Manoj Singh vs State of Maharashtra

V.K. Tahilramani, J—This appeal is preferred by the appellant -original accused against the judgment and order dated 28.6.2013 passed by the learned Ad-hoc Additional Sessions Judge, Sewree, Mumbai in Sessions Case Nos. 332 of 2012. 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. 2000/-, in default rigorous imprisonment for one year.

The prosecution case briefly stated, is as under:

(a) Deceased Laxmi was the daughter of PW 1 Mangilal. Mangilal used to reside along with his wife and children at Ambedkar Nagar No. 2, Near Himalay Provision Stores, Mankhurd (W), Mumbai. Mangilal had two sons and one daughter. Mangilal''s elder son Dashrath was residing at Amboli, Kalyan along with his wife and children. The daughter was deceased Laxmi. About 10-12 years prior to the incident, Laxmi got married to PW 4 Kayum. It was a love marriage. Kayum and Laxmi had three children. As Rukmini, the wife of Mangilal, was suffering from chest pain, Mangilal took her to Sailani Baba, Taluka Chikhali, Dist. Buldhana for treatment. Mangilal along with his wife and other son Shankar were residing at their native place since last about two years. Mangilal gave his room at Mankhurd to his daughter Laxmi to reside. The appellant was the friend of Kayum. After divorce took place between Laxmi and Kayum, Laxmi got married to the appellant. This was about two years prior to the incident. Laxmi along with the appellant and her three children from Kayum started residing in the room of Mangilal at Mankhurd. The appellant used to ply auto rickshaw and with the amount he earned, he used to maintain Laxmi and her three children.

(b) On 25.8.2011, Mangilal came to the house of Laxmi in Mankhurd. At that time, Laxmi told him that the appellant used to abuse her and beat her as he suspected that she had illicit relations with Kayum. On the very same day in the evening, Mangilal went back to Buldhana along with three children of Laxmi.

(c) On 28.8.2011, Mangilal received a phone call from his daughter Laxmi. Laxmi told him that the appellant was suspecting that she had illicit relations with Kayum and on this ground, the appellant was assaulting her. Laxmi requested Mangilal to come back immediately, hence, on 29.8.2011, Mangilal boarded a train to go to Mumbai. Early in the morning, he received a phone call from the appellant. The appellant informed him that he was going to Kanpur. Mangilal again contacted the appellant but he found that the cellphone of the appellant was switched off.

(d) Mangilal reached his house at Mankhurd at about 6.30 a.m. He found that the door was locked. He asked the neighbour for the keys of the house but the neighbours told him that the keys were not kept with them. Thereafter, Mangilal contacted his wife on phone. His wife advised him to break open the lock. Mangilal then went to PW 9 Sindhu and asked her for money to purchase hacksaw blade. He then purchased the hacksaw blade from a shop and broke open the lock on the door of his house. At that time, PW 2 Shyam was present. After Mangilal opened the door, he entered the house. Thereafter, in order to wash his hands, he proceeded towards bathing area. He noticed his daughter Laxmi in sitting condition near the bathing area. She was dead. On seeing this, Mangilal shouted. Neighbours gathered at the spot. Mangilal noticed that there were injuries on the neck and on the right hand of his daughter. He also noticed one lace lying near the bathing area. Upon inquiry with neighbours, Mangilal came to know that there were frequent quarrels between the appellant and the deceased. He also came to know that a quarrel had taken place between the appellant and the deceased on the earlier night at about 12.00 midnight. Thereafter, Mangilal sent PW 4 Kayum who was the neighbour of Mangilal to the Police Station. Police came to the spot. Then Mangilal lodged the F.I.R. Exh. 16. Thereafter, investigation commenced.

(e) The dead body of Laxmi was sent for postmortem. PW 3 Dr. Vathore conducted the postmortem on the dead body of Laxmi. The cause of death was found to be due to asphyxia with compression around the neck. 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 circumstances against the appellant are as under:-

i. Motive -Frequent quarrels used to take place between the appellant and Laxmi and even on 29.8.2011 i.e the date of the incident, quarrel took place between the appellant and Laxmi;

ii. The appellant and deceased Laxmi were the only persons residing in the house at the relevant time. On 30.8.2011 in the morning at about 7.00 a.m., the house was found locked. When the latch was opened with the help of hacksaw, the dead body of Laxmi was found in the house but the appellant was not seen anywhere;

iii. Extra judicial confession;

iv. The appellant was absconding and he was arrested on 6.1.2011 from Goa.

