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2009 Supreme(Bom) 795
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.H. MARLAPALLE & S. J. VAZIFDAR, J.
Satish Kumar Agarwal - Appellant
Vs.
State - Respondent
Criminal Appeal No.186 of 1989
Decided on : 6th July, 2009.
Mr. A. P. MUNDARGl. Sr. Counsel with Mr. NIRANJAN MUNDARGE for Appellant.
Mr. D. A. NALAWADE for Union Territory of Dadra Nagar Haveli, Mr. P. S. HINGORANI. API' for State.
Headnote:Indian Penal Code, 1860 - Section 300 - Offence of murder - Disclosure of injuries - Duty of prosecution for same - Held - The prosecution is not obliged to explain the injuries on the person of the accused in all cases and in all circumstances - It is not law.
Indian Penal Code, 1860 - Section 302 - Code of Criminal Procedure, 1973, Sections 374, 428 and 433 - Appeal against conviction under Section 302, IPC - Death of wife and two daughters by throttling proved by medical evidence - No explanation as to now death caused by throttling - Held - Conviction proper - Prosecution proved his case - Accused entitled for benefit of set-off under Section 428 of CrPC. - In the instant case the prosecution having established its case and on the other hand the accused having failed to offer any explanation as to how his wife and two daughters met a homicidal death by throttling Section 106 of the Indian Evidence Act, 1872 comes into play.
Court is thus satisfied that the prosecution case, on the basis of the circumstantial evidence has been established beyond any reasonable doubt and the findings set out by the trial Court holding the accused guilty under Section 302 of IPC is required to be confirmed.
On the point of sentence it was submitted by ’M’, the leaned senior counsel for the accused that the evidence of the prosecution itself went to show that there was no motive attributed to the accused while committing the murders and it appears to be the case that he lost his self control after losing money in gambling and in that frustration he decided to kill his family members and himself. It was further stated that it was not a pre-planned or designed crime that the accused committed. There was no evidence that he was ill-treating his wife or had any grouse against her. ’M’ pointed out the evidence of PW 6 Dr. ’P’ and PW 11 Dr. ’V’ to show that the accused was holding the dead body of his youngest daughter and crying and the confessions made to Dr. ’A’ were eloquent to demonstrate his repentance and that there was no motive to do away his family members Mr. ’M’ also submitted that the incident had taken place on 23.6.1987 the order of conviction and sentence was passed on 4.12.1989 and thereafter the accused has been on bail for the last about 20 years. The accused was 32 years of the age when the incident had taken place and as of now he has attained the age of 55 years.
Section 302 of IPC prescribes the sentence of life imprisonment or death and the trial Court in the instant case considering all the submissions made by the defence as well as the prosecution has awarded the RI for life. It is true that the accused had been on bail for the last about 20 years or so but that by itself cannot be a reason and in fact Section 302 of IPC does not permit to do so, to award any other sentence short of RI for life or death sentence. This appeal has been pending for the last about 20 years and it is imperative for the Bar and the Bench to work out appropriate methodology so as to ensure that in future such appeals do not remain pending for more than 3 to 5 years. When the trial Court completed the trial within a period of two years there is no justification why the appeal should remain pending for more than 20 years. Be that as it may, Court is satisfied that the order of sentence also requires to be confirmed. However, as and when the case of the accused is being considered for commutation under Section 433 of CrPC by the competent authority or completion of minimum sentence of 14 years the said authority may consider his case sympathetically having regard to the peculiar facts of this case.
In the premises this appeal fails and the same is hereby dismissed. The order of conviction and sentence is confirmed. The bail granted to the accused stands concealed and the accused shall surrender to undergo the sentence within a period of two weeks from today. The accused shall be entitled for the benefit of set-off, if any, under Section 428 of CrPC.
Indian Penal Code, 1860 - Sections 300, 304, Part-II. Where accused murdered his wife and children was trying to kill himself he admitted his offence in extra judicial confession before doctor, no explanation given by accused how his family met with death, some injuries found on his person could have been caused while throttling his family members, circumstantial evidence establishing guilt of accused beyond doubt, his conviction in proper.
It is said that Alcoholism coupled with gambling has the power to free a man from the shackles of self control and unleash bloody paths, but this case goes much beyond that general belief and puts up a gory story of triple murders by a loving and caring husband and father who was liberated from self control by alcoholism and gambling. He killed his dearest wife and two daughters while they were fast asleep and attempted to end his life as well but destiny had ordained a different course, namely, he survived and faced a trial and perhaps die as a prisoner as the very same vices saved him from going to the gallows.
2. The appellant was married to Lalitaben sometimes in the year 1979-80 and begot two daughters, elder daughter Sushma was 7 years of age and younger daughter Anjana was only eight month old when the incident took place on 23/6/1987. He was living with his wife and children in the rear portion of family house at Jain Street, Daman whereas front portion of the said house was occupied by his brother Rakesh Agarwal and his family. He was running a grocery shop in partnership with his brothers. The parents of Lalitaben as also some of her brothers i.e. Ramsharan and Dr. Ashok were staying at Udhwadha and another brother Dr. Vaishya was staying at Jampaber street at Nani Daman.
As per the prosecution case on 22/6/ 1987 the accused had gone to his in-law's place at Udhwada along with his family and two children and he returned to his residence at about 9.45 p.m. along with the family. His brother Rakesh returned home on the same day at about 22.30 hours and found that Lalitaben was at home with children but the accused was missing. On his enquiry Lalitaben told him that the accused had gone to Vapi but Rakesh suspected that the accused could have gone near the talav for gambling and, therefore, he went in search of the accused but did not find him. However, the accused returned home at about 11.40 p.m. and went to his room. On the next day i.e. on 23/6/1987 at about 6.45 a.m. Rakesh told his wife Jyotiben to get Anjana, the younger daughter of the accused from the house of the accused and, therefore, Jyotiben went to the house of accused and returned with a slip of paper and showed it to Rakesh. It was written
in Hindi by the accused stating that he had killed all three of his family and that he was going to kill himself by jumping in the sea. Rakesh, therefore, went to the house of accused and noticed that Lalitaben and her two daughters were lying dead on the bed. He rushed towards seashore and sent his son Pavan to inform Dr. Vaishya. At the seashore he met Mahesh the son of his another brother Gopal. At that time he saw the accused being brought on a canoe by some fishermen and Rakesh and Gopal took the accused home. On the way Rakesh enquired from the accused as to why he had killed his wife and two daughters. The accused replied that on the previous night he had lost a lot of money on gambling and he had decided to kill them and end his own life as well. It is further the case of the prosecution that at about 7 a.m. on 23/6/1987 when Hirabhai Tandel, a fisherman with his brother was fishing near the bridge, he had heard a big sound in the water and also heard people saying "Pakado pakado" and that he rescued the accused from the sea/river water with their canoe and at that time the accused is reported to have asked them as to why they saved him when he wanted to die and that he had come after assaulting. He uttered the words "mai marine aviyo". Hirabhai Tandel and his brother had brought him to the shore and handed over to one Magan Tandel. Dr. Vaishya on reaching
