1. The appellant Shrirang Krishna Gholap has been convicted of an offence under Section 302 of the Penal Code by the learned Additional Sessions Judge, Bombay, and he has been sentenced to suffer transportation for life. This is an appeal against that order of conviction and sentence.
2. The facts of the case as contended by the prosecution may shortly be stated. The deceased woman in this case was one Shantabai. The prosecution says that she had been living with one Maruti for two or two and half years. Some six months before the date of this incident the appellant was introduced to the said Maruti by Shantabai. The reason for the introduction was that the appellant desired to board et the place of Maruti and Shantabai.
Maruti agreed to the proposal with the result that the appellant was permitted to board at the place where Maruti and Shantabai were residing! together. About a month after the appellant started boarding with Maruti and Shantabai, Maruti went to his native place. He stayed in his native place for about a month and then returned to Bombay, when he returned to Bombay, Shantabai complained to him that the appellant had misbehaved with her by molesting her during his absence.
When Maruti was informed of this, he immediately asked the appellant to cease boarding at his place. Thereafter the appellant did not go to the place of Maruti and Shantabai for boarding. Some time thereafter Maruti sent away Shantabai to her native place. Maruti thereafter stayed with one Fakir Mahomed. Some five or six days before the date of this incident Shantabai suddenly returned to Bombay.
She went to a certain laundry where Maruti was working and informed him that she hadreturned. Thereupon Maruti took her to Fakir Mahomed's house. Maruti and Shantabai began to stay together in Fakir Mahomed's house.
3. This takes us to the day upon which this incident occurred. It was 2-1-1955. It was evening about 7-30. Maruti and Shantabai started together from Fakir Mohomeds place to Parshuram's house. Parshuram's place of residence was in Girgaonkar Wadi. Maruti and Shantabai arrived near the entrance of Girgaonkar Wadi. At that place Maruti asked Shantabai to wait near Irani's shop and he himself went inside. He met Parshuram and invited Parshuram to go out.
Thereupon Parshuram started putting on his clothes, Maruti was just emerging back from the Wadi. In the meantime he saw the present appellant dragging Shantabai and stabbing her. When Maruti saw this he shouted 'thief, thief'. The reason for this shout probably was that Shantabai was bearing ornaments upon her person and Maruti's first reaction was that the idea of the person who was stabbing her was to take her ornaments. The appellant on hearing the shouts of Maruti ran into the Wadi.
Parshuram, who was closely following Maruti, noticed that Maruti was chasing the appellant and was shouting at the same time. So Parshuram also joined in the chase and eventually it was Parshuram who managed to catch hold of the appellant. In the meantime a certain traffic Police Constable Maruti Sakharam Mahadik, bearing No 7791/T, also heard shouts. So he arrived just about the time when Parshuram managed to apprehend the appellant from behind.
Constable Mahadik, snatched away the knife from the hand of the appellant. This knife was subsequently sent to the Chemical Analyser and the report of the Chemical Analyser and also of the Imperial Serologist was to the effect that there was human blood upon this knife. It may be noted that another Police Constable bearing No. 8441/F who at the material time was going towards the police station, also heard the shouts and he too arrived there.
All these persons took the appellant to the place where Shantabai was lying. When they arrived at the place Shantabai had already died. The police took charge of the dead body. Ornaments which were on the person of Shantabai were also taken charge of. Her clothes were also attached. The knife which had been snatched away by Constable Mahadik from the hand of the appellant was also taken charge of.
Usual investigtion was made and completed during the course of which statements of witnesses were recorded. These, shortly stated are the facts of the case for the prosecution.
4. The charge which was brought against the accused was resisted by him upon the contention that he was totally innocent. According to him, this offence was committed by Maruti himself. It would appear that the appellant's contention is that Shantabai was originally working at the house of a Marwari in Matunga. It was at that time that the appellant became acquainted with her.
The acquaintance grew with the result that Shantabai even prepared food for the appellant. This acquaintance continued for about four months. Maruti used to question her as to the reason why she was going to the appellant's house and cooking for him. Shantabai used to inform the appellant as to the conversation which Maruti used to have with her.
On one occasion, says the appellant, he (appellant) was in need of another residential room. So he asked Maruti about it and Maruti said that if he paid him (Maruti) Rs. 300/- he would see that he got a room. Thereupon the appellant paid Rs. 300/- to Maruti and Maruti got a room for him. After getting a room for the appellant Maruti told, the appellant that as he had found a room for him, the appellant should permit him to have food with him.
