Dinesh Sahebrao Kadam vs The State Of Maharashtra on 4 July, 2017

1 APEAL252.2013

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.

CRIMINAL APPEAL NO. 252 OF 2013

Dinesh Sahebrao Kadam,
Age : 36 years, Occu. Agricultural,
R/o. Takalgaon, Tq. Renapur,
Dist. Latur. Appellant…

Versus

The State of Maharashtra. Respondent…
……….
Mr Joydeep Chatterji, Advocate for the appellant
Mr K. S. Patil, APP for respondent/State
………….

CORAM : R. M. BORDE
A. M. DHAVALE, JJ.

RESERVED ON : 14TH JUNE, 2017
PRONOUNCED ON : 04TH JULY, 2017

JUDGMENT (Per A. M. Dhavale, J.) :-

1. Accused No. 1-Dinesh, being aggrieved by the Judgment

delivered by the learned Ad-hoc Additional Sessions Judge-1, Latur,

in Sessions Case No. 49 of 2009, convicting him for the offences

punishable u/s 302 and 309 of the Indian Penal Code, has preferred

this appeal. The appellant was sentenced as follows:

Sr.No. Offence Substative Fine In default
1 302
IPC Life Imprisonment 1000/- RI 1 month.
2 309
IPC SI 3 months.
Concurrent.
3 498A
IPC Acquittal.

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. In the said case, the parents and brother of the appellant

were also prosecuted with additional charge u/s 498A r/w 34 of the

IPC, but they have been acquitted.

2. Facts in brief, necessary for the decision of this Criminal

Appeal may be stated thus –

Deceased – Manisha, aged 29 years, was daughter of a

farmer PW-6, Haribhau, resident of Takalgaon, Tq. Renapur, Dist.

Latur. Besides Manisha, Haribhau had three sons. In 1998, Manisha

was given in marriage to accused No. 1 – Dinesh (appellant), who is

son of accused No. 2 – Sahebrao and accused No. 4 – Yamunabai.

Accused No. 3 – Kiran is younger brother of the appellant. They are

also residence of same village Takalgaon. But Kiran shifted to Latur.

After marriage, Manisha started cohabiting with her husband and she

was blessed with two male children namely; Atul Amar (PW7).

The accused are also farmers, holding around 20 acres of land.

Accused No. 1 – Dinesh was admittedly addicted to liquor. There was

partition between the accused inter se and, accused No. 1 – Dinesh

converted a cattle shed fallen to his share into a house and he was

residing there separately along with Manisha and his two children.

Relations between accused No. 1 and Manisha were strained.

Manisha filed a suit bearing R.C.S. No. 725/2005, for partition on

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behalf of her two children in the court of Civil Judge Senior Division,

Latur on 09.12.2005. Due to strained relations, Manisha was

residing along with her children at her maternal house for about 7-8

months in 2005-06, but there is undisputed material showing that the

differences were settled amicably and Manisha resumed cohabitation

with accused No. 1 – Dinesh. Still the suit for partition was

continued.

3. Accused No. 3-Kiran was residing at Latur. On 16.12.2008,

he reported (Exh. 140) to the police of Renapur Police Station that

on the very day at about 10:00 a.m., he had been to Takalgaon and

found that, his brother accused No. 1 – Dinesh and brother’s wife

Manisha had consumed poison. Manisha was found dead and

accused No. 1 – Dinesh was found unconscious in their house. He

had arranged to send accused No. 1-Dinesh to the hospital for

treatment. Accused No. 1-Dinesh was produced at 12:30 noon before

Dr. Dinkar Dandade (PW8) at Rural Hospital, Renapur. He was

unconscious. He had consumed some unknown poison. He was later

referred to Government Hospital at Latur. The police arrived on the

spot and conducted inquiry into the accidental death case u/s 174 of

the Code of Criminal Procedure (hereinafter referred to as “CRPC”).

Another brother of the accused namely; Deepak showed the spot

where the dead body of Manisha was lying. There was one empty

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bottle of Touch-down insecticide. On the spot, there was one cotton

rope and a chit purportedly written by accused No.1-Dinesh, stating

therein that he had committed murder of his wife and he was

committing suicide for which nobody should be held responsible. He

blamed his mother-in-law and brother-in-law for his acts. On the

same day at about 8:00 p.m., father of deceased -Manisha (PW6)

lodged FIR at Renapur Police Station. He disclosed that, all the

accused were insisting deceased-Manisha to claim partition in the

property of her father and subjected her to ill-treatment, beating and

starvation. Whenever Manisha used to visit her maternal house, she

was disclosing these facts to her maternal relatives. Manisha had

filed court proceedings for maintenance in the year 2006 and was

residing at her paternal house. The accused promised to treat

Manisha well and the matter was settled. Thereafter, Manisha

resumed cohabitation, still Manisha was subjected to beating

abuses. On 16.12.2008 at 11:00 am., PW6 learnt about the death of

Manisha. He immediately rushed to her matrimonial house and

found that she was dead and there was ligature mark on her neck.

