High Court
Legal Reasoning
Cri Appeal No.804 of 2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.804 OF 2019ANDCRIMINAL APPLICATION NO.407 OF 2023Shankar s/o. Harishchandra Gaikwad,Age : 24 years, Occ. Labour,R.o. Lodga, Tq. Ausa, Dist. Latur..AppellantVs.The Stare of Maharashtra..Respondent----Mr.Sachin Panale, Advocate for appellantMrs.S.N.Deshmukh, APP for respondent---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. RESERVED ON : NOVEMBER 14, 2024 PRONOUNCED ON:NOVEMBER 19, 2024JUDGMENT (Per R.G.Avachat, J.) :-The appellant has been convicted for the offencespunishable under Sections 302 and 201 of Indian Penal Code andtherefore, sentenced to suffer imprisonment for life and R.I. for threeyears, respectively, with default stipulation, vide the judgment andorder dated 02.05.2019, passed by learned Addl. Sessions Judge, Latur,in Sessions case No.92 of 2016. The appellant is, therefore, in thisappeal before us. 2Cri Appeal No.804 of 20192.The facts, in brief, giving rise to the present appeal areas follows:-Appellant married Karishma (deceased) on 10.07.2016,at village Kavtha-Pati. The appellant started suspecting character ofhis wife (Karishma). He, therefore, assaulted on her cheek. On 2-3occasions, post marriage, Karishma had been to her parental house.She had related the same to her mother. It so happened that on25.08.2016, Karishma (deceased) was found dead at her matrimonialhome. It was said that saree was around her neck. Her brother-in-law Balaji informed Karishma’s father (PW 2 – Ram) that shecommitted suicide. PW 2 – Ram along with her wife and otherrelations, therefore, visited Karishma’s house. After funeral, theywent back to their village. On the other hand, the son of villagePolice Patil had informed in writing to the concerned police stationthat Karishma committed suicide by hanging. Based on the saidreport, a case of unnatural death (A.D.) was registered. An enquirytherein was made. Spot panchnama (Exh.42), inquest and autopsywere conducted during A.D. enqiry. Post mortem report indicates thethat the deceased died due to “cardio respiratory arrest due toasphyxia due to compression of neck structures due to strangulationi.e. throttling (manual strangulation)”. 3Cri Appeal No.804 of 20193.A Police Head Constable (Kishor Mangalgire), therefore,lodged the FIR (Exh.4). Based on the said FIR, a crime, being C.R.No.216 of 2016 was registered for the offences punishable underSections 302 and 201 of Indian Pena Code. Statements of thepersons acquainted with facts and circumstances of the case wererecorded. Seized articles were forwarded to the F.SL. for analysis andreport. The appellant was arrested. On completion of theinvestigation, charge sheet was filed against him. 4.The trial court framed Charge (Exh.23). The appellantpleaded not guilty. His defence was of false implication. Accordingto him, the deceased committed suicide. The neighbours and PW 10– Vijaykumar, son of village Police Patil had witnessed the same. Forno oblique motive, the deceased was removed from hanging stateand laid on the floor. It is his defence that the deceased was nothappy with him. Her marriage took place against her wish. 5.To bring home the charge, the prosecution examinedthirteen witnesses and produced in evidence certain documents. Onappreciation of the evidence in the case, the trial court convictedand consequently, sentenced the appellant, as stated above. 4Cri Appeal No.804 of 20196.Necessarily, the case is based on circumstantialevidence. Before adverting to the evidence on record, it would,therefore, be necessary to refer to the observations of the ApexCourt in the case of Sharad Birdhichand Sarda Vs. State ofMaharashtra, (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.”7.The prosecution to bring home the charge, relied on thefollowing circumstances:- 5Cri Appeal No.804 of 2019(i)Homicidal death;(ii)Motive, i.e. appellant was suspecting character of the deceased;(iii)Deceased died at her matrimonial home;(iv)The appellant failed to explain thecircumstances that resulted into death of hiswife. 8.Admittedly, the deceased died within 45 days of hermarriage. During this period, she had been to her parental home onthree occasions. On 25.08.2016, by 12.00 noon, she was found deadat her matrimonial home. Her brother-in-law Balaji informedaccordingly to the father of the deceased (PW 2 - Ram). On theother hand, PW 10 – Vijaykumar, son of village Police Patil, made areport in writing (Exh.76) to the Police Inspector, Police Station, Ausa,stating therein that Karishma committed suicide at her house by2.00 p.m. It was so informed to him by her brother-in-law – BalajiGaikwad. He, therefore, along with village Sarpanch and othervillagers, paid visit to the appellant’s house and noticed Karishma tohave hanged herself to the rafter below the tin-sheet of the room.Based on this report, an unnatural death case was registered videR.No.62 of 2016. Surprisingly, this witness was examined by theprosecution in support of his case. Learned APP in-charge of the 6Cri Appeal No.804 of 2019case did not subject him to the cross-examination. As such, hisevidence could not be brushed aside. 9.PW 1 – Kishor, Police Head Constable, was asked tomake enquiry into the unnatural death case. It is in his evidencethat the uncle of the deceased identified the dead body. The deadbody was in the middle of the room of the residential house of thedeceased and the appellant. Her eyes were closed. Mouth wasopen. Legs were straight and hands were near the body. There wasyellow colour saree around her neck. As the saree was around herneck, the neck was not visible. He sent the dead body for post-mortem examination. He then referred to the inquest panchnama(Exh.40) and spot panchnama (Exh.42). His evidence furtherdisclosed that the post mortem examination was conducted atPrimary Health Centre, Hasegaon. The Medical Officer gave aprovisional report regarding the cause of death on 27.08.2016. Thereport disclosed that deceased died due to pressing of her neck. He,therefore, reported the matter to the superior. He then inquired withthe father of the deceased. He learnt from him that the appellantwas suspecting character of the deceased. He would, therefore,illtreat her. PW 1 – Kishor lodged the FIR (Exh.4) on behalf of theState. 7Cri Appeal No.804 of 201910.During cross-examination of PW 1 – Kishor, it has beenbrought on record that the son of village Police Patil had given areport that the deceased died of hanging with the support of the tinroof of the house. He admitted that there was crowd gathered at theplace of the incident. The villagers and relatives of the deceasedwere also amongst them. He admitted that both the witnesses toboth the panchnamas were not from village Lodaga. They had comefrom a nearby village.11.The Medical Officers, who conducted autopsy, have bothbeen examined as witnesses. One of them is PW 4 – Dr.Govind. Hisevidence disclosed that he conducted the post-mortem examinationand issued the provisional death certificate (Exh.45). According tohim, there was no injury on her person except on neck. Afterdissection, projection of cartilage showed that there was fracture ofthyroid cartilage laryngeal cartilage palpable. This was internal injuryof neck. According to him, it was a case of manual strangulation. Heissued post mortem report (Exh.49). He then received aquestionnaire to which he replied vide Exh.51, stating therein thatthe strangulation could not be caused if one gets hanged with clothlike saree. There can be no strangulation in an attempt to commitsuicide. It was not necessary to preserve nail clipping in case of 8Cri Appeal No.804 of 2019death by strangulation. In his opinion, the deceased died withintwelve hours next before the post mortem examination was over.The post mortem report indicates that autopsy started by 5.15 p.m.and it was over by 6.30 p.m. on 25.08.2016. Going 12 hours behindmeans the death could be said to have occurred from 5.00 in themorning or little thereafter.12.On the same lines is the evidence of another MedicalOfficer namely Dr.Santosh (PW 8), who conducted autopsy along withPW 4 – Dr.Govind. During cross-examination, he stated that it wasnot possible for him to mention words strangulation by manualthrottling in provisional death certificate. According to him, it wasnot necessary to make mention, accordingly. His evidence wouldfurther indicate that the ligature mark depends upon the ligature,which was being used. He admitted that if ligature was soft andbody was cut down from ligature immediately after death, then therewould be no ligature mark. Internal section of neck was complicated.It was always not necessary that the victim would resist throttling bythe assailant. If there was struggle, then it might be possible thatthere were injury marks and nail marks on the body of the victim.Except palpable fracture injury, he did not see any other injury onthe body of the deceased Karishma. He denied to have given report 9Cri Appeal No.804 of 2019simply on the basis of palpable. Similar were the answers to thequestions put to PW 4 – Dr.Govind during his cross-examination.13.Both PW 4 – Dr.Govind and PW 8 – Dr.Santosh beingindependent witnesses and have no reason to take side, we find theiropinion `might’ be correct. We cannot say that it `must’ be correctsince, after all, it is the opinion evidence. Learned APP was right insubmitting that there was no reason to discard the evidence of boththe Medical Officers.14.The question is, whether the appellant is the author ofthe crime. The inquest panchnama (Exh.40) indicates that no injurymark was noticed on the neck of the deceased. Learned APPadverted our attention to the crime scene panchnama (Exh.42),which was drawn between 3:30 pm. and 4:00 pm. on the fateful dayitself. According to her, close reading of the crime scene panchnama(Exh.42) indicates that there was nothing like a stool or any articlein the room, to suggest the same was used by the deceased to standon it to get herself hanged for reaching to the rafter/support of thetin-sheet roof of the room. We concur with her submissions. Thereare, however, other aspects of the matter. 