High Court
Legal Reasoning
Cri Appeal No.52 of 2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.52 OF 2020Tukaram s/o. Nivrutti Avachite,Age : 32 years, Occ. Labour,r/o. Achalgaon, Tq. Vaijapur,Dist. AurangabadAt present : New Gaothan,Bidkin, Tq. Paithan, Dist. Aurangabad..AppellantVs.The State of Maharashtra,Through Bidkin Police Station,Tq.Paithan, Dist. Aurangabad..Respondent----Mr.Madhukar Parghane, Advocate for appellantMr.S.J.Salgare, APP for respondent---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. DATE : DECEMBER 02, 2024 Judgment (Per R.G.Avachat, J.) :- The appellant has been convicted for committing murder ofhis wife and therefore, sentenced to suffer imprisonment for life and topay a fine of Rs.25,000/- (Rupees Twenty Five Thousand), with defaultstipulation, vide the judgment and order dated 13.07.2018, passed bylearned Addl. Sessions Judge, Aurangabad (trial court), in SessionsCase No.198 of 2015. He is, therefore, before this court in appeal. 2Cri Appeal No.52 of 20202.The case of prosecution before the trial court, in short,was as under :-Sushila (deceased) had married the appellant in May,2013. Initially, the couple was residing at village Achalgaon, Tq.Vaijapur, Dist. Aurangabad. Since the brother of the appellant wasresiding at Uran, Panvel, Navi Mumbai, the couple was shifted to hisplace. Within a few days, Sushila realised the appellant to haveextra-marital relations with the wife of his brother. She, therefore,questioned him. The appellant and the wife of his brother, therefore,beat her up. She came back to her father’s (PW 5 - Subhash) house.After the stay of about more than six months thereat, the mother ofthe appellant and the other well-wishers came to PW 5’s house andrequested him to allow them to take her back to her matrimonialhome. PW 5 – Subhash, therefore, secured a room on rent at villageBidkin. The couple started residing therein.3.It was the case of prosecution that both appellant andSushila would suspect each other’s fidelity and therefore, there usedto be frequent quarrels between them. The appellant was serving ina company. He would return home after work by 03.30 p.m. On21.05.2015, he did not return home until 5.00 p.m. Sushila,therefore, made a phone call to her father. He came to his 3Cri Appeal No.52 of 2020daughter’s residence. He saw the appellant on his way home. In hispresence, quarrel between the appellant and Sushila took place. Itwas settled by him and the landlady. PW 5 – Subhash then returnedto his home. During the intervening night of 21st and 22nd May, theappellant throttled Sushila to death. He himself went to the policestation and reported the same to the police station officer. The P.S.O.informed the same to his higher-up. Presence of two panchas wassecured. In their presence, the appellant made disclosure statementand then took them to his residence. He opened the same. Sushilawas found dead in the room. Inquest panchnama (Exh.31) wasdrawn thereat. Her body was shifted to the hospital. 4.PW 1 – Pramod was A.P.I. at Bidkin Police Station. Helodged the FIR (Exh.32) on behalf of the State. He took up theinvestigation of the crime, which was registered vide C.R. No.121 of2015, for the offence punishable under Section 302 of Indian PenalCode. He drew the spot panchnama (Exh.33) and recordedstatements of the persons acquainted with the facts andcircumstances of the case. Autopsy was conducted on the mortalremains. The appellant was arrested. Articles seized were sent tothe F.S.L. for analysis and report. On completion of the investigation,charge-sheet was filed. 4Cri Appeal No.52 of 20205.The trial court framed Charge (Exh.3). The appellantpleaded not guilty. It was his defence that somebody else had killedhis wife. He, therefore, went to the police station to lodge a report.Instead of recording of his report, the police arrested him and framedin this crime. To bring home the Charge, the prosecution examinedseven witnesses and produced in evidence certain documents. Onappreciation of the evidence in the case, the trial court convicted theappellant and consequently, sentenced as stated above.6.Heard learned counsel for the parties. Learned counselfor the appellant would submit that the appellant had, in fact, beento the police station to lodge FIR against an unknown person, since,on return home, he found his wife dead. The police officer, insteadof recording his statement, detained him. While PW 1 – Pramod, API,reached the appellant’s room, there was crowd. Same indicates thatthe factum of homicidal death of the wife of the appellant hadalready come to the knowledge of the people. Therefore, whateverallegedly stated by the appellant could not be