AI Structured Summary
Not yet generated for this judgment
Judgment
Sangitrao S. Patil, J. - I have had the advantage of going through the judgment being passed by the Hon''ble Shri Justice S.S. Shinde. So far as the conviction of the appellant is concerned, I express my concurrence thereto. However, with deep respect, I could not persuade myself to concur with the views of the Hon''ble Shri Justice S.S. Shinde, on the nature of the offence established against the appellant and the quantum of punishment. Therefore, I pass this separate judgment.
Being aggrieved by the judgment and order dated 21.03.2013 passed in Sessions Case No.277 of 2012 (Old Sessions Case No.319/2009) by the learned Additional Sessions Judge, Vaijapur, District Aurangabad, whereby the appellant (original accused no.3) has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/- in default to suffer simple imprisonment for the period of six months, the present appeal has been filed.
The above numbered Sessions Case was instituted against the present appellant as well as his parents (Accused Nos.1 and 2) and two sisters (Accused Nos.4 and 5) for the offences punishable under Sections 302, 498A read with section 34 of the Indian Penal Code (for short, "I.P.C."). After evaluating the evidence on record, the learned Trial Judge acquitted all the five accused (including present appellant) of the offence punishable under section 498A of the I.P.C. He further acquitted accused nos.1, 2, 4 and 5 of the offence punishable under Section 302 of the I.P.C. The respondent (prosecution) did not challenge acquittal of accused nos.1, 2, 4 and 5 of both of the above mentioned offences as well as acquittal of the appellant of the offence punishable under section 498A of the I.P.C. Thus, so far as this part of the judgment of the Trial Court is concerned, it has got finality. Therefore, I am not going to consider the evidence on record, so far as this part of the judgment is concerned.
The appellant had married to the deceased- Swati on 11.12.2008. It was alleged that he was harassing her with a view to compel her to bring cash amount from her matrimonial home. The appellant is alleged to have committed murder of his wife namely Swati in the night intervening 29.05.2009 and 30.05.2009 at his dwelling house situate in Dhobi Galli, Waluj, Taluka Gangapur, District - Aurangabad.
The father of the appellant (i.e. original accused no.1) lodged a report in Police Station Waluj, Aurangabad on 30.05.2009 at about 10.15 a.m. stating therein that on 29.05.2009 in the evening, the appellant and the deceased - Swati came back home from Urus (a religious fair) of village Pan- Ranjangaon at about 10:30 p.m. to 11:00 p.m. and went to sleep in their separate room. Accused no.1 got up at about 5:00 a.m. as usual. Since the appellant as well as the deceased - Swati had not got up even after 6:00 a.m., he went into their room for making them awake. He found that the deceased - Swati alone was inside the room. The appellant was not present there. He gave a call to the deceased - Swati and then moved her for making her awake. However, she neither moved nor spoke and therefore, he took her to Tirupati and Sai Hospitals, where she was declared as dead. He brought the dead body of Swati to his house and informed about her death to all the relatives. On the basis of the said report A.D. No.15/2009 came to be registered in Police Station Waluj, Aurangabad.
The dead body of Swati was referred to the Government Medical College and Hospital at Aurangabad for postmortem. Dr. Gadge and his associate doctor conducted postmortem of her body on 30.05.2009 between 01:35 p.m. and 02:35 p.m. Considering the external as well as internal injuries sustained by the deceased Swati and the report of the Chemical Analyst in respect of her viscera, they opined that she had died due to head injury.
The father of the deceased - Swati namely Machindra Vishwanath Sonule lodged First Information Report (for short, "F.I.R.") on 02.06.2009 against the appellant, his parents and sisters in Police Station Waluj, Aurangabad, alleging that they committed murder of Swati in furtherance of their common intention, as she could not fulfil their demand of money. On the basis of that F.I.R., Crime No.I- 57/2009 came to be registered for the offences punishable under Sections 302 and 498- A, read with section 34 of the I.P.C. Investigation followed. After completion of the investigation, the appellant, his parents and sisters came to be prosecuted for the said offences. As stated above, the appellant only came to be convicted and that too for the offence punishable under section 302 of the I.P.C. only.
