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Nagpur Bench : Nagpur-vs-Tahsil Telhara, District Akola on 19 October, 2010

Bombay High Court Nagpur Bench : Nagpur-vs-Tahsil Telhara, District Akola on 19 October, 2010
Bench: A. H. Joshi, A. R. Joshi

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH : NAGPUR

Criminal Appeal No. 145 of 2005

Appellant : Ganesh Radhesham Sharma, aged about 28 years, resident of Dahigaon Awtade,

Tahsil Telhara, District Akola

versus

Respondent : The State of Maharashtra Mr Anil Mardikar, Advocate for appellant Ms B.P. Maldhure, Additional Public Prosecutor for State Coram : A. H. Joshi & A. R. Joshi, JJ Date of Reserving the Judgment: 12.10.2010 Date of Pronouncing the Judgment:19.10.2010 Judgment (Per A.R. Joshi, J)

1. Heard rival arguments at length in this appeal which is preferred by appellant/original accused no.1 challenging the judgment and order of conviction passed against him in Sessions Trial No. 213 of 2003. 2

2. The impugned judgment and order was passed on th

14 January 2005 by learned Adhoc Additional Sessions Judge, Akola. In Sessions Trial No. 213 of 2003 present appellant/ original accused no. 1 and other co-accused, his brother Suresh and mother Meerabai were tried for the offences punishable under Sections 302, 498A read with Section 34 of the Indian Penal Code. By the impugned judgment and order, original accused nos. 2 and 3 were acquitted. The State of Maharashtra has not preferred appeal against the said acquittal.

3. Present appellant/accused no. 1 was convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/-, in default, to suffer further rigorous imprisonment for one month. Appellant was also convicted for the offence punishable under Section 498A of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default to suffer further rigorous imprisonment for one month. Substantive sentences were directed to run concurrently. Admittedly, th

since 7 August 2003, the appellant/accused no. 1 is in jail custody till today.

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4. The prosecution case can be narrated in nut- shell as under.

5. Deceased Seema was married to present appellant/ accused no. 1 Ganesh about six years prior to the incident st

of 1 August 2003. Out of wedlock, the couple had one son by name Shantanu. Appellant was serving in Janata Commercial Cooperative Bank as peon. His service was transferred to various places and then again back to Karanja (Lad) where he initially joined the service. On th

or about 12 July 2003, appellant/accused resumed his duty at Karanja (Lad). However, he worked for a day and gave application for leave and left the place of his work. His application for leave was rejected. In the mean-time, Seema, wife of appellant, had been to the house of her brother at Khamgaon and stayed there for about 15/20 days. Apparently, accused Ganesh had a talk with Seema and she asked him to resume duty at Karanja (Lad) to avoid further complications and not to leave the job on that count. That time, appellant/accused represented her that he was at his usual place at Dahigaon Awtade and asked her to come to said place where his mother and brother i.e. co- accused were staying along with him. Seema left her own son with her brother at Khamgaon and went to Dahigaon Awtade and it was decided that she would make a telephone 4

call to her brother on reaching her matrimonial house at Dahigaon. As per the arrangement, though Seema left for Dahigaon Awtade, no telephone call was received by her brother and as such, both the brothers of Seema were rather anxious and worried.

6. Under the above circumstances, both the brothers i.e. Bhikulal (P.W. 7) and Vijaykumar (P.W. 11) decided to verify the factual position to find out the whereabouts of their sister Seema. Bhikulal (P.W. 7) went to Dahigaon Awtade, but could not find anybody in the house i.e. neither Seema nor her in-laws and her husband (appellant). On enquiry with the villagers, it was revealed that there st

was a quarrel on 1 Aujgust 2003 at the house of Seema and she was beaten by appellant (her husband), his mother and brother. It was also revealed to P.W. 7 Bhikulal that she was removed to hospital at Telhara by her husband, present appellant/ accused no. 1. P.W. 7 Bhikulal on reaching Telhara found out that Seema was subsequently removed to Main Hospital at Akola. P.W. 7 Bhikulal informed the situation to his brother P.W. 11 Vijaykumar who was stationed at Khamgaon and called him to Main Hospital, Akola. As per arrangement, both the brothers met at Main Hospital, Akola, but could not find Seema there and it was further revealed that Seema was removed to some private hospital by name Mankar Critical Centre. In the said 5

private hospital, they found Seema. However, they did not find anybody from her in-laws and also did not find appellant/accused any where in the hospital. Both the brothers attended Seema and paid hospital charges for her th

treatment. While in the hospital, on 4 August 2003 in the evening, Seema died and therefore, on the next day th

i.e. on 5 August 2003, P.W.7 Bhikulal lodged complaint with Civil Lines Police Station, Akola against the present appellant, his mother and brother for the offences punishable under Sections 498A and 302 read with Section 34 of the Indian Penal Code for causing harassment, ill- treatment and consequently, causing death of Seema.

