P.D. Kode, J.@mdashThe appeal is directed against the judgment and order dated 12th July, 2006 passed by the learned Vth Ad hoc Addl. Sessions Judge, Solapur, convicting the appellant for committing the murder of his wife Najma Abbasali Sayyad and daughter Anjum Abbasali Sayyad on 29th September, 2005 at about 3.00 hours in the house of his brother-in-law PW9 Hassan Shaikh by inflicting blows of stone on their head and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 500/-, and in default of payment of fine, to undergo further rigorous imprisonment for one year. According to prosecution, the appellant after his marriage with Najma, daughter of PW2 Gulab Babu Gadiwan resident of Limbichincholi, Solapur, in the year 2001 was residing along with Najma and his parents at Swagat Nagar, Solapur. A daughter Anjum was born out of said wedlock. After happy married life for two years, the appellant started quarrelling with Najma and beating her due to suspicion about her character.
1.1 About 1 and 1/2 years prior to occurring of the incident, i.e., 29th September; the appellant left Najma and Anjum at the house of PW2 and went to Haider by assuring to return immediately, but did not return. Najma since then resided with PW2. The whereabouts of the appellant were not known for a period of about 1 and 1/2 years.
1.2 About 8 days prior to the incident, PW2 learnt about return of the appellant at Mohol. PW2 went to Mohol and brought the appellant to his house at Limbichincholi. He also called parents of the appellant, and maternal uncle of the appellant Hasanbhai resident of Rampur and the appellant in presence of said persons assured that he would properly treat Najma and would not suspect about her character. Najma was sent along with the appellant at his house at Rampur. Thereafter the appellant alongwith his wife Najma and daughter resided in a room at rear side of the house of his sister Jamalbi Hasan Shaikh, wife of PW9 Hasan Shaikh at Rampur.
1.3 According the prosecution, in intervening night of 28th and 29th September, the appellant along with his wife and daughter was sleeping in a room at the rear side of the house of PW9. The daughter of PW9 by name Shabana was sleeping in the room at front side while PW9 was sleeping in courtyard. At about 3.00 hours, PW9 heard a noise "Dhap Dhap". He awoke and knocked the door of a room in which the appellant was sleeping. However, the appellant was not ready to open the door. Hence, PW9 sent his daughter Shabana in the said room through window. Shabana opened the door and PW9 entered in the room. He found that the appellant was standing near the corpses of Najma and Anjum. Both of them had sustained bleeding injuries. A pata-grinding stone was seen nearby them.
1.4 The people gathered at the said place due to hue and cry raised by PW9 and his children. The police Patil of Rampur informed about the happenings to PW11 API Laxman Borate of Valsang Police Station. The said police patil and one of his relative also went to the house of PW2 at about 5.30 a.m. and informed them about the incident occurred. PW2 along with them and the other villagers rushed to the spot and noticed his daughter and granddaughter lying in injured dead condition in the room where they were sleeping. The oral report (Exh. 18) lodged by PW2 regarding commission of the murder of wife and daughter by the appellant was reduced into writing by PW11 on the spot.
1.5 PW11 registered the crime No. 86 of 2005 thereon for the offence of murder against the appellant. PW11 arrested the appellant present at the spot and carried out the investigation in the crime, which included drawing of inquest panchanamas of dead bodies (Exh. 31 and 32) in presence of panch PW6 Shrimant Kondiba Gaikwad and others, drawing of spot panchanama (Exh. 16) and seizure of the articles and sealing the same at the spot in presence of panch PW-1 Tukaram Dilpake and one another, seizure of the bloodstained shirt of the appellant in presence of PW5 Kailas Kindagi by drawing of panchanama Exh. 27 at the police station. He forwarded the appellant to Medical Officer for collection of the blood. PW11 also forwarded the corpses of Najma and Anjum for post-mortem to Civil Hospital, Solapur at which place the same was carried out by PW3 Dr. Shailendra Gursali. PW11 forwarded seized muddemal articles to C.A. through carrier PW7 Vijaykumar. At the conclusion of the investigation, PW11 submitted charge-sheet against the appellant for commission of the murder of his wife and daughter in the court of J.M.F.C., Akkalkot.
