Attarsing vs The State of Maharashtra

This appeal u/s 374(2) of the Code of Criminal Procedure, challenges the judgment and order delivered by Sessions Judge, Dhule, on 21.7.2006 in Sessions Case No. 90 of 2005. The appellant-accused is held guilty for offence u/s 302 of Indian Penal Code (for having committed murder of his wife Nagibai) and sentenced to life imprisonment, fine Rs. 1,000/-, in default, simple imprisonment for three months. The prosecution story can be narrated in brief, as follows;

� The incident in question took place on 22.6.2005 at about 2.30 p.m. at Manjanipada, taluka Shirpur, District Dhule. The exact location of the incident is inner compartment of the house of the accused. It is the prosecution story that, the victim was dealt with a blow, by means of wooden stump, as a result of which she died on the spot, having suffered intracranial haemorrhage. The description of the weapon used, has come in the deposition of the witnesses. It is of the size of cricket ball at one end and tapering at the other end.

� According to the prosecution, daughter of the accused and victim, namely, Mangibai (PW-5) was in the house. As she started crying, by observing violence between parents, accused pushed the wife in inner compartment of the house and closed the door from inside. Mangibai is said to have gone out and informed the occurrence to Purshya (PW-6). Ramesh (PW-11) claims that the violence was informed to him by brother of the accused, namely, Ratan. Ramesh claims that he went to the house of the accused and noticed that the door was closed from inside. On peeing through window, Nagibai was seen lying on the floor. The wooden stump was lying by her side. The accused was inside the house. At the requests of villagers, Ramesh went to Fatehpur and informed the details to Sarpanch Bhatu (PW-7) and others. Sarpanch asked him to call police patil and Kotwal. Police Patil was ill and hence, he sent his son Ramdas with Ramesh. Kotwal Khandu (PW-2) was also informed the incident.

� According to narration of Khandu, after Ramesh approached him, they went to police patil wherefrom, son Ramdas accompanied them and all this party, including Ramesh (PW-11), Khandu (PW-2), Ramdas and Bhatu (PW-7) went to the location. They witnessed the same scene as was witnessed by Purshya (PW-6), initially. Accused refused to open the door. He was persuaded to open the door, by Sarpanch, offering him drinking water and thereafter they nabbed the accused. Kotwal Khandu went to the police station, Shirpur and gave the report, which was registered as FIR at 18.05 hours on the same day.

Khandu (PW-2), Makhan (PW-4), Purshya (PW-6), Bhatu (PW-7) and Ramesh (PW-11) practically rendered identical type of evidence. All of them have claimed to have gone to the house of the accused and seen him inside the house by the side of deceased Nagibai; that the door was closed from inside and accused was required to be persuaded to open the door. All of them, except Purshya (PW-6), claimed that on enquiry, accused made extra-judicial confession. He bluntly told these people that his wife was a woman of bad character and, therefore, he smashed her.

In all, 12 witnesses are examined by prosecution. Lotan (PW-3) is the panch witness to the panchanama of seizure of clothes of the accused. He turned hostile. Mangibai (PW-5) is the daughter of the accused and the victim. She initially turned hostile, but while under cross examination by APP, she rendered considerable assistance to the prosecution and when under cross examination by the defence, again showed sign of hostility towards prosecution. Panchanama of seizure of blood stained clothes of the accused was ultimately proved by Govind Shinde (PW-9), the other panch.

Remaining witnesses are technical. Dr. Bharat (PW-1) had performed post mortem on the dead body. M.P. Bhawsar (PW-8) was then working as Judicial Magistrate, First Class, at Shirpur and he has recorded statements of Mangibai and Hurshya u/s 164 of the Code of Criminal Procedure. Police Constable Satish Jadhav (PW-10) carried muddemal articles to forensic laboratory. PSI Santosh Derle (PW-12) has carried out the investigation.

Upon reference to the impugned judgment, it is found that the learned judge has acquitted the accused for the charge u/s 498-A of IPC, because none of the witnesses spoke about ill-treatment, if any, by accused to the deceased wife on any earlier occasion.

So far as charge of murder is concerned, the learned Judge felt that whatever support rendered by daughter Mangibai, could be accepted as reliable part of evidence, in spite of she being hostile witness. According to learned Judge, Mangibai''s evidence pushes the accused with his back to the wall and the accused is obliged to explain, because her evidence shows that he was the only person in the company of the deceased, soon before the death. According to the learned Judge, defence of the accused that Nagibai suffered injury as a result of fall, is ruled out by medical evidence and the details available of the location in the panchanama of scene of offence. The trial judge has also drawn some support from the reports of the chemical analyser, since all the articles of the victim and clothes of the accused are found having blood stains of human blood group A. This is in spite of the fact that the results of the analysis for determination of the blood group of the victim and accused were inconclusive, when blood sent in the phial was analysed. Learned Judge felt that the evidence of other witnesses i.e. Ramesh, Khandu, Bhatu and Makhan provided a complete chain and the prosecution had successfully brought home the guilt, so far as charge of murder is concerned.

