Bombay High Court: Reiterating the principle laid down under section 106 of Indian Evidence Act, the Court upheld the conviction of a lady who strangled her husband to death. The Court, relying upon recent judgments of the Supreme court, observed that that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. The Court was of the opinion that in a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. [Sonali Santosh Giri Vs. State of Maharashtra,Criminal Appeal No.383 of 2011, decided on November 27, 2013]
This appeal is directed by the appellant-original accused
against the judgment and order dated 29.10.2010 passed by the
learned Additional Sessions Judge, Bombay in Sessions Case No. 251
of 2010.
By the said judgment and order, the learned Sessions
Judge convicted the appellant under Section 302 of IPC and
sentenced her to R.I. for life and to pay a fine of Rs. 2000/- in default
S.I. for three months.
2 The prosecution case, briefly stated, is as under:
(i) The deceased Santosh was the brother of PW-3 Sanjay
Giri. Santosh was residing with his wife i.e. the appellant in Room
No. 322, Ramabai Colony, Ghatkopar. The said room was taken on
rent by the appellant and the deceased from PW-4 Vanita. They had
one daughter who was minor at the time of the incident. The
appellant was working in Beer Bar. PW-2 Ranjana was also working
in the said Beer Bar as the appellant.
The appellant used to tell
Ranjana that her husband was harassing her and used to beat her
after consuming liquor. On 30.12.2009, the appellant came in the
Beer Bar at about 1.00 p.m.
She consumed liquor and after the
work, she left the Bar at about 9.30 p.m. to go to her house.
(ii)
It is the prosecution case that in the night between
30.12.2009 and 31.12.2009, the appellant committed murder of her
husband by strangulating him.
Thereafter, in the morning on
31.12.2009, she called PW-3 Sanjay who is the brother of the
deceased and informed him that Santosh had hanged himself and
she had brought down his body. Sanjay went to the house of the
appellant and saw his brother Santosh was lying on the ground.
the police about the incident.
People gathered on the spot. One person from the crowd informed
PW-1 PSI Dorgude was attached to
Pantnagar Police Station, Ghatkopar. On 31.12.2009 at about 7.45
a.m. he received a message from the control room that he had to
reach to Rajawadi hospital as one person was shifted there. He then
went to the hospital. He was told by the Doctor that the said person
was declared dead before admission at about 7.55 hours. He came
to know that the deceased was Santosh Giri. He met PW-3 Sanjay
the brother of the deceased, who informed him that the wife of the
hanging himself.
deceased had informed him that the deceased committed suicide by
The body of Santosh was sent for post-mortem.
The post-mortem notes were received in the evening on the very
same day. Post-mortem notes showed that the deceased died `due
to strangulation'. PW-1 PSI Dorugade then lodged F.I.R. Thereafter,
investigation commenced.
After completion of investigation, the
charge sheet came to be filed against the appellant. In due course,
the case was committed to the Court of Sessions.
Charge came to be framed against the appellant under
section 302 of IPC.
The appellant pleaded not guilty to the said
charge and claimed to be tried. The defence of the appellant 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.
We have heard the learned Advocate for the Appellant and
the learned A.P.P. for the State.
After giving our anxious
consideration to the facts and circumstances of the case, arguments
advanced by the learned Advocates for the parties, the judgment
delivered by the learned Sessions Judge and the evidence on record,
below, we are of the opinion that the
for the reasons stated
appellant strangulated her husband and caused his death.
There is no eye witness in the present case and the case
is entirely based on the circumstantial evidence. The circumstances
against the appellant, are as under:
(i) motive;
(ii) the appellant and the deceased were the only
adults in the house. Besides them, only minor daughter
was staying in their house;
(iii)
the deceased gave false explanation that her
husband had committed suicide by hanging himself. The
post-mortem notes and the evidence clearly show that it
was a case of strangulation;
(iv)
false explanation was given by the appellant
(v)
that her husband committed suicide by hanging himself;
various injuries were seen on the body of the
deceased;
The evidence of PW-2 Ranjana shows that Ranjana as well
as the appellant were working in the Bar. The appellant used to tell
consuming liquor.
her that her husband was harassing her and used to beat her after
This shows that the deceased was constantly
harassing his wife i.e. the appellant, due to which, she was fed up
and she committed his murder by strangulating him. It is not the
case of the appellant that the deceased was under depression or he
was disappointed or he was fed up, due to which, he committed
On the contrary, undisputed fact has come on record that
suicide.
the deceased was harassing the appellant which clearly shows the
motive for crime. In case of circumstantial evidence, motive always
assumes great significance.