2. The appellant pleaded not guilty to the charge (Exh. 3) framed against him for the offence of murder of wife and daughter by the Court of Sessions, after the case was committed to the said Court. The prosecution examined in all ''11'' witnesses at the trial, i.e., above referred witnesses and additionally PW8 ASI Ashok Vhatkar, Mudeemal clerk with whom muddemal was deposited by PW11, panch PW4 Jamadar in whose presence on 29th September, the clothes of both deceased were seized under panchanama vide Exh. 25 and PW10 Ramkrishna Kudale, Revenue Officer for having prepared map of offence (Exh. 41). The prosecution also placed reliance upon the documentary evidence, which were prepared during the course of investigation.
2.1 The appellant by the answers given by him during his examination effected u/s 313 of Cr.P.C. admitted bulk of the prosecution case as appearing from various circumstances in the prosecution evidence appearing against him and put to him. He admitted his marriage with Najma, himself quarrelling and beating Najma. He admitted having left the house 1 and 1/2 years prior to occurring of the incident, but denied that upon his assurance of giving proper treatment to wife and daughter they were sent back with him at Rampur. Significantly enough he admitted his wife and daughter lying in injured dead condition in a room in which they were sleeping, their bodies being sent to post-mortem, the injuries on their head as deposed by PW3 and the said injuries being sufficient to cause death in normal course and being possible by pata, i.e. muddemal article No. 6. Without enlisting each of the facet of the prosecution case admitted by the appellant during said examination, it can be said that the appellant by the answer to the last question put to him during the said examination stated that the case filed against is true and correct. He further admitted that his marriage with Najma was solemnized only for one year. Najma had illicit sexual relation with Natraj Baswaeshwar Narole. Najma was not ready to cohabit with him and she was willing to go to reside with Natraj Narole. He demanded divorce from her but she told him that she will grab his property and then will go. She has undergone family planning behind his back for having only one daughter.
3. The trial court after appreciation of the prosecution evidence came to the conclusion that by the said evidence the prosecution has established the various circumstances discussed in the judgment and the said circumstances considered in light of non-explanation on the part of the appellant leading to the conclusion of sole inference of the guilt of the appellant in murdering his wife and daughter by inflicting blows of stone-pata on their head. In consonance with said conclusion arrived, the trial Court convicted and sentenced the appellant as narrated hereinabove.
4. Mr. Sachin B. Chandan, the learned appointed counsel for the appellant by meticulously taking us through the prosecution evidence strenuously contended that the prosecution evidence by and large rest upon the evidence of PW9, brother-in-law of the appellant. It was urged that the evidence of PW9 accepted as it is or the evidence of other witnesses failed to establish a complete chain of circumstances leading to the sole inference of the guilt of the appellant. It was urged that the prosecution has not at all examined material witnesses, i.e., persons from neighbourhood for throwing light regarding reality behind the occurring of such incident in said house leading to the death of wife and daughter of the appellant. It was urged that hardly any deceive circumstance is established by the prosecution linking the appellant with death of two victims. It was urged that in cases involving circumstantial evidence, non-explanation on part of the culprit facing the trial assumes significance only in the event of circumstances established being capable of leading to the inference of the guilt of the culprit. It was urged that if such a conclusion is not emerged from the established circumstances, then non-explanation on part of the culprit becomes insignificant. It was urged that at the criminal trial the accused is entitled to keep his mouth shut and the prosecution is required to establish his guilt beyond pale of doubt. It was contended that as urged earlier, the circumstances established being not capable of leading to the inference of the guilt of the appellant, his non-explanation or keeping of silence is immaterial.