7. On the complaint of P.W. 7 Bhikulal, offences were regstered vide Crime No. 0/03 and then it was forwarded to Telhara Police Station and another Crime No. 54/2003 was registered against the appellant and other co- accused.

8. During investigation, the panchanama of the scene of offence was conducted during which some blood stains were found in the verandah of the premises where the appellant was staying with his mother and brother which was the premises of some temple. Statements of various witnesses including neighbours of the appellant 6

were recorded. Accused were put under arrest. Allegedly, at the instance of the present appellant, there was a discovery of one leather belt which was used by the appellant to assault his wife Seema. Post-mortem report was obtained and muddemal articles including alleged weapon of offence i.e. leather belt of appellant were sent for chemical analysis. On completion of investigation, charge-sheet was filed against all the three accused and matter was committed to the Court of Sessions and was tried by learned Adhoc Additional Sessions Judge, Akola.

9. During trial before the learned Adhoc Additional Sessions Judge, out of thirteen witnesses, three were the eye witnesses. However, they turned hostile to the case of prosecution. These witnesses are P.W. 1 Sk Lukman, P.W.2 Abdul Hamid and P.W. 3 Gajanan Tayde, residing in the neighbourhood of the appellant/accused. According to these witnesses, all the accused were residing in the Ram Mandir i.e. the place of their permanent abode at Dahigaon Awtade. Though these witnesses did not support the case of prosecution as to witnessing and hearing the quarrel between the accused persons and deceased Seema, part of their evidence as to the accused persons commonly residing at the temple at Dahigaon Awatade, has been taken shelter of by learned Additional Public Prosecutor. By pointing 7

out this evidence, it is submitted by learned APP that the appellant/accused was definitely at his house and was in the company of his wife deceased Seema on the day when alleged incident of assault took place. At this juncture, it may be mentioned that this submission on behalf of the prosecution is of much significance when the defence of the accused is that of alibi. The defence of alibi shall be dealt in detail hereunder at the appropriate place.

10. Prior to discussing the arguments advanced on behalf of the appellant/accused, certain admitted facts and certain proved facts can be mentioned as under: (i) Appellant/accused brought his wife Seema to the District Hospital, Akola on the st nd

night between 1 and 2 August 2003 and that time, deceased Seema was examined by Dr Nehol Vora (P.W. 12).

(ii) Deceased Seema was got discharged from that District Hospital against medical advice. She was taken by appellant/accused to another hospital by name Mankar Critical Centre at Akola and was examined by P.W. 10 Dr Arti Lokhande. (iii) Deceased Seema, when brought in both the hospitals as mentioned above, was in a critical condition. When patient Seema was 8

nd

brought at Mankar Critical Centre, Akola on 2 August 2003 by appellant/accused, she was th

throughout unconscious. She died on 4 August 2003 in the evening while still in unconscious condition.

(iv) Death of Seema was due to strangulation and there were injuries noticed on her person. Post-mortem was conducted by Dr Ashwinikumar Sapate (P.W. 9). Following injuries were found as mentioned in the post-mortem :

(1) Face and conjunctivae slightly congested. (2) Cyanosis of nail beds present.

(3) ligature marks with dark brown scab on front of neck ½ cm above thyroid cartilage slightly V shaped with its centre in midline and both limbs extending laterally and slightly 1/2

upwards, length of each limb 3 cm, breadth 1 cm, ligature mark is dry and hard.

(4) abrasion with brownish scab on right antero lateral aspect of neck extending down from ligature marks, limited medially on mid line, passing down on right margin of thyroid cartilage of size 7 cm x 9 cm and then obliquely crossing midline to reach on left antero lateral aspect of neck down on two supra-sternal notch, medial and of clavical and upper half of manubrium of size 8 cm x 6 cm (more dark over clarvical and manubrium).

(5) Four skin deep cresentric abrasions with brownish scab, with their curves (convexities) directed downwards and slightloy medially, each 1 cm in length.

(6) One in left sub mandibular area 3 cm in front of left angle of mandible.

