Full Judgment Text
Cri. Appeal No. 14/2010
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 14 OF 2010
Satish s/o. Kondiba Gawali,
Age 30 yrs., Occu. Agri.,
R/o. Shedgaon, Tq. Shrigonda,
District Ahmednagar. ....Appellant.
Versus
The State of Maharashtra ....Respondent.
Mrs. Sadhana Jadhav, Advocate for appellant.
Mr. K.G. Patil, APP for State/respondent.
CORAM : NARESH H. PATIL &
T. V. NALAWADE, JJ.
DATED : 4th May, 2011.
JUDGMENT : [ PER T.V. NALAWADE, J.]
1. This appeal is filed against the judgment and order of
Sessions Case No. 11/2007, which was pending in the Court of
Additional Sessions Judge, Ahmednagar. By the decision dated
15.10.2009, the appellant/accused is convicted and sentenced by
the Trial Court for offences punishable under sections 302, 498A
and 201 of the Indian Penal Code.
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2. In short, the facts leading to the institution of the appeal, can
be stated as follows :
(a) Complainant Gorakh Khedkar is a resident of village
Khalegaon, Tahsil Karjat, District Ahmednagar. The deceased Swati
was his daughter and she was given in marriage to the present
appellant on 20.5.2006. Original accused Nos. 2 and 3 are the real
brothers of the appellant and accused No. 6 is sister of appellant.
Accused Nos. 4 and 5 are the parents of the appellant. After the
marriage, Swati started cohabiting with appellant in his village
Shedgaon, Tahsil Shrigonda, District Ahmednagar. All the accused
were living in the same house. Swati was treated well for about one
month of the marriage.
(b) Swati used to visit the house of her parents on the occasions
of festival. On the occasion of "Nagpanchami" festival of the year
2006, when Swati came to the house of her parents, she disclosed
that all the accused were asking her to bring Rs. one lac from her
parents as they wanted to construct new house. She disclosed that
for fulfilling the demand of bringing amount, they were giving
taunts to her and continuously teasing her. She also complained
that the accused were asking her to do heavy work and virtually
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starving her. After hearing the disclosures, the complainant called
a meeting of respectable persons of his village and they advised
him to call appellant to the village to convince him. The mediators
tried to convince the appellant not to make such demand and not
to harass Swati. Complainant also promised that he would give
some money afterwards as he was not in a position to meet the
demand immediately. The appellant was not convinced and he
expressed displeasure. After 10 to 12 days of this meeting, when
Swati was cohabiting with the appellant, uncle of the complainant
visited the house of appellant and on that occasion also Swati
made similar disclosures. Appellant was insisting Swati to bring
amount from her parents. On the previous day of "Shravan Pola"
festival, when complainant contacted accused to invite him for
celebration of "Pola" festival, the accused refused to come to the
house of the complainant and he also refused to send Swati. When
the Complainant talked with Swati on phone, she disclosed that
illtreatment was continued to her as the demand was not met with.
Swati was not sent for "Pola" festival to the house of her parents.
Twenty days after the "Pola" festival, complainant visited the house
of appellant and on that occasion also similar disclosures were
made to the complainant. On that occasion, Swati further
expressed fear that there was danger to her life from the accused
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persons.
(c) On 8.10.2006 after 8 p.m. the accused contacted Manisha,
relative of complainant, to inform that Swati was missing since 4
p.m. of the day. The parents of Swati searched for her, but she could
not be traced. On 9.10.2006 the accused/appellant gave report to
Shrigonda Police Station at about 11 a.m. that dead body of Swati
was found in the well, in his field. Appellant also informed about
this incident to Manisha. A.D. was registered on the basis of report
given by the appellant.
(d) The complainant, his relatives and some persons from his
village went to village Shedgaon on the morning of 9.10.2006. After
learning about the finding of dead body, they went to the well.
They noticed that there were injuries on arms and on the neck of
the dead body. Inquest panchanama was prepared by police in the
inquiry of A.D. and the dead body was referred to the Government
Hospital. The post mortem was conducted on the same day and
doctor gave opinion that Swati died due to asphyxia due to
throttling. After learning about the cause of death, Gorakh the
complainant, gave report to police and the crime at Cr. No.
245/2006 came to be registered at about 20.30 hrs. for aforesaid
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offences on 9.10.2006. The complaint was given against the
husband and his relatives.
(e) On 10.10.2006 the appellant came to be arrested. Injuries
were found near left eye and over right eyebrow of the accused
which were fresh. Police prepared spot panchanama. Shri. Hajare,
the P.I., who was attached to Shrigonda Police Station, has made
the investigation. He recorded the statements of the witnesses.
Viscera was preserved and it was sent to CA office. After
completion of the investigation, chargesheet came to be filed in
the Court of Judicial Magistrate, First Class, Shrigonda. JMFC
committed the case to the Court of Sessions. The charge was
framed against all the accused persons for the aforesaid offences.
All the accused pleaded not guilty. Prosecution examined in all
eight witnesses. The accused persons took a defence of total denial
during statements given under section 313 of Criminal Procedure
Code. Defence examined one Bapurao Gavali as defence witness.
The Trial Court acquitted the relatives of the husband and the
husband came to be convicted and sentenced for aforesaid
offences.
(f) The Trial Court has believed the evidence given by
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prosecution witnesses regarding the demand of Rs. one lac made
by accused No. 1. The fact that Swati died homicidal death, was not
seriously disputed before the Trial Court and the prosecution also
proved that Swati died homicidal death. The Trial Court has held
that accused gave false information to police and he concealed the
offence. The Trial Court has taken into consideration the conduct
of the accused immediately after the incident and on the basis of
circumstantial evidence, the conviction is given. In the appeal,
both sides are heard. Points raised by both sides are being
discussed alongwith the evidence.
3. The prosecution has relied only on circumstantial evidence.
In the evidence of Sonawane (PW 7), the spot panchanama is
proved. It is not disputed that the land Gat No. 44 belongs to the
family of Kondiba Gavali, father of appellant. The spot was shown
by the accused. The well in which dead body was found, according
to the accused, is situated in land Gat No. 44. The dead body was
taken out from the well by the appellant and his brothers and after
that report was given by the appellant to police. In the evidence of
Vasant Jadhav (PW 4) the report given by accused to Shrigonda
Police Station is proved as Exh. 66. During the statement given
under section 313 of Cr. P. C., the appellant has admitted that he
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had given this report to police. This document shows that the dead
body was taken out from the well as per the case of appellant at
about 7.30 a.m. on 9.10.2006. In the evidence of Kundlik Khedkar
(PW 2), the prosecution has proved the inquest panchanama as
Exh. 63. This document was also prepared during the inquiry of
A.D. and the dead body was identified by complainant Gorakh (PW
1). The panchanama was prepared in between 12.45 p.m. and 13.45
p.m. Though Kundlik (PW 2) is relative of the complainant, there is
also the evidence of Investigating Officer Sonawane (PW 7) on the
inquest panchanama. The defence has not seriously disputed this
record. In the argument also, the fact that Swati died homicidal
death was not seriously disputed. This document shows that there
were injuries on both the arms, on the forehead and on the throat.
