Ashok Sudam Dhonge vs The State of Maharashtra

P.V. Hardas, J.—Appellant who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 1000/-, in default of which to undergo further RI for 2 years and RI for 5 years and to pay fine of Rs. 1000/- in default of which to undergo further RI for 1 year for an offence punishable u/s 201 of IPC, with a direction that the substantive sentence shall run concurrently, by 2nd Ad-Hoc Additional Sessions Judge, Malegaon, District-Nashik, by judgment dated 30.12.2005 in Sessions Case No. 11 of 2005, by this appeal questions the correctness of his conviction and sentence. Facts in brief, as are necessary for the decision of this appeal, may briefly be stated thus:

(i) PW-7 API Jainarayan Ghule who on 26.6.2003 attached to Malegaon Police Station, received information from the police patil on 28.9.2004 on the basis of which A.D. No. 62 of 2004 was registered. The said A.D. Was registered by police head constable Shelar and the enquiry was entrusted to PW-7 API Jainarayan Ghule. The information which was received is at Exhibit 32. PW-7 API Ghule proceeded to the scene of the incident and noticed the dead body of the deceased Chhayabai lying in her house. In the presence of panchas, an inquest panchnama of the dead body of deceased Chhaya was drawn at Exhibit 34. The dead body of deceased Chhaya was thereafter referred for postmortem examination. The scene of the incident panchnama was drawn in the presence of panchas at Exhibit 35. From the scene of the incident, one insecticide bottle and a glass were seized. The glass and the insecticide bottle were subsequently sent to the chemical analyzer.

(ii) PW-7 API Ghule issued a communication at Exhibit 36 to the Medical Officer soliciting his opinion in respect of the injuries sustained by the deceased. On the reverse of the said letter, the Medical Officer has expressed his opinion at Exhibit 37. The insecticide and the glass was referred to the chemical analyzer under requisition at Exhibit 38. The appellant was called for interrogation. Injuries were notice on his person and therefore the appellant was examined by PW-4 Dr. Bhimrao Tribhuvan who noticed the following external injuries:

Contused abrasion over right frontal area of head 1/4" x 1/4" skin-deep. Black in colour.

Abrasion over left abdominal wall 1/4 x 1/4" in size black in colour.

Abrasion over right forearm 1/2" x 1/4" black in colour.

Contused abrasion over right tibia 4" 1/4"/5. Abrasion over knee-joint.

Contused abrasion over left shoulder 1/4" x 1/4" on left shoulder.

Contusion over left little finger 4" x 1/2" x 1/4".

Injury certificate is at Exhibit 25. According to him injuries sustained by the appellant could be caused due to nails during the scuffle.

(iii) PW-7 API Ghule therefore lodged his report at Exit 40 on the basis of which an offence vide crime no. 214 of 2004 was registered u/s 302 of IPC. The investigation of the said crime was entrusted to PW-7 API Ghule. The appellant was arrested in the presence of panchas under arrest panchnama at Exhibit 41. Statements of witnesses were recorded. Further to the completion of the investigation, a chargesheet against the appellant was submitted.

(iv) Postmortem on the dead body of the deceased Chhaya was performed by PW-3 Dr. Mohd. Turabali. PW-3 Dr. Turabali noticed following external injuries on the dead body of deceased Chhaya:

Right fronto tempo-contusion 3 x 2 cm of bluish blackish discoloration.

Right para tracheal contusion i.e. right side neck of the grachea size 8 x 5 cm with bluish blackish discoloration.

Right side chest infraclavicular region bluish, size 15 x 10 cm of bluish and blackish discoloration at the level of 2nd and 3rd rib.

In palpation it gives cracking it means fracture of 2nd and 3rd rib.

Right hand dorsum base of second metacarpal bone there was abrasion of size 11/4 cm and 2 x 1/4 cm. This is caused by the nail.

Left hand wrist dorsum multiple abrasions of size 1 x 1/4 cm 2 x 1/4 cm number of abrasion was four and it is caused by hard and blunt object.

