High Court
Facts
Cri Appeal No.361 of 2018 and 1066 of 2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.361 OF 2018Balasaheb @ Bala Laxman Vaidya,Age : 40 years [at present 44], Occ. Labour, r/o. Navgan Rajuri,Tq. and Dist. Beed..AppellantVs.The State of Maharashtra,Through Police Station, Beed (Rural)Tq. and Dist. Beed..RespondentAND CRIMINAL APPEAL NO.1066 OF 2019Ashabai wd/o. Tukaram Panchal,Age : 40 years, Occ. Household,r/o. Belura, Tq. and Dist. Beed,At present in Yerwada Womens Central JailPune..AppellantVs.The State of Maharashtra,Through Police Inspector,Police Station Beed (Rural),Tq. and Dist. Beed..Respondent----Mr.B.B.More and Mr.M.B.Ubale, Advocates for appellant in CriminalAppeal No.361 of 2018Mr.Saeed S. Shaikh, Advocate for appellant in Criminal Appeal No.1066of 2019Mrs.S.N.Deshmukh, APP for respondent-State in both appeals---- 2Cri Appeal No.361 of 2018 and 1066 of 2019 CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. RESERVED ON: FEBRUARY 12, 2025 PRONOUNCED ON:MARCH 11, 2025JUDGMENT [Per R.G.Avachat, J.] :- Both these appeals are decided by this commonjudgment, since the appellants therein take exception to thejudgment of their conviction and consequential order of sentencedated 25.04.2018, passed by learned Addl. Sessions Judge, Beed(Trial Court), in Sessions Case No.135 of 2014. Vide the impugnedjudgment and order, the appellants have been convicted andconsequently sentenced as under :-Sr.No.Section Punishment1302 r/w.34 of I.P.C.Imprisonment for life and pay fine ofRs.2,000/-, in default, R.I. for threemonths2120-B of I.P.C.Imprisonment for life and pay fine ofRs.2,000/-, in default, R.I. for threemonths3Section 201 r/w.120-Bof I.P.C.R.I. for three years and pay fine ofRs.2,000/-, in default, R.I. for threemonthsAll the sentences were directed to run concurrently. 3Cri Appeal No.361 of 2018 and 1066 of 20192.The facts, in brief, giving rise to the present appeals areas follows:-The appellant in Criminal Appeal No.1066 of 2019 –Ashabai (original accused no.2) had extra-marital relationship withthe appellant in Criminal Appeal No.361 of 2018 – Balasaheb @ Bala(original accused no.1). Both would meet each other frequently andeven go out of village. They had been to Shirdi twice and stayedthere overnight in a lodge. The appellant – Ashabai has threechildren. In the month of May, 2014, her both sons had been to theirmaternal grand-parents. As such, the appellant Ashabai was aloneat her residence along with her husband – Tukaram (deceased). Onthe intervening night of 22nd and 23rd May, 2014, Tukaram wasstrangulated to death. He was taken to a private clinic under thepretext of he to have suffered heart-attack. She even informed thevillage Police-Patil accordingly. The cousin of deceased (PW1 -Yuvraj) was informed. He rushed to the village of the deceased. Hefound the dead body of Tukaram at his house. He noticed ligaturemark around his neck. In the meanwhile, the police were informed.Mortal remains of deceased Tukaram were subjected to autopsy. TheMedical Officer opined it to be a case of death due to “asphyxia dueto hanging”. PW1 – Yuvraj, therefore, lodged the First InformationReport (FIR – Exh.38) against both the appellants. 