There were blood stains on the sari also.
4. Dr. Shaila Dange (PW 8) conducted the PM examination on
the dead body and in her evidence, the PM report at Exh. 82 is duly
proved. The evidence of doctor and PM report shows that injuries
like contusions were found on left and right side of neck. Injuries
like abrasions were found over posterior aspect of left arm and
right arm. There was a fracture of right superior horn of thyroid
cartilage. All these injuries are said to be antimortem in nature.
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Doctor has given opinion that the cause of death as due to
asphyxia due to throttling. In the cross examination, it is only
suggested that such injuries can be caused due to fall on stone or
due to snatching of ornaments from the neck. The suggestions are
denied. Surprisingly, suggestion of causing of injuries due to fall
during scuffle are also given. There is no need to discuss this
evidence more. Further the inquest panchanama at Exh. 63 shows
that the ornaments were intact and no ornament was removed
from the dead body. No such specific defence is also taken by the
accused/appellant. This evidence is sufficient to prove that Swati
died due to asphyxia due to throttling. There was no symptom that
death was caused due to asphyxia due to drowning. The aforesaid
evidence is sufficient to prove that in the well of the land of father
of appellant, the dead body of Swati was thrown after committing
her murder.
5. Section 8 of the Evidence Act shows that conduct of the
accused in such a case is relevant, if conduct influences or is
influenced by any fact in issue or relevant fact, whether the
conduct of the accused was previous or subsequent to the
incident. The Explanation (1) to section 8 shows that if statement
of person like accused in such a case which accompanies and
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explains acts other than the statement, such statement can also be
treated as part of conduct. In view of this position of law, the report
given by accused, Exh. 66, is relevant piece of evidence. In this
report, the accused informed to police following things :
(a) On 8.10.2006 at about 4 p.m. he was
present in the field and to his knowledge, his
father and deceased had also reached the field
prior to 4 p.m.
(b) He learnt from his father that the deceased
had left the company of father by saying that she
was proceeding to answer nature's call and the
deceased had not returned for quite some time.
(c) The accused searched for the deceased by
giving calls in sugarcane crop and then he went
to well situated in his filed.
(d) The accused saw footwear, the Chappal, of
deceased floating on the water of well.
(e) As per his case, the accused gave missing
report to police at 1.30 hrs. of 9.10.2006. [ This
report is not brought on record by the accused,
when in view of other provisions of the Evidence
Act, it was necessary for him to do so.]
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(f) On 9.10.2006 at about 7.30 a.m. the
accused searched in the water of the well and
then he found the dead body.
6. The accused has taken the defence of total denial. He has not
specifically come out with any case as to when exactly he went to
the field. There are many suggestions given for accused to various
witnesses to point out the distance between the well and the
residential place of the accused and also to show that the accused
was cultivating this land. To witness Gorakh (PW 1) suggestions are
given in cross examination to the effect that accused No.
1/appellant was living with Swati separately, from other accused
persons. Suggestions are given that other accused were also living
separately with their respective families. A suggestion is given that
accused No. 3 was running a photo studio in Shrigonda and he had
shifted there about 4 to 5 years prior to the date of incident. A
suggestion is given to PW 1 that accused No. 2 Laxman was doing
the business of agricultural operation like UsBandhani (preparing
groups of standing sugarcane by tying them together). A suggestion
is given that accused Nos. 4 to 6 were taking care of cows. It is
specifically suggested that yield from agricultural sugarcane crop
of the accused was Rs. 2.5 lacs per annum. Another specific
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suggestion is given that accused No. 1 is a member of Shrigonda
Cooperative Sugar Factory. It is further suggested that due to load
sheding, it had become necessary to lift the water from well
manually. Similarly it is suggested to Manisha (PW 5) during cross
examination that Swati was given in marriage to the appellant as
he was having 8 acres of agricultural land. This suggestion is
admitted by Manisha (PW 5). She has also admitted suggestion
given to her that the appellant was cultivating the land. It is
suggested to her that Laxman, other accused, was having thrashing
machine and he was doing that business. She has expressed
ignorance about it. She has admitted the suggestion that other
accused Ashok was in the business of photography and he was
doing the business at Shrigonda. The report at Exh. 66 given by the
accused and aforesaid suggestions indicate that the accused was
not disputing that he was cultivating the land in which the well is
situated. By giving suggestions, it was also contended that other
accused had no concern with this land or its cultivation.
7. In spite of the aforesaid circumstances, the accused
examined his defence witness Deoram Gavali (DW 1) to show that
accused No. 2 Laxman is having bullocks and he is doing
cultivation of the land and accused No. 1 is doing the business by
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using thrashing machine. This witness was used by police for
preparation of spot panchanama, but he has tried to deny the
contents of this document when there was no reason for doing so.
He has admitted that the accused are his relatives and he generally
sits in his grocery shop. There is no record to show that accused
No. 1 was doing some business by using thrashing machine. In
view of these circumstances, the evidence of Deoram (DW 1) is of
no use to accused. This witness cannot be trusted due to aforesaid
circumstances.
8. The accused has not examined himself on oath and the
father of accused is also also not examined to show that the
deceased had left the field or she was lastseen alive when she was
alone by somebody. Though it is true that the initial burden of
proving few circumstances which are required to be proved for the
use of section 106 of the Evidence Act is on prosecution, there is
the aforesaid report of the accused and there are other connecting
circumstances due to which it was necessary for the accused to
give some explanation. In view of the provisions of section 8 of the
Evidence Act and aforesaid record and circumstances, this Court
has no hesitation to hold that at the relevant time, the accused was
present in the field and it was necessary for the accused to given
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appropriate explanation regarding the cause of death of Swati.
9. For defence on aforesaid incriminating circumstance two
reported cases were cited. In the case reported as AIR 1974 SC 778,
( Sawal Das Vs. State of Bihar), the Apex Court has observed that :
"The burden of proving a plea specifically
set up by accused lies upon him. But neither
section 103 nor section 106 can absolve
prosecution from discharging its general or
primary burden of proving its case beyond
reasonable doubt. It is only when prosecution
has led evidence which if believed will sustain
conviction, or makes out a prima facie case, that
the question arises of considering facts of which
the burden of proof may lie upon the accused."
There cannot be any question of disputing this proposition made
by the Apex Court. In the case reported as 2004 AIR SCW 819
(Sashi Jena and others Vs. Khadal Swain and another), the Apex
Court has discussed section 33 of the Evidence Act and also the
provisions of section 106. Homicidal death of wife was proved, but
in view of the facts of that case, the Apex Court held that mother in
law and two brothers of the husband cannot be convicted only for
the single circumstance like homicide took place in their house.
