Premdas Ramrao Rathod And Others vs The State Of Maharashtra on 11 April, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.221 OF 2013

Sevak s/o. Ramrao Rathod,
Age : 26 Years, Occ : Agri.,
R/o. Bhategaon, Tq. Kalamnuri,
Dist. Nanded.
[At present appellant is in
jail] APPELLANT
[Ori. Accused No.1]
VERSUS

The State of Maharashtra. RESPONDENT


Mr.V.R.Dhorde, Advocate for Appellant
Mr.S.B.Yawalkar, APP for Respondent/State

WITH
CRIMINAL APPEAL NO.209 OF 2013

1. Premdas s/o. Ramrao Rathod,
Age: 26 Years, Occ : Agri.,
R/o. Bhategaon, Tq.Kalamnuri,
Dist. Nanded.

2. Sow. Kavita Devidas Chavan,
Age: 32 Years, Occ : Household,
R/o. Bhategaon, Tq. Kalamnuri,
Dist. Nanded.

3. Sow. Rekha Premdas Rathod,
Age: 22 Year, Occ : Household,
R/o. Bhategaon, Tq.Kalamnuri,
Dist. Nanded. APPELLANTS
[Ori.Accused Nos.
2 to 4]

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VERSUS

The State of Maharashtra. RESPONDENT


Mr.V.R.Dhorde, Advocate for Appellants
Mr.S.B.Yawalkar, APP for Respondent/State

CORAM: S.S.SHINDE
K.K.SONAWANE,JJ.

Reserved on : 30.03.2017
Pronounced on : 11.04.2017

JUDGMENT: (Per S.S.Shinde, J.):

1] Criminal Appeal No.221/2013 is filed

by appellant i.e. original accused no.1 –

Sevak Ramrao Rathod, and Criminal Appeal

No.209/2013 is filed by appellant nos.1 to 3,

i.e. original accused nos.2 to 4. Both the

Appeals are arising out of the Judgment and

Order dated 20th April, 2013, passed by the

Additional Sessions Judge, Hingoli in

Sessions Trial No.63 of 2011, therefore, same

are heard together and being disposed of by

common judgment and order.

An original accused no.1 – Sevak

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Ramrao Rathod is convicted for the offence

punishable under Section 498-A of the IPC and

sentenced to undergo rigorous imprisonment

for three years and to pay a fine of

Rs.3,000/- [Rs. Three thousands], in default

of payment of fine amount to suffer rigorous

imprisonment for three months. Appellant –

accused No.1 is further convicted for the

offence punishable under Section 302 of the

IPC and sentenced to suffer life imprisonment

and to pay a fine of Rs.10,000/- [Rs. Ten

Thousands], in default of payment of fine

amount, he is to suffer rigorous imprisonment

for six months. Appellant – original accused

no.1 is also convicted for the offence

punishable under Section 201 of the IPC and

sentenced to suffer rigorous imprisonment for

five years and to pay a fine of Rs.5,000/-

[Rs. Five thousands] and in default of

payment of fine amount he is to suffer

rigorous imprisonment for four months.

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Appellants – original accused nos.2

to 4 in Criminal Appeal No.209/2013, are

convicted for the offence punishable under

Section 498-A of the IPC and sentenced to

undergo rigorous imprisonment for three years

and to pay a fine of Rs.3,000/- [Rs.Three

thousands], each in default of payment of

fine amount, accused nos.2 to 4 to suffer

rigorous imprisonment for three months.

2] The prosecution case in nutshell is

as under:

On 14th July, 2011, one Avdhut s/o.

Sheshrao Hake, Police Patil, resident of

Bhategaon, Taluka Kalamnuri visited

Dongarkada Police Outpost Chowki, and

reported orally that, when he was in weekly

market at Waranga, at about 4.00 p.m., he

received telephonic message on his mobile

through the President of Tanta Mukti,

Bhategaon, namely Bhausingh Ratansingh Rathod

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that, Komal wife of Sevak Rathod [original

accused no.1], aged 20 years, found dead in

the well. The dead body is floating on the

water. He went at Bhategaon at about 5.00

p.m. and personally verified that, the dead

body of woman was brought on surface of the

water by means of thorny bushes. He has

stated that an accused no.1 – Sevak Rathod

was not present in his house. He intimated

death of Komal to him. In the aforesaid

background, he requested the concerned Police

Station to enquire / investigate the death of

Komal wife of the appellant – Sevak. The

Incharge Police Station Officer had taken

note of said information in the Station Diary

at Serial No.41 at 10.00 p.m., and Accidental

Death Case No.38/2011, under Section 174 of

the Criminal Procedure Code was registered.

An enquiry was handed over to the Police Head

Constable, B.No.320. The said Police Head

Constable visited the spot. The dead body was

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removed from the well, and inquest panchanama

was prepared. The dead body was referred to

the Medical Officer, Primary Health Centre,

Dongarkada, where the postmortem was

conducted. It was revealed that, the death of

Komal was due to intracraneal hemorrhage due

to head injury, and accordingly, viscera was

preserved.

3] On 15th July, 2011, father of

deceased Komal, namely Tukaram Gangaram

Jadhav, resident of Kanjala Tanda, Taluka

Loha, District Nanded, upon receiving the

telephonic message from the appellant –

Sevak, went to village Bhategaon at about

4.00 p.m. along with his son namely Sanjay,

and witnessed dead body of Komal.

Accordingly, he filed First Information

Report in the Police Station on 15th July,

2011. It was stated in the said First

Information Report that, he is blessed with

two daughters namely Laxmibai and Komal and

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two sons namely Vinayak and Sanjay. The

marriage of Komal was performed with the

appellant – accused no.1, namely Sevak Ramrao

Rathod in the year 2010. The marriage was

settled and was performed, as per the rites

and customs prevailing in their community /

caste. The deceased Komal knew swimming.

After marriage, Komal went to village

Bhategaon and started cohabitation with

appellant – Sevak for a period of one month,

and initially, she was treated well. Later

on, appellant [accused no.1], his brother-in-

law Premdas [accused no.2], his sister Rekha

[accused no.4], and another sister Kavita

[accused no.3] started demanding Rs.50,000/-,

so as to purchase auto-rickshaw. On that

count, Komal was subjected to mental and

physical harassment / cruelty by the afore-

mentioned persons. Even prior to 7 months of

alleged incident, due to mental cruelty and

harassment by the appellant-Sevak and his

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relatives, Komal consumed poison, and she was

hospitalized, however, she survived. It is

further stated that, after aforesaid

incident, one Tukaram Gangaram Jadhav had

convinced appellant-Sevak [accused no.1], and

in-laws of Komal and advised them to treat

Komal properly. Prior to two months of the

incident, Komal consented for cohabitation

with the appellant-Sevak, and accordingly,

Komal was taken by the appellant-Sevak at

Bhategaon. However, appellant-Sevak continued

the harassment and ill-treatment on account

of demand of Rs.50,000/-. The accused in

furtherance of their common intention had

dealt blow on the head of Komal and murdered

her. Thereafter, the dead body was thrown in

the well so as to destroy and cause

disappearance of the evidence.

On the basis of the report lodged by

the father of Komal, note was taken in the

Station diary at about 4.15 on 15th July,

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2011, and accordingly, Crime No.61/2011 came

to be registered for the offence punishable

under Sections 498-A, 304-B, 302 and 201 r/w.

34 of the IPC. The investigation was handed

over to API Mr.Ashok Ghorbande, who caused

investigation, recorded the statements of the

witnesses, arrested the accused, carried out

the spot panchanama, and collected articles

for further investigation. When appellant

[accused no.1] was in Police custody, he made

disclosure statement and pursuant to it,

there was recovery of Article No.5 i.e.

wooden rafter at the instance of the

appellant [accused no.1]. Further

investigation was carried out by the said

Investigation Officer, some articles were

sent to the Chemical Analyzer, and after

investigation, charge-sheet was filed in the

Court of Judicial Magistrate First Class,

Kalamnuri. Since the offences were

exclusively triable by the Judicial

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Magistrate First Class, Kalamnuri, committed

the case to the Court of the Additional

Sessions Judge, Hingoli, the accused pleaded

not guilty. The trial proceeded further, and

after conducting full-fledged trial, the

trial Court convicted and sentenced the

accused in a manner stated in para no.1.

