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2017 DIGILAW 732 (BOM)

Kantya Gunya Wagh v. State of Maharashtra

2017-04-11

M.S.KARNIK, V.K.TAHILRAMANI

body2017
JUDGMENT : V.K. TAHILRAMANI, J. 1. This appeal is preferred by the appellant-original accused against the judgment and order dated 30.11.2010 passed by the learned Additional Sessions Judge, Kalyan in Sessions Case No. 25 of 2007. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life and fine of Rs. 500/-, in default R.I. for 3 Months. 2. The prosecution case briefly stated, is as under: (a) The appellant was residing with Sunita @ Mondibai (deceased) as husband and wife. They were residing in Shivaji Nagar, Kasara, District Thane. Both the appellant and Mondibai were labourers. PW 3 Thami was the cousin sister of Mondibai. Her house was situated close to the house in which the appellant and the deceased were residing. The appellant was suspecting the character of Mondibai. The appellant was addicted to liquor and used to frequently pick up quarrels with Mondibai. PW 4 Geetabai was the aunt of Mondibai. Her cattle shed was situated close to the house of the appellant and Mondibai. PW 6 Kalubai was the elder sister of deceased Mondibai. Kalubai has stated that her sister Mondibai had informed her that the appellant used to suspect her fidelity and he used to beat her. (b) According to the prosecution, the incident occurred in the night between 15.9.2006 and 16.9.2006. In the morning at about 6.00 a.m., PW 4 Geetabai gave a call to Mondibai, however, there was no response. Thereafter, Geetabai saw the appellant near the riverside. She asked him whereabouts of Mondibai. Thereupon, the appellant told Geetabai that he had broken the head of Mondibai. Geetabai informed this fact to PW 3 Thami. Thami was the cousin sister of Mondibai. Thami then went to the house of Mondibai. After going to the house of Mondibai, she saw Mondibai lying dead with injuries on her head, hence, she lodged FIR Exh. 18. Thereafter, investigation commenced. It is the prosecution case that the appellant assaulted Mondibai with an iron rod on the head and other parts of the body and caused her death. (c) The dead body of Mondibai was sent for postmortem. PW 7 Dr. Dhanke performed the postmortem on the dead body of Mondibai. According to Dr. 18. Thereafter, investigation commenced. It is the prosecution case that the appellant assaulted Mondibai with an iron rod on the head and other parts of the body and caused her death. (c) The dead body of Mondibai was sent for postmortem. PW 7 Dr. Dhanke performed the postmortem on the dead body of Mondibai. According to Dr. Dhanke, the probable cause of death was head injury and the death was unnatural and the injuries found on the body of Mondibai were possible by a blow with iron rod. (d) The appellant was arrested on 16.9.2006. At the time of arrest, his shirt and pant was found stained with blood. These were seized under panchnama Exh. 34. After completion of investigation, the charge sheet came to be filed. 3. Charge came to be framed against the appellant - original accused under Section 302 of IPC. The appellant jfoanz accused pleaded not guilty to the said charge and claimed to be tried. His defence was 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 paragraph 1 above, hence, this appeal. 4. We have heard the learned Advocate for the appellant and the learned APP. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel 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 there is no merit in the appeal. 5. There is no eye witness in the present case and the case is based entirely on circumstantial evidence. The circumstances against the appellant are as under: i. Motive; ii. Extra Judicial Confession to PW 4 Geetabai; iii. At the time of arrest, the clothes on the person of the appellant were stained with blood; iv. The appellant and the deceased were the only persons residing in the house and the appellant has not explained the circumstances in which Mondibai died i.e the appellant has not discharged the burden under Section 106 of the Evidence Act. 6. PW 3 Thami was the cousin sister of deceased Mondibai. She has stated that Mondibai was residing near her house along with her husband i.e the appellant. 6. PW 3 Thami was the cousin sister of deceased Mondibai. She has stated that Mondibai was residing near her house along with her husband i.e the appellant. Whenever Thami and Mondibai used to go to jungle to bring firewood, Mondibai used to tell Thami that the appellant was suspecting her fidelity. Mondibai also used to tell her that the appellant used to come home in an intoxicated state and used to quarrel with her. PW 6 Kalubai has also deposed about the motive. Kalubai was the sister of Mondibai. She was residing in Umbarmali in District Thane. She has stated that the marriage of her sister Mondibai and the appellant had taken place about two years prior to the incident. After the marriage, the appellant was in jail, hence, her sister Mondibai had come to her house. At that time, her sister Mondibai informed her that the appellant used to suspect her fidelity and used to beat her. Thus, the evidence of both the witnesses i.e PW 3 Thami and PW 6 Kalubai shows that the appellant was suspecting the fidelity of Mondibai. Thus, the evidence of PW 3 Thami and PW 6 Kalubai shows the motive for the crime. 7. PW 4 Geetabai has deposed about extra judicial confession by the appellant to her. Geetabai has stated that in the morning at about 6.00 a.m., she was going to her cattle shed. The house of Mondibai and the appellant was situated near the cowshed. At that time, her daughter-in-law told her to send Thami and Mondibai at the earliest to go to Amboli for selling vegetables. Therefore, Geetabai gave a call to Mondibai but Mondibai did not give any response. Thereafter, she saw the appellant near the riverside. She asked the appellant about whereabouts of Mondibai. Thereupon, the appellant told her that he had broken the head of Mondibai. 8. Accepting the admissibility of extra judicial confession, the Supreme Court in the case of Sansar Chand v. State of Rajasthan (2010) 10 SCC 604 has observed thus: "29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. 