High Court
Legal Reasoning
Cri.Appeal No.669/2024:: 1 ::GIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.669 OF 2024Ganesh Kisan Pare,Age 33 years, Occu. Nil,R/o Barwar Galli, Old Jalna,At present Mammadevi Nagar,Near Tulja Bhavani Mandir,Nutan Vasahat, Old Jalna,Tq. & Dist. Jalna…APPELLANTVERSUSThe State of Maharashtra,(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad) …RESPONDENT…..Mr. Rajesh Mewara, Advocates for appellant (appointed through Legal Aid)Mrs. Uma S. Bhosle, A.P.P. for respondent – State ….. CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.DATE : 14th November, 2024JUDGMENT (PER : R.G. AVACHAT, J.) : The challenge in this appeal is to a judgment andorder of conviction and consequential sentence, dated29/9/2018, for offence punishable under Section 302 of the Cri.Appeal No.669/2024:: 2 ::Indian Penal Code, passed by the Court of Additional SessionsJudge-3, Jalna in Sessions Case, No.214/2016. The appellantthus came to be convicted for committing murder of his motherand therefore, sentenced to suffer imprisonment for life and topay a fine of Rs.10,000/-, with default stipulation.2.The case is based on circumstantial evidence. Thefacts of the prosecution case, in brief, are as follows :- There was somewhat dilapidated Wada/ premisesbelonging to the father of the appellant. The appellant alongwith his wife and parents would reside therein. Thereafter hestarted residing along with his wife at Nutan Vasahat, Jalna.His parents continued to reside in the Old Wada. Theappellant’s father passed away 2-3 months before the incident.He along with his wife, therefore, shifted to his old house totake care of his mother. The appellant allegedly suspectedcharacter of his wife. Therefore, there used to be frequentquarrels between them. The mother (deceased) would reasonwith him. The mother would take side of her daughter-in-law. Cri.Appeal No.669/2024:: 3 ::3.It was early morning of 23/9/2016. P.W.2 Malanbai,wife of uncle of appellant, residing in the neighbourhood, wassweeping in the courtyard. She had an occasion to look intothe house of the appellant. To her surprise, she found her co-sister lying in a pool of blood. She raised an alarm. Someneighbours gathered. The appellant too was in the house. Hecame out. He made extra-judicial confession to P.W.2Malanbai about having killed his mother. She, therefore,shared the incident with her relatives and neighbours. Thematernal uncle of the appellant P.W.5 Prabhulal lodged theFirst Information Report (F.I.R. - Exh.27), alleging the appellantto have killed his sister (mother of the appellant). A crime videC.R. No.297/2016 was registered at Kadim Jalna PoliceStation for offences punishable under Sections 302, 504, 506of the Indian Penal Code. Crime scene panchanama (Exh.34)was drawn. A stone stained with blood was seized from thecrime scene. Statements of persons acquainted with the factsand circumstances of the case were recorded. Inquestpanchanama (Exh.11) and autopsy (Exh.45) on the mortalremains of deceased Tarabai were conducted. The appellantwas arrested. All the seized articles were submitted to Cri.Appeal No.669/2024:: 4 ::Forensic Science Laboratory for analysis and report. Oncompletion of the investigation, charge sheet was filed againstthe appellant. The Trial Court framed the Charge (Exh.6). Theappellant pleaded not guilty. He put on record his side of thestory. According to him, he would daily go for a morning walk.On the given day, he had gone for morning walk as usual. Hisyounger sister and mother were home. He had asked them tobolt the door from inside. The sister went to fetch water from apublic water tap. Somebody entered the house and committedmurder of his mother. Gold ornaments on the person of hismother were missing, besides 1 tin box containing goldornaments, preserved for the marriage of his younger sister,was found missing. When he returned from the morning walk,he saw the door of the house open and his mother lying in apool of blood. According to him, his wife was from hisrelations. She did not want to stay in a joint family i.e. alongwith his parents-in-law. She insisted him to stay away. Aquarrel, therefore, started ensuing between him and his wife.He has three kids. At the instance of his wife, he startedresiding separately from his parents. But on the demise of hisfather, he started residing with his mother. The mother was not Cri.Appeal No.669/2024:: 5 ::keeping well. She was confined to bed. It was he who wouldprovide for her maintenance etc.4.The prosecution, in order to bring home the charge,examined 16 witnesses and produced in evidence certaindocuments. The Trial Court, on appreciation of the evidence inthe case, convicted the appellant and consequently sentencedas stated above.5.Learned Advocate appointed to represent theappellant would submit that, the case was based oncircumstantial evidence. The witnesses who have deposedagainst the appellant were relations of the deceased. Theyhave an interest in the property i.e. the Old Wada. The learnedAdvocate has placed on record written notes/ points ofarguments. According to him, the evidence of P.W.2 Malanbaiis contradictory. She was the relative of the deceased. Thenhe