4Cri Appeal No.361 of 2018 and 1066 of 20193.A crime, vide C.R. No.67 of 2014, was registered withBeed Rural Police Station. Both the appellants were arrested. It wasrevealed during investigation that appellant – Balasaheb brought`Restyl-0.5 mg.’ pills. The pills were administered to the deceasedand during his sleep, he was strangled. The statements of thepersons acquainted with the facts and circumstances of the casewere recorded. Upon completion of the investigation, the chargesheet was filed against both the appellants.4.The trial Court framed charge(Exh.14). The appellantspleaded not guilty. Their defence was of false implication.5.The prosecution, to bring home the Charge, examinedtwenty-three witnesses and adduced in evidence certain documents.On appreciation of the evidence in the case, the order impugnedherein was passed.6.Heard learned counsel for the parties. Learned counselfor the appellants would submit that the case was based oncircumstantial evidence. There is no evidence to indicate that theappellant – Balasaheb was at the house of the appellant – Ashabai on
Legal Reasoning
14Cri Appeal No.361 of 2018 and 1066 of 2019Dr. Muley and then brought back. During cross-examination, hetestified that the relationship between the appellant Ashabai and herhusband were cordial. The dead body was lying on the otla of thehouse. He further testified that anybody can go in front of the houseof deceased Tukaram.20.PW6 – Dr. Vijaykumar would run a clinic at village Rajure.He testified that in the wee hours (4 a.m.), the appellant Balasahebalong with one lady and one person had come with one patient. Theappellant Balasaheb told him that there was chest pain to thepatient. He (Doctor) found ligature mark around the neck of the saidperson. He also identified appellant – Ashabai.21.Then, there is evidence in the nature of the C.D.R. andthe tower location of the cellphones of both the appellants. Samehas been duly admitted in evidence in view of the testimony ofPW22- Sachin, Nodal Officer of Idea Cellular Company. The C.D.R.indicates that both the appellants were in contact with each other forlong and on the given night as well. In our view, the same suggeststhat they were not together; but away from each other and hence,required to contact on cellphone. 15Cri Appeal No.361 of 2018 and 1066 of 201922.Appreciation of the aforesaid evidence, undoubtedly,lead us to infer that there was illicit relationship between both theappellants. The deceased met with homicidal death at his residence.On the fateful night, appellant Ashabai and deceased were the onlypersons at their residence. Their son – Samadhan (PW2) and anotherson had been to their maternal grandparents for summer vacation.The appellant Ashabai falsely informed the Doctor and the Police-Patil, that Tukaram suffered chest pain. She wanted to make out acase of heart-attack. The Medical Officer has, however, specificallyopined it to be a case of homicide. When both the appellants hadbeen to the Doctor (PW6) to have the deceased Tukaram examined,a third person was with them. Same, therefore, do not lead us toinfer that both the appellants were together on the given night andhomicidal death was caused by both of them in pursuance of eithercommon intention (Section 34 of IPC) or conspiracy (Section 120-B ofIPC). Since appellant Ashabai told that her husband suffered chestpain, appellant Balasaheb may be presumed to have so told to theMedical Officer (PW6-Dr. Vijaykumar). The trial Court, relying on thejudgment of the Apex Court in the case of Trimukh Maroti KirkanVs. State of Maharashtra (2006)10 SCC 681 has rightlyconvicted the appellant Ashabai.
