Amol @ Anil S/O Gajanan Kaware vs State Of Maharashtra, Through ...
2016 Latest Caselaw 3667 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                     
                                   NAGPUR BENCH, NAGPUR




                                         
                            CRIMINAL APPEAL NO.316 OF 2014
                             
                            
      Amol @ Anil s/o. Gajanan Kaware,
      Aged about 27 years, Occ.
      Business, r/o. Sainath Nagar,
      Kaul Khed, Tq. and Distt.
      

      Akola.                                    ..........      APPELLANT
   



              // VERSUS //





      State of Maharashtra,
      Through P.S.O., Khadan,
      Police Station, Tq. and Distt.





      District Akola.                               ..........       RESPONDENT


      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                         None for the Appellant.
              Mrs.G.R.Tiwari, A.P.P. for the Respondent/State.
      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=




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                                         CORAM     :  B. R. GAVAI &




                                                                                      
                                                              V. M. DESHPANDE, JJ.

DATE : 8.7.2016.

ORAL JUDGMENT (Per B.R.Gavai, J) :

1. This appeal takes exception to the Judgment and Order

passed by the learned Additional Sessions Judge, Akola in Sessions

Trial No.15 of 2012 thereby convicting the appellant herein for the

offence punishable under Section 302 of the Indian Penal Code and

sentencing him to suffer imprisonment for life and to pay a fine of

Rs.1,000/-; in default to suffer rigorous imprisonment for three

months.

2. The prosecution case, as could be gathered from the

material placed on record, is thus :

On 12.8.2011, one complaint came to be lodged by

Prakash Karwe/Original accused no.2 that, on the earlier night, his

brother Amol had killed his wife Vandana and that her dead body

was lying in their house. On the basis of oral report of said Prakash

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below Exh.96, the matter came to be registered vide F.I.R. No.168 of

2011 for the offence punishable under Section 302 of the Indian

Penal Code. The police went to the spot. The accused had left the

house. The police executed the spot panchanama and inquest

panchanama and dead body of the deceased was sent for post

mortem examination.

3. In the meantime, Original accused no.3 Gajanan, father

of accused nos. 1 and 2, informed Bhaskar Shaligram Wakte (PW-2),

father of deceased Vandana that his daughter was serious. He along

with the other relatives reached the spot. When they reached the

house of the accused, they found dead body of Vandana lying in the

house. As such, he also reported the matter to the Police Station. The

said report was included in the F.I.R. which was already registered.

However, the offence punishable under Section 498-A r/w. 34 of the

Indian Penal Code was added.

4. On the basis of F.I.R., investigation was set into motion.

After completing investigation, the charge sheet came to be filed in

the Court of Judicial Magistrate, First Class, Akola.

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5. Since the case was exclusively triable by the learned

Sessions Judge, the same was committed to the Court of learned

Sessions Judge, Akola. Charge was framed for the offence

punishable under Section 302 of the Indian Penal Code against the

Original accused no.1 i.e. husband of the deceased and against four

accused i.e. brother of accused no.1 and his parents for the offence

punishable under Section 498-A r/w. 34 of the Indian Penal Code.

The accused pleaded not guilty and claimed to be tried. At the

conclusion of the trial, the learned trial Judge acquitted all the

accused of the offence punishable under Section 498-A r/w. 34 of the

Indian Penal Code; however, he passed an order of conviction as

aforesaid insofar as the present appellant is concerned. Being

aggrieved thereby, the present appeal.

6. When the matter is called out, Counsel for the appellant

was not present in the Court. However, in view of the following

observations of Their Lordships of the Apex Court in the case of

K.S.Panduranga .vs. State of Karnataka reported in 2013 ALL MR

(Cri) 1485 (S.C.), we have taken up the appeal for hearing.

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" It is not obligatory on the part of the Appellate Court in all circumstances to engage amicus curiae in a criminal

appeal to argue on behalf of the accused failing which the

judgment rendered by the High Court would be absolutely unsustainable. It is one thing to say that the court should have appointed an amicus curiae and it is another thing to

say that the court cannot decide a criminal appeal in the absence of a counsel for the accused and that too even if he deliberately does not appear or shows a negligent attitude

in putting his appearance to argue the matter. Thus, the

contention of the learned counsel for the appellant that the High Court should not have decided the appeal on its

merits without the presence of the counsel does not deserve acceptance. "

7. With the assistance of the learned A.P.P., we have

scrutinized the entire evidence on record.

8. Since the learned trial Judge has acquitted all the

accused including the appellant herein for the offence punishable

under Section 498-A of the Indian Penal Code, we would be only

required to consider the evidence insofar as the offence punishable

under Section 302 of the Indian Penal Code with regard to the

present appellant is concerned.

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9. Avinash Ankushrao Shelke (PW-1) is the Medical Officer

who had conducted post mortem on the dead body of deceased. On

perusal of his evidence, it would reveal that the deceased had

sustained the following external and internal injuries :

External Injuries :

1.

Contused lacerated wound placed longitudely on right side zygomatic region, lunar shaped, border

extending upwards to lateral angle of left eye, then there is one area of skin and tissue.

2. Another wound from described wound of size 2 x

0.5 cm. and contused lacerated wound of size 6 x 2.5 cm.

Bone deep.

3. Contused lacerated wound placed oblique over right eye brow upper and lower eyelids, appears dark

coloured with swelling. On opening eye, Sub-conjuctival haemorrhage i.e. spot laterally black eye.

All these injuries were ante mortem.

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             Internal Injuries   :




                                                                                    
                                                            

1. Under scalp haematoma present in right fronto and parieto temporal region, about 80 grams, blood clots present, dark red in colour.

2. Fracture over right fronto temporal region with length of 9.5 cm and gap of 1.3 cm near midpoint of temporal region.

3. Fracture line above mentioned is extending upto

parietal region, imminence of right side in form of crack undisplaced.

4. Fracture line extending of size 9 cm.

5. Area near fronto parietal region on fracture segment, depressed and over undisplaced fractureline extending upto

mid parietal region of size 6.5 cm.

6. Brain :- Dura lacerated, corresponding to injuries, 1 and 2 above, cerebral contusion over right cerebral hemisphere with sub-arachnoid haemorrhage over parietal

temporal lobe and some area around frontal lobe, along with there is one area of softening with haemorrhage and depressed size of 2 x 2 cm. Over temporal region on right side

i.e. cerebral laceration.

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10. The cause of death is given to be due to head Injury. In

that view of the matter, we find that no interference is warranted

with the finding that death of the deceased was homicidal.

11. Bhaskar Shalibram Wakte (PW-2) is father of the

deceased. The material part of his evidence is with regard to the

offence punishable under Section 498-A of the Indian Penal Code.

Since the accused are already acquitted of the said offence, it is not

necessary to discuss the said evidence. Insofar as the offence

punishable under Section 302 of the Indian Penal Code is concerned,

he states that, on the day next to Rakshabandan, they received a

phone call from the father-in-law of deceased that the deceased was

admitted in the hospital. Therefore, they came to the house of

deceased Vandana by vehicle. After reaching there, they saw dead

body of Vandana in the house of the accused. Police were already

present there and Iron rod (Musal) was lying by the side. Thereafter,

this witness lodged the report. In the cross-examination of Bhaskar

Wakte (PW-2), it has been brought on record that the present

appellant along with his wife was residing in a separate block and his

brother was residing in another block.

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12. The material evidence in the present case would be the

deposition of Deepak Ramji Parate (PW-3). He is neighbour of the

appellant. He states that, on 12.8.2011, Original accused no.3

Gajanan had come to his house in the morning. He had told him that

the door of the house is not yet opened. He, therefore, called him to

his house and after going into the house, he called his son. His son

i.e. accused no.1 came out of house and told that he had killed his

wife and he had taken poison. Though this witness has turned

hostile; however, as a settled law, the entire evidence of hostile

witness need not be discarded. Such part of his evidence which is

found to be trustworthy can always be taken into consideration. In

his examination-in-chief itself, it has been stated thus :

" On 12.08.2011, accused no.3 Gajanan had come to my house in the morning. He had told me that the door

of the house is not yet opened. Therefore, he had called me to his house. Then after going to his house, he had given call to his son. His son i.e. accused no.1 is present

before the Court. Thereafter, his son came out of the house and he told that he had killed his wife and he had taken the poison."

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Though witness Deepak Parate (PW-3) has been cross-

examined by the learned A.P.P. as well as the defence Counsel, the

aforesaid evidence has remained unshattered.

13. It could thus be seen that from the evidence of this

witness that the following facts are brought on record :

1.

That the house in which the deceased and the

appellant were residing was closed and accused no.1 was

not opening the door.

2. Therefore, the father of appellant came to this

witness. Both of them went to the house and gave a call.

3. Thereafter, accused Amol came out of the house

and stated that he has consumed poison. He had stated

that he has killed his wife and consumed poison.

14. It could thus be seen that the extra-judicial confession,

which is voluntary, clearly implicates the present appellant. It is

further to be noted that the prosecution has succeeded in

establishing that only the appellant and the deceased were living

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together in the house. When Deepak Parate (PW-3) along with father

of the appellant went to the house of appellant herein, the door of

the house was closed from inside and after they went to the house,

the door was opened by the appellant. It could thus be seen that,

after the prosecution has established the aforesaid, it was for the

accused/appellant to give explanation. It will be appropriate to refer

to the following observations of Their Lordships of the Apex Court in

the case of Trimukh Maroti Kirkan .vs. State of Maharashtra

reported in 2007 CRI. L. J. 20.

" 17.Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in

leading evidence to show that shortly before the

commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently

held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance

which indicates that he is responsible for commission of that crime. "

15. In the case in hand, except denial, the appellant has

failed to give any explanation. It is further to be noted that the case

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of prosecution is also corroborated by the F.I.R. below Exh.97.

Nodoubt that the F.I.R. itself would not be sufficient to implicate the

appellant; however, it can very well be used to give credence to the

prosecution case which is otherwise established.

16. In view of the above, we find that no interference is

warranted in the findings recorded by the learned trial Judge. The

appeal is without substance and as such, it is dismissed. No costs.

                                       JUDGE                             JUDGE
       
      


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