Mahavir Malhari Mane vs State of Maharashtra

V.K. Tahilramani, J—This appeal is preferred by the appellant - original accused against the judgment and order dated 13.6.2007 passed by the learned Additional Sessions Judge, Malshiras, Dist. Solapur in Sessions Case Nos. 13 of 2006. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer rigorous imprisonment for life and fine of Rs. 500/-, in default R.I. for one month.

The prosecution case briefly stated, is as under:

(a) Deceased Sharmila was the daughter of PW 1 Shantabai and sister of PW 2 Dattatraya. Sharmila was married to the appellant about five years prior to the incident. The appellant and Sharmila had three children i.e two sons and one daughter. At the time of the incident, the children of Sharmila were residing with her mother-in-law at Venegaon. Shantabai along with her son Dattatraya was residing at Village Kolegaon, Taluka Malshiras, District Solapur. Soon after the marriage, the appellant started suspecting that Sharmila had illicit relations with some other person(s) and hence, he used to harass her and beat her. He also used to drive her out of the house. Whenever Sharmila was driven out of the house, she used to come and stay with her mother Shantabai at Kolegaon.

(b) During the period of five years of marriage that Sharmila was married to the appellant, the appellant deserted Sharmila on two to four occasions. Sharmila on these occasions used to come and reside with her mother Shantabai. On these occasions, the appellant used to come to the house of Shantabai and request Shantabai to sent his wife Sharmila with him for cohabitation. Thereafter, Shantabai used to send Sharmila with the appellant to his house.

(c) On the last occasion, the appellant had come to the house of Shantabai with six persons from Venegaon and in the meeting, the appellant agreed that he would treat his wife Sharmila properly and not give her any cause to make any complaint, hence, Shantabai agreed to send her daughter Sharmila with the appellant. The appellant also executed an agreement on stamp paper stating therein that he would treat his wife Sharmila properly. After that Sharmila gave birth to a son at Venegaon. Thereafter, the appellant again started harassing Sharmila, therefore, Sharmila came to the house of Shantabai and started living with her. Three days thereafter, the appellant came to the house of Shantabai and expressed his desire to live with Sharmila separately in the house of Laxman who was the brother of Shantabai. The hut of Laxman was situated one hut away from the hut of Shantabai. The house of Laxman was vacant as Laxman along with his family had gone to Kolhapur in relation to sugarcane harvesting. Shantabai used to tether her she-goats in the house of Laxman. Every day in the morning, she used to go to untie the she-goats.

(d) The incident occurred on the night between 17.1.2006 and 18.1.2006. On the night of 17.1.2006, the appellant and deceased Sharmila took dinner in the house of Shantabai. Thereafter, they went to the house of Laxman where they were residing. On the next day morning, Shantabai went to the house of Laxman to release the she-goats. She entered into the house. She found that the appellant was not present in the house and she saw the dead body of Sharmila lying on Charpai with ligature mark on the neck. Shantabai started shouting whereupon neighbours came to the spot. They confirmed that Sharmila was no more. Shantabai then lodged F.I.R. Thereafter, investigation commenced. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

Charge came to be framed against the appellant under Section 302 of IPC. The appellant-accused pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.

We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that there is no merit in the appeal.

There is no eye witness in the present case and the case is totally based on circumstantial evidence. The main circumstance against the appellant is that on the night of 17.1.2006, he along with his wife deceased Sharmila went to the house of Laxman where they were residing. No one else was residing in the house. In the morning, the appellant was found missing and the dead body of Sharmila was found in the house with ligature mark on the neck. The second circumstance against the appellant is that he had the motive to commit the murder of his wife Sharmila. The motive being that the appellant suspected that his wife Sharmila was having illicit relations with some other person(s).

As far as the first circumstance is concerned, PW 1 Shantabai, PW 2 Dattatraya and PW 3 Mahadeo have deposed about it. PW 1 Shantabai has stated that she had one son by name Dattatraya and two daughters one of them being Sharmila. Sharmila was given in marriage to the appellant about five years prior to the incident. Shantabai has stated that since the beginning, the appellant was illtreating and harassing her daughter Sharmila as he suspected that Sharmila was having illicit relations with some other person(s). On account of this, the appellant also used to beat Sharmila and drive her out of the house. As and when Sharmila was driven out of the house, she used to come to the house of her mother Shantabai and stay in the house of Shantabai. During the five years that Sharmila was married to the appellant, the appellant deserted Sharmila on 2-4 occasions. On these occasions, Sharmila would some to her mother Shantabai''s house. Thereafter the appellant used to come to the house of Shantabai and request Shantabai to send his wife Sharmila with him for cohabitation. Thereafter, Sharmila used to be sent with the appellant to his house.

