Mangla vs State of Maharashtra

M.L. Tahaliyani, J.—Heard. ADMIT. Heard finally by consent of the parties.

The applicants are accused of the offences punishable u/s 302 read with Section 34 and 201 read with Section 34 of the Indian Penal Code in Sessions Trial No. 70 of 1999 pending in the Court of Additional Sessions Judge, Akola. Applicant Nos. 1 and 2 are accused Nos. 5 and 4 respectively in the said chargesheet. Accused Nos. 1, 2 and 3 are brothers and they are residents of Adarsh Colony, Gorakshan Road, near clinic of Dr. Nikte at Akola. Accused No. 1 Omprakash is husband of accused No. 5 Mangaladevi, accused No. 2 Jaiprakash is husband of accused No. 4 Ashadevi and accused No. 3 Shivprakash was husband of the deceased.

The applicants had applied for discharge. Their application has been rejected by the learned trial Court. However, this Court in criminal Revision Application No. 115 of 2005 (Coram: A.B. Chaudhari, J.) on 5th April, 2010 allowed the Criminal Revision Application filed by three brothers and set aside the order passed by Sessions Judge refusing to discharge accused Nos. 1, 2 and 3. As such the accused Nos. 1, 2 and 3 stood discharged. The accused Nos. 4 and 5 (applicants) are facing trial.

Accused Nos. 1, 2 and 3, the applicants and the deceased were staying at one and the same address in a three storied building. The dead body of the deceased was found in store room on third floor of the building. The matter was reported to police by accused No. 3, husband of the deceased. Initially, accidental death was registered vide accidental death No. 131 of 1998 and inquiry was initiated u/s 174 of the Code of Criminal Procedure. However, the Medical Officer had reported that the deceased had died due to shock due to fracture shaft femur right with contusion on right parietal hemisphere with conjunctival haemorrhage in right eye. As such the post mortem report was not consistent with the story of accidental or suicidal death. Therefore, the first information report was lodged by P.I. Shukla and an offence was registered vide Crime No. 585 of 1999 against accused Nos. 1, 2 and 3 and also the applicants.

The incident had occurred on 9th December, 1998 and First Information Report appears to be registered on 9th March, 1999. After completion of investigation it was alleged that accused Nos. 1, 2 and 3 and the applicants, in furtherance of their common intention, had committed murder of the deceased and had tried to cause disappearance of evidence with intention to screen the offenders. It appears that accused Nos. 1, 2 and 3 were discharged by this Court because they were not present at home at the time of the alleged incident. It is noted that when the discharge application was made on behalf of accused Nos. 1 to 3 the present applicants, though female members of the family, did not move the learned trial Court.

The applicants moved the trial Court by filing an application Exh.186 for discharge. The said application has been rejected by the trial Court. Therefore, the present revision application has been filed by the applicants. It was contended before the trial Court that there was no evidence at all of any nature connecting the applicants with the alleged crime. It was submitted before the trial Court that there were no allegations of ill-treatment against the present applicants. The contention of the applicants before the trial Court was that even if the whole chargesheet is accepted to be true and correct, there were absolutely no chances of conviction and therefore, the applicants were entitled for discharge. The respondents/State, however, submitted before the trial Court that the death was caused due to shock due to fracture shaft femur right with contusion on right parietal hemisphere with conjunctival haemorrhage in right eye. It was brought to the notice of the learned trial Court that the burn injuries were post-mortem. The respondents, therefore, contended before the trial Court that the deceased was killed before her body was set on fire.

It is admitted position that the applicants were at home at the time of the incident. Though the incident in question had occurred on third floor of the building, the applicants and the deceased were in the same premises. Had it been reported by the Medical Officer that the deceased had died due to burn injuries, the story would have been different. However, the Medical Officer''s report that the deceased had sustained injuries before her dead body was set on fire, clearly indicates that the deceased was set on fire after she was killed. From the material on record it is indicated that nobody could have reached third floor (store room on terrace) without knowledge of the applicants. Therefore, it can be said that it was within the knowledge of the applicants as to how the deceased had died. The burden in such cases lies upon the accused to explain the things specially within the knowledge of the accused.

Learned counsel Shri Shashank Manohar has submitted that though Section 106 of the Indian Penal Code casts burden upon the accused, the prosecution cannot run away from the legal position that primarily, it is duty of the prosecution to establish the charge against the accused.

After having gone through the chargesheet and statements of the witnesses, I have come to a conclusion that there is sufficient material on record to say that the deceased was in custody of the applicants and it was for the applicants to explain as to how the deceased had died. It is for the trial Court to decide on the basis of the evidence, which may come on record, as how much burden the applicants were required to discharge. As of today, it cannot be said that the applicants have been chargesheeted simply because they were in the premises. There are circumstances to indicate that the applicants did not bother to find out the whereabouts of the deceased. In such a set of circumstances, it is possible for the trial judge to draw adverse inference against the applicants and hold that this one circumstance is indicative of the fact that the applicants are prima-facie guilty of the offences punishable u/s 302 read with Section 34 and 201 read with Section 34 of the Indian Penal Code. Minute dissection of the facts of the case at this stage is not permissible. No case was made out for discharge. The order passed by the learned trial Judge does not call for any interference.

The revision application stands dismissed.