JUDGMENT
Sinha, J.
1. The present appeal is preferred by the appellant/accused against the judgment and order passed by the Sessions Judge, Parbhani dated 16th March, 1993 in Sessions Trial No. 92 of 1991, whereby the learned Sessions Judge has convicted the appellant/accused for the offence punishable under Ss. 302 and 316 of the IPC and sentenced him to suffer R.I. for life for the offence punishable under S. 302 of the IPC and RI of seven years and fine of Rs. 1,000/-, in default to suffer further R.I. for three months for the offence punishable under S. 316 of the IPC. The substantive sentences are directed to run concurrently.
2. In order to appreciate the complicity of the accused in the crime in question, it is necessary for us to take into consideration some of the material facts, which was resulted in prosecution of the accused for the offences charged.
3. That, deceased Smt. Indubai was married to the accused about 7 to 8 years prior to the incident in question. It is the case of the prosecution that deceased Indubai was illtreated by her husband on account of the illicit relations between her husband and her husband’s sister in law Bharatibai. Smt. Indubai, on few occasions after her marriage and prior to the incident in question, has informed her parents about the same. It is the case of the prosecution that the accused was having illicit relations with Bharatibai for quite some time prior to the incident in question. Smt. Indubai was a mother of one male child, who at the relevant, time, was about 2 1/2 years old. The deceased Indubai was pregnant at the time of the incident and her pregnancy was 20 weeks old.
4. On the fateful day, deceased Indubai was sleeping in a room called Ladani along with her 2 1/2 years old child. The accused was sleeping adjacent to the said room i.e. Ladani. The house in question belongs to the accused. At about 4-30 a.m., accused heard the noise of crying of child, which was coming from the direction where deceased was sleeping with her child. Therefore, the accused went inside the room i.e. Ladani and found that deceased Indubai was lying on the ground and was feeling uneasy. The accused, therefore, informed his parents, who came on the scene of the offence thereafter.
5. It is the case of the prosecution that the accused went to the house of Village Quack (Vaidya) and informed him about the condition of his wife, who came on the scene of offence and examined deceased Smt. Indubai. He noticed some blackish marks on her neck.
6. The Police Patil of the village – P.W. 8 Shivaji received the information about 5.00 a.m. on the same day that the deceased Indubai committed suicide by consuming poison. He visited the house of the accused nd saw the dead body of deceased Indubai. According to him, the clothes of Indubai were smelling of poisonous substance like Rogour. He went to the police station and gave the report to the Police Station Officer P.W. 9 Kerba, who reduced the same in writing and registered the case of an accidental death.
7. The Investigating Officer i.e. P.W. 10 Navnath visited the house of the accused, he noticed scratches like marks on the neck and throat of the dead body of deceased Indubai. He sent the dead body to the Medical Officer for the purposes of conducting post mortem examination. After the post mortem examination, P.W. 1 Dr. Ramgopal opined that the cause of death was asphyxia due to throttling.
8. P.W. 10 i.e. Navnath, the Investigating Officer, therefore, lodged the first information report on the same day at about 8 a.m. and an offence punishable under S. 302 of the IPC was registered against the present appellant/accused. The Investigating Officer, thereafter, completed the remaining investigation and submitted the charge-sheet in the Court of the Judicial Magistrate First Class, Gangakhed. The charge for the offence under S. 302 of the IPC and under S. 316 of the IPC was framed against the appellant/accused, who pleaded not guilty and claimed to be tried. The defence of the accused is that of total denial. However, it is indirectly suggestive of murder committed by an unknown person.
9. We are aware that where there is no eye-witness to the murder and the case against the accused depends entirely on the circumstantial evidence, the standard of proof required to convict the accused on such evidence is that the circumstances relied upon must be fully established and the chain of evidence furnished by the circumstances should be such so as to leave no reasonable ground for a conclusion consistent with the innocence of the accused. In other words, in a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. In the background of the above settled legal position in law, we have to take into consideration and appreciate the prosecution evidence in the instant case.
10. In the present case, the prosecution has examined as many as ten prosecution witnesses in order to substantiate and prove the case of the prosecution against the accused. P.W. 3 and P.W. 4 i.e. Shamrao and Sitabai (father and mother of the deceased) were examined by the prosecution in order to prove the motive of the accused behind the crime in question. P.W. 1 Dr. Ramgopal was examined to prove the injuries in the post mortem report and also for the purposes of ascertaining the cause of death of the deceased. P.Ws. 6 and 7 Bapurao and Shrimant are the panch witnesses of the spot panchanama of the scene of offence. However, they have not supported the prosecution case and, therefore, they are declared hostile. P.W. 9 Kerba is the Police Station Officer, who has proved the oral information given by P.W. 8 Shivaji – Police Patil and has registered the case of an accidental death, on the basis of the said information. P.W. 10 Navnath is the Investigating Officer, who has lodged the first information report and conducted the entire investigation in the instant case.