Arguments
5Cri Appeal No.361 of 2018 and 1066 of 2019the fateful night. They would further submit that the evidence in thenature of the entries in the check-in registers of the lodge do notbear photograph of the appellant – Balasaheb. The name recordedtherein was Balaji and not Balasaheb. Even if the evidence of someof the witnesses is accepted that both the appellants wereemotionally involved with each other, there is nothing to indicatethat they had conspired to eliminate the deceased. The Police-Patil(PW21 - Tukaram Dhawale) testified that the dead body of deceasedTukaram was seen on Otla (outside) of his residence. Theprosecution did not examine any witness to prove that appellant –Ashabai and deceased Tukaram were together on the fateful night.It also failed to prove that no third person was with them during thatnight. No sooner she realised her husband to have been critical, sherushed him to a local clinic. The same rules out her involvement inthe crime. Both learned counsel, therefore, urged for allowing theappeals.7.Learned APP would, on the other hand, took us throughthe entire evidence on record. She would submit that the son (PW2-Samadhan) of the appellant – Ashabai has no reason to speakagainst her. She would submit that there is voluminous evidence tosuggest extra-marital relationship inter se the appellants. The 6Cri Appeal No.361 of 2018 and 1066 of 2019appellant – Ashabai was reasoned with. She, however, continuedwith her relationship. There used to be frequent quarrels betweenher and deceased over the said issue. As such, the deceased was anobstacle in her relationship with appellant – Balasaheb. On thefateful night, appellant Ashabai and her husband Tukaram only werepresent at her residence. Tukaram died of strangulation. It wouldnot be an act of single person, that too, of a lady. The appellant –Balasaheb must have been a privy to the crime along with her.There is evidence to indicate that in the early morning, both theappellants took the deceased to the clinic of Dr. Vijaykumar Muley(PW6). Same suggests this appellant too was with the otherappellant by the time the deceased met with homicidal death. TheCall Details Record (CDR) of the cellphones of both the appellantswould indicate that on the fateful day and night and even for longthere-before, both of them were in contact with each other. Both ofthem used to visit Shirdi. They would stay in lodge overnight. Thereused to be frequent quarrels between the deceased and his wife(appellant-Ashabai). As such, the deceased was an obstacle for theappellant – Ashabai. No other inference than both the appellantsconspired to eliminate the deceased and executed their intentioninto action by strangling him, can be drawn. Learned APP would,therefore, urge for dismissal of the appeals. 7Cri Appeal No.361 of 2018 and 1066 of 20198.Considered the submissions advanced. Perused thejudgment impugned herein. 9.The case is based on circumstantial evidence. Beforeadverting to the evidence on record, let us refer to the judgment ofthe Apex Court in the case of Sharad Birdhichand Sarda Vs.State of Maharashtra, (1984) 4 SCC 116 as under :-“153. A close analysis of this decision would showthat the following conditions must be fulfilled beforea case against an accused can be said to be fullyestablished: (1) The circumstances from which the conclusionof guilt is to be drawn should be fully established.(2) The facts so established should be consistentonly with the hypothesis of the guilt of the accused,that is to say, they should not be explainable on anyother hypothesis except that the accused is guilty,(3) The circumstances should be of a conclusivenature and tendency,(4) They should exclude every possible hypothesisexcept the one to be proved, and(5) There must be a chain of evidence so completeas not to leave any reasonable ground for theconclusion consistent with the innocence of theaccused and must show that in all human probabilitythe act must have been done by the accused.” 