High Court
Legal Reasoning
Cri.Appeal No.183/2020with 186/2020:: 1 ::CORRECTED JUDGMENTIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.183 OF 2020Kishor s/o Murlidhar Bachkar,Age 23 years, Occu. Agri.,R/o Watapur, Tq. Newasa,Dist. Ahmednagar.… APPELLANT VERSUSThe State of MaharashtraThrough In-charge Police station Officer,Sonai Police Station, Tq. Newasa,Dist. Ahmednagar (Copy for respondent to be served on Public Prosecutor, High Court, Bench at Aurangabad) … RESPONDENT.......Mr. S.V. Kurundkar, Advocate with Mr. R.N. Chavan, Advocate for appellant Mrs. Uma S. Bhosle, A.P.P. for respondent....…WITHCRIMINAL APPEAL NO.186 OF 20201)Murlidhar s/o Sabaji Bachkar,Age 62 years, Occu. Agri.,R/o Watapur, Tq. Newasa,Dist. Ahmednagar.2)Tanhabai w/o Murlidhar Bachkar,Age 57 years, Occu. Agri.R/o Watapur, Tq. Newasa,Dist. Ahmednagar.… APPELLANTSVERSUS Cri.Appeal No.183/2020with 186/2020:: 2 ::The State of MaharashtraThrough In-charge Police station Officer,Sonai Police Station, Tq. Newasa,Dist. Ahmednagar (Copy for respondent to be served on Public Prosecutor, High Court, Bench at Aurangabad) … RESPONDENT.......Mr. S.V. Kurundkar, Advocate with Mr. R.N. Chavan, Advocate for appellant Mrs. Uma S. Bhosle, A.P.P. for respondent....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 30th September, 2024.Date of pronouncing judgment : 15th October, 2024.JUDGMENT (PER R.G. AVACHAT, J.) :The challenge in both these appeals is to ajudgment and order of conviction and consequential sentencepassed by the Court of Additional Sessions Judge, Newasa,District Ahmednagar on 13/2/2020 in Session CaseNo.14/2018. Vide impugned order, the appellant Kishor inCriminal Appeal No.183/2020 and the appellants Murlidhar andTanhabai in Criminal Appeal No.186/2020 have been convictedfor the offence punishable under Section 498-A read withSection 34 of the Indian Penal Code and sentenced to Cri.Appeal No.183/2020with 186/2020:: 3 ::undergo rigorous imprisonment for two years and to pay fine ofRs.5000/-, in default to suffer S.I. for three months. The appellant Kishor has also been convicted forthe offence punishable under Section 302 of the Indian PenalCode and sentenced to undergo imprisonment for life and topay fine of Rs.10,000/-, in default to suffer S.I. for 6 months.Both the sentences against the appellant Kishor have beendirected to run concurrently. The appellants have been acquitted of the offencespunishable under Sections 3 and 4 of the Dowry ProhibitionAct, 1961 and Sections 323, 504, 506, 340-B, 201 r/w 34 ofthe Indian Penal Code. 2.Facts giving rise to the present appeals are asfollows :- Jayshree (deceased) was daughter of P.W.2Dadabhau. She married appellant Kishor about one and halfyear before the incident dated 26/8/2017. Jayshree was nottreated well at her matrimonial home. All the appellants andone of their relatives (original accused No.4 – since acquitted) Cri.Appeal No.183/2020with 186/2020:: 4 ::would harass and ill-treat her so as to coerce her to meetunlawful demand of money for purchase of motorbike and/orpayment of the loan raised for the purchase of the saidmotorbike.3.It is also his case that, by 1.30 a,.m. on 26/8/2017,he received a phone call of the father-in-law of Jayshree,informing that she was not making movements. He along withhis relations, therefore, rushed to the Government Hospital.Having seen her, he found blouse on her person and fullundergarment (Parkar) were torn. Her body had turned black.Her neck was swollen. She was unable to speak. She was,therefore, rushed to the Civil Hospital at Ahmednagar. Shewas even taken to the hospital at Loni. The Medical Officerthere told she died of throttling. After the last rites wereperformed on her body at Watapur, P.W.2 Dadabhau lodgedthe F.I.R. (Exh.30) with Sonai Police Station.4.Based on the F.I.R., a crime vide C.R. No.116/2017was registered for offence punishable under Section 304(B),498(A), 323, 504, 506 r/w 34 of the Indian Penal Code. Lateron Section 302 of the Indian Penal Code was invoked. The Cri.Appeal No.183/2020with 186/2020:: 5 ::crime was investigated. Appellants were arrested. Statementsof persons acquainted with the facts and circumstances of thecase were recorded. Crime scene panchanama was drawn.Inquest and autopsy were conducted. On completion of theinvestigation, a charge sheet was filed.5.The Trial Court framed the Charge (Exh.16) againstthe appellants and one Bhanudas Bachkar (since acquitted) forvarious offences. The appellants pleaded not guilty. Theirdefence before the Trial Court was that the deceased was notkeeping well. She was unable to conceive. She might havemet with natural death. 6.To bring home the charge, the prosecutionexamined 11 witnesses and adduced in evidence certaindocuments. On appreciation of the evidence in the case, theTrial Court convicted the appellants and sentenced them asstated above.7.Heard. Learned Advocate for the appellants wouldsubmit that, it was an arranged marriage. Financial status ofthe father of deceased Jayshree was not sound. Theappellants owned agricultural field and were financially better Cri.Appeal No.183/2020with 186/2020:: 6 ::than the informant – P.W.2 Dadabhau. He took us through theadmissions given by P.W.2 Dadabhau to indicate that it was hewho used to borrow money from appellant Kishor onoccasions. He then took us through the evidence of P.W.7Sanjay to indicate that the appellant Kishor had bought amotorbike with the financial assistance of a Society. P.W.7Sanjay stated that appellant Kishor had paid Rs.16,000/- asdown payment and was regular in payment of Equal MonthlyInstallments (E.M.Is.) of Rs.2444/-. He then adverted ourattention to the admission of P.W.2 Dadabhau that hiscompanion narrated the contents of the F.I.R. and he simplysigned below the same. According to the learned Advocate, assuch, there was no case for conviction of the appellants for theoffences punishable under Section 498-A of the Indian PenalCode.8.So far as regards conviction for the offencepunishable under Section 302 of the Indian Penal Code isconcerned, he would submit that, the appellant Kishor, havingseen his wife not making movements, rushed her to thehospital with the assistance of neighbours. He then advertedour attention to the evidence of P.W.5 Dr. Shilpa to submit that, Cri.Appeal No.183/2020with 186/2020:: 7 ::both of them had been to P.W.5 Dr. Shilpa to get examinedthemselves for gyneacological problem and conception aswell. Learned Advocate meant to say that the appellants weretaking all the care of the deceased Jayshree. It was alsobrought on record that the appellants Murlidhar and Tanhabaiwere residing in adjoining, but different room. LearnedAdvocate, in the alternative, would submit that, it would at themost be an offence punishable under Section 304 Part II of theIndian Penal Code. The appellant has put on record this sideof the story in writing while he was examined under Section313 of the Criminal Procedure Code. He wanted to havecoitus with his wife. She refused. She even abused him that,“He was not a man”. The wife Jayshree became aggressive.She assaulted him and even caught hold of his neck. With aview to save himself, he too caught hold of her neck. Her neckgot pressed. She might have died thereby. The appellant didnot have any intention to kill he. He immediately rushed her tothe hospital with the assistance of the neighbour P.W.6Govardhan. Learned Advocate ultimately urged for convertingthe appellant’s conviction from the offence punishable underSection 302 to Section 304 of the Indian Penal Code. Cri.Appeal No.183/2020with 186/2020:: 8 ::9.The learned A.P.P. would, on the other hand,submit that, the offence took place within the fourwalls of thematrimonial home of deceased Jayshree. In thecircumstances, there could be no eye witnesses to theincident. In view of Section 106 of the Evidence Act, it is forthe appellant Kishor to explain the circumstances in whichJayshree died. She adverted our attention to the post mortemreport to indicate that Jsyshree died of throttling. Theappellant could have prevented aggression of deceased, ifany, by other means. Killing his wife by throttling goes a longway to indicate his intention was to kill his wife. She took usthrough the entire evidence on