Shantabai has further stated that on the last occasion, the appellant had come to the house of Shantabai with six persons from Venegaon. In the meeting, the appellant agreed that he would treat Sharmila properly and not give her cause to make any complaint against him. Shantabai, therefore, agreed to send her daughter Sharmila with the appellant. The appellant even executed an agreement on stamp paper which was retained by Shantabai. Thereafter, Sharmila went with the appellant for cohabitation. She gave birth to a son at Venegaon. Shantabai has stated that the appellant again started harassing and beating her daughter Sharmila, therefore, Sharmila came to her house with two children and started residing with her. The first child of Sharmila was living with the mother-in-law of Sharmila. Three days thereafter, the appellant came to the house of Shantabai and expressed his desire to live with Sharmila separately in the house of Laxman who was the brother of Shantabai. At the same time, the mother of the appellant came to Kolegaon and she took away both the children of the appellant and deceased Sharmila to Venegaon. Sharmila told Shantabai that the appellant was harassing and beating her as he suspected her chastity.

Shantabai has further stated that on the night of the incident, the appellant and her daughter Sharmila took dinner in the house of Shantabai. Thereafter, the appellant and Sharmila went to the house of Laxman where the appellant and Sharmila were residing. Shantabai used to tether her she-goats in the house of Laxman. Laxman, his wife and sons had gone to Kolhapur in relation to sugarcane harvesting work. In between the house of Shantabai and Laxman, there was only one hut. The next morning, Shantabai went to the house of Laxman to release the shegoats. Shantabai found that the door was closed. She then opened the door and entered in the house of Laxman. She saw that the appellant was not present there. She saw the dead body of her daughter Sharmila lying on Charpai with ligature mark on the neck. On seeing this, Shantabai started shouting. Neighbours then gathered at the spot. They confirmed that Sharmila was dead. Shantabai then lodged F.I.R.

PW 2 Dattatraya has stated that Sharmila was his real sister. She was given in marriage to the appellant. The appellant and Sharmila were residing at Theur. They used to earn their livelihood by doing agricultural labour work. Quarrel took place between the appellant and Sharmila at Theur. Ten days thereafter, Sharmila came to the house of Dattatraya with her children. The appellant came there after some days. The appellant expressed his desire to live with his wife Sharmila and children in the house of Laxman which was vacant. Thereafter, Sharmila and the appellant started living in the hut of Laxman who was the maternal uncle of Dattatraya.

Dattatraya has further stated that on the day of the incident in the evening, the appellant and deceased Sharmila took dinner with PW 2 Dattatraya as well as PW 1 Shantabai. Thereafter, Dattatraya and his mother Shantabai went to bed and the appellant and deceased Sharmila went to the house of Laxman since they were residing there. Dattatraya has stated that on the next day in the morning, his mother had gone to the house of Laxman where the appellant and deceased Sharmila were sleeping. Dattatraya also went there and he saw the body of Sharmila lying on the cot. The appellant was not seen in the hut.

PW 3 Mahadeo was residing in the house in front of the house of PW 1 Shantabai. He has stated that at the time of the incident, the appellant and the deceased were living in the hut of Laxman. They were staying there since about eight days prior to the incident. Mahadeo has categorically stated that the deceased and the appellant had gone to the hut of Laxman that evening for sleeping. The deceased and the appellant were residing in the hut of Laxman during the period of 8-10 days since the hut of Laxman was vacant.

Thus, the evidence of PW 1 Shantabai, PW 2 Dattatraya and PW 3 Mahadeo shows that on the night of 17.1.2006, the appellant and the deceased went to sleep in the hut of Laxman. The evidence of these three witnesses taken together shows that no one else was residing in the hut of Laxman except the appellant and the deceased. These witnesses have stated that at night, the appellant and the deceased went to the hut of Laxman to sleep and in the morning, the appellant was not found in the house of Laxman and deceased Sharmila was found lying dead with ligature mark around her neck. In such case, Section 106 of the Evidence Act come into play.

Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underlies Section 106 of the Evidence Act can be applied in cases similar to the present one. In the case of State of Rajasthan Vs. Kashi Ram, AIR 2007 SC 144 : (2006) 10 JT 28 : (2006) 11 SCALE 440 : (2006) 12 SCC 254 : (2006) 9 SCR 501 Supp , the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain.

The prosecution has also proved the motive for the appellant to commit the murder of his wife Sharmila. PW 1 Shantabai and PW 2 Dattatraya have stated that the appellant used to suspect that his wife Sharmila was having illicit relations with some other person(s) and on this ground, the appellant used to harass and beat his wife Sharmila. The evidence of PW 3 Mahadeo who was residing in the house in front of the house of PW 1 Shantabai also shows that the appellant used to beat his wife Sharmila as he used to suspect her chastity. Thus, through the evidence of these three witnesses, the prosecution has also brought on record the motive for the appellant to commit the crime.

It is the prosecution case that the appellant strangulated his wife Sharmila and caused her death. This is supported by the medical evidence. PW 4 Dr. Pimpale conducted the postmortem on the dead body of Sharmila. During the postmortem, he found diffused abrasion over neck about 6 x 3 cms. on each side, blackish brown in colour with congested tissues underneath. On dissection of neck, the sub-cutaneous tissue was found congested with numerous petechial hemorrhage. The hyoid bone was found fractured. According to Dr. Pimpale, the cause of death was asphyxia due to constriction of neck.

On going through the record, we are of the opinion that the prosecution has proved beyond reasonable doubt that the appellant committed the murder of his wife Sharmila by strangulating her. Thus, we find no merit in the appeal. The appeal is dismissed.