Heard learned counsel for respective parties. Advocate Shri Jaybhay has taken all efforts to gain some ground. He has taken us through entire evidence. According to Advocate Shri Jaybhay, when Mangibai is hostile, no part of her evidence should have been accepted by the trial court. So far as extra-judicial confession is concerned, he commented that although it was made in presence of quite a good number of villagers, Kotwal was part and parcel of the group and, therefore, this is equivalent to confessional statement to a police officer and, therefore, the same is hit by Section 25 of the Indian Evidence Act. According to Shri Jaybhay, in the absence of determination of blood group of accused and victim, report of the analyser ought not to have been relied upon. He also pointed out that versions of Sarpanch Bhatu (PW-7) that he offered water to accused, and that of Ramesh (PW-11) that he saw blood stains on the clothes of the accused, have come as a result of improvement and, therefore, those portions should be omitted from consideration of the evidence and its appreciation on merits.

Needless to say that, learned APP Mrs. Reddi was in full agreement with the line of reasons recorded by the trial court. She submitted that, taking overall view of the evidence, accused admits his presence in the house when wife suffered fatal injury. The theory of injury as a result of fall, is not sustainable and subsequent passive conduct of the accused, not inviting anybody for assistance, are the circumstances so eloquent that no other inference except that of guilt of the accused can be drawn by the court.

Time and again we write in our judgment about innocence of rustic witnesses. However, the accused in present case is a classic example of straight forward Adivasi. We intend to quote some of the questions and answers in his statement u/s 313 of Code of Criminal Procedure. It is settled legal position that the answers/explanation offered by accused in statement u/s 313 of Cr.P.C. can be considered by the court for supporting the prosecution case.

Q. No. 12. It has come in the evidence that PW Purshya Pawara saw through the window of your house and your wife Nagibai was found lying injured on the floor. What have you to say about it?

Ans. It is true that she was lying injured, but that time the door was open.

Q. No. 13. It has come in evidence that the club art. No. 3 was also found lying on the floor. (the club art. No. 3 is shown to the accused). What have you to say about it ?

Ans. Yes, it is true.

Q. No. 14. It has come in evidence that, that time you were present in the house. What have you to say about it ?

Ans. Yes, it is true.

Q. No. 16. It has come in evidence that, PW Bhatu Ditya Padvi had come there. What have you to say about it.

Ans. Yes, it is true.

Q. No. 21. It has come in the evidence that PW Bhatu Padvi and others made entry into your house and captured you. What have you to say about it. ?

Ans. I was inside and Bhatu Padvi asked me to open the door. They did not capture me.

Eventually, it is evident that, by answer to question No. 13 in his statement u/s 313 of Cr.P.C., the accused has admitted his presence, when the wife was lying on the floor in an injured condition, with weapon by her side. Impliedly, he has also accepted that the door was closed from inside. He has also admitted arrival and presence of witness Bhatu. In fact, on going through the entire statement, the accused seems to have taken twofold defence. One, that the door was not closed and secondly, Nagibai suffered injury as a result of fall. Out of the two, the first defence is aborted by answer to question No. 21.

We certainly cannot treat failure of defence as success of the prosecution. The conviction cannot be based only on the replies given by accused. These replies may be considered as support to the prosecution evidence, wherever some corroboration is required. But, the replies by themselves will not suffice to serve the cause of prosecution and the prosecution must stand on its own legs.

We have already referred that Khandu (PW-2), Makhan (PW-4), Purshya (PW-6), Bhatu (PW-7) and Ramesh (PW-11) all have narrated that upon getting intimation about the violence at the house of the accused, they reached the location and saw the closed house and through the window they could see the victim lying dead on the floor; the accused present in the said room and the weapon used also lying by the side of the victim. In the light of answers by accused, which are reproduced hereinabove, the doubts, if any, which could have been raised against these witnesses for some variance inters or some lapses in their depositions, stand cured by admissions of accused about his presence inside the house and also the door being closed, which was opened when asked by Bhatu (PW-7).

Since the presence of the accused at the time of death of Nagibai inside the house is proved, as rightly observed by the trial Judge, the situation is tantamount to custodial death or at least as if last seen together. Naturally, the reason for the death of Nagibai is within the special knowledge of the accused and Section 106 of the Evidence Act, obliges him to explain the same. In reply to Question No. 38 in the statement u/s 313 of the Code of Criminal Procedure, the accused has claimed "She sustained injury by fall on the floor".

