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2018 DIGILAW 1699 (BOM)

Bittu Domilal Gupta v. State of Maharashtra

2018-07-13

M.S.SONAK, V.K.TAHILRAMANI

body2018
JUDGMENT : V.K. Tahilramani, J. This appeal is directed by the appellant - original accused against the judgment and order dated 7.9.2010 passed by the learned Additional Sessions Judge, Vasai in Sessions Case No. 295 of 2007. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and to pay a fine of Rs. 1000/- in default R.I. for two months. 2. The prosecution case, briefly stated, is as under: (1) Deceased Anjudevi was the wife of the appellant. The appellant and his wife Anjudevi had one daughter by name Dolly who was about 12 years of age at the time of the incident. At the time of the incident, the appellant along with wife Anjudevi and his daughter Dolly were residing at Room No. 2, Premanagar, Gidaraipada, Satvali Tal. Vasai. (2) On 30.5.2007 in the evening a quarrel took place between the appellant and his wife Anjudevi. Anjudevi was asking the appellant to buy new clothes for her and the appellant was telling her that he had no money. Thereafter, the appellant, his wife Anjudevi and their daughter Dolly had dinner and they all went to sleep. They were all sleeping in one room. In the night at about 1.30 a.m. to 2.00 a.m., the appellant strangled his wife Anjudevi which led to her death. This was witnessed by their daughter PW 7 Dolly. PW 2 Gulab who was residing in the area, saw crowd in front of the house of the appellant. On going near the house, he saw that the wife of the appellant was lying dead in the house. He made enquiry with the appellant. The appellant told him that they had dinner and had gone to sleep and in the morning, his wife was found dead. Gulab then informed the police. Police came to the spot. PW 1 PSI Patil then lodged F.I.R. on behalf of the State. The said F.I.R. is at Exh. 21. Thereafter, investigation commenced. After completion of investigation, the charge-sheet came to be filed. 3. Charge came to be framed against the appellant under section 302 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. 21. Thereafter, investigation commenced. After completion of investigation, the charge-sheet came to be filed. 3. Charge came to be framed against the appellant under section 302 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 1 above. Hence, this appeal. 4. 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 appellant throttled his wife Anjudevi and caused her death. 5. The conviction of the appellant is mainly based on the evidence of PW 7 Dolly who is the daughter of the appellant and deceased Anjudevi. Dolly has stated that in 2007, they were residing at Vasai. At about 7 p.m., a quarrel took place between her father and her mother (i.e. the appellant and the deceased). Her mother was asking her father for new clothes and her father was telling her mother that he had no money. On account of this, a quarrel took place between her father and mother. Dolly has further stated that thereafter they had dinner and they went to sleep. She was sleeping on the bench and her parents were sleeping on the ground. Hearing shouts of her mother, she got up. She saw that her father was pressing the neck of her mother. Her father was sitting at that time on the chest of her mother. Thereafter she tried to wake up her mother and she came to know that her mother had died. Thereafter police arrived at the spot. She then narrated the incident to the police. She has identified the accused before the Court as her father. 6. The evidence of PW 7 Dolly is corroborated by the evidence of PW 4 Kiran. PW 4 Kiran was a Municipal Councilor at the time of the incident. She has stated that police called her. Some enquiry was made with the girl Dolly, hence, she was called. She has identified the accused before the Court as her father. 6. The evidence of PW 7 Dolly is corroborated by the evidence of PW 4 Kiran. PW 4 Kiran was a Municipal Councilor at the time of the incident. She has stated that police called her. Some enquiry was made with the girl Dolly, hence, she was called. She saw that the girl was frightened. In her presence, some officers were asking questions to that girl and she was giving replies. Dolly stated that in the evening there was quarrel between her father and her mother on account of purchasing of new clothes and as clothes were not bought, the quarrel had taken place. Kiran has stated that Dolly further stated that after dinner they went to sleep. In the night time, Dolly heard some sound, hence, she woke up. The light was on. Mrs. Kiran stated that Dolly stated that she saw her father sitting on the person of her mother and pressing neck of her mother, hence, she got frightened. Dolly stated that she asked her father what had happened and her father told her to keep quiet. Mrs. Kiran has clearly stated that the statement of Dolly was recorded in her presence. She has also stated that Dolly stated all this in her presence. Thus, the evidence of Mrs. Kiran corroborates the fact that Dolly had witnessed her father strangulating her mother. 7. In addition, we would like to advert to the evidence of PW 2 Gulab Yadav. PW 2 Gulab has stated that on 31.5.2007 while passing-by he saw crowd near the house of the appellant. On going near, he noticed that the wife of the appellant was lying dead in the house. Gulab asked the appellant what had happened? Thereupon, the appellant told him that after they had dinner and gone to sleep, in the morning his wife was found dead. The evidence of PW 2 Gulab shows that at the time of the incident only the appellant, his wife Anjudevi and their daughter Dolly were residing in the house. At night, all three had dinner and had gone to sleep and in the morning, the wife of the appellant was found dead. 8. The record shows that only the appellant, the deceased and their minor daughter were in the house at the time of the incident. At night, all three had dinner and had gone to sleep and in the morning, the wife of the appellant was found dead. 8. The record shows that only the appellant, the deceased and their minor daughter were in the house at the time of the incident. In such case, the accused 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 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. 9. It is the prosecution case that the appellant had throttled his wife and caused her death. This is corroborated by the medical evidence. PW 5 Dr. Yadav conducted the postmortem on the dead body of Anjudevi. Dr. Yadav stated that he noticed the following injuries on the body of Anjudevi: "(1) Reddish black contusion of skin at 7 places in front and side of neck, each ranging from .1 x .1 cm. To .5 x .5 cm. The soft tissues underlying the neck are compressed. Subcutaneous tissues show extravasation of blood beneath the nail marks and injured area. To .5 x .5 cm. The soft tissues underlying the neck are compressed. Subcutaneous tissues show extravasation of blood beneath the nail marks and injured area. (2) Superior horns of the thyroid cartilage was fractured". 10. In the opinion of Dr. Yadav, Anjudevi died due to throttling. The injuries were ante-mortem in nature. Dr. Yadav has categorically stated that it was not a case of accidental throttling. 11. One more circumstance which goes against the appellant is that after his arrest, the nail - clippings of both his hands, were obtained. These nail - clippings were sent for chemical analysis. As per the C.A. Report Exh. 42, blood of human origin was found in the nail - clippings of both the hands of the appellant. 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." 12. 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 . It is pertinent to note that the appellant has not given any explanation for the presence of blood of human origin in the nail - clippings of both his hands. 13. v State of Madhya Pradesh 1999(9) SCC 581 and Khujji @ Surendra Tiwari v. State of Madhya Pradesh AIR 1991 SC 1853 . It is pertinent to note that the appellant has not given any explanation for the presence of blood of human origin in the nail - clippings of both his hands. 13. On going through the evidence on record specially the evidence of PW 2 Gulab, PW 4 Kiran and PW 7 Dolly and the medical evidence, we are of opinion that the prosecution has proved its case against the appellant beyond all reasonable doubt. Thus, we find no merit in the appeal and the appeal is dismissed. 14. Office to communicate this order to the appellant who is in Yerawada Open Prison, Pune.