Her husband was inside the house (? unconscious condition) while

other accused were outside the house. On the basis of FIR, crime was

registered as C.R. No. 151/2008 for offences punishable u/s 302

498A r/w 34 of the IPC and was investigated into. Inquest

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panchanama was drawn on the dead body and autopsy was

conducted on the next day at Rural Hospital, Renapur. Medical

Officer opined that, Manisha died due to compression of neck. The

investigation revealed that, PW7-Amar, (son of accused and deceased

– Manisha), had witnessed the incident at about 3:00 to 4:00 AM.

He had seen his father sitting on the chest of Manisha and throttling

her. Statement of Amar and his brother were recorded before the

Judicial Magistrate First Class u/s 164 of the CRPC. All the accused

were arrested. The Investigating Officer recorded statements of

material witnesses. The articles found on the spot were seized and

sent for chemical analysis. The chit found on the spot was sent to

Handwriting Expert along with Specimen handwriting of the accused

and there was report of Handwriting Expert (PW9) that chit was in

the handwriting of accused No. 1. After completing investigation, the

prosecution filed charge-sheet with a case that, accused Nos. 1 to 4

had subjected Manisha to cruelty and all of them committed murder

of Manisha.

4. In due course, the case was committed to the court of

Sessions. The learned Addl. Sessions Judge framed charge u/s 302

498A r/w 34 of the IPC against all the accused. Later on, additional

charge u/s 309 of the IPC was framed against accused No. 1. The

accused pleaded not guilty.

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6 APEAL252.2013

5. The prosecution examined 14 witnesses. The accused in his

statement u/s 313 has denied all the facts. He has not given any

explanation about the incident. It is his defence that, Manisha’s

maternal relatives were insisting for partition and allotment of land

to his sons and since the accused were not ready, they have been

falsely implicated. In the cross, it was even suggested that Manisha

committed suicide.

6. The learned Addl. Sessions Judge discarded the evidence of

sole eye-witness Amar and also did not rely on the chit showing

extra-judicial confession by accused No. 1 on technical ground and

she relied on the circumstantial evidence of custodial death and

provisions of Section 106 of Evidence Act to hold accused No. 1 alone

guilty for offences u/s 302 and 309 of IPC and sentenced him as

referred to above. Hence, this appeal.

7. Shri. Joydeep Chatterji, learned counsel appearing for the

appellant has taken us through the evidence on record. He made

following submissions.

(i) The learned trial Judge has rightly disbelieved PW7-Amar

as he is a tutored witness and whatever material facts he

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has deposed are by way of omissions. The first submission

is that, once the prosecution proceeded on the footing that

incident was witnessed by eye-witness and the eye-witness

is disbelieved, the prosecution cannot revert back to the

presumption arising u/s 106 of the Evidence Act. In this

regard, he relied on Murlidhar V/s State of Rajasthan,

(2005) 11 SCC 133.

(ii) The second submission is that, there was no proper

investigation. The Investigating Officer had selected the

relatives of Manisha’s father as panch witnesses. There are

contradictions and suspicious circumstances in the evidence

of all the witnesses. He submitted that the learned trial

Judge has rightly discarded evidence in the form of chit of

confession of accused No. 1, as the natural handwriting of

the accused was not forwarded to the Handwriting Expert.

In this regard, he and learned trial Judge relied on the ratio

in Dipti Devasthale Leena Devasthale Vs. State of

Maharashtra 2009 ALL MR (Criminal) 3547.

(iii) He fairly submitted that, he was not challenging the

conviction of the accused No. 1 u/s 309 of IPC and stated

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8 APEAL252.2013

that the accused has already undergone the said sentence.

(iv) He argued that, PW6-Haribhau and PW5-Meghraj father

and brother of deceased, respectively, have given

admissions to show that the appellant was prosecuted as he

did not transfer his land to his minor sons. Shri. Chatterji

also argued that the injury of deceased-Manisha could not

have been caused by rope seized from the spot. He

submitted that, in the light of these facts, the appeal be

allowed and appellant be acquitted of the offence u/s 302

of the IPC.

8. The points for consideration with our findings thereon are

as follows.

POINTS FINDINGS

(I) Whether Manisha met with homicidal
death? In the affirmative.

(II) Whether the appellant-Dinesh has
committed murder of Manisha? In the affirmative.

(III) Whether any interference is necessary
in the conviction and/or sentence? In the negative.

(IV) What order? The appeal is
dismissed.

9. The prosecution has examined 14 witnesses relied on

documents proved, which may be conveniently grouped as follows:

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                                     9                        APEAL252.2013

Group - I (Homicidal Death)

PW2 - Dr. Anuradha Suryakant Male - Medical Officer, PHC, Janwal,
who conducted post-mortem.

PW11 - Police Naik Kumbhar - who carried the sealed box of viscera
of the deceased to Chemical Analyzer, Aurangabad.

Documents:

(i) Inquest panchanama dt. 16.12.2008 at 13:00 hrs. Exh. 45.

(ii)      Request letter for P.M. (Exh. 62).
(iii) P.M. Notes dt. 17.12.2008 from 9:30 to 11:00 AM (Exh. 65).
(iv) Letter to Chemical Analyzer dt. 23.12.2008 (Exh. 130).
(v) C.A. Reports (Exhs. 63 64).
(vi) C.A. Report of Viscera (Exh. 150 151).

(vii) Accidental death report of accused No. 3 - Kiran dt.

16.12.2008 (Exh.140).

Group - II (Previous ill-treatment disputes)

PW4 - Hanmant, witness to compromise.

