1
srk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO. 446 OF 1992
(For enhancement of sentence)
The State of Maharashtra .. Appellant
Vs.
Baban Kisan Kulvade .. Respondent
(Org.Accd.No.1)
ig WITH
CRIMINAL APPEAL NO. 472 OF 1992
(Against acquittal)
The State of Maharashtra .. Appellant
Vs.
1. Baban Kisan Kulvade
2. Smt. Shantibai Shrichand Kshyatriya .. Respondents
(Org.Accd.Nos.
1 and 2)
Mrs. P. P. Shinde, APP for Appellant-State in both the Appeals.
Mr. Niranjan Mundargi for respondent in Cri. Appeal No.446/92
and for respondent no.1 in Cri. Appeal No. 472/92.
Mr. Dilip Bodake for respondent no.2 in Cri. Appeal NO.472/92.
CORAM: B.H.MARLAPALLE &
MRS. MRIDULA BHATKAR, JJ.
Reserved on : May 07, 2010
Pronounced on: June 15, 2010
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JUDGMENT (PER B.H.MARLAPALLE,J.)
1. Both these appeals, filed by the State Government, are
directed against the judgment and order dated 20/5/1992
rendered by the learned 6th Additional Sessions Judge, Thane in
Sessions Case No. 483 of 1991. In the said case, three accused
were put on trial for the offences punishable under Sections
302, 498-A and 201 read with Section 34 of IPC and all the three
accused came to be acquitted for the offences punishable under
Sections 302 and 201 read with Section 34 of IPC. Accused No.1
has been convicted for the offence punishable under Section
498-A of IPC and sentenced to suffer RI for one year with a fine
of Rs.1000/- in default RI for three months and accused nos.2
and 3 have been acquitted from the said charge. Criminal
Appeal No. 442 of 1992 has been filed by the State for
enhancement of sentence awarded to accused no.1 on account
of his conviction under Section 498-A of IPC. Whereas Criminal
Appeal No. 472 of 1992 has been filed challenging the acquittal
of accused nos.1 and 2 for the offences punishable under
Sections 302 and 201 each read with Section 34 of IPC.
2. As per the prosecution case, accused no.1 is the son of
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accused no.3 and he, while working in a factory near Thane, was
residing in the house of accused no.2 at the relevant time as a
paying guest and the son of accused no.2 was also working with
accused no.1 and thus they were friends. Soluchana, the
daughter of Laxman Gangaram Gholap, was married to accused
no.1 on 29/5/1989. After marriage, she stayed for about 25
days with accused no.1 in the house of accused no.2 at Boisar
and thereafter for about 6-7 months she stayed with her in-laws
at village Udapur, Taluka – Junnar, District – Pune. She wanted to
join her husband’s company, but the accused no.1, under the
pretext that there was no residential accommodation and
cooking utensils etc., retained her with his parents. She got fed
up and went to her maternal home at village Rohokadi, Taluka –
Junnar, District – Pune and she stayed with her parents for about
one year. During the said stay of one year, she had informed
her parents that accused no.1 was demanding Rs.20,000/- for
acquiring a residential accommodation and he expected the said
amount to be paid by her father, but his financial position did
not permit him to do so. Just one week prior to the date of the
incident, PW 2 – Tukaram Gholap, the brother of Sulochana, had
taken her to Boisar and he stayed overnight with accused no.1
in the house of accused no.2 and returned to his village. On
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20/6/1991 between 9.30 a.m. to 11 a.m., when there was no
one in the house of accused no.2, Soluchana was found dead
with burn injuries. Accused nos.1 and 2, along with the
daughter-in-law of accused no.2, had gone to a doctor and when
they returned around 12.15 p.m., the house was locked from
inside and could not be opened. Accused no.1 peeped through
the window and saw some smoke smell coming from inside the
house. The door was forcibly opened and when the accused
nos.1 and 2 went inside, they noticed that Sulochana was lying
dead in the toilet block and her entire body was burnt. Accused
no.1, therefore, went to the police station at Boisar and lodged a
report, which was registered as accidental death (Exh. 23). The
police arrived at the scene, drew the inquest panchanama (Exh.
12) and spot panchanama (Exh.13). The dead body was
forwarded for post mortem and P.M. report at Exh. 19 was
received on 21/6/1991. On 21/6/2991 Otur Police Station
informed PW 1 – Laxman Gangaram Gholap that his sister
Soluchana was dead as per the information received from the
Boisar Police Station and, therefore, PW 1 reached Boisar and
subsequently he was taken to Kelwa Mahim and the dead body
of Sulochana was handed over to him. On 22/6/1991, PW 1
lodged the FIR (Exh. 9) at Boisar Police Station and C.R. No. I-68
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of 1991 came to be registered for the offences punishable under
Sections 302, 498-A and 201 each read with Section 34 of IPC
against the accused.