7
That the deceased died a homicidal death is clear from
the medical evidence. PW-6 Dr. Bhale Patil conducted post-mortem
on the dead body of Santosh.
Dr. Bhale Patil found the following
external injuries on the body of Santosh:
"(1)
Evidence of ligature mark over the neck region
below thyroid cartilage;
Total neck circumference at the level of thyroid
(2)
cartilage is 38 cm.;
Ligature mark (L.M.) is present 11 cm. below
(3)
the chin anteriorly it passes, laterally backwards and
upward. On right side- ligature mark passes 5 cm. below
the ear lobule and then passes to the posterior hair line.
On left side- ligature mark passes 6 cm. below the left ear
lobule and passes backward and upward to the nape of
Ligature mark is glistening, grooved, parchment
(4)
ig
neck;
paper like hard to feel. It is reddish brown in colour. Total
length (circumference) of ligature mark 31 cm. and its
width ranges from 1 cm. to 1.5 cm.;
On dissection of neck and ligature mark:
i) (5) There is contusion and ecchimossin seen in the
skin below the ligature mark;
ii)
There is contusion and hemorrhage is seen in
substaneous issue and scrape muscle of neck;
iii)
Paratracheal contusion with hemorrhage with
blood clots noted on both sides of neck;
iv) There is fracture of hyoid bone right corneue;
(6) Contused abrasion over the supraclavicular
region 3 cm. above the right clavicle and 4 cm. from
midline with 0.5 cm. x 0.2 cm., curved nail mark noted.
Placed 6 cm. below the ligature mark. Reddish brown in
(7)
colour;
Contusion abrasion noted 2.5 cm. above left
nipple, scratch abrasion reddish brown in colour, size 5
cm. x 0.5 cm. and it is placed 6 cms. from midline towards
(8)
left horizontally oblique;
Contusion abrasion of size 1 cm. x 0.5 cm.
ig
vertically obliquely placed 5 cm. above right nipple,
(9)
reddish brown in colour;
Contusion abrasion 8 cm. above the nipple, 4
cm. from midline, horizontally obliquely placed size 4 cm.
x 0.5 cm. reddish brown in colour;
(10)
Contused abrasion scratch mark present at the
lateral third of infra clavicular region vertically oblique size
4 cm. x 0.5 cm.
(11)
Contused abrasion over the left side of chest
infraclavicular region, multiple in number, size ranges
from 3 cm. to 0.5 cm. x 0.5 cm., nail marks noted all
reddish brown in colour;
(12)
Multiple
contused
abrasion,
scratch
mark
present over the right side of chest, 10 cm. above the
nipple near the sternum 2 cm. from midline, nail mark
reddish brown in colour."
the body of Santosh:
"(1)
Larynx on both side of posterior wall there is
contusion noted. Reddish in colour;
Trachea
and
congested;
Tracheal
Mucosa
Both lungs show petechial hemorrhage on cut
ig
(3)
Bronchi-
(2)
On internal examination, following injuries were found on
section- congestion."
In the opinion of Doctor, the cause of death was "asphyxia
due to strangulation (unnatural)". According to the Doctor, in case
of hanging, the ligature mark is oblique, non-continuous, placed high
up in the neck between the chin and the larynx, the base of the
groove or furrow being hard, yellow and parchment like, whilst in the
case of strangulation the ligature mark is horizontal, or transverse,
continuous round the neck, low down in the neck below the thyroid,
the base of the groove or furrow being soft and reddish.
The
evidence of Dr. Bhale Patil and the P.M. Report Exh. 22 confirm that
the
deceased
died
due
to
strangulation.