The first circumstance against the appellant is motive. PW 1 Mangilal, PW 2 Shyam, PW 4 Kayum and PW 9 Sindhu have deposed about this aspect. PW 1 Mangilal has stated that Rukmini was his wife. They had three children i.e two sons and one daughter. The elder son Dashrath was residing separately at Amboli, Kalyan along with his wife and children. Much prior to the incident, Mangilal was residing at Ambedkar No. 2, near Himalay Provision Stores, Mankhurd, Mumbai along with his wife Rukmini, son Shankar and Laxmi. About 10 years prior to the incident, his daughter Laxmi was married to PW 4 Kayum. Laxmi and Kayum had two sons and one daughter. Later on divorce took place between Kayum and Laxmi. When Kayum and Laxmi were residing together, the appellant was staying opposite the house of Kayum and he used to vist the house of Kayum. After Kayum left Laxmi, the appellant started residing with Laxmi along with her three children.

Mangilal has further stated that as his wife Rukmini was suffering from chest pain, he took her to Sailani Baba in Buldhana District for treatment. Mangilal, his wife and his son Shankar started residing at their native place at Sailani Baba since two years prior to the incident. His elder son Dashrath was residing separately at Amboli, Kalyan along with his wife and children. Mangilal gave his room at Mankhurd to his daughter Laxmi so that she could reside there. Laxmi resided with the appellant and her three children in the room of Mangilal at Mankhurd. Mangilal has stated that on 25.8.2011, he came to the house of Laxmi in Mankhurd. At that time, Laxmi told him that the appellant used to abuse her and beat her as he suspected that she had illicit relations with Kayum. On the very same day in the evening, Mangilal went back to Buldhana along with the three children of Laxmi.

Mangilal has stated that on 28.8.2011, he received a phone call from his daughter Laxmi. Laxmi told him that the appellant was suspecting that she had illicit relations with Kayum and on this ground, the appellant was assaulting her. Laxmi requested Mangilal to come back immediately, hence, on 29.8.2011, Mangilal boarded a train to go to Mumbai. While Mangilal was coming from Buldhana to Mumbai, he received a telephone call from the appellant early in the morning on his cellphone. The appellant told him that he was going to Kanpur. Mangilal again contacted the appellant but he found that the cellphone of the appellant was switched off.

Mangilal has further stated that he reached his house at Mankhurd at about 6.30 a.m. He found that the door was locked. He asked the neighbour for the keys of the house but the neighbours told him that the keys were not kept with them. Thereafter, Mangilal contacted his wife on phone. His wife advised him to break open the lock. Mangilal then went to PW 9 Sindhu and asked her for money to purchase hacksaw blade. He then purchased the hacksaw blade from a shop and broke open the lock on the door of his house. At that time, PW 2 Shyam was present. After Mangilal opened the door, he entered the house. Thereafter, in order to wash his hands, he proceeded towards bathing area. He noticed his daughter Laxmi in sitting condition near the bathing area. She was dead. On seeing this, Mangilal shouted. Neighbours gathered at the spot. Mangilal noticed that there was injury on the neck and on the right hand of his daughter. He also noticed one lace lying near the bathing area. Upon inquiry with neighbours, Mangilal came to know that there were frequent quarrels between the appellant and the deceased. He also came to know that a quarrel had taken place between the appellant and the deceased on the earlier night at about 12.00 midnight. Thereafter, Mangilal sent PW 4 Kayum who was the neighbour of Mangilal to the Police Station. Police came to the spot. Then Mangilal lodged the F.I.R.

Thus, the evidence of PW 1 Mangilal shows that his daughter Laxmi told him that the appellant was abusing her and assaulting her as he suspected her character. Laxmi also told him this fact on 25.8.2011 and 28.8.2011. This shows the motive for the appellant to commit the crime.