10Cri Appeal No.804 of 201915.PW 2 – Ram, father of the deceased, and his familymembers, even after having seen the dead body of his daughter, didnot lodge report with the police immediately, suspecting involvementof the appellant. Admittedly, the FIR was lodged by the policeofficer. The parents and other relatives of the deceased were calledby the police and then, their statements were recorded on 27th i.e.two days after the incident. PW 2 – Ram, father of deceased,testified that after the marriage, Karishma had come to his house for5-6 days. Then, she went back to her matrimonial home. She againreturned to his residence for Panchami festival. According to him,Karishma had stated to his wife that the appellant would suspect hercharacter and therefore, harass and beat her. If we read theevidence of PW 5 – Dropadi, she denied to have so informed to herhusband PW 2 – Ram. He admitted that while he had reached thehouse of the appellant, crowd had gathered there. According to him,initially, there was no saree around her neck. When he again visited,he found saree around her neck. If it was so, it was a reason for himto entertain suspicion then and there. Be that as it may.16.PW 3 – Gopal was witness to the crime scene panchnamaand seizure of clothes of the deceased. His cross-examinationindicates that the house in which the incident took place, was owned 11Cri Appeal No.804 of 2019by Balaji, brother of the appellant. He admitted that the house wassituated in a populated area. He went on to admit that there was nomark or injury around the neck of the deceased. Her bangles wereintact in her hands.17.PW 5 - Dropadi was mother of the deceased. Shetestified that after the marriage, Karishma had been to her house for5-7 days. She then went back to her matrimonial home. She againcame back for Panchami festival. That time, Karishma stated her tohave destroyed her life by marrying her with the appellant. She toldher that the appellant would beat on her cheek as she was lookinghere and there. The appellant had stated her that he had sexualintercourse with her for two days and now, she would have to worklike a maid in the house. Karishma further told her mother that theappellant wanted her to share the bed with him everyday. She didnot like the same. She had pulled her husband (appellant) when hewas sleeping with her. Thereupon, PW 5- Dropadi had assured toreason with the appellant. This witness further deposed that theappellant came and told them that they should make understandKarishma, as she was not allowing him to share the bed with her.She, thereupon, told both of them that they were newly married andKarishma was very young. Two days thereafter, the brother-in-law ofthe deceased came and took her back to her matrimonial home. 12Cri Appeal No.804 of 201918.Learned APP would submit here that although PW 5 –Dropadi had not related her husband about illtreatment to Karishma,the fact remains that Karishma had related her that the appellantwould assault on her cheek suspecting that she was looking here andthere. Learned APP meant to say that, this was the motive behindthe crime. According to her, even the appellant’s house was sharedby other family members. They did not have motive and it is theappellant and appellant alone, who must have killed the deceased.19.It was suggested to the mother of the deceased thatKarishma had come three hours late at the time of her own marriage.The appellant meant to suggest that her marriage took place againsther wish. The suggestion was denied. 20.PW 6 – Vilas is witness to the panchnama (Exh.56) asregards seizure of the clothes of the appellant. PW 7 – Dattatrayawas witness to the seizure of sim-card under panchnama (Exh.61). Itis now known, as to why the sim card was seized from the house ofthe appellant. There is no further evidence in this regard. PW 11 –Riyaz is Police-Naik attached to the Cyber Cell, Latur. He drewscreen-shots from the memory card and drew hash value thereof. 13Cri Appeal No.804 of 201921.PW 9 – Shivaji was uncle of the deceased. His evidencedisclosed that having learnt about death of the deceased Karishma,he went to her village alone, as he was away at Ganj-Golai at Latur.His evidence is on the point of receiving dead body of the deceasedunder acknowledgment (Exh.74). The same does not further thecase of prosecution. PW 12 – Hanumant had recorded the FIR in thecapacity as police station officer. 