The
aforesaid
circumstances particularly the absence of gap in ligature mark and
same having been found below larynx falsified the plea taken by the
appellant that the deceased had died due to hanging and ruled out
the probability that the death of deceased was suicidal in nature.
The converse is that the ligature marks were homicidal. Therefore, it
becomes obvious that it is the accused who is the author of the said
death.
8
From the evidence of PW-4 Vanita who was the landlady of
the appellant and the deceased, it is seen that the appellant and the
deceased were the only adults residing in the said room and when
ig
PW-3 Sanjay was called, one of them was alive and other was dead.
In such case, the appellant had to explain the injuries on the
deceased and how he met his death. Onus lies on the appellant to
explain the circumstances as to how the deceased died as it is within
the exclusive knowledge of the appellant. In this view of the matter,
Section 106 of the Evidence Act would come into play.
connection,
In this
we may refer to Section 106 of the Evidence Act.
Section 106 of the Evidence Act provides that when any fact is
especially within the knowledge of any person, the burden of proving
that fact is upon him.
In several recent decisions, the Supreme
Court has held that the principle which underlies Section 106 of the
Evidence Act, can be applied in cases where certain facts are
especially within the knowledge of a person. In the case of State
of Rajasthan Vs. Kashi Ram1, the Supreme Court has observed
1 (2006)12 SCC 254 : AIR 2007 SC 144
that if the accused fails to offer an explanation on the basis of facts
within his special knowledge, he fails to discharge the burden cast
upon him by Section 106 of the Evidence Act. In a case resting on
circumstantial evidence if the accused fails to offer a reasonable
explanation in discharge of the burden placed on him, that itself
provides an additional link in the chain of circumstances proved
Section 106 does not shift the burden of proof in a
against him.
criminal trial, which is always upon the prosecution. It lays down the
rule that when the accused does not throw any light upon facts
which are specially within his knowledge and which could not
support any theory or hypothesis compatible with his innocence, the
Court can consider his failure to adduce any explanation as an
additional link which completes the chain.
Ms. Gonsalvez, the learned advocate for the appellant
submitted that there is no evidence to show that the appellant was
in the house on the night of the incident. As far as this aspect is
concerned, the evidence of PW-2 Ranjana shows that on 30.12.2009
the appellant had come to the Bar at about 1.00 p.m., the appellant
then consumed liquor in the Bar, the appellant left the Bar at about
9.30 p.m. to go to her house. Obviously at 9.30 p.m. at night the
appellant would return to her house and would not be roaming on
the streets
or
go
elsewhere.
The
evidence of PW-2 Ranjana
shows that the appellant went to her house. Moreover, it would be
the natural conduct on the part of the appellant to go to her house
Moreover, at 9.30 p.m. it was
after working hours are over.
expected that the appellant would go to her own house and not go
elsewhere. The evidence of PW-3 Sanjay who is the brother of the
deceased and brother-in-law of the appellant, shows that in the
morning of 31.12.2009, he received a message from the appellant
that his brother Santosh had hanged himself and she had brought
This clearly shows that in the morning on
down his body.
31.12.2009, the appellant was certainly in the house. It is not the
case of the appellant that she came home in the morning and saw
her husband hanging. Moreover, the appellant has given a totally
false story to Sanjay that his brother had hanged himself.
The
medical evidence shows that it was not a case of hanging but it was
a case of strangulation. Various injuries were seen on the body of
Santosh which belie her case of suicide. These injuries show that it
was a case of murder and not of suicide.
This false explanation
given by the appellant furnishes one more link in the chain of
circumstances which proves the guilt of the appellant.
From the
medical evidence, it is clear that the deceased died in unnatural
circumstances in his room. The house in which the appellant and
the deceased resided, was a single small room.
Therefore, the
burden of proof lay upon the appellant to show under what
circumstances death was caused to her husband. The onus was on
her but she failed to discharge the same. In addition, she has given
All these
false explanation in relation to death of her husband.
circumstances form a chain which excludes any possibility of some
other person committing the crime.
The circumstances clearly
indicate that it is the appellant alone who is responsible for the
On going through the record, we find that there is
commission of the crime.
sufficient evidence to prove that the appellant committed the
murder of her husband. Thus, we find no merit in the appeal. The
appeal is, therefore, dismissed.