termed to bediscovery under Section 27 of the Evidence Act. More so, when he,allegedly, made such statement, crime was not registered nor washe arrested. He would further submit that there is no evidence at allto indicate that the appellant had ever suspected character of his 5Cri Appeal No.52 of 2020wife (deceased Sushila). The case is based on circumstantialevidence. The prosecution could not make out the case of motive.He adverted our attention to the evidence of the appellant’s father-in-law (PW 5 – Subhash), who admitted that the appellant would lovehis wife. He would further submit that the father would visit theappellant’s house. Same indicate that the relation between the twowere very good. Turning to the medical evidence, he would submitthat the tongue of the deceased was inside. There were no injurieson the person of the appellant. The same indicates that if thedeceased had resisted the act, there would have, at least, beenabrasions on her person. According to learned counsel, the chain ofcircumstances relied on by the prosecution has not been proved andcomplete, as has been expected in view of the dictum of the ApexCourt in the case of Sharad Birdhichand Sarda Vs. State ofMaharashtra, (1984) 4 SCC 116. Learned counsel would urge forallowing the appeal.7.Learned APP took us through the evidence on record andthe reasons given by the trial court, to ultimately urge for dismissalof the appeal. 6Cri Appeal No.52 of 20208.Considered the submissions advanced. Perused thejudgment impugned herein. Let us advert to the evidence on recordand appreciate the same.9.Admittedly, the appellant married Sushila in May, 2013.After marriage, she started residing at village Achalgaon. Theevidence of her father (PW 5 – Subhash) indicates that after somedays of marriage, the couple went to reside with the appellant’sbrother at Uran, Panvel, Navi Mumbai. The deceased noticed extra-marital relationship between the appellant and his brother’s wife.She, therefore, questioned him. Both appellant and wife of hisbrother, therefore, assaulted her. She informed the same to hisfather on phone. She came back to his residence and stayed there.The mother-in-law of the appellant and other well-wishers camePW 5’s home after six months and requested to allow them to takeher back to her matrimonial home. PW 5 – Subhash, therefore, tooka room on rent at Bidkin for residence of the appellant and deceasedSushila. It is further in his evidence that while deceased Sushila wasat PW 5’s residence, she had suffered paralysis attack. Her face wasdisfigured. She was, however, cured completely. He denied that theappellant would visit his residence to meet Sushila. It is true that hehas admitted that the appellant would love his wife. According to 7Cri Appeal No.52 of 2020him, it was the past. Many more incidents took place after themarriage.10.It is further in the evidence the PW 5 – Subhash that theappellant would return home from his work-place by 03.30 p.m. On21.05.2015, the appellant did not return home by 03.30 p.m. or littlethereafter. His daughter (Sushila), therefore, informed him on phone.He came to Bidkin. It was by 07.00 p.m. While he was proceedingtowards the house of the appellant, he saw him proceeding ahead ofhim. He went to the house of the appellant. It is further in hisevidence that a quarrel took place between the appellant and Sushilaover the appellant’s late returning home from his work place. Thequarrel was subsided by PW 5 and the landlady (PW 6). Theappellant and his wife then took meals. He (PW 5) then returned tohis residence.11.On the same lines is the evidence of PW 6 – Sindhubai,landlady. Admittedly, in her two rooms, the appellant along with hiswife (deceased Sushila) would reside together. She testified that on21.05.2015, the appellant came home by 06.00 p.m. There wasquarrel between him and Sushila. The appellant used to suspectSushila’s fidelity; Sushila would also suspect appellant’s. PW 5 - 8Cri Appeal No.52 of 2020Subhash had come to the appellant’s residence. Both of them triedto convince the couple. After the quarrel was subsided, she wentback to her house. The appellant’s father-in-law (PW 5) also went tohis village. She further testified that she had requested Sushila tocome to sleep on the terrace of her house. This was with a view toavoid further quarrel. Sushila, however, refused. It is further in herevidence that on the following morning, she came down from theterrace and saw the police-vehicle and the appellant. She sawSushila dead. She further claimed to have not known who killedSushila.12.Appreciation of the aforesaid evidence would indicatethat both appellant and his wife Sushila (deceased) were the onlypersons residing in the two room-premises belonging to PW 6 –Sindhubai. On the fateful night, both were the only persons in theroom. 13.PW 3 – Govind was the Police Head Constable, attachedto Bidkin Police Station. His evidence disclosed that he was policestation officer during the relevant time. His duty hours were from08.00 am. to 08.00 pm. on 21.05.2015 and 22.05.2015. According tohim, one person came to the police station. He was in frightened
