2014 ALL MR (Cri) 3626
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.K. TAHILRAMANI AND A.S. GADKARI, JJ.

Sukhdeo Kisan Borhade Vs. The State of Maharashtra

Criminal Appeal No.1381 of 2012

1st August, 2014

Petitioner Counsel: Ms. ROHINI MADHAV DANDEKAR
Respondent Counsel: Mrs. A.S. PAI

Penal Code (1860), Ss.300, 324, 309 - Evidence Act (1872), S.106 - Murder - Evidence and proof - Prosecution case that accused suspecting character of his wife assaulted her with knife and also caused injuries to this son and attempted to commit suicide by inflicting himself with a knife - Evidence of injured son corroborated with evidence of other witnesses and also with medical evidence - Evidence showing that accused and deceased were only two persons in kitchen when incident occurred - Explanation by accused that deceased sustained injury while assaulting him not corroborated by medical evidence - Accused failed to discharge burden cast upon him by S.106 of Evidence Act - Evidence of doctor establishes that accused assaulted himself with knife and tried to commit suicide - Conviction of accused for offences punishable under Ss.302, 324 and 309 is proper. (Paras 9, 11, 12, 13)

Cases Cited:
State of Rajasthan Vs. Kashi Ram, 2007 ALL MR (Cri) 525 (S.C.)=(2006)12 SCC 254 : AIR 2007 SC 144 [Para 9]


JUDGMENT

SMT. V. K. TAHILRAMANI, J. :- This appeal is preferred by the appellant - original accused against the judgment and order dated 29.10.2012 passed by the learned Additional Sessions Judge, Nashik in Sessions Case No. 9 of 2012. By the said judgment and order, the learned Session Judge convicted and sentenced the appellant as under:-

Convicted u/S.
Sentenced to
302 IPC Imprisonment for life & fine of Rs. 2000/-, in default R.I. for 3 months.
324 IPC Imprisonment for 1 Year and fine of Rs. 500/- in default S.I. for 1 month.
309 IPC Imprisonment for 6 months and fine of Rs. 500/- in default, S.I. for 15 days.

The learned Sessions Judge directed that the sentences of imprisonment shall run concurrently.

2. The prosecution case briefly stated, is as under:

(a) Deceased Sitabai was the wife of the appellant. PW 1 Pravin, PW 5 Kishor, Sandeep and Shivaji were the sons of the appellant and deceased Sitabai. They were all residing together at Manegaon. There used to be constant quarrels between the appellant and his wife Sitabai as the appellant used to suspect the character of his wife Sitabai. Even if Sitabai went outside the house, the appellant used to suspect her character. On account of this suspicion, the appellant used to beat Sitabai.

(b) The incident occurred on 3.6.2011. On that day, as usual, Sitabai woke up early in the morning for preparing tiffin for her sons. At that time, the appellant assaulted his wife Sitabai with a knife on various parts of the body. This happened in the kitchen of the house. On hearing noise, PW 1 Pravin - the son of Sitabai and the appellant, woke up. He saw his brother Sandeep and Kishor were knocking on the door of the kitchen. The door of the kitchen was locked from inside. Pravin also started knocking on the door of the kitchen. He heard the voice of his mother shouting 'aai ga' from inside the kitchen. Then Pravin went outside the house and from outside the house, he went towards the window of the kitchen. On looking through the window of the kitchen, he saw that there was knife in the hand of his father. Banyan of his father was stained with blood. His mother Sitabai was lying on the ground with her face towards the sky. His father i.e the appellant was not opening the door, therefore, Pravin picked up a big stone from outside and struck the stone on the kitchen door. Due to this, the door of the kitchen was opened. Then Pravin, his brothers PW 5 Kishor and Sandeep all went into the kitchen. They saw knife in the hands of their father. There were blood stains on the floor. There was also hot water on the floor. Cooked 'Shepu' vegetable was also lying on the floor. They saw injuries on the body of their mother. Blood was oozing from the injury on her neck. Pravin tried to wake up his mother but she did not get up. He then got angry. On seeing this, his father i.e the appellant assaulted Pravin with the knife on the left side of chest. His father caught him, however, Pravin escaped from his hands. While trying to come out of the clutches of his father, Pravin sustained injuries on his left upper arm due to knife. Pravin then bent down to see his mother. That time, his father tried to assault Pravin on the right side of his waist. His brother PW 5 Kishor saw this and caught the knife in the hands of his father. Thereafter, PW 5 Kishor locked his father inside the kitchen from outside. Pravin took his mother to the house of PW 6 Arun Sonawane who was possessing a Maruti Omni. PW 1 Pravin told Arun Sonawane that his father had assaulted his mother and she has to be taken to the hospital whereupon Arun Sonawane agreed. Sitabai was taken to Yashwant Hospital, Sinnar, in the vehicle of PW 6 Arun Sonawane. The Doctor examined Sitabai and informed that she had expired. Pravin lodged F.I.R. (Exh. 16). Thereafter, investigation commenced.

