Shantaram Kachru Charoskar v. The State of Maharashtra

Judgment

[PER SMT. V.K. TAHILRAMANI, J.]

1. The appellant/orig. accused has directed this appeal against the judgment and order dated 19.12.2003 passed by the learned 1st Adhoc Additional Sessions Judge, Nashik in Sessions Case No.157 of 2002. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of Indian Penal Code and sentenced him to suffer R.I. for 2 life and to pay a fine of Rs.500/- in default R.I. for one month.

2. The prosecution case, briefly stated, is as under :- The appellant was married to Fashabai (deceased) about one year prior to the incident. They were residing in their house at Pimpalad, District – Nashik. Fashabai was the daughter of maternal uncle of the appellant. After the marriage, the appellant used to suspect the character of Fashabai and ill- treat her on that count. Fashabai had complained to her mother i.e. PW-7 Mhaisabai about this fact i.e. her husband used to suspect her character and ill-treat her. Thereafter Fashabai was not allowed to come to the house of her parents. On 27.7.2002 PW-3 Ganu that is the father of deceased Fashabai received message that his daughter was dead. Hence he went to the house of the appellant. He saw that Fashabai was lying in the inner room. Her throat was swollen and there were blood stains

on her face. He immediately lodged the FIR. Thereafter the investigation commenced. The dead body of Fashabai was sent for postmortem. PW-8 Dr. Pavankumar conducted the 3 postmortem on the dead body of Fashabai. He found following injuries on the dead body of Fashabai : “i) CLW on right cheek of 3 cm. x 1 cm. x bone deep, and maggots were present in injuries, with reddish discolouration, ii) CLW on Chin 3 x 1 cm. X bone deep with reddish discolouration and maggots present. iii) CLW on left side of chest below clavicle, 2 cm. x 1 cm. X rib deep, reddish discolouration and maggots were present. iv) Ligature mark around the neck (encircling the neck) deeply guttered 42 cm. in length, 4 cm in breadth, maggots were present. On dissection of ligature mark subcutaneously white glistening tissue was seen with eceymosis.” . According to PW-8 Dr. Pavankumar all the above mentioned injuries were antemortem. In his opinion, the death was caused due to asphyxia as a result of strangulation. Accordingly, he issued postmortem report Exh.13. After completion of investigation chargesheet came to be filed and the case was committed to the Court of Sessions.

3. Charge came to be framed against the appellant under Section 302 of IPC as well as under Section 201 of IPC. The 4 appellant pleaded not guilty to the said charge and claimed to be tried. His defence is 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 para-1 above, hence this appeal.

4. We have heard Mr. Arfan Sait, learned Advocate for the appellant and Mrs. P.P. Bhosale, learned APP for the State. We have perused the evidence in the present case and minutely gone through the record. After carefully considering the matter, we are of the opinion, for the reasons stated hereinbelow, that the learned Judge has rightly convicted and sentenced the appellant.

5. This case is based entirely on circumstantial evidence. There is no eye witness in the present case. The circumstance against the appellant is that the dead body of Fashabai was found in the house of the appellant and the appellant had motive to cause death of Fashabai because he was suspecting her character. The motive is brought on record through the evidence of PW-7 Mhaisabai who is the mother of Fashabai. PW-7 5 Mhaisabai has stated that her daughter complained to her that her husband used to suspect her character and ill-treat her on that count. Thereafter Fashabai was not allowed to come to their house. PW-3 Ganu, who is the father of Fashabai, has also stated that the appellant used to suspect the character of her daughter and ill-treat her. Thus, we find that the appellant had strong motive to cause the death of his wife.

6. It is not denied that the dead body of Fashabai was found in the house of the appellant. When PW-3 Ganu father of Fashabai arrived at the spot, the dead body was found in the house of the accused. They saw the dead body of Fashabai in the inner room with strangulation marks on her neck and blood marks on her face. Looking to the nature of the injuries on the dead body of Fashabai, we have no manner of doubt that the death of Fashabai was homicidal in nature.