The appellant agreed. Be it noted that these are the contentions of the appellant. The appellant goes on to contend that after Maruti started taking food with him and Shantabai, Shantabai complained to him (appellant) that Maruti was molesting her. Thereupon the appellant asked. Maruti not to visit his house even for food. The result was that Maruti started bearing grudge against the appellant.
Some time thereafter Maruti even assaulted the appellant and the result was that the appellant had to file a complaint about it at the Mahim Police Station against Maruti. The appellant goes on to say that on one occasion Maruti had beaten Shantabai. Thereafter the appellant was obliged to send Shantabai to her native place. Speaking about the incident of 2-1-1955, the appellant contends that on that day he, Shantabai and his brother Balu were all going to a picture.
They did not get tickets for the picture and so they desired to go to a circus. As they were going along, Shantabai wanted to ease herself and so she went inside the Wadi. After she came out of the Wadi, the appellant and his brother Balu went inside the Wadi to ease themselves. Shantabai was waiting outside on a footpath. At that time, says the appellant, Maruti came from somewhere and caught hold of Shantabai by her arm and began to drag her.
Shantabai shouted. The appellant says that he heard Maruti asking Parshuram for a knife. Parshuram took out a knife and gave it to Maruti. Thereafter Maruti struck Shantabai with that knife. The appellant says that he saw all these. He saw his wife falling. He went upto her and began to cry. In the meantime a certain traffic Police Constable arrived and Parshuram and Maruti forestalled him by complaining to the traffic Constable against him.
It was thereupon that the appellant was arrested and a knife was falsely fastened on him. This, shortly stated, is the gist of the defence that Shantabai was not stabbed by the appellant but by Maruti and that it was at the instance of Maruti and Parshuram that the Police Constable Mahadik involved him in this offence.
5. At the end of the trial the Jury returned a majority verdict of 8 against 1 to the effect that the appellant was guilty of an offence under Section 302 of the Penal Code. As the conviction of the appellant has rested upon the _acceptance of the above-mentioned majority verdict of the Jury by the learned Judge, it would not be permissible to us to go into the evidence ourselves and sift that evidence and decide whether the evidence would or would not be sufficient for sustaining the conviction of the appellant under Section 302, I. P. C., unless the appellant's learned Advocate is able to satisfy us that the learned Judge's charge to the Jury suffers from infirm-ties such as misdirections or non-directions amounting to misdirections.
In this connection, Mr. Gupte for the appellant invited our attention to certain observations made by the learned Judge in para. 61 of his charge to the Jury and the observations to which our attention was invited are these:
'Gentlemen, you must have noticed that Bhiku, the Police Constable, has not been called by the defence. If he had come he would have probably thrown light on the fact as to whether at his place Shantabai and the accused had come and stayed or not, whether they had at any time dined at his place, whether he knew about the marriage or not and whether on or about the date Balu came to him and reported the incident to him as alleged or not.
At the same time remember that the defence case is that no independent person has been called as a prosecution witness. No witness from the pan shop or from the hotel has forward to depose to the incident which happened near about this place. It is also the criticism of the defence that no witness from the Wadi has come forward.
Consider that criticism of the defence and see whether to your mind there is sufficient reliable and convincing evidence of the prosecution to bring home the charge against the accused persons.'
We are unable to discover any misdirection in these observations made by the learned Judge to the Jury. What the learned Judge pointed out to the Jury was that if Bhiku had been examined, by the defence as a witness for the appellant it was probable that he might have mentioned certain facts.
It is to be noted, however, that the learned Judge did not tell the jury that because Bhiku was not examined by the appellant as a witness in his defence the Jury should disbelieve the version of the appellant. In the course of his charge to the Jury, in the earlier part the learned Judge had pointed out to the Jury that there was no obligation cast upon the accused to open his mouth or to state any version before the Court.
In these circumstances, since the learned Judge did not tell the Jury that the failure on the part of the appellant to examine Bhiku in his defence was a circumstance against him and that from that circumstance any adverse presumption should be drawn against the appellant, we are unable to agree with Mr. Gupte that the learned Judge's charge suffered from any misdirection so far as the abovementioned observations contained in paragraph 91 were concerned.
6. Next Mr. Gupte invited our attention to Paragraph 88 of the learned Judge's charge to the Jury and he made these comments before us. Mr. Gupte said that according to the evidence of the doctor who was examined in this case Shantabai's death might have occurred some 17 or 18 hours before the post mortem examination of the dead body was done by the doctor.
The post mortem examination was done by the doctor at 10 in the morning on 3-2-1955. Therefore, according to the interval of time stated by the doctor, Shantabai should have met with her death at about 5 P. M. on 2-2-1955. But Mr. Gupte contended that the case of the prosecution was that Shantabai was alive till about 8 O'clock at night on 2-2-1955, and had met with her death within a few minutes of that hour.