(c) The dead body of Sitabai was sent for postmortem. PW 9 Dr. Kacheriya performed the postmortem on the dead body of Sitabai. He found 11 injuries on her person out of which 10 were incised wounds. The cause of death was death due to lung injury due to stab injury to the chest. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

3. Charge came to be framed against the appellant under Section 302 of IPC for causing the death of his wife Sitabai and under Section 324 for causing hurt with knife to his son Pravin. Charge was also framed under Section 309 of IPC because the appellant attempted to commit suicide by inflicting injuries on himself with a knife. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.

4. We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant assaulted his wife Sitabai with a knife and caused her death and during the said incident, he also caused injuries to his son Pravin with knife.

5. The conviction is mainly based on the evidence of PW 1 Pravin who is the son of the appellant and the deceased. PW 1 Pravin has stated that he was residing at Manegaon along with his parents and brothers. There used to be constant quarrels between the appellant and his wife Sitabai as the appellant used to suspect the character of his wife Sitabai. Even if Sitabai went outside the house, the appellant used to suspect her character. On account of this suspicion, the appellant used to beat Sitabai. PW 1 Pravin has stated that the incident occurred on 3.6.2011. On that day, as usual, Sitabai woke up early in the morning for preparing tiffin for her sons. At that time, the appellant assaulted his wife Sitabai with a knife on various parts of the body. This happened in the kitchen of the house. On hearing noise, Pravin woke up. He saw his brother Sandeep and Kishor were knocking on the door of the kitchen. The door of the kitchen was locked from inside. Pravin also started knocking on the door of the kitchen. He heard the voice of his mother shouting 'aai ga' from inside the kitchen. Then Pravin went outside the house and from outside the house, he went towards the window of the kitchen. On looking through the window of the kitchen, he saw that there was knife in the hand of his father. Banyan of his father was stained with blood. His mother Sitabai was lying on the ground with her face towards the sky. His father i.e the appellant was not opening the door, therefore, Pravin picked up a big stone from outside and struck the stone on the kitchen door. Due to this, the door of the kitchen was opened. Then Pravin, his brothers PW 5 Kishor and Sandeep all went into the kitchen. They saw knife in the hands of their father. There were blood stains on the floor. There was also hot water on the floor. Cooked 'Shepu' vegetable was also lying on the floor. They saw injuries on the body of their mother. Blood was oozing from the injury on her neck. Pravin tried to wake up his mother but she did not get up. He then got angry. On seeing this, his father i.e the appellant assaulted Pravin with the knife on the left side of chest. His father caught him, however, Pravin escaped from his hands. While trying to come out of the clutches of his father, Pravin sustained injuries on his left upper arm due to knife. Pravin then bent down to see his mother. That time, his father tried to assault Pravin on the right side of his waist. His brother PW 5 Kishor saw this and caught the knife in the hands of his father. Thereafter, PW 5 Kishor locked his father inside the kitchen from outside. Pravin took his mother to the house of PW 6 Arun Sonawane who was possessing a Maruti Omni. Pravin told Arun Sonawane that his father had assaulted his mother and she has to be taken to the hospital whereupon Arun Sonawane agreed. Sitabai was taken to Yashwant Hospital, Sinnar, in the vehicle of PW 6 Arun Sonawane. The Doctor examined Sitabai and informed that she had expired. Pravin lodged F.I.R.

