In the matter of "Aghnoo Nagesia V/s State of Bihar" reported in AIR 1966 S.C. 119 it is observed in para No.10 -
"If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is a non- confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant."
In the present matter also the law was set in motion by accused himself and the fact of his giving the F.I.R. is admissible against him.
It is a non-confessional statement putting blame on imaginary thieves, which is false. This is a relevant fact.
Bombay High Court
Shivaji Nanasaheb Shinde vs The State Of Maharashtra on 19 August, 2013
Bench: Naresh H. Patil, A.I.S. Cheema
Citation;2014ALLMR(CRI)4352
1. The appellant - accused Shivaji Nanasaheb Cri.Appeal No.229/2000 Shinde has been convicted for offence punishable under Sections 302 and 201 of the Indian Penal Code, 1860 ("IPC" in brief) by Judgment dated 12.05.2000 by Additional Sessions Judge Kopargaon, in Sessions Case No.2/2000. For offence under Section 302 of IPC, he has been sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/- and in default to suffer simple imprisonment for one year. For offence punishable under Section 201 of IPC, he has been sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 500/- and in default to suffer simple imprisonment for six months.
Case of the Prosecution
2. Case of the prosecution in brief may be stated to be as under :-
(a) In the night between 05.10.1999 to 06.10.1999, the Head Constable Prakash EknathCri.Appeal No.229/2000 Taware of Police Station, Kopargaon received memo from Medical Officer, Kopargaon that Shivaji Nanasaheb Shinde (later on made accused) was admitted in the hospital with history of assault by thieves. Police Constable then went to the hospital which is near Police Station and recorded the statement of Shivaji. He informed that he resides at Chandgavan, Tq. Kopargaon and works at Kopargaon and in the prior evening i.e. on 05.10.1999 he had picked up his wife Shaila from Laxminagar, Kopargaon from the place of brother-
in-law Subhash Namdeo Shelke, and was proceeding towards his house. He had cycle. He and his wife Shaila were proceeding by foot towards Chandgavan and reached corner where roads go towards Jeur-
Patoda and Chandgavan. Suddenly, some unknown persons came infront of him and without saying anything kicked and boxed him in his stomach and threatened that they will stab him with knife and so saying put him down. Because those four unknown Cri.Appeal No.229/2000persons beat him, he suffered "Mukamar" (i.e. non visible injury) and he became unconscious. Time was about 9.15 in the evening. He gained consciousness after 2-3 hours and found that his wife was not there. He complained that those four unknown persons have abducted his wife aged 19 years after beating him. He said that he was unable to give description of those four persons.
Nothing was stolen from him.
(b) The Head Constable Prakash Taware registered offence at Crime No. 203/1999 under Sections 366, 323, 506 read with Section 34 of IPC at 5.30 a.m. Later on, the Police Station Kopargaon received anonymous telephone call informing that dead body of a female was seen near kiln of Kopargaon Shivar near Godavari river where the wild "Babhul" trees are there. P.I. Mohan Zine visited the spot which was near Shiv i.e. boundary of Kopargaon Shivar and Jeur-Patoda. It was Cri.Appeal No.229/2000 isolated marshy spot with wild "Babhul" trees spread at different places. The body of Shaila, wife of accused was discovered. She was identified by father of accused. She appeared to have been done to death using her Saree as ligature. Police prepared inquest panchanama and spot panchanama on the spot. Photographs of the spot and dead body were also taken. Dead body had been left on the spot in a manner exposing her private parts as well as her chest by leaving her blouse open and Saree and petticoat raised. At some distance from the spot, in addition to articles of deceased, used Condom as well as a button of shirt were also found. Considering particulars of the spot and inquest, P.I. Mohan concluded that the lady had been killed by using her Saree as ligature and then dragging her. Once dead body was found, the offence under Section 302 of IPC was added in the crime. The postmortem was got done and Police started investigation. By evening of 06.10.1999 Cri.Appeal No.229/2000 police arrested the accused for the offence. His clothes were seized which had blood stains and also stains of "Chikhal" i.e. mud mixed with water, or say muck. On 07.10.1999, the accused gave discoveries of the cloth bags which had clothes of the deceased. Police seized the same from wild "Babhul" trees near the spot. The deceased was carrying these articles when she left alongwith accused from the house of his brother-
in-law Subhash Shelke. Police also seized clothes of the deceased which had stains of blood and muck. On 12.10.1999, Police seized "Mangalsutra"
and "Pattya" (ornaments) from near the spot from "Babhul" trees, which discovery was given by accused. In the investigation, it was found that accused had been demanding Rs. 40,000/- and gold chain from his father-in-law Somnath Namdeo Naikwade and was troubling his wife for the same and had left her at the place of his father-in-
law, 15 days before the incident. She had come on Cri.Appeal No.229/2000 her own from the place of her father which was at Darel, Tq.Nandgaon, Dist. Nashik to Kopargon with her relatives and had then joined him in the fateful evening of 05.10.1999. Accordingly, prosecution charged accused for offence punishable under Section 498A of IPC. In the investigation, it was found that the accused made it to appear as if the wife had been ravished and killed by those thieves and had given false information that his wife had been abducted by such persons. Thus the case under Section 201 of IPC. Seized articles were sent to Chemical Analyzer and Chemical Analyzer's report also obtained and the charge-
sheet came to be filed. On the matter being committed to the Court of Sessions, the learned Additional Sessions Judge, Kopargaon framed the charge under Section 302, 201 and 498A of IPC.
