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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2 APEAL252.2013
. 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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3 APEAL252.2013
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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4 APEAL252.2013
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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5 APEAL252.2013
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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7 APEAL252.2013
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 APEAL252.2013Group - 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
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10 APEAL252.2013
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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11 APEAL252.2013body 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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12 APEAL252.2013ligature 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.::: Uploaded on - 04/07/2017 05/07/2017 00:55:29 :::
13 APEAL252.2013
(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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14 APEAL252.2013Advocate 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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15 APEAL252.2013
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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16 APEAL252.2013residing 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 APEAL252.2013
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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18 APEAL252.2013attempted 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
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19 APEAL252.2013
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
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20 APEAL252.2013brothers 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 APEAL252.2013Govinda 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 APEAL252.2013accused 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 APEAL252.2013panchanama, 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 APEAL252.2013minor 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 APEAL252.2013hit 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::: Uploaded on - 04/07/2017 05/07/2017 00:55:29 :::
27 APEAL252.2013Egso.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::: Uploaded on - 04/07/2017 05/07/2017 00:55:29 :::
29 APEAL252.2013Manisha. 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::: Uploaded on - 04/07/2017 05/07/2017 00:55:29 :::
30 APEAL252.2013person 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,::: Uploaded on - 04/07/2017 05/07/2017 00:55:29 :::
31 APEAL252.2013though 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 JUDGEsgp
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