3. During the course of investigation, accused nos.1
and 2 were arrested on 22/6/1991 and accused no.3 was
arrested on 23/6/1991 and subsequently they were released on
bail. On completion of investigation, the charge-sheet came to
be filed and the case was committed on 30/8/1991 to the
Sessions Court by the learned JMFC. Charge was framed on
31/1/1992. The prosecution examined in all six witnesses. Dr.
Dinkar Gavit – PW 3 was the Medical Officer, who had conducted
the post mortem and signed P.M. notes at Exh. 19. PW 4 –
Jagjitsingh Rudrasingh and PW 5 – Harischandra Valmiki who
were the neighbours, turned hostile. PW 6 – Dinkar Bagal was
the PSI attached to the Boisar Police Station and was the
Investigating Officer. C.A. reports at Exhs.27 and 28 were also
placed on record. Defence admitted the inquest panchanama at
Exh.12, spot panchanama at Exh.13 and the panchanama for
the recovery of clothes and articles from the dead body, Exh.14.
Statement under Section 313 of Cr.P.C. of all the accused was
recorded and accused nos.1 and 2 claimed that they were
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falsely implicated, whereas accused no.3, while denying his
involvement, stated that at the relevant time he was in his
house at village Udapur, Taluka – Junnar, District – Pune.
4. The learned Additional Sessions Judge held that Sulochana
died a homicidal death and accused no.1 had subjected her to
cruelty and the prosecution failed to prove that all the accused
or any one of them had committed the murder of Sulochana on
20/6/1991 between 9.30 to 11 a.m. On the charge of causing
cruelty to the deceased, the trial Court held that the evidence
on record proved the prosecution case against accused no.1, of
causing mental cruelty to the deceased. Though the marriage
of the accused no.1 with the deceased was performed on
29/5/1989 and she died a homicidal death on 20/6/1991, during
the said period of more than two years the accused no.1 had
cohabited with the deceased hardly for one month.
Immediately after the marriage the deceased stayed with
accused no.1 at Bhoisar for about 25 days and thereafter she
was sent by accused no.1 to stay with his parents at village
Udapur for about 7-8 months. Thereafter the deceased stayed
with her parents for more than one year and was brought back
to Bhoisar to join the accused no.1 just six days prior to the date
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of incident. As per the trial Court all these circumstances went
to show that accused no.1 after his marriage with the deceased
avoided her company and kept her in the house of his or her
parents without any excuse and these circumstances
established that the deceased was treated with mental cruelty
by accused no.1 and thus the offence under Section 498-A of
IPC was proved against him.
5. As per PW 3 – Dr. Dinkar Gavit who had conducted the
post mortem on 21/6/1991 at about 12.30 p.m. and signed the
PM notes at Exhibit 19, on the dead body of Sulochana the
following external injuries were noted:
(1) Contusion around mouth anteriorly and anterior
aspect of neck size was not made out as the injury was
diffused.
(2) Abrasion over the dorsal aspect of both legs and
toes.
(3) Abrasions and contusion over the perineal region.
The injury was diffused.
(4) Body as a whose was burnt and charred at various
sides.
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He further stated that injury nos.1 to 3 were ante mortem
and the burn injuries were post mortem for the following
reasons:
(a) There were no lines of redness
(b) No vesicles.
(c) No signs of inflammation.
(d) Soot was absent in trachea.
The doctor further stated that he had noticed the
following internal injuries:
1. Diffused hemorrages in chest muscles and no fracture of
bone. Larynx and trachea were congested. Even lungs
were congested.
In the opinion of the doctor the cause of death was
“cardio-respiratory failure due to asphyxia due to suffocation”.
He further stated there was a red sarree cotton piece gagged in
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the mouth of the dead body and the outer portion of the said
cotton piece was burnt while the inner part was stained with
blood and it was in the mouth when the dead body was brought
to the hospital for post mortem. The cloth piece was round like
a ball and half portion was inside whereas the remaining half
portion was protruding outside. The doctor further clarified that
the injuries which were ante mortem were possible by pressing
the neck of a person by hand and they were also possible even
if the neck was pressed by means of a rope or cloth.
ig The
blockage of air was possible by pressing the neck either by
hand, rope or piece of cloth. The suffocation was possible by
pressing the mouth in such a manner that the person cannot
exhale or inhale the air and only a piece of cloth in the mouth
will not cause suffocation as the nose is open and if the nose is
closed with the piece of cloth in the mouth, suffocation could be
caused. In his cross-examination he stated that the entire body
was burnt but he could not state as to which parts of the body
were charred. He denied the suggestion that the contusion
marks will disappear in the case of burnt body and further
suggested that such marks could disappear if the body was
charred. He also stated that it was not possible to say whether
the person was strangulated either by hand, rope or cloth due to
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diffusion and the process of diffusion would start immediately.