4] The learned counsel appearing for

the appellants submits that, the evidence of

Tukaram Gangaram Jadhav [PW2], Sitaram

Gangaram Jadhav [PW4], and Vinayak Tukaram

Jadhav [PW5], on the issue of alleged ill-

treatment, harassment and cruelty suffers

from the inherent contradictions, omissions,

improvements and exaggeration. The father of

Komal [deceased] even did not remember the

date of marriage between the appellant –

Sevak and Komal [deceased], and therefore,

his evidence cannot be believed. He has

admitted in his evidence that, the appellant

– Sevak possesses 10 acres irrigated land.

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Therefore, an allegation of demand of

Rs.50,000/- by the appellant – Sevak from the

Tukaram Jadhav [PW2], is impossible inasmuch

as the financial position of the appellant –

Sevak vis-a-vis Tukaram Jadhav [PW2], is much

better. It is submitted that, so far

consumption of poison by Komal much prior to

the alleged incident cannot be given

importance inasmuch as the appellant – Sevak

was instrumental to take Komal [deceased] in

the Hospital, and she was properly treated

and then discharged from the Hospital. The

trial Court has unnecessarily given

importance to an earlier incident of the

consumption of poison by Komal [deceased].

In respect of said incident, Tukaram Jadhav

[PW2] did not file any complaint. It has come

in the evidence of Tukaram Jadhav [PW2] that,

after said incident Komal [deceased] went to

the matrimonial home for cohabitation with

the appellant – Sevak, and they were residing

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happily thereafter. He invites our attention

to the evidence of Sitaram Jadhav [PW4] and

submits that, if his evidence is read in its

entirety, it can be safely gathered that, he

had no knowledge of day to day life of Komal.

He has stated in his evidence that, Komal was

Hospitalized for 10-15 days, when she

consumed poison. As a matter of fact she was

discharged from the Hospital within four

days. He submits that, so far other co-

accused are concerned, they have neither any

role to play in the alleged commission of

offence nor they were lastly residing with

the appellant – Sevak and Komal [deceased].

Even one of the co-accused, who is a sister

of the appellant – Sevak, is married prior to

the marriage of the appellant – Sevak with

Komal [deceased]. The learned counsel also

vehemently criticized the evidence of

Vinayak Jadhav [PW5] and submits that, even

Vinayak Jadhav [PW5] was not aware about day

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to day life of Komal. In his evidence, he has

made statements contrary to the fact

situation, and therefore, the evidence of

Tukaram Jadhav [PW2], Sitaram Jadhav [PW4]

and Vinayak Jadhav [PW5], on an alleged ill-

treatment and harassment to the Komal

[deceased], deserves to be disbelieved.

5] He further submits that, if the

evidence of Dr.Dwarkadas Madhavrao Nakhate

[PW8] is considered in its entirety, it does

not indicate that, the death of Komal was

homicidal. He submits that, Dr.Dwarkadas

Nakhate [PW8] was not qualified inasmuch as

he is possessing qualification of B.A. M.S.

Dr.Dwarkadas Nakhate [PW8], during his cross

examination, stated that, he knows the diadem

test. In that test, Microscopic examination

of tissues like brain, liver, bone marrow is

undertaken and the said test is helpful in

confirming as to the cause of death due to

drowning. He did not carry such test. The

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learned counsel for the appellants invites

our attention to the classification of

drowning from the book titled a ‘Medical

Jurisprudence and Toxicology’ written by

Prof.T.D.Dogra, and submits that drowning

might be of four types, which are wet or

primary drowning, dry drowning, secondary

drowning, near drowning or post immersion

syndrome and immersion syndrome, hydrocution

or submersion inhibition. He submits that,

depending upon the type of water body within

which drowning occurs, the same can be

further classified. He submits that, in case

of dry drowning like in the present case,

water does not enter the lungs. Death results

from immediate sustained laryngeal spasm

following entry of water into the nasopharynx

or larynx. A mucous plug might at times be

found in the trachea of such victims. He

submits that, Dr.Dwarkadas Nakhate [PW8] has

admitted in his cross examination that,

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contusion is a simple injury, and it is

correct that, there is infiltration of blood

in vessels. Heamaotoma is a collection of

blood. He admitted that, injury no.1 in

column no.19 is a corresponding injury in

column no.17. Such injury may be caused in

accident fall and when such part of body

comes in contact of hard object. He submits

that, Dr.Nakhate [PW8] has not given definite

finding that, when the death of Komal

occurred. The learned counsel vehemently

submitted that, the prosecution has utterly

failed to establish that, whether the death

of Komal was homicidal, suicidal or

accidental. He submits that, death of Komal

was accidental. He invites our attention to

the statements of the appellant-Sevak in his

defence and submits that, though probable

defence was taken by the appellant-Sevak, the

same has not been considered at all by the

trial Court. He submits that, the evidence of

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the defence witnesses have not been discussed

at all by the trial Court. The appellant –

Sevak has probabilized the defence, and

therefore, the benefit of doubt deserves to

be extended to the appellant-Sevak.

6] It is submitted that, Komal was not

happy with the marriage with appellant-Sevak

and she consumed poison in earlier point of

time. The appellant-Sevak was having 10 acres

irrigated land and father of Komal was having

only 4 acres of dry land, and the financial

position of father of Komal was very

precarious and at any point of time, it

cannot be imagined that, the appellant –

Sevak had made demand of Rs.50,000/- to the

parents of the Komal [deceased]. The

appellant – Sevak had no license to drive

the Auto-rickshaw, and therefore, there was

no question of demand of Rs.50,000/- from the

parents of Komal and harassment of the Komal.

Komal did not complain before anybody about

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the harassment being caused to her, or

Tukaram Jadhav [PW2] also did not complain,

and therefore said conduct of both speaks

volume. The appellant-Sevak was residing

separately along with Komal and on the date

of incident, he had gone to bring the labour

charges from Shamrao Munaji Sontakke [DW2]

to adjoining village Mahalinga. Said Shamrao

[DW2] in his evidence, has stated that, the

appellant-Sevak came to him in the morning

hours on the date of incident.

7] It is submitted that, there is no

evidence on record to show that the appellant

– Sevak was seen along with the said Komal in

the house, and had caused any hurt to her and

thereafter removed her body and thrown the

same in the well, more particularly, when the

real maternal aunt Shashikalabai of said

Komal is residing in adjoining hut, and who

has also categorically stated in her evidence

that the said Komal has not meted out any

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harassment at the hands of the appellant –

Sevak and his family members. It is submitted

that, the Additional Sessions Judge has

erroneously held that, the death is homicidal

and not accidental when the pot for carrying

water was found near the well, and

thereafter, search for the said Komal was

made by using hook and rope inside the well,

and her body was found in the well in

presence of the villagers. It is submitted

that, the evidence of Dr.Nakhate [PW8], is

not sufficient to come to the conclusion that

the death is not due to drowning more

specifically in absence of the diadem test.

It is submitted that, the Additional Sessions

Judge has erroneously held that, the

prosecution has proved that, the death is

homicidal and not accidental by ignoring the

evidence of spot panchanama, evidence of

Shashikalabai [DW1], real aunt of the

deceased Komal and Shamrao Sontakke [DW2]

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from village Mahalinga.

8] It is submitted that, there is

sufficient evidence on record to suggest

that, the said death is accidental more

particularly when the appellant-Sevak along

with others have searched the said Komal and

the said Komal was not found. It is only

after pot was found her search carried out

in the well water and her body was taken out

in presence of the villagers. It is submitted

that, the father of Komal had never

complained about consumption of poison by her

daughter in earlier point of time. As a

matter of fact, Komal was admitted in the

Hospital and after treatment, she had been

brought to home. It is submitted that, after

the appellant-Sevak returned to his native

place with Komal from the house of parents of

said Komal, the appellant-Sevak started

residing separately with the Komal, and

therefore, there was no question of demand of

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Rs.50,000/- by the accused nos.2 to 4. It is

submitted that, the chain of circumstances

namely that the said Komal was found in the

well and was not seen with the appellant-

Sevak at any point of time prior thereto, and

the pot was found near the well clearly

indicates that the death is accidental and

not homicidal.