record to ultimately urge fordismissal of the appeals.10.Considered the submissions advanced. Perusedthe evidence on record. Also perused the judgment impugnedherein. Let us appreciate the evidence on record. Offence under Section 498-A of the Indian Penal Code -11. Jayshree was a daughter of P.W.2 Dadabhau.She had married appellant Kishor about one and a half yearbefore she breathed her last on 26/8/2017. P.W.2 Dadabhau Cri.Appeal No.183/2020with 186/2020:: 9 ::testified that, he incurred the marriage expenses and paid theappellants dowry. According to him, the appellants would notallow Jayshree to talk with him on cell phone. They hadremoved the Sim Card from her cell phone. Whenever sheused to meet him, she would relate her woes. She had relatedhim of being ill-treated to fetch money from him for purchase ofmotorbike, and/or repayment of the loan raised for purchase ofthe same. He had, therefore, reasoned with the appellants.12.Aforesaid is the evidence in respect of the offencepunishable under Section 498-A of the Indian Penal Code. Forbetter appreciation, Section 498-A is reproduced below :-“498-A) Husband or relative of husband of a womansubjecting her to cruelty :- Whoever, being thehusband or the relative of the husband of a woman,subjects such woman to cruelty shall be punishedwith imprisonment for a term which may extend tothree years and shall also be liable to fine.Explanation:- For the purpose of this section,“cruelty” means –(a)any wilful conduct which is of such a natureas is likely to drive the woman to commit suicide orto cause grave injury or danger to life, limb or health(whether mental or physical) of the woman; or (b)harassment of the woman where suchharassment is with a view to coercing her or anyperson related to her to meet any unlawful demand Cri.Appeal No.183/2020with 186/2020:: 10 ::for any property or valuable security or is onaccount of failure by her or any person related to herto meet such demand.”13.In his cross-examination, P.W.2 Dadabhauadmitted that, one Dhaygude had accompanied him to thePolice Station. It was Dhaygude who related everything to thepolice. It was reduced into writing. He simply put his signaturebelow the said writing. The same indicates that the contents ofthe F.I.R. were not narrated by P.W.2 Dadabhau. So far asregards alleged ill-treatment of Jayshree in connection with theunlawful demand for purchase of motorbike is concerned,P.W.2 Dadabhau has given a vital admission to the effect thatwhenever he used to be in financial need, he would borrowmoney from appellant Kishor. His own financial condition waspoor. The appellant owned agricultural field. 14.Then we have evidence of P.W.7 Sanjay. He wasserving with the Samarth Auto, Sonai. It is in his evidence that,appellant Kishor had purchased a motorbike on EMIs ofRs.2444/-. He was regularly making payment thereof whendown-payment of Rs.16,000/- was made by him in one go. Cri.Appeal No.183/2020with 186/2020:: 11 ::15.P.W.5 Dr. Shilpa testified that, Kishor and Jayshreehad been to her to get examined themselves as Jayshree didnot conceive. Dr. Shilpa was a Gynaecologist. The sameindicates that, the appellant Kishor was taking care of his wife.15.The aforesaid evidence goes a long way to inferthat the offence punishable under Section 498-A of the IndianPenal Code could not be brought home. The Trial Court oughtnot to have convicted the appellants for the said offence. Theappellants, therefore, deserve to be acquitted thereof. Section 302 IPC – Murder :17.P.W.3 Dr. Mohan Pawar was the Medical Officer,Rural Medical College, Loni. He conducted autopsy on themortal remains of Jayshree. He noticed following injuries onthe person of Jayshree :(1)Crescent shaped scratch abrasion present over neck,anterior aspect, 6.9 cms. below the mid of chin and 7.1cm, above the suprasternal notch, 1.4 cm. in length.Surrounding area over the neck contused over an areaof 5.0 x 0.9 cms, more on right side. On cut sectionbright red coloured ecchymoses seen underneath tissueand neck muscle.On internal examination, bright red colouredecchymoses seen over supra-glottis region on bothsides.