Legal Reasoning
9Cri Appeal No.52 of 2020condition. His lips were dry. He disclosed him to have committedmurder of his wife by throttling by 03.30 am. PW 3 - Govind askedhim to seat. He served him water. On inquiry, he gave his name asTukaram Avchit (appellant). He (PW 3) then informed his higher-up,namely, API – Bhatnate (PW 1). He came to the police station. Hetoo made inquiry with the appellant. Presence of two panchas wassecured. The appellant made disclosure statement (Exh.29) abouthaving throttled his wife to death, at his residence. During cross-examination, it was suggested to PW 3 - Govind that the appellantsimply stated him that his wife was dead. He denied. According tohim, he made a station-diary entry (Exh.34) as regards what wasdisclosed to him by the appellant. Learned counsel would submitthat the station diary entry was silent to mention, in which vehicle,the police officials proceeded to the house of the appellant. In ourview, the same is not of much assistance.14.PW 1 – Pramod Bhatnate was A.P.I., attached to BidkinPolice Station. He testified that in the early morning of 22.05.2015,he received a phone call of PW 3 – Govind, informing one person tohave come to the police station and confessed to the crime. He,therefore, rushed to the police station. Here, learned counsel for theappellant would submit that PW 1 – Bhatnate was residing at N-7, 10Cri Appeal No.52 of 2020while Bidkin Police Station was 25 kms. away. His evidence wouldfurther indicate that he asked the police to secure two panchas. Atelephone call was made to the Tahsildar to depute two staffmembers. They were sent. They were Satish Joshi and SantoshIngle. It is in his evidence that the appellant made statement in thepresence of these panchas that his wife used to suspect his fidelity.There was, therefore, quarrel between the two. On the given night,quarrel took place. He pressed her neck and throttled her to death.Statement was reduced into writing (Exh.29). Making of thedisclosure statement by the appellant, has been proved by theevidence of PW 2 – Joshi, who testified that he had attended thepolice station on the directions of the Tahsildar. The appellant madestatement accordingly.15.The evidence of PW 1 - Bhatnate and PW 2 – Joshi wouldfurther indicate that the appellant took them to his room. It waslatched from the outside. He opened it. On opening the same, theyfound Sushila motionless. She was dead. We are conscious of thefact that whatever has been stated by the appellant about havingkilled his wife and the reasons therefor, to the police officials, cannotpartake the character of evidence. It is his confession to the police. Itis inadmissible. The timing of the disclosure statement was pointed 11Cri Appeal No.52 of 2020out. It pertains from the time the appellant made the disclosurestatement, until the dead body was shifted to the hospital. Theinquest panchnama (Exh.31) was drawn on the spot. He referred thesame in the evidence. Clause 10 therein, would indicate, "गळ्याजवळहाताने दाबल्याने व्रण पडून रक्त गोठले आहे".16.The mortal remains of Sushila was subjected to autopsyby Dr. Anjali (PW 4). It is in her evidence that she conducted postmortem examination and in her opinion, the Sushila died due to“asphyxia due to throttling”. Viscera was preserved. Learnedcounsel would submit that the Medical Officer was not confidentabout the cause of death. She, however, in her evidence before thecourt, positively stated that the deceased died due to throttling. Thepost mortem report is placed on record at Exh.41. Her evidenceindicates that following injuries were noticed on the neck ofdeceased Sushila :-1.Reddish bruise of the size 3 x 3cms. Over left sideof front of neck 4 cms. from midline, 2 cms. Below lower jaw.2.Crescentic abrasion of size 2 x 0.1 cm. right side of front of neck 3.5 cm. from midline and 2.5 cms below lower jaw. 12Cri Appeal No.52 of 20203.Reddish bruise 1 x 1 cm. right side of front of neck,3 cms. From middle of neck below abrasion.4.Reddish bruise 1 x 1 cm. front of neck.17.PW 4 – Dr. Anjali, in her examination-in-chief, testified tohave not noticed thumb marks on the neck of the deceased. Ourattention was drawn to page 90. A questionaire was given by theInvestigating