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2013 Supreme(Bom) 1508

HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI & MRIDULA BHATKAR, JJ.
Nayana Chandrakant Kamble
Versus
The State of Maharashtra
Criminal Appeal No.181 of 2010
Decided On : 07-08-2013

Advocates Appeared:
For the Appellant:Sanjeev P. Kadam, Advocate.
For the Respondent: Mrs. S.V. Gajare – Dhumal, APP.

Headnote:Evidence Act, 1872 - Section 106 - Burden of proof.

       In a case resting on circumstantial evidence, failure of accused to adduce any explanation in discharge of burden placed on him, provides an additional link to complete chain.

       [Indian] Penal Code, 1860 - Section 304 Part-I - Evidence Act, Section 106 - Conviction for offence of murder.

       Though facts pointing towards guilt of accused but since husband deceased, a drunkard, often used to quarrel and assault accused wife hence accused liable to be convicted under Section 304 Part-I and not under Section 302, IPC.

       

JUDGMENT :

Tahilramani, J.

1. The appellant has preferred this appeal against the judgment and order dated 24.2.2010 passed by the learned Adhoc Additional Sessions Judge, Mumbai in Sessions Case No.67 of 2009. By the said judgment and order, the learned Sessions Judge convicted the appellant under section 302 of the Indian Penal Code and sentenced her to life imprisonment and fine of Rs.3,000/-, in default, R.I. for one year.

2. The prosecution case briefly stated is as under:

The appellant was residing in the servant's quarter of naval officer Lt. Vishal Sharma PW7 who was serving in the navy. Lt. Vishal Sharma is the complainant in the present case and he was residing at Naval Officer's Flat, Sasoon Complex, Colaba, Mumbai. Lt. Vishal Sharma had engaged the appellant as maid servant since April 2007. The husband of the appellant was addicted to liquor and he used to quarrel with the appellant after consuming liquor and assault her.

On 28.09.2008 at about 8.15 p.m., the appellant came to the house of the complainant at about 10.00 p.m. to do some household work and returned to the servant's quarter. At that time, Lt. Vishal Sharma had heard quarrel between the appellant and her husband. This continued for about 30 to 40 minutes. Thereafter, the complainant went to the house of the appellant which was adjoining his house. After knocking on the door, he told the appellant to maintain peace otherwise he would complain to Naval authorities for taking action against the appellant and her husband. Thereafter also both of the appellant and her husband continued with the quarrel. So the complainant again went to the servant's quarter and warned them to keep quiet. However, thereafter even at 11.00 p.m., the appellant and her husband continued with the quarrel. Meanwhile the complainant informed the security officer PW3 Atulkumar at the main entrance and asked him to come to his flat on account of disturbance caused by the appellant and her husband. After about 15 minutes i.e., at about 11.30 p.m, Naval security person PW3 Atulkumar called the complainant on telephone and informed that the appellant had come down alone to the gate and her legs and hands were bloodstained. This fact was informed to the Naval police control room. After about 10 minutes, PW3 Atulkumar Naval security person came with the complainant Lt. Vishal Sharma to the quarter of the appellant. When they went inside the quarter of the appellant, they found husband of the appellant was lying down and he was covered with a blanket upto the neck. They noticed injury on back of his head and they saw blood near the bathroom of the quarter. They also noticed that the floor was wet and it was freshly cleaned. The complainant made inquiry with the appellant about what had happened and the appellant told them that her husband might have got injured due to fall in drunken state and sustained injuries.

3. The appellant was told to take her husband to the hospital by PW7 and other witnesses. PW9 Dr.Murkey examined the husband of the appellant. Dr.Murkey found 12 CLW on the body of Chandrakant. Chandrakant was treated, however, during the course of treatment, he died. PW7 Lt.Vishal Sharma lodged the FIR. Thereafter, investigation commenced. After completion of investigation, chargesheet came to be filed.

4. Charge came to be framed against the appellant u/s 302 of the Indian Penal Code. She pleaded not guilty to the said charge and claimed to be tried. Her 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.

5. We have heard the learned advocate for the appellant and the learned APP for the State. We have considered their submissions, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the same, we are of opinion that the appellant caused the d















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