M.G. Giratkar JUDGMENT
M.G. Giratkar, J.
1. Appellant has assailed the Judgment of conviction awarded by the Sessions Judge, Gadchiroli for the offence punishable under Section 302 of the Indian Penal Code. By the said Judgment, the appellant was sentenced to suffer life imprisonment and to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for six months.
2. The case of prosecution against the appellant, in short, is as under :
Deceased Shyamlata was wife of the appellant. Appellant married with deceased 11 years before the incident. Appellant was addicted to liquor and was not doing any work. He was residing along with his wife at the house of his father-in-law. Appellant was always beating deceased and quarrelling with her. Therefore, the father-in-law directed the appellant to reside separate with the deceased.
3. Appellant started residing separately with his deceased wife. On the day of incident, appellant beat deceased by fist and kick blows and thereafter, he assaulted her by stone on her head. Deceased was unconscious. Thereafter, appellant poured kerosene and set her on fire. Monabai Suleram Lakda (PW-3) and Yashodabai Namdeo Kowachi (PW-4) witnessed the incident.
4. Monabai Lakda (PW-3) went to the house of father of deceased and informed him immediately. Madhukar Naktuji Sojirwar (PW-1), father of deceased went to the house of appellant. He found that the deceased was writhing in pain due to burning. Immediately he took her to the hospital at Gadchiroli. The Medical Officer examined and declared her brought dead.
5. Father of deceased namely Daulu Gosavi Kowachi (PW-2) lodged report in Police Station, Gadchiroli. Crime was registered against the appellant. PSI Nitin Ashok Kame (PW-9) investigated the crime. He went to the spot of incident, prepared spot panchanama and inquest panchanama, arrested the accused, recorded statement of witnesses and after complete investigation, filed charge sheet before the Judicial Magistrate, First Class, Gadchiroli. Same was committed for trial to the Sessions Court.
6. Charge was framed at Exh. 4 for the offence punishable under Section 302 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried. From the cross-examinations of witnesses, it appears that the defence of appellant is of total denial. It is the defence of the appellant that deceased was under the influence of liquor. She fell down on a burning lamp and therefore, she died.
7. Prosecution has examined following ten witnesses :
a. Madhukar Naktuji Sojirwar (PW-1) (Exh. 8).
b. Daulu Gosavi Kowachi (PW-2) (Exh. 12).
c. Monabai Suleram Lakda (PW-3) (Exh. 15).
d. Yashodabai Namdeo Kowachi (PW-4) (Exh. 16).
e. Anandrao Kanhuji Meshram (PW-5) (Exh. 21).
f. Bhaskar Yeshwant Ramteke (PW-6) (Exh. 24).
g. Vijay Narayan Sedmake (PW-7) (Exh. 27).
h. Pooja Nandkishore Wagh (PW-8) (Exh. 33).
i. Nitin Ashok Kame (PW-9) (Exh. 37).
j. Dr. Jitendra Newaji Gedam (PW-10) (Exh. 41).
8. Statement of appellant was recorded under Section 313 of the Code of Criminal Procedure. He has denied material incriminating evidence against him. But he did not give any explanation as to how his wife died. After hearing prosecution and defence, learned Sessions Judge has convicted the appellant, as aforesaid.
9. Heard Mr. Mahesh Rai, learned Counsel for the appellant. He has submitted that evidence of Monabai Lakda (PW-3) and Yashodabai Kowachi (PW-4) are not reliable. They are not eye witnesses of the incident. Prosecution has to prove the case beyond reasonable doubt. Burden cannot be shifted on the accused to give explanation under Section 106 of the Evidence Act. At last, submitted that prosecution has failed to prove guilt of the appellant beyond reasonable doubt. Therefore, he is entitled for acquittal.
10. Heard Mr. A.M. Deshpande, learned A.P.P. for the Respondent/State. He has pointed out evidence of Monabai Lakda (PW-3) and Yashodabai Kowachi (PW-4). Learned A.P.P. has submitted that the evidence of Yashodabai Kowachi (PW-4) shows that she saw the appellant assaulting the deceased by fist and kick blows. Appellant assaulted her by means of stone on her head. This witness went to the house of Narayan Madavi and disclosed him about the incident.
11. Monabai Lakda (PW-3) has stated in her evidence that she heard screaming of deceased Shamlata. Therefore, she went to the house of deceased. She saw deceased burning at her courtyard and appellant was sitting there. She saw blood and one stone lying in the courtyard of appellant. Thereafter, she went to the house of father of deceased and disclosed the incident to him.
12. Learned A.P.P. has submitted that, as per the evidence of Medical Officer Dr. Jitendra Newaji Gedam (PW-10), the cause of death was head and burn injuries. Appellant failed to disclose as to how deceased died. Presence of appellant is not denied in the cross-examination of any of the witnesses. At last, it is submitted that prosecution has proved guilt of appellant beyond reasonable doubt. Learned trial Court rightly convicted the appellant and hence, appeal is liable to be dismissed.
13. Perused the evidence of prosecution witnesses. Daulu Kowachi (PW-2) is the father of deceased. He has stated in his evidence that Monabai informed him about the incident. Immediately he went to the house of appellant. He saw his daughter burning. He immediately took her to General Hospital, Gadchiroli. Medical Officer examined her and declared dead. He has also stated that blood was lying in the courtyard. One stone was also lying there.
14. Monabai Lakda (PW-3) and Yashodabai Kowachi (PW-4) are the material witnesses. Yashodabai (PW-4) has stated in her evidence that she was going towards the house of Narayan Madavi for calling her son When she reached near the house of appellant, she saw appellant assaulting deceased Shamlata by fist and kick blows and thereafter, he assaulted her by means of stone on her head. Immediately she went to the house of Narayan Madavi and disclosed this fact to him.
15. Monabai (PW-3) went to fetch water from the boring situated near the house of appellant. She heard screaming of deceased Shamlata. Therefore, she went to the house of appellant. At that time, she saw that the deceased was burning. Appellant was sitting there. She had seen blood and one stone lying in the courtyard of appellant. Thereafter, she went to the house of Madhukar Sojirwar (PW-1) (father of deceased) and disclosed the incident to him.
16. From the perusal of cross-examination of Monabai (PW-3), it is clear that it is not denied by the appellant about his presence at the time of incident. Material evidence of Monabai (PW-3) and Yashodabai (PW-4) not shattered in their cross-examination. There is no reason to disbelieve the evidence of Monabai (PW-3) and Yashodabai (PW-4). Spot panchanama was drawn by the Investigating Officer. It is at Exh. 11. As per the situation on the spot, it is clear that burnt fire woods were lying in the courtyard. Blood was also lying there. Stone was seized from the courtyard at the instance of appellant.
17. Evidence of Monabai (PW-3) and Yashodabai (PW-4) are well corroborated by the evidence of Medical Officer Dr. Jitendra Gedam (PW-10). He has stated in his evidence that he had conducted post mortem on the dead body of Shamlata on 5.2.2015. Medical Officer has stated as under :-
"Burn injury involving lower extremities front and back.
Burn percentage calculated as 40% of body surface area and other injuries-fracture right mandibular ramus, fracture right parieto occipital area of skull and left supraorbital region and fracture right second rib. All these injuries are ante mortem. On internal examination of skull-subdural haematoma in left frontal area left occipital temporal area and fracture skill right parietal occipital and left supraorbital regions.
Death was caused due to burn injury and head injury. Accordingly, I issued certificate of postmortem. Now I am shown postmortem report, it bear my signature, the contents therein are true and correct, it is at Exh. 42. "
18. It is clear from the evidence of Monabai (PW-3) and Yashodabai (PW-4) that the appellant beat his wife mercilessly. When she became unconscious, he burnt her. He was sitting when the deceased was burning. This particular evidence is stated by Monabai (PW-3). Presence of appellant is not denied during the course of cross-examination of any of the witnesses. Therefore, it is clear that deceased was in the custody of appellant. Therefore, it was for the appellant to explain as to how his wife died. But he has not given any explanation in his statement u/s. 313 of the Code of Criminal Procedure.
19. Learned Counsel for the appellant Mr. Mahesh Rai pointed out decision in the case of Vishal @ Shivaji Mahadeo Kamble vs. The State of Maharashtra and another reported in MANU/MH/2679/2016 : 2017 ALL MR (Cri) 1877. The Division Bench of this Court has observed that "the Court cannot draw adverse inference against the accused by invoking Section 106 of the Evidence Act unless basic burden to prove the case is discharged by the prosecution." In the present case, prosecution has proved by the evidence of Monabai (PW-3) and Yashodabai (PW-4) that the appellant beat his wife by fist and kick blows. He beat her by stone and thereafter, he burnt her. Monabai (PW-3) saw the appellant sitting when deceased was burning. His presence is not denied. As per the evidence of Medical Officer Dr. Jitendra Gedam (PW-10), death of deceased was due to head and burn injuries. Prosecution has discharged it's burden. Prosecution has proved that appellant beat his wife by stone and caused head injury to her and thereafter, burnt her.
20. After discharging the burden by the prosecution, it was for the appellant to explain as per Section 106 of Evidence Act as to how his wife died. But he has not stated anything about the incident or as to cause of death of deceased. Therefore, conduct of appellant is material. Non-explanation by the appellant shows that he is the person who caused the death of his wife.
21. The evidence on record, more particularly, the evidence of Daulu Kowachi (PW-2) shows that the appellant was not doing any work. He was addicted to liquor and always used to beat his deceased wife. Evidence of Yashodabai (PW-4) shows that, at the time of incident, she saw the appellant beating deceased by fist and kick blows. She witnessed the incident of beating by the appellant by stone on her head. Monabai (PW-3) heard the screams of deceased. Therefore, she went to the house of appellant and saw that the deceased was burning and the appellant was sitting there. She saw one stone lying in the courtyard. Blood was also lying there. As per medical evidence, deceased died due to head and burn injuries. Prosecution has proved beyond reasonable doubt that appellant committed murder of his wife. There is no infirmity or illegality in the impugned Judgment. Hence, we pass the following order.
//ORDER//
The appeal is dismissed.
No order as to costs.
Record and proceedings be sent back to trial Court.
© Manupatra Information Solutions Pvt. Ltd.