9] It is submitted that, in view of the

cogent evidence on record that the real aunt

of the said Komal is staying nearby hut of

the appellant, and she had taken search of

the said Komal with the appellant-Sevak,

clearly shows that, the appellant-Sevak was

not in the house at the time when the

incident has taken place. Hence, the

appellant-Sevak cannot be held guilty for the

alleged incident. It is submitted that, there

is no evidence to show that the appellant –

Sevak had caused injury to said Komal

elsewhere and then thrown the body of said

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Komal in the well so as to destroy the

evidence, and therefore, the conviction under

Section 201 of the Indian Penal Code is

erroneous. It is submitted that, in view of

the serious omissions and contradictions in

the evidence of Dr.Nakhate [PW8], it will

have to be held that, the said Komal died

accidental death.

10] The learned counsel appearing for

the appellants invites our attention to the

judgment of the Supreme Court in the case of

Harendra Narain Singh etc. Vs. State of

Bihar1 and submits that, if case resting on

circumstantial evidence and if two views are

possible one pointing to guilt and another to

innocence of accused, the Court should adopt

latter view. He also invites our attention to

the ratio laid down in the case of Sujit

Biswas Vs. State of Assam2 and submits that,

it is observed by the Supreme Court in the
1 AIR 1991 SC 1842
2 [2013] 12 SCC 406

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said judgment that, in a case of

circumstantial evidence, it is essential to

decide, whether or not chain of circumstances

is complete. No matter how weak evidence of

prosecution may be, it is the duty of the

court to examine accused, and to seek his

explanation as regards incriminating material

that has surfaced against him. He also

pressed into service judgment of the Supreme

Court in the case of Dhal Singh Dewangan Vs.

State of Chhattisgarh, in Criminal Appeal

Nos.162-163 of 2014, decided on 23rd

September, 2016, and submits that, in the

facts of that case, the prosecution did not

bring on record evidence why the appellant

was lying unconscious on the scene of

occurrence. That case was also examined on

the basis of circumstantial evidence and

benefit of doubt was given to the appellant,

though he was found in the house in

unconscious condition holding knife in his

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hand. The learned counsel further pressed

into service judgment in the case of Jumni

and others Vs. State of Haryana3 and submits

that, the accused has to discharge burden by

probabilizing the defence, and he is not

supposed to discharge the burden like the

prosecution. In short his submission is that

the defence taken by the accused needs to be

probabilized by him by preponderance of

probabilities and not by bringing on record

strict proof like the prosecution has to

prove its case.

11] The learned counsel for the

appellants further submits that, so far as

other accused are concerned, they were not

residing with accused – Sevak when the

incident had occurred. One of the accused,

sister of Sevak got married, even prior to

marriage of Sevak with Komal. The evidence of

the prosecution witnesses of alleged

3 [2014] 11 SCC 355

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harassment and cruel treatment to the Komal,

so as to attract the ingredients of Section

498A of the Indian Penal Code, as against the

accused is too short, general and vague in

nature. Therefore, their conviction for the

offence punishable under Section 498-A

deserves to be set aside.

12] The learned counsel appearing for

the appellants, without prejudice to the

arguments already advanced, by way of

alternate submission prays that, the case of

accused – Sevak may be considered under one

of the exception under Section 300 of the

Indian Penal Code, and he may be released

forthwith.

13] The learned APP appearing for the

respondent – State invites our attention to

the findings recorded by the trial Court and

also the evidence of the prosecution

witnesses and submits that, the trial Court

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has recorded findings, which are consistent

with the evidence brought on record. He

invites our attention to the evidence of

Dr.Nakhate [PW8] and submits that, he has

given clear findings that, the death of Komal

was homicidal. He also invites our attention

to the evidence of Tukaram Jadhav [PW2],

Sitaram Jadhav [PW4] and Vinayak Jadhav [PW5]

and submits that, through the said witnesses

the prosecution has proved beyond reasonable

doubt that there was constant ill-treatment

and cruelty at the hands of the appellants to

Komal for bringing Rs.50,000/- to purchase

auto-rickshaw. He further submits that, the

defence of the appellant-Sevak that, he was

not present in the house during the morning

hours on the date of incident, has not been

probabilized by him. Admittedly, the

appellant – Sevak possessed 10 acres

irrigated land, and therefore, his contention

that he went to collect money / amount

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towards labour charges from Shamrao [DW2]

cannot be believed. It is submitted that,

appellant-Sevak was obliged to offer his

explanation in view of the mandate of Section

106 of the Evidence Act, since he along with

Komal were only present in the hut/house. It

is admitted position that, none else than

appellant Sevak and Komal were residing in

the hut in the field owned by the father of

the appellant-Sevak. It is submitted that, it

is improbable that, when the appellant –

Sevak noticed water pot lying nearby the

well, instead of taking search of Komal there

itself or in the well, he coolly went to the

village and then along with villagers came in

search of Komal. It is submitted that, the

prosecution has proved beyond reasonable

doubt that, the appellant – Sevak assaulted

Komal on occipital parietal region and she

sustained injury and after she died,

appellant – Sevak throw her dead body in the

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well. Therefore, the appellant – Sevak was

obliged to offer his explanation under which

circumstances Komal died. It is submitted

that, subsequent conduct of the appellant-

Sevak after the incident and taking

improbable defence, can also be added as

additional circumstance in the chain of

circumstance. The appellant – Sevak deserves

to be given maximum punishment for killing

his wife Komal, who was in the helpless

situation at the time of incident, inasmuch

as only appellant – Sevak and his wife were

residing in the hut situate in the land owned

by father of the Sevak. It is submitted that,

the prosecution has brought on record the

distance of the well from which dead body of

Komal was recovered, which is situate

approximately on 100 meters distance from the

hut of the appellant – Sevak. The learned APP

in support of his aforesaid submissions

placed reliance on the decisions, in the

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cases of Sachin Vyankatrao Thosare Vs. State

of Maharashtra4, Trimukh Maroti Kirkar Vs.

State of Maharashtra5, Ganeshlal Vs. State of

Maharashtra6, State of Karnataka Vs.

Suvarnamma and another7 and Sahebrao Mohan

Berad Vs. State of Maharashtra8.

14] We have heard the learned counsel

appearing for the appellants and the learned

APP appearing for the respondent-State at

length. With their able assistance, we have

carefully perused and scrutinized the entire

evidence, and also the judgments cited across

the Bar. At the outset, it would be useful to

reproduce herein below para 31 from the

judgment of the Supreme Court in the case of

Krishnegowda Ors. Vs. State of Karnataka by

Arkalgud Police, in Criminal Appeal No.635 of

2006 with Criminal Appeal No.1067 of 2006,

4 2017 All MR [Cri.] 256
5 [2006] 10 SCC 681
6 [1992] 3 SCC 106
7 [2015] 1 SCC 323
8 [2011] 4 SCC 249

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decided on 28th March, 2017, as a guiding

factor:

31. The Court should always make an
endeavor to find the truth. A
criminal offence is not only an
offence against an individual but
also against the society. There
would be failure of justice if
innocent man is punished. The Court
should be able to perceive both
sides i.e. the prosecution as well
as the defence and in our considered
opinion the judgment of the High
Court suffers from several defects
as discussed in the preceding
paragraphs.

15] Since the case in hand is based upon

the circumstantial evidence, it would be

gainful to reproduce herein below the

parameters / guiding factors laid down by the

Supreme Court, while appreciating the

circumstantial evidence, in the case of

Hanuman Govind Nargundkar and another Vs.

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State of M.P.9, which are consistently

followed in subsequent pronouncements by the

Supreme Court and the various High Courts. In

the said judgment, it is held thus:

It is well to remember that in cases
where the evidence is of a
circumstantial nature, the
circumstances from which the
conclusion of guilt is to be drawn
should in the first instance be
fully established, and all the facts
so established should be consistent
only with the hypothesis of the
guilt of the accused. Again, the
circumstances should be of a
conclusive nature and tendency and
they should be such as to exclude
every hypothesis but the one
proposed to be proved. In other
words, there must be a chain of
evidence so far complete as not to
leave any reasonable ground for a
conclusion consistent with the
innocence of the accused and it must
be such as to show that within all

9 AIR 1952 SC 343

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human probability the act must have
been done by the accused.

16] In the light of the observations of

the Supreme court reproduced herein above, in

the case of Krishnegowda ors [supra] and in

the case of Hanuman Govind Nargundkar

[supra], we proceed to discuss the evidence.