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(7) one on right antero lateral aspect of necki, 1/2

1 cm right and 1 cm below right and of ligature marks 1 (a).

(8) 2 cresentric abrasions, ¾ cm apart one below rd

other, 4 cm above medial 1/3 of right clavical.

(9) Contusion bluish 2 x 3 cm over tip of left shoulder.

(10) abrasion with brownish scab over back at level of first thorasic vertibra 3 cm left to midline 3 x 3 cm.

(11) Abrasion with brownish scab over back over left scapular spine 3 cm x 2 cm.

(12) Contusion bluish 6 x 12 cm on right arm lateral aspect in lower half upto elbow. (13) Contusion bluish 2 x 2 cm on right elbow posterior aspect.

(14) Contusion on right forearm bluish 2 x 2 cm on anterior aspect in middle 2 x 2 cm.

(15) three contusions on right forearm lateral rd

aspect one below other in upper 2/3 bluish each 2 x 2 cm.

(16) Contusion on right forearm lateral aspect 3 cm above to wrist 2 x 2 cm bluish.

(17) Contusion on right forearm posterior aspect 6 cm below elbow bluish 2 x 2 cm.

(18) four contusions one below other on left 1/2

forearm lateral aspect in upper half bluish, 1 1/2

x 1 cm each.

(19) abraded contusions with brownish scab 4 x 4 cm in right buttock upper outer quadrant. (20) Contusion bluish 2 x 2 cm on right thigh just below glutel cold.

(21) abraded contusion with brownish scab over 10

dorsum of right second toe over first inter phalangeal joint 1 x 1 cm.

(22) three contusions bluish on left thigh, 1/2 1/2

medial aspect in upper third 1 x 1 cm each. (23) three contusions bluish on left leg anterior aspect just below left knee 1 x 1 cm each.

(v) The cause of injury no. 1 mentioned above was ligature material, cause of injury no. 2 was finger nail and cause of injuries no. 3 to 17 was hard and blunt object and all injuries were antemortem.

(vi) Appellant/accused had pleaded the defence of alibi. To substantiate this defence, appellant did not produce any documentary and/or oral evidence.

(vii) Blood stains were found in the verandah of the house of appellant/accused and it was noticed during the spot panchanama.

11. Bearing in mind the above circumstances, either admitted or proved against the appellant/accused, the arguments advanced on behalf of the appellant are narrated as under :

(i) Independent witnesses P.Ws. 1 to 3 11

turned hostile who are alleged eye witnesses. (ii) P.W.7 and P.W. 11, brothers of deceased Seema are close relatives and interested in decision of the matter. They are not eye witnesses.

(iii) P.W. 12 Dr Vora who examined deceased nd

Seema at District Hospital, Akola on 2 August 2003, gave medical certificate belatedly by 1/2

about 2 months. He gave medical certificate th

(exhibit 56) on 17 October 2003. (iv) Reliance placed by learned trial Court on implication of Sections 113A and 113B of the Evidence Act is misplaced inasmuch as appellant/accused was not charged for the offences punishable under Section 304-B and/or Section 306 of the Indian Penal Code.

(v) Reliance cannot be placed on Section 106 of the Evidence Act as the prosecution failed to establish the case against the appellant/accused and burden under Sections 101 to 104 of the Evidence Act has not been discharged.

12. As against the above arguments on behalf of the appellant, learned Additional Public Prosecutor for State 12

submitted thus :

(i) Defence of alibi raised by the appellant has not been established.

(ii) Presence of appellant/accused at his house at Dahigaon Awtade on the night of incident is established by substantive evidence of P.Ws. 1,2 and 3.

(iii) Conduct of appellant/accused as to he taking his wife Seema to hospital is established by P.W. 4 Ravindra Bharsakle and P.W. 5 Navneet Khetan. P.W. 4 Ravindra is owner of the vehicle and P.W. 5 Navneet is driver of the vehicle in which Seema was initially taken to the Government Hospital at Telhara. At this juncture, it must be mentioned that appellant/accused had accepted the suggestion which was put to him in Question No. 4 while recording his statement under Section 313 Cr.P.C. The said question and answer are reproduced below for the sake of ready reference. Q.No. 4 : It has come in the evidence of P.W. 5 Navneet Khetan that he was driver on the jeep of Barsakle. On 1.8.2003 he took you accused Ganesh and your wife to Telhara hospital from Dahigaon. He left you there and returned back. What you have to say about it ?

Ans : It is correct.