PW5 - Meghraj, brother of deceased-Manisha.

PW6 - Haribhau, father of deceased-Manisha.

Documents:

(i) FIR dt. 16.12.2008, 8:00 PM (Exh. 113).

(ii) Certified copy of T.I. Application in R.C.S. No. 729/2005
(Exh. 156).

(iii) Omissions of PW7-Amar proved by API-Kamble at Exh. 154.

(iv) Statement of Amar dt. 22.08.2008 (Exh. 164)

Group-III (Eye-witnes evidence)

PW7 - Amar, son of deceased, aged 6 years.

Group-IV (Evidence of written extra-judicial confession).

PW1 - Ramraje Deshmukh, Panch to spot panchanama at Exh. 58
and seizure of chit (
Art. 83).

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PW3-Bibhishan Tukaram Jadhav, Panch to specimen handwriting of
the accused taken by police. Panchanama Exh.67 and specimen
handwriting Exh. 68 to 74.

PW10 - Head Constable-Mr. Bhosale (Carrier).
PW14 - PI Ranjankar-Sender of documents to Handwriting Expert.
PW9 - Sanjay Kathar (Handwriting Expert)

Document:

Opinion with reasons of Handwriting Expert (Exh. 125, 126 127).

Group - V (Custodial Death)

PW1 - Ramraje Deshmukh
PW4 - Hanmant Landge
PW5 - Meghraj, brother
PW6 - Haribhau, father
PW7 - Amar, son
PW8 - Dr. Dinkar (evidence of poisoning bottle of poison found in
the house of accused).

PW12-Head Constable-Vilas Malawade, who received report
(Exh. 140) from accused No. 3 - Kiran. First report of death of
Manisha.

10. Point No. 1 - Whether Manisha died a homicidal death?.

There is consistent oral evidence of PW 1, 4, 6 7 that on

16.12.2008, in the morning, Manisha's dead body was found in the

house of accused No.1 - Dinesh, with whom she was cohabiting in

the same house. Accused No. 3 - Kiran has reported the matter to

Police vide report (Exh. 140), which was received by Police Head

Constable - Vilas Malwade (PW12), at 1:15 p.m., at Renapur Police

Station. In answer to questions No. 94 95, the accused has

admitted that his brother had gone to Police Station and lodged

report vide Exh. 140. There is no dispute as to the fact that dead

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body of Manisha was found in the house of accused on 16.12.2008,

in morning. There is also oral evidence of several witnesses that

there were ligature marks on the neck of deceased - Manisha. PW7-

Amar is son of accused deceased-Manisha. He was 6 years old at

the relevant time. Though his evidence on material aspect of murder,

as discussed later, is not reliable, he has also deposed and it is not

disputed that his mother was lying dead and she had injury on her

neck. This dead body was sent for post-mortem and P.W. 2 - Dr.

Anuradha has conducted post-mortem at Rural Hospital, Renapur.

Her post-mortem note Exh. 65 shows that there were only two

injuries on the person of Manisha, which are as follows:

(i) Abraded contusion over neck, anterior aspect 3 cm below
thyroid cartilage size 3x1 cm. horizontal in direction, reddish in
colour on neck dissection, evidence of hemorrhage in muscles of
neck corresponding to abraded contusion over neck site.

(ii) Abrasion to right leg near to lateral malleolus ½ x ½ cm. reddish
in colour.

11. The second injury is minor and insignificant. The first

injury is fatal one. The Medical Officer opined that "Manisha died

due to compression of neck". The CA report of viscera shows no

poisoning.

12. In cross-examination, it is brought on record that the

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ligature marks were not around the entire neck. There was no injury

to trachea bronchi and no fracture to hyoid bone. Doctor opined

that, in all cases of strangulation, damage to trachea bronchi or

fracture of hyoid bone is not a must.

13. In case of throttling, windpipe will be closed down and a

person may die due to suffocation. The circumstances on record show

that deceased-Manisha met with death while she was sleeping in the

house. She has no other injury except one insignificant abrasion to

right leg. We agree with the opinion of the Doctor that there can be

suicide by strangulation but it cannot be accepted that there can be

suicide by throttling. The nature of injury shows that the ligature

mark was not around whole neck. It was only 3 cm in length. It

can't be case of strangulation but it is a case of throttling and such

throttling must be by some other person. We, therefore, agree with

the findings recorded by the learned trial Judge that it is a case of

homicidal death.

14. Point No. 2 : Whether the accused committed murder of

Manisha?

The prosecution relied on following material.

(i) Evidence of eye-witness PW7 - Amar, aged 6 years, son of
accused and the deceased-Manisha.

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(ii) Circumstantial evidence of custodial death.

(iii) The circumstantial evidence about previous disputes and
ill-treatment by accused No. 1 to deceased-Manisha.

(iv) A confessional chit found on the spot written by accused.

15. As far as the first material is concerned, PW7 - Amar was

aged 9 years at the time of his deposition in November-2012. Thus,

in the year 2008, he was aged about 5 years. He is a child witness.

Being a child witness, he can imagine certain things or he can be

tutored or there can be lapse of memory or he can have false memory

and, therefore, the evidence of child witness is to be appreciated with

care and caution. In this regard, the learned trial Court has rightly

relied upon Bhagwan Singh and others Vs. State of M.P. reported in

AIR 2003 SC 1088.

