Bisan vs The State of Maharashtra

B.R. Gavai, J.—Being aggrieved by the judgment and order passed by the learned Sessions Judge, Chandrapur, dated 31/10/2012 in Sessions Case No. 139/2011, thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code sentencing him to suffer imprisonment for life and to pay fine of Rs. 5,000/-, and in default to suffer rigorous imprisonment for six months.

The prosecution story in a nutshell as could be gathered from the material placed on record is thus :

"Accused-Bisen is resident of Gogaon, Tahsil Brahmapuri, District Chandrapur. Deceased-Shashikala was married to the accused. Out of the wedlock, they had three children i.e. one son and two daughters. Elder daughter Niranjana is married. The accused used to suspect the chastity of the deceased and, therefore, she had gone to her mother''s house. She stayed there for 5-6 months. However, the accused went there, convinced about good behaviour and brought her back to his house. On 07/06/2011, he had gone to Gogaon forest with the deceased on a bicycle of his daughter. They had carried an axe and a water bottle with them. On the same day, the accused came Bramhapuri and lodged oral report at Police Station Bramhapuri stating therein that he has killed his wife by throttling her. The said oral report is at Exh. 46. On the basis of such oral report, printed F.I.R. came to be registered, which is at Exh. 47. After the investigation, charge-sheet came to be filed for the offence punishable under Section 302 of the Indian Penal Code in the Court of learned Judicial Magistrate First Class, Bramhapuri. However, since the case was exclusively triable by the Sessions Judge, the same came to be committed to the learned Sessions Judge. The learned Sessions Judge framed the charge. The accused pleaded not guilty and claimed to be tried."

At the conclusion of the trial, the learned Trial Judge passed the order of conviction and sentenced the accused, as aforesaid. Being aggrieved thereby, the present appeal.

Mr. R.P. Thote, learned Counsel appearing on behalf of the appellant submits that the present case is a case based on the circumstantial evidence. He submits that the prosecution has failed to prove incriminating circumstances. He further submits that the self-incriminating F.I.R. cannot be used against the appellant. He, in support of his submissions, relies on the judgment of the Apex Court in the case of Aghnoo Nagesia Vs. State of Bihar, .

Mr. M.K. Pathan, learned Additional Public Prosecutor for the State submits that the prosecution has established each and every circumstances beyond reasonable doubt and has further established the chain of events, which leads to no other conclusion than the guilt of the accused. The learned A.P.P., therefore, submits that the appeal deserves to be dismissed.

Undisputedly, the present case is a case based on circumstantial evidence. As such the prosecution will be required to prove each and every incriminating circumstances beyond reasonable doubt. Not only that, the prosecution also has to establish the chain of events, which leads no other conclusion than the guilt of the accused. In this light, we will examine the evidence on record.

The first circumstance is regarding the accused and the deceased last seen together. The prosecution has examined PW-1 Ajay and PW-2 Sushama, the son and the daughter of the accused respectively in this respect. Though both the witnesses have turned hostile, the prosecution has been successful in getting sufficient material in their cross-examination. PW-1 in his cross-examination has admitted that his father is the only supporter of himself and his sister. He has further admitted in his cross-examination that it was correct to say that when he came back to his house at 06:00 p.m., he made inquiry from Sushama and she told him that at 03:00 p.m. father went to forest with an axe and water bottle along with the mother on a bicycle. He has further admitted that when the police jeep came to his house, he himself, police and the accused went to forest. He has further admitted that his mother was lying dead in the forest.

PW-2 Sushama, the daughter of the deceased and the appellant also admits in her examination-in-chief that her father and mother went to bring firewood at 03:00 p.m. She further admits that her brother Ajay came back to the house at 06:00 p.m. She has further admitted that on the day of incident, her father carried her bicycle to the jungle. It could thus be seen that from the testimony of PW-2, it is clear that the deceased and the appellant went together out of the house at 03:00 p.m. The testimony of PW-2 Sushama is corroborated by the testimony of PW-1 Ajay. It could thus be seen that the prosecution has established beyond reasonable doubt that the deceased and the appellant went together at 03:00 p.m. on a bicycle.