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13. Now, coming back to the arguments advanced on behalf of the appellant/accused, though it is an accepted position that the eye witnesses P.Ws. did not support the case of prosecution, there is substantive evidence that the accused persons were residing at their usual place i.e. temple along with deceased Seema. So far as theory of last-seen-together is concerned, deceased Seema was lastly seen in the custody of the appellant/accused. On this concept of last-seen-together and as to on which party the burden of proof lies, shelter of the following authorities was taken on behalf of the respondent-State : (i)Trimukh Maroti Kirkan v. State of Maharashtra

(2006) 10 SCC 681.

(ii)Dnyaneshwar v. State of Maharashtra

(2007) 10 SCC 445.

14. No doubt, the initial burden to establish the case against the accused always lies on the prosecution. However, when certain circumstances are such, as in the present matter, that the offences are committed in secrecy inside the house, the nature and amount of evidence to be led by the prosecution to establish the charge cannot be of the same degree as is required in any other cases of circumstance. These are the observations made by the Apex Court in paragraph 15 of its judgment in Trimukh v. State 14

of Maharashtra (supra). It is further observed in the said authority that the burden would be of a comparatively lighter character and 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 the accused to offer any explanation. Other observations contained in paragraph 22 of the same citation are reproduced hereunder for the purpose of ready reference :

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 crime….

15. Similar observations are made by Hon ble Apex Court in the second above cited case of Dnyaneshwar v. State of Maharashtra and such observations are contained 15

in paragraph 10 of the said decision and which are squarely applicable for the facts and circumstances of the case at hand. The said observations are :

10. It has not been disputed before us that the deceased was murdered in her

matrimonial home. It is not the case of the appellant that the offence was committed by somebody else. It is also not his case that there was a possibility of an outsider to commit the said offence. One of the circumstances which is relevant is that when the couple was last seen in a premises to which an outsider may not have any access, it is for the husband to explain the ground for unnatural death of his wife….

16. So far as the matter at hand is concerned, though the actual death did not occur at the matrimonial home, there was definitely a deadly assault on Seema where the appellant/accused was also staying and was present and as such, the ratio propounded in the said authorities mentioned above, can be taken in support of the case of prosecution.

17. Counter to the above authorities on the aspect of application or otherwise of Section 106 of the Evidence Act, learned Advocate for the appellant has placed reliance on the following authorities :

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(i) P. Mani v. State of T.N.

(2006) SCC 161.

(ii)Hanuman Kisanrao Kadam v. State of Maharashtra 2006 (1) Bom. C.R. (Cri) 281.

(iii) Sharad Kondiba Walke v. State of Maharashtra 2010 (1) Bom. C.R. 551.

(iv) Murlidhar & ors v. State of Rajasthan (2005) 11 SCC 133.

(v) Sucha Singh v. State of Punjab

(2001) 4 SCC 375.

18. By pointing out the ratio propounded in these citations, it is strongly submitted on behalf of the appellant/accused that Section 106 of the Evidence Act does not postulate any hypothesis as to relieving the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. While further arguing on this point, it is submitted that the initial burden always lies on the prosecution to establish the involvement of the accused in the offence and moreover, when the prosecution has taken steps to establish its case by way of evidence of eye witnesses, then it cannot fall back on Section 106 of the Evidence Act and plead that the burden is on the accused to explain the circumstances which are specially within his knowledge as contemplated by the said Section. Much emphasis was placed on the ratio laid down in Murlidhar & ors v. State of Rajasthan (supra). We have carefully gone through the said authority and the ratio 17

laid down therein. It was a case of abduction and murder and the prosecution proceeded on the footing that there were eye witnesses to the murder and the evidence of such eye witnesses became unreliable. In that matter, the conviction under Section 302 read with Section 34 of the Penal Code was set aside by the Apex Court while commenting that though the High Court found the evidence of eye witnesses unreliable, it erroneously applied Section 106 of the Evidence Act and and further erroneously held that once it was established that the appellants were the abductors and they failed to offer any explanation as to what transpired after abduction, it could be inferred that they had murdered the victim. On the facts, present matter can be distinguished and in our considered view, the observations of the Apex Court on the special circumstances of that case cannot be taken shelter of by the present appellant. In other words, in the matter at hand, during the trial before the Sessions Court itself, all the alleged eye witnesses P.Ws. 1,2 and 3 did not support the case of prosecution and in fact, while passing the impugned judgment and order, reasoning was given by the Sessions Court and also recourse to the provisions of Section 106 of the Evidence Act was taken and that it is not new theory being implemented in this appeal. In other words, the arguments advanced on behalf 18

of the appellant that reliance cannot be placed on Section 106 of the Evidence Act as the prosecution has failed to establish the case against the appellant, cannot sustain. This is more so, in view of the earlier referred admitted and proved facts.

