Oral Judgment: (V.M. Deshpande, J.)
1. Being aggrieved by the judgment and order of conviction passed by the learned Sessions Judge, Gadchiroli, convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code in Session Case No.84 of 2012 on 20th of January, 2014 and sentencing him for life imprisonment and to pay a fine of Rs.1000/- and in default of payment of fine to undergo simple imprisonment for one month, the appellant is before this Court.
2. The prosecution case, as it is unfurled during the course of trial, is as under - When Bapuji Sayam (PW 10), Head Constable, attached to Police Station Chamorshi was discharging his station diary duty on 22nd of May, 2012, the appellant came in the Police Station and gave oral report. The said oral report was reduced into writing and it is at Exh.44. Shri Sayam registered an accidental death vide A.D.No.25 of 2012. The gist of the said oral report of appellant is that his second wife deceased Mamta committed suicide by hanging in the house.
3. Adinath Gawde (PW 11), P.S.O. of Police Station Chamorshi made an enquiry in A.D.No.25 of 2012. In that respect, he went to the house of the appellant. He had seen the dead body of Mamta hanging in the house. He prepared spot panchanama (Exh.16). He also seized some articles. He took down the dead body of Mamta. Thereafter, he prepared inquest panchanama in presence of panchas. Inquest Panchanama is at Exh.12. He then sent dead body for Post Mortem to Rural Hospital, Chamorshi.
4. On 23rd of May, 2012, Sapan Gharami (PW 2), the brother of the deceased, came to the Police Station and gave oral report that it is the appellant who is responsible for the death of Mamta. The oral report is at Exh.14. On the basis of the said, a Crime was registered against the appellant and his first wife Bedana for the offence punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code. Both the accused persons were arrested.
During the Police Custody Remand (PCR) the appellant made a disclosure statement (Exh.25) by which he agreed to show the place where he had concealed his clothes. Accordingly, the police party went to the house of the appellant and from backyard of his house, near toilet, from a pit the clothes were seized as per seizure panchanama at Exh.26. The seized articles were sent to the Chemical Analyzer. Chemical Analyzer's report was received. After completion of the investigation, he filed Charge-sheet against the appellant and his first wife Bedana in the Court of Judicial Magistrate (F.C.), Chamorshi. The learned Magistrate found that the offence is exclusively triable by the Court of Sessions therefore he committed the case to the Court of Sessions.
5. A Charge was framed against the present appellant and his first wife Bedana for the offence punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code. Both the accused denied the charge and claimed for their trial. The prosecution examined in all eleven witnesses and also relied upon documents proved during the course of the trial. The learned Session Judge by the impugned judgment acquitted co-accused Bedana, however, convicted the appellant as observed in opening paragraph of this judgment.
6. We have heard Shri R.M.Daga, the learned counsel for the appellant and Shri C.A. Lokhande, the learned Additional Public Prosecutor for the State. Both of them took us through the notes of evidence and record and proceedings of the Session case. The main submission of the learned counsel for the appellant is that the death in question is not homicidal one but it is suicidal one. In order to buttress his submission, he invited our attention to the inquest panchanama (Exh.12) and also Post Mortem Report (Exh.30), in general, more particularly Column No.20, to show that larynx, Trachea and Bronchi are congested and they were found intact. He, therefore, submitted that as per medical jurisprudence this is only because Mamta has committed suicide. He has also attacked on the evidence of PW 7 Supriya, daughter of deceased Mamta, that she cannot be trusted. He, therefore, submits that appeal be allowed.
Per contra, learned Additional Public Prosecutor Shri Lokhande supported the impugned judgment by submitting that the dead body was found inside the house of the appellant and therefore in view of Section 106 of the Evidence Act, since no explanation whatsoever was offered by the appellant, he was rightly convicted by the Court below.