16. PW7 - Amar has stated that, he was residing with his elder

brother Atul and his parents. His father was addicted to liquor and

he used to beat his mother whenever he was in drunken condition. As

per his evidence, on the fateful night at about 3:00 to 4:00 am, he got

up for urination. That time, electric bulb in the room was

illuminating. He saw that, his father was sitting on the chest of his

mother and he throttled her. Thereafter, he woke up in the morning.

He stated that, his mother as well as father did not wake up in the

morning. He came out of the house by opening the door. Learned

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Advocate Shri. Chatterji submitted that, evidence of PW7 is not

acceptable. It has come in his cross-examination that, in the morning

PW7 Amar met his maternal uncle and grand-parents as well as

police. He did not disclose the incident to them. His statement was

recorded after 2-3 days and his statement before Judicial Magistrate

u/s 164 of CRPC was recorded on 22.12.2008 i.e. after six days of the

incident. Learned advocate for the accused in trial Court has proved

omissions regarding the entire material evidence of PW7-Amar. He

has brought on record that, the evidence of PW7 that he got up for

urination, the bulb in the room was illuminating that, he saw his

father was sitting on chest killing his mother by throttling, is all by

way of omissions. These omissions are duly proved through I.O. -

P.W. 14 - PI Ranjankar (Exh. 154). He did not raise shouts nor did

he weep on watching the incident. At the end he admitted that he

did not know what happened in the night. As held in Bhagwan

Singh's case (supra), in all probabilities, PW7 Amar was fast asleep,

his brother did not wake up and so he also must not have waken up

till the morning. He must not have seen the incident but after the

death of his mother, he was in custody of his maternal uncle and

maternal grant-father who were having strong grudge against

accused No. 1. He appears to be a tutored witness. His evidence is

rightly not relied upon by learned trial Judge.

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Previous disputes and enmity :

PW-6, father of the deceased has deposed that Manisha was

married to accused in 1998 and she was treated well initially for a

period of two years. Thereafter, she was subjected to physical and

mental harassment. She was not provided with food. She was asked

to claim partition in the property of her father. She was beaten up by

all the accused and driven out of the house. She was residing at her

maternal house. She had filed a suit for maintenance. Thereafter

there was mediation and accused No. 1 promised to treat Manisha

well and he would not beat her. Hence, the proceedings for

maintenance was withdrawn and Manisha resumed cohabitation.

PW4 - Hanmant has deposed that the meeting for resuming

cohabitation took place in his presence. Manisha thereafter resumed

cohabitation but he stated that the litigation between accused No. 1

and deceased Manisha was still pending. He has no personal

knowledge about the same. The evidence of PW5, PW6 PW7 that,

the accused No. 1 was addicted to liquor, he used to drink liquor

pick up quarrels with Manisha has not been challenged. In fact, there

are suggestions to that effect from the defence advocate to PW7-

Amar. P.W.5 Meghraj is brother of deceased Manisha. He has also

supported his father on the point of ill-treatment meted out to

Manisha by accused No. 1-Dinesh. He deposed that, Manisha started

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residing in his house due to differences but after successful

mediation, she resumed cohabitation. Even thereafter, she was

subjected to ill-treatment. In cross-examination of PW5, it has been

brought on record that Dinesh had filed petition for restitution of

conjugal rights u/s 9 of Hindu Marriage Act, while Manisha had filed

suit for partition and separate possession of share of her sons. He

was looking after both the matters. He admitted that none of the

matters has been withdrawn from the Court. In 2007, fodder and

cattle shed of accused no. 1 was set ablaze and accused No. 1 Dinesh

had lodged report against PW5-Meghraj for the same. Though PW5

denied this allegations that, he admitted that there was a case against

him for outraging modesty of wife of uncle of accused No. 1 - Dinesh.

There are admissions in the evidence of PW5 PW6 that, they were

demanding from accused no. 1 separate possession of shares of Atul

Amar, sons of accused No. 1 Manisha. Though PW5 PW6 have

implicated accused Nos. 2 to 4 in the crime with hardly any material

against them, I find that the facts undisputed disclose strained

relations between deceased-Manisha and accused No. 1 - Dinesh.

Accused No. 1 - Dinesh had also strained relations with Manisha's

brother and father. Thus, there was sufficient motive for accused No.

1 - Dinesh to commit murder of Manisha.

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17. On discarding evidence of PW7-Amar, the prosecution has

relied on the factum of custodial death. There is undisputed evidence

of PW1, PW4, PW6 PW7 to show that, accused No. 1 - Dinesh

deceased Manisha along with their two sons were residing in a house,

separately from parents and brothers of accused No. 1. There is

trustworthy evidence to show that, on 16.12.2008 in the morning the

dead body of Manisha was found inside the house and accused No. 1

- Dinesh was lying there in unconscious condition. PW7 Amar's

evidence that the door was latched from inside, he opened it came

out is not challenged. There is evidence of PW8 - Dr. Dinkar that

accused No. 1 was unconscious due to poisoning. One empty bottle

of insecticide namely; Touch-down was found in the room. Accused

No. 1 has been convicted for attempting to commit suicide and his

conviction has not been challenged, therefore it is admitted fact that

on that night accused No. 1 had attempted to commit suicide. It is a

case of custodial death of Manisha, who died in the house which was

occupied by her with her husband and her minor children. There is

convincing material on record to show that it was a homicidal death.