8. Accepting the admissibility of extra judicial confession, the Supreme Court in the case of Sansar Chand v. State of Rajasthan (2010) 10 SCC 604 has observed thus: "29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore - (1970) 2 SCC 105 : 1970 SCC (Cri) 320 : AIR 1971 SC 1871 , Mulk Raj v. State of U.P. - AIR 1959 SC 902 : 1959 Cri. L.J. 1219, Sivakumar v. State - (2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470 : AIR 2006 SC 653 (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of Maharashtra (2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320 and Mohd. Azad v. State of W.B. - (2008) 15 SCC 449 : (2009) 3 SCC (Cri) 1082 : AIR 2009 SC 1307 . The circumstance of extra judicial confession is corroborated by finding of blood stained clothes on the person of the appellant at the time of his arrest and the other circumstances in this case. Thus, this is the second circumstance against the appellant. 9. In relation to the third circumstance, PW 8 Sandip Karnik has stated that on 16.9.2006, the appellant was arrested from jungle. Arrest panchnama Exh. 34 was drawn. The evidence on record shows that when the appellant was arrested, the pant and shirt on his person were stained with blood. These clothes came to be seized and thereafter sent to C.A. The C.A. report Exh. 38 shows that the shirt and pant were both stained with human blood. In this connection, we may usefully refer to the decision of the Supreme Court in the case Gura Singh v. State of Rajasthan (2001) 2 SCC 205 , 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." Similar view has been taken by the Supreme Court in the cases of R. Shaji v. State of Kerala (2013) 14 SCC 266 , Molai & Anr. v. State of Madhya Pradesh, 1999(9) SCC 581 and Khujji @ Surendra Tiwari v. State of Madhya Pradesh AIR 1991 SC 1853 Thus, this is another circumstance against the appellant. 10. The last circumstance against the appellant is that the evidence on record shows that only the appellant and the deceased were residing in the house. The evidence of PW 4 Geetabai shows that her cattle shed was situated near the house of the appellant. PW 4 Geetabai has stated that on the earlier evening, she saw Mondibai was cooking in the house and the appellant was picking up vegetables. Thereafter, Geetabai went home. The next morning at about 6.00 a.m., when Geetabai was going to the cattle shed, her daughter-in-law told her to sent Thami and Mondibai at the earliest to go to Amboli for selling vegetables. Therefore, Geetabai gave a call to Mondibai but Mondibai did not give any response. Thereafter, Geetabai saw the appellant near the riverside and on making inquiry with the appellant about whereabouts of Mondibai, the appellant told Geetabai that he had broken the head of Mondibai. Geetabai then informed PW 3 Thami, the sister of Mondibai. When Thami went to the house of the appellant and Mondibai, she saw Mondibai lying in an injured condition and she was dead. Thus, the evidence of PW 4 Geetabai shows that on the earlier evening, the appellant and the deceased were very much present in the house and on the next morning, the dead body of Mondibai was found in the house. In such case, Section 106 of the Evidence Act would come into play. 11. Thus, the evidence of PW 4 Geetabai shows that on the earlier evening, the appellant and the deceased were very much present in the house and on the next morning, the dead body of Mondibai was found in the house. In such case, Section 106 of the Evidence Act would come into play. 11. 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 similar cases. In the case of State of Rajasthan v. Kashi Ram (2006)12 SCC 254 : AIR 2007 SC 144, 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. The appellant has not furnished any plausible explanation regarding in what circumstances Mondibai was found dead in his house. 12. That the deceased died a homicidal death is brought out in the evidence of PW 7 Dr. Dhanke. Dr. Dhanke has stated that she conducted postmortem on the dead body of Mondibai. On external examination, she found the following injuries on the person of the deceased: (1) C.L.W. over left wrist, size 3 x 2 cms; (2) Contusion and C.L.W. over left orbital region, 3 x 2 cms deep with palpable fracture of left temporal bone; (3) C.L.W. over left mastoid and occipital region, approx. On external examination, she found the following injuries on the person of the deceased: (1) C.L.W. over left wrist, size 3 x 2 cms; (2) Contusion and C.L.W. over left orbital region, 3 x 2 cms deep with palpable fracture of left temporal bone; (3) C.L.W. over left mastoid and occipital region, approx. 7 x 4 cms with exposed brain tissues with compound fracture of occipital bone; (4) Contusion over left temporal region approx 4 x 4 cms; (5) Contusion over right tempo-parietal region, approx. 6 x 4 cms. On internal examination, Dr. Dhanke found the following injuries:- (1) Contusion over left tempo-parietal region of brain, 6 x 4 cms approx; (2) Compound fracture of left tempo-parietal region with mastoid and occipital bone; (3) Hematoma on brain over left temporal region approx. 6 x 4 cms. Dr. Dhanke has stated that looking to the external and internal injuries, the probable cause of death was head injury and it was unnatural. Dr. Dhanke has further stated that the injuries found on the deceased are possible by a blow with iron rod. Thus, the medical evidence further corroborates the prosecution case. 13. PW 8 Santosh Karnik has stated about seizure of iron rod during the spot panchnama. He has stated that from the spot, one iron rod, pieces of bangles and blood stained clothes were seized. There were blood stains on the iron rod. The iron rod came to be seized. The spot panchnama is at Exh. 14. This iron rod was sent to C.A. As per C.A. report, the iron rod was stained with human blood. 14. On going through the evidence, we are of the opinion that the prosecution has proved its case against the appellant beyond reasonable doubt. Thus, we find no merit in the appeal. The appeal is dismissed. 15. Office to communicate this order to the appellant who is in Nashik Road Central Prison, Nashik. 16. The fees to be paid to the appointed Advocate Ms. Rohini Dandekar are quantified at Rs. 10,000/-.