[SMT.V.K.TAHILRAMANI, J.]
[ V.L. ACHLIYA, J. ]
Print Page
This appeal is directed by the appellant-original accused
against the judgment and order dated 29.10.2010 passed by the
learned Additional Sessions Judge, Bombay in Sessions Case No. 251
of 2010.
By the said judgment and order, the learned Sessions
Judge convicted the appellant under Section 302 of IPC and
sentenced her to R.I. for life and to pay a fine of Rs. 2000/- in default
S.I. for three months.
2 The prosecution case, briefly stated, is as under:
(i) The deceased Santosh was the brother of PW-3 Sanjay
Giri. Santosh was residing with his wife i.e. the appellant in Room
No. 322, Ramabai Colony, Ghatkopar. The said room was taken on
rent by the appellant and the deceased from PW-4 Vanita. They had
one daughter who was minor at the time of the incident. The
appellant was working in Beer Bar. PW-2 Ranjana was also working
in the said Beer Bar as the appellant.
The appellant used to tell
Ranjana that her husband was harassing her and used to beat her
after consuming liquor. On 30.12.2009, the appellant came in the
Beer Bar at about 1.00 p.m.
She consumed liquor and after the
work, she left the Bar at about 9.30 p.m. to go to her house.
(ii)
It is the prosecution case that in the night between
30.12.2009 and 31.12.2009, the appellant committed murder of her
husband by strangulating him.
Thereafter, in the morning on
31.12.2009, she called PW-3 Sanjay who is the brother of the
deceased and informed him that Santosh had hanged himself and
she had brought down his body. Sanjay went to the house of the
appellant and saw his brother Santosh was lying on the ground.
the police about the incident.
People gathered on the spot. One person from the crowd informed
PW-1 PSI Dorgude was attached to
Pantnagar Police Station, Ghatkopar. On 31.12.2009 at about 7.45
a.m. he received a message from the control room that he had to
reach to Rajawadi hospital as one person was shifted there. He then
went to the hospital. He was told by the Doctor that the said person
was declared dead before admission at about 7.55 hours. He came
to know that the deceased was Santosh Giri. He met PW-3 Sanjay
the brother of the deceased, who informed him that the wife of the
hanging himself.
deceased had informed him that the deceased committed suicide by
The body of Santosh was sent for post-mortem.
The post-mortem notes were received in the evening on the very
same day. Post-mortem notes showed that the deceased died `due
to strangulation'. PW-1 PSI Dorugade then lodged F.I.R. Thereafter,
investigation commenced.
After completion of investigation, the
charge sheet came to be filed against the appellant. In due course,
the case was committed to the Court of Sessions.
Charge came to be framed against the appellant under
section 302 of IPC.
The appellant pleaded not guilty to the said
charge and claimed to be tried. The defence of the appellant 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.
We have heard the learned Advocate for the Appellant and
the learned A.P.P. for the State.
After giving our anxious
consideration to the facts and circumstances of the case, arguments
advanced by the learned Advocates for the parties, the judgment
delivered by the learned Sessions Judge and the evidence on record,
below, we are of the opinion that the
for the reasons stated
appellant strangulated her husband and caused his death.
There is no eye witness in the present case and the case
is entirely based on the circumstantial evidence. The circumstances
against the appellant, are as under:
(i) motive;
(ii) the appellant and the deceased were the only
adults in the house. Besides them, only minor daughter
was staying in their house;
(iii)
the deceased gave false explanation that her
husband had committed suicide by hanging himself. The
post-mortem notes and the evidence clearly show that it
was a case of strangulation;
(iv)
false explanation was given by the appellant
(v)
that her husband committed suicide by hanging himself;
various injuries were seen on the body of the
deceased;
The evidence of PW-2 Ranjana shows that Ranjana as well
as the appellant were working in the Bar. The appellant used to tell
consuming liquor.
her that her husband was harassing her and used to beat her after
This shows that the deceased was constantly
harassing his wife i.e. the appellant, due to which, she was fed up
and she committed his murder by strangulating him. It is not the
case of the appellant that the deceased was under depression or he
was disappointed or he was fed up, due to which, he committed
On the contrary, undisputed fact has come on record that
suicide.
the deceased was harassing the appellant which clearly shows the
motive for crime. In case of circumstantial evidence, motive always
assumes great significance.