The next witness on the aspect of motive is PW 2 Shyam. Shyam has stated that he resided at Ambedkar Nagar No. 2 for 10 years. PW 1 Mangilal was his neighbour. Mangilal had one daughter by name Laxmi. Laxmi was married to one Kayum (PW 4) about 10 years prior to the incident. Laxmi had one son and one daughter from Kayum. Shyam has stated that Laxmi was residing with her father for last two years along with her children. She had left Kayum and had married the appellant. At the relevant time, the appellant was staying with Laxmi.

Shyam has further stated that in August 2011, the mother of Kayum expired. On 28.8.2011, it was 10th day of her death and some last rites were to take place. Shyam attended that programme along with neighbours. Laxmi also attended the said programme. Laxmi went back to her house at 10.30 p.m. Thereafter, quarrel took place between the appellant and Laxmi. The appellant was suspecting that Laxmi had illicit relations with Kayum. Kayum was also then residing in the same locality. Shyam has stated that at the time of the incident, Mangilal -the father of Laxmi had gone to his native place. On the next day of the quarrel between Laxmi and the appellant, her father i.e PW 1 Mangilal had come to Mumbai. As the door was locked, he broke open the lock and entered the house. He found that Laxmi was lying dead in the house. The appellant was not seen anywhere.

The next witness on the point of motive is PW 4 Kayum. Kayum has stated that he was residing at Ambedkar Nagar No. 2, Himalay Provision Stores Galli, Mankhurd (W), Mumbai since his childhood. He knew the complainant Mangilal (PW 1) as he stayed in the house adjacent to the house of Mangilal. Laxmi was the daughter of Mangilal. Kayum has stated that he was married to Laxmi about 10-12 years ago. It was a love marriage. Laxmi had two sons and one daughter from him. Kayum knew the appellant as the appellant was previously residing in the same area. Two years prior to the incident, Kayum left Laxmi because she had developed intimacy with the appellant. After Kayum left Laxmi, she started residing with her father. In her father''s house, Laxmi, her father, her mother, the appellant and three children of Laxmi were staying together.

Kayum has further stated that on 25.8.2011, Mangilal had come to Laxmi''s house and he took Laxmi''s children and went to his native place. On 28.8.2011, when Laxmi returned home, quarrel took place between the appellant and Laxmi. The appellant then assaulted Laxmi. Kayum tried to pacify the quarrel but it was of no use. On 29.8.2011, Shyam (PW 2), a fried of Kayum, had stayed in the house of Kayum as they had come to attend last rites of Kayum''s mother. Kayum has stated that Laxmi had come to his house at 9.00 p.m. in order to have dinner. At that time, the appellant was sitting in the house of Laxmi. Laxmi went back to her house at about 9.30 p.m. At about 11.00 p.m., Kayum noticed that a quarrel took place between the appellant and Laxmi. Laxmi called Kayum and Shyam, hence, Kayum went to the house of Laxmi. He again pacified the appellant. At about 12 midnight, Kayum came back and went to sleep.

Kayum has further stated that on 30.8.2011, Mangilal - the father of Laxmi came back to Mumbai along with Laxmi''s children, however, he found that there was lock on the door of Laxmi. Mangilal then bought hacksaw blade and broke open the lock. Mangilal entered the house and came out shouting, hence, Kayum went to the house of Laxmi. He saw that Laxmi was lying near the bathing area. They searched for the appellant but he was not found anywhere.

PW 9 Sindhu is the last witness on the point of motive. Sindhu was residing in the same area where the appellant was residing along with Laxmi (i.e in the house of PW1 Mangilal). Sindhu has stated that on 30.8.2011 at about 7.00 a.m., Mangilal (PW 1) came to her and asked her to lend him Rs. 30/- as he wanted to purchase hacksaw blade to break open the lock of his house as he did not have a key. She knew Mangilal because Mangilal was earlier selling onion and potatoes and she was selling vegetables and they used to sit side by side in the market. Sindhu has stated that after sometime, Mangilal came back. He was weeping and he told her that his daughter was lying unconscious near bathing area in his hut. Sindhu has stated that Mangilal told her that he had received a call from the appellant on his cellphone that he was going out of Mumbai. They searched for the appellant but they could not find him. Sindhu has further stated that she had seen the appellant having quarrels with Laxmi and assaulting Laxmi.