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The facts were entirely different. Few relevant facts appearing from
the record are already mentioned and other evidence of the
present case is being discussed.
10. On the other hand, for prosecution also few cases were cited.
In the case reported as 2007 (Supp.) Bom. C.R. 853 (Aurangabad
Bench) (Ramprasad Tukaram Gadade Vs. State of Maharashtra),
the death of wife was caused due to strangulation. Husband and
wife were living in the said house. In view of this circumstance, this
Court held that if the prosecution proves that they were living
together in the same house, the burden of prosecution is
discharged and it is up to the accused to explain the special
circumstance under section 106 of the Evidence Act. It is further
observed that if the husband does not explain, adverse inference
can be drawn and conviction in such a case is possible. This Court
referred the case of Apex Court reported in 2006 (10) SCC 681
(Trimukh Maroti Kiran Vs. State of Maharashtra). The Apex Court
has observed that when the accused has an opportunity to plan
and commit the offence at the time and in the circumstances of his
choice, it is extremely difficult for prosecution to lead evidence for
establishing the guilt. It is further observed that in such cases strict
principle of circumstantial evidence cannot be insisted upon by
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the Court. This proposition also cannot be disputed. In the case
reported as 2003 (11) SCC 271 (State of Punjab Vs. Karnail Singh),
the Apex Court has laid down that it is the duty of the prosecution
to lead such evidence which it is capable of leading, having regard
to the facts and circumstances of the case and after that section
106 of the Evidence Act can be used. Similar observations were
made by the Apex Court in the case reported as AIR 2007 SC 144
(State of Rajasthan Vs. Kashi Ram). However, the facts of the other
cases cited for prosecution viz. 2000 ALL MR (Cri) 514 (Vanappa
Sadashiv Pujari Vs. State of Maharashtra) were totally different.
11. The observations made by the Apex Court and Bombay High
Court in the cases cited supra show that in such a case, the
provisions of sections 101, 103, 106 and 114 of the Evidence Act
need to be considered together. The combined effect of these
provisions show that the initial burden to prove the guilt of the
accused is on prosecution and section 106 does not relieve
prosecution of that burden. However, section 106 is designed to
meet certain exceptional cases in which it would be impossible or
at any rate disproportionately difficult for the prosecution to
establish the facts which are "especially" within the knowledge of
accused and which he could prove without difficulty or
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inconvenience. Thus, the facts which are established as within the
knowledge of the accused need to be explained by the accused. If
he does not explain these facts, there will be some missing links in
the chain of circumstances. In view of these special provisions like
sections 103 and 106 of the Evidence Act, these missing links can
be inferred from the proved facts. In view of section 114, in drawing
the inference, a judge of fact is required to have due regard to the
common course of natural events to human conduct and their
relation to the facts of a particular case. If that is not done, section
114 of the Evidence Act would become useless and the criminal
justice system will become ineffective.
12. Thus, in view of the facts of the present case, in ordinary
course of nature and in view of the report which is at Exh. 66, it
needs to presume that the accused was present in the field where
the well is situated and his wife was also there. As the dead body
was found in the well and death took place due to asphyxia due to
throttling, it was necessary for the accused to explain as to how the
wife sustained these injuries. The inquest panchanama and the
evidence of the witnesses show that the routein ornaments were
on the body of the deceased and there was no attempt to commit
theft. In any case, the thief would not have thrown the dead body
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in to a well. The injuries were found only on the hands, in addition
to the injuries which were present on the throat. There was no
injury on mouth, lips. If some stranger was attempting to kill her by
throttling, the deceased would have certainly raised hue and cry
and the accused would have certainly learnt about it, if he is not
the real culprit. Due to these circumstances, it needs to be
presumed that whatever happened to the wife is within special
knowledge of the appellant. There are no steps to the well. The
description of well given in the spot panchanama and medical
evidence has ruled out probability of suicidal and accidental death.
13. The mention of name of father in report at Exh. 66 is of no
use to the accused, as there is nothing positive on the record in
respect of this contention. The aforesaid circumstances are
certainly against this mention in Exh. 66. In Exh. 66, the accused
has not mentioned that he noticed injuries on the two arms of the
dead body and also on the throat of the dead body. The accused
did not express suspicion regarding the cause of death and he even
did not mention that it was the case of probably suicide or
accidental death. The mentioning that at about 4 p.m. of 8.10.2006
the accused had seen the footwear of the deceased floating in the
well shows that there was circumstance, reason for the accused to
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draw inference that his wife was in the well. In ordinary course,
husband would have immediately tried to take steps to see as to
whether she was there and she was alive. No such steps were taken
by the accused and the accused tried to trace the dead body only
on the next day, after more than 14 hours. The step was taken by
the accused on the next morning before the arrival of police even
when as per his case, he had given missing report at about 1.30 hrs.
of 9.10.2006. It is already observed that the accused ought to have
brought the first missing report on the record. Even during the
hearing of appeal, a query was made to the defence counsel and
she was asked whether the defence is interested in bringing the
said report on the record. No interest was shown in that regard by
the counsel of the appellant. This circumstance creates probability
that when the accused saw footwear of his wife floating in the
water of well at about 4 p.m. of 8.10.2006 he was sure that she was
dead. Thus, the fact that the cause of death is within the knowledge
of the appellant, can be easily inferred. These circumstances are
relevant under section 8 of the Evidence Act also.
14. In the evidence of prosecution witnesses and also in the
evidence of defence witness, it is brought on record by defence that
the house of the accused is situated at the distance of 1/2 k.m.
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from the field. The deceased was newly married woman. If she
really wanted to answer the nature's call, she would have returned
to residential place for the same. Thus, the contention of the
accused in this regard does not appear to be true. In view of the
aforesaid circumstances and provisions of section 8 of the
Evidence Act, it needs to be presumed that by the aforesaid
conduct, the accused has destroyed the presumption of innocence
which is available in criminal law in his favour. By giving the
report, Exh. 66, the accused gave version favourable to himself and
which was not true. Thus the record and the conduct can be used
against him in view of illustration (e) of section 8 of the Evidence
Act.
15. The accused has admitted the arrest panchanama dated
10.10.2006 which is at Exh. 57. He was arrested at about 0.45 hrs.
Fresh injuries were found near left eye and right eyebrow. In the
same document, the accused had given explanation to the police
that the injuries were caused by the relatives of the deceased on
parents side. No such injury was found on the person of any other
accused. There is no medical evidence in this regard. The incident
probably took place prior to 4 p.m. of 8.10.2006 and so in absence
of medical evidence, it is difficult to infer that these injuries were
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caused in the course of same transaction and this circumstance
can be used under section 7 of the Evidence Act.
16. In addition to the aforesaid circumstantial evidence which
points finger only to the accused, there is other evidence on motive
and also for the offence punishable under section 498A of IPC.
