Ramchandra Appa Kandhare vs The State of Maharashtra

V.K. Tahilramani, J.—The appellant original accused has preferred this Ladda appeal against the judgment and order dated 28th July, 2007 passed by the learned Additional Sessions Judge, Kalyan in Sessions Case No. 116 of 2005. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to imprisonment for life and fine of Rs. 1000/- in default RI for six months.

The prosecution case, briefly stated, is as under :

The appellant was married to PW 4 Ranjana. They had one son Abhishek and daughter Pooja (deceased). At the time of the incident, Pooja was about 16 years of age and Abhishek was about 10 years of age. The appellant, his wife Ranjana and their children were residing at Bhoir Chawl, Kalyan. Ranjana was working as a maid servant. On 3rd February, 2005 Ranjana had gone to wash utensils at the place where she was working as maid servant. She returned to home at about 1.45 p.m. She found her daughter Pooja was lying on the floor. Her husband i.e. the appellant was found sitting on the cot. Pooja told Ranjana to come home early after her work is finished. Ranjana then left the house and returned home at about 3:00 p.m. She found that there was lock on the door of the house. Ranjana again went to work thinking that Pooja was sleeping inside the house. When Ranjana returned home at about 6:00 p.m. she found that the house was still locked. Abhishek returned from school and after seeing that the house was locked, he went to play. Ranjana waited for some time for her husband to come home. Thereafter, with the help of her neighbour she broke open the lock on the door. The neighbour left after the lock was broken open. When Ranjana entered the house she found Pooja lying down in the house. Ranjana removed the blanket from the person of Pooja. She noticed that Pooja was lying in a pool of blood and Pooja was dead. Ranjana shouted whereupon neighbours gathered. Ranjana found that Pooja was lying on the abdomen and she had sustained injury on her head on the back side. Blood was oozing from the injury. Blood had clotted. Immediately thought came to Ranjana''s mind that her husband had done this. Police came to the spot then FIR of Ranjana came to be recorded. Thereafter, investigation commenced. After completion of investigation charge sheet came to be filed. In due course, the case was committed to the Court of Session.

Charge came to be framed against the appellant under Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is 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 A.P.P. for the State. We have carefully considered their arguments, the judgment and order passed by the learned Sessions Judge and the record in this case. After carefully considering the matter for the below mentioned reasons, we are of the opinion that the appellant assaulted his daughter Pooja with a grinding stone on her head and caused her death.

There is no eye witness in the present case and the case is based entirely on circumstantial evidence. The circumstances against the appellant are as under :

(i) The appellant and the deceased Pooja were in the house at about 1:45 p.m. Thereafter, the house was found locked. On breaking open the lock it was found that Pooja was lying dead with injuries on her person and the appellant was not found in the house.

(ii) The appellant was arrested after about eight days i.e. on 11th February, 2005 that is he absconded soon after the crime.

(iii) The key of the lock of the house was recovered at the instance of the appellant.

(iv) The grinding son was recovered at the instance of the appellant and the grinding stone had blood stains on it.

(v) Motive.

The learned Advocate for the appellant submitted that in cases of circumstantial evidence, motive assumes great importance and the prosecution has not proved the motive in this case. As far as motive is concerned, we may refer to the decision of the Supreme Court in the case of Mulakh Raj, etc. Vs. Satish Kumar and others, . In the said case, it is observed by the Supreme Court in para No. 10 thereof which is reproduced hereinbelow : -

"Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non -existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never indispensable for conviction. When facts are clear it is immaterial that no motive has been proved."

However, it is seen that though the prosecution may not have brought on record the motive for the appellant to commit the crime, through the evidence of PW 5 Tarabai the prosecution has brought on record the intention of the appellant to do away with Pooja. Tarabai has stated that two days prior to the incident, the appellant had come to her house. At that time the appellant told Tarabai that he has to do away with Pooja then only he will get peace. Thereupon, Tarabai asked the appellant why he uttered such words. The appellant replied that she will come to know after he has done so. The incident occurred two days thereafter. This shows the intention of the appellant to do away with Pooja.