Mr. Gupte's contention was that the doctor was not quite accurate when he stated that Shantabai might have met, with her death some seventeen or eighteen hours' before the time when he performed the post mortem examination upon her dead body. From this Mr. Gupte proceeded to argue that the evidence of the doctor, in which he stated that after receiving injuries upon her person Shantabai might have died within 5 minutes or so might also be inaccurate and that this inaccuracy should have been brought to the notice of the Jury, but it was not brought.
In this manner said Mr. Gupte. the learned Judge's charge to the Jury, so far as Paragraph 28 was concerned, suffered from a non-direction which amounted to a misdirection. We have considered these submissions carefully but we regret we do not see any force in them. Whatever material it was relevant on this particular point was put by the learned Judge before the Jury, for instance, he put the entire evidence of the doctor before the Jury, told the Jury that according to the doctor Shantabai must have died within five minutes of having received injuries upon her person and also informed the Jury that Shantabai might have met with her death some 17 or 18 hours before the time when the post mortem examination was done on her dead body.
The learned Judge also drew the attention of the Jury to Balu's evidence and also to the evidence of Constable Mahadik. Now the evidence of Balu was entirely in favour of the accused. The witness Balu, who is a brother of the accused and who was examined as a witness for the accused, had supported the contention of the accused that it was Maruti who had taken a knife from Parshuram and had attacked Shantabai with that knife.
It was Balu's evidence that the knife was falsely fastened upon the appellant and that that was done at the instance of Maruti and Parshuram. All this evidence was also put by the learned Judge before the Jury and it was thereafter that the Jury was asked to consider whether at the time at which Balu alleged that a certain declaration was made by Shantabai in which she had involved not the appellant but Maruti, any declaration could have been made by Shantabai.
In our opinion, therefore, the observations made by the learned Judge in paragraphs 88 and 89 of his charge to the Jury were perfectly correct and there was no misdirection or non-direction about them.
7. Next Mr. Gupte invited our attention to paragraph 41 of the learned Judge's charge to the Jury and his comments on this paragraph were these. Mr. Gupte stated that there was a pan shop which was at a distance of 9 feet from the entrance to the Wadi. The dead body of Shantabai was lying near the pan shop. Mr. Gupte argued that in these circumstances the learned Judge should have put to the Jury that it was an infirmity in the case of the prosecution that the owner of the pan shop was not examined as a witness.
Mr. Gupte contended that if the owner of the pan shop had been examined, he would have been in a position to throw light upon the question whether Shantabai was attacked by the appellant or whether she was stabbed by Maruti. We have considered these submissions also carefully. In our opinion, the learned Judge could not go on conceiving all hypothetical contingencies and put them before the Jury.
There was no evidence in the case to show that at the material time the pan shop in question was open. There was no evidence to show also that there were any customers purchasing pans at the shop or even that the owner was present in the shop. In these circumstances, we do not see why it was necessary on the part of the learned Judge to point out to the jury that it was a circumstance against the prosecution that the owner of the pan shop was no6 examined as a witness for the prosecution.
8. Lastly Mr. Gupte referred us to paragraph 78 of the learned Judge's charge to the Jury in which the learned Judge observed:
'Consider the submission of the prosecution that the accused could not have married Shantabai when his first wife was alive in the State of Bombay when bigamous marriages are prohibited.'
Mr. Gupte's objection to these observations was that the mere fact that there was a Bigamous Marriages Act on the Statute Book would not mean that the appellant could not have married Shantabai. Mr. Gupte said that the appellant might have contravened the law and married Shantabai, though that marriage might have been void.
In our opinion, the learned Judge when he made the above-mentioned observations did not commit any misdirections. All that he did was to point out to the Jury whether it was probabla in view of the existence of the Bigamous Marriages Act on the Statute Book that the appellant would have married Shantabai.
The learned Judge did not tell the Jury that the appellant could not have contravened the law and could not have married Shantabai. It was for the Jury, in the light of the above observations of the learned Judge, to come to a conclusion of their own on the evidence before them whether Shantabai was or was not the wife of the appellant. That being so, even in para. 18 we are unable to discover any misdirection or non-direction amounting to misdirection.
9. Mr. Gupte was not able to refer us to any other portion of the charge in respect of his contention that the learned Judge's charge to the Jury suffered from misdirections or non-directions. In our view, the charge was a fair charge free from misdirections and non-directions. That being so it would not be open to us to go into the evidence for ourselves in order to determine the guilt or otherwise of the appellant. The appeal, therefore, fails and is dismissed.
10. Appeal dismissed.