Santosh Rupa Waghmare vs The State Of Maharashtra & Anr.

JUDGMENT [PER SARANG V. KOTWAL, J.]:

The Appellant has challenged the Judgment and Order dated 5^th July, 2019 passed by the learned Additional Sessions Judge, Pune, in Sessions Case No.406 of 2016. The Appellant was convicted for commission of offence punishable under Sections 302 of the Indian Penal Code (‘IPC’) and was sentenced to suffer rigorous imprisonment for life and to pay fine amount of Rs.5,000/- and in default of payment of fine, to suffer rigorous imprisonment for three months. The Appellant was granted set off under Section 428 of the Criminal Procedure Code.

Heard learned Counsel Mr. Prasad B. Kulkarni for the Appellant and Ms. Supriya Kak, A.P.P for the State.

The prosecution case is that the Appellant was residing with his wife and two daughters. The Appellant and his wife were both labourers and used to sell fish. There used to be frequent quarrels between them. On 2^nd April, 2016, at about 10.15 p.m., there was one such quarrel. The Appellant assaulted the deceased Parbata with a heavy wooden log and strangulated her with a nylon rope thereby committing her murder. One of the neighbours had seen their quarrel. He informed the Appellant’s employer Vijay Lalgude who came at the spot. He saw that the deceased was lying motionless. He informed the police. The Appellant was taken to the Police Station. The FIR was given by Vijay Lalgude. It was registered vide C.R. No.37 of 2016 at Kamshet Police Station at about 01.05 a.m. on 3^rd April, 2016, i.e. the midnight between 2^nd April, 2016 and 3^rd April, 2016. The investigation was carried wooden log and nylon rope stained with blood were recovered from the spot. The clothes of the deceased were sent for chemical analysis. At the conclusion of the investigation, the charge-sheet was filed and the case was committed to the Court of Session.

During trial, the prosecution examined five witnesses. P.W.1 Vijay Lalgude was the first informant. P.W.2 Mithun Waghmare was the neighbour. P.W.3 Ramesh Shinde was the spot pancha P.W.4 Dr. Anil Giri had conducted the post-mortem examination and P.W.5 PI Raosaheb Khedekar was the Investigating Officer.

P.W. 1 Vijay Lalgude was the first informant, but he had not seen the incident. He deposed that he knew the Appellant as the Appellant resided in P.W.1’s agricultural field. The Appellant used to reside with his wife and two daughters. He was doing labour work and also used to sell fish. The Appellant and his wife were addicted to liquor and there used to be frequent quarrels between them. On 2^nd April, 2016, at about 10.15 p.m., P.W. 1 was at the house of one Ramesh Shinde. He got a phone call from P.W.2 Mithun who was his neighbour. Mithun told him that the Appellant had assaulted the Appellant’s wife with a wooden log and she was lying motionless. P.W.1 went to the Appellant's house and found the Appellant's wife Parbata lying motionless. The Appellant was standing there with his minor daughter. The Appellant told him that he and his wife had gone to the market. At that time, Parbata consumed liquor without telling him and she slept without cooking. Therefore, he got angry and hit his wife with a wooden log. P.W.1 then called Parbata’s maternal uncle and told him about the incident. On his advice, P.W.1 took the Appellant to the Police Station and gave his FIR. He identified the FIR produced on record at Exhibit-8. P.W.1 showed the spot to the police. He identified the wooden log produced in the Court.

In the cross-examination, he stated that after receiving the phone call, he reached the spot within 10 to 12 minutes. There were 8 houses near the spot. He had gone to the spot with a friend. Nobody had gathered at the spot. At that time, P.W.2 Mithun was standing near his house. He came to the spot on seeing P.W.1. He admitted that the Appellant’s community people were residing in that area and they were in a habit of consuming liquor. He accepted that there were wooden logs in the Appellant’s house. The minor daughter of the Appellant was also with the Appellant when he was taken to the Police Station.

The FIR is produced on record at Exhibit 8. It corroborates the deposition of P.W.1. The FIR was lodged at 1.05 a.m. in the midnight.

P.W. 2 Mithun Waghmare was another important witness. He was employed with P.W.1 Vijay Lalgude. He also resided in Vijay Lalgude’s field. He deposed that the Appellant resided with his wife and a minor daughter. There used to be frequent quarrels in the Appellant’s house. They used to consume liquor and the Appellant used to suspect his wife's character. On 2^nd April, 2016, the Appellant and the deceased had gone to the market for buying fish. The Appellant’s wife consumed liquor. Therefore, when they returned home, the Appellant started beating his wife. P.W. 2 went to his house to separate them. The Appellant told him not to intervene. At about 9.30 p.m., P.W.2 left from there. At about 10.30 p.m., he saw that the Appellant was crying and he was carrying his minor daughter. The Appellant’s wife was lying motionless. P.W.2 confirmed that she was not moving. He then called P.W.1 Vijay Lalgude who came there. He also confirmed that she was dead. The police and the ambulance came there. The Appellant’s wife’s body was taken to the hospital. One wooden log and one rope were lying in the corner. P.W.2 identified both the articles in the Court. He identified the Appellant in the Court.

In the cross-examination, he could not assign any reason as to why his police statement did not mention that the Appellant and his wife had gone to the fish market and that he tried to intervene in the quarrel and that at 10.30 p.m. he saw that the Appellant was crying and that the deceased lay motionless. These omissions were not put to the Investigating Officer, and hence, those omissions were not proved. He denied the suggestion that when P.W.1 came to the house of the Appellant, she was still alive. He deposed that at least 40 to 50 people lived in that area. He denied the suggestion that since P.W.2’s wife also used to consume liquor, there were frequent quarrels between the deceased and P.W.2’s wife.

P.W.3 Ramesh Shinde was the spot pancha. The spot-cum-seizure panchnama is at Exhibit 12. The spot panchnama was carried out between 7.15 a.m. to 8.30 a.m. on 3^rd April, 2016. He accepted that when the articles were shown to him in the Court, they did not have the label with his signature.

P.W.4 Dr. Anil Giri conducted the postmortem examination of the dead body. He had noticed 22 injuries. They were mostly in the nature of abrasions. However, there was a ligature mark on the neck of the size 6 x 0.5cm. It was caused by hard rope. There was one more ligature mark of the size 18 x 0.5cm. It was 3cm below the mandible. The internal injury showed fracture of posterior horn of thyroid cartilage. The cause of death was ‘Asphyxia due to strangulation’. The injuries were sufficient to cause death in ordinary course of nature. The other injuries were ante-mortem in nature and were possible by the use of wooden log.

In the cross-examination, he admitted that injury nos. 3 to 22 were simple in nature and would not have caused death. Therefore, the two main injuries were in the form of ligature marks on the neck.

P.W.5 PI Raosaheb Khedekar was the Investigating Officer. He conducted the spot panchnama. He seized the weapons -wooden log and nylon rope. He recorded the statements of five witnesses on that day. He arrested the Appellant and seized his clothes. He seized the articles lying at the spot and the blood stained soil. He seized those articles. He also seized the clothes of the deceased. After conclusion of the investigation, he filed the charge-sheet.

The prosecution has also proved the Chemical Analyser's (CA) Report. The report shows that blood was detected on the wooden log, the nylon rope, and the full pant of the Appellant. Bloodstains were also found on the Appellant's shirt; however, the CA report was inconclusive regarding the grouping of the blood on these articles.

The Appellant took up a specific defence in his statement under Section 313 of the Code of Criminal Procedure. According to him, P.W.2 Mithun and his wife had quarrels with the Appellant and his wife. P.W.2 and his wife used to hate the Appellant and his wife. Therefore, the Appellant suspected that P.W.2 and his wife had committed the murder of the deceased, and therefore, they were giving false evidence against him.

The learned Judge, relied on the recovery of the nylon rope, referred to Section 106 of the Indian Evidence Act and based on the evidence of the extra judicial confession, convicted and sentenced the Appellant.