11. In order to consider and appreciate the motive behind the crime, it is necessary first to carefully scrutinize the evidence of P.W. 3 Shamrao and P.W. 4 Sitabai, i.e. father and mother of the deceased Indubai.
12. It has come in the evidence of P.W. 3 shamrao that deceased Indubai often complained to him about beating and ill treatment meted out to her by her husband, the accused, on account of illicit relations of the accused with his own sister in law after few years of the marriage and before the incident in question. This witness has stated that his daughter specifically told him that she was beaten and illtreated on the instigation given by Bharatibai, with whom her husband had developed illicit relations. It has come in the evidence of this witness that after he received the information about the death of his daughter Indubai, he along with his wife immediately went to the house of the accused where he found the dead body of his daughter deceased Indubai. He noticed swelling on her neck and also some blackish marks on and around her neck. He has disclosed in his evidence that deceased Indubai was pregnant at the time of the incident in question.
13. While going though the cross-examination of this witness, we find that the prosecution case unfolded by this witness in his examination-in-chief in respect of the illtreatment and beating on account of illicit relations between her husband and his sister in law, has been re-affirmed. It has come in the cross-examination of this witness that his daughter Indubai told him about the illicit relations between the accused and his sister-in-law before 2 to 4 years prior to the incident in question. It is surprising as to why such admission is extracted from this witness in his cross-examination, which corroborates the prosecution case stated by this witness in his examination-in-chief.
14. While considering the evidence of P.W. 4 Sitabai, the mother of the deceased, we find that she has specifically stated in her examination-in-chief that her daughter deceased Indubai told her about the illtreatment given to her by her husband when she had come to her house at the time of the festival. It has come in her examination-in-chief, that her daughter deceased Indubai informed her that the beating and illtreatment given to her by the accused was on the instigation of smt. Bharatibai, the sister-in-law of the accused. The defence conducted the cross-examination of this witness in a slip short manner and while going through the same, we find, there is nothing fruitful brought out in the cross-examination, so as to discredit the testimony of this witness.
15. The learned counsel appearing for the accused vehemently argued that the prosecution, in the instant case, has not proved the motive behind the crime in question. According to the learned counsel, the evidence of these witnesses i.e. P.W. 3 and P.W. 4 does not establish the so-called motive entertained by the accused for committing the offences in question. The sum and substance of the submissions of the learned counsel appears to be that merely because the accused was having illicit relations with his sister-in-law, it cannot be inferred that he is the author of the injuries causes to the deceased, due to which Smt. Indubai died a homicidal death. The learned counsel further contended that the fact of illicit relations between the accused and his sister-in-law were known to the deceased for few years prior to the incident in question and, therefore, the prosecution could not establish the nexus between the so-called motive and the crime is question. Hence the evidence of these two witnesses ought to have been disbelieved by the learned lower Court on the point of motive and the same is liable to be rejected by this Court for the same reason.
16. After careful scrutiny of the evidence of these two witnesses i.e. P.W. 3 and P.W. 4, we have no hesitation to hold that the evidence of these witnesses is most natural and consistent. We do not find anything in the cross-examination of these witnesses so as to doubt the veracity of the testimonies of these two witnesses. There is nothing brought on record in the cross-examination of these witnesses so as to discredit the testimonies of these witnesses. In our opinion, the learned Lower Court was justified in believing the testimonies of these two witnesses. We find that the prosecution has succeeded in proving the motive against the accused for the purposes of committing the offence in question. It is difficult to agree with the submissions made by the learned counsel for the defence. We feel that no woman would tell to inform her parents or for that matter anybody else, about the illicit relations of her own husband with other woman unless they are true and intolerable to her. The woman is well aware that by doing so her dignity and prestige will be shattered and it will bring shame not only own self but also on her children and family.
17. We have no hesitation to hold that the prosecution did prove the motive against the accused for the purposes of committing the crime in question.
18. It is true that merely on the fact of proving motive, it will not be proper to award the conviction for the offences charged, unless there are other circumstances which have been brought on record and proved by the prosecution in order to complete the requisite chain of circumstances necessary to hold the accused guilty of the offences charged.
