In this
connection, 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 principles which underlies
Section 106 of the Evidence Act can be applied in such cases. In
the case of State of Rajasthan Vs. Kashi Ram (2006)12 SCC 254 : AIR 2007 SC 144 the Supreme
Court has observed 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 against him. Section 106 does not
shift the burden of proof in a 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 215 OF 2010
Sanjay Ramesh Ghodake Vs state of Maharashtra
CORAM
: SMT. V.K. TAHILRAMANI &
SHRI. P.N. DESHMUKH, JJ
Dated: FEBRUARY 12, 2014.
Citation; 2014 ALLMR(cri) 2843
This appeal is preferred by the appellant - original accused
against the judgment and order dated 29.01.2008 passed by the
1st Ad-hoc Additional Sessions Judge, Palghar in Sessions Case No.
140
of 2006.
By the said judgment and order, the learned
Sentenced to
Convicted
u/S.
Session Judge convicted and sentenced the appellant as under:-
Imprisonment for life and fine of Rs. 1,000/-
I.D.R.I. for 1 Month
201, IPC R.I. for 3 Years & fine of Rs. 1,000/-
I.D.RI. for 1 Month
452, IPC R.I. for 3 Years & fine of Rs. 1,000/-
I.D.R.I. for 1 Month
506, IPC R.I. for 3 Months.
302, IPC
The learned Sessions Judge directed that all the substantive
sentences of imprisonment shall run concurrently.
2.
The prosecution case briefly stated, is as under:
Deceased Narmada was the wife of PW 2 Bachu and
(a)
the mother of PW 1 Vijay. Narmada was residing along with her
husband and son at Savarepada in Thane. The appellant used to
reside adjacent to the house of Narmada and her family.
The
appellant used to assault his wife, hence, his wife used to take
shelter in the house of the villagers.
The appellant was
suspecting that Narmada was instigating his wife. Due to this,the
appellant had pelted stones on the house of Narmada.
The incident occurred in the night between 03.07.2006
The appellant entered into the
and 04.07.2006 at 2.35 a.m.
(b)
house of Narmada armed with a wooden plank. He inflicted blows
with wooden plank on the head of Narmada and caused injury to
her. When PW 2 Bachu intervened, the appellant threatened to
After
kill him and Vijay, hence, Vijay and Bachu ran away.
sometime, they returned back to the house, however, they saw
that Narmada was not in the house. They searched for Narmada
but were unable to find her. Vijay and Bachu then went to the
police station and came back to the house along with police. Then
they went into the house of the appellant with police.
On
entering the house, they saw dead body of Narmada in the house
At that time, the appellant was in the house.
of the appellant.
The police took the appellant into the custody. PW 1 Vijay lodged
FIR. Thereafter, investigation commenced.
(c)
The dead body of Narmada was sent for postmortem.
In the opinion of the Doctor, the probable cause of death was due
to fracture of skull with injury to brain.
After completion of
3.
case was committed to the Court of Sessions.
investigation, charge sheet came to be filed. In due course, the
Charge came to be framed against the appellant under
Sections 452, 506, 302, and 201 of IPC. He pleaded not guilty to
the said charge and claimed to be tried. His defence was that of
After going through the
total denial and false implication.
learned
Sessions Judge
evidence adduced in this case, the
convicted the appellant as stated in paragraph 1 above, hence,
this appeal.
4.
We have heard the learned Advocate for the appellant and
After giving our anxious
the learned APP for the State.
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, for the reasons stated below, we are of the
opinion that the appellant assaulted Narmada with a wooden
plank and caused her death.
The conviction of the appellant is mainly based on the
and PW 2
evidence of PW 1 Vijay - son of deceased Narmada
5.
Bachu - husband of deceased Narmada. PW 2 Bachu has stated
that the appellant resided adjacent to their house. On the night
between 3 and 4th July 2006, the appellant entered into his house
The appellant inflicted blows
holding a wooden plank in hand.
When they intervened, the appellant threatened to kill
injuries.
with wooden plank on the head of Narmada and caused bleeding
them, hence, Bachu and Vijay ran away from the house. When
they came back to the house, they saw that Narmada was not
inside the house, hence, he and Vijay went to police station. They
came back with the police. They then went to the house of the
appellant. The dead body of Narmada was seen lying in the house
of the appellant.
The appellant was present in his house.
The
evidence of PW 1 Vijay who is the son of Narmada is on similar
lines as that of PW 2 Bachu.
The evidence of these witnesses
establishes that at about 02.00 a.m., the appellant came into the
house of Narmada and inflicted blows with wooden plank on the
head of Narmada. During the said incident, he also threatened
6.
the witnesses that he would kill them.
The evidence of PW 1 Vijay and PW 2 Bachu shows that the
appellant assaulted Narmada with a wooden plank. The evidence
of these two witnesses is corroborated by the medical evidence.
PW 5 Dr. Kelkar performed the postmortem on the dead body of
i.
Narmada. He found following external injuries on her person:-
C.L.W. over forehead left side, frontal bone, adm 2"
ii.
x 1" bone deep. On palpation, he noticed crack;
C.L.W. over vertex adm. 4" x 1", bone deep with
crack in bone;
iii.
C.L.W. over occipital region, 2" x 1", bone deep,
fracture to skull;
Contusion over left eye, black eye;
vi. C.L.W. nasal root 1" x 1/2", fracture nasal bone;
v. iv. C.L.W. upper limb, 2" x 1", bone deep, fracture
maxilla;
vii.
abrasion over left shoulder, 2 cm x 2 cm;
viii. Abrasion over both knees, 4 x 2 cm superficial.
According to Dr. Ketkar, all the above injuries were ante-
mortem and on internal examination, he noticed fractured skull.
He also noticed brain laceration with extra dural hematoma with
hemorrhage.
In his opinion, probable cause of death was due to
fractured skull with injury to brain and the injuries noticed by him
7.
are possible by wooden plank.
The prosecution has also proved the motive for the
appellant to commit the crime. The motive is brought out through
PW 1 Vijay has stated that the
the evidence of PW 1 Vijay.
appellant was residing adjacent to his house. The appellant used
to assault his wife, hence, his wife used to take shelter in the
house of the villagers.
The appellant was suspecting that
The shows the motive for the
Narmada was instigating his wife.
appellant to commit the offence.
No doubt, PW 1 Vijay and PW 2 Bachu have not seen the
8.
appellant assaulting Narmada till she expired, however, their
evidence shows that the appellant inflicted 2-3 blows with a plank
on the head of Narmada. When last seen, the appellant and the
deceased were the only two persons in the house, thereafter
Narmada was found dead in the house of the appellant.
In this
connection, we may refer to Section 106 of the Evidence Act.
Section 106 of the Evidence Act provides that when any fact
9.
proving that fact is upon him.
is especially within the knowledge of any person, the burden of
In several recent decisions, the
Supreme Court has held that the principles which underlies
Section 106 of the Evidence Act can be applied in such cases. In
the case of State of Rajasthan Vs. Kashi Ram 1, the Supreme
Court has observed 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 against him. Section 106 does not
shift the burden of proof in a 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
1 (2006)12 SCC 254 : AIR 2007 SC 144
10.
the chain.
It is further the prosecution case that when PW 2 Bachu and
PW 1 Vijay came back to their house, they did not find Narmada in
the house.
They searched for her but she could not be found,
hence, they went to the police station and returned back with the
police. PW 2 Bachu, PW 1 Vijay and the police then went into the
house of the appellant. They found the dead body of Narmada in
the house of the appellant and the appellant was present in the
house. The appellant was taken into custody. The blood stained
clothes on his person came to be seized under panchnama Exh.
14. These blood stained clothes were sent to C.A. The C.A. report
shows that the blood of the deceased was of "B" group and the
blood of "B" group was found on the shirt of the appellant. It is
pertinent to note that blood of the appellant is of "A" group.
11.
Ms. Dandekar, learned Advocate for the appellant submitted
that the panch witness to the arrest panchnama under which
blood stained clothes on the person of the appellant came to be
seized has turned hostile and he has not supported the
prosecution. She submitted that in such case, the circumstance of
finding of blood stained clothes on the person of the appellant and
seizure of the said clothes and the C.A. report cannot be taken
into consideration.
In this connection, useful reference may be made to a
decision of the Supreme Court in the case of State of Kerala Vs
M.M. Mathew2 wherein it has observed that prima facie public
servants must be presumed to act honestly and conscientiously
and their evidence has to be assessed on his intrinsic worth and
cannot be discarded merely on the ground that being public
servants, they are interested in the success of their case.
12.
In the case of Modan Singh Vs. State of Rajasthan 3, the
Supreme Court has observed that where the evidence of the
investigating officer who recovered the material objects is
convincing, the evidence as to recovery need not be rejected on
the ground that seizure witnesses did not support the prosecution
2 (1978) 4 SCC 65 : 1978 SCC (Cri) 503
3 (1978) 4 SCC 435 : 1979 SCC (Cri) 56
Similar view was expressed by the Supreme Court in the
version.
13.
case of Mohd. Aslam Vs. State of Maharashtra 4.
In relation to panch witness turned hostile, the Supreme
Court in the case of Anter Singh Vs. State of Rajasthan 5 has
observed that even if panch witness turned hostile, which
happens very often in criminal cases, the evidence of the person
would not stand vitiated.
The
who effected the recovery
Supreme Court in the case of Rameshbhai Mohanbhai Koli &
Ors Vs State of Gujarat 6 observed that merely because panch
witnesses turned hostile, is no ground to reject evidence, if the
same is based on testimony of investigating officer alone.
14.
In the present case, the I.O. PW 6 PSI Kudale has clearly
stated that he arrested the
appellant in this crime vide
panchanama Exh. 14 and seized his clothes. The seized property
was then sent to C.A.
Nothing has been elicited in cross-
examination of this witness so as to discredit his testimony or to
4 (2001) 9 SCC 362 : 2002 SCC (Cri) 1024
5 (2004) 10 SCC 657 : 2005 SCC (Cri) 597
6 (2011) 11 Supreme Court Cases 111
cause any suspicion about his testimony, hence, we have no
15.
hesitation in relying on his testimony.
Ms. Dandekar submitted that the evidence of PW 1 Vijay and
PW 2 Bachu that they witnessed the appellant assaulting Narmada
on the head with wooden plank cannot be believed because there
ig
was no electricity in the house which has been categorically
admitted by PW 1 Vijay and PW 2 Bachu. She submitted that in
such case the eye-witnesses could not have identified the
Even assuming that there was no electricity in the
assailant.
house, it is noted that the appellant was the neighbour of Vijay
and Bachu.
His house was just adjacent to that of Vijay and
Bachu, hence, at 02.00 a.m. when they saw the appellant
assaulting Narmada, their eyes would be used to the dark and
there would be no difficulty for them to identify the appellant who
was their neighbour. Thus, we find no merit in this submission.
16.
On going through the record, we find that there is sufficient
evidence to prove that
the appellant has committed house
trespass by entering the house of Narmada in order to assault her,
Bachu that he would kill them.
assaulted her and during the assault, he threatened Vijay and
There is also evidence to show
that the appellant moved the dead body from the
house of
Narmada to his own house in order to cause disappearance of
17.
appeal. The appeal is dismissed.
evidence of the offence. Thus, we do not find any merit in this
At this stage, we must record our appreciation for Advocate
who is on the panel of Advocates of
Ms. Rohini M. Dandekar
High Court Legal Services Committee and who was appointed by
us to represent the appellant in this appeal. We found that she
had meticulously prepared the matter and she has very ably
argued the appeal. We quantify total legal fees to be paid to her
in this appeal
by the High Court Legal Services Committee at `
3000/-.
[SHRI. P.N. DESHMUKH, J ]
[SMT. V.K. TAHILRAMANI, J ]
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