17] The prosecution examined Ramesh

Venkatrao Sontakke [PW6]. He stated in his

examination in chief that Tukaram [PW2] came

to the Police Station on the date of incident

and gave oral complaint. The said complaint

was written down and contents of the said FIR

were read over to Tukaram Jadhav [PW2].

Tukaram Jadhav [PW2] read contents of the FIR

and then signed on the said FIR. His

evidence remained unshattered during the

cross examination.

18] The prosecution examined Tukaram

Gangaram Jadhav [PW2], father of deceased

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Komal, who lodged First Information Report in

Akhada Balapur Police Station on 15th July,

2011. In his deposition, he stated that,

Komal was his daughter and her marriage was

performed prior to two years with the

appellant – Sevak at village Kanjala, Taluka

Loha, District Nanded. After marriage, Komal

went to her in-laws for cohabitation with

Sevak. His daughter informed him two months

after marriage that, demand of Rs.50,000/-

was made by the appellants. Komal told him

that, appellants used to beat her on the

count of non fulfillment of demand of

Rs.50,000/-. He further stated that, Komal

returned to matrimonial home, prior to and

earlier 7 months of the date of incident,

Komal consumed poison because of insistence

by the accused to bring money. She was

Hospitalized in Sanjivani Hospital, Nanded.

He paid hospital bill for the treatment of

Komal. She was brought to his house. She was

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there for 15 days. Thereafter, appellant –

Sevak came to his place. There was discussion

between himself and Sevak, and he convinced

Sevak not to further harass Komal, and then

Sevak took her to matrimonial home.

Thereafter, Komal and Sevak started residing

separately in the hut situate in the field.

It is stated that, on the date of

incident he came to know from appellant –

Sevak that, Komal fell in well, and upon

receiving said information, he himself along

with his son, wife and other few villagers

went to Bhategaon. They reached Bhategaon at

7.00 p.m. Thereafter, they went in the field

of accused. They saw dead body of Komal in

the water inside the well. The dead body was

removed from the well. They saw injury to her

head and bleeding from the right ear. The

dead body was removed from the field and

postmortem was done at village Dongarkada.

The dead body was again brought to the

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Bhategaon and last rites were performed at

Bhategaon. He went to Akhada Balapur Police

Station and lodged the First Information

Report. He further stated that, appellant –

Sevak and others have killed his daughter and

threw her dead body in the well. Her daughter

Komal was acquainted with the swimming.

19] In his cross examination, he fairly

stated that, his relations with

Shashikalabai, resident of Bhategaon are

cordial. He further stated that, sister of

the appellant Sevak namely Kavita was already

married prior to marriage of Komal. Accused

Prem and his wife were staying in house

situated on Tanda. He reiterated that Komal

consumed poison 7 months prior to the date of

incident. An earlier to the date of incident,

because of the tension on account of illegal

demand of Rs.50,000/- by the appellants; she

consumed poison. He specifically stated that,

Sevak – appellant personally demanded him

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amount of Rs.50,000/- to purchase auto-

rickshaw, on 2-4 occasions. It appears that,

since he is rustic villager, he was not able

to tell correct time and date of demand made

by the accused Sevak. He stated that, he

possessed four acres land, and Sevak’s family

hold 10 acres of agricultural land. His land

is dry and land of the accused Sevak is

irrigated and Sevak is financially in a

better position compared to him. He stated

that, before they reached at Bhategaon,

Police Patil of village Bhategaon, had given

report about death of his daughter to Police

Station, Akhada Balapur.

If the evidence of Tukaram Jadhav

[PW2] is considered in its entirety, he has

fairly stated about specific demand by the

appellant – Sevak, and also fact that the

appellant – Sevak possessed 10 acres

irrigated land and he is financially sound

compared to him. There is no reason to doubt

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his evidence. Merely because Sevak possessed

10 acres irrigated land, and therefore, there

was no possibility of demand of Rs.50,000/-

by Sevak from the Tukaram Jadhav [PW2], has

no any basis inasmuch as it depends upon the

grid of money and mentality of a individual

and also at the relevant time, whether Sevak

had sufficient money with him.

20] As already observed, Tukaram Jadhav

[PW2] has specifically stated about illegal

and specific demand of Rs.50,000/- by the

appellant – Sevak with him at least on 2-4

times, also gets corroboration and support

from the evidence of Sitaram Jadhav [PW4] and

also Vinayak Jadhav [PW5]. Sitaram Jadhav

[PW4] and Vinayak Jadhav [PW5] both have

stated in their evidence that, Komal informed

them that the amount of Rs.50,000/- was

demanded by appellant – Sevak to purchase

auto-rickshaw and on that count, she was

subjected to cruel treatment. He has also

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stated about earlier incident of consuming

poison by Komal. It is true that, he has

stated that, the incident of consumption of

poison was of 3 months prior to the incident,

however, like Tukaram Jadhav [PW2] Sitaram

Jadhav [PW4], he is also rustic villager, and

therefore, minor discrepancies in their

evidence needs to be ignored. He has also

stated that, Tukaram Jadhav [PW2] paid bill

of Sanjivani Hospital when Komal was admitted

earlier for treatment due to consumption of

poison by her. Vinayak Jadhav [PW5], has also

stated in his evidence that, for the first

time one and half month after marriage of her

sister, Sevak started demanding of

Rs.50,000/- for purchasing auto-rickshaw. He

further stated that, Komal told him that she

was beaten by appellant – Sevak on account of

non fulfillment of demand of Rs.50,000/- for

purchasing auto by appellant – Sevak. It is

true that, this witness has fairly stated

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that, their financial position was not sound.

Therefore, his evidence to the extent of

illegal demand of Rs.50,000/- by accused

Sevak, deserves acceptance. Therefore, so far

as illegal demand of Rs.50,000/- for

purchasing auto and on non fulfillment of

that demand, accused Sevak assaulted Komal

has been stated by Tukaram Jadhav [PW2],

Sitaram Jadhav [PW4] and Vinayak Jadhav

[PW5]. There is no reason to disbelieve their

evidence. However, on close scrutiny of the

evidence of aforesaid witnesses, it is

abundantly clear that they have not

specifically stated about demand or ill-

treatment or beating by other accused on

account of non-fulfillment of the illegal

demand of Rs.50,000/-. Therefore, we find

considerable force in the argument of the

learned counsel appearing for the appellants

in Criminal Appeal No.209/2013 filed by the

other accused except accused Sevak that, the

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benefit of doubt deserves to be extended in

their favour.

21] In order to appreciate contention of

the learned counsel appearing for the

appellant – Sevak that the death was

accidental and was not homicidal. It is

necessary to discuss the evidence of

Dr.Nakhate [PW8] in his evidence, he stated

that, he has completed B.A.M.S. course in the

year 1984-85. He joined the service in the

year 1987 as Medical Officer. Prior to the

postmortem of Komal, he might have performed

30 to 35 postmortems on dead body. The dead

body of a woman Komal Sevak Rathod was

brought in Primary Health Centre, Dongarkada

by S.S. Mundhe, Police Nayak. He received the

dead body at about 9.30 a.m. on 15th July,

2011. He stated that, Dr.Bothikar accompanied

with him, while performing postmortem on dead

body. They commenced the postmortem on such

dead body at 9.45 a.m. and completed at 11.45

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a.m. The dead body was female reneging

between 20 years. The dead body worn sari

showing signs of clothes soaked with water.

There were mud stains and blood stains on the

cloth and sari. There were tattoo marks on

the fore arms. On external examination of

body, the temperature was cold. The rigor

mortis on lower leg. On the flank part of

both sides of the body, there were signs of

decomposition found. Features were natural,

both eyes were partially closed. Tongue

inside mouth, teeth intact, oozing of blood

from right ear was noticed. Cutes anserina

present over hand [palm] and sole. There

were no injury on external genital organs.

Both upper limbs were flexed are over chest

and were on chest. Both lower limbs were

straight. The injuries noticed by him were,

contusion over right side of occipital

parietal region, 2 ½ cm. x 2 cm., teeth in

tact, nose, upper and lower lips and right

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and left lobs of ear, shoutes injury marks

done by water animals. Near right elbow joint

anterior side shows two injury marks done by

water animals, size 1 ½ cm. x 1 cm. and 1 cm.

x 1 cm. Nos.2 and 3 injuries are whitish in

colour and having oozing of whitish fluid.