In this context, we may refer to cross examination of Dr. Bharat to whom this defence was tried to be suggested, although unsuccessfully. The Doctor states;

the floor can be hard and blunt. The injuries, under reference are not possible by fall on such floor.

It is not proved that victim in this case has sustained injuries by fall on the floor.

Taking into consideration, location of the injury i.e. left temporo parietal region of scalp, it can be said that if an injury at this location is to be suffered by a fall, the victim must fall on the left side of his body. It can be visualised that, in case of such a fall, shoulder will bear major force of impact and parietal region or temporo parietal region would hit ground with considerably lesser force.

In this context, we may also refer to some small details of the location in the spot panchnama (Exhibit-22). The flooring of the house is described as simple flooring plastered with mixture of mud and cow dung. It can be said that the flooring is also not hard and blunt object. The defence of the accused that the victim suffered injuries as a result of fall, therefore, is not sustainable and on the contrary, the same credits negative points against the accused.

The trial judge has placed reliance upon the evidence of Mangibai, the daughter of victim and accused. During the course of cross examination by the A.P.P., she has stated as under, which part supports the prosecution story.

When my mother had sustained head injury, my father was there only i.e. near my mother. He was near the oven. He was talking loudly.

It is true that my father hit her with a wooden log and therefore she ran to the kitchen. It is true that my father immediately ran after her. I started weeping. It is true that therefore my father closed the door from inside. It is true that since I was weeping, Hursha came to me.

It is true that Hursha tried to open the door. The door could not be opened. Hursha then looked into the room through a window. It is true that Hursha saw that my mother was lying down with a head injury.

Mangibai also admitted that her statement was recorded by a Judge and after admissions regarding recording of this statement by Magistrate, she admits;

since I was weeping, Hursha came there. It is true that he asked me as to why I was weeping.

The principle "falsus in Uno falsus omnibus" is not applicable to the criminal matters and therefore, it is settled legal position that even part of the evidence of a hostile witness, if otherwise corroborated; can be accepted. It can be stated that the portion from the evidence of Mangibai, supporting the prosecution case as reproduced hereinabove, stands fully supported by the prosecution witnesses Khandu, Purshya, Bhatu, and Ramesh. Learned trial judge, therefore, does not appear to have fallen in error in accepting the part of evidence of Mangibai.

The Magistrate has entered the box as P.W. 8. He has asserted to have recorded the statement of Mangibai and Purshya. No doubt, the statement can be said to have been retracted by Mangibai. Even retracted confession recorded by Magistrate u/s 164(2) of the Code of Criminal Procedure can be accepted, without corroboration or with corroboration as a rule of prudence. Whether retracted confession is to be accepted without corroboration or some corroboration should be sought from other evidence on record, depends upon the facts of each case. On the similar lines, it can be said that the statement of the witnesses recorded u/s 164(5) of the Code of Criminal Procedure, there should be no legal bar in accepting once proved by recording Magistrate, even if retracted, either with some corroboration or even without corroboration in a given case. In the matter at hands, retracted statement of Mangibai stands fully supported by the evidence of other witnesses. Not only that, part of the statement is supported by herself, although during the cross examination by A.P.P. We feel this position should confirm our observation that the learned Sessions Judge committed no error in relying upon the part of the evidence of Mangibai.

As rightly argued by learned A.P.P., even if the case is judged, as a case based on circumstantial evidence, material on record leads to only one inference that the accused must be the author of the injury suffered by the victim and circumstances are (i) accused and victim only were present in the room where death resulted, (ii) room closed from the inside, (iii) weapon lying by the side of the victim, (iv) defence of injury as a result of fall being unacceptable and (v) passive reaction to the fact-situation, by accused.

Considered from any angle and even by totally ignoring extrajudicial confession, which could have provided motive to the prosecution case; we are convinced that the accused and accused alone must have inflicted fatal injuries upon the person of victim Nagibai.

Advocate Shri. Jaybhay tried to urge for bringing down the case to Section 304(II) of the Indian Penal Code, since there is a single blow. But the narration of the incident, as has come from the accepted part of Mangibai''s evidence; shows that accused was alone with victim within the house and he was determined to bring certain result. The result was death of Nagibai. We are afraid, the fact-situation does not permit us to say that the accused had no intention to kill his wife, although death might have resulted by a single blow.

For all above reasons, the appeal is required to be dismissed and same is, accordingly dismissed.

Certified copy of this judgment be furnished to appellant-accused, free of costs, through prison authorities.

We quantify the professional charges of Advocate Shri. Jaybhay at Rs. 400/- (Rs. Four hundred only).