Thus, the evidence of above witnesses i.e PW 1 Mangilal, PW 2 Shyam, PW 4 Kayum and PW 9 Sindhu shows that frequent quarrels used to take place between the appellant and the deceased. On 30.8.2011, Laxmi was found dead in the house with injury on her person and the previous night, a quarrel had taken place between the appellant and Laxmi.

The evidence on record shows that the appellant and Laxmi were the only two persons residing in the house at the relevant time. On 30.8.2011, the house was found locked. When the lock was broken open, the dead body of Laxmi was found in the house and the appellant was not found anywhere. The evidence of PW 1 Mangilal shows that the appellant and the deceased were the only two persons residing in the house at the relevant time. Mangilal has stated that Laxmi was his daughter. She was earlier married to Kayum. Laxmi had three children from Kayum. Thereafter, Kayum left Laxmi. Mangilal has further stated that as his wife Rukmini was suffering from chest pain, he took her to Sailani Baba in Buldhana District for treatment. Mangilal, his wife and his son Shankar started residing at their native place at Sailani Baba in Buldhana since two years prior to the incident. The elder son Dashrath was residing separately at Amboli, Kalyan along with his wife and children. Mangilal gave his room at Mankhurd to his daughter Laxmi so that she could reside there. Laxmi resided with the appellant and her three children in the room of Mangilal at Mankhurd. Mangilal has stated that on 25.8.2011, he came to the house of Laxmi at Mankhurd. At that time, Laxmi told him that the appellant used to abuse her and beat her as he suspected that she had illicit relations with Kayum. On the very same day in the evening, Mangilal went back to Buldhana along with three children of Laxmi. Thus, the evidence of Mangilal shows that at the relevant time, only the appellant and Laxmi were residing in the house of Mangilal at Mankhurd.

The evidence of PW 2 Shyam also shows that only the appellant and Laxmi were residing in the house at the relevant time. Shyam has stated that Mangilal was his neighbour. Laxmi was married to one Kayum about 10 years ago. Laxmi left Kayum and married the appellant. Since two years prior to the incident, Laxmi was residing in her father''s house along with the appellant and her three children. Shyam has stated that on 28.8.2011, Laxmi had attended the programme relating to funeral rites of mother of Kayum. Laxmi returned to her house at 9.30 p.m. Shyam has categorically stated that the appellant was residing with Laxmi at that time. Shyam has further stated that a quarrel took place between Laxmi and the appellant as the appellant was suspecting that Laxmi had illicit relations with Kayum. The evidence of Shyam shows that the next morning, Laxmi was found dead in the house with injuries on her person which were noticed after the lock on the door was broken open.

The evidence of PW 4 Kayum also shows that the appellant and Laxmi were the only persons residing in the house of Mangilal. He has stated that he was married to Laxmi about 10-12 years prior to the incident. Laxmi had two sons and one daughter from him. He knew the appellant because the appellant was residing in the same area. Two years prior to the incident, he left Laxmi because she had developed intimacy with the appellant. After he left Laxmi, she started residing with her father in her father''s house. Laxmi, her father, her mother, the appellant and Laxmi''s three children continued to reside in the house of Mangilal. After some days, Laxmi''s parents went to their native place, however, Laxmi, the appellant and her three children continued to reside in the house of Mangilal. On 25.8.2011, Mangilal -the father of Laxmi had come to Mumbai. He took three children of Laxmi to his native place. On 29.8.2011 at about 9.00 p.m., Laxmi had come to the house of Kayum to have dinner in relation to the last rites of the mother of Kayum. Laxmi went back at about 9.30 p.m. At about 11.00 p.m., Kayum noticed quarrel took place between the appellant and Laxmi. Laxmi called Kayum and Shyam. Kayum then went to the house of Laxmi and pacified the appellant. Kayum returned back to his house at about 12 midnight. The next morning, the house where the appellant and Laxmi were residing was found locked and after the lock was broken open, the dead body of Laxmi was found in the house.