Officer to the very Medical Officer, wherein she hasstated that there were thumb marks on the neck. This contradictionwas sought to be relied on by learned counsel for the appellant. Inour view, the evidence was recorded after three years of the incidentand the same might be the reason regarding the inconsistency in theevidence. The Medical Officer is an independent witness. She has noreason to take side.18.As such, the evidence on record, undoubtedly, go a longway to prove that the deceased Sushila met with homicidal death ather matrimonial home, which was occupied by her with theappellant. No third person was residing with them. On the givennight, the appellant was at his house. His going to the police stationand informing about the incident is admissible as his conduct underSection 8 of the Evidence Act. Moreover, the law is well settled when 13Cri Appeal No.52 of 2020an accused person goes to the police station and makes aconfessional statement and any discovery is made pursuant thereto,same is relevant without the confessional statement. Here, the deadbody has been recovered pursuant to his discovery statement, first,made to PW 3 – Govind. 19.In the case of Trimukh Maroti Kirkan Vs. State ofMaharashtra, (2006)10 SCC 681, it has been observed thus:-“14. If an offence takes place inside the privacy of ahouse and in such circumstances where the assailantshave all the opportunity to plan and commit theoffence at the time and in circumstances of theirchoice, it will be extremely difficult for theprosecution to lead evidence to establish the guilt ofthe accused if the strict principle of circumstantialevidence, as noticed above, is insisted upon by thecourts. A judge does not preside over a criminal trialmerely to see that no innocent man is punished. Ajudge also presides to see that a guilty man does notescape. Both are public duties. (See Stirland v.Director of Public Prosecutions [1944 AC 315 :(1944) 2 All ER 13 (HL)] — quoted with approval byArijit Pasayat, J. in State of Punjab v. Karnail Singh[(2003) 11 SCC 271 : 2004 SCC (Cri) 135)]. The lawdoes not enjoin a duty on the prosecution to leadevidence of such character which is almost impossibleto be led or at any rate extremely difficult to be led.The duty on the prosecution is to lead such evidencewhich it is capable of leading, having regard to thefacts and circumstances of the case. Here it isnecessary to keep in mind Section 106 of theEvidence Act which says that when any fact isespecially within the knowledge of any person, theburden of proving that fact is upon him. Illustration 14Cri Appeal No.52 of 2020(b) appended to this section throws some light on thecontent and scope of this provision and it reads:“(b) A is charged with travellingon a railway without ticket. Theburden of proving that he had aticket is on him.”15.Where an offence like murder is committed insecrecy inside a house, the initial burden to establishthe case would undoubtedly be upon the prosecution,but the nature and amount of evidence to be led by itto establish the charge cannot be of the same degreeas is required in other cases of circumstantialevidence. The burden would be of a comparativelylighter character. In view of Section 106 of theEvidence Act there will be a corresponding burden onthe inmates of the house to give a cogent explanationas to how the crime was committed. The inmates ofthe house cannot get away by simply keeping quietand offering no explanation on the supposed premisethat the burden to establish its case lies entirely uponthe prosecution and there is no duty at all on anaccused to offer any explanation.xxx xxx xxx22.Where an accused is alleged to havecommitted the murder of his wife and the prosecutionsucceeds in leading evidence to show that shortlybefore the commission of crime they were seentogether or the offence takes place in the dwellinghome where the husband also normally resided, it has been consistently held that if the accused does notoffer any explanation how the wife received injuries oroffers an explanation which is found to be false, it is astrong circumstance which indicates that he isresponsible for commission of the crime. …”(Emphasis supplied) 15Cri Appeal No.52 of 202020.In view of the evidence on record, it was for the appellantto explain the circumstances in which his wife met with homicidaldeath. He failed to offer a plausible explanation. The inference thatcould be drawn from the evidence on record is that the appellant isthe author of the homicidal death of his wife. We are at one with thefindings recorded by the trial court. The appeal, therefore, fails. Thesame is dismissed. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] ………..KBP