8Cri Appeal No.361 of 2018 and 1066 of 201910.The following circumstances are relied on to bring homethe charge:-(i)Homicidal death;(ii)Motive;(iii)False Explanation;(iv)Both the appellants to be together in the early morning of the fateful day.Homicidal Death:-11.PW11 – Dr. Hanumant was Medical Officer attached tothe Civil Hospital, Beed. On 23.05.2014, he was on post mortemduty. He testified that Dr. Swati Pawar (PW12) was on duty on thesame day. The police referred the dead body of Tukaram for postmortem. Dr.Swati Pawar conducted autopsy. He (PW11 –Dr.Hanumant) assisted her in the said exercise. PW12 – Dr.Swatireferred to the post mortem report under her signature (Exh.63). Inher opinion, the cause of death of Tukaram was “asphyxia due tohanging”. She had preserved blood and heart of the deceased forC.A. analysis and histopathology. The C.A. reports thereof finds placeat Exh.66 and 67. In her opinion, it was a case of homicidal death.The deceased was done to death 6-8 hours prior to the post mortem.Her remark at column no.17 of post mortem report reads thus :- 9Cri Appeal No.361 of 2018 and 1066 of 2019“- Oblique ligature mark present over neck 2.3 cm. below mandible of size 35 x 3 cm.-Knot mark absent-Ecchymosis present in subcutaneous place corresponding to ligature mark-Hyoid bone fractured.”12.The histopathology report rules out the deceased to havebeen administered with sleeping/sedative pills. We, therefore, do notpropose to refer to the evidence of the three witnesses (PW5-Dr.Ajaykumar, PW7 - Bharat and PW 9 - Raju) examined relation tothe appellant - Balasaheb to have obtained prescription from Doctorand purchased `Restyl-0.5 mg.’ pills. The fact, however, remainsthe deceased met with homicidal death.13.Now, the question is, whether the appellants are theauthors of the crime. PW1 – Yuvraj was cousin of Tukaram (sister’sson). He testified that all was not well between Tukaram and his wife(appellant Ashabai) since one and half years prior to the incident. Hecame to know about the illicit relationship between the appellants.There, therefore, used to be quarrels between deceased Tukaramand appellant Ashabai. He along with his father and other elderlypersons had been to the house of Tukaram. Appellant Ashabai wasreasoned with. She was advised to disassociate from appellant –Balasaheb. He further testified that she, however, did not listen; the 10Cri Appeal No.361 of 2018 and 1066 of 2019relationship continued. He further testified that on 23.05.2014, inthe early morning, he was informed of death of Tukaram. He alongwith his father, therefore, rushed to village Belura in a privatevehicle. He went to the house of the appellant – Ashabai. Henoticed the dead body laid in a tin-sheet shed. He noticed ligaturemark on the throat of the deceased. There was bleeding from boththe ears. He suspected something amiss. He, therefore, lodged theFIR (Exh.38). True, the evidence of PW1 – Yuvraj indicates that helodged the FIR based on suspicion. He testified that both the grownup sons of the deceased had come to his place for summer vacation.As such, the appellant Ashabai and deceased Tukaram were the onlypersons at their residence. 14.PW2 – Samadhan is none other than the elder son of theappellant Ashabai. He testified that there used to be quarrelbetween his parents on account of appellant Balasaheb visiting theirresidence in the absence of his father. He further testified that onone or two occasions, when he came home, he saw appellantBalasaheb coming out of his residence; that time, his father was notat their residence. He further testified that his mother would ask himand his younger brother to go out of the house whenever theappellant Balasaheb would visit her. He further testified that about 11Cri Appeal No.361 of 2018 and 1066 of 2019one and half months prior to the incident, quarrel had ensuedbetween his parents. His maternal uncle, grand-father and some ofthe villagers had worked out settlement. His mother was reasonedwith to disassociate herself from appellant Balasaheb. She, however,did not pay heed.15.During the cross-examination of PW2 - Samadhan, anomission that, when on two-three occasions, he visited theresidence, he saw appellant Balasaheb coming out of his house, wasbrought on record. Although the same may sound material omission,we find no reason to discard the evidence of PW2- Samadhan, son ofappellant Ashabai. He has no reason to have axe-to-grind againsthis own mother. On the relationship between the appellants, wehave evidence of PW3 – Kisan Gawte, resident of the very village. Hetestified to have seen both the appellants moving together onmotorbike. He, however, could not state the day, date and timethereof.16.PW4 – Sanjay was Manager of Hotel Sai VishwakarmaPalace, Shirdi. He testified that about three years before, Balasaheband one lady had checked in the hotel. They stayed in room no.301overnight. He placed on record an office copy of the bill and entry in 12Cri Appeal No.361 of 2018 and 1066 of 2019the check-in register, wherein the name of appellant is appearing as`Balaji’ and not `Balasaheb’. The lady stayed with him was stated tobe one Ashabai. She represented herself to be the wife of appellantBalasaheb. 