Learned Counsel for the Appellant made the following submissions :

He submitted that the case is based on circumstantial evidence. The chain of circumstance is not complete. Each of the circumstances is not proved beyond reasonable doubt. The circumstances show no intention or motive to commit the murder of his wife. There was no eye-witness to the incident. P.W.2 is not a reliable witness. P.W. 2’s conduct was unnatural. Nobody had seen the nylon rope at the time or before lodging the FIR. P.W.3 accepted that the nylon rope produced in the Court did not have the label with his signature. Most of the injuries were in the nature of abrasions. If there was a quarrel between the Appellant and his wife, he could have beaten her causing abrasions, but there is nothing to connect him with the ligature marks. Though the witnesses have accepted that there were other people of the community residing nearby, no independent witness is examined.

Learned A.P.P. for the Respondent/State made the following submissions:

Learned A.P.P., on the other hand, submitted that the Appellant had given a confession before PW1 which would amount to extra-judicial confession. The other witness PW2 had seen the Appellant with the deceased just before the incident. The prosecution case also relied on the theory of the Appellant having been ‘last seen together’ with the deceased. Under Section 106 of the Indian Evidence Act, the burden was on the Appellant to explain the facts which were within his exclusive knowledge. The dead body was found in his house. Only he could have explained the facts which were within his exclusive knowledge. She, therefore, submitted each of the circumstances is proved beyond reasonable doubt.

We have considered these submissions. As rightly submitted by both the learned Counsel, the main circumstance against the Appellant are as follows:

Last seen together theory.

The extra judicial confession.

The Burden is not discharged under Section 106 of the Indian Evidence Act.

The FIR in this case was lodged by PW1. He did not have any special interest or enmity with the Appellant or the deceased. He has narrated the incident as it has occurred. Since he received the information about the incident, he went to the spot. He saw that the Appellant was standing there. The Appellant himself informed PW1 that he had committed the murder of the deceased. The Chemical Analysis Report further corroborates the prosecution case. In the facts of the present case, the extra-judicial confession constitutes a significant incriminating circumstance. PW1 promptly lodged the First Information Report (FIR) and it lends assurance and corroboration to his deposition.

P.W.2 Mithun is another important witness. Though the learned Counsel for the Appellant submitted that PW2 is not a reliable witness, he was also a natural witness. He had seen the Appellant quarreling with the deceased just before the incident. Therefore, in this case, ‘the last seen together’ theory is also an incriminating circumstance against the Appellant. P.W.2 has given the history of the troubled relationship between the Appellant and the deceased.

P.W.3 Ramesh Shinde was the spot pancha. There is no reason to disbelieve his evidence. He had described that the wooden log and nylon rope found at the spot. The post mortem was conducted at 10.00 a.m. on 3^rd April, 2026 whereas the spot panchnama was conducted at 7.30 a.m. in the morning. Only because the FIR did not mention presence of the nylon rope, it is not possible to ignore the present evidence that the nylon rope was found at the spot. The nylon rope as well as the wooden log showed trace of blood in the chemical analysis report. Though P.W.3 had accepted that the nylon rope did not bear the label with his signature when it was produced in the Court, the important fact remains that the nylon rope was sent for chemical analysis. Therefore, we do not find any spot. The deceased was beaten mercilessly as can be seen by the number of injuries suffered by her which were abrasion in the nature of marks. The Appellant had strangulated her with a nylon rope. Therefore, all the ingredients for commission of offence under Section 300 of the IPC are made out in the present case.

The Appellant used to have frequent quarrels with the deceased. Both of them were addicted to liquor. On the day of the incident, there was a quarrel. P.W.2 tried to intervene in the quarrel but the Appellant had prevented him from intervening. All these facts prove that the Appellant had committed the murder of the deceased as is rightly held by the learned Trial Judge.

Apart from these aspects, the learned A.P.P has rightly submitted that the Appellant had not discharged his burden under Section 106 of the Indian Evidence Act. The dead body was found in the house of the Appellant. The incident had occurred at 10.00 p.m. The Appellant alone was in a position to explain the facts, as they were exclusively within his knowledge. In his explanation, he attempted to support his defence; however, his explanation was not acceptable. There is no material on record to conclude that the defence put forward by the Appellant was probable. The Appellant has failed to discharge his burden under Section 106 of the Indian Evidence Act. Considering all this evidence, we are satisfied that the prosecution has proved its case beyond reasonable doubt. We see no reason to intervene with the impugned Judgment and Order. Hence, the following order: