Tags Murder

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2057 of 2010, Judgment Date: Feb 26, 2016

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2057 OF 2010

GAJANAN DASHRATH KHARATE                                        ...Appellant

                                   Versus

STATE OF MAHARASHTRA                                             …Respondent


                               J U D G M E N T


R. BANUMATHI, J.


            This appeal arises out of the judgment  of  the  High  Court  of
Judicature at Bombay, Nagpur  Bench  dated  02.12.2009  in  Criminal  Appeal
No.247 of 2004 affirming the conviction of the appellant under  Section  302
IPC and sentence of life imprisonment imposed on him.
2.          Briefly stated case of the prosecution is  as  under:-     PW-1-
Nagorao Kharate, cousin of the deceased-Dashrath was  residing  adjacent  to
the house of Dashrath and his son appellant-accused in village Dapura. PW-1-
Nagorao Kharate lodged a complaint at Police Station Boregaon Manju  on  the
evening of 08.04.2002 stating that on the preceding  night  i.e.  07.04.2002
at around 08.30 p.m. he heard an altercation between Gajanan-the  appellant-
accused and his father-Dashrath and Dashrath was wailing  till  about  10.00
p.m. According to PW-1-Nagorao Kharate, such incidents of  altercations  and
assault were frequent in the house of the  appellant-accused  and  therefore
he paid no attention to the incident.   On the next  day  morning  at  about
7.30 a.m.,   PW-1-Nagorao Kharate  was  informed  by  Madhukar  Kharate-PW-4
that he had found Dashrath lying dead in a pool of blood inside  his  house.
PW-1 rushed to the house of the appellant and  found  his  cousin  Dashrath-
father of the appellant lying dead in a pool of blood and  a  stone  smeared
with blood lying next to his body.     PW-1-Nagorao  Kharate  then  went  to
the Police Station, Boregaon Manju lodged  a  complaint,  on  the  basis  of
which, First Information Report was registered vide RC  No.40/2002  for  the
offence punishable under Section 302 IPC.  Investigation was taken up by PW-
7-Hanuman Rathod, who was incharge of the police station and  PW-7  recorded
the statement of witnesses. PW-6-Dr.Prashant Agrawal  conducted  autopsy  on
the body of deceased-Dashrath and noted number  of  injuries  on  his  eyes,
forehead, cheek, shoulder, elbow etc. and opined that Dashrath died  due  to
injuries to vital  organs  and  head  injuries.   Accused  was  arrested  on
09.04.2002 and while in police custody he gave a confession statement  which
led to the recovery of blood stained  clothes  of  the  accused  inside  his
house.  On chemical analysis, recovered clothes  of  the  accused  found  to
contain ‘B’ Group blood which  is  the  blood  group  of  the  deceased.  On
completion of the investigation, police filed the  chargesheet  against  the
appellant-Gajanan under Section 302 IPC and the case was  committed  to  the
Court of Sessions, Akola.
3.          To substantiate the charges against the  appellant,  prosecution
has examined as many as seven witnesses and exhibited  number  of  documents
and material objects. The accused was questioned under Section 313 Cr.  P.C.
about the incriminating evidence and circumstances and the appellant  denied
all of them and pleaded that false case has been foisted against  him.  Upon
appreciation of oral evidence and the circumstances and the conduct  of  the
appellant-accused in not giving explanation for the homicidal death  of  his
father, the trial court  convicted  the  appellant  for  the  offence  under
Section 302 IPC and sentenced him to undergo imprisonment for  life  and  to
pay a fine of rupees one thousand with default clause. Being aggrieved,  the
appellant preferred appeal  before  the  High  Court  and  by  the  impugned
judgment, the High Court dismissed the same  confirming  the  conviction  of
the appellant and the sentence of life imprisonment imposed on him.
4.           Learned  counsel  for  the  appellant  Mr.  Praveen  Chaturvedi
contended that  PW-1-Nagorao  Kharate  came  to  know  about  the  death  of
Dashrath only from PW-4-Madhukar  Kharate  and  the  High  Court  failed  to
appreciate  that  PW-1-Nagorao  Kharate  was  not  an  eye-witness  to   the
occurrence.  It was further contended that the evidence of PWs 1 and  2  are
untrustworthy and conviction of the appellant was based  on  mere  suspicion
and the High Court erred in not appreciating the lapses in  the  prosecution
case and therefore conviction of the appellant is not sustainable.
5.          Learned  counsel  for  the  respondent-State  Mr.  Kunal  Cheema
submitted that prosecution adduced direct evidence against the appellant  to
prove that he committed murder of his father-Dashrath and  the  evidence  of
two eye-witnesses PWs 1 and 2 corroborates each other and the  courts  below
rightly based the conviction upon the testimonies of PWs 1 and  2.   It  was
further submitted that prosecution has proved presence of the  appellant  at
his house at the time of incident and there  was  no  explanation  from  the
appellant as to how his father-Dashrath sustained injuries  and  the  courts
below rightly convicted the appellant under Section 302 IPC.
6.          We have carefully considered the rival contentions  and  perused
the impugned judgment and material on record.
7.          As seen from the evidence adduced by the prosecution,  deceased-
Dashrath, his wife-Mankarnabai and their son accused-Gajanan  were  residing
together. PW-1-Nagorao Kharate whose house was  adjacent  to  the  house  of
Dashrath and was also closely related to him had deposed that the  appellant
was addicted to bad habits of liquor and  gambling  and  appellant  used  to
demand money frequently from his father and quarrelled with his father.   In
his evidence, PW-1-Nagorao Kharate stated that on 07.04.2002 at  about  5.00
p.m. accused-Gajanan demanded money from his  father  and  when  his  father
refused to give money to the appellant, the appellant abused his father  and
thereafter left  the  house.  PW-1  further  stated  that  appellant-accused
returned home at about 8.30 p.m., he again started abusing  his  father  and
also assaulted him and Dashrath  was  wailing  till  about  10.00  p.m.  The
testimony of PW-2-Ratnaprabha-wife of PW-1  is  to  the  same  effect  which
amply corroborates the version of PW-1.
8.          PW-1-Nagorao Kharate  stated  that  he  and  his  wife     PW-2-
Ratnaprabha and grand-daughter have witnessed  the  occurrence  but  due  to
fear of the appellant they did not intervene in the occurrence on the  night
of 07.04.2002.  On  the  next  day,  they  were  informed  by  PW-4-Madhukar
Kharate that deceased-Dashrath was lying dead in a pool of blood.   PW-1  in
his evidence stated that on 08.04.2002 at about  7.00-7.30  a.m.  he  learnt
about death of his cousin through PW-4-Madhukar Kharate and when he went  to
the house of Dashrath, he saw him dead lying in a pool of  blood.  Assailing
trustworthiness of PW-1, it was submitted that PW-1 came to know  about  the
death of Dashrath only from PW-4-Madhukar Kharate and PW-1  could  not  have
witnessed the occurrence.  Evidence of PWs 1 and 2  is  assailed  contending
that had they witnessed the occurrence, they would have certainly  tried  to
intervene in the quarrel to pacify the appellant and the  deceased  and  the
conduct of PWs 1 and 2 in not trying  to  intervene  is  unnatural  and  the
courts below ought to have disbelieved their version.
9.          On the night of 07.04.2002 after witnessing the incident, PWs  1
and 2 retired to bed.  PWs 1 and 2 did not try to intervene in  the  quarrel
between the appellant and the  deceased  as  they  assumed  that  it  was  a
routine and usual quarrel between father and son.  On the next day  morning,
when they were in their  house,  they  came  to  know  about  the  death  of
Dashrath-deceased through PW-4-Madhukar Kharate.  At the time  of  incident,
as the appellant was in a drunken state, as noted by the courts below,  PW-1
did not try to intervene in their dispute.  Further PWs 1 and 2 are  persons
of advance age.  Trial court noticed that PW-1-Nagorao  Kharate  was  of  71
years and PW-2-Ratnaprabha was of  65  years  and  therefore  it  was  quite
