Manohar Kushaba Gangurde vs Police Sub-Inspector Of The State ...
2004 Latest Caselaw 596 Bom

JUDGMENT

R.S. Mohite, J.

1. This is an appeal filed by the appellant (hereinafter referred to as the accused) challenging the judgment and order passed by the 4th Additional Sessions Judge, Nasik on 30.11.1991 in Sessions Case No. 173 of 1991 convicting the accused for an offence under Section 302 of the Indian Penal Code and sentencing him to undergo R. I. for life and to pay a fine of Rs. 1,000, in default to undergo R. I. for six months.

2. The brief facts of the prosecution case are as under :

A, That the complainant Kushaba Dondiba Gangurde (P. W. 2) was a resident of village Vadali Bhairav where he was residing along with his wife and two sons, namely, Kalu and Mohan. The accused Manohar was his third and eldest son and he lived adjacent to the house of the complainant, separately from the other members of the family. The deceased Baby alias Sunanda was the wife of the accused Manohar and was living with him in his house. The relationship between the accused and the deceased were not cordial as the accused had kept a mistress. The deceased wife Baby used to quarrel with the accused on account of the accused keeping a mistress.

B. That on the date of the incident i.e. 13.3.1991, at about 7.00 p.m., one Baban Battise (P.W. 3), who was a person residing nearby, heard someone giving abuses. He glanced out of the house and saw the accused and the deceased at a distance of about 100 cubits from his house near the water tank. He saw that the deceased was weeping and the accused was giving a thrcal to kill her. He heard the accused telling the deceased that, he should be permitted to taring his mistress or else he would kill the deceased-wife. The deceased was saying that she would not permit, the accused to bring the other woman. He saw the accused getting enraged and thereafter lifting the deceased and throwing her on the ground. Seeing this, this witness got frightened and went inside his house.

C. It is further case of the prosecution that on the same day i.e. 13.3.1991, at about 10:00 p.m., the accused beat his wife Baby. The deceased Baby rushed out of the house after receiving the beating at the hands of the accused. The accused chased the deceased and beat her with a bamboo stick, causing multiple injuries on her person. He thereafter dragged the deceased by holding her legs and brought her to his house in naked condition and left the deceased at his house when he found that she was dead and went away from the spot.

D. The father of the accused (P.W. 2) Kushaba Dondiba Gangurde was amongst the several villagers who had gathered there. He went to the Vadner Bhairav Police Station and lodged a complaint. In the complaint he gave a detailed and an eye-witness account as to how his son beat and killed his daughter-in-law. He claimed to be an eye-witness to the entire incident of beating.

E. Prior to the lodging of this complaint, P.W. 15 P.S.I. Ramnath Mhatarba Dlghe happened to have gone to village Vadali Bhaira v. While he was there, Head Constable Deore and other police staff had brought the accused to the Vadner Bhairav Police Station on 1 4.3.1991 at 00:40 hours. P.S.I. Dighe came to the police station and made inquiries with the accused and then again went to the village Vadali Bhairav. There he went to the house of the accused and found the dead body of the deceased lying outside the house of the accused. He kept a constable, near the dead body. The father, mother and other relatives of the accused had come to the police chowky. After lodging a complaint against his own son as aforesaid, which was reduced into writing, P.S.I. Dighe then registered an offence under Section 302 of the I.P.C. against the accused. Since the accused was already in the police station, the banian and the underpant of the accused were seized in the presence of the panchas. P.S.I. Dighe again went to the village and prepared the inquest panchriama of the dead body (Exhibit 11). He sent the dead body for post-mortem. He prepared the spot panchanama as per Exhibit 12. Under this parichnama he seized certain articles like the yellow metal beads and cash of Rs. 44/- lying at the spot of the offence. He also seized bangle pieces, blood smeared earth and stories from the said spot. He recorded the statement of P.W. 9 Anusaya, the mother of the accused. He also recorded the statements of others, sent the seized articles to the chemical analyser and after receiving the report from the chemical analyser, he filed the charge-sheet in the Court.

3. After the case was committed to the Court of Sessions, the Trial Court framed a charge under Section 302 of the I.P.C, against the accused. The prosecution examined in all 15 witnesses to prove its case. The defence of the accused was that at noon time on the day of the incident i.e. 13.3.1991 he had gone to another village for attending a marriage. While returning in the evening to his own village, his motorcycle developed a defect near the Shirvade Fata and therefore he came to his village Vadali Bhairav at about 10:45 in the night. When he reached home, his wife was not at home. He asked his son after awakening him as to where was his mother Baby. The son told him that he did not know and therefore the accused went towards the water tank to see her. He found the dead body of the deceased Baby in a pit, near the easing ground. He brought the dead body of his wife Baby to his house.

4. On considering the entire evidence and the record before it, the Trial Court passed the impugned judgment and order and convicted and sentenced the accused as aforesaid.

5. We have perused the entire record. The case is one of circumstantial evidence. In such a case, each of the circumstances have to be independently proved and the link of circumstances must form a chain which must be complete. The evidence must lead to the guilt of the accused beyond reasonable doubt and should not be explainable by any other hypothesis. The evidence has been scrutinised by us by keeping the aforesaid basic principles in mind.

6. The first circumstance relied upon by the prosecution is the motive to commit the offence. It is not disputed even by the defence that the accused had kept a mistress. In fact, the said mistress Sunanda has been examined by the prosecution as P.W. 12 and she has stated that her relations with the accused Manohar were like husband and wife. She has further stated that Baby, who was the wife of the accused, used to frequently quarrel with the accused due to his relationship with her. In her cross-examination she has stated that though she did not personally witness the quarrels, the accused used to tell her about such quarrels taking place. P.W. 3 Bataan Battise is a witness examined by the prosecution to show the immediate motive for the commission of the crime. He states in his evidence that on 13.3.1991 he heard a noise of giving of abuses and therefore looked from the door of his house. He saw the accused Manohar and Babybai near the water tank at a distance of about 100 cubits from his house. He saw the deceased weeping. The accused was giving her a threat that he would kill her. He heard the accused saying to the deceased that he should be permitted to taring his mistress or else he would kill her. The deceased Babybai said that she would not permit the accused to bring the said woman. At this the accused got enraged and thereafter lifted Babybai and threw her on the ground. This evidence indicates not only the presence of the accused in the village at 7 o'clock in the evening of 13.3.1991 but also indicates that the accused and his wife had a violent quarrel just prior to the incident which took place a little later at 10 o'clock. The evidence of this witness is not. shaken in his cross-examination. In our view, the circumstance of motive has been adequately proved by the prosecution.

7. The next circumstance relied upon by the prosecution are the numerous injuries which are found on the dead body of the deceased and which indicate a violent assault on her person. Annexed to the post-mortem notes is the list of such injuries, There are in all 12 injuries which include injuries to the head and to the face. 11 appears that there were 3 injuries to the private part of the deceased. P.W. 1 Dr. Arun Govindrao Sulakhe has conducted the post-mortem. He has deposed that there were multiple injuries on the body of the deceased and all these injuries could be caused with a bamboo stick and if a person was lifted and thrown on the ground. He made exceptions in the case of injuries Nos. 4, 9 and 10 which were stated to be near the private part of the deceased and stated that these injuries were not possible by a fall on the rocks. He stated that these injuries were possible if there was interference near the private part. He further stated that injury Nos. 4, 9 and 10 were possible if one wanted to ravish a woman forcibly by using violence without her consent. It. was argued on behalf of the defence that the accused would not violate his own wife forcibly without her consent. In our view, this is not a case of rape or ravishing of the wife by the accused. All the injuries, including injury Nos. 4, 9 and 10 caused to the private part of the deceased can be caused by a bamboo stick. The injuries on the private part can be caused by forcible insertion of a bamboo stick. It must be remembered that the dead body of the deceased was found in naked condition. The chemical analyser's report also indicates that the bamboo stick which was seized contained blood stains on its narrow portion.

8. The next circumstance against the accused is the fact that he has been last seen together with the deceased. P.W. 8 Mangala Hiraman More is the real sister of the accused Manohar. She deposed that she had seen the accused Manohar giving a blow to the deceased Babybai with a bamboo. He had given her further threat that: if she came forward, he would assault Her and therefore this witness went into her house. Though in the cross-examination this witness has stated that she did not see the accused beating Babybai but saw him lifting Babybai and bringing her home, the fact remains that she had deposed to the accused's presence. Her evidence indicates that the accused was the last person to be seen with the deceased. This witness has categorically stated that the accused gave a blow to the deceased Babybai with a bamboo. This has not been specifically controverted in the cross-examination, particularly in respect of the fact that the accused was armed with a bamboo stick with which he inflicted blows on the deceased.

9. One additional circumstance against the accused is the completely false nature of his defence. The Apex Court in the matter of Birbal v. State of M.P. has held that giving of a false explanation by the accused is an additional link in the chain of circumstances completing the chain: In the present case, in his 313 statement, the accused gave that story that in the noon of the day when the incident took place, he had left the village and had gone to another village for attending a marriage. While returning in the evening, his motorcycle developed a defect near Shirvade Fata and therefore he returned to his village Vadali Bhalrav at about 10:45 in the night. When he reached home, his wife was not at home and so he asked his son after awakening him as to where his mother was. The son told him that he did not know and therefore the accused went towards the water tank to see her.

He found the dead body of the deceased Baby in a pit, near the easing ground. He brought the dead body of his wife Baby to his house. This defence is falsified by the evidence of P.W. 10 Banubai Jaman Gangurde. This witness stales that at 10:30 p.m. that night, she was awakened by one Sumanbai Mali who asked her to see what has happened in the house of the accused. When Banubai went to the house of the accused, there was a crowd already collected near the house of the accused. The wife of the accused was lying dead near the house of the accused. She makes no reference to the presence of the accused, who claims to have come at 10:45 p.m. There is no suggestion put in the cross-examination to this witness to suggest that she was not called at 10:30 p.m. The evidence of this witness suggests that the incident must have taken place prior to 10:30 p.m. and that the villagers had already collected near the house of the accused prior to 10:30 p.m. The story of the accused that he came at 10:45 p.m., and then searched for his wife and found her dead subsequently is therefore falsified by this evidence. Similarly, the accused has attempted to explain the blood stains on his clothes by stating that he lifted the dead body of his wife and brought it back to his house. This evidence is falsified by the scene of offence panchnama (Exhibit 12) which clearly indicates that there were signs of dragging of the dead body seen from the place where the dead body was lying on the otta upto the above mentioned south-north lane and thereafter upto the vacant ground. We find that the falsity of the defence is one additional link which completes the chain of circumstances.

10. For all the aforesaid reasons and for the reasons which are recorded in the impugned judgment, we find that the prosecution has proved its case beyond reasonable doubt. The appeal is, therefore, dismissed. The bail bond of the accused stands cancelled. The accused to surrender forthwith to undergo his sentence. Needless to say that the accused will be entitled to set off of the imprisonment already undergone by him.