Criminal Appeal No.118 of 2013

7th December, 2015

Petitioner Counsel: Mr. R.M. DAGA
Respondent Counsel: Mr. RAJESH NAYAK, A.P.P.

Cases Cited:
State through CBI Vs. Mahender Singh Dahiya, 2011 ALL MR (Cri) 1295 (S.C.) [Para 12]
Vandana wd/o Yogesh Mankar Vs. The State of Maharashtra,, 2015 ALL MR (Cri) 1910 [Para 12]
Subramaniam Vs. State of Tamil Nadu & anr., 2009 ALL MR (Cri) 2118 (S.C.) [Para 12,17]
Paulmeli & anr Vs. State of Tamil Nadu,, 2014 ALL SCR 2239=(2014) 13 SCC 90 [Para 13,17]
Trimukh Maroti Kirkan Vs. State of Maharashtra,, 2006 ALL MR (Cri) 3510 (S.C.)=2006 LawSuit (SC) 843 [Para 13,27]
Sucha Singh & anr Vs. State of Punjab,, 2003 ALL MR (Cri) 2346 (S.C.)=AIR 2003 SC 3617 (1) [Para 25]
Trimukh Maroti Kirkan Vs. State of Maharashtra, 2007 ALL SCR 237 [Para 13,27]

JUDGMENT

V. M. Deshpande, J. :- Exception is taken in the present appeal to the judgnent and order of conviction passed by learned Additional Sessions Judge, Chandrapur dated 30.11.2012 in Sessions Case No. 91 of 2010, whereby appellant stands convicted for the offence under Section 302 of the Indian Penal Code and consequently, he is sentenced to suffer imprisonment for life and to pay a fine of Rs. 100 and in default of payment of fine, to suffer rigorous imprisonment for one month.

2. The facts which are necessary for the decision of the present appeal are enumerated hereinunder :

Deceased Kalpana was married with appellant on 11.5.2010. Their marriage took place at Kondhali. After marriage, Kalpana started cohabiting with appellant at village Khairguda. Kalpana died on 14.6.2010. Thus, within a period of one month from her marriage, Kalpana met with her death.

3. P. W. 7 Anil Gujar was a probationary Police Sub-Inspector and he was posted as such at Rajura Police Station. He was on duty from 14.6.2010 from night hours to 15.6.2010 till morning hours. In the intervening night in between 14.6.2010 and 15.6.2010, present appellant Kamlakar came to Police Station and lodged a report. Oral report of appellant was reduced into writing by Anil Gujar personally. The report is at exhibit 35. The report so recorded discloses that on 14.6.2010 appellant was present in the house throughout day. At 7.30 in the evening, his wife served him with dinner and thereafter he went to bed. At 09.00 o'clock his wife Kalpana also came and slept beside him. Thereafter appellant woke up to answer the call of nature (y?kq'kadk) i.e. for urination. After that, when he came to his bed, he tried to wake up his wife by putting hand. That time, his wife was giving convulsions and froth was coming from her nostrils. Therefore, he woke up his parents and then he noticed that his wife is dead. Thereafter he gave intimation to Police Patil and came to Police Station for giving intimation.

4. On the basis of aforesaid report, Anil Gujar (PW 7) registered AD No. 34/2010 vide exhibit 36. After registration of Accidental Death Case, said Police Officer with police party, reached to the house of appellant. There, he noticed Kalpana was lying dead on matress. A spot panchanama was drawn by him in presence of panchas Harishchandra Kulsange (PW 1) and Vinod Usane. Panchanama of spot is at exhibit 14. Inequest was also drawn over the dead body vide exhibit 15. He sent dead body for post-mortem.

5. Anil Gujar, Police Officer received post-mortem report on 16.6.2010. Post-mortem report is at exhibit 24. Post-mortem report shows cause of death as asphyxia caused by throttling. Therefore, Anil Gujar lodged report on 16.6.2010 against the appellant for committing murder of Kalpana. The report is at exhibit 41.