He also clarified that major portion of the body was not charred
and he could not opine regarding the riger mortis due to
charring of the dead body. In the post-mortem report at Exhibit
19 the notings made supported the oral depositions of PW 3. It
went to show that the stomach of the deceased was empty and
her mouth was gagged with cotton sarree pieces but teeth were
in tact. This medical evidence which went unchallenged clearly
proved that Sulochanabai was first killed by gagging her mouth
and suffocation by strangulation or pressing of her neck and
subsequently she was set ablaze to show that she committed
suicide. The burn injuries were post mortem and, therefore, it
would be necessary to examine as to who caused the homicidal
death of Sulochanabai, while she was cohabiting with accused
no.1 and in the house of accused no.2.
6. As per the trial Court the prosecution failed to prove its
case that either accused no.1 or accused no.2 or both of them,
in furtherance of their common intention, committed the murder
of Sulochanabai on 20/6/1991 and the reasons set out by the
trial Court are as under:
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“41. It is true that accused no.1 was staying in the
house of accused no.2 as a paying guest for a long
time. Even though there must be cogent and
convincing evidence that they both were having illicit
relations the mere suspicion is not sufficient for that
purpose as it does not take the place of proof.
42. It is material inference that she was killed
because the deceased was not paying the cash or
giving the gold ornaments demanded by him. There is
a substance that there was a demand from the side of
the accused. However, the mere reason is not
sufficient to hold that she was killed for the purpose.
Similarly, merely a motive without further evidence is
of no much use.
43. The other circumstance is that both the accused
no.1 and 2 were staying in the same house the
deceased was found in the burnt condition. The
deceased recently went to their place and therefore,
there was no reason for anyone else to cause her
death. It is also not the case that she was killed for
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any other reason by the outsiders. Therefore, it is
submitted that the only persons that is the accused
no.1 and 2 would be benefited by her death, so they
killed her in their house.
44. It is clear from the medical evidence that she
was strangulated and the cloth was gagged in her
mouth and in order to screen the offence her body was
burnt. There is also substance of truth that there was
no reason for any outsider to cause her death.
However, the said suspicion is not supported by any
convincing evidence. It is well-settled that suspicion
however, it may be strong does not take the place of
proof.
46. It is true that reasonable inference therefore,
can be drawn that her death might have been caused
by the accused but in order to convict the accused the
circumstances must be of such nature which leads to
irresistible conclusion of the guilt of the accused.
There is a long distance to travel between `may’ and
`must’. It is difficult to convict the accused on mere
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inference and surmises.
48. The death of Sulochana is brutal and the efforts
were made to show that it is a suicide however for
want of sufficient and cogent evidence, my hands are
ties and, therefore, I have no option but to give the
benefit of doubt to the accused. The point is,
therefore, answered in the negative.”
7.
Having regard to the law laid down by the Supreme Court
in the case of Tota Singh & anr. Vs. State of Punjab [JT 1987(2)
SC 20], Ramesh Babulal Doshi Vs. State of Gujarat [JT 1996(6)
SC 79], Hari Ram & ors. Vs. State of Rajasthan [JT 2000 (6) SC
254], and Chandrappa & ors Vs. State of Karnataka [(2007) 4
SCC 415] regarding the powers of the appellate court while
dealing with an appeal against the order of acquittal passed by
the trial Court, the following general principles emerge:
(1) An appellate Court has full power to review, re-
appreciate and reconsider the evidence on which the
order of acquittal is founded.
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(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before
it may reach its own conclusion, both on questions of
fact and law.
(3) Various expressions, such as, “substantial and
compelling reasons”, “good and sufficient grounds”,
“very strong circumstances”, “distorted conclusions”,
“glaring mistakes”, etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double presumption
in favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental
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principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal
recorded by the trial court.