The learned Counsel for the appellant submits that in the night of the incident at about 11:00 p.m., the appellant and the deceased - Swati are stated to have came back to their house after attending a religious fair (Urus) of village Pan- Ranjangaon. As seen from the evidence of the informant/Machindra (PW1) (Exh.32), the appellant and the deceased - Swati had decided to attend the marriage of his nephew that was scheduled to be performed on 30.05.2009. The mother of the deceased - Swati Mandabai (PW2) (Exh.35) admits that till receiving the phone message about the death of Swati, the deceased Swati was leading a happy married life. The learned counsel for the appellant submits that considering the above mentioned evidence of the parents of the deceased - Swati, it cannot be said that the appellant could have thought of committing her murder. The appellant has been acquitted of the offence punishable under Section 498A of the I.P.C. As such, the prosecution did not prove that the appellant was subjecting the deceased Swati to cruelty for any reason whatsoever. No motive has been established by the prosecution, which would have prompted the appellant to commit murder of Swati. According to him, the case of the prosecution is depending on circumstantial evidence only and therefore, in the absence of any motive on the part of the appellant to commit her murder, the chain of circumstances cannot be said to be complete so as to hold the appellant guilty for her murder. He submits that the appellant is liable to be acquitted of the offence punishable under section 302 of the I.P.C. also. In the alternative, relying on certain reported judgments, he submits that considering the nature of the injury sustained by the deceased - Swati, in fact, no weapon can be said to have been used for causing the said injury. The offence, at the most, can be said to have been committed of culpable homicide not amounting to murder, which may be punishable under section 304 Part II of the I.P.C. He submits that the appellant is in jail since 03.06.2009. He, therefore, prays that the appellant may be sentenced to suffer imprisonment which he has already undergone and may be ordered to be released forthwith.
As against this, the learned A.P.P. submits that from the A.D. report given by the father of the appellant, it is clear that the appellant and the deceased - Swati were sleeping in a separate room in the night of the incident. The deceased - Swati, who was in the custody of the appellant, was found dead due to head injury when she was sleeping inside that room. The appellant had absconded from that room and could be traced out on 03.06.2009 only. It was incumbent on the part of appellant to clarify the circumstances in which the deceased - Swati sustained head injury to which ultimately she succumbed. The appellant did not furnish any explanation to that effect. In the circumstances, the appellant has been rightly convicted by the Trial Court for the offence of committing murder of the deceased - Swati. He, therefore, prays that the appeal may be dismissed.
The case of prosecution is depending on the following circumstances:-
(i) Homicidal death of Swati.
(ii) The appellant and the deceased - Swati were last seen together and that the deceased Swati was in the custody of the appellant.
(iii) The appellant absconded in the night of the incident.
(iv) Failure of the appellant to explain the circumstances under which the deceased - Swati died.