7. Looking to the fact that the dead body of Fashabai was found in the house which was occupied only by the appellant and his mother and the deceased Fashabai, Fashabai was found 6 dead with strangulation marks on her neck and with blood marks on her face, in such case, it would be for the appellant to explain how his wife sustained said injuries and died. However, we find that the appellant has not furnished any explanation as to how his wife sustained injuries and died. It is not case of the appellant that some person had entered into the house and caused injuries to his wife nor it is brought on record that anyone in the area or elsewhere had any enmity with the deceased or any motive to do away with Fashabai. Thus, non- explanation by the appellant as to how his wife sustained injuries and died provides an important link in the chain of circumstances connecting the appellant with the crime.

8. The learned Advocate for the appellant submitted that as far as death of Fashabai is concerned, there can be no dispute that she died due to strangulation. However, he submitted that the appellant cannot be held accountable for the same on account of the appellant being insane at the time of the incident. To support his contention that the appellant was not of sound mental health at the time of incident, he placed reliance on the 7 evidence of PW-4 Pawade who is a panch witness. It is pertinent to note that this panch witness has been declared hostile and it is this witness who has stated that the appellant was "slightly" lunatic.

9. Mr. Sait, learned Advocate for the appellant placed reliance on a letter (Exh.30) addressed by the Investigating Officer to the Medical Officer, Nashik Civil Hospital. In the said letter, the Investigating Officer had requested the Doctor to medically examine the appellant. Mr. Sait pointed out that below that there is an endorsement which shows that the appellant was admitted in the psychiatric ward. As far as this aspect of the appellant, being a lunatic, is concerned, it is pertinent to note that in his statement under Section 313 of Cr.P.C., the appellant has not taken any such defence. Nor in the handwritten appeal memo which is prepared by the appellant, the appellant has taken such defence. It is pertinent to note that the deceased Fashabai i.e. wife of the appellant was the daughter of maternal uncle of the appellant. That means, the families were closely related and hence well known to each 8 other. In such case, if the appellant was a lunatic, PW-3 Ganu who is the father of Fashabai would have knowledge of the said fact and would certainly not have got his daughter married to the accused. Moreover, we find that Fashabai was the second wife. The parents of Fashabai would certainly not have got their daughter married to an insane person. We may also advert to the evidence of PW-7 Mhaisabai who is the mother of Fashabai. PW- 7 Mhaisabai has clearly denied that the appellant was lunatic at the time of the incident. On going through the evidence on record, we find that there is no material at all to suggest that at the time of incident the appellant was of unsound mind and was incapable of knowing the nature of the act or that what he is doing is either wrong or contrary to law. We are of the opinion that the appellant clearly knew that he had committed a wrong and the act that he had done was contrary to the law, from the very fact that the appellant was not present at home, but he had run away from the spot. He was later on traced and arrested by the police. Thus, this act belies his innocence as well as the defence of insanity. 9

10. The involvement of the appellant in the incident is also brought out from the fact that when the appellant was arrested the shirt (article 4) & pant (article 5) which was on his person came to be seized. PW-5 Ganpat who is the panch witness has deposed about this fact. The clothes of the appellant were sent to the C.A. and as per the CA report (Exh.28) it was found that the shirt of the appellant was stained with human blood. No doubt, the blood group has not come on record, but finding of human blood stains on the shirt of the appellant and the appellant not furnishing any explanation for the same, is a strong circumstance against the appellant. In this connection we may usefully refer to the decision of the Supreme Court in the case of Gura Singh Vs. State of Rajasthan, reported in (2001) 2 SCC 205, wherein it has been observed as under : “ In view of the authoritative pronouncement of this Court in Teja Ram Case (1999) 3 SCC 507) we do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the 'origin of the blood, the trial Court could not have convicted the accused. The Serologist & Chemical Examiner has found that the chadar seized in consequence of the 10 disclosure statement made by the appellant was stained with human blood. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant.”

11. Thus, on minutely going through the entire evidence on record, we are of the opinion that there is sufficient material to prove that the appellant has committed the murder of his wife. Thus, we find no merit in the appeal. Appeal is dismissed.

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

13. At this stage, we must record our appreciation for Mr. Sait, learned Advocate appearing for the appellant. We found that he had meticulously prepared the matter and he has very ably argued the matter. (A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)