4.1 The learned defence counsel thereafter contended that the evidence denotes that the incident had taken place at wee hours of the midnight. It was urged that the prosecution evidence also denotes that relationship in between the appellant and his wife were not at all cordial. It was urged that such time of occurrence of incident itself denotes that same must be outcome of a sudden quarrel ensued in between the couple. It was urged that such an inference is fortified by the fact of number of injuries sustained and the weapon used for causing the injuries. It was urged that the fact of appellant was found in the said house, by the side of the body, is also a suggestive of incident having not occurred due to peer mediation and in all probability in the heat of moment. The said submissions were attempted to buttress by urging that the evidence on record fails to denote that the appellant was having any intention to kill his wife or the child. It was urged that the appellant taking back both of them after having remained away from them for a period of about 1 and 1/2 years militates against the appellant entertaining any such intention. It was thus contended that the offence occurred at the hands of the appellant thus cannot transcend beyond the commission of the offence u/s 304, part-I of I.P.C. It was thus contended that upon circumstantial evidence as established by the prosecution, the conclusion of the guilt of the appellant cannot be arrived and as such he deserves to be acquitted and or atleast deserves to be given benefit of doubt.
5. Mr. P.S. Hingorani, the learned APP for the State counter-veiled the aforesaid submissions by submitting that the evidence on record clearly established that the appellant with a definite plan had committed cold blooded murder of hapless victims when they were in his custody. It was contended that in absence of any evidence regarding occurrence of quarrel, existence of such a quarrel and same leading to killing of the victims cannot be presumed. It was urged that the time factor upon which the finger has been laid by the learned defence counsel itself militates again occurrence of any quarrel. It was urged that on the contrary the said timing is indicative that the appellant, who was not interested in the wife and daughter and was forced to take them back had got rid of them after preparing a plan and executing it in wee hours. It was urged that since the acts occurred on the part of the appellant are not falling within any of the exception stated in Section 300 of I.P.C., there will not survive any question of the offence committed being not of murder or being an offence u/s 304 of I.P.C. It was urged that in view of the provisions of Section 106 of Evidence Act, non-explanation of the appellant regarding vital circumstances established against him and denoting his involvement in commission of crime leads to conclusion of there being no merit in the appeal and hence the same may be dismissed.
6. Thoughtful considerations were given to the submissions advanced by both the sides and record of the case was carefully examined in order to ascertain the merit from the submissions canvassed.
7. At the first blush, it can be said that since there is no eye-witness for the crime in-question and the case has been rested upon the circumstantial evidence, as per the settled legal position regarding such type of cases, we find it necessary to assess the prosecution evidence to ascertain whether the circumstances relied by the trial Court, i.e.,
(1) Both the deceased having met with homicidal death;
(2) Appellant possessing motive to commit the crime in-question;
(3) Both the deceased being lastly seen alive in the company of the appellant when they had been for sleep.
(4) Appellant having an opportunity to commit the crime.
(5) Soon after commission of the crime, the appellant was the only person seen alive alongwith the corpse of both the deceased in the said room locked from inside.
(6) Blood of same group as that of deceased was found on the shirt of the appellant were duly established by the evidence adduced and thereafter to ascertain whether the said circumstances within themselves form a formidable chain leading to sole inference of the guilt of the appellant.
8. In the said process, now firstly, taking into consideration the 1st circumstance of both the deceased having met with homicidal death, the reference to the evidence of PW6 Shrimant Gaikwad, panch witness to both the inquest panchanamas (Exhs. 31 and 32) and so also reference to the evidence of PW1 Tukaram Dilpak, panch witness to spot panchanama (Exh. 16) in terms reveal the manner in which the corpse of Najma and Anjum were found in the room in which both of them had slept along with the appellant. The careful scrutiny of the evidence of both the said witnesses, which is also corroborated by the Inquest panchanamas and spot panchanama to which they were party, does not reveal any significant material elicited during the cross-examination for not accepting their testimony. Without indulging in making any dilation about the matters spelt out from their evidence, it can be safely said that their evidence and the situation in which the corpses were found clearly indicates that they had sustained injuries due to a violence made with them by means of pata found at the said place and succumbed to the injuries sustained. The bare glance at the said evidence reveals that the death of both deceased was homicidal as the said evidence considered in proper perspective excludes the possibility of death being for any other cause other than homicidal. Needles to add that due support to the said evidence is found from the relevant part of the evidence of father of deceased Najma, i.e., PW2 and PW9 regarding above stated aspects. Similarly the support to said evidence is also found from the evidence of Investigating Officer PW11 API Laxman Borate, who had visited the spot after the receipt of information of occurrence of incident from Police Patil of Village Rampur. Needless to add that after close scrutiny, we do not find their evidence regarding relevant aspect being shattered in any manner.
8.1 The inference arising out of the above referred evidence is further found fortified after considering the evidence of PW3 Dr. Shailendra Gursali, who had performed postmortem examination of the corpse of Najma and Anjum, after the same were referred to Civil Hospital, Solapur by Valsung Police. The evidence of PW3 reveals that during the postmortem examination qua the body of Najma performed on 29th September 2005 in between 11.45 a.m. and 12.15 p.m. during the external examination, he found two ante mortem injuries, i.e.,
(1) Right ear laceration totally &
(2) Right side of scalp looks depressed.
while during internal examination, he had found following injuries:
Skull vault fractured pus present, running transverse just above the both ears measuring 7 inches;
Cerebrum coming out of fracture. Laceration of cerebrum present. Bleeding was present, meninges torn.
8.2 PW3 has deposed that said internal injuries noticed by him were corresponding to external injuries noticed by him on said corpse. PW3 gave cause of death as "Head injury". He deposed Exh. 22 being post-mortem notes of the said pos-mortem examination of Najma prepared by him and contents thereof being true and correct.
8.3 Similarly, qua the post-mortem examination of Anjum, he deposed of having commenced it at 11.00 a.m. and completed it at 11.30 a.m. on same day. During the external examination, he found two antemortem injuries, i.e.,
(1) Abrasion present on left side of scalp of size 5 x 5 cm.
(2) Left side on skull looks depressed.
while during internal examination, he had found following injuries:
(1) Skull vault fractured present running transverselly just above the both ears measuring 7 inches;
(2) Meninges torn and lacerated.
(3) Brain matter was coming out of fracture and bleeding was present.
8.4 PW3 deposed that said internal injuries noticed by him were corresponding to external injuries noticed by him on said corpse. PW3 gave cause of death as "Head injury". He also deposed Exh. 23 being post-mortem notes of the said post-mortem examination of Anjum performed by him and vouched for correctness of the contents of Exh. 23.
8.5 After scrutiny of evidence of PW3, we find that same is well corroborated by the matters stated by him in postmortem notes. Similarly, the reference to the cross-examination reveal that he has ruled out the possibility of the injuries noticed by him in column No. 17 and 19 respectively of Post-mortem Notes Exhs. 22 and 23, being possible by a fall on sharp stone. He duly denied suggestion given to him of having deposed falsely of having collected blood samples of both the deceased. Thus considering the said evidence and particularly the cause of death of both the deceased given by him and in light of the circumstances in which the dead body was found we are unable to find any fault with the trial Court coming to the conclusion that death of both deceased was homicidal. Thus it can be safely said that by the said evidence the prosecution has duly established the 1st circumstance of Najma and Anjum having met with homicidal death in the house of PW 9 Hassan.
9. Now taking up 2nd circumstance of the appellant possessing the motive to commit the crime in-question, the reference to the evidence of PW2, father of deceased Najma reveals that he gave the evidence in consonance with the prosecution case narrated in the earlier part of the judgment. It is the core of his evidence that the appellant had married with deceased about 5 years before the incident and after happy married life of two years, appellant started quarreling and beating the deceased on the count of suspicion regarding her character. The appellant was not doing any work. It reveals that deceased had accordingly told to him when she had been to his house along with the appellant on occasions for attending programme. It also reveals that deceased Anjum was born out of the said wedlock. Significantly enough his evidence reveals that about 1 and 1/2 year prior to the occurrence of the incident at the time of Eid, the appellant had brought Najma and Anjum to his house and left for Haider. The appellant had not returned for a period of about 1 and 1/2 years. After PW2 learnt that the appellant had come to Mohol, he had been to said place and taken the appellant to his house where he had called the parents of the appellant. The appellant had then assured to give proper treatment to Najma and thereafter the appellant, his parents, and Najma had returned to Rampur. The said evidence of PW2 is well corroborated by similar matters stated in the complaint Exh. 18 lodged by him. Further more support to aforesaid evidence is also found from the answer given by the appellant during his examination u/s 313 of Cr.P.C. and particularly the answer to the last question, which is reproduced earlier. The support to the evidence is also found from the evidence of PW9 about appellant absconding. It needs no saying that the suspicion about the character of the wife has been found to be a sufficient motive for causing harm to her since the time immemorable. Thus considering such evidence, which duly establishes the appellant having sufficient motive to commit the murder of his wife and so also his daughter is established by the prosecution and hence finding to such effect arrived by the trial Court cannot be faulted.
