2014 ALL MR (Cri) 3012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.K. TAHILRAMANI AND V.L. ACHLIYA, JJ.

Smt. Jyoti Vijay Malusare Vs. The State of Maharashtra

Criminal Appeal No.1103 of 2009

27th March, 2014

Petitioner Counsel: Mr. RAJENDRA SHIRODKAR, Shri. ARCHIT SAKHALKAR
Respondent Counsel: Smt. V.R. BHONSALE

Penal Code (1860), S.302 - Evidence Act (1872), Ss.24, 106 - Murder - Case based on extra judicial confession and circumstantial evidence - Wife alleged to have caused death of her husband by administering him sleeping pills through milk and by throttling - Accused, deceased and younger brother of deceased had dinner at about 11:30 pm in the night of incident - Younger brother then left the place and accused and deceased were sleeping in the room on same bed - Next morning deceased found dead - Drug "Chlorpheniramine" detected in viscera and blood of deceased - Injuries found over neck, head, nose and ears of deceased - Accused offered no explanation as to how deceased sustained injuries - Extra-judicial confession made by accused before brother of deceased accepting her complicility in murder, found to be voluntary and not suffering from any material discrepancies - It is also corroborated by chain of circumstances - Motive as to love affair also established - Moreover, recovery of sleeping pills also made at instance of accused - Circumstances form complete chain of events from which only conclusion about guilt of accused can be drawn - Hence, conviction of accused held proper.

2007 ALL MR (Cri) 525 (S.C.) Ref. to. (Paras 41, 42, 43)

Cases Cited:
Sahadevan & Anr. Vs. State of Tamilnadu, 2012 ALL SCR 1956=(2012) 6 SCC 403 [Para 15,17]
Tanviben Pankajkumar Divetia Vs. State of Gujarat, (1997) 7 SCC 156 [Para 33,37]
Ram Singh Vs. Sonia & Ors., 2007 ALL MR (Cri) 1166 (S.C.)=(2007) 3 SCC 1 [Para 37]
Vikramjit Singh @ Vicky Vs. State of Punjab, 2007 ALL SCR 2094=(2007) 1 SCC (Cri.) 732 [Para 37]
Mohd. Mannan @ Abdul Mannan Vs. State of Bihar, 2011 ALL SCR 2857=(2011) 5 SCC 317 [Para 39]
State of Rajasthan Vs. Kashi Ram, 2007 ALL MR (Cri) 525 (S.C.)=(2006)12 SCC 254 : AIR 2007 SC 144 [Para 43]


JUDGMENT

V. L. ACHLIYA, J. :- This appeal is preferred by appellant-original accused No.1 against the judgment and order dated 28/10/2009 passed by the learned 1st Ad-hoc Additional Session Judge, Greater Mumbai in Session Case No.501 of 2008, whereby the appellant/original accused No.1 held guilty of offence u/s. 302 of Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.2,000/- and in default to suffer further rigorous imprisonment for six months. Being aggrieved by the judgment and order, the appellant has preferred this appeal.

2. In brief, the facts leading to filing of this appeal are as under :

(i) As per the prosecution case, the marriage of deceased Vijay was solemnized with appellant/accused No.1 Jyoti on 09/05/2007. After her marriage, the appellant came to Mumbai for cohabitation with deceased-Vijay. On 08/06/2007, Ramchandra Malusare the brother of Sahebrao Malusare (PW2)-the father of deceased-Vijay was expired. For the purpose of performing his last rituals, Sahebrao (PW2) and his family members including deceased-Vijay and appellant-Jyoti went to their village Gadhevali, Taluka Mahabaleshwar, District - Satara. After performing rituals, deceased-Vijay and Jyoti returned to Mumbai on 10/06/2007. Abhay (PW1)-the younger brother of deceased-Vijay returned back to Mumbai on 08/06/2007 after performing funeral of Ramchandra Malusare. On 14/06/2007, deceased Vijay left for his work at 8.00 a.m. and came back to his house at about 10.30 p.m. On 14/06/12007, at about 11.00 p.m., Abhay (PW1), deceased-Vijay and accused No.1-Jyoti took dinner together. After taking dinner, at about 11.30 p.m. Abhay (PW1) went to the mezzanine floor for sleeping and deceased-Vijay and accused No.1- Jyoti were alone in the room. On the next day morning - i.e. on 15/06/2007 - at about 6.30 a.m., accused No. 1-Jyoti went to the mezzanine floor and informed Abhay (PW1) that Vijay was not getting up. Therefore, he came in the room where Vijay was sleeping. He tried to awake his brother-Vijay who was sleeping on the bed, but he did not respond. Therefore, he called his neighbours, who also tried to awake him. He informed this fact to his parents on phone. With the help of neighbours, Abhay (PW1) carried Vijay to Rajawadi Hospital, Ghatkopar. Medical Officer who examined Vijay disclosed that he was already dead. There was injury on his throat and the blood was oozing from his nose and ears and froth was coming from his mouth. Doctor who examined Vijay, expressed that deceased might have died due to strangulation. The fact that deceased brought to hospital and declared as dead was intimated to Police Station, Ghatkopar. P.S.I.-Khandvi (PW12), who was then officer on duty at police station, immediately came to Rajawadi Hospital and inspected the body of deceased in presence of panchas and prepared inquest panchanama vide Exh.31. During inquest panchanama, he noticed marks of injuries over the body of deceased including throat and seen the blood was oozing from nose and ears and the froth was coming from his mouth. PSI-Khandvi started inquiry to ascertain the cause of death of deceased by registering A.D.R. No.70/07.

(ii) During the course of inquiry, PSI-Khandvi (PW12) visited the spot of incident. In presence of panch witnesses, he inspected the spot i.e. Room No.13, Dattatraya Chawl No.8, Indira Nagar No.2, Sai Nagar road, Ghatkopar (W), Mumbai where the incident was occurred. In the room, he found one towel (Art.A), piece of lungi (Art.B) lying on washing machine. He has also found one pillow (Art.C) which was lying behind the washing machine. He found blood stains over those articles. He seized, sealed and taken into custody the said articles after making spot-cum-seizure panchanama vide Exh.18. The dead body of Vijay was sent for postmortem. Dr.Waman Kedari Gaikwad (PW11) conducted the postmortem. He found ligature mark encircling the neck on the body of deceased-Vijay. He also found contusion over the scalp. After conducting postmortem, Dr.Gaikwad opined the cause of death of deceased as asphyxia due to strangulation. Dr.Gaikwad (PW11) obtained the sample of contents of stomach, the pieces of small intestine, liver, kidney, spleen and blood in four different bottles and those were separately sealed and labelled for referring it to Chemical Analyzer for analysis.

(iii) Abhay (PW1) who had taken deceased-Vijay to hospital came back to house after the medical officer expressed that the deceased died unnatural death and further expressed the opinion that death might have been caused due to strangulation. He made an inquiry with accused No.1-Jyoti after taking her to mezzanine floor. The appellant/accused confessed before him that she had administered the tranquilizer tablets through milk to deceased-Vijay and committed his murder by throttling, as he was taking suspicion on her character. Abhay (PW1) lodged complaint vide Exh.14 with Police Station, Ghatkopar. On the basis of complaint lodged, offence u/s. 302 of I.P.C. came to be registered against the appellant/accused. Appellant/accused was arrested on 15/06/2007 vide arrest panchanama Exh.39. The clothes on her person were seized. The clothes of deceased which were brought from hospital were also seized vide seizure panchanama (Exh.37).

