Dismissed

Shankar Baban Yadav v. the State of Maharashtra

Bombay HC24 Jun 2015APEAL/19/2014

Case brief

AI extract

What is this about?

Criminal Appeal against conviction for murder. High Court examined circumstantial evidence including medical testimony of fatal head injury, motive of domestic discord, and the appellant's flight on a motorcycle. It held the prosecution proved guilt beyond reasonable doubt and dismissed the appeal relying on Section 106 Evidence Act.

What did the court decide?

Appeal dismissed; conviction and sentences confirmed; legal fees to appointed advocate.

Shankar Baban Yadav Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2015)

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 19 OF 2014

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Shankar Baban Yadav

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Convict Prisoner No. C/5687, 7/3 Age - 31 Years, At present lodged at Kolhapur Central Prison, Kalamba, Kolhapur.

.. Appellant

(Org. Accused)

Versus

The State of Maharashtra

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.. Respondent

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Appearances Ms. Rohini M. Dandekar Advocate (appointed) for the Appellant Mrs. A.S. Pai APP for the State

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CORAM : SMT. V.K. TAHILRAMANI &

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DR. SHALINI PHANSALKAR-JOSHI, JJ.

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DATE : JUNE 24, 2015.

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ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

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This appeal is preferred by the appellant - original

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accused against the judgment and order dated 30.11.2012

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passed by the learned Additional Sessions Judge, Satara in

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Sessions Case No. 93 of 2011. By the said judgment and

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order, the learned Session Judge convicted the appellant for

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the offence punishable under Sections 302 and 316 of IPC.

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For the offence punishable under Section 302 of IPC, the appellant was sentenced to suffer life imprisonment and fine amount of Rs. 100/-, in default, simple imprisonment for three months. For the offence punishable under Section 316 of IPC, the appellant was sentenced to suffer rigorous imprisonment for five years and fine of Rs. 100/-, in default, simple imprisonment for three months. The learned Sessions Judge directed both the sentences shall run concurrently.

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The prosecution case briefly stated, is as under:

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(a) Deceased Smita was the daughter of PW 2 Shanta. Smita's marriage took place with the appellant about six years prior to the incident. At the time of the incident, the appellant and Smita had minor daughter aged about 2 & 1/2 years. At the time of the incident, Smita was about 2 months pregnant. Smita was working as a nurse.

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(b) Sometime prior to the incident, the appellant had

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assaulted Smita with sickle as he was suspecting her character. Smita sustained grievous injuries. Due to this incident, the appellant was arrested and convicted. The appellant was in jail for one year. During the period the appellant was in jail, Smita was residing with her mother PW 2 Shanta at Solapur. After the appellant was released from

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jail, he came to the house of PW 2 Shanta and he assured her that he will maintain Smita properly, hence, Smita went to co-habit with the appellant. They stayed at Aurad for about two months. Thereafter, the appellant alone went to Satara. Few days prior to the incident, the appellant called Smita to Satara. Accordingly, Smita went to Satara. About four days prior to the incident, the appellant, his wife Smita and their minor daughter went to reside in a room of one Sharif Mahaldar. Sharif Mahaldar had taken the room on rent from PW 4 Rajendra. About 15 days prior to the

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incident, Sharif had gone to his village, hence, his brother Sajan was residing in the room. When the appellant, his wife and their minor daughter came to reside in the room, Sajan went to reside in a room of his friend. Constant quarrels used to take place between the appellant and his wife Smita. These quarrels were heard by the neighbours i.e

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PW 1 Jyotsna and PW 6 Varsharani.

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along with her family went to sleep on terrace of the building. PW 6 Varsharani along with her family also went to sleep on the terrace. However, the appellant, his wife and daughter did

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not come to sleep on the terrace. They slept in their room. On 28.4.2011 at about 2.00 a.m., a big noise was heard and the daughter of the appellant and Smita was heard weeping, hence,

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PW 1 Jyotsna looked down from the terrace and

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she saw the appellant going away from the spot on his motorcycle. Then PW 1 Jyotsna and her family along with PW 6 Varsharani and her family went to the room where the appellant was residing with his wife and child. They noticed that the door of the room was open and electric light was on. In that light, they saw Smita, the wife of the appellant, was lying in a pool of blood. They saw one big stone lying beside Smita. Smita's daughter was weeping. Jyotsna and other neighbours were frightened and they informed this fact to their landlord PW 4 Rajendra. Rajendra received message from PW 1 Jyotsna at about 3.00 a.m. He then reached the spot at about 3.30 a.m. He saw that the room was in open condition and the electric bulb was on. He saw one woman lying in a pool of blood in the room. He saw one big stone measuring about 16

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x 10 inches lying near the dead body. He then

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rushed to MIDC Police Station, Satara and lodged his FIR. Thereafter, investigation commenced. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

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Charge came to be framed against the appellant under Sections 302, 316 and 498-A of IPC. The appellant/accused pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.

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We have heard the learned Advocate for the appellant

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and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the

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parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the prosecution has proved that the appellant committed the murder of his wife Smita by assaulting her with a stone on the head.