Left ankle lateral aspect laceration of 3 x 2 cm caused by hard and blunt object

right great toe abrasion of size 2 x 1/4 cm

Right leg lower 1/3rd abrasion of size 1/4 cm caused by nail

(v) He therefore opined that the injury nos. 4, 5, 6, 7, and 8 were signs of struggle which was ante mortem and simple in nature. On internal examination of head right fronto temporal haemotoma of size 5 x 2 cm and the skull bone was normal. Brain coverings was congested. On dissection of neck he noticed right para tracheal region there was clotted blood with ecchymosis of underline muscle and also left side ecchymosis of underline left para tracheal muscle. He noticed right side and 3rd ribs were fractured with ecchymosis of right side intra coastal muscle. The right apical pleural was torn. In larynx trachea and bronchi were congested and filled with blood stains. Both lungs were congested and frothy. Right lung apical region was lacerated and adherent to plura. In the stomach, he noticed 200 cc semi-digested food was present with abnormal smell. According to him, the deceased may have died about 20 to 25 hours before commencement of postmortem examination. Viscera was preserved for chemical analysis and after receipt of report of chemical analyzer, final cause of death came to be recorded and the cause of death was asphyxia death due to throttling with poisoning being postmortem. The postmortem report is at Exhibit 21, while the final cause of death certificate is at Exhibit 22.

(vi) On committal of the case to the Court of Sessions, Trial Court vide Exhibit 10 framed charge against the appellant for offence punishable u/s 302 and 201 of the Indian Penal Code.

(vii) The appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined 7 witnesses. The defence of the appellant is of denial. The Trial Court upon appreciation of the evidence of the prosecution convicted and sentenced the appellant as aforestated.

In order to effectively deal with the submissions advanced before us by Ms. Dhamale, the learned Counsel for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.

Prosecution has examined PW-2 Pundlik Aher father of deceased Chhaya and PW-5 Sushilabai Pawar aunt of deceased Chhaya. Prosecution had also examined PW-6 Laxmibai Dhondge sister-in-law of deceased Chhaya i.e. wife of brother of the appellant, but she did not support the prosecution and was declared hostile. The evidence of PW-2 Pundlik and PW-5 Sushilabai is to the extent that the appellant in order to improve his agriculture, had invested huge amounts in leading the pipeline to his agricultural field. According to Pundlik various amounts had been advanced by the relatives of deceased Chhaya including aunt of deceased Chhaya. According to Pundlik aunt of deceased Chhaya was hearting the appellant for refund of the loan which was taken by him. The appellant was unable to refund the said loan and consequently there used to be quarrel between deceased and the appellant. In respect of incident, PW-2 Pundlik stated about receipt of message and also going to the house of Chhaya on being informed about her death. The cause of death which was communicated to Pundlik was that Chhaya had died as a result of snakebite. Subsequent to postmortem, it had transpired that deceased Chhaya had been killed.

In cross-examination, it has been elicited by PW-2 Pundlik he did not have in his possession any documents evidencing the advancing hand-loan to the appellant for construction of the pipeline. Prosecution therefore at the threshold failed in establishing that either PW-2 Pundlik or the other relatives of deceased Chhaya had advanced any money to the appellant for installation of pipeline. A vague admission, however, is made by PW-6 Laxmibai in her cross-examination on behalf of the prosecution that certain amount was raised by Chhaya at her own level. Chhaya used to enquire from Laxmibai as to how the amount raised for pipeline would be refunded and Laxmibai used to reply that from the sale of agricultural produce, the loan could be refunded. Laxmibai has admitted as correct that prior to 15 days of the incident, Sushilabai i.e. aunt of Chhaya had visited her house demanding Rs. 30,000/-. According to Laxmibai, Sushilabai had come to the house of deceased Chhaya in order to collect onion saplings.

The learned Counsel for the appellant has therefore urged before us that failure of the prosecution to prove the motive i.e. about the dispute between the deceased Chhaya and appellant on account of refund of the loan amount, the appellant would be entitled to be given the benefit of doubt. The learned APP has supported the findings arrived at by the Trial Court.