(iv) The further investigation of the case was taken over by PI-Fulsingh Pawar (PW13). On 16/06/2007, he recorded the statements of Sahebrao(PW2)-father, Rajani(PW7)-mother, Abhay (PW1)-the younger brother and other witnesses. During the course of investigation, it was revealed that accused No.1-Jyoti had love affair with accused No.2-Jeevan prior to her marriage with deceased-Vijay and by hatching conspiracy, she committed murder of her husband i.e. deceased Vijay. On 18/06/2007, appellant/accused shown her willingness to show the place and produce the tablets which were used in commission of offence. The voluntary statement made by appellant/accused was recorded in presence of two panch witnesses which include Pandurang Gade (PW9) vide Exh.32. Thereafter, the appellant/accused led the police parties and panch witnesses to her house in Dattatraya Chawl. She went to mezzanine floor and produce one strip containing one tablet and packet containing two loose tablets which were kept at the base of the suitcase below the clothes. PI-Pawar (PW13) seized those tablets vide seizure/recovery panchanama-Exh.33. It was also revealed that accused No.1-Jyoti had approached Dr.(Shri.) Rajendra Ramchandra Wakchaure (PW4) on 12/06/2007 and 14/06/2007 in fictitious name of Mrs.Waghmare and procured tablets from him. On 12/06/2007, accused No.1-Jyoti had visited Shri.Sanjay Anant Gaikar (PW5), the Proprietor of Sanket Medical Store, for securing two strips of tablets, though Dr.Wakchaure had given prescription for one strip (containing 10 tablets). It was revealed that Jyoti had procured tablets having sedative effect from Dr.Wakchaure on the pretext that she was suffering from problem of sleep and headache. PI-Shri.Fulsingh Shamrao Pawar (PW13), seized six tablets from Dr.Wakchaure and also seized xerox copy of register (Exh.28) pertaining to noting of patients visited on 12/06/2007 and 14/06/2007 maintained by Dr.Wakchaure (PW4) in presence of panch Shri.Arun Maruti Jadhav (PW8) and another panch, vide seizure panchanama-Exh.29. Postmortem report was collected. The seized articles were sent to Chemical Analyzer on 19/06/2007 along with forwarding letter-Exh.67. He also recorded supplementary statements of witnesses. The accused No.2-Jeevan was arrested on 19/06/2007

3. On completion of investigation, the charge sheet was prepared and filed in the court of Metropolitan Magistrate, 49th Court, Vikroli (E), Mumbai. Since the offence u/s. 302 of IPC being exclusively triable by Court of Sessions, the case was committed to Court of Sessions, Greater Mumbai. On committal of case, it was assigned to the file of 1st Ad-hoc Additional Sessions Judge, Greater Mumbai at Mumbai. On 16/10/2008, the learned 1st Ad-hoc Additional Sessions Judge framed the charges against appellant/accused No.1 and co-accused-Jeevan Vaman Waragade. They were charged for committing offences punishable under sections 302, 120-B, 109 and 201 of IPC. Both the accused pleaded not guilty and claimed to be tried.

4. In order to prove it's case, the prosecution has examined 13 witnesses. The appellant has examined one witness in support of her defence. From the cross-examination of the prosecution witnesses and statement recorded under section 313 of Cr.P.C. as well as the defence witness examined by appellant, the defence of appellant appears to be of false implication. She has filed statement in defence, wherein she has stated that she was taking treatment from Dr.Rahate (DW1) as she was suffering from anxiety. On 14/06/2007, after dinner, her husband gave her medicine and thereafter she went to bed. Due to effect of medicine, she went in deep sleep. At about 6.00 a.m., she got up and tried to wake up her husband, however he did not wake up. She, therefore, suspected some foul play, therefore, she went outside the room. The room was open. She called her brother-in-law Abhay (PW1). Her husband was taken to hospital and later on she learnt that her husband died. At about 11.00 a.m., she was taken to police station and detained and later on she was arrested in the evening. The accused No.2-Jeevan had taken defence of total denial.

5. On conclusion of the trial, the learned Additional Session Judge has found the accused No.1-Jyoti guilty of offence u/s. 302 of the IPC and sentenced her to undergo rigorous imprisonment for life and to pay fine of Rs.2,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months. She was acquitted for offence u/s.120-B, 109 and 201 of the IPC. The accused No.2 was acquitted of the offence u/s. 302, 120-B, 109 and 201 of the IPC. Being aggrieved by the judgment and order of conviction, the appellant has preferred this appeal on the grounds set out in detail in the memo of appeal.

6. We have heard Mr.Rajendra Shirodkar-the learned counsel appeared along with Advocate Archit Sakhalkar for the appellant/accused No.1 and Smt.V.R.Bhonsale-the learned Additional Public Prosecutor for the State. We have carefully perused the evidence adduced in the case as well as impugned judgment and order passed by the learned Additional Sessions Judge.

7. If we consider over all case of the prosecution, the defence of accused, evidence adduced by the prosecution as well as the appellant/accused and submissions advanced, then fact is not in dispute that the marriage of deceased-Vijay with appellant/accused No.1-Jyoti was solemnized on 09/05/2007. After the marriage the appellant and deceased were staying together in Room No.13, Dattatraya Chawl No.8, Indira Nagar, Ghatkopar (W) Mumbai. There is no dispute as to the fact that the incident in question was occurred in the intervening night of 14/06/2007 and 15/06/2007 in said premises. Admittedly on the day of incident i.e. during the night time besides appellant/accused No.1 and deceased-Vijay no other person was present in the room. The fact is also not in dispute that the appellant, the deceased and Abhay (PW1) had taken dinner together at about 11.00 p.m. and after finishing dinner at about 11.30 p.m. Abhay (PW1) went to sleep on mezzanine floor of the room, which had separate access from outside the room. In the night time, the appellant and deceased were alone present in the room. So also, the fact is not in dispute that on 15/06/2007 at about 6.30 a.m. the appellant went to mezzanine floor and wake up Abhay (PW1) and told him that his brother deceased-Vijay was not getting up. He, therefore, came from the mezzanine floor and tried to awaken deceased-Vijay and later on he was taken to Rajawadi Hospital, Ghatkopar. The medical officer present in the casualty found the deceased brought as dead. At the time of inquest panchanama, the ligature mark encircling the neck with some other injuries were found over the body of deceased. So also, the cause of death of deceased is not in dispute. If we consider the defence of the appellant, then the appellant has not disputed that the incident was occurred in the room in which she was sleeping on bed with her deceased husband. According to defence, the appellant was not keeping well, therefore she had taken tablets and went to sleep. She was in deep sleep, therefore, she was unaware as to what was transpired during the night although her deceased husband was sleeping by her side on the bed. She woke up in the morning and tried to wake up her husband, but he was not responding, therefore, she called Abhay (PW1). In nutshell, the defence has not disputed the fact that deceased died unnatural death which was found to be caused due to strangulation in the room where the appellant was present with deceased. The appellant has disputed and denied her role in causing the homicidal death of deceased. Therefore, it is necessary to examine as to whether prosecution has proved the complicity of appellant/accused in commission of offence and proved her guilt beyond reasonable doubt.

8. In order to establish the fact that the deceased died homicidal death and that too due to strangulation, the prosecution has adduced sufficient evidence. Prosecution has examined Dr.Waman Gaikwad (PW11), who conducted autopsy of dead body of deceased. His testimony is at Exh.45. He has deposed that on 15/06/2007, the dead body of Vijay Malusare was referred to him for postmortem. At the time of examination of dead body, he noticed the froth was coming from the mouth of deceased-Vijay and red and white fluid was oozing from nose. On examination of dead body of deceased-Vijay, he found following external injuries :

I) Ligature mark measuring 33 cm x 7 ½ cm, total encircling around the neck, complete in nature, abraded contusion over the neck and anterior over and blow thyroid cartilage, reddish V-shaped 24 c.m. x 2 ½ c.m., mid line 24 c.m. x 2 ½ c.m. right side, 3 c.m. width, left side 2 c.m. width. Knot - over nape of the neck. The ligature is completely encircling the neck.