19. In the present case, we cannot ignore the fact that the deceased was a wife of the accused and at the relevant time she was staying in the house belonging to the appellant. It is also proved by the prosecution that on the date of the incident, accused and deceased were very much present in the house. According to the prosecution, the deceased was sleeping along with her child in the room called Ladani and accused was sleeping adjacent thereto. On the backdrop of these circumstances, we will test the probabilities of somebody else coming inside the house and committing murder of deceased Indubai on the touch-stone of probabilities. It is extremely difficult to hold that somebody else would dare to kill or for that matter commit murder of deceased Indubai when her husband was very much present and was sleeping adjacent to her. Secondly, nothing is brought on record either in the examination-in-chief or in the cross-examination of any of the witnesses so as to even suggest that Indubai was of a lose character and people of the village used to visit the house of the accused or was inimical to anybody in the village, who could possibly have some motive to commit her murder. Similarly, if we consider that the brother of the accused Indubai on account of illicit relations between his wife and the accused, in that case, he could have chosen to commit murder of his brother, the accused and not Indubai so as to give the sanction to continue the illicit relationship between his wife and the accused.
20. We find extremely difficult to accept the theory suggested by the learned counsel for the defence in the instant case and, therefore, the only probable cause for commission of the crime in question was to remove the hurdle, which was causing difficulty for the accused for continuing his illicit relations with his own sister-in-law. Considering the motive proved by the prosecution coupled with the above mentioned circumstances, we find that the prosecution has proved the case against the accused on account of motive along with the factors responsible for the crime in question.
21. In view of the above facts and circumstances, when we scrutinized and medical evidence, we find that it corroborates the prosecution case against the accused, which is an additional circumstances to complete the chain of events required to be proved by the prosecution.
22. The evidence of P.W. 1 Dr. Ramgopal discloses that he has conducted the post mortem examination of the deceased and noticed as many as six Injuries on the person of the deceased. Those are as follows :-
1. Contusion – 3 x 2 cms. over back of the left neck lower side, horizontal;
2. Contusions – 7 in numbers varying from 3 cms to 5 cms. x 1 to 2 cms. across the upper part of middle of the neck in front of the Thyroid cartilage and left cornu of Hyoid bone is fractured. Effused clotted blood present in the muscles of both sides of the neck. Bigger size of Bruise present to left side of the neck. Neck is swollen and engorged.
3. Bruise 2 x 1 cm. over chin of lower jaw, lower surface;
4. Abrasion – 3 x 1/2 cm. over left clavicle lateral side;
5. Contusion 3 x 1 cm. over right clavicle at middle part; and
6. Contusion – 1 x 1/2 cm. over right knee, upper and front side.
According to P.W. 1 Dr. Ramgopal, injury No. 2 is grievous and dangerous to life. The cause of death, according to P.W. 1, is asphyxia due to throttling.
23. The learned counsel for the defence contended that if the death if caused due to throttling, certain other symptoms must appear on the person of the deceased, which were absent in the instant case and, therefore, according to the learned counsel, the opinion in respect of the cause of death given by the Doctor is not free from doubt.
24. We have carefully gone through the cross-examination of P.W. 1 Dr. Ramgopal and we find that no such question or suggestion was given to the Doctor, who could have given some probable answered to those questions. However, in absence of that, it is difficult for us to accept the contention raised by the learned counsel for the defence in respect of the same.
25. The learned counsel for the defence further contended that the investigation is not proper and same suffers from suspicion. According to him, it was necessary for the prosecution to eliminate the fact of death by poisoning in the instant case, since the clothes of the deceased Indubai were smelling of Rogour (insecticide) and there is a discovery under S. 27 of the Evidence Act by the accused of the bottle containing Rogour.
26. In the instant case, defence does not dispute that deceased Indubai died homicidal death. The defence never suggested that the deceased died due to consuming poison. On the contrary, defence is suggestive of somebody else responsible for the act of murder of the deceased. In the circumstances of the present case, we find as to how the prosecution evidence particularly that of P.W. 1 Dr. Ramgopal can be brushed aside merely because the theory of poisoning as suggested by the counsel for the defence, for the first time before us, has not been ruled out by the prosecution. It is pertinent to note that the accused discovered bottle of Rogour from the earthen pot which was inside the cupboard fitted in the well of the house of the accused. It is extremely difficult ot appreciate that the decease Indubai, after consuming poison would varry the bottle containing Rogour and would neatly keep it in the earthen pot which was kept in the cupboard. If she has consumed poison like Rogour, the bottle containing Rogour would have been found lying on the spot near the dead body of the deceased. Therefore, according to us, discovery of bottle containing Rogour by the accused is of no consequence and we fail to understand as to how, in the circumstances of the case, it can affect the prosecution evidence. Hence, there is nor merit in the contention raised by the defence in this regard.