In Trial Court
3. Prosecution brought on record the oral Cri.Appeal No.229/2000 and documentary evidence it wanted. Statement of accused was recorded. He maintained that he was innocent and thieves had indeed beaten him and taken away his wife and he did not know what happened to his wife Shaila. The learned Trial Judge after hearing the arguments convicted the accused under Section 302 and 201 of IPC, as mentioned above. Although the trial Court found that there were unlawful demands but held that the wife was not forced to fulfill the demands and so observed that the evidence falls short of offence under Section 498A of IPC. Thus, trial Court acquitted the accused on that count, and State has not challenged acquittal on that count.
4. Being aggrieved by the conviction and sentence, the accused preferred this appeal and challenged the conviction.
Cri.Appeal No.229/2000 The Appeal and arguments
5. It is argued for the accused that the discovery shown from the accused is not believable as the bags said to be carried by deceased were seized from her house on the next day as stated by PW-2 Meerabai Subhash Shelke. There was no motive for accused to commit crime. Accused had been injured while he was proceeding towards Chandgavan and he was found lying on the road by PW-10 Ashok Bachkar. Although accused asked Ashok Bachkar to take him to Police, Ashok had taken him to the hospital. Accused cannot be held responsible for the acts of Ashok Bachkar. It is claimed in the appeal memo that deceased Shaila was found alongwith her ornaments is not a circumstance as appellant - accused has no reason to kill her. The reasoning recorded by the trial Court and circumstances considered to convict the accused are not maintainable. Time of death has not been fixed. It was necessary for the prosecution to Cri.Appeal No.229/2000 prove its case beyond reasonable doubt and explanation of the accused cannot be treated as ground to convict him.
6. On behalf of State, learned A.P.P. has submitted that accused was demanding money to purchase the plot and was illtreating her, is the motive. The accused was last seen with deceased and thereafter accused gave false report to the Police. He had no injuries of such gravity which could justify his inaction. The deceased was not ravished and scene was created. The thieves did not take away even the little ornaments she had and this is also to be considered. If thieves did not want to rob or ravish the young girl, there was no reason to kidnap. The button of shirt of the accused was found on the spot where dead body was found and it shows his involvement. The little injuries which accused had on his person could have been caused by thorny "babhul" plants and Cri.Appeal No.229/2000 trees on the spot where dead body was found. Death took place in the same night and specific time is not necessary to be proved. Learned A.P.P. wants the conviction and sentence to be maintained.
Last seen together and motive
7.
(a) Evidence of PW-1 Somnath Namdeo Naikwade, the father of deceased Shaila and his aunt PW-4 Chindabai Naikwade shows that deceased Shaila was married to the accused. The marriage took place on 30.04.1999. The evidence is that Shaila was being subjected to illtreatment and taunting. The accused was demanding Rs. 40,000/-
for purchasing the plot and he also wanted a gold locket. Shaila had informed this to her father. He expressed to her that he is unable to meet the demand. The demand was repeated at the time of "Panchami" and accused was also with Shaila at that time. PW-1 Somnath had told accused that he was unable to fulfill the demand. The couple had Cri.Appeal No.229/2000 then come back. 15 days before the present incident, accused reached Shaila to Darel at the place of her father. PW-1 claims that he again demanded Rs. 40,000/- as he wanted to purchase a plot. At this time, Shaila was not feeling well and it appeared that she had been beaten. PW-1 informed the accused that he does not have money and accused left.
(b) In the cross examination, it was suggested that accused did not demand Rs.40,000/-
or gold chain. The suggestion was denied. What remains unshattered in the evidence is that accused was making unlawful demands and had gone and left his wife at the place of her father at which time, she did not appear to be well and it appeared that she had been beaten.
(c) Then there is evidence that 15 days after being left at her parents' place, Shaila wanted toCri.Appeal No.229/2000 go back to the house of her husband at village Chandgavan claiming that she is feeling better. It is argued for accused that this shows that there was no illtreatment. However, it is a matter of individual hope of the deceased to save her marriage which was just couple of months old. It also does not show that demands were not being made.
Shaila then accompanied her aunts Sindhabai and Indubai who were coming to Kopargaon as it appeared that they wanted to go to Yeola Naka. The evidence is that Shaila came to Kopargaon with her aunts and at Kopargaon while going by rickshaw, at some distance from Laxminagar where cousin sister of accused, Meerabai Subhash Shelke stays, she got down from the Rickshaw and asked her aunts to proceed saying that she will go on her own to the house of Meerabai. The evidence of PW-2 Meerabai shows that Cri.Appeal No.229/2000 deceased Shaila was familiar with her and one day before the incident at about 3 p.m. she had come to her house saying that she had come from Darel.
The evidence that Shaila came to Laxminagar at the place of PW-2 Meerabai, as above, is not in dispute. The evidence on this count is not challenged and even the accused stated so in the report of kidnapping which he had filed at Exhibit
20. The evidence of PW-2 Meerabai is that the accused is her real cousin brother from village Chandgavan. The distance between Laxminagar and Chandgavan is about 1½ hours by foot. According to Meerabai, there is no access to village (Laxminagar) except by foot and vehicle cannot reach there due to improper road. This explains as to why the deceased asked her aunts some distance away from the house of Meerabai to proceed further and on her own proceeded to the place of Meerabai.
(Report Exhibit 20 filed by accused mentions that while going for work at Kopargaon accused daily Cri.Appeal No.229/2000 goes to the place of his brother-in-law Subhash Shelke. We will discuss that Report later). Thus it appears that the victim went on her own to the place of Meerabai Shelke as she wanted to go to the place of her husband at Chandgavan. PW-2 Meerabai has deposed that at about 9 p.m. accused took Shaila alongwith him from her place. She stated that she does not know if the accused had a cycle or not as the cycle does not reach upto her house due to marshy ground and those were rainy days.
What appears from the above evidence is that although the accused had left his wife Shaila at the place of her father and came away after his demand for Rs. 40,000/- was declined by PW-1 Somnath, his wife on her own came back. Naturally the accused was not happy as his demand was not met and although he left off his wife at the place of her parents, she on her own came back. PW-11 Cri.Appeal No.229/2000 P.I. Mohan who investigated the matter was asked in cross examination as to what was his conclusion regarding the motive and has deposed that demand of money was the motive. Even ignoring his opinion, there is evidence on this count as above.
Learned A.P.P. has argued that as demand was not being met and although left at the place of her father, the wife came back on her own and so accused had motive to do away with his wife.
It is argued for the accused that if illtreatment was not there, no motive to kill can be said to be there. However, reliance can be placed on the case of "Rajinder Kumar and another V/s State of Punjab" reported in 1966 Cri.L.J.
960. It was observed in para 11 of the Judgment that -
"The motive behind a crime is a relevant fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant for assessing the evidence. The circumstances Cri.Appeal No.229/2000 which have been mentioned above as proving the guilt of the accused Rajinder are however not weakened at all by this fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to a certain course of action. This case appears to be one like that."
Incidentally, in present matter there is evidence to show motive as discussed above.
Re-appearance alone of accused
8. There is evidence of PW-10 Ashok Yeshwant Bachkar, who is resident of Jeur-Patoda, Tq.
Kopargaon. His evidence shows that on the concerned day, he had gone to Nandgaon and then came to Kopargaon at about 9 p.m. According to him, he was on motorcycle and it was raining at about 11-11.30 in the night. After rain stopped he started to go towards Jeur- Patoda. After crossing about 1½ Kms from Kopargaon, there is a square called Chauphuli, where he found that accused was lying on road. He stopped the motorcycle to see Cri.Appeal No.229/2000 who was the person. He was knowing the accused and identified him. According to him, the accused started telling him that he should go to police station and inform police that there were four thieves who after assaulting him had kidnapped his wife. Evidence also is that the accused was sitting in bending condition and he had told that he was kicked in his stomach and he is not able to speak fluently. Witness has deposed that although the accused said this, he did not go to the Police Station as it was not possible on motorcycle to go towards Kopargaon and so he went to his place Jeur-Patoda and took his tractor and went to place of accused Chandgavan and informed father and brother of the accused about the incident and brought them to Chauphuli where the accused was still lying. Father of accused asked him to take accused to Police and hospital and father and brother were to take search of wife of accused.
