Criminal Appeal No. 1496 of 2003. Case: Rohidas Manik Kasrale Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 1496 of 2003 |
| Counsel | For Appellant: Arfan Sait, Adv. and For Respondents: K. V. Saste, APP |
| Judges | V. M. Kanade , J. and A. M. Thipsay, J. |
| Issue | Evidence Act (1 of 1872) - Sections 25, 26; Indian Penal Code (45 of 1860) - Sections 300, 304(I) |
| Citation | 2012 CriLJ 917 |
| Judgement Date | December 07, 2011 |
| Court | High Court of Bombay (India) |
Judgment:
A. M. Thipsay, J.
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This Appeal is directed against the judgment and Order dated 22nd August, 2003, passed by the 2nd Additional Sessions Judge, Thane, in Sessions Case No. 78 of 2003, convicting the Appellant, who was the sole accused in that case, of an offence punishable under Section 302 of the Indian Penal Code. The learned Additional Sessions Judge sentenced the Appellant to suffer imprisonment for life and also to pay a fine of ` 1,000/- with a default sentence of six months. The Appellant, being aggrieved by the said order of conviction and sentence, has appealed to this Court.
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The prosecution case before the learned Additional Sessions Judge, Thane, was that the Appellant and his wife Lata used to reside at Room No. 14, Trupti Apartment, Bhola Nagar, Kalwa, Thane, with their two daughters. The Appellant and his wife Lata, both, were working as Insurance Agents in Pana-romic Company. The relations between the Appellant and his wife were not good. The Appellant used to suspect the character of Lata. In November, 2002, during Diwali Vacation, both the daughters of the Appellant and Lata had gone to reside with their maternal uncle Prakash More (PW6). On 13th November, 2002, the Appellant and Lata had gone to Matunga to attend the meeting of the Company and they returned home at 12:30 hours in the midnight. They changed their clothes. That, at that time, three persons of the age group of 18 to 20 came to the house of Appellant and Lata, and started talking to Lata. Those persons were not known to the Appellant and, therefore, he asked Lata about them. Over this, Lata was annoyed and answered in fury that 'they were her stones (sic)', and that 'the Appellant had no business to ask about it'. On this, the said three persons left, but a quarrel took place between the Appellant and Lata. Lata gave a fist blow to the Appellant on his face. The Appellant was angered and he strangulated Lata by pressing her odhni around her neck. Lata died due to the compression of throat. The Appellant, thereafter, called his relatives, including the brothers of Lata, Baburao More (PW3) and Prakash More (PW6). The Appellant told them that three unknown persons had entered the house, made him unconscious by giving a blow and had, thereafter, killed Lata. The Appellant, thereafter, went to Kalwa Police Station and lodged a report in writing (Exhibit 20) implicating himself as the offender. API Tukaram Kamble (PW5) registered a case and arrested the Appellant under Arrest Panchnama (Exhibit 21). API Kamble (PW5) visited the spot. Inquest Panchnama (Exhibit 12) in respect of the dead body was drawn. The dead body was sent for postmortem examination. Dr. Dattatraya Kulkarni (PW4) performed the postmortem examination. The death of Lata was opined to be caused by 'ligature strangulation'. Further investigation was carried out by PI Ashok Pawar (PW7), who carried out Spot Panchnama (Exhibit 13). The Appellant, while he was in police custody, disclosed certain information, pursuant to which one odhni was seized from his house under a Panchnama (Exhibits 14A and 14B). The seized articles, including the nail clippings of the Appellant and blood samples of the deceased Lata, etc. were sent for chemical analysis to the Forensic Science Laboratory, Bombay. The reports from the Chemical Analyzer were received in due course (Exhibits 29 to 34). On completion of investigation, a Charge Sheet was filed against the Appellant.
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The prosecution examined totally seven witnesses during the trial. Sunil Sawant, a Police Constable, who had visited the house of the Appellant along with the Appellant, PI Ashok Pawar (PW7) and Panchas on 14th November, 2002, is the first witness. He had witnessed the production of one Odhni by the Appellant. The second witness Pandurang Gajge is also a Panch in respect of the Inquest Panchanama (Exhibit 12) and the Spot Panchnama (Exhibit 13). He is also a witness in respect of the alleged disclosure statement made by the Appellant and the recovery of one Odhni from the cupboard inside the room of the Appellant under a Panchnama (Exhibits 14A and 14B). The third witness Baburao More, it may be recalled, is the brother of deceased Lata, while the fourth witness is Dr. Dattatraya Kulkarni, who had conducted the post mortem examination on the dead body. The fifth witness is API Tukaram Kamble, who had registered the First Information Report on the basis of information given to him by the Appellant. The sixth witness for the prosecution is Prakash More, another brother of deceased Lata. The seventh witness, as aforesaid, is the Investigating Officer PI Ashok Pawar.
