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2018 DIGILAW 939 (BOM)

Sanjay Harichandra Anole v. State Of Maharashtra

2018-04-03

B.R.GAVAI, M.G.GIRATKAR

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JUDGMENT B.R.Gavai, J. - The appellant has approached this Court being aggrieved by the Judgment and Order passed by the learned Additional Sessions Judge, Nagpur in Sessions Trial No.445 of 2015 thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/- and in default to suffer rigorous imprisonment for six months. 2. The prosecution story in a nutshell, as could be gathered from the material placed on record, is thus : On 3.7.2015, at around 2.00 p.m., the accused had a quarrel with his wife Nirmala on the ground of preparation of food and by pressing her neck, he committed murder of deceased Nirmala. Oral report came to be filed below Exh.9 by Sunil Chunilal Bomcher (PW1), who was working in a liquor shop, which was in front of the house wherein the deceased and the accused were working. On the basis of said report, the First Information Report came to be registered vide Crime No.36 of 2015 for the offence punishable under Section 302 of the Indian Penal Code. At the conclusion of investigation, charge sheet came to be filed before the learned Judicial Magistrate, First Class, Ramtek. Since the case was exclusively triable by the learned Sessions Judge, the same came to be committed to the learned Sessions Judge. Learned trial Judge framed charges below Exh.4 for the offence punishable under Section 302 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentence, as aforesaid. Being aggrieved thereby, the present appeal. 3. Heard Mr.N.A.Badar, learned Counsel for the appellant. He submits that the learned trial Judge has grossly erred in convicting the appellant. He further submits that the present case is a case based on the circumstantial evidence and unless the prosecution proves each and every incriminating circumstance and further establishes the chain of events which leads to no other conclusion than guilt of the accused, the order of conviction cannot be sustained. 4. He further submits that the present case is a case based on the circumstantial evidence and unless the prosecution proves each and every incriminating circumstance and further establishes the chain of events which leads to no other conclusion than guilt of the accused, the order of conviction cannot be sustained. 4. Mr.S.M.Ghodeswar, learned A.P.P. for the Respondent/State submits that, in view of extrajudicial confession of the appellant and in view of the Judgment of Hon''ble Apex Court in the case of Trimukh Maroti Kirkan .vs. State of Maharashtra , (2006) 10 SCC 681 , no interference is warranted in the present appeal. 5. Sunil (PW1) is the first informant. He states that he had been to village Turia on the day of incident i.e. on 3.7.2015. When he returned at around 2.00 p.m. and went to the shop where he was working, his younger brother informed him that the accused and his wife Nirmala were quarrelling since morning. House of accused Sanjay is behind the shop. He went to the house of accused Sanjay. He saw from the door of house of accused that accused Sanjay was present in the house. Sunil (PW1) asked him as to why he was quarrelling. The accused narrated that he has killed his wife. The witness further states that he had seen deceased Nirmala sitting adjacent to wall. He had seen that her clothes were scattered. He, therefore, went to Police Station, Deolapar. 6. The testimony of Sunil (PW1) is corroborated by the evidence of Anil (PW6), who is working in the country liquor shop of one Ravi Biyanwar. He states in his evidence that accused Sanjay was residing with his wife Nirmala. There were frequent quarrels between Sanjay and Nirmala. The incident occurred on 3.7.2015 at about 11 p.m. He heard quarrel between the accused and his wife Nirmala. As the quarrel was as usual, he did not pay heed to the said quarrel. At around 2.00 p.m., one Sunil came to their shop and told about the quarrel. Therefore, said Sunil went towards the room of accused Sanjay. He then returned and told this witness Anil (PW6) that the accused had killed his wife Nirmala. Thereafter, Anil (PW6) told about the incident to his owner. The owner asked to file report. Therefore, his brother Sunil filed report in the Police Station, Deolapar. Therefore, said Sunil went towards the room of accused Sanjay. He then returned and told this witness Anil (PW6) that the accused had killed his wife Nirmala. Thereafter, Anil (PW6) told about the incident to his owner. The owner asked to file report. Therefore, his brother Sunil filed report in the Police Station, Deolapar. It could thus be seen that the extrajudicial confession made to Sunil (PW1) also corroborates evidence of Anil (PW6). 