22.PW 13 – Vikas was the Investigating Officer. His evidencedisclosed that initially, A.D. was registered vide R.No.62 of 2016.Based on the post mortem report, crime was registered on the reportlodged by the Police Head Constable. Then, he recorded statementsof the persons acquainted with the facts and circumstances of thecase. During his cross-examination, he was candid enough to admitthat during the A.D. enquiry, it was realised to be a case of hanging.The post mortem report showed death due to strangulation. Headmitted that the spot of the incident was house of Balaji Gaikwad,real brother of the appellant. Certain questions were put to him,which, in fact, ought not to have been allowed to put by the trialcourt. He admitted that he recorded statements of the daughters ofBalaji on 28.08.2016 in `Question and Answer form’. Both thedaughters stated to him that on return from the school, they had 14Cri Appeal No.804 of 2019seen Karishma in hanged state. He then admitted to have recordedstatement of one Devidas, who stated him that the appellant wasserving with him on yearly remuneration. He also stated him thatthe appellant was in his field when the phone call was received andone Mukesh Parve informed Karishma to have committed suicide. Hefurther testified that statement of one Bharatbai Dhole, neighbour ofthe appellant, disclosed that she had never heard any quarrelbetween the couple. Similar statements were given by witnesses -Ram Rathod, Dnyanoba Chothve, Vithal Ujalambe and RamakantSamble. According to him, Karishma’s cousin (Anusaya @ Sonali)was also examined and she stated that when she met Karishma atthe time of Panchmi festival, she did not make any complaint againsther husband. He further admitted that one Bharat Dhole stated thatwhen Karishma had been to her parental house for Panchmi, therewas quarrel between her father and herself and her father told her togo to the appellant’s house and die there and thereafter, Karishmacommitted suicide.23.Learned APP first relied on the judgment of the ApexCourt in the case of Jayantilal Verma Vs. State of M.P. (NowChhattisgarh) in Criminal Appeal No.590 of 2015 delivered on19.11.2020, wherein in paragraph 9, it has been observed thus:- 15Cri Appeal No.804 of 20199. The High Court in the given situation, apartfrom relying on the testimony of PW-1, turned itsattention to the postmortem report. In this context, itwas noted that there was blood oozing from bothnostrils and mouth of the deceased, there wasswelling over the right cheek, marks of ecchymosis atepiglottis region and back of the neck, bruise presentat left axillary of cheek and there was depressionmark of a mala on the left side of the neck. It went onto state that since the incident had taken place insidethe privacy of the house, the onus was on the personsresiding in the house, to give an explanation. In suchsituations, it was noted that it is difficult for theprosecution to lead any direct evidence to establishthe guilt of the accused. In this regard, the High Courtreferred to Section 106 of the Indian Evidence Act,1872 (hereinafter referred to as the ‘Evidence Act’),which reads as under:-“106. Burden of proving fact especiallywithin knowledge.— When any fact isespecially within the knowledge of anyperson, the burden of proving that factis upon him.” It, thus, opined that insuch cases, while the initial burden toestablish the case would be upon theprosecution, it would be of a relativelylight character. There would be acorresponding a burden on the inmatesof the house to give cogent explanationas to how the crime was committed.They could not get away by keepingquiet and offering no explanation. 24.In the said case, suicide theory was also ruled out sincescratch marks were noticed on the neck. The judgment of the Apex 16Cri Appeal No.804 of 2019Court in the case of Trimukh Maroti Kirkan Vs. State ofMaharashtra, 2006 AIR SCW 5300 was referred to in the saidjudgment. 25.Learned APP relied on paragraph 25 of the judgment inthe case of Jayantilal (supra), wherein, it has been observed thus:-25. We are confronted with a factual situation wherethe appellant herein, as a husband is alleged to havecaused the death of his wife by strangulation. The factthat the family members were in the home some timebefore is also quite obvious. No explanation has beengiven as to how the wife could have received theinjuries. This is a strong circumstance indicating thathe is responsible for commission of the crime. Theappellant herein was under an obligation to give aplausible explanation regarding the cause of thedeath in the statement recorded under Section 313 ofthe Cr.P.C. and mere denial could not be the answer insuch a situation. 