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We have heard Mr. Arfan Sait, the learned Advocate for the Appellant. We have heard Mr. K. V. Saste, the learned APP for the Respondent-State. We have carefully gone through the entire evidence adduced before the learned Additional Sessions Judge, Thane. We have perused the impugned judgment.
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It is contended by Mr. Sait, the learned Advocate for the Appellant, that the prosecution had not been able to prove the charge against the Appellant. He submitted that the conviction of the Appellant, as recorded by the learned Additional Sessions Judge, Thane, is based only on surmises and conjectures. He submitted that the case of the prosecution is based only on the alleged confessional statement made by the Appellant to the Police and, that, the same being inadmissible in evidence, cannot be taken into consideration. He submitted that once the confessional statement is excluded, there was hardly any evidence against the Appellant to hold him guilty. He has relied upon a number of authoritative pronouncements of the Supreme Court of India and one of this Court, in support of the contentions advanced by him, dealing with, inter alia, burden of proof on accused, in view of the provisions of Section 106 of the Evidence Act, effect of absence of explanation of incriminating circumstances and/or a false plea by an accused, etc. We have taken into consideration the principles enunciated therein, which, in our opinion, are well settled.
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It is true that the case against the Appellant is based only on circumstantial evidence. Admittedly, there are no eye witnesses to the incident.
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Whether the circumstances, which are alleged against the Appellant, are satisfactorily proved and, whether such proved circumstances unerringly point out to the Appellant as the culprit, are the questions that need determination.
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That, Lata died an unnatural death due to asphyxia is not in doubt or dispute at all. The evidence of Dr. Kulkarni (PW4) shows that there were following external injuries on the dead body of Lata:
"(i). Ligature mark on the neck, front aspect, horizontal, just below thyroid cartilage, 6.1" x 0.4", 4' right of midline and 2.1" left side of midline, on front of neck on dissection haemorrhages in the muscles and thyroid gland and neck structure, e/o bruising of neck, muscles of neck structure. Haemorrhage int he right and left sub-mandibular glands, lower aspect;
(ii) Linear pressure abrasion on the right side of neck, below injury No. 1, horizontal, 0.8" x 0.1".
(iii) Pressure abrasion on neck, linear just below and medial to injury No. 2 0.2" x 0.1";
(iv) and (v) Pressure abrasions, linear, on the right side of neck, above injury No. 1, 0.2" x 0.1" and 0.2" x 0.1";
(vi) Linear pressure abrasion above injury No. 1 on left side of front of neck, 0.3" x 0.1";
(vii) Linear pressure abrasion, above injury No. 1 on left side of neck, 0.5" x 0.1";
(viii) Linear pressure abrasion above injury No. 2 and left of injury No. 7, 0.2" x 0.1";
(ix) Partially nealed scabbed abrasion, on right knee front, 4 x 0.1"."
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On internal examination, Dr. Kulkarni (PW4) noticed haemorrhage in muscles of neck structure and sub-mandibular glands and thyroid glands. He also mentioned in his evidence the other internal injuries that were noticed by him during the post-mortem examination and submitted that they were corresponding to the external injuries noticed. He had given the cause of death as 'ligature strangulation' and opined the death to be homicidal. His evidence is corroborated by the notes of the post-mortem examination (Exhibit 15) made contemporaneously by him and, therefore, can be safely accepted. As a matter of fact, there is no challenge to his evidence.
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Thus, that the death of Lata was homicidal is satisfactorily established.
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The point which now requires to be determined is whether the Appellant is the culprit.
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It would be appropriate to refer to the evidence of each witness to comprehend what are the circumstances which are appearing against the Appellant in evidence, whether they are satisfactorily established and, whether they lead to the conclusion that the Appellant, indeed, committed the murder of his wife Lata.
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The evidence of Sunil Sawant (PW1), a Police Constable, shows that in the night between 13th and 14th November, 2002, he was on patrolling duty at Kalwa. As per the directions of his superior API Kamathe, he went to the room of the Appellant at about 4:00 a.m. for guarding the place. The room was locked at that time. That, about 5:45 a.m., Police Inspector Pawar (PW7), the Appellant and two Panchas came there and, that, the lock was opened by the Appellant. That, the Appellant entered the room and produced one Odhni from a cupboard, which was taken charge of under a Panchnama. The time 5:45 a.m., as mentioned by this witness, does not seem to be correct, in view of the other evidence and it appears that it was meant to be 5:45 p.m. Anyway, this is not very significant in the circumstances and in the view that we are taking.
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The evidence of Gajge (PW2), a Panch, shows that on 14th November, 2002, in the morning, he was taken by the Police to the house of the Appellant, where Inquest Panchnama (Exhibit-12) of the dead body of Lata was drawn. A Spot Panchnama (Exhibit-13) was also drawn. That, on the same day, this witness was...
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