JUDGMENT
Vishnu Sahai, J.
1. The appellant aggrieved with the judgment and order dated 8-9-1994 passed by Additional Sessions Judge, Pune, in Sessions Case No. 465 of 1992, convicting and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for one month for the offence under Section 302 of the Indian Penal Code, has come up in appeal before us.
2. Shortly stated the prosecution case runs as under :-
Deceased Ranjana was the wife of the appellant. She was married to the appellant about ten years prior to the incident. She stayed with him for three years. Thereafter she went, to her father’s house and did not return for four years. Hence the appellant married one Laxmibai from whom three daughters were born. However, on account of dispute between her and the appellant, she went away. Thereafter the appellant brought back Ranjana to his house. He took her to Bombay and spent some time with her there. About a week prior to the incident the appellant and Ranjana came to village Kalamode in Taluka Khed to attend the fair of Rokadenath. They stayed in the house of Nagu Gopale,.PW. 3 (the father of the appellant). On the date of incident, namely the night of 16/17th April 1992, they slept in a room inside Nagu Gopale’s house. Nagu Gopale along with his wife slept in the Court yard in front of the house. Since it was previously decided that all of them would attend the fair of Rokadenath, Nagu Gopale woke up at about 4.00 a.m. He gave a call to the appellant who opened the door of the room wherein he was sleeping. He saw that there was blood on the person of Ranjana and the appellant was present there. He shouted. Hearing his shouts a large number of persons, including Shivram Dagadu Gopale, came. Shivararn Dagadu Gopale went to Ankush Gopale (PW 4), the police patil and informed him about the incident. Thereafter Ankush Gopale came to Nagu Gopale’s house. By that time the sarpanch had also come there. He along with the Sarpanch entered inside the house of Nagu Gopale and found that Ranjana was lying dead on the quilt spread on the floor. He also saw that the appellant was sitting there. He asked him what had happened to which the appellant replied that it happened.
3. Thereafter Ankush Gopale went home; took bath; went to Wada Police Out Post which was situated at a distance of 20/25 kilometers; and gave information.
The evidence of A.S.I. Chintamani Joshi (PW 8) shows that the information about the death of Ranjana conveyed by Ankush Gopale was reduced into writing by him on 17-4-1992. On the said information a case of accidental death was registered.
A.S.I. Joshi went to the place of incident and made preliminary inquiry. He prepared a panchanama of the corpse of the deceased and seized blood stained quilt and scrapings of plain and blood stained soil under a panchanama Exhibit 31. He found that the appellant was present near the corpse.
A.S.I. Joshi then prepared the F.I;R. and sent it to the police station. On the basis of the F.I.R. an offence was registered vide C.R.No. 33/92.
The same day A.S.I. Joshi arrested the. appellant who was putting on a blood stained underwear. He seized the same under a panchanama.
The appellant was taken to the Khed Police Station. During the course of interrogation the appellant expressed his willingness to get the weapon, namely an axe, recovered. He recorded the said willingness under a panchanama in the presence of public panch Prabhakar Gopale (PW 5). Thereafter he along with the said public panch and the appellant went to the house of the appellant where the appellant opened the door of his house and from behind the tin boxes in a room, took out a blood stained axe. The said axe was seized under a panchanama, Exhibit 38.
During investigation, the blood stained clothes of the deceased, the blood stained underwear of the appellant and the blood stained axe recovered on his pointing out were sent to the Chemical Analyst.
On 20-4-1992 A.S.I. Chintamani Joshi (PW 8) handed over the investigation to P.S.I. Madhukar Mote (PW9). He sent the appellant to the doctor for extraction of his blood. The doctor took out appellant’s blood and sent it to him. He in turn sent the same to the Chemical Analyst. He also recorded the statement of Shanitaram Gopale (PW 7).
On 12-8-1992 P.S.I. Mote submitted the chargesheet against the appellant.
4. Going backwards, the autopsy on the corpse of the deceased was conducted on 17-4-1992 by Dr. Hemant Satarkar (PW 10) who found on it the following ante-mortem injuries :-
1. Transverse sharp cutting injury measuring 6″ x 1″ and bone deep going from right mallar to external pinna of the ear (on the cheek from nose to ear). There were blood clots.
2. Sharp cutting injury 6″ x 2″ x 3″ deep to left face transverse through left ear deep to neck structure with blood clots.
3. Sharp incised injury right below the ear measuring 2″ by one and half inch at the level of nape of neck (half lines) muscle deep with blood clots.
In the opinion of Dr. Satarkar the deceased died on account of traumatic shock due to multiple incised injuries to the face and neck and the said injuries couplied with internal damage were sufficient in the ordinary course of nature to cause death.
5. The case was committed to the Court of Sessions in the usual manner where the appellant was charged for an offence under Section 302 of the Indian Penal Code to which charge he pleaded not guilty and claimed to be tried.
During trial, in all, the prosecution examined ten witnesses.
We may straight away mention that there is no eyewitness of the incident and the case rests on circumstantial evidence.
The learned trial Judge believed the circumstances, adduced by the prosecution and convicted and sentenced the appellant in the manner stated in para 1.
Hence this appeal.
6. Although this appeal is on the final hearing board since long, it was the matter of profound regret that the learned counsel for the appellant is not present. Since the appellant is in jail from 17-4-1992, we did not adjourn the appeal, but instead, decided it with the assistance of Ms. Usha Kejariwal, the learned counsel for the respondent. That we can do so is clear from the judgment of the Supreme Court reported in 1996 AIR SCW 2986: (1996 Cri LJ 3491) (Bani Singh v. State ofU. P.).
7. Having gone through the evidence of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statement of the appellant recorded under Section 313 of the Criminal Procedure Code; and the impugned judgment, we are satisfied that there is no merit in this appeal.
8. As mentioned above, the conviction of the appellant rests on circumstantial evidence. It is well-settled that circumstantial evidence can only be made a basis for conviction if :-
(a) the circumstances are affirmatively established against the accused;
(b) they conculsively lead to the inference of his guilt;
(c) they are inconclusive with the inference of his innocence; and
(d) they are incapable of being explained on any other reasonable hypothesis, excepting guilt of the accused.
We have borne in mind the said norms while reaching the conclusion that there is sufficient circumstantial evidence of a creditworthy nature fixing involvement of the appellant in the murder of his wife.
9. The main circumstances on which the prosecution relies against the appellant are :-
(a) motive;
(b) on the night of 16/17th April, 1992 at about 9.30 p.m. after dinner the appellant was last seen with the deceased inside the house by his father Nagu Gopale (PW 3) and in the morning of 17th April, 1992 at about 4.00 a.m. Nagu Gopale saw that Ranjana was lying dead and the appellant was sitting by her side;
(c) the appellant when apprehended was putting on a blood stained underwear;
(d) recovery of the blood stained axe on the pointing out of the appellant;
(e) presence of the axe injuries on the corpse of the deceased; and
(f) failure of the appellant to discharge the statutory burden enjoined on him under Section 106 of the Indian Evidence Act.
10. We would individually take up each of the circumstances.
In respect of circumstance (a) we have the evidence of Shantaram Gopale (PW 7). His evidence shows that on 16-4-1992 at about 11.00 a.m. he had gone to the house of the appellant to bring a bicycle. He asked his wife whether Tabaji was at home. She answered in the affirmative. The appellant saw this and from this started nursing a suspicion about the fidelity of his wife.
It is pertinent to mention that the same night the deceased was murdered.
We have gone through the evidence of Shantaram and we find that it inspires confidence. Although he was subjected to extensive cross examination, but nothing could be extracted therefrom which would shake his credit. He is an independent witness who had no axe to grind against the appellant.
In our view, this circumstance is established.
11. We now come to circumstance (b) namely on the night of 16/17th April 1992 at about 9.30 p.m. after dinner the appellant was last seen with the deceased inside the house by his father Nagu Gopale (PW 3) and in the morning of 17th April, 1992 at about 4.00 a.m. Nagu Gopale sawthat Ranjana was lying dead and the appellant was sitting by her side. In support of this, we have the evidence of Nagu Gopale, the father of the appellant. His evidence shows that on the night of the incident (16/17th April, 1992), after taking dinner, the appellant and his wife Ranjana slept inside his house and he and his wife slept in the Court yard which was situated in front of his house. Since all of them had to go to the fair of Rokadenath early in the morning, he woke up at about 4.00 a.m. and asked the appellant to open the door. The appellant opened the same and thereafter he saw Ranjana lying dead.
We have gone through the evidence of Nagu Gopale and found it to be credit worthy. It should be borne in mind that being the father of the appellant he would be the last person who would falsely implicate him. It is pertinent to mention that he was subjected to cross examination but nothing could be scored therefrom which would shake his veracity.
In our view this circumstance is also established.
12. Now we come to circumstance (c) namely the appellant being apprehended while putting on a blood stained underwear by A.S.I. Chintamani Joshi (PW8). In support of this circumstance we have the evidence of A.S.I. Joshi (PW 8) and the public panch Prabhakar Gopale (PW 5). Their evidence shows that, in the police chowky, on 17-4-1992 the appellant was putting on a blood stained underwear which was seized under a panchanama. Although both these witnesses were subjected to the extensive cross-examination, but nothing could be scored therefrom which would discredit their evidence. It is pertinent to mention that Prabhakar is a wholly independent witness who had no axe to grind against the appellant and neither from the cross-examination of A.S.I. Joshi, has the appellant’s counsel been able to extract any reason as to why he would falsely show this recovery.
In our view, this circumstance is also established.
13. We now come to circumstance (d) namely recovery of blood stained axe on pointing out of the appellant. The same witnesses who proved circumstance (c) have proved this circumstance. The evidence of A.S.I. Joshi shows that during the course of his interrogation the appellant expressed his willingness to get the axe recovered. The said willingness was recorded in the presence of public panch Prabhakar Gopale (PW 5) in a panchanama and thereafter in his presence and in that of said panch the appellant took out a blood stained axe from behind the tin boxes in a room of his house.
As we have observed in respect of circumstance (c) the said witnesses had no rancour or ill will against the appellant and consequently we see no reason for their falsely deposing about this recovery.
It is pertinent to mention that the axe and underwear of the appellant, as also the clothes of the deceased, were sent to the Chemical Analyst who found on them blood of ‘A’ group. It is also pertinent to mention that sample of appellant’s blood was taken and sent to the Chemical Analyst who found it to be of ‘B’ group. In our view the presence of blood of’A’ group both on the axe and underwear is a highly incriminating circumstance against the appellant.
14. We now come to circumstance (e) namely the medical evidence which, in our view, incriminates the appellant because autopsy surgeon Dr. Hemant Satarkar (PW 10) found three sharp cutting injuries on the person of the deceased, which in his opinion, could be caused by the axe shown to him viz. Article No. 4. We find merit in this opinion of Dr. Satarkar. It is common knowledge that axe would cause such injuries.
In our view, this circumstance is also established.
15. We now come to the final circumstance viz. failure of the appellant to discharge the statutory burden fastened on him by Section 106 of the Indian Evidence Act. The said section provides that “when any fact is especially within knowledge of any person, the burden of proving that fact is upon him.”
Since we have held that circumstance (b), namely on the night of 16/17th April, 1992 at about 9.30 p.m. after dinner the appellant was last seen with the deceased inside the house by his father Nagu Gopale (PW 3) and in the morning of 17th April, 1992 at about 4.00 a.m. Nagu Gopale saw that Ranjana was lying dead and the appellant was sitting by her side, has been established, it was incumbent on the appellant, as mandated by Section 106 of the Indian Evidence Act, to explain how the deceased was killed. We have perused the statement of the appellant recorded under Section 313 of the Criminal Procedure Code and are constrained to observe that he has failed to furnish therein any explanation as to how the deceased was killed.
In our view this circumstance is the final nail in the coffin of the appellant.
16. In our judgment, circumstances (a) to (f) have been conclusively established by the prosecution and unerringly lead to the inference that the appellant has committed murder of his wife Ranjana.
17. For the said reasons we do not find merit in this appeal. We consequently conform the conviction and sentence of the appellant for the offence under Section 302 of the Indian Penal Code and dismiss this appeal. The apellat is in jail and shall remain there till he serves out his sentence.