Gorakh (PW 1) has given evidence that the marriage took place on
20.5.2006. Swati died on 8.10.2006 i.e. within four and half months
of the marriage. Gorakh has given evidence that Swati used to visit
his house on the occasions of festival and after one month of the
marriage, at the time of "Nagpanchami" festival, the first disclosure
about the illegal demand and illtreatment was made by Swati.
Gorakh has deposed that Swati disclosed that the accused were
demanding Rs. one lac from her parents as they wanted to
construct a new house. Gorakh has given evidence that he called
Kundlik Khedkar (PW 2) and Popat (PW 3) and meeting was held to
convince the appellant not to make such demand. He has deposed
that he promised to give some amount in future as he was not in a
position to pay Rs. one lac at that time. According to him, accused
expressed displeasure. He has deposed that after "Nagpanchami"
festival, Swati returned back to appellant for cohabitation. Kundlik
(PW 2 ) and Popat (PW 3) have given similar evidence. Both the
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witnesses are admittedly relatives of the complainant. Both these
witnesses have given similar versions and they have also deposed
that such a demand of money was made to Swati and there was
illtreatment to her due to that demand.
17. Gorakh (PW 1) has given evidence that Mohan Khedkar,
other relative, had visited the village of accused after few days of
first incident and to him also similar disclosure was made by the
deceased. This witness is not examined by the prosecution and so
there is no need to discuss more the evidence of Gorakh in that
regard.
18. Gorakh (PW 1) has further deposed that one day prior to
"Shravan Pola" he called accused No. 1 on phone and requested
him to send Swati for "Pola" festival. He has deposed that the
accused refused to send Swati. He has deposed that when he talked
with Swati on the same occasion, Swati started crying and she
requested to make urgent arrangement of money as there was
illtreatment to her. Gorakh has deposed that Swati was not sent to
his house for celebration of "Pola" festival. He has given evidence
that 15 to 20 days after "Pola" festival, he had visited house of
accused No. 1 and on that occasion also similar disclosures were
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made by Swati. He has further deposed that on the last occasion
Swati had disclosed that accused Nos. 1 to 4 were saying that "she
will be done away" as the demand was not meet with. Manisha
(PW 5) has given evidence that after one and half months of the
marriage, she felt that Swati was not happy and she was under
mental pressure. All the three witnesses ,who have given evidence
in corroboration to the version of complainant, are relatives of
complainant. But, only due to this circumstance, their evidence
cannot be discarded. Swati had expressed fear that there was the
danger to her life due to this demand. This disclosure is relevant
under section 8 and also under section 32 (1) of the Evidence Act.
Swati died homicidal death and so such disclosure needs to be
given due importance.
19. Gorakh (PW 1) has given evidence that on 8.10.2006, in the
afternoon, he learnt from his relatives that Manisha (PW 5 ) had
informed that Swati was missing since afternoon. He has deposed
that on 9.10.2006 he left for the village of accused. The record of
panchanama shows that prior to 12 noon the complainant and
other witnesses were present in the village of the accused. These
witnesses have given evidence that they saw the injuries on the
arms and throat. Much was argued in respect of some
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discrepancies in the evidence of Gorakh (PW 1). At one point he
admitted that the report was given near the well and at other point,
he stated that the report was given in the police station after
learning about the cause of death. The report is duly proved as Exh.
61. The post mortem was completed at 6.45 p.m. and the crime on
the basis of report was registered at 20.30 hrs. of 9.10.2006. Thus,
the report was given immediately. It was submitted for defence
that as the report was given only after learning the cause of death,
the allegations regarding the demand of money and illtreatment on
the count of the demand cannot be believed. This submission is
not acceptable. If the father waited to know the reason of death
and only after confirming the reason, he gave the report, his
evidence cannot be looked with doubt. The report is fully
consistent with the evidence given by PW 1 in the Court. The only
inconsistency in the substantive evidence and Exh. 61 is that in the
report, it is mentioned that they learnt about the incident of
missing Swati at about 11 p.m. on 8.10.2006 and in the substantive
evidence, he has mentioned that in the afternoon of 8.10.2006 he
learnt about this incident. Whatever they learnt was on the basis of
news given by Manisha (PW 5). So the evidence of Manisha needs
to be given preference on this point. She has deposed that she
learnt about the incident at about 8 p.m. when the accused gave
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24
her a call.
20. Some suggestions were given to all the prosecution witnesses
for defence which are not consistent with the aforesaid record and
also the defence taken by the accused. It is suggested to PW 1 that
accused No. 1 had called him on phone at about 6 to 7 a.m. of
8.10.2006 to inform that Swati was missing. This suggestion is
denied. It is suggested to PW 1 that accused No. 1 had informed on
phone to Gorakh and the relatives of Gorakh at about 7.30 to 8 a.m
of 9.10.2006 that Swati fell in the well. This suggestion is also
denied. It is suggested to PW 1 and also to other two male
witnesses, who are relatives of Gorakh that false certificate was
procured regarding the cause of death by them. This suggestion is
denied. A suggestion was given to both Gorakh and Manisha that
marriage of Swati was to be settled with a son of sister of Gorakh,
but due to some circumstances, it could not be settled, though
Swati wanted to marry with the said relative. It is also suggested
that Gorakh had spent amount of Rs. 75,000/ for getting job for
the said relative. These suggestions are denied. The reason behind
the suggestions is not directly brought on the record in the
evidence of these witnesses. As Swati died homicidal death, there is
no need to consider the effect of these circumstances in favour of
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the accused. A suggestion is given to Popat (PW 3) that after the
incident, the accused had approached the complainant with
amount of Rs. one lac to settle the matter, but the complainant had
refused to accept the amount. It is surprising that such suggestion
was also given for the defence.
21. There is no reason to disbelieve Gorakh and his aforesaid
three relatives in respect of the evidence that the demand of Rs.
one lac was made by the accused No. 1 and there was illtreatment
to Swati. This evidence can be used as motive under section 8 of
the Evidence Act and also as disclosures of the deceased which is
relevant under section 32 (1) of the Evidence Act. There is certainly
proximity as regards the time in respect of the disclosures and the
incident. This evidence has strengthened the case of the
prosecution and it is admissible under section 32 (1) and 8 of the
Evidence Act. On the other hand, the accused tried to create a false
story of missing and his conduct of creating such record and story
can be used under section 8 of the Evidence Act against him.
22. The aforesaid evidence and the position of law show that
only the appellant had an opportunity to finish Swati. He gave false
explanation and he created some false record with the intention
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26
that such story would help him and would conceal the offence. He
threw the body in to the well and he tried to make evidence
disappear. Thus, the evidence given by the prosecution is sufficient
to prove the offences punishable under section 302, 498A and 201
of IPC.
23. The Trial Court has discussed most of the aforesaid
circumstances and there is no reason to interfere in the decision of
the Trial Court. So the appeal stands dismissed.
[ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.]
ssc/cria14.10
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1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 14 OF 2010
Satish s/o. Kondiba Gawali,
Age 30 yrs., Occu. Agri.,
R/o. Shedgaon, Tq. Shrigonda,
District Ahmednagar. ....Appellant.
Versus
The State of Maharashtra ....Respondent.
Mrs. Sadhana Jadhav, Advocate for appellant.
Mr. K.G. Patil, APP for State/respondent.
CORAM : NARESH H. PATIL &
T. V. NALAWADE, JJ.
DATED : 4th May, 2011.
JUDGMENT : [ PER T.V. NALAWADE, J.]
1. This appeal is filed against the judgment and order of
Sessions Case No. 11/2007, which was pending in the Court of
Additional Sessions Judge, Ahmednagar. By the decision dated
15.10.2009, the appellant/accused is convicted and sentenced by
the Trial Court for offences punishable under sections 302, 498A
and 201 of the Indian Penal Code.
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2. In short, the facts leading to the institution of the appeal, can
be stated as follows :
(a) Complainant Gorakh Khedkar is a resident of village
Khalegaon, Tahsil Karjat, District Ahmednagar. The deceased Swati
was his daughter and she was given in marriage to the present
appellant on 20.5.2006. Original accused Nos. 2 and 3 are the real
brothers of the appellant and accused No. 6 is sister of appellant.
Accused Nos. 4 and 5 are the parents of the appellant. After the
marriage, Swati started cohabiting with appellant in his village
Shedgaon, Tahsil Shrigonda, District Ahmednagar. All the accused
were living in the same house. Swati was treated well for about one
month of the marriage.
(b) Swati used to visit the house of her parents on the occasions
of festival. On the occasion of "Nagpanchami" festival of the year
2006, when Swati came to the house of her parents, she disclosed
that all the accused were asking her to bring Rs. one lac from her
parents as they wanted to construct new house. She disclosed that
for fulfilling the demand of bringing amount, they were giving
taunts to her and continuously teasing her. She also complained
that the accused were asking her to do heavy work and virtually
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3
starving her. After hearing the disclosures, the complainant called
a meeting of respectable persons of his village and they advised
him to call appellant to the village to convince him. The mediators
tried to convince the appellant not to make such demand and not
to harass Swati. Complainant also promised that he would give
some money afterwards as he was not in a position to meet the
demand immediately. The appellant was not convinced and he
expressed displeasure. After 10 to 12 days of this meeting, when
Swati was cohabiting with the appellant, uncle of the complainant
visited the house of appellant and on that occasion also Swati
made similar disclosures. Appellant was insisting Swati to bring
amount from her parents. On the previous day of "Shravan Pola"
festival, when complainant contacted accused to invite him for
celebration of "Pola" festival, the accused refused to come to the
house of the complainant and he also refused to send Swati. When
the Complainant talked with Swati on phone, she disclosed that
illtreatment was continued to her as the demand was not met with.
Swati was not sent for "Pola" festival to the house of her parents.
Twenty days after the "Pola" festival, complainant visited the house
of appellant and on that occasion also similar disclosures were
made to the complainant. On that occasion, Swati further
expressed fear that there was danger to her life from the accused
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4
persons.
(c) On 8.10.2006 after 8 p.m. the accused contacted Manisha,
relative of complainant, to inform that Swati was missing since 4
p.m. of the day. The parents of Swati searched for her, but she could
not be traced. On 9.10.2006 the accused/appellant gave report to
Shrigonda Police Station at about 11 a.m. that dead body of Swati
was found in the well, in his field. Appellant also informed about
this incident to Manisha. A.D. was registered on the basis of report
given by the appellant.
(d) The complainant, his relatives and some persons from his
village went to village Shedgaon on the morning of 9.10.2006. After
learning about the finding of dead body, they went to the well.
They noticed that there were injuries on arms and on the neck of
the dead body. Inquest panchanama was prepared by police in the
inquiry of A.D. and the dead body was referred to the Government
Hospital. The post mortem was conducted on the same day and
doctor gave opinion that Swati died due to asphyxia due to
throttling. After learning about the cause of death, Gorakh the
complainant, gave report to police and the crime at Cr. No.
245/2006 came to be registered at about 20.30 hrs. for aforesaid
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5
offences on 9.10.2006. The complaint was given against the
husband and his relatives.
(e) On 10.10.2006 the appellant came to be arrested. Injuries
were found near left eye and over right eyebrow of the accused
which were fresh. Police prepared spot panchanama. Shri. Hajare,
the P.I., who was attached to Shrigonda Police Station, has made
the investigation. He recorded the statements of the witnesses.
Viscera was preserved and it was sent to CA office. After
completion of the investigation, chargesheet came to be filed in
the Court of Judicial Magistrate, First Class, Shrigonda. JMFC
committed the case to the Court of Sessions. The charge was
framed against all the accused persons for the aforesaid offences.
All the accused pleaded not guilty. Prosecution examined in all
eight witnesses. The accused persons took a defence of total denial
during statements given under section 313 of Criminal Procedure
Code. Defence examined one Bapurao Gavali as defence witness.
The Trial Court acquitted the relatives of the husband and the
husband came to be convicted and sentenced for aforesaid
offences.
(f) The Trial Court has believed the evidence given by
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6
prosecution witnesses regarding the demand of Rs. one lac made
by accused No. 1. The fact that Swati died homicidal death, was not
seriously disputed before the Trial Court and the prosecution also
proved that Swati died homicidal death. The Trial Court has held
that accused gave false information to police and he concealed the
offence. The Trial Court has taken into consideration the conduct
of the accused immediately after the incident and on the basis of
circumstantial evidence, the conviction is given. In the appeal,
both sides are heard. Points raised by both sides are being
discussed alongwith the evidence.
3. The prosecution has relied only on circumstantial evidence.
In the evidence of Sonawane (PW 7), the spot panchanama is
proved. It is not disputed that the land Gat No. 44 belongs to the
family of Kondiba Gavali, father of appellant. The spot was shown
by the accused. The well in which dead body was found, according
to the accused, is situated in land Gat No. 44. The dead body was
taken out from the well by the appellant and his brothers and after
that report was given by the appellant to police. In the evidence of
Vasant Jadhav (PW 4) the report given by accused to Shrigonda
Police Station is proved as Exh. 66. During the statement given
under section 313 of Cr. P. C., the appellant has admitted that he
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7
had given this report to police. This document shows that the dead
body was taken out from the well as per the case of appellant at
about 7.30 a.m. on 9.10.2006. In the evidence of Kundlik Khedkar
(PW 2), the prosecution has proved the inquest panchanama as
Exh. 63. This document was also prepared during the inquiry of
A.D. and the dead body was identified by complainant Gorakh (PW
1). The panchanama was prepared in between 12.45 p.m. and 13.45
p.m. Though Kundlik (PW 2) is relative of the complainant, there is
also the evidence of Investigating Officer Sonawane (PW 7) on the
inquest panchanama. The defence has not seriously disputed this
record. In the argument also, the fact that Swati died homicidal
death was not seriously disputed. This document shows that there
were injuries on both the arms, on the forehead and on the throat.