Thus, the evidence of PW 1 Mangilal, PW 2 Shyam and PW 4 Kayum shows that the appellant and the deceased were the only two persons residing in the house at the relevant time, in such case, the appellant has to explain how the deceased sustained injuries and died. In this connection, we may refer to Section 106 of the Evidence Act. 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 such cases. 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 next circumstance against the appellant is extra judicial confession. PW 6 Rishi who was the friend of the appellant has stated about it. Rishi has stated that on 4.9.2011, the appellant came to meet him. The appellant was residing with him from 4.9.2011 to 12.9.2011. Some days after the appellant came to the house of Rishi, Rishi while watching television, came across a news item that one Manoj Kumar Soni killed his wife at Mankhurd and had absconded. On that day, the appellant came back to the house of Rishi very late in the night. Rishi asked the appellant about the news. At that time, the appellant told him that a quarrel took place between him and his wife and he had assaulted his wife. The appellant further told Rishi that he was going to Kanpur the next day and not to worry.

The last circumstance against the appellant is that he absconded immediately after the incident and he was arrested only on 6.11.2011. The evidence of PW 1 Mangilal, PW 2 Shyam, PW 4 Kayum and PW 9 Sindhu shows that on 30.8.2011, the house where the appellant and Laxmi were residing was found locked. On breaking open the lock, the dead body of Laxmi was found in the house with injuries on her person and the appellant was not found anywhere. The evidence of PW 10 P.I. Kadam shows that the appellant was arrested on 6.11.2011 from Goa. This conduct of the appellant of absconding also points out towards his mens rea.

It is the prosecution case that the appellant strangulated and caused the death of his wife Laxmi with a piece of lace which was found at the spot. PW 1 Mangilal has stated that when the door of the house where the appellant and Laxmi were residing was broken open, he noticed his daughter Laxmi lying dead near the bathing area. He also noticed one lace lying near the bathing area. PW 5 API Shinde has also deposed that during the spot panchnama, one piece of lace was found lying near the feet of Laxmi. The said piece of lace was seized. PW 3 Dr. Vathore conducted the postmortem on the dead body of Laxmi. On external examination, he found the following injuries:-

i. Tiny contusion at the left angle of upper lip;

ii. Depressed contusion on the neck, 15 cms x 1 cm, broad on and above thyroid cartilage;

iii. Contusion mark on right side cheek 1 cm x 1 cm;

iv. Contusion of the left side below ligature mark 1 cm x 1cm;

v. Laceration on the right palm at dorsal aspect. Skin was lost, bone exposed from wrist to knuckle;

vi. Contusion at the base of thumb on palm 2 cms x 2 cms;

vii. Irregular multiple contusion on dorsal aspect of the middle and ring finger;

viii. Contusion on the right elbow joint 1 cm x 1 cm;

ix. Contusion 1/4 cm x 1/4 cm on the left ring finger at 2nd carpal.

Dr. Vathore also found the following internal injuries:-

i. Contusion under the scalp 2 cms x 2 cms at the center of parietal region;

ii. Congestion and contusion of larynx seen on the tracheal side;

iii. Contusion on trachea at laryngeal region 2 cms x 2cms both lungs were congested.

According to Dr. Vathore, the cause of death was due to asphyxia with compression around neck. It was manual compression of neck. The death was unnatural and all injuries were ante-mortem. In the opinion of Dr. Vathore, the death was possible if neck was pressed by means of lace Article 1. Dr. Vathore has categorically stated that the injuries cannot be self inflicted. Thus, the medical evidence also corroborates the prosecution case.

Looking to the facts and circumstances of this case and the evidence on record, we are of the opinion that the prosecution has proved its case against the appellant beyond reasonable doubt. Thus, we find no merit in the appeal. The appeal is dismissed.

Office to communicate this order to the appellant who is in jail.

We quantify legal fees to be paid by the High Court Legal Services Committee to the appointed Advocate Ms. Rohini M. Dandekar at Rs. 5000/-.