27. The learned counsel for the defence contended that since P.W. 6 and P.W. 7 turned hostile, their evidence does not support prosecution and, therefore, the spot panchnama cannot be said to be proved by the prosecution in the instant case. It is, however, true that P.W. 6 and P.W. 7 i.e. Bapurao and Shrimant are turned hostile. However, we cannot forget that the deceased was the wife of the accused and at the relevant time, she was staying in the house of the accused, which according to us is a must natural circumstance and, therefore, in the instant case, the contention raised by the Counsel for the defence does not assume importance so as to discredit the prosecution evidence on this count.
28. The learned counsel for the defence vehemently argued that the first information report Ex. 28 lodged by Navnath, the Investigating Officer, cannot be said to be a first information report contemplated under S. 154 of the code of Criminal Procedure. According to him, the first information in point of time was lodged by P.W. 8 Shivaji, on the basis of which P.W. 9 Kerba, the Police Station Officer has registered the case of an accidental death. This, according to the learned counsel for the defence, should have been considered as the first information report in the instant case.
29. We have scrutinized the evidence of P.W. 10 navnath, the Investigating Officer as well as P.W. 9 Kerba. In the evidence of the P.W. 10 it has come that this witness, on the basis of the accidental death registered by P.W. 9, went to the scene of offence and sent the dead body of the deceased in the hospital for the purposes of post mortem examination. It has come in the evidence of this witness that when he received the certificate issued by the Doctor after the post mortem examination, in which the caused of death of deceased was asphyxia due to throttling, he registered C.R. No. 183 of 1990 for the offence punishable under S. 302 of the IPC against the accused vide Exh. 28.
30. We do not find any legal infirmity in the evidence of this witness for discarding the first information report lodged by this witness in the instance case, whereas the evidence of P.W. 9 only shows that P.W. 8 Shivaji gave him a oral report that Indubai committed suicide and, therefore, he registered the case of an accidental death. Firstly, it is surprising as to how P.W. 8 Shivaji came to the conclusion that deceased Indubai has committed suicide. He has not disclosed the source as to who has given him the said information and the report lodged by this witness was a crying one and does not disclose any cognizable offence so as to set investigation in motion for the offence punishable under S. 302 of the IPC.
31. We are unable to agree with the contention raised by the Counsel for the defence as it does not have any force.
32. In the present case, as already observed by us, we have no hesitation to hold that the circumstances brought on record and proved by the prosecution are sufficient to prove the chain of circumstances to reach the positive conclusion that the author of the injuries caused to the deceased in nobody else but the accused alone and motive for causing such bodily injuries, is his own illicit relation with his own sister-in-law, which he could not have continued unless his wife Smt. Indubai is eliminated. Hence with the definite intention to kill, the accused has caused injuries on the neck of the deceased by throttling her, which has resulted in her death. We are also of a clear view that the accused alone is also responsible to cause the other injuries found on the person of the deceased Indubai. The medical evidence has corroborated the prosecution completely, which supports the thoery of death due to throttling. Other circumstances such as, accused and deceased on the date of the incident were present in the house of the accused which is quite separate from the other rooms in which the other members of the family of the accused were residing at the time of the offence the accused and deceased slept adjacent to each other, support the theory of the prosecution. Theory of committing suicide by deceased is nobody’s case before the Lower Court and the defence does not dispute that Smt. Indubai died a homicidal death. Similarly, the theory of death due to accident has been completely ruled out by the prosecution. Coupled with the strong motive to kill smt. Indubai, we find that the appreciation done and finding arrived at by the Learned Lower Court are not only just and proper but the same are sustainable in law with regard to the conviction under S. 302 as well as S. 316 of the IPC.
33. We, therefore, finally conclude and hold that various links, which have been satisfactorily made out and proved by the prosecution, point that the accused alone is an assailant with reasonable definiteness and in proximity to the deceased as regards time and situation. Hence, the evidence adduced by the prosecution satisfies the standards requisite for conviction on the basis of the circumstantial evidence.
34. For the reasons stated above, the present appeal is dismissed.
35. Appeal dismissed.