Vimal W/O Yuvraj Jadhav And ... vs The State Of Maharashtra, Thrugh ...
2016 Latest Caselaw 785 Bom

    212-Cri.Apeal-541-13                                                                     1/10


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                       
                             NAGPUR BENCH, NAGPUR.

                              CRIMINAL APPEAL NO.541 OF 2013




                                                               
    1.  Vimal w/o Yuvraj Jadhav
         Age about 35 years, Occ. Labour, 




                                                              
         R/o Bhimjyoti Nagar, Chikhali, 
         Tah. Chikhali, Dist. Buldana. 

    2.  Yuvraj s/o Dhondiram Jadhav
         Age about 40 yerars, Occ. Labour, 




                                                 
         R/o Bhimjyoti Nagar, Chikhali, 
         Tah. Chikhali, Dist. Buldana.  
                                      
        (At present in Akola Central Prison)                      ...  Appellants. 

    -vs- 
                                     
    The State of Maharashtra, 
    through P.S.O. Chikhali Police Station, 
    Tah. Chikhali, Dist. Buldana.                                 ...  Respondent.

Shri R. K. Tiwari, Advocate for appellants.

Shri M. J. Khan, Additional Public Prosecutor for respondent/State.

CORAM : B. R. GAVAI & A.S.CHANDURKAR JJ.

DATE : MARCH 21, 2016

Oral Judgment : (Per A. S. Chandurkar, J.)

The appellant No.1 who has been convicted for an offence

punishable under Section 302 and Section 201 read with Section 34 of the

Indian Penal Code (for short, the Penal Code) as well as the appellant No.2

who has been convicted for an offence punishable under Sections 404 and

201 read with Section 34 of the Penal Code have challenged the same in the

present appeal. The trial Court by judgment dated 31/07/2013 in Sessions

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Case No.110 of 2012 after convicting the appellants has sentenced the

appellant No.1 to suffer life imprisonment with fine of Rs.5000/- for the

offence punishable under Section 302 of the Penal Code, rigorous

imprisonment for four years with fine of Rs.2000/- for the offence punishable

under Section 201 read with Section 34 of the Penal Code and to suffer

rigorous imprisonment for two years with fine of Rs.2000/- for the offence

punishable under Section 404 of the Penal Code. The appellant No.2 has

been sentenced to suffer rigorous imprisonment for a period of four years

with fine of Rs.5000/- for the offence punishable under Section 201 read

with Section 34 of the Penal Code.

2. The case of the prosecution as can be gathered from the material

on record is that one Digambar Gawai was residing along with his wife

Nandabai and two children being a son and a daughter. On 08/07/2012 at

about 9 am when his son wanted something to eat, Nandabai along with her

son went to the grocery shop for purchasing puffed rice along with peanuts.

Thereafter, the son returned back home. Digambar along with his children

waited for the return of Nandabai. She did not return home for the entire

day. The family members took her search and thereafter on 09/07/2012

said Digambar lodged a missing report. Ultimately on 16/07/2012 said

Digambar was informed by the police that the appellants had killed his wife

and had buried her dead body in their house.

212-Cri.Apeal-541-13 3/10

3. After obtaining a search warrant, the said body was exhumed.

After identifying the same to be that of his wife, Digambar lodged a report

with the police Authorities. On completion of the entire investigation, the

charge-sheet was filed against the appellants. As the appellants did not plead

guilty, they were tried by the Sessions Court. On conclusion of the trial, the

appellants were convicted and sentenced in the manner stated hereinabove.

Hence this appeal.

4. Shri R. K. Tiwari, the learned counsel for the appellants

submitted that the trial Court erred in convicting the appellants. According

to him, there were no eye witnesses examined by the prosecution and its

entire case rested on circumstantial evidence. The circumstances relied upon

by the prosecution were not such that would complete the chain so as to

point out the guilt of the appellants. It was urged that though both the

appellants were residing together in the same premises and the evidence

against them had a common thread, the appellant No.2 had been acquitted

of the charge under Section 302 of the Penal Code while on the basis of the

same evidence, appellant No.1 had been convicted. The house in question

from where the body of the deceased was recovered was owned by the

appellants and the conviction only of appellant No.1 under Section 302 of

the Penal Code was not justified. He then submitted that though the body of

the deceased was recovered on 16/07/2012, the incriminating weapons were

212-Cri.Apeal-541-13 4/10

recovered from the same premises on the next day. This was highly

improbable considering the fact that the the place of recovery was common.

