JUDGMENT
B.H. Marlapalle, J.
1. Both the appellants were put on trial in Sessions Case No. 15/95 before the learned Additional Sessions Judge at Beed for the offences under Section 498-A, 302 read with 34 of Indian Penal Code (the Code for short) and by judgment and order dated 29th January 1996 the learned Additional Sessions Judge was pleased to convict both the accused for an offence punishable under Section 498-A read with 34 of the Code, whereas the accused No. 1 has been in addition convicted under Section 302 of the Code and accused No. 2 has been acquitted for the same offence. Accused No. 1 is sentenced to undergo R. I. for life for his conviction under Section 302 of Indian Penal Code and both the accused have been sentenced to undergo R. I. for a period of 6 months for the offence punishable under Section 498-A read with 34 of the Code. The Sessions Court recorded that accused No. 2 was arrested on 12-1-1994 and she was in jail till 19-1-1994 and therefore, for the said period she was given set of. This appeal arises from the said order of conviction and sentence.
2. The prosecution case can be briefly stated as under :
Deceased Sunita was married to accused No. 1 Bajirao who is the son of accused No. 2 Asrabai and both of them are agricultural labourers. Sunita did not bear a child for about 6 years after her marriage and on that count the accused No. 1 used to regularly beat and ill-treat her. The accused No. 2 used to harass Sunita by calling her “Wanzoti” (barren). She was informing her parents about the said ill-treatment and harassment and also about the demands to get articles like cot, watch, beddings etc. from her father and then only she would be continued in the matrimonial home even though she could not bear a child. During the Diwali festival such demands used to be made and as and when the demands were not met, the accused No. 1 had gone to his in-laws house and brought Sunita forcibly to the matrimonial home and beaten her. Two months prior to the incident, Mahadeo Ghodke (P.W. 2) had met Sunita in the house of Ramchandra (P.W. 5) and she had narrated the ill-treatment meted to her by the accused. Both of them therefore accompanied Sunita to her in-laws house whereupon the accused had first refused to take Sunita in their house but with the intervention of the neighbours she was admitted in the house by the accused. In mid November 1993 Sunita had joined her husband to work as a labourer for construction of road under the contractor viz. Syed Javed Jamal who had engaged about 100 such labourers at the site at Beed Borfadi Road. They used to stay at the site which indicated that their house hold was set up at the construction site along with other labourers. On 30-11-1993, they worked for the full day and went to bed side by side at the construction site and next day early in the morning deceased Sunita allegedly complained of pains. The accused No. 1 informed the same to Dadahari (P.W. 11) who was the supervisor of the construction site and Sunita was therefore taken to the civil hospital at Beed in a truck. The medical officer on duty noted that Sunita was unconscious and she was admitted around 8 a.m. While under treatment she passed away at about 9 p.m. on 1-12-1993. Inquest panchanama at Exh. 11 was drawn and it was noted that there were red marks around her neck, abrasions on left knee, left calf muscle as well as on elbows of both hands. A blood clot was seen near her ear. The dead body was subjected to post mortem and Dr. Tukaram Deshmukh (P.W. 9) had conducted the post mortem. The post mortem report at Exh. 31 was prepared and signed by him along with Dr. Khose. The provisional certificate (Exh. 29) was issued on 2-12-1993 by both the doctors and on receiving the C. A. report they issued final certificate at Exh. 30 and as per the same the probable cause of death was recorded as “Cardio respiratory failure, due to cerebral hypoxia and secondary of strangulation”. Rajendra (P.W. 4) the father of deceased Sunita filed complaint at Exh. 18 which came to be registered as F.I.R. The clothes of the deceased came to be attached under panchanama at Exh. 9 by police Head Constable Dhas. The Beed city police station subsequently forwarded the complaint to Pimpalgaon police station and it came to be registered as Crime No. 148/93. P.S.I. Khan investigated the offence, recorded statements of witnesses. Accused No. 1 was arrested on 9-12-1993 and accused No. 2 was arrested on 12-1-1994. The attached clothes as well as vicera were sent to the chemical analyst. Thereafter P.S.I. Salunke had taken over the case. On completion of investigation he filed the charge sheet in the Court of J.M.F.C. at Beed on 17-1-1995. As the case was triable exclusively by Sessions Court, it was committed by order dated 30-1-1995 and charge at Exh. 5 was framed on 3-11-1995 by the learned Additional Sessions Judge.