Legal Reasoning
Cri.Appeal No.183/2020with 186/2020:: 12 ::(2)Scratch abrasion present over right shoulder, 0.8 cms. inlength, present 3.4 cm. above lateral end of right clavicleand 4.5 cms. medial to shoulder tip, reddish in colour.(3)Scratch abrasion present over right lower chest, 0.7cms. in length, present 10.9 cms. below the right nippleand 6 cms. right to midline, reddish in colour.In his opinion, Jayshree died due to asphyxia dueto throttling. The post mortem report finds place at Exh.43. In his cross-examination, P.W.3 admitted to havenot given the exact time of death. He further testified that nosamples of nails were collected in order to examine whetherany material was there in the nails of the deceased. Headmitted that in case of abrasion to any other person bydeceased, the tissues are expected to be there in the nails.He went on to admit that the nails were to be sent for chemicalexamination to ascertain the person who committed throttling.According to him, there were 5 types of asphyxia, one of whichwas violent sexual asphyxia. The same can be accidental.According to him, the same was irrelevant in the present case.18.P.W.3 Dr. Mohan being an independent witness,had no reason to be in favour of either prosecution or the Cri.Appeal No.183/2020with 186/2020:: 13 ::appellants. His evidence undoubtedly indicates Jayshree diedof throttling.19.P.W.4 Dr. Kishor was a Medical Officer working atNewasa. It is in his evidence that, by 5.00 a.m. on 26/8/2017,Jayshree was brought to the hospital by her husband andrelations. She was brought dead. He, therefore, directed herto refer to Civil Hospital, Ahmednagar. He gave information toNewasa Police Station.20.It is further in his evidence that, on the same dayhe had examined appellant Kishor by 4.30 p.m. and foundfollowing injuries on his person :(1)Scratch mark on right side of the neck around 3 cm.above mid-line of the clavicle bone. It was 0.2 x 0.1 cm. Ageof injury was around 48 hours. It was simple injury andprobably caused by nails.(2)Scratch mark over right side of chest on mid-auxiliary linearound 6-7 rib area. Size 0.3 x 0.2 cm. Age of injury wasaround 48 hours. It was simple injury. Probably caused bynails.He issued injury certificate (Exh.45).21.P.W.10 Rajkumar is a witness to inquestpanchanama (Exh.64). While P.W.1 Maroti Sadavarte is a Cri.Appeal No.183/2020with 186/2020:: 14 ::witness to the crime scene panchanama (Exh.31). The crimescene is one of the rooms of the house of the appellants.Broken bangle pieces were seized from the bed in the room.22.P.W.6 Govardhan was neighbour of the appellants.It is in his evidence that, by little past 1.30 midnight, hereceived a phone call of appellant Kishor, informing that hiswife Jayshree was not keeping well. He, therefore, rushed tohis residence. Kishor and his parents (appellants) and hisgrandmother were also there. He thought Jayshree to havesuffered heart attack. He did some pumping, but in vain. He,therefore, brought a bullock cart of tyre-wheels. It was toed totractor and Jayshree was brought to the hospital therein. 23.In the cross-examination, this witness testified that,appellant Kishor was residing away from his parents.24.P.W.1 Maroti was a witness to variouspanchanamas. First of such panchanama is Exh.28. It relatesto seizure of clothes of the deceased. Then is thepanchanama (Exh.28) relating to seizure of clothes of theappellant at the time of his arrest. This witness in hisexamination-in-chief itself testified that there were abrasions Cri.Appeal No.183/2020with 186/2020:: 15 ::on the person of appellant Kishor. There were some injuriesas well on his neck and ribs. The arrest panchanama ofappellant Kishor is at Exh.30. The crime scene panchanamadrawn in his presence finds place at Exh.31. 