Criminal Appeal No.155 of 2006

14th January, 2008

Petitioner Counsel: Mr. C. V. THOMBRE
Respondent Counsel: Mrs. R. D. REDDY

Cases Cited:
Kantilal alias K. L. Gordhandas Soni Vs. State of Gujarat, 2003 ALL MR (Cri) 1774 (S.C.)=AIR 2003 SC 684 [Para 17]
State of U.P. Vs. Arun Kumar Gupta, AIR 2003 SC 801 [Para 18]
Joseph s/o. Kooveli Poulo Vs. State of Kerala, (2000)5 SCC 197 [Para 19]

JUDGMENT

P. R. BORKAR, J.:- The appellant is convicted by the learned Sessions Judge, Beed, on 5.1.2006 in Sessions Case No.7 of 2005, for committing murder of his wife Manjubai and thus committing offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life by his judgment and order.

2. Briefly stated, deceased Manjubai was wife of present appellant. They married 15-16 years before the incident on 2.10.2004. They were blessed with two sons and a daughter. Still the appellant was suspecting character of Manjubai and harass her. As a result, Manjubai used to leave the house and go to the house of her sister Tarabai (pw-3) or to her brother's house. Accused used to go and bring her back and again they used to live together. This happened many times.

3. Fifteen days before 2.10.2004 Manjubai had come to the house of Tarabai (pw-3) after she was beaten by accused-appellant due to suspicion on her character and was living with Tarabai (pw-3) at Hingni, Taluka Ashti, District Beed. The appellant is resident of village Diksal, Taluka Karjat, District Ahmednagar. On 1.10.2004 the appellant went to bring back his wife. Tarabai (pw-3) and deceased Manjubai had gone in the land of Tarabai. They returned at about 6.00 p.m. On that day, the husband of Tarabai (pw-3) Popat Pawal had gone to the brother of Tarabai for some reason and he had not returned back due to heavy rains. Bapu (pw-6) son of Tarabai was at the house when the appellant came. Tarabai (pw-3), Bapu (pw-6), the appellant and deceased Manjubai took dinner and Manjubai and Tarabai (sic) went to sleep in a room described as "Malwad". Tarabai (pw-3) and Bapu (pw-6) slept in kitchen. At about 4.00 a.m. there was sound of opening door and Tarabai (pw-3) saw the appellant going out. She thought that he might be going for answering nature's call and went to sleep. At 6.00 a.m. Tarabai (pw-3) got up and was doing her daily chores. Tarabai (pw-3) asked Bapu (pw-6) to wake up Manjubai and the appellant, but he did not go. At about 6.30 a.m. Tarabai (pw-3) went to knock the door of "Malwad", but the door got opened and she saw Manjubai lying in a pool of blood. Manjubai was dead. An iron pestle was lying nearby. The appellant was not there. So, Tarabai (pw-3) raised shouts. Bapu (pw-6), neighbour, Ambadas Gavane (pw-5) and others came. The matter was informed to Pandurang Zambare (pw-8) who was police patil of village Hingni. Pandurang (pw-8) went and informed the incident to police. Head constable Madhukar Shinde (pw-9) came, drew inquest and spot panchanama, sent dead body for autopsy, recorded complaint of Tarabai (pw-3) and then registered the offence. Further investigation was carried by Balasaheb Salve (pw-11) and Krishna Bandapatte (pw-12).

4. The accused was absconding since the happening of the incident and police were searching him. Police learnt that the appellant had hired a bicycle from Santosh Tandale (pw-10) and had not returned the bicycle. Police later on got information that the appellant was working at a Dhaba (restaurant) at Wanjare Fata on Beed-Ahmednagar road. The restaurant was run in the name of "Khandeshwari Dhaba" by Ashok Yeole (pw-7). So the police went and inquired with Ashok Yeole (pw-7) and showed him photograph of the appellant. The persons working there identified the photograph as another waiter working under name Ramesh Raut. The appellant was then arrested. Thereafter the appellant produced his clothes which were worn by him at the time of the incident and a bicycle which was attached under panchanama. The Chemical Analyser found human blood stains on the pant of the appellant which was washed several times in the mean time. The appellant was absconding from 2.10.2004 to 15.11.2004. Finally the police filed charge-sheet against the appellant.

5. The prosecution examined Tarabai (pw-3) at Exh.26 and Bapu (pw-6) at Exh.31. Both of them supported the prosecution case and stated that the accused used to suspect character of Manjubai and used to illtreat, beat and drive her out. Manjubai had come to them before 15 days before the incident. The accused came on earlier day and they had dinner at night. Thereafter Manjubai and the appellant went to sleep in the room called "Malwad". According to Tarabai (pw-3) at 4.00 a.m. she saw appellant opening the door of the house, but she thought that he might be going out for answering nature's call. Both witnesses also stated that at about 6.30 a.m. Tarabai opened the door, saw Manjubai lying dead and Tarabai shouted and Bapu (pw-6) also came there. They saw Manjubai was lying dead in a pool of blood. Thereafter neighbours were called. The accused was missing.

6. The said evidence of inmates of the house is further corroborated by neighbour Ambadas Gavane (pw-5) who stated that he was knowing deceased Manjubai. She had come to reside with her sister Tarabai (pw-3) 8-10 days prior to the incident. He had also seen the appellant at village Hingni on the previous day of incident in the evening. At about 6.30 p.m. the brother-in-law of Tarabai, by name Krishna, came to him at 6.30 a.m. and told him that the appellant had killed his wife Manjubai and he wanted to make a phone call.

7. This evidence is further supported by the police patil Pandurang Zambare (pw-8) who is examined at Exh.33. He stated that he was residing in his field at Hingni. At about 9.00 a.m. he came to village locality. People had gathered at the house of Popat Pawal the husband of Tarabai. On inquiry he came to know that sister of Tarabai was dead inside the house and so he went and saw the dead body. There were injuries on the forehead of the deceased. So he went to Ashti police station and lodged report Exh.34 which was treated as accidental death report and inquiry was taken over by Head Constable Madhukar Shinde (pw-9)

8. Madhukar Shinde (pw-9) stated at Exh.35 that he went to the place of the incident, drew inquest panchanama and spot panchanama and also recorded statement of Tarabai (pw-3) which was treated as complaint.

9. The evidence of Madhukar Shinde (pw-8) is further corroborated by panch Laxman Zambare (pw-1) examined at Exh.20. He proved the spot panchanama. The inquest panchanama Exh.18 is admitted by the accused under Section 294 of the Criminal Procedure Code. It is abundantly clear that it was a homicide.

10. Dr. Kalkute (pw-4) performed the post-mortem on the dead body on same day and he found following external injuries on the person of the deceased.

"(I) Clean lacerated wound on left eyebrow laterally, size 2 x 1 x 1/2 C.M.

(II) Clean lacerated wound on scalp, posteriorly, just behind left ear, size 5 x 1 x 1/2 C.M.

(III) Clean lacerated wound on left parietal region on scalp, size 2 x 1 x 1/2 C.M.

(IV) C.L.W. on left pinna posteriorly, 2 x 1/2 x 1/2 C.M.

(V) C.L.W. in front of left pinna 1 x 1/2 x 1/2 C.M.

(VI) Fracture of mandible on chin and just below left ear."

On internal examination the doctor found following injuries.

"(I) Head injury blood clot blackish red in colour, in frontal area lateral to left eye, size 2 x 2 x 1/2 C.M.

(II) Blood clot just behind left ear posteriorly, 5 x 1 x 1/2 C.M.

(III) Blood clot just below left parietal region, 2 x 1 x 1/2 C.M."

According to the doctor, the external injuries mentioned at Sr. Nos.I to III correspond to the internal injuries noted and the cause of death was intracranial haemorrhage due to head injury associated with mandible fracture.

11. All the witnesses have stated about the iron pestle stained with blood lying near the dead body of Manjubai. So all above said evidence clearly showed that Manjubai and the appellant had slept together in the room called "Malwad" at night. Since early morning of the incident the appellant was missing and Manjubai was found dead in the house. It is argued before us that though Tarabai (pw-3) and Bapu (pw-6) had slept in the kitchen which was nearby, they did not hear any sound or shout. If a person fast asleep is given blow with heavy iron article like pestle on head, there are no chances of raising any voice by such person and, therefore, if nobody had heard any sound or shouts of Manjubai, it is not unnatural.

12. The learned advocate also drew our attention to cross-examination of Bapu (pw-6) and argued that Bapu has not informed police patil or police immediately. The conduct of the appellant is also worth considering. The appellant was not seen since prior to 6.30 a.m. till he was arrested after one and half months. Police Sub-Inspector Salve (pw-11) has stated that he took over investigation on 2.10.2004 at 10.00 p.m. The offence was registered under Section 302 of the Indian Penal Code. Since it was late at night, he went through the papers, but did not go to the scene of offence. Already inquest and spot panchanamas were drawn. The accused was absconding. He tried to search and trace out the accused, but could not find him. He also went to Hingni and recorded the statements of witnesses. He went to village Diksal to trace out the accused. Head Constable Shinde (pw-9) was sent for tracing out the accused. It transpired that the accused had hired one bicycle from a cycle mart at Mirajgaon. So Police Sub-Inspector Salve went and met the shop keeper who is Santosh Tandale (pw-10) and told him not to disclose anybody about his arrival at the shop, but to inform him if the appellant returned for returning the bicycle. He continued the search of the appellant at places like Jamkhed, Mirajgaon, Diksal, Khadkat and other villages, but accused was not found. He sent articles like, sari of the deceased, her petticoat, simple earth, blood mixed earth, blood stained pestle to the Chemical Analyser. He produced the report of the Chemical Analyser at Exhs.43 and 44. Thereafter he was asked to hand over the investigation to the Police Inspector Bandapatte (Pw-12) on 25.10.2004.

13. Police Inspector Bandapatte (pw-12) stated that he also recorded statements of some witnesses. Then he learnt that one person having bicycle with him and belonging to village Mirajgaon had come to Khandeshwari Dhaba situated at Manewadi shivar in Patoda Taluka near Nagar-Beed road. The photograph of the appellant was available with them and, therefore, they went to the said Dhaba (restaurant) and inquired with the owner regarding the appellant - Navnath Waghmare. On seeing the photograph the workers working in the said Dhaba said that one Ramesh Raut just looking like the person in the photograph was working in the said Dhaba. The appellant was found sitting in the nearby agricultural land. He was arrested and Exh.47 was drawn. Thereafter the appellant showed willingness on 18.11.2004, while in the police custody, to produce the bicycle and his blood stained clothes. Accordingly memorandum was prepared. Thereafter the appellant again took police and panchas to Khandeshwari Dhaba and produced one pant and shirt from a drawer of pan shop nearby the Dhaba. He also produced bicycle which was attached under panchanama Exh.25. The said evidence is supported by the panch on discovery panchanama - Rajendra Tawale (pw-2). The clothes of the accused were also sent to the Chemical Analysis and the report of the Chemical Analyser detected the traces of human blood on the pocket of the pant.

14. The police also recorded the statement of the owner of the cycle mart - Santosh Tandale (pw-10) who proved that the appellant had taken on hire the said bicycle.

15. Thus, in this case the circumstances proved clearly indicate that the appellant had slept with deceased Manjubai in the same room on fateful night. The appellant left the house just before Tarabai (pw-3) woke up at about 6.00 a.m. and thereafter he was missing. Tarabai (pw-3) when went to wake up the appellant and Manjubai, saw Manjubai lying dead in the pool of blood. The iron pestle used for making powder of chilly was lying there. It was stained with blood.

16. The evidence of the doctor shows that the injuries were possibly caused by the iron pestle - article no.2. The accused was working in Khandeshwari Dhaba under pseudonym 'Ramesh Raut'. He did not attend funeral of his wife and was absconding for one and half months. There was also motive in as much as there was suspicion about the character. He had quarrels with the wife. So in our opinion the chain of the circumstances is complete.

17. The learned advocate cited some cases. The first is Kantilal alias K. L. Gordhandas Soni Vs. State of Gujarat (AIR 2003 SC 684 : 2003 ALL MR (Cri) 1774 (S.C.)). In that case it was held, the circumstances that the accused was seen at the house of deceased on fateful day, he had given gold ornaments to gold smith for melting and he had sold gold ingots to a Jeweller were not established. The neighbour who had deposed to have seen the accused-appellant in the house on fateful day was not found trustworthy. He could not state how he could identify the accused-appellant though there was no light and his statement was recorded after 39 days. So that was the decision on the facts of the said case.

18. The second case cited is State of U.P. Vs. Arun Kumar Gupta (AIR 2003 SC 801). In that case the witnesses who had seen accused and deceased entering house of accused, disclosed that fact at the time of his examination. It was found that the venue of offence was most unsuitable for offence. The blood stained articles recovered were not sent for examination. The evidence was not found reliable. Though it is alleged that injuries were caused inside the house, the body of the deceased was found in a well. There was no trail of blood from house to well where dead body was found. Therefore it was held in the facts of the said case that evidence was not sufficient to base conviction on the basis of circumstantial evidence.

19. In the case of Joseph s/o. Kooveli Poulo Vs. State of Kerala, (2000)5 SCC 197, deceased, an employee of a school was taken away from the school by the accused-appellant under a false pretext. She was last seen alive in the company of the appellant and the jewels worn by her at the time of her leaving the school with appellant were seized on the basis of information given by the appellant. The appellant instead of explaining those incriminating circumstances had taken a defence of total denial of everything when those circumstances were brought to his notice by the Court. Such denial was held to be providing missing link connecting the appellant with the crime.

20. In the present case also the appellant has come with a case of total denial. He does not explain what had happened in the room in which he was sleeping with his wife Manjubai, why he left the house without telling anyone before 6.00 a.m. and under what circumstances Manjubai had sustained injuries.

21. It may be noted that Dr. Kalkute (pw-4) in his statement has stated that the death must have been caused about 6 to 7 hours after the last meal and it has come in the evidence of Tarabai (pw-3) that she herself, Manjubai, the appellant and Bapu (pw-6) all had dinner at 8.30 p.m. or so. So the death must have occurred somewhere at 3.00 to 4.00 a.m. when the appellant alone was in the company of the deceased. In the facts and the circumstances of the case, we find no merit in the appeal and the same deserves to be dismissed.

22. In the result, the appeal is dismissed.

Appeal dismissed.