7. The first question that is required to be decided by the Court is about the nature of the death since the learned counsel for the appellant has seriously disputed about its nature. The learned counsel invited our attention to the Inquest Panchanama (Exh.12) which recites that "Panchache va majhe maat ase aahe ki ghalfas ghevun mrityu jhala asava." On the basis of such, one cannot jump to the conclusion that it is suicidal death. In that view of the matter, we will have to scrutinize the medical evidence.
8. PW 8 is Dr.Bidhan Deuri. At the relevant time he was working as a Medical Officer and was attached to Rural Hospital, Chamorshi. On 22nd of May, 2012 dead body of Mamta was sent to him for Post Mortem. He conducted Post Mortem. He found following injuries on her person :-
i) Multiple abrasion (crescentic) irregularly distributed present over right side of cheek.
ii) multiple abrasion 2 x 1/2 cm., 5 in number, below the chin.
iii) multiple abrasion about 1 x 1/2 cm., 7 in number, present over right side of chest on mid clavicular line near nipple distributed irregularly.
iv) multiple abrasion 1 x 1/2 cm., 3 in number present over left shoulder joint distributed antero laterally.
According to him, he had seen blackish brown, dry, hard ligature mark about 28 x 2 x 1/2 cm. present round the neck situated above the level of thyroid cartilage between the larynx and chin. The ligature mark was directed obliquely upward and complete. He had also seen knot mark 4 x 3 cm. present over right side nape of neck about 5 cm. from the right mastoid region and also horizontal ligature mark 5 x 2 x 1/2 cm. was present over right side neck from thyroid cartilage. He had also seen abrasion (multiple) about 3 x 2 cm., 4 in number, present near ligature mark above and below irregularly distributed. According to the Autopsy Surgeon, the dissection of ligature mark revealed haemorrhage with fracture of hyoid bone infront of neck. According to him, the injuries were ante mortem except hanging ligature mark. According to the Autopsy Surgeon, the death was due to asphyxia as a result of manual strangulation (throttling). Though at the time of giving Post Mortem report (Exh.30) a final opinion was reserved till receipt of Chemical Analyzer's report, at the time of evidence of Dr.Bidhan C.A.report (Exh.22) was shown to him and on perusal of the said he gave his opinion that the death was due to throttling.
In view of the evidence of Dr.Bidhan, which remained intact on every aspect, we are of the opinion that the learned Judge of the Court below was right in reaching to the conclusion that the death was homicidal one and not suicidal as tried to be argued before this Court by the learned counsel for the appellant.
9. Section 106 of the Evidence Act reads as under:-
"106. Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
10. It is an admitted position that the deceased was second wife of the appellant. His first wife was co-accused Bidhan. The report lodged by the appellant (Exh.44) and the other evidence shows that the appellant along with his two wives used to reside in a same house, however, in different rooms. According to the report (Exh.44) there was a quarrel in between his two wives and therefore, he slapped both of them and directed that they should go to their respective rooms. The report further states that thereafter the appellant went in the room of the deceased Mamta and slept there. According to the report, on 22nd of May, 2012 she was found to be dead. PW 7 Supriya is daughter of deceased Mamta. Her evidence would reveal that her mother was assaulted by the appellant and her step-mother advised her to sleep.
11. The clothes of the appellant were discovered from the place which was exclusively in know of the appellant. Those were sent to Chemical Analyzer. Human blood was found on the said clothes. No explanation is offered by the appellant. The map of the occurrence is also available on record. The said map was prepared by the revenue authorities in view of the requisition (Exh.60) given by the Investigating Officer to revenue officials. The map is at Exh.61. It shows that the dead body was found hanging inside the house which was in exclusive control of the appellant. Even, according to the appellant himself, on 21st of May, 2012 in the night he slept in a room where Mamta slept. Thus, lastly Mamta was in the company of the appellant and on the next day when her dead body was found inside the house it was but expected from the appellant to give an explanation of the same. Therefore, in our view, the Court below was right in convicting the appellant. Hence, we pass the following order.
ORDER
Appeal stands dismissed.