He relied on the judgment of the Apex Court in case of SharadBirdhichand Sarda v. State of Maharashtra

Legal Reasoning

APEAL-220-23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 220 OF 2023Motiram Karnu TodsamAge: 53 years, Occu.: Convict No.C/9695,Through, the Superintendent,Nanded Prison, Nanded..APPELLANTVERSUSState of MaharashtraThrough Police Station Officer,Police Station Kinwat,Nanded, Dist. Nanded..RESPONDENT....Mr. N.K. Tungar, Advocate for appellantMs. U.S. Bhosle, A.P.P. for respondent - State.... CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.DATE : 20th SEPTEMBER, 2024ORAL JUDGMENT ( PER : R.G. AVACHAT,J . ) :1.The appellant has been convicted for committing murder of hiswife, and therefore, sentenced to suffer imprisonment for life and to pay fineof Rs.1,000/- with default stipulation, vide judgment and order dated 24thAugust, 2022 passed by Sessions Judge, Nanded in Sessions Case, No. 207of 2019. He is, therefore, before us in this appeal.2.The facts giving rise to the present appeal are as follows :-The appellant alongwith his wife, Laximbai (deceased) and theirfive children would reside together at village Jaroda Tanda, Tq. Kinwat, Dist.1 / 8 APEAL-220-23.odtNanded. The appellant was addicted to liquor. He would suspect fidelity ofhis wife. On the night of 11th October, 2013 at 01:00 a.m. the appellantcommitted murder of his wife by strangulating her and fled away. He couldonly be arrested on 18th January, 2019. Before his arrest, the charge-sheetwas filed against him.3.The trial Court framed charge (Exh.5). The appellant pleaded notguilty. His defence was of false implication. According to him, he would goout of the house for 8-10 days for work to earn his living. On the fateful night,he was not at his residence.4.To bring home the charge, prosecution examined nine witnessesand produced in evidence certain documents. On appreciation of the same,the trial Court convicted and consequently sentenced the appellant as statedabove.5.Learned counsel for the appellant would submit that brother of theappellant, PW 1 – Sheshrao, who lodged the F.I.R. (Exh.18), did not stand bythe prosecution. His so called thumb impression appearing therein hasneither been attested nor it discloses whether it is left or right thumbimpression. He relied on the judgment of the Apex Court in case of SharadBirdhichand Sarda Vs. State of Maharashtra, 1984 AIR (SC) 1622, tosubmit that since the case is based on circumstantial evidence, each andevery circumstance relied on by the prosecution has to be proved up to the2 / 8 APEAL-220-23.odthilt. According to him, there was no motive for commission of the offence.PW 8 – Ashwini, daughter of the appellant, testified that the appellant hadbeen to her matrimonial village to meet her and PW 7 – Suhasini inNovember, 2018. The same indicates that he was not absconding. He thenrelied on the judgment of the Apex Court in case of Digamber Vaishnavand Another Vs. State of Chhattisgarh, 2019 AIR (SC) 1367 to submit thatas PW 7 – Suhasini was fourteen years of age at the relevant time, andtherefore, being a child witness, her testimony needs to be tested with apinch of salt. According to him, there is no corroboration to her evidence.Her evidence was recorded eight years after the incident. She wasadmittedly residing at the house of her maternal grandparents after the saidincident, and therefore, was likely to have been tutored by her maternal uncleto depose against the appellant. According to learned counsel, theprosecution has failed to bring home the charge beyond reasonable doubt.He ultimately urged for allowing the appeal.6.Learned A.P.P. would, on the other hand, submit that it was anopen and shut case. PW 7 – Suhasini, daughter of the appellant, was of theage of understanding. She had no reason to give false evidence against herown father. The appellant went absconding for years together. He and hiswife (deceased) were in the company of each other soon before she breathher last. She, therefore, relied on Section 106 of the Evidence Act. Sheurged for dismissal of the appeal.3 / 8 APEAL-220-23.odt7.Considered the submissions advanced. Perused the evidence onrecord and the judgment impugned herein. Let us advert thereto andappreciate the same.8.Since the case is based on circumstantial evidence, reference tothe principles laid down by the Apex Court in the case of Sharad Sarda(supra) first need to be adverted to where it has been observed thus :-“(1)The circumstances from which the conclusion of guilt is to bedrawn should be fully established.(2)The facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that theaccused is guilty,(3) The circumstances should be of a conclusive nature andtendency,(4)They should exclude every possible hypothesis except the one tobe proved, and(5)There must be a chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.”9.Admittedly, the appellant alongwith his wife, Laxmibai (deceased)and their five children would reside at village Jaroda Tanda, Tq. Kinwat. Thepostmortem examination report (Exh.34) indicates Laxmibai died ofstrangulation of neck due to asphyxia due to cardio respiratory arrest. PW 4– Dr. Dhole had conducted autopsy on the mortal remains of Laxmibai. Henoticed contused lacerated wound admeasuring 2 x ½’’ on upper left eye andswelling of lower part of eyelids. He also noticed abrasion over right hand atthe sight elbow joint over about 4 inch area. The injuries were ante-mortem.4 / 8 APEAL-220-23.odt10.As such, deceased – Laxmibai met with homicidal death is a factduly proved. It being a case based on