3. Both the accused pleaded not guilty before the Sessions Court and therefore, the prosecution was called upon to prove the offence. In all 12 witnesses were examined. In support of the inquest panchanama at Exh. 11, P.W. 1 Laxman was examined and he stated that when he saw the dead body of Sunita he had noticed blood oozing out of her left ear. There were red marks on the neck. There were abrasions on the left knee and left calf muscle as well as elbows of both the hands. (P.W. 2) Mahadeo Ghodke, (P.W. 3) Syed Jamal and (P.W. 4) Rajendra the father of deceased were examined on 4-12-1995. It appears that after these 3 witnesses were examined, there was a compromise with the accused and consequently all the witnesses examined on 5-12-1995 turned hostile. They were (P.W. 5) Ramchandra Rasal, (P.W. 6) Anita w/o Namdeo Narwade- the younger sister of the deceased and (P.W. 7) Asrabai Nawale – the mother of the deceased. Shahid Khan (P.W. 8) and Shivaji Dhas (P.W. 9) were examined as police personnel.
4. Dr. Tukaram Deshmukh, Medical Officer, Civil Hospital, at Beed at the relevant time in his deposition stated before the trial Court that on 2-12-1993 he was posted for post mortem duty and he along with Dr. Khose had performed the post mortem between 11.15 a.m. to 12.15 noon on the dead body of Sunita. He had noticed that the eyes were closed, body was slightly swollen, face was conjested and there was evidence of blood discharge from left ear pina. The following external injuries were found on the dead body :
(A) Abrasion on right elbow lateral side 3 x 3 cm. reddish in colour.
(B) Deep abrasion on left lateral malleolus 2 x 2 cm. reddish in colour
(C) Abrasion on left elbow 1 x 1 cm. reddish in colour
(D) Bruise over neck on left side, superior aspect lateral side bluish black in colour size 2 x 1 cm. margins irregular and not well defined.
It was further found that Lyranix Lareyses, Trachea and bronkchi congested. There was evidence of fracture of hyoid bone, left end and verticle fracture of thyroid cartilage on left side. Right lung was conjested and at places emphysatous. The heart contents were dark colour blood with clot in both chambers. Viscera was preserved along with the contents in intestine, lever, spleen, kidney and lungs. Provisional certificate at Exh. 29 was issued by both the doctors and after receiving the C. A. report, final certificate was issued at Exh. 30 certifying the cause of death as “cardio respiratory failure, due to celebral hypoxia secondary to strangulation.” Nothing much was brought out in the cross examination and the medical opinion that Sunita died due to cardio respiratory failure on account of celebral hypoxia secondary to strangulation remained unshaken and thus falsified the contention of the accused that the deceased was complaining of pain and therefore she was taken to the civil hospital in an unconscious condition. It was not natural death that Sunita met and she died a homicidal death while she was in the company of her husband on the road construction side.
5. We had little apprehension in our mind regarding medical evidence inasmuch as on one hand it was revealed that Sunita died due to strangulation and on the other hand, it was revealed that she was admitted at about 8 a.m. in an unconscious condition and she died after about 12 hours on the same day. We were doubtful whether Sunita was already dead when she was taken to the hospital at about 8 a.m. on 1-12-1993. We therefore, sought the assistance of Dr. S. D. Nanandkar, Professor of Forensic Medicines, Government Medical College at Aurangabad and he agreed with the medical opinion recorded before the trial Court. He referred to the following paragraph from the book “The Essentials of Forensic Medicine” by Cyril John Poison :
“SURVIVAL AFTER THROTTLING”
“Survival will depend, of course, the upon the degree and duration of compression of the neck. It does not follow that minor fractures of the larynx will prove fatal.
In throttling, however, the results are not those of injury to the larynx alone. As a rule the intent is to kill, and therefore, compression is continued, until or after, death takes place. If the grip seriously interfered with the cerebral circulation, and recovery occurs, it may be incomplete; the victim may then have permanent disability arising out of cerebral damage following cerebral anoxia.