The next circumstance is regarding the discovery of the dead body of the deceased. The appellant himself went to the Police Station Bramhapuri on 07/06/2011 at 17:30 hours and lodged report thereby admitting his guilt. No doubt that the self-incriminating part of the said document cannot be used against the accused. However, the only such part of confession, which is permissible, can be used against the accused. PW-8 Mafil is a panch on memorandum. He has stuck up with the prosecution case. He states that on 07/06/2011, one constable from Mendaki Police Chowky came to his house. He being the son of Police Patil, he was asked about his father. Since, after being informed that his father was not there, the constable informed him that murder of Shashikala was committed. Thereafter, he and the constable went to the house of Shashikala. The daughter of Shashikala was in the house. On being inquired, she told that her parents had gone to Gogaon jungle for collecting firewood. He further stated that he along with the constable and other villagers went to jungle to search Shashikala, but she was not found. Thereafter they came back to village. He further stated that thereafter P.I. Pardeshi came to village along with the accused in the police jeep. Memorandum under Section 27 of the Evidence Act of the accused came to be recorded. He has duly proved the said memorandum. He further states that on the memorandum, the accused led them to jungle. As per his direction, jeep was stopped at Gogaon to Saygaon road. Thereafter on western direction, the vehicle was taken at the place, which was pointed out by the accused, where one bicycle was lying. Thereafter, at a distance of 200 feet under the ''Yen'' tree, the dead body of Shashikala was found. The panchnama was executed there, which is below Exh. 51-A. Though this witness has been thoroughly cross-examined, nothing incriminating has come in his evidence.

The Apex Court in the cases of Aghnoo Nagesia Vs. State of Bihar, and Anuj Kumar Gupta @ Sethi Gupta Vs. State of Bihar, observed that the identity of the place at the instance of the appellant as to where the dead body of the deceased was lying, which was exclusively within the knowledge of the appellant, can be used against the accused in view of the provisions of Section 8 read with Section 27 of the Evidence Act. It could thus be seen that, that part of the admission of the appellant, which has led to the discovery of dead body of the deceased, can be read into evidence. Apart from that, the same is also corroborated by the testimony of PW-1, who admits in his evidence that he himself, police and the accused went to forest and that his mother was lying dead in the forest.

A reference in this respect could be made to the judgment of the Apex Court in the case of Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh,

It can thus be seen that the prosecution has proved that the dead body of the deceased was found between 22:20 to 22:40 on 07/06/2011.

It can thus be seen that the prosecution has proved beyond reasonable doubt that the deceased and appellant had left the house together at 03:00 p.m. and the dead body of the deceased was discovered at the instance of the appellant at 20:40 hours. It can thus be seen that the time gap between the deceased and the appellant being found last seen together and the death of the deceased occurring is so narrow that it will be impossible for anyone else to commit the crime. In any way, the prosecution has to establish the burden in view of the provisions of Section 106 of the Evidence Act. The burden shifted upon the appellant to give the explanation, however, it could be seen that the appellant has not given any explanation and has not discharged the burden, which lies on him.

In the case of circumstantial evidence, the motive would be an important circumstance. PW-2, the daughter of deceased and the appellant, has admitted in her evidence that one year prior to the incident, the deceased was at the house of her grandmother. Not only that, the another daughter PW-6 Niranjana Meshram, though who has also turned hostile, admitted in her cross-examination that her father was of suspicious nature and he used to suspect her mother. She has further admitted that he used to beat her mother by taking suspicion on her character. She has further admitted that her mother used to tolerate the torture. She has further admitted that on this count, her mother went to her parental house and stayed there for 5 to 6 months. She has further admitted that her father has brought her mother back by assuring that henceforth he would not beat her. She has also admitted that there was no change in the behaviour of her father and he used to beat her mother by taking suspicion on her chastity. The testimony of PW-6 is fully corroborated by PW-3 Smt. Parvatabai, the mother of deceased and PW-4 Vilas, the brother of deceased, who deposed on the similar lines.

It could thus be seen that the prosecution has proved beyond reasonable doubt the following incriminating circumstances.

"[1] That the deceased and the appellant were last seen together in the company of each others at 03:00 p.m. on the date of the incident; and

[2] That the discovery of the dead body of deceased at around 20:40 hours of the same day."

The time gap between the deceased and the appellant last seen together and the death being occurring so small that the possibility of any other committing the crime is not possible.

The non-discharge of the burden by the accused under Section 106 of the Evidence Act amounts to the motive that the appellant had suspicion about chastity of the deceased.

We find that the aforesaid circumstances, which are established beyond reasonable doubt, are also interlinked with each others and lead to no other conclusion than the guilt of the accused.

In that view of the matter, the appeal is dismissed.

The fees for the Counsel appointed for the appellant are quantified at Rs. 5,000/- (Rupees Five Thousand Only).