As already discussed, the minor sons of the accused must be fast

asleep and they must not have seen anything. Thus, there was no

eye-witness to the incident. In this situation, it was for the accused to

explain as to how Manisha died inside the house and why has he

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attempted to commit suicide. The cross-examination of the

prosecution witnesses, statement of accused No. 1 u/s 313 of CRPC,

gives no explanation to these most incriminating facts. Section 106

of Evidence Act reads as follows:

106. Burden of proving fact especially within knowledge.

--When any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.

(a) When a person does an act with some intention other
than that which the character and circumstances of the act
suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket.
The burden of proving that he had a ticket is on him.

18. The law of burden of proving a fact u/s 106 of Evidence Act

in cases where the facts are especially within the knowledge of the

accused, is laid down as follows:

(i) Trimukh Maruti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681.

14. The question of burden of proof where some facts are within the
personal knowledge of the accused was examined in
State of West Bengal
v. Mir Mohammad Omar Ors. (2000) 8 SCC 382. In this case the
assailants forcibly dragged the deceased Mahesh from the house where
he was taking shelter on account of the fear of the accused and took him
away at about 2.30 in the night. Next day in the morning his mangled
body was found lying in the hospital.

This Court took note of the provisions of Section 106 of the
Evidence Act and laid down the following principle in paras 31 to 34 of
the reports : "31. The pristine rule that the burden of proof is on the
prosecution to prove the guilt of the accused should not be taken as a
fossilised doctrine as though it admits no process of intelligent reasoning.
The doctrine of presumption is not alien to the above rule, nor would it
impair the temper of the rule. On the other hand, if the traditional rule
relating to burden of proof of the prosecution is allowed to be wrapped
in pedantic coverage, the offenders in serious offences would be the
major beneficiaries and the society would be the casualty.

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34. When it is proved to the satisfaction of the court that
Mahesh was abducted by the accused and they took him out of
that area, the accused alone knew what happened to him until
he was with them. If he was found murdered within a short
time after the abduction the permitted reasoning process would
enable the court to draw the presumption that the accused have
murdered him. Such inference can be disrupted if the accused
would tell the court what else happened to Mahesh at least until
he was in their custody."Applying the aforesaid principle, this
Court while maintaining the conviction under
Section 364 read
with
Section 34 IPC reversed the order of acquittal under
Section 302 read with Section 34 IPC and convicted the accused
under the said provision and sentenced them to imprisonment
for life.

15. In Ram Gulam Chaudhary Ors. v. Sate of Bihar (2001) 8
SCC 311, the accused after brutally assaulting a boy carried him away
and thereafter the boy was not seen alive nor his body was found. The
accused, however, offered no explanation as to what they did after they
took away the boy. It was held that for the absence of any explanation
from the side of the accused about the boy, there was every justification
for drawing an inference that they have murdered the boy. It was further
observed that even though
Section 106 of the Evidence Act may not be
intended to relieve the prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt, but the section would apply to cases
like the present, where the prosecution has succeeded in proving facts
from which a reasonable inference can be drawn regarding death. The
accused by virtue of their special knowledge must offer an explanation
which might lead the Court to draw a different inference.

It is also observed that, when an incriminating circumstance is put
to the accused and the said accused either offers no explanation or offers
an explanation which is found to be untrue, then the same becomes an
additional link in the chain of circumstances to make it complete.

22. Where an accused is alleged to have committed the murder of his
wife and the prosecution succeeds in leading evidence to show that
shortly before the commission of crime they were seen together or the
offence takes place in the dwelling home where the husband also
normally resided, it has been consistently held that if the accused does
not offer any explanation how the wife received injuries or offers an
explanation which is found to be false, it is a strong circumstance which
indicates that he is responsible for commission of the crime.

(ii) State of Rajasthan Vs. Thakur Singh 2014(12) SCC 211

Dhapu Kavar wife of the accused died unnatural death while
in a locked up room along with Thakursingh and their daughter. The
door was broken open and Thakursingh was caught and tied by his

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brothers other relatives. Thakursingh gave no explanation. One
witness Gotusing though material was not examined and all other 14
material witnesses turned hostile. It was established that it was a case
of custodial death.

The Apex Court again referred cases of Shambhunath,
Trimukh Maruti and Dnyneshwar vs State of Mah, Jagdish vs State of
MP, Gyanchandra Vs State of Haryana to hold the accused guilty and
allowed the appeal against Judgment of acquittal passed by the High
Court.

(iii) Dhanaji Madne Vs State of Maharashtra 2014(3) BCR Cri. 394

Learned APP relied on following judgments.