There were blood stains on the sari also.
4. Dr. Shaila Dange (PW 8) conducted the PM examination on
the dead body and in her evidence, the PM report at Exh. 82 is duly
proved. The evidence of doctor and PM report shows that injuries
like contusions were found on left and right side of neck. Injuries
like abrasions were found over posterior aspect of left arm and
right arm. There was a fracture of right superior horn of thyroid
cartilage. All these injuries are said to be antimortem in nature.
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Doctor has given opinion that the cause of death as due to
asphyxia due to throttling. In the cross examination, it is only
suggested that such injuries can be caused due to fall on stone or
due to snatching of ornaments from the neck. The suggestions are
denied. Surprisingly, suggestion of causing of injuries due to fall
during scuffle are also given. There is no need to discuss this
evidence more. Further the inquest panchanama at Exh. 63 shows
that the ornaments were intact and no ornament was removed
from the dead body. No such specific defence is also taken by the
accused/appellant. This evidence is sufficient to prove that Swati
died due to asphyxia due to throttling. There was no symptom that
death was caused due to asphyxia due to drowning. The aforesaid
evidence is sufficient to prove that in the well of the land of father
of appellant, the dead body of Swati was thrown after committing
her murder.
5. Section 8 of the Evidence Act shows that conduct of the
accused in such a case is relevant, if conduct influences or is
influenced by any fact in issue or relevant fact, whether the
conduct of the accused was previous or subsequent to the
incident. The Explanation (1) to section 8 shows that if statement
of person like accused in such a case which accompanies and
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9
explains acts other than the statement, such statement can also be
treated as part of conduct. In view of this position of law, the report
given by accused, Exh. 66, is relevant piece of evidence. In this
report, the accused informed to police following things :
(a) On 8.10.2006 at about 4 p.m. he was
present in the field and to his knowledge, his
father and deceased had also reached the field
prior to 4 p.m.
(b) He learnt from his father that the deceased
had left the company of father by saying that she
was proceeding to answer nature's call and the
deceased had not returned for quite some time.
(c) The accused searched for the deceased by
giving calls in sugarcane crop and then he went
to well situated in his filed.
(d) The accused saw footwear, the Chappal, of
deceased floating on the water of well.
(e) As per his case, the accused gave missing
report to police at 1.30 hrs. of 9.10.2006. [ This
report is not brought on record by the accused,
when in view of other provisions of the Evidence
Act, it was necessary for him to do so.]
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(f) On 9.10.2006 at about 7.30 a.m. the
accused searched in the water of the well and
then he found the dead body.
6. The accused has taken the defence of total denial. He has not
specifically come out with any case as to when exactly he went to
the field. There are many suggestions given for accused to various
witnesses to point out the distance between the well and the
residential place of the accused and also to show that the accused
was cultivating this land. To witness Gorakh (PW 1) suggestions are
given in cross examination to the effect that accused No.
1/appellant was living with Swati separately, from other accused
persons. Suggestions are given that other accused were also living
separately with their respective families. A suggestion is given that
accused No. 3 was running a photo studio in Shrigonda and he had
shifted there about 4 to 5 years prior to the date of incident. A
suggestion is given to PW 1 that accused No. 2 Laxman was doing
the business of agricultural operation like UsBandhani (preparing
groups of standing sugarcane by tying them together). A suggestion
is given that accused Nos. 4 to 6 were taking care of cows. It is
specifically suggested that yield from agricultural sugarcane crop
of the accused was Rs. 2.5 lacs per annum. Another specific
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11
suggestion is given that accused No. 1 is a member of Shrigonda
Cooperative Sugar Factory. It is further suggested that due to load
sheding, it had become necessary to lift the water from well
manually. Similarly it is suggested to Manisha (PW 5) during cross
examination that Swati was given in marriage to the appellant as
he was having 8 acres of agricultural land. This suggestion is
admitted by Manisha (PW 5). She has also admitted suggestion
given to her that the appellant was cultivating the land. It is
suggested to her that Laxman, other accused, was having thrashing
machine and he was doing that business. She has expressed
ignorance about it. She has admitted the suggestion that other
accused Ashok was in the business of photography and he was
doing the business at Shrigonda. The report at Exh. 66 given by the
accused and aforesaid suggestions indicate that the accused was
not disputing that he was cultivating the land in which the well is
situated. By giving suggestions, it was also contended that other
accused had no concern with this land or its cultivation.
7. In spite of the aforesaid circumstances, the accused
examined his defence witness Deoram Gavali (DW 1) to show that
accused No. 2 Laxman is having bullocks and he is doing
cultivation of the land and accused No. 1 is doing the business by
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12
using thrashing machine. This witness was used by police for
preparation of spot panchanama, but he has tried to deny the
contents of this document when there was no reason for doing so.
He has admitted that the accused are his relatives and he generally
sits in his grocery shop. There is no record to show that accused
No. 1 was doing some business by using thrashing machine. In
view of these circumstances, the evidence of Deoram (DW 1) is of
no use to accused. This witness cannot be trusted due to aforesaid
circumstances.
8. The accused has not examined himself on oath and the
father of accused is also also not examined to show that the
deceased had left the field or she was lastseen alive when she was
alone by somebody. Though it is true that the initial burden of
proving few circumstances which are required to be proved for the
use of section 106 of the Evidence Act is on prosecution, there is
the aforesaid report of the accused and there are other connecting
circumstances due to which it was necessary for the accused to
give some explanation. In view of the provisions of section 8 of the
Evidence Act and aforesaid record and circumstances, this Court
has no hesitation to hold that at the relevant time, the accused was
present in the field and it was necessary for the accused to given
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13
appropriate explanation regarding the cause of death of Swati.
9. For defence on aforesaid incriminating circumstance two
reported cases were cited. In the case reported as AIR 1974 SC 778,
( Sawal Das Vs. State of Bihar), the Apex Court has observed that :
"The burden of proving a plea specifically
set up by accused lies upon him. But neither
section 103 nor section 106 can absolve
prosecution from discharging its general or
primary burden of proving its case beyond
reasonable doubt. It is only when prosecution
has led evidence which if believed will sustain
conviction, or makes out a prima facie case, that
the question arises of considering facts of which
the burden of proof may lie upon the accused."
There cannot be any question of disputing this proposition made
by the Apex Court. In the case reported as 2004 AIR SCW 819
(Sashi Jena and others Vs. Khadal Swain and another), the Apex
Court has discussed section 33 of the Evidence Act and also the
provisions of section 106. Homicidal death of wife was proved, but
in view of the facts of that case, the Apex Court held that mother in
law and two brothers of the husband cannot be convicted only for
the single circumstance like homicide took place in their house.