(6) While reappreciating the evidence the rule of
prudence requires that the High Court should give
proper weight and consideration to the views of the
trial Judge but if the judgment of the Sessions Judge
was absolutely perverse, legally erroneous and based
on wrong appreciation of evidence, then it would be
just and proper for the High Court to reverse the
judgment of acquittal. Mere fact that the appellate
court is inclined on reappreciation of evidence to
reach a conclusion which is at variance with the one
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recorded in the order of acquittal passed by the court
below, will not constitute a valid and sufficient ground
for setting aside the acquittal.
8. In the instant case the culpability of accused nos.1 and 2
is required to be considered on the backdrop of the fact that he
approached the Bhoisar Police Station on the date of the
incident and gave the first information in writing on the basis of
which ADR No.8 of 1991 came to be registered under Section
174 of Cr.P.C. at about 4.30 p.m. (Exhibit 23). He stated in the
said written application that at about 11 a.m. he along with
accused no.2 and the daughter-in-law of accused no.2 had gone
to Avanti hospital and when all the three returned home at
about 12.15 p.m., the house was noted to be locked from inside,
there was no response from his wife, he tore off the plastic
paper enclosing the window and noticed that the smell of
human body burning was emanating from inside the house. He
broke open the door and went inside, saw that his wife was lying
dead in the toilet block near the kitchen in burnt conditions. He
was not aware as to how she sustained the burn injuries and
had no suspicion on any other third person causing burn injuries
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to his wife. Thus Exhibit 23 takes a plea of alibi contending that
between 11 a.m. to 12.15 p.m. on 20/6/1991 while the deceased
was alone in the house, she sustained burn injuries and was
found dead in the toilet block and he had no suspicion against
anybody. The medical report on the other hand indicated that
the burn injuries were post mortem and in fact Sulochana died
due to cardio respiratory failure to due asphyxia caused by
suffocation and some injuries were noted around her neck,
mouth, legs and toes and these injuries were ante mortem.
9. In the case of Swapan Patra & ors. Vs. State of West
Bengal [(1999) 9 SCC 242] the Supreme Court held that in a
case of circumstantial evidence when the accused offers an
explanation and that explanation is not found to be true, then
the same offers an additional link in the chain of circumstances.
Similarly in the case of State of Maharashtra Vs. Suresh [JT
1999 (9) SC 513], the Supreme Court reiterated the same
principle and held that a false answer offered by the accused
when his attention was drawn to a circumstance, render that
circumstance capable of inculpating him and in such a situation
false answer can also be counted as providing a missing link for
completing the chain. In the case of Anthony D’Souza and ors.
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Vs. State of Karnataka [JT 2002 (9) SC 257] a three-Judge
Bench of the Supreme Court held that in a case of circumstantial
evidence where an accused offers false answer in his
examination under Section 313 of Cr.P.C. against the established
facts, that can be counted as providing a missing link for
completing the chain. In the case of State of Rajasthan v. Kashi
Ram [AIR 2007 SC 144], the Supreme Court stated as under,
“… The provisions of Section 106 of the Evidence Act
itself are unambiguous and categoric in laying down
that when any fact is especially within the knowledge
of a person, the burden of proving that fact is upon
him. Thus, if a person is last seen with the deceased,
he must offer an explanation as to how and when he
parted company. He must furnish an explanation
which appears to the Court to be probable and
satisfactory. If he does so he must be held to have
discharged his burden. If he fails to offer an
explanation on the basis of facts within his special
knowledge, he fails to discharge the burden cast upon
him by Section 106 of the Evidence Act. In a case
resting on circumstantial evidence if the accused fails
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to offer a reasonable explanation in discharge of the
burden placed on him, that itself provides an
additional link in the chain of circumstances proved
against him. Section 106 does not shift the burden of
proof in a criminal trial, which is always upon the
prosecution. It lays down the rule that when the
accused does not throw any light upon the facts which
are specially within his knowledge and which could
not support any theory or hypothesis compatible with
his innocence, the Court can consider his failure to
adduce any explanation, as an additional link which
completes the chain.”