When throttling has been attempted at about the moment of death, it may be difficult to say with certainty whether the deceased was alive or dead at the time. Nail marks, in particular, can appear much the same whether inflicted just before or just after death.”
The Professor went further to explain before us that fracture to a hyoid bone, or thyroid cartilage does not necessarily lead to instantaneous death though the patient becomes unconscious and would be alive even for more than 12 hours. But in such case of delayed death, both the chambers of the heart would be full of blood. Whereas if the death on account of strangulation was occurred instantaneously, one chamber of heart would be empty.
6. The defence has not seriously disputed the fact that Sunita died a homicidal death by strangulation. What is disputed before us is that the death cannot be attributed to the accused though they were staying together at the construction site. It was contended by Shri Borde, the learned counsel for the appellant that at the construction site there were no enclosed houses which can be confined only to one family and when it has come in evidence that all the labourers were sleeping in the night in an open area the action of strangulation of Sunita cannot be attributed to the accused with certainty specially when the incident had taken place in the night. In short, it is the case of the defence that the burden of proving the fact especially within the knowledge under Section 106 of the Indian Evidence Act would not be on the present accused as he and the deceased were not staying in an enclosed home which can be locked from inside and had no access to anyone else in normal course. He also submitted that the allegations regarding demand of money were baseless and could not be proved. The prosecution thus failed to bring home the motive behind the accused causing the death of his wife. Shri Borde further submitted that this being the case of circumstantial evidence, the chain of circumstances is snapped on account of the failure of the prosecution in establishing the accused and deceased being in the company of each other in an enclosed premises at the time of incident or in the same period.
7. On the issue of motive, we may usefully refer to the view taken by the Apex Court, in the case of Ganeshlal v. State of Maharashtra reported in 1992 Cri.L.J. 1545. There Lordships stated thus :
“In circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved. Men do not act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor for conviction. Even in the case of circumstantial evidence, absence of motive which may be one of the strongest links to connect the chain would not necessarily become fatal provided the other circumstances would complete the chain and connect the accused with the commission of the offence, leaving no room for reasonable doubt, even from the proved circumstances.”
On the interpretation of Section 106 of the Indian Evidence Act, 1872 we may refer to the locus classicus in Shambhu Nath Mehra v. State of Ajmer Their Lordships have observed thus :
“This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word “especially” stresses that, it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.”
In the case of State of West Bengal v. Mir Mohammad Omar and Ors. the Court stated :
“A) The prestine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty.
B) Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
C) Section 106 of the Indian Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.”
8. On the touchstone of this legal position, let us examine the evidence regarding the husband and wife staying together. Syed Jamal (P.W. 3) the contractor for construction of road from Beed to Borfadi stated before the trial Court that his construction work was going on near the agricultural land of Bajirao and Dadarao Shinde was his mukadam. The spot was hilly track of village Borfadi. He was present at the spot when the spot panchanama Exh. 14 was drawn. He knew the accused as he was working as a labour on the said contract work and on 30-11-1993 accused No. 1 was working as a labour along with his wife. He had shown the muster role maintained by his mukadam. He admitted that there were about 50 to 60 workers every day at the concerned site and the work of construction would go on for months together. He also admitted that the labours who were working on the site would stay overnight there itself and in an open space even though they were from different villages. Dadahari Shinde (P.W. 11) who was working as a mukadam at the site admitted that he knew the accused and his wife Sunita and on the date of incident, construction work of the road from Borfadi to Kutewadi was going on and there were labourers from village Karzani, Kapildharwadi, Kolwadi, Ratnagiri, Mandavkhel. These male and female workers used to stay overnight at the site of work in the open space with their belongings. On the date of the incident, Sunita was working on the road along with the accused No. 1 and in the evening after the meals she had gone to bed. In the morning accused had woken up his wife and she was complaining of pain. She was therefore taken to the civil hospital at Beed in the truck belonging to the contractor. On the date of incident about 80 to 90 workers were working. All the workers used to sleep in one group very close to each other. When Sunita was not feeling well, her husband went to the witness and told him about the same and stated that she was required to be taken to the hospital. He along with accused reached Sunita to the civil hospital for treatment. The suggestion given to him in the cross examination that Sunita was not on duty on 30-11-1993 was stoutly denied.
9. The oral evidence of these 2 witnesses shows that the accused and deceased were on duty on 30-11-1993 and they worked till late in the evening. After the meals they had slept near each other in the night on the open space. When the homicidal death of his wife has not been disputed by him, it is necessary for him to come out with the explanation regarding the cause of death, so as to discharge the lawful burden in that regard under Section 106 of the Indian Evidence Act. The learned counsel stated that he was not required to do so as the couple was admittedly not staying in an enclosed home which did not have access to any third person in the ordinary course. Can this submission be accepted is the moot question for our consideration.
The term “home” cannot have a fixed or static meaning in the Indian conditions where there are millions who are homeless and stay on the foot paths, roads or in the open space depending on the means of livelihood and the place where they earn this livelihood. In the villages, the labourers may have a home in terms of a dwelling enclosed of walls or may be a hut. These residential dwellings are not normally accessible to any third person because they can be locked or closed. But when it comes to the migrant labour who work on sites for construction of roads, buildings or dams or those who are staying in the agricultural lands for harvesting of sugarcane and other crops, the concept of home cannot have a traditional meaning. At such place the house may be just a bamboo tents if it is a rainy season but in other seasons these homes may be just open spaces. These labourers are not expected to carry their household in the preserve of a home enclosed by walls and roof or lockable rooms. But at the same time they carry their household and the family life in the open space as a family unit. It would not be fair to proceed in this case by keeping in mind the idea of “home” in the traditional meaning. The evidence suggests that the accused and deceased had been staying at the site for more than 2 weeks and were carrying out their household as husband and wife at the said open site. Even though they were sleeping in the open space in the night, they were sleeping close to each other and side by side. The injuries noted by the doctor on the deceased showed that her neck was strangulated on the left side and there was resistance. Both the left and right elbows had sustained injuries while she was resisting but being in deep sleep in the night it has to be inferred that there was no scope for her to shout or make noise. The possibility that the accused while strangulating the deceased resorted to smothering cannot be ruled out. If anyone else was involved in this crime, the defence has not come out with any circumstance in support of this theory. None of the witnesses have spoken anything about the enmity between him and his wife on one hand and someone else on the other. The treatment the accused was giving to the deceased is also very material and relevant in this behalf and the same becomes one more material circumstance against the accused.
10. Mahadeo Ghodke (P.W. 2) is the resident of Beed and he was knowing Rajendra (P.W. 4 – father of deceased)who was resident of village Mandavkhel. He stated that he had met Sunita on earlier occasion when she was in the house of Ramchandra (P.W. 5) along with her mother at village Manjarsumba. She had disclosed to him about the ill treatment given to her by her mother-in-law and husband as she could not bear a child even though she was married for about 6 years. She had also disclosed the threats of the accused and his mother regarding his proposed second marriage and therefore, this witness along with Ramchandra (P.W. 5) and Sunita had gone to village Mandavkhel for settlement. When they reached the house of the accused he and his mother were both present and his mother i.e. accused No. 2 refused to accept Sunita in the house as she could not beget a child. In his cross examination, questions were asked regarding the distance between Beed town and village Manjarsumba as well as Mandavkhel. It was tried to show that this witness had never visited village Manjarsumba and he stated that he had met the deceased in the said village about 15 days earlier to the date of incident and he had also visited village Mandavkhel about 2 or 3 months earlier and he had stayed there for a day along with Ramchandra (P.W. 5).
Rajendra (P.W. 4) is the father of the deceased. He stated in his deposition that the accused No. 1 used to regularly beat Sunita as she could not bear children and to accept her as his wife he used to make demands of household items like cot, bedding, watch and clothes etc. He stated that whenever the deceased went to the house for Diwali or Nagpanchami, she used to narrate about these incidents of ill-treatment. She had also expressed her fear that she would be killed by the accused and therefore she had refused to go to her in-laws house. He confirmed that when he could not meet the demand of the accused No. 1 during the Diwali festival prior or the incident, accused No. 1 did not take Sunita to her matrimonial home and therefore, he had sought the help of Ramchandra (P.W. 5) who is the husband of Rajendra’s wife’s sister and Mahadeo Ghodke (P.W. 2) who is the son-in-law of wife’s brother. He confirmed Mahadeo’s testimony regarding Sunita having been taken to her matrimonial home by Mahadeo and Ramchandra and the incident that accused No. 2 did not take Sunita in her house until she was persuaded by these 2 witnesses, He stated that on receiving the news about Sunita having been admitted in the hospital at Beed he reached the hospital, saw her in unconscious state and there were blood stains near ear, marks on her throat, knee as well as elbows. He confirmed to have lodged complaint at Exh. 18. The other witnesses as referred to in the earlier part of this judgment turned hostile because on 5-12-1995, there was a compromise that was brought about in favour of the accused and on account of these considerations Asrabai (P.W. 7) and Anita (P. W. 6) the mother and sister of the deceased turned hostile. Neverthless the circumstance of the accused entering into compromise with these witnesses is a material development enabling the Court to draw an inference regarding his complicity in the crime.
11. The following circumstances have thus been established by the prosecution:
a) Sunita could not have bear a child while she was married to accused No. 1 for about 6 years,
b) she was being harassed and ill-treated by accused Nos. 1 and 2 and there was a demand for money and other household items for her being retained in her matrimonial home as she could not bear a child,
c) she was in the company of accused No. 1 on the date of incident and for about 15 days prior thereto on the road construction site,
d) the road construction work was undertaken by contractor Jamal (P.W. 3).
e) On 30-11-1993 both of them were on duty and after their night meals had slept near each other. In the wee hours of the next day morning, accused No. 1 informed Dadahari that the deceased was unconscious and was to be taken to the hospital.
f) the accused No. 1 never disclosed that someone else had caused injuries to the deceased.
g) the neighbours had seen the deceased hitting her feet to the ground in the wee hours of 1-12-1993,
h) she was taken to the Beed hospital in a truck at about 8 a.m. on 1-12-1993. She was admitted in unconscious state. While under treatment, she breathed her last at about 9 p.m. on the same day and post mortem on her body was carried out on 2-12-1993 which showed that she died because of strangulation,
i) in the night of 30-11-1993 the accused No. 1 and the deceased were sleeping near each other. The accused No. 1 was often threatening the deceased that he would go in for a second marriage as the deceased could not bear a child for 6 years,
j) the accused No. 1 made a false statement that deceased Sunita was complaining of pain when she was woken up between 5 to 5.30 a.m. on 1-12-1993 while admitting and on the other hand that she was unconscious and
k) a compromise was arrived at on his behest with some of the key witnesses of the prosecution and more particularly the mother and sister of the deceased on 5-12-1996 i.e. immediately after complainant Rajendra was examined before the trial Court.
Thus the chain of circumstances in our considered opinion was complete in the instant case and this chain unerringly showed that it was the accused alone who had throttled the deceased and therefore she died within less than 20 hours or so. With a view to satisfactorily prove the commission of a crime on the basis of circumstantial evidence, the prosecution must satisfy : (1) the circumstances from which an inference of guilt is to be drawn must be cogently and firmly established; (2) the circumstances should have a tendency to unerringly point to the guilt towards the accused; and (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime is committed by the accused and none else (2004 AIR SCW 461). We also accept the findings of the trial Court that the charge under Section 498-A of the Code has also been duly established against both the accused. We do not accept the contentions of defence that the accused No. 1 was not called upon to discharge his burden under Section 106 of the Indian Evidence Act and the trial Court has rightly held that the author of the murder of Sunita was none other than the accused.
12. In the result this Appeal fails and the same is hereby dismissed. The order of conviction and sentence against both the accused as recorded by the learned first Additional Sessions Judge at Beed in Sessions Case No. 15/95 is hereby confirmed. Bail bond of accused No. 1 hereby stands cancelled. The accused No. 1 to surrender to bail forthwith so as to undergo the sentence. Record and Proceedings be forwarded to the trial Court forthwith. Accused to suffer the sentences concurrently and they shall be entitled for set off.