would submit that, the evidence of P.W.2 Malanbai washear-say. There was no evidence to indicate that any criminalcase was filed by the wife of the appellant Asha (P.W.4)against the appellant. Cri.Appeal No.669/2024:: 6 ::P.W.4 Aasha turned hostile.6.The evidence of P.W.5 Prabhulal is based on hear-say. His evidence is full with contradictions and omissions.The evidence of other witnesses, namely P.W.8 Ganesh andP.W.9 Ram is also inadmissible being hear-say. P.W.10Dadarao and P.W.11 Dipak did not stand by the prosecution.According to him, the investigating officer made no efforts tomake investigation on the lines on what was stated by theappellant to him i.e. the robbery with murder took place at thehouse. According to him, the defence of the appellant wasmore probable. The charge framed against the appellant wasnot properly worded. The incriminating circumstances/evidence have not been put to the appellant in his examinationunder Section 313 of the Cr.P.C. The same caused prejudiceto the appellant. He would further submit that, since the caseis based on circumstantial evidence, circumstances relied ondid not clinchingly and unerringly show the accused beingauthor of the crime. The motive behind the crime has not beenproved. The learned Advocate has relied on the judgment of Cri.Appeal No.669/2024:: 7 ::the Apex Court in case of Pritinder Singh Alias Lovely Vs.State of Punjab (2023) 7 SCC 727.7.The learned A.P.P. would, on the other hand,submit that the appellant and the deceased were the onlypersons residing in the house. Whatever statement has beenput on record by the appellant in his examination underSection 313 of the Cr.P.C. cannot partake character as anevidence since the prosecution did not have an opportunity tocross-examine him. It was, therefore, for him to make out thecase of his alibi. When the offence took place in a premiseswherein the appellant and his mother were the only personsresiding together, it is for the appellant to explain thecircumstances in which his mother met with homicidal death.He did not offer plausible or reasonable explanation. Thecontention of the appellant that the witnesses are relativescannot be accepted because those are also the relatives of theappellant as well. According to her, the Trial Court has rightlyconvicted the appellant. She ultimately urged for dismissal ofthe appeal. Cri.Appeal No.669/2024:: 8 ::8.Considered the submissions advanced. Perusedthe evidence on record. Also perused the judgment impugnedherein and the authorities cited by the learned Advocate for theappellant. It needs no mention that criminal case has to bedecided on the facts and circumstances appearing therein. Avariance of a fact here and there makes all the difference.9.Let us advert to the evidence on record andappreciate the same. P.W.13 Dr. Surjit conducted autopsy onthe mortal remains of Tarabai. He noticed following externalinjuries on her person with corresponding internal injuries :-(i)Crush injury to right side of head, involving right frontal,right temporal and right parietal region of head withmultiple fracture of right frontal, right temporal and rightparietal bone of head, evidence of blood clot wasnoticed.(ii)Contusion over right occipital region of head, fracture toright occipital bone of head 3 x 3 cm.In his view, both the injuries were ante mortem and Cri.Appeal No.669/2024:: 9 ::grievous in nature. According to him, those were causedwithin 24 hours next before the post mortem examination. Thepost mortem report finds place at Exh.45. The cause of deathis stated to be head injury with intracerebral bleeding. In viewof the deceased to have admittedly died with homicidal death,we do not propose to refer to the evidence of P.W.1 Sk. Khalid,a witness to the inquest panchanama.10.The appellant did not dispute his mother to havemet with homicidal death. The question is, whether theappellant is the author of the crime in question. Since the caseis being based on circumstantial evidence, we propose to referto the judgment of the Apex Court in case of SharadBirdichand Sarda Vs. State of Maharashtra (1984 CJ (SC)262), in which the Apex Court has observed thus :-“153.A close analysis of this decision would showthat the following conditions must be fulfilled beforea case against the 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, Cri.Appeal No.669/2024:: 10 ::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 possiblehypothesis except the one to be proved, and(5)There must be a chain of evidence socomplete as not to leave any reasonable ground forthe conclusion consistent with the innocence of theaccused and must show that in all human probabilitythe act must have been done by the accused.”11.In the case in hand, the prosecution proposes tobring home the charge on the following circumstances :(1)Homicidal death – admitted/ proved by evidence ofP.W.13 Dr. Surjit.(2)Motive i.e. quarrel between the appellant and his wife.(3)The appellant and the deceased were the only personsresiding in the house.(4)The appellant was seen in the house at the material time.