The accused was prosecuted for committing murder of his
wife Vandana for having illicit relations with one. The Sessions Judge,
Sangli convicted him u/s 302 of
IPC. The case was based on
circumstantial evidence. PW-5 Suvarna daughter of deceased and
accused deposed that her father was addicted to liquor and used to
abuse and beat her mother. On the fateful night also, her father
consumed liquor and abused and bet her mother. The accused had illicit
relations with Bitu and told her not to go to the field of Vitthal Kapse.
Suvarna gave a ring to her maternal grandfather Hariba and informed
the facts. Her father contrary to the regular practice forced his
daughters to sleep in the courtyard. Her father and Vandana slept
inside the house. Suvarna heard shouts of Vandana at night time.
Suvarna sought help of PW9 Rajamma and other members to save her
mother but in vain. The girls slept in the house of neighbour and on the
next day found that, house was opened, blood was lying and dead body
of her mother was lying on the road. The Division Bench of this Court
relied on Gura Singh Vs.
Vs State of Rajasthan
2001(2) SCC 205,
State of Rajasthan Vs Teja Ram (1999)3 SCC 507, State of
Rajasthan Vs Kashi Ram AIR 2007 SC 144, to hold the accused guilty.

(iv) Sunil Raut Vs. The St of Maharashtra (Criminal Appeal No. 212/13,
decided on 25.10.2016).

In similar facts of custodial death, the accused was held
guilty. It seems that, there were differences of opinion amongst two
Judges of Division Bench as to what offence was made out. The matter
was referred to the third Judge Justice T. V. Nalawade and he by
Judgment dt. 14.12.2016 held that offence of murder was made out and
is not a case of culpable homicide.

19. In Murlidhar's case, the facts were different. The

prosecution came out with a case that the incident of murder was

witnessed by four witnesses namely; Babulal, Ramratan, Isro

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21 APEAL252.2013

Govinda PW5, PW7, PW10 PW13. The Apex Court found them

wholly unreliable due to replete with contradiction and inherent

improbabilities. It was the case where there was other evidence

available but it was not trustworthy. It means, the facts were not

especially within the knowledge of accused as explained in

Shambhunath Mehra's case. The word 'especially' stresses, facts that

are per-eminently or exceptionally within his knowledge. Since it

was not so, in Murlidhar's case, the Apex Court observed that the

provisions of Section 106 cannot be invoked.

20. In the present case, the facts are different. The death took

place inside the house of accused No. 1 where he was residing along

with his wife Manisha and two minor sons. The material on record

shows that the murder was committed so skillfully that there was no

resistance, no shouts or cries by Manisha. Therefore, her two minor

sons had no reason to get up and see the incident. PW7-Amar has

admitted that, he had no knowledge about what happened during the

night. Still the prosecution made a lame attempt to pose PW7 as an

eye-witness. It is a case of poor investigation, but the facts clearly

indicate that there was no eye-witness to the incident and the facts

were especially within special knowledge of the accused. We,

therefore, find that the facts in Murlidhar's case are not applicable to

the present case as the case is clearly distinguishable on facts. The

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22 APEAL252.2013

accused has not given any explanation as to how Manisha died in the

house. Manisha met with homicidal death in the house where she

was residing with him and his failure to explain as to why he

attempted to commit murder are sufficient to draw presumption u/s

106 of the Evidence Act. Ratio in Trimukh's case is squarely

applicable. The facts referred herein above are sufficient to hold the

appellant guilty for committing murder of Manisha.

21. There is no material whatsoever to show that the murder of

Manisha by accused No. 1-Dinesh would not amount to murder but

culpable homicide not amounting to murder.

22. In view of our findings, the appeal against conviction u/s

302 of IPC deserves to be dismissed on the basis of above facts alone.

However, we find that there is additional material in the form of

written extra-judicial confession left by accused No. 1-Dinesh in the

house. The said evidence was discarded by learned trial Judge. We

find that, the said evidence could not have been discarded.

23. PW1-Ramraje Deshmukh is a spot panch. The panchanama

was drawn at 3:45 p.m., which is at Exh. 58. It was drawn by PW13

API-Dilip Kamble. Both of them deposed that at the time of spot

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23 APEAL252.2013

panchanama, one chit was found in the room of the accused which

was purportedly written by accused No. 1 - Dinesh. It was seized by

police. At that time, accused No. 1 was unconscious as he had

consumed poison. He was arrested later on 26.12.2008. Thereafter,

the Investigating Officer recorded specimen handwritings of the

accused in presence of PW3-Bibhishan. The specimen handwritings

are at Exh. 68 to 73. PW10-Police Constable-Balwant Bhosle carried

the disputed chit and specimen handwritings to Handwriting Expert

at Aurangabad and obtained acknowledgement of delivery (Exh.

131). PW9-Sanjay Kathar is the Handwriting Expert. He has

examined the disputed handwriting and the specimen handwritings

by using magnifying devices such as simple lens, ultra lens and

microscope. He examined those document with the help of various

lighting conditions, such as direct light, oblique light and transmitted

light and came to conclusion that the person who has written the

contents of the specimen handwritings S-1 to S-6, has written the

contents of disputed document marked as Exh. Q. He has accordingly

submitted his opinion vide Exh. 126. It was transmitted by his Junior

with a letter (Exh. 127) addressed to Superintendent of Police.

24. The cross-examination was directed to establish that there

was difference about the disputed handwriting and specimen

handwritings with respect to certain letters or words. In spite of

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24 APEAL252.2013

minor differences noticed, the handwriting expert has given his

specific opinion that the specimen handwritings as well as

handwriting on chit was of the same person. He has stated that there

was no differentiation of characteristics but natural variation. We

have examined the disputed chit marked as Article No. 3 and the

specimen handwritings (Exh. 68 to 73). The chit was written under

the mood of committing suicide whereas; the admitted specimen

handwritings are given knowing-fully well that the specimen

handwriting will be used against him and if those are found as per

the disputed chit (Article No. 3), he would be booked for murder.