10. The prosecution had relied upon the evidence of PW 4 –
Jagjitsingh and PW 5 – Harishchandra Valmiki who were the
neighbours and both of them turned hostile. PW 6 – Dinkar
Bagal was the IO and he stated before the trail Court that on
20/6/1991 the accused no.1 gave information to the police
station regarding the death of his wife and it was recorded at
Exhibit 23 by Shri Pardeshi, PSI and thereafter he recorded the
complaint of PW 1 – Laxman Gangaram Gholap (Exhibit 9) on
22/6/1991 and based on the same C.R.No.I-68/91 came to be
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registered for the offences punishable under Section 302 and
Section 498-A read with Section 34 of IPC. As per the CA report
at Exhibit 27 the partly burnt cloth pieces of the deceased had
tested positive for kerosene residues and they were stained with
blood group “A”. The inquest panchanama at Exhibit 12 showed
that it was drawn between 2.45 to 3.45 p.m. on 20/6/1991 in the
house of accused no.2. The dead body was found in the toilet
block located on the western side of the kitchen in the house of
accused no.2. The deceased was in her menses and had
discharged stool. The blood stains were noticed on the walls as
well as the floor area and the mouth of the deceased was
gagged by cotton pieces (round bundle like a ball). The spot
panchanama at Exhibit 13 indicated that the toilet block was of
6 ft x 4 ft. 9 inches (outer side) and 3 ft. 6 inches x 4 ft. from
inside. The house of accused no.2 has four rooms and it has a
rear door as well. Obviously the accused no.1 and the deceased
were occupying one of these four rooms. The water pipe was
also lying on the floor and it had black spots. The roof of the
toilet block had black smoke marks and it did not appear that it
had any window. The window near the main door was closed by
a plastic paper as has been stated by accused no.1 in his written
information at Exhibit 23.
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The combined reading of Exhibits 12, 13 and 23 went to
show that there was an additional door from the rear side of the
house, there was no scope for the smoke or smell to be seen or
felt outside the house and the burn injuries did not appear to be
deep and fresh. Though the percentage of burn injuries has not
been brought on record through the medical evidence, PW 3
clearly stated that the entire body was not charred. The
evidence of PW 4 and PW 5 proved that accused no.1 was
staying in the house of accused no.2 as the paying guest and he
was seen along with accused no.2 trying to break open the main
door of the house which was bolted from inside. If the house
was bolted from inside, who was the intruder / a third person
who entered the house of accused no.2 between 11 a.m. to
12.15 p.m. either from the front door or the rear door and killed
Sulochana by gagging her mouth and causing the suffocation
and then poured kerosene on her body and set her on fire and
ran away? None of the two doors was seen open. As per the
statement of accused no.1 in Exhibit 23, he got up at 7.45 a.m.,
had his bath and was in the house till 11 a.m. He left the house
at 11 a.m. along with accused no.2 and her daughter-in-law,
visited Avanti hospital and returned home at 12.15 p.m. None
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from Avanti hospital has been examined by the defence, nor
Sunita, the daughter-in-law of accused no.2 was examined by
the defence. By lodging the written application at Exhibit 23
accused no.1 had taken a specific stand that the inmates of the
house were out from 11 a.m. and when they returned at 12.15
p.m., they found Sulochana dead with burn injuries. Thus the
accused wanted to point out that Sulochana had died after 11
a.m. but before 12.15 p.m. Thus the following incriminating
circumstances would go against accused no.1:
(a) Though he was married for more than two years,
he allowed his wife to stay with him intermittently for
a total period of only one month. After marriage the
deceased stayed with accused no.1 in the house of
accused no.2 for about 25 days. She was thereafter
sent to stay with the parents of accused no.1 at his
village for about 6 to 7 months and thereafter she
went and stayed with her parents. Just six days before
the incident she was brought to Bhoisar by her bother.
(b) Admittedly, accused no.1 was in the house upto
11 a.m.
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(c) Accused no.1, and accused no.2 along with
Sunita allegedly visited Avanti hospital between 11
a.m. to 12.00 noon and returned at 12.15 p.m. to the
house. However, there was no evidence adduced by
the accused to prove that they were out of the house
between 11 a.m. to 12.15 p.m.
(d) The house was locked from inside and accused
no.1 tried to open it by breaking the inner latch. He
removed the plastic paper of the window and noticed
from outside that smoke of human body being burnt
was emanating from inside the house. No efforts were
made to enter the house from the rear door. No
evidence to show that the rear door was also bolted /
locked from inside.
(e) No intimation was given to the parents of the
deceased regarding her unnatural death and it was
only at 4 p.m. on 21/6/1991 that a message was
received by PW 1 from Ottur police station that
Sulochana was dead on 20/6/1991.
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(f) Even after the post-mortem was performed at
about 12.30 p.m. on 21/6/1991, the accused did not
take possession of the dead body of his wife.
(g) Sulochana was shown to have died on account
of burn injuries but in fact she was killed by gagging
her mouth with cotton pieces and by causing
suffocation closing her nose and thereafter kerosene
was poured on her body and the dead body was set on
fire. It was not a suicidal death. Accused no.1 had
filed report with the police (Exhibit 23) on 20/6/1991
and this was done deliberately.