17.PW8 – Kisan Bhawar was another villager. He testifiedthat after visiting Paithan for Shasthi Yatra, he along with his relativeNandabai went to Shirdi. He met both the appellants. At theinstance of appellant Balasaheb, they stayed in a hotel. Since he didnot have money to pay the hotel charges, it was the appellantBalasaheb, who had paid the same. The entries in the check-inregister of the hotel have been placed on record. Same indicateboth the appellant Balasaheb and this witness, along with one ladyeach, stayed in two separate rooms in the hotel. This witness wascategorical to state that appellant Ashabai was with appellantBalasaheb. 18.PW10 – Mohammad Rafiq was the owner of the mobileshop. He testified to have issued a sim-card to the appellantAshabai. He gave the number as 8308595937. PW13 - Narayan ispanch witness to the crime scene panchnama (Exh.70). The crimescene is the house of appellant Ashabai. PW14 – Shaikh Sadeq is 13Cri Appeal No.361 of 2018 and 1066 of 2019panch witness to the seizure of Odhani/Dupatta. He did not stand bythe prosecution. PW15 – Pandurang Aahir is another witness to thepanchnama relating to obtaining specimen handwriting of theappellant Balasaheb. PW16- Pandurang Gavate is panch to theseizure of cellphone of appellant Balasaheb. PW17 – Vasant isManager of hotel Sai-Kishor Lodge. He testified that on 26.05.2014,the police had visited his hotel and seized the check-in register. It isat Exh.100. Room Nos.104 and 105 were given to the appellantBalasaheb and Kisan (PW8) to stay along with one lady each. PW18– Bhausaheb is the witness relating to collection of C.C.T.V. footage ofthe hotel. PW19 – Rangnath is the police official, who conductedinquest under panchnama (Exh.71). He carried out investigation ofthe crime two days thereafter. PW20 - Jyotsna is the police officialwho recorded the case of unnatural death on the basis of the reportlodged by the Police Patil of the village (PW21). 19.PW21 – Tukaram Dhawale was the Police-Patil of thevillage. He testified that on hearing hue and cry, he visited thehouse of the appellant Ashabai by 6.00 in the morning. He sawTukaram’s dead body. He inquired with Ashabai. She told him thatTukaram suffered chest pain. She further informed that she hadcalled a villager – Shivaji Hole and took her husband to the clinic of
Decision
16Cri Appeal No.361 of 2018 and 1066 of 2019Based on the said evidence, the trial court ought not tohave convicted the appellant Balasaheb. In our view, there is noclinching and convincing evidence to establish the charge againstappellant Balasaheb. He, therefore, deserves acquittal. 23.In the result, the appeals are disposed of in terms of thefollowing order:-(i)Criminal Appeal No.361 of 2018 preferred by appellant -Balasaheb @ Bala Laxman Vaidya is allowed. The impugnedjudgment and order dated 25.04.2018, passed by learned Addl.Sessions Judge, Beed (Trial Court), in Sessions Case No.135 of 2014,convicting and sentencing the appellant - Balasaheb @ Bala LaxmanVaidya for the offences punishable under Sections 302 r/w. 34, 120-Band Section 201 r/w. 120-B of Indian Penal Code is set aside. He isacquitted of the said offences.(ii)Vide order dated 12.02.2025 passed by this Court,appellant - Balasaheb has been released on bail bonds. His bailbonds stands cancelled. Fine amount paid by the appellant-Balasaheb, if any, be refunded to him. 17Cri Appeal No.361 of 2018 and 1066 of 2019(iii)Criminal Appeal No.1066 of 2019 preferred by appellant -Ashabai wd/o. Tukaram Panchal is partly allowed. The convictionrecorded against her vide the impugned order dated 25.04.2018, forthe offences punishable under Sections 302 and 201 of Indian PenalCode, is maintained. The substantive sentences imposed against herfor these offences too, stand maintained. Both the sentences shallrun concurrently. She is, however, sentenced to pay fine ofRs.1,000/- and Rs.500/-, respectively, for the said offences, and indefault thereof, to undergo R.I. for ten days, each.(iv)The conviction and sentence recorded against appellant –Ashabai for the offences punishable under Section 120-B of IndianPenal Code is set aside. She is acquitted thereof. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP