JUDGMENT
N.H. Patil, J.
1. The appellant Khandu Wagh was married to deceased Hansabai, who was daughter of P. W. 2 Kaduba prior to six months of her death. The appellant was offered Rs. 15000/- as dowry in the marriage, After marriage, Hansabai started residing with the appellant. Seven to eight days after the marriage, she visited her parents house along with her husband. The husband returned back after leaving her at her matrimonial house. During stay of Hansabai. She disclosed to her parents that she was being harassed by her mother-in-law and sister-in-law on the ground that she was not knowing household work. She even complained against her husband of harassment. After few days, the appellant again visited the house of the complainant to take Hansabai along with him. The appellant had stayed overnight with the parents of deceased in their house. Next day morning, the appellant started with Hansabai to proceed to his village.
2. The prosecution alleges that on the same day at about 5.30 p.m. the appellant and other three relations of the accused, who were charge-sheeted along with the appellant but, were acquitted by the trial Court, reached village Rohini, Taluka Chalisgaon, where the father of the deceased resided. At that time Kaduba father of the deceased was in his field. The appellant, along with his relations, came in a jeep. The jeep was stopped at a distance of 40 to 50 feet away from the residence of Kaduba. The dead body of Hansabai was lying in the jeep. The appellant and other persons left the dead body on the ground and they ran away from the place. P.W. 6 Karbhari made enquiries with the appellant and others and they informed him that as Hansabai was serious, they had come to leave her at that place. The Sarpanch and Police Patil of the village also arrived at the spot. The dead body was brought to Government Hospital at Chalisgaon. The doctor examined and declared her as dead. P.W. 2 Kaduba father of the deceased states that he had seen ligature mark around her neck and abrasions on the body of the deceased. He saw one abrasion on toe also. The face of the deceased had turned blackish. It is alleged that the prosecution witness No. 2 Kaduba thereafter, proceeded to lodge complaint with the police which is at Exh. 17. Crime was registered at Police Station, Chalisgaon at CR No. 84/1997. Police visited the spot of incident, recorded spot panchanama (Exh. 19). The statements of witnesses were also recorded. Some of the statements were recorded on 13-5-1997. The clothes of the deceased were seized under panchanama (Exh. 22). On 14-5-1997 the Investigating Officer visited the village Rohini and recorded panchanama (Exh. 21) of the place where the dead body was allegedly thrown by the appellant. Post mortem was conducted on the dead body. Viscera was preserved and sent to Chemical Analyser on 11-6-1997. Police filed charge sheet after completion of the investigation.
3. Initially, four accused persons were charge sheeted and tried by the Addl. Sessions Judge. By a judgment and order delivered in Sessions Case No. 104/1997 dated 20-12-1997, the original accused Nos. 2, 3 and 4 were acquitted of the offences punishable under Section 302 read with 34, 498-A read with 34 of IPC. The appellant was also acquitted of the offence punishable under Section 498-A of IPC. The appellant-original accused No. 1 was convicted for an offence punishable under Section 302 of Indian Penal Code and sentenced to suffer life imprisonment and fine of Rs. 2000/-, in default, rigorous imprisonment for one month. The appellant has preferred this appeal against the said judgment and order.
4. The prosecution has examined in all twelve witnesses. With the assistance of the learned counsel appearing for the parties, we have gone through the evidence of the witnesses and the relevant record and proceedings of the case.
EVIDENCE :
5. The prosecution examined Baliram P.W. 1 as Panch witness of inquest panchanama, who deposed that the face of the deceased hansabai had turned into bluish-blackish colour. There was abraison on her waist and her neck was having ligature mark of about 6″ length. Her mouth was swollen. Her tongue was protruding. Nothing much was elicited from this witness by the defence to discard his testimony. The inquest panchanama was exhibited which is at Exh. 15.
6. The Prosecution Witness No. 2 Kaduba is father of the deceased Hansabai. He has supported the prosecution case. He categorically stated that the appellant, along with other accused persons came in a jeep while he was in his field and kept the dead body of Hansabai there and ran away. He had witnessed ligature mark on the neck of Hansabai and abrasions on her waist and toe. He has dented the suggestion of the defence that when his daughter was brought back in the evening, she was unconscious. This witness further stated that before marriage, her daughter was not suffering from any ailment. The distance between the village of Kaduba P.W. 2 and the village of the appellant was stated to be about 30-35 kms. Waghali village is 4 kms. away from the village of the appellant. This witness further deposed that deceased Hansabai had proceeded along with the appellant to the Bus Stand. After getting down at village Javare, one has to go on foot to the village of appellant by crossing a distance of about 3-4 kms. On material particulars like arrival of appellant in a jeep along with dead body of the deceased Hansabai and immediately returning back, the evidence of this witness was not shattered by the defence.