19. So far as another argument on behalf of the appellant as to P.W. 7 Bhikulal and P.W. 11 Vijaykumar being brothers of the deceased, are unworthy of reliance, it must be said that their substantive evidence goes to show the earlier conduct of the appellant/ accused so far as the treatment given to deceased Seema. Moreover, considering their substantive evidence coupled with medical evidence of P.W, 10 Dr Arti Lokhande and P.W. 12 Dr Nehol Vora and cause of death of Seema, there is nothing to take a different view than which is taken by learned Additional Sessions Judge so far as the offences for which the appellant is convicted and more particularly, for the offence punishable under Section 498A of the Indian Penal Code. Needless to mention that Section 498A IPC postulates cruelty and ill-treatment practised on a woman by her husband or his relatives and that has nothing to do with only demand of dowry. By observing this, we have not lost sight of the fact that in the explanation-1 to Section 498A of the Penal Code, one 19

of the aspects of cruelty is harassment of woman with a view to coerce her or any person related to her to meet demand for any property or valuable security etc.

20. Another argument advanced on behalf of the appellant/accused as to P.W. 12 Dr Vora giving medical 1/2

certificate after 2 months and as such, his evidence is not credible, does not gather much weight. After going thrugh the contents of said medical certificate (exhibit 56) and on scrutiny of the substantive evidence of P.W. 12 Dr Vora, it cannot be said that there were any malafides on the part of said medical officer. On this aspect, the reasoning given by learned Additional Sessions Judge while discarding the said argument on behalf of the appellant/ accused, sounds to reason and logic and is acceptable.

21. In view of the above explanation, we hold that the appellant/accused had failed to give explanation as to the injuries to the deceased and her consequential death and that he had also failed to establish alibi, the defence which he has specifically raised. On this aspect of alibi which is propogated by Section 11 of the Evidence Act, it must be said that the alibi is not an exception (special or general) envisaged in the Penal Code or any other law. It is only a rule of evidence recognised by Section 11 of the Evidence Act that facts which are 20

inconsistent with the facts in issue, are relevant as has been observed by the Apex Court in plethora of judgments and mainly in State of Maharashtra v. Narsingrao Gangaram reported in AIR 1984 SC 63 that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of presence of the concerned at the place of occurrence.

22. It is an admitted position as referred above,that appellant/accused had not produced any documentary/oral evidence to further his plea of alibi. Plea of alibi is specifically raised before the Sessions Court by filing written submission in furtherance of the provisions of Section 313 Cr.P. C. Certain relevant portion from the said statement is reproduced below : …. I, the accused no. 1, am serving on the post of peon in the Janta Commercial Cooperative Bank. After serving at Karanja (Lad), I was transferred to Bombay. Thereafter, on 12.7.03 I was again transferred to Karanja. When I was staying at Bombay, there was no reason for my wife to reside at Karanja. However, due to her stubborn nature, she resided at Karanja for 1/2

a period of about 1 years and I also allowed her to stay there itself because she was adamant as a result of which I bore the expenditure for both the places. Since my wife was stubborn and adamant by nature, I was facing financial problems. After I was transferred to Karanja, I was trying for my transfer to Akot which is near my village. 21

But, she was not at all agree with me and therefore, she went to her brother for

staying. Thereafter, I was trying for my transfer to Akot and in anticipation of

transfer to Akot I had telephoned and

informed my wife to change house. On 1.8.03 I was present at Akola upto evening and

after 7.00 o clock in the evening, I went to Akot where I was waiting for my transfer order. At that time, as I received

information at Akot from my mother about the ill- health of my wife, I came to Akola….

23. In view of the above submissions, according st

to appellant/accused, late on that fateful night of 1 August 2003, he came back to his residence and saw the serious condition of his wife Seema. Apart from such statement, there is nothing to substantiate his plea of alibi. As such, we reiterate, as mentioned above, that the accused had failed to establish his plea of alibi. For the reasons detailed above, there is nothing to entertain the present appeal and to view the case differently than what is held by the Adhoc Additional Sessions Judge, Akola.

24. In the result, present appeal has no merit and is accordingly dismissed.

JUDGE. JUDGE. Joshi

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