It is true that in cases based on circumstantial evidence, motive as a circumstance is an important link in the chain of circumstances which the prosecution intends to forge. Motive would fale into insignificance in the event the case is based on ocular testimony of the eye-witness. However, failure of the prosecution to prove and establish the motive is not fatal in all cases even though cases may be resting on circumstantial evidence. If the other evidence is overwhelming and unquestionably points towards guilt of the accused, failure of the prosecution to establish and prove motive by itself would not be fatal to the prosecution case.

In the present case, the appellant was examined by PW-4 Dr. Tribhuvan who had noticed certain injuries. PW-3 Dr. Turabali had examined deceased and had also noticed certain injuries. The evidence of PW-3 Dr. Turabali indicates that the deceased had been throttled and thereafter insecticide was poured in her mouth. Thus, it was made to appear as if deceased Chhaya had died on account of consumption of insecticide.

The Medical Officer has given reasons as to why the Medical Officer has come to the conclusion that the poisoning was postmortem and not antemortem and that deceased Chhaya had died because of throttling. Injuries which were sustained by deceased Chhaya were all antemortem injuries. As pointed out by us, the appellant was examined by the medical officer who had noticed injuries which the appellant had sustained.

According to PW-4 Dr. Tribhuvan, injuries sustained by the appellant were on account of nail marks. In cross-examination, Dr. Tribhuvan has admitted that injuries of the nature sustained by the appellant could be caused to an agriculturist while working in the midst of thorny bushes. The appellant, however, has not explained injuries sustained by him in his statement u/s 313. In fact, the appellant has taken categorical defence of denial. The appellant has not taken a defence that he had sustained the injuries while working in the field. Thus, the injuries sustained by the appellant form a link or a nexus with the death of deceased Chhaya.

Deceased Chhaya had died in the house of the appellant sometime in the morning. The appellant has also not taken defence of alibi. An admission is elicited in the evidence of PW-6 Laxmibai particularly in the cross-examination that she had seen the appellant in the market at about 2 to 2.30 pm. The offence as alleged by the prosecution had been committed much earlier. The presence of the appellant in the market at 2 or 2.30 pm therefore does not afford any alibi to the appellant. In addition to the above circumstances, the appellant has taken a false defence. That is an additional circumstance which was taken into consideration after valuation of all the circumstances. We further find that there is no evidence that any intruder had entered into the house. It is inconceivable that any intruder would enter into the house of deceased Chhaya and for no reason would throttle her and then pour poison in mouth of the deceased and make it appear that deceased Chhaya had committed suicide.

In cases resting on circumstantial evidence, it is incumbent for the prosecution to prove each and every circumstance on which it proposes to rely. The circumstances so proved should be of a conclusive nature i.e. they should have a definite tendency of implicating the accused. The circumstances so established should form a complete chain which should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In other words the circumstances should be capable of only one inference i.e. that the accused and the accused alone has committed the crime. A reference may usefully be made of the judgment of the Supreme Court in Hanumant Vs. The State of Madhya Pradesh, and Sharad Birdhichand Sarda Vs. State of Maharashtra, .

In the present case, the deceased Chhaya had died unnatural death in the house of appellant. Deceased had been throttled and she had resisted attempts of assailant at throttling her. She had sustained injuries which were indicative of struggle which deceased had put up towards the attempt of the assailant at throttling her. The appellant thereafter in most diabolical manner poured insecticide in her mouth to make it appear that deceased Chhaya had died due to consumption of poison. A false information was communicated to PW-2 Pundlik that deceased Chhaya had died of snake-bite. The appellant had sustained injuries on his forearm which according to PW-4 Tribhuvan were on account of nail-marks. The appellant has not explained the injuries sustained by him in his statement under 313 of Cr. P.C. In the above circumstances, according to us the chain of circumstances leads to an irresistible conclusion that it was the appellant alone who has committed the crime. In addition thereto, the appellant has taken a false defence which can be used as an additional circumstance.

Thus considering the submissions advanced before us by the learned Counsel for the appellant and learned APP, according to us the prosecution has proved the offence against the appellant beyond reasonable doubt. The appeal filed by the appellant is sans merits and deserves to be dismissed. Accordingly, the Criminal Appeal No. 612 of 2007 is dismissed confirming the conviction and sentence of the appellant.