Cut section of neck anteriorly - Skin reddish colour, neck structure is totally contused and heamotoma present at various parts, with blood clots present. Thyroid cartilage is reddish, swollen, oedematous including the neck structure and contused. On cut section froth present.

II) On back side of trunk, there were contusions.

1) Axilla to Axilla - 36 c.m. x 4 c.m.

2) Axilla to Axilla - 24 c.m. x 4 c.m.

3) Infra-scapular Bilateral of size 26 c.m. x 6 c.m.

The injuries Nos.1 to 3 were parallel to each other and faint red in colour. All these injuries were anti-mortem.

On internal examination he found the following injuries :

1) Multiple contusion over scalp measuring about 1 ½ cm X ½ cm on cut section underlying tissues haemorhagic.

2) Skull - Evidence of fracture of base of skull i.e. linear fracture.

3) Brain - Oedematous congested contused on cut section patecheal spots present.

Meninges - Intail, congested and contused.

4) Throax - intact, except swollen, oedematous contused, thyroid cartilage with neck structure, fracture hyoid bone, greater cornu bilateral.

5) Larynx and trachea had contusions which were reddish in colour.

6) Abdomen - Peritoneum is contused at some places of variable sizes.

9. Dr.Gaiwad-(PW11) has opined that the cause of death of deceased-Vijay was asphyxia due to strangulation with hard and blunt trauma over head both ears, nose and eyes with assault over back side of trunk. The report of postmortem examination is at Exh.48. He has further deposed that the injury No.1 referred in column No.17 of the postmortem report i.e. injury over the neck suggesting strangulation was possible by towel (Art.A). He has further deposed that the head injury as referred in column No.19 of P.M.Report, can be caused if the head of any person is forcibly banged on the hard and blunt object like wall and floor. Similarly, the injuries on the face i.e. over the nose and ear as referred in column No.13 of the P.M.Report are possible due to pressing on the face by the object like pillow (Art.C). He has further deposed that the injuries which were found on the body of deceased-Vijay were sufficient in ordinary course of nature to cause death of any person.

10. Dr.Gaikwad (PW11) has further deposed that the death of the deceased-Vijay might have been caused after two to four hours after taking last meal. P.W.11 has further deposed that he had collected the contents of stomach and loop of small intestine in one bottle. In another bottle he collected the pieces of liver, spleen and kidneys. In third and fourth bottles, he preserved the blood. He has deposed that he had referred all the four bottles to Chemical Analyzer after bottles were duly sealed and labeled. By referring the report of Chemical Analysis (Exh. 54), he has deposed that on examination of viscera the drug "Chlorpheniramine" was found in the viscera as well as blood of deceased. He has pointed out that as per the C.A.Report in the contents of stomach, loop of intestine and pieces of liver, spleen, kidney 1.5 mg. per 100 gms. and 1.11 mg. per 100 gms. respectively, the drug Chlorpheniramine was detected. Similarly, in the blood of deceased, 0.92 mg. per 100 milliliters of Chlorpheniramine was detected. He has categorically deposed that the consumption of such quantity of Chlorpheniramine drug may cause death. He has further deposed that the Avomine tablet (Art.E) is an antihistamine drug and same is easily available in market. Promethazine is one of the ingredient of Avomine tablet and it is harmful. He has further deposed that quantity of 1 gm. of Avomine or Promethazine is fatal.

11. If we consider the cross-examination of Dr.Gaikwad (PW11), then nothing substantial has been brought to dislodge the case of prosecution that deceased died on account of homicidal death and the cause of the death of deceased was asphyxia due to strangulation associated with trauma over head, both ears, nose, eyes with assault over back side of neck.

12. Thus, on due consideration of the prosecution case, defence of the appellant/accused No.1, the testimony of autopsy surgeon (PW11), the inquest panchanama (Exh.31), report of postmortem (Exh.48) and C.A. Report (Exh.54), we have no hesitation in reaching to conclusion that the prosecution has adduced sufficient evidence to establish the fact that the deceased died because of asphyxia due to strangulation associated with the multiple injuries which were also associated with Chlorpheniramine positive level in viscera and blood of deceased.

13. Now, we proceed to examine as to whether the prosecution has established the complicity of appellant in causing the homicidal death of deceased and proved it's case beyond reasonable doubt. If we consider the prosecution case and evidence adduced, then there are no eye-witness to the incident. The entire case of the prosecution is based on extra-judicial confession made by appellant/accused No.1 to Abhay (PW1)-the younger brother of the deceased and circumstantial evidence.

14. In order to prove the extra-judicial confession made by appellant/accused, the prosecution has examined Abhay (PW1)-the brother of the deceased and Sahebrao (PW2)-the father of deceased. In order to establish the circumstances of last seen together, the prosecution has relied upon the testimonies of Abhay (PW1), Mangala (PW6)-the neighbour of the deceased. In order to establish the recovery of towel, piece of lungi and the pillow stained with blood from the place of incident, the prosecution has relied upon the testimonies of PSI-Khandvi (PW12), Dipak Khandekar (PW3)-the panch witness to spot-cum-seizure panchanama (Exh.19). In order to establish the circumstance that prior to the murder of the deceased, the appellant had procured the tablets causing sedative effect i.e. tranquilizers, the prosecution has examined Dr.Rajendra Wakchaure (PW4)-the medical practitioner, who was practicing in Indira Nagar locality, Sanjay Gaikar (PW5)-the owner of Medical Shop in the locality and Arun Jadhav (PW8)-the panch witness to seizure of pages from the diary maintained by Dr.Wakchaure of patients visited his dispensary on 12/06/2007 and 14/06/2007. Prosecution has relied upon the testimonies of PI-Fulsingh Pawar (PW13) and Pandharinath Gade (PW9)-the panch witness to prove recovery of tablets at the instance of appellant from her house. Prosecution has examined Sahebrao Malusare (PW2) to corroborate the testimony of P.W.1. on the point of extra-judicial confession made by appellant to Abhay (PW1) as well as the relationship/affair of appellant prior to her marriage with accused No.2. Prosecution has examined Rajani Malusare (PW7)-the mother of deceased to establish the relationship/affair of appellant prior to her marriage. Prosecution has examined Dr.Gaikwad-(PW11)-the autopsy surgeon to prove the cause of the death of the deceased. Prosecution has examined Tukaram Shelar (PW10)-the panch witness to prove the seizure of clothes of deceased. Prosecution has examined PSI-Khandvi (PW12) and PI-Fulsingh Pawar (PW13)-the investigating officers, who have conducted the investigation. The appellant/accused has examined Dr.Satish Jagannath Rahate (DW1) as defence witness to establish that she was suffering from problem of anxiety and she was taking treatment for the same. Prosecution has further relied upon the report of postmortem (Exh.47) and reports of Chemical Analyzer-Exh.54 to 58.