(5)Extra-judicial confession.MOTIVE :-12.The appellant married P.W.4 Aasha. The couple Cri.Appeal No.669/2024:: 11 ::was blessed with three children. Her evidence discloses thaton marriage, she along with her husband started residing atthe house of her parents. Her parents-in-law would reside intheir old house at Barwar Galli, Jalna. Due to demise of herfather-in-law, the appellant had been to his own house i.e. OldWada to take care of his mother (deceased). She too joinedhim. The appellant started suspecting her character. She,therefore, left her matrimonial house and started residing at thehouse of her father. About 4 days before passing of her father,the appellant had quarreled with her. It was her mother-in-law(deceased) who had intervened and separated the same. Shefurther testified that, her mother-in-law (deceased) hadaccompanied her to Kadim Jalna Police Station to lodge thereport against the appellant. 13.It is true that the report lodged by P.W.4 Aashaagainst her husband (appellant) is not on record. There is,however, no reason to disbelieve her evidence. No wife wouldlike to give evidence against her own husband unless there isa reason or falsity is made out by the defence. Her evidencefurther disclose that, while the incident took place, she was Cri.Appeal No.669/2024:: 12 ::staying at her parental house. She received the phone callabout her mother-in-law to have been killed by the appellant.She, therefore, rushed to the house. According to her, theappellant committed murder of his mother since she (mother)would take the side of her daughter-in-law (P.W.4 Aasha).14.True, during her cross-examination P.W.4 Aashaadmitted that her husband was having good character. Theappellant’s ancestral house was 50 to 60 years old. She,however, denied that it was not fit for residence. She denied tohave cordial relations with the appellant, although she admittedthe appellant to have good relations with her parents.15.P.W.2 Malanbai is the wife of appellant’s real uncle.She deposed that, Tarabai (deceased) would reside along withher husband. The appellant would reside at Nutan Vasahat,Jalna. After death of his father, the appellant started residingwith his mother. Aashabai is the wife of appellant. She wasresiding at Nutan Vasahat, because of quarrel between thetwo. According to her, it was 7.00 a.m. of the fateful day, sheentered the Wada for sweeping/ brooming. She saw the Cri.Appeal No.669/2024:: 13 ::appellant went in the bathroom. She peeped in the appellant’shouse and noticed blood. She, therefore, shouted. She sawthe head of her co-sister to have been crushed. On hearingher shouts, Gopinath Chaudhari, Ganesh Chaudhari, ManojPare and Shyam Pare gathered. The appellant told them tohave killed his mother. He questioned them what they want todo.16.During her cross-examination, her relationship withthe appellant has been brought on record. The house whereinthe incident took place was ancestral one. It was 60 year oldpremises, built up in stone and clay. She claimed ignoranceabout the reasons behind the quarrel between the appellantand his wife. She claimed ignorance about the disputebetween appellant and his maternal uncle. The house beingold one, was in the dilapidated condition and the entirestructure was likely to come down any time. There was onlyone entrance to the Wada. The accused would do job duringday time. Her 164 statement has also been brought on recordthrough her examination-in-chief (Exh.23). Cri.Appeal No.669/2024:: 14 ::17.P.W.3 Manoj testified that, on hearing shouts of hismother, he came out of his house by 7.00 in the morning. Heentered the Wada of his grandfather. The appellant’s motherwas lying. He denied to have seen the appellant sitting by theside of his mother’s dead body. The evidence of this witnessappears to have favour the appellant.18.P.W.5 Prabhulal is the brother of deceased Tarabai.He testified that, he was residing in front of the house of thehouse of his sister Tarabai. The appellant would reside withher. There used to be quarrels between the appellant and hiswife. The appellant’s wife had, therefore, started residing atthe house of her parents. It was the appellant and his motherwho were the only persons residing in their house. On thefateful day, he had left the house with his auto. His soninformed him on phone. He, therefore, returned to the house.He claimed to have seen Tarabai was dead. A stone was lyingby her side. Malanbai (P.W.2) was present at the spot. Shenarrated her the incident. He, therefore, went to the PoliceStation and lodged the F.I.R. (Exh.27). Cri.Appeal No.669/2024:: 15 ::19.He was subjected to a searching cross-examination. He is the real brother of the deceased andmaternal uncle of the appellant. He is not an eye witness tothe incident. What quarrel appellant had with his maternaluncle Prabhulal (P.W.5) has not been brought on record.Although the F.I.R. (Exh.27) is based on hear-say, the lawcould be said to have been set in motion on the basis thereof.The evidence of P.W.5 Prabhulal indicates that it was theappellant alone who was residing along with his mother.20.P.W.6 Bhalchandra is the witness to thepanchanama (Exh.29) relating to the seizure of the clothes ofthe deceased. P.W.7 Ranba is the panch witness to the crimescene panchanama (Exh.34). His evidence disclose that theblood stained