It was therefore submitted that the appellants were entitled to be acquitted

by setting aside the judgment of the trial Court.

5. On the other hand, Shri M. J. Khan, the learned Additional Public

Prosecutor for the respondent/State supported the judgment of the trial

Court. He submitted that the recovery of the dead body from the house of

the appellants itself was a circumstance which was required to be explained

by the appellants. No such explanation was forthcoming from the appellants.

It was further submitted that the deceased was last seen in the company of

appellant No.1 and therefore in absence of any explanation on her part in

that regard from her, the conviction was justified. The learned Additional

Public Prosecutor referred to provisions of Section 106 of the Evidence Act

and submitted that the burden in this regard was on the appellants which has

not been discharged. The learned counsel placed reliance on the judgment

of Supreme Court in State of Rajasthan vs. Thakur Singh (2014) 12

Supreme Court Cases 211. It was then submitted that recovery of the

ornaments at the instance of appellant No.1 as well as recovery of

incriminating weapons and blood stained clothes had been duly proved and

the trial Court was justified in relying upon said recovery. It was thus urged

that all these circumstances leading to the guilt of the appellants had been

212-Cri.Apeal-541-13 5/10

duly proved and the chain of circumstances was duly completed. It was

therefore submitted that the appeal deserves to be dismissed.

6. With the assistance of the learned counsel for the parties, we have

perused the entire material on record and we have also gone through the

impugned judgment. The fact that the death of the deceased was homicidal

in nature is not seriously in dispute. The recovery of her dead body which

had been cut into pieces itself indicates the fact that the same was homicidal.

The prosecution has relied upon the deposition of PW-6 Dr Nilesh Gosavi

below Exhibit-49 in that regard. He has proved the Post Mortem Report at

Exhibit-51 which clearly proves her homicidal death.

As noted above, there are no eye witnesses available for being

examined in the present case. The prosecution has relied upon various

circumstances to bring home the guilt of the appellants. PW-1 Digambar

Gawai was examined below Exhibit-35. He was the husband of Nandabai.

He has stated that his wife was acquainted with appellant No.1 and they

were on visiting terms with each other. He has then narrated the incident

that occurred on 08/07/2012 when his wife went along with their son Akash

for purchasing puffed rice. The son returned alone and he had told his father

that his mother had gone to the house of the appellants. The appellant No.2

was also known as Mistry. He has then stated that as his wife did not return

after a considerable period of time he started searching for her. He made

212-Cri.Apeal-541-13 6/10

enquiries with the appellant No.1 who told her that he had received a phone

call and was informed that somebody was ill and she had hurriedly left her

home. A missing report was lodged at Exhibit-36 along with the photograph

of his wife. The search continued till 15/07/2012. On the next day he was

called at the police station where he was informed by the police that they

had received information that his wife had been killed at the place of the

appellants. They proceeded to the house of the appellants where some

people were digging in the third room of the house. Both the appellants

were present there. Thereafter seven pieces of a human body were removed.

The informant identified said body to be that of his wife. He then lodged a

report at Exhibit-37 and the First Information Report was recorded at

Exhibit-38.

This witness was cross examined. However, nothing much has

been even suggested to him with regard to the veracity of his entire

testimony. There are no suggestions of any substance given to him so as to

doubt his version.

7. PW-5 Satish was examined vide Exhibit-43. He was the panch

witness when the body of Nanadabai was recovered from the house of the

appellants. A neighbour Shilabai Jadhav was examined as PW-3 below

Exhibit-41. She has stated that she was residing in the vicinity of the houses

of the appellants as well as Nanadabai. She has stated that on 08/07/2012

212-Cri.Apeal-541-13 7/10

when she was at home, Nandabai had called on her. As said witness was

performing pooja, Nandabai had said that she would come back after visiting

the house of the appellants. Her cross examination is also of not much

significance. The grocery shop owner Vishnu Deshmane was examined as

PW-4 below Exhibit-42. He has stated that on 08/07/2012 Nandabai had

come to his shop for purchasing puffed rice. Thereafter Nandabai had told

her son that she would come home after visiting the place of appellant No.1.

In his cross examination this witness has stated that he was not knowing

where Nandabai had gone after purchasing grocery.

Seizure of the clothes was proved in the deposition of PW-7 below

Exhibit-54. The prosecution also examined PW-8 Narayan Tandale below

Exhibit-57-A to prove recovery of the body as well as ornaments that were

worn by the deceased. The reports of Chemical Analyser were proved by

PW-9 below Exhibit-65.

The statement of the appellants under Section 313 of the Code of

Criminal Procedure was recorded. However both the appellants have not

stated anything therein in their defence.

8. The circumstances relied upon by the prosecution are with regard

to recovery of the body of Nandabai from the house of the appellants,

recovery of the ornaments that were worn by the deceased as well as

recovery of the weapons and blood stained clothes from the appellants. As

212-Cri.Apeal-541-13 8/10

regards the discovery of the body from the house of appellants is concerned,

the same has been proved in the deposition of PW-5 Satish. The spot

panchanama clearly indicates the recovery of the said body from the third

room in the house of the appellants. As noted above, the appellants were put

this circumstance while recording their statement under Section 313 of the

Code of Criminal Procedure. There is no explanation coming forth from the

appellants in that regard. Even the cross examination of PW-5 does not

indicate that any attempt was made to discredit his version. Similarly on

17/07/2012, the incriminating weapons were recovered at the instance of

appellant No.1 as per Exhibit-46. They were also recovered from the house

of the appellants as per the panchanama at Exhibit-47. On the next day, the

ornaments belonging to the deceased were also recovered at the instance of

appellant No.1 as per memorandum at Exhibit-57. The blood stained clothes

have been recovered at the instance of appellant No.2 as per memorandum

at Exhibit-55. The same has been proved in the deposition of PW-7 Bharat.

It can thus be seen that the prosecution has succeeded in proving that the

dead body of Nandabai was recovered from the house of the appellants.

Similarly, her ornaments, the incriminating weapons as well as blood

stained clothes were also recovered at the instance of the appellants.

9. It is to be noted that though the burden of proving the guilt of the

accused is on the prosecution, the provisions of Section 106 of the Evidence

212-Cri.Apeal-541-13 9/10

Act require any fact which is within the special knowledge of any person to

prove the same. The learned Additional Public Prosecutor has rightly relied

upon the judgment of the Supreme Court in State of Rajasthan (supra)

wherein the Honourable Supreme Court held that in case where certain facts

pertaining to crime can be known only to the accused, the same need to be

explained by the accused and if the same is not done then it is strong

circumstance pointing to his guilt based on those facts. In the present case

also it was for the appellants to explain as to how the body of said Nandabai

was found buried in their house. Absence of any explanation in that regard

by the appellants is a strong circumstance against them.

10. In this background if the entire evidence on record is appreciated,

it cannot be said that the trial Court committed any error in convicting the

appellant No.1 for the offence punishable under Section 302 read with

Section 201 and Section 404 of the Penal Code. Similarly, the conviction

of appellant No.2 under Section 201 of the Penal Code is also justified in

view of his act of attempting to conceal the blood stained clothes of appellant

No.1. The submission made on behalf of the appellants that as the house

in question was owned and occupied by both the appellants and the acquittal

of appellant No.2 for the offence punishable under Section 302 of the Penal

Code ought to be considered as the factor for acquitting the appellant No.1 of

the said offence cannot be accepted. The evidence on record indicates that

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Nandabai had gone to meet appellant No.1 at her house on 08/07/2012 after

meeting PW-3 Shilabai. This fact was also narrated to the husband of

Nanadabai by their son. The appellant No.1 also sustained simple injuries as

per medical certificate at Exhibit-53. There is again no explanation as to how

the appellant No.1 sustained the same. In that view of the matter, the

judgment of the trial Court does not call for any interference.

11.

In view of aforesaid the Criminal Appeal is dismissed.

Appellant No.2 is directed to surrender before the learned

Sessions Judge, Buldana within a period of eight weeks to undergo the

remaining sentence.

                                                      JUDGE                              JUDGE






    Asmita