7. P.W. 3 Daga Chaudhari is a panch of the spot panchanama. P.W. 4 Shantaram Bagul is also a panch in whose presence, panchanama of the place where Hansabai was lying, was recorded. Both these witnesses had deposed in the Court and nothing is found to discard their testimonies. P.W. 5 is Dr. Rajendra Bapurao Chavhan who conducted autopsy on the dead body of Hansabai. He received the dead body for conducting post-mortem on 13-5-1997. The dead body was brought from Chalisgaon Police Station. This witness had stated that the face of the deceased Hansabai had turned blackish and bluish. Her tongue was protruding and swelling was present around her eyes. Blood stained clot was oozing from her mouth. The doctor had noticed following external injuries on the dead body of Hansabai :
(1) Abrasion on greateo medially 3 cm x 2 cm x 2 cm.
(2) Contused abrasion at right illiceacord anteriorly 2 cm. in length x 5 cm in depth.
(3) Compression contused abrasion all around neck size 1 cm. all around neck.
8. The doctor opined that it was a asphyxical death due to strangulation. He further stated that on the basis of external injury No. 3, according to him, it was a case of throttling. The doctor opined that all the injuries were ante mortem injuries. In the cross-examination, the Medical Officer stated that in this case he had noticed vomiting but did not notice purging. Chalisgaon taluka is hot in the month of May between 10.30 a.m. to 5.30 p.m. Exposure to heat, exertion may result into sunstroke. The deceased was of average constitution and she had no previous history of any disease. He denied suggestion that it was a case of sunstroke. The cause of death, according to the post-mortem report was “death due to asphyxia due to strangulation”.
9. P.W. 6 Karbhari Sagale in his deposition stated that when he saw hansabai, she was dead. He further stated that when Kaduba lodged complaint, he was present in the police station. His evidence also supports the stand taken by the father of the deceased.
10. P.W. 8 is Narayan Sonwane, who stated in his examination that the deceased was kept by her husband on a cot in her father’s house and at that time, she was alive. P.W. 9 Gangubai states that she had seen the deceased following her husband while they were proceeding to the village of her husband. She states that the deceased was sick and she was carrying a bag in her hands. In her cross-examination, she states that due to heat in summer days, the deceased was looking tired. At Chalisgaon, the deceased had asked for some water.
11. P.W. 10 is Dr. Motiram Patil. In his evidence, he states that the appellant had visited his house between 2 to 2.30 p.m. on 12-5-1997 and told that his wife was feeling giddiness, she was uneasy and vomiting and therefore, he should accompany the appellant to his house at Chambhardi. This witness examined the deceased and found that he was not getting her pulse. Her eyes were dry. Though, he did not give any treatment to her, he informed that the deceased was serious and therefore, she should be shifted to Chalisgaon. In the cross-examination, this witness stated that when he saw the deceased Hansabai, she was not in a position to speak. She had vomiting and as he did not get her pulse, he did not record her blood pressure.
12. P.W. 11 is Bhausaheb Sonawane who is driver by occupation. He made a statement in the cross-examination that when Hansabai was taken to her father’s house, she was alive. This witness was driver on the vehicle in which Hansabai was brought to village Rohini.
SUBMISSIONS OF DEFENCE :
13. Mr. Phatak, learned counsel for the appellant states that the case is based on circumstantial evidence. The prosecution has failed to complete the chain of circumstances and, therefore, benefit must go to the defence. The conduct of the appellant absolves him from suspicion that he must be the author of the crime. The learned counsel placed reliance on the evidence of P.W. 8 Narayan Sonwane and P.W. 9 Gangubai to support the probability of the defence which the appellant had taken. The evidence of P.W. 5 Dr. Rajendra Chavhan, who noticed a ligature mark on the neck, according to the learned Counsel, could not be sole circumstance to attribute guilt to the appellant in absence of cogent and reliable evidence brought on record by the prosecution. The learned counsel further submitted that the charge was framed against the appellant and three acquitted accused. The charge for an offence punishable under Section 302 read with 34 of IPC was framed against all the four accused and in absence of sim-pliciter charge framed against the appellant the order of conviction and sentence awarded by the trial Court deserves to be set aside. According to the learned counsel for the appellant, some of the prosecution witnesses are interested one and, therefore, they are deposing against the appellant. The theory of deceased being strangulated by the appellant is developed after knowing fully well about the post-mortem report.
SUBMISSIONS OF PROSECUTION :
14. Shri Patil, learned A. P. P. supported the judgment and order delivered by the trial Court. The learned A.P.P. submitted that the evidence of Dr. Rajendra Chavhan (P.W. 5) who stated that the deceased died due to strangulation is established by the prosecution and is corroborated by the circumstantial evidence. The appellant was last seen in the company of the deceased. The deceased was in his custody as wife. There is evidence to this effect that the appellant and his wife were seen going to the village of the appellant. It was submitted that the theory of the defence is not probable. In view of the medical evidence, one cannot place reliance on the theory of the defence that the deceased Hansabai must have suffered sunstroke during the summer days and must have died due to it. The prosecution had made allegations against the appellant regarding harassment meted out to the deceased Hansabai. The conduct of the appellant is also blameworthy. The appellant had brought the dead body of the deceased to the village of the P.W. 2 Kaduba and by leaving the dead body-there, the appellant had left the place unmindful of the fact that the deceased was his wife. The prosecution had completed the chain of circumstances and the only inference that could be drawn is that it is the appellant alone who must have committed the offence.
APPRECIATION OF EVIDENCE :
15. From the totality of the evidence led by the prosecution, it could be gathered that the prosecution has led credible evidence and completed the chain of circumstantial evidence while pointing out accusation against the appellant. It has come on record that the deceased was in the company of the appellant as her husband. They had gone to the village of the husband and in the evening the appellant returned to the village of the complainant P.W. 2 Kaduba in a jeep along with the dead body of the deceased. The dead body, according to the prosecution, was kept in the field where P.W. 2 Kaduba was working. Though the defence had suggested that the body was brought to the house of the P.W. 2 Kaduba and the deceased was alive but, the said theory does not get credibility if we consider the attending facts and circumstances and the evidence of other witnesses who were present when the appellant arrived in the village, kept dead body and ran away. The evidence of P.W. 2 Kaduba is corroborated by the evidence of P.W. 6 Karbhari whose evidence cannot be discarded merely due to the fact that he is distant relation of P.W. 2 Kaduba. It was suggested by the defence that the ligature mark as noticed by the Medical Officer around neck of the deceased, was not a mark of strangulation and such a mark would not be there at all. The inquest panchanama (Exh. 15) was proved by P.W. 1 Baliram who states in his evidence that the deceased had a ligature mark of 6″ length and her mouth was swollen and her tongue was protruding outside. The appellant could not break this chain of circumstances by his explanation. There is nothing on record to disbelieve the version of Dr. Rajendra and the medical certificates. Minor discrepancies here and there would not affect the prosecution case. If in its entirety the evidence led by the prosecution is worth reliable and the prosecution is successful in establishing the chain of events leading to the guilt of the accused. The prosecution established that the deceased died due to homicidal death. The appellant failed to explain the injuries which were noticed on the person of the deceased.
Considering the nature of the, evidence led by the prosecution, we are of the view that the prosecution has completed the chain of circumstances which leads to the only conclusion that the appellant is the author of the crime.
16. The prosecution has proved vital circumstances establishing guilt against the appellant such as :
(a) homicidal death of the deceased was established;
(b) the deceased was in the company of the appellant prior to her death;
(c) there was no past history of the deceased having any ailment;
(d) the medical evidence shows that death of Hansabai was due to asphyxia due to strangulation;
(e) the conduct of the appellant was vulnerable who had carried the dead body of the deceased to the village of the complainant and kept the dead body in front of the complainant and hurriedly ran away along with others in a jeep;
(f) the explanation provided by the appellant and the defence taken, are not probable.
17. We may usefully refer to a reported judgment in the case of Joseph s/o Kooveli Poulo v. State of Kerala, . The three Judge Bench of the Apex Court, inter alia held thus (Para 10) :
“It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a find-ing of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in this case should be to find out whether the crime was committed by the appellant and the circumstances proved, form themselves into a complete chain unerringly pointing to the guilt of the appellant.”
18. The trial Court, therefore, had rightly appreciated the evidence on record and ar- rived at the conclusion of convicting and sentencing the appellant – original accused No. 1 for the offence punishable under Section 302 of I.P.C.
19. In our opinion, for the reasons stated above, the appeal deserves to be dismissed. We accordingly, dismiss the appeal.
The appellant was released on bail by this Court. His bail bonds stand cancelled. At this juncture, the learned Counsel for the appellant prayed for sufficient time for the appellant to surrender. We grant six weeks time from today to the appellant to surrender to his bail.