Injury no.1 anti-mortem, injury nos.2 and 3

are post mortem.

22] Haemotoma under scalp, size 2 cm. x

1 ½ cm. There was no evidence of fracture of

skull. There was evidence of intra cranial

hemorrhage. Walls of ribs and cartilage were

intact, pleura, normal, larynx, trachea and

there is no froath in trachea. The right and

left lungs were normal, no froath on squeeze

lungs. Wall intact, peritoneum intact,

buckles cavity fore tongue, inside mouth,

ocsophageus, – NAD Stomach and its contents

approximately 50 ml. Liquid foot. Small

itenstine and its contents were NAD. Liver

and gall bladder were pale. Pan-crease pale.

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Spleen pale.

23] Kidney pale, bladder empty, organs

of generation, uterus normal. Viscera

preserved for chemical analysis. Bottle no.1

contains stomach and its contents, parts of

intestine and its contains. Bottle no. 2

pieces of lung, liver, spleen, kidney, spinal

cord nor open.

24] He express final opinion that, there

was intra carinal hemorrhage due to head

injury, and accordingly, he issued

provisional P.M. report. Viscera was

preserved. He did not notice sign of drowning

as to the dead body of patient brought to

him. He did not notice signs of drowning like

froath from nose and mouth. Odematons lungs,

froath on squeezing on the part of lungs, no

froath in trachea. Those were vital signs of

drowning. There was no water in stomach. The

contusion was on the back side of head on

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occipital parietal region. Internal injury on

opening skull, brain hemorrhage. Therefore,

he concluded that death was because of head

injury. The patient might have consumed meals

earlier 10 to 12 hours of death, evident from

the signs of fluid in abdomen. Head injury

was possible by hard and blunt object.

Article no.5 i.e. wooden rafter was shown to

him and he stated that, the said article may

cause such injury.

25] It is true that, in his cross

examination he stated that, he knows the

diadem test. In that test, microscopic

examination of tissues like brain, liver,

bone marrow can be conducted and he did not

carry such test. However, fact remains that

he did express opinion that, due to head

injury Komal died and injuries were ante-

mortem in nature. Merely because he did not

conduct diadem test can not nullify his

clear, cogent and positive evidence that the

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death of Komal was due to head injury, and

injuries were ante-mortem.

The submission of the learned

counsel appearing for the appellant relying

upon the classification of drowning, and

particularly theory of dry drowning stated in

a book ‘Medical Jurisprudence and Toxicology’

[Authored by Prof. T.D.Dogra] is concerned,

Dr.Nakhate [PW8] is a Medical Officer, who is

expert in the field, and performed 30 to 35

postmortems prior to performing postmortem of

Komal. Therefore, the defence counsel should

have illicited reply / answer from him, by

asking him in his cross examination,

classification of drowning, and also what is

mean by wet or primary drowning and dry

drowning etc. Therefore, in absence of such

exercise by the defence before the trial

Court, it is not possible to appreciate the

aforesaid contentions of the counsel for the

appellants that, there was dry drowning

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wherein water does not enter the lungs. Death

results from immediate sustained laryngeal

following entry of water into the nasopharynx

or larynx. A mucous plug might at times be

found in the trachea of such victims.

26] Upon considering the evidence of

Dr.Nakhate [PW8], we are of the considered

view that, the prosecution has proved that

death of Komal was homicidal.

27] The Supreme Court in the case of

Mufabhai Nagarbhai Raval Vs. State of

Gujarat10, held as follows:

…It is needless to say that the
doctor who has examined the deceased
and conducted the post-mortem is the
only competent witness to speak
about the nature of injuries and the
cause of death. Unless there is
something inherently defective the
court cannot substitute its opinion
for that of the doctor.

10 [1992] 4 SCC 69

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28] The prosecution examined Dr.Rajesh

Ramanand Garje [PW7] to prove that earlier 7

months of the incident, Komal consumed poison

i.e. Rogor and she was treated in private

Medical Hospital of Dr.Garje [PW7]. In his

evidence, he stated that history reveals that

the patient consumed Rogor at 11.00 a.m. at

vilage Bhategaon. It appears that, accused

Sevak admitted Komal and told history to

Dr.Garje [PW7]. It is further stated by

Dr. Garje [PW7] that the patient was brought

at Hospital in unconscious state. Therefore,

immediately treatment was given to her. He

further stated that, patient was given

gastric wash, patient started on Atropin PAM

and supportive treatment also started. She

was stabilized two to three days, the patient

improved clinically within two to three days

after admission. Endotracheel tube was

removed after three days, patient was

conscious, oriented and vitals were stable.

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He further stated that, on 6th April, 2010,

the patient was discharged from his Hospital

at 8.00 p.m.

The fact that Komal was treated by

Dr.Garje [PW7] is not in dispute. The

incident of consumption of poison i.e. Rogor

is not denied by the appellants. Appellant –

Sevak in his statement recorded under Section

313 of Criminal Procedure Code admitted that,

Komal consumed poison and was shifted to

Sanjivani Hospital, Nanded. He further stated

that, he bore expenses for medical treatment

of Komal in Sanjivani Hospital, Nanded. He

also admitted that, after discharge from the

Hospital, Komal stayed for 15 days with her

parents. Therefore, it is admitted position

that, 7 months earlier to the incident, Komal

consumed poison and she was treated in the

Hospital as indoor patient. Therefore, the

statement of Tukaram Jadhav [PW2] that on

account of non-fulfillment of demand of Rs.

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50,000/-, Komal was ill-treated and she

consumed poison due to harassment and cruel

treatment given by the accused – Sevak and

she was unconscious and treated in Sanjivani

Hospital, gets fortified from the discussion

herein above.

29] The prosecution examined Namdeo

Tulshiram Pandhare [PW1]. It appears that,

at the relevant time, he was working as

Police Constable in Akhada Balapur Police

Station. He was carrier of the viscera

bottels from muddemal room to the C.A. for

analysis. It appears that, he adhered to the

procedure and after taking precaution, said

viscera was carried in bottles to the office

of the Chemical Analyzer for analysis.

30] Ramrao Baddu Jadhav [PW3] is the

witness in whose presence wooden rafter was

recovered pursuant to the memorandum of

statement of the accused – Sevak, when he was

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in police custody. He has supported

prosecution case that in his presence article

5 was seized on disclosure statement made by

the accused Sevak. He specifically denied

suggestion in the cross examination that,

Sevak did not make any disclosure staement.

31] Ashok Yayatrao Ghorband [PW9]

working as API from 09.06.2010 to 10th June,

2012 in Police Station Akhada Balapur was the

Investigation Officer, who conducted the

investigation of Crime No.61/2011 registered

by Tukaram Jadhav [PW2]. He has narrated

details in his examination in chief about the

manner in which the investigation was carried

out, pursuant to disclosure statement by the

accused Sevak wooden rafter was recovered.

The said wooden rafter is recovered from the

hut of appellant Sevak wherein he himself and

deceased Komal was residing prior to the

death of Komal. He has also conducted spot

panchanama. In his cross examination, he

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stated that, initially A.D. was registered.

However, Tukaram Jadhav [PW2] lodged the

First Information Report and thereafter law

was set in motion and investigation was

carried out. He stated in his cross

examination that, the distance of hut and

well was near about 100 meters. Other details

also he has stated in his cross examination.

32] Upon considering the evidence of the

prosecution witness in its entirety, the

prosecution has unequivocally proved that

there was ill-treatment and harassment at the

hands of the appellant – Sevak to the Komal

on account of non fulfillment of illegal

demand of Rs.50,000/- to purchase auto-

rickshaw. There is clear and cogent evidence

of Tukaram Jadhav [PW2], which gets support

from the evidence of Sitaram Jadhav [PW4] and

Vinayak Jadhav [PW5]. The prosecution by

examining Dr.Garje [PW7] has proved that,

nearby 7 months earlier / prior to the

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incident of death of Komal, Komal consumed

poison and she was treated in Sanjivani

Hospital and this fact is not denied by the

appellant – Sevak.