7
That the deceased died a homicidal death is clear from
the medical evidence. PW-6 Dr. Bhale Patil conducted post-mortem
on the dead body of Santosh.
Dr. Bhale Patil found the following
external injuries on the body of Santosh:
"(1)
Evidence of ligature mark over the neck region
below thyroid cartilage;
Total neck circumference at the level of thyroid
(2)
cartilage is 38 cm.;
Ligature mark (L.M.) is present 11 cm. below
(3)
the chin anteriorly it passes, laterally backwards and
upward. On right side- ligature mark passes 5 cm. below
the ear lobule and then passes to the posterior hair line.
On left side- ligature mark passes 6 cm. below the left ear
lobule and passes backward and upward to the nape of
Ligature mark is glistening, grooved, parchment
(4)
ig
neck;
paper like hard to feel. It is reddish brown in colour. Total
length (circumference) of ligature mark 31 cm. and its
width ranges from 1 cm. to 1.5 cm.;
On dissection of neck and ligature mark:
i) (5) There is contusion and ecchimossin seen in the
skin below the ligature mark;
ii)
There is contusion and hemorrhage is seen in
substaneous issue and scrape muscle of neck;
iii)
Paratracheal contusion with hemorrhage with
blood clots noted on both sides of neck;
iv) There is fracture of hyoid bone right corneue;
(6) Contused abrasion over the supraclavicular
region 3 cm. above the right clavicle and 4 cm. from
midline with 0.5 cm. x 0.2 cm., curved nail mark noted.
Placed 6 cm. below the ligature mark. Reddish brown in
(7)
colour;
Contusion abrasion noted 2.5 cm. above left
nipple, scratch abrasion reddish brown in colour, size 5
cm. x 0.5 cm. and it is placed 6 cms. from midline towards
(8)
left horizontally oblique;
Contusion abrasion of size 1 cm. x 0.5 cm.
ig
vertically obliquely placed 5 cm. above right nipple,
(9)
reddish brown in colour;
Contusion abrasion 8 cm. above the nipple, 4
cm. from midline, horizontally obliquely placed size 4 cm.
x 0.5 cm. reddish brown in colour;
(10)
Contused abrasion scratch mark present at the
lateral third of infra clavicular region vertically oblique size
4 cm. x 0.5 cm.
(11)
Contused abrasion over the left side of chest
infraclavicular region, multiple in number, size ranges
from 3 cm. to 0.5 cm. x 0.5 cm., nail marks noted all
reddish brown in colour;
(12)
Multiple
contused
abrasion,
scratch
mark
present over the right side of chest, 10 cm. above the
nipple near the sternum 2 cm. from midline, nail mark
reddish brown in colour."
the body of Santosh:
"(1)
Larynx on both side of posterior wall there is
contusion noted. Reddish in colour;
Trachea
and
congested;
Tracheal
Mucosa
Both lungs show petechial hemorrhage on cut
ig
(3)
Bronchi-
(2)
On internal examination, following injuries were found on
section- congestion."
In the opinion of Doctor, the cause of death was "asphyxia
due to strangulation (unnatural)". According to the Doctor, in case
of hanging, the ligature mark is oblique, non-continuous, placed high
up in the neck between the chin and the larynx, the base of the
groove or furrow being hard, yellow and parchment like, whilst in the
case of strangulation the ligature mark is horizontal, or transverse,
continuous round the neck, low down in the neck below the thyroid,
the base of the groove or furrow being soft and reddish.
The
evidence of Dr. Bhale Patil and the P.M. Report Exh. 22 confirm that
the
deceased
died
due
to
strangulation.
The
aforesaid
circumstances particularly the absence of gap in ligature mark and
same having been found below larynx falsified the plea taken by the
appellant that the deceased had died due to hanging and ruled out
the probability that the death of deceased was suicidal in nature.
The converse is that the ligature marks were homicidal. Therefore, it
becomes obvious that it is the accused who is the author of the said
death.
8
From the evidence of PW-4 Vanita who was the landlady of
the appellant and the deceased, it is seen that the appellant and the
deceased were the only adults residing in the said room and when
ig
PW-3 Sanjay was called, one of them was alive and other was dead.
In such case, the appellant had to explain the injuries on the
deceased and how he met his death. Onus lies on the appellant to
explain the circumstances as to how the deceased died as it is within
the exclusive knowledge of the appellant. In this view of the matter,
Section 106 of the Evidence Act would come into play.
connection,
In this
we may refer to Section 106 of the Evidence Act.
Section 106 of the Evidence Act provides that when any fact is
especially within the knowledge of any person, the burden of proving
that fact is upon him.
In several recent decisions, the Supreme
Court has held that the principle which underlies Section 106 of the
Evidence Act, can be applied in cases where certain facts are
especially within the knowledge of a person. In the case of State
of Rajasthan Vs. Kashi Ram1, the Supreme Court has observed
1 (2006)12 SCC 254 : AIR 2007 SC 144
that if the accused fails to offer an explanation on the basis of facts
within his special knowledge, he fails to discharge the burden cast
upon him by Section 106 of the Evidence Act. In a case resting on
circumstantial evidence if the accused fails to offer a reasonable
explanation in discharge of the burden placed on him, that itself
provides an additional link in the chain of circumstances proved
Section 106 does not shift the burden of proof in a
against him.
criminal trial, which is always upon the prosecution. It lays down the
rule that when the accused does not throw any light upon facts
which are specially within his knowledge and which could not
support any theory or hypothesis compatible with his innocence, the
Court can consider his failure to adduce any explanation as an
additional link which completes the chain.
Ms. Gonsalvez, the learned advocate for the appellant
submitted that there is no evidence to show that the appellant was
in the house on the night of the incident. As far as this aspect is
concerned, the evidence of PW-2 Ranjana shows that on 30.12.2009
the appellant had come to the Bar at about 1.00 p.m., the appellant
then consumed liquor in the Bar, the appellant left the Bar at about
9.30 p.m. to go to her house. Obviously at 9.30 p.m. at night the
appellant would return to her house and would not be roaming on
the streets
or
go
elsewhere.
The
evidence of PW-2 Ranjana
shows that the appellant went to her house. Moreover, it would be
the natural conduct on the part of the appellant to go to her house
Moreover, at 9.30 p.m. it was
after working hours are over.
expected that the appellant would go to her own house and not go
elsewhere. The evidence of PW-3 Sanjay who is the brother of the
deceased and brother-in-law of the appellant, shows that in the
morning of 31.12.2009, he received a message from the appellant
that his brother Santosh had hanged himself and she had brought
This clearly shows that in the morning on
down his body.
31.12.2009, the appellant was certainly in the house. It is not the
case of the appellant that she came home in the morning and saw
her husband hanging. Moreover, the appellant has given a totally
false story to Sanjay that his brother had hanged himself.
The
medical evidence shows that it was not a case of hanging but it was
a case of strangulation. Various injuries were seen on the body of
Santosh which belie her case of suicide. These injuries show that it
was a case of murder and not of suicide.
This false explanation
given by the appellant furnishes one more link in the chain of
circumstances which proves the guilt of the appellant.
From the
medical evidence, it is clear that the deceased died in unnatural
circumstances in his room. The house in which the appellant and
the deceased resided, was a single small room.
Therefore, the
burden of proof lay upon the appellant to show under what
circumstances death was caused to her husband. The onus was on
her but she failed to discharge the same. In addition, she has given
All these
false explanation in relation to death of her husband.
circumstances form a chain which excludes any possibility of some
other person committing the crime.
The circumstances clearly
indicate that it is the appellant alone who is responsible for the
On going through the record, we find that there is
commission of the crime.
sufficient evidence to prove that the appellant committed the
murder of her husband. Thus, we find no merit in the appeal. The
appeal is, therefore, dismissed.
[SMT.V.K.TAHILRAMANI, J.]
[ V.L. ACHLIYA, J. ]
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