Witness claimed that he then brought the accused Cri.Appeal No.229/2000 to Police Station in tractor with accused sitting on the seat of driver and they asked him to take accused to hospital and so he took the accused to the hospital and went away to Jeur-Patoda. The evidence of this witness is not challenged. The only question put to this witness in cross -
examination is that the bicycle was lying nearby and the witness accepted it. The evidence of this witness who admittedly knew accused needs to be considered cautiously. There are some unreasonable acts like he claiming that motorcycle could not go to Kopargaon, although he had himself reached spot on motorcycle from Kopargaon. Further the unreasonable evidence of letting accused remain on spot instead of taking him immediately to hospital on motorcycle and going away to different places to get tractor; inform father and brother of accused and then taking accused to hospital with accused sitting on seat of driver of tractor? If accused was injured so as not to be able to move Cri.Appeal No.229/2000 this would not be possible. Anyway, the evidence is relevant to the extent of admission of accused that his wife was with him (which is a fact) and that he gave out an explanation of he being attacked and wife being taken away (which as we will discuss, is false).
The evidence of PW-6 Head constable Prakash Taware shows that he received memo from hospital Exhibit 19 that accused had been admitted in the hospital with history of assault by thieves. P.W. 6 went and recorded the report Exhibit 20 given by the accused. When Exhibit 20 was recorded, Shivaji Shinde was yet not an accused in any matter and it was received as a complaint of the husband reporting kidnapping of his wife by thieves. Victim was last seen alive with the accused in the evening of 05.10.1999 by PW-2 Meerabai who says that the accused had taken the victim alone to go to Chandgavan. Evidence of Cri.Appeal No.229/2000 PW-9 Dr. Ashok is that Shivaji Shinde was admitted in the hospital on 06.09.1999 at 3.15 a.m. claiming that he was beaten by thieves. What happened to Shaila between 9 p.m. after accused left with her and after about 11-11.30 p.m. of the same evening when he re-emerged without her is something which is exclusively in the knowledge of the accused.
Explanation of Accused
9. The accused gave report Exhibit 20 claiming that on 05.10.1999 at about 8 p.m. after his duty at milk dairy at Kopargaon was over he went to Laxminagar on cycle to the place of Subhash Namdeo at about 8.15 p.m. He saw that his wife had reached there and asked her as to when she came and she told that she had come at about 3-4 p.m. He reported that after having food he and his wife Shaila on foot had started to go to Cri.Appeal No.229/2000 Chandgavan and the time was 9 p.m. He had a cycle with him. They crossed Fatherwadi and came to the corner of roads leading towards Jeur-Patoda and Chandgavan. At that time, suddenly, unknown persons came infront of him and without saying anything kicked and boxed him in the stomach and threatened that they will stab him with knife and so saying they put him down. Because of such beating by those four unknown persons, he suffered "Mukamar" and became unconscious. According to him, time was 9.15 p.m. when this happened. Report then claimed that the accused was unconscious for 2-3 hours and when he came back to consciousness he found that his wife Shaila was not there and those four persons had abducted her. He claimed that he would not be able to give description of those persons or their names etc. He did not have any money and nothing was stolen from him. He had been admitted to Kopargaon Municipal hospital.
Cri.Appeal No.229/2000 False Story
10. With such story accused put police on a track of a case of abduction. Prosecution investigated and has brought on record material to prove involvement of accused himself and to prove that this story was false.
The spot where body found
11. The evidence of PW-11 and inquest panchanama refers to the fact that after accused had given Report Exhibit 20 of kidnapping, anonymous telephone call came regarding dead body of female seen lying. PW-11 P.I. Mohan alongwith panchas and photographer went to the spot. The evidence of PW-3 panch Bhausaheb Janakunath Khare, PW-5 Photographer Rafiq Rangrej and PW-11 P.I.
Mohan shows that they had gone to the spot. The inquest panchanama Exhibit 13 was prepared of the Cri.Appeal No.229/2000 dead body and it was followed by the spot panchanama Exhibit 14. The oral evidence and spot panchanama show that the spot is adjoining the "Shiv" i.e. border of Kopargaon Shivar and Jeur-
Patoda. Body was lying on one side of "Shiv".
Grass near the body was noticed as trampled. The "shiv" was to the west of the body and further west at 100' there was a "Nala" flowing north-
south. There were many wild "Babhul" trees nearby.
To the east of the body there was fallow land of some Kulkarni with many wild "Babhul" trees. To the south there was bed of Godawari river at 235'.
To the north on the "Shiv" for about 300' there were signs which showed that the person had been pulled and brought "Farkatat" i.e. dragged on buttock to the spot.
It appears, to the north of such spot from where the victim was dragged, there was a sub-spot. There was an east-west pathway. Signs of Cri.Appeal No.229/2000 dragging were on the pathway also which had sand and grass growing. At about 144' there were further signs of trampling of grass in an area of 5½' X 3½' and it had rained. There was "Chikhal".
The photographer Rangrej has deposed that it was a wet and marshy land with signs of body being dragged to the spot. He photographed hairpin, pieces of Bangles, Golden Manchali lying at various spots. Spot panchanama shows that white button was also seized from the spot and empty packet of "Nirodh" and used Condom with semen were recovered.
Thus what appears is that the spot and sub-
spot was a marshy land with lot of wild "Babhul"
trees growing around. The "Nala" to west of spot where dead body was lying was 20' east of the sub-
spot. At such sub-spot, there were signs of grass trampled and various articles of the victim were found lying scattered and then there were signs of Cri.Appeal No.229/2000 she being dragged by tying her saree to her neck till the spot where her body was discovered. To the west of sub-spot there was thorny pathway; to the north beyond, there was Kopargaon-Chandgavan road and to the south there were wild "babhul"
trees.
Inquest panchanama shows that end of her own saree was tied to the neck of the victim and she had been dragged. The inquest panchanama shows that victim had injury near her eyes. She was still wearing "Karnphul", "Kudke" and "disco".
Thus, she still had some ornaments on her person.
Her saree had been used as ligature. On examining the neck, injuries were noticed due to tying of saree to the neck and pulling. There were scratch marks on the stomach and chest. The spot panchanama, photographs and oral evidence shows that the body was discovered lying in a manner so that the private parts were exposed and her blouse Cri.Appeal No.229/2000 had been left open to expose chest. The blouse had been opened and not torn apart. Her back and foot had signs of dragging.
12. Evidence of PW-11 is that circumstances revealed that accused had made false report to the Police about abduction of his wife. According to him, he did not find any symptoms of assault on the victim and he did not notice any foot prints in the wet ground of four persons. He has deposed that at the place only one person's foot prints were seen by him. PW-11 Mohan has deposed that there was no bleeding noticed from vagina. Medical evidence also does not show signs of forcible intercourse.
13. Thus, there is evidence of victim being found dead showing signs of she being put to death by tying her own saree to her neck and dragging some distance in marshy land where there appearsCri.Appeal No.229/2000 to be grass. It is an isolated spot. There were no signs that she had been raped or that she had been robbed. There was used condom dropped at the spot with empty packet of Nirodh. This may be to create confusion. In fact, the anonymous phone call disclosing where the body is lying also creates doubt if it was real or got made.
Stains of blood and muck on clothes of accused
14. The evidence of PW-7 panch Shankar shows that on 06.10.1999 itself, the Police arrested accused and seized clothes from his person regarding which panchanama Exhibit 22 was drawn.
PW-11 P.I. Mohan has also deposed regarding this.
This panchanama shows that from the person of accused his full shirt was seized alongwith his full pant, Baniyan and underpant. Shirt had at various places muck sticking to it and there were also blood stains. From collar the third button Cri.Appeal No.229/2000 was missing. His other clothes had signs of muck sticking to them. Even if Chemical Analyser's report comparing muck of the clothes of accused and spot is not there, still, fact is proved to the extent that the victim had been dragged on ground having muck, and clothes of accused also had muck on it.
It is not the case of the defence that when thieves allegedly took away his wife, accused had suffered any bleeding injuries. However, when he was arrested and his clothes were seized, the shirt had blood stains. Evidence of PW-11 Mohan is that he had sent the seized articles to the C.A.
The C.A. Report shows that full shirt of accused had human blood stains of group `B'. This blood group `B' stains were also found on the clothes of the victim which were seized vide panchanama Exhibit 23 which has been proved on record. Thus, the clothes of the victim and the accused hadCri.Appeal No.229/2000 blood stains of the same group. If the accused had not suffered any bleeding injuries, the finding of the blood group which was apparently of the victim is also one of the circumstance.