Indisputably, the deceased - Swati was found dead in a separate room at her matrimonial house. The genuineness of the contents of the spot panchanama (Exh.52) has been admitted on behalf of the appellant. The genuineness of the contents of the inquest panchanama (Exh.51) in respect of the deceased - Swati also has been admitted on behalf of the appellant. The Inquest Panchanama (Exh.51) was prepared on 30.05.2009 between 12:15 p.m. and 1:00 p.m. in Government Hospital at Aurangabad. Blood was found oozing from the mouth of the deceased - Swati. Thereafter, postmortem of the body of the deceased - Swati was conducted by Dr. Gadge (PW4) and his companion. On external examination they found contusion over the right breast of 1 c.m. medial to right nipple having size 1 c.m. X 1 c.m., irregular in shape and reddish in colour, contusion over right temporo parital region having size 6 c.m. X 5 c.m., irregular in shape and reddish in colour and contusion over left temporal region of having size 4 c.m. X 4 c.m. irregular in shape and reddish in colour. On internal examination, they found deffused subarachnoid hemorrhage all over cerebrum and over both temporo parital regions. The opinion about the cause of death was reserved at the time of postmortem. After receiving the report of Chemical Analyst, they opined that the death of Swati was "due to head injury." The memorandum of the postmortem and final report as to the cause of death of Swati are Exhs. 57 and 58 respectively. In his cross-examination, Dr. Gadge (PW4) denied the suggestion that the head injury sustained by the deceased - Swati was possible by falling on hard and rough surface or that it was an accidental injury. In my opinion, had the deceased Swati sustained head injury accidentally, the appellant certainly would have made necessary arrangement to provide her medical aid. He would not have left her in injured condition to suffer death and got absconded. In the circumstances, I hold that the death of Swati was homicidal.
PSI Bhale (PW5) (Exh.59) deposes that on the basis of the information given by accused no.1 - Vithal, report (Exh.60) came to be scribed on the basis of which, A.D. No.15/2009 came to be registered in respect of death of Swati. This evidence has not been challenged in the cross- examination of this witness. By this report (Exh.60) accused no.1 informed that on 29.05.2009 at about 6:00 p.m. the appellant and the deceased - Swati had gone to village Pan- Ranjangaon to attend the religious fair called "Urus". They came back home at about 10:30 p.m. to 11:00 p.m. and went to sleep in their separate room. It is further mentioned that on the next day morning when he (i.e. accused no.1) got up from the sleep, he noticed that the appellant as well as the deceased - Swati had not got up till 06:00 a.m. Therefore, he entered into their room to make them awake, however, he found the deceased - Swati alone sleeping inside that room. The appellant was not found there. He tried to make the deceased - Swati awake, however, she neither moved nor spoke anything. He, thereafter, took her to Tirupati and Sai Hospitals, where she was examined and declared as dead. He requested the police to take further necessary action.
The contents of the report (Exh.60) do not speak of any confessional statement made by accused no.1. Nothing incriminating has been stated by him in the report against him. The said report was admittedly lodged much prior to registration of the crime for the above mentioned offences. It was not lodged by accused no.1 during the course of investigation. Accused no.1 was subsequently added as an accused in the present crime. In the circumstances, the report (Exh.60) would be admissible in evidence. To substantiate my view, I may refer to paragraph No.15 of the judgment in the case of Faddi v. State of Madhya Pradesh, AIR 1964 Supreme Court 1850 (V 51 C 259), which reads as under:
"The report is not a confession of the appellant. It is not a statement made to a police officer during the course of investigation. Section 25 of the Evidence Act and Section 162 of the Code of Criminal Procedure do not bar its admissibility. The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court, viz., how and by whom the murder of Gulab was committed, or whether the appellant''s statement in Court denying the correctness of certain statements of the prosecution witnesses is correct or not. Admissions are admissible in evidence under Section 21 of the Act. Section 17 defines an admission to be a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, thereafter mentioned, in the Act. Section 21 provides that admissions are relevant and may be proved as against a person who makes them. Illustrations (c), (d) and (e) to Section 21 are of the circumstances in which an accused could prove his own admissions which go in his favour in view of the exceptions mentioned in Section 21 to the provision that admissions could not be proved by the person who makes them. It is therefore clear that admissions of an accused can be proved against him."
In view of the above- cited ruling, the report (Exh.60) being admissible in evidence, the contents thereof will have to be considered for deciding the present case.
The informant - Machindra lodged report (Exh.33) on 02.06.2009. On the basis of that report, the above numbered crime came to be registered. The informant specifically states that after he received the message about the death of Swati, he went to her matrimonial home along with his relatives. At that time, he did not find the appellant there. On being inquired by him, the parents of the appellant told him that the appellant had got absconded since the night of the incident. He, therefore, gathered that after killing Swati, the appellant fled away. The evidence of the informant that in the night of the incident itself the appellant got absconded from his house, has not been challenged in his cross- examination. It is corroborated by the contents of the report (Exh.33) lodged by him. It is further supported by the evidence of Mandabai (PW2) (Exh.35), the mother of the deceased - Swati. As seen from the panchanama (Exh.28), the appellant came to be arrested on 03.06.2009. The genuineness of the arrest panchanama (Exh.28) has not been disputed on behalf of the appellant. PSI Bhale (PW5) has denied the suggestion that the appellant was arrested on his being surrendered before the police. He denied the suggestion that the appellant was beaten by the matrimonial relatives of the deceased - Swati and therefore, he had fled away. The contents of the report (Exh.60) lodged by accused no.1, themselves are sufficient to disclose that the appellant was absconding from the night of the incident. The appellant did not give plausible explanation about his absence from his own house for such a long period after the death of Swati.
As seen from the above referred evidence as well as from the contents of report (Exh.60), it is sufficiently established by the prosecution that the appellant and the deceased - Swati only, were sleeping in a separate room of their house. The deceased - Swati, as such, was in the custody of the appellant. The deceased - Swati sustained head injury and died in that room in the night of the incident. The appellant got absconded from that room after the incident. Here, reference may be made to Section 106 of the Indian Evidence Act, which reads as under :-
"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
The learned A.P.P. cited the case of Rajinder Singh v. State of Haryana, AIR(SC) 2529, wherein the scope of Section 106 of the Evidence Act has been given in paragraph No.15 of the judgment as under :-
"Section 106 of the Evidence Act does not relieve the burden of prosecution to prove guilt of the accused beyond reasonable doubt but where the prosecution has succeeded to prove the facts from which a reasonable inference can be drawn regarding the existence of certain other facts and the accused by virtue of special knowledge regarding such fail to offer any explanation then the Court can draw a different inference."
It is true that the initial burden is on the prosecution to prove the charge against the accused but once that burden is discharged, it is for the accused to prove the facts which are specially within his knowledge. In the present case, the prosecution has proved that the deceased Swati was in the custody of the appellant in the night of the incident. The deceased Swati, thus, was last seen in the company of the appellant. She sustained head injury and resultantly died in the night of the incident. Her death was homicidal. The appellant got absconded in the night of the incident itself. By establishing these circumstances, which clinchingly point out to the guilt of the appellant for causing the death of Swati, the prosecution discharged its initial burden to prove its case so far as the cause of death of Swati is concerned. Therefore, as per Section 106 of the Evidence Act, it was for the appellant to prove the facts leading to the death of Swati, which were within his special knowledge.
The appellant had an opportunity to explain the said facts in his statement under Section 313 of the Code of Criminal Procedure or even by examining himself as a witness in his defence. However, he did not avail of the said opportunity. A specific question was asked to the appellant at Sr.No.15 about his absence at his house after the incident and also at the time of funeral of the deceased - Swati, to which he simply stated that it was false. Though there is positive evidence to show that the appellant was absconding from his house after the death of Swati and further he did not attend the funeral of the deceased - Swati, he gave a false answer to question No.15 and tried to show his presence at his house after the incident and also for funeral of the deceased - Swati. When the appellant was asked as to whether he wanted to state anything more about the case, he simply replied that the case was false. In answer to this question, at least, he could have explained the circumstances, under which the deceased - Swati sustained head injury and what made him to flee away from his house after the incident. However, he did not explain at all about these facts which were especially within his knowledge.
In view of Section 106 of the Indian Evidence Act, the appellant cannot get away by simply keeping quiet and offering no explanation on the assumption that the burden to establish its case would be upon the prosecution and there is no corresponding duty on him to offer any explanation.