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There is no eye witness in the present case and the

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case is based on the circumstantial evidence which is as under:-

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(i) On the day of the incident, the appellant was residing along with his wife and daughter in a room of PW 4 Rajendra;

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(ii) Constant quarrels used to take place between the appellant and his wife;

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(iii) The appellant was suspecting the character of his wife Smita. On account of this, earlier he had assaulted his wife with a sickle;

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(iv) On the night of the incident, loud sound was

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heard. The daughter of the appellant was heard weeping and at that time, the appellant was seen going away from the spot on his motorcycle. When the neighbours reached the room of the appellant, they saw Smita, the wife of the appellant, lying dead in a pool of blood.

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To prove these circumstances, the prosecution has relied on the evidence of PW 1 Jyotsna, PW 2 Shanta and PW 5 Rajendra. PW 1 Jyotsna was the neighbour of the appellant and the deceased. PW 2 Shanta was the mother of deceased Smita and PW 4 Rajendra was the landlord in whose room the appellant and deceased Smita were residing with their minor daughter.

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7. PW 1 Jyotsna has stated that she was residing in the

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house of PW 4 Rajendra on rental basis. The building was known as "Nanachi Krupa". There were eight tenants in the

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building. Each tenant was residing in a single room. Out of eight rooms, three rooms were facing towards east, three

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rooms were facing towards west, one room was facing

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towards north and one room was facing towards south. The appellant with his family was residing in the middle room facing towards west. Jyotsna was also residing in a room facing west. PW 1 Jyotsna has stated that one Sharif Mahaldar was residing along with his family in the said middle room prior to the incident. Some days prior to the incident, Sharif had gone to West Bengal. Few days prior to

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the incident, Sharif's brother Sajan came to reside in the room. About four days prior to the incident, the appellant along with his wife Smita and their daughter aged 2 and 1/2 years came to reside in the room of Sharif. On 25.4.2011, Sajan went to the room of his friend to reside. Jyotsna has stated that quarrels used to take place between the appellant and his wife. She had heard those quarrels.

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Jyotsna has further stated that on 27.4.2011 at about 10.00 p.m., she along with her family went to sleep on terrace of the building. PW 6 Varsharani along with her family also went to sleep on the terrace. However, the appellant, his wife and daughter did not come to sleep on the

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terrace. They slept in their room. On 28.4.2011 at about 2.00 a.m., a big noise was heard and the daughter of the appellant and Smita was heard weeping, hence, Jyotsna looked down from the terrace and she saw the appellant going away from the spot on his motorcycle. Then Jyotsna and her family along with PW 6 Varsharani and her family went to the room where the appellant was residing with his wife and child. They noticed that the door of the room was open and electric light was on. In that light, they saw Smita, the wife of the appellant, was lying in a pool of blood. They saw one big stone lying beside Smita. Smita's daughter was weeping. Jyotsna and other neighbours were frightened and they informed this fact to their landlord PW 4 Rajendra.

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PW 4 Rajendra was the landlord of the building in which

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the appellant, his wife and minor child were residing. Rajendra has stated that his house consisted of eight rooms. Each of the eight rooms was rented out. One Sharif Mahaldar was his tenant. He was residing in the second

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room from the north side. The said room was facing towards west. About 15 days prior to the incident, Sharif had gone to his village, hence, his brother Sajan came to reside in the room. Sharif had allotted the room to the appellant and his family. At the time of the incident, Sajan was not residing in the room and only the appellant, his wife (deceased) and his daughter were residing in that room. Rajendra has further stated that on 27.4.2011, he went to see an orchestra programme. The said programme went on till about 2.30 a.m. in the morning. At about 3.00 a.m., Mrs. Pawar (PW 1)

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who was residing in the room adjoining the room of Sajan informed him on phone that one woman was lying in a pool of blood in the room adjoining her room and the door of the room was open, electric light was burning in the said room and one small girl was in the room. On hearing this news, PW 4 Rajendra rushed to the spot. He reached there at about 3.30 a.m. He saw that the room was in open condition, electric bulb was on. One woman was lying dead in a pool of blood. He saw one big stone measuring about 16

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X 10 inches lying near the dead body. Mrs. Pawar (PW 1) told him that she had seen the appellant, his wife and their daughter in the room at about 10.00 p.m., the earlier night. Thereafter, PW 4 Rajendra rushed to M.I.D.C. Police Station, Satara and lodged his F.I.R. In the said F.I.R., he raised suspicion against the appellant.

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9. It is the prosecution case that the appellant assaulted

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his wife on the head with a stone and caused her death. This

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is borne out by the medical evidence. PW 5 Dr. Pol

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conducted the postmortem on the dead body of Smita. On

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external examination, he found the following injuries:-

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1. C.L.W. over right tempero parietal region, just above right ear. Size 12 cm X 5 cm X scalp deep. Margins lacerated;

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1. Contusion over left tempero parietal region, size 3 cm x 3 cm.

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According to Dr. Pol, the said injuries were ante mortem

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injuries. Sub-arachnoid hemorrhage over left lobe tempero parietal region was noticed by Dr. Pol. In addition, Dr. Pol

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noticed sub-arachnoid hemorrhage over right tempero parietal lobe and brain congested and oedematous.