6. The evidence of PW 1 Pravin is corroborated by the evidence of his brother PW 5 Kishor. Kishor has stated that the appellant is his father and deceased Sitabai was his mother. Kishor has stated that he had three brothers i.e PW 1 Pravin, Sandeep and Shivaji. Kishor has stated that there used to be quarrels between his father and mother. His father used to raise suspicion about the character of their mother. Even if any person came to the house, after that person left the house, his father used to assault his mother. Kishor has stated that the incident occurred on 3.6.2011 at about 6.30 a.m. when he was sleeping in the first room. At that time, his brothers Pravin and Sandeep, his father and mother were present in the house. Kishor heard loud noise of his mother, hence, he woke up. Said noise came from the kitchen room. He saw that his father and mother both were not present in the first room. When Kishor tried to open the door of the kitchen, it did not open. The kitchen door was closed from inside. Because of the noise, his two brothers woke up and were knocking on the kitchen door and asking his father to open the kitchen door. However their father did not open the kitchen door. While Kishor was knocking on the door and asking his father to open the door, the elder brother PW 1 Pravin went outside the house to look into the kitchen from the window of the kitchen. Pravin came back in the house and informed that he saw his father assaulting their mother with knife. Pravin brought one big stone from outside and struck the same on the kitchen door, because of this, the kitchen door opened. Kishor then went inside the kitchen. He saw his mother was lying in a pool of blood on the floor and his father was standing. He saw injuries on the body of mother. Hot water as well as cooked vegetable were lying on the floor. When Kishor and his brother Sandeep were lifting their mother, at that time, his father assaulted PW 1 Pravin with a knife. Due to this, Pravin sustained injuries on his chest and hand. Thereafter, they closed the door of the kitchen. At that time, their father was inside the kitchen. Pravin lifted his mother on his shoulder and took him towards the vehicle of PW 6 Sonawane. In the said vehicle, they took Sitabai to the hospital. There they were informed that their mother had expired. Thus, the evidence of both these witnesses shows that when Sitabai was shouting, at that time, Sitabai and the appellant were both in the kitchen. The door of the kitchen was closed from inside and no one else was in the kitchen at that time. The evidence further shows that Sitabai was lying with numerous injuries on her person and the appellant was seen holding a knife in his hand.

7. It is the prosecution case that the appellant assaulted his wife Sitabai with a knife and caused her death. The dead body of Sitabai was sent for postmortem. PW 9 Dr. Kacheriya conducted the postmortem on the dead body of Sitabai. On external examination, he found following injuries on the dead body of Sitabai:-

(1) Incised wound over left mandibular region of face, 3 x 2 x 1 & 1/2 cms, injury was opening into oral cavity;

(2) Incised wound over right cheek, 3 x 2 x 1 1/2 cms, opening into oral cavity;

(3) Incised wound at left upper arm, lower third region anterior aspect, 4 cm x 2 cm x 1 cm;

(4) Incised wound over left shoulder anteriorly at lateral end of clavicular region 3 x 2 x 1 cms;

(5) Stab wound over chest at sternal region; mid region transversely going, 3 x 2 cm and opening into thoracic cavity;

(6) Incised wound just below of wound No. 5 over chest sternal region 2 x 1 x 1/2 cm;

(7) Incised wound over left chest laterally below axillary region 2 x 1 x 1 cm;

(8) Incised wound over right thigh laterally upper third region 2 x 1 x 1 cm;

(9) Incised wound over left lower leg anteriorly, lower third region, transversely going 3 x 1 x 1 cm;

(10) Vertically going incised wound over back at level of T/10 Vertebra 3 x 1 x 1 cm;

(11) Burn mark noted over back totally; over buttocks, posterior thighs.

According to Dr. Kacheriya, all the above injuries were ante mortem injuries. Injury Nos. 1 to 10 are caused due to hard and sharp object. Injury No. 11 is burn injury, possible due to hot fluid. There was fracture of right 4th rib at parasternal junction.

On internal examination of thorax, Dr. Kacheriya noticed the right side pleura was torn and right lung was incised (cut) at middle region. There was bleeding within thoracic cavity.

According to Dr. Kacheriya, the cause of death is due to lung injury due to stab injury in chest which is mentioned above as Injury No. 5. According to Dr. Kacheriya, Injury No. 5 is a fatal injury which caused the death of Sitabai. In the opinion of the Doctor, the injuries are possible by knife (Article A) and the injury No. 11 i.e burn injury can be caused if a person comes in contact with hot water or hot fluid of vegetable.

8. PW 9 Dr. Kacheriya also examined PW 1 Pravin. Dr. Kacheriya has stated that Pravin gave history of assault on 3.6.2011 at about 6.00 a.m. at Manegaon by his father with knife. Upon examination, Dr. Kacheriya found following injuries on Pravin:-

(1) Transversely going incise wound on left upper arm medially at lower third region 5 x 0.3 cms;

(2) Semilunarly going superficial incise wound over chest, starting from left mid chest parasternal region upto xipsternal end, 10 x 0.3 cms, edges tapering at ends;

(3) Incised laceration over right foot situated laterally mid third region 2 x 1/2 cm.

Dr. Kacheriya opined that the injuries were caused by hard and sharp object. These injuries were simple in nature. Dr. Kacheriya stated that the injuries on the person of Pravin are possible due to knife (Article A). Thus, the medical evidence fully corroborates the case of the prosecution that Sitabai as well as Pravin were assaulted with a knife.

9. The evidence on record shows that the appellant and the deceased were the only two persons in the kitchen when the incident occurred. In such case, the appellant 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 principle which underlies Section 106 of the Evidence Act can be applied in such cases. In the case of State of Rajasthan Vs. Kashi Ram (2006)12 SCC 254 : AIR 2007 SC 144 : [2007 ALL MR (Cri) 525 (S.C.) : 2007 ALL MR (Cri) 286 (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.

10. No doubt, the appellant has tried to give explanation about the injuries sustained by Pravin as well as Sitabai by examining himself as a defence witness. The appellant has examined himself as D.W.1. The appellant has stated that on 3.6.2011, he woke up from sleep in the morning at 5.45 a.m. He asked for tooth powder from his wife Sitabai in the kitchen room. Sitabai started quarrelling with him. She started abusing the appellant saying that the appellant was not doing any work and eating food by sitting idle. At that time, Sitabai had cut the vegetable and kept the same for boiling. After the quarrel, Sitabai assaulted the appellant by means of knife in her hand which was used for cutting vegetable. Sitabai assaulted the appellant on his stomach. While assaulting the appellant, Sitabai sustained injury on her little finger of right hand, hence she shouted "aai ga".

The appellant has further stated that thereafter, his sons Pravin and Kishor came running in the kitchen room, Sitabai caught hold of the legs of the appellant and his sons started assaulting him with fists and kicks. The appellant was assaulted on his chest and back by fists and kicks. The appellant took the knife used for cutting vegetables which was lying in the kitchen room. At that time, both the sons started to go out from the kitchen room. At that time, Sitabai said that that "aj yache kamach dokyat dagad takun karun taku." Then Pravin went outside to bring a stone. Before Pravin came back with stone, the appellant lifted the knife used for cutting vegetable lying besides him. At that time, Kishor saw that the blood was oozing out from the injury of the stomach of the appellant. Kishor went outside. Then, the appellant assaulted Sitabai with the knife. Thereafter Pravin came inside the kitchen with stone. At that time, Sitabai was lying quiet. Thereafter, Pravin, Kishor and Sandeep lifted Sitabai out of kitchen room in the front room. They latched the door of kitchen room from outside. The appellant was lying in kitchen room in unconscious condition.

11. It is the specific case of the appellant that when Sitabai assaulted the appellant, she sustained injuries on little finger of the right hand due to which she shouted, "aai ga". This story of the appellant is not corroborated by the medical evidence. There is no injury found on the little finger of the right hand of Sitabai. This clearly falsifies the case of the appellant. The sequence of the events as stated above by the appellant is that his wife assaulted him with a knife. While assaulting him, she sustained injury on her little finger, hence, she shouted "aai ga". Thereafter, his son Pravin and Kishor came running in the kitchen room. Thereafter, Sitabai caught hold of his legs and his sons assaulted him. Then the appellant took a knife in his hand. At that time, both the sons started to go out of the kitchen room. Sitabai stated that the appellant should be killed by hitting him on the head with a stone. Pravin then went outside to bring stone. Then the appellant lifted the knife. At that time, Kishor went outside. Thereafter, the appellant assaulted Sitabai with the knife. However, all the evidence of the appellant in his examination-in-chief is falsified by his admission in his cross-examination. In his cross-examination, the appellant has stated that at the time of the incident, when his sons Pravin, Sandeep and Kishor came in the kitchen "for the first time", at that time, Sitabai was dead. Thus, the entire story that the sons came into the kitchen, Sitabai caught hold of the legs of the appellant and his sons assaulted him, thereafter, his sons went outside the room, thereafter the appellant assaulted Sitabai, is falsified. We find that the evidence of the appellant does not inspire confidence. Thus, through the evidence of PW 1 Pravin and PW 5 Kishor, the prosecution has proved that it was the appellant who assaulted his wife Sitabai with a knife and caused her death and in the course of the very same incident, he caused injuries to his son Pravin.

12. The appellant has also been convicted under Section 309 of IPC as he attempted to commit suicide by inflicting injuries on himself with a knife. Soon after the incident, the appellant was arrested and he was taken by the police to the Civil Hospital at Nasik. PW 7 Dr. Pratibha examined the appellant. She asked him the history whereupon the appellant gave history of assault as he attempted to commit suicide with a knife on 3.6.2011 at 6.00 a.m. The evidence of Dr. Pratibha again falsifies the stand taken by the appellant that his wife Sitabai assaulted him with a knife. Dr. Pratibha is an independent witness. There is no reason for her to falsely involve the appellant. We find that the evidence of Dr. Pratibha inspires confidence, hence, we have no hesitation in relying on the same. The evidence of Dr. Pratibha further shows that on examination of the appellant, she found multiple superficial incised wounds on left side of chest and abdomen caused by sharp object. The injuries were simple in nature. The patient had also another injury i.e sutured wound on abdomen, vertical length 10 cms. Thus the evidence of Dr. Pratibha establishes that the appellant assaulted himself with a knife and tried to commit suicide.

13. On going through the record, we find that there is sufficient evidence to prove beyond reasonable doubt that the appellant assaulted his wife Sitabai with a knife and caused her death. During the course of the incident, the appellant also assaulted his son Pravin with a knife and caused him injury. We have already observed above that the offence under Section 309 of IPC is also proved against the appellant. In this view of the matter, we find no merit in the appeal. the appeal is dismissed.

14. Office to communicate this order to the appellant who is lodged in jail.

15. At this stage, we must record our appreciation for Advocate Ms. Rohini M. Dandekar who is on the panel of Advocates of High Court Legal Services Committee and who was appointed by us to represent the appellant in this appeal. We found that she had meticulously prepared the matter and she has very ably argued the appeal. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at Rs. 5000/-.

Appeal dismissed.