The learned counsel for the appellant submits that the case of the prosecution is depending on circumstantial evidence. Therefore, motive would play an important role in this case. He submits that the deceased Swati and the appellant had enjoyed a religious fair (Urus) at Pan- Ranjangaon just prior to the fateful night of the incident. The evidence shows that both of them had decided to go to attend the wedding ceremony of the cousin of the deceased Swati that was scheduled to be performed on 30.05.2009. The evidence of the informant and Mandabai (PW2) shows that the deceased Swati was leading a happy married life with the appellant. In the circumstances, no motive can be said to have been proved by the prosecution, which would have prompted the appellant to kill Swati. Therefore, according to him, in the absence of motive on the part of the appellant to kill the deceased Swati, the prosecution cannot be said to have proved beyond reasonable doubt the guilt of the appellant for causing her death.
I am not inclined to accept this contention of the learned Counsel for the appellant. Here, reference may be usefully made to the judgment in the case of Mulakh Raj and others v. Satish Kumar and others, (1992)3 SCC 43, wherein it has been observed in paragraph No.17 of the judgment as under:
"The question then is, who is the author of the murder? The contention of Sri Lalit is that the respondent had no motive and the High Court found as a fact that the evidence is not sufficient to establish motive. The case is based on circumstantial evidence and motive being absent, the prosecution failed to establish this important link in the chain of circumstances to connect the accused. We find no force in the contention. Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its nonexistence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.
Considering the above referred established circumstances, failure of the appellant to explain the facts leading to the death of Swati, which were within his special knowledge, and in view of the above- cited ratio, I hold that failure of the prosecution to prove motive on the part of the appellant would not be fatal to the prosecution. In the result, I hold that it is the appellant only who caused head injury to the deceased - Swati to which she succumbed.
The learned Counsel for the appellant submits that the evidence on record shows that the deceased Swati was leading a happy married life with the appellant. There was no reason for the appellant to kill the deceased Swati. He submits that there is nothing in the evidence of Dr.Gadge (PW4) to show that the injury found on the head of the deceased - Swati was sufficient in the ordinary course of nature to cause her death. Moreover, Dr. Gadge (PW4) does not state about any particular weapon or article by which the injury found on the head of the deceased - Swati, could have been caused. From the nature of the head injury sustained by the deceased Swati, it would be clear that it was caused by a single blow. No dangerous weapon was used for causing the said injury. The appellant did not act in cruel or unusual manner. Therefore, relying on certain reported judgments, he submits that the appellant, at the most, can be held guilty for the offence punishable under Section 304 Part II and not under Section 302 of the I.P.C.
The learned counsel for the appellant cited the judgment in the case of Kusha Laxman Waghmare v. State of Maharashtra, AIR 2014 SC 3839, wherein the accused had killed his wife by means of wooden bar, hitting very severely on her chest and at the back. Because of severe beating, there was internal bleeding and as a result thereof, she died. In paragraph No.11 of the judgment, it was held that the weapon used by the accused was a wooden stick by which the deceased was severely beaten. There was no evidence to show that the accused had beaten his wife with an intention to cause her death. Therefore, his conviction for the offence punishable under section 302 of the I.P.C. was altered to section 304 Part II of the I.P.C. and he was sentenced to suffer rigorous imprisonment for 10 years.
He further cited a judgment in the case of Kallu @ Kalyan Atmaram Patil v. State of Maharashtra, AIR 2009 SC (Supp) 970, wherein the accused had given a single stick blow on the head of the deceased which proved to be fatal. There was no evidence to show that the said injury was inflicted with intention or knowledge that it would cause death. Therefore, his conviction for the offence punishable under section 302 of the I.P.C. was altered to Section 304 Part I of the I.P.C.
The learned counsel for the appellant further relied on the judgment in the case of Santhanam v. State of T.N., AIR 2009 SC (Supp) 1085, wherein the accused had assaulted the deceased initially with the hands and then with a wooden log on his shoulder, right fore- arm and head. The postmortem report disclosed that the deceased had died of shock and haemorrhage due to injuries sustained on head. In the peculiar circumstances of the case, it was held that the offence established against the accused was under Section 304 Part I and not under Section 302 of the I.P.C.
The learned counsel for the appellant further relied on the judgment in the case of Ramachami v. State Rep. by State Prosecutor, AIR 2009 SC 712, the facts whereof run parallel to a considerable extent with that of the present case. In that case, it was established by the prosecution that the accused was employed in the hotel and used to sleep in the hotel. On the night of the occurrence, the deceased and accused were alone in the hotel. The accused and deceased were last seen together on the previous night. The accused was absconding after the incident and thereafter was arrested. The said circumstances were held to be sufficient to hold the accused guilty of the offence punishable under section 304 Part II and not under Section 302 of the I.P.C.
The learned counsel for the appellant further relied on the judgment in the case of Sompal Singh and Anr. v. State of U.P., AIR 2014 SC (Supp) 510, wherein the accused had caused injuries on head of the deceased using a sharp edged weapon. The medical evidence was showing that the injury caused by the appellant/accused therein was not sufficient to cause death independently. In the circumstances, the conviction of the appellant was altered to section 304 Part I from Section 302 of the I.P.C.
In the present case, though there is medical evidence showing that Swati died of the head injury, considering the nature of injury, no sharp edged weapon can be said to have been used for causing the said injury. The absence of multiple injuries on the person of the deceased Swati indicates that she was subjected to only one blow. The appellant does not seem to have taken undue advantage or acted in cruel or unusual manner. There is no medical evidence to show that the said injury was sufficient in the ordinary course to cause death. The visit of the appellant and the deceased Swati to village Pan- Ranjangaon for attending a religious fair (i.e. Urus) on the day prior to the fateful night and their proposed visit to the matrimonial house of Swati on the next day for attending the marriage of her cousin, are the circumstances which disclose that the appellant had no animus prompting him to kill her. From the facts and circumstances established on record, I am of the view that this is not a case of culpable homicide amounting to murder made punishable under section 302 of the I.P.C. In view of the facts and circumstances of the present case and the rulings cited on behalf of the appellant, I accept the defence of the learned counsel for the appellant that the appellant cannot be held guilty for the offence of committing murder of the deceased - Swati and that the present case would fall under section 304 Part II of the I.P.C.
The appellant caused injury on the head of the deceased - Swati in the night of the incident. After causing her injury, instead of making necessary arrangement for her medical treatment immediately, he fled away from his house. Considering the serious consequences of the act of the appellant, I do not think fit to extend the benefit of probation or show leniency to him in the matter of inflicting punishment. In the circumstances, I am not inclined to accept the contention of the learned counsel for the appellant that the appellant may be sentenced to suffer imprisonment which he has already undergone. In my view, to meet the ends of justice, the appellant would be required to be convicted to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/- in default to suffer imprisonment for 6 months for committing the offence punishable under section 304 Part II of the Indian Penal Code. The appellant is liable to be acquitted of the offence punishable under section 302 of the I.P.C. and to that extent, the impugned judgment and order is liable to be modified. In the result, I pass the following order.
ORDER
(i) The appeal is partly allowed.
(ii) The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code and instead, he is convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/-, in default to suffer rigorous imprisonment for six months.
(iii) The accused be given set-off from 03.06.2009 till today vide Section 428 of the Code of Criminal Procedure.
(iv) The amount of Rs.2,000/- deposited by the appellant, in the Trial Court on 21.03.2013 towards fine shall be appropriated towards the amount of fine imposed upon him by this Order.
(v) The amount of fine, if recovered, be paid to Machindra Vishwanath Sonule, resident of Wadala (Mahadeo), Taluka Shrirampur, District Ahmednagar, as compensation.
(vi) The appeal is disposed of accordingly in the above terms.