33] The prosecution has also proved

through the evidence of Tukaram Jadhav [PW2],

Sitaram Jadhav [PW4] and Vinayak Jadhav [PW5]

that, there was ill-treatment and harassment

to Komal and therefore she consumed poison

i.e. Rogor, as it is evident from the

evidence of Tukaram Jadhav [PW2]. The

prosecution has proved by examining

Dr.Nakhate [PW8] that, death of Komal was

homicidal. The injuries sustained by Komal

were ante-mortem and death was homicidal.

34] The prosecution has brought on

record motive of the appellant – Sevak for

commission of offence. However, failure of

the prosecution to prove motive is not fatal

in law in each and every case based upon the

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circumstantial evidence.

The Supreme Court in the case of

Mulakh Raj and others Vs. Satish Kumar and

other11 wherein in para 17 it is held, as

under:

“17. The question then is, who is
the author of the murder? The
contention of Sri Lalit is that the
respondent had no motive and the
High Court found as a fact that the
evidence is not sufficient to
establish motive. The case is based
on circumstantial evidence and
motive being absent, the
prosecution failed to establish this
important link in the chain of
circumstances to connect the
accused. We find no force in the
contention. Undoubtedly in cases of
circumstantial evidences motive
bears important significance. Motive
always locks up in the mind of the
accused and some time it is
difficult to unlock. People do not

11 (1992) 3 SCC 43

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act wholly without motive. The
failure to discover the motive of an
offence does not signify its non-
existence. The failure to prove
motive is not fatal as a matter of
law. Proof of motive is never an
indispensable for conviction. When
facts are clear it is immaterial
that no motive has been proved.
Therefore, absence of proof of
motive does not break the link in
the chain of circumstances
connecting the accused with the
crime, nor militates against the
prosecution case.

[Underlines supplied]

The Supreme Court in the case of

Trimukh Maroti Kirkan Vs. State of

Maharashtra12 in para nos.13, 14, 15 and 22

held thus:

13. The demand for dowry or
money from the parents of the bride
has shown a phenomenal increase in
the last few years. Cases are
12 [2006] 10 SCC 681

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frequently coming before the Courts,
where the husband or in-laws have
gone to the extent of killing the
bride if the demand is not met.
These crimes are generally committed
in complete secrecy inside the house
and it becomes very difficult for
the prosecution to lead evidence. No
member of the family, even if he is
a witness of the crime, would come
forward to depose against another
family member. The neighbours, whose
evidence may be of some assistance,
are generally reluctant to depose in
Court as they want to keep aloof and
do not want to antagonize a
neighbourhood family. The parents or
other family members of the bride
being away from the scene of
commission of crime are not in a
position to give direct evidence
which may inculpate the real accused
except regarding the demand of money
or dowry and harassment caused to
the bride. But, it does not mean
that a crime committed in secrecy or
inside the house should go
unpunished.

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14. If an offence takes place
inside the privacy of a house and in
such circumstances where the
assailants have all the opportunity
to plan and commit the offence at
the time and in circumstances of
their choice, it will be extremely
difficult for the prosecution to
lead evidence to establish the guilt
of the accused if the strict
principle of circumstantial
evidence, as noticed above, is
insisted upon by the Courts. A judge
does not preside over a criminal
trial merely to see that no innocent
man is punished. A judge also
presides to see that a guilty man
does not escape. Both are public
duties. (See Stirland v. Director of
Public Prosecution13 quoted with
approval by Arijit Pasayat, J. in
State of Punjab vs. Karnail Singh14.

The law does not enjoin a duty on
the prosecution to lead evidence of
such character which is almost
impossible to be led or at any rate

13 1944 AC 315
14 [2003] 11 SCC 271

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extremely difficult to be led. The
duty on the prosecution is to lead
such evidence which it is capable of
leading, having regard to the facts
and circumstances of the case. Here
it is necessary to keep in mind
Section 106 of the Evidence Act
which says that when any fact is
especially within the knowledge of
any person, the burden of proving
that fact is upon him. Illustration

(b) appended to this section throws
some light on the content and scope
of this provision and it reads:

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

[Underlines added]

15. 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

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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.

In para 22, it is further held thus:

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 placed in the dwelling

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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. In Nika Ram v. State of H.P.15
it was observed that the fact that
the accused alone was with his wife
in the house when she was murdered
there with ‘khokhri’ and the fact
that the relations of the accused
with her were strained would, in the
absence of any cogent explanation by
him, point to his guilt. In
Ganeshlal v. State of Maharashtra16

the appellant was prosecuted for the
murder of his wife which took place
inside his house. It was observed
that when the death had occurred in
his custody, the appellant is under
an obligation to give a plausible
explanation for the cause of her
death in his statement under Section
15
AIR 1972 SC 2077
16 [1992] 3 SCC 106

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313 Cr.P.C. The mere denial of the
prosecution case coupled with
absence of any explanation were held
to be inconsistent with the
innocence of the accused, but
consistent with the hypothesis that
the appellant is a prime accused in
the commission of murder of his
wife. In State of U.P. v. Dr.
Ravindra Prakash Mittal17
the medical
evidence disclosed that the wife
died of strangulation during late
night hours or early morning and her
body was set on fire after
sprinkling kerosene. The defence of
the husband was that wife had
committed suicide by burning herself
and that he was not at home at that
time. The letters written by the
wife to her relatives showed that
the husband ill-treated her and
their relations were strained and
further the evidence showed that
both of them were in one room in the
night. It was held that the chain of
circumstances was complete and it
was the husband who committed the

17 AIR 1992 SC 2045

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murder of his wife by strangulation
and accordingly this Court reversed
the judgment of the High Court
acquitting the accused and convicted
him under Section 302 IPC. In State
of T.N. v. Rajendran18
the wife was
found dead in a hut which had caught
fire. The evidence showed that the
accused and his wife were seen
together in the hut at about 9.00
p.m. and the accused came out in the
morning through the roof when the
hut had caught fire. His explanation
was that it was a case of accidental
fire which resulted in the death of
his wife and a daughter. The medical
evidence showed that the wife died
due to asphyxia as a result of
strangulation and not on account of
burn injuries. It was held that
there cannot be any hesitation to
come to the conclusion that it was
the accused (husband) who was the
perpetrator of the crime.

The Supreme Court in the case of

Ganeshlal Vs. State of Maharashtra19 in para 9
18 [1999] 8 SCC 679
19 [1992] 3 SCC 106

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has been held thus:

9. It is next contended that the
parents, sister, maternal uncle and
uncle’s daughter, A-1, A-3 to A-6
having been acquitted the appellant
cannot be convicted under Section
302
I.P.C. The question therefore,
is whether it is the appellant
alone who has committed the offence
or parents, sister and two others
also are participis criminis. It is
true as contended for the
appellant that the evidence on
record is not sufficient to arrive
at an immediate motive to commit the
crime and the case depends on
circumstantial evidence. But in
circumstantial evidence also when
the facts are clear it is

immaterial that no motive has

been

proved.

Men
do not act wholly

without motive. Failure to discover
the motive of the offence does not
signify the non-existence of the
crime. The failure to discover
motive by appropriate clinching
evidence may be a weakness in the

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proof of the prosecution case, but
it is not necessarily fatal as a
matter of law. Proof of motive is
never as indispensable factor for
conviction. In Atley v. State of
U.P
.20, this court held that where
there is clear evidence that the
person has committed the offence, it
is immaterial where no motive for
commission of the crime has been
shown. Therefore, even in the case
of circumstantial evidence, absence
of motive which may be one of the
strongest links to connect the
chain would not necessarily
become fatal provided the other
circumstances would complete the
chain and connect the accused with
the commission of the offence,
leaving no room for reasonable
doubt, even from the proved
circumstances. Therefore, the
evidence of PW-4 and PW-5 partly
with regard to the motive may not
be sufficient to bring home the
strong immediate motive. But the
evidence of PW-5, Vanmala, that on

20 AIR 1955 SC 807

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the fateful day, she went to her
sister’s house situated at a
distance of 40 to 50 ft. from
her house and that she extended
invitation to Kanchana and
Kanchana’s mother-in-law to attend
the “Teej” ceremony in her house was
not disputed in the cross
examination. It was around 10.00 to
10.15 a.m. It is not necessary to
dilate the conversation for refusal
to attend the ceremony but
suffice to state that the
appellant was present at that time.
When Vanmala came down from the
first floor, she heard exchange
of words and somebody being beaten.
After extending invitation to some
people when she returned home, her
maid servant, PW-9, after some time
came and told her that her sister
died. From her evidence in this
behalf, there is no contradiction,
but there is an omission of hearing
exchange of words and somebody being
beaten, in her statement recorded
under Section 161 CrPC. Giving
allowance to omit this part of the

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evidence i.e. exchange of words and
hearing the beating of somebody,the
fact remains that at 10.30 a.m.
Kanchana died. It is established
from evidence of Vanmala, PW.5 that

she saw her sister
Kanchana alive

at about 10 to 10.15 a.m. in

the

company of her husband, in-laws,
sister-in-law in the house and
within few minutes thereafter she

was reported
dead while in the

house solely occupied by the accused
appellant and his family members.