When any handwriting is to be examined, it is not expected that any

two handwritings of a person would be identical but the

characteristics of such handwriting shall be similar irrespective of the

fact whether the writing is executed hurriedly or slowly.

25. It is true that, the Investigating Officer did not collect the

natural handwriting of the accused for forwarding it along with the

disputed chit and specimen handwritings to the Handwriting Expert.

Exh. 74 is an application sent by accused No. 1 from jail but he might

have got it written from somebody else and it was not exhibited on

the basis of evidence on record. It is not natural handwriting. Exh.

74-application was sent by accused No. 1 much later on 11.08.2010.

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25 APEAL252.2013

26. The learned trial Judge relied on Dipti Devasthale Leena

Devasthale Vs. State of Maharashtra reported in 2009 ALL MR

(Criminal) 3547.

27. In the present case, the confessional statement of accused

No. 1 is not recorded by police as was the case in Dipti Devasthali's

matter. This is a written extra-judicial confessional statement of

accused No. 1 not made before the police officer and is very much

admissible in evidence. In Dipti Devasthale's case, the police had

recorded confessional statement of accused No. 2, which was hit by

Section 25 of the Evidence Act and portion thereof was sent to the

handwriting expert as a natural handwriting of accused No. 2. This

practice was deprecated and on that ground the expert's opinion was

discarded. If the confessional statement itself is a disputed document

admissible in evidence, Investigating Officer is bound to send it for

comparison of handwritings. In Dipti Devasthale's case, it has not

been laid down that if the natural handwriting is not sent the report

of handwriting expert cannot be taken into consideration. The

learned trial Judge did not minutely consider the facts of the case of

Dipti Devasthale and the ratio laid down therein. As held in State of

Bombay Vs. Kathi Kalu Oghad reported in AIR 1961 SC 1808

(Constitution Bench), taking of specimen handwriting of the accused

is not compelling the accused to be witness against himself and is not

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26 APEAL252.2013

hit by Art. 20(3) of the Constitution.

28. Apart from the above facts, we find that the facts in the

particular case are very peculiar. It was disputed as to whether the

chit was found in the house or not but we find that, there is no

possibility of plantation of such chit by Manisha's maternal relatives.

The chit was found in the house of Manisha and her husband.

Manisha died at night time. Her son opened the door in the

morning. Thereafter, accused No. 1-Dinesh's relatives first learnt

about the murder of Manisha and attempt to commit suicide by

accused No. 1. Manisha's father and brother came to know about the

incident at 11:00 am. They immediately came to the spot and they

must be in extreme grief and agony of losing their dear one. The

police were intimated by accused No. 3 - Kiran and, suggestions to

PW7-Amar disclosed that the police forwarded the accused No. 1 for

medical treatment. The inquest panchanama was drawn at 3:00 pm

and spot panchanama was drawn at 3:45 pm. All the relatives of the

accused were very much present there only.

29. The chit (article No. 3) shows allegations against Manisha's

mother and brother. The chit reads as under:

"eh fnus'k dne ej.kk vxksnj dcqy djrks fd fe ekÖ;k iRuh pk LoRrk [kqu
d#u fe vkRegR;k dfjr vkgs- rjh ;kpk tokcnkj o nks "kh ekh lklq o ekk

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Egso.kk es?kjkt tk/ko gs iq.kZ tokcnkj vkgsr- rjh ;k e/;s nql;k dks.kkpkgh
nks'k ukgh-

rlsp eks nksu eqy vkgsr rjh R;kp laxksiu fdj.k dne vkFkok
Hkxokujko fHkejko dne ;kauh djkos-"

30. This chit cannot be said to be a suicide note as, accused

No.1-Dinesh failed in commission of suicide, therefore, it is not

admissible as dying declaration, but the former part shows extra-

judicial confession in writing. The sentence "rjh ;kpk tokcnkj o nks'kh

ekh lklq o ekk Egso.kk es?kjkt tk/ko gs iq.kZ tokcnkj vkgsr-" shows that, such

statement would not have been made by any maternal relatives of the

deceased-Manisha. It was not known to relatives of Manisha that

accused No. 1 - Dinesh had also attempted to commit suicide. It was

extremely difficult for them to concoct such a story and write such a

chit and plant it between 11:00 am to 3:00 pm. It is also found to be

very much similar to the handwriting of accused No. 1-Dinesh.

Considering the fact that this chit was seized from the house at about

3:45 pm and considering the mental condition of father, mother and

brother of deceased-Manisha, it is not possible that they could have

written such a concocted story on a chit and planted the same in

house.

31. The suicide note shows the word "fe" (I) written in the

peculiar style as appears in the application tendered by accused No. 1

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28 APEAL252.2013

- Dinesh to the trial Judge on 09.05.2011 at Exh. 84. This chit shows

the mind of a person committing suicide. He is worried about

upbringing of his children and he suggests names who should do it.

A person indulging in plantation will not be so careful. No other

person had reason to plant such a chit. This chit was seized on the

same day at 3:45 pm.

32. There are following additional circumstances supporting

the factum of murder of Manisha by the accused.