15. Mr.Shirodkar-the learned counsel appearing for appellant, by referring the testimony of Abhay (PW1)- the witness examined by the prosecution to prove the extra-judicial confession allegedly made by the appellant/accused, contended that the testimony of P.W.1 inspires no confidence and cannot be treated as a basis for convicting the appellant. He has argued that as per the fact deposed by P.W.1, the alleged extra-judicial confession was made to him on 15/06/2007 at about 9.00 a.m., after he came from hospital and taken the appellant to mezzanine floor to inquire about the death of deceased. By referring the testimonies of Mangala (PW6), Rajani (PW7) and PSI-Khandvi (PW12), he has submitted that according to them Abhay (PW1) did not return to his house at 9.00 a.m. He has submitted that as per Mangala (PW6), she was present in the house of appellant from 6.30 a.m. to 11.30 a.m. By that time P.W.6 was not found to have come to his house. Similarly, Rajani (PW7) has deposed that she met Abhay (PW1) in the evening at the time of funeral and prior to that he has not come to house. According to PSI-Khandvi, Abhay was with him throughout the day. The learned counsel has further submitted that as per the inquest panchanama, the Abhay (PW1) was shown to be present in hospital at 8.45 a.m. while making inquest panchanama and he has identified the dead body as that of deceased. The panchanama shown to have been concluded at 9.20 a.m. It is therefore, submitted that the presence of Abhay (PW1) at 9.00 a.m. in his house and making inquiry with appellant/accused raises suspicion and doubt and therefore no reliance can be placed on alleged extra-judicial confession. He has submitted that it is well settled position in law that extra-judicial confession is a weak type of evidence and Court should be very cautious while placing reliance on such evidence to form the basis for conviction. In support of his contention, placed reliance on the ruling reported in (2012) 6 Supreme Court Cases 403 : [2012 ALL SCR 1956], Sahadevan & Anr. v. State of Tamilnadu.

16. On the other hand, the learned A.P.P. for the State has submitted that the testimony of Abhay (PW1) inspires full confidence and the discrepancies as pointed out as to exact time at which Abhay (PW1) visited his house no way goes to the root of the matter and sufficient enough to discard his testimony. She has submitted that Abhay (PW1) was the most natural witness to whom such confession was expected to have been made by appellant. The learned A.P.P. has argued that P.W.1 was of young age without much educational background. Due to such incident, he was disturbed and therefore possibility of discrepancy in telling the exact time cannot be ruled out in such circumstances. The learned A.P.P. has pointed out that Rajani (PW7) has come to her house at 10.30 a.m. Therefore, she was not expected to know about the visit of P.W.1 at about 9.00 a.m. The learned A.P.P. has further pointed out that Mangala (PW6) was the neighbour of deceased-Vijay. She was residing in the neighbourhood of the deceased-Vijay. Therefore, she may be coming and going back to her house during 6.30 a.m. to 11.30 a.m. So also, it is nowhere stated by P.W.12 that P.W.1 was present with him through the day and he had at all not visited his house from hospital. It is, therefore, contended that no much weightage can be given to discrepancy regarding timing brought on record by the defence.

17. In order to appreciate the submissions advanced, we have closely scrutinized the testimony of Abhay (PW1) in the light of principles laid down by the Apex Court in the ruling reported in (2012) 6 Supreme Court Cases 403 : [2012 ALL SCR 1956], Sahadevan & Anr. v. State of Tamilnadu. Perusal of the ruling cited reflects that on due consideration of earlier judgments of Apex Court as regards to admissibility, reliability and evidentiary value of extra-judicial confession, the Apex Court has laid down the following principles to be taken into consideration while forming the extra-judiciary confession as an admissible piece of evidence to form the basis of conviction of accused. In Para.16 of the judgment, the Apex Court has observed as under :

"Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused :

(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

18. We have scrutinized the testimony of Abhay (PW1) in the light of principles laid down in the above mentioned case. We are of the view that the testimony of Abhay (PW1) inspires full confidence and same is found to be truthful. So also, the extra-judicial confession made by appellant/accused to him found to be voluntary and not suffers from any material discrepancies. It is found to be duly corroborated on material particulars by chain of circumstances established by the prosecution. We are, therefore, of the view that the extra-judicial confession made by appellant/accused to Abhay (PW1) can be accepted as admissible piece of evidence to form the basis to uphold the conviction of the appellant.

19. In our view Abhay (PW1) is a most natural witness to whom such confession could have been made by appellant/accused No.1. He was not a stranger to appellant/accused No.1. On the previous night, the appellant-Jyoti, the deceased-Vijay and Abhay (PW1) had taken the meal together. It has come in the evidence of Abhay (PW1) that on the say of appellant/accused No.1, he had brought milk in the night. They had taken dinner at about 11.30 p.m. After taking meal, P.W.1 went to mezzanine floor. After P.W.1 left the room, beside the deceased-Vijay, the appellant/accused No.1 no other person was present in the room. While he was sleeping on the mezzanine floor, appellant/accused came to him at about 6.00 to 6.30 a.m. and informed that his brother the deceased-Vijay was found to be not getting up. He therefore, came down and tried to awake his brother-deceased Vijay, but he was not responding. Therefore, he called the persons in the neighbourhood and with their help taken Vijay (deceased) to Rajawadi Hospital, where he was declared to be brought as dead. Doctor who examined Vijay opined that he died an unnatural death and that too due to throttling. In this background, in our view, it is a most natural conduct for any person like Abhay (PW1) to inquire with a person with whom the deceased was present throughout the night to know as to what was transpired and how the person with whom they had taken dinner together at 11.30 p.m. found dead in the morning that too due to throttling. Therefore, in our view, the testimony of Abhay (PW1) that he came to his house at about 8.30 a.m. and taken appellant-Jyoti to mezzanine floor and made inquiry with appellant/accused as to death of his brother-Vijay which appears to be most natural conduct of a person. Similarly, in such situation, the appellant/accused No.1 confessed to Abhay (PW1) about her guilt before him appears to be most natural and voluntary.

20. In our view, no much weightage can be given to certain discrepancies as to time brought through the testimonies of Mangala (PW6) and Smt.Rajani (PW7). Smt.Mangala (PW6) was a neighbourer. She has deposed that at about 6.00 to 6.30 a.m. she came to house of deceased-Vijay and she was there up to 11.30 a.m. On the basis of this admission, it cannot be said that from 6.30 a.m. to 11.30 a.m. she had not left the place and throughout she remained present in the house of deceased. In the facts and circumstances of the case, it can be inferred that there is every possibility that intermittently she may be coming and going back to her house. Therefore, it cannot be accepted with all certainty that Abhay (PW1) has not visited his house. As far as testimony of Rajani (PW7) is concerned, she has deposed that she reached to her house at about 10.30 a.m. Therefore, it can be said with all certainty that she was not present prior to 10.30 a.m. and therefore her testimony is of no use to accept the submission of learned advocate that Abhay (PW1) has not visited his house prior to 10.30 a.m. from Rajawadi Hospital and made no inquiry with the appellant/accused No.1. As far as timing mentioned in the inquest panchanama, showing presence of P.W.1 in the hospital, at the most the inference can be drawn that at about 8.45 a.m., he was present in the hospital and identified the dead body. Similarly, the testimony of PSI-Khandvi (PW12) nowhere leads to draw inference that Abhay (PW1) had not visited house in the morning and made no inquiry with the appellant/accused No.1. It is pertinent to note that PSI-Khandvi (PW12) has deposed in the cross-examination that he had recorded statement of Abhay (PW1) in hospital at about 9.30 to 9.45 a.m. He has further admitted that after recording statement of Abhay (PW1), he came to know that it was a case of murder. It is pertinent to note that initially the case was registered as A.D.R. No. 70 of 2007. Thereafter, PSI-Khandvi visited the place of incident and carried out the panchanama (Exh.37), where he seized one towel, one piece of lungi with number of blood stains over it and one pillow. The panchanama (Exh.18) was carried out in between 13.00 hours to 14.00 hours.