26.Learned APP further relied on the judgment of the ApexCourt in the case of Jayantibhai Bhenkaarbhai Vs. State ofGujarat, AIR 2002 SC 3569, to submit that the defence of alibiought to have been proved by the appellant upto to the hilt and noton preponderance of probabilities.There can be no two views over the same. The initialburden to prove the offence beyond reasonable doubt rests on the 17Cri Appeal No.804 of 2019prosecution. It is only for the accused, who wish to bring his casewithin any of the exceptions or make out the defence of alibi, toprove the same. Needless to mention, the defence of alibi need notbe proved beyond reasonable doubt. It is sufficient to prove that itwas just impossible for him to be at the crime scene from the placewhere he claimed to have been by that time. It, however, should nothave been in the mouth of the prosecution that the other witnessesexamined by the Investigating Officer, who supports the appellant’scase, should have been examined by the appellant as defencewitnesses. Non-examination of any of them by the prosecutionamounts to withholding the evidence favourable to the appellant.27.The cross-examination of the Investigating Officer hasdestroyed all the case. The evidence on record indicates that thematrimonial home was not shared by Karishma and the appellantalone. The appellant’s brother – Balaji and his wife were alsoresiding with them. In the case of Jayantilal (supra), the husband ofthe deceased along with all the in-laws were accused therein.Unfortunately, the father-in-law had passed away, pending theappeal. The High Court did not find any evidence against themother-in-law; hence she was acquitted. As such, the husbandalone was the appellant before the Supreme Court. 18Cri Appeal No.804 of 201928.Admittedly, PW 10 – Vijaykumar, son of village PolicePatil, had given a report in writing to the police that he along withothers had visited the house of the appellant and noticed thedeceased was hanging from the rafter/support of the tin sheet. Onthe lines of the same, there were some statements recorded by theInvestigating Officer. None of them or any neighbour was examinedby the prosecution in this case as prosecution witness. When PW 10– Vijakumar gave the written report, the prosecution preferred not tocross-examine him inspite of he claimed to have seen the deceasedhanging from the rafter. On the other hand, the evidence of motherof the deceased indicates that the deceased was reluctant to sharebed with the appellant. She did not like the same. It was not a caseof marriage over 20 years. The deceased was 19 years of age. Herdeath had occurred within 45 days of marriage. This ought not tohave been her attitude. The defence was, therefore, justified insuggesting her mother that the marriage took place against herwish. Said suggestion gets reinforced by the fact that the motheradmitted that the deceased had alleged her to have ruined her lifeby marrying her with the appellant. True, said statement qualifiedthat the appellant had hit on her cheek as she would look here andthere. One Devidas Rathod admitted that the appellant was in hisfield when he received phone call informing Karishma to have 19Cri Appeal No.804 of 2019committed suicide. Same has come through the evidence of theprosecution witness, for which the appellant is not required to leaddefence evidence.29.On appreciation of the entire evidence on record, weconclude that the prosecution has failed to prove beyond reasonabledoubt that it was a case of manual strangulation. Possibility ofhanging (suicidal) could not be ruled out in view of the very manyadmissions given by the Investigating Officer and the written reportlodged by PW 10 – Vijaykumar, son of village police patil after havingwitnessed the deceased hanging from the rafter and some of theneighbours, who had seen the same scene. None of the independentwitnesses had been examined. The relatives of the deceased weresummoned by the police for recording their evidence. Even if it isassumed that it was a case of homicidal death, there is no evidenceto indicate that the appellant was in the company of the deceasedat the material time. The death took place during the day time, i.e.the time by which a man, usually, happens to be at his work place.Same is made out from the statement of one Devidas Rathod. Samesuggests that the appellant was not home at the material time.Moreover, the matrimonial home of the deceased was shared bymore than two adult family members. It, therefore, cannot be said
Decision
20Cri Appeal No.804 of 2019that the prosecution has brought home the charge against theappellant beyond reasonable doubt. 30.In the result, the appeal succeeds. Hence, the followingorder:-(i)The appeal is allowed.(ii)The impugned order dated 02.05.2019, passed bylearned Addl. Sessions Judge, Latur, in Sessions case No.92 of 2016,convicting and sentencing the appellant for the offences punishableunder Sections 302 and 201 of Indian Penal Code, is set aside. He isacquitted of the said offences.(iii)The appellant be released forthwith, if not required in anyother case.(iv)Fine amount paid by the appellant, if any, be refunded tohim.(v)In view of the above, Criminal Application No.407 of 2023does not survive and stands disposed of. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.]KBP