stone was seized from the crime scene.21.P.W.8 Ganesh is another brother of the deceased.According to him, his cousin sister Aashabai was given inmarriage to the appellant. She was residing at Nutan Vasahat.While Tarabai was residing in her own house at Barwar Galli.Relations between the appellant and his wife were not cordial. Cri.Appeal No.669/2024:: 16 ::According to him, the appellant would feel that his mother wasresponsible for quarrels between him and his wife. Hisevidence further disclosed that, on having learnt about theincident, he went to the crime scene. He noticed Tarabai deadand appellant was sitting by her side.22.P.W.9 Ram was nephew of Tarabai. His evidenceis consistent with the evidence of other witnesses in relation toquarrels between the appellant and his wife, and Tarabai(deceased) would convince the appellant. His evidence furtherdisclosed that, on the demise of the father of the appellant, theappellant along with his wife started residing with his mother.Due to quarrels between the couple, the appellant’s wife lefthim and started residing at the house of her parents. Onhaving learnt about the incident, he went to the Wada. He sawTarabai lying in a pool of blood. The appellant was sitting byhis side. He questioned him what he had done. Thereuponthe appellant said to him, “She was his mother and he hascommitted her murder.” He then telephoned to the PoliceStation. Cri.Appeal No.669/2024:: 17 :: During his cross-examination, it was brought onrecord that, appellant’s wife was his cousin. No sufficientaccommodation was available in the Wada for residing all thefour due to its dilapidated condition.23.P.W.10 Dadarao did not stand by the prosecution.24.P.W.11 Dipak is the brother-in-law (wife’s brother)of the appellant. His evidence is consistent with the evidenceof rest of the witnesses referred to hereinabove. During hiscross-examination, nothing fruitful could be elicited.25.P.W.12 Manik is a Police Officer who carried themuddemal articles to FSL, Aurangabad. P.W.14 Rajkumar is awitness to the seizure of the clothes of the appellant. He didnot support the prosecution. While P.W.15 Sukhdeo is thePolice Officer who recorded the F.I.R. (Exh.27). P.W.16Sayyed Sattar did the investigation of the crime. Hisexamination-in-chief details about drawing of crime scenepanchanama (Exh.34), seizure of blood stained stone,conducting autopsy. In short, his evidence indicates that, he Cri.Appeal No.669/2024:: 18 ::took all the steps which were expected to be taken duringinvestigation of such crime.26.In the cross-examination, he admitted that thestatements of the witnesses he had recorded were all therelatives of the deceased or his wife. According to him, noindependent witness came forward. In our view, the samewould not be fatal since all of them were also relatives of theappellant. It was only for the first time the appellant put hisside of the story in writing in his examination under Section313 of the Cr.P.C. He did not examine himself as a witness.The prosecution, therefore, lost its opportunity to cross-examine him. His case is that, he was away on morning walkand on return, found his mother to have been killed and onhaving seen the same, he became numb and even fainted,cannot partake the character of an evidence for want ofopportunity for subjecting him to the cross-examination.Merely putting his side of the story without making out thesame even on the basis of preponderance of probabilitiescould not be said the appellant to have made out his defence.When according to him his sister was residing with him, he did Cri.Appeal No.669/2024:: 19 ::not examine her. None of the prosecution witnesses wassuggested that his sister was also one of the person residingalong with the appellant and his mother. On the contrary, allthe material witnesses testified it was the appellant and hismother who were the only persons residing in the Old Wada.The incident took place by 7.00 in the morning or therebefore.It was a time by which the appellant was expected to be home.It is, therefore, for him to explain in what circumstances hismother met with homicidal death (Section 106 of the IndianPenal Code). On the contrary, he made extra-judicialconfession to P.W.2 Malanbai and P.W.9 Ram Chaudhary. Inthis view of the matter, we do not find the Trial Court to haveerred in convicting the appellant We are at one with thefindings recorded by the Trial Court. The learned Advocate forthe appellant did not bring to our notice that the appellant wasaway on morning walk was stated by him to the investigatingofficer on the day one. On the contrary, perusal of his bailapplication is silent to make a whisper thereof. As such, whathas been placed on record by the appellant is his side of thestory remained as it is. It is reiterated that, it cannot be takenas an evidence since he did not reiterate the same on oath and
Legal Reasoning
Cri.Appeal No.669/2024:: 20 ::allowed himself to be subjected to the cross-examination. 27.In the result, the appeal fails. It is dismissed. Feesof learned Advocate Mr. Mewara, appointed for the appellant,is quantified at Rs.10,000/- (Rupees ten thousand). (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-