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2021 DIGILAW 386 (BOM)

Bhimrao v. State of Maharashtra

2021-02-17

B.U.DEBADWAR, RAVINDRA V.GHUGE

body2021
JUDGMENT 1. The appeal has been admitted vide order dated 18.12.2020. By this Criminal Application, the applicant-appellant seeks suspension of the substantive sentence and enlargement on bail. He has been convicted by the impugned Judgment dated 30.03.2019 in Sessions Case No. 62/2015 for having committed an offence of murdering his wife, punishable under Section 302 of the Indian Penal Code. 2. We have heard the strenuous submissions of the learned Advocate for the applicant-appellant and learned Prosecutor on behalf of the State. With their assistance, we have gone through the appeal paper-book. 3. The learned Advocate for the applicant-appellant has relied upon the following judgments delivered by this Court : - (a) Syed Aslam Syed Abdul Versus State of Maharashtra, 2008 BCI 68, and; (b) Sou. Ranjana alias Changuna Prakash Sonawane v. State of Maharashtra, 2018 (3) ABR (Cri) 487. 4. The first informant is the mother of the deceased-woman, who was the wife of the applicant-appellant. By her complaint dated 12.06.2015 filed with the Kaij Police Station, she has stated that after her daughter got married to the accused in 2012, her initial period of marital life was in bliss. The accused and his wife were living alone in their residence. As the deceased was not able to give birth to a child and since the accused developed the habit of drinking, he used to abuse and harass the deceased and at times assaulted her. The informant claimed that, the deceased had narrated her woes to her (informant) and by involving certain relatives, the accused was repeatedly counseled. However, he did not change his attitude and behaviour. 5. The informant, however, stated that on 11.06.2015, when she was at her residence at Rahuri, she got a call from the real brother of the accused around 05:00 pm, informing her that the deceased had suffered an 'attack' and she was advised to reach the residence of the accused and carry away her daughter. The informant informed her brother Gautam about the said phone call and along with few others, she rushed to Kaij. These persons reached the residence of the accused around 02:00 am on 12.06.2015. Gautam informed the informant, after viewing the condition of the deceased that, she was no more and there were strangulation marks on her neck. The body of the deceased was taken to the Government Hospital at Kaij for post-mortem. These persons reached the residence of the accused around 02:00 am on 12.06.2015. Gautam informed the informant, after viewing the condition of the deceased that, she was no more and there were strangulation marks on her neck. The body of the deceased was taken to the Government Hospital at Kaij for post-mortem. The informant has then stated the details as regards the condition of the body, in her complaint. 6. We have perused the testimonies of the witnesses, who are examined by the prosecution. We have also perused the inquest panchanama [Exh. 30]. PW4 is the Doctor, who had conducted the post-mortem and the inquest panchanama. Her deposition is at Exh.29. Her narration in paragraph nos. 2 to 6 read as under : - "2. I conducted the postmortem to ascertain exact cause of death. I started postmortem at 12.30 p.m. and concluded the same at 1.30 p.m. The body was of a 30 year old Hindu female. I found multiple cresentric abrasions of size ranging from 0.2 c.m. to 0.6 c.m. present over anterolater aspect of neck bilaterally which were reddish and brownish in colour and cresentric abrasions over face at angle of mandible on right side. 3. On internal neck dissection there was evidence of petechial hemorrhages present above thyroid. Evidence of infiltration of blood seen in strap muscles of neck. Evidence of fracture of hyoid bone on right side. Decomposed frothy fluid seen in larynx and trachea and bronchi, mucosa was decomposed. 4. The body was bloated and distended and rigor mortis had passed off. There were signs of decomposition. Like foul smell, bloating of abdomen, marbling of skin on chest, oozing of foul smelling postmortem fluid from mouth and nostrils. Tip of tongue was protruding. 5. According to my opinion, cause of death is "asphyxia due to throttling". Accordingly, I prepared the postmortem report. I am know shown the said report. It bears my signature. It is in my handwriting. Contents of the same are true and correct. It is marked as Exh.30. 6. If a person is lying on bed and her neck is pressed such cause of death is possible." 7. In her cross-examination, she has supported her findings in the post-mortem and her testimony. We find that she has stated that if a person is lying on a bed and her neck is pressed, such type of death is possible. 8. If a person is lying on bed and her neck is pressed such cause of death is possible." 7. In her cross-examination, she has supported her findings in the post-mortem and her testimony. We find that she has stated that if a person is lying on a bed and her neck is pressed, such type of death is possible. 8. It is not the case of the accused that besides him and his wife, there was any other member of the family residing together in the same premises. It is also not the story put up by the accused that he was not in the house when the deceased may have been strangulated. There is no evidence before the Court to indicate that the body of the deceased was hanging to a hook attached to the ceiling or that the door of the house was bolted from inside and the door had to be broken open to gain access to the body or an entry in the house. 9. The accused had an opportunity of explaining away the incriminating circumstances under Section 313 of the Code of Criminal Procedure. Neither has he put forth any story, nor has he explained as regards he being along with his wife in the house at the time of her strangulation. His only contention is that, he has been implicated. 10. In Neel Kumar Vs. State of Haryana, (2012) 5 SCC 766 , the Hon'ble Apex Court has held that, it is a duty of an accused to explain away the incriminating circumstances against him. Though he may have a right to silence, maintaining silence and declining the opportunity of explaining, even by way of an alibi, would gain him no advantage. If he fails to explain away such incriminating circumstances, it would be an additional link which would be used against him. In the light of the said judgment, we are unable to follow the view taken by a coordinate bench of this Court in Sou. Ranjana (supra), since the judgment in Neel Kumar (supra) was not cited before our learned brothers. 11. In Syed Aslam (supra), an Odhani was discovered and seized. This Court concluded that, the deceased may have been strangulated with the aid of the Odhani. Ranjana (supra), since the judgment in Neel Kumar (supra) was not cited before our learned brothers. 11. In Syed Aslam (supra), an Odhani was discovered and seized. This Court concluded that, the deceased may have been strangulated with the aid of the Odhani. This Court concluded that, as the accused was not proved to be found alone in the house at the time of the death of the deceased since he runs a Pan stall and would have been at his Pan stall in between 03:00 to 03:30 pm, it could not be said that Section 106 of the Evidence Act would operate against him. 12. In the case in hands, there has been no Odhani as being an article said to have been used by the deceased for strangulating herself. There is no evidence of the door having been locked from inside so as to conclude that she committed suicide. 13. In view of the above, we do not find that this is a fit case for suspending the substantive sentence. This application, being devoid of merit, is therefore rejected.