(h) Neither the son nor the daughter-in-law of
accused no.2 was examined by the defence to prove
that the deceased was alone in the house and
someone else had entered the house and killed her.
On the contrary accused no.1 in his written report at
Exhibit 23, had clearly stated that he did not suspect
anybody who could have caused the death of his wife.
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(i) The deceased had come to stay with her
husband after about two years of her marriage and
just before six days. She could hardly be known to
any outsider so as to develop any animosity against
her or any motive to kill her in broad day light and
subsequently to set her on fire so as to screen the
offence punishable under Section 302 of IPC. In these
circumstances, the possibility of an outsider causing
the murder of Sulochana were ruled out.
(j) The accused had purportedly seen Sulochana
dead at about 12.45 p.m. but the accused no.1 had
lodged his report at Exhibit 23 at about 4 p.m. on
20/6/1991. Thus the police were not on the scene for
about four hours after the incident and as per the
evidence of PW 6, the investigation was set in motion
only after PW 1 lodged his complaint and the FIR was
registered at Exhibit 19 on 22/6/1991.
(k) Though the post mortem was conducted by PW
3 between 12.30 to 1.30 p.m. on 21/6/1991, the police
did not take any steps to cause investigation in the
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homicidal death of Sulochana until PW 1 approached
the Bhoisar police station on 22/6/1991 and his
complaint was recorded.
11. During the course of hearing of this appeal all the above
circumstances were put to Shri Mundargi, the learned counsel
for the accused and in reply thereto he submitted that though
the house of accused no.2 had one more door on the rear side,
the spot panchanama at Exhibit 13 did not indicate whether the
said door was open and, therefore, merely on the basis of the
presumptions it cannot be concluded that the accused had
made their exit of the house from the rear side door after
causing murder of Sulochana. As per Shri Mundargi it was for
the prosecution to complete the chain of circumstances which
would unerringly point out the guilt of the accused and the
burden of proving the circumstances under which Sulochana
was murdered could not be shifted on the accused. He urged
that the order passed by the trial Court acquitting the accused
from the offences punishable under Sections 302 and 201 of IPC
was required to be confirmed.
12. The trial Court noted that Sulochana was strangulated and
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her mouth was gagged and in order to screen the offence her
body was set on fire. It also found substance of truth that there
was no outside element to cause Sulochana’s death.
Reasonable inference could be drawn that her death might have
been caused by accused but in order to convict them, the
circumstances must be of such a nature which would lead to an
irresistible conclusion of the guilt of the accused. The trial Court
also held that Sulochana was murdered brutally and subsequent
efforts were made to show that it was a suicide. As per the trial
Court, mere suspicion pointing towards the guilt of the accused
was not sufficient to hold that either of them or both of them
had caused the murder of Sulochana. In our considered opinion,
the trial Court failed to take into consideration the above
mentioned incriminating circumstances against the accused and
more particularly accused no.1 in causing the murder of his
wife. The trial Court, having held the accused no.1 guilty of the
offence punishable under Section 498-A of IPC, did not scrutinise
the prosecution for an offence punishable under Section 304-B
of IPC, against accused no.1, though such a charge was not
framed by it. The investigation was very tardy and so was the
trial conducted by the prosecution but these deficiencies cannot
be allowed to make the criminal justice a casualty. In the case
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of State of Karnataka Vs. K. Yarappa Reddy [(1999) 8 SCC 715]
the Supreme Court held,
“…even if the investigation is illegal or even
suspicious the rest of the evidence must be scrutinized
independently of the impact of it. Otherwise the
criminal trial will plummet to the level of the
investigating officer’s ruling the roost. … Criminal
justice should not be made a casualty for the wrongs
committed by the investigating officers in the case. In
other words, if the court is convinced that the
testimony of a witness to the occurrence is true the
court is free to act on it albeit the investigating
officer’s suspicious role in the case.”
