Harishandra S/O Rameshwar Kewat vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 3082 Bom

                                                        1                              apeal599.13.odt

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            NAGPUR BENCH AT NAGPUR




                                                                                        
                                   CRIMINAL APPEAL NO.599/2013




                                                                
            Harishandra s/o Rameshwar Kewat,
            aged 37 years, Occ. Labour, 
            r/o Kawarapeth, Tq. Umrer,
            Dist. Nagpur.                                        .....APPELLANT




                                                               
                             ...V E R S U S...

            The State of Maharashtra through
            P.S.O. P. s. Umrer, Dist. Nagpur.                    ...RESPONDENT




                                                
     ----------------------------------------------------------------------------------------------------
                             
     Mrs. Richa Inamdar-Tiwari, Advocate for appellant (Appointed).
     Mrs. M. N. Hiwse, A.P.P. for respondent.
     ----------------------------------------------------------------------------------------------------
                            
                                      CORAM:-  B. R. GAVAI &    V. M. DESHPAND E, JJ.
                                      DATED :-   
                                                 JUNE 22, 2016

     J U D G M E N T (Per : V. M. Deshpande, J.)

1. Being aggrieved by the judgment of conviction and order of

sentence passed by Ad hoc Additional Sessions Judge-1, Nagpur on

02.04.2013 in S. T. No. 572/2011 whereby the appellant is convicted for

the offence punishable under Section 302 of IPC, he is directed to suffer

imprisonment for life and to pay a fine of Rs.5000/- and in default to

suffer further simple imprisonment for one year and also for the offence

punishable under Section 201 IPC and on that count, he was directed to

suffer imprisonment of three years and to pay a fine of Rs.3000/- and in

default to suffer further simple imprisonment for six months.

2 apeal599.13.odt

2. We have heard Mrs. Richa Inamdar-Tiwari, the learned

counsel who was appointed to represent the appellant and Mrs. M. N.

Hiwse, the learned A.P.P for the State. Both of them took us through the

notes of evidence and record and proceedings of the sessions trial.

3. Nanda Tayde (PW1) is sister of deceased Ritu. Her marriage

was solemnized with the appellant in the year 1998. After her marriage,

she started residing with the appellant at Coal Mines, Umrer where the

appellant used to work. For the initial six years, the appellant treated

the deceased in good manner and properly. However, since the couple

was not having any issue, on that count the appellant started ill treating

the deceased. She was also subjected to physical assault at the hands of

the appellant. These facts were used to be narrated by the deceased to

Nanda (PW1). The house in which the couple used to reside was

standing in the name of the deceased and the appellant used to

pressurize the deceased that the said house should be transferred to his

name. In 2011, the brother of the appellant by name Ganesh died due to

dog bite. Thereafter, the appellant established illicit relations with the

widow of Ganesh. The said relations were objected by the deceased. On

that count also, the deceased was physically assaulted. Therefore, a

3 apeal599.13.odt

police complaint was lodged by the deceased against the appellant in the

police station.

According to the prosecution, on 04.08.2011, the deceased

along with the appellant came to Umrer. Nanda made a phone call on

08.08.2011 to the deceased and had a conversation. However, after

11.08.2011, though repeated phone calls were made by Nanda to the

deceased, her phone calls were not only not responded but the mobile

was switched off. Therefore, on 17.08.2011, Nanda came to Umrer at

the house of the deceased. That time, she noticed that the house was

closed. She, therefore, made enquiry with Manda Kawle (PW3). On

enquiry, it was revealed to her by Manda that since last 8 days, she could

not notice Ritu.

She also informed that she noticed appellant going alone.

According to the prosecution, on the said day, further search

was not made due to darkness.

On 18.08.2011, Nanda again visited the house of the

deceased. That time, on the backside, she noticed the dead body of Ritu.

With these assertions in the oral report Exh.-28 dated 18.08.2011, the

criminal law was set into motion. On the basis of the oral report Crime

No.95/2011 was registered against the appellant. Printed FIR is at Exh.-

29. Police Inspector Gite, who registered the offence, handed over the

4 apeal599.13.odt

investigation to Subhash Kale (PW7). He visited the spot. The spot was

shown by Nanda from where the bad odour was emitting. On removing

the stones above the gutter, a dead body was noticed. It was identified

by Nanda after it was taken out of the gutter with the help of employees

of the Municipal Council. The spot panchanama Exh.-64 was prepared,

inqeust was done vide inquest panchanama Exh.-65. After completion of

usual investigation, charge-sheet was filed in the Court of law.

4.

After the case was registered as Sessions Trial No.572/2011,

charge was framed against the appellant. He denied the same and

claimed for his trial. In order to bring home the guilt of the appellant,

the prosecuting agency examined seven witnesses. The statement of the

appellant was also recorded under Section 313 of the Cr.P.C. From the

replies given to the questions put to him under Section 313 of the Cr.P.C.

the defence of the appellant is that of alibi. According to him, at the

relevant time, he was at Banda in the State of Utter Pradesh. He,

therefore, pleaded before the court below that he was falsely implicated.

The Court below, after appreciation of the evidence, found him to be

guilty and sentenced him to suffer life imprisonment.

5 apeal599.13.odt

5. The present case is based on the circumstantial evidence.

There is no eye witness account. It is not in dispute that the appellant

was married with deceased Ritu in the year 1998. The evidence of

Nanda (PW1) and Ajay (PW2), the sister and brother of the deceased

shows that the deceased was subjected to cruelty after some initial years

of her marriage at the hands of the appellant. According to these two

witnesses, the reasons for ill treatment was that the deceased was

issueless and the house which was standing in the name of the deceased

used to be demanded by the appellant and also on account of his illicit

relations with his sister in law. On these material aspects, the evidence

of these two prosecution witnesses remained unshaken. The evidence of

Manda (PW3) who is an independent witness and neighbour shows that

there used to be quarrels in between the appellant and the deceased on

account of they being childless.

6. According to the evidence of Nanda (PW1), due to the

disputes, a complaint was lodged by Ritu with Police Station, Umrer.

Ultimately a compromise was arrived in between them on 02.07.2011. It

is to be noted here that the deceased embraced Christianity. A document

was executed in between them. The said document is at Exh.-80. The

said document was seized by the Investigating Officer from Mr. Niyogi, a

6 apeal599.13.odt

Paster and this is brought on record in the cross-examination of the

Investigating Officer.

According to Nanda (PW1) after compromise on 03.08.2011,

the couple stayed with her. On 04.08.2011, the couple returned to

Umred and on 08.08.2011 Nanda made a phone call to the deceased and

invited her for Rakhi festival. However, later on from 11.08.2011 when

the phone calls were made to the deceased by Nanda, they were not

responded and the phone was showing as switched off.

7. Manda (PW3) an independent witness, her evidence shows

that she had seen lastly the deceased alive on 09.08.2011. Her evidence

also shows that from 09.08.2011, after the lunch, the appellant was not

present in his house. Her evidence shows that there used to be disputes

in between the couple on account of transfer of the house.

8. Shyam Sandesh (PW6), is a Paster of the Church where the

deceased used to visit. He also supports the version of other prosecution

witness in respect of the quarrel on account of transfer of house. The

evidence of Shyam Sandesh, the Paster and an independent witness also

shows that he along with other senior paster by name Niyogi pacified the

accused and Ritu.

7 apeal599.13.odt

9. From the aforesaid evidence, it is crystal clear that the

prosecution has successfully established the motive on the part of the

appellant to eliminate his wife.

10. The prosecution evidence as it is brought on record clearly

shows that the deceased was in the company of the appellant. It is also

the evidence adduced by the prosecution as could be seen from the

evidence of the independent witness Manda that she has lastly seen the

deceased alive on 09.08.2011 and from noon hours she could not see the

appellant at his house. The dead body of Ritu was found on the

backyard of the house where the couple used to reside.

The spot panchanama is at Exh.-64. Police arrived at the spot

after they were intimated by Nanda (PW1) that bad smell is emitting

from the house of the appellant.

Spot panchanama which is a contemporaneous document,

shows that when police party reached to the spot, it was noticed that the

house was locked from outside, therefore, lock was required to be broke

open and thereafter police party along with pancha witness including

Paster Shyam Sandesh went inside the house and ultimately they noticed

the dead body of Ritu, dumped in gutter.

                                                      8                            apeal599.13.odt

     11.            The   appellant   has   taken   the   plea   of   alibi.     The   burden   of




                                                                                    

proving the special defence of alibi is on the accused setting it up.

However, the prosecution will not get absolved in proving its case

against the accused. It is always sufficient for the accused to lead such

an evidence as it creates reasonable doubt to the possibility of his being

present at the spot.

In the present case, the prosecution case was successful in

establishing the case on the basis of last seen theory and also proving the

fact that from 09.08.2011 the appellant was not seen in Umrer. The Post

Mortem Report of the deceased was at Exh.-71. It is proved by Dr. Anil

Meshram. The Post Mortem was conducted on 18.08.2011. In his cross-

examination, the Doctor has stated that, "Dead body of Ritu is brought

towards us at least 10 to 15 days after the death." This evidence

corroborates the fact that the probable date of death must be on

09.08.2011.

We are of the view that the prosecution has successfully

established the presence of the appellant in view of the evidence of

Manda (PW3) at the time proximate to the occurrence of the offence.

12. Though, the appellant has taken a plea of alibi, he has not

brought any material on record to show that at the relevant time, he was

9 apeal599.13.odt

at Banda. It is well settled that the plea of alibi must be proved with an

absolute certainty so as to completely exclude the possibility of the

presence of the concerned at the place of occurrence. On this touchstone

of law, when there is no iota of material even to suggest remotely that

the appellant was not present at the time of the incident, we have no

hesitation to confirm the judgment and order of conviction passed by the

learned Judge of the Court below.

In view of above, the appeal dismissed.

The learned counsel appointed on behalf of the appellant be

paid Rs.5,000/- by the Legal Services Sub Committee, Nagpur for

conducting this case before this Court.

                          (V. M. Deshpande)                    (B. R. Gavai)
   





     kahale