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According to Dr. Pol, the cause of death was due to subarachnoid hemorrhage. On being shown the stone produced in the Court, Dr. Pol stated that the injury can be possible by assault with that stone on the head. Dr. Pol categorically stated that it is not true to say that if any person falls on such stone, injury can be possible. The medical evidence and the circumstances in which the dead body of Smita was

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found clearly shows that it is a case of homicidal death. The evidence of Dr. Pol further shows that Smita was two months pregnant at the time of the incident. The P.M. Notes Exh. 35 also clearly show that Smita was two months pregnant at the time of the incident. This supports the prosecution case that the appellant by his act of causing the death of his wife Smita also caused the death of the unborn

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child in the womb of Smita.

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The prosecution has also brought on record the motive

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for the appellant to commit the crime. PW 2 Shanta who is

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the mother of deceased Smita has stated about this. Shanta

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has stated that the marriage of her daughter Smita with the appellant took place about six years prior to the incident. The appellant was a Mechanical Engineer. After the marriage, both the appellant and her daughter Smita started residing at Satara. Her daughter Smita had one daughter namely Vidya. Smita was working as a nurse. Shanta has stated that prior to the incident, the appellant had assaulted Smita with a sickle as he suspected her character. Smita sustained grievous injuries. Thereafter, the appellant was arrested and convicted. He was in prison for about a year. During the period when the appellant was in jail, Smita was residing with her at Solapur. After the appellant was released from jail, he came to Solapur. The appellant assured that he will maintain Smita properly, hence, Smita went to cohabit with the appellant. Both of them resided at Aurad for about two months. Thereafter, the appellant went to Satara. About two days prior to the incident, the appellant called Smita at Satara. Accordingly Smita went to Satara. Thereafter Shanta came to know that the appellant had

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committed murder of her daughter Smita on 28.4.2011. Shanta has categorically stated that the appellant committed the murder of Smita as he suspected her character.

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The evidence on record especially that of PW 1 Jyotsna

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and PW 4 Rajendra shows that the appellant and the deceased were residing in one room in the chawl owned by

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PW 4 Rajendra. The earlier night i.e on 27.4.2011, the appellant, deceased Smita and their minor daughter were present in the room at 10.00 p.m. and the next morning at about 2.00 a.m., a loud noise was heard and the appellant was seen going away on his motorcycle and his wife was found dead in a pool of blood. The evidence on record shows that there was no other person in the house except the appellant, the deceased and their minor daughter. As such, under Section 106 of the Evidence Act, the onus to explain the circumstances under which the deceased died a homicidal death is on the appellant. Section 106 of the Evidence Act provides that when any fact is especially within

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the knowledge of any person, the burden of proving that fact is upon him.

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When an offence like murder is committed inside the

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house, the initial burden to establish the case undoubtedly will be upon the prosecution, but the nature and amount of evidence would be comparatively lighter. In view of Section

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106 of the Evidence Act, there will be a corresponding burden upon the accused to give a cogent explanation as to how the deceased died a homicidal death. Unless the appellant explains satisfactorily as to how and when the deceased died, the Court can draw presumption that the appellant is responsible for the murder of his wife in the present case.

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In the present case, the appellant in his statement under Section 313 of Code of Criminal Procedure has not furnished any explanation as to how and in what circumstances his wife died in the house. This failure on the

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part of the appellant to explain the circumstances in which

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his wife died provides an additional link in the chain of circumstances to prove his guilt.

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We may make useful referene to the case of State of

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Maharashtra Vs Teju @ Tejsingh @ Tajkumar¹ which was

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the case where the accused was seen totally alone in close

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proximity of dead body of the deceased and the accused failed to explain anything in this regard even after the prosecution had discharged its burden of proof. It has been held that failure of accused to explain anything in this regard under Section 313 lends an additional link in the chain of events which are already brought on record by prosecution for proving offence of murder against the accused.

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In the present case, the incident took place within the

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four corners of the house where the appellant was residing with his wife and minor daughter. The evidence of PW 1

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Jyotsna and PW 4 Rajendra shows that the appellant was

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1 2004 All MR (Cri) 463

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residing in the room with his wife and minor daughter. On loud noise being heard, the appellant was seen going away on motorcycle and his wife was found lying dead in a pool of blood.

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On the aspect of “last seen”, we may refer to the

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decision of the Supreme Court in the case of State of West

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Bengal Vs. Meer Mohd. Omar and others² wherein it is

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observed in paragraph nos. 36 to 38 as under:

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“36. In this context, we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

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The Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.

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2 (2000) 8 SCC 382

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Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra Vs. State of Ajmer reported in AIR 1956 SC 404: 1956 SCR 199 : 1956 Cri.L.J. 794, the learned Judge has stated the legal principle thus:

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“This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are `especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience.

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The word `especially' stresses that, it means facts that are pre-eminently or exceptionally within his knowledge.”

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In the present case, the appellant has not discharged the burden which falls upon him under Section 106 of the

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Evidence Act.

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Looking to the facts and circumstances of this case and

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

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