[Underlines added]

35] The next question is who is author

of death of deceased Komal? The appellant –

Sevak in his statement recorded under Section

313 of Criminal Procedure Code in reply to

the question no.6 i.e., It is in evidence of

prosecution that Komal cohabited with accused

No.1 by staying in the house at Bhategaon,

wherein you all accused were staying in same

house. What have you to say? stated thus:

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Ans: It is not correct. Myself and
Komal were living in field.

Therefore, it is admitted position

that much prior to the incident appellant –

Sevak started residing with only Komal in hut

situate in agricultural field in the name of

his father, and none else. Appellant – Sevak

has also admitted in his statement under

Section 313 that earlier Komal consumed

poison i.e. Rogor and she was treated in

Sanjivani Hopsital, Nanded.

He filed separate written statement

in his defence. The said statement reads

thus:

e;r dksey gh ekh iRuh gksrh] eh etqjhps dke
djrks- ?kVusP;k fno’kh eh eks etqjhps iSls vk.k.;k dkeh
eykaMh xkaoh ldkGhp xsyks gksrks o 11-30 oktrk ekb;k
‘ksrkrhy ksiMhoj ijr vkyks- R;kosGsl ekb;k ksiMhrhy
nSuafnu dkes dsysyh eyk vkGyh- ijarw ekh iRuh eyk
vkGwu vkyh ukgh- R;keqGs eh eks dkdk vkf.k dkdq
‘ks”khdykckbZ th dh] e;r dkseyph eko’kh ns[khy vkgs-
R;kaP;k ?kjh tkoqu dksey vkyh dk; Eg.kwu pkSd’kh dsyh-

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R;kuarj eh eks lkljs rqdkjke xaxkjke tk/ko ;kaP;kdMs
ns[khy ekh iRuh dkatkGk rkaMk frP;k ekgsjh vkyh
dk; ;k ckcr ns[khy pkSd’kh dsyh- eh ekb;k iRuhpk ‘kks/k
?ksr vlrkaukp eyk ‘ksrkrhy foghjh toG ik.kh Hkj.;kph
dG’kh vkGyh- R;keqGs eh o ‘ks”khdykckbZ nks?ks feGwu
xkaokrhy fHkdqflax jruflax jkBksM ¼raVkeqDrh v/;{k½
;kaP;kdMs tkoqu ?kVus ckcr ekfgrh fnyh-

R;kuarj vkEgh lokZauh foghjhoj ;smu foghjhrhy
ik.;kr xG Vkdwu dkseypk ‘kks/k ?ks.;kpk iz;Ru dsyk-
rsOgk R;k xGkl vMdqu dksey gh ik.;koj vkyh- ;k
ckcrph ekghrh eh eks lkl;kl Qksu}kjs fnyh- R;kosGsl
vkEgh lokZauh vls Bjfoys dh] eks lkljs ;sbZ i;Zar foghjh
ckgsj izsr dkko;kps ukgh- eks lkljs vkY;kuarj ekb;k
xkohp ekb;k iRuhoj vaR;laLdkj dj.;kr vkys- ekb;k
iRuhpk e`R;q gk foghjhr vi?kkrkus iMwup kysyk vkgs-

[The translation of aforesaid

statement by Official Translator in

English, is as under:

Deceased Komal was my wife, I
do labour work. On the day of
incident I had been to village
Malandi in the morning for bringing
my wages. And came back to the hut
in my field at 11.30. At that time
I noticed that day to day work was

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done in my hut. But my wife was not
seen and found there. Therefore I
had gone to the house of my uncle
and aunt Shashikalabai who is also
maternal aunt of Komal and enquired
whereabouts of Komal. Thereafter I
have also made enquiry with my
father-in-law Tukaram Gangaram
Jadhav about my wife at her parental
village Kanjala Tanda. While taking
search of my wife I found water pot
(Kalashi) near the well in my field.
Therefore I and Shashikalabai both
went to the village and met
Bhikusingh Ratansingh Rathod (Tanta-

mukti Adhyaksha) and gave
information about the incident.

Thereafter we all came to the
well and by putting anchor in the
water of well we tried to take
search of Komal. At that time
Komal’s body was hooked and came out
from water. I gave information about
this to my father-in-law by phone.
At that time we all have decided
that till my father-in-law do not
come there, we should not take out

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the dead body out of well. After
arrival of my father-in-law the
funeral of my wife has been
undertaken at my village. Death of
my wife has been caused due to
falling of her in the well
accidentally.

Date : 01/01/2013. Deponant
Sd/-

Sevak Ramrao Rathod.]

36] Upon careful perusal of the contents

of the afore-mentioned written statement

filed by the appellant – Sevak, it appears

that, he admitted that, Komal is his wife.

On the date of incident in the morning, he

went to vilage Malandi for bringing his wages

and came back to the hut in his field at

11.30 wherein he was residing with Komal, he

did not notice his wife in the hut.

Therefore, he went to the house of his uncle

and aunt Shashikalabai who is also maternal

aunt of Komal and enquired whereabouts of

Komal. Thereafter, he has also made enquiry

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with his father in law namely Tukaram

Gangaram Jadhav about his wife at her

parental village Kanjala Tanda. While taking

search of his wife, he found water pot

[Kalashi] near the well in his field.

Therefore, he and Shashikalabai both went to

the village and met Bhikusingh Ratansingh

Rathod [President of Tanta Mukti] and gave

information about the incident.

Thereafter, he along with Bhikusingh

and other villagers came to the said well,

and by putting anchor in the water of well,

they tried to take search of Komal and

accordingly after said search, they saw dead

body of Komal floating on water. Sevak gave

information about this to his father in law

by telephonic message. At that time, they all

decided that till his father in law arrives

there, dead body of Komal should not be taken

out of well. After arrival of his father in

law, dead body of Komal was taken out of

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well. The funeral of his wife has been

performed at his village.

37] The appellant – Sevak in his defence

examined Shashikshalabai Baburao Ade [DW1],

Shamrao Munjaji Sontakke [DW2], Bhalusing

Ratansingh Rathod [DW3] and Govind Pandurang

Kavle [DW4]. Shashikalabai Baburao Ade [DW1],

stated that, she along with Sevak went to the

President of Tanta Mukti of village

Bhategaon. Thereafter, Sevak told his father

in law and mother in law about the incident.

She stated her relationship with the

appellant – Sevak and also with Komal.

The important defence witness for the

appellant is Shamrao Munjaji Sontakke [DW2].

Upon perusal of the statement of Shamrao

Munjaji Sontakke [DW2], recorded in English,

if compared with his statement recorded in

Marathi i.e. in vernacular language, we find

some inconsistency / difference in his

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version, and therefore, we decided to rely

upon the statement recorded in Marathi.

Shamrao [DW2] stated that, he know Sevak and

Komal. Since Sevak was working with him, his

wife Komal used to meet him. In July, 2010,

Sevak worked for one day on his agricultural

field. His labour charges were fixed Rs.

500/-. He did not give amount of Rs.500/- to

him on same day. He told Sevak that he will

pay the said amount to Sevak on Wednesday.

Sevak came on Wednesday at about 8.00 a.m.

and he gave him amount. The distance between

Bhategaon and Malandi is 5 kilo meters.

During his cross examination, he stated that,

he cannot tell the date on which date Sevak

came and collected the amount.

If the statement of Shamrao [DW2] is

considered in its entirety, it clearly

emerges that Sevak went to him to collect the

amount towards labour charges for the work

which was done in July, 2010. Therefore, it

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appears from his statement that, for the said

amount of Rs.500/- which was agreed to be

paid to Sevak in July, 2010, Sevak went to

collect the amount after almost one year.