natural on their part to keep themselves away from the appellant;  more  so,
when the appellant was in a drunken state.   Credibility  of  PWs  1  and  2
cannot be doubted on the ground that they did not try to  intervene  in  the
incident.
10.         On behalf of the appellant,  it  was  submitted  that  delay  in
registration of first information report creates serious  doubts  about  the
prosecution case and the prosecution has not  satisfactorily  explained  the
delay.  PW-1-Nagorao Kharate lodged the complaint at Boregaon  Manju  Police
Station on 08.04.2002 at about 5.00  p.m.   In  his  evidence,  PW-1-Nagorao
Kharate stated that Boregaon Manju Police Station is about eight miles  from
their village and that they had to go to Boregaon Manju Police  Station  via
Akola.  PW-1 further stated that he went to Akola  at  3.00  p.m.  and  from
Akola he went to Boregaon Manju Police Station at about  5.00  p.m.,  as  no
vehicle was available at that time.  PW-1 further stated that it  takes  two
to three hours by walk to reach  Boregaon  Manju  Police  Station  from  his
village.  Delay in setting the law into motion by lodging of  complaint  and
registration of first information report is normally viewed by  courts  with
suspicion because there is possibility of concoction  and  embellishment  of
the  occurrence.  So  it  becomes  necessary   for   the    prosecution   to
satisfactorily explain the delay.  The object of  insisting  upon  a  prompt
lodging of the report is to obtain early information not only regarding  the
assailants but also about the part played by the accused, the nature of  the
incident and the names of witnesses. In the case at  hand,  prosecution  has
satisfactorily explained the delay  in  lodging  the  complaint.   When  the
prosecution has explained the delay in lodging  the  complaint,  prosecution
case cannot be doubted on the small delay between  the  time  of  occurrence
and in registration of first information report.
11.         Apart from the  oral  evidence,  case  of  prosecution  is  also
strengthened by recovery of blood stained clothes of the appellant.   During
chemical analysis, it was found that the shirt of  the  appellant  contained
‘B’  Group  blood  which  is  the  blood  group  of  deceased-Dashrath.  The
appellant has not offered any explanation as to presence of ‘B’ Group  blood
in his clothes, which is yet another incriminating circumstance against  the
appellant.
12.         As seen from the evidence,  appellant-Gajanan  and  his  father-
Dashrath  and  mother-Mankarnabai  were  living  together.   On  07.04.2002,
mother of  the  appellant-accused  had  gone  to  another  village-Dahigaon.
Prosecution has proved presence of the appellant at his home  on  the  night
of 07.04.2002.  Therefore, the appellant is duty bound to explain as to  how
the death of  his  father  was  caused.  When  an  offence  like  murder  is
committed in secrecy inside a house, the initial  burden  to  establish  the
case would undoubtedly be upon the prosecution.  In view of Section  106  of
the Evidence Act, there will be a corresponding burden  on  the  inmates  of
the house to give cogent explanation as to  how  the  crime  was  committed.
The inmates of the house  cannot  get  away  by  simply  keeping  quiet  and
offering  no  explanation  on  the  supposed  premise  that  the  burden  to
establish its case lies entirely upon the prosecution and there is  no  duty
at all on the accused to offer.  On the date  of  occurrence,  when  accused
and his father Dashrath were in  the  house  and  when  the  father  of  the
accused was found dead, it was for the accused to offer  an  explanation  as
to how his father sustained injuries. When the accused could not  offer  any
explanation as to the  homicidal  death  of  his  father,  it  is  a  strong
circumstance against the accused that he is responsible for  the  commission
of the crime.
13.         In Trimukh Maroti Kirkan v. State  of  Maharashtra    (2006)  10
SCC 681, it was held as under:-
“22. Where an accused is alleged to have committed the murder  of  his  wife
and the prosecution succeeds  in  leading  evidence  to  show  that  shortly
before the commission of crime they were seen together or the offence  takes
place in the dwelling home where the husband also normally resided,  it  has
been consistently held that if the accused does not  offer  any  explanation
how the wife received injuries or offers an explanation which  is  found  to
be  false,  it  is  a  strong  circumstance  which  indicates  that  he   is
responsible for commission of the crime. In Nika Ram v. State of  H.P.(1972)
2 SCC 80  it was observed that the fact that the accused alone was with  his
wife in the house when she was murdered there with “khukhri”  and  the  fact
that the relations of the accused with  her  were  strained  would,  in  the
absence of any cogent explanation by him, point to his guilt.  In  Ganeshlal
v. State of Maharashtra (1992) 3 SCC 106 the appellant  was  prosecuted  for
the murder of his wife which took place inside his house.  It  was  observed
that when the death had occurred in his custody, the appellant is  under  an
obligation to give a plausible explanation for the cause  of  her  death  in
his statement under Section 313 CrPC. The mere  denial  of  the  prosecution
case coupled with absence of any explanation was  held  to  be  inconsistent
with the innocence of the accused, but consistent with the  hypothesis  that
the appellant is a prime accused in the commission of murder  of  his  wife.
In State of U.P. v. Dr.  Ravindra  Prakash  Mittal  (1992)  3  SCC  300  the
medical evidence disclosed that the wife died of strangulation  during  late
night hours or early morning and her body was set on fire  after  sprinkling
kerosene. The defence of  the  husband  was  that  the  wife  had  committed
suicide by burning herself and that he was not at home  at  that  time.  The
letters written by the wife to her relatives showed that  the  husband  ill-
treated her and their relations  were  strained  and  further  the  evidence
showed that both of them were in one room in the night.  It  was  held  that
the chain  of  circumstances  was  complete  and  it  was  the  husband  who
committed the murder of his  wife  by  strangulation  and  accordingly  this
Court reversed the judgment of the High Court  acquitting  the  accused  and
convicted him under Section 302 IPC. In State of T.N. v. Rajendran (1999)  8
SCC 679 the wife was found  dead  in  a  hut  which  had  caught  fire.  The
evidence showed that the accused and his wife were seen together in the  hut
at about 9.00 p.m. and the accused came out in the morning through the  roof
when the hut had caught fire. His explanation was that  it  was  a  case  of
accidental fire which resulted in the death of his wife and a daughter.  The
medical evidence showed that the wife died due to asphyxia as  a  result  of
strangulation and not on account of burn injuries. It was  held  that  there
cannot be any hesitation to come to the conclusion that it was  the  accused
(husband) who was the perpetrator of the crime.”

Same view was reiterated by this Court  in  State  of  Rajasthan  v.  Parthu
(2007) 12 SCC 754.
14.         Upon appreciation of oral evidence and the circumstance  of  the
recovery of blood stained clothes of the accused  and  the  conduct  of  the
accused in not offering any explanation  for  the  homicidal  death  of  his
father, by concurrent findings, the trial court and the High  Court  rightly
convicted the appellant-accused under Section 302 IPC and  we  do  not  find
any reason to interfere with the impugned judgment.
15.         In the result, the conviction of  the  appellant  under  Section
302 IPC and the sentence of life imprisonment imposed on  him  is  confirmed
and this appeal is dismissed.   The appellant is on bail and his bail  bonds
are cancelled.   The  appellant  be  taken  to  custody  to  serve  out  the
remaining sentence.

                                                             ...……………………CJI.
                                                               (T.S. THAKUR)



                                                            ...…..……………………J.
                                                              (R. BANUMATHI)
         New Delhi;
February  26, 2016