(a) As per Post-mortem notes, Manisha's post-mortem
was conducted on 17.12.2008 at 9:30 a.m. Her small
and large intenstines were partly loaded. She might
have died after six hours of her last meals. The
accused No. 1 was sleeping with her. He did not try
to save her life. He did not take her to any Doctor nor
did he intimate about her death to anybody. On the
contrary, he himself consumed poison. He has no
explanation as to why he attempted to commit
suicide. The evidence of PW7 Amar shows that, he
opened the door in the morning. Thus, there was no
possibility of somebody else coming inside the house
to commit murder of Manisha. Manisha's dead body
was found with gold ornaments and she was not
ravished. Therefore, there cannot be murder for sex
or theft.

(b) There is material to show that accused No. 1 was in
habit of consuming liquor and he used to quarrel with

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Manisha. PW7-Amar can be believed that his father
used to assault his mother. There was motive for
accused No.1 to commit murder. There were property
disputes and strained relations. Manisha had stayed
at her maternal house for 8-10 months in 2006.

When all these circumstances are taken together, we
find that, any reasonable and prudent man will
believe that the chit (
article 13) was written none
other than accused No. 1-Dinesh only. Apart from the
report of Handwriting Expert, the contents of the chit
themselves disclose that it is recorded by accused No.
1 and none else. A document can be proved by the
contents within. In this regard, we rely upon
Mobarak Ali Ahmed v. State of Bombay reported in
AIR 57 SC 857. It is held that, the proof the
genuineness of a document is proof of the authorship
of the document and is proof of a fact li)ke that of any
other fact. The evidence relating thereto may be
direct or circumstantial. It may consist of direct
evidence of a person who saw the document being
written or the signature being affixed. It may be
proof of the handwriting of the contents, or of the
signature, by one of the modes provided in Ss. 45 and
47 of the
Evidence Act. It may also be proved by
internal evidence afforded by the contents of the
document. This last mode of proof by the contents
may be of considerable value where the disputed
document purports to be a link in a chain of
correspondence, some links in which are proved to the
satisfaction of the Court. In such a situation the

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person who is the recipient of the document be it
either a letter or a telegram, would be in a reasonably
good position both with reference to his prior
knowledge of the writing or the signature of the
alleged sender limited though it may be, as also his
knowledge of the subject matter of the chain of
correspondence, to speak to its authorship. In an
appropriate case the court may also be in a position to
judge whether the document constitutes a genuine
link in the chain of correspondence and thus to
determine its authorship.

33. Relying on these facts the above ratio, we disagree with
learned trial Judge to hold that the chit (
article 3) is also proved. The
voluntary written extra-judicial confession is additional factor for us
to confirm the sentence.

34. We agree with learned counsel Mr. Chatterji that the

Investigating Officer has committed so many mistakes. He selected

PW1 PW3 as panchas though they were related to father of

deceased-Manisha. He implicated accused Nos. 2 to 4 with hardly

any material on record and he posed PW7 as eye-witness. However,

we rely upon State of U.P. v. Hari Mohan and others reported in

AIR 2001 SC 142 wherein it is observed as under :

"Before appreciating the circumstantial evidence in the case,
we are at pain to place on record our displeasure regarding
the conduct of the investigation in the case. The investigating
officer appears to have left no stone unturned to help the
accused-respondents. It appears that the valuable evidence,

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31 APEAL252.2013

though available, was not collected apparently for ulterior
purposes. The conduct of the investigating officer SI D.P.
Tiwari (PW7) was even noticed by the trial court. On 30th
October, 1978 while recording his statement, the trial court
observed that "it appears that the IO was negligent and an
irresponsible investigating officer". It was noticed that "the
witness giving aforesaid statement and it appears that he
wants to damage the prosecution case". It is not disputed that
during investigation it had come in evidence that respondent
No.1 was possessed of a licensed gun which was stated to have
been used by him on 15.3.1977, the alleged day of
occurrence, yet no effort was made by the IO to seize the gun
or get it examined by an expert to ascertain whether any shot
was fired from its barrel. He also failed to have taken into
custody the letter written by the deceased for a sufficiently
long period though its mention was made by the PW1 in the
FIR itself. However, the defective investigation cannot be made
a basis for acquitting the accused if despite such defects and
failures of the investigation, a case is made out against all the
accused or anyone of them. It is unfortunate that no action
can be taken against the IO at this stage who, in all
probabilities, must have retired by now".

35. In spite of faulty investigation, we find that the chaff can be

separated from the grain and the facts which are found to be

trustworthy are sufficient to indicate only one possibility that it must

be accused No.1 who has committed murder of deceased-Manisha.

The chain of circumstances is complete and there is additional

circumstance of absence of explanation by the accused and false

explanation that he did not attempt to commit suicide. Taking all the

facts together, we have no hesitation to uphold the findings of

learned trial Judge that accused No. 1 has committed murder of

deceased-Manisha.

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32 APEAL252.2013

36. There is no argument and nothing to be discussed about

quantum of sentence awarded. The appeal deserves to be dismissed

and is accordingly dismissed.

              [ A. M. DHAVALE ]                        [ R. M. BORDE ]
JUDGE JUDGE

sgp

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READ  Bal Mukund Tiwari vs State Of U.P. & Others on 26 July, 2017

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