7. The Division Bench of this Court, to which one of us (B.R.Gavai, J) is a party, in the case of Rameshwar s/o. Dinaji Dhawde .vs. State of Maharashtra , (2016) 4 MhLJ(Cri) 127, after considering the entire law laid down by the Hon''ble Apex Court with regard to extrajudicial confession, has observed thus : "12. It could thus be seen that after surveying the earlier position of law, Their Lordships of the Apex Court came to the conclusion that the extrajudicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. It has further reiterated that the extrajudicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extrajudicial confession should inspire confidence and the Court should find out whether there are other cogent circumstances on record to support it. No doubt, in the said case, Their Lordships rejected the extrajudicial confession on the ground that it as recorded after four days and that the statement which is sought to be made in the extrajudicial confession on the independent scrutiny of the evidence was found to be not established by the Court. On the contrary, it was found that the motive which was attributed to the said extrajudicial confession was contradicted by the prosecution witnesses itself. " 8. We are of the considered view that, in the present case, the words expressed by the witnesses are clear, unambiguous and clearly convey that the accused is the perpetrator of the crime. Perusal of the evidence would reveal that the extrajudicial confession is voluntary and not obtained by coercion, force, fraud etc. " 8. We are of the considered view that, in the present case, the words expressed by the witnesses are clear, unambiguous and clearly convey that the accused is the perpetrator of the crime. Perusal of the evidence would reveal that the extrajudicial confession is voluntary and not obtained by coercion, force, fraud etc. We find that, in the present case, the extrajudicial confession given by accused to Sunil (PW1) passes the test of credibility and is one which inspires confidence in the Court. 9. There is another angle. Undisputedly the accused and the deceased were the husband and wife and were living together. The accused was seen with his wife, who was found dead in his house. It will be relevant to refer to the following observations of the Hon''ble Apex Court in the case of Trimukh Maroti Kirkan : "Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." 10. We find that, in the present case, though prosecution has discharged the initial burden, the accused has utterly failed to discharge the burden on him to offer explanation as to how death of the deceased has occurred. 11. Perusal of the Post Mortem report would reveal that the deceased has received the following ten injuries : 1. 3 x 2 cm. CLW with laceration over left angle of both lips with swelling. It was within 24 hours simple due to may be hard and blunt object; 2. 3 x 3 cm laceration over left side face starting from outer cantus of eye to 3 cm down simple in nature within 24 hours. 3. 3 x 2 cm. CLW with laceration over left angle of both lips with swelling. It was within 24 hours simple due to may be hard and blunt object; 2. 3 x 3 cm laceration over left side face starting from outer cantus of eye to 3 cm down simple in nature within 24 hours. 3. 3 x 4 cm on forehead there is imprint mark of red and black colour with cutaneous bleeding under skin due to hard and blunt object within 24 hours simple; 4. 6 x 4 cm red and black marks with cutaneous on right side of anterior aspects of neck procuring towards left side towards medially crossing towards lateral side within 24 hours grievous in nature. 5. Evidence of fracture hyoid bone; 6. 3 x 3 cm left side of chest wall red and black imprint marks of blunt trauma; 7. 3 x 6 cm abrasion on left side of chest wall within 24 hours simple in nature; 8. Fracture 3rd, 4th and 5th rib on left side within 24 hours simple in nature. 9. Fracture 2nd, and 4th on right side within 24 hours simple in nature. 10. Left side hand there was fracture radioulnar lower 1/3rd closed fracture fresh within 24 hours simple in nature, caused by hard and blunt object. The cause of death given in the post mortem is thus : "Death due to cardiorespiratory arrest due to intracranial hemorrhage due to blunt trauma with throttling." It could thus be seen that the medical evidence also corroborates the prosecution case. 12. In that view of the matter, we find that though the present case is a case based on circumstantial evidence, the prosecution has established that it is the accused who has committed the crime. The appeal, therefore, has no merit. Hence, the appeal is dismissed.