High Court
Legal Reasoning
Cri Appeal No.497.2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.497 OF 2022Vasant s/o. Gunaji Kale,Age : 58 years, Occ. Nil,r/o. Kundi, Tq. Dharur, Dist. Beed...AppellantVs.The State of Maharashtra, Through Police Station:Shirsala,Tq. Dharur, Dist. Beed..Respondent----Mrs.Vaishali Shinde, Advocate for appellant (appointed)Ms.S.J.Salgare, APP for respondent---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. DATE : SEPTEMBER 23, 2024JUDGMENT (Per R.G. Avachat, J.):- The challenge in this appeal is to the judgment ofconviction and order of consequential sentence dated 31.05.2019,passed by learned Addl. Sessions Judge, Majalgaon (trial court), inSessions Case No.24 of 2017. Vide the impugned order, the appellanthas been convicted for the offence punishable under Section 302 ofIndian Penal Code and therefore, sentenced to suffer rigorousimprisonment for life and pay fine of Rs.5,000/-, in default, to suffersimple imprisonment for two months. 2Cri Appeal No.497.20222.The case of prosecution before the trial court, in short,was as under:-The appellant along with his wife Ashabai (deceased)would reside together at village Kundi, Tq.Dharur, Dist. Beed. Theappellant has two sons and a married daughter. There used to bequarrels between the appellant and his wife. He would suspect hercharacter. On 15.03.2017, he took his wife to the field for harvestinggram-crop. He, however, returned home alone. His married daughter– Radha (PW 5) had come to his home. She inquired with him abouther mother. He told her to have killed Ashabai in the field. Theappellant took two Bhakaris and ran away. 3.Radha (PW 5), thereupon, raised hue and cry. Bhaurao(PW 2), her father’s uncle, was residing in the neighbourhood. Hecame to her and learnt about the appellant to have killed his wife.He (PW 2 - Bhaurao), therefore, lodged the FIR (Exh.27) with ShirsalaPolice Station. A crime vide C.R. No. 75 of 2017 was registered andinvestigated as well. Upon completion of the investigation, theappellant was proceeded against by filing the charge sheet. The trialcourt framed Charge (Exh.7). The appellant pleaded not guilty. Hisdefence was of false implication. To bring home the Charge, the 3Cri Appeal No.497.2022prosecution examined twelve witnesses and adduced in evidencecertain documents. The trial court, on appreciation of the evidencein the case, convicted the appellant and consequently, sentenced asstated above.4.Heard learned counsel for the parties. Learned counselfor the appellant would submit that PW 2 – Bhaurao (informant) gavevital admission in his cross-examination that the police had obtainedhis signature on blank paper. She meant to say that it was convertedinto FIR. It was not read over to him. According to her, the evidenceof PW 2 - Bhaurao, therefore, was unreliable. She would furthersubmit that there was house-warming ceremony in theneighbourhood of the house of the appellant. It was about little past3.00 p.m. On hearing the alleged hue and cry of Radha, not a singleneighbour had gathered there. Same suggests nothing hadhappened. Turning to the evidence on record, she took us throughthe evidence of PW 1- Sambhaji, panch witness to the crime scenepanchnama (Exh.23). She brought to our notice his evidence thatthe labels on the articles, allegedly seized from the crime-scene, didnot bear label containing his signature. She would further submitthat the Investigating Officer has admitted that an axe seized fromthe crime scene did not bear blood stains.