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14
The facts were entirely different. Few relevant facts appearing from
the record are already mentioned and other evidence of the
present case is being discussed.
10. On the other hand, for prosecution also few cases were cited.
In the case reported as 2007 (Supp.) Bom. C.R. 853 (Aurangabad
Bench) (Ramprasad Tukaram Gadade Vs. State of Maharashtra),
the death of wife was caused due to strangulation. Husband and
wife were living in the said house. In view of this circumstance, this
Court held that if the prosecution proves that they were living
together in the same house, the burden of prosecution is
discharged and it is up to the accused to explain the special
circumstance under section 106 of the Evidence Act. It is further
observed that if the husband does not explain, adverse inference
can be drawn and conviction in such a case is possible. This Court
referred the case of Apex Court reported in 2006 (10) SCC 681
(Trimukh Maroti Kiran Vs. State of Maharashtra). The Apex Court
has observed that when the accused has an opportunity to plan
and commit the offence at the time and in the circumstances of his
choice, it is extremely difficult for prosecution to lead evidence for
establishing the guilt. It is further observed that in such cases strict
principle of circumstantial evidence cannot be insisted upon by
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15
the Court. This proposition also cannot be disputed. In the case
reported as 2003 (11) SCC 271 (State of Punjab Vs. Karnail Singh),
the Apex Court has laid down that it is the duty of the prosecution
to lead such evidence which it is capable of leading, having regard
to the facts and circumstances of the case and after that section
106 of the Evidence Act can be used. Similar observations were
made by the Apex Court in the case reported as AIR 2007 SC 144
(State of Rajasthan Vs. Kashi Ram). However, the facts of the other
cases cited for prosecution viz. 2000 ALL MR (Cri) 514 (Vanappa
Sadashiv Pujari Vs. State of Maharashtra) were totally different.
11. The observations made by the Apex Court and Bombay High
Court in the cases cited supra show that in such a case, the
provisions of sections 101, 103, 106 and 114 of the Evidence Act
need to be considered together. The combined effect of these
provisions show that the initial burden to prove the guilt of the
accused is on prosecution and section 106 does not relieve
prosecution of that burden. However, section 106 is designed to
meet certain exceptional cases in which it would be impossible or
at any rate disproportionately difficult for the prosecution to
establish the facts which are "especially" within the knowledge of
accused and which he could prove without difficulty or
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16
inconvenience. Thus, the facts which are established as within the
knowledge of the accused need to be explained by the accused. If
he does not explain these facts, there will be some missing links in
the chain of circumstances. In view of these special provisions like
sections 103 and 106 of the Evidence Act, these missing links can
be inferred from the proved facts. In view of section 114, in drawing
the inference, a judge of fact is required to have due regard to the
common course of natural events to human conduct and their
relation to the facts of a particular case. If that is not done, section
114 of the Evidence Act would become useless and the criminal
justice system will become ineffective.
12. Thus, in view of the facts of the present case, in ordinary
course of nature and in view of the report which is at Exh. 66, it
needs to presume that the accused was present in the field where
the well is situated and his wife was also there. As the dead body
was found in the well and death took place due to asphyxia due to
throttling, it was necessary for the accused to explain as to how the
wife sustained these injuries. The inquest panchanama and the
evidence of the witnesses show that the routein ornaments were
on the body of the deceased and there was no attempt to commit
theft. In any case, the thief would not have thrown the dead body
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17
in to a well. The injuries were found only on the hands, in addition
to the injuries which were present on the throat. There was no
injury on mouth, lips. If some stranger was attempting to kill her by
throttling, the deceased would have certainly raised hue and cry
and the accused would have certainly learnt about it, if he is not
the real culprit. Due to these circumstances, it needs to be
presumed that whatever happened to the wife is within special
knowledge of the appellant. There are no steps to the well. The
description of well given in the spot panchanama and medical
evidence has ruled out probability of suicidal and accidental death.
13. The mention of name of father in report at Exh. 66 is of no
use to the accused, as there is nothing positive on the record in
respect of this contention. The aforesaid circumstances are
certainly against this mention in Exh. 66. In Exh. 66, the accused
has not mentioned that he noticed injuries on the two arms of the
dead body and also on the throat of the dead body. The accused
did not express suspicion regarding the cause of death and he even
did not mention that it was the case of probably suicide or
accidental death. The mentioning that at about 4 p.m. of 8.10.2006
the accused had seen the footwear of the deceased floating in the
well shows that there was circumstance, reason for the accused to
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18
draw inference that his wife was in the well. In ordinary course,
husband would have immediately tried to take steps to see as to
whether she was there and she was alive. No such steps were taken
by the accused and the accused tried to trace the dead body only
on the next day, after more than 14 hours. The step was taken by
the accused on the next morning before the arrival of police even
when as per his case, he had given missing report at about 1.30 hrs.
of 9.10.2006. It is already observed that the accused ought to have
brought the first missing report on the record. Even during the
hearing of appeal, a query was made to the defence counsel and
she was asked whether the defence is interested in bringing the
said report on the record. No interest was shown in that regard by
the counsel of the appellant. This circumstance creates probability
that when the accused saw footwear of his wife floating in the
water of well at about 4 p.m. of 8.10.2006 he was sure that she was
dead. Thus, the fact that the cause of death is within the knowledge
of the appellant, can be easily inferred. These circumstances are
relevant under section 8 of the Evidence Act also.
14. In the evidence of prosecution witnesses and also in the
evidence of defence witness, it is brought on record by defence that
the house of the accused is situated at the distance of 1/2 k.m.
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19
from the field. The deceased was newly married woman. If she
really wanted to answer the nature's call, she would have returned
to residential place for the same. Thus, the contention of the
accused in this regard does not appear to be true. In view of the
aforesaid circumstances and provisions of section 8 of the
Evidence Act, it needs to be presumed that by the aforesaid
conduct, the accused has destroyed the presumption of innocence
which is available in criminal law in his favour. By giving the
report, Exh. 66, the accused gave version favourable to himself and
which was not true. Thus the record and the conduct can be used
against him in view of illustration (e) of section 8 of the Evidence
Act.
15. The accused has admitted the arrest panchanama dated
10.10.2006 which is at Exh. 57. He was arrested at about 0.45 hrs.
Fresh injuries were found near left eye and right eyebrow. In the
same document, the accused had given explanation to the police
that the injuries were caused by the relatives of the deceased on
parents side. No such injury was found on the person of any other
accused. There is no medical evidence in this regard. The incident
probably took place prior to 4 p.m. of 8.10.2006 and so in absence
of medical evidence, it is difficult to infer that these injuries were
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20
caused in the course of same transaction and this circumstance
can be used under section 7 of the Evidence Act.
16. In addition to the aforesaid circumstantial evidence which
points finger only to the accused, there is other evidence on motive
and also for the offence punishable under section 498A of IPC.
