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2019 Supreme(Bom) 1790
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
T.V. NALAWADE, K.K. SONAWANE, JJ.
Kiran - Appellant
Versus
State Of Maharashtra Through Police Station Shiradhon - Respondent
Criminal Appeal No. 57 of 2014
Decided On : 23-09-2019
Advocate Appeared:
V.R. Dhorde, Adv., D.S. Jape, Adv.
Headnote:
Evidence Act - Section 17 - Indian Penal Code - Section 302 – Criminal Procedure Code - Section 313 - Offence of murder - Rigorous imprisonment - Deceased was the wife of present appellant - Their marriage had taken place and incident in question took place - On that day deceased was lying injured on the road and spot is situated in the vicinity of field of appellant - Appellant informed first to his father that the deceased had accidental fall from motorcycle and her condition was serious - This information was passed to Police - He went to the spot - She was already dead. Police gave report about the unnatural death and A.D. came to be registered - During inquiry of A.D. inquest was prepared - Spot was prepared and the dead body was referred for post mortem examination - P.M. examination revealed that it was death due to cardio respiratory arrest due to asphyxia due to throttling - Father of deceased gave report to police and the crime came to be registered on the basis of this report for offence of murder and as there was allegation of ill-treatment also crime was registered for offence punishable under section 498-A of IPC against all the accused - As information was given to police on that day that accused/appellant had taken the deceased to medical practitioner practicing homeopathy, police made inquiry with and it revealed that they had left her dispensary - In view of the allegations made in F.I.R. and aforesaid circumstances charge sheet came to be filed for aforesaid offences – Held, Information given to Police by the appellant was false - Aforesaid evidence does not create a probability that when the motorcycle was in stationary condition and when deceased was trying to alight from motorcycle she accidentally fell on the road and she sustained such injuries - Submissions made by learned counsel for appellant in the appeal that accidentally of Sari got fixed in the spokes of wheel and due to that there was strangulation is not acceptable - Aforesaid record does not show that when spot and inquest were prepared was around the neck - In any case would have acted as ligature material and the ligature marks would have been noted on the neck - Further if motorcycle was stationary, it does not look probable that so much of force could have been there which could have strangulated neck - Circumstance that was not found entangled with the spoke of wheel is sufficient to infer that there was no such possibility - Thus it is homicide and not accidental death - Evidence report given by and also the statement given by appellant under section 313 of Criminal Procedure Code show that the appellant admitted that on that night he was in company of deceased and information was given to Police that the deceased had a fall from motorcycle - In statement given under section 313 of Criminal Procedure Code accused No. 1 has contended that only he was present near the dead body when Police went to the spot - His other answers given under section 313 of Criminal Procedure Code show that the deceased was in his company right from dispensary of PW 5 up the spot and only he was present when the incident took place - Evidence on the record shows that he supplied false information that deceased had fall from his motorcycle - This giving of false information can be used against appellant as incriminating circumstance and that falls under section 8 of Evidence Act - Prosecution evidence is sufficient for allowing the use of provision of section 106 of Evidence Act against present appellant and as there are aforesaid circumstances only inference available under section 114 of Evidence Act is that it is the accused/appellant who has committed the murder - No other probability is created by the evidence on the record and all necessary circumstances are fully established by the State - Even if there is no evidence on record on motive as already observed that circumstance is not coming in way of prosecution to prove that circumstances are pointing finger only to accused - Appeal stands dismissed
JUDGMENT :
T.V. NALAWADE, J.
1. The appeal is filed against the judgment and order of Sessions Case No. 124/2013 which was pending in the Court of learned Additional Sessions Judge, Osmanabad. The Trial Court has convicted the appellant of the offence punishable under section 302 of Indian Penal Code (hereinafter referred to as 'IPC' for short) and he is sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/-. The other accused, parents of the appellants are acquitted of all the offences by the Trial Court. Heard both the sides.
2. In short, the facts leading to the institution of the appeal can be stated as follows :-
3. The deceased was the wife of present appellant. Their marriage had taken place on 7.5.2009 and incident in question took place on 27.9.2012. On that day, the deceased was lying injured on the road and spot is situated in the vicinity of the field of appellant. The appellant informed first to his father that the deceased had accidental fall from motorcycle and her condition was serious. This information was passed to Police Patil Shri. Maruti Avahad (PW 1). He went to the spot. She was already dead. Police Patil gave report about the unnatural death on 28.9.2012 and A.D. came to be registered at 00.30 hours. During inquiry of A.D. inquest was prepared. The spot panchanama was prepared and the dead body was referred for post mortem (P.M.) examination. The P.M. examination revealed that it was death due to cardiorespiratory arrest due to asphyxia due to throttling. The P.M. was conducted between 10.00 a.m. and 10.40 a.m. on 28.9.2012.
4. Khandu Musale (PW 4), father of the deceased gave report to police on 28.9.2012 and the crime came to be registered at 12.30 p.m. on the basis of this report for offence of murder and as there was allegation, of illtreatment also, the crime was registered for offence punishable under section 498-A of IPC against all the accused.
5. As information was given to police on that day that accused/appellant had taken the deceased to medical practitioner practicing homeopathy, police made inquiry with Dr. Dolare (PW 5) and it revealed that they had left her dispensary at about 8.15 to 8.30 p.m. In view of the allegations made in the F.I.R. and aforesaid circumstances, chargesheet came to be filed for aforesaid offences.
6. In the Trial Court, prosecution examined in all nine witnesses. The charge for the offence of murder was framed against all the three accused.
7. The evidence of Dr. Dolare (PW 5) shows that on 27.9.2012 only accused No. 1/appellant and the deceased had visited her dispensary. There was a complaint of pain in ear of deceased. Some medicines were given and they had left the dispensary at about 8.15 to 8.30 p.m. The doctor is having dispensary at village Tandulja and the appellant is resident of village Raigavhan, Tahsil Kallam. The evidence of Maruti Avahad (PW 1), Police Patil shows that the distance between Tandulja and Raigavhan is around 7 k.m. His evidence also shows that the spot is situated at the distance of around 200 ft. from the house of appellant. The spot panchanama is admitted by the defence and that document, Exh. 22 shows that it was drawn on 28.9.2012 between 6.00 and 7.00 a.m. during inquiry of A.D. This document shows that the spot is situated on Tandulja - Raigavhan road and it is by the side of the field of the appellant.
8. The dead body was lying near side Patti of southern side of road. There was a Sari on the dead body. Some pieces of bangles were lying near the dead body. The inquest panchanama at Exh. 18 is also admitted by the defence and it was prepared between 7.30 and 8.00 a.m. of 28.9.2012. It shows that the bangles of the left hand were found broken and due to that there were injuries to the wrist. The panchas noticed that on the right side of face, there was swelling and on the head, there was injury and the blood had come out. Froth had come from mouth and nose.
9. The evidence of Avahad (PW 1) shows that at about 10.00
