Bombay High Court Shamrao Shripat Pakhare-vs-The State Of Maharashtra Through on 26 June, 2002
Equivalent citations:(2002) 104 BOMLR 258
Author: R Batta
Bench: R Batta, V Kanade
R.K. Batta, J.
1. The Appellant was tried for murder of his wife under Section 302 of the Indian Penal Code as also subjecting her to cruelty under Section 498A of the Indian Penal Code. The appellant, however, has been acquitted of the charge under Section 498A of the Indian Penal Code but, he has been convicted for the murder of his wife under Section 302 of the Indian Penal Code vide Judgment and Order dtd. 11.7.1997 by the learned Additional Sessions Judge, Washim. The prosecution had in all examined 6 witnesses in support of the charge. The Trial Court has accepted the evidence of two witnesses viz. Shankar (P. W. 2) and Sitaram (P. W. 3) as also the medical evidence on the strength of which the conviction has been recorded.
2. Learned Advocate for the appellant urged before us that the prosecution has examined two so-called eye witnesses viz. P. W. 2 Shankar and P. W. 3 Sitaram. According to him, the statement of P. W. 3 Sitaram was recorded only on 23.11.1996 that is to say after about one month of the incident and as such his deposition cannot be relied upon under the circumstances. The learned Advocate for the appellant further urged before us that P. W. 2 Shankar, who had informed the Police Patil (P.W. 1) about the finding of the dead body in the well, did not inform any one including the Police Patil that he had seen the appellant pressing the neck of the deceased and as such his evidence, in the Court, cannot be given credence. He has also urged before us that initially the case was registered as an accidental death and it is in this proceeding that the statement of Shankar (P. W. 2) was recorded by the Police, which cannot be utilised against the accused. Learned Advocate for the appellant also pointed out that the mother of the deceased had, in fact, given report to the Police that since her daughter got fed up on account of the demand of dowry, she committed suicide. In the circumstances, the learned Advocate for the appellant urged that the defence of the appellant which was disclosed immediately by him on the recovery of the dead body that his wife had left at 9.30 p. m. on 21.10.1996, which is reflected in report Exh. 20 lodged by the Police Patil, has to be believed and at any rate reasonable doubt is cast on trip authenticity of the prosecution version, as a result of which, the appellant is entitled to acquittal.
3. Learned A. P. P. on the other hand urged that the Trial Court has correctly assessed and appreciated the evidence on record and there is absolutely no reason to discard the testimony of P. W. 2 Shankar as also P. W. 3 Sitaram who had seen the appellant pressing the neck of his wife as a result of which she died and the medical evidence corroborates the testimony of the said witnesses. She, therefore, contends that there is no merit in the appeal and the appeal be dismissed.
4. The murder in question by throttling took place between 21.10.1996 and 23.10.1996 when the dead body was found in the well. P. W. 2 Shankar stays at thadistance of 50 to 55 ft. from the house of the appellant. The said incident took place on Dasara Day. On that day, at about 8.00 or 8.30 p. m. the appellant had come to his house alongwith his wife. The appellant was under the influence of liquor and was demanding money from him. He gave him Rs. 3/- but his wife was telling him not to demand money from anyone and come to house for taking meal. Thereafter, both of them left his house and he heard shouts of deceased Manda to rescue her and save her. He came out of the house and saw that the appellant was beating Manda. He further said that the appellant forcibly pushed his wife on the ground out of the house and he sat on her chest and pressed her throat. Thereafter, her noise was stopped. Then the appellant lifted her and took her in his house after which there was no noise from the house. On the 3rd day, he noticed the dead body of his wife. According to him, Sitaram had also come to rescue. During the cross-examination, he confirmed that his statement was recorded by the Police on the 3rd day of the incident. The well, from where the dead body was found, was at the distance of 200 to 300 cubits from the house of the appellant. He admitted that he did not state before the Police that accused pushed Sitaram and made him to fall down on the ground. On material particulars of his evidence, his testimony could not be shaken except for bare suggestions which were denied by him. We have absolutely no reason to discard the testimony of P. W. 2 Shankar which not only inspires confidence but stood test of cross-examination. Learned Advocate for the appellant urged that the testimony of this witness should not be believed firstly because his statement was recorded in the accidental death and cannot be used against the appellant. We do not