Pw 8 Janardhan Badhiye took the report of PW 7 Anil Gujar and on the basis of it, he registered offence against the appellant vide Crime No. 89/2010. He then sent copy of First Information Report to the Judicial Magistrate, First Class, Rajura.

6. Investigation of Crime No. 89/2010 was entrusted to Sandeep patil (PW 10) on 16.6.2010 itself. He caused arrest of appellant on the same day under arrest panchanama (exhibit 66). He also seized clothes of appellant under seizure memo. He also recorded statements of witnesses. He was in charge of investigation from 16.6.2010 to 26.6.2010.

On 26.6.2010 the investigation was entrusted to PW 9 Bharat Thakare, Police Inspector of Rajura Police Station. He completed the usual investigation and filed chargesheet before the Court of Law.

7. After the case was committed to the Court of Sessions by learned committal Magistrate, the case was registered as Sessions Case No. 91 of 2010 and learned Additional Sessions Judge, Chandrapur vide exhibit 9 framed charge against the appellant. The appellant denied the charge and claimed for his trial.

8. To bring home the guilt of the appllant, prosecution has examined ten witnesses. The statement of appellant was also recorded under Section 313 Cr. P. C. He also filed his additional written statement vide exhibit 69 and also examined one Ramdas Surkar as defence witness. A specific defence is taken by the appellant that on the day of incident, some unknown person entered into his house and committed murder of his wife.

9. learned Judge of the Court below, after appreciating the case of the prosecution, recorded a finding of guilt and sentenced the appellant for life term.

10. Mr R. M. Daga, learned counsel represented the appellant whereas the State is represented by Mr Rajesh Nayak, learned Additional Public Prosecutor. With the able assistance of learned counsel for the parties, we have perused the entire record for re-appreciating the prosecution case.

11. The foremost contention of learned counsel for the appellant is that the prosecution has not proved that deceased Kalpana met with homicidal death. According to him, the autopsy surgeon himself was not sure that Kalpana died due to throttling. For that, he has invited our attention to the post-mortem report and more specifically opinion as to the cause of death. According to him, if the same is perused, then there is question mark after the words "Death caused by asphyxia caused by" and then word "Throttling" is appearing. Thus, according to him, the question mark put against the column meant for opinion as to the cause or probable cause of death in post-mortem report has, in fact, put a serious question mark about the homicidal death of Kalpana.

12. His further submission is, the autopsy surgeon could not find any fracture on the thyroid cartilage. He pressed into service various passage from the book of the learned Author Modi and submits that the death cannot be caused due to throttling since while conducting the post-mortem, the autopsy surgeon has found V-shaped abrasion over the upper part of neck. He, therefore, submits that in fact Kalpana had committed suicide.

It is his further submission that there is no charge against the appellant that he caused any ill-treatment to Kalpana. He further submits that there was no motive on the part of the appellant as to why within a period of one month of marriage, he will commit murder of his wife. He relied upon the authoritative pronouncement of the Apex Court in the matter of State through CBI v. Mahender Singh Dahiya reported in 2011 ALL MR (Cri) 1295 (S.C.) to buttress his point that motive plays important role when the prosecution case is based on circumstantial evidence. He also submits on the basis of a reported judgment of this Court in the case of Vandana wd/o Yogesh Mankar v. The State of Maharashtra reported in 2015 ALL MR (Cri) 1910 that merely because deceased died homicidal death and body is found in the house where at the accused was residing, that itself is not sufficient to record finding of guilt. He also relied upon another Apex Court decidision in the case of Subramaniam v. State of Tamil Nadu & anr reported in 2009 ALL MR (Cri) 2118 (S.C.) to buttress his point about the passages from the learned Author Modi. He, therefore, submits that appeal be allowed and appellant be set at liberty forthwith.

13. Per contra, Mr Rajesh Nayak, learned Additional Public Prosecutor strongly submitted that the appellant alone is guilty and is the author for causing the death of his wife. He submitted that the prosecution has proved that Kalpana died homicidal death. He further points out that at the time of her death, the appellant alone was in her company and defence as taken by the appellant is not only improbable, but is false one. He relied upon the reported case of the Apex Court in Paulmeli & anr v. State of Tamil Nadu reported in (2014) 13 SCC 90 : [2014 ALL SCR 2239] to meet the submission of learned counsel for the appellant about the passages and the opinion of learned Author Modi. He relied upon another pronouncement of the Apex court in Trimukh Maroti Kirkan v. State of Maharashtra reported in 2006 LawSuit (SC) 843 : [2006 ALL MR (Cri) 3510 (S.C.) : 2007 ALL SCR 237] to buttress his point that it is only the appellant who can be held responsible for causing the death of his wife Kalpana. He submitted that the learned Judge of the Court below has correctly evaluated the prosecution case and has reached to a right conclusion and, therefore, prayed for dismissal of the appeal.

14. Since the learned counsel for appellant has seriously doubted the nature of the death of Kalpana, the court has to decide the said point firstly.

15. There is nothing available on record to show or suggest that deceased Kalpana was suffering from any disease or was an infirm lady. Her marriage took place within one month prior to her exit from this world. Therefore, we can safely reach to a conclusion that Kalpana was hale and hearty at the time of her death.

16. The doubt about the nature of the death is raised by learned counsel for the appellant because of the question mark as appearing in the post-mortem about the cause of death. It would be useful to reproduce the same for herein for appreciation:

“Opinion as to the : cause, probable cause of death

Death caused by Asphyxia caused by ? Throttling. Viscera preserved and sent for C.A.”

Chemical Analyser's Report in respect of viscera is available at exhibit 59 and it shows that there does not contain any poison.

PW 4 Dr Lahu Kulmethe was attached to Rural Hospital, Rajura on 15.6.2010. One Dr Mrs Akre was lady Medical Officer on the said date. Under requisition (exhibit 23) from the Investigating Officer, dead body of Kalpana was sent for post-mortem. Post-mortem was conducted by Dr Lahu Kulmethe with Dr Mrs Akre. On post-mortem, the autopsy surgeons found the following injuries :

"(i) 'V' shaped abrasion was present over the upper part of neck on anterior aspect of neck about 11 cm long, 2.5 cm width, Regular margins, dark brownish colouration extended from anterior border of stronoid muscle left to anterior border of sterno mustroid muscle right side.

(ii) Abrasion minimal dark brown soft scab formation present just above middle part of first abrasion.

(iii) Abrasion about 3 mm ornamentric with soft scab, brownish colour at the right end of the first abrasion.

On incision underneath subcutaneous tissue was glistering, on cut dark colour blood was oozing underneahth muscle was congested."

According to the doctor, all the aforesaid injuries were ante-mortem and those injuries were sufficient to cause death of person in ordinary course of nature. Doctor found no internal injuries and no substances of poison in stomach. In his evidence from the witness box, the autopsy surgeon has given his opinion about death of Kaplana as under :

"The cause of death was asphyxia due to throttling."

It is to be noted that though the doctor was available for his cross-examination, learned defence counsel declined to cross-examine. P. W. 4 Dr Lahu Kulmethe. Thus, the evidence of Dr Kulmethe has gone unchallenged. The evidence of Dr Kulmethe shows that he is having twelve years' experience to his credit. Further, he has conducted about 150-200 post-mortems.

It was open for the learned cross-examiner who was representing the appellant before the trial Court to cross-examine Dr Kulmethe in respect of appearance of the question mark in the post-mortem report (exhibit 24) as reproduced above. The opportunity ought to have been given to the doctor to give his explanation about the same. Without offering any opportunity to the maker of the document to give an explanation, in our view, it is not permissible to raise eyebrows subsequently at appellate stage. Further, in clinching words in his substantive evidence, doctor has given opinion that death of Kalpana was due to asphyxia which was caused due to throttling.

17. In so far as passages from Modi's Book and the decision of the Apex Court in Subramaniam's (supra) are concerned, in our view, learned Additional Public Prosecutor has rightly placed reliance on Paulmeli's case, [2014 ALL SCR 2239] (supra). Paragraph 16 of the said judgment in Paulmeli's case reads as under:-

"It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised. (Vide Atluri Brahmanandam v. Anne Sai Bapuji and Laxmibai Bhagwantbuva)"

In the present case, as observed in the preceding paragraph, it was open for the learned cross-examiner to confront with the opinion of Author Modi to the concerned Medical Officer and thereafter ought to have obtain his opinion about the same. We cannot forget that the autopsy surgeon was not a new entrant in the medical field. He had a past experience of twelve years to his credit and had performed about 150-200 post-mortems. His experience always allows him to reach to a particular conclusion on the basis of the state of the body, injuries noticed by him while conducting post-mortem. In that view of the matter, we cannot lightly brush aside such considered opinion of the doctor in rspect of cause of death especially when the evidence of the doctor has gone unchallenged.

Further, though the learned counsel for the appellant described the death of Kalpana as suicidal one, he could not point out any circumstance as to why there was any reason and/or occasion for the unfortunate newly wedded girl to put an end to her life. In absence of anything on record, we find that the submission of learned counsel for the appellant that Kalpana committed suicide is imaginary one and cannot be accepted.

In that view of the matter, we have no hesitation to record our finding and confirm the finding of learned Court below that Kalpana died homicidal death.

18. Once we reach to a conclusion that Kalpana died homicidal death, the next question that arises for consideration is, whether the appellant is responsible for the said death.

19. The evidence as brought on record by the prosecution in the present case is in very narrow campass. Following witnesses are examined apart from Dr Lahu Kulmethe :

(i) PW 1 Harishchandra Kulsange. This prosecution witness has acted as pancha witness to spot panchanama (exhibit 14) and inquest panchanama (exhibit 15).

(ii) PW 2 Maroti Navghade. This prosecution witness is elder brother of deceased Kalpana.

(iii) PW 3 Kavita Navbhade. She is sister of deceased Kalpana.

(iv) PW 5 is Vyankatesh Mamidpalliwar, a pancha witness to seizure panchanama (exhibit 26).

(v) PW 6 is Vyenkatrao Munde who was Police Patil of village Khairguda where at the couple was residing.

(vi) Pws 7 to 10 are the police officers who conducted investigation in the crime.

20. PW 2 Maroti Navghade, the brother of deceased speaks about the date of marriage of Kalpana and her cohabitation with appellant at Khairguda. Exhibit 69 is the additional written statement of appellant under Section 313 cr. P. C. shows that the appellant was residing separately along with his wife.

21. The evidence of Maroti reveals that on 14.6.2010 he received a message on telephone from the appellant regarding the fact that Kalpana has become serious and the reason disclosed to this witness by appellant was that she suffered snake bite.

22. Learned counsel for the appellant submitted that reason for giving this information to Maroti is due to the advice given by Vyenkatrao Munde (PW 6). Vyenkatrao Munde is a police patil. His evidence discloses that on 14.6.2010 at about 10.30 pm he received a phone call from Sakharam Chankapure of village Khairguda that wife of appellant is giving convulsions to the hands and limbs. He, therefore, went to Khairguda where at he noticed that wife of appellant was lying dead. His evidence is that he suspected the case of poisoning or snake bite. Therefore, he suggested to inform the police and accordingly, appellant, his parents and Chankapure went to police station to give the information. In the light of such evidence, the submission of learned counsel for appellant cannot be accepted that snake bite theory was introduced to appellant on the suggestion given by PW 6 Vyenkatrao Munde since exhibit 35 is completely silent about the snake bite. Further, from oral report (exhibit 35) and through defence evidence, it is the defence of the appellant that some other person has committed the murder of Kalpana. If that be so, there was no occasion for him to give false information to the brother of Kalpana.