Gorakh (PW 1) has given evidence that the marriage took place on
20.5.2006. Swati died on 8.10.2006 i.e. within four and half months
of the marriage. Gorakh has given evidence that Swati used to visit
his house on the occasions of festival and after one month of the
marriage, at the time of "Nagpanchami" festival, the first disclosure
about the illegal demand and illtreatment was made by Swati.
Gorakh has deposed that Swati disclosed that the accused were
demanding Rs. one lac from her parents as they wanted to
construct a new house. Gorakh has given evidence that he called
Kundlik Khedkar (PW 2) and Popat (PW 3) and meeting was held to
convince the appellant not to make such demand. He has deposed
that he promised to give some amount in future as he was not in a
position to pay Rs. one lac at that time. According to him, accused
expressed displeasure. He has deposed that after "Nagpanchami"
festival, Swati returned back to appellant for cohabitation. Kundlik
(PW 2 ) and Popat (PW 3) have given similar evidence. Both the
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witnesses are admittedly relatives of the complainant. Both these
witnesses have given similar versions and they have also deposed
that such a demand of money was made to Swati and there was
illtreatment to her due to that demand.
17. Gorakh (PW 1) has given evidence that Mohan Khedkar,
other relative, had visited the village of accused after few days of
first incident and to him also similar disclosure was made by the
deceased. This witness is not examined by the prosecution and so
there is no need to discuss more the evidence of Gorakh in that
regard.
18. Gorakh (PW 1) has further deposed that one day prior to
"Shravan Pola" he called accused No. 1 on phone and requested
him to send Swati for "Pola" festival. He has deposed that the
accused refused to send Swati. He has deposed that when he talked
with Swati on the same occasion, Swati started crying and she
requested to make urgent arrangement of money as there was
illtreatment to her. Gorakh has deposed that Swati was not sent to
his house for celebration of "Pola" festival. He has given evidence
that 15 to 20 days after "Pola" festival, he had visited house of
accused No. 1 and on that occasion also similar disclosures were
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made by Swati. He has further deposed that on the last occasion
Swati had disclosed that accused Nos. 1 to 4 were saying that "she
will be done away" as the demand was not meet with. Manisha
(PW 5) has given evidence that after one and half months of the
marriage, she felt that Swati was not happy and she was under
mental pressure. All the three witnesses ,who have given evidence
in corroboration to the version of complainant, are relatives of
complainant. But, only due to this circumstance, their evidence
cannot be discarded. Swati had expressed fear that there was the
danger to her life due to this demand. This disclosure is relevant
under section 8 and also under section 32 (1) of the Evidence Act.
Swati died homicidal death and so such disclosure needs to be
given due importance.
19. Gorakh (PW 1) has given evidence that on 8.10.2006, in the
afternoon, he learnt from his relatives that Manisha (PW 5 ) had
informed that Swati was missing since afternoon. He has deposed
that on 9.10.2006 he left for the village of accused. The record of
panchanama shows that prior to 12 noon the complainant and
other witnesses were present in the village of the accused. These
witnesses have given evidence that they saw the injuries on the
arms and throat. Much was argued in respect of some
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discrepancies in the evidence of Gorakh (PW 1). At one point he
admitted that the report was given near the well and at other point,
he stated that the report was given in the police station after
learning about the cause of death. The report is duly proved as Exh.
61. The post mortem was completed at 6.45 p.m. and the crime on
the basis of report was registered at 20.30 hrs. of 9.10.2006. Thus,
the report was given immediately. It was submitted for defence
that as the report was given only after learning the cause of death,
the allegations regarding the demand of money and illtreatment on
the count of the demand cannot be believed. This submission is
not acceptable. If the father waited to know the reason of death
and only after confirming the reason, he gave the report, his
evidence cannot be looked with doubt. The report is fully
consistent with the evidence given by PW 1 in the Court. The only
inconsistency in the substantive evidence and Exh. 61 is that in the
report, it is mentioned that they learnt about the incident of
missing Swati at about 11 p.m. on 8.10.2006 and in the substantive
evidence, he has mentioned that in the afternoon of 8.10.2006 he
learnt about this incident. Whatever they learnt was on the basis of
news given by Manisha (PW 5). So the evidence of Manisha needs
to be given preference on this point. She has deposed that she
learnt about the incident at about 8 p.m. when the accused gave
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her a call.
20. Some suggestions were given to all the prosecution witnesses
for defence which are not consistent with the aforesaid record and
also the defence taken by the accused. It is suggested to PW 1 that
accused No. 1 had called him on phone at about 6 to 7 a.m. of
8.10.2006 to inform that Swati was missing. This suggestion is
denied. It is suggested to PW 1 that accused No. 1 had informed on
phone to Gorakh and the relatives of Gorakh at about 7.30 to 8 a.m
of 9.10.2006 that Swati fell in the well. This suggestion is also
denied. It is suggested to PW 1 and also to other two male
witnesses, who are relatives of Gorakh that false certificate was
procured regarding the cause of death by them. This suggestion is
denied. A suggestion was given to both Gorakh and Manisha that
marriage of Swati was to be settled with a son of sister of Gorakh,
but due to some circumstances, it could not be settled, though
Swati wanted to marry with the said relative. It is also suggested
that Gorakh had spent amount of Rs. 75,000/ for getting job for
the said relative. These suggestions are denied. The reason behind
the suggestions is not directly brought on the record in the
evidence of these witnesses. As Swati died homicidal death, there is
no need to consider the effect of these circumstances in favour of
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the accused. A suggestion is given to Popat (PW 3) that after the
incident, the accused had approached the complainant with
amount of Rs. one lac to settle the matter, but the complainant had
refused to accept the amount. It is surprising that such suggestion
was also given for the defence.
21. There is no reason to disbelieve Gorakh and his aforesaid
three relatives in respect of the evidence that the demand of Rs.
one lac was made by the accused No. 1 and there was illtreatment
to Swati. This evidence can be used as motive under section 8 of
the Evidence Act and also as disclosures of the deceased which is
relevant under section 32 (1) of the Evidence Act. There is certainly
proximity as regards the time in respect of the disclosures and the
incident. This evidence has strengthened the case of the
prosecution and it is admissible under section 32 (1) and 8 of the
Evidence Act. On the other hand, the accused tried to create a false
story of missing and his conduct of creating such record and story
can be used under section 8 of the Evidence Act against him.
22. The aforesaid evidence and the position of law show that
only the appellant had an opportunity to finish Swati. He gave false
explanation and he created some false record with the intention
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that such story would help him and would conceal the offence. He
threw the body in to the well and he tried to make evidence
disappear. Thus, the evidence given by the prosecution is sufficient
to prove the offences punishable under section 302, 498A and 201
of IPC.
23. The Trial Court has discussed most of the aforesaid
circumstances and there is no reason to interfere in the decision of
the Trial Court. So the appeal stands dismissed.
[ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.]
ssc/cria14.10
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