10. Now taking up the further circumstances established by the prosecution, the reference to the evidence of PW 9 reveals that he is brother-in-law of the appellant, i.e., husband of sister of the appellant. Perusal of his evidence reveals that after the appellant had absconded, PW2 had brought Najma to his house. It reveals that PW2 has also brought the appellant to his house after abscondence for one and half years and two days thereafter the appellant, Najma and Anjum had been to the house of PW9 and resided for four days. It reveals that they were residing in a room at the rear side of the room in which PW9 was residing.
10.1 The further part of the evidence reveals that on the fateful night, his daughter was sleeping in front room and he was sleeping in the courtyard, while the appellant, Najma and Anjum were sleeping in the room at rear side. It reveals that at about 3.00 hours, he heard a noise as ''Dhap Dhap'' and awoke. He knocked the door of the room in which the appellant was sleeping, but he was not ready to open the door. Hence, PW9 sent his daughter Shabana in the room of the appellant through a window. Shabana opened the door and thereafter PW9 entered in the room and noticed that the appellant was standing near the corpse of his wife and daughter. It reveals that then both Najma and Anjum had sustained bleeding injuries and pata-stone stained with blood was lying besides the corpse. It reveals that carpet as well as quilt were soaked with blood. It reveals that after noticing such a scene, children of PW9 started crying and public gathered at the said place.
10.2 After careful scrutiny and perusal of cross-examination of PW9, we do not find any significant circumstance elicited therein except that the said house was belonging to the father of the appellant and PW9 was staying in said room. PW9 during cross-examination duly denied of having falsely deposed that he had seen the appellant standing near corpse when he had opened the door and further denied that the appellant was then not present at the said place. Thus considering the evidence of PW9 in proper perspective it can be safely said that by the said evidence, the prosecution has duly established the 3rd circumstance of both the deceased being lastly seen alive in the company of the appellant when they had been for the sleep, 4th circumstance of the appellant having an opportunity to commit the crime and 5th circumstance of soon after commission of the crime the appellant was the only person seen alive along with the corpse of both the deceased in the said room locked from inside.
10.3 We are of such a considered opinion as we do not find any substance in the submission canvassed that no other person from the said locality was examined and the prosecution rested only upon the testimony of interested witness PW9. We are of such a view because the evidence of PW9 by itself does not disclose any reason for deposing falsely against the appellant of having seen him in the said room along with the dead bodies after the door was opened. Since the close scrutiny of the evidence of PW9 reveals that he had not witnessed the incident and he had been to the said room after the incident was over and much there after the public had gathered, we do not find any substance in the submission canvassed that it was necessary to examine the members of the said public in support of the prosecution case. We are of such a view as we fail to understand as to which of the part of the prosecution tale would have been unfolded by the said person, i.e., the part which has remained to be unfolded by the witnesses examined at the trial. It is indeed true that as stated hereinabove the evidence of PW9 reveals that the said house was belonging to the appellant. However, we do not find any material brought on record during the cross-examination or even the claim on part of the appellant that due to said reason PW9 was on inimical terms against the appellant.
11. The prosecution by leading the evidence of PW1 Tukaram, panch for spot panchanama Exh. 16 has established that during the course of said panchanama, articles found at the spot and so also through the evidence of panch PW4 Chandrakant Jamadar established that the clothes of both the deceased were seized. The evidence of PW11 reveals that all the said articles were sealed at the spot. The evidence of PW11 considered along with the evidence of panch PW5 Kailas for seizure of the clothes on the person of the appellant at the time of arrest reveals that the shirt worn by him was found containing bloodstains. The evidence of PW11 reveals that all the said articles were initially deposited with PW8 ASI Ashok Vhatkar and thereafter through PW7 PC Vijaykumar were sent to Chemical Analyser. Similarly, the evidence of PW3 Dr. Gursali reveals that he has collected the blood of both the deceased and sent it to Chemical Analyser. The C.A. Reports (Exhs. 10 to 13) were received from Chemical Analyse. It is indeed true that Chemical Analyser was unable to detect the blood group of either that of both the deceased or that of the appellant. C.A. Report Exh. 10 pertaining to the clothes of the person of the deceased reveals that the same were stained with blood of group ''B''. The C.A. Report further reveals that the blood of the same group was found on the shirt of the appellant. During the examination of the appellant made u/s 313 of Cr.P.C., he has not advanced any sort of explanation regarding said blood which was found on his shirt. Thus by the said evidence, the prosecution has duly established that blood of the same group of that of deceased was found on the shirt of the appellant. Thus by the said evidence the prosecution has established the 6th circumstance that blood of same group as that of deceased was found on the shirt of the appellant. Hence, we are unable to find any fault with such a finding arrived by the trial court on the basis of the evidence surfaced at the trial.
12. Now considering the aforesaid circumstances established by the prosecution coupled with the non-explanation on part of the appellant to any of the said circumstances and further more during his examination u/s 313 of Cr.P.C. admitting the case against him being true, we are unable to find any fault with the trial Court for arriving at the conclusion that all the said circumstances taken together forms a formidable chain leading to sole inference of the appellant being perpetrator of the crime in question, i.e., committing the death of both the deceased.
13. Though we find some substance in the submission canvased that in a case involving the evidence of circumstantial nature, non-explanation on part of the culprit assumes importance only in event of said circumstances within themselves forming a complete chain leading to sole inference of the guilt of the said culprit and otherwise the said non-explanation being inconsequential due to the right of silence conferred upon the culprit by the constitution, still we find that the same would not be of any advantage to the appellant in the instant case.
14. We are of such a considered opinion as in the present case establishing of vital circumstance Nos. 3 to 6 clearly nails the appellant with crime in-question, it can be added that the evidence of PW9 establishing the said circumstances also reveals that the room was locked from inside and he has to get it opened by sending his daughter through window. In the said circumstance occurring of death of both the victims in the said room locked from inside by itself attract the provisions of Section 106 of Indian Evidence Act, which runs as under:
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him
The said provisions necessitated the appellant to give cogent explanation regarding the occurring of death of his wife and daughter in a room which was locked from inside. The failure of the appellant to give any cogent explanation for the said aspect leads to sole conclusion of the appellant being perpetrator of the crime, which has taken place qua both the deceased.
15. Now considering the question of the offence committed by the appellant, we find the submission advanced by the learned APP being more weighty, i.e., to say the time at which the incident had taken place and without surfacing of any evidence on record denoting occurring of quarrel in between the appellant and deceased it will not be permissible to presume occurrence of such a quarrel as tried to be canvassed by learned counsel for the appellant. The learned APP was very much right in submitting that all the said facets denote that the crime in question was committed with planning against the hapless victim leaving them no opportunity to escape. Thus the learned APP was further right in submitting that the act on part of the appellant, which has lead to the death of both the deceased as established by the evidence of PW3 Dr. Gursali would be squarely covered by section 300 of the I.P.C. as the said act would not be covered by any of the Exception provided to said Section. We are also of considered opinion that in the criminal cases intent of culprit has to be decided by taking into consideration all relevant circumstances connected with it and also inclusive of the results ensued. Hence, we find that the result ensued in the instant case, the absence of evidence of there being quarrel and/or sudden fact and/or pre-mediation on part of the wife and daughter clearly denotes that the appellant was intending to cause the death of his wife and daughter. Having regard to the same, we do not find any substance in the submission canvassed that the offence occurred at the hands of the appellant would not transcend beyond the offence u/s 304, Part-I of I.P.C.
16. Resultantly, we do not find any merit in the appeal and dismiss the same.
17. Registry to furnish the copy of the aforesaid judgment to the appellant through the Superintendent of Prison at which he is lodged. We appreciate the valuable services given by the learned appointed counsel for the appellant, who has within short time of his appointment had prepared and made every endeavour to assist us in disposing the appeal. We quantify his fees to the extent of Rs. 2200/-.