13. The medical evidence as came before the trial Court
through PW 3 and the post mortem notes at Exhibit 19 falsified
the report at Exhibit 23 submitted by accused no.1. His
intention was clear and that is to screen the offence of causing
murder of Sulochana and to show that she committed suicide by
pouring kerosene on her body and setting herself on fire. If she
wanted to commit suicide, she would not have gone to the toilet
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block and poured kerosene on herself. The inquest panchanama
at Exhibit 12 as noted earlier, went to show that she was set on
fire while she was in the toilet block and in fact she had
discharged stool. Inquest panchanama (Exhibit 12) and the spot
panchanama (Exhibit 13) would also indicate that Sulochana
was done to death by gagging her mouth and by suffocation and
after some time kerosene was poured on her body and was set
on fire by lighting a matchstick so as to show that she
committed suicide while she was alone in the house between 11
a.m. to 12.15 p.m. Even in such an eventuality, the intruder
would not look for a kerosene can, spray the kerosene on her
dead body and set her on fire and then make his exit from the
road behind the house. At the same time, there has to be some
motive or plan behind such a crime by a third person and the
deceased was hardly known to any outsider. Accused no.1 had
clearly stated in Exhibit 23 that he did not suspect anyone. It is
nobody’s case that the door behind the house was open. All
these circumstances undoubtedly point out and prove the
culpability of accused no.1 in causing the homicidal death of
Sulochana and to screen the offence he subsequently poured
kerosene on her person and set the body ablaze by lighting a
matchstick. Accused no.2 helped him in screening the offence
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and it has come in the evidence of PW 4 – Jagjitsing that
accused nos.1 and 2 were seen by him at about 12.15 p.m.
while trying to break open the main door. The trial Court did not
consider these aspects and merely on the ground that there was
no evidence beyond doubt that death of Sulochana was caused
by the accused, it acquitted accused no.1 from the charge under
Section 302 of IPC. When the murder had taken place within the
four-walls and deliberate attempt was made to screen the
offence, it was necessary for the trial Court to take the aid of
Section 106 of the Evidence Act and examine whether the
accused had discharged their burden to explain the facts which
were within their special knowledge. The burden of proving the
circumstances leading to the murder of Sulochana by
suffocation was upon accused no.1 and he did not discharge the
same. The accused no.2, by remaining quiet, has assisted
accused no.1 in screening the offence, though there is no
evidence to point a finger against her that she had joined
accused no.1 in causing his wife’s homicidal death. The trial
Court has rightly rejected the prosecution case that there was
illicit relationship between the two accused. The evidence
indicated that accused no.1 and the son of accused no.2 were
working in the same factory. By filing a written report at Exhiit
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23, the accused no.1 was required to discharge his burden to
prove that someone else had caused the murder of his wife
while she was alone in the house and he failed to discharge the
said burden. This is an additional link in the chain of
circumstances placed before the trial Court by the prosecution.
While we are hearing these appeals filed by the State
Government, the order of conviction and sentence passed
against accused no.1 under Section 498-A of IPC has reached
finality.
14. The view taken by the trial Court in acquitting the accused
under Sections 302 and 201 of IPC cannot be termed as a
possible view. On the other hand, it is based on wrong
appreciation of the circumstances brought on record by the
prosecution. When the young bride met with homicidal death at
her matrimonial home and while in the company of her
husband, it was not permissible for the trial Court to jump to the
hypothesis of giving benefit of doubt to the accused. If an
offence takes place inside the privacy of a house and in such
circumstances where the assailants have all the opportunity to
plan and commit the offence at the time and in circumstances of
their choice, it would be extremely difficult for the prosecution
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to lead evidence to establish the guilt of the accused if the strict
principle of circumstantial evidence is insisted upon by the
courts. A judge does not preside over a criminal trial merely to
see that no innocent man is punished. A judge also presides to
see that a guilty man does not escape. The law does not enjoin
a duty on the prosecution to lead evidence of such character
which is almost impossible to be led or at any rate extremely
difficult to be led. The duty of the prosecution is to lead such
evidence which it is capable of leading, having regard to the
facts and circumstances of the case. Where an offence like
murder is committed in secrecy inside a house, initial burden to
establish the case would undoubtedly be upon the prosecution,
but the nature and amount of evidence to be led by it to
establish the charge cannot be of the same degree as is
required in other cases of circumstantial evidence. The burden
would be of a comparatively lighter character. In view of
Section 106 of the Evidence Act there will be a corresponding
burden on the inmates of the house to give a cogent
explanation as to how the crime was committed. Where an
accused is alleged to have committed murder of his wife and
the prosecution succeeds in leading evidence to show that
shortly before the commission of crime they were seen together
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or the offence takes place in the dwelling home where the
husband also normally resided, it has been consistently held
that if the accused does not offer any explanation how the wife
received injuries or offers an explanation which is found to be
false, it is a strong circumstance which indicates that he is
responsible for commission of the crime [(2006) 10 SCC 681].
In Ganeshlal v. State of Maharashtra [(1992) 3 SCC 106], the
appellant was prosecuted for the murder of his wife which took
place inside his house. It was observed that when the death
had occurred in his custody, the appellant is under an obligation
to give a plausible explanation for the cause of her death in his
statement under Section 313 of Cr.P.C. The mere denial of the
prosecution case coupled with absence of any explanation was
held to be inconsistent with the innocence of the accused, but
consistent with the hypothesis that the appellant is a prime
accused in the commission of murder of his wife.
15. In the instant case, we have no doubt in our mind that the
culpability of accused no.1 in causing the homicidal death of his
wife has been duly established by the incriminating
circumstances stated hereinabove.
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16. The trial Court had not charged the accused for an offence
punishable under Section 304-B of IPC and, therefore, it was
contended by the learned APP that the accused no.1 ought to be
held guilty for an offence punishable under Section 302 of IPC.
The ingredients of Section 304-B of IPC are as under:
(1) The death of the woman is caused by any burns or bodily
injury or in some circumstances which is not normal.
(2) Such death occurs within 7 years from the date of her
marriage.
(3) The victim was subjected to cruelty or harassment by her
husband or any relation of her husband.
(4) Such cruelty or harassment should be for or in connection
with demand of dowry, and
(5) It is established that such cruelty and harassment was
made soon before her death.
In the instant case the trial Court accepted the evidence
of PW 1 – Laxman Gholap, the brother of the deceased and
concluded that a demand of Rs.20,000/- was made by the
accused from the father of the deceased so as to make provision
for separate residential premises and on that count the
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deceased stayed with her in-laws or with her parents for almost
two years. It was PW 1 who had brought the deceased to the
house of accused no.2 and so as to cohabit with accused no.1
just six days prior to the date of the incident and the father of
the deceased had no capacity to pay the amount of Rs.20,000/-.
The trial Court has held accused no.1 guilty for the offence
punishable under Section 498-A of IPC by observing that he had
caused mental cruelty to the deceased. Though the trial Court
did not frame the charge for the offence punishable under
Section 304-B of IPC, we do not find any impediment in holding
accused guilty for the offence punishable under Section 304-B of
IPC. His unnatural conduct in not sending the news of his wife’s
death to her parents who were in the neighbouring district and
the fact that his wife met with an unnatural death just within six
days of her stay in the company of accused no.1 and within a
period of seven years of marriage would lead to the
presumption under Section 113-B of the Evidence Act. In our
opinion, it would be safe to convict the accused no.1 under
Section 304-B instead of Section 302 of IPC.
He has been on bail during the last about 19 years and
the minimum sentence for the offence punishable under Section
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304-B of IPC is seven years and the maximum sentence is for
life. Accused no.1 filed his report at Exhibit 23 and tried to
screen the offence and, therefore, this will be an additional
circumstance which is required to be taken into consideration.
17. In the premises, Criminal Appeal No.472 of 1992 is hereby
allowed partly. Accused no.1-Baban Kisan Kulvade is hereby
convicted for the offences punishable under Section 304-B of IPC
and under Section 201 read with Section 34 of IPC.
ig He is
sentenced to suffer RI for a period of ten years for the offence
punishable under Section 304-B of IPC and to pay a fine of Rs.
1000/- in default thereof to suffer RI for three months. He is also
sentenced to suffer RI for two years for the offence punishable
under Section 201 read with Section 34 of IPC. Both the
sentences to run concurrently and accused no.1 shall be entitled
for set off, if any, under Section 428 of Cr.P.C.
Accused no.2-Smt. Shantibai Shrichand Kshyatriya is
hereby held guilty for the offence punishable under Section 201
read with Section 34 of IPC. She is sentenced to suffer SI for
two years. She will be entitled to set off, if any, under Section
428 of Cr.P.C.
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The bail granted to the accused is hereby cancelled and
they shall surrender to the concerned police station forthwith to
suffer the sentence. We direct the District Superintendent of
Police, Thane (Rural) to take appropriate steps to take the
accused in custody and admit them to the concerned jail to
undergo the sentence. A compliance report shall be submitted
by the District Superintendent of Police, Thane (Rural) to the
Sessions Court at Thane along with a copy to the Registrar
(Judicial) of this Court within four weeks from today. A copy of
this order shall be forwarded to the District Superintendent of
Police, Thane (Rural) forthwith by the Registry.
18. As Criminal Appeal No.472 of 1992 has been allowed by
us, we do not see any reason, at this point of time, to enhance
the sentence awarded to accused no.1 by the trial Court for the
offence punishable under Section 498-A of IPC. Hence Criminal
Appeal No.446 of 1992 must fail and the same is hereby
dismissed.
(MRS. MRIDULA BHATKAR,J) (B.H. MARLAPALLE,J.)
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