find any merits whatsoever in this submission. The statement was recorded in connection with the death of the deceased and can for all purposes be used. Secondly, he has submitted before us that according to the Police Patil as per report Exh. 20, it was Shankar Waghmare who had informed about the dead body in the well and that in spite of that Shankar (P. W. 2) did not inform the Police Patil of the incident dtd. 21.10.1996. Shankar (P. W. 2) was not at all questioned by the defence on this aspect. Even in the deposition of the Police Patil, there is only reference of one Waghmare and not to P. W. 2 Shankar Waghmare. Besides this, the statement of this witness was recorded by the Police on 23.10.1996 itself wherein he had disclosed that incident dtd. 21.10.1996 which he had seen. The deposition of this witness gets support and corroboration from the medical evidence. P. W. 5 Gajanan Chavan who conducted the post-mortem on the dead body of the deceased Dr. P.W. 5 has stated that the tongue of the deceased had protruded out. There was conjectival hemorrhage and contusion on the midline of neck dimension 5 cms. x 3 cms. On dissection, he found subcutaneous, hematoma and clotted blood and there was a fracture of trachia rings. According to him, injuries were anti-mortem and death was caused due to asphyxia due to throttling. During the cross-examination, he ruled out the possibility of the lady falling down on the water well while fetching water and by the rope hanging her neck. Thus, the evidence of P. W. 2 Shankar which is duly corroborated by the medical evidence of Dr. Gajanan (P. W. 5), is sufficient to bring home the guilt of the appellant even if the testimony of Sitaram (P. W. 3) is discarded on the ground that his statement was recorded by the Police after one month. In fact, P. W. 3 Sitaram had not only corroborated the testimony of P. W. 2 Shankar but he stated that he heard shouts of rescue. According to P. W. 3 Sitaram, the appellant had come to his place under the influence of liquor and demanded Rs. 2/-. At that time, his wife was with him and she asked him not to demand money from other persons and come to the house to take meals. It was thereafter he had heard shouts for rescue and these shouts were of the deceased. Hearing the shouts, he came out of the house. He stays in front of the house of the appellant at the distance of about 50 ft. He saw that the accused had lifted his wife, pushed her on earth and then pressed her neck. He went to rescue her but the appellant pushed him and he fell on the ground. Later the noise of the deceased stopped. The appellant lifted her and took her in the house and on the 3rd day her dead body was found in the well. During the cross-examination, he stated that his statement was recorded by the Police on the – 3rd day of Dasara. He was not at all questioned on this aspect that his statement was recorded on 23.11.96 and even though this fact was stated by the Investigating Officer.
5. The learned Advocate for the appellant had urged before us that the deceased had left the house of the appellant on 21.10.1996 at about 9.30 p. m. and this fact was disclosed by the appellant immediately on recovery of the dead body of his wife from the well to the Police Patil (P. W. 1). In case his wife was missing or had left on 21.10.1996, he did not lodge any report to the Police nor any explanation is given by him as to why he did not lodge any report. Besides this, it is pertinent to note that the appellant in his statement under Section 313 of the Cr. P. C. does not even whisper that his wife had left on 21.10.1996 at about 9.30 p. m. In addition to this, the appellant has given false explanation in his statement under Section 313 of the Cr. P. C. in answer to question No. 12 wherein he has stated that the death of the deceased did not occur due to throttling. The medical evidence on record is crystal clear that the death of the deceased had occurred due to throttling. The false explanation given by the appellant is an additional link to connect the appellant with the crime. The Apex Court in the case of Geetha v. Stale of Karnataka while
dealing with the case of circumstantial evidence found that the answers given by the appellant in her statement under Section 313 of the Cr. P. C. were false and it was observed by the Apex Court that in case of circumstantial evidence this false denial assumes importance as it would supply a missing link in the chain of circumstances. Likewise, in the case of Birbal v. State of Madhya Pradesh the
Apex Court, in case of circumstantial evidence found that false explanation was given by the appellant that he never went to Jungle with the deceased and did not know what had happened to deceased who was last seen together with him and as such it was held that false information was an additional link in the chain of circumstances in completing the chain.
6. In view of the above, we do not find any merit in the appeal and the appeal is hereby rejected