As far as the first circumstance is concerned, PW 4 Ranjana has deposed about deceased Pooja being the appellant''s and her daughter. Pooja was aged about 16 years at the time of the incident. At the time of the incident, Pooja was residing along with her brother Abhishek aged about 10 years and her parents i.e. Ranjana and the appellant at Bhoye Chawl, Kalyan. Ranjana was working as a maid servant and she used to do the work of cleaning clothes and utensils in the houses of others. PW 4 Ranjana has stated that on the day of the incident she had gone to the house of other people for the work of cleaning utensils. She returned home at about 1:45 a.m. She found her daughter lying on the floor and the accused was sitting on the cot. Pooja told Ranjana to come back earlier if her work is finished. Then Ranjana went back to work. Ranjana returned home at about 3:00 p.m. and saw that the house was locked from outside. Ranjana again left for work thinking that Pooja is sleeping and hence, the appellant had locked the door. Ranjana returned home at 6:00 p.m. and she found that the house was still locked. Ranjana then waited for her husband (appellant) to come home. Thereafter, with the help of her neighbour she broke open the lock and entered the house. When she entered inside she saw Pooja lying down with a blanket on her person. When Ranjana removed the blanket, she saw that her daughter Pooja was lying dead in a pool of blood with injuries on her head.

Thus, the evidence of Ranjana shows that the deceased was last seen together with the appellant at about 1:45 p.m. in the house. At that time only the appellant and the deceased were in the house. In such case Section 106 of the Evidence Act would be attracted. In such case, the appellant has to explain how the deceased sustained injuries and died. 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 of last seen. In the case of State of Rajasthan Vs. Kashi Ram, , 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.

The appellant has not furnished any explanation in relation to the above facts. Moreover, the appellant has not furnished any explanation why he left the house suddenly and disappeared. The appellant came to be arrested on 11th February, 2005 i.e. after eight days of the incident. He was arrested in Manor District Thane. This conduct on the part of the appellant also shows his mens rea.

The evidence of PW 4 Ranjana shows that on the day of the incident at 1:15 pm her daughter deceased Pooja and the appellant were in the house. When she returned home at 3:00 p.m. and she found the door was locked. She went back to work and returned back at 6:00 p.m. and found that door was still locked. She then broke the lock on the door with the help of a neighbour and found that Pooja was lying dead inside the house with injuries on her person. It is pertinent to note that the key to the said lock has been recovered at the instance of the appellant. PW 3 is the panch witness who has deposed about this aspect. He has stated that the appellant made a statement that he would show the grinding stone and one key. The appellant then produced the grinding stone and one key which were seized under panchnama.

Mr. Apte submitted that there is no evidence to show that the key belongs to the same lock which was on the door of the house of Ranjana. He submitted that in such case there is no link to show that the key was of the lock which was on the door of the house of Ranjana and the appellant. As far as this aspect is concerned, the evidence of PW 4 Ranjana clearly shows that the lock was broke open. The spot panchnama also shows that a broken lock was found at the spot which seems to have been hammered upon. Obviously, when the lock was in such a damaged condition it would not have been possible to check whether the key pertained to the same lock. However, evidence of PW 4 Ranjana makes things quite clear. Ranjana has stated that article 3 is the same lock which was on her door and article 15 is the same key of the lock She has identified lock as well as the key. The fact that the key was recovered at the instance of the appellant, is a strong incriminating circumstance against the appellant.

It is the prosecution case that the grinding stone was also recovered at the instance of the appellant. PW 3 panch witness Matin has deposed on this aspect. The CA report shows that the grinding stone was stained with human blood. In this connection, we may usefully refer to the decision of the Supreme Court in the case Gura Singh Vs. The State of Rajasthan, , wherein it has been observed as under :

"In view of the authoritative pronouncement of this Court in State of Rajasthan Vs. Teja Ram and Others, we do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the ''origin of the blood, the trial Court could not have convicted the accused. The Serologist & Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant."

Mr. Apte then submitted that the grinding stone was about 13. 1/2 x 10 inches in length. In such case when the appellant carried it, his clothes would have got stained with blood, however, when the clothes of the appellant were sent to CA, as per CA report Exh. 40 no blood stains were found on the said clothes. Mr. Apte submitted that while carrying the blood stained stone some blood would have fallen on the clothes of the appellant and the fact that no blood was found on the clothes of the appellant shows that he had nothing to do with the offence.

As far as the above aspect is concerned, it is to be noted that the incident took place on 3rd February, 2005 and the appellant was arrested eight days thereafter on 11th February, 2005. Obviously, during the period from 3rd February to 11th February the appellant could have easily washed his clothes, hence, no blood stains would be found on his clothes when they were seized from his person on 11th February. The appellant would obviously not move around with blood stained clothes for a period of about 8 days. Thus, we find no merit in this submission.

Thereafter, Mr. Apte argued that though according to the prosecution the grinding stone was recovered at the instance of the appellant, the counter part of the grinding stone was not found in the house. He pointed out that the spot panchnama makes no mention about finding of counter part of the grinding stone in the house. This according to him showed that the entire prosecution case is false. As far as this submission is concerned the spot panchnama clearly mentions that towards the western wall there was an ota for cooking and on it gas and other household articles were found. It is also stated that in the room other articles which were ordinarily used in day to day life like vessels etc. were found. Thus, it is seen that the spot panchnama does not bear out the argument of Mr. Apte that no counter part of the grinding stone was found in the house. It is not expected that in the spot panchnama each and every article found in the house has to be mentioned. A general mention of household articles has been made in the spot panchnama and in our view this is enough.

Mr. Apte then submitted that case should be remanded back to the trial Court because the accused had made an application before the trial Court for examining defence witnesses and without considering the said application preferred by the appellant the trial Court decided the trial and passed the impugned judgment and order. In this connection, we have perused the record pertaining to this case. The record shows that when the statement of the accused under Section 313 of Cr.P.C. was recorded, at that time, the Advocate for the appellant preferred an application before the Trial Court vide Exh.42 for taking out summons to the witness. This was on the very same day when the statement of the appellant was recorded under Section 313 of Cr.P.C. i.e. on 13th October, 2006. Thereafter the matter was adjourned to 31st October, 2010 and thereafter to 9th November, 2006. On 9th November, 2006 pursuant to the summons the witness proposed to be examined by the appellant was present before the Court. However, the advocate for the appellant gave an application on that day that is 9th November that he does not wish to examine the said witness. Pursuant to the said application the witness who was present came to be discharged. The learned Advocate for the appellant then sought time to give a fresh list of witnesses whom he proposes to examine as defence witnesses. The matter was then adjourned to 16th November, 2006. On that day, learned Advocate for the applicant remained absent. On the next day i.e. 21st November, 2006 the learned Advocate for the appellant sought further time to produce the list of witnesses whom he proposed to examine as defence witnesses. On 24.11.2006 vide Exh.46 the learned Advocate for the applicant prayed for summons to be issued to the persons mentioned in his application. Accordingly, summons came to be issued. The matter was then adjourned to 2nd December, 2006.

On 2nd December, 2006 the summons report was received seeking time to serve the witnesses. Accordingly, time came to be granted. On the next date i.e. 13th December, 2006 learned Advocate for the appellant remained absent. Hence, the matter was adjourned to 4th January, 2007 to examine defence witness. On 4th January, 2007 the learned Advocate for the appellant sought adjournment and on his request matter was adjourned to 16th January, 2007 for examining defence witnesses. On 16th January, 2007 the learned Advocate for the appellant again sought adjournment to examine defence witnesses. The said application was allowed and the matter was adjourned to 5th February, 2007. Again on 5th February, 2007 the learned Advocate for the appellant sought adjournment vide application Exh.52. In the said application it is stated that the defence witness Sahid Osman Abdul Rahim could not remain present on that day as he was busy in the marriage of his close relative. Hence, it was prayed that fresh summons be issued to the witness. Prayer of the learned Advocate for the appellant came to be allowed and the matter was adjourned to 12th February, 2007.

On 12th February, 2007 the defence witness was present but he was not examined. The matter was then adjourned to 22nd February, 2007. On that day the defence witness did not remain present. The matter was then adjourned to 6th March, 2007. On that day also no defence witness was present, hence, the matter was adjourned to 12th march, 2007. On 12th March, 2007 the learned Advocate for the appellant preferred an application Exhibit 55 before the trial Court whereby he sought adjournment of the case. Accordingly, matter was adjourned to 20th March, 2007. On 20th March, 2007 learned Advocate for the appellant made an application (Exh.57) for adjournment to examine defence witness as according to him, the defence witness was not present due to unavoidable circumstance. Hence, on the request of the learned Advocate for the appellant the matter was adjourned to 26th March, 2007. On 26th March, 2007 the learned Advocate for the appellant made an application Exh.58 wherein it was stated that the defence witness could not be examined as he was not present on the given address, therefore, adjournment was sought. Pursuant to the request, matter was adjourned to 2nd April, 2007. On 2nd April, 2007 again the learned Advocate for the appellant made an application for adjournment. Accordingly, the matter was adjourned to 9th April, 2007 for examining defence witness. On 9th April, 2007 the learned advocate for the appellant again made an application for adjournment to examine defence witness. Hence, the matter was adjourned to 16th April, 2007.

Again on 16th April, 2007 the learned Advocate for the appellant made an application for adjournment to examine defence witness which came to be allowed and the matter was adjourned to 23rd April, 2007. On 23rd 2007 also no defence witness was present and the matter was adjourned to 3rd May, 2007 to examine defence witness. On 3rd May, 2007 the learned Advocate for the appellant did not remain present before the trial Court and the matter was adjourned to 7th May, 2007. On 7th May, 2007 extension was sought, hence, the matter was adjourned to 27th May, 2007. On 22nd May, 2007 the learned Advocate for the appellant did not remain present. No witness was also present on that day and the matter was adjourned to 29th May, 2007. On 29th May, 2007 again no defence witness was present, hence, the matter was adjourned to 13th June, 2007. On 13th June, 2007 no defence witness was present, hence, the learned advocate for the appellant was given understanding that he has to ensure that the defence witness remained present on the next date and the matter was adjourned to 26th June, 2007.

On 26th June, 2007 the learned advocate for the appellant did not remain present and the matter was kept for arguments on 27th June, 2007. Thus, it is seen from 13th October, 2006 to 26th June, 2007 time was granted by the trial Court to the appellant/accused to examine defence witness but despite time of more than eight months being granted no defence witness was examined. Hence, on 26th June, 2007 the trial Court posted the matter for argument and the matter was adjourned to 27th June, 2007. On 27th June, 2007 learned advocate for the appellant preferred an application for adjournment which came to be granted and the matter was adjourned to 30th June, 2007. On 30th June, 2007 again the learned Advocate for the appellant preferred an application (Exh.63) for adjournment which came to be allowed and the matter was adjourned to 2nd July, 2007. On 2nd July, 2007 the Public Prosecutor argued the case and the matter was adjourned to next day i.e. 3rd July, 2007 for hearing the argument of the learned Advocate for the appellant.

On 3rd July, 2006 the learned Advocate for the appellant stated that as the accused was not produced she did not wish to argue the matter in his absence. Hence, the matter was adjourned to 4th July, 2007. On 4th July, 2007 the matter could not be taken up as the Court was busy in some other matter, hence, the matter was adjourned to the next date i.e. 5th July, 2007. On 5th July, 2007 the learned Advocate for the appellant remained absent, hence, the matter was adjourned to 7th July, 2007. On 7th July, 2007 Court was on leave and the matter came to be adjourned to 9th July, 2007 for hearing the argument of the learned Advocate for the appellant. On 9th July, 2007 the learned Advocate for the appellant preferred an application for adjournment vide Exh.64 which came to be allowed and the matter was adjourned to 10th July, 2007. On 10th July, 2007 the learned Advocate for the appellant argued the matter and also handed over list of authorities. The matter was then adjourned to 13th July, 2007. Ultimately, on 27th July, 2007 judgment and order came to be delivered by the trial Court.

Thus, it is seen that sufficient time was given to the appellant to produce defence witness. However, no defence witness was produced by him despite sufficient time and opportunity being granted to him. Firstly, eight months time was granted from 13th October, 2006 to 26th June, 2007 to the appellant to examine defence witness but no defence witness was examined. Thereafter also on request of the advocate for the appellant adjournments were granted on 27th June, 2007, 30th June, 2007 and 9th July, 2007. On 26th June, 2007 the case was adjourned to 27th June, 2007 for arguments at that time or thereafter no prayer for adjournment was made to examine defence witnesses. It clearly appears that the appellant had given up his prayer to examine defence witness. If he had really wanted to examine the defence witness he would have made the said prayer on the next date i.e. 27th June, 2007. However, it is seen that from 27th June, 2007 onwards till the final judgment was pronounced on 20th July, 2007 no application was made on behalf of the appellant to examine defence witness. It is seen that on 10th July, 2007 the advocate for the accused argued the matter without seeking any adjournment to examine defence witness. Thus, it is clear that the appellant gave up his prayer to examine defence witness. In any event, we find that the trial Court had granted sufficient time and opportunity of more than eight months to examine defence witness which was not availed of by the appellant. The trial Court is not supposed to wait indefinitely for the accused to examine defence witness. After giving sufficient time and opportunity the trial Court has rightly proceeded to the next step that is hearing of arguments of both sides. In view of the facts stated above, we see no reason to remand the matter back to the trial Court to examine defence witness.

On going through the record, we find that there is sufficient evidence to show beyond reasonable doubt that the appellant committed murder of his daughter Pooja. Thus, we find no merit in the appeal. The appeal is dismissed.

We quantify legal fees to be paid to Mr. Apte, Advocate appointed by the High Court Legal Services Committee in this appeal at Rs. 5000/-.