Secondly, it is admitted position that on the

date of incident, there was Thursday.

However, this witness stated that Sevak came

on Wednesday. Therefore, it clearly reveals

that appellant – Sevak took false plea and

did not probabilize his defence, on the

contrary he made attempt to hide from truth.

Though it is contended by the learned counsel

appearing for the appellant that the trial

Court has not considered the evidence of

defence witnesses, upon careful perusal of

the impugned judgment, we find discussion in

para 17 and 25 by the trial Court about the

statements of the defence witnesses. However,

the trial Court did not accept the defence

taken by the accused. There was opportunity

to the appellant – Sevak to discharge onus

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under Section 106 of the Indian Evidence Act,

when the prosecution has proved that the

appellant – Sevak and Komal were only two

persons, who were residing in the hut, which

is situate 100 meters away from the well from

which the dead body of Komal was recovered.

Instead of placing on record probable and

true explanation, regarding under which

circumstances Komal died, and what

transpired during the relevant night and

next day morning on the date of incident,

when all those facts were within the special

knowledge of the appellant Sevak, instead of

discharging said onus by the preponderance of

probabilities, appellant Sevak, took

improbable defence, which gets falsified in

the light of the discussion hereinabove. As

already observed, Dr.Nakhate [PW8] has

categorically stated in his evidence that,

injury sustained on the person of deceased

Komal were ante-mortem and death was

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homicidal. It is also stated by the

Dr.Nakhate [PW8] that, on the basis of the

contents of stomach it may be death early in

the morning. Accused Sevak has stated that,

he left the house in the morning on the date

of incident. As already observed, appellant

Sevak took false defence, and therefore his

subsequent conduct after incident can also be

added as an additional circumstance in the

chain of circumstance.

38] It has come on record that, there is

electric pump installed on well, and

therefore there was no reason for Komal to go

inside the well to fetch the water.

Secondly, it has come on record in the

evidence of Tukaram Jadhav [PW2] that, Komal

knew swimming. It has also come on record

that, well is of 20 meters in height and 10

feet water level was available. Since Komal

knew swimming, the possibility of accidental

death is completedly ruled out.

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It has come on record that, accused

no.1 Sevak is in possession of 10 acres

irrigated land and he claims to be

financially well off. Therefore, it is

difficult to believe and digest that, Sevak

went to do the labour work in the

agricultural field of Shamrao Sontakke [DW2],

that too, by travelling 5 kilo meters

distance from Bhategaon.

39] In the light of discussion in the

foregoing paragraphs the following facts are

emerged on record, and duly proved by the

prosecution:-

1] The marriage of accused no.1 Sevak
with Komal was solemnized in the
month of July, 2010.

2] The evidence of Tukaram Jadhav
[PW2], Sitaram Jadhav [PW4] and
Vinayak Jadhav [PW5] clearly
suggests ill-treatment and
harassment mentally as well as

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physically at the hands of appellant

– accused no.1 Sevak to Komal on
account of non-fulfillment of demand
of RS.50,000/- to purchase auto-
rickshaw.

3] At about 7 months prior to the date
of incident, Komal consumed poison
i.e. Rogor and she became
unconscious. She was taken to
Sanjivani Hospital and treated
there, thereafter she was
discharged. Tukaram Jadhav [PW2] in
his evidence stated that, on account
of harassment and ill-treatment at
the hands of the appellant – accused
no.1 Sevak she consumed poison.

4] When the accused no.1 Sevak went to
fetch Komal after aforesaid incident
of consumption of poison, Tukaram
Jadhav [PW2] gave understanding to
the accused no.1 appellant not to
harass Komal and on that oral
agreement of understanding, Tukaram
Jadhav [PW2] sent Komal with accused
no.1 Sevak.

5] Admittedly, appellant [accused no.1]

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– Sevak and Komal went to reside in
the hut situate in their
agricultural field. In the said
hut, accused no.1 Sevak and Komal
were only residing, and none else.

6] The well from which the dead body of
Komal was recovered is 100 meters
away from the said hut. It has come
on record that the well was located
in survey no.30 of village
Bhategaon, it was in the field of
accused.

7] Dr.Nakhate [PW8] deposed that,
injuries on head of Komal were ante-
mortem in nature and cause of death
is because of head injury and death
was homicidal and on the basis of
the contents of the stomach,
Dr.Nakhate [PW8] stated that, there
may be death early in the morning.

8] The defence taken by the accused no.

1 – Sevak that, he went on the date
of incident in the morning to
collect the money / amount towards
labour charges from Shamrao Sontakke
[DW2] stands falsified.

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9] The appellant accused no.1 – Sevak
did not offer probable explanation
how and under which circumstances
Komal died since those facts were
within the special knowledge of
Sevak.

10] As stated by Sevak, when he left in
the morning from the hut everything
was all right. He did not raise plea
that Komal was not in the hut during
that night or even during morning
hours when he left the hut; on the
contrary he stated that, when he
returned to hut at about 11.30 a.m.,
he saw some house work is
completed / done, during the period
he left the hut and returned back.

11] When he noticed pot near well,
naturally in all human probabilities
reaction could have been immediately
take search of Komal, by whatever
means to find out her whereabouts
inside the said well. However, in
such circumstances, instead of
taking search there itself nearby
well or inside the well, he coolly
proceed to village.

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12] The conduct of the appellant –

accused no.1 – Sevak to proceed
coolly to village, coming with the
villagers or contacting specifically
to the Chairman of Tanta Mukti,
brining them and then taking search
of Komal reflects his state of mind.
Even after the dead body was taken
out on surface of water, he decided
to keep said dead body in the well
till arrival of Tukaram Jadhav
[PW2].

13] There are also no circumstance on
record suggesting that, anybody else
had enmity with deceased Komal who
could have committed her murder.

14] The recovery of rafter on the basis
of an information given by the
appellant – Sevak and at his behest
rafter was recovered from the house.

15] It has come on record that there was
electric pump installed on the well.
Therefore, there was no reason for
Komal to enter inside the well to
fetch the water, and that too
keeping water pot outside the well.

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16] It has come on record that, Komal
knew swimming.

17] Komal died within two years from the
date of her marriage with accused
no.1.

The discussion in the foregoing

paragraphs only lead to the conclusion that,

the appellant – Sevak assaulted / given blows

on the head of Komal and as a result Komal

died, and in order to cause disappearance of

the evidence and for saving himself from

clutches of Law, appellant – Sevak threw dead

body of Komal in the well.

40] Therefore, inevitable conclusion is

that appeal filed by the appellant – Sevak

shall fail. We are in agreement with the

findings recorded by the trial Court and

conclusions reached, in respect of accused

no.1 – Sevak. The findings recorded by the

trial Court are fully in consonance with the

evidence brought on record, and there is no

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perversity as such to the extent of appellant

– Sevak.

41] So far as appellants – original

accused nos. 2 to 4 in Criminal Appeal No.

209/2013 are concerned, as already discussed

while discussing the evidence of Tukaram

Jadhav [PW2], Sitaram Jadhav [PW4] and

Vinayak Jadhav [PW5], that their evidence and

also other evidence brought on record by the

prosecution is too short to uphold the

conviction of those accused under Section

498A of the Indian Penal Code. It has come on

record that on the date of incident or even

few months prior to it, original accused nos.

2 to 4, were neither residing with accused

no.1 Sevak and Komal, nor any specific

allegations are made against them during said

period. In that view of the matter, benefit

of doubt deserves to be given to the said

appellants [original accused nos. 2 to 4] in

Criminal Appeal No.209/2013.

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42] In the result Criminal Appeal No.

209/2013 to the extent of appellants therein

stands allowed. Their conviction for the

offences punishable under Section 498-A of

the Indian Penal Code stands quashed and set

aside. They are already enlarged on bail

during the pendency of Appeal.

43] Criminal Appeal No.221/2013, filed

by the appellant – Sevak [accused no.1]

stands dismissed, thereby confirming the

judgment and order passed by the Additional

Sessions Judge, Hingoli, dated 20th April,

2013 in Sessions Trial No.63 of 2011.

Needless to observe that, he should be given

set off under Section 428 of the Criminal

Procedure Code.

[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC

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