Maharashtra, 1997 (3) Mh.L.J. 452, the Hon’ble Supreme Court
while dealing with the aspect of competency and credibility of
child witness under Section 115 of the Indian Evidence Act,
1872, in paragraph no.5 of the Judgment, held as under :
“A child witness if found competent to depose to the facts
and reliable one such evidence could be the basis of
conviction. In other words even in the absence of oath
the evidence of a child witness can be considered under
Section 118 of the Evidence Act provided that such
witness is able to understand the questions and able to
give rational answers thereof. The evidence of a child
witness and credibility thereof would depend upon the
circumstances of each case. The only precaution which
the court should bear in mind while assessing the
evidence of a child witness is that the witness must be a
reliable one and his/her demeanour must be like any
other competent witness and there is no likelihood of
being tutored.”
25. It can be gathered very well that, the evidence of
master Krishna Akhade (PW-4) in the light of the aforesaid
principles laid down by the Hon’ble Supreme Court, referred
above, is reliable one and there is no likelihood of him being
tutored. When tests of reliability and free from tutoring are
satisfied, merely for the reason that oath was not administered
to master Krishna Akhade (PW-4), his evidence cannot be kept
out of consideration under Section 118 of the Indian Evidence
Act, 1872. From any angle, the arguments advanced by Mr P.S.
Paranjape, learned counsel for the appellant-accused that,
master Krishna Aakhade was not only incompetent, but also
tutored child witness, cannot be accepted, since nothing is
brought on record to substantiate the same either from his
cross-examination or from any prima facie cogent evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 581 OF 2014
Bhatu Himmat Akhade Vs The State of Maharashtra,
CORAM : SUNIL P. DESHMUKH
AND B. U. DEBADWAR, JJ.
Decided on : 21-08-2020
JUDGMENT [ Per : B. U. Debadwar, J. ] :-
1. This appeal under Section 374 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”)
has been preferred against the Judgment & Order dated
15.07.2014, passed by learned Additional Sessions Judge, Dhule,
in Sessions Case No. 93 of 2013, whereunder appellant is
convicted of offences punishable under Sections 302 and 309 of
the Indian Penal Code, 1860 (hereinafter referred to as “IPC”)
and has been sentenced respectively, to suffer life imprisonment
and to pay fine of Rs. 5000/-, in default of payment of fine,
to suffer further simple imprisonment for six months for the
offence under Section 302 of the IPC and to suffer simple
imprisonment for one year and to pay fine of Rs. 1,000/-, and in
default of payment of fine, further simple imprisonment for two
months for the offence under Section 309 of the IPC.
2. Facts of the case unfolded before trial Court may be
summarized as follows: -
Deceased – Sangita was the wife of appellantaccused
and younger sister of Mangesh Ratan Sonawane-first
informant, resident of Subhash Nagar, Old Dhule. Marriage of
Sangita with appellant was solemnized about five years prior to
the incident. Deceased Sangita, from the wedlock with appellant,
gave birth to two children namely; Krushna and Divya. Appellant
was the Auto-rickshaw driver. He used to ply his own Autorickshaw
as a source of livelihood. He was addicted to vices viz.
drinking and gambling. From the beginning, he used to ill-treat
his wife Sangita raising doubt about her fidelity. Though
deceased-Sangita made complaint to her parents and brother
about harassment and ill-treatment being meted out by the
appellant raising doubt about her character, they did not take
criminal action against the appellant, however, time and again,
gave him understanding but no change took place in attitude and
conduct of the appellant. On fateful day i.e. 09.02.2013, the
appellant while present in the house along with wife Sangita and
both the children, at about 06:15 a.m. after picking up quarrel
committed assault on person of Sangita by giving blows of pestle
(eqlG) and Blade on her neck and other vital organs of the body
with an intention to finish her. The injuries caused by the
appellant were so serious that Sangita succumbed to those
injuries instantly. After causing the death of wife Sangita,
appellant attempted to commit suicide by inflicting injuries on his
neck and both the hands by sharp edged object. One Shobhabai,
resident of Subhash Nagar, Old Dhule, where appellant was
residing with his family, informed about the aforesaid incident to
Sonali, younger sister of the deceased Sangita, on her cell
phone. Sonali, in turn, informed the same to her elder brother
Mangesh Ratan Sonawane. Upon getting the information,
Mangesh Ratan Sonawane, brother of deceased – Sangita along
with one Bharat (brother-in-law of appellant) rushed to the
house of the appellant situated at Subhash Nagar, on motorcycle
and verified the situation i.e. Sangita’s lying on the mattress in
her house in pool of blood with multiple grievous injuries on her
person. After getting the details about the incident from the
inhabitants of the locality who had gathered near the house of
the appellant including Shobhabai, he realized that, after
committing assault on wife Sangita, appellant moved out of the
house in injured state and in naked condition, therefore, shifted
to Civil Hospital, Dhule. He then visited the Civil Hospital, Dhule,
saw the appellant being treated there and thereafter lodged the
FIR at about 8:15 hrs. on very same day.
3. On the basis of FIR lodged by Mangesh Ratan
Sonawane (first informant), Crime bearing no. 33/2013 came to
be registered at Rural Police Station, Dhule, against the appellant
for the offence under Sections 302 and 309 of the IPC. During
the course of investigation, spot panchanama was drawn, articles
lying on the spot were seized, dead body of Sangita was sent to
the Civil Hospital at Dhule for autopsy, after preparing inquest
panchanama, statements of material witnesses including Dr. Ajit
Patil (PW1), who conducted post-mortem on the dead body of
deceased Sangita, Krushna Akhade (PW4) a minor son of the
appellant and deceased Sangita, Mahesh Abhimanyu Pagare
(PW3) who opened the grille door of the house of the appellant
using tommy and then carried the appellant to the various
hospitals in his Taxi Jeep, then sent muddemal articles seized
from the spot to the Forensic Lab for examination & report,
arrested the appellant drawing memo, collected post-mortem
report and injury certificate of appellant and CA report from the
Medical and Forensic Authorities, respectively and after
completion of investigation, charge-sheeted the appellant before
the Judicial Magistrate First Class, Dhule for the offences
punishable under Sections 302 and 309 of the IPC.
4. Learned Judicial Magistrate First Class, Dhule,
committed the case to the Court of Sessions, Dhule, as the
offence under Section 302 of the IPC is exclusively triable by the
Court of Sessions. In turn, Sessions Judge, Dhule made it over
after registering it as Sessions Case No. 93 of 2013 to the
Additional Sessions Judge, Dhule, who after hearing Additional
Public Prosecutor and Defence counsel, framed charge for the
aforesaid offences against the appellant–accused on 20.07.2013
vide Exh. 4, read over the same in vernacular to the appellantaccused,
to which he pleaded not guilty and claimed to be tried.
As such, conducted the trial and at it’s conclusion, held the
appellant guilty as stated above.
5. While taking us through evidence on record, Shri. P.
S. Paranjape, learned counsel for the appellant vehemently
argued that, the impugned judgment and order, suffers from
many factual and legal aspects. Learned Addl. Sessions Judge,
Dhule failed to appreciate the evidence on record in proper
perspective and arrived at wrong conclusion. Learned Addl.
Sessions Judge failed to appreciate that the prosecution has not
examined material witness Shobhabai from whom Mangesh
Ratan Sonawane (PW2) received the information about alleged
incident. Non-examination of Shobhabai, though she was
available, is serious lapse on the part of the prosecution.
Besides, the learned Sessions Judge failed to appreciate that,
Krushna Akhade (PW4), a child witness was fully tutored by
Mangesh Ratan Sonawane, first informant and his maternal
uncle. Ld. Additional Sessions Judge, Dhule wrongly put Master
Krushna Akhade (PW4) into the category of eye-witnesses and
blindly believed his version. Evidence of Dr. Ajit Patil (PW1) has
been wrongly believed by learned Addl. Sessions Judge, though
it was too vague to prove as to which injury was probably caused
by which object alleged to be seized from the spot. Though the
prosecution has failed to prove the contents of Injury Certificate
of appellant (Exh.23), Addl. Sessions Judge, relied on the same
and wrongly held that appellant got inflicted the same in attempt
to commit suicide.
6. According to Mr. P. S. Paranjape, learned counsel for
the appellant, alleged act of the appellant moving inside and
outside the house after allegedly committing the crime in naked
condition is not normal act. No sane person would move after
committing such a serious crime in naked condition in a locality
where his house situates. Such abnormal conduct of the
appellant establishes that, at the relevant time, the appellant
was of unsound mind and u/s 84 of the IPC, nothing is an
offence which is done by a person who, at the time of doing it,
by reason of unsoundness of mind, is incapable of knowing the
nature of the act, or that he is doing what is either wrong or
contrary to law. It was the duty of the Investigating Officer,
having regard to the abnormal behavior of the appellant, to refer
him to the Psychiatrist for examination. No such attempt was
made by the Investigating Officer. Ld. Addl. Sessions Judge has
also not considered this material aspect and as such, has
wrongly held the accused guilty.
7. It is the contention of Mr. P. S. Paranjape, learned
counsel for the appellant that, severe injuries on vital part i.e.
neck suffered by the appellant clearly indicate that, during the
alleged quarrel, deceased-Sangita and accused inflicted injuries
to each other. Having regard to the same, it was necessary on
the part of the Investigating Officer to investigate as to who
initiated the quarrel and as to who was the aggressor but he
failed to investigate into this material aspect. According to
Mr. P. S. Paranjape, in view of the case of prosecution and
evidence on record, possibility of committing assault on Sangita
and appellant both by third person cannot be ruled out. There is
no explanation about the serious injuries suffered by the
appellant from the side of prosecution. Impugned judgment and
order as far as offence of attempt to commit suicide, is based on
assumption and surmises. Ld. Addl. Sessions Judge also failed
to appreciate aforesaid two material aspects like other aspects
discussed above and held the accused guilty for offences of
murder and attempt to commit suicide, though there was no
clear, cogent and convincing evidence. Thus, appellant deserves
to be acquitted by allowing appeal and setting aside impugned
judgment and order. In support of his contention, Mr. P. S.
Paranjape, learned counsel representing the appellant placed his
reliance on two judgments rendered by Hon’ble Supreme Court.
One is Lakshmi Singh and Ors. Vs. State of Bihar (Criminal
Appeal Nos. 284 and 285 of 1971), decided on 10.09.1976 and
another is Majid and Ors. Vs. State of Maharashtra and Ors.
(Criminal Appeal No. 132 of 2008) arising out of S.L.P. (Cri.) No.
2809 of 2007, dated 21.01.2008.
8. Per contra, Mr. P. S. Patil, learned Addl. Public
Prosecutor vehemently argued that, incident took place within
the four walls early in the morning. At the time of incident,
except appellant, deceased-Sangita and their two tender aged
children, nobody was present. People residing in neighbouring
houses including Mahesh Abhimanyu Pagare (PW3) rushed to the
house of the appellant and deceased Sangita, on hearing the
cries of their children. At that time the house was locked from
inside. Appellant has not disputed the genuineness of most of
the documents relied upon by the prosecution including spot
panchanama, inquest panchanama, clothes seizure panchanama
under which clothes on the person of the deceased Sangita after
autopsy were seized, post-mortem report, injury certificate etc.
Spot panchanama (Exh.17) throws light as to how appellant
brutally killed his wife Sangita. Evidence on record establishes
that, at the time of incident, the house where the incident took
place was locked from inside. Mahesh Abhimanyu Pagare (PW3)
clearly deposed that, he along with one Sonu opened the grille
door of the house by means of Tommy, as appellant did not
remove the lock and open the door, despite being requested.
When incident took place, house was locked from inside and
except appellant, deceased Sangita and their very tender aged
two children, nobody was present in the house, burden lies on
the appellant to explain as to how wife Sangita succumbed to the
multiple injuries and also as to how he suffered injuries on his
neck and wrist of both the hands. He has not given any
explanation on both the aspects. Circumstances came on record
through spot panchanama and conduct of the accused after
incident prove that, initially after picking up quarrel, with the
help of pestle (eqlG), sword and blade, appellant caused multiple
grievous injuries on the vital parts of deceased-Sangita including
neck and thereafter he attempted to commit suicide by getting
inflicted injuries on his neck and both the hands by same blade
which was used for inflicting injuries to deceased-Sangita. Spot
panchanama also demonstrates that, in attempt to commit
suicide, appellant also tried to get ablazed by moving to latrine
after removing the clothes and burning the same. Circumstantial
evidence on record is cogent and satisfactory to explain the
injuries suffered by appellant. Therefore, submissions pertaining
to non-explanation of injuries suffered by the appellant bear no
force.
9. As far as non-examination of Shobhabai, Mr. P. S.
Patil, learned APP submitted that, Shobhabai was the person like
other neighbourers rushed to the house of the accused after
hearing cries of the children. Whatever she saw inside the house
from outside, informed the same to Sonali, younger sister of the
deceased -Sangita. She was not the actual eye-witness of the
incident. Looking to her role referred to above, her examination
as a witness was not necessary. As such, no adverse inference
as argued by learned counsel representing the appellant can be
drawn.
10. According to Mr P. S. Patil, learned APP, merely on
the basis of abnormal conduct of the appellant after commission
of crime i.e. moving in naked condition, inference of his
unsoundness of mind cannot be drawn. Burden was on the
appellant to prove that the case is covered by exception. He has
not adduced any prima facie evidence to prove his unsoundness
of mind, therefore, arguments made by learned counsel
representing the appellant based on Section 84 of the IPC,
cannot be considered.
11. Mr. P. S. Patil, learned APP further submitted that,
Krushna Akhade (PW4), son of appellant and deceased Sangita
was present in the house when the incident took place. He was
4 year old tender aged child. His evidence reveals that, he saw
the incident not fully but, partially. However, his evidence lends
full support to the case of prosecution that it was the appellant
who committed assault on deceased-Sangita after picking up
quarrel with her. According to Mr. P. S. Patil, learned APP, even if
the case is treated to be based on only circumstantial evidence,
the circumstances proved by the prosecution are quite cogent
and sufficient to prove the guilt of the accused. As far as charge
under Section 302 of the IPC is concerned, the case is squarely
covered under clauses 2 and 3 of Section 300 of the IPC. So
also, circumstantial evidence proves beyond doubt that, injuries
suffered by the appellant were self-inflicted injuries. Those were
inflicted after committing murder of wife Sangita while
attempting to commit suicide. Therefore, impugned judgment
and order is correct, proper and legal on all aspects, as such, no
interference therein is called for. In support of his submissions,
Mr. P. S. Patil, learned APP, placed reliance on four judgments,
out of which three were rendered by the Hon’ble Supreme Court
and remaining one is rendered by this Court, viz.,
1] Brajendrasingh Versus State of M.P.
2012 AIR (SC) 1552
2] Rafiq Ahmed @ Rafi Versus State of U.P.
2011 AIR (SC) 3114
3] Dattu Ramrao Sakhare Versus State of Maharashtra
1997 (5) SCC 341
4] Rajendra Pandurang Sonwane Versus State of Maharashtra
2012 (3) Bom. C.R. (Cri.) 393
12. The intense scrutiny of the evidence adduced by the
prosecution reveals that, the case of the prosecution is mainly
resting on the circumstantial evidence. Though Krushna Akhade
(PW4), a tender aged child, was present in the house when the
incident took place, he had not seen the incident in its entirety
and his evidence is restricted to appellant’s giving blows of pestle
(eqlG) to the deceased-Sangita after picking up quarrel with her,
therefore, he cannot be treated as eye-witness of the entire
incident.
13. The prosecution primarily kept implicit reliance on
the following incriminating circumstances to bring home the guilt
of the accused.
[i] Appellant was suspecting infidelity by deceased
Sangita and mal-treating and ill-treating her
constantly on that count.
[ii] Though the family of appellant was consisting of
wife Sangita, their two tender aged children, his
parents and brother, however, on the fateful day,
except appellant, deceased-Sangita and their two
tender aged children, nobody was present in the
house.
[iii] Much prior to the incident, parents of appellant had
left the house for visiting Char Dham Yatra (Four
Pilgrimage Sites in India), whereas, on earlier day
of incident, brother of the appellant by name Nitin
had left the house and gone to Shegaon.
[iv] The house of the appellant where the incident took
place was consisting of three rooms situated one
after one. Main entrance of that house was facing
to north. Articles lying in the house viz. quilt,
mattress, bed-sheets, sword, blades and wooden
log/logs were stained with blood. Besides, blood
was spread in large quantity in all the three rooms
and also in latrine.
[v] Ash of the burnt clothes found in latrine.
[vi] Main door of the house was made of iron grille and
it was locked from inside.
[vii] On breaking open the grille door with the help of
‘tommy’, a weapon of bending and cutting steel,
appellant came out of the house in naked condition
in injured state.
[viii] Hair on the head of the appellant were burnt.
[ix] It was Mahesh Abhimanyu Pagare (PW3), who
shifted appellant initially to the private hospital and
then finally to the Civil Hospital at Dhule, in his
Taxi-Jeep.
[x] Appellant-accused neither disputed injuries
suffered by the deceased-Sangita nor injuries
suffered by him.
[xi] Appellant has not given plausible explanation
about the injuries suffered by deceased-Sangita
and injuries suffered by him.
14. In the instant case, the issue of homicidal death of
deceased Sangita was not seriously disputed by the appellant.
Dr. Ajit Patil (PW1) has conducted autopsy on the dead body of
the deceased-Sangita. Post-mortem report (Exh.18) not disputed
by appellant and proved in his evidence establishes following
surface wounds and injuries and also corresponding internal
injuries.
Surface wounds/injuries:-
1. Chop wound over neck anteriorly at the level of thyroid
cartilage 7.5 cm in length & 3 cm maximum breadth,
cavity deep, oval in shape, margins clean-cut with
underlying structures (trachea, muscle & vessels) cut
through & through.
2. Incised wound 0.5 cm below lower margin of injury no.
1) 1.5 cm x 0.5 cm x cavity deep, margins clean-cut.
3. Multiple incised wounds over Ltd. Wrist flexor aspect
over area of 4 x 2.5 cm, underlying tissues & vessels
cut & bones exposed.
4. CLW over (Rt.) eyebrow 2 cm x 0.5 cm x bone deep,
swelling present over surrounding area of (Rt) side of
forehead.
5. (Lt.) ear lobule cut through & through in middle portion
approx. 1.5 cm in length.
6. (Lt.) ear pinna cut through & through in middle portion
approx. 2 cm in legnth.
7. Swelling over (Lt.) mandibular region 5 x 3 cm.
8. Incised wound over (Lt.) forearm middle 1/3rd 1 cm. X
0.5 cm x muscle deep.
9. Contusion over (Lt.) should posteriorly 6 x 4 cm.
Internal injuries:-
1. Haematoma & frontal (Lt.) parietal regions of scalp.
2. Depressed frontal bone (Rt.) side.
3. Brain-pale. Cerebral oedema.
15. After conducting Post-mortem, Dr. Ajit Patil (PW1)
opined that, death of deceased Sangita was caused due to shock
and hemorrhage following cut in throat injury with multiple
incised wounds over the wrist. In addition to that, Dr. Ajit Patil
(PW1) clearly deposed that, injury no. 4 i.e. CLW over (Rt.)
eyebrow 2 cm x 0.5 cm x bone deep, swelling present over
surrounding area of (Rt.) side of forehead mentioned in clause
17 of post-mortem report (Exh.18), could be possible by means
of pestle (eqlG) (article 15) and injury no. 3 mentioned in
clause 17 viz. multiple incised wounds over (Lt.) wrist flexor
aspect over area of 4 x 2.5 cm, underlying tissues &
vessels cut & bones exposed, could be possible by blade (article
10). It is pertinent to note that, appellant did not
cross-examine Dr. Ajit Patil (PW1) though opportunity
of cross-examination was given to him. From the
deposition of Dr. Ajit Patil, it is clear that, appellant through his
advocate had declined to cross-examine him. When appellant did
not dispute genuineness of the post-mortem report (Exh.18), in
reply to the notice under Section 294 of the Cr.P.C. and by way
of declining to cross-examine Dr. Ajit Patil (PW1), who conducted
post-mortem and issued post-mortem report (Exh.18), merely
on the basis of bracketed remark made by ld. Addl. Sessions
Judge in para no. 1 of deposition of Dr. Ajit Patil (PW1) that
“admitted in the evidence on behalf of the defence, by which the
defence cannot raise any objection about the contents of P.M.
Notes vide Exh.18”, inference cannot be drawn that learned Addl.
Sessions Judge prevented the appellant-accused from crossexamining
Dr. Ajit Patil (PW1). Had the remark of declining
to conduct the cross-examination by appellant through advocate
not appeared in the deposition of Dr.Ajit Patil (PW1), such
inference could have been possible. Said remark makes it clear
that, opportunity to cross-examine Dr. Ajit Patil, who conducted
the post-mortem on the dead body of Sangita and issued postmortem
report (Exh.18) was given to the appellant, however, he
willingly declined to cross-examine him. Therefore, the
submissions made by Mr. P.S. Paranjape, learned counsel
representing the appellant, merely based on aforesaid remark
bear no force and substance and on the basis of said
submissions, surface wounds and injuries and internal injuries
suffered by deceased-Sangita cannot be said to be unproved.
Injuries found on the body of deceased Sangita mentioned in
post-mortem report (Exh.18) also get support from Inquest
Panchanama (Exh.14) and ocular evidence of Mahesh Abhimanyu
Pagare (PW3), which are not disputed by the appellant. Thus,
aforesaid injuries are clear, cogent and sufficient to establish that
death of Sangita is homicidal.
16. Once it is proved that, death of Sangita is homicidal,
then question arises as to the nexus and proximity of the
appellant-accused with death of Sangita. We have already
referred to in foregoing paragraphs that, the case of the
prosecution is based on circumstantial evidence. To prove the
circumstances connecting the appellant with the homicidal death
of Sangita, prosecution has examined as many as six material
witnesses and has placed reliance on Spot Panchanama
(Exh.17), Cloth Seizure Panchanama (Exh.16) and Injury
Certificate of appellant (Exh. 23).
17. Mangesh Ratan Sonawane (PW2, brother of
deceased-Sangita and first informant), is an important witness.