circumstantial evidence, motive playsan important role. True, PW 1 – Sheshrao (informant), real brother of theappellant, did not stand by the prosecution. According to him, the appellantused to be away from home. He went on to state that for 5-6 days includingthe day of the incident the appellant had gone out of the village for labourwork. According to him, Laxmibai might have been murdered by the thieves.11.Then there is evidence of PW 2 – Pravin, who was the PoliceSub-Inspector with Kinwat Police Station during the relevant time. Hisevidence indicates that a person by name – Sheshrao Karnu Todsam hadcome to the police station and lodged the report (Exh.18). He recorded thesame as narrated by him. He referred to the said report and thumbimpression appearing thereon as that of PW 1 – Sheshrao. True, the thumbimpression has not been attested, nor does it indicate whether it was of rightor left thumb. By the side of the thumb impression there is signature of PW 2– Pravin, indicating the same to have been obtained in his presence. Wehave no reason to disbelieve him. His evidence goes a long way to infer PW1 – Sheshrao to have lodged the F.I.R. against his own brother.12.PW 3 – Nagorao, brother of the deceased, testified that theappellant was addicted to liquor. He would beat up his sister on account ofsuspecting her character. PW 5 – Anandrao, neighbour of the appellant, too5 / 8 APEAL-220-23.odttestified that the appellant was addicted to liquor. He used to demand moneyfrom his wife for consumption thereof. His evidence further indicates that theappellant would suspect her loyalty with him. The evidence of both thesewitnesses lead us to infer the appellant to have motive in the nature ofsuspecting the character of his wife, so as to do her away.13.PW 7 – Suhasini, daughter of the appellant and the deceased,was of fourteen years of age at the relevant time (a grown up child of the ageof understanding). Her evidence indicates that her father (appellant) wasaddicted to liquor. Her mother used to work in the field to earn their living.The father was unemployed. He would quarrel with her (Laxmibai). Theappellant would demand her money for consumption of liquor.It is further in her evidence that on 10th October, 2013, theappellant returned to his residence. All of them took dinner and went tosleep. He woke up his wife (Laxmibai) to take her to sleep in the basement.After they left the room, she bolted the house from inside. In the morning,she got up to find both, the appellant and her mother to have not been in thebasement or nearby. She, therefore, made search for her mother. Shefound her mother lying in the nearby field. She had suffered injury to hereye. Bangles in her hand were broken. She noticed a voter identity card ofher mother in the basement. It was stained with blood.14.Learned counsel for the appellant would submit that no voteridentity card was found nor any such card was sent for R.F.S.L. to find the6 / 8 APEAL-220-23.odtsame to have been stained with blood. He meant to say that PW 7 –Suhasini was not speaking truth. Admittedly, the evidence was recordedabout nine years after the incident. PW 7 – Suhasini’s memory might nothave served her well. The incident was such that it must have beenimpressed on her mind. At the cost of repetition, it is observed that she didnot have any reason to give evidence against her own father. Learnedcounsel took us through paragraph nos. 21, 22 and 24 of the judgment incase of Digamber Vaishnav (supra) to submit that PW 7 being a child witnesswas prone to tutoring. There was no corroborative evidence. Her evidence,therefore, shall not be believed.15.We are not in agreement with learned counsel for the appellant.The fact is that PW 7 – Suhasini was fourteen years of age at the relevanttime. Her evidence indicates that the appellant was in the house on thefateful night. He took his wife, Laxmibai (deceased) out of the house forsleeping in the basement. The prosecution evidence indicates thatconstruction of the house of the appellant was in progress. It was nearingcompletion. The motive had already been proved as stated above. After theappellant came out of his house alongwith his wife to sleep in the basement,he disappeared for five years, while within hours of their going out of thehouse his wife was found strangled. The appellant being the last person inthe company of the deceased, owed explanation as to the circumstances inwhich Laxmibai met with death. He did not offer any explanation. On thecontrary, his abscondence for years together point out his conduct being7 / 8 APEAL-220-23.odtinconsistent with innocence. Although one of his daughters testified that hehad been to her residence in November 2018, being a father of five childrenand had he been out of the house to some other village to earn his living, itwould have been natural on his part to return to his house within a few days.He did not return until arrested after five years.16.The upshot of the aforesaid evidence indicates that the appellantwould suspect fidelity of his wife. With a view to kill her, he took her out ofthe house under the pretext of sleeping in the basement. It is he and noneelse, who strangled his wife on the fateful night and went absconding forabout five years until he was arrested on 18th January, 2019. As such, wefind the trial Court to have rightly convicted and consequently sentenced theappellant. We are at one with the findings recorded by the trial Court.17.In the result, criminal appeal fails. Same stands dismissed.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD8 / 8