23. Kavita, the sister of deceased Kalpana stayed with Kalpana and the appellant for 5-6 days. That time, she noticed that the appellant was suspecting over the character of the deceased. This particular evidence of Kavita has remained unshaken. In the background of this, suggestion given to Maroti and Kavita during their cross-examination that prior to marriage of deceased, she had a love affair with a boy who hails from lower caste, assumes importance and in our view, it is rightly pointed out by learned Additional Public Prosecutor that it is a motive for elimination of Kalpana at the hands of appellant from this world.

24. Ramdas Surkar who is examined as defence witness by the appellant is examined in support of his defence. His evidence would show that on the day of incident in between 09.00 pm to 10.00 pm when he had been out of village for easing, he noticed one person running away and that time he noticed appellant and one Purushottam Satpute chasing the said unknown person. However, they could not catch him and when he enquired withn them, it was informed to him that said unknown person came out from the house of Kamlakar and thereafter a phone call was made by Kamlakar that some unknown person had killed Kalpana. We find after examining testimony of this defence that it does not inspire confidence. His conduct of remaining silent and not accompanying in chasing, in our view, shows that this witness was introduced by defence to substantiate its version. Further, Purushottam Satpute who was allegedly accompanying the appellant in chasing the unknown person, did not step in witness box. It has its own impact on the defence.

25. By taking the above particular defence, it is the submission of learned counsel for the appellant that there exists doubt in the prosecution case and, therefore, appellant is entitled for benefit of doubt. For extension of benefit of boubt, this Court has a guidance from the Honourable Apex Court in the matter of Sucha Singh & anr v. State of Punjab reported in AIR 2003 SC 3617 (1) : [2003 ALL MR (Cri) 2346 (S.C.)]. In paragraph 20 of the said judgment, the Honourable Apex Court has observed as under:

"Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh and others (AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U. P. v. Ashok Kumar Srivastava (AIR 1992 SC 840). A reasonqable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innoxcent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and another v. State (Delhi Admn) (AIR 1978 SC 1091). Vague bunches cannot take place of judicial evaluation. "A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties" (Per Viscount Simen in Stirland v. Director of Public Prosecutor (1944 AC (PC) 315 quoted in State of U. P. v. Anil singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth."

On the touchstone of aforesaid dictum of the Apex Court, we have no hesitation in our mind to reject the submission of learned counsel for the appellant in respect of extension of benefit of doubt in view of the foregoing discussion in this judgment.

26. Section 106 of the Evidence Act reads as under :

"106. Burden of proving fact especially within knowledge. - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

27. Learned Additional Public Prosecutor has rightly invited our attention to the reported of the Honourabe Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra, [2006 ALL MR (Cri) 3510 (S.C.) : 2007 ALL SCR 237] (supra). In paragraph 12, the Honourable Apex Court has observed as under :

"If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape.

Both are public duties. (See Stirland v. Director of Public Prosecuton 1944 AC 315 quoted with approval by Arijit Pasayat, J in State of Punjab vs. Karnail Singh 2003 (11) SCC 271. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entire upon the prosecution and there is no duty at all on an accused to offer any explanation."

28. From the evidence available on record, it is crystal clear that only the deceased and the appellant were residing in the house. Though a suggestion is given to PW 7 Anil Gujar who has recorded report of the appellant that accused informed him that while he was entering into room, somebody else gave jerk and ran away, the said suggestion is stoutly denied by anil Gumar (PW 7). Further, we cannot attach much importance to such suggestion in view of the contemporary proved document (exhibit 35). Further, there was no reason for Anil Gujar (Pw 7) to record false information or the information which was not supplied to him by the appellant.

29. It is proved that it is only the couple was residing in the house and deceased Kalpana was in the custody of appellant. Further, it was only the appellant who was having access over the body of the deceased in the night hours. Thus, in our view, the appellant alone who was having motive to eliminate his wife, is a person responsible for the death of his wife.

30. Upshot of the aforesaid discussion leads us to pass the following order:-

ORDER

Criminal appeal is dismissed.

Muddemal Property be dealt with as per law after appeal period is over.

Appeal dismissed.