By the said judgment and order, the learned Sessions Judge convicted the appellant under Sections 302, 498-A and 177 of IPC. For the offence under Section 302 of IPC, the appellant has been sentenced to RI for life and to pay a fine of Rs. 1000/- in default RI for six months. For the offence under Section 498-A of IPC, the appellant has been sentenced to RI for three years and fine of Rs. 1000/- in default RI for six months. For the offence under Section 177 of IPC, the appellant has been sentenced to RI for six months and fine of Rs. 500/- in default R.I. for one month. All the substantive sentences were directed to run concurrently. The prosecution case, briefly stated, is as under: (i) Deceased Ashwini was the daughter of P.W. 5 Sujana. Sujana was residing at village Padali. Ashwini was married to the appellant one year prior to the incident. After the marriage, Ashwini went to reside with the appellant and his parents at village Pimpalgaon, District Ahmednagar. After the marriage, the appellant subjected Ashwini to harassment on account of demand for money. The appellant demanded that Ashwini's parents should sell their land and give him the money for pipeline and construction of his house. About 8 days prior to death of Ashwini when Sujana met her daughter Ashwini. Ashwini told her that the appellant used to assault her on account of unlawful demand of money for constructing pipeline and house. Sujana requested the appellant to treat her daughter Ashwini properly, whereupon, the appellant told her that as Ashwini was his wife, he would assault her or kill her or do anything with her. Sujana requested the appellant to send her daughter Ashwini with her. However, the appellant refused to send Ashwini with Sujana. At that time, Ashwini was residing with the appellant in makeshift hut located near Vitthal Sugar Mill, Mhaisgaon in Madha Taluka. (ii) Sujanas husband received a message on telephone about death of Ashwini. Hence, they came to Mhaisgaon. Sujana learnt that her daughter was shifted to Government hospital at Kurduwadi. She then went to Government hospital Kurduwadi. At that time, Ashwini was residing with the appellant in makeshift hut located near Vitthal Sugar Mill, Mhaisgaon in Madha Taluka. (ii) Sujanas husband received a message on telephone about death of Ashwini. Hence, they came to Mhaisgaon. Sujana learnt that her daughter was shifted to Government hospital at Kurduwadi. She then went to Government hospital Kurduwadi. Sujana found her daughter Ashwini had injury marks on her neck and abrasion on ribs. (iii) In the meanwhile, the appellant went to Kurduwadi police station on 17.3.2012 at 10 a.m. and informed P.W. 4 Police Head Constable Kumbhar that the appellant and his wife Ashwini had come to Vitthal Sugar Mill to crush sugarcane. Hence, they were staying in the court-yard of the sugar mill. The appellant further disclosed that on 16.3.2012 his father Baliram went to his native place i.e. village Pimpalgaon, hence, only the appellant and his wife Ashwini were at home. The appellant further told Police Head Constable Kumbhar that they had their dinner at night. Then they went to bed. At about 9.00 p.m. his wife Ashwini told him that she had pain in the abdomen. The appellant told Police Head Constable Kumbhar that his wife Ashwini died on account of abdominal pain. Police Head Constable Kumbhar then noted down the report given by the appellant in the station diary vide Entry No. 77 of 2012 and ADR was registered. The inquiry into the ADR was handed over to P.W. 6 P.S.I. Ghogare. P.S.I. Ghogare rushed to the spot. She saw that dead body of Ashwini was lying in the makeshift hut near Vitthal Sugar Mill in village Mhaisgaon. On observing the dead body, P.S.I. Smt. Ghogare found that froth of reddish colour was oozing from her nostrils and mouth. She found blackish mark on the neck of dead body as well as abrasion on her ribs. She also found marks on the back of Ashwini. She then sent the dead body for postmortem in the hospital at Kurduwadi. P.W. 1 Dr. Trimbake conducted the post-mortem on the dead body of Ashwini. In his opinion, the cause of death was "due to asphyxia due to throttling with associated injuries leading to cardio respiratory arrest". On receiving the post-mortem report, P.S.I. Ghogare came to know that the cause of death of Ashwini was "asphyxia due to throttling". She then recorded statements of parents of Ashwini and other witnesses. In his opinion, the cause of death was "due to asphyxia due to throttling with associated injuries leading to cardio respiratory arrest". On receiving the post-mortem report, P.S.I. Ghogare came to know that the cause of death of Ashwini was "asphyxia due to throttling". She then recorded statements of parents of Ashwini and other witnesses. She seized the clothes of the deceased under panchnama Exh. 27. On the basis of the medical opinion and the statements of the witnesses, she then lodged F.I.R. against the appellant for committing the murder of his wife Ashwini by throttling her and for giving false report to the police that Ashwini had died due to pain in abdomen. Thereafter investigation commenced. During the course of investigation, blood stained clothes of the appellant came to be seized under panchnama Exh. 43. After completion of investigation, the charge sheet came to be filed against the appellant. In due course, the case was committed to the Court of Sessions for trial. 2. Charge came to be framed against the appellant under sections 498-A, 302 and 177 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in para I above. Hence, this appeal. 3. We have heard the learned Advocate for the Appellant and the learned A.P.P. for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the prosecution has proved its case against the appellant. 4. There is no eye witness in the present case and the case is based only on the circumstantial evidence. 4. There is no eye witness in the present case and the case is based only on the circumstantial evidence. The circumstances against the appellant are as under: (1) The appellant gave a false report that his wife Ashwini died due to pain in abdomen whereas the medical evidence clearly shows that Ashwini died due to asphyxia due to throttling; (2) The appellant and the deceased were the only two persons residing in the hut at the relevant time and in the morning Ashwini was found dead in the hut with impression marks of fingers on her neck and injuries on other parts of the body; (3) Motive; (4) The T-shirt on the person of the appellant was found stained with blood; (5) As per the C.A. report, the shirt was stained with human blood for which the appellant has not furnished any explanation; 5. As far as the first circumstance is concerned, the evidence of P.W. 4 Police Head Constable Kumbhar who was attached to Kurduwadi police station shows that on 17.3.2012 the appellant came to Kurduwadi police station. The appellant told Police Head Constable Kumbhar that he along with his wife Ashwini had come to Vitthal Sugar Mill to crush sugarcane. Due to this, they stayed in the court-yard of the sugar mill. The appellant further told Police Head Constable Kumbhar that on 16.3.2012 his father Baliram went to his native place i.e. village Pimpalgaon, hence, only the appellant and his wife Ashwini were at home. The appellant further told Police Head Constable Kumbhar that they had their dinner at night. Then they went to bed. At about 9.00 p.m. his wife Ashwini told him that she had pain in the abdomen. The appellant told Police Head Constable Kumbhar that his wife Ashwini died on account of abdominal pain. The evidence of Police Head Constable Kumbhar shows that he took down the said report and made station diary entry and lodged A.D.R. The station diary entry Exh. 26 shows that the appellant came on 17.3.2012 at 10 a.m. and informed the above mentioned facts to Police Head Constable Kumbhar at the police station. 6. The inquiry into the A.D.R. was entrusted to P.W. 6 P.S.I. Ghogare. P.S.I. Ghogare has stated that she was entrusted with the inquiry in the A.D.R. No. 13 of 2012 in respect of death of Ashwini Gavane. 6. The inquiry into the A.D.R. was entrusted to P.W. 6 P.S.I. Ghogare. P.S.I. Ghogare has stated that she was entrusted with the inquiry in the A.D.R. No. 13 of 2012 in respect of death of Ashwini Gavane. She rushed to the spot of the incident. She saw the dead body of Ashwini was lying in the makeshift hut located in the Vitthal Sugar Mill in village Mhaisgaon. She saw froth of reddish colour was oozing from her nostrils and mouth. She further found blackish marks on the neck of Ashwini as well as abrasion on her ribs and marks of injury on her back. She then referred the dead body of Ashwini to the Rural hospital Kurduwadi for post-mortem. She received postmortem report that the cause of death of Ashwini was due to "asphyxia due to throttling". She then recorded statements of parents of Ashwini as well as other witnesses. Looking to the medical evidence and the statement of the witnesses, she lodged F.I.R. against the appellant for committing the murder of his wife Ashwini by throttling her and for lodging false report with the police that his wife died due to pain in the abdomen. 7. P.W. 1 Dr. Trim bake conducted the post-mortem on the dead body of Ashwini. On external examination, he found the following injuries: "(1) Abrasions two in numbers, left lateral to thyroid cartilage, each of size 0.3 c.m. x 0.4 c.m. and 0.3 c.m. x 0.2 c.m. separated by 0.5 c.m. clotted blood, caused by blunt cutting object; (2) Grazes three in numbers, left anti lateral of chest over 6th, 7th and 8th ribs of 1.2 c.m. x 2 c.m., 1.5 c.m. x 3 c.m., 1.5 c.m. x 3 c.m. with clotted blood, caused by rough surface; (3) Grazes (i) right scapular bony prominence of 3 c.m. x 1 c.m. (ii) left scapular bony prominence of 2.5 c.m. x 1.00 c.m. with clotted blood, caused by rough surface; (4) Contusion marks on back below scapular region two in numbers oblique of 3 x 7 c.m. and 3 x 9 c.m. reddish brown, caused by hard and blunt object. (5) Impression marks four in numbers of fingers, left lateral on neck, oblique of 1.5 c.m. x 2 c.m. size, thumb impression mark on right lateral at and above thyroid cartilage oblique of 2 x 3 c.m." 8. According to Dr. (5) Impression marks four in numbers of fingers, left lateral on neck, oblique of 1.5 c.m. x 2 c.m. size, thumb impression mark on right lateral at and above thyroid cartilage oblique of 2 x 3 c.m." 8. According to Dr. Trimbake, the cause of death was "due to asphyxia due to throttling with associated injuries leading to cardio respiratory arrest". In the opinion of Dr. Trimbake, injury Nos. 2, 3 and 4 are signs of struggle and these injuries are possible if the person applies any manual pressure to compress the neck. Dr. Trimbake categorically stated that he did not find any possibility of death of Ashwini due to any abdominal disease. Thus, the evidence of Dr. Trimbake clearly shows that the death of Ashwini was not due to any abdominal disease but it was caused due to "asphyxia due to throttling". 9. The appellant had informed the police that his wife died due to pain in abdomen, however, the medical evidence clearly shows that Ashwini died due to "asphyxia due to throttling". The evidence on record shows that the appellant and the deceased Ashwini were the only two persons residing in the makeshift hut in village Mhaisgaon at the relevant time. At night, Ashwini and the appellant had dinner and on the next day morning, Ashwini was found dead with injuries on her neck and other parts of the body. In such case, the appellant has to explain how the deceased sustained injuries and died. In this connection, we may refer to Section 106 of the Evidence Act. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principle which underlies Section 106 of the Evidence Act can be applied in cases where certain facts are especially within the knowledge of a person. In the case of State of Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254 : AIR 2007 SC 144 : [2007 ALL MR (Cri) 525 (S.C.) : 2007 ALL MR (Cri) 286 (S.C.)] the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain. In the present case, it is seen that the appellant has offered an explanation which in view of the medical evidence is found totally false. The furnishing of false explanation in fact provides one more link in the chain of circumstances against the appellant. 10. The motive for the appellant to commit the offence of murder is brought out through the evidence of P.W. 5 Sujana who was the mother of deceased Ashwini. Sujana has stated that Ashwini was her only daughter. Ashwini was married to the appellant about one year prior to the incident. After the marriage, the appellant subjected her daughter to harassment on account of demand for money. The appellant demanded that parents of Ashwini should sell their family land and give him money for constructing pipeline and house. Sujana has stated that she met her daughter Ashwini eight days prior to her death. At that time, her daughter told her that the appellant used to assault her on account of unlawful demand for money to construct pipeline and house. Sujana requested the appellant to behave properly with her daughter, however, the appellant told Sujana that Ashwini was his wife hence, he would assault her or kill her or do anything with her. Sujana requested the appellant to send her daughter Ashwini with her, however, the appellant refused to do so. Thus, the evidence of Sujana shows that the appellant demanded money from Ashwini and on account of demand, he ill-treated and harassed Ashwini. Thus, the offence under Section 498-A of IPC has been proved by the prosecution through the evidence of Sujana. The evidence of Sujana also shows the motive for the appellant to commit the murder of Ashwini. 11. Thus, the evidence of Sujana shows that the appellant demanded money from Ashwini and on account of demand, he ill-treated and harassed Ashwini. Thus, the offence under Section 498-A of IPC has been proved by the prosecution through the evidence of Sujana. The evidence of Sujana also shows the motive for the appellant to commit the murder of Ashwini. 11. In addition to the above evidence, the prosecution is relying on the evidence of panch witness P.W. 8 Arun who has stated about the seizure of blood stained T-shirt which was on the person of the appellant at the time of his arrest. The panchnama under which the clothes of the appellant were seized is at Exh. 42. The T-shirt and other clothes of the appellant were sent to the C.A. As per the C.A. report Exh. 30, the T-shirt was stained with human blood. In this connection, we may usefully refer to the decision of the Supreme Court in the case Gura Singh Vs. State of Rajasthan, (2001) 2 SCC 205 : [2001 ALL MR (Cri) 764 (S.C.)], wherein it has been observed as under: "In view of the authoritative pronouncement of this Court in Teja Ram Case (1999) 3 SCC 507 ) we do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the 'origin of the blood, the trial Court could not have convicted the accused. The Serologist & Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant." 12. Thus, on going through the record, we are of the opinion that there is sufficient evidence to prove beyond reasonable doubt the offences the appellant has been charged with. Thus, we find no merit in the appeal. Appeal is dismissed. 13. Office to communicate this order to the jail authorities and to the appellant who is in jail. We quantify legal fees to be paid to Advocate Ms. Thus, we find no merit in the appeal. Appeal is dismissed. 13. Office to communicate this order to the jail authorities and to the appellant who is in jail. We quantify legal fees to be paid to Advocate Ms. Rohini M. Dandekar by the High Court Legal Services Committee at Rs. 5,000/-.