Material portion of his testimony, which is corroborated by FIR
(Exh.26), runs as under:
. “Deceased-Sangita was residing at her matrimonial
house situated at Bhagwan Society, Dhule, along with
husband (appellant-accused), two children namely, Krushna,
aged four years and Divya, aged two years, parents-in-law
and brother-in-law. Appellant-accused was in habit of
drinking and gambling. He used to pick up quarrel with
deceased-Sangita and beat her after raising doubt about her
character. On 09.02.2013, at about 06:00 a.m., his younger
sister Sonali received phone call of Shobhabai informing
about killing Sangita by the accused after picking up quarrel
and accused’s wandering in courtyard in naked condition by
holding sword with him. In pursuance of the said phone call,
he along with Bharat (brother-in-law of the accused) rushed
to the house of the accused situated at Bhagwan Society,
Old Dhule. After reaching there, he found door of the house
was opened and his sister-deceased Sangita was lying on the
mattress. Besides, he found injuries on her neck so also he
saw wooden rod (eqlG) and sword lying there. He also saw
pieces of bangles including Mani Mangalsutra scattered
there. He noticed blood on the neck of sister Sangita. He
found Sangita in dead condition. On enquiry, Shobhabai,
who was present outside the house, told him that, quarrel of
his sister Sangita and accused was going on since dawn
(early morning) and during the said quarrel, his sister died.
Besides, Shobhabai told him that, accused was wandering
outside the house in naked condition. Accused was taken to
the hospital. Prior to that, he was found in a vehicle hiding
himself. He had seen the accused visiting the hospital in
injured state. He noticed injuries on his neck, ear and wrist
of both the hands. Besides, he found hairs on the head of
the accused burnt to some extent. Thereafter, he went to
Police Station and lodged the report (Exh.26) about the
incident.”
18. Aforesaid testimony of Mangesh Ratan Sonawane
(PW-2) gets full corroboration from the FIR (Exh.26) lodged by
him. It is true that, there are some omissions in his testimony.
They are pertaining to accused’s wandering outside the house in
naked condition with sword and accused was hiding himself in
vehicle known as ‘Kali-Piwali’ (dkGh&fioGh), but merely on the
basis of said omissions, which are of little significance, his
testimony on material particulars including motive, cannot be
discarded. On the contrary, material came on record through his
cross-examination strengthens the case of the prosecution that,
on fateful day, except accused, Sangita and their two tender
aged children, nobody was present in the house.
19. Nothing is brought on record through
cross-examination of Mangesh Ratan Sonawane (PW2), which
would create doubt about his version before the Court. It is
pertinent to note that, material circumstances appearing on
record through the evidence of Mangesh Ratan Sonawane (PW2)
have not been denied by the appellant-accused giving
suggestions. Therefore, there is no reason to discard evidence
of Mangesh Ratan Sonawane (PW2), which throws light on
relevant aspects viz. character of accused i.e. he was in habit of
drinking and gambling, him ill-treating wife-Sangita after raising
doubt about her fidelity. After information received from
Shobhabai, he rushed to the house of the accused, saw sister-
Sangita lying in injured state inside the house and also saw the
accused in hospital in injured state and naked condition.
20. Mahesh Abhimanyu Pagare (PW3), neighbouring
person, is also material witness. The material portion of his
evidence is as under:-
. “His house is situated in front of house of the
appellant-accused. Accused was residing in his house along
with wife, parents and children. On the day of incident,
parents of the accused had gone to visit four pilgrimage sites
in India (Char Dham Yatra) and brother of the accused
namely Nitin had gone to Shegaon. On 09.02.2013, at
about 06:00 a.m., he heard the noise of Krushna, the tender
aged son of appellant-accused and deceased-Sangita. On
hearing the noise of Krushna, he awakened from sleep and
went towards the house of the appellant-accused and on
reaching there, saw through the door of the house that
accused was wandering in naked position. The house of the
accused was in locked condition. It was locked from inside.
He also saw the children were weeping in the room by sitting
on the cot in front room and saying ‘Papa open the door’. He
asked the accused to open the lock of the house but,
accused was unable to hear as he has received cut injury to
his neck. Accused had also received injuries to wrists of
both the hands. Deceased-Sangita was lying in the house in
pool of blood. She did not respond to the call given by him.
He with the help of Sonu opened the door by pulling the
same by means of tommy. On opening the door, accused
came outside the house in naked condition. After entering
into the house, they confirmed that, Sangita died. Wooden
log (Musal), Sword and Blades found lying there. Blood was
spread in the kitchen room. He found clothes viz. Blanket,
Shirt and Pant were burning in the latrine. After coming out
of the house, he found accused wandering there in naked
condition. He along with Sonu put the accused in his
vehicle. Accused was making signs but they were unable to
understand the signs. He took the accused to the hospital.
He identified the muddemal articles viz. Wooden Rod
(Musal), Sword and two Blades found lying in the house.
From his cross-examination, it has come on record that, the
door of the house of the accused, locked from inside, was
grill door with net and soon after his opening the door with
the help of tommy, accused moved outside the house in
frightened condition. In further cross-examination, he has
made it clear that, Mangesh Ratan Sonawane (PW2) came to
the spot before his taking the accused in his vehicle to the
hospital.”
21. Thus, from the aforesaid evidence of Mangesh Ratan
Sonawane (PW2), it is crystal clear that, when the incident took
place, the grille door of the house of accused was locked from
inside and he forcibly opened said door with the help of ‘tommy’.
His evidence in respect of the above fact is corroborated by spot
panchanama (Exh.17) and evidence of Ramrao Sonawane-
Investigating Officer (PW6) at Exh.33. Spot panchanama
(Exh.17) & sketch map (Exh.21), demonstrate that, the house of
accused had two doors, front door was facing north and backside
door was facing south. Ocular evidence of Mahesh Abhimanyu
Pagare (PW3) as discussed above, abundantly makes it clear
that, when the incident took place, front door was locked from
inside. As far as backside door is concerned, Ramrao Sonawane-
Investigating Officer (PW6) in his evidence at Exh.33 deposed
that, it was in closed condition when he visited the house of the
accused immediately after receiving the information about the
incident and had inspected the same. This statement of Ramrao
Sonawane-Investigating Officer (PW6) has not been challenged
by the accused during cross-examination by giving suggestion
denying the same. The evidence of Ramrao Sonawane-
Investigating Officer (PW6) lends full corroboration to the
evidence of Mahesh Abhimanyu Pagare (PW3) as well as
Mangesh Ratan Sonawane (PW2 & first informant) on material
aspects. It is pertinent to note that, through the scanty crossexamination
of Ramrao Sonawane-Investigating Officer (PW6),
nothing is brought on record on the basis of which, case of the
prosecution can be discarded.
22. Master Krishna Akhade (PW-4), son of deceased
Sangita and the appellant –accused, was 4 year old tender aged
child. It is abundantly clear from the evidence of Mr Mangesh
Sonawane (PW-2) and Mr Mahesh Pagare (PW-3) that, Krishna
Akhade (PW-4) was present in the house when the incident took
place. As already referred to in foregoing paragraphs, master
Krishna Akhade (PW-4) had not seen entire incident. Material
portion of his testimony is as under:
“I am taking education in Balwadi. My mother’s name is
Sangita. The name of my father is Bhatu. The name of
my sister is Divya. There was quarrel on that day in
between my mother and father. My father beat to my
mother by means of wooden log. I had seen the said
incident. There was smoke in the house. Door was
opened by Sonu uncle and Golu Uncle.”
23. Record reveals that, before recording the evidence
learned Additional Sessions Judge, Dhule ascertained as to
whether master Krishna Akhade is a competent witness and
whether oath can be administered to him by putting certain
preliminary questions. Record further reveals that, considering
very tender age of master Krishna Akhade, learned Additional
Sessions Judge, Dhule decided not to administer oath to him.
During cross-examination master Krishna Akhade clearly stated
that, he had been awakened from sleep hearing shouting, which
clearly establishes that, he had seen the incident not fully, but
partly. Nothing is brought on record through his
cross-examination, on the basis of which, his evidence can be
discarded branding it to be tutored. No doubt, cross-examination
of master Krishna Akhade (PW-4) reveals that, 1½ months prior
to recording of his evidence maternal uncle Mangesh Sonawane
(PW-2) had taken him to his house from the house of parental
grandfather and grandmother. Merely for the reason that, master
Krishna Akhade (PW-4) was in the custody of Mangesh
Sonawane (PW-2) prior to his entering into the witness box,
inference cannot be drawn that, Mr Mangesh Sonawane (PW-2)
had tutored him before coming to the court for giving evidence.
It is pertinent to note that, on very next day of the incident,
statement of master Krishna Akhade under Section 161 of CrPC
was recorded. Testimony of master Krishna Akhade is free from
any omission or contradiction. Since the statement of master
Krishna Akhade (PW-4) under Section 161 of CrPC was recorded
on very next day of the incident when he was in the custody of
parents of the appellant, question of his tutoring at that time by
his maternal uncle Mr Mangesh Sonawane (PW-2) does not arise.
24. In the matter of Dattu Ramrao Sakhare Vs. State of
Maharashtra, 1997 (3) Mh.L.J. 452, the Hon’ble Supreme Court
while dealing with the aspect of competency and credibility of
child witness under Section 115 of the Indian Evidence Act,
1872, in paragraph no.5 of the Judgment, held as under :
“A child witness if found competent to depose to the facts
and reliable one such evidence could be the basis of
conviction. In other words even in the absence of oath
the evidence of a child witness can be considered under
Section 118 of the Evidence Act provided that such
witness is able to understand the questions and able to
give rational answers thereof. The evidence of a child
witness and credibility thereof would depend upon the
circumstances of each case. The only precaution which
the court should bear in mind while assessing the
evidence of a child witness is that the witness must be a
reliable one and his/her demeanour must be like any
other competent witness and there is no likelihood of
being tutored.”
25. It can be gathered very well that, the evidence of
master Krishna Akhade (PW-4) in the light of the aforesaid
principles laid down by the Hon’ble Supreme Court, referred
above, is reliable one and there is no likelihood of him being
tutored. When tests of reliability and free from tutoring are
satisfied, merely for the reason that oath was not administered
to master Krishna Akhade (PW-4), his evidence cannot be kept
out of consideration under Section 118 of the Indian Evidence
Act, 1872. From any angle, the arguments advanced by Mr P.S.
Paranjape, learned counsel for the appellant-accused that,
master Krishna Aakhade was not only incompetent, but also
tutored child witness, cannot be accepted, since nothing is
brought on record to substantiate the same either from his
cross-examination or from any prima facie cogent evidence.
26. Section 106 of the Indian Evidence Act, 1872
provides that, ‘when any fact is especially within the knowledge
of any person, the burden of proving that fact is upon him’.
27. In case at hand, it is proved beyond doubt that, at
the time of incident, except Sangita, the appellant – accused and
their two tender aged children, nobody was present in their
house, which was locked from inside. It has also been proved
very well that, elder child master Krishna was tender aged child,
below 5 years and daughter of deceased Sangita and appellant
by name Divya was younger to Krishna (PW-4) was hardly three
year old. As already stated earlier that, master Krishna Akhade
(PW-4) had not seen the incident fully and whatever incident he
had seen, had been stated before the Court. In such
circumstances, under Section 106 of the Indian Evidence Act,
1872, burden lies on the appellant - accused to explain by
adducing prima facie evidence as to how incident took place.
At the cost of repetition, we may say that, the appellant –
accused has not brought on record any material fact either from
cross-examination of witnesses examined by prosecution or by
producing any defence witness on the basis of which inference
can be drawn either that during fateful morning at the
instance of Sangita quarrel broke out and in that quarrel
Sangita had attacked appellant and while defending himself he
assaulted Sangita or that some third person either for
committing theft or for other reason had entered into the house
and assaulted Sangita and appellant, both. The discussion
hereinbefore rules out possibility of third person entering into the
house when the incident took place. Therefore, the possibility
argued by Mr P.S. Paranjape, learned counsel for the appellant
holds no water. In the absence of even semblance, possibility of
quarrel with Sangita and her attacking appellant gets ruled out
completely.
28. In addition to the motive behind crime, evidence
came on record makes it clear that, it was the appellant who in
the fit of anger picked up quarrel with wife Sangita and brutally
assaulted her by means of sharp edged object viz. sword, blade
and hard and blunt object viz. pestle (musal) recovered from the
spot under panchanama (Exh.17), which is not denied by the
appellant-accused.
29. It is important to note that, shortly after the incident
spot panchanama (Exh.17) was drawn and under that
panchanama all the incriminating articles lying there were seized
and on very next day those articles were sent to Forensic Lab,
Nashik for examination and report under requisition (Exh.19).
CA report (Exh.11) speaks volumes that, the blood group of
deceased Sangita was ‘B’ and all the articles seized from the spot
bore the group ‘B’ blood stains. This is also the clinching
circumstance, which entwines guilt of the appellant – accused.
30. The appellant – accused used to suspect infidelity by
Sangita, therefore, the relations between them were strained.
This would certainly provide as a motive for the offence. The
evidence of Mr Mangesh Sonawane (PW-2) on this important
aspect went unchallenged. The appellant - accused has not
denied the same by giving suggestion during his
cross-examination, also strengthens the case of the prosecution
that it was none other than appellant- accused who inflicted very
serious injuries on vital parts of deceased Sangita. Post-mortem
report (Exh.18) shows the gravity of those injuries. Having
regard to the totality of evidence, it can be said without
hesitation that, the injuries suffered by deceased Sangita were
sufficient in ordinary course of nature to cause her death and the
appellant - accused caused the same with intention, therefore,
the case of prosecution is squarely covered by clause three of
Section 300 of IPC.
31. As far as submissions made by Mr P.S. Paranjape,
learned counsel for the appellant – accused, of unsoundness of
mind of the appellant – accused when incident took place and
benefit of Section 84 of the IPC, we may say that, plea of
unsoundness of mind of the appellant – accused was not taken
either at the time of remand or at the time of framing charge or
thereafter till judgment was pronounced by learned Additional
Sessions Judge, Dhule. For first time during the course of final
argument, Mr Paranjape, learned Counsel, raised such plea since
appellant – accused was found moving naked after the incident
inside and outside the house, without being supported by any
evidence.
32. Section 84 of the IPC contemplates that, ‘nothing is
an offence which is done by a person who, at the time of doing
it, by reason of unsoundness of mind, is incapable of knowing
the nature of the act, or that he is doing what is either wrong or
contrary to law.’
33. Section 105 of the Indian Evidence Act, 1872, deals
with the burden of proving case of accused comes within
exceptions. According to this provision, ‘when a person is
accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the General
Exceptions in the Indian Penal Code, or within any special
exception or proviso contained in any other part of the same
Code, or in any law defining the offence, is upon him, and the
Court shall presume the absence of such circumstances.’
34. In the case of Shrikant Anandrao Bhosale Vs. State
of Maharashtra, 2003 SCC (Cri) 144, the Hon’ble Supreme Court
held as under:
“The burden of proving the existence of circumstances
bringing the case within the purview of Section 84 of IPC
lies upon the accused under Section 105 of the Indian
Evidence Act. Under the said section, the court shall
presume the absence of such circumstances.
Undoubtedly, the state of mind of the accused at the time
of the commission of the offence is to be proved so as to
get the benefit of the exception. Further, the nature of the
burden of proof on the accused to prove insanity is no
higher than that which rests upon a party to civil
proceedings.”
35. In case at hand, the appellant – accused has not
adduced any evidence on the point that, he was suffering from
unsoundness of mind prior to the incident, at the time of incident
or thereafter so as to prove the same on preponderance of
probability. It is pertinent to note that, neither suggestions to
this effect were not given to the witnesses examined by the
prosecution during the course of their cross-examination, nor
has brought on record medical papers showing that, the
appellant was and / or is taking treatment for unsoundness of
mind or insanity. He has also not stated anything in respect of
the same in his statement recorded under Section 313 (1)(b) of
CrPC. Under such circumstances, merely having regard to the
fact that, the appellant – accused after incident was found
moving in naked condition, it cannot be held that, at the time of
incident, he was insane and the fact of insanity has been proved
by him on the preponderance of probabilities as contemplated in
Section 105 of the Indian Evidence Act, 1872.
36. Spot panchanama (Ex.17) and evidence of
Mr Ramrao Sonawane, Investigating Officer (PW-6) reveal that,
after committing brutal murder of wife Sangita the appellant –
accused being terribly frightened, out of fear took decision to
commit suicide and in attempt to commit suicide initially got
inflicted injuries on his neck and wrist of both the hands by the
blade and then tried to burn himself. However, him being taken
to the hospital by Mr Mahesh Pagare (PW-3), he survived.
37. Injury Certificate (Exh.23), genuineness of which not
disputed by the defence, demonstrates that, during the incident,
referred above, the appellant – accused suffered in all four
injuries viz. right hand ventral surface three cut margins, left
hand ventral surface one cut margin, cut in throat 3x4 cm
vertically, abrasion over chest and legs. In addition to that, this
Injury Certificate (Exh.23) states that, ash was seen on head (as
he tried to burn himself) and blood all over the body.
38. Injury Certificate (Exh.23) clearly demonstrates that,
aforesaid injuries were inflicted by appellant - himself. Thus,
Injury Certificate (Exh.23) lends support to the circumstantial
evidence, discussed above, establishing that after commission of
murder of Sangita, appellant - accused out of fear not only burnt
his clothes which were removed from his person, but also
attempted to commit suicide by burning and causing injuries
himself. Since appellant – accused had removed clothes on his
person and burnt the same after the incident, he had no other
option than to move inside and outside the house, after opening
the grille door of the house by Mr Mahesh Pagare (PW-3), in
naked condition. This circumstance makes it clear that, how the
defence of insanity is not correct and is an afterthought.
39. In the course of statement recorded under Section
313 of the CrPC, the appellant – accused has admitted some of
the incriminating circumstances and avoided to either admit or
deny the rest of the incriminating circumstances. This also lends
support to the case of the prosecution.
40. Submissions made by Mr P.S. Paranjape, learned
counsel for the appellant – accused pertaining to
non-examination of Shobhabai and drawing adverse inference,
we say that, role of the Shobhabai was limited to the extent of
informing younger sister of Sangita about whatever she gathered
from the place of incident and not more than that. Therefore, no
adverse inference as to the genuineness of the evidence of
Mr Mangesh Sonawane (PW-2) or genuineness of the case of the
prosecution can be drawn.
41. In the case of Majid and Ors Vs. State of
Maharashtra & Ors, Criminal Appeal No.132 of 2008 (arising out
of S.L.P. (Cri.) No.2809 of 2007), the Hon’ble Supreme Court
held that,
‘the omission on the part of the prosecution to
explain the injuries on the person of the accused
assumes much greater importance where the
evidence consists of interested or inimical witnesses
or where the defence gives a version which competes
in probability with that of the prosecution one.’
42. In case at hand, the witnesses examined by the
prosecution are neither interested nor inimical. We have
discussed as to how their evidence is trustworthy and reliable.
We have seen that, while the incident took place inside the
house, front and rear doors which are entry points were locked
and closed from inside. There was no scope for third person to
enter and at the time of incident, except appellant- accused,
Sangita and their tender aged two children, nobody was present
in their house. In such circumstances, it was necessary on the
part of the appellant – accused not only to explain as to how the
incident took place, but also as to how he sustained injuries on
his person. He has failed to explain the same.
43. On the contrary, the evidence adduced by the
prosecution, discussed herein before, makes it clear that, it was
the appellant – accused, who first committed murder of his wife
deceased Sangita by inflicting multiple grievous injuries on her
person by means of sharp edged object viz. sword, blade and
hard and blunt object viz. pestle, which were recovered from the
spot during panchanama conducted immediately after the
incident and then with the help of sharp edged object got
inflicted injuries on his person with an intention to commit
suicide. In the circumstances, aforesaid observations by the
Hon’ble Supreme Court no way help the appellant – accused for
claiming acquittal.
44. In the case of Lakshmi Singh and Ors Vs. State of
Bihar, Criminal Appeal Nos.284 and 285 of 1971, the Hon’ble
Supreme Court set aside the conviction holding that,
“High Court has not considered important
circumstances which completely demolish the
prosecution case. In fact the High Court has hardly
made any real attempt to analyse or discuss the
evidence and has merely affirmed the finding of the
Sessions Judge by narrating the evidence relied upon
by it. We have already pointed out that on one of
the most important points arising in : a criminal trial,
namely, the non-explanation of the injuries on the
person of the accused by the prosecution, the High
Court has not only committed an error of fact but an
error of law by showing a lack of proper appreciation
of the principles decided by this Court.”
45. Facts of the case at hand are quite different. We
have discussed, as to how defence of the accused that third
person or thief initially committed assault on his wife Sangita and
then on him, is improbable and false. There is clinching evidence
on the aspect that, the house where the incident took place was
locked and closed from inside. After the incident its front door
was broken open by Mr Mahesh Pagare (PW-3) with the help of
one Sonu. Mr Ramrao Sonawane, Investigating Officer (PW-6)
has made it clear that backside door was also closed when spot
panchanama was drawn immediately after incident. Somebody
else or thief entering into the house was not at all possible.
Therefore, it was impossible for the prosecution to prove the
injuries on the person of the appellant – accused. However,
circumstantial evidence discussed at length shows that, injuries
noticed on the person of the appellant – accused were inflicted
by him with an intention to commit suicide after committing
murder of wife.
46. At this juncture, it would profitable to make a
reference to legal guidelines delineated by Honourable Apex
Court in the case of Musheer Khan alias badshah Khan vs. State
of M.P., 2010 (2) Mh.L.J. (Cri.) (S.C.) 505 = LEX (SC) 2010, 170
in which, it has been observed that,
‘while appreciating the circumstantial evidence the
Court must adopt a cautious approach as
circumstantial evidence is “inferential evidence” and
proof in such a case is derivable by inference from
circumstances. It was held that the facts alleged on
the basis of any legal inference from circumstantial
evidence must be proved beyond any reasonable
doubt. It must create a complete chain of
circumstances, which would lead to inescapable
inference of guilt of the accused. The circumstances
must be consistent with the guilt of the accused and
inconsistent with their innocence.’
47. Herein this case, the circumstances complete the
chain leading to the conclusion that, none other than the
appellant is assailant and after committing murder of wife had
attempted to commit suicide.
48. In view of the above, we are of the considered
opinion that, the conclusion drawn by the learned Additional
Sessions Judge, Dhule for conviction of appellant – accused on
both the counts and resultant sentences imposed on him are
just, proper and reasonable. There is no perversity or error in
the findings by learned Additional Sessions Judge, Dhule.
Present appeal being devoid of merits, deserves to be dismissed.
Accordingly, Criminal Appeal stands dismissed.
( B. U. DEBADWAR ) ( SUNIL P. DESHMUKH )
JUDGE JUDGE
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