Legal Reasoning
4Cri Appeal No.497.20225.Learned counsel for the appellants would further submitthat the so called extra-judicial confession made by the appellant tohis daughter is a very weak piece of evidence. She relied on thejudgment of the Apex Court in the case of Pradeep Kumar Vs.State of Chhattisgarh, (2023)5 SCC 350. According to her, thestatement of Radha (PW 5) was recorded four days after the incident.Delay has not been explained. She would further submit that sincethe case was based on circumstantial evidence. She relied on thejudgment of the Apex Court, in the case of Anwar Ali and anr. Vs.State of Himachal Pradesh, 2021 AIAR (Criminal) 80, wherein,it is observed thus :-B. Circumstantial evidence – Scope and sweepof – In case of a circumstantial evidence – Thecircumstances, taken cumulatively – shouldform a chain so complete that there is noescape from the conclusion that within allhuman probability the crime was committedby the accused and none else and thecircumstantial evidence in order to sustainconviction must be complete and – Incapableof explanation of any other hypothesis thanthat of the guilt of the accused and – Suchevidence should only be consistent with theguilt of the accused but should be inconsistentwith his innocence6.Learned counsel for the appellant would further submitthat petty quarrels between the husband and the wife could not be 5Cri Appeal No.497.2022termed to be the motive to do away the wife. According to her, therewas no evidence that a month before the alleged incident, there wasquarrel between the appellant and his wife. Their son Rangnath didnot speak about the same. She would further submit that thedeceased had suffered multiple injuries and on arrest of theappellant, his blood stained shirt was seized. It would, therefore, beunnatural on the part or Radha not to notice any blood on the clothesof the appellant, while he, allegedly, made the extra-judicialconfession. The evidence of PW 5 - Radha is hearsay. Learnedcounsel further relied on the judgment of the Apex Court in the caseof Kalinga alias Kushal Vs. State of Karnataka By PoliceInspector, Hubli, (2024)4 SCC 735, to ultimately urge for allowingof the appeal.7.Learned APP would, on the other hand, submit that the25-years old married daughter of the appellant had no reason to giveevidence against her own father. The extra-judicial confession hasbeen made by the appellant to none else than his daughter. Theevidence of PW 2 – Bhaurao and daughter PW 5 - Radha wouldindicate that on the given day, the appellant along with his wife wentto the field for harvesting gram-crop. By little past 3.00 p.m., hereturned home and made extra-judicial confession. The appellant 6Cri Appeal No.497.2022then fled taking Bhakaris with him. On hearing the hue and cryraised by PW 5 - Radha, uncle of the appellant (PW 5 – Bhaurao)arrived. The persons visited the field of the appellant to find Ashabaito have been lying dead in the injured condition. The extra-judicialconfession made by the appellant, thus, proved. The appellant didnot offer any explanation, as to why did he leave his wife behind andreturned home alone. He has relied on the following authorities toultimately urge for dismissal of the appeal:-(i)Trimukh Maroti Kirkan Vs. State of Maharashtra, 2007 Cri. L.J. 20;(ii)Nivrutti Kishan Hire Vs. State of Maharashtra, AIR Online 2023 Bom 18208.Considered the submissions advanced. Perused theevidence on record and the judgment impugned herein. Also perusedthe authorities relied on.9.The case is based on circumstantial evidence. Theprosecution proposes to rely on following circumstances:-(i)Homicidal death;(ii)Motive;(iii)Extra-judicial confession and non disclosure of the fact within the exclusive knowledge of the appellant. 7Cri Appeal No.497.2022Homicidal Death :- 10.PW 9 – Dr.Pramod conducted autopsy on the mortalremains of deceased Ashabai. He noticed following injuries on herperson:-1.Two were incised injuries over right highpartial region of sizes, 3x0.5 cm. and 4x0.5 cm.,mussel deep margins infiltrated with blood.2.Incised injury over right occipital region of size4x5 cm. muscle deep, margins infiltrated with blood.3.Two incised injuries over right partial region ofsizes 6x0.5 cm. bone deep and 3x0.5 cm., muscle deepmargins infiltrated with blood.4.Chop injury over right lateral upper third regionof neck of size 9.5 x2.5 cm. muscle deep. Obliquelyplaced and beveling present over upper margins,margin infiltrated with blood.5.Chop injury over right lateral lower third regionof neck of size 6.5 x 1 cm. muscle deep, horizontallyplaced with inner angle showing tailing of 2.5 cm inlength, margins infiltrated with blood.6.Incised injury over right lateral lower thirdregion of neck of size 5x0.1 cm., skin deep