25.P.W.9 Maruti Pawar was driver of the Policevehicle. P.W.10 Rajkumar, Police Officer conducted theinquest while P.W.11 Abdul Kalim was Assistant Sub-Inspectorof Police, who did the investigation of the crime. Theinvestigating officer P.W.11 Abdul Kalim admitted that therewere injuries on the person of appellant Kishor. He realisedthat, a scuffle took place between appellant Kishor and his wifeand both of them pressed neck of each other. According tohim, he initially did not invoke Section 302 of the Indian PenalCode. He, however, denied that the incident took place at thespur of moment.26.The arrest panchanama of appellant Kishor(Exh.30) indicates that there were injuries on his neck, chestand ribs. At the time of arrest itself, he informed the policeofficer that he suffered those injuries in a quarrel with his wife(deceased Jayshree). The injuries were caused by her (This is Cri.Appeal No.183/2020with 186/2020:: 16 ::admissible in his favour). In his examination under Section313 of the Cr.P.C., he placed on record his say, wherein hestated that, on the fateful night, he asked his wife for sexualfavour. She refused. She abused him (that he was not aman). He got annoyed thereby. He attempted to have sexwith her against her wish. She, therefore, caught hold of hisneck with a tight grip. She was physically well built than him.He, therefore, made attempts to get rescued from her clutches.He started feeling that his breath was going low. His neckcame into her hand and got pressed. He made desperateattempts to get rescued from her clutches. In the process, herneck got pressed. She fell unconscious. He, therefore, calledhis neighbour and rushed his wife to Rural Hospital at Newasa.27.The appreciation of the evidence indicates that, theincident took place in a room wherein the appellant Kishor andhis wife were the only persons. A quarrel ensued between thetwo. The deceased Jayshree caused injuries on the person ofthe appellant. Dr.Kishorkumar (P.W.4) who examined himissued certificate in that regard (Exh.45). His arrestpanchanama also indicates that there were injuries on his neckand ribs. From day one of his arrest, it was a case of the Cri.Appeal No.183/2020with 186/2020:: 17 ::appellant that it was his wife who quarreled with him andcaused him injuries. He placed on record his say in responseto his examination under Section 313 of the Cr.P.C. The samehas been referred to hereinabove. The investigating officer tootestified that the incident occurred out of a quarrel between thetwo i.e. appellant and his wife.28.In view of the aforesaid evidence, the case wouldfall under Exception 4 of Section 300 of the Indian Penal Code.Although learned Advocate for the appellants relied on thejudgment of the Apex Court in case of Anbazhagan Vs. StateRepresented by the Inspector of Police (2023 SCC OnLineSC 857), the facts thereof were altogether different. Here theappellant killed his wife by throttling. He could have used othermeans to control her. Killing a wife with throttling indicates hisintention was to kill her. The same, however, occurred withoutpremeditation in a sudden fight in the heat of passion upon asudden quarrel and without the appellant having taken undueadvantage or acted in a cruel or unusual manner. In view of thesame, the Trial Court ought not to have convicted the appellantfor the offence of murder. Interference with the impugned
Decision
Cri.Appeal No.183/2020with 186/2020:: 18 ::order of conviction and consequential sentence is, therefore,warranted.29.In the result, both the appeals stand disposed of interms of the following order : O R D E R(i)The Criminal Appeals are partly allowed. (ii) Conviction of the appellant Kishor s/o Murlidhar Bachkarin Criminal Appeal No.183/2020 and the appellants Murlidhars/o Sabaji Bachkar and Tanhabai w/o Murlidhar Bachkar inCriminal Appeal No.186/2020 and consequential sentencerecorded by learned Additional Sessions Judge, Newasa,District Ahmednagar on 13/2/2020 in Session CaseNo.14/2018 for the offence punishable under Section 498-A ofthe Indian Penal Code is hereby set aside. All the appellantsare acquitted thereof. Fine amount, if paid on that count, berefunded to them. Bail bonds of appellants Murlidhar andTanhabai in Criminal Appeal No.186/2020 are cancelled.(iii)Conviction of the appellant Kishor s/o MurlidharBachkarin Criminal Appeal No.183/2020 for the offencepunishable under Section 302 of the Indian Penal Code ishereby set aside. The appellant is acquitted thereof. Instead,the appellant Kishor s/o Murlidhar Bachkar is convicted for theoffence punishable under Section 304 Part I of the Indian Cri.Appeal No.183/2020with 186/2020:: 19 ::Penal Code and sentenced to suffer rigorous imprisonment fornine years and to pay fine of Rs.3000/- (Rupees threethousand), in default to suffer R.I. for two months. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-