21. If we peruse the evidence of Abhay (PW1), then on the day of incident i.e. on 14/06/2007 at about 11.30 p.m., he along with deceased-Vijay and appellant/accused No.1 had taken meal together. After finishing meal, Abhay (PW1) went to sleep on the mezzanine floor, which was provided with access from outside the room. Appellant and deceased-Vijay were alone present in the room after he left the room. On 15/06/2007 at about 6.30 a.m. the appellant/accused No.1 went to mezzanine floor and informed Abhay (PW1) that his brother was not getting up. He, therefore, came along with appellant in the room and tried to awake deceased-Vijay, but he did not receive any response from deceased-Vijay. He, therefore, called Santosh Desai-the neighbourer for help, who also tried to awake deceased-Vijay, but he too failed. Abhay (PW1) noticed the blood was oozing from the ear and froth was coming from the mouth of deceased-Vijay. He, therefore, carried deceased-Vijay to Rajawadi Hospital with the help of neighbourers. On examination, the medical officer present in hospital declared him dead. Doctor who examined deceased-Vijay expressed opinion that it was a case of throttling as there was scratches on the throat of Vijay. He, therefore, rushed to his house and made inquiry with appellant/accused No.1, who confessed before him that she caused the death of deceased. She has stated to him that the deceased had suspicion on her character. Due to this reason, she administered sleeping pills through milk to deceased and she put towel on the throat of the deceased and pressed his throat by thumb. After the disclosure made by appellant/accused No.1, Abhay (PW1) went to Police Station, Ghatkopar and lodged report. On the basis of complaint lodged, the offence u/s. 302 of I.P.C. came to be registered against appellant/accused No.1 vide C.R.No.230 of 2007 vide Exh.14.

22. Sahebrao (PW2)-the father of deceased and Rajani (PW7)-the mother of deceased have deposed that after they received phone call at about 6.30 a.m. from their son-Abhay (PW1), they started from Goregaon in Raigarh District to come to Mumbai. Sahebrao (PW2) has deposed that he went to Rajawadi Hospital and saw the dead body of deceased-Vijay with blood oozing from ears and the froth coming from his mouth. P.W.2 has further deposed that he reached to Rajawadi Hospital at about 10.30 a.m. Some time thereafter Abhay (PW1), who came back to hospital told him that Jyoti (appellant) had confessed to him about killing Vijay (deceased) by administering sleeping pills to him through milk and by throttling with towel and by hand. In the cross-examination, P.W.2 has deposed that the said fact was disclosed to him in between 11.00 a.m. to 12.00 noon. Thus, the testimony of P.W.1 finds corroboration from Sahebrao (PW2).

23. We have already discussed in forgoing paras the fact deposed by Waman Gaikwad (PW11)-the autopsy surgeon. Dr.Gaikwad (PW11) has specifically deposed that the deceased had died on account of asphyxia due to strangulation. He has further deposed that deceased might have died within two to four hours after taking meal. Postmortem report (Exh.45) reveals that semi-digested food was found in the stomach. Abhay (PW1) has deposed that they had finished the meal at about 11.30 p.m. and thereafter he went to mezzanine floor. Thus, considering the time of taking meal at 11.30 p.m., it can be said that the deceased was died in between 1.30 a.m. to 3.30 a.m. of intervening night of 14/06/2007 and 15/06/2007.

24. The report of Chemical Analyzer (Exh.54) has revealed that on examination of viscera Chlorpheniramine drug was detected in the contents of stomach, loop of intestine, pieces of liver, spleen and kidneys as well as the blood of the deceased-Vijay. In the contents of stomach, loop of intestine, pieces of liver, spleen and kidneys and in the blood, 1.5 m.g. 1.11 m.g. and 0.92 m.g. respectively the drug Chlorpheniramine was detected. C.A.Report (Exh.54) regarding viscera has confirmed this fact. Dr.Gaikwad (PW11)-the autopsy surgeon has categorically deposed that the quantity of "Chlorpheniramine" detected was fatal and may cause the death of person. He has further deposed that the tablet Avomine is an antihistamine drug and easily available in market. Promethazine is one of the ingredient of Avomine tablet. According to him, the quantity of 1 gm. of Avomine or Promethazine is fatal.

25. Prosecution has examined Dr.Rajendra Wakchaure (PW4) whose testimony is at Exh.21. He has deposed that on 12/06/2007, the appellant/accused No.1 visited him in his dispensary. She has disclosed her name as Mrs.Waghmare. She complained bout headache and further disclosed that she could not have proper sleep and she did not feel famish. After examination, he gave her Nimesulid tablet, Famotidine tablet, Antacid tablet and capsule B-Complex. He further asked her to purchase tablet Anxit 0.25 mg and syrup Cyprohepdine from market and gave prescription to that effect. He specifically asked her to show the medicine after purchasing the same. He has deposed that there was a Medical Shop by name Sanket Medical located at the distance of about 30 feet from his dispensary, which was then run by Sanjay Gaikar (PW5). Some time after the appellant left the dispensary, the owner of said medical shop came to his dispensary and told him that the patient to whom he has given prescription and who has disclosed her name as Mrs.Waghmare was demanding two strips of tablet Anxit 0.25 m.g, though prescription was for one strip containing 10 tablets. He has further informed Dr.Wakchaure that on the earlier day same lady visited his shop for purchasing rat killing poison. Due to this reason, he got suspicion against her. Dr.Gaikwad (PW11) instructed Mr.Gaikar (PW5) not to sell any medicine to said patient and retain the prescription with him. He also asked him to send that lady to him. He has further deposed that after some time Sanjay Gaikar (PW5) returned prescription to him. Thereafter, the appellant/accused again visited him and requested for sleeping pills. On her request, he gave three Avil 25 mg. tablets to her and asked her to take one in the morning, one in the noon and one in the evening and asked her to come again. On 14/06/2007 at about 10.45 a.m., the appellant accused again came to his dispensary and told him that she had sound sleep due to those tablets and demanded more tablets. He gave three Avil 25 mg. tablets to her. Thereafter, she left. P.W.4 has produced the register which he used to maintain in respect of the patients visited him in his dispensary on 12/06/2007 and 14/06/2007, which is at Exh.28. He has identified the appellant/accused as the same lady who visited his dispensary disclosing her name as Mrs.Waghmare. Sanjay Gaikar (PW5) whose testimony is at Exh.23, duly corroborated the testimony of Dr.Gaikwad (PW11) and identified the appellant/accused as same woman, who visited his shop.

26. Prosecution has examined Arun Jadhav (PW8)-the panch witness and proved the seizure of six tablets from the dispensary of Dr.Wakchaure and further proved seizure of copies of register maintained by Dr.Wakchaure in respect of patients pertaining to entries dated 12/06/2007 and 14/06/2007 i.e. Exh.28, seized vide seizure panchanama (Exh.29). The copies of register produced at Exh.28 reflects the entry in respect of patient with the name of Waghmare on 12/06/2007 and 14/06/2007. Thus, the evidence of P.W.4 is duly corroborated through testimony of Arun Jadhav (PW8) and copy of register of patients maintained by him.

27. Prosecution has examined Pandharinath Baban Gade (PW9)-the panch witness to memorandum statement (Exh.32) and recovery panchanama (Exh.33) of recovery of tablets made at the instance of appellant/accused No.1, pursuant to the disclosure statement made u/s.27 of the Indian Evidence Act. P.W.9 has deposed that on 18/06/2007, he was called at Police Station, Ghatkopar to act as a panch witness. He has deposed that in his presence and in presence of another panch witness, the appellant/accused No.1 made statement to show the place where she has kept the tablets. He has deposed that after recording of the memorandum statement, he along with another panch and the accused endorsed their signature on that panchanama. He has identified memorandum panchanama (Exh.32) as the same panchanama recorded in his presence on the basis of disclosure statement made by appellant/accused No.1. He has further deposed that after recording of memorandum panchanama, he along with another panch witness, the appellant/accused, PSI-Khandvi, PSI-Pawar and other staff members boarded in a jeep bearing No. Mh-01-183. The accused had shown the way. She carried them to Dattatraya Chawl located in the Indira Nagar locality. After reaching the place near Dattatraya Chawl, Indira Nagar, the appellant/accused No.1 asked to stop the jeep. All of them alighted from the jeep. Appellant/accused then taken them in Room No.13 in said Chawl where Sahebrao Malusare (PW2) and Rajani Malusare (PW7)-the father and mother of deceased were present. There was a staircase just adjacent to the Room No.13 providing access to mezzanine floor of that room. She carried them to mezzanine floor. She took out one ash colour suitcase kept at mezzanine floor. She opened the suitcase and after removing clothes lying in it she produced one small paper container kept at the base of the suitcase. In the container they found two small pills of white in colour and one strip containing one tablet. In the strip one tablet was missing. Police seized those tablets produced by the accused. The strip was of Promethazine 25 mg. Tablets. Those tablets were seized and sealed on the spot and then the panchanama was drawn which was signed by him, another panch, appellant/accused and police officer. He has identified the recovery panchanama (Exh.33) as same recovery panchanama made in his presence. He has further identified his signature over the labels affixed on the envelope.

28. Prosecution has examined Dipak Khandekar (PW3)-the panch witness in whose presence spot of incident was inspected by PSI-Khandvi and articles lying in the room which were seized. His testimony is at Exh.17. He has categorically deposed that on 15/06/2007 at 12.30 p.m. he was called in Dattatraya Chawl No.8, Indira Nagar, Ghatkopar i.e. in the house of Sahebrao Malusare. He has deposed that he was residing in another chawl i.e. the Chawl No.6 in same locality. At the time of panchanama, the appellant/accused-Jyoti was present in the room. In his presence, the police have found one towel (Article-A) which was faint green in colour (popati) with blood stains over it, one piece of cloth of lungi (Article-B) with blood stains over it which were lying on the washing machine by the side of bath room in that room and one pillow lying beneath the washing machine (Article-C) which were sealed and seized in his presence vide panchanama Exh.18. He has identified the signature over the panchanama and further identified the articles lying before the Court as same articles.

29. P.I.-Fulsingh Pawar (PW13) has deposed that he had forwarded all the muddemal properties i.e. articles seized from the house of appellant, the tablets recovered at the instance of appellant, the tablets recovered from the dispensary of Dr.Wakchaure, the clothes of deceased as well as appellant/accused, the blood samples of deceased as well as appellant/accused to Chemical Analyzer for analysis along with forwarding letter Exh.67. As per C.A.Report (Exh.70), the human blood of blood group A as that of deceased was detected over the towel and pillow as well as on the underwear of deceased. Similarly, the human blood was detected on the piece of lungi. As per C.A.Report (Exh.71), the blood of the deceased was found to be of blood group A. As per Exh. 68, the blood group of appellant/accused was also found to be of blood group A. Six tablets in envelope and one tablet in strip of Avomine 25 mg. were referred to Chemical Analyzer. As per C.A.Report-Exh.73, the tablets which were recovered from the dispensary of Dr.Wakchaure and two tablets in white envelope at the instance of appellant from the house of appellant the drug Chlorpheniramine was detected and in one tablet of Avomine 25 mg., the drug Promethazine was detected.

30. PSI-Khandvi (PW12)-the investigating officer has deposed that he had arrested the appellant/accused No.1-Jyoti vide arrest panchanama (Exh.39). Prosecution witness-Mangala (PW6) has deposed in her cross-examination that police took away appellant/accused No.1-Jyoti at about 11.30 a.m. Therefore, the inference can be drawn that the complaint was made prior to 11.30 a.m. and police have come to know the involvement of appellant/accused in the commission of offence although the FIR was registered after the confirmation of cause of death of deceased by autopsy surgeon. It is important to note that the dead body of deceased-Vijay was referred for postmortem to Dr.Gaiwkad (PW11) at about 2.10 p.m. On 15/06/2007. As per the postmortem report (Exh.48), the postmortem was started at about 2.55 p.m. It was concluded at about 4.10 p.m on 15/06/2007. Thus, it can be inferred that offence was registered after the confirmation of death of deceased as homicidal, that too due to strangulation. Only for the reason that the police have registered the offence after receipt of postmortem report, the inference cannot be drawn that no extra-judicial confession was made by appellant/accused as deposed by P.W.1.

31. Thus, if we consider the testimony of the aforesaid witnesses, then the testimony of Abhay (PW1) finds due corroboration from the testimonies of Sahebrao (PW2), Dr.Wakchaure (PW4), Sanjay Gaikar (PW5), Arun Jadhav (PW8) and Pandharinath Gade (PW9) and Dr.Gaikwad (PW11), PSI-Khandvi (PW12) and PI-Fulsingh Pawar (PW13) on the point of extra-judicial confession made by appellant/ accused No.1 to Abhay (PW1). It provides guarantee to accept the testimony of Abhay (PW1) as reliable and truthful. Nothing has been extracted in the cross-examination of said witnesses examined by the prosecution to shake their testimonies. It is pertinent to note that the witnesses examined by the prosecution had no animus or grudge against the appellant/accused to depose against her. The testimonies of these witnesses are found to be most natural and reliable.

32. In view of the discussion made in the foregoing paras, we have no hesitation in reaching to the conclusion that the testimony of Abhay (PW1) can be safely relied as a proof of confession made by appellant accused to him on 15/06/2007. As discussed in the forgoing paras, the testimony of P.W.1 found due corroboration from the other witnesses examined by the prosecution, which guarantees the truthfulness and credibility of P.W.1. We are, therefore, inclined to accept the extra-judicial confession made by appellant to Abhay (PW1) as an admissible evidence to be relied to form it as basis for conviction of the appellant.

33. Mr. Shirodkar-the learned counsel for the appellant strenuously argued that the entire case of the prosecution is based on circumstantial evidence and therefore, it was incumbent upon the prosecution to have established motive on the part of the appellant in commission of offence. He has submitted that Abhay (PW1) has deposed that the relations between the appellant and deceased were cordial and there was no dispute amongst them. Prosecution has not adduced any evidence to establish motive on the part of appellant to cause the murder of the deceased. In support of his contention, he has relied on the ruling reported in (1997) 7 Supreme Court Cases 156, Tanviben Pankajkumar Divetia v. State of Gujarat. On the other hand, the learned A.P.P. for the State has argued that the prosecution has examined Sahebrao (PW2) i.e. father of deceased and Rajani (PW7) i.e. mother of deceased, who have testified before the Court on the point of motive.

34. In order to appreciate the submissions advanced, we have scrutinized the testimony of Sahebrao (PW2) and Rajani (PW7). Sahebrao (PW2) has deposed that on 03/06/2007, Jyoti (appellant) came to their house in Mumbai after marriage. On 05/06/2007 at about 8.00 p.m. he received phone call from Vijay (deceased). He asked him to come to house of his sister at Ghatkopar. He, therefore, went to house of his daughter along with his wife. On inquiry, Vijay (deceased) told them that they had cheated him as Jyoti (appellant) has disclosed to him that she had love affair with a boy, who was already married. She also told him that if he had any affair with any girl, then he should marry with her as she cannot cohabit with him nor cohabit with that boy with whom she had an affair and she should be allowed to reside at her native place. He, therefore, asked Vijay to think over the matter and to make inquiry about her affair and then they will talk with her parents. On that day, Vijay (deceased) and his brother slept on the mezzanine floor and Jyoti (appellant) slept with his wife Rajani (PW7). On 07/06/2007 and 08/06/2007, Vijay (deceased) told him that he had inquired with Jyoti and she disclosed to him that she had no affair with anybody, but in order to ascertain as to whether he had any affair, she developed story of having affair with someone. On 08/06/2007, as his brother expired, he left for his village with his family members including Vijay (deceased) and appellant/accused-Jyoti. In the cross-examination, P.W.2 has admitted that till 14/06/2007, he had not heard about any differences between Vijay (deceased) and appellant/accused-Jyoti. In the cross-examination, P.W.2 has deposed that house of his daughter was adjoining to the house of his brother-in-law-Madhukar Jadhav and in the discussion at the house of his daughter besides him, his wife, Madhukar Jadhav, daughter Sheetal and her husband-Rajesh were present. He has denied the suggestion that he went there on the call of Madhukar Jadhav and his son-in-law-Rajesh. He has denied the suggestion that in the discussion, beside him Madhukar Jadhav, Rajesh and Vijay were only present. Thus, if we consider the evidence of Sahebrao (PW2) in totality then the prosecution has established the fact that on 05/06/2007, the meeting had taken place at the house of daughter of Sahebrao (PW2) in connection with the affair of Jyoti i.e. appellant with someone else as deposed by P.W.2.

35. Smt.Rajani Malusare (PW7)-the mother of the deceased has deposed that on 05/06/2007, she herself and his husband were called at Ghatkopar. In the meeting, Vijay (deceased) disclosed that he was cheated by them because he came to know from Jyoti that she had an affair with a boy and she could not live without that boy. She further deposed that Vijay (deceased) told them that Jyoti (appellant) would allow him to perform marriage with other girl and she will search girl for him. She has further deposed that on 07/06/2007 at about 9.30 a.m. to 10.00 a.m. two boys came to her house. One amongst them was the accused No.2. Jyoti (appellant) introduced accused No.2 as her cousin and both of them went to mezzanine floor. They came down after 15 to 20 minutes. She gave tea to accused No.2 and then he left the house. She has further deposed that on 08/06/2007, Vijay (deceased) told that Jyoti (appellant) had told him about her love affair just to ascertain whether he had any love affair and she had no affair with any boy. In the cross-examination, she has admitted that first time she came to know in the house of Madhukar that appellant/accused No.1 had love affair with one boy. Although in the cross-examination, some omissions and contradictions have been brought on record, but looking to the over all evidence no much weightage can be given to such omissions and contradictions as same are not inconsistent with the material fact deposed by P.W.7 as regards the meeting which had taken place on 05/06/2007. The fact as deposed by P.W.7 were duly stated by her in her statement recorded on 15/06/2007.

36. If we consider the testimony of P.W.2 and P.W.7 in the light of extra-judicial confession made by the appellant to Abhay (PW1), then it can safely stated that the prosecution has established the motive on the part of the appellant in commission of offence. We have already discussed in the forgoing paras the testimonies of Doctor-Wakchaure (PW4) and Sanjay Gaikar (PW5) that the appellant has thoroughly planned and made preparation for causing the murder of deceased. She has procured tranquilizer tablets which were found to have been used in commission of offence. Abhay (PW1) has specifically deposed that on 14/06/2007 at about 7.30 p.m. the appellant/accused had asked him to bring milk and therefore, he brought the same. As per the extra-judicial confession made by appellant to P.W.1, she gave sleeping pills to Vijay through milk. The report of Chemical Analysis (Exh.54) has confirmed the fact of detection of Chlorpheniramine in the viscera of deceased that too in excessive quantity. We are, therefore, of the view that the prosecution has established the strong motive on the part of appellant in causing the murder of the deceased. In view of the conclusion to which we have arrived that the prosecution has established the motive on the part of appellant in commission of offence, the rulings relied by the learned counsel for the appellant have no bearing and applicability in the light of facts of present case.

37. Mr.Shirodkar-the learned advocate for the appellant has further argued that the entire case of the prosecution is based upon the circumstantial evidence and therefore, it was incumbent upon the prosecution to have established each and every incriminating circumstance by reliable and clinching evidence. He has further submitted that it is well settled position in law that in a case based upon circumstantial evidence, the prosecution must establish the guilt of accused beyond all reasonable doubts and Court must be cautious in not allowing the suspicion to take the place of legal proof. The learned counsel by referring the evidence on record further submitted that the circumstance that the deceased and appellant were alone present in the room, as relied by the prosecution, is not solely sufficient to base the conviction. It has been brought through the testimony of Abhay (PW1) that the appellant was undergoing treatment. Few days prior to the incident, she was lying admitted in the hospital at Satara. In defence, the appellant has examined Dr.Rahate who has supported the case of the appellant. The alleged recovery of tablets at the instance of appellant was shown to have been made after about three days of the incident and that too from the premises which was not locked. The recovery has not been proved. He has submitted that the prosecution has not adduced any cogent and convincing evidence to show that the appellant and the deceased were alone present in the room and during the night time no other person had entered into the room. He has therefore, submitted that the prosecution has failed to establish chain of circumstances so as to prove the complicity of appellant in commission of offence beyond reasonable doubt. He has submitted that the trial court has erred in convicting the appellant. The reasons and findings recorded by the learned Additional Sessions Judge are based upon conjecture and surmises. The conviction of the appellant is based upon improper appreciation of evidence on record and merely on the basis of suspicion. He has placed reliance on rulings reported in (2007) 3 Supreme Court Cases 1 : [2007 ALL MR (Cri) 1166 (S.C.)], Ram Singh v. Sonia & Ors., (1997) 7 Supreme Court Cases 156, Tanviben Pankajkumar Divetia v. State of Gujarat and (2007) 1 Supreme Court Cases (Cri.) 732 : [2007 ALL SCR 2094], Vikramjit Singh @ Vicky v. State of Punjab.

38. On the other hand, the learned A.P.P.for the state has submitted that the prosecution has adduced cogent, convincing, reliable and clinching evidence to establish the chain of incriminating circumstances to prove the guilt of the appellant beyond reasonable doubt. The learned A.P.P. has submitted that the deceased was found to have been died on account of asphyxia due to strangulation in a room and that too on the bed on which he was sleeping along with appellant in the intervening night of 14/06/2007 and 15/06/2007. The fact that how deceased was strangulated while he was sleeping by the side of the appellant on the bed being within the exclusive knowledge of appellant, the appellant has failed to explain the same. The prosecution has established that the death of the deceased was homicidal and due to strangulation. The postmortem report has confirmed the existence of ligature mark around the neck. Through report of chemical analyzer, the prosecution has established the existence of drug Chlorpheniramine in the stomach of the deceased and that too in fatal quantity. Prosecution has proved the preparation made by appellant in causing the death of the deceased by examining Dr.Wakchaure (PW4) and Sanjay Gaikar (PW5) as regards to procuring tranquilizer tablets. Prosecution has proved the recovery of tablets at the instance of appellant from her house. Prosecution has also established the existence of human blood of blood group 'A' as that of deceased on the towel, piece of lungi and pillow used in commission of offence. Prosecution has also established the motive on the part of the appellant in commission of offence. The learned A.P.P. has further submitted that the conduct of the appellant also leads to draw inference of her complicity in commission of offence. She has pointed out that although the deceased was carried to Rajawadi hospital with a blood oozing from nose and ear and froth was coming from mouth, the appellant remained at home and she had not visited the hospital.

39. It is well settled principle that where the case is entirely based upon circumstantial evidence, the court must take great care while evaluating circumstantial evidence and ensure that the circumstances on which the prosecution relies are fully consistent with sole hypothesis of the guilt of the accused. When a case rests on circumstantial evidence, such evidence must satisfy the following tests;

01) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

02) those circumstances should unerringly point towards the guilt of the accused;

03) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else;

04) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence.

In the case of Mohd. Mannan @ Abdul Mannan vs. State of Bihar, (2011) 5 SCC 317 : [2011 ALL SCR 2857], the Apex Court has reiterated the principles to be borne in mind while dealing with a case based upon circumstantial evidence in evaluation of the evidence adduced in the case. The apex court has observed as under :

"In our opinion to bring home the guilt on the basis of circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in a fanciful manner. In order to sustain conviction circumstantial evidence must be complete and must point towards the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard-and-fast rule can be laid down to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case."

40. If we consider the judgment of the trial court, then beside the extra-judicial confession made by appellant/accused, the learned Additional Session Judge has relied upon the following incriminating circumstances to convict the appellant for committing offence u/s. 302 of IPC.

(a) In the intervening night of 14/06/2007 and 15/06/2007, the appellant and deceased were alone present in the room and deceased was sleeping on bed along with the appellant.

(b) On 15/06/2007 at about 6.00 to 6.30 a.m., the deceased was found in the room with blood oozing from nose and ear and froth coming from the mouth.

(c) On 15/06/2007, while the deceased was taken to Rajawadi Hospital, where he was declared as already dead.

(d) The cause of the death of deceased was found to be asphyxia due to strangulation associated with other bodily injuries.

(e) The homicidal death of deceased was found to have caused in between 1.30 a.m. to 3.30 a.m. in the intervening night of 14/06/2007 and 15/06/2007.

(f) As per the report of Chemical Analyzer, in the contents of stomach, small intestine, spleen, kidney and blood, the drug Chlorpheniramine was found in excessive quantity.

(g) On the articles recovered from the room i.e. towel, pillow and the underwear of the deceased, the human blood of group 'A' as that of deceased was detected.

(h) On 12/06/2007 and 14/06/2007, the appellant had approached Dr.Wakchaure disclosing her name as Mrs.Waghmare to secure the tranquilizer tablets on the pretext of sleep problem and obtained the tablets having sedative effect.

(i) Recovery of tablets at the instance of appellant from the suitcase kept on mezzanine floor of the room.

(j) Recovery of towel, piece of lungi and pillow with bloodstains from the room where the deceased was found to be dead.

(k) Motive on the part of appellant in causing the death of deceased.

(l) Conduct of appellant after the deceased was found by her side of the bed with a blood oozing from nose and ear and froth coming from his mouth.

(m) Non-explanation of incriminating circumstances appearing against the appellant/accused.

41. In order to appreciate the submissions advanced, we have thoroughly scrutinized the evidence adduced by the prosecution and the reasons and findings recorded by the learned Additional Sessions Judge to hold the appellant guilty of offence u/s. 302 of IPC. On analyzing the reasons and findings recorded by the trial court, in the light of evidence on record, we are of the view that the prosecution has adduced reliable and clinching evidence to establish above mentioned circumstances. The circumstances established by prosecution through the evidence adduced form complete chain of events from which the only irresistible conclusion about the guilt of accused can be drawn and no other hypothesis against the guilt is possible. In or view, the circumstances so established on record rules out the possibility that the person other than the accused might have committed the offence.

42. We have already discussed in forgoing paras the evidence adduced by the prosecution to establish the above referred circumstances relied by the prosecution to conclusively establish the guilt of the appellant. We have also discussed in forgoing paras the facts which are not in dispute. The appellant has not disputed that the deceased has died on account of homicidal death due to strangulation in the intervening night of 14/06/2007 and 15/06/2007. The fact is also not in dispute that the appellant was sleeping on the bed by the side of deceased in the intervening night of 14/06/2007 and 15/06/2007. As per Dr.Gaikwad-the autopsy surgeon (PW11), the death of deceased was occurred within two to four hours after taking last meal. P.W.1 has deposed that he along with appellant and deceased had finished meal at about 11.30 p.m. The appellant has found at about 6.00 a.m. to 6.30 a.m. that deceased was not awakening. Thus the death of the deceased was occurred in between 1.30 a.m. to 3.30 a.m. in the intervening night of 14/06/2007 and 15/06/2007. The fact is not in dispute that on 15/06/2007, the deceased was taken to Rajawadi Hospital where he was declared as dead and on conducting postmortem, the cause of death of deceased was found to be asphyxia due to strangulation associated with other bodily injuries. Report of Chemical Analyzer at Exh.54 has established that drug Chlorpheniramine was detected in excessive quantity in the contents of stomach, small intestine, spleen, kidney and blood of the deceased. Prosecution has further proved that on 15/06/2007, the panchanama of the place of incident was made in presence of panchas by PSI-Khandvi. At that time, one towel, one piece of lungi and one pillow were found in the room stained with blood. Through the report of Chemical Analyzer, prosecution has proved that they were found to be stained with blood of group 'A' as that of deceased. So also, on the underwear of the deceased, the blood of group 'A' was found. We have already discussed in detail the testimony of Dr.Wakchaure (PW4) and Sanjay Gaikar (PW5). Dr.Wakchaure (PW4) has specifically deposed that on 12/06/2007 and 14/06/2007, the appellant had approached him for treatment by disclosing her name as Mrs.Waghmare. She has obtained the Avomine tablets which causes sedative effect. Sanjay Gaikar (PW5) has deposed that although Dr.Wakchaure has given prescription to provide one strip of tablet-Anxit, the appellant has demanded two strips of said tablets and earlier she had visited his medical store for rat poison. As he developed suspicion against the appellant, he went to Dr.Wakchaure and brought the fact to his notice. Prosecution has proved the recovery of tablets at the instance of appellant which were found to have been kept in the suitcase. Prosecution has also proved the recovery of six tablets from Dr.Wakchaure. As per C.A.Report (Exh.73) in six tablets which were seized from Dr.Wakchaure and two tablets recovered at the instance of appellant, the drug Chlorpheniramine was detected in its contents. In another strip in which there was one tablet Avom-25, the drug Promethazine (Avomine) was detected. Thus the C.A.Reports (Exh.54 and 73) co-relates the appellant in administration of those tablets to deceased. P.W.1 has deposed that on 14/06/2007, the appellant had asked to bring milk and therefore, he brought the milk. As per the extra-judicial confession made by appellant to Abhay (PW1), she had administered the tranquilizer tablets through milk and the deceased was strangulated while he was in effect of tranquilizer tablet administered to him by the appellant. From the witnesses examined by the prosecution, it has been established that the appellant has not visited the hospital and she remained at home. As per the statement in defence filed in writing by the appellant, she has stated that, she learnt about the death of the deceased in hospital. Thus, conduct of the appellant also operates as strong incriminating circumstance to establish the complicity of appellant. The appellant has failed to explain the circumstance as to how the deceased has sustained the injuries which includes the death caused by strangulation while the deceased was sleeping along with her on same bed. Thus the chain of circumstances established by the prosecution by leading cogent, convincing and reliable evidence has established the complicity of appellant in commission of offence beyond reasonable doubt. The circumstances established by the prosecution by leading clinching evidence rules out the possibility that any person other than the appellant committed the homicidal death of the deceased.

43. The evidence on record shows that during the intervening night, the appellant and deceased were alone in the room. In such case, section 106 of the Indian Evidence Act, comes into play. In such case, the accused has to explain how the deceased sustained injuries and died. In this connection, we may refer to Section 106 of the Evidence Act. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underlies Section 106 of the Evidence Act can be applied in such cases. In the case of State of Rajasthan Vs. Kashi Ram reported in (2006)12 SCC 254 : AIR 2007 SC 144 : [2007 ALL MR (Cri) 525 (S.C.)], the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain.

44. Thus considering the evidence adduced by the prosecution in totality which has proved the extra-judicial confession made by appellant to Abhay (PW1), the motive established on the part of the appellant in commission of the offence and chain of circumstances established by the prosecution by leading cogent and convincing evidence, we have no hesitation to hold that the prosecution has proved it's case beyond reasonable doubt. We have found no illegality, infirmity and perversity in the judgment and order of trial Court. The reasons and findings recorded by the learned Additional Sessions Judge are based upon due appreciation of evidence on record. No case of miscarriage of justice has been made out by the appellant so as to interfere with the judgment and order passed by the trial Court. We are, therefore, of the view that appeal is devoid of any substance and merit therein. In the result, the appeal deserves to be dismissed. Hence, the appeal is dismissed.

Appeal dismissed.