horizontallyplaced, margins infiltrated with blood.7.Chop injury over left anterior-lateral aspect inupper third region of neck of size 12x2 cm. bone deep,obliquely placed with inner angle showing tailing of 4cm. length, margins contused and infiltrated with blood, 8Cri Appeal No.497.2022underline tissue shows clearcut, external carotid-arteryand internal jugular vein shows clean cut with fracture ofbody of C-3 vertebra with clean cut fractured edges andinfiltration of blood.8.Chop injury over left lateral aspect in upper thirdregion of neck of size 7x1 cm., muscle deep, obliquelyplaced with upper margins shows beveling, marginscontused and infiltrated with blood.9.Incised injuries over left anterior middle thirdregion of neck of size 4x1 cm., muscle deep,horizontally placed, inner angle shows tailing oflength 4.5 cm, margins contused and infiltrated withblood.10.Chop injury over left anterolateral aspect, inmiddle third region of neck of size 6x2.5 cm underlinemuscle and tracheal rings shows clean cut injury,horizontally placed, lower margins shows behavingmargins contused and infiltrated with blood.11.Incised injury over left forearm, lower third,posterior surface of size 5x1 cm. bone deep with interlinefractured of lower third shaft of ulna, margins infiltratedwith blood.12.Incised injury over right hand, dorsum of size 3.05cm. muscle deep proximal to left index and middle finger,margins infiltrated with blood. PW 9 – Dr.Pramod opined the deceased to have died of“Hemorrhagic shock due to multiple incised injuries over neck”.Inquest panchnama (Exh.56) is consistent with the injuries noticed 9Cri Appeal No.497.2022by the Medical Officer on the person of the deceased. As such, thefact that Ashabai met with homicidal death is duly proved. Motive and extra-judicial confession and non disclosure ofthe fact within the exclusive knowledge of the appellant :-11.PW 5 – Radha, daughter of the appellant, testified that on15.03.2017, both appellant and her mother had been to their field forharvesting gram-crop, as there was possibility of raining. Her motherhad told her that there was house-warming ceremony in theneighbourhood and she would come to take meal there. It is furtherin her evidence that the appellant alone returned home by 03.00p.m. with a gunny bag containing gram. She inquired with him twiceabout her mother and questioned him, as to why she (Ashabai) didnot return. The appellant did not speak for a while. He asked her topack two Bhakaris. She obliged. The appellant then went out of thehouse and told to have killed her mother in the field. He then ranaway. She tried to chase him and raised shouts. It is further in herevidence that her grandfather - Bhaurao (PW 2) and one Baburaoalso followed her. She related them her father to have killed hermother. Both of them, therefore, went to the field. On their return,they told her about the incident to have taken place. 10Cri Appeal No.497.202212.It is further in the evidence of PW 5 – Radha that threemonths before the incident, she had been to her parental house fordelivery. That time, there was quarrel between the appellant andher mother. The appellant had threatened to kill her. He wassuspecting her character. Her brother, who used to be atAurangabad, had just come that day. He, therefore, took Ashabai toher maternal house, at Waghalgaon. Thereafter, the appellantbrought Ashabai back from her parental house with the assurance totreat her well. According to her (PW 5), she gave statement beforelearned Judicial Magistrate, First Class. She referred the same(Exh.35)13.PW 5 – Radha was subjected to cross-examination. True,she did not speak about having seen blood stains on the clothes ofthe appellant when he had returned home. She even did not speakabout the persons in the neighbourhood to have gathered at herresidence on hearing her hue and cry. It is also true that her brotherdid not speak about his sister (Radha) to have told him the appellantto have made her the extra-judicial confession. It is also true thather statement was recorded four days after the incident. 11Cri Appeal No.497.202214.Close reading of the cross-examination of PW 5 – Radhawould indicate that nothing has been brought on record to suggesther to have any reason to speak against her own father. She was 25years old lady (a person of understanding). Her evidence before thecourt has been reinforced by her statement (Exh.35) recorded underSection 164 of the Code of Criminal Procedure. What has been toldto her by the appellant as extra-judicial confession, was found to becorrect since PW 2 – Bhaurao immediately went to the field and sawthe appellant’s wife dead. The crime-scene panchnama (Exh.23)reinforces the same, although the article seized from the crime-scene did not bear labels containing signatures of the panchwitnesses .15.PW 2 – Bhaurao is uncle of the appellant. It is in hisevidence that on hearing cries of Radha (PW 5), he went to herhouse. She related him the appellant to have told her aboutcommitted murder of his wife. He, thereafter, went to the field. Hesaw the dead body of Ashabai. Some persons gathered there. Hethen lodged the FIR (Exh.27). True, in the cross examination, hetestified that the police had obtained his signature on blank paperand contents thereof were not read over to him. To all otherquestions, he stood the ground. He denied to have not been told byRadha the appellant to have made extra-judicial confession. 