Button on spot
15. The shirt of accused had a button missing. From spot a button was seized found lying. One of the circumstance held by subordinate Court against the accused is that button which was found at the spot near the dead body was of the type which are on the shirt of accused from which one of the button is missing. It appears, accused may not have noticed his button falling on spot.
Alleged Discoveries can be ignored
16. Prosecution has relied on memorandum Exhibit 24 and panchanama Exhibit 25 regarding discoveries of cloth bags which the victim is said Cri.Appeal No.229/2000 to have been carrying. It is claimed that the cloth bags with clothes of the victim were discovered at the instance of the accused from bushes in the fallow land of Kulkarni on 07.10.1999. From the same land on 12.10.1999 discovery of "Mangalsutra" and "Pattya" is claimed regarding which panchanama Exhibit 28 has been proved. The trial Court has discarded this evidence. PW-2 Meerabai deposed in cross-
examination that cloth bags brought by Shaila were recovered from her own house on the next day of incident. No doubt the evidence was challenged on the ground that she is cousin sister of accused and hence the evidence. But then, even otherwise, the area must have been combed by police when the body was discovered and these subsequent discoveries do not inspire confidence and need to be ignored. Over enthusiasm of police cannot be reason to give benefit to accused forgetting the unfortunate victim. It may be mentioned that even Cri.Appeal No.229/2000 if these discoveries are ignored, that does not weaken the case of the prosecution. Even without these discoveries there is ample evidence to show involvement of the accused.
Medical evidence
17. The evidence of PW-9 Dr. Ashok Govind Kamle is that he had conducted postmortem of body of Shaila on 06.10.1999 between 4-5 p.m. The evidence of doctor regarding injuries is as under:-
"i) Ligature mark over neck extending from right sterno mustoide muscle extending to left sterno mustoide muscle in size 1/2" X 8" with abrasion knot towards left with size 1½" X 1".
ii) Contusion over left mazilla of size 2" X 1".
iii) Abrasion over left forehead. 1" X 1".
iv) Multiple scratches abrasion over both legs posteriarly, vertically in direction.
All injuries were antemortem in nature During internal examination brain was found congested. Thorax was found congested over supra larynx region. Left lung was congested with odomation so also congested pericardiun Heart was containing blood. Both the cartid vessels at ligature were found congested. Utrus was congested and was in normal size."
Cri.Appeal No.229/2000 Doctor opined that death was on account of asphyxia due to pull and stretched hanging. The postmortem report is at Exhibit 30. Doctor has deposed that ligature mark was possible on account of the end of the saree which was found tied around the neck of the deceased. According to him, injuries were possible if body is lifted upto waist and dragged forward by holding the knot tied in the neck. The death occurred on account of respiratory arrest which was on account of such hanging and death may have been caused within 5-8 minutes. According to doctor putting the ligature is enough and sufficient to cause death. In cross examination doctor has deposed that the instant case is of partial hanging. The ligature was pressed at the base of the tongue. Ligature mark was a sign of antemortem injury. He deposed that there were no injury marks of struggle on the body. (It may be because the wife may have been Cri.Appeal No.229/2000 caught unawares. The doctor has deposed that when the knot was tied around the neck of the victim there may not have been complete death, but partial death cannot be ruled out and it might have been completed after tension is given to the knot.) Opinion of doctor is that unless tension is given or it is pulled, ligature will not cause the impression. Cross examination shows that there were no marks of sexual violence on the body of the victim. If the spot is kept in view and injuries noticed in postmortem and the evidence of this doctor is examined, it becomes apparent that Shaila was put to death by tying her own saree to her own neck and by dragging. Prosecution has proved that Shaila suffered the death due to culpable homicide.
18. It has been argued for the accused that the prosecution has not proved time of death.
However, learned A.P.P. has submitted that Cri.Appeal No.229/2000 evidence of PW-2 Meerabai shows that accused left with Shaila at about 9 p.m. when she was last seen alive. She was found dead in the morning when police reached the spot and conducted inquest panchanama at about 10.45 p.m. According to learned A.P.P. death occurred during this period and circumstances and time gap is not much or such that accused could take any undue benefit.
According to learned A.P.P. accused has to explain how within this time his wife who had gone with him, could suffer death. According to learned A.P.P. accused resorted to false excuses and gave false report to misguide the Police.
Prosecution has proved that some time between 9 p.m. of 05.10.1999, when accused took Shaila alongwith him and 10.45 a.m. of 06.10.1999 when dead body of Shaila was discovered, she had been killed.
Cri.Appeal No.229/2000
19. It would be now appropriate to see if the accused had any plausible explanation to show that he was not responsible for the death of his wife who was last seen alive with him. If his explanation as seen in F.I.R. Exhibit 20 is considered, the same does not at all inspire any confidence. The evidence of PW-9 Dr. Ashok Kamble shows that he had examined the accused on 06.10.1999 at 3.30 a.m. The accused had given history that he was beaten by thieves. He had abrasion on his left knee of 4 X 3 inches. He complained of pain and tenderness on right knee and on the abdomen. He had another abrasion on right elbow. Thus, he hardly had one abrasion on left knee and one abrasion to his right elbow.
Doctor has deposed that when he examined the abdomen of accused, he did not find any injury in the abdomen. Such evidence was given by the doctor on the basis of the record, which he had brought.
Although the certificate was not brought on Cri.Appeal No.229/2000 record, but the oral evidence of doctor is based on record. Doctor has deposed that the abrasion was possible if a walk is taken in bushy and hard surface. Accused does not appear to have had injuries so serious that he was unable to protect his wife. Rather, it may be said that he hardly had injuries at all. In his report Exhibit 20 he did not claim that any knife was brandished to him although he claims that threat was given that he would be knifed. When evidence of doctor shows that there was no injury to the stomach report of accused that because of kick and blow in his stomach he became unconscious is not appealing. It is unlikely that unknown assailants would hit only in the stomach, which would not show any apparent injury and not hit on any other parts of his body.
In ordinary course, if four persons attack one person like the accused, he must have other visible injuries. It is very convenient and easy to say that I was boxed in my stomach and I becameCri.Appeal No.229/2000 unconscious. Anybody would know that such injuries would not openly show. The report claimed that such incident took place at 9.15 p.m. The accused conveniently says that he became unconscious for 2-3 hours. When there is no injury to stomach, this appears to be made up story. He claims that he came to consciousness after 2-3 hours (which would be 11-12 `O' clock in the night). Still he does not go and report to the police. Evidence of PW-10 is that he had started from Kopargoan to go to his residence at Jeur-Patoda and had hardly gone to 1½ Kms. when he reached the said Chauphulli and noticed the accused. If Kopargaon was so close by, it is not appealing that accused who hardly had any injury could not have gone and reported to the Police. His own report shows that he left the place of PW-2 Meerabai at about 9 p.m. and the incident he claims had taken place at 9.15 p.m. Thus, the house of his own brother-in-law Subhash Shelke was hardly at a distance of 15 Cri.Appeal No.229/2000 minutes walk. Still he made no efforts to either help his wife or try to get help from anybody and report the matter to the Police. He conveniently keeps lying there or sitting (as stated by PW-10).
This is unnatural conduct for a person, whose young wife has been taken away. It does not inspire confidence. Evidence of PW-11 shows that accused was avoiding pointing out the spot where the alleged incident took place. If the evidence of PW-10 is considered Jeur-Patoda is just 2½ Kms from Chandgavan and the said Chauphuli where the accused is said to have been seen lying was just 1½ Kms from Kopargaon. It may be recalled that spot where victim was found had at some distance to the north this Kopargaon-Chandgavan road having "Chauphuli". What can be gathered is that all these places are nearby. Looking to the evidence, alleged spot of Chauphuli does not appear to be much away from the marshy land where the dead body of the victim was found. Explanation given by the Cri.Appeal No.229/2000 accused in Exhibit 20 as well as in the trial is not convincing. It has to be held that accused gave false explanation. This is treated as another circumstance proved by the prosecution.
In the matter of "Aghnoo Nagesia V/s State of Bihar" reported in AIR 1966 S.C. 119 it is observed in para No.10 -
"If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is a non- confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant."
In the present matter also the law was set in motion by accused himself and the fact of his giving the F.I.R. is admissible against him.
It is a non-confessional statement putting blame on imaginary thieves, which is false. This is a relevant fact.
20. Record shows that it was only the accused Cri.Appeal No.229/2000 who had reasons and opportunity to take his wife away from the road and take her to the marshy land and kill her and then make a show as if thieves had taken her away and that she was ravished.
Thieves did not take away anything of his. Even his cycle which he claims he had was lying on the spot. The Thieves did not even take away whatever little ornaments the victim had. The alleged thieves did not even commit sexual intercourse. If the thieves had nothing to do, they would not have abducted the young girl. It is most unlikely that thieves if they abducted the young girl would neither rob her nor sexually assault her. There would be no purpose of such kidnapping. In the circumstances, only hypothesis is that the victim who was reluctantly taken away by the accused was killed by him and then he projected as if he had been attacked and his wife had been taken away.
Reliance can be placed on the case of Aspak @ Munna Nazir Mohd. Sheikh V/s State of Maharashtra Cri.Appeal No.229/2000 reported in 2003 All MR (Cri) 105, where it has been observed in para No.24 as under :-
"The facts which are within the special knowledge of an accused, are required to be explained in terms of Section 106 of the Evidence Act by the appellant. The appellant before us has not given any explanation, but has denied the prosecution case in toto and has given false suggestions contrary to the record to the witnesses. Besides this, he tampered with the evidence and shifted dead body from his room to the room of girls hostel. He also absconded thereafter. All these factors unequivocally point out to the guilt and involvement of the appellant in the crime and the same are not consistent with the innocence of the appellant."
Accused has not given any plausible explanation, leave aside proving facts specially within his knowledge as required by Section 106 of the Evidence Act. Thus inference of guilt needs to be drawn.
21. The learned counsel for appellant -
accused relied on the case of "Sahadevan and another V/s State of Tamil Nadu" {(2012)6 Supreme Court Cases 403} and the reported judgment in the matter of "Malleshappa V/s State ofCri.Appeal No.229/2000 Karnataka" (AIR 2008 S.C. 69) to argue that the prosecution needs to fix time of death of the victim and merely on the basis of last seen together, the conviction cannot be sustained, and that, truthfulness or falsity of the explanation given by accused cannot be basis for conviction.
According to learned counsel, State has to prove its case beyond reasonable doubt and then only question of explanation of accused would be relevant.
In the matter of Sahadevan, deceased had died about 27 to 28 hours before the autopsy. The autopsy was admittedly performed upon the deceased on 10th of July at about 2 `O' clock. The Hon'ble Court implied that the deceased would have died some time during the morning of 9th July, while according to PW-4 of that matter, the witness had seen deceased along with one Chandran after 2 p.m. on 09.07.2002. Thus, facts of that matter are Cri.Appeal No.229/2000different. In the present matter in the earlier prior late evening the accused had left alongwith the deceased and reappeared in strange way in the night with his wife missing and early morning filed a complaint which is false and soon dead body of his wife was discovered that too on the basis of an anonymous phone call. In the present matter there is no such time gap of which the accused can take advantage.
In the matter of Malleshappa after the deceased had been forcibly taken for digging bore-
well, he had not returned and highly decomposed body was found around 10 days thereafter. In that matter, the Court found the evidence full of contradictions and accused was given benefit. In the present matter there are no such facts and support of the judgment cannot be taken by the accused.
Cri.Appeal No.229/2000
22. The rulings relied on by the learned counsel for the accused have been kept in view regarding the principles as appearing from them.
The present matter has to be decided on its own facts. Even if the explanation given by the accused as to what happened to his wife is ignored, the fact remains proved that some time after 9 p.m. of 05.10.1999 accused took along his wife Shaila and was last seen together with her and dead body of Shaila was found next day morning at the spot which was clearly isolated. The time gap is not such that the accused can be given any benefit of doubt. Looking to the motive as discussed above, and other evidence discussed above, there is a complete chain of circumstances which admit no hypothesis other than the fact that accused himself murdered his wife. He then created false scene and story to screen himself from punishment which also is a circumstance against him.
Cri.Appeal No.229/2000
23. The manner in which the death of Shaila was caused shows that the intention was to cause her death. The accused is thus rightly held guilty of offence under Section 302 of IPC by the trial Court. Similarly, the accused had rightly been held guilty of giving false information to screen himself from crime under Section 201 of IPC.
Keeping in view the law and the facts, it does not appear necessary to disturb the conviction and sentence passed by the trial Court for the reasons discussed above. There is no substance in the appeal and same deserves to be dismissed.
24. Appeal is dismissed. Appellant - accused to surrender to his bail bonds.
(A.I.S. CHEEMA, J.) (NARESH H. PATIL, J.) sga/ Cri.Appeal No.229/2000 After pronouncement of the judgment, learned counsel for the appellant prays that four weeks time be granted to the appellant - accused to surrender as the appellant is on bail. We grant four weeks time to the appellant - accused to surrender.
(A.I.S. CHEEMA, J.) (NARESH H. PATIL, J.)
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