12Cri Appeal No.497.202216.PW 3 – Nanasaheb and PW 4 – Kishor, panch witnesses tothe seizure of clothes of the appellant, did not stand by theprosecution. PW 6 – Kautaji’s evidence is only to the effect that onhearing about the news of murder of Ashabai, he went to the field ofthe appellant along with Bhaurao (PW 2) and one Babarao Kale andnoticed the dead body of Ashabai. It is true that PW 2 – Bhaurao didnot state to have accompanied by PW 6 – Kautaji. The fact, however,is that the evidence was recorded little over one and half years afterthe incident. PW 2 – Bhaurao might not have remembered PW 6 –Kautaji to have been with him. Even if we ignore the same, the factremains that the dead body of Ashabai was found in her own field.She had suffered multiple injuries.17.PW 7 – Manik is son of the appellant. He was residing atAurangabad. He came to village Kundi in response to a phone call.His evidence indicates that on his coming to the village, his sister –Radhabao (PW 5) related him about the appellant to have made theextra-judicial confession. The evidence of this witness is not of muchimportance, since he was not in the village on the given day. 18.PW 8 – Rangnath is another son of the appellant. Hewould reside along with his mother and the appellant, at village 13Cri Appeal No.497.2022Kundi. His evidence, however, indicates that he had gone to villageShirsala between 10.00 am. and 11.00 am. on the fateful day. Assuch, he was not aware that the appellant along with his mother hadbeen to the field by 11.00 in the morning. Although he testifiedaccordingly, his evidence however indicates that pursuant to the callmade by his friend Vijay, he rushed to the village. His father was notthere. His evidence would be helpful for the prosecution to indicatethat the appellant was in the village on the given morning but wasnot there while the dead body of his wife was found. It reinforces thecase of PW 5 – Radha that the appellant fled from the village littlepast 03.00 pm. PW 10 – Tulshiram is Police Constable, who carriedthe Muddemal articles to the Regional Forensic Science Laboratory,while PW 11 – Sanjay is witness to the inquest panchnama (Exh.56).It was PW 12 – Harishkumar, who did investigation of the crime.19.It is true that the extra-judicial confession is generallyconsidered to be a weak piece of evidence. It is, however, not thatthe same cannot be acted upon. The extra-judicial confession isgenerally made to a person in confidence. In the case in hand, itwas made by the appellant to none other than his grown updaughter – Radha (PW 5). She had no reason to speak against herown father. The extra-judicial confession is proved true, since PW 2 - 14Cri Appeal No.497.2022Bhaurao, immediately, rushed to the field of the appellant to findAshabai to have suffered multiple injuries and was dead. Theappellant was in the village on the given day. PW 5 – Radha testifiedthat the appellant had taken his wife to the field for harvesting gramcrop by 11.00 in the morning. The appellant alone returned home by03.00 p.m. and on inquiry, he told to have killed her mother. It isalso in her evidence that the appellant was suspecting her character.In view of Section 106 of the Evidence Act, it was for the appellant toexplain the circumstances, which were exclusively within hisknowledge. Those circumstances are relating to what had happenedwith his wife post he took her to the field. He did not offer anyreason as to why he alone returned home from the field. As such, allthe circumstances relied on by the prosecution have been provedupto the hilt. It is the appellant and none else, who has committedmurder of his wife.20.In view of the above, the trial court has rightly convictedthe appellant for the offence of murder and consequently, sentencedto suffer life imprisonment. We find no reason to interfere with theimpugned order. The appeal, thus, fails. The same is dismissed. 15Cri Appeal No.497.202221.Fee of learned counsel appointed to represent theappellant is quantified at Rs.12,000/- (Rupees Twelve Thousand).[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP